text:
    Louise Thomas, Plaintiff-Appellant, v. Chicago Transit Authority, a Municipal Corporation, and Otis Parks, Defendants-Appellees.
    Gen. No. 53,446.
    First District, Third Division.
    October 16, 1969.
    Rehearing denied November 13,1969.

      Reidy, Gross & Dee, and Jurco, Damisch & Sinson, of Chicago (Richard H. Lucy and James R. Mitchell, of counsel), for appellant.
    George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Norman J. Barry, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Louise Thomas, brought an action for personal injury against the Chicago Transit Authority and Otis Parks, one of its drivers. A jury found for the defendants and the plaintiff appeals. She claims that she was prejudiced during the trial by an experiment which was performed by the defendants over her objection.

The plaintiff’s injuries occurred on the evening of December 23, 1965, when she fell or was thrown beneath the wheels of a bus driven by Parks. She had been window-shopping in the area of 63rd Street and Cottage Grove Avenue, and between 5:00 and 6:00 p. m., boarded a westbound 63rd Street bus to go home. She testified that all the seats were filled and people were standing shoulder to shoulder in the aisle. She made her way to the back of the bus and stood beside the rear door. When the bus stopped to take on or discharge passengers, she got out of the way of the departing passengers by stepping out the door; she would then reboard the bus and continue to stand by the door. This occurred two or three times without incident. At the comer of 63rd and State Streets, she again left the bus to permit other passengers to leave. This time, however, as she attempted to re-enter the bus, it started to move, causing her to lose her balance and fall beneath its wheels. She claimed that her right foot was on the step when the door closed and the bus pulled away.

Parks, the driver, testified that he started to drive this particular bus around 5:00 p. m. He checked the mirrors but they needed no adjustment and the doors operated without trouble. He was running behind schedule as he headed west on 63rd Street. By the time he arrived at Cottage Grove Avenue, all the seats were filled and people were standing in the aisle. The crowd increased at this and subsequent stops and most of the standing room was taken.

At 63rd Street and State Street, Parks stopped the bus, opened the doors and admitted and discharged passengers. He did not watch passengers get off because he was busy taking the fares of those who got on. He then closed the doors of the crowded bus and waited for the traffic light to change to green. He testified that he checked to see if the rear door was open and looked in the right outside rearview mirror to see if anyone was “on the door.” As the bus moved forward on the green signal, the shouts of people on the street caused him to stop the bus before it passed the crosswalk. He stepped outside and saw the plaintiff pinned beneath the rear wheels.

The rear door of the bus had two panels. To open it, according to Parks, the driver would first release a lock and a passenger would have to push out on it. When the passenger let go his pressure, the door would close and the driver would relock it. Parks testified that the bus had an automatic device which prevented it from being driven if the switch which locked the rear door was open; even if the switch was closed and the rear door open, the accelerator would lock and the bus would not move.

With the court’s permission and over the plaintiff’s objections, the defendants’ attorney conducted a demonstration using the actual bus involved in the injury to the plaintiff. He told the jury that the purpose of the demonstration, which took place on a street outside the Chicago Civic Center, was to acquaint them with its physical characteristics. Parks sat in the driver’s seat, and the trial judge and the jury sat in the passengers’ seats. Parks started the motor, then by means of a lever locked and unlocked the front and rear doors. The jury left the bus by pushing the rear door open; then they reboarded at the front door and took their seats.

During the demonstration, the plaintiff’s attorney placed his hand in the rear door. The judge remarked that that was the part he wanted to see — whether the bus would move if the rear door was open. The defendants’ attorney said that with the court’s permission he would show how the interlocking device worked. He reminded the jury of the plaintiff’s testimony that she had a foot within the door and the bus started, and of the defendants’ contention that it was impossible to start the bus under that condition. He placed his foot on the step, preventing the door from fully closing. The driver then stepped on the accelerator and the bus did not move. The experiment was repeated a second time with the plaintiff’s counsel plácing his foot on the step from outside the bus and the result was the same. The trial judge and the jury then returned, to the courtroom and the trial continued.

No foundation was laid for the experiment and the plaintiff’s objections should have been sustained. An experiment is incompetent without a showing that the essential conditions are the same as those existing at the time of the accident. Mack v. Davis, 76 Ill App2d 88, 221 NE2d 121 (1966); Hammer v. Slive, 35 Ill App2d 447, 183 NE2d 49 (1962); see also Handley v. Erb, 314 Ill App 207, 41 NE2d 222 (1941).

There was no showing that the bus was substantially in the same.condition as it was at the time of the injury. Two and one-half years had elapsed and the bus had continued to be used. There was bound to be some, wear and tear which might have affected the operation of the vehicle and there might have been replacement or repair of parts. Furthermore, the circumstances of the accident and the experiment were dissimilar. The injury occurred at the end of a shopping day, two days before Christmas when the bus was jammed with people.. The.driver had been on duty since 1:00 p. m. and was running behind schedule. These conditions were conducive to hurrying, carelessness and mistakes. On the other hand, the experiment was conducted with a bus which was not in service and which was empty except for the jury, the trial judge and the two attorneys. The driver, who was a defendant and an interested party, operated , the bus solely for the purpose of the experiment. These conditions were conducive to carefulness.

The defendants maintain, that the trial court did not abuse his discretion in permitting the experiment. They note that before it was conducted the plaintiff’s attorney placed his hand in the door and they contend that the subsequent demonstration became necessary because of this. The record does not support the contention that the act of the attorney compelled the demonstration. The act of the attorney followed the demonstration of how the doors functioned but preceded the demonstration about the interlocking device. Although the defendants objected to the attorney’s action, they did not suggest that this action made the subsequent experiment advisable or necessary. On the contrary, their counsel said that he would proceed to demonstrate the device because the plaintiff testified that her foot was in the door and the defendants contended that if this were so the bus could not start.

The defendants also note that before the experiment was performed, Parks testified as to the mechanical operation of the bus; that he explained the functioning of the switch which had to be in a closed position before the bus would move, and of the accelerator which would lock if the rear door was open even if the switch was in a closed position. They further note that Parks testified that the switch was in proper mechanical condition and performed its function at the time the plaintiff was injured. According to the defendants, the experiment was merely cumulative of Parks’ testimony of the design of the bus and the manner of its operation. They claim that the experiment was not intended and did not furnish evidence as to whether the mechanism was operating properly at the time of the accident; as to this, they assert that the jury had to rely on the veracity of Parks’ testimony.

The experiment did, however, corroborate Parks’ testimony as to how the mechanism functioned at the time of the accident. Until the experiment was conducted the jury had to choose between the testimony of the plaintiff and Parks — the only two eyewitnesses who testified. The experiment showed the jury not only how an interlocking system worked but how the interlocking system on the bus involved in the accident worked. The defendants told the jury that the bus was the one involved in the accident but did not tell them that the bus might not be in the same condition due to use, repair or replacement of parts. They left the impression that the condition of the bus was unchanged and that the automatic interlocking system performed at the time of the injury in the same manner as it did during the experiment.

The error in permitting the demonstration was prejudicial to the plaintiff. The jury no longer had to weigh her testimony against that of the driver but could rely solely on the result of the test. The point of the experiment was not lost on the jury. Just before it, the defendants’ attorney reminded the jury of the conflicting contentions about the ability of the bus to move if the door was partially open. After the experiment, in closing argument, the attorney referred to its lesson, “The evidence, on the bus itself, shows that if you got your foot upon the step, that the bus wouldn’t go. . . .”

The defendants disparage the plaintiff’s case and assert that even without the experiment the result would likely have been the same. They argue that her testimony about alighting from and reboarding the bus was improbable ; that her testimony about the bus moving while she had her foot in the door was impossible, and that her testimony was inconsistent and unbelievable. The defendants conclude that the jury had ample grounds to believe that her testimony was contrived, that she had no intention of re-entering the bus after getting off at State Street, that she did not try to re-enter, and that she was injured as a result of some misadventure of her own such as tripping or falling as the bus was leaving the State Street stop.

The plaintiff’s testimony about standing to the side of the door and stepping off to permit other passengers to depart was not inherently improbable; the bus was crowded and she might have thought that her actions were necessary even if they were not. Her testimony about having a foot in the door was not impossible despite the driver’s testimony about the design of the bus; he may have been wrong about the design or the safety feature might have malfunctioned. The contradictions in her testimony were minor. In sum, the plaintiff’s evidence was not so weak as to be beyond belief; it could have supported a verdict in her favor.

The error in conducting the experiment without a proper preliminary foundation deprived the plaintiff of a fair trial. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded with directions.

SCHWARTZ and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    Sara Wolf, Plaintiff-Appellant, v. Lake Shore Savings and Loan Association, a Corporation, Defendant-Appellee.
    Gen. No. 53,357.
    First District, Third Division.
    September 25, 1969.

      Maurice J. Nathanson, of Chicago (Paul Peter Black, of counsel), for appellant.
    Alex Janoski, of Chicago (Mitchell Kilanowski, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal from an order dismissing the plaintiff’s complaint.

The complaint contained the following allegations: The plaintiff entered into a contract with the defendant to purchase certain real estate. The contract provided that the buyer would take subject to general taxes due and payable after the year 1967, but that all unpaid taxes were to be prorated to the date of the closing of the transaction. The transaction was closed on February 28, 1967 and, because the amount due for the unpaid taxes for the year 1966 was not yet known or available, the taxes were prorated temporarily on the basis of the 1965 tax bill; this was in accordance with a common practice followed in most real estate transactions. When the 1966 tax bill became ascertainable, it was for an amount that was in excess of the sum credited to the plaintiff at the time the transaction was closed. The 1966 tax, and the tax from January 1, 1967, to the closing date computed on the basis of the 1966 tax bill, was $2,004.77 more than the sum credited to the plaintiff.

The defendant advanced several grounds in support of its motion to strike and dismiss, but only two were of substance and neither of these justified dismissing the complaint. One of these was the averment that at the time the deal was closed a statement prorating all taxes was accepted by the plaintiff. The closing statement was attached to the motion. The statement, however, did not support the defendant anymore than it did the plaintiff. The cryptic notation in the statement:

“Factor .1667 —1965
“General Taxes as pro-rated on $2,895.36 — 14 months . ..
$3,378.02”

did nothing more than confirm the undisputed fact that the taxes for fourteen months (twelve months of 1966 and the first two months of 1967) were prorated on the basis of the 1965 tax bill. The notation did not indicate whether the proration was a temporary one as charged by the plaintiff or a final one as averred by the defendant. The unsigned closing statement of itself confers no contractual rights and it does not supersede the provisions of the previous contract or the subsequent deed. It may have evidentiary value to show the intention of the parties as to the terms of the contract but it was not dispositive of the issue between them. Likewise, a provision in the contract that “All pro-rating shall be as of the date of closing a deal and time is of the essence of this contract,” has probative value and adds credence to the defendant’s contention that the proration in the closing statement was a final one. Standing alone, however, or read in conjunction with the statement, it does not establish this as a matter of law.

The other ground for dismissal which appeared to have substance was the averment that a deed was delivered to the plaintiff which provided that the premises were conveyed subject to taxes for the years 1966 and 1967. The averment was accompanied with the argument that all agreements between a seller and a purchaser in a real estate transaction are merged in a deed unless the contract provides for subsequent acts by either party. The legal argument was correct (McKnight v. Mowat, 139 Ill App 390 (1908); Laflin v. Howe, 112 Ill 253 (1885)) but its application to the complaint was premature. The complaint alleged that a subsequent act was to be performed by the parties, that of prorating. The plaintiff asserted, without denial by the defendant, that it was agreed that this was to be done on the basis of the 1966 tax bill, and she alleged this was a common practice followed in most real estate transactions. These allegations were relevant to the issue of whether the contract merged into the deed and the plaintiff should be given the opportunity to prove them.

Furthermore, it was impossible to accurately ascertain what contractual provisions were superseded by the deed because the deed was not produced as an exhibit. The trial court could not compare the documents and, since the deed is not in the record, neither can we. The defendant’s assertion that the deed provided that the premises were conveyed subject to the 1966 and 1967 taxes cannot be accepted as a substitute for the deed itself.

The plaintiff’s complaint stated a cause of action. It should not have been either stricken or dismissed upon the grounds urged by the defendant.

The order of the Circuit Court is reversed and the cause is remanded with directions to overrule the defendant’s motion and to set a time within which it may answer the complaint.

Reversed and remanded with directions.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    American National Bank and Trust Company as Trustee Under Trust Number 16689, Plaintiff-Appellee, v. George Lembessis, Defendant-Appellant.
    Gen. Nos. 53,385, 53,517. (Consolidated.)
    First District, Third Division.
    September 25, 1969.

      Albert H. Beaver, Sodaro, Wisner & Beaver, of Chicago, for appellant.
    Carl J. Greenberg, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The American National Bank, as trustee, brought an action of forcible detainer against George Lembessis to recover possession of, and rent or damages for, the latter’s alleged wrongful occupation of leased premises. After the defendant filed an appearance and jury demand but no responsive pleading to the complaint, the plaintiff filed a motion for summary judgment supported by an affidavit and exhibits. The defendant moved to strike the plaintiff’s motion and filed counteraffidavits. The plaintiff answered the defendant’s motion. The trial court denied the defendant’s motion to strike and entered judgment in the plaintiff’s favor. The defendant contends that his counteraffidavits raised genuine triable issues of fact which precluded the entry of summary judgment.

The premises, located at 2423 West Lawrence Avenue in Chicago, were leased by the National Boulevard Bank, as trustee, to Peter Bleizeffer for a term beginning April 20, 1965, and ending April 30, 1968. The lease provided that the premises were to be operated as a “tavern and for no other purpose whatever.” In December 1966, the defendant applied to the lessor’s rental agent for approval of a contemplated assignment of the lease for the remainder of its term. He proposed to operate a tavern and restaurant business. The agent approved the assignment. Bleizeffer assigned his lease to the defendant with the consent of the National Boulevard Bank on December 16, 1966. On the same date, the bank and the defendant executed a written agreement for an extension of the assigned lease. The agreement provided as follows:

“. . . if all terms, covenants, etc. are complied with as provided in [the] lease assigned to George P. Lembessis by Peter Bleizeffer covering the store located at 2423 W. Lawrence Ave. the Lessor agrees to give a lease with the same terms and conditions provided for in [the] assigned lease for a term of five years commencing from May 1st, 1968.”

The defendant purchased the fixtures from Bleizeffer and at considerable expense remodeled and redecorated the premises. In March 1967, he opened his tavern and restaurant and operated the business in the name of the 2423 West Lawrence Corporation, an Illinois corporation, of which he was the sole shareholder. Licenses for the dispensation of food and alcoholic beverages and all insurance policies were issued in the corporation name, allegedly with the knowledge and consent of the lessor and its real estate agent.

On February 16, 1968, eleven months after the defendant started in business, the American National Bank, as trustee, bought the building. On March 1,1968, the plaintiff-bank wrote the defendant advising him that his operation of a restaurant and his failure to furnish a certificate of plate glass insurance violated the terms of the lease.

Around the first of April the defendant’s attorney by letter requested the plaintiff’s real estate agent (not the one who represented the National Boulevard Bank) to prepare a new lease for a term subsequent to April 30, 1968, with the 2423 West Lawrence Corp. as lessee. The plaintiff did not execute the new lease. It accepted the defendant’s monthly rental payments of $175 each for March and April of 1968 — the last months under the original lease — but refused to accept the ones tendered for May and June, the first months under the extended lease. The plaintiff informed the defendant that the extension agreement would not be honored unless the defendant increased the monthly payment from $175 to $350. The defendant rejected the demand for higher rent and continued in possession. The plaintiff's action for forcible detainer followed.

The right to summary judgment is established by statute (Ill Rev Stats 1967, c 110, § 57) and the primary function of the procedure is to enable a court to determine whether there is any issue of fact to be tried by a jury. Craig v. Launer, 346 Ill App 234, 104 NE2d 830 (1952). If the pleadings, affidavits and exhibits show that there is a genuine issue as to any material fact, summary judgment must not be granted. Reed v. Albanese, 78 Ill App2d 53, 223 NE2d 419 (1966). Affidavits in support of a motion for summary judgment should be strictly construed and must leave no question as to the movant’s right to judgment, whereas the opposing party’s counteraffidavits should receive a liberal construction. Des Plaines Motor Sales, Inc. v. Whetzal, 58 Ill App2d 143, 206 NE2d 806 (1965).

When the parties’ affidavits are considered in this light it is apparent that they raised three issues: whether the defendant’s operation of a tavern and restaurant violated the terms of the lease; whether he violated its terms in reference to plate glass insurance, and whether he forfeited his right to an extension of the lease by exercising the option in the name of a corporation rather than in his individual name.

The first issue involves an interpretation of that part of the lease which permitted the use of the premises “for a tavern and for no other purpose whatever.” In construing a lease the primary objective is to ascertain the intent of the parties. O’Fallon Development Co. v. Reinbold, 69 Ill App2d 169, 216 NE2d 9 (1966). The intention of the parties must be ascertained if possible from the language in the lease, and the words used should be given their common and generally accepted meaning. Book Production Industries, Inc. v. Blue Star Auto Stores, Inc., 33 Ill App2d 22, 178 NE2d 881 (1961). Where the language of a lease is ambiguous, the court may consider the position of the parties, the surrounding circumstances which existed at the time of the execution of the lease and the facts in connection with it. South Parkway Bldg. Corp. v. Theatre Amusement Co., 328 Ill App 447, 66 NE2d 437 (1946); Linn v. Clark, 295 Ill 22, 128 NE 824 (1920). Moreover, where there is any doubt or uncertainty as to the meaning of the language used in a lease it should be construed most strongly against the lessor and in favor of the lessee. Associated Cotton Shops v. Evergreen Park Shopping Plaza, 27 Ill App2d 467, 170 NE2d 35 (1960).

The word “tavern” has different meanings. Samuel Johnson defined it as “a house where wine is sold, and drinkers entertained.” Wébster defines it as “a house where liquors are sold to be drunk on the premises,” as “a house where transient guests are accommodated with rooms and meals,” and as a word often used synonymously with an inn or hotel. Webster, New International Dictionary (1927); Webster, Third New International Dictionary (1967). See also Babb v. Lewis, 244 Ore 537, 419 P2d 423 (1966); Hirn v. State, 1 Ohio St 15 (1852). American Jurisprudence 2d, Vol 40, § 12, Hotels, Motels, and Restaurants, states that the word “has been given various meanings by the courts as well as by custom and usage, and in itself is of little significance in determining the nature of an establishment. A tavern might lie within the definition of an inn or hotel, a restaurant, or a saloon.” In Illinois the commonly accepted meaning of the word is a place where alcoholic beverages are sold for consumption on the premises. This meaning became prevalent after the repeal of the 18th Amendment — when “tavern” was one of the words that came into favor as substitutes for the “saloon” of the preprohibition era (bar, tap, pub, inn, lounge, club, tavern, etc.). Smith v. Ballas, 335 Ill App 418, 82 NE2d 181 (1948) and Szcyenpniak v. License Appeal Commission, 11 Ill App2d 193, 136 NE2d 562 (1956) were appeals from judgments denying and granting, respectively, applications for retail liquor licenses. In each case this court characterized the place of business contemplated by the licenses as a “tavern.”

A “restaurant” is an establishment where meals may be procured by the public. Black, Law Dictionary (4th Ed 1951); Webster, Third New International Dictionary (1967); see Drucker v. Frisina, 31 Misc2d 469, 219 NYS2d 680 (1961); Food Corp. v. Zoning Board of Adjustment of City of Philadelphia, 384 Pa 288, 121 A2d 94 (1956). Section 95.23, chapter 43, Ill Rev Stats 1967, defines a restaurant as a place without sleeping accommodations where meals are regularly served to the public. However, many restaurants serve liquor and some establishments that are ostensibly restaurants have bars where liquor is sold to be drunk on the spot. Just as there are restaurants which serve liquor, there are taverns which serve food. Generally, it can be stated that if the service of food is incidental to the business of serving liquor, the establishment is a tavern; but if the reverse is true the establishment is a restaurant. If neither is subordinate to the other the establishment may be both a tavern and a restaurant. Babb v. Lewis, supra; Stetzer v. Chippewa County, 225 Wis 125, 273 NW 525 (1937).

The lease here considered did not define the word “tavern” and did not have any descriptive terms to qualify and limit the word. Contrast Levy v. Johnstone & Hunt, 224 Ill App 300 (1922), where the lease provided that the premises were to be occupied “for a saloon and sale of wines and liquors and for no other purpose whatever.” The court stressed the descriptive words “sale of wines and liquors” and stated the meaning of the word “saloon” in the lease was limited by the words associated with it.

The plaintiff’s affidavit claimed that the defendant was operating a restaurant; the defendant’s affidavit indicated that he was operating a tavern and a restaurant. In support of his contention that this was a permissible use the defendant presented an affidavit of the National Boulevard Bank’s rental agent. The affidavit alleged that for six years prior to the assignment from Bleizeffer to Lembessis the premises had been operated as a tavern and restaurant, that the premises contained restaurant and tavern fixtures, that it was the agent’s understanding that the term “tavern” included the sale of food, and that it was expressly understood between the agent and the defendant that a tavern and a restaurant were to be conducted on the premises.

To the rental agent and to his principal, the National Boulevard Bank, the word “tavern” in the lease meant a place where both food and liquor were sold. To the American National Bank’s rental agent a tavern meant a place where only liquid refreshments were to be sold. To the beneficiaries of the trust held by the American National Bank, a tavern could mean either one — depending upon whether the defendant was or was not willing to double his current rent.

The affidavits presented a genuine triable issue of fact as to whether the defendant was operating a restaurant in violation of the lease or a tavern that could also be called a restaurant but would not be a violation of the lease. Evidence of the surrounding circumstances and the meaning attributed to the word "tavern” at the time the lease was executed, and at the time the lease was assigned, are necessary to determine the understanding of the lessor and lessee. A contract is to be enforced according to the sense mutually understood by the parties at the time it was made. Greater deference should be given to their clear intent rather than to any particular word they may have used to express it. Knorr v. White Brothers Trucking Co., 79 Ill App2d 471, 224 NE2d 299 (1967). Where all the parties adopt and act on a certain construction of a contract, there is no better extrinsic evidence of their intention than the interpretation they themselves place on it. Keefer Coal Co. v. United Elec. Coal Companies, 291 Ill App 477, 10 NE2d 210 (1937).

The plaintiff by affidavit alleged that the defendant failed to furnish a certificate of plate glass insurance to the lessor as required by the lease. However, according to the exhibit filed with the affidavit (a portion of the lease between the National Boulevard Bank and Bleizeffer) it was the lessor’s obligation to obtain the insurance:

"It is understood . . . that the Lessor, or assigns, is to place Plate Glass Insurance covering all exterior glass . . . during the entire term of the within lease and any renewal or extension thereof or any holdover thereunder, and the premium therefor is to be paid by the Lessees. . . . Said policy shall remain in the possession of the Lessor, or the . . . Agent, during the entire term of the within lease.”

In addition to this contradiction between the plaintiff’s affidavit and the exhibit, the defendant’s affidavit stated that “all necessary insurance requirements were complied with and is presently in full force and effect and always was, duly and timely in force.” Construed liberally, this affidavit denied the allegation of the plaintiff and itself created a genuine triable issue of fact for a jury.

The plaintiff contends that even if the defendant did not violate the lease’s limitation on the use of the premises or the lease’s requirements with respect to insurance, he did not properly exercise the option to extend the lease and, therefore, it was under no duty to execute the extension. The defendant did not exercise the option in his individual name but requested that a new five-year lease be issued to his corporation. An option to extend a lease, in order to be effective, must be exercised in the mode specified by the agreement of the parties and in strict accordance with the scope of the privilege conferred; if the lessee requires the lessor to do something more than what is called for by the terms of the lease, the offer will be considered rejected. Bernier v. Benson, 21 Ill App2d 532, 159 NE2d 39 (1959); 51C CJS, Landlord and Tenant, § 57.

The plaintiff claims that the defendant’s request materially changed the terms of the extension agreement. The defendant responds that his request was valid because he had assigned his lease to the corporation with the knowledge and consent of the then lessor. The assignment was not referred to in the defendant’s motion or affidavits. However, he did contend that the tavern and restaurant business was conducted by and in the name of the corporation and that all licenses for dispensing of food and alcoholic beverages and all necessary insurance policies were issued in the corporate name with the knowledge and consent of the National Boulevard Bank and its rental agent. The defendant’s contentions, liberally construed, implied that there had been a waiver of the then lessor’s right to object.

Earp v. Schmitz, 334 Ill App 382, 79 NE2d 637 (1948), was an action for forcible detainer. The premises were leased to Schmitz, d/b/a Central Architectural Iron Works, and it was charged that he allowed them to be occupied by the Central Steel Fabricating Company, a new corporation organized and controlled by him. The plaintiffs argued that the corporation was a distinct entity. The Appellate Court acknowledged this but stated that leases are to be construed most strongly against the lessor and that forfeitures are not favored in the law. It found that there was no hiding of the corporate existence from the lessors, that they were not misled, that they dealt with Schmitz individually, that there was no change in the nature of the business conducted on the premises after the corporation was formed and that part of the rent was paid by a check of the corporation and it was accepted, cashed and the proceeds retained. The judgment in favor of Schmitz was affirmed. Peacock v. Feltman, 243 Ill App 236 (1927), was also an appeal from a judgment for the defendant in a forcible detainer action. The lessors contended that the lessees breached the lease by forming a new corporation which conducted its business on the leased premises. The court termed this a “technical breach of the lease.” The lessors had accepted rent from the new corporation for a number of months and it was held that the breach was waived by them and that they were estopped by their own conduct from asserting the breach as a ground for forfeiture. The court stated that the general rule was expressed in Webster v. Nichols, 104 Ill 160 (1882) :

"Any act done by a landlord, knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as his tenant, is a waiver of such forfeiture. . . . The receipt of rent subsequently accruing from the tenant by the landlord is such an act, and the forfeiture thereby waived.”

In the present case there was no concealment of the corporation from the lessors and there was no change in the business conducted on the premises. It further appears that the original lessor accepted rent from the corporation for a considerable period of time and that the plaintiff-lessor accepted it from the corporation for the two months preceding the expiration of the lease. If the contentions of the defendant are correct, there was but a technical breach of the lease which would not justify the forfeiture ordered by the trial court. The contentions also answer the plaintiff’s claim that no privity of interest existed between itself and the corporation. The contentions created a genuine issue of material fact as to whether there was a waiver by the original lessor.

The complaint, affidavits and exhibits raised genuine triable issues of material fact and the plaintiff was not entitled to judgment as a matter of law. The judgment will be reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

SCHWARTZ and McNAMARA, JJ., concur.


author: HR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Monden, Defendant-Appellant.
    Gen. No. 53,053.
    First District, Fourth Division.
    October 8, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   HR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Armed robbery. HI Rev Stats (1965), c 38, § 18-2.

JUDGMENT

After a bench trial, defendant was found guilty of armed robbery and sentenced to a term of 2 to 5 years.

CONTENTION ON APPEAL

Defendant’s only contention on appeal is that the court erred in accepting his jury waiver.

EVIDENCE

When the case was initially called for trial, defendant and his attorney (Asst. Public Defender Toole), along with the codefendant, Taylor, engaged in the following colloquy with the court:

THE CLERK: “Theodore Taylor, Eddie Monden.”
MR. TOOLE: “May I have a jury waiver, please ?”
THE COURT: “Is this a bench or a jury ?”
MR. TOOLE: “It is a bench, Judge.”
THE COURT: “Is that correct, Mr. Taylor?”
THE DEFENDANT TAYLOR: “Yes, sir.”
THE COURT: “Mr. Monden?”
THE DEFENDANT MONDEN: “Yes, sir.”
THE COURT: “You understand, each of you, you have a right to a jury trial. You are waiving that right, Mr. Taylor?”
THE DEFENDANT TAYLOR: “Yes, sir.”
THE COURT: “Mr. Monden?”
THE DEFENDANT MONDEN: “Yes.”
THE COURT: “Indicate that by signing a jury waiver.”
MR. TOOLE: “For the record, I am tendering to the Court jury waivers which have been signed by the defendants.”
THE COURT: “Ready to proceed?”
MR. MORAN: “Yes.”

The doctrine is well entrenched that it is the trial judge’s responsibility to insure that the waiver of a jury trial is knowingly and under standingly made. Boykin v. Alabama, 395 US 238; People v. Mims, 42 Ill2d 441, 248 NE2d 92; People v. Wesley, 30 Ill2d 131, 195 NE2d 708; People v. Brownlow, 114 Ill App2d 458, 252 NE2d 685. Whether a waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining the issue. People v. Palmer, 27 Ill2d 311, 189 NE2d 265.

The instant facts indicate that defendant’s attorney made the initial request for a bench trial, but that the judge subsequently asked the defendants, in essence, what type of trial they wanted. Defendant reaffirmed his attorney’s reply that it was to be a bench trial. The judge then pursued the matter further by informing defendant of his right to a jury trial and posing the specific question of waiver directly to defendant. Defendant reiterated his waiver orally, and also signed a jury waiver form.

Defendant cites People v. Bell, 104 Ill App2d 479, 244 NE2d 321, to support his contention, but it is factually distinguishable from the case at bar. In Bell, this court stated:

. . . defendant never manifested an understanding of the nature of a jury trial. His only response when questioned about this was “A what?” Nor are we apprised of any other indication that defendant knew or was then informed of the meaning or consequences of a jury waiver.

The circumstances before us, however, indicate a concern on the part of the trial court to inform defendant of his constitutional right to a jury trial. The court also questioned defendant directly and received responses, both orally and in writing, adequate to indicate, in our opinion, that defendant knowingly and understandingly waived his right to trial by jury.

The conviction is affirmed.

Affirmed.

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


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Vinson (Impleaded), Defendant-Appellant.
    Gen. No. 52,849.
    First District, Fourth Division.
    October 8, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Attempted murder. Ill Rev Stats (1965), c 38, §§ 8-4, 9-1.

Two charges of armed robbery. El Rev Stats (1965), c 38, § 18-2.

Murder. Ill Rev Stats (1965), c 38, § 9-1.

JUDGMENT

After a trial by jury, defendant was found guilty of all four crimes charged. He was given concurrent sentences of 10 to 20 years on the attempted murder charge, 10 to 30 years on each charge of armed robbery, and 25 to 50 years on the murder charge.

CONTENTION ON APPEAL

The sentences were excessive.

EVIDENCE

Three occurrence witnesses for the State offered substantially similar testimony at trial. Each identified defendant as the man responsible for the alleged criminal acts.

Joe Woodward, a service station attendant, was working on the evening of January 13, 1966, when Ozzie Stovall walked into the station at 4400 West Cermak Road and used the telephone. He was followed into the station by two other men, defendant and Henry Triplett, who announced a stickup. Defendant took $35 from Woodward.

Vernon Johnson then came into the station and, as he entered, defendant told him to get into a corner. Defendant fired a shot past Johnson into the floor.

An off-duty policeman, Hutchie Moore, emerged from the washroom while the robbery was in progress, and was told to put his hands up. He was searched by Triplett, who took his wallet, felt his revolver, and told defendant to “burn him.” When defendant fired a shot in Moore’s direction, he grabbed Triplett and began to wrestle with him. Defendant continued to shoot, hitting Moore twice in the stomach and killing Triplett. Both Johnson and Woodward witnessed the shootings.

Stovall and defendant both testified they had been drinking heavily that evening. Defendant said that when he entered the station, he didn’t have a gun until Triplett gave it to him. He denied firing it, claiming that he dropped it as he was backing out of the door.

At the hearing in mitigation, defense counsel reminded the court that there was a great deal of testimony concerning the amount of alcohol consumed by defendant on the evening in question. He also brought out that defendant was 26 years old, married, with a daughter, and was gainfully employed at the time of the occurrence.

OPINION

Defendant contends that the sentences given were excessive and should be reduced, pursuant to Supreme Court Rule 615 governing the powers of the reviewing court. Ill Rev Stats (1967), c 110A, § 615(b) (4).

When the sentences under review are within the statutory limits, as they are in this case, they will not be disturbed unless they constitute a clear departure from fundamental law or are not proportioned to the nature of the offense. People v. Gold, 38 Ill2d 510, 232 NE2d 702. The evidence in the instant case indicates that the punishment is not disproportionate to the nature of defendant’s conduct. Therefore, since the trial judge had a direct opportunity “in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed” (People v. Taylor, 33 Ill2d 417, at 424, 211 NE2d 673), we will not modify that penalty.

All four sentences are affirmed.

Affirmed.

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


author: TRAPP, P. J. TRAPP, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Tillman, Defendant-Appellant.
    Gen. No. 11,059.
    Fourth District.
    October 16, 1969.
    Rehearing denied and supplemental opinion December 18, 1969.

      Robert T. Trimpe, of Champaign, for appellant.
    L. E. Johnson, State’s Attorney, of Urbana, and Dennis Hart, of Champaign, for appellee.
   TRAPP, P. J.

Defendant was found guilty of murder by the verdict of a jury. His motion for a new trial was denied and defendant appeals. No issues are raised as to the indictment or the instructions.

It is urged that defendant was not proven guilty beyond a reasonable doubt, particularly in the light of the circumstantial evidence of guilt as measured with the alibi evidence submitted, and that the trial court erred (1) in refusing a mistrial for prejudice of a juror, (2) in excluding evidence that another person had been arrested for the crime, (3) in admitting the evidence of flight by the defendant, (4) in admitting into evidence certain exhibits, and, that the State’s Attorney made improper remarks in his opening statement and improper argument to the jury. Finally it is urged that a new trial should have been allowed because of newly discovered evidence.

The deceased, Plankenhom, was employed as a night janitor at Rick’s IGA Store, a food market in Champaign. At 3:31 a. m. on the morning of August 7,1967, a report of fire at Rick’s was received by the Champaign Fire Department. The source of the report remains unidentified. Firemen arrived within two or three minutes of the report and found an intense fire throughout the building. The body of the victim was found some six feet from the door of the market when the firemen were able to enter an hour or more later. Examination disclosed three gunshot wounds, two of which were capable of causing death.

A .32-caliber copper jacketed bullet was removed from the body during an autopsy. On August 24, 1967, an automatic pistol was found beneath the rear seat of an abandoned automobile located about two and one-half blocks from Rick’s. Ballistic tests demonstrated that the autopsy bullet was fired from this gun. On August 23, 1967, a number of shells with copper jacketed bullets were found in a ditch near the store.

It appears that during the month of September pictures of this gun were shown on television and printed in the area newspapers. Shortly thereafter the witnesses, Wittig and Turner, reported to the Champaign police department concerning purchases and sales of the gun which would tend to place possession of it in the defendant at the time of the shooting.

Wittig was a city fireman and a licensed gun dealer. Turner was and had been for some years both a waiter at the Urbana-Lincoln Hotel and a janitor at the Busey State Bank. It appears that he made a hobby of collecting guns and bought from Wittig from time to time. Their testimony at the trial was to the effect that Wittig had purchased the weapon at a gun show in Indiana and thereafter sold and delivered it to Turner about the last of June, 1967, and that Turner had sold it to the defendant during the month of July. The respective sales involved $30 and $35, and installment payments were made. No record of the dates of payments were kept by Wittig or Turner concerning either sale. Defendant was employed as a bus boy at the Urbana-Lincoln Hotel. Turner testified that the gun was delivered to the defendant in the basement of the Busey State Bank. On September 23rd a police detective, Gentille, met Wittig and Turner at the hotel and thereafter went with Turner into the kitchens to look for the man to whom Turner had sold the gun. Gentille testified that when he and Turner were about three feet distant from defendant, Turner said that this was the man to whom he had sold the gun; that Gentille then told defendant that he wanted to talk with him and that defendant asked what about, and that the witness stated that the conversation was to be had at the State’s Attorney’s office. He testified that defendant asked and received permission to get his coat and thereupon ran, and he, Gentille, chased defendant for two blocks without success. The witness brought the defendant back from Louisiana some six weeks later.

Defendant was a member of a singing group known as the Golden Stars. On August 6th the group went to Chicago where they sang at two churches. The essence of the alibi evidence is that the group did not return to Champaign until 3:00 a. m. or afterwards. Most members of the group testified to the time as a matter of recollection generally, without references to timepieces. Rose Thadison, defendant’s mother, said they returned after 3:00 or 3:30 a. m.; Harold Thadison, defendant’s stepfather, fixed the time as around 3:00 a. m.; Louella Goins, defendant’s sister, said the return was a little after 3:00 a. m., Joanna Taylor, not related, stated that the return was around 3:00 a. m. David King, defendant’s cousin, fixed the return as possibly as early as 2:45 a. m. and William Hampton, no relation, thought the return might have been as early as 2:30 a. m. Defendant says that it was 3:10 a. m. when they arrived at home.

Defendant, his mother, stepfather and sister prepared coffee (said to take ten minutes), drank a cup of coffee or two and went to bed. The Thadison home where defendant resided is described as being less than two blocks from the market. None of the family heard of the activities incident to the fire and learned of it the next morning.

This alibi testimony is measured as against defendant’s proximity to the crime scene and the nature of the fire. Investigation of the latter led to an official conclusion that the fire in the market had been set with cans of charcoal lighter fluid scattered in various parts of the building. The battalion chief who arrived with the first fire equipment expressed the opinion that the fire, as he first saw it, had been going for twenty-five or thirty minutes if one assumed the use of flammable fluid. One Mc-Dade on patrol as a private security man, testified that he passed the market between 2:30 and 2:50 a. m. and saw no sign of fire or smoke. One Millidge, a route man for a nearby bakery, checked his loaded truck and passed the market at a time estimated at 3:30 a. m. He observed no evidence of fire, but saw two persons walking north on Randolph street. We cannot ascertain whether the individuals were men or women.

Defendant urges that the alibi evidence stands uncontradicted and that such fact is sufficient to create a reasonable doubt of guilt. It seems to be the theory presented that establishing defendant’s possession of the gun is circumstantial evidence on an issue of identification. He cites The People v. Guardino, 13 Ill2d 58,147 NE 2d 338. In that case the “circumstantial evidence” referred to by the court arose through a witness’ purported identification of an automobile subsequently traced to the defendant. Such evidence was there measured by uncontradicted testimony which would establish an alibi. Here the sale of the gun to the defendant is a matter of direct testimony. Defendant’s identity is not established by circumstances. In The People v. Wheeler, 5 Ill2d 474, 126 NE2d 228, it was similarly contended that the verdict could not stand because there was no direct impeachment of alibi witnesses. It was held that a conflict of evidence does not require reversal, but that the issue is one of credibility for the jury. People v. Habdas, 94 Ill App2d 330, 236 NE2d 731. The jury has the duty to consider the evidence tending to prove an alibi with all of the other evidence and determine from such whether or not there is a reasonable doubt that defendant was present at the time and place charged. The People v. Pearson, 19 Ill2d 609, 169 NE2d 252.

Defendant denies knowing where the witness Turner lived or being at his home, and particularly denies being there on the morning of August 6th to make a payment on the gun. Turner, testifying about this transaction, was corroborated by the witness, Louis Dyer, who was otherwise unconnected with the matters at issue. The record shows that defendant’s testimony as to the time of departure for Chicago on August 6th is directed to the issue of this meeting, and defendant’s testimony as to such time of departure varies noticeably from that of his alibi witnesses.

There was a close issue of proximity of time and place in the structure of the alibi and the events at the market where Plankenhorn was shot. The evidence conflicts and guilt must be fixed by determining the credibility of the witnesses. Such is the function of the jury, which has an opportunity to hear and observe those testifying. A reviewing court will not set aside a jury’s verdict of guilty unless the evidence is so palpably contrary to the verdict, or so unreasonable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. The People v. Ford, 19 Ill2d 466, 168 NE2d 33; The People v. Nicholls, 42 Ill2d 91, 245 NE2d 771; The People v. Sumner, 43 Ill2d 228, 252 NE2d 534.

Defendant argues that the trial court erred in admitting the evidence of defendant’s “flight” when approached by officer Gentille and Turner at the hotel. It is contended that there was no evidence of defendant’s “flight” from the scene of the crime and that there was no evidence of “flight” from arrest. It is defendant’s position that there must be independent evidence showing defendant’s consciousness of guilt, that he had a knowledge of the crime and that he was suspect. It is argued “the law should require that some type of proof should be required before this type of evidence may be presented to the jury.” It is further argued that in psychological theory an innocent person may flee, or that a person may flee because of knowledge of some other offense which is not evidence of guilt as to the offense charged. It is argued that while the defendant may explain his flight, in most cases he is hard put to remove the implication of guilt, particularly if he must do so in terms of apprehension of arrest for some other offense. In arguing motions before the trial court, counsel urged that defendant’s flight might be explained in terms of his parole, or fear of a charge that he possessed a gun on parole, and that it would be unfair for defendant to be compelled to testify in order to explain the alleged evidence of flight.

Defendant’s argument as to the “foundation” required before evidence of flight may be admitted is founded upon The People v. Harris, 23 Ill2d 270, 178 NE2d 291 and People v. Cox, 74 Ill App2d 342, 220 NE2d 7. In Harris the evidence concerned defendant’s escape from jail where he was being held after surrender on an unrelated charge. It was held that such evidence was not competent in a trial for the offense then charged. In Cox, defendant’s companion testified that as defendant was driving his car he drove to flee at the sight of a police car with a flashing red light. There was no evidence in the record that the police were then concerned with the defendant. It was held that such evidence and instruction on flight were error. Here the defendant was sought out at his place of work by a police officer and the man who testified later to selling the murder weapon to defendant. Thereupon defendant departed the scene to make a successful escape.

In the event, defendant did testify for the purpose of supporting his evidence of alibi and to deny that he had bought or possessed the gun. He did not, however, undertake to explain directly, or upon rebuttal after evidence of prior convictions had been introduced into the record, the circumstances of the alleged flight. This record does not support the argument that defendant was unfairly compelled to testify in order to explain the evidence tending to show flight. Similarly, the psychological argument that one may flee in panic, although innocent of the offense, must be weighed in the light of the evidence that he persisted in staying away until returned some six weeks later.

The defendant may show, by competent evidence, facts which tend to prove that he did not leave the scene with a consciousness of guilt, or that his actions were consistent with innocence. The People v. Autman, 393 Ill 262, 65 NE2d 772 and The People v. Bundy, 295 Ill 322, 129 NE 189. In The People v. Davis, 14 Ill2d 196, 151 NE2d 308, the court held the testimony that defendant fled when the identifying witness approached him with police officers some six weeks following the date of the offense to be admissible as circumstantial evidence. Circumstances of flight must be considered with all of the other evidence in the case. The People v. Herbert, 361 Ill 64, 196 NE 821.

Defendant urges that the trial court erred in failing to grant a mistrial due to prejudice of a juror. Defendant’s motion was made after the jury had been picked and some eight witnesses had testified. One Dorothy Workman advised defendant’s counsel that she was a fellow employee of a juror who she felt “didn’t care for negroes,” and that she “thought he should be questioned definitely.” She was sworn and examined by the trial judge. The specific remark of the juror upon which she based her conclusion was, by its terms, a response of the juror to statements by Workman. She described the juror as an honest man but “wanted to be sure he was questioned.” The date of the discussion between the juror and the witness was not fixed and nothing suggests that it was related to the murder or to the defendant. No voir dire examination is contained in the record, but it appears to be conceded that appropriate questions were asked and answered as to prejudice and sympathy. The court gave a relevant instruction upon prejudice. Defendant cites The People v. Kirkpatrick, 413 Ill 595, 110 NE2d 519; The People v. Strauch, 240 Ill 60, 88 NE 155; The People v. Cravens, 375 Ill 495, 31 NE2d 938; The People v. Ortiz, 320 Ill 205, 150 NE 708, and The People v. Gold, 38 Ill2d 510, 232 NE2d 702. The factual elements of the cited cases are substantially different. In Kirkpatrick, the juror had served on the panel which had just tried a codefendant. See also The People v. Faulisi, 34 Ill2d 187, 215 NE2d 276. In Ortiz, the juror had expressed prejudice against the defendant then upon trial. In Cravens, the juror had expressed an opinion of defendant’s guilt which he concealed on voir dire. That case states the test to be whether the juror is uncommitted upon the issue of guilt or innocence and is prepared to weigh the evidence impartially. The court observed the juror and participated in the voir dire examination. The discretion of the trial court in granting or refusing the motion will not be disturbed unless there is a clear abuse of discretion. The People v. Harris, 38 Ill2d 552, 232 NE2d 721; The People v. Gold, 38 Ill2d 510, 232 NE2d 702.

Defendant asserts prejudicial error in admitting into evidence defendant’s Exhibits No. 29, No. 30 and No. 31, each being a record of defendant’s conviction of felony. Upon the trial defendant’s counsel stipulated that defendant was the person convicted upon pleas of guilty to five offenses in Louisiana as shown by Exhibit No. 29. Exhibits No. 30 and No. 31 relate to felony convictions in Champaign County. During the trial defendant’s objection was that he was taken by surprise at the introduction of Exhibit No. 31, stating that he had not been advised of it. He further objected that there was prejudice in showing records of multiple convictions to the jury. It is the theory that the record of one conviction is sufficient for the statutory purpose of impeachment. C 38, § 155-1, Ill Rev Stats 1967. We find no statutory limitations upon the number of records of conviction which may be introduced. The People v. Crump, 12 Ill2d 402, 147 NE2d 76.

People’s Exhibit No. 29 shows convictions in Louisiana in 1955 upon pleas of guilty to various felonies. Defendant cites Burgett v. Texas, 389 US 109, 19 L Ed2d 319 (1967), as holding such conviction void because the record does not affirmatively show counsel, or appointment of counsel, for the defendant. Such issue was not raised by objection during the trial, it was not raised in the post-trial motion or in defendant’s brief and argument. It is presented for the first time in the reply brief filed. Since the issue was not presented to or passed upon by the trial court, the matter is not preserved for purposes of review within the jurisdiction of this Court. People v. Valentine, 60 Ill App2d 339, 208 NE2d 595; People v. Webb, 80 Ill App2d 445, 225 NE2d 679. In People v. Scott, 89 Ill App2d 413, 232 NE2d 478, records of several convictions were admitted into evidence. On appeal the State’s Attorney conceded that defendant had not been convicted under one of the indictments. It was held that there was no reversible error where the matter had not been called to the attention of the trial court and where valid records of conviction for impeachment purposes were presented.

Defendant asserts error in that the trial court failed to grant a new trial upon the basis of newly discovered evidence. The affidavit of one Percy Brown is attached to defendant’s motion for a new trial. In substance, it is stated that following the verdict here Brown saw the defendant while waiting for the jail barber and that in such conversation the defendant was told that the witness Turner had tried to sell the gun in evidence to Brown on days which appear to be Wednesday, August 9th, and Saturday, August 12th, following the shooting on August 7th. The gun was found by the police in an abandoned automobile on August 24th. Brown’s affidavit stated that he had seen the gun on television and in newspaper pictures and that he was then taken to the jail and examined the weapon. His affidavit is, “I am positive” that the gun examined is the one that Turner attempted to sell to him.

Brown had been convicted of murder some two or three weeks prior to the commencement of the Tillman trial. While a transcript of the hearing on the motion for a new trial is not in the record, the trial court’s memorandum states that Brown’s attorney, with Brown’s consent, testified that several weeks prior to defendant’s trial Brown was asked by his attorney if he had any knowledge of the Tillman case. Such inquiry was made at the request of defendant’s attorney. The testimony is that Brown had replied that he had no knowledge, and had heard nothing about such case as he was in Detroit at the time of the murder.

From defendant’s brief it appears that Brown was present at such hearing, but that he was not called to testify or tendered as a witness. It is now argued that the court did not see the witness testify as in The People v. Saisi, 24 Ill2d 274, 181 NE2d 68, and that his credibility could not be determined from the affidavit.

Upon this issue defendant has the burden of going forward with the evidence, and it is conceded that Brown was present or available. There are no facts in the record tending to support the defendant’s argument that Brown first denied knowledge of the Tillman case because he, Brown, “apparently thought” his attorney was asking if he was involved in that matter.

Defendant urges prejudicial error in the fact that the widow testified at the trial and asserts that the purpose of such testimony was to prejudice the jury. He cites The People v. Bernette, 30 Ill2d 359, 197 NE2d 436. The record shows that Mrs. Plankenhom testified as to the residence address of the deceased, that he was employed at night at several markets, that he worked normally on August 6th preceding his death on the night of August 7th, and she testified to the deceased’s possession of a sum of money which was never found. In Bernette, a widow’s testimony concerning the number and ages of her children was held to be prejudicial in the light of the jury’s selection of the death penalty, rather than upon its verdict of guilty.

Defendant contends that there were prejudicial statements in the prosecution’s opening and in the arguments made. Such matters are not included in the record before us and we cannot find, for purposes of review, the matters of argument purported to be quoted.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

TRAPP, P. J.,

Upon petition for rehearing we are supplied with a supplemental record containing counsels’ statements and arguments. This was not filed at the time the opinion was adopted. Ordered filed, it thereupon became possible to review defendant’s contentions that such contained matters so prejudicial that the case should be reversed despite the fact that no objections thereto were made in the trial court. So far as we can find, these matters were not contained in the motion for a new trial, or in the motion for arrest of judgment.

It is urged that during argument the State’s Attorney misstated the testimony of defendant’s alibi witnesses in arguing that defendant and his party left Chicago at 11:00 p. m., rather than that they left a designated address in the City at that hour. Such argument was directed to the jury’s consideration of an estimate of the time of travel to defendant’s home which was in the vicinity of the scene of the homicide.

The defendant also argued the element of time based upon the testimony of the alibi witnesses in terms which were equally imprecise. There was, in fact, testimony as to various times by the several witnesses. The case is thus distinguished from The People v. Romero, 36 Ill2d 315, 223 NE2d 121 and The People v. Beier, 29 Ill2d 511, 194 NE2d 280. In the cited cases the argument was upon assumptions made by counsel when there was no testimony or evidence in the record concerning the matter argued. Again, the State’s Attorney admonished the jury that his argument was not evidence and the jury should recall the testimony. The court also instructed the jury to this effect. Neither this argument, nor the several other items of argument reiterated, were so prejudicial as to require reversal.

The petition for rehearing further complains that we did not discuss, at length, the trial court’s order entered upon the State’s Attorney’s motion which prevented the defendant from commenting upon, or introducing evidence that another had been arrested for the homicide. He cited The People v. Pezutto, 255 Ill 583, 99 NE 677, which holds that a defendant may prove a fact or circumstance tending to show that the offense was committed by another. Defendant’s given instruction advised the jury that in this case his indictment was not evidence and did not support an inference of his guilt. An arrest has no higher value as evidence of guilt than an indictment. The arrest of another has no more relevance to defendant’s innocence than his indictment has to defendant’s guilt.

It is further asserted that the trial court’s memorandum, noted in the opinion, went outside the record in asserting that a picture of the gun was shown on television and printed in the newspapers. The significant factor is that the witnesses, Turner and Wittig, became aware of the fact that the police had found the gun, for the record shows a report by them to the police. As we read the record, defendant’s witness, Rose Thadison, stated that she had seen the gun as shown on television.

Defendant renews the contention that one of a number of records of conviction of defendant introduced to impeach his credibility did not show a felony conviction. Such circumstance is not reversible error within the rule of People v. Scott cited in the opinion.

We adhere to our opinion as supplemented upon denial of rehearing.


author: MR. PRESIDING JUSTICE LYONS

text:
    City of Chicago, Plaintiff-Petitioner-Appellee, v. Hart Building Corporation, et al., Defendants, Richard A. Keefe, Respondent-Appellant.
    Gen. No. 51,979.
    First District, Second Division.
    October 21, 1969.

      Thomas W. McNamara and Clarold L. Britton, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Richard A. Keefe, the respondent in a contempt proceeding, appeals from a decree finding him guilty of contempt and imposing a fine of $5,000 and additional penalties which will be discussed later in this opinion. In this appeal, the respondent attacks the jurisdiction of the trial court, the sufficiency of the evidence, particularly with regard to the element of criminal intent and the severity of the punishment.

In 1959 the City of Chicago (hereinafter referred to as the City) filed numerous suits against various corporations owned and controlled by Jack and Jules Winkler seeking to correct Building Code violations in a group of twenty properties owned by the corporations. In 1963 the City petitioned the court for the appointment of a receiver to correct these violations since the Winklers had not cooperated. In February, 1963, Keefe was appointed receiver for fourteen of these properties and was given directions to take possession of the premises; preserve the properties; collect the rents; and with the prior authorization of the court, borrow money and encumber the buildings so that the borrowed funds could be used to repair the structures and bring them into compliance with the Building Code of Chicago. These were the only express powers given to the receiver. Keefe’s receivership period extended from 1963 to March, 1964, as to one of the four properties involved in this appeal and from 1963 to July, 1965, as to the other three properties. On these latter dates, Keefe filed his final report and account as receiver for the specific property or properties involved; received court approval of his final account; and was discharged as receiver for each of these properties. During his period of receivership, three of the four buildings were demolished pursuant to court order.

In three of his final reports, Keefe represented under oath that the present owner of the property was a financial institution, naming the bank, which held legal title as trustee under a land trust, giving the trust number. In the fourth report, Keefe represented under oath that Austin Carter was the present owner. In all of these final reports, Keefe recommended, again under oath, that possession of the premises be taken from him as receiver and given immediately to the new owner.

On November 3,1965, after Keefe had been discharged as receiver of the four properties involved in this appeal, the City filed its verified petition for disclosure alleging that Keefe was appointed receiver of the enumerated properties in February, 1963; that he went into possession and managed the premises thereafter; that during the period of his receivership a fiduciary relationship existed between the City of Chicago, the Hart Building Corporation, the court, and Keefe, as receiver; and that it was unable to determine from the facts available to it if Keefe, as receiver, had breached this fiduciary relationship. The petition closed with a prayer that the court enter a rule on Keefe, as receiver, requiring him to make a complete disclosure of his interest in and to each and every piece of property entrusted to him as receiver from the date of his appointment to the date on which this petition for disclosure was filed.

In response, Keefe filed a special appearance and motion to strike alleging, inter alla, that the court had no jurisdiction over him or the subject matter since his final reports and accounts had been approved after due notice to all interested parties and the court had discharged him as receiver. Keefe also alleged that the petition for disclosure was an improper pleading since it could not be regarded as ancillary to any pending proceedings.

After a hearing, this motion to strike was denied and Keefe was ordered by the court to make a full disclosure in writing and under oath. After he had filed a statement and a supplemental statement, both of which were rejected by the court as being incomplete, Keefe presented his amended statement in which he stated, under oath, that on or about November 6,1963, which was after he had been appointed receiver, his attorney, unnamed, had executed a written contract of purchase with one Harry Eager concerning three of the four properties involved in this litigation; that Eager was the holder of the first mortgage on each of these properties and had instituted foreclosure proceedings against them; and that Keefe, through this unnamed attorney, was to purchase Eager’s interests therein. The amended statement went on to mention that Keefe did not acquire title from himself as receiver or through any proceedings in the receivership but rather that Harry Eager was the successful bidder at the various foreclosure sales and that Keefe paid Eager in exchange for the delivery of Eager’s master’s deed to each one of the three properties. In addition, a judgment creditor of one of the corporations owned and controlled by the Winklers had exercised its equity of redemption pertaining to one of the properties involved in the foreclosure sales and Keefe had to pay it a certain sum for its interest therein, as well as purchasing the tax deed interest of another party who had been the highest bidder in a tax foreclosure sale applicable to another one of the properties which had been involved in the foreclosure proceedings. Keefe admitted that in time the legal title to these three properties passed into three land trusts in which he was the sole beneficiary and that he had paid exactly $41,529.80 to acquire these three properties.

As for the fourth property involved in this appeal, Keefe admitted that the first mortgagee, Lincoln Park Federal Savings and Loan Association, also had foreclosed and that Keefe’s agent and nominee, Austin Carter, was the highest bidder ($15,000) at the foreclosure sale, after which Carter passed the legal title to a land trust in which one Gene Byrne was the sole beneficiary but he, Keefe, held a partnership interest therein. In conclusion, Keefe denied that he had violated his duties as receiver or any fiduciary relationship but admitted that he had paid the Winkler brothers, through their attorney, the sum of $15,000 “for their peace herein although they had no equity interest.” The total sum which Keefe apparently paid for these four properties was $71,527.80.

After this amended answer was filed, lengthy evidentiary hearings were held on many occasions. A transcript exceeding 1,600 pages has been filed in this court. Eighteen witnesses testified and more than thirty exhibits were received in evidence. The chief witnesses for the City were Harry Eager; Jack Winkler; Marvin Patrick Cohen, attorney for the Winklers; Austin Carter; and Gene Byrne. Keefe was served with a subpoena but the City, apparently recognizing that the privilege against self-incrimination is applicable to the type of contempt proceedings involved in this appeal, did not compel him to testify. Keefe did not testify in his own behalf. The defense presented no witnesses.

Harry Eager testified that he was a mortgage broker operating under the name of Illinois Mortgage Company, a sole proprietorship, and that on November 6, 1963, he sold his mortgage interests in three of the instant properties to an attorney, Harold Ginsburg, who was referred to in the written contract as “Ginsburg or his nominee.” After the contract was signed, Eager asked Ginsburg if Keefe was interested in the purchase and received an affirmative reply. The signed, written contract between Eager and Ginsburg was admitted into evidence. It provided, among other things, for the continued use of Eager’s name as plaintiff in all of the pending mortgage foreclosure proceedings if Ginsburg or his nominee so requested.

Jack Winkler testified that in February, 1964, he had a meeting with Keefe and Winkler’s attorney, Marvin Patrick Cohen, in the latter’s office at which time Keefe told Winkler that he would pay Winkler $35,000 if he would not attend the foreclosure sales pertaining to three of the four properties involved in the instant appeal. Payment was to be $5,000 in cash payable every thirty days beginning in March, 1964. Winkler agreed to this oral proposal, received $5,000 a month in cash from March through June, 1964, never attended the foreclosure sales at which Eager was the successful bidder, and maintained that Keefe still owed him $20,000 based upon his oral promise. Winkler’s attorney, Cohen, corroborated much of this testimony.

Austin Carter stated that he was a real estate broker in Chicago; that he had known Keefe for more than four years; that he had acted as nominee for Keefe at the latter’s request in the purchase, at a foreclosure sale, of one of the properties involved in this appeal; that he did not know that Keefe was the receiver for the building at the time of the foreclosure sale; that thereafter he conveyed legal title by way of a land trust to a bank with Gene Byrne as beneficiary; and that he had used Keefe’s money to purchase the property.

Gene Byrne testified that he was a real estate salesman in a corporation owned and controlled by Keefe; that he was the beneficiary of a land trust relating to one of the properties involved in this appeal but that he had paid no consideration for his interest; that Keefe had paid for the property using Carter as Keefe’s nominee at the foreclosure sale and Byrne as his nominee in the land trust transaction; that there was an oral agreement between him and Keefe specifying that Byrne’s interest in the trust was to be 5% and Keefe’s was to be 95% ; and that Keefe used this land trust device to conceal his ownership in various properties on North Wells Street in Chicago since he was purchasing quite a bit of property in the area in an attempt to put together a large redevelopment and did not want the selling price of the available properties to become inflated.

After this testimony was completed, the court directed the City to prepare a petition for rule to show cause why Keefe should not be held in contempt of court for his actions in acquiring, during the period of his receivership, receivership property for his own personal ownership without disclosing this to the court. Keefe filed an answer to this petition denying any guilt. Both parties to this litigation also filed briefs in the trial court supporting their side of the case.

After all the evidence had been taken and the answer to the petition for rule to show cause had been filed, the City was given leave to file instanter, over Keefe’s objection, an amendment to its petition for disclosure so as to conform the pleadings to the proof. The earlier petition for disclosure was thereby amended to include the allegations that Keefe acquired title to enumerated receivership property, without disclosure to the court, while still acting as receiver; that Keefe thereby breached the fiduciary relationship existing between the court and himself, as receiver; that the final orders discharging him as receiver for the four properties involved in this appeal be vacated pursuant to section 72 of the Civil Practice Act; that Keefe be held in contempt of court for his actions; and that the court enter an appropriate fine or penalty. Thereafter, the court simultaneously filed a lengthy opinion giving its reasons for holding Keefe in contempt of court and a decree vacating its earlier orders which had discharged Keefe as receiver for the four properties involved in this litigation; holding Keefe to be in contempt of court; and setting forth the penalty to be paid by Keefe for his actions.

In addition to a $5,000 fine, the court ordered Keefe to file, under oath, a certified accounting, supported by cancelled checks, vouchers, and other necessary documents, showing all the costs and expenses incurred by him in acquiring four properties for his own use and ownership while allegedly still acting as receiver. Certified appraisals were to be made as of the date of the decree by three appraisers: one employed by Keefe; one by the City; and one by the court. The court was then to compare acquisition costs with appraisal value and order a judicial sale as to those properties whose appraised value exceeded Keefe’s acquisition cost. The excess of appraisal value over acquisition cost was to constitute an additional fine to be paid by Keefe to the Clerk of the Court. If the acquisition cost for some of these four properties exceeded the appraisal value, the court would not order a judicial sale of the property but would apply this unrealized loss against the additional fine imposed on Keefe, if any, and he would then pay the net figure to the Clerk of the Court. Keefe appeals from this final decree.

The respondent’s initial contention is that the trial court did not have jurisdiction to entertain the City’s petition for disclosure, which the respondent correctly characterizes as an equitable bill of discovery, because the petition was not ancillary to and in aid of any pending civil suit at law. Instead, the petition is said to be ancillary to a contemplated criminal contempt proceeding. From this basic premise, the respondent urges that since the trial court never had jurisdiction, all of the subsequent proceedings and orders entered were void and of no effect. Such an argument overlooks the point that the City was compelled to commence the action in this unusual way because of the subterfuge employed by the respondent as he attempted to conceal, through the use of nominees, agents, and land trusts, his self-dealing in receivership property without disclosure to the court.

It is apparent from this record that the respondent was thoroughly familiar with the real estate field in which he was employed and that he attempted to take advantage of his knowledge for a forbidden purpose. For example, it is a matter of common knowledge that trustees holding legal title under a land trust will not disclose the identity of the beneficiary of such a trust. In the case at bar, the legal title to all four properties was held in separate land trusts. The City could not have ascertained the identity of the beneficiary when it was discovered, through the examination of public records, that the properties were held in trust. Furthermore, the public records applicable to these four properties did not disclose that Keefe, the respondent, was the purchaser at the respective foreclosure sales since he was clever and careful enough to use nominees in a successful effort to conceal from the public, the City, and the court his self-dealing in receivership property. To sustain the respondent’s contention in this regard would be to enable him to profit from his own wrongs. Within the unusual facts of this case, we hold that no error was committed when the City commenced these proceedings with its petition for disclosure, thereby compelling Keefe to produce the necessary information.

Secondly, the respondent contends that he was found guilty of criminal contempt of court but that the evidence was insufficient to convict in that the element of criminal intent was never proved beyond a reasonable doubt. Moreover, Keefe urges that he violated no fiduciary duties in the acquisition of these properties because he acquired title at judicial sales and not from himself during the receivership period. He also contends that no person interested in the properties as owner, mortgagee, or otherwise is complaining of his conduct as receiver, and he had no duty to disclose his ownership to the court in his final reports since none of the express powers given to him as receiver by the court related to ownership. Although we agree with the respondent that this proceeding does involve a criminal contempt of court, since it was alleged that a fraud had been practiced upon the court thereby affecting the preservation of its dignity and authority, and that the burden of proof in such criminal contempt cases must be beyond a reasonable doubt as to both act and intent (People ex rel. Chicago Bar Ass’n v. Barasch, 21 Ill2d 407, 412, 173 NE2d 417, 420 (1961), United States v. Kroger Grocery & Baking Co., 163 F2d 168, 174 (7th Cir 1947)), we hold that the evidence in this case overwhelmingly shows that the respondent acted knowingly, intentionally, and wilfully. It is difficult to conceive how else we can regard a man’s actions in which he uses nominees, agents, and land trusts to conceal his individual ownership of receivership property acquired during the time of his receivership period and then files false final reports with the court so as to gain his discharge and hopefully avoid any further detection.

It stands undisputed in this record that Keefe used Ginsburg to buy Eager’s first mortgage interest in three of the properties; used Eager to foreclose on these properties as the nominal plaintiff whereas Keefe was the real party in interest; used Carter and Byrne to conceal his ownership in the fourth property; paid Jack Winkler $15,000 in an obvious attempt to keep him from bidding at the foreclosure sale; and filed false final reports with the court failing to disclose that he was the real titleholder. Indeed, many of these actions are admitted in the pleadings, particularly Keefe’s amended statement. Furthermore, Gene Byrne, one of the witnesses at the evidentiary hearings, stated that Keefe was purchasing property on North Wells Street in Chicago for redevelopment purposes and was using the land trust device to conceal his acquisitions. All of the properties involved in this appeal are on North Wells Street. The land trust device was apparently used to conceal a receiver’s personal ownership in the properties. The buildings on three of these properties were demolished during the receivership period pursuant to order of court. Through his manipulations in this case, Keefe was able to secretly acquire four properties on North Wells Street, three of which were ultimately vacant, and was thereby able to further his apparent speculation in the redevelopment of the properties. The conclusion is inescapable that Keefe intentionally, wilfully, and knowingly used nominees and agents as well as the land trust device and his final reports to the court so as to actively conceal his self-dealings in receivership property.

It must not be forgotten that Keefe was a duly appointed receiver when he surreptitiously acquired ownership in the property entrusted to his care. As a receiver, he was an officer of the court which had appointed him, held the property entrusted to him in custodia legis, and had to be most fair and frank in all of his dealings with the court. Strong v. Friedman, 261 Ill App 602, 620 (1931). The record clearly demonstrates that Keefe did not deal with the court fairly and frankly in this case. It does not matter that no person interested in the properties as owner or mortgagee complained of Keefe’s conduct as receiver. The contempt was practiced on the court. Although Keefe’s express powers did not relate to ownership, this did not mean that he could conceal his ownership from the court when filing his final accounts. His duties as receiver required that he act fairly and frankly with the court. Instead of secretly acquiring title, Keefe was duty-bound to first inform the court of his intentions and ask its permission after serving notice on all other parties interested in the receivership proceedings. This was not done. The record discloses an intentional deception designed to conceal a serious breach of trust. Criminal contempt of court was proved beyond a reasonable doubt.

Neither do we sustain the respondent’s argument that he violated no fiduciary duties in the acquisition of the properties since he acquired title at judicial sales and not from himself during the receivership period. The cases chiefly relied upon (Victor v. Hillebrecht, 405 Ill 264, 90 NE2d 751 (1950); Melin v. Melin, 189 Iowa 370, 178 NW 346 (1920); Magic City Amusement Co. v. Hastings, 189 Okla 262, 116 P2d 709 (1941); Starkweather v. Jenner, 216 US 524, 528 (1910); and Allen v. Gillett, 127 US 589, 595-96 (1888)), all involve factual situations in which the fiduciary bought trust property for his own benefit at either a judicial sale or in the open market and the purchase was allowed because he did not have any control over the sale, he did not solicit it nor bring it about, and there was no fraud in the acquisitian. In the case at bar, the evidence is overwhelming that the fiduciary, Keefe, controlled the judicial sales by paying Jack Winkler not to attend the foreclosures and by acquiring the interests of Eager, the first mortgagee who had already instituted mortgage foreclosure proceedings and who was to be the successful bidder in Keefe’s behalf.

Fraud in the acquisition was demonstrated by the use of nominees, Eager and Carter, to conceal true ownership in the fiduciary. It is clearly demonstrated that Keefe’s personal interests as purchaser conflicted with his fiduciary interests as receiver and that he voluntarily attempted to derive personal profit from his office other than proper compensation. In Ravlin v. Chicago, A. & De K. R. Co., 217 Ill App 213, 217 (1920); affirmed 297 Ill 130, 144, 129 NE 730, 736 (1921), a receiver was ordered to pay a sum in excess of $47,000 which represented the profits from secret sales of assets entrusted to his care as receiver. The facts of this case call for a like remedy.

The respondent also asserts that Judge Julian P. Wilamowski, the judge who appointed him receiver, had full prior knowledge of his purchase of Eager’s mortgage interests and had no objection to these acquisitions. Judge Wilamowski, who had presided over the receivership proceedings for two years on temporary assignment before returning to Henry County, did write a letter to Keefe in answer to the respondent’s written request. Keefe bases his assertion upoti this letter. His reliance is misplaced. In the letter, Judge Wilamowski states that he was surprised and shocked to learn that Keefe had acquired ownership in slum properties. The jurist also indicated that if he participated in any conversation having to do with Keefe’s purchase of Eager’s mortgage interests, it would be reflected in the record. He recommended that Keefe obtain a transcript of such a record. No such transcript is found in this record. Since the respondent’s contention is not supported by the evidence, it must be rejected.

The respondent also attacks the severity of the punishment contending that the trial court had no power to order a judicial sale since the receivership proceeding did not authorize a sale; that the decree is ambiguous in that it does not provide for the resolution of any possible differences in the three appraisals to be made; that the decree imposes a double fine or hidden fine on Keefe in that it assumes that the proceeds realized from a forced judicial sale will be identical with the appraised value of the properties; that the appraisals should be made apparently as of the date of Keefe’s purchases rather than the date of the decree so as to avoid any appreciation of real estate values in the intervening three years; and that the penalty is not proportioned to the nature of the offense. While we agree with the respondent’s contention that the decree is ambiguous in that it does not provide for the resolution of any possible differences in the three appraisals to be made, we are of the opinion that, within the circumstances of this case, this factor is best left to the trial court for a final resolution. The three appraisals are not included in this record. Neither is the computation of the additional fine to be paid by Keefe. Since Keefe filed an appeal bond in the trial court, it is apparent to us that probably no appraisals have been made and the additional penalty to be paid has not yet become a liquidated amount. Rather, the parties are awaiting a final determination of this litigation on appeal. When this case is returned to the trial court for the computation of the additional penalty, it will resolve this ambiguity.

We are not persuaded by the respondent’s other contentions regarding the severity of the penalty. This is an extraordinary case requiring remedies not often invoked by the courts. It is obvious from the terms of the penalty that it was designed to punish Keefe for his contempt of court by depriving him of any profit which may have resulted from his cavalier breach of trust. It had the effect of vindicating the dignity and authority of the court. Keefe has only himself to blame for its imposition. This court will not interfere with the penalty.

The decree is affirmed.

Decree affirmed.

BURKE and McCORMICK, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Bailey, Defendant-Appellant.
    Gen. No. 53,338. (Abstract of Decision.)
    First District, Second Division.
    October 21, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in fulL


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alexander Herron, Defendant-Appellant.
    Gen. No. 52,711. (Abstract of Decision.)
    First District, Second Division.
    October 21, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Joseph C. Cowen, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Richard Zulkey and Elmer C. Kissane, Assistant State’s Attorneys, and Joseph Roddy, Special Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.