author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Phillips, Defendant-Appellant.
    Gen. No. 52,296.
    First District, Third Division.
    June 4, 1970.

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

delivered the opinion of the court.

In a jury trial the defendant was found guilty of the sale of a narcotic drug contrary to the provisions of the Criminal Code (Ill Rev Stats, c 38, § 22-3 (1969)). After a hearing in aggravation and mitigation, the court sentenced him to serve ten to twelve years in the Illinois State Penitentiary. On appeal defendant contends (1) that the closing argument to the jury on behalf of the State contained such inflammatory and prejudicial statements as to warrant a new trial, (2) that an instruction tendered by defendant with respect to the credibility of an addict-informer was improperly refused, (3) that defendant was not proved guilty beyond a reasonable doubt, and (4) that the trial court erroneously denied defendant’s motion for a mistrial after a witness for the State volunteered an allegedly prejudicial statement attributed to the defendant. A summary of the evidence follows.

George Lincoln, a police informer, telephoned the Chicago Police Department on September 15, 1964, and offered to make a controlled purchase of narcotics. Two police officers assigned to the Narcotics Unit, John Campbell and James Arnold, arranged a meeting with Lincoln, at which he was searched and placed in possession of ten dollars in marked and recorded currency. Lincoln was driven to the vicinity of 33rd Street and Indiana Avenue in the City of Chicago, where defendant was observed walking south on Indiana Avenue. Lincoln approached him and asked for some heroin. Lincoln testified that while on the sidewalk he gave defendant the marked money. They went into the vestibule of an adjacent apartment building where, according to Lincoln, defendant gave him two tinfoil packets which were produced from what “looked to be like a brown envelope.” While Lincoln and defendant were standing on the sidewalk, they were observed by the two police officers. Both officers testified that they saw no money pass while defendant and Lincoln were in view on the sidewalk, nor did they find a brown envelope when defendant was arrested in a tavern a short distance from the scene. Nine dollars of the marked money was found on the defendant’s person and, according to both policemen, when the defendant was brought to police headquarters for questioning, he voluntarily admitted his guilt. A police chemist testified that the tinfoil packet contained heroin.

Defendant was the only witness in his own behalf. He denied having sold any heroin to Lincoln and testified that at Lincoln’s request he exchanged a ten dollar bill for smaller bills in the vestibule of the apartment building. We proceed to a consideration of defendant’s first point with respect to improper remarks made by the State’s Attorney.

Defendant charges that three separate remarks in the rebuttal portion of the State’s closing argument denied him his right to a fair trial. The first statement to which he objected involved the suggestion of an illicit relationship between the defendant and two women. The record reveals that defendant had testified to living with two women in two separate apartments on September 14 and 15, 1964. At the time of his arrest on September 15, 1964, he was unemployed and on welfare. The State’s Attorney in his closing argument said, “If you have a reasonable doubt that a man who is living with two women and supporting them, and if you have a reasonable doubt. ...” A defense objection brought the statement to an end at that juncture. Statements based on facts and circumstances proved, or such as might reasonably be inferred therefrom, are not to be discountenanced by the courts. People v. Myers, 35 Ill2d 311, 220 NE2d 297; People v. Miller, 13 Ill2d 84, 148 NE2d 455.

The second portion of the argument to which defendant objected related to the testimony of George Lincoln, the addict-informer. The Assistant State’s Attorney said:

“Sure, we put an addict on the stand, a man who used to be an addict, a man who is trying to straighten himself out, and who might be able to straighten himself out if we could get somebody like Phillips off the street, that will sell it to anybody for his own purposes, for his own gain. If we can get them off the street, then maybe our children will be safe.”

Defendant’s attorney objected and moved for a mistrial. The judge cautioned the prosecutor to confine his remarks to the evidence. It is not improper for the prosecuting attorney to reflect unfavorably on the character of the accused and to denounce his alleged wickedness. People v. Wright, 27 Ill2d 497, 190 NE2d 287; People v. Moore, 9 Ill2d 224, 137 NE2d 246; People v. Provo, 409 Ill 63, 97 NE2d 802. Such argument should be within the bounds of reason and relevance. However, not every ill-advised statement in closing argument warrants a reversal. People v. Turner, 82 Ill App2d 10, 226 NE2d 667. Defendant’s objection brought an immediate direction by the court, cautioning the attorney for the State to confine his comments to the evidence. Improper remarks of counsel do not constitute reversible error unless they result in substantial prejudice to the defendant. People v. Nilsson, 44 Ill2d 244, 255 NE2d 432. The action of the trial judge in immediately reprimanding the State’s Attorney erased what little prejudice may have otherwise resulted from the statement and a reversal is not warranted. People v. Daugherty, 43 Ill2d 251, 253 NE2d 389.

Finally, objection was made to another statement in the State’s closing argument which defendant contends improperly implied that defense counsel sought to conceal certain facts from the jury. The State’s Attorney said:

“If you will remember, after cross-examination I asked Mr. Lincoln if there was any reason why he gave his testimony, at which time the Public Defender objected, and that objection was sustained, and I did not go into the subject any further.”

That statement was in direct response to the defense attorney’s forceful and rather lengthy argument to the jury that Lincoln was paid for his testimony. Lincoln on cross-examination denied having been paid, and when the prosecuting attorney again asked him on redirect examination if there was any reason why he gave his testimony, the defense attorney interposed an objection which was sustained. Viewed in that context, the State’s Attorney’s comment was a response invited by the closing argument of defendant’s attorney. People v. Myers, 35 Ill2d 311, 220 NE2d 297; People v. Smith, 24 Ill2d 198, 181 NE2d 77. It is difficult to conceive how any prejudice could result from that comment since the only evidence, if any, which the jury could conclude was being withheld would be that Lincoln had not been paid. That would be in accord with all the testimony relating to that issue.

At the close of the case the jury was generally instructed to disregard any statements made by counsel which were not supported by the evidence. The closing argument on behalf of the State was not such as to warrant a retrial.

Defendant’s next contention is that it was error for the trial court to refuse his tendered Instruction No. 7 which purported to guide the jury in their determination of the credibility of a narcotic addict. The evidence disclosed that Lincoln, who also used the name Ranee Aldridge, had been using heroin since 1948; that his habit cost him twenty-five to thirty dollars a day; that he had not had steady employment since 1948 and that he would shoplift to get money to buy narcotics. Although he denied having used any heroin within six months prior to the trial, he admitted using narcotics in September 1964, the month in which the events to which he testified allegedly occurred. He is, according to the testimony of Officer Arnold, a “special employee” of the Chicago Police Department, since he had been working as an informer for over a year. Lincoln testified that this was voluntary work and that he received no pay. While an instruction on the credibility of this witness was clearly in order, the instruction tendered by the defendant was an incorrect statement of the applicable law. It read as follows:

“The court instructs the jury that when determining the evidentiary worth of the testimony of a narcotic addict, the jury must not judge the testimony as it would that of another type of witness. The jury must look upon the testimony of a narcotic addict with great suspicion, and act upon it with great caution, and unless the jury is satisfied from, such evidence of the guilt of the defendant beyond all reasonable doubt, it is the sworn duty of the jury to return a verdict of not guilty.” (Emphasis added.)

The final clause instructs the jury to find the defendant not guilty if the testimony of the addict does not convince them beyond all reasonable doubt of the defendant’s guilt. It is fundamental that in determining the ultimate question of guilt or innocence, all the evidence must be considered, not merely that of the addict. The testimony of the police officers as to defendant’s admission as well as the corroboration provided by recovery of the marked money on a search of the defendant plus the packets of heroin obtained from Lincoln are all to be considered. The limiting language of the instruction in question rendered it improper and the court’s ruling was correct. Moreover the court gave a proper instruction on that phase of the case. It instructed the jury that the testimony of an addict is to be scrutinized with great caution and if the jury were to find that a witness was an addict or used narcotics at about the time of the alleged crime, such finding would be an important factor going to the general reliability of the addict. People v. Perkins, 26 Ill2d 230, 186 NE2d 330; People v. Bazemore, 25 Ill2d 74, 182 NE2d 649.

Defendant’s third contention is that the evidence was insufficient to prove his guilt beyond a reasonable doubt. The evidence established that Lincoln came into the possession of two packets of heroin after meeting defendant in the plain view of the police officers. It was shown by a prior search that before meeting defendant, those packets were not on Lincoln’s person. Although the actual sale was not observed by the police officers, Lincoln’s testimony as to its occurrence is corroborated by the heroin found in his possession when he emerged from the vestibule of the apartment building. Another corroborating circumstance is the recovery of the marked money on the defendant. Finally, both police officers testified that defendant admitted his guilt when he was taken to the police station. Officer Arnold testified that he asked the defendant whether he had sold the narcotics, to which defendant responded, “I sold the stuff, you got me.” Officer Campbell could not recall the defendant’s exact words, but testified that they were to this effect, “You got me for sale.” The evidence establishes the defendant’s guilt beyond all reasonable doubt.

Defendant’s final contention is that his motion for a mistrial should have been granted when Officer Arnold testified to a statement allegedly uttered by defendant at the time of his arrest. Arnold testified that when defendant was arrested in the tavern, he was asked about the marked money and he said at that time that he did not know how it came into his possession. After a conference in chambers the trial judge denied the motion for a mistrial but sustained the objection to the statement and cautioned the jury in the following words:

“Ladies and gentlemen of the jury, there was an objection to a volunteered statement of the witness relating to words uttered by the defendant at the time of his arrest. That objection was sustained. Those words were stricken from the record, and you are instructed to disregard them.”

The trial court’s admonition was adequate to remove whatever prejudice may have been created by the witness’ unsolicited statement. There is no contention that the attorney for the State acted in bad faith, and the trial court properly denied the defendant’s motion for a mistrial. People v. Moore, 35 Ill2d 399, 220 NE2d 443.

We find no material error in the record and the judgment is accordingly affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellant, v. John Healy and Edward Healy, Defendants-Appellees.
    Gen. No. 53,135.
    First District, Third Division.
    June 4, 1970.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (James B. Zagel, Assistant State’s Attorney, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellant (reply brief).
    George R. Bieber, Edward Marvin Genson, and Sam Adam, of Chicago, for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

This is an appeal by the State from an order of the Circuit Court quashing a search warrant and suppressing evidence seized pursuant to that warrant. The warrant issued by a magistrate commanded the search of the persons of the two defendants and of certain described premises located at 8247 North Odell Avenue, Niles, Illinois. The warrant also ordered the seizure of three jewelry cases containing specifically described jewelry.

The search warrant was issued on the basis of an affidavit made by a police officer. The affidavit recited that on the same date the affiant met with a confidential reliable informant who had furnished him with information in the past which had resulted in arrest and convictions. The affidavit went on to recite that the informant had told affiant that he was on the above described premises on the same date and that Edward Healy had shown him the jewelry referred to above. The affidavit further recited that Healy had told the informant that the jewelry was stolen from a jewelry salesman on the preceding day; and that the jewelry in question had been offered for sale to informant who said that he would let Healy know at a later time. The affidavit also recited that the police department was advised that a theft of jewelry had occurred in Lincoln, Illinois on the preceding day and that jewelry in the value of $23,000 had been stolen from Ray Cruze.

The warrant was executed on the following day, and various items of jewelry belonging to Cruze were recovered. Defendants were then indicted for theft of the property of Cruze. Thereafter defendants filed a motion to quash the search warrant and to suppress the evidence, alleging among other points that there was in fact no informant and that the police officer had committed perjury in making the affidavit in support of the search warrant. The motion made by defendants also requested that the informant be produced for an in camera hearing outside the presence of defendants.

After conferences in chambers with defense counsel and the Assistant State’s Attorney, the trial judge stated that he was convinced that there was no informant, and he demanded that the informant and the police officer be produced for an in camera hearing. When the State refused to do so, the trial court entered an order quashing the search warrant and suppressing the evidence. The State appeals, contending that defendants had no right to look behind the search warrant and thus challenge the matters stated under oath which led to the finding of probable cause and the issuance of a search warrant by the magistrate.

In a recent decision, People v. Bak, 45 Ill2d 141, 258 NE2d 341, Gen. Nos. 41151, 51315 (1970), our Supreme Court was faced with precisely the same question, and their holding is dispositive of the issue in the instant case. In that case, the court held that the issuance of a search warrant represented a conclusive judicial finding of the existence of probable cause and that any subsequent hearing must be limited to an examination of the face of the complaint and warrant. In so holding, the court stated:

“The majority of this court believes that both constitutions contemplate only that a judicial officer find probable cause for the issuance of a warrant based on the evidence under oath that has been presented to him by the one requesting the warrant. It is contemplated that the credibility of the affiant or others offering evidence is for the judicial officer. If he finds the evidence worthy of belief and sufficient to form probable cause, this judicial determination cannot be relitigated through a later disputing of the evidence.”

Thus under the holding in Bak, we find that the trial court erred in permitting defendants to look behind the search warrant which was valid on its face and in allowing them to challenge the truthfulness of the allegations of fact on which the warrant was issued.

The order of the Circuit Court quashing the search warrant and suppressing the evidence is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded.

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


text:
    Michael J. Lynch and Hartford Insurance Company, Plaintiffs-Appellants, v. Wolverine Insurance Company, a Foreign Corporation, Defendant-Appellee.
    Gen. No. 53,575.
    First District, Third Division.
    June 4, 1970.

      Frank Glazer, of Chicago (John W. Purney, of counsel), for appellants.
    E. Paul Lanphier, of Arlington Heights, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Michael Lynch and Hartford Insurance Company (Hartford) brought this action to collect on a draft issued to them by the defendant. It is undisputed that when the draft was presented for payment, the defendant refused to honor it. When the case was called for trial, the court after some colloquy with the lawyers and the examination of some documents entered judgment on the pleadings for the defendant, although the defendant made no motion for such procedure. From that judgment the plaintiffs appeal. They contend that triable issues of fact were raised by the pleadings and that they were denied their right to a trial on the merits.

Counsel for the defendant-appellee has filed an appearance in this court but has not filed a brief. Although it has been held that that fact alone is sufficient to permit a reviewing court to summarily reverse the judgment of the trial court, the ends of justice are better served if litigation is determined according to the substantive rights of the parties and not by procedural default. As a general rule the trial court’s judgment should not be reversed except after consideration of the merits of the appeal. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill App2d 264, 254 NE2d 814; Perez v. Janota, 107 Ill App2d 90, 246 NE2d 42; Matyskiel v. Bernat, 85 Ill App2d 175, 228 NE2d 746. We will therefore consider the issues involved. The facts follow.

Defendant issued an automobile liability insurance policy to one Richard McCarthy. It included a property damage clause with a coverage limit to $5,000. The policy was in effect on December 24, 1966, when McCarthy drove his automobile into three parked cars. Plaintiff Lynch was the owner of one of the damaged cars. He was insured under a policy issued by the plaintiff Hartford which covered the loss under a $50 deductible collision clause. Lynch’s car was repaired at a cost of $647.41, of which Lynch paid $50 and Hartford paid the balance. Hartford notified the defendant of the claim it and Lynch had against McCarthy for the cost of the repairs and sought reimbursement from the defendant pursuant to the policy issued to McCarthy. On March 17, 1967, the defendant, in apparent recognition of its liability, issued its draft for $647.41 to the plaintiffs for the full amount claimed. Thereafter, however, the defendant refused to honor its draft and plaintiffs brought this action.

The complaint charges that defendant wrongfully and fraudulently refused to honor the draft and that it was indebted to plaintiffs in the sum of $647.41. In its answer the defendant admitted the issuance of the draft and that it stopped payment thereof on the ground that it had “already expended its full limits under the property damage liability coverage of a policy issued to one Richard McCarthy,” and denied owing the plaintiffs any sum whatsoever. Plaintiffs filed a reply in which they denied that defendant had expended funds in the amount of the policy limit and alleged that even had such amount been expended, that defense could not be raised since defendant had entered into an agreement with plaintiffs to pay their claim.

The case was called for trial on June 3, 1968. Three witnesses were sworn but were not allowed by the court to testify. The judge stated that he was entering judgment “on the pleadings” for defendant after hearing argument of counsel and examining the insurance policy issued by the defendant to McCarthy. Counsel for plaintiffs objected, saying he had not yet put on his case, to which the judge replied that the defendant “had no liability under his contract of insurance” because “he had already exhausted or exceeded the policy limit on this issue.” The judge concluded: “[T]he matter in his Answers are proven and the matter you [plaintiffs] stated in your Reply are not proven.” The hearing was terminated and judgment entered.

It appears that two factual issues are presented by the pleadings, namely: (1) whether the defendant had previously expended sums in excess of the policy limits, and (2) whether that defense could be raised in view of the agreement between the defendant and the plaintiffs to pay the plaintiffs’ claim. Neither of those issues can be resolved without a factual determination by the trier of fact. It is fundamental under our system of law that litigants have the right to produce witnesses and introduce evidence on controverted facts. Ill Const, art II, § 2 (1870); Shellabarger Elevator Co. v. Illinois Cent. R. Co., 278 Ill 333, 116 NE 170; Marr v. Marr, 43 Ill App2d 25, 192 NE2d 559. If the court had a sound reason for refusing to hear plaintiffs’ witnesses, it is not disclosed by the record.

The judgment of the trial court is reversed and the cause is remanded for retrial and for such other and further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Luke McKinney and Leonard Tucker, Defendants-Appellants.
    Gen. No. 53,939.
    First District, Third Division.
    June 4, 1970.

      Sam Jaffe and Charles Tannen, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendants, Luke McKinney and Leonard Tucker, were indicted with a third man, Ned Owens, for robbery. McKinney was also indicted for aggravated battery. McKinney and Tucker were found guilty in a non-jury trial of the lesser included offense of attempt to commit robbery, and were sentenced to prison terms of ten to fourteen years. McKinney was also convicted of aggravated battery and given a concurrent penitentiary sentence of from one to five years. The defendants contend they were not proven guilty of attempt robbery beyond a reasonable doubt and that they were sentenced without a hearing in aggravation and mitigation. McKinney further contends that he was improperly sentenced because the offenses for which he was convicted were part of the same act.

About 9:20 a. m. on December 21, 1962, Mae Scott, the owner of a Chicago tavern agreed to cash a $90.26 check for a customer named L. B. Bowie. About 15 to 18 people were in the tavern. She laid the money on the back bar near the cash register because Bowie had gone to a telephone booth located at the north end of the bar near the front entrance. At this time Tucker entered the tavern and bought a package of cigarettes. As Mrs. Scott gave Tucker his change, McKinney entered the tavern, fired a shot and came behind the bar. She asked him what was going on. When he shot again, Mrs. Scott ran into a storeroom at the south end of the bar. Bowie emerged from the phone booth as McKinney came in. McKinney shoved him, hit him on the head with the gun and fired a shot which struck a stove next to him. Bowie ran to the storeroom where Mrs. Scott had taken refuge. McKinney followed them. He struck Mrs. Scott across the face with his gun and as she fell, fired a shot over her head. He fired a fourth time and the bullet struck Bowie in the arm. He then ran behind the bar, turned over whiskey bottles, grabbed the money on the back bar and ran out the front door.

While this was going on, Tucker stood in the middle of the floor with a gun in his hand. The patrons scurried out of the tavern and the police department was notified. Raymond Kozakowski, a driver of a beer truck who had made a delivery to the tavern, was waiting to be paid. When he heard the shooting, he thought a fight had broken out and he started to leave. He was met at the front door by Owens who shoved him, drew a gun and said “get back there . . . get in the washroom.” Kozakowski went to the washroom and while there he heard a scream and more shooting. When he came out he saw Mrs. Scott and Bowie. She had a long, bleeding gash near her eye and Bowie was holding his arm.

The men fled in an auto. Its description had been radioed to police cars and Sergeant Dominie Ronchetto of the Chicago Police Department saw it, pursued it and stopped it. He ordered the three occupants out and searched them. He found two guns on Tucker and a third gun in the auto near where McKinney had been sitting. Owens, the driver of the car, had no weapon. Less than $20 was found on the three men. They were arrested at 9:40 a. m., placed in lineups and identified : Tucker, McKinney and Owens by Kozakowski; Tucker and McKinney by Mrs. Scott and Bowie.

Tucker and McKinney admitted being in the tavern. Tucker testified that on the morning of the affray he was with McKinney and Owens and left them to buy some cigarettes. More than 30 people were in the tavern and the bar was crowded. As he received his change he heard gunshots and ran to the rear with everyone else. He looked over his shoulder and saw McKinney fighting with the man up in front. He then left, joined Owens, who was standing outside, and got in Owens’ auto. McKinney testified that he also entered the tavern to purchase cigarettes. Before he could make his purchase a patron jumped up, started to holler that he was the wrong fellow and grabbed McKinney. They scuffled and others, including a woman, joined in the fray. He drew his revolver after the woman struck him, and tried to fight them off. Some people were hit, the gun went off when someone snatched it and he got loose and fled. After both defendants testified, the State introduced into evidence exemplified copies of their criminal records.

It is the defendants’ contention that an altercation occurred in the tavern, but no robbery or attempt robbery. They point out that there was no demand for money and that none of the witnesses thought a robbery was taking place: Mrs. Scott asked McKinney what he was doing, Kozakowski thought a fight was in progress, Bowie testified (at the preliminary hearing) that when McKinney shoved him he kept saying, “You don’t know nothing about me, you don’t know nothing about me,” and none of these witnesses equated the altercation with a robbery until they discovered the $90.26 was missing. The defendants argue further that it was not proved who took the money: they had only $10 to $20 among them when arrested and no money was found in their car; that although Mrs. Scott testified she saw McKinney take the $90.26 from the back bar, she said at the preliminary hearing she did not know who took it. Finally, the defendants point out that the trial judge found them guilty only of attempt robbery which, they logically urge, shows that he was not convinced that they robbed anyone of any money.

Robbery is committed when a person takes property from the person or presence of another by the use of force or by threatening the imminent use of force. Ill Rev Stats 1969, c 38, par 18-1. A person commits attempt robbery when with intent to commit robbery he does an act which constitutes a substantial step toward its commission. Paragraph 8-4. He acts with intent when his conscious objective is to engage in that conduct. Paragraph 4-4. His intent may be inferred from his words and actions and other circumstances. People v. Uselding, 107 Ill App2d 305, 247 NE2d 35 (1969).

In acquitting the defendants of the robbery charge, the trial judge gave them the benefit of the doubt created by Mrs. Scott’s contradictory testimony and the fact that $90 was not found in their possession. In finding the defendants guilty of attempt robbery the judge concluded that their intent in entering the tavern was robbery. This conclusion was fully supported by the evidence. McKinney and Tucker came into the tavern armed with revolvers while Owens, also armed, guarded the front entrance. Although words such as “hold-up” or “stick-up” were not used, McKinney started shooting at once and Tucker drew his gun. McKinney admitted in his testimony that he went behind the bar. When Kozakowski tried to leave by the front door Owens ordered him to the washroom. An immediate robbery may have been frustrated by Mrs. Scott and Bowie running into the storeroom. McKinney, apparently fearful that weapons might be secured, chased after them and slugged one and shot the other. By this time all the patrons had hurried out and there was imminent danger that police officers would be arriving. McKinney, in his haste to leave, knocked over liquor bottles and, with Tucker, rushed out. When a case is tried without a jury, the trial court must determine the credibility of the witnesses and the weight to be given their testimony. Unless the evidence is so unsatisfactory that a reasonable doubt is raised of the defendant’s guilt, the finding of the court will not be overturned. People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966). The entire conduct of the defendants demonstrates that their purpose was robbery and that substantial steps were taken to accomplish this purpose. The court’s finding that they were guilty of attempt robbery was within the range of the evidence and will not be disturbed.

After finding the defendants guilty, the court inquired: “Are there any matters in aggravation or mitigation that either the State or the defense counsel wish to bring to the attention of the Court at this time?” The defense said nothing. The assistant State’s attorney asked for a recess in order to file a petition to sentence the appellants as habitual criminals. When court reconvened no petition was presented and the sentences were imposed. The defendants now contend that they were sentenced without a hearing in aggravation and mitigation as required by Ill Rev Stats 1961, c 38, § 1-7 (g).

The burden of presenting mitigating evidence is on the defendant. The defendants were given the opportunity to present mitigating circumstances before the court recessed and they did not do so. Their failure to proceed at that time and their failure to request a mitigation hearing after the court reconvened constituted a waiver of such a hearing. People v. Nelson, 41 Ill2d 364, 243 NE2d 225 (1968); People v. Smith, 62 Ill App2d 73, 210 NE2d 574 (1965).

The final argument, on behalf of McKinney only, is that the court erred in imposing sentences on him for aggravated battery and attempt robbery because both offenses were part of the same act. Criminal offenses arising from the same conduct may not be punished separately, regardless of whether the sentences are consecutive or concurrent. Ill Rev Stats 1961, c 38, par 1-7(m); SHA, c 38, § 1-7; People v. Schlenger, 13 Ill App2d 63, 147 NE2d 316 (1958); People v. Weaver, 93 Ill App2d 311, 236 NE2d 362 (1968). In the present case, however, more than one act was involved. The offense of aggravated battery, committed at the entrance of the storeroom, was an act separate and distinct from the offense of robbery or attempt robbery. The court did not err in imposing sentences for both aggravated battery and attempt robbery, and the judgment will be affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert F. Lawrence, Defendant-Appellant.
    Gen. No. 54,196.
    First District, Third Division.
    June 4, 1970.

      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 Michael J. Gold-stein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant Robert F. Lawrence was charged with the crimes of attempted murder and aggravated battery. After a bench trial, he was found not guilty of attempted murder. However, he was found guilty of aggravated battery and sentenced to a term of two to five years. He appeals, contending that he was not proved guilty beyond a reasonable doubt. The facts follow.

Ruth McDowell, the complaining witness, sustained injuries to the head from gunshot wounds as the result of an altercation involving defendant. The incident occurred in the hallway of an apartment building next door to her residence.

Ruth McDowell testified that she went to visit her nephew, who lived in a third-floor apartment located at 6150 South Greenwood, Chicago, at about midnight or the early morning hours on September 10, 1968. She knocked on the door, but apparently her nephew was not home. As she started to leave, defendant ran out of another third-floor apartment and struck her in the face with his fist. She fell as he struck her again, and saw a gun in his hand. A man by the name of Junior came out of an apartment and told defendant not to shoot. She heard two loud noises, and was shot on the top and back of her head. She felt blood running down her neck. She fell partly down the stairs and was taken to the hospital. She had no conversation with defendant during the occurrence.

She also testified that she had known defendant for several years, and had gone out with him on numerous occasions. She had seen him earlier in the evening; they did not argue, nor did she threaten him. She did have an argument earlier with a girl, who was apparently defendant’s girl friend.

Officer William Bigby testified that on the following evening, some twenty hours after the incident, he observed defendant walking along the sidewalk carrying a gun in his hand. As the officer approached, defendant attempted to place the gun in his pocket. The officer then placed him under arrest. Defendant subsequently told the police officer that he shot the girl accidentally. Both the victim and the officer identified a gun introduced into evidence as being similar to the gun defendant had on the night in question.

The examining physician testified for the State by stipulation that at least a fragment of a bullet was lodged in Ruth McDowell’s head at the time of his examination.

Defendant’s sister testified for the defense that on the evening in question she was visiting her sister-in-law. As she was preparing to leave, she saw defendant and Ruth McDowell in an argument. McDowell had an orange towel in her hand, and in the course of the argument pulled the gun from the towel and threatened to kill defendant. As defendant attempted to take the gun away, it went off and injured the complaining witness. Defendant’s sister also testified that her brother never had a gun, and that she had seen McDowell with a gun previously. Junior, her sister-in-law’s cousin, was also in the apartment, along with other friends.

Defendant testified that he was a member of the armed services and home on leave at the time of the occurrence. He knew Ruth McDowell since 1964. He saw her on September 10, 1968, as he was walking to the store. She was drunk and staggering, and threw a beer can at him. When he returned, he saw her again, arguing with a girl named Diane. When Ruth McDowell started to call him names, he advised Diane to go upstairs. McDowell then threatened to have her brothers jump him, and he also went upstairs. He next saw her on the third floor. She pulled a gun from under her sweater, so defendant grabbed both of her wrists and put his weight on her forcing her to lie on the floor. She had her finger on the trigger, and the gun went off once. McDowell got up and ran, and defendant left the building through the back exit. Defendant also testified that he kept the gun because of his fear of her brothers.

Defendant contends that he was not proved guilty of aggravated battery beyond a reasonable doubt, arguing that the evidence did not support a finding that he intentionally or knowingly committed aggravated battery, and also arguing that there was so much conflict in the evidence that it created a reasonable doubt as to his guilt.

Defendant thus raises the question of credibility of witnesses and the weight to be given to their testimony. However, this court on review cannot substitute its judgment for that of a trier of fact and we cannot reverse a judgment because the evidence is conflicting unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Novotny, 41 Ill2d 401, 244 NE2d 182 (1968); People v. Anderson, 30 Ill2d 413, 197 NE2d 24 (1964).

Defendant has not pointed out any discrepancies in the testimony of the victim nor in the evidence presented by the State, but argues that her testimony was incredible and unbelievable. We do not agree. We find that her testimony was plausible, positive and credible. She testified that defendant came up to her, and without warning, struck her in the face twice with his fists, and then shot her. She also testified that she earlier quarreled with defendant’s girl friend, thus offering a motive for his assault. Clearly, if believed, her testimony was sufficient to establish that defendant intentionally inflicted great bodily harm upon her. Moreover, evidence of the nature and intent of the wounds suffered by a victim of an aggravated battery is admissible as corroborative evidence of the crime. People v. Thome, 111 Ill App2d 215, 250 NE2d 9 (1969). And in the instant case, the doctor testified that a fragment of a bullet was lodged in the head of the victim. Additionally defendant’s flight from the scene of the occurrence coupled with his attempted concealment of the gun when approached by the police was not consistent with a hypothesis of innocence and constituted further corroborative evidence.

We find no merit in defendant’s argument that the lack of any mention of contusions on the victim’s face in the doctor’s testimony affected her credibility so as to create a reasonable doubt of his guilt. The medical testimony which was introduced into evidence by stipulation dealt solely with an examination of the victim’s skull by a physician, and had no reference to facial bruises. Nor did the State’s failure to call a man named Junior as a witness on its behalf raise any inference that his testimony would have been adverse to the State. In People v. Jones, 30 Ill2d 186, 195 NE2d 698 (1968), the court held that the failure by the State to call every witness to a crime does not give rise to a presumption in defendant’s favor. Moreover, the evidence disclosed that the witness named Junior was related by marriage to defendant, and was equally available as a witness to the defense.

The credibility of witnesses is for the trial court to determine, with its superior opportunity to observe their manner and demeanor, and that determination will generally not be disturbed on review. People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966). In the instant case, we cannot say that the trial court erred in believing the testimony of the victim rather than that presented by the defense, and we find that defendant was proved guilty beyond a reasonable doubt.

Under the heading that he was not proved guilty beyond a reasonable doubt, defendant also mentions two alleged trial errors upon which we must comment.

Defendant maintains that it was error to permit the gun to be admitted into evidence because it was not identified adequately by the police officer and the victim. Generally, it is within the discretion of the trial court in allowing demonstrative evidence. In The People v. Perkins, 17 Ill2d 493, 162 NE2d 385 (1959), the court held that a gun identified as having the appearance of the gun used in the robbery was properly admitted into evidence. Moreover in the case at bar, defendant suffered no prejudice from the introduction of the gun into evidence. His own testimony was that Ruth McDowell was shot by the gun in question. His defense was that she shot herself, and that the gun used belonged to her.

Defendant also argues that the trial court committed reversible error in sustaining the State’s objection to defense counsel’s question of defendant: “Did you at any time intend to shoot Ruth McDowell?” The ruling caused no prejudice to defendant. He had testified fully that he did not shoot the complaining witness, and did not intend to do so.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE STAMOS

text:
    Thomas Biel, Plaintiff-Respondent-Appellee, Cross-Appellant, v. Charles W. Wolff, Defendant-Petitioner-Appellant, Cross-Appellee.
    Gen. No. 52,832.
    First District, Fourth Division.
    June 10, 1970.

      John G. Phillips, of Chicago (Ellis B. Rosenzweig, of counsel), for plaintiff-respondent-appellee, cross-appellant.
    Beverly & Pause, of Chicago (Robert O. Duffy, of counsel), for defendant-petitioner-appellant, cross-appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Thomas Biel, brought an action for damages for personal injuries resulting from the alleged negligent operation of a motor vehicle by defendant, Charles W. Wolff, who struck plaintiff, a pedestrian. The jury returned a verdict for defendant. Plaintiff filed motions for judgment notwithstanding the verdict on liability or in the alternative for a new trial. The court granted a new trial on the grounds that prejudicial errors were committed and the verdict was contrary to the weight of the evidence. Defendant filed a petition for leave to appeal which was allowed. Plaintiff also appeals and contends that the court should have granted plaintiff’s motion for a judgment notwithstanding the verdict on the issue of liability.

The accident occurred on Sunday, February 3, 1963, at approximately 1:00 a. m., on Joe Orr Road west of Dixie Highway in Cook County, Illinois. It was a clear, cold winter night and the temperature was 7 degrees above zero. There was a recent accumulation of snowfall of about 6 inches. However, the road was cleared of snow but snowbanks were created on each side of the road by snowplows. Joe Orr Road is a 2-lane east-west blacktopped road and is 20 feet wide. Along the north side of Joe Orr Road, west of Dixie Highway is the Ranch House Restaurant, which is set back from the road with a parking lot and two gravel driveways leading into Joe Orr Road. Along the south side of Joe Orr Road, De Angelis Court runs south from Joe Orr Road, approximately % block west of Dixie Highway and % block further west Willow Street runs south from Joe Orr Road, both these streets form a “T” intersection with Joe Orr Road. There are no sidewalks off either side of Joe Orr Road. Defendant’s vehicle struck plaintiff some 200 feet west of the intersection of Dixie Highway and about 20 to 25 feet east of the western driveway of the Ranch House parking lot and north of the west sidewalk of De Angelis Court.

Plaintiff was a 20-year-old college student, and on the evening of February 2, 1963, he was in the company of two friends, Phillip Piazza and Craig Benjamin as they walked east on the north side of Joe Orr Road on their way to visit a nearby bowling alley. Piazza crossed on the south side of the road in an attempt to seek a ride from some eastbound motorist. Plaintiff testified he continued to walk on the shoulder of the north side of Joe Orr Road and he was about 15 to 20 feet directly behind Benjamin. The last thing plaintiff remembered was that he approached the Ranch House Restaurant driveway, at which point he was struck by defendant’s vehicle.

Plaintiff testified that he was walking on the dirt and gravel shoulder of the road at the moment of impact. Plaintiff and defendant testified that there were 2 or 3 feet between the edge of the road and the snowbank which had been created by snowplows.

Defendant testified that he was operating his vehicle at about 20 or 30 m. p. h. and proceeding in a westerly direction on Joe Orr Road and his wife was seated next to him. As they crossed Dixie Highway he observed an eastbound car and concentrated on meeting and passing it safely. As the two vehicles approached each other, plaintiff was perceived about 20 to 25 feet ahead of defendant’s vehicle running from south to north in the westbound lane. He applied his brakes, but the right front of the vehicle struck plaintiff.

Defendant’s wife testified that it was a clear, black night and everything was dark along Joe Orr Road west of Dixie Highway. There was an approaching eastbound vehicle in its proper lane and she observed a figure in front of this eastbound vehicle and was about to call to her husband when she observed a figure in front of their car moving from south to north, and another on the shoulder of the road. The three figures appeared simultaneously. She closed her eyes and screamed. The brakes of their car were being applied before or just about the same instant she screamed.

Piazza was called by plaintiff and testified there was artificial lighting in the area of the occurrence. He had crossed over to the south shoulder and was some 5 to 10 feet east of plaintiff and Benjamin when he saw defendant’s vehicle with its headlights lighted and at about the same time, saw the eastbound vehicle. Defendant’s vehicle passed and he observed that it was in its proper lane. Then he heard plaintiff struck and saw him hit the pavement, and noticed defendant’s vehicle still in motion in its proper westbound lane.

Frank Opsahl testified for the defense that he was a passenger in a vehicle proceeding west on Joe Orr Road at approximately 1:00 a. m. and observed 2 or 3 figures running or trotting in a westerly direction on the north side of the road somewhere in front of the Ranch House Restaurant. He further testified that the snowbank on the north side of the road came up to the road. That his vehicle continued one block west to Willow Street and turned around to reenter Joe Orr Road when he became aware that an accident had taken place in front of the Ranch House Restaurant.

It is undisputed that the headlights of defendant’s vehicle were functioning properly. Defendant testified he could see between 340 and 680 feet straight ahead, and about 60 to 80 feet to his right and left. A lighting engineer testified that a streetlight fixture at the corner of De Angelis and Joe Orr was installed 25 feet above the ground and it would cast sufficient light to permit a person’s silhouette to be seen from a distance in excess of 1,000 feet and would have a primary concentration of light covered in a circle of 6214 feet in diameter. This light was functioning at the time of the accident.

In addition to the foregoing streetlight, it was established that the two floodlights on the Ranch House Restaurant were lighted and projected light onto the parking lot and driveways leading to Joe Orr Road.

Plaintiff also presented a nearby resident and the ambulance driver who removed plaintiff to the hospital, who also testified that the lighting conditions at the scene were good. Defendant presented the testimony of a service station operator whose place of business is at the intersection of Joe Orr Road and Dixie Highway, and that of a nearby resident, who testified that the scene was dark and the lamppost made a circle of light which did not light up the north side of Joe Orr Road “too good.” The police officer, Konley, who investigated the accident, also testified in cross-examination that the lighting conditions were poor; that there were streetlights, but it was very poorly lit up.

Plaintiff sustained a laceration over the left eye and forehead and a cut on the back of the tongue. These injuries were sutured. There was also a laceration of the left leg below the knee and multiple contusions and abrasions of both legs. Plaintiff developed “foot drop” and the diagnosis was a tear of the lateral-collateral ligament of the right knee and peroneal nerve. Surgery was performed on the knee and at the time of trial, plaintiff was suffering from an instability of this knee.

A radiology specialist examined plaintiff’s X rays, recited the pathology they disclosed and also expressed an opinion as to the manner in which plaintiff sustained his injuries. This witness testified that the sequence of events would indicate that the trauma that arose to those two extremities occurred from the left side and slightly to the front. That the left leg was hit from the left side and started to collapse, and then was driven against the inside of the right leg, which then collapsed.

OPINION

Defendant contends that there was a fair trial and that the verdict was not against the manifest weight of the evidence.* Plaintiff contends that the trial court did not abuse its discretion in granting a new trial because of intervening prejudicial errors and that the verdict for defendant was against the manifest weight of the evidence and also contends that the court erred in not granting plaintiff’s motion for a judgment notwithstanding the verdict on the issue of liability.

The following are presented as matters that deprived plaintiff of a fair trial:

1. Witnesses presented who were not listed in Answer to Interrogatories,
2. Defendant’s wife weeping in the presence of the jury,
3. Prejudicial instruction,
4. Misleading argument,
5. Improper introduction of a police report,
6. Improper impeachment,
7. Improperly arguing the failure of Craig Benjamin to testify.

We first address ourselves to the purported error in permitting witnesses to testify on defendant’s behalf whose names were not furnished in Answers to Interrogatories. The witnesses were the gas station attendant, the former owner of the Ranch House Restaurant and a resident in the vicinity of the accident. These witnesses were discovered shortly before trial and more than 3 years after the furnishing of the Answers to Interrogatories and were in the nature of rebuttal witnesses regarding the lighting conditions at the scene. We find no error in permitting them to testify.

Plaintiff argues that defendant’s wife adopted a pathetic attitude and was crying during closing argument. However, plaintiff failed to object, call this to the court’s attention or to memorialize this episode in the record until the motion for a new trial. We note that the trial court, during the argument on the motion for a new trial, expressed a vague recollection of the incident, but related that it was not a determinative factor, nor did the court place any particular weight on this point in making a resolution regarding the granting of the new trial.

The instruction complained of is a recitation of section 78 of the Uniform Act Regulating Traffic on Highways, Ill Rev Stats, c 95½, § 175 (1967) on the subject of pedestrians walking on highways. It was given in the manner prescribed in IPI No. 60.01. We find no error in the giving of this instruction. Plaintiff alludes to Moore v. Young, 317 Ill App 474, 46 NE2d 852 (1943) in support of his argument, but in that case the mere abstract statement of the law was expressed without the additional language found in IPI No. 60.01, defining to the jury the effect of a violation of the statute and advising the jury in effect that a statutory violation is not negligence per se, but must be considered with all other facts and circumstances in evidence in determining negligence and contributory negligence.

Plaintiff complains that the jury was misled by the defense argument regarding the issues and specifically alludes to the following excerpt from the argument:

“Isn’t the issue in this case, simply, was the plaintiff on the road or was the plaintiff on the shoulder of the road at the time this accident occurred? Isn’t that the issue? What else can be the issue in this case?”

Plaintiff argues that the foregoing argument was not a simplification of the evidence, but a plain distortion of the legal standards and duties of a driver toward a pedestrian and prejudiced the jury against plaintiff.

Plaintiff did not object at the time this argument was made. In Lindroth v. Walgreen Co., 407 Ill 121, 136, 94 NE2d 847, the court said:

“No objection was made at the time the argument was made, nor was the court requested to take any action regarding the remarks until after the verdict. This question is not open for consideration in this court in such case.”

Regardless, we do not find this argument to be error. Defendant also argued that if the jury believed plaintiff was on the shoulder when he was struck they should return a verdict in plaintiff’s favor and also said, “. . . has the plaintiff sustained his burden on this issue ? Let’s look at the evidence.”

Plaintiff responded in closing argument and cited what he believed were 6 issues raised by the law and the evidence and told the jury: “. . . I challenge you when you go to the jury room to find anything that says that the issue is: Was the plaintiff on the road or on the shoulder?”

Plaintiff called Police Officer Donald Konley as an impeaching witness in rebuttal to defendant’s testimony. The officer related that he arrived at the scene and interrogated defendant and reduced the interview to a written statement. A copy of this statement was identified by the officer in court and after refreshing his recollection, he related the following to the jury. That defendant said: “The road was slippery at that spot and I could not stop in time. I was traveling about 15 miles an hour and that there was a high snowbank on the right as I was going west and as I crossed Dixie Highway, an oncoming car was traveling east approaching me and I was concentrating on this vehicle and the snowbank on the right. When I first seen the pedestrian was when he was in the middle of my lane crossing to the north side of the street. I just left Dixie Highway which has a stoplight.”

Defendant had testified that the road was dry and he did not skid and denied telling a police officer that he slipped on any icy spot, that he did not look to his right, but to the left at the eastbound vehicle and that plaintiff was running across Joe Orr Road from south to north.

Plaintiff argues that the police officer’s testimony was specifically limited to prior inconsistent statements by defendant and defendant engaged in prejudicial cross-examination of the officer, over plaintiff’s objection, in having the officer relate the remainder of the statement wherein defendant related that he stopped as soon as he could, offered to take plaintiff to the hospital and went with the police to the police station, that these statements were self-serving and evoked sympathy for defendant.

It is well established that when one party brings out a portion of a conversation, the other party may cross-examine on all of the conversation, but the scope is largely within the discretion of the trial court. Johnson v. Cunningham, 104 Ill App2d 406, 244 NE2d 205 and Dispenza v. Picha, 98 Ill App2d 110, 113, 240 NE2d 325.

Plaintiff contends that the cross-examination permitted the introduction of defendant’s self-serving statement that he “stopped as soon as he could.” In Dispenza, supra, the court in discussing the identical allegation of error said at page 113:

“When the deputy answered the question in the affirmative and admitted that the defendant at the scene had said the plaintiff’s car had pulled in front of him, despite the self-serving nature of the defendant’s statements, they were admissible as part of the transaction inquired into by the plaintiff.”

Defendant’s recitation in the case at bar that he went with the police to the police station following the accident could very well have redounded to his detriment, strongly suggesting that he had been arrested or served with citations charging violations of traffic laws. As to the statement that he offered to take plaintiff to the hospital, we do not find this to be of such magnitude as to amount to error.

Plaintiff’s photographs of the scene were admitted into evidence. These photographs were taken approximately three years after the occurrence and depicted the scene at night. There was a dispute and conflict among witnesses as to whether these photographs truly portrayed the lighting conditions and visibility as it existed on the evening of the accident.

Defendant called a professional photographer, whose qualifications were apparently conceded, and he in substance related that photographs that are taken at a scene at night are secured by using a time exposure. A “time exposure” is allowing enough light to penetrate through the camera, to register on the film over a given period of time. The person taking the photograph has control over how much or how little light appears in the final print. This can be controlled in several ways, by exposure, by the type of film, by the print and printing exposure and the type of paper used in printing. The witness testified that he could not discern by looking at the photographs in evidence if any of the foregoing techniques were utilized in the creation of these exhibits, without having been present at the time the photographs were taken to observe the scene with his naked eye in order to tell whether there was more or less light in the photographs than there should have been.

At the post trial motion hearing the trial court said:

“I also felt about the photographer, the photographer’s statement, as I remember, was general and did not impeach the photographs the plaintiff had.”

Plaintiff contends that defendant laid a basis for impeachment and failed to “follow up” and cites Schoolfield v. Witkowski, 54 Ill App2d 111, 203 NE2d 460, and related cases for the proposition that such procedure and conduct is prejudicial and unfair.

However, defendant’s expert witness was adducing substantive expert opinion evidence and not merely a basis for impeaching evidence. True, it was offered to affect the credibility of the photographs, as was the testimony of witnesses who testified that the photographs were not an accurate portrayal of what they purported to portray regarding lighting conditions and illumination of the scene. But, to be admissible it was not necessary that this witness, or another, testify that the pictures were not accurate photographically.

We find no error in the admission of this testimony.

Plaintiff contends that it was improper for defendant to comment upon the absence of Craig Benjamin as a witness.

Plaintiff’s answers to defendant’s interrogatories advised that Benjamin would be a witness. Plaintiff did not call upon Benjamin to testify, but on plaintiff’s direct examination he was asked, after plaintiff’s testimony revealed that Benjamin was with him at the time of the accident, the following:

Plaintiff’s counsel: “Incidentally, Craig still is living in Chicago Heights, or is he somewhere else?”
Plaintiff responded: “His parents moved to Ohio, I believe.”

It is obvious that plaintiff and his counsel sought to suggest to the jury that Benjamin’s absence from the trial and unavailability were attributable to his change of residence.

The colloquy that gives rise to the contention under this point occurred during defendant’s argument when the following transpired:

Defendant’s counsel: “I think, really, that in this case, it would have been an awfully lot more helpful if the plaintiff would have given us Craig Benjamin and his testimony — .”
Plaintiff’s counsel: “Just a moment.”
Defendant’s counsel “ — other than a lot of experts.”
Plaintiff’s counsel: “This is objected to. You had an opportunity to take his deposition and you had.”
Defendant’s counsel: “Sir, you know very well that I didn’t know Craig Benjamin was leaving for California and you did.”
Plaintiff’s counsel: “You could have taken his evidence deposition when you took his Discovery Deposition.”
The Court: “Don’t get into an argument. I will sustain the objection.”
Plaintiff’s counsel: “Thank you.”

Defense counsel continued his argument with “Nobody told us why Craig Benjamin was not hit. „ .

Plaintiff and Benjamin were friends and this suggests a likelihood that he would be biased against defendant within the meaning of United States v. Beekman, 155 F2d 580. Plaintiff failed to explain or offer any reasonable excuse for his failure to call him as a witness, except to testify that Craig Benjamin’s parents moved to Ohio and thus generating a suggestion that perhaps he accompanied them in a change of residence.

• In Stone v. Warehouse & Terminal Cartage Co., 6 Ill App2d 229, 127 NE2d 260, at page 233, the court quoted from McCormick on Evidence, § 249 as follows:

“When it would be natural under the circumstances for a party to call a particular witness . . = Ms adversary may use this failure as the basis for invoking an adverse inference. . . .
“Most of the controversy arises in respect to the failure to call a witness. It is generally agreed that when a potential witness is available, and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference arises that it would have been unfavorable.
“It is often said that if the witness is ‘equally accessible’ to both parties, no inference springs from the failure of either to call him. This can hardly be accurate, as the inference is frequently allowed when the witness could easily be called or subpenaed by either party. What is probably meant is that when so far as appears, the witness would be as likely to be favorable to one party as the other, there will be no inference. But even here, it seems that equality of favor is nearly always debatable, and that though the judge thinks the witness would be as likely to favor one party as the other, he should permit either party to argue the inference against the adversary. At least, it would appear in this supposed case of ‘equal favor’, if the witness’s knowledge is directed toward a particular issue, that then the argument should be available against the party who has the burden of persuasion on that issue.”

We hold that there was no serious prejudice in defendant’s commenting upon the failure of plaintiff to produce Craig Benjamin, particularly in light of plaintiff’s prior attempted explanation of his absence. In any event, such prejudice as there might have been does not require reversal in this case. See Mitchell v. Four-States Machinery Co., 74 Ill App2d 59, 82, 220 NE2d 109.

The standard to be applied in reviewing the trial court’s judgment is whether the verdict was contrary to the preponderance of the evidence rather than whether the verdict was contrary to the manifest weight of the evidence. The manifest weight of the evidence standard prevails in a court of review when a jury’s verdict is approved by the trial judge, not when it has met with his disapproval. Skiba v. Ruby, 113 Ill App2d 170, 251 NE2d 771.

In passing on a motion for a new trial the trial court has a greater latitude in passing on questions of fact than on questions of law, and we will not reverse its ruling on a question of fact unless a clear abuse of discretion is shown. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717. However, this discretion is not unlimited and must be reasonably exercised, and the trial court cannot interfere with the jury’s verdict unless it can say that it is contrary to the preponderanee or weight of the evidence, though the court might have decided differently. Jonkman v. Singletary, 10 Ill App2d 335, 134 NE2d 671. In Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212, at page 436:

“The fact that contrary inferences would be equally supported by the evidence is not sufficient to show unreasonableness of the verdict. It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses and draw the ultimate conclusion as to the facts. Its conclusion, whether relating to negligence, causation, or any other factual matter should not be set aside merely because different conclusions could be drawn or because judges feel that other results are more reasonable.”

Plaintiff’s testimony revealed that he was walking on the shoulder of the road. He testified that he did not see the lights of defendant’s vehicle as it approached, but that as he came to the Ranch House driveway he was struck. Defendant testified that his headlights were functioning and projected light 20 to 40 car lengths or 340 to 680 feet ahead of his vehicle, and he observed plaintiff running north to south across the westbound lane approximately 20 to 25 feet ahead of defendant’s vehicle. Defendant applied his brakes, but struck plaintiff with the right front of the vehicle. Defendant’s wife testified, as did defendant, that just before the impact, an eastbound vehicle was approaching, and the wife testified that she was looking straight ahead and observed a figure in front of the approaching eastbound vehicle, another figure in front of defendant’s vehicle and a third figure on the shoulder of the road. Her testimony established that two figures were on the roadway and the third on the shoulder, and the figure she saw in front of her husband’s vehicle was plaintiff. The jury could infer that the two or three persons Frank Opsahl observed “running or trotting” west on the north side of the road were plaintiff and his friends. In view of the severe weather, the jury could also reasonably believe that these young men were trotting or running and not walking along Joe Orr Road.

Plaintiff contends that the record reflects that the scene was well lit and defendant’s headlights were more than adequate to furnish sufficient illumination of the road for defendant to have seen plaintiff. The same contention is applicable to plaintiff in regard to observing defendant’s vehicle.

Defendant, his wife and Phillip Piazza, plaintiff’s witness, all testified that defendant’s vehicle was always on the pavement of the westbound lane.

The jury was confronted with conflicting evidence whether plaintiff was walking on the road or on the shoulder of the road, and of necessity defendant would have had to drive off the road to have struck plaintiff. The jury accepted the version that plaintiff was on the pavement when defendant’s vehicle came upon him. The jury received an instruction (IPI No. 70.03) pertaining to a pedestrian’s duty when crossing a roadway at any point other than within a marked crosswalk. It stated that under that circumstance the pedestrian “shall yield the right-of-way to all vehicles upon the roadway.” IPI No. 60.01 was also given, delineating the 'duties of a motorist toward pedestrians crossing a roadway, under the pertinent statute.

There was no evidence of excess speed, but plaintiff relies primarily upon the alleged failure of defendant to keep a proper lookout for pedestrians under lighting conditions that were more than adequate to have afforded defendant ample illumination to have seen plaintiff and avoided striking him. Plaintiff presented a radiology specialist who testified that in his opinion plaintiff was initially struck on the left leg, slightly to the front, which caused the limb to collapse and then be driven against the inside of the right leg which, in turn, collapsed. The police officer testified that defendant told him that plaintiff was crossing the road and that defendant just before the impact was looking to his left and right.

Dailey v. Hill, 99 Ill App2d 474, 241 NE2d 683, at page 479, this court said:

“Defendant was entitled to have these questions of fact decided by the jury, and it is irrelevant that the judge might have decided the case differently, based on his own evaluation of the testimony. Determination of the weight to be accorded conflicting testimony, the drawing of inferences from the evidence, and resolving issues of fact such as negligence are preeminently matters for the jury and not for the judge. In the proper exercise of his discretion a judge may not set aside a verdict and grant a new trial unless it is clear that the verdict resulted from passion or prejudice or is wholly unwarranted by the evidence.”

Litigation always presents plaintiff’s version and defendant’s version and the jury is burdened with the task of discerning what actually transpired. In the case at bar the jury could find that plaintiff was on the road and failed to exercise due care for his own safety in failing to see the lights of defendant’s car moving toward him.

We find that the verdict is supported by the preponderance of the evidence and that the trial court erred in granting a new trial. We also find that the court properly denied plaintiff’s motion for judgment notwithstanding the verdict on the issue of liability. This cause is reversed and remanded to the Circuit Court with directions to enter judgment on the verdict.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur.

       Although both parties argue “manifest weight” of the evidence, the proper standard in the granting of a new trial is whether the evidence is contrary to the “preponderance of the evidence.” See our comments in this opinion, infra.


author: MR. JUSTICE ENGLISH

text:
    Alan Blum, Plaintiff-Appellant, v. City of Chicago, James Conlisk, Superintendent of Police, Chicago Police Department, Cornelius Deasy, Russell Pfeiffer, Defendants-Appellees.
    Gen. No. 53,048.
    First District, Fourth Division.
    June 10, 1970.

      Caplan, Turner & Golding, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellees.

       See Callaghan's Illinois Digest, same topic and. section number.

       The list includes two revolvers, one Luger, three rifles, one shotgun, one pocket-size phone book, one pocket notebook, a transistor radio, a roll of film with mailer, and personal photographs.

   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff has appealed from a decision of the trial court that denied plaintiff’s complaint for the recovery of certain goods and for damages for their detention. Plaintiff’s theory on this appeal is that his complaint fully complied with the Replevin Act, and that he was therefore entitled to judgment. Ill Rev Stats 1967, c 119.

The verified complaint states that defendants detained goods and chattels of plaintiff valued at $1,683. The goods are described in detail. Plaintiff’s pleading also claimed return of the goods and chattels or their value and $1,000 damages for their detention. The complaint contained no further allegations.

While plaintiff contends that the evidence established his case, defendants argue that it failed in several respects and that plaintiff failed to state a cause of action in his complaint since it lacked allegations which were necessary to permit recovery under the express provisions of the statute. Section 4 of the Act requires that:

An action in replevin shall he commenced by the filing of a verified complaint which describes the property to be replevied and states that the plaintiff in such action is the owner of the property so described, or that he is then lawfully entitled to the possession thereof, and that the property is wrongfully detained by the defendant, and that the same has not been taken for any tax, assessment, or fine levied by virtue of any law of this State, against the property of such plaintiff, or against him individually, nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution or attachment, nor held by virtue of any writ of replevin against such plaintiff. Ill Rev Stats 1967, c 119, § 4.

A comparison of the elements of replevin required to be alleged by statute and the elements which were alleged in the instant complaint demonstrates that plaintiff’s complaint did not meet the statutory requirements. Plaintiff failed adequately to assert that he was the owner of the goods, that he was lawfully entitled to their possession, or that the property was being “wrongfully” detained. The complaint also failed to allege that the property had “not been taken for any tax, assessment, or fine,” or “seized under any execution,” or “held by virtue of any writ,” etc.

We find that these omissions in the pleading (on which there was also no evidence introduced) cannot be remedied by liberal construction, for the complaint as it stands does not state a valid cause of action in replevin. See Fanning v. LeMay, 38 Ill2d 209, 230 NE2d 182. Replevin is a statutory proceeding and must be strictly followed. O’Toole v. Klimek Boat and Engine Works, 24 Ill App2d 111, 114, 164 NE2d 253. Since the Replevin Act sets forth specifically what allegations shall constitute a cause of action, the ordinary rules of pleading must yield to the explicit requirements of the statute.

This is not merely a case in which a good cause of action is defectively stated in a way which would prevent the instant issue from being raised for the first time on appeal, as it was. This is, rather, the kind of case in which no cause of action in replevin was stated and thus presents a question which is always open to consideration in a court of review. Wilson v. Board of Education of School Dist. No. 126, 394 Ill 197, 201, 68 NE2d 257. Furthermore, it is open to an appellee to argue for affirmance of the trial court’s judgment on any ground supported by the record. Miller v. Chicago Transit Authority, 78 Ill App2d 375, 381, 223 NE2d 323.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fernando Rodrigquez, Otherwise Called Fernando Velez Rodriguez, Otherwise Called Francisco Caldero, Defendant-Appellant.
    Gen. No. 53,103.
    First District, Fourth Division.
    June 10, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Burglary (3 indictments). Ill Rev Stats 1967, c 38, § 19-1.

Theft (2 indictments). Ill Rev Stats 1967, c 38, § 16-1(a).

Unlawful use of weapons. Ill Rev Stats 1967, c 38, § 24-1(a)(4).

TRIAL COURT PROCEEDINGS

On November 17, 1967, defendant was arraigned and entered a plea of not guilty as to each indictment. At that time and throughout the rest of the proceedings in this case, he was represented by privately retained counsel. On December 13, 1967, defendant withdrew the not guilty pleas and entered a plea of guilty to each indictment. After hearing testimony stipulated to by the parties, the trial court sentenced defendant to a term of 5 to 8 years in the penitentiary on each of the 6 indictments, the sentences to run concurrently. On January 15, 1968, defendant filed his Notice of Appeal, and the Public Defender was appointed as his counsel.

PROCEEDINGS IN THIS COURT

The Public Defender now requests leave to withdraw as defendant’s attorney and has filed a brief in support thereof in accordance with the decision in Anders v. California, 386 US 738, and the procedure established by this court by way of its implementation. Defendant was furnished with copies of the petition and brief and was notified of his right to raise any additional points he might desire in support of his appeal.

The brief submitted by the Public Defender sets forth only one point which might arguably support the appeal, that being whether the court fully admonished the defendant as to the significance and consequences of his change of plea from not guilty to guilty. The pertinent colloquy that took place between defendant, his counsel, and the court indicates that the trial judge scrupulously informed the defendant of the consequences of the change of plea. Defendant replied affirmatively to questions put by the judge, from which it was clearly determined that defendant’s attorney had correctly stated his client’s intention to plead guilty, that defendant’s decision had been reached voluntarily without threat or inducement, and that defendant understood that entry of guilty pleas would result in an automatic waiver of a jury trial. The court advised defendant of the minimum and maximum sentences provided by law for the offenses charged and explained that the terms could be made to run either consecutively or concurrently. Defendant was also asked whether he was satisfied with the legal representation he had received from his privately retained attorney, and the response was, “I am satisfied.” Defendant also affirmatively acknowledged that he understood his guilty pleas were an admission of guilt.

The explanation and interrogation by the court were more than adequate to inform defendant of the nature of the charges against him, the consequences of a guilty plea, and the penalties which might be imposed upon its acceptance. The procedure which was followed thus met all the requirements set forth in the pertinent statute and Supreme Court Rule. Ill Rev Stats 1967, c 38, § 115-2; c 110A, § 401 (b). The record clearly shows that defendant’s guilty pleas were knowingly and voluntarily made. People v. Williams, 44 Ill2d 334, 255 NE2d 385; People v. Reynolds, 123 Ill App2d 298, 260 NE2d 33.

In response to this court’s notice to defendant, he has presented a letter in which he claims that he was “fooled” by his lawyer into pleading guilty to a crime he had not committed, while admitting his guilt as to the rest of the charges. This allegation finds no support in the record, and, in any event, is the type of issue which was waived by a proper plea of guilty. People v. Dennis, 34 Ill2d 219, 221, 215 NE2d 218. Further, even if we were to consider this as an assertion that defendant was not provided with adequate representation by counsel, it would likewise be without merit. In the absence of a showing of extraordinary incompetence, which is completely lacking on this record, defendant will not be heard to make this contention with regard to privately retained counsel. People v. Morris, 3 Ill2d 437, 444, 121 NE2d 810; People v. Underhill, 38 Ill2d 245, 254, 230 NE2d 837; People v. Carter, 92 Ill App2d 120, 235 NE2d 382.

Defendant also raises the point that his sentences were excessive “for a guy that never cause [sic] problem to the court when he is guilty.” Considering the nature and the number of offenses involved, we can find no reasonable basis for reducing the sentences which, as has been mentioned, are to be served concurrently.

In addition to studying the points raised by defendant and the Public Defender, we have made “a full examination of all the proceedings” in accordance with the dictate of Anders. We find that the appeal is “wholly frivolous.” Defendant’s attorney is therefore given leave to withdraw, and the judgments of conviction are affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


text:
    Olaf Carlson, d/b/a Maple Realtors, Plaintiff, v. Jean Collander, Defendant and Counterdefendant-Appellant, and Don Derrico, Defendant and Counterplaintiff-Appellee.
    Gen. No. 53,425.
    First District, Fourth Division.
    June 10, 1970.
    Rehearing denied July 28, 1970.

      Gatenbey, Spuller, Law & Johnson, of Chicago (Fred H. Law, Jr., Philip J. R. Equi, and William F. Rickelman, of counsel), for defendant and counterdefendant-appellant.
    Albert Koretzky, of Chicago, for defendant and counterplaintiff-appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court as modified on denial of counterdefendant’s petition for rehearing.

Counterdefendant appeals from a judgment against her and in favor of counterplaintiff for damages of $5,000 arising from counterdefendant’s failure and refusal to complete the sale of certain real estate pursuant to an option contract. The sole issue presented for our review is whether counterplaintiff is legally entitled to recover the entire amount awarded as damages.

The original complaint in this action was filed by plaintiff, Olaf Carlson, d/b/a Maple Realtors (who is not a party to this appeal) seeking a commission for having negotiated a real estate transaction between counter-plaintiff and counterdefendant. Counterdefendant (as defendant in the original action) then filed a motion to dismiss as to her, which was granted. Counterplaintiff (as the other defendant in the original action) filed an answer to plaintiff’s complaint in which he denied entering into any oral agreement with plaintiff to negotiate the sale of the property and pay plaintiff a commission. He admitted entering into an option contract with counter-defendant to purchase the subject real estate and notifying counterdefendant of his intention to exercise the option.

Counterplaintiff also filed a counterclaim against counterdefendant seeking damages in the sum of $5,000, plus interest and costs, for her failure and refusal to enter into a contract of sale of the subject property on counterplaintiff’s exercise of his option. Counterdefendant’s answer to the counterclaim admitted the existence of the option contract and receipt of counterplaintiff’s notice exercising the option, but denied that counter-plaintiff was entitled to any damages.

At the close of the testimony, the court entered three judgments: (1) for plaintiff against counterplaintiff with damages in the amount of $2,500, (2) for counter-defendant against plaintiff for costs, and (3) for counter-plaintiff against counterdefendant with damages in the amount of $5,000. On appeal, counterdefendant challenges only the amount of damages awarded in counter-plaintiff’s favor.

The parties agree that the rule concerning the measure of damages to be awarded for the instant breach of contract is properly set out in 15 ILP, Damages (1968), § 33, where it is stated at pages 379-80:

The damages recoverable for a breach of contract are such as may fairly and reasonably be considered as naturally arising from the breach thereof, in the light of the facts known or which should have been known, or such as may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract as a probable result of a breach thereof; it need not be shown that the parties considered the consequences of a breach at the time the contract was made, but the consequences must be such as the parties may fairly be supposed to have considered, or at least would have considered had they been informed of all the facts.

There is also a concurrence of opinion as to the proof offered at trial of several elements of foreseeable damage. These include proof of legal fees and expenses incurred, the cost of establishing a land trust, and the value of counterplaintiff’s own efforts in researching the instant venture. Depending on the per hour variable (set at between $10 and $15) used in computing the worth of counterplaintiff’s time, the damages awarded for these enumerated expenses, based on eounterplaintiff’s testimony, could range from $2,265 to $2,775. Counterdefendant’s sole objection to this aspect of the award is that the attorney’s fee, estimated at $1,125, when based upon the minimum fee schedule adopted by the Board of Governors of the Illinois State Bar Association, should be revised downward to reflect the failure of the parties to consummate the instant transaction. Even if we were to make such an adjustment, we believe that the evidence, with a fair degree of probability, nevertheless establishes $2,500 as a proper assessment of damages for these items. See Barnett v. Caldwell Furniture Co., 277 Ill 286, 289, 115 NE 389.

The gravamen of counterdefendant’s complaint on this appeal concerns the remaining $2,500 assessed as damages, representing the broker’s commission adjudged by the court to be owed plaintiff by counterplaintiff. Counterdefendant’s initial argument is that since counterplaintiff did not include the broker’s commission as a specific item of damages in his countercomplaint, the matter could not be considered as such by the trial court, nor can the theory be asserted upon review. Consoer, Townsend and Associates v. Addis, 37 Ill App2d 105, 185 NE2d 97. We reject this contention, based upon the substance of the counterclaim. There, it alleged that counterdefendant “failed and refused to enter into the contract” and “by reason thereof and of the necessary expenses incurred” he should be reimbursed with damages in the amount of $5,000. This general allegation of damages serves as a sufficient basis for allowance to counterplaintif of all damages accruing to him as a result of counterdefendant’s failure to abide by her contract. This includes counterplaintiff’s adjudicated liability to plaintiff in the amount of $2,500 as damages arising from counterplaintiff’s failure to pay plaintiff a brokerage commission. Counterplaintiff filed a notice of appeal from that judgment but did not pursue that appeal in this court.

Counterdefendant urges for the first time in her reply brief that because plaintiff’s right to a broker’s commission was (by the terms of the agreement between plaintiff and counterplaintiff) dependent upon completion of the transaction, plaintiff had not earned his commission in this instance. Since counterdefendant has appealed solely from the judgment against her for damages to counterplaintiff, this contention would appear to be the raising of a collateral attack upon a judgment which has become final and binding upon this court. In any event, however, we are governed by the principle that a reviewing court will not consider an issue raised for the first time in a reply brief. Ill Rev Stats 1967, c 11A, § 341(g); Haffa v. Haffa, 115 Ill App2d 467, 476, 253 NE2d 507; Nielsen v. Duyvjonck, 94 Ill App2d 224, 230, 236 NE2d 743. The essence of this contention, however, is that of a collateral attack upon a judgment from which no appeal has been taken and which has therefore become final and binding upon this court.

Counterdefendant further asserts that her damages cannot be affected by a contract entered into between counterplaintiff and plaintiff. This point, too, is without merit in the light of the transcript before us. Plaintiff testified that counterdefendant told him that “his commission would have to come from the purchaser.” Similarly, counterdefendant testified that plaintiff told her “he thought he had a client who would take care of his commission.” Thus, counterdefendant entered into the option contract anticipating that counterplaintiff would incur an obligation to pay a broker’s commission. Since the court then entered judgment in favor of plaintiff for such a commission, we conclude that the court properly found that counterdefendant’s default under her contract rendered her liable to counterplaintiff for that amount as an element of damages.

Accordingly, the judgment of the Circuit Court in favor of counterplaintiff and against counterdefendant is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Vernon J. Picard, Defendant-Appellee. In the Matter of a Search Warrant Upon the Premises Located at 1644 West 79th Street, 2nd Floor, Apartment “K” in the City of Chicago, County of Cook, State of Illinois.
    Gen. Nos. 53,500, 53,501. (Consolidated.)
    First District, Fourth Division.
    June 10, 1970.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Thomas A. Hett, Assistant State’s Attorney, of counsel), for appellant.
    Blacher, Buckun & Nellis, of Chicago (William J. Nellis, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant was charged with gambling in that he used or kept a book, or instrument, or apparatus, for the purpose of recording and registering bets and wagers. Ill Rev Stats 1967, c 38, §28-1 (a) (5). The State has appealed from an order of the trial court granting defendant’s motion to quash a search warrant and suppress as evidence all objects seized in the execution of the warrant.

The complaint for a search warrant was submitted to a magistrate by a police officer, Donald Kenney, and included the following allegations of fact: (1) The information was received from a reliable informant whom the officer had known for approximately four weeks. (2) The informant had furnished true, exact and accurate information on previous occasions which had resulted in three arrests and one conviction and recovery of records of bets in all instances. (3) On March 26, 1968, the informant supplied a telephone number which he said was the number he called to place bets. (4) The number was checked through the telephone company, and the subscriber was found to be Joseph L. Gorman of 1644 West 79th Street, 2nd Floor, Apartment K, Chicago. (5) The officer dialed the number and handed the phone to the informant, who engaged in a conversation wherein he identified himself and placed a wager on a horse race. The informant then said, “No, that’s all for now,” and hung up. The informant explained to the officer that the phone rang once and was answered by an unknown person who accepted the wager. The person asked if there would be anything else. (6) Surveillance of the location revealed it to be a three-story building with stores on the ground floor.

Upon this complaint, a warrant was issued on March 26, 1968, and execution followed the same day by confiscation of records of horse bets and scratch sheets. The trial judge sustained defendant’s motions to quash the warrant and suppress the seized evidence apparently because the informant had not been identified in the affidavit for issuance of the warrant.

The State contends that probable cause did exist for the issuance of the warrant, notwithstanding the fact that the informant was not identified.

The recent case of People v. Mitchell, 45 Ill2d 140, 258 NE2d 345, controls our decision in this case. There, the court found that probable cause existed even though the informant was not identified and the affidavit for the issuance of the warrant was based almost entirely on hearsay. The factual similarities between Mitchell and the case at bar are striking, the contents of the affidavits being identical in all essential respects. Also, in the instant case affiant’s surveillance of the suspect dwelling, insofar as it was disclosed to be an apartment building, tended to corroborate the information contained in the affidavit. See People v. Johnson, 84 Ill App2d 143, 228 NE2d 457.

Accordingly, we hold that the search warrant was properly issued on probable cause. The order of the Circuit Court sustaining defendant’s motion to quash the warrant and suppress the evidence seized, is reversed.

Reversed.

DRUCKER and LEIGHTON, JJ., concur.