author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George R. Hammond, Defendant-Appellant.
    Gen. No. 51,113.
    First District, Fourth Division.
    October 8, 1969.
    Rehearing denied November 14,1969.

      Raymond I. Suekoff, of Chicago (Raymond I. Suekoff, Charles Liebman, and Allen Kanter, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Attempt (robbery). Ill Rev Stats (1963), c 38, §§ 8-4 (a), 18-1 (a).

JUDGMENT

After a trial by jury, Hammond and his two codefendants were found guilty of attempted robbery, and Hammond — the only appellant — was sentenced to a term of 10 to 12 years.

POINTS RAISED ON APPEAL

(1) Testimony of alleged oral confessions by codefendants was prejudicial to defendant.

(2) The State failed to prove defendant guilty beyond a reasonable doubt.

(3) Trial counsel for defendant was so incompetent as to deny him effective representation.

(4) The State’s Attorney’s improper conduct deprived defendant of a fair trial.

(5) The trial judge made remarks in front of the jury which were prejudicial to defendant.

EVIDENCE

George R. Hammond, Roscoe Nelson, and Hezekiah Jackson were indicted for attempting to rob William O’Brien on September 20,1963. All three defendants were tried together and were represented by the same attorney.

William O’Brien, for the State:

He was a police officer on September 20,1963, and was on duty with Officers Kodatt and Peebles. He was standing on 63rd Place and his partners were in a car, partially visible, parked around the corner. Three men walked toward him, and two continued by about 40 feet and sat on a railing. The third one (this defendant) walked 5 to 7 feet past, but then turned around and walked up to him, saying, “I would like to commit an act of oral copulation.” The witness replied he was not interested, whereupon defendant threatened him by putting a knife to his throat and demanded his money. At that time the other two men were 30 to 40 feet away. They then ran toward him and started striking him, whereupon O’Brien dedared he was a police officer and “went for his gun.” He succeeded in getting it halfway out when defendant dropped the knife and they all fled. O’Brien pursued, firing two warning shots in the air and a third which hit defendant in the ear, knocking him to the ground where he was placed under arrest, handcuffed, and then taken away in a patrol wagon.

O’Brien returned to the scene of the assault and found a knife on the street. He proceeded to the hospital where stitches were administered for a hand cut received in warding off the knife wielded by defendant. He then went to the police station where he saw Nelson and Jackson in a room with Officers Kodatt and Peebles. Jackson stated, in O’Brien’s presence, that he and Nelson, who had been in Chicago only two weeks, wanted money to return to Missouri; that they made an agreement with Hammond that same night to “stick up” someone.

Hammond was brought into the room with the two co-defendants, and they were asked if he was the man who had suggested the robbery. Jackson replied, “Yes, that is the man.” Hammond denied it, stating that he was only trying to protect the witness.

The police have no record or memorandum of any confessions made by Jackson.

O’Brien put his own initials on the knife and had kept it in his personal custody during the entire time prior to trial.

Police Officer Edward Kodatt, for the State:

On September 20, 1963, he was on duty with his partners, O’Brien and Peebles. From the vehicle in which he was sitting on Union Avenue, he could see O’Brien on 63rd Place. He saw one man approach O’Brien; then two more approached and began swinging at him. Kodatt got out of the car and ran in the direction of the four men. The three fled and he and his partners pursued, eventually catching all of them. As he and Peebles were walking Jackson and Nelson toward a squadrol, he asked them what they were doing. They replied that they had come from Missouri; that they were broke and needed money to get home on, so they had wanted to rob someone. Jackson said further that he and Nelson had met Hammond and told him they were in dire need of funds, and that thereupon Hammond had suggested, “If you want to go along with me, we’ll hit the street and see if we can find some mope to stick up.”

His testimony was otherwise substantially the same as O’Brien’s pertaining to the alleged confession of Jackson at the police station outside the presence of Hammond. Additionally, according to Kodatt, Jackson stated that when defendants had spotted O’Brien, Hammond had instructed the other two. to walk ahead and he would do the talking.

When Hammond was brought into the room with co-defendants, he (Kodatt) asked Nelson and Jackson, “Is this your accomplice?” Nelson remained mute, but Jackson responded that Hammond “was the man that suggested that we rob this fellow.” When Hammond was questioned, he stated that he was only trying to help O’Brien.

Police Officer James Peebles, for the State:

The pertinent parts of his testimony are substantially the same as Officer Kodatt’s, with the important exceptions that he could not see the incident in question, and he did not testify to having heard Kodatt ask Nelson and Jackson, in Hammond’s presence, if the latter had been their accomplice.

George Hammond, defendant, on his own behalf:

He is 27 years old, married and the father of two children, and has been employed as a punch press operator for the last five years by International Harvester. He also is a landlord of the building he owns which houses two tenants. On September 20, 1963, he had received his pay from work and had also collected rent.

That evening, he left home to have a drink with a friend, L. C. Melchor. After having a few drinks, he was walking toward his car to go home when he saw Officer O’Brien standing on the corner, with a large cowboy hat on, weaving as if he were drunk. Standing near him were the two codefendants and another fellow who soon proceeded down the street past O’Brien. Hammond watched this, then passed by O’Brien and said, “For a moment there, I thought those fellows was trying to rob you.” O’Brien then pulled a gun and told the witness to put his hands up. The witness was then hit from behind and fell, whereupon someone started kicking him. He jumped up and tried to run, but was apprehended.

He testified that he had never seen Nelson and Jackson before that night, and that he did not struggle with O’Brien, nor had he ever seen the knife admitted into evidence. All three defendants were “worked over” in the police station, but what he told the police at that time was the same as the testimony he gave in court. He did not recall that Jackson had made the alleged statements at the police station or in the squadrol, or that Nelson and Jackson had told him they needed money to go to Missouri.

Nancy Bridges, for the defense:

She had known the defendant since 1942 when he lived near her, and attested to his good reputation in the community for being an honest, truthful and law-abiding citizen.

Annetta Eckles, for the defense:

She lives next door to defendant and had known him a little over a year, and attested to his good reputation in the community for being an honest, truthful and law-abiding citizen.

Ruth Hammond, for the defense:

She is defendant’s wife, and stated that he has never carried nor owned a knife during their marriage.

Freddie M. Brown, for the defense:

She is defendant’s mother, and had never seen him carry a knife.

Roscoe Nelson, on his own behalf:

He was 17 years old at the time in question, and was at 63rd Place and Union with Jackson and another man whose name he didn’t know. The unknown man left, and Jackson and the witness walked past O’Brien, who was “staggering like he was drunk,” and past Hammond, who was further down the street. When they got to the corner, he heard O’Brien scream, and he turned around to see O’Brien with a gun pointed at Hammond. Rather than become involved, he and Jackson left the scene and became separated. Later, he was arrested and put in the police wagon with Hammond and Jackson.

Witness denied making any confession, and denied that Jackson had made any confession or admission in his presence. He told the police he didn’t even know Hammond. (There was no evidence that Nelson and Jackson, who were friends, had ever seen Hammond before, or vice versa.)

Hezekiah Jackson, on his own behalf:

As to the incident in question, his testimony was substantially similar to Nelson’s except that he was arrested first and led the police to the place where Nelson was staying.

He denied making the statements attributed to him by the officers. He was asked to confess, but told the police he knew nothing to tell them. He was 20 years old at the time.

OPINION

Defendant Hammond contends that multiple trial situations such as this case involving the trial of three persons accused of the same crime, represented by the same attorney, must be treated with extreme caution to insure the protection of each defendant’s rights, particularly where, as here, there was testimony concerning an alleged oral confession by a codefendant. We agree with this principle. The trial court must be aware of the peculiar problems of the case and be prepared to prevent the occurrence of harmful error. The case at bar therefore requires careful analysis of the record to determine whether the conduct of the trial resulted in such error.

Officer O’Brien testified that the defendant Jackson inculpated defendant by making an oral confession. Defense counsel objected to this testimony on the ground that Hammond had not been present at the time. The objection was overruled. The trial judge, however, orally admonished the jury that this testimony was to be disregarded as to Hammond. O’Brien also stated that Hammond subsequently came into the room with the other defendants and was then confronted with the confession. Hammond denied his participation in any crime, stating that he was only trying to protect O’Brien whom he thought was being robbed.

O’Brien’s testimony pertaining to the alleged confession was partially corroborated by the testimony of Officers Kodatt and Peebles. Their testimony was also duly objected to by defense counsel and the same oral cautionary instructions were given. This procedure would have followed generally the law as set out in Delli Paoli v. United States, 352 US 232, and a line of Illinois cases (see People v. White, 28 Ill2d 23, 26, 190 NE2d 817; and People v. Carver, 77 Ill App2d 247, 257-259, 222 NE2d 17); however, the rule of those cases was reversed in Bruton v. United States, 391 US 123.

Bruton involved a situation in which a codefendant’s extrajudicial confession inculpating the defendant was admitted over objection. Despite both an oral admonition and a written cautionary instruction, this was held to violate the defendant’s sixth-amendment right to confront witnesses against him. The Supreme Court stated at page 137:

Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all.

The State attempts to distinguish Bruton on the ground that here the alleged confessor (Jackson) took the witness stand in his own behalf (permitting confrontation), whereas in Bruton he did not. We consider that this distinction does not cure the basic problem because in the instant case we must also concern ourselves with the fact that in his testimony Jackson denied having made the alleged inculpatory statements, thus, for all practical purposes, precluding defendant’s right of cross-examination. This conclusion was reached in People v. Scott, 100 Ill App2d 473, 241 NE2d 579, where it was said at page 479:

The fact that Walker took the stand and that Scott had an opportunity to cross-examine him did not mitigate the error. Walker denied making the incriminating statement; confrontation was therefore meaningless and cross-examination would have been futile.

The United States Supreme Court, in Douglas v. Alabama, 380 US 415, discussed this precise point in a case where an accomplice, found guilty in a separate proceeding, testified at defendant’s trial and invoked the privilege against self-incrimination when questioned about his alleged confession. The prosecutor was permitted to read statements from the alleged document of confession that inculpated defendant. The court held this to be prejudicial, saying at pages 419 and 420, that the “[accomplice] could not be cross-examined on a statement imputed to but not admitted by him” and “hence, effective confrontation of [the accomplice] was possible only if [the accomplice] affirmed the statement as his.” Any effective confrontation of Jackson in the instant case was precluded by virtue of this same reasoning, and the admission of his alleged confession inculpating defendant was prejudicial error.

While Bruton involved a prosecution under federal rules, it was later held that its doctrine should be applied to State prosecutions, and retroactively. Roberts v. Russell, 392 US 293. Since then, the Illinois Supreme Court has been faced with this issue in several cases.

People v. Armstrong, 41 Ill2d 390, 243 NE2d 825, held, relying upon Bruton, that defendant’s conviction should be reversed and the cause remanded, since his constitutional right of cross-examination had been denied. In spite of cautionary instructions, the inculpating confessions of two codefendants which were admitted into evidence were found to have been prejudicial to the defendant.

Two recent cases treating with a different factual situation resulted in affirmance when the court decided that application of the Bruton rationale was not appropriate. The distinction between those cases and the one now before us is that there the defendant himself in each case had made admissions which were substantially similar to the codefendant’s alleged accusatory admission. In People v. Rosochacki, 41 Ill2d 483, 244 NE2d 136, the court stated at page 494:

It is clear to us that a very substantial difference exists between a case in which a jury hears a codefendant’s statement incriminating a defendant who has himself made similar inculpatory admissions, and the Bruton-type case in which the codefendant’s statement is used against a defendant who has made no admissions. In the former case the prejudice to the defendant, if any, is minimal, and entirely insufficient to necessitate retrial, particularly where, as here, defendant’s guilt seems clear.

Accord, People v. Rhodes, 41 Ill2d 494, 244 NE2d 145.

In our opinion, however, the instant case is the type in which substantial prejudice did result to the defendant as a consequence of the introduction into evidence of the inculpatory confession or admission attributed to a codefendant. Defendant Hammond made no similar admission, consistently denying participation in the crime, and the codefendants, in their testimony at trial, denied making the alleged admissions themselves and did not accuse Hammond. At this point in our consideration we believe, therefore, that the questioned testimony of Officer O’Brien was sufficiently prejudicial to require reversal of defendant’s conviction and remandment of the cause for a new trial.

In arguing against this conclusion, the State relies heavily upon People v. Somerville, 42 Ill2d 1, 245 NE2d 461. While the issue in Somerville concerned the competency of trial counsel (whereas we are concerned with admissibility of evidence) and, further, arose under a post-conviction petition (whereas this is a direct appeal from the trial court), there are other basic grounds on which Somerville may be distinguished. In that case an accomplice, who was not being tried with the defendants, testified about his own extrajudicial statement implicating all three defendants — two Somervilles and Langusch. (Unlike the instant case, there was no objection by defense counsel to the admissibility of Arnold’s statement.) The court pointed out, therefore, that the defendants “were not subjected to the risk of extrajudicial inculpating statements of a codefendant, ... as involved in Bruton.” Contrariwise, the instant facts did result in such a risk to defendant Hammond, thereby invoking the safeguards embodied in Bruton.

The Bruton court, in discussing the harmful effects of incriminating extrajudicial statements despite cautionary instructions, pointed to the “practical and human limitations of the jury system.” It mentioned that there exist contexts in which the risk is great that the jury may not follow instructions, and continued at pages 135-6:

Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others.* [Footnote omitted.] The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.

There were no “powerfully incriminating extrajudicial statements” of a codefendant in Somerville as there are in the case before this court. As mentioned, the statement in Somerville was introduced through the testimony of an accomplice who had himself made the out-of-court statement and who at the trial persisted in his accusation of the defendants. Importantly, the court said that the extrajudicial statement added nothing to the testimony of the accomplice who also admitted that he hoped for leniency in return for his testimony. This is a far different situation from ours in which a police officer testifies to a codefendant’s extrajudicial confession. Since an officer’s testimony is not tainted with the suspicion attaching to that of an accomplice, it is certain to be much more damaging and prejudicial to a defendant.

Further, in Somerville, the accomplice was apparently an eyewitness, whereas Officer O’Brien’s testimony was hearsay vis-a-vis Hammond. The reason for the general exception to the hearsay rule in this situation (the probability of the truth of a confession as against the one making it) would not apply to an inculpatory statement against a third person such as Hammond. The situation in Somerville concerning the accomplice was altogether different.

Having decided that the codefendants’ statements should not have been admitted, we look next at defendant’s contention that the State failed to prove its case beyond a reasonable doubt, because if that were so, then outright reversal would be required. People v. Brown, 99 Ill App2d 281, 241 NE2d 653. The State’s evidence as to the occurrence itself rests solely on the testimony of Officer O’Brien, since the other officers, though apparently stationed in their car for the purpose of observing, testified that they did not see Hammond attack O’Brien. Officer Kodatt only saw Hammond approach him, whereas he saw two other persons approach O’Brien and swing at him. Even though Officer Peebles was sitting in the same car with Kodatt (and apparently for the same purpose), he testified that the entire incident was out of his view. Without more, O’Brien’s testimony is indeed weak, and hardly meets the quantum of proof necessary for a criminal conviction. The actual sequence of events immediately before and during the alleged robbery attempt is not altogether plausible as related by O’Brien. The knife which he allegedly found at the scene was preserved as evidentiary information in a most unorthodox way and contrary to accepted police standards. The presence of O’Brien’s initials on the knife raises an additional question in this regard. Furthermore, we consider it important that, as outlined above, no essential part of O’Brien’s testimony was corroborated by his partners who were obviously assisting him on a joint assignment of some sort.

The only other testimony is that of the three defendants. Hammond denied any complicity in the attempted robbery, and neither Nelson nor Jackson implicated him at the trial. Absent the alleged confession of Jackson, the State’s evidence is so unsatisfactory as to leave in the court’s mind a reasonable doubt as to the guilt of the defendant, and it therefore becomes our duty to reverse the judgment of the Circuit Court. People v. Anderson, 30 Ill2d 413, 197 NE2d 24. The rule of Harrington v. California, 393 US 949, does not control this situation.

In view of the conclusion reached, the other points raised by defendant need not be considered.

Reversed.

DRUCKER, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Freddie Adams, Defendant-Appellant.
    Gen. No. 52,752.
    First District, Fourth Division.
    October 8, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a conviction, after a jury trial, of the offenses of rape and robbery. Judgments were entered and the defendant was sentenced on the rape count for not less than ten nor more than fifteen years and on the robbery count for not less than five nor more than ten years, the sentences to run concurrently. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) that since his identification by the complaining witness was doubtful, vague and weak, his alibi evidence should not have been disregarded.

Testimony of Wynice Thomas, Complaining Witness:

She is married and lives at 4023 West Polk. On June 10, 1966, at approximately 9:00 p. m., she drove to the home of her husband’s cousin to visit a sister-in-law. The prosecutrix, her sister-in-law, and her cousin then drove to a tavern and had a beer. They left and drove to another tavern near Pulaski and Lexington. They each had another beer and then drove back to the cousin’s house and sat in the car and talked. About 2:00 a. m. the prosecutrix drove home after stopping for some barbecue and parked the car in front of her house. She got out of the car and a man approached her from the rear and asked for money. She said she had about $50 from work and handed him her purse which he refused to touch. He told her to get the money out and give it to him.

The man was wearing work clothes with a dark, waist-type jacket and a cap. She gave him the money and asked him what else he was going to do to her. She was told to shut up. She asked the man not to harm her but he again told her to shut up. The man had her by the arm and kept the other hand in his jacket pocket as if he had something. He walked her across the alley from her house and through a gangway to the back of some stairs. He told her to undress and lie on the ground. She did as she was told. All this time he had his hand in his jacket pocket. The man then got on top of her, put his hand over her eyes, and had intercourse.

When he finished he told her to stay there until he left. After a couple of minutes she got up, walked across to her house and rang the doorbell. She was crying and nervous. However, when she first walked in, she did not say anything to her husband. She had the barbecue and her undergarments in her hands. As she was walking towards the bathroom she put the barbecue on the table. The first time she said anything to her husband was when he asked her what was wrong. She told him she had been raped and robbed. She then went into the bathroom and took a douche.

Later that night she went to the hospital. She was with the defendant for approximately thirty to forty minutes and identified him in court.

About two weeks after the attack she identified the defendant in a lineup consisting of four men, all Negroes, of different weights and heights.

There are no streetlights in front of or directly across from her house. The only lights are at either end of the block near the corners. She did not see the man come up behind her and could not recall which hand he used to grab hold of her arm or take her money. She did not yell for help at any time. The man did not rip any of her clothes nor did he strike her. She suffered no cuts or lacerations. The man had one hand over both of her eyes but she did not know where the other hand was. She was not held down.

On June 12,1966, she picked out a photo of the defendant at police headquarters. She said it was similar— looked something like the man. When asked by the defense if she couldn’t be sure if the photo of the defendant was the man, she answered, “That’s correct.”

On June 28, 1966, a police officer came to her home and showed her a single photograph of the defendant. He told her the man in the photo was in the lineup. She was then driven down to the Maxwell Street Station where approximately three or four hours after viewing the single photograph of the defendant she viewed a lineup. She recognized and identified the defendant.

The complaining witness testified that the photograph she was shown on June 12,1966, and the one shown to her on June 28, 1966, were not the same. When she saw the single photograph of the defendant on June 28, 1966, she was not shown the earlier picture. When asked if the man in the two photos was the same she answered, “It was a good resemblance.”

Testimony of Willie Thomas, called by the State:

He is the husband of Wynice Thomas. On June 11,1966, at approximately 3:00 a. m. he was home with his children. He heard the doorbell ring and let his wife in. She was crying and he asked her what was wrong. She said, “I got raped and robbed!” She was carrying her girdle in her hand. She went to the bathroom to take a douche while he called the police. His wife had left home about 8:30 or 9:00 p. m., later came back, and then left again.

Upon cross-examination he stated that his wife went out at 1:30 or 2:00 a. m. on June 11 and drove over to his aunt’s house. His wife had picked up his sister and Georgia Lee, his cousin, about 9:00. They returned to his house about 12:00 and left again about an hour and a half later. His wife did not tell him she was going to stop at Lexington and Pulaski but only asked if she could bring him some food. There had been no drinking at his house.

At a prior hearing held on November 3, 1966, the witness testified that his sister had called his wife so that that she could be picked up. However, at trial the witness stated that he made a mistake in that his sister did not call for his wife to come and get her. Mr. Thomas also testified at the previous hearing that his sister came over at 11:00, but at the trial he stated she arrived at 12:00 or 12:30.

He stated that his wife’s coat was dirty when she came home and that she had “gloves in her hand.”

Testimony of Thomas Keevers, called by the State:

He is a detective assigned to the Homicide and Sex Section of the Chicago Police Department. He was present at the lineup where the defendant was identified. Three Negro police officers dressed in plain clothes participated in the lineup along with the defendant. All were of various heights and weights.

Upon inspection of the premises where the rape took place Officer Keevers found small impressions in the dirt made by woman’s high heels. On the evening of June 10 Mrs. Thomas was wearing high heeled shoes. The witness did not know when these impressions were put into the ground.

Testimony of Doctor Ronald Tosto (by stipulation):

Doctor Tosto is a resident doctor at Cook County Hospital and examined Mrs. Thomas on June 11, 1966, at approximately 4:45 a. m. He performed a microscopic examination of the contents of a vaginal smear which proved negative for the presence of sperm. The vaginal area showed no sign of laceration or presence of trauma.

Testimony of George Anderson, called by the defense:

He lives at 1247 South Pulaski with his wife and children. He is a carpenter employed by Commonwealth Builders. He has known defendant for four years.

The defendant came by his home about 6:00 p. m. on June 10, 1966, to go to Northlake with him. The witness left about 9:00 with his wife Rose, Adams and Willie Davis. They drove to 43rd and Michigan to put racing tires on the car and arrived at Crosby Standard at 10:00 or 10:30 p. m. The tires were changed and they waited for John Wesley Brown to finish work.

At 11:00 George, Rose, Willie, John and the defendant drove to a bowling alley in Northlake, Illinois. They arrived at 12:00 or 12:30 a. m. The witness then left to drag race while John, Willie, Rose and the defendant remained behind. The witness later returned to the bowling alley at 1:00 or 1:30 and then drove back to Chicago with John, Rose, Willie and the defendant, arriving at Cooper’s Lounge, located at 16th and Kostner, at approximately 2:30 a. m.

The witness further testified that they all left the lounge close to 3:00 and drove to Kostner and Ogden to drag race. He had about fifteen races with Henry Moore and finished about 5:30 in the morning. Defendant was not out of witness’ sight except when witness left the bowling alley in Northlake and when he was drag racing with Moore.

Testimony of Rose Anderson, called by the defense:

She is the wife of George Anderson and lives with him and their children. She has known the defendant for four years and considers him a good friend. Her testimony substantiates that of her husband except that the defendant never left her presence from the time they left her home at 6:00 or 6:30 p. m. to 5:00 or 5:30 a. m. on June 11, 1966, when John, Willie and the defendant dropped her off at her home.

Testimony of John Wesley Brown, called by the defense:

He lives at 4417 West Lexington. He has known defendant for four years. On June 10, 1966, he was working at Crosby Standard when the defendant, Hank Moore, Willie Davis and George and Rose Anderson drove in around 10:30 p. m.

The witness then testified in substance to the same events as described by George and Rose Anderson. He corroborated their statements that the defendant was with them at all times and places mentioned between the hours of 10:30 p. m. June 10, 1966, and 5:30 a. m. on June 11,1966.

OPINION

The defendant contends that he was not proven guilty beyond a reasonable doubt because the testimony of the prosecutrix was not clear and convincing and lacked adequate corroboration, and because the testimony of defendant’s alibi witnesses had been disregarded even though the complaining witness’ identification was doubtful, vague and uncertain.

Our Supreme Court has held that the testimony of a prosecutrix, uncorroborated by other witnesses, may be sufficient to justify a conviction if her testimony is clear and convincing. People v. White, 26 Ill2d 199, 186 NE2d 351; People v. Szybeko, 24 Ill2d 335, 181 NE2d 176; and People v. DeFrates, 395 Ill 439, 70 NE2d 591. However, it is also well settled that where prosecutrix’s testimony is not of such clear and convincing character, and the defendant denies the charge, her testimony should be corroborated by other facts or evidence in the case. People v. Faulisi, 25 Ill2d 457, 185 NE2d 211; People v. Hiller, 7 Ill2d 465, 131 NE2d 25.

Based upon the record before us, we do not believe that the testimony of the complaining witness, by itself, is sufficiently clear and convincing to sustain defendant’s conviction of rape. Several elements tend to weaken the probative force of her testimony. A conviction for rape can only be sustained if the victim’s will to resist has been overborne, and satisfactory evidence must be introduced to demonstrate that the act was against her will. People v. DeFrates, 33 Ill2d 190, 210 NE2d 467; People v. Elder, 25 Ill2d 612, 186 NE2d 27. The issue must be determined by all the facts and circumstances in each particular case. People v. Flowers, 98 Ill App2d 289, 240 NE2d 761. In the instant case the complaining witness made no outcry nor did she call for help during the entire encounter with her attacker. The State seeks to justify this failure by stating that it would have been futile for her to yell or scream as she feared for her life. In support of this contention the State cites People v. Elder, supra, wherein the complaining witness was accosted by a man who had his right hand in his jacket pocket as though he were concealing a weapon. However, while the defendant Elder lay on the ground, the complaining witness was able to struggle free and escape, and she ran screaming for help making an immediate complaint to the first person she found.

In the case before us Mrs. Thomas testified that she undressed herself, lay down and that the defendant then put one of his hands over her eyes but she did not know what he did with the other. She also stated that the defendant did not hold her down. In addition, she did not run screaming from the scene of the alleged rape complaining to the first person she saw. Instead, she got up, put on her coat, picked up her undergarments, gloves and barbecue food and went home. At no time did she make an outcry for help nor did she try to escape. Thus, from the evidence presented, it appears that she was not gripped or paralyzed by fear as would have made any acts of resistance useless or foolhardy, and the Elder decision is not controlling. People v. DeFrates, 33 Ill2d 190, 194, 210 NE2d 467.

We note that the doctor’s examination of complaining witness showed no sign of laceration or presence of trauma.

The record also does not show that the complaining witness spontaneously or voluntarily complained of the attack upon her. When her husband answered the door she made no statement to him but rather walked over to a table and set the food down. She made no mention of the attack upon her until asked by her husband what was wrong. This failure to make a timely complaint further weakens complainant’s testimony. Therefore, considering the record as a whole, we are of the opinion that the testimony of the complaining witness was not sufficiently clear and convincing to lead to a conviction and thus required corroboration by some other fact, evidence or testimony.

We do no believe that the State introduced sufficient corroborative testimony to lead to an abiding conviction of guilt. In People v. Szybeko, 24 I112d 335, 339, 181 NE2d 176, the court said:

Evidence that the prosecutrix made a complaint soon after the commission of the offense is indeed accepted for the purpose of corroborating her testimony, but to be admissible and to have corroborative value, the complaint must have been made voluntarily and not in response to questions and answers, and must have been a spontaneous outburst or expression of the prosecutrix’s outraged feelings, rather than a mere recital of past events. (People v. Cappalla, 324 Ill 11; People v. Romano, 306 Ill 502.)

In support of its contention that the complaining witness’ declaration to her husband was spontaneous, the State cites People v. Damen, 28 Ill2d 464, 193 NE2d 25, wherein a police officer first asked the prosecutrix “what happened?” and she then stated she had been raped. As the court stated at page 472, “The fact that the officer asked complainant ‘what happened’ is, we believe, insufficient to destroy its spontaneity. People v. Harrison, 25 Ill2d 407.”

However, in the Damen case a police officer testified that the complainant was bleeding from the head, breast and back when he first arrived and inquired as to “what happened ?” In the instant case, no such situation exists. Mrs. Thomas suffered no cuts or bruises nor was she struck by the defendant. After the alleged attack she put on her coat, gathered together her undergarments and barbecue food and went home. She made no immediate complaint to her husband when she first entered but rather put the food on a table and walked towards the bathroom. Only after being asked by her husband what was wrong did she state that she had been robbed and raped. Thus from the physical condition of the complaining witness and her conduct when she first saw her husband, we cannot say that she made a spontaneous declaration of outraged feelings at the first opportunity, and the Damen case cannot be relied upon by the State to prove the spontaneity of her declaration.

The State also urges as corroborative testimony the fact that upon inspection of the rape scene Officer Keevers found small impressions in the dirt which had been made by high heeled shoes. The complaining witness had been wearing such shoes the evening of June 10, 1966. This testimony was weakened when Officer Keevers admitted that he did not know when the impressions were made and no testimony was elicited from the complaining witness stating that she wore high heeled shoes the morning of June 11,1966.

Furthermore, the defendant contends that his identification by the complaining witness was doubtful, vague and uncertain while his alibi evidence was positive and unimpeached. In People v. Gardner, 35 Ill2d 564, 571, 221 NE2d 232, the court stated:

Although it is true that the testimony of a single witness, if it is positive and the witness credible, is sufficient to convict even though it is contradicted by the accused, (People v. Pride, 16 Ill2d 82; People v. Renallo, 410 Ill 372; People v. Guido, 52 Ill2d 204, 208-09,) in this case the identification of the defendant by the complaining witness was weakened by several factors, while the defendant’s alibi was positive and unimpeached.

In the instant case the testimony of the complaining witness as to defendant’s identity is not clear, convincing and positive. She testified that the defendant came up from behind her in the middle of the block, where no streetlights are used, asked for money and then walked her across an alley and through a gangway to the back of a house and that during the time of intercourse the defendant had one of his hands over her eyes. However, no testimony was introduced by the State showing whether the alley or the gangway was lighted, or if the complaining witness ever had a full, front, well-lighted view of the defendant. In addition, the complaining witness did not make a clear and positive identification of the defendant from the photographs she was shown on June 12, 1966, just one day after the alleged rape and robbery. She stated that the photograph she picked out was similar— looked something like the man who attacked her, but she was not sure. When she was shown the single good-sized photograph of the defendant on June 28, 1966, she was not shown the earlier photograph of June 12, 1966. She testified that the two pictures were not the same and, when asked if the man in each picture was the same, she stated, “It was a good resemblance.” After viewing the single photograph of the defendant on June 28, 1966, the complaining witness was taken to the Maxwell Street Police Station to view a lineup. This lineup was held approximately three or four hours after the time she was shown the single photo of the defendant, and the same police officer who drove the complaining witness down to see the lineup stated that the man in the photo was Mr. Adams and that “the man in the lineup was the man in the photo.”

For these reasons we believe that the identification of the defendant by the complaining witness was vague, uncertain and weak, and highly suggestive.

The defense offered the testimony of three alibi witnesses. Two of these witnesses stated that they were with the defendant the entire evening of June 10, 1966, and early morning hours of June 11,1966, when the crime allegedly occurred. The State did not impeach these witnesses nor did it introduce any testimony which denied or refuted their statements. As the court stated in People v. Gooden, 403 Ill 455, 461, 86 NE2d 198:

Evidence of an alibi cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime charged, and while the identification and whereabouts of the defendant when the crime was committed are questions for the jury, yet where, from the entire record, there is a reasonable doubt of the guilt of the defendant because of the uncertainty of identification, the conviction cannot stand. (People v. Ricili, 400 Ill 309; People v. Burr, 356 Ill 452; People v. McPheron, 354 Ill 381; People v. Steinbuch, 306 Ill 441.)

After a careful examination of all the evidence, we do not believe that defendant’s guilt was proven beyond a reasonable doubt. We therefore reverse the judgment.

Reversed.

ENGLISH and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frederick Piesen, Defendant-Appellant.
    Gen. No. 52,878.
    First District, Fourth Division.
    October 8, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    No brief for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Burglary. Ill Rev Stats (1965), c 38, § 19-1.

JUDGMENT

After a bench trial, defendant was found guilty of burglary and sentenced to a term of 2 to 8 years.

POINTS RAISED ON APPEAL

(1) Defendant did not knowingly waive his right to a jury trial.

(2) As a result of intoxication, defendant, at the time of the commission of the offense, did not possess the requisite intent to commit burglary.

EVIDENCE

Manuel Robles, for the State:

On the evening of September 3, 1967, he was asleep in his home when he was awakened by the sound of change (coins). He looked up to see the defendant standing next to his bed with witness’ pants in defendant’s hands. Defendant immediately ran, but he grabbed him and yelled for help. His brother and sister-in-law, who live in the same building, came to his aid. He smelled alcohol on defendant’s breath, but defendant wasn’t drunk.

Adeline Robles, for the State:

She was awakened at 11:20 p. m. when she heard her brother-in-law yelling for help. Her husband turned on the light and she saw defendant, who was struggling to get away, being held by her brother-in-law. When the police came, defendant walked into the kitchen where police questioned him.

She was four or five feet from defendant, but did not smell any alcohol on his breath. While they were waiting for the police, defendant pleaded with her brother-in-law to let him go, since he had only attempted to get some money for his baby.

Martin Robles, for the State:

He smelled liquor on defendant’s breath, but he wasn’t drunk.

Andrew Giacalone, for the State:

He is a police officer and was assigned to cover the incident in question. When he arrived, two officers were already present, holding defendant. He observed that the door was open and the kitchen window was broken.

Defendant had an odor of alcohol, but appeared to witness to walk “all right,” “like any normal person would walk,” and responded coherently when questioned by witness.

Defendant, on his own behalf:

During the day and a half prior to the occurrence in question, he had consumed much wine, beer and whiskey, in addition to receiving a shot of morphine. Later that evening, someone had attempted to rob him in an alley and he struggled to get away, running to three different houses seeking help. He knocked on the Robles’ door but no one answered, so he tried the doorknob and walked in. He bumped into a chair, knocking some pants onto the floor, and, when he picked them up to replace them, Manuel Robles awakened.

He didn’t enter to commit a theft. He was terribly drunk, and stumbled to the floor when he was trying to escape from Robles. He denied telling anyone that he had been trying to get money for his baby.

OPINION

Defendant’s first contention is that he did not understandingly waive his constitutional right to trial by jury, as codified in Ill Rev Stats (1967), c 38, § 103-6. When the case-was called for trial, defendant and his attorney (Asst. Public Defender Toole) were present in court. The following colloquy took place:

MR. TOOLE: “Mr. Piesen wants a bench trial, Judge.”
THE COURT: “Is that correct ?”
THE DEFENDANT: “Yes.”
THE COURT: “You understand that you have a right to a jury trial, Mr. Piesen?”
THE DEFENDANT: “Yes.”
THE COURT: “You are waiving that right, sir, and you wish to be tried by this court ?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “Will you please indicate that by signing a jury waiver?”
MR. TOOLE: “For the record I am tendering to the court a jury waiver signed by Mr. Piesen.”

Thus, the trial judge had directed the question of jury waiver to defendant himself, after his attorney had made a request for waiver. Defendant responded to the court, both orally and in writing, that he wished to waive his right to a jury trial.

It is the trial judge’s responsibility to insure that the waiver of a jury trial is knowingly and understandingly made. E. g., People v. Wesley, 30 Ill2d 131, 195 NE2d 708. Whether a waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining the issue. People v. Palmer, 27 Ill2d 311, 189 NE2d 265. Here, the judge received affirmative responses to his direct questions concerning waiver. We believe that the circumstances surrounding the waiver in this case demonstrate that it was knowingly made.

Defendant cites several cases in his brief for the proposition that some explanation concerning the nature of a jury trial should be conveyed to a defendant before he can be said to waive his right knowingly, citing People v. Turner, 80 Ill App2d 146, 225 NE2d 65; and People v. Bell, 104 Ill App2d 479, 244 NE2d 321. Both of these cases are factually distinguishable, and do not alter our conclusion that the record in the instant case shows that the jury waiver was made knowingly.

Defendant’s second contention is that at the time of the commission of the offense, he did not possess the requisite intent to commit burglary. We have reviewed defendant’s account of his lengthy drinking escapade preceding his entry into the Robles’ home. We also note the reports of two doctors from the Behaviour Clinic which indicate that defendant (who was 38 years of age at the time), had been drinking since age 10 and to excess since age 22.

This evidence must be evaluated in light of the statutory provision concerning criminal responsibility, contained in Ill Rev Stats (1967), c 38, § 6-3, which is as follows:

A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition . . . :
(a) Negatives the existence of a mental state which is an element of the offense . . .

The offense of burglary, as pertinent to the instant case, requires a knowing entry with intent to commit theft. Defendant’s claim is that his excess consumption of alcohol and the injection of morphine negatived the requisite mental state.

The trial court explicitly rejected defendant’s contention by stating in an oral opinion immediately before rendering his decision:

I would point out that the defendant’s precise recollection of the incident would certainly not indicate any mental state that would negate the necessary mental condition. I would note, also, that the actions of the defendant in running away and pleading to be let go at the particular time would belie the suggestion of an involuntary action or irresistible impulse caused by intoxication or otherwise.

We concur in this rationale. Even though defendant had been drinking, all the witnesses who came in contact with him that evening testified either that he was not drunk or that he conducted himself as a normal person would. These opinions are corroborated by defendant’s own testimony, which was lucid with respect to the sequence of events during the evening in question. Defendant’s intoxication was not “so extreme as to suspend entirely the power of reason and render the accused incapable of any mental action.” People v. Winters, 29 Ill2d 74,193 NE2d 809. We find, therefore, that defendant did possess the requisite intent to commit the burglary, and his conviction is accordingly affirmed.

Affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.

       We take notice also of the stipulation in evidence as to defendant’s prior criminal record which is sufficiently lengthy to indicate that he was very probably not ignorant of judicial procedures. His convictions were:
      1949, three counts of burglary, plea of guilty, sentence of 1 to 2 years.
      1952, two counts of burglary, plea of guilty, sentence of 1 to 5 years.
      1956, larceny, sentence of 1 year.
      1958, larceny, sentence of 6 months.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Emily Kapustka, Defendant-Appellant.
    Gen. No. 53,124.
    First District, Fourth Division.
    October 8, 1969.

      J. Edward Jones, of Blue Island, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Criminal damage to property. Ill Rev Stats (1967), c 38, § 21-1 (a).

JUDGMENT

After a bench trial, defendant was found guilty and sentenced to 10 days in the House of Correction and one year’s probation.

POINTS RAISED ON APPEAL

(1) There were numerous trial errors, including: a misstatement of the evidence by the State’s Attorney, and the improper introduction of evidence designed to impeach an alibi witness.

(2) The evidence was insufficient to support the decision by the trial court.

(3) Defendant was not accorded a fair and proper hearing in aggravation and mitigation.

EVIDENCE

Mrs. Delores Evers, for the State:

At approximately 10:00 p. m., on July 30,1967, she took her dog out for a walk, heading toward the back of the yard at her home in Blue Island, Illinois. The dog ran to the back of the lot and witness followed, shining her flashlight. She saw defendant from three feet away, throwing black paint from a can onto the door of the Evers’ garage. She had known defendant since 1963 and seen her on more than 10 occasions. When the light shone on defendant, she stopped, and each one looked at the other. Witness asked her, “What the hell are you doing behind my garage?” Defendant then ran down the alley to get away.

Emily Kapustka, on her own behalf:

At 10:00 p. m., on the evening in question, she was in Bangor, Michigan, 125 miles from Chicago, and didn’t return to Harvey, Illinois (near Blue Island) until 1:30 a. m.

Helen Palchek, for defendant:

She is a friend of defendant and was with defendant in Bangor, Michigan the weekend of July 30, 1967. They didn’t leave there until 10:30 that evening. She often takes girl friends to Bangor, as often as 25 times a year.

Debbie Kay Kapustka:

The 13-year-old daughter of defendant, she remembered that on some weekend in July her mother went to Michigan with Mrs. Palchek.

OPINION

Defendant contends that the prosecuting attorney misstated evidence, in closing argument, to the effect that the alibi witness (Helen Palchek) “can’t remember the times she went up there” and “does not represent the type of credible alibi witness that would be required for the Court to give any credence to.” We find from a review of the record that some degree of confusion did exist in the witness’ mind. Further, the statement was in no way prejudicial to defendant as reflected in the court’s appraisal of the relevant evidence:

We have the witness, Helen Palchek, that testified they were up there on a particular weekend in Michigan, but returned on . . . Monday morning at 1:30

Defendant’s additional contention that the State attempted to impeach the same witness’ testimony by reference to collateral matters is not substantiated. An objection to the line of questioning complained of was sustained.

The trial judge, being the trier of fact, was in the best position to weigh the testimony and evaluate the credibility of the witnesses. His determination in these matters will not be set aside merely because the testimony is conflicting. We find that the testimony of the State’s witness was adequate, if believed, to justify the judgment.

Defendant’s final contention that she was not accorded a fair and proper hearing in aggravation and mitigation because certain evidence was improperly admitted and resulted in prejudice to defendant, is also untenable. The pertinent statute, Ill Rev Stats (1967), c 38, § 1-7 (g) provides:

For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.

It was clearly within the scope of the hearing contemplated by this statute that the court was advised of defendant’s record of past harassment and other property damage, along with the court psychiatrist’s report. This was proper, pertinent evidence. The breadth of admissible information in such hearings was discussed in People v. Mann, 27 Ill2d 135, at page 139,188 NE2d 665:

. . . the court is not bound by the usual rules of evidence found in criminal prosecutions but may search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate the offense, including the moral character of defendant, his habits, social environment and motivations.

We find no prejudice to defendant in the hearing conducted in the instant case.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.


author: MR. JUSTICE McNAMARA

text:
    Mangel & Company, an Illinois Corporation, Plaintiff-Appellant, v. Village of Wilmette, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 53,249.
    First District, Fourth Division.
    October 8, 1969.
    Rehearing denied November 21,1969.

      ENGLISH, J., dissenting.
    Austin L. Wyman, Sr. and Panter, Nelson & Bernfield, of Chicago (Irwin Panter and Marshall D. Krolick, of counsel), for appellant.
    Robert J. Mangier, of Wilmette, for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, Mangel and Company, an Illinois Corporation, owner of certain real estate located in the Village of Wilmette, filed a declaratory judgment action against the Village, seeking a declaration that, the Village Zoning Ordinance, which classified the subject property in an R1 single-family residential category, was unconstitutional as applied to the subject property; and that plaintiff had the right to erect a 56-apartment building, a multiple-family use within the R4 residential category. On April 8, 1968, after a trial without a jury, the trial court found that the zoning ordinance was unconstitutional as applied to the subject property. The court further found that plaintiff’s request to erect a 56-unit apartment building would be denied. Plaintiff appeals from the latter portion of that decree which denied it the right to erect the 56-unit building. Defendant has not filed a cross-appeal to that portion of the decree which held that R1 zoning was unconstitutional as applied to the subject property. In fact, defendant has filed a motion, asking that this court take judicial notice that the Village, after the entry of the decree by the trial court in the instant case, has passed an ordinance rezoning the subject property R3, a low density multiple-family type use. Consequently, in this court, the propriety of holding the El use unconstitutional as applied to this property is not an issue.

Certain owners of single-family residences abutting the instant property to the east were given leave to intervene in the suit; they filed a separate answer and participated in the trial. These interveners have not filed an appearance or brief, and are in default in this court.

Subsequent to the presentation of evidence, but prior to the final decree of the trial court, plaintiff and defendant signed a stipulation and agreed that plaintiff be allowed to erect a 52-unit building on the property. When the stipulation was presented, the trial court, upon objection by the interveners, denied plaintiff’s motion for the entry of that order. Plaintiff’s motion to amend its complaint and reopen proof so that evidence could be presented with respect to a specific plan for development of a B3 commercial use zoning category for the property was also denied by the trial court.

In its appeal, plaintiff contends that the trial court erred in leaving the property unzoned and in failing to frame its decree consistent with established principles; that the trial court’s denial of permission to erect the 56-unit building was arbitrary and unreasonable; that the trial court erred in refusing to accept the stipulation between the plaintiff and defendant as to the use of the subject property for a 52-unit building; and that the trial court erred in refusing to allow plaintiff to amend its complaint and to reopen proof in order to present evidence as to a specific commercial use.

The subject property is located on the east side of Skokie Boulevard between New Glenview Road to the north and Old Glenview Road to the south. The western boundary of the property has a frontage of 432 feet on Skokie Boulevard, the eastern boundary is 400 feet, the northern boundary is 216 feet, and the southern boundary is 145 feet. The property is vacant and unimproved.

Directly south of the subject property is Mangel Florist, operated by plaintiff. Immediately east of the property is a residential development consisting of single-family residences. These homes are flush against the subject property with no alley between, and face Sunset Drive. Directly north is a vacant piece of land which runs to New Glenview Road and is zoned residential. North of New Glenview Road on Skokie Boulevard is a tract of land zoned R3 and developed with townhouses. North of the townhouses is a parking area. Directly east of the townhouses are single-family residences. Still further north at Wilmette Road are two service stations, vacant land and a drugstore. On the west side of Skokie Boulevard there is located a park, playground and a school. South of New Glenview Road is a single-family residential development with homes backed up to Skokie Boulevard, a Sinclair gas station, vacant land and a small development of stores. The southwest comer of Old Glenview Road, which is presently vacant except for an old home, runs down to the dividing line between defendant Village and the Village of Skokie. The property along the west side of Skokie Boulevard from the vacant land south has a strip commercial type of development. South of that is a major commercial development, and further down is the Old Orchard Shopping Center, containing a full complex of stores. Across the street from the shopping center on the east side of Skokie Boulevard is a cemetery. Starting from the northeast corner of Old Orchard Road and Skokie Boulevard, and coming north, there are various restaurants, a funeral home and a few other stores. To the east of these commercial enterprises, in Skokie, is an R4 area developed with condominiums and apartments.

Testimony as brought out at trial pertinent to the use of the property for a 56-unit apartment building was as follows:

John Mangel, II, testified that he was vice-president of Mangel and Company, plaintiff and owner of the property involved. The property was presently the subject matter of a contract with Ontario Contracting Company. Plaintiff was to sell the property to Ontario for the sum of $200,000 if successful in obtaining the necessary zoning to allow the erection of an apartment building. There are no R4 multiple dwellings in the immediate vicinity in Wilmette, but there are some nearby in the Village of Skokie.

Alan Friedman testified that he was secretary-treasurer of Ontario, and that he had negotiated the contract to buy this property. The R4 zoning requirements of the defendant Village would allow one apartment unit for each 1,000 square feet of land space. The subject property contained about 71,000 square feet. Ontario originally had planned to build a 71-unit building, but in an effort to compromise with defendant, was planning to erect a 56-unit building. The building would be a four-story masonry and concrete building, consisting primarily of 2 and 3 bedroom units, with 112 parking spaces. Since the subject property was flush against the lot lines of individual homes on the east, with no alley, they planned to build a stockade fence on the east line to obstruct the visibility. There would be 4 entrances or exits from the property to Skokie Boulevard.

Ralph Martin, a realtor and appraiser, testified for plaintiff that the highest and best use of the land in question would be an R4 use, considering the location and shape of the property. An R4 use would not have an adverse effect on the surrounding properties. This property, based on an R4 development, would be worth $280,000. If zoned for an R3 use, the value of the property would be $96,000. If zoned Rl, it would be worth $50,000. However an R3 use, a low density multiple-family use, would not be a desirable use for the property because more children would be living in the townhouses than in the proposed use. There is only one existing R4 development in Wilmette, several miles east of the property in question.

Ralph C. Campbell, a city planner and zoning consultant, testified for plaintiff that he was familiar with the area and the proposed use. R4 would be a proper use for the property because it is physically suited for such a use and would be compatible with adjacent uses. It would make a good transition between the commercial uses and the adjoining single-family residences. While R4 would have a detrimental effect on the adjacent single-family area, it would have less of an adverse effect than any of the proposed uses, other than Rl. An R3 use could be developed, but this would not be the highest and best use for the property. Maintenance by one owner under R4 would be better than maintenance by many owners under R3. An R3 use would call for apartment or townhouse uses that would be sold to individual families, more apt to have children, creating problems along Skokie Boulevard. Mr. Campbell stated that there was “no real true thing as spot zoning.” If a use is in conformity with the land use pattern, then it is not spot zoning.

For the defense, John Scapin, a civil engineer and director of planning, zoning and building for defendant Village, testified that he was familiar with plaintiff’s proposed construction. In his opinion, the proposed R4 use would have an adverse effect, and the best use would be an R3 development. There are no apartment buildings similar to the one proposed on Skokie Boulevard, and the only other R4 use in Wilmette is located several miles away near Lake Michigan. He was familiar with the proposed development at the time the matter was pending before the Village Zoning Board, and did not have an opinion as to its desirability at that time. The zoning board recommended to the Village Board that plaintiff’s proposed R4 development be allowed.

Carl Gardner, a city planning and zoning consultant, testified that he had been retained by defendant some eight months before to prepare a long-range comprehensive plan and an analysis and recommendation for the use of property along Skokie Boulevard. The highest and best use of the subject property would be an R3 classification. The property in question consisted of 1% acres. He would recommend a low density multiple-family type use of 12 to 18 dwelling units per acre. These would be one or two story buildings. The redistricting of the subject property for R4 would not be a suitable use. The only R4 use permitted in Wilmette was an extensive lake front acreage suitable for such a development. The particular needs of an R4 district would be an area of sufficient size to create a character of its own, and that it have accessibility from a major thoroughfare as well as extensive view, light and air. The subject property did not meet these necessary requirements. After his retention by defendant as a consultant he had made a report to the Village that an R4 classification would be the highest and best use of the property. Since then he had occasion to put in an intensive analysis of the entire situation along Skokie Boulevard. As a result he had adjusted his opinion. He now believed that the subject property did not meet the requirement of good R4 zoning.

Two of the interveners, owners of adjacent single-family residences, testified that their homes abutted the subject property. They were familiar with the proposed development, and were of the opinion that it would depreciate the value of their property because of the noise and amount of traffic.

We believe that orderly procedure requires that we first consider plaintiff’s contention that the trial court’s denial of permission to erect a 56-unit apartment building was arbitrary and unreasonable.

We agree with plaintiff that the relevant test in determining the validity of existing zoning, that the zoning is presumed valid, is inapplicable to the question of whether plaintiff should be allowed its specific use after a finding that the zoning is unconstitutional. However, plaintiff does not meet its burden merely by proving that the ordinance is void as to the property in question. Plaintiff concedes that it also has the burden of proof of showing by a preponderance of evidence that its proposed use is reasonable. We find that plaintiff has failed to meet that burden.

Where the testimony in a trial without a jury is contradictory, the weight to be given to that testimony is a matter for the trial court and its findings will not be disturbed unless manifestly against the weight of the evidence. LaSalle National Bank of Chicago v. County of Cook, 12 Ill2d 40, 145 NE2d 65 (1957). In the case at bar, both sides presented testimony that the highest and best use for the property was multiple-family residential. The only point at issue between plaintiff and defendant was one of intensity or density of use. Two witnesses testified for plaintiff that the best and highest use for the property was an R4 category. It should be noted that neither witness for plaintiff stated that a 56-unit building was the optimum use under this category, but testified only that R4 was the most desirable use. For the defense, two witnesses testified that a less intense use of the property, an R3 category, was the highest and best use of the property. Under the conflicting testimony, the trial court could properly decide that a 56-unit building was an unreasonable use.

Carl Gardner, one of the experts testifying for the defense, had, some months prior to trial, made a report that R4 would be the highest and best use of the property. At trial he testified that an R3 use would be the highest and best use. As stated previously, the question of credibility is one for the trial court, and a change of opinion by a witness does not of necessity require a rejection of his testimony. In the instant case, Gardner offered a satisfactory explanation for his change of opinion. He testified that after a concentrated study of Skokie Boulevard, he came to the conclusion that such an intense use of the property as permitted under R4 would not be desirable, since the area was not of sufficient size to create a character of its own. In the exceedingly imprecise field of zoning, a change of opinion following deeper study is not unusual.

Furthermore, the trial court was not limited by the opinion of the experts. It was entitled to look to the use of nearby property to determine whether the proposed development was reasonable. See Dixon v. County of Kane, 77 Ill App2d 338, 222 NE2d 354 (1966). And in the case at bar, the permitted uses of nearby property furnished strong additional evidence to support the trial court’s finding.

There is only one R4 use permitted in the defendant Village, and that is located at Lake Michigan, several miles to the east of the subject property. Skokie Boulevard consists of single-family residences, a nearby townhouse development, and various commercial enterprises, large and small. Single-family residences abut the property to the east, and are located across the street to the west. While there is an R4 development nearby, located in the Village of Skokie, it is significant to note that R4 development is located east of commercial uses on Skokie Boulevard, and not on Skokie Boulevard itself. Thus, plaintiff’s proposed use of the property would be of a far heavier density than other nearby uses, and would be incongruous with existing use.

While the testimony indicated that an R4 zoning would bring the highest financial return, that is only one factor to be considered in determining the reasonableness of a use. It should also be noted that while the property was worth $50,000 zoned Rl, it would have a value of almost $100,000 under an R3 zoning.

We hold that the trial court as finder of the fact was entitled to find that the proposed use of 56 units was unreasonable; to find that such a use was not consistent with surrounding uses, and that it would have a harmful effect on the surrounding property. Its denial of the proposed use was not arbitrary and unreasonable.

Plaintiff also contends that the trial court committed reversible error in leaving the property unzoned, and in not framing its decree with reference to the record before it, and particularly with reference to the evidence offered at trial, relying on Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, 167 NE2d 406 (1960).

In the Sinclair case, plaintiff petitioned the zoning board to rezone its property from single-family residential to light industrial. The trial court reversed the zoning board’s denial of that request, found the residential zoning unconstitutional as it applied to the property, and found that the plaintiff could erect the tanks for the storage and transportation of crude oil. The area in which the property was located was generally industrial, and included an airport and a lumberyard. All of the evidence indicated that the highest and best use for the subject property would be light industrial, and the defendants presented no contradictory evidence. The Supreme Court affirmed, and held that, after finding an existing zoning ordinance void as to a piece of property, the trial court should frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. See also Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323 (1966).

However, it has been repeatedly held that the Sinclair case did not give the trial court unlimited authority to rezone the properties involved in zoning litigation.

In Bredberg v. City of Wheaton, 24 Ill2d 612, 182 NE 2d 742 (1962), the Supreme Court stated at page 624:

“We may say at once that nothing in our decisions in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, and Illinois National Bank & Trust Co. v. County of Winnebago, 19 Ill2d 487 was intended to permit a trial court to constitute itself as a zoning authority .... The problem of these cases was the decree induced by evidence which depicted a proposed use in a highly favorable light and the possibility that a decree of general invalidity might thereafter permit the owner to use the property for an entirely different purpose.”

See also Reeve v. Village of Glenview, 29 Ill2d 611, 195 NE2d 188 (1963).

In Harshman v. City of DeKalb, 64 Ill App2d 347, 212 NE2d 146 (1965), the court, at p 353, stated:

“The aim of these decisions is to avoid the possibility of a rezoning of the property to some other undesirable classification and, thus, invite further litigation, and to prevent any exploitation by the owner of the fact that his property is, at least temporarily, unzoned. To those ends, the wisdom of these decisions seems clear.
“It is also apparent that the courts must exercise this authority with extreme care to avoid any encroachment into the legislative function of zoning. It is imperative that there be clear evidence before the court of the specific use to which the owner intends to develop his property and the order framed •in reference to it.”

In the light of these cases, it is clear that the courts recognize that zoning remains a legislative function. The trial court is not to perform as a zoning board, but may, at most, allow a specific use upon which a petitioner is relying. The Sinclair case does not compel the trial court to allow a proposed specific use. In fact, the Supreme Court stated that the trial court should reach its decision “in terms of the reasonableness of excluding that specific use.” Sinclair, supra, at p 378. As we have noted, the trial court in the instant case was justified in finding that plaintiff’s proposed use of the property for a 56-unit apartment building was unreasonable. Consequently, the trial court did not err in leaving the property unzoned.

Plaintiff next argues that the trial court was obliged to honor the stipulation between plaintiff and defendant, and that it committed reversible error in refusing to do so. The proposed stipulation was a compromise, and would have allowed plaintiff to construct a 52-unit apartment building. Upon the objection of the interveners, the trial court refused to allow the stipulation.

It is conceded that a stipulation, to be effective, must be accepted by all parties to a suit. It is also conceded that an intervener is a proper party, but plaintiff argues that the acceptance of the compromise by the defendant constituted an official act on its part; that a presumption of validity attached to it, and this presumption of validity had to be rebutted by the interveners. We do not agree.

We do not believe that an effort to reach a compromise or settlement by a municipality can be considered an official act, or binding upon the municipality. The law encourages parties to settle cases in which they are involved. Knoll v. Swanson, 92 Ill App2d 398, 234 NE2d 543 (1968). This is as true of municipalities as of private parties. Were we to accept plaintiff’s argument, municipalities would be unable to attempt to negotiate a settlement of claims or lawsuits in which they were involved, lest their offers would be construed as official acts and permanently binding against them. The legislative process is the product of advice, deliberation and quite often, compromise, and attempts at compromise should be encouraged. The fact that the interveners are in default in this court is irrelevant to the issue of the propriety of the trial court’s rejection of the proposed stipulation. After the trial court rejected the agreement upon the objection of the interveners, the defendant Village was entitled to, and has in fact, resumed its defense against the plaintiff’s proposed development in the trial court and in this court. Defendant has also passed an ordinance rezoning the subject property as R3. It had not been permanently bound by its attempt to compromise the dispute, nor was it being inconsistent in the resumption of its defense. We find that it was not error for the trial court, upon the objection of one of the parties, to reject the proposed stipulation.

Plaintiff also argues that the trial court erred in refusing to allow plaintiff to amend its complaint and to reopen proof to present evidence as to a specific commercial use.

The right to allow amendment is within the sound discretion of the trial court. The Civil Practice Act, Ill Rev Stats 1967, c 110, § 46, allows amendment before final judgment “on just and reasonable terms.”

The trial court did not abuse its discretion in this regard. All of the evidence presented to the court concerned itself with a multiple-family residential use. The issue was the amount of density of that type of use. Then after closing its proof, plaintiff sought to present evidence on a totally different category, a specific commercial use. Plaintiff had never requested such a use from the Village. If the trial court had allowed such a reopening of proof it would have usurped the legislative process, and would have improperly constituted itself as a zoning authority. Bredberg v. City of Wheaton, 24 Ill2d 612, 182 NE2d 742 (1962). The trial court’s denial of plaintiff’s request was proper.

Finally, defendant has filed a motion, requesting that this court take judicial notice of the fact that it has passed an ordinance rezoning the subject property as R3. This motion was taken under advisement with the case.

Since we have found that the trial court acted correctly in leaving the property unzoned, the action of the Village in reclassifying the property was not improper, and we take judicial notice that the property has been rezoned under an R3 category.

Decree affirmed.

STAMOS, J., concurs.

ENGLISH, J., dissents.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kurt Spencer, Defendant-Appellant.
    Gen. No. 53,142.
    First District, Third Division.
    October 9, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a nonjury trial the defendant was found guilty of theft of a ring valued at more than $150. The court after a hearing in aggravation and mitigation imposed a sentence but immediately put the defendant on probation for three years, the first thirty days thereof to be spent in the House of Correction. As the only contention raised on appeal is that defendant’s waiver of his right to a jury trial was not “understandingly” made, we here present the colloquy between the court, the defendant and his lawyer relating to the jury waiver:

THE CLERK: “The People of the State of Elinois versus Kurt Spencer,”
MR. TOOLE [Defendant’s attorney] : “We are ready for trial, Judge, this will be a trial by the court.”
THE COURT: “You understand, Mr. Spencer, you have a right to trial by jury?”
DEFENDANT: “Yes, your Honor.”
THE COURT: “You are waiving that right and you wish to be tried by this court?”
DEFENDANT: “Yes, I do, your Honor.”
THE COURT: “Will you indicate that by signing the jury waiver, please?”
DEFENDANT: “I’ll do that.”
MR. TOOLE: “For the record, I’m tendering to the court a jury waiver signed by the defendant, Kurt Spencer.”

The statute provides that anyone accused of a criminal offense has the “right to a trial by jury unless understandingly waived by the defendant in open court.” Ill Rev Stats, c 38, § 103-6 (1965). Whether such a waiver has been understandingly made depends upon the facts and circumstances of each case. People v. Wesley, 30 Ill2d 131, 195 NE2d 708; People v. Suarez, 96 Ill App 2d 153, 237 NE2d 841. In the case before us the record shows that the defendant was informed of his right to trial by jury and that this right could be waived and that if he waived it, he would be tried by the court.

As the issue involved is the understanding of the defendant, the duty imposed upon the court is to see that the defendant is informed, in words and language he understands, of his right to a jury trial. There can be no specific or defined formula to follow in determining whether a jury waiver is understandingly made. People v. Crable, 80 Ill App2d 243, 225 NE2d 76. We must assume however in the absence of anything to the contrary that “waiver” and “jury” are words that are commonly understood.

Defendant relies heavily on People v. Bell, 104 Ill App2d 479, 244 NE2d 321. The facts of that case are clearly distinguishable from those now before the court. In Bell the following colloquy took place when the case was called:

MR. FISHMAN [Defendant’s attorney]: “This is a jury waiver. Do you know what that is ?”
DEFENDANT BELL: “A what ?”
MR. FISHMAN: “A jury trial is? And you don’t want a jury trial, is that right?
DEFENDANT BELL: “No.”
MR. FISHMAN: “Sign that.”
THE COURT: “All right, this document you have signed, you know this is a waiver of jury?”
DEFENDANT BELL: “Yes.”

The court, on the basis of the foregoing dialogue, held that the defendant was not properly apprised of his right to a jury trial and that his attempted waiver was, therefore, ineffective because not understandingly made. That holding rested on a finding that the “defendant never manifested an understanding of the nature of a jury trial. His only response when questioned about this was ‘A what?’ ” His lawyer then said, “A jury trial.” The court, unable to find anything that explained to the defendant the meaning or consequences of a jury waiver, concluded that “under these circumstances defendant’s waiver was not understandingly made. . . .” In a supplemental opinion denying a petition for rehearing the court said:

“Defendant’s questioning answer should have alerted the trial court to the need of an explanation of what a jury trial was and of his entitlement to a jury trial so that defendant could understandingly decide whether or not he wished to waive a jury trial.”

In the recent case of People v. Collins, 112 Ill App2d 458, 251 NE2d 325, we decided that “it would be an unwarranted extension of the Bell case to read that decision as requiring such an explanation in all cases.”

In the instant case the questions and answers contain no ambiguities and, unlike Bell, no hint of any lack of adequate understanding. On the contrary, we think the defendant’s desire for a nonjury trial was clear and unmistakable. Accordingly the judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Martin, Defendant-Appellant.
    Gen. Nos. 51,999, 52,288. (Consolidated.)
    First District, Third Division.
    October 9, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: STOUDER, P. J.

text:
    David W. Jones, Plaintiff, v. McDougal-Hartmann Co., a Foreign Corporation, Defendant and Third-Party Plaintiff-Appellant, v. Robert J. Janssen, d/b/a R. J. Janssen Painting and Decorating Company, Third-Party Defendant-Appellee.
    Gen. No. 69-8.
    Third District.
    October 14, 1969.
    Rehearing denied December 1,1969.

      Robert C. Strodel, of Peoria, for appellant.
    Cassidy, Cassidy, Quinn & Lindholm, and McConnell, Kennedy, McConnell & Morris, of Peoria, for appellee.
   STOUDER, P. J.

David Jones commenced this action in the Circuit Court of Peoria County seeking to recover damages for personal injuries from McDougal-Hartmann Company on account of violation of the Structural Work Act. McDougal-Hartmann filed a third-party action against Robert J. Janssen, d/b/a R. J. Janssen Painting and Decorating Company, Jones’ employer, seeking recovery from Janssen on the theory of common-law indemnity. For the purpose of trial, the actions were severed and a jury trial of the Jones’ claim against McDougal-Hartmann resulted in a verdict in favor of Jones for $50,000. This judgment has been satisfied and we are not concerned with the propriety of this judgment in this appeal. Mc-Dougal-Hartmann’s third-party action against Janssen in a separate trial by jury, resulted in a not guilty verdict. McDougal-Hartmann’s post-trial motions were denied, and this appeal follows. For convenience McDougal-Hartmann, Appellant and Third-Party Plaintiff, will be referred to as Plaintiff, and Janssen, Third-Party Defendant-Appellee, will be referred to as Defendant.

The evidence presented at the trial on the third-party complaint was practically the same evidence presented during the original trial and is substantially undisputed. The plaintiff, a general contractor, entered into a contract with the State of Elinois for the construction of a portion of an interstate freeway in Peoria, Elinois. The project included construction of at least one overpass which required painting, for which work the defendant had submitted a bid. The defendant had worked on other projects of the plaintiff. Plaintiff orally requested that defendant proceed to paint the structural steel on the overpass.

On the morning of November 19,1963, Jones, a journeyman painter, Winbom, and one Gess, an apprentice painter, met at Janssen’s home. Scaffolds, ladders, drop cloths, etc. were loaded into Janssen’s truck and he drove the truck, together with the painting crew, to the job site. All of the equipment was owned by Janssen. When they arrived at the job site, Janssen instructed the crew as to what work was to be done and they commenced rigging cables preparatory to the actual painting. Janssen stayed on the job site about half an hour and returned once sometime before noon during the period prior to the occurrence involved. None of the members of the painting crew was designated as foreman.

When the painting crew arrived on the job, a cement finishing crew of plaintiff’s was working on a column. The foreman of the cement finishing crew told the painting crew to be sure that the columns were covered with drop cloths so that they would not be spattered with paint. This crew left the job site before noon while the painting crew was still stringing cables for its scaffolds. During the course of the morning, a McDougal-Hartmann truck came along the roadway under the bridge, stopped momentarily, and then proceeded on. No one left the truck or communicated with the painters who at this time were still stringing cables.

Between 2 and 2:30 in the afternoon Jones went from the completed scaffold to a ladder which was leaning against a column. The bottom of the ladder was not braced or held by another person. Jones attempted to kick the top of the ladder from the column in order to replace a drop cloth which had blown from around the column and in so doing, the ladder twisted causing Jones to fall to the ground, permanently injuring him. As Jones began to descend the ladder, he was warned by painter Win-born not to try to descend the ladder in such a manner and position. Jones told Winborn not to tell him what to do.

In its third-party action, plaintiff sought to recover $50,000 (amount of Jones’ judgment) together with attorney’s fees for defending the original action against defendant. The jury found the issues in favor of defendant and it is the judgment entered thereon from which plaintiff has appealed. Plaintiff’s action is based on its assertion that its violation of the Structural Work Act was merely passive and the defendant’s violation thereof was active. Plaintiff’s principal argument is that it should be entitled to recover as a matter of law and hence the court erred in failing either to direct a verdict in its favor or to grant its motion for judgment notwithstanding the verdict.

John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill 331, 141 NE 739, is a leading case on the subject of indemnity, both contractual and common law. It recognizes that there are certain relationships such as between contractor and subcontractor in the instant case, where the ultimate financial burden of injuries may be shifted to the party deemed most responsible. To avoid the application of the rule of no contribution among joint tort-feasors, common-law indemnity depends on differences in the quality of the conduct of the parties. Chicago & Midland Ry. Co. v. Evans Const. Co., 32 Ill2d 600, 208 NE2d 573. This may well represent a matter of policy depending on the relation involved, and it is difficult to formulate standards applicable to all situations.

Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, confirms two general principles applicable to indemnity between parties similarly situated as those in the instant case. In the first place, indemnity is not barred because it may result in an employee receiving and an employer paying an amount in excess of that provided in the Workmen’s Compensation Act. In the second place, the party seeking indemnity is not barred merely because both parties may have violated the Structural Work Act. The “willfulness” which is an element of any violation of the Structural Work Act, does not prevent the passive wrongdoer from shifting the financial burden to the active wrongdoer.

In Rovekamp v. Central Const. Co., 45 Ill App2d 441, 195 NE2d 756 (quoted with approval in Miller v. De Witt, supra), the court stated, “Although the liability imposed by the. (Structural Work) Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is the more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of the work, to be sure, but of different phases of the work. Neither can escape liability to the (injured) plaintiff — thus the purpose of the Act is accomplished — but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about the plaintiff’s injury.” See also Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346. A subcontractor is usually a specialist whose contract ordinarily provides for the accomplishment of a particular result, the means of accomplishing such result being the choice of the subcontractor. Further, the subcontractor ordinarily furnishes the equipment and personnel and such equipment and personnel are under the control, authority and direction of the subcontractor in the performance of the subcontract. With respect to the work the subcontractor has undertaken to perform, he does have a greater responsibility and duty with respect thereto than a contractor exercising general authority over the entire job. Consequently, when the basis of a claim for indemnity arises on account of injuries to third persons which are incident to the performance of a subcontract, and there is no participation by the general contractor in such performance, we believe the subcontractor’s conduct is the active wrongdoing thereby requiring indemnity.

In Sack v. Arcole Mid-West Corp., 33 Ill App2d 344, 179 NE2d 441, the court affirmed a directed verdict in favor of the third-party plaintiff (general contractor) against the third-party defendant (subcontractor). In that case the third-party defendant, a plumbing subcontractor, owned, designed and furnished a scaffold with respect to which an employee was injured because the guardrail was improperly and insecurely fastened. The employee recovered for his injuries from the general contractor, who thereupon sought indemnity from the subcontractor. The third-party plaintiff had a superintendent on the job who had seen the scaffold and approved it. The court concluded that the injury resulted from an activity within the sole control and responsibility of the third-party defendant and therefore, the court held the injury to be the result of active misconduct as a matter of law.

We believe the principle of the Sack case is applicable to the facts in the instant case. Defendant argues that the Sack case involves defective equipment, a condition which did not exist in the instant case. We are, however, unable to understand such distinction. Is an improperly fastened guardrail different in kind from an improperly braced ladder? Furthermore, in Sack the subcontractor was not accused of the deliberate or intentional furnishing of a defective scaffold. Rather, his breach of duty was the failure to discover and remedy the unsafe condition.

In the instant case, the facts as well as the inferences to be drawn therefrom are undisputed. In our opinion, the only conclusion that can be drawn therefrom is that defendant’s misconduct was active, while that of the plaintiff passive.

In our opinion the Circuit Court of Peoria County erred in denying the third party plaintiff’s motion for judgment notwithstanding the verdict. Accordingly the judgment of said Court is reversed and remanded with directions that judgment be entered in favor of such third party plaintiff in accord with the views expressed herein.

Judgment reversed and remanded with directions.

ALLOY and RYAN, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alvin Riggs, Defendant-Appellant.
    Gen. No. 53,507.
    First District, Second Division.
    October 14, 1969.
    Aaron Payne, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Hildreth, Defendant-Appellant.
    Gen. No. 53,988.
    First District, Second Division.
    October 14, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.