author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Clark Memorial Home, a Corporation, and Robert D. Clark Post 1205 American Legion, an Unincorporated Association, Defendants-Appellees.
    Gen. No. 69-45.
    Second District.
    November 12, 1969.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton (Helen Kinney and Ralph Gust, Jr., Assistant State’s Attorneys, of counsel), for appellant.
    Harold J. Spelman, of West Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendants in this case were charged with gambling and keeping a gambling place in violation of sections 28-1 (a) (3); 28-1 (a) (7) and 28-3 of the Criminal Code (111 Rev Stats 1967, c 38, pars 28-1 (a) (3); 28-1 (a) (7) and 28-3). They made a timely motion to suppress certain items sought to be admitted into evidence by the prosecution. The trial court granted the motion and the State appealed pursuant to Supreme Court Rule 604(a), (Ill Rev Stats 1967, c 110A, par 604(a)).

The facts of this case are as follows: On the evening of October 19, 1967, Charles Siragusa, then executive director of the Elinois Crime Investigating Commission, entered the Clark Memorial Home, an American Legion Post, with six other officers or agents. At the time they entered, two men were coming out of the premises and the door was open. The premises were open only to members and guests, with entry normally procured through the use of an electric doorlock system, which was operated by a key card issued to members of the Post, and their guests.

Upon entering the building, Siragusa talked to Victor Kubica, an officer of the Post. There is conflict in the testimony as to whether Kubica indicated that he was the manager of the Home, but it is undisputed that Siragusa advised Kubica that his office had received various complaints relative to gambling on the premises and that he (Siragusa) felt that the Home had persisted in its unlawful operation. Kubica then asked Siragusa to come into the office and talk, and the two of them, along with Captain Crockett, went into the office. When they entered, Siragusa saw a stack of bingo cards and a bingo machine, which were in plain view on the shelf. Upon recognizing what had transpired, Kubica stated that he had no further use for this equipment and asked Siragusa to take it away. He then gave the bingo cards, bingo machine and some pull tickets to Siragusa.

Siragusa then stated that he had been informed that there were slot machines on the premises. Kubica led him to another room, pushed aside a curtain which disclosed four slot machines and asked Siragusa to take the machines because he didn’t want gambling equipment on the premises; and he also revealed the location of additional pull tickets, which were taken from a jar behind the bar by one of the agents.

The State contends that the items heretofore described were admissible as evidence in a subsequent prosecution, and that there was no search since there was no prying into a secret or hidden place. Alternatively, the State urges two additional grounds for reversal of the trial court: (1), that the gambling devices which were turned over to the officers were contraband and, under the statute, were subject to seizure and confiscation by the authorities, and that such devices are incapable of lawful ownership or use and are, therefore, not the proper subject of a motion to suppress; and (2), that consent to search was voluntarily given by Kubica, and that there was no evidence to support the finding of the trial court that the alleged consent was coerced and was, at best, a mere submission to authority.

As to the State’s first contention: We believe that where the entry onto premises on the part of a law enforcement officer is illegal ab initio, we cannot apply the plain-view doctrine. This doctrine is applicable under varying situations and for different purposes. If items are in plain view, then they have been discovered without an illegal search. The existence and location of the items may be considered in deciding whether there are grounds for the arrest of a certain person. Also, the fact that the items were discovered without a search warrant may justify their seizure.

It is well established that an unlawful search upon an illegal entry cannot be justified by what is found in the search, The People v. Dalpe, 371 Ill 607, 612, 21 NE2d 756 (1939), and it seems reasonable that this rationale should also be applied to the plain-view doctrine. In other words, the plain-view doctrine was not applicable unless Siragusa was on a part of the premises to which the general public was allowed access. Such was not the case. Also, the record fails to indicate the reliability of the information which Siragusa had received concerning gambling on the premises. The People v. Bankhead, 27 Ill2d 18, 20, 187 NE2d 705 (1963); Ill L Forum, Vol 1966, No. 2, pp 335, 336.

It does not appear to us that Siragusa properly gained entry into the Clark Home. The record revealed that the premises were not public in nature, and the State has failed to make a showing that the situation was of such emergency nature as to excuse the procurement of a search warrant. See: Ill L Forum, Vol 1966, No. 2, pp 331, 332, 333.

The State further argues that the devices taken by the officers were contraband and, under our statutes, subject to seizure and confiscation by the authorities; and that since the devices were incapable of lawful ownership or use, they were not properly objects of a motion to suppress. There is no merit to this contention. The People v. Mayo, 19 Ill2d 136, 139, 140, 166 NE2d 440 (1960).

In Mayo, the defendant had moved to suppress policy slips, which had been found in his car, on the ground that the search of the car violated his constitutional rights. The State conceded that the search was illegal, but contended, as the State does in the case at bar, that because the items seized were contraband, they still may be introduced into evidence. The court disagreed and stated that the protection against an unreasonable search is based upon the right of privacy of the individual; and that if the search is unlawful in the beginning, it is not made lawful by the discovery and seizure of contraband. The court concluded that the illegally seized contraband was subject to a motion to suppress.

The State also contends that the defendant consented to the search, and that the evidence then was improperly suppressed. The trial court, apparently, was of the opinion that Kubica held a managerial position and, hence, had the power to consent. See: 31 ALR2d 1078, 1088, 1091. However, it found that he did not voluntarily consent, and that his alleged consent was coerced.

We believe that the evidence supports the finding of the trial court. Had Kubica not said anything about the slot machines or pull tickets, the officers could not have discovered them except by additional search. Kubica was confronted by officers who had already discovered the bingo equipment, and they advised him that they had been informed of other gambling equipment.

The situation can best be construed as one in which Kubica may have erroneously believed that it was useless to resist the inquiry in any manner, and that Clark Memorial Home, as well as himself, might benefit later on by his cooperation, particularly in view of the nature of the institution which was raided. The whole atmosphere of the purported consent was, at best, one of submission or resignation to police authority.

The trial court finding that there was no free and deliberate waiver of a constitutional right does not, under the evidence, appear clearly unreasonable. The order of the trial court granting the motion to suppress, thus, should be affirmed. The People v. Harris, 34 Ill2d 282, 285, 215 NE2d 214 (1966).

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    John J. Justice and Della Justice, Plaintiffs-Appellees, v. Wilbur Justice, Defendant-Appellant.
    Gen. No. 11,075.
    Fourth District.
    November 6, 1969.
    Rehearing denied November 6, 1969.

      Claudon, Elson & Lloyd, of Canton (James J. Elson, of counsel), for appellant.
    Knuppel, Grosboll, Becker & Tice, of Petersburg (Eldon H. Becker, of counsel), for appellees.
   SMITH, J.

The jury returned a verdict finding the defendant, Wilbur Justice, guilty of negligence in causing injuries to the plaintiff, John Justice, in a logging operation. Judgment was entered on the jury verdict. The jury returned a Verdict finding Wilbur Justice not guilty on Count II of the complaint in which Della Justice sought recovery for loss of consortium and a judgment in bar was entered. Della Justice does not appeal. This appeal is taken by the defendant on the judgment against him for $7,500.

It is first urged that the trial court erred in selecting the jury. When the case was called for trial, the trial court indicated that it would conduct the voir dire examination, would furnish counsel with copies of the proposed questions, and offered them an opportunity to submit further questions in writing. Neither counsel submitted any questions. Both counsel objected to this procedure prior to the examination of the jury and reiterated their specific objections after the jury had been selected. Both counsel indicate their disenchantment with a jury where the trial judge conducts the voir dire in toto and were apparently setting up the record for an appeal in event of adverse results from the trial court. On the record before us, we do not reach the propriety or impropriety of this action. There is no prejudicial error charged by the defendant and under like circumstances in Pushauer v. Demers, 86 Ill App2d 251, 229 NE2d 908, the court stated that “Clearly it is no longer expected of a judge in a jury trial that he shall sit like his ‘grandsire cut in alabaster’ . . . where no prejudicial error is charged, we see no occasion for determining the limits within which the trial judge may question prospective jurors.” The plaintiff does not charge or point out any specific prejudice on the part of the jury. Both parties are apparently satisfied with the verdict so far as the complaint of Della Justice is concerned and obviously the plaintiff is happy with the jury verdict for $7,500. In this state of the record, neither party is in any position to complain that the jury was not a fair and impartial jury.

In People v. Lexow, 23 Ill2d 541, 179 NE2d 683, the court discussed Rule 24-1 (now Rule 234), Ill Rev Stats 1967, c 110A, § 234, and held in substance that this rule imposes upon the trial judge the primary duty of examining the jurors and gives him considerable discretion as to any further examination by the parties or their counsel. It seems almost simplicity itself to say that where a voir dire examination, whether conducted by the court or by counsel, results in a qualified and impartial jury, no prejudicial error can occur in its selection. In the case at bar, one counsel accepts both verdicts as a work product of a fair and impartial jury. The defendant’s counsel accepts the verdict in the complaint of Della Justice as a work product of a fair and impartial jury, but repudiates that concept as to the work product of the same jury so far as John Justice is concerned. We find it difficult to conclude that counsel’s interrogation would have improved upon either the quality or the impartiality of the jury.

The defendant next contends that the trial court erred in submitting the case to the jury on the question of ordinary negligence rather than on willful and wanton misconduct under the provisions of our so-called “guest statute.” Ill Rev Stats 1967, c 95½, § 9-201. In the instant case, the plaintiff and the defendant were brothers and the defendant asked the plaintiff to come over and help him load some logs. In loading the logs, two trucks were employed. The plaintiff was on the bed of one truck putting in some end stakes when, in moving the truck, the defendant bumped it into a tree and plaintiff’s suit is based on defendant’s negligence in the operation of the truck and in hitting the tree, causing the plaintiff to fall or causing a tree limb to fall on him. It is the defendant’s theory that if the plaintiff was a guest or engaged in a joint enterprise with the defendant-owner or driver of the motor vehicle, there can be no recovery by the plaintiff without proof of willful and wanton misconduct on the part of the defendant. Such are the plain words of the statute. The defendant cites no other authority for his position, but merely states that the plaintiff either was or was not a guest. We agree. There is no evidence in the record justifying a conclusion that it was a joint venture between the brothers. The term “guest” has been recently defined in Sinclair v. Thomas, 90 Ill App2d 114, 119, 234 NE2d 368, 371, in the following language:

“If the transportation confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if it is primarily for some objective or purpose of the operator, the passenger is not a guest within the meaning of the statute. Connett v. Winget, 374 Ill 531, 30 NE2d 1; Dirksmeyer v. Barnes, 2 Ill App2d 496, 119 NE2d 813; Gass v. Carducci, 37 Ill App2d 181, 185 NE2d 285; Perrine v. Charles T. Bisch & Son, 346 Ill App 321, 105 NE 2d 543.”

The evidence shows that the plaintiff was on the platform of the truck at the invitation of his brother to come over and assist him in loading some logs. There is no evidence that he was to be paid for it or that it was a joint enterprise or that there was an employee or employer-relationship, but that the plaintiff’s presence on the truck was primarily and solely for an objective or purpose of the operator, i. e., of loading the logs. This precludes any thought that his presence on the truck was incidental to any hospitality, companionship or to enjoy any of the social amenities. Under these circumstances, the plaintiff is not a guest within the statute and he is, therefore, not required to prove more than ordinary negligence.

The defendant also objects to the refusal of an instruction on the assumption of risk. He states that it is inconsistent to refuse such an instruction when the issue instruction given by the plaintiffs stated that the defendant had negligently failed to provide the plaintiff with a safe place to assist him with his undertaking of loading the logs. This, the defendant says, has the flavor of an employer-employee instruction. Therefore, the assumption of risk instruction should be given. Both the plaintiff and the defendant, he says, were professional loggers and ought to be in the same category as the jockey in Gray v. Pflanz, 341 Ill App 527, 94 NE2d 693, where it was stated that the plaintiff . . assumed the inherent risks of his profession and for those risks defendant could not be held liable.” For our purposes, we may concede that both of these men assumed the hazards inherent in the logging industry. It is, however, fundamental that the assumption of risk doctrine does not encompass the assumption of responsibility for the negligent acts or omissions of some other person which may cause injury to the plaintiff. There was no error in the refusal of the instruction.

The defendant further contends that under the facts in this case there was a pure accident and it is speculation and conjecture to determine that any negligent act of the defendant in this case was the proximate cause of the plaintiff’s injury. The occurrence events are actually meager. The plaintiff testified that he was on the platform of the flat-bottomed truck while his brother, the defendant, was moving it; that it was backed into a tree; that he didn’t pay too much attention to it, and that the last thing he remembers was being on the truck. The defendant indicates that he did back into a tree with the truck, and an examination indicated that there was fresh bark off the tree at the approximate height of the rear end of the truck, i. e., four feet, and that he got out of the truck and had walked some 40 or 50 feet when he heard something and saw his brother, John, on the ground. The complaint alleged that the injuries to the plaintiff were due either to the negligent operation of the truck by the defendant or that by bumping into the tree a limb was jarred loose and struck the plaintiff. The defendant suggests that if the latter was the case, the loose limb might have been jarred loose either by the wind, a squirrel or some other means. The injuries to the plaintiff were contusions on each side of his forehead and head and he wound up with a compressed fracture of the fourth thoracic vertebra. When the defendant heard the noise and turned to him, he was not “in good shape” and was unconscious. From these provable facts, it appears to us that there are several inferences which might be drawn by the trier of facts. From the evidence here, it could reasonably be inferred that the injuries sustained were the result of a pure accident, without negligent responsibility on the part of the defendant. That is one inference. The nature of the injuries to the plaintiff suggest that the injury sustained came from above, and another reasonable inference is that the bump to the tree which was sufficiently hard to remove about four inches of bark jostled and loosened a limb in the tree. There were loose limbs around the plaintiff after the accident and one of such limbs reasonably could have caused the injury. We cannot say from this situation that there is a complete absence of probative facts to support the conclusions drawn by the jury that the negligent operation of the truck caused the injury. They chose between two possible inferences. In such circumstances, “Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.” Lavender v. Kurn, 327 US 645, 90 L Ed 916, 66 S Ct 740 (1945); Manion v. Chicago, R. I. & P. Ry. Co., 12 Ill App2d 1, 138 NE2d 98.

The defendant likewise complains that the plaintiff used as a part of his case in chief photographs which he discovered in the defendant’s file during pretrial discovery procedures. He contends that basic principles of justice should not allow the abstraction and use of such evidence without some safeguards being established. He cites no authority, nor does he suggest any safeguards, nor does he indicate wherein the fact that they were taken for the defendant makes them inadmissible or entitled to no evidentiary value. The photographs were admissible.

There appearing to us to be no error warranting a disturbance of the jury’s verdict in this case, the judgment of the trial court is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: CREES, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Hahn, Defendant-Appellant.
    Gen. No. 11,098.
    Fourth District.
    November 6, 1969.

      John T. Phipps, of Champaign, for appellant.
    Lawrence E. Johnson, State’s Attorney of Champaign County, of Urbana (Kenneth E. Baughman, of counsel), for appellee.
   CREES, J.,

delivered the opinion of the court.

The defendant appeals from a jury’s verdict finding him guilty of the crime of escape and from the court’s order sentencing him to the penitentiary for a period of from five to ten years.

Defendant raises five points for review.

First, whether or not the State established all the necessary elements of the alleged crime beyond a reasonable doubt. An examination of the record leaves no doubt as to defendant’s guilt. Defendant poses certain questions not answered at the trial. These concerned matters unconnected with elements of the offense, and hence the State was not required to offer proof as to such matters.

Second, whether or not the jury was improperly instructed concerning the necessary elements of the alleged crime; and whether or not defendant was actually convicted of a lesser included offense and acquitted of the felony charge.

The objection now raised is in regard to People’s Instruction No. 3. No specific objection was raised to this instruction at the conference on instructions, nor was this objection raised in the post-trial motion. Under these circumstances, even if we were to assume that the instruction was improper, the objection has been waived.

The third point is whether or not defendant is entitled to a new trial as a result of the unavailability of a key defense witness. This witness, McMahan, was present but refused to testify, claiming privilege against self-incrimination. At the time of the defendant’s trial McMahan was charged with the same offense as the defendant. The day after defendant’s conviction McMahan entered a plea of guilty. Subsequent to his conviction McMahan made an unsworn statement alleging facts which might have aided defendant. Defendant contends that the unavailability of this testimony constituted a denial of due process.

While this argument appears persuasive, it does not stand examination. Where two parties have committed the same offense, the State has a right to indict either jointly or severally. When they are indicted in separate indictments there is no basis for a joint trial. If they are tried separately, it necessarily follows that one must be tried first. Whichever case is tried first, the other defendant could refuse to testify on the grounds of possible self-incrimination.

The fourth assignment of error is that the court erred in refusing to give defendant’s tendered instruction concerning the defense of entrapment required by the sufficiency of the evidence presented by the defense.

The evidence in this regard was to the effect that the bars in the cell block could be removed, and this condition had not been repaired when other repairs were made; also, that the security check was lax. Even so, defendant had to form the intent to leave and, in this case, to also make a hole in the roof. There was no evidentiary basis for an instruction on the defense of entrapment.

Finally, it is contended that the sentence imposed by the court in this case should be modified to carry out the original intent of the trial court that the defendant receive credit on the Illinois sentence for time he would serve in a Wisconsin penitentiary prior to the commencement of the Elinois sentence.

It is clear from the record that at the time of sentencing the trial court knew the defendant was incarcerated in the State of Wisconsin. The court specifically noted this fact, fixed a sentence of not less than five nor more than ten years, and then provided: “Said sentence to run concurrently with any sentence which defendant is now serving in this State or any other state.”

So far as this record indicates, the only other sentence to which the defendant was then subject was the Wisconsin sentence, which is pot specifically described but which the defendant said started in 1967 and was for a term of five years. The record indicates that the Wisconsin sentence would terminate in 1970. There is an extradition agreement in the record by the terms of which the Governor of Wisconsin permitted the defendant to be returned to Champaign County, Elinois, for trial on pending charges subject to his return to the Wisconsin institution at the conclusion of the Elinois proceedings.

After the attempted imposition of sentence to be concurrent with the Wisconsin sentence, counsel for the People correctly advised the court that there was no statutory authorization specifically permitting of an Elinois sentence to be concurrent with a Wisconsin sentence. Section 119-2 (e) of chapter 38, Ill Rev Stats 1967, does provide that a State prisoner could serve time concurrently with a federal sentence in a federal institution. There is no reference to institutions of other states. Having been advised on this point, the trial court vacated the foregoing sentence and sentenced the defendant to the Illinois State Penitentiary for an indeterminate term of not less than five nor more than ten years and ordered the defendant delivered to the Department of Public Safety. At this point counsel advised of the agreement between the Governor of Wisconsin and the Governor of Illinois to return the defendant to the State of Wisconsin. There was no further change in the sentence, it being concluded that the extradition agreement would be self-executing.

The trial court has now lost jurisdiction to exercise the option he sought to exercise with reference to the sentence. While the Illinois sentence cannot be made to be concurrent with the Wisconsin sentence, that which the trial court clearly indicated he intended to do can be effected by a reduction in the minimum of the Illinois sentence to give credit for time served in Wisconsin. To do so would be in accord with the American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures (Approved Draft 1968), section 3.5 (b) (iii), which recommends against imposition of a sentence in a state to be served consecutively to an out-of-state sentence previously imposed. This is but a recommendation, but the reasons assigned for the recommendation are persuasive.

The effect upon the defendant in vacating the original sentence and reimposing a sentence that would give no credit (by reduction of the minimum) for the time served in the Wisconsin institution amounted to an enhanced penalty. We believe a fair interpretation of the record necessarily leads to the conclusion that the trial court intended no such enhanced penalty. That determination must, in fact, be made by the trial court, and for that purpose it is appropriate that the sentence imposed be vacated and the cause remanded to the Circuit Court of Champaign County for reimposition of sentence.

Judgment affirmed; sentence vacated and cause remanded for reimposition of sentence.

TRAPP, P. J. and CRAVEN, J., concur.


author: ALLOY, J.

text:
    Lakeland Bluff, Inc., Plaintiff-Appellee, v. County of Will, a Body Politic and Corporate, Defendant-Appellant.

      Gen. No. 69-3.
    Third District.
    November 7, 1969.

      Louis R. Bertani, State’s Attorney, by Arthur T. Lennon, of Joliet, for appellant.
    Robson, Masters, Ryan, Brummond & Belom, of Joliet, and Sidney Z. Karasik, of Chicago, for appellee.
   ALLOY, J.

The owner of the property involved in the cause before us first sought to have the property in Will County rezoned. When this request was denied, plaintiff Lakeland Bluff, Inc., sought to have the Will County zoning ordinance, as it relates to the property of plaintiff, declared invalid. The trial court decreed that the Will County ordinance was invalid as it applied to the property of plaintiff and granted the injunctive relief requested. The County appealed from such judgment.

The record discloses that in 1962, Patrick D. Fahey of Joliet, Illinois, purchased 700 acres of land near Braidwood in Will County, Illinois. In 1966 Mr. Fahey conveyed the 160-acre tract, which is the subject of the present litigation, to Lakeland Bluff, Inc., a corporation, in which Mr. Fahey owned all the stock. The property in question was zoned “F” (Farm District). Under such “F” classification the following uses were permitted: (1) airports, (2) cemeteries, (3) fairgrounds and racetracks, (4) farming, (5) landfill garbage disposal, (6) government military reservations, (7) game preserves, (8) milk bottling plants and creameries, (9) road construction material and processing plants for six-month periods, (10) monasteries, etc., (11) portable stands for sale of products, (12) penal institutions, (13) pigeon lofts and poultry farms, (14) pipelines, (15) garbage incinerators and sewer treatment works, (16) recreational camps, (17) sanitariums and similar institutions, (18) trap shooting, (19) temporary carnivals, and (20) various farm operations, gardening, veterinary hospitals and power plants. There was no specific provision which would allow mobile home developments in such “F” district and, accordingly, plaintiff sought rezoning of the 160-acre tract to “B-5” district. After application to the Will County Zoning Board of Appeals, this request was denied, and the denial was approved by the Board of Supervisors of Will County in October of 1967. The present injunction action was then undertaken, after a showing that the plaintiff had exhausted its remedies in seeking rezoning relief.

The 160-acre tract is an irregularly shaped parcel of land about one mile northeast of Braidwood, Illinois. It is bounded on the north by Route 113-S (Coal City Road); on the east by Route 129 running parallel to the G. M. & O. Railroad as well as Alternate Route 66; on the west by a local gravel road and on the south it adjoins a larger tract of which it was originally a part. All the land was formerly used for coal strip mining and was thus broken up into mounds, water holes and small lakes. The land is substantially useless for farming. Across the road to the north is the Wilmington Recreation Club which is a private recreation club using about 480 acres, with a membership of approximately 850. The activities of the club include boating, fishing, and camping, and camping trailers are permitted on the club property and can be seen from the highway running along the north side of the 160-acre tract in question. Another similar recreational area borders the property on the south and the southeast covering a tract of approximately 1,000 acres. There is farmland to the west of the 160-acre tract. The balance of the area around the 160-acre tract consists of land formerly used for strip mining and is abandoned so far as usage is concerned.

The cause was heard by the trial judge wthout a jury. At the hearing of this cause before the trial judge, a Mr. Richard Vaughan, employee-community relations supervisor for Uni-Royal, Inc., testified on behalf of the plaintiff. He pointed out that Uni-Royal, Inc. operates the Joliet Arsenal which covers 32 square miles of area in Will County and is only four miles from the 160-acre tract involved in the action. He referred to the importance of Uni-Royal in the national defense program, pointing out that this company produces one-half of the TNT produced in the United States. He further testified that the company had a labor shortage in the Joliet area and that he felt that the basic cause of the labor shortage was the lack of low-cost housing in the area for employees. Mr. Vaughan indicated that the proposed 1,200 mobile home unit on plaintiff’s 160-acre tract would satisfy the need for housing the area and would allow Uni-Royal plant to employ hundreds more individuals. He stated that the need for immediate low-cost housing in the Arsenal area was desperate.

Mr. Paul Meyers of Northern Illinois Gas Company also testified that industrial development in the Joliet area was handicapped because of the shortage of low-cost housing and that a mobile home development would be a benefit to the area and help alleviate that situation.

The secretary of plaintiff-corporation testified as to the nature of the proposed mobile home site development. He pointed out that it would be designed for approximately six and one-half mobile home units per acre which was shown to be low density as compared with other comparable mobile home facilities. Each mobile home would have its own concrete slab and would be serviced by underground utilities, including sewage disposal. The development would have private roads, maintained by the owner, and the roads would be designed to be used by the 1,200 mobile home dwellers. The mobile homes would range from one to three-bedroom units. There would also be shopping facilities, a recreational area, private police and fire services, all provided by the owner at the owner’s expense. The testimony distinguished the facility planned from what is known as a “trailer park,” the chief difference being in the amount of services offered and the physical planning of the project.

A real estate broker from Joliet, Mr. Herb Regan, testified that farmland in the area would be worth $400 an acre but that it was his opinion that the 160 acres involved in the instant case would only bring about $50 an acre as zoned under the ordinance. If rezoned to allow a mobile home development, Mr. Regan stated that the land might be worth as much as $15,000 an acre. He also testified that in his opinion there would be no reduction of land values of nearby property if the 160 acres were developed for mobile homes.

The chief witness for the plaintiff was Mr. George H. Kranenberg, a professional planning and zoning expert. He was shown to have wide experience in the zoning and planning field. He testified that he considered the physical nature of the 160 acres, the uses of the land nearby, the character of the entire neighborhood, and, also, the need for additional low-cost housing in the area. Based upon these factors and others which he felt appropriate to consider, Mr. Kranenberg stated that the most feasible or the most suitable use of the 160 acres would be for the mobile home facility proposed by the plaintiff. He pointed out that to permit such facility would allow the area to be reclaimed and that many of the uses under the existing “F” classification, such as a garbage fill or airport, were not feasible for the area. He also pointed out that although the 160 acres could be used for some recreational facilities, there were already 1,500 acres of recreational land in the immediate area.

Mr. Kranenberg noted that the 160 acres was buffered on all sides by roads and, thus, there would be, in his opinion, “absolutely no detrimental effect” on the surrounding property. The witness testified that the mobile home development in his opinion would actually benefit the area both economically and in the use of land which was otherwise wasted. He pointed out also that although he had testified many times in court actions both for and against municipalities, this was the first time he had ever testified in favor of a particular site for a mobile home development, for the reason that in his 35 years of experience he had never seen a better site for such mobile home development. The witness also concluded that the development would not be incompatible with the use of land surrounding the 160-acre tract since there were numerous house trailers in the area and, also in the City of Braidwood. He concluded that due to the physical condition of the land (abandoned strip •mining property), the site was more conducive to a mobile home development than to development for single-family homes.

Mr. Rolf Campbell, a planner and consultant who testified for the defendant county stated that the highest and best use of the 160-acre tract would be for recreational purposes. He also concluded that such use would contribute the most to the economy of Will County. He also stated that a development for mobile homes would be detrimental to the adjacent property to the west, but it was not apparent from his testimony in what respect this detriment would arise. Mr. Campbell also pointed out that a mobile home development would bring in many people to the area and that the tax obtained from the mobile homes could not finance roads, schools and other services which would be needed as a result of the mobile home development. A Mr. Sheldon C. Bell, a real estate broker, testifying for the County of Will, stated that in his opinion the highest and best use of the property was for recreational purposes. He pointed out also that there had been no growth in the Braidwood area over the last years.

Upon conclusion of the hearing, the trial court found that the property was formerly used for strip mining and could not presently be farmed. The court further found that plaintiff had shown the great need for low-cost housing in the area and that mobile homes would cost about one-third as much as permanent dwellings and could be developed much more quickly than permanent dwellings, thus better supplying a critical housing need. The court also found that a mobile home development was the most appropriate use of the property, as the area was buffered; that the tract was wasteland which would be reclaimed ; and that the need for housing in the area would be fulfilled. The Court likewise found that the testimony of defendant’s witnesses, that this area should be used for more recreational area, was not supported by the evidence. The court additionally concluded that the use of the property for mobile home development would not diminish property values in the area any more than any of the uses authorized in an “F” zoned area. In essence, the conclusion of the trial court was that appropriate use of the property involved in the cause before us was for a self-sufficient mobile home development. The court concluded that the zoning ordinance of Will County has denied plaintiff the right to the use of the property for such purpose and that the ordinance was invalid and void and of no effect in its application to the property to the extent that it limited such use.

The issue on appeal, therefore, is whether the ordinance of Will County, in denying plaintiff the right to the use of its property for a self-sufficient mobile home development was arbitrary and unreasonable and without substantial relation to the public health, safety, morals and welfare. An alternative method of stating the questions presented specifically for review is (1) whether the so-called presumption of “legislative validity” was rebutted and overcome in the cause before us, and (2) whether the findings of the trial court and the judgment were based on sufficient evidence to warrant the zoning relief prayed for.

The presumption of validity which arises from enactment of a zoning ordinance can be overcome by clear and convincing evidence that the ordinance, as applied to the subject land, was arbitrary and unreasonable and without real or substantial relation to the public health, safety, morals and welfare (Urann v. Village of Hinsdale, 30 Ill2d 170, 174-175, 195 NE2d 643). The courts of this State have recognized that the validity of each zoning ordinance must be determined on its own facts and circumstances (La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 145 NE2d 65). Following the case of Krom v. City of Elmhurst, 8 Ill2d 104, 133 NE2d 1, where the court began to set forth guidelines for determining whether a particular ordinance was invalid as related to the property of the person challenging the ordinance, the court in La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65, at pages 46-47, grouped the various factors for consideration under six general headings, stating:

. . among the facts which may be taken into consideration in determining the validity of an ordinance are the following:
“(1) The existing uses and zoning of nearby property. . . .
“(2) The extent to which property values are diminished by the particular zoning restrictions. . . .
“(3) The extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public. . . .
“(4) The relative gain to the public as compared to the hardship imposed upon the individual property owner. . . .
“(5) The suitability of the subject property for the zoned purposes. . . .
“ (6) The length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. . . .”

The six general factors referred to in the La Salle Nat. Bank case have been quoted in numerous Illinois cases since they were first outlined (Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584; Atkins v. County of Cook, 18 Ill2d 287, 163 NE2d 826). Both parties in the cause before us refer to the six points outlined in the La Salle Nat. Bank case and each party attempts to show that when these factors are applied to the facts in the instant case they point to a decision favoring the views of the respective parties. There is basically no dispute as between the parties as to the law which is applicable in the cause before us but rather over the applicability of the rules to the facts in the cause before us.

It is contended by the county on appeal in this case that the court, faced with expert testimony on each side, was confronted with a difference of opinion with respect to the reasonableness of the ordinance, and that the legislative presumption should, therefore, be conclusive. The mere fact that there is expert testimony on each side does not mean that plaintiff has automatically failed to rebut the presumption with respect to the validity of the ordinance. The court pointed out in La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65, at page 47:

“Much evidence was heard concerning traffic conditions, general character of the neighborhood, highest and best uses, valuations, etc. Each side produced expert witnesses to sustain its contentions. Difference of opinion does not render plaintiff’s evidence unbelievable or require a finding that the reasonableness of the ordinance is debatable.”

Similarly, in Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584, at page 181, the court stated:

“Mere conflict in testimony as to the highest and best use of property, the impact of the proposed land use of the areas involved or its effect upon property values, does not make irrebuttable the presumption that an ordinance is valid. A difference of opinion does not render the evidence of one party unbelievable, or require a finding that the reasonableness of an ordinance is debatable. In a trial before the court without a jury, the credibility of witnesses and the weight to be accorded their testimony are still to be determined by the trier of fact. Unless manifestly against the weight of the evidence, his findings will not be disturbed. North-

On the basis of the record before us, we cannot say that the findings of the trial court were manifestly against the weight of the evidence. While it is not necessary to repeat such evidence in detail, the testimony of witness Kranenberg could have been accepted by the trial court as far more convincing than that of any witness for defendant. Such testimony was detailed and specific in its analysis and clearly supported the opinions and conclusions of the witness. The courts of review will not disturb the findings and decree of the chancellor unless such findings and decree are contrary to the manifest weight of the evidence and that the opposite conclusion is required on the basis of the record (La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 48, 145 NE2d 65; Myers v. City of Elmhurst, 12 Ill2d 537, 547, 147 NE2d 300; Atkins v. County of Cook, 18 Ill2d 287, 297, 163 NE2d 826).

Apparently, one of the major reasons that Will County refused to rezone the property when first requested may have been the feeling that the development would possibly cause an increase in local government costs for schools, roads and other facilities. Such considerations, however, could not be a justifiable basis for rejecting an appropriate use of the property (First Nat. Bank of Skokie v. Village of Skokie, 85 Ill App2d 326, 339, 229 NE2d 378). In the Skokie case, the court pointed out that on the simple economics of the issue, it is obvious that if future developments were limited to commercial or industrial enterprises, there would be more tax money without the addition of any school children; that the fiscal position of the school board would be strengthened but only at the cost of circumventing the reason for having schools. We do not believe that such consideration should be a basis for rejection of a request for rezoning or usage which is consistent with the general objectives of the zoning ordinance.

While we do not predicate our conclusion upon the need for lower cost housing, we believe that this was an element which should be considered in determining the reasonableness of the restrictive zoning ordinance. The need must necessarily be balanced as against the question of its effect upon the neighboring property, etc. While many of the uses which are authorized by the “F” zoning classification would be more detrimental than the mobile home development, we believe that the court rightfully considered the mobile home development on the basis of its impact in the community, and not as a lesser evil.

In applying the six factors which were emphasized as basic considerations in the La Salle Nat. Bank v. County of Cook case (12 Ill2d 40, 145 NE2d 65), we believe that the trial court was correct in its findings and judgment. The trial court should have, and apparently did consider the factors referred to in making its determination.

The existing uses and zoning of the property adjacent and nearby to the property in question is a factor to be considered. Although the area around the 160-acre tract was zoned “F,” it was shown that the tract in question could not be farmed or used for many of the uses which were permitted in the “F” zoning. The existing uses of nearby property were shown by the record to be compatible with the mobile home development, since the adjacent property was used for recreational areas which included campers and trailers.

Considering the extent to which property va, ues are diminished by the particular zoning restrictions, jhe evidence disclosed that the 160-acre tract was virtually worthless as farmland and could only bring about $50 an acre and that most of the other uses permitted under the “F” classification were not feasible for the tract. It could be worth $15,000 an acre if developed for mobile homes. There was no substantial evidence of any detrimental effect on neighboring property and the record might well have justified the conclusion that the effect would be just the opposite, since the additional people who would move into the tract would need services.

On the question of the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, there is direct evidence that the proposed use of the property for mobile home development would have no detrimental effect upon the surrounding uses. There was no showing of any benefit to be obtained by preventing plaintiff from using the tract for mobile homes other than the possible need for additional services resulting from the increased population. It is apparent that the subject property would be properly buffered and that such buffering is ideal for mobile home development.

The relative gain to the public as compared to the hardship imposed upon the individual property owner should also be considered. The hardship to the plaintiff in the case before us is apparent. His property has very little value as farmland and might well be worth $15,000 an acre if developed for mobile homes. The circumstance that plaintiff purchased the tract knowing that it was zoned “F” does not preclude the plaintiff from objecting to such classification (La Salle Nat. Bank v. City of Evanston, 24 Ill2d 59, 64, 179 NE2d 678; Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584). There was little showing of any gain to the public by forcing a retention of the “F” classification and in the words of the court in the Bauske case, supra, at page 181:

“It is not the monetary loss to the plaintiffs which here compels a finding of invalidity, but that such loss is utterly unrelated to any substantial public benefit to be derived.”

The court is also justified in considering the suitability of the subject property for the zoned purposes. The record shows that the tract was zoned for farming and that it could not be farmed. A number of other uses authorized under the zoning ordinance were shown not to be feasible for the particular tract. The only permitted use which defendant contended was the best use for the tract was a recreational use. The record shows, however, that there were 1,500 acres of recreational property in the area. To conclude that plaintiff must operate under such classification when the only practical use of the property is for unneeded or uneconomic recreational purposes, in effect is saying that the property is not suitable for the purpose for which it was zoned.

The final consideration is the length of time the property has been vacant as zoned, considered in the context of land development in the area, in the vicinity of the subject property. The only recent use to which the property has been put apparently is strip coal mining. The mines are now exhausted and the land is vacant and unimproved. This has been the condition for a number of years. The expert’s opinion on behalf of plaintiff indicated that a mobile home development in this buffered area would be a good reclamation of otherwise unusable land.

While it is appropriate to consider all of the six factors to which we have referred, some factors will weigh more heavily than others. As stated in La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65, at pages 47-48:

“No one factor is controlling. It is not the mere loss in value alone that is significant, but the fact that the public welfare does not require the restriction and resulting loss. When it is shown that no reasonable basis of public welfare requires the limitation or restriction and resulting loss, the ordinance fails and the presumption of validity is dissipated. (Krom v. City of Elmhurst, 8 Ill2d 104.) The law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.”

With respect to a consideration of the entire record and the evidence which has been presented in this cause and in view of the finding of the trial judge, we should again look to the language of La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65, at page 48, where the court states:

“After examining the record we are satisfied that the master in chancery and trial court were justified in their conclusions. There is naturally a conflict of testimony in cases of this nature and the credibility of witnesses is of great importance. The triers of fact are in a superior position to that of a reviewing court in such a situation. When testimony is contradictory in a trial without a jury the weight to be accorded testimony is a matter to be determined by the trial court and its findings will not be disturbed unless manifestly against the weight of the evidence. We believe the findings and judgment of the trial court are supported by the evidence and should be affirmed.

In view of the record and the precedents to which we have referred, we do not feel that this court would be justified in rejecting the determination of the trial court. The judgment of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roy Pierre, Jr., Defendant-Appellant.
    Gen. No. 51,847.
    First District, Fourth Division.
    September 3, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Stephen W. Stoll, James N. Gramenos, 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, Roy Pierre, Jr., was charged with the offenses of forcible rape and robbery. Prior to trial and after a hearing, a motion to suppress certain oral statements made by defendant was denied. After a bench trial, defendant was found guilty of both charges and sentenced to a term of two to three years in the penitentiary, the sentences to run concurrently. Defendant appeals, contending that defendant’s oral statements should have been suppressed, and that he was not proved guilty beyond a reasonable doubt.

At the pretrial hearing on the motion to suppress certain statements, the following testimony was adduced. Officer James Severin of the Chicago Police Department testified for the State that he was assigned to investigate a rape. On January 16,1966, defendant, his mother and a friend of hers came to the police station. A lineup was held, and the complaining witness identified defendant as her assailant. The witness then took her statement in the presence of the defendant, and this took from forty-five minutes to an hour. After the statement was typed, defendant stated that he committed the crime, and that he was sorry. He also asked the complaining witness not to press charges against him. After the complaining witness left, defendant’s mother came into the room. In her presence, defendant at first denied, then admitted committing the acts in question. At no time had defendant requested the presence of his mother or an attorney.

On cross-examination Severin testified that he had called defendant on January 14, and had asked him to come into the station. He again called on January 15, talking to defendant’s mother, and requested that defendant come in Sunday, January 16. The witness arrived at 4:45 p. m., and found defendant sitting in an office and his mother directly outside the office. From the time the witness arrived, defendant was not interrogated by anyone until the witness began asking questions at about 6:45 p. m. in the presence of complainant. He did not advise defendant of his right to an attorney or the presence of his parent. He knew that defendant was 17 years old. Defendant gave his statement about 7:05, and was not asked any further questions. From 7:05 to 7:25 the witness typed up the arrest slip, and then called in defendant’s mother.

Harriet Pierre, defendant’s mother, testified for the defense that on January 2, Officer Severin came to her home and asked about her son, stating that he was a witness to a killing. The officer called on January 15, asking her to bring her son down about 4:30 p. m. the next day. She went into a room with her son, and the officer asked her to step out. She was at the station from 5:00 p. m. until 7:55 p. m. She saw a lineup but did not know what it was all about. About 7:55 she was told that she could see her son. At first he denied doing anything, but after the officer told him “you are fibbing,” he admitted it. She had no other conversation with her son, and was taken home. Her son looked like he had been crying and looked scared.

Defendant testified that in January, he was working and living at home with his parents, sister and brother. He had never been arrested before. His mother received a phone call from a police officer about a shooting; and took him down to the station to see what it was all about. When they arrived at the station, a policeman took him into an office and started questioning him. No one told him that he had the right to an attorney, or that he could have his mother present. He remembered a lady coming into the office; just before she came in, the police told him to shut up. He was telling the officers that he didn’t do it, that he had never seen the lady before, and that he wanted to see his mother. When the officer told him to shut up, he became frightened and started to cry. There were four other persons in the lineup, one younger and the others about his age. After the lineup, he was taken back into the room and questioned further. His mother then entered the room.

On cross-examination, defendant testified that when he first arrived, he went to a room where there were about eight or ten policemen; they told his mother to get out. The woman who was to sign the complaint was also in the room. He asked for his mother about six or eight times, and was refused. After the lineup, he was taken back into the room. Officer Severin and the complaining witness were there. After the officer had finished typing the lady’s statement, defendant’s mother came in. He did not tell her that he did it.

The complaining witness testified for the State in rebuttal that on January 16, Officer Severin requested that she come to the police station. At the station, she identified defendant out of a lineup. A few minutes later, she went to Officer Severin’s office, where she gave a statement. It took about a half-hour to forty-five minutes to give the statement. While she was being questioned, defendant first would say that he didn’t do it and then would say that he did it, and that he was sorry. He asked her not to sign a complaint. At no time did she hear defendant ask to see his mother.

On cross-examination, the complaining witness testified that defendant asked to see his mother once or twice while her statement was being taken. She and her sister returned home from the station about 7:30 p. m.

The motion to suppress any oral statements made by defendant was denied by the trial court.

The following testimony was brought out at trial. Complaining witness testified that on November 22,1965, she was single, and living with her sister and brother-in-law at 2245 West Lake Street, Chicago. At about 10:00 p. m. she entered the building elevator and pushed the button for the twelfth floor. On the eighth floor, the defendant got on. He told her to put her hand on the open button, and then told her this was a stickup. He put a knife in her side and a dirty rag in her mouth. They walked upstairs to the ninth floor. He told her to face the wall, then took her money and phonograph records. He told her to take her clothes off and to get on the floor. He slapped her in the face when she wouldn’t be still. He then had intercourse with her. After he left, she put her coat on and tried to catch him but failed. She went to her sister’s apartment and called the police. She attended a lineup on January 15, but was unable to identify anyone. On January 16, she returned to view another lineup and at that time identified defendant. Three of the people in the lineup were about 17, and the fourth person was older. Afterwards, she gave a statement to Officer Severin in defendant’s presence. The defendant cut in several times to state that he didn’t do it. He then said that he did it, that he was sorry, and asked her not to sign a complaint. She married after the occurrence.

On cross-examination, she testified that she weighed 170 pounds. She had described her attacker as a male negro about 17 or 18 years old, and about five feet five and a half or five feet six inches. She did not believe that she told any officer that her assailant was five feet ten inches. He weighed about 130 pounds, and was wearing light colored khaki pants, a brown or beige cream colored three quarter length coat and a striped cap. She next saw the defendant in the early part of January at an A & P Food Store. She first heard his voice, then turned and looked at defendant. After looking at him, she told her sister, who was with her in the store, that was the man. Her sister knew defendant’s nickname and had seen him in the neighborhood. She did not go to a hospital after the attack, nor did the police take any of her clothing. She never told anyone that she did not wish to prosecute or sign a complaint. On December 8, she told Officer Severin that she was going to get married, and didn’t want her husband to know anything about the incident.

Officer Thomas Munyon of the Chicago Police Department testified that about 10:15 p. m. on November 22, 1965, he was ordered to interview a rape victim. When they arrived, the complaining witness was sitting at the kitchen table, crying. She told them what had happened and described her assailant as being five nine to five ten, 130 to 135 pounds, dark complexioned, wearing a brown three quarter length coat and brown pants.

Officer James Severin testified that on January 16, defendant came to his office at about 4:40 p. m. The witness had told the mother that defendant was a witness to a shooting. Defendant, along with three other individuals, was placed in a lineup. Afterwards, the complaining witness gave a statement in defendant’s presence. Defendant, after first denying it, admitted committing the crimes. His mother came in, and he also admitted the attack to her. The complaining witness told him on December 8 that she had seen the man who attacked her, working at the A & P. On November 25, she had told him that she was reluctant to sign a complaint against the offender.

For the defense, Alberta Harris testified that she lived next door to defendant and had known him for five years. She was at his home at about 9:00 p. m. on November 22, 1965, and talked with him. She left defendant’s home about 9:15 or 9:30 p. m.

Harriet Pierre, defendant’s mother, testified that her son was home on the evening of November 22, 1965. He went to bed about 9:00 or 9:30 p. m., and she went to bed about midnight. He was in bed when her neighbor came in.

Defendant testified that he was 17 years old at the time of trial. When he first arrived at the police station on January 16, some police officers were bothering and teasing him, and told his mother to get out. One of the officers with Severin told him that they had his fingerprints on the elevator. He kept asking Officer Severin if he could see his mother, but was told to shut up. He never touched or bothered the complaining witness. He worked at the A & P in the afternoons for a while after Thanksgiving.

In rebuttal, the complainant identified a cap as the one defendant was wearing on the night of the attack.

Defendant contends that the trial court improperly admitted his oral statements into evidence. He argues first, that the failure of the police to allow him to> see his mother after his request rendered all subsequent statements inadmissible, and secondly, that the statements should have been suppressed because they were coerced and involuntary. In contending that the failure of the police to allow him to see his mother after request rendered subsequent statements inadmissible, defendant relies on Escobedo v. Illinois, 378 US 478 (1964). There, the United States Supreme Court held that where a suspect requested and was denied an opportunity to consult with his attorney he was deprived of “the Assistance of Counsel” in violation of the Sixth Amendment; consequently no subsequent statement made by him could be used against him at trial. Defendant in the instant case seeks to extend the Escobedo doctrine to include the denial of a minor suspect’s request to see his parent during interrogation.

In People v. Rosochacki, 41 Ill2d 483, 244 NE2d 136 (1969), defendant sought to suppress a confession which was made after he had been denied permission to see his priest. In upholding the admissibility of the confession, the court stated at page 491:

“We find no implication in Escobedo that its protections relating to in-custody interrogation by police were intended to apply to a defendant who seeks the assistance of anyone other than a lawyer.”

The constitutional right sought to be protected by Escobedo is the Sixth Amendment right to the advice of an attorney. The constitution affords no right to the presence of anyone other than a lawyer trained to protect the legal rights of those accused. While the presence or absence of a parent or responsible adult during the interrogation of a minor suspect may be a factor affecting the voluntariness of a confession, there is no constitutional right to the presence of a parent. We find that the Escobedo doctrine is not applicable to a request for anyone other than an attorney.

Defendant also argues that his statements should have been suppressed because they were coerced and involuntary. It is fundamental that the voluntariness of a confession is a question for the trial judge, who must weigh the credibility of the witnesses, and his finding will not be disturbed unless contrary to the manifest weight of the evidence. People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). Whether a confession is voluntary depends upon the totality of circumstances. In determining the totality of circumstances, factors to be considered include illegal detention, its duration, relentlessness of the interrogation, disregard of rudimentary necessities, failure to warn defendant of his constitutional rights, defendant’s age, experience and education. People v. Hester 39 Ill2d 489, 237 NE2d 466 (1968).

In the instant case the trial court’s determination that the statements were made voluntarily was not contrary to the manifest weight of evidence. The defendant was detained for less than three hours. Much of that time was spent in waiting for the complaining witness to arrive, in taking her statement and in conducting the lineup. Officer Severin testified that no one questioned defendant from the time Severin arrived at the station at 4:45 p. m. until he commenced questioning him at about 6:45 p. m. He also testified that the interrogation was completed at 7:05 p. m. Moreover the complaining witness testified that the statements were made by defendant at a time when he was not even being questioned. Although 17 years of age and without previous arrest, an examination of the record reveals that he understood the questions and the proceedings. His comprehension is also indicated by his request to the complaining witness that she not sign a complaint against him. Defendant was not deprived of any necessities. He had made no charge of physical coercion, and it is evident that the statements were not obtained by psychological coercion. Although the police officer deceived defendant and his mother about the real purpose of the station visit, that action had no coercive effect in obtaining a subsequent statement from defendant, There was nothing improper in having defendant present after the lineup while the complaining witness was giving a statement to the police. Moreover, defendant’s claim that, in Officer Severin’s presence, some officer made the false charge that the police had obtained defendant’s fingerprint from the elevator, was contradicted by Severin’s testimony. The trial court properly found that the statements made by defendant were voluntary, and admissible in evidence.

Defendant also contends that he was not proved guilty beyond a reasonable doubt, arguing that the complaining witness’s identification and testimony were insufficient to sustain the convictions.

The testimony of one witness, if it is positive and the witness credible, is sufficient to convict, even though that testimony be contradicted. People v. Cox, 22 Ill2d 534, 177 NE2d 211 (1961). The adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the trier of fact with a superior opportunity not only to hear the testimony of the witnesses but to observe their demeaner on the stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963). The complaining witness in the instant case had ample opportunity to observe the defendant from the time he entered the elevator until he left her. She testified that she saw him face to face as he talked to her in the elevator and several times as they walked in the hallway prior to the rape. Although her original description to the police as to defendant’s height was not precisely accurate, her entire physical description of her assailant and the clothing he wore was accurate. Moreover, she identified defendant in a lineup which was conducted fairly, and was careful enough to view two lineups before identifying him. Defendant attempts to argue that her identification of him was formed solely from hearing defendant’s voice in the store before she saw his face. However, the record reveals that when she heard the voice in the store, she turned and looked at defendant before telling her sister that it was the man. She did not identify him until she saw his face.

The complaining witness’ testimony was sufficient to prove defendant guilty beyond a reasonable doubt. Her testimony was clear and convincing, and corroborated by her immediate complaint to the police and by defendant’s oral admissions. She was unable to make an outcry during the assault because of the gag in her mouth. When she did attempt to resist, she was struck in the face by the armed assailant. Although she denied that she was reluctant to sign a complaint, any hesitancy about prosecuting the charges was explained by her approaching marriage and her wish not to disclose the incident to her future husband. While the lack of medical examination of the rape victim and of an examination of her clothing are factors to be considered by the trial court, such omissions of themselves do not cast a reasonable doubt as to defendant’s guilt.

Finally, defendant argues that the alibi testimony offered in his behalf was unimpeached, and thus raised a reasonable doubt of the guilt. Any conflicts in testimony were for the trial court to resolve, and it was not obliged to believe alibi testimony presented by the defense. People v. Jackson, 95 Ill App2d 28, 237 NE2d 858 (1968). Since the neighbor’s testimony accounted for defendant’s whereabouts only up to 9:30 p. m., and the crimes were committed at about 10:00 p. m., in a building only one block from defendant’s residence, the only alibi testimony covering the period of the crimes was that of defendant and his mother. The trial court did not err in rejecting that testimony.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE STAMOS

text:
    Barbara Kozak, Formerly Known as Barbara Tucker, Respondent-Appellant, v. Richard Tucker, Petitioner-Appellee.
    Gen. No. 52,898.
    First District, Fourth Division.
    September 3, 1969.

      Arthur Abraham, of Chicago, for appellant.
    Ernest K. Koehler, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Petitioner filed a petition on October 16, 1967, for rule to show cause as to why respondent should not be held in contempt for failure to comply with an agreement between the parties which was incorporated in a divorce decree entered September 10, 1962. Respondent appeals from an order of court directing that respondent conform to the agreement. The agreement pertained to alimony, support, custody, fees and all claims, demands and rights of the parties in their respective personal and real estates.

The petition set forth part of the agreement:

“5. Barbara agrees that immediately upon the death of her mother, Mrs. Mollie Rosen, she will create a trust and execute and deliver all documents required to create such trust. The trustee named shall be a corporate trustee with headquarters located in Chicago, Blinois. Barbara agrees to assign, pay and deliver to such trustee as the principal of the trust at least fifty percent (50%) of all money and property which Barbara receives upon the death of her mother, or as a consequence of such death, from the following sources: (a) the estate of her mother or under the terms of her mother’s will; (b) any trust created by her mother; (c) the estate of or under the terms of the will of Harry L. Madorin, deceased; and (d) any trust created by Harry L. Madorin, deceased. Barbara agrees that said trust shall provide that the income shall be paid to her during her lifetime and upon her death the income and the principal shall be paid to the children of the parties hereto, in equal shares, and to their descendants, per stirpes.”

Petitioner alleged that respondent wilfully failed and refused to comply with the foregoing in that the Estate of Mollye Rosen was opened October 16,1962 and no trust had been created and the funds for said trust are being dissipated. Respondent filed an answer alleging that the will of Mollye Rosen, the mother of respondent who died on October 4,1962, leaves a far more substantial share to the two children of petitioner and respondent than respondent would be required to leave said children under the trust to be created under the terms of the divorce decree. The answer also stated that respondent had executed a trust agreement, a copy of which was attached. It provided for distribution of the trust estate upon her death to her three children (two of whom were the children of her marriage to petitioner and one the offspring of respondent and her present husband). It also provided that the distributable property be “subject however to any pledges or assignments heretofore made of said property.” The answer prayed that the court examine and approve said trust agreement with the LaSalle National Bank, as trustee, and that the court adjudge, determine and decree that the respondent has in all respects complied with the terms of the agreement incorporated in the decree of divorce.

At the hearing no evidence was adduced by either party but petitioner argued that the trust agreement did not conform to the decree and that more than 50% of the trust might be withdrawn before the time of distribution. Respondent contends that since the two children of the parties would receive a more substantial share, an order requiring her to comply becomes “mere nonsense.”

The court found that the trust was not in conformance with the agreement incorporated in the decree and ordered respondent to comply. The order also stated:

[T]his is not intended to limit the share of any trust created but rather to place a minimum upon the amount allotted to the children. Said 50% shall not be reduced by any pledges or assignments after the date of the death of Mollye Rosen.

The court properly ordered the respondent to take steps necessary to conform to paragraph 5 of the agreement incorporated in the divorce decree.

Respondent also appeals from the order granting petitioner’s counsel the sum of $100 as attorney’s fees. The argument is that this payment should not have been ordered since petitioner owed respondent $10,000 but there is nothing in the record to indicate any such debt. We find no error in this order.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Horace Nix, Defendant-Appellant.
    Gen. No. 51,952.
    First District, Second Division.
    September 9, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago- (Morton Zwick, Marshall J. Hartman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.