author: Mr. Justice KlingbiEl

text:
    (No. 33840
    George R. McCartney, Appellee, vs. J. Henry McCartney, Appellant.

      Opinion filed May 23, 1956.

      Frank Ryan, and Welsh and Welsh, both of Rockford, (R. T. Welsh, of counsel,) for appellant.
    Shultz, Fahy & Street, and Foltz, Haye & Keegan, both of Rockford, for appellee.
   Mr. Justice KlingbiEl

delivered the opinion of the court:

George McCartney brought suit against his brother Henry in the circuit court of Winnebago County, seeking to establish a constructive trust in certain parcels of real estate and an accounting for rents and profits. A hearing was had before the chancellor, and a decree was entered directing defendant to convey an undivided one-half interest in each of two parcels to the plaintiff, and to account for rents and profits. Defendant appeals direct to this court, a freehold being involved.

Plaintiff is 65 years of age, and defendant is ten years younger. Prior to their father’s death on July 21, 1934, Parcel 1 was owned by the parents in joint tenancy, and Parcel 2 was held by the father as sole owner. He left a purported will, but it was never offered for probate. The mother survived until 1949. About a month after the father’s death she conveyed Parcel 1 to' plaintiff and defendant as joint tenants. On March 8, 1935, defendant conveyed his interests in both parcels to plaintiff, apparently for the purpose of defeating the rights of his creditors. By deeds dated December 30 1935, title to both parcels was purportedly conveyed by plaintiff to defendant. The circumstances of this conveyance constitute the subject of dispute in this case. The chancellor found that the deeds were made with intention to' restore the former title, whereby each owned an undivided one-half. Defendant takes the position that the evidence is insufficient to overcome the presumption arising from the face of the deeds, and that the suit is barred by laches. In addition, he contends that the plaintiff was improperly allowed to amend the complaint so as to introduce a different theory of recovery, and that the complaint as amended fails to state a cause of action.

The procedural objections will be considered first. The original complaint contained two counts. Count I alleged that defendant had managed the present properties and others owned by members of the family, collecting rents and making repairs therein; that on or about December 3°> !935> defendant represented to plaintiff that for the purpose of prospective sales of other property in which the latter had an interest it would be more convenient if title to such property were in defendant; that he presented several blank forms of deed and asked plaintiff to sign them for this purpose; that relying on the intended use of the proposed deed forms plaintiff signed them; and that defendant later inserted descriptions of the present property, added his own name as grantee, caused purported acknowledgments to appear thereon, and placed the deeds on record. Plaintiff prayed that he “be decreed to be the owner of an undivided one-half interest;” and that he have an accounting and such other and further relief as to the court should seem meet. Count II incorporated substantially the foregoing allegations of Count I, and prayed that the deeds be declared void.

Count III, added by amendment after the evidence was heard, alleged that the purpose of the deeds of December 30, 1935, was to place title “in the same position as it was prior to the execution of the deeds” of March 8, 1935; and prayed that defendant be ordered to convey an undivided one-half interest to plaintiff. The court by its decree dismissed Counts I and II for want of equity, and purported to declare title in both parties as tenants in common, in accordance with the prayer of Count III. Jurisdiction was reserved for the purpose of an accounting for rents and profits.

Defendant complains that the allegations of Count III not only fail to state a cause of action but are unsupported by any proof. We agree. The material paragraphs thereof allege merely that the “purpose” of the conveyance by plaintiff to defendant was to restore title to its former “position.” There are no allegations therein of mistake, fraud, undue influence, or other recognized ground for relief, nor has plaintiff pointed tO' any evidence to support the ground attempted to be alleged. To the end that justice may be done, courts are liberal in the allowance of amendments conforming the pleadings h> the proof, but their materiality to the evidence already introduced must be apparent. McGlaughlin v. Pickerel, 381 Ill. 574, 582-583.

Defendant’s contention that the evidence is insufficient to warrant relief cannot be sustained, however. The record discloses a relationship of trust and confidence by plaintiff in defendant, and a reliance upon the latter in the management of his business affairs. In 1916 plaintiff moved away, defendant remaining at home with the father and mother. Defendant was engaged in the occupation of “real estate sales and maintenance of rental property,” and also built houses for sale. Plaintiff was employed as a factory worker, but at various times was hired by defendant to- do work on some of the properties. Defendant also- prepared plaintiff’s income tax returns, which plaintiff would sign without knowledge of the contents. Shortly after the father’s death in 1934 the mother conveyed Parcel 1 to plaintiff and defendant as joint tenants, and defendant prepared a deed purporting to- convey Parcel 2 to himself and Henry as joint tenants. The mother signed this deed also, and the parties to- this litigation forged their father’s “signature” to it. An arrangement was then made whereby defendant managed the properties and used the income for the care and maintenance of the mother until her death. The family relations continued to- be friendly and harmonious until 1953, when plaintiff asked that a “settlement” be made, defendant replied he had nothing coming, and hostility developed between the brothers.

With respect to the transaction of December 30, 1935, the plaintiff testified that defendant handed him five blank deeds and told him to- sign them; that “they were supposedly to be put on five vacant lots on Bayliss Avenue, so those could be disposed of;” that plaintiff signed them; and that he never authorized defendant to insert descriptions of the properties involved in this suit. A handwriting expert testified that more than one typewriter had been used in preparing the deeds, and that the grantee’s name had been typed with a machine owned by defendant. Defendant testified that at the time of the March 8 conveyances to the plaintiff it was agreed “he would transfer the property back to me with the understanding that I was to maintain and care for mother through her lifetime;” that plaintiff signed the deeds of December 30 “after they were made out;” and that he delivered them to defendant in April, 1936, when defendant and his mother returned from a trip to- California. It is not contended that there was any other consideration for the deeds. An attorney retained by defendant prepared them, at least in part, and certified to the acknowledgment. He testified he could not remember whether he had ever seen the plaintiff.

There is no evidence to support the chancellor’s finding that the deeds of December 30 were made with intention to restore title to its status prior to' the deeds of March 8. We think, however, the record clearly shows that the deeds resulted from presumptive fraud, if not from actual fraud. A fiduciary or confidential relationship exists where, by reason of friendship, agency, business association and experience, trust and confidence are reposed by one person in another who, as a result, gains an influence and superiority over him. (Steinmetz v. Kern, 375 Ill. 616.) The relation does not arise merely from the fact that the dominant party is a brother but depends upon all the facts and circumstances of the particular case. (Bremer v. Bremer, 411 Ill. 454; Clark v. Clark, 398 Ill. 592.) Factors to be considered, however, include the degree of kinship, as well as disparity in age and business experience, and the extent to which the allegedly servient party entrusts the handling of his affairs to the other. (Kester v. Crilly, 405 Ill. 425.) The evidence in the case at bar shows that plaintiff relied on defendant in the handling of his affairs and reposed confidence in the latter. Under these circumstances the mere existence of the relationship prohibits the party trusted from obtaining benefit or gain at the expense of the other, and a constructive trust arises in property conveyed to him where some fraud or advantage is taken in the procurement of the conveyance. (Miethe v. Miethe, 410 Ill. 226.) When the existence of the relation has been established the fraud is presumed; and while the presumption may be rebutted by proof that the dominant party has exercised good faith and not betrayed the confidence reposed in him, the burden rests upon him to produce such evidence. (Clark v. Clark, 398 Ill. 592.) Defendant has totally failed to satisfy this burden in the case at bar.

The evidence is also sufficient to show actual fraud. Plaintiff’s version of the transaction is controverted only by defendant’s testimony that “it was agreed that he would transfer the property back to me with the understanding that I was to maintain and care for mother through her lifetime.” No corroboration of such an agreement is found in the record, and defendant, in his brief, places little emphasis upon it. His principal argument is that “The legal presumption is that the deeds are what the instruments purport to be” and that “the burden is on the Plaintiff to prove by proper evidence that full title was not conveyed.”

Defendant’s contention that the suit is barred by laches is not sustained by the evidence. Defendant did not record the deeds until October 5, 1948, and November 17, 1953, respectively, and there is evidence it was not until the latter year that plaintiff discovered they had been filled in with the present descriptions. There are no fixed rules to determine what constitutes laches. Its existence depends upon whether, under the circumstances of the particular case, the plaintiff is chargeable with want of due diligence in failing to institute proceedings earlier. (Rizzo v. Rizzo, 3 Ill.2d 291, 303.) Mere delay will not bar relief where the injured party was ignorant of the fraud and filed his complaint within a reasonable time after acquiring knowledg of it. (Bremer v. Bremer, 411 Ill. 454, 468.) While it is no' doubt more difficult after this lapse of time to ascertain what transpired at the date of the conveyances, there is no indication that defendant has been prejudiced by the delay or has changed his position in reliance on plaintiff’s failure to' take action at an earlier time.

Plaintiff does not contend he is entitled in equity to the properties as sole owner, but insists the circuit court properly decreed him to be the owner of an undivided one-half. While the chancellor erred in finding an intention to restore title to its former position, in dismissing Counts I and II, and in granting leave to' amend by adding Count III, he correctly found plaintiff to be entitled to an undivided one-half interest and correctly ordered defendant to convey such interest and to account for rents and profits. The cause is therefore remanded with directions to enter a decree in accordance with the views stated herein.

Affirmed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Maxwell

license: Public Domain

text:
    (No. 33815.
    The People of the State of Illinois, Defendant in Error, vs. Hollen Hawes, Plaintiff in Error.

      Opinion filed May 23, 1956.

      George W. Kasserman, Jr., of Newton, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and J. A. Eaton, State’s Attorney, of Newton, (Fred G. Leach, Edwin A. Strugala, and Norma Eaton, of counsel,) for the People.
   Mr. Justice Maxwell

delivered the opinion of the court :

Plaintiff in error, ITollen Hawes, was convicted by a jury in the circuit court of Jasper County of the crime of assault with intent to murder and was sentenced to a term of not less than eighteen months and not more than three years in the penitentiary. He brings writ of error to- review that conviction.

The charge grew out of a fracas in which plaintiff in error, whom we shall refer to as defendant, stabbed his estranged wife in the abdomen with a pocket knife. The wife and the fourteen-year-old son of the parties, testifying for the State, and defendant, testifying in his own behalf, tell conflicting stories about the final encounter but some of the preceding circumstances are uncontradicted. Defendant and his wife had been married about fifteen years at the time of the offense charged on October 11, 1954. Although they then had four children, aged fourteen, ten, eight, and three years, their matrimonial sea had been a turbulent affair, according to defendant’s testimony, from the date of their marriage. One of defendant’s witnesses testified: “Yes, I have lived near these people for quite a while and as to whether there has been any trouble before, it was just like tying a cat and dog over a clothesline.” There had been separations and reconciliations, each of the parties had at one time filed for divorce, but as defendant stated neither case “paid no- dividends.” According to the wife’s testimony, their marital difficulties were attributable to- his excessive drinking and distrust of her. He offered no explanation.

Defendant and his wife had lived separate and apart for about a year before October 11, 1954. He was then residing with his sister and brother-in-law at Mattoon and she, with the four children, was residing in a home she had rented in the village of Willow Hill. In November of 1953 defendant had gone to his wife’s home with a shotgun, and when she ran to a neighbor’s home he followed with the gun. When told by the neighbor that she was going to call the sheriff, defendant tore the telephone from the wall. The sheriff testified that he had been called by defendant’s wife on other occasions when defendant was drunk and was “disturbing the peace,” that he was called at the time that defendant had the shotgun but “They had taken the shotgun away from him when I got there and he was arrested for tearing a telephone off the wall.” He also testified that on the same occasion he went to her home and took a butcher knife out of defendant’s pocket. The defendant said he had the shotgun because he had been hunting, and had the butcher knife because he intended to eat a cool lunch out of the refrigerator and put the butcher knife in his pocket when the sheriff came over. Three nights before October 11, defendant had gone to- his wife’s home and she refused to let him in because he had been drinking. She testified he said he was coming back and the next time he would get in. The son, Charles, testified that on that occasion he threatened to “cut her head off.” Defendant did not refer to this occasion in his testimony. Both defendant and his wife testified that on another occasion she had thrown a bucket of cold water on him.

On the evening of the stabbing, defendant arrived at his wife’s home about 7:30 P.M. He stated that he went there because he had been told that she wanted to see him about talcing care of the children while she went to- Indiana with her mother. Defendant’s wife admitted that she had talked with her mother about this and defendant’s story was verified by his mother-in-law and other witnesses. Defendant’s version of what happened, as his testimony appears in the record, is as follows:

“A. Well, I went down there on the nth. I imagine it was in the neighborhood of 7:30 and I came through the breeze-way there or whatever you call it into the back yard and my wife and the boy, the older boy, was out there at the clothesline. I don’t know whether she was taking clothes off or on the line. Actually I never noticed. I went down there with the idea tO' malee preparations to take care of the children while she went to her sister’s. She said I caused her to lose the mother’s pension. I turned around and started to walk away. I got between an out-building and a porch which had an awning on it and the bicycle— I hollered and said to Chuckie, I asked if the bicycle was still working, and didn’t get an answer and I went through the part screen door and paid wood door into the porch and there is where the accident happened. She grabbed me * * * right there and my boy struck me from over her head with a chunk of wood that took both hands to raise. Then I stuck her with the knife. I admit I did.” Defendant further testified that he was afraid they were going to hurt him and that he believed they would have beaten him to death if he would have stayed there.

The wife’s version, summarized from her testimony was that she was in the house ironing when he knocked at the door; that she went to the door and he said he had talked with her mother about his keeping the children; that she told him she had decided not to go to Indiana; that he wanted to come in and she refused; that he argued about it and got mad; that she shut the door and went about her ironing thinking he had gone; she called Chuckie to come in from the yard, he came in and said his father had sent him in to call her some bad names; that she asked him where his father was and he said “I guess he went on home.” She stated she went to lock the screen door and the defendant was standing there; another argument started, he called her names, said she wasn’t fit tO' have the kids, he was going to1 take them away from her, she kept telling him to leave, he accused her of throwing water on him and she said she would do' it again if he didn’t leave and he then said “Hot lead will stop you.” “I was trying to- get the screen door locked and he got hold of the door and he had hold of me. I thought he was going to' hit me in the face but he didn’t hit me, he cut me and I saw it. He grabbed me and was trying to pull me through the door. After he stabbed me Chuckie said ‘Daddy, don’t stab her’ and he said ‘I’ll cut her head off.’ I seen him stumble and the first I thought of was that he had stepped on that blood and stumbled, but Chuckie had hit him. That is all I know. I went back through the house and tried to- get out the bedroom door — Hoi was behind me. I don’t remember after that. I remember coming to' Madden’s, and I remember going to Madden’s. I don’t remember going to the hospital.” She further testified that there were two cuts on her hand but she didn’t know how they got there.

Charles, or Chuckie, testified his mother and father were arguing at the door, calling one another names; she told him to go home and he heard him say “hot lead would stop her.” “He grabbed hold of Mom’s shoulder. My mother didn’t have anything in her hands at the time. I don’t know whether my father had anything in his hands at the time. He was out in the dark and I couldn’t see. He just started to raise up his hand — I don’t know what he was going to do. I heard him open the knife. I never did see the knife in his hand — I didn’t see anything. I saw the blood start pouring out, she was standing beside me and started to go back to the house. After that, I hit him with a stick of wood. After I hit Dad, he started to fall down. It was a stick of wood we used for firewood. After I did that I went over to Maddens. We just told them what happened and they told us to go to- their neighbors and get him and I went over there. I didn’t see my mother hit my father at any time when they were at the door. The only time I ever heard my father threaten my mother was one Friday night when he came in and he said he would cut her head off. It was on that Friday night she was talking about.” Both the wife and son testified the defendant had been drinking, and he stated that he had been drinking “to some extent.”

All three of them went to the home of the neighbor Madden who called an ambulance and the sheriff. She was taken to the hospital and he was taken into custody by the sheriff. The doctor who' examined Mrs. Hawes at the hospital stated that she was in shock, suffering from a wound in the region of the solar plexus diaphragm which he thought was about an inch deep, maybe a half inch. He stated it was difficult to say whether it could have caused death but he believed it could have from loss of blood.

On this evidence the jury found the defendant guilty of assault with intent to murder. The defendant contends first that the evidence was insufficient to- support a verdict of guilty of assault with intent to commit murder. He argues that the circumstances that he was armed only with a pocket knife and that he could have but did not continue the assault show that the assault was committed in self defense and not with an intent commit murder. The argument that defendant was armed only with a pocket knife bears no weight. It cannot be contended that a mortal wound could not be inflicted with that kind of a weapon, and if the necessary elements of an assault with intent to murder are present the kind of weapon employed is not material. (People v. Shields, 6 Ill.2d 200.) Nor are we impressed by the argument that his failure to stab his wife a second time shows a lack of intent to commit murder. His failure to stab her the second time can as well be attributed to the fact that he was struck over the head with a piece of stove wood as to a lack of intent to commit murder.

The uncontradicted evidence shows defendant had previously threatened his wife, had followed her with a shotgun, and during one of their arguments had been found with a butcher knife in his pocket. On the occasion of this offense he had been drinking, was told to leave and did start to go away, then for some reason which he failed to explain he returned to resume the argument. If the testimony of the wife and son is believed, which the jury had a perfect right to do, the assault of the defendant upon his wife with a deadly weapon was wholly unprovoked and showed a wanton and reckless disregard for her life actuated by malice. We cannot say this evidence is so palpably contrary to the jury’s verdict that that verdict should be set aside. People v. Shields, 6 Ill.2d 200.

Defendant further contends that the court failed to properly instruct the jury as to his defense of self-defense. The court gave the following instruction tendered by the People :

“The court instructs the jury that if they believe beyond a reasonable doubt from the evidence that the defendant thrust a knife into the body of Fern Hawes as charged in the indictment with malice aforethought or with a reckless and total disregard of human life, and not in self defense as defined by these instructions and that the use of said weapon, as used by the defendant, if he did use it as aforesaid, was likely to kill the said Fern Hawes, then the said defendant may be found guilty of an assault with intent to commit murder.”

The only instruction given which referred to self-defense was tendered by defendant, as follows:

“The Court instructs the jury, that the law of self-defense is a good and legal defense and is the law of the land, and if, after carefully considering all the testimony in this case, the jury believe from the evidence that the defendant upon the occasion in question acted as an ordinary reasonable man would have acted under the same or like circumstances, it is their duty to return a verdict of not guilty on the ground of self-defense.”

The defendant argues that these two instructions do not define the elements of self-defense and that the People’s instruction advises the jury that they are to be the judge of whether or not the defendant’s act was committed in self-defense, thereby ignoring the rule that what the defendant believed as to whether or not he was in danger or such apparent danger as required the means taken for his protection, rather than what the jury believes, is the test of self-defense.

It is certainly true that defendant’s instruction fails to define the elements of self-defense. But he cannot complain of the defects contained in his own instructions. (People v. Lynn, 387 Ill. 549.) The only other instructions tendered by the defendant defining the elements of self-defense were as follows :

“The court instructs the jury, as a matter of law, that if a person while he is in a place where he has a lawful right to’ be is unlawfully assaulted and in apparent danger of his life or great bodily harm, he need not attempt to escape but may lawfully stand his ground and meet force with force even to talcing the assailant’s life.”

“The Court instructs the jury, as a matter of law, that a person attacked may stand his ground and repel force with force to' the extent of taking his assailant’s life if necessary in order to preserve his own or to protect himself from great bodily harm.”

These instructions were refused by the court and we think properly so. The first assumes that defendant was in a place where he had a lawful right to be, the second assumes that defendant was attacked. The evidence in this case does not permit of either of these assumptions. If, as a result of the court’s refusal to give these two instructions and the defects of the defendant’s given instruction on self-defense, the court did not properly instruct the jury on defendant’s defense, he should have tendered a proper instruction for this purpose. The court was not required to give instructions upon its own motion. People v. Lindsay, 412 Ill. 472; People v. Wilson, 1 Ill.2d 178.

Defendant contends that the People’s instruction here is similar to' the condemned instruction in People v. Edwards, 389 Ill. 563. There the jury was instructed “and if you further believe from the evidence beyond a reasonable doubt that such assault was not in the necessary defense of the said Homer S. Edwards * * This court held this instruction improperly advised the jury that the defendant should be convicted if the jury believed defendant’s act was not committed in self-defense. The instruction given in the instant case does not advise the jury that defendant should be convicted if the jury believes his act was not committed in self-defense. It advises them that the defendant should be convicted if his act was “not in self-defense as defined by these instructions * * Defendant’s instruction then advised the jury that “if, after carefully considéring all the testimony in this case, the jury believe from the evidence that the defendant upon the occasion in question acted as an ordinary reasonable man would have acted under the same or like circumstances, it is their duty to return a verdict of not guilty on the ground of self-defense.” If the People’s instruction was bad it was made so by defendant’s instruction, and defendant is in no position to complain of such error. (People v. Beil, 322 Ill. 434; People v. Phipps, 268 Ill. 210.) We agree with defendant’s argument that the jury was not properly instructed as to the law of self-defense, but this error is attributable to the defendant’s failure to present a proper instruction as well as to the People’s neglect to present an instruction defining self-defense as their given instruction had anticipated.

The object of review in a criminal case is not to determine whether the record is free from error but whether a just verdict has been rendered, upon sufficient competent evidence, after a trial in which no error prejudicial to defendant’s rights has occurred. (People v. Booker, 378 Ill. 334.) In the instant case the jury’s verdict was amply justified by the evidence and it was not the result of any prejudicial error.

The judgment of the circuit court of Jasper County is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    (No. 33858.
    The People of the State of Illinois, Defendant in Error, vs. Calvin Donaldson, Plaintiff in Error.

      Opinion filed May 23, 1956.

      Edmund H. Grant, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GuTknEcht, State’s Attorney, of Chicago-, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and Robert J. Smith, of counsel,) for the People.
   Per Curiam :

Calvin Donaldson, hereinafter referred to as the defendant, was one of three men jointly indicted for the murder of Ferdinand Wesley which occurred in the city of Chicago on April 13, 1954. His two alleged accomplices were apprehended and thereafter pleaded guilty to this charge. Donaldson submitted his cause to a jury trial which commenced in the criminal court of Cook County on January 10, 1955, and which resulted in a verdict finding the defendant guilty of murder and fixing his punishment at death. From the judgment and death sentence which then followed, writ of error has now been prosecuted to this court.

The record indicates that at approximately 9 ¡25 P.M. on the evening of April 13, 1954, three men entered the Match Box Tavern located at 770 Milwaukee Avenue, Chicago, and announced that it was a “stick-up.” Thereupon, one of the three men produced a gun, and during the events which followed, fired one shot which wounded the owner and bartender, Bernard Dorenfest, and killed Wesley.

The bartender, Dorenfest, was the only eyewitness who testified in this case. He stated that he was tending bar on the evening in question when the trio entered from Milwaukee Avenue and announced the robbery. The armed bandit, whom he identified as the defendant, then walked behind the bar and said "I am going to get myself a white * * * man to kill somebody over here.” Thereupon, according to Dorenfest, the defendant and his accomplices ordered the tavern customers, approximately ten in number, to the rear of the building and then proceeded to open the cash register and take its contents. Once this had been accomplished, the bandits demanded to' know where the “good whiskey” was, and after it was pointed out, the two unarmed members each left the tavern carrying a case of the liquor. At that point, said Dorenfest, the defendant walked towards him, aimed, and fired one shot in the direction of his head. Dorenfest put up his hands to protect himself, and as he did so, the bullet pierced his hand and shoulder, and struck Wesley, killing him almost instantly. On cross-examination, the bartender admitted that he was not certain which of the bandits first entered the tavern and produced the gun but was positive that Donaldson was present and did the shooting. He further stated that upon being released from the hospital following the robbery, he identified the two accomplices at a police “lineup” and also recognized Donaldson’s picture from about a dozen that had been furnished him for that purpose. Dorenfest also- admitted that the first time he had seen the defendant since the shooting was at the time of trial, but was somewhat evasive as to whether or not Donaldson had been pointed out to him in that instance.

John McNally, a Chicago police officer, testified that his department was notified by the New Orleans police department on June 30, 1954, that Donaldson was in their custody, and that he and another officer proceeded to New Orleans to pick up the prisoner. Upon arriving, they talked to the defendant but were informed that he did not wish to make any statements. However, according to McNally, on the return trip to Chicago, the defendant said: “I was in on the robbery when another man handed me a gun, the gun went off accidentally.” This witness also stated that he was present when Donaldson was questioned concerning the crime and when Dorenfest identified the defendant’s photograph.

Robert Garrou, another police officer, testified that he was on duty during the evening in question and about 9:30 P.M. received a call that there was a shooting at the Match Box Tavern. He immediately proceeded to the scene of the crime and found the bartender bleeding from his shoulder and hand. The deceased was lying face down upon the floor and there were three other people in the establishment at that time. During his testimony, Garrou was asked whether a photograph, marked as People’s exhibit 1, gave a true representation “of the appearance of the head of the man that you saw on the floor on April 13, 1954, in the tavern at 770 N. Milwaukee Avenue,” to which he replied, “It does. It seems a little swollen up since then, though.” Thereafter the exhibit was received in evidence.

The State then called Joseph Tournier, who testified that he was a shorthand reporter for the Cook County State’s Attorney’s office, that he was present at the detective bureau at 5 :oo A.M. on the morning of July 4, 1954, when a Calvin Donelson was interrogated by assistant State’s Attorney Ferlic, that he took and transcribed the conversation that there took place, that it was the same as was contained in a 57-page unsigned statement marked as People’s exhibit 2, but that he did not know whether the man who answered the questions was the defendant nor would he recognize this man if he saw him again.

At the court’s suggestion, John McNally was recalled tO' the stand to testify that the defendant was in fact the one who' had been interrogated. He stated that he was present at the questioning and that the man who answered the questions was sitting in the court room, “the second man from the left.” At that point, the typewritten statement was received in evidence over defendant’s objection.

For the defense, Donaldson testified that his home was in New Orleans but that he had come to Chicago some years ago and had served a prison term at Joliet for armed robbery. He stated that he left Chicago to visit a brother in Nashville, Tennessee, on April 12, 1954, and arrived in Nashville on April 14. From there he later went to Cairo, Illinois, and then to New Orleans. Donaldson denied, however, that he took part in the robbery or that he had made the statements attributed to him and contained in People’s exhibit 2.

Frank Ferlic, an assistant State’s Attorney who was called as a rebuttal witness by the prosecution, stated that he was present at the instant interrogation and that the defendant was the same person who made the statements contained in People’s exhibit 2.

As grounds for reversal, the defendant first contends that the trial court erred in admitting People’s exhibit 1 because of its inflammatory character. He argues that the parties had already stipulated that if the chief pathologist for the Cook County coroner were called he would testify that he examined the body of one Ferdinand Wesley at the county morgue and that the cause of death was “a bullet wound of entrance in the left side of the face, 5 cm. from the midline at the level of the nasolobial fold, causing a perforation or fracture of the maxilla, first and second cervical vertebrae and laceration of the spinal cord,” and for that reason, the photograph had no probative value but was used merely to arouse prejudicial emotion. With this we cannot agree. Here the exhibit was proper not only to give the jury a better understanding of the medical terminology but also to aid them in determining the manner in which the wound was inflicted. Donaldson, being 5 feet 8 inches tall, had contended that the shot was fired by a man at least 6 feet in height, and therefore, on cross-examination of Dorenfest, the defense attorney attempted to show certain discrepancies concerning the infliction of the fatal wound by questioning the witness about the relative positions of both himself and the decedent and about the path of the bullet itself. That this interrogation was somewhat successful is shown by the fact that the trial judge, in passing upon the exhibit’s admissibility, commented: “As a matter of fact, counsel, your cross-examination even developed some inconsistency about the range of the bullet.” Since much of this testimony was demonstrative and could not be completely expressed by the record, and since the trial judge was in a much better position to ascertain its impact than a court of review, this remark takes on added significance. Furthermore, since the medical testimony as to identity of the decedent and his cause of death was based solely upon an examination conducted at the morgue, and since the police officer who identified the photograph saw the body at the scene of the crime, the exhibit was proper to connect these two identities. It is our opinion that the trial court did not err in admitting the photograph in evidence.

The defendant also contends that prejudicial error resulted from the bringing of evidence as to his morals and other unrelated offenses into the record by means of exhibit and argument to the jury. People’s exhibit 2 is a 57-page unsigned confession which allegedly covers, in great detail, the planning of the robbery in question, the names and addresses of the participants, the commission of the crime itself, defendant’s flight to escape prosecution, and his subsequent arrest in New Orleans. In addition, it covers many facts concerning the defendant’s personal life as well as his implication in other criminal acts. For example, defendant allegedly answered the following questions concerning a stop he made in Cairo, Illinois, before leaving for New Orleans:

“Q. Who did you see in Cairo?

A. Boy named Vinson.

Q. Is that his first name or last name ?

A. His last name.

Q. ITow long have you known Vinson?

A. About seven or eight months.

Q. Had you met him in Chicago?

A. Yes, sir.

Q. You knew him in Chicago?

A. Yes, sir.

Q. How many stick-ups was he with you?

A. One.

Q. Where was that stick-up ?

A. I don’t know the name of the street.

Q. Was it before the shooting or after the shooting?

A. After the shooting.”

As to his personal life, defendant allegedly made the following statements:

“Q. Are you a married man?

A. I was.

Q. Separated or divorced?

A. Separated.

Q. How long have you been separated ?

A. Since first of ’53.

Q. You have been separated better than a year, isn’t that right?

A. Yes.

Q. Who were you living with in Chicago ?

A. On Adams ?

Q. Yes.

A. I was living with Ernestine Webbs.

Q. Is that a girl ?

A. Yes.”

and also said:

“O. Where did you and your girl friend go?

A. Went home.

Q. What address ?

A. 2105 Adams.

Q. Were you and she living together?

A. Yes, sir.

Q. Did you have a room together ?

A. Yes, sir.”

In his closing argument, the attorney for the State advised: “* * * when you consider the manner of this defendant you should also consider the fact that this defendant has been convicted of armed robbery. He has already served time in the penitentiary for robbery with a gun. Evidently that is his profession.”

Evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent and prejudicial, (People v. Rivas, 5 Ill.2d 556; People v. Kosearas, 408 Ill. 179; People v. Polenik, 407 Ill. 337; People v. Pazell, 399 Ill. 462; People v. Mangano, 375 Ill. 72; People v. Deal, 357 Ill. 634; People v. Stark, 324 Ill. 289; People v. Spencer, 264 Ill. 124; People v. Schultz, 260 Ill. 35,) and where such irrelevant material is contained in an otherwise competent statement or confession, such material must be deleted before the confession is presented for jury consideration, unless to do- so would severely impair the latter’s evidential value. (People v. Lane, 300 Ill. 422; People v. Spencer, 264 Ill. 124.) Although proof of a prior conviction may be offered to discredit the testimony of the accused, (Ill. Rev. Stat. 1953, chap. 38, par. 734,) this can be done only by the introduction of the prior record itself and not by cross-examination or other testimony, (People v. Kosearas, 408 Ill. 179; People v. Halkens, 386 Ill. 167,) and, in no- event, may the prosecuting attorney comment upon facts or evidence which would be otherwise inadmissible. People v. Lettrich, 413 Ill. 172; People v. Black, 367 Ill. 209; People v. Davis, 362 Ill. 417; People v. Dabney, 315 Ill. 320; People v. Hamilton, 268 Ill. 390.

Whether or not the defendant had been separated from his wife and whether he was engaged in adulterous relations with another woman were completely immaterial to the issues at hand as was the interrogation concerning his criminal activities with Vinson. The latter was especially unwarranted when we consider the form of the question, “How many stick-ups was he with you?” From this phrasing, it could be inferred that Donaldson had been involved in many such crimes even though Vinson was along only on one occasion. Although perhaps inadvertently, this is the exact point emphasized by the assistant State’s Attorney when he said “Evidently that is his profession.” The defendant admitted of his own accord that he had served a penitentiary sentence for armed robbery and such would have been a proper subject of comment if restricted to' his credibility. (Ill. Rev. Stat. 1953, chap. 38, par. 734.) However, it was in no way applicable when considering his habits or customs. Furthermore, the fact that Donaldson had been once convicted of robbery did not warrant the conclusion that such was his "profession.” It is our opinion that error resulted from the bringing of such matters into the record.

Nevertheless, the State argues that proof of guilt in the present case is so overwhelming that no other verdict could have been reached, and even though some error may have intervened, it is not so prejudicial as to warrant reversal upon those grounds. Although such a principle may be sound in certain instances, (People v. Stephens, 6 Ill.2d 257; People v. Anderson, 337 Ill. 310; People v. Stark, 324 Ill. 289; People v. Lewis, 313 Ill. 312,) it is not applicable to- the facts of the present case. Here, the bartender testified that approximately ten customers were in the tavern at the time of the shooting; the police officer who first arrived upon the scene stated that he then counted three customers still present; and the two alleged accomplices had confessed and were awaiting sentence at the time of trial. Yet, not one of these persons was asked to testify, nor was their absence in any way explained. Dorenfest, the only eyewitness who took the stand, was himself somewhat confused as to the events which immediately preceded the shooting and the manner in which the defendant was identified. The foundation necessary for placing the confession in evidence also left something to be desired.

It must be remembered that the jury in the present case not only determined the question of guilt but also passed upon the turpitude of the crime by fixing the punishment itself. Although it is impossible to determine the exact effect that such improper material may have had upon the minds of the jurors, inferences of immorality and prior criminal behavior could quite reasonably be expected to arouse a certain degree of animosity, and in this case, such inferences may have resulted in the refusal of leniency and infliction of the extreme penalty of death. Every defendant, be he a sinner or a saint, has the right to expect that his fate will be fixed with reference only to- the circumstances of the crime with which he is charged. (People v. Black, 317 Ill. 603; People v. Lane, 300 Ill. 422.) It is pur opinion that Donaldson did not receive the fair and impartial treatment to which he was entitled, and that justice can best be served by remanding this cause to the lower court for a new trial.

Other errors have been assigned by this defendant but they are of such a nature that it is not probable that they will occur upon retrial, and tO' elaborate upon such points at this time would serve no useful purpose. For the reasons stated, the judgment of the criminal court oí Cook County is reversed, and the cause is remanded tO' that court for a new trial.

Reversed and remanded.


author: Mr. Chief Justice HershEy

text:
    (No. 33859.
    The People of the State of Illinois, Appellee, vs. 123 Punch Boards et al.—(Harry A. Cassiday, Appellant.)

      Opinion filed May 23, 1956.

    Taylor F. WilhElm, of Mendota, for appellant.
    Latham Castle, Attorney General, of Springfield, and Calhoun W. J. Phelps, State’s Attorney, of Princeton, (Fred G. Leach, Edwin A. Strugala, and Donald F. Blodgett, of counsel,) for the People.
   Mr. Chief Justice HershEy

delivered the opinion of the court:

The State’s Attorney of Bureau County filed a petition in the county court to have certain property declared contraband and to have it destroyed or confiscated. The property consisted of 123 punch boards, two Western Union teletype machines, two pinball machines, $682 and $2706.99 of United States currency, and $398.89 of negotiable checks or bank drafts. After a hearing, the court ordered part of the property destroyed and the balance confiscated.

The appellant, Harry A. Cassiday, the owner of the property, appeals directly to this court, presumably on the theory that a constitutional question is involved. Appellant’s “Points and Authorities” and “Argument” are confined to a single issue: namely, whether the county court had jurisdiction of the subject matter. In this regard, he cites the statute which limits the jurisdiction of county courts to' cases where the amount claimed or the value of the property in controversy does not exceed $2000. (Ill. Rev. Stat. 1955, chap. 37, par. 177.) The value of the property here declared contraband being more than $2000, it is urged that the county court was without jurisdiction in the case. But this presents a problem of statutory construction only, no constitutional question being involved. And since this is the sole argument advanced in his original brief and since new points raised for the first time by reply brief will not be considered, all other allegations of error are deemed waived. (Supreme Court Rule 39; Ill. Rev. Stat. 1955, chap. 110, par. 101.39; People ex rel. Frailey v. McNeely, 376 Ill. 64, 70; County of Du Page v. Henderson, 402 Ill. 179, 190.) Accordingly, there is no basis for direct appeal to this court.

The cause is transferred to the Appellate Court, Second District.

Cause transferred.


author: Mr. Justice Davis

text:
    (No. 3864.
    The People of the State of Illinois, Defendant in Error, vs. Charles Baker, Plaintiff in Error.

      Opinion filed May 23, 1956.

      Richard H. Devine, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GutknEcht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. Justice Davis

delivered the opinion of the court:

The defendant was found guilty of the crime of armed robbery by a jury in the criminal court of Cook County ; the court overruled his motion for a new trial, denied his application for probation, and sentenced him to serve a term of not less than two years nor more than six years in the Illinois State Penitentiary. He prosecutes this writ of error to review the judgment of the trial court, assigning and arguing the following reasons for reversal: (1) that the evidence did not establish the guilt of the defendant beyond a reasonable doubt because the identification of the defendant was doubtful, vague and uncertain, and the testimony of an accomplice was unworthy of belief; (2) that the court erred in failing to inform the jury that John Delbert was a court’s witness and that defendant was not vouching for his truth and veracity; (3) that the court erred in permitting the cross-examination of Delbert concerning his conviction of other crimes; (4) that the court erred in allowing Delbert to be impeached on immaterial and irrelevant matters to the prejudice of the defendant.

The first two assignments of error have been waived. The defendant filed a motion for a new trial containing nine specific written assignments of error, none of which raised either the question of the legal sufficiency of the evidence, generally or in the particulars urged here, or the failure of the court to inform the jury that Delbert was a court’s witness. Where the grounds for a motion for a new trial are stated in writing, a reviewing court is limited to a consideration of the errors alleged in the written motion and all other errors are deemed to have been waived. (People v. Cosper, 5 Ill.2d 97; People v. Brand, 415 Ill. 329, certiorari denied, 347 U.S. 949; People v. Thompson, 406 Ill. 555; People v. Bindrin, 404 Ill. 532, certiorari denied, 339 U.S. 939.) We note, moreover, that the defendant offered no limiting, qualifying or cautionary instruction as to the status of a court’s witness. He could have tendered such instruction in this case, but failed to do so; and he cannot now fairly object that it was not given. People v. Levine, 342 Ill. 353; People v. Lawson, 328 Ill. 602.

Thomas Casey, an inmate of the reformatory for boys at Sheridan, Illinois, and a witness for the State, testified that Ronald Dudak, as driver of the automobile in question, the defendant Baker, John Delbert and himself were riding around and formulated plans for a “stick-up”; that he chose the President Hotel in the city of Chicago as the place for the crime; that Dudak parked the automobile on Cleveland Street and there remained while the defendant, Delbert and himself committed the robbery in said hotel; that after the robbery the three ran back to the parked automobile which Dudak drove from the vicinity; and that the money was placed in the glove compartment of the automobile and was later divided evenly between the four.

The court, at defendant’s request, called John Delbert, who was also- an inmate of the reformatory at Sheridan, as a court’s witness. This witness was cross-examined extensively by counsel for the defendant and the State’s Attorney. He testified in substance that defendant was with him, Dudak and Casey, in Casey’s automobile, from early evening on June 24, 1953, until sometime in the morning on June 25, 1953; that when they drove to the President Hotel, defendant was dopey or sleepy and did not get out of the car; that defendant’s condition was apparently due to the fact that he had been drinking early in the evening; that defendant did not participate in the division of the money or receive any part of it. On cross-examination by the State’s Attorney and without objection by defense counsel, Delbert related that he had been convicted of other infamous crimes, one of which was the robbery of an individual on June 25, 1953, the date of the robbery at the President Hotel. He was also cross-examined as to whether either Baker or himself got out of the car at any time or place before arriving at the hotel in question. He finally related that he had gotten out of the car on about four occasions and that Baker had been out of the car on one occasion when they stopped to get some hot dogs and at another time to go to the washroom in the Haliburton Hotel because he (Baker) was sick. Delbert denied that Casey, Baker and himself got out of the car together at the Haliburton Hotel, even though confronted with his contrary, prior statement. Defendant contends that this cross-examination was highly improper and prejudicial because its effect was to link Baker with crimes other than the crime for which he was on trial.

While a defendant may be impeached on the ground of his prior conviction of other infamous crimes only by introduction of the records of such prior convictions, a witness, not the defendant, may be cross-examined as to his prior conviction of other infamous crimes to impeach his credibility. (People v. Roche, 389 Ill. 361; People v. Halkens, 386 Ill. 167.) We find that this line of cross-examination was proper.

Likewise, the cross-examination concerning the defendant’s actions on the night in question was proper. The defendant had testified that he became unconscious while riding around in the automobile at about 9:30 in the evening and that he remembered nothing until he awakened sometime after 2:3o in the morning; that his condition was due either to drinking or to an epileptic seizure; that he had not been out of the automobile during the course of the evening and had not participated in the robbery at the President Hotel or a division of the money. He was corroborated in many respects by the witness Delbert. The issue thus presented was whether defendant had been in an unconscious or semi-conscious condition during the period of time when the robbery took place and for a considerable time prior thereto, as stated by the witness Delbert and defendant, or whether, as the State’s witnesses related, the defendant was able to- and did get out of the automobile on various occasions and did participate in the robbery at the President Hotel. It was therefore competent for the State to establish by the cross-examination of Delbert that defendant was in possession of his faculties and had been out of the automobile during the course of the evening and prior to the time of robbery charged in the indictment. It was also- proper to cross-examine Delbert concerning the occasions when he had been out of the automobile in order to test his recollection of events and determine whether, during the time mentioned, he had been with the defendant and had observed his condition.

We have carefully examined the record and find nothing in the questions asked of Delbert or the answers given by him which tended to implicate the defendant in any crime other than that for which he was on trial. We find no error in this respect. We further note that the record shows that the trial judge, out of the presence of the jury, admonished Delbert to say nothing which would in any way involve the defendant in other crimes.

The State called Eugene Precin, a statement reporter for the State’s Attorney’s office, to show that on a prior occasion, Delbert had made certain statements concerning the defendant’s actions on the night of the robbery which were inconsistent with his testimony at the trial. Defendant contends that this impeachment of Delbert was upon immaterial and irrelevant matters and constitutes prejudicial error. We have held that it is improper to impeach a witness on an immaterial statement. (People v. Dascola, 322 Ill. 473; People v. Decker, 310 Ill. 234; People v. Israel, 269 Ill. 284.) The State’s Attorney concedes this to be the rule, but contends that the statements on which Delbert was impeached were relevant and material. We agree.

A careful review of the entire record leads us to conclude that defendant received a fair trial free from substantial prejudicial error, and that his conviction was justified and should be affirmed. The judgment of the criminal court of Cook County is affirmed.

Judgment affirmed.


author: Mr. Justice Daily

text:
    (No. 33883.
    Luemma Hill, Appellant, vs. Curtis E. Bowen.—(Clifford W. Schaeffer, Exr., et al., Appellees.)

      Opinion filed May 23, 1956.

      Frank W. Byrns, of Rushville, and Galbraith & BaymillEr, of Peoria, for appellant.

      Arnold & Arnold, of Rushville, and Penicic, WoolEYhan & Nielson, of Quincy, for Appellee.
   Mr. Justice Daily

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Brown County which found that appellant, Luemma Hill, had made a gift of certain real estate to Curtis E. Bowen and dismissed for want of equity her complaint to partition the same. Bowen died subsequent to the filing of the master’s report in the cause and it is the executor and devisees under his will, as substituted defendants and counterclaim-ants, who are the appellees in this court.

The facts which appear in the record show that Bowen was a lodger in the home of appellant’s parents at Mt. Sterling, Illinois, and, during 1944 and 1945, was engaged to be married to appellant. Toward the end of 1944 a business called the East End Grocery Store was up for sale and Bowen offered to- advance appellant the funds with which to buy it, telling her the loan could be repaid out of the profits. Accordingly Bowen loaned appellant $584 and she purchased the business on January 15, 1945; on December 4, 1945, appellant repaid Bowen $292, but made no further repayment. Thereafter, on January 20, 1947, appellant purchased the real estate on which the store building was located, and constructed a new building thereon, all with monies arising from the operation of the grocery store. Title to the real estate was taken in appellant’s name.

For the years 1945 and 1946, appellant accounted for all income from the store in her income tax returns. Likewise, during the years 1945 through 1947, the store was registered in appellant’s name for sales tax purposes. Aside from the implications arising from the fact that appellant purchased the business with funds loaned by Bowen, the first evidence appearing in the record as to a partnership was that a partnership income tax return was filed at the beginning of 1948. There was no evidence, however, that it reported partnership income for the full year of 1947, nor was there an affirmative showing that the partnership was in existence on January 20, 1947, when the real estate was purchased. Subsequent to the beginning of 1948 the parties shared equally in the income and taxes on the business, partnership income tax returns were filed through the year 1953, the store was registered as Bowen and Lucas (appellant’s maiden name) for sales tax purposes, and store records were kept on a partnership basis. On April 10, 1951, appellant conveyed to Bowen an undivided one-half interest in and to the real estate upon which the store was located. According to appellant, who was the only person to testify concerning the transaction, the conveyance was made to relieve her from Bowen’s constant demands that he be given one half the real estate.

It is to be gathered from the record that the personal relationship of appellant and Bowen became altered at some period after the operation of the store began. In any event, on December 31, 1953, appellant caused a notice to be drawn to the effect that her partnership with Bowen would be dissolved as of January 1, 1954, that she was retiring, and that Bowen would thereafter continue the business. Some 20 to 30 of such notices were sent out to wholesalers with whom the firm did business. Subsequently, on February 18, 1954, appellant married another and left Mt. Sterling on February 25, 1954. She did not talk with Bowen between the time of the wedding and her departure but, on the day last named, caused her sister to deliver the following handwritten message to him:

“CURT — In order to avoid any unpleasant words I am writing this letter to tell you I am going away — I’m sorry to have to tell you this way — It would be so much nicer to talk it over with you— You can tell people whatever reason you wish for my leaving— I appreciate your thoughtfullness and consideration in the last few months but I know that you have been miserable most of the time because of all the running in and out and so forth. The store; this includes stock and fixtures, has been changed over to you. Eugene Rose will explain any details that you do not understand. He has the records and will tell you what to do. The G.M.C. and Chevrolet are also yours; and the payments on the tin shop. The tin Shop money, car Insurance papers are in the cedar chest. I think you will find everything in order. I certainly hope so The store is all yours — to operate, rent, sell or do as you please.
Good Luck
Luemma
Please don’t have too many hard feelings I have done what I thot best for everyone. I will be perfectly all right. The Household goods are also yours to do with as you please — I know you will make a success of the store because you have a lot of friends.
The store, car, and cedar chest keys are under the clock on the radio.”

Appellant’s complaint alleges that Bowen took exclusive possession of the partnership books, assets and real estate on February 19, 1954; however, this is denied by Bowen’s answer. The only evidence which tends to show that he did take possession was the testimony of an insurance agent who related that Bowen, on March 25, 1954, requested changes in the name of the insured from appellant and himself, to himself alone, in policies covering business vehicles, stock and equipment, and the building. The latter policy, it appears, was not changed over until June 9, 1954, after this suit was commenced, and in this regard the same witness stated appellant continued to carry insurance on the building after the joint policy had been cancelled. It was also shown that Bowen had paid the 1953 real estate taxes, while this cause was pending.

On April 25, 1954, sixty days after the delivery of the writing set forth above, appellant filed the complaint in this cause praying for the dissolution of the partership and for the partition of the real estate, alleging that she and Bowen owned the said real estate in equal shares. On this appeal appellant has abandoned her claim for a dissolution of the partnership, conceding, as the master and chancellor found, that she had made a valid and irrevocable gift of all business personal property to Bowen. Insofar as partition of the real estate is concerned, Bowen’s answer denied all the allegations of the complaint and as alternative affirmative defenses he alleged: (1) That no partnership agreement had ever existed and that the grocery business, together with its stock, fixtures and real estate, was purchased with his money and was his sole and exclusive property; or (2) That the real estate was partnership property, and therefore personal property, and passed to him by gift as a part of the business personal property. For counterclaim Bowen alleged that appellant had made him a gift of the real estate but, in making it, had failed to- comply with the law pertaining to' transfers and conveyances, thus causing her intent not to have been fully effectuated according to law. The counterclaim concluded with a prayer that appellant be directed to execute a deed conveying to Bowen the undivided one-half interest in the real estate which had been the subject of her gift. Appellant denied the foregoing allegations and affirmatively pleaded that she neither gave nor intended to give Bowen her interest and that the Statute of Frauds bars him from any right to her interest in the real estate. When testifying as a rebuttal witness appellant stated: “If it might be said that I intended to give him the real estate, I here and now revoke that gift.”

The master, who heard the evidence in the cause, found that the grocery business was the sole property of appellant at its inception, that the real estate was purchased with monies arising from the business; that nO‘ partnership agreement existed when the real estate was purchased; and that the said real estate was not partnership property or an asset of the partnership. He concluded that the evidence did not sufficiently or satisfactorily establish Bowen’s claim to sole ownership, or a right to specific performance, and recommended that appellant’s prayer for partition be granted. The chancellor, however, sustained exceptions to the report of the master and made the somewhat inconsistent findings: (1) that Bowen had furnished the purchase price for the real estate and was its sole proprietor, and (2) that appellant intended to and did give Bowen all interest she had in the said real estate, as a partner or otherwise. Thereafter the chancellor dismissed appellant’s complaint for want of equity, granted the prayer of the counterclaim, and directed appellant to execute a deed conveying to- appellees the property which had been the subject of her gift. This appeal has followed.

Before proceeding to a consideration of the principal issue presented in this court it is apparent, both from the finding of the chancellor and from appellees’ argument in this court, that a complete disposition of the cause necessitates some consideration of the affirmative defenses pleaded by Bowen. Although appellees disavow any theory of a trust, the affirmative defense that Bowen had furnished the purchase price of the real estate and was the sole owner even though title was taken in appellant’s name, is, in effect, a claim to a resulting trust in the land by operation of law. (See: Scanlon v. Scanlon, 6 Ill.2d 224, 229-230; Bowman v. Pettersen, 410 Ill. 519, 523-524.) It is a principle long established, and reiterated in the cited cases, that the burden of proof is upon the party seeking to establish a resulting trust and that the evidence, to' be effective for such purpose, must be clear, convincing and unmistakable. Here Bowen offered not one iota of proof to establish his claim that he had furnished the purchase price for the land. On the other hand, appellant testified without contradiction that she purchased the real estate with monies arising from the operation of the business, and further testified to facts fairly tending to show that the purchase was made at a time when she was the sole proprietor of the business. Clearly, therefore, Bowen did not meet the burden of proof required to sustain his affirmative defense. Lacking clear or convincing support in the record, the finding of the chancellor that the real estate had been purchased with Bowen’s money and was his sole property, was erroneous as being manifestly against the weight of the evidence.

We likewise find that the affirmative defense founded upon the premise that the real estate was partnership property has no- clear or convincing support in the record. Again on this issue Bowen neither testified nor offered proof of any nature, either directly or in rebuttal. Appellant, on the other hand, testified that she had purchased the real estate on January 20, 1947, with monies arising from the business and at a time when she was the sole proprietor of that business. The only evidence which tends to' suggest that a partnership existed prior to 1948, was appellant’s testimony that a partnership income tax return was filed early in 1948 to report the 1947 income of the business. We agree with the master that, in the absence of affirmative proof, such fact is by no means conclusive that a partnership existed on January 20, 1947, when appellant purchased the real estate. Had this been so, we think it reasonable to assume that title would have been taken in the name of the partners. On the state of the record, therefore, it cannot be said with any certainty that the real estate was purchased with partnership funds, or that Bowen sustained his burden of proving that such was the case. We conclude that the master was correct in concluding that appellant and Bowen were, at the time the cause was heard, each the owners of an undivided one-half interest in the real estate, and that such real property was not an asset of the business.

This brings us to the principal issue raised by this appeal, namely, the question of whether, as the chancellor found, appellant made a gift to Bowen of her undivided one-half interest in the real estate by virtue of the letter she caused to be delivered to him. Appellees make no claim that the writing is a deed but contend that it is complete evidence of a valid inter vivos gift of real estate, which is irrevocable and which will be recognized and enforced in equity. For appellant it is urged alternately that the terms of the writing do' not show a clear intention of appellant to make a gift of the real property, that at best it merely evidences an incompleted gift that equity will not perfect, and that if the writing be construed as making a gift of the real estate, then such gift, in the absence of a formal conveyance, is revocable.

Appellees’ position is almost completely founded upon the case of Barnes v. Banks, 223 Ill. 352. In that case a father delivered the following writing to his daughter:

“Mrs. Hallie Banks — I present you on this your 33d birthday with the house and premises now occupied by you, which includes the garden and orchard back of the house and the pasture north of the house, more fully described in my last will, in the forty-acre tract with other lands.
“Very truly your father,
A. G. Barnes.”
June 4, 1902.

Two years later, in 1904, the father died testate and by the terms of his will, which had been executed in 1900 prior to the delivery of the instrument above, he devised the 40 acres referred to in trust. with directions that the trustees pay the income therefrom to his daughter Hallie for life, that they permit her to make her home thereon and to farm it, and that, upon her death, it be conveyed to her child or children. The trustees refused to recognize the written instrument as a conveyance and inventoried the property as a part of the estate. At this the daughter filed a bill to construe the instrument and prayed that she be declared the owner in fee of the entire 40 acres as a result thereof. The circuit court of Christian County found that the father intended to and did convey the entire 40 acres to his daughter by the instrument, that the daughter had occupied the premises from that time on, and that she had made valuable and lasting improvements thereon. On appeal, this court construed the instrument as being limited to the particular portions of the 40 acres mentioned, i.e., the house, the orchard and the pasture, and, although it was concluded that the donee had not made lasting and valuable improvements, it was held that the premises described in the written instrument were a gift to the daughter from her father, that the gift was absolute and irrevocable, and passed title in the premises to the daughter. Appellees argue that the writing or letter in the instant case commands a similar result. We, however, find no compelling similarity either in law or in fact.

Considering first the factual aspects, it is to be noted that the court, in approaching the problem of the Barnes case, said, (p. 361) : “The validity of this instrument and the nature and extent of the estate conveyed by it depend upon whether the father of appellee intended it was a gift to her.” That the criterion is the same today is demonstrated in the recent case of In re Estate of Schneider, 6 Ill.2d 180, 187, where it is said: “To- establish a gift, the proof must be clear and convincing, * * * and the burden is upon the alleged donee to establish the existence of a donative intent.” In the Barnes case the court found the intention of the father to make a gift to his daughter was resolved by several facts and circumstances over and above the language of the letter he had written. Among them was the proof that the father had stated to> third persons either that he had given his daughter the place where she lived, or that he was going to deed it to her. The existence of the father’s will at the time of the gift was also construed as showing a donative intent, for the court said (p. 360) : “He must have intended to give his daughter some right and interest in the land she had not possessed and enjoyed before, and it must have been an interest or estate different from that given her by the will.” Other circumstances commented upon by the court in determining the existence and extent of the gift were: (1) that the father had never attempted to revoke the gift; (2) that the words “I present you * * * with the house and premises” were the equivalent of “I now give you the house and premises,” and (3) that the father was the owner of considerable real estate and experienced in conveyances.

Similar proof or circumstances are not found in the record before us. Appellee’s sole evidence of a donative intent is the letter appellant caused to be delivered to Bowen. There are few, if any, extraneous circumstances which could be construed as evidencing an intention to make a gift and, by way of contrast with the Barnes case where the father’s letter appears to have been a studied effort delivered on the happy occasion of a birthday, the letter of appellant appears to have been hastily contrived at a time of great emotional stress. There are also marked differences in the language of the letters. In the present case there are no terms which compare with the directness of the words “I present you * * * with the house and premisesneither is there a conclusive or detailed description of the subject of the alleged gift. Appellees contend, however, that a donative intent with regard to the real estate may be derived from four phrases of appellant’s letter which, in the order of their appearance, are as follows : (1) “The store; this includes the store and fixtures, has been changed over to you”; (2) “I think you will find everything in order. I certainly hope so”; (3) “The store is all yours — to operate, rent, sell or do as you please”; and (4) “I know you will make a success of the store because you have a lot of friends. The store, car, and cedar chest keys are under the clock on the radio.” Whether considered singly or collectively, we do not think such phrases can be considered as clearly and convincingly showing an intention to make a gift of appellant’s interest in the real property. In her first use of the word “store” it is manifest appellant had no reference to the real estate for she had done nothing to “change it over” to Bowen. When her previous transactions concerning the purchase of the land and the conveyance of an undivided one-half interest to Bowen are considered, appellant must have known she would have to execute a deed to accomplish a change of ownership. This she did not do. When it is further considered that the evidence shows the parties did not treat the real estate as partnership property, and that appellant herself once operated the store without owning the real estate, we think her reference to “the store” throughout the letter referred only to the business and its assets, and not to her interest in the real estate.

Appellees argue that the use of the word “rent” in the third phrase, is consistent only with real estate, and say that one could scarcely rent a stock of groceries. As to the latter argument, it can also be observed that one could scarcely “operate” either a stock of groceries or a tract of land; as to the former, the rental of personal property is as commonplace as the rental of real property. The arguments advanced, we believe, serve only to emphasize that the terms employed in appellant’s letter do not serve to prove a donative intent with respect to the real estate with the clarity and conviction that is required.

Apart from the shortcomings of appellees’ evidence on the question of intention, it is our opinion that no equities have been shown sufficient to take the alleged gift out of the Statute of Frauds. Upon the authority of Ashelford v. Willis, 194 Ill. 492, the following general statement appears in the Barnes case at page 361; “A conveyance of land, to be good at law, must be by deed under seal, but in equity a good title may be conveyed by a writing not under seal, or without any writing whatever.” Appellees appear to conclude from such statement that equity will in all instances recognize a conveyance by parol or by an instrument not under seal. Further examination of the Ashelford case reveals, however, that the general rule is subject to further qualifications, for the court stated (p. 502) : “The rights of the parties depend upon the character and extent of performance and the effect upon the donee by allowing repudiation. Practically all the writers on equity jurisprudence are agreed that contracts not under seal, and even contracts not in writing affecting or concerning an interest in land, are recognized in equity, if they have been so far performed that to permit a party to' repudiate them would of itself be a fraud, — and this court is committed to that doctrine.” That these early observations of our court represent the modern view may be gathered from 24 Am. Jur., Gifts, sec. 68, where it is said that in order to take gifts of land orally, or by writing not under seal, out of the Statute of Frauds “possession must be taken in pursuance of the gift, and as a further condition to the consummation of the equitable right and title, the donee must have made improvements of a valuable and permanent character, induced thereto by the promise to give the land.” Similar conclusions as ho the circumstances under which equity will recognize and enforce a parol gift of land are expressed in 38 C.J.S., Gifts, sec. 57. While it may be inferred from the evidence in this case that Bowen took possession of the real estate, there is a complete lack of proof or showing that he was induced to change his position as a result of the alleged gift, or that he made valuable or lasting improvements in reliance thereon. Barnes v. Banks, it is true, found a valid and irrevocable gift which passed equitable title even though the donee had not made valuable or lasting improvements or altered her position in any material respect. However, as shown by the court’s reliance upon Eckert v. Gridley, 104 Ill. 306, and Finucan v. Kendig, 109 Ill. 198, that result was bottomed solely upon the ground that the gift was between a parent and child, and that it was in the nature of a voluntary family settlement. There are no similarities in the facts or circumstances of this case which command a recognition of equitable title in the alleged donee.

Appellant’s alleged parol gift of her interest in the land, if indeed one was intended, was, therefore, ineffectual to pass title to the donee, either legal or equitable. Since there are no equitable circumstances which require recognition or enforcement of the alleged gift, it remains a gift of a legal estate capable of legal conveyance and, as such, is subject to revocation where no conveyance is made. (See: Wadhams v. Gay, 73 Ill. 415, 431-432; McCartney v. Ridgway, 160 Ill. 129, 156; Geer v. Goudy, 174 Ill. 514, 524-525.) Thus even if it could be said that a gift of the real estate was intended, appellant has revoked it by this action.

We hold, therefore, that the proof introduced in the record by Bowen, the alleged donee, established neither a clear and convincing donative intent nor, if such intent could be said to have existed, such facts or circumstances as would entitle him to equitable recognition and enforcement of a parol gift of land. For these reasons the decree of the circuit court of Brown County is reversed and the cause is remanded to that court with directions to enter a decree of partition in accordance with the prayer of appellant’s complaint.

Reversed and remanded, with directions.


author: Mr. Justice Klingbiel

text:
    (No. 33885.
    Thomas Brown, Plaintiff in Error, vs. The People of the State of Illinois, Defendant in Error.

      Opinion filed May 23, 1956.

      Richard M. OrlikoPP, of Chicago, for plaintiffs in error.
    Latham CasTlP, Attorney General, of Springfield, and John Gutknecht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and R. James PlaTT, of counsel,) for the People.
   Mr. Justice Klingbiel

delivered the opinion of the court:

In 1950, plaintiff in error, Thomas Brown, was tried by jury in the criminal court of Cook County and convicted of the crime of burglary. He was sentenced to- the penitentiary for a term of not less than four nor more than 20 years. Thereafter he filed a petition for relief under the Post-Conviction Hearing Act in the trial court in which he charged that in the proceedings which resulted in his conviction, his constitutional rights were violated in several respects.

The court appointed counsel to represent him at his post-conviction hearing and, at the request of counsel, the bill of exceptions from the original trial was transcribed without cost to petitioner. After the attorney had examined the bill of exceptions, he stated to the court at the hearing that in spite of the fact that the petition alleged that the petitioner’s constitutional rights were violated in several respects, he had elected to proceed upon only one of these allegations, which was the charge that petitioner was deprived of due process of law in that he was not afforded a sanity hearing at the time of his trial to determine whether he was insane at the time of the trial and at the time of the commission of the crime.

The post-conviction hearing in the trial court proceeded solely upon this issue. Following the hearing, the trial court denied any relief to- petitioner who then applied to this court for a writ of error to review said judgment. In the writ of error which was prepared by petitioner’s appointed counsel, there was only one assignment of error, namely that the trial court erred in holding that petitioner had not been deprived of his constitutional rights when he was denied a sanity hearing. We allowed a writ of error and appointed counsel to- represent petitioner. Briefs were filed and the cause was orally argued and is now before us for decision.

It appears from the evidence at the post-conviction hearing, together with the bill of exceptions at the original trial, that at the time of the trial petitioner was 26 years old. Since he was without funds to employ counsel, the court appointed counsel to represent him. Neither petitioner nor his appointed counsel made any motion prior to trial for a sanity hearing, and the cause proceeded to trial before a jury. The State introduced its evidence in chief and rested. Thereafter petitioner took the witness stand in his own defense and denied that he had committed the crime. At the close of the first day of the trial, the taking of evidence was not completed and the cause was adjourned until the following morning. When court convened the next day, petitioner’s counsel stated to the court that his observation of the defendant led him to believe that the defendant was not in his right mind and was unable to cooperate with counsel. At that time the attorney moved that the trial be adjourned so that the defendant could be examined by a psychiatrist. This motion was denied by the court, who stated that the defendant would be provided a sanity examination but not at that time. The defendant was then placed on the witness stand again and the State resumed its cross-examination. Thereafter the State proceeded with its rebuttal evidence and the cause was submitted to the jury who returned a verdict of guilty. Defendant’s counsel made a motion for a new trial which was denied without argument. He then made a motion in arrest of judgment and also moved again that defendant be afforded a psychiatric examination before sentence. The matter was continued for several days for sentencing and at that time petitioner’s counsel again renewed his motion for a psychiatric examination which was again denied, the court stating that he did not believe that the defendant was crazy and that a psychiatric examination would be entirely unnecessary.

At the post-conviction hearing, petitioner’s counsel testified and explained his reasons for desiring such an examination in the midst of the trial. He stated that prior to the trial he had several conversations with petitioner and that petitioner was always able to make coherent answers to his questions and that he gave no indication that he was of unsound mind. When he put the defendant on the witness stand, the story that the defendant told was entirely different from the story that he had told his attorney prior to trial. Furthermore, the attorney testified that when he talked to petitioner on the morning of the second day of the trial, petitioner was unable to cooperate with him. The trial judge at the post-conviction hearing held that in view of the fact that petitioner’s request for a sanity hearing was not made until after the trial was underway, the request came too late. In his oral remarks at the time of his denial of the petition, the trial court stated that he was relying upon the case of People v. Hart, 333 Ill. 169.

We are of the opinion that the Hart case does not require such a result in the instant case. In the Hart case, the defendant was tried by jury for the crime of robbery. After hearing the testimony the jury returned a verdict finding the defendant guilty and also finding that since the commission of the crime he had become insane and was insane at the time of the trial. No motion had ever been made by defendant or his counsel for a psychiatric examination and there was never any intimation in the record that defendant was insane. We held that under those circumstances the verdict of the jury finding him insane at the time of the trial was not responsive to any issue submitted to the jury and held that the portion of the verdict which found him insane was void, leaving in effect the finding of the jury as to the guilt of defendant. There is certain language in the Hart case to the effect that the issue of insanity should be presented to the court before the trial is entered upon. However, since in the Hart case the question of insanity was never presented to the court, the question of the time when such question should be raised was not involved and the case is not authority for holding that a motion for a sanity hearing must be made before trial.

There can be no question but that the trial of a person at a time when he is insane is a violation of due process of law. (People v. Reeves, 412 Ill. 555; People v. Maynard, 347 Ill. 422.) The question before us is whether the denial of a hearing to determine the sanity of an accused at the time of the trial also violates due process of law. It is true as a general rule that it lies within the discretion of the trial court whether the issue of insanity should be first tried before the defendant is placed on trial. (People v. Maynard, 347 Ill. 422.) However, this discretion is not absolute and where, as in this case, defendant’s counsel stated to the court in all good faith that he thought his client was insane and explained to the court why he believed him insane, the court should have made an inquiry into defendant’s mental condition.

It does not matter that the motion of defendant’s counsel was not formally made and might have been technically insufficient under the statute providing for a sanity hearing. The provisions of the statute do not and were not intended to abrogate the common-law rule that no person should be compelled to stand trial while insane. (People v. Maynard, 347 Ill. 422; People v. Gavrilovich, 265 Ill. 1.) Regardless of compliance with the statute, it was the duty of the court, when a bona fide issue of sanity was raised, to determine that issue.

No such determination was ever made. The only semblance of an inquiry made by the trial judge was at the time of the motion in arrest of judgment when defendant’s counsel renewed his motion for a sanity hearing. The court then asked the defendant: “You are not crazy at this time, are you? Do you hear me?”, to which the defendant replied: “I don’t know.” The judge then stated: “I don’t think he is crazy at all.” This purely arbitrary decision by the trial judge, apparently based at least in part upon the defendant’s statement that he did not know whether he was crazy, and without any evidence or argument, is not the type of inquiry contemplated by either the common law or the statute.

A construction of the statute which would, in effect, abrogate the common-law rule and deny a hearing on the sanity of an accused unless strict technical rules of procedure are followed deprives the accused of due process of law. (People v. Kadens, 399 Ill. 394.) “A denial of adequate opportunity to sustain the plea of insanity is a denial of the safeguard of due process in its historical procedural sense which is within the incontrovertible scope of the Due Process Clause of the Fourteenth Amendment.” (See United States v. Baldi, 344 U.S. 561, 571, 97 L. ed. 549, 557-558, dissenting opinion.) By virtue of this constitutional right an accused “is entitled to a hearing on the question whether he was insane at the time of the trial.” (Massey v. Moore, 348 U.S. 105, 99 L. ed 135.) No adequate hearing on this issue was afforded to' the petitioner in the case at bar.

One further point requires brief discussion. Throughout this opinion we have been concerned solely with the question of the sanity of the accused at the time of the trial although it was also assigned as a constitutional question that the court failed to conduct a hearing to determine the sanity of the accused at the time of the crime. The defense of insanity at the time of the crime, like any other defense, must be raised at the time of the trial and submitted to the jury. No special jury is empaneled to try this question, it being submitted to the jury who are hearing the principal case. In the instant case, no evidence was presented to the jury on the defense of insanity, nor did defendant request any instructions on that point. It appears from the testimony of the attorney for the defendant that grounds for doubting the sanity of defendant did not appear until the trial was in progress. The defense of insanity at the time of the crime having not been raised, it was waived.

For the reasons assigned herein, we are of the opinion that the trial court erred in holding that petitioner’s constitutional rights had not been violated. The order of the criminal court of Cook County is reversed, and the cause remanded with directions to set aside the conviction and grant a new trial.

Reversed and remanded with directions.


text:
    (No. 33907.
    John Lamczyk et al., Appellees, vs. W. O. Allen et al., Appellants.

      Opinion filed May 23, 1956.

    Craig & Craig, of Mattoon (J. E. HorslEy, of Mattoon, and D. E. Furnall, of Mt. Vernon, of counsel,) for appellants.

      Hill & Dolan, of Mt. Vernon, (Martin J. Dolan, of Mt. Vernon, and Robert S. Hill, of Benton, of counsel,) for appellees.
   Mr. Justice Maxwell

delivered the opinion of the court:

From a decree of the circuit court of Washington County declaring a certain oil and gas lease a cloud on the title to plaintiffs’ land, defendants, as assignees of the original lease, appeal. The original lease was executed November 15, 1946, by plaintiffs Lamczyk with the Ohio Oil Company as lessee. Additional plaintiff Wood has another oil and gas lease executed by the Lamczyks November 29, 1954, concerning the same land. Briefly stated, it is plaintiff’s contention that the Ohio Oil lease terminated by its own provisions. Defendants contend the lease is still in force under the factual circumstances.

Paragraph 3 of the lease in question provided for a primary term of five years and as long thereafter as oil, gas, casinghead gas, casinghead gasoline, or any of them could be produced from the premises, unless surrendered by lessee as provided in the lease. Paragraph 5 required lessee to pay lessor $150 per year for gas from each well when gas was found while being sold or used off the premises ; if gas only was found lessee was to> pay $50 per year per well where the gas was not used or sold and while this royalty was paid such well was considered as a producing well under paragraph 3. Then paragraph 7 provided if drilling operations were not commenced on or before November 15, 1947, the lease was terminated unless lessee paid $80 on or before said date, which kept the lease alive for another twelve-month period — lessee could extend its time for drilling for successive annual period by payment of the delay rentals. The drilling of a dry hole, by paragraph 9, terminated the lease unless within 60 days drilling operations for another well were commenced or unless there was a resumption of the delay rental payments.

Paragraph 15 provided: “If, within the primary term of this lease, production on the leased premises shall cease from any cause, other than those expressly set forth in Paragraphs 16 or 17 hereof, this lease shall not terminate, provided production shall be resumed or operations for the drilling of a well shall be commenced before or on the next ensuing rental paying date; or, provided lessee begins or resumes the payment of rentals in the manner and amount hereinbefore provided. If, after the expiration of the primary term of this lease, production on the leased premises shall cease from any cause, other than those expressly set forth in Paragraphs 16 and 17 hereof, this lease shall not terminate, provided production shall have been resumed or operations for drilling a well commenced within sixty (60) days from such cessation, and this lease shall remain in force during the diligent prosecution of such operations and, if production results therefrom, then as long as production continues in the manner provided for in this lease.”

Paragraph 16 provided: “If, after production has been obtained, operations under this lease are delayed, interrupted or prevented by acts of God, fire, riots, wars, strikes, inability to obtain equipment due to governmental order or action, or by failure of carriers to transport equipment, or by regulation by State or Federal action, this lease shall not terminate or be forfeited and no right of damages shall exist against lessee by reason thereof, provided operations are commenced or resumed within a reasonable time after removal of such cause or causes. If at any time within three months prior to the expiration of the primary term of this lease, production has not been obtained and the commencement or continuance of operations for the drilling of a well on said lands is delayed or prevented by any of the causes mentioned in this paragraph, the said primary term and all other terms of this lease may be extended for successive periods of time while such cause or causes exist, by continuing the payment or tender of delay rentals in the manner and amount and for the periods of time as provided in Paragraphs 7 and 8 of this lease for deferment of the commencement of drilling operations during the said primary term.”

Paragraph 17 provided: “It is further agreed that during any period of overproduction the lessee may curtail production and prorate runs from said lands on a basis equal to any curtailment or proration in effect on adjoining lands, or in compliance with any proration order issued by any governmental authority. Operations hereunder may be suspended or discontinued during such time as the price of oil produced from said lands shall be less than 75 cents per barrel at the well, or for such time as there shall be no reasonable market for the oil and/or gas that may be produced from said lands, and this lease shall not terminate or be forfeited and no right of damages shall exist by reason of such suspension or discontinuance, provided operations are resumed within a reasonable time after removal of such cause.”

Paragraph 19 provided: “It is agreed that this lease shall never be forfeited or cancelled for failure to perform, in whole or in part, any of its implied covenants, condition, or stipulations, until it shall have been first finally judicially determined that such failure exists, and after such final determination, lessee is given a reasonable time therefrom to comply with any such covenants, conditions, or stipulations.”

In January, 1948, Ohio Oil assigned to defendant Allen, who, with the other defendants Mabee and Galbreath, stands in the position of the Ohio Oil Company. Allen operated the Lamczyk lease and in 1947 acquired eight oil and gas leases on contiguous tracts. Between September 1947 and September 1948 he drilled eight wells in this block. The fifth well was on the Lamczyk lease in November 1947. These wells, plus two other dry holes drilled by Allen in the same area, comprised ten test wells in that field. The eight producers were completed as gas wells with the exception of the discovery well on adjoining land. There was considerable testimony as to the capacity, pressure, potential and price of gas concerning this Lamczyk well. In addition, Allen testified to lengthy negotiations respecting his attempt to market this gas. The Lamczyk well was capped and has so remained. Defendants made no payments to plaintiffs. The bill to remove the cloud on plaintiffs’ title was filed February 4, 1955, and alleged defendants’ failure to make any payments under the lease and charged that the lease terminated and lapsed by its own terms and conditions. Defendants urge that under Paragraph 17 of the lease they were under no duty to pay the “shut-in” royalty mentioned in paragraph 5 for the reason that suspension in operations was due to nonavailability of a market, and that defendants had diligently sought to remove this cause of suspension.

We have carefully reviewed the evidence in this case and are of the opinion that there is substantial agreement on both sides as to- the salient facts. The decision of this case must necessarily rest on the construction of the lease. No good purpose can be served by the recitation and citation of authority. An analysis of the instrument in question must yield the result which best answers the query— what is the intention of the parties as derived from the language employed and is it clear and unambiguous or vague and equivocal? Paragraph 5 providing for the payment of “shut-in” royalties is clear and direct. To keep the lease alive where gas is found and not sold the payment must be made to consider the well as a producing well. Paragraph 17 clearly contemplates a condition where there has been production of gas together with its delivery and sale but that, due to certain conditions after production, suspension of operations is caused by no reasonable market being available, and provides for resumption within a reasonable time after removal of the cause. In the construction. QÍ deeds, wills, contracts and other instruments in writing the courts seek to ascertain the intention of the parties, and the intention, when found, will be given effect if it is consistent with the language used and with the law and with public policy. Anderson v. Stewart, 285 Ill. 605; Bear v. Millikin Trust Co. 336 Ill. 366; Woods v. Seymour, 350 Ill. 493; Henry v. Metz, 382 Ill. 297.

We are of the opinion that the lower court’s decree was correct and it is hereby affirmed.

Decree affirmed.