text:
    Western Terrace Building Corporation, an Illinois Corporation, Plaintiff-Appellee, v. Village of Palatine, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,683.
    First District, First Division.
    November 4, 1968.
    Rehearing denied November 27, 1968.

      Jack M. Siegel and Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (Jack M. Siegel, of counsel), for appellant.
    Philip R. Toomin and John M. Daley, of Chicago, for Appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This appeal is taken from a declaratory judgment of the Circuit Court of Cook County holding that the zoning ordinance of the defendant-appellant, the Village of Palatine, is null and void in its application to plaintiff’s property. The declaratory judgment permits the plaintiffappellee, Western Terrace Building Corporation, to use its property for multiple-family units (R-3 — General Residence District) eliminating the restriction to single-family units (R-2 — Single-Family Dwelling District).

The subject property consists of approximately thirty-five acres of vacant, unsubdivided land fronting on Palatine Road within the corporate limits of the defendant Village. The property had been classified for R-2 single-family purposes under the comprehensive zoning ordinance of 1957 and was so classified when purchased by the plaintiff. The plaintiff began acquisition in the latter part of 1965 with the purchase of five acres and purchased the remaining thirty acres early in 1966. Plaintiff does not deny that he purchased with knowledge of the zoning classification.

Application was made by the plaintiff to the Village to reclassify the subject property from single-family use to apartment use. The hearing before the Zoning Board of Appeals resulted in a recommendation against granting the reclassification. This recommendation was approved by the Village Board on May 23, 1966. The instant suit was filed by plaintiff on July 1, 1966, and subsequently proceeded to trial.

The trial court held that placing the plaintiff’s property in the R-2 “Single-Family Dwelling District” classification was an arbitrary action by the Village bearing no relation to the public health, safety, morals, convenience and general welfare of the people. The Court also found that the highest and best use of the plaintiff’s property was for multiple-family units and that such units would not “adversely affect the residential property east and/or west of the subject property.” The Court ordered that the plaintiff be permitted to use the land for multiple-family units. The Village appeals this final order. No questions are raised on the pleadings.

The Village raises the following issues for review: (1) has the plaintiff overcome the presumption of validity attaching to the zoning ordinance of the Village of Palatine; (2) is the zoning ordinance of the Village of Palatine, as applied to the subject property, a valid exercise of the legislative authority vested in the President and Board of Trustees of the Village. The Village maintains that the trial court ignored the fact that the subject property was similar in all respects to the surrounding areas which had been developed and were now being developed for single-family use.

The plaintiff contends that the Palatine zoning ordinance is invalid as applied to its property, because the ordinance fails to make due allowance for existing conditions and for consideration of property values. The plaintiff further contends that the presumption of validity attaching to the zoning ordinance has been overcome in the case at bar by the evidence and by the physical character of the area in question.

The rule is well-settled in Blinois that a presumption exists in favor of the validity of a zoning ordinance and the one who attacks such an ordinance has the burden of overcoming the presumption by proving with clear and convincing evidence that, as applied to him, it is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96. If there is any room for a reasonable difference of opinion, the Court will not substitute its judgment for that of the legislative body. Trendel v. County of Cook, 27 Ill2d 155, 161, 188 NE2d 668; Exchange Nat. Bank v. County of Cook, 25 Ill2d 434, 439, 185 NE2d 250.

The subject property is bounded on the north by Palatine Road. Although several witnesses (and the Palatine Master Plan) described the highway as a limited access junior expressway, Palatine Road tapers to approximately twenty-four feet wide in front of the plaintiff’s land. However, to the east and west of the subject property Palatine Road is approximately fifty-four feet wide with four lanes of moving traffic. There are also service roads, twenty-two feet wide, on either side of Palatine Road.

On the north side of Palatine Road across from the subject property is an area completely zoned and developed for R-2 single-family purposes. The area lying to the west of the subject property on the south side of Palatine Road is zoned for R-l and R-2 single-family uses.

South and southwest of the subject property is a vacant tract of ninety acres fronting on Northwest Highway. This tract is owned by the Winston Park Northwest Corporation (hereinafter referred to as Winston Park), a subsidiary of Winston-Muss Corporation, and is being developed as the “Willow Creek” project. The owners applied for a reclassification of a certain portion of the property from B-l “Shopping Center District” to B-2 “General Service District,” in order to permit as a special use, an auto service station and motel fronting on Northwest Highway. Winston Park also asked that a portion of the tract which had been zoned M “Manufacturing District” be reclassified as B-l “Shopping Center District.” The Zoning Board of Appeals conducted a hearing on the matter about the same time the plaintiff’s request was before them and recommended that the petition of Winston Park be denied. The Village Board, however, granted the zoning change. The “Willow Creek” development will consist of two ten-story office buildings, a 50,000 square foot shopping center, a motel, an auto service station, 740 apartment units on a minimum of twenty acres, an enclosed movie theater, and a twenty-five acre park.

Directly east of the subject property was a manufacturing zone. Sometime between January 1958, and January 1966, a portion of the manufacturing zone which had previously been unincorporated was annexed into Palatine as R-2 land. However, that portion of the tract which abutted the plaintiff’s land remained zoned M “Manufacturing District.” In March of 1967, while the instant case was pending, Winston Park, the owner of the tract directly east of the subject property, petitioned that their property be annexed into the Village under R-2 “Single-Family Dwelling District.” On April 3, 1967, the Village Board approved the annexation. Winston Park then subdivided the property into 138 single-family lots and during April and May of 1967 contracted to build 65 houses in the area. None of the houses were under construction at the time of the trial in June 1967.

Plaintiff proposes to build 600 apartment units in sixteen buildings on the subject property. The two larger structures would be three-story buildings and would be approximately twenty-seven feet high. All of the buildings would be of masonry construction.

Stanley Glodeck, the plaintiff’s architect, testified that when the site plan for the subject property was prepared, the vacant land to the east was zoned M “Manufacturing District.” He further testified that the soil in the southwest section of the subject property was silty in nature making it uneconomical to develop the property for single-family dwellings. The witness also stated that Palatine Road is a very fast type junior expressway and he had oriented the buildings to face away from the road.

Charles W. Greengard, plaintiff’s consulting engineer, testified that in 1959, he had prepared for the then owner (not the plaintiff) a preliminary subdivision plan for ninety single-family homes. The project never went ahead because of the requirement for fill (200,000 cu. yds.) and because of the necessity of digging a drainage ditch to relocate Salt Creek. He further testified that the original owner sold the property to another developer who hired him to prepare additional plans, but this project did not go through either for the same reasons. It was the witness’s opinion that the property is not suitable for single-family development.

George Kranenberg, plaintiff’s planning and zoning expert, testified that two factors have significantly affected the subject property. The first of these factors was the development of the interchange of Route 53 and Palatine Road. This interchange, the witness explained, greatly changes the traffic pattern as it relates to Palatine Road and causes the road to be a division line between the extensive single-family development on the north and the subject property on the south. The second factor is the “Willow Creek” project to the south and southwest of the subject property. Kranenberg felt that “Willow Creek,” with its 740 apartments, a 175-room motel, the theater and the two ten-story office buildings, would have a tremendous impact on the entire area and destroy the area for single-family use. He also stated that the residential areas east and west of the subject property were old subdivisions which had never developed fully. In his opinion, the highest and best use of the property is for multiple-family dwellings.

Ralph Martin, a real estate broker and appraiser in the northwest suburban area, testified for the plaintiff that, in his opinion, the highest and best use of the subject property was for multiple-family uses. The witness also testified that the subdivision to the west of the subject property was only fifty percent developed and that only part of it had sewer and water facilities. The property to the east of the subject property was only about twenty percent developed and had been vacant for ten or twelve years until the recent development by Winston Park. Martin felt that the plaintiff’s development would have no effect on the homes on the north side of Palatine Road because it is separated from them by a 150 foot right-of-way and six lanes of moving traffic. Furthermore, he stated that multiple-family units on the subject property would only be an extension of the apartment development projected for the “Willow Creek” project to the southwest.

Joshua Muss, President of Winston Park and senior Vice-President of Winston-Muss Corporation, testified that his company had acquired the land east of the subject property in 1957 when it was zoned for manufacturing use. In 1965, and again in 1966, the company petitioned for rezoning to single-family purposes. Both petitions were denied. The requested zoning change was granted in 1967. Muss stated that he did not think the presence of Palatine Road and its interchange with Route 53 had inhibited the development and sale of property north of Palatine Road and south of the road, east of the subject property. The witness also testified that the “Willow Creek” project would not have an adverse effect on the marketability of the subject property for single-family purposes since the nearest building proposed would be 400 feet from the southwest corner of the subject property and no buildings would be located directly south of the property. The motel, theater and office buildings proposed would be on the Northwest Highway 1500 to 2000 feet from the plaintiff’s property. Also, there would be a twenty-five acre park south of the subject property. The witness thought that approximately 125 lots could be developed on the subject property and that the cost of removing and filling in quicksand would not be material.

Richard W. Manke, a real estate appraiser, testified for the defendant that, in his opinion, the highest and best use of the subject property which would have no depreciatory effect on the surrounding area would be for single-family use. The witness stated that the interchange of Route 53 and Palatine Road, located one-half mile away to the east of the subject property, would actually have a positive influence on the value of the subject property because the property was more accessible to the home buyer and was far enough removed so that it was not even in sight. Also, there had been no noticeable increase in traffic on Palatine Road. Manke further testified that if plaintiff was allowed to develop his property with multiple-family buildings, the surrounding properties would be adversely effected.

Rolf C. Campbell, a city planning and zoning consultant, testified that the highest and best use of the subject property is for single-family uses. He said his opinion was based on the suitability of the property for single-family use, the need for single-family development in the area, and compatability with surrounding uses. The witness stated that the subject property draws its character from Palatine Road while the “Willow Creek” project area, zoned for the most part B-l, is associated with the Northwest Highway. Campbell further testified that he thought multiple-family development of the subject property would adversely affect the livability of single-family homes on Palatine Road.

There was also a considerable volume of testimony concerning the value of the subject property zoned for multiple-family use as opposed to the property zoned for single-family dwellings. Suffice it to say that the property will be greatly enhanced in value if it is rezoned for multiple-family purposes. There was also much evidence concerning traffic conditions and the general character of the area surrounding the subject property.

We have not attempted to set forth the testimony of the various witnesses in great detail. However, since the reasonableness and validity of a zoning ordinance is determined upon the particular facts of a case (La Salle Nat. Bank v. City of Chicago, 5 Ill2d 344, 125 NE2d 609) we have briefly summarized some of the highlights of the evidence in the case at bar.

It is well settled in Illinois and most other jurisdictions that zoning ordinances are enacted by municipalities under their police power. People ex rel. Schimpff v. Norvell, 368 Ill 325, 13 NE2d 960. Such ordinances are for the purpose of creating permanent conditions throughout a village, and are designed to take care of problems of the present as well as those of the future, to the extent that they can be reasonably anticipated. Mercer Lumber Companies v. Village of Glencoe, 390 Ill 138, 60 NE2d 913. However, when it is shown that there is no reasonable basis in public welfare requiring the restriction and the resulting loss and the gain to the public is small as compared to the hardship imposed on the landowner no valid basis for the exercise of police power exists. Under these circumstances the zoning ordinance must be held invalid as applied to the particular property in question. Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 182 NE2d 147; Liebling v. Village of Deerfield, 21 Ill2d 196, 171 NE2d 585. Thus, the ultimate legal determination that must be made in every case is whether the zoning classification arbitrarily or unreasonably restricts the use of the land in question. Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, 167 NE 2d 406.

In determining whether a particular zoning ordinance is in the interest of public welfare, each case must be considered on its own particular facts. Among the factors to be given consideration are the character of the neighborhood and the use to< which nearby property is put, the extent to which property values are diminished by the restrictions imposed by the ordinance, and the gain to the public as compared with the hardship imposed upon the individual property owner. La Salle Nat. Bank v. City of Chicago, 5 Ill2d 344, 125 NE2d 609; Hannifin Corp. v. City of Berwyn, 1 Ill2d 28, 115 NE2d 315.

In the case at bar there is conflicting expert testimony about several factual issues including whether the single-family residences to the north, east, and west, will be detrimentally affected by multiple-family development of the subject property. The resolution of such conflicting views is difficult and, in the final analysis, must depend on the facts and circumstances of each case. Wehrmeister v. County of Du Page, 10 Ill2d 604, 141 NE 2d 26. The trial judge, who saw and heard the witnesses testify and who had the numerous exhibits before him determined that the ordinance as it affected the subject property did not bear any reasonable relation to the general welfare of the Village. When testimony is contradictory it is well established that in a trial without a jury the determination of the credibility of witnesses and the weight to be accorded their testimony are matters for determination of the trial court and its findings will not be disturbed unless they are manifestly against the weight of the evidence. Northern Trust Co. v. City of Chicago, 4 Ill2d 432, 123 NE2d 330.

The evidence establishes that the property to the east of the subject property had been zoned manufacturing and before the recent activity of Winston Park the property had been only slightly developed. The zoning change from manufacturing to single-family residential came after the plaintiff had acquired the subject property. The evidence also shows that the property to the south and southwest of the subject property is owned by Winston Park and was given special zoning changes the same time plaintiff’s application was denied. From an examination of the aerial survey exhibit it clearly appears that plaintiff’s tract of land and that of Winston Park are parts of a vacant and undeveloped prairie with no distinguishing boundary between them. Winston Park is going to develop part of its land with seven six-story apartment buildings and two ten-story office buildings. However, nowhere in the ordinance passed by the Village does there appear any restrictions on the location of these buildings. The only testimony about building locations came from Joshua Muss, who stated the nearest building would be 400 feet from the southwest corner of the subject property. He also stated there would be no buildings directly south of the plaintiff’s property. Changes in location of buildings can be made by the developer at will and without permission from the Village. There was testimony to the effect that the subdivision to the west of the subject property was only 50 % developed and that only part of it had sewer and water facilities. Only to the north of the subject property, across Palatine Road, is the land completely developed in single-family residences. These residences, the record shows, are separated from the subject property by Palatine Road, a junior expressway. In addition, there was testimony from George Kranenberg, a planning and zoning expert, that the recently completed interchange of Route 53 and Palatine Road has a great impact on the subject property and that the interchange in conjunction with the “Willow Creek” project destroys the area for single-family development. This testimony necessarily influenced the trial judge that the character of the area had greatly changed and that this changing trend in the development of the area made the single-family dwelling classification of the plaintiff’s tract unreasonable and arbitrary. La Salle Nat. Bank v. Village of Skokie, 26 Ill2d 143, 186 NE2d 46; Colvin v. Village of Skokie, 54 Ill App2d 22, 203 NE2d 457.

We are not unmindful of the rule that a purchaser with knowledge of a zoning restriction is not regarded favorably by the courts when he asks that the restriction be removed. Lapkus Builders, Inc. v. City of Chicago, 30 Ill2d 304, 310, 196 NE2d 682. Neither do we ignore the fact that much of the subject property is suitable for the purposes zoned. However, here, as we have indicated, the Village made massive changes in the abutting property after the plaintiff acquired the subject property. In many of the cases cited by the Village no changes occurred either in the general character or existing uses in the neighborhood since the plaintiffs acquired their properties as is the situation here. Under the facts herein presented, the relief granted by the trial judge is justified.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lee Andrew Gray (Impleaded), Defendant-Appellant.
    Gen. No. 51,103.
    First District, Fourth Division.
    November 6, 1968.

      Robert J. Breakstone, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Crime Charged : Murder.

Judgment : On July 5, 1960, on a plea of guilty, the trial court imposed a sentence of 18 years.

Proceedings on Appeal; On June 21, 1965, this court gave the defendant leave to proceed as a poor person, appointed counsel to represent him on appeal, and extended the time for filing record, abstract and briefs. The record was filed in due course, together with a report of proceedings, the court having previously directed that it be prepared without cost to defendant.

On March 6, 1968, the attorney appointed to represent defendant filed a petition for leave to withdraw from the case on the ground that he was unable to find any legal points which were arguable on their merits. He also filed a brief in support of the petition, in which he sought to comply with the requirements of Anders v. California, 386 US 738. This brief set forth three points as the only ones the defense counsel thought might arguably support the appeal:

1) The court did not properly admonish defendant as to the significance and consequences of changing his plea of not guilty to a plea of guilty;

2) The court committed prejudicial error in not granting defendant’s motion to suppress certain evidence;

3) The court committed prejudicial error in not granting defendant’s motion for a severance and for a separate trial.

On March 6, 1968, copies of his attorney’s motion and brief were served by mail upon defendant in the penitentiary, and thereafter he was notified by this court that he might have until May 17, 1968, to raise any points he might choose in support of his appeal. The records of this court show that defendant filed a response to the notification, in which he set up nothing new, but made the statement that in his opinion his constitutional rights were violated.

Opinion.

1) On June 27, 1960, defendant filed a jury waiver, and on June 28 the defendant’s then attorney moved the court to withdraw the plea of not guilty. The court properly advised defendant as to the effect of the granting of such motion. The defendant persisted in his motion and the court thereupon permitted defendant to enter a plea of guilty. It is the law that a plea of guilty can only be entered after the defendant has been advised by the court of his plea. (Ill Rev Stats 1961, c 38, § 732; c 110, § 101.26.) Noncompliance with the statute has been held to constitute reversible error. People v. Ross, 409 Ill 599, 100 NE2d 923.

In discussing a plea of guilty, in Krolage v. People, 224 Ill 456, 79 NE 570 the court said at page 459:

“The plea can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea. , . . The mere inquiry whether he understood that if he pleaded guilty the court would sentence him to the penitentiary, and his answering that he did so understand, was no explanation whatever on behalf of the court.”

In the instant case, the record discloses that the trial judge discussed with the defendant the significance of the plea of guilty, and advised the defendant of the consequences of a guilty finding to a charge of murder. In People v. Scott, 55 Ill App2d 375, 204 NE2d 586 the court said at page 378:

“The essentials of an admonishment have been complied with ‘if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.’ ”

The rule laid down in Scott was fully complied with in the instant case.

On July 5, 1960, the court again had the case before it, and by agreement between the State’s Attorney, the defendant and his counsel, all the testimony was stipulated to, and on the defendant’s plea of guilty, the court found him guilty of the crime of murder and sentenced him to imprisonment in the penitentiary for a term of 18 years.

2) At the arraignment the defendant was furnished a copy of a 5-page joint statement that he and a co-defendant had given to the police, and a copy of a 9-page statement which the defendant alone had given to the State’s Attorney’s office, together with a list of witnesses present when he made an oral confession. On March 24, 1960, the defendant filed with the court a motion “to suppress the evidence and testimony in the above entitled cause related to and in as well as certain alleged confessions” stating that the confessions were not voluntarily made.

3) On March 24, 1960, the defendant also moved for a severance and a separate trial, alleging, among other things, that

“the co-defendant has made certain incriminating statements and admissions, either orally or in writing, and to police officers of the City of Chicago, to the State’s Attorney of the County of Cook, out of the presence of your Petitioner, in which said oral and/or written statements and admissions, he has incriminated and implicated your Petitioner in the crime charged in the above entitled indictment. . . . That the defense of your Petitioner is antagonistic to and inconsistent with the defense of the co-defendant.”

This motion was continued from time to time until the defendant changed his plea from not guilty to guilty.

Defendant’s motion to suppress the evidence as well as certain alleged confessions, together with his motion for severance and separate trial, are waived by his pleading guilty. In People v. Milani, 34 Ill2d 524, at page 525, 216 NE2d 816, the court said:

“A plea of guilty, voluntarily and understandingly entered, obviates the need to introduce evidence against an accused and waives all defects and errors not jurisdictional. (People v. Scott, 29 Ill2d 429; People v. Terry, 12 Ill2d 56.) ”

In People v. Scott, 29 Ill2d 429, at 431, 194 NE2d 197, the court said:

“It has been a common conclusion of this court that a plea of guilty, voluntarily and understandingly entered, waives all defects not jurisdictional, for the reason that the necessity to prove the factual situation is removed by defendant’s admission of guilt. (People v. Popescue, 345 Ill 142, 152; People v. Terry, 12 Ill2d 56; People v. Fisher, 21 Ill2d 142, 144.)”

Under the holdings in those cases, the judgment of the court in the instant case was proper.

In addition to studying the briefs filed by defendant and his attorney, we have made a full examination of all proceedings in accordance with the dictates of Anders, supra, and we conclude that the legal points raised are not “arguable on their merits,” and that the appeal is “wholly frivolous.” Defendant’s attorney is therefore given leave to withdraw, and the judgment of conviction is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herbert Lee Smith, Defendant-Appellant.
    Gen. No. 52,103.
    First District, Second Division.
    November 6, 1968.
    Rehearing denied December 16, 1968.

      Irwin L. Frazin and Howard T. Savage, Starke, Anglin, Savage, Frazin, Stewart & May, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Herbert Lee Smith, was indicted for the crimes of rape and armed robbery. After a bench trial, he was found guilty of rape and not guilty of armed robbery. He was sentenced to a term of 4 to 8 years in the penitentiary. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt, and that the trial court erred in admitting evidence of his escape from police custody.

Evidence for the State:

The complainant testified that she lived in the area of 42nd and Prairie in Chicago, with her husband. At approximately 2:30 or 3:30 a. m. on September 11, 1966, while her husband was at work, she was sitting on her front porch with her girl friend. Her girl friend went upstairs, and shortly afterwards, defendant came up to the front porch and asked whether a certain man lived at that address. As the complainant was putting her key in the door to go inside, the defendant put his hand over her mouth and a gun to her head, threatening to kill her if she said anything. She had never seen the defendant before that night. He was wearing a brown jacket, a sweater, dark shirt and no tie, a wide black belt, and had a pair of handcuffs. (She testified that he wore the same sweater in the courtroom during trial.) He forced her to accompany him to a basement in a nearby abandoned building where he made her take off all her clothing except her slip. Holding the gun, he then forced her to lie down on some old boards on the concrete floor and raped her. The defendant interrupted the act to go outside to investigate a noise, and the victim fled, running down the street clad only in her slip. She ran into Albert Bell, a friend of her husband, who was talking to someone at the corner of 43rd and Prairie. She told him what happened, and after he gave her his sweater, Bell called the police and walked her home. When the police arrived, she described her assailant to them and they went to look for him. They did not return. She had one can of beer during the entire evening. There was a big light on the street in front of her home and another light which they passed on the way to the basement. She suffered scratches on her back from the board, and went to the Michael Reese Hospital clinic two days later because of the pain in her back. About a month later, on October 12, 1966, while she and her mother-in-law were at a neighborhood laundromat, she saw the defendant taking clothes out of a washer. She saw only his face, and did not see what he was wearing. She ran across the street to tell the same Albert Bell who had been present the night of the rape. She then stopped a policeman and told him her story. The policeman entered the laundromat and arrested the defendant.

Albert Bell testified that he had known complainant and her husband for about three years. On the night of the incident, he had just finished work and was standing at the corner talking with a friend, when the complainant ran towards them in her slip, stating that she had been raped. She was screaming and hysterical and looked as though she had been rolling in dirt. He gave her his sweater, attempted to locate the defendant, and then called the police. The police arrived and wrote down the information. He then went home, stating that he did not take the victim to her home.

Officer Anthony Palmsone of the Chicago Police Department testified that on October 12,1966, the complaining witness approached him, stating that she had just seen the man who had raped her a few weeks previously. He testified that she told him that the man was wearing a black wide belt and was carrying handcuffs. He arrested defendant who had a black belt, an ammunition carrier and a pair of handcuffs. Defendant denied any knowledge of the crime. No lineup was conducted, but the plaintiff positively identified the defendant as the man who had raped her. The officer testified that there was no police report regarding the rape.

Over objection of defendant, Officer Charles Burns of the Chicago Police Department testified that on October 13, 1966, he was assigned to transfer prisoners to the Criminal Courts building. While taking the men to the fourth floor, he saw one of the prisoners bolt to the side. As he apprehended that prisoner, defendant fled down the hallway and escaped.

Officer Augustus Lett of the Chicago Police Department testified that he was notified of defendant’s escape and was stationed outside of defendant’s home. On the day of the escape, he saw defendant, asked his name and was told it was Bobby Smith. Since defendant fit the description which had been given, he placed him under arrest, and Officer Burns later identified him at the police station. Defendant did not attempt to fight or resist arrest.

Evidence for the Defense:

Douglas L. White, Emma Tunstill and Louis Cunningham, friends of defendant, testified that they were with him on the night of the rape. In substance, they testified that several people including themselves and defendant, were drinking at two taverns from Saturday evening, September 10, until about 5:00 a. m. Sunday morning.

Defendant, a guard at the projects, testified that he did not work on the day of the occurrence; that he had had never seen the complainant prior to the time of his arrest; and that he was drinking with the people who testified on his behalf on the evening in question. On October 12, 1966, while in the laundromat, his belt cartridge holder and handcuffs fell out of his laundry. The complainant asked him if he knew her and he replied that he did not. A few moments later he was arrested by the police officer. He left the court building after his arrest because he was afraid of being convicted of a crime he had not committed.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt because of the discrepancies in the State’s evidence. We do not agree. Specifically, defendant argues that there were nine discrepancies or weaknesses in the State’s evidence. We cannot attach the magnitude to the discrepancies in the State’s case that defendant does, and we find that many of the apparent conflicts in the testimony can be resolved easily.

Defendant first argues that the accuracy of the victim’s identification is in doubt since she was hysterical on the night of the occurrence and did not see defendant until a month later. However, the victim had ample opportunity to observe her assailant. First observing him on her front porch, she testified that there was a large light in front of her home and another on the route that they took to the basement. She was with him for some time, and he made no attempt to conceal his identification. While any woman would be hysterical after such an experience, the victim recalled in detail what had occurred and also the identification of the assailant. There was no indication that her emotional reaction prevented her from being an observant witness. The fact that she did not see the assailant for a month was a factor to be considered by the trier of fact, but did not render the positive identification unsatisfactory.

In questioning the accuracy of the complainant’s identification, defendant cites People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966). This was also a case involving rape and the court stated:

“Although it is true that the testimony of a single witness, if it is positive and the witness credible, is sufficient to convict even though it is contradicted by the accused, (citations omitted) in this case the identification of the defendant by the complaining witness was weakened by several factors, while the defendant’s alibi was positive and unimpeached.”

In that case the complainant was raped in the dark, and her descriptions of defendant were vague and contradictory. In the case at bar, the victim had an excellent opportunity to observe the defendant, and made a positive identification. We do not agree with defendant that her identification was doubtful, vague or uncertain. And, as stated in Gardner, supra, a positive identification by one witness with sufficient opportunity to observe the defendant is enough to sustain a conviction. People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962); People v. Upshaw, 58 Ill App2d 256, 207 NE2d 728 (1965).

Defendant next urges that it was a strange coincidence that Albert Bell was present both on the night of the rape and again at the time of the identification and arrest of defendant. We see nothing strange about it. The victim and Bell were neighbors, and there was nothing unusual about their frequency of contact; rather, such frequency would seem to be normal among neighbors. Indeed, Bell’s unimpeached testimony that she made an immediate outcry, was wearing only a slip and was excited and nervous was strong corroboration that the victim had been raped. People v. Finley, 22 Ill2d 525, 177 NE2d 149 (1961).

The fact that no police report was made by the police officers who were called on the night of the occurrence was explained by Officer Palmsone. He testified that the police who gave chase to the rapist evidently were unable to find the complainant upon their return, and so made no report.

The complainant did not go to a doctor or hospital for an examination of any kind until two days later, and then she went to a clinic because of a pain in her back. She testified that except for a few scratches, she was not injured and felt no pain. Her failure to seek immediate medical assistance is understandable in light of the surrounding circumstances.

Defendant next points out that the complainant testified that when she saw defendant at the laundromat, she saw only his face, while the arresting officer testified that in describing defendant, the victim said that the defendant was wearing a wide belt and handcuffs. However, an examination of her testimony reveals that she testified she told the policeman: “I says, T know him alright, I don’t forget. I haven’t forgotten his face. If I am right he has a black, wide belt on with a silver buckle and a pair of handcuffs.’ ” Thus it can be seen how the officer could have misunderstood her remarks and thought that she had stated that the defendant was wearing the belt and handcuffs in the laundromat.

At trial, the victim testified that her girl friend went upstairs with her husband, and at a preliminary hearing testified that her friend went upstairs to get her cigarettes. While there is nothing inconsistent or conflicting in those statements, even if considered a discrepancy, such testimony would have no relevance to the charge of rape.

Defendant further argues that the victim testified at trial that she was raped in a basement, while before the grand jury, she stated that “. . . he went down into the basement but he did, not go inside (emphasis added) because it was all boarded up, . . . .” Obviously while the choice of expression was not perfect, there was no contradiction in this testimony.

Defendant also cites two contradictions in the State’s testimony which cannot be reconciled. The victim testified that Bell walked her home on the night of the occurrence and they met the police in front of her home. Bell testified that he did not walk her home, and the police came to the corner where he was standing. She also testified that Bell told her on the night of the occurrence that the rapist probably worked as a project guard, while Bell testified that he told her this on the night that defendant was arrested. These contradictions are minor, and did not greatly affect the credibility of the State’s witnesses. This court has previously stated:

“A contradiction in the testimony of a witness does not render his testimony nugatory, but goes to the weight and credibility of his testimony.” City of Chicago v. Carney, 34 Ill App2d 303, 180 NE2d 729 (1962).

Trial commenced about three months after the arrest; surely, some of the secondary events would be blurred by the passage of time. The minor discrepancies do not, as a matter of law, affect the credibility of the State’s witnesses. See People v. Clay, 27 Ill2d 27, 187 NE2d 719 (1963).

As our Supreme Court has stated:

“Where the evidence is merely conflicting, this court will not substitute its judgment for that of the jury, and this rule applies to contradictory evidence on alibi.” People v. Rawls, 389 Ill 110, 113, 58 NE2d 895 (1945).

In the instant case, the trial judge had the opportunity to determine the credibility of all of the witnesses and observe their conduct and demeanor. He chose to believe the victim and the corroborating testimony of Bell rather than the defendant and his alibi witnesses. We see no reason to disturb the conclusions of the trial judge, and we find that the defendant was proved guilty beyond a reasonable doubt.

Defendant’s next contention is that evidence of his escape from police custody was improperly admitted.

While conceding that People v. Talbe, 321 Ill 80, 151 NE 529 (1926) stands for the proposition that evidence of an escape from custody after arrest is admissible in evidence, defendant urges that we find that the trial judge erred in admittting testimony regarding the escape since such evidence established the commission of another crime for which he was not on trial.

However, our Supreme Court has recently affirmed the principle that testimony regarding an escape from custody, though showing the commission of another offense, is admissible as evidence tending to prove guilt and is to be considered together with all other evidence in the case. People v. Harper, 36 Ill2d 398, 223 NE2d 841 (1967); People v. Gambino, 12 Ill2d 29, 145 NE2d 42 (1957).

Accordingly, the trial judge did not err in allowing evidence of the escape from police custody.

For the foregoing reasons, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    City of Chicago, a Municipal Corporation, Respondent-Appellant, v. Rufus Thomas, Petitioner-Appellee.
    Gen. No. 51,599.
    First District, Third Division.
    November 7, 1968.

      Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen, Sydney R. Drebin and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellant.
    Raymond J. Miller, of Chicago (Allan L. Blair and Raymond J. Miller, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court, County Division, granting the petitioner’s petition pursuant to the Insolvent Debtors Act (Ill Rev Stats, chapter 72) which secured his release from the custody of the Superintendent of the House of Correction. The petitioner had been taken into custody pursuant to an order from the Housing Court Division of the Circuit Court for nonpayment of a $2,000 fine for violations of the Building Code of the City of Chicago, relating to the care, maintenance, and repair of a building containing housing units.

On May 9, 1966, the Housing Court entered an order committing the defendant to the House of Correction to work out the fine at a rate of $5 per day, provided that such imprisonment did not exceed six months. On that date, Mr. Thomas filed his petition in the County Division of the Circuit Court and prayed that the warrant of arrest be quashed and that he be released from custody under the provisions of the Insolvent Debtors Act. The respondent, the City of Chicago, filed a verified answer to the petition and contended that the relief provisions of chapter 72 were not applicable to the assessment of fines for violations of municipal ordinances.

The trial judge admitted that he had looked at the file of the prior proceedings in the Housing Court and admitted that he had seen the word “Fine” written in the record. However, the trial judge said “I would just as soon not make the file part of the record.” The trial court then entered the order securing the petitioner’s release.

It is from this order of release that the respondent prosecutes the instant appeal. The respondent contends that the trial court erred in applying the relief provisions of the Insolvent Debtors Act to the facts at bar. The relevant and operative section of the Insolvent Debtors Act is section 2 of chapter 72 which reads:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this act.”

The City argues that the petitioner does not come within the purview of this statute because the imposition of a fine does not create a debtor-creditor relationship and because an action for a violation of a municipal ordinance is a “quasi-criminal” action and is therefore not “a civil action when malice is not the gist of the action” within the intendment of chapter 72, section 2.

There was some dispute as to whether the City was appealing from both the Housing Court order and from the County Division order. This court is now satisfied that the City is appealing from only the order in the County Division quashing the commitment order. It should be noted that the heading of the instant appeal as it appears in the briefs, abstracts, and motions filed in this court does not properly reflect the position of the parties. It should properly be headed “Rufus Thomas, PetitionerAppellee v. City of Chicago, Respondent-Appellant” since such was the status of the parties in the cause from which this appeal arises.

The City has now filed a motion to supplement the record on appeal with the record of the Housing Court proceeding. The petitioner has also filed a motion to strike the requested supplementary portion of the record. We have taken both motions with this appeal and have decided to grant the respondent’s motion and to deny the petitioner’s motion. It should be emphasized that in so doing we are not consolidating these two cases on appeal, but rather are placing before this court all of the relevant portions of the record in this matter. The record of the Housing Court was alluded to and read by the trial judge in the County Division and a study of that record prompted him to conclude that the Insolvent Debtors Act was applicable in the case at bar. The correctness of this decision is the crucial issue before this court, and we see no reason why this court should be deprived of the benefit of having the same record before us now to insure a proper adjudication of the issue before us.

However, even if the supplemental record was not before us, the issue of the applicability of the Insolvent Debtors Act would be properly before this court. The petitioner advances the argument that since record of the former proceeding was never formally admitted into the record, this court cannot ascertain whether the Housing Court order imposed a fine or simply a civil money judgment where malice was not the gist of the action. Therefore, the petitioner concludes, there is no basis for finding that the County Division order was erroneous. This contention is not supportable for several reasons. Firstly, the petitioner himself admitted in the language of his petition that he was unable to pay the “fine” of $2,000. Secondly, the respondent, in its verified answer, made it clear that a fine had been imposed for violations of the City’s Building Code. Thirdly, the trial judge looked at the file of the former case and had to be well aware of the nature of that proceeding. In fact, the trial judge revealed a clear understanding of the dispositive issue before him when he stated:

“The problem I see is whether the order of the Housing Court is actually a judgment order, or an order of a fine. I think this is the only issue. . . . The matter before this court is shall a man be placed in jail as a result of a fine, or, is it a judgment for which he cannot be jailed unless malice is the gist of the action?”

The trial judge then concluded that the Housing Court entered a civil money judgment and therefore the petitioner was entitled to the relief of the Insolvent Debtors Act. The correctness of this decision is the issue before this court.

We fail to comprehend how the $2,000 assessment can be deemed to be anything other than a fine. It is not disputed that the petitioner was charged with violations of the Building Code, and it is a purely fruitless exercise in semantics to argue that a fine was not imposed by the Housing Court. The trial court apparently concluded that if a fine had been imposed, it exceeded its statutory limits and therefore must be construed as a civil money judgment rather than as a fine. The petitioner was charged with twenty-two separate violations of the Municipal Code. Section 1-2-1 of the Cities and Villages Act (Ill Rev Stats, c 24, § 1-2-1) provides that, except for civil penalties provided for failure to make returns or to pay taxes levied by the municipality, a fine or penalty for a violation of a municipal ordinance shall not exceed $500 for each offense. The order from which petitioner sought relief found him guilty “. . . of a violation of the ordinance described in the complaint.”

However, even if this court were to assume that the fine was excessive, the fine is not converted into a civil money judgment within the intendment of chapter 72, section 2. If the fine imposed by the Housing Court was in fact excessive, the proper means for its correction was an appeal from that order.

It has been consistently held that the imposition of a fine or penalty for the violation of municipal ordinances or of other penal laws of the state does not create the relationship of debtor and creditor so as to violate the Illinois Constitution’s prohibition against imprisonment for debt. City of Chicago v. Kenney, 35 Ill App 57; Kennedy v. People, 122 Ill 649,13 NE 213; City of Chicago v. Morell, 247 Ill 383, 93 NE 295.

This court similarly concludes that the meaning of “indebtedness” and “debtor” in chapter 72, section 2 does not embrace a monetary obligation incurred in the form of a fine or penalty for a violation of a municipal ordinance. To construe the language of the statute otherwise would frustrate and often negate the legislative purpose embodied in chapter 75, section 52 which reads:

“Whenever a person is found guilty of a violation of an ordinance, resolution, rule or regulation of a political entity and the judgment of a fine is imposed, the court may further order, in the judgment imposing the fine, that upon non-payment of such fine the person shall be imprisoned until the fine is paid or satisfied at the rate of $5 per day. However, no person shall be imprisoned for a longer period than six months for any one offense.”

In City of Chicago v. Kenney, supra, the court stated that such fines did not create a debtor-creditor relationship and went on to say at page 66: “The committal of the defendant until the fine is paid is necessary in such cases, and the power to do so indispensable to the safety of society, the preservation of good order and the enforcement of the ordinances.” To hold that chapter 72 is applicable to this petitioner is to make it possible for future violators of any or all municipal ordinances to escape punishment in the form of a fine or incarceration if they happen to be insolvent.

There can be no dispute that fines such as the fine imposed in the instant case have a punitive purpose, and thus it would appear that the petitioner’s construction of chapter 72, section 2 would lead to the anomalous result that malicious tortfeasors could not avail themselves of the statute’s protection while violators of municipal ordinances could find sanctuary within this section of the Insolvent Debtors Act. Therefore, we are forced to conclude that the instant action did not create an indebtedness within the meaning of chapter 72, section 2.

The Insolvent Debtors Act is also not operative in the case at bar since the instant case does not fall within the description in section 2 — “. . . a civil action when malice is not the gist of the action.” An analysis of the Illinois authorities which have dealt with the problem of classifying such proceedings reveals the conceptual difficulty encountered in attempting to so classify these cases. (See: Village of Park Forest v. Bragg, 38 Ill2d 225, 230 NE2d 868.) There appears to be no Illinois case which has construed these actions within the specific context of the Insolvent Debtors Act. However, a review of the Illinois cases reveals that actions to recover penalties for violations of city ordinances are civil in form and governed by the Civil Practice Act, although they are quasi-criminal in character. Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233; 10 ILP, Cities and Villages, etc., § 1193. In Flynn v. City of Springfield, 120 Ill App 266,269, the court discussed the nature of such an action:

“It is not a mere civil suit. While it is civil in form it is such only in form. It partakes largely of the criminal nature. The ordinances were not passed with the view of creating the relation of debtor and creditor.”

In view of the hybrid nature of ordinance violation suits, this court is of the opinion that the criminal nature inherent in such actions excludes such actions from falling within the purview of section 2 of the Insolvent Debtors Act.

Therefore, we conclude that the Insolvent Debtors Act had no application to the facts at bar. The order entered by the County Division of the Circuit Court releasing the petitioner from custody is reversed.

Reversed.

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


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James E. Womack, Defendant-Appellant.
    Gen. No. 51,244.
    First District, Second Division.
    November 12, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel),
    for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Junior Henderson, Defendant-Appellant.
    Gen. No. 51,389.
    First District, Second Division.
    November 12, 1968.

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

delivered the opinion of the court.

After a trial without a jury, defendant, Junior Henderson, was convicted of aggravated incest and sentenced to the penitentiary for a term of 5 to 10 years. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt and that the trial court made erroneous rulings as to the admissibility of certain evidence.

Evidence for the State:

The prosecutrix, daughter of defendant, testified that she was 14 years of age and had reached the 7th grade in school. On January 4, 1965, defendant called her into his bedroom at the family apartment located at 3318 W. Ogden Avenue, Chicago, and had sexual intercourse with her. At the time, four other members of the household were in the apartment; Everlean Golden, age 20, sister of defendant’s common-law wife; Johnny Turner, age 14, a stepbrother of the prosecutrix; Mary Henderson, age 3, a half sister; and little Junior Henderson, age 2, a half brother. Prosecutrix was preparing for bed at 10:00 p. m. when defendant asked her to fix some corn. She started to fix the corn, and then sat alone in the living room. Defendant called her to his bedroom and had intercourse with her. At the same time he called her into the bedroom, defendant also told her 14-year-old stepbrother to fix the bed in another room so their little brother could retire. Afterwards, she gave the corn to the defendant, and went to bed. The apartment consisted of six rooms with three bedrooms. That evening, prosecutrix shared one bedroom with Everlean Golden and Mary Henderson. Everlean had gone to their bedroom about 9:00 p. m., but was still awake after the act occurred. Prosecutrix told Everlean that she had something to tell her, but decided not to inform her. Viola Golden, who was described by prosecutrix as her mother, but actually was defendant’s common-law wife, was spending the evening at a cousin’s home. On January 5, 1965, prosecutrix went to the police station and on January 7, she was examined by a doctor.

She started having sexual relations with the defendant in the summer of 1962. At that time, the household consisted of her father and mother (Viola Golden), her brother and an older sister, Addie. These acts which were performed practically every weekend, continued until December 1962 and resumed in April 1964. She did not remember how many times the acts occurred each month, but thought that at least in one of the months it was 15 times or more. Ordinarily, they took place in the apartment in which the family was living, except for several instances when the acts occurred in an automobile or a house in which defendant was working.

On cross-examination, the prosecutrix testified that she spent every other weekend at her grandmother’s home in Chicago. On the weekends not spent at her grandmother’s home, her teen-age aunts stayed with the prosecutrix and slept with her. Everlean joined the household in June 1964, and during 1964 Addie left the home. At times all members of the household were present in the apartment when these sexual acts occurred. When he wished to have relations with the prosecutrix, defendant would tell the other household members that he wished to talk to her in the bedroom alone. At times he would also send his common-law wife to his mother’s home on the pretext that his mother wished to see her. In December 1964, her grandmother asked prosecutrix if she were pregnant, but she denied it. About the same time, an owner of a dime store accused her of taking some merchandise. Defendant paid for these items, although the prosecutrix had not taken them. She never went out evenings.

Doctor Delores Knoblock testified that she examined the prosecutrix on January 7, 1965, at the Cook County Family Court. Her examination revealed that the prosecutrix was about six months pregnant.

Evidence for the Defense:

Virginia Lee Askew testified that she was defendant’s aunt and operated a grocery store on South Pulaski Road in Chicago. The prosecutrix and her brother used to come to her store in the evening and stay around the neighborhood until about midnight. This occurred at least 6 or 7 times during 1964.

Rosie Henderson, mother of defendant and grandmother of prosecutrix, testified that the prosecutrix spent every other weekend at her home during 1962 through 1964. On alternate weekends, Rosie’s two young daughters, Ollie and Leatha, 14 and 12 years of age, would stay at the home of the prosecutrix and sleep with her.

Everlean Golden, sister of Viola, testified that she lived with the family since June 1964. On January 4, 1965, the whole family returned to the apartment at 6:00 p. m., and she was home the rest of the evening. Defendant took Viola to a cousin’s home to spend the night, and he returned about 11:00 p. m. The prosecutrix, Johnny Turner and she watched television until midnight. Ever-lean and the prosecutrix then retired to the bedroom which they shared with the three-year-old Mary. At this time defendant asked the prosecutrix to fix some corn. She fixed the corn, and the little brother gave it to the defendant, who was in his bedroom. Prosecutrix did not enter the defendant’s bedroom. Everlean was still awake when the prosecutrix went to sleep.

Johnny Turner testified that he was 14 years of age and that defendant was his stepfather. On January 4, 1965, he and defendant took his mother to spend the night at a cousin’s home. They returned about 11:00 p. m. He, Everlean, and the prosecutrix watched television in the living room, while defendant watched the same television from his bedroom. Everyone went to bed at about midnight. The prosecutrix was in the bedroom with Everlean, and Johnny Turner did not see her enter defendant’s bedroom.

Defendant testified that he was 38 years of age. Viola Golden was living with him; had two children by him and was expecting a third. In December 1964, the owner of a drugstore complained that he had caught the prosecutrix taking merchandise. Defendant paid for these items. A few days later, defendant caught her bringing a stolen dress into the apartment and ordered her to stay home. On that day he had learned from Viola that prosecutrix was pregnant. He told her that he was going to take her to a doctor, and she stated that she would not go. He denied ever having sexual intercourse with his daughter. On January 4, 1965, he asked her to fix corn for him, and his two-year-old son brought the com in to him. On January 5,1965, he was arrested.

Defendant contends that the State failed to prove him guilty of the crime beyond a reasonable doubt. We agree.

Where a conviction is based solely on the testimony of the complaining witness, who is a child, and the defendant denies the charge, the testimony of that witness must be clear and convincing or must be corroborated by other substantial evidence. People v. Kolden, 25 Ill2d 327, 185 NE2d 170 (1962); People v. Pazell, 399 Ill 462, 78 NE2d 212 (1948). And to sustain a conviction on the uncorroborated testimony of the prosecutrix, her testimony must be most clear and convincing. People v. Herzberger, 372 Ill 251, 23 NE2d 37 (1939).

In the instant case, we are not satisfied that the daughter’s testimony was of such a clear and convincing nature. She testified that these sexual acts, commencing in the summer of 1962, occurred practically every weekend, and with the exception of a few instances, always at the family apartment. Yet she conceded on cross-examination that she spent just about every other weekend away from home with her grandmother. We also find it difficult to accept the testimony of the prosecutrix that during all this time, defendant was able to conceal the crime from the other members of the household by stating that he wished to talk to the prosecutrix in his bedroom or by directing his common-law wife to leave the apartment on the pretext that his mother wished to see her. Further, in December 1964, when asked by her grandmother if she were pregnant, prosecutrix denied that she was. Certainly, this was an opportunity for the daughter to reveal what had occurred. Finally, in connection with the State’s evidence, an examination of the record discloses that much of the evidence was elicited from the prosecutrix by means of leading questions despite consistent objection by counsel for defendant.

The testimony of the prosecutrix becomes even less convincing in light of the evidence offered in behalf of defendant. Two members of the household testified that they were present in the apartment on the evening of January 4,1965. Everlean Golden testified that the prosecutrix was not in defendant’s bedroom at any time that evening, and Johnny Turner stated that he did not see her enter defendant’s bedroom at any time. Moreover, defendant denied the crime, and offered testimony as to possible bias on the part of the prosecutrix.

We conclude that the State failed to prove defendant guilty beyond a reasonable doubt. Accordingly, the judgment of the Circuit Court is reversed.

Judgment reversed.

BURKE, P. J. and LYONS, J., concur.

       Ill Rev Stats c 38, § 11-10 (1963).
      “Aggravated incest, (a) Any male person who shall perform any of the following acts with a person he knows is his daughter commits aggravated incest:
      “(1) Has sexual intercourse; or
      “(2) An act of deviate sexual conduct.”


author: PRESIDING JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Williams, Defendant-Appellant.
    Gen. No. 52,604.
    First District, Second Division.
    November 12, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; no appearance made in behalf of appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Carl W. Meyer, Defendant-Appellant.
    Gen. No. 52,533.
    First District, Second Division.
    November 12, 1968.
    Rehearing denied December 16, 1968.

      Samuel Nineberg and Bernard W. Mages, of Chicago (Samuel Nineberg, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a bench trial, the defendant, Carl W. Meyer, was found guilty of driving a motor vehicle while under the influence of intoxicating liquor in violation of Ill Rev Stats (1965), c 95%, § 144. Judgment was entered; the defendant was fined $100 and costs; and his driver’s license was revoked. After judgment and sentence, the defendant filed a post-trial motion alleging that the complaint (i. e., Illinois Uniform Traffic Ticket and Complaint) was fatally defective for failure to charge a crime, in that his copy of the complaint only contained the notation “drive under the influence.” The motion asked that the court vacate the earlier judgment adverse to the defendant, quash the complaint, and discharge the defendant. The motion was denied and the defendant appeals to this court renewing the grounds enumerated in his post-trial motion, namely, that the complaint was fatally defective due to the general language used therein, thereby failing to charge the defendant with a violation of c 95%, § 144. Hence, a sole question of law is presented in this appeal.

Initially, it must be stated that when reviewing courts conclude that an indictment, information or complaint is fatally defective, they do so on the basis that the defendant is prejudiced by said defect in that he is not properly advised of the nature of the charge against him thereby precluding him from properly and effectively presenting his defense. Nor could he effectively raise a double jeopardy defense in the future if faced with a subsequent prosecution for the same offense. See People v. Beeftink, 21 Ill2d 282, 171 NE2d 632 (1961).

In the instant case, the defendant does not argue that he was prejudiced by the alleged defect in the complaint. Indeed, such an argument would be without merit as the record shows that the defendant, through his witnesses, presented a defense intended to disprove the accusation of the State that he was intoxicated while driving a motor vehicle within this State.

The defendant does argue, however, that the judgment is void as the court was without jurisdiction, since the complaint written by the police officer and handed to the defendant at the time of such writing, failed to state an offense. This argument was interposed by the defendant at the trial but only after the judge, as the trier of fact in this non jury case, had found the defendant guilty of the charge. Such an argument can be made at any step in the judicial process, even for the first time on appeal, People v. Hill, 68 Ill App2d 369, 216 NE2d 212 (1966), since, if correct, the trial court would never have had jurisdiction of the subject matter and its judgment would consequently be void ab initio.

The record shows that the copy of the complaint given to the defendant by the police officer contained the handwritten printed words in all capital letters, “DRIVE UNDER THE INFLUENCE” whereas the copy of the complaint filed with and sworn to before the Clerk of the court had handstamped thereon in the language of the statute, “Driving a motor vehicle while under the influence of intoxicating liquor.” If we look only to the copy of the complaint in the possession of the defendant, it indeed fails to state an offense with specificity in conformity with the statute with which the defendant is charged with violating; i. e., Ill Rev Stats (1965), c 951/2, § 144, since one can violate that particular section of the Motor Vehicle Act by either driving under the influence of narcotic drugs or intoxicating liquor.

In his written brief and in his oral argument the defendant places reliance upon the case of People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381 (1962). In that case we did reverse a judgment finding the defendant guilty of driving a motor vehicle while intoxicated. Reversal was based upon the fact that the information, in addition to stating that the defendant drove a motor vehicle upon a public highway in violation of section 47 (UART) State, of Illinois, only stated that he violated said statute by “driving under the influence,” thereby not specifying if said driving was under the influence of narcotic drugs or intoxicating liquor. The information was held to be defective and void as was the judgment.

However, the cited case and instant case are distinguishable upon their facts. In Stringfield, the reviewing court expressly found that the copy of the information filed with and sworn to before the Clerk of the court had been materially altered in two ways sometime between the arrest and the post-trial motion. Some unknown person or persons had added the words “of alcohol” to the preceding words, “driving under the influence,” and later, after the post-trial motion, some unknown person or persons had rubber stamped “driving a motor vehicle while under the influence of intoxicating liquor.” By these actions, the original of the information filed with the Clerk of the court was made to conform with the statute which the defendant was alleged to have violated. These material alterations had been done surreptitiously, without notice to the defendant or permission of the trial court. The State never asked leave of court to make such amendments although an information may be amended by leave of court before or during trial. In that case, we held that the handwritten words “of alcohol” and the rubber stamped words “driving a motor vehicle while under the influence of intoxicating liquor” had to be stricken from the face of the information filed with the Clerk of the court because they had not been added by leave of court and hence were not proper amendments. As a result, the defendant was charged with “driving under the influence” which failed to specify in the language of the statute if said influence was narcotic drugs or intoxicating liquor. Accordingly, the information was held to be fatally defective and the judgment of conviction was reversed.

In the instant case, there is no evidence that the copy of the complaint filed with and sworn to before the Clerk of the court was altered before or during the trial. It bears the handstamped notation “driving a motor vehicle while under the influence of intoxicating liquor.” Unlike the Stringfield case, there are no material alterations appearing upon the face of the complaint filed with the court by the State.

Also, unlike the Stringfield case, the complaint as originally filed with the Clerk of the Court properly charges the defendant with violating Ill Rev Stats (1965), c 95½, § 144. The trial court, in entering its finding, found the defendant guilty “in manner and form as charged in the complaint herein.” That complaint, filed with the Clerk of the court, was properly drawn in accordance with the statutory violation. The defendant himself understood the nature of the charge in that his witnesses attempted to show that the defendant was not intoxicated when he was stopped in his vehicle. The defendant thus knew that he was charged with driving under the influence of intoxicating liquor and not narcotic drugs.

The proper rule to be followed in this case is that found in People v. Handibode, 53 Ill App2d 296, 202 NE 2d 845 (1964), which also involved driving a motor vehicle while intoxicated. There the defendant was successful in contending in the trial court that his motion in arrest of judgment should be granted because of the defect in the copy of the complaint given him; namely, the complaint given him did not have section 47 UART on it. We reversed and remanded the case with directions to overrule the defendant’s motion in arrest of judgment; enter judgment upon the finding of guilty; and sentence the defendant. In so doing, we stated at page 298 of 53 Ill App2d, page 846 of 202 NE2d:

“In the instant case there was no claim that the original complaint did not charge a crime but only that the copy furnished defendant lacked the necessary language. However, the trial court sustained defendant’s motion in arrest of judgment and discharged him.
“In Collins v. People, 194 HI 506, it was urged that the copy of the indictment furnished defendant was defective and not a true copy. The court, at page 512, held: ‘. . . they have not pointed out what right he was deprived of, nor have they shown, or attempted to show, that he was in any manner injured or his defense in any degree impaired thereby.

The rule in the Handibode case must be followed in this case which involves a similar factual situation. Accordingly, the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.


text:
    Joan Kautz, Plaintiff-Appellee, v. Edmund Paul Kautz, Defendant-Appellant.
    Gen. No. 53,036.
    First District, Second Division.
    November 12, 1968.
    Jerome Berkson, of Chicago, for appellant; no brief or appearance filed in behalf of appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiffs-Appellees, v. Lendell D. Gersbacher, Defendant-Appellant.
    Gen. No. 68-9.
    Fifth District.
    November 13, 1968.

      Demetri Hassakis, of Mt. Vernon, for appellant; Frank H. Walker, State’s Attorney, of Mt. Vernon, for appellees.
   Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jose R. Zayas, Defendant-Appellant.
    Gen. No. 53,092.
    First District, Fourth Division.
    November 13, 1968.

      Jose R. Zayas, pro se, of Chicago, appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Jose R. Zayas, defendant, was convicted of driving a motor vehicle while under the influence of intoxicating liquor. The case was tried by the court without a jury, and defendant was fined $100 and costs. He here argues that the evidence heard in the trial court was not sufficient to convict him. At the trial he was represented by a lawyer of his own selection; in this court he appears pro se and files his own brief. The evidence heard in the trial court was in sharp conflict.

The defendant was accused of driving a car without headlights, making a right turn without a signal, and driving a motor vehicle while intoxicated. He pleaded not guilty and waived the jury.

Robert Mackey, a police officer in the City of Chicago, testified that at 1:10 a. m., on May 1, 1967, while driving south on Damen Avenue, he saw the defendant’s vehicle going north on Damen Avenue with no lights; that he made a U-turn and pursued the defendant who had turned into the alley between Potomac and Evergreen Streets and proceeded west at a slow rate of speed. The officer stated that his siren was on, as well as his spotlight, and he was also honking his horn. The defendant turned north on Hoyne, then right on Evergreen, and pulled up at 2727 Evergreen. The officer stopped behind the defendant, approached him, informed him of the traffic violations, and asked to see his driver’s license, which the defendant refused to produce. The officer noticed the odor of alcohol on the defendant and asked if he had been drinking. The defendant told him it was none of his business.

The officer then arrested the defendant and took him to the police station where he at first refused to answer questions and was combative; his eyes were bloodshot, his face was flushed and his attitude was excited. He was advised of his rights, then after a “breathalyzer” reading, he was given performance tests during which his turning and balance were unsure and he was hesitant in placing his finger to his nose and slow in picking up coins.

The officer testified that he had been on the police force for 12 years and had had opportunities to observe hundreds of people under the influence of intoxicating alcohol; that in his opinion the defendant was intoxicated and unable to operate a vehicle. On cross-examination, the officer testified that the defendant had told him at the police station that he was a diabetic.

Officer Barch testified that he had been a police officer for 12 years and an evidence technician for three years, having taken a course of training which qualified him for testing individuals for intoxication; that he had given the defendant the test, and that from a reading of the breathalyzer it was his opinion that the defendant was under the influence of intoxicating liquor.

Andres Jimenez, the first witness for the defendant, testified that on the evening in question he first saw the defendant with his wife and four children at the home of one Lopez; that during the time they were there he saw the defendant drink part of a glass of beer. He stated that he went in the car with defendant and his family to 5721 South Peoria Street at about 6:00 p. m. Jimenez’ father-in-law was also in the car and they took him to his home, then drove to defendant’s home at 2727 Evergreen, where they arrived about 10:00 p. m. The witness stated that he saw no police cars following them, nor did he hear any horns or sirens or see any light flashing. The passengers all went into the defendant’s house, and after about 15 minutes someone came in and told the defendant that the battery had been stolen from his car. After checking the car the defendant returned to the house and said he was going to report the theft to the police. He then went to the police station at about 10:15 p. m. The witness was asked if defendant had driven his car to the police station and he said he did not know.

The defendant took the stand and testified that on the evening in question he was at Lopez’ apartment where he drank a couple of beers; that they all left in his car, took Jimenez’ father-in-law home, then went to defendant’s home at 2727 Evergreen. He let the passengers out in the alley to enter the rear apartment, then drove to the front to park his car. He stated that he saw no police cars and heard no siren or horn when he parked the car at about 10:00 p. m., and went into his apartment. After he had been there about half an hour a neighbor, one Santiago, came to his door and told him that some “kids were fooling around” with his car. The defendant went down to the street and found there was no battery in his car; he then returned to the house and said he was going to the police station to report the stolen battery. He stated that he went to the Wood Street station, reported the incident, and returned to his home where he waited on the sidewalk for the police to come and investigate. When they did not arrive he decided to go to bed, and as he was leaving, a police officer called to him and began questioning him about his car and whether he had been drinking. The defendant did not explain that he had been to the police station to make a report, nor did he explain that the battery was stolen. He became angry at being questioned and was arrested and taken to the police station.

William Rodriguez testified on behalf of the defendant that he lived next door to him; that he was throwing a football when he saw boys take the battery from defendant’s car; that he saw the defendant come out later and look into the car and try to start it; that he saw the police come to the scene, and he left.

After hearing argument of counsel the court found the defendant guilty of the charge of driving while under the influence of intoxicating liquor, and imposed the minimum fine.

The evidence was definitely in conflict. It is for the trial court to determine both the credibility of the witnesses and the weight to be given their testimony. People v. DeGroot, — Ill App2d —, — NE2d —. The testimony of the arresting officers, together with the scientific evidence of the breathalyzer, was sufficient to convict. People v. Mundorf, 85 Ill App2d 244, 229 NE2d 313.

The defendant also objects to a remark of the State’s Attorney that he had told a “far fetched” story, and that “the only thing that I can understand is how it could be so diametrically opposed is that the defendant is completely perjuring himself and made up the whole story.” In a trial before the court we do not think such a statement could be construed as being so prejudicial as to require reversal. People v. Sinclair, 27 Ill2d 505, 190 NE2d 298. In this case the defendant was represented by a lawyer of his own choosing, and there is nothing appearing in the record which indicates that the lawyer did not properly perform his duty toward the defendant.

It seems strange that if the story of the defendant were true as to the car lacking a battery, he did not make that statement to the police at the time of his arrest. An examination of the car would have clearly revealed that either the defendant or the police officer was not telling the truth.

Defendant relies greatly on the testimony of Rodriguez, who testified that he saw the battery removed. However, he also testified that after defendant examined the car he went into his house, came outside, went in and came out again; that then the police arrived. This contradicts defendant’s statement about going to the police station after he discovered that the battery was missing.

The court, in its zealous effort to arrive at the truth, examined the police officer relative to the possibility that he was following a different Rambler. The officer stated: “From the time we entered the alley until the time we got in front of his house, we were never more than fifteen feet behind him.”

After a careful examination of the record, it seems to us that the trial court could reach no other conclusion than that the defendant was guilty as charged. The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Robinson, Defendant-Appellant.
    Gen. No. 52,223.
    First District, Fourth Division.
    November 13, 1968.
    Rehearing denied January 6, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George C. Rantis and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment in a bench trial in which defendant was found guilty of unlawful possession of a narcotic drug, 111 Rev Stats 1965, c 38, § 22-3. Defendant was sentenced to a term of not less than four nor more than eight years in the Illinois State Penitentiary.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt.

2. The indictment was insufficient to convict the defendant of the crime stated because a material element was not stated.

3. The waiver of a jury trial should not have been accepted by the court because it was obtained by coercion.

4. Evidence should have been suppressed because it was obtained by a police employee whose compensation was conditional upon an arrest being made upon probable cause from the information given by the employee.

Evidence

On defendant’s motion to suppress the evidence only the two arresting police officers were called as witnesses. They testified that at about 1:30 on the morning of April 16, 1966, they had a conversation with special employee James Carter at the police station. Carter informed the officers that he could make a purchase of heroin from a man known to him as “Preacher.” At that time Carter had no money and no narcotics on his person.

The police officers drove Carter to the vicinity of 64th Street and 1300 east, and parked in an alley. At this time they gave Carter ten $1 bills the numbers of which had been recorded. Carter then proceeded to and entered the building at 1356 East 64th Street. After about five minutes Carter returned and handed one of the officers one tinfoil containing a white powder which Carter stated that he had received from “Preacher” after giving the recorded money to Terry Saffold. The officers field tested the contents and found the substance to be a narcotic.

Both officers then proceeded to the apartment where Carter said he had purchased the narcotics, knocked at the door and were admitted by Terry Saffold who hollered, “Police.” The police officers immediately proceeded to the bathroom where Carter had said that Preacher was bagging heroin. As the officers approached the bathroom Officer Burt was able to see a checkerboard on top of the commode, and on top of the checkerboard he saw two tinfoil packets and some loose white powder. The defendant and a man named Carruthers were in the bathroom at this time. One of them hit the checkerboard and the powder fell into the bathtub which was full of water; the two tinfoil packets fell to the floor between the commode and the bathtub.

The officers entered the bathroom, effected the arrest and took possession of the packets. The officers did not find any money or narcotics on the defendant’s person. The officers did not at any time see defendant touch the narcotics. Carter did not at any time identify the two packets recovered from the bathroom floor as belonging to the defendant. The officers testified that neither by personal knowledge nor by identification did they know that the packets belonged to defendant. The officers testified that as far as they knew the narcotics could belong to Carruthers, or to Terry Saffold, or to an unidentified girl who was in the apartment when the officers entered. Officer Lawrence also testified that Carter identified defendant at the police station as the man known to him as “Preacher.” After the motion to suppress was denied, it was stipulated that the substance in the tinfoil packets found in the bathroom was heroin and that the evidence heard on the motion to suppress would stand as the evidence on the trial. However, the State was permitted to recall Officer Burt, one of the arresting officers, who testified that defendant was not wearing a shirt or shoes when the officers arrested him, and that he put both on before he was taken to the station. Neither the informer nor the defendant testified.

Opinion

It is incumbent upon the State to prove beyond a reasonable doubt that the defendant had either actual or constructive possession of the narcotics. People v. Bedford, 78 Ill App2d 308, 311, 223 NE2d 290; People v. Mack, 12 Ill2d 151, 145 NE2d 609. The State clearly has not shown actual possession; and mere knowledge of the location of narcotics is not the equivalent of possession but merely a necessary element of criminal possession. People v. Jackson, 23 Ill2d 360, 363-364, 178 NE 2d 320; People v. Bedford, 78 Ill App2d 308, 311, 223 NE2d 290.

It is well settled as stated in People v. Nettles, 23 Ill2d 306, 308-309, 178 NE2d 361, that “where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt. See People v. Embry, 20 Ill2d 331; People v. Mack, 12 Ill2d 151.” And this is true even though other persons might have access to the premises. People v. Mack, 12 Ill2d 151, 145 NE2d 609. The State, therefore, attempted to show in the instant case that defendant was in control of the premises by the officers’ testimony that defendant, who was dressed in a pair of pants and a pair of stockings at the time of his arrest, put on a shirt and a pair of shoes. From this evidence alone the State argues that defendant was in control of the premises. There were three persons other than the defendant in the apartment and one of them was in the bathroom with the defendant. No evidence was introduced showing who had rented the apartment (People v. Hayes, 81 Ill App2d 400, 226 NE 2d 517). There was no evidence that any wearing apparel of defendant was found in the apartment other than the shirt and shoes which he put on when arrested (People v. Galloway, 28 Ill2d 355, 192 NE2d 370). The police officers testified that the narcotics could have belonged to any one of the four occupants.

From these circumstances we can only conclude that the State did not prove beyond a reasonable doubt that defendant had possession of the narcotics or control of the premises on which they were found.

The judgment of the Circuit Court is reversed. In view of this finding we need not consider the other contentions of defendant.

Reversed.

McCORMICK, P. J. and ENGLISH, J., concur.


author: JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Lawrence (Impleaded), Defendant-Appellant.
    Gen. No. 51,612.
    First District, Third Division.
    November 14, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, James J. Doherty and Marshall J. Hartman, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SULLIVAN.

Not to be published in full.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willard McLaurin, Defendant-Appellant.
    Gen. No. 52,018.
    First District, Third Division.
    November 14, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Chester P. Majewski and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.