author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Vaughn and Freddie Hatchett, Defendants-Appellants.
    Gen. Nos. 52,224, 52,225. (Consolidated.)
    First District, Fourth Division.
    April 2, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), 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, both defendants were found guilty and placed on probation for five years, with Vaughn to serve the first year and Hatchett the first six months in the County Jail. Two other defendants, Rip Johnson and Davis Johnson, were found not guilty, and the State nolled the indictment as to a fifth defendant, Reverend Steven Taylor.

POINTS RAISED ON APPEAL

(1) The trial j udge made inconsistent findings.

(2) Defendants were denied the right to fully cross-examine their accusers.

EVIDENCE

Police Officer Stanley Jasper, for the State

On July 15, 1966, he was working with Officers Houlihan and Williams. About 6:00 p. m., when it was still light, he drove by the Temkin Shoe Store at 1437 S. Pulaski Road in Chicago, and saw many people in the street looking, into the store. There were approximately 50 or 100 people in the store. He and Officer Houlihan got out of the car to investigate and saw people trying on shoes. He went down the gangway at the side of the store to try to halt those who were leaving by the side door. He couldn’t stop everyone. Officer Houlihan stood at the front door on Pulaski Road trying to stop people from going out. Someone had yelled “Police.”

He entered the store through the side door carrying a shotgun and noticed that the door was jammed open, with the locks broken off. The front door was closed, but the two large front windows had been knocked out. They arrested thirteen people in the store, put them against the wall with their hands up, and searched them. Four persons that he arrested in the store were in court. To his knowledge, none of those four were brought into the store from outside. Among the people arrested were Vaughn, Hatchett, Davis Johnson, Rip Johnson, and Reverend Steven Taylor. He personally handcuffed Rip Johnson and Davis Johnson. Those arrested were then transported by a squadrol to the police station. There were shoes scattered throughout the store, but they did not stay to gather them up because they were under orders to arrest everyone who was “in the vicinity, in the store.” At about 6:30, they departed from the premises, leaving other police officers behind.

Louis Temkin, for the State

He is manager and salesman for Temkin Shoes, Inc. When he left the store on Thursday, July 14, 1966, the doors and gate were locked. The store was not open for business on Friday, July 15, 1966. He returned to the store on Friday to find the side door broken in and the store slightly disordered. The doors were resecured. When he returned on Saturday morning, the store was a shambles. He knew Hatchett lived behind the store, but he did not give him, or any other of the defendants, permission to enter the store on July 15.

Police Officer Melvin Houlihan, for the State

About 6:00 p. m. on July 15, 1966, he was working with Officers Jasper and Williams near the Temkin Shoe Store. There was a large crowd in front of the store. When they investigated, they found 50 or 60 people in the store with shoes and boxes in their hands. He entered through the front, and Officer Jasper entered through the rear. The people in the store dropped the objects and began to flee. He and Officer Jasper grabbed as many people as they could and placed them under arrest. Thirteen people were arrested, four of whom were in court. (He identified a fifth person who was a spectator in the courtroom, but, on closer scrutiny, withdrew the identification.) Those four he grabbed coming out of a rear storage room. Officer Williams called a squadrol, and they placed the arrested persons in it. He did not arrest anyone in the street and knew of no one arrested there.

Police Officer Arthur Jackson, for the State

Shortly after 6:00, on July 15, 1966, he arrived at the Temkin Shoe Store, where he found Officer Houlihan inside the front door and Officer Jasper by the side door. There were about 75 to 80 people inside the store, many of whom were were running out, and about 200 people in the street. His partner, Officer Johnson, arrested Reverend Taylor in the street for “creating a scene” and “starting a riot.” He arrested the two Johnson boys outside of the store for being disorderly in the street. He thought there were two adults in the store at that time, and he identified them as Vaughn and Hatchett. He helped put Vaughn, Hatchett, Rip Johnson, and Davis Johnson into the squadrol.

Reverend Steven Taylor, for the defense

On July 15, 1966, he was arrested by Officer Johnson while standing with a group of people across the street from the shoe store. He was watching the activity around the store. As he was placed in the squadrol, he saw Rip and Davis Johnson standing on the sidewalk. There were about fifteen people in the squadrol, five of whom were adults.

Reverend Robert Christian was a character witness for defendant Vaughn.

Guido Marchetti and Leon Wool were character witnesses for Rip and Davis Johnson.

Earl Vaughn, on his own behalf

He is married and has two children, eight and nine years old. At the time of arrest, he was employed at Bugle Finishing Co. He was convicted for criminal trespass in 1958.

On July 15, 1966, his family was visiting his mother-in-law at 1422 South Harding. He went to find his son, because he heard the rioting, and he was going to take the family shopping. On Pulaski, he saw a crowd in front of the shoe store, and investigated it. He thought his son might be there. He couldn’t see the child in front, so he walked down the gangway to check the rear. He saw children running in and out of the store. Officer Jasper fired a shotgun into the air behind him, and he turned around to see what happened. Officer Jasper then butted him in the stomach with the gun and took him inside where he was lined up with others and searched. Defendant Hatchett was then brought in from outside. About 16 of them were then placed in the squadrol. He saw the Johnson brothers and Reverend Taylor for the first time when he was placed in the squadrol. He did not enter the Temkin Shoe Store to commit a felony.

Freddie Hatchett, on his own behalf

He lives with his mother directly behind the Temkin Shoe Store. On July 15, 1966, he had just left his house to go swimming and was walking through the gangway towards the Franklin Swimming Pool when he was arrested. He was taken into the store, where he was searched. Vaughn was the only adult he saw in the store. He was then placed in the squadrol with the other defendants. He knew the store was being burglarized, but he did not enter the store with the intention of committing a felony.

Davis Johnson, on his own behalf

He lives at 1424 S. Ridgeway and is a senior at Farragut High School. On July 15, 1966, he was walking along Pulaski after leaving a friend’s house, when he saw a crowd in front of the shoe store. Kids were running in and out, and he stopped to look. Officers Jackson and Johnson then arrested him because he shouldn’t have been there, and took him to the squadrol. He never entered the Temkin Shoe Store.

Rip Van Johnson, on his own behalf

He lives at 1424 S. Ridgeway and is a senior at Farragut High School. On July 15, 1966, he was walking to a restaurant at 15th Street and Pulaski when Officer Jackson stopped him and told him to stand by the squad car. He was handcuffed and taken into the store. He was then put into the squadrol.

OPINION

(1) Defendants claim that the trial court erred in convicting defendants Hatchett and Vaughn when, on identical evidence, defendants Rip and Davis Johnson were acquitted. The testimony of Officers Jasper and Houlihan indicates that all four defendants were arrested in the store. The State’s evidence against the four defendants was not identical. Both Rip and Davis Johnson had the corroborating testimony of Officer Jackson and Reverend Taylor to support their contention that they were arrested in the street for disorderly conduct, whereas Jackson testified that at that time he saw Vaughn and Hatchett inside the store. Neither Jackson nor Taylor could testify as to the circumstances of the arrests of Vaughn and Hatchett.

Defendants Vaughn and Hatchett also argue that, since the court obviously believed Jackson in regard to the Johnsons, all of the testimony of Officers Jasper and Houlihan must be discounted and held insufficient to support their conviction. Officer Jackson, however, stated that the Johnson brothers were arrested by him in the street for disorderly conduct. He did not know how Vaughn and Hatchett were arrested, but he did see them being held in the store. Officer Jackson thus contradicted part of the testimony of Officers Jasper and Houlihan, and apparently this discrepancy in the facts was sufficient in the mind of the trial judge to result in the acquittal of the Johnson brothers.

This contention turns on the credibility of the witnesses — a matter essentially for the trial court. We still have the duty, however, to examine closely the evidence on which the decision is made, and if it is so unsatisfactory and unreasonable as to raise a serious doubt of the defendant’s guilt, the conviction must be reversed. We do not feel that the discrepancies in the testimony of the State’s witnesses and the denials and contradictory testimony of defendants are sufficient to destroy the credibility of the State’s entire case. We believe that there is enough evidence, if believed, to establish the guilt of defendants beyond a reasonable doubt. People v. Marino, 95 Ill App2d 391, 238 NE2d 256; People v. McElroy, 63 Ill App2d 403, 211 NE2d 444; People v. Clay, 27 Ill2d 27, 187 NE2d 719; People v. Gray, 33 Ill2d 349, 211 NE2d 369.

For the proposition that it is improper to convict one defendant under an indictment and acquit another under the same indictment when both are identified by the same witness, defendants cite People v. Griffin, 88 Ill App2d 28, 232 NE2d 216. In that case, the complaining witness testified that both defendants struck him and robbed him while they were riding together in an elevator. On that record, the trial court had found one defendant guilty and discharged the other. In reversing the guilty judgment, this court found that there was “no plausible reconstruction of the State’s case which would support the finding of not guilty as to [one] and guilty as to [the other].” 88 Ill App2d 28, 31, 232 NE2d 216. As we have pointed out, this identity of total testimony does not exist in the case before us. There are, of course, many cases in which conviction of one of two jointly indicted and jointly tried defendants has been upheld. E. g., People v. Rogers, 16 Ill2d 175, 183, 157 NE2d 28.

(2) Defendants also contend that the trial judge improperly restricted the cross-examination of Officers Jasper and Houlihan. In the course of the State’s case, defense counsel, on cross-examination, made several attempts to elicit testimony from the arresting officers as to the location of Reverend Taylor at the time of his arrest. Reverend Taylor’s case had been nolled, presumably because the arresting officer admitted that his arrest was for disorderly conduct in the street. Defense counsel hoped to impeach the entire testimony of the police officers on the basis of their statements concerning the arrest of Reverend Taylor. Objection was made to this testimony, and the court, in all instances, sustained the objection on the basis that Reverend Taylor was no longer a defendant and discussion of his arrest was irrelevant even for impeachment purposes. We do not believe that these rulings by the trial judge constitute reversible error.

We agree that the greatest latitude should be given on cross-examination to the counsel for the defense for the purpose of impeaching adverse witnesses. People v. DuLong, 33 Ill2d 140, 210 NE2d 513. However, the latitude to be allowed in such cross-examination rests largely in the discretion of the trial court. Due to the trial judge’s unique position, a conviction will not be reversed for improper restriction of cross-examination unless there has been a clear abuse of this discretion. People v. Provo, 409 Ill 63, 97 NE2d 802; People v. McCain, 29 Ill2d 132, 193 NE2d 784; People v. DuLong, 33 Ill2d 140, 210 NE2d 513; People v. Caldwell, 62 Ill App2d 279, 210 NE2d 556. The impeachment here was an attempt to show inconsistent statements concerning a collateral act. The location and circumstances of arrest of Reverend Taylor were irrelevant in the exploration of the guilt of the four defendants on trial. The facts of his arrest were different and were not before the court at that time. We find no abuse of the trial judge's discretion in limiting the scope of this cross-examination as he did. Defendants Vaughn and Hatchett were not prejudiced by such rulings.

DECISION

The judgments of the Circuit Court are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE STAMOS

license: Public Domain

text:
    G. S. Rynearson, d/b/a Employers Service Bureau, Plaintiff-Appellee, v. Odin-Svenson Development Corporation, Defendant-Appellant.
    Gen. No. 52,446.
    First District, Fourth Division.
    April 2, 1969.
    W. Bruck Malone, of Evanston, for appellant.
    Herman Grant, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff brought suit to recover $850 on an oral agreement to pay an employment agency fee. The trial court heard the case without a jury and entered judgment in favor of plaintiff. Defendant appeals from that judgment.

Harry I. Browning, office manager of plaintiff corporation, was the only witness to testify on behalf of plaintiff. Browning’s entire testimony was admitted without objection, although the record is replete with objectionable testimony.

EVIDENCE

Testimony of Harry I. Browning, called by plaintiff:

One of the men in plaintiff’s office, Mr. Sayerson, answered an advertisement which defendant had placed in one of the Chicago newspapers by mailing an “unidentified resumé” to defendant. The day after the “unidentified resumé” was mailed, Ernest Svenson on behalf of the defendant telephoned plaintiff in response to the “unidentified resumé.” Browning testified without objection as follows:

“. . . Mr. Svenson called and asked for — that he was interested and wanted to see this man and asked for the identification.
“At this time Mr. Sayerson, with my knowledge, indicated to him that if he wanted to hire the man he would have to pay the agency fee and this personally was agreeable to Mr. Svenson because we then released the contact information to him. Now, that would include his name, address, phone number of the man, and confirmed it the same day in writing to him.
“Along with this information we included, by Mr. Svenson’s request, a copy of our fee schedule which was sent on.”

The letter of confirmation, written by Sayerson, dated December 28, 1965, in addition to furnishing the identity of Thomas Seddon, the party who was eventually hired by defendant, read:

“This letter is to confirm our phone conversation of December 28, 1965 A. M. pertaining to contact information that this applicant is .... I thank you very much for your interest and would appreciate to be informed on the outcome of negotiations.”

After his interview with defendant, Seddon came to plaintiff’s office and informed plaintiff that defendant did not wish to pay the placement fee and that he (Seddon) was financially unable to pay. Browning testified, without objection, to a telephone conversation initiated by Sayerson to Svenson and in which Seddon took part:

“In general the conversation was such as I have just repeated, that the man [Seddon] understands that the company [defendant] would not pay the fee now after previously agreeing to it and that the man [Seddon] wanted the job, but could not afford to pay the fee. At that time Mr. Seddon and Mr. Svenson talked on the phone, when Mr. Seddon hung up the phone he indicated to us that Mr. Svenson had agreed to take care of the fee for him and to come to work.”

During the same telephone conversation Svenson protested that the placement fee was too high and made an offer of settlement. This also was admitted without objection.

Testimony of Ernest Svenson, called by defendant:

He was president of defendant corporation and he neither had occasion to speak to plaintiff nor to the best of his knowledge had plaintiff ever contacted him, but a man named Seddon came to him and told him an employment agency had referred him to defendant. At this juncture of his examination Svenson stated that he desired to correct his testimony and said:

“Some time just prior to January 1st a gentleman from an employment agency called me and referred to an ad which I had placed in the Tribune and said that they had a man which would fit the job.
“I told him that if he had a man that would fit the job that I would like to see this man.”

The caller did not identify himself.

Seddon called him and informed him that he wanted to see Svenson and apply for a job. The first meeting between Svenson and Seddon occurred on New Years Day 1966, at which time they discussed the possibility of employment. The first communication defendant had with the plaintiff was on January 3, 1966, when Svenson received a letter from plaintiff which confirmed an alleged telephone conversation between Sayerson and Svenson. Sometime between January 3rd and 7th, Sayerson called him and informed him that Seddon was in plaintiff’s office discussing fees and plaintiff wanted Svenson to pay the fee, but he refused because he had no contract with plaintiff.

Seddon told him that he was directed to defendant by an employment agency, but Seddon could not recall the name of the agency. He questioned Seddon about employment agencies being involved because Svenson had previous difficulties with employment agencies and had to go to court to straighten out these difficulties.

Testimony of Thomas Seddon, called by defendant:

He had consulted plaintiff on November 8, 1965, for the purpose of obtaining its services in seeking employment either in development work in hydraulics or as a design engineer and he submitted a resumé and signed an agreement to pay an agency fee. He understood that in most instances the employer paid the fee and he was financially unable to pay a fee.

During the last week of December, 1965, plaintiff referred Seddon to defendant and he telephoned Svenson for an appointment and was interviewed on January 1, 1966. After discussing his qualifications and the position available they discussed employment agencies and Svenson manifested a reluctance to the idea of paying an employment fee. Seddon then went to plaintiff seeking to work out some arrangement on the fee. Sayerson, who was counselor assigned to Seddon, suggested that Seddon pay the fee.

At this juncture Sayerson telephoned Svenson, in Seddon’s presence, but Seddon was unable to recall anything that was said by Sayerson. During this telephone conversation Seddon was given the telephone and spoke to Svenson informing him that he was making no progress with plaintiff.

During the cross-examination of Seddon the following occurred:

Q. “At any conversation with Mr. Svenson that you subsequently had, did he mention who was obligated to pay the fee ?”
A. “When?”
Q. “When this was negotiated on the 7th of January. . . .”
A. “He told me if there was any fee he would pay.”

OPINION

Plaintiff contends that defendant promised to pay a sum of money for services plaintiff rendered in furnishing a person with Seddon’s qualifications. Defendant contends that Seddon came to defendant without any agreement between plaintiff and defendant and any fee would be paid by Seddon per his agreement with plaintiff; plaintiff failed to prove that it ever made an offer or that if an offer was made that defendant accepted the offer.

The evidence reveals that Seddon obtained the services of plaintiff for the purpose of securing employment. An agent of the plaintiff answered an advertisement, placed in the paper by defendant, by mailing defendant an “unidentified resumé.” Seddon was interviewed and subsequently hired by defendant. There is conflicting testimony as to whether defendant contacted plaintiff requesting information about Seddon and whether defendant agreed to pay the agency fee.

The trial court found there was an offer, acceptance and consideration and we agree. A contract is an agreement between competent parties, on a consideration sufficient in law, to do or not to do a particular thing. It is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. 12 ILP, Contracts, §2.

The record establishes conflicts in the pertinent portions of testimony of the parties, but it is the function of the trial judge to determine credibility of the witnesses and evaluate their testimony. The trial court has a particular advantage in evaluating testimony. Pittman v. Lageschulte, 45 Ill App2d 207, 219, 195 NE2d 394 (1963). Since we hold that the trial court could have properly found that the parties did in fact enter into a contract, we need not consider defendant’s other contention that plaintiff thrust an unwanted benefit upon defendant for which no contract could be based.

Judgment affirmed.

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


text:
    Albert Belpedio, Citizen and Taxpayer of the State of Illinois and the County of Cook, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellee, v. Civil Service Commission of Cook County, Illinois, Perry L. Fuller, Chairman of the Civil Service Commission of Cook County, Illinois, Edward P. Brennan, Personnel Director of the Civil Service Commission of Cook County, Illinois, Joseph M. Taussig, Vice President of the Civil Service Commission of Cook County, Illinois, Joseph M. Solon, Secretary of the Civil Service Commission of Cook County, Illinois, P. J. Cullerton, Assessor of Cook County, Illinois, and Richard B. Ogilvie, President of the Board of Commissioners of Cook County, Illinois, Defendants-Appellants.
    Gen. No. 52,664.
    First District, Fourth Division.
    April 2, 1969.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Ronald Butler and Dean H. Bilton, Assistant State’s Attorneys, of counsel), for appellants.
    David P. Schippers and Samuel J. Betar, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

On plaintiff’s complaint, and after hearing, the trial court issued a preliminary injunction enjoining defendants, until further order of court, from conducting a Civil Service examination for positions in the office of the Assessor of Cook County. Defendants have appealed.

Examination of the record discloses that the injunction was entered without there having first been compliance with the mandatory statutory requirement that plaintiff file a bond to cover payment of such costs and damages as might be suffered by any defendants found to have been wrongfully enjoined. In this circumstance, the court was without authority to issue the injunction. Ill Rev Stats (1967), c 69, § 9. See also Hoffman v. City of Evanston, 101 Ill App2d 440, 444-446, 243 NE2d 478, and authorities there cited.

Accordingly, on the court’s own motion, the injunction order appealed from is reversed.

Reversed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin Turner (Impleaded), and Wendell Horne (Impleaded), Defendants-Appellants.
    Gen. Nos. 52,702, 52,703. (Consolidated.)
    First District, Fourth Division.
    April 2, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from their convictions, after a bench trial, of attempt robbery. Both were sentenced to the Illinois State Penitentiary; Horne for a term of one to four years, and Turner for a term of one to five years. Defendants contend that the State failed to prove the essential elements of the crime.

EVIDENCE

Testimony of R. T. Wells, complaining witness:

He is a taxi driver for the Checker Taxi Company. He has been driving a taxi for 18 years and has been employed by Checker for about three years.

At about 1:20 a. m. on January 30,1967, he was driving a taxi south on Woodlawn and picked up the defendants at about 47th and Woodlawn. He was instructed to take them to 55th and Prairie. As they proceeded to that point they passed another taxi driver in his private car, and the witness blew his horn and waved. Turner asked if he knew the other driver and said, “That fellow is pretty fast with a knife.”

They proceeded west on 47th and then turned south on Drexel. As they approached 49th Street Horne suggested that he pull over. Horne said, “This is good enough.” The witness said, “49th Street, you say?” and Horne said, “Yes, this is it.” The witness looked over, turned on his top light and stopped. After hé turned on the top light, Horne said, “This is it.”

The witness looked back and saw that Horne had his left hand on a gun which was partially in his left front pocket. He saw the handle and the nickel plate. He stopped the taxi in the middle of the intersection and leaped from it. From outside of the taxi he saw the front part of the gun go up; it was small, a .32 or a .38. He ran north on Drexel some 40 or 50 feet. He then turned around and saw Turner getting over the seat and under the wheel. The taxi then moved off.

He stopped another taxi going south on Drexel and told the driver that a couple of guys had tried to rob him. He then saw a police car going south, so he jumped out of the cab and stopped the police car. The police car started after his taxi on Drexel.

When he next saw the cab it was stopped in front of 4930 South Drexel. As the squad car approached the taxi the defendants jumped out and ran. The police officers chased the defendants and caught them lying in a snowbank.

He has been robbed about seven or eight times in the 18 years that he has driven a taxi; in each instance the robbers had been drinking. He did not smell the defendants’ breath but they had had a few drinks.

Testimony of Consie Anderson, called by the State:

He is a police officer for the City of Chicago. On the morning of January 30, 1967, he was in a patrol car with Officers Jessie Cox and Walter Brown. As their car was proceeding southbound on Drexel, R. T. Wells approached the car and explained that two men had attempted to rob him. They went in pursuit of Wells’ taxi. They found the cab moving along Drexel; and as they approached, the cab stopped and two men emerged. The two men crossed Drexel and ran into a yard. The officers pursued and he found defendant Horne lying in knee-deep snow. His partners returned with defendant Turner.

Testimony of Officer Jessie Cox, called by the State:

He was in the patrol car with officers Anderson and Brown on the morning in question. He found defendant Turner hiding in some hedges. There were no weapons recovered. Otherwise his testimony is substantially the same as that of Officer Anderson.

Testimony of Wendell Ray Horne, a defendant:

In the early morning of January 30,1967, he was in the company of defendant Turner celebrating Turner’s birthday. They left a tavern with the intention of going to defendant Turner’s girl friend’s house located on 60th Street. They hailed a taxi and Turner directed it to 55th Street in order to buy some liquor before going on to his girl friend’s. The cab proceeded along until it ended up going south on Drexel.

When the cab got to the 4800 block he told defendant Turner, “Melvin, I’m not going to go with you.” He then told the taxi driver, “When you get to the corner you can let me out.” The driver did not say anything. When they got to 49th the witness said, “Hold on man, this is it right here.” At that time the driver slowed the taxi down and then he was gone; the taxi was still moving when he left it. Defendant Turner climbed over the front seat to stop the cab which was still rolling; and he stopped the cab in front of a nursing home at 4938 Drexel Avenue. The driver had run off towards 47th Street.

He had worked at the nursing home and he knew the owner and the nurses and most of the patients. He decided to stop there and visit the graveyard shift. That’s why he wanted to get out at 49th. Defendant Turner was going on to visit his girl friend.

They had been drinking a lot because they had been celebrating. He did not have a .38 or a .32 revolver in his possession. When the driver jumped from the taxi he said, “You are not going to get my $25.00.”

He got out of the taxi after defendant Turner stopped it and he proceeded into the yard in front of the nursing home. The snow was deep and he fell into it. Just as he fell in the snow the police came over and he heard them hollering, “Where’s the other one, where’s the other one?” So he said, “Here I am, over here.” Officer Anderson came over then and took him and defendant Turner to the police station. They were searched, and no gun was found.

He did not use the driveway entrance to the nursing home because it was too far away; so he stepped over the hedge and walked through the snow. He did not run from the cab.

Defendant Melvin Turner did not testify.

OPINION

Defendants contend that the evidence does not show that a substantial step was taken toward the commission of a crime nor that force was used or threatened. They claim that the taxi driver was so fearful of a robbery attempt that he misinterpreted defendant Horne’s statement, “This is good enough, this is it”; and although there is no evidence to support it, defendants now urge that the driver mistook Horne’s wallet for a small pistol. Defendants point out that no gun was ever found, and that they have a reasonable explanation for their actions.

The accounts of what occurred that early morning are very similar. The only real conflicts concern the existence of a gun, defendant Horne’s intent when he told the driver to pull over, the movement of the taxi when the driver jumped from it, and the defendants’ flight from the taxi when the police approached.

When a cause is tried without a jury, it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflicting a reviewing court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631. The trial court evidently believed that the taxi driver, after being requested to stop at a place other than the announced destination, heard Horne say: “This is it,” and saw Horne put his hand on a pistol which he then saw go up. We believe these actions constituted a substantial step towards the commission of a robbery and also a threat of the imminent use of force.

Defendants next contend that the State did not prove the specific intent to rob. They argue that the words, “This is good enough, this is it” cannot be interpreted as threatening a holdup; those words, they insist, only indicate that the defendants wanted the driver to stop the taxi and let them off. They point out that there was no demand for money, nor was there an attempt to take any property. Proof of specific intent to rob is necessary, but competent circumstantial evidence may establish the requisite intent. People v. Hawkins, 54 Ill App2d 212, 216, 203 NE2d 761; People v. Bonner, 43 Ill App2d 42, 47, 192 NE2d 568. Even if the sudden request to stop the taxi together with Horne’s statement, “This is it,” were made in the most innocent manner, the production of a gun by defendant Horne is sufficient circumstantial evidence of an intent to commit a crime.

Defendants then argue that even if the gun shows an intent to commit a crime, the State has not proven that there was an intent to rob. However, the Illinois Supreme Court, in People v. Kuhn, 291 Ill 154, 125 NE 882, said at page 158:

The method employed and the order given were those usually employed and given in an assault with intent to rob, and the fact that there was no robbery was evidently due to the failure of (the complaining witness) to obey the order. The fact that he defended himself and prevented the robbery has no tendency to disprove the alleged intent.

That language is directly applicable to the instant case.

After examining the entire record we believe that the defendants were proven guilty beyond a reasonable doubt. The judgment of the Circuit Court is affirmed.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.

       Attempt is defined in the Criminal Code, 111 Rev Stats, 1967, c 38, § 8-4:
      § 8-4. Attempt
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.
      Robbery is defined in section 18-1 of that code:
      § 18-1. Robbery
      A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.


text:
    William A. Hart and Nancy S. Hart, Plaintiffs-Appellants, v. Thomas J. Moran, Defendant-Appellee.
    Gen. No. 53,120.
    First District, Fourth Division.
    April 2, 1969.
    Henehan, Donovan & Isaacson, of Chicago (Malcolm W. Burnett, Jr., of counsel), for appellants.
    No brief for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal by Nancy Hart as Special Administrator for William A. Hart, Jr., deceased, and individually from a judgment entered in favor of defendant after a bench trial. She contends that the court erred in sustaining the defense that defendant’s obligation on a written guarantee had been released. Defendant has not filed an appearance or brief in this court. On January 25, 1968, Nancy Hart was appointed Special Administrator for William A. Hart, deceased.

The following facts are not disputed. William A. Hart loaned $10,000 to H. & T. Motor Sales, Inc., on March 12, 1962. The loan was evidenced by a note of the corporation and was guaranteed by defendant personally. The note was dated March 12, 1962, and was payable to William A. Hart, Jr. or Nancy Hart on or before two years from its date with interest at twelve percent per annum until paid. At that time Hart owned no stock in H. & T. Motor Sales, Inc. Thereafter, in May, Hart became the owner of 40% of that stock. In June of that year Felz Motor Sales, Inc., was formed, absorbed the assets of H. & T. and conducted business at the latter’s location. Hart owned 40% of Felz and defendant, 60%. In September 1962, Hart purchased defendant’s stock in Felz and the corporate name was changed to Hark Motor Sales, Inc. In January 1963 an agreement was entered into between Hart and defendant which provided in part that:

4. Hart agrees to protect, save harmless, defend and indemnify Moran against all actions, claims, demands, suits, judgments and liabilities of every kind and nature which may arise against, be imposed upon, or incurred by Moran in his individual capacity, as a consequence of, or arising out of, any act, sale, default, negligence or omission, willful or otherwise, on the part of Hart or Hark Motor Sales, Inc., their agents and employees, during the operation of said dealership by Hart and Hark Motor Sales, Inc., and to reimburse Moran for any and all expenses and costs, including attorney’s fees, which Moran may incur by reason of any such actions, claims, demands, suits, judgments or liabilities, or in defending himself in, or in settling any suit or litigation to which he may be made a party as a consequence of any act or thing done by Hart or Hark Motor Sales, Inc. (Emphasis supplied.)
5. Moran agrees to protect, save harmless, defend and indemnify Hart against all actions, claims, demands, suits, judgments and liabilities of every kind and nature which may arise against, be imposed upon, or incurred by Hart in his individual capacity, as a consequence of, or arising out of, any act, sale, default, negligence or omission, willful or otherwise, on the part of Moran or H & T Motor Sales, Inc., their agents and employees, during the operation of said dealership by Moran and H & T Motor Sales, Inc., and to reimburse Hart for any and all expenses and costs, including attorney’s fees, which Hart may incur by reason of any such actions, claims, demands, suits, judgments or liabilities, or in defending himself in, or in settling any suit or litigation to which he may be made a party as a consequence of any act or thing done by Moran or H & T Motor Sales, Inc. (Emphasis supplied.)

Defendant claims that the purpose of the agreement was that there be a general release by both parties of any liabilities arising from the operation of their various business enterprises and that a release of his obligation of guarantee was included. A careful scrutiny of the agreement, however, discloses that the release by Hart related only to the acts of Hart or Hark Motor Sales, Inc., or their agents during the operation of that dealership. Since the guarantee was executed by defendant during his sole operation of H. & T. we cannot determine that the release signed by Hart absolved defendant from liability on his guarantee.

The answer to defendant’s claim that the intention of the agreement was to relieve him of liability on the guarantee is found in the language of Armstrong Paint & Varnish Works v. Continental Can Co., 301 111 102, 106,133 NE 711:

But the contentions of the parties to the contract are not the criterion which should guide the court in determining whether the written contract is a full expression of the agreement of the parties. The court must determine this from the writing itself. If it imports on its face to be a complete expression of the whole agreement, — that is, contains such language as imports a complete legal obligation, — it is to be presumed that the parties introduced into it every material item and term, and parol evidence cannot be admitted to add another term to the agreement although the writing contains nothing on the particular term to which the parol evidence is directed.

Plaintiffs also argue that since the note is payable to William A. Hart or Nancy Hart, judgment should be entered in her favor individually since the defense of release did not apply to her and no defense has been made to her claim.

We find that the court erred in entering judgment for defendant and the judgment is reversed.

Since the note is payable to William A. Hart, Jr. or Nancy Hart, the cause is remanded to the Circuit Court with directions to enter judgment in the sum of $10,000 plus interest from March 12, 1962, in favor of either Nancy Hart, Special Administrator for William A. Hart, deceased, or Nancy Hart, individually, as the plaintiffs may elect.

Reversed and remanded with directions.

ENGLISH and STAMOS, JJ., concur.


author: PRESIDING JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Ralph Erickson, Defendant-Appellee.
    Gen. No. 68-124.
    Second District.
    April 3, 1969.

      William V. Hopf, State’s Attorney of Du Page County, of Wheaton, and J. Michael Fitzsimmons, Jr., Assistant State’s Attorney, for appellant.
    Anthony F. Mannina, Marco and Mannina, of Downers Grove, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The State brings this appeal claiming that the magistrate’s order of April 16, 1968, quashing the complaint and his order of June 18, 1968, refusing to vacate such order, was in error.

The defendant, Ralph Erickson, was charged with driving a vehicle while under the influence of intoxicating liquor in violation of section 47 of the Uniform Act Regulating Traffic on Highways (111 Rev Stats 1967, c 95%, § 144 (a)). The occurrence took place in a privately owned parking lot.

The same Act also provides in section 20 as follows:

“Provisions of act refer to vehicles upon the highways — Exceptions. The provisions of this Act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:
“1. Where a different place is specifically referred to in a given section.
“2. The provisions of Articles IV and V shall apply upon highways and elsewhere throughout the State.”

Article V referred to in the above quoted section includes the offense charged against the defendant.

The single issue for decision is: Is the offense charged applicable to the defendant when he is upon private property (that is, a shopping center parking lot) as distinguished from public highways and “elsewhere throughout the State?” We answer in the affirmative.

While this is a case of first impression in Illinois, the question is not foreign to other jurisdictions. An almost identical situation occurred in New Jersey as reported in the case of State v. Sisti, 62 NJ Super 84, 162 A2d 297 (1960). In that case, as in the instant case, the statute violated did not contain verbiage which would restrict itself to the offense occurring “on highways.” Instead, it simply provided that a person who operates a motor vehicle while under the influence of intoxicating liquor would be subject to a penalty. As in the case before us, the defendant sought to establish and the State to negate, that the act under scrutiny was meant to apply only if the occurrence took place upon a highway. In response the Appellate Court of New Jersey, at 162 A2d 298, stated:

“We prefer to rest our decision on the simple fact that, as beyond question the legislation regards an intoxicated driver as a menace and one who should be denied the right to operate an automobile in such condition, the legislative intent includes a ban on the operation of a motor vehicle in a place devoted to public use as is here involved. Such a holding emphasizes the significance of the absence in NJSA 39:4-50 of any limitation on the area within which the operation of a motor vehicle under the circumstances therein defined is prohibited. No sound reason exists for a holding that the Legislature intended to tolerate the operation of a motor vehicle, by a person under the influence of intoxicating liquor, in a semipublic place such as is here involved.”

See also, State v. Gallagher, 102 NH 335, 156 A2d 765 (1959); State v. Rosier, 105 NH 6, 191 A2d 526 (1963); and 7 Am Jur2d, Automobiles and Highway Traffic, §169.

The Illinois Legislature, unlike the New Jersey Legislature, expressly and specifically provided that the offense of driving a vehicle while under the influence of intoxicating liquor would apply, not only if it occurred upon highways, but “elsewhere throughout the State.” Since the legislature used the word “elsewhere” instead of “anywhere,” we interpret the intent to include private areas that are devoted to a semipublic use as contrasted to areas that are strictly private in use. The parking lot involved herein was devoted to a semipublic use and therefore the statute applied.

Consequently, the orders of April 16, 1968, and June 18, 1968, are reversed and this cause is remanded to the trial court to proceed in accordance with the views expressed herein.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    City of Rockford, a Municipal Corporation, Plaintiff-Appellee, v. Leslie Watson, Defendant-Appellant.
    Gen. No. 68-155.
    Second District.
    April 3, 1969.
    Jack R. Cook, of Loves Park, for appellant.
    John W. Nielsen, of Rockford, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant, Leslie Watson, was charged with violating section 61 of the Uniform Act Regulating Traffic— UART (111 Rev Stats 1967, c 95%, § 158) which is following too closely. He was tried in a bench trial by a magistrate, found guilty beyond a reasonable doubt and fined $15 plus costs. It is from this judgment of conviction that he appeals.

There is but one question. May a municipal corporation be a proper party plaintiff in an action based upon a state statute when the Legislature has granted no such express authority?

The factual background is not in conflict. The defendant, while driving within the city limits of Rockford, was arrested by a city policeman and charged, by way of an Illinois Uniform Traffic Ticket and Complaint, with the above stated offense. (The city had no ordinance covering this offense.) Prosecution was conducted by the city attorney, the defendant was tried under the presumption of innocence theory and proof was beyond a reasonable doubt.

Under the former judicial article the answer to the question posed by this appeal would have been obvious because article VI, section 33 read:

“All process shall run: In the name of the People of the State of Illinois; and all prosecutions shall be carried on: In the name and by the authority of the People of the State of Illinois; and conclude: Against the peace and dignity of the same.”

See, City of Chicago v. Berg, 48 Ill App2d 251, 255-256, 199 NE2d 49 (1964); People v. Stringfield, 37 Ill App2d 344, 349, 185 NE2d 381 (1962). However, this provision was repealed by the new judicial article, People v. Petruso, 35 Ill2d 578, 583, 221 NE2d 276 (1966); People v. Hemphill, 96 Ill App2d 407, 409-410, 238 NE2d 601 (1968), and thereby left a void which has not been filled by implementing legislation.

The plaintiff seeks advantage of this void by arguing that because section 33 is no longer in force, it should be inferred that this was intentional in order that municipal corporations could sue in their own name for a breach of a state statute, especially a violation of the UART. This is further buttressed by the fact that section 138 of the UART (Ill Rev Stats 1967, e 95%, § 235) entitled, “Disposition of fines and forfeitures,” states that where the offense is committed within the limits of a municipal corporation, the arrest is by authorities of such corporation and such entity “shall seasonably prosecute for all fines and penalties under this Act” (emphasis added), then the fines and penalties recovered shall be paid over to the treasurer of such entity.

At first glance this latter argument seems somewhat convincing; however, under closer scrutiny we believe that the case of City of Champaign v. Hill, 29 Ill App2d 429, 173 NE2d 839 (1961), decided before the new judicial article (and therefore limited in its application to the instant case), and cited by both parties hereto, along with section 136 of the UART (Ill Rev Stats 1967, c 95%, § 233) reveals the true intent of the legislature insofar as an interpretation of section 138, supra, is concerned.

The Champaign case was one in declaratory judgment for the purpose of interpreting section 138, supra, and concerned itself mainly with the distribution of fines and forfeitures and not with who may be the proper party plaintiff. However, the court in that case went on to explain the meaning of the word “prosecute” as used in that particular section. At page 449 it was stated,

“. . . the word ‘prosecute’ we are constrained to hold that the intent of the legislature, in the initial enactment of the subsection and subsequent amendments, meant the word to mean only the common, everyday use of the word, and only intended to require that the city officers pursue the offender as far as they might legally go.”

The Court, at page 450 went on to determine that the word “prosecute” does not only include the formal conduct of the court proceedings, but includes the arrest, signing of a complaint for warrant or signing of an information and also appearing in court as a witness in order to pursue the prosecution. In addition, the case set forth the then prevailing rule based upon section 33 of article VI that the proceedings for violation of a state statute must be filed in the name of the People of the State of Illinois.

The Court’s basis for determining the necessary party plaintiff has been abolished; however, that portion of the opinion interpreting the intent of the Legislature in its use of the word “prosecute” in section 138, as applied to distribution of fines and penalties, is still based upon sound reasoning and we hereby adopt it. Consequently, the plaintiff can find no solace in this particular section for its main contention. This is even more definite when we consider section 136, supra, which provides in part:

“The State’s Attorney of the county in which the violation occurs shall prosecute the violator.”

It is then contended that the abolishment of section 33 of article VI ipso facto, meant that municipal corporations gained a new found power by indirection. We know that the converse of this proposition cannot prevail. That is, the People of the State of Illinois would not be a proper party plaintiff in a suit brought for violation of a Rockford ordinance. See section 1-2-7 of the Municipal Code of 1961 (111 Rev Stats 1967, c 24, § 1-2-7).

The defendant argues, and we believe correctly so, that if municipal corporations are to have the power to pick and choose under what label or remedy they will prosecute, this power should be given to them expressly by the legislature rather than to have the courts bestow such revolutionary power upon them. We agree.

A municipal corporation, being a creature of the State, has only those powers that are expressly delegated to it by the Legislature. It has no inherent power and must be able to point to the statutory provision giving it a particular power to exercise, City of Marquette Heights v. Vrell, 22 Ill App2d 254, 260, 160 NE2d 593 (1959). In the instant case, the plaintiff has not pointed out to us the authority of the legislature in allowing it to bring suit in its own name for violation of a state statute.

While there may be pro and con arguments relative to judicial activism, to hold with the plaintiff in the case at bar would be nothing more than judicial revolution. We can find no basis, by way of constitution or statute, which would allow this court to grant the power herein sought by the plaintiff and therefore the judgment of the trial court is reversed.

Judgment reversed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Johnson, Defendant-Appellant.
    Gen. No. 52,372.
    First District, Third Division.
    April 3, 1969.
    Rehearing denied May 1,1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln 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 R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant, James Johnson, was found guilty of murder after a trial by jury and was sentenced to a term of sixteen to twenty-three years in the penitentiary. From this judgment of conviction the defendant prosecutes the instant appeal.

The defendant contends that: 1) he was not proven guilty beyond a reasonable doubt; 2) the trial court erred in excluding evidence in support of his theory of self-defense; and 3) it was error for the trial court to permit the State to impeach a defense witness on a collateral matter.

It is undisputed that on November 9, 1966, the deceased, Ed Merchant, died from a stab wound of the lung inflicted by the defendant, James Johnson. It was the defendant’s position at trial that the killing was in self-defense. There were no witnesses to the killing other than the defendant.

The State called Floyd Burrell who lived and worked at a hotel at 661 West Madison Street in Chicago. The witness testified that on the evening of November 9, 1966, he was about to ascend the stairs to his hotel when he met the deceased who was carrying a half-pint of cheap whiskey. At the foot of the steps the two men shared a drink and as they were standing together, the defendant approached them and said, “Give me a drink of that whiskey.” The deceased responded “Well, you know it ain’t no good blood between you and I. You remember when we live over at the other hotel. It wasn’t no good blood between us there and there ain’t no good blood between us now.” Burrell, anticipating a fight, left the two men as Merchant informed the defendant, “Well, with what I carry I will kill any mother-.” It was Burrell’s opinion that the defendant was not intoxicated but that the deceased was about “three-fourths intoxicated.” The witness further testified that after approximately one hour, the defendant came to his room, gave him a knife, and informed the witness that “[he] just cut a boy.” On cross-examination, the witness stated that he did not hear the defendant say anything to provoke the deceased.

Police Officer Michael Boyle testified that he arrested the defendant at his residence at about 10:00 p. m. on the evening following the killing at which time the defendant informed the police that he was glad to see them because he had been looking for them in order to surrender. According to Boyle, the defendant said: “I stabbed that guy because he was trying to rob me.” Officer Boyle was later recalled by the State whereupon he stated that he had noticed no bruises, abrasions, or scratches on the defendant’s face at the time of the arrest. He also stated that the defendant never mentioned that the deceased possessed a knife or any other weapon during the alleged robbery attempt.

The defendant took the witness stand in his own behalf and related the events leading up to the death of Ed Merchant. He corroborated the testimony of Burrell as to what was said while Burrell was present. When Burrell departed, the defendant said that Ed Merchant rushed toward him, struck him on the left cheek with the whiskey bottle in his hand, and then demanded money from the defendant. When the defendant told Merchant that he had no money, Merchant again rushed toward him while beginning to pull out an object from his pocket. The defendant stated that the black handle was exposed and it looked like a knife. The defendant then stabbed the deceased at least three times that he remembered, twice in the arm and once in the chest. After the stabbing, the defendant saw the deceased’s knife lying on the sidewalk. There was additional testimony by the defendant that his being struck in the face with the bottle resulted in a bruise on his cheek and soreness in his left jaw for a period of two weeks.

Several witnesses testified to the violent disposition of the deceased and to the peaceful nature of the defendant in the community. It was established that the defendant was blind in one eye, 6' 1" tall, and thirty-nine years of age. The deceased was 6' 5" tall and weighed about 195 pounds.

The defendant asserts that the State has failed to meet its burden of proof since it has not directly rebutted the defendant’s own exculpatory testimony. In the case at bar, there were no occurrence witnesses other than the defendant, and hence it is highly unlikely that the prosecution could ever directly rebut the defendant’s testimony in such a case. It is true that when “some evidence” of self-defense is offered by the defendant, the burden devolves upon the State to prove beyond a reasonable doubt as to that issue together with all the other elements of the offense. (HI Rev Stats 1965, c 38, §§ 3-2 and 7-14.) However, where a defendant’s exculpatory statements asserting self-defense are effectively impeached by his prior inconsistent conduct and statements and by the uncontradicted facts and circumstantial evidence so as to render the defendant’s version improbable, the jury need not accept the defendant’s statements or testimony as true even though the State cannot directly rebut the exculpatory language. (People v. Warren, 33 Ill2d 168, 210 NE2d 507.) In the instant case, the jury was presented with evidence which, if accepted by it, could cause it to refuse to accept the defendant’s testimony. It was undisputed that the defendant fled from the scene and failed to render any aid to the deceased. There was testimony by the police that the defendant made no mention of the deceased’s having a knife at the time of the attack. It is also significant that the police found no knife at the scene. The deceased had been stabbed not once but four times. The arresting police officer discovered no bruises, abrasions, or scratches on the face of the defendant. In addition, the defendant’s own testimony reveals that he stabbed the deceased before the deceased had drawn a knife. This evidence, taken together, prompts us to conclude that we cannot disturb the jury’s finding that the evidence did not support the defendant’s theory of self-defense. It is not our function to substitute our judgment for that of the jury since whether a killing was justified under the law of self-defense is a question of fact for the jury (People v. Johnson, 2 Ill2d 165, 117 NE2d 91; People v. Owens, 73 Ill App2d 108, 219 NE2d 733) and when, as here, the evidence is conflicting, it is the function of the trier of fact to resolve the conflict and determine the credibility of the witnesses. People v. Sudduth, 14 Ill2d 605,153 NE2d 557.

However, even though we are not prepared to disturb the jury’s verdict based upon the evidence which was in fact placed before it, there remains the question whether the defendant was afforded a fair trial in which there was no improper and prejudicial exclusion of evidence offered on his behalf. The defendant asserts that evidence favorable to him was erroneously excluded by the trial court, and therefore the jury could not make an adequate and informed finding as to his guilt or innocence. He specifically argues that the trial court erred in excluding evidence offered by the defendant relative to the deceased’s general reputation in the community, to the defendant’s own awareness of the deceased’s violent disposition, and to the defendant’s state of mind at the time of the killing.

In a trial for murder or manslaughter in which preliminary testimony is offered which, if given credence by the trier of fact, shows as in this case that the deceased was the aggressor, evidence of the deceased’s violent disposition or evidence of prior threats or misconduct by the deceased towards the defendant is admissible as tending to show the extent of his apparent danger, the circumstances confronting the defendant, and the motive by which he was influenced. (People v. Davis, 29 Ill2d 127, 193 NE2d 841; People v. Adams, 25 Ill2d 568, 185 NE2d 676; People v. Dugas, 310 Ill 291, 141 NE 769.) In the instant case, several defense witnesses were properly allowed to testify that the deceased was “vicious,” “a fighter,” was not a peaceful man in the community, and that he had been known to carry a knife. The defendant was not unduly restricted in thus bringing the defendant’s reputation to the attention of the jury.

On redirect examination, the defendant was allowed to testify that he had seen the deceased at an earlier date at the System Hotel with a knife in his possession. However, a general objection was sustained to the question by defense counsel: “And at the System Hotel what was he doing with that knife when you saw it?” and the defendant was thereby precluded from explaining the circumstances of that occurrence. The defendant had a right to show that he was acquainted with the dangerous disposition of the accused and defendant’s knowledge of such facts is a highly material element to the issue of self-defense (People v. Allen, 378 Ill 164, 37 NE2d 854) since the jury must decide whether the defendant could reasonably believe that such force was necessary to prevent imminent death or great bodily harm to himself or to prevent the commission of a forcible felony. If at the System Hotel the defendant had been threatened by the deceased or had been involved in a violent altercation with the deceased, the jury should have been given the opportunity to have such facts and surrounding circumstances before it. We are of the opinion that the trial court unduly and improperly circumscribed the defendant’s proof in this instance.

The prosecution’s general objections were sustained when defense counsel asked the following questions of his client:

“The DEFENDANT (continuing): When I pulled out my knife Ed Merchant was coming toward me.
“Q. What did you think he was coming toward you for? (State’s objection sustained.)
“Q. Did you feel, sir, that you were about to be attacked? (State’s objection sustained.)
“Q. Would you tell the ladies and gentlemen of the jury your mental state at that time? (State’s objection sustained.)”

The form of the second question could have been objected to as a leading question; however the rule is well-settled that a general objection will be regarded as going to the competency of the question rather than to the form of the question. (People v. Allen, supra.) In any event, this court sees no ground for objections being sustained as to the remaining two questions, and in fact the responses to these questions relate to a crucial issue in this case, namely, what was the motive or belief of the accused at the time the deceased rushed toward him. In People v. Biella, 374 Ill 87, 28 NE2d 111, the defendant was charged and convicted of manslaughter, and self-defense had been asserted by the accused. The Supreme Court held that it was reversible error for the trial court to sustain general objections thereby preventing the defendant from testifying as to how he thought the defendant was going to kill him or as to “How could Mr. Tyrka (the deceased) have killed you at that time?” At page 89, the court said:

“The court should have permitted the defendant to answer these questions. In criminal cases where the intention, the motive or belief of the accused is material to the issue, he is allowed to testify directly to that fact. (Citing cases.) The circumstances under which the act in question was done usually serve to manifest to a great degree the intent of the actor and may overcome his declaration as to his intention, but he has the right to testify to his intention and to have the circumstances surrounding the act considered in connection with his testimony.”

Likewise, in the case at bar, the defendant was erroneously denied this opportunity to directly testify to his intention, motive and belief. In Biella, the court went on to say at page 90:

“We have set out enough of the evidence to show that there is a reasonable basis for a claim of self-defense. It was essential that the record be free from prejudicial error.”

We are mindful of the fact that the jury’s guilty verdict was predicated exclusively upon circumstantial evidence, and we are also mindful of the uncontradicted testimony by the defendant and the State’s own witness that the deceased was the oral aggressor immediately prior to the occurrence. Therefore, it was essential that the record be free from prejudicial error. The aforementioned errors in unduly restricting the defendant’s testimony cannot be characterized as merely harmless errors, and the judgment must be reversed and the cause remanded for a new trial not inconsistent with the views herein expressed.

It is unlikely that the alleged improper impeachment of the defense witness will arise at a future trial, and therefore it need not be discussed.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MORAN, J.

text:
    Joseph Nathan and F. William Spiegel, Jr., Plaintiffs-Appellees, v. Herbert R. Leopold, Defendant-Appellant.
    Gen. No. 50,924.
    First District.
    April 7, 1969.

      James P. Chapman, of Chicago, for appellant.
    Edward I. Rothschild and Donald E. Egan, of Chicago (Rothschild, Hart, Stevens & Barry, of counsel), for appellees.
   MORAN, J.

Defendant, Herbert R. Leopold, appeals from a summary judgment entered in favor of plaintiffs, Joseph Nathan and F. William Spiegel, Jr., for $154,000 and costs in the Circuit Court of Cook County.

Plaintiffs brought this action to recover for money expended because of Leopold’s refusal to indemnify them for their purchase of stock from Michael Wolfson and Harry Zaidler, pursuant to contracts that Wolfson and Zaidler, the plaintiffs and the defendant had entered into. Plaintiffs filed a motion for summary judgment and on March 17, 1965, the trial judge found that “from the pleadings, admissions, exhibits, and depositions that no genuine issue of facts exists,” and entered judgment against the defendant in the sum of $154,000 and costs against the defendant Leopold. We affirm.

During the period relevant to this controversy, Leopold was president of Argus and a member of its board of directors. Wolfson and Zaidler were the principal officers of Fairbanks-Ward Industries, Inc., a wholly-owned subsidiary of Argus. Nathan and Spiegel were the owners of Alldec Corporation.

Argus wanted to sell and Alldec wanted to buy Fairbanks-Ward from Argus. However, as a condition of buying Fairbanks-Ward, Alldec deemed it necessary that Wolfson and Zaidler remain with Fairbanks-Ward after Alldec had purchased it. On the other hand, Wolfson and Zaidler owned stock in Argus and were unwilling to extend their employment contracts with Fairbanks-Ward unless they could dispose of their stock in Argus for a fixed price. As a result of this rather complicated situation, two contracts were entered into, which in pertinent part read:

“AGREEMENT A.
“MEMORANDUM OF AGREEMENT
“AGREEMENT entered into this 27th day of December, 1962, between MICHAEL S. WOLFSON AND HARRY ZAIDLER (hereinafter sometimes collectively referred to as ‘W-Z’), JOSEPH NATHAN AND F. WILLIAM SPIEGEL, JR., (hereinafter sometimes collectively referred to as ‘N-S’), and HERBERT R. LEOPOLD (hereafter sometimes referred to as ‘Leopold’),
“WITNESSETH:
'WHEREAS, W-Z are the owners of 14,000 shares of common stock of ARGUS INCORPORATED ('Argus’) and desire to sell the same, upon the terms hereafter set forth; and
‘WHEREAS, N-S are willing to purchase said shares at the price and upon the terms hereafter set forth; and
“WHEREAS, Leopold is willing to guarantee unto W-Z the performance of the undertakings of N-S,
“NOW THEREFORE, it has been agreed between the parties as follows:
“1. W-Z, jointly and severally, agree to sell to N-S, and N-S, jointly and severally, agree to purchase fourteen thousand (14,000) shares of common stock of Argus owned by W-Z, less that number of shares which may otherwise be sold by W-Z, as hereafter provided, on the following basis:
“(a) One-half (%) of such shares which have not otherwise been sold by W-Z shall be delivered and paid for not later than December 31,1963.
“ (b) The remainder of such shares which have not been theretofore sold as herein provided shall be delivered and paid for not later than December 31,1964.
“(c) The price for each share purchased by N-S shall be Fifteen Dollars ($15.00) per share.
“(d) None of such shares shall be purchased prior to January 5,1963.
“2. W-Z shall, on or before January 5, 1963, deliver certificates aggregating 14,000 shares of such stock to Freehling, Meyerhoff & Co. of Chicago, Illinois, with duly executed stock powers so that such shares may be transferable upon delivery. All federal stock transfer taxes payable in connection with such shares shall be paid by W-Z. All brokerage commissions and expenses related to the sale of such shares for the account of W-Z to persons other than N-S and Leopold shall be borne by W-Z. From time-to-time W-Z may cause such shares, or any part thereof, to be deposited with a Registered broker other than Freehling, Meyerhoff & Co., provided that such broker maintains an office in Chicago, Illinois. At any time prior to December 31, 1964, W-Z may sell all or any portion of such shares in open market, at the then current market price thereof; provided, however, that no such sale shall be effected at a price in excess of $15,125 per share. All proceeds realized from such sales shall be paid over to W-Z, with no claim against N-S or Leopold for any difference between the proceeds and $15.00 per share.
“3. At any time subsequent to January 5, 1963 and prior to December 31, 1964, N-S or Leopold shall have the privilege of purchasing any part of the unsold portion of such shares, subject to the provisions of the preceding paragraphs, by paying $15.00 for each such share purchased and depositing the amount of such purchase price within five (5) days following such election.
“4. Leopold hereby unconditionally guarantees unto W-Z the purchase of and payment for such shares by N-S on or before December 31, 1963 and December 31, 1964, respectively, as above set forth. If payment for such shares shall not have been made by N-S within 5 days from such dates, then upon notice to Leopold he shall pay for the same, in which event Leopold shall be entitled to acquire such shares for his own account. If N-S shall purchase and pay for such shares, then within five (5) days thereafter Leopold shall have the right to purchase the same from N-S at the price paid by N-S. In no event shall W-Z have any responsibility with regard to the option of Leopold to repurchase shares from N-S.
« 99

“AGREEMENT B

December 27,1962

Messrs. Joseph Nathan and F. William Spiegel, Jr.

Chicago, Illinois

GENTLEMEN:

This will confirm our agreement relating to the contract of even date with Messrs. Michael S. Wolf-son and Harry Zaidler pertaining to the purchase of their 14,000 shares of common stock of Argus Incorporated.

1. I hereby unconditionally indemnify each of you against any and all liability whatsoever to Messrs. Wolf son and/or Zaidler under such agreement; and

2. You hereby assign to me all of your right, title and interest in and to said contract and the 14,000 shares of Argus stock described therein, upon condition that: (a) I shall discharge in full all obligations relating to the purchase of such shares, and (b) I shall be entitled to make such purchase in my name or in the name of anyone I may designate, and in such case you shall not be entitled to any of such shares or any interest therein.

If the foregoing meets with your approval, please sign the duplicate where indicated.

Very truly yours,

/s/ Herbert R. Leopold Herbert R. Leopold

Accepted and Agreed to:

/s/ Joseph Nathan Joseph Nathan

/s/ F. William. Spiegel, Jr.

F. William Spiegel, Jr.”

On December 24,1968, after Wolfson and Zaidler called upon Nathan-Spiegel to purchase the first installment of their unsold stock pursuant to Agreement A, NathanSpiegel made demand upon Leopold to purchase the 7,000 shares of Argus on or before December 31, 1963 for $15 per share. Leopold refused to purchase said shares. On January 13, 1964, Nathan-Spiegel purchased the 7,000 shares from Wolfson and Zaidler pursuant to Agreement A. On January 28, 1964, Nathan-Spiegel filed this suit against Leopold.

In December, 1964, Leopold refused to purchase the remaining 7,000 shares. Thereupon Nathan-Spiegel also purchased these shares from Wolfson and Zaidler for $15 per share and amended their complaint accordingly to a claim for $154,000, the difference between the market value of $4 per share existing at each purchase and the actual price of $15 per share paid.

Leopold admits that Nathan-Spiegel made demand upon him to purchase the Argus Stock and that after his refusal, they purchased the shares.

Defendant contends that his promise of indemnity in Agreement B was not supported by consideration, because Nathan-Spiegel only repeat their promise to assign the Argus stock to him, which promise was already contained in Agreement A. This contention is without merit.

Agreement B by its very terms assigns to Leopold all the interest which Nathan-Spiegel possessed under Agreement A in consideration for his promise of indemnity. Agreement B thus clearly enlarged the option which Leopold had attained by his execution of Agreement A. The option created under Agreement A was good for only five days. Under Agreement B, Leopold was completely entitled to the stock. This admittedly did not give Leopold much more than he already had, but the issue is not to determine the adequacy of the consideration, but rather to find its existence. The inadequacy is for the parties to consider at the time of making the agreement, and not for the court when it is sought to be enforced. 17 CJS, Contracts, § 127, p 843.

The stated consideration in Agreement B is sufficient to uphold its validity. As a result, the contract clearly establishes the liability of Leopold to purchase the Argus stock.

Leopold also contends that Nathan-Spiegel’s promise in Agreement A to purchase Wolfson and Zaidler’s Argus stock was without consideration and therefore not a liability covered by his contract of indemnity. This argument is based on the premise that Wolfson and Zaidler had an unlimited right to decide the nature and extent of their performance thus making their promise contained in Agreement A purely illusory.

While it is true that Wolfson and Zaidler, prior to December 31, 1964, could sell their stock to anyone, it must be remembered that this privilege was conditioned upon and thus limited by their inability to sell it for more than $15,125 per share. Also, Nathan-Spiegel had the continuing right after January 5, 1963, the date when the stock was to be delivered to the stock broker, to purchase all 14,000 shares for $15 per share thereby preventing Wolfson and Zaidler from selling to someone else. If Nathan-Spiegel or Leopold demanded the shares and tendered the agreed amount per share, they could not be refused delivery.

The contract in this case is not analogous to those cases where contracts have been held void for lack of mutuality upon a finding that there was no consideration for the promise of one party to sell as much of the commodity as the other may want, except the promise of the other to take and pay for as much as he wants, there being no agreement that he shall want any quantity whatever, nor any means of determining what quantity, if any, he shall want. Such cases are examples of where one party to a contract had an unlimited power to determine his obligation without incurring a detriment to obtain that power. The contract in the instant case does not provide such a situation. In Agreement A NathanSpiegel have promised to purchase from Wolfson and Zaidler at $15 per share in two equal installments what remains of their 14,000 shares of Argus stock. In return for this promise, Wolfson and Zaidler promised to sell to Nathan-Spiegel upon the agreed terms and to forbear selling any of the 14,000 shares elsewhere for more than $15,125 per share. Wolfson and Zaidler’s promise was therefore not unlimited but rather was expressly limited by the maximum price at which they could sell their stock.

It is recognized that where there is no other consideration for a contract, the mutual promises of the parties constitute the consideration as long as they are binding upon the parties. Armstrong Paint and Varnish Works v. Continental Can Co., 301 Ill 102, 133 NE 711. The court in W. P. Iverson & Co., Inc. v. Dunham Mfg. Co., 18 Ill App2d 404, 413, 152 NE2d 615, quoted with approval Professor Williston: “Sufficient consideration in a bilateral contract may be defined as: Mutual promises in each of which the promisor undertakes some act or forbearance that will be, or apparently may be, detrimental to the promisor or beneficial to the promisee, and neither of which is void, are sufficient consideration for one another.” It is not necessary to the mutuality of a bilateral contract that the promises must be exactly of the same kind and nature. Aldrich v. Aldrich, 260 Ill App 333. Wolfson and Zaidler’s promise contained in Agreement A was a detriment to them and as such constituted good consideration. Thus, since there was good consideration supporting Agreement A, this was an enforceable contract creating liabilities on each of the parties. Therefore, Nathan-Spiegel were liable to Wolfson and Zaidler on this contract and as a result, Leopold’s promise of indemnity contained in Agreement B must be enforced.

Since the contracts involved in this case are clear and unambiguous, we have decided the rights and obligations of the parties thereto solely from the terms of the contracts which they signed and without regard to any parol evidence, for in such cases the instrument itself affords the only criterion of the intention of the parties. Cimino v. Cimino, 93 Ill App2d 412, 236 NE2d 299.

Leopold further contends that it was a question of fact whether he was induced to sign Agreement B without reading it as a result of the incorrect representation by Kasakoff, an attorney for Argus and Wolfson-Zaidler, as to its contents.

Since Leopold expected to be out of the city on the date set for the closing, December 27, 1962, Kasakoff took the agreements with him to Argus shortly before Christmas for Leopold’s signature. Leopold was busily engaged in making and receiving numerous telephone calls when Kasakoff entered his office. Kasakoff laid the agreements on Leopold’s desk and Leopold riffled through them, asking Kasakoff what they contained. Kasakoff replied that they contained his guaranty to Wolfson and Zaidler of the obligations of Nathan-Spiegel to purchase the Argus stock. Leopold specifically asked why he was required to sign the one-page letter agreement (Agreement B) from him to Nathan-Spiegel. Kasakoff stated in his discovery deposition that he answered that this covered “the arrangement between you and Spiegel and Nathan that Baskes spelled out to me, which has nothing to do with Wolf son and Zaidler and which will be a counterpart as between you and them.” In his affidavit, Leopold stated that Kasakoff only told him that it was a counterpart to Agreement A which insured that he would be entitled to those Argus shares which he might be forced to buy pursuant to Agreement A. Leopold was not represented by an attorney at the execution of these agreements or at any stage of the negotiations.

Whether Leopold was induced by Kasakoff’s representations or not, the law is that a party who signs an instrument relying upon representations as to its contents when he has an opportunity to ascertain the truth by reading and does not avail himself of the opportunity, cannot be heard to say that he was deceived by misrepresentations. Flannery v. Flannery, 320 Ill App 421, 51 NE2d 349. Leopold had ample opportunity to read Agreement A and as his brief argues, Kasakoff was not his attorney, thus dispelling any notion that he might have been justified in relying on Kasakoff’s representations. Leopold’s original intentions, if otherwise, were thus frustrated by his own negligence and not through any misrepresentations.

Our view of summary judgment proceedings was thoroughly researched and stated in Harp v. Gulf, M. & O. R. Co., 66 Ill App2d 33, 38, 213 NE2d 632:

“The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill App 2d 96, 151 NE2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272.”

With this understanding and with a recognition that summary judgment is an extreme remedy, we have carefully studied the pleadings, affidavits and depositions in the record in an effort to find a genuine issue of fact. Our search has failed to disclose any such question of fact which would give rise to the right to a trial.

For the foregoing reasons, the summary judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hubert Dale Smith, Defendant-Appellant.
    Gen. No. 68-41.
    Second District.
    April 7, 1969.

      W. EL Kasten, Gillespie, Burke & Gillespie, of Springfield, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

Hubert Dale Smith was found guilty of murder by a jury in the Circuit Court of Winnebago County and sentenced to imprisonment for a term of 30 to 50 years. On appeal, Smith alleges that the admission into evidence of certain written and oral statements made by him was a violation of his constitutional privilege against self-incrimination under the doctrine of Miranda v. State of Arizona, 384 US 436, 86 S Ct 1602. He also contends that certain other evidence was improperly admitted against him.

Although we are not asked to review the weight of the evidence, some summary is necessary. On August 11, 1967, Smith lived in an apartment in Rockford with Elna Turner and her two-year-old son, Chipper Turner. At approximately 12:30 a. m. on that date Smith returned to the apartment from work. Chipper was home alone, asleep in the bedroom. Elna Turner and a girl friend arrived shortly thereafter but immediately left to purchase some cigarettes and soft drinks. Smith testified that shortly after Elna left, Chipper fell out of bed and started to cry. Smith picked Chipper up, put him back into bed, and returned to the living room to listen to records. When Chipper continued to cry, Smith returned to the room and “picked him up by . . . under his arms, and he squirmed and kicked out of my arms and landed on the floor.” Again Smith replaced the child in bed and returned to the living room but when he heard Chipper breathing “real hard” he returned to the room. At this time, about 1:30 a. m., Elna and her friend returned and Chipper was rushed to the hospital where he died at 3:45 a. m. The evidence disclosed that Chipper died of severe multiple depressed skull fractures and that he had a broken leg and marked external bruising. Elna Turner testified that Chipper was in good health when she put him to bed at 11:00 p. m. on August 10.

At the pretrial hearing on the motion to suppress the confession and oral admissions, police officer John Hall testified that he went to the apartment at approximately 1:40 a. m. on August 11 pursuant to an emergency call. He and his partner rushed Elna Turner and Chipper to the hospital and Smith followed in another car with his brother. While Chipper was being treated in the emergency room, Hall went into an adjoining room to talk to Smith at approximately 2:00 a. m. Hall testified that he first took a card from his billfold and read the following to Smith:

“1. You have the right to remain silent and not answer any questions.
“2. Anything you say can and will be used against you in a court of law.
“3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
“4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions, if you wish one.”

Hall further testified that he then asked Smith if he understood the rights explained to him and, with those rights in mind, did he wish to talk to him. Smith answered “yes” to both question and after “him-hawing” around, stated that he had hit the child. Hall informed the defendant that he was arrested for “child abuse,” handcuffed him and took him to the patrol car. Smith’s brother came up to them outside the patrol car and at Smith’s direction removed some money from his pants pocket. Hall overheard Smith tell his brother to “post bond or hire a lawyer.” Smith was taken to the police station, booked for child abuse and after he indicated that he did not want to use the telephone, was placed in a cell at around 2:40 a. m.

At approximately 8:30 a. m., Smith was taken to the interrogation room of the Rockford jail with Captain Pirrello and detectives Anderson and Walt Smith. Pirrello asked the defendant if his rights had been explained to him and he replied that he had been advised the night before and that he understood those rights. Smith then told Pirrello that he had been babysitting with his girl friend’s child and that somehow the child fell from the bed and injured himself. When Pirrello expressed disbelief that the child’s injuries could result merely from a fall, Smith said that when the baby had started to cry he became “upset and nervous” and struck the boy with his fists. Detective Walt Smith then read to the defendant the same rights enumerated by Officer Hall from a card identical to that used by Hall and asked him if he would make a statement. When the defendant consented, Detective Anderson typed up the statement as dictated by the defendant that included the admission that the defendant had “become a little angry” and struck the child several times with his fist. The defendant then read the written statement, including a printed portion that again stated his rights (that he read aloud), and signed it. The trial court denied the defendant’s motion and permitted the written and oral statements into evidence.

It is readily apparent, that the “card” used by the Eockford police includes those essential warnings required by the Miranda decision. Miranda v. Arizona, 384 US 436. The defendant contends, however, that the statements were improperly admitted since his rights, as enunciated in Miranda, were violated in three ways. First, Miranda states that if “the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” The defendant takes the position that the police were aware that he “wanted” an attorney when they overheard his conversation wherein he told his brother to “post bond or hire a lawyer” and that therefore, all subsequent interrogation was improper. Under the circumstances, we do not feel that this remark vitiated the defendant’s waiver of his right to have counsel present. On at least three occasions, Smith was advised of his right to have an attorney present and on all three occasions he indicated that he understood that right and wished to make a statement without one. At the police station he was asked if he wanted to make a telephone call, but declined. In the case of Narro v. United States, 370 F2d 329, the accused informed her interrogator that her parents would obtain an attorney for her and then immediately made a confession. The court held that the defendant was obviously aware of her right to counsel and had voluntarily waived it. Here, Smith was repeatedly reminded of his right to an attorney and he at no time informed his interrogators of his wish to have one present but, on the contrary, indicated his willingness to make a statement without one.

Next, it is argued that the State failed to sustain its “heavy burden ... to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. . . .” Miranda, supra. It is argued that Smith was only 19 years of age, had only 10 years of formal education at the time of his arrest, was unfamiliar with police procedures and did not possess sufficient mental capacity to waive his constitutional rights. In support of that argument the defendant cites the case of People v. Hill, 39 Ill2d 125, 233 NE2d 367, wherein a statement of a 17-year-old accused was admitted where it appeared that there was no evidence of substandard intelligence and the defendant was “no stranger to police investigations.” There is no evidence in the record before us to show that Smith was of substandard intelligence. The only evidence concerning Smith’s intelligence was his testimony that he dropped out of school because of scholastic difficulties. We are not inclined to extend the Miranda doctrine to require the police to conduct an examination of the mental capacity of an accused to determine his ability to understand his rights. The Hill decision states further at page 132:

“The factors present here, of interrogations for relatively short periods of time, unaccompanied by any semblance of coercion, have been deemed sufficient to support a finding of the voluntariness of a confession made to law enforcement authorities where the Miranda rights have been clearly explained.”

Smith was questioned only briefly at the hospital and, the next morning, at the police station. On neither occasion was there any hint of coercion nor did his statements result from prolonged and oppressive interrogation. He was able to read and answered his interrogators cogently and clearly. We feel that the State sustained its “heavy burden” and that Smith knowingly and understandingly waived his privilege.

The Miranda case also states that . . any evidence that the accused was threatened, tricked or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” When the police requestioned Smith at 8:30 a. m. on August 11 they were aware that the child had died and were also aware that Smith did not know it. According to the defendant, it was incumbent on the State to apprise him of the child’s death and that their failure so to do was an act of deliberate deception and that therefore his waiver was invalid. He argues that if he had known that the child had died and that he would be charged with murder rather than child abuse, he would have made no further statements.

At the outset, we find that the “trickery” contemplated in the Miranda case and other decisions cited by the defendant, involve affirmative acts of fraud or deceit such as a misrepresentation that a friend’s job would be jeopardized if the defendant did not confess (Spano v. New York, 860 US 315) or where a confession is taken while the defendant is under hypnosis (Leyra v. Denro, 347 US 556). There are no decisions to the effect that the police have a duty to disclose to an accused all material facts known to them from other sources prior to interrogation. We feel that it would be an unnecessary and dangerous extension of the Miranda doctrine to so hold in this case. The pernicious results of such a decision are obvious. In each case, the police would not only be required to admonish an accused of his basic constitutional rights against self-incrimination but also inform him of all material facts learned by them during the course of their investigation. Clearly, the State has no right to extort confessions by deliberate fraud or trickery but, likewise, it has no obligation to apprise an accused of all factual information that it has collected against him.

There is no evidence of any affirmative trickery practiced by the police against Smith at his second interrogation. He did not inquire and they did not volunteer any information as to the condition of the child. His statements were virtually identical to those previously given officer Hall at the hospital. No threats or promises were made, no facts were misrepresented or any artifices employed to induce his repetition of his earlier statements. Under these circumstances, we conclude that his waiver was not invalidated by the “trickery” of his interrogators.

The defendant lastly urges that the trial court improperly denied his motion to suppress certain other evidence. On August 11 the police returned to the Smith apartment, without a search warrant, and removed certain pieces of the floor and baseboard that had bloodstains on them and a stained blanket. Approximately two weeks later they returned and removed a ring and belt that belonged to the defendant. Since the ring and belt were not offered into evidence we will not consider them further.

Elna Turner testified that she lived at the apartment with Smith, that they both worked and shared expenses, including the rent. The police informed her on August 11 that it would be necessary for them to examine the apartment and she said “okay.”

The defendant maintains that Elna Turner did not consent to the search of the apartment and thht, if she did consent, she had no right to waive the defendant’s constitutional rights against unlawful search or seizure. The defendant, of course, had the burden of showing that the search was unlawful (Ill Rev Stats, c 38, par 114-12 (b)). Although the evidence as to the consent by Elna Turner was not overwhelming, it was not rebutted or contradicted in any way by the defense.

The contention that Elna Turner could not consent to a search of the apartment since she was not married to the defendant is without merit. The rule is that where two people “have equal rights to use or occupation of the premises, either may give consent to a search and the evidence thus disclosed can be used against either.” The People v. Shambley, 4 Ill2d 38, 42, 122 NE2d 172; People v. Perroni, 14 Ill2d 581, 590, 153 NE2d 578. In the case of People v. Rodriquez, 79 Ill App2d 26, 35, 36, 223 NE2d 414, cited by the defendant to the contrary, the search was held unlawful not because the defendant was not married to his paramour but because it was evident that she did not jointly occupy the premises with him but only stayed with him from time to time at night.

Here, Elna Turner clearly had equal rights to use and occupy the apartment with Smith and her consent to its search was lawful.

We conclude that the trial court properly denied the defendant’s motions to suppress both his statements and the other evidence as discussed and that the judgment should be therefore affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.