author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul De Mario, Defendant-Appellant.
    Gen. No. 53,005.
    First District, Fourth Division.
    June 25, 1969.

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

delivered the opinion of the court.

In a prior proceeding defendant had been found guilty of robbery and murder and sentenced to terms of 10 to 20 and 15 to 30 years. We affirmed those convictions in an opinion filed today. People v. De Mario, 112 Ill App2d 175, 251 NE2d 267. Meanwhile, under section 72 of the Civil Practice Act, defendant filed, in the trial court, a petition seeking a new trial. Ill Rev Stats (1967), c 110, § 72. At a hearing on the petition, a witness at the trial, admitting that she had lied under oath to the jury, recanted her earlier testimony which had been damaging to the defendant. Defendant’s petition was denied.

POINTS RAISED ON APPEAL

(1) The court erred in denying a new trial.

(2) State action deprived defendant of a fair trial.

EVIDENCE

Sharon Smith Cramer, for defendant

We will not repeat here the testimony of this witness at the earlier trial, but make reference to our opinion in People v. De Mario, 112 Ill App2d 175, 251 NE2d 267. At the hearing on this petition she declared that all the basic parts of her testimony at the trial had been untrue. She said that she was going to tell the truth at the time but that she was nervous and scared because Officer Mahoney told her she had better not change her story, and he kept giving her “dirty looks” while she was testifying. On cross-examination, she admitted that she had never told anyone that her testimony had been untrue until almost two years after the trial when defense counsel informed her that the case was going to be appealed.

On further direct examination, she stated that Officer Mahoney, sometime shortly after the incident, had placed her under arrest and this caused her to become upset on account of her baby. Then he drove her and Candy Bergman, another State witness at the trial, to view the scene of the crime, and eventually told her to sign an untrue statement in order to avoid going to jail herself. She was not in the car with defendant that afternoon, and would have told the truth at his trial but for the presence of Officer Mahoney in the courtroom. On cross-examination, she conceded that hey testimony at defendant’s trial was the same she had given at the earlier trial of his co-indictee, Guy Ramirez. Officer Mahoney had been present then also.

John Mahoney, for the State

He was assigned as a homicide detective to the case that involved John Baird’s death. He remembered questioning Sharon Smith Cramer after Ramirez and defendant had been taken into custody, but he doubted that he told her she was under arrest for murder. Neither Cramer nor Bergman was ever arrested or charged. After driving them to the scene to refresh their memories, he took statements from both of them. At first Cramer said she didn’t know anything, but Bergman said to her, “Yes, you do.” Then “the story came out.” There was no threat of coercion exerted upon the girls either at this point or later at trial. In fact, before this defendant’s trial, Cramer had testified to substantially the same evidence at the Ramirez trial. He (Mahoney) was not in the courtroom at that time, there having been a rule excluding witnesses. He testified at the Ramirez trial but not at this defendant’s trial.

On cross-examination, he testified that he may have told Cramer the date when the crime was supposed to have occurred, and it was possible that he said to Bergman and Cramer, “You girls were there, weren’t you?” but he didn’t remember it.

Robert Cody, for the State

He is a detective who worked with Detective Mahoney on this case and was present when Sharon Cramer was first picked up for questioning. Her name had been given to them by Candace Bergman. He didn’t hear Mahoney, nor did he, himself, make any threats or coerce either of the girls in any way at any time.

Kenneth L. Gillis, for the State

An Assistant State’s Attorney in October, 1965, he had occasion to talk with Sharon Smith just before the Ramirez trial concerning the facts of the case. Her recollection corresponded to the facts as they were recorded in the file, and she supplied some details which were not in the file. He talked to her again shortly before defendant’s trial. She did not show any hesitancy or apparent nervousness ; during the trial she seemed to testify truthfully and was no more nervous than any witness. Her testimony was lucid and clear and not hesitant. She did not complain of any police mistreatment. After the trial she phoned him for legal suggestions as to the custody of her baby. At no time did she tell him or indicate in any way that she had testified falsely. Detective Mahoney was present at the counsel table during defendant’s trial but did not testify. Sharon Cramer’s memory concerning occurrences on the day of the crime was lucid, although he recalled that there had been some partial impeachment of her testimony concerning details of the circumstances under which her statement at the police station had been made.

OPINION

(1) The defendant alleges that the court erred in denying a new trial under section 72. In order for a judgment to be disturbed on the basis of perjured testimony, it “must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been wilfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result.” People v. Lewis, 22 Ill2d 68, at 71, 174 NE2d 197. After the hearing on defendant’s petition, the trial judge, who was the same one who presided over defendant’s jury trial, stated that he believed that Sharon Cramer had lied in her recantation after telling the truth at the trial, and that he believed the testimony of the police officers. As in other proceedings, the credibility of the witnesses at a section 72 hearing is a matter primarily for the trial court, and we find in this record no basis for disturbing its conclusion. On that ground, therefore, the attempted proof of wilful falsity fails to meet the requirement of People v. Lewis, supra. The mere recantation of prior testimony is not even sufficient proof in itself to establish that the earlier testimony was perjured. Cobb v. United States, 161 F2d 814.

Secondly, we find that Sharon Cramer’s testimony at the trial was not so material as to create the probability that it controlled the result. We think, rather, that it was merely cumulative of Candace Bergman’s testimony and was not needed to establish defendant’s guilt beyond a reasonable doubt. In addition, there was much other corroborative evidence to support the Bergman evidence.

(2) Defendant also contends that State action deprived him of a fair trial. He bases this claim on allegations of “pressure” by police detectives and failure to disclose to the defense that, during his interrogation of Sharon Cramer, Officer Mahoney had informed the witness of the dates of the incident. Defendant relies chiefly upon Barbee v. Warden, 331 F2d 842, 846. That case involved the withholding by the police of important exculpatory evidence, and is easily distinguishable from the case before us. We do not believe that the testimony, which we have summarized above, established the existence of the kind of police “pressure” which defendant asserts will require the granting of a new trial. Police detention and questioning of witnesses, when properly performed, as in this case, are justifiable and reasonable techniques of criminal investigation and “indispensable in law enforcement.” People v. Hall, 413 Ill 615, 624, 110 NE2d 249. Furthermore, all of the facts which defendant argues in this regard were presented to the jury, by stipulation or otherwise, in the original trial.

DECISION

The judgment of the Circuit Court denying defendant’s petition for a new trial is affirmed.

Affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ivory Marshall, and Samuel Porter (Impleaded), Defendants-Appellants.
    Gen. Nos. 52,616, 52,617. (Consolidated.)
    First District, Third Division.
    June 26, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellants.
    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. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Ivory Marshall, Samuel Porter, and Joe Hollins were indicted for the crime of burglary. The three defendants entered pleas of not guilty and waived trial by jury. The trial court found defendant Hollins not guilty and found defendants Porter and Marshall guilty of burglary and sentenced each of them to a term of from two to seven years in the Illinois State Penitentiary. The defendants Samuel Porter and Ivory Marshall prosecute the instant appeal.

The defendants contend that 1) they were erroneously denied their demand for the production of a purported statement of the complaining witness for purposes of possible impeachment and 2) the trial court erred in refusing to grant the defendants a “plea-bargaining” conference during the trial at the close of the State’s case.

The arresting police officers, Henry Ciolli and William Ziegler, testified for the prosecution that at about 2:25 a. m. on February 17, 1967, they were cruising in their patrol car in the vicinity of Washington and Halsted Streets when they observed the three defendants talking on a street corner. Several minutes later, they were cruising on the south side of Washington Street when they saw Joe Hollins in front of 802 West Washington Street. Hollins was “continually turning around looking about.” As the police approached that address they saw the defendant Porter followed by the defendant Marshall emerge from a broken glass door at 802 West Washington. Upon seeing the police, all three men ran and all three were stopped within a block of 802 West Washington. Marshall was carrying an adding machine when apprehended and a search of Porter revealed that he was wearing a green button-down sweater under his coat and had a quantity of pens and pencils in his back pocket.

John Kenny testified that he was the president of Kenny Bros., Inc., an Illinois corporation located at 802 West Washington Street in Chicago. He testified that the adding machine, sweater, and pens and pencils found on the two defendants were the property of the corporation. When he arrived at his place of business on the morning of February 17, 1967, he discovered that the front door had been broken and that some of the furniture was in disarray.

Each of the three defendants testified on his own behalf. Each denied any participation in the burglary and each denied knowing the other two defendants.

During the cross-examination of John Kenny and after the State had given defense counsel a copy of the witness’s testimony before the Grand Jury, defense counsel asked the witness if he had occasion to talk to a secretary in the State’s Attorney’s office. Kenny responded:

“After the hearing before the Grand Jury, I remember sitting with one of the officers at which time a lady did take a statement. And, as to what was said at that time or what statement I made, I don’t remember. It’s been six or eight months ago.”

The witness further stated that he did not remember whether the lady had read the statement back to him. At this time the defendant moved for a production of this statement whereupon the State’s Attorney informed the court that the statement being referred to was merely a “summary sheet.” The court then ruled that the defendants were not entitled to such a statement.

The trial judge denied the production of the requested statement solely upon the State’s representation to him in an adversary proceeding that what was sought was merely a summary sheet prepared by the State’s Attorney’s office. It might have been a most accurate description of the statement but the trial judge erred in not initially inspecting the sought after “summary sheet.” The State argues in its brief that a “summary sheet” need not be produced under the decisions of People v. Moses, 11 Ill2d 84, 142 NE2d 1; People v. Wolff, 19 M2d 318, 167 NE2d 197; and People v. Neiman, 30 Ill2d 393, 197 NE2d 8, since it is merely a rough summation of the witness’ words and is not a statement which is in the witness’ “own words or substantially verbatim.” (See: People v. Neiman, supra, at page 397.) The State premises such an argument on the assumption that this summary sheet was, as its designation implies, a mere synopsis or summation of the witness’ statements to the stenographer. In view of the fact that the trial judge never viewed the purported summary sheet and in view of the fact that the statement does not appear in the record before us, we find it impossible to blindly accept such a premise. Likewise, the trial judge could not and did not ascertain whether the statement should have been produced to the defendant under the Moses-Wolff line of authority. When an accused for impeachment purposes demands production of a witness’ statement in the possession of the People and when the prosecution claims that the statement is privileged, irrelevant, or incompetent, the trial court is to examine the statement to determine if such claims are justified. People v. Williams, 72 Ill App2d 96, 218 NE2d 771; People v. Beard, 67 Ill App2d 83, 214 NE2d 577.

However upon a review of the entire record, we fail to see how the aforementioned error prejudiced the defendants so as to require a reversal of these judgments even if an inspection of the statement proved it to be properly producible to the defendants under the Moses-Wolff rules. In People v. Wolff, supra, the Supreme Court, after indicating that the defendant was improperly restricted in his attempts to obtain documents held by the prosecution for the purpose of possible impeachment of a State’s witness, held that the refusal to let the defendant see the statement of one witness did not constitute reversible error where upon all the evidence, his guilt was established beyond a reasonable doubt and the jury could not have reached a different verdict. (See also: People v. Williams, 105 Ill App2d 25, 245 NE2d 17.) Likewise in the instant case, we fail to see how the production of Kenny’s statement, even if properly producible, could have affected the instant finding. Kenny’s testimony simply established the formal elements of the corporate ownership of the burglarized premises and the ownership of the items found in the possession of Marshall and Porter. There is no indication from the record that such ownership was at any time questioned by the defendants. It is undisputed that the defendants were furnished with Kenny’s testimony before the Grand Jury and that this testimony was not used for impeachment purposes. Furthermore, the testimony of the police officers established that the premises at 802 West Washington Street were broken into, that they saw the defendants Marshall and Porter emerge from this building, and that they possessed the stolen items when arrested. This evidence prompts us to conclude that the undue restrictions on the defendants’ discovery attempts could not have affected the finding of guilty as to these two defendants.

The defendants also assert as error the trial court’s refusal to grant them a “plea-bargaining” conference at the close of the State’s case. Counsel for the defendant Hollins refused to join in this request and objected to such a conference as possibly prejudicing the case of his client. The court then denied the request. The defendants characterize such a denial as an effective denial of their right to plead guilty and a violation of the equal protection clause of the Fourteenth Amendment. The record does not disclose that the defendants were at any time denied an opportunity to change their pleas to guilty. They were simply denied the right to enter into a conference for the ostensible purpose of plea bargaining in hopes of being found guilty of a lesser offense. We have not been directed to any authority which gives an accused at trial a constitutional, statutory, or other lawful right to bargain for a conviction for a lesser offense and we therefore find no merit to this contention advanced by the defendants.

For the foregoing reasons, the judgments are affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Ella Mae Hunter, Plaintiff-Appellant, v. William Alfina and Alberta Alfina, Defendants-Appellees.
    Gen. No. 52,620.
    First District, Third Division.
    June 26, 1969.
    Pekin & Levin, and Pressman & Hartunian, of Chicago (Aram A. Hartunian, of counsel), for appellant.
    Berchem, Schwantes & Thuma, of Chicago, for appel-lees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff seeks to recover for personal injuries sustained in defendants’ home when one of their kitchen chairs collapsed beneath her. At the conclusion of plaintiff’s evidence and a stipulation as to defendants’ testimony the court directed a verdict and entered judgment for defendants. The sole issue on appeal is whether the doctrine of res ipsa loquitur is applicable to this case. The facts follow.

On December 1, 1959, plaintiff was employed by the defendants as a domestic servant in their home. She had been so employed one day a week for six or seven weeks pursuant to an agreement whereby she received $10 a day, carfare and lunch. At the time of her employment she was approximately fifty years old, 5' 2" tall and weighed about 160 pounds.

On the day in question Mrs. Alfina told plaintiff that she was going out and asked her if she would eat with the children at lunch time. Plaintiff accordingly sat with the children at the kitchen table. The chair on which she sat was one of a set of four kitchen chairs which had been purchased seven years prior to the date in question. Plaintiff left the table to get a banana and when she resumed her seat, the chair collapsed and fell to the floor. The chair was wooden and had four legs and a back. Plaintiff testified that she did not notice anything unusual about the chair before the accident, that she did nothing unusual when she sat down on it, and that she had not been cautioned by anyone about using any of the chairs.

It was stipulated that the defendants, if called, would testify that the chair was purchased seven years prior to the date of the accident as one of a set of four, that they were subject to no more than ordinary wear, that at no time prior to the accident did either of the defendants have knowledge of any defect and that from all appearances, the chair in question was in good serviceable condition at all times prior to the accident. On the basis of this evidence the trial court directed a verdict for defendants and entered judgment thereon.

Plaintiff relies solely on the doctrine of res ipsa loqui-tur and contends that in ordinary use the chair on which she sat should not have collapsed and that the collapse raised an inference of negligence on the part of defendants who owned the chair and provided it for plaintiff on the occasion in question.

The case of Metz v. Central Elinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305 (1965) has set forth the conditions which must be established for application of the doctrine of res ipsa loquitur as follows:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. (Feldman v. Chicago Railways Co., 289 Ill 25; Bollenbach v. Bloomenthal, 341 Ill 539.)”

The latter condition recognizes that there are injuries which may occur without fault on the part of anyone and it is only where the incident itself suggests negligence that the doctrine may be applied. Erckman v. Northern Elinois Gas Co., 61 Ill App2d 137, 210 NE2d 42; Wigmore on Evidence (1st Ed, 1905, §2509). Res ipsa loquitur cannot be applied where the condition causing injury can be accounted for as readily on the hypothesis of pure accident as on the ground of negligence. Bollenbach v. Bloomenthal, 341 Ill 539, 173 NE 670; Chicago & Eastern Illinois R. Co. v. Reilly, 212 Ill 506, 72 NE 454.

The effect of the doctrine is that once the evidence establishes that the foregoing conditions exist and there is proof of injury, there is a permissive inference of the defendant’s negligence. Erckman v. Northern Illinois Gas Co., supra; Metz v. Central Illinois Electric & Gas Co., supra. In such a case a motion for a directed verdict at the close of plaintiff’s case should be denied. Erckman v. Northern Illinois Gas Co., supra. When evidence appears to the contrary, the inference of negligence does not vanish, but “remains to be considered with the other evidence in the case and must be weighed by the jury against the direct evidence offered by the party charged.” Metz v. Central Illinois Electric & Gas Co., supra.

In cases involving the collapse of a seating device in a business establishment many jurisdictions have held that the doctrine of res ipsa loquitur is applicable. Among them are the following: Nownes v. Hillside Lounge, Inc., 179 Neb 157, 137 NW2d 361 (1965); Keena v. Scales, 61 Cal2d 779, 40 Cal Rptr 65, 394 P2d 809 (1964); Raffa v. Central School Dist. No. 1, 16 App Div2d 85, 227 NYS 2d 723 (1962); Tuso v. Markey, 61 NM 77, 294 P2d 1102 (1956); Van Staveren v. F. W. Woolworth Co., 29 NJ Super 197, 102 A2d 59 (1954); Benedict v. Eppley Hotel Co., 159 Neb 23, 65 NW2d 224 (1954); Schueler v. Good Friend North Carolina Corp., 231 NC 416, 57 SE2d 324 (1950); Gow v. Multnomah Motel, Inc., 191 Ore 45, 224 P2d 552, 228 P2d 791 (1950); Herries v. Bond Stores, Inc., 231 Mo App 1053, 84 SW2d 153 (1935). Contra: Kilgore v. Shepard Co., 52 RI 151, 158 A 720 (1932); Rose v. McMahon, 10 Mich App 104, 158 NW2d 791 (1968); Leonard v. Baker’s Shoe Store, Inc., 261 NC 781, 136 SE2d 102 (1964); Williams v. McCrory’s Stores Corp., 203 Md 598, 102 A2d 253 (1954). In each of the foregoing cases the plaintiff was a customer or a patron of the defendant’s business establishment, which included stores, lunch counters, bars, a theater and a school cafeteria.

The only Illinois case on this subject involving the collapse of a chair is Robinson v. Peoples Gas Light & Coke Co., 327 Ill App 412, 64 NE2d 555. There the plaintiff had agreed to buy a refrigerator from the defendant and was invited by the defendant’s salesman to sit on a folding chair while the sale was written up. The chair collapsed and the plaintiff fell to the floor. The head of a rivet had come out of a slot on the side of the chair, but the rivet was not broken nor was the slot worn. The court held that the doctrine of res ipsa loquitur applied.

The facts in the instant case are quite different from those in Robinson, supra. In Robinson the chair was in a business establishment for the use of customers, whereas in the instant case the chair was in a private home. In both instances the plaintiffs were business invitees so that the law required the defendants to exercise “ordinary care” for their safety, but the requirements of “ordinary care” vary with the circumstances of each case. Sims v. Chicago Transit Authority, 4 Ill2d 60, 122 NE2d 221; Baggett v. Ashland Oil & Refining Co., 92 Ill App2d 433, 236 NE2d 243. The care required .of the owner of a private home clearly is less than that required in a business establishment. The proprietor of a business establishment knows that its chairs will be subject to a variety of frequent and debilitating uses and he is required to take appropriate precautions for the safety of customers. It is not reasonable however to exact the same precautions in a private home. It cannot be expected that the home owner will make an inspection of his chairs, tables or other items of furniture before having anyone enter his home. A type of “neurosis domicilia” could develop and we may visualize signs in homes reading, “Enter at your own risk,” or “Examine each chair.” We are today the most litigious people on earth, if not in all history, and we have not learned what to do about it. We may at least proceed with caution in opening up new fields.

It is our conclusion that the trial court properly refused to apply the doctrine of res ipsa loquitur and the judgment is accordingly affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE BURKE

text:
    Anka Miyatovich, Plaintiff-Appellee, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,591.
    First District, Second Division.
    June 24, 1969.

      George J. Schaller, O. E. Hamlink and Paul Denvir, of Chicago, for appellant.
    Hickey, Gustafson & Peterson, of Chicago (Eduard Wolfe, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a collision between the automobile in which she was riding as a passenger and a bus owned by the defendant. The jury returned a verdict in favor of plaintiff in the amount of $8,000 and judgment was entered thereon. Defendant prosecutes this appeal, contending that the trial court erred in the admission of hearsay evidence and in the giving and refusing of certain instructions, and that plaintiff’s counsel was permitted to make improper comments during his opening statement to the jury.

The mishap occurred at the intersection of 95th Street and Jeffery Boulevard in Chicago. Traffic at the intersection is controlled by traffic control lights. The automobile in which plaintiff was riding was owned and being operated by her husband, Papando Miyatovich, and was proceeding westerly on 95th Street approaching the intersection. The defendant’s bus, operated by John Jordan, was proceeding in a northerly direction along Jeffery Boulevard approaching the intersection.

Plaintiff and her husband testified that, as their vehicle approached the intersection, the light controlling traffic on westbound 95th Street was red and their vehicle was brought to a stop at the intersection. When the light changed to green, the Miyatovich vehicle proceeded into the intersection and was struck in the front portion of the left side by the bus.

The bus driver, John Jordan, testified that he stopped the bus at the intersection for a red light controlling the northbound Jeffery Boulevard traffic and allowed a passenger to board the bus. The light thereafter turned green, the bus proceeded into the intersection, and the collision occurred.

Chicago Police Officer James Conway testified that he investigated the accident and further testified, over objection of the defendant, that he took a statement from a woman named Dorothy Cummings who allegedly witnessed the accident. The officer was permitted to testify over objection that he was told by Dorothy Cummings that she had been traveling in her automobile along 95th Street and had stopped for the red light at the intersection behind the Miyatovich vehicle. The officer was also permitted to testify that Dorothy Cummings stated that after the light turned green, the Miyatovich vehicle proceeded into the intersection and was struck by the bus. The officer stated that the Cummings statement was made in the presence of the bus driver and, when asked what the driver said in response to the statement, the officer replied, “Off hand (sic), I cannot remember what the driver said.” When the bus driver was asked by defense counsel if he attempted to deny the Cummings statement at the time it was allegedly given to Officer Conway, an objection to the question was sustained by the trial court.

Dorothy Cummings did not testify at trial. A private investigator and a skip tracer were called by plaintiff and testified that they attempted to locate Dorothy Cummings for trial but to no avail. They stated that she had left no forwarding address, and also that she and her husband went under a number of names.

Marshall Millman, called by the defendant, testified that he was a passenger on the bus and that at the time of the collision he had been reading a book. He testified that he looked up from the book after the accident and observed that the traffic light for the northbound and southbound Jeffery Boulevard traffic was green. The Reverend Lewis King testified that he had been driving south on Jeffery approaching 95th Street, had stopped his vehicle at the intersection and was waiting to execute a left-hand turn onto eastbound 95th Street when the collision between the Miyatovich vehicle and the bus occurred. The witness stated that the traffic lights for the northbound and southbound Jeffery traffic were green at the time of the mishap.

Defendant first maintains that the trial court was in error in admitting into evidence the testimony of Officer Conway as to what Dorothy Cummings allegedly told him at the scene of the accident. We are in agreement that the testimony was hearsay and inadmissible as evidence. (See McCormick on Evidence, § 225.) Dorothy Cummings was not called as a witness in the proceedings and consequently defendant had no opportunity to cross-examine her. Plaintiff claimed that defendant was liable because its bus driver went through a red light; defendant, on the other hand, contended that liability rested with the driver of the Miyatovich vehicle inasmuch as he went through a red light. The evidence on the issue of liability was close and under the circumstances, it was error to have allowed the officer’s testimony in this regard.

Plaintiff’s assertion that the officer’s testimony was admissible under the “admission by silence” exception to the hearsay rule is unavailing. Plaintiff argues that the silence on the part of the bus driver, in the face of Cummings’ alleged statement to the officer in the driver’s presence that the driver went through a red light, constituted an admission by silence. However, the only direct evidence of the bus driver’s reaction to the Cummings statement was the officer’s testimony that he could not recall what the driver said in response to the Cummings statement. Plaintiff desires to take advantage of the exception to the hearsay rule, yet failed to present evidence of the driver’s silence and did not make out a case for the application of the exception to the hearsay rule. (See 31A CJS, Evidence, § 294, p 754; § 296, p 760.)

Plaintiff suggests that defense counsel “tacitly admitted” that the bus driver remained silent when the trial court and defense counsel were engaged in a discussion in chambers concerning the admissibility of the officer’s testimony regarding the Cummings’ statement. This assertion finds no support in the record. Defense counsel was arguing the general circumstances under which a bus driver might be required to remain silent or to deny such a statement and interrupt a police officer’s investigation, as well as what defense counsel personally would do under similar circumstances, but at no time did he admit the silence of the bus driver, John Jordan.

During the opening statement to the jury, plaintiff’s counsel stated that the bus driver appeared in traffic court and pleaded guilty to a traffic citation issued to him as a result of the accident in question. Defendant contends that the trial court should have sustained its objection to this statement inasmuch as the traffic violation against the bus driver was dismissed for want of prosecution. While we are in agreement with plaintiff’s position that a plea of guilty to a traffic violation is admissible as an admission against interest, (Brichacek v. Hampton, 54 Ill App2d 284, 297, 203 NE2d 737) the remark made by plaintiff’s counsel in this regard was improper because the action against the bus driver had been dismissed for want of prosecution and he did not in fact plead guilty to the traffic charge. Plaintiff’s offer of proof, ultimately refused by the trial court, that the bus driver would have pleaded guilty to the charge had not the Miyatoviches agreed not to prosecute the traffic violation does not alter the fact that counsel made a misstatement of fact to the jury. It should also be noted that since the driver did not plead guilty to the traffic charge, plaintiff should not have been permitted to introduce evidence with regard to the driver’s arrest for the traffic violation, since evidence of an arrest is inadmissible. See Allen v. Yancy, 57 Ill App2d 50, 59, 206 NE2d 452. All evidence relating to the traffic court appearance similarly should not have been allowed.

Defendant finally contends that the trial court erred in giving Plaintiff’s Instruction #5, and in refusing Defendant’s Instruction #9. Plaintiff’s Instruction #5, which is IPI 12.04, reads as follows:

“More than one person may be to blame for causing injury. If you believe that the defendant was negligent and that his negligence caused injuries to the plaintiff, it is not a defense that some third person may also have been to blame.”

Defendant’s Instruction #9, which is IPI 12.04 [Revised] , reads as follows:

“More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
“[However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]”

The Supreme Court Committee on jury instructions, through IPI 12.04 [Revised], created a completely new instruction on “Concurrent Negligence Other Than Defendant’s,” which supersedes IPI 12.04. Two significant changes were made. First, the language in the first paragraph of the instruction was corrected to make clear to the jury that only when the jury finds that the defendant’s negligence was a proximate cause of the plaintiff’s injury may it disregard the defense that some third person, who is not a party to the action, may have also been to blame. Without the benefit of accurate wording to this effect, the jury might cease its inquiry after finding a defendant’s negligence to have been simply a cause of the injury, without considering whether it was a proximate cause thereof. (See generally Schmidt v. Anderson, 301 Ill App 28, 21 NE2d 825.)

Secondly, in order to correct any negative implications arising from the first paragraph of the instruction and to insure that the jury is properly instructed in cases where the negligence of some third person (such as plaintiff’s husband here) is presented as a defense, the second paragraph was added to emphasize that the jury must find for the defendant where they find that the conduct of that third person was the sole proximate cause of the injury.

Supreme Court Rule 239(a) provides that an IPI instruction shall be employed where it is applicable to a case and where, after considering the facts and the prevailing law, the court determines that the jury should be instructed on the subject. IPI 12.04 [Revised] accurately states the law and is applicable to the facts in the case at bar: a defense raised by the defendant herein was that plaintiff’s husband, a third person not a party to the suit and who was not acting as agent for plaintiff, was the sole proximate cause of the accident for the reason that he went through the red light. Defendant’s Instruction #9 should have been given to the jury, and Plaintiff’s Instruction #5 should have been refused.

For these reasons the judgment is reversed and the cause is remanded for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded.

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


text:
    Stanley Golminas, Plaintiff-Appellee, v. Fred Teitelbaum Construction Company, a Corporation, Defendant, and The Patent Scaffolding Co., Inc., a Corporation, Royal Continental & Sons, Inc., a Corporation, Defendants-Third-Party Plaintiffs, v. Main Electric Company, Inc., Third-Party Defendant-Appellant. People of the State of Illinois, Petitioner-Appellee, v. Leonel I. Hatch, Jr., Attorney, Respondent-Appellant.
    Gen. No. 53,642.
    First District, Third Division.
    June 26, 1969.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann, Leonel I. Hatch, Jr. and Karl M. Tippet, of counsel), for appellant.
    William J. Harte and Roger J. Boylan, of Chicago (Roger J. Boylan, William J. Harte, Howard S. Chapman, John J. Kennelly and A. L. Cronin, of counsel), for ap-pellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal by third-party defendant Main Electric Company, Inc. and its attorney, Leonel I. Hatch, Jr., from an order of the Circuit Court holding Leonel I. Hatch, Jr. in contempt of court and assessing a fine of $50 for his refusal to comply with the court’s order to produce statements made by four employees of Main Electric. The initial appeal was taken to the Supreme Court, and the Supreme Court transferred the case to this court after finding that it had no jurisdiction to entertain the direct appeal.

The plaintiff, Stanley Golminas, filed suit seeking damages for injuries allegedly occasioned by the defendants’ willful violations of the Illinois Structural Work Act. Three of the defendants brought a third-party action against Main Electric. During pretrial discovery the plaintiff and other parties moved for the third-party defendant’s production of statements taken from witnesses to the occurrence. The motion judge ordered Main Electric by its attorney, Leonel I. Hatch, to produce statements of four of its employees but excused the third-party defendant from producing the statements of those persons who were “officers, directors, managing agents, or foremen” of Main Electric. In his affidavit Hatch admitted that these four employees were not officers, directors, managing agents, or foremen of Main Electric but he refused to produce their statements. The record is totally silent as to the employment status and duties of these four employees and does not disclose their connection, if any, with the occurrence.

The sole issue before this court is whether the statements of these employees of the corporate third-party defendant were privileged communications under Supreme Court Rule 201 (b) (2). During the pretrial proceedings Main Electric had argued that these statements were part of the attorney’s “work product.” This contention has been abandoned on appeal, and it is now contended that the order requiring production was erroneous because the statements demanded were within the scope of the attorney-client privilege and because the production of such statements would deprive the corporate third-party defendant of equal protection of the laws under the Illinois and United States Constitutions.

Difficulties arise in an attempt to delineate the permissible breadth of the attorney-client privilege when applied to a corporate client. The acknowledged purpose of the privilege is to encourage and to enable free and full disclosure by the client to his attorney of matters relevant to the giving of legal advice, and today it is well settled that the privilege can be invoked by a corporate client. (Radiant Burners, Inc. v. American Gas Ass’n, 320 F2d 314; Day v. Illinois Power Co., 50 Ill App2d 52, 199 NE2d 802.) But when an employee of the corporation communicates facts to a lawyer retained by the corporation relative to pending or potential litigation the question arises: Was this employee speaking for the corporation when he made the communications ? In view of the size of the modern corporation, its often intricate and overlapping chain of command, and the myriad of employees of varying rank and designations, an answer to this inquiry is conceptually challenging. The problem of the confidentiality of communications in the corporate chain of command confronted Judge Kirkpatrick in City of Philadelphia v. Westinghouse Elec. Corp., 210 F Supp 483 (E. D. Pennsylvania, 1962) wherein he stated at page 485:

“Keeping in mind that the question is, Is it the corporation which is seeking the lawyer’s advice when the asserted privileged communication is made ?, the most satisfactory solution, I think, is that if the em ployee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority, then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply. In all other cases the employee would be merely giving information to the lawyer to enable the latter to advise those in the corporation having the authority to act or refrain from acting on the advice.” (Emphasis supplied.)

(Accord: Natta v. Hogan, 392 F2d 686; Garrison v. General Motors Corp., 213 F Supp 515.)

In Day v. Illinois Power Co., supra, the Appellate Court, expressly adopted the “control group” test as enunciated in the Westinghouse and Garrison decisions and, in concluding that the attorney-client privilege did not apply, stated at page 59:

“There is nothing in the record before us to indicate that the employees and agents of the defendant power company, who investigated the explosion, repaired or replaced the ruptured gas line here involved and transmitted reports to M. Ducey, Attorney for the power company, had any authority whatsoever, either actual or apparent, to make any judgment or decision as to any action to be taken by the corporation on the advice of its attorney.”

Main Electric and its attorney wish this court to adopt the view that the attorney-client privilege as applied to corporate clients is so broad as to encompass all communications made to the attorney representing the corporation by any employee regardless of his rank or corporate responsibilities and duties. We reject such a view. We are cognizant of the enlargement of free discovery embodied in Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410, and we are also aware of Wigmore’s admonition which was quoted in Radiant Burners, Inc. v. American Gas Ass’n, supra, at page 323:

“ ‘Nevertheless, the privilege remains an exception to the general duty to disclose. Its benefits are indirect and speculative; its obstruction is plain and concrete. Even the answers to Bentham’s argument concede that the privilege is well founded in its application to a certain proportion of cases. It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principal.’ 8 Wigmore, Sec 2291, at 554, citing Foster v. Hall, 12 Pick 89, 29 Mass 89, 97 (1831), (‘The rule of privilege, having a tendency to prevent the full disclosure of truth, ought to be construed strictly’).”

We are of the opinion that under the facts in the Day case and under the facts presented in the instant case, the “control group” standard adequately defines the scope of the privilege as applied to the corporate client. In this case, as in the Day case, there is nothing in the record to indicate that the employees whose statements were not produced by Main Electric and its attorney had any authority to make any judgment or decision as to any action which might be taken by Main Electric upon the advice of its attorney. However, in so holding we do not mean to imply that communications by an employee of a corporation who does not come within the “control group” definition may never be privileged. For example, the principle underlying the attorney-client privilege would demand that an employee’s communications should be privileged when the employee of the defendant corporation is also a defendant or is a person who may be charged with liability and makes statements regarding facts with which he or his employer may be charged, which statements are given or delivered to the attorney who represents either or both of them. (See: D. I. Chadbourne, Inc. v. Superior Court of City and County of San Francisco, 60 Cal2d 723, 36 Cal Rptr 468, 388 P2d 700.) Again, however, the record is barren of any indication that any or all of the four employees of the third-party defendant were employees who could have been charged with liability in the instant cause. A review of the record forces us to conclude that the motion judge was not in error in ordering the production of the statements of these employees which are in the possession of Main Electric and its attorney.

We also find no merit to the contention that the order appealed from deprived the corporate third-party defendant of equal protection of the laws. The appellants argue that the instant order grants more extensive discovery against it, a corporation comprised of many employees, than would be the case if the third-party defendant were an individual or sole proprietorship. It must be conceded that the possibility for more extensive discovery in the case of a corporate party rests on the unalterable fact that a modern, public corporation often employs more people from whom discovery may be sought. However, to blanket as privileged all disclosures made by all “employees” of the corporation to its attorney in a case such as this would be to allow corporations to insulate all their activities from discovery by simply discussing them with legal advisors. Such a result would discriminate against the noncorporate plaintiff or defendant in favor of the corporate client.

The plaintiff, Stanley Golminas, had filed a cross-appeal in the Supreme Court and asserted as error that portion of the lower court’s order which excused Main Electric from producing statements of its managing agents and foremen. The cross-appeal was dismissed by the Supreme Court as not timely under Supreme Court Rule 303(b). Therefore, the issue raised by the cross-appeal is not before this court on transfer from the Supreme Court.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    Robert A. Michalowski, Plaintiff-Appellee, v. Richter Spring Corporation, Defendant-Appellant.
    Gen. No. 52,716.
    First District, Third Division.
    June 26, 1969.

      William Elden, of Chicago, for appellant.
    Matthew J. Ryan, of Franklin Park, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment on a verdict for $4,453.19 rendered in favor of Robert Michalowski, a licensed architect, against defendant. Don C. Burns, a draftsman and not a licensed architect, was also originally a party plaintiff but the court dismissed him and the suit proceeded as to Michalowski. On appeal the appellant improperly retained the name of Don C. Burns in the caption as a plaintiff-appellee. Defendant lists eleven contentions under its Points and Authorities and nine contentions under the heading, “Questions Presented,” but fails to follow the contentions made in his Points and Authorities as required by Supreme Court Rule 341(e) (5). In using this “shotgun approach,” (See Brown v. City of Chicago, 42 Ill2d 501, 250 NE2d 129), the defendant makes it difficult for us to ascertain its precise contentions.

The points which appear to merit consideration are as follows: (1) Because Burns was not an architect, the contract between plaintiff and defendant was void, (2) Evidence of plaintiff’s performance prior to the signing of the contract was admitted in violation of the parole evidence rule, (3) The court erred in denying defendant’s motion for a directed verdict, (4) The court erred in giving certain instructions to the jury, and (5) Defendant had a right to abandon the contract. The facts follow.

Michalowski and Burns were partners doing business as “Robert Michalowski, architect, and Don Burns, associate.” Michalowski did the architectural designing and Burns did the drafting under Michalowski’s control and supervision. In December 1963 they met with Max and Arthur Richter, president and secretary, respectively, of the defendant corporation, to discuss the construction of an addition to defendant’s plant. Plaintiff estimated the cost of the addition to be between $75,000 and $80,000 and agreed to perform the architectural services for the project.

In January 1964 Burns brought a set of preliminary drawings to the Richters, who approved them after minor changes. Michalowski and Burns proceeded to prepare the working drawings which were completed near the end of March and sent to general contractors for bids. On March 30, 1964 Michalowski and Max Richter signed a written contract between Richter Spring Corporation and “Robert A. Michalowski, Architect, [and] Don C. Burns, Associate.” Richter Spring Corporation recited that it intended to erect a two-story office building and agreed to pay Michalowski and Burns six percent of the construction cost. Michalowski and Burns agreed to perform the architectural services, which included preparation of preliminary and working drawings and supervision of the general administration of the construction contracts. Burns did not sign the contract.

When bids were received, Nuzzo Construction Company which had bid $77,850 was selected as the lowest responsible bidder. Joseph Nuzzo testified that he had submitted his bid on the basis of Michalowski’s drawings. In April 1964 Michalowski and Burns met with Nuzzo and the Richters. The Richters indicated that Nuzzo’s bid was within their budget and they tentatively decided to go ahead with the project, but as testified to by Arthur Richter, they decided later that month to abandon it and told Burns of their decision in June of the same year. Burns testified that he did not learn of the abandonment until he received a letter from defendant’s attorney on September 3, 1964.

Defendant argues that because Burns was not a licensed architect, the contract was illegal and void. It relies on Keenan v. Tuma, 240 Ill App 448, but that case is clearly distinguishable. In the Keenan case the plaintiff was not an architect nor was he working under the control and supervision of an architect. In the instant case Burns did only the drafting and did no architectural designing. He never represented himself as an architect and everything he did was under the control and supervision of Michalowski who is a licensed architect. Under these circumstances it is not necessary that Burns also be a licensed architect. People v. Rogers, 277 Ill 151, 115 NE 146; Hayne v. St. Louis, 258 Ill App 38; Ill Rev Stats, c 10½, § 4 (1967). We proceed to consider defendant’s contention that evidence of the plaintiff’s performance prior to the signing of the written contract was admitted in violation of the parole evidence rule.

The parole evidence rule prohibits, with exceptions not applicable here, the admission of extrinsic evidence for the purpose of altering, varying or contradicting the terms of a written contract. 18 ILP, c 10, Evidence, § 251. In the instant case plaintiff introduced evidence of his performance to establish the requisite consideration. The evidence did not vary, alter or contradict any of the terms of the written contract and its admission did not violate the parole evidence rule.

Defendant argues next that the court erred in denying the motion for a directed verdict. It contends that under the terms of the written contract it agreed to pay plaintiff six percent of the construction cost of the project and that since the project cost nothing, it owed plaintiff nothing. Defendant’s contention apparently is that “construction cost” should be read to mean the amount it actually paid out toward the construction of the project, which is nothing at all. That is not a reasonable interpretation of the contract. Defendant stated in the contract that it intended to erect the structure in question and agreed to pay plaintiff six percent of the construction cost. At that time the cost of the proposed construction was determined by bid to be $77,850. In view of the fact that plaintiff had almost fully performed his part of the contract, it is reasonable to infer that the parties intended “construction cost” to mean the amount that construction of the project would cost as determined by the bid and defendant was not at liberty to escape liability by changing its intention to build.

Defendant charges error in the court’s refusal to give two tendered instructions. The first instruction follows :

“The plaintiff has the burden of proving that plaintiff delivered the final plans to defendant and secured his approval of them.”

The written contract did not require that plaintiff deliver the final plans to defendant and plaintiff was not required to prove that as part of his case. The obvious reason the parties did not find it necessary to include such requirement in the contract is that plaintiff had already prepared the plans when the contract was signed and there was no further need to deliver them to defendant for approval.

Defendant also charges error in the court’s refusal to give the following tendered instruction:

“You shall also state the proportion in which the amount shall be distributed between the following:
“Robert A. Michalowski
“Don C. Burns.
“The amount allocated to Robert A. Michalowski shall be the amount of damages assessed in this case.”

Defendant contends that Michalowski did only a portion of the work for which he seeks to recover and that he should not be permitted to recover for the work done by Burns. That argument ignores the nature of plaintiff’s cause of action, which is for breach of a written contract. By the terms of the contract Michalowski agreed that he and his associate Burns would perform various services for the defendant and defendant agreed to pay a set price. Michalowski performed as much of his part of the agreement as he was permitted to do and there is no obligation on the part of defendant to pay Burns.

Defendant’s last contention is that the contract was severable and that it had a right to abandon it. It cites Furst v. Board of Education, 20 Ill App2d 505, 155 NE2d 654, to support its contention. That case held that a similar form contract prepared by the American Institute of Architects was severable and that the defendant could abandon it after paying the architect for his services rendered up until the time of abandonment. It is the contention of plaintiff in the instant case that he has fully performed his part of the contract so that even if the contract is severable, he is entitled to recover his full fee. He further contends that even if he did not perform that portion of the contract calling for supervision of construction, he is entitled to recover for the portion of the contract which was performed.

Under the contract the plaintiff was obligated to prepare preliminary and working drawings and in addition to supervise the performance of the construction contracts. Burns testified that the charges were divisible as follows: “twenty-five percent of the basic rate for preliminaries, fifty percent, which aggregates to seventy-five percent, for working drawings, twenty-five percent remaining for supervision.” It is clear that plaintiff prepared the preliminary and working drawings and was thus entitled to seventy-five percent of the basic rate. It is equally clear however that defendant abandoned the project before plaintiff performed any of his supervisory duties. Under the Furst case plaintiff was not entitled to recover for supervision.

The jury’s verdict of $4,453.19 was based on the charge provided for in the contract of six percent of the construction cost ($4,671) plus the amount expended by plaintiff for blue printing ($282.19) and less the amount previously paid by defendant ($500). No allowance was made for the fact that plaintiff was not called upon to perform that portion of the contract calling for supervision for which, as Burns testified, twenty-five percent of the construction cost ($1,113.30) was generally allowed.

Pursuant to Supreme Court Rule 366(a) (5), the judgment is reversed and the cause is remanded with directions to the trial court to enter a remittitur of $1,113.30 and thereupon enter judgment for $3,339.89.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sidney J. Collins, Defendant-Appellant.
    Gen. No. 52,830.
    First District, Third Division.
    June 26, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant, Sidney J. Collins, after a trial without a jury was found guilty of attempted rape and burglary with intent to commit rape. He was sentenced to terms of five to fourteen years for each offense, said sentences to run concurrently.

Since the only issue presented for review is whether the defendant’s jury waiver was understandingly made, there is no need to discuss the facts surrounding the burglary and attempted rape.

At the outset of the trial, the following colloquy took place:

MR. TOOLE: (Counsel for Defendant) “Mr. Collins is ready for trial. He wants to be tried by a bench trial, is that correct, Mr. Collins ?”
DEFENDANT COLLINS: “Yes.”
THE COURT: “You understand that you have a right to a jury trial?”
DEFENDANT COLLINS: “Yes.”
THE COURT: “You are indicating that you are waiving this right, Mr. Collins, you wish to be tried by the Court?”
DEFENDANT COLLINS: “Yes.”
THE COURT: “You can indicate that by signing a jury waiver, please.”
MR. TOOLE: “Sign that.”

(Jury Waiver Signed.)

It is well established that an accused’s waiver of his right to trial by jury must be “understandingly” made by him in open court. (Ill Rev Stats, 1965, c 38, § 103-6; People v. Richardson, 32 Ill2d 497, 207 NE2d 453.) The defendant argues that the above-quoted colloquy reveals that such a waiver was not understandingly made by him since there was no specific explanation by the trial judge as to the meaning and significance of a jury trial. In so arguing the defendant heavily relies upon the opinion and supplemental opinion in People v. Bell, 104 Ill App2d 479, 244 NE2d 321, wherein the court held that the defendant was not adequately apprised of his right to a jury trial and as a result he did not understandingly waive such a right. We are of the opinion that the Bell case is readily distinguishable from the case at bar. In Bell when the defendant was asked if he knew what a jury was he replied, “A what?” The Bell court said at page 484 in its supplemental opinion:

“Defendant’s questioning answer should have alerted the trial court to the need of an explanation of what a jury trial was and of his entitlement to a jury trial so that defendant could understandingly decide whether or not he wished to waive a jury trial.”

It is most significant that in the instant case there was nothing said or asked by the defendant to alert the trial judge to the need to give the defendant any further explanation of the nature of a trial by jury. We believe that it would be an unwarranted extension of the Bell case to read that decision as requiring such an explanation in all cases. Whether a jury waiver has been understandingly made rests on the peculiar facts and circumstances in each case, and there is no precise formula to be employed in determining whether a waiver is understandingly made. (People v. Richardson, supra; People v. Wesley, 30 Ill2d 131, 195 NE2d 708.) In the instant case the record does not disclose that the defendant was at any time confused or ignorant as to his right to a jury trial. The defendant indicated that he knew of his right and further indicated that he wished to waive his right. Under these facts, we must conclude that Collins understandingly waived his right to a jury trial.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Satterwhite, Defendant-Appellant.
    Gen. No. 49,695.
    First District, First Division.
    June 30, 1969.

      Thomas Satterwhite, pro se, of Joliet, appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

After a bench trial appellant was found guilty of the unlawful sale of narcotic drugs. On January 23, 1964, after a hearing in aggravation and mitigation, the trial judge sentenced him to life imprisonment. His post-conviction petition was dismissed, whereupon defendant appealed to the Illinois Supreme Court. On September 29, 1967, the Illinois Supreme Court affirmed the dismissal. People v. Satterwhite, 38 Ill2d 138, 230 NE2d 206 (1967).

Appellant now presents a pro se appeal, which was dismissed previously on his own motion then subsequently reinstated upon the sole issue that error occurred when the trial court sentenced him after the prosecutor recited orally the appellant’s past record of convictions rather than filing a written statement thereof. Ill Rev Stats 1963, c 38, § 22-43, provides in relevant parts:

“. . . After a plea or verdict or finding of guilty and before sentence is imposed, or after sentence is imposed and before the defendant has received his final and unconditional release and discharge from such sentence, the prosecutor may file with the court a written statement concerning any former conviction of a subsequent offense rendered against the defendant. The court then shall cause the defendant to be brought before it; shall inform him of the allegations of the statement so filed, and of his right to a hearing before the court on the issue of such former conviction of a subsequent offense and of his right to counsel at such hearing; and unless the defendant admits such conviction, the court shall hear and determine such issue, and shall make a written finding thereon. . . .”

Appellant contends that the prosecutor must file a written statement setting out the prior convictions relying on his interpretation of the statute and the decision in People v. Thompson, 36 Ill2d 478, 224 NE2d 264 (1967). The Thompson case does not involve the question of subsequent offender and the sentence was within the statutory range prescribed for first offenders.

After the guilty finding in the instant case, the prosecutor read into the record a list of the appellant’s prior convictions and asked defense counsel, “Is that correct?” The reply was: “That is correct, Mr. Healy.” During the same hearing in mitigation and aggravation, the defendant admitted he had sold narcotics and had been convicted, although he denied the sale of narcotics in the instant case.

We are mindful of the prosecutor’s failure to file a written statement of former convictions of subsequent offenses rendered against the defendant. Under the circumstances here involved, a written statement was superfluous. After the list of convictions was read, its veracity was confirmed by defense counsel and the defendant himself. There is no doubt as to the accuracy of the statement as recited by the Assistant State’s Attorney. We have previously upheld the decision of a trial court in another case in which the prosecutor presented to the trial court a Federal Bureau of Investigation sheet showing prior convictions. In that case, the defendant also admitted the accuracy of the report. People v. Alicea, 80 Ill App2d 133, 225 NE2d 470 (1967).

The judgment and sentence of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Lee Jones, Otherwise Called Jerry Davis Johnson, Defendant-Appellant.
    Gen. No. 52,768.
    First District, First Division.
    June 30, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald T. Rohrer, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant was indicted for the offense of theft “in that he, knowingly obtained and exerted unauthorized control over an automobile, of the value of more than one hundred fifty dollars, the property of Philip H. Bowers, intending to deprive said Philip H. Bowers permanently of the use and benefit of said property, in violation of Chapter 38, Section 16-1 (a), of the Illinois Revised Statutes 1965.” In a bench trial he was found guilty as charged and sentenced to the penitentiary for a term of one to two years. On appeal he contends (1) the State failed to prove him guilty beyond a reasonable doubt, and (2) the trial judge acted under an erroneous assumption of law and shifted the burden of proof to defendant.

The record shows that on January 17, 1967, an automobile owned by Philip H. Bowers was stolen from a Chicago parking lot. On January 22, 1967, two police officers saw defendant driving the stolen automobile and arrested him while in a gas station at 41st and Drexel Avenue, Chicago, Illinois.

Deloris Randolph, a witness for the defendant, testified that on January 22, 1967, defendant was working for her at the Orange Tree Lounge at 1037 West 63rd Street, Chicago. She had been the owner of the lounge for two years, and defendant had worked there for more than one year. On January 22, she was running a little short of beer and asked one of her regular customers, “Shorty,” if he would drive defendant to a wholesale liquor store to purchase some beer. Shorty told her he had a little too much to drink, but he would let defendant drive his car. At about 3:00 p. m. the defendant left with $30, in Shorty’s car, and Shorty stayed in the tavern. That night at approximately eleven o’clock, she told Shorty that she had received a telephone call that defendant had been arrested, and “it was something regarding the car. At that particular time, I could hardly understand, because there was so much noise in the tavern.” Shorty replied, “I don’t understand that. I’ll go and check it out. Where is he supposed to be?” The witness further testified that defendant could have bought the beer either at 63rd and Loomis or at 43rd and Michigan. She stated she was not related to the defendant in any way.

In rebuttal, the arresting officer, James Ball, testified that when he searched the defendant he found $10 and no beer was found in the car. He did not inventory the money found and did not mention it in his report.

Considered first is defendant’s contention that the State failed to prove defendant guilty beyond a reasonable doubt. Defendant contends that “knowledge that the car was stolen” was a necessary element in the State’s case, and the testimony of Deloris Randolph clearly demonstrated defendant’s innocence. Defendant argues there was nothing in the record which contradicts the fact that defendant had no knowledge that the car was stolen and, therefore, his conviction rests on evidence which was explained on reasonable grounds consistent with the defendant’s innocence.

Defendant cites People v. Kelly, 84 Ill App2d 431, 228 NE2d 561 (1967), where a conviction for criminal trespass was reversed when the defendant’s evidence showed at the time he entered the car he had no knowledge it was stolen, and nothing in the record contradicted this evidence. Defendant also cites People v. Botulinski, 383 Ill 608, 50 NE2d 716 (1943), where it is said (p 615):

“ [W] here circumstantial evidence is relied upon the facts and circumstances proved must be sufficient to establish the guilt of the person accused to a moral certainty and to the exclusion of every other reasonable hypothesis.”

The State maintains the theft was not disputed nor was the evidence surrounding the arrest of the defendant. Therefore, the only issue before the court was the credibility of Mrs. Randolph and the weight to be given her testimony. The authorities cited by the State include People v. Barnes, 26 Ill2d 563, 188 NE2d 7 (1963), where it is said (p 566):

“It is well settled that the recent, exclusive and unexplained possession of stolen property by an accused gives rise to an inference of guilt, absent other facts and circumstances which leave in the mind of the jury a reasonable doubt as to guilt. . . . The jury did not believe defendants’ explanation of how the stolen property got into the car. We cannot say that the jury was not justified in finding them guilty of burglary.”

Also, People v. Booher, 73 Ill App2d 226, 218 NE2d 779 (1966), where it is said (p 229):

“Defendant argues that his testimony tends to reasonably explain his presence in the building and that there are no circumstances inconsistent with his explanation. This argument is based on the false premise that the court must believe defendant’s testimony. However, it has long been the law that the statements of a defendant or witness may be so inherently improbable as to induce the court or jury to disregard his evidence, even in the absence of any conflicting testimony. The witness may be contradicted by the facts which he states as completely as by direct adverse testimony and there may be so many omissions in his account of the transaction, that his entire story is discredited. Under such circumstances, the testimony contains its own impeachment.”

After examining the testimony of Mrs. Randolph, we agree with the State that her testimony was so inherently improbable as to induce the trial court to disregard her evidence, “even in the absence of any conflicting testimony.” As argued by the State, it was not reasonable for a casual customer to lend “his new 1967 Oldsmobile convertible” to an employee of a tavern and not to be concerned when it was not returned. It was unreasonable that Mrs. Randolph made no attempt to aid the defendant when she allegedly heard of his arrest while on an errand for her, and also for her to make no effort to inform the police as to how defendant got the car, especially since it was through her instigation that he had possession of it.

The trial court chose not to believe the testimony of Mrs. Randolph, and we will not substitute our judgment for that of the trial court. We find the necessary elements of the offense of theft, as charged, were proved beyond a reasonable doubt.

Defendant next contends that the remarks of the trial judge show that he was operating under an erroneous assumption of law in deciding the case. In announcing his decision the court said: “There is nothing further. The Court has considered the evidence in the matter. After having considered the evidence offered by the State, as well as the defendant, the Court is confronted with a determination as to whether or not the purported explanation is a sufficient explanation to overcome the presumption of possession of recently stolen property. The Court concludes the same is not, and accordingly the Court enters a finding of guilty of the charge as set forth in the indictment. Judgment will be entered on the finding.”

From the foregoing, defendant argues that the court was “weighing the evidence produced by both sides to determine if the explanation offered by the defendant was sufficient to ‘overcome’ the presumption established by the State.” Defendant further argues that once the defense offered an explanation of how the defendant came to possess the automobile, the inference relied on by the State (unexplained possession of stolen property), a necessary element, the lack of explanation, was missing. Also, the court did not say that he did not believe the testimony of Deloris Randolph but stated that defendant’s explanation was “insufficient to overcome” the presumption raised by the State.

We agree with defendant “that the defendant has no duty to ‘overcome a presumption.’ If a reasonable doubt arises from the evidence the defendant must be discharged whether or not the evidence offered was sufficient to ‘overcome the presumption’ relied on by the State.” Defendant’s authorities include People v. Sanders, 357 Ill 610, 192 NE 697 (1934), where a jury instruction was condemned because “the repeated use of the word ‘overcome’ in the instruction tended to impress on the jury that the burden had shifted to Sanders and it was incumbent on him to prove his innocence. The burden of proof never shifts in a criminal case. The duty was not on Sanders to satisfactorily account for the possession of the stolen property, but the responsibility rested on the People throughout the trial, at all times, to prove him guilty beyond all reasonable doubt.” [P 619.]

The State contends that “exclusive and unexplained possession of property recently stolen are circumstances which the court may consider as prima facie evidence of guilt, and unless defendant offers a reasonable explanation of possession such evidence may be sufficient to prove guilt.” The State cites People v. Bennett, 3 Ill2d 357, 121 NE2d 595 (1954), where the court said (p 363):

“This court has often announced the rule that the possession of stolen property, the proceeds of a burglary or larceny, soon after the commission of the offense, is evidence of the guilt of the person or persons in whose possession it is found and is sufficient to warrant a conviction unless such possession is explained or unless there appears from all the evidence a reasonable doubt of the defendant’s guilt. . . . The court may properly instruct the jury to that effect. ... In the case last mentioned the court charged the jury in substance that the possession of stolen property, the proceeds of a burglary, robbery or larceny, soon after the commission of the offense, is prima facie evidence of the guilt of the person in whose possession it was found, and that such possession is sufficient to warrant a conviction unless the possession is satisfactorily explained, or unless there appears from all the evidence a reasonable doubt of the guilt of the defendant.”

The State agrees that the burden of proof always rests with the State. The State argues that, in applying the foregoing rules to the instant case, it is important to note that the case was tried without a jury and, therefore, there is no issue of misleading jury instructions. The State submits that the trial court, as trier of fact and law, was not in error in its choice of words or terminology when it said: “[T]he Court is confronted with a determination as to whether or not the purported explanation is a sufficient explanation to overcome the presumption of possession of recently stolen property.” The State further submits that the trier of fact does not have to accept any explanation, but that the explanation must be “reasonable” or “satisfactory.”

In People v. Litberg, 413 Ill 132, 138, 108 NE2d 468 (1952), it is said:

“With regard to the contention that plaintiff in error’s ‘perfectly normal’ explanation of his possession casts reasonable doubt upon his guilt, we can only say that the law has committed to the trial judge, where a cause is tried by the court without a jury, the determination of the credibility of the witnesses and of the weight to be given to their testimony. Plaintiff in error’s proffered explanation failed to raise a reasonable doubt in the mind of the trial judge and from our examination of the entire record we believe he was fully warranted in rejecting it. On review, this court will not disturb a finding of guilt unless it is palpably contrary to the weight of the evidence or is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of a defendant’s guilt.”

It is our opinion that the closing remarks of the judge before entering judgment do not show that he was acting under an “erroneous assumption of law” in deciding this case. His comments indicate he was fully cognizant of the issues, the burden of proof, and of his duty to determine the credibility of the witnesses and of the weight to be given their testimony. Defendant’s proffered explanation, the testimony of Deloris Randolph, failed to raise a reasonable doubt of defendant’s guilt in the mind of the trial judge. From our examination of the entire record, we believe he was fully warranted in rejecting defendant’s explanation of possession of recently stolen property.

We conclude that the finding of guilt of theft in the instant case is not “palpably contrary to the weight of the evidence,” nor is the evidence “so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” (People v. Hicks, 362 Ill 238, 246, 199 NE 368 (1935).) We believe all the elements of the offense of theft, as charged, were proved beyond a reasonable doubt, and the judgment of the trial court must be affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth A. Stewart, Defendant-Appellant.
    Gen. No. 52,802.
    First District, First Division.
    June 30, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant was found guilty of burglary and sentenced to the penitentiary for a term of four to eight years. On appeal he contends that he was not proved guilty beyond a reasonable doubt, and he was erroneously identified because of “unconscious transference.”

The complaining witness, DeJean R. Criswell, a guard in the Cook County House of Correction, testified he lived on the second floor of a 9-unit building located at 733 East 80th Street in Chicago. At approximately 4:45 p. m. on June 28, 1967, as he entered the vestibule of his building, he looked up the stairway and saw a man, carrying a little bag, leave the Criswell apartment and walk casually downstairs. Eealizing that his wife was at work and the man had no business being in his apartment, Criswell ran upstairs and found that his apartment had been ransacked. He ran downstairs and outside to look for the man. A bystander, Ben Gatewood, told him that a man had run down the alley, so he proceeded in pursuit. He finally saw the man in a parking lot, where the man turned to face Criswell from a distance of about fifteen feet. The man pointed a gun at Criswell and warned him if he did not break off the pursuit he would be shot. Criswell recognized the gun as the type he had in his home. When he returned home he found that his gun and a transistor radio were missing.

Ben Gatewood testified that he was a neighbor of Criswell and saw a man running out of the courtway of the building in which Criswell lived. The running man almost ran into Gatewood as he turned down the alley. Gatewood saw Criswell chasing the man and he followed.

Immediately after the burglary, Criswell and Gatewood looked at police photographs, and both testified that they picked out two pictures, one of the defendant and one of Donald Mann.

About a month after the burglary, on July 25, 1967, Criswell saw the defendant in a poolroom. The defendant said, “Hi, fellow,” as he passed Criswell. Criswell stopped the defendant and accused him of the burglary. Defendant denied the burglary and suggested that a man called “Cat Man,” who resembled the defendant and who had gray eyes, could have committed the burglary. Cris-well told the defendant that he worked for the House of Correction, and that he knew Cat Man, and that Cat Man was in the penitentiary. Criswell hailed a passing police car and had defendant arrested.

Criswell drove Gatewood down to a preliminary hearing in court. Before they arrived in court Criswell told Gatewood that they had caught “the fellow” in a poolroom. Gatewood then identified the defendant at the preliminary hearing. At the trial both Gatewood and Cris-well identified the defendant as the man they had seen on June 28, and both men noted that defendant had an unusual way of walking, described as a limp. Gatewood testified that he remembered the burglar because of the color of his eyes, which were grayish-green. He was not sure whether the burglar had a mustache.

The defendant, Kenneth Stewart, testified he did not remember exactly where he was on the date in question but he probably was at home. He denied being in Cris-well’s apartment and denied walking with a limp.

In support of defendant’s sole contention that he was not proved guilty beyond a reasonable doubt, defendant points out that the two witnesses for the State identified defendant about a month after the occurrence, but immediately after the crime, while the incident was still fresh in their minds, they identified a photograph of a man named Donald Mann as the man they saw running June 28. Defendant also notes that a police report, in evidence by stipulation, indicates that both witnesses identified only one photograph, the photograph of Donald Mann, as the burglar, and not the defendant.

Defendant argues that accepting as true the testimony of Criswell that he “recognized” the defendant in the poolroom about a month after the crime, he was uncertain at the time he viewed police photographs whether the burglar was the defendant or Donald Mann. Defendant further argues that if Donald Mann instead of the defendant had walked into that poolroom, it is likely that Criswell would have “recognized” Donald Mann as the burglar instead of the defendant. Defendant further states, “Neither of the eyewitnesses had a favorable opportunity to observe the fleeing burglar. Cris-well could not very well view the burglar’s face while running after him. . . . [Gatewood] merely saw a man running out of an apartment building courtway. He had no reason to pay attention, because at that time he did not know that a crime had been committed.” Defendant’s authorities include Patrick Wall, Eyewitness Identification in Criminal Cases, pp 101,102:

“One of the most serious and most frequently arising indications that a witness’s trial identification may be erroneous is the fact that the witness had previously identified someone else as the perpetrator of the crime. ... If the witness, having taken this position, later reverses himself and identifies another, how can one be sure that he is not as wrong on the second identification as he now must admit he was on the first? If more time passed, might he not also retract this second identification and accuse a third person?”

Also, People v. Cullotta, 32 Ill2d 502, 207 NE2d 444 (1965), where the court held the identification by two witnesses was insufficient to convict, where neither of the witnesses had favorable opportunities for observation.

Defendant also asserts that “before Gatewood identified the defendant in person, it is clear that he was influenced by Criswell. Criswell drove him to the preliminary hearing. Before arriving in court, Criswell told him that ‘the fellow’ had been caught. In effect, Gate-wood was told that the criminal had been caught and was waiting to be identified. He no doubt believed that the defendant was the burglar before he arrived at the hearing to identify him. Under these circumstances, Gatewood’s identification was very much dependent on Criswell’s, and it is hard to believe that Gatewood would have identified anybody if Criswell had not identified him first.” In support of the premise “that the influence of suggestion is an important cause of mistake,” defendant cites People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966), and People v. Minor, 95 Ill App2d 447, 237 NE2d 749 (1968).

Defendant further contends that he was erroneously identified by Criswell because of “unconscious transference.” Defendant states that the mistaken identification known as “unconscious transference” occurs when the witness has very briefly seen the person identified at a place other than the crime scene. The face evokes a spark of recognition, but instead of remembering where he has observed the face, the witness mistakenly “recognizes” the face as that of the criminal. This phenomenon is explained in Patrick Wall, Eyewitness Identification in Criminal Cases, pp 119-121:

“ ‘Identifications are based on familiar associations. Something about the person identified strikes a familiar cord in the mind of the witness. Frequently, however, the familiarity is based on a past experience totally unrelated to the crime. . . .’
“The special problem created by an unconscious transference lies in the fact that its existence is almost always unknown, even to the person in whom it occurs. Most of the other factors which may affect the accuracy of an identification are verifiable; . . .
“Obviously, the previous contact between the witness and the person identified must have been of a very limited nature. If the contact was frequent or prolonged, no transference would occur, for the witness would place the face in its proper, noncriminal context.”

Defendant argues that the instant case “presents a perfect illustrative set of circumstances for ‘unconscious transference.’ ” Defendant’s face was familiar to Cris-well, and “this look of familiarity could have resulted, not from the crime scene, but from a previous meeting in the House of Correction.” In support, defendant notes that “Criswell had been a correctional officer at the House of Correction for ten years. Since the defendant had previously served time in the House of Correction, it is likely that Criswell had seen him at some time in the past. Yet Criswell testified at the trial that he had never seen the defendant before. It is likely that Cris-well had seen the defendant in the House of Correction, and it was this association which gave the defendant’s face a ring of familiarity. . . . When the defendant passed Criswell at the poolroom, the defendant said: ‘Hi, fellow’ as if he knew him from someplace. It is highly improbable that a criminal would make this greeting to the victim of his crime. It is more likely that the previous contact between the defendant and Criswell occurred in the House of Correction.”

In sum, defendant argues that “all the circumstances point to the possibility that the defendant was the victim of a mistake. The witnesses obtained only split second glimpses of the burglar under circumstances of stress and shock. They first identified the photograph of Donald Mann as the criminal. The ultimate confusion of the defendant with the burglar resulted from a probable brief association in the House of Correction. The record leaves one bewildered as to whether Donald Mann, the defendant, or some third person, committed the crime.”

The State argues that in this case there were two possi-tive and credible eyewitnesses and both had a good opportunity to observe the defendant and whose testimony showed the defendant to be guilty of the crime charged in the indictment against him. The State asserts that Criswell had much more than a fleeting glance at the intruder. “There were two confrontations at close range and, even though he was being threatened with a gun, Criswell was not too shaken to make careful observations. He noted the color and type of the defendant’s clothing, and also that the man walked and ran in an unusual fashion.”

The State also asserts that the identification of defendant by Gatewood was clear and positive. As defendant left the building he passed within a few feet of Gatewood, who also had the opportunity to view the defendant’s clothing and to take notice of the peculiar way in which the man ran. He took particular notice of the color of defendant’s eyes, which he described as grayish-green. The State argues that the failure of Gate-wood to recall whether defendant had a mustache in no way renders the identification less credible. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964).

As to the contention that Gatewood’s identification of the defendant at a preliminary hearing resulted from the suggestion by Criswell on the way to the hearing that the police had caught “the fellow,” the State contends there is nothing in the record to indicate that Gatewood’s identification of the defendant was the result of any suggestion on Criswell’s part. In support is cited People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966), where it is said (pp 476-477):

“The fact that the police informed him (the witness) that the man whose picture he had picked out would be in the lineup does not seriously impeach the credibility of his identification. ... Of course, the very fact that he was asked to come to a showup might cause him to think, as it would anyone else, that the police had arrested a man who they believed might be the robber. But such an indirect suggestion is unavoidable.”

As to the photographs, the State argues that the identification of the defendant was strengthened by the fact that the two witnesses picked out a picture of the defendant, and “any doubt which could possibly be raised by the selection of more than one photograph is completely obviated by the positive identification made by both witnesses at the trial.” The State notes that the defense had ample opportunity to cross-examine both of these witnesses, but their testimony remained unshaken.

We agree with the State that the so-called theory of “unconscious transference” has no application to the instant case. Defendant was identified by two witnesses who had ample opportunity to observe the defendant at close range and who were both positive and credible. In People v. Bailey, 90 Ill App2d 121, 123, 234 NE2d 332 (1967), Mr. Justice Schwartz said:

“We are aware that visual perception is subject to error as are all our senses. That is not to say however that courts can no longer trust evidence which might be tainted by human fallibility. To make such an exclusion would in effect render impotent the administration of criminal law.”

The record shows that the court, before finding defendant guilty of the offense charged and in reviewing the evidence, disclosed some concern over the photographic identification and noted that the police report indicated one photograph was picked out, whereas both witnesses said they picked out two photographs. The remarks of the court concluded with the statement: “Well, the identification was made by both these parties, and it was certainly clear. The identification was made in person by the complaining witness, Mr. Criswell, who observed the person he chased. It certainly was clear and he picked this man out. All right, there will be a finding of guilty, and judgment on the finding.”

In a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt. (People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963).) From an analysis of the entire record, particularly the evidence relating to identification, it is our conclusion that the proof was sufficient to satisfactorily establish defendant’s guilt beyond a reasonable doubt. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


author: STOUDER, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Arroyo, Defendant-Appellant.
    Gen. No. 67-38.
    Third District.
    September 22, 1969.

      Wolslegel and Armstrong, of Ottawa, for appellant.
    Robert E. Richardson, Jr., State’s Attorney of LaSalle County, of Ottawa, for appellee.
   STOUDER, P. J.

In a petition for revocation of probation filed by the State’s Attorney of LaSalle County, the Defendant, Ronald Arroyo was alleged to have violated the terms of his probation by the commission of three felonies in January, 1965. After hearing, the Circuit Court of LaSalle County found that the defendant was guilty of violation of his probation in that he committed the three felonies described and thereupon his probation was revoked and he was sentenced to a term of from 1 to 10 years in the penitentiary from which judgment and sentence the defendant has appealed.

Defendant has made several assignments of error but the only alleged error which we believe it necessary to consider is defendant’s contention that the evidence is insufficient to warrant the conclusion that he committed the three felonies alleged.

In summary, the facts are that on the evening of January 28, 1965, the defendant with two companions, Vasquez and Grant went to several taverns in the La Salle County area, the trio using Vasquez’s father’s car. About midnight Vasquez having to take his father’s car home, asked the defendant to borrow a car from one Harris which the defendant did, giving the keys to Vasquez. According to defendant he did not see Vasquez or Grant until several hours later as he, the defendant, was on his way to the home of a friend in LaSalle. Vasquez said the police were looking for them and after defendant got into the car they went to the house of a friend near Spring Valley where they went to sleep, and were thereafter arrested. Vasquez and Grant were apprehended and charged with three burglaries which occurred that night. At the time of the arrest the proceeds of the burglaries were found in the house but no proceeds of the burglaries were found on defendant.

Vasquez pleaded guilty to the burglary of a cigar store but at the time of the hearing on the probation revocation, some thirteen months later, he had not been sentenced. Other than as described in the petition for revocation of probation, defendant was never officially charged with the three burglaries.

At the hearing on the probation revocation in April, 1966, the only evidence of defendant’s participation in the burglaries was the testimony of Vasquez, about which more will be said later. A police officer also testified concerning the occurrence of the burglaries and the arrest of defendant. Defendant testified in his own behalf, denying any involvement in the burglaries.

It appears that prior to the hearing, Vasquez made three confessions, two absolving and one implicating defendant. When Vasquez was called as a witness by the State on the morning of the hearing, he admitted his commission of the offenses, but denied that the defendant was in any way involved. Thereupon the State’s Attorney requested leave to question Vasquez as a hostile witness, which permission was granted, but Vasquez continued to deny that defendant was involved. After the noon recess Vasquez was again questioned by the State’s Attorney, at which time the witness stated that he had lied in the morning and that the defendant had participated in the burglaries. During his ensuing cross-examination the witness denied that he had been coerced into changing his testimony but did admit that he had been “upstairs” in the State’s Attorney’s office during the noon recess, and also admitted that he had tried to escape but had been apprehended by a state police officer. It also appears that Vasquez had served a term in the penitentiary for the prior conviction of a felony.

Defendant argues that the only evidence of his guilt is the testimony of Vasquez which is, under the circumstances, incredible and unworthy of belief. The State concedes that Vasquez “vacillated” in his testimony but contends that the trial court is the sole judge of the credibility of witnesses and since the trial court decided to believe Vasquez, its judgment is not erroneous.

Although a probation revocation hearing is not a criminal proceeding, the deprivation of liberty which is a possible consequence requires that the evidence of violation be clear and convincing. See People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113. As a general rule, the testimony of a self-confessed coconspirator must be viewed with suspicion. Where such self-confessed co-conspirator lies on the witness stand or directly contradicts the material substance of his testimony while testifying as a witness, it appears to us that such testimony is inherently unworthy of belief unless corroborated. Where such direct contradiction has occurred we do not see how a trial court can be justified in believing one account rather than the other. Which story shall be believed when the witness says, “I lied but now I am telling the truth ?” The State argues that the testimony of Vasquez was corroborated by other evidence, either that of the police or of the defendant himself. The corroborative evidence consists of the facts concerning the borrowing of the car, and the defendant’s association with Vasquez before and after the burglaries. Such evidence of purported corroboration is of no aid since it is corroborative of either story of Vasquez and offers no assistance in determining which of his stories was true. It appears that the trial court was disinclined to believe the testimony of defendant. Nevertheless, the State is not relieved from the necessity of proving the charges by credible evidence. Under the circumstances, we believe the probation violation is unsupported by sufficient credible evidence.

Accordingly the judgment of the Circuit Court of La Salle County finding the defendant guilty of violation of his probation is reversed and the sentence imposed pursuant thereto is vacated.

Judgment reversed.

ALLOY and RYAN, JJ., concur.