author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Banks, Defendant-Appellant.
    Gen. No. 51,608.
    First District, Second Division,
    December 10, 1968.

      Edison L. Hoard, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

Defendant, Samuel Banks, was indicted along with Charles Bussie for the sale of narcotic drugs. Bussie was also charged with the unlawful possession of narcotics. A jury found both men guilty, and defendant, Samuel Banks, was sentenced to the Illinois State Penitentiary for a term of 10 years to 10 years and one day. Defendant Banks prosecutes his appeal to this court, contending that the evidence was insufficient to support a conviction for the sale of narcotics; that the trial court erred in allowing evidence of Bussie’s possession of narcotics; that evidence of Bussie’s inculpatory statement was improperly admitted; that the trial court improperly restricted cross-examination of a prosecution witness; that the conviction was obtained from evidence procured by entrapment; and that certain instructions to the jury were improper. Charles Bussie appealed his convictions directly to the Supreme Court. (People v. Bussie, 41 Ill2d 323, 243 NE2d 196 (1968).) That court affirmed his conviction for the illegal sale of narcotics, but reversed the conviction for illegal possession of narcotics.

This case involves a controlled sale of narcotics. The evidence for the State was as follows. After recording the serial numbers of 30-ten dollar bills, officers of the Narcotics Division of the Chicago Police Department, on June 24, 1966, went with the informers, Edward Palmer and James Small, to a tavern at 39th and State Street, Chicago, where they met with another informer. Nathaniel Clayton. Palmer and Clayton were searched by the officers, and Palmer was given the prerecorded bills. The three informers and the police officers proceeded in separate autos to 7033 East End Avenue in Chicago. Palmer and Small (the latter did not testify at the trial) then went to defendant’s apartment. There Palmer told the defendant that he wished to purchase three hundred dollars’ worth of marijuana. Defendant replied that he did not have that much on hand but that he would telephone his contact to see if it could be arranged. After going outside to make the phone calls, defendant and the two informers returned to the apartment, where they were joined by Clayton who had been waiting in the automobile. The four men were in the apartment for about 5 or 10 minutes during which time Palmer told defendant that he wished to buy about two pounds of marijuana. Defendant replied that he did not have that much, but soon would be in touch with his contact. They left the apartment, and after another phone call was made by defendant, the four men proceeded to an apartment at 8141 South Maryland in Chicago. Defendant and Palmer entered the apartment, and Charles Bussie sold one and three quarter pounds of marijuana to Palmer for $295. As Palmer and defendant emerged from the building and entered Clayton’s automobile, Palmer gave the police a prearranged signal. The police stopped the car, found the marijuana and arrested the defendant. Palmer accompanied the officers back to 8141 Maryland and indicated Bussie’s apartment. The officers were not admitted by knocking, so they broke down the door of the apartment with a sledgehammer. They searched the apartment and found a small package of marijuana. During the search of the apartment, Bussie returned, and a search of his person revealed one of the prerecorded ten dollar bills. Bussie told the officers that he had given the rest of the prerecorded money to a person called Mack.

Palmer and Clayton both testified that they had been drug addicts but that they had given up the habit.

For the defense, defendant testified that on the day in question he was visited by Small and Palmer. While Palmer was a stranger to him, he knew Small under the name of James Short. After visiting a tavern, they went in Clayton’s automobile to 8141 Maryland at Palmer’s direction. Palmer and defendant left the car, and defendant remained in the hallway of the building while Palmer went upstairs. A few minutes later, they returned to the car. The police then stopped the automobile and arrested defendant. The marijuana was found by the police on the front seat of the automobile between two of the informers while defendant was seated in the back seat. Defendant denied any knowledge of the bag, its contents or of the narcotics transaction. He was searched, and neither the prerecorded money nor narcotics was found on his person.

Prior to trial, Bussie’s motion to suppress the marijuana found in the search of his apartment was denied. State’s motion for consolidation of the indictments and charges, to which Bussie made no objection, was allowed over the objection of defendant.

Defendant first contends that there was no evidence adduced that he sold narcotics to anyone. We do not agree. The Uniform Narcotic Drug Act provides in part as follows:

“Sale means and includes traffic in, barter, exchange, or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, broker, agent, servant, or employee.” Ill Rev Stats 1967, c 38, § 22-2-11.

In People v. Aldridge, 19 Ill2d 176, 166 NE2d 563 (1960), the Supreme Court stated that to sustain a conviction for the unlawful sale of narcotics it was sufficient to show that the defendant participated in the transaction in some capacity, either as principal, agent, servant or employee.

In the instant case, evidence was presented to the jury that Palmer went to defendant’s apartment to purchase marijuana, and that the defendant, while unable to supply the requested amount, not only arranged for Bussie to supply the drug, but took Palmer to Bussie’s apartment where delivery was made. These acts by the defendant constituted active participation in the unlawful sale, and the defendant cannot escape guilt because neither the narcotic nor the money passed through his hands during the transaction. Defendant cites People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1959), in support of his contention that there was no participation in any unlawful sale. However the Boyd case was reversed because the court found that there was insufficient identification of the defendant. No such problem exists here.

While the testimony of the police informers, both admitted former drug addicts, should be subject to close scrutiny, it does not follow that such testimony must be disbelieved. People v. Drumwright, 48 Ill App 2d 392, 199 NE2d 282 (1964). The testimony of the informers and police officers was sufficient to sustain conviction.

Defendant next contends that the trial court erred in admitting evidence of Bussie’s possession of narcotics. Under this heading, he also urges that it was error to consolidate the indictments and charges for trial.

Where two defendants are jointly indicted for the commission of a crime, they are to be tried together; and whether a separate trial should be granted is largely within the sound judicial discretion of the trial court, People v. Grilec, 2 Ill2d 538, 119 NE2d 232 (1954). Only when the interests of the joint defendants are in fact antagonistic must the court grant separate trials. People v. Dolgin, 415 Ill 434, 114 NE2d 389 (1953). In the case at bar, there was no showing by defendant either prior to trial or during the course thereof that his defense was antagonistic to that of Bussie.

While the Supreme Court in People v. Bussie, supra, found that the search of Bussie’s apartment was improper and that the narcotics so discovered should have been suppressed, we conclude that their introduction into evidence was not prejudicial to defendant Banks. The small package of marijuana found in Bussie’s apartment was received in evidence only as to the charge of possession of narcotics against Bussie. At the time the State introduced that exhibit into evidence, the trial court sustained the objection of defendant, and it was received only as to Bussie. The jury was instructed that they would have to determine the guilt or innocence of defendant and Bussie separately. The jury was not misled, and evidence of Bussie’s possession of narcotics, although improperly admitted into evidence, was not prejudicial to defendant.

Defendant also urges that the trial court erred in admitting into evidence an inculpatory statement made by Bussie. At the trial, the police officer testified that Bussie stated that he had given the prerecorded money to a man known as Mack. Defendant made no objection to the introduction of the statement into evidence at the time of trial. The statement made no reference to the defendant, and we find that its introduction was not prejudicial to him.

Defendant next argues that the trial court committed reversible error in sustaining an objection to defense counsel’s request that Edward Palmer exhibit his arm to the jury. Palmer testified that he had been a narcotics addict, but that he had broken the habit and had not used narcotics for about eight months. He further testified that when he had used narcotics he took injections of heroin into his arms. On cross-examination, counsel for defendant asked the witness to exhibit his arm to the jury to see if there were fresh lesions on the arm. The trial court sustained the State’s objection to that request.

Ordinarily, defendant should be allowed on cross-examination to employ any proper method to attack the credibility of a prosecution witness. People v. Lewis, 25 Ill2d 396, 185 NE2d 168 (1962). In the Lewis

case the Supreme Court stated that it was reversible error to prevent the defense from requesting that a State’s witness exhibit his arm to the jury to determine whether there was indication of recent use of narcotics. However, the court stated that such undue limitation of cross-examination would constitute reversible error only if the judgment of conviction must stand or fall upon the credibility of that witness. See also People v. Washington, 81 Ill App2d 162, 225 NE2d 673 (1967).

Examining the evidence in the instant case in the light of the principle enunciated by the Supreme Court, it is evident that the judgment of the trial court can be supported by testimony other than that of Palmer. Nathaniel Clayton testified that he was present when Palmer and defendant made the arrangements for the transaction. Since the conviction can be supported by the testimony of Clayton and the police officers, we find that any undue restriction of the cross-examination of Palmer would not constitute reversible error.

The defendant also contends that his conviction was obtained by entrapment on the part of the police and the informers.

The defense of entrapment is incompatible with the claim that the defendant did not commit the acts constituting the offense charged. People v. Van Scoyk, 20 Ill2d 232, 170 NE2d 151 (1960); People v. Johnson, 24 Ill2d 195, 181 NE2d 164 (1962). These are logical holdings, because the defense of entrapment loses all of its meaning unless the acts charged are admitted by defendant. Defendant Banks had denied consistently any knowledge of a sale or purchase of narcotics; he cannot at the same time contend that he participated in the sale of narcotics as a result of fraud or trickery on the part of the informers. It should also be noted that the defense of entrapment was not raised at trial, but is argued for the first time in this court.

Finally, defendant contends that the trial court erred in the giving of State’s Instructions Nos. 12 and 13.

As to Instruction No. 12, defendant argues that it was a misstatement of the law with respect to the use of force by the police to enter a dwelling. This Instruction referred only to the entry and search of Bussie’s apartment. As we have noted, while evidence of Bussie’s possession of narcotics was improperly allowed into evidence, People v. Bussie, supra, such evidence was restricted to the charge against Bussie. The court also instructed the jury that they must determine the guilt or innocence of defendant and Bussie separately, and that they must consider the evidence against both men separately. Consequently, the introduction concerning the entry to Bussie’s apartment was not prejudicial to the defendant.

State’s Instruction No. 13 was as follows:

“Anyone who agrees, concerts, or in any manner offers to unlawfully sell or dispense narcotic drugs to any person, or negotiates to have any narcotic drugs unlawfully sold, dispensed or given commits the offense of sale of narcotic drugs.”

Defendant argues that the above instruction was incomplete and misleading to the jury.

In People v. Bussie, supra, our Supreme Court stated that the above instruction was incomplete in that it could lead the jury to conclude that a person had committed the offense of sale of narcotics even though a sale had never taken place. However, the court went on to say that an examination of the record clearly indicated that a sale did take place and that there was no substantial prejudice in the giving of the instruction. The jury also was instructed that a person who aids or abets another in the commission of an offense is accountable just as the principal. Defendant had arranged for the meeting between the informers and Bussie. One who so acts to promote or arrange a sale of narcotics is guilty of a sale which occurs even as is the actual seller of the drug involved. Defendant was not prejudiced by the giving of Instruction No. 13.

For the reasons stated above, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: SCHEINEMAN, J.

license: Public Domain

text:
    Theo. Hamm Brewing Co., a Corporation, Plaintiff-Appellant, v. First Trust & Savings Bank of Kankakee, a Corporation, Defendant-Appellee.
    Gen. No. 68-48.
    Third Judicial District.
    December 11, 1968.

      Gray, Mclntire & Petersen, of Kankakee, for appellant.
    Edwin Sale, of Kankakee, for appellee.
   SCHEINEMAN, J.

Harold E. Lape was a beer distributor for the plaintiff. In July of 1962 he obtained a loan from the defendant bank for which he gave a Security Agreement and Consignment covering an inventory of beer in containers, and with an after-acquired property clause. This document was filed with the Secretary of State, together with a Financing Statement as required by law in order to perfect its Security Interest.

Lape failed to keep up his payments to the bank according to his arrangements so that early in December of 1968 the bank took possession of the property Lape had on hand and thereafter sold it.

In the meantime the plaintiff was also having trouble over collections from Lape. He had asked Hamm’s for a three-load credit in a letter dated in April, 1961, which enclosed a financial statement. Hamm’s refused this because of his “very small net worth.” However, sometime later they did place him on a one-load credit.

Early in 1963 Lape’s checks began to be returned because of insufficient funds. In May, plaintiff tried to set up a system of operations for Lape, stating in a letter to him that he had to accrue a profit that summer or be in “desperate financial shape.”

This proved to be prophetic. From time to time checks drawn by Lape would be returned for insufficient funds. In December on the 9th, 12th, 16th and 19th he bought loads of beer for which he gave checks, all of these checks were returned for insufficient funds. Thereafter Hamm’s was disposed to repossess the beer but found it had already been taken by the bank. Another creditor of Lape had obtained a judgment against him on December 2,1963, for more than $9,000.

The foregoing data appears from pleadings, motions, exhibits and affidavits on file in a suit wherein plaintiff asserted the right of a seller to possession of goods sold upon a written representation of solvency given by Lape, having reference to the checks that failed to clear. The bank denied that checks were a representation of solvency, and also claimed it stood in the position of a purchaser. The court decided the argument in favor of the bank and gave it a judgment on the pleadings dismissing the complaint with prejudice. Hamm’s brings this appeal.

The parties are in agreement that the applicable law must be found in the Uniform Commercial Code which appears in chapter 26, Ill Rev Stats, but they disagree as to the proper interpretation of its various provisions. The numbers in this opinion refer to the section numbers of the Code in chapter 26.

Section 2-702(2) provides for reclaiming goods by a seller within 10 days if the buyer was insolvent. “But if misrepresentation of solvency has been made to the particular seller in writing within 3 months before delivery, the 10-day limitation does not apply.”

The bank’s security interest in the beer as inventory, under 9-109 was properly perfected pursuant to 9-302. Thus, with the after-acquired property clause in the Security Agreement, the bank should be entitled to priority in the beer as against Hamm’s unless Hamm’s complied with 9-312 or unless Hamm’s is entitled to reclaim the beer under 2-702(2) previously quoted. Hamm’s did not avail itself of 9-312 protection, and thus relies solely on its argument of right to the beer under 2-702 (2). Hamm’s attempt to take possession of the beer came more than ten days after the delivery of the last load of beer, and thus the only provision of section 2-702(2) available to Hamm’s is that permitting reclamation without regard to the ten-day limitation if a written misrepresentation of solvency is made within three months before delivery.

The writings of Lape’s which appear in the exhibits and affidavits incorporated in the pleadings and relied upon as representations of solvency received in the three months prior to final delivery, consist of checks for the loads. The issue is thus presented whether the checks here constituted written misrepresentations of solvency. We view the question of the status of the checks as a question of fact. The parties have not directed the court’s attention to any cases discussing the issue in relation to 2-702(2) nor have we been able to find any. However, other questions involving the conduct of parties in certain circumstances having consequences under the Code have been treated as questions of fact, e. g., preservation of collateral, Travers v. Liberty Bank, 5 UCC Rep 535 (Mass Sup Ct 1967), and in other areas, the Code itself directs when an issue is to be determined by the court as a matter of law, i. e., 2-302. Further, occasions can be imagined where the same writing is a representation of solvency in one instance, but would not be in another, depending upon the surrounding circumstances. Under pre-Code law in Illinois, requirements for reclamation from a buyer, such as intent, were treated as questions of fact, e. g., Huthmacher for Use of Levy v. Lowman’s Sons, 66 Ill App 448.

The Code could have usurped the whole field of law as to commercial transactions, but it does not purport to do so. By 1-103 it states that certain rules of common law may still be consulted on a number of subjects, including such items as misrepresentation, and fraud.

The trial court here entered judgment on the pleadings for the defendant Bank. We could therefore affirm the trial court judgment only if the undisputed facts in this case submitted in the form of affidavits and exhibits would permit the trial court to rule that as a matter of law, the facts here did not permit Hamm’s to utilize the rights accorded by 2-702(2), i. e., that the checks and the use thereof did not amount to representations of solvency.

Although 2-702(2) does not so prescribe in express terms, an implicit requirement of the section is that the particular writing be treated as a representation by the seller. While the check can comply with the literal requirements of a writing, i. e., in writing, addressed to the particular seller and dated within three months of the delivery, unless the writing is treated by the seller as a representative, he should not be accorded the benefit of the section.

At least one indication of treatment of a writing as a representation is whether the seller relied upon the writing as an element in determining its course of dealing with the buyer. Section 2-702(2) does not specifically require reliance; however, the concept is present by implication. In reasonable commercial expectation, the seller does not expect his buyer to be insolvent, and relies on this expectation.

Official Comment indicates that any receipt of goods on credit is a tacit representation of solvency. Thus if reliance was not relevant in any case, the presence of a writing as a determinative factor would be meaningless. Cases decided in Illinois involving misrepresentation in commercial transactions are of guidance here, and can properly be considered, as above noted. In cases such as American Merchant’s Union Exp. Co. v. Willsie, 79 Ill 92; Schweizer v. Tracy, 76 Ill 345, reliance was an obvious element, as it has always been in the Illinois law of misrepresentation.

In determining whether a party had a right to rely on false representations, the representations must be viewed in light of facts of which the injured party had, or could by exercise or ordinary prudence, have had knowledge. Morel v. Masalski, 333 Ill 41, 164 NE 205.

One who claims fraud in representations that turn out to be false, must have relied thereon. 23 Am Jur, Fraud and Deceit, § 141, p 939. One does not rely on representations who does not believe them. 23 Am Jur, id., § 143.

If treatment by the seller of the writing as a representation and reliance by the seller was not necessary, 2-702(2) could be utilized to protect a seller who knows full well that his buyer is insolvent, but continues to sell to him, then reclaims the property when the buyer does not pay as promised or when another party appears on the scene. Section 1-203 requires dealing in good faith, and this requirement would not be met by the conduct just described, and would seem to require that a seller not be able to profit by such a course of conduct.

Hamm’s had in its file a financial statement of Lape as of December 31, 1962, which showed a net worth of about $4,000. For several months thereafter there was a constant recurrence of Lape’s checks returned because N. S. F. or where the signature was not authorized. Then Lape and his wife delivered to Hamm’s a demand note for $10,000 dated May 9, 1963. If Hamm’s were dealing in “good faith” they would have to know that an honest, financial statement by Lape, showing this note as a liability, against $4,000 net worth of 5 months previous thereto, would make him insolvent.

Of course the $9,000 judgment of Dec. 2, 1963, would also make him insolvent, but Hamm’s claim they had no knowledge or notice of this judgment, and we must accept that statement as true. But they knew that their elaborate plan for the guidance of Lape, presented in May, had not been working as hoped, his checks continued to be dishonored so that payment for beer was frequently delayed. And they certainly knew that his check for $4,178.09 in late September was dishonored for N. S. F. With all the knowledge and experience Hamm’s had with Lape, they proceeded to sell him loads of beer in December to the extent that they claim over $12,000 for three loads.

We cannot regard these facts as showing any basis for reliance on previous or current checks as true representations of solvency; this type of conduct cannot be regarded as the “good faith” required by 1-203, nor is it any indication of “ordinary prudence.”

In our opinion this situation justified the judgment for the defendant, so that we need not consider any other point. The judgment is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDEE, J., concur.


text:
    Harry E. Schoen, Plaintiff-Appellant, v. Caterpillar Tractor Co., a Corporation, Defendant-Appellee.
    Gen. No. 68-57.
    Third Judicial District.
    December 11, 1968.

      Moehle, Moehle, Reardon & Sincock, of Pekin, for appellant.
    Miller, Westervelt & Johnson, of Peoria, for appellee.
   SCHEINEMAN, J.

The plaintiff brought this suit for damages charging defendant with breach of an oral contract to employ him. The defendant filed a motion for summary judgment, attaching copies of the complaint, the answer, and the pretrial deposition of the plaintiff. In the latter plaintiff stated the conversation he had with defendant’s employing officer, which disclosed there was no definite term of employment specified. Thereupon the trial judge allowed the motion and entered summary judgment against the plaintiff.

On this appeal, it is not contended that the alleged contract specified any definite term of employment. But it is asserted that there was an issue of fact raised by the complaint and answer, therefore it was not proper to enter a summary judgment.

There was no counteraffidavit filed attempting to deny the contents of the plaintiff’s deposition. It is eminently clear therefrom that no term of employment was agreed upon. This presented a question of law for the court. It does not matter that there is an apparent issue of fact raised by the complaint and answer. It is well settled that such purported issue cannot prevail when the affidavit discloses there is no issue of fact to be tried. Pefferle v. Prairie Mills, Inc., 72 Ill App2d 440, 218 NE2d 247; Solone v. Reck, 32 Ill App2d 308, at 311, 177 NE2d 879.

Where admissions in the deposition of a party are not controverted or even attempted to be controverted, it is proper to test the legal effect of the admitted facts by summary judgment procedure. Allen v. Meyer, 14 Ill2d 284, at 291, 152 NE2d 576; Meier v. Pocius, 17 Ill App2d 332, 150 NE2d 215.

Where an executory contract fixes no time it is to be continued in force, it is terminable at the will of either party. First Mission Covenant Church of Rockford v. Rockford Broadcasters, Inc., 324 Ill App 8, 56 NE2d 632; Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill 215, 98 NE 263; Atwood v. Curtis Candy Co., 22 Ill App2d 369, 161 NE2d 355; Gage v. Village of Wilmette, 315 Ill 328, 146 NE 325.

Notwithstanding this well known rule of law, and ignoring plaintiff’s statement that, under the alleged contract, he could quit any time he desired, it is contended that the rule does not apply in this case. The reason given is that defendant told him he would have to quit his current employment in order to work for defendant, and that he did quit.

It is argued that this was a detriment to him and thus was consideration for an agreement by defendant to employ him. But there is no evidence that giving up his current employment made him unemployable. On the contrary, he testified to having worked for a number of employers up to the date of the hearing, and at that time was earning higher wages than the defendant had offered.

“Where there is no particular detriment to the employee, the act of terminating other employment is not a sufficient consideration to make the new contract binding.” Heuvelman v. Triplett Electrical Instrument Co., 23 Ill App2d 231, at 235, 161 NE2d 875.

In Illinois, mutuality of obligation is essential to make an executory contract enforceable. Since the Caterpillar Company could not enforce it against Schoen, he cannot enforce it against the company. Vogel v. Pekoc, 157 Ill 339, 42 NE 386; Meadows v. Radio Industries, 222 F2d 347; Goodman v. Motor Products Corp., 9 Ill App2d 57, 132 NE2d 356.

The entry of summary judgment in this case was proper and it is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Cornelius Prince Skinner, Defendant-Appellant.
    Gen. No. 52,904.
    First District, Fourth Division.
    December 11, 1968.

      Harry B. Madsen, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This appeal is from a judgment after a bench trial in which defendant was found guilty of armed robbery. He received a sentence of five to twenty years in the penitentiary.

Contentions on Appeal

1. There was a fatal variance between the indictment and the proof.

2. Prejudicial evidence concerning the defendant’s past record was injected by the prosecution and prevented a fair trial.

3. Oral statements of defendant were improperly admitted into evidence.

4. Defendant was not proven guilty beyond a reasonable doubt.

Evidence

Testimony of William Ridley, for the State

He is the clerk at the Crest Hotel and was on duty during the early morning of April 1, 1962. Three armed men came into the hotel that morning and took $22 in cash from him, took his wallet and $116 from the hotel’s cash drawer. He slipped away from the robbers and locked himself in a room. Shortly after he came out of the room the police arrived. He went out to a police car and identified the man who was sitting inside as one of the robbers. That man was Willie Craft. He was then taken to the police station and picked Craft and defendant out of a lineup. There was one other man in the lineup and the witness had a close look at him before deciding that he was not one of the robbers. He asked the defendant where his wallet was. Defendant told him: “Where the police picked me up”; and the police supplied the precise address. In the police station he heard Craft, in the presence of the defendant, say that he (Craft) owned the two guns and that he had given one to the defendant.

Testimony of Charles Dalton, for the State

He is the manager of the Crest Hotel and lives in an apartment in the hotel which has its front door opening directly on the lobby. He observed the robbery from his door and was able to see the face of only one of the robbers; he could see the face of Willie Craft. Another of the men was dressed in a beige raincoat and cap; he saw that man later at the station and it was the defendant. He never saw the defendant’s face during the robbery. He called the police from a private phone in his apartment.

Testimony of William Moser, for the State

He is a police officer from the 12th District. Early in the morning of April 1, 1962, he received a call reporting a robbery and as he got to the scene of the robbery he saw three men running from the Crest Hotel. The three men split up and he chased one into an alley and captured him as he tried to climb a fence. The man he apprehended was Willie Craft.

He took Craft to the station where Craft was placed in a four man lineup. William Ridley picked Craft and the defendant out of the lineup; Ridley also took a close look at one other man in the lineup.

Testimony of Biaggio Panepinto, for the State

He is a police officer who went to the Crest Hotel the morning of the robbery. When he and his partner arrived at the scene they chased two men into an alley near the hotel. The two men split up near the back of the alley and he chased one of them into a yard. His partner lost the other man and returned very shortly to help search the yard. In the yard they found the defendant hiding under a porch; further search revealed a Derringer pistol hidden in a woodpile a few feet from where the defendant was found. At that time the defendant denied complicity in the robbery and denied ownership of the pistol. They then took defendant to the police station where he was questioned by a detective; Craft was questioned at the same time. At that time Craft said that he owned the Derringer and another weapon (a .45) and that he had lent the Derringer to defendant. Defendant then said: “I was the other fellow who had the Derringer.” The defendant was then placed in a lineup with Craft; they were the only two in it, and Mr. Ridley identified them both.

Testimony of Willie Craft, for the defense

He robbed the Crest Hotel early in the morning of April 1,1962, with two other men: Killer and James Jack. Jack had a .25 automatic, he had a .45, and he let Killer use a Dunchen .22. (Witness identified People’s Exhibit 1 as the gun which he let Killer use.) Jack had on a gray overcoat and a blue suit; Killer had on a khaki trench coat and a brown corduroy cap.

After the robbery they all ran out of the hotel and he ran in a different direction from Jack and Killer. He ran into an alley a few feet from the hotel entrance which turned out to be dead end and he was captured there. He was taken to the police station and did not see either Jack or Killer there. He was put into a lineup with two men whom he had never seen before; one of them was the defendant. Ridley identified him immediately. Ridley also identified another man (not defendant) saying, “I don’t know, because I don’t want to cause an innocent man trouble .... He looks like the one because he is the one that had on the gray trench coat.” Ridley then identified defendant.

He never told the police that defendant and he had planned the robbery. He never told the police that defendant was involved in the robbery at all. The police then took him upstairs and threatened to beat him; then he told them that defendant was one of the holdup men.

Testimony of Cornelius Prince Skinner, the defendant

Early in the morning of April 1, 1962, he was walking west on Jackson Boulevard on the north side of the street. As he was walking along a fellow came running out of an alley and said that he had thrown a pistol and wallet up the alley. He said that defendant could have it if defendant got it; he also said that the police were chasing him. The fellow had on a white trench coat and a white hat; defendant had on a beige raincoat and a brown corduroy hat.

Defendant didn’t see anybody coming so he walked up the alley to look for the gun and wallet. When he got to the back of the alley he saw the police coming; he went through a gate and hid under the steps. He did not find the gun. The police found the gun very near to where he had been hiding. He never admitted to them or to anyone else that he had been in on the robbery. Defendant told Mr. Eidley where he could find his wallet because defendant assumed that Eidley’s was the wallet that the fellow who came running out of the alley was talking about.

That morning defendant was on his way home by way of his mother’s. He lives at 2159 West Madison, his mother lives on Monroe and Wood, he was coming from Halsted and Washington. He was walking on Jackson, which is out of his way, because it is a lit street and he knows the neighborhood. The fellow who came out of the alley was running very slowly; he told defendant that he had thrown the gun and wallet over the fence and pointed back toward the yard.

Opinion

The defendant argues that since the indictment charges that the defendant took $138 from the person and presence of William Eidley and since Eidley testified that only $22 of the money belonged to him, there is a fatal variance between the indictment and the proof because the indictment did not name any other victim (thus leaving $116 unaccounted for).

The relevant statute defines robbery as the taking of “property from the person or presence of another by the use of force or by threatening the imminent use of force.” Ill Rev Stats 1967, c 38, § 18-1. The gist of the offense is the taking; the ownership of the property taken is unimportant; its possession by the victim is adequate for the purpose of establishing the crime of robbery. People v. Renallo, 410 Ill 372, 101 NE2d 116; People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404; People v. Smith, 90 Ill App2d 388, 234 NE2d 161. In the instant case $138 was taken from the person and possession of Ridley. There is no variance between the indictment and the proof.

Defendant urges that he was prejudiced by the prosecutor’s reference to his prior criminal record. However, the existence of defendant’s prior criminal record was first made known to the court by defendant himself during cross-examination:

Q. When the police came up, didn’t you tell them about this fellow that ran by and threw this?
A. They didn’t ask questions. Told me to come out.
Q. What were you hiding for? You hadn’t done anything, had you?
A. Well, see, sir, I has a record and indicating that gun, I am looking for the gun, they figured I am up to something wrong.
Q. Well, despite the fact you had a record, you still went looking for the gun?
A. Yes.

It is clear that it was the defendant who injected his prior criminal record into the proceedings and that his statements were not in response to a question designed to elicit that information. The question which drew the response followed logically along the pattern of cross-examination which was attempting to break down Skinner’s explanation of what he was doing in the yard in which Ridley’s wallet and the gun were found. Defendant’s own reference to his criminal record did not constitute prejudicial error. People v. Musinski, 22 Ill2d 518, 520, 177 NE2d 142; People v. Ellis, 85 Ill App2d 87, 229 NE2d 395.

Defendant next argues that all evidence concerning his oral statements to police officers should be excluded since defendant was not apprised of his constitutional rights. However, defendant counsel’s failure at the trial to object specifically to the admission of this evidence on this ground and to move for the suppression of the evidence bars raising the point on appeal. People v. McMath, 40 Ill2d 388, 240 NE2d 593. Furthermore, since the instant trial occurred in 1962, the decision in 1966 in Miranda v. Arizona, 384 US 436, requiring that an accused be apprised of his constitutional rights is inapplicable. Miranda is not retroactive. Johnson v. New Jersey, 384 US 719.

' Defendant also claims he was not proven guilty beyond a reasonable doubt. Where a cause is tried without a jury the law commits to the trial judge the determination of the credibility of the witnesses and the weight to be given to their testimony and unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt, the finding of the court will not be disturbed. People v. Reaves, 24 Ill2d 380, 382, 183 NE2d 169; People v. Moore, 76 Ill App2d 326, 332, 222 NE2d 95.

In finding defendant guilty the court commented on the evidence and in part stated:

I don’t recall ever hearing a witness in this court that spoke with such conviction and sincerity as Mr. Ridley.
So, I just don’t believe Skinner at all. And I don’t believe Willie Craft when he said that Skinner was not in this robbery.

From this record we find defendant was proven guilty beyond a reasonable doubt.

The judgment of the Circuit Court is affirmed.

Affirmed.

McCOKMICK, P. J. and ENGLISH, J., concur.

       This appeal was initially filed in the Supreme Court and was transferred to this court.

       Willie Craft was a co-defendant in this case and pleaded guilty.

       Counsel for defendant did object to the admission of the oral statements on the ground that he had not been advised that there were oral statements. However, the record shows that defendant was so notified.


author: ME. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee v. Freddie Jackson, Junior, Defendant-Appellant.
    Gen. No. 51,248.
    First District, Fourth Division.
    December 11, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE ENGLISH

delivered the opinion of the court.

Offense charged

Eape. (Ill Eev Stats (1963), c 38, § 11-1.)

Defense at trial Consent.

Judgment

After a jury trial, defendant was found guilty and sentenced to a term of 20 to 40 years.

Points raised on appeal

(1) The evidence did not prove defendant guilty beyond a reasonable doubt.

(2) Defendant was denied a fair trial by the introduction of evidence of other crimes and of defendant’s silence in the face of purported accusations.

(3) The mitigation hearing was inadequate.

(4) The sentence was excessive.

Evidence

Prosecutrix, for the State

She was nineteen years old and a second-year student at the University of Chicago, living on campus and employed part time in the University art library located on the fourth floor of Goodspeed Hall. She brought some lunch with her to work, and never left the building to go out for lunch.

On Sunday, May 16, 1965, she went to the library at 1:00 p. m. and opened it for the use of any students who might care to study there. Being Sunday, there was no one in the building except three or four girls studying in the library.

After working for about twenty minutes, she left the library for the nearest women’s rest room, which was on the second floor. While descending the stairs, she noticed a negro man, whom she had never seen before (later identified in court as defendant), ascending the stairs from the first floor. Thinking his presence there strange on a Sunday afternoon, she decided that if he were going to the library, she should be there to attend it. She asked him what he was doing there. He replied by asking if the library were open. She said yes, and ascended the stairs with him, inquiring if she might be of assistance. As she passed ahead of defendant, he grabbed her from behind, put his hand tightly over her mouth and nose, and produced a knife which he held in front of her eyes. The blade of the knife was thin and pointed and about a foot long. Defendant was approximately six feet tall and weighed about 190 pounds. She was five feet, five inches tall and weighed 117 pounds.

With his hand over her mouth, defendant then forced her down the stairs to the second floor and into the women’s rest room, the whole time holding the knife in front of her so she could see it, and warning her not to scream. He told her that if she did what he told her to do, he wouldn’t hurt her. Then he forced her into a toilet stall and locked the door behind him. He started to unbutton her blouse, so, to avoid injury, she removed her blouse and skirt. He then placed the knife in his belt and forced her to submit to two different oral-genital acts. Again he drew the knife to force her cooperation, and told her to keep her eyes closed so she wouldn’t remember him. At that point, a woman entered the washroom, and the defendant put his feet up on the toilet seat so that his presence would not be observed. When the woman left, defendant again displayed the knife, and had intercourse with the prosecutrix. After the act, she dressed, and he told her not to report the incident to the police because he knew where she worked and he would return to harm her. He then asked for her telephone number. Being afraid not to do what he said, she gave him the dormitory number where she lived, knowing that the one number was for about 300 girls. Defendant told her to remain in the rest room for five minutes, and he then left. During the whole incident she couldn’t help shaking from fright, but she never cried out for help as she knew it would do no good with only three girls two flights upstairs and he with a knife. Also, she was afraid of getting hurt and she wanted to get it over with as soon as possible. He warned her that if she told the police he would be back, because he knew where she worked.

At defendant’s direction, she stayed in the rest room for five minutes after he left and then returned to the library, where she confided in a friend, Judy Lichtenstein, her experience with defendant. Prosecutrix was afraid to call the police, so Miss Lichtenstein then phoned the police. Later that day, prosecutrix described defendant and the incident to the police, and went to the hospital where she was given a smear test.

Five days later, it was discovered that she had gonorrhea and she was hospitalized for two weeks because of it. She next saw defendant on June 3, 1965, while in the hospital. She identified him from his appearance and his voice.

Judy Lichtenstein, for the State

She was a student at the University of Chicago who had known the prosecutrix for two or three years, as they both worked in the library. On May 16, 1965, she was at the art library with the prosecutrix at 1:00 p. m., when it opened. At about 1:15 to 1:30 she saw the prosecutrix leave, and at about 2:00 o’clock she saw her return, pale, nervous, and shaking. The prosecutrix then pulled her aside and asked her if she had seen a man of the defendant’s description with a knife. She was then told what had happened in the women’s washroom. She immediately called the police, who arrived within a few minutes.

Police Officer Fred Hills, for the State

On June 3, 1965, at approximately 9:00 p. m., he investigated a report that a man was seen in the washroom of the Harper Library of the University of Chicago. There had been three or four rapes in the vicinity, and there were three or four fellows the police were looking for. Defendant fitted the description of one of the assailants, so they arrested him when they saw him in the hallway of the library, and defendant had no reasonable explanation as to what he was doing there. He searched defendant and found a pocket knife. That evening he took defendant to the hospital where the prosecutrix positively identified defendant, who said nothing at that time.

Police Officer Edward Spellar, for the State

He joined Officer Hills when defendant was first arrested at the Harper Library, which is about 250 feet from the art library. He later returned to homicide headquarters where he interrogated defendant. Defendant denied raping or having sexual intercourse with prosecutrix. He refused to answer as to whether he knew the prosecutrix.

Police Detective Joseph Marin, for the State

On June 4, 1965, he accompanied defendant to defendant’s apartment. Upon searching the apartment, he found a bottle of pills with a prescription dated 5-12-65. Defendant stated that it was medicine he was taking for treatment of venereal disease.

Richard Moy, for the State

He is a licensed doctor. He first saw prosecutrix the day following the alleged attack. He examined the notes of the examining physician who had seen her in the emergency room. He saw her several more times until she was hospitalized after diagnosis of gonorrhea. The examination on May 17, 1965, was too early to disclose the disease, but he expressed the opinion that the development of the disease was compatible with her having received the infection at the time of the alleged attack.

Lillian Kane, for the defense

She is supervisor of the medical records department at the University of Chicago Hospitals and Clinics. The records show that the prosecutrix was examined at 2:50 p. m. on May 16, 1965; that she was found to be infected with gonorrhea on May 26; and that she was hospitalized from May 30 through June 4. The prosecutrix was seen again at the Clinic on the 7th, 11th and 16th of June.

Defendant was first seen on May 12, 1965, and an examination revealed an impression of gonococcal urethritis. No treatment was shown on May 12. His next examination was on May 19. A finding was made of myalgia, and he was referred to the employees’ health service. There was no further record of defendant.

Freddie Jackson, Jr., defendant, on his own behalf

He was born in Jacksonville, Florida, and came to Chicago in 1965 at age of twenty-two. On May 7, 1965, he began to work as an animal technician for the University of Chicago. He first met the prosecutrix in the park during his lunch hour two days later (a week before the alleged offense), and they had a short conversation. A few days later, they met again at a shop where he bought lunch. She was in a hurry, so she gave him her telephone number. He called, but could not remember her last name; so the dormitory switchboard could not connect him.

He had seen a girl, who is now his fiancee, on the evening of May 15 at her home, as he had done four or more times during the week he had been working for the university.

On May 16, by prearrangement, he met the prosecutrix on the stairway of Goodspeed Hall at approximately 11:30 in the morning. They met on the second floor and began talking. She pulled him to the stairway landing, holding his hand. This led to kissing and necking, and she was pleased. Finally, they went to the women’s rest room on the second floor, where she consented to and cooperated in an act of intercourse with defendant. He denied that he had shown her the knife which he had, and denied the use of any threats or force. While they were having intercourse, someone entered the washroom and the prosecutrix signaled him to be quiet. After the act, he told her that he had gonorrhea and that he wanted her to get a checkup. She became quite upset over the fact that he might have infected her. She called him a “nigger” and said, “You niggers are all alike.”

Charles Pace, for the defense

He is also an animal technician at the University of Chicago. He met defendant when defendant began working for the university early in 1965. It may have been in May 1965. He considers defendant a good friend, and introduced him to the girl “he now calls his fiancee.” He had seen defendant with the prosecutrix prior to May 16, 1965, as they were coming back from lunch one day. He assumed it was the prosecutrix, as defendant had told him he had been seeing a girl, and defendant was supposed to have known only one girl, because he was new in town. He did not know the prosecutrix personally.

Arthur White, on rebuttal for the State

He is a Security Officer for the University of Chicago, in charge of security at Goodspeed Hall. On Sunday, May 16, 1965, that building was opened about five or ten minutes before 1:00 p. m. At that time of year it was open from 1:00 p. m. to 10:00 p. m. so that the students could study.

Opinion

(1) Defendant claims that the evidence did not prove beyond a reasonable doubt that his act of intercourse with the prosecutrix was performed “by force and against her will.” Ill Rev Stats (1963), c 38, § 11-1. He claims that her cooperative behavior showed sufficient voluntary submission to amount to consent. He points to such facts as her removal of her own clothes, her failure to cry out, even when another woman entered the rest room, and her hesitancy in telling anybody and in calling the police.

Defendant argues that to prove the crime of rape against a female who has the use of her powers and faculties, the evidence must show such resistance as will demonstrate that the act was against her will; citing People v. Scott, 407 Ill 301, 95 NE2d 315, and other cases. There is, however, no set and definite standard as to the degree of force or amount of resistance required. It is a determination which must be made from the facts and circumstances of each case. People v. Smith, 32 Ill2d 88, 203 NE2d 879; People v. Faulisi, 25 Ill2d 457, 185 NE2d 211. It is true that when the alleged victim retains the power to resist, voluntary submission, no matter how reluctantly yielded, amounts to consent. People v. Rossililli, 24 Ill2d 341, 181 NE2d 114. On the other hand, resistance is not necessary under circumstances where resistance would be futile and endanger the life of the female, as where the defendant is armed with a deadly weapon. Likewise, resistance is not necessary where she is so overcome by superior physical strength or paralyzed by fear that she would be powerless to resist her assailant. People v. Faulisi, 25 Ill2d 457, 185 NE2d 211; People v. Smith, 32 Ill2d 88, 203 NE2d 879; People v. Elder, 25 Ill2d 612, 186 NE2d 27; People v. Oatis, 74 Ill App2d 103, 220 NE2d 71; People v. James, 62 Ill App2d 225, 210 NE2d 804.

It appears, from the unshaken testimony of the prosecutrix in this case, that she was overpowered by defendant in a building that was almost deserted. He was described as six feet tall and weighing about 190 pounds. She stood five feet, five inches tall and weighed 117 pounds. He held her mouth in such a way that it was difficult to breathe, and from time to time displayed a long-bladed knife. He forced her to enter a toilet stall, and locked the door behind him, his body blocking even that means of escape from the cramped space. Further, no reasonable prospect of assistance in the practically deserted building was present to respond to any cry for help. From this testimony it is apparent that resistance would have been futile and would have endangered the life of the prosecutrix. Indeed, resistance would have been foolish under the circumstances.

To sustain a conviction for rape, the testimony of the prosecutrix must either be clear and convincing in the light of all the evidence, or be corroborated by other facts and circumstances. People v. Qualls, 21 Ill2d 252, 171 NE2d 612; People v. Oatis, 74 Ill App2d 103, 220 NE2d 71. We believe that the testimony of this prosecutrix was sufficient by itself to sustain the conviction, but it was also corroborated by other evidence which supports the jury’s decision. Kinds of evidence present here, which have been recognized as strong corroboration, are: a complaint by the victim soon after the occurrence (or at first opportunity), People v. Scott, 407 Ill 301, 95 NE2d 315; proof or admission of intercourse by the defendant, People v. Smith, 32 Ill2d 88, 203 NE2d 879; and the physical appearance of the victim after the occurrence, People v. James, 62 Ill App2d 225, 210 NE2d 804. Here, there is the testimony of Miss Lichtenstein that she saw the prosecutrix leave the library, and that upon her return approximately a half hour later, she was pale, nervous, and shaking; that the prosecutrix told her of the occurrence while in a very agitated state; and that she called the police because the prosecutrix was too frightened. We conclude that the failure of the prosecutrix to offer physical resistance in this case did not, by any means, amount to the giving of her consent.

The question of the credibility of the witnesses is, of course, a matter essentially for the jury’s determination. In this regard, we note that there was contradictory evidence on matters other than whether force was used. Defendant testified that he had phoned the prosecutrix at the dormitory before the incident and that, since he couldn’t pronounce her last name, he couldn’t reach her. The prosecutrix, who was the first witness, testified that she had not received a call before the incident, but that a man had called the dormitory the day after the incident and asked for “the girl who works in the art library,” whose name he didn’t know. This is in accord with her statement that she had not given him her phone number prior to the incident.

The prosecutrix testified that she never went out to lunch, whereas defendant stated that he had seen her twice at lunch time, once in the park and once at a lunch shop.

Defense witness Pace, a coemployee of defendant as an animal technician, testified that he introduced defendant to his present fiancee; that he had seen defendant with the prosecutrix about a week prior to May 16 as defendant was coming back from lunch; that he didn’t know her features or face, and her back was to him; that defendant told him that he had just lunched with his girl friend and he knew defendant had reference to the prosecutrix “only because he had told me before, a couple of days before, that he had been having lunch and seeing her at the time. And this was the only girl he was supposed to have known at the university because of his newness.” Yet defendant testified that he was introduced to his present fiancee at the laboratory by a technician on May 7, the day he started work, and that he had been at her home three or four times, maybe more, prior to May 15.

Defendant testified he came to Chicago in 1965, but didn’t remember the exact date; he went to work at the university on May 7. Witness Pace testified that he first met defendant when the latter first came to work at the university; it was around the first of the year.

In view of the conflicts in testimony between defendant and the other witnesses, even including his own “supporting” witness, it is not surprising that the jury believed the straightforward account of the prosecutrix.

(2) Defendant next contends that there was trial error both in the introduction against him of evidence concerning separate and unrelated crimes, and in repeated reference to defendant’s silence when he was taken before the prosecutrix on June 3, 1965. First, defendant points to the testimony of the arresting officer, Fred Hills. Hills stated that defendant had no explanation for his presence in the Harper Library. He went on to say:

And we were looking for a man for rape. We had about three or four rapes at the time in that area, there were three or four different fellows we were looking for, and he fit the description of him, so we placed him under arrest and took him to the security office.

Defendant seems to be under the impression that the reference to “three or four rapes” amounted to an accusation that he had committed them. That is simply not correct, however, as the statement in no way implicates the defendant in any other offense than that for which he was on trial. It merely explains the reason for arresting defendant at that time. The general rule excluding evidence of the commission of other crimes by an accused, is inapplicable under the facts of this case. People v. Cage, 34 Ill2d 530, 216 NE2d 805; People v. Gleason, 36 Ill App2d 15, 183 NE2d 523.

Defendant also claims that he was prejudiced by reference to defendant’s silence, when confronted with prosecutrix in the hospital. Officer Hills stated that defendant said nothing when he was identified as the assailant. The State’s Attorney referred to this incident several times in his closing argument, both to discredit defendant’s testimony and to infer an admission. To establish such a tacit admission, it must affirmatively appear that the defendant knew he was being asked about the crime for which he is on trial, for it is the assumption that one similarly situated would ordinarily deny imputation of guilt. In such a situation, evidence of this sort is

received with great caution, and only when the conditions which make it admissible clearly exist, because there are some circumstances in which it is not reasonable or opportune to respond. When such failure to respond is admissible, the prosecutor may comment upon it during his argument to the jury. People v. Aughinbaugh, 36 Ill2d 320, 223 NE2d 117; People v. Smith, 25 Ill2d 219, 184 NE2d 841; People v. Bennett, 3 Ill2d 357, 121 NE2d 595. It appears that defendant knew of the charges and, under the circumstances, the opportunity for response was clearly present, and it would have been reasonable for him to reply. Not only was he brought before a girl he claimed as an acquaintance, who had consented to have intercourse with him, but the police had him repeat remarks which the prosecutrix said he had made on the day of the occurrence.

If error were considered to exist on this point, we do not believe it to have been so prejudicial, under all the circumstances of the case, as to require reversal.

(3) Defendant next contends that the mitigation hearing did not adequately supply the sentencing judge with sufficient information. Such mitigation and aggravation hearings are controlled by statute. Ill Rev Stats (1963), c 38, § 1-7(g). It reads as follows:

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

The object of this statute is to carry out the apparent legislative policy of avoiding arbitrary punishment, and to guarantee, so far as possible, that the penalties imposed on convicted persons will be proportionate to the

offense and tailored to the past record and rehabilitation potential of the offender. See Ill Rev Stats (1963), c 38, § 1-2 (c), (d). When such a hearing is held, however, the sentencing judge is limited by what the parties present for his consideration. People v. Smith, 62 Ill App2d 73, 210 NE2d 574. Although there was no presentence investigation in the present case, the court had sufficient evidence before it to decide intelligently on the proper sentence. After the jury was discharged, the trial judge specifically asked for a hearing in aggravation. The prosecution then pointed out the seriousness of the offense and asked for a sentence of 30 to 60 years. The trial judge then specifically asked for a hearing on mitigation. At that time defense counsel emphasized defendant’s youth and previously clean record, and asked for a merciful sentence. The judge, on his own inquiries, elicited information on defendant’s background, and then imposed the 20-to-40 year sentence. More could not reasonably have been required of the judge in this regard, and we consider the mitigation hearing to have been adequate.

(4) Finally, defendant says that the sentence imposed was excessive in view of the youthfulness of the defendant, and requests this court to reduce the sentence, under the authority of Supreme Court Rule 615 (b) (4). HI Rev Stats (1967), c 110A, § 615(b) (4). This power, however, should be applied with great caution, and we do not believe that the facts of this case present an appropriate occasion for its exercise. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE ENGLISH

text:
    Krystyna Rutkowska Nalepa, Plaintiff-Counterdefendant, Appellant, v. Anthony Nalepa, Defendant-Counterplaintiff, Appellee.
    Gen. No. 51,703.
    First District, Fourth Division.
    December 11, 1968.
    Rehearing denied February 4, 1969.

      Daniel D. Glasser, of Chicago, for appellant.
    Irving Goodman and Louis Z. Grant, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff appeals from a decree of divorce granted to her husband on his counterclaim in her suit for separate maintenance.

Plaintiff’s complaint sought separate maintenance on the ground of desertion. Defendant’s counterclaim prayed for annulment on the ground of fraud, or divorce on the ground of cruelty. The counterclaim was amended by adding what he claims were sufficient allegations of constructive desertion, and it was on that ground that the decree was awarded to defendant.

As to the property rights of the parties, the decree barred alimony and provided that, in lieu thereof, defendant pay to plaintiff $11,300 ($3,500 in 30 days and the balance at the rate of $30 per week). Arrangements had been made whereby the County Welfare Department would pay her rent of $98 per month. Defendant was also ordered to pay plaintiff’s attorney’s fee of $1,000. The money provisions of the decree are not contested in this court.

The parties were married in Poland in January 1961, and came to this country later that year. On July 26, 1962, plaintiff and defendant went to see a doctor about plaintiff’s difficulty in walking, and they were told that she was suffering from multiple sclerosis. They ceased living together as husband and wife from that date, although they continued to live under the same roof.

A large part of defendant’s brief in this court is devoted to the argument that plaintiff had refused to cohabit with defendant, and that this was an important factor to be considered in the matter of constructive desertion. Cases cited are Karman v. Karman, 24 Ill App2d 123, 164 NE2d 521, and Moyer v. Moyer, 17 Ill App2d 404, 150 NE2d 394, which are not in point here, because this record is absolutely devoid of any evidence that plaintiff had refused cohabitation. As testified to by defendant himself, they simply ceased living together as husband and wife on the day he learned from the doctor that she had multiple sclerosis. He testified further that he would not have married her (a year and a half earlier) if he had known she was afflicted with this disease; and his counterclaim for annulment was based on the allegation that she knew of her illness at that time and had defrauded him by keeping it a secret. Even if this were to be considered a valid ground for annulment—a point we do not pass upon—there was no evidence to support it, and the trial court struck from the counterclaim all allegations relating to annulment. No cross appeal having been filed, that question is not before us.

We face a similar situation in regard to defendant’s allegations of cruelty, which were also stricken for lack of supporting evidence. He testified to numerous acts of physical cruelty on plaintiff’s part (and she suffering from multiple sclerosis),but the chancellor obviously didn’t believe him. We share that incredulity, and when the cruelty charges, with their concomitant threats of more cruelty, are eliminated from consideration, we find it impossible to affirm the trial court’s conclusion as to the existence of constructive desertion. As we read the record, all that is left after elimination of the cruelty charges, is the kind of proof which this court held to be insufficient when it said in Nusser v. Nusser, 4 Ill App2d 538, 544, 124 NE2d 549:

As to the ground on which the decree was granted, it was early stated and has since been followed by many cases in this State that the “reasonable cause” which justifies a husband or wife to desert or abandon the other must be such as would entitle the person abandoning the other to a divorce. Fritz v. Fritz, 138 Ill 436; Scheuer v. Scheuer, 247 Ill App 463; Swan v. Swan, 331 Ill App 295.

See also Webber v. Webber, 349 Ill App 154, 159-160, 110 NE2d 95, and cases there cited.

The decree could not have been based upon any loving attempts on the part of defendant to preserve the marriage, or anything of the kind, because defendant himself testified that after he had learned of his wife’s illness in 1962, but before he had left the home in 1964, he had made what plaintiff argues was a devious attempt to get rid of her, an act which was completely incompatible with constructive desertion on her part. We refer to the fact that two or three months before their separation, he had gone to the immigration authorities to tell them that his wife was involved with the communists, and he had done this, he said, because he was a true American. The inference drawn from this episode in plaintiff’s brief is that defendant was seeking to have his wife deported to Poland, a not unreasonable assumption, especially since it went unchallenged in defendant’s brief.

In fact, defendant’s testimony seems to have been at odds with the probability of truth in another respect. He said that at the time plaintiff had told him to leave, she stated that a man named Povla was her lover, and that as soon as the divorce came through, they were getting married. This seems to have been pretty well negated by the fact that she was not seeking divorce at that time, and, as a matter of fact, has pursued this appeal to avoid it.

This brings us to what we believe must have been the reason behind the chancellor’s decree in favor of defendant. As a conscientious person, he apparently reached the good faith conclusion that these parties would be better off going their separate ways under a divorce decree than they would be living apart from each other under a decree of separate maintenance. And well they might. We believe, however, that this decision was not one to be made by the court on the record in this case, but only by the plaintiff.

The last of the evidence was heard on March 29. On April 7, the chancellor announced his decision and informed the parties of the contents of the decree. At the request of counsel for plaintiff that the court explain “the question of the divorce” to plaintiff, the court made the following statement (which was translated, into Polish for the benefit of plaintiff):

Inasmuch as she did not agree to a divorce decree, I have entered a divorce decree in favor of Mr. Nalepa, . . . this is procedure, no technical effect.

It is our conclusion—as it was apparently that of the trial court initially—that the evidence in this record abundantly supports plaintiff’s complaint. It is also our conclusion that, on the basic issues of the case, the record does not support the decree which was entered. The decree is therefore reversed, and the cause is remanded with directions to enter a decree of separate maintenance in favor of plaintiff.

Plaintiff has also asked this court to reverse that part of the decree which found that defendant was not to be held responsible for the support of plaintiff’s child of a former marriage in Poland. We believe that plaintiff’s proof was insufficient in this regard, so that part of the decree is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

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

       Plaintiff testified that this was the first she knew of any such diagnosis. Defendant also testified that it was the first he knew of it.


text:
    Juanita Trammell, Plaintiff-Appellant, v. Roosevelt Trammell, Defendant-Appellee.
    Gen. No. 52,920.
    First District, Fourth Division.
    December 11, 1968.

      Jean F. Williams, of Chicago, for appellant.
    No brief filed for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff appeals from a decree in favor of defendant in a divorce action. The complaint alleged acts of extreme and repeated cruelty which were denied in defendant’s answer.

At the trial, plaintiff was the first witness. She testified that on February 18, 1967, defendant struck and choked her, leaving bruises, and on April 5, 1967, defendant, without cause, beat her and knocked her into the bedroom and choked her, causing pain and suffering. There was no cross-examination by defendant’s counsel. The trial judge, however, questioned plaintiff regarding physical abuse by defendant prior to the date of their marriage in 1966. The plaintiff, in answer to the judge’s examination, testified that defendant first physically mistreated her in 1958, six months after the birth of a child to plaintiff and defendant; and that defendant had also beaten her in 1964 and 1965. The record then shows the following:

THE COURT: “Yet, in 1966, after all of these beatings you still married him?”
THE WITNESS: “Yes, I did.”
THE COURT: “Now, you have complained that he beat you on February 18th and April 5th?”
THE WITNESS: “Yes.”
THE COURT: “In 1967 ?”
THE WITNESS: “Yes.”
THE COURT: “Finding for the defendant.”
MISS WILLIAMS (Attorney for plaintiff): “May it please the Court, may I say this before you make a finding? Give me a basis for this finding, because—”
THE COURT: “I don’t need a basis.”
MISS WILLIAMS: “May I say this ?”
THE COURT: “This woman comes in Court and asks for a divorce. If you are afraid of him, then, why did you marry him ?”
MISS WILLIAMS: “May we proceed on the
grounds of—we have another ground of adultery.” THE COURT: “Counsel, you rested. You proceeded on physical cruelty. This woman is not entitled to relief from this Court. I will stand on that record.”
MISS WILLIAMS: “I have a letter from her psychiatrist saying that this woman is in need of medical attention because of the abuses she received in the house. May we have leave to amend ?”
THE COURT: “No leave to amend or nothing. This woman will not get relief in this Court. Go and appoint a guardian for her.”

A few days later, at a hearing on plaintiff’s motion to vacate, this colloquy took place:

THE COURT: “All the relief you are seeking, you can get by methods available to you. If he is going to molest anybody, he can be arrested and be put in jail. . . . She wants this Court to be a Police Court. If he isn’t supporting the child, you should go and file a complaint, and there is a procedure, whereby she is entitled to it in the regular Court.”
MISS WILLIAMS: “I am aware of that. May I answer this? When Your Honor says she wants this Court to act as a Police Court, it is not so. She wanted a divorce; she did not want her husband to be given a license to beat her.”
THE COURT: “She didn’t have the grounds for a divorce. Nobody has license to beat anybody.”
MISS WILLIAMS: “He has.”
THE COURT: “I would have him arrested every time he raised a finger at me.”
MISS WILLIAMS: “What I am trying to do is prevent a murder out there, that is what will happen.” THE COURT: “All she has to do is have him arrested and go to Court and testify. They will put him in jail. It happens everyday.”

There were other plaintiff’s witnesses ready to testify to the alleged acts of cruelty, and it should go without saying that acts of cruelty prior to the marriage could not estop plaintiff from seeking a divorce for acts of cruelty occurring after the marriage. Nor is the court’s suggestion of police court proceedings a reasonable alternative for divorce, if at trial it develops that grounds for divorce exist and that is the relief requested.

In this court no brief was filed by defendant, and his counsel has been allowed to withdraw. In consenting thereto, defendant advised us “that the Appellate Court can take its natural course.”

We need not elaborate on the clearly erroneous character of the peremptory action taken by the trial judge. See this court’s opinion in Jamal v. Jamal, 98 Ill App2d 180, 182-185, 240 NE2d 246, in which we held that this sort of a “hearing” was so unconscionable as to be violative of due process.

The decree is reversed and the cause is remanded for a trial of the issues presented by the complaint and answer.

Reversed and remanded.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Jeffries, Defendant-Appellant.
    Gen. No. 53,044.
    First District, Fourth Division.
    December 11,1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.

       See Callaghan's Illinois Digest, same topic and section number.

   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This appeal is from a judgment after a bench trial in which defendant was found guilty of committing an aggravated battery on one Joe Walker. He received a sentexice of two to three years in the penitentiary. The sole contention on appeal is that defendant was not proven guilty beyond a reasonable doubt.

Testimony of Joe Walker, complaining witness

He was playing pool when he heard an argument in the front part of the tavern at which point he approached the two arguing parties, William Harris and the defendant. As he approached them he saw that the defendant was holding a gun in his hand out of Harris’ sight. He then grabbed Harris and pulled him away, and as he turned back around, defendant shot him in the head. His left arm and left leg are now paralyzed..

He admitted that he had been drinking while playing pool—about three half-pints of Seven Crown mixed with water. He did not have any conversation with defendant nor say anything to him. He did not see a woman in the tavern by the name of Bettie Simmons; she was in the bathroom when the shooting occurred, and was not there while the argument between Harris and defendant was going on..

Testimony of William Harris, for the State

Defendant solicited him for a drink and he refused, claiming lack of money. An altercation started when defendant called him a liar. Walker, the complaining witness, then came up to the bar and, after a few words had been exchanged, told the defendant not to call Harris a liar. Defendant then challenged Walker to go outside and settle it, and Walker accepted the challenge. Then defendant “got up and turned around shot Joe (Walker).” He never saw a gun in defendant’s hand while they were arguing; the first time he saw it was when defendant pulled it out to fire.

Testimony of Bettie Simmons, for defendant

Defendant offered to buy her a drink and then refused to buy one for Harris when Harris asked for one. A friendly argument ensued until Walker came over from the pool table and took Harris’ side of the argument. Walker put on his right hand glove and challenged defendant to a fight. Defendant tried to avoid the fight, calling on both Harris and her to try to stop Walker. Walker pushed Harris and Simmons out of the way, at which time she ran for the bathroom and heard a shot. She did not see defendant with a gun in his hand.

Testimony of Robert Jeffries, the defendant

He entered the tavern in the afternoon and bought a drink for Bettie Simmons. Harris approached them and asked for a drink. Defendant refused to buy one claiming that he did not have any money, and a friendly argument took place. Walker approached the group and threatened defendant.

“After that I begged him to leave me alone, not to jump on me. He kept on. I thought it was all over with. He walked away. I thought he left me alone. At the time he walked away I started to go out the door. When I looked back he was pushing Bettie and William out of the way and went into his pocket. That is when I shot him.
“I didn’t know what he had in his pocket. I was afraid of him. I know his reputation. I was afraid. He has had trouble in the past around the tavern before. I fired one shot. I was afraid suffering great bodily harm and in fear of losing my life at the time I fired.
“After it went off, I went outside. I went to my sister’s house. I throwed the gun in the sewer. I throwed the gun away.”

Defendant did not know what Walker had in his pocket; he had never seen Walker carry a gun but people had told him that Walker carried a gun.

Opinion

Defendant was charged with aggravated battery which is defined in the Criminal Code, Ill Rev Stats 1967, c 38, § 12-4:

(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery ....
(b) A person who, in committing a battery . . . uses a deadly weapon . . . commits aggravated battery ....

Battery is defined in the Criminal Code, Ill Rev Stats 1967, c 38, § 12-3:

(a) A person commits battery if he intentionally or knowingly without legal justification and by any means (1) causes bodily harm to an individual ....

The Criminal Code, Ill Rev Stats 1967, c 38, § 7—1, provides:

A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . .

In order to establish that his shooting of Walker was justified, defendant testified that he was afraid of Walker because of his reputation and that when Walker pushed Bettie Simmons and William Harris out of the way and went into his pocket, defendant shot him. However, he also testified that he had disengaged himself from Walker and was starting out of the door before he turned around and shot Walker. Besides, the People’s evidence showed that Walker was shot as he turned away from defendant; no one saw a gun in Walker’s possession that day. We have repeatedly held that where a cause is tried without a jury the law commits to the trial judge the determination of the credibility of the witnesses and the weight to be given to their testimony, and where the evidence is merely conflicting this court will not substitute its judgment for that of the trial court. (People v. Sally, 17 Ill2d 578, 162 NE2d 396; People v. Golson, 392 Ill 252, 64 NE2d 462.)

The evidence is sufficient to sustain the finding that defendant was guilty of aggravated battery and the judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       This cause was initially appealed directly to the Supreme Court on the grounds that the proof was inconsistent with the indictment. The indictment stated that the defendant had injured one Joe Walker, Jr., whereas the proof established that the injured party was one Joe Walker. The Supreme Court held that there was no substantial constitutional question presented and transferred the cause to this court. During oral argument the point concerning inconsistency of indictment and proof was waived and thus will not he treated herein.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Elvis Davis, Defendant-Appellant.
    Gen. No. 10,963.
    Fourth District.
    December 12, 1968.

      Glenn O. Fuller, Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Thomas J. Yockey, of counsel), for appellee.
   TRAPP, P. J.

Defendant appeals from his conviction entered upon a plea of guilty to an information charging theft of property exceeding $150 in value. His petition for probation was denied, and sentence was fixed at an indeterminate term of not less than one year nor more than ten years.

Defendant states his theory to be that the court had no jurisdiction to accept a plea of guilty because the court failed to inform the defendant of the penalty which might be imposed, and failed to ascertain whether defendant understood the nature of the charge in such information, “. . . prior to the time the defendant executed his waiver.” As stated, the contention is incomplete and it is difficult to focus upon its meaning for purposes of review. Since the authorities briefed refer only to waiver of indictment, presumably such is the waiver referred to. It appears to be further argued that there was error in accepting the plea of guilty because the court did not inquire whether defendant understood the nature of the charge.

Defendant was 28 years of age, had completed three and one-half years of high school, and had served a three-year enlistment in the Navy. The public defender had been appointed to represent him prior to arraignment, and was present at such time. There is no contention that defendant was under any mental disability, and none is suggested in the record.

The information charged that defendant committed the offense of theft of property exceeding $150 in value from a given address on a stated date, such property being a 1964 Chevrolet Sport Coupe with a specified serial number.

The record made at the arraignment discloses that defendant had been furnished with a copy of the information, a list of prosecution witnesses and a copy of a purported confession prior to appearing before the court.

Upon the contention of error in accepting the waiver of indictment, the record discloses that the trial court advised defendant that the offense charged was a felony and an infamous crime subject to a penitentiary sentence. He then gave an explicit statement to defendant concerning the absolute right to require that he be prosecuted upon an indictment by the grand jury. Since prosecution by information following waiver of indictment does not, as the trial court so stated to defendant, alter or supersede the right to trial by jury, the admonition of the maximum and minimum sentence that could be imposed is not a necessary element of the admonition concerning waiver of indictment. The proceedings at issue were governed under the former Supreme Court Rule 26(8), chapter 110, § 101.26, S-H Ann Stats 1956, (now Supreme Court Rule 401, chapter 110A, § 401, S-H Ann Stats). The language of both the Rule and the “Practice Notes” of the first cited make clear that the admonition required upon waiver of indictment differs from that required before accepting a plea of guilty. Each admonition serves a different function.

The defendant and his counsel were advised through the information that there was a charge of theft of an automobile of a value greater than $150. To state such a charge in greater detail, or more complex language, would not make it more understandable.

The trial court’s admonition does not have the function of a bill of particulars. The Rule does not require the trial court to explain what acts the defendant did in committing the offense. People v. Harden, 78 Ill App2d 431, 222 NE2d 693. While admonition of the nature of the charge has relevance in the exercise of choice in pleading guilty, such choice is not faced at the time of waiving indictment.

Examining the issue of defendant’s understanding of the nature of the charge prior to making and persisting in a plea of guilty, we find the record is clear that prior to accepting such plea the court described the consequences of the plea in terms of a minimum and maximum sentence in the penitentiary. The record also shows that the defendant had discussed with his counsel the offense charged, and that before the court accepted the plea and entered judgment of conviction, defendant expressly acknowledged that he was pleading guilty to the theft of an automobile of the value of $2,500.

Defendant cites People v. Culbert, 69 Ill App2d 162, 215 NE2d 470. The facts of that case are clearly distinguished from the facts here. There defendant appeared at arraignment without counsel, and the record demonstrates that he failed to comprehend the significance of waiving indictment, in that he failed to make an intelligent and intelligible answer to the court’s inquiry.

From the record before us, it is fairly said that defendant understood both the significance of waiving indictment and the consequences of his plea of guilty. People v. Doyle, 20 Ill2d 163, 169 NE2d 250.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Bank of Broadway, an Illinois Banking Corporation, Plaintiff-Appellant, v. Noel Goldblatt, Defendant-Appellee.
    Gen. No. 52,510.
    First District, Third Division.
    December 12, 1968.

      Leo Waxman and Edward G. Green, of Chicago, for appellant.
    Roy J. Golson, of Chicago (Harry Zaidenberg and Harry G. Fins, of counsel), for appellee, First National Bank of Lincolnwood.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Appellant Bank of Broadway (Broadway) obtained a judgment by confession against Noel Goldblatt on May 4, 1967, for $5,309.39. Broadway thereafter caused citations to discover assets to be issued against Goldblatt, the Cosmopolitan National Bank of Chicago (Cosmopolitan) and the First National Bank of Lincolnwood (Lincolnwood). The citation against Cosmopolitan was dismissed on June 9, 1967, and no appeal is taken from that order. As to Lincolnwood, it appears that Goldblatt owned the beneficial interest in a land trust known as Trust No. 16156, in which Cosmopolitan was trustee. On October 21, 1966, Goldblatt assigned his interest to Lincolnwood and that assignment was accepted by Cosmopolitan on October 25, 1966. Broadway now seeks to invalidate the assignment to Lincolnwood on the ground that Lincolnwood had not filed a financing statement, as required by the Uniform Commercial Code, and hence those assets may be subject to payment of Goldblatt’s indebtedness to it (Broadway). Ill Rev Stats, c 26, § 9-302 (1967). The trial court held against Broadway and dismissed the citations against both Goldblatt and Lincolnwood on June 29,1967.

On appeal Broadway contends that Goldblatt’s assignment to Lincolnwood of his interest in the land trust was only as additional security for a preexisting loan; that to perfect such a security interest a Uniform Commercial Code financing statement must be filed with the Secretary of State in Springfield and that since no such statement was filed by Lincolnwood, Broadway by virtue of its citation to discover assets has a superior right to Goldblatt’s beneficial interest in the land trust.

Goldblatt testified at the citation proceedings that the corpus of the land trust is a nine-room house and lot and that he assigned his beneficial interest in the trust to Lincolnwood on October 21, 1966. He testified that the assignment was made to give Lincolnwood additional security on a prior loan, that Lincolnwood collected no rent after the assignment, and that he continued to make mortgage payments after the assignment. Since the date of the assignment Marian Rióla, one of Goldblatt’s employees, has been living in the house but paying no rent. It was said to be “part of the salary.”

Saul Binder, representing Lincolnwood which had been directed to produce certain records at the citation proceeding, testified that he did not have any of the records concerning Goldblatt’s assignment to Lincolnwood and did not know whether a financing statement had been filed. The court continued the case and ordered Lincolnwood to return the following week with all the records relating to any interest Goldblatt might have in Trust No. 16156. The following week Roy J. Golson, an attorney representing Lincolnwood, was examined as an adverse witness by counsel for Broadway. Following is his testimony:

WAXMAN: “You are responding to the citation on behalf of the First National Bank?” (Lincolnwood) .
GOLSON: “Only to present to you the information that was given to me.”
Q. “Counsel, does the bank have a Uniform Code statement?”
A. “I do not know.”
Q. “Counsel, do you have the records [file] of the bank here ?”
A. “I have the records which I presented at this—before this point.”
Q. “Do these records contain a Uniform Code statement?”
A. “I didn’t present one. I don’t have any in my file.”

Broadway first contends that the assignment to Lincolnwood of the beneficial interest in the land trust was as additional security for a prior existing debt and not as a sale. Goldblatt’s uncontradicted testimony was that he made the assignment as additional security on a debt. The fact that his employee continued to live in the house and that he (Goldblatt) continued to make the mortgage payments tends to support Broadway’s contention that the assignment was not an outright sale.

Broadway next contends that Lincolnwood failed to perfect its security interest in the beneficial interest in the land trust, as required by the Uniform Commercial Code, and as a result, the attachment and lien created by the citation to discover assets stands ahead of the Lincoln-wood interest. Lincolnwood contends that the Uniform Commercial Code does not require that a financing statement be filed to perfect a security interest in the assignment of the beneficial interest in a land trust and that Broadway is not a “lien creditor” under the Code. It also contends that Broadway did not prove that Lincolnwood failed to file a financing statement.

In Levine v. Pascal, 94 Ill App2d 43, 236 NE2d 425, it was held that a creditor who proceeds by a citation to discover assets is a lien creditor as defined in section 9-301(3) of the Uniform Commercial Code and that such creditor has a superior right to the beneficial interest in a land trust over a creditor who was assigned a beneficial interest in the trust as security for a loan but who failed to file a financing statement covering that interest. The court held that the beneficial interest in a land trust is not an instrument, as Lincolnwood contends, but rather that it is a “General Intangible,” as defined in section 9-106 of the Code. A “General Intangible” is a special type of personal property and to perfect a security interest in it, one must file a financing statement with the Secretary of State. (Ill Rev Stats, c 26, § 9-302, 1967.)

Levine v. Pascal, supra, differs in one important aspect from the case at bar. In Levine the parties stipulated to the fact that no financing statement had ever been filed, but in the instant case that fact is at issue. The only evidence adduced with respect thereto was the testimony of Golson, the attorney for Lincolnwood. From a reading of the abstract of record it would appear that Golson did not know whether a financing statement had been filed or not. However a reading of his answer that he did not have such a statement in his file, taken in the context of the entire record, yields a different conclusion. A week earlier in the same citation proceedings another representative of Lincolnwood was unable to answer Broadway’s question regarding the filing of a financing statement for the assignment of Goldblatt’s interest in Trust No. 16156 and the court ordered Lincolnwood to return the following week with everything it might have with reference to Trust No. 16156. Golson testified as the representative of Lincolnwood the following week when he stated that his file did not contain a financing statement. It would appear from this that no financing statement was ever filed or that Lincolnwood had not complied with the order of court to produce its records of such statement. Under those circumstances the course of the trial court was clear. It should have directed Lincolnwood to reveal precisely what was the true answer to the inquiry as to whether it had filed a financing statement pursuant to the Uniform Commercial Code. If no statement was filed, judgment should have been entered against it.

The judgment accordingly is reversed and the cause is remanded for the purpose of determining from Lincoln-wood whether it had filed a financing statement, as required by the Uniform Commercial Code, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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