text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles E. Gilmer, Defendant-Appellant.
    Gen. No. 52,134.
    First District, Second Division.
    April 29, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Charles E. Gilmer, was indicted for the unlawful sale of narcotic drugs. He was tried before a jury, found guilty, and sentenced to serve not less than ten nor more than eleven years in the Illinois State Penitentiary. The defendant appealed from the judgment of the trial court and in this court argues:

1) His constitutional rights were violated when the prosecutor commented on suppressed evidence in his closing argument to the jury;
2) The prosecutor’s closing argument was so improper and prejudicial that defendant was denied his right to a fair trial;
3) The defendant was denied his right to a fair trial when the trial judge admitted evidence that defendant committed a subsequent, unrelated offense ; and
4) The evidence presented in the trial court was not sufficient to prove defendant’s guilt beyond a reasonable doubt.

On May 11, 1966, two police officers met an informer at a gas station at 47th and State Streets in Chicago. The informer, John Preston (alias Allen Cole), had told the officers he knew where to illegally purchase narcotics. The police stripped and searched the informer to verify that he did not possess narcotics before making contact with the defendant, and he was given $25 in prerecorded bills, then taken to the vicinity of Michigan Avenue and 42nd Street, where he left the car and went to the southeast corner of 43rd and Michigan. The officers remained inside the unmarked police car from which they witnessed the meeting of the defendant and the informer.

When the two men started walking south on Michigan Avenue, Officer Arnold left the police car and followed them to the apartment building at 4420 South Michigan where the defendant lived. The two men went into the building and, according to the informer’s testimony, went up to the defendant’s apartment. The defendant asked if he was interested in purchasing narcotics, and the informer said he was. The defendant asked the informer how much money he had and when he was told, the defendant took the money and left the other man in the apartment while he went down the hall. When he returned he gave the informer a small tinfoil package which the informer turned over to Officer Arnold as soon as he left the building. This incident, from the time the men entered the apartment building, took from three to five minutes.

Officer Arnold field tested the contents of the packet which revealed the presence of opium; the two officers then entered the foyer of the apartment building where they arrested the defendant for the unlawful sale of narcotics.

The defendant was placed in Tier D-2 of Cook County Jail, awaiting trial. On November 19, 1966, the informer was also incarcerated in the Cook County Jail on a petty theft charge, and was also placed in Tier D-2. On December 8, court call slips were sent over for both men, notifying them they were to appear that day for defendant’s trial. In his testimony the informer said that when the defendant discovered he was in the same tier, he and some of his cellmates beat the informer severely when the defendant told the informer, “I should kill you. You are supposed to go and testify against me today.”

The defendant testified that the informer was beaten because the inmates believed he was in jail “getting information on everybody up here.” The defendant further testified that he had seen the informer for the first time in his life in Cook County Jail, and that he had never struck the informer.

During his opening statement to the jury the State’s Attorney referred to the beating of the informer, saying he “was beaten by the defendant and beaten severely.” Defense objected and the objection was overruled. The defense again objected to the informer’s direct examination in which he was allowed to relate to the jury the circumstances surrounding his beating at the jail. During direct examination the informer admitted he had been a narcotics user “back in the fifties.”

The defendant further urges that the closing argument was so improper and prejudicial that he was denied a fair trial; that the trial court committed reversible error in admitting evidence about the beating of the informer, an offense of the defendant’s subsequent to and unrelated to the offense charged in the indictment; and finally, the defendant contends that he was not proved guilty beyond a reasonable doubt, when the consideration of the suppressed currency is removed.

We shall consider the latter argument first, since if the defendant is correct in asserting that he has not been proved guilty beyond a reasonable doubt, the judgment must be reversed, while error on the other points would justify no more than a reversal of the judgment and a remand of the cause. Defendant’s argument on this point is that the conviction rests on the uncorroborated testimony of an addict-informer, and there was not enough substantiating evidence to convict the defendant of selling narcotics.

In People v. Bazemore, 25 Ill2d 74, 182 NE2d 649, the Supreme Court reversed a conviction for the unlawful sale of narcotics. The defendant was not found in the area, nor had the police seen the informer and the defendant together. The defendant was arrested two months later on a charge of unlawful sale of narcotics. The court said at page 76:

“Where, as here, the State’s case rests solely upon the credibility of an admitted narcotics addict, a trial court, and in the final analysis this court, must carefully and closely scrutinize the testimony of the witness. [Citing cases.] Although it does not necessarily follow that his testimony must be disbelieved (People v. Barney, 15 Ill2d 503), the fact that a witness is a narcotics addict has an important bearing on his credibility.”

All this statement says is that the courts must carefully scrutinize the testimony of narcotics addicts since they are not as likely to tell the truth as normal witnesses. However, it is worthy of note that in the instant case there is no testimony in the record showing that the informer was a narcotics addict at the time of his arrest or during trial.

In People v. Realmo, 28 Ill2d 510, 512, 192 NE2d 918, the court commented on its holding in Bazemore, stating that there “an admitted addict’s wholly uncorroborated testimony in which discrepancies and variations appeared was insufficient to convict. It is significant that in Bazemore there was no surveillance by police of any portion of the informer’s activities in making the purchase, and the arrest of the defendant did not occur until some two months later.”

By contrast, in the case before us, the informant’s testimony was corroborated insofar as it could have been, and there was surveillance by the police which established that the informer and the defendant met, conversed and went to defendant’s apartment. They were both out of visual contact of police for only three to five minutes, after which time the informer came directly to Officer Arnold and handed him the packet which proved to contain narcotics. Also, as we have pointed out, there was no evidence that at the time of the arrest or of the trial the informer was a narcotics addict.

In a recent case concerning an indictment for the unlawful sale of narcotics, People v. Smith, 41 Ill2d 158, 242 NE2d 198, the informer was an addict at the time of trial. The court held that while that fact had a bearing upon his credibility, it did not follow that his testimony must necessarily be disbelieved, especially when corroborated by other witnesses, citing People v. Hamby, 6 Ill2d 559, 129 NE2d 746. In Smith, the testimony of two police officers was contradictory in some respects. The court held that the testimony of Officer Paschal substantially corroborated that of the informer, and stated at page 161:

“There are conflicts in the testimony of Henry and Paschal, but the determination of such conflicts is a function of the trial court. (People v. Wysocki, 20 Ill2d 62.) In our opinion, the evidence was sufficient to sustain the finding of the trial court.”

In the case before us, where the conflict is in the testimony of the defendant and the informer, the same rule should apply.

The defendant also cites People v. Minor, 70 Ill App2d 464, 217 NE2d 316; however, the facts in that case are in no respect similar to those in the instant case.

The fact that the defendant testified he had never met the informer before the altercation in the jail— which statement is in direct opposition to the testimony of the informer and the police officer — merely raises a question of fact for the determination of the trier of fact.

Defendant further argues that he was deprived of his constitutional rights by the statement of the State’s Attorney in his closing argument. On December 7, 1966, a hearing was held on defendant’s motion to suppress evidence consisting of marked U. S. currency which had been taken from his apartment on May 11, 1966, during a search without a warrant. In his closing argument a State’s Attorney made the following statement to the jury:

“Now, the officers told you that after they gave this money to the informer he went into the building and three or five minutes elapsed, then they placed the defendant under arrest. Certainly we would like to present all possible evidence. You heard nothing about a search warrant where the officers went up and searched the premises and recovered this money. We presented you the evidence we had.”

The defendant objected to these statements and the objection was sustained; the court instructed the jury to disregard the statements of the State’s Attorney.

The Fourth Amendment of the United States Constitution and section 6 of article II of the Illinois Constitution both have substantially the same provision in guaranteeing protection against unreasonable searches and seizures. In Mapp v. Ohio, 367 US 643, it was held that the exclusionary rule was a necessary concommitant of the Fourth and Fourteenth Amendments, and to allow evidence to be admitted against the defendant when such evidence had been obtained in violation of defendant’s right to be secure against unreasonable searches and seizures, would render the Fourth Amendment meaningless.

In People v. Castree, 311 Ill 392, 143 NE 112 (1924), the court held that evidence obtained by an unreasonable search and seizure was not admissible; and in People v. Luna, 37 Ill2d 299, 226 NE2d 586, the court reversed a conviction where a defendant had been impeached with testimony he had given at a pre-trial hearing to suppress.

In the instant case the State argues that the intent of the prosecutor was not to prejudice the rights of the defendant. It is really immaterial as to what the prosecutor intended; what is material is the consequence of his action. The State argues that the last three sentences of the questioned portion of its closing argument “logically establishes a basis on which a conclusion may be founded that the prosecutor only wished to point out to the jury that no evidence was presented during the trial relating to a search of defendant’s apartment or recovery of any of the marked money given the informant because the prosecution did not possess such evidence.”

The purported concern of the State’s Attorney to point out to the jury the weakness in the State’s case appears highly questionable. Furthermore, it could hardly be called common practice for an attorney to point out all the elements which were not presented in evidence. The State’s Attorney’s comment that the State did not present evidence of the prerecorded money found in the search of defendant’s apartment, could well have been taken by the jury to mean that such evidence was available but for some reason was not presented in a formal manner.

In Fahy v. Connecticut, 375 US 85 (1963), the court held that the determining factor was whether there was a reasonable possibility that improperly introduced evidence might have contributed to the conviction. We believe that such a reasonable possibility was injected into the record in the instant case by the comments of the State’s Attorney; therefore, the judgment is reversed and the case remanded for a new trial.

Because of our disposition of this case there is no need to comment on the other alleged errors argued by the defendant.

Reversed and remanded.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Taylor, Defendant-Appellant.
    Gen. No. 53,078.
    First District, Second Division.
    April 29, 1969.
    Wilson and Garnett, of Chicago (Kenneth E. Wilson, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Eugene Taylor was charged with the offenses of driving while under the influence of intoxicating liquor, failure to yield the right of way, and failure to display a city vehicle sticker. Following a bench trial, the defendant was discharged on the latter two charges and found guilty of the first as that offense is defined in Ill Rev Stats (1965), c 9514, § 144. Judgment was entered on the finding and he was fined one hundred dollars and assessed five dollars costs. He appeals alleging (a) the evidence was unsatisfactory and insufficient to prove him guilty beyond a reasonable doubt, and (b) the trial court considered matters not in evidence in determining the guilt of the defendant, contrary to law.

At the trial, police officer Edward K. Jowski, the only witness for the prosecution, testified that on February 25, 1967, at approximately 7:30 p. m. he was driving northbound on Cottage Grove Avenue when a car pulled out in front of him at Forty-second Place, forcing him into the southbound lane in order to avoid a collision; that he stopped the offending vehicle, which was being driven by the defendant and he engaged in a conversation with the driver at which time the officer detected the odor of alcohol on the defendant’s breath; that the driver stated that he had been drinking wine. The officer further testified that the defendant was then arrested, advised of his constitutional rights and transported to the police station where he was questioned further and certain tests were administered.

With respect to the defendant’s physical condition the officer testified that his eyes were bloodshot, face color normal, clothes soiled and disorderly. Officer Jowski further testified that he administered certain performance tests with the following results: balance test, defendant swaying; walking test, defendant sure; finger to nose test, right hand hesitant, left hand missed; turning test, defendant hesitant.

The witness was also allowed to read questions asked of, and answers given by, the defendant during his interrogation at the police station, the substance of which was that he admitted having consumed some alcoholic beverages, bourbon and beer. Finally, it was stipulated that a breathalyzer reading of .10 was taken at 10:00 p. m., two and one-half hours after the arrest. Under the statute in force at the time of the alleged offense a reading of .10 did not raise a presumption of either intoxication or sobriety.

The defendant took the stand on his own behalf and testified that he had consumed two shots of bourbon and a beer between 7:00 and 7:30 p. m.; that he was not under the influence of alcohol at the time of his arrest and his ability to drive had not been impaired; that his performance on the balancing, turning, and walking tests was affected by a painful foot condition. He denied telling the police officer that he had been drinking wine.

Defendant contends that the court considered matters not in evidence in determining his guilt. This contention is based upon a statement made by the trial court at the time that the finding of guilty was announced in which the court noted that the statute which defines the offense had been amended subsequent to the arrest and prior to trial to the extent that at the time of trial a breathalyzer reading of .10 served to raise a presumption of intoxication, (at the time of arrest a reading of .15 was required for this presumption), and that the court felt that the breathalyzer reading in the instant case would have been higher had the test been administered immediately following the arrest.

We find this contention to be without merit. A fair reading of the court’s commentary clearly discloses that the court did not consider the presumption which arises under today’s statute, but merely made passing reference to the change. Further, it is also clear from the record that the statement of the court with respect to what a breathalyzer reading would have been if the defendant had been tested immediately after his arrest was not made as part of the review of the evidence upon which the court made its finding, but rather was merely comment upon certain remarks made by defense counsel during his closing argument to the effect that he, defense counsel, believed that had a breathalyzer test been administered at 7:30 p. m., the time of the arrest, it would have been lower than the reading obtained at 10:00 p. m.

Defendant’s second contention is that he was not proven guilty beyond a reasonable doubt. The rule is well settled that in order to prove the corpus delicti the State has the burden of proving that the defendant drove a motor vehicle at the time and place in question and was, at that time, under the influence of intoxicating liquor. People v. Miller, 23 Ill App2d 352, 163 NE2d 206 (1959); People v. Barnes, 34 Ill App2d 238, 180 NE2d 509 (1962); People v. Schulewitz, 87 Ill App2d 331, 231 NE2d 678 (1967); People v. Mundorf, 97 Ill App2d 130, 239 NE2d 690 (1968).

The trial court found, and we agree, that the testimony of the police officer was not sufficient to meet the State’s burden of proof. The court was of the opinion, however, that the totality of the evidence, consisting of the testimony of the police officer and the breathalyzer reading, was sufficient to establish guilt beyond a reasonable doubt. While we agree that the testimony of the police officer standing alone was not sufficient to satisfy the prosecution’s burden, we must disagree as to the additional effect of the breathalyzer reading. Under the statute in force at the time of the occurrence no presumption arose under a reading of .10. Furthermore, there was no evidence as to what the reading would have been at a time other than when the test was actually-administered. The only reasonable inference which can be drawn from the reading, is that the defendant had consumed some form of alcoholic beverage. Any attempt to ascertain therefrom the physical condition at the time of his arrest would amount to mere speculation which is not, of course, a competent basis for a finding of guilty. This single justifiable inference serves to contribute little, if anything, to the State’s case, especially in view of the defendant’s admission that he had in fact consumed some alcohol.

We therefore conclude that the State failed to prove the defendant guilty beyond a reasonable doubt since the corpus delicti was not established. The judgment of guilty must therefore be reversed.

Judgment reversed.

BURKE and McCORMICK, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leo Sanders, Defendant-Appellant.
    Gen. No. 52,606.
    First District, Third Division.
    May 1, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Sullivan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial defendant was found guilty of the crime of aggravated battery and attempt to commit murder. He was sentenced to serve a term of five to ten years on the latter offense only, that being the greater of the two.

Two points are made on appeal: (1) that the State in the presence of the jury improperly handed police reports and the transcript of testimony before the Grand Jury to defense counsel, and (2) that the court violated defendant’s privilege against self-incrimination and his right to a fair trial when it ordered his counsel to give the People’s attorney the typewritten statement of a defense witness during cross-examination by the State. As the sufficiency of the evidence is not challenged, a brief statement of the facts is all that is needed.

Roger Robinson, Aretha Turner, Melvin Stroughter, Frances Miller and Annette Myers all testified in substance as follows: They, along with Emmer Jean Rogers, were together in Robinson’s apartment on the night of the crime; that Sanders, the defendant, arrived at about midnight and demanded that Miss Rogers, his so-called common-law wife, come home with him; that she refused and an argument ensued. Robinson interceded and defendant argued with him until Robinson said that he was going into the kitchen. At that point defendant drew a revolver and shot Robinson in the chest.

Emmer Jean Rogers testified that when defendant arrived, there was a crap game in progress and he was asked to join. Shortly thereafter Robinson accused defendant of using loaded dice and took a revolver from under the bed. Somehow the gun discharged and she left with the defendant without seeing what had happened to Robinson. Defendant did not testify.

As to the first point, defense counsel during the trial asked for police reports and for the minutes of the testimony before the Grand Jury of two of the State’s witnesses. The State’s Attorney replied, in the presence of the jury, that he had none. Defense counsel then noted, also in the jury’s presence, that there appeared to be some controversy and that the witness was obviously hostile to defendant. Then, outside the presence of the jury, defense counsel continued to argue that a statement had been given by the witness in question, to which he was entitled. The State’s Attorney several times denied that he had such statement and said, “As a matter of courtesy, I will furnish all my police reports to counsel.” The court agreed that the State should furnish defense counsel with whatever police reports it had so that if there were any statements by the witness, defense counsel could make use of them. Defense counsel made no objection and the State’s Attorney handed him some documents saying, in the presence of the jury:

“Your Honor, although counsel is not entitled to these matters at this time, in the spirit of cooperation I am furnishing the remaining grand jury testimony and all of the police reports in this case. This includes the arresting officers, the investigating officers, and any other reports we have.”

Defendant contends that the effect of this was to advise the jury that he had been given documents which corroborated the testimony of the State’s witnesses. He argues that defense counsel was placed in such position that if he did not use the documents to impeach the State’s witnesses, the jury would infer that they corroborated their testimony. He relies on People v. Beard, 67 Ill App2d 83, 214 NE2d 577, and People v. Lowe, 84 Ill App2d 435, 228 NE2d 563. In Beard the defendant on three occasions out of the presence of the jury asked for prior statements and the court told him that such request had to be made in the presence of the jury. The defendant then received the statements in the presence of the jury and moved for a mistrial, which the court denied. Finally, the State’s Attorney argued to the jury that the defendant was given prior statements of the witnesses and was unable to show any contradiction by them. In Lowe the State offered the defendant prior statements of a witness immediately after examination of the witness and told the jury exactly what it was giving him. Then in closing argument the State said that its witness had always told a consistent story and that copies of her previous statements had been given to the defendant and that he had not impeached the witness. In both cases the court held such conduct to be reversible error.

The instant case is clearly distinguishable. Here, defendant had accused the State, in the presence of the jury, of withholding prior statements made by the witness. In an effort to convince defense counsel that it had no such statements, the State, out of the presence of the jury, offered to turn over all police reports and Grand Jury statements to the defendant. Defendant’s counsel apparently was satisfied and made no objection. When the State did offer the statements, in the presence of the jury, it could only appear that it was for the purpose of demonstrating to defense counsel that it had no prior statement of the witness in its possession. The jury did not know what statements were or were not included, so it could hardly speculate on whether or not they corroborated any of the State’s witnesses. Moreover, the State did not argue the point to the jury. Under those circumstances, the defendant was not prejudiced and there was no reversible error. People v. Bickham, 91 Ill App2d 465, 235 NE2d 400.

Defendant’s second contention is that the court violated his privilege against self-incrimination and the right to a fair trial when it ordered defense counsel during the State’s cross-examination to turn over to the State the typewritten statement of a defense witness. He argues that the statement was privileged and was part of his work product. The statement involved was given to defense counsel in his office by a witness who later testified. After the witness replied on cross-examination that he had made a prior statement, the court ordered counsel to give the statement to the State so that it could use it for impeachment purposes. It is undisputed that no attorney-client relationship existed between the witness and defense counsel, so the statement clearly was not privileged. People v. Speck, 41 Ill 2d 177, 242 NE2d 208. It is equally clear that the statement was not part of the attorney’s work product. Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410.

Defendant further argues correctly that there is no provision in the Criminal Code which authorizes the court to order discovery from a criminal defendant. Indeed, the code makes no provision for the production of prior statements from either the State or the defense. Nevertheless, our Supreme Court has held that where no privilege exists and where the relevance and competency of a statement has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. People v. Wolff, 19 Ill2d 318, 167 NE2d 197.

Defendant cites no cases to support his contention that only the defense should have a right to prior statements for impeachment purposes. The truth is the objective sought by the courts. There is no sound reason, when no privilege is involved, why both the State and the defendant should not have an equal right to prior statements for impeachment purposes. We accordingly hold that the court in the instant case properly ordered defense counsel to submit to the State the prior statement of the witness in question.

The trial was fairly conducted, no error has been properly assigned and the judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Sykes, Jr., Defendant-Appellant.
    Gen. No. 53,153.
    First District, Third Division.
    May 1, 1969.
    Rehearing denied June 4, 1969.

      Robert C. Power, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Trais, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Originally the defendant was charged with the felony of theft from person, but immediately before trial the State reduced the charge to the misdemeanor of theft of property not exceeding $150 in value. Defendant’s attorney entered a plea of not guilty and waived trial by jury for him. Defendant was found guilty by the court and sentenced to serve four months at the Illinois State Farm in Vandalia. He contends on appeal that he did not knowingly and understandingly waive his right to a jury trial and that his identity as the person who committed the crime was not proven beyond a reasonable doubt. The facts follow.

Mrs. Barbara Netter testified that on January 25, 1968 at about 6:15 p. m. she was walking at 84th and Aberdeen Streets in Chicago when she was accosted by two young men, one of whom she later identified as the defendant. Defendant grabbed her around the neck from behind and pushed her purse out of her hand and the other man picked up her purse. She testified that after the defendant released her, she saw his profile for a minute or two. She reported the incident to the police and described defendant and the clothes he wore, including a “funny hat.” She was unable to describe the other boy. A short time later the police brought the defendant, who was still wearing the “funny hat” and another man to her home and she identified defendant as the man who had grabbed her and taken her purse. She was unable to identify the other man. She also positively identified defendant in the courtroom and testified he was wearing the same “funny hat” and leather jacket he wore when he took her purse.

Defendant testified that he was at home at 6:00 p. m. on the day in question and did not leave until approximately 6:20 p. m. He met and talked with some friends and while walking with two other boys, he was arrested by the police. The police took him and one of the other boys to three houses where the occupants were not able to identify them as purse snatchers. At the fourth house Mrs. Netter identified him, but not his companion. Defendant’s mother testified that on the night in question he left home at about 6:20 p. m.

Defendant’s first contention is that he did not knowingly and understandingly waive his right to a jury trial. He contends that the jury waiver made on his behalf by his appointed counsel was not shown to have been knowingly concurred in by himself and was therefore void.

The recent case of People v. Novotny, 41 Ill2d 401, 244 NE2d 182, is dispositive of this point. There the court stated that the relationship of attorney and client is one of agency, so that the presence and silent acquiescence of a defendant where his attorney waives a jury trial “sufficiently demonstrates the authority of the attorney to speak for the defendant, and makes the attorney’s statement his own.” The court then held (p 409):

“There is the additional unique factor that the jury waiver was the quid pro quo for the reduction of the seriousness of the charge. At the time that defense counsel acted on behalf of his client to waive a jury trial, he was pursuing a strategy by which the defendant gained the distinct and critical advantage of having the charge against him reduced substantially.”

In the instant case defense counsel twice stated in defendant’s presence that defendant would plead “not guilty and waive jury.” Moreover, immediately after the jury waiver was made, the court permitted the State to reduce the charge from a felony to a misdemeanor and the State nolle pressed the felony charge. There was no indication that defendant did not understand what was happening and it is clear he obtained the mild sentence here imposed as a result of the jury waiver. We find no error in the waiver of the right to a jury trial.

Defendant’s second contention is that the evidence and particularly the eyewitness identification was insufficient to prove his guilt beyond a reasonable doubt. It has long been the law that the testimony of one credible witness is sufficient for conviction. People v. Boney, 28 Ill2d 505, 192 NE2d 920. Moreover, the credibility of witnesses and the sufficiency of identification are questions for the trier of fact and a reviewing court will not reverse unless the testimony is so unsatisfactory as to create a reasonable doubt as to the guilt of the accused. People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849.

The testimony of the complaining witness clearly indicates that her identification of defendant was based on two distinct elements: first, the physical appearance of the defendant, including his height and his profile and general complexion, and, second, his apparel, which he was still wearing in the courtroom. On both occasions when the victim saw the defendant, she identified him both by his appearance and by his hat and jacket.

Defendant cites numerous cases involving identification which were held to be insufficient to sustain a conviction. Each of those cases can be distinguished. Many involved a combination of a weak identification with a very convincing alibi. In this case the only alibi was that furnished by the defendant’s mother. She testified that he arrived home at 5:50 p. m. and left there about 6:20 p. m. on the day in question. Both the time of the crime and that of the alibi are inexact and defendant’s home is but a short distance from the scene of the crime. Such a slight deviation in time may well be accounted for in the inaccuracy of a timepiece.

The other cases cited by defendant involved several persons identifying a defendant but claiming different characteristics and/or clothing. In the instant case the victim twice positively identified the defendant and his clothing within twenty-four hours after the crime was committed. There was ample evidence to support the finding of guilty beyond a reasonable doubt and the judgment is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Betty A. Ramseyer, Individually, and as Administrator of the Estate of Beulah Rill Miller, Deceased, Plaintiff-Respondent, v. Illinois Central Railroad Company, a Corporation, Defendant-Petitioner.
    Gen. No. 53,216.
    First District, Third Division.
    May 1, 1969.

      Ruttenberg & Ruttenberg, of Chicago (David W. Ruttenberg and Marvin H. Ruttenberg, of counsel), for plaintiff-respondent.
    John W. Foster, Lawrence Lawless, and Philip Seely, of Chicago (Robert Mitten, of counsel), for defendant-petitioner.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is a petition for leave to appeal from the trial court’s order granting a new trial in a wrongful death action for damages due to the defendant’s alleged negligent operation of its railroad. The jury returned a verdict in favor of the defendant, but upon the plaintiff’s motion the trial court vacated its judgment on the verdict and granted a new trial.

It is well established that a motion for a new trial is addressed to the discretion of the trial judge, and his judgment will not be reversed except for a clear abuse of discretion which must affirmatively appear in the record. (Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill App2d 354, 199 NE2d 618.) In granting a new trial, the trial judge emphasized that in view of the very close factual issues presented in the case, the defendant’s failure to offer proof of the allegedly inconsistent statements made by a key plaintiff’s witness, after having laid the foundation to impeach, prejudiced the plaintiff’s case thereby necessitating a new trial.

The following cross-examination of the plaintiff’s only occurrence witness, Lawrence Swislow, was conducted by defense counsel in an apparent attempt to impeach the witness’s direct testimony which indicated that the decedent was within the boundaries of the pedestrian crosswalk when she was struck by the defendant’s train:

“Q. Mr. Swislow, isn’t it a fact that you told an Illinois Central employee that you saw the deceased walk southeast across Jeffery and that she was going around the south pedestrian gate?
“A. I could not truthfully say that because I do not remember the exact — whether or not if I had the conversation.
“Q. But did you have a conversation?
“A. I remember talking to an employee of the Illinois Central.
“Q. Do you remember that you shouted to the lady that you saw in danger and that you shouted to her?
“A. No, I did not.”

This form of cross-examination was strenuously objected to by the plaintiff, and the trial judge only allowed such impeachment attempts after defense counsel assured him in open court and in the presence of the jury that the defense would produce a witness to support the attempted impeachment.

The defendant produced Edwin Dahlin, a conductor on the train which struck the deceased, whose testimony in no way impeached Swislow. In addition, the jury did not know that the witness Dahlin was the employee of the Illinois Central referred to during the attempted impeachment of Lawrence Swislow. The defendant’s entire case lacked any evidence to support the alleged impeaching and inconsistent statements of Swislow despite the earlier assurances of the defendant that such evidence would be forthcoming.

We agree with the trial judge’s conclusion that, under the facts at bar, it was highly prejudicial for the defendant, having laid the foundation for impeachment of a key plaintiff’s witness on a material issue of the deceased’s exercise of care, to fail to offer proof of the prior inconsistent statements. (See: Reese v. Crain, 98 Ill App2d 380, 240 NE2d 358; Schoolfield v. Witkowski, 54 Ill App2d 111, 203 NE2d 460; Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348.) The fact that defense counsel acted in good faith when he made his assurances to the court in no way negates the prejudicial effect of such an error. Accordingly, the defendant’s petition for leave to appeal is denied.

Leave to appeal denied.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. August Galan, Defendant-Appellant.
    Gen. No. 53,300.
    First District, Third Division.
    May 1, 1969.

      Sherman, Schachtman & Stein, of Chicago (Albert Brooks Friedman, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant was tried in a bench trial and convicted of gambling under a statute reading: “A person commits gambling when he . . . knowingly owns or possesses any book, instrument or apparatus by means of which bets or wagers have been, or are, recorded or registered.” Ill Rev Stats (1967), c 38, §28-1 (a) (5).

In January 1968, police raided a room in Chicago and found the defendant submerging a stack of soluble paper in a bathtub. The only exhibit introduced into evidence noted the name of a racetrack, the numbers of three races and the number of one horse in each race. It contained nothing else. The arresting officer, who was stipulated to be an expert on gambling, gave his opinion that the marks on the exhibit indicated records of horse race wagers. He further testified, however, that there was no notation on the exhibit which was the actual record of a bet and that the symbols which would normally refer to bets were not present. The sum total of his testimony was that the paper salvaged from the bathtub was the type used for recording bets but that it bore no evidence of such bets.

The defendant’s sole complaint is that the State’s evidence was insufficient to prove his guilt. The offense of which the defendant was found guilty is the knowing possession of wagering instruments by means of which bets have been or are recorded. The offense is not the possession of instruments by means of which bets might have been or could be recorded. The State must establish beyond a reasonable doubt the essential elements of the statutory offense. People v. Sanford, 24 Ill2d 365, 181 NE2d 118 (1962). Circumstantial evidence has the same validity and weight in gambling cases as in other offenses (Ill Rev Stats (1967), c 38, § 28-1 (d)) but the evidence must prove commission of the offense beyond a reasonable doubt.

The State attempted to prove the defendant guilty by evidence of an effort to dispose of instruments which the gambling community utilizes to record wagers. This was insufficient to prove an essential element of the crime: that wagers had been or were recorded on the instruments seized.

The State’s evidence creates the suspicion, indeed the probability, that the defendant was engaging in illegal gambling activities. Possession of soluble paper indicates anticipation of police raids and preparation for the quick disposal of incriminating evidence. The immersion of the paper suggests that it may have contained recordings of bets which were dissolved before seizure. But these suspicious circumstances, while of probative value, cannot substitute for proof that the paper was being or had been used for recording bets. Suspicions and probabilities are not enough to convict, and the conviction must be reversed. People v. Jackson, 23 Ill2d 360, 178 NE2d 320 (1961).

To support the conviction, the State cites People v. Davis, 34 Ill2d 38, 213 NE2d 531 (1966). In Davis, police apprehended the defendants after observing them attempt to dispose of sheets of paper for recording horse race bets, and further answered phone calls in the defendants’ room from persons placing bets. Conviction was obtained, and upheld on review, under the 1961 statute providing: “A person commits gambling when he . . . uses or keeps any book, instrument or apparatus for the purpose of recording or registering bets or wagers. . . .” Ill Rev Stats (1961), c 38, §28-1 (a) (5). The evidence there supported the conclusion that the paper sheets were “for the purpose of recording or registering bets or wagers.” The statute has subsequently been amended to specify instruments by means of which bets “have been or are” registered and it is on this element that evidence in the case at bar fails.

The judgment is reversed.

Reversed.

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


author: JUSTICE DEMPSEY.

text:
    Machinery, Scrap Iron, Etc., Local Union No. 714, I. B. of T., a Voluntary Unincorporated Association, Plaintiff-Appellant, v. Chicago Roll Forming Corporation, an Illinois Corporation, Defendant-Appellee.
    Gen No. 53,416. (Abstract of Decision.)
    First District, Third Division.
    May 1, 1969.

      Goldberg & Levin, of Chicago (Mayer Goldberg and Marvin Sacks, of counsel), for appellant;
    Phillip S. Makin, of Chicago, for appellee.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.


author: JUSTICE SCHWARTZ.

text:
    Charles Gustav Teach, Plaintiff-Appellee, v. H. & H. Tank Installers, Inc., a Corporation, and Jack Harrington, Defendants-Appellants.
    Gen. No. 53,543. (Abstract of Decision.)
    First District, Third Division.
    May 1, 1969.
    Wildman, Harrold, Allen & Dixon, of Chicago, for appellants;
    Howard and Decker, of Chicago (David A. Decker, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    Norcross W. Putnam and Ruth Putnam, Plaintiffs-Appellants, v. New Amsterdam Casualty Co., Defendant-Appellee.
    Gen. No. 51,418.
    First District, Second Division.
    May 6, 1969.
    John G. Phillips, of Chicago (Sidney Z. Karasik, of counsel), for appellants.
    Schaffenegger & Watson, of Chicago (Jack L. Watson, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This suit was brought by Norcross W. Putnam and Ruth Putnam against New Amsterdam Casualty Co., under an automobile policy which insured plaintiffs. The complaint grew out of an accident which occurred on August 19, 1961, at which time the Putnams and a Mrs. Emerick were passengers in an automobile owned by John J. Porchivina and driven by his wife, Margaret Porchivina, on Pacific Highway near Burlingame, California. The other car involved in the accident was driven by an uninsured motorist. The plaintiffs were seriously injured in the accident.

The Hartford Accident & Indemnity Company policy insuring the Porchivinas’ car contained an uninsured motorist provision and carried policy limits of $10,000/ $20,000. In the accident plaintiffs sustained damages in excess of $8,000. Under the policy the Porchivinas received the first $10,000, Mrs. Emerick $2,500, and the plaintiffs the balance of $7,500. The plaintiffs then brought suit against their own insurance company, New Amsterdam Casualty, to obtain the difference between the amount they received under the Porchivina policy and the actual damages they had sustained. The New Amsterdam policy contained an uninsured motorist provision identical to that in the Hartford policy.

The New Amsterdam Casualty Company answered plaintiffs’ complaint by asserting it owed plaintiffs nothing because there was “other insurance available” to plaintiffs; namely, the insurance under the Hartford policy, and that by the terms of the New Amsterdam policy it became excess over the Hartford policy; that there could be no excess because the policy limits in both policies were identical, $10,000/$20,000. The provision in question reads:

“5. Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.
“With respect to bodily injury to an insured while occupying or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
“Subject to the foregoing paragraphs, if the insured has other similar insurance available to him against a loss covered by this endorsement, the company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of all valid and collectible insurance against such loss.”

After a bench trial the court found in favor of the insurer and entered judgment from which the plaintiffs appeal. In the appeal the plaintiffs state that their conception of the issue presented to this court is “whether plaintiffs, only partly indemnified for their loss by the insurance on their host’s automobile, may collect on their own policy, or whether their carrier may properly invoke the defense of ‘other insurance’ under the circumstances of the instant case.”

What is basically involved in this case is the construction of a provision contained in an insurance policy. The plaintiffs’ contention is that “other insurance” means collectible insurance, and although another policy was involved, they were only partially reimbursed for their losses through that policy, and are still not made whole for their loss. No further insurance is collectible except that contained in their own policy. Plaintiffs urge that since both policies involved contain the “other insurance” provision it would be inequitable to give effect to this provision in one of the policies while not giving effect to the provision in the other policy.

The defendant argues that the provisions which appear in both policies are applicable to the plaintiffs in different ways. From the point of view of the defendant the plaintiffs were covered by the first paragraph, since the plaintiffs were the named insured who were injured while in an automobile not owned by a named insured under the New Amsterdam endorsement, and that under this provision the policy was effective only as “excess” insurance over that available from “other insurance.” The defendant concludes that since the applicable limits of both policies were identical there was no excess; therefore, the New Amsterdam policy never became operative.

The Hartford policy which had been taken out by the Porchivinas covered the plaintiffs by virtue of the second paragraph, since they were named insured under other similar insurance and were injured by being struck by an uninsured motorist. Under this provision the loss was to be computed on a pro rata basis. Thus, the applicable portion of the New Amsterdam policy provisions on “other insurance” is the “excess” clause, while the applicable portion of the Hartford policy provision on “other insurance” is the “pro rata” clause. The defendant argues that since its excess provision explicitly provided that when other insurance was available its policy applied only as excess, it should not now be called upon to reimburse the plaintiffs where there is no excess, since this would be compelling defendant to cover a risk it had not assumed.

The “other insurance” problem has resulted in a split of judicial opinion. In Oregon Automobile Ins. Co. v. United States Fidelity & Guaranty Co., 195 F2d 958 (9th Cir 1952), the court was faced with a situation similar to that in the case before us. A man named Suter, insured by United States Fidelity and Guaranty Company (USF & G), rented an automobile from Redmond who was insured by Oregon Auto Insurance Company (Oregon). Oregon’s applicable limits of liability were far in excess of USF & G’s. After Suter was involved in an accident the trial court had absolved USF & G until Oregon’s limits were exhausted, but since Oregon’s limits exceeded USF & G’s, the ruling amounted to completely absolving USF & G. Both policies had contained “other insurance” provisions. The court reversed the finding of the trial court, and stated that if the provisions of both policies were given full effect neither insurer would be liable, and such a result would be an absurdity. The court rejected the notion that the policy first written should be the primary one, stating that both policies were in effect at the time of the accident, and that the “other insurance” provisions were indistinguishable, with no rational choice to be made between them. At page 960 the court stated: “Here, where both policies carry like ‘other insurance’ provisions, we think must be held mutually repugnant and hence be disregarded.” Thus, the court’s determination was that rather than make an irrational choice between the two policies it would prorate the loss between the two companies. This rationale has been adopted by other courts, including courts in Illinois. (Continental Cas. Co. v. New Amsterdam Cas. Co., 28 Ill App2d 489, 171 NE2d 406.)

In Lamb-Weston, Inc. v. Oregon Automobile Ins. Co., 219 Ore 110, 341 P2d 110, the court reached the following sweeping conclusion at page 119:

“The ‘other insurance’ clauses of all policies are but methods used by insurers to limit their liability, whether using language that relieves them from all liability (usually referred to as an ‘escape clause’) or that used by St. Paul (usually referred to as an ‘excess clause’) or that used by Oregon (usually referred to as a ‘prorata clause’). In our opinion, whether one policy uses one clause or another, when any come in conflict with the ‘other insurance’ clause of another insurer, regardless of the nature of the clause, they are in fact repugnant and each should be rejected in toto.”

This conclusion was reached after the court realized that the only other way of resolving the dispute would be by choosing some arbitrary reasoning to determine which was the primary and which the secondary insurer.

Other cases in Illinois following the so-called Oregon or minority rule are Laurie v. Holland America Ins. Co., 31 Ill App2d 437, 176 NE2d 678; Economy Fire & Casualty Co. v. Western States Mut. Ins. Co., 49 Ill App2d 59, 198 NE2d 723. Some cases in the Illinois courts did not follow the minority rule. In New Amsterdam Cas. v. Certain Underwriters at Lloyds, London, 34 Ill2d 424, 216 NE2d 665, the Supreme Court was faced with resolving the question of liability between two insurance policies and balancing an “escape” provision from one policy against an “excess” provision in the other. In that case Fiske, the named insured of New Amsterdam, was involved in an accident while driving a rented car insured by Lloyds. The trial court held New Amsterdam solely liable, and the Appellate Court reversed, holding that each insurer should bear a pro rata share of the loss. The Supreme Court reversed the Appellate Court, and concluded that Lloyds should bear the full loss, with proceeds from the New Amsterdam policy payable only as excess. Since the required payments were within the limits of liability of the Lloyds’ policy there was no excess ; therefore, New Amsterdam ended up paying noth-. ing. New Amsterdam’s policy had provided that its in-' surance was available in excess of “other insurance,” while Lloyds’ clause provided that when one was covered by “other insurance” Lloyds escaped liability.

In New Amsterdam Cas., the court discussed Oregon Automobile Ins. Co. v. United States Fidelity & Guaranty Co., supra, and noted that the rule set out in that case was the minority rule. The court then aligned itself with the majority view, saying at page 428:

“The majority view seems to be that in the case of an apparent conflict between an ‘escape’ clause in one policy and an ‘excess’ clause in the other policy, the ‘excess’ clause is to be given effect.”

The court further said at page 430:

“The majority view seems more persuasive. We hold that the plaintiff extended its insurance to protect Fiske while driving the car involved in the accident with the permission of the named insured only for excess insurance over the valid collectible insurance available to him under the omnibus provision of the Lloyds policy. Lloyds does not escape through use of the clause denying liability if any person other than the named insured is also covered by other valid and collectible insurance, because plaintiff’s policy was not ‘other’ insurance but rather ‘excess’ coverage. Since the liability limits of the Lloyds’ policy is in excess of the amount of damages, plaintiff’s excess insurance never came into force. It did not furnish ‘other valid and collectible insurance’ and Lloyds must bear the entire amount of the damages and costs.”

In the case before us plaintiffs seek to avoid application of the New Amsterdam Cas. case by saying it is senseless to hold there was “other insurance available” to them since any other insurance there was has now been exhausted and the plaintiffs have not yet been made whole. Plaintiffs argue that “available insurance” is construed to mean “collectible insurance” and that when other insurance is not collectible the plaintiffs should be entitled to obtain a judgment against their own insurance policy so that their losses can be reimbursed. However, this argument is not supported by case law.

The conflict involved in New Amsterdam Cas. was between an “escape” clause and an “excess” clause, and the Supreme Court chose to give effect to the “excess” clause instead of throwing both clauses out and prorating the loss between the two companies. The conflict in the case before us is between a “pro rata” and an “excess” clause; therefore, the New Amsterdam Cas. case is not exactly in point. However, we think the rule laid down in that case controls the disposition of the one before us.

In Vignali v. Farmers Equitable Ins. Co., 71 Ill App2d 114, 216 NE2d 827, a case very similar to the one before us, the court applied the rule laid down in New Amsterdam Cas. to a conflict between a “pro rata” clause and an “excess” clause. The court held that since the applicable limits of the policy containing the “excess” clause did not exceed the sum of the applicable limits of liability of all other similar insurance, the company with the policy containing the “excess” clause should not be held liable in any amount.

The same rule must be applied in the case before us. Effect shall be given to the “excess” clause of the New Amsterdam policy which provided that its policy be treated as excess in the amount by which the applicable limits of the New Amsterdam policy exceeded the sum of other insurance available. Since the other insurance available contained an identical applicable limit, the New Amsterdam policy never came into effect. There was no excess, and thus there was no duty on its part to make any payments under its endorsement to the plaintiffs.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tommie Williams, Defendant-Appellant.
    Gen. No. 52,607.
    First District, Second Division.
    May 6, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    No brief for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of robbery and was sentenced to a term of one year to three years in the penitentiary. On appeal his sole contention is that he did not knowingly and understandingly waive his right to a trial by jury.

After the case was called and both sides announced they were ready for trial, the following colloquy occurred:

The Court: Is this a bench or a jury?
Mr. Vyzral (defendant’s attorney): It will be a bench trial, Judge.
Mfr. Horsky (assistant state’s attorney): Will you execute a jury waiver?
The Court: Yes. Will you come forward ?
Mr. Williams, your counsel advises me that you wish to waive your right to a jury trial and submit your cause to the court. Before permitting you to do so, it is my duty to advise you that under the law you have a right to a jury trial, if you desire.
Knowing your right, your legal right to a jury trial, do you wish to waive your right to a jury trial and submit your case to this court without a jury?
Mr. Vyzral: Do you understand that?
Defendant: (Nodding.)
Mr. Vyzral: Do you want to waive a jury?
Defendant: No.
The Court: Do you want a jury or don’t you?
Defendant: No.
Mr. Vyzral: You want a bench trial?
Defendant: Yes.
The Court: You may indicate that by signing a jury waiver now being handed to you by your counsel.

The record shows that the defendant signed a document waiving a trial by jury. The document was filed.

Whether an accused has knowingly and understanding^ waived his right to be tried by a jury depends upon the circumstances of each individual case, inasmuch as there exists no precise procedure or formula which the trial court may follow in accepting a jury waiver. People v. Wesley, 30 Ill2d 131, 133, 195 NE2d 708.

After the statement to the defendant that the court had been advised by defendant’s counsel that defendant wished to waive a jury, the trial court clearly and explicitly advised defendant of his right to be tried either by a jury or by the court. Defendant’s private counsel then asked defendant if he understood what the court had explained to him, to which defendant answered in the affirmative and which he indicated by the commonly employed gesture of a nod of the head. It is quite apparent from the colloquy which transpired thereafter that defendant misunderstood the term “waive” when his counsel asked him if he wanted to “waive a jury.” The following two questions propounded to the defendant by the court and by his private counsel leave no doubt that defendant desired to be tried by the court rather than by a jury. See People v. Novotny, 41 Ill2d 401, 408-411, 244 NE2d 182. We believe that the record establishes that defendant knowingly and understandingly waived his right to a trial by jury.

People v. Bell, 104 Ill App2d 479, 244 NE2d 321, relied upon by defendant in support of this position, involved a situation where the defendant was not adequately advised of his right to a trial by jury, as appears from the portions of the record quoted in that opinion. (It should be noted that the Court in the Bell case adhered to its position in a subsequently filed supplemental opinion denying rehearing (see 104 Ill App2d at 482), but that one of the two Justices who concurred in the original opinion filed a dissent to the supplemental opinion, stating in part, at page 485, that an implication existed in the record that the defendant responded in the affirmative when asked a question with regard to his understanding of what a jury or a jury trial was.) As stated above, each case must be determined upon its own circumstances; the Bell case involves circumstances clearly differing from those in the case now before us.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Payne, Defendant-Appellant.
    Gen. No. 52,734. (Abstract of Decision.)
    First District, Second Division.
    May 6, 1969.
    Edward M. Genson, of Chicago (Sam Adam, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in fulL


author: JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John E. Maloney (Impleaded), Defendant-Appellant.
    Gen. No. 52,800. (Abstract of Decision.)
    First District, Second Division.
    May 6, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, of counsel), for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harry Walton, Defendant-Appellant.
    Gen. No. 53,018.
    First District, Second Division.
    May 6, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a jury trial of the crime of burglary and was sentenced to a term of five years to ten years in the penitentiary. His sole contention on appeal is that the trial court improperly denied his pretrial motion for discharge under the Four Term Act.

Defendant was arrested and taken into custody on December 6,1965. The reason for his arrest is not wholly clear from the record, although it appears that he was arrested for “a shooting.” On December 8, 1965 he was specifically charged with the burglary in question and was indicted therefor on January 25, 1966. His case was called for trial April 5, 1966 at which time he presented to the trial court his motion for discharge on the ground that the State failed to bring him to trial within 120 days of his arrest.

Although it appears from the record that defendant was initially arrested on a charge other than the burglary of which he presently stands convicted and was not specifically charged with that burglary until December 8th, we need take no position in that regard in view of the number of days which elapsed between defendant’s arrest on December 6th and the date he was brought to trial. (See, e. g., People v. Jones, 33 Ill2d 357, 360, 211 NE2d 261, holding that the custody of an accused must be related to the charge from which he seeks his release under the Four Term Act.)

The Four Term Act, section 103-5 of the Criminal Code, provides that a person in the custody of the State for an alleged offense must be brought to trial within 120 days from the date he was taken into custody. Ill Rev Stats 1965, c 38, par 103-5(a). In making application for discharge under the Act, it is incumbent upon the accused to show that he was taken into custody, that he was granted no bail, that he caused no delay in his being brought to trial, and that he was not tried on the charge within 120 days from the date he was taken into custody. The record must establish each such jurisdictional fact. See People v. Morris, 3 Ill2d 437, 121 NE2d 810; People v. Tamborski, 415 Ill 466, 114 NE2d 649. Assuming, without deciding, that defendant was taken into custody for the burglary in question on December 6, 1965, it is nonetheless apparent that he failed to establish his right to be discharged on April 5, 1966 inasmuch as April 5th was the 120th day of his confinement.

Section 1.11 of the Statute on the Construction of Statutes provides in part:

“The time within which any Act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday or is a holiday . . . and then it shall also be excluded. . . .”

Ill Rev Stats 1965, c 131, par 1.11. This provision is applicable as therein stated except where such construction would be inconsistent with the manifest intention of the legislature or repugnant to the context of the particular statute involved. Ill Rev Stats 1965, c 131, par 1.

The Four Term Act is silent as to how the 120 days shall be computed. All prior criminal cases dealing with the computation of the 120 days recognize the applicability of section 1.11 of the Statute on the Construction of Statutes to the Four Term Act. See e. g., People v. Hurst, 28 Ill2d 552, 193 NE2d 19; People v. Hannon, 381 Ill 206, 44 NE2d 923; People v. O’Connell, 84 Ill App2d 184, 228 NE2d 154; and also People v. Shaw, 24 Ill2d 219, 181 NE2d 120, all of which deal with the situation where the 120th day falls on a Saturday or a Sunday, and the employment of section 1.11 to resolve the situation.

A simple computation of the number of days between December 6, 1965 and April 5, 1966, excluding December 6th and including April 5th, reveals that April 5th was the 120th day of defendant’s confinement. He was brought to trial on that day and his motion for discharge was consequently improperly made.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John S. Tadla, Defendant-Appellant.
    Gen. No. 53,250.
    First District, Second Division.
    May 6, 1969.

      Maurice A. Winkler, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty after a bench trial of the crimes of public indecency and battery. Defendant was placed on probation for a period of one year on each finding and sentenced to serve the first four months of each term at the Illinois State Farm at Vandalia, the terms to run concurrently.

Complaining witness, Marcie Bukala, testified that at approximately 8:30 a. m. on January 16, 1968 she was walking in the vicinity of 62nd Place and Central Park Avenue in Chicago on her way to a beauty school. Under her arm she carried a bag containing nurse’s shoes and a wig. The witness stated that defendant approached in a blue automobile to within five feet of her and asked if she wanted a ride. Miss Bukala testified she kept walking without speaking a word and crossed the street. Defendant thereupon drove his automobile onto the sidewalk approximately four feet in front of her, opened the door and exposed his penis to her.

Miss Bukala testified that she began to run back across the street and that defendant turned the automobile around and again drove it onto the sidewalk near her. He alighted from the vehicle and chased Miss Bukala, who dropped the bag which she was carrying under her arm. Defendant picked up the bag and, from five feet away, threw it at Miss Bukala and struck her in the face with it. He cursed her and stated, “Next time I get you, I’ll kill you.” Defendant then got back into his automobile and drove away.

Miss Bukala testified that she thought the vehicle driven by defendant was a Tempest automobile, but was not certain; that she thought the first three characters of the vehicle’s license number were “PL 5,” but was not certain; and that defendant was wearing a black leather jacket and black gloves at the time of the assault. The police were notified of the incident later that day.

On January 20th, four days after the incident, Miss Bukala was seated in her brother’s automobile parked near 62nd Street and Homan Avenue waiting for her brother to return from a nearby store, when she observed defendant drive by in a blue automobile. After her brother returned to his automobile, defendant’s automobile passed a second time and Miss Bukala’s brother followed in pursuit in his automobile. Defendant stopped his automobile a short distance away to pick up two passengers and Miss Bukala’s brother stopped his vehicle nearby, got out, and went to the driver’s window of defendant’s automobile. Miss Bukala testified that she then alighted from her brother’s automobile, went to defendant’s automobile “to make sure it was him,” and stated to her brother, “Al, that’s him.” When defendant saw Miss Bukala, he sped away in his vehicle. The police were again notified.

Several days later, Police Officer Frank Lynch, who had previously received a description of Miss Bukala’s assailant, was detailed to patrol an area of the city where a person fitting the assailant’s description “was operating . . . from 9:00 to 9:30 in the morning.” The officer observed an automobile driven by defendant traveling aimlessly in the area, and after following the automobile for five blocks, the officer ordered it stopped. Defendant matched the description which the officer had of Miss Bukala’s assailant and defendant was placed under arrest.

The testimony of Miss Bukala’s brother substantially corroborated the testimony of Miss Bukala concerning the events which took place on January 20th. Defendant’s objection to Miss Bukala’s brother’s testimony was overruled.

John Tadla testified that he lived with his parents in the 6300 block of South Latrobe Avenue in Chicago and that he was employed in Lincolnwood, Illinois. He testified that he worked until 7:00 a. m. on the morning of January 16, 1968 and that he left work approximately 7:30 a. m. and went to a nearby bowling alley where he usually had breakfast with several of his fellow employees. He testified that he remained at the bowling alley until 8:30 a. m. and then proceeded home, a trip which takes from 45 minutes to an hour to drive. Defendant stated he arrived home approximately 9:00 a. m., told his mother he was home, and went to bed.

Defendant further testified that on the morning in question he was operating a 1966 Ford Galaxie automobile and also testified that neither he nor his mother owned or operated a Tempest automobile. Defendant denied owning a black leather jacket or black gloves, and further denied assaulting Miss Bukala, exposing himself to her, or speaking to her on the morning in question.

Defendant’s mother testified that defendant returned home from work at approximately 9:00 a. m. on the morning in question and that on that date he was driving a 1966 Ford Galaxie automobile. She further testified that defendant did not own a black leather jacket or black gloves. Defendant’s supervisor at work testified as to defendant’s good moral character and reputation in the community.

Defendant first maintains that the trial court was without power to admit him to probation for a period in excess of the maximum term for which he could have been imprisoned under the statute defining the crime with which he was charged. He argues that the trial court was in error in placing him on probation for a period of one year on each finding of guilty because the statutes under which he was found guilty set the maximum term of incarceration at six months. (Defendant’s argument in this regard must be limited to the period of probation set with respect to the battery finding, since the maximum term of imprisonment which could have been imposed on a finding of guilty of public indecency was changed from six months to one year prior to January 16, 1968, the date of the incident in question.) See Ill Rev Stats 1967, c 38, pars 11-9,12-3.

No case from Rlinois has been cited, nor have we found any, dealing with the question of whether a defendant, after a plea, a finding or a verdict of guilty, may be placed on probation for a period which exceeds the maximum term of imprisonment to which he may have been sentenced under the statute defining the crime of which he was convicted.

In those jurisdictions where the length of the period of probation may not exceed the maximum period for which a defendant could have been imprisoned, the question is specifically governed by statute; but in those jurisdictions where the probation statute does not specifically cover the question, it has been generally held that the length of the period of probation may exceed the maximum term for which a defendant may be imprisoned. See 24 CJS, Criminal Law, §§ 1571(4), 1618(9), and the cases cited therein. (See also Driver v. United States, 232 F2d 418; Hollandsworth v. United States, 34 F2d 423; United States v. Sumpter, 287 F Supp 608; 18 USCA, par 3651.) We are of the opinion that a defendant convicted of a crime may be admitted to probation for a term longer than the period of imprisonment to which he might otherwise have been sentenced under the statute defining the crime.

The statute governing probation in Illinois is found in Article 117 of the Criminal Code. Paragraph 117-1 specifically recites that the term of probation may be for a period of not less than six months and that it shall not exceed five years. Ill Rev Stats 1967, c 38, par 117-1 (b). Nothing in the probation statute relates to the question of whether the period of probation may be fixed for a length of time in excess of the period for which the defendant might otherwise be incarcerated under the terms of the particular statute defining the crime. Nevertheless, it has consistently been held that the question of whether a defendant shall be admitted to probation as well as the question of the length of the period of probation, within the limits set out in the probation statute, are for the sound discretion of the trial court after an analysis of the defendant’s history, record, family life, and the like. People v. Husser, 94 Ill App2d 33, 236 NE2d 735.

As stated in the Committee Comments to Article 117 of the Criminal Code, the purpose of probation is to afford an unhardened person convicted of a crime the opportunity to rehabilitate himself under the supervision of a probation officer without institutional confinement. We do not have the suspended sentence aspect of probation employed in other jurisdictions. (See SHA, c 38, Art 117, p 3.) A person admitted to probation is subject to specified mandatory conditions set out in Article 117, as well as other conditions specified therein as the trial court, in its discretion, may order. Ill Rev Stats 1967, c 38, par 117-2; People v. McAndrew, 96 Ill App2d 441, 239 NE2d 314. In the event the probationer violates a condition of his probation, and the trial court so determines, the probationer is protected to the extent that the court may either alter the conditions of probation or “imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.” Ill Rev Stats 1967, c 38, par 117-3 (d); People v. White, 93 Ill App2d 283, 235 NE2d 393.

Defendant next contends that the trial court was influenced by improper evidence, erroneously admitted over objections by the defendant. He first states that the court improperly allowed a statement made by Miss Bukala to her brother, allegedly out of the presence of the defendant, that the defendant was her assailant. However, it appears that Miss Bukala made the statement to her brother on two separate occasions on January 20th, the first time while she and her brother were seated in his automobile, admittedly outside the presence of the defendant, to which an objection by defendant was sustained. The second time the statement was made was after Miss Bukala’s brother had alighted from his automobile and approached the vehicle in which defendant was seated, and after Miss Bukala had gotten out of the automobile in order to “be sure it was him.” The trial court overruled an objection to this second statement because, as the court stated, Miss Bukala testified “that her brother is [sic] by the window of the automobile of John [Tadla] when she said that.”

The other allegedly improper evidence heard by the trial court over objection of the defendant is the testimony of Miss Bukala’s brother concerning the events which took place on January 20th. This evidence corroborates the testimony of Miss Bukala as to the person identified by her as her assailant and was properly admitted.

Defendant’s third point is that Miss Bukala was not a credible witness. He states that she was uncertain at trial as to the make of the automobile driven by her assailant, whereas she told the police she was certain of it; that she was uncertain as to the license number of that vehicle, whereas she also told the police she was certain of it; and that she testified that defendant wore a black leather jacket and gloves on the day of the assault, whereas both defendant and his mother denied defendant’s ownership of such articles of clothing. These matters went to the credibility of the witness, to be resolved by the trier of fact. People v. Boney, 28 Ill2d 505, 192 NE2d 920. In light of the accurate description and unimpeached identification of defendant given by Miss Bukala, her clear account of the incident, unaffected on cross-examination, and the ample time and opportunity she had to observe her assailant at the time of the incident, we are unable to say that the trial court was in error in finding her testimony credible.

Defendant raises the argument that the two crimes of which he was found guilty were in reality a single transaction and that he therefore should have been found guilty on one or the other count, not both. Apart from the fact that this matter was raised for the first time on this appeal in defendant’s reply brief, a consideration of the facts of the case clearly reveals that defendant’s acts of public exposure and of battery were separate and distinct acts.

The final point raised by defendant, that the penalties imposed by the trial court were excessive, is unavailing. The penalties were well within the limits set by the respective pertinent statutes.

For these reasons the judgments are affirmed.

Judgments affirmed.

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


author: MR. JUSTICE McNAMARA

text:
    Lucille A. Foster, Plaintiff and Counterdefendant-Appellant, v. George E. Foster, Defendant and Counterplaintiff-Appellee.
    Gen. No. 51,938.
    First District, Fourth Division.
    May 7, 1969.

      Fischer, Guy, Jacobson & Pauker, of Chicago (David H. Pauker and Stanley Grosshandler, of counsel), for appellant.
    Milroy Blowitz, Harold A. Liebenson, and Edward G. Raszus, of Chicago (Harold A. Liebenson and Edward G. Raszus, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, Lucille A. Foster, appeals from a decree which dismissed her complaint for separate maintenance and awarded a divorce to her husband, George E. Foster. The wife filed suit for separate maintenance on the ground of desertion, and the husband counterclaimed for divorce on the same grounds. The chancellor found the wife to be the deserter, awarded the divorce to the husband, and her appeal follows.

The issue to be determined is whether the husband had reasonable cause for leaving the marital home so as to constitute the wife as the deserter, or whether by his departure he became the deserter. Certain facts are undisputed.

The parties were married on August 19, 1938, and became separated on February 20, 1965. From 1939 to the date of their separation they lived at 7917 South Yale, Chicago in a single-family residence jointly owned by them. At the time of trial, the wife still lived there, while the husband resided in an apartment at 5701 Sheridan Road, Chicago. The couple had no children. The wife was a schoolteacher throughout the marriage until she retired in 1961 at the age of 52 because of ill health. The husband was the president and sole shareholder of an engineering corporation specializing in electronic fabrication. The wife was an excellent housekeeper, did all the laundry and personally prepared the husband’s meals until the separation. The marriage was harmonious for many years, and the couple took yearly trips to Florida in the plane owned by the husband’s company. The couple also went to Europe in 1962, and to Hawaii in 1963. The parties discontinued having sexual relations in the early part of 1961 and never resumed them. For several years prior to their separation, the parties quarreled about moving from their home. Although it was the wife who wished to remain in their home and the husband who wished to move, at one time without consulting her husband, the wife made a deposit on a cooperative apartment in another neighborhood. However the husband did not wish to become involved in such an ownership arrangement, and she received a refund.

On the morning of February 20,1965, they breakfasted together. After the wife left to attend a luncheon, the husband took his clothing and moved into a room at the Sands Motel on the north side of Chicago. He had not told his wife of his intention to leave, and she first learned of it when upon her return she telephoned him at work to ask about his missing clothes. He returned the next day to get the remainder of his belongings, and she helped him carry some of the heavier material. In April, 1965, he moved from the motel to a 4-room apartment on Sheridan Road. The wife has never seen the apartment. After the husband left home, the wife wrote him several times asking him to return, and he believed that she wished him to return.

In addition to the above undisputed facts, the wife testified that difficulty in the marriage began to occur in 1960 when her health started to deteriorate. After that her husband spent more time at his plant, came home infrequently for dinner, talked to her less and shared few activities with her. In the early part of 1961, she refused once to engage in sexual relations with her husband because of a painful back ailment, but this refusal did not anger her husband who was understanding about it and concerned about her health. She further testified that this back ailment continued for only two or three months, and that she then informed him that she was willing to resume relations, but that he refused. The wife also testified that for several years prior to the separation her husband talked about moving. Their neighborhood had changed racially and he said he was tired of the house. He never made a suggestion as to where they should move, and said that he was too busy when she asked about looking for another residence. She did not discover until several weeks after the separation that her husband was staying at the Sands Motel. She then learned from the clerk at the motel that he had moved to an apartment. Subsequently she asked her husband if she might see the apartment, but he said that it wasn’t finished. She also testified that while she loved her home and was involved in many community activities in her neighborhood she would be willing to move to another area if the new residence had as much space as their present home. She did not believe that the four-room apartment in which her husband was living would be large enough for her furniture and pets.

The husband testified that his wife and he had discontinued having sexual relations in 1961 because of his wife’s physical ailment. He wished her to go to a doctor, but because of her religion she refused to do so. For two or three years thereafter, he had requested that they resume relations but she declined. Then once she suggested having sexual relations, but he was caught by surprise and refused. Outside of that one occasion there was no other request on her part to resume any sexual life. He and his wife had quarreled about moving from their home for about eight years. In early 1964 they once walked over to look at town houses in Hyde Park, but even before considering it she insisted that they would never move from their home. During this time he had also wished to move his factory to the north side. In August, 1964, they had a violent quarrel about that, and she was upset for days. At that time she said it was foolish to move the factory to the north side, that she would never move north with him, and that she would leave him if he moved the factory. When she learned that he had already signed the lease to move the factory, she did not leave him.

The husband further testified on direct examination that the day after he left home he informed his wife that he was staying at the Sands Motel and that she was welcome to join him. He also testified on direct examination that about a week after he moved from the motel to the apartment he informed his wife of the move and that she was welcome to join him. On cross-examination and under questioning by the judge, the husband testified that he had never invited his wife to join him at the motel or in the apartment, that he had never asked her to help him select an apartment, and that she asked to visit his apartment, but he refused.

Where a trial court has heard the evidence with its opportunity to see the witnesses, a reviewing court will not substitute its findings for those of the trial court unless such findings are manifestly against the weight of evidence. Gillespie v. Gillespie, 70 Ill App2d 38, 216 NE2d 462 (1966). However, where the record discloses a lack of evidence to sustain a decree, reviewing courts will not hesitate to reverse. Fowler v. Fowler, 315 Ill App 270, 42 NE2d 954 (1942).

We recognize that in finding that the wife was the deserter, the trial court accepted the testimony of the husband as true. In that light, this court shall examine his testimony to see if it sustains the decree.

It is well settled in Hlinois that refusal of sexual relations by one party does not constitute desertion, since such a refusal is a violation of only one aspect of marital life. Rather desertion “imports a cessation of cohabitation, a refusal to live together, which involves an abnegation of all the duties and obligations resulting from the marriage contract.” Fritz v. Fritz, 138 Ill 436, 440, 28 NE 1058 (1891). See also Mathews v. Mathews, 227 Ill App 465 (1923); Lewand v. Lewand, 335 Ill App 573, 82 NE2d 364 (1948).

Accordingly, even accepting the husband’s testimony that the wife refused to have sexual relations except for the one instance, this conduct of itself would not constitute desertion. It should also be noted that neither party testified as to any arguments over the wife’s refusal to engage in sexual relations nor that any of their differences arose from the cessation of such relations. In fact, although the husband testified that he had frequently requested a resumption of a sex life, he also stated that the cessation was caused by the wife’s physical ailments.

While the husband concedes that refusal of sexual intercourse of itself is not desertion, he urges that it be considered as a factor, along with the rule that the domicile of the husband is that of the wife, and her refusal, without justification, to accompany him to a new domicile constitutes desertion on her part. Kennedy v. Kennedy, 87 Ill 250 (1877); Karman v. Karman, 24 Ill App2d 123, 165 NE2d 521 (1960).

Although we recognize the above rule as valid and well settled, we find it inapplicable under the facts elicited from the husband. Without any warning or notice to his wife, he left home and moved into a motel room. Two months after that he leased an apartment. He never invited his wife to join him in either place. While staying at the motel he did not inform his wife that he was looking for an apartment. He did not tell her about the apartment until he had lived there a week. When she learned that he was living in an apartment and asked to visit it he refused. None of his conduct was consistent with that of a man anxious to make a new home for his wife.

We appreciate the husband’s desire to relocate his place of business and to have his residence close thereto. In view of his position with the corporation these were properly decisions for him to make. But he also had the obligation to give his wife the opportunity to share this move with him. Having departed home as he did and having concealed his moves even if only temporarily from her, he cannot now maintain that his wife deserted him by failing to move in with him without invitation when she learned of his whereabouts.

Nor can we find from the evidence offered by the husband that the wife’s intention to live apart was fixed, so that it would have been futile for him to offer to establish a home or request that they move together to a new home. Bateman v. Bateman, 337 Ill App 7, 85 NE2d 196 (1949). Although he testified that for several years he and his wife had quarreled about his desire to move and her insistence that they not move, he referred to only two specific instances of such quarrels: early in 1964 when they looked at some townhouses and later in the same year when she said she would leave him if he moved his plant. These two instances would hardly qualify as proof of his wife’s determination never to make a new home with him. Moreover her conduct in making a deposit on another apartment reveals that her desire to stay in their home was not so fixed that she would not have joined her husband if asked.

Cases cited by the husband as strongly supporting his position, Karman v. Karman, 24 Ill App2d 123, 164 NE2d 521 (1960), and Gillespie v. Gillespie, 70 Ill App2d 38, 216 NE2d 462 (1966), are clearly distinguishable from the instant case. In the Karman case, a husband aged 77 years and a wife aged 62 years were married for less than a month when she ordered him to leave. She had also refused to have sexual relations with him after just 13 days of marriage. In the Gillespie case, the court found that the husband was entitled to a divorce on the grounds of desertion where he left home after his wife refused to have sexual relations with him, refused to cook his meals or clean his room and refused to talk to him. In each of these cases, the court properly found that while the husband physically departed from home, it was the wife who extinguished the marital relationship and was the actual deserter. That is not the evidence in the instant case.

A careful consideration of the record leads us to the conclusion that there was insufficient legal basis for the award of a decree of divorce to the husband on the grounds of desertion.

Since we find that the wife did not desert her husband, we must find that the parties are living separate and apart through no fault of hers, and that she is entitled to a decree of separate maintenance.

For the foregoing reasons, the decree is reversed and the cause is remanded with directions to enter a decree dismissing the counterclaim of George E. Foster for want of equity, granting a decree of separate maintenance to Lucille A. Foster and for further proceedings pursuant to law.

Decree reversed and cause remanded with directions.

DRUCKER, P. J. and STAMOS, J., concur.