author: STOUDER, J.

text:
    George F. Margonis, Plaintiff-Appellee, v. Lawrence J. Rossi, Defendant-Appellant.
    Gen. No. 69-4.
    Third District.
    November 3, 1969.
    Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellant.
    Frank M. Wanless, of Morton, and Black, Black & Borden, of Peoria, for appellee.
   STOUDER, J.

Plaintiff, George Margonis commenced this action for an accounting in the Circuit Court of Tazewell County based on a partnership agreement between himself and Defendant, Lawrence Rossi. The case was referred to a Master in Chancery who after hearing evidence, filed his report finding $10,559 due from defendant Rossi to plaintiff Margonis. The trial court modified the report of the Master in part and decreed that $7,409 was due by defendant to plaintiff. Defendant has appealed from such decree and plaintiff has cross-appealed.

On May 2, 1955, the defendant, a physician and owner of a hospital in Hopedale, Illinois, entered into a written agreement with plaintiff, a bacteriologist, for the operation of a laboratory by the plaintiff on the premises of the defendant. Prior to the execution of the agreement, the plaintiff and defendant had several discussions concerning the details of the laboratory operation. Thereafter, a lawyer friend of plaintiff drafted the agreement in accord with plaintiff’s understanding of the terms, which agreement was signed by both parties.

The written agreement contained a short preamble providing for the establishment of Hopedale Hospital Laboratory to be managed by plaintiff on the premises of defendant. Paragraph 1 provides that plaintiff shall pay $100 rent to defendant, said amount being payable only out of income of the laboratory. The next paragraph provides that the plaintiff’s salary shall be $100 per week, payable only from the gross income of the laboratory. Paragraph 3 provides for the payment of fixtures, equipment and supplies from the income of the laboratory and also provides for the reimbursement of monies advanced for the purchase of fixtures, equipment and supplies. The next paragraph provides for management of the laboratory by plaintiff and the furnishing of premises and facilities by defendant. Paragraph 5 provides that after deducting from the income all expenses of said laboratory including rent, salary of plaintiff, payments on equipment, fixtures and supplies (including reimbursements), operating expenses and salaries, the net income shall be distributed equally between plaintiff and defendant. Paragraph 6, the last paragraph, provides for termination on May 2,1960.

Plaintiff operated the laboratory until July 31, 1960. The fees for laboratory services were billed and collected by the business manager of the hospital, who also paid the expenses of the laboratory. After about a year and a half, plaintiff asked for more money and thereafter he received amounts varying from $125 per week to $200 per week. During the period of the operation of the laboratory by plaintiff, no accounting was ever made respecting the receipts and disbursements of the laboratory by defendant, and plaintiff at no time during such period requested any such accounting.

With respect to the accounting, the Master’s report found the gross receipts of the laboratory to be $107,156. The expenses of the laboratory were as follows: rent, $6,300; supplies and expenses, $8,099; salaries, $10,299; depreciation, $696; salary to plaintiff, $27,300. The total of such deductions was $22,665, which when deducted from gross receipts indicated a profit of $54,491. Plaintiff’s one-half share equaled $27,245. The Master concluded that plaintiff was entitled to receive $27,245 as his share of profit, and $27,300 as salary for a total of $54,545. During the period plaintiff had received $44,-761, leaving a balance due Margonis of $9,784. To this was added $775 for monies advanced for the purchase of equipment and not reimbursed, making $10,599 the final total due.

The trial court, in considering the Master’s report, adopted and approved such report as to all the items except one, namely, the deduction for rent. By deducting the item for rent from the receipts, the defendant was, in effect, being charged for one-half of the rent. The trial court concluded that such was not intended by paragraph one of the contract and accordingly, the court modified the amount found due by the Master.

Both the Master and the court concluded that the agreement is a partnership agreement and that the relationship between the parties is that of partners. Defendant does not dispute this conclusion in this court. Consequently, the rights and liabilities of the parties, as well as the propriety of the court’s decree, must be viewed in this context.

Defendant insists that the intention of the parties cannot be ascertained from the written contract and alternatively that the decree is contrary to the intentions of the parties.

Neither the plaintiff, the defendant, nor the attorney who drafted the agreement, were accountants. An examination of the agreement reveals ineptness of language, particularly when the provisions or words are defined in technical accounting terms. The meaning of “income,” “gross income,” or “net income” is not consistent or precise, if such terms are viewed in their technical accounting sense. Since it is the intention of the parties with which we are primarily concerned, it is the meaning of the language as understood by the parties which is determinative of the issue. See Coney v. Rockford Life Ins. Co., 67 Ill App2d 395, 214 NE2d 1. Defendant emphasizes the possible inconsistencies which might arise if the accounting terms were applied technically, but in our view of this case, the argument is invalid because there is no indication that the defendant in particular, or in fact either of the parties, used such terms in their technical sense. We believe the language of the agreement amply supports the Master’s general conclusion that the parties intended to divide the proceeds after payment of the expenses, including rent and salary.

This is not a case where evidence of the partnership business is lacking. There is ample evidence of the receipts and disbursements during the period involved and therefore, Fineman v. Goldberg, 329 Ill 507, 161 NE 57, Donaldson v. Donaldson, 237 Ill 318, 86 NE 604, and Rogers v. Guthrie, 264 Ill App 525, authorities relied upon by defendant, are inapplicable.

We also believe that the deduction of plaintiff’s salary before dividing the proceeds is in accord with the agreement of the parties and is not contrary to any principle of law. The Uniform Partnership Act, c 106%, § 18(f), Ill Rev Stats provides, “The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules: (F) No partner is entitled to remuneration for acting in the partnership business, . . . .” Defendant contends the foregoing section precludes deduction of plaintiff’s salary before division of profits. The significant language of such section is “. . . subject to any agreement between them . . . ,” and it follows that there is no general prohibition against compensating partners for services. It is not uncommon for partnership agreements to provide, as does the agreement in the instant case, for the modification of a percentage sharing agreement in accord with the different situations or abilities of the partners. ■

We also find no merit in defendant’s argument that the parties must be presumed to have intended a different result than that reached by the Master in Chancery because of the Internal Revenue Code. If, as we have already held, the parties did not use accounting terms in their technical sense, how can it be said that they entered into the agreement to implement a provision of the Internal Revenue Code? The Code, which requires the payments be “guaranteed” in order that they have certain consequences, is of no assistance in the instant case. In Foster v. United States, 221 F Supp 291, affirmed 329 F2d 717, cited by defendant, the partnership agreement involved clearly described the periodic payments as withdrawals of anticipated profit, and not even the taxpayer made any contention to the contrary.

In our view, there is nothing in the agreement from which it can reasonably be inferred that the parties intended that rent, payable to defendant, or salary, payable to plaintiff, were to be treated differently and accordingly, we believe that the Master’s determination based on similar treatment of such items is the proper determination.

Defendant also argues that the decree is erroneous because it is contrary to indisputable evidence. Each party presented the testimony of an accounting expert. Each party also presented an exhibit summarizing the financial transactions of the partnership. There are some differences in the totals of deductible items between the two accounting exhibits.

When counsel for defendant presented defendant’s accounting exhibit, he indicated he was aware that he had not presented a proper foundation, but thought as a matter of convenience the exhibit could be considered in the absence thereof. Plaintiff’s counsel objected to the admission of such exhibit in the absence of a proper faun-. dation. Defendant’s accounting exhibit was delivered to plaintiff’s counsel with the indication that the two exhibits should be compared and reconciled, if possible. The hearing ended with the understanding that if plaintiff’s counsel would withdraw his objection to the admission of the accounting exhibit, the exhibit would be admitted and defendant would rest. Several days later, plaintiff’s counsel notified the Master that on the basis of the previous understanding, it would withdraw its objection to the admission of the exhibit. Thereupon, the presentation of evidence was considered complete and the Master made his determination, which determination accepted the figures in plaintiff’s exhibit rather than defendant’s exhibit.

Defendant argues that such determination is erroneous because it failed to honor a stipulation concerning the correctness of defendant’s exhibit. Furthermore, according to defendant, his exhibit should have been accepted as true as a matter of law because plaintiff’s exhibit was prepared therefrom.

We find no merit in either of defendant’s arguments. No stipulation was entered into regarding defendant’s exhibit. Withdrawing an objection to an exhibit because of lack of proper foundation is not a stipulation and cannot be enlarged to warrant the conclusion that the parties have thereby agreed that the facts contained in the exhibit are true. Defendant’s additional assertion that plaintiff’s exhibit was prepared from defendant’s exhibit is not supported by the record. The accounting exhibits were prepared from the same sources, i. e., books and records of defendant and audits thereof. They were not prepared from one another. Accordingly, we find no error in the Master’s decision to base his findings on the totals indicated in plaintiff’s exhibit.

For the foregoing reasons the decree of the Circuit Court of Tazewell County is affirmed in part, reversed in part and remanded with directions that the decree be modified to conform with the report of the Master in Chancery.

Decree affirmed in part, reversed in part and remanded with directions.

ALLOY and RYAN, JJ., concur.


source: Caselaw Access Project

author: RYAN, J.

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. John C. Hayn, Defendant-Appellant.
    Gen. No. 69-15.
    Third District.
    November 4, 1969.

      Mathis, Slavens, Parsons & Hatcher, of Peoria, and Gerald W. Smith, of Pekin, for appellant.
    Bernard Oltman, State’s Attorney of Tazewell County, of Pekin (Jay H. Janssen, Assistant State’s Attorney, of counsel), for appellee.
   RYAN, J.

A jury found the defendant guilty of the offense of theft and the court sentenced him to the Illinois State Penitentiary for not less than four nor more than eight years. This appeal has followed.

The indictment charging the defendant with theft is in the following language:

“That on the 4th day of November, 1967, in said County of Tazewell, at 184 Sapp Street, in the City of Pekin, Illinois, JOHN C. HAYN committed the offense of theft in that he knowingly obtained control over six (6) American Express Company money orders, having a value exceeding One Hundred Fifty Dollars ($150.00), the property of WESLEY ANDERSON, knowing that the said six (6) American Express money orders had been stolen from WESLEY ANDERSON by another in such manner as to deprive WESLEY ANDERSON permanently of the use and benefit of said property, in violation of Paragraph 16-1 (d), Chapter 38, Illinois Revised Statutes.”

The defendant moved to dismiss the indictment. The trial court denied the motion. A jury trial followed with the above indicated result.

Chapter 38, § 16-1, Ill Rev Stats 1967, insofar as it is pertinent here provides as follows:

“Theft. A person commits theft when he knowingly:
“(a) Obtains or exerts unauthorized control over property of the owner; or
“(b) Obtains by deception control over property of the owner; or
“(c) Obtains by threat control over property of the owner; or
“(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; or
“(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
“(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.
“Penalty.
U 99
• • • •

It should be noted that the above-quoted section is twofold. Subsections (a), (b), (c) and (d), describe the act which may be involved in the offense of theft and subsections (1), (2) and (3) describe the mental state of the perpetrator of the act or his conduct from which mental state is presumed, which must accompany the act. This section provides that the act must be done knowingly. The act and the mental state must coincide. The offense of theft is committed when any one of the acts listed in the first four subsections coincides with any one of the mental states or actions indicating mental state listed in the last three subsections. SHA c 38, § 16-1, Committee Comments.

The indictment under consideration charges an act by the defendant under subsection (d) of section 16-1; that is, that the defendant “committed the offense of theft in that he knowingly obtained control over six (6) American Express Company money orders, having a value exceeding One Hundred Fifty Dollars ($150.00), the property of WESLEY ANDERSON, knowing that the said six (6) American Express money orders had been stolen from WESLEY ANDERSON by another.”

However, after alleging the act committed by the defendant the indictment fails to allege any mental state of the defendant or any conduct of the defendant indicating his mental state. Following the allegations of the act the indictment carries on by stating that the items had been stolen from Wesley Anderson by another “in such a manner as to deprive Wesley Anderson permanently of the use and benefit of said property. . . .” The allegation of the manner in which they were stolen by another other than the defendant relates to the mental state of the person who originally stole the property from Wesley Anderson but says absolutely nothing about the mental state of this defendant when he received the stolen property. It is possible for the act of this defendant in receiving the stolen property as charged to be just as consistent with this defendant’s intention to return the stolen property to the owner as to deprive him permanently of the use or benefit thereof.

We do not believe that the use of the word “knowingly’ in this indictment indicates any intent on the part of this defendant to deprive the owner permanently of the use or benefit of such property. We are of the opinion that the word “knowingly” as used in this indictment relates to the act of the defendant in receiving the property. It says nothing about his intent with regard to the property after he had received it. It does not charge that he knowingly used, concealed or abandoned the property in such a manner as to deprive the owner permanently of its use or benefit. It is provided in the statute that such an allegation would indicate conduct of the defendant from which the necessary mental state could be presumed. Such conduct on the part of this defendant was not charged.

In order to charge a violation of c 38, § 16-1, Ill Rev Stats there must be alleged an act by the defendant and a mental state of the defendant. An indictment which fails to allege one of the mental states listed in section 16-1 or one of the acts listed indicating mental state is fatally defective. People v. McCormick, 92 Ill App2d 6, 235 NE2d 832.

In the absence of the allegation in the indictment of the necessary intent, the indictment failed to charge the defendant with an offense. People v. Pronger, 48 Ill App2d 477, 199 NE2d 239. Where the indictment is-insufficient to charge an offense, the reviewing court must reverse. People v. Dawdy, 87 Ill App2d 424, 230 NE2d 883.

In view of the above it is unnecessary for us to consider the other points that have been raised by the defendant on this appeal.

Reversed.

STOUBER, P. J. and ALLOY, J., concur.


author: MR. JUSTICE MeCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jesse Zepeda (Impleaded), Defendant-Appellant.
    Gen. No. 52,720.
    First District, Second Division.
    November 4, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MeCORMICK

delivered the opinion of the court.

Jesse Zepeda, defendant, was indicted for the crime of murder. On June 20,1967, at a bench trial and plea of not guilty, the court found the defendant guilty of murder as charged and sentenced him to be committed to the Illinois Youth Commission. This appeal raises the question of the propriety of the trial court’s ruling admitting into evidence over objection a confession of the defendant.

At the time of the alleged offense the defendant was a minor, sixteen years old. He made a pretrial motion to suppress a confession, but the trial court overruled the motion.

The defendant’s main contention is that he did not receive adequate warning concerning his constitutional rights and that when he did make a statement to the police, and later to the State’s Attorney’s Office, he had not knowingly waived any of his rights. He argues that anything said by him to the police or the State’s Attorney should have been suppressed, and that the trial court therefore committed reversible error by admitting such statements into evidence.

The facts are that a certain Gabriel Moreno was found dead, his body having been placed under a porch. It was stipulated that if Dr. Kearns of the Coroner’s Office were called upon to testify he would state that he examined the body of Gabriel Moreno on March 7, 1967, and that it was his opinion that the death was caused by hemorrhage resulting from multiple stab wounds of the face and neck; that the lethal weapon appeared to have been a broken bottle.

Jesse Zepeda and his codefendant, Larry Zavala, were arrested on March 9, 1967, and taken to Area 2 police station on Cottage Grove Avenue where they were placed in separate rooms. No juvenile officer was called until after statements had been given and the boys were being taken to the State’s Attorney’s Office at about 3:30 p. m. The arresting officer testified that it was standard procedure to call a juvenile officer immediately after such an arrest, but he admitted that the procedure was not followed in the instant case and that no juvenile officer was present at any of the interrogations of the boys.

Two statements given by the defendant — one to the police and one to the State’s Attorney — were substantially the same, and both statements placed the blame for the actual killing on Zavala, although the defendant admitted dragging the deceased across an alley after he had been beaten and before he was stabbed. The defendant also admitted standing by and watching Zavala kill the victim with a broken bottle, although a statement taken from Zavala claimed that the defendant had killed Moreno. A severance had been granted so that Zavala’s statement was not introduced at defendant’s trial.

The defendant maintains that his statement to the police officers was obtained illegally and that any subsequent statement was also tainted with illegality. The defense has concluded that the defendant’s statements should have been suppressed and that the trial court committed reversible error in admitting those statements into evidence.

At the pretrial hearing on the motion to suppress, William Boreczky, the arresting officer, testified for the State concerning both defendant and Zavala. Before the hearing an agreement had been reached between the State and the parties-defendant that the motion would be joint, with the understanding that if it were denied there would be a severance in the trial of the defendants. The officer said that when he took the written statement from the defendant he warned him of his constitutional rights, and that he heard the Assistant State’s Attorney give the required warning to the two boys at the time the second statement was taken. The documents containing questions and answers were signed by the defendant after he was asked to verify them. The following was included in the statement given to the police officer:

Det. Boreczky: “Do you realize that you have the right to remain silent, if you choose not to remain silent anything you say or write can and will be used as evidence against you in court: you have a right to consult a lawyer before any questioning, and you have a right to have the lawyer present with you during any questioning; you not only have a right to consult with a lawyer before any questioning, but, if you lack the financial ability to retain a lawyer, a lawyer will be appointed to represent you before any questioning, and you may have the appointed lawyer present with you during any questioning. Do you fully understand what I have stated to you?”
Zepeda: “Yes.”
Boreczky: “Do you still wish to give us this statement?”
Zepeda: “Yes.”
Boreczky: “Can you read and write the English language, and how far did you progress in school?”
Zepeda: “Yes, I can, and I went to Bowen High School and dropped out in my second year.”

The following was included in the later statement given to the State’s Attorney:

Q. “Jesse, before I ask you any questions, before you might give me any answers, I want first to caution you and warn you of certain constitutional rights. First, you have an absolute right to remain silent at this time, do you understand that? Secondly, anything that you might say now might be held against you at a later time in a court proceedings, do you understand that?”
A. “Yes.”
Q. “Thirdly, under the Constitution of the United States you have an absolute right to consult with an attorney and have an attorney present before you might make any statement or make answers to any questions, do you understand that?”
A. “Yes.”
Q. “Fourthly, if you cannot afford an attorney and you don’t have the financial resources to hire one, under the law an attorney must be provided for you before you make any statement or answer any questions, do you understand that?”
A. “Yes, I do.”
Q. “Knowing these things, do you now wish to waive these rights understandably and intelligently and make a statement and answer my questions?”
A. “I will make a statement.”
Q. “And do you further waive these rights which I just explained to you, knowing that no promise of benefit is made to you or has been made to you, is that correct?”
A. “Yes.”
Q. “And further that no threats have been made against you?”
A. “Yes.”
Q. “And you now wish to waive these rights which I told you about and make a statement, is that correct?”
A. “Yes.”

When the Assistant State’s Attorney had completed the questioning he said, “Jesse, if you read the statement and find it to be a true and correct copy of what you have just said, will you sign the statement?” The defendant agreed and signed the statement.

Officer Boreczky testified that prior to the written warning he had explained to the defendant his constitutional rights, and that the defendant affirmed that he fully understood his rights; that he did not want to call a lawyer and that he would make a statement. The testimony disclosed that the defendant had been questioned about half an hour before agreeing to make his first written statement.

The defendant testified on his own behalf that he had asked to speak to his mother when the police officer started questioning him. He admitted hearing a statement regarding constitutional rights, but alleged that one officer was making the statement to another and not to him; that he was not asked if he wanted a lawyer; that although he received a statement of his rights at the State’s Attorney’s Office, he had not understood its meaning. He said he could read and write and admitted signing his name to the statements, but that he had only been allowed to “glance” at the one given the State’s Attorney before signing it.

Officer Sullivan, who had typed defendant’s first statement, testified that Officer Boreczky had informed the defendant of his constitutional rights two or three times before taking his statement; and that as soon as the defendant was informed of his rights he was charged with murder.

The Assistant State’s Attorney, who took statements from both boys, testified that he read each word of each statement to the boys while they followed the reading from a carbon copy; that he questioned each boy if what he read to them was exactly in accord with their answers to the questions asked. Each boy indicated the readings were accurate and each boy signed his statement.

The defendant argues that testimony from State officials that the confession was voluntary is not adequate here because “surrounding circumstances” throw doubt upon the authenticity of the voluntary character of the statements in dispute. After stating that a confession was essential in the case if a conviction were to be obtained, because the evidence was very weak, the defendant said: “The police set out in the beginning to extract a confession from the defendants without any regard to our constitutional safeguards.”

We do not feel that the facts support the conclusion of the defendant. The State has presented a strong case indicating that the defendant did receive the necessary warnings and that he knowingly and intelligently waived his privileges. There was consistent testimony that the warnings were explained to the defendant several times prior to his first statement, and the written statement which the defendant signed contained the warnings. The defendant admitted that he can read and write; there is no evidence indicating that he was of subnormal intelligence, nor does defendant make any serious allegation of physical intimidation.

Ill Rev Stats 1965, c 37, § 703-2 became effective on January 1, 1966, and was applicable to this case since defendant was arrested on March 9, 1967. That section provides:

(1) A law enforcement officer who takes a minor into custody without a warrant under Section 3-1 shall immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor’s care or the person with whom the minor resides that the minor has been taken into custody and where he is being held; and the officer shall without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes in the county of venue or shall surrender the minor to a juvenile police officer in the city or village where the offense is alleged to have been committed. The minor, if not released, shall be delivered without unnecessary delay to the court or to the place designated by rule or order of court for the reception of minors.

At the time of his arrest the defendant was sixteen years old, and the above provision was applicable to him. The section requires two things of law enforcement officers who have taken a minor into custody: 1) They must “immediately” make a “reasonable effort” to notify the legal guardian of the juvenile that he is in custody and where he is being held; and 2) They have an affirmative duty to deliver the minor to the nearest juvenile officer.

The State says that People v. Hester, 39 Ill2d 489, 508, 237 NE2d 466, disposes of this issue, and the State also says: “Nevertheless, the police here complied with that section by leaving an ‘identification card’ with a relative of the defendant at the time of arrest.” The allegation that the police complied with the section is wholly inadequate for several reasons. First, the requirement is a “reasonable attempt to notify the parent or other person legally responsible for the minor’s care. . . .” The identification card mentioned by the State was an arresting officer’s card which he purportedly gave to a fourteen-year-old brother of Zavala. It would be a considerably strained interpretation of the statutory language to conclude that Officer Boreczky made a “reasonable attempt to notify” the defendant’s parents by giving a police identification card to Zavala’s young brother.

Further, more was required of the officer than making a reasonable attempt to notify defendant’s parents, since the statute also imposed a definite duty on law enforcement officers to transfer custody of a minor “without unnecessary delay” to juvenile police officers. According to the State’s own testimony, there was no attempt to immediately contact a juvenile officer; instead, the boys were taken to Area 2, Homicide, and not to a juvenile detention center. A juvenile officer was not contacted until after defendant had already given the police a signed statement.

There was dispute over whether or not defendant had asked to call his mother. He maintains that he had so requested, while the State’s witnesses deny there had been any such request. Under the statutory provision, however, it would appear that the defendant would not be required to make any such request; it was the duty of the police to have made a reasonable effort to contact the boys’ parents or legal guardians.

The Hester case is wholly beside the point. The issue there was whether the defendant’s confession was inadmissible on the ground that it had been made to a juvenile officer. Ill Rev Stats 1965, c 37, § 702-9, specifies that if a juvenile confesses to the juvenile court “or any officer thereof,” such confession is inadmissible in a court other than the juvenile court. The confession in that case had been made to police officers and the Assistant State’s Attorney; the question was whether under those facts such officers were juvenile officers within the intendment of the provision. That question has no relation to the one here presented; namely, whether defendant was illegally detained, and if so, whether that detention would have rendered his confession inadmissible.

In In re Orr, 38 Ill2d 417, 231 NE2d 424, the Supreme Court considered section 703-2, c 37, Ill Rev Stats 1965. A juvenile had freely confessed to two police officers on the way to the police station, apparently relieving his mind of the burden created by his having committed the crime for which he was being investigated. His statement was admitted into evidence, and on appeal defendant urged that such admission had violated his constitutional rights and the notice provisions of the Juvenile Court Act. The court said at 425: “. . . it is apparent that this provision does not contemplate the giving of notice before the juvenile arrives at a place where he will remain for a significant period of time.” Although Orr had been detained without the officers having complied with the requirements, the court found no reversible error because the boy had voluntarily confessed prior to his arriving at the place of detention. The court found that after one had already confessed voluntarily, illegal detention should not relate back to render the confession inadmissible. It would appear that the court in Orr would have reversed the judgment had the confession been made during the time of the illegal detention instead of prior to it. In the case before us the statement was given the police during the time of the illegal detention, and consequently, was erroneously admitted.

This conclusion is substantiated when section 703-2 is read in conjunction with 702-9(1), as the latter provides in pertinent part:

Neither the fact that a minor has been the subject of proceedings under this Act nor any confession, admission or statement made by Mm to the court or to any officer thereof before his 18th birthday is admissible as evidence against him or his interests in any other court or proceeding, .... [Emphasis supplied.]

Section 703-2 requires that a minor be turned over to the custody of a juvenile officer without delay. Once this has been done, any statement made by the minor to the juvenile officer would be inadmissible in any court other than those functioning under the auspices of the Juvenile Court Act. In the present case, had the police officers turned the defendant over to the custody of juvenile officers, as the statute directs, any statement he might have made to such officers could not be used as evidence against him in the criminal court under section 702-9(1). This section would be subverted if this court were to allow statements admitted into court which were given police officers in violation of section 703-2, when such statements would have been rendered inadmissible under 702-9(1) if police had complied with section 703-2.

We have already pointed out that we do not accept defendant’s argument that his constitutional rights were infringed. The State has presented adequate proof that the required warnings were given and understood, then knowingly and intelligently waived. We want to make it clear that the defendant was deprived of no constitutional rights when the statement was admitted. We conclude that the statement should have been excluded because the State’s statutes call for its exclusion. The statutes here involved do not implement constitutional requirements, but go beyond those requirements and reflect a policy consciously chosen by our legislature to give added protection to minors. A violation of the requirements is not tantamount to violation of constitutional directives. When the statement was admitted into evidence there was no due process violation as was involved in Lynumn v. Illinois, 372 US 528, where the court found that the admission was coerced. In the instant case, there was only a violation of legislative directives which far exceed constitutional requirements.

In Lynumn the United States Supreme Court rejected the argument that the introduction into evidence of the coerced confession was harmless error, noting that the only other evidence of substance against the petitioner was the testimony of the person who had “set up” the petitioner, which person was a twice-convicted felon who admitted it was in his self-interest to cooperate with the police. The court quoted with approval from Payne v. Arkansas, 356 US 560, to the effect that even though there is sufficient evidence, apart from the coerced confession, to support a guilty verdict, the admission of the coerced confession into evidence over objection violated the due process clause of the Fourteenth Amendment, thereby vitiating the judgment.

In the present case, however, the complained-of confession was not coerced or obtained in any manner violative of defendant’s constitutional rights. The additional rights granted by Illinois statutes are not a part of due process; therefore, when the confession was admitted into evidence it was simply a violation of State policy, not due process. Under these circumstances, if there was sufficient evidence apart from the statement to support the judgment of conviction, the admission into evidence of the statement would be harmless error.

The defendant chose to take the stand in this case, and admitted to being present during Zavala’s fight with Moreno. The defendant testified: “So then we were going to leave and Zavala told me he was going to kill the guy, ‘Help me carry him,’ and I said ‘No.’ And he said, ‘You are involved as much as I, and if you don’t he is going to tell on me.’ ” When the defendant was asked what he then did, he said, “So, I was scared, you know, I just picked him up and — we started to pick him up and carry him.” Defendant further admitted to throwing Moreno on the ice and said, “Zavala went in with the broken bottle and came out about ten or fifteen minutes later and said he killed the guy.” The two then left the scene.

On cross-examination the defendant admitted that he heard Zavala say he was going to kill Moreno; that he did not call the police after leaving the body; that he had not tried to take away the broken bottle from Zavala; that he did not call for help; that he saw Zavala’s hand moving up and down over Moreno’s body, and that he went over and looked at the body after the cutting.

The question of the accountability statute was vigorously argued before the trial judge. Defense counsel argued that the defendant had done nothing sufficiently affirmative to allow him to be found guilty. However, the defendant admits dragging Moreno across the alley and standing by watching him murdered without attempting to stop Zavala. In People v. Bracey, 110 Ill App2d 329, 249 NE2d 224, the court discussed the accountability statute and cited with approval People v. Rudecki, 309 Ill 125, 140 NE 832, where it was held that if there is a common design to do an unlawful act, whatever occurs in the furtherance of the common design is the act of all, and the court said at page 129: “A shot fired by one member of the mob was a shot fired by all of them, and all of them must answer for the result.”

In the Accountability Act, Ill Rev Stats 1965, c 38, § 5-2, it is provided:

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

In the instant case the trial court’s error in admitting the statement did not involve an infringement of the constitutional rights of the defendant, and we find the error was harmless since independent evidence amply supports the conviction. The defendant elected to testify, perhaps in the hope that he could convince the trial court that he was a believable person, but in his testimony he made damaging admissions sufficient to justify the trial court’s judgment. However, had there been no independent evidence to support the conviction, the case would have been reversed on the basis of the State’s violation of section 703-2.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: GOLDENHERSH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John E. Gordon, Defendant-Appellant.
    Gen. Nov 68-134.
    Fifth District.
    November 5, 1969.
    Rehearing denied January 2, 1970.

      D. A. McGrady, McGrady & Madden, of Gillespie, for appellant.
    A. Paul Rosche, State’s Attorney, of Hillsboro (Otto E. Funk, of counsel), for appellee.
   GOLDENHERSH, P. J.

Defendant, John E. Gordon, was tried by jury in the Circuit Court of Montgomery County and convicted of the offense of Involuntary Manslaughter (c 38, § 9-3, HI Rev Stats 1967). The court denied motions for a new trial and in arrest of judgment, denied defendant’s petition for probation, heard evidence in aggravation and mitigation, and sentenced defendant to the Hlinois State Penitentiary for not less than 2, nor more than 7 years.

The indictment is in 9 counts. There are 8 counts charging Murder (c 38, § 9-1, HI Rev Stats 1967), 5 allege an intent to kill or do great bodily harm to Allan Dean Gordon, and 3 allege an intent to kill or do great bodily harm to Deanna Gordon. The ninth count, charging Involuntary Manslaughter, accuses defendant of reckless acts likely to cause death or great bodily harm to Deanna Gordon or Allan Dean Gordon. An order of Nolle Prosequi was entered as to two counts of Murder, and the case was submitted to the jury on the remaining six counts of Murder and one count charging Involuntary Manslaughter. The jury found the defendant not guilty of Murder.

The victim of the homicide was defendant’s two-year-old son, Allan Dean Gordon. Dr. J. Robert Rebillot testified that the boy died of a gunshot wound to the right portion of his skull. He saw him in the emergency room St. Francis Hospital in Litchfield. The defendant was holding the boy, was in a state of hysteria, and would not release the child. Litchfield police officers forcibly took the child from defendant’s arms, Dr. Rebillot administered thorazine, and defendant was then shackled to a wheel chair by a strap around his waist, and shackles on his wrists and ankles.

Ernest Felkel, Chief of Police in Litchfield, testified that while he was in the emergency room, after defendant was shackled, Deanna Gordon came over to where defendant was sitting and defendant said “Get the hell away from me and leave me alone.” She replied “It wasn’t your fault.” The witness identified photographs of the interior of defendant’s home, and described the floor plan, furnishings and the bedroom in which the shooting occurred. He stated there was a 16-gouge shotgun lying in a clothes closet with its muzzle pointing north, and the stock pointed toward the bed.

Robert Hough, a funeral director in Raymond, testified that in response to a call he went to the Walsh farm. He saw defendant in an automobile holding his child. Defendant would not release the boy but agreed to ride in the ambulance, holding the child, and was driven to the hospital in the ambulance.

Harry Gerard, Mr. Hough’s helper, was with him at the time. Both he and Hough testified that defendant struck Hough with his fist prior to agreeing to go to the hospital.

Felkel, Hough and Gerard all expressed the opinion that defendant was intoxicated.

Jerome S. Keller, Sheriff of Montgomery County, testified that he saw defendant at the hospital, went to his home, later saw defendant at the county jail, advised him as to his rights in accordance with “Miranda,” defendant waived his right to remain silent and told him he had gone to work the day before the occurrence, the truck he was to drive broke down, he worked on it a portion of the day, started drinking and returned home at 4:00 a. m. on January 18, 1968, the date of the shooting, in an intoxicated condition. He accused his wife, Deanna, of having an affair, became angry, broke a lamp and end table, left home at 5:00 a. m. and returned at noon. He heated some soup and wieners, woke Allan Dean and brought him to the table in the kitchen. He did not remember getting the gun down, remembered Deanna’s asking him to “put the gun up for the children’s sake,” the gun went off and he cannot explain why. He had threatened his wife on past occasions but did "not remember threatening her that day. The shell in the magazine of the shotgun had been fired.

Upon motion of the State’s Attorney, and over defendant’s objection, the court called Deanna Gordon as the court’s witness. In response to the court’s interrogation, she testified defendant came home on the morning in question at 4:00 a. m., left, and returned home at noon. When he came home at noon she was asleep on the couch. He asked if the children had eaten, Allan woke up, defendant brought him to the table, Brent, their younger child, awoke and she brought him to the table, defendant prepared lunch for himself and the children, defendant went into the bedroom, she started into the bedroom and as she pulled back the curtain between the kitchen and the bedroom, the gun went off. Some of the pellets struck her hand. Defendant was picking Allan up, they got in their car, she driving, defendant holding Allan in the back seat. She stopped at the Walsh farm and asked them to call an ambulance. At the hospital she was given a shot, defendant was shackled to a wheel chair, he asked how she felt, and “I told him I didn’t blame him for what happened. I knew it was an accident.”

Upon cross-examination by the State’s Attorney, she testified her husband left home at 5:00 a. m. on January 17, 1968, to go to work and returned highly intoxicated at 4:00 a. m. the next morning. He told her people had been talking about her going out with somebody else. Upon being asked by the State’s Attorney if this was true, she replied “Well, yes.” He did not threaten her. He left and returned at noon. She could not say what attracted her to the bedroom, but as she pulled back the curtain to enter, the gun went off. Defendant was lying on the bed with the gun across his body, the barrel toward the door she entered., Allan was at the opposite end of the bed. Upon being shown the statement she had signed she did not recall having said that she had asked defendant to “put up the gun for the children’s sake.” She did not recall having stated she “heard a clicking noise like the gun being pumped.” Defendant had threatened to shoot her on several past occasions, but not on that day.

On cross-examination by defense counsel, she stated she had not taken prior threats seriously, and his demeanor when he said it was “mostly he was just joking.” She had not been in fear of his carrying out the threats. He was fond of the children, and particularly devoted to Allan. Defendant had beaten her on past occasions. In recent weeks they “were getting along fine.”

Mr. Keller, recalled by The People, testified Mrs. Gordon had, in fact, made the statements about which she was interrogated.

Defendant testified that after having lunch he noticed the gun rack in the bedroom was hanging loose, so he fixed it. He put two guns back in the rack, and was looking at the shotgun. He does not remember a shot, and the next thing he remembers is seeing Allan on the floor. He did not know anyone was in the room with him. He did not pull the trigger, had no intention of discharging the gun, and does not know how it went off. The next thing he remembers is being told by Dr. Rebillot that the boy was dead.

As his first ground for reversal, defendant contends that the offenses of Murder and Involuntary Manslaughter “are incompatible and cannot emerge from one factual situation.” He argues intent is not an essential element of Involuntary Manslaughter, and it is unjust and unfair to require a defendant to simultaneously defend against charges, one requiring proof of intent, and the other reckless performance of an act likely to cause death.

Prior to enactment of the Criminal Code of 1961 (c 38, § 1 et seq., Ill Rev Stats) an indictment for murder involved all other grades of homicide, and included a charge of manslaughter. The People v. Lewis, 375 Ill 330, 335, 31 NE2d 795. As defined in the Criminal Code, the common element of the offenses of Murder and Involuntary Manslaughter is the killing of an individual without lawful justification. The difference is that for the homicide to be murder there must be present the element of intent, knowledge, or attempt to commit, or commission of a felon, while in Involuntary Manslaughter the acts, whether lawful or unlawful, must be such as are likely to cause death or great bodily harm and must be done recklessly. The Criminal Code contains the following definition of Included Offense:

“Included Offense” means an offense which
“(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or. . . .”

“Recklessness” as defined in section 4-6 is a less culpable mental state than “Intent” (§ 4-4) or “Knowledge” (§ 4-5), and Involuntary Manslaughter is clearly an “included offense” in an indictment charging “Murder.” Offenses based on the same act may be joined (c 38, § 111-4(a)) and differences in mental state required for the offenses do not prevent joinder.

Defendant contends the court refused to permit him to interrogate the witness Felkel as to whether he had been convicted of a felony. Only convictions of infamous crimes may be brought out upon cross-examinatian of a witness, The People v. Birdette, 22 Ill2d 577, 177 NE2d 170, and the objection to the question in the form in which it was asked was properly sustained.

Defendant contends the court erred in calling Deanna Gordon, over defendant’s objection, as the court’s witness. The record shows that after Dr. Rebillot testified the State’s Attorney advised the court that The People must rely upon the testimony of Deanna Gordon, that she was the only eyewitness, “she is hostile to us,” he was unable to vouch for her testimony, and moved that she be called as the court’s witness. The State’s Attorney filed an affidavit in support of the motion in which he stated that Deanna Gordon, immediately after the occurrence, talked with the sheriff and appeared to be cooperative, she became progressively more hostile, he had difficulty examining her at a hearing on defendant’s motion to be admitted to bail and before the grand jury, he had observed public displays of affection between her and the defendant, without her testimony justice might not be accomplished, and the ends of justice require she be called as the court’s witness. The court reserved its ruling at that time, and subsequently allowed the motion, and called her as the court’s witness.

Under section 155-1 of the Code of Criminal Procedure (c 38, § 155-1, Ill Rev Stats 1967) spouses may testify for or against each other except that neither may testify as to any communication or admission made by either to the other, or as to any conversation between them during coverture, except under enumerated circumstances not here present. In The People v. Moriarity, 33 Ill2d 606, 213 NE2d 516, the court called the defendant’s wife as the court’s witness, and on review the Supreme Court said at page 615:

“The practice of the court’s calling a witness at the request of the prosecution in a criminal case was first enunciated in Carle v. People, 200 Ill 494, where the court approved the calling of an eyewitness to a crime for whose veracity the State’s Attorney could not vouch. It was later stated in People v. Cardinelli, 297 Ill 116, that the purpose of the practice was to prevent a miscarriage of justice by having an eyewitness to a crime, for whose veracity neither party will vouch, fail to testify. And while subsequent decisions have held that the practice is not limited to the calling of eyewitnesses (People v. Touhy, 361 Ill 332, 350; People v. Siciliano, 4 Ill2d 581, 590) every decision which has touched upon the subject has counseled that the practice should be sparingly used and restricted to cases where it is shown there might otherwise be a miscarriage of justice. (People v. Johnson, 333 Ill 469; People v. Laster, 413 Ill 224; People v. Bennett, 413 Ill 601; People v. Robinson, 14 Ill2d 325). Further, as indicated in People v. Siciliano, 4 Ill2d 581, 590, a proper foundation must be laid for the calling of a court’s witness, which would necessarily consist of the reasons why the party desiring the witness cannot vouch for his veracity, and showing that the testimony of the witness will relate to direct issues and is necessary to prevent a miscarriage of justice. See also: People v. Touhy, 361 Ill 332, 349; People v. Johnson, 333 Ill 469, 473.”

Here, the affidavit of the State’s Attorney laid a sufficient foundation, and upon examination of Mrs. Gordon’s testimony we hold it was not error to call her as the court’s witness. It is apparent from the record that without her testimony there is no way to prove what occurred, and this is precisely the type of situation in which the action is proper.

Defendant contends the court erred in refusing to give his tendered instructions numbered 9, 12, 13, 15 and 17. In view of Supreme Court Rule 451 providing for use of IPCI instructions, the instructions complained of will not be here set forth. Instruction number 9 was repetitious of defendant’s instruction number 8, and upon giving number 8 there was no error in refusing to give number 9. Instruction number 12 was defective in that it instructed the jury that The People must prove every material allegation of the indictment, and no instruction was tendered defining the term material allegations. People v. Hazen, 104 Ill App2d 398, 244 NE2d 424. Instruction number 13 would have been proper if limited to circumstantial evidence, but as tendered was properly refused. The court properly required an amendment to defendant’s tendered instruction number 15, and as amended it was properly given. Number 17 was properly refused.

Defendant complains of The People’s instruction number 3. This instruction correctly defines Involuntary Manslaughter and was properly given.

Although the instructions are not set out in the abstract of the record, we have reviewed them in their entirety, and hold the jury was fairly and adequately instructed.

From our examination of the record we conclude there was sufficient evidence to sustain the conviction, and in the absence of prejudicial error the judgment of the Circuit Court of Montgomery County is affirmed.

Judgment affirmed.

CLARK and EBERSPACHER, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Ray, Defendant-Appellant.
    Gen. No. 53,282. (Abstract of Decision.)
    First District, Second Division.
    November 4, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Clare Hillyard 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-John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in fulL


author: MR. JUSTICE ENGLISH

text:
    Terrance Wolff, Plaintiff-Appellee, v. Elijah Halloway, Defendant, and Home and Automobile Insurance Company, Garnishee-Defendant-Appellant.
    Gen. No. 52,518.
    First District, Fourth Division.
    November, 5, 1969.
    Ernest K. Koehler, of Chicago, for appellant.

      Harold A. Liebenson, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

On an automobile personal injury claim, plaintiff obtained a default judgment against defendant for $7,500. Upon learning that after the accident, defendant’s insurance company had become insolvent and was in receivership, plaintiff used this judgment as the basis for a garnishment proceeding against his own automobile insurance carrier under the uninsured motorist clause of the policy. Judgment was rendered against the garnishee, which now appeals.

Its contentions are that: (1) the relationship among the parties is such that garnishment does not lie; (2) alternatively, insolvency of defendant’s insurance company after the date of the accident did not qualify this defendant’s automobile as uninsured within the meaning of the insurance contract between plaintiff and garnishee; and (3) if the uninsured automobile provision of the policy were applicable, it requires arbitration, and garnishee has not waived its right thereto.

Garnishment was unknown at common law and rests wholly upon statute. Roth v. Kaptowsky, 401 Ill 424, 429-430, 82 NE2d 661. The Garnishment Act is designed to make available assets of a judgment debtor for application in payment of the judgment against him. The pertinent section of the statute provides:

Upon the filing by a judgment creditor or other person of (a) an affidavit that the affiant believes any person is indebted to the judgment debtor, other than for wages, or has in his possession, custody or control any other property belonging to the judgment debtor, or in which the judgment debtor has an interest, and (b) written interrogatories to be answered by that person with respect to the indebtedness or other property, the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit commanding him to appear before the court as garnishee and answer the interrogatories in writing under oath.

Ill Rev Stats (1965), c 62, § 33.

A long line of cases has consistently held that a claim asserted by a judgment creditor against a garnishee must be one which the judgment debtor himself could have maintained. E. g., Bank of Homewood v. Gembella, 48 Ill App2d 316, 199 NE2d 293; Morphet v. Morphet, 19 Ill App2d 304, 152 NE2d 492. See also Zimek v. Illinois Nat. Cas. Co., 370 Ill 572, 574, 19 NE2d 620. Further, there is no question but that proper interpretation of the statute renders the liability insurer of a judgment debtor amenable to garnishment proceedings. See ILP, Garnishment, § 20. The key to this result is found in the insurer’s express undertaking to pay injured persons on behalf of its insured. No such promise is found, however, in the uninsured automobile clause which relates solely to an obligation of the carrier to pay directly to its insured under prescribed circumstances stated in the policy. It does not create or permit the creation of any right in the owner of the uninsured automobile. Absent such a right, we find no basis for garnishment.

A recent case in the Second District reached the same conclusion on basically similar facts. Baron v. Villareal, 100 Ill App2d 366, 373, 241 NE2d 227.

We were extensively briefed on the other two points raised in this court which fall with our conclusion as to the first point. Being outside the range of our consideration in a garnishment proceeding, they are not properly determinable on this appeal. Therefore, in holding that garnishment will not lie under the facts of this case, we make no adjudication as to whether or not plaintiff may be entitled to any other remedy.

The judgment of the Circuit Court is reversed.

Reversed.

McCORMICK, P. J. and DRUCKER, J., concur.

       The pertinent paragraph provides that the carrier agrees:
      To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of said uninsured automobile; provided, for the purpose of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representatives and the company or, if they fail to agree, by arbitration.
      The policy defines an uninsured automobile as:
      An automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile ....


author: MR. JUSTICE STAMOS

text:
    Wesley J. Clark, Plaintiff-Appellant, v. Edward Antczak, Defendant-Appellee.
    Gen. No. 52,653.
    First District, Fourth Division.
    November 5, 1969.

      James C. Kellogg, of Chicago, for appellant.
    John M. Giltinon, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal by plaintiff from ah order quashing a garnishment proceeding against Mystic Tape Corporation on behalf of defendant for the use of plaintiff.

The original action alleged that defendant fired a pistol at and upon plaintiff. A jury demand was filed by plaintiff and defendant appeared and also filed an answer denying the allegations of plaintiff’s complaint. However, defendant subsequently defaulted and the matter was submitted to a jury in an ex parte proceeding wherein a verdict for plaintiff was returned in the amount of $15,000. Defendant then filed a Petition in Bankruptcy and scheduled the aforesaid judgment. After defendant’s discharge in bankruptcy, plaintiff filed a garnishment action against defendant’s employer. Defendant’s motion to quash the garnishment was sustained on the grounds that the judgment was discharged in bankruptcy.

The issue must be resolved in the light of section 35(a) (2) of Title 11 of the United States Code which provides:

“A discharge in bankruptcy shall release a bankrupt from all of his provable debts . . . except such as, . . . (2) are liabilities . . . for willful and malicious injuries to the person or property of another. . . .”

In plaintiff’s original action the plaintiff elected to proceed on two counts. The first count charged that defendant had and held in his hand a certain pistol or revolver loaded with gunpowder and leaden bullets and defendant then and there wrongfully and negligently pointed the weapon at plaintiff and wrongfully and negligently shot off the said weapon to and upon plaintiff, thereby causing the bullet to strike plaintiff.

The second count charged that defendant displayed, pointed and fired said weapon with a willful and wanton disregard for the safety of others and that malice was the gist of the action., Each count alleged the plaintiff’s injuries and damages and sought judgment in the amount of $50,000. The second count asked that the judgment contain a finding that malice is the gist of the action, and that a copias ad satisfaciendum issue on said judgment.

The following three verdicts were tendered to jury:

(1) “We, the jury find for the defendant, and against the plaintiff.”
(2) “We, the jury, find in favor of the plaintiff and against the defendant, and we find specially that the defendant has been guilty of willful, wanton and malicious action and that a finding of malice is sustained.”

Only the third verdict was completed and signed by the jury and, as returned, read as follows:

(3) “We, the jury, find in favor of the plaintiff and against the defendant. We assess the damages in the sum of $15,000.00.”

The following four instructions were also submitted:

1. Illinois Pattern Instruction No. 30.01 pertaining to damages;
2. Illinois Pattern Instruction No. 35.01 pertaining to credibility;
3. An instruction defining “willful and wanton conduct” as “a course of action which was an utter indifference to or conscious disregard for the safety of others”; and
4. An instruction advising the jury as to the imposition of punitive damages if the jury found defendant guilty of willful and wanton conduct.

Plaintiff relies solely upon the pleadings, verdicts and instructions.

The jury’s rejection of a verdict responding to the second count reflects that the jury did not find defendant’s acts to have been committed “willfully, wantonly and maliciously.” On the contrary, the jury returned a verdict responding to the first count finding that defendant acted “wrongfully and negligently.” In view of the foregoing we must address ourselves to the first count and determine whether it contains the requisite allegations that plaintiff’s injuries were caused by defendant’s “willful and malicious” acts. We note that the acts of which plaintiff complains need not be charged in the language of section 35 of the federal statute. Greene v. Lane, 87 F2d 951, 953. The discharge in bankruptcy is a prima facie bar to a claim sued upon, and the burden of proof is upon the person attacking it to show that the debt sued on is not within the terms of the bankrupt’s discharge. Lawrence v. Wischnowsky, 344 Ill App 346, 100 NE2d 816.

Plaintiff contends that the first count is an action in assault and battery or common law trespass vi et armis. However, we find that plaintiff’s endeavor to so charge lacks the required allegations descriptive of “willful and malicious” acts, and the injection of the terms “wrongfully and negligently” are alien to plaintiff’s contention. Thus, the first count does not charge defendant with committing acts willfully, intentionally, maliciously or wantonly. Just as every homicide is not necessarily a murder, so we hold that every shooting of a person is not necessarily an assault to murder, aggravated battery or assault and battery, nor is it necessarily “willful and malicious.” Plaintiff apparently believed that the evidence he proposed to present and probably did present to the jury projected two distinct theories: one predicated upon willfulness and wanton conduct and the other upon negligence. Negligence and willful and wanton misconduct are not synonymous, but are distinct concepts. The Illinois Supreme Court in Chicago R. I. & P. Ry. Co. v. Hamler, 215 Ill 525, 74 NE 705, at page 540 said:

“Negligence and willfulness are as unmixable as oil and water. ‘Willful negligence’ is as self-contradictory as ‘guilty innocence.’ ”

Plaintiff elected to proceed on two distinct counts that charged divergent allegations as to the characterizatian of defendant’s acts. The jury returned with a verdict responding to the acts alleged in the first count only and we find that the allegations therein are not sufficient to be equated with the words of section 35, especially in view of the jury’s refusal to return a verdict on the second count which specifically characterized defendant’s acts within the language of section 35. We therefore hold that the plaintiff has failed to sustain his burden of proof that the debt sued upon is not within the terms of defendant’s discharge in bankruptcy. The order discharging the garnishee is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE LEIGHTON

text:
    Angelo Colon, a Minor, by Jose Colon, His Father and Next Friend, Plaintiff-Appellee, v. Maryanna Marzec, Defendant. Appeal of Reliance Insurance Company, Garnishee-Defendant-Appellant.
    Gen. No. 53,174.
    First District, Fourth Division.
    November 5, 1969.

      Jerome M. Brooks, of Chicago, for appellant.
    Howard and Decker, of Chicago (David A. Decker, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

By a garnishment suit, Angelo Colon, plaintiff, obtained a $20,000 judgment against Reliance Insurance Company, garnishee. In this appeal, the contention is made that the garnishment was premature because the underlying judgment was on appeal; and that justice will not be served if the garnishment is collected while appeal from the underlying judgment is pending. The facts from which these contentions arise are not in dispute.

On January 25, 1967, Angelo Colon, plaintiff, a minor, by Jose Colon, his father and next friend, obtained a $53,000 judgment against an insured of the garnishee. An appeal was taken; and a $75,000 appeal bond was set. The bond was not made; no supersedeas was obtained.

On August 3, while that appeal was pending, plaintiff filed the garnishment. Garnishee’s attorney, who also defended the insured in the principal action, prepared the answers to plaintiff’s interrogatories to garnishee. In the answer, garnishee said that as insurer it issued a $20,000 policy to plaintiff’s judgment debtor. An accompanying affidavit disclosed that the underlying judgment was on appeal, that garnishee was willing, able and ready to deposit with the court the sum of $20,000, plus costs and interest to be held pending resolution of any appeal; and that garnishee was unable to make the supersedeas bond because the judgment against its insured exceeded the limits of the policy. A short time after these affidavits were filed, the garnishment suit was heard; and judgment was. entered in favor of plaintiff for $20,000. An appeal bond was set in the amount of $26,000. The bond was made; and appeal in the garnishment suit was perfected.

Abstracts and briefs were filed in the appeal from the underlying judgment. We heard oral argument; and we have reversed, with judgment in this court for garnishee’s insured. Colon v. Marzec, 115 Ill App2d 410, 253 NE2d 669. Thus, the ground for the garnishment no longer exists.

Plaintiff’s judgment against garnishee’s insured was final. It was a judgment for money in a sum certain. With it plaintiff acquired the right to be paid $53,000 with interest, Tracey v. Shanley, 311 Ill App 529, 36 NE2d 753; Ill Rev Stats, c 74, § 3 (1967), and the right to enforce the judgment through any mode provided by law. Garnishment was one of the modes by which plaintiff could enforce his judgment against garnishee’s insured. Ill Rev Stats, c 62, § 33 (1967). As a judgment creditor, plaintiff could pursue collection of his judgment unless it was stayed in some manner, such as by an appeal accompanied with an adequate supersedeas bond to secure payment of the principal sum, interest, damages, and costs in case the judgment is affirmed or the appeal is dismissed. First Nat. Bank v. Road Dist. No. 8, 389 Ill 156, 58 NE2d 884; Illinois Supreme Court Rule 305(d), Ill Rev Stats, c 110A, § 305 (d) (1967). These are important rights which inured to plaintiff as a judgment creditor.

Whether a judgment creditor can proceed with garnishment while the underlying judgment is on appeal has been the subject of two decisions of this court. In Ancateau v. Commercial Cas. Ins. Co., 318 Ill App 553, 48 NE2d 440, we held that a garnishment based on a judgment pending on appeal was premature. In Cuttone v. Peters, 67 Ill App2d 1, 214 NE2d 499, after a review of cases in other jurisdictions, we concluded that recent decisions indicated a trend away from the philosophy expressed in Ancateau. We held that a garnishment based on a judgment being appealed without supersedeas is not premature. Therefore, the trial court was correct in ruling that plaintiff’s garnishment suit was proper even though an appeal was pending from the underlying judgment. Cuttone v. Peters, supra; Travelers Ins. Co. v. Pinkerton-Hays Lumber Co. (Fla), 120 So2d 448 (1960); cf. Landis v. New Amsterdam Cas. Co., 347 Ill App 560, 107 NE2d 187.

Garnishee contends, however, that the trial court should have allowed deposit of $20,000, the extent of garnishee’s liability on its policy, and entered a stay of the garnishment. It argues that since its liability was limited to $20,000, it had no obligation to post the $75,000 supersedeas bond. We agree that garnishee’s liability was limited and that it had no obligation to post a supersedeas bond for its insured. Indeed, any application of Illinois law that might compel garnishee to pay any money it did not owe, or to do anything it did not undertake in its contract of insurance, would raise serious constitutional questions. On the other hand, unless a supersedeas bond secured payment of the underlying judgment plaintiff could insist on its enforcement.

In Cuttone v. Peters, we considered the rights of a judgment creditor and those of an insurance company in situations like the one before us. We said, 67 Ill App 2d 1, at page 6:

“After careful consideration, we feel that in this matter the interests of a plaintiff in a speedy and sure remedy must come before the interests of the insurance company. Should the underlying judgment be set aside the insurance company surely has a right of action against the plaintiff for recovery of any money it has paid. . . .”

This being so, the trial court correctly rejected garnishee’s offer to deposit the policy amount, and entered judgment for plaintiff. The defense interposed was not valid; and in this appeal, garnishee’s contentions are without merit. See, Conley v. Singleton (Fla), 171 So 2d 65 (1965).

Ordinarily, these conclusions would lead us to affirm the judgment in this case. But we have reversed plaintiff’s underlying judgment. We made this reversal a complete disposition by entering judgment in this court for garnishee’s insured. For this reason, we reverse the garnishment judgment and remand with directions that the garnishment writ be quashed and all proceedings thereunder be dismissed.

Reversed and remanded with directions.

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


author: TRAPP, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nadine M. Millis, Defendant-Appellant.
    Gen. No. 11,054.
    Fourth District.
    November 6, 1969.

      Niven and Clay, of Pontiac (Alonzo William Clay, of counsel), for appellant.
    John G. Satter, Jr., State’s Attorney, of Pontiac (Ronald K. Fellheimer, of counsel), for appellee.
   TRAPP, P. J.

Defendant was convicted at a bench trial upon a charge of “illegal possession of liquor (seal broken) ” in violation of chapter 95i/2, § 144.2, Ill Rev Stats 1967. Defendant appeals.

A bill of particulars specified that the motor vehicle involved was a 1963 Chevrolet, owned and being driven by one Billy Holt; that the liquor concerned consisted of one-half pint of whiskey and two open cans of Budweiser beer; that the ownership of the liquor was unknown and that the beer was in the front seat in close proximity of the defendant and within her physical reach.

An issue presented upon appeal is whether the evidence supports a conviction of the violation charged.

At the time of her arrest, defendant was seated in the middle of the front seat of the described Chevrolet, the owner, Billy Holt, was in the driver’s seat and one Paul Holt sat on defendant’s right. Linda Holt and Charles Holt, husband and wife, were in the rear seat. It appears that the Holts were related by blood or marriage.

The arrest was made while the car was parked. Deputy sheriffs had received information that warrants had been issued in LaSalle County for the arrest of Linda Holt, Charles Holt, Paul Holt and Billy Holt. Such charges are not relevant to this matter. Defendant was placed under arrest for investigation. After the several parties were removed from the parked car of Billy Holt and taken to the squad car, Deputy Ferguson returned to the Holt vehicle and found the liquor. It appears that this prosecution is not concerned with the one-half pint of whiskey that apparently was in the possession of Charles Holt and his wife in the rear seat.

Relevant to this appeal is the testimony of Ferguson that he found the two open cans of beer on the front floor of the car. He testified that at the time he issued arrest tickets to Billy Holt and Paul Holt, he was of the opinion and belief that each was in possession of a can of beer. Defendant testified that there was alcoholic liquor in the car but that she did not have any in her possession; that she had refused a proffered beer; that she did not put the beer on the floor or pass it to anyone. She stated that Billy Holt drank a can of beer and started another, but that she did not see him put the cans on the floor. She stated that the beer cans on the floor would be near her feet.

Each of the Holts pleaded guilty to separate charges, apparently in the same form and language as here.

The prosecution urges that defendant admitted knowledge of the presence of the beer in the car and that such is a basis for inferring her possession, either actual or constructive; that defendant was a party to the offense and accountable for the acts of the others who had pleaded guilty, and that the defendant may be found guilty under chapter 95%, § 236, Ill Rev Stats 1967, as one who aided or abetted commission of the offense by the others.

The testimony does not delineate facts tending to show other than that defendant was a guest in the usual sense in the car owned by Billy Holt. Chapter 95%, § 144.2, in brief, provides:

“No person shall transport, carry, possess or have any alcoholic liquor in or upon or about any motor vehicle except in the original package and with the seal unbroken. . .

A penalty is provided. There is no testimony which shows that defendant did “possess” one or more of the open cans of beer. Such were not, in fact, discovered in the car until all parties had left it.

It is stated that the fact of possession must be proven beyond a reasonable doubt. The People v. Jackson, 23 Ill2d 360, 178 NE2d 320. In that case a conviction for possession of narcotics was reversed. The opinion points out that a suspicion will not support a conviction, and that a person’s knowledge of the place or location of the item alleged to be possessed is not the equivalent of possession. See also People v. Bedford, 78 Ill App2d 308, 223 NE2d 290 and People v. Robinson, 102 Ill App2d 171, 243 NE2d 594. Again, proximity to the items at issue is not sufficient to show possession. In The People v. Jefferson, 24 Ill2d 398, 182 NE2d 1, defendant was arrested and interrogated in the apartment of another. Shortly after the defendant was directed to sit in a chair in a room, a ring found to have been stolen was discovered on a radiator near which defendant was seated. The Supreme Court found it necessary to reverse the conviction upon such evidence, stating that proximity alone fails to establish possession by one who chances to be nearby. See also People v. Archie, 105 Ill App2d 211, 245 NE2d 59.

To apply the doctrine of constructive possession as urged by the prosecution there must be a showing that the defendant had the immediate and exclusive control of the area where the items allegedly possessed were situated. The People v. Mack, 12 Ill2d 151, 145 NE2d 609; The People v. Pugh, 36 Ill2d 435, 223 NE2d 115; People v. Bedford, 78 Ill App2d 308, 223 NE2d 290. In People v. Robinson, 102 Ill App2d 171, 243 NE2d 594, defendant was arrested in the apartment of another, being observed in the bathroom with another man. Traces of narcotics were subsequently found in the bathroom. The court pointed out that it was necessary to reverse a conviction for possession of narcotics inasmuch as such could have belonged to any one of three persons within the apartment. See also The People v. Jackson, 23 Ill2d 360, 178 NE2d 320. Upon this issue of constructive possession the prosecution cites People v. Evans, 72 Ill App 2d 146, 218 NE2d 781. That opinion reverses the conviction in that case and affirms the rule stated here.

It is clear from the evidence in this case that the beer cans on the front floor of the car could have been the possession of any one of three persons. The only specific evidence in the record is that the beer cans were not in the possession of the defendant. The pleas of guilty by the two men in the front seat negatives the possession charged to the defendant, rather than supports her conviction.

It is here argued that chapter 95%, § 236, Ill Rev Stats 1967, provides that a person who aids or abets any violations of the Uniform Act regulating traffic is guilty of the offense. It appears, however, that there must be other circumstances in the record in addition to presence at the scene of the offenses without acts opposing the conduct of others. The People v. Nugara, 39 Ill2d 482, 236 NE2d 693 and The People v. Clark, 30 Ill2d 67, 195 NE2d 157. The only case found which refers to the cited section is The People v. Nails, 10 Ill2d 279, 139 NE 2d 744. In that case defendant was a passenger in a car driven by another. Defendant was specifically charged with aiding and abetting such driver in leaving the scene of an accident when a man was struck and injured on the highway. The additional affirmative conduct there sustaining the conviction was that the defendant actually drove the car away from the scene, and undertook acts which concealed the identity of the car and the responsible driver. This record shows no evidence of conduct other than the presence of the defendant.

It is urged that defendant is responsible for the conduct of the others present, and the prosecution cites chapter 38, § 5-1, Ill Rev Stats 1967. Such responsibility arises for the conduct of the defendant or the conduct of a person for whom he is legally accountable. Legal accountability for the acts of another is defined by § 5-2 (c) in the language:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or
9}

The Committee notes that such section is a comprehensive statement of liability based upon aiding and abetting and specifically points out:

“It will be observed that liability under this subsection requires proof of an ‘intent to promote or facilitate . . . commission’ of the substantive offense.”

This record is barren of any evidence of such intent, or of any facts from which such intent as is contemplated by the subsection may be inferred.

As the conviction cannot be sustained upon the evidence in the record, it is not necessary to consider the issues of the sufficiency of the complaint as amended, or otherwise, raised by the defendant.

The judgment is reversed.

Reversed.

SMITH and CRAVEN, JJ., concur.


author: GRAVEN, J.,

text:
    Charlene Smith, Plaintiff-Appellant, v. Champaign-Urbana City Lines, Inc., Defendant-Appellee.
    Gen. No. 11,081.
    Fourth District.
    November 6, 1969.

      Noel, Middleton & Graver, of Urbana (Kenneth Baughman, of counsel), for appellant.
    Hayes & Moore, of Champaign (Robert P. Moore, of counsel), for appellee.
   GRAVEN, J.,

delivered the opinion of the court.

This appeal from a judgment entered for defendant upon a directed verdict in a small-claims action before a magistrate, arising out of property damage to an automobile, raises two questions as to evidence. First, what evidence is required to raise the presumption that paid auto repair bills are reasonable and necessary expenses for repairs? Second, whether the formal rules of evidence apply to a suit filed as a small claim under Illinois Supreme Court Rule 282.

Plaintiff sued in a small-claims action for property damage to her automobile allegedly caused by the negligence of defendant’s employee. At the trial plaintiff offered evidence of a bookkeeper at the garage where her car was repaired. The bookkeeper testified that she had a repair bill which her books showed paid.

Plaintiff’s Exhibit No. 2 was offered as the repair bill and Plaintiff’s Exhibit No. 4 as a ledger sheet. The bookkeeper testified that Plaintiff’s Exhibit No. 2 was the repair bill for plaintiff’s ear, and that she had made the entries on the ledger sheet (Plaintiff’s Exhibit No. 4).

Defendant objected to the admission of Plaintiff’s Exhibit No. 2 since the witness could not identify all of the entries on the bill, since no repair estimate accompanied the exhibit, since the exhibit contained the writing “100 Ded. Chicago Mtr. Club,” and the exhibit showed replacement of the right rear axle although plaintiff had not testified to any damage to the right side of her car.

Defendant also objected to the admission of Plaintiff’s Exhibit No. 4 because the bookkeeper could not identify and itemize all of the items there listed and because the exhibit did not itemize the parts or labor, but contained only invoice numbers and prices.

The trial court sustained the objections to Plaintiff’s Exhibits No. 2 and No. 4, and granted a motion for directed verdict for defendant for want of proof of damages.

It has been the long-followed rule in Illinois that a paid automobile repair bill is admissible in evidence without other foundation as prima facie evidence of the necessity and reasonableness of such repairs. Byalos v. Matheson, 328 Ill 269, 159 NE 242 (1927); Finch v. Carlton, 249 Ill App 15 (1928); Singer v. Cross, 257 Ill App 41 (1930); Schmidt v. Sinclair, 342 Ill App 484, 97 NE2d 129 (1st Dist 1951).

It will be noted that Plaintiff’s Exhibit No. 4 (the ledger sheet) was shown to be an original entry made by the bookkeeper in the regular course of business. Under such foundation proof, this exhibit clearly was admissible.

No doubt the rule of prima facie proof was developed to obviate the necessity of producing at a trial the garage repairman unless some evidence is introduced that the bill is faulty. It is a reasonable rule, eliminating unnecessary cost to parties and inconvenience to the public, and can be overcome by proper proof in those few cases where the bill is not correct in one or more aspects.

The objection to the item on the exhibit of the right rear axle could have been obviated by striking this item from the bill and subtracting its price from the total paid bill, if the court deemed this appropriate under any evidence produced. Further, the item as to insurance also could have been stricken or deleted, but we fail to see in it any prejudice to defendant.

As to the contention that the rules of evidence do not apply in a suit filed under the Small Claims Rules, we do not agree. A suit under the Small Claims Rules is filed in the circuit court. It is a proceeding in a court of record. Illinois Supreme Court Rules 281-288, inclusive (Ill Rev Stats 1967, c 110A, §§ 281-288, inclusive), provide for small-claims actions. These Rules liberalize the pleading and procedural requirements and make special provision for service of process. They also provide that no depositions or interrogatories, or other discovery procedure, shall be used except by leave of court. However, these Rules make no changes in the rules of evidence. We find no basis to hold, under the present Illinois law, that the rules of evidence applicable to a claim filed as a small claim are any different than in any other type of claim or suit.

The trial court, therefore, erred in directing a verdict for defendant for want of proof of damages.

Reversed and remanded for new trial.

TRAPP, P. J. and SMITH, J., concur,


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Walton (Impleaded), Defendant-Appellant.
    Gen. No. 52,069.
    First District, Third Division.
    November 6, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (George C. Rantis and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Arnold Block, and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was indicted on a charge of unlawful possession of marijuana in violation of the Uniform Narcotic Drug Act (Ill Rev Stats, c 38, § 22-1 et seq., 1965). He was found guilty in a trial without a jury and after a hearing in aggravation and mitigation he was sentenced to the State Penitentiary for a term of from three to six years. On appeal he contends: (1) that the indictment, by failing to allege the element of “knowledge,” did not charge the commission of a crime, and (2) that the statutory classification of marijuana with narcotic drugs is arbitrary and unreasonable and in violation of both the State and Federal Constitutions. The facts follow.

On June 10, 1965 Detectives Richard McKelvey and Raymond Kurowski accompanied by Robert Janet, a federal narcotics agent, went to the first floor apartment at 309 North St. Louis Avenue, in the City of Chicago to search the premises pursuant to a search warrant. Janet stationed himself at the rear of the building while detectives McKelvey and Kurowski went to the front entrance of the apartment and knocked on the door. They announced who they were and that they had a search warrant for the premises. A sound which resembled the twisting or rustling of paper came from within the apartment. They called out again, waited a few moments and finally forced entry into the premises. As they entered, the defendant walked out of an adjoining bedroom and approached them at the front door. The detectives exhibited their badges and gave defendant a copy of the search warrant. As he read over the warrant he said, “Go ahead and search, there is nothing here.” The two detectives then searched the bedroom which defendant had just left. They found two suitcases, one on a bed and the other on a chair next to the bed. The suitcase on the bed was open and contained a small quantity of crushed green plant. As McKelvey opened the suitcase lying on the chair, he sensed the strong aroma of marijuana. In the meantime, Janet had taken a position some 15 to 20 feet from a rear window of the building. From that location he observed the defendant open a window and throw out a brown paper bag. Janet retrieved the bag and brought it around to the front entrance, where he gave it to McKelvey. Charles Vondrak, a Chicago Police Department chemist, testified that he conducted several laboratory tests on the crushed green plant found in both the suitcase and the paper bag and that it was his conclusion that both substances were marijuana. Defendant did not testify and no evidence was offered on his behalf.

We proceed to a consideration of defendant’s first point, that an indictment for unlawful possession of marijuana is fatally defective if it omits an allegation that the act of possession was accompanied by knowledge. The recent decision of our Supreme Court in People v. Mills, 40 Ill2d 4, 237 NE2d 697, since followed in People v. Bussie, 41 Ill2d 323, 243 NE2d 196, and People v. Nelson, 109 Ill App2d 396, 248 NE2d 740, is conclusive on that issue. The indictment in Mills was couched in the same terms, in all material respects, as the one now before us. The court said, at p 13:

“[W]e find that the defendant must be held chargeable with notice that the term possession used in the indictment implicitly meant knowing possession, and therefore we hold that the indictment returned against Mills was valid although it did not expressly allege that he had knowledge of the narcotics found within his control.”

We conclude that the offense in the instant case was properly charged in the indictment.

Defendant’s second contention is that the statutory classification of marijuana as a narcotic drug (111 Rev Stats, c 38, § 22-2-17, 196§) is unconstitutional, in that such a classification is so arbitrary and unreasonable as to deprive the defendant of his rights under the Fourteenth Amendment to the Federal Constitution and Article II, Section 2, of the Illinois Constitution. That argument is premised on the assumption that the classification of marijuana with physically addicting drugs is without scientific support.

In People v. Stark, 157 Colo 59, 400 P2d 923 (1965) the Colorado Supreme Court held on the basis of evidence submitted at the trial that whether addictive or not it (marijuana) is dangerous and should be regulated. Recognizing that differences of opinion exist as to whether the drug is physically or psychologically addictive, the court nevertheless upheld the classification on the ground that it was within the police power of the state and bore a reasonable relation to the safety and welfare of the community. While we find no such case in our courts specifically involving marijuana, statutory classifications relating to public safety and welfare are upheld if within a proper police power purpose and reasonably adapted to secure the ends for which they are intended. Stewart v. Brady, 300 Ill 425, 133 NE 310; Tometz v. Board of Education, 39 Ill2d 593, 237 NE2d 498; City of Chicago v. Vokes, 28 Ill2d 475, 193 NE2d 40.

In Commonwealth v. Leis (Mass), 243 NE2d 898 (1969) the Supreme Judicial Court of Massachusetts had before it a statute which was, like our own, derived from the Uniform Narcotic Drug Act. After examining the testimony of 18 expert witnesses, the court upheld the classification of marijuana as a narcotic drug. The court found from the testimony that marijuana “is a mind-altering drug,” “causes an alteration of sensory perceptian, a degree of psychomotor discoordination and an inability to concentrate,” and that “the effects of smoking marijuana are unpredictable.” Finally, after reviewing the evidence as it related to a classification which, like the Illinois statute, places marijuana, a non-opiate, with the so-called “hard narcotics” or opium derivatives such as heroin, morphine and codeine, the court said (p 905):

“All of these substances are mind-altering drugs. The fact that some are more potent or more dangerous than others does not render the classification arbitrary. To some degree they are all capable of producing psychotic disorders, states of intoxication and psychological dependency; and consequently present some danger to the health and safety of the community. We do not think that the classification of marijuana with the others is arbitrary.”

In the instant case the defendant presented no evidence on the nature of marijuana or its relation to the other drugs listed as narcotics by the statute. Nor are we referred to any legal authority which has passed favorably on the contention he now urges. Unlike the Stark and Leis cases, supra, which dealt, although adversely, with the merits of similar contentions, there is no basis in the record in the instant case which would justify our holding other than in accordance with the presumption in favor of statutory validity. The judgment of the trial court is therefore affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMAEA, J., concur.