author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leon Smith, Defendant-Appellant.
    Gen. No. 51,772.
    First District, Third Division.
    January 9, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Leon Smith was found guilty of armed robbery by a jury and was sentenced to a term of four to eight years in the penitentiary.

On October 16, 1964, at about 5:00 p. m., Harris Mosely and his wife were tending a hat cleaning and blocking store which they owned in Chicago. Both testified that at that time a young man whom they knew as Eli Mohammed entered the store and asked to see some hats. Mrs. Mosely waited on him while Mosely continued working at his table in the area behind the front counter. As Mrs. Mosely was taking care of Mohammed an older man, whom the Moselys later identified as the defendant, entered the store and stood at the counter. At the rear of the store was a red box in which money was kept and the man kept glancing in the direction of the box while Mrs. Mosely talked with Mohammed. After a moment or two he pulled out a gun and said, “Lady, this is a stick-up.” When he and Mohammed went behind the counter the Moselys ran out the back door to a neighboring store and called the police. When they returned, the red box, which contained $500 was missing.

The defendant’s contention that he was not proven guilty beyond a reasonable doubt is untenable. He was positively identified at the time of his apprehension by Mrs. Mosely, and at his trial by her and her husband.

Although the evidence was sufficient to sustain the guilty verdict, trial errors require remandment for a new trial. The defendant testified that on October 16, 1964, he was ill at home, and that two nurses, his girl friend and other friends visited him. No witnesses supporting the alibi were produced.

During the State’s first closing argument, the prosecutor commented on the absence of the witnesses and stated that the power of subpoena was available to the defense. He then said:

“They had all the opportunity ... to bring these people in with subpoenas. . . . They are not here for one very simple reason, it just didn’t happen that way, and they are not going to get up on that stand and perjure themselves for Mr. Smith or anyone else.”

In the State’s second closing argument another prosecutor read to the jury a transcript of the defendant’s testimony concerning his alibi witnesses. He followed this up by saying:

“[Y]ou heard from this transcript that the defendant testified that these people were very good friends of his, lived in the same building ... all had ample jobs. . . . Where are these people who have ample jobs ? Why weren’t they subpoenaed from their place of employment? Where are the nurses? Where are they? . . . Why don’t they come? They don’t want to lie for the defendant? Or is it that the defendant’s testimony is not true? What do you think about it?”

It was error to read from the transcript (People v. Willy, 30 Ill 307, 133 NE 859 (1921); Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476 (1963)) and it was error for both prosecutors to make the remarks they did about the absent witnesses. Seven subpoenas had been issued at the defendant’s request; six were returned unserved and the one witness who had been served did not appear. The record indicates that the prosecutors knew this, and their statements about the defendant’s not using the power of subpoena were unjustifiable. Also, their remarks that the witnesses did not come to court because they did not want to commit perjury were unfair. This implied either that the witnesses had been asked to testify and had refused or that they had not been asked because the defendant knew that their testimony would contradict his. Both implications carried a covert suggestion that the defendant was guilty of the robbery because the witnesses did not testify in his behalf. The general rule is that a defendant has no obligation to call witnesses and his not doing so raises no presumption of law that if called they would have testified unfavorably to him. People v. Munday, 280 Ill 32, 117 NE 286 (1917). See also People v. Smith, 74 Ill App2d 458, 221 NE2d 68 (1966).

When the defense is an alibi, this court has recognized an exception to the general rule. We have held that it is not improper for the State to comment upon the failure of a defendant to produce witnesses to support his testimony that he was in their company at the time of the alleged crime. People v. Sanford, 100 Ill App2d 101, 241 NE2d 485 (1968); People v. Gray, 52 Ill App2d 177, 201 NE2d 756 (1964). In the present case, however, the prosecutors’ remarks went far beyond mere comment and were one of the two errors which deprived the defendant of a fair trial.

The other error was the admission of hearsay evidence. During her direct examination, Mrs. Mosely said that after the robbery the police showed her some pictures. The State developed the subject further when the arresting officer testified. The officer said that he showed twelve photographs to Mrs. Mosely. The prosecutor then asked:

“Q. And out of those photographs, did she pick any?
“A. Yes, sir, she did.
“Q. Whom was that a photograph of ?
“A. She picked a photograph of Mr. Leon Smith.”

The police officer’s testimony as to what Mrs. Mosely did by way of identifying Smith was error. People v. Reeves, 360 Ill 55, 195 NE 443 (1935); People v. Wright, 65 Ill App2d 23, 212 NE2d 126 (1965). His testimony went far beyond hers and obviously was offered to strengthen the identification and to prove the truth of the matter asserted in his testimony, that is, that Mrs. Mosely picked Smith out as the person who robbed her.

The officer’s testimony about the identification made by Mrs. Mosely at the police station was also hearsay. In reference to the line-up the officer was asked:

“Q. Did Mrs. Mosely view the line-up ?
“A. Yes, sir, she did.
“Q. And out of that line-up did she pick anybody ?
“A. Yes, sir, she did.
“Q. Whom did she pick?
“A. She picked out Mr. Leon Smith.”

This testimony, however, was not harmful to the defendant for Mrs. Mosely had testified that a few days after the robbery she went to the police station and picked Smith out of a lineup of five men. She said the men had their backs to her and the police had them turn around one by one. When Smith turned she hit him on the shoulder and said, “This is the man, this is the man.” Mrs. Mosely’s testimony was uncontradicted. (Smith, himself, said she identified him at the lineup and added, “In fact, I do believe within my heart she thinks I am the one, but she is just mistaken.”) The officer’s testimony about the lineup identification did not inject new evidence into the trial; it merely repeated what had already been proven by competent and undisputed testimony. People v. Sterling, 341 Ill 112, 173 NE 139 (1930). Under these circumstances the officer’s incompetent testimony was not prejudicial.

The defendant also contends that the court unduly restricted cross-examination in reference to the arrest, identification and trial of Eli Mohammed, and erred in sentencing him peremptorily without holding a mitigation hearing. In view of our decision reversing the judgment, these errors, which are unlikely to arise at a future trial, need not be discussed.

Reversed and remanded.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Smith, Defendant-Appellant.
    Gen. No. 51,812.
    First District, Third Division.
    January 9, 1969.

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

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

In December 1965, Frank Smith pleaded guilty to a charge of armed robbery. Despite prior convictions for assault with intent to rob, petty larceny (reduced from armed robbery), criminal trespass and aggravated assault, the judge placed him on probation. A month later he was arrested and again charged with robbery.

He was indicted for the robbery, and a rule to show cause why his probation should not be revoked was entered and served upon him. The rule and the indictment were assigned to the judge who had placed him on probation.

Smith requested a trial on the indictment before there was a hearing on the rule to show cause. The judge denied his motion and ordered the probation violation hearing to proceed. At the conclusion of the hearing the judge terminated the probation and sentenced Smith to the penitentiary for a term of seven to fifteen years.

The denial of his motion and the length of the sentence imposed upon him are the defendant’s two assignments of error. There is no contention that the evidence was insufficient to prove a violation of probation, and such a contention could not be made seriously. The January 1966 robbery was witnessed by two police officers who were in an automobile at the time. The victim was hit in the face by the defendant and knocked to the ground. While he was down the defendant kicked him in the side and took about $70 from his pocket. The officers sped to the scene and one of them chased the defendant on foot and saw him throw the money away just before he was seized.

The judge did not abuse his discretion in proceeding on the probation hearing before trying the robbery case. A defendant is not entitled, as a matter of right, to have a probation revocation hearing delayed until a trial is had on a criminal offense alleged to have been committed by him during the period of probation. People v. Brooks, 67 Ill App2d 479, 214 NE2d 498 (1966); People v. Price, 24 Ill App2d 364, 164 NE2d 528 (1960); People v. Kostaken, 16 Ill App2d 395, 148 NE2d 615 (1958).

The defendant claims that his sentence is excessive and advances three reasons why it was imposed. First, he concludes that it was based upon the robbery of January 1966 rather than upon the armed robbery to which he pleaded guilty in December 1965. Invoking punishment for violation of probation does not undertake to punish for offenses committed subsequent to the granting of probation; rather it imposes sentence for the offense for which probation was originally granted. People v. Morgan, 55 Ill App2d 157, 204 NE2d 314 (1965); People v. Koning, 18 Ill App2d 119, 151 NE2d 103 (1958).

The defendant’s conclusion is predicated solely on the disparity between the seven to fifteen-year term and the original sentence of three years’ probation. This disparity does not indicate that the judge punished the defendant for the new offense. Ill Rev Stats, 1965, c 38, par 117-3 (d) reads:

“If the court determines that a condition of probation has been violated, the court may alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.”

The sentence of seven to fifteen years was within the statutory limits prescribed for the offense for which the defendant was granted probation. A person convicted of armed robbery may be “imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.” Ill Rev Stats, 1965, c 38, par 18-2 (b). We do not know the facts of the crime to which the defendant pleaded guilty but because of his extensive criminal record the imposition of the seven to fifteen-year sentence was well within the court’s judicial discretion.

Second, the defendant argues that his punishment might have been less severe, or his probation not revoked, if he had been tried on the new offense and acquitted. This argument is an oversimplification. To convict for a criminal offense guilt must be proved beyond a reasonable doubt, but to revoke probation guilt need merely be shown by a preponderance of the evidence. People v. Carroll, 76 Ill App2d 9, 221 NE2d 528 (1966); People v. Burrell, 334 Ill App 253, 79 NE2d 88 (1948). To require a court to await the outcome of a trial on a criminal offense before proceeding on a probation hearing would in essence raise the standard of guilt to be shown before the defendant’s probation could be revoked. This is not the law and it is not in the public interest.

Third, it is suggested that the sentence was imposed because the judge became angry with the witness who testified in the defendant’s behalf. The witness was a woman with whom the defendant lived and who testified she was sometimes known as his wife. She was in a restaurant with him the night of the alleged robbery and she testified that as they left the restaurant the complainant, who smelled of alcohol, fell against her. Smith came to her aid and pushed the complainant away. She said she did not see the complainant fall, or see Smith punch him or put his hands in his pockets. She implied that this might have been done by a group of teenaged boys who were following the complainant. She said that Smith did not run and when the police arrested him she told them they should have arrested the complainant instead. They then told her she would be taken along, too, and put her in their car.

After the State finished cross-examining the witness the trial judge conducted an examination of his own and concluded by holding the witness in contempt of court for lying and by ordering that she be taken into custody. The trial then proceeded. The defendant testified in his own behalf, the defense rested and the judge pronounced his decision:

“I placed you on probation, Smith, back in December of 1965. I did it at that time against my better judgment because you have a long record.
“Are you going to lie to the court. Now you bring a prostitute in here to lie.
tt
“More than five weeks later after I put you on probation you are living with a prostitute, she is a known prostitute, she comes in here and you have her perjure herself today. She has a long line of arrests for prostitution.
“There is no hope for you. Your probation is terminated as unsatisfactory. ... I will sentence you to the Illinois State Penitentiary at Joliet, Illinois, and I will fix a minimum of 7 years and a maximum of 15 years. 7 to 15 years.
“You take an old man 63 years old, you and your prostitute, you get him out of the restaurant. It just happens these two alert police officers saw you hit the old man, knock him down, kick him and then go in his pocket, and when they retrieved the $65 that you threw away after they apprehended you. . .

The accusation that the witness committed perjury was apparently based on the fact that she contradicted the State’s witnesses and on her admission that she was not Smith’s wife after having told the arresting officers she was. The source of the judge’s information that she was a known prostitute and had a long line of arrests for prostitution is not indicated in the record. The State, unbelievably, suggests that a prosecutor must have informed the judge, outside of the record, of the witness’ past. Even more fantastic is the intimation that such conduct and the consideration of such information would be perfectly proper.

It is error for a court to allow its displeasure with a witness to influence its decision to revoke probation and impose sentence. People v. Carroll, 76 Ill App2d 9, 221 NE2d 528 (1966). In Carroll the court reduced a sentence where an express factor in the trial court’s imposition of the sentence was the untruthfulness of a defense witness. In the present case, although the judge’s cross-examination was harsh and his characterizations unfortunate, the charge that his irritation with the witness contributed to the punishment imposed on the defendant is mere conjecture.

The judge was understandably irate when he revoked probation and sentenced the defendant. But that ire was caused by the defendant himself. Despite a prior criminal record and a plea of guilty to a serious offense, the defendant was granted probation. A few weeks later he committed a robbery. The judge was upset that the trust he had placed in the defendant had been betrayed and his chagrin may have been increased by the disclosure that the defendant at the time he was granted probation was living with a woman whom the judge termed a known prostitute. There is, however, nothing to support the assertion that the judge’s displeasure with the witness affected the sentence he imposed. The judgment will be affirmed.

Affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    William J. O’Brien, Plaintiff-Appellant, v. Country Mutual Insurance Co., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 52,493.
    First District, Third Division.
    January 9, 1969.

      Judgment reversed and cause remanded with directions.
    Morgan, Halligan, Lanoff & Cook, of Chicago (John A. Cook and James T. Ryan, of counsel), for appellant.
    Kenneth L. Horky, of Chicago (Delbert T. Been, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff sues the defendant insurance company on a casualty insurance policy covering loss to plaintiff’s barn. The trial court sustained defendant’s motion to dismiss the suit on the ground that it was not filed within the 12-month limitation period set forth in the policy. Plaintiff’s motions to vacate the order of dismissal and for leave to file an amended complaint were denied and he thereupon appealed. He contends that defendant waived the limitation provision. The facts follow.

The policy was issued on November 10, 1961. It contained the following provision:

“Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of loss.”

On May 8, 1964, the roof on plaintiff’s bam was damaged in a windstorm and within 60 days plaintiff reported his loss to defendant. Defendant did not dispute the fact that it was liable for the loss, but denied that the loss was as great as plaintiff claimed. On January 3, 1967, plaintiff filed suit. Defendant made its motion to dismiss on February 14, 1967, and the court sustained the motion on March 10, 1967. Plaintiff’s motion to vacate the order of dismissal and for leave to file an amended complaint were denied.

The amended complaint tendered by plaintiff alleged the following facts: After plaintiff reported his loss to the defendant, he and defendant engaged in a course of prolonged negotiations. On May 6, 1965 (363 days after the loss) the defendant in furtherance of such negotiations sent plaintiff a letter in which it offered to settle the claim for $102.88. On July 30, 1965, defendant sent plaintiff another letter offering to settle for $141.33. Plaintiff further alleged that he was not represented by an attorney and that as a result of the prolonged negotiations he was induced to believe that reasonable hope of adjustment was in prospect and he was thereby dissuaded from filing suit. The court denied plaintiff’s motions and plaintiff thereupon took this appeal. The sole issue for our consideration is whether plaintiff’s amended complaint alleged facts which if proven established a waiver by the insurance company of the 12-month limitation provision in the policy.

The law is clear that subject to statutory regulations a party to an insurance policy may contract to limit the time within which action on the policy may be brought. Downing v. Wolverine Ins. Co., 62 Ill App2d 305, 210 NE2d 603. It is also clear however that rights under a contractual provision limiting the time within which an action may be brought may be lost by waiver on the part of the insurer. Allemania Fire Ins. Co. v. Peck, 133 Ill 220, 24 NE 538; Downing v. Wolverine Ins. Co., supra; North American Acc. Ins. Co. v. Williamson, 118 Ill App 670. Such provisions, working a forfeiture when upheld, produce harsh results. The courts therefore do not require strong proof of a waiver. Covenant Mut. Life Ass’n v. Baughman, 73 Ill App 544; North American Acc. Ins. Co. v. Williamson, supra; German Fire Ins. Co. v. Carrow, 21 Ill App 631. In Phenix Ins. Co. v. Belt R. Co., 82 Ill App 265, the court said, at 271:

“In order that such a defense may be considered waived, or the insurance company debarred from making it, though not in a strict sense estopped by acts in pais, strong proof is not required of waiver, nor is it necessary that the proof should establish facts equivalent to a technical estoppel, but only such facts as would make it unjust, inequitable or unconscionable to allow the defense to be interposed.”

When an insurance company, by holding out reasonable hope of adjustment, deters an insured from bringing suit within the time limits of the policy, such limitation is thereby waived. Allemania Fire Ins. Co. v. Peck, 133 Ill 220, 24 NE 538; Peoria, Marine & Fire Ins. Co. v. Whitehill, 25 Ill 466; Downing v. Wolverine Ins. Co., supra; Kinsey v. Thompson, 44 Ill App2d 304, 194 NE2d 565. Once the insurer waives the policy limitation provision, the limitation cannot be revived and the case will be barred only by the regular statutory limitation. Illinois Live Stock Ins. Co. v. Baker, 153 Ill 240, 38 NE 627.

In the instant case the plaintiff alleged in his complaint that the defendant made an offer of settlement two days before the 12 months expired and then made a larger offer over two months after the limitation period had expired. The plaintiff specifically alleged that because of those negotiations he was given reasonable hope of adjustment and was deterred from filing suit. These allegations if proved would establish a waiver on the part of the insurer. Downing v. Wolverine Ins. Co., 62 Ill App2d 305, 210 NE2d 603; Allemania Fire Ins. Co. v. Peck, 133 Ill 220, 24 NE 538.

The trial court erred in denying plaintiff’s motion for leave to file an amended complaint. The judgment accordingly is reversed and the cause is remanded for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Defendant in Error, v. Jeffery Junior Williams (Impleaded), Plaintiff in Error.
    Gen. No. 53,058.
    First District, Third Division.
    January 9, 1969.

      Sheffey, Jacobs & Stemm, of Chicago (Edwin J. Belz, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant appeals from a conviction of murder. The trial was by jury, and the court imposed a sentence of thirty to sixty years in the Illinois State Penitentiary. An appeal was initially taken to the Supreme Court which transferred the cause to this court because the defendant’s appeal did not present a substantial constitutional question.

The defendant, Jeffery Junior Williams and one Leonard White were charged in a two-count indictment with the murder and voluntary manslaughter of one Will Hugh Hutto.

The defendant contends on appeal that (1) the denial of his petition for a change of venue was reversible error ; (2) the denial of a sanity hearing violated due process of law; (3) the court erred in allowing the State to nolle the manslaughter count of the indictment after the jury was impanelled and evidence was presented; (4) he was wrongfully denied the right to examine various police reports and other statements which the defense desired to use for impeachment; (5) prejudice resulted from the State’s failure to offer proof of the defendant’s alleged prior inconsistent statements; and (6) the court erred in initially permitting the admission of Leonard White’s statement to the police.

The case came to trial on April 29, 1963, and after the prospective jurors had been sworn, Leonard White, the other defendant, entered a plea of guilty.

Leonard White testified on behalf of the State to the following: On the evening of March 14, 1962, at 11:00 or 12:00 p. m., he and the defendant left a tavern and walked to Chicago’s South Water Market. The defendant was carrying a shotgun which White had picked up earlier in the evening. On the way toward the market, the defendant “broke the gun down and put something in it.” When the two men reached the market, a truck driven by Will Hugh Hutto pulled up to the loading dock. As Hutto was standing on a loading dock, he was approached by the two men whereupon the defendant demanded money of the driver. The driver jumped from the dock and turned toward the men and pulled “something shiny” from his pocket, and as he did so, the shotgun held by the defendant discharged and the blast struck Hutto. The two men left and took the gun to one Johnny Mae Henderson’s apartment.

White admitted that he and the defendant went to the South Water Market earlier in the evening at which time the defendant talked to a truck driver but White had no conversation with this driver and did not know what the defendant had said to him. After talking to this driver, the pair returned to the tavern.

The deceased’s sister, Colleen Hutto Gochenour, was the State’s “life and death witness” who testified that she had seen her brother alive in February, 1961, and had identified him at the morgue on March 15,1962.

William Lonnie Greene also testified for the State that on the evening of March 14, 1962, he was sitting in his cab waiting to unload when two men knocked on the cab and offered to unload his truck. When he told them that he didn’t want to be unloaded, both men left. At a lineup and at trial, the witness identified defendant as one of the men who approached him.

The State offered the testimony of Detective John Loftus who stated that he had talked to Leonard White in custody, and, in the presence of the defendant. White related his version of the crime which was substantially similar to White’s testimony on the witness stand. The police officer stated that the defendant took him and another officer to the South Water Market whereupon the defendant related the following: On the evening in question, the defendant and White did approach a driver and asked him if he wished to be unloaded. At this point, the man jumped from the dock, ran, and then turned around and had something shiny in his hand. The defendant testified that at this time, both he and White picked up the shotgun which had been leaning against a building and in so doing the gun was fired and the driver fell to the ground. The defendant denied that he had talked to the witness, William Lonnie Greene. Loftus stated that the defendant told him that he went to the market that night “to commit a robbery.”

The defendant took the stand in his own behalf and testified in much the same way as he had related the occurrence to Officer Loftus. He did not know whether the gun was loaded and stated that it was White who carried the shotgun as they walked to the South Water Market. The defendant further testified that the gun was fired after the victim had pulled a knife and lunged toward him in an attempt to stab him. He denied talking to any truck driver on the evening in question.

Vincent Bentivenga, an Assistant State’s Attorney, testified that on March 15, 1963, he had talked to the defendant while in custody, and the defendant initially denied any participation in the crime. Later the defendant stated to Mr. Bentivenga that a man had pulled a knife on him at the South Water Market and the gun “just went off.”

The defendant first argues that the denial of his petition for a change of venue was reversible error. The petition was presented after the defendant’s motion to quash the indictment had been denied and after the jury had been impanelled. Once the court has ruled on a substantive issue such as ruling on a motion to quash, the petition for change of venue comes too late. (People v. Wilfong, 17 Ill2d 373, 162 NE2d 256; People v. Chambers, 9 Ill2d 83, 136 NE2d 812.) The case cited by the defendant, People v. McGlothen, 26 Ill2d 392, 186 NE2d 319, is distinguishable from the instant case since in the cited case the petition was filed before the trial had begun and before the trial court had ruled on any substantive issues.

The fact that the prosecution nolled the manslaughter count of the indictment after the jury had been impanelled and sworn does not constitute reversible error. In People v. Hines, 30 Ill2d 152, 195 NE2d 712, the State’s Attorney nolled a narcotics possession count after the jury had been impanelled and after evidence had been heard. The defendant was convicted of the sale and dispensing of a narcotic drug. On page 156, the Supreme Court said:

“It is contended by the defendant that he could be placed in double jeopardy by the State’s nolle pressing of count II. The jury had already been impanelled and evidence heard prior to the possession count being nolled. The claim of the possibility of double jeopardy is without merit. Defendant could not be subsequently reindicted and retried for the nolled charge.”

Another argument advanced by the defendant is that the denial of his request for a sanity hearing violated due process of law. This request was made after the court had denied a motion for change of venue following a plea of guilty by the codefendant. The trial court alluded to a dilatory purpose in making the request after these events had occurred and noted that this request was made for the first time after the case had been in his court for one year. The defense counsel’s reason for requesting the hearing was that his client was uncooperative and he doubted whether the defendant could understand the nature of the charge. The trial judge noted that the defendant had rationally discussed a possible plea of guilty with his attorney. It is within the discretion of the trial judge to decide whether the facts and circumstances raise a bona fide doubt of the defendant’s sanity so as to require a hearing. (People v. Pridgen, 37 Ill2d 295, 226 NE2d 598; People v. Milligan, 28 Ill2d 203, 190 NE2d 753.) Upon a review of the facts and circumstances in this case, we cannot conclude that the trial judge abused his discretion in denying the defendant’s request for a Behavior Clinic Examination. See People v. Foley, 28 Ill2d 426, 192 NE2d 850; People v. Cleggett, 22 Ill2d 471, 177 NE2d 187.

The defendant next argues that he was wrongfully denied the right to examine documents held by the prosecution. Specifically, the defendant asserts as error the denial of his requests relative to statements by Colleen Hutto Gochenour, Leonard White, James Glover and Officer John Loftus. It is settled in Illinois that the State is required on demand of the defendant to produce for impeachment purposes specific statements in its possession made by a State’s witness which have been established to exist and which are the witness’ own words or substantially verbatim. People v. Moses, 11 Ill2d 84, 142 NE2d 1; People v. Wolff, 19 Ill2d 318, 167 NE2d 197; People v. Neiman, 30 Ill2d 393, 197 NE2d 8.

Colleen Gochenour merely testified as a “life and death” witness for the State. After her direct examination, the witness stated that she was not sure whether she had given a statement to the police and the State’s Attorney denied having any written statements made to the police. The record does not indicate that the defense counsel then requested that either he or the court examine the State’s Attorney’s or the police files. The trial judge said that it was not necessary for the prosecution to offer to check through the files since the purpose of the witness’ testimony was simply to establish that she saw him alive and then saw him dead and therefore, there was no disputed testimony which could be impeached. In any event, the defendant was not denied his right to examine documents the very existence of which was not demonstrated. See People v. Wright, 30 Ill2d 519, 198 NE2d 316.

The defendant also unsuccessfully attempted to have produced “another report” containing a memorandum of conversations between Leonard White and the police. The defendant was furnished with a report which contained the statements of White to the State’s Attorney. However, at a point in the trial, the court discovered a memorandum of conversations between White and Officer Loftus and this report was supplied to the defendant thereby curing any error which might have initially resulted in refusing its production.

Another police officer, James Glover, simply testified on direct examination that he found the victim lying on the ground at the dock and also found a bloodied knife near his side. The defendant, on cross-examination, demanded the Officer’s street report. The court denied the request saying: “Well, I don’t think counsel is entitled to the Police Keport of the case. This officer’s testimony is very simple and right to the point. You may cross-examine him.” It is difficult to see how this simple and direct testimony was susceptible to impeachment. We fail to see how the defendant was prejudicially affected by such a denial.

It should be noted that these requested statements did not in any way pertain to such a crucial issue as the identification of the accused as was the issue before the court in the Moses, Wolff, and Wright decisions. Upon a review of the entire record, we fail to see how any or all of the rejected evidence could in any way have affected the verdict, and therefore the rejection of the defendant’s requests did not prejudice him so as to require a reversal of this judgment. See People v. Wolff, supra.

Upon cross-examination of the defendant, the State attempted to impeach the defendant by confronting him with answers he had purportedly made to specific questions at the Coroner’s Inquest. The defendant denied that he had talked to any truck driver on the evening in question and also denied that he had ever touched the victim. The defendant stated that he did not know whether he made inconsistent answers to these questions. The State made no attempt to prove the alleged impeaching statements. Once the foundation for impeachment by prior inconsistent statements has been laid, it is incumbent upon counsel, having laid such foundation, to offer proof of the alleged impeaching statements. Schoolfield v. Witkowski, 54 Ill App2d 111, 203 NE2d 460; People v. Irish, 77 Ill App2d 67, 222 NE2d 114; Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348.

However, such a failure to prove the impeachment does not of necessity constitute reversible error. (People v. Sanders, 357 Ill 610, 192 NE 697; Schoolfield v. Witkowski, supra.) In view of the additional evidence in the record and in view of minimal importance of the aforementioned questions and answers, we conclude that the State’s failure to prove the impeaching statements was not reversible error.

The defendant further contends that he was prejudiced by the trial court’s allowing Officer Loftus to testify to a statement made by Leonard White which clearly inculpated the defendant. The statement was initially admitted over objection by the defendant. After the direct examination of the defendant, the court reversed itself and sustained the defendant’s motion to strike that portion of Officer Loftus’ testimony and instructed the jury to disregard it.

The defendant argues that even though the statement was made by White in the presence of the defendant, there was not sufficient evidence to show that the defendant assented to the statement so as to make the statement admissible against him as his own statement by adoption. We agree that the defendant’s statements and actions immediately following White’s statement to the police negated any indication that he assented to the veracity of White’s statement. Therefore, the admission of White’s statement to Officer Loftus was error. However, the question still unanswered under the facts in this case is whether it constitutes reversible error. In Bruton v. United States, 391 US 123, the court reiterated the rule announced in Pointer v. Texas, 380 US 400, in which it said that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him, which is secured by the Sixth Amendment. In the Bruton decision, the court overruled the rule laid down in Delli Paoli v. United States, 352 US 232, which decided that the conviction of a defendant in a joint trial need not be set aside where the jury was instructed that a codefendant’s confession inculpating the defendant had to be disregarded in determining his guilt or innocence. In Bruton, on page 126, the court said:

“We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.”

The Supreme Court in Roberts v. Russell, 392 US 293, announced that the rule set forth in Bruton was to be applied retroactively, both to state and federal prosecutions, and, therefore is applicable to the case at bar.

The basis for the rule in Bruton is the denial of the defendant’s right to confront and to cross-examine the party who was alleged to have made the admissions or confessions which inculpated the defendant. In the instant case, White became a witness for the State and testified to substantially the same matters that were contained in his statement to Officer Loftus. The defendant did confront and cross-examine White. At no time did White deny making the incriminating statement to the police and therefore his presence on the witness stand gave the defendant the opportunity to cross-examine White. In Bruton and Roberts, supra, such an opportunity was not present.

The case at bar is also distinguishable from this court’s recent decision of People v. Scott and Walker, 100 Ill App2d 473, 241 NE2d 579, in which we held that the use of a codefendant’s extrajudicial inculpating statement was prejudicial error despite warnings by the court that the statement should be considered only as to the defendant who made the statement. In that case, we cited Bruton v. United States, supra, and Roberts v. Russell, supra. In Scott, the purported maker of the statement did take the stand as in the case at bar, but in that case, we emphasized that confrontation would be meaningless and cross-examination would be futile since the maker denied making the incriminating statement. Since White not only did not deny making the incriminating statement but also basically reiterated it on the witness stand, cross-examination could not be deemed futile in the instant case. We therefore do not consider the admission of the testimony of Officer Loftus regarding White’s statement to him to be reversible error.

The defendant raises an additional point which he fails to argue. Points not argued are waived. Supreme Court Rule 841 (e) (7). Therefore, this court will not consider the defendant’s final assignment of error.

We therefore conclude that the conviction for murder should be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Drewniak, et al., Defendants-Appellants.
    Gen. No. 51,853.
    First District, First Division.
    January 13, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants, Thomas Drewniak, Patrick Golick and Robert G. Hobbs, were charged with armed robbery (Ill Rev Stats 1967, c 38, § 18-2) in a two-count indictment. Count I of the indictment charged all three defendants with forcibly taking $600 from Leo Lesniak while armed with a dangerous weapon. Count II of the indictment charged all three defendants with forcibly taking $3.75 from Mary Kozlik while armed with a dangerous weapon. The defendants waived a jury trial and pleaded not guilty. After a trial the court found all three defendants guilty in the manner and form charged in the indictment. Thomas Drewniak was sentenced to a term of years not less than five nor more than five years and one day. Patrick Golick was sentenced to a term of five to eight years. Robert G. Hobbs was sentenced to a term of twelve to fifteen years.

On appeal, the defendants contend that (1) there was a total lack of proof to support the court’s finding on Count n of the indictment; (2) the court improperly considered hearsay testimony in the hearing on aggravation and mitigation; and (3) the minimum sentences given the defendants were excessive and should be reduced.

The defendants do not dispute the fact that the record supports the court’s finding of guilty of armed robbery as charged in Count I. The defendants maintain, however, that though there was a total lack of proof to support the court’s finding on Count II, the effect of the judge’s ruling (that all three defendants were guilty in the manner and form charged in the indictment) was to find the defendants guilty of both crimes charged in the indictment.

We briefly summarize the evidence. The three defendants entered a tavern located at 2462 South Blue Island Avenue and announced that “this is a stick up.” The defendant, Robert Hobbs, while armed with a gun, took $500 in ten-dollar bills from Lesniak’s wallet and then cleaned out the cash register containing Thirty to Thirty-five Dollars in quarters, Five Dollars in half-dollars and a few dollars in one-dollar bills. The two other defendants stood by the door inside the tavern. Mary Kozlik, the other alleged victim, testified that she was drinking an orange juice and had $3.75 lying on the bar at the time of the robbery. After the robbers had left, Mary Kozlik testified that she went to the bar, picked up her $3.75 and then ran to the alley where she saw three men pulling away in a blue convertible. However, on cross-examination, she testified that after the defendants left the tavern, her money was no longer on the bar. A blue and white Pontiac belonging to Hobbs was found about a half block from the tavern. The three defendants were subsequently arrested and identified as the robbers. When Drewniak was arrested he had eighty quarters in his pocket. Hobbs had Three Hundred Dollars in ten-dollar bills when he was arrested.

In a general finding of guilty where crimes grow out of the same robbery as in the instant case, the effect of the decision is that the defendants were found guilty as charged in each count. People v. Schlenger, 13 Ill2d 63, 147 NE2d 316. Thus, though the record is far from clear as to whether the defendants actually took Mrs. Kozlik’s $3.75, they were convicted of doing so. Reversing the trial, court’s decision in Count II will not affect the defendants’ sentences since they were properly convicted on Count I. However, since the conviction in the second count of the indictment might operate to the disadvantage of the defendants before the Parole and Pardon Board, People v. Schlenger, 13 Ill2d 63, 147 NE2d 316, the judgment as to Count II is reversed.

The defendants’ second contention is that the court improperly considered hearsay evidence at the hearing in aggravation and mitigation. Included in this contention is the defendants’ objection to police officers advising the court of various arrests involving the defendants, but upon which there were no findings of guilty; the defendants’ objection to the statement made by the prosecutor that Hobbs was the motivating force behind the robbery; and the defendants’ objection to the fact that no witnesses were sworn and the defendants’ counsel was not permitted an opportunity to cross-examine the witnesses. Under these circumstances, the defendants say that they were not given a proper hearing in aggravation and mitigation and that the sentences imposed should be vacated.

The first objection made by the defendants under their second contention concerns the action of the prosecutor and police officers in advising the court of those arrests of the defendants which did not result in convictions. At the post-trial hearing the police informally stated that according to their records defendant Patrick Golick had been arrested for aggravated assault and criminal damage to property. The police records revealed, however, that there was no disposition of these charges. The court was also informed that the same defendant was charged with contributing to the delinquency of a minor, but that the charge was dismissed for want of prosecution. When the court was considering the sentence to be given Eobert Hobbs, the State’s Attorney advised the trial judge that the defendant Hobbs had been charged with assault with intent to murder a police officer, but that the case was nolle prossed. The defendants maintain that the purpose of showing these arrests was grossly prejudicial. They argue that since a defendant is presumed to be innocent until convicted of the crime charged and that since this presumption exists at all times and for all purposes, the only purpose the State could have had in showing the arrests was to draw an unfavorable inference against the defendants.

We agree with the defendants that arrests or other encounters with the law which have not resulted in convictions should not be admitted into evidence at the hearing in aggravation and mitigation. People v. Riley, 376 Ill 364, 367, 33 NE2d 872; People v. Jackson, 95 Ill App2d 193, 238 NE2d 196. However, we do not think that the admission into evidence of these arrests in the instant case was prejudicial to the two defendants. The record in the case at bar gives no indication that the trial judge was influenced by any unfavorable inferences which might have been drawn from the prior arrests of Hobbs and Golick which did not result in convictions. Thus, we cannot say, as the Court said in Jackson, that “it is readily apparent that in sentencing the defendant the trial court gave consideration to and placed weight upon his prior arrests and other encounters with the law which did not result in convictions. ...” People v. Jackson, 95 Ill App2d 193, 201, 238 NE2d 196. The fact that Golick was convicted of aggravated assault for which he served eight months in the House of Correction and that Hobbs was convicted on three separate indictments of armed robbery leads us to believe that any unfavorable inferences which could be drawn from the other arrests were merely superfluous and did not prejudice either of the two defendants.

The second objection made by the defendants under their second contention concerns a remark made by the prosecutor during the hearing in aggravation and mitigation. We have carefully examined the record in light of the statement that Hobbs was the “moving factor in the initiation of this robbery” at the tavern and we cannot say after considering the evidence and circumstances surrounding the robbery that this statement transcended the bounds of legitimate argument at a hearing in aggravation and mitigation.

It should be remembered that in an aggravation and mitigation hearing the court is presumed to disregard any incompetent evidence when determining the degree of punishment. People v. Bradford, 23 Ill2d 30, 177 NE2d 139. The rules of evidence which govern at a trial do not bind the court in its inquiry into those factors which might aggravate or mitigate the defendant’s punishment. The court may, in such a proceeding, look to the facts of the offense, and it may search anywhere, within reasonable bounds, for other facts which tend to aggravate or mitigate the offense. “It is not a trial in the ordinary sense of the word.” People v. Grabowski, 12 Ill2d 462, 466, 147 NE2d 49. We must also note that the trial judge who sentenced the defendants also observed the defendants during the trial and heard and saw the witnesses.

The defendants also argue, under their second contention, that they were prejudiced because they were not allowed to cross-examine the State’s witnesses in the hearing in aggravation and mitigation. Whether cross-examination is permitted in this proceeding is a matter for the trial court to decide. The record, however, shows that the defendants’ counsel was permitted to ask questions of the prosecutor and the police officers. We find no abuse of the trial court’s discretion in this regard.

The defendants’ third and final contention is that the minimum sentences given the defendants were excessive and should be reduced. The defendants remind us that under the provisions of Supreme Court Rule 615 (b) (4) this Court is vested with the power to reduce the sentence imposed by the trial court. This rule provides that on appeal, the reviewing court may reduce the punishment imposed by the trial court. We are in accord with the defendants that the primary purpose of this rule is to prevent arbitrary or oppressive treatment of offenders and to provide penalties which are both proportionate to the circumstances of the case and recognize the differences in the rehabilitation potential of individual offenders. We do not, however, agree that the trial court disregarded this principle or did not consider that the defendants might be given minimum sentences as an incentive to reform, thus giving the parole authorities greater discretion in the treatment of these defendants. The evidence, when viewed in light of the nature of the crime and the background of the defendants, demonstrates to this Court that no useful purpose would be served by disturbing the sentences imposed by the trial court. People v. Thompson, 36 Ill2d 478, 224 NE2d 264. The sentences imposed upon the defendants are within the statutory range of penalties for the crime of robbery while armed and will, therefore, be affirmed.

The judgment is reversed in part and affirmed in part.

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

       No claim is made that the defendants did not have an opportunity to submit facts in mitigation.

       The Court supported its conclusion with the following comment made by the trial judge just prior to sentencing: “I am going on his entire record. And he is one apparently from his record who is quick to engage in violence.” People v. Jackson, 95 Ill App2d 193, 201, 238 NE2d 196.


author:
MR. PRESIDING JUSTICE ADESKO
      BURMAN, J.,

text:
    Harry McIntyre, Plaintiff-Appellee, v. The Belt Railway Company of Chicago, a Corporation, and Peter Hanik, Defendants-Appellants.
    Gen. No. 52,249.
    First District, First Division.
    January 13, 1969.

      Richard F. Koproske and Glen H. Carrier, of Chicago (Glen EL Carrier, of counsel), for appellant.
    Horka & Lindell, of Chicago (Charles E. Lindell and Manuel Rosenstein, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Harry McIntyre, plaintiff, brought this personal injury action to recover damages occasioned by the alleged negligence of the defendant, The Belt Railway Company of Chicago, in the operation of its diesel switch engine at a railroad crossing at grade. Defendant, Peter Hanik, was dismissed as a party to the cause after the jury was selected. The jury rendered a verdict for the plaintiff, upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.

The plaintiff, Harry McIntyre, was injured on April 24, 1961, at about 7:00 p. m., when his automobile was struck by defendant’s switch engine at a railroad grade crossing near 67th Street and Lavergne Avenue, in the Village of Bedford Park, Illinois. Plaintiff had left his gasoline station, at 7400 South Cicero Avenue, drove North on Cicero to 67th Street, turned left and went West on 67th Street to Lavergne, a distance of about two blocks. At Lavergne there is a stop sign and a railroad cross-buck sign. Plaintiff stopped his automobile and then proceeded to turn right to go Northbound on Lavergne. There is a railroad crossing consisting of four sets of tracks crossing Lavergne at right angles in an East and West direction. As one travels Northbound on Lavergne, the first set of tracks is approximately ten to fifteen feet North of 67th Street. The second set of tracks is approximately fifty feet North of 67th Street. The third set of tracks is about five feet North of the second set of tracks, and the fourth set of tracks is about ten feet further North of the third set. Both the second and third set of tracks originate in a factory on the East side of Lavergne Avenue, and each set emerges from a different entrance.

The area where the accident took place is predominately industrial and commercial, with factories on both sides of Lavergne Avenue. The defendant’s diesel locomotive involved in this collision was being operated on the third set of tracks, and was emerging in a backward direction from the factory entrance on the East side of the street. As the defendant’s locomotive emerged from the factory, it was at first heading directly South, then the third set of tracks curves to the West, and by the time the locomotive emerges from the curve to the West, it is heading almost due West as it reaches Lavergne Avenue. The weather conditions that evening were poor—■ it was very dark and cloudy, and it was raining. There were no street lights at the intersection of 67th and Lavergne. There were no lights in the area of the third set of tracks crossing Lavergne Avenue, nor any lights emerging from the factories. There were no crossing gates, flashing lights, flagmen or guard towers, where the tracks cross Lavergne Avenue, nor were there any pedestrians present at the time of the collision.

As the plaintiff turned to go North on Lavergne, he was following a line of approximately twelve cars going in the same direction, and he was followed by about the same number. Plaintiff was traveling about five to ten miles per hour as he approached the third set of tracks. He saw only the headlights of cars going North and South across the tracks. When the front portion of plaintiff’s automobile was on the third set of tracks, his vehicle was struck on the right side by the defendant’s locomotive. Members of the locomotive crew testified that the locomotive was traveling two to four miles per hour; that the bell was ringing; that the headlight was on bright; and that the engineer blew the whistle several times as they approached the crossing. All five members of the locomotive crew were riding on the locomotive at the time of the collision.

The evidence adduced by plaintiff at the trial concerning the collision disclosed that he was familiar with the crossing, since he had traveled over the railroad intersection over one hundred times in the past, but had never seen a train or locomotive operating on the tracks prior to the accident. Because it was raining, all the windows of his car were up. The windshield wipers were on as well as the defroster and heater. He heard no bells, whistles or horns, nor saw any flashing lights, and when he reached the third set of tracks he was struck by something “like a ton of bricks.” Plaintiff was dazed and did not recall what happened next. When he awoke, he was in the hospital.

On cross-examination, plaintiff testified that the muffler of his car was defective and that it made a purring sound. Defense counsel impeached the plaintiff as to the condition of the muffler as follows:

“Q. Would you admit that the muffler was noisy that night?
“A. Not so noisy that I couldn’t hear a train. As a qualified mechanic I would say it was more like a purr than a roar. . . .
“Q. You mean your muffler purred ?
“A. It had a little pin hole in it. . . .
“Q. I see. Calling your attention to this deposition that you gave ... I will ask you if this question was asked and if this answer was given:
“ ‘Q. During the period of time then that you moved from track No. 2 to track No. 3, did you look to your left or to your right?
“ ‘A. I was looking to my left. I heard—got a, got a noisy muffler on the car because the muffler was shot. So the muffler was making noise and I could hear loud factory noises.’
“Q. Was that question asked and that answer given?
“A. Yes.”

Plaintiff continued to testify that the lights of his automobile did not flare out to illuminate peripheral areas but that they were set to illuminate the area directly in front of the automobile. Plaintiff stated that he looked both ways before crossing the third set of tracks but could not see out the right-hand door windows because of the rain. Again, plaintiff emphasized that he saw no locomotive or locomotive headlight; nor heard any horn, whistle or bells, and that he was following other cars over the tracks at about five to ten miles per hour and at no time applied his brakes to stop his vehicle. This was the extent of the evidence plaintiff produced as to the accident. Defendant’s motion for a directed verdict at the close of plaintiff’s case was denied.

Defendant presented the testimony of three of the crew of the locomotive, which in summary was that the locomotive had made a switching operation at one of the factories in the area and was backing upon the third set of tracks. The engineer sounded his whistle for the crossing, the engine bell had been ringing since they left the factory building area, the engine headlight was on bright, directed towards the crossing area, and there were lanterns on the engine at the time. The locomotive was traveling about two to four miles per hour around the curve and there was no obstruction to the view as they approached the crossing, although it was raining and very dark. The brakes of the locomotive were applied immediately before the collision. Harry Meritt, the fireman on the locomotive, also testified the southbound traffic had stopped. At the time of the impact all five crew members were on the locomotive, three were in the cab, one was at the head of the engine and one at the rear. At the time of the trial, the engineer, Mr. Haney, had passed away.

It is Belt’s theory that the plaintiff failed to show any negligence on the part of Belt that was the proximate cause of his injuries and that the plaintiff failed to prove due care on his part which makes him guilty of contributory negligence as a matter of law.

We note that plaintiff did not offer any eyewitnesses to this accident. In addition, there was no evidence presented by plaintiff concerning the negligent operation of the locomotive; no evidence as to the speed of the train; and no evidence that defendant negligently operated its locomotive into the plaintiff’s automobile. There was no testimony that the crew of the locomotive was negligent and by the plaintiff’s own testimony, he did not see any flashing light, or anything else, when he looked to the right when crossing the third set of tracks because of the misting rain and the poor visibility through the wet window. Inside plaintiff’s automobile, the defroster and heater were turned on and the windshield wipers were operating. With a defective muffler also contributing to the noise level and as plaintiff stated the noise from the adjacent factories, it is understandable that the plaintiff testified he heard no bell, whistle or horn or warning sounds from the oncoming locomotive.

Negligence is a question of fact. McCann v. City of Waukegan, 88 Ill App2d 284, 227 NE2d 558 (1967). It is obvious that damages cannot be assessed upon a mere surmise and conjecture as to what possibly happened to cause an injury, since the law requires affirmative and positive proof of actionable negligence as to the proximate cause of injuries and resulting liability. Sansone v. Atchison, T. & S. F. Ry. Co., 83 Ill App2d 435, 228 NE2d 101 (1967).

It is our opinion from a reading of this record that there is no evidence, direct or circumstantial indicating that defendant caused the accident in question. The mere fact that defendant’s locomotive came in contact with plaintiff’s automobile does not make that negligence. Inasmuch as the testimony of the plaintiff failed to (1) disclose any fact giving rise to a reasonable inference that defendant was guilty of any negligence; (2) establish the cause of the accident; and (3) connect the defendant to the cause of the accident, we think the plaintiff failed to make out a prima facie case against the defendant.

Implicit in any verdict for a plaintiff, there must be a finding of the absence of any contributory negligence on his behalf. Freedom from contributory negligence must be affirmatively pleaded and proved by the plaintiff. Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439 (1968). In considering whether plaintiff was contributorily negligent as a matter of law, the evidence must be considered, with all reasonable inferences to be drawn therefrom, in its aspects most favorable to the plaintiff. The uncontradicted evidence shows that the headlight of the locomotive was burning, that the bell was ringing, and the whistle was blown for the crossing, yet the plaintiff heard nothing, nor saw anything.

Plaintiff made no effort to explain why he did not hear anything, yet he testified that the windshield wipers were on, the defroster was operating, the heater was on and there were noises coming from the muffler of his automobile. In addition, there was a noise from the adjacent factories and the volume of traffic going over the four sets of tracks. The right side-door window was rolled up and wet from the falling rain and plaintiff could not see out of it, yet he stated that he approached the crossing with caution and looked both ways. When there is any evidence which tends to show plaintiff’s due care, the question of due care is for the jury, but whether there is any such evidence, is a question of law, and in determining that question the Appellate Court can examine the record to determine whether such evidence really exists. Elliott v. Elgin, J. & E. Ry. Co., 325 Ill App 161, 59 NE2d 486 (1945). Under the factual situation as disclosed by the evidence in this case, we are of the opinion that the plaintiff has failed to establish due care on his part.

While the trial judge declined to grant defendant’s post-trial motion for a new trial, a reviewing court may overturn a jury’s verdict if such is contrary to the manifest weight of the evidence. Whitman v. Prescott, 80 Ill App2d 49, 225 NE2d 384 (1967). We find the jury’s verdict was unreasonable and opposed to the weight of the evidence and therefore grounds for a new trial. Since there must be another trial of this cause, we shall not discuss the other contentions raised by the defendant.

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

Judgment reversed and remanded.

MURPHY, J., concurs.

BURMAN, J.,

dissenting:

I cannot agree with the conclusion reached by the majority of the Court that the plaintiff failed to establish that he had exercised due care or that the plaintiff failed to make out a prima facie case giving rise to a reasonable inference that the defendant was guilty of negligence.

The plaintiff testified at the trial that the collision in which he and the defendant, Belt Railway Company, were involved occurred in a heavily industrial area. The plaintiff stated that in order to reach his destination, he had to cross four sets of railroad tracks, crossing Lavergne Avenue within this area. Plaintiff said that he had passed through the crossing at least a hundred times prior to the collision and that he had never encountered a locomotive on the tracks until the evening in question. After setting the time of the collision at about 7:00 p. m., the plaintiff said that he had turned on his headlights because of the darkness and that he had turned on his windshield wipers because it was “misting rain and drizzling.” He further stated that he was following about twelve cars and that the same number were following him. The plaintiff said that when he came to the crossing he stopped his car at the stop sign, turned, looked both ways, and not seeing an approaching train proceeded forward. As the plaintiff approached the third set of tracks he was struck by defendant’s locomotive and was injured. The plaintiff said that he neither heard a bell or whistle nor saw a light on the locomotive. Also, there was no artificial illumination at the crossing—no streetlights, factory lights, blinking signals or crossing gates. The record reveals that the defendant’s diesel locomotive was not attached to any cars and was in the process of backing up from a factory entrance along a curving track when it collided with the plaintiff’s car. A flagman was not present at the crossing although there were four men on the locomotive. A police officer testified that the traffic was quite heavy before and after the time of the collision.

Edward Dean, a conductor on the locomotive and the person directing its operation, testified on cross-examination that when the locomotive was fifty to seventy-five feet from Lavergne Avenue he saw a car go across the crossing in a northerly direction. At that moment the conductor stated, he also saw the plaintiff’s car turning the corner of 67th and Lavergne Avenue. From that time until the moment of impact, the conductor testified that he did not take his eyes off the plaintiff’s car.

The defendant takes the position that “ [t] he prime controversy is whether the defendant had a light on the train, blew a whistle or sounded a bell.” Apparently, if any of these elements were present the plaintiff would be barred from recovery, because warned of the locomotive’s presence he nevertheless proceeded through the crossing, thus failing to exercise due care. The defendant maintains that because the “[pjlaintiff’s testimony as to the light, whistle and bell is negative in character” and the plaintiff’s testimony was countered by positive testimony from the defendant’s witnesses, the plaintiff failed to raise an issue of fact about the absence or presence of the light, whistle or bell, and the question should not have gone to the jury.

The defendant cites Berg v. New York Cent. R. Co., 391 Ill 52, 62 NE2d 676, in support of his theory. In Berg, the Illinois Supreme Court was asked to determine “whether the negative testimony of plaintiff’s witnesses may be considered as proving, or tending to prove, that no warning was given of the approach of the train by sounding of a bell or whistle.” Although the Court considered this question holding “that negative evidence is admissible where the attending circumstances are such as to show that it has some probative force” and that “[t]here was a conflict in the evidence on this issue [whether a warning was given] and its weight was for the jury” the Supreme Court held that the icy condition of the street was the proximate cause of the plaintiff’s injury, not the defendant’s wrongful act, and under such circumstances there was no question of fact for the jury.

I fail to see how the Berg case supports the defendant’s contention in the case at bar. Rather, the dicta relied on by the defendant appears to bolster the plaintiff’s claim that he presented a prima facie case even though he used negative testimony. I believe that the record in the instant case reveals that the attending circumstances were such as to show that the plaintiff’s negative testimony had some probative force and thus there was a question of fact for the jury to consider. Furthermore, I do not believe that the jury’s determination on the conflicting evidence should be disturbed by this Court. As stated in Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 323, 146 NE2d 205:

The jury saw and heard the witnesses. Where disputed questions of fact are presented to a jury and the jury passes upon them, unless palpably erroneous, the finding of fact will not be disturbed by the reviewing court. It is not the province of the court to substitute its judgment for that of the triers of the fact, where there is a conflict in the evidence. It is the province of the jury alone, to determine the weight and the credibility of witnesses. To be against the manifest weight of the evidence requires that an opposite conclusion be clearly evident.

I am of the opinion, after examining the record in this case, that the actions of the trial judge who saw and heard the witnesses and who denied the defendant’s post-trial motions after receiving the jury’s verdict were correct and should have been affirmed.

       The Court was of the opinion that “[t]he negative testimony of plaintiff’s witnesses was sufficient to sustain the finding of negligence when attacked by a motion for judgment non obstante veredicto.”


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward L. Robinson, Defendant-Appellant.
    Gen. No. 52,396.
    First District, First Division.
    January 13, 1969.

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

delivered the opinion of the court.

In a bench trial, defendant was found guilty of unlawful possession of a narcotic drug in violation of chapter 38, § 22-3 (Ill Rev Stats 1963). He was sentenced to two to three years in the penitentiary. On appeal defendant contends that his motion to suppress evidence was improperly denied; that prejudicial trial errors were committed; and that he was not proved guilty beyond a reasonable doubt.

On October 20, 1966, and in Chicago, a known police informer told two Chicago police officers he had just purchased a bag of marijuana, and he pointed out defendant as the seller. The police officers then arrested the defendant, searched him, and found a bag of marijuana. Defendant’s pretrial motion to suppress was denied. At the trial defendant waived his right to a jury trial, and it was stipulated that the facts heard on the motion to suppress would be the same as that heard on the trial.

At the hearing of the motion to suppress on February 3, 1967, defendant testified he was waiting for a bus when a police officer told him that he wanted to search him. He was searched in a hallway by Officer Jerrett, who found a package of marijuana on defendant’s person. Defendant was not shown a warrant for his arrest nor a search warrant, and he did not try to escape nor did he threaten the officer’s life. After the arrest was made, another police officer arrived (Officer Willis M. Cola).

On behalf of the State, Officer Cola testified that on October 20, he was working with Officer Jerrett. At about 8:00 p. m. they were in the vicinity of 43rd and Calumet and had a conversation with a police informer whom Officer Cola had known for about a year. The informer stated to them that he had just purchased a bag of marijuana from a man known to him as “Edward,” v/ho was still in the vicinity of 43rd and Calumet. Shortly thereafter, and while in an automobile which was being driven by Officer Jerrett, the informer pointed out the defendant as the man who sold him the marijuana, and the informer then left the car. Defendant was then placed under arrest, and while on the street, near an alley, Officer Jerrett searched defendant and found a white envelope that contained a quantity of crushed green plant.

Officer Cola also testified that prior to October 20, 1966, he had received information concerning narcotics from the informer about three or four times, on which arrests were made and in one case there was a conviction. Without consulting his files the officer could not recall the names of any of the persons who were arrested as a result of the information given by the informer. Although the trials were in the Criminal Courts Building, he could not recall the courtrooms where the trials took place.

On cross-examination, Officer Cola was extensively questioned about the informer and the officer’s inability to remember the names of any of the persons arrested on the informer’s information. He did know there was one conviction because he was at the trial. He further said that defendant was searched on the street and not in a hallway, and no one else was searched at that time.

In rebuttal, defendant testified that before and after the time he was arrested, he saw Officer Cola search a number of people, and “they had a hallway and they had four or five fellows in there.” He did not know their names, but he had seen them before.

In considering the motion to suppress, the trial judge reviewed at length the evidence and the issue of the reliability of the informer. As to Officer Cola’s failure to remember the names of those persons arrested on the information received from the informer, the judge remarked that because of the numerous arrests made by an officer on the Vice Detail, “probably five or six hundred arrests during a couple of years or three-year period, it is quite evident that he would be unable to remember and recall all of the convictions that resulted from the information received from any one informer.” The trial judge also ruled that it was unnecessary for the second arresting officer (Jerrett) to testify and denied a request to compel the appearance of the informer because he was not present at the time of the arrest, and found that the testimony of Officer Cola was sufficient to show the reliability of the informer. In concluding that the police officers had probable cause and the arrest was lawful, the court said, “The police officers had probable cause to believe the defendant was in the process of committing a crime or had immediately prior thereto committed a crime. Therefore, the arrest and the search was lawful,” and denied the motion to suppress.

On May 25, 1967, the matter came on for trial before the same judge who denied defendant’s motion to suppress. At that time defendant waived his right to a jury trial, and it was stipulated in detail that the testimony heard on the motion to suppress would be the same as if heard on the trial. It was further stipulated that the contents of the envelope found on the defendant after his arrest contained marijuana.

After stating the terms of the stipulation, the assistant State’s Attorney then related defendant’s previous criminal record. Counsel for defendant objected, and the court found that it was premature. The State agreed and said it was a mistake based upon the Assumption that the court had already entered judgment.

In finding defendant guilty, the trial judge stated, “Let the record show the Court is in no manner taking into consideration the defendant’s background as read into the record by the State's Attorney. However, the Court had been fully advised of the defendant’s record prior to the time of the reading of the record—submitting the matter to this Court and that in arriving at the determination here, the Court is in no manner taking into consideration any of the facts heretofore read into the record by the State.”

On appeal defendant contends his arrest and search and seizure were unlawful because the officers had no warrant and the information given to the police officers was by an informer who was not shown to be reliable; therefore the officers lacked probable or reasonable cause for defendant’s arrest and search. Defendant argues that there was no emergency about his arrest. “He wasn’t fleeing any place or threatening to. He was apparently always in the vicinity of 43rd and Calumet. There was ample time to obtain a search warrant based on the information Cola thought to be reliable. If defendant was selling the stuff as the informer told Cola, this must have been going on over a considerable period of time. No search warrant was obtained.”

Defendant’s authorities include People v. McClellan, 34 Ill2d 572, 574, 218 NE2d 97 (1966):

“Probable cause for an arrest may, of course, be based upon information supplied by an informant, if the reliability of the informant has been previously established (People v. Durr, 28 Ill2d 308) or independently corroborated. People v. McFadden, 32 Ill 2d 101.
“The fact that the officers made three arrests based on information furnished by Slick shows only that they acted on his previous tips and does not show that the previous tips proved to be accurate. While it might be inferred that the officers would not continually act on Slick’s tips if they proved to be unreliable, nevertheless, we feel the informer’s past reliability should not be left to inference, when it is such an easy matter to show the accuracy of the previous tips. It is not necessary for us to decide whether the People must show that the previous tips from an informer resulted in convictions, as the defendant contends; but it is sufficient, at this time, to hold that the fact that the police acted upon previous information of an informer does not prove that the prior information was accurate and the informer reliable.”

Also, Niro v. United States, 388 F2d 535 (1968), where it is said (p 539):

“The Court continues to stress the desirability of obtaining a search warrant when it is reasonably practicable to do so. See, e. g., Katz v. United States, supra.
“We think it proper to say that while the failure to obtain a warrant when one could readily have been had is not of necessity fatal to a search or seizure concomitant with an arrest the nature of which had been fully anticipated, it will be fatal unless there are at least some countervailing factors. . . . the government cannot rely upon an expected arrest to seize stolen goods, the presence of which it long had probable cause to know of, simply to avoid the inconvenience of obtaining a search warrant. . . .
“. . . Proceeding without a warrant is not to be justified ... by the fact that by the time the officers act, dispatch is necessary to avoid flight or injury to person or property. Haste does not become necessary ... if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle.”

Because of sufficient factual differences here, a discussion of defendant’s authorities on this point is not required. We believe the pronouncements made in People v. McCray, 33 Ill2d 66, 210 NE2d 161 (1965), supply the guidelines to be used here.

As to defendant’s arrest, we agree with the trial court that the information received from the informer, as such, was sufficient to give the officers probable cause to believe that the defendant was committing or had committed an offense. (Ill Rev Stats, c 38, § 107-2 (a) and (c).) They were informed by a purchaser as to a narcotics sale just made, and it was also reasonable to believe that a narcotics dealer might have on his person possession of other narcotics for sale.

The credibility of Officer Cola was a question for the trial court, and the trial judge chose to believe him. The pertinent remarks of the trial judge demonstrate that the factors considered by the court justified its ruling that the reliability of the informer was sufficiently established and that defendant’s arrest without a warrant was lawful.

The subsequent incidental search of defendant was proper here. As noted above, it was reasonable to believe that defendant might have had possession of additional narcotics available for sale. It was not necessary-in this case for the officers to procure a search warrant. The pronouncements made in United States v. Rabinowitz, 339 US 56 (1950), apply here. There the court discussed at length the reasonableness of a search without a search warrant incident to a valid arrest and said (pp 65-66):

“A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. . . . Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential .... The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances— the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right or privacy within the broad sweep of the Fourth Amendment.”

We therefore conclude that the evidence on the motion to suppress justified a determination that the officers had such a reasonable belief that defendant was committing a criminal offense as to justify the arrest without a warrant and the subsequent incidental search.

Considered next is defendant’s contention that in being denied the name of the informer, he was frustrated in his attempt to test the reasonableness of the officer’s conduct and to impeach his testimony as to the reliability of the informer. In People v. Williams, 38 Ill2d 150, 230 NE2d 214 (1967), where, in considering the issue of the disclosure of the identity of an informer, the court said (p 152):

“The issue that sharply divided this court in People v. Durr, 28 Ill2d 308 (1963), has now been resolved by the five-to-four decision of the Supreme Court of the United States in McCray v. Illinois, 386 US 300, 18 L Ed2d 62 (1967), which held that the prosecution is not required to disclose the identity of an informer at a preliminary hearing to determine the existence of probable cause for an arrest or search. The opinion of the majority in McCray recognizes that disclosure at a preliminary hearing to determine the existence of probable cause for arrest or search is governed by different considerations than those that determine the necessity of disclosure when the informer is a material witness on the issue of the guilt or innocence of the defendant at the trial. This distinction has long been recognized in this court. See People v. Miller, 34 Ill2d 527, 529 (1966);

There the court also said (p 153) :

“. . . when the informer’s testimony may bear upon the question of guilt or innocence rather than upon probable cause, the government’s interest in protecting its sources of information must yield to the defendant’s right to a trial based upon all the relevant evidence.”

We find no merit to this contention. The offense charged was possession of a narcotic drug and, as the informer was not present when the defendant was searched, the testimony of the informer would have no significant value on the issue of defendant’s guilt or innocence.

Next considered is defendant’s contention that the failure of the State to call Officer Jerrett to testify “casts a serious doubt upon the State’s case.” It has been repeatedly said in the Illinois authorities that the testimony of one credible witness is sufficient to convict, even though such testimony was contradicted by the accused. See People v. Jones, 30 Ill2d 186, 190, 195 NE2d 698 (1964). We find no error here.

Defendant’s final contention is that before judgment by the court, the recital by the State’s Attorney of defendant’s previous criminal convictions before a finding of guilt or innocence “must have influenced the Court in his finding the defendant guilty and in the matter of imposing the sentence.” This was a bench trial, and the remarks of the court show that the court disregarded the previous conviction statement in the finding of guilt or sentence. We find no error here.

In conclusion, we believe that the total atmosphere of this case calls for the application of the rule that in a bench trial in a criminal case, the reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt. (People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963).) Applying that test here, we believe the trial court was presented with satisfactory and plausible proof on which to find defendant guilty of the charge of possession of a narcotic drug. Therefore, the judgment of the trial court is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Louis Kopple and Morris Klotz, Defendants-Appellees.
    Gen. Nos. 52,466-52,474.
    First District, First Division.
    January 13, 1969.
    Rehearing denied March 12, 1969.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Rudolph Janega and Eldridge R. Hersey, Assistant State’s Attorneys, of counsel), for appellant.
    No appearance made or briefs filed in behalf of appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an interlocutory appeal by plaintiff, People of the State of Illinois, from an order entered by the Circuit Court of Cook County, quashing a search warrant and suppressing evidence. The search warrant was originally issued to search certain premises for certain instruments, articles and things which had been used in the commission of or which constituted evidence of the offense of gambling. The trial court sustained the defendant’s motion to quash the search warrant for the reason that the complaint for the search warrant lacked probable cause for search.

The complaint for the search warrant was made by a special agent of the Federal Bureau of Investigation on October 6, 1966, before a Judge of the Circuit Court of Cook County. The complainant stated in the complaint he had probable cause to believe that apartment 304 at 4750 North Clarendon, Chicago, Illinois, was being used for gambling purposes, based upon the following facts:

On March 24, 1966, an informer advised the complainant that in the recent past he (the informer) had been placing sports bets by calling telephone numbers 275-2026 and 275-2079, and that the persons who accepted his bets at those telephone numbers identified themselves as “Slick” and “Klutz.” On March 24, 1966, the complainant checked the records of the Illinois Bell Telephone Company in Chicago, Illinois, and determined that the two telephone numbers were listed to one Harold Jackson, Apartment 304, 4750 North Clarendon, Chicago, Illinois. Complainant was advised by Special Agent Harold K. Johnson, Federal Bureau of Investigation, that Apartment 304 at 4750 North Clarendon, Chicago, Illinois, is located on the northwest corner of the building, and that on April 8, 13, 20 and 29, 1966, and May 4, 6, and 11, 1966, Johnson personally observed Simon Benjamin Schuster enter and/or leave the aforementioned building. Agent Johnson also informed complainant he saw Morris Kay enter and leave the building on April 29, 1966, and on May 4 and 6,1966.

Complainant was further advised by Special Agent Ger-hard Maisel, Federal Bureau of Investigation, that he had personally checked the records of the Chicago Police Department on December 13, 1965, and determined that Simon Schuster and Morris Kay were arrested by the Chicago Police Department on January 25, 1965, at 4750 North Clarendon, Chicago, Illinois, and charged with gambling. On July 26, 1966, complainant personally observed Simon Schuster open a window in the third-floor apartment on the northwest corner of the building at 4750 North Clarendon, Chicago, Illinois. Complainant also observed Schuster entering and/or leaving 4750 North Clarendon, Chicago, Illinois, on August 25, 30 and 31, 1966, September 1 and 30, 1966, and October 5, 1966.

On August 12, 1966, another informer advised complainant that in the recent past he had placed sports bets with a person known to him as “Slick” at telephone numbers 275-2026 and 275-2079. This informer identified photographs of Morris Kay and Simon Schuster as persons known to him personally as “Klutz” and “Slick,” respectively.

On September 30,1966, the above two unnamed informers advised complainant they had recently placed bets on major league baseball games with “Slick” at telephone numbers 275-2026 and 275-2079. On October 5, 1966, one of the informers in complainants’ presence, dialed telephone number 275-2026, asked for “Slick” and thereafter placed a bet on one of the teams participating in the baseball World Series. The complainant swore, in the complaint for a search warrant, that both informers were known to him; that they had in the past given complainant information on illegal gambling matters which had proved reliable; that both informers furnished the information at separate times; and that neither informer was aware of the identity of the other.

A search warrant was issued and a search was made under the warrant. The two defendants were arrested at Apartment 304, 4750 North Clarendon, Chicago, Illinois, and money and a substantial amount of gambling paraphernalia was seized from them.

After several continuances, a hearing was conducted on May 25, 1967, when defendants presented a motion to quash the search warrant because the complaint did not state facts sufficient to show probable cause for the issuance of the warrant. The trial court sustained the motion on the ground that there was no showing in the complaint for the search warrant of the reliability of the informants, and no probable cause existed for its issuance. The State appealed the order of the trial court pursuant to Supreme Court Rule 604 (a), Ill Rev Stats 1967, chapter 110A, section 604(a). The defendant-appellees have not appeared in the Appellate Court and no briefs have been filed in their behalf.

We are of the opinion that the State is correct in its position that an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, so long as there is a substantial basis for crediting the hearsay. Jones v. United States, 362 US 257, 4 L Ed 697, 80 S Ct 725 (1960). The essence of the trial court’s ruling was that the complaint for a search warrant was based on insufficient hearsay information of the informers, because the affidavit had to first establish the past reliability of the informers by showing that information furnished to the complainant by the informers in the past resulted in arrests and convictions, or indictments, and that the gambling paraphernalia was seized in accordance with People v. McClellan, 34 Ill2d 572, 218 NE2d 97 (1966). In addition, the trial court reasoned that the type of corroboration of the informers’ information was insufficient because the placing of a bet over the telephone in the affiant’s presence was a conclusion, and because the observance of Kay and Schuster, who were previously arrested at the particular premises for gambling, entering and leaving the apartment was not evidence of any wrong doing, nor was complainant’s observation of Schuster’s opening of the apartment window a wrongful act. According to the trial court, sufficient corroboration of the informants’ information would be the complainant’s actual personal observation of the money and betting slips of paper passing between the accused and other persons.

In People v. Williams, 36 Ill2d 505, 224 NE2d 225 (1967), the affidavit of the complainant set forth the personal observations of two informers who had furnished reliable information in the past, and such informers’ information was corroborated by the complainant’s observation of known gamblers entering the involved premises. The court held that a substantial basis for crediting the hearsay was established and probable cause for the issuance of the warrant was shown. In the Jones case, supra, the facts were similar to those of the case at bar. There, a single informant was known to the affiant, and the affidavit recited such informant had on previous occasions given the affiant information which was “correct.” The court held this was a sufficient basis to credit the hearsay and establish probable cause.

Among the principles that are to be used as a guide in determining probable cause for a search warrant as enumerated in United States v. Ventresca, 380 US 102, 13 L Ed2d 684, 85 S Ct 741 (1965), Aguilar v. Texas, 378 US 108, 12 L Ed2d 723, 84 S Ct 1509 (1964), and the Jones case, supra, was the following passage from the Ventresca case:

“Thus hearsay may be the basis for issuance of the warrant ‘so long as there [is] a substantial basis for crediting the hearsay.’ Jones v. United States, supra, at 272. And, in Aguilar we recognized that ‘an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,’ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the affiant’s conclusions and his belief that any informant involved ‘whose identity need not be disclosed . . . was “credible” or his information “reliable.” ’ Aguilar v. Texas, supra, at 114. . . . Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”

It is our opinion that the establishment of the reliability of informers can be established in various ways and is not restricted to the establishment of the “previous reliability” of an informer’s information, as measured by previous arrests and convictions or the like, as suggested by the trial court in the instant case.

The facts which were offered in the affidavit for the establishment of the two informers’ reliability were sufficient in order for the informers’ hearsay information to be the basis for the issuance of the search warrant.

The order of the trial court in quashing the search warrant is reversed and the cause remanded with direction to the trial court to deny the defendant’s motion to quash the search warrant.

Reversed and remanded with direction.

MURPHY and BURMAN, JJ., concur.