text:
    Lloyd L. Dilworth, Plaintiff-Appellant, v. Georgette Messenger and David B. Shapiro, Executors of the Last Will and Testament of Elmer Messenger, Deceased, and M. C. Hilmer, Defendants-Appellees.
    Gen. No. 53,479.
    First District, Third Division.
    March 5, 1970.
    Rehearing denied April 2, 1970.

      Myer H. Gladstone, of Chicago (Jacob Shamberg, of counsel), for appellant.

      Morgan, Halligan, Lanoff & Cook, of Chicago (Charles J. Morgan, Samuel M. Lanoff, and John A. Cook, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, Lloyd Dilworth, brought this action for an accounting against the defendants, Elmer Messenger and M. C. Hilmer, alleging the breach of an oral contract dealing with the drilling of certain oil wells. Prior to trial, defendant Messenger died and the executors of his estate filed their appearance. At the close of all the evidence, the master in chancery found that the plaintiff had failed to prove the allegations of his complaint by a preponderance of the evidence. The chancellor adopted those findings and entered a decree dismissing plaintiff’s complaint. Plaintiff appeals, contending that the decree was against the manifest weight of the evidence.

Plaintiff’s complaint alleged that defendants were partners engaged in the business of developing oil properties; that about August 1, 1951, defendants orally agreed that they would assign undivided fractional interests in certain oil and gas wells to plaintiff; that they would proceed to drill these wells and would charge plaintiff the actual pro rata cost of drilling and equipping these wells, and that plaintiff would receive his proportionate share of the receipts. By virtue of this agreement, defendants became the agents of plaintiff and owed him a fiduciary duty. The complaint set forth the various transactions, alleging that in each ease plaintiff paid a sum of money to defendants which they represented as his share of the drilling costs, and afterwards he paid additional sums for completing and equipping the wells. Plaintiff further alleged that the sums he paid were arbitrary and excessive, and exceeded the actual cost of drilling, completing and equipping the wells. He charged that defendants failed to disclose the true costs, and also failed to inform him of certain rebates received from various contractors.

Defendants in their answer alleged that plaintiff was to pay a fixed sum for original equipment and completion of the wells, and in return was to receive his share of the revenues and salvage value of the equipment; that plaintiff knew that the fixed sum was an approximation, and never objected to statements of account mailed after each drilling; that the fixed cost included services rendered by defendants in obtaining the leases and for other expenses. Defendants denied that they owed plaintiff a fiduciary duty, and alleged that each drilling was a separate and distinct agreement.

Certain facts and aspects of the relationships between the parties were undisputed. Defendants, Elmer Messenger and M. C. Hilmer, were partners engaged in the business of producing oil and gas. They would obtain oil leases in the State of Oklahoma, and sell or assign fractional interests in the leases to various investors, at times retaining fractional interests for themselves. Thereafter, equipment would be purchased and installed, and drilling would commence. The initial costs were supported by the original fractional investments. If the drilling produced no oil, the result was what is known as a dry hole. If there was a dry hole, the equipment would be salvaged and sold, the proceeds being divided among the investors. If the well was successful, additional operating charges were incurred, and copies of the monthly operating charges were sent to investors, including plaintiff. Initial amounts paid by investors and additional charges for completion and equipment were made in round numbers. However, monthly operating expenses were itemized, and each investor was charged his share of these expenses. Records indicated that the actual costs for drilling and completing a well varied. In some instances they were more than the investments; in others, they amounted to less. If a well continued to produce, an independent oil company would purchase the products, and the receipts of these transactions were credited to the investors according to their share. Plaintiff invested in some 64 wells between 1951 and 1959, 48 of which resulted in producing wells, and his total investment amounted to about $250,000.

The issue at trial was the determination of the nature of the transactions between the parties. Plaintiff contended that he was a joint venturer with defendants and was to share in the costs of drilling and completion in accordance with his fractional interests. Defendants contended that plaintiff purchased a fractional interest in each of the wells on the basis of a fixed price, with a supplemental fixed price for completion and equipment where oil was found.

Milton D. Rutherford testified for plaintiff that he had a conversation with Messenger in the spring of 1955 relating to the drilling of wells. Messenger stated the advantages of investing in these transactions and told him that he would get the same deal that plaintiff and the other investors were getting. Rutherford could obtain a fractional share of a lease and pay the actual costs of drilling, completion and equipment. Plaintiff was present, and verified that this was his arrangement. Rutherford subsequently invested in a number of wells. About 18 months later, in a conversation at which plaintiff and Messenger’s wife were present, Rutherford asked Messenger why there was never a refund on his initial investments. Messenger explained that it always cost a little more, but that he himself absorbed the loss.

On cross-examination, Rutherford testified that he was being sued by the Messenger’s estate for money allegedly owed and unpaid by him regarding the oil well transactions. He never asked for a refund with regard to the 34 wells in which he had invested.

Eugene F. Jewett, an attorney, testified for plaintiff that he had known Messenger since 1951 or 1952. In the spring of 1954, Messenger asked him if he would like to invest in an oil well, and stated that he would be billed on the same basis as plaintiff; that is, he would pay his share of the actual cost of drilling, completing and equipping the well. He subsequently invested in 23 wells.

On cross-examination, Jewett testified that generally, but not always, he would receive bills for the estimated cost before the drilling began, that drilling cost would be in round numbers; and that he would receive bills for completion and equipment charges before the well was completed and equipped. He never asked for or received a statement of actual drilling costs.

Herbert Ostrow, a certified public accountant, testified for plaintiff that in May 1960, at plaintiff’s request, he asked Messenger for the records of the drilling transactions in which plaintiff was involved. Messenger replied that he would allow the inspection of the operating accounts, but not those dealing with drilling and completion.

At the close of plaintiff’s case, defendants presented a motion for a decree in their favor. The master made provisional findings based solely upon plaintiff’s evidence; he made a report that plaintiff had produced sufficient evidence and denied defendants’ motion for a decree. The chancellor affirmed the master’s report and ordered defendants to proceed with their defense.

Fred Perrin, defendants’ bookkeeper, testified for the defense that he did the bookkeeping and accounting for defendants from 1955 to 1962. He took care of all the records which dealt with the drilling of various oil and gas wells. He was familiar with the accounts of plaintiff, Rutherford and Jewett. None of them were ever sent the actual cost of drilling, completion and equipment. He never discussed the terms of his investment with plaintiff, and plaintiff never requested the actual costs. He did have a discussion with Rutherford in 1957 as to the terms of his investment. He took a division order for Rutherford to sign at his office, and was asked what the actual costs were. Perrin told him that the actual costs had nothing to do with the preset price on the statements.

On cross-examination, Perrin testified that, generally, when Messenger retained an interest in a venture, he would not pay the same share as the other investors. He would, however, pay any difference between actual costs and total investment.

M. C. Hilmer testified on his own behalf that he and Messenger were partners in various oil ventures from 1953 to 1955. After he withdrew from the partnership, he invested in some subsequent drilling operations. He had known plaintiff since about 1948. In August 1951, he, plaintiff and Messenger had a conversation about oil drilling. Messenger stated that he would sell %6 interests for $2,000 in a well which he was going to drill. Both he and plaintiff bought interests that same evening. Hilmer never received any statements as to the actual costs of drilling the well. While Hilmer was in partnership with Messenger, plaintiff never asked for statements as to the actual costs of the wells.

Paul Stevens testified for the defense that he participated in 7 oil well investments with defendants. In 1955, in Oklahoma, he had a conversation with plaintiff and Messenger. Plaintiff said that he was leaving for Florida, that he did not want to be left out of the next few wells, and also inquired about the investment terms. Messenger stated that it would be on the same basis as in the past, about $2,000 for drilling and $2,500 for completion. Messenger explained that this was so because he had to stay down there and look after the wells and pick up the leases. Plaintiff asked Stevens whether he was satisfied with this arrangement, and he replied that he was.

Georgette Messenger, Messenger’s wife, testified for the defense that she kept the books and sent out all the bills on oil wells. Plaintiff never asked her for the actual drilling costs. She was present at two conversations between her husband and Rutherford in 1958 and 1959. At both conversations her husband asked Rutherford when he was going to pay the money he owed in regard to certain oil transactions.

Harry Bernfield, a certified public accountant, testified that he had done accounting work for Messenger since 1935. He had a conversation with Jewett and Messenger in February, 1956. Jewett indicated that he contemplated buying shares in some wells at a fixed price and wished to know the tax consequences. He was told that drilling and completion charges could be written off as intangible costs.

Rutherford testified for plaintiff in rebuttal that he did not know Fred Perrin, that he had never met him, and that Perrin had never been in his office for the purpose of giving him division orders. He usually received his division orders by mail from an attorney in Oklahoma; he took them home, had his wife sign them and then returned them.

Plaintiff testified in rebuttal that he knew Messenger for 30 years. He denied having a conversation with defendants in August, 1951, concerning the drilling of oil wells. He testified that he met Stevens in 1954, and that both defendants were present. He denied stating that he was going to Florida and that he did not want to be left out of the next few wells. He did not ask Stevens about his arrangement, or whether he was happy with it.

At the close of all the evidence, the master made a final report, and concluded that plaintiff had failed to prove the allegations of his complaint by a preponderance of the evidence. He found that the various investors, in-eluding plaintiff, were to pay a fixed sum for the drilling and completion of the wells, rather than their actual pro rata share of the costs of drilling and completion. He also found that defendants did not owe plaintiff a fiduciary duty , until oil production had commenced after completion of the well. The master further found that, since all of the witnesses, except Mrs. Messenger, were contradicted by other testimony, and since the various conversations took place up to ten years previously, a consideration of the documentary evidence was necessary. The master recommended that the complaint be dismissed for want of equity. The chancellor entered a decree approving and affirming the master’s final report, and dismissed plaintiff’s complaint.

On this appeal, plaintiff contends that the findings of the master in chancery and the decree dismissing the complaint for want of equity were against the manifest weight of evidence. It is well accepted that a master’s findings when approved by the chancellor will be disturbed only if they are manifestly against the weight of evidence. Ideal Trading Corp. v. 237 E. Ontario Corp., 82 Ill App2d 160, 227 NE2d 150 (1967).

At the outset, it must be noted that the master was not bound by the findings of fact which he made in his initial report at the conclusion of plaintiff’s case. At that time, defendants moved for a decree in their favor. In the light of the legal issue presented and the evidence then before the master, he made certain findings of fact which he emphasized were provisional. It is clear that the preliminary report was issued for a limited purpose only, and that was to determine whether the evidence then presented, when viewed in a light most favorable to plaintiff, set forth a prima facie case. That provisional report was in no way binding upon the issue presented and the findings made at the close of all the evidence. Since the issue on appeal is whether the final report of the master approved by the chancellor was against the manifest weight of evidence, we will not materially consider the preliminary report.

In urging that the findings and decree were against the manifest weight of evidence, plaintiff in effect argues that the testimony of his witnesses was credible and that of defendants’ witnesses was unbelievable. He maintains that as a matter of law the testimony of Eutherford and Jewett was credible and that the testimony of Perrin, Bernfield and Stevens was false and unworthy of belief. The master found that the testimony of the various witnesses was irreconcilable and contradictory in certain respects, that there were inconsistencies in their testimony, and that it was impossible to determine their relative credibility. We see no reason to disturb those findings.

With regard to those factual disputes, Perrin testified for the defense that in 1957, when he took a division order to his office, Eutherford inquired about the actual costs of drilling the well, thus indicating that Eutherford considered his investments to be on a fixed basis, and also contradicting his testimony that he was to pay only his share of the actual costs. Plaintiff urges that Eutherford’s testimony was more credible because he testified that he received the division orders by mail from an Oklahoma attorney, and had his wife, a joint owner, also sign them. However, the testimony of both witnesses was partially supported by documentary evidence. Plaintiff had introduced a letter from Perrin to Eutherford asking him to sign a division order. Consequently, the master was fully justified in refusing to find either witness more credible than the other. Nor did the failure of defendants to call the Oklahoma attorney as a witness create an inference, as plaintiff charges, that his testimony would be adverse to defendants. Defendants had presented Perrin’s testimony plus documents supporting that testimony, and had no duty to present additional testimony. Moreover, the master properly rejected plaintiff’s offer of proof that Perrin was biased in favor of défendants because the executors of Messenger’s estate had sold certain real estate to Perrin, which he in turn had sold at a profit. A profit at the expense of defendants would not indicate bias on the part of the witness in their favor.

The testimony of Jewett and Bernfield was also contradictory in some respects. Jewett testified for plaintiff that he was told by Messenger that his investment would be on the same basis as plaintiff, that he would be billed his share of the cost of drilling and completion. Bernfield testified for defendant that Jewett told him that he contemplated investments in oil drillings at a fixed price. The master found that both witnesses were credible, and he did not abuse his discretion in refusing to resolve the conflict in testimony. Plaintiff urges that Bernfield’s testimony was incredible, arguing that the conversation between Jewett and Bern-field could not have taken place because Jewett had already invested in some wells at the time of the conversation. However, this fact does not indicate that the conversation did not take place. Even after making investments, there would be many reasonable explanations as to why Jewett should talk to an accountant and tax expert in the oil field. We find no merit in plaintiff’s contention that Stevens’ testimony was false and should have been disregarded. While he misstated the exact amounts previously invested, the substance of his testimony, supported by Hilmer, was that plaintiff was aware that his investment was on a fixed basis rather than on actual costs.

Moreover, as noted by the master, the documentary evidence supported defendants’ contention that plaintiff’s investments were on a fixed basis. Drilling and completion expense bills were sent to all investors, including plaintiff. These bills contained the legal description of the land in question and the amount owed by the investor “for [his] interest in the drilling” of the well. These bills ordinarily were sent before the actual drilling was commenced. None of these bills indicated that they were conditional or subject to change after the drilling; rather they reflected that these transactions were sales of fractional interests for fixed sums. Nor were there any charges on the bills for obtaining the leases or for any of the other services performed by defendant. The assumption necessary to plaintiff’s argument, that defendant provided these services without consideration seems unreasonable. And in view of the course of these dealings, plaintiff’s contention that he thought these bills represented his pro rata share of actual costs is unrealistic. Additionally, plaintiff’s income tax returns for three years provided corroboration of defendants’ position. Each year plaintiff deducted the amounts he had invested in the various oil wells with defendants. If he believed that he was to pay his share of the actual costs, it would have been necessary for him to obtain a partnership statement from defendants and then indicate his share of the actual costs on his tax returns.

Plaintiff paid round sums for drilling to defendants for a period of ten years. He was never offered an adjustment or information as to the actual costs, and he never requested such information in writing until 1960. The inference from the course of conduct between the parties that plaintiff knew that he was not being billed for his pro rata share of the actual expenses is almost inescapable. The final report of the master and the ensuing decree are amply supported by the evidence.

Plaintiff also argues that the master erred in finding that the relationship between the parties became fiduciary only when oil production commenced after completion of the well. Up to that time, the master determined that the parties would be merely tenants in common, that there would be no duty on plaintiff to make additional monetary contributions, and that he would not be liable to creditors for debts incurred by defendants in the course of drilling. That finding is also supported by the record.

In Dunbar v. Olson, 349 Ill App 308, 110 NE2d 664 (1953), the court stated at p 312:

“Before a mining partnership exists it must be shown not only that there is a joint ownership of the property, but also a joint working and a joint operation of the lease involved, which must be shown by competent evidence (citation omitted). By joint operation is obviously meant that each of the joint owners must have some choice and participation in control and management.”

We believe that the above language is most appropriate in setting forth the requisites of a partnership under the facts of the instant case. Prior to oil production, plaintiff’s only function was the investment of money at a fixed price. He did not participate in the control and management of the operation; he had no liability to third parties; he was not obliged to make up any drilling deficit; and he had nothing to do with the acquisition or leasing of any of the drilling sites. Until oil production was commenced, there was no fiduciary relationship between the parties, and consequently, no duty on the part of defendants to make a full disclosure to plaintiff of all material facts.

The decree of the Circuit Court is affirmed.

Decree affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Curtis Stover, Defendant-Appellant.
    Gen. No. 53,526.
    First District, Third Division.
    March 5, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, 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.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Curtis Stover was indicted for the possession of burglary tools and for the attempted burglary of a gasoline station. In a nonjury trial he was found not guilty of possession, guilty of attempt burglary and was sentenced to the penitentiary for a term of one to two years.

The gasoline station was located on the southeast corner of Armitage and Kimball Avenues, Chicago. The south wall of the service station was on the north edge of an east to west alley and the back door of the station was on the alley side. An apartment building, which faced Kimball Avenue, was on the south side of the alley. Mary Eckert lived in one of the upper apartments and Paul Jankowski, a sergeant in the Chicago Police Department, lived on the first floor.

Late in the evening of April 12, 1968, Mrs. Eckert heard a noise in the alley. She went to the window and saw two men at the back door of the station. She telephoned Mrs. Jankowski, who aroused her husband. Jankowski looked out his bedroom window, which was directly in line with the southwest corner of the gas station. He saw two men at the rear door and one of them, whom he later identified as Stover, was prying at the door with a bar. As he observed them, an automobile driven by a neighbor, Elmo Roman, who parked his car at the station, came down the alley from the east. The auto’s lights illuminated the men and, as Stover turned toward the auto, Jankowski saw his face in the headlights. The men ran behind a trailer which was parked along the wall of the station. Jankowski took his service revolver and went out after them. After searching for a few moments, he found Stover lying facedown near a flower bed in the yard on the south side of his home. With his star in one hand and his revolver in the other, he told Stover he was a police officer and to stand up and face him. Stover got up, spun around and ran toward the wire fence on the west end of the lot. Jankowski chased him, caught him with one hand but could not hold him. Stover leaped over the fence and ran south on Kimball Avenue. Jankowski fired at him and wounded him.

Roman testified that as he drove west in the alley and approached the gas station, his headlights spotted two men behind the station. The men ran when the lights hit them and he did not see their faces.

The molding on the rear door of the station had been pried away and there were marks on the glass. A knife, a crowbar and a tire iron were found near the door.

Stover, an unemployed auto mechanic who lived in the vicinity, testified that on that evening he, a friend and two girls stopped in the parking lot behind the gas station to have a drink from a bottle of brandy. He did not see anyone else at the rear of the station. A car came on the station’s lot and someone hollered, “There’s the police, we had better get out of here.” They all ran because one of the girls was in violation of a City curfew. Two or three minutes later he was shot. He said the first time he saw Sergeant Jankowski was after the shooting, when Jankowski stood over him.

The defendant’s main argument is that his identification was so uncertain as to leave a reasonable doubt of his guilt. Positive identification by a single witness is sufficient to sustain a conviction if the witness is credible and if he had an ample opportunity to view the defendant. People v. Washington, 26 Ill2d 207, 186 NE2d 259 (1962). Jankowski saw the two men across the width of an alley. The alley was bright enough for him to see their clothing and complexions. He said the man who escaped was a Latin type and that he could describe his face. The faces of both men were illuminated when Roman’s automobile approached and this afforded him an adequate opportunity to observe the defendant, whose features he saw clearly in the headlights. The fact that Roman did not see their faces does not weaken Jankowski’s identification. He and Roman saw the men from different viewpoints—he from a few feet south, Roman from several feet to the east; his eyes were focused on their faces when the headlights shined on them, Roman’s were not. The defendant could have been clearly visible to one witness but not to the other.

Other evidence connecting the defendant with the crime further corroborated his identification. He admitted he was at the rear of the station and fled when the automobile approached. Jankowski found him hiding in a nearby yard. He attempted to escape when he was apprehended. From his flight and attempt to escape the court could have inferred a consciousness of guilt. People v. Lofton, 64 Ill App2d 238, 212 NE2d 705 (1965).

The defendant argues that doubt is cast on his guilt because the trial court refused to admit into evidence the tools which the State claimed were used by him in attempting to enter the building, and because the court found him not guilty of the charge of possessing these tools. Attempt burglary is the taking of a substantial step toward the unauthorized and knowing entry into a building with intent to commit a felony or theft. Ill Rev Stats 1967, c 38, §§ 8—4, 19-1. The crime of possession of burglary tools is the possession of any instrument suitable for breaking into a building with intent to enter a building and to commit therein a felony or theft. Ill Rev Stats 1967, c 38, § 19-2. It is possible to commit attempted burglary and not be in the possession of burglary tools under the Criminal Code. Although not receiving in evidence the tools which were found at the garage door and the finding of not guilty of possession do appear to be inconsistent with the finding of guilty of attempt burglary, the defendant should not complain that he was acquitted of a crime for which he could have been convicted.

In a nonjury trial, the trial court is the trier of fact. The court must determine the credibility of the witnesses and the weight to be accorded their testimony; the court’s finding will be reversed only when it is based on unsatisfactory evidence which creates a reasonable doubt of the defendant’s guilt. People v. Smith, 95 Ill App2d 235, 238 NE2d 186 (1968). The evidence showed the defendant was engaged in an attempted burglary and his guilt was proved beyond a reasonable doubt. The judgment is affirmed.

Judgment affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Jones, Defendant-Appellant.
    Gen. No. 53,609.
    First District, Third Division.
    March 5, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Stuart B. Scudder 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.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Charles Jones was charged with the crime of murder. After a bench trial, he was found guilty of that crime and sentenced for a term of 20 to 40 years. He appeals, contending that he was not proved guilty beyond a reasonable doubt; that the court erroneously excluded certain statements made at the scene; and that the failure by the State to call certain witnesses gives rise to an inference that their testimony would have been unfavorable to the State.

Cleophus Martin, a cabdriver, testified that at 4:00 a. m. on April 26, 1968, as he was driving, he noticed two men next to a blue 1961 Dodge apparently arguing over money. They looked as if they were going to fight, then one of them pulled out a gun and shot the other. The incident took place about 50 feet away from him in front of a tavern. There were about five or six other persons standing around the two men, including a girl. The victim was facing Martin and he did not see anything in the victim’s hands. He did not see the face of the man with the gun, who had his back to him. The assailant entered an automobile and drove off. Martin then drove away and flagged a police officer.

Robert Johnson, brother of the deceased George Johnson, testified that at the time in question, he was at a tavern with the deceased, two other men and a girl. As they left, Tommie Houston, defendant’s cousin, approached Johnny Dean and demanded money that he was owed. Houston pointed a gun at Dean; George Johnson, the deceased, gave some money to Houston who fired some shots and fled. The witness chased Houston, emptying a pistol at him during the chase. He could not catch Houston and returned. As he approached the automobile, he saw his brother and defendant arguing; then he heard a shot and saw his brother fall to the ground.

Defendant testified that he and a friend drove to a tavern, and he went in for a beer. As he came out, Johnny Dean hit him, shouting to deceased and his brother that defendant was a cousin of the man who had robbed him. As defendant walked to his car, deceased struck him and started to pull out a gun, so defendant shot him.

Thomas Houston testified for the defense that he met Johnny Dean at the tavern and demanded the money owed to him. Dean stated that he would get it from the deceased. The latter agreed to pay it and started coming toward them. Houston had deceased drop the money on the street and back off; he picked up the money and ran. Dean attempted to get a gun to shoot him. As Houston ran, the three men chased him, and deceased’s brother was firing shots at him.

Officer William Mooney of the Chicago Police Department testified in rebuttal for the State that defendant told him that as he came out of the tavern, he saw Houston being chased by some men, and another friend arguing with deceased. Defendant also stated that deceased struck his friend, and struck him. Defendant then drew his gun and shot deceased.

Defendant first contends that he was not proved guilty beyond a reasonable doubt, claiming that he acted in self-defense.

The credibility of witnesses is ordinarily a matter to be determined by the trial court. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963), and the determination of conflicting testimony is also a function of the trier of fact.

The evidence adduced by the State established that defendant shot the deceased while the latter was unarmed. The trial judge so found, and we see no reason to disturb that determination. Although defendant testified that the deceased was reaching for a gun and that he acted only in self-defense, defendant’s testimony was contradicted by the cabdriver who testified that he did not see any weapon in the possession of the deceased. Defendant’s testimony was also impeached by the police officer who testified that defendant gave a somewhat different version of what had transpired to him. We find that the evidence was sufficient to prove defendant guilty of murder beyond a reasonable doubt.

Defendant next contends that the trial court erred in excluding certain statements made to defendant and Houston by companions of deceased at the scene of the crime.

During his testimony, defendant was asked by his counsel to relate a conversation which he had with deceased’s brother. The trial court sustained the State’s objection, ruling that such a conversation would be hearsay. The court also struck as hearsay Houston’s testimony that somebody said they were going to shoot him, and his testimony that the deceased’s brother stated that defendant was Houston’s brother.

In order to preserve for review the question of whether evidence was erroneously excluded, an offer of proof as to what that testimony would be, and a ruling thereon, is necessary. See Miller v. Chicago Transit Authority, 78 Ill App2d 375, 223 NE2d 323 (1966).

In the instant case, after the ruling by the trial court that defendant’s conversation with deceased’s brother would constitute hearsay, the defense made no attempt to show what statement of the brother was sought to be introduced, nor did the defense inform the court as to the purpose of introducing the statement into evidence. Defendant now argues that the conversation should have been admitted in order to corroborate his contention that he used reasonable force in self-defense. He maintains that the statement would have revealed a communicated threat to defendant; that it was not presented for the truth of the statement, and thus was not hearsay evidence. However, the trial court was not presented any of this information, and indeed, this court is asked to speculate as to what the testimony would have been. Absent a proper offer of proof, the trial court properly excluded the statement. Moreover, the exclusion of the statement could not have been prejudicial to defendant. Defendant had presented ample testimony depicting his contention that he was threatened and that he was acting in self-defense. Similarly, the exclusion of the two statements in Houston’s testimony was not prejudicial to defendant. Even if it could be determined that such statements amounted to threats to defendant, their exclusion was harmless. Houston had already testified that deceased’s brother had fired shots at him while the three men chased him, and that Dean attempted to shoot him. The statements which were stricken would have added little to either an understanding of the facts or to the credibility of the witnesses.

A case cited by defendant in support of his contention that it was reversible error to exclude the testimony in question, People v. Johnson, 108 Ill App2d 150, 247 NE2d 10 (1969), is not in point. In that case, defendant was not allowed to testify as to his intention and motive in support of his argument that he was acting in self-defense. No such prejudice occurred in the case at bar.

Defendant also argues that the State’s failure to call other eyewitnesses to the crime should have resulted in an inference that their testimony would have been unfavorable to the State. However, in People v. Jones, 30 Ill2d 186, 195 NE2d 698 (1964), our Supreme Court held that the failure to call every witness to a crime does not give rise to a presumption in defendant’s favor. In the instant case, the State called two of the several eyewitnesses, and it was unnecessary to call the remaining eyewitnesses.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


text:
    Rochelle Bldg. Co., Inc., Plaintiff, v. Oak Park Trust & Savings Bank, Vincent DiVito, Lawn Savings and Loan Association, et al., Defendants, and Lawn Savings and Loan Association, Counterplaintiff-Appellee, v. Dee Bros. Builders Supply Co., Vincent DiVito, et al., Counterclaimant, Counterdefendant-Appellant.
    Gen. No. 54,270.
    First District, Third Division.
    March 5, 1970.

      George Erode, of Chicago, for appellant.
    Pope, Ballard, Kennedy, Shepard & Fowle, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal by Vincent DiVito from the dismissal of a counterclaim filed by him in the above captioned case.

DiVito, a subcontractor, was not paid for the labor and the material he furnished in the construction of an apartment building. His work was completed in March 1965 and in May of the same year he filed a claim for $1,336.-84 with the Recorder of Deeds of Cook County. He did nothing further to collect his debt until he was served by publication in the present suit—a foreclosure suit involving the same apartment building.

In December 1965, the plaintiff Rochelle Building Company, another subcontractor whose work had been finished in May 1965, and whose bill for $24,793.94 had not been paid, filed a complaint for the foreclosure of its mechanic’s lien. Rochelle named as defendants some twenty parties who had or claimed to have an interest in the premises—among them DiVito. On April 18, 1967, DiVito answered the complaint and filed a counterclaim which made all the other parties defendants. In the counterclaim DiVito alleged that he had entered into a contract to work on the property and had furnished services and material for which he had not been paid. He further alleged that his work under the contract was completed on March 13,1965.

In March 1969 the receiver for Lawn Savings and Loan Association, which had entered the case as the assignee of the beneficial interest in the land trust, filed a motion to dismiss DiVito’s counterclaim on the ground that it was not filed within two years following the completion of his work, as required by section 9 of the Mechanics’ Lien Act. The court sustained the motion and dismissed the counterclaim.

Section 9 provides in pertinent part as follows:

“if payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien by complaint or petition. . . . Any two or more persons having liens on the same property may join in bringing such suit, setting forth their respective rights in their complaint or petition; all lien claimants not made parties thereto may upon application become defendants and enforce their liens by answer to the complaint or petition in the nature of an intervening petition, and the same shall be taken as a counterclaim against all the parties to such suit. . . . Such suit shall be commenced or answer filed within two years after the completion of the contract. . . Ill Rev Stats 1965, c 82, § 9.

In a mechanic’s lien foreclosure suit all lien claimants must join as plaintiffs or be joined as defendants so that the trial court can adjust all equities and render a decree properly distributing the proceeds of the sale. Ill Rev Stats 1965, c 82, par 11; Leffers v. Hayes, 327 Ill App 440, 64 NE2d 768 (1945). The suit must be filed within two years after completion of the contract. A lien claimant who is made a defendant may obtain affirmative relief by filing an answer, but since his answer stands as a counterclaim and is the pleading by which he seeks to enforce his lien, it also must be filed within the statutory period of two years. The time limitation applies to subcontractors as well as to contractors, be they plaintiffs or defendants. Chapter 82, paragraph 28. The provision that suit must be brought within two years after the completion of the contract is a condition to the relief made available by the Mechanics’ Lien Act. Anderson v. Gousett, 60 Ill App2d 309, 208 NE2d 37 (1965). The rights afforded by the Act are in derogation of the common law and must be strictly construed. North Side Sash and Door Co. v. Hecht, 295 Ill 515, 129 NE 273 (1920). If a contractor or subcontractor does not file his suit within the two years, he has not availed himself of the special rights conferred by the legislature and he has, in effect, no right to a lien. Muehlfelt v. Vlcek, 112 Ill App2d 190, 250 NE2d 14 (1969).

DiVito argues that the two-year limitation in section 9 applies only to plaintiffs and to those claimants not named as defendants in the complaint. He points out that he was named as a defendant in Rochelle’s complaint and also in the counterclaim which was filed by Lawn Savings and Loan Association when it entered the case. He further argues that the limitation applies to the date a suit is commenced against a defendant, who then becomes a party to the foreclosure proceedings, and not to the date the defendant files his answer or counterclaim. In support of this argument he cites Alexander Lumber Co. v. Kellerman, 358 Ill 207,192 NE 913 (1934). That case, however, involved a different question. In Alexander suit was filed within the two-year statutory period, but service was not had upon certain defendants until after this time. The court held that filing suit within the two-year period fulfilled the requirements of the statute, and that it was not necessary within this time to acquire jurisdiction of the defendants.

The defendant’s arguments were resolved in Galloy v. Sparrow, 166 Ill App 197 (1911). In that case Tobin Brothers Company, a subcontractor, was named as a party defendant in a suit to enforce another subcontractor’s lien. It filed an appearance within four months after final payment was due under its contract, but filed an answer asserting its right to a lien after this period. The Mechanics’ Lien Act then was substantially identical to the present day statute, with the exception that subcontractors were required to file a suit to enforce their lien within four months after final payment was due, rather than within two years after completion of the contract. The Tobin Company urged that the filing of its appearance in the subcontractor’s suit was equivalent to filing its own suit under the. statute. The reviewing court rejected this argument and held that since the subcontractor, Tobin, had not commenced a suit or filed an answer or crossbill within the statutory period, it had forfeited its rights as a lien claimant.

In the present case DiVito also failed to take proper steps to assert his rights within the statutory period. He failed to file his own suit or an answer or counterclaim in Rochelle’s suit until more than two years after completion of his contract. By inaction he lost the right to a mechanic’s lien, and his counterclaim was properly dismissed.

Judgment affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie W. Steward (Impleaded), Defendant-Appellant.
    Gen. No. 53,589.
    First District, Third Division.
    March 5, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE ADESKO

text:
    Dorothy Clark, Plaintiff-Appellee, v. Claude Brown, Defendant-Appellant.
    Gen. No. 53,364.
    First District, First Division.
    March 9, 1970.
    Rehearing denied April 6, 1970.

      Harold Aling, of Chicago (Eugene Lieberman, of counsel), for appellant.
    Westbrooks, Holman & E. F. Johnson, of Chicago (Claude W. B. Holman, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This appeal was instituted pursuant to the Paternity Act (Ill Rev Stats 1967, c 106¾, § 1 et seq.). Plaintiff’s verified complaint was filed on January 28, 1963, alleging in Count I that defendant was the father of a .child born to the plaintiff and in Count II that defendant was indebted to the plaintiff for certain sums of money which she had loaned him. Counsel of defendant’s choice entered an appearance, asked for trial by jury and filed a verified answer to plaintiff’s complaint.

As to the paternity count, the defendant specifically denied that he was the father of the child in question; denied that the parties had sexual intercourse; denied that he had orally or in writing acknowledged paternity; and stated that plaintiff was a married woman at the time the child was conceived and at the time of birth. On February 15, 1968, defendant’s counsel were given leave to withdraw; on February 19,1968, the case was assigned for trial and on February 28, 1968, a hearing was held. The defendant was not given notice of this hearing and was not present. The trial court conducted the hearing without a jury and entered an order finding that defendant was the father of the child born out of wedlock. The order also recited that the court had been “fully advised” that on numerous occasions the defendant had acknowlédged paternity of the child. The second count for money loaned was nonsuited because of a discharge in bankruptcy.

Subsequently, on March 21,1968, the plaintiff’s motion to set the amount of support was continued to April 4, 1968, and the defendant was given five days to file any petition he desired. At this time defendant was present but without counsel. On April 4, 1968, the case was further continued and leave was given the defendant’s present attorney to file an appearance on his behalf.

On April 26, 1968, the defendant served notice and filed his petition under section 72 of the Civil Practice Act. The pertinent allegations stated that the trial court had proceeded without a jury despite a jury demand filed by the defendant. Plaintiff filed a motion to strike. On May 20, 1968, the defendant’s motion to vacate the judgment of February 28, 1968, was denied. Defendant then filed this appeal. The record does not contain any report of proceedings of the hearings conducted in this case.

The defendant contends that the judgment order was void since the case was tried at an ex parte hearing, without a jury, when the case was at issue upon the complaint and answer of the parties and a jury demand was of record. Defendant argues that notice of the hearing should have been given him and that without notice the jury demand could not be waived at an ex parte hearing. The defendant has relied upon cases which have held that when a plaintiff has waived a jury, the defendant must be advised so that the defendant may have the opportunity to demand a jury trial. Selvaggio v. Kickert School Bus Line, Inc., 46 Ill App2d 398, 197 NE2d 128 (1964); Skivington v. Lehman, 36 Ill App2d 479, 184 NE2d 785 (1962). Defendant argues that this requirement of notice should be followed even where the defendant’s jury was waived. The appellant contends that issues had been joined, which required a jury determination and that an “in absentia” hearing was improper under these circumstances.

The plaintiff states that the Paternity Act is a statutory cause of action and that the correct procedure was strictly followed in this case. No question as to the constitutional right to trial by jury is present since the cause of action under discussion was not recognized at common law. People v. Niesman, 356 Ill 322, 190 NE 668 (1934). Plaintiff argues further that the trial court was correct in proceeding without a jury since a paternity action is civil in nature so that any irregularity may be waived by a party. The argument is that due to defendant’s acknowledgment of paternity, as recited in the judgment order, there was no issue of fact for the jury to decide. Plaintiff further contends that the hearing was proper because the defendant was presumed to be present because of his bond obligation.

Plaintiff states that the defendant was voluntarily absent from court despite his obligation under the recognizance bond to be present for the specific case in question. We do not think that defendant was voluntarily absent. The record shows that defendant’s attorneys withdrew from this case four days prior to the assignment of this ease for trial. There is no question that no notice was given to the defendant for the assignment of this case. There is no merit in plaintiff’s assertion that the hearing was conducted properly. It appears from one of the cases cited by plaintiff, Anthony v. Gilbrath, 396 Ill 125, 71 NE2d 84 (1947), that a hearing “is generally understood as meaning a judicial examination of the issues between the parties, whether of law or of fact.” Gilbrath, page 128. We understand this to -mean that the litigants for each side of a case have been heard. In the instant case there is no doubt that the hearing was conducted ex parte.

Throughout plaintiff’s brief there have been numerous references to the judgment order which found that the defendant had acknowledged paternity of the child. The trial court was so “advised” solely by the plaintiff. That finding has been questioned by the defendant because the answer filed on his behalf specifically denied paternity. The Paternity Act sets forth the type of acknowledgment that will be accepted in order to support such a finding. The statute provides, “where the person accused has acknowledged the paternity of the child by a written statement made under oath or affirmation or has acknowledged the paternity of such child in open court. . . .” Ill Rev Stats, c 106¾, § 54 (1967). The record here does not reveal that defendant acknowledged paternity by either of these methods. Under these circumstances we must hold that that part of the judgment order is not supported by the record. We cannot penalize the defendant for not presenting a report of proceedings because he was not notified of that hearing.

With regard to plaintiff’s argument that no factual issues were present, we note that defendant’s answer denied paternity, denied sexual intercourse with plaintiff and alleged plaintiff was married at the time of conception and at the time of the birth of the child. This last allegation was intended to put in issue the rule of presumed legitimacy of a child bom to a married woman. According to the case of People ex rel. Gonzalez v. Monroe, 43 Ill App2d 1, 192 NE2d 691 (1963), such an allegation in a paternity action raises the rebut-table presumption of legitimacy, which must be overcome by clear and convincing proof of the plaintiff. See also People ex rel. Jones v. Schmitt, 101 Ill App2d 183, 242 NE2d 275 (1968). We are of the opinion that this allegation of defendant’s answer in this case along with his other denials of paternity presented factual determinations for the jury’s consideration.

Thus, we must consider the question of whether the defendant waived trial by jury in this case. According to the statute:

“At the time appointed for appearance and answer, the court shall cause an issue to be made whether the person charged is the father of the child, which issue, upon demand of either the mother or the accused person, shall be tried by a jury.” Ill Rev Stats, c 106¾, § 56 (1967). (Emphasis supplied.)

The plaintiff argues that this provision is merely directory and that because of the nature of a paternity action, this procedure may be waived. A paternity action is considered a proceeding that is civil in nature although criminal in form. Plaintiff has cited Kanorowski v. People, 113 Ill App 468 (1904), for the proposition that the words “shall be tried by a jury” should be construed as directory only. The rationale for this construction was expressed in the case of People ex rel. Landwehr v. Humbracht, 215 Ill App 29 (1919), where it was stated at page 34:

“ ‘The word shall may be held to be merely directory when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction. (Wheeler v. City of Chicago, 24 Ill 105-107; Canal Commissioners v. Sanitary Dist. of Chicago, 184 Ill 597-604.)’”

Following this principle, we are of the opinion that such a construction is not justified. The defendant had exercised the right of jury trial by filing his demand for the same. Under this state of the record we conclude that his right to a jury trial was destroyed in contravention to the rule of construction stated in the Humbracht case. Thus, construing this jury provision as a directory would be improper in the instant case.

As to the waiver argument, we cannot conceive of a situation where a party litigant may relinquish the precious right Of jury trial where he is not present when that is accomplished, nor has he received any notice of a hearing. The record reveals that at the time of the alleged waiver, the- defendant was without counsel. Furthermore, this case had been pending on the trial calendar for nearly five years. In our view of this record, we are of the opinion that defendant did not waive his right to have the factual issues tried by a jury.

Hartsock v. Bress, 40 Ill App2d 66, 189 NE2d 673 (1963), which we consider applicable to our decision, was a paternity action in which defendant was notified that the case would be tried before a jury. After several continuances, the defendant’s petitions for a jury were denied. The reviewing court reversed on the issue of the right to a jury trial. The opinion stated that the right to a jury trial should be liberally construed despite the fact that defendant had not filed his jury demand in due time. The reviewing court noted that defendant was advised by the trial court that a jury trial was intended and the defendant had not been notified of the change to a bench trial, drawing an analogy to the situation where a plaintiff withdraws a jury demand and the defendant must be advised in order to give the defendant an opportunity to demand a jury.

This analogy is precisely the same as relied upon by appellant in the instant appeal. In the absence of any showing of inconvenience to the court or the litigant, we conclude that defendant should have been notified of the judgment hearing where he had demanded a jury trial.

The plaintiff has contended that the petition to vacate the judgment was not sufficient. It is axiomatic that under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72), a party seeking to vacate a judgment beyond 30 days after its rendition must allege a meritorious defense and demonstrate due diligence in presenting the petition. Brochmeyer v. Duncan, 18 Ill 2d 502, 165 NE2d 294 (1960). Appellee argues that defendant’s only motive for challenging the instant judgment is that he wishes to avoid payment for the support of the child. The argument is that the findings of the trial court that defendant acknowledged paternity have not been challenged. Plaintiff has contended that without a report of proceedings, the record imports verity and the findings are conclusive. - We think that these principles are inapplicable to this case in light of the fact that defendant was not present at the judgment hearing. As we noted earlier, the defendant cannot be penalized for failing to present a report of proceedings of a hearing at which he is not present.

Plaintiff argues that no due diligence was evidenced where defendant did not challenge the judgment until almost two months after the order. The record shows that on March 21, 1968, the defendant was present for a support hearing. On that date (within 30 days of the judgment) the defendant was given 5 days to file any petition in this cause. We note that defendant was not represented by counsel at this time. Defendant secured the services of an attorney on April 4, 1968, and the petition to vacate was filed on April 26,1968.

We are mindful of the rule that a petition under section 72 may be addressed to the equitable powers of a court when necessary to prevent injustice. Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350 (1952). We are of the opinion that the defendant has exercised due diligence in challenging this judgment. The appellant had filed an answer which presented factual issues. He had demanded a jury to determine those questions. Yet, the trial court proceeded to hear the case without notice to the defendant and where the record showed that a jury had been requested. Furthermore, the fact that defendant was without counsel from February 19, 1968, until April 4, 1968, is substantial proof that defendant was unaware of the proper procedures necessary to challenge the judgment. Once counsel for defendant came into the case, the immediate response was to challenge the judgment for the defects alleged. Plaintiff has not asserted that the defendant did not have a meritorious defense under the petition to vacate.

Finally, plaintiff contends that defendant cannot accept the benefit of part of an order while seeking to reverse another part. The argument is that the non-suit for the count concerning money loaned was a benefit to defendant which bars him from challenging the paternity portion of the decree. Boylan v. Boylan, 349 Ill 471, 182 NE 614 (1932); Holt v. Rees, 46 Ill 181 (1867). Both of these cases dealt with a party challenging a single decree rendered upon one cause of action. We think the answer lies in the fact that plaintiff’s complaint was a joinder of two counts of separate causes of action against the defendant. Therefore, this rule has not been violated in this case.

The judgment of the Circuit Court of Cook County is reversed and remanded.

Reversed and remanded.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold Bean and Robert Wilkinson, Defendants-Appellants.
    Gen. No. 53,630.
    First District, First Division.
    March 9, 1970.
    Rehearing denied April 6, 1970.

      Jerome Feldman and Dennis L. Posen, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendants were convicted in a bench trial upon the charge of attempted burglary. Each of the defendants was sentenced to a term of one to three years. This appeal seeks the reversal of their convictions upon the alleged insufficiency of the evidence produced at their trial. The defendants contend the State failed to prove the corpus delicti of the crime of attempt and that the evidence failed to produce a reasonable and moral certainty of their guilt.

All of the evidence, of which a great deal is circumstantial, was introduced by the State. The defendants did not produce any testimony on their behalf. The record discloses that at 2:15 a. m., on October 14, 1966, a burglar alarm board in the Village of Lyons police station was activated. The location indicated was the Stitt-Reed Corporation on 44th Place in that village. The physical characteristics of this area are that to the west of the corporation was an open field enclosed by a fence. Another factory was located to the east. To the south, across 44th Place were other factories and to the north was a vacant lot and a stone quarry.

Police responded to the alarm by taking separate squad cars to the Stitt-Reed building. Officer Burton Stieg testified that he arrived at the front of the premises and checked the front door and rear door by pulling on the handles. The rear door is located on the north side of the building. Stieg then walked to the west side in order to check some windows. At this point, the defendant, Robert Wilkinson, was discovered some 20 feet from the building, lying in the field to the west, in some tall grass. Officer Stieg related that none of the factories in that area were in operation at that hour of that day. Furthermore, the nearest tavern was four blocks away and the closest all-night restaurant was located one mile from the Stitt-Reed location. The officer did not notice any vehicles in the vicinity besides the police squad cars.

The testimony of Lieutenant Schiefelbein was admitted by stipulation. He investigated the burglar alarm call at the Stitt-Reed Corporation on October 14, 1966. This officer went up to the roof of the building with his flashlight and while shining the beam into the field to the west discovered the defendant, Harold Bean. He was then arrested and Officer Schiefelbein also discovered what was described as a bolt cutter, commonly used for cutting metal bolts, within three to five feet of Bean. The instrument was admitted into evidence.

The State called Albert Guetler who was Vice-President of Stitt-Reed at the time in question. He testified that on October 13, 1966, he locked all of the windows and doors of the corporation at the close of that business day, at approximately 4:30 p. m. Guetler returned to the premises at 3:00 a. m. the next morning in response to a call from the police. He said he examined the rear door and discovered that the pins on the hinges had been removed. On cross-examination, this witness stated that the pins had been removed in one piece by pushing them out of the hinges. Guetler admitted that he did not go to the outside when he locked the rear door on October 13, 1966. When asked whether he knew if the pins were in the door at that time, he responded: “I can best answer you this way: Had the pins been removed, the door wouldn’t have locked.”

At the conclusion of the State’s case, defendants’ counsel moved for a directed finding of not guilty. After extensive argument, the motion was denied by the trial judge who felt that sufficient circumstantial evidence had been presented. The defendants then rested their case and the trial court entered a finding and judgment of guilty as to both defendants.

The" crime of attempt is defined in Ill Rev Stats, chapter 38, section 8-4 as follows:

“(a) Elements of the Offense. A person commits an attempt when, with intent to commit a specific - offense, he does any act which constitutes a substantial step toward the commission of that offense.”

The defendants argue that all of the evidence in the instant case does not prove conduct which amounted to a substantial step toward committing a crime. They contend that the evidence at best shows preparation only. According to defendants’ theory, the only direct testimony was that defendants were present at the scene when the police officers responded to a burglar alarm. Defendants assert there was no physical damage to the building that proved a substantial step in committing the offense as charged. The argument also points out that the State did not prove what had activated the alarm; that the State failed to show that the pins were present when the building was closed the night before; and that the State did not connect the alleged bolt cutter to the removal of the pins from the hinges.

The State answers these contentions by stating that the removal of the pins from the rear door was a substantial step toward committing the crime of burglary. We are in accord with the State on this questian. The determination of what constitutes the crime of attempt is a matter of degree, depending upon the circumstances of each case. In our opinion, the removal of the pins from the hinge of this door left only the removal of the door from its place as the final step in entering this building. The more important question is the issue of whether the evidence presented proved that the defendants were the persons who had removed these pins in order to burglarize the premises.

In most cases of this nature, proof of the crime must necessarily be based upon a great deal of circumstantial evidence. This case is no exception. The record in this appeal discloses that the trial judge relied upon several inferences in determining the defendants’ guilt. The State contends that these were reasonable inferences which proved the defendants’ guilt beyond a reasonable doubt. The State’s contentions were summarized as follows:

“It sorely tests the imagination to conceive of any other possible reason why two men would be lying in the deep grass with a three foot bolt cutter near one of the defendants, in the early morning, behind a building where the burglar alarm had gone off just minutes before, with no car nearby nor any other neighborhood buildings open, except that they were trying to hide from the police after an abortive attempt to enter the building.”

The defendants have cited many decisions to justify their position. Since the determination of this question must depend upon the facts of this case, we find these cases as factually inapplicable. However, the principles announced will aid our decision. In People v. Magnafichi, 9 Ill2d 169, 137 NE2d 256 (1956), a burglary conviction based on circumstantial evidence was set aside. The Supreme Court stated at page 173 as follows:

“To justify a conviction, circumstantial evidence must be of such a nature as to produce a reasonable and moral certainty that.the accused committed the crime. Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a serious and grave doubt of guilt, a conviction cannot stand.”

The Magnafichi court also noted that because of the presumption of innocence, a defendant need not explain his presence in the vicinity where a burglary occurred. People v. Connie, 52 Ill App2d 221, 201 NE2d 641 (1964) and People v. Dougard, 16 Ill2d 603, 158 NE 2d 596 (1959) hold that it is the duty of a reviewing court to resolve all the evidence on the theory of innocence rather than guilt if that may be reasonably done.

We are completely in accord with these principles. However, we are in disagreement with the defendants as to their contentions. In our opinion, this record contains substantial circumstantial evidence which only leads to the conclusion that defendants were proved guilty beyond a resonable doubt. The record shows that the trial judge had to rely upon reasonable inferences from the evidence presented. According to the case of People v. Jackson, 98 Ill App2d 296, 240 NE2d 482 (1968), at page 302, “the trier of fact is not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.” Similarly, our Supreme Court has expressed this same principle in connection with jury determination in People v. Russell, 17 Ill2d 328, 161 NE2d 309 (1959).

The trial judge relied upon several natural inferences in finding the defendants guilty. The record shows that the defendants were arrested within close proximity to a building where a burglar alarm had sounded. It can be reasonably inferred that the removal of the pins activated the alarm. We think that the trial judge was correct in ignoring the inference sought to be presented by the defendants that no proof was shown that the pins had not been removed prior to the early morning of October 14, 1966. The fact that Guetler checked the rear door on October 13, 1966, but failed to observe the outside of the door where the hinges are located does not lead to the conclusion that the pins were not present. It can reasonably be assumed that had they been removed on October 13, 1966, the burglar alarm would have sounded.

Furthermore, the testimony was that there were no places of business in the near vicinity that were open at the time the defendants were arrested. Although the defendants were not obligated to explain their presence at the scene, this circumstance when considered with the other facts weighs heavily against their innocence. The admission of the alleged bolt cutter found near defendant Bean was a substantial factor for the court’s consideration even though it was not asserted that the instrument was used to commit the offense. People v. Hahn, 90 Ill App2d 367, 234 NE2d 142 (1967).

We are of the opinion that the trial judge drew reasonable inferences from the evidence presented. In our review of the record we have not experienced that grave and substantial doubt of the defendants’ guilt that would require reversal of these judgments. People v. Sheppard, 402 Ill 347, 83 NE2d 587 (1949). Therefore, the judgments of the Circuit Court of Cook County are affirmed.

Judgments affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    James J. Elward, Plaintiff-Appellant, v. Peabody Coal Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 53,960.
    First District, First Division.
    March 9, 1970.
    Rehearing denied April 6, 1970.

      Edward and Macie, of Chicago (Edward S. Macie, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Thomas M. Thomas and Owen M. Johnson, Jr., of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This action was initiated by a complaint in chancery by James J. Elward, who was the owner of 800 shares of preferred stock of the defendant, Peabody Coal Company. Plaintiff brought suit in his representative capacity for all other preferred shareholders who were the owners of 188,071 preferred shares of the defendant corporation. Plaintiff sought to have a plan of liquidation, which had been adopted by the stockholders, declared null and void, and also sought an order directing the corporation to pay an additional $1 redemption premium to each of the preferred shareholders upon the surrender of their stock certificates, as required by the company’s liquidation procedure.

The trial court dismissed plaintiff’s complaint for want of equity following a motion for summary judgment. The cause was submitted upon the pleadings, documents produced through discovery procedures, an agreed statement of facts and arguments of counsel.

In 1966 the defendant corporation entered into negotiations for its sale to the Kennecott Copper Company. In the latter part of 1967, the negotiations had reached a point where a consummated transaction seemed likely. On October 14, 1967, the shareholders of Peabody were notified of a special meeting of shareholders to be held on November 7,1967, for the purpose of considering a number of resolutions, among which were the approval of the sale to Kennecott and the adoption of a plan of complete liquidation. The proxy statement that accompanied the notice of the meeting contained pertinent information for the proposed meeting. Exhibit C of the statement was entitled “Plan of Complete Liquidation of Peabody Coal Company” which recited an adopted resolution of the board of directors that was to be submitted for shareholder approval of the sale of Peabody to Kennecott and a plan of voluntary dissolution of the corporation.

The dissolution plan provided that upon approval of two-thirds of the shareholders, the distribution of its assets in cancellation of all its shares would entitle the preferred shareholders a preferential liquidating dividend of $25 par value per share plus any unpaid cumulative dividends accrued, and the payment of the remainder of the assets on a pro rata basis to the holders of the common stock of Peabody.

The meeting scheduled for November 7, 1967, was continued several times and finally held on January 26, 1968. On this latter date, both the common and preferred shares voted as a single class with the result that 9,135,242 shares were voted for adopting the resolution, while 136,876 shares voted against the proposal.

The resolution, as adopted, read as follows:

“RESOLVED that the shareholders of the Company (a) have considered the advisability of voluntarily dissolving the corporation and do hereby approve and adopt a Plan of Complete Liquidation of the Company (the ‘Plan’) providing for the complete and voluntary liquidation and dissolution of the Company and the sale of its business assets, said Plan to be in the form, or substantially in the form, of the Plan of Complete Liquidation of the Company appended as Exhibit C to the Proxy Statement of the Company. . . .”

On March 29, 1968, the sale to Kennecott was consummated. On that same day, defendant corporation filed with the Secretary of State, a statement of intent to voluntarily dissolve the corporation, pursuant to sections 76 and 77 of the Illinois Business Corporation Act (Ill Rev Stats 1967, c 32, §§ 157.76-157.77). This statement recited the exact words of the resolution as set out above and also an explanation of the voting which approved the resolution. The voting was broken down into the number of shares of each class voting for and against the resolution.

_ In early February of 1968, the plaintiff had complained to Peabody about the propriety of the liquidation procedure which had been adopted. Plaintiff then filed his complaint on February 15, 1968, which was subsequently amended and supplemented. Plaintiff’s allegations challenged the procedure used in adopting the resolution in question, claiming that the proposal was so incomplete as to render it null and void and that the corporation and its directors had breached their fiduciary duties with regard to the preferred shareholders. The same allegations are urged before us on this appeal. Plaintiff further argues that the trial court erred in granting the defendant’s motion for judgment on the pleadings. More specifically, plaintiff contends that the defendant did not sustain his burden of proof with regard to an alleged affirmative defense and that the trial judge used extrajudicial knowledge to incorrectly influence his decision on what plaintiff characterizes as the “controlling issue” in this case. .

Defendant meets these contentions by asserting no impropriety arose from the judge’s decision in this matter. As to the allegations regarding the impropriety of the plan of liquidation, defendant maintains that the preferred stockholders were given their contractual rights, pursuant to the corporate charter. The contractual rights of the corporate stockholders, as written in the Restated Articles of Incorporation of Peabody and also printed on the back of the preferred stock certificate of the plaintiff provide as follows:

“R-V 2. (A) (ii) Redemption Premium. The amount per share which the holders shall be entitled to receive as a premium in the event of redemption shall, in the case of the 5% Prior Preferred Shares, be one dollar.

“Rr-V 2. (C) Preferences on Liquidation. In the event of any liquidation, dissolution or winding up of the Company (whether voluntary or involuntary), the holders of the 5% Prior Preferred Shares then outstanding shall, to the extent of the full par value of their shares and unpaid cumulative dividends accrued thereon be entitled to priority of payment out of the Company’s assets over the holders of the Common Shares then outstanding. After such payment to the holders of the 5% Prior Preferred Shares, the remaining assets shall be distributed pro rata to the holders of the Common Shares then outstanding.

“R-V 2. (D) Redemption. The Company, upon the sole authority of its Board of Directors, may at any time redeem and retire all or any part of the 5% Prior Preferred Shares at any time outstanding by paying or setting aside for payment for each share so called for redemption the sum of $26.00 plus a sum equal to the amount of all dividends accrued or in arrears thereon at the redemption date.”

The plaintiff’s theory in bringing this action, which he maintains on appeal, is that the corporation should have redeemed the preferred stock and then liquidated the corporation. By adopting the redemption procedure each preferred share would have received a $26 redemption payment along with accrued dividends. Plaintiff contends that because some of the directors owned common stock in Peabody, that the liquidation procedure diverted the $188,071 which would have been paid for the redemption of the preferred for payment to the common stockholders. The proxy statement had disclosed that certain members of the Kelce family, who were officers and/or directors of the corporation, owned in the aggregate some 12% of the common stock.

Plaintiff further maintains that the voting for the proposed plan of liquidation should have been separate for the two classes of shareholders. The plaintiff has relied on section 54 of the Business Corporation Act (Ill Rev Stats 1967, c 32, § 157.54), which calls for voting by classes when certain amendments to the articles of incorporation are contemplated. It appears from the case of Bowman v. Armour & Co., 17 Ill2d 43, 160 NE 2d 753 (1959), that where the relative rights of the stockholders of a particular class are affected by amendment to the articles of incorporation, this section is applicable. However, this is not the issue in this appeal. The controlling section for the voting rights in a voluntary dissolution are stated in section 76 of the Business Corporation Act:

“(c) At such meeting a vote of shareholders entitled to vote thereat shall be taken on a resolution to dissolve voluntarily the corporation, which shall require for its adoption the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote at such meeting, unless any class of shares is entitled to vote as a class in respect thereof, in which event the resolution shall require for its adoption the affirmative vote of the holders of at least two-thirds of the outstanding shares of each class of shares entitled to vote as a class in respect thereof, and of the total outstanding shares entitled to vote at such meeting.” Ill Rev Stats, c 32, § 157.76(c) (1967).

We agree with defendant’s contention that in light of the above statutory provision, voting for voluntary liquidation was properly held as a single class of common and preferred shares. In the absence of any statement to the contrary from the corporation’s charter, there was no requirement of voting by separate classes. No such provision is found in Peabody’s articles of incorporation.

Plaintiff also contends that the resolution was defective because of the wording which stated that “said Plan to be in the form, or substantiaUy in the form of” the proposed plan as contained in the proxy statement. Specifically, plaintiff argues that the resolution refers to another writing which was not attached to the resolution and whose provisions were not disclosed in the minutes of the meeting. The contention is that because of the resolution’s incompleteness it is uncertain and indefinite as to have no legal effect since it lacked the “exact contents” of the plan as proposed in the proxy-statement. Furthermore, plaintiff alleges this same defect rendered the statement of intent to dissolve null and void. Defendant argues that this very technical argument is without merit when considered with the rights in liquidation as contained in the articles of incorporation. We agree with the defendant. The plan of liquidation contained all the rights which were guaranteed to the preferred shareholders in the corporation’s articles of incorporation. Although the language of the resolution lacks definiteness, the fact remains that the preferred stockholders were accorded all of their rights upon voluntary dissolution of the defendant corporation.

The complaint also alleged that the directors breached their fiduciary relationship for several reasons. First, plaintiff argues that where the directors have a choice of two procedures, either the redemption or the liquidation plan, they had a duty to explain more completely the meaning of each plan to the shareholders. Plaintiff premises this argument upon the fact that the Kelce family had a conflict of interest due to its combined holding of over 12% of the common stock of Peabody. We think the answer lies in the fact that according to the articles of incorporation, the board of directors were given the right to choose redemption while a stockholder vote was necessary to adopt a liquidation plan. Furthermore, the answer to this contention was admitted by plaintiff when he stated in his brief that, “There was a lengthy Proxy Statement of 68 printed pages from which the Preferred shareholders might have learned this. . . .” From our examination of the record, we find that plaintiff was adequately informed of the particulars of his rights including the disclosure of the stockholdings of the Kelce family. We do not believe that plaintiff and the other preferred shareholders can complain that they were not adequately apprised of their rights in this proposed plan of liquidation.

Secondly, plaintiff complains that the directors violated their fiduciary duty owed to the stockholders and the corporation. Plaintiff states the rule that where there are two alternative procedures to adopt for a corporate transaction and where the first procedure will not result in any financial benefit to the directors and the second will, then the directors should adopt the first procedure, unless it affirmatively proves that the first procedure will cause some substantial disadvantage to the corporation. His argument is that the directors could have redeemed the preferred stock by paying the prescribed $1 redemption premium and then have proposed voluntary liquidation. Plaintiff asserts this was not done because the common stock held by the Kelce interests would receive a portion of the $188,071 which would have been paid to the preferred shareholders if the redemption procedure were adopted. Thus, plaintiff contends that some 12% of that amount was now available to the Kelce common stock interests by adopting the liquidation procedure.

In support of this contention, plaintiff has cited the following cases which we find inapplicable. In the case of Shlensky v. South Parkway Bldg. Corp., 19 Ill 2d 268, 166 NE2d 793 (1960), a stockholder derivative suit questioned transactions between two corporations which had interlocking corporate directorates. The instant case is a representative action which has not challenged the dealings of defendant with Kennecott and has not alleged that any of the directors of Peabody are also members of the Kennecott directorship. In Paulman v. Kritzer, 74 Ill App2d 284, 219 NE2d 541 (1966), another derivative suit challenged a director’s personal gain from an activity which should have been offered to the corporation, in violation of the corporate opportunity doctrine. Plaintiff has not alleged facts in violation of this principle. The case of Johnson v. Central Life Ins. Co., 102 Ill App2d 15, 243 NE2d 376 (1968), involved similar principles as found in Paul-man, supra.

In conjunction with this alleged breach of fiduciary duty, the plaintiff argues that the directors have the burden of proof that there was no breach of fiduciary duty. Plaintiff has relied upon Johnson, supra, which was a derivative action which challenged a breach of the corporate opportunity doctrine. The Johnson decision relied upon the case of Winger v. Chicago City Bank & Trust Co., 394 Ill 94, 67 NE2d 265 (1946), where the rule was stated that where a fiduciary has acquired property of the corporation, in violation of the shareholder’s trust, such dealing will be presumed to be fraudulent and the burden of proving his good faith rests upon the fiduciary. However, the facts of this case do not involve the corporate opportunity doctrine. Further, the nature of this action was a representative suit rather than a stockholder’s derivative action for the benefit of the corporation. Thus, we are of the opinion that the burden of proof for the plaintiff’s allegations was to be sustained by the plaintiff. In Central Standard Life Ins. Co. v. Davis, 10 Ill2d 566, 141 NE2d 45 (1957), a class action was brought to dissolve a corporation. The court stated that the plaintiff had not sustained his proof to warrant recovery, stating at page 576 the rule which is applicable to this action:

“A stockholder who brings a class action on behalf of himself and others must show that he is himself entitled to relief. Babcock v. Farwell, 245 Ill 14.”

As stated above, defendant has maintained that the preferred stockholders cannot complain of these transactions due to the fact that they were afforded all of their preferential rights. The rule has been stated that the rights of preferred stockholders are a matter of contract fixed by the articles of incorporation and the stock certificates. Tennant v. Epstein, 356 Ill 26, 189 NE 864 (1934); Opelka v. Quincy Memorial Bridge Co., 335 Ill App 402, 82 NE2d 184 (1948). Furthermore, we agree with the rule cited by defendant that one who purchases and subscribes to stock of a corporation impliedly agrees to be bound by the acts approved by a majority of the stockholders, or by the corporate agents duly chosen by the majority, if accomplished within the scope of the powers conferred by the charter. Wheeler v. Pullman Iron & Steel Co., 143 Ill 197, 32 NE 420 (1892). As stated in Fletcher’s Cyclopedia on Corporations, Vol 16A, § 8022 (1962) :

“The general rule is that where a statute confers power on a majority, or a certain percent, of the stockholders to dissolve, the right is absolute, so far as the motives of the majority are concerned, in the absence of actual fraud, and not subject to judicial review on behalf of minority stockholders.”

Finally, we come to plaintiff’s contention of the alleged error of the trial court in dismissing the complaint for want of equity. The issues involved center upon the qualification of the plan of liquidation under the Internal Revenue Code, section 337, dealing with the nonrecognition of capital gains upon liquidation of a corporation. By virtue of plaintiff’s pretrial discovery it was revealed that this tax section was considered by the Peabody directors in its proposed sale to Kennecott. The issue was interjected by plaintiff’s amended and supplemental complaint, in which plaintiff alleged that there was no showing by the defendant that in order to qualify the liquidation plan under IRC 337 that the liquidation procedure had to be adopted instead of the redemption procedure followed by liquidation as contended by plaintiff. Plaintiff argues on appeal that defendant had the burden of proof to negate this allegation which plaintiff has characterized as an “affirmative defense” and the “controlling issue” in this action. We do not agree. The party that raised this issue was the plaintiff. Defendant categorically denied said allegations and on appeal asserts that the relevance of IRC 337 was only that it dictated the steps necessary to bring about a tax saving when the shareholders considered the proposed liquidation. This section has no effect upon the preferential rights of the preferred shareholders in the absence of any proof submitted by the plaintiff. As we noted in the Davis case, supra, the burden of proof is upon the representative stockholder in such an action.

Concomitant with this issue regarding IRC 337, plaintiff argues that the trial judge used extrajudicial knowledge in ruling upon that question and was thereby prejudiced in his decision. The record reveals that the judge stated that he relied upon his previous experience in interpreting that section and that he characterized plaintiff’s proposed redemption-liquidation procedure as a sham transaction under IRC 337. Appellant has cited a number of cases which deal with the prejudicial bias of a judge who has extrajudicial information concerning the factual matters, ranging from cases of administrative review to decisions involving a judge’s personal interest. Smith v. Department of Registration and Education, 412 Ill 332, 106 NE2d 722 (1952); People v. Cooper, 398 Ill 468, 75 NE2d 885 (1947); Noel State Bank v. Blakely Real Estate Improvement Corp., 321 Ill App 594, 53 NE2d 621 (1944). We find these cases and the others cited inapplicable. The trial judge was merely using his experience in interpreting a matter of law. This was the trial judge’s duty when ruling upon the motion for judgment on the pleadings. Plaintiff has not alleged any personal bias nor does the record substantiate any finding which would require a reversal of this ruling.

Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Lee Lyons, Otherwise Called Allen Lee Lyons (Impleaded), Defendant-Appellant.
    Gen. No. 54,215.
    First District, First Division.
    March 9, 1970.
    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.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was charged in separate indictments with three offenses of armed robbery and one offense of attempted armed robbery. He entered pleas of not guilty and the Public Defender was appointed as his counsel. On April 14, 1969, the defendant informed the court of his desire to change his plea of not guilty to guilty as to each of the offenses. The trial judge made inquiry of the defendant regarding his change of pleas and asked whether he understood that by entering pleas of guilty, he waived his right to a jury trial. Defendant answered that he understood. The judge then informed the defendant of the penalties which he could impose for each charge and asked whether he still persisted in his pleas of guilty. Defendant answered affirmatively. The court then heard the stipulated facts with regard to the offenses charged and entered judgment on the pleas. The defendant was sentenced on each offense to a term of five to eight years, to be served concurrently. The defendant filed a notice of appeal as to all four convictions and the public defender was appointed to represent him.

The Public Defender’s office filed the record on appeal but has not filed a motion for leave to withdraw from the case on the ground that after a careful examination of the record an appeal would be wholly frivolous. The Public Defender filed a brief in support of the motion in which it was concluded that the only possible charge of error which could be urged would be as to the trial court’s admonishment to the defendant after the defendant had entered his pleas of guilty. We agree with the Public Defender that the record establishes beyond question that the court’s admonishment was more than adequate and that an appeal as to that point would be frivolous. The record discloses that defense counsel discussed with the defendant his pleas of guilty. Thereafter, the court advised defendant of his right to a jury trial and the consequences of his pleas of guilty. (Ill Rev Stats, c 38, § 115-2 (1967)); People v. Kontopoulos, 26 Ill2d 388, 186 NE2d 312 (1962).

On December 12, 1969, defendant was notified by this court of the Public Defender’s motion to withdraw and was sent copies of that petition and the brief in support thereof. He was instructed that he had until February 10, 1970, to file any points that he might choose in support of his appeal. The defendant has failed to file any such points.

We have thoroughly considered the Public Defender’s brief in support of his motion to withdraw and have made a full examination of all the proceedings in accordance with the requirements of Anders v. California, 386 US 738 (1967) and People v. Carter, 92 Ill App2d 120, 235 NE2d 386 (1968). We conclude that the appeal is wholly frivolous and that the Public Defender should be allowed to withdraw. Therefore, the judgments of conviction are affirmed.

Judgments affirmed.

BURMAN, P. J. and MURPHY, J., concur.