author: MR. JUSTICE BURMAN

text:
    Georgia Hill, Appellant, v. Roscoe Dillon, Appellee.
    Gen. No. 53,049.
    First District, First Division.
    February 17, 1969.

      Joseph A. Rosin, of Chicago, for appellant.
    George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Frederic O. Floberg, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from the order of the Circuit Court entered on January 25, 1968, dismissing the plaintiff’s action on motion of the defendant, Roscoe Dillon.

The instant appeal grew out of a suit initiated by the plaintiff on August 2, 1962. In her complaint, the plaintiff alleged that on or about September 1, 1961, Roscoe Dillon, while operating a motor coach owned by the Chicago Transit Authority, negligently and carelessly operated the vehicle in such a manner as to injure the plaintiff as she alighted from the bus. An appearance and an answer were filed by the defendant in which he generally denied any negligence on his part.

On November 24, 1965, an order was entered by Judge William S. White, then sitting in the County Department Law Division, dismissing the plaintiff’s cause of action for want of prosecution. The order recited that neither party responded to a pretrial hearing. On the same day, however, the plaintiff’s attorney appeared before Judge White and moved to vacate the dismissal order, stating that his failure to appear for the pretrial hearing was due to being otherwise engaged. Judge White then entered an order that the case came to be heard on plaintiff’s motion to vacate the dismissal of her case, which order recited, in part:

. . . and counsel for Plaintiff appearing late and representing to the Court that he was otherwise engaged and making his motion instanter in open Court to vacate said order of dismissal.
It is hereby ordered that leave be and same is hereby granted Plaintiff to move to vacate the order dismissing said cause entered this date and hearing on the same and the pretrial hearing is entered and continued to December 15th, 1965 at 10:00 a. m. (Emphasis added.)

While the record is silent as to what action the court took on December 15,1965, it would appear that the cause remained pending and awaiting trial.

On August 11, 1967, the plaintiff, after having served notice upon the defendant, went before Judge Harold G. Ward, the Assignment Judge, and moved to set the cause for trial on a day certain. Judge Ward entered the requested order and the cause was set on the trial call “below the black line.” Five days later, on August 16, 1967, the defendant presented a motion to Judge Ward, requesting that the case be removed from the trial call on the ground that the lawsuit had been dismissed for want of prosecution on November 24, 1965, and had never been reinstated. In his order, entered in response to the defendant’s motion, Judge Ward stated that it appeared to the court that the cause had been dismissed on November 24, 1965; that the plaintiff had been given leave to file a petition to vacate the order dismissing the cause; that a hearing had been set for December 15, 1965; and that the order had never been vacated. Judge Ward ordered that the case be removed from the trial call.

The plaintiff then petitioned Judge White, who was then sitting in the Criminal Court, for an order nunc pro tunc as of December 15, 1965, to vacate and set aside the order of dismissal for want of prosecution entered on November 24, 1965. The defendant filed an affidavit in opposition to the plaintiff’s petition. On October 3, 1967, the nunc pro tunc order was entered of record vacating the order of November 24, 1965, as of December 15, 1965. The nunc pro tunc order entered by Judge White recited that the court was fully advised of the premises and had jurisdiction of both the parties and the subject matter.

After more than thirty days had elapsed from the entry of the nunc pro tunc order the plaintiff went before Judge Ward requesting that her cause of action again be placed on the trial call. On January 23, 1968, an order was entered by Judge Ward setting the cause on the trial call “below the black line” on January 25, 1968.

On January 25, 1968, the defendant went before Judge Ward and asked that the case be dismissed. In his motion to dismiss the defendant alleged that (1) the cause had originally been dismissed for want of prosecution on November 24, 1965; (2) an order was entered without notice to or knowledge of the defendant giving plaintiff leave to file a motion to vacate the dismissal and setting the same for hearing on December 15, 1965; (3) no order was entered on December 15, 1965, and the matter remained dismissed for want of prosecution; (4) sometime thereafter, on or about September 8, 1967, plaintiff’s attorney wrote a letter to Judge William S. White in the Criminal Court forwarding the petition to vacate the dismissal order of November 24, 1965, and a copy of the letter and the petition was sent to the defendant’s attorney; (5) the defendant filed an affidavit in opposition to the petition; (6) sometime thereafter, the order of November 24, 1965, was vacated by Judge White, but no copy of the order was ever sent to the defendant’s attorney; (7) the first knowledge the defendant had that the order of dismissal was vacated occurred when he received notice on or about January 17, 1968, that the plaintiff was requesting the case be put on trial call; and (8) the order of November 24, 1965, giving plaintiff leave to file a motion to vacate entered without any knowledge to the defendant is a nullity.

An order was entered by Judge Ward on January 25,1968, which read in part:

[T]he cause was dismissed for want of prosecution Nov. 24, 1965, and with no notice to the defendant leave was given plaintiff to move to vacate .... [N]o order of vacation . . . was entered on Dec. 15, 1965. . . . [P] laintiff wrote Judge White on or about Sept. 8, 1967, and petitioned to vacate said dismissal order with copies to attorney for the defendant .... [D]efendant filed an affidavit opposing said petition. . . . Judge White purported to enter an order vacating the dismissal . . . and no copy or other notice of the entry of said order was given the defendant and defendant’s first knowledge of said order . . . was when he received a notice to put the matter on the trial call. . . .

Judge Ward ordered that the cause be dismissed and this appeal was taken from that order.

The plaintiff contends that an order of one judge cannot be collaterally attacked by a judge of equal, like and concurrent jurisdiction at a later date. Instead, the plaintiff maintains that the defendant’s remedy would have been to appeal to the Appellate Court to reverse Judge White’s nunc pro tunc order.

The defendant replies that his motion was directed solely to the impropriety of Judge White’s order and that his motion was in the nature of a proceeding under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72). The defendant argues that a section 72 proceeding “is the commencement of a suit of law in which new issues are made up and nothing in section 72 or the Supreme Court Rules limits the hearing of the new action to the judge who entered the judgment under attack in the section 72 proceeding.” Furthermore, the defendant contends, there are two bases for employing a section 72 proceeding to make a collateral attack upon a judgment: (1) the court lacked power to enter judgment and (2) the existence of equitable grounds for setting aside the judgment. The defendant maintains that his motion was based on both grounds.

As we review the events that led up to this appeal it appears that three years after the cause was at issue and ready for trial the matter was called for a pretrial hearing before Judge White. He had jurisdiction of the parties and the subject matter. When no one appeared in response to the call the case was dismissed. The only one penalized for failing to appear was the plaintiff who three years earlier had sought redress for personal injuries and was awaiting her day in court. The only party who appeared in court on the day of the dismissal was the plaintiff’s attorney. After he explained why he failed to appear, an order was promptly entered by Judge White continuing the matter to another date. Although the court’s order did not state in exact words that the dismissal order was vacated as it should have, it did recite that the pretrial was continued to December 15, 1965. The record, however, shows that no order was entered on the 15th of December. We conclude that the court clearly intended to vacate the dismissal for want of prosecution as is evidenced by Judge White continuing the pretrial hearing to December 15, 1965, and as is further evidenced by the subsequent nunc pro tunc order.

After the plaintiff’s cause had been removed from the trial call for the first time, the plaintiff petitioned Judge White for a nunc pro tunc order to correct the omission in the order of November 24, 1965, vacating the dismissal order of the same date. Both parties mailed their respective pleadings to Judge White then sitting in the Criminal Court of Cook County. We take judicial notice of this procedure which was used to avoid unduly inconveniencing the opposing attorneys whose law offices were a considerable distance from the Criminal Court. The matter then was not presented ex parte but was submitted to Judge White by both parties. Also, the nunc pro tunc order entered by Judge White vacating the dismissal order disposed of the subject matter of the controversy on its merits.

In our judgment, Judge White had the power to enter the nunc pro tunc order vacating the dismissal for want of prosecution and we so hold. A “ ‘court may, even after the expiration of the term at which a judgment was rendered, correct or amend the entry thereof so as to make it conform to the judgment which the court actually rendered.’ [Citation omitted].” In re Estate of Young, 414 Ill 525, 534, 112 NE2d 113.

The defendant argues, however, that even if Judge White did have the power to enter the nunc pro tunc order, the order is still a nullity, because he, the defendant, was not given notice of the entry of the order. We disagree. The defendant admitted in his written motion to dismiss the case filed on January 25, 1968, before Judge Ward, that he mailed an affidavit to Judge White in opposition to the plaintiff’s petition for a nunc pro tunc order. By mailing an affidavit, the defendant acknowledged that Judge White had jurisdiction of both the subject matter and of the parties. “It has long been held that once a court acquires jurisdiction, it is the duty of the litigants to follow the case.” Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 467, 236 NE2d 719. Therefore, we find that the defendant had, or should have had notice of the entry of the nunc pro tunc order.

Having disposed of the question of Judge White’s power to enter the nunc pro tunc order and whether the defendant had proper notice of that order, we now address ourselves to the question of whether Judge Ward could nullify the effect of the nunc pro tunc order by dismissing the plaintiff’s cause of action. We begin by quoting a firmly established rule in American Jurisprudence :

[A] judgment of a court of competent jurisdiction, having jurisdiction of the subject and the parties by legal process duly served, where no appeal ... or other legal process lies for revising, reversing or affirming such judgment, or where no such process is commenced by the party who would void the judgment in the mode and at the time prescribed by law, is conclusive upon the same parties in any other proceeding in law, in equity, or before any other judicial tribunal. Greene v. Greene, 2 Gray 361.

People v. Sterling, 357 Ill 354, 362, 192 NE 229.

From the facts in this case it is evident that Judge White had jurisdiction of the subject matter and of the parties both when he entered the two orders of November 24, 1965, and when he entered the nunc pro tunc order on October 3, 1967. In addition, the defendant failed at any time to take an appeal from the nunc pro tunc order. Thus, unless there is some other legal process for reversing the order, it is conclusive and is not open to collateral attack.

The defendant maintains that his motion to dismiss the plaintiff’s cause of action filed on January 25, 1968, before Judge Ward, was in the nature of a section 72 petition. Section 72 of the Civil Practice Act simply substitutes a simple remedy by petition for various forms of post-judgment relief theretofore available and enables a party to bring before the court rendering a judgment matters of fact not appearing in the record which, if known to the court at the time the judgment was entered would have prevented its rendition. Brockmeyer v. Duncan, 18 Ill2d 502, 505, 165 NE2d 294. Examination of the defendant’s motion to dismiss in the case at bar discloses that it merely seeks to have Judge Ward review Judge White’s orders as to questions already decided on the merits and is not in the nature of a section 72 petition.

We conclude, therefore, that the defendant’s motion of January 25, 1968, is merely a collateral attack on Judge White’s nunc pro tunc order, not a section 72 petition, and we hold that Judge Ward’s order dismissing the plaintiff’s cause of action should be reversed.

For the reasons assigned, the order dismissing the cause is reversed and the cause is remanded with directions to set the cause on the trial call “below the black line.”

Reversed and remanded with directions.

ADESKO, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Hyman Reiner and Judith Reiner, Plaintiffs, v. St. Paul Fire & Marine Insurance Company, a Stock Company, Defendant. Judith Reiner, Plaintiff-Appellee, v. St. Paul Fire & Marine Insurance Company, a Stock Company, Appellant.
    Gen. No. 53,409.
    First District, First Division.
    February 17, 1969.
    Clausen, Hirsh, Miller & Gorman, of Chicago (Frank L. Schneider and James T. Ferrini, of counsel), for appellant.
    Rosner and Walner, of Chicago (David N. Rosner, Harvey L. Walner, and Barry S. Grossman, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Judith Reiner, brought this action upon a policy of homeowners insurance issued by the defendant, St. Paul Fire & Marine Insurance Company (hereinafter referred to as St. Paul), to recover damages in the amount of $3,000 for loss by theft of personal property.

Plaintiff and defendant each filed a motion for summary judgment based upon the undisputed facts as established by plaintiff’s deposition. Defendant’s motion was denied. The trial court granted plaintiff’s motion on the issue of liability and then, upon a trial on the issue of damages, entered judgment for plaintiff in the amount of $1,500. Defendant appeals from the order denying its motion for summary judgment and the order granting plaintiff’s motion and entering judgment for plaintiff.

Judith Reiner was a student at the University of Michigan, Ann Arbor, Michigan, during the 1965-1966 school year. Miss Reiner rented and lived at Apartment 5-H of University Towers, a student residence building. The apartment and storage locker had been rented by her in August, 1965, under a one-year written lease. Although she was a lessee under the lease throughout the summer of 1966 and remained liable for the payment of rent for such period, she did not enroll in the summer trimester (May to August 1966) and during that period of time resided in her parent’s home at 4250 North Marine Drive, Chicago, Illinois.

Upon leaving school in May, 1966, for summer vacation, Miss Reiner had stored property at the alleged value of $3,000 in her rented locker. In August, 1966, she returned to University Towers to resume her residence for the 1966-1967 school year. She discovered the loss upon returning to her locker to obtain her property preparatory to moving into a new and different apartment.

St. Paul denied the claim then presented by the plaintiff and based its defense upon the clause providing:

Exclusions applicable to property away from described premises:
This policy does not apply as respects this peril (theft) to loss away from the premises of: (a) property while in any dwelling or premises thereof owned, rented or occupied by an insured, except while an insured is temporarily residing therein, .... (Emphasis added.)

Both parties agree that the sole question presented on appeal is one of law, to wit: whether the plaintiff was “temporarily residing” in the leased premises at the time of the theft.

The insurer, St. Paul, contends that while the homeowners policy provides coverage against various risks at the plaintiff’s permanent residence (apartment 2S15-S at 4250 North Marine Drive, Chicago), such coverage is limited to the described premises except under limited circumstances. The policy stipulated that coverage would be nonexistent should the loss occur at a secondary residence, except while the insured is “temporarily residing” therein. The defendant maintains that the plaintiff’s total neglect and abandonment of her apartment and its locker during the entire 1966 summer season cannot be characterized as “temporary residence” therein within the purview of the exception to the exclusion.

Plaintiff contends that she never intended to give up her temporary residence and that her intent was the controlling factor. “The mere fact that . . . [she] was not actually present in her apartment for a short period of time does not mean that she was not temporarily residing there at the time of the theft.” Plaintiff claims that under this policy one need not be physically present to be temporarily residing in the secondary residence. The plaintiff also claims, and we agree, that an insurance contract should be construed liberally and most strongly in favor of the insured and strictly against the insurer. Weininger v. Metropolitan Fire Ins. Co., 359 Ill 584, 195 NE 420. Likewise, if there is any ambiguity created by the contract of insurance the burden should undoubtedly be borne by the insurance carrier.

A situation similar to that in the case at bar is found in Bryan v. Granite State Ins. Co. (La), 185 So2d 310 (1966). There the plaintiff brought an action to recover damages for loss by theft of personal property and the same “off premises” exclusion clause was involved. The loss occurred, not from the described or permanent residence, but from an apartment which the insured held under an oral lease. The apartment was a secondary home maintained for occasional overnight use when the plaintiff and his wife went to New Orleans for social gatherings or to go to the theater. Sometime within a four-day period when the apartment was vacant and the plaintiff was at his permanent residence, the apartment was burglarized. The Court affirmed the trial court’s dismissal of the suit, stating at pp 312-13:

“The policy exclusion is plain and free from ambiguity. The policy does not cover temporary residences per se and in all events. It covers thefts from premises other than the described premises only ‘while an insured is temporarily residing therein.’ To hold that the policy covers temporary residences per se as plaintiffs contend, would be to read out the plain and unequivocal language of the policy, and to read into it something that is not there at all.
“We shall not attempt to define the phrase ‘residing in.’ Its meaning is plain. A person who maintains a permanent abode in New Orleans may own or lease a ‘temporary residence’ on the Gulf Coast which he occupies during the summer months, but he cannot be said to be ‘residing therein’ at a time when he is not occupying the place but is living in the home in New Orleans. As a matter of fact a person may have several cottages, camps or other places of residence in addition to the premises described in the policy which he may occupy from time to time, but he cannot ‘reside’ in all of them at the same time.
“Under the facts of this case we cannot hold that the Bryans were ‘temporarily residing’ in the apartment when the theft occurred. They had not visited the apartment for at least four days and were ‘residing’ in Lacombe at the time. We do not hold, nor does defendant contend, that in order to recover under the policy, the Bryans must have been physically present in the apartment at the time of the burglary. If the theft had occurred on one of the nights that they were staying over at the New Orleans apartment to attend a party or a function at a friend’s home, there would have been coverage even though they had been absent at the time the burglar entered it. They would have been ‘residing in’ the apartment, though not physically present. In the same manner Bryan may be said to reside at Lacombe although he spent his working hours of each day tending to his law practice in New Orleans.”

We agree with the Louisiana Court that the proper construction of the “off premises” exclusion clause is that the insured must temporarily reside in the secondary residence in order to be covered by the homeowners policy insuring the principal residence. Under the facts in the instant case we are constrained to hold that Miss Reiner was not “temporarily residing” in the Ann Arbor apartment when the theft occurred. Cf. Philip Blum & Co., Inc. v. Standard Acc. Ins. Co., 336 Ill App 354, 83 NE2d 605 (abstract). We do not hold, nor does the defendant contend, that in order to recover the plaintiff cannot be absent from the temporary residence for even a short period of time. But here, by plaintiff’s own admission, she remained away from the Ann Arbor apartment for three months.

The rule of construction put forth by the plaintiff, that the language of an insurance contract should be liberally construed in favor of the insured, applies in cases of doubt and ambiguity. However, where there is no ambiguity in the language used, as in the present case, it is the duty of the courts to construe and enforce agreements in accordance with their terms and not to make new contracts for the parties. Blume v. Pittsburgh Life & Trust Co., 263 Ill 160, 104 NE 1031; Crosse v. Supreme Lodge Knights and Ladies of Honor, 254 Ill 80, 98 NE 261. It would serve no useful purpose to discuss the cases cited by plaintiff since they either do not involve insurance policies or are not analogous to the facts in the case at bar.

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

Reversed.

ADESKO, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tommie Mitchell, Otherwise Called Michael P. Lee, Defendant-Appellant.
    Gen. No. 52,970.
    First District, Second Division.
    February 18, 1969.

      Paul J. Galanti, of Chicago, for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Veldman, and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE LYONS. Not to be published in full.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tommie Lee Mitchell (Impleaded), Defendant-Appellant.
    Gen. No. 53,047.
    First District, Second Division.
    February 18, 1969.
    Paul J. Galanti, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Karl Endress, Defendant-Appellee. People of the State of Illinois, Plaintiff-Appellant, v. Ronald Mack Sexton and Roger Knell, Defendants-Appellees. People of the State of Illinois, Plaintiff, v. Ronald Mack Sexton and Roger Knell, Defendants. People of the State of Illinois, Plaintiff-Appellee, v. Hugh A. Henry, Jr., Contemnor-Appellant.
    Gen. Nos. 10,943, 11,009, 11,010. (Consolidated for Opinion.)
    Fourth District.
    February 20, 1969.

      Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, for appellants.
    Donald B. Mackay, Public Defender of McLean County, of Bloomington, Robert E. Williams, William C. Wetzel, and Ralph Schroeder, Special Prosecutor, for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

Karl Endress was indicted for the crime of murder. Ronald Mack Sexton and Roger Knell were indicted for the offense of armed robbery. In each case, prior to trial, counsel for the defendants filed a motion for pretrial discovery asking the trial court to order the State’s Attorney to produce for inspection certain items of physical evidence which would be introduced at the trial. Ultimately the trial court entered orders pursuant to the motions providing for pretrial discovery. In so doing the trial court specifically determined that the defendants could not have a fair trial or justice be served without the ordered pretrial discovery. The State’s Attorney refused to comply with the orders. Motions to suppress the evidence were thereafter filed and allowed. Further, in the Sexton-Knell case the State’s Attorney was adjudged to be in contempt of court and fined $100 for his refusal to comply with the order. This court now has for consideration appeals from the two orders suppressing the evidence and the order finding the State’s Attorney in contempt of court.

Inasmuch as the substantive issues in all three appeals are the same, we have consolidated the appeals for decision and opinion.

The question presented by these cases is: Does a trial court have authority, absent specific rules promulgated by the Supreme Court, to provide for pretrial discovery of items of physical evidence which the People will introduce at the trial? If the answer to this question is in the affirmative, then the remaining issue relates to the question of what sanctions may appropriately be used by the trial court to compel compliance with its discovery order.

The defendant in the contempt proceedings, the then State’s Attorney of McLean County, asserts the invalidity of the orders for discovery contending that there is no basis by statute or rule for pretrial discovery and that, therefore, a trial court is wholly lacking in authority to enter such an order. He persists in classifying these proceedings as “test cases” and urged in the trial court, as well as here, that he would have made the items of physical evidence available to defense counsel prior to trial, and states:

“. . . the expression of the prosecutor was to make the evidence available prior to trial. Thus, the vacating of the orders by the trial court would have had the effect of giving to the defendants that which the trial court desired they be given, . . . .”

We take it to be the position of this appellant, therefore, that but for the order for discovery he would have permitted discovery. Once the order for discovery intervenes in the proceeding, however, he persists in his refusal, apparently only because of the existence of the order. We must observe at the outset that we are unable to understand the effort to distinguish between the absence of power of the trial court to compel discovery because there is no rule or statute and a state’s attorney’s duty to permit discovery except when there is a court order providing for it.

We are referred to two cases by the People which it is asserted are authority for the proposition that there is no such thing as pretrial criminal discovery in Illinois. The case of People v. Hall, 83 Ill App2d 402, 227 NE2d 773 (3rd Dist 1967), was a proceeding wherein there was a motion by the defendant for any written statements or memoranda containing statements made by witnesses for the People given to a law-enforcement officer. The motion was made prior to trial. An order for production pursuant to the motion was entered and thereafter a fine for contempt was levied for noncompliance. The Appellate Court reversed citing and discussing several Supreme Court cases indicating such statements only need be made available at the trial for impeachment purposes. The other case, People v. Hoagland, 83 Ill App2d 231, 227 NE2d 111 (2nd Dist 1967), likewise involved a motion prior to trial. In Hoagland, however, the motion was for an order for production of an entire file for inspection and copying by defense counsel. Upon noncompliance the indictment was quashed. On appeal the Appellate Court reversed holding that there was no unrestricted right to rummage through the files of the police and the State. Both Appellate Court opinions are, of course, in accord with the decision of the Illinois Supreme Court in People v. Moses, 11 Ill2d 84, 142 NE2d 1 (1957), and People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960).

This court considered a similar issue in People v. Sumner, 72 Ill App2d 258, 218 NE2d 236 (4th Dist 1966), and in the same case, at 92 Ill App2d 386, 234 NE2d 537 (4th Dist 1968) (leave to appeal granted, Supreme Court No. 41,368). Our conclusion in Sumner on the right to use of statements for impeachment purposes at the time of trial was in accord with Hall and Hoagland.

Those cases, however, are not determinative of the issue here presented. Pretrial inspection of items of physical evidence which the prosecution intends to introduce at the trial cannot be equated with pretrial examination of statements which may or may not be germane for impeachment purposes. Indeed, the trial court quite correctly drew the distinction by its order in No. 11,009 when it was provided that the prosecution: “. . . produce for inspection for the defense items of tangible evidence which [the] People will introduce at the trial of this case, but that as to statements, reports, documentation, or written investigative matters, the same shall be excepted, . . . .”

In People v. Tribbett, 90 Ill App2d 296, 232 NE2d 523 (4th Dist 1967), we had occasion to consider the right of the defendant to inspect physical evidence prior to trial. In that case we concluded: “In our opinion, tangible objects which the prosecution intends to offer, should be subject to inspection, if such is requested, . . . .” In Tribbett, however, we found no reversible error in a refusal to allow inspection for the obvious reason in that case that the only item of physical evidence sought to be inspected was the defendant’s revolver of which he had knowledge. The Supreme Court, having allowed leave to appeal, affirmed in People v. Tribbett, 41 Ill2d 267, 242 NE2d 249 (1968) (Docket No. 41,225). Relevant to the issue of pretrial inspection of the revolver, the court said at 272 (242 NE2d at 252):

“We deem it unnecessary to consider whether the trial court erred in denying the defendant’s motion that the People ‘make available to counsel for the defendant for inspection all items of tangible evidence which the People have in their possession or control or intend to introduce into evidence.’ The only-so-called tangible object introduced into evidence by the prosecution was his gun which was found in his auto. We can see no possibility that he sustained prejudice through not being able to examine the gun. We said in People v. Bridges, 28 Ill2d 165, 172 [190 NE2d 719, 723 (1963)] : ‘Where there is no evidence to indicate anything other than the defendant’s guilt and it appears that the result would not have been different had the error complained of not occurred, the judgment will not be set aside. People v. Orr, 10 Ill2d 95, 98 [139 NE2d 212, 214 (1957)].’ ”

Thus the opinion of the Supreme Court in Tribbett made no definitive disposition of the issue here, but we read the opinion to be an indication that the defendant had a right to examine the gun but the failure to permit him to do so was not prejudicial error.

In People v. Watson, 36 Ill2d 228, 221 NE2d 645 (1966), the court discusses the right of examination of items of tangible evidence. The court determined that a defendant, in an appropriate case, is entitled to have expert witnesses examine items of physical evidence. It seems to us implicit in such a holding that the right would exist prior to trial. See also the concurring in part and dissenting in part opinion of Mr. Justice Underwood in Watson. See also People v. Cagle, 41 Ill2d 528, 244 NE2d 200 (1969).

In Tribbett we reviewed the cases and philosophy which in our judgment can only lead to the conclusion that a trial court has the inherent authority, in appropriate cases, to order pretrial discovery of items of physical evidence which the prosecution will introduce at the trial. We adhere to that conclusion for the reasons there stated. The orders for discovery here under review were correct and those orders are affirmed.

The next issue, having determined that the orders for discovery were correct, involves the appropriateness of the sanctions. First, we must observe and repeat that the trial court did determine that the defendants in the underlying criminal proceedings could not have a fair trial without the pretrial discovery. Such sanctions as may be used must, therefore, necessarily be designed and structured to obtain the pretrial discovery. In imposing sanctions the trial court is exercising its inherent authority to insure the defendants a fair trial.

An order suppressing the evidence has the effect of decreasing the equality necessary for a fair trial—equality which we discussed in our opinion in Tribbett. We think it is clear that an order suppressing the evidence is a sanction which affects the prosecution and not the prosecutor who refused to comply with the order. It may well be, however, that suppressing nondisclosed yet discoverable items of evidence is an effective method of compelling compliance with the discovery.

Persistent refusal of the State’s Attorney to comply with the orders for pretrial inspection is difficult to understand. If structuring a test case justifies such a refusal, such a test case was admittedly unnecessary in view of the fact that Tribbett was then on review. By his refusal to comply the prosecutor compelled the trial court to seek out a sanction or sanctions that would make effective its orders. His noncompliance, as we view this record, warranted the trial court in imposing a fine for contempt.

We must observe that the trial court has, with firmness and fairness, pursued that which the prosecution and the defense want—a fair trial for both.

Sanctions to be imposed for noncompliance with valid orders promulgated by the trial court present an issue for determination by the trial court. This court, in order to interfere with the sanctions imposed, would have to find an abuse of discretion or arbitrary and capricious use of sanctions. We find none of these in this record. The orders of the circuit court of McLean County, accordingly, would be affirmed.

In People v. Ryan, 40 Ill App2d 352, 189 NE2d 763 (3rd Dist 1963), revd on other grounds, 30 Ill2d 456, 197 NE2d 15 (1964) and Monier v. Chamberlain, 66 Ill App2d 472, 213 NE2d 425 (3rd Dist 1966), affd, 35 Ill2d 351, 221 NE2d 410 (1966), the court considered similar issues, although in civil, not criminal, proceedings. There it was determined that upon compliance, orders imposing sanctions would be vacated. Such result is likewise appropriate here. Accordingly, the orders of the circuit court of McLean County for discovery are affirmed and these cases are remanded to that court with directions to vacate the orders suppressing the evidence and imposing the fine for contempt upon compliance with the discovery orders. In the event of noncompliance the orders suppressing the evidence and imposing the fine for contempt are to remain in full force and effect.

Judgments affirmed and these cases remanded with directions.

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


text:
    Fred H. Housman, Plaintiff-Appellant, v. C. A. Dawson & Co., a Corporation, Defendant-Appellee.
    Gen. No, 10,955.
    Fourth District.
    February 20, 1969.
    Thomas F. Londrigan and Robert Weiner, of Springfield, for appellant.

      Foreman, Rammelkamp, Bradney & Hall, of Jacksonville, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court of Menard County entered upon a directed verdict for the defendant and against the plaintiff at the close of the plaintiff’s evidence in an action alleged to have been caused by defective lumber sold to the plaintiff’s employer by the defendant.

Initially, this appeal was filed in the Supreme Court, it being the position of the appellant that the Supreme Court had jurisdiction on direct appeal because the action of the trial court in directing a verdict deprived the plaintiff-appellant of his right to a jury trial as guaranteed by the state and federal constitutions. The Supreme Court, on motion, transferred the case to this court and in its order of transfer determined that the issue presented on this appeal does not involve a substantial constitutional question as to the right to a trial by jury.

In Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), the Supreme Court observed that it is well-settled that trial courts may constitutionally direct verdicts and that minor variations in the rules governing such action can scarcely render the action unconstitutional. In view of the observation there made and the language of the order of transfer, we believe the issue raised as to the denial of a jury trial by a directed verdict in this case is not a constitutionally debatable issue in the appeal.

We turn now to the merits of this, an essentially products-liability case. The complaint, in three counts, sought to recover from C. A. Dawson & Co. for the injuries incurred. One count stated a cause of action in strict tort liability, one a cause of action in implied warranty, and the other a cause of action in negligence. The issues presented and argued on the pleadings were essentially disposed of by the trial court in its ruling on certain motions to strike and dismiss and amendments to the complaint. As we view this record, the ruling of the trial court on the motion for a directed verdict at the close of the plaintiff’s case raises an evidentiary question—not one of pleadings—and we will so treat it.

The plaintiff, an employee or “hired man” of one Kaymond Wilken, fell and suffered injuries when a two-by-four piece of lumber purchased from the defendant broke under his weight while the plaintiff was constructing a lean-to next to a machine shed on his employer’s farm. The plaintiff had had no experience in building this type of structure nor had he had any prior carpentry experience. His employer wanted to construct the lean-to on one side of a dome-type shed. The lean-to was of pole construction and the structure was described to an employee of the defendant at the time of the purchase of the materials. The two-by-fours were to be used as purlins to support the roof of the structure. Two-by-fours, 14 feet long, were placed over and perpendicular to two-by-six rafters. The rafters were some 39 inches from center to center. The poles and rafters were in place at the time of the injury and the plaintiff was on top of the structure and the two-by-fours had been handed to him. He was nailing them in place, standing for support on a two-by-four between two rafters. The two-by-four broke. The plaintiff fell and was injured.

William A. Oliver, professor of civil engineering at the University of Illinois, was called as a witness for the plaintiff. The witness was a registered structural engineer, a member of the American Society for Testing and Materials, and qualified as an expert as to wood structures and lumber standards. This witness described the two-by-four which broke under the weight of the plaintiff as a piece of variable grade material with a knot cluster. He described the knot cluster in the material and the reasons that the existence of a knot cluster would reduce the strength of the wood. As to the two-by-four under discussion, the witness stated that there was a reduction in strength resulting from the knot caused by cross-graining. He described the two-by-four as of such low strength that it would take a very small load to cause it to fail or to cause it to break. He further stated that upon breaking there would be a sudden break, unlike the breaking of normal wood which breaks with a splintering failure—a slow breaking and one that would give a warning.

Upon cross-examination this witness further stated that a structure in the process of construction should be able to hold any necessary loads caused by the people who are building the structure.

Raymond Wilken, called as a witness by the plaintiff, testified as to the purchase of the lumber from the defendant after having described the shed and the nature of the construction to an employee of the defendant. He further testified that the lumber was loaded in the back of his truck with a forklift at the yard of the defendant. James Harris, a stepson of the plaintiff, who was working with him on the project on the day of the injury, testified that he had handed the two-by-fours up to the plaintiff, and the plaintiff testified as to the manner of the construction, the essentials of which have been previously enumerated.

When asked at the trial whether he had observed anything about the lumber in the way of defects or knots, the plaintiff testified that he did not remember any. On the occasion of an earlier deposition he had stated that he was not looking for any knots and that he had not examined the lumber for the existence of knots.

In directing a verdict for the defendant at the close of the plaintiff’s case the trial court enumerated the areas that were troublesome in the case, i. e., whether lumber is or is not a product, whether or not the lumberyard which did not mill the lumber is properly a party in a products-liability case, and whether or not the lumber which was intended as support for a roof on a machine shed was misused by the plaintiff.

In allowing the motion the trial court observed that a lumber dealer dealing in hundreds of thousands of boards should not have imposed upon him a duty to inspect each and every board when he is only a conduit, a supplier or a distributor, and does not change or alter the product in any way as received from the lumber mill. He concluded the defendant was not a proper party in a products-liability case based upon that fact and the additional fact that there was no showing that the lumber was defective for the use intended.

In our judgment, it was error to direct a verdict. The criterion governing the direction of verdicts in civil cases is now that a verdict should be directed only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967).

For purposes of a products-liability case, lumber is a product. As stated by Prosser in his article, The Fall of the Citadel, 50 Minn L Rev 791, 805:

“All types of products are obviously to be included. The list has ranged from automobiles and airplanes to cinder building blocks, glass doors, and paper cups. There is virtually no indication of any limitation to things that are extremely or inherently dangerous in themselves, in spite of all precautions. . . .” (Footnotes omitted.)

In Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill App2d 315, 229 NE2d 684 (4th Dist 1967), affd, — Ill2d —, — NE2d — (1969), we exhaustively reviewed this court’s understanding of the products-liability field. In affirming Dunham the Supreme Court said at — (— NE 2d at —):

“Strict liability, applied to the manufacturer of the hammer, Vaughan & Bushnell, extends as well to the wholesaler, Belknap Hardware and Mfg. Co., despite the fact that the box in which this hammer was packaged passed unopened through Belknap’s warehouse. The strict liability of a retailer arises from his integral role in the overall producing and marketing enterprise and affords an additional incentive to safety. (Citing case.) . . . .”

One issue remains for discussion—and that issue is whether the injuries of the plaintiff were caused by the defect in the product or whether the injuries were caused by the plaintiff’s misuse of the product so as to preclude recovery. Here, again, Dunham is dispositive of the issue. The court there held that this issue was properly one to be submitted to and resolved by a jury. In the context of this case and this record, it was error to direct a verdict for the defendant, and the judgment of the circuit court of Menard County is reversed and this cause is remanded to that court for further proceedings consistent with the views herein expressed.

Reversed and remanded.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Helton, Defendant-Appellant.
    Gen. No. 10,970.
    Fourth District.
    February 20, 1969.
    Roger W. Thompson, Public Defender of Logan County, of Lincoln, for appellant.
    Warren Peters, State’s Attorney of Logan County, of Lincoln, and Everett B. Johnson, Assistant State’s Attorney, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant was convicted in a jury trial on the charge of rape. He was sentenced to the Illinois State Penitentiary for a term of not less than four nor more than twelve years. This appeal is from that conviction and sentence.

Initially, this appeal was filed in the Supreme Court, but certain constitutional issues sought to be raised were waived and thereafter this case was transferred to this court. In this appeal the defendant-appellant asserts that the evidence was insufficient to establish his guilt beyond a reasonable doubt, it being his contention that there was no showing that the act of intercourse was committed by force and against the will of the prosecuting witness. It is also asserted that the trial court committed error in refusing an instruction tendered by the defendant-appellant stating the law relating to force, resistance and consent and the refusal by the court to give any instruction as to force and against the will of the female. Other issues presented by this appeal relate to rulings on evidence.

From the inception of the trial of this case, the only issue for determination by the jury was whether the defendant had intercourse with the complaining witness, Cheryl Bellatti, forcibly and against her will or whether she consented to the act. The defendant testified on direct examination that he did have intercourse with her but that the act was with her consent. We deem it necessary to review only that portion of the evidence relating to the issue of consent.

On April 9, 1967, the prosecutrix was in the company of her brother Gerald, Mike Bryson, Jack Malone and the defendant. She had joined the four boys at their request that she go for a ride with them. She was induced to do so by a promise that she would be permitted to drive a car referred to throughout as belonging to Paul Helton. The car, in fact, belonged to the defendant’s brother.

The group drove out of the town of Mount Pulaski for some miles. The defendant relinquished the driver’s seat to the prosecutrix and she did drive the car. Ultimately the group drove back to Mount Pulaski to a house or a shack described as a one-room house on the south side of town, in order that the defendant and his friends could get more beer thought to be located in the house. Jack Malone was then living in this house.

Upon arriving at the Malone residence the boys got out of the car but the prosecutrix said that she remained in the car and didn’t get out until urged to do so. She joined the boys in the house and after some few minutes Malone, Bryson and her brother left the house, or at least went outside, leaving her and the defendant alone. She testified that all the boys except her brother had been and were drinking beer. According to the testimony of the prosecutrix nothing was said by anyone prior to the time the three boys left, but Malone, in his testimony, stated that he left with the other two at the suggestion of the defendant who asked that Malone take the car and drive around and come back in half an hour or forty-five minutes. The defendant gave Malone the keys to the car and Malone and the others left in the car.

The prosecutrix testified that while the defendant and she were alone in the house the defendant asked her to sit down in a chair and as she started to sit down he took her by the upper part of her arms, forced her down on the bed, removed her cut-off jeans and underwear, and committed the act of intercourse.

She further testified as to threats by the defendant to kill her if she didn’t cooperate. According to her testimony, after the act, she got up from the bed, dressed herself, searched for and found her glasses, and then left the premises and went to an area near the Mount Pulaski square where she had parked a family pickup truck, then went to a laundromat owned by her father which she and her brother were to have finished cleaning. They then went to a friend’s house to pick up a trailer, and from there home. Her brother, who had been waiting for her at the truck, testified that she acted nervous and was crying. They arrived home at about 1:00 a. m. Upon arrival she told her parents what had happened and, at their request, was examined by a doctor the next day. The doctor testified that he conducted an examination of the prosecutrix. He found scratch marks about both sides of her neck, an abrasion resembling teeth marks near her left inner wrist, and his examination indicated that the prosecutrix had had sexual intercourse.

The defendant testified to essentially the same facts leading up to the arrival at the house. His version of the activities in the house was that after the three boys left he and the prosecutrix talked awhile; that he asked her to come and sit beside him on the bed. After some kissing and hugging he asked her to have intercourse and she agreed.

At the time of this occurrence the prosecutrix was an unmarried woman, 18 years of age. The defendant was 19. She was a senior in high school, was 5 ft., 8 in., in height and weighed about 115 pounds. The defendant was 6 ft., 1 in., tall and weighed about 160 pounds by his own testimony, although one witness indicated he believed his weight to be 180.

The defendant-appellant’s main contention is that the State failed to prove the element of force beyond a reasonable doubt. He relies upon People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962), and People v. Rossililli, 24 Ill2d 341, 181 NE2d 114 (1962), for the proposition that in order to prove the charge of forcible rape there must be evidence to show that the act was cornmitted by force and against the will of the female, and that if she has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will.

The State accepts that proposition as an accurate statement of the law but argues that the evidence here establishes the act to have been by force and against her will, or in any event that the question was one for the jury. We agree.

An accusation of rape may be easily made, hard to prove and harder yet to defend by one ever so innocent. However, it is the function of the jury to weigh testimony, judge the credibility of witnesses and determine factual matters in debatable circumstances. This court cannot substitute its judgment for that of the jury or disturb its finding unless the proof is so unsatisfactory as to cause a reasonable doubt of the accused’s guilt to appear. People v. Daily, 41 Ill2d 116, 242 NE2d 170 (1968), and cases there cited.

The jury here had to determine the issue of force or consent. The defendant tendered an instruction which reads as follows:

“In order to prove the charge of rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. Voluntary submission by the female, while she has the power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape.”

The instruction was refused by the court. In refusing the instruction the court observed that “as to what amounts to consent, I think this is the sort of thing that is best left to argument.” The court further observed that the term “force and against her will” need not be defined to a jury.

Thus the determination was made to refuse the instruction both because of its form and for the further reason that no instruction on the issue of consent or definition of force was to be given. We believe the jury should have been instructed on this issue of the case.

In People v. Fryman, 4 Ill2d 224, 231, 122 NE2d 573, 577 (1954), the court observed:

“A defendant is entitled to have the jury instructed not only as to the law applicable to the state of facts testified to but applicable to any state of facts which the jury might legitimately find from the evidence to have been proved, and a defendant is entitled to the benefit of any defense shown by the entire evidence. (People v. Cash, 326 Ill 104 [157 NE 76 (1927)]; People v. Scalisi, 324 Ill 131 [154 NE 715 (1926)].) The primary defense of the defendant Fryman, in this case, was consent of the prosecutrix. Although offered, no instruction as to the effect of consent or want of consent was given to the jury, except in the language of the statute, ‘forcibly and against her will.’ [Ill Rev Stat 1953, ch 38, sec 490.] (Parenthetical material supplied.) Certain of the instructions tendered in this regard, but refused, were in substantially the same language as a similar instruction which was given and approved in Sutton v. People, 145 Ill 279 [34 NE 420 (1893)]. It was indicated in that case that it was not necessary that the jury affirmatively believe from the evidence that the prosecutrix consented to the act in order to entitle the defendant to a verdict of not guilty, but it was the jury’s duty to return a verdict of not guilty if they entertained a reasonable doubt on that subject, and the defendant was entitled to an instruction to that effect.”

In Fryman the court reversed and remanded for want of the proper instruction. We feel compelled to do so here.

In connection with the refused instruction, we note that the new Illinois Pattern Jury Instructions for criminal cases, which by the terms of Supreme Court Rule 451 (SHA, c 110A, § 451) are effective on and after January 1, 1969, include an instruction (9.02) defining the phrase “by force and against her will.” The Committee Note indicates that the instruction is to be given in those cases where the defense is consent by a conscious and rational female. We believe the conclusion reached by the Committee to be in accord with the cases cited herein.

Although the suggested pattern criminal instructions were not available at the time of this trial, the suggested instruction is in accord with the mandate of the cases mentioned. Having concluded that there was error in refusing to instruct the jury in this case, it is not necessary that we consider the remaining evidentiary questions which, if error, are not likely to recur upon another trial. The judgment of the circuit court of Logan County is reversed and this cause is remanded to that court for a new trial.

Reversed and remanded.

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


author: TRAPP, P. J.

text:
    Marion Ray Brown, Administrator of the Estate of Jacqueline M. Brown, Deceased, and Marion Ray Brown, Individually, Plaintiffs-Appellees, v. Sam Nale, Administrator of the Estate of Rosemary Nale, Deceased, Defendant-Appellant.
    Gen. No. 10,976.
    Fourth District.
    February 20, 1969.

      Edward Litak and Stifler & Snyder, of Danville (Edward Litak and Thomas C. Stifler, of counsel), for appellant.
    C. W. Dukes Law Offices, of Danville (C. W. Dukes, of counsel), for appellees.
   TRAPP, P. J.

A jury returned verdicts for plaintiff, individually for personal injuries, and as administrator of the estate of his deceased wife, and found for the plaintiff as counter-defendant upon the counterclaim of the defendant administrator for the deceased Rosemary Nale. Post-trial motions were denied, and the defendant appeals.

There were no known eyewitnesses to the automobile collision which resulted in the deaths and injuries in issue. The first report of the event was received by the Sheriff’s office of Vermilion County at 12:40 a. m., December 12, 1965, but the source of the report has never been ascertained. The automobiles were discovered at a point 1.1 miles south of the Village of Westville on Illinois Route 1. This highway is described as 48 feet wide, having two lanes northbound and two lanes southbound, but without any median or division separating the respective directions of traffic.

It is agreed that the cars came into collision upon the northbound traffic lane and were found upon the east shoulder but partially upon the pavement, with the right front corner of plaintiff’s Buiek driven some two feet into the left side of defendant’s Chevrolet.

Plaintiff was called but was not permitted to testify upon objection made pursuant to the statute, c 51, § 2, Ill Rev Stats 1965. There is no dispute that plaintiff’s car was northbound. It is the latter’s contention that the car of the defendant’s decedent was southbound, became out of control on a pavement described as wet and slippery and moved into the northbound lanes and caused the collision. This is supported by complex testimony of opinion reconstructing the movement of the vehicles.

It is the theory of defendant that the car of Rosemary Nale was travelling north in the right portion of the northbound lane and that the plaintiff, passing in the left portion of the northbound lane, struck the Nale car and that they ultimately collided with great force. This position is also propounded in complex testimony of opinion reconstructing the event.

There is no issue raised which calls for analysis of the contradictory reconstruction testimony. It is urged that the court erred in admitting testimony in the following categories: (1) testimony as to the “reputation” of the plaintiff for careful driving, and of the reputation of the deceased, Jacqueline M. Brown, for careful habits, and (2) the testimony of three witnesses that they had seen Rosemary Nale driving southward toward the place of collision a relatively short time before.

Plaintiff, individually and as administrator of the decedent’s estate, undertook to prove that each was free from contributory negligence through testimony directed to respective reputations for careful habits. Defendant objected upon the ground that such evidence must concern and relate to habits of care, rather than reputation as to such. This objection was overruled. Defendant had the same burden of proof upon his counterclaim for the death of Rosemary Nale. The witnesses called by the defendant were asked concerning care in the observed driving habits of the decedent. Plaintiff objected to the questions and stated that the testimony must be directed to reputation in the community. The report of proceedings shows a conference off the record, and defendant thereafter framed questions and received answers in terms of the reputation of Rosemary Nale as to driving habits.

The authorities in Illinois support the conclusion that the trial court erred in overruling the defendant’s objection to testimony establishing the reputation of plaintiff and plaintiff’s decedent as to habits of due care. The ruling stated in summary in Gard, Illinois Evidence Manual, § 104:

“As distinguished from reputation for care or lack of care, which is not admissible, evidence of habit may be relevant and admissible on the issue of negligence as a basis for an inference that the conduct in question conformed to the habit.”

Illinois Pattern Instruction, § 10.08 expressed the rule as: “. . . evidence tending to show that the decedent was a person of careful habits. . . .” See also Cleary, Handbook of Illinois Evidence, 1st Ed, § 7.14.

Habits of care are matters of specific conduct and acts while reputation relates to the community estimate or conclusion concerning an individual. In civil cases it may be stated in brief that evidence of reputation is not admissible except in those instances where reputation itself is in issue. Handbook of Illinois Evidence, 1st Ed, §§ 7.4-7.6. In Hughes v. Wabash R. Co., 342 Ill App 159, 95 NE2d 735, the witnesses testified to the observed practices of the decedent in driving. In Ingle v. Maloney, 234 Ill App 151, the testimony offered concerned habits of care as observed by witnesses. See also the cases listed in Lobravico v. Checker Taxi Co., Inc., 84 Ill App2d 20, 228 NE2d 196.

Only two cases are cited by defendant and an extensive albeit not all-inclusive examination of the reported opinions of our courts disclose but two instances in which the opinion referred to reputation of habits of due care. In Illinois Cent. R. Co. v. Prickett, 210 Ill 140, 71 NE 435, the decedent was the engineer of a travelling locomotive which exploded. In speaking of the evidence in terms of the reputation of the engineer for careful habits, the court cited Illinois Cent. R. Co. v. Nowicki, 148 Ill 29, 35 NE 358; and Chicago B. & Q. R. Co. v. Gunderson, 174 Ill 495, 51 NE 708. In neither case was there reference to habits of care in terms of reputation. In Thompson v. City of Bushnell, 348 Ill App 395, 109 NE2d 346, there was, again, an explosion when the city permitted gas to leak into the sewers and such gas, which had accumulated in decedent’s basement, exploded when he lighted papers in his furnace. The opinion does not show that objection was made at the trial to evidence concerning decedent’s reputation as to habits of care and caution. Upon appeal it was argued that the inference of due care must be drawn from evidence of habits, but the court held that there was no reversible error.

Except as to a few individuals in specialized activities it is doubtful that it would be possible to establish habits of due care in relation to major explosions. At any rate, cases of explosions arising under uncommon circumstances are certainly distinct and different from the usual and frequent acts incident to motor travel where habits of care under constantly changing circumstances may be observed.

Since courts seek evidence of the highest probative value available, it is readily apparent that reputation for habits of care, which may arise from an absence of information or knowledge, is of slight significance or assistance as compared with observed instances of specific conduct of such regularity as to constitute and demonstrate habit. In this case it is to be noted that one witness testifying to plaintiff’s reputation had never ridden in a car driven by him, while the second had ridden with him but once some two years before on a trip to the county fair.

It is necessary to decide whether, under the circumstances of this case, the error in admitting evidence of reputation as to habits of care requires reversal and remandment. While defendant objected to the testimony first offered, no motion to strike it from the record has been pointed out and we have found none in the abstract. Each party had the same burden of proof upon the identical issue. One purpose of evidence as to habits of care as an exception to the general rule in civil cases is to make available such evidence of freedom from contributory negligence as would meet the traditional element of the cause of action and avoid a directed verdict. Each party here presented sufficient evidence to present the case to the jury. We find neither cross-examination nor offer of proof which suggests any attempt to impeach the evidence of habit offered in behalf of the plaintiff or defendant’s decedent.

Upon a careful consideration of the facts and issues presented here, we conclude that the point argued by defendant has merit, but that under the circumstances the court’s ruling did not operate to cause such prejudice to the issues presented to the jury, or to the procedure of the trial as to require reversal.

The defendant urges that the court erred in admitting into evidence testimony so remote as to time and distance as to be inadmissible. The three witnesses whose testimony is in issue were acquaintances and contemporaries of Rosemary Nale. They were together, driving about Westville, and they observed Miss Nale leave a friend and drive away in her car. The witnesses casually followed her for several blocks, during which time she was observed to be driving on the highway in the direction of her home in Georgetown. This was the highway upon which the collision occurred.

There is no controversy as to the identity of the Nale car seen in Westville and the car involved in the collision, as in Schneider v. Wedding, 66 Ill App2d 7, 213 NE2d 624. The witnesses ultimately drove to the scene and observed the Nale car.

One witness testified that Miss Nale was first seen between 12:20 and 12:30 a. m. Two witnesses estimated the time as between 12:00 and 12:30 a. m. These witnesses, after making such observation, drove about West-ville and met and talked with an acquaintance. Two of the witnesses estimate that some twenty minutes elapsed between the time of observing Miss Nale travel south and seeing the police car travelling in a southerly direction. The third witness stated that there was conversation for about thirty minutes and that the police car was seen in the latter part of the thirty minutes. The report of the collision was received by the sheriff at 12:40 a. m., so that the observation of the police car was several minutes thereafter.

Upon the argument of the admissibility of the testimony the court stated that it would be admitted in light of the fact that no other evidence was available. At issue is the relevance of the evidence admitted, i. e., the reasonableness of the tendency to prove a material fact. Gard, Illinois Evidence Manual, Rule 81. In the Comment to such Rule, it is pointed out that remoteness in point of time does not necessarily make the evidence irrelevant unless the degree of remoteness is such that it negatives any logical connection with the fact sought to be proven.

Consistent with the testimony of these witnesses, the record contains evidence which the jury could consider, and from which it could infer that the course of travel of the Nale car continued southward. Miss Nale was some 19 years of age and resided with her parents in Georgetown. The witnesses observed that her social engagement appeared to be concluded, and that she was alone some five miles from her home on a stormy winter night. The jury had an opportunity to consider the defendant’s argument that there were places where she might turn around and again proceed north in light of this evidence concerning such circumstances.

The cases in which evidence of driving has been excluded as remote usually concern acts of the driver which can be changed innumerable times within a short span of time and distance, as where a vehicle is driven with a wheel over the center line. Flesberg v. Prince Warehouse Co., Inc., 37 Ill App2d 22, 184 NE2d 813; Hanck v. Ruan Transp. Corp., 3 Ill App2d 372, 122 NE 2d 445, or there is evidence of speed which may quickly be altered or interrupted. Rzeszewski v. Barth, 324 Ill App 345, 58 NE2d 269; Denton v. Midwest Dairy Products Corp., 284 Ill App 279, 1 NE2d 807. The trial court, however, has the discretion to admit evidence where the facts and circumstances support a reasonable inference that the conduct continued from the point of observation to the place of collision. Cooper v. Cox (speed), 31 Ill App 2d 51, 175 NE2d 651; Driessens v. Verkruyse (speed), 46 Ill App2d 87, 196 NE2d 353. In Ryan v. C & D Motor Delivery Co., 38 Ill App2d 18, 186 NE2d 156 (Abst), there were no eyewitnesses. It was there held that the trial court had the discretion to admit testimony that the decedent was observed driving erratically for a distance of four miles to a point within one mile of the place of collision.

This case differs in that the evidence at issue does not purport to relate to specific acts of negligence alleged to be the cause of the collision. It does contradict or raise doubt as to defendant’s theory that the Nale car was being driven north on the highway at the time of the collision. The case must be decided in the absence of eyewitnesses. The direction of travel followed by Rosemary Nale might possibly have been reversed, but such course of travel is not clearly subject to innumerable changes within the span of time and distance which is in evidence. Under the facts and circumstances it is not unreasonable to infer that the Nale car continued to travel south and the testimony does have probative value and relevance. Hence, we cannot say that there was an abuse of discretion by the trial court which constituted error.

The judgment is affirmed.

SMITH and CHAVEN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Helton, Defendant-Appellant.
    Gen. No. 10,992.
    Fourth District.
    February 20, 1969.

      Roger W. Thompson, Public Defender of Logan County, of Lincoln, for appellant.
    Warren Peters, State’s Attorney of Logan County, of Lincoln, and Everett B. Johnson, Assistant State’s Attorney, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant was convicted in a jury trial of indecent liberties and sentenced to a term of not less than ten nor more than twenty years in the Illinois State Penitentiary. The sentence imposed was to run consecutively with a prior sentence of not less than four nor more than twelve years imposed upon his having been convicted of the crime of rape. The latter case, at the time of the sentence in this case, was on appeal to this court and appears in the files of our court as General No. 10970.

No issue is presented by this appeal as to guilt nor are any questions raised asserting error in the trial proceedings. The only issues presented relate to the sentence. The defendant contends the sentence is excessive and that the record does not establish a basis for a consecutive sentence.

After the verdict of guilty a hearing in aggravation and mitigation was held. At the conclusion of that hearing the trial judge observed that he obviously did not consider the fact that the instant offense was committed while the defendant had been admitted to bail pending the appeal of a prior conviction for rape, as a mitigating factor. The prior conviction was on June 28, 1967, in trial proceedings before the judge presiding in the instant case.

The defendant-appellant asserts the prior conviction does not appear in this record and therefore was improperly considered in aggravation here and as a basis for the consecutive sentence. He asserts that while the trial judge and the State’s Attorney might have full personal knowledge of the facts and circumstances of the antecedent case, the court in sentencing in this case was precluded from considering such knowledge. It is asserted that limitations upon judicial notice are here applicable and that in accordance with the views set forth in 14A ILP, Criminal Law, § 226, the court should not take judicial notice of proceedings had in other cases even though shown by its own records.

The duty of a trial judge in a criminal case to sentence and the hearing in aggravation and mitigation are separate and apart from ascertainment of guilt. In People v. Spann, 20 Ill2d 338, 343, 169 NE2d 781, 783-84 (1960), the Illinois Supreme Court quoted with approval from Williams v. New York, 337 US 241, 247, 93 L Ed 1337, at 1342, 69 S Ct 1079, 1083 (1949), Anno, 96 ALR2d 767, as follows:

“ ‘Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant— if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence applicable to the trial.’ ”

See also: People v. Grabowski, 12 Ill2d 462, 147 NE2d 49 (1958); People v. Mace, 79 Ill App2d 422, 223 NE2d 725 (4th Dist 1967); and People v. Biggs, 89 Ill App2d 324, 231 NE2d 626 (4th Dist 1967).

In People v. Biggs, 89 Ill App2d 324, at 327, 231 NE2d at 628, we observed:

“Rigid adherence to restrictive rules of evidence applicable to the trial has no place in searching for information meaningful to the trial judge for use in arriving at a sentence. It seems to us abundantly clear that the trial judge is not only authorized to consider the subsequent criminal conduct of the defendant, but that his failure to do so could well result in sentencing absent the requisite relevant and material information. . . .”

In Biggs, as here, subsequent criminal activity was considered—activity in which the defendant participated while he was out on bail. The trial judge quite properly considered all matters relevant to sentence including the prior conviction and the total conduct of the defendant.

We turn now to the question of the excessiveness of the sentence and the consecutive sentence. It is clear that the trial court considered, and, as we have said, properly considered, the prior conviction as aggravation. On appeal this court has reversed and remanded for a new trial the prior rape conviction. Thus it is not now properly an element of aggravation nor is it now a basis for the imposition of a consecutive sentence as provided by section 1-7 (m) of chapter 38, Ill Rev Stats 1967.

Acting pursuant to the authority of Supreme Court Rule 615 (Ill Rev Stats 1967, c 110A, § 615), and since the original conviction has been remanded for a new trial, it is appropriate that we reduce the minimum sentence because there does not remain, as of now, a prior felony conviction. The consecutive aspects of this sentence must be eliminated for the reason stated. Accordingly, the sentence heretofore imposed of not less than ten nor more than twenty years is changed to not less than five nor more than twenty years. As modified, the judgment of the Circuit Court of Logan County is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Daugherty, Defendant-Appellant.
    Gen. No. 11,017.
    Fourth District.
    February 20, 1969.

      J. Waldo Ackerman, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield, for appellee.
   CRAVEN, J.,

delivered the opinion of the court. The defendant was indicted for armed robbery and entered a plea of guilty. Upon his request for probation the matter was referred to the probation, officer and a probation hearing was held. Probation was denied and the defendant sentenced to a term of not less than four nor more than ten years in the Illinois State Penitentiary. This appeal is from the sentence imposed, it being the contention of the defendant that the sentence is excessive and the trial court considered inadmissible evidence in fixing the sentence.

The probation report that was filed had appended to it a statement from the Department of Public Safety, Bureau of Criminal Identification and Investigation, with reference to one Eugene Daugherty, listing a series of encounters with police departments commencing in 1947. The probation report asserted that the defendant had been arrested “approximately 100 times since 1943 and this is not counting the year 1967.”

The probation report further observed that the defendant had twice been in and out of jail subsequent to his release on his own recognizance in connection with the instant armed-robbery charge.

The defendant contends that it was error to consider the matters on the “rap sheet,” some of which involved charges upon which there was no showing of ultimate disposition. Nothing on the “rap sheet” indicated a prior felony conviction although there was an indication of some prior felony charges.

In People v. Jackson, 95 Ill App2d 193, 238 NE2d 196 (1st Dist 1968), the court held that arrests or other encounters with the law which have not resulted in convictions are inadmissible at the hearing in aggravation and mitigation in arriving at the punishment or sentence for the crime charged. This statement by the court is amply supported by citation of authority, and we agree. In this case, however, in addition to the report of the probation officer, including the “rap sheet,” there was testimony of four witnesses—all of whom were called by the defendant—and from these four witnesses it is readily ascertained that the defendant is an alcoholic and has been regularly in and out of jails for twenty years. The felony charges shown on the “rap sheet” which did not result in convictions were explained by him. Testimony by the other witnesses as to his frequent arrests and incarceration was received without objection. Indeed, one instance was indicated where the defendant was released from jail at nine o’clock in the morning to resume his employment and was incarcerated for drunkenness before five o’clock on the same day.

While we are in agreement with our colleagues in the First District in the case of People v. Jackson, when evidence of arrests or other encounters with the law which have not resulted in convictions is received and explained away by the defendant without having made objection thereto, any error in their receipt in evidence has been waived. We are of the opinion that evidence of conviction of noninfamous crimes is admissible in connection with the hearing in aggravation and mitigation, or probation, and that in that proceeding the sentencing judge is not limited to the narrow issue of guilt and limitations of evidence applicable to a trial. See People v. Helton, 106 Ill App2d 246, 245 NE2d 4 (4thDist 1969).

Here, unlike the situation in the Jackson case, it does not appear, nor is it even suggested, that in sentencing the defendant the trial court gave consideration to and placed weight upon the inadmissible material shown by the “rap sheet.”

Here, the crime of armed robbery, to which the defendant entered a plea of guilty, was and is a serious offense. Sentencing one for criminal conduct who is a chronic alcoholic is at best a difficult assignment. The sentence imposed here is not one imposed by reason of the fact that the defendant is an alcoholic. The sentence is for the crime of armed robbery. His addiction to alcohol, whether psychological, physiological or just plain choice, is a meaningful item to be considered at the time of the imposition of sentence. See the majority and dissenting opinions in Powell v. Texas, 392 US 514, 20 L Ed2d 1254, 88 S Ct 2145 (1968).

We learn from this record that the defendant has been in and out of the county jail, in and out of the city jail, in and out of the State Penal Farm at Vandalia, and in and out as a patient of the State Hospital in Jacksonville, wherein he underwent treatment for alcoholism. The willingness of our social system to face up to the issue of alcoholism may be a long time in coming. As the court noted in Powell, our knowledge of this area is comparatively primitive. The medical profession as a whole, and psychiatrists in particular, have been severely criticized for the prevailing reluctance to undertake the treatment of “the drinking problem.” There the court was dealing with punishment of alcoholics for public drunkenness. Here we are dealing with specific criminal conduct and admitted propensities toward criminal conduct that have their base in alcoholism. While the underlying problem may be the same, the consequences under our system of criminal jurisprudence are different.

Considering, as the trial court did here, the history of this defendant, his problem and his probability of rehabilitation, we cannot say that the sentence is excessive. The judgment and sentence appealed from are affirmed.

Affirmed.

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


author: CREBS, J.

text:
    Russell L. Sappington, Plaintiff-Appellant, v. Sparta Municipal Hospital District, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 68-89.
    Fifth District.
    February 20, 1969.
    Dixon & McDonnell, of Belleville (Joseph B. McDonnell, of counsel), for appellant.
    Pope and Driemeyer, of East St. Louis (John T. Pierce, Jr., of counsel), for appellee.
   CREBS, J.

Plaintiff’s complaint for personal injuries was dismissed on motion for failure to file a written notice within six months of the date of his injury as required by chapter 85, § 8-102, Ill Rev Stats 1967.

The sole question to be determined is whether such notice was necessary.

Plaintiff contends that a hospital district is not a local public entity as contemplated by the statute. Chapter 85, § 1-206, Ill Rev Stats 1967, reads as follows: “ Local public entity’ includes a county, township, municipality, municipal corporation, school district, school board, forest preserve district, park district, fire protection district, sanitary district, and all other local governmental bodies. It does not include the State or any office, department, division, bureau, board, commission, university or similar agency of the State.”

The main argument in this case has been over the definition of municipal corporation. Plaintiff cites chapter 24, section 1-1-2 (1) as authority for holding that it does not cover a hospital district. Defendant cites chapter 28, section 1265, as directly holding that a hospital district is a municipal corporation. What is meant by the term municipal corporation varies to some extent and is determined by the context in which the term is used. The definition in the Municipal Code referred to above starts with the phrase “in this code” and as the Municipal Code is also commonly known as the Cities and Villages Act, it is not surprising that the definition limits the term “municipal corporation” generally to cities, villages and incorporated towns.

However, if we used this definition in construing the statute here involved there would be no reason to have also mentioned “municipality” in the statute. Reading the statute as a whole, we hold that a hospital district is a municipal corporation as the term is there used. Further, even if we were to assume for the purposes of argument that a hospital district was not a municipal corporation, as the term is used in this statute, it would then necessarily be covered by the phrase “all other local governmental bodies.” It is significant that the plaintiff has not even argued that a hospital district comes under any of the types of governmental bodies directly excluded by the statute.

Plaintiff next contends that since he was taken immediately after the accident to the hospital as a patient, and that during his treatment the first three days after the accident, the hospital obtained the basic information required in the notice, that under these circumstances the giving of a formal notice was unnecessary. This argument sounds good until it is analyzed. The giving of a formal notice permits the defendant time to attempt to settle the case before suit is filed. It also lets them know they are about to be sued so they can prepare their defense. In these days when defendants are often insured, the notice requires the defendant to notify his insurance carrier. None of these things are accomplished without the formal notice. Also, a large organization is departmentalized. The fact that one department has knowledge does not mean that this information is known to another department. In this case, the patient’s history taken by a treating doctor or a nurse is not likely to be passed on to the hospital’s legal counsel. The formal notice required by statute ordinarily would be.

For these reasons we hold that the formal notice was required in this case.

Finding no error, the order of the Circuit Court of Randolph County dismissing the suit is affirmed.

Affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Count (Impleaded), Defendant-Appellant.
    Gen. No. 51,288.
    First District, Third Division.
    February 20, 1969.
    Rehearing denied March 20, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman 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 Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was found guilty of armed robbery and sentenced to serve a term of 30 to 60 years in the State Penitentiary. His sole defense was insanity. On appeal he contends that he was not proved sane beyond a reasonable doubt, that erroneous forms of verdict were given to the jury, that the jury was improperly instructed on the issue of insanity and that the State’s Attorney’s closing argument was improper and prejudicial. The facts are not in dispute.

On February 15, 1965, at 7:15 p. m., defendant entered a jewelry store at 2721 Milwaukee Avenue in Chicago. He was wearing sunglasses and his hat was pulled down over his face. At gunpoint he ordered the owner and four employees to move to the rear of the store and to give him cash and “the big diamonds.” As he was picking up the diamonds, one of the employees struck him and the owner grabbed for his gun. During the struggle the gun was fired four times, one shot going through the shoulder of another employee. A lengthy struggle ensued during which the defendant was hit over the head with a mirror and smashed repeatedly with the gun butt. Finally he ran out of the store through the front door and escaped in a waiting car which was driven by another man. The car was stopped in the vicinity of the crime by a police officer who later identified defendant. Defendant escaped from that encounter but was arrested the following day in a hotel. At the time of his arrest he denied he was Charles Count. He was taken to a police station where he admitted the crime.

A hearing was held to determine defendant’s competency to stand trial. Dr. William H. Haines, director of the Behavior Clinic of the Criminal Court of Cook County, testified that defendant understood the nature of the charge and was able to cooperate with counsel. The case proceeded to trial and the facts as before related were proved by the State.

In support of defendant’s plea of insanity his mother testified that as a child his behavior was unusual and that he had been destructive. Defendant testified that he did not remember any of the facts relating to the crime and that his memory had lapsed from the time he entered the jewelry store until the time of his arrest. Dr. Geoffrey L. Levy, a psychiatrist testifying for the defense, said that after a two-hour examination of defendant in the County Jail on January 12, 1966, it was his opinion that defendant suffered from an impulse character disorder, that certain of his impulses were “so compelling and impelling that he acts on the impulse, on the evoked impulse rather than assessing the situation as it really is,” and that such impulses are “irresistible and overwhelming.” He concluded that at the time of commission of the crime the defendant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Dr. Haines testified in rebuttal that from his examination of the defendant after the crime he could not form an opinion as to the defendant’s sanity at the time of the crime and that no doctor could form an opinion as to defendant’s sanity merely from an examination made after the crime, since anything defendant then said would be self-serving.

Defendant contends that the testimony of Dr. Levy that he was subject to irresistible impulses and that the crime was committed while he was under the influence of such an impulse was uncontradicted and unimpeached. Prom this the defendant argues that the State has not proved his guilt beyond a reasonable doubt.

A person is not criminally responsible for his conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Ill Rev Stats, c 38, § 6-2 (1967). While a man is presumed to be sane, it is now the law of Illinois that once evidence of insanity is introduced, the ordinary presumption of sanity does not prevail and the burden devolves on the State to prove that at the time of committing the act, the accused was legally sane. People v. Le May, 35 Ill2d 208, 220 NE2d 184. Accepting this principle as now laid down, we feel that the evidence in this case amply supports the submission of this issue to the jury and their finding of defendant’s sanity at the time of the occurrence.

The record does not support defendant’s contention that Dr. Levy’s testimony as to defendant’s insanity was uncontradicted and unimpeached. Dr. Haines testified that no psychiatrist could make an accurate assessment of defendant’s impulses at the time of a crime committed eleven months earlier. He was of the opinion that anything defendant told a psychiatrist in an examination made for the purpose of determining his legal sanity would be self-serving and unreliable. This finds support in common sense and in People v. Hester, 39 Ill2d 489, 237 NE2d 466, where the court said (p 510):

“It is our rule that a doctor who examines a patient merely for the purpose of qualifying as a witness ordinarily may not testify as to his medical opinions based upon subjective symptoms described by the patient because of the absence from this relationship of the normal trustworthiness accompanying symptomatic descriptions by a patient to a treating physician.”

While in the instant case Dr. Levy’s testimony was admitted and no question is raised on that point, nevertheless the credibility and weight of such testimony is for the jury to decide.

In addition to Dr. Haines’ testimony, other evidence adduced at the trial contradicted Dr. Levy’s conclusion that defendant was acting under an irresistible impulse when he robbed the store. Dr. Levy in describing the effect of the alleged irresistible impulse testified that it lasts very briefly, perhaps only a second or two, and that during such impulse the victim has noticeable facial changes. The evidence here reveals that defendant planned the robbery enough in advance to have a companion in a car waiting for him. Nor did the four witnesses to the robbery testify that the defendant displayed any unusual facial expressions, as described by Dr. Levy. On the contrary, two of the witnesses testified that he was calm and not nervous. The jury could conclude that defendant at the time of the crime was sane beyond a reasonable doubt.

Defendant’s second contention is that the jury was improperly instructed on the issue of sanity; that five of the instructions were erroneous or confusing and that as a result the defendant was deprived of a fair trial. Three of the five instructions were submitted by defendant. It is well settled that a defendant may not challenge on appeal the propriety of instructions tendered by him. People v. McGregor, 26 Ill2d 239, 186 NE2d 309. The only exceptions to this general rule are claims of incompetency of counsel or claims of violation of due process. People v. McCoy, 80 Ill App2d 257, 225 NE2d 123; People v. Bender, 20 Ill2d 45, 169 NE2d 328. Neither of these exceptions are found in the instant case.

Defendant contends moreover that two of the State’s instructions were meaningless and confusing. One reads as follows:

“The court instructs the jury that the insanity of the defendant either before or after the commission of a crime cannot excuse the crime. Only insanity existing at the very time of the crime can excuse the same.”

The instruction correctly states the law and is relevant to the present case since defendant contends he was under the influence of one of his alleged irresistible impulses for a considerable period after the robbery.

The second instruction complained of stated that a person is not criminally responsible for his conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Defendant contends it was error for the court not to instruct the jury that the above referred to insanity. From the context of the other instructions given by the court it is clear that the instruction related to the issue of sanity. The instructions were not confusing and there was no prejudice to the defendant.

Defendant’s third contention is that the verdict forms submitted to the jury were confusing. The Illinois Criminal Code provides that when the affirmative defense of insanity is presented during trial, the court shall provide the jury not only with general verdict forms, but also with a special verdict form of not guilty by reason of insanity. In the event the jury reaches that verdict it shall state whether or not the defendant has recovered from his former condition of insanity. Ill Rev Stats, c 38, § 115-4 (J) (1967). In the instant case the court submitted to the jury four special forms of verdict. The first of these alternative special verdict forms was for use in the event the jury found defendant was not guilty by reason of insanity and also that he had not recovered from such insanity. A second form was for use in the event defendant was found not guilty by reason of insanity but was found to have recovered from such insanity. A third form was for use if defendant was found guilty and that he was sane at the time of the crime and presently sane. The fourth form was for use if the jury found defendant guilty and also found that defendant was sane at the time of the crime but had become and was presently insane.

Defendant contends that those portions of the third and fourth verdict forms which provided for finding as to his sanity at the time of the trial were unnecessary and confusing to the jury. We agree that such a finding was unnecessary if the jury found defendant guilty, as it did. The Criminal Code requires that the jury make a determination of whether the defendant recovered from his former condition of insanity only if it finds him not guilty because of insanity. Ill Rev Stats, c 38, § 115-4 (J) (1967). Even though such a finding was unnecessary in the instant case, its inclusion in the verdict forms could not prejudice the defendant.

Defendant’s fourth contention is that he was prejudiced by several remarks made by the State’s Attorney during closing argument. The prosecutor stated that defendant would receive help for a mental disorder in the penitentiary and that he could be retried if found insane and subsequently recovered. In view of the fact that these remarks were stricken and the jury admonished to disregard them, no prejudice resulted to defendant.

The prosecutor also stated, “I say Charles Count is a professional stickup man and a habitual criminal. He is a bad guy. The irresistible impulse is bull.” That was a brash and unprofessional comment. However, since there was evidence of defendant’s past crime introduced by the defense in the course of the trial, this was a proper inference to be drawn from the evidence. People v. Kemp, 29 Ill2d 321, 194 NE2d 217; People v. Allen, 73 Ill App2d 256, 219 NE2d 653. Moreover, no objection was made to that statement at the time of trial and defendant is deemed to have waived any error which resulted. People v. McElroy, 30 Ill2d 286, 196 NE2d 651; People v. Winters, 29 Ill2d 74, 193 NE2d 809. Finally the prosecutor stated, “But you know, ladies and gentlemen, all they have to do is try and confuse one of you or mislead one of you. That’s all they have to do.” Such personal attacks on counsel are unprofessional, but they do not warrant a reversal. People v. Burnett, 27 Ill2d 510, 190 NE2d 338; People v. McElroy, 30 Ill2d 286, 196 NE2d 651.

We find no reversible error in the record and the judgment is accordingly affirmed.

Judgment affirmed.

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