author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, ex rel. John J. Cronin, Plaintiff-Appellee, v. William E. Cahill, Reginald J. DuBois and Quentin J. Goodwin, Members of and Constituting the Civil Service Commission of the City of Chicago, and Orlando W. Wilson, Superintendent of Police of the City of Chicago, Defendants-Appellants.
    Gen. No. 52,785.
    First District, Fourth Division.
    July 30, 1969.
    Rehearing denied and supplemental opinion December 31, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellants.
    Duffy and Jordan, of Chicago (Thomas J. Duffy, Forbes E. Jordan and John J. Turner, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Relator filed a petition for a writ of mandamus on June 19, 1967, against the defendants to compel them to certify and appoint him as a Captain of the Chicago Police Department. Defendants appeal from a judgment after trial awarding such a writ to the relator, and from the denial of their motion to vacate the judgment. While defendants have raised several issues on appeal, we consider it necessary to discuss only their contention that relator was not entitled to the writ of mandamus because of loches.

The pleadings reveal that Lieutenant John J. Cronin took an examination held by the Civil Service Commission of the City of Chicago for the position of Captain of Police. The examination took place on January 23, 1965, and the eligibility list for promotion to Captain was posted on March 24, 1965. Relator charged that through an error he was given an efficiency rating of 83 rather than 92 by the Chicago Police Department, and that the incorrect efficiency rating was sent to the Commission. As a result of the error, relator’s final grade average was entered as 74.37 instead of 77.07 and he was placed No. 56 on the eligibility list. If he had been given an efficiency rating of 92, he would now be No. 10 on the list and eligible for immediate appointment to Captain.

The defendants pleaded that petitioner was guilty of loches, and also set forth a Chicago Police Department order, approved by the Civil Service Commission, which defined methods and procedures to be used in determining efficiency ratings for candidates for promotion to the rank of Captain. A Lieutenant was rated by his immediate superior, whose preliminary rating report was reviewed by a Rating Board created by the Superintendent of Police. This board gave the final efficiency rating, which would be forwarded to the Superintendent for review and approval, and then forwarded to the Commission. Since the publication of said promotional list, 17 Lieutenants had been promoted to the rank of Captain.

At trial, Captain Francis J. Lynch, Cronin’s immediate superior on the department, testified that he gave Cronin an efficiency rating of 92. Cronin testified that he learned of that mark from Lynch a few months after the promotion list was posted in 1965. He learned of his final efficiency grade of 83 when he visited the Commission about two years after the examination. He waited the two years before going to the Commission because at the time the list was posted, he expected that 75 men would be made Captains, and he was No. 56 on the list. He inquired at the Commission when his expectation did not materialize.

In their post-trial motion, defendants, among other points, attached an affidavit from Colonel John C. Bucher, Personnel Director of the Chicago Police Department, which stated that if all the candidates for promotion to Captain received their preliminary efficiency rating as their final grade as sought by relator, there would be 20 candidates whose grade averages would be higher than relator.

Laches is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration, and other circumstances causing prejudice to an adverse party, as will operate as a bar to a suit. Ring v. Lawless, 190 Ill 520, 60 NE 881 (1901). And the doctrine of loches is applicable to mandamus proceedings. People ex rel. Mulvey v. City of Chicago, 292 Ill App 589, 12 NE2d 13 (1937).

In People ex rel. Ballinger v. O’Connor, 13 Ill App2d 317, 142 NE2d 144 (1957), this court stated at page 329:

“. . . our courts have taken the view that the bar of loches applies both to certiorari and mandamus and that six months has been established as the limitation period during which petitions for such writs must be filed, unless a reasonable excuse is shown for the delay.”

In accord, People ex rel. Cifaldi v. Wilson, 38 Ill App2d 302, 187 NE2d 353 (1962).

In the instant case, the examination took place on January 23, 1965, and the eligibility list was posted on March 24, 1965. The petition for mandamus was filed on June 19, 1967. Consequently the proceedings were instituted 27 months after the posting of the eligibility list for Captain. We hold that relator’s inordinate delay in prosecuting this action bars him from relief.

Relator attempts to distinguish the Ballinger and Cifaldi cases, supra, by arguing that those cases involved the discharge of policemen, where the facts of dismissal became immediately known to all parties, while here he did not learn his efficiency rating until he visited the Commission two years later. However we believe that the 6-month limitation rule enunciated above is just as appropriate and necessary in the case at bar as in proceedings concerned with the discharge of civil service employees. Relator cannot be permitted to sleep on his rights and agree to what has been done without taking action, especially where the means of ascertaining the facts were readily available had inquiry been made. He learned of the preliminary efficiency rating which he had received from his immediate superior shortly after the posting of the list. He knew that his posted grade contained an evaluation of his efficiency. He also knew that information about his final efficiency rating and about his posted grade was always available to him at the Commission. Nevertheless, expecting to be promoted, he waited two years before even making an inquiry of that body. His own testimony revealed that he was negligent in protecting his rights. Particularly in the instant case, there was an obvious need for prompt action by relator. Seventeen Lieutenants had been promoted to Captain from the list. Moreover, if all candidates for promotion to Captain had received their preliminary efficiency rating as their final efficiency mark, there would be 20 candidates whose grade averages would be higher than relator’s posted average. Relator would be given unfair advantage over the other candidates for promotion; and further, the Commission would be confronted with insoluble problems in determining the status of the grades of the other candidates years after the examination. Thus the issuance of a writ in favor of relator would not only cause confusion to the public service, but would be prejudicial and harmful to the morale and discipline of the police department.

It has been held that the limitation period for seeking mandamus writs would be six months unless reasonable excuse is shown for the delay. Schultheis v. City of Chicago, 240 Ill 167, 88 NE 563 (1909); People ex rel. Ballinger v. O’Connor, supra; People ex rel. Cifaldi v. Wilson, supra. Here the only explanation offered for the 27-month delay in instituting proceedings was relator’s testimony that he expected 75 men to be promoted from the list, and since he was No. 56, he anticipated that he would be promoted. Such a vague expectation on his part, unsupported by any fact, was insufficient to justify relator’s inaction for a period of more than two years. Clearly, it did not constitute a reasonable excuse for such an inordinate delay in taking action.

The judgment of the Circuit Court is reversed.

Judgment reversed.

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

Supplemental Opinion on Rehearing

In his petition for rehearing, relator questions the propriety of this court’s reference in its opinion to an affidavit made by Colonel John Bucher, Personnel Director of the Chicago Police Department. This affidavit was filed by defendants with their post-trial motion to vacate the writ of mandamus. In making such an argument relator overlooks the fact that in his brief he invited this court’s consideration of the affidavit, and stated specifically in that brief that “we have no hesitance in going to the heart of the matter and referring to the affidavit of Colonel John Bucher.” We agree with relator that the affidavit in question is the heart of the matter, and we believe that an examination of that affidavit and of the chronology of these proceedings is necessary.

The civil service list in question was posted on March 24, 1965. Twenty-seven months later, on June 19, 1967, this suit for mandamus was instituted. Service of summons was had on defendants June 20, 1967, returnable June 26. Defendants filed a motion to dismiss the lawsuit on the grounds of loches on June 26; the trial court denied that motion on June 28, and set the cause for trial on July 7, 1967. The assistant Corporation Counsel representing defendants objected to this early trial date, observing that there was a 4th of July holiday weekend intervening and that defendants would not have time to go through their records and prepare for trial. On July 7, the trial court again denied defendants’ motion for a continuance, and the cause proceeded to trial immediately. The writ was entered on July 12, 1967 ordering defendants to change relator’s efficiency mark from 83 to 92, ordering his grade average changed from 74.37 to 77.07 and further ordering that relator be certified and appointed as Captain of Police. On August 9, 1967, defendants filed a motion to vacate the writ, attaching the aforementioned affidavit of Bucher. Bucher’s affidavit contained an exhibit which listed the performance ratings of all the Lieutenants who took the examination and which indicated that if all of the applicants had received their preliminary rating grade from their superior officers as final marks, there would be 20 candidates whose grades would be higher than relator’s posted average. The affidavit stated that after a promotion list was posted for over two years, it was the policy of the Chicago Police Department to destroy records of proceedings for the rating of candidates, and that as a result, almost all said records concerning this examination had been déstroyed. The affidavit went on to say that a diligent search had been made within the limited time allowed to defendants prior to trial, but that this exhibit had not been located until after trial. The affidavit also stated that Special Order No. 64-70 of the Chicago Police Department set' forth procedures to be followed in rating Lieutenants, that said procedures did not require interviews of superior officers, and that at no time did the Police Rating Board interview such preliminary raters or superior officers.

In view of the facts and circumstances of this case, and because of the position of relator as expressed in his brief, we believe that this court properly considered the uncontradicted affidavit accompanying defendants’ post-trial motion.

In his petition for rehearing, relator for the first time cites Kadon v. Board of Fire and Police Com’rs of the Village of River Forest, 45 Ill App2d 425, 195 NE2d 751 (1964). In that case, while holding that the 6-months’ limitation period to seek judicial relief is limited to those civil service employees seeking reinstatement after a discharge alleged to be contrary to law, the court held that what constitutes loches is to be determined by the circumstances of each case. Kadon placed third in a promotional examination for Fire Department Lieutenant in 1951. In 1956, when he was first on that list, the Board held another examination. Kadon protested, and was informed by a member of the Board that he did not have to take the 1956 examination. He did not take the examination, and the Board added him to the 1956 list, placing him second to Riley. A vacancy occurred in 1960, and the Board announced that Riley would be promoted. Kadon again protested, and when he did not hear from the Board, brought an action for declaratory judgment. He was successful in the trial court, and in affirming the judgment, this court held that Kadon was not guilty of loches. The court held that Kadon did not delay in asserting his rights, that he took his stand before the 1956 examination and maintained it afterwards. The court also found that there was no lack of notice on the part of the Board as to Kadon’s assertion of his rights. The court finally held that no prejudice had accrued to the Board as the result of the delay, and that the only party who would suffer injury if Kadon were granted relief was Riley who had been wrongfully appointed by the Board. In the case at bar, although relator learned of the preliminary rating given to him by his superior officer shortly after the list was posted, he waited over two years to inquire of the commission about his final efficiency mark. Moreover, defendants had absolutely no knowledge that relator intended to assert any right against them. And finally, as we have indicated, great prejudice would accrue to the other candidates and to the morale of the entire Police Department if relief were granted to the relator.

We recognize the well settled principle that the question of loches is addressed to the sound discretion of the trial judge, and that his decision will not be set aside unless it is so wrong as to constitute an abuse of discretion. We find in the instant case that the finding of the trial judge that relator was not guilty of loches amounted to an abuse of discretion. Consequently, we reaffirm our finding that relator’s inordinate delay in commencing any action constituted loches, and barred him from any relief.

Relator’s petition for rehearing is denied.

       The error charged in the complaint was not a clerical one, hut was the failure of the Chicago Police Department to give plaintiff as his final efficiency mark the rating given to him by his immediate superior.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    Andrew Letsos, Plaintiff-Appellee, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,548.
    First District, Third Division.
    October 2, 1969.
    Rehearing denied and supplemental opinion January 15, 1970.

      George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Michael A. Gerrard, of Chicago, for appellant.
    William J. Colohan and John L. Roach, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

While riding on a bus operated by the Chicago Transit Authority, Andrew Letsos was injured by another passenger. His complaint charged that the defendant negligently failed to preserve order on the bus and failed to take timely action to protect him from harm by warning, restraining or ejecting passengers who were disorderly and dangerous. A jury found the issues in his favor and a judgment for $25,000 was entered on the verdict. The defendant’s only contention on appeal is that the trial court erred in denying its motion for judgment notwithstanding the verdict.

Letsos and his cousin Peter Tselios completed their work in downtown Chicago on the night of April 2, 1962, and about 8:45 p. m. boarded a west Madison Street bus to go home. Letsos and Tselios were white; the driver and the rest of the passengers on the crowded bus were black. They stood until two people got up and then found seats in the front of the bus: Tselios with three other passengers on the long, side seat to the driver’s right; Letsos behind him, on the aisle side of the first forward-facing, two-passenger seat.

Shortly after they boarded the bus, noise, hollering and argument came from the rear and continued throughout their journey. Passengers got on and off and the bus was less full when it approached Oakley Boulevard, a street about three miles west of the downtown area. As it neared that street a man stepped on Tselios’ feet on his way to the front door. Tselios exlaimed: “You stepped on my foot.” The man made some reply, hesitated at the door and then, at the driver’s urging, got off. The driver closed the door quickly and drove on. As the door closed, another man who was seated behind the driver and across the aisle from Tselios told him to watch his feet. Tselios said for him to mind his own business and the man replied, “When you trip my people, I make it my business.” He got up and went for Tselios; Tselios grabbed his arms and they scuffled.

Simultaneously with this altercation, the commotion in the back of the bus increased. Shots were fired. Letsos, who had remained seated was shot twice, once in the left leg and once in the left heel.

Amidst confusion and screaming the bus pulled to its regular stop at Western Avenue. The driver ran across the street to a store and telephoned his dispatcher. The passengers scrambled out and dispersed. Letsos fell to the floor and lost consciousness. He awakened in the hospital. His tibia was fractured and a bullet was embedded in the bone’s pulmonary canal.

The driver testified that he heard no disturbance until the bus reached Oakley Boulevard. At this stop he saw a passenger stumble all the way to the front door. The passenger turned around and told one of the two white men to take his feet out of the aisle; he paused like he was going to get involved physically and the driver told him he was holding up the bus. He got off but more words were said and he started to get back on. The driver slammed the door and “took off for Western”—a long block away. The driver heard the argument and saw the encounter between the black man back of him and the white man across the aisle. At this same time, while the bus was between Oakley and Western, he saw another man come from the back and strike one of the white men. He said the two black and the two white men fought in the middle of the floor. He said it was his intention to separate them and to put them off the bus but when the shots were fired everyone “evaporated.”

The driver testified that he was the last one off the bus, but he also said that others left after he did, including the man who came from the back of the bus and participated in the fight. While he did not see a gun and did not know who did the shooting, in his opinion it was done by this man. After making his telephone call and returning to the bus, he saw this man leave the bus by the rear exit and enter a taxicab. Although the driver suspected that this man did the shooting and knew he had taken part in the affray, he did not mention this to the police who were at the scene and did not note the license number of the cab.

Only two witnesses, other than Letsos and the bus driver, testified about the occurrence. Tselios was in Greece at the time of the trial and the two witnesses were women who said they boarded the bus one stop before Oakley Boulevard. They telephoned the defendant a day or two after the shooting to report that they had been injured while getting off the bus. They testified that they sat in the rear and that nothing unusual happened until the bus reached Western Avenue, where some hollering and shooting took place. Their testimony was of dubious quality. They did not hear either the disturbance at Oakley or the altercation after Oakley—although both were acknowledged by the driver. Determining the weight and credibility of their testimony was the jury’s function.

Letsos, as a passenger in the defendant’s bus, was entitled to the highest degree of care. Blackwell v. Fernandez, 324 Ill App 597, 59 NE2d 342 (1945). A passenger who pays his fare to a common carrier expects safe transportation to his destination and a carrier is required to do all that human care, vigilance and foresight can reasonably do to transport its passengers safely, consistent with its mode of conveyance and the practical operation of its business. Lutz v. Chicago Transit Authority, 36 Ill App2d 79, 183 NE2d 579 (1962). This duty includes the obligation of using due diligence to protect its passengers from assault, injury and abuse by third persons. Chicago & Alton R. Company v. Pillsbury, 123 Ill 9, 14 NE 22 (1887); McMahon v. Chicago City Ry. Co., 143 Ill App 608 (1908); affd 239 Ill 334, 88 NE 223.

The defendant does not quarrel with these general principles but its contention is that the injury occurred so suddenly and unexpectedly that it could not have been foreseen by the driver, and consequently the trial court should have set aside the verdict for Letsos and entered judgment in its favor.

A defendant’s motion for judgment notwithstanding the verdict should be granted only where all the evidence when viewed most favorably to the plaintiff is so overwhelmingly in the defendant’s favor that a verdict for the plaintiff could never stand. Larson v. Harris, 38 Ill2d 436, 231 NE2d 421 (1967); Bernier v. Skripek, 86 Ill App2d 118, 229 NE2d 890 (1967). The evidence created a factual issue for the jury’s resolution. The evidence was sufficient to allow its verdict to stand and the trial court properly denied the defendant’s motion.

From the evidence most favorable to the plaintiff the jury could have found that there were two disturbances on the bus: that there was continual argument in the rear during Letsos’ trip, that this led to the shooting, that the quarreling should have alerted the driver to impending trouble and that he should have taken steps to stop it; that even if the driver was unaware of the disturbance in the back of the bus, he was not unaware of the disturbance in the front and that he had time to, and should have taken immediate action to quell it.

The driver admitted that he was apprehensive about the situation at the time the tripping took place. He testified that when this happened he “discovered that the situation was going to occur” and that he ordered one of the participants off the bus and slammed the door in his face. Immediately thereafter his apprehension was realized. He heard a belligerent voice say, “Why don’t you mind your own damn business” and the hostile reply, “When you trip my people, I make it my business.” He knew there were only two white men present and he saw a black man start fighting with one of them. He stated that this took place when he was halfway between Oakley and Western. He then observed another black man get into the fight. He said that this happened “somewhere between Oakley and Western” and he also said it occurred when he was “wheeling into Western.” He was asked to stop the bus, but he did not. He did nothing until he arrived at the next regular stop and then he ran away to make a telephone call.

Occurrences such as this are not so unusual that the defendant can be said not to know about them or not foresee their taking place. They have occurred frequently enough to cause the Illinois Legislature to enact a law requiring the posting in every vehicle used for the transportation of the public a notice of the statutory punishment for assaulting a passenger. Ill Rev Stats 1967, c 100, § 31. The defendant operates buses and rapid transit trains throughout the City of Chicago and into some of its suburbs at all hours of the day and night. This puts a heavy burden upon the defendant. It does not relieve it, however, from the duty to do all that human care, vigilance and foresight can reasonably do to protect its passengers from harm. In Neering v. Illinois Cent. R. Co., 383 Ill 366, 50 NE2d 497 (1943) the court stated:

“Knowledge of conditions which are likely to result in an assault upon a passenger, or which constitute a source of potential danger, imposes the duty of active vigilance on the part of the carrier’s agents and the adoption of such steps as are warranted in the light of the existing hazards.”

The jury’s conclusion that the defendant was negligent in not safeguarding the plaintiff was supported by adequate evidence. The defendant’s driver had timely notice of the potential danger to his passengers, he could have foreseen or could have reasonably anticipated that trouble would develop which would expose the passengers to injury, and he had a reasonable opportunity to prevent the dangerous conditions from culminating in such injury. Other than closing the door upon one troublemaker, he did nothing to maintain order. He could have done more. He could have stopped the bus and attempted to calm the bellicose passengers or ordered them to leave; he could have opened the doors and permitted the peaceful ones to step out until the danger abated or further transportation arrived. The words of the white and black man were provocative, their voices hostile, the situation, with its racial overtones, explosive. Violence was imminent and ordinary care, let alone the highest degree of care, would have dictated the taking of cautionary measures to forestall injury to innocent passengers.

The trial court’s denial of the defendant’s motion for judgment notwithstanding the verdict is affirmed and the judgment for the plaintiff is upheld.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

The Chicago Transit Authority’s petition for rehearing finds comparatively little fault with the observations in our opinion concerning the altercation in the front of the bus but it charges that we made an “incredible” finding, unsupported by a “syllable of testimony,” that there was an argument in the rear of the bus before it reached Oakley Boulevard and that this argument led to the shooting. This court made no such finding. We said that the jury could have found from the evidence most favorable to the plaintiff that there was continual argument in the rear of the bus during Letsos’ trip and that this led to the shooting.

The record shows: Letsos testified that an argument started in the back of the bus a few moments after he got on. He described it variously as “arguing,” “hollering” and “noise.” He said it continued, both when the bus was moving and while it was stopped, all the way to Oakley Boulevard and that it was still going on when the passenger got off at Oakley.

The defendant protests the use of the word “quarreling” in reference to the argument. It explains that an argument is not a quarrel and asserts that there was not “a word of testimony” to support our “finding” which, it says, contradicts Letsos’ own specific testimony that he did not hear any fighting in the rear of the bus. It further asserts “there was not a word of testimony that the participants in the argument were belligerent or fighting.”

The record shows: At one point in his cross-examinatian Letsos said that he did not hear any fighting while the trip was in progress. But there was testimony from which the jury could have found that quarreling and fighting developed in the back of the bus before the shots were fired. The noise in the back increased concurrently with the altercation in the front and the defendant itself brought to the jury’s attention that Letsos described this noise as a fight. While cross-examining Letsos, the defendant’s attorney tried to impeach him by reading questions asked of him and answers made by him in his deposition. Among them were these:

“Question: Then was this question put to you ? ‘Question: What happened then?’ And did you answer: ‘There was a fight back in the bus. We didn’t do anything.’ Was that question put to you and did you make that answer in July of 1963 ?
“Answer: Yes, I did.”

Letsos also said in his deposition that he thought there was a fight in the back of the bus. He went on to testify that the noise was such that it caused him to turn his head around just before he was shot. It was stipulated that if the court reporter who attended the deposition had been called as a witness he would have testified that Letsos was asked the above questions and made the answers attributed to him.

The defendant further asserts that there “was not a syllable of testimony that there was any connection whatsoever between the loud talk in the rear of the bus and the shooting in the front of the bus.”

The record shows: The defendant’s driver testified that the passenger who stepped on the white man’s foot “stumbled all the way up to the door” before he got off at Oakley. The jury could have inferred that this man, whose conduct triggered the whole melee, came from the noisemakers in the back of the bus. More importantly, this same witness testified that he thought a passenger who had been in the back of the bus shot Letsos. He saw this man come down the aisle, inject himself into the altercation at the front and strike one of the two white men. The jury could have inferred, with good reason, that this quarrelsome individual was one of those who had been shouting and arguing in the back of the bus and that if the disturbance there had been arrested and the turbulent participants subdued, the shooting might not have occurred.

The evidence created factual issues for the jury’s resolution. No complaint is made about the court’s rulings on evidence, the plaintiff’s argument to the jury or the court’s instructions. In an errorless trial, the jury resolved the issues in favor of the plaintiff. The trial court approved the jury’s verdict. The court found that the evidence favorable to the plaintiff was sufficient to allow the verdict to stand and denied the defendant’s motion for judgment notwithstanding the verdict. We reaffirm our concurrence in the court's judgment.

The Petition for Rehearing is denied.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John E. Green, Defendant-Appellant.
    Gen. No. 53,046.
    First District, Third Division.
    December 11, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, John Green, was convicted in a non-jury trial of an attempted robbery, and was sentenced to the penitentiary for a term of three to ten years. He contends that he was not proven guilty beyond a reasonable doubt, and that his pretrial identification did not afford him an opportunity to either obtain counsel or to appear in a lineup and thus deprived him of due process of law.

Louis Brown, a gas station attendant, testified that on October 31, 1967, at 2:30 a. m., a man whom he identified as Green came to the station and asked to use the washroom. Another man was in the station with Brown. When Green returned from the washroom he asked for change for a quarter and, as Brown was giving him his change, Green, who had his left hand in his pocket, revealed what appeared to be the pointed end of a pistol and said: “Get back in there . . . this is a stickup.” Brown immediately slammed and locked the front door in the robber’s face and telephoned the police as Green walked away. Later that morning the police brought Green to the gas station and Brown identified him as the man who had attempted the robbery.

The arresting officer testified that approximately two hours after receiving a radio message about the offense, he observed a man who fit the description given in the message. The man was arrested, searched and found to possess a chrome cigarette lighter which resembled a revolver. He was taken to the gas station and was identified by Brown as the man who had attempted to rob him.

Green admitted that he was at the station. He testified that he asked the attendant for change to use the telephone. He said he had his money and a cigarette lighter, which he described as a “revolver shaped instrument,” in the same pocket. The attendant became agitated when he saw the lighter and, after giving him the change, slammed the door and told the other man to call the police, whereupon Green left the station. He denied that he attempted to rob Brown or that he threatened him with the use of force.

The defendant’s first contention is that the State did not prove beyond a reasonable doubt that a robTbery was attempted because Brown’s testimony was not corroborated by the third man who was present at the scene. He argues that the failure to call this witness carries an adverse inference against the State and cites People v. DiVito, 66 Ill App2d 282, 214 NE2d 320 (1966), in support of his argument. His reliance on Di Vito is misplaced. In that case this court held that the State had not met its burden of proof when the complaining witness could not identify DiVito as one of the men who had robbed him in his apartment and when it was established that another man, William Orlach, was also in the apartment when the robbery occurred but was not called by the State as a witness. The only evidence implicating DiVito was a fingerprint found in the apartment which he asserted was made when he had visited there on an earlier occasion: This court said: “The inference might well be that Orlach had seen the robbers and would have testified that the defendant was not one of them.” The present case is inapposite: a witness identified the defendant and testified as to what he said and did. Moreover, the defendant admitted being at the station and his identification is not in issue. The State is not obligated to produce every witness to a crime and the failure to produce a witness does not raise a presumption that his testimony would be unfavorable to the prosecution. People v. Jones, 30 Ill2d 186, 195 NE2d 698 (1964).

The defendant’s denial that he attempted a robbery created an issue for the trial court’s determination. The court heard the positive testimony of Brown that Green attempted to rob him. The testimony of one witness, if positive and credible, is sufficient to support a finding of guilty. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965); People v. Donald, 29 Ill2d 283, 194 NE 2d 227 (1963). Green’s evasive act of immediately leaving the scene when the police were called was also a matter for the court’s consideration as were Ms two prior, forcible felony convictions, which were offered by the prosecution to impeach his credibility. There is no reason to disturb the court’s finding that the evidence established Green’s guilt beyond a reasonable doubt.

The defendant’s contention that his post-arrest identification at the gas station deprived him of due process of law and of his right to counsel is novel in view of the fact that he admitted his presence at the scene of the alleged crime. His argument seems to be that even though his identification was not a factual issue at the trial, the one-man showup was so suggestive and prejudicial that he felt compelled to testify that he was present. There is no need to answer this argument inasmuch as the defendant did not object to the evidence concerning identification at his trial.

Even if we were to ignore the infirmity in his argument, we would not find merit in his contention that the mode of identification deprived him of his constitutional guaranties under the Sixth and Fourteenth Amendments. The circumstances surrounding his identification at the gas station were not “so necessarily suggestive and conducive to irreparable mistaken identification” as to deprive him of due process of law. Stovall v. Denno, 388 US 293 (1967). Brown had a clear view of the defendant at a very close distance for a period of several minutes. He, therefore, had ample time to observe him which provided an adequate independent and untainted basis for the courtroom identification— an identification corroborated by the defendant’s own testimony which he now seeks to impeach.

The cases of United States v. Wade, 388 US 218 (1967) and Gilbert v. California, 388 US 263 (1967), are relied on by the defendant in support of his assertion that he was unconstitutionally deprived of his right to counsel during the confrontation at the gas station. People v. Palmer, 41 Ill2d 571, 244 NE2d 173 (1969), construed these decisions as holding that the right to counsel attaches only at post-indictment confrontations. The confrontation between Green and his accuser occurred immediately after his arrest and prior to his indictment and the appointment of his counsel.

A third point advanced in the defendant’s brief was that he did not knowingly waive his right to a trial by jury. This point was dropped by his appeal counsel who stated in oral argument that he was waiving Point III and relying solely on Points I and II. Our examination of Point III discloses that the attorney made a lawyer-like decision. The point was without merit under the circumstances of this case and, in view of the published opinions of this court, would not have been sustained.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Brown (Impleaded), Defendant-Appellant.
    Gen. No. 53,095.
    First District, Third Division.
    December 11, 1969.

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

delivered the opinion of the court.

In a jury trial the defendant was found guilty of burglary, and after a hearing in aggravation and mitigation the court sentenced him to a term of 12 to 20 years in the State Penitentiary. He contends on appeal that (1) he was not proven guilty beyond a reasonable doubt, (2) his alibi should not have been disregarded, and (3) the sentence imposed was excessive. The facts follow.

On February 15, 1967, a printing shop at 719 Willow Street, Chicago, was burglarized. Galleys and linotype mats valued at about $9,000 were taken. Alfred Kalnajs, the owner of the shop, was away on vacation. Before leaving on February 10th he gave the keys to the shop to Janis Pencis, whom he had known for over 15 years, so that Pencis could check the premises and turn on the heat. Pencis testified that on the morning of February 15, 1967 when he went into the shop, he encountered four negroes, one of whom was the defendant. On seeing Pencis the defendant asked him what he was doing there. Pencis replied that he had come to look at the shop and to turn on the heat and proceeded to the boiler room in the basement. When he sought to return to the main floor, his way was blocked by a man holding a mallet who told him to remain downstairs. Pencis then heard sounds of dragging and “of lead materials being poured off a plate.” After 15 or 20 minutes the noise abated and defendant entered the basement. He warned Pencis not to call the police because he “didn’t have all the materials he wanted.” The witness waited until he heard the men leave and then went upstairs and looked out of the front door, where he was able to observe the defendant and three other men pushing a shopping cart loaded with “coal-type sacks filled with materials.” He telephoned the police and went to look for a squad car. He saw the defendant returning to the shop with an empty cart. When the defendant saw Pencis, he ran up to him and asked whether he had called the police and told him that if he had, “it wouldn’t be safe” for him around the neighborhood. After the defendant left, Pencis continued his search for a police car. He returned to a corner where he could see the shop and saw a squad car parked nearby. As he approached the police car he saw the defendant and another man sitting in the back seat. Upon recognizing defendant, Pencis said to the police officer, “I see you got them.”

Lillie London, a police crossing guard, was a witness for the State. She testified that she was stationed at the corner of Burling and Willow Streets, the intersection adjacent to the printing shop, that she arrived for work at 7:45 a. m. and stayed until approximately 9:00 a. m. and that at about 8:20 a. m. on the day in question she saw three young negroes going west on Willow Street with three shopping carts. Her testimony corroborates that of Pencis, except that she claimed to have seen three men, not four, pushing three carts, not one. She also saw a squad car parked in front of the printing shop.

The arresting police officer, Leonard Wasicki, testified that he received a call over his radio relative to 719 Willow Street, the address of the printing shop. As he approached the area, he saw two men in a gangway between the premises at 719 and 721 Willow Street. When the men saw the police car, they fled. Wasicki then drove around the block onto Burling Street and saw the same two men running down another gangway. As he pulled up, they stopped, threw snowballs at each other and then got into the squad car. Wasicki returned to 719 Willow Street where Pencis later met him.

Defendant undertook to establish an alibi. He testified that he left his apartment at 1657 North Halsted Street, a distance of about two blocks from the burglarized premises, at about 8:00 a. m. to see if a laundromat was open. Upon finding it closed, he proceeded to a grocery store in the vicinity of North Avenue (1600 north) and Frontier Street, which was also closed. Deciding to return to his apartment, he proceeded north on Burling Street to a point about 120 feet from Willow Street, where he was arrested. He did not know the man with whom he was arrested other than as a pedestrian walking south on Burling Street at the time of the arrest.

Defendant’s fiancee Priscilla Miles testified that she had spent the night preceding the alleged burglary at defendant’s apartment and that on the morning of February 15, 1967 he did not leave the premises until 8:00 a. m., when at her request he went to see if a laundromat at North Avenue and Burling Street was open.

Defendant contends that the evidence for the State was not only entirely circumstantial but was also conflicting. The fact that evidence is circumstantial does not, in itself, detract from its probative value since “under certain conditions circumstantial evidence may be more accurate than direct.” People v. Bailey, 90 Ill App2d 121, 234 NE2d 332. Wigmore points out that it is impossible to ascribe a greater weight to one class of evidence than to the other. 1 Wigmore, Evidence, § 26 (3rd ed 1940). Here the defendant was seen on the burglarized premises at the time the sound of dragging and of lead materials being poured off a plate was heard. That evidence, coupled with the fact that about 21,000 lead slugs weighing approximately 6,000 pounds were emptied from 260 galleys, strongly supports the State’s case that a burglary was taking place while defendant was upstairs and that he participated in it. This is further corroborated by Pencis’ testimony that he saw defendant pushing filled sacks in a shopping cart down the street away from the shop and by defendant’s own incriminating statement to Pencis that he had not gotten all he wanted. The jury chose to beHeve Peneis’ account of the events on the day of the burglary and that evidence amply sustains the verdict.

Defendant stresses an apparent conflict in the testimony of Peneis and that of Lillie London as to the number of men involved and the number of carts used on the job. That is not a material conflict. There is evidence in the record of multiple trips, thereby raising the possibility that the witnesses observed two separate occurrences. In any event it is an incidental issue involving a question of credibility which was for the jury to decide.

Defendant’s next contention is that his alibi evidence “should not have been disregarded.” The testimony on which an alibi is based should place the defendant far enough away from the scene of the crime to render it impossible for him to have participated in it. People v. Thomas, 393 Ill 573, 67 NE2d 192; People v. Lukoszus, 242 Ill 101, 89 NE 749. Defendant lived only a few blocks from the printing shop and was apprehended by Officer Wasicki a short distance from the scene of the crime. It is therefore clear that he could have easily reached the burglarized premises and have participated in the crime. There is no merit in this point. We proceed to consider defendant’s final contention, that the sentence imposed was excessive.

At a hearing in aggravation and mitigation it was disclosed that the defendant, although only 26 years old, had a long record. In 1959 he was sentenced to serve one to three years in the penitentiary for robbery. In 1962 he was again convicted for robbery and on that occasion received five years probation. One month later he violated his probation and received two to three years in the penitentiary. In 1965 he received thirty days for shoplifting. He now stands before us convicted of burglary. The applicable penalty provision provides for an indeterminate term in the penitentiary of not less than one year. Ill Rev Stats, c 38, § 19-1 (b) (1967). The sentence imposed was imprisonment for not less than twelve nor more than twenty years.

The appellate power to reduce sentence should be applied cautiously since the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed. People v. Nelson, 41 Ill2d 364, 243 NE2d 225; People v. Taylor, 33 Ill2d 417, 211 NE2d 673. Considering defendant’s prior felony record, the sentence was not excessive.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


text:
    People of the State of Illinois, Appellant, v. Wardeen Mason, Jr., Appellee.
    Gen. No. 53,929.
    First District, Third Division.
    December 11, 1969.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    McCoy, Ming & Black, of Chicago (Ellis E. Reid, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

This is an appeal by the State from an order of the Circuit Court sustaining defendant’s motion for a discharge under the Four-Term Act. Ill Rev Stats 1967, c 38, § 103-5. Defendant, Wardeen Mason, Jr., was indicted for the crime of theft on April 15, 1966, and released on bond. Thereafter, the cause was continued from time to time, some of the continuances at the request of defendant, some upon motion of the State, and others by agreement. Defendant made a demand for immediate trial on June 3, 1968, and a jury trial began on August 15,1968. The jury was unable to reach a verdict, and as a result of the jury disagreement, a mistrial was declared and the jury discharged on August 20, 1968. The cause was transferred to the Chief Justice for reassignment and set for August 28. On that date, defendant demanded immediate trial, and the State was allowed a continuance until October 3. On October 3, the State requested another continuance, explaining that two of its witnesses were in Israel but would return. The cause was continued until November 18, at which time defendant’s motion for a fourth-term discharge was granted. The State appeals, contending that defendant’s motion for discharge was improperly granted.

The Criminal Code, Ill Rev Stats 1967, c 38, § 103-5 (b) provides:

“Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, ... by a competency hearing, . . . or by an interlocutory appeal.”

In People v. Jonas, 234 Ill 56, 84 NE 685 (1908), the court held that the four-month period begins to run anew from the date of the disagreement of a jury. The holding in the Jonas case was modified by the language of The People v. Gilbert, 24 Ill2d 201, 181 NE2d 167 (1962), where the court held that the four-month rule did not necessarily begin to run anew after every mistrial, but that consideration should be given to defendant’s constitutional right to a speedy trial. In People v. Henry, 68 Ill App2d 48, 214 NE2d 550 (1966), the court held that defendant’s right to a speedy trial was satisfied by commencement of second trial 39 days from the date the first jury failed to agree.

From these latter holdings, it appears that circumstances of each case must determine the effect of a mistrial upon the running of the statutory period. Under the facts and circumstances of the instant case, we find that the court erred in granting defendant’s motion for a discharge. Although the case did not go to trial for well over two years after indictment, defendant, who was free on bond, contributed to this delay by continuing the cause from time to time on his own motion and by agreement. After the jury disagreement, the trial court allowed defendant’s motion 88 days after the declaration of the mistrial, and 80 days after defendant again made a demand for immediate trial. Approximately 35 days after this demand for trial, the State informed the court that two of its witnesses were out of the country and would be gone for some time. The State requested a continuance until November 18, and assured the court that it would be ready for trial on that date. We believe that this action on the part of the State was neither oppressive nor a purposeful attempt to delay defendant’s right to a trial, but rather a reasonable request on its part as the result of the temporary departure of two of its witnesses. Although the State did not call these absent witnesses in the first trial, the record indicates that the witnesses in question, husband and wife, were the victims of the alleged theft. Moreover, defendant in the trial court did not offer to stipulate as to their proposed testimony. Under the facts and circumstances of this case, it was error to discharge defendant under the Four-Term Act.

Defendant argues also that the delay in the instant case was oppressive because a related civil action brought by defendant in 1966 against the City of Chicago could not be concluded during the pendency of the criminal charges, and urges us to take judicial notice of that civil action. Without considering our right to take judicial notice of the civil suit, we hold that the State’s request for a continuance in order to have all of its witnesses present at trial was reasonable, and not oppressive. Moreover, if time were of the essence in the civil action, defendant should not have continued the instant cause from time to time on his own motion and by agreement, thus materially contributing to the delay of the criminal trial from 1966 to 1968.

Defendant finally contends that the State’s notice of appeal was defective, and that, therefore, the appeal should be dismissed. The notice of appeal indicates that the order appealed from was entered on November 18, 1968, whereas the common-law record indicates that the order was entered on November 20, 1968. The notice of appeal was filed on November 21, 1968. Thus the notice was filed well within the 30 days allowed by law. Supreme Court Rule 606(b), Ill Rev Stats 1967, c 110A, § 606(b). The fact that the notice of appeal stated that the order discharging defendant was entered on November 18, 1968, whereas it was entered on November 20, 1968, is immaterial, as there was only one final order entered and the appeal was taken from that order. It is well settled that minor insufficiencies in the form of a notice of appeal are to be disregarded. See Bank of Republic v. Kaspar State Bank, 369 Ill 34, 15 NE2d 721 (1938).

Accordingly, the order of the Circuit Court is reversed, and the cause remanded with directions to deny defendant’s motion for a discharge, and for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded with directions.

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


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Wayne J. Christiansen, Defendant-Appellant.
    Gen. No. 69-36.
    Second District.
    December 12, 1969.

      Miller, Schneider and Galasso, of Chicago, for appellant.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Aldo E. Botti, Assistant State’s Attorney, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant was found guilty of burglary by a jury’s verdict. A motion for a new trial was denied, judgment on the verdict was entered and he was sentenced to the penitentiary for a term of three to six years.

On appeal the defendant contends that the trial court erred by refusing one of defendant’s instructions; that certain fingerprint evidence, admitted over objection, was in error and that the State erred both in the manner of presenting its evidence and by improper closing argument.

At 5:30 a. m. on May 20, 1968, an officer of the Carol Stream police department, while cruising in a squad car, came upon a green, two-door, 1955 Packard automobile. It was parked facing north, on the east side of Gary Avenue, its hood up while a male worked on the engine. The officer parked the squadrol, walked over to the individual and commenced a conversation. At this time he noticed two men emerge through a broken window of a gas station, run toward the Packard, then suddenly veer north and run into a field behind the station. (The field was a spread of tall, wet grass.) The officer described one of the men as wearing a white sweat shirt with dark pants and the other as wearing a dark sweat shirt and dark pants. He chased these men for about 45 feet into the field and, while doing so, noticed the Packard speed away. Being unable to catch the two men pursued, he returned to his squad car and, by radio, requested help. At this time he observed that his clothing, from the waist down, as well as his shoes, were wet from the vegetation, although there had been no rain in the area.

About fifteen minutes later, the officer was called to the scene where another squadrol had, after a high speed chase, stopped the previously described Packard. The officer identified both the automobile and its driver as the same car and individual that had been parked at the gas station. The officer then went to the police headquarters of an adjoining community where two men were being held, one being the defendant herein. Both men’s clothing was wet from the waist down; the defendant was wearing a crumpled, dark shirt (under which was a light sweat shirt) and dark pants and there was “quite a bit” of grass in the laces of his shoes. The other man was wearing a dark sweat shirt, dark pants and shoes which also had “quite a bit” of grass upon them. The officer testified that “the subjects compared very much the same” as the men he saw running from the gas station. The officer also testified that he had made two previous checks of the gas station that morning and the window had been intact.

An officer from this adjoining community, who apprehended the defendant and his companion, testified that he was alerted to be on the lookout for two subjects, (one in complete dark clothing and the other with dark trousers and a light sweat shirt) proceeding eastward from Carol Stream; that he observed two subjects hitchhiking eastward, stopped them, requested identification and inquired as to what they were doing, to which they replied that they were hitchhiking from St. Charles, and had been dropped off at this location; that he informed them that it was illegal to hitchhike and let them go on their way; that he observed them enter a cafe; that he radioed his headquarters for more information and, at this time, a state trooper driving by was asked to assist; that he and the trooper went into the cafe and requested the two subjects to come to headquarters for interrogatian, which they did; that thereafter, the Carol Stream officer and his superior appeared and took the two subjects to the county jail.

Other testimony revealed that, after being arrested, the defendant stated that he had been at a party and was on his way home when apprehended; that he never saw a green Packard or knew its driver. The State introduced evidence that fingerprints of the defendant were found on the inside of the window and on the frame of the Packard. Further evidence established that cash was taken from the register in the gas station.

The defendant’s first assignment of error relates to the court’s refusal to give the full instruction on the definition of circumstantial evidence, IPI—Criminal 3.02. The court gave the first paragraph of this instruction, as tendered by the State, but refused to give the defendant’s instruction which contained the second paragraph. Committee Note on this instruction reads:

“The second paragraph should be given only when the proof of guilty is entirely circumstantial.”

Defendant argues that the proof of guilt in the present case was wholly circumstantial as applied to the offense charged. On the other hand, the State takes the position that there was some direct evidence introduced.

Direct evidence has been defined as evidence which, if believed, proves the existence of the fact in issue without inference or presumption, whereas circumstantial evidence is evidence which, without going directly to prove existence of a fact, gives rise to a logical inference that such fact does exist. Direct evidence has been described as testimony of a person who has perceived the existence of a fact, sought to be proved or disproved, by means of his senses. See 29 Am Jur 2d, Evidence, § 264; United Textile Workers v. Newberry Mills, Inc., 238 F Supp 366, 372-373 (1965); State v. Famber, 358 Mo 288, 214 SW2d 40, 43 (1948).

In. the case before us the Carol Stream officer saw: the Packard (from which the defendant’s fingerprints were later lifted) on the scene; a broken window which a short time earlier was not broken; two men who came from within the gas station by means of a broken window; these same men running toward the Packard, abruptly change direction and run into a field; the clothing worn by the two men; and, later, the condition of the attire worn by the defendant and his companion. He further testified as to the condition of his own attire after running in the field. Additionally, the lessee of the gas station testified that his station was broken into and that cash had been taken. This, in our opinion, was direct evidence establishing that a crime had been committed. Because the officer could not facially identify the defendant as one of the men emerging through the broken window does not, in and of itself, create a complete circumstantial case. Identity is only one element necessary to be proved by the State and this may be accomplished by circumstantial evidence. People v. Sauber, 68 Ill App2d 133, 143, 214 NE2d 918 (1966). Another necessary element of proof is to establish the corpus deliciti. This was done by the direct evidence stated above. We, therefore, conclude that the instant case consisted of direct as well as circumstantial evidence and that the trial court was correct in refusing the defendant’s tendered instruction.

At commencement of the trial, the State informed the defendant that it intended to introduce certain scientific evidence by way of fingerprints. On the fourth day of trial it was learned that this evidence consisted of two partial fingerprints lifted from the Packard and a fingerprint card, signed by the defendant, showing one of his fingerprints taken by the sheriff in 1962 when the defendant was 15 years of age. The 1962 fingerprint arose out of a juvenile proceeding against him at the time. The defendant moved to suppress the use of the 1962 print only, since the State had agreed not to use the card or any information contained thereon. The motion was not in writing nor was any factual testimony introduced. Upon hearing of argument, the court denied the motion.

It is first claimed that since the use of the 1962 print was allowed, the defendant was limited in his cross-examination due to the fact that, had he questioned the veracity of the print, the State would have been forced to lay a proper foundation for its entry into evidence. This would have entailed calling in the officer who took the print. This, it is reasoned, would then have divulged to the jury that the defendant had been previously arrested for a crime other than the one for which he was being tried. Conversely, it is claimed that had the motion been allowed, there would have been no risk of creating possible error.

The State examined its expert witness without revealing any previous arrests. The expert, upon comparing the 1962 print with the partial fingerprints obtained from the Packard, opined that all of the prints were those of the defendant. Extensive cross-examination provoked no mention of any previous arrests.

Evidence which tends to prove a fact in issue or to establish motive, intent, identity, accident or absence of mistake is admissible even though it may involve proof of a separate offense. The People v. Dewey, 42 Ill2d 148, 157, 246 NE2d 232 (1969); The People v. Davis, 14 Ill2d 196, 200, 151 NE2d 308 (1958). We are of the opinion that the 1962 print, as argued under this point, comes within the purview of these decisions. Under this rule, the State would have been entitled to introduce, had defendant objected, further testimony supporting the veracity of the 1962 print by calling xupon the officer who had taken it. Without objection, such foundation became unnecessary. The defendant’s strategy was to waive any objection and thereby hopefully avoid revealing a separate offense. This cannot be a basis to estop the State in its right to introduce the 1962 print for comparison purposes by claiming that defendant’s cross-examination was limited.

It is further contended that the motion should have been allowed because the use of the 1962 print violated provisions of the Juvenile Court Act. Section 702-8 of the Act (Ill Rev Stats 1967, c 37, § 701-1 et seq.) prohibits, without court order, any law enforcement officer or agency from transmitting to the Department of Public Safety or to the Federal Bureau of Identification, any fingerprint or photograph of any boy under 17 years of age or any girl under 18 years of age when arrested or taken into custody. The section further provides that juvenile records shall be kept separately and closed to public scrutiny except by court order.

Section 702-9 of the same Act provides:

“(1) No adjudication, disposition or evidence given in proceedings under this Act is admissible as evidence against the minor for any purpose whatever in any civil, criminal or other cause or proceeding except in subsequent proceedings under this Act concerning the same minor .... Neither the fact that a minor has been the subject of proceedings under this Act nor any confession, admission or statement made by him to the court or to any officer thereof before his 18th birthday is admissible as evidence against him or his interests in any other court or proceeding, except in trials of suits for libel or slander, wherein the fact, confession, admission or statement is material and relevant.”

The Legislature has provided that when a motion to suppress evidence is made it shall be “in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the bur den of proving that the search and seizure were unlawful shall be on the defendant . . . (Ill Rev Stats 1967, c 38, § 114-12 (b).) (Emphasis added.)

The defendant takes the position that when he orally moved to suppress the 1962 print and called the court’s attention to section 702-9 of the Juvenile Act, it thereupon became the duty of the State to prove that such print was not used as evidence in the juvenile proceedings. We disagree and hold that such an interpretation of section 114-12 (b) would be the exact opposite of the express provision of the last quoted section.

It is also claimed that the 1962 print was protected under section 702-9 quoted above. Again, we differ with defendant’s interpretation. There is nothing in the record before us that even infers that the 1962 print was used in the evidence, disposition or adjudication of the juvenile proceedings. Since no facts were forthcoming from the defendant to show that the print was used in evidence in the prior proceeding, we can only gather that the print in question was taken in the ordinary procedural, administrative manner and, consequently, not protected under the section.

The defendant contends that there was no connection between either the Packard, the burglary or himself. The evidence discloses that the Packard was parked in an inferred-inoperable condition near the scene of the burglary. When the two men came out of the gas station, via the broken window, they ran toward the Packard, turned and ran into the field and within moments the Packard left the scene at a very high rate of speed. The automobile and its driver were apprehended within 10 to 15 minutes later. There was testimony that the defendant denied any knowledge of either the Packard or its driver, yet the fingerprints of the defendant were lifted from the car on the same day as the burglary. This was sufficient evidence to establish a connection between the Packard, the defendant and the burglary. The People v. Malmenato, 14 Ill2d 52, 59, 150 NE2d 806 (1958), cert denied, 358 US 899, 3 L Ed2d 148, 79 S Ct 222.

The final point is that the defendant was denied a fair trial because of the manner in which the State presented its evidence and closing argument. The tenor of this portion of defendant’s argument is general rather than specific. We have reviewed the record and find no merit to this contention.

For the reasons stated herein, the judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. John McMullan, Licensee, and the License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 53,072. (Abstract of Decision.)
    First District, First Division.
    December 15, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellant; no brief for appellee.
   Opinion by JUSTICE BURMAN. Not to be published in full.


author: MR. JUSTICE BURMAN

text:
    Lorraine Vilardo, as Administratrix of the Estate of Gustave Vilardo, Deceased, Plaintiff-Appellee, v. Public Taxi Service, Inc., and Otis Ortega, Defendants-Appellants.
    Gen. No. 53,564.
    First District, First Division.
    December 15, 1969.

      Irvin Tischer, of Chicago, for appellants.
    Cohen & Wollack and Epton, McCarthy, Bohling & Druth, of Chicago (Ray Jeffrey Cohen and Bernard E. Epton, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an action prosecuted by an administratrix for personal injuries sustained by plaintiff’s decedent in a collision between the decedent’s automobile and defendant’s taxicab on February 1, 1962. The original complaint was filed by Gustave Vilardo on September 7, 1962. He was later killed in a train accident on February 10, 1966. His wife was appointed administratrix of his estate and substituted as the plaintiff in this suit. The jury returned a verdict for the plaintiff in the amount of $2,200 upon which the court entered judgment and the defendant appeals. It is the defendant’s sole contention, on appeal, that there was no evidence of injury to the plaintiff resulting from the accident and thus no damages for personal injuries could be awarded.

According to the evidence, the defendant’s taxicab driver drove around a double-parked car and then attempted to return to his lane. Because of snow and ice, the rear of his cab smashed into the front of the plaintiff’s car which had been stopped and was not moving. When plaintiff left his car, he was holding his head. The front part of plaintiff’s car was badly damaged. Plaintiff’s wife testified that when he left home the morning of the accident he was very well. When she saw him later in the day, he was in a hospital and appeared nervous and upset. He remained in the hospital for five days. His doctor examined him at the hospital for a week thereafter. He was home from work for about two weeks after he left the hospital and to a certain extent was bedridden. His wife gave him pills prescribed by the doctor.

The defendant argues that the facts that the plaintiff’s decedent was in a hospital, incurred medical bills, lost time from work and took pain pills, were not shown by the evidence to be connected to the accident. We are not in accord with this contention. The jury could find that plaintiff’s decedent who was in good health, was hospitalized shortly after a violent automobile collision. The jury could also find that the decedent was in the hospital for five days, remained away from work for two weeks and took pain pills as a result of the accident.

Evidence of a condition of good health prior to an accident and illness and poor health immediately following it, is sufficient evidence from which a jury may legitimately conclude that the latter condition was caused by the accident. Roewe v. Lombardo, 76 Ill App2d 164, 174, 221 NE2d 521, 526; Knipping v. Chicago Tel. Co., 184 Ill App 48. Plaintiff was not required to disprove every alternative hypothesis suggesting a cause other than negligence in order to recover. May v. Columbian Rope Co., 40 Ill App2d 264, 273, 189 NE2d 394, 398. We hold that plaintiff presented sufficient evidence of injuries and damages sustained by plaintiff’s decedent as a result of the accident to support the jury’s verdict.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Russell Smith, Defendant-Appellant.
    Gen. No. 53,614. (Abstract of Decision.)
    First District, Second Division.
    December 16, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clifton Hale, Junior, Defendant-Appellant.
    Gen. No. 53,851. (Abstract of Decision.)
    First District, Second Division.
    December 16, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Lawrence Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Juan Vasquez, Defendant-Appellant.
    Gen. No. 52,289.
    First District, Fourth Division.
    December 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Laurence J. Bolon, and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Murder. Ill Rev Stats 1965, c 38, § 9-1 (a) (1), (a) (2). JUDGMENT

After a jury trial, defendant was found guilty of the lesser included crime of involuntary manslaughter and was sentenced by the court to a term of 7 to 9 years.

CONTENTIONS RAISED ON APPEAL

1. Defendant was prejudiced when the prosecutor, in his opening statement, related the coroner’s findings to the jury.

2. Defendant was prejudiced when the prosecutor, in his final argument, made personal comment as to defendant’s guilt.

3. References to defendant’s family during trial and in closing argument were also prejudicial to defendant.

EVIDENCE

The evidence is undisputed, as no evidence was introduced on behalf of defendant. On August 5,1966, defendant drove his automobile into the gas station of Ernest Medina, Sr., at a speed of approximately 30 miles per hour. The automobile narrowly missed Medina, who was leaning on a parked car, but did strike Medina’s son, the parked car, and a tow truck. Defendant’s automobile continued across a sidewalk where its left front fender struck the deceased, Nick Natale, who had crossed the street and was almost on the sidewalk, and knocked his body to the middle of the street. After continuing 10 to 15 feet past deceased, defendant put the automobile in reverse and backed it over deceased’s body. Defendant continued to back his car to the gas station, where he emerged from his car carrying a 7-inch pipe.

Medina, Sr. had run to his home about 100 feet away. Defendant asked Medina, Jr. where his father was, and, upon being told, defendant started toward the house and was confronted by Medina, Sr.’s brother. Defendant told him he was going to “get” his brother. Medina, Sr. came out of the house with a gun. The brother, who also had a gun, apparently taken from the gas station, held defendant. After an exchange of words, defendant broke away and fled, but was apprehended by the brothers after a chase.

Adrian Ramos, an acquaintance of Medina, Sr. and defendant, testified that defendant had told him, approximately two months before the occurrence, that he was going to kill Medina, Sr. The witness had informed Medina of the threat.

OPINION

Defendant does not contest the sufficiency of the evidence, but contends that the trial was unfair because the prosecutor in several instances had made prejudicial comments and elicited prejudicial testimony.

Defendant first objects to certain remarks made in the opening statement of the Assistant State’s Attorney who spoke to the jury as follows:

[Y]ou will come to only one conclusion, and that conclusion, which the Coroner himself arrived at, namely, that the decedent died as a result of the injuries inflicted upon him by the vehicle and that this in fact was murder. Thank you.

Defendant’s attorney objected to this statement. The court then asked the defense attorney to proceed with his opening statement, which he did. At this point, the judge met with both lawyers out of the jury’s presence, and defendant’s attorney moved for a mistrial on the basis of what he claimed was a prejudicial opening statement. He argued that since the conclusions of the Coroner, other than the cause of death, would not be admissible, that part of the statement—to the effect that the Coroner had found defendant guilty of murder—was ground for a mistrial. The court reserved its ruling.

We do not agree with defendant’s interpretation of this statement as the only reasonable one, nor do we believe that its effect was seriously prejudicial to defendant. An opening statement is designed to advise the jury of the factual questions involved in the case to prepare them for forthcoming evidence, and to relate what counsel expect that evidence to show. Taken in this light, it is reasonable to conclude that the prosecutor was attempting to apprise the jurors of the medical evidence as to the cause of death (injuries inflicted by defendant’s automobile), and was asking them to con-elude from all the evidence “that this in fact was murder.” Even when viewed unfavorably to the State, opening statements will not be considered as ground for reversal unless it appears that they influenced the jury in a manner resulting in substantial prejudice to defendant. People v. Stahl, 26 Ill2d 403,186 NE2d 349.

As stated in People v. Berry, 18 Ill2d 453, at page 458, 165 NE2d 257:

Where it appears that improper remarks do not constitute a material factor in the conviction, or that they are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed.

In the instant case, the Coroner’s pathologist testified as to the cause of death (multiple internal injuries), and gave no opinion as to the crime charged. Furthermore, the jury received an instruction that statements of counsel are not evidence and that their verdict should be reached on the basis of the evidence, placing no reliance on statements of counsel not supported by the evidence. That the jury did not find defendant guilty of murder, but only of involuntary manslaughter, vitiates defendant’s argument as to the prejudicial effect of the statement. We find that the remark was not sufficiently prejudicial to defendant to warrant reversal.

Defendant next contends that the prosecutor’s closing argument prejudiced defendant because in it he expressed his own opinion as to defendant’s guilt. The rule is that a prosecutor acts improperly if he expresses his own individual opinion or belief in defendant’s guilt, unless he bases that opinion on the evidence. People v. Provo, 409 Ill 63, 97 NE2d 802; People v. Black, 317 Ill 603, 148 NE 281. The alleged improper remarks follow:

“Plea for mercy? Indeed. I am the most merciful person, and my associate is, also. We chose the method of presenting this case. We chose, indeed, what we are asking you to do. We analyzed what we thought was his thinking, and we determined the degree of malice, and we said to ourselves that his malice is not the greatest that we have seen around here, but it’s great enough.
“We began this case by showing some mercy and some compassion for him, but mercy and compassion are a two-way street. A human being can only receive mercy and passion [sic] when he gives mercy and compassion. And did he give it? There’s a man who lived on the morning of August 5th, 1966. You didn’t see him. You saw his brother who looked like him.”
Defense Attorney: “I object, your Honor, this is beyond the bounds.”
The Court: “Overruled. Proceed.”

We find that the prosecutor’s statements were based upon “facts appearing in the proof or on legitimate inferences deducible therefrom,” and were not improper. People v. Ostrand, 35 Ill2d 520, at 531, 221 NE2d 499. He did not lead the jury to believe that he possessed more information in adducing these inferences than that which was available to them.

Nor is there any impropriety manifest in the tone of defendant’s statement, specifically those portions which relate to defendant’s degree of malice and lack of compassion. “It is proper for the prosecuting attorney to reflect unfavorably on the accused and to denounce his wickedness and even indulge in invective.” People v. Ostrand, supra, at 532. Again, we fail to discern substantial prejudice to defendant by reference to malice on his part, since the jury’s verdict found defendant guilty only of involuntary manslaughter, a crime which does not involve malice. Ill Rev Stats 1967, c 38, § 9-3.

Defendant’s last contention is that references to decedent’s family elicited during trial and stated in closing argument by the prosecuting attorney were also prejudicial to defendant. Appearing as a witness for the State, the decedent’s brother responded to the following questions:

Q. (Ass’t State’s Attorney) “Sir, are you acquainted with the fact whether or not Nick Natale was married?”
A. “Yes, he was married.”
Q. “And did he have any children ?”
A. “Two.”

At this point, defendant’s attorney objected (with argument in chambers) that this line of questioning tended to inflame the jury and was not relevant to the issues of the case. The court sustained the objection, stating, “I will instruct [the prosecuting attorney] to stay away from that prejudicial area that you are about to get into.” Defendant argues that the error was not fully corrected because the jury was not instructed to disregard the evidence. We note that defense counsel made no request of the court for such an instruction.

Defendant argues that the two prosecuting attorneys returned to this improper, inflammatory-type comment in their closing argument, which was in part as follows:

“But he lived, and to the extent that his brother testified concerning his existence, he was married and he had two children.”
“May it please the Court, Mr. Gilman, my associate, Mr. Smith, ladies and gentlemen of the jury; what are the civil liabilities for murder? There are none. Counsel has stated repeatedly that he is not seeking mercy, he is not pleading mercy. Yet his entire argument is based thereon. During the course of counsel’s argument he made one point, that is true, no question about it. There is tragedy in this. There is a tragedy to Mrs. Natale because she doesn’t have a husband. To Mrs. Natale’s children. They no longer have a father. A life has been taken.”

Although it has been held that references to a victim’s wife and family may prejudice a defendant in the eyes of a jury (People v. Bernette, 30 Ill2d 359, 197 NE2d 436; People v. Gregory, 22 Ill2d 601, 177 NE2d 120; People v. Dukes, 12 Ill2d 334, 146 NE2d 14), the mere fact that there was such a reference does not, in every instance, require reversal. People v. Jordan, 38 Ill 2d 83, 230 NE2d 161; People v. Golson, 32 Ill2d 398, 207 NE2d 68; People v. Brown, 30 Ill2d 297, 196 NE2d 664; People v. Thomas, 93 Ill App2d 77, 235 NE2d 298. Whether such references are sufficiently prejudicial to warrant reversal depends upon the facts of each case. Considering both testimony and argument of this character, the court in Bernette, supra, stated at page 371:

[W]here testimony in a murder case respecting the fact the deceased has left a spouse and family is not elicited incidentally, but is presented in such a martsner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence. In like manner, we have held that jury argument by the prosecution which dwells upon the decedent’s family or seeks to relate a defendant’s punishment to the existence of family is inflammatory and improper. (Emphasis supplied.)

Recognizing this rule, we must then determine whether the testimony and argument in this case fall within the rule.

The references to the victim’s family in cases cited by defendant to support reversal are substantially more inflammatory than those in the case at bar. In Dukes, supra, deceased’s 18-year-old son testified that he lived with his mother, two sisters and a brother. Defense counsel’s objection to this testimony was overruled. That was followed by a closing argument in which the prosecutor apparently wept as he referred to the “family [defendant] has destroyed” and engaged in other improper argument, including the mention of facts entirely beyond the record. In Gregory, supra, the prosecutor, in closing argument, made a lengthy, impassioned plea with repeated reference to decedent’s wife and children as his “widow” and “orphans.” The prosecutor in Bernette, supra, through a series of questions, “went to the extreme of eliciting the ages of the children involved” and the court found that this prejudiced the defendant in the eyes of an aroused jury.

In the instant case, the testimony elicited from decedent’s brother on direct examination was only incidental and was not of an inflammatory nature. The questioning was brief and cursory, and was abandoned upon defense counsel’s objection, with an admonition from the court not to continue.

We are of the opinion that the prosecutor’s concluding comments, while by no means to be commended, were not so prejudicial to defendant as to deprive him of a fair trial. Considering that defendant’s counsel, in his closing argument, had referred to deceased’s family as presenting a “tragic picture,” the prosecution’s reply merely reiterated such reference. In the context of the prosecution’s closing argument, the overwhelming evidence of defendant’s guilt, and the fact that the jury returned a verdict for the lesser included offense of involuntary manslaughter, we conclude that neither the testimony in question nor the closing arguments were sufficiently prejudicial to require reversal.

Accordingly, we affirm the judgment of the Circuit Court.

Affirmed.

DRUCKER, P. J. and LEIGHTON, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold L. Dunams, Defendant-Appellant.
    Gen. No. 52,305.
    First District, Fourth Division.
    December 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Harold L. Dunams, was charged with the sale of a purported narcotic drug, in violation of Ill Rev Stats 1965, c 38, § 22-40. The section provides in part as follows:

“Whoever agrees, consents or in any manner offers to unlawfully sell, prescribe, administer, transport, dispense or give any narcotic drugs to any person, or offers, arranges, or negotiates to have any narcotic drugs unlawfully sold, prescribed, administered, transported, dispensed or given, and then sells, prescribes, administers, transports, dispenses or gives, or offers, arranges or negotiates to have sold, delivered, transported, furnished, administered, dispensed or given to any person any nonnarcotic liquid, substance or material shall be imprisoned in the penitentiary for any term from 1 year to 10 years.”

After a bench trial, he was found guilty and sentenced for a term of 2 to 4 years. Defendant appeals, contending that the trial court committed prejudicial error in restricting the cross-examination of the informer concerning his place of residence.

On December 16, 1966, Eugene Wheeler offered to make a controlled purchase of narcotics for the police. After searching him and giving him $14 in prerecorded funds, three police officers drove Wheeler to 61st and Prairie Avenue in Chicago. The officers observed Wheeler engage defendant in conversation; they also observed the hands of the two men meet, and upon signal from Wheeler, they arrested defendant. A search revealed that defendant had $13 of the marked money, and that Wheeler had a package, which was subsequently ascertained to be a nonnarcotic substance. Wheeler testified that his conversation with defendant was to the effect that defendant agreed to sell him narcotics.

During cross-examination of Wheeler, the State’s objection to defense counsel’s question as to Wheeler’s place of residence was sustained.

Defendant testified that he sold the package to a person other than Wheeler, and that Wheeler was not present at the time of the sale or arrest. Defendant also testified that he went to school with Wheeler, and recalled seeing him on a farm at the penitentiary.

The sole issue is whether the trial court committed prejudicial error in not allowing defendant to elicit the informer’s address.

Although the extent of cross-examination is generally within the sound discretion of the trial court, a defendant has the right to establish the residence and business of a witness. Alford v. United States, 282 US 687 (1931). In Smith v. Illinois, 390 US 129 (1968), the Supreme Court reversed a narcotics conviction on the ground that defendant was not allowed to elicit the informer’s true name and address, thereby denying defendant the right to an effective cross-examination. Although, as in the instant case, defendant in the Smith case knew the informer, the court did not consider this a controlling factor.

In People v. Shaw, 89 Ill App2d 285, 233 NE2d 73 (1967), the trial court sustained objections to questions concerning informer’s current address and place of employment. This court held that defendant’s right to cross-examination had not been unduly restricted, since he had known the informer prior to trial. We also noted that disclosure of the informer’s address could result in physical harm to her. Upon further appeal, the United States Supreme Court granted certiorari, and remanded the cause back to this court for reconsideration consistent with Smith v. Illinois, supra. Shaw v. Illinois, 394 US 214 (1969). Upon reconsideration, this court held that defendant’s right to cross-examination had been unduly restricted, and that despite strong corroborative evidence, this restriction constituted prejudicial error, since the case remained essentially dependent upon the credibility of the informer. People v. Shaw, 117 Ill App2d 16, 254 NE2d 602 (1969).

In another recent decision by this court, People v. Hall, 117 Ill App2d 116, 253 NE2d 890 (1969), where defendant was not permitted to learn the informer’s address, it was held that defendant had been denied his right to effective cross-examination.

In the instant case, we hold that defendant had the right to elicit the informer’s current address. And although there was corroboration of the informer’s testimony supplied by the police officers, the credibility of the informer remained an important factor in the trial. Consequently the denial of that right of cross-examinatian constituted prejudicial error.

The judgment of the Circuit Court is therefore reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

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


text:
    Esther Sophie Johnson, Executor of the Estate of Simon Johnson, Deceased, Plaintiff-Appellant, v. Allan Garellick, Administrator of the Estate of Nils Johansson, and Bell Savings and Loan Association, Defendants-Appellees.
    Gen. No. 52,350.
    First District, Fourth Division.
    December 17, 1969.
    John E. Porter and Lester A. Bonaguro, of Evanston, for appellant.
    J. Edgar Daniels, Seibert and Daniels, of Chicago, and Cummings and Wyman, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff, as Executor under the will of her deceased husband, appeals from an order denying a citation petition to recover assets which she alleged should not pass pursuant to the terms of a payment-on-death account, but should be deemed a part of the estate passing under the will.

Simon Johnson, decedent, had married plaintiff in September, 1957. She had two living sons by her first marriage. In November, 1957, decedent executed a will in which he bequeathed his entire estate to plaintiff, providing that if she predeceased him, the estate was to go to the two sons. At the time of his marriage to plaintiff, decedent had savings of approximately $23,500 in an account at the Lakeview Trust and Savings Bank. Plaintiff had about $1,500 in a savings account at the same bank. After the marriage, the Lakeview accounts were consolidated and a husband and wife joint tenancy account was created. Decedent also had an account at the Continental Illinois National Bank in an amount not specified, which plaintiff described as “his own money.”

In July, 1958, decedent opened the account in question at Bell Savings and Loan Association (Bell) by transferring $8,000 from his account in the Continental and $2,000 from the joint account at Lakeview. This account, called a payment-on-death (hereinafter “P.O.D.”) account, provided that upon decedent’s death, “the then withdrawal value of the account shall be the property of and belong solely to Nils Johansson (brother) provided that such party survives the undersigned.” The passbook stated, “Simon F. Johnson P.O.D. to Nils Johansson.”

Plaintiff testified that she accompanied decedent downtown on the day he created the “P.O.D.” account at Bell. He had told her beforehand that he could get more interest at Bell. She went shopping while he opened the account, and said that they had no conversation regarding the account at that time. Decedent did not inform plaintiff that he had put his brother’s name on the account, plaintiff first learning of this in December, 1964, when she saw the name on the passbook in the safe deposit box.

She testified that, in January, 1965, she asked decedent about the account, saying, “You got your brother’s name on the book,” and he replied, “That doesn’t mean anything. You have the will. The money will be yours.” Plaintiff had subsequently asked him about the bank account three or four times to “make sure that everything was all right.” He assured her that his brother wouldn’t get the money, because it “wasn’t meant for him.”

Plaintiff’s additional testimony indicated that in 1961 she and decedent had gone to Sweden to visit his brother. His last previous visit there had been in 1954. Decedent communicated with his brother at Christmas time and other holidays, writing at least half a dozen times.

Plaintiff’s sole contention on appeal is that decedent did not intend to make a gift of the “P.O.D.” account to his brother, that the evidence establishes that he intended all of his property, including the money in the “P.O.D.” account, to pass by his will. Plaintiff does not contest the establishment or validity of the ‘“P.O.D.” account in question; moreover, the evidence indicates that decedent was physically and mentally capable of setting up such an account.

The establishment of a “P.O.D.” account is authorized in section 4-10 (c) of the Illinois Savings and Loan Act (Ill Rev Stats 1957, c 32, § 770(c)), which provides in part as follows:

(c) If a person opening or holding a withdraw-able capital account shall execute a written agreement with the association providing that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed between the persons opening the account and the association:

(1) Upon the death of the holder of the account, the person or persons designated by him and who have survived him shall be the owners of the account (as joint owners with right of survivorship if more than one) and any payment made by the association to any of such persons shall be a complete discharge of the association’s obligations as to the amount paid.

That decedent complied with the provisions of the statute is evident. He entered into the agreement with Bell which expressly provided that the account should pass to his brother, Nils Johansson, if the latter survived him, which, in fact, he did.

We note that the agreement entered into by decedent with Bell and the statute authorizing such an account are devoid of reference to any proof of donative intent, and we hold that such proof is not necessary to the establishment or implementation of a “P.O.D.” account.

As this court stated in In re Estate of Gubala, 81 Ill App2d 378, at 382-383, 225 NE2d 646:

The disposition of funds in a “P.O.D. account” is clearly testamentary, not inter vivas, in nature. In order for there to be an inter vivas gift the donor must have donative intent, he must part with exclusive dominion and control over the subject matter and there must be a delivery. Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850. The beneficiary of a “P.Q.D. account” cannot withdraw any of the money prior to the owner’s death and has no legal redress to protect himself against a wasteful dissipation of the funds by the owner. In effect, his interest comes into being only at the owner’s death. The owner of a “P.O.D. account” therefore does not, during his lifetime, part with exclusive dominion and control over the funds therein.

Beyond her point as to donative intent, however, plaintiff contends that there remains the more general question as to whether decedent understood the legal consequences attendant upon his creation of the “P.O.D.” account, relying on In re Estate of Roth v. Roth, 96 Ill App2d 292, 238 NE2d 607; In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445; and In re Estate of Cronholm, 38 Ill App2d 141, 186 NE2d 534. We do not consider these cases supportive of plaintiff’s proposition, but, assuming the legal validity of her position, we conclude that it is not applicable to the facts of the instant case, as outlined above. Plaintiff’s contention to the contrary must therefore fall.

We affirm the order of the trial court denying plaintiff’s citation petition.

Affirmed.

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