author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Bravos, et al., Defendants-Appellants.
    Gen. No. 52,545.
    First District, Second Division.
    September 9, 1969.
    Rehearing denied October 7, 1969.

      Bellows, Bellows & Magidson, Frank G. Whalen, Harry J. Busch, and Michael Brodkin, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissaae, James B. Haddad, James R. Kavanaugh, and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendants, George Bravos, Joseph Lombardi, Sam Mercurio and William Messino, were tried jointly before a jury. A five-count indictment had been returned, Count I of which charged that the four codefendants (and two others subsequently acquitted) conspired in agreeing to intimidate Jack, George and Albert Chiagouris by threatening to inflict unlawful physical harm with the intent to cause them to pay money to George Bravos, Joseph Lombardi, William Messino and Sander Caravello.

Count II charged that the defendants and one Alice Erwin (subsequently acquitted) committed the offense of aggravated kidnapping on May 7, 1965, by confining Jack Chiagouris against his will for the purpose of obtaining a thing of value.

Count III charged the same five defendants (again Alice Erwin was acquitted) with the same offense as alleged in Count II, except for the charge that George Chiagouris was the person kidnapped.

Counts IV and V charged that Bravos, Lombardi and Messino committed the offense of aggravated battery on George Chiagouris (Count IV) and on Jack Chiagouris (Count V).

Judgments of acquittal were ordered as to defendants Erwin and Caravello, but guilty verdicts were returned as to the other four, finding Bravos, Lombardi and Messino guilty on all counts, and Mercurio guilty only on Count I (conspiracy). The court imposed the following sentences: Bravos, 5 to 20 years in the Illinois State Penitentiary on each of the kidnapping counts, 1 to 10 years on each of the battery counts, 6 months in the County Jail on the conspiracy count; Lombardi, 7 to 20 years on each of the kidnapping counts, 1 to 10 years for the battery on George Chiagouris and 5 to 10 years for the battery on Jack Chiagouris, 6 months in the County Jail for conspiracy; Messino, 10 to 30 years on each of the kidnapping counts, 1 to 10 years for the battery on George and 5 to 10 years for the battery on Jack Chiagouris, 6 months in the County Jail for conspiracy; Mercurio, 5 years probation, conditioned upon incarceration for 30 days in the County Jail for conspiracy.

On appeal the defendants raise the following points:

1) The defendants were denied a fair trial by the jury because the jury’s verdict was coerced.
2) The defendants were denied a fair trial and were denied their rights of confrontation and cross-examination because the trial court refused to grant their motions for severances. These motions include all defendants except Lombardi.
3) The trial court permitted self-serving exhibits to be introduced into evidence, which constituted error.
4) The trial court admitted into evidence material regarding transactions between the brothers and Caravello which was not relevant to the issues at trial.
5) The trial court admitted into evidence material of an independent and irrelevant surveillance of defendants.
6) The court allowed the prosecutor to disclose to the jury in his opening statement that Messino had attempted to evade apprehension by police officers and that such contention could not be proved.
7) Certain remarks made by the prosecutor prejudiced defendants and deprived them of a fair trial.

On June 23, 1964, Albert, Jack and George Chiagouris, brothers and copartners in a construction firm, negotiated a loan for $50,000 from defendant Messino. Arrangements for the loan were completed in the office of Sander Caravello, at which time there were present Caravello, Messino, Bravos, and the Chiagouris brothers. Messino set the interest rate at 40 per cent and made a requirement that the $70,000 was to be repaid in 47 weekly installments of $1,500 each for 46 weeks, and $1,000 the last week. When Albert Chiagouris asked what kind of collateral would be required, Bravos said, “The only security we want is your eyeballs.”

Two days later the brothers returned to Caravello’s office to receive the $50,000 and to execute judgment notes for the installment notes. Lombardi was present and the brothers were informed that he would receive the weekly payments in case Messino was not available when they were made.

Caravello had vouched for the brothers and he received a week’s loan of $15,000 of the $50,000 from the Chiagourises, which arrangement was unknown to Messino. On July 28,1964, the three brothers again met with Messino, Bravos and Caravello to borrow an additional $100,000, with the agreement that the amount, plus $30,000 interest was to be repaid within 105 days. After this transaction was completed on July 31, Messino left, and Caravello was given $25,000 of the proceeds as another loan. He signed a note for that amount and agreed to pay it back to the Chiagouris brothers plus a pro rata share of the interest the brothers would have to pay on their loan.

Defendants’ counsel point out that the brothers’ partnership statement dated November 1964, purporting to enumerate their assets and liabilities of that date, showed figures which did not reflect the alleged loans. They had missed making the $1,500 payment due on October 9, 1964, and on October 10, Jack and George Chiagouris met Messino in the Bee Gee Builders parking lot. Both brothers testified that Messino jumped from his car screaming obscenities at them and struck Jack in the face. George explained that they had the $1,500 and Messino told them it would cost them an additional $1,000 for each day payments were late..

In November 1964, the brothers met with defendant Sam Mercurio and explained that they were finding repayments difficult because of the $40,000 they had loaned Caravello. Mercurio promised to try to help them obtain refinancing. The brothers’ attorney testified to this meeting, although neither Jack nor Albert could recall whether he was present at the time.

On November 13, 1964, the expiration date of the 105 days in which the loan of $100,000 with interest was to be paid, the three brothers met Messino in a cocktail lounge. Lombardi and Bravos were also present, and when Albert informed them that they did not have the required payment, Messino told Bravos that the brothers had given Caravello $40,000 of the $150,000 loan. He then asked Bravos’ permission “to take these fellows out and put a bullet in their head.” After it was announced that a further penalty would be exacted for failure to meet payment deadlines, Caravello was brought to the table. He admitted receiving the $40,000, at which point Messino hit him in the face, kneed him, knocked off his glasses and scratched his forehead. Messino then said, “We’re going to have something to eat and after we eat we’re going to go for a ride, and the treatment you just got now you’re going to get every five minutes along the way.”

The brothers later learned that Caravello had been given a “pass.” They continued to make their payments through January of 1965, but on February 20, they met Lombardi at the Oriental Gardens Restaurant and told him they did not have the money for the installment due; that a loan had been arranged with a bank. Lombardi called Messino in Florida and when Messino spoke with George he asked if he wanted him to “fly out to Chicago to get this thing straightened out.”

The brothers continued the payments with difficulty, and in March 1965, when two of them went to the Bonfire Restaurant to keep an appointment with Messino they were met in the parking lot by Bravos and Messino. When they said they could not yet pay the $100,000, Bravos said, “I am going to choke you until your tongue hangs out because you guys are fooling around,” and Messino shook his fist at Jack Chiagouris while demanding the money.

After the notes for the first loan and its interest had been fulfilled Messino returned them to the brothers. Although partially destroyed, fragments of the notes were admitted into evidence, as well as a piece of paper on which Messino had refigured the $100,000 loan in April. From that point on it was the loan of $100,000 which served as the source of trouble.

On May 7, 1965, the brothers were to meet Bravos, Messino and Lombardi at the Wow Restaurant (Bonfire), and one of the brothers called Messino at about 7:30 p. m., to tell him that the meeting would be futile since they did not have the money for the payment. Messino said, “Either you tell me where you’re at, and if I have ' to come out and get you, you’ll get hurt. If you meet me the way you’re supposed to meet me over here, everything will be all right.” George and Jack went to the restaurant at about 10:30 p. m., and met Messino in a picnic area near the building. He asked where their brother Albert was and when they said he was out of town Messino grabbed them both by their ties and lifted them. He struck Jack in the face with his fist, then he struck George, kicked him, and kicked Jack on his side, then kicked George again, all the time demanding in profane language to know where Albert could be found. Lombardi knocked George’s hands down and also struck Jack in the face at Messino’s direction.

George was then taken to a telephone booth to call Albert and he told Lombardi that his brother was in Boston; he tried to whisper this same statement to Jack, but was prevented, and Jack told them that Albert was in some other city. At this point Messino struck Jack in the face, and Jack was taken to a telephone to call his brother, but fainted before he could do so. He was then dragged back to the restaurant where he and George were told they would not be let loose until they came up with something to secure the loan. George told them they had a trust valued at $140,000 which they would pledge as security, although there were two prior assignments on the beneficial interest. Bravos told them they wanted the assignment and that it should be made to defendant Mercurio. Mercurio arrived at the picnic area sometime around midnight and Bravos told him the beneficial interest in the Chiagouris brothers’ trust was to be assigned over to him. Both brothers said that at the time of this meeting they were visibly beaten. Mercurio left after telling them he would try to contact Albert to make arrangements for the assignment the next day.

Concerning the events at the restaurant picnic area, the defendants, Lombardi and Mercurio, admitted their presence there as well as that of defendants Bravos and Messino; they testified, however, that it was a chance meeting, and Lombardi had not come with Messino, but with an old friend, and that Mercurio had only stopped in to get something to eat. Both Mercurio and Lombardi said they had gone to the Chiagouris table and that Jack and George were not beaten.

Albert Chiagouris testified that he contacted Mercurio around midnight on that date, trying to locate his brothers, and that he was told Mercurio had just left them with Bravos and the “little guy” (Messino). Albert was told that his brothers had been “slapped around a little bit” and when he asked how bad it was, Mercurio said, “They got slapped around.” Mercurio then told Albert of the proposed assignment, explaining that Bravos and Messino wanted security for the loan. Albert was told he could not reach his brothers and he said, “Now, what they are doing now, they are holding my brothers for ransom,” to which Mercurio replied, “Use your own deduction.” Albert called Mercurio back in about 20 minutes to see if he had heard from his brothers; Mercurio said he hadn’t and probably would not until later in the day, and that Albert should call him the next morning, even though Albert insisted he would not make any assignment without talking with his brothers.

That same evening George had asked Messino to let him go home, but Messino refused, and drove the two brothers, with Bravos and Lombardi, to a cocktail lounge where Alice Erwin joined them. Two calls were made to try to contact Albert; instead, George managed to reach a fourth brother, Richard, and told him to get in touch with Albert regarding the trust. Lombardi testified that he saw the brothers at the lounge but denied being a part of the group, while George said Lombardi gave him instructions during his conversation with Richard, telling him what to say and when to hang up. Lombardi soon left with Alice Erwin, and Bravos then left with Messino and the two brothers, driving to the Wow Restaurant parking lot, where the brothers again asked to go home. Messino refused their request, took their car keys and drove to Alice Erwin’s apartment, where they stayed until about 4:00 a. m. They then drove around for half an hour and George asked to be allowed to go home, but Messino replied, “No, we’ll go some place else.” They went to Messino’s home and were taken to the basement.

At about 10:30 a. m., on May 8, Messino told the brothers they could go on their own and that they should meet at Mercurio’s office later in the morning. They drove to Mercurio’s office and George said he felt "pretty lousy. Jack’s got a broken jaw, he can’t even open his mouth.” According to George, Mercurio said, “They are a bunch of animals.”

The meeting at the bank was set for 12:30. George testified that when they arrived at the bank they were all disheveled. He said, “I hadn’t shaved, my clothes were wrinkled, my false tooth . . . was broken, my face was swollen, I couldn’t breathe too well and I couldn’t sit up straight.” George said that Jack was also unshaven, “his clothes were all wrinkled, he was bent over, he couldn’t open his mouth and the whole left side of his face was swollen. He was just about white as a sheet.”

The brothers and Mercurio met a Mr. Andringa in the trust department of the bank and Albert joined them. Albert’s testimony substantiates the physical condition of George and Jack as testified to by them. Although Mr. Andringa did not recall that the brothers appeared beaten up, he also did not recall seeing Mercurio on that date. The beneficial interest in the trust was conveyed to Mercurio through an instrument bearing the signatures of the three brothers and Mercurio. Mercurio explained the assignment by saying it was intended to secure a $13,000 loan which he had arranged for the brothers with the River Forest Bank, by which circuitous method the brothers would divest themselves of title to the $130,000 trust so that their creditors would leave them alone, and Mercurio would hold that interest while the brothers worked out some arrangement to repay the $13,000.

New notes of debt were drawn up showing a balance due of $124,000, and a schedule of payments was agreed upon. After a series of repayments the brothers went to the Illinois Crime Commission on July 28, 1965, and agent Robert Walker was assigned to the case posing as George’s brother-in-law. Subsequent payments were made with money given the brothers by the Illinois Crime Commission, and during one of the payments Walker had occasion to talk with Lombardi. At the trial, on cross-examination Lombardi denied that Walker had told him he was worried about George’s getting his jaw broken as Jack had done. Lombardi further denied that Walker had asked him why he had to be so rough on Jack, and denied saying that it was only a broken jaw and could have been worse. He denied having told Walker that he had his methods of collecting money and that Jack and George had been slapped around by him.

Prior to the previous cross-examination the State disclosed at trial that Lombardi had made an oral statement to an agent, and successfully moved to expunge an earlier order directing the State to furnish defense counsel with “copies of any written or oral statements in each cause.” Counsel for Bravos, Messino and Mercurio moved for a mistrial, a severance from Lombardi, and for a severance of the conspiracy count from the substantive counts of the indictment. The motions were denied. The State then assured the court that Lombardi’s confession would not be used. After objections to the foregoing cross-examination were overruled the defense counsel renewed their motions for severance of parties and counts, which motions were denied.

Walker was then permitted to testify in rebuttal regarding the conversation with Lombardi and was cautioned to mention no names Lombardi might have used. He testified that Lombardi had told him he had been involved in the beating of Jack and George, and that he had said “they had certain ways to collect and they didn’t deviate from those methods.” According to Walker, Lombardi had also said, “Well, it was only a broken jaw, it could have been a lot worse.” At the conclusion of Walker’s testimony the court admonished the jury that the evidence was to be considered “for the limited purpose of having you decide whether or not Joseph Lombardi has made out of court statements inconsistent with his testimony.” The jury was further instructed that Walker’s testimony “should not be considered for the purpose of establishing the truth of the facts related in the alleged conversation,” and that it was “offered for impeachment purposes only.”

Robert Potter, of the U. S. Treasury Department, testified that on June 11, 1965, Messino and Mercurio met at the Wow Restaurant with Caravello. After his testimony the jury was instructed to draw no inference “whatsoever that these defendants were the subject of any inquiry or investigation by this witness, his business having been some sort of law enforcement officer.”

Counsel for Messino alleges that he moved the court limit the prosecutor’s opening statement to exclude mention of the alleged flight by Messino at the time of his attempted arrest on August 17, 1965. This motion is not mentioned in the report of proceedings; however, four defense counsel submitted affidavits that such a motion had been made. Two assistant state’s attorneys filed counteraffidavits in which they set out that no such motion had been made. The court said it could not recall whether or not such a motion had been made.

In his opening statement an assistant state’s attorney told the jury that Messino had fled agents of the Illinois Crime Commission when they attempted to apprehend him. During the trial the court sustained an objection to and struck proffered testimony that Messino ran from agent Walker during an attempted arrest.

The case was given to the jury at about 6:00 p. m. on Friday, January 20, 1967; their deliberations ceased at 2:00 a. m. on Saturday and did not resume until 10:00 a. m. One hour later the foreman advised the court that the jury was “completely deadlocked, eleven and one. We are no further than we were last night at midnight, no further along, and there’s nothing we can do about it. The party just don’t believe the case was proven. We sat and talked, and that’s it.” The court then instructed the jury to retire. At that point counsel for defendants moved for a mistrial on the ground that further deliberations would prove coercive on the juror who felt the case had not been proved. The motion was denied. Six hours later the verdicts were returned.

At the beginning of this opinion it is necessary to- note that the trial of the case took place over a period of approximately nine weeks. It should be further noted that there were four defendants and thirty-six verdict forms given to the jury. The record filed in this court has 3916 pages and the abstract has 534.

In their brief the defendants make no point that they were not found guilty beyond a reasonable doubt. In the brief filed by the State the following appears:

“The defendants make no claim that they were not proved guilty beyond all reasonable doubt of these crimes. The overwhelming nature of the evidence against the defendants, much of which is uncontradicted, coupled with the tales of incredible coincidences told by defendants Lombardi and Mercurio to cast an innocent light upon their conduct, leaves the defendants no choice but to concede guilt and to pray for a new trial based on purported errors in the lengthy proceedings below.”

In their reply brief the defendants make the following statement:

“To imply, however, that the defendants concede guilt is beyond impropriety. If defendants do not question the sufficiency of the evidence, it is only out of respect for the Supreme Court’s repeated admonitions to the Bar that the Court does not sit to weigh the credibility of witnesses or to determine where the truth lies in any given set of facts. See e. g., People v. Woods, 26 Ill2d 582. That there was a credibility question presented to the jury in this case cannot be denied. But, if defendants concede anything, it is only that this question begins and ends with the jury, and that this Court will not — nor should it — sit in judgment on the jury’s choice of alternatives. See People v. Horodecki, 15 Ill2d 130.”

In People v. Horodecki, 15 Ill2d 130, 154 NE2d 67, the court lays down the rule so often stated in Illinois courts that it hardly requires any citation of authority. At page 135 the court said:

“It was for the jury to weigh the testimony and determine the credibility of the several witnesses. [Citing cases.] There was ample evidence from which the jury could conclude that the defendant was one of the participants in the robbery.”

In the instant case it is apparent from the record that the evidence introduced, if believed by the trier of fact, was sufficient to convict the defendants beyond a reasonable doubt; consequently, the only questions to be presented to this court are those raised by the defendants with reference to the conduct of the trial.

1. The first question is whether the court properly ordered the jury to retire after their statement to the court concerning their difficulty in arriving at a verdict. Defendants’ theory is that by sending the jury back to deliberate, under the circumstances, the court in effect gave an unspoken instruction to the jury to find the defendants guilty. Defendants rely upon Brasfield v. United States, 272 US 448, in which case the court held that reversible error was committed when a trial judge inquired as to the numerical division of a jury which was unable to agree, and the Supreme Court concluded that the “general tendency” of such practice was “coercive.”

In the instant case we must again point out that the trial before us on review lasted almost nine weeks; that there are four defendants, each represented by different counsel; and that thirty-six verdict forms had been submitted for the jury’s consideration. In oral argument in this court the defense counsel asserted that the issues at .trial were relatively simple. Even if that could be assumed to be true, there was a vast amount of material presented to the jury, and a conscientious attempt to weigh the evidence would justify extensive deliberation. The jury was given the case at 6:00 p. m. on January 20, and the complained-of order of the trial court came after the jury had deliberated approximately eight hours.

The jury was called into court three times on the evening of January 20, retired for sleep at 2:00 a. m., resumed deliberations at 10:00 a. m. on January 21, and the foreman made his comments to the court at 11:00 a. m. that same date. The jury continued its deliberations for five and one half hours, allowing a reasonable time for lunch, before reaching a verdict. That a decision was not immediately forthcoming after deliberations were resumed tends to detract substantially from the argument that the decision was coerced by the trial judge. Defendants are not entitled to relief simply because a juror is ultimately persuaded to join in the decision. Furthermore, the jury did not return verdicts against all the defendants on all the counts. Defendant Mercurio was found guilty only on Count I. Again, this does not indicate that the jury had been coerced by the trial judge into blanket findings. Rather, it suggests a jury which carefully considered the evidence and reached its decisions on the basis of its own determination.

Whether or not a jury should be discharged is a matter which rests in the sound discretion of the trial court, and its judgment in this regard will not be disturbed unless this discretion is shown to have been clearly abused. People v. Daily, 41 Ill2d 116, 242 NE2d 170; People v. Mays, 23 Ill2d 520, 179 NE2d 654. In Daily, after six and one half hours of deliberation the foreman advised the court that the jurors had not reached an agreement and the judge recommitted them to further deliberations. Shortly thereafter the jury returned a guilty verdict. In holding that the jury verdict was not coerced by the trial court the Supreme Court noted that the presentation of the case had taken four days, with thirty-one witnesses presenting conflicting evidence, and that it “cannot be realistically argued that the trial court coerced the jury into returning a verdict.”

The present case lasted nearly nine weeks and included the testimony of 23 witnesses, with more than 20 exhibits. On the basis of this record we cannot say that the trial court abused its discretion by allowing the jury to continue deliberations after they had met for approximately eight hours. Brasfield v. United States, supra, does not indicate that a different result would be proper. There the trial court asked the jury to tell its numerical split, and when informed of the division the court instructed the jury to continue deliberations. The Supreme Court held that “the inquiry itself” necessitated a reversal of the conviction.

The practice of trial judges questioning juries with reference to their numerical division has been earlier condemned in Burton v. United States, 196 US 283. However, these cases condemn the active intrusion of the trial court into the jury’s deliberation process. The case before us involves no such intrusion since the information given to the court was unsolicited and the court was exercising its sound discretion.

2. The defendants argue that they were denied the right of confrontation and cross-examination by reason of the trial court’s refusal to allow their motions for severances of persons and counts. They state that Lombardi’s testimony tended to incriminate the other defendants. On August 7, 1965, Lombardi made certain self-incriminating statements to agent Walker which statements also incriminated the other defendants by inference. Lombardi told Walker that he had been involved in the beatings and that “others” had the responsibility for determining the manner in which the loans were to be paid off; that “they” had ways of collecting. Defendants argue that Lombardi’s statements amounted to an accusation of his codefendants of the crimes for which they were being tried.

The defendants further argue that, assuming there had been a severance, Lombardi’s statements, unless construed as an act in furtherance of conspiracy, would have been inadmissible as evidence of the substantive counts; therefore, the defendants contend that the introduction of the evidence prejudiced them.

On trial, under direct examination, Lombardi denied that he or the other defendants had beaten the Chiagouris brothers — testimony inconsistent with his purported statements to agent Walker. On cross-examination he denied making certain damaging admissions. Walker was then called to impeach Lombardi’s testimony, after which the jury was instructed that the testimony regarding statements Lombardi had made to Walker was admitted for the limited purpose of impeachment, and that Walker’s testimony should not be considered for the purpose of establishing the truth of the facts related in the alleged conversation. Defendants argue that an instruction could not repair the damage caused by allowing the evidence to be introduced, and that the defendants were deprived of a fair trial and “of the constitutional right to confront and cross examine that accusation.”

Here we must point out that one does not confront or cross-examine an accusation; one confronts or cross-examines a witness. In Bruton v. United States, 391 US 123, it was held that the defendant was denied his right of confrontation and cross-examination when a codefendant’s out-of-court statement which inculpated the defendant was read into evidence, but the codefendant himself did not testify. However, in the case before us Lombardi did testify and in fact attempted to exculpate both himself and his codefendants by stating that neither he nor anyone else beat the Chiagouris brothers on the night in question.

The relation of out-of-court statements made by Lombardi to Walker, which were inconsistent with his testimony at trial, was used to impeach Lombardi, and from the State’s viewpoint, to prevent the giving of unchallenged and perjured testimony to the jury. Furthermore, Walker, in using Lombardi’s alleged statement, deleted any names Lombardi had mentioned. Where names of codefendants are omitted from the body of a confession the codefendants are still prejudiced if it is apparent from the context that it was the names of the codefendants which were deleted. People v. Hodson, 406 Ill 328, 94 NE2d 166; People v. Gregory, 22 Ill2d 601, 177 NE2d 120. Defendants argue that it was an inescapable conclusion that the names deleted by Walker from Lombardi’s statement were those of the codefendants.

This argument, however, must fall, since the complained-of testimony was not introduced as a part of the State’s case-in-chief, but was brought in only as rebuttal testimony. Lombardi testified; consequently, he was subject to cross-examination. The jury had been carefully instructed regarding the purpose for which they were and were not to consider Walker’s testimony. We do not feel that the use by Lombardi of the word “they” necessarily pointed to the codefendants. In any case, prior evidence had so firmly linked the defendants together that no further proof was necessary to establish the conspiratorial bond between them.

3. The defendants argue that the State was permitted to introduce into evidence self-serving exhibits, which admission was reversible error. The exhibits referred to were various writings and one check, intended to establish the fact that loans actually were made. People’s Exhibits 1 and 3 were carbon copies of notes allegedly executed by the brothers and delivered to defendant Messino for the first and second loans. People’s Exhibit 14 was fragments of original notes executed for the first loan, allegedly returned by Messino to the brothers; and People’s Exhibit 5 was a $10,000 cashier’s check purportedly refused by Lombardi, which check was later cashed and the proceeds turned over to Lombardi.

No objection was made to the testimony of the brothers regarding the making or repayment of the loans. Such evidence was relevant in establishing a foundation for believing that violence resulted when the payments became tardy. The only objection made on appeal is that self-serving documents were introduced, together with the testimony in support of the fact that the loans were actually made, and that the documents should not have been admitted.

This is not a serious issue. The damaging evidence was the testimony of the brothers regarding the making of the loans and the repayment procedures. The exhibits were merely secondary sources, and the fact that the defendants assert there was no connection between the documents and the alleged transaction does not require the exclusion of the documents. They represented physical evidence connected to the defendants through the testimony of State witnesses, and as such were admissible. The jury had the burden of assessing the proper weight to be given the documents.

4. The defendants contend that error was committed when the trial court permitted the introduction of evidence of transactions between the brothers and defendant Caravello, who was acquitted by a directed verdict at the close of all the evidence. It is asserted that evidence of the said transactions was irrelevant to the issues on trial, and that evidence concerning the beating of Caravello was prejudicial to the defendants. However, the trial court instructed the jury not to consider the evidence of these transactions as against anyone but Caravello. In giving such instruction the court exercised extreme caution, and the admitting of the evidence was unquestionably proper.

The fact that the brothers were able to give Caravello large sums of money immediately after the meetings with the other defendants implies that they had just obtained large sums of money through the loans from the defendants. Evidence concerning the beating of Caravello when the defendants learned that the brothers were slow in payments to them on account of loans they had made to Caravello, substantiates the intimidation charge on the part of the brothers, since the beating occurred in their presence and could have been intended as a lesson to them that they should make their payments on time. As we have said, the trial court instructed the jury to consider the evidence only against Caravello. Under the circumstances, the limiting instructions adequately protected the defendants.

5. The defendants assert that evidence was permitted to be introduced showing an independent surveillance of some of the defendants which took place on a date which was irrelevant to the instant case and that the permitting of such evidence was error. Robert Potter, criminal investigator for the Secretary of the Treasury, testified he had seen Messino, Mercurio and Caravello meet at the Wow Restaurant on July 11, 1965. The date is not important with reference to the charges against the defendants. The defendants argue that the testimony was prejudicially suggestive that they were guilty of other misconduct, and that such testimony must have affected the jury in spite of the fact that the trial court instructed them to draw no inferences that the defendants were the subject of an inquiry by some other law enforcement agency. The alleged beating of the brothers had occurred in the Wow Restaurant during the previous month, and Potter’s testimony was circumstantial evidence tending to show an association between some of the defendants who were meeting at the same place. Although the evidence may not have been absolutely necessary to prove the case, that fact does not make its admission so prejudicial as to require reversal. Great latitude should be granted to the trial court in assessing the admissibility of circumstantial evidence when such evidence was offered to establish factors pointing towards a conspiracy. In this instance the court did not abuse its discretion by allowing Potter to testify.

Defendants argue that the trial court should have restricted the prosecutor’s opening statement by not allowing him to interject remarks regarding Messino’s flight from the arresting authorities. There is a direct dispute as to whether or not defense counsel had ever made a pretrial motion to restrict the State’s opening statement, and since the motion and the ruling do not appear in the record, the argument could be disregarded. People v. Funches, 17 Ill2d 529, 162 NE2d 393. The rule laid down in Muscarello v. Peterson, 20 Ill 2d 548, 170 NE2d 564, does not apply. In that case the court held that if the alleged conduct is so prejudicial that the other party cannot receive a fair trial the court will review and consider assignments of error, even though no objection was made. That rule has no application to the situation in the instant case. However, assuming that defense counsel made such a motion in the instant case, there was still no reversible error. The jury was instructed to disregard the remarks it had heard concerning the chase. The evidence introduced was minimal and the instruction to disregard it came immediately after the testimony. Further, on the basis of the record, this one point is dwarfed by the other testimony regarding Messino’s guilt. At most, it was a minor error which was quickly and adequately rectified.

Finally, defendants argue that they were denied a fair trial by improper comments of the prosecutor suggesting that the defense counsel were acting “tricky,” and employing unethical tactics in defense of their clients. We must consider that the trial was long and hard fought; and since no trial is a perfect one, in such cases counsel for both parties often say things which would be better left unsaid. Comments can be so far out of line as to deny defendants a fair trial; however, this did not occur in the instant case. True, caustic comments were made by both the State and defense counsel, but no comment was made upon inadmissible evidence or any other matter which would prejudice the defendants. See People v. Gilmer, 110 Ill App2d 73, 249 NE2d 129. Convictions are not reversed simply because either or both sides made a few comments which would have been better not made. In view of the clear and convincing evidence of guilt we cannot say that such remarks prejudicially influenced the jury or that the verdict would have been otherwise had the remarks not been made, and we will apply the rule laid down in People v. Hines, 30 Ill2d 152, 157, 195 NE2d 712, to that effect. In People v. Naujokas, 25 Ill2d 32, 182 NE2d 700, the court, referring to certain remarks made in the case, said at page 38:

“While the remarks were improper, nevertheless, in view of the clear and convincing evidence of guilt of the crime charged, we are unable to say that the remarks may have influenced the result, or that the verdict could have been otherwise had the remarks not been made. People v. Stephens, 6 Ill2d 257.”

In a very recent case handed down by the United States Supreme Court, Harrington v. California, 37 USLW 4472, the court said:

“We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed.”

In the instant case the evidence of the defendants’ guilt, as in Harrington, was so overwhelming that any statements made by counsel are not of such character as to constitute reversible error. Defendants’ arguments must fail, and the judgment of the Circuit Court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE STAMOS

license: Public Domain

text:
    Margaret L. Clemens, Plaintiff-Appellee, v. Sandee Manufacturing Company, Defendant-Appellant.
    Gen. No. 52,358.
    First District, Fourth Division.
    September 10, 1969.

      Spangler & Greenberg, and M. G. Kaufman, of Chicago (Erwin H. Greenberg, of counsel), for appellant.
    Ebers, Metskas & Bjorvik, of Chicago (Thomas S. Metskas, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Defendant, Sandee Manufacturing Company, appeals from a decree wherein the court approved the findings of the Master and entered judgment in favor of plaintiff, Margaret Clemens, in.the sum of $29,330.70. Plaintiff cross-appeals from that part of the decree excepting from the Master’s report interest on the sum awarded by the decree.

The principal issue presented for review is whether plaintiff is the owner of the proceeds of a certain life insurance policy issued upon the life of plaintiff’s husband, James J. Clemens, deceased employee of defendant. The issue in the cross-appeal is whether the court erred in denying interest.

Plaintiff’s amended complaint in substance averred that plaintiff was the wife of James J. Clemens who had been employed by defendant; that defendant provided insurance on the life of James J. Clemens as terms of his employment; that because of economics it was orally agreed between James J. Clemens and defendant that defendant would retain the incidents of ownership and be named as beneficiary; that defendant orally agreed that in the event of James J. Clemens’ death it would pay the proceeds to plaintiff; that James J. Clemens has died and defendant has refused to deliver the proceeds to plaintiff. Plaintiff prayed that the defendant be declared to hold the proceeds in trust for plaintiff and to deliver the proceeds with interest to plaintiff from the date that defendant received the proceeds. Defendant’s answer denied all the agreements alleged in the complaint, denied that it held the proceeds in trust for plaintiff, and alleged that it was the owner of the policy and proceeds thereof.

Defendant is an Illinois corporation engaged in the business of manufacturing plastics. Its sole stockholder was Elmer Szantay, who was president of the company and a director from the date of the corporate organization to the date of his death on April 1, 1962. Prior to April I, 1962, Hellmuth Lange and M. G. Kaufman were the other directors. Kaufman was also attorney for defendant. Lange was also Secretary and Assistant Treasurer.

Subsequent to April 1962, the board of directors consisted of M. G. Kaufman, Hellmuth Lange and Robert Wehrheim. The latter succeeded Szantay as President, and Lange became Treasurer and Secretary of the company.

James J. Clemens was sales manager for defendant, and had been so employed for about 11 years at the time of his death. Defendant paid Clemens a salary, bonus, paid vacations, expense-free car and insurance.

Through interrogatories and stipulation it was established that Szantay in September 1959 as president of defendant, negotiated the purchase of Security Benefit Life Insurance Company policy No. 4080659, insuring the life of James J. Clemens for $15,000 and $15,000 accidental death.

At the same time, Szantay took out a policy on his own life for $100,000 without double indemnity, and policies on the lives of Robert Wehrheim and Charles McGuinness, employees of defendant, for the sum of $15,000 with double indemnity. These policies were taken out through Bernard E. Lindquist of Lindquist-Burns Company.

The premium on the policy insuring the life of James J. Clemens was paid by defendant by borrowing against the cash surrender value of the policy and applying any accrued dividends on the policy toward the premium, and paying the difference between the premium and the total of the amount borrowed and the dividends. The beneficiary of the policy was defendant.

On January 10, 1961, James J. Clemens received the following letter from defendant; received in evidence as plaintiff’s Exhibit No. 1 and hereinafter referred to as the letter. Policy No. 4 referred to in the letter is the subject-matter of this litigation.

“January 10,1961
“Dear Jim:
“We wish to confirm the insurance carried on you by your company.
“Policy #1 — The Sandee Mfg. Co. has obtained $10,-000.00 Group Life Insurance for you with $10,000.-00 Accidental Death or Dismemberment benefits, as shown on your policy issued by Mutual Benefit Life Insurance Co. Your company is paying the full premiums on this insurance. (Plaintiff was the stated beneficiary under this policy.)
“Policy #2 — Your company issued you also with a Group Accident Policy for $25,000.00 Accidental Death or Dismemberment benefits.
“No individual policies are issued for policy #2, inasmuch as the names of all executives are listed on the policy. You are covered for this insurance by Group Policy #9A BN 2817, by Indemnity Insurance Company of North America, your company is paying the full premiums on this insurance.
“Your beneficiary on this Policy #2 is the same as shown on Life Insurance Policy of Mutual Benefit Life Insurance Policy #1, a copy of which is in your possession. The accidental Policy of Indemnity Insurance Co. (Policy No. 2) is in possession of Sandee Mfg. Co.
“Policy #3 — You are also covered for $3,000.00 Life and Group Insurance by Aetna Life Insurance Co. Your contribution is .50 cents per week on this insurance. Your company pays the balance.
“Policy #4 — You are insured for $15,000.00 Life Insurance and $15,000.00 Accidental Death or Dismemberment benefits with Security Benefit Life Insurance Co., Topeka, Kansas, policy #4080659. This policy is kept in force with two objectives:
“ (1) Greatest maximum protection.
“ (2) Lowest annual payout cost to Sandee Mfg. Co.
“Lowest annual payout cost is achieved by Company borrowing against cash value of policy to assist in premium payments. This payment method will be continued. Accordingly, in the event of payout on this policy, the payout would be reduced by the amount of loan outstanding.
“RECAP OF INSURANCE
“POLICY
LIFE BENEFIT
ACCIDENTAL
“#1 Mutual Life $10,000.00 $10,000.00
“#2 Indemnity — 25,000.00
“#3 Aetna Life 3,000.00 3,000.00
“#4 Security Benefit 15.000. 00 15,000.00 * 28.000. 00 53,000.00
“Total payout in event of accidental death at the present time would be approximately $80,000.00.
“* Reducing balance in time.

MARGARET L. CLEMENS, Plaintiff, testified as follows:

On February 14, 1961, plaintiff had occasion to discuss the letter with Szantay. This conversation took place during an air trip to Iowa. Plaintiff, her husband, four-year-old son, and Szantay were on the plane. Szantay brought up the subject of insurance when they were discussing litigation arising from the death of another employee wherein Mr. Clemens was involved as a witness on deposition. Szantay asked plaintiff if she had discussed the letter with her husband and plaintiff said yes. Szantay referred to the letter as “the letter that stated the policies that the company had taken on different employees.” Szantay told plaintiff that the company wished to take this insurance out on its employees because Szantay did not want a repeat of the LaMere incident in which Mrs. LaMere was left practically penniless because of lack of insurance or foresight on her husband’s part. (Mr. LaMere was a salesman for defendant.) Szantay said that although Sandee was named as beneficiary, the proceeds would be paid to plaintiff and to her alone; that in the event of her husband’s death she would receive approximately $80,000 and plaintiff should not worry, she would be well taken care of. Szantay further related to plaintiff that the reason the amount he mentioned was approximately $80,000 was because the value of the No. 4 policy decreased as defendant borrowed against the cash value of it. This was done for financial reasons, since it was a financial benefit to the company that defendant own the policy.

SANDEE MANUFACTURING COMPANY
“(S) Elmer Szantay
“Elmer Szantay, President
“This certifies that above policies are in full force and effect.
“(S) H. Lange
“H. Lange, Sec’y. Asst. Treasurer.”

On April 1, 1962, James J. Clemens and Szantay died in an airplane crash. On April 6, 1962, plaintiff had a conversation with Lange in which he inquired if plaintiff had the letter regarding the insurance policies. Plaintiff replied in the affirmative. Lange then advised her that he was in possession of all the policies listed in the letter; that he would file appropriate claims for the proceeds; and upon receipt of the proceeds he would notify her and arrange to deliver them. On May 2, 1962, plaintiff at the direction of Lange, went to his home. There he gave her a check for the proceeds of the insurance of policy No. 1 and on May 19, 1962, he gave her the proceeds of policy No. 3. At that time Lange advised her that he had not received any word regarding plaintiff’s claim on policy No. 2, but that a. $30,000 check had been received on policy No. 4. However, he could not give it to plaintiff until he received Kaufman’s authorization. Plaintiff called Lange in September 1962, and Lange advised her that nothing had come in on policy No. 2, and that as to policy No. 4, he still did not have authority to release the proceeds to her.

In October 1962, plaintiff had another conversation with Lange. He advised her that policy No. 2 was not being paid by the insurance company because Szantay was piloting the plane when it crashed. Plaintiff inquired about the status of the proceeds under policy No. 4, and was told that Kaufman had not yet authorized its payout to her.

Plaintiff testified further that in these conversations regarding the proceeds of policy No. 4, Lange told her that when “Kaufman authorized payment he would give me my money.” In June of 1962, plaintiff retained legal counsel, Mr. Bjorvik, to pursue her claim against defendant for the proceeds of policy No. 4.

As far as plaintiff knew, her husband did not have an employment contract with defendant.

JOHN D. HAYES, testified on behalf of plaintiff.

He is an attorney-at-law and represented plaintiff in her suit for damages for the wrongful death of her husband in the air crash. On or about July 9, 1962, he was with plaintiff’s attorney Bjorvik when they visited Kaufman. The witness was present to discuss the wrongful death action against defendant. At that discussion, Bjorvik asked Kaufman: “What about the $30,000.00 life insurance policy?” (Policy No. 4.) Kaufman replied that they had received the proceeds and that plaintiff was entitled to the $30,000, but that its payment would not be authorized until the wrongful death action was disposed of. Bjorvik responded that they were independent claims, and the $30,000 should be paid to plaintiff. Kaufman then reiterated that there was no question that plaintiff was entitled to the money. But the affairs of defendant and of Szantay’s estate were such that they could not pay the $30,000 until the wrongful death action was disposed of.

ROGER BJORVIK, testified on behalf of plaintiff.

He is an attorney-at-law and his firm represents plaintiff. On June 7, 1962, he had a conversation with Robert Wehrheim, then president of defendant, who advised him that the proceeds from policy No. 4 were intended to be paid plaintiff, even though defendant was the beneficiary, but because of tax ramifications there was a question on whether the proceeds were to be paid in a lump sum or installments. The witness testified he also had a conversation with Lange the same day and Lange said the proceeds were payable to plaintiff, even though defendant was beneficiary.

On July 9, 1962, the witness, in the company of John Hayes, visited Kaufman at his office. Kaufman in response to the witnesses’ question regarding the proceeds of policy No. 4 said that defendant had received the proceeds and plaintiff was entitled to them, but no funds would be released until the wrongful death action had been disposed of.

During a telephone conversation with Wehrheim, he was told that the employees could name any beneficiary to policies 1, 2 and 3, but as to policy No. 4, it had to be defendant.

BERNARD E. LINDQUIST, testified on behalf of defendant.

He is an insurance broker and was a friend of Szantay. The witness wrote all of defendant’s and Szantay’s insurance, and was aware that Szantay was sole shareholder of defendant. Policy No. 4 was identified by the witness as one he wrote, and after Clemens’ death he forwarded the policy No. 4 to the insurance company. The witness related that he sold Szantay on the idea of purchasing additional insurance on his life as well as defendant’s “key employees.” This topic came up when he was discussing with Szantay the possibility of securing additional insurance from him personally at a standard rate by insuring additional members of Szantay’s company under a “key-man” insurance plan. There were two reasons why he recommended “key-man” insurance, one was that he wanted to sell insurance and the other reason was that Szantay had been a “rated risk.” As a result, he and Szantay were always looking for means of increasing Szantay’s insurance at standard rates. Szantay was told that the insurance was “key-man” insurance, would be owned by defendant, and it would be the beneficiary. The proceeds would not be taxable. Szantay had indicated that he desired to take out additional life insurance on the lives of his employees and furnished the information to the witness. He testified there are many reasons for the purchase of “key-man” insurance, one is to pay the cost of retraining a new employee, another reason may be a contract with an employee for this insurance, but it is considered mainly for the employee.

The witness stated that the phrase “key-man” life insurance was not used in the policy or on any documents relating to policy No. 4. “Key-man” insurance does not relate to a type of insurance, but to the use of the proceeds once received, and there were no restrictions on defendant’s use of the proceeds.

WALTER MEYER, testified on behalf of defendant.

He is a certified public accountant with the firm of Arthur Anderson Co., and he related that he was the manager in charge of defendant’s audits. When defendant received the proceeds from policy No. 4, they were recorded in defendant’s books as “insurance proceeds payable,” which is a liability account. The proceeds from Szantay’s policy were reflected as a debit on the cash account and placed into an account titled “surplus.” Two months later an audit revised the entry of an account payable, and the proceeds of policy No. 4 were credited to surplus. There was nothing in the company records to indicate that proceeds of policy No. 4 were payable to anyone other than the company. That is why this witness questioned and revised the books to reflect the proceeds in surplus.

M. G. KAUFMAN, testified on behalf of defendant.

He is an attorney-at-law and was a lifelong friend and legal advisor of the deceased Szantay. The witness related he was familiar with the defendant and its officers and employees for many years. At the time of Szantay’s death, the witness was attorney and director for defendant, and attorney for the executor of Szantay’s estate. There were never any written contracts between defendant and any of its employees. Life insurance policies on lives of employees were never discussed at board meetings. The witness told Lange not to pay the proceeds of policy No. 4 to plaintiff, because it was the conelusion of the witness and the executor, the Northern Trust Company, that the proceeds belonged to defendant. The witness related he had discussed the policies of insurance defendant had on its employees and officers with Szantay and also the disposition of the proceeds in the event of collection.

On July 10, 1962, the witness related that John Hayes and Roger Bjorvik came to his office and he advised them that while the proceeds of policy No. 4 belonged to defendant, in order to settle the dispute regarding the wrongful death action and plaintiff’s claim to the proceeds, the witness would recommend to the executor that plaintiff be paid the sum of $70,000. He denied telling Bjorvik or Hayes that plaintiff was entitled to the proceeds of policy No. 4, and further denied he told them the proceeds would be paid plaintiff after the wrongful death action was disposed of.

Lange and Wehrheim were not called upon to testify. On April 12, 1962, Lange wrote a letter, plaintiff’s Exhibit No. 2, to Lindquist’s company wherein Lange referred to policy No. 4 as “Clemens’ Policy” and stated “Mr. Kaufman will file Clemens’ claim direct with the insurance company.”

OPINION

Plaintiff’s claim to the proceeds of policy No. 4 is predicated upon an express oral trust of which she is the beneficiary. Defendant contends that relief should be denied because: (1) Szantay lacked authority to bind the corporate defendant in the creation of a trust of the proceeds of the insurance policy; (2) plaintiff was permitted to testify to a conversation with Szantay in contravention of Ill Rev Stats, c 51, § 2 (1967), commonly known as the dead man’s statute; (3) proceeds of an insurance policy may not be the subject-matter of a trust prior to the death of the insured; (4) the trust was not established by clear, convincing, unequivocal and competent evidence.

Defendant argues that Szantay as president, sole shareholder and a director of defendant lacked the requisite authority to create the express oral trust of the proceeds of the insurance policy. Ordinarily, the president of a corporation has no authority, in absence of action by the board of directors, to enter into, on behalf of the corporation, unusual or extraordinary commitments, contracts or obligations that are not in the regular course of business.

In Korman v. Wanen Catalpa Apartments, Inc., 20 Ill App2d 598, 156 NE2d 621 (1959), the president of the corporation owned 244 of the 250 shares of corporate stock, the other 6 shares were owned by his wife and daughter. The president contracted to sell the sole corporate asset. The contract was negotiated by the president alone, the officers and directors were not consulted. In holding the corporation bound, the court said that if the president of the corporation carries on negotiations with apparent authority to bind the corporation, and the corporation does not object to the president’s action in that regard, then the corporation is bound by the authority exercised by its president.

In Mid-Continent Const. Co. v. Goldberg, 40 Ill App2d 251, 188 NE2d 511 (1963) the court said at page 261:

“The Korman decision is consistent with writing in this area. In Professor Fuller’s article, The Incorporated Individual: A study of the One-Man Company,.51 Harv L Rev 1373, 1388, he states:
“It has been urged that a shareholder-manager may not contract in the corporate name in the absence of authority from the board of directors. But if the one-man company is viewed realistically, it affords no proper place for the application of general agency principles to the activities of the shareholder-manager. Where a sole shareholder purports to act in behalf of the company, there is no other person concerned; he acts in his own interest and for himself alone. The justification existing in the ordinary corporate situation for treating the corporation as a separate person, i. e., a principal, is entirely lacking.”

At page 260 the court quoted with approval from 19 CJS, Corporations, § 1004:

“[T]he trend of authority is to uphold as binding on the corporation acts or contracts on its behalf by a person or persons owning all or practically all of the stock, even though there is a lack of, or defect in, some corporate step or action. . . . [T]he fact that certain officers own all or practically all of the stock may have an important bearing in determining the validity and binding effect of their acts. Thus, where certain officers are the sole corporate owners of the corporation, they are not limited in the control of the corporate affairs by a board of directors which must necessarily consist of dummies, and the corporation is bound by the acts of officers who are in reality its owners and are permitted by the director to manage the business;

Defendant cites Smith v. Shoreline Printers & Publishers, Inc., 6 Ill App2d 290, 127 NE2d 677 (1955); Sacks v. Helene Curtis Industries, Inc., 340 Ill App 76, 91 NE2d 127 (1950); and Warszawa v. White Eagle Brewing Co., 299 Ill App 509, 20 NE2d 343 (1939) in support of its contentions regarding Szantay’s lack of authority. In Smith, supra, the president owned only 2 shares of 2,551 shares of stock issued and outstanding. The court noted that the president’s wife owned the controlling interest of 1,336 shares, a son owned 646 shares and a daughter owned 567 shares, and there was no evidence that the president’s wife was not in control of her separate property rights or that she was regarded as his nominee. Sacks, supra, cited Warszawa, supra, and in these two cases, there was no evidence to support the authority of its president to enter into extraordinary contracts or commitments, nor that the respective presidents were the sole owners and shareholders.

The Master specifically found that Szantay as president and sole shareholder had authority to bind defendant. This was approved by the trial court over defendant’s exceptions. We concur that Szantay had the requisite authority.

Defendant contends that the testimony of Mrs. Clemens, which was admitted over its objection, concerning her conversation with Mr. Szantay on the air trip to Iowa, was inadmissible because of Ill Rev Stats, c 51, § 2 (1967) which provides:

“No party to any civil action, suit or proceeding . . . shall be allowed to testify therein of his own motion, or in his own behalf . . . when any adverse party sues or defends as the . . . trustee of any . . . heir, legatee or devisee. . . .”

We fail to see how the defendant is a protected party within the terms of the statute. Defendant’s answer denied that it was a trustee as alleged in the complaint, yet defendant seeks the protection granted to a trustee of an heir, legatee or devisee under the statute to render the testimony of Mrs. Clemens incompetent. A reading of the complaint reveals that it could reasonably be said that defendant was sued as a trustee of the heirs of James Clemens. This does not, however, change the capacity in which the defendant defended the suit. Defendant defended from the position that it was the absolute owner of the proceeds of the insurance policy, not as the trustee of an heir, legatee or devisee. The statute provides that “when a party sues or defends” in one of the enumerated protected capacities, he may assert the protection of the statute. In the case at bar, the defendant neither sued nor defended as an adverse party in one of the protected capacities under the statute. Therefore, the defendant is not entitled to the protection of the statute.

Defendant concedes that a life insurance policy may be the subject-matter of a trust, but argues that the proceeds of an insurance policy cannot be the subject-matter of a trust.

In the case of Otis v. Beckwith, 49 Ill 121 (1868), our Supreme Court enforced a trust upon the proceeds of an insurance policy. In Otis the administrator of the Estate of Edward Sacket refused to deliver a policy of insurance which was in the possession of the decedent at the date of his death. The insurance policy was assigned in writing to the named trustee; the insurance company had noted the assignment on its books and the trustee had accepted the trust by written instrument. We are mindful that the facts in Otis are different from those here, but the legal issue and its resolution are applicable to the litigation before us. Otis is discussed extensively in Gurnett v. Mutual Life Ins. Co., 356 Ill 612, 191 NE2d 250 (1934); see also 102 ALR 588.

Defendant asserted in its brief that even assuming that a trust of insurance proceeds can arise, the ultimate issue in the case at bar is whether a trust did, in fact, arise. Defendant correctly contends that the evidence required to establish a trust must be clear, convincing and unequivocal both as to its existence and to its terms and conditions. Trubey v. Pease, 240 Ill 513, 88 NE 1005 (1909); Williams v. Anderson, 288 Ill App 149, 5 NE 2d 593 (1936); Otis, supra.

We must, therefore, consider defendant’s contention that plaintiff failed to prove her case by clear, convincing and unequivocal evidence. Plaintiff testified that Mr. Szantay told her that although the corporation was named as beneficiary, the proceeds of the insurance policy, in the event of her husband’s death, would be paid to her and to her alone. Whether her testimony is credible or whether it is impeached are generally matters for the trier of fact, and its findings will not be disturbed unless they are against the manifest weight of evidence. In re Estate of Foster, 104 Ill App2d 447, 244 NE2d 620 (1969). After the death of plaintiff’s husband, the corporation treated the proceeds of the insurance policy as a liability of the corporation. The course of conduct and the conversations (as testified to by plaintiff and her witnesses) between plaintiff and the Secretary-Treasurer and the attorney of defendant (both of whom were directors and thus constituted a % majority of the board) all indicate that defendant considered the proceeds of the policies as plaintiff’s property. Two attorneys, one an attorney for plaintiff in another matter and one a member of the law firm representing plaintiff in the present litigation, testified to conversations with different officers of defendant in which the officers reaffirmed plaintiff’s right to the proceeds. It must also be noted that defendant neither called certain officers of the corporation to rebut plaintiff’s evidence nor explain why they were not called. The Master heard the evidence and observed the demeanor of the witnesses and made his recommendations to the Chancellor, who heard exceptions to the Master’s Report and then approved the Master’s Report as modified in ways not here pertinent. The findings of the Master when approved by the Chancellor will not be disturbed on review in the Appellate Court unless they are manifestly against the weight of evidence. Ideal Trading Corp. v. 237 E. Ontario Corp., 82 Ill App2d 160, 227 NE2d 150 (1967). We find that the decree is supported by evidence and see no basis to find it was against the manifest weight of evidence.

Plaintiff cross-appealed and complained that the trial court erred in sustaining defendant’s oral objection to the imposition of interest on plaintiff’s recovery of $29,-330.70, which objection was made for the first time when the decree was presented for entry.

Plaintiff further contends that defendant’s failure to specifically object to the allowance of interest before the Master and to include the objection in its exceptions to the Master’s Report constituted a waiver of the objection to the allowance of interest. Plaintiff argues that notwithstanding the waiver of the objection, the allowance of interest by the Master was proper, whether it be based on equitable consideration or Ill Rev Stats, c 74, § 2 (1967) which provides for interest: “. . . on money withheld by an unreasonable and vexatious delay of payment.”

Defendant responds and argues that plaintiff’s claim to interest is predicated upon paragraph 10 of the Master’s Report wherein the Master “recommends” that a decree be entered in favor of plaintiff against defendant and the sum recovered be paid to plaintiff with 5% interest per annum, and there is no finding of fact or conclusion of law regarding the imposition of interest. Defendant further contends that it objected to the Master’s findings that plaintiff is the owner of the proceeds. Therefore, if plaintiff is not entitled to a judgment, plaintiff is not entitled to interest and that for plaintiff to insist that although defendant objected to the entry of a judgment in favor of plaintiff, this does not constitute an objection to the awarding of interest, is too semantic and technical.

The issue thus is, whether the defendant’s objections' to the Master’s finding that plaintiff is the owner of the proceeds and further objections to the entry of a judgment for the principal in favor of plaintiff, embrace within themselves, without specificity, an objection to the imposition of interest. The Master did not make a finding of fact or conclusion of law that interest was to be assessed upon the principal amount, but merely recited it in his recommendation regarding the framing of the decree.

In Cooper v. Brogni, 50 Ill App2d 70, 199 NE2d 619 (1964), the court said at page 77:

“Interest is allowed in chancery where warranted by equitable consideration. It has been held that in order to have an unreasonable and vexatious delay which would authorize a court of chancery to award interest, there must be something more than mere delay of payment, and the appearance and defense of a suit is not considered such delay. There must be continuance on the part of the litigant causing the delay which comes very close to actual fraud.”

We hold that under the record in this case, defendant’s objections were sufficient to obviate any waiver and the trial court properly entertained defendant’s objection to the assessment of interest and did not abuse its discretion in the disallowance of interest.

For the foregoing reasons we therefore affirm the judgment of the trial court.

Judgment affirmed.

ENGLISH and McNAMARA, JJ., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Seaboard Surety Company, a Foreign Corporation, Plaintiff-Appellee, v. Glenayre Estates, Inc., a Corporation, Carol Kuhn, et al., Defendants-Appellants.
    Gen. No. 52,812.
    First District, Fourth Division.
    September 10, 1969.
    Fred Weiszmann, of Northbrook, for appellants.
    Menk, Johnson, Bishop & Brooks, of Chicago (John Cadwalader Menk, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This action was brought by plaintiff, a surety company, to recover from its indemnitors, defendants, sums paid to the Highway Commissioner of Maine Township of Cook County, to obtain release of a performance bond upon which plaintiff was surety. The trial court found in favor of the plaintiff and entered a judgment in the amount of $6,140, plus $2,815.70 for costs and attorneys’ fees.

Defendants raise three points in their appeal: (1) that they were not proven to have inadequately performed on their contract with the Maine Township Highway Commissioner for the construction of certain streets; (2) that the amount of damages is excessive because it includes the cost of a superior type of surface than that required in the contract with the Highway Commissioner; and (3) that pursuant to the “Sureties” statute of Illinois, Ill Rev Stats 1961, c 132, § 1, plaintiff, instead of paying the amount claimed and suing the defendants, should have sought a release from its obligations.

On February 15,1957, defendant Glenayre Estates, Inc., entered into an agreement with the Maine Township Highway Commissioner to construct certain streets in the Eugenia Subdivision in accordance with the “Standard Specifications for Road and Bridge Construction of the State of Hlinois.” The streets were to be “a minimum of 20 feet of paved area with blacktop A-3 surface on a seven-inch stone Base,” and were to be subject to the approval of the County Superintendent of Highways. The agreement required a performance and completion bond which was obtained from plaintiff.

In order to obtain the bond, defendant Glenayre Estates, Inc., entered into one agreement, and the individual defendants entered into another agreement, to indemnify plaintiff against losses suffered by it as a consequence of the performance and completion bond. Glenayre then hired Troyh-McNeil Paving Company to build a street known as Stacey Court. According to appellants’ Statement of Facts “[i]n Spring of 1958, defendant Glenayre caused Stacey Court to be constructed under the supervision of the Highway Commissioner to 1-11 standards rather than the lesser A-3 standards set forth by the Surety Bond.” Appellants’ brief also states that “with the approval of the Highway Commissioner a wider street of 26 feet with a better surface of 1-11 asphalt was in fact constructed.”

About two years after the completion of Stacey Court, Troyh-McNeil did some repairs on Stacey Court consisting of replacing some small patches of base and resurfacing those areas. Thereafter, in the spring of 1960, the then Commissioner Elmer Dean inspected Stacey Court and found it in a state of disrepair; he stated that if the holes were repaired that the street would be accepted. Defendants did not make the repairs and shortly thereafter Commissioner Dean died. Dean had ordered tests of the road from Ki-Mat Soil Testing. Ki-Mat made seven boring tests and found a damp clay base and varying depths of stone and gravel; some of the borings revealed the presence of sand immediately below the surface. The stone found varied from fine gravel to coarse and crushed stone; and the heaviest stone was always found immediately above the subbase. In several borings, the heavy stone was found below the seven-inch level. Moisture and dampness in different degrees was found in six of the seven borings.

Another inspection of the base in 1964 made by sinking a pick into deteriorated locations revealed about two inches of crushed stone and several more inches of a mud clay.

During the course of 1963 and 1964 several meetings were held between representatives of defendants, of the plaintiff, and of the Highway Commissioner. At one meeting defendants offered to patch the holes in the road and resurface it with A-3, but the Commissioner refused to accept this and insisted on an 1-11 surface. At a later meeting the Commissioner brought in a bid from the Skokie Valley Asphalt Company to repair the road, but the defendants thought that the bid was too high and offered to find a lower bidder by the next meeting. At the next meeting there was no lower bidder so Skokie Valley was awarded a contract to make repairs on Stacey Court.

Skokie Valley found it necessary to replace the entire base which was done with existing broken asphalt and poz-o-pac; and the road was resurfaced with 1-11. The total cost to Skokie Valley for the work was $6,289.02 for which the Highway Commissioner was charged only the bid price of $6,140. A reasonable charge for the work done by Skokie Valley was $7,054.55.

It is undisputed in the instant case that Stacey Court needed major repairs in the summer of 1964 when Skokie Valley was hired to rebase and resurface that road. The question raised on these facts is whether the deterioration was caused by faulty initial installation of the road or by some other force. Defendants contend that if they followed the plans and specifications properly, then they cannot be held liable for the cost of repairing any subsequent deterioration. This is correct. When a surety company settles a claim before the validity of that claim has been adjudicated, then the burden is upon the surety in an action against its indemnitor to prove a valid and legal liability. See United States Fidelity & Guaranty Co. v. Dickason, 277 Ill 77, 115 NE 173; National Slovak Society of the United States of America for the use of American Surety Co. of New York v. Matlocha, 307 Ill App 41, 29 NE2d 946. Thus the issue in the instant case is whether the initial construction of Stacey Court was properly accomplished according to the plans and specifications; and the burden was on the plaintiff surety company to prove that the road was not properly constructed.

The only direct evidence on the question of what materials were put into the base is the testimony of defense witnesses McNeil and Hill. Earl McNeil is one-half owner of the paving contractor that originally installed Stacey Court and was at the job site twice a day while the road was being built. He testified that a seven-inch stone base was put in according to the plans and specifications, and he testified further that he measured the depth of the base. Defendant Virgil Hill testified that he was on Stacey Court every day that the road was being built because he was in charge of the construction of houses along the street. He testified that he was not in charge of the road building but that he observed a seven-inch stone base being put in on Stacey Court.

Plaintiff was unable to offer any direct evidence that seven inches of stone was not put into the Stacey Court base; rather plaintiff introduced evidence of the soil tests made in 1961 and 1964 and had experts testify as to their conclusions from materials found in the Stacey Court base.

Plaintiff’s expert witness William Mathieu, who made some soil tests in 1961, testified that the conditions he found would not have existed if the road had had a hard clay subbase and a compacted stone base. He stated that it was fair to conclude that the subbase and base he found contained the materials that were actually placed in the road. He further testified that the sand he found in the base is not the type of sand that is used in laying a gravel base, that it must have been put in with the base, and that the presence of the sand would prevent the proper compaction of the base. He testified that the wet condition he found was in part caused by the failure of the top seal to hold moisture out, but he also stated that improper drainage could cause the problem. He testified that the moisture was a contributing cause of the deterioration of the road.

Another of plaintiff’s experts, Elmer F. Bronke, testified that the condition of the road in 1964 indicated improper compaction of both the subbase and the base. He stated that the improper compaction of the base allowed the subbase to pump up through the stone and created a condition where any normal traffic would cause the pavement to disintegrate. The primary cause of the failure was the improper compaction of the base. On cross-examination he conceded that there were other potential reasons for a failure, among them being traffic in heavy equipment over an incomplete base and improper drainage. On redirect, however, he stated that if there were a properly compacted subbase and base, then the conditions he found on Stacey Court would not have existed.

Defendants’ experts offer a different explanation for the deterioration of Stacey Court that is not inconsistent with that of plaintiff’s experts. Defendants’ experts testified that the clay subbase could be pumped up through the stone base creating the condition discovered in 1961 and 1964 if there is water on the subbase and if there is heavy traffic over the base. The existence of those two conditions will cause the base to sink into and mix with the subbase. Then when a flexible surface (such as an A-3 or an 1-11) is laid over the base the undulations of that surface will draw the subbase up through the base because of the vacuum created under the surface.

Defendants argue that the theory of their experts is supported by the facts that there was rain during the construction of the road, that there was a serious drainage problem on Stacey Court which was no fault of theirs, and that there was heavy traffic over the exposed base for several months before the surface was laid. Defendants did not, however, offer any refutation of plaintiff’s evidence that there was sand in the base materials and that the sand would prevent proper compaction of the base.

It is a well established principle that a reviewing court will not substitute its judgment on a factual question for that of a trial court unless that judgment is manifestly against the weight of the evidence. Narowetz Heating & Ventilating Co. v. Solar Sales, 86 Ill App2d 387, 392, 230 NE2d 37. The evidence adduced by plaintiff supports a finding that the base and subbase were improperly constructed. Defendants’ evidence that a damp condition coupled with heavy traffic over the base can cause deterioration is admitted by plaintiff’s experts. However, they all state that the pumping up which occurred on Stacey Court would not have occurred if the base and subbase had been properly compacted. This theory is never denied by defendants; and it was incumbent upon defendants to properly compact the base and subbase. Further, there was testimony that the proper compaction of the base was prevented by the presence of sand in the base materials. Defendants were responsible for the placement of proper materials in the base of Stacey Court and must be held responsible for the sand, the existence of which they did not deny. We are, therefore, of the opinion that defendants’ installation of Stacey Court did not satisfy the specifications and requirements of the County Highway Commission, and we hold that the judgment of the trial court was not against the manifest weight of the evidence.

Defendants next contend that the damage award is in an improper amount. Defendants argue that the $6,140 was paid for the replacement of the base and for the placing of an 1-11 surface; but they point to the specifications which require only an A-3 surface (which is less expensive than an 1-11) and contend that they should be held only for the cost of the less expensive surface. This argument is without merit, however, because defendant Victor Kuhn testified that the change in surface to 1-11 was necessitated by a problem in blending an A-3 with the surface which was on the roads of the adjoining subdivision, Eugenia No. 1. Defendants admit in their brief that the change to the more expensive surface was made with the approval of the Highway Commissioner. Thus it appears that the written specifications were orally modified to require the placing of an 1-11 surface on Stacey Court. Such being the case, the specifications would be satisfied and the bond released only if an 1-11 surface was placed on Stacey Court, and defendants are obligated to compensate plaintiff for the expense incurred in the placing of the required surface.

Defendants finally argue that the Illinois statute governing sureties, Ill Rev Stats 1961, c 132, § 1, required plaintiff to give notice to the Highway Commission to sue defendants. However, the statute leaves the employment of this procedure at the option of the surety and allows its use only when the surety “apprehends that his principal [defendants herein] is likely to become insolvent or to remove from the state, without discharging the contract.” Thus the statute is unavailing to defendants because it does not require the surety to follow the procedure and because there were no grounds for apprehension that defendants were likely to become insolvent or to remove from the state.

Reviewing the entire record, we believe that the trial court was correct in its judgment that defendants were liable to plaintiff in the amount of $6,140, plus assessed costs and attorneys’ fees. The judgment is affirmed.

Affirmed.

ENGLISH and STAMOS, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Woods, a/k/a Eddie Woods, Jr., Defendant-Appellant.
    Gen. No. 52,821.
    First District, Fourth Division.
    September 10, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz 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 Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Eddie Woods, was charged with the crimes of burglary and attempted rape. After a bench trial, defendant was found guilty of both charges and sentenced to the penitentiary for a term of four to ten years, the sentences to run concurrently. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that the lineup conducted by the police was so unfair and prejudicial as to have denied him due process; and that prosecutor’s misstatement of facts in closing argument constituted reversible error.

Complainant testified that on May 10, 1967, she lived in a second-floor apartment at 6618 South Wabash, Chicago. Her apartment had three rooms, with only one entrance and exit. The building had a common balcony for the four apartments located on the second floor. On that date, at approximately 9:55 p. m., she was home with her 11-month-old son; her husband was at work. A man whom she identified as defendant came to her door. She did not open the door, but conversed with him through a peephole in the door for a minute or two. Defendant told her that she had left her car lights on; she replied that it wasn’t her car. Approximately five or ten minutes later, while she was in her bedroom playing with the baby, she noticed the living room curtains blowing, and she heard feet shuffling in the kitchen. The bedroom lights were on; the lights in the other rooms were off. As she started to leave the bedroom, defendant came in and knocked her to the bed. She screamed, asked him not to hurt her, and told him that she was eight and a half months pregnant at the time. He pulled off her undergarments and attempted to have intercourse with her. He did not take off his clothes, but exposed himself. He then grabbed her by the neck and dragged her to the living room. He dragged her back to the bedroom, slapped her on the face and again tried to have intercourse. She continually pushed and struggled to resist him. He asked for money, looked through her dresser, and dragged her to the bathroom. After a struggle, he pushed her into the bathtub and ran out the door. The entire occurrence took about 25 or 30 minutes. She called her parents, and when they arrived, the police were called. Her assailant was approximately 5 feet 8 inches to 5 feet 11 inches, wearing a lightweight jacket, waist length, zipper front, brown pants, a green plaid shirt and had on a cap. She did not remember how much he weighed. Although she saw his face clearly, she did not recall seeing any identifying mark. She was taken to the hospital that evening, and was released from the hospital four days later. Before she went to the hospital, two police officers interviewed her briefly. She gave the first detailed account of the occurrence to two detectives after her stay in the hospital. The police showed her some photographs, but she did not see any of defendant. After the assault, she next saw defendant in a lineup at the police station on May 21. There were five men in the lineup. At the lineup, defendant was wearing the same jacket and trousers as on the night of the occurrence, and the rest of his clothing was of the same style. He did not wear a cap at the lineup. After the lineup, one of the officers showed her defendant’s picture in a book. She had looked through that book previously, but had not recognized defendant.

Officer Richard O’Connell of the Chicago Police Department testified that he requested the complaining witness to come to the police station on May 21 to view a lineup. The lineup was composed of five men. Except for one man in the lineup who was forty years old, the others were about the same age and had physical characteristics similar to defendant. Defendant was 6 feet, weighed approximately 180 pounds and was 19 years of age. At the lineup he wore a dark olive green waist length jacket, green shirt, brown trousers, but was not wearing.a cap. When the witness first saw defendant, he noticed a small scar on his right cheek.

For the defense, Brenda Foster, 16 years of age and a friend of defendant, first testified that on May 10,1967, defendant came to her home about 11:00 a. m. and stayed until about 4:00 p. m. Her mother, brother and sister were also there. She then testified that she thought May 10 was a Monday, that actually on May 10, he came over about 6:30 or 7:00 p. m., and stayed until 8:00 or 9:00 p. m. Her father and sisters were home.

Rita Williams, 15 years of age and also a friend of defendant, testified that on May 10, 1967, defendant came to her home about 11:00 a. m. and left about 6:30 p. m. He then went to Brenda Foster’s home and came back afterwards. She and her boyfriend walked defendant to the elevated station about 10:30 or 11:00 p. m. She told defendant to call her when he got home so that she would know that he arrived safely, and he telephoned her about 11:30. Her parents and sister were home on that day.

Defendant testified that on May 10 he went to Rita Williams’ home about 10:30 a. m. and stayed until 6:30 p. m. He then went to Brenda Foster’s home. Her mother, brothers and sisters were home. He returned to Rita’s home about 10:30 p. m. Rita and her boyfriend walked him to the el station. The first time he had ever seen complaining witness was at the lineup, and he was in no way involved in this incident. He weighed 163 pounds and was about 5 feet 11 inches tall. He had a scar % to % inches long and % inch wide on his right cheek bone.

Rita Williams testified in rebuttal for the State that her mother was at home when defendant stopped by the first time.

Brenda Foster testified in rebuttal for the State that her father, brother and two sisters were at home when defendant visited her.

Mary Louise Foster, Brenda’s mother, testified in rebuttal for the State that on May 10, 1967, she worked from 4:00 p. m. to 11:45 p. m.; she did not see defendant on that day.

Defendant first contends that he was not proved guilty beyond a reasonable doubt, arguing that the complaining witness’ identification of him was not clear and convincing. He contends that the identification was deficient in that the complaining witness, prior to the lineup, was shown a book of pictures, including that of defendant, but was unable to identify his picture, and secondly, she was unable to recall any identifying marks on her attacker, while defendant had a scar on his right cheek.

While defendant’s identification must be proved beyond a reasonable doubt, our Supreme Court, in People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965), at pp 405-06, stated:

“Where the identification of an accused is at issue in a criminal case, we have constantly reiterated the rule that the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made.”

In that case, the court held that the identification was sufficient even though the complaining witness had previously failed to identify defendant in a lineup and although certain inconsistencies existed in the testimony of the complaining witness. The means of identification and the opportunity to observe the defendant at the time of the crime are factors to be considered in an identification. People v. McIntosh, 82 Ill App2d 90, 227 NE2d 76 (1967).

In the instant case, we see no reason to disturb the trial court’s finding that the identification was accurate. The trial judge specifically stated that he had observed all the witnesses, and found the victim to have been “a very truthful witness” who was “telling a very straight-forward story.” The victim had ample opportunity to observe her assailant. She first conversed with him, face to face, through the peephole of her door for a minute or two. Then he was in the apartment nearly twenty minutes, during which time she was engaged in constant struggle with him. The lights were on in the room where most of this struggle took place. While her physical description of the assailant was general, she gave a detailed description of his clothing. In People v. Oswald, 26 Ill2d 567, 187 NE2d 685 (1963), the court held that the failure of the victim to see defendant’s face at the time of the burglary would not of itself destroy the identification, where other factors, such as similar clothing, corroborate it. And in People v. Lawrence, 72 Ill App2d 1, 217 NE2d 120 (1966), the court upheld an identification no more specific than the one given here, holding that the description given was appropriate considering the circumstances.

The failure of the victim to identify defendant’s photograph does not, of itself, affect the identification. The photograph may not have accurately portrayed defendant. Moreover, an identification ordinarily is based upon animate observation of a defendant in his entirety, rather than an inanimate portrayal of his face. In People v. Arbuckle, 413 Ill 441, 109 NE2d 770 (1952), the court found that a trial judge was not required to disbelieve a victim because he was unable to identify defendant in the police station shortly after the crime was committed.

Nor did the complaining witness’ failure to notice defendant’s scar destroy her identification. Accord, People v. Carpenter, 71 Ill App2d 137, 217 NE2d 337 (1966). In that case, the scar on the cheek was 2 to 3 inches in length. In the case at bar, the scar was less than an inch long, and only % inch wide. While defendant in his argument characterizes the scar as being very prominent, it should be noted that the trial judge, while stating that he had a little astigmatism, was unable to see the scar in the courtroom. Under the circumstances of this crime, the failure of the complaining witness to notice the scar did not weaken her identification sufficiently to create a reasonable doubt of defendant’s guilt.

Defendant also argues that the testimony of a sole witness, weighed against his unimpeached alibi, could not warrant his conviction.

Credibility of witnesses and conflicting testimony is for the trial court to resolve, and the fact that defendant had numerical superiority in witnesses does not require belief in his alibi. People v. Jackson, 95 Ill App2d 28, 237 NE2d 858 (1968). Although the complaining witness was subjected to an extensive cross-examination, her testimony was consistent, and the trial court found that it was clear and convincing. On the other hand, defendant testified that Brenda’s mother was at her home when he was there on the evening in question, while she testified that she was at work. The trial court did not err in rejecting defendant’s alibi.

No negative inference that their testimony would be adverse to the State was raised by the State’s failure to call Rita Williams’ father and boyfriend.

We find no merit in defendant’s next contention that the lineup was so unfair and suggestive as to have deprived him of due process. The lineup at the police station consisted of five men. Except for one of the men, all were fairly close in age. They also had physical characteristics similar to those of defendant. At the time of the lineup, defendant was wearing the same clothes as he wore when arrested. While the victim stated that the jacket and trousers he wore during the lineup were exactly the same as he was wearing at the time of the crime, and that the other clothing was similar, that fact does not make the lineup so suggestive as to deprive defendant of due process. The record reveals clearly that the victim carefully selected defendant at the lineup only after she looked at his face and heard his voice.

Finally, defendant argues that reversible error was committed when the prosecutor, in closing argument, stated that Brenda Foster had testified that her mother was at home when defendant visited her on the evening in question. Although the witness originally had testified that her mother was home, she then went on to say that she had the wrong day in mind, and that on May 10, her mother was not at home. An improper argument unlikely to have affected the result will not require reversal. People v. Miller, 30 Ill2d 110, 195 NE2d 694 (1964). In the instant case, the misstatement of fact could hardly have affected the outcome of the case since defendant had testified twice that Brenda’s mother was present. The case cited by defendant in support of his contention that misstatement of facts by a prosecutor requires reversal, People v. Beier, 29 Ill2d 511, 194 NE2d 280 (1963), is distinguishable from the instant case. The misstatement of fact in that case concerned a key issue.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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