author: MR. JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vincent Colletti and Smile Guajardo, Defendants-Appellees.
    Gen. No. 68-26.
    Second District.
    November 8, 1968.
    Rehearing denied December 10, 1968.

      Julius Lucius Echeles and Jo Anne F. Wolfson, of Chicago, for appellants.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendants were convicted on both counts of an indictment charging them with the robbery of Nora Birdsong, and with the crime of burglary, in that they entered her home with intent to commit a felony. The case was tried to a jury. Colletti was sentenced to a term of 6 to 15 years, and Guajardo to a term of 9 to 18 years. The appeal was transferred here by our Supreme Court on the ground that no substantial constitutional question is involved.

Upon appeal, the defendant Colletti only contends that the court erred in refusing him a severance, and we will discuss the evidence to the extent necessary to dispose of that point.

Mrs. Nora Birdsong, who resided alone in Woodridge, was employed as a waitress and, on the night of May 24, 1966, earned about $27 in tips. When she returned home that night, she placed this money on her kitchen table. According to her testimony, it consisted of about $6 or $8 in quarters, a few nickels and dimes, and the rest was in bills.

She awoke at about 9:00 a. m. the next morning and started to make a pot of coffee. She heard her rear doorbell ring, and then a man entered the rear door, brandishing a pistol. The man tied her up and took her to the bedroom, where he pushed her onto the bed and told her to keep quiet. After that, she heard noises all over the house, like the sound of drawers slamming, and she also heard mumbling. She was unable to tell how many voices there were. She began to moan, and she heard a voice say, “Go in there and shut her up . . . ,” whereupon a man appeared at the bedroom door. This was not the same man she had seen earlier.

When she was alone again, Mrs. Birdsong managed to free her hands and called the telephone operator and reported that a robbery was in progress. The operator then relayed the information to the police, and two squad cars arrived on the scene within a few minutes. One car was driven by Joel Kagann, the Chief of Police of Woodridge and the other was driven by Officer George Zima of the Woodridge Police Department. Chief Kagann entered the front door of the house, while Officer Zima went around to the rear. Kagann found clothing and other items strewn about the floor of the house, and observed the defendant Guajardo standing near the television set with something in his hand. Guajardo dropped what he had in his hand and started moving toward the television set. There was a gun on top of the television set. Kagann said, “Freeze, Police Officer,” whereupon Guajardo stood still. As Chief Kagann entered the house he heard Officer Zima yell, “Hold it, Police Officer.” Zima later appeared with the defendant Colletti in custody. Zima testified that, when he rounded the house, he saw the defendant Colletti running from the direction of the back door. When Colletti was searched, the pocket of his sweater was found to contain $27.60, consisting of $6.25 in quarters, a few nickels and dimes, and the remainder in bills. He also had $120 in his wallet and $4.50 in his right pants pocket.

Mrs. Birdsong was unable to identify either of the defendants. Mrs. Irene Erickson, who lived about a block away from the Birdsong house, testified that, at the time the two police cars pulled up to the house, she saw a man running out the back door of the Birdsong house. She said that she had this man in sight until he was apprehended by the policeman who went around to the back of the house. Her testimony was corroborated by Mrs. Elizabeth Dickson, who was visiting Mrs. Erickson at the time. The only important difference in their testimony is that Mrs. Dickson said the man was blocked from their sight for a few moments between the time he came out the back door and the time he was apprehended by the police officer.

Neither of the defendants testified.

With this factual background, we come to the first assignment of error, which is the defendant Colletti’s contention that his pretrial motion for severance should have been granted. The motion was made at the time the case was called for trial, at which time counsel for Colletti informed the court that the defendant Guajardo had made “exculpatory statements” to the police at the time of his arrest, which statements would not be admissible against Colletti, and that therefore a severance should be granted. The court denied the motion.

At the trial, it was not the State which introduced the evidence of Guajardo’s statement. Eather, it was counsel for Guajardo who, on cross-examination of Chief Kagann, elicited, over the objection of Colletti, the information that, after his arrest, when asked what he had been doing in the Birdsong home, Guajardo stated that he had been walking along the street and saw a man run out of the back door of the house, whereupon he “went into the house to see what was wrong.”

Colletti correctly points out that this evidence was improperly admitted. The statements made by a party are frequently admitted in evidence when offered by his opponent, because the hearsay rule does not apply in that instance. However, the hearsay rule does preclude a party from proving his own self-serving statements. It is not claimed that the statement was made as part of the res gestae. Statements made out of court by a party opponent, when offered against him are admissible as an admission; however, when offered in his favor they are not admissions and become grounds for objection under the hearsay rule. (4 Wigmore on Evidence, § 1048, pp 2-4 (3rd ed 1940).) See also People v. Kosearas, 410 Ill 456, 459, 102 NE2d 534 (1951); People v. Jones, 26 Ill2d 300, 305, 186 NE2d 314 (1962). Thus, even if Guajardo had been on trial alone, he would not have been entitled to introduce this testimony.

Here, we would be particularly disposed to reverse the conviction of Colletti if we felt that he had been prejudiced by the hearsay testimony. However, we agree with the State that Colletti was not prejudiced by it. The exculpatory statement of Guajardo did not, in our opinion, incriminate Colletti. If it had, we would reverse Colletti’s conviction — not because his motion for a severance was denied, but because the evidence was improperly admitted over his objection. However, we fail to see how Colletti could have been prejudiced by the statement of Guajardo that he had entered the house because he had seen a man running from the rear door, when the uncontradicted evidence indicates that Guajardo was already in the house before Colletti ran out. If the jury had given any weight to the hearsay statement attributed to Guajardo, they might have concluded that there was a third person involved, but we do not see how they could have concluded that Colletti was the person referred to by Guajardo. On this appeal, Colletti does not specify the manner in which he feels he was prejudiced by the hearsay testimony. His only argument on the point is that “by the impermissible testimony of Colletti’s co-defendant, the State’s witnesses were, in a manner, corroborated.” We do not see how Guajardo’s statement does in fact corroborate the State’s witnesses, and, since Colletti has given no other indication as to how he might have been prejudiced by the improper testimony, we hold that its admission did not constitute reversible error.

It is argued that the recent decisions of Bruton v. United States, 352 US 232, 88 S Ct 1620, 1628 (1968) and People v. Miller, 40 Ill2d 154, 158-159, 238 NE2d 407 (1968) should be sole authority for the reversal of Colletti’s conviction. We are of the opinion that both of these cases are distinguishable on their facts from the case at bar. In both the Bruton case and the Miller case the testimony was elicited by the State on examination and directly named the codefendant. In the case at bar, the alleged erroneous testimony was elicited by Guajardo’s counsel and did not name Colletti as the man running from the rear door. As already stated, “a man” referred to by Guajardo in his statement could not be Colletti.

The remaining assignment of error is urged by both defendants. They moved, prior to trial, for the production of transcripts of the witnesses who testified before the Grand Jury which indicted them. The State’s Attorney stated that no court reporter had been present at the Grand Jury proceeding, and that no other kind of recording device had been used, so that there was no record of the testimony given before the Grand Jury. The defendants then requested the court to hold a hearing, at which they would have the opportunity to prove that the State’s Attorney of DuPage County made it a practice not to have court reporters present at Grand Jury proceedings, and that the sole reason for this practice was to deprive defendants of an opportunity to have access to Grand Jury testimony for impeachment purposes. The defendants also moved to dismiss the indictment on the ground that they had been deprived of an opportunity to know what had been said before the Grand Jury. The court denied both motions.

On this appeal, defendants take the position that the policy of the State’s Attorney, which they offered to prove, constitutes a denial of their Constitutional right to due process of law.

The State does not contest the sufficiency of defendants’ offer of proof, so we are not called upon to decide whether the record is sufficient in this regard. In any case, we prefer to pass upon the merits of defendants’ contention, based upon the assumption that there may indeed be a policy of the State’s Attorney to dispense with court reporters before the Grand Jury, and that his purpose in doing so may indeed be to avoid the necessity of producing transcripts of Grand Jury testimony for impeachment purposes at the trial. We also lay to one side the question of whether the pretrial motion was premature, People v. French, 61 Ill App2d 439, 446, 209 NE2d 505 (1965), because the defendants also moved for production of the witnesses’ Grand Jury testimony after the witnesses testified during the trial, and moved for a directed verdict of acquittal based upon the inability of the State to produce it.

The basic question is whether the State has a duty to insure that the testimony of witnesses before the Grand Jury will be recorded for the later use of the defendant. It is clear that no such duty exists. People v. Aughinbaugh, 36 Ill2d 320, 324-325, 223 NE2d 117 (1967). Accordingly, it makes no difference what the motive of the State’s Attorney was in not having the testimony recorded.

The theory advanced by the defendants would create impossible problems of administration, and we think it is worthwhile to point out a few that occur to us. Every time the State called a witness whose Grand Jury testimony had not been recorded, an inquiry would have to be held as to the “motive” of the prosecutor in not having had a reporter present. Then, assuming that the prosecution did have transcripts of the testimony of all witnesses who did appear before the Grand jury, we suppose the next inquiry would be why some witnesses appearing at the trial did not testify before the Grand Jury. Was it because the State did not want their testimony recorded? The field of inquiry suggested by the defendants would go, of course, beyond the matter of Grand Jury testimony. The rule that a defendant is entitled to Grand Jury testimony if it is available (People v. Johnson, 31 Ill2d 602, 606, 203 NE2d 399 (1964)) is, after all, simply an extension of the rule that statements of witnesses in the possession of the prosecution must be turned over to the defendants for impeachment purposes. People v. Moses, 11 Ill2d 84, 89, 142 NE2d 1 (1957); People v. Wolff, 19 Ill2d 318, 327, 167 NE2d 197 (1960). If we were to adopt the position urged by the defendants in connection with Grand Jury testimony, it would necessarily follow that the “motive” of every policeman in failing to take a written statement of a prospective prosecution witness would be a legitimate subject of inquiry when the witness later testified.

We will not pursue this train of thought any further, because it must inevitably lead to a Kafka-like dream in which police departments and prosecutors’ offices become mere clerical centers for the recording and transcription of witnesses’ statements to be turned over to the defense. The Moses-Wolff rule stops somewhere, and it stops considerably short of that.

The judgment of the lower court is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Illinois Building Authority, a Body Corporate and Politic, Plaintiff-Appellee, v. Stanley Dembinsky, Jr., and Frances E. Dembinsky, His Wife, et al., Defendants-Appellants.
    Gen. No. 68-27.
    Second Judicial District.
    November 8, 1968.

      Claude Calloway and Hall, Meyer, Fisher, Holmberg, Snook and May, of Waukegan, for appellants.
    Donald T. Morrison and Austin L. Wyman, of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an eminent domain proceeding brought by the Illinois Building Authority for the acquisition of 15.37 acres of land located in Lake County, between Waukegan and Zion, and near Lake Michigan. The property adjoins the Illinois Beach State Park, and the condemnation was sought to extend that facility.

The matter was tried before a jury, which returned a verdict awarding the defendants the sum of $11,500 as compensation for the land taken. The trial court entered judgment on this verdict and the defendants appealed. They contend that the amount awarded was inadequate, and that the inadequacy was the result of the admission of improper evidence and of prejudicial argument by counsel for the plaintiff.

The property was acquired by the defendants in 1953. It was zoned for agricultural use but, at all times, was used for a sand mining operation as a nonconforming use. The use as a sandpit had been continuous, but its use apparently had been sporadic since approximately 1957. It was estimated that approximately 10 of the 15 acres still remain to be mined. Both parties agree that the highest and best use of the property is for a sand mining operation.

The plaintiff produced two expert witnesses who gave their opinion of the value of the property as being between $7,500 and $8,000 — or between $500 and $530 per acre. No question was raised concerning either their qualifications as experts, or the factors upon which they based their opinions.

These experts and other of the plaintiff’s witnesses offered testimony relative to two sales of land, which testimony was admitted in evidence as being sufficiently similar to the subject property to be relevant for the jury’s consideration in the determination of the value of the defendants’ land. The defendants contend that the trial court committed reversible error by admitting evidence of these sales.

The trial court is permitted wide discretion in determining whether another sale is sufficiently similar in nature to be relevant in determining the value of property which is being condemned. Illinois Bldg. Authority v. Dembinsky, 90 Ill App2d 451, 455, 456, 233 NE2d 38 (1968). To be admissible in evidence, other sales should be sufficiently similar in character and locality to provide the jury some reasonable basis for comparison. No specific rule may be laid down to determine the degree of similarity that must exist for evidence of a sale or sales to be admissible. The determination must be made in each case by the trial court within the proper limits of its discretion upon the particular facts and circumstances presented. There are bound to be dissimilarities between the property sought to be condemned and any other property, but if there is a reasonable basis for comparison, such dissimilarities are to be weighed by the jury and affect the weight and value of the testimony, rather than its competency. Parcels of property may be similar for purposes of fruitful comparison, even though each possesses various points of difference. City of Evanston v. Piotrowicz, 20 Ill2d 512, 522, 170 NE2d 569 (1960); Forest Preserve Dist. of Cook County v. Lehmann Estate, Inc., 388 Ill 416, 428, 429, 58 NE2d 538 (1945); Park Dist. of Highland Park v. Becker, 60 Ill App2d 463, 470, 208 NE2d 621 (1965).

The first sale was that of property known as the Doyle property, located approximately six miles from the subject property. This sale took place in 1965 and consisted of 18 to 19 acres. At the time of this sale the land was vacant, except for a shed. It had been used for a sand mining operation and was about one-half depleted, or mined; and had a possibility for such use in the future. It adjoined a railroad track and access to it was by means of a long lane. The property sold for $500 an acre.

The date of condemnation of the subject property was August 16, 1965. The Doyle sale took place in 1965. Both tracts of land had been used for sand mining and were only partially depleted; each had means of access through a lane over other property; each adjoined a railroad track; they were within three or four acres of being the same size; and both were zoned for agricultural use. The defendants objected to the sale on the grounds that the Doyle property was an “abandoned” sandpit and that no soil borings had been taken to indicate the depth of the sand. However, the testimony indicated that the Doyle property had the potential for future use for sand mining. Also, an issue was made of the degree of use that had been made of the subject property for sand mining purposes since the year 1957.

In the light of this testimony, we do not believe that the trial court abused its discretion in permitting evidence of this sale. It appears sufficiently similar in general to be relevant, and the differences to which the defendants have referred are matters affecting the degree of comparability and the weight which the jury should give to the evidence of the sale.

The defendants objected strenuously to the evidence of the sale of a tract of land referred to as the Fuller tract. This sale took place in October of 1964 and was of approximately 40 acres of land which, at the time, was being used for agricultural purposes. The sale price was $750 per acre and this land was also approximately six miles from the property in question. The purchaser converted the use of the land to a sand and gravel operation.

No objection was made to the evidence of this sale at the time it was offered and admitted. This alone is sufficient to answer the defendants’ contention of error in this court. People v. Sinclair, 27 Ill2d 505, 508, 190 NE2d 298 (1963); Forest Preserve Dist. of Cook County v. Lehmann Estate, Inc., supra, 429, 430.

The defendants now suggest that they made no objection to the evidence of this sale because at the time the evidence was admitted they believed it to be evidence of the sale of mere farmland and thus not prejudicial to them. This ignores the fact that prior to the time that proof of the sale was offered in evidence, the plaintiff had elicited testimony and presented evidence that the land was presently being used as a sand and gravel pit; and that prior to trial, the plaintiff had furnished the defendants with detailed information regarding this sale, as well as others, which it intended to use at the trial.

Under these circumstances, the defendants’ suggestion that the plaintiff sought to introduce evidence of the sale of the Fuller tract on the basis that it was the sale of farmland, which in fact was not similar to the subject property, or that the trial court admitted it into evidence on this basis, severely taxes our credulity.

The defendants contend, further, that the trial court erred in permitting Mr. Fuller — after the evidence of the sale was admitted — to testify that at the time of the sale of the land, he was aware that there was sand and gravel on the property. Mr. Fuller testified, over objection of the defendants, that he had previously sold some adjoining land to Commonwealth Edison Company, and that the company had taken some soil samplings at the time, which indicated the sand and gravel content of the land. He also testified that he knew of these tests and was aware of them at the time of the subsequent sale. The evidence was offered to exhibit the state of Mr. Fuller’s mind with reference to what he believed the land to be useful for at the time of the latter sale and not to show the results of the tests made by Commonwealth Edison Company. The jury was so advised. This testimony, so limited, was not objectionable as hearsay. Cleary, Handbook of Illinois Evidence, 2nd Ed, §§ 17.1 and 17.4.

This testimony was relevant in establishing that Fuller was aware of the potential of his land for use in a sand and gravel operation, at the time he made the sale. This factor was significant in that the property was not at the time being used as a sand or gravel pit, and the sand or gravel was not apparent on the property. If Fuller, the seller, were completely unaware of the potential of the land, then the price at which he would be willing to sell might be considerably altered. Since this sale of apparent farmland was offered as evidence of the value of property useful as a sand and gravel pit, the then knowledge of the seller, Fuller, of the capabilities of his land for this use was pertinent. The purpose of this testimony was to establish the state of Fuller’s mind at the time of the sale. It was original evidence; Fuller was available for cross-examination on this issue, and his testimony was not hearsay.

The defendants further contend that because this court in Illinois Bldg. Authority v. Dembinsky, supra, upheld the action of the trial court in refusing to admit evidence of this same sale — the Fuller tract — the trial court should be reversed in this case for admitting evidence of this sale. The properties which were the subject of condemnation in the two lawsuits were not the same, and we did not hold in the first Dembinsky case that the sale was not sufficiently similar to the property there under consideration to be admissible. We there held that under the evidence set forth in the record, the trial court did not abuse its discretion in denying admission of the sale, and we observed that there was no evidence that the Fuller sale was in any manner predicated upon the presence of mineral deposits.

The evidence in the instant case apparently suggested to the trial court that the Fuller sale was predicated on the similarities which existed between the two parcels even though the similarity would not have been readily apparent from a view of the Fuller land at the time of its sale. We repeat: there was no abuse of discretion by the trial court in admitting the evidence of the Fuller sale in this case.

The consideration received in connection with another sale was mentioned by a witness, but evidence of the sale was ultimately held not to be admissible. We have examined the record and are satisfied that the price was inadvertently mentioned by the witness. The jury was instructed to disregard his statement and was given a cautionary instruction in this respect. We are satisfied that the defendants were in no manner prejudiced by this incident.

The defendants also contend that counsel for the plaintiff made prejudicial comments in his closing argument. Counsel for the plaintiff suggested that the real issue before the jury was to determine who was, and who was not, telling the truth. There was a wide variance in the range of valuation as testified to by the witnesses. The plaintiff’s witnesses testified to a valuation of from $500 to $750 per acre and the defendants’ witnesses to a valuation of between $6,000 and $7,000 per acre. In his argument, plaintiff’s counsel suggested that the variation in the testimony pertaining to the value of the land reflected a difference in the credibility of the witnesses; and that the jury should not compromise in reaching its verdict, but rather, should seek the truth, which in turn would determine the value of the land.

In Commonwealth Elec. Co. v. Rose, 214 Ill 545, 73 NE 780 (1905), on pages 561 and 562, the court stated:

“Counsel may arraign the conduct of the parties, and impugn, excuse, justify, or condemn motives, so far as they are developed in evidence, or assail the credibility of witnesses when it is impeached by direct evidence, or by inconsistency, or incoherency of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. ‘He may argue such conclusions from the testimony as he pleases, provided he does not misquote witnesses.’ (2 Ency of Pl & Pr p 716). It has been said: ‘Just and fierce invective, when based upon the facts in evidence and all legitimate inferences therefrom, is not discountenanced by the courts.’ (2 id. p 747).”

We do not think that the conduct of counsel went beyond the limits approved by the court in the foregoing decision. In his argument, plaintiff’s counsel referred to the statements and evidence on which he was basing his conclusions and we do not find them improper.

We also note that the defendants offered no objection to the argument of the plaintiff’s counsel, and we do not find that his argument was so unwarranted and seriously prejudicial as to permit our review and reversal in the absence of objections in the trial court. Belfield v. Coop, 8 Ill2d 293, 313, 134 NE2d 249 (1956); City of Chicago v. Vaccarro, 408 Ill 587, 600, 97 NE2d 766 (1951); Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 25, 66 NE2d 873 (1946); Redmond v. Huppertz, 71 Ill App2d 254, 259, 217 NE2d 85 (1966).

The testimony as to value was in conflict. The jury viewed the property in question and its verdict was within the range of the testimony. Absent reversible error in the trial, the verdict of a jury will not be upset unless it is clearly shown that it resulted from passion, prejudice or palpable mistake. County of Cook v. Colonial Oil Corp., 15 Ill2d 67, 69, 70, 153 NE2d 844 (1958); Park Dist. of Highland Park v. Becker, supra, 468. We find no reversible error in the trial of the case and no showing in the record that the verdict was the result of passion, prejudice or palpable mistake. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author:
SMITH, P. J. TRAPP, J., concurring.
      CRAVEN, J., dissenting:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Orville McCoy, Defendant-Appellant.
    Gen. No. 10,931.
    Fourth District.
    November 12, 1968.
    CRAVEN, J., dissenting.
    Hagin Harper, of Champaign, for appellant.

      No brief for appellee.
   SMITH, P. J.

Convicted in a bench trial of involuntary manslaughter for conduct arising out of an automobile accident, the defendant pleaded not guilty, waived a jury trial, was found guilty by the court and admitted to probation. One of the probationary terms was a one-year sentence to the Illinois State Farm at Vandalia. Defendant appeals not only from the judgment of guilty, but also from the order granting probation and “denying the defendant the State’s recommendation that a thirty-day jail sentence be imposed.” His motion for new trial attacks the judgment of guilty on the ground that “the State did not prove the guilt of the defendant beyond a reasonable doubt.”

On oral argument in this court, defense counsel suggested that we should treat the “not guilty” plea as a tacit “guilty” plea and clearly indicated that the spectre of a wrongful death action was either pending, impending or working in the hinterlands and that it casts its spell over this entire proceedings. Patently in this court, we cannot treat a not guilty plea as a “tacit” plea of guilty. “The law of Illinois does not recognize a ‘provisional or pro forma’ plea. . . . (People v. Miller, 264 Ill 148.) ” People v. Grabowski, 12 Ill2d 462, 464, 147 NE2d 49, 50. There was a not guilty plea in the trial court and that is where it must remain on this record on review.

Defendant’s motion for new trial attacks the judgment of guilty on the ground that “the State did not prove the guilt of the defendant beyond a reasonable doubt.” In his brief to the court accompanying the motion for new trial, he sets up as the sole ground that the only evidence heard by the court was hearsay evidence; that such evidence has no probative value, and that accordingly there was no evidence upon which the court could find (1) that a crime was committed or (2) that the accused did it. The sole question therefore is whether uncontradicted hearsay testimony received without objection and standing alone may establish guilt beyond a reasonable doubt.

When the case was called for trial, the court inquired as to whether or not both sides were ready to proceed. Defense counsel said, “I might say to the Court, off the record. . . .” (Not reported.) The State’s Attorney then said, “Both sides are ready and I would like to be sworn.” He then testified that he had attended the coroner’s inquest, heard the witnesses testify at that inquest and had also made some independent investigation of the circumstances himself. He related the occurrence events as told to him, gave the names of all the witnesses, stated that these facts could be established by evidence that is not hearsay and rested. The facts related, if competent and true, fully justify the court’s decision in the case and its disposition.

The defense counsel then stated, “The defendant rests.” The record shows that both parties waived argument, the court found the defendant guilty of involuntary manslaughter and entered judgment on that finding. Defendant moved for probation. On May 26, the matter came on on the petition for probation. No evidence was offered by either side, but both attorneys argued the merits of probation. The probation officer’s report was filed that morning with a recommendation for probation and a “short sentence.” After reviewing the circumstances, the court then stated that he saw no reason why he should not grant probation, but that “I think I should impose as a condition of this probation a very decisive jail sentence or a state farm sentence. Now what that should be, I don’t know . . . but it can’t be less than 1 year.” The defense then said, “I wonder if we might see the Court in chambers ? With the State’s Attorney.” The Court, “I will be glad to talk to you. I want to take all these things in consideration.” Whatever may have transpired in chambers is not reported, but its result was an order admitting the defendant to probation with a term of 1 year at the Illinois State Farm at Vandalia.

The statement that hearsay testimony has no probative value and has no tendency to prove a substantive fact is much too broad. Evidence received under the many exceptions to the hearsay rule does not change its name; it is still hearsay. It is, nevertheless, admissible and it does have probative value. Originally stigmatized as a sibling of the gossip family, a general dubiety arose about its accuracy and its truth and it was denied admissiblity. Through permissive and restrictive legislative rules of evidence, judicial decisions, necessity, the experience of mankind, the passage of time and where the circumstances under which the statements are made establish that the probability of its truth and its accuracy outweighs its heritage of unreliability, the rule against admissibility has been steadily eroded. The fact that such testimony is received without objection has no effect on its inherent quality and adds nothing to its probative value. People v. Harrison, 25 Ill2d 407, 185 NE2d 244. The fundamental purpose of the hearsay rule was and is to evaluate the quality of the evidence by subjecting the source of the assertion to cross-examination by the party against whom it is offered. Absent the opportunity for cross-examination and in the face of an appropriate objection, the objection must be sustained and the proffered evidence rejected. See discussion in People v. Carpenter, 28 Ill2d 116, 190 NE2d 738.

In 79 ALR2d 897, II, § 3, it is stated:

“It appears to be the general rule, supported by the overwhelming weight of authority, that where inadmissible hearsay evidence is admitted without objection, it may properly be considered in determining the facts, the only question being with regard to how much weight should be accorded thereto.”

In Town of Cicero v. Industrial Commission, 404 Ill 487, 89 NE2d 354, 360, it is stated:

. . Testimony, although hearsay and incompetent, if received without objection is to be considered and given its natural probative effect as if it were in law admissible. . . .”

The rationale of this rule is aptly stated in Poluski v. Glen Alden Coal Co., 286 Pa 473, 133 A 819, 79 ALR2d, pp 911, 912, in these words:

“. . . Hearsay evidence may accurately portray a given set of circumstances. The reasons which exclude such a portrayal do not detract from its truth or accurateness. These reasons are the legal barriers which have been erected by the law, and which, in the interest of justice, the parties may move aside. Under this reasoning, the evidence is then competent to the full extent of such probative value as it may have under all the circumstances.”

Received into evidence without objection, this evidence does have probative value. How much? The trial court examined, tested and weighed it. In the crucible in which it was presented to him, he found its accuracy and its authenticity without blemish and felt and found that it was sufficient to prove the guilt of the defendant beyond a reasonable doubt. It would be fictional fantasy to conclude that anyone in the courtroom on the day this evidence was presented, including the defendant and his counsel, doubted or disputed but that the recitation of the occurrence events did accurately and truthfully state the facts. Nothing in this record — save the unsavory reputation of hearsay testimony — weakens this conclusion. The trial court’s vision was clear and his scales were accurate.

This record must be appraised in its unusual and unique factual background. The indictment charged involuntary manslaughter through the operation of a motor vehicle in a reckless manner. It is thus clear that the spectre of a wrongful death action either pending, impending or lurking in the hinterlands casts it spell over this proceedings. With commendable forthrightness, it was so indicated on oral arguments in this court. There was no objection to the testimony of the State’s Attorney, there was no motion to strike it as hearsay, there was no motion for a verdict of not guilty because of its insufficiency. Both sides waived argument on the issue of guilt. There was a motion for admission to probation; there was a hearing on that motion with neither side offering any evidence, with both sides arguing for probation, and with the only basic issue presented being whether or not there should be confinement as a part of the probation order and if so, how long. The only disenchantment came in the length of the jail sentence. In its absence, there is little doubt but that this case would have been laid to rest in the trial court.

In this court, the defendant now seeks only an absolute discharge or in the alternative a new trial. It is almost universally recognized in this State that an accused may by stipulation waive the necessity of proof of all or any part of the case which the People have alleged against him. Having done so, he cannot complain in this court of evidence which he has stipulated into the record. People v. Hare, 25 Ill2d 321, 324, 185 NE2d 178, 179. Citing People v. Polk, 19 Ill2d 310, 167 NE2d 185; People v. Pierce, 387 Ill 608, 57 NE2d 345; People v. Malin, 372 Ill 422, 24 NE2d 349. Stipulated facts may be hearsay, but are accepted as the truth because they are stipulated to in open court and are treated either as admissions by the defendant or as the mutual agreement of the parties as to the truth. It would be traveling on a treadmill to return this case to the trial court for proof of facts accepted as true by everyone. Neither in the trial court nor in this court is it remotely suggested by the defendant that the facts recited by the State’s Attorney as to the occurrence events are untrue. The proceedings was patently an attempt to dispose of an unpleasant matter in a pleasant manner. While purportedly on its face an adversary proceeding, it was in truth and in fact an “agreed hearing.” There was no agreement either as to probation or a jail sentence. The probation officer recommended probation, the State’s Attorney did not oppose it, and both attorneys discussed only the desirability of or the necessity for a jail sentence. There was no seduction or betrayal of the defendant by the State. It warps reality beyond recognition to assert that the acquiescence in, consent to, approval of or a waiver by the defendant of either the admissibility of or the weight attributable to this testimony is not shown by this record. Both the procedure and the result, save only the jail sentence, were in effect and in fact mutually agreed to. Neither due process, fair play nor simple justice require us to exonerate this defendant from the procedure and the result to which he knowingly, willingly, and we submit, intentionally subscribed. In so doing, we do not excommunicate from criminal proceedings either the rules of evidence or the requirement that the defendant’s guilt be established beyond a reasonable doubt. We impose no onerous burden on the defendant. We require him only to use the procedural tools available to him in the trial court before complaining in this court. He can’t complain of the weeds in the garden which he joined in planting if he elects, as he did here, not to use the hoe. The judgment is affirmed.

Affirmed.

TRAPP, J., concurring.

CRAVEN, J., dissenting.

CRAVEN, J., dissenting:

Although it is difficult to conceive of a criminal case in which there is no evidence of the crime charged nor of the defendant’s guilt other than pure hearsay, this is such a case. My colleagues affirm the trial court, sitting without a jury, in finding the defendant guilty, with the record in such an inconceivable state. I cannot agree with either the result reached nor the route traveled.

It is, of course, fundamental that in a criminal proceeding the accused is presumed innocent until his guilt is established. The burden of proof is upon the prosecution to establish beyond all reasonable doubt the fact of the crime and the defendant’s criminal responsibility for its commission. The burden of proof does not shift, and inaction by the defendant can never be a replacement for the affirmative burden on the prosecution.

In this case the defendant is charged with involuntary manslaughter, being section 9-3 of chapter 38, Ill Rev Stats 1965, the specifics of the charge being that the defendant, “acting in a reckless manner, on October 8, 1966, struck and killed Nellie LeCrone, with an automobile, without lawful justification.” The defendant entered a plea of not guilty. The cause was set for trial on May 11, 1967. The defendant waived jury trial. Both the defense and prosecution announced that they were ready to proceed. The state’s attorney, at his request, was sworn and testified. His testimony, the only testimony in the case, is as follows:

“. . . I am State’s Attorney of this County. On the eighth of October, 1966, Orville McCoy, who is the defendant in this proceeding, and who is the gentleman sitting at the counsel table here in the Court Room, was driving an automobile in a southernly direction from Monticello, apparently headed toward Bement at about ten o’clock in the morning. I attended the Coroner’s inquest, which was held in Bement, on November third, and heard the witnesses testify at that inquest. I also made some independent investigation of the circumstances concerning this incident. While Mr. McCoy was driving in a southernly direction he crossed the center line of the pavement so that he was driving on the wrong side of the pavement, and narrowly missed having an accident with a Mrs. Scrimager, who was forced off the road in order to avoid a head-on collision with the car being driven by Mr. McCoy. The next car was being driven by a daughter of Mrs. LeCrone and while the car being driven by Mr. McCoy was also on the left-hand side of the road there was a head-on collision between his car and the LeCrone car, and as a result of that collision Mrs. LeCrone died. My further investigation brought out the fact that before Mr. McCoy left Monticello he had been in a local tavern, The Corner Tavern, and had two shots of whiskey with beer chasers, and this matter was presented to the Grand Jury and an indictment returned indicting him for involuntary manslaughter. These facts could be established by evidence, which is not hearsay evidence, by Michael William LeCrone, who was a passenger in the LeCrone car, by Clifford Scrimager, who was on the highway and saw Mr. McCoy driving in an erratic fashion, by Susan Scrimager who was also driving on the highway, and was forced off the highway in order to avoid a collision with Mr. McCoy, by Donald Blickensderfer, who was a State Trooper, who investigated the accident after it occurred, by Margaret A. Camden who was the driver of the automobile in which Nellie LeCrone was a passenger, and that is all I care to say at this time.”

No objection to this narrative recitation by the state’s attorney was made by defense counsel and no question was raised as to the propriety of the prosecuting attorney’s testifying. No other evidence was offered by the People and none was offered by the defense. The only pertinent thing in the record attributable to the defense relevant to the merits of the proceeding is the one phrase that “the defense rests, . . . .” Both sides waived argument and the court found the defendant guilty.

The foregoing is the entire record other than those portions of the record relating to the probation proceedings, and those are irrelevant to the issue in this case as I see it.

The issue here, and the only issue, is whether hearsay evidence, admitted without objection and unsupported by any other evidence of any kind or character, will support a finding of guilty in a criminal case. I think it will not.

Hearsay evidence is excluded when objection is made because it is not reliable evidence. It is indeed and in fact a prominent member, if hot the patriarch, of the gossip or rumor family. “Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay is totally inadmissible.” Queen v. Hepburn, 11 US 290, 3 L Ed 348 (1813). This is the apt language of Mr. Chief Justice John Marshall. In addition, the inability to subject hearsay to the cleansing effect of cross-examination is one of the fundamental reasons for its judicial rejection. See People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963).

This rule is a rule of evidence. It can be, and in this case was, waived. The effect of the waiver means only that the hearsay evidence is admitted and may be considered. Once it’s admitted, what is its weight, its worth, what is its reliability ? Certainly it is not enough to prove guilt beyond a reasonable doubt.

The rule applicable to the great majority of jurisdictions is stated:

“Hearsay evidence, admitted without objection, has been held to have probative value, and should be considered and given its natural probative effect, subject to any infirmative suggestion due to its inherent weakness, and may establish a material fact in issue, support a finding, and sustain a verdict or judgment. However, such evidence should be given only the weight to which it is entitled, and the failure to object adds no weight to the evidence if intrinsically it had none. In some jurisdictions it has been held that hearsay evidence, although admitted without objection, is without probative force, is incompetent to establish a material fact in issue, and will not sustain a finding or sustain a verdict or judgment when unsupported by other evidence.” 88 CJS, Trial, § 153. (Citations omitted.) See also 30 Am Jur2d, Evidence, § 1103; 4 Jones, Evidence, § 984 (5th ed 1958); and the annotation on the subject in 79 ALR2d 890.

Although many cases are cited and discussed in the annotation, none suggests that hearsay alone will support a criminal felony conviction. The relevant Illinois cases certainly do not lead one to that conclusion.

In Grier v. Barkley, 182 Ill App 541, the court held that hearsay evidence to the effect that a loan was made by a husband to his deceased wife in consideration of her signing a contract to sell certain land was not proof of such fact even though the evidence was admitted without objection.

Mr. Justice Solfisburg, speaking for the Appellate Court Second District, in Looby v. Buck, 20 Ill App2d 156, 155 NE2d 641, 644 (2nd Dist 1959), observed that “A statement by a witness whose testimony is based not upon personal knowledge but upon hearsay has no tendency to prove anything.” The court cited 2 Wigmore on Evidence (3rd ed, 1940), § 657.

In People v. Harrison, 25 Ill2d 407, 185 NE2d 244 (1962), the court recognized the unreliability of hearsay and observed that its probative value was not enhanced by the fact that it was received without objection.

One Illinois Appellate case, Arkansas Sweet Potato Growers’ Exchange v. Wignall-Moore Co., 249 Ill App 34, held that unobjected to hearsay was sufficient to establish the graded rating of some potatoes. In People v. Jones, 382 Ill 603, 48 NE2d 364 (1943), hearsay evidence as to corporate existence was held sufficient to establish that fact.

In cases where the burden of proof is by the preponderance of the evidence, hearsay may be sufficient, if believed by the trier of fact, to establish a fact in controversy. On appeal hearsay may be sufficient to support a civil judgment. Carraway v. Johnson, 63 Wash2d 212, 386 P2d 420. However, if the quantum of proof required is “substantial evidence,” hearsay alone is not sufficient. There must be a residuum of legal evidence or evidence of some probative value. William H. Van Vleck, Inc. v. Klein, 50 Misc2d 622, 271 NYS2d 64.

In Benjamin v. Benjamin (Mo), 370 SW2d 639 (1963), the court indicated that if a social worker report, admittedly hearsay, had been the only basis of a child custody award, the court would seriously consider reversal.

While I may not be in accord with the minority view, as evidenced by Texas, Georgia and some New York cases, that hearsay has no probative value and will not support a finding of fact, no case has been cited that suggests that hearsay, whatever the source, can, unaided by some residuum of reliable evidence, support a finding of guilty in a felony case.

The majority opinion discusses the fact that this record is in such an unorthodox posture possibly because of a civil action for wrongful death either pending or impending. That, to me, has no bearing on the issue and certainly does not excuse the unorthodox procedure here employed. The defendant here pleaded not guilty and the burden of proof was on the prosecution. A wrongful death case, actual or contemplated, does not alter the criminal proceeding, nor affect it in any way.

I find nothing in the record that justifies a conclusion that the defendant “stipulated” to anything. The failure to object to the narrative statement of hearsay renders it admissible, but such failure to object is not a stipulation as to its truth. The failure of the defendant to object when objection should have been imposed, as a matter of reflex, cannot be translated so as to make passive conduct active and the equivalent of a stipulation as to the truth of the narrative statement. To do so is to effectively nullify the plea of not guilty and to create a provisional or pro forma plea or a nolo contendere plea, both of which are alien to the criminal law of this jurisdiction. People v. Grabowski, 12 Ill2d 462, 147 NE2d 49 (1958).

There is in this case an undisposed of motion for a new trial, alleging as the grounds therefor that there was a failure to prove the defendant guilty beyond a reasonable doubt. Failure to prove guilt beyond a reasonable doubt is not grounds for a new trial, and even if we would like to send this case back for a new trial with a fresh start, we would be precluded from doing so. See the thorough discussion of this point by Mr. Justice English in the supplemental opinion on petition for rehearing in People v. Brown, 99 Ill App2d 281, 241 NE2d 653 (1st Dist 1968).

It is regrettable that the state’s attorney did not see fit either to file a brief or to argue this matter orally before this court. This failure leaves the judgment of the trial court without the support of a brief and argument and, in part at least, casts this court in the dual role of advocate and judge. This failure could well justify a reversal without consideration of the merits. See People v. Spinelli, 83 Ill App2d 391, 227 NE2d 779 (2nd Dist 1967); People v. Keeney, 96 Ill App2d 323, 238 NE 2d 614 (4th Dist 1968). Two reasons exist, therefore, that in my view compel a reversal. I find none that justify an affirmance. Accordingly, I dissent.


author: CRAVEN, J.,

text:
    Esther Rapp, Plaintiff-Appellant, v. Katharine C. Kennedy, Defendant-Appellee.
    Gen. No. 10,964.
    Fourth District.
    November 12, 1968.

      Thomson, Thomson & Mirza, of Bloomington (Chester Thomson, of counsel), for appellant.
    Costigan & Wollrab, of Bloomington (William F. Costigan, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

This case is an action for personal injuries arising out of a two-car automobile accident. Plaintiff was a passenger in one car and the defendant the driver of another. The car in which the plaintiff was riding was being driven by her husband in a southerly direction on Clinton Street in the city of Bloomington. The defendant, driving east on an intersecting street which was subject to a stop sign, drove her car into the right side of the car in which the plaintiff was a passenger.

A jury trial resulted in a verdict for the plaintiff in the amount of $1,200. This appeal is by the plaintiff from that verdict. We are presented with no issue of liability, but only the issue of the alleged inadequate damages awarded and a further contention by plaintiff that the trial court committed error in refusing to instruct on disfigurement as an element of damages.

Summarizing the evidence as it relates to damages, the record indicates that the plaintiff was 46 years old at the time and in good health. The defendant’s car hit the right door and front fender of the plaintiff’s car. After the accident the plaintiff had a pain in her arm and shoulder. She was taken to a hospital and was unable to move her arm or shoulder. She was admitted. Her right clavicle was fractured. It was ice packed for three days and then a cast was put on both shoulders and across her back. The cast remained in place for three months. The plaintiff was hospitalized for a week.

Plaintiff testified that the area above the fracture of the clavicle had a lump and that she could feel it move. At the time of trial she complained of soreness and stiffness in the area of the injury. She further testified that she was unable to work at her regular employment as a janitress in a cafeteria for three and one-half months. Her monthly wage was established to be between $120 and $130. Plaintiff incurred hospital expense of $233.25. Evidence was received of medical bills of $172 from the treating physician and bills totaling some $179 from an osteopathic physician together with the loss of wages. Dr. Justin McNutt, an orthopedic surgeon, testified for the plaintiff and stated that “the right upper extremity had a loss of external rotation at the shoulder joint, and there was a palpable thickening or enlargement of the right clavicle or right collarbone, and there was slight tenderness over the right collarbone. . . . There was a loss of about 20 percent of the range of motion.” He further testified that the injuries were permanent.

With reference to the thickening of the collarbone, the doctor stated that when there is a fracture there is a callus formed on the fracture site. Alignment was described as good.

The plaintiff tendered an instruction (IPI 30.04, 30.01) relating to disability and disfigurement as an element of damages, contending that there was a disfigurement in that there was a callus or a thickening of the clavicle. Objection was made to the “disfigurement” language and the instruction was refused. The trial court ruled that disfigurement was not shown by this record. We agree. In Superior Mining Co. v. Industrial Commission, 309 Ill 339, 141 NE 165 (1923), the court considered disfigurement for purposes of a Workmen’s Compensation proceeding and defined “disfigurement” to mean “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner.” The court, in the cited case, held that disfigurement, for purposes of compensation, would require an evidentiary showing that the disfigurement bears some relation to the capacity to earn and to secure profitable employment. While the limitations on the right to recovery for disfigurement may well not be the same in personal injury cases as there limited for compensation, we see no reason that the definition of “disfigurement” there stated is not here applicable. This record does not establish that there was a disfigurement in the sense of a visible physical change. The thickening or callus formation is established only to have been discernible by touch. The trial court properly refused the instruction on disfigurement.

Taking the enumerated elements of damages recited, the specials, so called, come to slightly over $1,000, leaving approximately $250 for the permanent loss of rotation described, the pain and suffering, past and future disability. In our opinion, the award is so inadequate as to require a new trial on the issue of damages only.

In McManus v. Feist, 76 Ill App2d 99, 221 NE2d 418 (4th Dist 1966), we reviewed the cases applicable to a new trial on the issue of damages only. In that case we affirmed a verdict against an attack that it was inadequate. The verdict was $750. The injuries established were soft tissue injuries, although there was some indication of limitation of rotation of the right arm. In certain respects, there the injuries were also described as permanent. The plaintiff was 67 years old. In the review of that case, we concluded that since the verdict was greater than the out-of-pocket expense, the case fell within the orbit of those authorities which hold that the fixing of damages is the province of the jury.

In this case there was a fracture. The plaintiff was in a cast for an extended period of time. In Horan v. Klein’s-Sheridan, Inc., 62 Ill App2d 455, 211 NE2d 116, 11 ALR3d 365 (3rd Dist 1965), the court observed that there can be no absolute formula fixing exact dollars as compensation for personal injuries and thus the matter rests largely with the discretion of the jury and the approval or disapproval of the verdict by the trial judge.

This court should neither reduce nor overturn a verdict unless it is shown to be erroneous or the result of passion or prejudice, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff. In our judgment, this case falls in the last category. While the verdict adequately covers out-of-pocket expense, it is clear on this record that the sum awarded is not commensurate with the pain and suffering and the permanent injuries shown by the record. See 22 Am Jur2d, Damages § 398; 16 ALR2d at 337 et seq.

The judgment of the circuit court of McLean County is reversed and this cause remanded to that court for a new trial on the question of damages only.

Reversed and remanded for a new trial on the issue of damages.

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


author: SMITH, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronnie Roberts, Impleaded, Defendant-Appellant.
    Gen. No. 10,973.
    Fourth District.
    November 12, 1968.
    Rehearing denied December 12, 1968.

      Epler C. Mills, of Virginia, for appellant.
    Walter F. Farrand, State’s Attorney of Cass County, of Virginia, for appellee.
   SMITH, P. J.

The defendant pleaded guilty to a charge of aggravated battery, probation was denied, hearing in mitigation and aggravation was conducted, and the defendant sentenced to the penitentiary for a period of 3-10 years. The sole issue in this case is whether the trial judge abused his judicial discretion in denying a motion for leave to withdraw the plea of guilty after the report of the probation officer recommended that probation be denied. Defendant has been well represented, both in the trial court by one court-appointed counsel and in this court by another. He was advised of his right to appeal, the clerk was directed to prepare the notice, and present counsel was appointed to represent him. The record further shows that the rights of the defendant were carefully and meticulously protected throughout the proceedings by both the trial court and by both counsel. Defendant’s motion to change his plea asserted only that at the time it was entered, he was “scared and nervous” and “did not understand his rights.”

The action of the trial court must be tested by People v. Walston, 38 Ill2d 39, 230 NE2d 233. In that case previously appointed counsel withdrew and a second attorney was appointed. The defendant there stated that he was innocent and that his plea of guilty was based on the belief that he would be placed on probation. His former attorney sought leave to testify on this issue and it was denied. The Supreme Court reversed and remanded the case for a determination as to whether or not a misunderstanding or misrepresentation prompted the plea of guilty and directed the trial court to conduct a hearing to determine that issue. It is there stated that permission to withdraw a plea of guilty is within the sound judicial discretion of the trial court and should always be exercised in favor of innocence. It should be so exercised where the plea of guilty was entered on a misapprehension of the facts or of the law, or because of misrepresentation by counsel or the State’s Attorney or someone else in authority, or where there is doubt of the guilt of the accused, or where he has a defense worthy of jury consideration or where the ends of justice would be better served by submitting the cause to a jury. On the other hand, where an accused has been fully informed of and well knows his rights and the consequences of his acts, but hopes and believes that he will receive a shorter sentence or milder punishment by pleading guilty than he would upon a trial and conviction by a jury, no grounds are presented for permitting the withdrawal of the plea when he finds that his expectations have not been realized. People v. Morreale, 412 Ill 528, 107 NE2d 721; People v. Grabowski, 12 Ill2d 462, 147 NE2d 49; People v. Temple, 2 Ill2d 266, 118 NE2d 271. The posture of the defendant in this case fits into none of the standards suggested in Walston.

Defendant was keeping company with an ex-wife of one of the victims. On the night before the event, he was asleep in the back end of a car and some of the victims, with others helping, beat him up rather severely. The next day he and one Hankins obtained some shotguns stated to be for hunting squirrels and returned to Beards-town with the ex-wife. They saw one of the victims on the street and followed him in the car. When they reached the scene, the two victims were cleaning fish and had knives. An interchange of words took place, defendant got out of the car and one of the victims approached him with a knife in his hand. The defendant fired two shots after the victim had stopped and was 20-25 feet away, and his friend Hankins fired another and some of the pellets lodged in the victim’s leg. On a probation hearing, the defendant testified that he was afraid of the victim and had seen the victim knife another party on another occasion and hence he fired in self-defense. Defendant was 25 years of age, and beginning in 1961 had had considerable experience with the law. In 1961, he was sentenced for 6 months to Vandalia for larceny and transferred to Joliet. In 1962, he was sentenced to Vandalia for 90 days for larceny and transferred to Menard. In 1962, he was sentenced to one year at Vandalia for disorderly conduct and was transferred to Menard. In 1964, he was sentenced to Vandalia for one year for resisting a peace officer. In 1966, he was admitted to probation for theft. Again in 1966, he was sentenced to Vandalia for 90 days for resisting a peace officer and for criminal damage to property and transferred to Joliet. In 1967, he was sentenced to the county jail for 60 days for battery and admitted to probation for one year. The contents of the probation order, together with the testimony of the witnesses on the probation hearing, were stipulated as evidence on the hearing in mitigation and aggravation. In addition, the trial court conducted an extensive investigation into the defendant’s family history, etc. He testified on the last charge that he made no reports to the probation officer because he considered the 60 days in jail sufficient punishment for the crime with which he was charged. The evidence clearly discloses that the defendant, Hankins and the ex-wife of the victim vzere touring around and resumed the confrontation with the victims notwithstanding the previous night’s difficulty and altercations between them. His guilt seems conclusive.

The court’s interrogation of the defendant during the proceeding and his answers clearly indicate the defendant thoroughly understood his rights. While not in any sense conclusive, he was not a stranger to court proceedings. He may well have been scared and nervous. On this record we fail to see where permission to withdraw the plea of guilty is necessary to correct an injustice either substantial or otherwise. Neither the conduct of the hearing, the representations of counsel nor the result offend any proper concepts of simple justice. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Kennedy, Defendant-Appellant.
    Gen. No. 10,974.
    Fourth District.
    November 12, 1968.
    Rehearing denied December 18, 1968.
    Reed A. Woolley, of Beardstown, for appellant.
    Walter F. Farrand, State’s Attorney of Cass County, of Virginia, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant was found to be a sexually dangerous person under the provisions of pars 105-1.01 et seq., of chapter 38, Ill Rev Stats 1965, and committed to the custody of the Director of the Department of Public Safety as required by statute. This appeal is from that order of commitment.

Initially, we must examine the question of jurisdiction. It is the contention of the State that this court lacked jurisdiction to grant leave to appeal in this proceeding since more than ten months elapsed from the date of the order of commitment.

The chronology is as follows:

On January 19, 1967, a complaint was filed charging Robert Kennedy with deviate sexual conduct. On January 20, 1967, the defendant was arraigned and advised of his right to counsel. He waived counsel in the criminal proceeding. On January 25, 1967, a petition was filed seeking to commit him as a sexually dangerous person. On the same day, an order was entered providing for the appointment of two psychiatrists to examine the defendant on January 30, 1967, and make a report of their examination to the court. On February 1, 1967, the defendant was advised of his right to counsel in the sexually dangerous person proceeding, and notwithstanding his assertion that he did not need counsel, the court determined that the proceedings were of sufficient seriousness to require counsel and appointed an attorney to represent him. On February 2, the report of one of the examining psychiatrists was filed and on February 10, 1967, the report of the second examining psychiatrist was filed, each relating to psychiatric examination of the defendant on January 30,1967.

On March 3, 1967, a hearing was held on the petition. The two examining psychiatrists testified, each expressing the opinion that the defendant was a sexually dangerous person.

It is apparent that the psychiatric opinion was founded upon information given to the psychiatrist by the defendant at the time of the interview and prior to the defendant’s being advised of his right to counsel and prior to the appointment of counsel.

Benjamin Kennedy, the then fifteen-year-old son of the defendant, testified as to acts of deviate sexual conduct.

The court found the defendant to be a sexually dangerous person and on March 3, entered an order committing him to the custody of the Director of the Department of Public Safety.

The defendant, by letter dated August 17, 1967, sought leave to appeal. This court determined that the August 17, 1967, letter was a petition for leave to appeal, allowed the petition and ordered the proffered notice of appeal to be filed. Counsel was appointed and the matter is in this court on appeal upon the order of commitment.

It is the contention of the State that Rule 303(e) of Supreme Court Rules, effective January 1, 1967 (Ill Rev Stats 1967, c 110A, § 303(e)), precludes an appeal for the reason that the notice of appeal was not filed within sixty days from the date of judgment. It is further the contention of the People that since this proceeding is civil in nature, there was and is no requirement that the defendant be advised of his right to appeal. This contention is based upon Rule 605 of the Supreme Court Rules (Ill Rev Stats 1967, c 110A, § 605). If the position of the State with reference to this jurisdictional matter is correct, then this court improvidently granted the leave to appeal and the State’s motion to dismiss it should be allowed.

In People v. Potter, 85 Ill App2d 151, 228 NE2d 238 (4th Dist 1967), we examined the opinions of the Illinois Supreme Court relative to proceedings under the Sexually Dangerous Persons Act. We there concluded that although the proceedings are civil in nature, our Supreme Court has recognized and imposed procedural safeguards normally applicable only where procedural due process in criminal cases is involved. In Specht v. Patterson, 386 US 605, 18 L Ed2d 326, 87 S Ct 1209 (1967), the United States Supreme Court, in construing a similar sex offenders statute, stated unequivocally that these commitment proceedings are subject to the equal protection clause of the Fourteenth Amendment and to the due process clause of the Federal Constitution, and that this is true whether the underlying proceedings are denominated civil or criminal.

Our holding in Potter was that one charged with being a sexually dangerous person was entitled to counsel prior to psychiatric examination, and further that he was entitled to have the Miranda warnings before such psychiatric examination. We there reversed and remanded for a new trial. The deficiencies that we found to exist in Potter exist here, and if the rules for criminal appeals apply, we have jurisdiction and under Potter, must reverse and remand.

However, in People v. Fish, 36 Ill2d 220, 221 NE 2d 637 (1966), the Supreme Court held that the rules of civil practice apply to appeals in sexually dangerous persons proceedings. The action of the Appellate Court in that case in granting leave to appeal was determined to be error for the reason that the appeal was not sought within the then time limitations of the Civil Practice Act and civil appeal rules. The opinion in Fish is determinative of the motion to dismiss the appeal in this case. Rule 303(e), effective January 1, 1967, does apply and since the petition for leave to appeal here was filed more than sixty days after the March 3 order, we are without jurisdiction to grant leave to appeal and our order granting leave to appeal was in error. The State’s motion to dismiss the appeal must be allowed.

In adopting the new rules, the Supreme Court provided:

“. . . To the extent that in the opinion of the trial, Appellate, or Supreme Court the application of the new rules in a particular action then pending would not be feasible or would work injustice, the former procedure applies.”

This language supplied an escape valve for actions then pending. However, this proceeding cannot be classed as having been pending on January 1, 1967 — the petition was not filed until January 25.

This court has no authority to make rules governing the time schedule for appeal. Such authority and responsibility clearly rests only in the Supreme Court. People ex rel. Stamos v. Jones, 40 Ill2d 62, 237 NE2d 495 (1968). We are, therefore, without authority to extend the time for leave to appeal in this case notwithstanding the infirmities in the proceeding herein-above mentioned. In our judgment, however, the issues here involved are of sufficient public interest and of sufficient importance that we should on our own motion grant a certificate of importance, and it is so ordered.

Appeal dismissed; certificate of importance ordered issued on the court’s own motion.

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


text:
    Checkley and Company, Inc., and Franklin B. Bartholow, Plaintiffs-Appellants, v. The Citizens National Bank of Decatur, a National Banking Corporation, Clyde Sturgell, Sr., Annetta Sturgell, and Eugene Miller, in His Capacity as Sheriff of Douglas County, Illinois, Defendants-Appellees.
    Gen. No. 10,987.
    Fourth District.
    November 18, 1968.

      Kenneth E. Baughman, of Tuscola, for appellants.
    Armin E. Baer, of Tuscola, Baird & Latendresse, of Decatur (Lloyd F. Latendresse, of counsel), for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

This appeal presents the question whether a purchaser at a partition sale is entitled to recover a pro tanto portion of the purchase price bid by him where the land sold at a price per acre based upon a definite metes-and-bounds description of a certain number of acres, “more or less,” and by later survey it is determined that there is a shortage of 6.68 acres due to an encroachment neither of record nor alleged to be ascertainable by visual inspection.

Plaintiff-appellant corporation, through its agent, H. R. Checkley, bid off and purchased for $800 an acre at public partition sale held by a sheriff, a tract of land. The land was offered on a per-acre basis. The advertised legal description was by metes and bounds, but the tract was also referred to as “80 acres, more or less.” Thereafter, the corporation had a survey made of the purchased tract which showed only 73.32 acres, or 6.68 acres less than the 80. Neither the purchaser nor the sheriff were aware of the shortage until after the survey. The purchaser paid $719.80 for the survey. The shortage was not apparent from the record title nor from the metes-and-bounds description.

Plaintiffs filed their complaint for recovery of $5,344 on the basis of $800 an acre for the 6.68 acre shortage and for $719.80, the cost of the survey. Judgment was prayed against defendant-bank and Clyde Sturgell, Sr., as administrators of the estate of Hattiebelle Fornof, deceased, to whom a portion of the proceeds of the partition sale of this and other tracts was paid, and against Annetta Sturgell, one of several of the heirs to whom the remaining proceeds of the sales were paid. Upon motion, the trial court dismissed the complaint. Two additional counts of the complaint for relief against the sheriff were voluntarily dismissed by plaintiffs. It appeared that some $300,000 of the total of the partition sales moneys had been transferred to the bank and Sturgell as administrators to pay debts and taxes of the estate and the remainder distributed to some nine heirs, including Annetta Sturgell.

Judicial sales long have been favored by the courts as a means of executing court decrees. The doctrine of “caveat emptor” is applicable to judicial sales in Illinois, including sales in partition proceedings. This doctrine is that purchasers at a public judicial sale are chargeable with notice of all matters of record and affecting title and are subject to any defects of record. Likewise, purchasers are chargeable with notice of the interest and title of persons in possession and matters notorious and visible. 23 ILP, Judicial Sales, § 14; Berman v. Birney, 412 Ill 240, 106 NE2d 178 (1952); McManus v. Keith, 49 Ill 388.

Warranties and representations as to title ordinarily are not made or implied to judicial sales. Deficiencies in or failure of title afford no relief in the absence of fraud or misrepresentation in such sales. Berman v. Birney, supra. These principles have been adopted as a matter of public policy to facilitate and encourage judicial sales. Such sales are costly, and recisions and resales would cause heavy expense, inconvenience and delay.

Where, however, as here, the sale is by a definite metes-and-bounds description and it is alleged that the tract was offered for sale and bid at the sale on the basis of 80 acres on a per-acre unit basis, the application of these principles would work an injustice arising from a mutual mistake of fact. While this issue appears never to have been passed upon by the courts of this state, relief under similar facts has been granted in other jurisdictions. Swanson v. Baldwin, 249 Iowa 19, 85 NW2d 576 (1957), annotated at 69 ALR2d 249; Peake v. Renwick, 86 SC 226, 68 SE 531 (1910). We feel that equity requires an abatement of the sale price on a per-acre basis for the shortage in acreage of 6.68 acres. However, since officers selling at judicial sales are not required to make a survey of the property, no allowance can properly be made for the cost of the survey.

The further contentions that the administrators and a single heir should not be liable for the recovery of the pro tanto sale price do not merit prolonged discussion. The sale price paid must be refunded by those who received it. Certainly the administrators are alleged to have received an overplus of the liabilities required to be paid by them, and recoupment first should be made from their funds. Should the funds in their hands be insufficient to pay the entire sum, the other disributeeheirs would be liable, whether one or more, upon being joined in the proceeding. Accordingly, the order of the trial court dismissing the complaint should be reversed and this cause remanded with directions.

Judgment reversed and remanded with directions to overrule the motion to dismiss and to proceed in a manner not inconsistent with the views here expressed.

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


author: CRAVEN, J., SMITH, P. J., concurs. TRAPP, J., dissenting:

text:
    The Department of Public Works and Buildings of the State of Illinois, for and in Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Harold D. Bozarth and Lyle Clark, Defendants-Appellees.
    Gen. No. 11,025.
    Fourth District.
    November 18, 1968.

      TRAPP, J., dissenting.
    William G. Clark, Attorney General of State of Illinois, of Chicago and William F. Costigan, Special Assistant Attorney General, of Bloomington, for appellant.
    Fleming, Messman & Lapan, of Bloomington (Roger D. Lapan, of counsel), for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

This is an action of eminent domain by the State in connection with Federal Aid Interstate Route No. 74 in McLean County. At a point approximately four to five miles southeast of Bloomington, the State seeks to acquire a permanent easement of a 30-foot strip across a farm tract of defendant Bozarth which would provide access to a 46.7-acre farm tract of Harris Trust and Savings Bank. The Harris tract is bordered on the north and east by that of Bozarth. The Interstate goes on a diagonal across the Harris tract northwesterly-southeasterly and cuts through the Harris tract. Prior to construction of the Interstate, the entire Harris tract had access onto Township Road 296, which after construction is no longer available to the parcel of the Harris tract north of the Interstate. Defendant Bozarth filed a traverse and motion to dismiss, contending that the property sought to be acquired was not being taken for a public use but only to aid another private landowner.

The circuit court dismissed the petition and suit as to the proposed easement-taking, holding it was not for a public use but to provide access to private property. This appeal followed.

Defendant Bozarth owns a tract of 148.62 acres of farmland and another of 49.75 acres. These tracts are contiguous to each other and to the parcel of land of Harris Trust and Savings Bank.

Interstate 74 is to be constructed in a northwesterly-southeasterly direction through McLean County and severs the Harris tract into two parcels, one of which will lie north of the Interstate, consisting of a triangular piece of 46.7 acres, bordered on the south and west by the Interstate onto which no access is permitted, and on the east and north by Bozarth’s parcels, and the other south of the Interstate with 94.9 acres. The Harris tract of 46.7 acres north of the Interstate will lose its direct access to the Township Road.

This condemnation proposed is of a permanent easement 30 feet in width over land of Bozarth, comprising 0.667 acres, parallel to the right-of-way being acquired from Bozarth. It would provide access to the otherwise landlocked 46.7-acre tract of Harris. The strip would not be graveled or paved, but a culvert would be placed on the east side of the Township Road for an entrance which would be used for agricultural purposes.

The sole question is whether the State, in the construction of an interstate highway, which has been designated a freeway, can condemn interests in real property to provide access to otherwise landlocked parcels.

It is our opinion that it can. In Department of Public Works and Buildings ex rel. People v. Koch, 62 Ill App2d 182, 210 NE2d 236 (4th Dist 1965), a similar question of eminent domain-taking was before this court. There we held that a proposed relocation and extension of a township road was a public purpose, although the proposed extension would service only a part of a tract of land which otherwise would be isolated and would dead-end in a cornfield.

As we observed in the Koch case and as observed in the cases there cited, it is the right of the public to use, not its exercise of the right, that constitutes a public use.

Here, the purpose of acquiring the easement is to provide access to the 46.7-acre tract to the same Township Road that served this property prior to construction of the Interstate. The proposed easement will serve the property for the use of the public just as the public was served by the Township Road prior.

Under the Eminent Domain Statute, the State may acquire the fee or a lesser estate. The State here deems that an easement is sufficient for the use to be provided. We see nothing arbitrary in this position.

In 1965, the legislature amended chapter 121, section 8-105, of the statutes with reference to laying out local service drives in connection with the development of freeways so as to add the purpose of providing “access to any existing highway, road, street, alley or other public way from adjacent areas.” This amendment covers the very type of project here involved. The acquisition of the easement here sought will provide access to Township Highway 296 from an otherwise landlocked area. The fact that it will benefit an individual landowner does not prevent the taking from being a public use under the circumstances here present with the authority granted by the amendment to the statute.

It is clear that the proceedings here by the Department are such as would be permitted under the Koch decision, and further the action is clearly and expressly authorized by the 1965 amendment. A contention that the action is undesirable or unwise is more properly directed to a legislative forum.

The Circuit Court of McLean County was in error in sustaining the traverse and the motion to dismiss, and that judgment must be reversed and the cause remanded for further proceedings.

Reversed and remanded with directions to proceed in accordance with this opinion.

SMITH, P. J., concurs.

TRAPP, J., dissents.

TRAPP, J., dissenting:

The opinion presented does not meet the constitutional requirements for the taking of property. The many cases which hold that the authority to take private property is strictly construed need not be cited.

It is accepted by the majority that the parcel taken will not be improved or maintained, or otherwise used by the State or any public body.

The amended statute relied upon to authorize the taking retains the modifying clause, “. , . is authorized, when traffic conditions justify, . . . .” Chapter 121, § 8-105, Ill Rev Stats 1967. Such provision is in accord with the criterion that public use means public usefulness, utility or benefit. Department of Public Works and Buildings v. Farina, 29 Ill2d 474, 194 NE2d 209. The test employed in the opinion, i. e., an hypothetical right of the public to use the parcel is readily distinguished. The evidence shows that the parcel will not be graded, surfaced, fenced or drained. It is indeed difficult to find any evidence of public usefulness or benefit.

The finding of the opinion that the parcel will not be improved or maintained by a public body is equivalent to a finding that no benefit will accrue to the public. Town of Kingston v. Anderson, 300 Ill 577, 133 NE 347; Sholl v. German Coal Co., 118 Ill 427 at 433, 10 NE 199.

Private property cannot be condemned for a purely private purpose, or for a private use which benefits the public only incidentally. Department of Public Works and Buildings v. Farina, 29 Ill2d 474, 194 NE2d 209. This case is distinguishable from the use of a service road as in Farina. Such is also true of Department of Public Works and Buildings v. Koch, 62 Ill App2d 182, 210 NE2d 236, which concerned the relocation and maintenance of a, township road.

Petitioner’s witness testified that the purpose was limited to providing access to an isolated parcel of real estate, rather than to a public use.


text:
    People of the State of Illinois, Plaintiff-Appellee, and Herbert Lang, et al., Petitioners-Intervenors-Appellants, v. Robert J. Thompson, et al., Defendants-Appellees.
    Gen. No. 11,067.
    Fourth District.
    November 18, 1968.

      Swain, Johnson & Gard, of Peoria (Jack C. Vieley, of counsel), for appellants.
    Dunn, Dunn, Brady, Goebel, Ulbrich and Hayes, of Bloomington (William M. Goebel, of counsel), for appellees.
   SMITH, P. J.

This is an appeal by five taxpayers and voters from an order of the circuit court denying them leave to intervene in a quo warranto proceeding after a judgment sustaining the validity of the district. The State’s Attorney filed the original quo warranto proceeding. The defendants are members of the Board of Education of the newly organized district. The appellees filed their motion to dismiss the appeal accompanied by a supporting brief. Appellants answered. We set the motion for oral argument indicating questions we desired argued orally. Appellants filed their brief on the merits of this appeal. Since the appellants were not original parties to the quo warranto proceeding and are not parties now, the merits of that judgment are not before this court. Strader v. Board of Education of Community Unit School Dist. No. 1 of Coles County, 413 Ill 610, 110 NE2d 191. Indeed the notice to appeal in this case is specifically limited to the order denying the appellants leave to intervene in that court. We thus consider whether they have sufficient interest in the original quo warranto to intervene for purposes of appeal and whether or not the trial court abused his discretion in denying their petition.

The decree establishing the district was entered on January 8, 1968. While the State’s Attorney’s motion to vacate the original decree in quo warranto was pending, counsel for the appellants sought leave to be entered as additional counsel of record. After the State’s Attorney indicated he might not appeal an adverse decision on his motion to vacate the original decree, appellants sought leave to intervene for purpose of prosecuting an appeal. The motion for leave to be added as additional counsel was denied and the petition for leave to intervene was denied. It is conceded that the representation by the State’s Attorney was adequate to the time when he indicated that no appeal would be taken.

It seems reasonably clear that unless someone has the authority to appeal the trial court’s original decree, the organization of this new school district is an accomplished fact. Any doubt existing from previous decisions that the petitioners as taxpayers and voters have sufficient interest to present their petition for leave to intervene has been removed. People v. Firek, 5 Ill2d 317, 125 NE 2d 637. People ex rel. Henderson v. City of Bloomington, 38 Ill App2d 9, 186 NE2d 159. In Strader, after holding that the original decree was not before the court on a petition to intervene, the Supreme Court refused jurisdiction on direct appeal and transferred the case to the Appellate Court, 351 Ill App 438, 115 NE2d 539. In that court, it was held that a denial of a petition for leave to intervene where it was apparent from the record that further litigation would ensue was an abuse of discretion. In People ex rel. Boyington v. Northfield Tp. High School Dist. No. 225, 402 Ill 435, 84 NE2d 553, the petitioners, not original parties, after judgment filed a petition to intervene accompanied by a motion to vacate the judgment finding the district to be validly organized. It was held there that it was not an abuse of discretion to permit intervention.

In People v. Wood, 411 Ill 514, 104 NE2d 800, the Supreme Court was confronted with a motion by the State’s Attorney to dismiss an appeal somewhat similar to the one that we review. In that case, the State’s Attorney filed a proceeding in quo warranto to test the validity of a school district. The court found it to be legally organized. The State’s Attorney elected to abide by that judgment and took no appeal. An underlying school district involved in the decision filed notice of appeal and was the only appellant in the Supreme Court. It was not a party to the original action. The Supreme Court traced the history of the nature of quo warranto and its growth and development. The court recognized that at the time of its decision a writ of error provided a means of review under former practice to nonparties who could show that they were directly injured by the judgment. The court further recognized that the appellant in that case had an interest which in a certain sense was not common to every other member of the public. The court conceded that the denial of the right to appeal in that case might appear to be a technicality, but that actually it was based on sound, practical considerations. In so doing, the court stated in substance that the vesting of the power to institute, dismiss or appeal a quo warranto proceeding rests with the State where purely public rights are concerned, that it avoids the confusion and conflict which would occur if others could interfere at some stage of the proceeding or if control of the quo warranto remedy was to vest in other hands, and that these rules and principles which have evolved have the effect of avoiding conflicts and disputes between state officers and state entities, and that quo warranto actions are founded upon practical considerations which should not be lightly overturned. It further stated in substance that to permit the appeal in that case because of zealousness to insure review would be to let the right of appeal transcend the action sought to be reviewed at the cost of altering the substance and procedure of the action itself. Paragraph two of the present statute, Ill Rev Stats, c 112, If 10, makes it abundantly clear that a citizen having an interest in the litigation is prohibited from instituting or maintaining quo warranto where the State’s Attorney has instituted such a proceeding for the same purpose. An individual citizen or group of citizens with an interest may not maintain the action unless the State’s Attorney or Attorney General has refused to do so and then only with leave of court. We do not find any case where the principles stated in Wood have been superseded, modified or altered as to the control of a quo warranto proceeding instituted by the State’s Attorney or Attorney General. It is not the province of this court to overrule it and if we could, we would not for reasons that follow.

The petitioners here say, however, that this actually deprives them of a right to appeal and the right to be heard in the reviewing court and that this is neither fair nor just. They point out that under chapter 110, § 26.1, Ill Rev Stats 1967, a person has the right to intervene in an action when “(b) . . . the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action.” They suggest that this section is clearly applicable where, as here, the People have abandoned or refused to take an appeal and thus for the first time the representation of the petitioners is no longer adequate. In this context, representation wholly absent must be deemed inadequate. We do not think petitioners can be charged with undue delay or laches in seeking to intervene in this suit after it was begun. Until the refusal to appeal they were adequately represented. We would further observe that permitting these petitioners to intervene for purposes of appeal would not delay the ultimate determination of the quo warranto proceeding on the merits any longer than had the State’s Attorney elected to prosecute an appeal.

These observations, however, do not with any degree of finality control our decision. In Wood we have observed that the control of litigation in quo warranto instituted by the State’s Attorney or Attorney General reposes with that officer. Under Ill Rev Stats 1967, c 110, § 26.1, our legislature has preserved this control in Tf (6) where it states that the trial court in allowing intervention may provide “that in other respects the applicant shall not interfere with the control of the litigation, as justice and the avoidance of undue delay may require.” It seems to us that under this proviso even if the trial court had permitted intervention, the intervenors could not control the litigation unless justice required it. Justice requires a weighing of the interest sought to be protected by the intervenors with the public interest. Indeed in Firek the court points out that in the exercise of a judicial discretion on a petition for leave to file an information in quo warranto, the court may fully protect the rights of the public, and under some circumstances, where the public weal demands, refuse leave to file the information although the clear legal right of the intervener is established. (Citing McPhail v. People ex rel. Lambert, 160 Ill 77, 43 NE 382.) In both Wood and in the Appellate Court decision in Strader, it is noted that sound practical considerations are necessarily involved.

In the case at bar, the record indicates that the organizational petition was filed August 5, 1966. The public hearing was conducted on September 15, 1966. On November 12, the organizational election was held. On November 15, the organizational election was canvassed and the tabulation shows 2,455 for and 672 against the organization of the new district. On January 21, 1967, a Board of Education was elected. On January 30, the organization meeting of the Board was held. On July 1, 1967, the new Board commenced the operation of the district and succeeded to the powers and duties of the Boards of Education of the five underlying community unit districts. The quo warranto proceeding was not instituted until December 27,1967. No one questioned the validity of this district until some months after it had begun to function and after the underlying districts had ceased their functions. It is surely not debatable that the validity of a new municipal entity ought to be tested at the first possible moment. In Iowa, the instant petition would have been barred, if not filed within six months. Swan Lake Consol. School Dist. v. Consolidated School Dist., 244 Iowa 1269, 58 NW2d 349. Michigan has a thirty-day statute. Fulton Township School Dist. v. School Dist. of Essex, 302 Mich 566, 5 NW2d 467. In this State, we are not aided by such a statute. We are aided, however, by the language of the Supreme Court in People ex rel. Lindsey v. Board of Education, 3 Ill2d 159, 168, 120 NE2d 887, where the Supreme Court observed “We can and do see, however, great potential harm to the public generally in permitting the State to challenge the legality of the organization of a municipality without regard to the passage of time. If a judgment of ouster can be entered at any time, however remote, for an irregularity in the organization of a municipality, and all the acts of its officers invalidated, the credit of the municipality generally may be so hampered that they will be unable to perform the public functions for which they are created.” The Supreme Court referred to the Lindsey case in People ex rel. Jordan v. Village of Forest View, 21 Ill2d 384, 390, 172 NE2d 780, 784, and there stated that the Lindsey decision was not based on either the lapse of time or the acquiescence of the plaintiffs, but “rather, the fact that, during the period of delay and acquiescence certain action had been taken by the district and certain conditions had developed whereby great inconvenience and public detriment would result from a judgment of ouster. . . .”

In the light of these principles, the record shows that the new district took over all of the assets and liabilities of the underlying five districts on July 1, 1967, has hired a superintendent, teachers and other personnel, has levied taxes for the operation of the district, has assumed the ownership and operation of the transportation equipment, has secured an option on a site for a new building, has by election voted the funds for such a building, has incurred obligations for architects and engineers, has received a Federal grant for both elementary and secondary schools, that further applications are now pending, that the education of some 3,000 elementary and secondary students are involved, that the status of such students in graduating from an accredited high school as a condition precedent to the pursuit of a higher education is involved, and, in summary, the destruction of the new district would create a chaos comparable to Lindsey.

We further observe that the organization of the school district under the statute imposes a rigid time schedule for the creation of a new district. It seems to us reasonable diligence in testing corporate existence should be imposed upon prospective intervenors and that “justice” so requires. Appellants complain that the trial court did not pass on the issues raised as to the legality of the district, but assert that it held that “it is a valid district if the new administration takes office, begins to spend money, enters into contracts, levies taxes and plans for the construction of a multimillion dollar school building.” Assuming, without deciding, the correctness of this conclusion, perhaps the trial court had Lindsey in mind. Appellants stated squarely to the trial court that they thought the State’s Attorney had done a very fine job at the trial level. “However, our problem is simply . . . that he is not going to appeal.” It seems therefore clear to us that there is no abuse of discretion to deny the petition for leave to intervene where such petition on its face suggests that the intervener can only wind up in a dead-end street. It is a dead-end street for very practical reasons. The number of local governmental units now authorized under our statutes are many. The final and the effective determination that they do or do not exist as lawful corporate units should be determined as expeditiously as possible. This district was declared in existence on November 15, 1966. Its Board of Education was elected in January, 1967. The State’s Attorney and these taxpayers sat supinely by until December, 1967. It is clear from this record that the State’s Attorney did not move until the bonding company raised some questions about imperfections in the organization of the district some eleven months after its organization. Quo warranto is standard procedure for removing such imperfections. Until the decree holding the organization of the district valid, these taxpayers did not move in court. They are now unhappy with the result. The State’s Attorney, under whose sole control the proceeding was up to this point, has elected not to take an appeal. Someone has to make a decision to appeal or not to appeal. It was made by the one clothed with the power to make it. These taxpayers now seek to review, not only this right of the State’s Attorney, but the decision of the court. Suppose that they were granted leave to intervene for the purpose of an appeal and in the process finally conclude that the trial court’s decision was correct and abandon the appeal. Could five other taxpayers come in and say “Well, we’ve been happy until now, but we are now without representation in court. Since the State’s Attorney decided not to appeal and our five colleagues have quit, we would like to intervene for the purpose of prosecuting an appeal” and so on ad infinitum. The legality or the illegality of the corporation’s existence under such circumstances would be forever fluid. For the reasons stated in Wood and because of chaos comparable to that outlined in Lindsey, we hold that the trial court did not abuse his discretion in denying petitioners leave to intervene in this proceeding for the sole purpose of appeal. We do not imply that there may not be circumstances where it would be an abuse of discretion to deny intervention either before or after judgment in a quo warranto proceeding begun by the State’s Attorney. It is sufficient to say that they are not here present. The judgment of the trial court is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.