text:
    Ann Caprata and Patrick McCain, Plaintiffs-Appellees, v. W. J. Black, Individually and d/b/a Edlac Industrial Equipment, Defendant-Appellee, v. Dr. Charles R. von Solbrig, Lienor-Impleaded-Appellant.
    Gen. No. 53,690.
    First District, Fourth Division.
    July 22, 1970.

      William T. Halvorsen, of Chicago, for appellant.
    No brief for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Lienor appeals from an order of September 20, 1968, which denied his petition for a change of venue and adjudicated his physician’s lien in an amount substantially less than that claimed.

While there has been no appearance filed in this court on behalf of any appellee, we shall, nevertheless, consider the appeal on its merits. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill App2d 264, 254 NE2d 814.

Plaintiffs and defendant in the basic litigation for personal injuries, settled their dispute, and on August 8, 1968, an order was entered dismissing the cause but retaining jurisdiction “for the adjudication of any and all hospital and medical liens.” The same order provided that adjudication of liens was set for September 13, 1968. On that date, counsel for lienor requested a continuance because his client was engaged in emergency surgery. After colloquy between court and counsel, which was not preserved in this record, the case was reset for September 20.

On September 20, when the case was called, the attorney for lienor presented a duly noticed petition for change of venue. The petition, which appears to conform to statutory requirements (Ill Rev Stats 1967, c 146, §§ 1 to 7), alleges, by affidavit of lienor dated Monday, September 16, that the prejudice of the judge first came to affiant’s knowledge on Friday, September 13. The petition was denied, the judge stating, “Under the statute, your petition alleging prejudice on the 13th can’t wait until the 20th to be filed. ... It has got to be filed immediately.” Over the objection of lienor, the court then proceeded to adjudicate his liens, reducing his claims against the two plaintiffs from $530 to $252.50, and from $150 to $50, respectively.

On this record, the only question is whether the trial court was correct in its ruling that the petition was not timely, as a timely petition in proper form must be allowed as a matter of absolute right in either civil or criminal cases. People v. Wilson, 37 Ill2d 617, 619, 230 NE2d 194, and cases there cited; Miller v. Miller, 43 Ill App2d 214, 215, 193 NE2d 105.

It has been held repeatedly that the venue statute should be liberally construed “to promote rather than defeat the right to a change of venue.” Johnson v. United Motor Coach Co., 66 Ill App2d 295, 298, 214 NE2d 326, and cases there cited.

Section 6 of the act (Ill Rev Stats 1967, c 146, § 6) provides for ten days’ notice to the opposite party, but with an exception “where the causes have arisen or come to the knowledge of the applicant within less than ten days before the making of the application.” Liberally construed, this would indicate that an application might be timely even though the prejudice were alleged to have come to the applicant’s knowledge up to ten days prior to application for change.

In the instant case, the prejudice allegedly became known on Friday the 13th, the affidavit was executed on the following Monday, notice was given to counsel, and the petition was presented at the outset of the hearing on the following Friday. We consider this to have been timely, particularly since on the 13th the judge had merely continued the case and had made no ruling on any substantive issue. (See discussion in Board of Junior College District No. 508 v. Cook County College Teachers Union, 126 Ill App2d 418, 262 NE2d 125.) Nor could he have done so because, under the act providing for physicians’ liens, the court was without jurisdiction to adjudicate the liens except upon the filing of a petition for that purpose by the injured person or by the physician. Ill Rev Stats 1967, c 82, § 101.6. No such petition was ever filed in this case.

The order appealed from is reversed and the cause is remanded with direction to transfer the proceeding to another judge if lienor or plaintiffs elect, within a reasonable time, to file a petition for adjudication of the subject liens.

Reversed and remanded with directions.

STAMOS, P. J. and DRUCKER, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Steven Steele, Defendant-Appellee.
    Gen. No. 53,844.
    First District, Fourth Division.
    July 22, 1970.

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

delivered the opinion of the court.

This is an appeal by the State from an order of the Circuit Court granting defendant’s motion for a discharge under the statute which requires trial within 120 days of arrest. Ill Rev Stats 1967, c 38, § 103-5. In November 1966, defendant was arrested for the unlawful possession of narcotics and remained free on bail until July 27, 1967. On July 3, 1967, the Public Defender was appointed to represent the defendant. On July 28, 1967, an assistant public defender moved for a list of witnesses, which was filed by the State on August 10, 1967. On October 3, 1967, defense counsel filed a motion to quash the search warrant, and the cause was continued by agreement to October 27, 1967. The motion to quash was heard and denied on December 22, 1967, and the case continued until February 2,1968.

On February 2, 1968, the case was again continued by agreement to February 20, 1968, on information supplied by the court that the defendant was in thé hospital. On February 20, 1968, the court stated that the defendant was still in the hospital and the assistant public defender asked that the case be put over for three weeks. On motion of defendant, the case was continued to March 19, 1968. On March 19, 1968, the defendant was not in court and his counsel stated an investigator would be sent out. The case was continued on motion of defendant until April 23,1968.

On April 23, 1968, the defendant did not appear and the trial judge had his bailiff “check him out.” The bailiff told the judge that the defendant was still in the hospital. The assistant public defender stated that “our file reflects he [defendant] had been in the hospital the last couple of times.” The case was continued, with the consent of the assistant public defender, until June 4, 1968. On June 4, 1968, a deputy sheriff reported that the defendant was still in the hospital. The assistant public defender told the court that he had received no word from defendant and thought the defendant was in the hospital. The case was continued until July 19, 1968.

On July 19, 1968, it was learned for the first time that the defendant had been sent to the penitentiary on another offense. The case was continued by order of the court until August 1, 1968. On August 2, 1968, the defendant appeared in court and filed a petition for discharge. The State asked for time to answer and the case was continued until August 6, 1968, on order of court.

On August 6,1968, the defendant testified that he was in Cook County Hospital from February 2 to February 8, 1968, suffering from a heart attack. After his release from the hospital, he was held in custody at the Cook County Jail until May 2, 1968, when he was taken to the penitentiary. He further testified that on February 8, 1968, he wrote letters to the public defender, the prosecutor, and the court indicating that he was ready for trial. He never received any replies to these letters. He did not talk to a public defender from the time he returned to the Cook County Jail on February 8, 1968, until the time he was taken to the penitentiary on May 2, 1968. In none of his letters did he ever ask the court or his attorney to request a delay or continuance. After hearing argument, the trial court granted defendant’s motion for discharge.

On appeal, the State contends that the defendant was bound by the continuances requested in his absence by his counsel and, therefore, was not entitled to a discharge since he occasioned the delays. In People v. Woods, 27 Ill2d 393, 189 NE2d 293, the court held that the defendant was bound by his counsel’s consent and agreement to the advancement and continuance of his case, even though this request was made in the defendant’s absence. At page 396 the court stated:

In our judgment the ordinary, uncontested motion for a continuance, or to advance and then continue a case, does not involve rights of the accused of such a substantial nature as to invalidate any action thereon occurring in his absence. Even assuming a contrary conclusion, the right to be present at a hearing upon a motion for a continuance, or advancement and continuance, may be waived by defendant, or by his counsel on his behalf.

See also in accord State v. Holmes (Mo), 428 SW2d 571 (1968).

In the instant case, the record shows that on February 2, 1968, the case was continued by agreement; that on February 20, 1968, the assistant public defender asked that the case be put over for three weeks; that on March 19, 1968, the assistant public defender told the court that an investigator would be sent out; that on April 23, 1968, the assistant public defender stated that his file reflected that the defendant had been in the hospital and on motion of defendant the case was continued; and that on June 4, 1968, the assistant public defender told the court that he had received no word from the defendant, and on motion of defendant the case was again continued.

Defendant argues that since he did not agree to the continuances nor cause or contribute to the delay, the trial court properly discharged him. Defendant cites People v. Williams, 27 Ill2d 327, 189 NE2d 314; People v. Gray, 33 Ill2d 160, 210 NE2d 486; People v. House, 10 Ill2d 556, 141 NE2d 12; and People v. Wyatt, 24 Ill2d 151, 180 NE2d 478, in support of his argument. However, these cases are distinguishable from the instant case. In Williams, supra, and Gray, supra, neither defendant was personally present in court nor represented by counsel when a motion for continuance was allegedly made and granted in his behalf. Therefore, the court held that the 120-day discharge period was not tolled. In House, supra, and Wyatt, supra, the court held that it would be “a mockery” if a trial court was permitted to ascribe to a defendant, when appearing for arraignment and without counsel, a motion for continuance which he did not make and thereby toll the running of the 120-day discharge period.

In the instant case, however, the defendant was fully and adequately represented by an assistant public defender from July 3, 1967, until August 6, 1968. Furthermore, the motions for continuances which were requested by defendant’s counsel were made months after defendant’s arraignment.

We find that defendant was bound by the acts of his counsel and that the delays occasioned by him tolled the running of the 120-day limitation. Therefore, the court erred in granting defendant’s motion for discharge. The judgment is reversed and the cause is remanded with directions to deny defendant’s motion for discharge and to proceed with trial.

Reversed and remanded with directions.

ENGLISH and LEIGHTON, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    Marie-Louise Rosenthal, Plaintiff, v. The First National Bank of Chicago, etc., et al., Defendants. Morgan, Halligan, Lanoff & Cook, Petitioner-Appellee, Michael Reese Hospital and Medical Center, Respondent-Appellant.
    Gen. No. 53,895.
    First District, Fourth Division.
    July 22, 1970.

      George V. Bobrinskoy, Jr., and Burton E. Glazov, of Chicago (Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of counsel), for respondent-appellant.

      Samuel M. Lanoff and John A. Cook, of Chicago (Morgan, Halligan, Lanoff & Cook, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Respondent has appealed from an order of the trial court directing that $25,000 in attorneys’ fees be paid to petitioner by respondent out of its trust estate. That estate was the subject of prior litigation which resulted in a decision that the trust created by plaintiff’s father should be distributed to respondent. Rosenthal v. First Nat. Bank of Chicago, 88 Ill App2d 82, 232 NE2d 265, affirmed 40 Ill2d 266, 239 NE2d 826. Included in this court’s mandate reversing and remanding the prior action was a direction to the trial court to “allow such additional fees as are just and reasonable.” The trial court then, after hearing, allowed petitioner $25,000 additional “for services and costs incurred while acting for the appellees” in the earlier appeal.

Petitioner, a firm of attorneys, represented Phyllis and Diane Dreyfus as parties defendant in the will construction case before the trial court. When the trial court ruled adversely to its clients’ claim, they, along with four other parties, filed separate notices of appeal to this court. When this court decided the will construction case in favor of the instant respondent, a petition for leave to appeal in the Illinois Supreme Court was filed by the instant petitioner on behalf of its clients. The petition was allowed, but subsequently the Supreme Court affirmed the judgment of this court.

Petitioner’s request for additional fees upon remand was based upon a detailed petition filed in the trial court listing 890 hours of time expended in connection with the preparation and handling of the two appeals. Petitioner requested $35,000 as additional fees and costs, and the trial judge allowed $25,000 as fees and $4,193.47 as costs.

Respondent seeks reversal of the trial court’s decree, contending that this court’s mandate to allow “such additional fees as are just and reasonable” does not direct the trial court to award compensation to all attorneys in the case, as the language was construed by the trial judge, but was intended to direct the payment of only such fees as would be allowable under Illinois law. Respondent relies primarily upon Glaser v. Chicago Title & Trust Co., 401 Ill 387, 82 NE2d 446, to support this contention. There, the parties agreed, as they have in the instant case, that an ambiguity in a will justifies a suit for its construction, and that fees are properly allowable to such a suitor, win or lose, to cover his costs in the trial court. As to fees for appeals, however, the court in Glaser considered that quite a different matter. After citing with approval Sherman v. Leman, 137 Ill 94, 27 NE 57, and Dime Savings & Trust Co. v. Watson, 254 Ill 419, 98 NE 777, which disallowed appellate fees, the court concluded, at page 393:

When the will has been construed by a court having jurisdiction of the subject matter and the parties, its decree affords authority to all interested persons for the administration thereunder according to its terms unless it be modified or set aside by a court of superior jurisdiction. The construction placed upon a will by the lower court may not be satisfactory to some of the parties and they may be able to have it changed on appeal, but, should they feel disposed to litigate beyond the court of original jurisdiction, this they must do at their own risk and costs. The better authority is in accord with this view.

Thus, the sole issue presented on this appeal is the proper determination of petitioner’s status in the appeals to this court and to the Supreme Court from the will construction decree. Respondent contends that petitioner was an appellant at both levels of the appeal and is therefore precluded under the Glaser rule from receiving additional fees. This view of petitioner’s status is borne out in the record which demonstrates that petitioner filed the initial notice of appeal to this court, filed briefs on behalf of its clients, filed a petition for rehearing before this court, and also the petitions for leave to appeal and for rehearing before the Supreme Court. Each of these documents described petitioner’s clients as appellants, and sought reversal of both the trial court’s judgment and the judgment of this court. While those judgments were quite different from each other, petitioner did not seek to affirm any part of either. We think it is altogether clear that petitioner was representing appellants at both appellate stages of the proceeding and must be held to have pursued the litigation on appeal “at their own risks and costs.” Glaser, supra.

Petitioner’s arguments to the contrary were accepted by the trial court which allowed the fee for services rendered on behalf of the “appellees.” We cannot agree with this conclusion. Petitioner also urges that this court’s mandate to “allow such additional fees as are just and reasonable” required the trial court to allow fees in addition to those allowed at the trial level to all attorneys who participated in the appeals, and that the only determination remaining for the trial court was to set a reasonable fee. Contrariwise, we conclude that the words, “just and reasonable,” permitted the allowance of additional fees only in conformity with the established legal principles as set out in Glaser.

Petitioner also argues that their clients were “ostensible appellees,” since they were obliged to respond to the appeals taken by four other parties to the litigation. We cannot agree with this position either. An “appellee” is defined as “the party in a cause against Whom an appeal is taken; that is, the party who has an interest adverse to setting aside or reversing the judgment.” Black’s Law Dictionary, 4th Ed, 1951, p 126. In our view, petitioner’s only interest on appeal was to seek reversal of the trial court’s or this court’s judgment, and petitioner faced no compulsion to pursue its appeals merely because other parties filed separate appeals seeking reversal on other grounds, none of which would have benefited petitioner’s clients. This distinguishes the instant action from Dyslin v. Wolf, 347 Ill App 80, 106 NE2d 193, upon which petitioner relies, for in that case fees were allowed to attorneys for clients appearing more or less involuntarily in the Supreme Court as appellees intent upon sustaining the judgment of the lower court.

Upon remand to the trial court, evidence was adduced from one of petitioner’s partners indicating that petitioner had a contingent fee arrangement with its clients. Under that arrangement, petitioner was to receive a percent of any sums received from the trust in excess of a certain amount, in addition to any fees which might be awarded by the trial court on a quantum meruit basis.

The reasonableness of a contingent fee contract is always subject to close scrutiny and supervision by the courts. Pocius v. Halvorsen, 30 Ill2d 73, 83, 195 NE2d 137; Warner v. Basten, 118 Ill App2d 419, 255 NE2d 72. Our assessment of the instant arrangement leads us to the conclusion that allowance of an additional fee from the trust estate for the services rendered in this case by petitioner would be unreasonable if its contingent fee arrangement were construed to contemplate full payment on a quantum meruit basis in the event of loss of the suit.

Accordingly, the judgment of the Circuit Court is reversed.

Reversed.

STAMOS, P. J. and DRUCKER, J., concur.

       The trial court had previously allowed petitioner $10,000 as fees and $297.90 as expenses for their services in the trial court. That allowance was never in dispute.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tyrone Armstrong, Defendant-Appellant.
    Gen. No. 53,925.
    First District, Fourth Division.
    July 22, 1970.

      Richard J. Cochran, Tenney, Bentley, Howell, Askow & Lewis, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael J. Goldstein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This appeal is to review a judgment that convicted defendant of rape. He waived trial by jury. The court, after overruling oral post-trial motions, sentenced him to serve eight to twenty years. Although defendant argues five contentions for reversal, the disposition we make of this appeal requires discussion only of two: (1) the evidence did not prove him guilty beyond a reasonable doubt; and (2) the trial court committed prejudicial error in allowing a child to appear as a prosecution witness without prior judicial determination that the child was competent to testify. The first contention requires a reference to the facts.

On January 5, 1967, at about 11:00 or 11:30 p. m., the complaining witness, a mature woman, mother of three children then aged twelve, seven and two years, respectively, was at home in Chicago, with her husband and her children. Defendant, then seventeen years of age, with three other youths of about the same age, came to the home. According to the woman and her husband, defendant had a gun. Some shots were fired from a back porch. The youths “wanted to know how they could get rid of the gun.” A short time later the husband with one of the youths left the house and went to a nearby store. He was gone approximately fifteen minutes. When he returned, “[m]y wife was lying on the bed, her clothes tore, panties tore off her, hollering and screaming hysterically, and she was hollering ‘Oh, they raped me, they raped me, they raped me. Oh, they raped me’ (sic).” The police were called. The complaining witness was taken to a hospital. Defendant was arrested a short time thereafter.

At the trial, the complaining witness, her husband, the sevemyear-old daughter and two police officers were witnesses for the prosecution. Defendant and one of the three youths gave evidence for the defense. The complaining witness testified that after her husband left for the store, defendant and the other defense witness took turns raping her. One or the other held a gun to the head of the seven and a half-year-old daughter while they compelled the complaining witness to have intercourse. Her husband described the condition in which he found his wife when he returned home. The seven and a half-year-old daughter testified that while her father was away, defendant put a gun to her mother’s head and “[h]e got on top of my mother, . . . .” The two police officers testified to their interview with the complaining witness and defendant’s arrest. No medical testimony or evidence was offered.

Defendant and the other youth testified that they went to the complaining witness’ home to have sexual intercourse with her. Both claimed they had done this on several occasions prior to January 5, 1967. Both said it was the complaining witness who made suggestions by which her husband was induced to leave the home. The complaining witness, in rebuttal, denied she ever had sexual intercourse with the two youths. After hearing the evidence, the trial judge found defendant guilty of rape. Defendant contends that the evidence did not prove him guilty beyond a reasonable doubt.

Few contentions are as common in criminal appeals as the one defendant urges in this case. Because of this fact, we have had many occasions to say that in a bench trial, conflicts in the testimony of witnesses are to be resolved by the trial judge. People v. Pierre, 114 Ill App2d 283, 252 NE2d 706. We have also said that questions concerning credibility of witnesses is for the trial judge, who is in a better position to decide the weight to be given the testimony of a witness. For these reasons, we will not interfere with the trial court determinations on these points.

It is settled in our law that to sustain a conviction for rape, the testimony of the prosecutrix must either be clear and convincing in the light of all the evidence, or be corroborated by other facts and circumstances. People v. Jackson, 103 Ill App2d 209, 220, 243 NE2d 551. Whether the case made at trial met this test was for the trial judge to decide in the first instance. As a reviewing court we will not substitute our view of the evidence for that of the trial judge unless the proof is so unsatisfactory that we can say it raises a reasonable doubt. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Anthony, 117 Ill App2d 46, 254 NE2d 101; People v. Bailey, 112 Ill App2d 361, 251 NE2d 375. On the record before us, we cannot say the proof is so unsatisfactory that it raises a reasonable doubt of defendant’s guilt.

Defendant’s second contention arises from the appearance of the complainant’s daughter as a prosecution witness. She was questioned by the assistant who was prosecuting. No inquiry concerning her competency to testify was made by the trial judge. Questions asked her by the prosecuting attorney disclosed she was then eight years old and a student in the third grade. She said she knew the difference between the truth and a lie: “ [1] ittle girls who don’t tell the truth get punished.” At one point defense counsel requested that the child be asked when she attained the age of eight. One assistant state’s attorney replied, “You can do that on cross, Counsel.” The court added, “Let him conduct his own examination. I will let him proceed.” The child then gave testimony which tended to corroborate her mother.

Cross-examination disclosed that when the alleged crime was committed, the child was less than seven and a half years old. She did not know when the alleged offense occurred. She testified to some facts not mentioned by her mother. She said mother “told me when this happened.” Pressed further, the child said that the assistant state’s attorney “told me what to say. Not— he didn’t tell me what to say, he told me some of it . . . just told me some of it, . . . .” At the conclusion of the State’s case, defendant moved to strike the testimony of the child. The motion was denied. It is claimed this was error.

There is a presumption in this state that every person who is fourteen years old is competent to testify. Shannon v. Swanson, 208 Ill 52, 69 NE 869. When a child under the age of fourteen is called as a witness, it is the duty of the trial judge to determine whether the child is competent to testify. People v. Crews, 38 Ill2d 331, 231 NE2d 451. In the discharge of this duty the trial judge must conduct a preliminary inquiry into the competency of the offered witness by examining the child’s intelligence, understanding and moral sense. It is not age, but the degree of intelligence that a child displays which determines the question of its competency as a witness. People v. Davis, 10 Ill2d 430, 140 NE2d 675. “If testimony is to be permitted, the court’s inquiry must, with reason, satisfy the judge that the witness is sufficiently mature (1) to receive correct impressions by his senses, (2) to recollect these impressions, (3) to understand questions and narrate answers intelligently, and (4) to appreciate the moral duty to tell the truth (and comprehend the meaning of the oath).” People v. Sims, 113 Ill App2d 58, 61, 251 NE2d 795.

It is impossible to escape observing that the little girl was called as a witness to corroborate the testimony of her mother. Knowledge of human nature reminds us that a child of tender years is impressionable and will repeat what is said by adults. This record vividly demonstrates the rationale for requiring the trial judge to conduct an in-person examination of a child before it is allowed to testify. The examination was not conducted. Thus, questions concerning the competency of the child witness were not answered. Therefore, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John J. Keane, Defendant-Appellant.
    Gen. No. 53,966.
    First District, Fourth Division.
    July 22, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz 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 James W. Reilley, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was indicted for the offenses of deviate sexual assault (Ill Rev Stats 1967, c 38, § 11-3) and indecent liberties with a child (Ill Rev Stats 1967, c 38, § 11-4). A jury found defendant guilty of indecent liberties with a child and not guilty of deviate sexual assault. Judgment was entered and defendant was sentenced to a term of fifteen to twenty years. Defendant raises three points on appeal: (1) his pretrial motion to suppress identification testimony should have been sustained; (2) he was not proven guilty of the crime of indecent liberties beyond a reasonable doubt; and (3) prejudicial arguments of the prosecutor denied him a fair trial.

Testimony of James Van Vechten, called by the State:

He lives at 5501 South Cornell. He is a graduate student and research assistant in theoretical solid state physics at the James Frank Institute, University of Chicago. On November 14, 1966, at approximately 4:15 p. m., he went to take some trash out to the garbage cans located on the fire escape of his building. When he opened the door, he saw a man standing behind four window screens. In court, he pointed to defendant as this man.

On the date of the occurrence defendant had on a green, loose shirt, like a “Pendleton,” with a white shirt under it. Because of the screens he could not see below the middle ribs of defendant. He did not see the trousers. There was light coming through the glass Window from the fire escape door and there was a light bulb overhead which was on.

When he first saw the defendant, defendant had his back to the wall and was fumbling with something with his hands which were below the screens. When he approached, defendant exited out the fire escape door. He looked down behind the screens and saw complainant lying on a coat and some other clothing. She was completely naked. He asked her if she was all right and she opened her eyes and said, “Someone has been doing something to me.”

He called his wife and she took care of the girl and called the police. He ran out onto the fire escape but could not see the man. He saw a boy named Des Jardians and asked him which way the man had gone. The boy told him the man had gone north down the alley on 55th Street.

When he returned to the hallway he picked up the coat complainant had been lying on. Inside the flap pocket of the coat were some keys. He gave the coat and the keys to the two police officers who responded to his wife’s call. He then identified a coat shown to him by the prosecutor as being similar to the one that he had found. He also identified two keys as the ones he found in the right flap pocket of the coat.

The afternoon of December 8, 1966, two police officers came to his home and asked him to view some photographs. He picked out the photograph of defendant. During the evening hours of the same day he viewed a lineup. When the men in the lineup turned around, he recognized the defendant but he was not certain. “I didn’t want to say I was certain until I was. The man was standing quite erect, Mr. Keane. And the man I had observed was in a slouched position with his back against the wall and his hands down below the window screens. So, I couldn’t see what he was doing.” He viewed the lineup for a total of four minutes. He became absolutely positive in his identification of defendant as the assailant approximately two and one-half minutes after the lineup began.

In the hallway at the time of the offense he saw a three-quarter view of defendant’s face. He saw the right side of his face, not the left side. He did not notice a scar on defendant’s face, since it is located on the left side of his face.

On cross-examination, he testified that he was about eighteen feet away when he first saw defendant in the hall and as he approached him he was about eight feet from him. When he went to the police station for the lineup, he was told that they had a suspect.

Testimony of James DesJardians, called by the State:

He lives at 5512 Hyde Park Boulevard. He is eleven years old and is in the sixth grade at the Bret Harte School. He knows the difference between the truth and a lie. He had talked with an Assistant State’s Attorney before the trial. He was told to tell the truth.

On November 14, 1966, at approximately 4:15 p. m., he was in the alley behind 5501 South Cornell waiting for his mother to come home from the store. He saw a man run down the fire escape stairs out to the north of the alley. The man was wearing a green shirt, like a turtleneck, and dark pants. He thought he could point out this man in court. He indicated who this man was by placing his hand on defendant’s shoulder.

After he saw the man run down the alley another man (James Van Vechten) came up to him and asked if he had just seen a man run down the fire escape. He stated, “Yes, I just saw a man.” He did not pay much attention to the man as he ran by.

Testimony of complainant, called by the State:

She was bom in 1960 and is now seven years old. She attends a private school and is in the second grade. She lives at 5511 South Cornell in an apartment building with her mother and sister. She understands the difference between the truth and a lie.

On November 14, 1966, she was walking home from school when a man asked her if she would like to cross the street. She said yes. The man held her hand as they crossed the street. Once across the street the man took her inside a building and took off his coat and put it on the floor. He told her to take off her clothes which she did. The man asked her to suck his penis, and he put his penis in her vagina. The man then ran out the door. She understands the meaning of the words penis and vagina.

She remembered the police coming over to her house but she did not remember seeing any photographs. She was shown a black topcoat which she said looked similar to the one the man took off and put on the floor.

At trial she could not identify anyone in the courtroom as her assailant.

Testimony of Dr. Gerald Sigman, called by the State:

There was a stipulation as to his qualifications. On November 14, 1966, he examined the complainant’s genital area. There was an abrasion at the area of the fourchet (posterior area of the vagina between the vagina and the rectum). The hymenal ring appeared intact. No sperm was visualized.

Testimony of James McGreal, called by the State:

He has been a police officer for the City of Chicago for almost nine years. In his investigation he found that defendant resided at 7920 South Honoré and arrested him on December 8, 1966. The two keys found inside the coat recovered by James Van Vechten were taken by him to defendant’s residence. One key fit defendant’s vestibule door. He did not test the other key since somebody was home and he did not want to bother them.

Other Evidence

There was a stipulation that People’s Exhibit Number Three for Identification was a photostatic copy of the original record of a sales receipt for a John J. Keane of 7920 South Honoré; that the receipt showed that on November 4, 1966, defendant bought a topcoat at Rich-man Brothers located at 114 South State Street and that an examination of the coat would reveal that it was a black topcoat with a Richman Brothers label inside.

There was a further stipulation that the coat referred to in evidence was the same coat that was found on the floor by James Van Vechten and that the keys found inside the coat were the same ones referred to by the State’s witnesses.

The defendant did not testify at trial. However, his mother testified that she was familiar with her son’s wardrobe. He only had a few shirts. She never saw him wear a green shirt. With reference to the topcoat introduced into evidence he had “something that color, something like that.”

Opinion

Defendant contends that his motion to suppress identification testimony should have been granted. He argues that the lineup in which he participated was unnecessarily suggestive and prejudicial.

On motion to suppress, Officers McGreal and Mannion testified that after Mr. Van Vechten and the complainant looked through a series of photographs and identified the photograph of defendant as the assailant they found the defendant and placed him under arrest. Several hours after the photographic identification, Mr. Van Vechten, James DesJardians and his father, and the complainant and her mother were asked to come to the police station to view a lineup. The lineup, conducted by Officer McGreal, consisted of six male whites of various age groups. Each man was dressed in civilian clothes. The men stood approximately ten to fifteen feet away from the witnesses and each did a left face, right face, and about-face. Officer McGreal also testified that during the lineup defendant was wearing a blue waist-length jacket. He could not recall if any of the other men had on a jacket. The other participants in the lineup were a bit taller than defendant but they were all of slender build. Mr. Van Vechten and complainant identified defendant as the assailant. Des Jardians did not identify defendant.

Complainant’s mother testified that she was not sure if defendant was the shortest man in the lineup.

Mr. Van Vechten testified that prior to the lineup he did not see in the police station any of the individuals who appeared in the lineup. The shortest man in the lineup he was later told was a policeman. This man was “somewhat” shorter than the defendant. Each of the men was shabbily dressed. When the men were brought into the lineup they were about ten feet away. He immediately recognized one of the men as the assailant but he “wasn’t entirely certain. I didn’t want to say I was certain until I was.” When asked: “You say you weren’t entirely certain,” he answered: “At first.” He further stated that he saw complainant point out the defendant.

From the evidence adduced at the hearing on the motion to suppress, we believe the trial court properly denied defendant’s motion. While defendant may have been the only man wearing a blue jacket, this fact does not make the lineup so suggestive or prejudicial as to fatally taint the identification. People v. Woods, 114 Ill App2d 348, 252 NE2d 717, and People v. Wicks and Hayes, 115 Ill App2d 19, 252 NE2d 698. Furthermore, the lineup consisted of men of various ages and slender builds, and even though defendant may have been the shortest man in the lineup (Mr. Van Vechten testified that he was not) the small height differential discrepancy referred to by defendant was insignificant.

Defendant next contends that he was not proven guilty beyond a reasonable doubt. He argues that the identification testimony of the complainant and Van Vechten failed to establish that he was the assailant. At trial complainant, age six, was qualified to testify. On two separate occasions the prosecutor asked her to look around the courtroom and see if she could identify her assailant. She failed to identify defendant. However, Mr. Van Vechten testified that he identified defendant from a series of photographs, at a lineup and again in court. When he viewed the lineup he told two people that he was not certain in his identification. However, he then explained that his uncertainty was based upon the fact that in the lineup defendant was standing erect and when he first observed defendant during the commission of the crime, he was in a slouched position with his back against the wall. While he recognized defendant he did not want to say he was certain until he was positive. After two and one-half minutes he was absolutely positive in his identification.

Furthermore, when Mr. Van Vechten first saw the defendant in the hallway, he was as close as eight feet to him. There was light coming through the glass window from the fire escape door and there was a lighted bulb overhead. He saw a right three-quarter view of defendant’s face, but he did not notice a scar on defendant’s face since it was located on the left side of the face. Mr. Van Vechten was subjected to rigorous cross-examination, yet his identification of defendant remained positive at all times.

In People v. Fortson, 110 Ill App2d 206, 212, 249 NE2d 260, this court said:

The adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the jury, sitting as triers of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. Evans, 25 Ill2d 194, 184 NE2d 836 (1962).

See also People v. Tribbett, 41 Ill2d 267, 242 NE2d 249.

We also point out that there was strong corroborating evidence of defendant’s guilt. The black topcoat and keys found by Mr.. Van Vechten at the scene of the crime were introduced into evidence and both complainant and Van Vechten testified that the coat looked similar to the one the assailant had worn and left behind. Moreover, it was stipulated that defendant had recently purchased a black topcoat from Richman Brothers; that the coat in evidence was a black topcoat with a Richman Brothers label inside; and that one of the keys found inside the flap pocket of the coat fit defendant’s vestibule door.

It is within the province of a jury to determine the guilt or innocence of a defendant and its finding of guilty will be disturbed only where the evidence is so unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. People v. Hampton, 44 Ill 2d 41, 253 NE2d 385, and cases there cited. In the instant case the evidence demonstrates that defendant was proven guilty beyond a reasonable doubt.

Defendant also claims that the prosecution failed to prove beyond a reasonable doubt the material elements of the crime of indecent liberties with a child. The evidence showed that defendant was forty-one years old and that complainant was six years old at the time of the crime; that she was asked to suck defendant’s penis and that he put his penis in her vagina. Complainant’s testimony was corroborated by Dr. Sigman, who examined her genital area. From this evidence we believe that the elements of indecent liberties with a child were proven beyond a reasonable doubt.

Defendant also argues that the prejudicial closing argument of the prosecutor denied him a fair trial. Defendant claims that the prosecutor engaged in personalizing the evidence when he made several comments concerning the scar on the left side of defendant’s face. However, the prosecutor based these remarks upon Mr. Van Vechten’s testimony, and we find that these comments did not prejudice the defendant.

Defendant also refers to a remark of the prosecutor dealing with the certainty of identification needed for an indictment. The prosecutor was emphasizing the manner in which Mr. Van Vechten positively identified the defendant during the police station lineup and this remark was not substantially prejudicial to the defendant.

Defendant further argues that it was prejudicial for the prosecutor to threaten and intimidate the jury prior to their deliberation. The trial court ruled that the prosecutor was not threatening the jury. We believe the prosecutor based his remarks on the evidence and find nothing improper in the challenged statements.

Several of the other remarks referred to by defendant were not objected to during the trial. Therefore, the alleged errors, if any, were waived. People v. Hampton, supra.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.

       Indecent Liberties wth a Child.) (a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child: ... (3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both. (Ill Rev Stats 1967, c 38, § 11-4.)


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald J. Van Riper, Jr., Defendant-Appellant.
    Gen. No. 69-182.
    Second District.
    July 23, 1970.
    Rehearing denied and supplemental opinion September 21, 1970.

      Richard D. Schiller, of Aurora, for appellant.
    William Ketcham, of Geneva, and W. Ben Morgan, of Elgin, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant was convicted by a jury under an indictment charging that he aided and abetted one George Haynes in the unlawful sale of marijuana. He appeals from the judgment entered upon the jury verdict and the sentence of ten years to ten years and one day in the penitentiary.

Error is charged in the refusal of defendant’s pretrial motion in limine, in various rulings on evidentiary matters during the trial, and in the refusal of bail pending appeal. It is also argued that the evidence does not show the defendant guilty beyond a reasonable doubt.

The evidence introduced by the prosecution was that defendant was present in Haynes’ apartment on December 17th, 1968, the date of the alleged offense, when inspectors for the Illinois Bureau of Narcotics came there with marked money to make a purchase of marijuana from Haynes; and that there were negotiations between the agents and Haynes in defendant’s presence, characterized as “haggling” over the price. The agents testified that Haynes stated he and the defendant would pick up the marijuana for the witnesses to see and that they then left in Van Riper’s car, returning a short time later with the drug. Defendant is alleged to have said that he would buy it if one of the agents did not, even if he had to go out and get the money, and that it was good material. Defendant smoked a marijuana cigarette in the agents’ presence in connection with this alleged conversation.

Defendant was not shown to be in possession of the marijuana and he was not seen by the agents to receive any of the money paid to Haynes in the purchase.

Van Riper testified that he was not present in the apartment on December 17th. This was corroborated by his sister and brother and two employees of a shopping center, where he claimed to be during the time in question.

The jury was justified in returning its verdict on the conflicting evidence. The credibility of the testimony of the State’s witnesses was chosen over that of the alibi witnesses. The agent who made the purchase testified that he relied upon the advice of defendant that the marijuana was of good quality and worth the price to be paid before he made the purchase. This testimony on its face might appear somewhat incredulous. However, the agent explained that his purpose was to protect his “cover” as a drug purchaser and that he would not otherwise have purchased on this occasion without defendant’s assurance. This explanation of the conversation was for the jury to evaluate, together with the evidence that defendant drove Haynes in defendant’s car when Haynes left and subsequently returned with the supply. On review it must be said that the State’s evidence was sufficient beyond a reasonable doubt to support the finding of guilt of aiding and abetting an unlawful sale of marijuana.

Defendant has placed his major emphasis on claims of trial error which he argues deprived him of a fair trial.

He first suggests that the court erred in refusing to grant his motion in limine made prior to trial. In the motion defendant sought to exclude evidence tending to show defendant used or possessed narcotic drugs. He also sought to exclude evidence bearing on his manner of appearance or dress at the time in question. While notifying the State of his alibi defense, he sought to make a distinction between the issue of defendant’s whereabouts at the time of the crime and the question of the identification of the defendant. He offered to concede that the agent’s testimony would identify defendant as the person referred to as being present in the apartment who purportedly aided in the sale by Haynes, but maintained that he was not there. The motion further sought to exclude evidence of actions by defendant on occasions prior to December 17th.

The court denied the motion in its entirety. In so doing, we believe that the court acted within its discretion in deciding that it would rule on the matters raised as they came up in the trial. Defendant cites the civil case of Bruske v. Arnold, 100 Ill App2d 428, 432, 241 NE2d 191 (1968), together with textbook authorities approving such pretrial motions in criminal cases. (Stanton Illinois Criminal Law and Practice, Volume 1 at pages 402 and 438; ILP, Criminal Law, §§ 265 and 267.) While we do not preclude circumstances under which such motions may be properly granted, or improperly denied, in a criminal case, the ruling on the very broad request here was well within the court’s discretion.

We next consider the court’s trial rulings upon the evidence sought to be excluded in the motion. The evidence questioned included the testimony by a State’s witness that the defendant had smoked a marijuana cigarette in his presence to aid in the sale by Haynes and the testimony of the witness that defendant had been present but not participating on two or three previous occasions in Haynes’ apartment when narcotics were sold.

The State argues that the smoking of the marijuana cigarette by defendant was admissible as part of the res gestae of the crime. We do not accept this term or concept as applicable to the situation here, but we do agree that the evidence was properly admitted.

There was considerable discussion relating to the quality of the marijuana and its worth, preceding the consummation of the sale. The testimony that defendant smoked a cigarette made from the material, boosted its quality and offered to purchase it himself, establish circumstances which properly went to the trier of the facts to determine whether defendant did aid and abet the sale. This evidence was independently relevant to prove the circumstances of the crime charged and it was unnecessary to limit the scope of the testimony to proof of a mental state by an instruction to the jury, as defendant argues. Although the act of defendant in smoking a marijuana cigarette was evidence of the crime of possession of narcotics — a crime with which he was not charged — it was so blended or connected with the charge on trial that proof of the one incidentally involved the other. See, for example, United States v. Hoskins, 406 F2d 72, 75 (1969); The People v. Hall, 38 Ill2d 308, 315, 231 NE2d 416 (1967).

The evidence that defendant was in Haynes* apartment on previous occasions when narcotics were sold, stands upon a different footing. This evidence was ostensibly offered to prove defendant’s knowledge of illicit sales in the Haynes’ apartment, tending to refute the defendant’s theory that he was, at best, an innocent bystander (if the jury disregarded his alibi evidence that he was not present at the sale on December 17th). It was not, in fact, proof of any crime committed by defendant on an unrelated occasion. The evidence of the earlier presence when narcotics were sold in and about Haynes’ apartment was properly admissible to negative the possibility of innocent or inadvertent conduct by the defendant on the date of the offense charged. The People v. Aldridge, 19 Ill2d 176, 180, 166 NE2d 563 (1960). The jury was specifically instructed that defendant was not accused of violating the drug act on any occasion other than the one in question, and that such evidence was admitted for the limited purpose of attempting to show the knowledge or intent of the defendant on the occasion in question and for no other purpose. Both the prosecutor and the defense counsel expressed these limits to the jury in closing argument. While it would have been better practice for the court to have instructed the jury as to the limited scope of this evidence coincidentally with its introduction, the failure to do so was not reversible error under the circumstances.

Defendant had also complained of the admission of a photograph of defendant as he appeared at the time of arrest, with police identification removed, and which depicted him as having what has been characterized as a “hippie-type” hairdo. The photograph had probative value and was properly admitted in connection with the testimony of the State’s witnesses identifying the defendant in Haynes’ apartment at the time in question, in view of the alibi which placed defendant’s identification in issue, and considering the additional fact that defendant appeared clean-shaven at the trial. The People v. Maffioli, 406 Ill 315, 322, 94 NE2d 191 (1950).

The remaining argument of defendant that the trial court erred in refusing to admit him to bail pending appeal, presents no ground for reversing in this proceeding. Supreme Court Rule 609 provided the defendant’s sole remedy.

We acknowledge the concern expressed by defendant’s counsel, that for the acts proven, defendant has received a severe penalty of the ten year minimum sentence. This court cannot, however, override the legislative judgment expressed in the applicable statute. See The People v. Gonzales, 25 Ill2d 235, 240, 184 NE2d 833 (1962).

We, therefore, affirm the judgment below.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.

SUPPLEMENT TO OPINION UPON DENIAL OF PETITION FOR HEARING

Substitute counsel has filed a Petition for Rehearing alleging additional grounds for reversal not previously raised or argued. He now urges that there was insufficient evidence to prove that the substance in question was marijuana in accordance with the statutory definition; that the trial court erred in not submitting an instruction defining marijuana in accordance with the statutory requirements; and that the statute classifying marijuana as a narcotic is arbitrary and infects the severe penalty for sale of marijuana with unconstitutionality.

Charles R Turcotte, the crime laboratory analyst for the Bureau of Criminal Investigation in Joliet, testified for the State. The purpose of his testimony was to determine “whether or not there was any material known as Cannabis or Marijuana in the plant material.” He first made a microscopic examination, looking for hairs “referred to in the trade as bear claws” on the leaf material. He also performed a Duquenois chemical test from extracted resins. His opinion was that both plastic bags contained “Cannabis Sativa, or Marijuana.” He was then asked to “break down” the product, and answered, “It consists of seed material, leaf material, and some stalk material.” He was then asked whether he was able to ascertain whether the seeds were capable of germination and answered, “I did not.” There was no cross-examination.

In our opinion, the testimony was sufficient to prove that the substance contained a narcotic drug in the form of the leaf material within the statute and not falling within the statutory exceptions.

Defendant’s reliance upon The People v. Lott, 24 Ill2d 188, 181 NE2d 112 (1962) is misplaced. In Lott, the testimony on cross-examination was that the substance was composed of “mature” portions of the Cannabis plant and no reference is made to the presence of resin in the particular cigarettes he examined. The defendant thereby brought himself within the statutory exceptions.

We also consider the question raised as to the instructions, although not previously abstracted or argued. The record discloses no instruction defining marijuana. The following instruction (as well as one relating to aiding and abetting in similar terms) was given without objection.

“A person commits the crime of violating the narcotic drug act who sells marijuana.”

Defendant argues that possession of marijuana is not a criminal offense unless it is of the specific quality and kind defined by the statute, citing The People v. Sowrd, 370 Ill 140, 143, 18 NE2d 176 (1938). The Sowrd case does not apply to this prosecution brought under a different statute. Under the present statute all Cannabis is subject to the act, excluding the specific exceptions. The proof was clearly sufficient to sustain the guilty finding and defendant did not bring himself within the exceptions set forth in the statute. See Ill Rev Stats 1967, c 38, § 22-44; The People v. Yeargain, 3 Ill2d 25, 28, 119 NE2d 752 (1954); and People v. Washington, 81 Ill App2d 90, 102, 225 NE2d 472 (1966).

People v. Lewis, 112 Ill App2d 1, 250 NE2d 812 (1969) is relied upon by defendant for the proposition that the failure to give a specific instruction defining Marijuana or Cannabis, on the court’s own motion, was reversible error. Since no issue was properly raised disputing the nature of the drugs involved, we are of the opinion that no further instruction was required. In any event, in view of the clear and convincing evidence of defendant’s guilt, and the absence of any evidence tending to bring the defendant within the statutory exceptions, reversal is not justified. The People v. Truelook, 35 Ill2d 189, 192, 220 NE2d 187 (1966); and People v. Ciconte, 102 Ill App2d 1, 14, 243 NE2d 407 (1968).

The argument that classification of marijuana as a narcotic drug with the severe penalty attached to its sale makes for unconstitutionality is not open for our consideration. We again refer to The People v. Gonzales, 25 Ill2d 235, 240, 184 NE2d 833, supra.

Counsel has also raised a question in the Petition for Rehearing, which had been previously raised and argued. This relates to the testimony of defendant’s presence in Haynes’ apartment on other occasions when narcotics were allegedly sold by Haynes. The quotation of a pertinent portion of our opinion in the Petition for Rehearing is erroneous. Our opinion does not refer to this evidence as tending to prove defendant’s guilt of the crime charged against him by proof of defendant's commission of other crimes. We held that this proof was admissible as tending to show defendant’s knowledge of the commission of illicit sales by Haynes on previous occasions when no criminal activity of defendant was suggested, to meet defendant’s theory that he was an innocent bystander at the time of this crime charged against him. We adhere to our opinion on this point.

The Petition for Rehearing is therefore denied and we hold to our opinion as filed.

ABRAHMASON and MORAN, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Felder and Anthony Thomas, Defendants-Appellants.
    Gen. Nos. 52,496, 52,497, 52,688.
    First District, Second Division.
    July 28, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendants were found guilty by a jury of the crime of armed robbery, and each was sentenced to a term of fifteen years to thirty years in the penitentiary. They appeal, contending, inter alia, that the trial court committed error in failing to hold a hearing to determine whether they were competent to stand trial.

It appears that at their arraignment in March 1966, both defendants were questioned as to whether they were represented by counsel. Both men replied that their counsel was “El-elohe, the Lord God of Israel” and “The Lord God of Israel.” James Felder also denied that he was “James Felder,” and stated that he was “Simeon Ben Israel.” The Public Defender was, thereupon, appointed for both defendants.

Pursuant to motions filed by defendants’ counsel, the trial court ordered that both men be subjected to an examination by Dr. Haines of the Behavior Clinic of the Criminal Division to determine the sanity of each defendant and his competence to stand trial. The Behavior Clinic reports which were returned were substantially the same as reports returned several months earlier in connection with another armed robbery charge pending against these defendants.

The report on Thomas recited that he gave his name as “Aza Riah” and that he stated that “Anthony Thomas” was dead. He further stated that he came from the East “430 years ago,” and that the Lord scattered people over the earth because of sins and transgressions. The report concluded that Thomas was of the Muslim Religion, that he understood the nature of the charge against him, and that he was able to cooperate with his counsel.

The report on Felder recited that he recognized the. examiner as the person who spoke with him on a prior occasion, and who had also testified at an earlier trial. Felder also spoke somewhat incoherently concerning God, evil, salvation, and the like. The report concluded that Felder was of the Muslim Religion, that he understood the nature of the charge against him, and that he was able to cooperate with his counsel.

Both reports were submitted to the trial court prior to the trial on October 4, 1966. Defense counsel stated to the court after the reports were submitted that he had a conference with the defendants and that he had no evidence to offer in contradiction of the reports. The court thereupon called the case for trial.

Neither defendant took the stand at the trial. After the jury returned their verdicts, and prior to the sentencing, defense counsel made the following statement to the court:

“Furthermore, with regard to these defendants, I think Your Honor is well aware of the reasons why these men will not come to their defense. They are Israelites and their very religion keeps them from helping themselves. . . .
“These gentlemen are not being obstinate, to cause the Court difficulty, they firmly believe that according to their way of thought that this Court is without jurisdiction to judge them. . . .”

Defendants had been found guilty on a separate armed robbery charge in May 1966. They were arraigned on that charge at the same time they were arraigned on the charge in the instant case. Likewise, as here, the trial court had ordered a Behavior Clinic report on each defendant prior to that earlier trial, which are referred to above.

Defendants appealed their convictions in the earlier matter. This Court reversed Felder’s conviction on the ground that a hearing should have been held to determine whether he was competent to stand trial, but affirmed the Thomas conviction. (See People v. Felder and Thomas, 101 Ill App2d 333, 243 NE2d 350.) Thomas’ Petition for Leave To Appeal was thereafter allowed by the Illinois Supreme Court, and his conviction was reversed and the cause remanded for a new trial on the ground that he too should have been afforded a competency hearing. (See People v. Thomas, 43 Ill2d 328, 253 NE2d 431.)

In the Thomas case the Supreme Court stated, at page 332:

“Defendant’s counsel faced a formidable dilemma. His relationship with Thomas was not a voluntary one and the impetus that prompts cooperation with retained counsel was lacking. The consequence of a lack of cooperation, as this case illustrates, is to deny counsel access to defendant’s knowledge of the factual basis of the charges against him, or to information that might refute those charges. On the other hand, the quality of counsel’s representation is open to scrutiny in subsequent proceedings. To require counsel to attempt a defense without the defendant’s cooperation thus imposes a substantial burden. Such a requirement should be imposed only when the defendant’s unresponsiveness is not the result of a lack of mental capacity. Before a court allows a defendant to choose not to participate in his defense, the record must show that the choice was knowingly made by one who had the ability to cooperate and was able to understand the consequences of failing to do so.”

The Court also stated in the Thomas case, at page 333, that the Behavior Clinic report should not be viewed as conclusive in presence of the continuing manifestations of abnormal behavior and that the trial court should have undertaken to investigate the defendant’s capacity in more detail, in order to substantiate that his choice not to cooperate was knowingly made.

This matter was tried in October 1966; the matter involved in the cases which were appealed was tried in May 1966. The earlier Behavior Clinic reports were returned in April 1966, and the reports returned pursuant to order of the court in the instant matter were returned in August and September 1966, the contents of which were substantially the same as that contained in the earlier reports. Finally, after the jury had returned their verdicts, defense counsel brought to the trial court’s attention the reason why the defendants refused to cooperate in their defense. We are of the opinion that the trial court should have held a hearing to determine if the defendants choices not to assist in their defense was understandingly and knowingly made.

This matter was tried three and one-half years ago, and it is doubtful that evidence as to the defendants’ competency can be reconstructed if the matter were remanded for a hearing on competency alone. Consequently, the judgments of conviction must be reversed and the causes remanded for a new trial, at which the defendants may be afforded the opportunity to raise the question of their competence to stand trial. (See People v. Thomas, 43 Ill2d 328, 333, 253 NE2d 431.) This resolution makes it unnecessary to consider the other points raised in defendants’ brief.

(Appeals from these judgments were originally filed under General Numbers 52,496 and 52,497, on defendants’ Petition Filed Within a Year. In September 1967, defendants were allowed to file a Late Notice of Appeal as to both judgments, and the record thereupon came up from the circuit court and was filed under General Number 52,688. General Numbers 52,496 and 52,497 are, therefore, disposed of herewith.)

For these reasons the judgments are reversed and the causes remanded for new trials.

Judgments reversed and causes remanded with directions.

McCORMICK, P. J. and LYONS, J., concur.


author: MR. JUSTICE LYONS

text:
    David Muniz, Plaintiff-Appellee, v. James E. Wamsley, Defendant-Appellant.
    Gen. No. 53,165.
    First District, Second Division.
    July 28, 1970.

      John W. Butcher, of Chicago, for appellant.
    Baraz & Sotos, of Chicago (Marshall J. Baraz, Dom J. Rizzi, and Frank M. Greenfield, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook County denying defendant’s petition, made under section 72 of the Civil Practice Act (Ill Rev Stats (1965), c 110, § 72), to vacate a default judgment which had been entered against him. The defendant contends that the trial court abused its discretion in denying the relief sought.

The record before us indicates the following. The original action was commenced in June of 1964, by the filing of a complaint for personal injuries and property damage and praying judgment for damages in the amount of $5,000. The sheriff’s return indicates that service was had upon the defendant by leaving a copy of the summons and complaint with Mrs. Wamsley (defendant’s mother), at the defendant’s usual place of abode and mailing additional copies to the defendant at his usual place of abode. In August of 1964, an appearance and answer were filed on behalf of the defendant. Neither of these documents bear the signature of the attorney by whom they purport to have been prepared, although a name is typed in the space provided for identification of counsel. In November of 1966, a default judgment was entered against the defendant in the amount of $1,250.

In his section 72 petition and supporting affidavit the defendant averred that he did not have notice of the cause, specifically, service of process, appearance, answer, or judgment, until August of 1967. In attacking the sheriff’s return of service, the defendant averred that at the time service was attempted he was not a resident of the State but had become a resident of the State of Arizona, and therefore, the place where such service was attempted was not his usual place of abode. In this same connection there was filed an affidavit made by the mother of the defendant, in which she affirmed that when a summons directed to her son, the defendant, was delivered to her home in July of 1964, she informed the officer that her son no longer lived there. She also averred that her son, the defendant, left Illinois to become a resident of the State of Arizona in December of 1963, that he became a resident of that State, and did not return to Illinois until November of 1964. Finally, defendant’s petition and affidavit in support thereof set forth that the attorney who purported to act for him was neither appointed by nor known to him.

Plaintiff did not file a responsive pleading below. Therefore, all facts well pleaded and supported by affidavit must, for purposes of this appeal, be taken as true and the legal sufficiency of the petition can be considered only to the extent of determining whether it is so fatally defective as to be incapable of supporting an order granting the relief sought, thus requiring the Circuit Court to deny relief. Smith v. Pappas, 112 Ill App2d 129, 251 NE2d 390 (1969), and the cases cited therein. Thus, unless the allegations of the petition are not sufficient to support an order for the relief prayed, we must hold that the Circuit Court abused its discretion in denying that relief.

Section 72 of the Civil Practice Act substitutes a single simple remedy for various forms of post-judgment relief previously available. Its purpose is to bring before the court rendering judgment matters of fact which, if known to the court at the time judgment was entered, would have prevented its rendition. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719 (1968). In Glenn v. People, 9 Ill2d 335 at 340, 137 NE2d 336 (1956) the court stated:

“. . . The error of fact which the writ may be employed to correct includes such matters as the death of one of the parties pending the suit and before judgment; infancy where the party was not properly represented by a guardian; coverture, where the common law disability still exists; insanity at the time of the trial; and a valid defense which existed in the facts of the case but which, without negligence on the part of the defendant, was not made, having been prevented through duress, fraud or by excusable mistake. . . .”

The petition, although filed in the original action, is not a continuation thereof, but is a new proceeding and as such is subject to the same rules of pleading as any other action. The petition must state adequate grounds for relief and the petitioner’s entitlement thereto. See Smith v. Pappas, 112 Ill App2d 129, 251 NE2d 390 (1969).

In the instant case, the facts which defendant sought to bring to the attention of the court were that he was not a resident of the State of Illinois at the time that service was attempted and thus, service was not had upon him at his usual place of abode as required by statute; that he was not served with process; that the appearance and answer filed on his behalf were outside his knowledge until he first learned of the case in August of 1967, after the default had been entered; and that he did not know or appoint the attorney who purported to act for him. The petition contains no allegations with respect to the existence of a meritorious defense. In addition, an allegation in the petition that plaintiff has perpetrated a fraud upon the defendant and the court is not supported by the affidavit.

We find the petition to be totally defective for failure to state adequate grounds for relief. As previously noted, the petition contains no allegation that a meritorious defense exists. Further, the allegations contained in the petition which suggest that a fraud was perpetrated upon defendant and the court stand unsupported by allegations of fact in either the petition or accompanying affidavit. Finally, the allegation that defendant was not served with process is not sufficient to support a finding that the judgment entered below was void for want of jurisdiction. The original action sounded in tort and thus jurisdiction over defendant’s person is established under section 17 (1) (b) of the Civil Practice Act.

We find no error in the Circuit Court’s denial of defendant’s petition. Accordingly, the judgment of that court is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold G. Stevens, Defendant-Appellant.
    Gen. No. 54,359.
    First District, Second Division.
    July 28, 1970.

      Richard H. Devine, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James C. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant, Harold G. Stevens, was found guilty of burglary, after waiving a jury trial, and was sentenced on July 23, 1968, to a term of not less than four years or more than eight years in the Illinois State Penitentiary. On June 23, 1969, the defendant filed a motion to vacate the judgment under chapter 110, section 72, of the Ill Rev Stats, alleging that there is no allegation in the indictment that he entered a structure as defined by Ill Rev Stats (1967), c 38, § 19-1. The petition was denied on July 8, 1969. The instant appeal is from the order denying the motion to vacate.

At the trial no witnesses were personally presented, as the evidence was stipulated to by counsel for the defendant and for the prosecution. The evidence stipulated to was that Ray-Car Motors was a corporation selling automobiles in Harvey, Illinois. On February 23, 1968 at 9:00 p. m., the president, Raymond Carpenter, securely locked the premises for the night. On the following morning he was contacted by the local police and returned to the automobile agency to find that the rear window of the building had been broken; he observed an acetylene cutting torch, which had not been there when he left and the coke and cigarette machines that had been in good condition when he left, had been broken into.

It was further stipulated that if Richard Cazarniecki of the Harvey Police Department testified, he would state that at 3:40 a. m. on the morning of February 24th, he was on routine patrol, observed the premises of Ray-Car Motors, looked into the property through a window, observed that a coke and cigarette machine had been broken into and further checking the building, observed the defendant, whom he now identified in court, as being in the place of business and observed defendant using a cutting torch on a safe on the premises of Ray-Car Motors. He placed defendant in custody. After stipulating that defendant was twenty-six years of age, the defense rested. Both sides waived argument and the court entered a finding of guilty. Motions for a new trial and in arrest of judgment were denied and a hearing in aggravation and mitigation was held. The court sentenced the defendant to a term of not less than four years and not more than eight years in the Rlinois State Penitentiary. Thereafter, the court advised the defendant of his right to appeal within thirty days and that if he did not have funds the court would appoint a lawyer and free transcript of the evidence.

The sole question raised by the appeal from the denial of the petition under section 72 of the Civil Practice Act is the sufficiency of the indictment to charge the offense of burglary. The appropriate section of the Rlinois Criminal Code, Ill Rev Stats, c 38, § 19-1 provides:

“(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Elinois Motor Vehicle Law, approved July 11, 1957, as amended, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of the Illinois Motor Vehicle Law,’ as heretofore or hereafter amended.”

The contention of the defendant here is that the indictment in the instant case did not charge him with entering a building with the intent of committing a theft. The indictment charged that Harold Stevens committed the offense of burglary, in that he entered into the car lot of Ray-Car Motors, Inc. with the intent to commit therein a theft in violation of section 19-1 of the Criminal Code. Defendant takes the position on this appeal that the indictment, considered alone, does not charge him with burglary, since it charges him with entering a car lot, which is not a building under the statute.

The provisions of section 72 of the Civil Practice Act cannot be invoked to circumvent an appeal under other sections of the Civil Practice Act. In this case the judgment was entered on July 23, 1968. The motion to vacate under section 72 was presented on June 23, 1969, eleven months thereafter. The motion to vacate under section 72, was denied on July 8, 1969. The defendant should have appealed within thirty days of entry of the judgment of July 23, 1968 and under the proper circumstances could have obtained an extension of six months in which to perfect his appeal. From the record before us, he did not do so.

Section 72 reaches errors of fact that are unknown to the court. In the instant case the claim is that there was an error of law. The error of fact reviewable under section 72 must be some error unknown to the court when the judgment was entered. The claimed error in the case at bar was known to the court because it is alleged to be in the indictment itself. See Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294 (1960); Tinkoff v. Wharton, 344 Ill App 40, 99 NE2d 915 (1951).

Petitions under section 72, while available in criminal as well as civil cases, have the limited function of bringing to the attention of the court errors of fact of such character as would have prevented rendition of the judgment. People v. Bishop, 1 Ill2d 60, 114 NE2d 566, certiorari denied 346 US 916 (1953); Wagner v. Sulka, 336 Ill App 101, 82 NE2d 922 (1948). Section 72 applies only to errors of fact and not errors of law committed by the trial court. Department of Revenue v. Joch, 410 Ill 308, 102 NE2d 155 (1951).

A petition under section 72, substituted for a writ of error coram nobis, is not available to review questions of fact arising on pleadings or to correct errors of the court on questions of law. Linehan v. Travelers Ins. Co., 370 Ill 157, 18 NE2d 178 (1938); People v. Bruno, 346 Ill 449, 179 NE 129 (1931); Kaszab, Inc. v. Gibson, 327 Ill App 223, 63 NE2d 629 (1945).

We conclude that the petition under section 72 was properly denied by the trial court and that the judgment should be affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.