author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bennie Fort, Defendant-Appellant.
    Gen. No. 53,763.
    First District, Third Division.
    January 8, 1970.

      Kenneth L. Gillis, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Bennie Fort was indicted for aggravated battery. One count of the indictment charged him with causing great bodily harm, the other with using a deadly weapon. In a jury trial, he was acquitted on the first count, convicted on the second and sentenced to a term of one to three years in the penitentiary.

He contends that the evidence did not sustain either the charge of aggravated battery or the use of a deadly weapon, that he was not proved guilty beyond a reasonable doubt, that improper argument influenced the jury’s verdict, and that error was committed by permitting the State to prove facts which were not set forth in its bill of particulars.

David Andrews, a 19-year-old college student, testified that in April 1967, as he was returning home about 10:00 p. m., he was approached by two youths, the defendant Fort and Larry Felder. Felder asked him where he lived, where he was going and whether he was a “Ranger.” When Andrews replied that he was not a Ranger and was going home, Felder moved close to him; Andrews hit him and they started to fight. When Fort, who had said nothing, joined in the fight, Andrews withdrew and they chased him.

On May 13, 1967, they accosted him again. Andrews testified that Felder confronted him while Fort, who was carrying a small phonograph and some records, stood nearby. Felder thrust his face within three inches of Andrews’ and Andrews attempted to kick him. Fort placed his phonograph and records on the ground and he and Felder exchanged blows with Andrews. Andrews bent down to tackle his assailants and Fort struck him on the back of the head with a stone, drawing blood. Andrews then picked up a large brick and started after them, but the brick was too heavy to throw and he dropped it on Fort’s records. Fort and Felder grabbed some fence pickets and chased Andrews. They threw the pickets at him, striking him in the back as he ran away. They pursued him into an apartment building but he eluded them and escaped.

A few minutes after Andrews came out of the building he saw Fort, Felder and a third youth, Lawrence Pickens. He fled and they ran after him. He took refuge in the foyer of a hotel and tried to hold the door against them but was unsuccessful. They pulled the door open and Felder threw a bottle which hit him in the same place where the stone had struck him. Although he was bleeding profusely, he struggled with them until they departed. Andrews was hospitalized and five stitches were required to close the lacerations in his scalp.

Fort denied meeting Andrews in April. He was corroborated in this by Felder and another witness. Both testified that the witness was the person with Felder on that occasion and that Andrews, without provocation, kicked Felder and then ran away.

Fort testified that when he and Felder met Andrews on May 13th, he leaned against a fence and listened to a record while Felder stopped Andrews to ask why he had kicked him when they last met. Andrews, he said, backed up and asked Felder if he wanted to fight. He said that Andrews started the fight by kicking Felder and him; that he was kicked in the stomach with such force that he almost was knocked down and did drop his phonograph. Andrews picked up a big brick, struck them with it and chased them. After he saw Andrews break his records, he and Felder secured sticks about the size of fence pickets, turned on Andrews, pursued him and threw the sticks at him. Andrews ran into an apartment building; they looked for but could not find him. They saw him again as he ran into the hotel and they went after him. He was holding the door but they forced it open. Felder threw a bottle which he had picked up on the way and it struck Andrews in the head. After this Fort and Andrews fought and wrestled. Pickens got in the fight and was beating Andrews too; When Fort saw that Andrews was bleeding he told Felder and Pickens, “That is enough, let’s go.” They walked out of the hotel, but police had arrived at the scene and they were arrested soon afterwards.

Felder’s testimony about the events of May Í3th was similar to Fort’s. Another defense witness, a youth who said he saw the altercation, testified that Andrews approached Fort and Felder and started kicking them. On cross-examination, however, he said that he did not see what occurred before the kicking; he also said, in contradiction to Fort and Felder, that the fight ended with Andrews chasing them.

No matter how the evidence is viewed, it establishes the charge of aggravated battery and the use of a deadly weapon. If Andrews’ testimony is accepted he was struck with a stone and a bottle; if Fort’s testimony is accepted Andrews was struck with a bottle. Both the stone and bottle, when used as described, were deadly weapons within the statutory definition of that term. Ill Rev Stats 1967, c 38, Art 24, § 24r-l (a) (2); c 38, § 33A-1. The two statutes specifically proscribe certain weapons and contain general prohibitions against any other deadly or dangerous weapon or instrument of like character. A deadly weapon has been defined as “an instrument that is used or may be used for the purpose of offense or defense and capable of producing death.” People v. Dwyer, 324 Ill 363, 155 NE 316 (1927). An instrument which is not deadly per se may become so by the manner in which is it used. Acers v. United States, 164 US 388 (1896); People v. Carter, 410 Ill 462, 102 NE2d 312 (1951).

If Andrews’ testimony is believed, Fort and Felder were the aggressors. They molested him and cornpelled him to fight in self-defense; they attacked him and forced him to take refuge in an apartment building and a hotel. If Fort’s testimony is believed, Andrews was approached in a friendly manner but responded belligerently. He kicked them, chased them and destroyed Fort’s property. Thereafter, according to Fort, they armed themselves with fence pickets, chased him into a building, searched for him, pursued him into, a hotel, forced open the door, hit him with a pop bottle which Felder had picked up for that purpose and, reinforced by a friend, beat him until his bleeding prompted them to withdraw. Under either version, Andrews gave up the fight and ran from the scene. Even if Andrews initiated the encounter, Fort and Felder became the aggressors. The right to defend oneself does not permit the pursuit and injuring of an aggressor after the aggressor abandons the quarrel. People v. Peery, 81 Ill App2d 372, 225 NE2d 730 (1967).

In his final argument the prosecutor told the jury that by his testimony “. . . Bennie Fort just made a confession from the witness stand. . . .” This is claimed to be prejudicial error. Although the word “confession” was ill-advised, we find nothing prejudicial in the prosecutor’s comment. Fort’s testimony was inculpatory. His own testimony made him as responsible as Felder for striking Andrews with the bottle. Statements by the prosecution which are predicated on the evidence or on reasonable inferences deducible therefrom do not transcend the bounds of legitimate argument. People v. Williams, 38 Ill2d 115, 230 NE2d 224 (1967). Moreover, no objection was made at the trial to the prosecutor’s remark and, since it was not one that prevented the defendant from receiving a fair trial, further consideration of the present objection is not required. People v. Payton, 82 Ill App2d 51,227 NE2d 87 (1967).

In answer to the defendant’s request the State filed a bill of particulars which stated that the deadly weapon used by Fort was a brick and that this was the weapon which the State would rely on to prove his assault. At the trial, as we have seen, the State presented evidence concerning the bottle incident as well as the prior incident with the stone or brick. The defendant contends that the trial court erred in permitting proof of facts at variance with the bill.

The effect of a bill of particulars is to limit the evidence to the transactions set out in the bill. Ill Rev Stats 1967, c 38, § 111-6; People v. Parker, 355 Ill 258, 189 NE 352 (1934). However, it must be remembered that there were two counts in the aggravated battery indictment: one that the defendant used a deadly weapon, the other that he caused great bodily harm. While the bill of particulars limited the State’s proof as to the former, it did not as to the latter. Evidence concerning the battery in which the bottle was used was relevant to the charge of causing great bodily harm. The fact that the jury found the defendant not guilty on this count is immaterial; the evidence was relevant at the time it was offered and received. The defendant not only did not object to the evidence concerning the bottle, he testified freely about it, and he did not raise the issue in his written motion for a new trial.

The State’s evidence established that Fort committed an aggravated battery with a deadly weapon by striking Andrews with a stone. Andrews struck out at Felder but he did so only after Felder had provoked him by a face-to-face confrontation. Although he was well aware, from his April experience, that Fort would join Felder in whatever fight ensued, he stood his ground. He directed no blow at Fort until Fort started after him. Throughout the fight Andrews used only his hands and feet. The fact that he was about to tackle his adversaries did not justify Fort’s striking him with a stone. They weré two to one against Andrews; he had brandished no weapon and Fort had no reason to believe himself in danger of receiving great bodily harm.

A person is justified in the use of force only when, and to the extent, that he reasonably believes such conduct is necessary to defend himself against another person’s imminent use of unlawful force. He may use force which is likely to cause great bodily harm only if he reasonably believes such force is necessary to prevent great bodily harm. Ill Rev Stats 1967, c 38, § 7-1. Fort’s escalation of force, which resulted in- splitting Andrew’s scalp and spattering his suit with blood, was wholly disproportionate to his own defense and was completely unjustified.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Nathan Dvorson, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, and Sidney D. Smith, Commissioner of Buildings of the City of Chicago, Defendants-Appellants.
    Gen. No. 53,949.
    First District, Third Division.
    January 8, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.
    David Chaimovitz, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In March 1968 the City of Chicago issued a building permit authorizing the plaintiff to construct a 56-apart-ment building. In September 1968 the permit was revoked. The plaintiff filed a complaint for declaratory judgment and a petition for an injunction to restrain the City from interfering with the construction. The defendant’s answer admitted that the permit had issued but asserted that it became void because construction was not begun within six months from the date of its issuance as required by the Municipal Code of Chicago. The answer also denied an allegation in the complaint that the requisite zoning classification was in effect from the time the plaintiff acquired the property in 1963 until the permit was cancelled in 1968. After a hearing on the issues, the trial court ruled that the plaintiff had a right to proceed and enjoined the City and the commissioner of buildings from interfering with the construction of the proposed building. A motion to vacate the decree was denied.

The evidence at the trial and the undenied allegations in the complaint (Ill Rev Stats 1967, c 110, par 40(2)) established that the property was purchased in 1963 and that it was zoned R-4, a classification which permitted multiple-apartment buildings. In 1966 the plaintiff employed an architect to consult with the City’s building department to find out how many apartments could be built under the R-4 zoning. The architect prepared plans and specifications which were submitted to the department in March 1966; the plans, which called for 56 apartments, were approved by the City. The plans were also submitted to the Federal Housing Administration, which made a preliminary commitment in response to the plaintiff’s request for a mortgage loan. An agreement was made to pay the architect $49,000 for his plans and for his supervision of the project, and $32,670 of the fee was paid on account. The plans were completed, a firm commitment was received from the Federal Housing Administration and a building permit was issued by the City on March 6,1968, for which the plaintiff paid $1,672. In addition to the architect’s fee and the permit fees, the plaintiff invested $90,000 in the land, paid the Federal Housing Administration an examination fee of $2,811 and became obligated to subcontractors who were engaged to construct the building.

The plaintiff testified that after successful negotiations with the Federal Housing Administration for a larger loan he employed a survey company to stake out where the building would be placed on the land, and to prepare grades and sidewalks. He said that men from the company were working on the property on September 4, 1968, and that the contractor’s construction trailer was stationed there on September 6th. He did not visit the site on September 5th. An associate of the plaintiff testified that he saw the men survey the land, drive stakes into the ground and do other preliminary work on both September 4th and 5th and that the trailer was parked on the property on the 5th.

An inspector for the City’s building department testified that he observed no activity at the property on September 9th and 10th. He looked for stakes but found none. He stated that he would not consider the placing of surveyors’ stakes as the beginning of construction; that in his opinion and according to his department’s instructions, construction starts the moment excavation begins. On cross-examination he said he had been informed that a truck had been on the property and men had been there. He also said that he did not enter the property itself but just walked along the front of it and on its perimeter, and that he thought he would find stakes on the comers of the lot. He acknowledged that laying out building lines was a necessary preliminary to construction and that this was an integral part of excavation.

From the testimony and the exhibits the trial court found that the plaintiff, in reliance on the R-4 zoning, had made a large investment and had become liable for substantial sums of money. The court held that a vested right accrued to him and that the permit, therefore, was in full force and effect. The court also found that it was more probable than not that the staking did take place on September 4th and that this constituted construction within the meaning of the Municipal Code.

The defendants’ first contention is that the plaintiff did not prove that the plans for the building complied with the zoning classification in effect at the time the permit was issued. The evidence was undisputed that the property was zoned R-4 when the plaintiff bought it in 1963 and it was zoned R-4 in 1966 when the City approved the plans and specifications for a 56-apartment building. Circumstantial as well as direct evidence can be used to prove facts. Although the plaintiff did not testify that the property was zoned R-4 in March 1968 when the plans were formally approved and the permit received, the fact that the City issued a permit based on the plans justified the inference that the same zoning prevailed in 1968 as in 1966 and 1963. The plaintiff met his burden of proof and the evidence adequately supported the court’s decree.

The principal issue at the trial was whether construction of the building commenced within six months after the issuance of the permit. The defendants contend that the court erred in finding that it did. The first question arising under this issue concerns the evidence ; the second involves an interpretation of the City’s ordinance. The plaintiff’s evidence showed that two days before the expiration of the six-month period, two men surveyed the land, determined the grade of the lot, placed marks on the sidewalk and drove stakes into the ground, and that on the following day a construction trailer was at the site. The City’s evidence was that a building inspector visited the property a number of times, including September 9th and 10th, and saw no activity. He also said that on one of those days he looked for surveyor’s stakes in the high grass and found none.

In a nonjury trial the court must determine the credibility of the witnesses and the weight to be given to their testimony. His decision will be upheld unless it is against the manifest weight of the evidence. Hood v. Brinson, 30 Ill App2d 498, 175 NE2d 300 (1961). The court’s finding that the property was surveyed and stakes laid on September 4th was supported by substantial evidence.

The second question is whether determining the grade of the lot and placing stakes and other marks on the ground locating the position of the planned building constituted compliance with section 43-9 of the Municipal Code which provides:

“If, after a building or other required permit shall have been granted, the operations called for by such permit shall not be begun within six months after the date thereof, such permit shall be void. . . =”

The City’s argument is that an owner of a lot does not need a building permit to have his property surveyed; that an owner could have this done at any time to determine the feasibility of a prospective building or to decide whether a contemplated venture was advisable. The instant case differs from the City’s example. Here, the stakes and markings laid out a particular building for which the plans were drawn and which was about to be erected; they were not used for the possible construction of an unplanned building in the distant future.

“Operations” is a broad term encompassing more than excavation into the earth preparatory to fabrication of a building. Surveying the lot upon which a building is about to be erected and laying out stakes marking its location are integral parts of the construction process. They are prerequisite to excavation and are within the “operations called for” by a building permit.

Within thirty days after the decree the City filed a motion to vacate on the ground of newly discovered evidence. The motion alleged that at the time the permit was issued in March 1968 part of the property was not zoned R-4; that the zoning as to the north half of the lot had been changed to R-3 in July 1967 and that this barred construction of the proposed building. During the hearing on the motion it was also said that the permit was erroneously issued because the plans did not provide for the requisite number of square feet per dwelling unit; that if a building is adjacent to a public open space of five or more acres a lesser number of square feet is required than if it is not; that subsequent to the court’s decree the City measured the park across the street from the property and discovered it was something less than five acres — the size it was assumed to be when the plans were approved. The court denied the motion to vacate and refused to allow the defendant to make an offer of proof concerning the amendment to the zoning ordinance and the size of the park. The City contends that both rulings were improper.

To justify setting aside a judgment or decree on the basis of newly discovered evidence it must be shown that the new matter was not known to the moving party at the time of trial and could not have been discovered by him with the exercise of reasonable diligence. J. B. Inderrieden Co. v. Gill, 373 Ill 180, 25 NE2d 796 (1940). It was conceded at the hearing that the information concerning the zoning reclassification and the size of the park was available to the City before the trial; the zoning ordinance was published, and the park adjacent to the property was open to inspection. The City’s argument is that the trial court denied the motion to vacate and the offer of proof for another reason: that the court concluded that even if the permit was wrongfully issued, the City would be estopped from revoking it due to the expenditures of the plaintiff in reliance thereon. The City says the court’s reason was error and relief should be granted because of this. We need not consider whether the court’s reason was erroneous. A wrong reason given by a court for its decision is of no importance if the decision itself is correct. Miller v. Chicago Transit Authority, 78 Ill App2d 375, 223 NE2d 323 (1966). The evidence sought to be introduced by the City was not newly discovered; with reasonable diligence it could have been discovered and used at the trial. Indeed, the City admits that it was in the file of the trial attorney at the time of the trial. The ruling of the trial court was correct and will not be disturbed.

Finally, the City argues that the court erred in entering a permanent injunction prohibiting the City from interfering with construction proceedings by the plaintiff. It protests that this prohibits the City from acting under section 43-10 of the Municipal Code which authorizes the commissioner of buildings to order a permit holder to stop construction if it is being done contrary to the approved plans. The City’s concern is unfounded. The decree states that the defendants,

“. . . are herewith enjoined and restrained permanently from interfering with plaintiff from proceeding with the construction of the improvement under Building Permit No. B-398196 issued on March 6, 1968, pursuant to the plans, plaintiff’s exhibit 1, and in accordance with the Building Code of the City of Chicago.”

By prohibiting the City from interfering with the construction of the improvement “pursuant to the plans” it allows the City to act pursuant to the Code if the plaintiff violates the Code or does anything contrary to the plans for which the permit was issued.

The decree is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE LEIGHTON

text:
    Thaddeus L. Stevens, a Minor, by Thaddeus A. Stevens, His Father and Next Friend, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Community Conservation Board of Chicago, and Its Commissioner, D. E. Mackelman, Defendants-Appellants.
    Gen. No. 52,374.
    First District, Fourth Division.
    January 14, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellants.
    Cooney & Stenn, of Chicago (William J. Harte, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This is defendants’ appeal from an order vacating a dismissal for want of prosecution. The sole issue is whether the vacatur was proper.

On June 20, 1961, plaintiff sued defendants in tort. He demanded trial by jury. Defendants appeared and answered the complaint. From July 21, 1961, to April 22, 1964, there were discovery proceedings. On April 22, 1965, the cause appeared for pretrial. Neither party responded. The suit was dismissed for want of prosecution.

Despite the dismissal, on July 12, 1966, the case was on the call of another pretrial judge. It was then that Mr. Irving Stenn, plaintiff’s counsel, learned of the dismissal order of April 22,1965. Mr. Stenn told the lawyer for defendants that he was going to appear before the pretrial judge who dismissed the case and ask for a vacatur. On July 13, plaintiff filed a one paragraph “Petitian to Reinstate.” It was neither sworn to nor supported by affidavit. Without alleging any ground, the petition asked “[t]hat this Honorable Court enter an Order vacating the Order dismissing this cause and that this cause be reinstated in its proper place on the trial calendar.” On July 14,1966 the dismissal was vacated and the cause reinstated on the trial calendar by an order which found that “[a] 11 parties being present and the court being fully advised in the premises; . . . .”

Following entry of this order, from August 18, 1966, to February 16, 1967, the parties appeared in court sixteen times on various discovery and pretrial motions. One of these was defendants’ summary judgment motion supported by memorandum which the court denied on January 31, 1967 with the finding that “[t]here is an issue of fact existing.”

On April 7, 1967, the cause was assigned for trial. April 10, 1967, after a jury was selected, defendants filed a motion to dismiss the suit alleging for the first time that on April 22, 1965, the cause was dismissed for want of prosecution; and that on July 14, 1966, more than fourteen months later, and without notice to them, the dismissal was vacated and the cause reinstated. Defendants alleged that the order vacating the dismissal was void because it was entered without jurisdiction. The trial judge declined to rule on defendants’ motion. He decided, instead, to declare a mistrial and transfer the case to the assignment judge in order to enable the parties to resolve the questions raised by defendants. Accordingly, he entered an order finding “[t]hat a jurisdictional defect is present in this case. . . .” Thereafter, the parties went before the assignment judge; and from the colloquy between court and counsel, it appears that plaintiff wanted the opportunity to appear before the pretrial judge and invoke section 72 of the Civil Practice Act, Ill Rev Stats 1965, c 110, § 72.

April 20, 1967 plaintiff filed an eight-paragraph, section 72 petition. The first seven described the proceedings that led to the vacatur of July 14, 1966. In two of these paragraphs plaintiff alleged that his firm of lawyers did not receive notice that the cause was set for pretrial on April 22, 1965, nor did they receive notice that the case had been dismissed for want of prosecution. The eighth paragraph described the various court appearances of the parties after the vacatur of July 14, 1966, including the motion for summary judgment which defendants made “[I]n the middle of January of 1967, . . . .” Plaintiff supported the petition with three affidavits; one, that of his lawyers’ office manager; another, the affidavit of the lawyer who was responsible for plaintiff’s case in court; and a third, the affidavit of a lawyer in the firm representing plaintiff who described his review of the court file which showed that on July 14,1966, the order of dismissal was vacated.

When plaintiff’s petition was heard, counsel reviewed the history of the case. Defendants argued that the petition was deficient because it did not allege plaintiff had a meritorious cause nor that plaintiff was diligent in moving to vacate the dismissal. Defendants contended that the petition did not furnish a proper basis for vacating the order of dismissal. They requested the opportunity to answer. After hearing defendants, the pretrial judge said he had heard enough for him to act on plaintiff’s petition. He ordered “[t]hat the dismissal order of April 22, 1965 is vacated under Chapter 110, section 72 of the Civil Practice Act nunc pro tune July 14, 1966.” Then in his own hand, the judge wrote “Deft may file written objections if wishes. However, he has stated enough to warrant this order of vacation (sic).” He then gave defendants ten days to file written objections to plaintiff’s petition.

Within that time, defendants filed a three-paragraph “Objections To Petition Filed by Plaintiff on April 20, 1967” in which it was said that the petition was a nullity because the dismissal order was already vacated, that it failed to show by allegation or affidavit any reason for the vacatur requested, that it failed to allege facts showing diligence or a meritorious ease; and finally, that the petition was filed after the court lost jurisdiction. June 6, 1967, the pretrial judge overruled defendants’ objections with a handwritten entry on the order that “[T]he court having read the objections find they have not changed his opinion (sic).”

Plaintiff does not question the dismissal order of April 22,1965. That dismissal was an appealable involuntary nonsuit. Trojan v. Marquette Nat. Bank, 88 Ill App2d 428, 232 NE2d 160. It was a final judgment, with the trial court retaining jurisdiction for thirty days within which to entertain a motion to set aside the order and reinstate the case on the docket. Gilmer v. Dunn, 59 Ill App2d 202, 208 NE2d 85; Ill Rev Stats 1965, c 110, §50(6).

Thirty days after the dismissal, the trial court lost jurisdiction to vacate the order. Procedurally, jurisdiction of the trial court over the cause could have been revested if plaintiff, by a petition which alleged a cause of action, properly invoked the terms of section 72 of the Civil Practice Act. Refiners Petroleum v. White Water Petroleum Terminals, 64 Ill App2d 46, 212 NE2d 748. This section provides a remedy by which a party can bring before the court matters of fact which, if known to the court when judgment was entered, would have prevented its rendition. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294; Glenn v. People, 9 Ill2d 335, 137 NE2d 336.

Defendants contend that the order of July 14, 1966, which vacated the dismissal of April 22, 1965, on plaintiff’s one-paragraph petition, was entered without jurisdiction. They argue that plaintiff’s section 72 petition of April 20, 1967, did not allege facts justifying relief; therefore, it could not support the order from which this appeal was taken. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719.

This argument presupposes that the only way the trial court could have reacquired jurisdiction was by a section 72 petition. It overlooks the conduct of the parties and the procedural history of this case after the pretrial judge entered the order of July 14, 1966. The rule is settled that where a court loses jurisdiction, after expiration of thirty days following entry of an order dismissing an action, the parties may, by appearing voluntarily and participating, in further proceedings, revest the court with jurisdiction over their persons and the subject matter of the action. The elements essential to revesting of jurisdiction are (1) the active participation of the parties without objection, (2) in further proceedings inconsistent with the prior order of dismissal. Ridgely v. Central Pipe Line Co., 409 Ill 46, 97 NE2d 817.

We agree that plaintiff’s one-paragraph petition was not an adequate procedural base for the vacatur of July 14, 1966. However, defendants’ sixteen appearances in court after the improper vacatur, once filing a motion for summary judgment and obtaining a ruling, were inconsistent with the prior order of dismissal and revested the trial court with jurisdiction, even though there was no compliance with section 72. Conduct of the parties was more important than the nature of the proceedings invoked. Brown v. Miner, 408 Ill 123, 96 NE2d 530; Branch v. Barnes, 19 Ill App2d 472, 154 NE2d 337.

When parties are before the court, the test of jurisdiction is not adherence to substantive provisions of the Civil Practice Act; the test is whether the court had before it a justiciable matter. Ill Rev Stats 1965, Const Art 6, § 9. By appearing without questioning the vacatur, or the court’s jurisdiction, defendants waived their right to object to the propriety of the order of July 14, 1966. Craven v. Craven, 407 Ill 252, 95 NE2d 489; Ridgely v. Central Pipe Line Co., supra.

When the cause was assigned for trial, the court, on April 10, 1967, could have proceeded to verdict and judgment. Branch v. Barnes, supra. Although it contained the court’s finding and conclusion, the order of April 20, 1967 vacated the dismissal nunc pro tune as of July 14, 1966. “[A] nunc pro tune order is one presently made to show what was done earlier, and it takes effect from such prior date. It is a device to supply an omission and to enter of record an order actually made, but omitted from the record. It may correct clerical misprisions, but not supply omitted judicial action nor correct judicial errors.” Chapman, Mazza, Aiello v. Ace Lumber & Const. Co., 83 Ill App2d 320, 337, 227 NE2d 562. For these reasons, the nunc pro tune part of the order of April 20, 1967 was ineffective. The petition by which plaintiff invoked section 72 was in fact unnecessary. However, because the court was revested with jurisdiction by the conduct of the parties, it was not error to sustain plaintiff’s petition so as to make clear that the cause was on the docket for trial. Judgment is affirmed.

Judgment affirmed.

STAMOS, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE DRUCKER

text:
    Dean E. Terrill, Plaintiff-Appellant, v. Derr L. Andrlik, Defendant-Appellee.
    Gen. No. 53,070.
    First District, Fourth Division.
    January 14, 1970.

      Morgan, Halligan, Lanoff & Cook, of Chicago (John A. Cook and Samuel M. Lanoff, of counsel), for appellant.
    Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff, the owner and occupant of an automobile, brought this action for damages for personal injuries occasioned by the wilful and wanton misconduct of defendant, the driver of the automobile. At the close of plaintiff’s case the court granted defendant’s motion for a directed verdict. Plaintiff appeals contending that the trial court erred in directing a verdict for the defendant.

Testimony of Dean Terrill, the plaintiff, in his own behalf :

Shortly before 4:30 p. m. on September 1, 1960, he entered his 1957 Lincoln convertible along with the defendant. After he had gotten into the driver’s seat he remembered that he had left something in his apartment. He asked the defendant to bring the car out in front and wait for him. When he returned, the defendant was in the driver’s seat and he told the defendant, “Let’s go.” The defendant continued to be the driver until the time of the accident.

Defendant headed east toward Lake Shore Drive. As they approached the local lanes of Lake Shore Drive the defendant stopped the car at Chestnut for a stop sign. The defendant then turned north to the local Lake Shore Drive traffic lane and proceeded north to Delaware Place. At Delaware Place there is only one lane where a right turn into the express lanes is permitted. They were in this easternmost local lane. There are eight express lanes and at this time in the afternoon six of these lanes are devoted to northbound traffic. There was a barrier placed across the entrance to the four northbound express lanes on the east nearest the lake.

There was traffic control permitting access from the local northbound lanes to the two westernmost express lanes going north. “There was a sign on the red and go post saying that the turn to the east, to the express lanes is permitted on the green arrow only.” The northbound lane does not move when the green arrow is on. There is no movement north and south permitted in the four westernmost express lanes when the green arrow is on.

The condition of the traffic was “tending to be heavy” in both the local and express lanes. As the car approached the signal it stopped behind two other cars for the red light. There were at least three cars to the left (the northbound through local lane).

As the green arrow came on “the number one car that was stopped turned and took the green arrow and proceeded” to the north express lane. The number two car moved up and stopped and did not take the green arrow. Defendant had to stop the car too. The defendant honked his horn as did the people behind him, “trying to get the lady who was in the right turn lane to take the arrow.” She did not move while the green arrow was on.

As the green arrow went off she then moved straight north in the local lane as did the cars to the left. All of a sudden the defendant started the car “very suddenly” to take “the curve to go into the express lanes. I immediately, rather instinctively turned to the right to see the condition of oncoming traffic from the south in the express lanes. And I saw that we were all right from there, that the traffic coming north hadn’t quite caught up. And then I swung around and looked to the north and saw one car approaching very rapidly from the north. I yelled, ‘Watch out for that car,’ and almost momentarily after that, at that time Derr applied the brakes very suddenly and a moment later, why, this car crashed into, the southbound car crashed into the front, left front of our car.”

He then related the injuries he received in the accident and the damage to his automobile.

On cross-examination he stated that the other car was going about forty or forty-five miles an hour when the impact occurred. He was in a hurry when he came back down from his apartment and told the defendant to drive. There was nothing unusual about the defendant’s driving until he approached the green arrow light. It was not until the defendant “started the car to, to make his turn into a, into the express lane of traffic when I looked around.” He looked around to the south and saw traffic moving north. This occurred after the green arrow had gone off. He said something like, “I think I said something about it seems to be clear coming south. It seems to be clear from this direction or from the south, or something to that effect.”

When the light changed from the green arrow to green he knew he wasn’t supposed to go out on the express lanes. He did not tell the defendant to stop, “I didn’t try to direct his traffic.”

Testimony of Marshall Davis, called by the plaintiff:

He is an associate city engineer for the Bureau of Street Traffic, Chicago, Illinois. He brought with him the timing sequence and traffic control information pertaining to the intersection of Delaware Place and Lake Shore Drive on September 1, 1960. The lights were set to the rush hour pattern beginning at 4:00 p. m.

After a full red light in the northbound local lanes a right turn green arrow comes on for thirty-one seconds. During this thirty-one second green arrow the local curb lane is permitted to turn right, into the northbound express lanes. The through northbound local traffic remains stopped and the two northbound and two southbound express lanes are also stopped with a red light. After the thirty-one second green turn arrow is completed, there is a four-second interval where it is off. This is a transitional interval and no movement is permitted. After this four-second interval the green light begins for the northbound local traffic. The green arrow is off, no turn into the express lane is permitted and the two northbound and two southbound express lanes have a full green light.

There was also testimony by Dr. Robert D. Keagy and Dr. Roger W. Friskey as to the plaintiff’s serious and permanent injuries and their causal connection with this accident.

Opinion

The plaintiff sought relief under the Illinois guest statute, Ill Rev Stats 1961, c 95%, § 9-201, wherein a cause of action against an automobile driver accrues to a guest occupant only if the guest sustains injuries due to the wilful and wanton misconduct of the driver. In Dumpert v. Liechty, 114 Ill App2d 59, 251 NE2d 652, 655, the court in discussing wanton misconduct first defined these terms:

“Wilful and wanton misconduct has been defined in many ways by various court decisions. In Schneiderman v. Interstate Tr. Lines, 394 Ill 569, at page 583, 69 NE2d 293, at page 300 (1946) it was stated:
“ ‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.’ ”
“We believe that the most recent declaration found in Klatt v. Commonwealth Edison Co., 33 Ill2d 481, at page 488, 211 NE2d 720 (1965), wherein the Court, readopted the definition found in the Schneiderman case and expressly refused to overrule the same, is the current and better definition for wilful and wanton misconduct.”

The court then concluded that:

“Whether, in a particular case, the one charged has been guilty of wilful and wanton misconduct is a question of fact for the jury, Schneiderman v. Interstate Tr. Lines, supra, and should only rarely be ruled upon as a matter of law. Larson v. Harris, 77 Ill App2d 430, 435, 222 NE2d 566 (1966), affd 38 Ill2d 436, 231 NE2d 421 (1967).”

In McCormack v. Haan, 20 Ill2d 75, 169 NE2d 239, the plaintiff brought an action to recover for personal injuries she sustained while riding as a guest in a car driven by one of the defendants (Patrick L. McGann). In McCormack, supra, plaintiff “unequivocally testified that McGann stopped between the stop sign and the highway. She testified that she was riding in the right front seat, that she looked to the right and said ‘clear right’ and that McGann looked to the left and then proceeded slowly across the intersection.” The court concluded that the Appellate Court erred when it determined that the trial court should have directed a verdict against the plaintiff and in favor of the defendant administrator. At page 78 the court stated that:

Even if we assume that the plaintiff’s testimony conclusively establishes that McGann stopped his car at a place where he had a clear view of approaching traffic on the preferential highway, and that plaintiff looked to the right and McGann looked to the left, it does not follow that he was exonerated from responsibility for the accident. It was his duty to ascertain whether or not it was safe to enter the protected intersection, and if it was not reasonably safe to do so, he should have yielded the right of way to the oncoming vehicle. The jury could find that his failure to do so was wilful and wanton misconduct. Hering v. Hilton, 12 Ill2d 559.

The plaintiff contends that the trial court erred in granting defendant’s motion for a directed verdict. The correctness of the trial court’s decision must be gouged by the rule in Pedrick v. Peoria & Eastern Ry. Co., 37 Ill2d 494, 229 NE2d 504, that a verdict ought to be directed “only in those cases in which all of 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.”

Applying the Pedrick standard to the instant case we cannot say that the evidence so overwhelmingly favors the defendant that no contrary verdict could ever stand. The jury could find that the defendant exhibited a reckless disregard for the safety of the plaintiff since the green turn arrow was off four seconds before he began to make his turn and he should have had knowledge of this fact; that defendant through his carelessness failed to discover the danger of making a turn into an express lane against the light and in traffic which tended to be heavy; and that the defendant acted recklessly by making a turn into the path of an oncoming car which he should have seen if he had been looking carefully.

Nor did the evidence so overwhelmingly favor the defendant so as to require a finding that plaintiff was guilty of contributory wilful and wanton conduct. The jury could find that the defendant suddenly drove forward against the light and turned directly into the path of the approaching vehicle and that plaintiff in no way contributed to the accident.

Defendant claims that only the plaintiff knew of the imminent danger and peril toward which defendant was headed; that, instead of warning the defendant, plaintiff encouraged him forward by stating it was all clear from the south.

In McCormack v. Haan, 30 Ill App2d 311, 174 NE2d 206, which followed the remand of the McCormack case by the Illinois Supreme Court the plaintiff testified that as the defendant pulled past the stop sign she said “clear right”; that she did not see the car approaching from the left prior to the impact and that she never warned the driver of the impending danger. The defendant administrator contended that the evidence disclosed that the plaintiff was guilty of contributory wilful and wanton misconduct as a matter of law and therefore the trial court should have directed a verdict for him. The court in rejecting this argument stated at page 314 that:

This argument is without merit for the reason that it overlooks the fact that McCann and not the plaintiff was driving and had control of the automobile in which plaintiff was riding as a passenger. The driver of an automobile synchronizes his speed to the time, place and duration of his own observation and not to that of his passenger. The passenger not being forewarned as to how the driver of an automobile expects to operate it in a particular situation is at a disadvantage and makes his observation under difficulties. It is confusing and disturbing to a driver of an automobile to have a passenger suggesting how he shall drive. Unless the passenger sees an obvious danger which the driver might not see, there would be no duty on the passenger to warn the driver. The plaintiff in this case had a right to assume that McCann was looking carefully and to relax her diligence accordingly on the assurance that he was watching out for her safety because she was a passenger having no control over the operation of the automobile. Kunz v. Larson, 15 Ill App2d 126, 145 NE2d 746.
Whether or not plaintiff was guilty of contributory wilful and wanton misconduct which caused or contributed to her injury was a question for the jury.

In the instant case the defendant had control of the automobile and the plaintiff had the right to assume that the defendant was looking carefully. The defendant should have seen the approaching southbound car as he made his improper turn after the green arrow went off. While the plaintiff, as passenger, had no duty to warn the defendant of this obvious danger, he did in fact yell a warning, “watch out for that car” as soon as he looked to the left and saw the approaching southbound car. Thus we also find that there was sufficient evidence to submit to the jury the question of plaintiff’s freedom from contributory wilful and wanton misconduct.

The plaintiff was the owner of the automobile defendant was driving at the time of the accident and relied upon the Illinois guest statute (Ill Rev Stats 1961, c 951/2, § 9-201) for recovery. When this accident occurred, the owner-occupant of an automobile being driven by another person was considered a “guest” within the meaning of this statute. Under the statute the only duty imposed upon a defendant driver was to refrain from wilful and wanton misconduct. In the recent case of Summers v. Summers, 40 Ill2d 338, 343, 239 NE2d 795, the court, in determining whether or not an owner-occupant was a “guest” within the meaning of the statute, held that:

[T]his statute in its present form does not expressly apply to an owner-occupant of an automobile being driven by another; therefore, in absence of a finding of legislative intent to the contrary, our rule of construction requires the holding that an owner-occupant is not subject to the limitations of the guest statute. . . . We hold, in accord with the majority of jurisdictions which have considered this question, that plaintiff, an owner-occupant, is not a “guest” within the meaning of the guest statute.

Since the owner-occupant is not a “guest” within the meaning of the Illinois guest statute, the duty upon the driver to refrain from wilful and wanton misconduct is no longer the standard by which an owner-occupant must plead and prove his cause of action. The action of an owner-occupant against the driver of his car may now be based upon simple negligence and the owner-accupant’s freedom from contributory negligence. In the instant case we have already held that there was sufficient evidence to submit the case to the jury on the questions of defendant’s wilful and wanton misconduct and plaintiff’s freedom from wilful and wanton misconduct. It therefore follows that in the instant case there was sufficient evidence of defendant’s negligence and plaintiff’s freedom from contributory negligence to submit to the jury.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

STAMOS, P. J. and LEIGHTON, J., concur.


text:
    Estate of Esther M. Newell, Deceased. Marjorie Hibbe and Jeanette Knauer, Respondents-Appellants, v. Mary J. Palmer, Individually, as Administratrix and Co-Executrix, and Arthur T. McGivern, as Co-Executor of the Estate of Esther M. Newell, Deceased, Petitioners-Appellees.
    Gen. No. 53,565.
    First District, Fourth Division.
    January 14, 1970.

      Winston, Strawn, Smith & Patterson, of Chicago (George B. Christensen, Charles J. Calderini, and Kenneth G, Pigott, of counsel), for appellants.
    Richard Altieri and Roland Towle, of Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from an order admitting to probate the will of Esther M. Newell, deceased.

The facts are not in dispute. On June 16, 1968, Esther M. Newell died in Chicago, Illinois. She left as her only heirs at law and next of kin four cousins, two of whom are appellants in this case. Letters of administration were issued to Mary J. Palmer on June 21, 1968. A document purporting to be the last will and testament of Esther M. Newell was filed with the court on June 27, 1968. On August 7, 1968, Mrs. Palmer, as administratrix, filed a petition asking leave for a hearing on the proof and admission to probate of the will filed June 27, 1968. The petition named Marjorie Hibbe, Monica McCollins, John McCollins and Jeanette Knauer as respondents. Only Marjorie Hibbe and Jeanette Knauer contested the petition and are referred to hereinafter as respondents.

Thomas R. Benz and Clara Mandel, attesting witnesses, testified to the due execution of the document and the sound mind of the decedent at the time of execution. Both witnesses admitted that “X” marks in the margins of the first and second pages of the will and the pencil markings through the names of the residual beneficiaries were not present at the time of execution of the will. Neither witness had any knowledge as to how or when these markings were made, nor did they know in whose custody the will was after the execution date.

Wellington J. Hughey, one of the two residuary beneficiaries under the will, died on March 30, 1964, some four years before Mrs. Newell.

Respondents obtained the court’s permission to have an expert in questioned documents (handwriting expert) examine the will. He testified that the markings were made after the names of the residual beneficiaries in paragraph twenty had been typewritten in. All the markings were made by an ordinary lead pencil. There were at least three pencil strokes through the name of Wellington Hughey and two lateral and two vertical strokes across and through the name of Mary J. Palmer. He had no way of knowng when these pencil marks were made but stated that the names were still legible and could be read.

Mrs. Palmer was called as an adverse witness by the respondents.

After arguments by counsel, the court held that there was no evidence of cancellation of the will and admitted it to probate. From this order the respondents appeal.

Respondents contend that the will of Esther M. New-ell was revoked by cancellation and cite section 46 of the Illinois Probate Act (Ill Rev Stats, c 3, § 46 (1967)):

A will may be revoked only (a) by burning, cancelling, tearing, or obliterating it by the testator himself or by some person in his presence and by his direction and consent, ....

They argue that a will cannot be admitted to probate when markings made subsequent to its execution appear across an essential portion of the document. In the instant case the names of the two residual beneficiaries in the residuary clause had been pencilled through but were still legible. Respondents claim that since the residuary clause passed approximately 98% of Mrs. New-ell’s estate to these beneficiaries the will of the deceased was revoked in its entirety.

Petitioners urge that the striking of the names of the beneficiaries was merely an attempted alteration or deletion which did not revoke by cancellation the deceased’s will since there was no compliance with section 47 of the Probate Act (Ill Rev Stats, c 3, § 47 (1967)) which provides:

An addition to a will or an alteration, substitution, interlineation, or deletion of any part of a will which does not constitute a revocation of the will under this Article is of no effect, unless made by the testator or by some person in his presence and by his direction and consent and unless the will is thereafter signed and attested in the manner prescribed by this Article for the execution of a will.

In Casey v. Hogan, 344 Ill 208, 176 NE 257, the complaint alleged that the testatrix, after the execution of her will, erased, cancelled and crossed out by the use of a lead pencil the names of five of seven beneficiaries ; that she stated that she was going to “fix things” so that these five beneficiaries would not receive any of her property as she wanted her brother and sister to take her property without any will. The court found that this statement of facts did not show a valid revocation of the will, and dismissed the complaint for want of equity. In affirming this decree the Supreme Court stated at page 210:

An alteration made by a testatrix which fails for want of proper attestation leaves the original will in full force. Pencil erasures and alterations in a will made by a testatrix without new attestation will be disregarded by the court, and the will as originally drawn, if legible after the attempted alteration, will be taken as the will of the testatrix. (Schmidt v. Bauermeister, 279 Ill 504.)

In the instant case there was no evidence of any statement by the deceased as to her intention to change her beneficiaries.

Furthermore, an examination of Mrs. Newell’s will shows that the first nineteen paragraphs of her will, including eighteen bequests, remain intact except for some “X” marks in the margin at paragraphs three, four, six, twelve and thirteen which do not affect these particular dispositions; that the appointment of the co-executors (one of whom was Mary J. Palmer) was not changed; and that the signatures of the testatrix which appear in three places and those of the attesting witnesses also remain unchanged. In Board of Nat. Missions of Presbyterian Church v. Sherry, 372 Ill 272, 276, 23 NE 2d 730, the court has said:

. . . the drawing of lines through certain portions of a will, in the absence of evidence of an intention on the part of the testator to revoke the entire will, cannot amount to a revocation of the will, the crossing out will be disregarded and the instrument as originally executed, so far as its contents are legible, is entitled to be admitted to probate. Fleming v. Fleming, supra; Casey v. Hogan, 344 Ill 208; Schmidt v. Bauermeister, 279 id. 504; Hesterberg v. Clark, supra; Wolf v. Bollinger, supra.

We find no error in the trial court’s determination that there was no evidence of cancellation of the will.

Appellants also contend that they should be granted a new hearing because of the improper exclusion of evidence tending to show a revocation of Mrs. Newell’s will. When Mary J. Palmer was called by respondents as an adverse witness, the court refused to allow respondents to show the circumstances under which the will was found or the intelligence and business acumen of the testatrix. The offer of proof tendered by respondents did not establish a revocation by cancellation of the will or any intention on the part of the testatrix to do so. Therefore, we find no prejudicial error in the judge’s ruling on the exclusion of this evidence.

We further find that after a full and fair hearing the court properly admitted the will to probate and we affirm that order.

Affirmed.

STAMOS, P. J. and LEIGHTON, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Le Roy Brunette and Walter C. Franke, Plaintiffs-Appellants, v. Vulcan Materials Company, a Corporation, Conlon-Collins, Inc., a Corporation, Charles A. Benson and Home State Bank of Crystal Lake, as Trustee Under Trust No. 1220, Defendants-Appellees.
    Gen. No. 53,467.
    First District, Third Division.
    January 15, 1970.
    Rehearing denied February 17, 1970.

      Paul M. Lurie, of Chicago (Fohrman and Lurie, of counsel), for appellants.
    Frank M. Covey, Jr., McDermott, Will & Emery, of Chicago, and Covey, McKenney & Powers, of Crystal Lake, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiffs seek to obtain specific performance of an alleged contract to convey a parcel of real estate or in the alternative to recover damages for breach of contract. Defendants moved to dismiss the suit pursuant to sections 45 and 48 of the Civil Practice Act (Ill Rev Stats, c 110, §§ 45, 48 (1967)). As to section 45 defendants contend that the complaint does not state a cause of action and as to section 48, that the claim is barred by the Statute of Frauds. The trial court sustained defendants’ motion and dismissed the suit and plaintiffs have appealed. The facts follow.

In 1956 plaintiffs purchased from Consumer’s Company, the predecessor firm of Vulcan Materials Company, a five-acre parcel of real estate in McHenry County, Illinois. Plaintiffs allege that Consumer’s agent agreed orally to give them priority over other purchasers when and if the defendants decided to sell an adjacent parcel of land consisting of approximately 8.5 acres, and it is this land which is the subject matter of the present litigation. Plaintiffs operated a successful glazing and glass business on the land they had purchased in 1956 and by 1964 required expanded facilities. To fulfill this need they began negotiations for the purchase of the adjacent tract owned by Vulcan and they allege that in March 1965 an agreement was reached. As evidence of that agreement plaintiffs offer two letters to them from Vulcan, one dated February 10, 1965, and the other dated March 16, 1965. Defendants’ letter of February 10th suggested terms for the sale of the land and closed with the following:

“If you are interested in this, please notify us so that we may present it to our Board of Directors. Prior to presenting this to the Board, we would expect to receive a firm offer from you including earnest money . . . .”

Plaintiffs’ response dated February 19, 1965, contained this passage:

“Terms would be $3000.00 earnest money payable upon approval of the sale by your staff, an additional $14,000 in cash wpon acceptance by your Board of execution of Articles of Agreement, and payment of the balance in three equal annual installments at 6% interest on the unpaid balance . . . .” (Emphasis added.)

In a letter from Vulcan to plaintiffs dated March 16, 1965 the following pertinent passages appear:

“In reply to your letter of February 19, 1965, our management is in substantial agreement to submit
to our Board of Directors for its approval the sale of property owned by us adjacent to your company at Crystal Lake. The property they will recommend for sale is between your property and Switz-er Boat Co.
tC
“Subject to the drafting of an acceptable contract, we feel it would be possible for you to raze, repair or remove. , . .
“If the above is agreeable, please notify us, and we will proceed to draft the contract.” (Emphasis added.)

The reply which defendants contemplated came in a letter dated July 26, 1965, signed by Brunette on behalf of plaintiffs. In that letter plaintiffs informed Vulcan of the exact acreage as found by the survey they had taken and then stated:

“I suggest $13,500.00 cash (about 29%) and the balance at 6% in three equal annual installments. Since the land is not on the Assessor’s books as a separate parcel, and since most of the year will be gone before this matter is consummated, I suggest you pay ’65 taxes.
“Kindly call to arrange a meeting for the purpose of drafting an agreement.” (Emphasis added.)

Plaintiffs’ amended complaint states in paragraph 9 that “On or about March 16, 1965, it was agreed between plaintiffs and Dwyer [defendants’ agent] that Vulcan would sell Parcel A [the subject matter of this suit] to plaintiffs . . . .” It thus appears that plaintiffs considered the March 16th letter the basis for the existence of a contract.

The correspondence hereinbefore set forth contains repeated references to the preparation of a formal contract setting forth the terms of conveyance. Plaintiffs in their letter dated February 19, 1965, unequivocally make acceptance by Vulcan’s Board of Directors and the execution of “Articles of Agreement” conditions precedent to the payment of the $14,000 cash down payment. When Vulcan responded to that letter on March 16, 1965 the conditional nature of these negotiations was again emphasized both as to the organizational requirement that the Vulcan Board of Directors approve the sale as well as the need for the drafting of an acceptable contract. Finally, on July 26, 1965 plaintiffs’ own letter unmistakably characterizes the correspondence as preliminary. That letter speaks in futuro of when the matter will be “consummated” and closes with a request for a meeting so that an agreement can be drafted. Taken cumulatively, these statements characterize the letters as mere steps in a chain of negotiations and the law applicable thereto is clear.

Where the reduction of an agreement to writing and its formal execution is viewed by the parties as a condition precedent to the vesting of rights and duties, there can be no contract until then, even if the actual terms have been agreed upon. Baltimore & Ohio S. W. Ry. Co. v. People ex rel. Allen, 195 Ill 423, 63 NE 262; Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill App2d 2, 176 NE2d 1; Stephens v. Nixon, 338 Ill App 275, 86 NE2d 278.

We proceed to consider the propriety of the court’s order sustaining defendants’ motion to dismiss the suit pursuant to the provisions of section 45 of the Civil Practice Act. If an essential and material allegation of fact is absent, the complaint may be dismissed. Byron v. Byron, 391 Ill 256, 62 NE2d 790. In the case before us the bare allegation set out in paragraph 9 of the amended complaint is a conclusion based on insufficiently pleaded facts. There is no allegation of offer or acceptance by either party unless we accept plaintiffs’ view that the correspondence should be so construed. Since, as we have hereinbefore concluded, the letters all look forward to and are contingent upon the execution of a formal contract, they cannot be considered as an offer or acceptance. Any agreement derived from such correspondence is clearly an agreement only as to possible terms and not an agreement to sell. The former represents the typical negotiation process, whereas the latter is the legal event upon which all rights and duties are predicated. The court properly sustained defendants’ motion to dismiss under section 45 of the Civil Practice Act.

Defendants have also argued that even if we assume the existence of an oral contract, the suit should be dismissed as barred by the Statute of Frauds. Ill Rev Stats, c 59, §2 (1967). This provides as follows:

“No action shall be brought to charge any person upon any contract for the sale of lands, . . . unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, . . . .”

Plaintiffs contend that the correspondence between the parties can collectively fulfill the requirement of a written memorandum. They point specifically to the letters sent by Vulcan on February 10th and March 16, 1965. In a sale of real property the written contract must contain either by itself or by reference to other writings the names of the parties, a description of the land, the price, and the terms and conditions of sale and it must be signed by the party to be charged. Thompson v. Wiegand, 9 Ill2d 63, 136 NE2d 781. Vulcan’s February 10th letter suggested alternative modes of payment, asking plaintiffs to respond with a firm offer for presentation to its Board of Directors. The letter of March 16th, although apparently acknowledging receipt of an offer from plaintiffs, sought modifications relating to the size of the tract, and concluded, “If the above is agreeable, please notify us, and we will proceed to draft the contract.” The correspondence referred to does not on its face purport to be a memorandum of an agreement in that it expresses the need for final acceptance by the Board of Directors as well as a further reply from plaintiffs concerning the size of the parcel ultimately to be sold. The intention to be bound by the terms of the correspondence is affirmatively shown to be absent. In Whitelaw v. Brady, 3 Ill2d 583, 121 NE2d 785, the court said (pp.591-2):

“It is the conclusion of this court, therefore, that Eamm’s proposal in writing contemplated further negotiations . . . ; and that the final agreement of the parties, not being reduced to writing and signed by the party sought to be charged, was repugnant to the Statute of Frauds and incapable of specific enforcement.”

The record conclusively establishes a defense to the plaintiffs’ claim, and a motion under section 48 of the Civil Practice Act is a proper method for obtaining a disposition of the cause. Stanley v. Chastek, 34 Ill App2d 220, 180 NE2d 512.

Plaintiffs finally contend that they have alleged sufficient partial performance to remove this transaction from the operation of the Statute of Frauds. There are three requisites for the application of the doctrine of partial performance: (1) the performance must be in reasonable reliance on the contract, (2) the remedy of restitution must be inadequate, and (3) the performance must be one which in some degree evidences the existence of a contract and is not readily explainable on any other ground. Corbin on Contracts, Vol 2, § 425 (1950). In support of their contention plaintiffs aver that during the year 1965 they ordered a survey of the land at a cost of $135; that they expended time and effort in obtaining a reduction of real estate taxes on the tract; that Vulcan knowingly allowed them to assume possession of the property and to repair structures and store materials thereon and that they grazed animals (two goats used for advertising purposes) on the land.

To successfully invoke the doctrine of partial performance it is essential that the facts alleged be strongly evidential of a contract. The partial performance must itself play a part in the proof. Corbin on Contracts, Vol 2, § 430 (1950). That plaintiffs’ actions are insufficient in this regard is manifest from their own statements. In a letter dated September 11, 1967 they say, “[we] are interested in purchasing the property remaining in your hands . . . .” (Emphasis added.) By way of explaining plaintiffs’ use of the property during this period in the absence of a contract we note the following statement made by plaintiffs in a letter to defendants dated October 4, 1967: “From the day of our first contact with your company to the present our relations with your people have been most cordial, ranging from our use of neighboring property through installation of glass in your buildings and equipment . . . .” Whether that was merely neighborly indulgence on the part of defendants in the expectation that some agreement might ultimately be concluded is not material. The fact remains that there was as yet no underlying agreement between the parties as to the sale of the property. Accordingly the doctrine of partial performance is not available and the Statute of Frauds applies.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    Mary J. Forlenza, Plaintiff-Appellee, v. Alexander G. Forlenza, Defendant-Appellant.
    Gen. No. 53,901.
    First District, Third Division.
    January 15, 1970.

      Harry B. Aron, of Chicago, for appellant.
    Reynolds & Reynolds, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a partition suit involving a four-apartment building held by the plaintiff, Mary Forlenza, and her husband, the defendant Alexander Forlenza, in joint tenancy. The court ordered the partition and the defendant appeals contending that the court erred in excluding relevant evidence.

The plaintiff and the defendant were the only two witnesses at the trial. The plaintiff testified that she and her husband acquired the property by a quitclaim deed. She identified the deed, which was dated January 11, 1968. It was received in evidence and the plaintiff rested.

The defendant, 69 years of age, testified that the property was in his own name when he and the plaintiff were married in January 1967, and that from 1939 on he had made all the repairs, paid the taxes and other bills, and collected the rents. The property was encumbered by a mortgage and in January 1968 he was notified that the mortgage would not be renewed. His wife’s signature was thus required in order to get another mortgage, and when he asked her if she would be willing to sign the necessary papers she replied that she would do so provided he put the property in joint tenancy. He asked if he would get the property back after the mortgage was secured and she agreed that she would re-sign it to him as soon as the papers came through. He further testified that he had the property conveyed to both of them in joint tenancy on January 11, 1968, and that the new mortgage was executed on the same day but that thereafter, despite his numerous requests, she refused to reconvey the property to him.

The alleged error arose during the cross-examination of the plaintiff. The defendant attempted to prove that the plaintiff had no funds of her own when she married him; that she was not employed during their marriage; that she did not live and never had lived in the apartment building; that she collected no rents, made no repairs, paid no taxes and made no mortgage payments on the property; that she told her husband she would not sign the mortgage and the mortgage note unless the property was placed in joint tenancy and that she promised to return it to him after the mortgage money was received. The court ruled that such testimony was irrelevant but allowed the defendant to make an offer of proof that the plaintiff, if permitted, would have so testified.

The defendant contends that the plaintiff’s testimony would have tended to prove that she held the property in trust for his benefit. A resulting trust is created by operation of law from the presumed intention of the parties when the consideration for the purchase of real estate is furnished by one person while the title is taken in the name of another. The titleholder becomes a trustee for the benefit of the person furnishing the consideration unless that person manifests an intentian that no resulting trust be created. The burden of proof is upon the person seeking to establish the trust and the evidence, to be effective for this purpose, must be clear, convincing and unmistakable. Scanlon v. Scanlon, 6 Ill2d 224, 127 NE2d 435 (1955); Varap v. Varap, 76 Ill App2d 402, 222 NE2d 77 (1966).

Contrary to the contention of the plaintiff, it is not prerequisite to the creation of a resulting trust that title be placed solely in the name of the trustee. A resulting trust can arise where title is placed in the names of the beneficiary and trustee as joint tenants. Abraham v. Abraham, 403 Ill 312, 86 NE2d 224 (1949); Kane v. Johnson, 397 Ill 112, 73 NE2d 321 (1947). The plaintiff also misconceives the nature of the presumption that arises when a husband conveys property to his wife. If the property is conveyed to her as a joint tenant there is a presumption that a gift is being made of a one-half interest in the property; however, the presumption is not conclusive as the plaintiff contends. The presumption is rebuttable; but again, it can be overcome only by clear, convincing and unmistakable evidence that no gift was intended. Baker v. Baker, 412 Ill 511, 107 NE2d 711 (1952). The intention of the parties at the time of the conveyance is controlling. The intention may be shown by the circumstances surrounding the transaction and by paroi evidence. O’Donnell v. O’Donnell, 303 Ill 31, 135 NE 28 (1922); Ill Rev Stats 1967, c 59, § 9.

The evidence tendered by the defendant should not have been excluded. The evidence bore directly on the intention of the parties at the time the property was transferred and it should have been considered by the court in determining whether the presumption of a gift was overcome and a resulting trust established.

Reversed and remanded.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vernon Henderson, Defendant-Appellant.
    Gen. No. 52,730.
    First District, First Division.
    January 19, 1970.
    Rehearing denied February 5, 1970.

      Reibman and Hoffman, of Chicago (Sheldon N. Reibman, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Vernon Henderson, was charged with three separate counts of an indictment for attempted rape, rape and indecent liberties. Following a waiver of jury trial, the defendant was found guilty by the trial court for the offenses of rape and indecent liberties. He was sentenced to serve three to eight years for each offense, the sentences to run concurrently. Defendant asserts several issues on appeal:

(1) That the evidence was insufficient to prove his guilt beyond a reasonable doubt;
(2) That the court erred in considering improper evidence;
(3) That the sentence was excessive; and
(4) That the conviction for the lesser offense must be reversed because the charge arose from the same conduct.

With regard to the last issue noted, the State has argued that defendant’s failure to raise this issue in his original brief precluded defendant from raising the question in his reply brief, all in violation of Supreme Court Rule 341(g) (Ill Rev Stats 1967, c 110A, § 341). Despite the fact that this issue was first raised in defendant’s reply brief, the rule is well established that in the interest of justice, a reviewing court may consider all questions which appear to be plain error or affect substantial rights of a party. Ill Rev Stats 1967, c 110A, § 615; Hux v. Raben, 38 Ill2d 223, 230 NE2d 831 (1967); People v. Van Hyning, 72 Ill App2d 168, 219 NE2d 268 (1966). Accordingly, we will consider all of the defendant’s contentions as properly before this court.

The evidence discloses that on the evening of January 3, 1967, the prosecutrix, Sheila Fleming, was in the company of the defendant, Vernon Henderson. She was thirteen years old and a student, living with her mother and sisters at 7894 South Park, Chicago. She left her home with a friend, Renee Abernathy, and the defendant whom Sheila had known for about five years. They proceeded to the defendant’s home at 7714 South Drexel, Chicago. A short time later, defendant and Sheila drove to a restaurant in the neighborhood where the prosecutrix ate and defendant had one or two bottles of beer. Defendant mentioned some films he wanted Sheila to see and they left the restaurant with defendant driving to a building at 79th or 80th and Anthony Street, where he entered and came out with some films wrapped in newspaper. Defendant then drove the prosecutrix back to his home. After she protested that she did not want to see the films, he grabbed her and took her to the basement. Defendant made three separate trips to the first floor of the home to get a projector, some beer and a can opener. Prosecutrix accompanied him on these trips because she was held by him.

Defendant then assembled the projector and showed a film that depicted sexual relations. Prosecutrix continually said she did not want to view the films and began crying. After the film was shown, the defendant placed his hand on her vagina and then removed her panties. Sometime during the showing of another film, the defendant disrobed except for an undershirt and placed himself on top of the prosecutrix. When Sheila began to cry, the defendant struck her in the head with his fist and said he might harm her more seriously. According to Sheila, the defendant than penetrated her vagina with his penis, but did not ejaculate. Later defendant demanded that Sheila partially disrobe and he placed his hands upon her vagina and breasts, once again putting his body on top of her. The defendant then lost consciousness and Sheila extricated herself from underneath his body. The prosecutrix testified that she moved a knife that had been on a nearby table and then dressed, leaving defendant’s home by the back door. The prosecutrix identified a film projector, three reels of film, a pair of her panties and a pair of defendant’s undershorts which were all recovered by the police from the basement of defendant’s home. Upon leaving the premises Sheila encountered a police patrol car and complained of having been raped. This occurred at 4 o’clock in the morning of January 4, 1967. She was taken to her home, then to a hospital and later to a police station where she gave a statement to the police. On cross-examination the prosecutrix stated that while defendant was making advances to her he had placed his mouth on her vagina, prior to having relations with her.

A friend of the prosecutrix, Renee Abernathy, stated that she had accompanied defendant to his home along with Sheila on the night in question. She testified that she left defendant’s home when he appeared nude in the living room. The State next presented the testimony of Police Officer Ryan, who testified as to his encounter with Sheila and the subsequent arrest of the defendant with the recovery of certain articles in defendant’s basement.

The defense, through testimony of the defendant’s wife, attempted to show that the prosecutrix had left defendant’s home around 10 o’clock in the evening of January 3, 1967. Defendant’s wife also stated that her husband went downstairs at 4 o’clock in the morning of the next day, because of noises she had heard; that she later followed defendant to the basement where she found him asleep on the couch and removed his clothes in an attempt to put on his pajamas and cover him with a blanket. The defendant testified that he had taken the prosecutrix to dinner on January 3, 1967; denied picking up any film that evening; that he brought Sheila back to his home and that he laid across his bed some time before 10 o’clock that evening and was not awakened until 4 o’clock the next morning by his wife. Defendant denied all of the events that were related by the prosecutrix as to the occurrences in his basement.

Doctor Price who had examined the prosecutrix on January 4, 1967, when she was brought to Billings Hospital for a medical examination because of the alleged rape, testified for the defense. He stated that no contusions or abrasions appeared in the vaginal area of the prosecutrix and that no spermatozoa was present. The doctor’s medical report was then received into evidence and made a part of the record. On cross-examination, the doctor stated that despite his findings, the prosecutrix could have possibly had sexual intercourse without completion of the act. The defense also produced the testimony of Youree Jones to the effect that she had visited defendant’s home at 10 o’clock in the evening, where she observed defendant lying on his bed while his wife was present in the living room on the first floor and saw an unidentified boy and girl in the basement of the home. However, this witness maintained that her observations took place on January 4, 1967, which was the day after the prosecutrix was supposedly present in defendant’s home.

Defendant contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt. He argues that the evidence as to the use of force was inadequate in light of the prosecutrix’s own testimony so that there was insufficient proof of the crime of rape. Defendant also asserts that the medical testimony of the examining physician conclusively proves that no act of sexual intercourse was perpetrated upon the prosecutrix. The State argues that the complaining witness’ testimony was clear and adequately substantiated by other evidence.

We are mindful of the rule that reviewing courts must carefully examine the evidence in rape cases, People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962), and that no definite standard for the degree of force necessary to constitute rape has been established. People v. Jackson, 103 Ill App2d 209, 243 NE2d 551 (1968). In this case, the record discloses that defendant was 5 feet, 10 inches tall and weighed 220 pounds while the prosecutrix was 5 feet, 2 inches tall and weighed 113 pounds. This disparity in size should be considered as a possible proof of force since the futility of resisting in the face of such odds could reasonably be assumed. However, in the instant case several factors militate against a finding that force was used to accomplish sexual intercourse. The medical report showed that no bruises appeared on Sheila’s face although she testified that defendant had struck her twice, with one blow described as a hard one; and that Sheila’s vagina easily admitted one finger and that with her cooperation could admit two fingers. The prosecutrix stated she was only restrained by defendant when he held her arm as they moved around his home; that despite three trips to the first floor of the defendant’s house, she did not cry for help, even though she stated that on one trip to defendant’s bedroom, she observed defendant’s wife asleep in that room, but did not cry out; and the knife that was supposedly present and was used to influence the prosecutrix to submit to the defendant’s advances was not recovered from the basement although the other articles were recovered when defendant was arrested. We are therefore, of the opinion that the State failed to prove the element of force which was necessary to sustain the conviction for rape. Accordingly, the defendant’s conviction for rape should be reversed.

The conviction for indecent liberties will be affirmed. Defendant strongly relies upon the medical report which appears to disprove any evidence of rape. However, it is well established that medical testimony is not required to prove a crime of this nature. People v. Boney, 38 Ill2d 23, 230 NE2d 167 (1967), certiorari denied 392 US 933. The prosecutrix was positive that defendant had penetrated her vagina although the act was not consummated. This was not disproved by the medical report. In fact, the doctor testified that the prosecutrix could very well have had sexual intercourse without completion of the act. We think the evidence was sufficient to show that defendant had had sexual intercourse with the complaining witness, all in violation of chapter 38, section 11-4, Ill Rev Stats (1967), which states in part:

“Any person of the age of 17 years and upwards, who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child: (1) Any act of sexual intercourse. . . .”

The prosecutrix’s testimony was clear and convincing that the defendant did have sexual intercourse on the evening and morning of the days in question. Our decision in that respect was influenced by the corroboration of prosecutrix’s testimony by the police officer who first encountered the prosecutrix, later apprehended the defendant and recovered the physical evidence described by the victim. We believe this wholly contradicted the defendant’s theory that Sheila had left the premises earlier in the evening of January 3, 1967, or that someone else had seduced her in the defendant’s basement.

Next, defendant contends that during this bench trial the State improperly introduced defendant’s confession, where defendant had denied making any inculpatory statement on cross-examination and the State elicited rebuttal testimony of a police officer who stated that defendant said he "was sorry” while in police custody. Defendant argues that since he was not given a list of witnesses to his oral statement, pursuant to Ill Rev Stats, c 38, § 114r-10 (1967), the statement was improperly admitted. But the record discloses that after a colloquy of the attorneys over an objection by defendant, the question was withdrawn by the State’s Attorney. We believe that the trial judge did not consider this as evidence in reaching his decision.

Defendant asks this court to reduce the sentence imposed because he contends it is excessive. Defendant maintains that the facts and circumstances of this case and his background would have warranted granting of probation rather than a penitentiary sentence. The authority of the appellate court to reduce sentences should be exercised with caution. In our view of the facts and circumstances here involved there is no legal reason for the reduction of sentence since it does not appear that the term imposed is a great departure from the spirit and purpose of the law. People v. Hicks, 35 Ill2d 390, 220 NE2d 461 (1966), certiorari denied 386 US 986. We think the sentence imposed was lenient, in view of the fact that the Legislature in 1967 had imposed a minimum sentence of four years upon such a conviction.

It is unnecessary to consider defendant’s contention that the court incorrectly convicted the defendant for two crimes arising from the same criminal conduct. The defendant’s conviction for rape is reversed and the conviction and sentence for indecent liberties is affirmed.

Reversed in part and affirmed in part.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Francis Oldsby, Defendant-Appellant.
    Gen. No. 52,791.
    First District, First Division.
    January 19, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendant, Francis Oldsby, was indicted in two counts with the offenses of attempted rape and deviate sexual assault, in violation of section 8 — 4 and section 11-3 of chapter 38, Ill Rev Stats (1967), respectively. A bench trial resulted in findings of guilty on both counts of the indictment from which the court sentenced defendant for a term of five to ten years on each count. On this appeal, the defendant asserts that error was committed when he was convicted for two crimes, which he alleges arose from the same transaction.

The facts reveal that on November 15, 1966, the complaining witness, Leone O’Beremdt, was walking in a northerly direction from her residence at 6400 South Cottage Grove Avenue, Chicago, at 5 o’clock in the morning. While proceeding toward the elevated station at 63rd Street and Cottage Grove, she noticed a man in an alcove; and that near a closed filling station she was grabbed from the rear by a man who was identified by this witness as the defendant. The complaining witness was taken into an alley behind the filling station, made to crawl under a fence, and forced to lay down on defendant’s coat which he had placed, on the ground. Defendant forced her to partially disrobe and he exposed his penis and made an unsuccessful attempt at sexual intercourse. She then put on her clothes and she assured defendant they could go to her room at the hotel where she lived. While proceeding in that direction, she cried out to another man, whereupon the defendant slapped her face and grabbed her, forcing her against a building located at Eggleston and Cottage Grove Avenues. Defendant forced her to sit, put his coat over one of her shoulders and exposed his penis. The complaining witness was then forced to touch and then kiss the defendant’s penis. She then spoke to defendant and convinced him to go to her room. When they arrived at the hotel, they encountered a George Hagan who knew Leone O’Beremdt, and she informed Hagan of the defendant’s actions. Hagan succeeded in restraining the defendant until the police arrived and arrested him.

Since the defendant does not challenge the sufficiency of the evidence presented to prove his guilt, we do not deem it necessary to set out any further evidence. The defendant contends that the attempted rape and deviate sexual assault were the result of the same conduct or transaction, so that his conviction for both crimes was error because of the rule that where both counts relate to the same occurrence, the defendant will be prejudiced by the sentences on both convictions. The argument concludes that he could only be convicted and sentenced for the greater offense of attempted rape, so that this court should reverse the conviction for deviate sexual assault. The State argues that the defendant’s acts involved two separate and distinct commissions of criminal conduct, both factually and because of the nature of the crimes charged.

Before reaching the merits of this issue, justice requires that we deal with a problem that appears from the record. The trial court sentenced defendant on a finding of guilty on both counts to terms of 5 to 10 years imprisonment. Nothing appears as to whether the terms were to be served concurrently or consecutively. It is a well established rule that two or more sentences of a defendant to the same place of confinement run concurrently in the absence of a contrary expression in the order of court. People v. Toomer, 14 Ill2d 385, 152 NE2d 845 (1958); People v. Anderson, 407 Ill 503, 95 NE2d 366 (1950).

The issue raised by defendant is whether he was properly convicted on these two charges which allegedly arose from the same criminal conduct. Section 1-7(m) of chapter 38, Ill Rev Stats (1967) states:

“When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”

According to the Committee Comments to this subsection, this codified the holding of People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958), which expressed the converse proposition that if the offenses resulted from the same conduct, then the defendant may not be sentenced on both, either concurrently or consecutively. The Schlenger case involved a two count indictment for armed robbery and grand larceny where defendant took $200 from an individual. The Court found that the concurrent sentences of 5 to 15 years and 5 to 10 years on the charges caused prejudice to the defendant’s parole in the future. See also: People v. Squires, 27 Ill2d 518, 190 NE2d 361 (1963). The Schlenger case, supra, used language of the “same transaction” in discussing the meaning of the term “conduct” which is defined in section 2-4 of chapter 38, Ill Rev Stats (1967) as follows: “an act or a series of acts and the accompanying mental state.”

The defendant relies upon People v. Boyd, 105 Ill App 2d 345, 245 NE2d 587 (1969), which reversed a conviction for aggravated battery and affirmed a conviction for attempted robbery where the defendant had demanded money arid then assaulted the individual when his demand was ignored. The Boyd case discussed many other decisions which the defendant in this case argues are dispositive of the issue involved. In People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651 (1966), a conviction for burglary with intent to commit rape was reversed while the court upheld a rape conviction because the separate counts of the indictment were held to be part of the same conduct. This decision is factually inapplicable to our case and has been questioned by subsequent decisions. People v. Raby, 40 Ill2d 392, 240 NE2d 595 (1968) cert denied 393 US 1083; People v. Weaver, 93 Ill App2d 311, 236 NE2d 362 (1968). Next, in People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299 (1963), a conviction for incest was reverséd while affirming a rape conviction, where the defendant had carnal knowledge of his daughter. The Supreme Court’s decision was that both crimes had the element of unlawful carnal knowledge as a common denominator and then stated at page 261:

“In the present case we are of the opinion that only one sentence should have been imposed, and that sentence should have been for the greater offense. The relative gravity of the two offenses involved in the single act in this case can not depend upon the sentences actually imposed. . . .” (emphasis supplied).

The Duszkewycz case has been explained in a number of decisions, of which two appear to crystallize the meaning of the statutes and case law involved. In the case of People v. Raby, supra, the defendant was convicted of the crimes of disorderly conduct and resisting arrest when he sat down in an intersection during a civil rights demonstration and when arrested for this action “went limp” in the arms of police officers. The court characterized these offenses as separate and distinct, involving more than a single act for the commission of the two offenses. On the other hand, in City of . Chicago v. Hill, 40 Ill2d 130, 238 NE2d 403 (1968), the defendants were charged and convicted for the crimes of obstructing traffic and disorderly conduct in sitting down in an intersection and refusing to move when ordered by the police. There, the court noted that both offenses were premised upon the act of sitting in the intersection and that the two fines were punishing the same conduct twice in contradiction to their holding in Duszkewycz, supra, where the court had previously stated at page 261, “that two punishments can not be imposed for a single act, even though different ingredients are involved in the two crimes.”

In the light of the above authority, we are of the opinion that the defendant has not shown any merit in his contentions. From the facts as presented, we can only conclude that the defendant’s assault upon the complaining witness could only be characterized as separate acts Of attempted rape and deviate sexual conduct. The offenses charged are by definition dissimilar and could only be committed by separate and distinct acts of the defendant, regardless of any time and space differences that may have occurred. The record has ample proof to substantiate this conclusion. Further, we note the decision of People v. Baker, 114 Ill App2d 450, 252 NE 2d 693 (December 17, 1969), where the defendant was charged with three counts in the same indictment, for armed robbery, aggravated assault with a deadly weapon and aggravated assault in causing great bodily harm. The defendant argued, as in this case, that only one sentence was proper since the offenses resulted from the same conduct. The court affirmed the convictions of armed robbery and one count of aggravated battery, but reversed the conviction dealing with aggravated battery with a deadly weapon. The court then stated:

“We are of the opinion that defendant’s conduct constituted armed robbery and one separate and distinct offense of aggravated battery. The initial striking of the victim by defendant, followed by the use of the knife, together constituted the use of force which was an element of the armed robbery. The judgment on the second count of aggravated battery (using a deadly weapon) is, therefore, reversed. It was after the robbery had been completed, however, with the taking of the watch, that defendant committed a separate crime by kicking the victim in the head, causing great bodily harm. In affirming convictions for two different crimes, we do not mean to imply that defendant’s acts of battery and robbery were wholly unrelated in time and fact; the evidence clearly indicates that there was a eonnection. However, the ‘conduct’ in perpetrating the two offenses was not the same conduct as it is defined in the statute quoted above [sec 2-4, ch 38]; the acts, and especially their accompanying mental state, were different, even though closely joined in time.”

We think the above remarks are applicable to the instant case. Therefore, we affirm the decision of the Circuit Court of Cook County.

Judgment affirmed.

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