text:
    Sidney D. Bayer, Plaintiff-Appellee, v. Zoning Board of Appeals of the City of Chicago, Harry F. Chaddick, Morgan M. Finley, John P. Kringas, Hubert F. Messe, Cecil A. Partee, Members, John P. Maloney, Zoning Administrator of the City of Chicago, Sidney D. Smith, Building Commissioner of the City of Chicago, and City of Chicago, Defendants-Appellants.
    Gen. No. 53,659.
    First District, Third Division,
    June 18, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellants.
    No brief for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

This is an appeal by defendants from an order of the trial court reversing a decision of the Zoning Board of Appeals of the City of Chicago. The Zoning Administrator had denied plaintiff’s application to erect a proposed structure on his property. Plaintiff then applied to the Board of Appeals for a variation from the requirements of the Chicago Zoning Ordinance. After a hearing the Board of Appeals denied the request for the variation. Plaintiff filed an action for administrative review in the Circuit Court, and that court entered a judgment reversing the decision of the Board of Appeals and allowing the variation requested by plaintiff. Defendants appeal from that judgment, contending that the Board of Appeals’ determination that the variation should be denied was not against the manifest weight of the evidence.

Certain neighbors were given leave to intervene in the trial court. They participated in the hearing before the Board and in the proceedings in the trial court. They have also filed an appearance and brief in this court asking that the judgment be reversed.

Appellee has failed to file an appearance or answering brief in this court. While defendants request that we reverse the judgment without further explanation because of that failure, we have examined the record to determine the merits of the appeal.

The subject property is a through-lot located at 600 West Stratford Place, Chicago. A through-lot is one which goes from one street to another without an alley in between. The property measures 60 by 200 feet, is zoned R-7 and is bound by Stratford Place on the south and by Cornelia Avenue on the north. Plaintiff’s proposed structure would consist of a building combining two T shaped units, with the legs of the T’s approaching the respective streets. The building would be 14 stories high and have 82 apartment units.

The Chicago Zoning Ordinance (Municipal Code of Chicago 1965, c 194 A, § 7.9-6 (a and b)) has alternate provisions governing the construction of a building on a through-lot which measures at least 125 feet in depth. There either must be: an unobstructed open strip located midway between the streets and running across the full width of the lot; or else an unobstructed open side strip along all adjacent lot lines. On the subject lot having a depth of 200 feet, the ordinance would require either an unobstructed median strip of 34 feet, or else unobstructed side strips of 22 feet on each side of the proposed building. However, the nature of the proposed structure would not permit compliance with either provision of the ordinance. Thus plaintiff sought a variation from the Board of Appeals.

At the hearing before the Board of Appeals, plaintiff testified that he paid $30,000 for the subject property in 1946. Plaintiff’s expert witness, a real estate broker and appraiser, testified that if the variation were not granted, the property would be worth $110,000 to $120,000. He then testified that if the variation were granted the property would be worth $120,000 to $130,000. Subsequently he changed his testimony to state that if the variation were granted, the property would be worth $140,-000 to $150,000.

Plaintiff’s architect testified at the hearing that he never considered the possibility of erecting two separate buildings on the property, one facing on Stratford and one facing Cornelia, although he recognized that this type of construction would be in compliance with the through-lot provisions of the ordinance.

The Alderman of the ward in which the property was located and two neighbors testified that a hardship and economic change would be created if the variation were granted. They also testified that the proposed structure would affect the light, air and heat of adjacent townhouses.

On administrative review, the court’s function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence. DeGrazio v. Civil Service Commission of City of Chicago, 31 Ill2d 482, 202 NE2d 522 (1964). A court cannot substitute its judgment for that of an administrative agency, and will not overturn administrative findings unless they are without substantial foundation in the record. Schwarze v. Board of Fire and Police Commissioners, 46 Ill App2d 64, 196 NE2d 724 (1964). Consequently we need only determine whether there was competent evidence to support the decision of the Board of Appeals.

We find that the decision of the Board of Appeals denying plaintiff’s application for a variation from the provisions of the zoning ordinance of the City of Chicago was amply supported by the evidence, and that the trial court erred in reversing that decision.

Section 11.7-3 of the Chicago Zoning Ordinance provides that the Board of Appeals may not grant a variation unless the following three conditions are fulfilled:

“A. The property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in the district in which it is located;
“B. The plight of the owner is due to unique circumstances ; and
“C. The variation, if granted, will not alter the essential character of the locality.”

The ordinance goes on to say that the Board of Appeals should grant a variation only if the “purpose of the variation is not based exclusively upon a desire to make more money out of the property.”

While there was evidence presented to the Board of Appeals that there were no unique circumstances affecting the property and also that a granting of the variation would in fact alter the essential character of the locality, we deem it unnecessary to consider that testimony. We find that there was substantial evidence to justify the Board of Appeal’s decision because of the clear showing that the property in question was yielding a reasonable financial return under the permitted use.

Plaintiff’s own witnesses established that the value of the subject property had nearly quadrupled during his years of ownership. This considerable increase in value took place without the granting of a zoning variation. Plaintiff acquired the property in 1946 at a cost of $30,-000. His expert witness, a real estate broker and appraiser, testified before the Board of Appeals in 1968 that under its permitted use, the property currently was worth up to $120,000. Plaintiff did not, and obviously could not, introduce any evidence to show that a value of $120,000 did not constitute a reasonable return on the property. The only evidence that he introduced, accepting the revised testimony of his expert, was that he could add $30,000 to the property value if the zoning variation was granted. However the difference in the property value with or without the variation was irrelevant to the determination of the issue as to whether the property was yielding a reasonable financial return under the existing zoning requirements. It is apparent that the subject property yielded a reasonable return without the variation. Therefore the Board of Appeals correctly denied plaintiff’s application for the variation.

Accordingly, the judgment of the Circuit Court is reversed, and the cause is remanded with directions to the trial court to affirm the order of the Board of Appeals.

Judgment reversed and cause remanded with directions.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Owens, Defendant-Appellant.
    Gen. No. 53,702.
    First District, Third Division.
    June 18, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, 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 Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant Louis Owens was charged with the crimes of armed robbery and aggravated battery. After a jury trial, he was found guilty of both offenses, and sentenced to the penitentiary for twenty to forty years, the sentences to run concurrently. Defendant appeals, contending that the introduction into evidence of a statement made to one of the arresting officers constituted prejudicial error, and that the pretrial identification procedure employed by the police was so grossly suggestive as to have violated due process of law. Defendant conducted his own defense. However at trial, the court appointed an assistant public defender to aid in the defense. The facts as adduced at trial are as follows.

While making a delivery, Roger Russell, a laundry truck driver, was robbed and shot by a man whom he identified as defendant. This took place at about 11:00 a. m. on January 24, 1968 at 8530 South Justine Street, Chicago. Russell testified that as he returned to his truck, he passed within three feet of defendant. As he stepped into the truck, he turned around and saw defendant about six inches away and holding a gun in his hand. Defendant ordered him to get back in the truck or he would kill him. Russell knocked defendant down, and also knocked the gun from his hand. They scuffled; defendant grabbed the gun and shot Russell in the leg. As Russell lay on the floor of the truck, defendant held the gun on him, took about $100 and fled. Russell stated that he never took his eyes off defendant because he didn’t know what was going to happen next. When the police came, Russell described his assailant as a male negro, 45 or 50 years old, five feet nine or ten inches tall, weighing about 175 pounds, wearing a red shirt, green sweater, dark pants, black shoes and socks, a beige coat and a green beany.

Officer O’Neill, one of the arresting officers, testified that when notified of the robbery, he, with Officers Sihocky and Douma, proceeded to the vicinity of the occurrence, boarded a bus and arrested defendant. Defendant was a male negro, approximately 48 years old, five feet nine inches, 175 pounds, and was wearing a green sweater, maroon shirt and bluish-gray trousers. A search of defendant revealed that he had a revolver with three live cartridges and one expended shell, and also that he had $100 in his possession. The arresting officers searched the bus, and found a beige coat and green cap on the floor two seats in front of where defendant had been sitting. Over defendant’s objection O’Neill was permitted to testify that defendant told him that he shot Russell in self-defense.

As a result of the gunshot, Russell’s left femur was shattered. He underwent surgery, was placed in traction, and then had to wear a cast from his chest to his toes. He was hospitalized for over five weeks. Russell identified defendant as his assailant, both at the hospital and at trial. He also testified that the gun recovered from defendant’s person was similar to the gun used by his assailant.

Officers Adams and Parker, investigating police officers, testified that defendant admitted to them that he attempted to hold up Russell; a struggle ensued; Russell was shot and he took Russell’s money.

Defendant first contends that the introduction into evidence of a statement made by him to Officer O’Neill that he shot Russell in self-defense constituted reversible error.

Prior to trial, defendant filed several pro se motions, including one to suppress any oral statements he may have made, claiming that any such statements were made before he was informed of his constitutional rights and because the statements were the product of physical coercion. At the hearing on the motion, all of the police officers involved testified that they had given defendant his constitutional warnings and also denied that they had struck or abused defendant. The assistant State’s Attorney then informed the court that no statements had been made by defendant to Officer O’Neill or his two partners. The judge informed defendant that since the prosecutor had stated that there were no statements made to O’Neill, anything defendant had said to O’Neill or his two partners would not be admitted into evidence. The judge also ruled that the statements made to Officers Parker and Adams were voluntarily made after defendant had received his constitutional warnings, and would be admissible in evidence. There is no claim of error in that ruling. At trial, notwithstanding the court’s earlier announcement, O’Neill was permitted to testify that defendant had told him that the shooting was an accident, that it happened in self-defense.

We are of the opinion that the introduction into evidence of the oral statement made by defendant to O’Neill, although improper because of the trial judge’s earlier ruling, amounted to harmless error.

Where the record contains sufficient competent evidence to establish defendant’s guilt beyond a reasonable doubt, the judgment will not be reversed for error in admitting evidence unless it can be seen that the error was prejudicial. People v. Baker, 365 Ill 328, 6 NE2d 665 (1937). As stated in People v. Oberholdt, 359 Ill 39, 193 NE 608 (1934), “. . . the admission of incompetent testimony will not constitute reversible error if it appears that such testimony could not reasonably have affected the result.” (at p 40)

In the instant case, the testimony of O’Neill concerning defendant’s statement did not constitute reversible error in light of the overwhelming evidence of defendant’s guilt. Russell had an excellent opportunity to view his assailant, particularly during their struggle, and he testified that he never took his eyes off defendant. Russell immediately gave a clear and accurate description of the assailant to the police, and defendant, fitting that description perfectly, was arrested shortly afterwards in the area of the crime. When defendant was arrested, he was carrying a revolver with three live cartridges and one expended shell. Russell testified that this gun resembled the weapon used by his assailant. Defendant also had in his possession the sum of one hundred dollars, the same amount which had been taken from Russell. Moreover O’Neill’s testimony as to defendant’s admission was merely cumulative in nature. Both investigating police officers, Parker and Adams, testified without objection that defendant had admitted his guilt to them. It seems clear that O’Neill’s testimony as to defendant’s statement could not reasonably have affected the result, and the introduction into evidence of that statement was not reversible error.

Defendant, relying on Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967 (1967), next argues that the police identification procedure was so grossly suggestive as to have violated due process of law and thus rendered the in-court identification of defendant by Russell constitutionally inadmissible.

After defendant was arrested, he was given his constitutional warnings, then taken to a police station where he was questioned and admitted his guilt to the two detectives. Subsequently he was brought to the hospital where Russell had been taken. Defendant then was told to put on the beige coat and green cap which had been found on the floor of the bus. While wearing handcuffs he was shown singly to Russell, and Russell identified him as his assailant.

In Stovall, supra, the victim was stabbed eleven times and was scheduled to undergo major surgery for the injuries. Defendant was brought to the victim’s hospital room, handcuffed to one of five policemen accompanying him, and the victim identified defendant as the man who had stabbed her and murdered her husband. The court, while condemning the practice of showing suspects singly to persons rather than as a part of a lineup, noted that a claimed violation of due process arising out of a one-man show-up depended on the totality of the circumstances surrounding it. The court went on to hold that, under the emergency circumstances of that case, the single confrontation at the hospital was permissible.

In People v. Boyce, 113 Ill App2d 266, 252 NE2d 71 (1969), the victim was shot in the leg while trying to prevent a theft. As a result of his injuries, he was hospitalized for five months, although there was no evidence that his condition was ever critical. Several days after the crime, both defendants were taken to the victim’s hospital room and were identified by him. This court held that since the victim was hospitalized for five months and could not be moved from- the hospital, the police were entirely justified in bringing the two defendants to the hospital room for a confrontation.

Similarly in the instant case, defendant’s right to due process was not violated by the identification procedure employed by the police. Russell had sustained a serious injury, the shattering of a femur. He eventually underwent surgery, was in traction for several weeks and then was placed in a cast from chest to toes. In view of these circumstances, we believe that the police conducted the only feasible identification procedure in taking defendant to Russell’s room. Nor did requiring defendant to wear the coat and cap at the confrontation violate his due process. Caruso v. United States, 406 F2d 558 (CA 2nd 1969).

Even if we were to determine that the pretrial confrontation was grossly suggestive, the in-court testimony of the identifying witness would still be permissible as long as the record clearly revealed that the identifying witness’ prior observation of defendant was sufficient to serve as an independent origin for the in-court identification. People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152 (1969); People v. Cook, 113 Ill App2d 231, 252 NE2d 29 (1969). As we have already noted, Russell’s opportunity to observe his assailant was excellent. His description to the police was detailed and accurate. He identified defendant just a few hours after the robbery had occurred. Russell’s prior observation was more than sufficient to serve as an independent origin for the in-court identification.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mitchell Benton, Defendant-Appellant.
    Gen. No. 53,728.
    First District, Third Division.
    June 18, 1970.

      Howard T. Savage, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Reilley, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Mitchell Benton, was indicted for the unlawful use of a weapon in violation of Ill Rev Stats 1965, c 38, § 24-1(a)(7). After a non-jury trial he was found guilty and sentenced to a term of three to five years in the penitentiary.

At the time of his arrest on July 14, 1966, Benton was standing on a street corner holding a 12-ounce soft drink bottle which a companion was attempting to ignite. Two Chicago police officers, assigned to a major civil disorder on Chicago’s west side, saw the men and approached them from the rear. There was an odor of gasoline in the immediate vicinity. Benton, startled by the officers, threw the bottle to the ground. The bottle was half-filled with a fluid that smelled like gasoline; a rag protruding from its neck was saturated with the fluid. Benton’s hands smelled of gasoline. As he was arrested he exclaimed, “We almost got that wagon.” He was referring to a police vehicle, occupied by seven policemen, parked across the street. A subsequent chemical analysis established that the fluid was gasoline.

No question is raised concerning the sufficiency of the evidence. The issue is whether the possession of a device such as Benton had in his hand — which is known as a Molotov cocktail — was a criminal offense in July 1966. The indictment alleged:

“. . . that on July 14, 1966, . . . Mitchell Benton committed the offense of unlawful use of weapon, in that he, knowingly possessed and carried a bomb containing an explosive substance, to wit: a Molotov cocktail, in violation of Chapter 38, Section 24-1, (a) (7), of the Amended Illinois Statutes, 1965.”

The defendant contends that the indictment was faulty in that it charged him with committing an offense which was not in violation of Illinois law. The State contends that the indictment charged an offense in conformity with the applicable statute. The difficulty arises from the fact that the 74th General Assembly passed three acts which amended the existent statute on the unlawful use of weapons. The defendant relies upon one, the State upon another.

At the time the 74th General Assembly convened, the law was as follows:

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
“(7) Sells, manufactures, purchases, possesses or carries any weapon from which more than 8 shots or bullets may be discharged by a single function of the firing device.” Ill Rev Stats, 1963, c 38, § 24-1, (a)(7).

The first of the acts (House Bill 146) amending this statute was passed in March 1965. The act amended subsections (1) and (7) of section 24-1(a). Subsection (7) was amended by the addition of the following words:

“. . . , any shotgun with a barrel less than 18 inches in length, or any bomb, bombshell, grenade, bottle or other container containing an explosive substance, such as but not limited to black powder bombs and Molotov cocktails.”

This is the amendment upon which the State relies and under which the defendant was indicted.

The second amendatory act (Senate Bill 454) was passed on June 8, 1965. This act amended subsection (2) of section 24-1 (a). The act omitted the Molotov cocktail amendment to subsection (7) which had been adopted in March. The act repeated verbatim the language of (7) as it appeared in the 1963 statute.

The third amendment (House Bill 1022) was passed on June 27, 1965. This amendment added a new subsection, (8), to section 24-1 (a). As in the case of Senate Bill 454, this bill omitted the March amendment to subsection (7). Subsection (7) of House Bill 1022 made no mention of a Molotov cocktail; it repeated word for word subsection (7) of the 1963 statute by stating that a person commits the offense of unlawful use of weapons when he knowingly:

“(7) Sells, manufactures, purchases, possesses or carries any weapon from which more than 8 shots or bullets may be discharged by a single function of the firing device.”

This is the amendment upon which the defendant relies.

House Bill 1022 was the last legislative enactment in 1965 on the subject of unlawful use of weapons. In asserting that the possession of a Molotov cocktail was not a violation of Illinois law, the defendant points to the well-recognized rule that when inconsistent amendments to the game statute are adopted at the same session of the legislature, the later amendment in point of time controls. S. Buchsbaum & Co. v. Gordon, 389 Ill 493, 59 NE2d 832 (1945). This rule becomes operative only if it is impossible to give effect to both amendments. Two acts passed at the same session of the legislature are not to be construed as inconsistent if it is possible to construe them otherwise. People v. Village of Oak Park, 372 Ill 488, 24 NE2d 571 (1939). For a later act to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand together. People v. Metropolitan Sanitary Dist., 14 Ill2d 271, 150 NE2d 361 (1958). It is only where there is such a clear repugnance between the acts that the provisions of both cannot be carried into effect that the later law must prevail. People v. Holderfield, 393 Ill 138, 65 NE2d 443 (1946). The fundamental question, as in all cases of statutory construction, is the intention of the legislature rather than the chronological priority of the acts. People v. Southern Ry. Co., 17 Ill2d 550, 162 NE2d 417 (1959).

The acts passed in the 1965 legislative session amending section 24-1 (a) were not repugnant to each other. Each one amended different subsections of section 24-1 (a). The first act (HB 146) changed subsections (1) and (7); the second act (SB 454) amended subsection (2), and the third act (HB 1022) added a new subsection. The amendments were cumulative, not contradictory; all three can be given effect. The fact that the last two acts did not repeat the subsection (7) amendment is of no consequence; the fact that they were not inconsistent with it is of major consequence. In People v. Chatman, 38 Ill2d 265, 230 NE2d 879 (1967), the court considered two legislative amendments to section 28-1, c 38, Ill Rev Stats 1963. The first amendment changed the penalty provision of subsection (c); the second amended subsection (a) (5) and added a new subsection (d), but it ignored the prior amendment to subsection (c). Since the second amendment, which was later in time, left the old penalty provision of subsection 28-1 unchanged, the defendant contended that the revised penalty provisions set forth in the first amendment were repealed. The court held that the amendments were not in conflict and that it was possible to give effect to both. In People v. Lloyd, 304 Ill 23, 136 NE 505 (1922), the court was also confronted with two amendments to section 46 of the Criminal Code passed by the same session of the legislature. One changed the preexisting law as to the penalty for conspiracy and the other exempted farmers from the operation of section 46. It was contended that the amendment exempting farmers, being the last amendment, repealed the new penalty for the offense. The court rejected this contention and held that the legislature intended to enact two separate and unrelated laws, one relating to the penalty and the other removing the activities of farmers and others from the operation of section 46.

The failure of SB 454 and HB 1022 to incorporate within their acts the Molotov cocktail amendment does not indicate that it was the intention of the legislature to repeal that amendment. Each of the amendatory acts repeated section 24-1 (a) in its entirety. This was in compliance with the constitution of our state which prohibits the amendment of a statute by reference to its title only and requires that the section amended shall be inserted at length in the new act. Article IV, section 13, Constitution of Illinois, 1870. The three acts, therefore, not only set forth the subsection they were amending, they also set out in full the subsections they were not amending.

In ascertaining the intention of the legislature the whole record of the legislature, including acts passed at subsequent sessions, can be taken into consideration. People v. Southern Ry. Co., supra. The intention of the 74th General Assembly in reference to the three amendatory bills is further seen by the action taken by the 75th General Assembly. The 1967 session of the legislature confirmed the action of the 1965 legislature by passing bills which included all the 1965 amendments. Ill Rev Stats 1967, c 38, § 24-1(a). See also HB 1019, 75th General Assembly, 1967.

We conclude that the 1965 legislature intended to make the possession of a Molotov cocktail a criminal offense and that this law was in effect in July 1966 at the time of the defendant’s arrest.

The judgment of conviction is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hurley P. McGovern, Defendant-Appellant.
    Gen. Nos. 53,169, 53,170. (Consolidated.)
    First District, Second Division.
    June 23, 1970.

      Vincent C. Lopez, of Chicago (George J. Fox, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the offense of operating an automobile while under the influence of alcohol (General Number 53,170) and of the offense of improperly changing traffic lanes (General Number 53,169). He received a fine of $100 and costs on the intoxication finding and a $15 fine on the change of lanes finding. He appeals.

Chicago Police Officer Crossel testified that approximately 11:15 p. m. on September 16,1967, he was operating his police squad car in an easterly direction along 95th Street in Chicago, approaching the East 1200 Block. The officer testified that 95th Street at that point consisted of four lanes of traffic, two eastbound and two westbound, and that he observed the defendant operating his automobile ahead of him in the center of the eastbound lanes, in a straddling or weaving fashion. The officer further testified that a woman operating an automobile behind defendant’s vehicle, and in front of the police vehicle, attempted to pass defendant’s automobile but was unable to do so without crossing the double line in the center of the street. Officer Crossel testified that the woman sounded her horn, that defendant pulled into the southern eastbound lane and allowed her to pass, and that the defendant then returned his vehicle to the center of the eastbound lanes and continued to weave and straddle the lanes.

Officer Crossel halted defendant’s vehicle about 1500 East, approached defendant’s side of the automobile and requested his driver’s license. He testified that he informed defendant of the offense with which he was being charged, and that as he continued to speak to the defendant, the latter’s attitude became insulting. The officer testified that he noticed that defendant’s eyes were bloodshot and that he asked defendant to step from his automobile. As defendant opened the door and attempted to alight, he stumbled and nearly fell to the pavement. The officer also noted that defendant used his vehicle to support himself as he walked. He testified that there was an odor of alcohol on defendant’s breath, and that defendant spoke in a loud and offensive manner to the officer. Officer Crossel stated that he then returned to his vehicle and summoned a tow truck and a police wagon to transport the defendant and his wife (who was a passenger in defendant’s automobile) to the police station.

At the police station the defendant told the officer that he and his wife had been to a wedding reception that evening, that he had two small bottles of beer to drink at the reception, and no other alcoholic drink that day. The officer further testified that defendant’s speech was slurred, that his face was flushed, and that he tended to stumble against the lockers in the station as he walked. The officer expressed the opinion that defendant was under the influence of alcohol and was unfit to operate an automobile at the time of his arrest.

On cross-examination the officer denied issuing any traffic citations at the scene, and stated that he wrote out both citations at the station. He further testified that he wrote out the change of lanes citation in the squad car at the scene of the arrest while he was calling for the tow truck and the police wagon, and that he issued both citations to defendant at the police station. He denied tendering the change of lanes citation to defendant at the scene and taking it back afterwards when defendant and his wife became indignant at its issuance. The officer also denied altering the change of lanes citation to read, “You must appear in Court” from “You may pay this fine before above date,” after defendant and his wife became indignant, and further stated that he had initially mistakenly marked the wrong box in this regard. The officer further testified on cross-examination that when he initially approached defendant’s vehicle, defendant inquired whether he had been speeding and that the officer replied in the negative. He also testified that the defendant was, in fact, not stopped for speeding, but was stopped for improperly changing lanes.

Defendant testified in his own behalf and stated that on the evening in question he and his wife had attended a wedding reception and had left that function about 10:45 p. m. He stated that the only alcohol he consumed the entire day were two 7-ounce bottles of beer at the reception, the last of which had been consumed before 8:00 p. m., at which time dinner was served and the bar closed.

He stated that there was no other traffic on 95th Street at the time he was stopped by Officer Crossel. The defendant testified that when the officer stopped his vehicle he inquired of the officer whether he had been speeding, that the officer replied in the negative, and that he also replied that the defendant had been stopped for straddling lanes. The officer thereupon tendered defendant the change of lanes citation and advised him that the fine could be paid prior to the designated court date. Defendant testified that the officer’s statement in this regard prompted the response, “We will be in court!” Defendant stated that the officer became irritated at their reaction, that he took back the citation, and that he returned to his vehicle. About ten minutes later the officer returned to the defendant’s automobile with both the change of lanes citation and the intoxication citation, telling the defendant that he was under arrest. After a short wait at the scene, the defendant and his wife were transported by a police wagon to the police station. Defendant testified that he was made to take no tests at the station, and stated that he was not under the influence of alcohol on the evening in question.

Mrs. McGovern, defendant’s wife, testified for the defense and substantially corroborated the testimony given by her husband.

Defendant contends that he was not proven guilty of the offense of improperly changing lanes, inasmuch as the eastbound lanes of traffic along 95th Street, which defendant is alleged to have been straddling, were not marked as required by the ordinance.

Section 211 of chapter 27 of the Municipal Code of the City of Chicago (Chicago, Ill, Municipal Code, c 27, § 211 (1969)) provides:

“Where traffic lanes have been marked to preserve a regular alignment of traffic, it shall be unlawful for the driver of any vehicle to fail or refuse to keep his vehicle within the designated boundaries of any such lane except when lawfully passing another vehicle.”

There is no evidence in the record which in any way indicates that the eastbound lanes of traffic along 95th Street, between 1200 and 1500 East, which defendant is alleged to have been straddling, were in any way marked or delineated so as to bring those lanes of traffic within the purview of the ordinance. Absent such evidence, defendant cannot be said to have violated the ordinance; consequently the judgment in General Number 53,169 must be reversed.

Defendant also contends that the People’s evidence in the charge of operating the automobile under the influence of alcohol is incredible and so unsatisfactory as to require reversal. We disagree.

The matters raised by defendant relate solely to the credibility of Officer Crossel’s testimony. Defendant states that the officer testified that he followed the vehicles of the defendant and the unidentified woman behind defendant from “Woodlawn Avenue to 1200 East,” whereas Woodlawn Avenue is, in fact, 1200 East. The officer was otherwise very explicit in his testimony with regard to block numbers, and consequently this was a matter of weight and credibility for the trier of fact to determine.

Defendant also suggests that the officer contradicted himself on several occasions, as when he initially testifled that defendant’s breath had a “strong” odor of alcohol, but then stated that it was a “moderate” odor. Likewise, the matter of defendant’s stumbling or falling as he alighted from his vehicle is raised as another contradiction. While a reading of the context of the testimony, wherein these alleged contradictions arose, reveals that they were explained fully by the officer, the resolution of inconsistencies in a witness’ testimony is a matter for the trier of fact.

Another matter for resolution by the trier of fact was the officer’s testimony with regard to the drawing and the issuance of the two citations. He testified that he wrote out the change of lanes citation at the scene of the arrest, but that he did not issue either citation to defendant until they reached the police station, the officer stating that he could not issue a citation for operating a vehicle while under the influence of alcohol in the field. Further, the matter of the alteration on the change of lanes citation and the circumstances of that alteration was clearly a matter for the trier of fact. See generally, People v. Zayas, 102 Ill App2d 166, 243 NE2d 536; People v. Walker, 100 Ill App2d 282, 241 NE2d 594.

Defendant also contends that the trial court considered improper matters in arriving at the finding of guilty of operating a motor vehicle while under the influence of alcohol. In arriving at his determination, the trial judge commented:

“Well, the Court has listened to the evidence presented before it and at no time has the Court heard denials of the officer’s statements with regard to the statements made by the defendant in the police station at the time he was being interviewed with regard to [the mayor] and getting the police officer’s job and anything like that, and the Court, together with all the rest of the evidence, and the weaving and the speeding and the officer’s observations, finds the defendant guilty of driving under the influence of intoxicating liquor.”

Generally, in a bench trial of a criminal case, the trial judge will be presumed to have considered only competent evidence in arriving at his findings. People v. Robinson, 30 Ill2d 437, 197 NE2d 45. However, where it affirmatively appears from the record that the trial judge considered incompetent evidence prejudicial to the defendant, the judgment will not be allowed to stand. People v. Grodkiewicz, 16 Ill2d 192, 157 NE2d 16. See also People v. Smith, 55 Ill App2d 480, 487-88, 204 NE2d 577.

The record in the instant case reveals that the trial judge not only gave weight to evidence irrelevant to the issue of intoxication, but also relied on matters contrary to the evidence in the record. Police Officer Crossel, the defendant, and the defendant’s wife all testified that the defendant was not speeding prior to his arrest, and that he was not stopped for speeding. The trial .judge, on the other hand, expressed the opinion that the defendant had been speeding. The trial judge also took verbal note of the fact that defendant failed to deny the testimony of Officer Crossel with regard to defendant’s alleged threats concerning the officer’s job and reporting him to the mayor, which bore no relevance to the issue of whether the defendant had operated his vehicle while under the influence of alcohol.

Since it cannot be determined from the record the degree of weight the trial judge gave to these factors in arriving at the finding of guilty, the judgment in General Number 53,170 must be reversed and the cause remanded.

Defendant also contends that the trial judge was in error in denying his post-trial motion seeking a new trial for newly discovered evidence in the driving while intoxicated matter. In light of our decision in General Number 53,170, it is unnecessary to consider that contention.

For these reasons the judgment in General Number 53,169 is reversed, and the judgment in General Number 53,170 is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment in General No. 53,169 reversed. Judgment in General No. 53,170 reversed and cause remanded with directions.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Horton, Lester Horton, Minors, Defendants-Appellants.
    Gen. No. 53,323.
    First District, Second Division.
    June 23, 1970.

      Stanley J. Sacks, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph Romano, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook County, Juvenile Division, entered upon a finding that Willie Horton and Lester Horton are delinquent minors. Willie Horton was admitted to probation for a period of one year and Lester Horton was committed to the Illinois Youth Commission.

Delinquency petition 66J (D) 8738, filed against Willie Horton, charged that he was a delinquent minor in that he “knowingly obtained control over a case of Dutch Master Cigars of the value of $200, the property of the Penn. R. R., which property the said respondent knew to have been stolen by another, intending to deprive the said owner permanently of the use and benefit of the said property at 5214 South Princeton Avenue.” Delinquency petition 66J (D) 6751 charged that Lester Horton was a delinquent minor in that he “without authority knowingly entered into two railroad cars of the Penn. R. R. in the vicinity of 48th & Shields with the intent to commit therein the crime of theft.”

At the hearing on the delinquency petitions, the first witness called by the State was Joseph Peck, a security officer for the Pennsylvania Railroad, who testified as follows. At 11:35 a. m. on December 11, 1967, while performing his duties as security officer, he found that a railroad ear numbered PRR 306730, containing a load of cigarettes destined for transfer to the Western Railroad had been broken into. The car was standing in the Pennsylvania Railroad classification yard near Forty-eighth Street and Princeton Avenue. The door seals had been broken and were lying on the ground. Further inspection revealed that thirteen cases of cigarettes were missing from the car. He reported his findings to the Chicago Police Department.

Officer Richard Skonieczny of the Chicago Police Department, the second witness called by the State, testified as follows. On December 11, 1967, he went to investigate a report of a disturbance created by teenagers at the rear of a home at 5244 Princeton Avenue. Upon his arrival at that address, he found neither a disturbance nor teenagers. He proceeded down the alley and entered the basement of the building located at 5214 Princeton, where he found Willie Horton and a case of cigars. Willie Horton was taken into custody and transported to the ninth district station, where he was turned over to the Juvenile Division.

On cross-examination, Officer Skonieczny testified that he entered the basement at 5214 Princeton because a woman who appeared on the back porch of a building in the neighborhood pointed to it. Permission to enter the premises was not obtained from the owner prior to entry. Willie Horton does not reside at the address where he was discovered. Finally, Officer Skonieczny testified that the case of cigars discovered, which was in plain view, was torn open. It contained two thousand cigars but was not especially heavy. In the officer’s opinion, it was not especially heavy and a person of Willie Horton’s size could carry it without assistance. No cigars were found on Willie Horton’s person.

Henry Geter, third witness called by the State, testified as follows. He is fourteen years old and in the sixth grade. Between ten and eleven a. m. on December 11, 1967, he, Lester Horton, Willie Horton, and Carnell Reynolds were in the vicinity of Forty-eighth and Shields. They decided to go up on the railroad tracks to see what they could get out of the cars standing there. Two cars were broken into and it was he who broke the seals. (Later he testified that Lester Horton and one Russell Smith, not previously mentioned, broke the seals. On cross-examination he testified that he did not see who broke the seals.) Once the seals were broken, Lester Horton and Russell Smith opened the doors and the boys, seeing that the cars contained boxes of cigarettes, began to remove the boxes. One case of cigars was also taken. He saw both Lester Horton and Willie Horton removing boxes from the railroad cars. Later in the day he went to the police and told them about the incident because he knew the police were looking for them.

On cross-examination, Geter testified that he had been charged as a result of his involvement in the theft and had been admitted to probation for one year. Subsequently, but prior to this hearing he had a conversation with an assistant state’s attorney and was promised help, but the exact nature of the help was not specified. He was not in the basement when Willie Horton was arrested. Prior to that time however, he, along with Russell Smith and Willie Horton, took a case of cigars into the basement. They called to Willie and when he did not answer they knew that something was wrong and fled. Once outside they saw a squad car, but did not see a policeman.

Detective Edward Quinlan of the Chicago Police Department, also called by the State, testified that at 10:30 p. m. on December 12, 1967, he arrested Lester Horton in his home. He took Lester, who was accompanied by his elder sister, to the police station where they were escorted into an office approximately nine feet by ten feet in size. The room contained two desks and four or five chairs. Also present in the room were Carnell Reynolds and his father, Henry Geter, and Russell Smith and his father. Due to lack of chairs, all of the youths remained standing. He advised the boys of their constitutional rights, glancing at, but not reading from, a card. Lester Horton was advised that he could not be required to say anything, that he was entitled to have an attorney, and that if he did not have a lawyer one would be obtained for him. He then advised Lester Horton that he and his brother Willie had been implicated in a burglary of the Pennsylvania Railroad by Henry Geter. Lester Horton then admitted the offense. Willie Horton was not present and Quinlan did not have a conversation with him.

On cross-examination, Detective Quinlan testified that in addition to those previously mentioned, he, his partner Robert Jones, Lt. Hessert of the railroad police, Youth Officer Gerardi, and Detective Flaherty were present in the room at the time the youths were advised of their constitutional rights and questioned. Finally, Detective Quinlan testified that the youths were advised of their constitutional rights as a body rather than individually. Neither Lester Horton nor his sister said anything following the warnings. Lester Horton did, however, nod his head in a gesture usually intended as an affirmative response.

Lt. Emil Hessert, the final witness called by the State, testified that on December 11,1967, he went to the police station and inspected a case of cigars. In response to questions by the court he also testified that subsequent to this inspection he was able to determine that the case of cigars in question had previously on that date been in the control and custody of the Pennsylvania Railroad.

Hessert also testified that he was present when the youths were questioned at the police station and that pri- or to the questioning Detective Quinlan advised them of their constitutional rights, stating that they had the right to remain silent, that anything they did say could be used against them in court, that they had a right to an attorney, that if they could not afford an attorney one would be provided for them and that they may waive each of these rights. Following the giving of the warnings, Lester Horton stated that he had been on the railroad property with several other boys when some cigars were being removed, but he did not state that he took anything. He merely admitted that he was present.

We consider first the appeal of Willie Horton, who has alleged that he was not proven to have committed the offense with which he was charged beyond a reasonable doubt. Several points have been raised in support of this allegation, but we need consider only one, as we deem it to be determinative of the appeal and require reversal.

The basis of the delinquency petition filed against Willie Horton was that he committed the criminal offense of theft by receiving stolen property as defined in Ill Rev Stats (1967), c 38, § 16-1(d). That section provides that one commits this offense when he knowingly receives or obtains control over property which he knows to have been stolen by anothér. Thus, the actual theft of the property must have been accomplished by some other person. One cannot be guilty of both the theft of certain property and of receiving that property once stolen. People v. Grodkiewicz, 16 Ill2d 192, 197, 157 NE2d 16, 19 (1959).

Willie Horton contends, and we must agree, that the evidence introduced against Mm, if believed, establishes that he took part in the burglary and theft which occurred in the Pennsylvania Railroad classification yard. Under the evidence introduced by the State, a finding that he committed the offenses of burglary and theft might have been made, but that evidence does not support the finding of the trial court that he received property knowing it to have been stolen by another, as charged. Since the finding upon which the trial court’s determination of delinquency is not supported by the evidence, it follows that the judgment must be reversed. The argument advanced by the State that it was proper to find Willie Horton guilty of the offense charged must be rejected as requiring a strained interpretation of the evidence (it was argued that the evidence merely showed he aided others) and ignoring the law of criminal accountability. Likewise, the argument that Willie Horton has no standing to complaint since receiving stolen property is a less serious offense than either burglary or theft and since the statutory guidelines for sentencing criminals do not apply to juvenile proceedings is without merit. Such argument ignores the basic precept that a judgment must accord with the proof.

We consider now the contention of Lester Horton on appeal, that the trial court erred in denying his motion to strike that portion of Detective Quinlan’s testimony relating to an admission made during questioning at the police station. He contends that refusal to strike the testimony was error as there was no showing that he was properly advised of his constitutional rights as outlined in Miranda v. Arizona, 384 US 436, 86 S Ct 1602 (1966), or that he knowingly and intelligently waived those rights. He argues that, on the contrary, it is clear from the record that the circumstances surrounding the warnings which were given were such that even if full warnings had been given it would be impossible to find that they were knowingly and intelligently waived. He refers specifically to the fact that each of the youths were not advised of their rights individually, alleges that the warning that anything said might be used against them was not given, and that the crowded conditions in the room were such as to preclude reasoned judgment by a youth, as they operated to intensify the coercive atmosphere of the police station.

The argument of the State is confined to the questions of whether full and adequate Miranda warnings were given and whether Lester Horton knowingly and intelligently waived his rights. We have not been cited to, nor has our research disclosed binding precedent for the proposition that full Miranda warnings must be given to juveniles before admissions or statements made by them during custodial interrogation may be admitted into evidence against them in a juvenile proceeding. We, therefore, believe that the question of whether such warnings are required merits some discussion.

The Supreme Court decision in the case of In re Gault, 387 US 1, 87 S Ct 1428 (1967) established the proposition that the Fifth Amendment privilege against self-incrimination is applicable to juvenile proceedings where the result is likely to be the same or similar to that of a criminal proceeding; i. e., loss of freedom for a period of years. There the court reasoned that the “civil” label attached to juvenile proceedings was, for purposes of application of the Fifth Amendment privilege, mere trapping. It is of no consequence that the confinement may be at a farm or industrial school rather than a penitentiary. The pivotal issue is whether there is a likelihood of loss of freedom for a period of years. This same reasoning has survived the confines of the Gault decision to the end that other constitutional protections have also been applied to juvenile proceedings through its application. See In re Urbasek, 38 Ill2d 535, 232 NE2d 716 (1967); and In the Matter of Samuel Winship, 38 Law Week 4253, March 31, 1970, requiring that State must prove criminal act upon which charge of delinquency is based beyond a reasonable doubt; In re Marsh, 40 Ill2d 53, 237 NE2d 529 (1968), applying Fourth Amendment safeguards against unreasonable searches and seizures to juvenile proceedings; also held that indigent juvenile is entitled to free transcript of proceedings for purposes of appeal.

Each of the privileges and protections above mentioned was established in the area of criminal litigation. It would be illogical to say, on the one hand, that they are applicable to juvenile proceedings and, on the other, deny the procedural safeguards which guarantee their integrity. We believe that the rationale of the above-cited cases requires that the procedural safeguards established by Miranda in criminal proceedings are likewise applicable to juvenile proceedings where the basis of the charge of delinquency is the alleged commission of a criminal offense and it is likely that the proceedings may result in the minor’s loss of freedom for a period of years.

We find the requirements of Miranda to have been satisfied in the instant case. The testimony of the witnesses Quinlan and Hessert is sufficient to establish that each of the required warnings were given prior to questioning. In addition, we are aware of no requirement that constitutional rights be waived in a prescribed manner. All that is necessary is that it be shown that the constitutional rights of the accused are knowingly and intelligently waived. The evidence presented by the State admits of such a conclusion and, therefore, the order of the Circuit Court insofar as it relates to Lester Horton is affirmed and insofar as it relates to Willie Horton is reversed.

Order affirmed in part and reversed in part.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. JUSTICE DRUCKER

text:
    Antonia Vanderlaan, Plaintiff-Appellant, v. Roger Vanderlaan, Defendant-Appellee.
    Gen. No. 53,786.
    First District, Fourth Division.
    June 24, 1970.
    Rehearing denied and opinion modified July 28, 1970.

      Gomberg, Missner and Schaps, of Chicago, for appellant.
    Paul M. Lurie (Fohrman, Lurie, Holstein, Sklar and Cottle, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a judgment denying her petition to modify a decree which had awarded custody of her two youngest children to defendant.

The parties were married on October 13, 1954, and on September 9, 1959, plaintiff was granted a divorce. One child, Debra, was born prior to the divorce and custody was awarded to plaintiff. Defendant was ordered to pay $30 per week for Debra’s support. On December 21, 1962, the original divorce decree was amended by a finding that plaintiff and defendant had resumed “marital relations” after the divorce decree of September 9, 1959; that another child, Jeffery, was born February 26, 1961, fifteen months after the entry of the original divorce decree; that plaintiff was pregnant with child by defendant; and that defendant admitted the paternity of Jeffery and the child in esse. The court found that defendant was their father and ordered him to pay plaintiff $35 per week for their support. Plaintiff and defendant separated some time in 1962.

Another amended order was subsequently entered on February 27, 1963, indicating that the third child, Randy, was born January 2, 1963, and that defendant was his father.

During 1963 and 1964 defendant was in arrears in his support payments and on October 1, 1965, there was an order settling defendant’s child support arrearage at $350 and giving defendant visitation rights with the children.

On August 30, 1966, the court, upon defendant’s petition, ordered that the custody of Debra, Jeffery and Randy Vanderlaan be awarded to defendant until further order of court; that defendant’s support payments be abated; and that plaintiff be given the children for six weeks in the summer and other reasonable visitation rights.

Subsequently, on July 28, 1967, plaintiff filed a petition seeking a modification of the August 30, 1966, order. Plaintiff prayed that the custody of the three children be awarded to her.

On September 21, 1967, the court was informed by the oldest child, Debra, that she desired to return to live with her mother (plaintiff). The parties agreed and pending a hearing on plaintiff’s petition of July 28, the court awarded custody of Debra to plaintiff; Jeffery and Randy to continue in the custody of defendant, and each party to have reasonable visitation rights.

On October 15, 1968, the court held a hearing on plaintiff’s petition to modify the August 30, 1966, order. The court found that plaintiff voluntarily sent defendant a letter dated July 25, 1966, in which she stated that the children would be happy in a small town away from the dangers of a large city and that with defendant they would have a family life since she had to work and could not spend very much time with the children. The court also found that after having sent the letter, plaintiff voluntarily gave custody of the children to defendant; that plaintiff had full knowledge of her acts even though she did not have the advice of counsel; that plaintiff voluntarily agreed to the August 30, 1966, order; that plaintiff and defendant both agreed the other was a fit and proper person to have custody of the minor children; that after August 30, 1966, plaintiff and defendant agreed to allow Debra to return to live with plaintiff; that there had been no change in circumstances affecting the children; and that it was in the best interest of Jeffery and Randy to remain with defendant. Therefore, the court denied plaintiff’s petition to modify the August 30, 1966, order except that Debra was to remain with plaintiff, and Jeffery and Randy with defendant. Each party was granted mutual visitation rights. It is from this order which plaintiff appeals.

Plaintiff contends that defendant, as the putative father of Jeffery and Randy, had no right to the custody of these children born out of wedlock. Plaintiff cites Ill Rev Stats 1967, c 106¾, § 62, in support of her contention. Section 62 provides:

A person charged or alleged to be the father of a child born out of wedlock, whether or not adjudicated the father under this Act, shall have no right to the custody or control of the child except such custody as may be granted pursuant to an adoption proceeding initiated by him for that purpose.

In DePhillips v. DePhillips, 35 Ill2d 154, 219 NE2d 465, plaintiff, the father of a twelve-year-old child born out of wedlock, brought suit against the mother and her purported husband to obtain custody of the child, or in the alternative, visitation rights. Defendant’s motion to dismiss the complaint was denied. After a hearing the trial court entered an order that plaintiff contribute to the support of the child and have rights of visitation. The appellate court reversed and remanded with directions to vacate the decree on the ground that the trial court lacked jurisdiction due to the illegal behavior of the parties. The Supreme Court granted plaintiff leave to appeal. In its opinion the court at page 156 states:

We are not faced in this case with the difficult public policy determination which has troubled courts in other jurisdictions. In Illinois, this determination has been made by our legislature, and is embodied in section 13 of the Bastardy Act of 1872, as amended. At the time of Donna’s birth in 1951, that section provided that “The reputed father of a bastard child shall have no right to the custody or control of such child.” (Ill Rev Stats 1951, c 17, par 13.) As we have previously held, the act in effect at the time of the birth of an illegitimate child must be looked to in determining the rights and liabilities of the father of such child. Di Bella v. Cuccio, 15 Ill2d 580.
Plaintiff suggests that this section prohibits only custody or control but does not expressly proscribe the granting of visitation rights to a parent. Although an argument may be made that a grant of visitation right does not necessarily grant legal custody . . . section 13 of the Bastardy Act, as amended, prohibits not only the granting of custody but also the granting of “control” to a putative father .... In our opinion, a grant of visitation rights of necessity involves a grant of “control” over a minor child. Section 13 clearly embodies a legislative determination that a putative father should have no right to the society of his illegitimate child. (Wallace v. Wallace, 60 Ill App2d 300.) A contrary construction of the statute cannot be justified.
Plaintiff’s complaint in this case prayed that he be granted custody or visitation rights as to Donna. By statute, he was not permitted to have either. Consequently, the complaint should have been dismissed for want of equity in the trial court on defendants’ motion.

In the instant case, the trial court’s orders of August 30, 1966, and October 15, 1968, granting the custody of Jeffery and Randy to defendant were in direct contradiction to the public policy stated in section 62 of the Paternity Act. (Ill Rev Stats 1967, c 106¾, § 62.) We must abide by the “legislative determination that a putative father should have no right to the society” of his children born out of wedlock. (DePhillips v. DePhillips, supra.) Therefore, defendant as the putative father could not be granted custody of the children. (See In re Stanley, 45 Ill2d 132, 256 NE2d 814.)

Defendant argues that plaintiff cannot raise on appeal points neither pleaded nor raised below and that this court cannot consider statutes not relied on in the trial court, specifically section 62 of the Paternity Act. However, in Hux v. Raben, 38 Ill2d 223, 224, 230 NE2d 831, the court states:

Rule 366 [Supreme Court Rules] provides: “(a) Powers. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just ... (5) give any judgment and make any order that ought to have been given or made, . . . .” (36 Ill2d 159.) A similar thought is expressed in the provision of Rule 615 with respect to the review of criminal cases: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 36 Ill2d 182.
“These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system. (See, Friendly, Review of Llewellyn, The Common Law Tradition, 109 U of Pa L Review 1040; Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham LR 477; 64 Harv LR 652.) There are limitations. ‘[A]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.’ (Rentways, Inc. v. O’Neill Milk and Cream Co., (1955) 308 NY 342, 126 NE2d 271.) In exercising the power care should be taken that the litigants are not deprived of an opportunity to present argument.”

In the instant case the appellant in her brief urged the applicability of the Paternity Act and appellee had the opportunity to argue this issue. There is no problem of proof. A court decree had found defendant to be the putative father of Jeffery and Randy and no proof could have been offered by defendant to refute or overcome plaintiff’s appellate theory. Therefore, “for a just result and for the maintenance of a sound and uniform body of precedent” we must apply Section 62 of the Paternity Act and reverse the judgment awarding the custody of Jeffery and Randy to defendant.

Since we have determined to reverse the judgment on the ground of a public policy determination which was not argued in the trial court, we will not review the trial court’s reasons for awarding custody of the children to the defendant. However, we wish to point out the following facts. Plaintiff was originally awarded custody of Debra and later, of Jeffery and Randy; defendant was in arrears in support payments during 1963, 1964 and 1965; plaintiff in 1966 advised defendant that she had to work to help support the children because his payment of $30 per week for the children’s support was inadequate; that she was tired and run down; and that she had little time to spend with the children due to her employment. At the hearing plaintiff testified that she told defendant in 1966 that her request that he take custody of the children was only temporary; and that she has remarried and her present husband has sufficient funds to support the children without any further support from the defendant. We also note that the custody of Debra was changed by agreement of the parties after the order of August 30, 1966, and that the children were thereby separated from each other. In the court’s last order both plaintiff and defendant were found to be fit and proper persons to have custody of the children.

The judgment is reversed and the cause remanded with directions to enter an order granting the custody of all three children to plaintiff.

Reversed and remanded with directions.

STAMOS, P. J. and ENGLISH, J., concur.

       The parties did not remarry.

       At the hearing plaintiff testified she told defendant in 1966 that her request that he take custody of the children was only temporary and that she has remarried and her present husband has sufficient funds to support the children without any further support payment from the defendant.


author: JUSTICE DRUCKER.

text:
    People of the State of Illinois, Appellee, v. James English, Appellant.
    Gen. No. 54,157. (Abstract of Decision.)
    First District, Fourth Division.
    June 24, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE DRUCKER.

Not to be published in fulL


author: MR. JUSTICE LEIGHTON

text:
    Board of Junior College District No. 508, County of Cook and State of Illinois, Plaintiff-Appellee, v. Cook County College Teachers Union, Local 1600, and Norman G. Swenson, President, David Simonson, Assistant to the President, Howard A. James, Vice President, Leon Novar, Member of Negotiating Committee, as Individuals, as Officers of Said Union and as Members and Representatives of the Class of Members of Said Union, Defendants-Appellants.
    Gen. No. 52,465.
    First District, Fourth Division.
    June 26, 1970.

      Kleiman, Cornfield and Feldman, of Chicago, for appellants.
    Sherman Carmell and Sheldon M. Charone, of Chicago (Carmell & Charone, of counsel), for amici curiae.
    James P. Chapman, of Chicago, for James L. Coghlan, amicus curiae.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This appeal is from an order finding defendants Cook County College Teachers Union, Local 1600 (hereafter called Union) and its president, Norman G. Swenson, guilty of contempt of court and imposing sentences of $5,000 fine on Union, $1,000 fine and 30 days in jail on Swenson.

For reversal, defendants contend that (1), the order exceeded the trial court’s jurisdiction because it was based on a void temporary injunction; (2), the injunction order was erroneous; therefore, no judgment of contempt could be predicated on it; (3), the trial court erred in denying their petition for change of venue; (4), the trial judge arbitrarily selected defendant Swenson for punishment solely because he was president of Union; (5), much of the evidence was erroneously admitted, over objection and to defendants’ prejudice; and (6), they were not proven guilty of contempt as required by law.

After this appeal was docketed, two labor organizations: Chicago Federation of Labor and Industrial Union Council (AFL-CIO), Joint Council No. 25, International Brotherhood of Teamsters, etc., were granted leave to appear as Amici Curiae, seeking reversal. In their brief, the Amici argue a point which forms one of defendants’ arguments: that the trial court erred in denying Board’s motion to dissolve the temporary injunction.

Plaintiff in this controversy, Board of Junior College District No. 508, County of Cook (hereafter called Board), operates junior colleges in the Chicago area under the authority of the Public Junior College Act, Ill Rev Stats 1965, c 122, § 101-1, et seq. In November 1966, Board had eight campuses, a total enrollment of about 34,505 students and a full-time teaching staff of approximately 665 teachers. By statute it was Board’s duty to appoint teachers, determine their salaries, establish tenure, provide for teacher removal for cause, prepare and adopt budgets to administer the colleges on its campuses. On October 11, 1966, Board recognized Union as the exclusive representative of the full-time faculty with academic rank employed by Board, except deans, assistant deans, and central administration employees. Thereafter, Board and Union, through committees, began negotiations for a collective bargaining agreement.

November 30, 1966, Board filed a complaint for declaratory judgment and injunction alleging that Union and its members were threatening Board with a strike or concerted withholding of services, illegal acts which would violate the public policy of the state. Board prayed for a decree declaring that Union and its members could not advocate, induce or encourage any employee of Board to strike or engage in concerted withholding of services from Board in support of Union’s proposals or to picket Board for the purpose of inducing a strike or withholding of services. On Board’s application the day suit was filed, a temporary injunction issued restraining Union “[f]rom participating in, or causing, inducing or encouraging, any strike or other concerted withholding of service, or interference with the performance of service, by any employee of plaintiff, or from picketing, parading or patrolling at or in the vicinity of the junior college campuses maintained and operated by plaintiff for the purposes of inducing such strike or other concerted withholding of services.”

Defendant Swenson knew of the injunction order the day it issued, although he did not receive or see a copy of it. That evening, November 30, Union held a meeting of its membership attended by more than 400 of Board’s faculty. Swenson spoke. Members of Union, employees of Board, went on strike November 30 and picketed Board’s campuses December 1 and 2, 1966, and on January 6, 1967. During this period, Swenson was seen either picketing or at the scene of picketing of Board’s offices or campuses.

December 20, 1966, the attorney who represented Board moved to dissolve the temporary injunction. With the motion was presented a written stipulation between Board and Union which purported to settle their dispute. The trial judge refused to grant Board’s motion. Instead, he directed Board’s attorney to prepare and file a petition for a rule on Union, Swenson and its other officers to show cause why they failed to comply with the temporary injunction. The petition was filed December 21; and a rule issued that day.

January 3,1967, the attorney for Board filed a petition alleging that because Board had requested dissolution of the temporary injunction and the trial judge had ordered a petition for a rule on Union and its officers, he was placed “in a position of potential conflict of interest” which required appointment by the court of special counsel to present evidence in support of the rule. The court took the petition under advisement until January 9.

In the meantime, the trial judge requested but the State’s Attorney of Cook County declined to proceed with the rule against Union and its officers, saying it was a civil matter. Then on January 9, 1967, the trial judge appointed John P. Coghlan, a member of the Illinois Bar, Amicus Curiae to investigate and report the facts and circumstances surrounding the conduct of Union and its officers “ [c] oncerning any violation of the injunction of this court entered on November 30, 1966.” The Amicus Curiae was directed to make a recommendation “ [i]n connection herewith, to dismiss the rule to show cause heretofore entered or for leave to file such amendments thereto as he believes necessary.”

On April 3, 1967 the Amicus Curiae filed a written report in which he recommended that an amended rule issue only against Union and Swenson “ordering and directing that they and each of them answer said amended rule to show cause within a date to be fixed by the court.” The rule issued on April 3, returnable May 22, 1967. On May 1, defendants answered the rule. Then, on May 12, defendants were allowed to amend their answer to include allegations that, effective January 1, 1967, the parties entered into a collective bargaining agreement to expire December 31, 1968. On May 22, 1967, the court heard the testimony of four witnesses called by the Amicus who, in addition, offered ten exhibits which were admitted. Defendants did not present any evidence. At the conclusion of the hearing, Union and Swenson were found guilty of contempt.

This finding, defendants contend, must be reversed because it was based on an unconstitutional and void temporary injunction. To support this contention defendants, with forcefulness and in great detail, raise questions concerning the sufficiency of the pleadings, Article II of the Illinois Constitution, the provisions of the First, Thirteenth and Fourteenth Amendments to the Constitution of the United States, and which require construction of the Illinois Anti-Injunction Act, Ill Rev Stats 1965, c 48, § 2a.

Despite the vigor with which they are ur^vd, these questions are not before us. The trial court had jurisdiction over the cause because the complaint alleged facts which presented a justiciable matter. Ill Rev Stats 1965, Const Art 6, § 9. In this day, the Illinois Anti-Injunction Act cannot be construed to take away the jurisdiction of a circuit court to decide whether a temporary injunction shall issue. Whether the trial court rightfully or erroneously granted the temporary injunction, and whether the injunction order was constitutionally permissible are .questions that cannot be litigated in a contempt proceeding. Cummings-Landau Co. v. Koplin, 386 Ill 368, 54 NE2d 462; City of Chicago v. King, 86 Ill App2d 340, 230 NE2d 41 and cases there cited. Therefore, since the trial court had jurisdiction of the subject matter and of defendants, the questions defendants can raise in this appeal are whether the order finding them guilty of contempt is supported by evidence and whether it conforms to those rules of law which govern such proceedings.

Before considering these questions we will resolve the point urged by defendants and by the Amici Curiae: that the trial court erred in denying Board’s motion to dissolve the temporary injunction.

Defendants support this point with the argument that the controversy between the parties “ [w] as clearly a labor dispute to which the injunction was directed . . that Board, the party that obtained the original injunction order, was fully satisfied and waived its right to seek punishment for contempt. The Amici support this point with the argument that when Board returned to the trial court to obtain dissolution of the injunction order, defendants’ contemptuous conduct had ceased. The Amici tell us that for the purpose of this argument we “[m]ay assume that: (1) Swenson and the Union knowingly violated the trial court’s temporary injunction; and (2) the picketing violated Illinois law.” These arguments are to the same effect; namely, that the contempt was moot at the time of its prosecution and that the contempt was strictly civil in nature. This is a concession with which we do not agree.

“Contempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis, and may partake of the characteristics of both.” People ex rel. Chicago Bar Ass’n v. Barasch, 21 Ill2d 407, 409, 173 NE2d 417. It is generally said that criminal contempts are acts disrespectful of a court or its process, those which tend to bring a court into disrepute or obstruct the administration of justice. People v. Redlich, 402 Ill 270, 277, 83 NE2d 736. The line of demarcation between criminal and civil contempt proceedings is in many instances indistinct and even imperceptible. People v. Gholson, 412 Ill 294, 298-299, 106 NE2d 333. However, a useful test by which a civil contempt can be distinguished from a criminal one is the punishment imposed. When punishment is purely punitive: imprisonment for a definite term, fine for a certain sum of money, the contempt is said to be criminal. When punishment is a remedial or coercive measure: commitment of a contumacious party until he complies with the mandate of the court, a fine until there is obedience to the court’s order, the contempt is said to be civil. People v. Redlich, supra; Walsh v. Superior Oil Co., 50 Ill App2d 40, 199 NE2d 428.

In the case before us no coercive order was issued for the benefit of plaintiff; no request for the contempt proceedings was made by Board. The trial judge, in the exercise of his discretion, directed issuance of the rule in order to determine if defendants had willfully violated a duly issued court order. Punishments the court imposed were fines in sums certain and imprisonment of Swenson for a definite period. Thus, by the test of the cases, the proceedings were to determine whether defendants were guilty of criminal contempt of court. Their guilt had to be established beyond a reasonable doubt. People v. Panczko, 20 Ill2d 237, 170 NE2d 130.

Arguments pressed on us by defendants and by the Amici insist that the rule to show cause should never have issued and that defendants’ conduct should have gone unpunished because Board’s broad discretion “[t]o say what is best for the successful management and conduct of the schools . . .”; and its decision to overlook defendants’ conduct (assumed arguendo to be contemptuous and illegal) should have been honored by the trial court. We think these arguments lack substance. Under no theory can a party that obtains an injunction bind the issuing court with condonation of contemptuous or illegal acts of those who violate the court’s order. To give effect to such a theory would usurp the highest function of our courts.

“The rule of law . . . reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This court cannot hold that the [defendants] were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the [defendants’] impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” Walker v. City of Birmingham, 388 US 307, 320-321, 18 L Ed2d 1210, 87 S Ct 1824 (1967).

We are aware of the contemporary social problems presented by questions concerning the right of public employees to unionize. See Comment, Collective Bargaining for Public Employees, etc., 68 Mich L Rev 260 (1969); Bruff, Unconstitutional Conditions Upon Public Employment, etc., 21 Hast LJ 129 (1969); Burton & Krider, The Role and Consequences of Strikes by Public Employees, 79 Yale LJ 418 (1970). However, as judges we must remind teachers and public employees that the interests of unionism do not justify standing in defiance of law. If we do not do this, and if contemptuous and illegal conduct by teachers were condoned, either by school boards or by courts meekly acceding to requests made under pressure, there would be erosion and ultimately destruction of the high place in public esteem that unions enjoy in our society. Therefore, we conclude that the trial judge did not err in issuing the rule to show cause and appointing the Amicus Curiae. People v. Goss, 10 Ill2d 533, 141 NE2d 385.

Defendants contend that they were prejudiced by the refusal of the trial court to grant their verified petition for change of venue. They argue that a change of venue was a right to which they were entitled; and that the petition they filed was timely. Necessarily, to pass on this contention we must look to what transpired in the case before the petition was filed.

Defendants appeared in the trial court on December 20, 1966. On that day the trial judge refused to grant plaintiff’s motion to dissolve the temporary injunction, a motion made by stipulation of the parties. The trial judge decided that a rule to show cause should issue against defendants. On his instructions, the attorney for Board presented the rule the next day, December 21. On January 3, 1967, the attorney for Board filed a petition for the appointment of special counsel. The court took this petition under advisement and requested the State’s Attorney of Cook County to proceed with the rule against defendants. When this proved unsuccessful, the trial judge on January 9 decided to appoint the Amicus Curiae. January 12, as defendants say in their Abstract of Record, “[a]s soon as defendants learned the identity of the prosecutor . . .” of the rule, they filed a petition for change of venue alleging they feared the trial judge was prejudiced against them. They alleged that “[s]aid prejudice first came to the knowledge of these Petitioners on December 20, 1966.” Thus, 23 days after the prejudice of the trial judge came to their attention, and after three important rulings in the cause: denial of the motion to dissolve the temporary injunction, issuance of the rule to show cause and appointment of the Amicus Curiae, defendants filed the petition for change of venue, a petition they renewed three months later on April 12,1967.

A petition for change of venue must be made at the earliest practicable moment. Commissioners of Drainage Dist. v. Goembel, 383 Ill 323, 50 NE2d 444; Hassell v. Backers, 341 Ill App 290, 93 NE2d 521. If filing of the petition is delayed until rulings on substantive issues have been made, it comes too late. People v. Lawrence, 29 Ill2d 426, 194 NE2d 337; Pilgrim Holiness Church v. First Pilgrim Holiness Church, 115 Ill App2d 448, 252 NE2d 1; Barnes v. Peoples Gas Light & Coke Co., 103 Ill App2d 425, 243 NE2d 855. For example, a petition comes too late when it is presented after denial of a motion to strike the complaint. Swanson v. Randall, 30 Ill2d 194, 195 NE2d 656. It would appear, therefore, that a petition for change of venue comes too late when it is presented after denial of a motion to dissolve a temporary injunction, a ruling certainly as substantive as denial of a motion to strike. That the court’s denial of the motion to dissolve is considered substantive by defendants, themselves, is demonstrated by the fact that a major point in their brief in this court is devoted to the contention that this ruling was reversible error. We conclude that defendants’ petition for change was untimely. It was filed long after the trial judge indicated his views concerning the necessity of proceedings to determine whether defendants were guilty of contempt of court. Under these circumstances, there is no merit to the contention that reversible error was committed when defendants’ petition and its later renewal were denied.

Nor is there merit to the contention that Swenson was arbitrarily singled out for punishment. Defendants point out that the amended rule, in contrast with the original one, was directed against Union and only one individual, Swenson. It is said that this produced an invidious result: singling out Swenson solely because of his position as president of Union, not because of what he did.

A court that grants an injunction is clothed with wide discretion in enforcing obedience to its order. Ash Co. v. Garment Workers’ Union, 290 Ill 301, 306, 125 NE 258. Generally, the power to punish for contempt is discretionary, one that should be exercised sparingly and only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. 17 CJS, Contempt, § 57. Within these limits, dealing with contempts is within sound judicial discretion, subject to the provisions of law; and a trial court’s determination with regard to alleged violations are final, unless there is a plain abuse of discretion. Janov v. Janov, 60 Ill App2d 11, 207 NE2d 691; People v. Kizer, 151 Ill App 6; Engleman v. Engleman, 145 Colo 299, 358 P2d 864 (1961); Fagan v. Timmons, 224 SC 286, 78 SE2d 628. From the contents of this record, we conclude that it was not abuse of discretion for the trial judge to order proceedings against only Swenson and Union even though other individuals may have engaged in the same conduct.

This brings us to defendants’ contention that the evidence did not prove them guilty of contempt.

Concerning the quality of the evidence, defendants contend that much of it was erroneously admitted. One part of this contention concerns the testimony of Robert Nolte, a Chicago Tribune reporter who was present at Union’s membership meeting of November 30. Nolte testified he heard Swenson say that the injunction was a “union busting device”; that they (Board’s teachers) would not go back to work on Thursday, Friday or Monday until a binding collective bargaining agreement was reached with the College Board; that the pickets would continue to march; that he and other members of Union were prepared to go to jail if necessary. Nolte was then shown a Chicago Tribune article of December 1. He said it contained information he telephoned to his newspaper concerning events at the meeting. Nolte said that the article truly and accurately contained the statements made by Swenson. The article- was offered in evidence; and defendants objected “on the grounds of relevancy.” The objection was overruled and the article admitted as petitioner’s exhibit 1.

In this court, defendants shift ground and argue that the ruling admitted prejudicial hearsay. This argument misconceives Nolte’s testimony and the meaning of hearsay evidence. The article was shown Nolte to refresh his recollection of what occurred at the meeting. It was not used to prove the truth of what was said in it. If anything, the article was only cumulative of Nolte’s uncontested testimony. Hester v. Goldsbury, 64 Ill App2d 66, 212 NE2d 316.

The other part of the same contention is that prejudicial error was committed when the trial judge admitted in evidence a letter of December 21, 1966, from Swenson to the members of Union. Defendants complain that in finding them guilty, the trial judge made reference to this letter. They argue that because the rule did not allege facts concerning the letter of December 21, the evidence was beyond the scope of the rule, resulting in denial of notice and opportunity to be heard. Thus, defendants argue, they were denied due process of law.

The letter of December 21 was one of six exhibits admitted in evidence by agreement. When the trial judge inquired if there was any objection to them, counsel for defendants said, “Your Honor, I am not sure we are straightened out. In part, I am objecting. What I am saying is that all these documents should be introduced in evidence.” The trial judge then said, “They are received in evidence there being no objection.” Now, defendants argue that admission of this letter deprived them of constitutional rights.

A proceeding to determine whether a party is in contempt may be commenced by a petition; but the alleged contemptuous acts need not be set out with the same detail as is required in a criminal information or indictment. Hake v. The People, 230 Ill 174, 82 NE 561. With regard to particularity of allegations in a petition for contempt, the rules of civil practice control. Daniel Boone Woolen Mills v. Laedeke, 238 Ill App 92; American Zinc Co. v. Vecera, 338 Ill App 523, 88 NE2d 116. The letter of December 21 was not admitted to prove what defendants did on that day; it was an admission by Swenson, binding on Union. The letter disclosed what defendants did during the period under inquiry: November 30 to December 5, 1966. The significant part of the letter was “[w]e are entitled to the same rights enjoyed by private employees; and that we must strike if necessary to guarantee the protection of these rights. We will not be cowed now or in the future by an arrogant Board that refuses to bargain in good faith, or by the threat of an injunction.” Thus, this letter tended to prove that after issuance of the injunction, defendants were of a mind to violate it. Therefore, neither admission in evidence of the newspaper article nor of the letter dated December 21,1966, was error.

Concerning the quantity of the evidence, defendants, proceeding on the theory that the contempt here, if anything, was a civil one, contend that it did not prove them guilty. They argue that the crucial evidence was Robert Nolte’s testimony of Swenson’s speech of November 30 and the letter of December 21. The former, they say, was not sufficient because Nolte could not recall Swenson’s speech and had to rely on the news article; the latter, they insist, was exercise of free speech by Swenson.

This argument does not take into account the testimony of John William Gianopulos, Assistant to the Chancellor of the Chicago City College who testified that on December 1, 1966, outside his office at 64 East Lake, Chicago, he saw pickets, members of Union. One of the persons picketing was the defendant Swenson, with a placard in his hand. Nor does it include the testimony of Thomas O’Malley, a Chicago police officer who swore that on December 1, 1966, he went to the offices of Board and saw approximately 40 adults, members of Union, picketing with placards. One of those picketing was Swenson who explained to O’Malley that members of his Local were negotiating a contract with Board. Swenson according to O’Malley said that other schools of Board were going to be picketed.

Of particular significance, we think, are the six exhibits. These were letters sent by Swenson stating Union’s position and its determination to strike against Board. A letter of December 5, 1966, told its members of the significant Union victory won as a result of the strike. It said: "This is a victory of which we can all be proud. We won from Board everything we struck for. In addition, the Board has offered us as initial evidence of its future good faith some initial concrete counter-proposals to our proposed contract.” When read together, these exhibits, all admissions by defendants, tended to show that after the temporary injunction issued, defendants engaged in the strike that was enjoined.

Affidavits in support of the rule disclosed that as a result of defendants’ conduct, between 66% and 85% of Board’s teaching staff did not report for work on December 1 and 2,1966. Classes were cancelled; students were denied education. The recited evidence, none contradicted by defendants, proved beyond a reasonable doubt that defendants were guilty of contempt of court. In re Block, 50 NJ 494, 236 A2d 589 (1967); City of New York v. DeLury, 23 NY2d 175, 243 NE2d 128 (1968); Board of Education of City of New York v. Shanker, 54 Misc2d 941, 283 NYS2d 548 (1967). The fines and sentence of imprisonment which the trial court imposed manifest exercise of reasonable discretion. The judgment is affirmed.

Affirmed.

DBUCKEB and ENGLISH, JJ., concur.