author: ALLOY, J.

text:
    Glen View Club, an Illinois Not-for-Profit Corporation, Plaintiff-Appellee, v. Ferdinand J. Becker and Harris Trust & Savings Bank, as Trustee Under Trust No. 32138, Defendants-Appellants.
    Gen. No. 53,384.
    First District.
    July 11, 1969.
    Rehearing denied and opinion modified October 6, 1969.

      Bernard Kleinman and Frank J. Belline, of Chicago, for appellants.
    Spray, Price, Hough & Cushman, of Chicago (Robert S. Cushman and Minard E. Hulse, Jr., of counsel), for appellee.
   ALLOY, J.

Plaintiff Glen View Club filed an action for a mandatory injunction to compel defendant Ferdinand J. Becker to remove a retaining wall and patio from an area which encroached upon the plaintiff’s alleged easement for a private road. The trial court granted the motion for summary judgment and entered a decree in accordance with the prayer of the complaint. Property owner has appealed to this Court.

The record discloses that Glen View Club is a golf and country club which acquired title to certain club grounds on April 19, 1897. In 1902, Andrew Blaes was the owner and in possession of land just north of the golf club. By a deed dated August 9, 1902, and recorded April 26, 1915, Blaes conveyed what the club now contends was an easement for a road from the north line of the club property to the intersection of Coronet Road and Woodland Drive, both streets being located in the Village of Glen View. The instrument referred to recited in part as follows:

“This Agreement Made this Ninth day of August, A. D. 1902, between Andrew Blaes of Niles Township, Cook County, Illinois, party of the first part, and the Glen View Club, a private corporation organized and existing under the laws of the State of Illinois, party of the second part, Witnesseth:
“First. That for and in consideration of the sum of One Dollar ($1.) in hand paid by second party to first party, the receipt of which is hereby acknowledged, and in the further consideration of the mutual agreements and covenants hereinafter mentioned, the party of the first part gives, grants and leases in perpetuity for the purposes of a private road, street or thoroughfare to the party of the second part, the following described tract of land:
“The East Thirty-three (33) Feet of the West Eleven (11) Acres of the South-west Quarter of the South-east Quarter of Section Thirty-six (36) Township Forty-two (42) North of Range Twelve (12) East of the Third Principal Meridian.
“Also, a strip of land Sixty-six (66) Feet in width beginning at the South-west Corner of the tract of land last above described running thence South and about One Thousand (1000) Feet more or less to a fence dividing the land now owned by said first party, in the North-west Fractional Quarter of Section Eight (8) Township Forty-one (41) North of Range Twelve (12) East of the Third Principal Meridian, from the land now owned by said second party; thence East about Five Hundred (500) Feet; thence North Sixty-six (66) Feet; thence West about Four Hundred and Sixty-six (466) Feet; thence North a distance of about Nine Hundred and Thirty-three (933) Feet to a point sixty-six (66) Feet from the place of beginning of said last or second described tract, a plat of which land is hereto attached and made a part hereof for further certainty.
“Second. It is mutually covenanted and agreed by and between the parties hereto that the party of the first part shall have the privilege so long as said strip of land shall be used or occupied by said second party as a private road, street or thoroughfare, for free and uninterrupted access to the Club grounds of first party, said grounds of said second party being otherwise known and described as The Southwest Fractional Quarter of Section Eight (8) Township Forty-one (41) North of Range Twelve (12) East of the Third Principal Meridian in said Cook County, Illinois, for himself and his tenants occupying cottages adjacent to the grounds, house and property of the party of the second part, provided that such cottages shall be, in order to enjoy said privilege, members in good standing in said Club of said second party.”

It is noted that the instrument refers to land in Range Twelve (12) when the only land the club owned and the only abutting land that Blaes owned at the time was in Range Thirteen (13), according to the pleadings.

By deed dated March 18, 1920, Andrew Blaes, the grantor of the road to the club in 1902, deeded the property over which the alleged easement ran to Genevra L. Couch and such deed contained the following language:

“The East Thirty-three (33) feet of said premises is a part of a private road over which the grantor, his heirs and assigns and the Glen View Club have and are to continue to have a right of way.”

The description in this deed to Couch referred to the correct Range 13.

In 1942, the Cook County Forest Preserve District condemned the east thirty-three feet of the roadway and in May, 1942, a condemnation judgment was entered and the plaintiff club was awarded damages.

In 1945 there was a proceeding to register the land north of the club under the Torrens system and the decree which registered the land provided:

“The East 33 feet of said premises as shown in Warranty Deed Doc. No. 6764487, dated March 18, 1920, and recorded March 18, 1920, from Andrew Blaes (also known as Andreas Blaes) to Geneva L. Couch, is part of a private road over which the grantor, his heirs and assigns and the Glen View Club have and are to continue to have a right of way.”

One of the owners in the chain of title to the property north of the club over which the alleged easement described ran, filed a subdivision plat in 1964, which showed the east 33 feet of such property marked as a private road.

In the early part of 1966, Harris Trust & Savings Bank, as Trustee, for a trust under which Ferdinand J. Becker was beneficiary, acquired title to the property north of the club. The Torrens Certificate No. 984789, as to such property, contained an endorsement showing the east 33 feet of the premises as being part of a private road which could be used by the grantor, his heirs and assigns, and the Glen View Club.

Defendant Becker constructed a home on the property north of the club, and began to grade and seed as part of his yard, a portion of the property over which the club claimed a roadway. The club wrote Becker two letters requesting that he leave the road open. Becker then installed a retaining wall and patio on a portion of the 33-foot roadway. The club thereafter instituted the present action requesting a mandatory injunction requiring that Becker remove the wall and patio from the roadway and restore the surface, and also that he be permanently enjoined from interfering with such roadway.

In the course of the action, the plaintiff club moved for summary judgment and filed with the court certain affidavits setting forth all of the various instruments referred to herein and the activity of defendant in building the wall and patio on the portion of the tract described as being subject to the easement. The complaint of the club also alleged that the road was used for emergency purposes in case of flooding of a road normally used for access to the club. In defendant’s answer, the ownership of the property was admitted as well as construction of the wall and patio, but defendant denied any knowledge of an easement or instruments creating such easement.

The trial court in granting a summary judgment in favor of plaintiff club stated:

“The only question before the Court on motion for summary judgment is whether or not there is a genuine issue of a material fact. The interpretations of the agreement do not involve in this case any material fact or questions of law and the Court feels that it is compelled to determine the law and my interpretation of the law is that this is an easement, private road. It is there, and the defendant, by even the Exhibits that are attached to the defendant’s counteraffidavit clearly show in the plat, the latest plat which is in the Torrens plat, clearly show that it is a private road and I have no alternative but to allow a motion for judgment.
“I made a determination that this is a private road and the agreement which Blaes gave says it is an easement. It might be more than an easement but at least it is an easement to the plaintiff here and if they are insisting on the rights, which they are apparently doing, I have no alternative but to follow what I think is the law and that is what I am doing.”

On appeal in this Court, defendant asserts that granting of summary judgment was erroneous since there were actually triable fact issues and that all inferences should have been resolved in favor of respondent. The issue before the court is whether the granting of the motion for summary judgment was proper. The pleadings and affidavits in the case should show, when construed most favorably against the moving party, that there is no genuine issue as to any material fact and that the moving party is entitled to the decree or order as a matter of law. This resolves itself to a determination as to whether the various instruments referred to did in fact clearly establish an easement or similar right in favor of plaintiff club. As stated in the Civil Practice Act (1967 Ill Rev Stats, c 110, § 57):

“The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.”

It is not the office of a trial court to weigh conflicting issues of fact on a motion for summary judgment but rather to determine if there is an issue of fact to be decided by the jury or appropriate trier of facts (Brockie v. State Farm Mut. Automobile Ins. Co., 39 Ill App2d 159, 162-3, 187 NE2d 538). In the Brockie case, cited by appellants, a question arose as to whether a criminal action had been instituted by State Farm and one Stolper against Lucille Brockie. There was a sworn charge that such action had been instituted but this was expressly denied under oath. This question was material to the case and the court properly held that there was a triable issue of fact and that summary judgment could not be granted. In Patterson v. Stern, 88 Ill App2d 399, 232 NE2d 7, also cited by appellants, the court reviews the rules in stating (at pages 403-4):

“On motion for summary judgment all inferences are to be resolved in favor of the respondent and summary judgment is not proper unless, viewing all evidence most favorable to respondent, there is no genuine issue of material fact. Di Battista v. Centennial Ins. Co., 52 Ill App2d 84, 201 NE2d 466. And the right to judgment must be clear beyond question, Solone v. Reck, 32 Ill App2d 308, 177 NE2d 879; and the whole record must be considered. Sampson Co. v. Handel Bros., Inc., 3 Ill App2d 92, 120 NE2d 571. A motion for summary judgment should be denied if upon examination of the record it can be fairly said that a triable issue of fact exists. Des Plaines Motor Sales Inc. v. Whetzal, 58 Ill App2d 143, 206 NE2d 806.”

In the Patterson case referred to, the plaintiff fell through a guardrail of a building and the question was whether defendants were responsible for such guardrail. Affidavits and pictures were submitted but the court concluded that the photographs should be properly interpreted and also that there were other matters regarding the question of repairs which were not clearly shown so that summary judgment would have been improper. In other cases cited by defendant in this Court, it is clear that there was an issue of fact which should have been determined by a jury (Zemel v. Chateau Royale Corp., 35 Ill App2d 313, 182 NE2d 383; J. J. Brown Co., Inc. v. J. L. Simmons Co., 2 Ill App2d 132, 118 NE2d 781).

In Brooks v. Dean Berenz Asphalt Co., Inc., 83 Ill App2d 258, 227 NE2d 100 (likewise cited by appellants), summary judgment was granted. Defendant had been injured when he drove into an excavation which was unmarked. Defendant was a paving contractor and the question was whether defendant owed a duty to place warnings in the area of the excavation. Defendant was not even working in the area of the excavation and the excavation was being done by the State of Illinois, Division of Highways. From the motion for summary judgment and affidavits it was clear that none of defendant’s workmen were working within one and a half miles of the excavation and, therefore, the court allowed the motion for summary judgment. The Appellate Court affirmed such conclusion and stated (at pages 261-2):

“Summary judgment is a drastic method of disposing of litigation and the right of a party to invoke the remedy must be free from doubt. Inferences favorable to the party opposing the motion, even if arising out of undisputed facts, will prevent judgment. We are unable to find any facts or inferences in this record which would allow the plaintiff to submit the decisive issue of the defendant’s negligence to a jury. Giampa v. Sunbeam Corp., 68 Ill App2d 425, 216 NE2d 233, 236 (1st Dist 1966); Campione v. Henry C. Lytton & Co., 57 Ill App2d 147, 206 NE2d 780, 783-784 (1st Dist 1965). Neither the basic facts nor the inferences which arise from those facts are in dispute. The defendant had not assumed any obligation, by its contract or by any other action. The law does not impose a duty upon a contractor in charge of paving a street to erect warnings or barricades at an excavation created by someone else outside his own zone of work, unless a special relationship created by contract existed or a specific act of the contractor occurred concerning the excavation. The existence of a duty under particular facts is a question of law.”

In the case before us, the property owner merely denied certain portions of the complaint and demanded strict proof thereof. The club filed various affidavits and attached thereto copies of the various instruments such as the deeds and plats referred to in this opinion. Defendant filed no counteraffidavits. The facts as set forth by the plaintiff were, therefore, admitted (St. Louis Fire & Marine Ins. Co. v. Garnier, 24 Ill App2d 408, 164 NE2d 625). In the St. Louis Fire & Marine Co. case the court stated that where plaintiff’s affidavits are sufficient, entry of summary judgment is not prevented by reason of the fact that defendant has filed pleadings which on their face set up a good defense.

The only question which is before us, therefore, is whether the various instruments, which are shown under the facts and upon which the trial court properly rely as being valid, clearly show an easement or similar right being created in favor of the club. The agreement between Blaes and Glen View Club made in 1902 provided that Blaes “grants and leases in perpetuity for the purpose of a private road, street or thoroughfare to the party of the second part (the Glen View Club).” The agreement also provided that Blaes could also use the road so long as the club continued to use it as a road. The wording of the 1902 agreement created a “lease in perpetuity” which would appear to be analogous to the creation of an “easement.” As stated by the trial court, the wording at the very least created an easement. The only question which was raised in connection with the 1902 agreement arose from the fact that it referred to the land as being in Range 12. In the later deed referring to the easement, this was properly described as Range 13, and in all subsequent plats and the Torrens decree, the proper reference was to Range 13. The purpose of a description in the deed is to identify the particular subject matter of the grant, and, if it is possible to ascertain from the description, aided by extrinsic evidence, what property is intended, the conveyance would not be declared void (Brunotte v. De Witt, 360 Ill 518, 528, 196 NE 489).

In the 1920 deed from Blaes to Genevra Couch, it is expressly stated that the east 33 feet of the property conveyed was part of a private road which Blaes and the Glen View Club “have and are to continue to have” a right of way. This deed to Couch clearly reserved an easement in the grantor Blaes, and, also, in the Glen View Club even though the word “easement” was not expressly used (Chicago Title & Trust Co. v. Wabash-Randolph Corp., 384 Ill 78, 84, 51 NE2d 132). It is thus apparent that the deed from Blaes to Genevra Couch was sufficient in itself to establish or confirm the creation of the easement in favor of the club without any reference to the 1902 agreement.

We have the further circumstance that the plaintiff club was paid damages for a portion of the easement in a condemnation action by the Forest Preserve District and that a plat was filed by the owner of a neighboring tract which showed the existence of the easement. The Torrens decree was also a court determination that such easement existed and the Torrens certificate showing title in the Harris Trust and Savings Bank, as Trustee for defendant Becker, recited that the east 33 feet of such property was part of a private road available for use by the golf club and Becker.

When we consider all of these documents which were expressly set forth in the plaintiff’s complaint and supporting affidavits and were not refuted in any manner by defendant, it is clear that there was no question of fact which was presented as to the existence of the easement. The case before us is analogous to Brooks v. Dean Berenz Asphalt Co., Inc., 83 Ill App2d 258, 227 NE2d 100, where the court examined the pleadings and affidavits and concluded from such facts presented that there was no liability as a matter of law. It is obvious from the instruments and affidavits in the instant case that the easement had been created and was still in existence, and the trial court properly reached this conclusion in granting summary judgment in favor of plaintiff. No reformation of the 1902 deed from Blaes was required as a preliminary step to the granting of such relief.

We note, also, that the property owner had notice of the existence of the easement at the time he began his encroachment on the easement area. Accordingly, the trial court was correct in decreeing that he remove such encroachments. The record shows that letters were written to the property owner at the time he began his encroachments informing him of the easement. Removal of the encroachment by defendant was, therefore, properly directed (Ariola v. Nigro, 16 Ill2d 46, 156 NE2d 536; The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc., 4 Ill App2d 454, 124 NE2d 649).

Since the action of the trial court was proper under the facts in the record, the decree entered in the Circuit Court of Cook County will be affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lee Batie, Jr., Defendant-Appellant.
    Gen. No. 52,912. (Abstract of Decision.)
    First District, Second Division.
    July 15, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James J. Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE McCORMICK. Not to be published in full.


author: MR. PRESIDING JUSTICE LYONS McCORMICK, J.,

text:
    Village of Hodgkins, a Municipal Corporation, Plaintiff-Appellant, v. George Margarites, Defendant-Appellee.
    Gen. No. 52,992.
    First District, Second Division.
    July 15, 1969.

      Louis F. Cainkar, of Chicago, for appellant.
    Joseph D. Shelly, Jr., of Hodgkins, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

George Margarites was found not guilty, following a bench trial, of a charge of violation of Village of Hodgkins Ordinance No. 65-24, section 8-2, operating a motor vehicle without a village license sticker. The Village appeals, alleging the trial court erred in holding that the address from which a vehicle is registered, as shown by the vehicle registration identification card issued by the Secretary of State, is determinative of residence for the purpose of a municipal vehicle license tax. The ordinance involved provides:

8-2: LICENSE REQUIRED: It shall be unlawful for any person residing in the Village of Hodgkins, or for any firm or corporation having its principal office or place of business in the Village of Hodgkins, to use, or to cause or permit any of his, her, their, or its agents or employees to use any motor vehicle in the transportation of persons or property or the conveyance of loads upon the streets, avenues or alleys of this Village unless such motor vehicle is licensed as hereinafter provided.

At the trial the parties entered into a stipulation that if the truck driven by Margarites and owned by North Shore and Central Illinois Freight Company was not required to have a Hodgkins vehicle sticker the defendant should be found not guilty. Hence, the trial was devoted entirely to the issue of whether the vehicle driven by defendant and owned by North Shore was required to have a Hodgkins vehicle sticker.

North Shore is a corporation chartered by the State of Illinois. It maintains offices and terminals in eight locations within the State, the largest terminal and general offices being located in the Village of Hodgkins. The vehicle driven by defendant was registered with the Secretary of State from Urbana, Illinois, within which is located another of North Shore’s terminals. That City does not levy a municipal vehicle tax.

The evidence presented at trial demonstrated that on February 20, 1967, defendant was issued a traffic citation in the form of a complaint for violation of the Village ordinance set out above. The arresting officer testified that the vehicle bore no Village sticker and that he had observed it entering and leaving North Shore’s lot on numerous occasions since January 1, 1967, and had also observed it parked on the premises overnight. On February 20, 1967, North Shore filed with the Secretary of State amendments to its articles of incorporation and notice of change of registered office and registered agent, indicating a change of both from the Village of Hodgkins to Urbana, Illinois. Defendant’s counsel, who is also secretary-treasurer of North Shore, stated to the court that the general offices of the corporation were located in Hodgkins and admitted that the corporation was a resident of the Village.

Appellant-Village contends that the only question relevant to a determination of whether a vehicle is subject to a municipal license fee is whether the owner is a resident of the municipality which seeks to collect the fee.

Defendant-appellee agrees that the “wheel tax,” as municipal vehicle license fees are commonly characterized, is based on residence and that North Shore is a resident of Hodgkins under the general rule that a corporation is deemed a resident wherever it exercises its franchise. He argues, however, that the State Enabling Statute under which the Hodgkins Ordinance was adopted contemplates that the owner of a vehicle shall be required to purchase a municipal license in one municipality only, and that therefore a corporation which is a resident of more than one municipality can be required to purchase a municipal vehicle license only in the place of its principal residence, principal residence being defined as the location of its registered office.

Ill Rev Stats, c 95%, § 32a, the Enabling Act under which the Hodgkins Ordinance was adopted provides in pertinent part:

No owner of a motor vehicle or motor bicycle who shall have obtained a certificate from the Secretary of State and paid the registration fee as hereinbefore provided, shall be required by any city, village, town or other municipal corporation within the State other than a city, village, town or other municipal corporation in which the owner resides to pay any tax or license fee for the use of such motor vehicle or motor bicycle. The city, village or incorporated town in which such owner resides may impose a tax or license fee as is provided in section 8-11-4 of the Illinois Municipal Code, as heretofore and hereafter amended.

Section 8-11-4 of the Municipal Code sets forth the maximum limits at which a municipality may set its vehicle license fee.

We cannot agree with appellee’s construction of the statute. The prohibitions of section 32a above are, in our opinion, designed to protect owners of vehicles from fees which might otherwise be levied against them for the privilege of using the streets and highways of municipal corporations other than those in which they reside. It is true that for many purposes a person, whether natural or corporate, has only one residence. But from that fact alone we are not prepared to hold, as urged by appellee, that the term “residence” as applied to corporations within the context of the operation of section 32a should be interpreted to mean principal residence, i. e., location of the registered office.

The nature and purpose of a municipal vehicle license fee provide additional reason to reject appellee’s contention. A municipal vehicle license is not really a license at all, since no inspection or testing is involved in its procurement. It is, in reality, a revenue measure designed to allow the costs of maintenance of the streets and highways of a municipality to be borne by those who derive the greatest benefit therefrom, the residents of the municipality. To adopt appellee’s construction of the statute would be to allow some to avoid their fair share of these expenses merely because they have acquired an additional residence in another locale and have chosen to designate it as their principal residence.

We hold that section 32a prohibits municipalities from levying a vehicle tax on nonresidents only, and the fact that a corporation may have an additional residence does not, under the statute, relieve such a vehicle owner from the operation of a vehicle license ordinance duly adopted by a municipality within which it resides. We further hold that the trial court erred in its decision that the place from which a vehicle is registered conclusively determines residence for the purpose of a municipal vehicle tax. City of Rockford v. Maxwell, 92 Ill App2d 336, 234 NE2d 563 (1968).

We do not say that a corporation having residence in different municipalities can be required to purchase a municipal vehicle tag (wheel tax) for each vehicle in each municipality of residence. In the instant case the corporation employing the defendant is a resident of the Village of Hodgkins. This corporation is not required to purchase a vehicle wheel tax license for this vehicle in Urbana. In fact, Urbana does not require the payment of a vehicle tax. Therefore, the question of “double taxation” for the same vehicle does not arise.

Illinois Water Co. v. Champaign County, 367 Ill 641, 12 NE2d 661 (1937) cited as authority by the defendant cannot be helpful in the instant case. There is a vast difference between the capital stock of a corporation and numerous vehicles owned and operated by a corporation and particularly so when the vehicles are domiciled in different places in the State. The language quoted from Ex parte Schollenberger, 96 US 369 (1877) supports the position of the Village.

The judgment is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

BURKE, J., concurs.

McCORMICK, J.,

specially concurring:

While I concur in the result reached in the majority opinion I cannot fully subscribe to all of its holdings. The statement is made in the opinion:

“We hold that Section 32a prohibits municipalities from levying a vehicle tax on non-residents only, and the fact that a corporation may have an additional residence does not, under the statute, relieve such a vehicle owner from the operation of a vehicle license ordinance duly adopted by a municipality within which it resides.”

The case would seem to be one of first impression in this State. The question to be decided is that the “residence” of a corporation for the purpose of imposing a wheel tax. The majority has concluded that a corporation could have its residence in many different cities, towns, villages or other municipal corporations and that it could be required to purchase a municipal vehicle license in each. A proper interpretation of the statute does not justify such a finding.

Illinois Water Co. v. Champaign County, 367 Ill 641, 12 NE2d 661 (1937), was a case involving the residence of a corporation for the purpose of a capital stock tax. While not on all fours with the instant case, many of the statements therein are applicable. The legislature had provided that the capital stock of a corporation should be at the location of its principal office, and the court observed that a corporation doing business in a number of places is under no duty to the State or to any municipality to locate its principal place of business where taxes are the highest. The court said at page 644:

“If the corporation chooses to maintain its principal office at that location because the rate of taxation is less there than in other places where it does business, that choice does not indicate any fraudulent purpose or affect the validity of the location of the principal office. [Citing cases.] ”

In Friend & Co. v. Goldsmith & Seidel Co., 307 Ill 45, 138 NE 185 (1923), the question involved was the domicile or residence of a corporation, and the court held that under the authority of Ex parte Schollenberger, 96 US 369, although a corporation has its residence and citizenship in the state where it is created, it may transact business anywhere unless prohibited by its charter or excluded by local laws. The court said at page 50: .

“In fact, however, a corporation has no home, domicile, residence or citizenship in the sense in which those terms are applied to natural persons. Whenever those words are applied to a corporation it is in a figurative sense, and they are used with a vagueness of meaning which arises from the fact that they are metaphorical.”

In People v. Deep Rock Oil Corp., 343 Ill 388, 175 NE 572, one of the problems considered was whether or not the State had imposed a double tax. The Supreme Court noted at page 394 that “double taxation will never be presumed, and before that effect will be given a statute it must unmistakably appear that the legislature so intended it. New York Central Railroad Co. v. Stevenson, 277 Ill 474; Tennessee v. Whetworth, 117 US 129; Cooley on Taxation, 165.”

As in the case before us, the tax under review in Deep Rock was a privilege or use tax. Double taxation ordinarily refers to a situation wherein one governmental unit imposes the same tax for the same purpose on one individual or corporation twice in the same taxing year. Technically, a pure double taxation matter is not presented by this appeal since the tax which the plaintiff seeks to levy upon the defendant is the first such tax it imposed upon the defendant during the taxing year in question.

However, to construe the statute as the majority has would permit many different governmental units to impose a use tax on the same corporation — a situation which, while not identical, is closely related to double taxation. Although it could be argued that such various taxes would be for different uses, namely, uses of different roads, statutory language conferring the power of taxation to local municipalities must be strictly construed (People v. Mills Novelty Co., 357 Ill 285, 192 NE 236), and language tending to protect the taxpayer should be liberally construed. People v. New York Cent. R. Co., 356 Ill 67, 190 NE 94.

If there is any doubt regarding the extent of the power conferred upon the municipality the doubt should be resolved against the municipality. Condon v. Village of Forest Park, 278 Ill 218, 115 NE 825; Arnold v. City of Chicago, 387 Ill 532, 56 NE2d 795.

The enabling act only justifies a municipality’s taxing a corporation which has its principal office or place of business in such municipality. The common construction of the term “residence” when referring to a corporation is the corporation’s principal place of business, and while a corporation may have many residences for some purposes, such as for venue, it does not follow that such rule should be applicable when dealing with a statute enabling local authorities to impose taxes. Unless the legislature clearly indicates the opposite, the scope of the delegated taxing power should be narrowly construed, and although such narrow construction as applied to this case would permit the plaintiff to impose the contested tax, it would not permit other municipalities to do the same.

It appears that on the date in question the principal place of business of the corporation was the Village of Hodgkins; and since the Village, by its own ordinance, had provided that the tax could be imposed on corporations having their principal office or place of business in the Village of Hodgkins, the imposition of the tax on the defendant was proper.

The judgment of the trial court was properly reversed.


author: MR. JUSTICE McNAMARA

text:
    Charles Takecare and Cleophus Metcalfe, Plaintiffs-Appellants, v. Julius Loeser and Alfred Loeser, Defendants-Appellees.
    Gen. No. 53,195.
    First District, Second Division.
    July 15, 1969.

      Willard J. Stepek, for Elliott Edelman and Lane, Falasz & Pollman, of Chicago, for appellants.
    Morton H. Meyer and Gerrard and Gerrard, of Chicago (Morton H. Meyer, Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The plaintiffs, Charles Takecare and Cleophus Metcalfe, brought this action against defendants, Julius Loeser and Alfred Loeser, to recover damages arising out of an automobile accident in which Takecare was driver of one automobile and Metcalfe was his passenger. Alfred Loeser died prior to trial, and the suit proceeded against the surviving defendant, the driver of the other automobile. All parties stipulated to a trial by eleven jurors. After trial, the jury returned a verdict in favor of Cleophus Metcalfe against the defendant, and awarded damages in the sum of $12,000. The verdict further found the issues in favor of the defendant and against the plaintiff Charles Takecare.

The cause was submitted to the jury in the early evening on May 20. By agreement the parties waived the polling of the jury and the verdict was received by the judge at 11:00 p. m. The judge then discharged the jury. On the following morning, over objection of plaintiff, the trial court entered a judgment order which stated that after counsel and several of the jurors had left the courtroom, the court was informed by the foreman and five other jurors that it was their intention to return a verdict finding in favor of defendant and against both plaintiffs. The order further stated that the court was further informed that the jury also intended to find in favor of plaintiff Metcalfe against plaintiff Takecare. The court thereupon entered judgment in favor of the defendant against both plaintiffs, reciting that this was in accordance with the real intention of the jury.

Plaintiff Metcalfe alone appeals, contending that the judgment order entered contrary to the verdict was error and requesting that this court reverse the order and enter judgment based upon the jury’s verdict.

Before considering that issue, we first must resolve defendant’s contention that plaintiff cannot raise this issue on appeal because he failed to file a post-trial motion in the trial court. Defendant relies on section 68(1) (2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 68.1(2)) which states in part: “Relief desired after trial in jury cases . . . must be sought in a single post-trial motion.” Under this section, it is generally true that in jury trials relief not sought in a post-trial motion cannot be urged as error on review. City Nat. Bank & Trust Co. of Rockford v. Almond, 42 Ill App2d 314, 192 NE2d 297 (1963). However in Keen v. Davis, 38 Ill2d 280, 230 NE2d 859 (1967), the court held that a post-trial motion was not necessary where the trial court granted a directed verdict, concluding at page 282:

“We see nothing in the statute to indicate a legislative intent that a post-trial motion be filed after a directed verdict. In fact, the contrary is indicated since no such motion is required in non-jury cases (Section 68.3) or cases in which a jury has failed to reach a verdict (Section 68.1 (5))

See also Larson v. Harris, 77 Ill App2d 430, 222 NE2d 566 (1966), affirmed 38 Ill2d 436, 231 NE2d 421 (1967).

The reasoning in the above cases should apply even more cogently in the instant situation. On the morning after verdict, over objection of plaintiff, the trial court entered judgment contrary to the verdict which had been rendered. We conclude that it would be illogical to require the plaintiff to appear again before the same judge prior to seeking a review in this court. We therefore find that the plaintiff was not required to file a post-trial motion in order to preserve his appeal.

We next proceed to a consideration of plaintiff’s contention that the action of the trial judge in entering judgment contrary to the jury verdict was erroneous. The defendant concedes that the verdict was proper on its face, but argues that the trial court, having determined the true intention of the jury, was compelled to enter judgment on that intention.

Jury verdicts generally cannot be impeached even by affidavit. Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312, 156 NE2d 361 (1959); Palmer v. Poynter, 24 Ill App2d 68, 163 NE2d 851 (1960); Ault v. Washburn, 72 Ill App2d 161, 218 NE2d 108 (1966). In the instant case, there is not even an affidavit to support the action of the trial court.

In Loucks v. Pierce, 341 Ill App 253, 93 NE2d 372 (1950), the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for a new trial, based upon an affidavit of a juror that there were some irregularities in the jury deliberations. The trial court granted the motion for a new trial, apparently on the basis of private investigations made by the judge. The court stated at page 256:

“If the trial court based the allowance of the new trial upon his own extrajudicial investigation, it must be held error. The rights of litigants in a court of record cannot be left to the mercy of private remarks in the judge’s ear.”

In People v. Rivers, 410 Ill 410, 102 NE2d 303 (1951), a criminal case, the court reversed a conviction because of an extrajudicial investigation by the judge, and stated at page 419:

“However innocently any private investigation may have been made, for whatever purpose, and regardless of its results, the defendants’ constitutional right to have everything considered against them produced in open court has been violated.”

In the instant case, the judgment order itself reveals that the court entered judgment for defendant contrary to the verdict because of a conversation he had with jurors after the verdict had been rendered and after the jury had been discharged. This conversation resulting as it did in the entry of the judgment amounted to a private extrajudicial investigation and clearly was erroneous.

Cases cited by defendant, Law v. Sanitary Dist. of Chicago, 197 Ill 523, 64 NE 536 (1902), Scheck v. Evanston Cab Co., 93 Ill App2d 220, 236 NE2d 258 (1968), are not in point. The Law case involved a verdict which required a correction of a legal description. The Scheck case involved a verdict in which the jurors had failed to sign the verdict which they had returned. In the case at bar, the verdict was complete and proper on its face. The court erred in entering a judgment contrary to the verdict, and now must enter judgment in favor of the plaintiff in accordance with the verdict.

One question remains; whether after remandment of the cause with directions to the trial court to enter judgment on the verdict, defendant may thereafter, for the first time, file a post-trial motion in the trial court.

This issue has been decided recently in Scoggins v. Village of Hartford, 104 Ill App2d 403, 244 NE2d 433 (1969). In that case, the jury returned a verdict for plaintiff, but the trial court, after entering judgment on the verdict, ruled that a release barred recovery and immediately thereafter vacated that judgment in favor of defendant. On appeal, the appellate court reversed the judgment and remanded the cause with instructions to reinstate the judgment on the verdict. Scoggins v. Village of Hartford, 86 Ill App2d 233, 229 NE2d 550 (1967). After remandment, defendant for the first time filed a post-trial motion. The trial judge ruled that the decision of the appellate court reinstating judgment precluded him from further consideration of any of the remaining matters in issue. He therefore summarily denied the post-trial motion and entered final judgment. In holding that this was erroneous, the appellate court stated at page 405:

“Section 68.1(3) of the Civil Practice Act (c 110, Ill Rev Stats, 1967) provides that post-trial motions must be filed within 30 days after the entry of judgment. The judgment previously entered on the verdict was vacated immediately, and there was no reason for defendant to file a post-trial motion at that time. In filing its motion within 30 days of the date on which the mandate was filed in the circuit court, defendant complied with the statute.”

In following the holding of the Scoggins case, we find that defendant has not been estopped from filing a proper post-trial motion, if desired, within 30 days after the mandate is filed in the circuit court.

Therefore the judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with the verdict in favor of the plaintiff Cleophus Metcalfe, and against the defendant in the sum of $12,000. The cause is also remanded with directions, to allow the defendant to present an appropriate post-trial motion in the circuit court within 30 days after the filing of this mandate, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.

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


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Ellis, Defendant-Appellant.
    Gen. No. 52,352.
    First District, Third Division.
    July 18, 1969.

      Spray, Price, Hough & Cushman, of Chicago (Wesley S. Walton and James A. Broderick, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James J. Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Arthur Ellis and Ronald Belousek were indicted for attempted burglary, possession of burglary tools and unlawful use of weapons. They were tried together, found guilty by a jury and were each sentenced to the penitentiary for a term of one to five years on each count. Separate appeals were taken. We have affirmed the conviction of Belousek in an earlier opinion, 110 Ill App2d 442, 249 NE2d 693. The same points are made in each appeal, that is, that the convictions rest upon illegally seized evidence and that the defendants were not proved guilty beyond a reasonable doubt. Since the factual circumstances surrounding the arrests and convictions are common to both, we will set them forth in a general way while highlighting those facts unique in their relation to Ellis. For a more complete exposition we refer to our opinion in People v. Belousek, supra.

On August 28, 1964, between 8:45 and 9:00 p. m., Jerome CoIIeran, an Evanston, Illinois police officer, observed a white over green 1956 Chevrolet traveling west on Davis Street in Evanston. Two white men were in the car and although it was dark, neither the headlights nor taillights were on. Officer CoIIeran radioed his home station and the other police cars in the area to advise them of what he had observed and to ask them to look for the automobile.

About ten or fifteen minutes after making the radio call CoIIeran received a radio message that two men in a light car with a dark bottom were suspected of attempting to burglarize an apartment in Evanston. The scene of the attempted burglary was not more than six blocks from the place where Officer CoIIeran had observed the Chevrolet on Davis Street. CoIIeran immediately radioed his fellow officers and asked them to watch for that car, as it might be the same one reported to be used by the suspected burglars.

A minute or two after receiving Officer Colleran’s second call, Officers Lillig and Branstrom observed a 1956 Chevrolet, white over green, several blocks away from the location of the attempted burglary. They stopped the car and directed its occupants to step out. When the passenger door was opened Officer Lillig saw a tire iron protruding from under the front seat where Ellis was seated. As he was removing it, he also found a blackjack next to it. Ellis stated he did not know that either object was there. While the men were being questioned, Officer CoIIeran drove up and recognized the car as the one he had previously seen and the two men as the persons he had seen in it.

At about 9:00 p. m. the same night, Mrs. George Seaverns looked out of a window of her second-floor apartment at 902 Greenwood Avenue, Evanston and observed two men alighting from a car parked at the curb. A few minutes later she went into the kitchen where she heard a noise which sounded like a “scrunching of wood” coming from the back porch. After calling to her neighbor, the noise stopped and she heard footsteps going down the stairs. She went out on the back porch and noticed fresh marks on her neighbor’s door. Upon reentering her own apartment she went back to the window and observed two men walk out and enter a white over dark Chevrolet. She then called the police.

The tire iron and blackjack together with the marked doorjamb were taken to the Chicago Police Department Crime Laboratory where they were tested by a Dr. Forslev. One of the impressions on the doorjamb was measured and found to be the same width as the tire iron. Several fragments of paint were found adhering to the end of the tire iron. After a microscopic examination and chemical analysis they were found to look and react the same as paint fragments taken from the gouged area of the doorjamb. It was Dr. Forslev’s opinion that the particles of paint had a common origin.

Defendant contends that his motion to suppress evidence alleged to have been illegally seized was improperly denied. He argues that the search which yielded the tire iron and blackjack was unreasonable and in violation of his constitutional rights. That contention was disposed of in the Belousek case. The testimony revealed that the articles in question were in plain view. Observation of that which is open to view does not constitute a search, so that seizure of articles in plain view cannot be considered unreasonable. People v. Pickett, 39 Ill2d 88, 233 NE2d 560; People v. Tate, 38 Ill2d 184, 230 NE2d 697. Even if seizure of the items resulted from a search, the search was based upon probable cause and was therefore lawful. See Belousek, supra.

Defendant also contends that the State failed to prove his guilt beyond a reasonable doubt. Belousek also made that argument in his appeal and we disposed of it as unconvincing. After reexamination of all the evidence we feel that our analysis of the Belousek case applies with equal force to the case at bar. The evidence proves beyond a reasonable doubt that a burglary was attempted and that the defendant participated in that attempt.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Edward Garnett, Defendant-Appellant.
    Gen. No. 52,503.
    First District, Third Division.
    July 18, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Morton Zwick, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant, James Edward Garnett, was indicted with Wesley French and John French for the offenses of murder and armed robbery. The defendant was tried separately before a jury and was found guilty of attempted armed robbery and was sentenced to the Illinois State Penitentiary for a term of ten to twelve years.

The defendant contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the verdicts of not guilty of murder and guilty of attempted armed robbery were inconsistent and the guilty verdict should therefore not be allowed to stand; (3) the State’s closing argument improperly shifted the burden of proof to the defendant; (4) it was prejudicial for the prosecution to place before the jury its personal belief of the defendant’s guilt; (5) the State’s use of accomplice testimony deprived the defendant of due process of law and of equal protection of the laws; and (6) the sentence was excessive and should be reduced.

At trial the State produced two witnesses, Wesley French and Larry Hicks, who testified that they were with the defendant on the night in question and that the defendant stabbed the deceased, Frank White.

On direct examination, Wesley French testified to the following. At about 10:00 p. m. on the evening of September 5, 1966, the witness, Larry Hicks, John French, and the defendant went to a drugstore and to a liquor store in which they purchased wine, beer, and several other items. The four men walked along South Park Avenue but stopped as they reached 41st Street, whereupon “me (the witness) and James (the defendant) uh, decided, uh, to rob a man.” The witness and the defendant crossed the street to where they saw the victim, Frank White, walking toward his apartment. Larry Hicks and John French remained on the opposite side of the Street. The defendant asked the victim for a cigarette. White began to walk to the doorway of his apartment building when the defendant and Wesley French ran behind him. As White reached the door to the vestibule, the defendant stabbed him in the back with a green-handled fishing knife. White turned and fell to the vestibule floor and the defendant stabbed him three more times in the chest and the witness went through the victim’s pockets. The two men then fled the scene and returned to Linda Johnson’s house. John French and Larry Hicks were at the house when they arrived.

Larry Hicks substantially corroborated the testimony of Wesley French. While standing across the street, Hicks stated that he saw the defendant stab the deceased. He added that he had never talked to Wesley French after the events of that evening.

On cross-examination, Wesley French admitted that he expected leniency in return for his truthful testimony. He also admitted to having made inconsistent statements prior to trial. He admitted that he had denied any participation in the crimes at the coroner’s inquest. He also revealed that he had made a statement to the police on September 12, 1966, in which he denied that his brother, John French, was with them on the night in question. On redirect examination, the State, with the consent of the defendant, read to the jury a written promise made by the State to Wesley French wherein it stated that in return for his truthful testimony, the murder charge would be dismissed if he pleaded guilty to the armed robbery charge and that the State would recommend a sentence of not less than twelve nor more than fourteen months’ imprisonment.

The cross-examination of Larry Hicks revealed that he too had made earlier statements which were inconsistent with his testimony at trial. He stated that he had lied on those earlier occasions “to keep it all from falling down on me.”

The defendant testified on his own behalf that he had spent the night with his girl friend, Evelyn Tankson. He stated at some time during the evening he fell asleep on the couch and awoke at about 6:00 a. m. on the morning of September 6, 1966. He further testified that Evelyn Tankson’s sister, her two brothers, a friend named Curtis, and Evelyn’s two children were in the apartment with him and Evelyn. According to the defendant, Miss Tankson’s mother arrived at the apartment some time that morning since she was in the apartment when he awoke.

Evelyn Tankson’s testimony was offered by the defendant to corroborate his alibi testimony. She stated that the defendant was her boyfriend and was with her in her apartment from 4:00 p. m. on September 5, 1966, to 6:00 a. m. on the following morning, but on cross-examination she said that she and Garnett stayed awake all evening and neither went to sleep. They danced and listened to records. Her testimony also conflicted with the defendant’s version when she stated that she and Garnett had dinner at 6:00 p. m. at which time her mother was present.

John French, the brother of Wesley French, testified on direct examination that at about 11:00 p. m. that evening he went to a drugstore with his brother Wesley and with Larry Hicks and returned with the two men to Linda Johnson’s house at about 1:00 a. m. that morning. Wesley and Hicks then left and returned at about 3:00 a. m. The witness stated that at no time during that evening did he see the defendant. It appears from the record that the case against John French had been dismissed.

The State then produced the testimony of two police officers who stated that on September 11, 1966, John French made a statement in which he admitted he was accompanied by Wesley French, Larry Hicks, and the defendant on the evening in question.

The defendant asserts that his guilt was not established beyond a reasonable doubt because the State’s case was totally predicated upon the testimony of the two accomplices who admitted to having made statements inconsistent with their trial testimony and because Wesley French testified after a promise of leniency was made to him by the State. It is true that this State has followed the common-law rule that the uncorroborated testimony of an accomplice, if it satisfies a court or jury beyond a reasonable doubt, is sufficient to sustain a conviction of a felony, but it has also been recognized that such testimony is not the most satisfactory, is attended with serious infirmities and should be viewed with the utmost caution. (People v. Wollenberg, 37 Ill2d 480, 229 NE2d 490; People v. Hansen, 28 Ill2d 322, 192 NE2d 359.) But these infirmities relate to the weight and credibility to be accorded such evidence, which are matters within the province of the jury as the trier of fact.

In the instant case, the jury returned a guilty verdict after hearing the State’s promise of leniency to Wesley French and after hearing the prosecution’s witnesses admit that they had lied on prior occasions. They heard these witnesses substantially corroborate each other. The jury also heard the alibi testimony of the defendant and the attempted corroboration of his girl friend, Evelyn Tankson, which contained divergencies from that of the defendant. John French’s testimony that the accused was not with Wesley French or Hicks on the night of the crime was challenged by the introduction of the testimony of the two police officers. Upon a review of the entire record, we conclude that the jury’s finding of guilty of the offense of attempted armed robbery should not be disturbed on appeal.

The defendant next argues that the verdicts were inconsistent and therefore the guilty verdict should not be allowed to stand. He reasons that the only incriminating evidence, the testimony of Wesley French and Larry Hicks, if believed by the jury, established his guilt for both murder and armed robbery, whereas his alibi defense, if believed, would establish his innocence as to both offenses. The court was confronted with a similar contention in People v. Taylor, 56 Ill App2d 170, 173-174, 205 NE2d 807, wherein the court stated:

“There are, however, strong grounds for affirmation of the judgment entered in the court below in the decisions of the Supreme Court in People v. Car-man, 411 Ill 279, 103 NE2d 636 (1952) and People v. Raddatz, 403 Ill 48, 85 NE2d 32 (1949). These decisions, along with others which are unnecessary to cite here, hold that each count in an indictment when charging separate offenses, are separate and distinct as a matter of law, no matter how closely they may be related in fact. Thus in the Raddatz case, supra, the appellant was found guilty of contributing to the delinquency of a minor, but innocent of the charge of indecent liberties. The evidence was the same for both charges, and it was clear that the appellant was guilty or innocent of both charges. Yet the Supreme Court of this State held the jury could return logically inconsistent verdicts, for such verdicts are not legally inconsistent.”

Moreover, the verdicts need not be treated as logically inconsistent since the jury could have believed beyond a reasonable doubt that the defendant participated in the armed robbery attempt but had reservations about his actually stabbing the deceased. Therefore, we find no support to this contention advanced by the defendant.

The defense of alibi was raised by the defendant, and he stated that during his stay at his girl friend’s house, Evelyn’s brothers, sisters, and children were also present. Only Evelyn Tankson testified in support of the alibi defense. In his closing argument to the jury, the prosecutor said:

“Let me talk briefly about the alibi defense. The Defense claims that the alibi is consistent. That Evelyn Tankson and James Garnett are consistent to each other. If that were true, why didn’t some of the relatives of Evelyn Tankson take the witness stand to confirm her testimony? Where is the mother of Evelyn Tankson ? The testimony of Evelyn was that she was home. The testimony of James Garnett was that when he fell asleep at 11:00 P. M. Monday night, not to awaken until 6:00 A. M. or so the next morning, Evelyn Tankson’s mother was not at home. There is only one person who could satisfy that question. She would be a Defense witness. She has not testified.”

These comments, the defendant contends, improperly shifted the burden of proof from the State to the accused in that the jury was led to believe that it was the duty of the defendant to prove his alibi defense in order to escape conviction. Generally, an accused is under no obligation to call witnesses and his not doing so does not raise the presumption that if called, the witness would have testified unfavorably to the accused. (People v. Rubin, 366 Ill 195, 7 NE2d 890; People v. Munday, 280 Ill 32, 117 NE 286.) When, however, the defendant injects into his case his activities with potential witnesses during a particular period of time to establish an alibi, his failure to produce such witnesses is a proper subject of comment on the part of the State. People v. Swift, 319 Ill 359, 150 NE 263; People v. Sanford, 100 Ill App2d 101, 241 NE2d 485; People v. Gray, 57 Ill App2d 221, 206 NE2d 821; People v. Gray, 52 Ill App2d 177, 201 NE2d 756; People v. Lenihan, 14 Ill App2d 490, 144 NE2d 803; see also: People v. Durso, 40 Ill2d 242, 239 NE2d 842; People v. Williams, 40 Ill2d 522, 240 NE 2d 645.

People v. Smith, 74 Ill App2d 458, 221 NE2d 68, cited by the defendant, held that a prosecutor’s closing remarks relative to the defendant’s failure to call one witness in support of his alibi defense deprived the defendant of a fair trial. That case is distinguishable from the case at bar. In Smith, the prosecutor went far beyond mere comment by making the unwarranted remark that the absent witness would be “the most honorable of the defense witnesses who testified” and by specifically stressing the subpoena power of the defendant thereby implying that the State was without power to bring in the witness. The later case of People v. Smith, 105 Ill App2d 8, 245 NE2d 23, is also distinguishable because in that case also, the State’s remarks were highly prejudicial and misleading and went beyond mere comment. The State’s closing argument contained remarks that the absent witnesses were not produced because they did not want to commit perjury by testifying on behalf of the accused. The prejudice was compounded by the fact that the State was aware that the defendant had in fact requested the issuance of seven subpoenas but six were returned unserved and the one witness who had been served did not appear. The closing comments in the case at bar were not so prejudicial as to constitute reversible error. The defendant did not object to the statements now complained of at trial, and it is also significant that the State’s remarks were made in response to defense counsel’s closing argument in which he stressed that the alibi testimony was consistent. In addition, the prosecutor did not argue that the defendant failed to call these witnesses because their testimony would be adverse to him. The fact that the State referred to the absent Mrs. Tankson as a “Defense witness” does not, as the defendant contends, force the jury to conclude that only the defense could have called her. Obviously if the defendant had called her she would be considered a defense witness. For these reasons, we do not think that the closing argument was so prejudicial as to deprive the defendant of a fair trial and to thus necessitate a reversal and remandment of the instant case.

The State’s promise of leniency of Wesley French which was read to the jury contained references to the defendant as the man “who actually stabbed Mr. White” and “who is the actual killer.” The defendant asserts that the reading of these statements allowed the State to inject extra-judicial statements which were highly prejudicial and which were not subject to cross-examination. The defendant did not object to the reading of this statement but in fact consented to its being read. Having failed to make timely objection when the remark was made precludes the defendant from urging such an objection for the first time on appeal. (People v. Switalski, 394 Ill 530, 69 NE2d 315.) Moreover, we fail to comprehend how the aforementioned references could have prejudiced the accused in view of the fact that the jury returned a verdict of not guilty of murder, the crime to which the complained of statements refer.

It is also contended by the defendant that the use of Wesley French’s testimony infringed his rights to due process of law and equal protection of the laws since the State arbitrarily chose to give one coindictee for murder more lenient treatment in order to help secure a conviction of the other. We find no merit to these constitutional objections. (See: Lisenba v. California, 314 US 219.) The State’s use of the testimony of an accomplice who has been promised leniency is judicially well recognized and the fact that such a promise was made goes to the weight and credibility to be accorded such testimony. People v. Williams, 17 Ill2d 193, 161 NE2d 295; People v. McGuirk, 312 Ill 257, 143 NE 855.

The defendant finally contends that the sentence was excessive and should be reduced. The defendant stands convicted of the crime of attempted armed robbery which carries a maximum penalty of fourteen years. (Ill Rev Stats 1965, c 38, § 8-4 (c) (2).) He was sentenced to a term of from ten to twelve years. He was nineteen years of age at time of trial and had been previously sentenced to six months’ imprisonment by a military court martial. The defendant had participated in an armed robbery attempt during which an innocent victim was viciously stabbed. We reject the reasons put forth by the defendant in support of his request for a reduction of sentence. Under these facts, the trial judge did not abuse his discretion in imposing the sentence.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    Edmund J. Skiba, Plaintiff-Respondent, v. Earl S. Ruby, Defendant-Petitioner.
    Gen. No. 52,799.
    First District, Third Division.
    July 18, 1969.

      Joseph A. Bailey and Jerome H. Torshen, of Chicago, for plaintiff-respondent.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, George S. Miller, and Frederick W. Temple, of counsel), for defendant-petitioner.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is a petition by the defendant for leave to appeal from an order granting a new trial in a personal injury suit. The jury’s verdict was in favor of the defendant but the trial court set the verdict aside on the ground that it was contrary to the weight of the evidence.

The suit arose out of a two-car collision which occurred about noon on Milwaukee Avenue, Chicago, at a point where the avenue is an eight-lane, two-way thoroughfare. The plaintiff was driving northwest in the fourth lane from the curb, having turned left onto Milwaukee Avenue from a side street. The defendant was moving from the curb lane, where he had been parked, toward the fourth lane when the two cars collided.

The plaintiff testified that he was driving at a speed of 15 to 18 miles per hour. He saw several cars parked along the curb. The front car had a driver (the defendant) but was motionless. When the plaintiff’s auto was about ten feet to the rear of this car, the defendant moved forward and started to make a sharp turn to the left — the plaintiff’s impression was that the defendant was going to make a left turn. The plaintiff swung his auto to the left and applied his brakes; his auto diagonally crossed the two yellow lines dividing the thoroughfare and came to a stop. As his auto stopped, the plaintiff looked to his right and saw the defendant’s car coming at him at a 90° angle. Its left front struck his auto to the rear of the right door. After the accident he and the defendant exchanged identification. According to the plaintiff the defendant said that he intended to turn left at the next intersection, that he had never seen the plaintiff’s auto and wanted to know where it came from.

The defendant testified that he was parked at the curb and that he intended to drive northwest to the next corner and turn left. He started his motor, pulled forward a few inches and then — lacking an outside rearview mirror — turned his head completely to the side and rear. The closest vehicle moving northwest was about a half block away and he saw no auto about to turn left from a side street. He turned his head to the front and pulled out almost completely into the second lane. As he did so he turned on his left directional signal because he knew he would be veering toward the left. He looked into his rearview mirror and saw that the auto he had first seen a half block away was still “quite a way’s down” and proceeding slowly. He then drove slowly across the second lane toward the third and fourth lanes. As he reached the fourth lane, he started to turn his wheels to the right to follow the path of Milwaukee Avenue. According to the defendant about 80% to 90% of his car was in the fourth lane when it collided with the plaintiff’s auto. The collision damaged his left front fender and bumper and one left headlight. He admitted that he did not see the plaintiff’s auto before the collision.

A Chicago police officer investigated the accident shortly after it happened. He testified that he found the defendant’s car parked at the curb and the plaintiff’s auto in the center of the street. He saw skid marks made by the plaintiff’s auto which showed that the auto was traveling northwest and upon impact slid to the side. The marks were straight and about six to eight feet long; from the point of impact, they extended sideways about one to two feet. The marks indicated to the officer that the plaintiff’s auto stopped abruptly.

The officer also testified that a cement-like substance near the curb stuck to the right tires of the defendant’s car and showed exactly the path of the car from the parked position to the point of the impact. The tracks showed that the vehicle was next to the curb when it started up, that the wheels were turned and the car more or less “arced in” at an angle between 45° and 90° from the curb to the plaintiff’s auto. The officer’s impression was that the driver of the car was making a “U” turn. However, the officer’s diagram of the scene and police report did not show that the defendant’s car was making a “U” turn or was in an arc at the time of the accident. According to the officer, there was no indication that either vehicle exceeded the 30 miles per hour speed limit.

Upon this evidence the jury returned a verdict for the defendant. The trial court disagreed with the jury; the court was of the opinion that the evidence preponderated in favor of the plaintiff and for this reason granted the plaintiff a new trial. It is the trial court’s duty to set aside a verdict if it is not sustained by the greater weight of the evidence. A motion for a new trial is addressed to the discretion of the judge and his judgment will not be reversed except for a clear abuse of discretion, which must affirmatively appear in the record. Potter v. Ace Auto Parts and Wreckers, Inc., 49 Ill App2d 354, 199 NE2d 618 (1964).

The standard to be applied in reviewing the trial court’s judgment is whether the jury’s verdict was contrary to the preponderance of the evidence — not, as suggested by both parties in their briefs, whether the verdict was contrary to the manifest weight of the evidence. The manifest weight of the evidence standard prevails in a court of review when a jury’s verdict is approved by the trial judge, not when it has met his disapproval. Rodriguez v. Chicago Transit Authority, 58 Ill App2d 150, 206 NE2d 828 (1965).

The evidence on both the issues of the defendant’s negligence and the plaintiff’s contributory negligence preponderated in favor of the plaintiff. The evidence showed that the defendant crashed into the side of the plaintiff’s auto after having failed to keep a proper lookout while shifting lanes (and perhaps while making an illegal turn). There was evidence that he swung from the curb to the fourth lane at a 45° to 90° angle and he admitted that he did not see the plaintiff’s auto until the impact. He notes that in pulling away from the curb and in shifting lanes, he looked behind him once by turning his head and once by means of a rearview mirror, but these precautions were inadequate in view of the width of the street and the number of lanes he was traversing. The defendant claims that he could not watch southeast bound traffic which was turning left in front of him and look out for traffic behind him at the same time, but if this is true he should have continued forward without changing lanes until adequate caution was possible — even if this meant missing the street where he wanted to turn. He also contends that his turn signal was on but this did not give him a license to change lanes without adequate precaution.

On the issue of the plaintiff’s contributory negligence, the evidence just as clearly shows that the plaintiff was not negligent — that he drove within the speed limit, kept a proper lookout and took appropriate action when he saw the defendant coming. To establish the plaintiff’s negligence, the defendant relies on the skid marks left by the plaintiff’s auto, the plaintiff’s failure to sound his horn and his alleged failure to bring his car under control. However, the officer testified that there was no evidence of speeding and that the skid marks merely indicated that the plaintiff’s auto stopped abruptly. The plaintiff testified that he put on his brakes, swung to the left and was stopped when the defendant hit him. This testimony was supported by the path of the skid marks and the location of the damage on the cars. Although he did not sound his horn, the defendant cannot complain that the plaintiff failed to take all steps which might have prevented the accident. The plaintiff had to react quickly to an emergency created by the defendant and he did take affirmative measures to avoid the collision.

The trial judge did not abuse his discretion in setting aside the verdict and the petition for leave to appeal from the order granting a new trial will be denied.

Petition denied.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


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    People of the State of Illinois, Plaintiff-Appellee, v. James Faulkner, Defendant-Appellant.
    Gen. No. 52,940.
    First District, Third Division.
    July 18, 1969.

      Manning K. Leiter, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

James Faulkner was convicted of burglary in "a non-jury trial and sentenced to one to two years in the penitentiary. His appeal questions the admissibility of evidence introduced during his trial.

On January 29, 1967, at about 1:15 a. m., two police officers received a radio call of a burglary in progress in a store at Oak and Franklin Streets, Chicago. Because of heavy snow they left their car a block away and walked toward the store. As they approached it they saw about six men crawling underneath its iron gate, carrying merchandise. The men came toward the officers for about 10 feet, and then ran south in an alley. One officer pursued the men down the alley while the other officer ran parallel to the alley but two doors east of it. He came to an east-west alley which intersected the north-south one and, as he did so, he heard his partner yell, “One is going east.” He turned west in the alley and saw Faulkner, one of the men he had seen fleeing from the store, coming toward him. Faulkner dropped the objects he was carrying and tried to kick snow over them. The officer arrested Faulkner and retrieved the merchandise.

The prosecution introduced into evidence three radios which the arresting officer identified as the objects he recovered from the snow. An owner of the store testified that the radios were taken from the store. He said they had no serial number and the manufacturer produced others of the same type, but he recognized them because he had personally set up a group display of the three radios in a glass case.

Faulkner contends that the radios were inadmissible as evidence because there was no proof that they were ever in his possession, that there was no chain of custody established for them pending trial and that their identification by the owner was inadequate.

Faulkner was seen running from the store with merchandise in his possession. The officer who arrested him saw him drop some objects. Three radios were found at his feet. The arresting officer identified the radios introduced into evidence as the objects Faulkner tried to hide. A proprietor of the burglarized store identified the radios and said they were stolen from the store. The radios were adequately identified and properly admitted into evidence. People v. Sellers, 30 Ill2d 221, 196 NE2d 481 (1964); People v. Rembowicz, 335 Ill 604, 167 NE 797 (1929).

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


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    Lillie Birchfield, Plaintiff-Appellee, v. Wabash-Monroe Garage & Parking Corporation, a Corporation, Defendant-Appellant.
    Gen. No. 52,871.
    First District, Third Division.
    July 22, 1969.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (D. Kendall Griffith, Dennis J. Hoban, and Thomas M. Chisham, of counsel), for appellant.
    John C. Mullen, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This action was brought to recover damages occasioned by the alleged negligence of the defendant in the maintenance of its premises. At the close of the evidence, the trial court directed a verdict in favor of the plaintiff on the issue of the defendant’s liability and submitted the cause to the jury on the sole issue of damages. The jury returned a verdict of $12,500 and the trial court refused to allow the plaintiff to amend her complaint to increase the $10,000 ad damnum. The trial court ordered a remittitur of $2,500 and entered judgment on the verdict as reduced to $10,000.

The defendant appeals from this judgment and contends that: (1) the trial court erred in directing a verdict in favor of the plaintiff on the issue of liability and in denying defendant’s motion for a new trial; (2) the trial court erred in not directing a verdict in favor of the defendant; (3) it was error for the trial judge to refuse to allow the defendant to show that the plaintiff had sustained subsequent injury to her right knee; (4) the plaintiff’s attorney made improper and prejudicial comments during his closing argument; and (5) the verdict was excessive. The plaintiff cross-appeals from the trial court’s denial of her motions to amend and increase the ad damnum to over $10,000.

The plaintiff testified that on June 22, 1961, her daughter-in-law drove her to downtown Chicago to visit Dr. Miller who had been treating the plaintiff for an injury to her right knee which had occurred in 1960 when the plaintiff was employed as a machine operator at the Central Tag Company. The plaintiff was walking with the aid of two crutches. At this visit her doctor discharged her from his care. After her visit to Dr. Miller, she returned to the defendant’s garage in which the car was parked. The plaintiff’s daughter-in-law went to the rear of the garage to pay the cashier and to get the car from a garage attendant. The plaintiff did not accompany her daughter-in-law but rather walked into the front of the garage and proceeded to her left to the north side of the garage where there were some pillars. She intended to rest her back on one of the pillars since she was fatigued from walking on two crutches. As she approached the pillar, she turned around so that the pillar was to her back and began walking backwards with the aid of the crutches toward the pillar. As she was backing up, her left heel went down into a hole in the garage floor causing her left foot to double back. The plaintiff testified that she did not see the hole prior to the accident. She further testified that she knew neither the location of the hole relative to the pillar nor how many-backward steps she had taken prior to stepping into the hole. She did not know the size of the hole. After the occurrence, her daughter-in-law drove the plaintiff to her home.

Florence Birchfield, the plaintiff’s daughter-in-law, testified that she also did not see the hole until after the accident. She could not state whether the hole was open or how deep it was. She did state that the hole was six to seven inches in diameter, and she placed the hole to the south of the pillar.

Robert Buck, an investigator, testified on behalf of the plaintiff that within one or two months after the accident he visited the garage where he discovered an open hole of about five inches in diameter to the west of the pillar. Photographs of this hole were taken and one photograph portrayed a hole which was fully open through the floor. These photographs were admitted into evidence over the defendant’s objection.

The plaintiff offered medical testimony to the effect that her left foot and ankle had become permanently swollen and thickened and had become painful and difficult to move. There was medical testimony that this condition was permanent. The plaintiff herself testified that as a result of the accident her left foot continued to be stiff, swollen and painful and that she has used crutches from the time of the accident to the time of trial and has not been employed since the accident.

Warner Riley, the General Manager of the defendant, testified that in September of 1961 he initially learned of the plaintiff’s accident. In July of 1962 he had occasion to examine the area in question but found no holes at that time, but he did discover a patch on the floor to the east of the pillar. He did not know when the floor had been patched or what the area had looked like before it was patched.

The defendant initially contends that the court erred in directing a verdict against it on the issue of liability since the question of its negligence and of the plaintiff’s contributory negligence were proper matters for the jury’s determination and therefore should not have been resolved against it as a matter of law. A directed verdict is proper if all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504; Roth v. Nauman, 90 Ill App2d 44, 234 NE2d 336.) In Ney v. Yellow Cab Co., 2 Ill2d 74, 84, 117 NE2d 74 the Supreme Court stated:

“Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. . . . Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co. 319 US 350.”

It appears to us that the jury in the case at bar should have been permitted to evaluate the degree of care exercised by the plaintiff who, on crutches, walked into an area of a public garage and turned her back on the defect which caused her fall. The question of whether the plaintiff was guilty of contributory negligence was a factual question and should not have been decided as a matter of law. See: Swenson v. City of Rockford, 9 Ill2d 122, 136 NE2d 777; Nugent v. City of Chicago, 110 Ill App2d 167, 249 NE2d 309.

Moreover, the trial court erred in finding the defendant guilty of negligence as a matter of law. The record is conflicting as to the precise character and location of the hole at the time of the accident. The record does not disclose whether the area of the garage where the accident occurred was an area open to patrons of the defendant or foreseeably frequented by such persons. There is no evidence that the defendant had actual knowledge of the hole’s presence at the time of the accident. The photographs of the scene which were submitted by the plaintiff were taken at least one month after the occurrence. When one invites another upon his premises, the law imposes a duty upon that person to exercise reasonable care for his visitor’s safety and to warn the visitor of any defects which are not readily apparent but which are known to the landowner or could have been known had the landowner used reasonable care to discover these defects. (Blue v. St. Clair Country Club, 7 Ill2d 359, 131 NE2d 31.) We cannot conclude that the plaintiff’s testimony and the photographs offered into evidence were such that the defendant’s negligence was established as a matter of law. Such a question should have been resolved by the jury.

In view of our conclusion that factual questions of negligence and contributory negligence were presented at trial, we reject the defendant’s second contention that the trial court should have directed a verdict in its favor based upon a finding that the defendant was not proved negligent as a matter of law.

The trial court refused to allow the defendant to cross-examine the plaintiff concerning a subsequent automobile accident in April of 1966 in which the plaintiff allegedly sustained injury to her right knee. The defendant was also denied the opportunity to introduce the evidence deposition of Doctor Bona which the defendant asserts would show that as a result of the 1966 accident the plaintiff suffered headaches, dizziness, and aggravated pain in her right knee, the same knee injured by the plaintiff in 1960. The exclusion of this evidence the defendant asserts as error. On direct examination, the plaintiff testified that she had not been without the aid of crutches since the day of the accident in question and had not worked since that day. The apparent basis for the judge’s exclusion of the evidence relative to the later automobile accident was that it was irrelevant since the 1966 accident resulted in injury to the plaintiff’s right knee whereas the accident in the defendant’s garage in 1961 related to the left foot. However the trial court’s rulings could have created in the minds of the jury that the plaintiff’s use of crutches and her unemployment were solely caused by the 1961 injury to her left foot. We are of the opinion that if the defendant can connect the subsequent injury to the right knee to some of the plaintiff’s pain and disability prior to trial, such evidence is competent and relevant to the issue of damages. See: Adkins v. Blue Bird Coach Lines, Inc., 27 Ill App 2d 34, 169 NE2d 368 (Abst).

Since the aforementioned errors necessitate a reversal of the judgment and a remandment of the cause for a new trial, it is unnecessary to discuss the defendant’s final two points because it is unlikely that they will occur at the subsequent trial.

The plaintiff has filed a cross-appeal wherein she contends that the trial court erred in denying her motions to amend her complaint to increase the ad damnum. The plaintiff moved to amend the ad damnum at the trial’s commencement on July 12, 1967 and again moved to amend to conform the pleadings to the proof and verdict after the jury returned the verdict of $12,500. Both motions were denied and the defendant’s motion to reduce the judgment to conform to the ad damnum was granted even though the trial judge specifically stated in his order reducing the judgment that the jury’s verdict was not excessive. The amendment provisions of section 46 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 46) are to be liberally construed to the end that a controversy may be decided upon its facts and its merits and in furtherance of justice. (Cain v. New York Cent. R. Co., 35 Ill App2d 333, 182 NE2d 910; Shockley v. Good, 13 Ill2d 298, 148 NE2d 763.) Under the facts and circumstances at bar, the trial judge abused his discretion in denying the plaintiff the right to amend and enlarge her ad damnum especially when the plaintiff so moved at the beginning of the trial. Therefore, upon remand of this cause for a new trial, the plaintiff should be permitted to amend and increase the ad damnum.

For the foregoing reasons, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


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    People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Littleton (Impleaded), Defendant-Appellant.
    Gen. No. 53,004.
    First District, Third Division.
    July 22, 1969.

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

delivered the opinion of the court.

The defendant, Johnnie Littleton, and Gene E. Reed, James Edwards, Johnnie L. Bailey were indicted for the offense of armed robbery. The defendant waived his right to a jury trial, was found guilty of armed robbery and was sentenced to a term of two to five years in the Illinois State Penitentiary. He complains that he was not proven guilty of armed robbery beyond a reasonable doubt.

Edgar Creagh, a witness for the State, testified that in the early morning of September 10, 1966, he was gambling with about twenty-five other patrons in an apartment located at 6218 South Blackstone in Chicago. At approximately 2:00 a. m., he heard a shot and saw two men enter the apartment as one of the two said “this is a stickup.” One man carried a carbine and the other carried a sawed-off shotgun. The witness emptied his pockets and was robbed of his watch, some personal items, and about $200. Creagh further testified that he also remembered seeing a third man but that he did not see the defendant, whom he knew, in the apartment that evening or morning.

Larry Johnson testified for the prosecution that he, too, was present in the gambling house when the robbery occurred. He stated that he did see the defendant in the apartment that evening. The defendant was standing near the door to the apartment while the robbery was taking place, and when the three robbers left, the defendant followed them out of the apartment. At no time did the witness see a weapon carried by the defendant.

Officer Thomas Kelly testified that acting upon information supplied by a woman in the area, he and Officer Eugene Davis drove to the scene and, as they arrived, he saw James Edwards and Gene Reed cross in front of the squad car. Moments later he saw John Bailey. Kelly pulled his revolver and ordered the men to stop. Kelly apprehended Bailey and took him to a parked car where Officer Davis had apprehended Reed and Edwards. Officer Kelly testified that he first saw the defendant sitting in the parked car behind the steering wheel. The car was owned by one Marcus Fuller alias James Edwards. The witness saw his partner search all four men and observed him as he removed property from each man.

Officer Eugene Davis stated that as their patrol car arrived at the scene, he observed Reed, Edwards, and the defendant cross in front of the patrol car. Reed was carrying an automatic in one hand and a bottle of scotch in the other hand. The officer saw no weapon being carried by either Edwards or the defendant. He ran after the three men and apprehended them at the car owned by Edwards. The defendant had already entered the car when Davis reached it. The four men were searched and money and several watches were found on the person of the defendant.

The defendant testified on his own behalf and admitted that he was at the 6218 Blackstone address on the evening and morning in question. He was initially in the apartment from about 10:00 p. m. to 11:00 p. m. He then went to his barbershop where he cut one Lawrence White’s hair. At approximately 2:00 a. m. he returned to the gambling house, and when he arrived he saw a man with a gun. He remained in the hallway until the robbers left. When he reached the street he saw that the police had two men up against a car, and when he crossed the street the police ordered him to get up against the car whereupon he was searched and arrested.

The defense offered the testimony of Lawrence White and Herman Holmes who basically corroborated the defendant’s testimony as to his activities prior to returning to the apartment at the time of the robbery.

The trial court, as the trier of fact in the case at bar, was confronted with conflicting testimony. The State’s witness Johnson stated that he had observed the defendant at the door of the apartment during the robbery and saw him leave behind the three robbers. The police officers testified that the defendant was arrested while he was inside the car owned by James Edwards. The accused denied having been in the car and stated that he was picked from a group of people by Officer Davis and then made to stand with the other three men. The defendant did not testify to any watches having been removed from his person when he was searched.

In arguing that the evidence did not show that he was a party to the offense of armed robbery, the defendant stresses the fact that Edgar Creagh did not see him in the apartment, that no one saw the defendant with a weapon, and that there was no evidence that the watches seized from the defendant were the fruits of the robbery. He also emphasizes his own exculpatory testimony.

Section 5-2 (c) of the Criminal Code (Ill Rev Stats, c 38, § 5-2 (c)) sets out the principles of accountability in criminal cases and reads in pertinent part:

“A person is legally accountable for the conduct of another when:
“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

A person may aid or abet without actively participating in the overt act or acts and evidence that the accused attaches himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common illegal purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. (People v. Rybka, 16 Ill2d 394, 158 NE2d 17; People v. Bracken, 68 Ill App2d 466, 216 NE2d 176.) The proposition is well established that mere presence at the scene of the crime is insufficient to constitute one a principal. But when there is evidence of conduct or other surrounding circumstances which show a design on the part of the accused to aid and abet or assist in its perpetration, the accused can be held accountable for the actions of other members of the group. People v. Richardson, 32 Ill2d 472, 207 NE2d 478; People v. Johnson, 61 Ill App2d 319, 210 NE2d 344.

The testimony of the witness Johnson coupled with the testimony of the two arresting police officers amply supports the conclusion that the defendant was not an innocent bystander but rather aided and abetted in the armed robbery. The defendant refers in his brief to the “alibi” testimony of Herman Holmes and Lawrence White. We fail to understand how their testimony established an alibi defense since the defendant admitted being in the apartment building at the time of the robbery. Even though there was no evidence that the defendant was armed with a dangerous weapon, the record is replete with testimony that other participants were so armed. The unarmed defendant, being legally accountable for the conduct of his armed companions, was properly charged, tried, and convicted of the offense of armed robbery. (People v. Touhy, 31 Ill2d 236, 201 NE2d 425.) The defendant’s brief contains repeated reference to purported contradictions and inconsistencies among the prosecution’s witnesses. The trial court had the opportunity to observe and hear these witnesses and to determine their credibility, and we see no reason to disturb the guilty finding. Therefore, the judgment of conviction is affirmed.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ„ concur.