author: MR. JUSTICE BURKE

text:
    Atwood Vacuum Machine Company, an Illinois Corporation, Plaintiff-Appellant, v. Continental Casualty Company of Chicago, Defendant-Appellee, and The Guild Hall of London, Muchener Ruckv, of Munich, Reinsurance Corporation, of London, Store Brand, of Oslo, Atlas Reinsurance, of Stockholm, Globo Reinsurance, of Toronto, British National, of London, British & Overseas, of London, The Great Lakes, of Toronto, Northern Assurances Co. of London, and the Victory Insurance Co. of London, Defendants.
    Gen. No. 52,215.
    First District, Second Division.
    March 18, 1969.

      William T. Kirby and Michael B. Roche, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (William H. Hillier, Alex R. Seith, and R. R. McMahan, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Atwood Vacuum Machine Company brought this action as assignee of nine bills of exchange, after the bills had been presented for payment upon maturity and dishonored, against the twelve named insurance companies which had allegedly joined with an insurance company of Venezuela, Compañía Anónima de Seguros República (República), for the purpose of guaranteeing payment of bills of exchange drawn in Venezuela, among which were the bills at bar. It appears that of the twelve insurance companies named in the original and amended complaints only defendant-appellee, Continental Casualty Company (Continental), was served with summons. República was not joined as a defendant.

The original and the first two amended complaints were stricken on motion of Continental and plaintiff was given leave to file a third amended complaint, which was thereafter filed. The trial court deferred acti<?n on Continental’s motion to strike the third amended complaint pending tender of a fourth amended complaint and a consideration thereof by the court. Leave to file the tendered fourth amended complaint was denied on the ground that none of the four counts therein stated a good cause of action. The court further ordered that plaintiff not be allowed to plead over or amend the third amended complaint, that Continental’s motion to strike the third amended complaint, which was still pending, be allowed, and that the litigation with respect to Continental be terminated as a whole with prejudice to plaintiff and costs to this defendant. Judgment was entered for Continental, and plaintiff prosecutes this appeal.

Count I of the tendered fourth amended complaint alleged generally that between the years 1952 and 1959, business institutions in Venezuela were experiencing difficulties in securing working capital due to a rapidly expanding economy. The count alleged that there developed a procedure and common usage in Venezuela whereby capital was secured by Venezuelan businessmen through the cooperation of small Venezuelan insurance companies and large foreign insurance companies. The procedure and usage was alleged to have been as follows:

An individual Venezuelan businessman would draw a bill of exchange on a nominal drawee and, in order for the bill to acquire value and stability in the money market, its payment was guaranteed by a Venezuelan insurance company. The guaranty on the bill appeared as “bueno por aval” (“good for guarantee”), or an equivalent thereof, written on the bill or on an attached paper, followed by the name of the Venezuelan insurance company granting the aval and the signature of the appropriate officer of that company. However, since the guaranty of the Venezuelan insurance company was not of itself acceptable in the money markets, it was necessary that its aval be backed by well-known, financially reliable foreign insurance companies. It therefore became the practice that the foreign insurance companies would back the individual Venezuelan insurance company, the latter acting for and on behalf of the former in granting the avals.

Count I further alleged that the Venezuelan insurance company and the foreign insurance companies involved in any particular such association shared premiums and risks in accordance with previously agreed fixed percentages. It was the custom of the brokers and investors in the Venezuelan money markets to inquire of and receive the names of the insurance companies. Venezuelan and foreign alike, which were participating in the guaranty on a particular bill of exchange, as well as the respective percentage interests each participating insurance company had in the guaranty or aval.

The individual Venezuelan businessman would secure repayment of the bill of exchange by depositing securities or executed mortgages with the Venezuelan insurance company granting the aval. A brokerage firm was then engaged to sell the bill to an investor and the proceeds thereof went to the businessman as working capital. When the bill fell due, it would be repaid by the businessman out of funds paid to him by the Venezuelan government for completing his contract as previously agreed. Count I further alleged that all of the defendant companies herein were aware and knew of this custom and procedure, and also knew that those dealing in the Venezuelan money markets would follow this practice.

Count I further alleged that until late 1959, no losses were incurred by any of the insurance companies participating in such ventures in Venezuela. In March 1955 República, a small insurance company, was organized to engage in the guaranty operations detailed above. During June 1955, Sterling Offices of Toronto, Canada, organized a group of foreign insurance companies to participate with República, under various forms of business associations, in the business of guaranteeing bills of exchange in Venezuela.

In July 1958, Sterling notified República of a change in the makeup of the foreign participating insurance companies. República was informed that defendants herein were the new participating foreign insurance companies which would act in conjunction with República in guaranteeing bills of exchange, and that the premiums and losses would be shared as follows:

Continental Casualty Company 10%
The Guild Hall 10%
Munich Reinsurance, A. G. 10%
Reinsurance Corporation 10%
Store Brand 10%
República 10%
Atlas Reinsurance 7.5%
Globe Reinsurance 7.5%
British National 5%
British & Overseas 5%
The Great Lakes 5 %
Northern Assurance Co. 5%
The Victory Insurance Co. 5%

Count I further generally alleged that in 1957, Seth B. Atwood, plaintiff’s assignor, traveled to Caracas, Venezuela, and investigated the financing operations detailed above. Atwood and two of his associates conferred with officers of a number of Venezuelan insurance companies, as well as with the manager of a New York bank operating in Caracas. It was alleged that all of those consulted described the Venezuelan financing operations as detailed above.

The count further alleged that on October 27, 1957, Seth B. Atwood began to purchase bills of exchange, as guaranteed in the manner set out above. It was alleged that prior to each purchase, Atwood inquired as to the identity of the Venezuelan insurance company granting the aval, and also secured representations as to the participating foreign insurance companies. In the case of the bills of exchange at bar, plaintiff’s assignor was advised by República that the defendants were the participating foreign insurance companies. Between October 27,1957, and August 12, 1959, Atwood purchased approximately $2,900,000 worth of bills of exchange, all of which were honored in full at maturity. The bills of exchange at bar, dated August 11, 1958, and thereafter, one of which fell due in October 1959 and the balance of which fell due in August 1960, bore the avals of República. The bill which fell due in October 1959 was not honored by the drawer and the acceptor, and the defendants were so notified.

Count I then charged defendants with negligence and specifically alleged that shortly prior to April 15, 1959, Pedro Torres, the president of República, and other República employees acting with Torres, filed with and collected a false claim against the defendant insurance companies, said false claim having been based upon a bill of exchange which was never in fact guaranteed by República. It was alleged that the fact of the fraud was announced in the Caracas newspapers on April 15, 1959. It was also alleged that in June 1959 defendant learned that República had ceased honoring its avals. The bill of exchange involved herein, which fell due in October 1959, was thereafter dishonored by the drawer and the acceptor, and by República. It was alleged that in December 1959, Torres approached the defendants with a “scheme to help the said insurance company defendants avoid payment of the liabilities under their agreement” with República, amounting to approximately 40,000,000 Venezuelan Bolivars, by making a cash payment of approximately 6,000,000 Bolivars to Torres for the defaulting República. Count I alleged that the defendants knew or should have known that the 6,000,000 Bolivars paid to Torres would not be deposited into the treasury of República to be made available to holders such as plaintiff’s assign- or. República was closed by Venezuelan executive order in February 1960. The 6,000,000 Bolivars was never paid into Republica’s treasury by Torres, who fled the country. Count I alleged that defendants failed to honor the avals on any of the bills of exchange at bar when the bills were presented to them at maturity, after the bills had been presented to the drawers, the acceptors and República. Plaintiff alleged that defendants’ act in paying the 6,000,000 Bolivars to Torres was intentional and constituted negligence under the laws of Venezuela since defendants knew that Torres had defrauded them of 400,000 Bolivars approximately eight months previous, and since defendants afforded the holders of the bills of exchange guaranteed by República neither protection nor opportunity to protect themselves through notice of Torres’ acts.

Count II of the tendered fourth amended complaint realleged the general allegations of Count I and specifically alleged that the unwritten agreement entered into between República and the defendants, for the purpose of guaranteeing bills of exchange, constituted an attempt to create either a limited partnership or a general partnership under the laws of Venezuela. Count II alleged that because República and the defendants engaged in the aforementioned business without having executed a written document, without having filed such document with the local court, without having published an extract of such document in a local newspaper, and without having adopted a name under which they were to have engaged in said business, all of which was required by Venezuelan law, the association was not a “legally constituted partnership” as specifically provided by the pertinent Venezuelan statute. Since the statute rendered all “founding partners, administrators or any other persons who may have acted” in the name of the partnership personally and jointly liable for its operations, Count II alleged that defendants, as such founding partners of a partnership not legally constituted, were liable on the avals after dishonor of the bills of exchange at bar by the drawers and the acceptors thereof, and by República. Count I of the third amended complaint corresponds to Count II of the tendered fourth amended complaint.

Count III of the tendered fourth amended complaint realleged the general provisions of Count I and further alleged that República, in granting the avals on the bills of exchange at bar, acted as agent for the defendants within meaning of the statutes of Venezuela. The count alleged that defendants are liable as principals on the guarantees of República. Count II of the third amended complaint corresponds to Count III of the tendered fourth amended complaint.

Count IV of the tendered fourth amended complaint realleged the general allegations of Count I and specifically alleged that, under the laws of Venezuela, defendants were guilty of fraud. Plaintiff alleged that defendants, through their agent República, “with the intention of deceiving and defrauding plaintiff’s assignor,” represented to Seth B. Atwood that República was authorized to assure the prospective purchasers of the bills of exchange at bar that the guarantees would be honored by República and the defendants, in the percentages set out above, in the event of nonpayment by the drawers and acceptors of the bills. Plaintiff further alleged that “such statements of fact were either untrue and known to be untrue or were recklessly made without regard for their truth.” Plaintiff alleged that the representations of República were false, in that at the time they were made, defendants had not in fact agreed that the avals on the bills in question would be honored by República and the defendants in the percentages set forth, and that they had no intention of making such payments. It was finally alleged that plaintiff’s assignor relied upon such representations and purchased the bills at bar, which were worthless. Count III of the third amended complaint corresponds to Count IV of the tendered fourth amended complaint. The third amended complaint contained a fifth count, dealing with third party beneficiaries, which was not incorporated into the tendered fourth amended complaint nor in any way raised as an issue on this appeal.

Attached to the complaint as exhibits, in addition to the dishonored bills of exchange in question, were the Spanish texts and the English translations of the Venezuelan statutes relied upon by plaintiff; English translations were also provided by Continental. The statutes and their translations consisted of Venezuelan law governing negotiable instruments, avals, business ventures such as corporations and partnerships, agency, negligence, and fraud. It is undisputed that the translations provided by the parties hereto accurately state the verbiage in English of the Spanish texts cited.

The trial court held that Count II of the tendered fourth amended complaint failed to state a cause of action on the same grounds as Count I of the third amended complaint, namely, since República and defendants failed to enter a written contract of their business association and register the same with the appropriate local court in Venezuela, since they failed to publish their partnership status in the newspaper, and since they failed to secure a name under which the partnership was to act, all as required by Venezuelan law in order to create a “legally constituted partnership,” only República could be held liable for its operations since only República did in fact act in granting the avals. The court reasoned that, under the language of the pertinent Venezuelan statute, the “founding partners” of an illegally constituted partnership were not liable for the operations thereof unless they “acted in the name of” the illegally formed partnership, which defendants here did not do.

The court held Count III of the tendered fourth amended complaint did not state a cause of action in agency since, under the meaning of the pertinent provisions of the Venezuelan Commercial Code, only the party whose name appears on the aval can be liable thereunder. The court held that since defendants’ names did not appear on the bills in question, they cannot be held liable under Republica’s avals.

It was further held that Count IV of the tendered fourth amended complaint did not state a cause of action for fraud since the count contained no allegation that República made any false representations of any existing facts to plaintiff’s assignor, or that defendants authorized República to make any false representations. The court reasoned that plaintiff’s assignor was presumed to know the laws of Venezuela when he began trading there and consequently was not justified in placing reliance upon Republica’s oral representations that defendants were backing its avals.

Finally, the trial court held Count I of the tendered fourth amended complaint did not state a cause of action for negligence for the same reason that Count IV of the third amended complaint was held not to state a cause of action. However, Count I of the tendered fourth amended complaint based its theory of negligence upon defendants’ alleged actions with Torres after República ceased honoring its avals, whereas Count IV of the third amended complaint was predicated upon the alleged fraudulent misrepresentations made by República to plaintiff’s assignor, as were Counts IV of the tendered fourth amended complaint and Count III of the third amended complaint.

The parties are in agreement that the English translations of the Spanish texts of the Venezuelan statutes relied upon in the pleadings substantially reflect the verbiage of those statutes, but a serious dispute exists between them as to the meaning or interpretation of several of those statutes, relating to partnerships, agency and avals. The parties also agree that the substantive law of Venezuela and the procedural law of Illinois govern the questions raised herein.

Article 219 of the Venezuelan Commercial Code provides :

“Where in connection with the formation of an association, the formalities required under Articles 211, 212, 213, 214 and 215, as the case may be, are not promptly complied with, and while they are not complied with the association shall not be deemed legally constituted. The founding partners, the administrators or any other persons who may have acted in its name, shall be personally and jointly liable for its operations.”

Articles 211, 212, 213, 214 and 215 deal with the written document and the formalities required to create the partnership association. The document of association must be filed with the local Venezuelan Commercial Court, and an extract of the document must be published in a newspaper within the jurisdiction of the court, or, where no newspaper exists, the extract must be posted in the most public places of the association’s domicile. The extract referred to above must contain, among other pertinent matters, the names and residences of the founding general partners, the name of the association under which the partnership was to conduct business, and the names of the partners authorized to act in its behalf.

The tendered fourth amended complaint specifically alleged that through Sterling Offices of Canada, defendants and República became associated for the purpose of guaranteeing bills of exchange in the Venezuelan money markets in accordance with the trade custom developed in Venezuela during the 1950’s. Defendants, it was alleged, agreed to share the premiums and losses connected with the guaranteed bills on a fixed percentage basis. Count II of the tendered fourth amended complaint specifically alleged that this association was an attempt to organize either a limited partnership or a general partnership under the laws of Venezuela, but that defendants and República failed to comply with certain formalities set out in the Venezuelan laws in this regard. Under plaintiff’s theory, it cannot be seriously disputed that the alleged association was an incompletely formed partnership, and that consequently Article 219 of the Venezuelan Commercial Code becomes here involved.

The question arises as to the effect of Article 219 upon the liability of the defendants to account for the acts of República in the granting of the avals. Plaintiff maintains that because defendants and República failed to organize a “legally constituted partnership” by failure to comply with the Venezuelan statutes which regulate the creation of partnerships, they, as “founding partners,” became personally and jointly liable for all operations of the illegally constituted partnership, under Article 219. Continental, on the other hand, maintains that only those founding partners “who may have acted in [the partnership’s] name” are liable within the meaning of Article 219.

If Article 219 is interpreted as Continental suggests, and as interpreted by the trial court, only those persons who in fact act in the name of the illegally constituted partnership may be held liable for its operations. If, on the other hand, the statute is interpreted as plaintiff suggests, all founding partners (such as defendants) and all administrators, regardless of whether they in fact acted in the partnership name, in addition to those other persons who did in fact act in the partnership name, will be held personally and jointly liable for its operations. Plaintiff maintains that the trial court was in error in adopting Continental’s view of the interpretation of Article 219 without first having considered the advice of experts as to the meaning of the Venezuelan statute.

Articles 438, 439, 440 and 455 of the Venezuelan Commercial Code deal with the creation of avals, and the liabilities and rights incident thereto. They provide:

Art 438 — “The payment of a bill of exchange may be guaranteed by an aval.
“This guarantee may be given by a third party or even by someone appearing on the bill.”
Art 439 — “The aval is written either on the bill of exchange or separately on an attached paper.
“It is expressed by the words ‘bueno por aval’ or any other equivalent expression, and is signed by the grantor of the aval.
“An aval is deemed to exist as a sole consequence of the signature of the grantor of the aval placed on the face of the bill, except where such signature is that of the drawee or drawer thereof.
“An aval must specify for whose account it is granted. In the absence of such an indication, it is deemed to be granted for the benefit of the drawer.”
Art 440 — “The grantor of an aval is bound in the same manner as the person for whom he has become guarantor.”
Art 455 — “All drawers, endorsers or guarantors by aval of a bill of exchange are jointly and severally liable to the holder.
“The latter has the right to proceed against all of these persons, jointly or severally, without being required to observe the order in which they have become liable.
“The same right is possessed by any signer of a bill who has paid it.
“Proceedings against one of the obligees do not prevent proceedings against the others, even against those who are subsequent to the one first proceeded against.”

Articles 1684, 1685, 1691 and 1698 of the Venezuelan Civil Code deal with agency and provide:

Art 1684 — “The agency is a contract, by which one person binds oneself, gratuitously or for compensation, to negotiate one or more transactions on behalf of another, who has commissioned him with it.”
Art 1685 — “The agency can be express or tacit. The acceptance of the agency can be tacit and result from the execution of the agency by the agent.”
Art 1691 — “When an agent acts in his own name, the principal has no action against those with whom the agent has contracted, nor they against the principal. In that case, the agent is obligated directly to the person with whom he has contracted, as if the transaction were his own.”
Art 1698 — “The principal is obligated to fulfill all of the obligations contracted by the agent within the limits of the agency. To the extent that the agent acts in excess of said limits, the principal is not bound, unless he expressly or tacitly ratifies such acts in excess of said limits.”

Count III of the tendered fourth amended complaint alleged República acted as agent for the defendants in the creation of the avals on the bills of exchange at bar. The creation of an aval exists as the “sole consequence of the signature of the grantor of the aval placed on the face of the bill,” and Continental maintains that República, and only República, can be held liable on the avals on the bills in question since only its name appears on the bills in connection with the avals. However, the Articles governing the creation of avals do not, on their face, necessarily preclude the grantor of an aval from acting as agent for another in granting the aval and binding that principal by such action. A question consequently arises whether República, within the interpretation of the appropriate Venezuelan statutes, acted as agent of the defendants, or whether it acted solely in its own right in the granting of the avals in question. Although Continental maintains that plaintiff is here suing on the negotiable instruments themselves, it is clear that plaintiff’s tendered fourth amended complaint is predicated upon the guarantees or avals on the instruments, rather than on the instruments themselves. Again, plaintiff contends that the trial court was in error in adopting Continental’s view of the interpretation of the Venezuelan statutes governing agency and the creation of avals without first having considered the advice of experts on the matter.

We are of the opinion that the trial court should have considered expert testimony and authorities as to the meaning of the Venezuelan statutes before arriving at the determination that Counts II and III of the tendered fourth amended complaint did not state causes of action.

While Illinois courts may take judicial notice of the laws of the sister states and of the United States, Ill Rev Stats 1967, c 51, par 48(g), the laws of foreign countries cannot be judicially noticed by Illinois courts. Ill Rev Stats 1967, c 51, par 48 (k); In re Estate of Glenos, 53 Ill App2d 283, 202 NE2d 833. The foreign law must be proved just as any other fact, but creates an “issue for the court” rather than one for the jury.

No Illinois decision has been cited, or found, bearing on the question of the propriety of a trial court’s dismissal of a complaint at the pleadings stage of a case based upon the court’s determination of the interpretation of the substantive law of a foreign country, where the parties are in serious dispute as to the interpretation thereof, without having heard expert testimony and/or considered other authorities on the meaning and interpretation of such foreign law. In absence of an Illinois determination on a point of law, the courts of this state will look to other jurisdictions as persuasive authority. Cooper v. Hinrichs, 10 Ill2d 269, 273, 140 NE2d 293.

New York has a liberal judicial notice provision which gives the courts of that state the discretion to take judicial notice of the laws of foreign countries. See New York Civil Practice Act section 344r-a. While the New York courts do have such discretion, numerous decisions of that state hold that where any dispute arises concerning the foreign law, the discretion will not be exercised and the foreign law will not be judicially noticed. See generally Sommerich & Busch, The Expert Witness and The Proof of Foreign Law, 38 Cornell LQ 125; De Sairigne v. Gould, 3 Misc2d 452, 148 NYS2d 57; Walton v. Arabian American Oil Co., 233 F2d 541, 544-545.

After an extensive analysis of New York cases bearing on the question of judicial notice of foreign law, Sommerich and Busch turn to a consideration of the proofs necessary to establish a foreign law when the New York court refuses to judicially notice it, a situation paralleling the position of the statute in Illinois regarding judicial notice of foreign laws:

“In spite of the existence of foreign statutes, judgments, treatises and commentaries, or even of ‘officiak declarations or certificates, irreconcilable conflict will frequently arise in bitterly contested proceedings. Such instances call for the opinions of experts in the foreign law involved. It would otherwise seem to be placing too much burden upon the court to expect it to determine the foreign law without other assistance when such situations arise. . . .
“[T]he use of the expert witness may frequently be essential; in all cases expert witnesses are desirable. All misunderstandings concerning facts, differences in translations, paths of reasoning and foundations for conclusions can be explored by direct and cross-examination in the presence of the parties, the court and the jury. The fullest compliance with every concept of fair play is possible in such events.” (Pp 147-148.)

It is clear that such “other assistance” is essential in the case at bar due to the dispute between the parties over the meaning of the Venezuelan statutes relating to partnership, avals and agency.

While Continental argues that the pertinent Venezuelan statutes were proved and stipulated to and that it became solely a question for the court as to the interpretation of those statutes, only the verbiage or wording of those statutes was proved and stipulated to, and not the meaning of those statutes.

The citations advanced by Continental in support of its position are not in point. Finney v. Guy, 189 US 335, involved a question arising under the laws of a sister state, not those of a foreign, non-English speaking, civil law country. Chicago & N. W. Ry. Co. v. Tuite, 44 Ill App 535, and Daniel Lumber Co. v. Empress Hondurenas, S. A., 215 F2d 465, involved complete trials and expert testimony relating to the interpretation of the respective laws. In Caribbean S.S. Co. v. La Societe Navale Caennaise, 140 F Supp 16, the court stated, at p 21, that if the case should be heard on its merits, a dispute as to the meaning of the foreign law would exist, and the trial court would be obliged to accept the interpretation of experts or arrive at its own conclusion after a review of the foreign law and the decided cases.

Neither Count I nor Count IV of the tendered fourth amended complaint state a cause of action. Count I charges defendants with negligence in that they paid 6,000,000 Bolivars to Pedro Torres in an attempt to discharge a debt of 40,000,000 Bolivars allegedly owed to plaintiff’s assignor and other holders of bills of exchange similarly situated. As is generally alleged by the tendered fourth amended complaint, defendants knew República had ceased honoring its avals as of June 1959, and knew also that one of the bills of exchange at bar fell due in October 1959. It is alleged that Torres did not approach defendants for the 6,000,000 Bolivars with his “scheme to avoid payment of 40,000,000 Bolivars” total liability until December 1959. However, eight of the nine bills in question were not due to mature until August 1960, totalling over one-half of the total liability of defendants under their alleged co-guarantees on the bills in question. As noted above, the thrust of plaintiff’s tendered fourth amended complaint and third amended complaint is that defendants are liable to plaintiff by virtue of their status as co-guarantors on the bills of exchange in question. If plaintiff is entitled to recover against Continental on the grounds of co-guarantorship, whatever dealings may have transpired between defendants and Torres or República after the avals were granted are immaterial; if, on the other hand, plaintiff is not entitled to recover on that theory, any dealings between Torres or República and defendants are likewise immaterial.

Count IV alleges that defendants, through República, were guilty of fraudulent representations in inducing plaintiff’s assignor to purchase the bills of exchange in question. Count IV alleges that República, as agent of defendants, and with the intent to deceive, represented to plaintiff’s assignor that defendants would guarantee the bills in question in the event of a default on the part of the drawers of the drafts and that this course of conduct was pursued by defendants with intent to induce plaintiff’s assignor to purchase the drafts, who in turn relied upon the said representations in the purchase of the drafts.

As a matter of procedural law in Illinois, it is well settled that facts must be alleged with particularity in order to state a good cause of action for fraud. It is not enough to characterize acts performed as fraudulently performed. An actionable wrong cannot be made out by characterizing the acts as wrongfully done. The pleading of conclusions alone will not suffice for the factual allegations upon which a cause of action must be based. See Sulinski v. Humboldt & Wabansia Bldg. Corp., 315 Ill App 392, 402, 43 NE2d 181; and Skolnick v. Nudelman, 71 Ill App2d 424, 428, 218 NE2d 775.

Continental contends that plaintiff, by tendering its fourth amended complaint, stood on its stricken third amended complaint and acceded to the court’s action thereon. Continental argues that plaintiff cannot arise any matters in connection with the third amended complaint on this appeal. As the ruling made on the motion to strike the tendered fourth amended complaint clearly sets out, the motion to strike the third amended complaint was “still pending and undecided” at the time of the ruling on the motion to strike the tendered fourth amended complaint. Ruling on the motion to strike the third amended complaint was deferred by the court until such time as the fourth amended complaint was tendered and the court had an opportunity to “determine whether or not any additional facts are alleged which could give the court reason to grant leave for filing such fourth amended complaint.” The “pending and undecided” motion to strike the third amended complaint was disposed of in the order denying plaintiff leave to file the tendered fourth amended complaint. Plaintiff therefore properly appeals from the order striking the third amended complaint, denying leave to file the tendered fourth amended complaint, and dismissing the action as to Continental.

For these reasons the judgment is reversed and the cause is remanded with directions to grant plaintiff leave to file its tendered fourth amended complaint, except Count I and Count IV thereof, and for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded with directions.

LYONS, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Barnester Smith, Defendant-Appellant.
    Gen. No. 52,575.
    First District, Second Division.
    March 18, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Yeldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Barnester Smith, was indicted for theft of property of a value in excess of $150. He was tried before a jury, was convicted, and sentenced to a term of one to five years in the Illinois State Penitentiary. The only question before this court is whether he was convicted beyond a reasonable doubt.

Defendant was accused of stealing a 1965 Pontiac from in front of the owner’s home at 7335 South Michigan Avenue, Chicago. The owner of the car, Robert Cummings, is the complaining witness in the case.

On July 10, 1966, at about 2:30 a. m., police officers in a passing squad car noticed an automobile parked in the alley at 6252 South Ellis Avenue. They checked the license number and found it listed on their “hot sheet.” When they approached the car the defendant was sitting behind the wheel, and two men were coming to the car carrying barbecue which they were delivering to the defendant. The officers removed the ignition key from the car after determining that it would start the engine and would open the door on the passenger side of the car, then placed the defendant under arrest, taking him and the other two men to the police station. The two men were later released after questioning.

At the time the officers first came to the car the defendant denied that it was stolen and said it belonged to his uncle; that his uncle’s name was Cummings, and that he lived at 73rd and Michigan. In the trial of the case he testified that he had not stolen the car, but that he had seen it parked in the same place in the alley for several days, and had sat in it to drink, rather than stand in the alley or drink in a tavern. He also testified that a police officer found half a bottle of whisky when he searched the car. This statement was denied by the police officer.

The car had been driven about 400 miles between the time it was stolen and the time of defendant’s arrest. Defendant was searched at the police station after his arrest, and a gasoline credit card was found in his wallet, together with a purchase receipt bearing the license number of the stolen car and dated the day before the arrest. At the trial the defendant testified he had never put gasoline into the car and that he did not use a credit card.

At the time of the arrest of defendant no question was raised, or could be raised, that the car in question was stolen. It is the law that the possession of stolen property soon after its theft affords evidence of guilt and may be sufficient to create a prima facie case. The presumption of guilt is one of fact arising from the accused’s unexplained possession of recently stolen property where the corpus delicti has been proved. People v. Norris, 362 Ill 492, 200 NE 330. It is also the rule that where a defendant found in exclusive possession of stolen property attempts to explain it, he must tell a reasonable story or be judged by its improbabilities. People v. Meyers, 412 Ill 136, 105 NE2d 746; People v. Williams, 86 Ill App2d 209, 229 NE2d 158. In People v. Pride, 16 Ill2d 82, 156 NE2d 551, the rule is laid down that “recent possession” may be as long as 25 days from the time of the theft.

In the case before us the defendant was proved to have been in exclusive possession of the car. The fact that the police officer testified to the finding of the credit card and the gas receipt in the defendant’s wallet, together with his being found in the car at the time of his arrest, is sufficient. The evidence against the defendant was purely circumstantial. In People v. Marino, 95 Ill App2d 391, 238 NE2d 256, the court said at page 394:

“Defendant also argues that because this conviction is based on circumstantial evidence, such evidence must ‘thoroughly establish guilt as to exclude every reasonable hypothesis of innocence.’ See Wharton’s Criminal Evidence, 12th Edition, § 6. However, Wharton goes on to say in section 980, ‘circumstantial evidence need not be such that no possible theory other than guilt can stand: only proof beyond a reasonable doubt is required. It is not necessary that circumstantial evidence exclude every possibility of the defendant’s innocence, or produce absolute certainty in the minds of the jurors.’ This statement is the law in Hlinois. People v. Lofton, 64 Ill App2d 238, . . . .”

It is well-settled law that the credibility of the witness is a question to be determined by the trier of the facts.

People v. Davis, 69 Ill App2d 120, 216 NE2d 490, cited by the defendant, lays down the rule that the exclusive possession of a recently stolen automobile is sufficient to warrant a conviction for theft of that automobile. It also holds that mere association with a stolen article is not necessarily the possession of that article, and before any inference of guilt can arise from the circumstance it must be shown that the accused was in possession.

In the instant case, the evidence of finding the credit card and the gas receipt in the defendant’s wallet satisfies that requirement. In People v. Norris, supra, the court said at page 494:

“In this case the corpus delicti was proved beyond a reasonable doubt, and the evidence showed that defendants had possession of the stolen automobile at the time it was wrecked. This fact and the other evidence, taken in connection with their failure to make any reasonable explanation of their actions, were sufficient to establish their guilt. People v. Surace, 295 Ill 604.”

Upon a careful examination of the record in the instant case it is evident that the defendant was proved guilty beyond a reasonable doubt. The judgment of the Circuit Court is affirmed.

Affirmed.

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


text:
    W. A. Bruce and L. H. Bruce, Individually and as Partners, d/b/a Oak Park Food Service, and Freezo Center Corporation, an Illinois Corporation, Plaintiffs-Appellees, v. Leonard A. Ferrara, Individually and d/b/a Mid-America Food Service, Inc., Mid-America Food Service, a Corporation, Mary Eggert, Illinois Bell Telephone Company, a Corporation, and The Reuben H. Donnelly Corporation, a Corporation, Defendants-Appellants.
    Gen. No. 52,666.
    First District, Fourth Division.
    March 19, 1969.

      Frankenstein, Lewis & Feierberg, of Chicago (Paul A. Gold, of counsel), for appellants, Leonard A. Ferrara, Mid-America Food Service, Inc., and Mary Eggert.
    Sidley, Austin, Burgess & Smith, of Chicago, for appellants, Illinois Bell Telephone Company and The Reuben H. Donnelley Corporation.
    Groble & Groble, of Chicago (Raymond H. Groble, Jr., of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from a permanent injunction entered in the Circuit Court of Cook County enjoining the defendants and their employees from making use of plaintiffs’ customer lists or soliciting plaintiffs’ customers for the purpose of selling them frozen foods or a membership in a frozen food plan. The court also ordered that an accounting be made by the defendants to the plaintiffs.

On a prior appeal, after oral argument, this court, sua sponte, dismissed the appeal on the ground that the court was without jurisdiction because the judgment order was not final and appealable under section 50(2) of chapter 110, 111 Rev Stats 1963. This court noted that if the court below, on application of the appellant, should see fit to enter an order that no just reason exists for delaying the appeal, and if the subject matter of the appeal were again presented to this court, we would transfer the abstracts and briefs then on file to the new file which would be opened for the new appeal.

The appellants obtained an order from the court below which stated that no just reason existed for delaying the appeal, and the defendants filed the instant appeal. We shall now consider the merits.

On August 14,1962, a temporary injunction was issued against the defendants. The cause was referred to a master who held hearings and filed a report with the court. Objections to the report were filed and the master overruled them, and ordered that they stand as exceptions, which exceptions were overruled by the trial court.

Plaintiffs W. A. Bruce and L. H. Bruce (under the names of Oak Park Food Service and Freezo Center Corporation) were engaged in the business of selling home food freezers, memberships in frozen food purchase plans, and frozen foods to persons residing in the western and northwestern suburbs surrounding Chicago. The offices of plaintiffs are in a building in Oak Park, Illinois, which also houses a freezer area, meat-cutting shop, cooler and work area.

In January 1960, Leonard A. Ferrara, one of the defendants, was employed by plaintiffs as a salesman; he worked for them in that capacity for approximately a month, at which time he left their employ. In May 1960, Ferrara and the plaintiffs entered into a new arrangement, through which Ferrara was to be an independent contractor and dealer selling home freezers and frozen food purchase plans. The plaintiffs agreed that Ferrara could use the name “Oak Park Food Service” and also “Freezo Center” for which privilege Ferrara would pay certain fees to the plaintiffs. In accordance with their agreement Ferrara paid plaintiffs a fee of $55 on every freezer, and a fee of $65 on every food membership plan sold by his organization. Ferrara employed his own salesmen, bookkeepers, telephone solicitors, and had his own office space and telephones. In return for the fees paid by Ferrara the plaintiffs not only agreed to the use of their customer lists for soliciting business, but they supplied Ferrara with certain office space on their premises, permitted the use of plaintiffs’ financing source in connection with the sale of home freezers, and supplied certain other incidental services. When any of Ferrara’s customers required financing for the purchase of a freezer and/or food membership plan, Ferrara guaranteed the payment of such purchase.

All sales made by Ferrara’s organization after September 1960 were made under the names of United Division-Oak Park Food Service and United DivisionFreezo Center. Commencing February 1, 1962, Ferrara terminated financing home freezers through plaintiffs and terminated the fee payment arrangement of $55 per freezer. Thereafter he paid the plaintiffs $140 per month for the rental of office space in plaintiffs’ building. Ferrara obtained several additional telephone numbers and paid his own telephone bills. When he sold food memberships he sold them in Freezo Center, and the purchasers’ names were added to the plaintiffs’ customer list. Ferrara testified that after May 1960 he received $185 from Freezo for every food membership contract he sold; that he sold 500 contracts between June 1960 and June 1962, which would amount to $92,500 paid by Freezo to Ferrara for such sales.

On June 16, 1962, Ferrara moved his organization out of plaintiffs’ premises to new quarters in River Forest, about a mile and a half from the office of plaintiffs. He then organized Mid-America Food Service, Inc., from which he began selling food freezers and frozen food purchase plans, and transferred his telephone service to the new address. Soon after organizing Mid-America Food Service, Ferrara mailed advertisements to customers, advising that the United Division-Oak Park Food Service had changed its name to Mid-America Food Service.

About two weeks after moving, Ferrara hired the defendant, Mary Eggert, as a telephone solicitor for Mid-America Food Service. Prior to that time she had been employed by the plaintiffs as a telephone solicitor, in which capacity she had a working customer card file in her desk of about 900 cards containing information concerning customers. These names had been supplied by both Ferrara’s organization and that of the plaintiffs. Ferrara, while employed by plaintiffs, had found new customers and maintained a duplicate of the list which his organization supplied.

Mary Eggert testified that while working for plaintiffs she kept a working card file of customers’ names; that she received the names from plaintiffs and made cards on those from whom she received orders. She stated that she was responsible for 150 customers per month and was the customer contact.

The plaintiffs, doing business as Freezo Center, had been engaged since 1955 in the sale of frozen foods to the owners of home food freezers. They had acquired a list of customers, beginning with several thousand names which W. A. Bruce, as the distributor for the Rich Plan (a frozen food plan which had been discontinued), had purchased from Ranier Corp., for which list he paid $2,000. They had purchased another list from St. Charles Locker Company for $250, and another list of 2,000 customers from Carson Pirie Scott & Company. These lists had been developed over eleven years, since 1952. As Freezo Center, plaintiffs maintained a customer list which, at the time of the hearing, consisted of nine bound books, each labeled “Customers List.” (This list was introduced in evidence as Plaintiffs’ Exhibit 18.) Freezo Center also maintained a manila folder 8 x 11" customer file, master customer card, and a working card for the telephone solicitor for reordering.

Mrs. L. H. Bruce testified that she also was employed in the office of plaintiffs and that she solicited customers on the telephone. She stated that Freezo had approximately 4,500 active customers immediately prior to June 29, 1962; that there was a customer working card for each of the active customers; that she had approximately 300 of such cards, and that “the remaining working cards were in possession of Mary.”

W. A. Bruce, plaintiff, testified that Mary Eggert had a working card file; that after she left their employ they examined the working cards in her desk and found that approximately 900 of the cards were missing. He stated, “I believe Mary stole 900 cards because they were missing. I did not see her steal them and I know of no one who saw her steal them. Some of the names on the list included Ferrara’s customers. Possibly ten, twenty percent of this list. ... We noticed the cards were missing approximately a month or two after Mary left. If the cards were missing prior to her leaving we would not know.”

W. A. Bruce further testified that after Mary Eggert became an employee of Mid-America Food Service she had contacted 90 percent of the customers on the list prepared by him (Plaintiffs’ Exhibit 11), presumably of the 900 cards which he accused Mary Eggert of taking from the Freezo office. It may be noted that this testimony is not supported anywhere, and that Mary Eggert testified that she called only 112 names listed on Plaintiffs’ Exhibit 11, and that she was the only one who made calls for Mid-America. She further testified that 84 of the 112 calls were made to customers of Ferrara’s, and that 28 of them she made from her memory. She testified that there were 48 duplications on Plaintiffs’ Exhibit 11.

Mary Eggert testified that there were always approximately 1,000 index cards in her desk drawer; that she did not make a list from these cards, nor did she make a record for her own use or for anyone’s use; that she had never stolen any customer lists or index cards from Freezo Center. She testified that she did not attempt to memorize the names of customers on the cards of Freezo but that she had the ability to recall the names of certain of the customers on the index cards.

Ferrara testified that he had never seen any customer lists owned by plaintiffs; had never taken any cards from plaintiffs; nor had Mary Eggert ever brought him any customer lists or cards.

The master found that a suit had been brought by plaintiffs against Ferrara and Eggert to enjoin them from “unfairly competing with plaintiffs in the business of selling home freezers and frozen foods, . . . .” The master also made a finding of fact that during the six years of her employment by plaintiffs, Eggert had used approximately 20,000 customer cards in her duties. “However, her active file consisted of about one thousand cards which she kept in her drawer. All of the names of customers were supplied to Mary by the plaintiffs.”

The master also found, as a matter of fact, that “there is evidence in the record, although not conclusive, that 900 of Mary Eggert’s 3" x 5" customer list cards customarily kept in her desk were missing subsequent to the date she quit her employment at plaintiffs.” As a matter of fact, W. A. Bruce testified that it was two months after she had left their employ that he discovered some of the cards were missing. The master also found that a majority of these 900 customers were contacted by Eggert after she commenced working for Mid-America. On that subject W. A. Bruce’s testimony was that he compiled a list which represented the names on the missing cards; that they prepared this list a month after Mary Eggert left because they were not receiving the “orders that we normally would get from customers.” He continued his testimony, stating that they first “noticed the cards were missing approximately a month or two after Mary left. If the cards were missing prior to her leaving, we did not know.”

The master’s finding that there was evidence which was not conclusive, that Eggert took the cards, goes much too far. To hold that Eggert took the cards, on the evidence in the record, is an unjustified inference and is answered by Eggert’s testimony which flatly contradicted any such allegation. Mrs. Bruce testified that there were approximately 4,200 cards in Eggert’s possession ; that evidence is not substantiated. (It is worthy of note that Plaintiffs’ Exhibit 18, which was admitted in evidence, includes the plaintiffs’ customers from 1955 to 1962 and contains over 20,000 names.) On the other hand, Eggert testified that while she was working for plaintiffs she had approximately 1,000 index cards in her desk drawer and that there were eight or ten people in the employ of plaintiffs who had access to the index cards. After examining the list prepared by plaintiffs as Exhibit 11, Eggert testified that she had called only 112 names so listed; that 84 of the calls were to customers of Ferrara’s; and that she made 28 calls from memory. The nine volumes of customer lists were received in evidence. The finding of the master that Mary Eggert took the 900 cards was against the manifest weight of the evidence.

We must bear in mind that in this case there was no restrictive covenant ancillary to employment between the plaintiffs and the defendants. In American Cleaners and Dyers v. Foreman, 252 Ill App 122, a decree was obtained in the trial court enjoining defendants from soliciting orders for cleaning and dyeing from certain listed customers of plaintiff’s. The Appellate Court found that there was no express contract between the plaintiff and the defendants providing that defendants would not solicit any of their old customers, and determined that it was error to have issued the injunction. That case stated, however, that if the employee had surreptitiously copied the names and addresses of his employer’s customers and fraudulently taken such list with him, he would be enjoined from soliciting such customers for his new employer. The court discussed and distinguished Boylston Coal Co. v. Rautenbush, 237 Ill App 550, which held that while there was no contract between the employer and the employee, an injunction should properly be issued against the employee since there was sufficient evidence to prove that a list which had been in plaintiff’s possession was surreptitiously taken by the departing employee. The Boylston court, however, pointed out that the list in question was of a peculiar character and quality, and employees entrusted with the information contained in the list could not be allowed to use that information to the detriment of the plaintiff employer. The court said: “A list of agents in the mail order coal business was in the nature of a trade or business secret; . . . .” (Page 558.)

In American Cleaners and Dyers v. Foreman, supra, the court pointed out the further distinction that in Boylston the evidence was sufficient to prove that the defendant had surreptitiously taken a printed list, and such list was in the nature of a trade secret. The court stated at page 134:

“Upon a consideration of the authorities we are of the opinion that the great weight of authority and the better reason supports the view that, in the absence of an express contract, equity will not enjoin a former employee from soliciting the employer’s customers whom he served during his employment where, as here, no list of names was taken . . . and no fraud was committed by them. . . . the names and addresses of complainant’s customers were not trade secrets within the meaning of the law. And as stated by the Supreme Court of Maryland, to enjoin them under the facts disclosed would tend to destroy their freedom ‘and to reduce them to a condition of industrial servitude.’ ”

In a recent case, Mid-States Vending Service v. Bosen, 77 Ill App2d 83, 222 NE2d 99, a question arose similar to that in the case before us. A temporary injunction had been issued restraining the defendant from soliciting business of customers of plaintiff who had been customers during the period of defendant’s employment by plaintiff. There was no restraining restrictive contract. The defendant had left plaintiff’s employ, where his duties primarily had been seeking out new customers and servicing complaints of current customers. He was employed there for approximately two months, was then employed by another company, and later became a freelancer. The court cited and quoted with approval from American Cleaners and Dyers v. Foreman, 252 Ill App 122; also Professional Service Corp. v. Johnson, 316 Ill App 431, 45 NE2d 191, which latter case held that a defendant could solicit his former employer’s customers even though he had been employed as manager of plaintiff’s collection agency. The court held that there was no proof that defendant had taken the customer’s list with him, but only showed that the defendant may have been familiar with those with whom he dealt while in plaintiff’s employ. The court reversed the order granting a temporary injunction.

In the case before us there was no restrictive covenant. The evidence was insufficient to show that any list was surreptitiously taken by plaintiffs’ employee. Ferrara started his own business on June 16,1962, and two weeks later Eggert became his employee. The trial court entered a temporary injunction on August 14, 1962; on April 7, 1965, the trial court entered a permanent injunction by which the defendants were restrained from making use of plaintiffs’ customer lists or soliciting plaintiffs’ customers. The court indicated that the customer lists referred to were the nine volumes of names introduced in evidence as Plaintiffs’ Exhibit 18 (20,000 names). In other words, the defendants were enjoined from soliciting any names appearing on that list, whether or not the names were known to Ferrara or Eggert.

The question as to the use of telephone numbers in Ferrara’s new business, which numbers had formerly-been used by him, has become moot, and there is not sufficient evidence in the record to prove that Ferrara unfairly sent out advertisements. Ferrara had been authorized by plaintiffs to solicit orders and to do business independently under the name of United Division-Oak Park Food Service. No restrictive contract was entered into between the parties at that time. Later, when Ferrara established his own business, the advertisements which he sent out were that “United Division-Oak Park Food Service” had changed its name to Mid-America Food Service, and had moved its place of business, giving the address. The evidence is not sufficient to show an unfair attempt on the part of Ferrara to take advantage of plaintiffs.

It is true that five checks were received at the office of Mid-America Food Service, which checks were intended for plaintiffs, but such limited incidents do not establish the necessity for an injunction, especially since the checks were immediately endorsed by Ferrara and sent to Freezo Center.

It would seem reasonable to assume that if Ferrara was soliciting independently under the name of United Division-Oak Park Food Service, he would be entitled to keep an independent list of the customers he had independently contacted and solicited, and that any use of that list would not be interfering with any right of plaintiffs.

The permanent injunction should not have been granted; it was far too broad, inasmuch as it includes all of the 20,000 names contained in Plaintiffs’ Exhibit 18. Also, there is no showing that any former customer of plaintiffs, except one, placed any order with Ferrara. The testimony is that there was only one order placed by that customer. In its injunction the court ordered an accounting by Ferrara for any gain derived by him for sales to any of plaintiffs’ customers. As pointed out, there was only one order of one customer involved. Here we must apply the maxim, de minimis non curat lex. Mrs. Bruce testified that at the time Ferrara organized Mid-America Food Service, the plaintiffs had approximately 4,500 active customers. While it is true that Eggert had been working with the plaintiffs since 1956, there is nothing in the record to indicate that the 20,000 names in Plaintiffs’ Exhibit 18 were active customers. The evidence in the record does not support the findings of the master, nor the final injunction order entered in the trial court.

The case is reversed and remanded with directions to the trial court to dismiss the complaint.

Reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Pecora, Defendant-Appellant.
    Gen. No. 53,628.
    First District, Fourth Division.
    March 19, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      William G. Clark, Attorney General of State of Illinois, of Springfield (Fred G. Leach, Assistant Attorney General, 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 DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court finding defendant guilty of the murder of his ex-wife, Carolyn Pécora, and sentencing him to the penitentiary for a term of not less than fourteen nor more than twenty years. The cause was transferred to this court from the Supreme Court.

Defendant raises three contentions on appeal: (1) the jury should have been instructed as to the law of voluntary manslaughter; (2) defendant was denied his right to fully present the defense of insanity by the improper rulings of the court in relation to certain evidence and testimony; and (3) defendant was denied a fair trial by the improper rulings and remarks of the trial judge and by the improper remarks and argument of the State’s Attorney.

At a pretrial competency hearing defendant was found to be competent.

EVIDENCE

The State’s evidence disclosed that Carolyn Pécora died on December 21, 1964, from a stab wound of the pulmonary artery; the autopsy showed twenty-one stab wounds in all. Defendant’s statement, which was admitted without objection, is substantially as follows:

Defendant and the deceased, his ex-wife, had been in court on December 4 and 7, 1964, in a custody fight wherein the deceased was cited for immoral conduct before the children and placed on probation for a year. The children had seen her and another man in the nude. Defendant learned that subsequent to the probation she had had two men in her house on different nights.

On the night of December 20, 1964, defendant took the deceased and their three children to a children’s program at the church. After the program they had dinner and then the deceased insisted that defendant drop her off at the Vegas Lounge because she wanted to be alone for an hour. Defendant complied and took the children home. Defendant returned to the Vegas Lounge at 11:00 p. m. and found the deceased sitting with a man unknown to the defendant. She persisted in staying a few minutes longer and then returned to her house with defendant.

The deceased wanted some more to drink so defendant went out and purchased a pint of whiskey. They had intercourse and she told defendant that he did not know how to make love; that she had been intimate with five men and that she had had an abortion before she married defendant.

The next day (December 21, 1964) deceased called defendant at work in the afternoon and told him that she was going to take a nap. Defendant was worried about the children not getting fed so he went over to the house. As he arrived, deceased got up and defendant told her that he would prepare dinner. After he had fed the family and cleaned up the kitchen, he found his wife in the basement and he renewed the discussion of the night before in an attempt to effect a reconciliation. He begged her to stop her immoral conduct and to get together with him again; but she said that she did not want any part of it because she was having too good a time.

Defendant then went upstairs and put the children to bed, and shortly thereafter the deceased came upstairs to the living room. They got into an argument again about her conduct, but she said that she did not think that she was doing anything wrong. She kept ridiculing the defendant and he kept begging her to give themselves another chance. She was sitting in the living room with a drink in her hand. Defendant took the drink away from her and asked her to please stop, she was very flip and defendant hit her with a knife taken from a rack on one of the cabinet doors in the kitchen. He hit her several times, dragged her to the basement steps and pushed her down the steps.

Testimony of Father John Grace, witness for the State:

He has been the assistant Pastor of St. Patrick’s Church since the summer of 1965; before that he had been assigned to St. Mary’s Church in Des Plaines for five years. The defendant was a member of St. Mary’s and had sought spiritual counselling two or three times.

At about 7:30 or 8:00 p. m. on December 21, 1964, he received a phone call from the defendant requesting that he come to the deceased’s house because the defendant had had a fight with her. The witness told the defendant that he would come as soon as he finished another appointment. A few minutes later the defendant called again and asked witness to hurry because defendant was “in deep trouble.” Witness told defendant that he would have to bring the police, and defendant said, “Well, come right away.”

Witness and Father Morgenthala proceeded to the police station and got Corporal Gibson and Trooper Lehman to go to the deceased’s house with them. When they arrived, defendant told him that he had done something terrible; defendant seemed very worried about what was going to happen to his children. The house was in a state of general disorder; it appeared as if some sort of struggle had taken place in the living room.

On cross-examination the witness stated that he had counselled the defendant several times about his marital problems. The witness inquired about reconciliation, and the defendant seemed willing if it would help his children; defendant was more concerned with the welfare of his children than with reconciliation. He was concerned with removing the children from an unhealthy, unwholesome environment.

Testimony of Leroy J. Osberg, witness for the State:

He has been a friend of the defendant for about fifteen years. At about 9:00 p. m. on December 21, 1964, he received a phone call from defendant in which defendant asked him to come over to the deceased’s house and get their children because he had killed his wife. About thirty minutes later the witness arrived at the deceased’s house and was admitted by a State Trooper; he saw the deceased’s body from the top of the basement stairs but did not go down.

When he arrived at the house, the children were sleeping, and after a word with defendant, he went to see about the children. He did notice some spots on the rug after he heard some mention of blood spots during the interrogation of the defendant; the spots were wet.

Testimony of Guy Gibson, witness for the State:

He is a sergeant of the State Police. At the request of Fathers Grace and Morgenthala, he and Trooper Lehman went to the house of the deceased. Defendant admitted the four of them through the back door and told the witness, in response to a question, that his wife was on the back stairs. The witness found the deceased on the back stairs and tested her pulse. Finding no pulse he made various routine calls.

Awaiting the arrival of several people, the witness had a conversation with defendant in which the defendant described the action of the two evenings as recited in his written statement with these differences. (1) Defendant told the witness that he had gotten the knife from the kitchen and then had come back from the kitchen and continued the conversation with his wife for a few minutes. He then hit her with the knife, and he hit her several more times, when she began to scream, in order to quiet her. He did not remember how many times he struck her. (2) After defendant pushed her down the stairs, he came back to the living room and attempted to clean up the blood; then he realized that something would have to be done about the children and he called Father Grace. (3) He said that he threw her body down the stairs and tried to clean up the blood so that the children would not see it.

When he went to check the deceased she was in a generally disorderly fashion with her head toward the left hanging over the open stairwell. A knife handle was protruding from the rectal area of the body.

The defendant’s face was flushed, his eyes were red-rimmed and bloodshot, and he seemed very distraught. He was coherent at the times when the witness talked to him; the answers given the witness’s questions were generally short and did not seem to be rambling in any sense.

Other police officers also testified in corroboration of the conditions found at the home of the deceased.

Testimony (in part) of William H. Haines, witness for the defense:

He is director of the Behavior Clinic of the Criminal Court of Cook County (he was qualified as an expert in the field of nervous and mental diseases).

He examined defendant in March 1965 to determine his ability to stand trial. He diagnosed defendant as being able to cooperate with his counsel and having knowledge of the charge against him. It was also the suspicion of the witness that a paranoid state may be present in the defendant. The history used in this diagnosis concerned defendant’s confinement in two mental institutions and a suicide attempt as revealed in a questionnaire of the defendant’s mother.

Testimony (in part) of Earl Solon, witness for the defense:

He is a medical doctor specializing in psychiatry. (The witness was qualified as an expert in psychiatry.)

He treated the defendant in 1963; as part of that treatment the defendant was hospitalized. Pursuant to subpoena the witness brought his own records in connection with the defendant’s case.

Defendant first came to the doctor on August 22,1963; at that time an interview was conducted to evaluate the defendant’s emotional state and his complaints. There was no diagnosis at that time although there was a tentative impression. The tentative impression was that there was a paranoid illness present. At that time the defendant gave a partial history. Defendant told of acute depression, a recent suicide attempt, several previous suicide attempts, previous hospitalization and psychiatric treatment, and that he felt a great deal of emotional turmoil at that time and was looking for treatment to relieve him.

Defendant further indicated that the basis for his distress was his relationship with his ex-wife, and he felt that he was a martyr to her abuse of him. Defendant’s feelings were quite strong about her; he felt that she was running around with other men and that he was forced to witness his children living with her under those circumstances.

A week later defendant returned for another appointment and gave further history. Witness’s impression was that there was a schizoid personality present in the defendant with a paranoid reaction on top of that.

Additional information confirmed the doctor’s original analysis, and with succeeding weeks he became more certain of his diagnosis.

Later in the month of September defendant was started on tranquilizers to diminish the intensity of feelings within him so that he would feel less strain, less anger and less hostility towards his ex-wife. Defendant believed that she was running around and having affairs with other men and that she was depriving him of his rights to visit their children. After six visits, hospitalization was suggested. Defendant entered a hospital on November 10, 1963. He was discharged on November 25, 1963, and the doctor did not see him after that.

The doctor has no personal information concerning the events surrounding the death of the deceased; all he knows comes from news reports and talk around the hospital. Based on his medical training and background the doctor could not have an opinion as to whether or not on December 21, 1964, the defendant was suffering from a mental disease or mental defect to such a degree that he lacked sufficient capacity to appreciate the criminality of his actions. The witness was also unable to render an opinion as to whether defendant on December 21, 1964, was suffering from a mental disease or mental defect to such a degree that he was unable to conform his conduct to the requirements of the law.

Testimony (in part) of Norman Robertson, witness for the defense:

He is a clinical psychologist employed by the State of Illinois in the Department of Mental Health. He has a B.A. degree in psychology from Valparaiso University, an M.A. in psychology from Indiana University and has completed correspondence work for a Ph.D. in psychology from the University of Chicago. He has been certified by the State of Illinois. His work consists of doing therapy with people in need of psychiatric care. He also does diagnostic testing, evaluating the seriousness of illnesses, the implications, making recommendations about treatment, and whether suicide, homicide and things like that are a possibility. He has made two examinations of the defendant; once on the 14th and once on the 18th of November, 1965, pursuant to court order. Defendant was given the Rorschach Test and the Thematic Apperception Test.

The tests revealed that defendant was a passive dependent character with a severe ego-weakness and potential for psychosis. He could not tell from the testing what sort of psychotic condition would or could exist.

Testimony of Guy Gibson, witness recalled for the State in rebuttal:

He is the same Sergeant Gibson of the Illinois State Police who testified previously. He does not believe that on December 21, 1964, the defendant had a mental disease or defect such that he lacked capacity to appreciate the criminality of his act or to conform his conduct to the law. He bases his opinion on the way defendant answered questions, on the obvious attempt to clean up the scene by wiping the rug and walls, and on his experience with other people who had been adjudged insane. He never had any medical training.

Testimony of Eugene Eccker, witness recalled by the State in rebuttal:

He has an opinion as to whether as a result of mental disease or defects the defendant lacked substantial capacity to appreciate the criminality of his conduct on December 21, 1964. His opinion is that the defendant knew what he was doing all the time. He also believes that defendant could conform his conduct to the requirements of the law. He bases his opinion on defendant’s attempt to destroy physical evidence.

His education is high school equivalency; he did not graduate from any medical school or school of psychology.

Testimony of Alan Taylor, witness recalled by the State in rebuttal:

He never attended any medical school. He has a high school education plus several college courses in criminology. He does not think that the defendant lacked the capacity to conform his conduct to the requirements of the law, nor does he think that the defendant suffered from any mental disease or defect that would make the defendant lack the capacity to appreciate the criminality of his act. He bases his opinion on the defendant’s demeanor, his conversations which were lucid, the fact that defendant attempted to clean up the scene of the crime, and the fact that defendant asked him to get some clean clothes because he knew that his clothes were soiled.

OPINION

(1) Defendant argues that the trial court erred by not giving any instruction to the jury on voluntary manslaughter. It is the rule in homicide cases that if there is evidence in the record which, if believed by the jury, would reduce the crime to voluntary manslaughter, an instruction defining that crime should be given. People v. Jones, 384 111 407, 412, 51 NE2d 543. It is thus necessary to determine whether there is such evidence in the record of the instant case.

Voluntary Manslaughter is defined in the Criminal Code, 111 Rev Stats 1963, c 38, § 9-2, as follows:

(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or . . .
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

Further, there is a long line of case law which states that mere words can never be sufficient provocation to support voluntary manslaughter. People v. Russell, 322 Ill 295, 153 NE 389; People v. Marrow, 403 Ill 69, 85 NE2d 34. However, in the instant case defendant argues that the deceased’s flaunting of her immoral conduct and bragging about having had an abortion struck so severely at the defendant as to excite an intense passion in him. Defendant relies on two cases and also argues that a progressive view of the law leads to the conclusion that words alone can incite the required passion.

The statute requires that the provocation be sufficient to excite passion in a “reasonable man.” Thus any special traits of the particular defendant cannot be considered. The fact that the defendant has certain religious beliefs, that he had some mental disturbance and that he had not psychologically disengaged himself from the marital relationship since the divorce are not relevant on the question of provocation. We do not believe that the words of the deceased constituted sufficient provocation to reduce the crime to voluntary manslaughter, especially since the defendant already knew of the deceased’s immoral conduct and since the defendant was no longer married to the deceased.

The cases relied upon by defendant are distinguishable from the instant case. In People v. Jones, 384 Ill 407, 412, 51 NE2d 543, the defendant (wife of the deceased) encountered her husband with another woman and stabbed her. The evidence was conflicting as to when deceased took out a knife and threatened to kill defendant. The court found that the jury indicated by its verdict that it did not believe that defendant acted solely in self-defense but in the heat of passion and that therefore a manslaughter instruction was proper. We see no similarity to the instant case where only words allegedly caused the provocation. In People v. Stepheny, 76 Ill App2d 131, 221 NE2d 798, defendant was charged with murder. At the trial there was some evidence that after a long quarrel the deceased pulled a gun on the defendant; thus the jury could have believed that the gun coupled with the exchange of words provoked the defendant. In the instant case there was no evidence of any provocation except the words of the deceased, and the trial judge properly refused to instruct the jury on the law of voluntary manslaughter.

(2) Defendant next argues that he was denied his right to fully present his defense of insanity by improper rulings of the court in relation to certain evidence and testimony.

Defendant complains of the trial judge’s refusal to recognize the psychologist Robertson as an expert and the judge’s refusal to allow complete testimony concerning the analysis of psychological tests given to the defendant. The judge did refer to the witness several times as a “lay” witness but it is obvious that he was fearful that the tactics of the defense were to elicit a medical opinion as to sanity at the time of the crime from a nonmedical witness. The defendant acknowledged that he did not intend to question this witness on the ultimate question of the defendant’s sanity, and the witness said, specifically, that his testing could not show what sort of psychotic condition existed. Eventually the witness was permitted to state what tests he gave and the results thereof. Although we do not condone the court’s treatment of this witness, we cannot find that the actions of the judge constituted prejudicial error.

The defendant also complains that the judge did not let him put a proper hypothetical question to his psychiatrist and thereby precluded expert testimony on the main issue of the case. Although it seems that the defense began to frame a hypothetical question he did not finish it, and the defense attorney then specifically stated to the court that he was not attempting to propound a hypothetical question; there was no further attempt to put a hypothetical question to the psychiatrist. We cannot say that the trial judge deprived defendant of the opportunity to so question the psychiatrist.

Defendant argues that the trial judge erred in his refusal to allow the brother of the deceased to testify concerning the nature of the relationship between the defendant and the deceased. The insanity defense was based in part upon the relationship of the deceased and the defendant and the way in which he reacted to her; it is thus very relevant to establish the nature of that relationship. The witness could have properly rendered a layman’s opinion of that relationship based upon his observation of it. However, although it was error to exclude this testimony, we find that the defendant was not prejudiced because he was adequately able through other means to establish the nature of his relationship with the deceased.

Defendant claims that the trial judge was under the mistaken impression that only evidence regarding defendant’s mental state on the date of the crime was relevant. Defendant cites People v. Haun, 71 Ill App2d 262, 268, 217 NE2d 470, where the court held that “ [g] reat latitude is normally afforded the defendant in the admission of evidence as to mental condition.” However, the record shows that the psychologist Robertson did testify as to his tests which were performed eleven months after the stabbing and that Dr. Solon was permitted to testify as to his treatment of defendant which ended thirteen months prior to the stabbing. It is true that due to constant bickering between the trial judge and defendant’s counsel unfortunate comments were made. They resulted primarily from defendant’s counsel’s insistence on pursuing his theories even after the court ruled adversely. He was able, nevertheless, to present to the jury a full picture of the relationship between the defendant and his ex-wife and of the mental state of the defendant both prior to and after the stabbing. The defendant did not introduce any direct evidence that he was insane at the time of the commission of the crime. All of his psychiatric evidence was concerned with defendant’s mental state either some time before or some time after the crucial date, whereas the State was able to introduce testimony of several police officers that defendant seemed sane shortly after the commission of the crime. We thus find that defendant was not prevented by prejudicial errors from presenting his insanity defense.

(3) Defendant next argues that he was denied a fair trial because of the improper rulings of the trial judge and because of the improper remarks and argument of the State’s Attorney. Defendant alleges that the judge acted improperly when Father Grace refused to answer questions relating to conversations between the witness and the defendant. Although the judge did not rule specifically on the pastoral privilege objection, the result of his ruling was that the clergyman did not have to answer those questions. This result was proper since a clergyman cannot be compelled to disclose in any court any “confession or admission made to him in his professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he professes, nor be compelled to divulge any information which has been obtained by him in such professional character or as such spiritual advisor.” Ill Rev Stats 1963, c 51, § 48.1.

At the close of the examination of Dr. Solon, the judge refused to allow in evidence the hospital records of defendant’s fifteen-day stay in the hospital. The exclusion was improper because the doctor used these records to show the mental state of the defendant at that time and such mental state is relevant to the insanity defense. People v. Carpenter, 11 Ill2d 60, 142 NE2d 11. However, the doctor testified in some detail as to defendant’s hospital stay and we do not believe the exclusion of the hospital records was prejudicial.

The defendant also alleges that the judge applied different rules of evidence for the State and the defense. It is alleged that the judge allowed testimony on the ultimate question of defendant’s sanity by some policemen but did not allow the psychologist to testify on that ultimate issue. The judge was correct in his handling of the matter. First, the policemen testified as to their opinion of the defendant’s condition on the night of the homicide based on their observations of the defendant shortly after he killed the deceased. Secondly, Mr. Robertson, the psychologist, did not see defendant until eleven months afterward. The defense never put nor attempted to put to the psychologist any questions concerning the sanity of the defendant on the night of the crime.

Defendant also argues that there were improper remarks by the State’s Attorney which prejudiced defendant. Defendant argues that the State’s Attorney made a prejudicial misstatement of the testimony of the psychiatrist to the effect that the defendant was neurotic when the psychiatrist had actually said that the defendant was a schizoid personality with a paranoid reaction. However, it is well established that the jury is the arbiter of what testimony is given and that unintentional misstatements are not reversible error. Further, the defense did not object to this misstatement. Defendant also alleges that he was prejudiced by the State’s Attorney’s allusions to the burden of proving insanity being on the defendant. There is some language used by the State’s Attorney which could be so construed, but it was never objected to and the trial judge gave the proper instructions on the subject to the jury thereby overcoming any conceivable prejudice.

Defendant’s sole defense was insanity at the time of the commission of the crime. The Criminal Code of 1961 sets out the requirements for the defense of insanity as follows:

(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

We believe that the jury could properly find from the evidence beyond a reasonable doubt that defendant did not have a “mental disease or mental defect” within the meaning of the Act and that the statement of the defendant and the testimony regarding his actions immediately following the stabbing effectively rebutted any claim of insanity at the time of the crime. People v. Miller, 33 Ill2d 439, 211 NE2d 708.

The judgment is affirmed.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.

       The trial commenced on March 1, 1966.

       See Committee Comments to section 6-2 (b) 111 Rev Stats 1961, c 38.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. LaMonte DeGrea (Impleaded), Defendant-Appellant.
    Gen. No. 51,957.
    First District, Third Division.
    March 20, 1969.

      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, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, LaMonte DeGrea, was indicted with Levi Robinson for the crime of armed robbery. Robinson pleaded guilty, DeGrea not guilty. DeGrea waived a jury, was tried by the court, found guilty of robbery and sentenced to the penitentiary for a term of two to five years. He contends that the evidence of his participation in the robbery was insufficient to prove him guilty beyond a reasonable doubt.

Robinson, who received a like sentence, was a witness for DeGrea. They both testified that about 5:30 p. m. on March 21, 1966, DeGrea, accompanied by Robinson, entered a store on Maxwell Street, Chicago, to buy a pair of shoes. After DeGrea selected a pair, Robinson, without the prior knowledge of DeGrea, impulsively pulled a gun from his pocket and told the proprietor that it was a “stickup.” While DeGrea did nothing, Robinson emptied the cash register, ordered the proprietor to the back of the store, had him lie down and struck him over the head with the gun which had been purchased by DeGrea earlier that day. DeGrea then left the store and Eobinson followed soon thereafter. As they crossed Maxwell Street, the proprietor came out the door yelling “robbery.” A police officer, who was on the far side of the street, heard the yelling, confronted them and placed them under arrest. A fully-loaded gun and the store owner’s watch and money were found on Eobinson.

The victim of the robbery told a different story. He testified that DeGrea ordered a pair of shoes without trying them on and, as he was wrapping them up, DeGrea and Eobinson came around the counter. Eobinson put a gun against him and DeGrea pushed him. One of them said, “give me your money.” He opened the cash register and Eobinson emptied it while DeGrea pushed him again. They both told him to go to the back; DeGrea followed him there while Eobinson looked through his papers. Eobinson came to the rear a couple of seconds later and beat him with the gun. He was hit four to seven times on the head. Although he was wet with blood he was not unconscious and when the men left he chased after them, shouting that he had been robbed.

The arresting officer testified that he was directly across the street from the shoe store. He heard shouts of “robbery, robbery” and saw two men coming close to where he was standing; Eobinson was in the lead and DeGrea was behind him. He stopped them just as they emerged from between two merchant stalls on his side of the street, and as he did so the bleeding store owner ran over crying repeatedly, “I have been robbed.” The owner warned him that Eobinson had a gun, so he swung the men around and searched them. He said he questioned them at the police station and that DeGrea as well as Eobinson admitted the robbery.

An investigating officer also talked to them at the station. He testified that he asked DeGrea whether they had held up the shoe store and DeGrea said they had, but that it was Robinson’s idea. DeGrea said that he was sorry that the owner of the store had been beaten.

The State’s evidence, if believed by the trier of the facts, was more than sufficient to prove that De Grea was an active participant in the robbery. This evidence showed that his negotiations to purchase a pair of shoes was but a ruse and that he and Robinson shared a common design to rob the storekeeper. He was not an innocent bystander taken by surprise nor was he a mere accessory. He was a principal whose affirmative acts aided Robinson in the perpetration of the crime.

The very minor testimonial discrepancies of the store owner did not destroy his credibility, as the defendant argues, but only went to the weight of his testimony. People v. Cooper, 69 Ill App2d 18, 216 NE2d 168 (1966). In a nonjury trial the weight and credence to be given a witness’s testimony is for the trial court’s determination. Where the guilt or innocence of a defendant depends upon the credibility of conflicting testimony, the factual conclusions of the court will not be disturbed on review. People v. Vail, 74 Ill App2d 308, 221 NE2d 165 (1966); People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965).

The judgment of conviction is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald Uselding, Defendant-Appellant.
    Gen. No. 52,719.
    First District, Third Division.
    March 20, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald T. Rohrer, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Donald Uselding, was convicted in a jury trial of attempt robbery and sentenced to a term of from two to four years in the penitentiary.

At approximately 9:00 p. m., in January 1967, the complaining witness, Jesse Cummings, left a grocery store on Belmont Avenue in Chicago carrying a bag of groceries and walked toward his car which was parked in front of a restaurant about a block east and across the street. Between the grocery store and the car were elevated tracks crossing Belmont Avenue.

Cummings testified that as he passed under the elevated tracks he observed Uselding, whom he did not know, standing on the curb swinging a piece of metal in his hand. Uselding yelled, “Stop, or I’ll hit you with this,” and asked him for some money and grabbed his shoulder. Cummings broke away, walked across the street to his car and started to unlock the door. Uselding followed him and pushed him up against the car, smashing the groceries. Uselding said, “Give me four dollars or I’ll bash your brains out,” and said that Cummings owed him four dollars for a window fan. Cummings called to a squad car which had pulled up nearby and started towards the car. The officers got out of the car and placed Uselding under arrest as he walked over to the car.

One of the arresting officers corroborated Cummings’ testimony. He said he and his partner approached Belmont from the north on Wilton Street and saw the two men pressed against each other, apparently engaged in an argument. Cummings raised his hand and cried out, “Hey.” As the officer got out of his car, Uselding stepped back from Cummings, dropped an object beneath Cummings’ car and yelled profanities as the officer approached them. After arresting Uselding the officer recovered a piece of metal from under Cummings’ car and saw on the hood of the car a grocery bag containing broken eggs and a crushed milk carton.

Uselding admitted arguing with Cummings, but denied having a piece of metal in his hand, striking Cummings or threatening him. He testified that Cummings owed him five dollars for a window fan purchased three or four or five years earlier, when Cummings lived on Eugenie Street in Chicago. He said that Cummings had a 1958 Ford automobile at that time. (On rebuttal Cummings stated that he had lived for a year on Eugenie Street nine years before the trial and had owned a 1958 Ford, but he denied ever buying a fan or anything else from Uselding.) Uselding testified that he was “high” because he had been drinking beer earlier in the evening. He was in the restaurant in front of which Cummings’ car was parked and recognized him as he approached his car. He went outside and asked Cummings if he remembered him. Cummings did not and an argument ensued until the police arrived.

Two witnesses for the defense testified that they were in the restaurant before the fracas. Uselding went outside and met Cummings there. They observed the two engaged in a loud argument in front of the restaurant until the police arrived, but did not see a piece of metal in Uselding’s hand.

The only contention of the defendant is that the State did not prove beyond a reasonable doubt that he had the specific intent to commit the crime of robbery.

Section 18-1 of the Criminal Code of 1961 (111 Rev Stats, c 38, § 18-1 (1965)) defines robbery as follows: “A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force,” and section 8-4 (a) of the same Code (111 Rev Stats, c 38, § 8-4 (a) (1965)) provides: “A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”

The burden is on the prosecution to prove beyond a reasonable doubt the essential elements of the crime. The crime of attempt robbery does not involve a completed act, but evidence must show a substantial step taken toward the taking of property from the person or presence of another by the use of force or the threat of imminent use of force, and the intent to that end. People v. Hawkins, 54 Ill App2d 212, 203 NE2d 761 (1964).

Intent is defined in section 4r-4 of the Criminal Code (Ill Rev Stats, c 38, §4-4 (1965)) as follows: “A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” Intent is a state of mind; it cannot be implied as a matter of law (People v. Perry, 23 Ill2d 147, 177 NE2d 323 (1961)) but can be inferred from the words and actions of the defendant and other surrounding circumstances. People v. Moore, 77 Ill App2d 62, 222 NE2d 142 (1966).

The testimony of Cummings established the defendant’s intent. Uselding accosted him under the elevated tracks, brandished a piece of metal, demanded money and grabbed his shoulder. After he jerked loose, Uselding followed him across the street, pushed him against his car, squashed a milk carton and eggs, and threatened to bash his brains out if he did not given him four dollars. This was no mere request for payment of a debt. The defendant made known his purpose of taking money and backed up his demand by force and the threat of greater force.

The defendant argues that because he was attempting to collect a debt, did not demand all of Cummings’ money, argued with him for several minutes and did not flee from the police, intent to rob was not present. The argument proceeds from the false premise that use of force to collect a debt is lawful. The law does not permit such self-help. Robbery is as defined, and had the defendant obtained money, either by Cummings giving money to him after the use and threat of force, or by forcibly snatching money from the person of Cummings, he would have committed robbery.

The question of intent is for the jury. The testimony of one witness is sufficient to support a conviction if it is positive and the witness credible. People v. Johnson, 24 Ill2d 195, 181 NE2d 164 (1962). The jury must determine the credibility of witnesses and the weight to be accorded to their testimony, and its judgment will not be disturbed unless based on clearly unsatisfactory evidence which leaves a reasonable doubt of the defendant’s guilt. People v. Thomas, 409 Ill 478, 100 NE2d 588 (1951). The complainant’s testimony was credible and was corroborated by the crushed groceries and the testimony of the arresting officer that the defendant was pressing him against the car and threw a piece of metal under the car. This was sufficient to support the verdict of guilty.

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.