text:
    People of the State of Illinois, Plaintiff-Appellee, v. Andrew Gates and Eugene Gates, Defendants-Appellants.
    Gen. No. 53,226.
    First District, Fourth Division.
    March 31, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Armed robbery. Ill Rev Stats 1967, c 38, § 18-2.

Attempt (to commit the offense of rape). Ill Rev Stats 1967, c 38, § 8-4.

Aggravated battery. Ill Rev Stats 1967, c 38, §§ 12-4, 12-4 (b)(1).

JUDGMENT

After a bench trial, defendants were found guilty of all charges and sentenced to 20 to 40 years (Andrew Gates) and 5 to 20 years (Eugene Gates) for armed robbery, 10 to 14 years (Andrew Gates) and 5 to 10 years (Eugene Gates) for attempt, and. 9 to 10 years (Andrew Gates) and 5 to 10 years (Eugene Gates) for aggravated battery, all sentences to run concurrently.

POINTS RAISED ON APPEAL

1. Defendants’ motion to suppress evidence was erroneously denied.

2. Defendants were denied the right to counsel during a showup held while the victim was in the hospital.

3. The display and marking of a knife for identification, when not connected with the crime and not offered into evidence, constituted prejudice.

4. Defendants were not proven guilty beyond a reasonable doubt.

5. Defendants were improperly convicted of several offenses arising from the same transaction.

EVIDENCE

Lottie Wozniak, for the State:

On September 24, 1967, at approximately 4:30 a. m., she got on a bus to take her to work at County Hospital. She got off the bus at Chicago Avenue at 5:00 a. m., ran up the street to catch another, missed it, and started to look for a cab. She saw a man, identified by her as defendant Andrew Gates, “walking all by himself” toward her. She “continued looking for a cab” and “got scared,” so she started to go across the street but a car pulled up and blocked the way.

The witness “couldn’t take a good look” at the driver, but she did get a good look at the passenger. At that point, Andrew “jumped up,” grabbed and held her from the back, put a knife to her neck, and said, “Just shut up and keep walking.” She offered to open her purse and give Andrew her wallet, but he told her to shut up. A man, identified by her as defendant Eugene Gates, ran up from the car and grabbed the purse.

Andrew told her to keep walking until they got to a parking lot next to the alley where he said, “lay down.” He punched her in the ear and said, “on your back.” As soon as she was down, he “unzipped himself and went on top of me. He monkeys around. When he’s through he got up.” She then promised not to reveal this to anyone and asked to be let go, but he said no and punched her in the nose.

He made her get down again and was “doing the same thing” but this time “he’s going with his hand under my brassiere and in my girdle.” Andrew then asked for her rings, but she told him they were tight and wouldn’t come off. She then heard the car and again asked to get up. Andrew said, “No, you’re through,” and jabbed the knife into her throat, causing the blood to come “swishing” out. She went straight to County Hospital where she spent two days, then went to another hospital for 12 days.

The streetlights were on the entire time and there was “plenty of light.” She saw Eugene twice during the incident, once when he stopped the car to block her way, and again when he grabbed the purse. The whole occurrence took about twenty minutes.

About twelve days after the occurrence, while still in the hospital, she identified both defendants. She was brought into a room where she saw the defendants and two detectives.

John Baran, for the State:

He was a police detective and on September 24, 1967, was assigned to investigate an armed robbery. He first interviewed Lottie Wozniak. He also visited her in the hospital on September 28, showing her FBI photographs, and he returned on October 1 and 4 to show her more photographs.

He and his partner thereafter went to 450 North Sangamon and arrested defendants, who were then taken to Area 4 Robbery headquarters for about 15 minutes. He then took defendants to the hospital where the victim viewed them, and they were taken back to headquarters and charged.

John Baran, for the defense (previously called by the State):

He first spoke to the victim around 9:00 a. m. on the day of the occurrence, at which time “she only described the one offender very briefly.” The description he eventually received of defendants was obtained from Mrs. Wozniak at the hospital by other police officers later the same day.

Sara Ann Phillip, for the defense:

Defendants are her brothers. About 7:00 p. m., on September 23,.Eugene arrived at the witness’ house and remained until 5:00 or 6:00 p. m., Sunday evening, September 24. There was a party attended by about 10 or 11 persons. Five people, including Eugene and herself, stayed up all night playing cards, talking, and drinking beer. Eugene did not leave the house early that morning. Andrew arrived about the same time as Eugene, but left about 10:00 or 11:00 p. m. that same night.

It is not unusual for her to give this type of party. She “might have had a couple” in August, 1967, and didn’t remember any other such party in September. She did “remember that particular night.”

Larry Carson, for the defense:

He is 18 years old, and arrived along with Andrew at the party given by Sara Ann Phillip at 8:30 p. m. Andrew left about 11:00 or 11:30 p. m., but he [the witness] stayed all night with Eugene and Sara. Eugene did not leave that morning at 5:00 a. m.

Q. Z. Gates, for the defense:

She is the defendants’ mother. On September 23, Andrew came home at 11:00 p. m. and went to bed at 12:00 p. m. When she got up at 3:00 a. m. and took a bath, she saw Andrew in bed. She again saw him in bed at 4:45 a. m. when she got up. Andrew didn’t leave the house until noon, September 24.

Andrew Gates, in his own behalf:

He was at the party and left at 10:05 p. m. with George Burgle to take his girl friend home. He got home at 11:00 p. m., rested on the couch, and went to bed about 12:15 a. m. He woke up at 8:30 a. m. and had not left the house at any time.

Eugene Gates, in his own behalf:

His testimony, in essential part, is the same as that of his sister, Sara. In addition, he testified that sometime after 3:30 a. m., on the morning in question, Sara was lying across the bed in the bedroom. He was watching television until 5:30 a. m. He denied seeing the victim on September 24,1967.

OPINION

Defendants first contend that their motion to suppress the in-court identifications was improperly denied, in light of the fact that the prior confrontation between the victim and defendants was so prejudicial as to deprive defendants of due process of law, citing Stovall v. Denno, 388 US 293. Two Caucasian police officers, out of uniform, arrested defendants, who are Negro, and brought them to the hospital where the victim was spending her final day of hospitalization in recovering from her injuries. Mrs. Wozniak testified that she was escorted into the room where defendants were being held, and identified them as her assailants.

The court, in denying the motion at the close of the evidence, stated that the testimony had been received solely for the purpose of the motion and was not necessary evidence for the case in chief; that the in-court identification had an adequate, independent source. We believe the court’s ruling was correct.

We have previously held that “it should make no difference whether an identification procedure is or is not unnecessarily suggestive so long as the record clearly shows a prior observation of defendant sufficient to serve as an independent origin for the in-court identification.” People v. Cook, 113 Ill App2d 231, 239, 252 NE 2d 29. See, also, People v. Nelson, 40 Ill2d 146, 151, 238 NE2d 378; People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; and People v. McMath, 104 Ill App2d 302, 312-313, 244 NE2d 330, affirmed, 40 Ill2d 388, 240 NE2d 593. Assuming, in the instant case, that the procedure of the hospital “showup” was unnecessarily suggestive (see Stovall, supra), the victim testified that at the scene of the crime, she had observed defendant Andrew Gates for 20 minutes under good lighting conditions, and, further, that she had observed defendant Eugene Gates for several minutes from a distance of a few feet under the same lighting conditions. There is no evidence in the record that the victim failed to identify defendants when given the opportunity to do so, nor that her testimony was shaken in any way, nor is there any conflicting identification testimony. We believe that the evidence is convincing that the courtroom identification had an independent origin arising from the witness’ prior observation of defendants at the time of the crimes.

Defendants next contend that they were unfairly denied the right to counsel at the hospital “show-up,” relying on United States v. Wade, 388 US 218, and Gilbert v. California, 388 US 263. The Illinois Supreme Court has held that “these 'lineup’ decisions apply only to post-indictment confrontations.” People v. Palmer, 41 Ill2d 571, 572, 244 NE2d 173. The case at bar involves an identification procedure that took place prior to indictment which, under the Illinois interpretation, is not a “critical stage” of the proceedings, so the rule of Wade and Gilbert is inapplicable here.

The State marked a knife as an exhibit but did not attempt to place it in evidence or connect it to the crime. This conduct, defendants urge, constitutes patent prejudice, as it tends, unnecessarily, to inflame the trier of fact. As we have noted, this action was tried by the court without a jury. A judge is not as susceptible as a jury to prejudice which might arise from this sort of incident, particularly in a case such as this where the exhibit was not admitted or offered into evidence. Under the circumstances of this case, with the victim’s strong testimony concerning her having been wounded in the throat by a knife, coupled with her hospitalization therefor and her residual scar, the display of a knife in court was of little consequence, and does not constitute a sufficient ground for reversal.

Defendants also contend that the “overwhelming” alibi evidence offered in their behalf clearly outweighs the sole incriminating testimony of the victim so as to leave at least a reasonable doubt of their guilt. A careful perusal of the record illustrates some discrepancies in the testimony of the alibi witnesses, and does not, on its face, rule out the possibility that defendants could have committed the crimes. We will not disturb the trial court’s determination of the credibility and weight to be accorded the testimony of an alibi witness unless it is “palpably erroneous.” People v. Ostrand, 35 Ill2d 520, 532-533, 221 NE2d 499. Moreover, where identification of an accused is at issue, testimony of a sole witness is sufficient to convict, even though defendant has offered contradictions by way of alibi, provided the witness is credible and was able to make positive identification of the accused. See People v. Brinkley, 33 Ill2d 403, 211 NE2d 730. The instant identification testimony is consistent, strong and firm, in comparison with the alibi evidence. The testimony of Mrs. Wozniak is sufficient to establish the guilt of both defendants beyond a reasonable doubt.

Defendants lastly contend that they were improperly convicted of several offenses arising from the same transaction, citing People v. Duszkewycz, 27 Ill2d 257,189 NE2d 299. We consider this to be without merit, as defendants’ acts did not constitute one single transaction, but, rather, represented divisible conduct resulting in three separate offenses. The robbery was complete before the rape was attempted, and that offense had been completed before the stabbing. While we recognize that the acts of defendants were not wholly unrelated, nevertheless, the three offenses, involving three different mental states, did not result from the same “conduct,” as that term is defined and used in sections 2-4 and 1-7 (m) of the Criminal Code (Ill Rev Stats 1967, c 38, §§2-4 and 1-7 (m)). See People v. Baker, 114 Ill App2d 450, 453-457, 252 NE2d 693 and cases there cited.

The judgments of the Circuit Court are affirmed as to both defendants.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Edward Bridges, Defendant-Appellee.
    Gen. Nos. 54,067, 54,068.
    First District, Fourth Division.
    March 31, 1970.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Matthew Moran and John O. Clarke, Assistant State’s Attorneys, of counsel), for appellant.
    No brief for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Two complaints charged defendant with unlawful possession of a depressant drug, and unlawful possession of hypodermic needles. Ill Rev Stats 1967, c 111½, § 802(c) and c 38, § 22-50. The State has appealed from the trial court’s allowance of defendant’s motion to suppress as evidence certain barbiturates (discovered in a small tin container which a police officer testified he had seen defendant drop to the ground) and hypodermic needles (found on defendant’s person during a subsequent search). No brief has been filed by defendant.

The arresting officer, Thure Mills, testified, on direct examination, that he was patrolling the Fuller School area with his partner in response to a police department call concerning gang activities. He observed defendant and another man walking past the unmarked squad car.

Defendant saw the out-of-uniform officers and threw a small tin container to the ground. Mills picked up the box, examined its contents, and placed defendant under arrest. Then they searched defendant and found the hypodermic needles.

On cross-examination, the officer testified that, after seeing the container dropped, he yelled to defendant to stop, picked up the container, and then examined its contents.

The Assistant State’s Attorney requested a finding of fact to clarify the order of events. The judge responded that “the officer said he stopped him before he picked up the box.” The prosecutor replied, “Yes, your honor.” The judge subsequently stated his finding of fact “that the officer detained the man by saying stop which is technically under arrest for no cause. He then picks up something, looks at it and then he thought it may be a dangerous drug after he arrested him.” The court also stated, as a finding of fact, that the container was dropped after the officer said stop. Officer Mills was the only witness who testified on the motion to suppress.

Initially, the State contests the court’s finding of fact that the officer said “stop” before the accused dropped the container. A thorough examination of the record reveals that the only reference to a communication from the witness to defendant came on cross-examination when he testified he saw the tin drop, defendant continued walking, and he then told defendant to stop. The finding of fact to the contrary by the trial court is unsubstantiated in the record.

The basic substantive issue in this action is whether the suppressed evidence was obtained by the police as a result of an illegal and unreasonable search and seizure, in violation of Article II, section 6, of this State’s constitution and the fourth amendment of the United States constitution. Our concern, therefore, is directed toward the reasonableness of the police action for “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 US 206, 222; Terry v. Ohio, 392 US 1, 9; People v. McCracken, 30 Ill2d 425, 429, 197 NE2d 35; People v. Georgev, 38 Ill2d 165, 171, 230 NE2d 851. See also People v. Machroli, 44 Ill2d 222, 225, 254 NE2d 450 (dissenting opinion). We note that our Supreme Court has consistently upheld the actions of a police officer as reasonable when he makes a warrantless search of the person incidental to a valid arrest. People v. McCrimmon, 37 Ill2d 40, 224 NE2d 822; People v. Hanna, 42 Ill 2d 323, 247 NE2d 610.

Before meeting the constitutional issue, it becomes necessary to determine the precise point in time when the arrest was made. The trial judge ruled that the arrest was technically made when the officer said “stop” to defendant. If, arguendo, the arrest did take place at this point, there would be a serious doubt as to the existence of probable cause to make such arrest, and this would greatly affect the reasonableness of the resultant search. Also, as we have already noted, when the trial judge made his ruling, he misinterpreted the facts relating to the dropping of the box. Our inquiry into the time of the arrest is further dictated because the order appealed from involves the suppression of two evidentiary items seized at different times by different means, and each is the foundation for a separate complaint against defendant. The police obtained the barbiturates by picking them up after they had been dropped on the ground. The hypodermic needles were discovered in a later search of defendant’s person.

The first question for our consideration is whether an arrest was effectuated when the out-of-uniform police officer yelled “stop” and defendant obeyed. A somewhat similar factual situation was present in People v. Mirbelle, 276 Ill App 533, but with the significant difference that the police officers, who had observed defendant near the scene of a recent robbery, drew their guns and shouted, “Stick them up, we are police officers, stick them up.” This was held to constitute an arrest. The court declared that in the legal sense of the term, an arrest involves three elements: authority, intention, and a restraint of the person. Mirbelle, supra, at 541. This definition was amplified in People v. Jackson, 98 Ill App2d 238, 240 NE2d 421, where the court stated at page 244:

An arrest, in the sense we are concerned with here, requires a purpose or intention to effect an arrest under a real or pretended authority, an actual or constructive seizure or detention of the person to be arrested by one having the present power to control him, a communication by the arresting officer of his intention to arrest, and an understanding by the person to be arrested that such is the intention of the arresting officer. See 4 Words and Phrases, Arrest, p 234 et seq., 5 Am Jur2d, Arrest, § 1.

This principle has, to a limited extent, been codified in the Code of Criminal Procedure as follows:

“Arrest” means the taking of a person into custody. (Ill Rev Stats 1967, c 38, § 102-5.)
An arrest is made by an actual restraint of the person or by his submission to custody. (Ill Rev Stats 1967, c 38, § 107-5(a).)

The pivotal element of the Mirbelle definition, when applied to the facts of the instant case, is the “intention” of both the police officer and defendant. The word “stop” is not necessarily to be construed in every instance as a communication of an intention to arrest, and in order for it to warrant that connotation, it must be coupled with sufficient other circumstances to indicate the intent. We do not find any such circumstances present in the case at bar. The officers did not display a gun, nor was either in uniform. We do not believe that the evidence established an immediate intention on the part of the officers to effectuate an arrest when defendant acquiesced in their command to stop.

Perhaps more important in this case, however, is the “understanding by the person to be arrested that such is the intention of the arresting officer.” People v. Jackson, supra. As stated in Mirbelle, “there must be an intention, understood by the one arrested, to accomplish the arrest.” In Hicks v. United States, 382 F2d 158 (DC), the court felt that, although the thought processes of police officers and defendants were to be considered, Applying either the reasoning of Hicks or that in Jackson and Mirbelle, the conclusion based on the facts of this case is the same. When defendant was told to stop, he did not have reasonable ground to believe that he was under arrest. It is possible that his “submission” was subject to a belief that he might be questioned, but that is quite a different matter. He may even have been aware, from his own personal experience, that the out-of-uniform policeman was, in fact, a policeman, but this would be nothing more than speculation, which finds no support in the record. Further, there was no overt demonstration of any kind by the two men in the automobile to indicate that they were police officers. And a person told to “stop” by someone present behind him in an area of gang activity is likely to obey. We conclude, therefore, that defendant, or a reasonable man under the circumstances of this case, would not think that he had been arrested.

the test must be not what the defendant . . . thought, but what a reasonable man, innocent of any crime, would have thought had he been in defendant’s shoes. United States v. McKethan, 247 F Supp 324, 328.

For the foregoing reasons, we find that no arrest was made by the officers at the moment defendant restricted his movement upon hearing the word “stop.” We are also compelled to this decision because the contrary result would seriously impede law enforcement by severely limiting proper police investigatory procedures. In Terry v. Ohio, 392 US 1, 22, the Supreme Court, discussing the governmental interest in effective crime prevention and detection, stated that

it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.

This underscores the need for and legitimacy of the policeman’s investigative function. To hold that every person has been arrested when stopped by a policeman under circumstances suspicious enough merely to warrant investigation, would be a misguided exercise of the judicial function, with consequent unfortunate results.

The “fact-finding” process utilized by police has been left intact even in recent pronouncements which have generally placed increased burdens on police officers in the exercise of their duties. As stated in one such case, Miranda v. Arizona, 384 US 436, at page 477:

Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.

See also Escobedo v. Illinois, 378 US 478 and United States v. Clark, 294 F Supp 1108.

The next important fact in the brief sequence of events in the instant case occurred when the officer picked up the container and examined its contents. The tin box contained two capsules, “blue and white, blue, red in color.” The officer testified that it was immediately subsequent to this examination that defendant was placed under arrest. A laboratory test justified the officer’s quick conclusion" that the capsules were barbiturates, possession of which is a criminal offense (with certain exceptions not pertinent here). Ill Rev Stats 1967, c 111%, § 802 (c). Having seen that the box of capsules was not taken incident to an arrest, whether lawful or unlawful, the question, then, is whether, under these circumstances, the trial court correctly suppressed the capsules as evidence. We believe it did not.

The officer had observed defendant drop the container to the ground under circumstances sufficiently suspicious to warrant an investigation. See People v. Cummings, 38 Ill2d 11, 230 NE2d 187. The tin container was in plain and open view on the ground, having been abandoned by defendant. As to the barbiturates, therefore, there obviously was no search. “A search implies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view.” People v. Davis, 33 Ill2d 134, 210 NE2d 530; People v. Woods, 26 Ill2d 557, 188 NE2d 1; People v. Heidman, 11 Ill2d 501, 144 NE2d 580. See, particularly, People v. Sylvester, 43 Ill2d 325, 327-328, 253 NE2d 429.

Nor was there an unlawful seizure of the capsules. In Trujillo v. United States, 294 F2d 583, under a similar factual circumstance, the court, in discussing the reasonableness of a seizure of abandoned goods, stated at pages 583-4:

There was no seizure in disregard of any lawful right when the officers retrieved and examined the packets which had been dropped in a public place. [Citations omitted.] As the evidence was obtained prior to and independent of arrest, the arguments of counsel as to the legality of the arrest merit no consideration. (Emphasis supplied.)

We believe that the seizure of the abandoned tin box of capsules was reasonable, there having been no provocation by the officers which could be said to have forced defendant to drop it. The capsules should therefore not have been suppressed as evidence. People v. Sylvester, 43 Ill2d 325, 327-328, 253 NE2d 429.

Defendant’s arrest followed the seizure and examination of the tin’s contents. We believe that reasonable grounds then existed for the placing of defendant under arrest. Ill Rev Stats 1967, c 38, § 107-2 (c). Probable cause for arrest exists when the arresting officer possesses knowledge of facts and circumstances sufficient to justify a “man of reasonable caution” in believing that an offense is being, or has been, committed by the person arrested. People v. Peak, 29 Ill2d 343, 348, 194 NE2d 322. See People v. McCrimmon, 37 Ill2d 40, 43, 224 NE2d 822.

The final issue concerns the suppression of the hypodermic needles, discovered as a result of a search of defendant’s person following his arrest. “The doctrine that a search without warrant may be lawfully conducted if incident to a lawful arrest has long been recognized as consistent with the Fourth Amendment’s protection against unreasonable searches and seizures.” Ker v. California, 374 US 23, 41. See also Ill Rev Stats 1967, c 38, § 108-1; People v. Hanna, 42 Ill2d 323, 328, 247 NE2d 610, and cases there cited; and People v. Jones, 31 Ill2d 240, 245, 201 NE2d 402. Since we have already recognized the lawfulness of the arrest, and because the record establishes that the search was incident to that arrest, the court erred when it suppressed as evidence the needles which were the fruits of that search.

Accordingly, the order of the trial court sustaining defendant’s motion to suppress the barbiturates and hypodermic needles as evidence under these complaints, is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and LEIGHTON, JJ., concur.

       Ill Rev Stats 1967, c 111½, § 805, specifically authorizes law enforcement officers to seize without warrant a depressant drug whenever such an officer has reasonable grounds to believe that the drug has been the subject of unlawful possession, in violation of the statute.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward M. Johnson and Leroy P. Newell, Defendants-Appellants.
    Gen. Nos. 53,643, 53,644. (Consolidated.)
    First District, Fourth Division.
    March 31, 1970.

      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 appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendants were jointly charged with armed robbery. They were convicted by a jury. After denying post-trial motions, the court sentenced Johnson to serve five to eight years and Newell, three to seven years. Defendants appeal, contending that (1) the trial court abused its discretion when it denied their motion for a new trial and (2), they were not proven guilty beyond a reasonable doubt.

There was testimony that on July 28, 1967 at approximately 12:35 p. m., in the 3000 block of Franklin Boulevard, an east-west street in Chicago, George L. Patten was returning to his place of work from lunch. As he approached a two-story building, he saw three Negro men sitting on its concrete stairs. One man, according to Patten, was the defendant Newell. He had chin whiskers, was about 6' 1" in height with a black bandana on his head, wore a blue denim jacket and dark trousers. Another, was the defendant Johnson, who was about 5' in height and wore a blue sport coat and dark trousers. In his testimony, Patten described Johnson’s eyes which he said “[w]ere sleepy looking, kinda droopy.” The third man “[w] as more stocky . . . .” about 5' 9" in height and wore a black shirt with polka dots.

July 28th was a clear day. When Patten reached where the men were, they stopped him. The one he later identified as Newell took a knife, put it on Patten’s stomach and told him that if he made a sound his guts would be on the sidewalk. Another, the one identified as Johnson, went through Patten’s pockets and took his wallet which had in it about $8, some identification cards and some pictures. The third man (who was not apprehended) held Patten’s upper right arm while the man he said was Johnson went through his pockets. The three men were in Patten’s presence about ten seconds. After his wallet was taken, they told Patten to keep walking and keep quiet. Patten left, walked about 30 feet, broke into a run, went east and then south on Sacramento Avenue. After he reached his place of employment, Patten called the police, reported the robbery and gave a description of two of the three men.

About 12:30 p. m. the same day, Terrence McCue, a career counselor for the Chicago Committee on Urban Opportunities, was standing on the south parkway of Franklin Boulevard between Whipple and Albany, the 3000 block. He saw three Negro men walking briskly, going west. He observed them for about 45 seconds to a minute. One of the men, according to McCue, was defendant Newell and was about 6' 2". He had a black bandana on his head, wore a blue jean jacket and dark pants. He had a goatee. Another, described by McCue as the defendant Johnson, was about 5' 9" in height and wore a blue sport coat and dark pants. The third, McCue said, was about 5' 10" and wore a black shirt with yellow polka dots. McCue testified that the build of the first two men was slim; the third was “[sjtocky, well-built. . . .” At the time McCue saw the three Negro men, he saw a white man walking east on Franklin, break into a run and turn south on Sacramento. McCue testified that the white man was the complaining witness, George L. Patten.

Several squads of Chicago policemen responded to Patten’s call. Two of them went by where McCue was standing. He flagged one of them, talked with a police officer and entered the car. The party with whom Patten talked when he made the call told him to go out in the street and wait. Instead of doing this, he walked to Sacramento and Franklin and obtained a ride from a civilian who drove him to the squad car in which McCue was riding. He entered it and the car proceeded south on Kedzie. At the intersection of West Walnut Street, Patten saw the three men buying shaved ice from the peddler of an ice cream cart. Patten noticed the man who was wearing the black shirt with polka dots. McCue also saw the three men. According to him, they were dressed “[T]he same way that they had been dressed when I had seen them the first time. ...” A moment after Patten pointed his finger at them, the three men ran through a gangway.

Of the squad cars that responded to Patten’s call, one had in it Officer McGaha and his partner, Officer Desmond Walsh. This car drove north on Kedzie, west in an alley where McGaha saw three Negro men running east. In his testimony McGaha described one of the men as about “5' 11" or 6 feet” in height with a black bandana on his head and wore a blue denim jacket, dark trousers and had a goatee. This man, McGaha said, was the defendant Newell, a man he saw the day before for about 10 minutes and spoke with him. Another, he said, was about 5' 7" in height, wore a blue sport coat, dark trousers and blue shirt. The third, was “ [s] horter than Mr. Newell and a little taller than Mr. Johnson . . . ,” and wore a black polka dot shirt. Walsh chased the stocky man but lost him. McGaha chased the man with the light blue sport coat, dark trousers and caught him. He was the defendant Johnson.

Sergeant Chester Zaprzalka was patrolling the district when Patten’s call was transmitted to him. He drove to Kedzie and West Walnut Street. He testified that a quarter of a city block away, looking west on Walnut, he saw a Negro man walking east on the south side of the street and removing a black bandana from his head. The man was about 6' tall and wore a blue jacket and dark trousers. He had a goatee. Zaprzalka arrested him. It was the defendant Newell. Just then, another squad car drove up. In it were McCue and Patten. Patten ran to where Newell was being held by Zaprzalka and said, “That is the man just held me up.” Newell and Johnson were taken to the police station. Later in the day, Patten’s wallet was found on Franklin Boulevard between Kedzie and Sacramento by a man who worked under McCue’s supervision. There was no money in the wallet.

Defendants did not testify. There was testimony that on July 28, 1967 Johnson left home “[a]bout 12:45 . . . .” Before he left home, he had asked his stepsister to repair one of his jackets, a blue one. Newell left his home “[I]t was about—it had to be about 12:30 . . . .” He had on blue pants and a blue jacket. He was not wearing a goatee. His stepsister, Syntharene Johnson, swore that she had never seen Newell with a goatee. He returned home at “[a]bout 12:45 . . . .” His stepmother, Dorothy Williams, had a dental appointment at 1:00. Newell, she said, left home “[a]round 12:00 or 12:30.” He never had a goatee. He had not returned when she left for her dental appointment. Howard Reeves, an in-take clerk in the Cook County Jail, was called by defendants to introduce into evidence a photograph of Newell taken in jail after his arrest. After hearing the witnesses and considering the evidence, the jury found both defendants guilty of the armed robbery of George L. Patten on July 28,1967.

Defendants moved for a new trial. One of their grounds was a claim of newly discovered evidence. When the motion was heard, defendants supported it with the testimony of Marian Walker, defendant Johnson’s mother. Mrs. Walker testified that on August 15, 1967, she was present at the preliminary hearing of the charges concerning her son. She talked with Patten and asked him to tell her about the robbery. Patten, according to Mrs. Walker, said that he was walking down Maypole Street on his lunch hour and three boys, one with a knife, held him up and took his money. When asked if he could tell which one had done that, Patten said, according to Mrs. Walker, “ [N]ot off hand.” Defendants submitted Mrs. Walker’s testimony as newly discovered evidence because when the case was heard she was ill and not available as a witness. The trial judge denied the motion. Defendants contend that this ruling was an abuse of judicial discretion.

To warrant a new trial because of newly discovered evidence the new evidence must be of such conclusive character that in another trial it will probably change the result. It must be material to the issue, not merely cumulative; it must have been discovered since the trial and be of such character that it could not have been discovered by exercise of due diligence. People v. Baker, 16 Ill2d 364, 374, 158 NE2d 1; People v. Burlington, 101 Ill App2d 230, 242 NE2d 433. However, evidence which will only serve the purpose of impeachment is not a justification for granting a new trial on the grounds of newly discovered evidence. People v. Johnson, 286 Ill 108, 121 NE 246; People v. Petrilli, 344 Ill 416, 176 NE 437. Even if Mrs. Walker’s testimony were considered as having met the other tests of newly discovered evidence (which we think it did not), it would only tend to impeach Patten; it would not be substantive evidence. 98 CJS, Witnesses, § 537. Under these circumstances, denial of defendants’ motion for new trial was not an abuse of judicial discretion.

Defendants contend that the evidence did not prove them guilty beyond a reasonable doubt. They rely on what they describe as inconsistencies in Patten’s testimony concerning the place of the robbery about which he complained. Defendants point to a report of proceedings of Patten’s testimony at the preliminary hearing. It appears that the Assistant State’s Attorney asked Patten whether “[Y]ou had an occasion to be at or near 3200 West Walnut Street?” Patten answered, “Yes.” Patten then testified about the robbery. He was not asked, nor did he say, how near 3200 West Walnut was the robbery. The record also contains Patten’s testimony before the Grand Jury. The Assistant State’s Attorney there asked Patten, “[W]ere you in the vicinity of 3200 West Walnut?” Patten answered, “Yes.” Defendants argue that Patten’s answers on these two occasions are inconsistent with his testimony at trial that the robbery occurred in the 3000 block of Franklin Boulevard, a distance some five blocks from 3200 West Walnut. When Patten was cross-examined, he was not asked about his prior testimonies.

It is an elementary rule of evidence, rooted on concepts of fairness, that before a witness who is not a party can be impeached by a prior inconsistent statement, he should be asked concerning it in order to avoid unfair surprise and give him an opportunity to explain his previous answers. People v. Boulahanis, 394 Ill 255, 263, 68 NE2d 467; People v. Moses, 11 Ill2d 84, 87, 142 NE2d 1. Defendants do not explain why, with the reports of proceedings available at trial, they did not cross-examine Patten about what they now claim were inconsistent statements. Failure of defendants to give Patten the opportunity to explain his previous answers bars them from the contention they now make. We also question the significance of the alleged discrepancies in Patten’s testimony.

Defendants argue that a reasonable doubt of their guilt is raised by the testimony of their alibi witnesses and by these facts: (1) the bandana which Patten said Newell was wearing at the time of the robbery was not produced; (2) the inconsistencies in the identification testimony of Patten and that of McCue; and (3) the finding of Patten’s wallet some distance away from where he said the robbery occurred.

This argument is without merit. The State did not have to produce the bandana in order that the testimony of Patten and that of Zaprzalka concerning it be believed. See People v. Crable, 80 Ill App2d 243, 225 NE2d 76. In a case like the one before us, where a complaining witness describes an assault by three differently dressed men and a witness like McCue testifies to seeing some part of the incident, it would be surprising if some discrepancy does not appear in the description each gives of the phase of the episode he claims to have witnessed. The discrepancies in the testimony of Patten and of McCue to which defendants point were too minor to render these witnesses unworthy of belief. People v. McAfee, 80 Ill App2d 142, 225 NE2d 74. Although discrepancies and inconsistencies tend to weaken the testimony of witnesses, the weight to be given what they say, taking into consideration such discrepancies, is in the first instance a question for the jury. In the absence of such differences as demonstrate a reasonable doubt of defendants’ guilt, this court will not substitute its opinion for that of the jury. The identification of defendants by Patten and McCue was positive and certain. Although defendants introduced evidence of alibi, the jury, as triers of the facts, was not obliged to believe the alibi witnesses. People v. Setzke, 22 Ill2d 582, 586, 177 NE2d 168. Where identification is positive, by credible witnesses, as in the case at bar, a verdict of guilty will be sustained notwithstanding there may be otherwise uncontradicted alibi evidence. People v. Wheeler, 5 Ill2d 474, 483, 126 NE2d 228; People v. Habdas, 94 Ill App2d 330, 338, 236 NE2d 731. Our careful review of the record impels us to conclude that the evidence on which the jury rested its verdict proved defendants guilty beyond a reasonable doubt. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry E. Neri, Defendant-Appellant.
    Gen. No. 53,290.
    First District, Fourth Division.
    March 31, 1970.
    Maurice J. Walsh and Carl M. Walsh, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is a quo warranta action brought in the name of the People of the State of Illinois by the State’s Attorney of Cook County questioning defendant’s right to hold office as Mayor of the City of Northlake. The sole ground alleged for defendant’s disqualification was his conviction in the United State District Court of conspiracy to obstruct commerce by extortion. The Circuit Court, after hearing evidence and arguments of counsel, entered a judgment of ouster.

On appeal, defendant has raised .three points in his brief, but, by motion, has invited our attention to one of these as justifying a reversal by this court without proceeding further with the appeal. That proposition is that the judgment of the Circuit Court can no longer stand, since the District Court conviction has been remanded by the Court of Appeals for a new trial. United States v. Palermo, 410 F2d 468.

The State’s Attorney has supplied no answer to this contention, and, indeed, we believe that it is unanswerable.

Accordingly, the judgment of the Circuit Court is reversed.

Reversed.

DRUCKER and LEIGHTON, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leroy Bivens, Defendant-Appellant.
    Gen. No. 53,834.
    First District, Third Division.
    April 2, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci, James N. Gramenos, 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, Robert Kelty, and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel) , for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Leroy Bivens, was charged with the crime of burglary. After a bench trial, he was found guilty of that crime and sentenced for a term of four to twelve years. He appeals, contending that the court erred in accepting his jury waiver and that he was not proved guilty of burglary beyond a reasonable doubt. The facts are as follows.

A radio and television sales and service store owned by Gustav Hahn and located at 1247 Chicago Road, Chicago Heights, was burglarized on September 6, 1967, at about 1:40 a. m. The store alarm was activated at Hahn's home, and he immediately notified the police. One of the windows in the store was broken; two television sets, two tape recorders and a small radio were missing.

Albert Ondreka, an officer of the Skyline Merchant Patrol, employed by town merchants to watch their stores, was armed and on duty in a patrol car at the time. When he was advised that the burglar alarm at the Hahn Store was ringing, he proceeded towards the store and observed a man running and carrying two television sets. He placed the man, named McGee and not involved in this appeal, under arrest and turned him over to Officer Nowicki of the Chicago Heights Police Department. Ondreka resumed his patrol, and about ten minutes later drove to an alley behind the Deccio Concrete Company, the rear of which abutted on railroad tracks. This was about five blocks from the Hahn store. He testified that as he emerged from his patrol car and approached the embankment, he heard two voices discussing how a certain button and plug were used. Holding his flashlight and gun, he climbed up to within a few feet of two men sitting on the tracks and informed them that they were under arrest. Ondreka testified that one of the men was Arnold Lee and the other was defendant, who was wearing a red jacket. Ondreka observed one of the tape recorders in Lee’s lap and the other one next to defendant. There was no artificial lighting, but a full moon was out. When Ondreka announced that the men were under arrest, defendant ran and Ondreka fired two shots in the air. Officer Richard Stultz of the Chicago Heights Police Department had responded to several calls concerning the burglary. As he patrolled, he heard the two gunshots. As he emerged from the squad car, he testified that he observed a man running from the railroad tracks and hiding behind two concrete molds. Officer Stultz placed the man under arrest, and identified him as defendant. Hahn subsequently identified the recovered property as that stolen from his store.

Arnold Lee, who had been convicted of the burglary, testified for the defense that he and McGee committed the burglary in question, and that defendant had not participated in it.

Defendant testified that he had been at a party in Phoenix, Illinois. He returned to Chicago Heights by bus at 1:30 a. m. As he was walking home from the bus stop, he crossed railroad tracks and heard gunshots. He hid behind some sewer caps, and because he had been drinking that night, passed out. Then several police officers came up and arrested him. He denied committing the burglary. He was acquainted with Lee, but did not know McGee.

An employee of the bus company testified by stipulation that bus company records indicated that their bus left Phoenix, Illinois at 12:45 a. m. and arrived in Chicago Heights at 1:15 a. m., and that their buses were sometimes 10 to 15 minutes behind schedule.

John Garcia, a neighborhood resident, testified for the State in rebuttal that at about 1:50 a. m., he saw two men running down the street past his house; one had a dark jacket and the other one was wearing a red jacket. Garcia called the police to report that he saw two men running and carrying some objects.

Defendant first contends that the court erred in accepting his jury waiver, arguing that he did not knowingly waive his right to a jury trial. Prior to trial the court inquired if it was to be a jury trial, and defense counsel replied that it would be a bench trial. Defendant then signed a jury waiver.

We believe that the holding in The People v. Sailor, 43 Ill2d 256, 253 NE2d 397 (1969), is dispositive of the issue. In that case, the court held that where defendant’s attorney in defendant’s presence and without objection by defendant waived a jury trial, there was no merit in defendant’s contention that she had not knowingly and intelligently waived a jury trial. The court stated at p 260:

“An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.”

Similarly in the instant case, defendant’s attorney, in defendant’s presence, informed the court that this would be a bench trial. Defendant failed to object, and is therefore bound by the action of his counsel.

Defendant next contends that the evidence was not sufficient to prove his guilt beyond a reasonable doubt.

It is fundamental that evidence of recent and unexplained stolen property in the possession of an accused is sufficient to sustain a conviction. The People v. Bennett, 3 Ill2d 357, 121 NE2d 595 (1955). And in The People v. Reynolds, 27 Ill2d 523, 190 NE2d 301 (1963), the Supreme Court, at pp 525-26, stated as follows:

“Evidence of recent, exclusive and unexplained possession of stolen property by an accused, either singly or jointly with others, may, of itself, raise an inference of guilt absent other facts and circumstances which leave ... a reasonable doubt as to guilt.”

The evidence presented by the State was sufficient to show that defendant was in recent, unexplained and exclusive possession of certain of the stolen property. Ondreka testified that he saw defendant and Lee sitting on the railroad tracks; that Lee had a tape recorder on his lap and that defendant had a tape recorder next to him; and that they were discussing something about a plug and a button. The owner of the store identified the recorders as having been taken from his store. Thus defendant was seen sitting next to one of the stolen tape recorders, while his companion had the other stolen tape recorder on his lap, just a short time after the burglary had occurred and only about five blocks from the scene of the crime. Moreover the two men were apparently discussing the operating mechanisms of the recorders. It was not essential for the inference of guilt that defendant actually be holding the tape recorder in his hands. See People v. Reynolds, supra. Under the circumstances of the case, he had such unexplained possession of stolen property as would justify a finding of guilty. The case of People v. Davis, 69 Ill App2d 120, 216 NE2d 490 (1966), cited by defendant, is factually not in point. In that case, the State failed to present any evidence that defendant was in possession of the stolen property, an automobile.

The credibility of the witnesses was a matter for the trial court to determine. Ondreka positively identified defendant as having been on the tracks with Lee, and as the one who fled, despite gunshots, when he attempted to arrest the two men. At that time Ondreka was only a few feet from defendant, and while there was no artificial lighting, he testified that he was using a flashlight and that there was a full moon. Stultz testified that after he heard gunshots, he saw defendant run from the tracks and hide behind concrete molds. He then arrested defendant. Ondreka and Stultz both had adequate opportunities to observe defendant, and their identifications were sufficient for conviction. For the defense, Lee testified that defendant was not involved in the burglary, and defendant testified that he was merely walking through the area at the time in question. It was the duty of the trial court to determine the credibility of the witnesses, and we see no reason to disturb its finding that defendant committed the burglary in question.

Under his heading that he was not proved guilty of burglary beyond a reasonable doubt, defendant also argues that the court erred in refusing to grant him a continuance to subpoena Officer Nowicki as a defense witness. When the State rested, defendant moved that Officer Nowicki’s testimony before the grand jury be stipulated to by the State or that he be granted a continuance to subpoena Nowicki. Both requests were denied, and defendant made an offer of proof that Nowicki had testified before the grand jury that he was told that both men ran from Ondreka, and that Stultz arrested them both. We find that the court did not abuse its discretion in denying defendant’s motion for a continuance. Nowicki was not a material witness in this case. He was not involved in defendant’s arrest, and obviously his testimony as indicated by the offer of proof was hearsay. The State had no duty to call him as a witness, and if defendant wished to assure his presence, he should have arranged for it prior to trial.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerry Landry, Defendant-Appellant.
    Gen. No. 54,038.
    First District, Third Division.
    April 2, 1970.
    Rehearing denied April 23,1970.

      Harold H. Winer, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert Kelty, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Jerry Landry and George Marks were indicted for operating a gambling device and keeping a gambling place. Ill Rev Stats 1967, c 38, § § 28-1 (a) (3), 28-3. Tried jointly in a non jury trial, they were found guilty and fined $300 each. Landry prosecutes this appeal. He contends the State failed to prove beyond all reasonable doubt that he knowingly committed the offenses charged, and that the trial court’s refusal to admit certain testimony into evidence and failure to rule on his motion to suppress evidence constitute reversible error.

Acting on information furnished to him, Officer Voelker, of the Cook County Sheriff’s police, went to the Shady Rest Inn, Rosemont, in the early afternoon of January 18, 1967. Voelker, who was dressed in plain clothes, seated himself at the bar. He remained there for about an hour, ordering a meal and two beers from the bartender, George Marks. While he was eating he saw patrons playing a pinball machine; after he had finished, he went to the machine which was similar to others he had seen as a member of the Sheriff’s vice and gambling unit. An indicator on the machine denoted the number of replays won. After depositing approximately $5 in the machine, the officer scored a “win” which called for eight replays. Based on his prior experience, Voelker testified that a “win” sign means that 10 cents will be paid for every replay. Voelker told Marks he believed he had won. Marks came from behind the bar, walked over to the machine, reached behind it to neutralize the replay control, returned to the bar and gave the officer 80 cents.

Voelker, who spent nearly two and one-half hours at the Inn, testified that while he was there he saw Landry, the licensed owner of the tavern, near the bar, in the kitchen and generally all over the place. However, he did not know whether Landry was in the tavern at the time he received the 80 cents from Marks.

Marks testified that he had been employed for one and a half weeks as a part-time bartender at the Shady Rest Inn. He recalled that on January 18, 1967, Voelker ate and drank at the tavern. Sometime after he finished his lunch and paid his bill, Voelker returned to the bar, said he had been playing the pinball machine and it was not registering. Voelker told Marks he had 80 cents in the machine and was in a hurry to leave. Marks said he was busy at the bar so, rather than fooling around with the machine, he just gave Voelker the 80 cents. After receiving the coins, Voelker left. Marks unplugged the machine and returned to work behind the bar. When Landry, who was not there at the time the money was given to Voelker, returned that afternoon, Marks informed him that the machine was out of order.

Landry testified that he was the owner of the Inn, but had left the premises before 1:00 p. m. on January 18th and had not seen Voelker playing the pinball machine. When informed by Marks that the machine was not working, he called the repair service and it was replaced with another one. Landry said that the machine which was taken from the premises by the police on January 19th was not the one played by Officer Voelker on January 18th. He also testified that the machine was used only for amusement purposes and that he never paid off patrons who played it and, further, that he had instructed his employees not to make payoffs. On the motion of the State, the latter statement was stricken by the court.

When recalled to the stand, Officer Voelker testified that he had marked his initials on the machine while playing it on January 18th. When the machine was brought into court, Voelker identified it and pointed out his initials. The machine was not introduced into evidence. Prior to the trial, both defendants moved to suppress the machine and the coins which Voelker received from Marks. The court denied the motion as to Marks, but reserved its ruling as to Landry. The motion to suppress was made and testimony in the case was heard in September 1967; thereafter, the trial was postponed several times either by order of the court or on motion of the defendant. There was more than a seven-month interval between the time the court reserved its ruling on the motion to suppress and the conclusion of the trial. The court’s attention was never called to the long-pending motion and it was never ruled upon.

Landry urges that two trial errors were committed: the failure to rule on the motion to suppress and the court’s refusal to allow him to testify that he instructed his employees not to use the machine as a gambling device. These alleged errors were not included in the defendant’s written motion for a new trial. When grounds for a new trial are stated in writing, a defendant on review is limited to the errors set out in the post-trial motion and all others are regarded as having been waived. People v. Irwin, 32 Ill2d 441, 207 NE2d 76 (1965); People v. Gratton, 28 Ill2d 450, 192 NE2d 903 (1963); People v. Bridges, 67 Ill App2d 236, 214 NE2d 539 (1966).

The inadvertent failure of the trial court to rule on Landry’s motion does not constitute such a substantial error (Ill Rev Stats 1967, c 110A, par 615(a)) that his own failure to raise this issue in his post-trial motion should be overlooked. The pinball machine was not received in evidence; that Voelker received 80 cents in coins was not in dispute; the exact identification of the coins was not in question. Neither the machine nor the coins were essential to the State’s case and there is no reasonable possibility that the physical presence of either contributed to the defendant’s conviction. Where a court is the trier of the facts a presumption exists that the judge considered only competent evidence and discarded inadmissible evidence in reaching his decision. People v. Robinson, 30 Ill2d 437, 197 NE2d 45 (1964); People v. DeGroot, 108 Ill App2d 1, 247 NE2d 177 (1969). If error was committed by the court’s forgetting to rule on the motion it was harmless error which, beyond a reasonable doubt, did not contribute to the finding of guilty. Chapman v. California, 386 US 18, 17 L Ed 2d 705, 87 S Ct 824 (1967). Further, the court’s exclusion of Landry’s testimony as to his instructions to his employees, while error, was not so substantial as to prejudice his right to a fair trial.

The defendant contends that the State did not prove beyond a reasonable doubt that he knowingly committed the offenses charged in the indictment since no evidence was presented that gambling was so notorious or frequent as to alert him that his premises or his pinball machine were being used for gambling purposes. The testimony of the police officer, if believed, was sufficient to establish that the machine was used as a gambling device. In order to find that the defendant kept a gambling place, it was incumbent upon the State to prove that he knowingly permitted a building under his control to be used for the purposes of gambling. People v. Perry, 34 Ill2d 229, 215 NE2d 229 (1966). The evidence showed that gambling occurred on the premises. Landry was the licensee and owner of the Shady Rest Inn. He was present in the tavern on the day the gambling took place and he was working throughout the establishment. Further, the bartender had been in the defendant’s employ only a week and a half on a part-time basis and thus could not be presumed to have been acting on his own initiative. The fact that the money he gave to the officer came from “behind the bar” implies a fund for this purpose and sponsorship by the tavern. The cumulation of the above facts justified the finding that the defendant operated a gambling device and knowingly permitted his premises to be used for gambling purposes. The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Emil Bratu, Defendant-Appellant.
    Gen. No. 54,125.
    First District, Third Division.
    April 2, 1970.

      George B. Collins and Jeffrey Schulman, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Springfield (James B. Zagel, Assistant Attorney General, Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Emil Bratu, was indicted with William Trigg for having sold a purported narcotic drug when, in fact, the substance sold was not narcotic. They were found guilty by a jury and sentenced to the penitentiary for not less than seven and not more than ten years. Trigg’s conviction was affirmed in People v. Trigg, 97 Ill App2d 261, 240 NE2d 130 (1968).

In this appeal Bratu raises the following points; (1) no proof was adduced that he knew the substance was nonnarcotic; (2) evidence admitted as to his prior sales of narcotics deprived him of a fair trial, and (3) the penalty provisions of the Narcotics Control Act (Ill Rev Stats 1967, c 38, Art 22) are unconstitutional.

The facts are fully set out in People v. Trigg, supra, and will not be detailed here. Briefly, Bratu, after having made one or two sales of heroin to Stephen Hnatt, a State narcotics inspector, agreed to sell him a large quantity— 500 grams. During their negotiations Bratu spoke of his supplier. Trigg fitted Bratu’s description and they were seen together prior to the sale. On the day of the sale Hnatt gave Bratu $5,750 in marked bills and drove him to the motel, where he was to meet his supplier. Soon after Hnatt parked his auto, Trigg came out of the motel and entered his own car. Bratu walked over to Trigg’s car and got in. After a few minutes he emerged with a package and Trigg drove away. Bratu returned to Hnatt’s auto and gave him the package. Bratu was arrested, as was Trigg who had been pursued by inspectors deployed at the scene. $2,050 of the marked money was found on Bratu, $3,700 on Trigg.

The contents of the package turned out to be nonnarcotic and the two men were indicted under the statute which provides a penalty of one to ten years for anyone who, after agreeing to sell narcotic drugs, sells a nonnarcotic substance. Ill Rev Stats 1967, c 38, par 22-40.

Bratu’s first point concerns his knowledge of the substance sold Hnatt. He argues that although Trigg may have known it was not heroin, the evidence did not prove that he knew it was not. One count of the indictment charged the defendants with selling a nonnarcotic substance after offering to sell a narcotic drug. The second count charged that they sold a purported narcotic drug knowing that the substance was not narcotic. Under the first count, as well as under the second, it was the burden of the State to prove that they knew the substance was nonnarcotic. The mental state requisite to guilt under this count was knowledge that a nonnarcotic substance was being sold. Ill Rev Stats 1967, c 38, par 4-3, par 4-5.

The proof of Bratu’s knowledge can be determined from the facts and circumstances in evidence. During his dealings with Hnatt he referred to his “supplier.” His use of the term implied an established relationship between him and the person from whom he obtained narcotics. This person was Trigg. It was a reasonable inference from the evidence that their association when dealing in narcotics was close and constant. They were together at different times before the sale to Hnatt; they were together at the time of the sale and they divided the money from the illegal sale. Soon after his arrest, Trigg said all that the inspectors received in the package was “a big fat turkey, just wait until they put the acid to it and you’ll see.” He explained that he suspected something was wrong and that he was “running” the substance through to see what would happen. Bratu and Trigg were partners in the sale and participated in the same course of conduct; it was reasonable for the jury to conclude that they shared the same knowledge and participated in a common design.

A reviewing court will not disturb a jury’s verdict unless it is based on clearly unsatisfactory evidence which causes a reasonable doubt of the defendant’s guilt. People v. Uselding, 107 Ill App2d 305, 247 NE2d 35 (1969). The evidence was sufficient to establish beyond a reasonable doubt that Bratu convinced Hnatt through prior narcotics sales that he would sell him 500 grams of heroin, and that he then knowingly deceived him by selling instead a substance which was not a narcotic drug.

Bratu next contends that the trial court committed error in admitting Hnatt’s testimony regarding the prior narcotics transactions between them. The evidence showed that on one occasion Bratu sold narcotics to an informer who was accompanying Hnatt and to Hnatt himself, and that on another occasion he sold Hnatt a small quantity of heroin and a bottle of opium. The offense with which Bratu was charged involved an element of deceit; evidence of his earlier narcotic sales supported an inference that those sales were part of a course of conduct designed to induce the belief in Hnatt that what he was later offered for sale was also a narcotic drug. The same point was considered in People v. Steele, 22 Ill2d 142, 174 NE2d 848 (1961), where the court said:

“That evidence [of prior transactions in narcotics] also makes it more likely that on the present occasion the defendant offered to sell narcotics rather than some other substance, and it tends to show that the defendant knew that what he was selling was not a narcotic drug .... The evidence of other transactions was thus independently relevant apart from its tendency to show the bad character of the accused, and so its admission was not improper.”

The evidence of Bratu’s prior transactions with Hnatt was properly admitted to illustrate the defendant’s deceitful course of conduct.

The defendant attacks the constitutionality of the penalty provisions of the Narcotics Control Act. Ill Rev Stats 1967, c 38, Art 22. He contends that the title of this Act, which reads:

“An Act defining and relating to narcotic and other dangerous drugs, to make uniform the law with reference thereto and to repeal certain acts therein named,”

does not inform the reader that any criminal penalty is included within the statute. The question of the constitutionality of this statute was not raised in the trial court. The constitutional claim, therefore, cannot be considered on appeal. People v. Luckey, 42 Ill2d 115, 245 NE2d 769 (1969); People v. Orr, 10 Ill2d 95, 139 NE2d 212 (1956). This was the reason that the Supreme Court, to which this appeal was first addressed, disclaimed jurisdiction.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Reece, Defendant-Appellant.
    Gen. No. 53,505.
    First District, Third Division.
    April 2, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (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 John McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, James Reece, was indicted for the crime of murder. After a bench trial, he was found guilty of involuntary manslaughter and sentenced for a term of two to ten years. On appeal, defendant contends that upon the evidence, a conviction for involuntary manslaughter was improper, and also that he was not proved guilty beyond a reasonable doubt.

On January 27, 1968, defendant and Ronald Watson, the deceased, were tenants living in separate upstairs rooms in a two-story house owned by Jessie Anderson and located at 418 East 45th Place, Chicago. At about 9:00 p. m., the landlord, who earlier had seen the two men arrive home together, heard a shot, went upstairs and asked defendant who was shooting. Defendant replied that he hadn’t hurt deceased, that he had just “glanced him.” Defendant told him not to call the police, but after seeing the deceased lying on the bed in his room, the landlord telephoned the mother of the deceased, who came to the house about five minutes later.

When the mother arrived the landlord directed her to Watson’s room, but there was no answer when she knocked. She knocked again, and a girl answered and let her in the room. The girl didn’t know where deceased was, so the mother started to look around, and found defendant in the closet pulling up his trousers. Defendant told her that this was not her son’s room, and that she should get out. She called the landlord, who verified that this was her son’s room. The mother begged defendant to tell her where her son was; he stated that he didn’t know. As defendant departed, the mother tried to stop him and threatened to call the police. Defendant told her to let him go or he would kill her. The police and mother found the deceased’s body in defendant’s room. The police did not find any weapons on the premises. According to the coroner’s physician, deceased was intoxicated and had been killed by one bullet shot.

Earl Acup, an Illinois State Trooper, stopped defendant on the highway on the following morning for a traffic violation. Defendant told the officer that he was on his way to Springfield, Illinois, to give himself up for murder because he had shot a man. He stated that the man was coming at him with a knife, and he shot to scare him.

Defendant testified that on the evening in question deceased came in and said something about killing defendant. After complaining to the landlord, defendant left the house, for awhile, returned and went upstairs. Deceased again came in and stated that he would kill defendant. Defendant asked him why, stating that he wanted to be his friend. Deceased started at him, and struck at defendant with a knife a few times, but missed him. Defendant also testified that they were about five feet apart when defendant took out his gun and showed it to deceased. When deceased jumped back, defendant testified “I guess I pulled the trigger on him.” Defendant did not aim the gun, but it went off while he also was falling backwards. Defendant told the landlord to call the police, but he called deceased’s mother instead. When she arrived, she started to quarrel with defendant, who closed the door so that she wouldn’t see her son’s body. Defendant departed in his automobile. He later telephoned the Chicago Police and told them what happened, stating that he would surrender in Springfield because he did not wish to be beat up by the Chicago Police. He was subsequently stopped and arrested by an Illinois State Policeman.

Defendant first contends that upon the evidence, a conviction for involuntary manslaughter was improper. The Criminal Code, Ill Rev Stats 1967, c 38, § 9-3 (a) provides as follows:

“A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”

It is undisputed that an element of this offense is the reckless commission of an act likely to cause death. People v. Bolden, 103 Ill App2d 377, 243 NE2d 687 (1968).

Under his first contention, defendant argues that self-defense presupposes the intentional use of force in defense of one’s person. Consequently he maintains that a conviction for involuntary manslaughter, involving reckless conduct, cannot stand where defendant pleads self-defense, citing People v. Johnson, 54 Ill App2d 27, 203 NE2d 283 (1964). In that case, the court held that it was not error to refuse an instruction covering the elements of involuntary manslaughter in a case in which defendant maintained that he acted in self-defense.

In making this argument in the instant case, defendant overlooks the fact there was ample evidence to support the finding that in killing the deceased, defendant acted recklessly rather than in self-defense. Although defendant testified that he acted in self-defense when attacked by the deceased, he also testified that he drew the gun merely to scare deceased, that he was not pointing the gun at deceased, but that he pulled the trigger as both men were falling back. Moreover defendant when arrested told the police officer that he had fired the gun to scare the deceased. It should also be noted that the police did not find a knife on deceased’s person or on the premises. The trial court was entitled to consider all of the evidence, and was not compelled to believe defendant’s testimony that he acted in self-defense. Clearly, there was sufficient evidence adduced to reveal reckless conduct on the part of defendant. We find that under the evidence, a conviction for involuntary manslaughter was proper.

Defendant next contends that he was not proved guilty of involuntary manslaughter beyond a reasonable doubt. Defendant concedes that the credibility of the witnesses is for the trier of fact to determine, but argues that the evidence presented by the State as a matter of law was not sufficient to overcome defendant’s evidence of self-defense. We do not agree.

While the State’s evidence was circumstantial, it was ample to prove defendant’s guilt. The police found no knife, and defendant’s argument that there were many people at the scene who may have removed the knife prior to the arrival of the police is not supported by the record. The trial judge was justified in finding that the deceased was unarmed. Defendant also acted in a manner not consistent with the conduct of a person who had been defending his person, in that he not only left the scene of the crime but also departed from the city. Nor was the trier of fact required to believe defendant’s testimony that he left Chicago in order to surrender to the Springfield authorities rather than to the Chicago Police. Additionally, there was evidence adduced that defendant had moved deceased’s body after the shooting. The landlord testified that he saw the body in deceased’s room while it is undisputed that the police and deceased’s mother found the body in defendant’s room. And finally as we have noted, defendant’s own testimony as to the manner in which the shooting occurred, along with his out-of-court statement, supported a finding that his conduct was reckless. Based upon all the evidence, we find that defendant was proved guilty of involuntary manslaughter beyond a reasonable doubt. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mildred White, Defendant-Appellant.
    Gen. No. 69-47.
    Fifth District.
    April 6, 1970.

      John J. Hoban, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (John M. Karns, Jr., Assistant State’s Attorney, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from a conviction of murder entered upon a jury verdict of guilty on February 7, 1968. The defendant, Mildred White, was found guilty of shooting Rudy Teer on the morning of April 2, 1967, his death occurring as a result of said wounds on April 11, 1967.

The defendant was 49 years old on the date of the alleged shooting. She had worked as an elementary school teacher for 28 years, and testified that she and decedent had been married at the home of a minister in Florida in June of 1943 where decedent was stationed in the military service. Upon inquiry after his death, the State of Florida advised they had no record of the marriage. After that, she continued to use her maiden name since they were separated intermittently by his reenlistments and attending Howard University. They had an insurance policy in which they were both named Teer. In 1960, decedent returned to East St. Louis taking up his residence with her in her home. He was after that time never employed, she bought the groceries, did the laundry, paid the bills and kept house, in addition to teaching.

His activities are shown to have been drinking, coupled with violence which led to numerous visits by the police.

There were no eyewitnesses to the alleged shooting. Defendant denied that she had shot the decedent.

On May 17, 1967, after the arraignment, defendant’s counsel served a motion on the assistant state’s attorney requesting that she be furnished with a list of prosecution witnesses. The State by reply filed on May 19 provided the names and addresses of seven witnesses, four of whom had been listed on the back of the indictment. In the trial, after four jurors had been accepted, the defendant’s counsel was handed a second list of 24 witnesses and addresses, including the seven furnished previously. Defendant’s counsel promptly objected to any of the additional witnesses being called to testify and at the same time requested the court to order the State to make the witnesses available for inquiry. The State opposed the motion on the theory that no demand had been made for a list of witnesses, despite the fact that the State’s reply which was filed and furnished the names of the seven witnesses recited that it was “in reply to motion for a list of witnesses.” The State makes the same contention here and points out that the original motion was not in the court files. (A copy of such motion with the reply was attached to the post-trial motion and is in the record.)

Among the witnesses called by the State was a nurse at the hospital to which decedent was taken, whose name appeared only on the list presented during the selection of the jury, but whose name was not on the list given in the State’s reply. She testified that decedent, while in shock according to the testimony of the doctor, upon defendant explaining to her that decedent had been shot somewhere and crawled up on the porch, said “no, she shot me” indicating defendant. The State had previously, in response to a motion to produce pursuant to chapter 38, section 114-10, Ill Rev Stats, advised in writing that defendant had “made an oral statement regarding her participation in the crime” to a witness, David Griffin, who was present at the home before decedent was taken to the hospital and did not know anything about the occurrence after decedent was taken to the hospital.

Under such circumstances there was an ample showing of both surprise and prejudice. We consider counsel’s remarks in promptly making the objection to the additional witnesses as an adequate request for an opportunity to talk to the witnesses. In view of their number he could not be expected to do so during court recesses and was entitled to a continuance for that purpose, particularly when the State had failed to adequately respond with reference to oral statements alleged to have been made by defendant.

The statute (section 114-9, Code of Criminal Procedure) provides in part:

“(a) On motion of the defendant the court shall order the State to furnish the defense with a list of prosecution witnesses and their last known addresses.
“(b) The court may permit witnesses not named in the original or amended list to testify when the names of the additional witnesses were not known and could not have been obtained by the exercise of due diligence prior to trial.
“(c)

The State does not contend the witnesses were not known nor could not have been obtained by the exercise of due diligence prior to trial. It contends that since defendant’s motion for a list of witnesses was not filed with the court, although the reply was, that the court had discretion to allow the unlisted witnesses to testify, and refers to the numerous authorities holding that in the absence of demand, a defendant cannot complain if unlisted witnesses are permitted to testify. See People v. Williams, 86 Ill App2d 209, 229, 229 NE2d 158. Here we consider that strict compliance with the requirement to file a motion pursuant to section 114-9 was waived by the State, and that under the circumstances here present, defendant was so prejudiced as to be entitled to a new trial. One of the purposes of the section 114-9 is to prevent surprise, and while similar language has been held to be directory and not mandatory and that an accused must make a demand and be refused before he can assign error, People v. Carter, 398 Ill 336, 75 NE2d 861, that a demand was made and complied with is evident from the record.

While there are assignments of other errors of a serious nature, we do not consider it necessary that they be here considered since they are not of such nature as to be apt to recur on retrial.'

Judgment reversed and cause remanded for a new trial.

MORAN and GOLDENHERSH, JJ., concur.


text:
    Traubco Food Equipment Fabricators, Inc., Plaintiff-Appellee, v. United Auto Workers, Local 588, Rank & File Union Center, AFL-CIO, Defendant-Appellant, and The Rom Company, Defendant.
    Gen. No. 52,093. (Abstract of Decision.)
    First District, First Division.
    April 6, 1970.

      Harold A. Katz and Irving Friedman, of Chicago (Katz & Friedman, of counsel), for appellant; Gerard A. Serritella, of Chicago, for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Scott, Defendant-Appellant.
    Gen. No. 52,158.
    First District, First Division.
    April 6, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James E. Thompson, Northwestern University School of Law, Evanston, Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Francis X. Riley, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was charged with murder, tried by the court without a jury and was found guilty of voluntary manslaughter. The trial court sentenced him to the penitentiary for three to eight years. Defendant seeks to reverse his conviction based upon the contention that there was insufficient evidence to support his conviction for voluntary manslaughter. He argues that the evidence could only result in one of two conclusions: either he was guilty of murder or he acted in self-defense to commit a justifiable homicide. The State contends in the' alternative that there was ample evidence of provocation or that the defendant acted unreasonably in utilizing his right to self-defense.

The Criminal Code defines the crime of voluntary manslaughter as follows:

“(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
“ (1) The individual killed, or
“(2) Another whom the offender endeavors to kill, but he negligently or accidently causes the death of the individual killed.
“Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill Rev Stats, c 38, § 9-2.)

With this statutory context in mind, we will analyze the evidence in the instant case.

The State called Martha Scott, who had been married to defendant for some 20 years. She stated that as of July 16, 1966, she had been legally separated from the defendant for a year and one-half and that she and her children had been living with Olden Oatis since September of 1965. On July 16, 1966, Oatis picked up Mrs. Scott at 3:30 p. m., from her job at Wesley Memorial Hospital. He drove to the area of 63rd and Eggleston streets where Oatis parked his car about three car lengths from 63rd and on Eggleston. The witness saw defendant standing on the corner of 63rd and Eggleston and was calling to their son Kevin Scott. She stated that Kevin was on Eggleston and she also called to him from Oatis’ car. She then related that her husband looked in the direction where Oatis and she were sitting in the car; that the defendant reached into his pocket and opened a knife, and that defendant walked towards the car. Oatis then pulled a knife and got out of the car. The witness was not sure whether Oatis had opened his knife. She then left the car and started towards 63rd Street. She observed Oatis and the defendant come together and saw the defendant strike Oatis with his knife upon the upper portion of Oatis’ body. Oatis fell to the ground and the defendant was over his body. The witness said that the defendant administered some jabbing blows with his right hand to Oatis while on the ground.

On cross-examination, the witness said that on July 15, 1966, she had told a friend of the defendant that if her husband didn’t send some money for her children that she would have him arrested. She also stated that her husband saw two of her children somewhat infrequently, with the children going out to see their father. She never let the defendant into her apartment according to her testimony.

Gregory Scott, the nine-year-old son of the defendant was called by the State. After this child’s competence was established, he was questioned concerning the date of the homicide. Gregory said that he saw his father at 10:00 a. m. that morning. Defendant asked for Mrs. Scott and Gregory told him she was at work. Gregory then found his little brother Kevin at the defendant’s request. Defendant gave both of them a dollar and said he was going to take them some place. Gregory related that he and his brother went to their apartment, changed clothes and went back down to the street. They could not find their father. The boys then changed clothes and went to play. Gregory next met his father at 2:30 p. m., when his father asked him to steal the apartment keys because that night he was going to kill his mother and Oatis. Gregory then left and returned to his apartment. Defense counsel elicited from Gregory that his father visited him about every two weeks. He stated that defendant gave him some money on these occasions. According to Gregory, two of his father’s visits were in the apartment of Mrs. Scott, where Oatis also lived. Gregory also stated that his father was living in a hotel about a block from this apartment.

The State next called Kevin Scott, the seven-year-old son of the defendant. Following the establishment of his competency to testify, he testified as to the events of July 16, 1966. He corroborated his brother’s story of their encounter with the defendant in the morning. He then testified to his observation of the fight between Oatis and the defendant. The witness said that he saw his father at the cleaners; that the witness was walking with a friend toward that corner; and that his father and Oatis both called to him, the latter from a car where he saw his mother. Kevin said his father asked him who he was talking to. His father then walked toward the car. The boy witnessed the stabbing and saw both men draw their knives. He said his father was the first to pull out a knife. While standing near the scene, he saw his father cut Oatis, then cut him again after Oatis had fallen to the ground. According to Kevin, his father then ran and was apprehended.

The witness was not sure as to when he first saw his father on the day in question. Kevin also testified as to the visits made by his father on previous occasions and that his father sometimes gave him money. According to this witness, Oatis got out of his car and then pulled a knife which he opened. It was established that Kevin was on the same side of the street where the fight took place.

Police Officer Gaynor testified as to the events of July 16, 1966, when he arrived at 63rd and Eggleston at 4:30 p. m. Oatis was found in a pool of blood with a knife lying alongside his body. The Officer picked up that knife and found another knife in the street near 63rd and Eggleston. Both knives were open. The Officer identified these knives at the trial, which had been previously identified by Mrs. Scott as the instruments belonging to the defendant and Oatis.

Evidence of bloodstains upon the blade of the knife, purported to be the defendant’s, was introduced by stipulation. Further stipulation was entered into with regard to the autopsy conducted on Oatis’ body. The medical ex-animation revealed a number of slash wounds upon the neck, upper left chest and abdomen. The pathologist’s opinion was that Oatis’ death was caused by a laceration of the heart. The knives were then admitted into evidence.

The defense produced Susan Johnson, who was defendant’s landlady for about five months. The witness said she was acquainted with Mrs. Scott, having seen her twice. She stated that Mrs. Scott had called her on July 18, 1966. Mrs. Scott was recalled and defense counsel inquired about the conversation with Mrs. Johnson. Mrs. Scott denied she had told Mrs. Johnson that deceased had his knife open in the car or that Mrs. Scott told the deceased to put away his knife. Mrs. Johnson then testified that in her phone conversation of July 18,

Mrs. Scott stated that Oatis had pulled out his knife before leaving the car and that she then ran from the car.

The defendant then testified as to the occurrence of July 16. He stated that he saw his sons that morning around 10:30 or 11:00 a. m., and that he gave them some money and told them he had planned to take them to an amusement park. Defendant then proceeded to the area of 63rd and Halsted where he went into a tavern. He stated that he remained there until 3:45 p. m., tending bar for a friend. Defendant denied that he had anything to drink while at this bar. Defendant returned to 63rd and Eggleston and rang the bell to his wife’s apartment. He wanted to talk to her because a friend told him to contact her. Defendant denied that he saw Gregory at that time or that he told his son he was going to kill Oatis and Mrs. Scott.

Defendant then proceeded south on Eggleston from 63rd Street. According to his version of the story, he heard his wife laugh, turned back to the right and then turned back. At this point, defendant said he was confronted by Oatis, who had a knife in his hand. Defendant and Oatis then engaged in a fight with Oatis pressing the defendant against a car. During this struggle, defendant managed to get hold of Oatis and reached into his pocket for his own knife. Defendant then stated he opened his knife with one hand by drawing it against his leg. He then swung at the deceased and cut him. He did not recall how many times he struck the deceased. Defendant claimed he saw no one else in the vicinity and didn’t know what was happening. After the fight he threw away his knife and proceeded to a barber shop where he was arrested after he allegedly called the police.

On cross-examination, the defendant testified that he had only met Oatis on one prior occasion and that he did not know that Oatis was living with his wife at the time of the homicide. Defendant maintained that deceased had initiated the attack which resulted in Oatis’ death. Defendant identified his knife and Oatis’ knife. He attempted to illustrate to the court how he opened the knife with one hand. Defendant denied that he ever struck the deceased while the latter was on the ground.

Based upon this testimony, the trial court found the defendant guilty of voluntary manslaughter. The trial court expressed the reasons for the finding stating that the evidence showed that when deceased left his car his knife was out and open and that the defendant’s testimony as to the opening of his knife with one hand was disbelieved. We think the trial judge’s comments reveal that the conviction of defendant for voluntary manslaughter was based upon the finding that defendant acted with an unreasonable belief that the homicide was justified under the circumstances.

Defendant contends that the evidence established either murder or justifiable homicide by reason of self-defense. We cannot agree with this contention. The evidence clearly established that both men drew their knives prior to the fight. The testimony showed that Oatis had brandished his knife before leaving his car and that defendant produced a knife while advancing toward the deceased. There is some disagreement as to which man was the aggressor, but there is ample testimony that after deceased fell to the ground, the defendant administered some wounds upon his body. We think this illustrates that defendant acted unreasonably. The amount of force used in defending himself from the deceased was excessive.

The evidence presented in this case left the trial judge with several alternatives. The court could have found defendant guilty of murder, guilty of manslaughter, or not guilty by reason of self-defense. The difference between murder and manslaughter is the absence of malice as an element of the crime in the latter offense. People v. Jones, 384 United Auto Workers 407, 51 NE2d 543 (1943). The trial court disbelieved the testimony of Gregory with regard to the defendant asking his son to steal the apartment keys so that he could kill his wife and Oatis that evening. Thus, there was no proof of malice presented by the State’s evidence. Similarly, the trial court disregarded the defendant’s ^testimony that he opened his knife with one hand while holding off the deceased.

There is a discrepancy in the testimony as to who was the first to draw a knife. However, both eyewitnesses to the homicide stated that defendant struck the deceased with his weapon after deceased had fallen to the ground. Defendant denied this but stated he was not sure as to how many times he struck the deceased.

In our view of the evidence we think there was substantial proof to justify a conviction of voluntary manslaughter. Our review of the record has not revealed that grave and substantial doubt that is necessary for the reversal of the conviction. People v. Sheppard, 402 United Auto Workers 347, 83 NE2d 587 (1949). The judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.