text:
    In the Matter of the Estate of Ernest J. McBride, Deceased. United States of America, Appellee, v. Shirley I. McBride, Administrator, Appellant.
    Gen. No. 52,491.
    First District, Fourth Division.
    May 14, 1969.
    Rehearing denied June 16, 1969.

      Cummings & Wyman, of Chicago (Stanley M. Cahn, of counsel), for appellant.
    Thomas A. Foran, United States Attorney, of Chicago (George E. Faber, Assistant United States Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This appeal is taken by the administrator of the estate of Ernest J. McBride from an order of the Probate Division of the Circuit Court granting leave to file and allowing the supplemental claim of the United States for unpaid federal income taxes, interest and penalties. The facts are not in dispute.

Ernest J. McBride died on September 26, 1963. His widow, Shirley McBride, was appointed administrator of the estate on October 15, 1963, and letters of administration were issued to her on that date. The administrator’s original inventory was filed and approved on January 22,1964, listing assets of $3,600.

The Internal Revenue Service filed a claim on July 8, 1964, for $19,426.18 for income and social security taxes due from the decedent for the year 1963, together with interest. The claim was allowed in full on August 24, 1964. After a subsequent challenge by the administrator and after a hearing, the claim of the United States was allowed, upon stipulation, in the amount of $5,545.20, on April 25,1967.

In the interim, on January 27, 1965, the administrator filed a Supplemental Inventory listing assets known to be of a value of $5,278.46 and other assets of unknown value but presumed to be minor. On December 7, 1965, the administrator filed a Second Supplementary Inventory listing assets of an additional value of $20,883.08; the inventory was approved as of that date.

Publication for claims was ordered and notice published in the Chicago Daily Law Bulletin on December 15, 22 and 29, 1965. The notice designated the first Monday in February 1966 as the last day for the filing of claims. On April 25, 1967, the United States sought leave to file its “Supplemental Claim No. I,” for unpaid federal income taxes, interest and penalties due from decedent for the years 1956 through 1962 in the aggregate amount of $553,516.51. On June 1, 1967, over the objections of several creditors of the estate, an order was entered granting leave to the United States to file its “Supplemental Claim No. I,” and allowing same against previously inventoried assets as a third class claim in the amount of $545,085.83. It is from this order that the administrator appeals.

Opinion

It is undisputed that the Supplemental Claim of the United States was filed after the expiration of the claim date in the publication notice.

Section 191 of Title 31 of the United States Code provides :

Whenever . . . the estate of any deceased debtor, in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; . . . .

Section 204 of chapter 3 of the Ill Rev Stats provides:

If after 9 months from the issuance of letters testamentary or of administration, the executor or administrator files an inventory listing estate not previously inventoried and thereafter the clerk of the court publishes once each week for 3 successive weeks a notice informing all persons that claims may be filed against the estate of the decedent on or before a date as designated in the publication (the designated date to be the first Monday in the second month following the month in which the first publication is made), all claims not filed on or before the designated date are forever barred as to the estate listed in such inventory.

The administrator argues that section 191 of Title 31, USC, is unconstitutional as being in violation of the Tenth Amendment of the Constitution of the United States if it is interpreted as extending the time for filing a claim of the United States after the expiration of the time limits of a state statute.

It is undisputed that the State has the power under the Tenth Amendment to control and regulate the administration of decedents’ estates. Petition of Worcester County Nat. Bank of Worcester, 263 Mass 444, 162 NE 217 (1928), affd 279 US 347 (1929); People ex rel. First Nat. Bank of Joliet v. Brady, 271 Ill 100, 110 NE 864 (1915). But Congress has the power to lay and collect taxes “to pay the Debts and provide for the common Defence and general Welfare of the United States.” (Constitution of the United States, art 1, § 8.) Section 191 of Title 31 has been held to be constitutional, under that clause, as creating a preference even when contrary to state statutes classifying claims, In re Kuhn’s Estate, 146 Pa Super 1, 21 A2d 513 (1941). Further, in U. S. v. Summerlin, 310 US 414, the United States had a claim against an estate of which Summerlin was the ancillary administrator. The Florida statute provided that any claim not filed within eight months of the first notice of publication was void. In reversing the judgments of the state courts disallowing the claim because of late filing, the United States Supreme Court stated at page 416:

It is well settled that the United States is not, bound by state statutes of limitation or subject to the defense of laches in enforcing its rights. United States v. Thompson, 98 US 486; United States v. Nashville, C. & St. L. Ry. Co., 118 US 120, 125, 126; Stanley v. Schwalby, 147 US 508, 514, 515; Guaranty Trust Co. v. United States, 304 US 126, 132; Board of Commissioners v. United States, 308 US 343, 351. The same rule applies whether the United States brings its suit in its own courts or in a state court. Davis v. Corona Coal Co., 265 US 219, 222, 223.

In Illinois, the case of Harrison v. Deutsch, 294 Ill App 8, 13 NE2d 511, is determinative of the issues in the instant case. There the Collector of Internal Revenue filed a claim for income taxes after the expiration of the time limit for filing claims. Defendant urged that the claim was not allowable from assets already inventoried but was restricted to assets subsequently inventoried. The court held that the government claim was entitled to its preferential status regardless of the late filing and was not to be limited to subsequently inventoried assets. The dissenting judge was of the opinion that the government should be bound by the law of the forum and that its claim should have been allowed only against assets subsequently inventoried. The administrator in the instant case argues that this dissenting opinion was subsequently adopted or at least cited with approval by the Illinois Supreme Court in In re Estate of Bird, 410 Ill 390, 396, 102 NE2d 329, where the court held that the State of niinois cannot claim against previously inventoried assets unless its claim is filed within the time fixed by statute. While the court applied the language and the argument of the Deutsch dissent to the State claim, it did not adopt or approve that language as applied to a claim of the United States.

Therefore we hold that the ruling of the trial judge was proper under the majority opinion in Deutsch. The United States can collect its tax debt from the previously inventoried assets of the state even though the claim was filed after the expiration of the time limit of the state statute.

The second contention urged by the administrator is that the order appealed from reflects a construction and application of section 191 of Title 31 which the Congress did not intend.

Section 192 of Title 31 of the United States Code is in pari materia with section 191 (U. S. v. Western Union Tel. Co., 50 F2d 102 (NY)) and provides:

Every executor, administrator . . . who pays, in whole or in part, any debt due by the . . . estate . . . for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid.

Since an executor or administrator is personally liable if he distributes an estate before paying federal taxes of which he has knowledge (U. S. v. Luce, 78 F Supp 241 (DC Minn)), it follows that Congress intended that federal taxes were to be collected regardless of strict time limitations of state statutes. U. S. v. Summerlin, supra. (See also an article in the March 1969 issue of the Illinois Bar Journal, page 574, entitled “Fiduciary Liability for Federal Taxes of the Decedent.”)

The administrator’s final contention is that the probate judge had no jurisdiction to allow the claim of the United States against previously inventoried assets. The unlimited original jurisdiction of the Circuit Court is conceded. It would be anomalous to hold that the United States had a live and valid claim which it could not enforce. Section 204 of chapter 3, Ill Rev Stats, does not determine the power of the court to hear a claim; it merely sets time limits on filing claims where an inventory listing estate not previously inventoried is filed. The trial court had jurisdiction.

The order of the Circuit Court is affirmed.

Affirmed.

ENGLISH and STAMOS, JJ., concur.

       AMENDMENT X TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA:
      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Osborn Fortson, Defendant-Appellant.
    Gen. No. 52,640.
    First District, Fourth Division.
    May 14, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James D. Hennings 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. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Osborn Fortson, was charged with the crimes of rape, deviate sexual assault and armed robbery. After a jury found him guilty of all three crimes, he was sentenced to the penitentiary for a term of 20 to 40 years for the rape, 10 to 14 years for the deviate sexual assault, and 10 to 20 years for the armed robbery, all sentences to run concurrently.

Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that he did not receive a fair trial because of the prejudicial actions of the prosecutor; that the instruction concerning his presumption of innocence was improper; and that his sentence was excessive.'

Evidence for the State:

Complainant testified that she left home about 6:00 a. m. on Saturday, January 14, 1967 to go to work. As she was walking toward a bus stop, a man ran across the street and asked her what time it was. She told him and continued walking. He jumped behind her, pulled out a knife, and told her to follow him. They were under a bright light, and the complainant looked up and had a close view of his face. The assailant, identified by the witness as the defendant, put the knife to her throat and demanded her money. She gave him $65 that she had in her coat pocket. Defendant then took her across the street to the top floor of a hallway and told her to be quiet. He pulled her dress up and pants down, unzipped his pants, raped her, and forced her to perform an act of oral copulation. Prior to the rape she told him she was ill and he replied “So what?” After he left, the complainant sat in the hall crying, then started running in a direction away from her home, but finally ran home to her husband, who called the police. When the police came, she told them what happened and they all went to the hallway, where the complainant found her coin purse. About an hour later, two detectives came and took her to an apartment. A lady opened the door, and the complainant saw her assailant in the apartment, lying on the couch with his shorts on.

Officer William Johnson of the Chicago Police Department testified that he interviewed the complainant in her home, and she told him that she was raped. She was ill and upset during the interview. They went to the scene of the crime, and he found a coin purse there, which he gave to the complainant.

Officer Francis J. Healy of the Chicago Police Department testified that his partner and he took the complainant to an apartment on the morning of the crime. He knocked on the door and identified himself as a police officer. The complainant identified a man in the apartment as her assailant. He was sitting on the couch in his shorts with the telephone in one hand and his penis in the other. His eyes were bloodshot and he had an odor of alcohol about him. The witness arrested him and in court identified defendant as the man arrested.

Evidence for the Defense:

Ray Joinar, a post office employee who had known the defendant for about five years, testified that on the evening of January 13, 1967, he and defendant bought some alcohol, sat in a hallway and drank it. They parted about 10:00 p. m. that night, when defendant went home.

Beatrice Fortson, defendant’s mother, testified that she lives with defendant and her daughter. On January 13, 1967, her son came home about 10:00 p. m., ate, washed up, and went to bed about fifteen or twenty minutes later. When she got up to go to work the next morning about 5:45 a. m., she saw her son asleep in his room. Her daughter got up at 6:00 a. m. to feed her baby, and her son was still asleep when the witness left the house about 7:15 a. m.

Mary Ann Fortson, defendant’s sister, testified that she lives with her baby, her brother and her mother. Defendant came home about 10:00 p. m. on the evening of January 13, 1967. He ate and went to bed about a half hour later. The next morning she got up about 6:00 a. m. to feed her baby and saw her brother sleeping. She went back to bed after her mother left for work, and saw her brother around 8:00 a. m., when he was making a phone call. About 8:45 a. m., she opened the door in response to a knock. Two men pushed their way into the apartment, and one of them brought in a lady, who identified her brother as the man who had robbed her.

Defendant testified that he lives with his mother and sister, and came home about 10:00 p. m. on January 13, 1967. He ate, washed and went to bed. He got up about 8:05 a. m. the next morning to make a phone call, and never left the apartment that night.

Officer James Hogan of the Chicago Police Department testified for the State in rebuttal that on the morning of January 14, 1967 he went with Officer Healy and the complainant to defendant’s apartment. They did not push their way into the apartment.

Defendant first contends that he was not proved guilty beyond a reasonable doubt.

Positive identification by one witness who has ample opportunity for observation, may be sufficient to support a conviction. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892 (1955). The adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the jury, sitting as triers of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. Evans, 25 Ill2d 194, 184 NE2d 836 (1962).

In the instant case, the testimony of the complaining witness, who had ample opportunity to observe her assailant, was clear and positive. She testified that he came across the street and asked her the time. He then drew a knife, demanded and received her money, took her across the street to a hallway on the top floor of a building at knife point, raped her and forced her to commit an act of oral copulation. She testified that as he first approached she was under a bright light and that she looked at his face closely. Moreover her testimony was corroborated by the evidence that police found her coin purse at the scene of the crime a short time after the occurrence.

In his brief defendant had contended that the pre-trial identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to have denied him due process of law and thus to have rendered the courtroom identification inadmissible. Stovall v. Denno, 388 US 293 (1967). However at oral argument, counsel for defendant conceded that under the facts in this record it could not be shown that the procedure was so improper as to render the courtroom identification inadmissible under Stovall, but argued nevertheless, that the pre-trial confrontation was so unnecessarily suggestive as to render the in-court identification unreliable and created a doubt as to the defendant’s guilt, especially in view of defendant’s alibi. Since the admissibility of the courtroom identification has been conceded, the fact that the confrontation prior to arrest was not made in a lineup becomes merely a question of the weight to be given it by the jury. People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599 (1959); People v. Boney, 28 Ill2d 505, 192 NE2d 920 (1963). As we have noted, the testimony of the complainant was clear and positive, and her opportunity to observe her assailant was excellent. The jury heard the alibi defense testified to by defendant and the several other witnesses. The jury concluded that the defense was not worthy of belief and we cannot say that such a conclusion was erroneous in view of the clear and convincing testimony of the complainant.

Defendant next contends that he did not receive a fair trial because of the prejudicial comments made by the prosecutor, citing 7 specific instances:

1) After defendant’s mother had completed her testimony, counsel for defendant went outside the courtroom to bring in his next witness, the court having previously entered a rule excluding witnesses from the courtroom. At that point the assistant State’s Attorney in the presence of the jury objected to defense counsel’s actions, stating that the State used the bailiff to bring the witnesses into the courtroom so that there would be no question about his communication with the witnesses about anyone else’s testimony. Defense counsel returned to the courtroom at this point and objected to the remarks of the prosecutor and requested a mistrial. While denying the motion for a mistrial, the trial court immediately sustained the objection of the defense and instructed the jury to disregard the comments of counsel on both sides.

We recognize the rule that extreme care is required to prevent prejudicial arguments or comments which might deprive defendant of a fair trial, and that this is especially true in sex cases. People v. Garreau, 27 Ill2d 388, 189 NE2d 287 (1963). However in People v. Berry, 18 Ill2d 453, 165 NE2d 257 (1960), while noting that the assistant State’s Attorney used intemperate language and made comments which were subject to criticism, the court went on to say at page 458:

“Where it appears that improper remarks do not constitute a material factor in the conviction, or that they are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed.”

Although the comments of the prosecutor regarding defense counsel’s departure from the courtroom were improper and unwarranted, we believe that the prompt action of the trial judge in sustaining defendant’s objection and instructing the jury to disregard the comments prevented any prejudice to the defendant. It should also be noted that in his closing argument to the jury, defense counsel alluded to the prosecutor’s comments about his going out of the court to get his witness. Again the trial court reminded counsel that he had instructed the jury to disregard all that was said in that regard, and he expected the jury to do so. While we reject the State’s contention that counsel for defendant did anything improper in simply leaving the courtroom to bring in his next witness, thereby provoking the prosecutor’s comment, we conclude that the trial judge’s action in twice instructing the jury to disregard the comment prevented the assistant State’s Attorney’s remarks from becoming prejudicial.

Defendant points out that in People v. Garreau, supra, the Supreme Court stated that the prejudicial effect of an improper argument cannot always be erased from the jurors’ minds by an admonishment of the court. But there in closing argument, the prosecutor referred to the defendant as a pervert, weasel, moron, and one who would rape a dog and every member of the jury. Moreover the court noted the jury fixed the sentence in that case.

The other cases cited by defendant, People v. Polenik, 407 Ill 337, 95 NE2d 414 (1950); People v. McGeoghegan, 325 Ill 337, 156 NE 378 (1927), reveal that the conduct and comments of the prosecutors made continually throughout the trials transcended all fundamental fairness and were clearly prejudicial.

2) During closing argument the prosecutor stated that the defendant’s sister “covered up” for the defendant at trial, characterized some of the testimony of both alibi witnesses as “unbelievable”, and stated that it was a crime for witnesses to testify falsely. Such comments constituted nothing more than fair comment by the prosecutor on the evidence, and were not improper.

3) In the course of closing argument the prosecutor, after pointing out that defendant and Joinar had been drinking together the evening before the crime, stated “this is just enough equipment to give the defendant that little extra power to perform this type of act.” Defendant’s objection was overruled. Arguments based upon the facts in evidence or on legitimate inferences therefrom are proper. People v. Ostrand, 35 Ill2d 520, 221 NE2d 499 (1966).

4) Defense counsel in closing argument inquired as to why the State was trying to hold something from the jury since they had not called the complainant’s husband as a witness. The prosecutor in his reply stated: “Are we going to put on a distraught husband in this courtroom to disrupt the proceedings?” Defendant’s objection was overruled. While the comment was outside of the evidence, defendant cannot complain because his own remarks invited and provoked the retort. People v. Lewis, 25 Ill2d 442, 185 NE2d 254 (1962).

5) In the course of closing argument the prosecutor stated: “Ladies of the jury, put yourselves in the place of (the complainant)”. The defendant objected; the court directed the prosecutor to direct his remarks to all of the jurors and the prosecutor stated that he would. We recognize that individual members of the jury should not be singled out by counsel, but no prejudice occurred to the defendant where the objection was made and the improper argument was immediately corrected.

6 and 7) Defendant complains about two other statements made by the prosecutor in closing argument. No objections were made to those remarks at trial, and this court will not consider those two instances.

Defendant next contends that the trial court committed reversible error in giving State’s Instruction Number 1 which read as follows:

“The indictment in this case is not to be considered as any evidence or presumption of guilt against the defendant. It is a mere formal charge necessary to place the defendant upon trial. The defendant under the law is presumed to be innocent of the charge in the indictment, and this presumption remains throughout the trial with the defendant until you have been satisfied by the evidence in the case beyond all reasonable doubt of the guilt of the defendant. This presumption of innocence is not intended to aid any one who is in fact guilty of crime to escape, but is a humane provision of the law intended, as far as human agencies can, to prevent an innocent person from being convicted. Throughout this case the burden of proving the guilt of the defendant beyond all reasonable doubt is on the State and the law does not require the defendant to prove his innocence.
“If you are convinced from all the evidence in the case beyond all reasonable doubt that the defendant is guilty as charged in the indictment, it is your duty to find such defendant guilty. If you are not convinced from the evidence beyond all reasonable doubt of the guilt of the defendant, it is your duty to find such defendant not guilty.”

Defendant contends that the qualification of the presumption of innocence as set forth in the instruction in question conveys the impression to the jury that the presumption of innocence exists only to defendants “believed” to be innocent and not to those defendants “believed” to be guilty, citing Murphy v. State, 195 So2d 847 (Miss 1967).

However the presumption of innocence instruction here questioned has been approved in a line of cases. People v. Scarbak, 245 Ill 435, 92 NE 286 (1910); People v. Lenhardt, 340 Ill 538, 173 NE 155 (1930); People v. Henderson, 378 Ill 436, 38 NE2d 727 (1942). The instruction specifically recites that the presumption of the innocence of defendant remains in force throughout the trial and also that the burden of proving defendant’s guilt beyond all reasonable doubt is on the State, and that the law does not require defendant to prove his innocence.

In Reynolds v. United States, 238 F2d 460 (9th Cir 1956), cited by defendant, the court held that the giving of a qualified presumption of innocence instruction constituted reversible error. But that instruction failed to state that the burden of proving defendant’s guilt was on the prosecution, and that the law did not require defendant to prove his innocence.

We find that the instruction in question sets forth the law as to presumption of innocence with sufficient accuracy, under the cases cited, so as not to justify reversal of this case on that account. We assume that in the future IPI Criminal Instructions 2.02 and 2.03 will be used to cover this subject and will obviate the objections raised in this case.

Defendant finally urges that the minimum sentence of 20 years for the crime of rape is excessive, and that it should be reduced.

While reviewing courts have the power to reduce sentence, (Supreme Court Rule 615(b) (4); Ill Rev Stats (1967), c 110A, § 615(b) (4)), this power should be used sparingly and only in cases where it appears that some substantial prejudice to the rights of the defendant has occurred. The imposition of sentence is peculiarly within the discretion of the trial court, and unless clearly abused the court of review will not interfere. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (1965), People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965).

Although defendant was just 20 years of age at the time of trial with a prior record of only one misdemeanor conviction for which he served 30 days, in view of the circumstances and heinousness of the crime, we cannot say that the sentence imposed was excessive.

It was well within the limits imposed by statute, and the record does not disclose that it was the result of any bias, prejudice or abuse of discretion.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank J. Bruno, Defendant-Appellant.
    Gen. No. 53,274.
    First District, Fourth Division.
    May 14, 1969.

      Blacher, Buckun & Nellis, of Chicago (William J. Nellis, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Theodore Shapero, and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a conviction, after a bench trial, of the offenses of rape and deviate sexual assault. Judgments were entered and the defendant was sentenced to three to eight years in the Illinois State Penitentiary on each offense, the sentences to run concurrently. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) the sentence was manifestly excessive.

EVIDENCE

Testimony of complaining witness:

She is divorced and living with her three children, ages six, five and three and one-half. She occupies a three bedroom house with two bedrooms upstairs and one downstairs. Her parents’ home is about twelve feet away and her other neighbor about thirty feet. She is five feet four or five inches in height and weighs about 135 pounds and has no physical infirmity or disability. On May 5, 1967, she went to sleep at 10:00 p. m. in the downstairs bedroom with her three year old daughter. At about one o’clock the doorbell rang and she got up, put on a floor length robe over her nightgown and answered the door. The defendant was at the door and he said, “It’s Frank. Let me inside.” She had met him once or twice before and remembered him vaguely. She said, “What’s the matter ?” and he replied, “I don’t know.” He put his hand to his head like there was something the matter with him, like he was in trouble.

She met defendant a few months prior to the incident when he drove her and her date, Jack Soper, to a party. She had met the defendant once before with his wife. Defendant had never been a guest in her home. On May 6th she did not remember his last name although she did know his first name.

She let defendant into the house. He sat on the couch and she sat in another chair. A conversation took place. Defendant asked if she had a gun. The telephone rang in the dining room and it was Jim Wallace on the phone. She asked Jim if he knew the defendant but she could not remember defendant’s last name so she asked him what it was. He said his name was “Fred. Fred Keno.” She told Jim and asked him to come over. Defendant then asked if she would make him some coffee; when she refused he said that he thought he had better go, and he asked her to walk him to the door. She refused.

Defendant got up and she got up, and then he walked towards her and grabbed her and threw her down on the couch, and a lamp fell over. He grabbed her around the shoulders. He threw her down on the couch and started choking her. She does not know if she was screaming or crying or what. He said, “If you shut up I’ll leave you alone.” So she shut up, and then he pushed her onto the floor. He then pushed up her nightgown and he forced his way to have intercourse with her.

He then let her get up. She was crying or screaming and he said, “Just be quiet and I’ll leave. I’ll leave you alone.” And he said, “I’m sorry, I’m sorry.”

He went toward the door and then he turned around and came at her again and pushed her down on the floor. They struggled for awhile and then he got down on top of her. He was moaning and groaning and he forced her to commit an act of oral copulation.

Then the doorbell rang and defendant got up and told her to shut up. He took her into the hallway. She had told him previous to this that James Wallace was going to come over; and she kept telling him. She said, “Leave, Jim’s going to come over.” He said, “If that guy comes through the door I’ll kill him.”

She is not sure when she told him about Jim Wallace coming over. It might have been right after the telephone conversation or it might have been when he came back at her again. At the time he left her son had fallen out of bed upstairs, so she ran upstairs and put him in bed. She came downstairs and looked out the window and saw defendant walk right to a car that was two doors down. She then called the police and called her father who lives right next door. The police arrived in five minutes. She spoke with Officer Toomey. She described what happened and described the defendant. She told the officer that defendant had told her that his name was Fred but that she believed that it was Frank. The police took her to the hospital.

In court she identified a picture of defendant and noted that he was wearing a brace in the picture. She had felt the brace when she was battling with him on the floor. She identified the nightgown that she was wearing the night of the occurrence and noted that it was ripped along the top. It was not ripped before defendant came into her home on the night in question.

The lamp was knocked over as she was thrown to the couch. Neither the bulb nor the filament broke. The lamp was off during the first act of intercourse. It must have gone off when it fell over, but the bulb was not broken. She is not really sure how the lamp went off; in fact she is not sure if the lamp was off. She does not remember if defendant turned off the lamp. She told the Grand Jury that the lamp was knocked over. After her testimony to the Grand Jury was read to her she remembered stating that defendant shut the lamp off.

There was an intercom system between her house and her father’s but it never worked well. She doesn’t believe that it was working on the night in question. She never left it on all the time. It was a system where one party had to buzz the other to talk. She did not scream or cry to bring her mother to her house.

Defendant was choking her hard but it left no marks on her; neither were there bruises from the fighting, wrestling and choking.

During the act of intercourse she did not scratch him nor did she scream; she was frightened. Defendant never threatened her children.

During the act of oral copulation she attempted to bite him and he stopped and started choking her. She stated:

He was moaning, he was groaning, he was like he was out of his mind. He was making enough noise that the kids could wake up. If they came down and saw that, wouldn’t that have been nice!

Testimony of James Wallace, called by the State:

On May 6, 1967, he was employed by Republic Steel in Chicago and he worked on the 4:00 p. m. to midnight shift. After work that day he stopped off and had a couple of beers and then called the complaining witness at about 1:00 a. m. After the conversation he finished his beer and proceeded to her house.

He rang the bell but the house remained dark. He rang the bell a few times and he knocked on the door; then he knocked on the window which is immediately to the left of the door. He knocked on the window a few times but there was no response. He then proceeded to the back door and knocked there. Through the back window everything looked dark. When he looked in through various windows of the house he did not see any lights. He did not hear any screams nor any crying. He did not hear anything. He then drove his car to a tavern two blocks away and called complainant’s home. The line was busy. He called again after five or six minutes and the complainant’s father answered. After that, he finished his beer and went past the house but did not stop.

Testimony of Edward Toomey, called by the State:

He is a police officer. He arrived at the house of the complaining witness at about 1:55 a. m. She was crying and upset when he arrived and they could not get much information from her until she was given an opportunity to sit down for awhile.

He got a description of the offender. She did not know the first name very clearly; she said either Fred or Frank, and she did not know the last name. He arrested the defendant in front of defendant’s house at about 4:30 a. m. of the same morning.

He inventoried the nightgown and defendant’s clothes. He obtained the nightgown from the hospital. It was inspected by detectives from the Homicide Unit. They are the ones who brought her to the hospital and back.

Testimony of Frank J. Bruno, defendant:

He is separated from his wife. He has children whom he supports. He was employed at Motor Express, Inc., as a truck driver.

Prior to May 6, 1967, he knew the complaining witness. He had known her for a few years but not really well. He saw her last about two and one-half months before the day in question at a party. He saw her when she was with Jack Soper on the night of the party. At that time he went into her house with Soper and stayed for about twenty-five minutes.

He has never gone out with her socially but he had had conversations with her prior to the day in question. On the day in question previous to 1:00 a. m. he had been in the M. & B. Club for a couple of hours. He had been drinking. He left the lounge and drove, alone, to her house. He had not intended to go there; he was heading for a lounge in that neighborhood, Poinsettia. He parked in front of her house, walked up and rang the bell once. He stayed in front for a few seconds and was about to leave when a light came on and she came to the door. She looked out of the window and started opening the inner door and said, “Oh, hi, Frank.” She asked him in and he went; she closed the door behind him. He did not force his way into the house, he was invited. He sat on the couch and she sat down next to him on the couch. She was wearing a housecoat and a nightgown. He had on a suit jacket, dress pants, dress shirt and a back brace. Her housecoat had buttons and was not buttoned; she was sort of holding it closed. She never buttoned the housecoat. He had no weapon of any kind.

They conversed for about ten minutes and then the phone rang. She answered the phone in an adjoining room and returned in about five minutes and asked if he knew James Wallace. She said that it had been Wallace on the phone and that he was going to stop over later. Defendant said that he had only stopped over to say hello and that he had better be going. They both stood up only a matter of inches apart. He grabbed her by the waist and leaned down to kiss her; he kissed her on the lips and she kissed him back on the lips. She did not say anything.

The both sort of slid down on the couch. He was on his knees on the couch and reached over and shut off the light; the lamp did not fall to the floor. She did not say anything; she made no noise nor did she make any motions. He reached down and pulled up her nightgown and housecoat and had intercourse with her. She did not attempt to push him away, she did not scream or cry; she responded to his love making. She did not bite, kick or scratch. He did not have to wrestle with her.

Just as they completed the act of intercourse there was a knock at the door; they were about six feet from the door. They then proceeded to the kitchen on defendant’s suggestion. He did not drag her or force her into the kitchen, nor did she scream or cry. He kissed her once in the kitchen; she made no attempt to fight him off, nor did she ask him to leave, nor did she scream or cry.

As they walked back into the living room he said that he thought that he better go and she agreed. They were next to the couch and he kissed her again, and they slid down onto the floor and an act of oral copulation took place. At first she wanted to have intercourse in the normal manner but after he said, “Oh, come on” she consented to the oral copulation.

After they got up her kissed her. He said that he would call her later in the week and she said that would be fine. He never threatened to harm her children.

At no time and in no manner did she resist his advances. He knew that she was divorced and that she was living alone with her children. He never told her that he was in any trouble. He had not seen nor spoken to her in a month and a half, since the party. When he left she was not crying and she was not upset.

He decided to stop over because on a previous occasion when he had seen her she had asked him to stop over. At the party a month and a half before during conversation she had said, “Stop over any time.”

Testimony of Joseph Price, called by the defense: He is a mircroanalyst in the Scientific Crime Detection Laboratory of the Police Department. He examined the nightgown of the complaining witness and submitted a written report of the examination. His examination revealed no damage to the nightgown.

OPINION

Defendant first argues that he was not proven guilty of rape beyond a reasonable doubt. The crime charged is defined in the Criminal Code, Ill Rev Stats 1965, c 38, §11-1:

(a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape.

It is not disputed that there was an act of sexual intercourse between the defendant and the complaining witness; the question is whether the act was proven beyond a reasonable doubt to be forcible and without consent.

In People v. Faulisi, 25 Ill2d 457, 185 NE2d 211, the complainant admitted defendant into her home at 3:00 a. m. while clad only in pajamas. She testified that she was forced into a bedroom and struggled to fight off the defendant; that she had bruises (which was uncorroborated) ; that she had a one-quarter inch cut near one eye; that she was sent to the hospital. The doctor did not testify. The evidence also showed that there was one house 20 feet away and other houses nearby and that the downstairs apartment was also occupied. Defendant admitted the intercourse but denied using force. The court first stated generally at page 461:

When the charge is forcible rape, the fact that the act of intercourse was performed forcibly and against the will of the complaining witness is a necessary element of the crime which must be proved beyond a reasonable doubt. The degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case. Thus we have held that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker. (People v. Ardelean, 368 Ill 274.) It is, however, fundamental that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will.

The court in reversing the conviction then stated at page 463:

We are constrained to say, after a careful review of the entire record, that the testimony of the complaining witness is not sufficiently convincing to lead to an abiding conviction of the defendant’s guilt. Under such circumstances her evidence should be corroborated by some other testimony, fact or circumstance. (People v. Hiller, 7 Ill2d 465.) Here the only corroboration concerned the 14-inch cut under her eye, and the fact that she telephoned her husband and told him she had been raped. In our opinion, however, more striking than these corroborating factors is the complete absence from the record of other corroborating evidence which might reasonably have been supposed to be available had the complaining witness been raped, for example, the failure to produce medical testimony as to the injuries to the complaining witness despite the fact that the record shows that there was a medical examination, her failure to cry for help, and the absence of any physical evidence of any struggle sufficient to overpower physically or overcome the will of the complaining witness.

In the instant case there was no cut or other manifestation of physical injury. There was corroboration as in Faulisi of police notification. However, this evidence of complaint, although competent to corroborate her testimony, is not proof of the commission of the act. People v. Scott, 407 Ill 301, 306, 95 NE2d 315. The evidence showed that complainant voluntarily let the witness into her house at one o’clock in the morning. She claimed that she did so because he seemed to be in trouble; but this is disputed by defendant and it does not appear that she asked him to leave immediately after discovering that he was not. She stated that she was thrown down onto the couch, that the lamp next to the couch was knocked over, that she was either screaming or crying, and that she was choked in order to make her be quiet. On cross-examination she admitted having testified before the Grand Jury that defendant had turned off the lamp. Defendant testified at trial that he turned the lamp off, and it does not appear that the lamp or the bulb in it was damaged. If it is true that the complaining witness was screaming or crying, it is reasonable to suppose that her children, her parents or the neighbor would have heard her outcries. And if complaining witness was harshly choked, it is incredible that there were no marks of any kind on her throat nor any bruises on her body. Although she was taken to the hospital, no medical evidence was introduced. Furthermore, the crime lab specialist who examined the nightgown shortly after the occurrence testified that there was no damage at all to the gown. This evidence strongly implies that there was no resistance.

There also does not appear to be any attempt to summon help although the complaining witness had several excellent opportunities to do so. She claims that she began to fear some harm when defendant told her that his name was Fred Keno when she knew that his first name was Frank. At the time that she inquired the defendant’s name she was talking to James Wallace on the telephone which was in an adjoining room and yet, despite being scared, she did not manifest any fear to Wallace. She did ask him to come over to her house, but there was no apparent urgency in the request, and Wallace took the time to finish his drink before leaving for her home. Further, the whole question of the conversation concerning the defendant’s name is suspect because she testified that the defendant identified himself as “Frank” before she admitted him into her home. Although she testified that she didn’t believe the intercom system to her father’s house was working, she did not attempt to use it or to telephone for help from the dining room while defendant sat in the living room. Her best opportunity to summon help came when James Wallace knocked at her front door, but she chose to remain silent. It is not reasonable that defendant’s alleged threat to kill Wallace would be sufficient to deter a woman who had just been raped from summoning aid.

All of these elements taken together raise a reasonable doubt of the defendant’s guilt of the crime of rape and we conclude that the evidence was insufficient to establish beyond a reasonable doubt that the act was forcible and against the will of the complaining witness.

Defendant was also convicted of the crime of deviate sexual assault. It is defined in the Criminal Code, Ill Rev Stats 1965, c 38, § 11-3 (a):

(a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.

The Committee Comments to that section state:

The phrase used in section 11-3 is intended to state generally the equivalent of the force requirement in rape. (See People v. DeFrates, 395 Ill 439, 70 NE2d 591 (1947). This case involved a conviction for rape and the crime against nature growing out of a single transaction. The same conduct would likewise be covered by the rape (§ 11-1) and deviate sexual assault (§ 11-3) provisions of the Code.) The Committee felt it unwise and unnecessary to attempt to spell out in precise detail the nature of the threats that are included within the “threat of force” phrase employed. It was deemed safer to provide a general guide which can be refined by the courts to cover particular fact situations. Obviously, all possible fact variations could not be covered in the draft.

Under the circumstances of the instant case and for the reasons hereinabove stated we conclude that defendant was not proved guilty of a sexual deviate assault. Since we are reversing the convictions, it is not necessary for us to consider the excessiveness of the sentences.

The judgments of the Circuit Court are reversed.

Reversed.

ENGLISH and McNAMARA, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William M. Sutton, Defendant-Appellant.
    Gen. No. 52,579.
    First District, Third Division.
    May 15, 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.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant herein was tried by the court without a jury on charges of attempt to murder and of aggravated battery. He was tried on April 12, 1967, was found guilty on both counts and was sentenced to the Illinois State Penitentiary for a term of not less than five nor more than ten years. From this conviction defendant appeals.

The defendant on appeal contends that (a) the method of the identification of the defendant was improper and highly prejudicial and (b) he was not proven guilty beyond a reasonable doubt because he tendered an alibi which was disregarded and because his identification was vague and uncertain.

On December 2, 1966, Michael D. Davis, the complaining witness, was riding in an automobile with Clarence Simmons, Yvette Shannon and James Macon. At about 11:30 p. m. the car, which was driven by Simmons, came to a stop at South Parkway where there was a flashing red light. There were fluorescent lights on all four corners and the car lights, which were bright, were turned on. The defendant with two other young men who were walking north on South Parkway approached the car. One of the young men threw a garbage can in front of the car. The three of them walked around the front of the car and were banging on the car with their hands. One of them also threw a bottle at the car. The three male occupants of the car got out. Davis and Macon were on the passenger side while Simmons was on the driver’s side. One of the young men who had approached the car swung at Davis and then a voice said, “Shoot him! Shoot, him, God damn it, or I will.” Davis was then shot in the back after which he ran west toward the back of the car. He was shot twice more and lost consciousness and was revived in the hospital. Davis did not know who shot him.

Clarence Simmons testified that he was the driver of the car and that he got out of the car on the driver’s side. The defendant Sutton was on the driver’s side of the car about ten feet from Simmons. Simmons saw Sutton with a gun and saw him fire three times. Sutton was wearing a three-quarter length black leather jacket and had on a plaid golf-like cap and a sport jacket under the leather jacket. Simmons said Sutton was very bowlegged. On December 4, 1966 Simmons identified a picture of Sutton “as the person who shot Michael Davis.”

James Macon testified that he was a passenger in the car and got out on the passenger side. He heard a shot and saw Davis fall. Macon saw Sutton on the driver’s side about fifteen feet away. Macon saw Sutton fire the other two shots. He noticed that Sutton was bowlegged and that he had on a dark coat and a light one under it. He was wearing some kind of cap. On December 4, 1966, one of the detectives showed Macon a picture and from it he identified Sutton. He also saw a lineup photograph. Sutton was in the lineup photograph along with eight other people. Macon saw both photographs on the same day.

Detective Donald J. Moriarity was called as a witness by the defense. He testified that two detectives had brought Sutton and eight other young men into the police station and that the police were unable to contact the witnesses so they took a Polaroid photograph of the nine young men. Moriarity further testified that the victim and eyewitnesses identified the defendant from police photographs.

The defendant testified that he left his home at 4823 South Prairie Street on December 2, 1966 at about 8:00 p. m. He denied that he shot Davis and denied that he was at the scene. He also testified that he was in various business establishments and in some of them he talked with friends and acquaintances.

Defendant first contends that the identification of the defendant was improperly made and highly prejudicial and that it was based on inadmissible testimony of the complaining witness and the police officers. Defendant cites Stovall v. Denno, 388 US 293, in support of his contention that a constitutionally invalid pretrial confrontation for identification purposes precludes admission of courtroom testimony concerning that identification. Stovall, however, also stated that the principle set forth in the cases of United States v. Wade, 388 US 218, and of Gilbert v. California, 388 US 263, that defendant is entitled to counsel at his pretrial identification would not be applied retroactively, but would only be applied prospectively from June 12, 1967. The photographs of Sutton were shown for identification purposes on December 4, 1966, and December 5, 1966, and the trial was concluded on April 12,1967.

While the case at bar is a pre-Wade and preGilbert case, there remains the issue whether the totality of the circumstances surrounding the identification of the accused was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” (Stovall v. Denno, supra, at page 302. See also: People v. Bey, 42 Ill2d 139, 246 NE2d 287.) The circumstances surrounding the instant identification in no way deprived the defendant of due process of law since there is nothing in the record to indicate that anyone suggested to the witnesses that the defendant was a participant in the crime prior to their clear and unequivocal identification of the defendant from police photographs. It is also significant that James Macon identified the defendant from a lineup photograph of nine men. There is no requirement that a lineup must be held to insure a proper identification, and generally the manner or method of identification goes to the weight rather than the competency of the identification evidence. (People v. Brinkley, 33 Ill2d 403, 211 NE2d 730; People v. Capon, 23 Ill2d 254, 178 NE2d 296; People v. Tunstall, 17 Ill2d 160, 161 NE2d 300; People v. Ford, 89 Ill App2d 69, 233 NE2d 51; People v. Lewis, 92 Ill App2d 463, 236 NE2d 417.) In People v. Tunstall, supra, and in People v. Capon, supra, the defendants were identified by pictures only.

The defendant quotes from Wall, Eye Witness Identification in Criminal Cases, which emphasizes that photographic identification procedure must be employed with great care for it creates certain grave problems in the administration of criminal justice. Wall also contends that where a suspect is identified from a photograph, there should be numerous photographs shown and in addition thereto such photographic identification is inherently weak. However, in this case one photograph containing nine persons was shown and the defendant was identified as the one who committed the offenses. Furthermore, in People v. Capon, supra, the Supreme Court held that there is no requirement that a defendant be identified at a police lineup. In that case the police brought photographs to the victim. She identified one photograph as that of the defendant. After the robbery in Capon, the witness first saw the defendant some six months later in court. The court on page 257 said:

“Considering the conditions under which defendant was observed, and considering that her identification was positive, credible, and unshaken on cross-examination, we cannot say that the jury’s verdict was against the manifest weight of the evidence or that the identification was doubtful, vague, and uncertain.”

The identification of the defendant in the instant case was neither doubtful, vague nor uncertain. Both Simmons and Macon testified that they saw the defendant shoot Davis. There were fluorescent lights on four corners of the intersection where he was shot and the car lights were on. Davis, the victim, testified that he identified the defendant based upon his view of the defendant when the car was stopped and that the police did not tell him that Sutton was the man who was present at the time of the occurrence. Simmons testified that he was able to identify the person portrayed in the picture as the man who shot Michael Davis. He testified that he was able to identify him from what he saw on the night of the occurrence. He also stated that his first identification was predicated upon what he saw on the night of the shooting.

As mentioned before, defendant quotes at length from Wall, Eye Witness Identification in Criminal Cases, Chapter III, concerning alleged weaknesses of identifications made from photographs. In commenting on Wall’s observations, this court in People v. Bailey, 90 Ill App2d 121, 124-126, 234 NE2d 332 said the following:

“While not saying so specifically, he (the defendant) would have us ignore the rule that the credibility of a witness is for the trier of fact to determine and that only in exceptional cases should a reviewing court disturb the jury or the trial court’s decision.
“The conclusion the defendant would have us reach is that such evidence is not trustworthy because certain cases have revealed erroneous identifications. What percentage such cases bear to the whole is unknown and in all probability unknowable.
“But, as Professor Wigmore points out, it is impossible to ascribe a greater weight to one class of evidence than to the other, and each class has its special dangers and advantages. Nearly all evidence is produced through human beings and, as such, the weight to be accorded it is a matter of credibility to be determined by the jury. 1 Wigmore, Evidence, §26 (3rd ed, 1940).”

The defendant attacks the identification testimony of the complaining witness on the ground that it was hearsay and inadmissible. In People v. Cook, 38 Ill2d 363, 211 NE2d 374, a police officer was permitted to testify over objection that he had looked at some pictures at police headquarters and had identified the defendant’s picture as that of the man he had seen in the tavern. In that case, the court held that the extrajudicial act of identifying a photograph is not hearsay and that the essential feature without which testimonial offerings must be rejected is the opportunity for cross-examination of the party whose assertions are offered. In that case the officer was present in court and was subjected to cross-examination.

In the instant case Davis was present in court and was subjected to cross-examination. His testimony showed that he had previously identified the defendant and it was not offered to bolster an identification by a third party.

The defendant next contends that the testimony of Detective Moriarity which related the identification of the defendant by the witnesses was hearsay. While it is true that such testimony was hearsay (People v. Harrison, 25 Ill2d 407, 185 NE2d 244), the testimony of Moriarity which is now assigned as error was elicited by defense counsel. No objections to Moriarity’s answers were made by defense counsel, nor did he move to strike the answers. The defendant having asked for this information, cannot object thereto. People v. Sauber, 68 Ill App2d 133, 214 NE2d 918.

Defendant next contends that the defendant was not proven guilty beyond a reasonable doubt and cites from Stovall v. Denno, 388 US 293, wherein the court said that a conviction which rests on a mistaken identification is a gross miscarriage of justice. He also cites numerous Hlinois cases which in effect hold that where the entire record raises a reasonable doubt as to the identification of the defendant a guilty verdict will not be permitted to stand. In most of the cases cited, the defendant introduced an alibi defense which was corroborated by other witnesses. The defendant in the instant case did not produce any witnesses in support of his alibi although he testified that on that evening he met a girl with whom he worked, he went to a drugstore and to a pool hall. Later he stopped to get a hamburger and a shake. He next went to a tavern and there he was talking to the crowd. There he talked to a person wearing a long army coat who was called “Lonnie.” Thereafter he went to another lounge and there met another girl he knew. He remained there about one and one-half hours and next went to a laundromat where he sat for twenty or twenty-five minutes while he talked to one Evelyn. He then proceeded to another tavern where he had more to drink and danced. He danced with a girl who was with his friend, Robert Moore. When he left the tavern, he went to the Music Room at 50th and Cottage Grove Avenue. He got home about 2:30 to 3:00 in the morning. He produced none of the persons he purportedly met or knew in support of his alibi.

The evidence by the State was most convincing. The group of young men was seen as they crossed in front of the car in which the State’s witnesses were sitting. At that time the headlights of the automobile were on and the fluorescent street lights at the four corners of the intersection were on. There can be no doubt that defendant was seen as he crossed in front of the car by the car headlights. The view by Simmons and Macon at the time of the shooting was not obstructed. They were only a short distance from the defendant. The witness Simmons testified that he saw the defendant very clearly and was staring at the defendant.

In People v. Williams, 17 Ill2d 193, 201, 161 NE2d 295, the court said regarding an unsupported alibi:

“Without supporting evidence or testimony, the claim of alibi can be given little weight and its worth was dependent upon the credibility of defendant as a witness. In making such determination, it is proper to consider his interest and the extent to which he is corroborated or contradicted by other facts or circumstances in evidence.”

It is the province of the trial judge in the bench trial to decide the credibility of the witnesses and the weight to be given their testimony and his decision will not be reversed unless it is palpably erroneous. People v. Boney, 28 Ill2d 505, 192 NE2d 920.

The trial judge at the conclusion of the case said the following:

“The testimony showed that the defendant who was clearly identified without any question in the court’s mind, without cause shot this boy, and after taking the first shot stepped up further for two more shots.”

We agree with the statement of the trial judge that the evidence as to identification was clear and convincing and we conclude that the defendant’s guilt was established beyond a reasonable doubt.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: STOUDER, P. J.

text:
    Evergreen Savings and Loan Association, PlaintiffAppellee, v. Barbara A. Hirschman, a/k/a Barbara A. Frey, Individually, and Barbara A. Hirschman, as Trustee, and Edward Frey, Defendants-Appellants.
    Gen. No. 52,778.
    First District.
    May 16, 1969.

      Bedrava & Mulack, of Chicago (Donald G. Mulaek, of counsel), for appellants.
    Walter F. Kerrigan, of Chicago, for appellee.
   STOUDER, P. J.

On May 16,1967, Evergreen Savings and Loan Association, Plaintiff-Appellee, commenced this mortgage foreclosure action in the Circuit Court of Cook County. Several parties were named as defendants but only the Defendants-Appellants, Edward Frey and his wife Barbara Frey, the latter also being known as Isabelle Barbara Hirschman, claimed any interest in the premises. Defendants Freys filed an answer and counterclaim, the gist of the counterclaim being that the plaintiff and the co-defendants had conspired to defraud the Freys. Plaintiff moved to strike the counterclaim and after additional pleadings respecting the counterclaim the motion to strike was denied on September 18, 1967, and the plaintiff was directed to answer the counterclaim within 10 days. At the same time, hearing on the matter was set for October 2,1967. After hearing on October 2, decree of foreclosure and sale was entered from which decree defendants have appealed.

In 1962, Gudinas sold the premises in question to Demetriou. The Freys were the brokers in the sale and worked out the details. Demetriou financed the purchase by mortgage to Evergreen also second purchase money mortgage to Gudinas. In 1964, Demetriou conveyed the premises to the Freys by warranty deed reciting that it was subject to a first mortgage held by Evergreen and a second mortgage held by Gudinas. It appears that a default in payments was made in January, 1966, and as a consequence Evergreen allegedly unaware of the deed to the Freys, received a quitclaim deed from Demetriou in return for a hold harmless agreement in his favor. Forcible entry and detainer action instituted by Evergreen was successfully opposed by the Freys. In 1966, the Freys commenced an equitable action in the Circuit Court of Cook County against the same parties specified as defendants in the counterclaim filed in the instant case. Such proceeding, although described by defendants as a separate and distinct case, was likewise based on conspiracy and sought equitable relief and damages against the same parties arising from the same transaction. The record of the case filed in 1966, (Hirschman v. Evergreen, # 66 CH 3313) is not before us but the case is mentioned in the record and as we shall see has some bearing on the action of the trial judge.

When the case was called for hearing on the morning of October 2, 1967, defendants’ attorney orally requested a continuance asserting that additional time was needed to prepare his case. It was pointed out that the plaintiff’s answer to the counterclaim had only been filed on September 28 or only three days, which included a weekend, prior to the hearing. The trial judge denied the motion for a continuance and such ruling is assigned as reversible error.

There is no doubt that the manner of granting or denying continuances is within the discretion of the trial judge and his exercise of discretion will not be disturbed unless arbitrary, capricious or prejudicial. Krupinski v. Denison, 9 Ill App2d 155, 132 NE2d 451, and Coleman v. Toohey, 48 Ill App2d 75, 198 NE2d 580.

On first impression it would appear that defendants had three days in which to prepare for hearing after issues were joined. An examination of the record however reveals quite a different picture. Both the 1966 conspiracy case (Hirschman v. Evergreen, # 66 CH 3313) and the instant foreclosure action filed in 1967 (including conspiracy counterclaim) were assigned to the same trial judge. After defense counsel had urged that the three days were insufficient for trial preparation the judge in examining the files stated, “this is a 1965 case, isn’t it?”, he then noted that it was a 1966 case. It would appear at this point that the judge was referring to the earlier 1966 conspiracy case and that these cases were being considered together. Thereafter defense counsel reminded the trial court that a motion to consolidate “. . . the two actions that are before your Honor now, this morning” had been pending for nearly three months and no ruling had been made. The judge ordered consolidation although no written order was prepared and entered at the time. From the record in the instant case it does not appear that the motion for consolidation was filed in this case but apparently was filed in the prior conspiracy case. At any rate, it appears that the hearing on October 2, 1967, pertained not only to the instant case but to the prior conspiracy case. There is no indication in the record when issues were joined in the prior conspiracy case but it may be inferred in the absence of any contrary assertion in the record not only that the prior case had been at issue for some time but that preparations for trial of the prior case were equally applicable to the same issues in the second case. Defendants insist that the issues in the two cases are separate and distinct but it does not appear from the record or from their arguments that different evidence or legal theories were involved. Thus, where cases are consolidated because of their common issues it cannot be said that preparation time is inadequate when only one case is considered and the other ignored.

Furthermore, in view of what transpired at the hearing, we do not see how any prejudice resulted to defendants because of the refusal of the court to grant the delay. A lengthy discussion took place between court and counsel concerning foreclosure of the mortgage, settlement, amounts due, conduct of receiver and amounts to be credited on the mortgage obligation. A final figure concerning the balance due on the mortgage was agreed upon by the parties although defendant insisted that the amount was not due because they were entitled to damages resulting from the conspiracy. It appears that the defendants desired to have the damages assessed by a jury and to that end the court proposed that the matter of damages incident to the conspiracy, be heard by a common-law jury and for that purpose the case be assigned to the common-law division. The court then proceeded to vacate its order of consolidation and orally assigned the prior conspiracy case to the law division. Thus the practical result of the hearing was that the conspiracy issue was not determined by the trial court and consequently it cannot be said that defendants were prejudiced by failure to grant a delay with respect to an issue which in fact has not as yet been heard.

Lastly, defendants argue that the court committed reversible error in denying their petition for a change of venue based on the alleged prejudice of the trial judge. This petition was presented to and denied by the trial court on September 29, 1967. The petition asserted that circumstances relating to the alleged prejudice of the judge had first come to their attention on September 25,1967. Chapter 146, § 1, Ill Rev Stats 1967, provides for change of venue based on prejudice of the judge. If a verified petition in accord with the provisions of such statute is timely filed, the court is required to grant the change of venue. Talbott v. Stanton, 327 Ill App 491, 64 NE2d 388. For such a petition to be timely filed it must be presented to the court before the court has ruled on substantive issues in the case. Russell v. Russell, 333 Ill App 68, 77 NE2d 328, and Sticker v. McCarthy, 64 Ill App2d 1, 212 NE2d 723. The basis for this rule is that a party ought not to be permitted to probe or ascertain the attitude or view of the trial judge on the merits of the case and then, if not in accord with the party’s expectation, seek to have the issues determined by another judge. Russell v. Russell, supra, and People v. Chambers, 9 Ill2d 83, 136 NE2d 812.

In the instant case the trial court had ruled on plaintiff’s motion to dismiss the counterclaim. The denial of such motion was a decision on a substantive issue in the case. Booth v. Metropolitan Sanitary Dist. of Greater Chicago, 79 Ill App2d 310, 224 NE2d 591, and Swanson v. Randall, 30 Ill2d 194, 195 NE2d 656.

Defendants argue that their petition for change of venue was timely filed because the prior ruling of the judge even though on a substantive issue, was in their favor. We find no requirement in any of the cases called to our attention that the timeliness of the filing of a petition for change of venue depends on whether prior rulings are favorable or adverse to the party seeking the change nor do reason and logic suggest any such distinction. The predisposition or inclination of the judge may be equally discernible whether the ruling be adverse or favorable. In City of Chicago v. Hamlin, 24 Ill2d 148, 180 NE2d 473, it appears that there was a preliminary contested issue as to the proper valuation date in a condemnation proceeding. The determination of the date even though favorable to defendant, was held to be the determination of a substantive issue thereby rendering a subsequently filed petition for change of venue untimely filed.

Accordingly we believe the trial court properly denied the petition for change of venue because it was not filed in apt time.

For the foregoing reasons the decree of the Circuit Court of Cook County is affirmed.

Decree affirmed.

ALLOY and RYAN, JJ., concur.


text:
    Alice Zielinski, Plaintiff-Appellant, v. Goldblatt Bros., Inc., a Corporation, Defendant-Appellee.
    Gen. No. 52,978.
    First District.
    May 16, 1969.

      Sudak & Grubman, and Maxfield Weisbrod, of Chicago, for appellant.
    Richard C. Conklin and Thomas W. Dempsey, of Lord, Bissell & Brook, of Chicago (Joseph Samuels, of counsel) , for appellee.
   STOUDER, P. J.

Plaintiff-Appellant, Alice Zielinski, commenced this action in the Circuit Court of Cook County seeking to recover damages for personal injury based on the alleged negligence of Defendant-Appellee, Goldblatt Bros., Inc. The jury returned a verdict in favor of plaintiff for $8,500 upon which judgment was entered. Plaintiff moved in her post-trial motion for a new trial on the issue of damages only, alleging the award inadequate. Such motion was denied and plaintiff has appealed. No cross appeal has been filed.

This action arises out of an incident occurring on February 26, 1961, when the plaintiff fell on the premises of defendant. The details of the incident are not material to this opinion. It is sufficient to say that the issues relating to negligence, i. e., defendant’s failure to provide safe ingress and egress to the premises, inadequate lighting, and lack of guards or other supervisory personnel as well as plaintiff’s contributory negligence, were vigorously contested issues. Medical testimony was presented by plaintiff concerning the nature and extent of an injury to her foot resulting from the fall. Evidence was also introduced of medical and hospital expenses, loss of wages from unemployment and other expenses, both past and future.

In seeking to reverse the judgment of the trial court, plaintiff argues she is entitled to a new trial on the issue of damages only because the damages awarded by the jury were demonstrably inadequate. As a procedural matter it should be noted that no question is raised on this appeal concerning the granting or denying of a new trial generally. Plaintiff has limited her appeal to the narrower issue of entitlement to a new trial on the sole issue of damages.

It is well settled that new trials may be granted where the jury has awarded inadequate damages. Kilmer v. Parrish, 144 Ill App 270. An inadequate award may indicate the jury erred in following the instructions on damage. Browder v. Beckman, 275 Ill App 193. It is also well settled that in a proper case inadequate damages may be the basis of awarding a new trial on the issue of damages only. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275. Where no error is claimed in the instructions or in the admission or exclusion of evidence, it is axiomatic that courts are and should be reluctant to disturb jury verdicts, the assessment of damages being peculiarly within the jury’s province.

Plaintiff insists that the verdict in the instant case was inadequate and argues the verdict for $8,500 is substantially less than the undisputed special damages or plaintiff’s out-of-pocket loss of $15,575. Since plaintiff’s conclusion of inadequacy depends upon her characterization of the evidence as undisputed, which characterization is denied by defendant, a summary of the evidence relating to damages is required.

After plaintiff was injured on February 26, 1961, she was hospitalized for twelve days during which time certain bones of her foot were pinned and her foot was encased in a cast. After the cast had been removed, she was told by her physician in August, 1961, (22 weeks after injury) that she was able to return to work. Her medical and hospital expenses totaled $994 and her loss of wages for the 22 weeks amounted to $1,522. No question is raised by the evidence concerning the reasonableness or the amounts of the aforementioned items and these items may be characterized as undisputed.

With respect to plaintiff’s additional claim for loss of wages for a period of 35 weeks, it appears from the record that although plaintiff was able to return to work after the first week in August, 1961, she did not do so until September 17, 1961. Plaintiff claims that her failure to work during this period was the result of her injury but the evidence also shows that the employer for whom she had worked at the time of her injury had moved from the area in which plaintiff lived and it does not appear that she sought to resume her employment with such employer. Plaintiff commenced work for the G-M Laboratories on September 17, 1961 (purportedly on a 90-day probationary period) and worked for this company until November 17,1961. Plaintiff claimed that her termination of employment with this company was on account of her injury but it also appears that this company moved out of the area in which plaintiff lived. Nearly 5% months later on May 8, 1962, plaintiff commenced working for the Stewart Warner Company at its plant near where she lived and her employment with such company continued from that time until the time of trial, nearly 5% years. During the period between November, 1961, and May, 1962, plaintiff had applied for unemployment compensation. In her itemization of wages lost she included three weeks during the 5%-year period of her present employment, describing the reason therefor as “bad weather.” Based on the foregoing, plaintiff’s itemization of special damages included an additional 35 weeks for lost wages in the amount of $2,422.

Prior to examinations conducted by her physicians preceding the trial, plaintiff had last seen a physician in January, 1962. In the intervening period of nearly 5% years, it does not appear from the record that plaintiff has seen any physician concerning her condition or concerning any ill health. During this period she testified to the purchase of shoes, insoles, house slippers, Dermassage, Empirin and elastic bandages, the cost of which she testified was $211 per year. Based on her life expectancy of 28.3 years, her itemization of special damages extrapolated such item to $5,971.

Plaintiff’s treating physician, who last saw plaintiff in January, 1962, testified that at the time plaintiff’s recovery had been good. However, when he reexamined plaintiff nearly 5% years later, he was surprised to find the foot deformed and diagnosed the condition as primarily traumatic arthritis. Medical testimony indicated that there was an operation which might relieve the condition, the cost and expense related thereto being estimated at $2,500.

The foregoing evidence of damage was properly submitted to the jury and tended to prove plaintiff’s claim therefor. However, it does not have that certainty from which all reasonable minds would conclude that the amounts claimed were reasonable or that they were related to the injury sustained. There appears to be no particular dispute concerning the periods of plaintiff’s unemployment after August, 1961, but it may be reasonably inferred from plaintiff’s own testimony that her lack of employment may have been due to causes other than her injury. The expenses claimed for shoes, etc. totaling $5,971, is likewise subject to conflicting inferences. The amounts which are at best estimates, do not necessarily represent expenses solely attributable to the injury. To extend an estimated annual expense not clearly related to her injury, may have been viewed with substantial reservation by the jury, a reservation which is clearly not unreasonable. The last item related to future medical expenses is also not clearly established by the evidence. There is no indication that the plaintiff intended or expected to undergo the operation and her unexplained failure to secure medical advice for nearly 5% years before the trial could have influenced the jury. In addition, it should be noted that the medical testimony, based on the pretrial examination, indicated that plaintiff’s condition was to some extent related to a condition of flat feet existing prior to the injury.

In summary, the evidence relating to special damages, pain, suffering and permanency of injury, is susceptible of widely varying inferences. Haleem v. Onate, 71 Ill App2d 457, 219 NE2d 94. Such evidence viewed most favorably to plaintiff, would have supported a substantially larger verdict. Viewed most favorably to the defendant such evidence amply supports the verdict of the jury and accordingly such verdict is not demonstrably inadequate.

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

Judgment affirmed.

ALLOY and RYAN, JJ., concur.


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    North Federal Savings & Loan Association, a Corporation of the U. S. A., Plaintiff-Appellee, v. Richard A. Tokoph and Margaret Tokoph, et al., Defendants-Appellants.
    Gen. No. 53,269.
    First District.
    May 16, 1969.
    Harold A. Liebenson, Edward G. Raszus, and Meyer M. Gilbert, of Chicago, for appellants.
    Eley & Rusher, of Chicago (Lommen D. Eley, of counsel) , for appellee.
   STOUDER, P. J.

On August 16, 1966, North Federal Savings & Loan Association, Plaintiff-Appellee, commenced this mortgage foreclosure action in the Circuit Court of Cook County, seeking foreclosure of several parcels of land in Chicago in which Richard Tokoph and Margaret Tokoph, Defendants-Appellants, owned the beneficial interest.

The defendants filed their appearance but did not answer the complaint. Pursuant to due notice, a decree of foreclosure and sale was entered on December 14, 1966, by default. Within 30 days defendants moved to vacate the foreclosure decree which motion was denied on March 19, 1968, and it is from the denial of such motion that this appeal follows.

The substance of the motion to vacate is that foreclosure was improperly decreed because the parties had agreed to a transfer of the properties in lieu of foreclosure. From the affidavits, documentary exhibits and testimony it appears that prior to the entry of the foreclosure decree, Meyer Gilbert, attorney for defendants, and Robert Rusher, attorney for plaintiff, (also a member of plaintiff’s Board), negotiated for a transfer of the properties in lieu of foreclosure. It is undisputed that Rusher by letter, offered to accept transfer of the properties in lieu of foreclosure with defendants being released from personal liability on their obligation secured by the mortgages. According to Gilbert, this offer was accepted by his letter of December 12, 1966, but according to Rusher the offer was rejected by Gilbert’s letter of December 3,1966, offering to accept as additional consideration $3,000. The dispute in the evidence deals mainly with whether the December 3 letter was a counterproposal or not. The Chancellor concluded that defendants had made a counterproposal, which constituted a rejection of plaintiff’s offer, thereby terminating such offer and precluding its later acceptance. This counter-proposal was not accepted by plaintiff.

In their appeal defendants raise no question of the propriety of the Chancellor’s order so far as the merits of the case are concerned. Rather, defendants argue, the Chancellor erred in denying their motion for a continuance, thus preventing them from fully presenting their evidence.

The testimony of Rusher as an adverse witness was presented at hearings on April 17, 1967, August 14, 1967, and January 8, 1968. Gilbert also testified on January 8. Between January, 1967, and January 8, 1968, defendants’ counsel had requested and secured numerous continuances. On January 8, 1968, hearing was continued until the afternoons of March 18 and 19, 1968, these dates being preferred by Gilbert in preference to earlier dates suggested by the Chancellor in order that the dates not conflict with Gilbert’s vacation. During these hearings defendants were represented by Philip Aimen, an associate of Gilbert’s.

On March 14,1968, defendants’ counsel gave due notice that on the morning of March 18, 1968, he would request a continuance. Plaintiff’s counsel also served notice that he would oppose such motion and request that the hearing proceed. On the morning of March 18, the Chancellor considered the motion, supporting affidavit of Aimen and a letter and telegram from Gilbert to Aimen. Aimen’s affidavit indicated that Gilbert was unavailable because on vacation. The telegram dated March 3, 1968, indicated that on the advice of his doctor he would not return until March 25. The letter dated March 13, 1968, referred to “circumstances beyond my control” and requested that Aimen secure a continuance until April. Plaintiff opposed the granting of the continuance and the motion, therefore, was denied and it is the order denying such continuance which defendants claim constitutes reversible error.

At the hearing on the afternoon of March 18, 1968, the testimony of Richard Tokoph was presented. After arguments of counsel were heard, the court denied defendants’ motion to vacate the foreclosure decree.

Defendants argue that in a mortgage foreclosure proceeding they should have been given full opportunity to present all necessary evidence as a safeguard and protection from the harsh consequences of foreclosure action. More particularly, defendants argue that because they were not afforded an opportunity to present further testimony of Gilbert the action of the Chancellor was unreasonable, arbitrary and prejudicial. Thus the only question before us is the propriety of the Chancellor’s order denying defendants’ request for a continuance.

Present Supreme Court Rule 231 (former rule 14) dealing with motions for continuances, provides “(a) Absence of Material Evidence. If either party applied for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured, (b) When Continuance Will be Denied. If the court is satisfied that the evidence would not be material, or if the other party will admit the affidavit in evidence as proof only of what the absent witness would testify to if present, the continuance shall be denied unless the court, for the furtherance of justice, shall consider a continuance necessary.”

Defendants admit that their motion for continuance and affidavit do not comply with Rule 231(a). Specifically, the affidavit contains no indication of any facts to which the absent witness would testify. Defendants seek to avoid the consequences of this infirmity by insisting first, that the procedure, being equitable, stringent rules are not necessarily applicable and second, the rule should not be applied if injustice will result.

We are unaware of any authority and defendants have called none to our attention, suggesting that the basis for granting a continuance is not any different in an equitable proceeding than in one at law. No distinction appears in Rule 231. The expeditious resolution of disputes is common to all judicial proceedings and we perceive no reason why the rules relating thereto are not equally applicable to equitable proceedings and proceedings at law.

There is no doubt but that an orderly judicial system requires flexibility atune to the complexities of the problems which it is designed to serve. Rule 231 (a) and (b) recognizes that the unavailability of evidence is one of those circumstances which may be beyond the control of the parties or their counsel and a delay may be required to afford a fair trial to the parties. Such rule also recognizes, by necessary implication, that delay may be unfair to the opposing party. The purpose of the rule is to avoid prejudice or unfairness to either party and the requirements of the rule are designed to provide an appropriate basis for the exercise of the trial court’s discretion. The unavailability of a prospective witness even though due to excusable cause such as illness, need not and should not be an appropriate reason for delay. It must also appear that the prospective witness’s testimony would be material to the issues involved. Otherwise the only conclusion warranted would be that delay is being sought for its own sake and not to avoid prejudice. In Coleman v. Toohey, 48 Ill App2d 75, 198 NE2d 580, the court discusses and cites other Illinois cases dealing with the problem of delay and affirmed the denial of a continuance which resulted in the dismissal of a cause of action for want of prosecution. See also, Debolt v. Wallace, 56 Ill App2d 380, 206 NE2d 469, where on the final day of trial, defense counsel orally moved for a continuance to the next day for the purpose of securing the testimony of an orthopedic surgeon. The court, in affirming the denial of such motion, concluded that if no written motion and affidavit were filed there could be no abuse of discretion.

In the instant case, the motion and supporting documents fail to show the materiality of Gilbert’s further testimony, thereby warranting the exercise of the trial court’s discretion. Furthermore, the record fails to demonstrate that any prejudice in fact occurred. Hearings had extended over a period of nearly fourteen months from the date issues were joined. Defendants’ counsel had sought and secured numerous continuances. Yet the issues involved only the testimony of three persons, two of whom were attorneys. Gilbert had previously testified, and from the record it would appear that his testimony included all of the facts covered in his affidavit. When the hearing resumed on the afternoon of March 18, 1968, the court stated, “Well, the movant’s witness, Mr. Gilbert, had been on the stand on direct examination at the last hearing, and, as I understood, counsel had concluded his direct examination and you were to proceed with the cross examination of Mr. Gilbert today.” This “understanding” of the court was not directly contradicted by Aimen and even at this late stage in the proceeding, defendants’ counsel made no effort to show either by way of argument, offer of proof or otherwise, any additional facts to which Gilbert could or would have testified. Under the circumstances, we conclude that no error was committed when the court denied defendants’ motion for continuance.

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

Judgment affirmed.

ALLOY and RYAN, JJ., concur.