author: Mr. ChiEE Justice Klingbiel

text:
    (No. 34046.
    Dr. Robert Reitman et al., Appellees, vs. The Village of River Forest et al., Appellants.

      Opinion filed September 25, 1956

    Rehearing denied Nov. 19, 1956.

      Charles L. Michod, and Taylor, Miller, Busch & Magner, both of Chicago, (Richard F. Babcock, and Thomas P. Segerson, of counsel,) for appellants.
    Grossman & Grossman, of Chicago, (Samuel Gross-man, and Lester N. Grossman, of counsel,) for appellees.
   Mr. ChiEE Justice Klingbiel

delivered the opinion of the court:

Robert Reitman and his wife, the owners of a lot in the village of River Forest, brought a declaratory judgment action in the circuit court of Cook County to construe certain zoning provisions or, in the alternative, to declare them unconstitutional and void. Evidence was taken before a master, who recommended that relief be denied. The plaintiffs’ exceptions were sustained, and the report was disapproved. The court found both that the ordinance “does not lend itself to the interpretation” urged by the defendants, and that “as interpreted” by them it is invalid and unconstitutional in its application to plaintiffs’ property. Judgment was entered declaring the provisions unconstitutional “as construed by the officials of said Village, when applied to the land of the plaintiffs.” Defendants appeal directly to this court, the trial court having certified that the validity of a municipal ordinance is involved and that the public interest requires the appeal to be so taken.

The lot in question, acquired by plaintiffs in 1954, has a frontage of 42 feet on Park Avenue and a depth of 185 feet. It is located in a choice residential area zoned for single-family homes; and expensive residences adjoin the lot on both of its sides. Plaintiffs desire to erect thereon a single story ranch style home, with the narrow dimensions facing the street. Under defendants’ interpretation of the ordinance provisions hereinafter set forth, a minimum of one fifth of an acre is required for each single-family residence. The area of plaintiffs’ lot is about 11 per cent less than this minimum. The other lots in this vicinity are substantially larger in area and in width. Every dwelling house within a thousand feet of the subject property is located on at least one fifth of an acre. Residences to the north and south are 30 feet in depth whereas the plaintiffs’ proposed structure would have a 75-foot depth, leaving 45 feet protruding beyond the rear line of neighboring houses. Evidence in the record indicates that in the administration of the ordinance it has been consistently construed to require at least one fifth of an acre for each single-family residence.

The plaintiffs applied for a variance before the Zoning Board of Appeals. The application was denied, and they thereupon filed this action for a declaratory judgment. It is argued on the merits that the ordinance as properly construed requires at least one fifth of an acre for each single-family dwelling, and that as so construed it is a valid exercise of the police power.

Insofar as it is involved here the ordinance provides that “No dwelling house shall hereafter be erected or altered tO' accommodate more than five (5) families on any acre of land nor make provisions for more than a proportional number of families on a fractional part of any acre of land. The maximum number of families which may hereafter be housed on any plot of ground shall not exceed the integral number obtained by multiplying the acreage of such plot, exclusive of the area within street lines, by five (5) ; provided, however, that the limitation imposed by this paragraph shall not prohibit the erection of a dwelling arranged or designed for the use of only one family on a lot shown as such on a recorded plat in the Recorder’s Office of Cook County, Illinois, at the time that this ordinance takes effect and containing an area of less than one-fifth of an acre.” In ascertaining the meaning of an ordinance, the applicable rules of construction are the same as those which apply in construing statutes. (Dean Milk Co. v. City of Chicago, 385 Ill. 565.) As in the case of statutes, the primary object is to ascertain and give effect to the intention of the law-making body as disclosed by the language used. (City of Nameoki v. City of Granite City, 408 Ill. 33.) While the present provisions are awkward and inart fully drawn, the intent is evident to- require at least one fifth of an acre for each single-family dwelling. After limiting each acre to five family dwellings, the ordinance prohibits any more than a proportional number on a fractional part of any acre. Since the fractional part involved here is less than one fifth, the proportional number would be less than one. This conclusion is re-inforced by the further provision that “The maximum number of families which may hereafter be housed on any plot of ground shall not exceed the integral number obtained by multiplying the acreage of such plot * * * by five.” Application of this formula also requires that plaintiffs’ residence must have at least one fifth of an acre.

Plaintiffs urge a construction that would limit the application of this latter provision to land which was unsubdivided at the time the ordinance became effective. They argue that the term “plot of ground” refers in this case to- the block in which plaintiffs’ lot is situated, and not to the individual lot. The meaning of the word “plot” as it appears in an ordinance is governed by the sense in which it was used by the legislative body. (Jennings v. Calumet National Bank, 348 Ill. 108.) We find nothing in the language of the ordinance, or in its evident purpose to limit intensity of use, which supports plaintiffs’ construction. The concluding proviso- of the ordinance, excepting from its limitations the use of “less than one-fifth of an acre” for a single-family dwelling where the lot was shown on a recorded plat at the time the ordinance took effect, shows an intent to prohibit such use unless the lot was so- shown and recorded. It is not contended that plaintiffs’ lot qualifies under the “grandfather” clause.

Defendants urge further that the trial co-urt erred in declaring unconstitutional the ordinance provisions as construed herein. To sustain the judgment plaintiffs merely assert their conclusion that “refusal to issue the requested building permit makes plaintiffs’ property utterly worthless.” No attempt is made to show an absence of any relationship to- public health, safety or welfare; nor do plaintiffs point to- any evidence of the extent to which the market value of the lot is impaired. They rely solely upon the inference that “if it cannot be utilized for the erection of a home, then it has no value.” This, we think, is not enough to- sustain the burden of proof resting on one who assails the validity of an ordinance. To- overcome the presumption of validity, it is encumbent upon the property owner to prove by clear and affirmative evidence that the restriction is arbitrary and unreasonable. First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213.

The present provisions were in effect for some 32 years prior to the plaintiffs’ purchase. The 42-foot lot which they now own came into existence in 1928, when one who then owned 98 feet of frontage conveyed the south 56 feet thereof. At that time the area requirement had already been in existence for six years. It is not contended that the former owner could have avoided the requirement by conveying a portion of his lot and then insisting that as applied to the remainder the ordinance is invalid. Such a contention, if upheld, would render ineffective all attempts to regulate lot areas. But the plaintiffs here cannot acquire greater rights than those of their predecessor in title. They stand in the place of their grantor and are estopped by acts of their predecessor in title which would have estopped him from contesting the validity of the ordinance. Cf. Harmon v. City of Peoria, 373 Ill. 594, 602; Forbes v. Hubbard, 348 Ill. 166, 175-176.

In any event this court cannot say the ordinance has no reasonable relationship to legitimate objects of the police power. As the Massachusetts Supreme Judicial Court observed in Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516: “The establishment of a neighborhood of homes in such a way as to avoid congestion in the streets, to secure safety from fire and other dangers, to prevent overcrowding of land, to obtain adequate light, air and sunshine, and to enable it to be furnished with transportation, water, light, sewer and other public necessities, which when established would tend to improve and beautify the town and would harmonize with the natural charcteristics of the locality, could be materially facilitated by a regulation that prescribed a reasonable minimum area for house lots.”

We conclude that the ordinance provisions in dispute, when properly construed, require an area of at least one fifth of an acre for a home, and that as so construed they are not arbitrary or unreasonable in their application to the plaintiffs’ property. The judgment of the circuit court is reversed and the cause is remanded with directions to enter judgment for defendants in accordance with the views herein expressed.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Schaeber

license: Public Domain

text:
    (No. 33849.
    Elmo Gholson, Appellee, vs. C. Hobart Engle, Director of Registration and Education, Appellant.

      Opinion filed November 26, 1956.

      Latham Castle, Attorney General, of Springfield, (John L. Davidson, Jr., Mark O. Roberts, and Arthur Nebel, of counsel,) for appellant.
    Conger & Goebel, of Carmi, (Ivan A. Elliott, Jr., of counsel,) for appellee.
   Mr. Justice Schaeber

delivered the opinion of the court :

The plaintiff, Elmo Gholson, operates funeral homes in McLeansboro and Dahlgren. He is not a licensed funeral director, and he brought this action to restrain the Director of the Department of Registration and Education from enforcing against him the statute which makes it unlawful to direct funerals without a certificate of registration issued by the Department. His complaint alleged that the statute violates the Federal and State constitutions in many respects. After a trial the circuit court of Hamilton County held the act unconstitutional in its entirety, and the defendant appeals.

Article I of the act regulating funeral directing and embalming (Ill. Rev. Stat. 1955, chap, mji, pars. 73.1-73.10a,) deals with funeral directors. Section 2 of that article defines the practice of funeral directing as “(a) The business of preparing, otherwise than by embalming, for the burial or disposal and directing and supervising the burial or disposal of dead human bodies, (b) The business of providing or maintaining a place for preparing for the disposition of dead human bodies or for caring for dead human bodies prior to their disposition, (c) Using in connection with his name of business, the word ‘funeral director,’ ‘undertaker,’ ‘mortician,’ ‘funeral home,’ ‘funeral parlor,’ ‘funeral chapel,’ or any other title implying that he is engaged in the business herein described.”

Section 4 of article I makes it unlawful to engage in funeral directing without a certificate of registration issued by the Department. To qualify for a certificate an applicant must (a) be at least 21 years of age and a citizen of this State, (b) be of good moral character and temperate habits, (c) be a holder of a certificate of registration as a registered embalmer, and (d) have passed an examination conducted by the Department.

Article II (Ill. Rev. Stat. 1955, chap, 111^2, pars. 73.11-73.20,) deals with embalmers. Section 1 of that article defines the practice of embalming as “The embalming or representing or holding out oneself as engaged in the business of embalming of dead human bodies or the preparation for transportation of human bodies dead of a contagious or infectious disease.” Section 2 makes it unlawful to practice embalming without a certificate of registration issued by the Department. To qualify for a certificate of registration as an embalmer, section 3 provides that an applicant must (a) be 21 years of age, (b) be of good moral character and temperate habits, (c) have successfully completed one academic year in an approved college or university, (d) have graduated from an approved school of embalming which requires as a prerequisite to graduation the completion of a course of study of at least nine months duration, (e) have studied embalming as a registered apprentice under a registered embalmer for at least one year, (f) have passed an examination conducted by the Department, and (g) be properly protected against communicable diseases. The qualifications for a registered apprentice embalmer are the same except that he need be only 18 years old, and instead of having completed his year of apprenticeship he is required to have entered upon it.

Plaintiff’s attack presses most strongly upon the provision that requires a funeral director to be a registered embalmer. That provision is pivotal. Its validity depends upon the interrelation of the activities of the funeral director and,the embalmer, and upon the degree to which the activities of both are related to the public health and welfare.

When death occurs, a member of the family of the deceased usually calls the funeral director, who obtains such information as the name and age of the deceased, the name of the attending physician and the cause of death. He makes contractual arrangements for his services, secures the requisite information for newspaper funeral notices and obituaries, ascertains the names of the pallbearers and communicates with them, checks the availability of the officiating minister and the church, and makes arrangements for the burial. He assists in conducting the funeral service, and in moving the coffin to and from the hearse. If the body is to be shipped, he makes the arrangements.

.The process of embalming was described by competent witnesses in a degree of detail not necessary here. Basically the process is one of eliminating liquids and gases, and substituting embalming fluid for blood. Cosmetics are applied, and restorative work involving the use of wax or other materials may be indicated. Embalming requires the exercise of discretion and judgment by the embalmer. It also requires a degree of special knowledge of anatomy, pathology at death and bacteriology. Where death results from a communicable or contagious disease, special knowledge and understanding are required. Skill is required in the plastic restoration, repair and preservation of human bodies to present as natural and lifelike an appearance as possible.

Whether or not a body will be embalmed, and if so by whom, is usually left to the discretion of the funeral director. After a body has been embalmed, the director usually checks it visually or by touch at least twice a day. Conditions sometimes appear which require further attention by the embalmer.

Embalming is not compulsory in Illinois, but the practice has grown in recent years and is now almost universal. Even bodies which are creamated are usually embalmed. Embalming aids in the lifelike preservation of the body. And there is evidence in the record admitting of the construction that the wide acceptance of embalming is also related to the public health, and that the practice has grown, in part, because embalming aids in reducing the spread of disease.

When communicable diseases cause death, precautionary measures are required. The board of health is notified before the body is moved. Sanitary precautions are taken to protect both the embalmer and the funeral director. Private funerals are required when death results from such contagious diseases as bubonic plague, anthrax, psittacosis and cholera.

Two medical witnesses who had extensive experience testified that they did not know of any case where a contagious disease had been transmitted from a corpse to a human being. The possibility of such transmission was, however, admitted. They testified, further, that the danger of transmission would vary from case to case. The record discloses one recorded instance in California in 1926, in which two embalmers became infected with smallpox from embalming a body infected with the disease and became carriers. There was evidence to the effect that bacteria can be isolated and grown in cultures taken from corpses even after embalming.

Plaintiff concedes, and the authorities are clear, that the public interest, and particularly public health considerations, justify regulation of the handling of dead bodies. (Prata, Undertaking Co. v. State Board of Embalming, 55 R.I. 454, 182 Atl. 808, 104 A.L.R. 389; State v. Rice, 115 Md. 327, 80 Atl. 1026; Keller v. State, 122 Md. 677, 90 Atl. 603; Wyeth v. Board of Health, 200 Mass. 474, 86 N.E. 925; People v. Ringe, 197 N.Y. 143, 90 N.E. 451.) Without question the activities of funeral directors and those of embalmers are subject to regulation. The disputed issue is whether the interest of the public carries further and justifies the compulsory partial merger of their activities by requiring that a funeral director have the knowledge, skill and training of an embalmer before he can direct a funeral. In our opinion it does not.

While the question is one of first impression here, many other courts have considered the validity of similar statutes or administrative regulations, and, with one exception, they have been held invalid. (People v. Ringe, 197 N.Y. 143, 90 N.E. 451; State ex rel. Kempinger v. Whyte, 177 Wis. 541, 188 N.W. 607; State v. Rice, 115 Md. 317, 80 Atl. 1026; Wyeth v. Board of Health, 200 Mass. 474, 86 N.E. 925; Hart v. Board of Examiners, 129 Conn. 128, 26 A.2d 780.) The exception is a Florida decision. (State Board v. Cooksey, 147 Fla. 337, 3 S.2d 502.) That was a proceeding to revoke Cooksey’s license as a funeral director for failing to transport a body in a casket which conformed to the sample submitted, for making false representations, and for other misconduct. In the reviewing court Cooksey questioned the validity of the act under which he was licensed upon grounds that included the one here involved. The court said, “Appellee has cited a number of cases which appear to support his contention but we are not inclined to follow the reasoning of these cases. * * * When we consider the service which a funeral director is required to render to the public and the duty which he owes to the public to see that that service is properly, efficiently, honestly and promptly rendered, we can find nothing unreasonable or unwarranted in the statutory requirement that each funeral director shall be a licensed embalmer.”

In the record before us there is no suggestion that the requirement was imposed to meet economic ills in the undertaking business, or that excessive costs result when a funeral director hires an.embalmer instead of doing that work. An unsuccessful effort was made to prove that the general public believes that the funeral director does the embalming. But even if the effort had been successful, that circumstance could hardly justify the requirement without further proof that some deleterious consequence resulted from the disparity between the popular belief and the facts.

The record does not, in our opinion, establish that public health considerations justify the requirement that a funeral director be a licensed embalmer. The funeral director is concerned primarily with the amenities of the funeral service. Proper performance of his other functions, such as removing and dressing the body, ascertaining the cause of death, and inspecting the body while it is in the coffin, does not require a year of college, nine months at an embalming school and a year’s service as an apprentice embalmer. Nor are these qualifications necessary in order that he may effectively supervise the work of the embalmer. Specialized training is not required in order to recognize the conditions that require further work on the part of the embalmer. We hold, therefore, that the circuit court was correct in determining that this provision violates section 2 of article II of the constitution.

The title of the act is “An Act in relation to the regulation of persons engaged in the practice of funeral directing and embalming, and to repeal an Act therein named.” Plaintiff argues that because the title mentions both funeral directors and embalmers it contains more than one subject, in violation of section 13 of article IV of the constitution. The subject of the act, however, is the regulation of those who handle the bodies of deceased persons in connection with their burial, and the fact that both of the occupations that are engaged in that activity are mentioned in the title does not mean that more than one subject is involved.

Plaintiff also challenges those provisions of the act that establish an apprentice system for embalmers and require funeral directors to have, or be employed in, a fixed place of business. Since plaintiff does not seek a certificate as an embalmer, and we have held that he need not have one in order to receive a certificate as a funeral director, he is not affected by the requirement that embalmers serve an apprenticeship. Nor is he affected by the provision directed at itinerant funeral directors, for the record shows that he owns a mortuary. “A court will consider the validity of a statutory provision only at the instance of one who is directly affected by it, [citations,] unless, indeed, the unconstitutional feature is so pervasive as to render the entire act invalid.” People v. Reiner, 6 Ill.2d 337, 341.

Plaintiff argues that the section relating to the conduct of examinations unlawfully delegates power. “The Department shall hold examinations of applicants for certificates of registration as registered funeral directors at such times and places as it may determine. The examination may include both practical demonstrations and written and oral tests and shall embrace the subjects of sanitary science, health regulations in relation to the handling of dead human bodies, measures used by funeral directors for the prevention of the spread of diseases, and such other subjects relating to the care and handling of dead human bodies as the Department by rule may prescribe.” (Ill. Rev. Stat. i955j chap, m^, par. 73.6.) Specifically, the plaintiff argues that it would be futile to take the examination for a funeral director’s certificate because the board is authorized to include questions covering the field of embalming, and is not limited to questions concerning the qualifications of funeral directors. Plaintiff has not taken the examination, and we cannot assume improper questioning by the board. Plaintiff has not been injured or affected by this section of the statute, and is therefore precluded from questioning its constitutionality. People v. Reiner, 6 Ill.2d 337, 341; Elliott v. University of Illinois, 365 Ill. 338, 346; Kettles v. People, 221 Ill. 221, 233; Williams v. People, 121 Ill. 84, 90.

The trial court held the entire act invalid. In our opinion, however, the provision which requires that funeral directors hold certificates as embalmers is not so integrated with the other provisions of the statute as to make the whole act unconstitutional. (See Ill. Rev. Stat. 1955, chap. hipar. 73.30.) The act can readily be administered without that provision. For this reason the decree must be reversed and the cause remanded, with directions to enter a decree in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.


author: Mr. Justice Hershey

text:
    (No. 33865.
    The People of the State of Illinois, Defendant in Error, vs. Roger Touhy, Plaintiff in Error.

      Opinion filed November 26, 1956.

      Robert B. Johnstone, of Chicago, for plaintiff in error.
    Latham Castee, Attorney General, of Springfield, and Frank H. Masters, Jr., State’s Attorney, of Joliet, (Fred G. Leach, and Edwin A. Strugaea, of counsel,) for the People.
   Mr. Justice Hershey

delivered the opinion of the court:

After a jury trial in the circuit court of Will County, the defendant, Roger Touhy, was found guilty of aiding Edward Darlak, a fellow prisoner, escape from the penitentiary, in violation of section 92 of division I of the Criminal Code. (Ill. Rev. Stat. 1941, chap. 38, par. 228.) At the time of the offense, Darlak, a convicted murderer, was serving a 199 year sentence, and pursuant to said statute the court sentenced the defendant to a term of 199 years.

In- urging a reversal, the defendant claims the statute is both inapplicable and unconstitutional.

The provision reads as follows: “Whoever conveys into the penitentiary, or into any jail or other place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or by any means whatever aids, abets, or assists such prisoner to escape or to attempt to escape from any jail, prison, or any lawful detention whether such escape is effected or attempted or not, or conceals or assists any convict after he had escaped, shall upon conviction thereof be given the same penalty as the prisoner whom he aided or abetted, except that in case the prisoner is sentenced to death, the penalty for such aid shall be imprisonment for life in the penitentiary.”

Initially, the defendant argues that the foregoing section does not apply to a convict who aids a fellow convict to escape. But he advances no reasons in support of the asserted exemption, and the statute by its terms applies to anyone guilty of the proscribed conduct. See People v. Nicholson, 401 Ill. 546.

The defendant’s next ground for reversal is that “if said section is modified by the Indeterminate Sentence Act, the sentence imposed upon defendant was illegal and void since the procedure required by said Act was not followed at bar.” However, as we understand the defendant’s argument, he does not maintain that the so-called “Indeterminate Sentence Act” (Ill. Rev. Stat. 1941, chap. 38, par. 802,) was, in fact, applicable to a case of this nature. Nor do we see any such application. The section of the Criminal Code under which Barlak, the escapee, was sentenced, provides for punishment of death, imprisonment for life, or a term of not less than 14 years. The statute under consideration provides that upon conviction of the person who aids or assists the escapee, the penalty shall be the same as that given the prisoner whom he aided. The penalty imposed upon Barlak was fixed at a term of 199 years, and it was permissible for the court to impose a like sentence on the defendant. (Cf. People v. Nicholson, 401 Ill. 546.) Darlak was not sentenced under the “Indeterminate Sentence Act,” (section 2 of the Sentence and Parole Act,) but under provisions allowing for a fixed number of years.

The defendant’s remaining objections relate to the constitutionality of the statute. In this regard, his principal contention is that it “fails to provide for like punishment for the same or similar offenses in violation of Article II, Sec. 2, Sec. 11 and Sec. 20 of the Constitution of the State of Illinois, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.”

The constitutionality of this statute has twice been considered by this court, and in each instance the legislation was held valid as against the asserted objections. People v. Nicholson, 401 Ill. 546; People v. Vraniak, 5 Ill.2d 384.

In the Nicholson case, as here, the defendant argued that the statute created an arbitrary classification. But the court pointed out that it was within the scope of legislative power to measure the punishment by the seriousness of the offense of the prisoner assisted in escaping, stating it was proper “to provide one penalty for all prisoners who aid one convicted of robbery to escape, and to provide another penalty for all prisoners aiding one convicted of petty larceny to escape.” (p. 553.) Implicit in this is the recognition that a greater injustice is done to society by assisting the escape of one convicted of a more serious crime (such as murder, where the statutory penalty is death, imprisonment for life or a term of not less than 14 years) than in aiding the escape of one convicted of a lesser offense (such as forgery, where the prescribed penalty is not less than one nor more than 14 years). We cannot say that this is an unreasonable approach for the legislature to adopt. “* * * it is strictly within the province of the legislature to declare what conduct shall or shall not be punished,” (People v. Vraniak, 5 Ill.2d 384, 390,) and it is not the province of the courts to interfere unless the penalty imposed is manifestly disproportionate to the nature of the offense. People v. Lloyd, 304 Ill. 23.

In the Vraniak case, decided last year, we held the statute was not unconstitutional in punishing the aider and not the escapee, since there was a sound policy to be subserved in singling out for punishment one who aids in the escape of a prisoner.

As noted, the statute before us reflects the legislature’s view that aiding the escape of a murderer, for example, is a more serious offense than aiding the escape of a burglar or robber, the greater danger to society resulting from the escape of a prisoner having more serious criminal propensities being thought to justify a heavier penalty for the one who-aids the escape. In order to effectuate this general idea, the legislature might have provided expressly for separate and distinct crimes of aiding the escape of a murderer, aiding the escape of a burglar, and so on. But legislative bodies are permitted a wide range of discretion in exercising their power to make classifications. (People v. Saltis, 328 Ill. 494.) Accordingly, in this instance the legislature decided to take account of the classifications already in the Criminal Code and simply provide that the defendant be given the same penalty as the prisoner whom he aided or abetted. This may result in severity of punishment in some cases, but it does not constitute an unreasonable classification.

The defendant’s remaining points are either discussed in the Nicholson case and further elaboration is unnecessary, or are matters which should be directed to the legislature, not the courts. Among the latter is the legality of the 199 year sentence, which this court has held is within the power of the legislature to prescribe. People v. Pace, 362 Ill. 224; People v. Rucker, 364 Ill. 371.

For the reasons stated, the judgment of the circuit court of Will County is affirmed.

Judgment affirmed.


author: Mr. Justice Bristow

text:
    (No. 33917.
    The People of the State of Illinois, Defendant in Error, vs. Helen Joan Ryan, Plaintiff in Error.

      Opinion filed November 26, 1956.

    Weston and Keenan, of Rockford, (Max A. Weston, of counsel,) for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and Robert R. Caneield, State’s Attorney, of Rockford, (Fred G. Leach, Edwin A. Strugala, and Rosario A. Gaziano, of counsel,) for the People.
   Mr. Justice Bristow

delivered the opinion of the court:

By this writ of error Helen Joan Ryan, hereinafter referred to as defendant, seeks a reversal of a judgment entered in the circuit court of Winnebago County wherein she was found guilty of involuntary manslaughter and sentenced to serve three to ten years in the Illinois State Reformatory for Women.

Defendant was indicted on a two-count indictment charging her with murder and manslaughter. Both counts charge that death was caused by wrapping a new-born baby in a towel and placing it in an overnight case, thereby producing death due to obstruction of blood aeration. A motion to quash the indictment was denied, and she pleaded not guilty. The trial before a jury resulted in a verdict finding defendant guilty of involuntary manslaughter. Motions for a new trial and arrest of judgment were subsequently overruled and defendant was sentenced as aforesaid.

The principal error assigned in this review is lodged in a factual controversy, so we will relate the circumstances surrounding the homicide rather fully. In July, 1955, the defendant, an unmarried woman of 27 years of age, resided in Rockford, Illinois, with two other young ladies. She had been a registered nurse since 1950, employed in that capacity by two doctors and had from time tO' time assisted in the prenatal care of pregnant women. Defendant had known since January that she was pregnant, and that it was fast approaching the time when her child would be born.

The three-room-and-bath apartment then occupied by the defendant and other young ladies was so arranged that defendant and one Carol Piebelkorn shared the same bedroom each having separate beds. The bathroom adjoined the bedroom. A third young lady slept in the living room.

About 3 A.M. on Saturday, July 30, defendant went to the bathroom unattended, and shortly thereafter the baby was born. Before its arrival defendant had prepared two lengths of heavy crochet thread, washed a pair of scissors in soapy water, put a supply of newspaper in the bathroom and placed a large beach towel on the bathroom floor upon which to lie. Previously she had placed a small empty overnight case in the bathroom behind the bathtub. This overnight case was just large enough to contain the wrapped body of a baby and could be locked tightly with a key. Defendant had this key along with other keys on a chain in the pocket of her bathrobe which she had on when she went to the bathroom to give birth to the child.

Immediately after the child was born, defendant tied the umbilical cord in a manner to protect both mother and child and cut the cord between the two tied places. She then took the normal steps for her own protection, wrapped the placenta in the newspaper and put it in the wastebasket in the bathroom. Thereafter she baptized the child with cold water from the bathroom faucet. Some 45 minutes after birth she wrapped the child in the beach towel upon which she had been lying. She then put the wrapped child in the overnight case, closed the lid, turned the key and left it in the bathroom. She thereafter went back to bed. Later, on Saturday morning and before her roommates awakened, defendant took the wastebasket to the trash can and burned the contents, leaving the overnight case and its contents in the bathroom.

Defendant worked her regular hours on Saturday at the doctor’s office where she was employed. On Saturday evening she unlocked and opened the overnight case briefly, then closed and relocked it. The baby remained locked in the overnight case until approximately 1:3o o’clock the following Sunday afternoon when she removed the body of the baby from its container, unwrapped it from the beach towel, rewrapped it in a sheet, wrapped newspapers around it, put the bundle in a paper shopping bag and tied the whole with a cord. The beach towel was wrapped in a second package. Defendant then took the shopping bag containing the baby’s body just outside the house and buried it in a shallow grave.

On August 17, 1955, defendant went to the offices of a charity in Rockford at the request of a caseworker. She told the caseworker that she knew why she had been sent for, began to cry, saying that she had become pregnant out of wedlock, had delivered a baby herself and had buried it. The caseworker took her to the juvenile probation officer where she was met by two policewomen, Bernice Olson and Gloria Nelson, who questioned her at length and to whom she told substantially the same things, drawing for them a diagram of the place where she had buried the baby. Thereafter defendant gave a statement which was typed by policewoman Olson and signed by defendant.

Later that afternoon the two policewomen accompanied by three detectives, the coroner and two newspaper photographers went to the location defendant had indicated on the diagram. Three or four inches below the surface of the ground, the coroner uncovered a paper-wrapped package with a strong odor. He took this package to Dr. Paul Van Pernis, a pathologist and a director of the Swedish-American Hospital laboratory. Dr. Van Pernis unwrapped the package and found a full-term female baby approximately eight pounds in weight upon which he performed an autopsy.

After the finding of the baby’s body, the two policewomen returned to the police station and again discussed the matter with defendant. Whereupon, the defendant gave a second signed statement to policewoman Nelson who typed the same.

The position of defendant was that the baby, if born alive, was dead at the time she wrapped it in the beach towel and placed it in the overnight case and that death was due to natural causes.

The first error urged is that the evidence in this case failed to prove the corpus delicti beyond a reasonable doubt, in that it does not show that the death was caused by the criminal agency of the defendant. It is earnestly argued by defendant that no evidence was submitted as to the cause of death.

To establish the corpus delicti in a prosecution for the killing of a new-born child two elements must concur, namely, birth of the child alive and death resulting from a criminal agency. These ingredients of the crime must be proved beyond a reasonable doubt, and can be established by direct or circumstantial evidence.

Policewoman Bernice Olson was called by the People. On direct examination she testified that she along with policewoman Gloria Nelson had first talked to defendant on August 17, 1955, in the juvenile probation officer’s office. On that occasion defendant was asked whether or not the baby had cried and defendant said she didn’t know whether the baby cried or not. Defendant was asked if it had moved and defendant said she thought the baby was dead. After the preliminary questioning, witness prepared and defendant signed a written statement and drew a rough map showing the location of the baby. Thereafter defendant was incarcerted while the authorities exhumed the body. Later the same day the witness talked to defendant again. On this occasion the witness testified, “We asked her again if she had noted whether or not the baby had lived or if it had made any sound or if it had moved in any way at the time of its birth. She said yes, that it had. That it cried once, that it had moved its little arms.” On cross-examination the witness reiterated the testimony given on direct examination. When interrogated by counsel for defendant regarding this question asked her at the coroner’s inquest: “In her expressions to you, was she conscious of wrapping the baby alive?” Witness admitted she had answered by saying: “She didn’t know whether the baby was alive or not, but she thought it wasn’t.”

Dr. Van Pernis, a pathologist, was called and testified that he performed an autopsy on the baby in question, which had been dead at least 24 hours and perhaps longer. The external appearance indicated it had been buried a longer time. The child was a full-term female, approximately eight pounds in .weight and normal length. He also determined the presence of gas, actually air, in both lungs which were fully expanded. The presence of gas, he stated, could come from two main sources: It indicates that the body had recently been alive or that there is decay present by bacteria and other organisms which may produce gas. In his opinion the infant had been alive because the lungs were fully expanded, filling the chest cavity on both sides. He explained that ordinarily in a new-born baby which has not been alive, the lungs are collapsed and are in the middle of the chest leaving a considerable space between the lung tissues and the chest wall itself; that in the body under consideration there was no evidence any place in the lungs that there was any collapse of tissue. He determined that the umbilical cord was still present and that it had probably been tied with a black string-like material. He further testified that in his opinion death had occurred relatively soon after birth as the bones of the skull were overriding. It was his opinion that the child did live and breathe. On cross-examination he testified he could not determine with any degree of medical certainty how long the child had lived. Dr. Van Pernis did not give and was not asked if he was able to determine medically as to what was the cause of death.

Policewoman Gloria Nelson testified on direct examination that after the body of the child had been exhumed, she, together with policewoman Bernice Olson, had a second conversation with defendant as to whether or not the baby was alive after birth. The witness said defendant told her it had cried and that she had seen its arms move. When questioned regarding preparation of the second statement the witness testified that she typed it from what defendant told her. On cross-examination the witness testified defendant told her that when she wrapped it in the beach towel she didn’t know whether it was living or dead.

Two statements by defendant, both dated August 17, 1955, were admitted into evidence. The statements for the most part were identical in the events leading up to the birth. In the first statement she says “as far as I know the baby did not cry and it did not show any signs of life. After birth, the baby remained curled up.” The second statement, taken after the autopsy, is identical up to this point, but contains at this point the statement, “I heard the baby cry once and I became panicky. I saw it move its little arms. I did not look to see what sex it was. The baby remained curled up. Although I knew it was living when born, I did nothing to try to keep it alive. I started crying myself then.” In the second statement, these damaging admissions appear: “I knew when I was wrapping the baby in the beach towel that I was doing wrong for I knew that the baby had lived as I heard it cry and saw it move. I made no effort to keep it alive and was not sure when I wrapped it in the towel whether it had died or was still breathing. I am a registered nurse and am very familiar with birth and the details it involves.” The second statement then concluded, “My other statement was partly true but not entirely. This statement is the truth.”

Carol Fiebelkorn, one of the defendant’s roommates, testified that on the morning in question she came home about 2:45 A.M., heard defendant crying and that she heard her get up and go h> the bathroom; that witness went to sleep and half an hour or 40 minutes later woke to hear two or three baby cries, that at the time she did not know if she actually heard it or had dreamed it. She did not get up to investigate.

Defendant took the stand in her own behalf, testifying to her education, family background, employment, and the ascertainment on her part of her pregnancy. With reference to the events leading up to the birth of the baby her testimony for the most part closely parallels the two statements given the policewomen. When she cut the umbilical cord, she testified: “The arm of the baby slightly moved. Whether it was from a reflex motion of cutting the cord or not, I don’t know. I don’t remember the baby crying at all.” “And realizing the baby had not moved and not realizing whether it had cried or not, I baptized it with water from the faucet in the bathroom.”

She further testified that the water was cold water and that the baby did not move or cry when she baptized it. In answer to the question as to why she baptized the baby, she replied, “I baptized the baby because I thought it was dead. In fact, I was sure it was dead because it did not move.” She further testified that when she wrapped the baby in the beach towel she believed the child was dead.

On cross-examination defendant testified she had tied the umbilical cord as she had been taught, so that neither she nor the baby would suffer from the cutting of the cord, and that at least 45 minutes had elapsed after the birth of the baby before she wrapped it in the beach towel. She was asked “had you made any preparation for the care of this child after it was born?” Her testimony on this point was at best evasive.

On redirect examination defendant was interrogated on the difference between the first and second statements. She testified that insofar as the second statement differed from the first statement she did not remember telling the policewomen the things contained in the second statement and that chose things were not true.

Giving fair consideration to the testimony of the defendant, her signed statements and conversations with the two policewomen, the testimony of the roommate touching the cries of the infant, and the pathologist who expressed an opinion on the subject, we are of the opinion that the proof clearly established the fact that defendant’s baby was born alive.

In support of her second contention that the State failed to prove that the child came to its death by other than natural causes, defendant relies particularly on her own testimony and the fact that the pathologist did not and was not asked if he was able to ascertain medically as to what was the cause of death. The defendant, in testifying in her own behalf, said she made no effort to ascertain whether the baby was alive or dead, but that when she wrapped it in the beach towel she believed it was dead. In her second signed statement she said, “I made no effort to keep it alive and was not sure when I wrapped it in the towel whether it had died or was still breathing.” Yet the defendant wrapped the infant in the beach towel and placed it in a closed and locked overnight case.

There is no doubt that the infant was wrapped in a beach towel, and it is common knowledge that death by suffocation could have resulted from this act before the child was placed in the overnight bag. It is likewise common knowledge that the act of placing the infant in the overnight case and locking it in there would also be sufficient to cause death.

Regardless of defendant’s real belief, or the absence of actual malice, the reckless and wanton disregard for the welfare, safety and life of her infant daughter constitutes criminal neglect which, resulting in the death of the infant, is cognizable under section 145 of division I of the Code, (Ill. Rev. Stat. 1955, chap. 38, par. 363,) which reads as follows: “Involuntary manslaughter shall consist in the killing of a human being without any intent to do so, in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided, always, that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.” Where the evidence is such that the defendant might have been convicted of murder under this section, the defendant may nevertheless be convicted of manslaughter and cannot complain because the jury convicted her of the lesser offense. People v. Tilley, 411 Ill. 473, 479, cert. denied, 344 U.S. 824; People v. Carrico, 310 Ill. 543, 545-6. The question is principally for the jury.

As a further ground for reversal of the judgment herein, defendant contends that the trial court erred in giving and refusing instructions. Counsel presented to the court 88 instructions, the State offering 51, of which 37 were given, and the defendant offering 37, 27 of which were given as tendered. Many of the instructions were inapplicable, others were substantial duplicates. In People v. Burns, 300 Ill. 361, this court made observations that are strikingly appropriate: “Counsel have little room to complain of error in instructions where they burden the trial court with the labor of weeding out a lot of miscellaneous stock instructions in the short time available for this task of the court. Repetition should be carefully avoided in instructions in a criminal case. Enough instructions should be given to cover the law of the case and no more. When propositions of law are repeated in different language in a number of instructions there is a great danger of error and the repetition only tends to confuse the jury.”

For the State, the court gave three instructions on voluntary manslaughter. Instructions 40, 42 and 43 were, with the change of a few words, exact duplicates. Instructions 44 and 45 tendered on behalf of the State and given by the trial court define involuntary manslaughter in almost identical language. This court has often criticized this practice. People v. Heard, 305 Ill. 319; People v. Burns, 300 Ill. 361; People v. Moses, 288 Ill. 281; People v. Miller, 292 Ill. 318; People v. Sawhill, 299 Ill. 393.

To discuss other errors urged and argued would be to lengthen this opinion without resulting benefit. There is no complaint of the conduct of the State’s Attorney, the jury or the court. The proof adduced herein and the applicable legal principles have been considered with anxious attention, but we are forced to the conclusion that the case has been well and fairly tried and that no errors have intervened that would justify a reversal. We therefore affirm the judgment of the circuit court of Winnebago County.

Judgment affirmed.


author: Mr. Justice Daily

text:
    (No. 33938.
    Winston Burns, Appellant, vs. The People of the State of Illinois, Appellee.

      Opinion filed November 26, 1956.

      Winston Burns, pro se.

    Latham CasteE, Attorney General, of Springfield, (Fred G. Leach, and Edwin A. Strugaea, of counsel,) for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

In 1913, at a time when he was 17 years old, Winston Burns, to whom we shall refer as defendant, was indicted in the criminal court of Cook County for the crime of robbery. He entered a plea of guilty, which was persisted in after due admonition by the court, and was sentenced to the Illinois State Reformatory at Pontiac for a term of one to fourteen years. In August, 1953, more than forty years after his conviction, defendant filed in the same court what purported to be an application for a writ of error coram nobis wherein it was prayed that the judgment of conviction be set aside. The application was dismissed after hearing, and no appeal was taken. On August 29, 1955, defendant filed a second application, of like tenor, which was dismissed on a motion of the People which set forth: (1) that the application was not filed within the five-year period after judgment, required by section 72 of the Civil Practice Act (Ill. Rev. Stat. 1953, chap, 110, par. 196,) and (2) that the issues raised were res judicata by virtue of the dismissal of the prior application. This appeal has followed and inasmuch as the writ of error coram nobis has long been abolished in this State, (See: McKindley v. Buck, 43 Ill. 488,) we shall, as the court did below, treat defendant’s pleading as being a motion in the nature of a writ of error coram nobis as contemplated by section 72 of the Civil Practice Act, the purpose of which is to bring before the court matters of fact not appearing of record, which, if known at the time a judgment was rendered, would have prevented its rendition. People v. Touhy, 397 Ill. 19.

From the documents and brief filed by defendant in this court, we learn that he was convicted in the State of New York in 1946 for assault and sentenced to imprisonment for a term of ten to twenty years. As a result of that conviction he was, and now is, incarcerated in the Attica State Prison, Attica, New York. His claimed objective in now proceeding to set aside his prior conviction in this State, is to enable him to obtain a reduction of his present sentence, the term of which, he contends, is based in part on the said prior conviction. While it would appear at first blush that the passage of time has rendered moot the questions relating to defendant’s conviction in this jurisdiction, we are committed to the principle that the satisfaction of a judgment in a criminal case does not affect the accused’s right to a reversal of such judgment if it be erroneous, and if he makes a timely application for review. People v. Shambley, 4 Ill.2d. 38.

The judgment sought to be vacated is, however, not open to review in the manner attempted. Section 72 of the Civil Practice Act, (Ill. Rev. Stat. 1953, chap, 110, par. 196,) provides that the motion to correct errors of fact shall be made at any time within five years after the rendition of final judgment, provided, however, that the time a person entitled to make the motion is under legal disability shall be excluded from the computation of the period of limitation. In construing this statute we have held that a period of imprisonment imposed by the judgment is not such disability or duress as would stop the running of the limitation. (People v. Rave, 392 Ill. 435.) Here defendant’s motion has not been filed until some 42 years after judgment was rendered against him, 38 years after his legal disability of infancy had passed, and 28 years after the maximum limit of his term of imprisonment. Under the circumstance that there is no showing that defendant has been under a continuing legal disability since reaching maturity, we must hold that his motion is barred by the five-year period of limitation fixed by the statute. People v. Rave, 392 Ill. 435; People v. Sprague, 371 Ill. 627.

Although we have disposed of this cause on the pleadings, brief attention should be given to its merits. Defendant has presented no facts which, if known to the court, would have prevented the rendition of judgment against him, but advances as his sole ground for relief that he was not furnished with the assistance of counsel in violation of his constitutional rights. Although a motion is not available for the purpose of correcting errors at law, (People v. Sprague, 371 Ill. 627,) it is sufficient to point out that an additional record filed by the People to compensate for omissions from the record filed by the defendant, discloses that the latter was in fact represented by court-appointed counsel who was present in court when defendant’s plea of guilty was explained and accepted and judgment entered. Contentions based upon a faulty record cannot be sustained where the record is corrected by the filing of an additional transcript showing the true state of the record. People v. Walker, 409 Ill. 232.

The judgment of the criminal court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 33944.
    The People of the State of Illinois, Defendant in Error, vs. William Dayton Jones, Plaintiff in Error.

      Opinion filed November 26, 1956.

      William Dayton Jones, pro se.

    Latham Castle, Attorney General, of Springfield, and Carl D. SnEEd, State’s Attorney, of Marion, (Fred G. Leach, Edwin A. Strugala, and Robert L. Butler, of counsel,) for the People.
   Mr. Justice Daily

delivered the opinion of the court:

By an indictment returned on February 4, 1947, to the circuit court of Williamson County, William Dayton Jones, the defendant, was charged with having murdered his wife, Myrtle Jones, on December 21, 1946. Thereafter, on February 8, 1947, defendant appeared in court attended by counsel of his own choice and, after due admonition by the court, entered a plea of guilty. The court accepted the plea and subsequently sentenced defendant to imprisonment in the penitentiary for life. Appearing pm se and presenting only the common-law record, he prosecutes this writ of error to review the judgment of conviction.

As grounds for reversal he contends that numerous errors combined to deprive him of the fair and impartial trial guaranteed to him by the United States constitution. The first error assigned is that he was not given a preliminary hearing in the cause at any time before judgment and sentence. Inasmuch as defendant was tried on an indictment which contained full information concerning the crime with which he was charged, a preliminary hearing was neither required nor necessary. People v. Jones, 408 Ill. 89.

Further error assigned is, first, that defendant was not presented with a list of the jurors previous to arraignment and, second, that the court failed to hear evidence in aggravation or mitigation of the charge. From an examination of the record we find that both contentions are completely refuted by the recitals contained in the judgment of conviction, a matter which defendant failed to include in his abstract. It is a commonplace principle of criminal law that the common-law record imports verity and cannot be impeached or contradicted except by other matters of record. (People v. Brown, 3 Ill.2d 623; People v. Connors, 413 Ill. 386.) Inasmuch as no contradiction appears upon the points raised, we must conclude that they are without merit.

The balance of the errors assigned by defendant are: (1) that his counsel was incompetent; (2) that he was not afforded sufficient time to prepare his defense; and (3) that his counsel was not furnished a copy of the indictment until the day of defendant’s arraignment. It is manifest that none of such points are reviewable on the common-law record. A determination of whether an accused has been properly and competently represented by counsel can be made only from an examination of a bill of exceptions. (People v. Clifton, 408 Ill. 475; People v. Lantz, 387 Ill. 72.) Similarly it has long been held that where there is nothing in the record to show that a request for continuance was made or ruled upon, the defendant cannot, on review of the common-law record only, raise the question of the failure of the trial court to allow sufficient time to prepare for trial. (People v. Brown, 3 Ill.2d 623; People v. Saxton, 400 Ill. 257.) In the absence of a request for continuance the presumption is that defendant and his counsel were ready and desired an immediate trial. (People v. Kendall, 7 Ill.2d 570; People v. White, 300 Ill. 239.) The same result must be applied to the contention that defendant was prejudiced when his counsel was not furnished a copy of the indictment until the day of arraignment. Absent a motion and a ruling thereon by the court, preserved in a bill of exceptions, such a matter remains de hors the common-law record. Apart from this, we note that the only requirement of the Criminal Code is that a defendant be furnished a copy of the indictment “previous to his arraignment.” Ill. Rev. Stat. 1947, chap. 38, par. 729.

We do not find in this record that defendant was in any manner deprived of his constitutional rights to a fair and impartial trial. Finding no error, the judgment of the circuit court of Williamson County is affirmed.

Judgment affirmed.


text:
    (No. 33963.
    The People of the State of Illinois, Defendant in Error, vs. Leroy Jackson, Plaintiff in Error.

      Opinion filed November 26, 1956.

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

delivered the opinion of the court:

After a jury trial in the criminal court of Cook County, the defendant, Leroy Jackson, was convicted of murder and his punishment was fixed at death. Execution has been stayed pending writ of error proceedings in this court.

As grounds for reversal, it is contended that the proof is insufficient to support the verdict and that prejudicial error intervened at the trial.

The prosecution’s case was based in large part upon a 23-page written confession elicited from the defendant. Prior to trial, the defendant sought to have this statement suppressed, asserting that it was procured by force and abuse. After a lengthy hearing, the trial court denied his motion, and error is assigned on this ruling.

At the hearing on the motion to suppress, the defendant testified that he received beatings and other abuse from about every law officer involved. However, he presented no witness but himself in support of the charge, there was no medical or photographic corroboration, and he had told no one, including a preliminary hearing magistrate, of any such misconduct. In addition, he was flatly disputed by thirteen witnesses who had been with him at various times between his arrest and the signing of the confession.

The statement was taken by a court reporter in the presence of an assistant State’s Attorney (who did the interrogating), police officers Henry Jurgensen and Antone Prunckle, Dorothy Nichols and Ida Mae Wilson. The two women were prosecution witnesses, who subsequently testified at the trial. After transcription, the statement was signed in the presence of the court reporter, the assistant State’s Attorney, the two ladies, officer Jurgensen, and a homicide detective named William McCarthy. McCarthy was not present at the questioning; and Prunckle, who was, did not witness the later signing. All of the foregoing persons testified, and each in some material respect refuted the defendant’s claims.

On this record, the trial judge did not err in refusing to suppress the statement. (People v. Gavurnik, 2 Ill.2d 190.) Significantly, the defendant did not see fit before the jury to challenge the voluntary character of the confession, and it was admitted in evidence without objection.

Briefly, the confession establishes the following: At around 2 :io A.M. on April 9, 1954, the defendant burglarized the apartment of Mrs. Dorothy Nichols. He found little to take, but did leave with a small gun from Mrs. Nichols’ purse. However, he later concluded the gun “wasn’t real,” stating “I have never seen one like it before in my life.” And finding the gun would not work, he returned to the Nichols apartment, where he found a paring or potato knife. He took this knife along for use in another burglary. The defendant then walked to where the apartment of Louise Jackson was located, a distance of two blocks. (Although they bore the same family name, the defendant and Louise Jackson were not related.) He climbed a fire escape to the third floor, entered a window, found Louise Jackson in bed, and told her it was a “stick-up.” And in his own words: “She gave me a struggle so I stabbed her and run out the door.”

There was substantial corroboration of the facts related in the confession. Mrs. Nichols testified that the defendant admitted to her he had taken the knife during the burglary of her apartment and that he used it to stab the decedent. Three witnesses described finding the decedent, naked and bleeding from the breast, on the stairs in her apartment building. Three witnesses described her ransacked apartment. The two arresting officers testified that they apprehended the defendant on a Chicago bus, where he reached for a gun just before being taken. Eight witnesses testified to oral admissions of the defendant to the effect that he had stabbed the decedent with a knife. A pathologist’s finding that the decedent died of a knife wound in the chest was stipulated, and her brother was called regarding his identification of her body.

Exhibits admitted were the written confession, the knife, the Nichols gun, a photograph of the decedent, two photographs of portions of her apartment, and the gun the defendant had when arrested. The photograph of the decedent was indorsed by the defendant “this is the lady I stab” and signed by him. One of the room pictures was indorsed “this is the window I came in,” and the other “this is the door I left by.” Both were likewise signed by the defendant.

The defendant did not take the stand or adduce any evidence on his own behalf. The foregoing evidence, therefore, stands uncontradicted, and is sufficient to prove guilt beyond all reasonable doubt.

While a claim for outright reversal must be rejected, we are of the opinion that justice does require a remandment for a new trial. This follows from the fact that there were admitted in evidence certain hearsay statements attributed to the decedent and a photograph of the decedent taken after the autopsy. Under the circumstances, both matters were inadmissible and very prejudicial. It must be remembered that the jury in this case not only determined the question of guilt but also fixed the punishment itself. “The legislature has seen fit by statute to clothe juries with a wide discretion in determining the punishment to be suffered by one convicted of murder, varying from death, or imprisonment for his natural life, to a term of not less than fourteen years. This court has held that when one is tried for murder he has a right to stand before a jury unprejudiced by incompetent, irrelevant evidence and appeal to them to spare his life.” People v. Smith, 413 Ill. 218, 222.

We discuss initially the hearsay evidence. About an hour after the stabbing, the decedent was discovered, lying on the stairs leading to her apartment, by two friends who were also occupants of the building. Over objection, these witnesses, Lily Curry and Mary Mason, were permitted to tell the jury (in the words of Mary Mason) the following: “She told me that a little, short, skinny nigger * * * broke in on her. She said ‘He stabbed me with this knife.’ She said ‘He went all the way, I pulled it out myself.’ * * * She said he then ransacked her apartment, in all her drawers and in her trunk. I helped her into her apartment with Clyde Ewing assisting me. * * * She said she had been down there since 3 :oo o’clock. She said he kicked her down the steps. She says since 3 :oo o’clock she was trying to crawl back up the steps.”

The State concedes that this testimony was not qualified as a dying declaration, but it does contend it was part of the res gestae and therefore admissible as an exception to the hearsay rule. However, it cites but one case that is in any way analogous, State v. Peters, 90 N.H. 438, and that decision differs substantially from the case at bar. There the injured party was discovered almost immediately after the wound was inflicted and the statements could properly be termed “a spontaneous verbal reaction.” Here, there was a delay of at least an hour, and we have found no case in which statements made after such a lapse of time have been held admissible as a part of the res gestae.

The State argues, however, that even if the admission of this testimony was erroneous, it did not prejudice the defendant, inasmuch as it was merely cumulative. This is not borne out by the record. For one thing, Louise Jackson is quoted as saying the defendant kicked her down the stairs. There is no proof of this anywhere else in the record. The defendant, in his confession, categorically denied that he did so. Hence the testimony was not merely cumulative, and it was obviously very prejudicial to the defendant. The added circumstance of the accused kicking a woman down the stairs after stabbing her is calculated to inflame a jury and cause them to assess a more severe penalty than they might otherwise have done. We are unable to say that this inadmissible evidence could not have been a determining factor in the bringing in of the death penalty for this defendant.

In addition, the State was permitted to introduce in this case a photograph of the deceased taken at the hospital after the autopsy. It shows the face and neck of an obese Negro lady with her mouth slightly open and her eyes nearly shut. And there appear rather distinctly some of the sutures of the autopsic incision.

Whether the photograph of a deceased is properly admissible depends upon whether it has probative value, such as aiding a jury in the better understanding of medical testimony or aiding them in determining the manner in which the wound was inflicted. (See, e.g., People v. Donaldson, 8 Ill.2d 510; People v. Jenko, 410 Ill. 478; and People v. Jersky, 377 Ill. 261.) Mindful of the prejudicial emotion that might be aroused by the introduction of a victim’s photograph, the courts have, on the whole, been strict in their requirement that a proper purpose be shown for the introduction of such an exhibit.

The State seeks to justify the admission of this photograph on the ground that it constituted an admission, this resulting from the notation written on the photograph by the defendant. However, the defendant’s stabbing of the decedent was established in several other ways, and the photograph, at best, was cumulative. In this regard, it may be pointed out that the State was permitted to reopen its case, after the defendant had rested, for the purpose of introducing the exhibit. Therefore, it was clear at that time that defendant would not controvert the fact of the stabbing; and the only remaining use of the photograph from the State’s standpoint was to arouse the emotions of the jury so that they would administer a more severe penalty. This is particularly true in view of the fact that the photograph also displays a portion of the autopsic incision, a feature which accentuated its inflammatory character.

For the foregoing reasons, this case must be remanded for a new trial. But to guide the trial court, we consider additionally those other questions which are likely to come up again on a new trial, namely, the proof concerning the Nichols burglary, including the admission of the gun taken in that burglary, and the admission of the gun found on the defendant’s person when arrested.

As to the proof of the Nichols apartment burglary, it is settled that proof concerning such other offenses is not inadmissible when it shows or tends to show a particular intent or motive or the defendant’s connection with the crime charged. (People v. Murphy, 276 Ill. 304; 14 I.L.P., Criminal Law, sec. 343.) In the cited case, evidence of another murder was held properly admitted to show the connection between the weapon used in both murders and the defendant in the murder case being tried. Here, the knife and gun taken from the Nichols apartment were used in and to effectuate the burglary of the Jackson apartment. It was proper to show where and why the defendant acquired these items, one of them being the instrument of death in the homicide case being tried. And certainly the defendant cannot complain of the gun’s admission on the ground that he discovered it to be less effective than he had at first supposed. It was very material, in respect to his motive at the Jackson apartment where he next went, to show that this gun would not serve his purpose, so he went back and got the knife.

Likewise, it was not error to admit the gun found on the defendant’s person when arrested. The arrest was made on a Chicago bus. Just before the police officer seized the defendant, the latter had placed his hand under his coat, where it was discovered he had a loaded gun. It was this gun that was admitted in evidence. This court has held that where such a weapon is found on the person of a defendant, fleeing from or sought for the crime of murder, even though no claim is made that the accused used that weapon in committing the particular crime, the weapon may be the subject of testimony concerning the details of the arrest and also be admitted in evidence. People v. Lenhardt, 340 Ill. 538; People v. Durkin, 330 Ill. 394; People v. Dale, 355 Ill. 330. Cf. People v. Smith, 413 Ill. 218.

Finally, the defendant’s complaint of improper questtioning by the prosecutor is not well taken. Objections were frequent, but were carefully handled by the court.

The remaining matters complained of are not likely to reoccur upon a new trial, and there is no need to discuss them here.

The judgment of the criminal court of Cook County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Davis

text:
    (No. 33948.
    The People of the State of Illinois, Defendant in Error, vs. Paul Lewey, Plaintiff in Error.

      Opinion filed November 26, 1956.

    Paul Lewey, pro se.

    Latham Castle, Attorney General, of Springfield, and William H. Small, State’s Attorney, of Galesburg, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Davis

delivered the opinion of the court:

The defendant, Paul Lewey, was convicted in the circuit court of Knox County upon his plea of guilty to an indictment charging him with the crime of taking indecent liberties with a minor. Appearing pro se, he prosecutes this writ of error to review the sentence and judgment of the court, which he contends is not sufficiently specific and definite to enable the penal authorities to determine the period for which he is to be confined.

The judgment, after the formal finding of guilt, sentenced the defendant to confinement in the Illinois State Penitentiary System generally and ordered the defendant “there to be committed and confined for a period of not less than One (1) year nor more than twenty (20) years, unless sooner released by the due process of law, to be determined or terminated upon the recommendation of the Illinois State Department of Public Safety, and also subject to parole, transfer to any other penal institution of the State of Illinois, or be discharged as prescribed by law under the Statutes of this State in such cases made and providedand it further stated: “The Court now has hearing on mitigation or aggravation of the offense for the fixing of the minimum and maximum sentence to be served within the indeterminate limits fixed by Statute, and at the termination of said hearing, the Court announces that the minimum sentence to be served is fixed at not less than three (3) years and that the maximum sentence to be served is fixed at not more than ten (10) years * * Defendant contends that it is impossible to determine whether the foregoing language is a sentence from 1 to 20 years or from 3 to 10 years. He relies on the decision of this court in People v. Jackson, 399 Ill. 488.

A sentence imposed by the court upon a person convicted of crime must be certain as to the length of time and place of confinement, so that those charged with the execution of the judgment may know the penalty the court imposed. (People v. Jackson, 399 Ill. 488; People v. Roche, 389 Ill. 361; Ill. Rev. Stat. 1953, chap. 38, par. 802.) Where the judgment clearly shows that the trial court exercised its discretion to fix a minimum and maximum period of confinement within such limitations prescribed by statute, that will be regarded as controlling and the judgment is sufficiently definite notwithstanding the fact that reference is also made to the statutory limits of confinement. People v. Whitcomb, 8 Ill.2d 160; People v. Stucker, 5 Ill.2d 55; People v. Bellmeyer, 396 Ill. 552.

The record before us shows that the trial court conducted a hearing for the express purpose of determining what limits of confinement should be set within the statutory limits and that, following such hearing, definite limits were fixed by the court. The judgment is in form almost identical with that considered by us in People v. Grinnell, 411 Ill. 571, where at page 573 we held that: “The judgment should reveal with fair certainty the intent of the court so that those charged with the execution of the judgment may know the penalty the court imposed. The record in this case clearly indicates the trial court intended to exercise the discretion given it by law to fix a different minimum and maximum term of imprisonment than the indeterminate sentence provided by statute.” That observation is controlling here. For reasons assigned in People v. Whitcomb, 8 Ill.2d 160, 163, the Jackson case is distinguishable.

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

Judgment affirmed.


author: Mr. Justice Schaerer

text:
    (No. 33971.
    Luke N. Finnerty et al., Appellees, vs. John L. Neary et al., Appellants.

      Opinion filed November 26, 1956.

      HorrEmch & Hurrey, of La Salle, for appellants.
    Berry & O’Conor, of Streator, for appellees.
   Mr. Justice Schaerer

delivered the opinion of the court:

A decree of the circuit court of La Salle County construed the wills of Abigal Neary and Eliza Neary and fixed the interests of the plaintiffs and defendants in four parcels of real estate. Defendants appeal and the plaintiffs cross-appeal.

Abigal Neary died testate in 1892. She was survived by six children, John, James, Eliza and Alice Neary, Abby Einnerty, and Ellen Farrell, her only heirs-at-law. Plaintiffs are children and grandchildren of Abby Einnerty. Defendants are the widow, children and grandchildren of John Neary. James, Eliza and Alice Neary and Ellen Farrell all died without descendants. James Neary died intestate and his three sisters last named died testate. By inheritance and by devise the descendants of Abby Einnerty and John Neary have acquired interests in the land that had been owned by Abigal Neary. There is no dispute within the Einnerty family, and none within the Neary family. The controversy concerns the proper division of the property between the two families.

Both plaintiffs and defendants accept the decree to the extent that it relates to some of the land owned by Abigal Neary at her death. But neither plaintiffs nor defendants are satisfied with the decree to the extent that it fixes the rights and interests of the parties in the parcel known as tract II, on which valuable sand deposits are located, and plaintiffs’ cross appeal also challenges the decree with respect to parts of tract IV.

The principal dispute centers about the construction of the fourth and fifth clauses of Abigal Neary’s will. By the fourth clause she devised tract II to her daughters, Eliza and Alice Neary, “during their natural lives, said Eliza Neary to have the right to dispose of her portion said real estate in fee by her last will and testament.” By the fifth clause she devised another tract to her son John, and also “a one-half interest in any sand or clay pits that may be worked on the lands devised to Eliza and Alice Neary, one of which is now worked by Phelps and Phelps, also the right to take timber and coal for his own use from the land devised to said Alice and Eliza Neary. And the said John Neary shall have the right to dispose of said real estate in fee by his last will and testament.”

Thereafter, Abigal added a codicil to her will which provided: “In the fifth clause of my said Will I did among other things give devise and bequeath to my son John Neary a one half interest in any sand or clay pits that may be worked on the lands devised to Alice and Eliza Neary. Now I do hereby give devise and bequeath all of the interest in said sand or clay pits to said Alice and Eliza Neary share and share alike.”

Plaintiffs contend that by the fourth and fifth clauses of Abigal’s will, and by the codicil, Eliza Neary took a life estate in one half of tract II with the power to dispose of that half by her will, and that her sister Alice took only a life estate in the other half without any power of disposition, by will or otherwise. The latter half interest, on this theory, descended as intestate property to the heirs-at-law of Abigal Neary. Defendants contend that these provisions read together show an intention to give Eliza and Alice equal interests in the sand deposits on the lands devised to them. The gist of their contention is that Abigal Neary severed the sand deposits and treated them as a separate estate, and devised the fee in the sand to Eliza and Alice. The chancellor determined this issue in favor of the plaintiffs, and in our opinion he was correct in doing so.

Defendants point out that under the construction adopted by the chancellor, the one-half interest in tract II devised to Alice Neary for life remained intestate property, and they argue that a construction that produces such a result should be avoided. They urge that the provisions of the codicil which increased the devises to Abigal’s other daughters, Ellen Earrell and Abby Finnerty, from a life estate to a fee sustain their position. They suggest that the purpose of the entire codicil was "to place the gift of property to her daughter Alice Neary on the same basis as the devise to her daughter Eliza, giving them both a fee, and increasing the life estate to her other two daughters, Abby Finnerty and Ellen Farrell, to a fee.” They direct particular attention to the words, “Now I do hereby give devise and bequeath all of the interest in said sand or clay pits to said Alice and Eliza Neary share and share alike,” and they urge that the words “share and share alike” indicate how it was intended that the beneficiaries participate in the property, and that when the testatrix devised “all of the interest in said sand or clay pits to said Alice and Eliza Neary share and share alike” she must have intended that each take the sand and clay pits in equal shares. Defendants also argue that if Abigal intended by the codicil only to revoke the devise made to John Neary in the fifth clause of her will of “a one-half interest in any sand or clay pits that may be worked on the lands devised to Eliza and Alice Neary,” it was not necessary to mention her daughters in the codicil. A simple revocation of the provision for John Neary in the fifth clause would have accomplished that purpose.

The fourth clause, standing alone, disposed of tract II, including all interest in the sand. The fifth clause gave her son John “a one-half interest in any sand or clay pits that may be worked on the lands devised to Eliza and Alice Neary, * * It is upon this language that defendants contend that a separate estate was created in the sand. Separate estates may be created in minerals, as defendants state, and such separate estates are deemed real estate. (Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241; Kinder v. La Salle County Carbon Coal Co. 301 Ill. 362.) We incline strongly to the view, however, that the fifth clause shows no more than an intent to give her son John one half of the income from such sand and clay pits as might be worked during his lifetime, that he was to have no interest in any sand until sand was mined, and that no separate estate was created. But we do not specifically decide that question, for the outcome is the same whichever way it is decided.

Defendants’ argument that the construction adopted by the trial court results in partial intestacy is not convincing. There is partial intestacy under any construction. The codicil does not purport to revoke the fourth clause of the will. Under the interpretation urged by defendants, Alice Neary would have received only a life interest in tract II with no power of disposition under the will, but would have received a fee interest in the underlying sand with power of disposal. No purpose to be served by such a discrimination is suggested and nothing in the language of the codicil shows such an intent. The codicil deals with the interest given to John in the fifth clause of the will. Even if the will be interpreted as creating a separate estate in the sand, the interest devised to John was not a fee, and it was that interest that the codicil devised to Eliza and Alice, “share and share alike.”

When Abigal intended to create a fee interest, she knew how to do it. By the second clause of her will, she had made devises to Ellen Farrell and Abby Finnerty for life and after their death to their children “share and share alike in fee.” She made a like devise to her son James. By the fourth clause, she provided that Eliza Neary should have the right to dispose of her portion of tract II in fee by her will. By the fifth clause she made the same provision for her son John. By the second clause of the codicil, she provided that the property devised in the will to her daughters, Ellen Farrell and Abby Finnerty, for life be given to them absolutely forever, “to sell and dispose of the same as they see fit.” There is a complete absence of explicit language of this kind in the clause of the codicil on which defendants rely.

An examination of a photostatic copy of the original will confirms our conclusion. The draftsman wrote it in longhand. The fourth clause as originally drafted devised tract II to Eliza and Alice Neary “during their natural lives, they to have the right to dispose of said real estate in fee by their last will and testament.” An interlineation changed the fourth clause to give the property to Eliza and Alice Neary “during their natural lives, said Eliza Neary to have the right to dispose of her portion said real estate in fee by her last will and testament.” From the face of the will it thus appears that Abigal Neary intended to treat Eliza and Alice differently. To the one was given the power to dispose of the fee by her will; this power was consciously withheld from the other.

It is true that it was not necessary to mention Eliza and Alice in the codicil. But from the fact that the testatrix did mention them it does not follow that she intended the result for which defendants contend. Our task is to ascertain the intention of the testator and give it effect unless it violates an established rule of law or public policy. (Vollmer v. McGowan, 409 Ill. 306; Riddle v. Killian, 366 Ill. 294.) The provisions of the will and codicil are to be construed as a whole and effect given, if possible, to every part of both. In re Estate of Reeve, 393 Ill. 272; Jackman v. Kasper, 393 Ill. 496; 1 James, Illinois Probate Law and Practice, sec. 43.12.

An incident, quality, or condition which attaches to a bequest or devise by virtue of an express provision in a will likewise attaches to an additional or substituted bequest or devise under a codicil, except where circumstances present show a contrary intent on the part of the testator. (57 Am. Jur., Wills, sec. 610.) See, also, annotation, 156 A.L.R. 777, 799: “In the majority of the cases in which the question has arisen, a stipulation in a will that a legacy or devise was given in trust or for life has been held to attach to an additional or substitute legacy or devise under a codicil.” In our opinion this doctrine is applicable here. As we read the codicil we find no indication that Abigal intended to give Alice more than the life interest she received under the will.

A subsidiary question, raised by plaintiffs’ cross appeal, requires construction of the will of Eliza Neary. Her mother, Abigal, disposed of her real estate by legal descriptions. By oversight or otherwise Abigal’s will did not dispose of all of the land she owned, and some parcels descended as intestate property. Eliza Neary’s will did not contain any legal descriptions. She identified one parcel: “First: I do hereby give and devise my interest in the home where I now reside, and the thirteen (13) acres of land surrounding the same, to my beloved sister, Alice Neary, for and during her natural life.” In the second and third clauses of her will she devised the balance of her real estate, describing it as “all my interest in the lands devised to me by my beloved mother, Abigal Neary, * *

Plaintiffs contend that by this language Eliza intended to dispose of all of the property she received from her mother, whether under the will or by intestate succession. Defendants urge a literal construction, and assert that Eliza’s will disposes only of property devised to her under her mother’s will, and that it does not include any property which she acquired by inheritance from her mother. The trial court agreed with defendants and adjudged that the interests in land which passed from Abigal to Eliza Neary as intestate property also descended from Eliza as intestate property. We do not agree with that construction.

The question is whether Eliza used the word “devised” in its technical sense, or whether she used it in a lay sense to describe all the property that came to her from her mother, whether by will or by inheritance. Technical expressions are, of course, read in a lay sense where the testator clearly so intended. (57 Am. Jur., Wills, sec. 1143; see Caracci v. Lillard, 7 Ill.2d 382.) The word “devise” is not always used with technical accuracy, even by lawyers. This court, for example, in Sherman v. Flack, 283 Ill. 457, 460, described a direction in a will to sell real estate after the death of the testator’s widow as a “devise of money and not of land.” The word “inherited” has been construed as meaning “take” or “go to,” and so as sufficiently pervasive to include property taken by devise. 57 Am. Jur., Wills, sec. 1329; see Andrews v. Applegate, 223 Ill. 535.

Interests in three parcels of property owned by Abigal Neary were not disposed of by her will. Eliza inherited an interest in each of these parcels from her mother. The first parcel is that known as the Neary homestead. It consists of approximately 13 acres and it was vacant, unimproved property in 1892 when Abigal Neary died. Thereafter, a house was built on the property by Eliza and Alice, and was occupied by them as their home until the former’s death. Thereafter Alice lived there until her death. The first clause of Eliza’s will devised her interest in this property to Alice for life. In the second clause of her will she devised “all my interest in the lands devised to me by by beloved mother, Abigal Neary, * * * to my beloved sister, Ellen Farrell, for and during the term of her natural life, subject, however, to the rights of my sister, Alice, as mentioned in the first clause hereof, * * In this instance Eliza’s intention to include property which she inherited from her mother within the description of property devised to her by her mother is unmistakable.

The second parcel in which Eliza Neary acquired an interest as intestate property was a one-sixth interest in a small tract of less than 20 acres which is a part of tract IV. At the time of Abigal’s death the sand pit of Phelps and Phelps was located in the northeast quarter of the northwest quarter of a certain section of land. Abigal Neary, by the fourth clause of her will, devised the east half of the northeast quarter of the northwest quarter to to Alice and Eliza for life, and empowered Eliza to dispose of the fee in her half by will. Abigal’s will did not refer to the west half of this tract. In the fifth clause of her will, however, she said that the sand pit of Phelps and Phelps was located on the lands devised to Eliza and Alice. Actually, the Phelps and Phelps sand pit was located partially on the lands devised to Eliza and Alice and partially on the 20 acres immediately to the west. The fifth clause of Abigal’s will shows that she thought she was giving these two daughters all of the land on which the sand pit was located, although a part of it was not included in the legal description. It is not contended that Eliza took an interest in this property under her mother’s will. But we agree with the plaintiffs that these circumstances are effective to show that Eliza regarded it as property that had been devised to her by her mother, and intended to include it in her own will.

A third parcel not disposed of by Abigal’s will was the remainder that followed the life interest given to her daughter Alice. This remainder interest thus descended as intestate property and Eliza Neary inherited an undivided one sixth of it. This interest, of course, she obtained as intestate property. But Eliza had also obtained a one half interest in this same land by devise from her mother. Her will disposes of “all my interest in the lands devised to me by my beloved mother.” It is not restricted to the interests she received by devise from her mother. Therefore even under a strict construction this interest passed under her will.

The decree of the circuit court of La Salle County is affirmed as to the appeal prosecuted by defendants and reversed as to the cross appeal of plaintiffs. The cause is remanded with directions to modify the decree in accordance with this opinion.

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


text:
    (No. 33995.
    Elgin, Joliet and Eastern Railway Company, Plaintiff in Error, vs. The Industrial Commission et al.— (Roy Dixon, Defendant in Error.)

      Opinion filed November 26, 1956.

      Stephenson, Conaghan, Velde and Hacicbert, of Chicago, (Harlan L. Hacicbert, and Douglas P. Stevenson, of counsel,) for plaintiff in error.
    J. W. Koucicy, of Chicago, for defendant in error.
   Mr. Justice Bristow

delivered the opinion of the court:

Defendant in error, Roy Dixon, hereinafter referred to as the employee, was awarded compensation at the rate of $25.50 per week for a period of 42^ weeks under section 8(e) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1955, chap. 48, par. 138.8,) for the permanent loss of use of his right hand to the extent of 25% against plaintiff in error, the Elgin, Joliet and Eastern Railway Company, hereinafter referred to as the employer.

The arbitrator’s decision was affirmed and ordered to stand as the decision of the Industrial Commission. The superior court of Cook County affirmed this decision and quashed the writ of certiorari. The cause is here on writ of error by leave of this court.

The facts are not in dispute. On May 19, 1953, the employee was injured while he was working as a track laborer with a crew of men unloading creosoted railroad ties from one of two cars in the South Chicago Yards, which serve the United States Steel Corporation from which all shipments, inbound and outbound, move through Gary, Indiana. The employer’s supervisor of tracks testified that he kept the record book in which were recorded the numbers of two cars loaded with ties which arrived in the yards on May 18; that the cars were shipped from some place in the south via Gary, Indiana, the only route of ingress to and egress from the South Chicago Yard by rail; and that these particular ties were used in maintaining the tracks in the South Chicago Yards. On cross-examination, it was admitted that the witness had referred to notes made by him from the record book to refresh his recollection as to the identifying numbers on the cars, the date of arrival thereof and the fact that creosoted ties were shipped into the South Chicago Yard thereon. The employee complains that the arbitrator erred in permitting this witness, over objection, to testify from the copy of the record for the reason that the employer did not make clear and explicit proof that the copy was truly transcribed from the original, that the original was correctly made, and that it was true when made. The proof contained nothing in the way of bills of lading, waybills, receipts or other documents.

The sole question presented for review is whether the employee’s duties as a track laborer unloading railroad ties for later use in a railroad yard used for interstate and intrastate shipments bring him within the exclusive coverage of the Federal Employer’s Liability Act. (45 USCA, par. 51 et seq.) If so, the Industrial Commission lacked jurisdiction to enter an award in this case.

The employer had the burden of proof that the employee was actually engaged in interstate commerce or work that directly or closely and substantially affects interstate commerce. The employee contends that the employer has failed to sustain this burden by competent and substantial evidence.

The decisions of the Federal courts are controlling upon our court in the interpretation of a Federal statute. In Reed v. Pennsylvania Railroad Co. 351 U.S. 502, 76 S. Ct. 958, the United States Supreme Court stated that the 1939 amendment to the Federal Employer’s Liability Act evinces a purpose to expand coverage substantially as well as to avoid narrow distinctions to decide questions of coverage. In the majority opinion, the court construed the term “interstate commerce,” as used in the 1939 amendment, as being “any part” of the employee’s duties that is in “furtherance” of or that which substantially affects interstate commerce. The test for coverage is not whether the employee is actually engaged in transportation, but is the employee engaged in an activity that affects transportation.

In Ernhart v. Elgin, Joliet and Eastern Railway Co. 405 Ill. 577, this court, after considering the 1939 amendment, concluded that the criterion for the applicability of the act is still the work at which the employee is engaged at the time of the injury and that the Federal cases indulge in a very liberal interpretation in the classification of employments that are construed to be in furtherance of, and to directly or closely and substantially affect interstate commerce. In Pipal v. Grand Trunk Western Railway Co. 341 Ill. 320, we held that the unloading of interstate shipments is so closely related to “interstate commerce” as to be practically part of it. In Illinois Central Railroad Co. v. Industrial Commission, 414 Ill. 546, we held that a section hand engaged in cleaning a switch to a spur track leading to a factory doing predominantly interstate business, was as a matter of law exclusively under the Federal Employer’s Liability Act.

In Southern Pacific Co. v. Gileo, 351 U.S. 493, 76 S. Ct. 952, the United States Supreme Court held that the work of remolding wheels for inventory and for later use was within the coverage of the Federal act, stating “a certain level of inventory is indispensable to effective utilization of this mode of operation. The operation itself is a vital link in the chain of petitioner’s function as an interstate rail carrier.” This language is applicable to the case at bar. A supply of railroad ties for use in the maintenance of the yard, used both for interstate and intrastate commerce is a vital link in the chain of this employer’s operations.

After carefully considering the record, the conclusion seems inescapable that the facts in this case, interpreted in accordance with the foregoing decisions, indicate that the employee herein was engaged in work which, at least in part, furthered and substantially affected interstate transportation. The car which the employee was unloading at the time he sustained the injury had, as a matter of necessity, moved in interstate commerce for the reason that it could have only been moved into the yard from Gary, Indiana. The railways supervisor of tracks at South Chicago testified of his own knowledge as well as from his records that the cars in question had come into South Chicago from Gary, Indiana, and that he knew that Dixon was working on those cars. Thus, any error committed by the arbitrator in admitting testimony based upon original records not properly qualified, becomes harmless. The railroad ties being unloaded from the car were to be used, at least in part, in maintaining the yards, a vital part of this interstate transportation system.

We, therefore, hold that, as a matter of law, the employee was engaged in work within the exclusive coverage of the Federal Employer’s Liability Act, as amended, and that by reason thereof, the Industrial Commission did not have jurisdiction in this case. The superior court of Cook County erred in confirming the award of the commission.

The judgment of the superior court of Cook County is reversed and the award of the Industrial Commission is set aside.

Judgment reversed; award set aside.