author: Per Curiam :

text:
    (No. 33798.
    The People of the State of Illinois, Defendant in Error, vs. George Kelly, Plaintiff in Error.

      Opinion filed May 23, 1956
    Rehearing denied September 12, 1956.

      Gerald W. Getty, Public Defender, of Chicago’, (John M. Branion, of Chicago, of counsel,) for plaintiff in error.
    Lati-iam Castle, Attorney General, of Springfield, and John GutknEcht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. J anega, William L. Carlin, and Frank G. Whalen, of counsel,) for the People:
   Per Curiam :

This case, on writ of error from the criminal court of Cook County, is here for review of a judgment on a jury verdict finding the defendant guilty of murder and fixing punishment at death. The common law record and a full transcript of the proceedings are before us.

It is undisputed that about 1 :oo P.M. on February 22, 1954, in the rear room of a tavern called the Corner Liquor at 45 East Garfield Boulevard in Chicago, the defendant George Kelly shot the tavern operator Robert Gottstein, two bullets going through the brain, and Gottstein died of these wounds. The defendant does not deny the shooting, but claims self-defense and alleges that certain irregularities occurred in the trial. As presented and argued by both the People and the defense, the issue involves why the defendant was in the tavern, particularly why he was in the rear room, what precisely happened, and what the defendant said at the time and in later statements bearing on his actions and intent.

The People presented six material witnesses in this regard. Eddie Towns, a porter at the tavern, said Gottstein was sleeping in the back room and that a waitress asked him to- go back there for some ice. He said that when he went for the ice, the defendant followed him, put a gun on him, said “this is a stick-up,” and in the back room told him to turn around. Then, he said, he heard a couple of blows like someone tapped another on the head; afterward, he heard a shot and somebody fell.

Mattie Cathey, the waitress, said the defendant was in the tavern from about 10:30 A.M. until the incident, that Gottstein waited on him and she served him beer and brought him some cigarettes, and that Gottstein went into the back room to lie down. She said she sent the porter for some ice and went about her business. When he did not return, she went after him, saw the defendant, heard a shot, didn’t know what was going on, and ran.

Neil Wilson, a Chicago Park District police officer, said he saw a crowd at the tavern, stopped the car, went in, got a description of the defendant, and began patrolling the neighborhood. He said he saw him, approached him, and asked him why he had shot the man in the tavern, and that the defendant replied it was because the man shot at him first. The officer said that on being asked his purpose in the tavern, the defendant said he was there to stick up the place, and on being asked to tell the whole story, said “he went back with the intention of robbing the owner of the tavern and when he went in the back he said the tavern owner was asleep upon the couch and he said he aroused the tavern owner and told him to keep quiet and the tavern owner moved as if to get off the cot he was on and he said he hit him over the head with his gun; he hit him several times and the tavern owner when he struck him with the gun fell on the floor and he was in a kneeling position on the floor; and he saw the tavern owner going to his pocket for a gun and that he knew he had in his pocket and he said the tavern owner came out with the gun and fired a shot at him, and he stepped back several feet and fired twice at the tavern owner.”

Charles Younger, a Chicago police plainclothesman, who went to the tavern about two o’clock after the incident, said the defendant told him he had been in the tavern the night before, had seen the proprietor put some money under the register, and on the day in question “went in there to stick the tavern up, to hold the proprietor up.” He said that the defendant then told of following the porter into the back room and ordering him to waken Gottstein, and further ordering the wakened proprietor to- remain still: “and that the man instead rolled to the floor, and that as he rolled to the floor that he struck him once on the head; the man tried to get up again and he struck him again on the head with his revolver; at that time the man went in his pocket and pulled a gun and fired a shot at him; thereupon he fired two shots at the proprietor.”

All four of these witnesses identified the defendant and the homicide weapon, a Colt .38-caliber police special.

Eugene Precin, a stenotype reporter, and Lester Shapiro, an assistant State’s Attorney, identified a question and answer statement talcen from the defendant at 5 ¡25 the afternoon of the shooting and signed about 11 o’clock the next morning. It was taken in the presence of Younger, Mattie Cathey, Shapiro and Robert Parker, Younger’s fellow-officer. It was signed in the presence of Younger, Parker, Wilson, and Shapiro. It contained Kelly’s signature, spelled “Kelley,” on each page, and on the last page over his signature, in his own handwriting, the statement: “I have read this statement and it is all true. Mr. Shapiro read one copy aloud to me which I follow by reading this statement.” There is no contention made that this statement was involuntary.

Cross-examination of Towns, the porter, revealed that he had not prior to the trial told anyone else that the defendant had said “This is a stick-up” at the time of the incident. But on redirect he could not recall that anyone had ever asked him. On the same point, Younger said on cross-examination that he did not remember the defendant’s ever admitting to him that he had told the porter it was a stick-up.

The written statement went into far greater detail than the oral admissions or direct testimony of the two tavern witnesses, but it was corroborative. Cross-examination of Shapiro revealed that he did not formally introduce himself as an assistant State’s Attorney until a point on page four of the statement, that he was quite leading in some of his questions, and that he, rather than the defendant, used for the first time in the transcribed portion of the interview the word “rob.” But it was clear from the whole transcript that Shapiro- did introduce himself at the very outset, and that much of what went into the transcribed portion of the interview was the result of an earlier preliminary oral discussion.

The only defense witness was the defendant himself. His version of the incident was simple and direct. As he put it, he had been in the tavern the night before and bought a beer, giving Gottstein a ten-dollar bill. He said when he counted his change he had only $4.70 and called the matter to Gottstein’s attention. He said Gottstein then snatched the bottle from in front of him and said “You have your change. The best thing for you to do is get out of here because this is a neighborhood tavern.” The defendant said he saw the imprint of the handle of a pistol in Gottstein’s pocket when Gottstein reached in the pocket, so he left. But he said he went back the next morning to get his money and took the gun with him because he remembered the gun Gottstein had.

The defendant’s version of the actual shooting is consistent with that of Mattie Cathey and Towns, except that the defendant denies striking Gottstein before Gottstein’s shot, he denies telling Towns “this is a stick-up,” and he says he first pulled the gun when Towns gave him a stiff arm at the door of the back room. In the defendant’s words: “I asked Mr. Towns to turn the light on, and he turned the light on and then I tells him, ‘Wake your boss up’ and he woke him up. After he woke him up, after he woke him up, he raised up and he ups and rolls off on the floor and fires at me. Then in return I fire back at him. Before the firing I did not strike him with the gun, that was just made up. When I fired at him, I was scared. I mean just like a dream or something running down on you, you don’t know what to do. I did not expect him to shoot at me when I went back there. I did not go back there to hold him up. I fired twice. After I fired twice, I stood up for awhile and then I told Mr. Towns ‘You better call the police or an ambulance quick.’ Then I ran out.”

As to the oral admissions and written statement to the effect that he had gone to the place to rob Gottstein, that he had struck Gottstein over the head twice before any shooting took place, and certain other incriminating details, the defendant testified that at the police station “everybody had automatically got it in their head that I was there to stick the man up.” He said he had never told anyone he had gone to1 the place for a holdup, and he said regarding his admissions of striking Gottstein over the head that he was lying and the stories were “made up” or “fiction.”

On this record, the defendant here argues five main points : (1) Murder was not proved beyond a reasonable doubt. (2) There was error in the giving and refusing of instructions. (3) There was error in the admission of evidence. (4) The death penalty fixed by the jury was the result of prejudicial passion. (5) He was not tried by an impartial jury, because one petit juror was the wife of a member of the grand jury that voted the indictment.

The defendant argues that the testimony of Towns is unsatisfactory because it includes the statement that the defendant said “This is a stick-up,” although Towns did not tell anyone, not even the investigating authorities, about any such declaration by the defendant. But the fact Towns told no one before the trial about the defendant’s declaration does not prove that the defendant did not make it. For it is equally clear nobody asked Towns about it, and the facts that Towns did relate are all consistent with such a declaration. Moreover, the defendant admitted substantially the same thing to both Wilson and Younger within an hour after the killing.

The defendant argues that Mrs. Cathey’s testimony cannot be relied on because she said on direct she did go into the back of the tavern and said on cross-examination she did not, and she said Gottstein had served the defendant about ten o’clock, while Towns indicated Gottstein was not in the front of the tavern from seven o’clock on. But these were minutiae which did not discredit the witness. Who was where in a busy tavern, with some 18 customers present, even where the boss was, and particularly who served whom during three or four hours prior to an incident which in retrospect dwarfs all others are not significant details. They would likely be neither observed nor recalled with precision. They are immaterial here. Likewise, whether she went back into the rear room, went to the back “part” of the tavern or started back when she heard the shots is not material. The defendant admitted before trial and testified at the trial that he was back there and did the fatal shooting. Her cross-examination statement was not pursued on any impeachment basis and may be considered as a correction of her direct. Her value as a witness is, at all events, not destroyed on the implications drawn by the defendant here.

The defendant goes to great length in an effort to show that the assistant State’s Attorney led the defendant into making certain statements about the incident, calling him “a master craftsman” who substituted his own opinions and conclusions for statements of the defendant. Some of his questions were leading. But we cannot say that the leading questions were designed to put words in the defendant’s mouth, to distort the truth, or do anything other than clarify the defendant’s intentions which were otherwise rather unarticulated.

The result certainly was not to mislead the defendant, for he answered some important questions with direct “yes,” others with “no,” still others with modifying explanations, and on certain key points, did not follow but refuted the examiner. For instance, asked if it were not correct that he had been carrying a gun right along, he said “no.” Asked when he got the idea to rob the place, he answered “well, when I seen that big bale of money he had.” Asked why he waited from 10:30 until 1 :oo before he tried to hold up the place, he answered “well, I had my chance, you know, when I could get by without anybody seeing me.” Asked if he were pointing the gun at the porter, he answered “no.” Asked if he had it in his hand, he said “yes.” Asked if he had it pointed at the deceased, he said “well, yes, but I mean, I didn’t have my hand on the trigger, no.” Such answers indicate not a pliable subject in the hands of a corrupt and corrupting craftsman, but a witness at least alert to the implications of the questions and free and vocal enough to give discriminating answers.

On two key points, he volunteered answers either outside the scope of the question or wholly unsuggested. Asked what he said to the deceased, he answered “I said take it easy now, you know. And then he went to raise up again and I struck him.” Asked if there were anything else he wanted to tell, he said “Well, I mean, I didn’t go in there to kill nobody. I went in there to get some money, that’s all.” (Emphasis supplied.)

As to why he went into the tavern, he summarized succinctly without any leading questions: “Q. And your reason for entering this tavern was what? A. To get some money. Q. By what method? A. What do you mean? Q. In what manner ? A. Well, I thought I could just show my gun and get some.” On questions and answers of this character, we cannot say that the defendant was led into any statements he did not mean to make, perverted into acquiescing in any assumptions of the examiner, or induced to distort the truth as to physical facts or as to his own intentions.

His own version and theory of self-defense is contained in the statement in these words: “Q. Well, didn’t you say to him it was a stick-up or words to that effect? A. No, before I could say anything, he pulls his pistol and shoots at me'. And then in return, I shot back. Because it scared me, you know.” Following this report, the examiner made no attempt to destroy the defendant’s flat denial of any “stick-up” declaration.

It would serve no useful purpose to recount here the full details of the lengthy question and answer statement. It should be made clear, however, that we have examined it in close detail, and find that no unfair advantage of the defendant was taken and that there is nothing involuntary, coerced, or distortive about it.

While it is not a full confession of a shooting in the course of an armed robbery expressly intended, it contains numerous admissions corroborative of the oral admissions given to the two officers.

On perhaps the most crucial point in the whole case— who made the first direct aggression in the back room— the defendant’s statement is not the result of any leading question, but is volunteered and outside the scope of the question. He was asked about what he said to the deceased and answered, “I said take it easy now, you know. And then he went to raise up again and I struck him.” This is corroborated by the evidence of cuts on the head of the deceased, as shown by the autopsy.

Assuming for purposes of discussion that the defendant went to the tavern to collect $5 he claims to- have been shortchanged, he had no right to do so at the point of a gun. He had no' right to go from the public portion of the tavern to the keeper’s private rear room, nor to menace the man’s porter on the way. Yet he trespassed into the private room, forced the porter to waken his boss, and pointed a loaded gun at the sleepy man. The defendant was the aggressor. If the deceased rolled off the cot and went for a gun, it was not until he had been struck severe blows on the top and rear of the head by the gun in the defendant’s hand. And in such circumstances, the defendant’s final fatal act cannot be excused as self-defense when he himself had brought on the action of the deceased.

This is settled law. When a person has sought and brought on the difficulty he cannot invoke the law of self-defense unless he has in good faith declined further struggle. Stanton, Illinois Criminal Law & Practice, sec. 1884, citing ten Illinois cases from Adams v. People, 47 Ill. 376, to People v. Grosenheider, 266 Ill. 324.

His denial that he struck the deceased when the sleepy man “raised up” — before any shooting at all is inconsistent with his own statements to Shapiro and at the inquest which he later says were lies, “made up,” or “fiction.” He explains his inconsistent inquest statement as made when he was “afraid,” but he does not explain the alleged lie to Shapiro. His denial also flies in the face of the cuts on the top and rear of the deceased’s head. And on this crucial point, the attitude and conduct of the parties before any shots were fired and before the deceased had even reached for his gun, it is defendant who is unreliable.

It is of course our duty to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt, if that reasonably may be done, and where the entire record leaves us with any grave or substantial doubt of guilt, we must reverse. {People v. Sheppard, 402 Ill. 347.) This duty weighs most heavily in a death-penalty case. But we have examined the evidence at length and with care and can find no such doubt here.

The defendant’s denials which, if believed, might be considered consistent with his self-defense theories create, at best, a conflict in the evidence. But a conflict in the evidence does not of itself establish a reasonable doubt, and a jury verdict based on credible and substantial evidence is not rendered reversible by the fact that there was other evidence in the case which might, if believed, have resulted in a different verdict. People v. Martin, 304 Ill. 494; 15 I.L.P., Criminal Law, sec. 464.

We next discuss the instructions, which we have considered as a series and with regard to the individual rulings complained of as error.

The defendant objects to an instruction which advised the jury that if they find, after considering all the evidence, that any witness testifying on behalf of either side wilfully and corruptly testified falsely to any fact material to the issue in the case, they have the right to disregard the testimony of such witness, except in so far as corroborated by other credible evidence. It is urged that this instruction leaves undefined the facts material to the issue, and the giving of it constituted reversible error. However, other instructions fully covered what the material issues were, and the instruction was therefore proper. People v. Skelly, 409 Ill. 613, 627.

Four of the State’s instructions are complained of for the reason that no mention is made of self-defense. These four deal with deliberate and dangerous assault as implying malice, intent shown by circumstantial evidence, malice aforethought without any considerable lapse of time between the first thought and the act, and malice express or implied in the statutory definition. The giving of these instructions was not erroneous, because self-defense was adequately covered in two other given instructions. “It is not necessary that a single instruction should state either all the law of the case or all the law on a given subject. * * * It is sufficient if the instructions, when considered as a whole, fully and fairly announce the law applicable to the theories of the prosecution and the defendant, respectively.” People v. Hubbs, 401 Ill. 613, 622-3. See also People v. Horton, 4 Ill.2d 176.

The defendant complains of an instruction which told the jury that the intent alleged in the indictment had to be shown, claiming that the indictment alleged no intent and for murder it is sufficient to prove general malice as distinguished from specific intent. This instruction could not have prejudiced the defendant, but, if anything, was likely to inure to his benefit. See People v. Guido, 321 Ill. 397, 413.

Also criticized is an instruction defining malice as including “not only anger, hatred and revenge, but every other unlawful and unjustifiable motive” The instruction is vague in that “other unlawful and unjustifiable motive [s] ” are left undefined, but it has been approved by this court. (McCoy v. People, 175 Ill. 224, 229.) And in any event, as applied to the circumstances here, we do' not believe the instruction could have had a misleading effect. What harmful effect it might have had is not suggested by the defendant, and we can conceive of none.

Finally, the defendant complains of an instruction which stated that if the defendant entered the place to rob it and pointed a revolver at the deceased, and some other person fired the first shot, after which the defendant shot and killed the deceased, or aided, abetted or assisted, advised or encouraged some other person to do so, that is, if his own deliberate and wrongful act brought on his need for any self-defense, he cannot avail himself of such a defense and the killing would be murder. We do not see why any matter of aiding, abetting, assisting, advising, or encouraging someone else was inserted in this instruction. For there were no accomplices in the case, and whatever acts were charged were by the defendant on his own. However, the matter is mere surplusage and not prejudicial.

On the whole, we believe the series of instructions fairly stated the issues and the law and provided a fair and complete guide for the jury. If the series of instructions taken together satisfactorily serve this purpose, without prejudice to the defendant, inaccuracy or erroneous or misleading matter which is not harmful provides no ground for reversal. (People v. Wilson, 1 Ill.2d 178; People v. Hubbs, 401 Ill. 613; 15 I.L.P., Criminal Law, sec. 74.) This general proposition has been particularized in application to cases involving self-defense. People v. McClain, 410 Ill. 280; People v. Hubbs, 401 Ill. 613.

The defendant’s contentions regarding improper admission of evidence and regarding a death penalty resulting from prejudicial passion are not argued, and are considered waived.

The final contention is that the trial court erred in denying a motion for new trial based on the fact that one petit juror was the wife of a man who was on the grand jury which returned the indictment. The defendant contends that, we must conclude from a hearing on the matter that she suspected this when selected as a juror and became convinced of it after evidence began coming in; that she deliberately secreted from the trial court the fact her husband had been on the grand jury; that she knew some or all the facts without getting them from the trial witnesses; and that she was thus not “uncommitted” and impartial on the question of guilt. But the husband did not discuss any grand jury cases with her during his service, and was out of town and not communicating with her during hers. She knew that he had been on a grand jury, but did not until after verdict confirm her suspicion that he might have sat on the one which returned the indictment here. She neither testified falsely on voir dire or later, nor withheld any answers regarding her knowledge or lack of knowledge of the facts in the case before her. She said she would have revealed these things if asked, but thought the fact her husband had been on a grand jury had no bearing on the case. In all events, he said affirmatively that he had not discussed grand jury cases with her, and she said affirmatively that when she served on the jury she had never heard anything about this particular case before.

In these circumstances, the defendant’s point amounts to a bare assertion that a petit juror related to a grand juror has, as a matter of law, not only knowledge of the cases considered by that grand jury, but preconceived convictions regarding guilt or innocence as to indictments voted by it. Inferences, in our opinion, cannot be carried this far. And cases calling for new trial where a juror has an opinion, prejudice, or partiality, either express or implied from circumstances or from deception regarding the matter, do not apply.

Where there is no such opinion, or the opinion is removable or an opinion which is not fixed, the juror is not disqualified. (Leach v. People, 53 Ill. 311; Wilson v. People, 94 Ill. 299; Stanton Illinois Criminal Law & Practice, sec. 1054.) It has been so held in a capital case. Wilson v. People, 94 Ill. 299.

On a careful review of the whole record, we believe the defendant had a fair trial, and that the jury verdict was fully justified by evidence which warranted belief and which, if believed, proved the defendant guilty beyond a reasonable doubt. In such a case, the defendant’s denials of incriminating aspects of the case and a theory of innocence based on such denials do not require the rejection of the evidence against him, nor render improper a verdict based on such evidence.

As discussed above, the fact that the defendant did not fire the first shot makes him no less the original aggressor, and in the circumstances no less guilty as a matter of law.

The judgment of the criminal court of Cook County is affirmed, and the clerk of this court is directed to enter an order fixing October 5, 1956, as the date on which the original sentence entered in the criminal court of Cook County shall be executed. A certified copy of the order shall be furnished by the clerk of this court to the sheriff of Cook County.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 33797.
    The People of the State of Illinois, Defendant in Error, vs. Vincent Ciucci, Sr., Plaintiff in Error.

      Opinion filed May 23, 1956
    Rehearing denied September 12, 1956.

      George N. Leighton, of Chicago, for plaintiff in error.
    Latham CasTlE, Attorney General, of Springfield, and John Gutknecht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Per Curiam :

After trial by jury in the criminal court of Cook County, Vincent Ciucci was convicted of murder and sentenced tO' death. He has sued out a writ of error to review the judgment.

The indictment charged defendant with murdering his nine-year-old son, Vincent, Jr., by shooting and asphyxiation. The record shows that defendant, with his wife and their three children, lived in the rear portion of a brick building. They operated a small grocery store in the front portion. At two o’clock in the morning of December 5, 1953) the building was discovered in flames. Defendant was observed in a crouched position inside the front door of the store portion, which had a glass panel, and two persons in the neighborhood broke the door and pulled him out of the burning building. Firemen later arrived and removed the bodies of his wife and three children, which were still lying in their respective beds. The bodies were taken to the county hospital, where they were pronounced dead. Upon removal to the morgue it was discovered that each had a hole penetrating the head.

The day before the fire defendant had borrowed a .22-caliber rifle from a friend, stating that he wanted to go hunting for rabbits. After the fire subsided the rifle was found separated into its two parts in a kitchen wardrobe cabinet. Two days later police officers found several empty .22-caliber cartridge cases on the premises. Ballistic tests proved these to have been fired from the rifle borrowed by defendant. They also found portions of a sheet, a pillow slip and a pillow, all of which bore human blood stains, the latter also containing a bullet. Bullets were found in the brains of the wife and daughter, and the son’s head contained a wound which an expert testified was caused by a bullet passing through the head from the right side and leaving the left side.

For two or three years prior to the fire defendant had been acquainted with a 21-year-old girl named Carol Amora. In May, 1952, her father died leaving her an inheritance of $2300. From time to time she loaned defendant a total of $1300 of this to enable him to buy a car and pay debts. They began having sexual relations, and lived together for a time in a hotel. Defendant stated his wife would not give him a divorce but only separate maintenance. After Carol became pregnant by him, he stated he owed back “alimony” to his wife, and could not afford to keep Carol with the baby coming in addition to his wife and three children. After the baby was born they resumed sexual relations, defendant expressing intentions of getting a divorce.

On the day of the fire the defendant, while in the hospital, gave a lengthy statement to the authorities in which he related that on the preceding night his children went to bed about 10:30 o’clock, his wife retired at 11:30, and he went to bed a short time after midnight; that the next thing he remembered was a feeling of heat and shortness of breath; that the building was filled with smoke, causing him to gag for breath; that he called to his wife, leaped out of bed and tried to reach the telephone; and that he then ran through the store, banged on the front door and broke the glass.

Defendant did not testify at the trial. Three witnesses were called on his behalf. Two of them testified defendant loved his son; and the third, a neighbor, testified that about two- o’clock in the morning of December 5, 1953, he heard a loud booming noise and the shouting of people, that he looked toward the building in question and saw smoke and flames coming from it, and that he ran to the front of the building and helped pick up the defendant, who was lying on the ground half in the vestibule and half outside. No evidence was offered tO' dispute or explain the principal facts brought out by the evidence for the prosecution.

Defendant’s thirteen assignments of error may be grouped into seven general categories. He urges first that inflammatory and irrelevant evidence was admitted. The evidence complained of is the testimony of Carol Amor a concerning their illicit relationship and the money borrowed by defendant; testimony concerning the deaths of defendant’s wife and two daughters and descriptions of their bodies; and the rifle, empty cartridge shells, bullets, and blood-stained pillow slip and bed sheet, which were admitted as exihibits and taken by the jury into the jury room. The evidence of illicit sexual relationship and the deaths of defendant’s wife and other childi-en, it is argued, is incompetent because it relates to other offenses and because it is highly inflammatory in nature. The general rule, of course, is that evidence of a distinct substantive offense, or evidence which tends to mislead or prejudice the jury, cannot be admitted in a prosecution for another offense. This rule, however, is simply one aspect of the still more general rale that evidence must be confined to the subject of the indictment, which is the only matter an accused can be expected to come prepared to answer. (Farris v. People, 129 Ill. 521.) The rule does not render incompetent such evidence where it is pertinent to the issue and tends to prove the crime charged. (People v. Fricker, 320 Ill. 495.) In this case there is a logical connection between the sexual relationship with Carol Amora and the crime with which defendant was charged.

Evidence of the death of defendant’s wife and two daughters in the same catastrophe was clearly admissible as a part of the res gestae. (People v. Murphy, 276 Ill. 304; Hickam v. People, 137 Ill. 75.) While the prosecution indulged in some unnecessary detail of evidence descriptive of the condition of the bodies, it was not an abuse of discretion for the court to admit it, or to admit as exhibits the rifle, cartridge cases, bullets, and blood-stained bed clothing. (People v. Fisher, 340 Ill. 216.) The general rule is that whatever tends to prove any material fact is relevant and competent. Much of defendant’s argument as to evidence goes merely to its weight and not to its admissibility. There was no’ error in admitting the evidence in question, nor did the court err in permitting the jury to take the exhibits to the jury room. Whether particular exhibits bear directly on the charge, and hence may be taken to the jury room, is a matter resting largely in the sound discretion of the trial judge. People v. Love, 310 Ill. 558, 567.

It is further contended the trial court in two instances improperly allowed witnesses for the State to usurp the province of the jury by giving opinions of fact upon which the decision of the case depended. An expert in the city fire department testified that on the basis of his examination of charred sections of the premises on the day of the fire he had an opinion there had been five separate and distinct fires. The coroner’s physician, a specialist in the field of pathology, described the wound in the head of the deceased son and testified that in his opinion it was caused by a .22-caliber bullet. Defendant insists the matters testitied to were ultimate facts for the jury and incompetent as a subject for expert testimony. We can see no error in allowing the testimony. As to the latter, the fact for the jury to determine was whether the wound was inflicted by defendant with the particular gun in question. (See Cannon v. People, 141 Ill. 270, 277.) As to- the fireman’s testimony, the question whether there were several distinct fires is obviously not an ultimate one to be determined by the jury. It has long been the rule in this State that expert testimony is acceptable wherever peculiar skill and judgment applied to a particular subject are required to explain results or to trace them to their causes. (People v. Jennings, 252 Ill. 534, 550.) In 20 Am. Jur. 654-655, it is stated that “The modern tendency is to make no distinction between evidential and ultimate facts subject to expert opinion. The courts consider that it is more important to get to the truth of the matter than to- quibble over distinctions in this regard which are in many cases impracticable. Accordingly, in many cases expert witnesses have been permitted to state facts known to them because of their expert knowledge, even though their statements may involve the ultimate fact to be determined by the jury.” And at page 734 of the same volume it is observed that “A competent expert may testify from the nature of a wound as to the character of the weapon which caused it, and even nonexpert testimony is sometimes accepted in this connection.” There is no merit in defendant’s contentions.

Complaint is made that the court erred in limiting the cross-examination of various witnesses for the State. While the defendant’s brief contains portions of the testimony, objections and rulings, the nature of the error, if any, is left to- inference. Defendant fails to point out wherein the court erred in its rulings, except that as to one witness defendant complains he was not allowed to attack credibility by showing unlawful occupation; and that as to the cross-examination of an assistant State’s Attorney who had testified, defendant contends he should have been permitted to ask whether the present case was the first one handled by the witness in his official capacity. We have examined the rulings questioned and find them to be proper.

The next contention also merits little discussion. It is argued that the court displayed prejudicial conduct toward defendant and his counsel. To support the assertion defendant complains that the judge, in overruling objections to testimony of Carol Amora, used the words “she may answer.” Defendant says that by such remarks the judge conveyed a suggestion of partiality toward State witnesses. Another matter relied upon to support the position is that in sustaining objections the court said “Jury to disregard,” which comment defendant considers an inadequate correction of impropriety. The last matter criticized by defendant is the practice of the judge in retiring to his chambers to pass upon objections raised at the trial. The contention, apparently, is that this practice, in a manner which defendant does not point out or explain, accentuated “inflammatory and prejudicial argument” by the prosecutor. We see no impropriety in any of these remarks and actions of the court.

It is urged that the prosecutor persisted in asking questions to which objections had been sustained, and that in his closing argument to the jury, he made improper and prejudicial appeals to emotion and passion. The argument to the jury emphasized that the wife and children received no trial at the hands of defendant, that he imposed on them the death sentence and shot them “like a Chinese executioner,” and that defendant should get the same kind of penalty. We have carefully considered the conduct complained of, and conclude it does not require or justify a reversal of the judgment. As to the closing argument, the jury had a duty to fix the penalty from a consideration of all the circumstances, including the atrocity of the crime. The prosecutor was within the limits of propriety in arguing that the death penalty should be imposed. People v. Sullivan, 345 Ill. 87.

Defendant objects to the refusal of a tendered instruction to acquit him if the evidence could be reconciled on any hypothesis other than his guilt. While the instruction might properly have been given, it was not error to refuse it since another instruction tendered by defendant was given which embodied the same proposition. (Parsons v. People, 218 Ill. 386.) Complaint is made of an instruction given at request of the State which defined murder as unlawful killing with malice aforethought, and which stated that “the unlawful killing may be perpetrated by shooting, asphyxiating or by any other of the various forms or means by which human nature may be overcome, and death thereby occasioned.” The instruction was sufficiently based on the evidence, and is not subject to the criticisms made by defendant. The fact that the evidence was circumstantial in nature does not render the instruction inapplicable. Another given instruction objected to by defendant declared, inter alia, that the law demands a conviction wherever there is sufficient evidence to show the defendant’s guilt beyond a reasonable doubt, and that circumstantial evidence is legal evidence. This instruction was given and approved in People v. Guido, 321 Ill. 397, at page 415, and has received further approval in other decisions of this court. While we feel that an instruction using the words “authorizes” or “warrants” would be more appropriate than the word “demands,” and the definition of circumstantial evidence should have been qualified to the extent that such evidence must be strong and convincing in character, nevertheless we do not believe the result of the trial would have been different had the instruction been given in the form above suggested and that any irregularity in this respect does not constitute prejudicial error. Objection to a further given instruction defining malice aforethought is too trivial and lacking in merit to warrant discussion.

It is assigned as error that the court denied a “motion to dismiss” on the ground of former jeopardy. Defendant had been tried and convicted in two previous trials for the murders of his wife and daughter respectively. He now argues that the two former prosecutions were for the same offense as the present one, and hence operate as a constitutional bar to this prosecution. The long-established test of former jeopardy, however, is whether the facts charged in the latter indictment would, if found to be true, have justified a conviction under the earlier indictment. (People v. Allen, 368 Ill. 368.) When this test is applied here it is obvious that under the indictment for murder of his wife a verdict could not be sustained finding him guilty of murdering his son. It is the identity of the offense, and not of the act, which is referred to in the constitutional guaranty against double jeopardy; and where two or more persons are unlawfully killed, even though by a single act, there is a corresponding number of distinct offenses. (People v. Allen, 368 Ill. 368.) In the case at bar not only were these separate offenses, but the acts themselves, i.e., the shootings, were separate and distinct. There is no merit to the present contention.

Counsel urges, finally, that the evidence is insufficient to sustain the verdict. He argues that the proof does not show whether the cause of death was shooting or whether it was inhalation of smoke or carbon monoxide from the fire; that there is nothing to prove the origin of the fire; and that there is nothing but suspicious circumstances to connect defendant with the crime. We think the evidence is ample to show his guilt beyond all reasonable doubt. It is not disputed that he was present with his wife and children shortly before their deaths, and was the only person present with their dead bodies. It is likewise beyond reasonable dispute that he had motive for ridding himself of his family; that on the preceding day he had borrowed a .22-caliber gun; that empty cartridge cases fired from that gun were found on the premises; and that the decedent was shot in the head with a .22-caliber bullet. There is absolutely nothing in the record tending to show that the crime was committed by someone else.

On this record we are convinced not only that defendant was proved guilty beyond a reasonable doubt, but that he also has been accorded a fair trial under the law. This murder was a revolting, brutal one, with no extenuating circumstances whatever. Where the law is shown to have been fully met it is the duty of this court to affirm the judgment.

The judgment of the criminal court of Cook County is affirmed, and the clerk of this court is directed to enter an order fixing October 5, 1956, as the date on which the original sentence entered in the criminal court of Cook County shall be executed. A certified copy of the order shall be furnished by the clerk of this court to the sheriff of Cook County.

Judgment affirmed.

END OF VOLUME.


author: MR. JUSTICE CLARK

text:
    (No. 51812.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONALD JONES, Appellee.

      Opinion filed December 20, 1979. —
    Rehearing denied February 1, 1980.

      William J. Scott, Attorney General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (Donald B. Mackay, Melbourne A. Noel, Jr., and Neal B. Goodfriend, Assistant Attorneys General, and John X. Breslen and Terry A. Mertel, of the State’s Attorney Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the , court:

Ronald Jones was found guilty of armed robbery and attempted murder by a jury in the circuit court of Will County, and sentenced to concurrent prison terms of 10 to 20 years and 20 to 40 years, respectively. Defendant, 15 years old at the time a juvenile delinquency petition was filed in the instant case, was tried as an adult. The appellate court affirmed the conviction for armed robbery but reversed and remanded for a new trial on the attempted-murder charge. (68 Ill. App. 3d 44.) We allowed the State’s petition for leave to appeal (65 Ill. 2d R. 315). Two issues are raised. First, whether the convictions must be overturned because the circuit court’s order permitting the defendant to be tried “under the criminal laws” (Ill. Rev. Stat. 1973, ch. 37, par. 702 — 7) was entered after the grand jury indicted the minor defendant. Second, whether the circuit court’s attempted-murder and definitional murder instructions were in error so as to necessitate reversal of the conviction for attempted murder.

On November 5, 1975, defendant and George Williams, an adult who pleaded guilty to armed robbery and was found guilty of attempted murder in a separate trial, were armed with a shotgun and revolver, respectively, when they stopped their car behind the car of David Barker in a park. Barker, who was waxing his car when defendant and Williams approached, testified that the two took his wallet, and ordered him to drive his car with Williams seated beside him, and to follow the defendant, who drove the other car. After arriving at an abandoned house and as Barker was marched toward it, he felt several blows on the back of his head. He fell to the ground, where he felt another blow on the back of his head. He recalled being dragged, losing his glasses, being held in front of a flight of stairs, yelling for help, breaking a window, lying in the front yard of the abandoned house, and being in the hospital.

Barker’s treating physician testified Barker suffered four gunshot wounds at the back of his head, and his “back was peppered with buckshots.” An Illinois Bureau of Investigation expert witness said that, although tests were inconclusive, the defendant had more than normal amounts of the residue of firearms on his hands.

The defendant admitted participating in the robbery but denied participating in the shooting. He testified as follows. After taking Barker’s wallet, Williams and the defendant brought Barker to the abandoned house. Williams struck Barker on the back of the head with his gun. Both of them dragged Barker to the house, where Williams pushed Barker down a flight of stairs. Williams then gave the defendant a shell for the shotgun the defendant held and told the defendant to shoot Barker. The defendant refused, fled in Barker’s car, abandoned it, but returned to it with Williams, whom he encountered after leaving Barker’s car. The defendant said he did not know what Williams would do or had done after he left the abandoned house.

We turn to the first issue. On November 6, 1975, a juvenile delinquency petition was filed against the defendant. On November 19, 1975, the State moved to prosecute the defendant under the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 1 — 1 et seq.). The grand jury returned a true bill of indictment for armed robbery and attempted murder on December 12, 1975. The circuit court, on December 29, 1975, held a hearing on the State’s motion to transfer. Defendant moved to quash the indictment for violation of the Juvenile Court Act’s prohibition against criminal prosecution of minors (Ill. Rev. Stat. 1973, ch. 37, par. 702 — 7). The defendant contends the circuit court’s failure to quash, and the appellate court’s affirmance, are reversible error. We disagree. Section 2 — 7(3) of the Juvenile Court Act provides:

“(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.
(a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority. ***” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 37, par. 702-7(3).)

We believe error has been committed by the return of an indictment prior to the circuit court’s rendering a decision on the transfer motion, but we do not believe this error is reversible error here. The record unequivocally shows that the circuit court, in the course of its hearing on the motion and on the basis of its specific conclusions, made its findings “independent of” the grand jury’s indictment. Moreover, the court specifically applied the six factors set out in section 2 — 7, emphasizing the first factor: “whether there is sufficient evidence upon which a grand jury may be expected to return an indictment.” The evidence the court had before it at the time of the hearing, the record again unequivocally shows, justified the court’s transfer even though subsequent to the indictment. We do not condone this action, but it just is not reversible error here. The “ultimate determination” of prosecuting a juvenile as an adult is a judicial function; and the judiciary made that determination here, unlike in People v. Rahn (1974), 59 Ill. 2d 302, 304. We agree with the appellate court on this issue. 68 Ill. App. 3d 44, 49.

The second issue, addressed by the appellate court, involves the propriety of the specific instructions given on attempted murder. The State argues this issue has been waived because the defendant failed to preserve it in his post-trial motion. The State concedes, on the basis of People v. Harris (1978), 72 Ill. 2d 16, that the instructions were erroneous because the definitional instruction on murder — as distinguished from the “issue” or directive instruction on attempted murder — refers to both intent to do bodily harm and knowledge that one’s acts may cause, or create the possibility of, bodily harm. Nevertheless, the State contends the error was not so plain, substantial or grave as to warrant our taking notice of it (58 Ill. 2d Rules 451(c), 615(a)). [People v. Roberts (1979), 75 Ill. 2d 1.) The intent to kill, the State continues, was clearly evidenced by the acts of the perpetrator and conceded to have existed by the defense, and only the factual question of whether the defendant was the perpetrator was at issue; the evidence was such that the defendant would have been found guilty even if correct instructions had been given [People v. Ward (1965), 32 Ill. 2d 253, 256). Because this issue remains a significant one and because the defendant here, unlike in Roberts above, objected to the instruction, we address ourselves to it.

Three instructions, affecting the charge of attempted murder, were given. First, the definitional attempted-murder instruction:

“A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder.
The crime attempted need not have been committed.”

Second, the directive attempted-murder instruction:

“To sustain the charge of attempt murder, the State must prove the following propositions:
that the defendant performed an act which constituted a substantial step towards the commission of the crime of murder;
that the defendant did so with intent to commit the crime of murder.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

Third, the definitional murder instruction:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
he intends to kill or do great bodily harm to that individual; or
he knows that such acts will cause death to that individual; or
he knows that such acts create a strong probability of death or great bodily harm to that individual.”

The offense of attempted murder requires the mental state of specific intent to commit murder, to kill someone. Section 8 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4(a)) clearly sets this out: “A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Knowledge that the consequences of an accused’s act may result in death (or grave bodily injury), or intent to do bodily harm, is not enough; specific intent to kill is required (People v. Trinkle (1977), 68 Ill. 2d 198, 201-04). Both the indictment and the instructions must unambiguously reflect this. (68 Ill. 2d 198, 201-04.) The offense of murder, on the other hand, does not always require specific intent to kill. Specific intent to do grave bodily harm or knowledge that one’s actions will cause or could cause death or bodily harm are also sufficient mental states for murder. Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a).

Although we do not agree the error was effectively waived, we do agree with the State that there was not grave or substantial error. “Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.” (People v. Ward (1965), 32 Ill. 2d 253, 256. Accord, People v. Truelock (1966), 35 Ill. 2d 189, 192. See also People v. Stromblad (1978), 74 Ill. 2d 35, 42; People v. Farnsley (1973), 53 Ill. 2d 537, 546. Cf. People v. Chupich (1973), 53 Ill. 2d 572, 579.) The defendant maintains, however, that this court has departed from the rule in Ward and Truelock and refrained from evaluating the evidence in cases where “the error was so fundamental” (People v. Stromblad (1978), 74 Ill. 2d 35, 42). It is true that in People v. Trinkle (1977), 68 Ill. 2d 198, People v. Harris (1978), 72 Ill. 2d 16, and People v. Tamayo (1978), 73 Ill. 2d 304, this court held the convictions should be reversed, and did not evaluate the evidence to determine whether the evidence was so overwhelming as to withstand the damage of the erroneous instructions on attempted murder. However, in those cases, the formation of intent to kill was at issue. Whether the defendants sufficiently formed the intent to kill was highly questionable. The facts in those cases, to the extent set out in this court’s opinions, either are unclear as to the formation of the intent to commit murder or demonstrate a lack of intent. Here, the intent to commit murder was blatantly evident from the circumstances [People v. Koshiol (1970), 45 Ill. 2d 573, 578), even admitted by defense counsel. The victim was shot four times in the head, peppered with buckshot in his back, and had a shotgun pointed at him by the defendant. The only question was whether the defendant was the perpetrator or one of the perpetrators. The jury found he was. We would be remiss, on these facts, to hold the conviction should be reversed. Not only is the instant case distinguishable from Trinkle and its progeny (because the intent to kill was so evident here), but the error was minimized, unlike in Trinkle, by the trial court’s giving an accurate directive attempted-murder instruction, followed by an inappropriately complete definitional murder instruction. We conclude the error in the jury instructions here was harmless. Accord, People v. Seats (1979), 68 Ill. App. 3d 889; People v. Lindsay (1978), 67 Ill. App. 3d 638.

For these reasons, the judgment of the appellate court is affirmed in part and reversed in part. Since other errors were assigned in the appellate court which were neither passed upon there nor argued here, the cause is remanded for their consideration.

Affirmed in part and reversed in part and remanded, with directions.


author: MR. JUSTICE MORAN

text:
    (No. 50848.
    ARCOLE MIDWEST CORPORATION, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Alvin Venters, Appellant).

      Opinion filed May 22, 1980.

      Warren E. Danz, of Peoria, for appellant.
    Cohn, Lambert & Ryan, Ltd., of Chicago (Louis J. Cohn and Howard S. Fleishman, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

An arbitrator awarded permanent total disability compensation to claimant, Alvin Venters, for a back injury which arose out of and in the course of his employment with respondent, Arcóle Midwest Corporation. After hearing additional testimony, the Industrial Commission sustained the decision of the arbitrator. Upon review, however, the circuit court of Macon County reversed, and claimant now appeals. The sole issue is whether the Commission’s finding of total and permanent disability is against the manifest weight of the evidence.

On September 27, 1972, claimant, a 34-year-old construction laborer for respondent, slipped and twisted his body while helping a coworker carry a water pump across a muddy field. Although claimant noticed soreness in his back and legs, he finished working that day. After experiencing stiffness and pain upon getting out of bed the next day, claimant filled out an accident report at work. Respondent sent him to Dr. H. O. Hoffman, who examined the claimant and prescribed therapy for his lower back. Dr. Hoffman permitted claimant to return to work after several days of therapy but, upon returning to work, claimant’s pain and stiffness increased. He treated himself with a heating pad and hot baths. On November 15, 1972, claimant was laid off work because of cold weather. He has not worked since that date although, in early 1973, he tried, unsuccessfully, to obtain work both with respondent and through his union hall. Upon Dr. Hoffman’s recommendation, claimant was examined by Dr. Arthur Sweet on February 13, 1973. He saw Dr. Hoffman a few more times until June, and, at respondent’s request, was examined by Dr. Joseph Ankenbrandt in December. In December, too, claimant began a two-month period of treatment by Dr. Mormino, a chiropractor.

On February 20, 1974, claimant went for treatment to Dr. Walter Petersen, who ordered that a myelogram be performed. After analyzing the myelogram results, Dr. Petersen prescribed back surgery. Upon admission to the hospital, claimant was diagnosed as having a herniated intervertebral disc at L-4/L-5 and, on May 5, 1974, Dr. Petersen performed a laminectomy and spinal fusion. Claimant was discharged on May 18, but was readmitted the next day because of post-operative laminectomy pain. He was discharged on May 24.

At the arbitration hearing, claimant, who has a 10th-grade education, testified that he had been a laborer for seven years, had previously been a factory worker and had been in the armed forces. He has no other job or trade skills. Claimant stated that, at the time of the hearing, he continues to experience constant aching and burning pain, suffers pain after being on his feet for even a short period of time, has difficulty going up and down stairs, and has stiffness in his lower back and legs. After sitting for a few hours, claimant gets pain and stiffness in his back, neck and shoulders. On cross-examination, claimant admitted performing some activities around the house and to occasionally having engaged in nonstrenuous recreational activities, all for short durations of time.

Dr. Horacio Rivero, a physician and surgeon, testified on behalf of claimant at the arbitration hearing. He had examined the claimant on August 13, 1973, and on December 17, 1974. On the latter date, which was after claimant’s surgery, Xrays revealed a narrowing of the intervertebral space at the site of the surgery. Dr. Rivero diagnosed claimant as having a “protrusion of nuclear pulposis in the lumbar spine” which has caused lower back tenderness and muscle spasms, radiating down the left side and upward in the spine between the shoulder blades. Claimant has limitations in bending, straight leg raising and hip rotation. In Dr. Rivero’s opinion, claimant’s disability is permanent and he will not be able to return to gainful employment as either a laborer or dispatcher.

Respondent introduced several reports and other documents into evidence. Dr. Hoffman reported on October 20, 1972, that if claimant’s symptoms did not completely subside, “he may represent an early disc syndrome.” This prognosis was substantially corroborated in a letter dated February 15, 1973, to Dr. Hoffman from Dr. Sweet. Neither doctor, however, thought that active treatment was necessary. Similarly, in a letter to respondent’s insurer, dated December 10, 1973, Dr. Ankenbrandt stated that he had no specific recommendations after examining claimant, as he found no significant objective evidence of musculoskeletal impairment. Respondent further introduced claimant’s discharge summary following surgery, signed by Dr. Petersen, which stated, “Prognosis is excellent for life and health, guarded as to degree of sustained relief of symptoms,” and in the discharge summary following claimant’s readmission to the hospital, in which Dr. Petersen noted:

“This patient was readmitted for control of pain that could not [seem] to be kept under control at home and following a few days of rest and immobilization with corset, he was able to leave the hospital and try it again either at home or at a convalescent hospital.”

On February 9, 1976, claimant testified further at the hearing on review before the Commission. It was revealed that Dr. Petersen, who had last seen claimant during September of 1975, had recommended further surgery which was scheduled for February 18, 1976. Claimant also testified to continuing severe pain and stiffness in his lower back, hips, legs and feet. He stated that he has not returned to work, nor has any doctor released him to return to work.

The rules governing the issue in this case are well settled. An employee is totally and permanently disabled within the meaning of the Workmen’s Compensation Act when he is unable to make some contribution to industry sufficient to justify the payment to him of wages. (Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 268; A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 487; C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278.) The employee, however, need not be reduced to a state of total physical or mental incapacity or helplessness before he can be said to be totally and permanently disabled. [Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 269; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 360.) Rather, an employee is totally disabled when he cannot perform any services except those which are so limited in quantity, dependability or quality that there is no reasonably stable market for them. Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275; Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 269; C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278.

The extent or permanency of the employee’s medical disability is a question of fact, and the Commission’s determination will not be set aside unless against the manifest weight of the evidence. (Gates Division, HarrisIntertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 270; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 361.) In its memorandum opinion, the circuit court, which reversed the Commission’s finding of total and permanent disability, discounted Dr. Rivero’s opinion that claimant was totally and permanently disabled. The court did so solely because there was no evidence that either of Dr. Rivero’s examinations of claimant was for the purpose of treatment, and that none of the treating physicians stated that claimant was totally and permanently disabled. There is no requirement, however, that the Commission give greater weight to testimony of treating physicians than to that of a physician who has examined the employee solely for the purpose of testifying. Moreover, the medical evidence introduced by respondent was not necessarily inconsistent with the Commission’s finding. Dr. Petersen’s report introduced by respondent noted claimant’s continuing pain following surgery, and, according to claimant, further surgery was scheduled. The only other post-operative medical evidence introduced came from Dr. Rivero. Thus, even if the Commission believed that claimant was not totally and permanently disabled prior to his back surgery, it could reasonably have concluded from the evidence of claimant’s condition following surgery, and from the nature of his employment, his age, training, capabilities and unsuccessful attempts to find work, that claimant had become totally and permanently disabled. (See Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275-76; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362.) Respondent made no attempt to show what work, if any, within claimant’s limited capacity, was reasonably available. Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 276; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362-63.

The Commission’s determination that claimant was totally and permanently disabled was not against the manifest weight of the evidence, and should not have been set aside. Accordingly, the judgment of the circuit court is reversed and the award is reinstated.

Judgment reversed; award reinstated.


author: MR. JUSTICE RYAN

text:
    (No. 52546.
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Susan Glicksman, Appellee).

      Opinion filed May 22, 1980.

      Michael J. Murray, of Chicago (Reginald D. Taylor, of counsel), for appellant.
    Bernard A. Wolfe & Associates, Ltd., of Chicago (Lannie A. Pollans, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Claimant, Susan Glicksman, is employed as an elementary school teacher for the board of education of the city of Chicago (the board). On May 19, 1977, she sustained injuries to her ankle while participating in an after-school volleyball practice game. Claimant filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The arbitrator entered an award for permanent partial loss of use of the right foot in addition to an award for necessary medical expenses. The Industrial Commission affirmed the decision of the arbitrator, and the Cook County circuit court confirmed the decision of the Industrial Commission. The sole issue before this court is whether claimant’s injury was sustained in an accident arising out of and in the course of employment.

At the time of the injury, claimant was employed at the Crispus Attucks Elementary School as a first-grade teacher. Her assigned hours were 8:30 a.m. to 3:15 p.m. One of the school’s two gym teachers had requested that each teacher participate in a volleyball game between the teachers and the school’s older students. Claimant, along with approximately 10 of the school’s 45 teachers, agreed to participate. The game was to be held during school hours in the gymnasium on May 19 or 20, 1977. On the day preceeding the game, the teachers had a volleyball practice game. The practice was conducted after school in the gymnasium. The equipment used was furnished by the school. The school’s principal was notified of both the practice and the game, and she acquiesced in the use of the school’s facilities.

At the volleyball practice game, claimant fell when attempting to hit the ball. Later medical diagnosis revealed that she sustained an avulsion fracture of the lateral malleolus of the right ankle with limitation of motion. Neither party disputes the nature and extent of claimant’s injury. The board does, however, contest the Commission’s finding that claimant sustained an accidental injury arising out of and in the course of employment.

During the last term of court, we had occasion to consider whether a social-recreational activity was within the course of employment. In Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182, the employee died in an automobile accident subsequent to an employee’s club golf outing and banquet. In order to ascertain whether the activity fell within the course of employment, we examined a variety of factors which included the extent of employer organization and sponsorship; pressure on the employees to participate; employer supervision; and benefit to the employer through improved employer-employee relations. (78 Ill. 2d 182, 187.) Applying these factors in that case, we found there to be no greater employer involvement than that which was present in the factually similar case of Keystone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160. Accordingly, we found the Commission’s award to be contrary to the manifest weight of the evidence and reversed the circuit court judgment confirming the award. Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182, 186.

In this appeal, both parties contend that this court is again presented with a situation requiring a determination of the degree of employer involvement in an employee recreational activity. In accordance with this characterization of the case, the employer’s brief includes cases in support of its position of insufficient employer involvement. (Hydro-Line Manufacturing Co. v. Industrial Com. (1958), 15 Ill. 2d 156; Keystone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160.) Similarly, the employee relies upon cases wherein a contrary conclusion is reached. Jewel Tea Co. v. Industrial Com. (1955), 6 Ill. 2d 304; Lybrand, Ross Bros. & Montgomery v. Industrial Com. (1967), 36 Ill. 2d 410.

The mere fact that the activity involved is a recreational one does not necessarily trigger the analysis employed in the cases referred to above. Inasmuch as this court does not view this case as one involving an injury sustained in a recreational activity outside of the employment, we need not determine the degree of employer involvement. At the hearing before the arbitrator, the employee testified that the faculty-student volleyball game was a school-sponsored activity. It was to be conducted on school property during school hours. Marcella Davis, the principal of Crispus Attucks Elementary School, was informed of the activity and acquiesced in the use of the school’s facilities. She did not protest the inclusion of the volleyball game in the school program. She in fact testified at the hearing before the arbitrator that such activities have taken place in the past. She further testified that the activity could serve to enhance the relationship between the staff and students. It was her opinion, however, that the volleyball game did not improve the teacher-student relationship. The principal stated that the volleyball practice may have been scheduled during school hours; specifically, she suggested that the practice could have been scheduled during a professional period or during a lunch period.

Findings of fact are within the province of the Industrial Commission and are not to be disturbed on review unless contrary to the manifest weight of the evidence. (Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182, 190.) Our review of the record discloses that the upcoming faculty-student volleyball game was to be played during school hours on school grounds using school equipment. The principal knew of the activity and did nothing to discourage it. It was not unreasonable for the Commission to infer from these facts that the activity was part of the school program. We note that the teacher voluntarily participated in the activity, was injured after working hours, and was injured in a practice game rather than in the teacher-student game. These facts do not change the result reached; that is, it was not unreasonable for the Commission to conclude that the claimant was injured in an employment activity. The Commission may draw inferences from both direct and circumstantial evidence, and these permissive inferences will not be discarded merely because some other inference might have been drawn. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19.) Accordingly, the judgment of the Cook County circuit court is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52382.
    LEONARD BOLNICK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Shirt Tales, Ltd., Appellee).

      Opinion filed May 22, 1980.

      Gordon, Schaeffer & Gordon, Ltd., of Chicago (Gilbert W. Gordon, of counsel), for appellant.
    Gifford, Detuno & Gifford, Ltd., of Chicago (Thomas W. Gifford, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On August 16, 1976, claimant, Leonard Bolnick, fell in his company warehouse injuring his wrist. An Industrial Commission arbitrator awarded compensation, computing it on the basis of annual earnings of $51,620.92 and an average weekly wage of $997.71. On review the Industrial Commission found the yearly earnings to be $16,800 and the average weekly wage to be $323. Certiorari to the circuit court of Cook County resulted in confirmation of the Commission award. The case is before us pursuant to claimant’s appeal under our Rule 302(a). 73 Ill. 2d R. 302(a).

The sole issue presented here is the nature of a yearly lump sum payment by respondent corporation to claimant. If that payment is properly regarded as a part of a salary agreed upon by claimant and respondent, it is includable as “earnings” in computing the compensation due claimant for his injury. If, however, as respondent argues, such payments represented a return of claimant’s capital, or a dividend, they are not “earnings” within the statutory definition of that term.

Claimant was the only witness. He testified that he had been employed by Woodfield Shirt Tales, Ltd., for three years; that he was its sole stockholder, served as its president, and that he and his wife comprised the company’s board of directors. He also stated that the company operated on an August 1 to July 31 fiscal-year basis. His testimony regarding his salary arrangements is much less clear. He stated on direct examination that he was paid an annual salary of “Approximately forty-five to fifty thousand dollars, which is paid out to me on the basis of a check per month as a draw and settlement at the end of the fiscal year.” This procedure, he added, had been used during his three years’ employment with the company. When asked his wages “for the last fiscal year [8/1/75 to 7/31/76],” he replied, “Approximately forty-five to fifty thousand dollars, I am not sure.” He believed his wages the year before that had been “about forty thousand.” After claimant stated the circumstances surrounding the accident and injury, claimant’s counsel again inquired as to how he was paid. In response to those questions claimant testified that during the last fiscal year he was paid $2,500 per month plus a $25,000 “makeup” on July 31, at the end of the fiscal year. On cross-examination, however, claimant was apparently shown exhibits not in the record before us, which indicated payment to him in August 1975 of $1,866.66, a like amount in September, $25,000 in October, nothing in November or December, and $2,500 during the balance of the fiscal year except in February when $3,000 was paid. Claimant denied the lump-sum-payment checks represented profits from the business, stating their amounts represented the difference between his salary and the total of the monthly checks. The record does contain respondent company’s exhibit No. 1, a letter from St. Paul Insurance Company, which apparently wrote respondent’s workmen’s compensation insurance, seeking information regarding the 1975 and 1976 wages of respondent. Apparently James Steidl, identified in respondent’s brief as the company comptroller, responded showing the 1975 “actual salary was $16,799.94” and the 1976 “actual salary was $28,000” with a $25,000 “bonus” each year. This information from the company comptroller appears to have been the source of the Commission’s $16,800 earnings figures. No copies of corporate meeting minutes or records concerning employment contracts or compensation were introduced or referred to.

Claimant testified as follows regarding the circumstances of the injury:

“Well, I left my office, walked into the company store, in the warehouse store and they were quite busy and as my usual habit I began to wait on customers to help them out and one of the customers requested a particular shirt, which we do not have in the store itself, I had to go into the warehouse to get it. I went in the warehouse and got the shirt and as I was returning I slipped on a piece of paper on the floor, went up in the air. I came down on my arm.”

Under our Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) compensation for temporary total incapacity and the permanent partial loss of the use of a hand is computed on the basis of a percentage of the injured worker’s average weekly wage (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(b)) determined pursuant to the provisions of section 10 (Ill. Rev. Stat. 1975, ch. 48, par. 138.10). Section 10 provides:

“(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.
* * *
(g) Earnings, for the purpose of this section, shall be based on the earnings for the number of hours commonly regarded as a day’s work for that employment, and shall exclude overtime earnings. The earnings shall not include any sum which the employer has been accustomed to pay the employee to cover any special expense entailed on him by the nature of his employment.”

None of our earlier decisions has considered whether “earnings” as used in subparagraph (g) includes a large year-end bonus paid to one who is the president, director and sole stockholder of a close corporation. While the claimant in B. W. Sales Co. v. Industrial Com. (1966), 35 Ill. 2d 418, was in a similar position, there is no indication that the amount of his bonus was included in computing his compensation, or that any question was raised regarding it. Prior decisions of this court have, however, adopted the “dual capacity” doctrine as to corporate executives and clearly establish that one who is sole stockholder, president and director of a corporation may still be considered in an employer-employee relationship with the corporation if at the time of injury he is performing the work of an ordinary employee as distinguished from discharging his executive responsibilities. (Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill. 2d 517, 528; B. W. Sales Co. v. Industrial Com. (1966), 35 Ill. 2d 418; Stevens v. Industrial Com. (1931), 346 Ill. 495.) It is clear that at the time he fell claimant was acting in the capacity of an ordinary salesperson. As such he was properly held to be an employee.

The more difficult question is whether the $25,000 claimant testified he received as a part of his salary must be included in computing his annual earnings. There seems little doubt that the usual type of annual bonus representing a modest fraction of the ordinary employee’s yearly salary should be included in computing annual earnings. 2 A. Larson, Workmen’s Compensation sec. 60.12 (1976) and cases there cited; but see Orlando v. Schiavo Bros. (1973), 10 Pa. Commw. 86, 309 A.2d 84.

There is much greater doubt, however, as to the result in a situation such as the one before us, where the “bonus” may exceed the total of the monthly paychecks, and the recipient is the sole stockholder, president and director of the corporation. As Professor Larson points out, “when preponderant stock ownership is so used that the stockholder is for practical purposes the alter ego of the corporation, the compensation acts, which are inclined to be realistic rather than technical, will often disregard the corporate entity and treat the stockholder as an employer.” (1C A. Larson, Workmen’s Compensation sec. 54.22 (1980); see, e.g., Ben-Jay Food Distributors v. Warshaw (Fla. 1954), 70 So. 2d 564.) Were we to abandon, as Larson urges, the “dual capacity” rule (1C A. Larson, Workmen’s Compensation sec. 54.21 (1980)), claimant here might well be considered an employer. Since, at least for now, we adhere to our dual-capacity doctrine, we consider the question of inclusion of claimant’s $25,000 bonus in that context. We are immediately confronted with the incongruity inherent in categorizing claimant as an employee only because he was engaged in nonexecutive duties when injured, and then computing his compensation for that injury on the basis of his salary as president. It is far more logical and consistent with the purpose of the Workmen’s Compensation Act to compute his compensation for the injury on the basis of the employment which qualified him for coverage under the Act, without which he would receive no compensation at all. Information supplied by the company comptroller indicated claimant’s “salary” to have been $16,800, and the Commission computed compensation on that basis. There is no evidence as to the salaries of other sales clerks, and respondent has not questioned the Commission’s action. If sales persons were paid at higher rates, which seems quite unlikely, the burden was upon claimant to establish that fact. Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 269, 272.

We accordingly hold that the Commission’s findings were not contrary to the manifest weight of the evidence and affirm the judgment of the circuit court of Cook County.

Judgment affirmed.


text:
    (No. 52415.
    DANIEL J. CRADDOCK, Appellee, v. THE BOARD OF EDUCATION OF ANNAWAN COMMUNITY UNIT SCHOOL DISTRICT NO. 226, HENRY COUNTY, Appellant.

      Opinion filed May 22, 1980.

      Robbins, Schwartz, Nicholas & Lifton, Ltd., of Chicago (Allen D. Schwartz. Lorence H. Slutzky and Elinor P. Swiger, of counsel), for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellee.
    Julia Quinn Dempsey and Eugene M. Daly, of Springfield, for amicus curiae State Superintendent of Education.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The plaintiff, Daniel J. Craddock, a teacher and assistant football coach, cursed at a student during football practice on September 9, 1975. The plaintiff was sent a letter on September 15, 1975, by the defendant school board. The letter informed the plaintiff that he had been suspended for three days without pay, but that the suspension would not become effective until September 29, 1975, to enable the plaintiff to perfect a review of the decision by the school board. The plaintiff appeared before the board on September 25, 1975, to object to the jurisdiction of the board to suspend him. The board ordered that the plaintiff be suspended for three days without pay. On November 3, 1975, the plaintiff filed a complaint in the circuit court of Henry County seeking $155.58 in damages for the salary he lost while suspended. The circuit court thereafter denied the board’s motion for summary judgment. Subsequently, the court entered an order granting the plaintiff’s motion for summary judgment. The circuit court’s order was appealed to the Appellate Court for the Third District. The appellate court, with one justice dissenting, affirmed the circuit court. (76 Ill. App. 3d 43.) We allowed the board’s petition for leave to appeal. 73 Ill. 2d R. 315(a).

The appellate court held that section 24 — 12 of the School Code, which sets out a procedure a school board must follow to dismiss or remove a teacher, must be construed to permit a temporary dismissal, that is, a suspension. The court went on to conclude that since the plaintiff was not afforded the procedural protection of section 24 — 12, particularly a hearing before an “independent hearing officer,” the plaintiff’s suspension was improper. (76 Ill. App. 3d 43, 46.) The court accordingly affirmed the trial court’s judgment in favor of the plaintiff.

Another recent appellate court decision reached a contrary result. In Kearns v. Board of Education (1979), 73 Ill. App. 3d 907, the appellate court, in reliance upon the reasoning of the dissent in Craddock, concluded that section 24 — 12, since it involves permanent termination of a teacher’s employment, did not impliedly authorize suspension. The court continued that, nonetheless, the due process rights of the plaintiff therein had been observed; also, the court decided the plaintiff’s unspecified first amendment rights had not been infringed. The court decided that, in its opinion, there was nothing procedurally or substantively invalid concerning the defendant board’s suspension of the teacher. The court therefore affirmed the trial court’s rendition of judgment in favor of the defendant.

In the instant case, the board contends that section 10-20.5 (Ill. Rev. Stat. 1975, ch. 122, par. 10-20.5), which empowers a school board to make rules, impliedly authorizes suspension of school teachers. Section 10 — 20.5 provides that school boards possess, as one of their “duties” (Ill. Rev. Stat. 1975, ch. 122, par. 10 — 20) the power “ [t] o adopt and enforce all necessary rules for the management and government of the public schools in their district” (Ill. Rev. Stat. 1975, ch. 122, par. 10 — 20.5). The board argues that the “policies” which it has enunciated regarding, inter alia, the conscientious and professional fulfillment of teaching duties, and the assumption of fair and considerate attitudes towards students, carry with them the implied power to discipline teachers when those “policies” are violated. Whether a school board may promulgate rules which impose disciplinary sanctions, including suspension, is not at issue here, however; we expressly decline to decide whether school boards are so empowered. The fact is that the board herein did not adopt a rule authorizing the suspension of teachers.

Accordingly, for the reason stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 51725.
    EAGLE SHEET METAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Raimondo Genova, Appellee).

      Opinion filed May 22, 1980.

      Burgeson, Laughlin, Cunningham & Smith, of Chicago (John E. Cunningham and Andrew Marzal, of counsel), for appellant.
    James V. Tufano, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In this workmen’s compensation case the employer, Eagle Sheet Metal Company (hereafter Eagle), appeals directly to this court under our Rule 302(a) (73 Ill. 2d R. 302(a)). The appeal is taken from the Cook County circuit court order confirming the Industrial Commission’s award, which affirmed the finding of the arbitrator that the claimant, Raimondo Genova, is permanently and totally disabled. The employer does not contest the nature and extent of the injury. The sole issue presented by this appeal is whether the finding that the claimant sustained accidental injuries arising out of and in the course of employment on April 17, 1975, is contrary to the manifest weight of the evidence.

Claimant was employed by Eagle in December 1973 and was assigned to the tool room to fix dies. He was thereafter reassigned to the shipping room, where his job consisted of lifting heavy steel cabinets and placing them in boxes. On February 13, 1974, Genova suffered an acute lumbosacral strain while moving heavy equipment. He notified his foreman, who in turn notified the personnel manager. Claimant was then given a slip for medical treatment at Lehigh Medical Center, where he received medication, a physical examination and had an X ray taken. He did not lose time from work. He was, however, assigned light duty for two weeks following the accident. No claim for compensation benefits was filed.

On September 13, 1974, claimant sustained a second injury to his lower back while turning a die. He again notified his employer and received medical attention at Lehigh Medical Center. He was treated by Dr. Vincent J. Greco. Claimant returned to work immediately after the accident, but again was assigned light duty for two weeks. An application for adjustment of claim was filed for this injury.

On April 17, 1975, claimant worked the 7 a.m. to 3:30 p.m. shift. According to the claimant’s testimony at the hearing before the arbitrator, at approximately 2 p.m. he experienced pain in his lower back, arm and leg while he was lifting a steel cabinet. Genova continued to work until approximately 3 p.m. At that time he again experienced great pain. He went to the restroom and remained there until the end of the work shift. He left work without informing anyone of the pain he was experiencing. That evening he called Dr. Greco and advised him of his condition. Dr. Greco recommended that claimant take hot baths with Epsom salts. Genova also testified that he called Eagle the morning of April 18, 1975, and informed an unidentified male of his injury. Claimant did not return to work after the April 17, 1975, accident.

Claimant remained under the care of Dr. Greco until May 9, 1975. On that date, he was taken to St. Mary of Nazareth Hospital by the police. Claimant testified that he was unable to walk and was experiencing great pain. While hospitalized, Genova underwent a lumbar laminectomy to correct a herniated intervertebral disc. The surgery was performed on May 20, 1975, by Dr. Marshall Matz. After his discharge from the hospital, claimant received follow-up care from Dr. Matz and continued to consult Dr. Greco. Genova complained of pain up until the time of the compensation hearings.

An additional application for adjustment of claim was filed for the claimant’s injuries sustained in the April 17, 1975, incident. The arbitrator, after finding that the injuries sustained in the September 1974 incident were compensable, consolidated both claims for a single determination of the nature and extent of the claimant’s injuries as of April 17, 1975.

Several doctors testified at the arbitration hearing. Dr. Robert C. Busch testified for claimant. Based upon two physical examinations and two X rays, it was his opinion that claimant’s condition subsequent to April 17, 1975, was permanent and causally related to all of the work-related accidents. Dr. Busch stated that it would be impossible to determine the degree to which any one of the incidents may have caused the trauma, but that the last incident may have aggravated a preexisting disc problem. On cross-examination, Dr. Busch revealed that his notes did not refer to an April 17, 1975, accident.

Dr. Greco testified for the claimant and stated that on April 17, 1975, he treated the claimant for pain in his back and leg. Dr. Greco did not have a record of a work injury on that date. Similarly, Dr. Greco’s records did not indicate an injury suffered at work on September 13, 1974. He testified that he was orally informed, however, of the September 1974 accident. On April 19, 1975, Dr. Greco sent a note to Eagle informing the company of Genova’s claim of continued pain and inability to work.

Dr. Warren Clohisy next testified for the employee. He stated that on May 3, 1976, he had taken Genova’s history. The history taken revealed that claimant had injured his back in September 1974 while lifting heavy sheet metal. Claimant further informed Dr. Clohisy that he continued to work until April 1975. At that time, claimant stated that the pain became so intolerable that he collapsed at home and was taken to a hospital. Based upon the medical testimony, the records of Dr. Matz and claimant’s testimony, the arbitrator found the claimant to be permanently and totally disabled.

On review, Eagle introduced medical records of the Lehigh Medical Center. The company also introduced into evidence the application for coverage under Blue Cross - Blue Shield and the Fort Dearborn Life Insurance Company.

The thrust of Eagle’s argument on this appeal is that the finding that there was an accident at work on April 17, 1975, is contrary to the manifest weight of the evidence. Eagle contends that claimant’s behavior supports an opposite conclusion: Genova did not immediately report the injury to his employer; on the applications for medical benefits under both the Fort Dearborn Insurance and the Blue Cross - Blue Shield policies, claimant and Dr. Greco indicated that the April injury was not a workmen’s compensation case; and the accident date alleged in claimant’s United Auto Workers’ grievance proceeding for his January 1976 employment discharge was September 13, 1974. According to Eagle, the only evidence supporting the arbitrator’s finding that there was a work-related injury on April 17, 1975, was the self-serving testimony of the claimant.

Findings of fact are within the province of the Industrial Commission and are not to be disturbed on review unless contrary to the manifest weight of the evidence. (Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182, 190; A. O. Smith Corp. v. Industrial Com. (1976), 65 Ill. 2d 224, 228.) After a review of the record, we cannot say that the Commission’s finding was contrary to the manifest weight of the evidence. The claimant’s delay in reporting the accident was slight, and Eagle does not assert lack of notice as an issue on appeal. Such delay does not necessarily lead to the conclusion that the accidental injury did not occur. Nor does the fact that errors were made in the insurance forms lead to such a conclusion. Raimondo Genova came from Italy in 1968 and, at the time of the compensation hearings, he did not speak or write fluent English. Dr. Greco testified that he was unaware of any claim filed at the time he completed the forms. We note, in any event, that such action by the doctor would not be binding on the claimant. The omission of the accident date in claimant’s union grievance proceeding is of no import to this case. This is particularly true where Eagle merely alludes to the extrajudicial proceeding; no transcript or any other official documents concerning the grievance proceeding was introduced into evidence. Finally, we note that claimant’s testimony was the only direct evidence of the April 1975 accident. This is, however, not sufficient to preclude a finding that the accident actually occurred. Circumstantial evidence was introduced in the proceedings below which supports the direct evidence presented by claimant concerning the April 17, 1975, accident. As noted above, Dr. Greco testified that his records did not reflect an industrial injury on April 17, 1975. Nor did the doctor have a written record of a work-related injury in September 1974. He stated that claimant had verbally informed him of this accident. The parties do not dispute the fact that an accident occurred at work on September 13, 1974. Thus, Dr. Greco’s failure to record an accident does not necessarily lead to the conclusion that the accident did not occur. It would be reasonable to infer, first, that Dr. Greco does not usually record work accidents and, second, that claimant suffered an accident at work on April 17, 1975, since he went to Dr. Greco for treatment on or about that date. Other circumstantial evidence from which the Commission could infer that claimant suffered a work-related accident on April 17, 1975, includes Dr. Clohisy’s testimony. Claimant had informed this doctor that he collapsed in pain in April 1975 and was unable to work thereafter. The Commission may draw inferences from both direct and circumstantial evidence, and these permissible inferences will not be discarded merely because other inferences might have been drawn. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19.) Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.