text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Foster, Defendant-Appellant.
    Gen. No. 53,155.
    First District, Fourth Division.
    September 10, 1969.
    Rehearing denied October 24, 1969.

      Edward M. Genson and Louis S. Elovitz, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Earl J. Foster, was charged with the offenses of driving while under the influence of intoxicating liquor and making an improper U-turn. After a bench trial, he was found guilty of driving while under the influence of intoxicating liquor, and fined one hundred dollars and costs. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt.

The only witnesses at trial were the arresting officer and defendant. Officer George Betts of the Chicago Police Department testified that on August 2, 1967, he was proceeding south on Western Avenue, Chicago, in a squad car. Defendant, going north, made a sharp left turn in front of him, pulled through a driveway and attempted to go down an alley. The officer went down the other end of the alley and met defendant head-on, stopping him. Defendant smelled of alcohol, was unable to walk, and was belligerent. He was transported to the police station in a patrol wagon. Betts filled out an alcoholic influence report. Defendant answered certain questions, but refused to take any tests. Defendant told the officer that he was picking up his wife, and that he was coming from a friend’s home. He stated that he had drunk two bottles of beer during the evening, that he had been to a doctor recently, and that the doctor had prescribed tranquilizers. He had taken one tranquilizer about 2:00 a. m. the morning before. Betts testified that defendant’s eyes were bloodshot, the color of his face was normal, his clothes were mussed, his attitude was combative and indifferent, insulting and cocky. He had no unusual actions except that he refused to be placed under arrest and ran into a building where the officer had to wait until he came out. The officer also observed that defendant’s balance and walking were unsure, and that he was very thick tongued. The witness had been on the police department for seventeen years, and had seen about two or three hundred people under the influence of intoxicating liquor. In his opinion, defendant was under such influence, and was unfit to drive a vehicle at that time and place.

On cross-examination, the officer testified that he had related all the conversation which had taken place at the scene. It was possible that he had said to defendant: “Boy, where are you going?” and that defendant replied something to the effect: “Oh, no, the great white father is now going to lecture me.” He did not call defendant a “black son-of-a-bitch nigger.” He did not have an argument with defendant. Defendant wanted to argue, but he refused.

Defendant testified that he was married, had three children, and had been employed at International Harvester for nine years. He had never before been charged with the offense of driving under the influence of liquor. On the evening in question he attended a neighborhood meeting to discuss the maintenance of a stabilized and integrated community. At the meeting, which ended at 12:30 a. m., he had two Michelob beers. He went to pick up his wife, who worked at 6017 South Western, Chicago, across the street from where he was arrested. She finished work at 1:00 a. m. He was in the left lane, and signaled to make a left turn into a restaurant parking lot. He stopped in the driveway to the lot because he had noticed the police car and heard the siren. The officer came up and said, “Boy, where in the hell are you going?” Defendant then said: “Well, here we go, the great white father again.” One word led to another, and the officer decided to arrest him. Defendant walked over to ask some people in the doorway of his wife’s employer to inform his wife of what had happened. The officer informed him that he was going to call a wagon. While they were waiting for the squadrol, the officer kept whispering “you black nigger, you son-of-a-bitch,” and various other derogatory remarks. Defendant waited quietly, and went along peacefully. He refused to perform any tests at the station because he believed that he did not have a chance anyway. He did not need support, and no one helped him into the squadrol. In his opinion, the two beers had not affected his driving ability. He had been in the hospital for ulcers, and the doctor had prescribed tranquilizers about a week before this incident. It was possible that the combination of beer and a tranquilizer may have affected his ability to drive.

Officer Betts was recalled as a rebuttal witness. He may have called defendant a “black son-of-a-bitch” and “nigger.” He was provoked by defendant who kicked, hit and attempted to bribe him. He did not charge defendant with resisting arrest or for attempted bribery. This was the worst case of its kind he had seen in ten years. Defendant fell out of his automobile.

Defendant contends that he was not proved guilty of driving under the influence of intoxicating liquor beyond a reasonable doubt.

The State must prove beyond a reasonable doubt that defendant was under the influence of intoxicating liquor, but ordinarily it is the province of the trier of fact to weigh the evidence and to determine the credibility of the witnesses. People v. Mundorf, 97 Ill App2d 130, 239 NE2d 690 (1968). However, where the record leaves a reasonable doubt as to defendant’s intoxication, this court will reverse. People v. Mundorf, 85 Ill App2d 244, 229 NE2d 313 (1967).

At the time of the arrest, the officer’s initial question seemed to provoke a disrespectful answer and emotional outbursts followed. In this setting we must examine the officer’s opinion as to defendant’s intoxication. The police officer, in his original testimony, stated that he had not made any remarks of a racial nature, and that he had not argued with defendant. However, when called by the State in rebuttal, he admitted that he may have made such remarks. He also for the first time in rebuttal stated that there had been an attempted bribe and an assault on the part of defendant. Even though the officer had testified that this was the worst case of its kind that he had seen in ten years, he did not charge defendant with either attempted bribery, resisting arrest or assault. After testifying that defendant was so drunk that he was unable to walk, and in fact, fell out of his car, he testified that defendant ran into a building and then came out while the officer waited and that defendant refused to take any tests at the police station. These are glaring inconsistencies.

We conclude that the State’s evidence was so unsatisfactory as to raise a reasonable doubt of defendant’s guilt.

The State’s primary argument in this court in its brief and at oral argument has been that defendant was proved guilty of driving while under the influence of a drug, a violation of section 47b of the Uniform Act Regulating Traffic on Highways, which reads as follows:

“(b) No person who is an habitual user of or under the influence of any narcotic drug or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle may drive or be in actual physical control of any vehicle within this State. The fact that a person charged with a violation of this subsection (b) is or has been entitled to use such drug under the laws of this State does not constitute a defense against any charge of violation of this subsection (b).” (Ill Rev Stats 1967, c 95%, § 144-47b).

We deem it unnecessary to consider whether the evidence presented at trial could support a conviction for driving under the influence of drugs, since prior to trial, the State on its own motion, specifically deleted the words “narcotic drugs” from the complaint, and proceeded to trial on the charge of driving under the influence of intoxicating liquor. Moreover, the judgment order entered by the trial court set forth the specific finding that defendant was driving under the influence of intoxicating liquor.

Accordingly, the judgment of the Circuit Court is reversed.

Judgment reversed.

DRUCKER, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    In the Matter of the Estate of Rachel Gingolph, Deceased. Benjamin Gingold, Appellant, v. Jerry Gingolph, Administrator of the Estate of Rachel Gingoph, Deceased, Appellee.
    Gen. No. 53,400.
    First District, Fourth Division.
    September 10, 1969.

      Francis J. Mahon, of Chicago, for appellant.
    Richard P. Fredo and Arthur Rosenblum, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This action arose out of a petition filed on August 4, 1967, by appellant, Benjamin Gingold, seeking to vacate an order declaring appellee, Jerry Gingolph, the only heir at law and next of kin of Rachel Gingolph. The order declaring heirship and letters of administration were obtained by appellee on February 10, 1967, after a hearing at which he was the only witness. On August 4, 1967, appellant filed a petition to vacate the order declaring heirship and for other relief. On that date appellee made an oral motion for a surety bond; and also on that date a citation to discover assets was issued against appellant.

On August 10, 1967, the magistrate entered an order requiring appellant to file a surety bond in the amount of $50,000 “as security for costs and to secure the assets purportedly held by him in France.” On August 16, 1967, appellant filed a motion to vacate the order requiring bond, which was denied.

On March 15, 1968, appellant filed a motion to vacate all orders theretofore entered because of the incompetency of appellee to testify as to heirship, citing section 2 of the Evidence Act.

On March 19, 1968, appellee’s petition to dismiss appellant’s petition to vacate the order declaring heirship because of appellant’s refusal to file bond was granted. On March 22, 1968, appellant’s motion to vacate the order of March 19 was denied.

On April 11, 1968, the magistrate entered an order granting appellant leave to file an amended petition signed by his attorney to vacate the order declaring heirship, which was immediately done. There was no objection to this order. On April 18, 1968, appellant filed his own verified amended petition to vacate order declaring heir-ship along with a petition to vacate order setting bond. On May 10, 1968, appellee filed a motion to strike appellant’s petition to vacate the order setting bond and other orders and petition for other relief.

On June 5,1968, the magistrate entered his order denying appellant leave to substitute his own verified amended petition for that signed by his attorney, striking the amended petition signed by appellant’s attorney, filed April 11, 1968, and further denying appellant’s motion to vacate orders of the magistrate for want of authority.

Appellant makes three contentions on appeal: (1) where a dispute arises concerning who are heirs of a decedent, the testimony of a person interested in the outcome of the proceeding is incompetent evidence under section 2 of the Evidence Act, and an order entered based on that testimony is improper and should be vacated; (2) the statute requiring a nonresident to file a surety bond as security for costs does not apply to a person contending to be an heir in the administration of an estate; and (3) the denial of the motion to substitute appellant’s own verified petition to vacate the order declaring heirship for one filed by his attorney is an abuse of judicial discretion and contrary to the provisions of the Civil Practice Act.

Appellant first argues that the order declaring heirship is void because it is based upon the incompetent testimony of appellee who is prohibited from testifying under the provisions of section 2 of the Evidence Act, Ill Rev Stats 1967, c 51, § 2, citing Estate of Diak, 70 Ill App2d 1, 217 NE2d 106, in support of his contention. Diak is distinguishable from the instant case, however, in that in Diak the proof of heirship was contested at the time of the initial hearing whereas in the instant case there was no contest until appellant’s petition to vacate the order declaring heirship was filed some six months later. As the court said in Diak at page 6:

[A]n heir is competent to testify in a proceeding to establish the heirship of his ancestor where there is involved only a routine matter of establishing such heirship and where no contest arises as to who is or is not an heir. Although the heir has an interest in the outcome of the proceeding, there is no “adverse party suing or defending” in any capacity defined by section 2 of the Evidence Act, and consequently involves circumstances not covered by the Act.

Thus we hold that appellee was competent to testify at the uncontested hearing on proof of heirship and the order declaring heirship was not erroneous on this ground when entered.

Appellant argues further that he was entitled to notice of the issuance of letters and of the proof of heir-ship proceedings. This contention is without merit. As a nonresident of the United States appellant was not a person entitled to administer the estate or to nominate a person to administer, and as a brother of decedent he had no preference over a person claiming to be a child of decedent. Ill Rev Stats 1967, c 3, § § 94 and 96. Therefore, appellant is not entitled to notice of the hearing on the petition for letters of administration (Ill Rev Stats 1967, c 3, §99) or of the hearing on proof of heirship (Ill Rev Stats 1967, c 3, § 57).

Appellant next argues that the requirement that he post a $50,000 bond as security for costs and to secure the assets purportedly held by him in France was improper. The posting of security for costs is governed by statute, Ill Rev Stats 1967, c 33, § 1, and reads as follows:

In all actions in any court on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tarn actions, actions on a penal statute, and in all cases in law or equity, where the plaintiff, or person for whose use an action is to be commenced, shall not be a resident of this state, the plaintiff for whose use the action is to be commenced, shall, before he institutes such suit, file, or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form:

This statute is not applicable in the instant matter because the appellant has not, by filing his petition to vacate the order declaring heirship, commenced an action nor instituted a suit. The suit was instituted when the appellee petitioned for letters testamentary; appellant, by his petition, is in actuality replying to appellee’s petition and therefore cannot be deemed to have been a plaintiff or a person for whose use an action was commenced. We thus hold that there is no basis for requiring security for costs from appellant. Further, the statute quoted above does not cover probate matters. Its broadest term, “cases in law or equity,” has been held not to apply to statutory proceedings. Gabel v. City of Chicago, 37 Ill2d 532,229 NE2d 497.

An indeterminate amount of the bond was for the purpose of securing assets purportedly held by appellant in France. We can find no basis or power for the requirement of a bond for such a purpose. Article XV of the Probate Act, Ill Rev Stats 1967, c 3, §§ 183-187a, provides a procedure for recovering property belonging to the estate, to wit, a citation proceeding. If appellee fears the secretion of estate assets, then he should employ the Article XV procedure. It was improper for the court to require a security bond as a prerequisite for obtaining a hearing on appellant’s petition to vacate the order declaring heirship.

Appellant’s final contention is that the magistrate should have allowed the substitution of appellant’s own verified amended petition for the petition signed by appellant’s attorney. An attitude of liberality in the amendment of pleadings is the announced policy of courts of this state, Lahman v. Gould, 82 Ill App2d 220, 226 NE 2d 443; Ill Rev Stats 1967, c 110, § 46; and we can find no reason for not allowing the substitution of appellant’s own petition. Appellee argues that the same matter had been dealt with by the court in several prior petitions, but this argument is without merit because the magistrate had already granted leave to appellant’s attorney to file an amended petition and thereby had manifested his willingness to hear the matter again. In light of this permission to file an amended petition (which was not objected to by appellee) we believe the ends of justice would be furthered by allowing the appellant to file his own petition.

The cause is remanded to the Circuit Court with instructions to allow the substitution of appellant’s verified amended petition for the petition signed by his attorney and filed April 11, 1968, to grant appellant’s petition to vacate the order setting bond, and to thereafter proceed in a manner consistent with this opinion.

Reversed and remanded with directions.

ENGLISH and STAMOS, JJ., concur.

       No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any habitual drunkard, or person who is mentally ill or mentally deficient, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending ....


author: ME. JUSTICE SCHWAETZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert S. Carr, Defendant-Appellant.
    Gen. No. 51,209.
    First District, Third Division.
    September 11, 1969.
    Rehearing denied October 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE SCHWAETZ

delivered the opinion of the court.

Defendant was charged in separate indictments with unlawful possession and sale of a narcotic drug. The court found on a preliminary hearing that certain evidence had been obtained as a result of an illegal search of defendant’s apartment. That evidence was suppressed and the State later nolle prossed the indictment for possession. The case proceeded to trial by jury on the charge of illegal sale of a narcotic drug. Defendant was found guilty and sentenced to serve from ten to twenty-five years in the state penitentiary. He contends on appeal that improper argument by the prosecutor deprived him of a fair trial and that the court erred in permitting the State to show that he used an assumed name. As he does not contest the sufficiency of the evidence, only a short statement of the facts is necessary.

On September 26, 1964, Ben Coldwall, a police informant, told Sergeant Eobert Gats of the Chicago Police Department that he could make a purchase of morphine. Coldwall was searched, given four ten dollar bills whose serial numbers had been recorded and was driven to 114 North Parkside Avenue, Chicago, by Sergeant Gats and Detective William Nolan. At that address Coldwall went up to the defendant and a companion named Don Zork and the three entered apartment No. 103. Sergeant Gats walked along the north side of the building until he came to an illuminated window through which he was able to observe Coldwall, Zork, the defendant and a female companion in apartment No. 103. Coldwall gave defendant the four ten dollar bills for a cellophane package containing six white pills about half the size of a sugar cube. Cold-wall left the apartment and was met by Sergeant Gats at the front door of the building. They returned to the apartment and after gaining admission Gats identified himself and arrested the defendant.

Detective Nolan entered apartment No. 103 shortly after defendant’s arrest and was given the money and the cellophane package containing the six white pills. Upon his return to the police station he inventoried the evidence and sent the cellophane bag and its contents to the Police Crime Laboratory. He testified that the pills were very soft and brittle and that some of them had been crushed in handling. Sergeant Charles Vondrak, a police chemist, testified that chemical tests revealed that the six pills were morphine sulphate. He also stated that the contents of the bag appeared to be crushed tablets in a semipowdered form.

After defendant was arrested Sergeant Gats searched him and took his apartment keys. He used the keys to enter the apartment, which he searched and where he confiscated a quantity of drugs. The trial court found that to be an illegal search and seizure and suppressed evidence with respect to drugs obtained from the apartment.

Defendant denied selling the narcotics to Coldwall or receiving any money from him. He stated that he had been sitting with Zork’s girl friend while Coldwall stayed with Zork and was unaware of any sale of narcotics. Defendant also testified that he had returned to his apartment at 149 North LeClaire Avenue to get some money for pizza.

Defendant complains of six instances of improper argument on the part of the prosecutor. The first involves a misstatement of the evidence. Defense counsel had argued that there was a discrepancy between the white powdered substance offered in evidence and the six white pills half the size of sugar cubes described in the testimony. The prosecutor in closing argument for the State answered as follows:

“What is this talk about the six cubes of sugar? Where did that get in the evidence? From the lips of Carr. ‘Ben told me he was an informer. It really shook me.’ And the next thing he mentioned was that the policeman showed him six cubes of sugar and said that he found that—
“MR. ROSENFIELD [Defense counsel]: That’s not the evidence. I’m going to object to it. Coldwall said it was half the size of a cube of sugar.
“THE COURT: The jury heard the evidence. They will decide the facts.”

In point of fact the defendant did not testify as to the size r>f the pills. It was the informant Coldwall who described them and who testified that they were half the size of sugar cubes.

Defendant argues that there was a “discrepancy between the small amount of powder offered in evidence, and the six cubes, half the size of cubes of sugar, described in the testimony,” and that the prosecutor’s misstatement as to the size of the cubes deprived him of a fair trial. The State’s evidence established a continuous chain of possession from the time the pills left the defendant until they were introduced into evidence. The State also accounted for the fact that the pills had crumbled into a semipowdered form as the result of handling. We are unable to see how the defendant was prejudiced by the prosecutor’s comment that it was the defendant who stated that the pills were the size of sugar cubes when the evidence revealed that they were actually only half that size. If that slight error helped anyone, it helped the defendant who argued that the quantity of white powder offered in evidence was too small to have made up the pills described even if they had disintegrated. It could not affect the merits of the case and it does not warrant reversal. People v. Jenko, 410 Ill 478, 102 NE2d 783.

Defendant next argues that it was improper for the prosecutor to imply that the informant was being protected by the State. It was defense counsel however who stated in closing argument:

“We have Ben Coldwall, twenty-six years of age, who, since February, has been living at your expense. ... He hasn’t been in jail awaiting trial. ... He is over there in what they call the witness quarters; jargon has it the Sherman Hotel. But it’s across the street. It’s not the jail ... . it
“To this minute ... we don’t know who put up the $5,000 to take him from the Cook County Jail, where he belongs, and put him in the lap of luxury across the street.”

The prosecutor answered this in closing argument by stating:

“So he [Coldwall] is not living in any lap of luxury. He is there for a purpose. And you jurors didn’t leave your common sense outside the door when you came in.
“The defendant is on bond. He is out. What are your going to do; leave Coldwall outside, or are we going to protect him?”

Defendant contends that the prosecutor’s remarks require a reversal and in support he cites People v. Herbert, 361 Ill 64, 196 NE 821, and People v. Savage, 84 Ill App 2d 73, 228 NE2d 215. In Herbert the State elicited testimony on redirect examination that police officers were detailed to guard the complaining witness’ home just prior to the trial. The court found that the police guard had nothing to do with the crime for which the defendant was charged and held that it had no legitimate place in the case. In Savage the State commented in closing argument that it did not produce a corroborating witness because the defendants had threatened to kill any witness who testified against them. The instant case is distinguishable.

Here it was the defense which first argued that Coldwall was being held in protective custody. In such case it has been held that the State may argue the point in response. In People v. Hampton, 24 Ill2d 558, 182 NE 2d 698, the court held (p 561):

“And while under other circumstances it would have been highly improper to suggest that a prosecution witness had been held in custody to protect his life, the fact that Spaulding was kept in protective custody prior to trial was injected into the case by the defense on cross-examination. It thus became a proper subject for argument by the prosecution.”

We conclude that the prosecutor’s argument was responsive to comments made by the defense and was proper under the circumstances.

Defendant’s next contention is that the prosecutor in his closing argument improperly referred to suppressed evidence. The defendant had testified that just prior to the alleged sale of narcotics to the informant he had taken a taxi to his apartment to pick up some money so that he and his friends could order a pizza. The prosecutor argues that this story was improbable, saying:

“Now, do you really believe that this fellow all of a sudden left the place to run out to get some money for pizza? Or isn’t it more likely that after the phone call he went back to his apartment, to the cache, where he kept the narcotics, to bring it — ”
(Objection by the defense overruled.)

Defendant contends that the prosecutor in making that argument was referring to the narcotics which had been seized in the defendant’s apartment and later was suppressed by the trial court. He contends that the remarks would cause the jury to conclude that the prosecutor had personal knowledge of a “cache” of narcotics in defendant’s apartment and thereby got to the jury indirectly evidence which the court had suppressed.

A prosecutor is entitled to comment on testimony given by the accused and to draw legitimate inferences therefrom. People v. Potts, 403 Ill 398, 86 NE2d 345; People v. Kemp, 29 Ill2d 321, 194 NE2d 217; People v. Allen, 73 Ill App2d 256, 219 NE2d 653. In the instant case the prosecutor prefaced his argument with “Or isn’t it more likely that . . . .” It is clear that his statement was only the expression of an inference which he felt the jury should draw from the testimony presented. The statement in a hypothetical framework cannot, as the defense counsel suggests, be taken as an expression of personal knowledge by the prosecutor.

Defendant contends that the prosecutor improperly drew unfavorable inferences from defendant’s failure to call a certain witness who could have corroborated his testimony. The prosecutor argued to the jury that if defendant’s story were true, he would have produced Don Zork and the latter’s girl friend to corroborate his testimony. He also argued that defendant’s statement that he was employed by his father was not corroborated by his father. The rule is that the State may not in closing argument draw adverse inferences from a defendant’s failure to call a particular witness unless it is manifest that the witness is more accessible to the defendant than to the State. People v. Munday, 280 Ill 32, 117 NE 286; People v. Smith, 74 Ill App2d 458, 221 NE2d 68. The defendant in the instant case testified that he had known Zork all his life and that Zork had been going with the unnamed girl in the apartment for about a year. It is a fair inference that the defendant’s friends and his father were more accessible to him than to the State.

Defendant next contends that the evidence did not support the prosecutor’s argument that defendant had lied about his employment. Defendant had testified that he was employed by his father to take care of his property and to chauffeur him to see customers. On cross-examination he was unable to name any of his father’s customers. The prosecutor in closing argument questioned defendant’s truthfulness, arguing that if he worked for his father, he would have known some of his father’s customers. This was a fair inference to draw from the evidence and the prosecutor’s comment was proper.

Defendant also argues that the prosecutor improperly argued that the defense had obtained an excessive number of continuances. The prosecutor made the following statement:

“And Counsel states that he [the informant] is living over there [the witness quarters] at your expense, but he doesn’t tell you who kept continuing this case while he was living there.”

Defendant cites People v. Freedman, 4 Ill2d 414, 123 NE 2d 317, to support his contention. In that case the defendant was charged with indecent liberties with a child and the prosecutor in closing argument stated that defense counsel had advised the defendant immediately after the crime to become so inebriated as to appear incapable of the requisite criminal intent. That case has no application to the facts before us. In the instant case the remarks of the prosecutor were not improper under the circumstances. It is our conclusion that the defendant was not unduly prejudiced by anything in the prosecutor’s closing argument.

Defendant’s final contention is that the court erred in permitting the State to show defendant’s use of an assumed name. The State in cross-examination elicited from the defendant the fact that he had used an alias when he rented his apartment. Defendant argues that this was immaterial and served only to prejudice the jury. In the cases cited by defendant, People v. Dukes, 12 Ill2d 334, 146 NE2d 14; People v. Warfield, 261 Ill 293, 103 NE 979, and People v. Singer, 288 Ill 113, 123 NE 327, the defendant’s use of an assumed name had nothing to do with the issues in the case and was held immaterial. Here the defendant testified that he had gone to the apartment in question to get some money to buy a pizza. It was the State’s theory that he went there to get narcotics to sell to the informant. Renting the apartment under an assumed name had some relevance to its alleged use for illegal purposes. It was not improper for the prosecutor to ask the defendant if he had rented it under an alias.

We find no reversible error in the record and the judgment accordingly is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Appellee, v. Lawrence McCord, Appellant.
    Gen. No. 52,877.
    First District, Third Division.
    September 11, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE DEMPSEY.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Anthony Saunders, Plaintiff-Appellant, v. Burklen Wilson, Defendant-Appellee.
    Gen. No. 52,980.
    First District, Third Division.
    September 11, 1969.

      Paulson & Ketchum, of Chicago (H. Tim Hoffman, of copnsel), for appellant
    Garbutt & Jacobson, of Chicago (Donald G. Peterson, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This action was brought to recover for property damages to plaintiff’s car caused by defendant’s negligent operation of his automobile. The trial court entered judgment for the plaintiff in the sum of $6.94. Plaintiff takes this appeal from the court’s assessment of damages.

Plaintiff, a resident of Minneapolis, testified by deposition that on July 13, 1966, he was visiting in Chicago. He had parked his car on Prairie Avenue between 56th and 57th Streets, where it was struck by defendant’s car and pushed into a third car. Plaintiff witnessed the accident from a short distance away. He testified that as a result of the accident he had to have one headlight replaced and body work done on the rear of his car. The headlight was replaced in Chicago, for which a bill in the sum of $6.94 bearing a “Paid” stamp was produced and admitted into evidence. The remaining repairs were made in Minneapolis, for which a bill for $245.04 was produced. That bill bore no “Paid” stamp nor any other notation to indicate the receipt of payment, but plaintiff testified that both repair bills had been paid. The trial court held, however, that the absence of a notation of payment on the $245.04 bill rendered it inadmissible and limited the finding of damages and judgment to $6.94.

The sole question is whether the offer of an unreceipted repair bill and plaintiff’s uncontroverted testimony under oath that the bill had been paid is sufficient for its admission into evidence as proof of damages. Defendant argues that for the bill to be admitted as prima facie evidence it must bear some notation of payment. He cites a number of cases, but they do not support his contention. On the contrary, in Cloyes v. Plaatje, 231 Ill App 183, cited by defendant, the court said (p 192):

“[T]he price paid for repairing an automobile, where the work had been done by a person engaged in that line of business, nothing appearing to cast suspicion on the transaction, the bill presented by the repairman and paid, is presumptive evidence of the reasonable value of the repairs.”

Defendant asserts that this language supports his position because a repair bill that is purported to be paid but does not bear a “Paid” stamp is not regular on its face and thereby casts “suspicion on the transaction.” But it is not the bill which in itself provides the proof. It is the uncontroverted testimony of the plaintiff under oath that the repairs were necessitated by the accident, that the repairman was in the business of making such repairs, and that he paid the bill. Such a transaction is not suspect. It has long been the law in this jurisdiction that once a proper foundation has been laid, a paid repair bill is admissible. Byalos v. Matheson, 328 Ill 269, 159 NE 242; Cloyes v. Plaatje, supra. Testimony as to the fact of payment is also admissible. Wicks v. Cuneo-Henneberry Co., 319 Ill 344, 150 NE2d 276. No case has been brought to our attention in which it has been held that oral evidence supporting the bona fides of such a bill is inadequate in the absence of a notation of payment on the bill.

The judgment is reversed and the cause is remanded with directions to enter judgment in favor of plaintiff for the sum of $251.98.

Judgment reversed and cause remanded with directions.

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


author: JUSTICE SCHWARTZ.

text:
    In re Estate of Theodore B. Dukes. Maggie Oliver, Plaintiff-Appellant, v. Mattie Dukes Williams, Defendant-Appellee.
    Gen. No. 53,007.
    First District, Third Division.
    September 11, 1969.
    Everett Simpson, of Chicago, for appellant; William C. Ritter, of Chicago (Lawrence E. Haliburton, Clinton O. Sims, Glenn C. Fowlkes, and Joseph W. Handy, Jr., of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


text:
    James Legan, d/b/a Pink Mist Lounge, Plaintiff-Appellant, v. Illinois Liquor Control Commission of the State of Illinois, and Eugene Domingue, Liquor Control Commissioner of the Village of Hanover Park, Illinois, Defendants-Appellees.
    Gen. No. 53,253.
    First District, Third Division.
    September 11, 1969.
    Schippers, Betar & Lamendella, of Chicago (Joseph A. Lamendella, and David P. Schippers, of counsel), for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe, Donald J. Veverka, and A. Zola Groves, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order of the trial court which affirmed an order of the Illinois Liquor Control Commission (Liquor Commission) upholding the local liquor commissioner’s refusal to issue a liquor license to the plaintiff. Plaintiff contends (1) that he was prohibited from introducing certain evidence which would have established his right to a license, and (2) that the decision of the Liquor Commission was against the manifest weight of the evidence. In the view we take of the case only the first contention need be considered.

Plaintiff owned and operated the Pink Mist Lounge in Hanover Park, Illinois since June 1961. He testified that he had between fifteen and twenty thousand dollars invested in the business and that he paid $250 a month rent on a lease running through 1970. All liquor licenses were issued on a calendar year basis. On December 7,1967 an ordinance was enacted which provided that no Class A-l licenses would be issued and that the number of Class A licenses would be reduced from three to two. During 1967 plaintiff held a Class A-l license for which he paid $750. The difference between the two licenses is that in addition to the sale of liquor, a Class A-l license permits the operation of a dance hall on the premises. Plaintiff mailed his application for a liquor license on December 13, 1967. The application merely stated that it was for a license to sell “beer and liquor.” One week later the plaintiff sent a letter to Eugene Domingue, the village president and local liquor commissioner, in which he said he was applying for renewal of his Class A-l license. Domingue’s testimony however shows that he acted on the application as though it were for a Class A license, since no Class A-l licenses were available. Plaintiff’s application was considered along with two other applications made by licensees then doing business under Class A licenses. The dates on which the other two applications were received by the village clerk is not shown. It does appear however that one was not notarized until three days after plaintiff’s application was mailed and the other was notarized the day before plaintiff’s application was mailed. On December 26, 1967, after issuing two Class A licenses to the other two applicants, Domingue sent plaintiff a letter advising him there was no license available for him.

Plaintiff appealed to the Illinois Liquor Control Commission and a hearing was set for January 23, 1968. On February 16, 1968 the Liquor Commission entered the order affirming Domingue’s decision. Plaintiff’s petition for rehearing was denied on March 5, 1968 and the complaint for administrative review was then filed. On April 8, 1968 the trial court affirmed the order of the Liquor Commission.

Plaintiff contends that he was improperly prohibited from introducing certain evidence which would have established his right to a license. In support of that contention he cited several instances of what he considered to be improper exclusion of competent evidence. A careful examination of the record reveals that in all but one of those instances the evidence was either irrelevant or was introduced at some point in the proceedings other than that referred to and in some instances was not presented at the hearing, but was first urged in the petition to the Liquor Commission for rehearing. In one instance however the plaintiff’s argument appears to have merit. The record shows that he was not permitted to question Gail Alvera, a former waitress and manager of plaintiff’s lounge, about a conversation which she allegedly had with Domingue and one Barney Dowell in August 1967. After an objection to the testimony was sustained, plaintiff made an offer of proof that Mrs. Alvera would testify that Domingue said, “I am going to get [Legan] and I am going to get his license one way or the other. I want that license for myself.” Obviously, if true, this would be an admission showing bias. Plaintiff was not permitted to make that proof and the question arises whether this was such error as to require reversal and remandment.

The Administrative Review Act (Ill Rev Stats, c 110, § 275 (1967)) provides:

(2) Technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for the reversal of the administrative decision unless it appears to the trial court that such error or failure materially affected the rights of any party and resulted in substantial injustice to him.”

The error in this case cannot be considered as merely technical. If the testimony had been admitted and found credible, the result could well have been different. For that reason the judgment must be reversed and the cause remanded for such other and further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE ADESKO

text:
    Frank Mattera and Marie Mattera, His Wife, and Chicago Title and Trust Company, as Trustee Under Trust Agreement No. 47238, Plaintiffs-Appellees and Cross-Appellants, v. Village of Bridgeview, a Municipal Corporation, Merrille M. Miller, Village President, George J. Lata, Village Clerk, Joseph Berta, Sr., Richard Ralph, Robert Ferguson, Andrew Russell, John Zelena, and Lewis Talerico, as Trustees of the Village of Bridgeview, Illinois, Defendants-Appellants, and Cross-Appellees.
    Gen. No. 52,619.
    First District, First Division.
    September 15, 1969.

      Anthony Scariano and Michael Gubbins, of Chicago Heights, for appellants.
    Gierach and Dunn, of Oak Lawn, for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Plaintiffs, residents and owners of property within the defendant Village of Bridgeview, filed a complaint for a declaratory judgment, seeking as relief that Zoning Ordinance No. 63-1 of the defendant Village be declared invalid as applied to plaintiffs’ property. The case was tried without a jury and a decree was issued in favor of the plaintiffs. Defendants now appeal from the decree and from an order denying their motion to modify the decree. Plaintiffs have filed notice of cross-appeal. No questions are raised on the pleadings.

The parcel of land involved in this suit, Lot 229, was annexed to the Village of Bridgeview on January 24,1957. Since July of 1962, the plaintiffs have owned this real estate located at the Southwest comer of Harlem. Avenue and 83rd Street. The tract consists of two separate but contiguous parcels which were purchased by plaintiffs on August 23, 1961 and July 7, 1962. On these parcels in 1962, the plaintiffs established and conducted a model A Ford and used car sales, service and repair business. The property abuts Harlem Avenue for a distance of approximately 150 feet and 83rd Street for a distance of 283 feet. The most westerly portion of the tract contains a five-room residence in which the plaintiffs live, a portion of which is also occupied by other tenants. In addition to the residential structure, the tract is occupied by a storage shed and three garages which are utilized for plaintiffs’ business purposes.

There is a dispute as to when subject property had been zoned R-l; the plaintiffs contend that Ordinance 63-1, Article III, section 4, enacted February 28, 1963, is the correct ordinance creating the R-l zoning. Defendants contend the property was zoned R-l on January 24, 1957, the date of its annexation to the Village. On that date there was in force in the Village of Bridgeview, Ordinance No. 48-3, adopted February 24,1948, section 4-C of which provided that “all areas hereafter annexed to the Village of Bridgeview shall be classified as in the (R-l) District until differently classified by amendment.” Following the recommendation of the zoning commission, and after holding public hearings, the Village enacted Ordinance No. 63-1 on February 28,1963, which repealed Ordinance 48-3. Ordinance 63-1 made no change in the R-l zoning of plaintiffs’ property established by Ordinance 48-3.

In April, 1966, plaintiffs were informed that their property was within the corporate limits of Bridgeview and they thereupon applied for and were issued a Business License by the said Village for the period from May 1, 1966, to April 30, 1967. During the license year, plaintiffs were arrested for operating a business in violation of the Bridgeview Zoning Code. Plaintiffs petitioned the defendant Village for a B-l Business Zoning for their entire tract which was subsequently denied. A declaratory judgment action was filed in the Circuit Court of Cook County, and the trial court, after a full hearing and review of the evidence, held for the plaintiffs and incorporated in its decree the following findings of fact:

“1. That Plaintiffs’ entire parcel was used ‘for the storage, repair, service and sale of used trucks prior to February 28, 1963, when the Village zoned said property R-l, single family residential.’
“2. That the other three corners of Harlem Avenue (State Route 43) and 83rd Street are being used for commercial purposes and that the abutting property to the South is improved with an Electric Hi-Tension Tower and Line; and that the property abutting the Electric Hi-Tension Line on the South is zoned B-l Business to a depth of approximately 600 feet and that the abutting corner of Harlem and Route 43 occupied by All State Fence Company is zoned B-l for a depth of approximately 600 feet and that the abutting property to the North of Plaintiff’s property on the West side of Harlem Avenue for a distance of over one mile, is zoned B-l for commercial and business uses.”

The trial court declared the Village Zoning Ordinance unconstitutional as to plaintiffs’ parcel of real estate except for the West 83 feet thereof. Plaintiffs stipulated to accept this exception with the understanding that the Village would abide by the Decree. The defendants filed a motion to modify the Decree to restrict B-l use on the tract to a depth of 150 feet, but such motion was denied. Subsequently, the Village had a change of administration and thereafter filed this appeal to limit the zoning depth to 150 feet, as other business properties are uniformly restricted to such a depth to protect the residential property, churches and schools. Plaintiffs filed a cross-appeal to modify the decree to provide:

“(a) That Plaintiffs have a valid non-conforming use on their entire tract of real estate, and
“(b) That Defendants’ zoning ordinance is unconstitutional, null and void as to Plaintiffs’ entire tract of real estate.”

The defendants-appellants contend that by operation of Ordinance No. 48-3, the tract of land subsequently purchased by plaintiffs was zoned R-l, and the trial court’s findings were incorrect. We agree. The plaintiffs state in paragraph 5 of their complaint for declaratory judgment the following:

“5. That at the time of the acquisition of said real estate Plaintiffs were informed and believed that said real estate was located outside the corporate limits of the Village of Bridgeview; and that unbeknown to Plaintiffs said Defendant Village had passed an Involuntary Annexation Ordinance on January 24,1957, which purported to annex the real estate herein described and other real estate, a copy of which ordinance is attached hereto as Exhibit C.”

Exhibit C, attached and part of the record, reveals that Ordinance No. 57-4 annexed Lot 229 and other lots to the Village of Bridgeview, effective January 24, 1957. Ordinance 63-1 states in Article III, section 4, that “all property hereafter annexed to the Village shall be classified as a Class R-l district until this classification is changed by amendment to this Ordinance,” while Article XII, section 4, repealed the zoning ordinance of February 24,1948. Therefore, it appears that all property annexed to the Village of Bridgeview was to be classified Rr-1 until differently classified by amendment, and the tract of land purchased by the plaintiffs was zoned R-l at the time of purchase and is presently zoned R-l.

The determination of the nature of plaintiffs’ property is a complex proposition because the tract of land abuts both residential and commercial uses. Harlem Avenue to the North is an area of small business, while to the South its character is mixed. 83rd Street is an exclusively residential area as are the Northwest and Southwest quadrants of land formed by the intersection. The determination of a zoning classification is a legislative rather than a judicial function, and where there is a legitimate difference of opinion concerning the reasonableness of the classification, or where the question of reasonableness is fairly debatable, the courts will not and cannot interfere with legislative judgment, nor carve out and re-zone a portion of a tract of land. Bredberg v. City of Wheaton, 24 Ill2d 612, 182 NE2d 742 (1962). The Decree rendered in this case rezoned a portion of the tract of land in a manner directly contravening the Village’s plan to restrict B-l use on property fronting on Harlem Avenue to a depth of 150 feet and extended a business use into a residential area.

In our opinion the trial court erred in entering a Decree granting plaintiffs B-l use to a depth of 200 feet and in refusing to modify the Decree to restrict B-l use on the tract to 150 feet. Therefore, Paragraph 2 of Page 2 of the Decree of the trial court is amended as follows:

“That the Zoning Ordinances of the Village of Bridgeview as applied to the following described portion of Plaintiff’s real estate, to wit:
“The East 167 feet (except the South 150 feet thereof) of Lot 229 in F. H. Bartlett’s First Addition to F. H. Bartlett’s 79th Street Acres being a subdivision of the West half of the South East quarter of Section 31, and the West half of the North West quarter and the West half of the South West quarter of Section 31, Township 38 North, Range 13, East of the Third Principal Meridian, also the East half of the South East quarter of Section 36, Township 38 North, Range 12, East of the Third Principal Meridian, in Cook County, Illinois.”

In view of our holding, we find it unnecessary to discuss the cross-appeal and it is, therefore, dismissed.

Decree modified.

MURPHY and BURMAN, JJ., concur.


author: JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tommy Irby, Defendant-Appellant.
    Gen. No. 52,829.
    First District, First Division.
    September 15, 1969.
    Gerald W. Get-
    ty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr.,.Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Guyton, Defendant-Appellant.
    Gen. No. 52,860.
    First District, First Division,
    September 15, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant was found guilty of the offense of armed robbery in violation of chapter 38, section 18-2, of the Ill Rev Stats 1965. He was sentenced to the penitentiary for a term of three years to three years and one day. On appeal defendant contends (1) that the trial court erred in accepting his jury waiver, and (2) that he was not proved guilty beyond a reasonable doubt.

During the early hours of February 4, 1967, at about 2:00 a. m., William Gooden, while driving a Checker taxicab, picked up defendant as a passenger at 38th and State Street, Chicago. Defendant asked to be taken to 37th and Michigan and back again. When they arrived at 37th and Michigan, and after having conversed for awhile, defendant announced, “This is a stickup,” and placed a gun at Gooden’s back. Gooden immediately reported the robbery and, at about 2:30 a. m. in the police station at 48th and Wabash Avenue, he gave a statement of the robbery to the police, which included a description of the assailant, his clothing, and that he was about thirty years old. At a police station showup on the evening of February 4, 1967, Gooden identified defendant as his assailant. Gooden’s testimony included the details of the robbery and the showup. He identified defendant in open court and also stated that a gun shown him was similar to the one used by defendant in the robbery.

As to the showup, Gooden testified that a police officer called him and said they had arrested the man who had held him up and wanted him to come to the station to identify him. The showup consisted of five Negro men, all about the same height. When Gooden walked into the showup room, the five men were facing a wall with their backs toward him. Later they all turned around facing him, and Gooden recognized defendant in the lineup. The men were not of the same age — four appearing to be about twenty years of age while the defendant appeared to be about thirty; nor were the other men of the same skin color as defendant. Gooden also stated that the clothing on defendant at the showup was the same he had seen on defendant in the cab.

Police Officer George J. Linzy testified as to his arrest of defendant on February 4, 1967. He described defendant’s clothing and identified People’s Exhibit 1 as a revolver found on defendant. He stated a showup, consisting of five Negro men, was conducted at a police station on Sunday at about 6:30 in the evening. Gooden identified defendant as his assailant by placing his hand on defendant’s shoulder.

Police Officer Ralph Gibbon, who was assigned to make an investigation of the complaint, testified that he notified six different victims, including Gooden, to attend the showup. He told Gooden that “we wanted him to attend a showup and possibly make an identification of the person who had robbed him.”

Defendant testified and denied the robbery. At 2:30 a. m. on February 4, he was home in bed and asleep. On the evening of the 4th he was arrested at about 10:30 p. m. by two police officers as he was going into a barbecue place with two friends. He was searched and a gun was found on him which he had had since 1965.

A State rebuttal witness, William Tucker, testified that he was a cab driver. On February 4, 1967, he picked up defendant about 10:30 in the evening at 43rd and Ellis and drove him to 37th and Indiana. The defendant then produced a gun and robbed Tucker of his money. Tucker found a squad car, and a search led to the arrest of the defendant at 37th and Indiana, and defendant was then arrested. Tucker identified defendant in court.

Considered first is defendant’s contention that he did not understandingly waive his right to a jury trial in open court. At the trial defendant was represented by Mr. John Van Zeyl, an assistant public defender. The report of proceedings shows that when the case was called for trial, the following took place:

The Clerk: “Robert Guyton.”
Mr. Van Zeyl: “Let the record show on behalf of Robert Guyton I am tendering to the Court a jury waiver which has been signed by the Defendant.”
Mr. Motherway: “That’s for which indictment?”
Mr. Van Zeyl: “67-1351, I believe it is.”
The Court: “That’s the one on which we’re proceeding. Mr. Guyton, you have heard Mr. Van Zeyl advise me that you wish to waive your right to a jury trial and submit your case to this Court, meaning myself.”
The Defendant: “No, I asked for a bench trial all the time.”
The Court: “You’re waiving a j ury trial ?”
The Defendant: “I don’t want a jury.”
The Court: “That means I’m going to try the case. Do you understand that?”
The Defendant: “Yes.”
Mr. Van Zeyl: “Do you understand that?”
The Court: “I’m the one that’s going to try it, if you waive the jury.”
The Defendant: “Yes, that’s right.”
The Court: “Is that the way you want it ?”
The Defendant: “Yes.”
The Court: “It is my duty to advise you that under the law you have right to a jury, if you so desire. Do you desire a jury trial ?”
The Defendant: “No.”
The Court: “Knowing of your legal right to a jury trial, do you now wish to waive your right to a jury trial and have your case tried before me, by me?”
The Defendant: “Yes.”
The Court: “You want to submit your case to me alone, without a jury?”
The Defendant: “Without a jury.”
The Court: “So indicate that by signing the jury waiver Mr. Van Zeyl handed to you. It has been signed.”

Defendant asserts, “It is obvious from the record that he didn’t understand what these terms meant and it is impossible to arrive at the conclusion that he understandingly waived his right to a jury trial and was willing to submit his case at a bench trial, the meaning of which was not explained to him and the meaning of which he simply did not know. That he did not understand was amply demonstrated by one question and answer. These were as follows:

“The Court: ‘Mr. Guyton, you have heard Mr. Van Zeyl advise me that you wish to waive your right to a jury trial and submit your case to this court, meaning myself.’
“A. ‘No, I asked for a bench trial.’ ”

Defendant’s authorities include People v. Wesley, 30 Ill 2d 131, 133, 195 NE2d 708 (1964), where it is said:

“It has long been established that the State and Federal constitutional requirement of a jury trial is not jurisdictional, but is, rather, a privilege which a defendant may waive with the consent of the court, provided the waiver is expressly and understandingly made. . . . Equally well settled is the principle that it is the duty of the trial court to see that the election to forego a jury trial is expressly and understandingly made by an accused. . . . There is no specific or defined formula which the trier of fact is to follow, or from which to judge whether a waiver is understandingly made, and we believe of necessity that the determination must rest upon the facts of each particular case.”

Also, Patton v. United States, 281 US 276 (1930), where the court said (p 312):

“Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.”

We agree that the trial court has the duty to see that an accused person’s election to waive a jury trial is not only expressly but also understandingly made, and the performance of that duty cannot be perfunctorily discharged. If the jury waiver here was not understandingly made, this record does not demonstrate it. We are not persuaded that the defendant was confused or that he did not know what it was all about. The jury waiver was tendered to the court by defendant’s counsel, and the colloquy which followed definitely shows that defendant knew he had a right to a jury trial, which he desired to waive and to have his case tried by the court without a jury. Also, the trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he tendered to the court defendant’s jury waiver, it was knowingly and understandingly executed by his client. Defendant is not permitted to claim an alleged error which was invited by his behavior and that of his attorney. (People v. Novotny, 41 Ill2d 401, 408-9, 244 NE2d 182 (1968); People v. King, 30 Ill App2d 264, 268, 174 NE2d 213 (1961).) We find that defendant’s election to waive a jury trial was expressly and understandingly made by the defendant.

Considered next is defendant’s contention that his identification by Gooden was vague, uncertain and unsatisfactory in that Gooden “never once obtained a good clear view of the defendant’s face” because most of his opportunities for observation of the defendant were from the rear, and “everything leads to the conclusion that Gooden never got a good view of the man who robbed him.” Defendant also contends that the “lineup proceedings were irregular and improper and that evidence by police officers was admitted although it should not have been, and wrongful suggestions were made by the police to Mr. Gooden in regard to the defendant’s appearance at a lineup.”

The testimony of Gooden as to the details of the robbery showed that he paid particular attention to the defendant when the defendant first entered his cab, and he was able to describe defendant’s hat and clothing in that at the showup defendant had on the same clothing. Good-en also related several occasions on which he observed the defendant while receiving directional instructions from defendant. Finally, at one time the interior lights of the cab were on for about thirty seconds, and Gooden looked around and observed defendant pulling a gun.

In our opinion the record shows that the identification by the victim Gooden of defendant as his assailant on February 4, 1967, was positive, clear and convincing. Gooden had ample opportunity to observe the robber, and he was unshaken on cross-examination. The testimony of one witness alone, if positive and the witness credible, is sufficient to convict even though the testimony. is contradicted by the accused. People v. Miller, 30 Ill 110, 113, 195 NE2d 694 (1964).

Next considered is defendant’s contention that the showup at the police station was improper and highly prejudicial to defendant. Although the witnesses differed as to the date the lineup was held and its makeup, we are not persuaded that the showup was improperly conducted or that the notice to appear given to Gooden was prejudicial. If the lineup procedure followed here can be found wanting, we find no prejudice to the defendant. The “in-court identification” of defendant by Gooden was positive and based upon his personal observation of the defendant while the robbery was in progress, and it was not tainted by the lineup procedure. See People v. Dial, 95 Ill App2d 345, 356-7, 238 NE2d 122 (1968). We conclude that the identification evidence here was sufficient to support defendant’s conviction beyond all reasonable doubt.

Next considered is defendant’s contention that it was improper to permit the State’s rebuttal witness Tucker to testify as to another and different crime because defendant had testified as to his whereabouts on the evening of February 4. The defendant argues, “Tucker’s testimony in no way corroborated the alleged holdup by the defendant of Gooden, nor did it in any way prove that Gooden’s identification of the defendant was valid. It was merely to impeach the statements by the defendant as to his whereabouts at the time of the Tucker holdup.”

We agree that a separate and distinct offense cannot be proved in support of a prosecution for another offense. However, “evidence that tends to prove motive or intent, identity, knowledge, absence of mistake or accident, and the like, is admissible although it may also involve proof of a separate and distinct offense by the accused.” (People v. Harvey, 12 Ill2d 88, 91, 145 NE2d 88 (1957).) “The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged and any circumstances may be put in evidence which tend to make the proposition at issue either more or less probable. . . . where evidence is relevant and otherwise admissible, it is not to be excluded because it may also have a tendency to prejudice the accused.” People v. Galloway, 28 Ill2d 355, 360, 192 NE2d 370 (1963).

The testimony of the rebuttal witness Tucker was relevant here because it did impeach defendant’s testimony as to his whereabouts at the time of the Tucker holdup, and it was a circumstance which led to the arrest of the defendant and his identification as the assailant in the instant case. See, also, People v. Brown, 76 Ill App2d 362, 371, 222 NE2d 227 (1966).

In a bench trial in a criminal case, the determination of the credibility of the witnesses and the weight to be given their testimony is committed to the trial judge. A reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to a defendant’s guilt. (People v. Foster, 72 Ill App2d 337, 344, 219 NE2d 683 (1966).) All of the alleged reasons for rejecting the identification testimony of the victim Gooden were argued at length before the trial judge. From an analysis of the entire record, it is our conclusion that there was substantial evidence sufficient to establish defendant’s guilt beyond a reasonable doubt. We find nothing to justify the reversal of defendant’s conviction.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gustav Allgauer, Defendant-Appellant.
    Gen. No. 53,190.
    First District, First Division.
    September 15, 1969.

      SModowski, McLennon, McLennon and Nelson, of Park Ridge (Robert L. Sklodowski, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the

opinion of the court.

Defendant, Gustav Allgauer, appeals from a judgment of guilty of driving a motor vehicle while under the influence of intoxicating liquor. The evidence for the prosecution consisted of the testimony of one Anthony J. Filosa who testified that he was driving for one to one and a half miles about ten to fifteen car lengths behind the defendant, who was weaving from one lane to another, making it impossible for Filosa to pass him. Another witness, Victor W. Hansen, also testified that he too was driving behind the defendant, who was weaving back and forth for some distance. Both of these witnesses further testified that at the intersection of Touhy and Wolf Road in Des Plaines, the defendant ran his vehicle into a light standard and as a result became unconscious and was bleeding. The defendant’s automobile was demolished. A police officer who arrived at the scene testified that the defendant was slouched behind the steering wheel and was in an unconscious state. The defendant, after receiving first aid at a hospital, was then driven to a police station where he refused certain of the so-called visual tests. The police officer also testified that the defendant’s speech was slurred, his trousers torn, his lip bleeding, he walked unsure, needed support and that in the officer’s opinion, the defendant was under the influence of intoxicating liquor.

Donald Hofstetter, an employee in defendant’s restaurant, testified that the defendant left his place of business after 10:00 p. m., appeared tired, had a few drinks during the course of the day and in his opinion was not intoxicated or under the influence of any intoxicating beverages when leaving the premises.

Defendant contends that the State must prove that he drove an automobile at the time and place in question and that the defendant was then and there under the influence of intoxicating liquor. Section 144a of Chapter 95y% of the Ill Rev Stats (1965), provides:

“It is unlawful . . . for any person . . . who is under the influence of intoxicating liquor ... to drive any vehicle within this State.”

There was evidence that the defendant was driving a motor vehicle until he struck the light standard and that he was under the influence of intoxicating liquor.

There was evidence that his speech was slurred, his attitude indifferent, he needed support and was wobbly and unsure. In People v. Gamier, 20 Ill App2d 492, 156 NE2d 613 (1959) the court stated:

“Generally, circumstantial evidence which produces a reasonable and moral certainty that the accused committed the crime is sufficient to justify a conviction. . . . The test as set out in the Falkenberg case (5 Ill App2d 578, 126 NE2d 408) is ‘whether the whole evidence proves that crime was committed and the defendant committed it.’ We think the uncontradicted evidence here satisfies the test and justifies the court’s decision. In our opinion defendant was proved guilty beyond a reasonable doubt and this rule is the same ‘whether they [the crimes] be felonies or be misdemeanors.’ ”

Defendant also maintains that under the decision in People v. Miller, 28 Ill App2d 352, 163 NE2d 206 (1959), the finding in the instant case must be reversed for the reason that the testimony of Hofstetter was uncontradicted. Our reading of the record and the briefs shows that Hofstetter was contradicted by positive testimony and by circumstantial evidence. Furthermore, the trial judge was better able to determine the credibility of the witnesses and his judgment is not erroneous, there being no abuse of his discretion. We will not substitute our judgment for his.

Appellant further contends that the trial court erred in denying defendant’s motion for continuance for the reason that the doctor who treated the defendant at the hospital was unavailable at the time this matter was set for trial. It is within the trial judge’s discretion to determine whether a continuance be granted. In the instant case, the defendant was arrested on May 28, 1967. On June 28, 1967, the date set for hearing, the court continued the matter to July 26, 1967, on defendant’s motion. On July 26, 1967, the defendant again moved for continuance and the matter was set for September 20, 1967 at which time defendant demanded a jury trial at 1:30 p. m., when it was continued on the court’s own motion to November 15, 1967, at 9:30 a. m. On October 2, 1967, defendant waived trial by jury and this cause was transferred to District 3 for hearing on November 15, 1967 at 9:30. The record is silent as to a motion for continuance on November 15, 1967. It is entirely within the trial court’s discretion whether a matter be continued and we find no abuse of discretion and no error on the part of the trial court in hearing this matter on November 15, 1967.

Lastly, defendant claims that the trial court erred in not allowing defendant’s post-trial motion for new trial, in arrest of judgment and for stay of mittimus, and that the court’s finding was against the manifest weight of the evidence. His post-trial motion consists of allegations, none of which appear in the record or in the memorandum of the trial judge. Not having the benefit of a court reporter’s record of the proceedings, we are handicapped in passing on some of the defendant’s allegations contained in his motion for new trial. Considerable time elapsed between July 26, 1967, the first date set for trial and the trial date. Defendant had ample time to determine the availability of the doctor who treated the defendant. His testimony cannot be designated as new evidence.

Defendant contends in his motion for a new trial that he was not fully advised nor did he fully understand the effect of waiving a trial by jury. Actually he waived his right to a jury trial twice. On the day of his trial he again waived his right to a jury trial. He was represented adequately by counsel who apparently acquiesced in his client’s waiver of a jury trial.

The court will not substitute its judgment for the judgment of the trial court where the evidence proves defendant’s guilt beyond a reasonable doubt. The judgment of the trial court is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    June Briskin, Petitioner, v. Briskin Manufacturing Company, an Illinois Corporation, Lester I. Briskin and Elmer Kaplan, Defendants. Briskin Manufacturing Company, an Illinois Corporation, Lester I. Briskin and Elmer Kaplan, Counterplaintiff-Appellants, v. June Briskin, Counterdefendant-Appellee.
    Gen. No. 53,308.
    First District, First Division.
    September 15, 1969.
    Rehearing denied October 23, 1969.
    Russell J. Topper and Paul Freeman, of Chicago, for appellants.
    Ruskin and Rosenbaum, of Chicago (Harry H. Ruskin and Martin L. Bogot, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendants appeal from an order sustaining petitioner’s amended motion to strike and dismiss the defendants’ counterclaim. Petitioner, June Briskin, sought a writ of mandamus directed to Briskin Manufacturing Company, an Illinois corporation, Lester I. Briskin, its president, and Elmer Kaplan, its secretary, to permit petitioner to examine books and records of accounts, minutes and records of shareholders of said corporation and to recover from each of the three defendants, a penalty equal to ten percent of the value of the petitioner’s shares, provided by section 157.45 of chapter 32 of the Ill Rev Stats (1967). All of the defendants answered the petition for the writ and as part of the answer, defendants Briskin Manufacturing Company and Lester I. Briskin, individually, and as officer and director of said company, filed a counterclaim seeking $100,-000 as compensatory and exemplary damages from petitioner, with costs and expenses including attorney fees, pursuant to section 41 of the Civil Practice Act.

The counterclaim was based on the ground that the petitioner unlawfully misused and maliciously abused the judicial processes. She was charged with exposing the company and the Briskins to the instant mandamus suit and other judicial proceedings in various courts. The counterplaintiffs further charged that the purpose of the mandamus suit was to harass and coerce them into purchasing petitioner’s shares of stock in the Briskin Company.

Petitioner, June Briskin, moved to strike and dismiss the counterclaim because it introduced matters not germane to the petition for mandamus, that it failed to state a cause of action and that the various legal proceedings allegedly commenced by the petitioner were released.

In support of her motion, Petitioner’s attorney attached his affidavit which stated that he advised her that she had an independent right to attack the validity of a trust created by her deceased husband prior to their marriage as a fraud on her marital rights; that she then presented a petition to be dismissed in her individual capacity from the suit brought by the executor of her husband’s estate so that she would not be bound by the proceedings therein and that thereafter she filed an independent action in her individual capacity against Lester I. Briskin attacking the validity of said trust. This was the only suit or other proceeding brought by her in her individual capacity. His affidavit further stated that the intervening petition against the executor and its attorneys and the appeal to the First District of the Appellate Court were filed by her as guardian of her child and her action therewith was approved by the probate Division of the Circuit Court. Said affidavit concluded that the various legal proceedings involving the petitioner, June Briskin, were concluded after pretrial conferences and settlement negotiations by a decree of court.

Defendants-appellants contend that the counterclaim stated a cause of action in malicious use or abuse of process either for the many causes unsuccessfully prosecuted without probable cause or for the “special injury” or “special injustice” inflicted by such defeated actions based on false charges of fraud, conspiracy and illegalities against them. In Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 181 NE2d 601 (1962), it was stated:

“In civil cases where actions for malicious prosecution do lie, one of the essentials which must be established is the legal termination of the prosecuted suit in the plaintiff’s favor.”

In March v. Cacioppo, 37 Ill App2d 235, 185 NE2d 397 (1962) the court added:

“Other essentials are the malicious motives of the defendants and the lack of probable cause, ‘a prosecution upon a demand or accusation that has no foundation in fact.’ ”

Furthermore, in Caspers v. Chicago Real Estate Board, 58 Ill App2d 113, 206 NE2d 787 (1965), this court stated that allegations of annoyance, distress and harm to business experienced in defending an alleged unjust suit are not the type of circumstances that qualify either for a claim of “special injury” to sustain an action for malicious prosecution or to establish an ulterior purpose as an essential element for a cause of action in abuse of process.

None of these essential requirements necessary to the maintenance of a cause of action for malicious use of process or malicious prosecution are present in the counterclaim here involved. The litigations in which the petitioner became a party either as an intervenor or as a plaintiff were terminated by compromise, settlement and agreement of the parties. In Hargadine v. Sharkey, 8 Ill App2d 209, 131 NE2d 134 (1956), the Appellate Court stated at pages 226-227:

“The law is that where an action is terminated by agreement or consent of the parties thereto or by the procurement of the defendant to that action as a matter of favor, there is no such termination as is necessary to support an action for malicious prosecution.”

Defendants further claim that petitioner’s purpose for demanding and seeking by mandamus an examination of corporate books and records are not those alleged but “to harass and obstruct the management of the corporate business and affairs for the dominant ulterior purpose of coercing” a purchase of her shares. A reading of the petition for mandamus does not show any allegation that the purpose of the petition was other than the purpose for which it was designed — to compel the production of the corporate books. There is no showing of any irregular use of process or abuse of process.

We are mindful of the fact that appellant’s reply brief has questioned the appellee’s argument that the counterclaim presents matters not germane to the purpose of the mandamus proceeding. Section 2 of the Mandamus Act provides in part: “No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise.” (C 87, § 2, Ill Rev Stats 1967.) The purpose of the petition for mandamus in the matter before us was to enforce the petitioner’s right to examine the corporate books and records of the Briskin Manufacturing Company. The relief sought by the counterclaim was for money damages and has no relation to petitioner’s right of examination. It is not germane to that purpose and was properly dismissed.

Having affirmed the order of the trial court, it will be unnecessary to consider the third part of the appellee’s brief in which it is alleged that appellant’s brief violates rules of the Supreme Court and is replete with misstatements of fact.

The order sustaining petitioner’s amended motion to strike and dismiss the defendants’ counterclaim is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Wesley Johnson, Defendant-Appellant.
    Gen. Nov 53,447.
    First District, First Division.
    September 15, 1969.
    Robert C. Power, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant was found guilty of aggravated battery, and he was sentenced to the penitentiary for a term of three to five years. On appeal he contends that he was not proved guilty beyond a reasonable doubt.

The prosecuting witness, Quiller Ratcliff, testified that on June 28, 1967, at about 5:30 p. m., he went to the apartment of a man he knew as “Sonny Boy,” purportedly to see his girl friend of eight months, Bennie Will Shephard, who was Sonny Boy’s sister. After entering the apartment, Ratcliff went to the bedroom where Bennie Will was seated. There were other people in the front room, including the defendant, all of whom Ratcliff knew. As he emerged from the bedroom with his arm around the neck of Bennie Will, defendant said, “Don’t do that; that’s my wife.” Ratcliff removed his arm and walked toward the entrance door. When he reached the door, defendant started shooting. Ratcliff was struck by four bullets and fell to the floor. Defendant then stood over Ratcliff and said, “Don’t you know I’ll kill you ?” and shot Ratcliff for the fifth time, in the neck. Ratcliff was in the hospital for five months and was paralyzed from the waist down.

Bennie Will Shephard, as a witness for the State, testified that Ratcliff came into the bedroom, “pulled my arm, burned me with a cigar, used vulgar language and tried to pull me outdoors and took me into the living room.” She further said that Alberta Thomas, Dorothy Conner and Willie Williams were in the living room and Wesley Johnson was in the hall. As Ratcliff was pulling her out of the living room, Johnson told Ratcliff to turn her loose. She was turned loose, and she ran back into the bedroom and then heard shots.

Another witness for the State, Willie Williams, testified that Ratcliff came into the living room pulling Bennie Shephard, and Johnson told Ratcliff to turn the woman loose. Johnson then shot Ratcliff four times. As Ratcliff was pleading for his life Williams said to defendant, “Don’t kill the man, just like that,” after which defendant fired one more shot into Ratcliff.

Defendant testified in his own behalf that Ratcliff came out of the bedroom with his arms around Bennie Shephard like he was choking her, and “I told Ratcliff to turn Bennie loose and he did. Ratcliff went into his pocket and while he was coming out of his pocket, I shot him.” He further testified that Ratcliff was facing him when he shot, and “I did not shoot Ratcliff in the back.”

Defendant argues that the finding that defendant was guilty of aggravated battery is palpably contrary to the weight of the evidence and is so unreasonable, improbable or unsatisfactory that the reviewing court should substitute its judgment for that of the trial court and reverse the judgment. People v. Eyre, 83 Ill App2d 123, 227 NE 2d 120 (1967).

Defendant asserts that “Ratcliff came to get his woman; she refused; he became angry and threatened Defendant. A man who will beat a woman, burn her and use vulgar language can reasonably be considered dangerous by the man who attempts to protect her.” Defendant argues that the conduct of Ratcliff in going into his pocket was consistent with the criminal conduct of Ratcliff after he entered the apartment, and the conviction should not stand upon the sole uncorroborated testimony of an angry man who was proved a liar by the State’s witnesses.

Defendant further asserts that his testimony that Rat-cliff went into his pocket was an affirmative defense under chapter 38, section 7-1, Ill Rev Stats 1967, and it then became the burden of proof upon the State to prove beyond a reasonable doubt that defendant did not act in self-defense, and the testimony of defendant as to self-defense stands uncontradicted. Defendant cites People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965), where it is said (p 165):

“ [I] t is settled law that the burden of proof never shifts to the defendant, no matter what his offense may be, and where he pleads self-defense, it is sufficient to acquit him, if his evidence on self-defense, together with all other evidence in the case, creates a reasonable doubt of his guilt.”

As to the use of force in defense of person, it is said in chapter 38, section 7-1:

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

Also, section7-14 (Affirmative Defense) provides:

“A defense of justifiable use of force, or of exoneration, based on the provisions of this Article is an affirmative defense.”

As we view this record, the only issue is the credibility of the witnesses. In People v. West, 15 Ill2d 171, 154 NE2d 286 (1958), it is said (p 176):

“Where a cause is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded to their testimony is committed to the trial judge, . . . and unless it can be said the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable.”

In applying the foregoing guidelines here, we find no basis for substituting our judgment for that of the trial court. It is obvious that defendant’s testimony that he fired in self-defense after “Ratcliff went into his pocket and while he was coming out of his pocket” was rejected by the trial court as unworthy of belief. Also, the record shows that he was not justified in the use of force which was “intended or likely to cause death or great bodily harm,” because it was not reasonable for him to believe that such force was necessary to protect himself or Bennie Shephard. Ratliff had released her, and she testified she was back in the bedroom when she heard the shots. Also, defendant’s fear of great bodily harm was not a reasonable belief when he fired the fifth shot while Ratcliff was lying on the floor pleading for his life.

In People v. Peery, 81 Ill App2d 372, 225 NE2d 730 (1967), it is said (p 377):

“The right of self-defense does not permit killing in retaliation or revenge, nor does it allow the pursuit and killing of an aggressor after the aggressor abandons the quarrel.”

In a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt. (People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963).) Applying that test here, we conclude that the trial court was presented with satisfactory and plausible proof on which to find defendant guilty beyond a reasonable doubt of the offense of aggravated battery. People v. Lee, 96 Ill App2d 105, 112, 238 NE2d 63 (1968).

As we find nothing to justify the reversal of defendant’s conviction, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Dennis (Impleaded), Defendant-Appellant.
    Gen. No. 53,468.
    First District, First Division.
    September 15, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.