text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Larry and Frederick Arrington, Defendants-Appellants.
    Gen. Nos. 52,817, 52,820. (Consolidated.)
    First District, First Division.
    June 6,1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman 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 Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants, Louis Larry and Frederick Arrington, were charged with committing the offense of armed robbery in violation of section 18-2 of the Criminal Code (Ill Rev Stats 1967, c 38, § 18-2). The defendants pleaded not guilty, waived a jury trial and following a bench trial were found guilty of the offense charged. Louis Larry and Frederick Arrington were then sentenced to terms of 2 to 10 years and 1 to 6 years respectively, to be served in the Illinois State Penitentiary.

The sole contention of defendants, on appeal, is that the attendant circumstances surrounding the identification of the defendants establishes that the State failed to prove the defendants guilty beyond a reasonable doubt.

The record reveals that on May 29, 1967, at about 3:00 p. m., the complaining witness, Don Cooperwood, went to cash a check at a neighborhood currency exchange. Cooperwood testified that he passed two men on his way to the currency exchange. One of the two men was Louis Larry, whom the complaining witness said he had known for about four years. The other man was Frederick Arrington and the victim stated he had known him for about one year. After cashing a check, Cooperwood noticed that the two men were following him. The complaining witness testified that the defendant Arrington hit him in the face with a brick and defendant Larry took his money, which amounted to $38. When Cooperwood yelled for help, he was hit in the mouth by one of the two men, loosening his teeth, and was choked. The victim was taken to a hospital by the police and there received six stitches in his face. Cooperwood stated that on June 12, 1967, the police came to his place of employment, drove him to the corner of Lake Street and Kedzie, and he pointed out the defendants who were subsequently placed under arrest.

On cross-examination Cooperwood stated that he gave the police the name of one of his assailants (Louis Larry) and a description of the other (Frederick Arrington) when he was taken to the hospital shortly after the incident in question. Again, on May 30, 1967, the complaining witness testified he saw the police and gave them the same information. He further testified that he saw the two defendants standing in an alley every morning on his way to work until June 12, when he pointed them out to the police.

James Burns, a police officer assigned to the case, testified that he attempted to contact the victim on June 1 and on several other days, but was unsuccessful until June 12. Officer Burns stated that on June 12 he and the complaining witness rode through the neighborhood and Cooperwood pointed out the defendants. On cross-examination the officer said that he was not one of the officers who responded to the initial call of the victim.

The defendant, Louis Larry, was the sole witness for the defense. He testified that he was employed at a car wash on May 29, 1967, and that he saw the complaining witness while he was on his way to take the elevated train to work. He stated that he worked until 2:00 p. m. on that day. He denied committing the robbery. Larry said that he saw Cooperwood every morning on his way to work.

The defendants contend that the time lapse between the alleged robbery and the subsequent identification and arrest of the defendants thirteen days later renders the identification vague and doubtful. The defendants further urge that although the victim admittedly saw the defendants every day after the robbery, he made no effort to contact the police. It appears to us, however, that these factors do not speak to the validity of the identification so much as they question the credibility of the complaining witness, since it is undisputed that the victim knew both of the defendants before the robbery.

The defendants cite the cases of People v. Cullotta, 32 Ill2d 502, 207 NE2d 444; People v. Ikerd, 26 Ill2d 573, 188 NE2d 12; and People v. Martin, 95 Ill App2d 457, 238 NE2d 205 in support of the proposition that a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful and uncertain. The defendants also cite People v. Boney, 28 Ill2d 505, 192 NE2d 920 and People v. Capon, 23 Ill2d 254, 178 NE2d 296, which suggest that a lapse in time between the crime and the identification goes toward the weight of the evidence. In all five of the defendants’ cases, unlike the case at bar, the identifying witnesses had never seen the defendants before the incident in question. Furthermore, in all five cases the inquiry of the court was to the sufficiency of the identification, not the credibility of the identifying witnesses. In the instant case, however, it is admitted that Cooperwood knew one of the defendants for one year and knew the other defendant for four years. The only question in the present case is whether the identifying witness was credible and thus, the cases that the defendants cite concerning the sufficiency of an identification are not applicable.

The record discloses that the trial judge squarely met the question of the credibility of the prosecuting witness. Before finding the defendants guilty the court commented:

I could detect nothing in the demeanor of the complaining witness to indicate any vindictiveness or any other motive other than one of telling the truth. I believe to find the defendants not guilty I would have to so find there was some sinister motive on behalf of the complaining witness. I can certainly see none.

Defendants maintain that the situation in the case at bar is analogous to People v. Roe, 63 111 App2d 452, 211 NE2d 552. In Roe the victim had seen the defendant three or more times and was introduced to him before the robbery. When questioned by an investigating officer two days after the incident, the victim did not name Roe or any of his assailants although he knew their names. Neither did the victim give any descriptions of his assailants. In the instant case, however, the victim gave a description of the two men to the police when they interviewed him at the hospital and named Louis Larry. This we feel is sufficient to distinguish the case before us from Roe.

We find no merit to the contention that there were inconsistencies in the complainant’s testimony affecting the identification of the perpetrators of the robbery and establishing a reasonable doubt as to the defendants’ guilt. A review of the record discloses the contrary. We have consistently held that it is the function of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony, and where the evidence is merely conflicting, this court will not substitute its judgment for that of the trier of the fact. People v. Scott, 34 Ill2d 41, 213 NE2d 521.

For the above-mentioned reasons, the judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Paul E. Perschke, Plaintiff, v. Westinghouse Electric Corporation, et al., Defendants. Gust K. Newberg Construction Company, Third-Party Plaintiff-Appellant, v. American Bridge Division, United States Steel Corporation, Third-Party Defendant-Appellee.
    Gen. No. 53,248.
    First District.
    June 6,1969.
    Menk, Johnson, Ryan & Bishop, of Chicago (John Cadwalader Menk, of counsel), for appellants.

      Harlan L. Hackbert, of Chicago (Hackbert, Rooks, Pitts, Fullagar and Poust, of counsel), for appellee.
   ALLOY, J.

The cause before us originated as an action under the Structural Work Act (1967 Ill Rev Stats, c 48, §§ 60-69) which was instituted as against Westinghouse Electric Corporation (hereinafter called ‘‘Westinghouse’’) and Gust K. Newberg Construction Company (hereinafter called “Newberg”). Westinghouse was the elevator subcontractor and Newberg was the general contractor in the construction of the Chicago Civic Center. In the same action, Newberg and Westinghouse filed third-party complaints against United States Steel Corporation, American Bridge Division (hereinafter called “Steel”). The action was instituted by Paul E. Perschke, an employee of Steel. Newberg filed a counterclaim as against Westinghouse seeking indemnity on an “active-passive” negligence theory with an express indemnity under provisions of the Westinghouse subcontract. Newberg also filed an amended third-party complaint as against Steel. At the close of the evidence of each defendant and the third-party plaintiff, Steel moved for directed verdicts and judgments in its favor and those motions were granted and judgments were entered in favor of Steel and as against Newberg and Westinghouse. The evidence in the case disclosed that certain planks had been placed by Westinghouse and these were construed as “scaffolds” within the act, and that both Newberg and Westinghouse were found to have been in “charge of” such work. The jury returned a verdict of $812,000 as against Newberg and Westinghouse and judgment was entered upon such verdict.

The record discloses that a site was acquired for a new courthouse in Chicago by the Chicago Building Commission. Prior to awarding the general contract for construction of the new court building, the Commission entered into a contract on April 25, 1963, with the American Bridge Division of United States Steel Corporation to furnish and erect the structural steel for the building. This contract was described as “Contract No. 3.” It contained the following provisions which are pertinent to the issues involved in the case before us:

“This contract may be assigned by the Commission to the Commission’s general contractor when and as selected. This contract may not be assigned by the contractor.”
“The undersigned the contractor awarded the contract No. 3 by the Public Building Commission of Chicago hereby consents to such assignment thereof as said commission may at anytime hereafter make. This consent is and shall be irrevocable.”
“The contractor shall indemnify and save harmless the commission, its commissioners, its respective officers, agents and employees including the commission’s architects, engineers, individually and collectively from all claims, demands, actions and the like of every nature and description made or alleged to arise out of the work under this contract. In the event of any injury (including death), loss or damage (or claim or claims thereof), the contract shall give immediate notice to the owner and architect.”

After this contract had been entered into between the Commission and Steel, the Commission awarded the general contract for construction of the court building to Gust K. Newberg Construction Company, and the Commission assigned its Contract No. 3 with Steel to New-berg. The assignment expressly provided as follows:

“The Public Building Commission of Chicago hereby assigns to Gust K. Newberg Construction Company the general contractor for the Civic Center the above and foregoing Contract No. 3. This assignment shall be effective as of the date of the acceptance hereof.”

Newberg accepted the assignment. It is noted that Steel had consented to the assignment irrevocably prior to such time.

Paul Perschke, plaintiff, an ironworker, who was employed by Steel, fell and was seriously injured on June 18, 1964. He received Workmen’s Compensation from Steel. Perschke thereafter sued Newberg and Westinghouse Electric, as indicated herein, and Newberg filed a third-party complaint against Steel seeking indemnity from Steel under the provisions of written Contract No. 3 between Steel and the Public Building Commission, which contract had been assigned to Newberg.

The award of $812,000 referred to was appealed from, but, so far as the record is concerned, the appeal was discontinued by the appellants. The only issue before us involves the third-party complaint filed as against Steel by Newberg. At the hearing of this cause, the court considered the indemnity claim of Newberg as against Steel and indicated a belief that the written construction Contract No. 3 established a valid claim in favor of Newberg as against Steel for indemnity. The trial court, however, also found that Newberg had released his right to indemnity under the provisions of a written release between Newberg and Steel dated May 10, 1967. This release recited the circumstances surrounding the assignment to Newberg of Steel’s contract and recited that Steel owed Newberg $150,000 for work Newberg did for Steel. The release also recited that the amount due Steel was reduced by $125,000 “because of two accidents which occurred during the erection of Structural Steel and Architectural Exposed Steel — the first on January 23, 1964, the second on February 12, 1964.” Neither of the accidents referred to were the Perschke accident, and both of the accidents involved damage caused to the building by acts of Steel without any resulting personal injuries. The release then specifically recited:

“IT IS FURTHER UNDERSTOOD AND AGREED that in consideration of the release of NEWBERG by AMERICAN BRIDGE of any liability or claim against NEWBERG arising out of the Chicago Civic Center Project, NEWBERG does hereby release AMERICAN BRIDGE from any and all claims or demands of any kind or character whatsoever that NEWBERG may have against AMERICAN BRIDGE which arise out of Civic Center Contract No. 3 and Civic Center Contract No. 4 and will indemnify and save harmless AMERICAN BRIDGE from any and all claims and demands of any kind or character including, but not limited to, penalties, delays, direct, indirect and consequential damages which have been made, may be made, or may be pending against AMERICAN BRIDGE by NEWBERG’S agents, servants, employees, representatives, subcontractors, materialmen and the Public Building Commission of Chicago, Illinois, its Architects and any and all insurance companies, bonding companies and sureties which may arise out of the Chicago Civic Center Project.”

The trial court thereupon refused to allow the claim of Newberg under the third-party complaint and, also, refused to permit any testimony with respect to any negotiations or discussions preceding the execution of the written release.

The principal issue before us is whether the release referred to is a bar to the asserted right of indemnity by Newberg as against Steel. In connection with the determination of such issues, it is also necessary to determine whether extrinsic evidence should have been admissible to vary or limit the terms of such release. A further issue remains as to whether the trial court correctly determined that Newberg was entitled to indemnity under the terms of Contract No. 3, in absence of the written release of such obligation.

As a preliminary matter, appellee Steel asserts that the report of proceedings in this appeal which was presented for filing and approval and was not filed and approved within the provisions of Supreme Court Rule 323(b) and (e) with respect to notice of and time for filing and approval of such report of proceedings. The chief point for consideration here involved an order which the trial court entered on May 24, 1968, extending the time for approval in filing the report of proceedings. A motion for extension was filed by Newberg and notice was given to all parties except Steel. This was apparently an oversight by Newberg. Steel contends that the omission makes the entire appeal invalid. This Court has already determined that the motion to dismiss by reason of such matters relating to filing and approval of the report of proceedings should be denied, on the ground that the failure to give such notice was an oversight, and, also, that there was no prejudice resulting therefrom. Under the circumstances we see no reason to change the conclusion heretofore announced by this Court, and such motion to dismiss the appeal, now again made by appellee, is herewith denied.

The fundamental issue here is whether the trial court correctly construed the release of May 10, 1967, in concluding that any rights which Newberg had to indemnity from Steel were extinguished or terminated by such release. It is contended on appeal by Newberg that the general language of the release was by the terms of the release limited to certain specific items which appear in the wording of the release. Newberg contends that the release covered only questions of cross-claims for charges and materials and two designated claims for damages to the building by Steel during construction. In connection with this argument, Newberg refers to the contract to show that $1,073,982.25 was owed to Steel and from this was deducted $150,000 for back charges (covering work that Newberg did for Steel) and also $125,000 for two instances of damage to the building by Steel. Subtracting this total of $275,000 from the $1,073,982.25 resulted in a figure of $798,982.85 which was the net consideration recited in the agreement. Newberg, therefore, argues that these items of back charges and the two specific accidents were the only matters covered by the release.

On appeal in this Court, Newberg emphasizes the language of Todd v. Mitchell, 168 Ill 199, 204, 48 NE 35:

“The general words of release will be restrained in effect by the recitals contained in the instrument, as applied to the subject matter, . . . and this is true at law as well as in equity, . . . .”

We note, however, that the release in the case before us does not come within the rule quoted from in the Todd case. In the release of May 10, 1967, there is clear wording and intention by the parties that the release is to be a general release of all claims and rights between Steel and Newberg in connection with the Civic Center construction job. The fact that the release recited how the net consideration of $798,982.25 was computed by showing certain deductions, did not in any manner operate to limit the release to the several items totaling $275,000. The release on its face shows it to be a full and complete release of all claims between the parties. Newberg was the general contractor and the subcontract between Steel and the Commission had been assigned to Newberg by the Commission. It is clear from the language of the release that in finishing up the outstanding payments due Steel as a result of the construction, the payment of May 10, 1967, was entered into by Steel and Newberg clearly to settle all questions of any claims as between the two parties (with certain specific exceptions). If any question had arisen as to any amount that Steel owed New-berg, Newberg could have held this back from Steel or requested a recital excluding such claim in the general mutual release agreement. The claim of Perschke as against Newberg was known to both of the parties on May 10,1967, when the release was signed, and it is clear that Newberg was, therefore, not releasing something about which he had no knowledge as was true in some of the cases cited by appellant.

In Todd v. Mitchell, supra, the court limited the effect of a general release so that it would not cover a matter about which the releasing party knew nothing at the time the release was signed. This was an appropriate interpretation of such release, since, to extend it would have included a transaction entirely different from the one clearly contemplated by the wording of the release. In Bassett v. Lawrence, 193 Ill 494, 61 NE 1098, cited by appellant, the parties entered into an agreement cancelling a prior contract and adjusting an indebtedness growing out of the prior contract. When one of the parties sued the other on a note arising out of an entirely separate transaction from the prior contract, the remaining party claimed that the wording of the general release had released liability under the note. The court limited the general words of the release to a release of the obligations under the prior contract only. This is not the situation in the case before us. If Newberg attempted to sue Steel for something arising out of a separate construction job, which had no relationship to the Civic Center project, the release could obviously not be asserted by Steel as a defense in that type of case. This would be similar to the Bassett case. In the case before us, the release involves only the Civic Center construction and was clearly designed to settle all matters between Steel and Newberg with respect to such construction.

In Kerr v. Schrempp, 325 Ill App 614, 60 NE2d 636 (cited by appellant), a situation similar to that in the Bassett case existed. In the Kerr case, a bank released the maker of a specific obligation and the person released argued that the general language of the release also released him as joint maker on a completely different note which the bank was not in any manner authorized to release. The court properly limited the general wording of the release to the one transaction to which it was clearly made to apply.

A case illustrating the effect of a general release is Cwik v. Condre, 4 Ill App2d 380, 124 NE2d 612, where a widow had sued for damages for wrongful death of her husband. The action was by the widow as administratrix and a release for the amount awarded was given in open court and signed by the widow both as administratrix and as a widow. The widow then sued for injuries to herself individually, and defendant contended that the release signed at the conclusion of the former case was a bar. The court refused to limit the release to the claim for damages by reason of the death of the husband, but construed it also to be a release by the widow of her claim for injuries to herself. The general wording of the release which recited that it was applicable to the “accident which occurred on or about the 13th day of April 1946,” was not limited to the wrongful death claim. The court in reading the various terms of the release concluded that a general release of all claims arising out of the particular accident was intended. Similarly, in the case before us, there would be no basis for limiting the effect of the release only to those matters specifically mentioned.

A leading case determining the issues which relate to the effect of the release is Rosenberg, Inc. v. Carson Pirie Scott & Co., 28 Ill2d 573, 192 NE2d 823. In that case, Lakeview Cemetery and McGrath Sand and Gravel Company had entered into an agreement for exchange of land. The contract provided that the sand and gravel company had an option to purchase certain lots and leave the cemetery company lateral support for its land. The agreement also provided that the sand and gravel company would not sell any land to another cemetery association. The agreement, likewise, provided that if the sand and gravel company sold any of the land, the cemetery company “shall have the first refusal in case of a sale of any property in this paragraph described.” The gravel company sold land to another cemetery association and a dispute arose between the cemetery company and the sand and gravel company. The cemetery company assigned all its rights under its contract to Rosenberg. A settlement was then agreed upon between Mc-Grath Sand and Gravel Company and Rosenberg, and a release was signed by both parties which provided for a release of “any and all claims which have, in the past, arisen or may, in the future arise, or in any way grow out of any alleged breach or breaches by the McGrath Sand and Gravel Company, a corporation, of a certain contract entered into between Lakeview. . . .” The release provided that it excepted from the release the provisions in the original contract that McGrath Sand and Gravel Company would include in any deed conveying the land, a provision prohibiting use of the land for cemetery purposes. There was also a provision that the agreement for lateral support was still to continue in spite of the release.

After this release had been executed, McGrath Sand and Gravel Company sold some of the land and did not give Rosenberg (Lakeview’s assignee) the right of first refusal. Rosenberg then filed its action and, in such action, the sand and gravel company contended that Rosenberg’s right of first refusal was extinguished by the general release. The court concluded that the general terms of the release extinguished the first right of refusal. The court in referring to the general release stated (at page 578) “it specifically released and discharged all claims, past or future, arising out of the contract, with the exception of the two provisions expressly excluded from the operation of the release.” Even though the general release did not make any reference to the right of refusal, the court held that such right was extinguished under the wording of the general release. Similarly, in the case before us, even though the general release made no reference to indemnity for the Perschke claim, the release operated, effectively, to discharge such obligation. The court concluded that the release in the Rosenberg case was designed to settle all matters between the parties in regard to a prior agreement involving certain property. The release in the case before us was clearly and expressly designed to release all claims between Steel and Newberg with respect to the Civic Center job, including any that were not specifically mentioned. The clear wording of the written terms of the contract and the obvious intent of the parties, indicates that the trial court was correct in applying the release as a bar to any indemnity rights of Newberg.

On appeal in this Court, Newberg has also contended that there was at least an ambiguity in the written contract which should permit the court to hear parol evidence to show the negotiations of the parties surrounding the May 10, 1967, release. The provisions of the May 10, 1967, release were clear and the trial court correctly refused to look beyond the written terms of such release. The fact that the indemnity for the Perschke claim was not “talked about” as asserted by appellant, would not operate to limit the effect of the general release (Rosenberg, Inc. v. Carson Pirie Scott & Co., 28 Ill2d 573, 579,192 NE2d 823).

The only remaining issue is whether the trial court was correct in concluding that Newberg would have been entitled to indemnity as an assignee of Contract No. 3 between the Commission and Steel. In view of our conclusion in this case, it is not necessary that we determine this issue. We do not, however, desire that this opinion be construed as affirming the determination of the trial court in this respect. It is not necessary that this court express any opinion on such issue, in view of our determination that the release effectively barred any claim of Newberg as herein stated. The order of the Circuit Court granting the motion of Steel and directing judgment in favor of Steel was obviously proper.

The judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


text:
    Phillip Algozino, Plaintiff-Appellee, v. Police Board of the City of Chicago, Illinois, and James B. Conlisk, Jr., Superintendent of Police of the City of Chicago, and O. W. Wilson, Defendants-Appellants.
    Gen. No. 53,309. (Abstract of Decision.)
    First District, First Division.
    June 6,1969.
    Raymond F. Simon, Corporation Counsel of the City of Chicago (Marvin E. Aspen and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellants; No brief filed for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    Vera Bergman, Plaintiff-Appellant, v. Charles Hedges, Defendant-Appellee.
    Gen. No. 53,435.
    First District, First Division.
    June 6,1969.

      Paul I. Fleming and Paul R. Stansell, of Chicago, for appellant.
    Theodore R. Postel and Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Donald J. Duffy, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action arising out of an automobile collision. A jury returned a verdict for the defendant on which the court entered judgment. Plaintiff appeals from the denial of her motion for judgment notwithstanding the verdict or for a new trial.

The issues presented for review are: (a) whether or not the court erred in allowing counsel for plaintiff to withdraw; (b) whether or not the court abused its discretion by assigning the matter for trial; and (c) whether or not the jury’s verdict was against a clear preponderance of the evidence.

On March 4, 1960, at about 8:00 a. m., plaintiff was operating an automobile in an easterly direction on Dempster Avenue. Defendant was driving in the same lane and behind her. A car in front of plaintiff stopped suddenly. Plaintiff applied her brakes but hit a patch of ice, turned 180° and came to a stop in the same lane in which she had been traveling but facing the opposite direction. Defendant attempted to stop by applying his brakes but slid on the ice and the front of his car collided with the front of plaintiff’s car. Plaintiff suffered head and neck injuries.

Plaintiff’s suit was filed on February 27, 1962. On December 6, 1967, when, as plaintiff asserts, trial was imminent, and over “plaintiff’s objection,” the trial court permitted plaintiff’s attorney to withdraw from the case and gave plaintiff thirty days to obtain new counsel. On December 28, 1967, Theodore R. Postel entered his appearance for plaintiff. At that time the trial court denied the request of plaintiff’s counsel to set the matter for trial in May 1968 and placed the matter “below the black line for trial call on the 2nd day of February 1968.” The trial began on February 15, 1968, and the jury returned a verdict in favor of defendant.

Considered first is plaintiff’s contention that it was error for the trial court to permit the withdrawal of counsel for plaintiff without proper notice and when trial was imminent. Plaintiff states that the attorney had filed plaintiff’s action in 1962, and he had conducted all of the discovery proceedings. Plaintiff argues that the “allowance of withdrawal was prejudicial to the substantial rights of the Plaintiff, in that it required her to find a new attorney, on short notice, who would necessarily be totally unfamiliar with the case, would have only such discovery as the withdrawn attorney had accomplished, and would be precluded from doing further discovery by the imminence of the trial.” Plaintiff further asserts that the withdrawal was in violation of Rule 1.4(B) and Rule 2.1(D) of the Rules of the Circuit Court of Cook County.

We think the guidelines to be used here on the question of withdrawal of counsel are set forth in Wainwright v. McDonough, 290 Ill App 50, 52, 7 NE2d 915 (1937):

“No attorney or solicitor can withdraw his name, after he has once entered it on the record, without leave of the court. . . . The relation of attorney and client is one which either party may terminate prior to the conclusion of the litigation, but an attorney cannot alone and of himself terminate the relation, to his client’s injury, and without the client’s consent, except upon giving to the client a reasonable notice in order that the latter may be afforded an opportunity to procure other counsel. . . . While the relationship may be terminated as between the attorney and client, yet an attorney seeking to withdraw as an attorney of record should make known to the court, and by proper application thereto, have the relation formally terminated. . . .
“Whether the notice of withdrawal given by the attorney to his client is reasonable is to be determined from the circumstances in the particular case.”

The question here as to whether the notice of withdrawal given to plaintiff was improper or violated the rules of the Circuit Court was primarily for the determination of the trial court with the use of sound discretion. The notice was sufficient to cause plaintiff to appear in court at the hearing, where she objected to the withdrawal. Plaintiff was then given thirty days to obtain new counsel, which was accomplished within twenty-two days. Considering the sequence of events, we conclude that it was not an abuse of discretion and not error for the trial court to permit plaintiff’s original counsel to withdraw on December 6,1967. See, also, People v. Wolff, 19 Ill2d 318, 322,167 NE2d 197 (1960).

Plaintiff further contends that the failure of the court to allow substituted counsel adequate time to prepare resulted in a number of serious and prejudicial errors made in the presentation of plaintiff’s case. Plaintiff maintains (1) that the language of the opening statements and the closing argument given in her behalf by her attorney were highly inconsistent with plaintiff’s trial testimony and theory of the case; (2) no objections were made by plaintiff’s counsel to medical testimony which was not material to the issue of damages; and (3) during the course of the trial plaintiff’s counsel abandoned plaintiff’s theory of the case, which enabled defendant’s attorney to state in his closing argument: “It seems to me that the Plaintiff has completely abandoned her own version of how this accident happened.”

Defendant states that when Mr. Postel entered his appearance on December 28, 1967, no petition was presented in support of his motion to set the trial in May 1968, so that the reasons for that request are not before this court. Defendant points out that the case did not go to trial until February 15, 1968, which was in effect a 6-week continuance, and that “Mr. Postel’s conduct of the trial indicated that he was more than sufficiently prepared,” and “any apparent inconsistency or abandonment of plaintiff’s theory of the case came about as a result of the incredibility of the plaintiff’s testimony, especially in view of the testimony of an eyewitness called by the defendant, whose statement had been produced pursuant to Mr. Postel’s request on December 28,1967.”

After examining the report of proceedings in the light of plaintiff’s contentions, we find that the record does not demonstrate that plaintiff’s new counsel was incompetent or not prepared. If there were any errors of judgment or strategy, they did not constitute such incompetency of counsel which would warrant reversal. In People v. Washington, 41 Ill2d 16, 21, 241 NE2d 425 (1968), it is said:

“The practice of law is an art as well as a science. As no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight.”

Next considered is plaintiff’s contention that “the jury’s verdict was against a clear preponderance of the evidence.” This contention is based primarily on the issue as to the distance between the two véhicles immediately prior to the collision. The plaintiff testified that when her car came to a full stop, the defendant’s vehicle was not even in sight. Defendant testified that he was traveling 35 to 40 miles an hour, about four or five-car lengths behind the plaintiff, and when he attempted to stop he started to skid and hit plaintiff’s car at about 20 miles per hour. Prior to the collision he was unaware that there was ice on the road, and he became aware of it when he tried to stop. An occurrence witness, who testified on behalf of defendant, said: “All I saw was the car in the center lane hit the icy patch, and whoever the driver was put the brakes on and spun around . . . and came back into the eastbound traffic lane, and the car that was behind it just came up and hit it.” He testified that the car which spun around was approximately alongside of him, and defendant’s car “may have been a car length or so” behind the car which spun around. All three occurrence witnesses testified as to ice on the highway.

Defendant argues “that the jury could conclude that plaintiff herself failed to exercise ordinary care, as evidenced by the fact that she lost control of her car and turned it around, doing exactly the same thing she claims the defendant was negligent in so doing. Alternatively, the jury could conclude that while plaintiff was not contributorily negligent in doing what she did, since the defendant did exactly the same thing, he was not negligent either. Still a third possibility exists, and that is that the jury concluded that the defendant acted with reasonable care in the face of an emergency situation which suddenly and without warning confronted him. Any of these conclusions would be amply supported by the evidence, and the opposite conclusion is not clearly evident, plain and indisputable.”

In view of the conflict in the testimony as to the circumstances of the collision and the distance between the cars prior to the collision, we think this was a case for determination by a jury. The credibility of the witnesses and the weight to be given their testimony was a matter for the jury. This court cannot reverse the verdict of a jury on disputed factual testimony unless an opposite conclusion is clearly evident, plain and indisputable. “A court of review must take into consideration not only the verdict of the jury, but also the fact that the trial judge who saw and heard the witnesses and argument of plaintiff’s attorney denied the plaintiff’s post-trial motions.” (Pozdro v. Dynowski, 83 Ill App2d 79, 226 NE2d 377 (1967).) We find that the verdict for the defendant was not against the manifest weight of the evidence.

For the reasons given, we conclude that the trial court properly denied plaintiff’s post-trial motion for judgment notwithstanding the verdict or for a new trial, and the judgment is affirmed.

Judgment affirmed.

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


text:
    In the Matter of the Estate of John Tolash, Deceased. John Jerome Tolash, Petitioner-Appellant, v. Deco Porcelain, Incorporated, Fidelity and Deposit Company of Maryland and Continental Casualty Company as Sureties, Law Firm of Gordon and Reicin, Respondents-Appellees.
    Gen. No. 53,448. (Abstract of Decision.)
    First District, First Division.
    June 6,1969.
    Biley and Carlson of Chicago, for appellant; Gordon and Beicin, of Chicago, for appellees.
   Opinion by MB. JUSTICE BUBMAN. Not to be published in full.


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Appellee, v. John Kueper, Appellant.
    Gen. No. 68-108.
    Fifth District.
    June 9,1969.

      J. Waldo Ackerman, of Springfield, for appellant.
    Peyton Berbling, State’s Attorney of Alexander County, of Cairo, for appellee.
   EBERSPACHER, J.

Defendant’s employer applied to, and received from, the Division of Highways, a permit to transport over certain Illinois highways an overweight vehicle of a total weight of 88,000 pounds with a weight of not to exceed 48,000 pounds on the rear axle. The limitation on axle loads is provided by the Uniform Act Regulating Traffic, (c 95%, §§98 through 239 Ill Rev Stats 1965), and by the provision of section 131 of the Act, the maximum weight on the rear axle was limited to 32,000 pounds. The permit was issued pursuant to the authority given the Department of Public Works and Buildings, of which the Division of Highways is a division, by section 133 of the Act.

On April 25, 1967, defendant was charged with operating the truck of his employer in violation of the permit, contrary to the penalty provision of section 133(g) to which charge he pled guilty and the minimum fine of $10 was imposed upon him. He was also charged with operating the truck overweight in violation of the 32,000 pound rear tandem axle limitation imposed by section 131; on this charge he was tried before the court, found guilty and fined pursuant to section 132.01 of the Act in the amount of $2,308 on the basis of the rear tandem axle load being 23,080 pounds in excess of the 32,000 limitation, on the theory that the rear tandem axle load of 55,080 pounds exceeded the 48,000 pounds permitted by the permit, and that by the terms of the permit, as well as the regulations, noncompliance with the weight limitation of the permit, rendered all provisions of the permit null and void, with the same result as if no permit had been issued. On the face of the permit it is stated, “VOID IF LIMITATIONS STATED HEREIN ARE EXCEEDED,” and Permit Regulations for Oversize and Overweight Movements, dated July 1, 1962 provided, in section 3-501 (7):

“Non-Compliance with weight limitations, dimensions, routing, or other provisions specifically stated in a permit will render all provisions of the permit NULL AND VOID. The effect will be the same as though no permit had been issued and the general provisions of the Uniform Act Regulating Traffic on Highways governs. A permit issued on the basis of incorrect or false information stated upon an application will also render the permit void.”

Paragraph 10 of the General Provisions, contained in the Permit Regulations for Oversize and Overweight Movements (page 102) provides :

“This permit shall be void in the event the dimensions or weights of the vehicle and load, as operated, exceeds the dimensions or weight limits allowed by the permit. Provisions of the Uniform Act Regulating Traffic on Highways shall then apply.”

Defendant filed his appeal from the judgment imposing the $2,308 fine in the Supreme Court on the theory that a rule or regulation of the Department, making an overweight permit void ab initio upon its violation, cannot be sustained constitutionally. That Court found that it had no jurisdiction on direct appeal, that no substantial constitutional question was involved, and transferred the appeal to this Court. Defendant prays that the fine be corrected by reduction to $708, being 10 cents per pound on the excess over 48,000 pounds, the permit limitation.

One of the legal questions presented is whether, the defendant having paid the fine for violation of the permit assessed under section 133(g) of the Act, can be prosecuted for violation of the weight limitations as set forth in section 131 and the penalty prescribed by section 132.01 for violation of section 131, imposed upon him. If the 133 (g) prosecution bars the prosecution under section 131, we would reverse outright the judgment imposing the $2,308 fine, and would need not consider, the other legal question presented, i. e., whether the Department had the authority to promulgate and enforce the permit regulation (section 3-501(7)) hereinabove set forth and hereafter referred to as Rule 7.

With regard to the first question, defendant suggests that since section 133 of the Act makes provision for the violation of a permit issued pursuant to that section, and that such provisions are exclusive, and that there is no authority for the imposition of any other penalty, and therefore prosecution under section 131 is barred. The Act in two entirely different sections, provides penalties for violation of two distinct acts, one (section 132.01) violation of the weight limitations upon vehicles operating over the highways, and the other (section 133(g)) violation of a permit for overweight. The last paragraph of section 133 provides that “Penalties for violation of this section shall be in addition to any penalties imposed for violation of other sections of this Act.” Obviously by enactment of that paragraph, the Legislature did not intend prosecution, under section 133 to bar prosecution under section 132.01, and we so hold.

Defendant contends that the rule making power of the Department is not sufficiently broad as to authorize it to adopt a rule which in effect states that if an overweight permit is violated it is void ab initio. He further contends that even if it is determined that the Legislature intended to grant the Department the power to provide for the avoidance of the permit ab initio upon violation, then such attempted delegation would fail because adequate standards have not been set down in the Statute to guide the Department in the exercise of discretion.

The rule making power of the Department relating to overweight permits is found in section 133 (c) of the Act. It provides:

“The Department or local authority is authorized to issue or withhold such permit at its discretion; or, if such permit is issued at its discretion to prescribe the route or routes to be traveled, to limit the number of trips, to establish seasonal or other time limitations within which the vehicles described may be operated on the highways indicated, or otherwise to limit or prescribe conditions of operation of such vehicle or vehicles, when necessary to assure against undue damage to the road foundations, surfaces, or structures, and may require such undertaking or other security as may be deemed necessary to compensate for any injury to any roadway or road structure.” (Emphasis supplied.)

The applicable general rule is found stated in Illinois Law and Practice with citations to the supporting cases:

“Under the authority vested in them by the General Assembly, administrative agencies have the power to make or adopt rules or regulations as to matters coming within their province in order to carry out the duties imposed on them by law. However, the rules or regulations promulgated by an administrative agency must be in accordance with the statutory authority vested in such agency, and they must also be reasonable, and not arbitrary or in contravention of express statutory provision.
“An administrative agency cannot, by its rules or regulations, extend the substantive provisions of a legislative enactment, nor can it create substantive rights thereby.” 1 ILP, Adm Law & Prac, § 24.

The case of Hayes Freight Lines, Inc. v. Castle, 2 Ill2d 58, 117 NE2d 106, is a case involving violation of the weight limitations for vehicles. There the license of Hayes was about to be suspended for a period of 90 days for overweight violations. The court in that case, 2 Ill 2d 62,117 NE2d 110, said:

“The General Assembly is not required to establish an absolute criterion for the revocation of this privilege. It may concern itself with the quality of the conduct which is the basis of revocation. It might express that concern by attempting to enumerate all the conditions of weather, roads, and loads, and the myriad of transitory circumstances peculiar to the business of the offending carrier or to the offense which might be relevant by way of excuse or justification. But no constitutional provision requires it to do so as long as intelligible standards are established to be applied by the agency to which the determination is committed.
“While the standards here fixed are expressed in general terms, they deal unmistakably with the quality of the conduct which is made the basis of suspension of the privilege.”

The case of People v. Warren, 11 Ill2d 420, 143 NE2d 28, approves the rule as laid down in Hayes, supra, and discussing the matter of delegation of authority to administrative officials, adopted their earlier language from City of Evanston v. Wagar, 364 Ill 198, 204, and said:

“It is true that while a legislative body cannot divest itself of its proper function of determining what the law shall be, it may nevertheless authorize others to do those things which it might properly, but cannot understandingly or advantageously do itself. . . . This doctrine is sound and has been adhered to for many years, for the obvious reason that government could not be carried on if nothing were left to the judgment and discretion of administrative officers. ... A clear distinction exists, however, between the power to legislate — and the power to administer or regulate its exercise, once granted. The true distinction is between a delegation of power to make the laws, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made. 1 Sutherland on Stat Const2d, p 148.
“The constitution does not require the General Assembly to establish all-embracing absolute criteria whereby every detail and circumstance necessary in the enforcement of the law is anticipated; intelligible standards to guide the agency charged with the enforcement are sufficient. Hayes Freight Lines, Inc. v. Castle, 2 Ill2d 58, 65.”

The case of People ex rel. Colletti v. Pate, 31 Ill2d 354, 201 NE2d 390, involved the delegation of authority to the Department of Public Safety. There the Legislature had delegated to the Department of Public Safety the authority to prescribe reasonable rules and regulations for the dimunition of sentences on account of good conduct of persons confined in penal institutions. No schedule of good-time credits was furnished. After holding the delegation of authority valid, the Court said:

“It would be inconsistent for us to say that the legislature may delegate the duty to prescribe a schedule of credits for good-time and hold that the delegation was ineffective because the legislature did not fix a maximum and minimum schedule. We would be forcing the legislature to perform the duty which we held above may be validly delegated and which the Department of Public Safety is undoubtedly better qualified to perform. Under such circumstances we believe that the statutory standards, although minimal, were intelligible and sufficient to guide the Department of Public Safety in the performance of its duty to prescribe rules and regulations for the dimunition of sentence on account of good conduct.”

That case was in the field of criminal law where great exactitude is required; though the standards were minimal, the Court held them sufficient, and went on to point out:

“An administrative regulation, like a statute, enjoys a presumption of validity and that presumption is not rebutted by showing that petitioner and others in a like situation are adversely affected thereby.”

Defendant has taken the position that by the adoption of Rule 7, the Department had added to the penalty provided by section 133 (g) by making mandatory a fine for an overweight violation under section 132.01 which does not take into consideration the permit. On such theory he contends that Rule 7 violates the rule that a statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder, as stated in Ruby Chevrolet, Inc. v. Department of Revenue, 6 Ill2d 147, 126 NE2d 617. The regulation does not add to the penalty for violation of an overweight permit under 133(g), but merely permits the imposition of the statutory penalty provided by section 132.01, in the same manner as if no permit had ever been issued.

His additional theory seems to be that since the Legislature enacted a statute defining civil liability of persons damaging the highways or structures by transporting weights in excess of those allowed by the Act and providing a civil action to the authorities in control of such damaged highways or structures for the recovery of such damages in section 135 of the Act, that prosecution for violation of section 133(g) is exclusive and that therefore Rule 7 does not relate to the assurance against undue damage to the highway, such assurance being the statutory language in section 133 (c) supporting the Department’s power to adopt rules relating to overweight vehicles.

This record does not disclose what damage, if any, was done to the highways or structures by defendant’s violations. Neither the fine provided by section 133(g) nor that provided by section 132.01 are measured in the amount of damages a violator does to the highway. We can conceive of, and feel certain that the Legislature likewise could conceive of, many instances in which the damages to the highway or highway structure by an overweight load might far exceed any fines that could be imposed under the provisions of the Act. As a result the Legislature has authorized the Department to adopt such rules, as in its discretion will assure against damage to the highway, in an attempt to make it unnecessary to proceed against a violator for civil damages. But if despite such rules, and such penalties as the Legislature has provided for violations of the Act, persons do violate and do damage to the highways it was the Legislative intent that there be power to recover under section 135, the cost of repair or replacement.

We believe that Rule 7 providing that an overweight permit becomes null and void when not complied with, is a prescription of a condition of operation which assures in most cases that there will be no undue damage to the road foundations, surfaces or structures. The Legislature in the language of section 133(c) gave the Department authority to prescribe such a “condition of operation” to prevent damage and to render unnecessary in most cases resort to recovery under section 135.

We therefore hold that Rule 7 is a reasonable regulation, in accordance with the statutory authority vested in the Department, that it is neither arbitrary nor in contravention of any express statutory provision and that it is adequately related to the purpose of the Act and to the purposes of section 133 of the Act; and affirm the judgment of the Circuit Court of Alexander County.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       Under the provisions of section 132.01 of the Act, either the owner or driver or both, are subject to prosecution. Under section 133(g) of the Act, either the person to whom the permit was issued, or the driver or both, may be prosecuted.

       Appellant in his brief prays in this Court that the fine be reduced, rather than for outright reversal.


author: MR. PRESIDING JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William A. Lynch, Defendant-Appellant.
    Gen. No. 52,672.
    First District, Second Division.
    June 10,1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The defendant, William A. Lynch, was indicted for armed robbery. In a jury trial, he was convicted of robbery. After his oral post-trial motions were denied, judgment was entered. Following a hearing in aggravation and mitigation, the defendant was sentenced to nine to fifteen years in the State Penitentiary. He appeals.

This case involves a robbery which occurred in an IGA store located at 6407 West 79th Street in Oak Lawn, Illinois. It is undisputed that the crime occurred at approximately 7:45 p. m. on October 28, 1966, when there were no customers present. About $250 was taken from the cash register. The money taken by the sole robber included currency and change. All the change was wrapped in regular quarter, dime, nickel and penny bank rolls, which had the name “Cherut, by Harris Trust & Savings Bank” stamped on them. Five rolls of change were taken. This was the testimony of Mrs. Joan Kolodziejek, an eyewitness to the crime and the cashier at the IGA store.

The State had marked as People’s Exhibit 1 for identification, an empty coin wrapper or roll. Mrs. Kolodziejek identified it as a wrapper for quarters. The witness went on to say that this quarter wrapper had the name “Che-rut, by Harris Trust & Savings Bank” stamped on it; it was in her cash register on October 28,1966; and it was taken by the man who committed the robbery on that date.

Mrs. Kolodziejek also observed and remembered some of the robber’s physical characteristics and his clothing. The eyewitness stated that there was dried blood about his nostrils and a cut behind his right ear with dried blood there also. In addition, the robber wore a plaid shirt, dark black or blue pants, and a dark black or blue jacket. She then identified the defendant in the courtroom as the man who had robbed the store on October 28, 1966. On that date, the store manager, Henry Easter, was also present. Both Mrs. Kolodziejek and Easter were told by the robber to walk to the rear of the store or be shot. In time, they saw that they were alone. Easter immediately called the Sheriff’s Police. About fifteen minutes later, Mrs. Kolodziejek saw the defendant again. The Sheriff’s Police had arrested him and brought him in front of the IGA store in a police car.

On cross-examination, Mrs. Kolodziejek testified that she never saw a gun during the commission of the offense. She also was never shown a photograph of the defendant at any time. This witness had never seen the defendant before and did not know that he lived in the neighborhood. She did tell the police that the robber was between 5' 7" and 5' 10" in height, and did give them a physical description shortly after the crime had occurred. Approximately fifteen minutes later, the police returned to the store and told Mrs. Kolodziejek that they had a suspect in the police car. Mr. Easter left the store first, viewed the suspect, and returned but did not speak to Mrs. Kolodziejek. She then went to the police car, looked in, and saw two men sitting in the rear seat: Officer Greene, who is a Negro and a member of the Sheriff’s Police, and the defendant, a Caucasian, whom she then and there identified as the man who had robbed the store. She went to the police station later that evening and again identified the defendant as the robber.

Continuing, Mrs. Kolodziejek stated that immediately prior to the robbery, she had run out of change. Mr. Easter then gave her one roll of quarters; one roll of nickels; a roll of dimes; and two rolls of pennies. She did not have an opportunity to open these wrappers before the robbery occurred. All the coin wrappers had stamped on them: “Cherut, by Harris Trust & Savings Bank.” The cashier explained that Cherut is a very good customer of the store and is a coin collector who picks up the store’s loose coins in exchange for wrapped or rolled coins which he apparently obtains from the bank. Mrs. Kolodziejek did not know if Cherut exchanged rolled coins with anyone other than the IGA store. Earlier on the evening of the robbery, this witness saw Cherut hand Easter, the store manager, rolls of coins. She received some of these rolls from Easter shortly before the crime occurred.

On redirect examination, Mrs. Kolodziejek stated that the store was fully illuminated at the time the crime occurred. During the robbery, the defendant did not wear a mask and was, at times, within six to twelve inches of this witness. She saw his face and was able to face him directly.

Henry Easter, the store manager, also testified for the State as an eyewitness and corroborated much of Mrs. Kolodziejek’s testimony. He also noticed that the robber had bloodstained nostrils, a laceration behind his right ear and was wearing a plaid shirt, dark blue pants, and a dark jacket. He too pointed out the defendant in the courtroom as the robber and identified People’s Exhibit 1 as the coin wrapper or roll which he had obtained from Cherut. The wrapper had Cherut’s name on it. Easter often received rolled change from Cherut in exchange for the store’s loose coins. The wrappers or rolls always had Cherut’s name on them.

On cross-examination, Easter stated that after the robbery, he gave a description of the robber to the police in which he said the culprit was 5' 6", weighed approximately 140 pounds, and had light hair. Approximately fifteen minutes later, the Sheriff’s Police returned with a suspect. Easter identified the defendant, sitting in the rear seat of the police car, as the robber. There were two Caucasians sitting in the back seat when he looked into the car and made his identification. The defendant still had blood under his nostrils. In conclusion, Easter stated that he was positive that People’s Exhibit 1 was the quarter wrapper which was taken from his store by the robber on October 28, 1966. Although Easter admitted that neither he nor Mrs. Kolodziejek placed any identifying marks of their own on the wrappers, he did say that the IGA store received its rolled or wrapped coins from no other source than Mr. Cherut, who came into the store approximately three times a week for that purpose. Easter did not know if Cherut was a coin collector or brought coins to any other stores in the area.

Officer Marvin Boykin, a member of the Cook County Sheriff’s Police, stated that on October 28, 1966, he was sent to the IGA store to investigate an armed robbery. He interviewed Mrs. Kolodziejek and Mr. Easter, received a description of the robber, and put out a radio broadcast. In concluding his testimony on direct examination, Boykin examined People’s Exhibit 1, the coin wrapper or roll, and stated he had recovered it from the Defendant’s pocket in the police station. He and Officer Greene had initialled it at that time.

On cross-examination, Officer Boykin stated that the two eyewitnesses in the store gave him a physical description of the robber and described his clothing. Boykin remained with them until the police appeared with the defendant. He then took Mrs. Kolodziejek and Mr. Easter out to view the accused and asked them if they could identify the suspect as being the robber. The defendant, a Caucasian, was sitting in the back seat of the police car with Officer Greene, a Negro. The accused was then taken to the police station where he was fingerprinted and photographed. Officer Boykin noticed there that the defendant had blood under his nose and around his right ear.

Officer Earl Greene, a patrolman with the Cook County Sheriff’s Police, testified that on October 28, 1966, while on duty in a police vehicle, he heard a description of an alleged armed robber. Shortly thereafter, he arrested a man fitting this description. The arrest was made about a block and a half from the IGA store. Officer Greene then pointed out the defendant in the courtroom as the man he arrested. At the time of the arrest, according to Greene, the defendant was wearing a dark blue jacket, a checkered shirt, and had a small scar behind his right ear in addition to dried blood on his right cheek. Later, at the police station, the defendant emptied his pockets. Greene identified People’s Exhibit 1, a coin roll or wrapper, and People’s Exhibit 2, United States currency and loose coins, as having been found on the defendant’s person in the police station.

On cross-examination, Officer Greene said that People’s Exhibit 2 contained $114 in currency and $21.10 in loose coins. The currency included four (4) $10 bills; nine (9) $5 bills; and twenty-nine (29) $1 bills. The coins taken from the accused included $11.75 in quarters; $6.30 in dimes; $2.30 in nickels; and 75 cents in pennies. The quarters were not rolled but were loose. Officer Greene stated that he had known the defendant for approximately five or six years and knew that the accused lived in the neighborhood of the robbed store. The defendant was arrested less than a block from where his parents lived. He did not attempt to flee and was not searched until later in the evening at the police station. No gun was found. He was arrested approximately ten minutes after Greene had received a police call describing the alleged armed robber. At the time of his arrest, the accused was wearing a plaid shirt, dark and light checks, according to Officer Greene. The defendant was then taken to the scene of the robbery. When they reached the IGA store, only two people were sitting in the rear seat of the police vehicle, Officer Greene and the defendant. Greene went on to say that the accused was fingerprinted and photographed at the police station. He did not have the photograph with him however.

A Ban-Lon shirt was then marked as Defense Exhibit 2 for identification. Defense counsel asked Officer Greene if the defendant was wearing this shirt when he was arrested. Greene stated that he did not recall this shirt. Defense counsel then moved, out of the presence of the jury, that the State produce the photograph taken of the defendant in the police station so that the defense could examine it and determine if the defendant was wearing a plaid shirt or Ban-Lon shirt and if the defendant was bloodied around the nose and right ear. The prosecution argued that it did not have the photograph available and that the defendant could subpoena it and introduce it into evidence as part of his case-in-chief. After the court denied the motion, defense counsel stated that he would immediately send out a subpoena.

After People’s Exhibits 1, the coin wrapper, and 2, the currency and coins, were admitted into evidence, the State rested its case. Thereafter, three witnesses testified for the defense: Lee R. Nelson and the defendant testified in person, whereas the testimony of Jack Souer was stipulated into the record. The defense was alibi and denial. Souer’s stipulated testimony was that he was with the defendant from approximately 6 p. m. to 7 p. m. on the day of the robbery. At that time, he did not notice any cuts, bruises, or blood on the defendant’s nose and face.

Lee E. Nelson testified that on the day of the robbery, he and the defendant were together in a lounge, Mr. Kay’s located at 83rd and Cicero. Nelson arrived late in the afternoon. The defendant was already present. Jack Souer was also in the lounge. While he was there, Nelson noticed that the defendant had an altercation with another man outside the lounge. The defendant reentered the lounge, but Nelson did not recall if there were any cuts or bruises on the accused’s face. He also did not remember if there was any blood on the defendant’s face. Nelson left the lounge between 8:30 and 9:00 p. m. The defendant left with him and asked for a ride to 79th Street.

On cross-examination, Nelson stated that he did not know where he had been on October 26 or October 27, 1966, the two days preceding the date of the instant crime. He knew he had met the defendant on October 28, 1966, however, because it was the first time he had seen the accused in over a year. Later, Nelson admitted that he really did not know on what date he had met the defendant. He expressed this doubt to defense counsel, who then told him that he, in fact, met the defendant in the lounge on October 28, 1966. He did see Souer in the lounge but Nelson did not independently recall the exact date of his meeting with Souer and the defendant. He believed the defendant was playing pool in the lounge with the man he was to fight later in the day. Nelson did not know if the two men were playing for drinks or for money.

The defendant testified and denied any participation in the robbery. He admitted having a fight outside Mr. Kay’s lounge on October 28, 1966, with a person with whom he had been playing pool for money, but denied having any cuts or bruises on his face or behind his ear on that date. Souer and Nelson were with him on October 28, 1966. The defendant had arrived at the lounge by himself at 10:30 a. m. and left with Nelson between 8:30 and 8:45 p. m. He was dropped off at Mike’s Lounge near the home of his parents. He did not stay but was on his way home when he was arrested by Officer Greene, whom the accused had known for about ten years. The defendant testified that he was wearing a Ban-Lon shirt, Defendant’s Exhibit 2 for identification, when he was arrested. Regarding People’s Exhibits 1 and 2, the accused stated that he received the quarter roll or wrapper from his pool-playing opponent whereas of the currency and coins in evidence, $55 was his property and $85 he had won playing pool that day. In conclusion, the defendant stated that the IGA store was two blocks from the home of his parents; that he had been in the store on many occasions; and that he was 5' 5" and weighed 165 pounds.

On cross-examination, the accused stated that he began playing pool in the lounge with an unknown stranger at 2:30 p. m. The defendant had arrived at Mr. Kay’s Lounge at 10:30 a. m. and had drunk some beers and tomato juice in the four hours before he began playing pool. For approximately an hour, the defendant and the unnamed stranger played pool for drinks. Then, at approximately 3:30 p. m., they began to play for $10 a game after the defendant had consumed six bottles of beer. By 4:30 p. m., the accused had consumed thirteen bottles of beer. He did not eat anything that day. The pool games continued until 6:30 p. m. when an altercation began between the defendant and his opponent when the latter refused to pay the accused any money. The altercation ended after the defendant was knocked down by one punch to the jaw. This was allegedly the only punch thrown in the fight. It was the defendant’s testimony that he did not get cut in his right ear nor were his nostrils bloodied. After the fight, the stranger allegedly apologized to the defendant, took the accused to the former’s car and satisfied his pool-playing debt by paying the defendant in currency and rolled or wrapped coins. The defendant testified that although he drank sixteen beers and ate nothing on October 28, 1966, he was able to win about $80 in the pool games at approximately $10 a game.

After examining People’s Exhibit 1, the coin wrapper, the accused stated that it was similar to the wrapper which the stranger had given him on October 28, 1966, and which the defendant had in his pocket when arrested. All the coins allegedly given to the defendant on that day by his opponent were in wrappers or rolls, but the accused did not know what happened to the rest of the wrappers. In conclusion, the defendant stated that his friend, Nelson, drove him from the lounge to another tavern near the accused’s house. He was dropped off between 8:30 and 8:45 p. m. and testified that he was arrested at approximately 8:45 p. m.

It was stipulated by counsel that when the defendant was examined by the medical department of the Cook County Jail on October 29, 1966, the day following the robbery, there were no cuts or abrasions on him.

In rebuttal, the State offered Samuel Rosen, Chief Clerk of the Circuit Court, Criminal Division, who was charged with the care and custody of its records. He had the accused’s records in his possession and stated that the defendant had a prior conviction for armed robbery based upon his plea of guilty.

On appeal, the defendant urges that he was not proved guilty beyond a reasonable doubt. In addition, he contends that he was denied a fair trial in that: (1) the identification procedure employed by the police prior to trial was unfairly suggestive; (2) denial of defense counsel’s right to examine a photograph of the defendant taken shortly after his arrest, which denial occurred during cross-examination of the arresting officer, was violative of due process; (3) the submission of two verdicts, each finding the defendant guilty of robbery, confused the jury and placed undue emphasis upon a guilty finding.

In his initial contention, the defendant urges that his conviction be reversed since the State failed to prove him guilty beyond a reasonable doubt in that their evidence was improbable, unconvincing and unsatisfactory. We do not agree. In People v. Tribbett, 41 Ill2d 267, 271, 242 NE 2d 249, 251 (1968), in affirming a robbery conviction, the court stated:

“. . . It has been the firm holding of this court that the testimony of a single witness, if it is positive and the witness is credible, is sufficient for a conviction even though the accused has contradicted the testimony . . . .”

In the case at bar, two eyewitnesses were able to observe the unmasked robber for a number of minutes in a fully illuminated grocery store. One eyewitness stated that at times the robber was directly facing her and was only six to twelve inches away. There was no evidence that he was wearing a hat or glasses of any sort. Both eyewitnesses told the police that the robber had' dried blood under his nostrils and around his right ear. They also described his clothing. This information was instrumental in leading to the prompt arrest of the accused within fifteen minutes after the crime had occurred and less than two blocks from the robbery scene. The arresting officer testified that, when arrested, the accused was wearing the clothing described by the eyewitnesses. Both the arresting and investigating officers also stated that the defendant had dried blood under his nostrils and around his right ear thereby corroborating the eyewitnesses on this point as well. In addition, the two eyewitnesses identified the defendant as the robber both at the scene of the crime shortly after it had occurred, and at the trial. Their testimony did not waver when submitted to vigorous cross-examination.

The credibility of the witnesses and the weight to be accorded their testimony are matters for the jury. By the return of its guilty verdict, it is apparent that the jury in this case believed the witnesses for the prosecution and attached little weight, if any, to the defendant’s attempted alibi defense which was weakened by the inability of one defense witness to remember the exact date on which he saw the defendant in the lounge and was further weakened by the accused’s own testimony that he left the lounge at 8:30 p. m. on October 28, 1966, whereas the arresting officer stated that he arrested the defendant in Oak Lawn, Illinois, at approximately 8:00 p. m.

The jury also had before it the fact that an empty quarter wrapper or roll was found on the defendant. The two eyewitnesses, due to the notation that appeared on the roll, identified it as being taken by the robber from the cash register of the IGA store. Furthermore, $21.10 in loose coins and $114 in currency were found on the person of the accused. Approximately $250, in currency and coins, was taken from the store. The jury weighed these incriminating factors along with the explanation of the defendant that he had won $85 and acquired the quarter wrapper in pool games played for $10 a game with an unnamed stranger during an afternoon in which the accused drank sixteen beers and ate nothing.

We have carefully reviewed the evidence in this case and find that the defendant was proved guilty beyond a reasonable doubt. People v. Tomaszewski, 406 Ill 346, 352-53, 94 NE2d 154, 158-59 (1950). We are not of the opinion that the conviction should be reversed because approximately $115 of the stolen money was never recovered or because the day after the crime, the defendant did not have abrasions on his face when examined at the County Jail.

The defendant also contends that the identification procedure employed by the police at the scene of the crime approximately fifteen minutes after it had occurred was so unfairly suggestive that it deprived him of a fair trial. In support of this proposition, the defendant cites Stovall v. Denno, 388 US 293, 302, 87 S Ct 1967, 1972 (1967), wherein the court stated that the confrontation between accused and identification eyewitnesses could be so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a denial of due process but such a claimed violation would depend on the totality of the circumstances surrounding the confrontation. Such a violation of constitutional rights would affect the admissibility or competency of identification evidence arising from lineups and not merely the weight of the identification evidence. Stovall v. Denno, 388 US 293, 300, 87 S Ct 1967, 1971 (1967); Simmons v. United States, 390 US 377, 382, 88 S Ct 967, 970 (1968). The defendant in this case filed and argued a pretrial motion seeking to suppress the testimony of the two identifying eyewitnesses pertaining to their identification of the accused shortly after the robbery on the ground that the method of identification in the police car confrontation violated due process. The motion was denied, and the two eyewitnesses were permitted to testify. In this appeal, the defendant renews this contention.

It should be noted that the Illinois Supreme Court in People v. Nelson, 40 Ill2d 146, 238 NE2d 378 (1968), adopted the Stovall rationale in affirming a narcotics conviction holding that the defendant was identified independently of and uninfluenced by any viewing of him at an attempted lineup. In the instant case, the accused specifically contends that the identification procedure was unnecessarily suggestive because: (1) it was a one-man showup; (2) the Caucasian suspect was sitting next to a Negro policeman in the rear seat of a police vehicle thereby allegedly suggesting to the identifying witnesses that the suspect was the man whom the police wanted them to identify; and (3) immediately prior to the confrontation, the police had told Mrs. Kolodziejek that they had a suspect in the police car.

We do not agree with these specific contentions but rather hold that, within the facts of this case, the one-man immediate showup was not violative of a fair trial. It must be remembered that the defendant was arrested less than two blocks from the robbery scene, approximately fifteen minutes after the crime had occurred, and was then returned to the IGA store where he was identified by the two eyewitnesses as a culmination of these still continuing series of events. Within the facts of this case, we see nothing unfair in the use of an immediate one-man showup or in the fact that the defendant, a Caucasian, was viewed sitting in a police car next to a Negro police officer. The police were confronted with a fast-moving situation in which they apparently sought to gain either immediate identification of the defendant as the robber at a time when the memories of the two eyewitnesses were still fresh, or, as an apparent alternative, if the accused was not so identified, they would have freed him and immediately started to look for another suspect in the neighborhood who fitted the physical description given them by the eyewitnesses.

There is testimony in the record that the two eyewitnesses viewed and identified the accused separately and not in each other’s presence. Furthermore, the police only told them that they had a “suspect” for them to view and did not say that they had arrested the man who robbed the store. Having viewed the identification evidence in the totality of the circumstances as reflected in the record, this court holds that, within the facts of this case, the one-man immediate showup was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant a fair trial.

No cases have been cited to us nor have we found any Illinois cases which are factually similar to the instant case on this point. However, for two recent cases from other jurisdictions coming to the same conclusion as we have on somewhat similar factual grounds, see Commonwealth v. Bumpus (Sup Jud Ct Mass), 238 NE2d 343, 346-47 (1968), and State v. Singleton, 253 La 18, 215 So2d 838, 842-43 (1968). Since the showup confrontation was held on a date prior to June 12, 1967, the constitutional principles emanating from the failure of defense counsel to be present at lineups or showups enunciated for the first time in United States v. Wade, 388 US 218 (1967) and Gilbert v. State of California, 388 US 263 (1967) are not to be applied to this case. See Stovall v. Denno, supra.

Thirdly, the defendant contends that he was denied due process of law when his counsel, during cross-examination of the arresting officer, was denied the right to examine a photograph of the defendant taken shortly after his arrest. It is apparent from the record that defense counsel sought this picture in an attempt to impeach the testimony of the State’s witnesses regarding the type of shirt the accused was wearing when arrested and whether he had blood around his nostrils and right ear. The two eyewitnesses testified that the robber was wearing a plaid shirt and was bloodied around the nostril and right ear. The arresting officer testified that the defendant was wearing a checkered shirt when arrested and did have dry blood on his face. The defendant contended that he was, in fact, wearing a Ban-Lon shirt and was not bloodied when arrested.

The photograph taken of the accused at the police station shortly after his arrest might have aided the defense. Defense counsel did not request this photograph until the trial was in progress. The prosecution stated that it did not have the photograph available and that the defendant could subpoena it and introduce it into evidence as part of his case-in-chief. After his motion to produce had been denied, defense counsel stated that he would immediately send out such a subpoena. No subpoena is found in this record however. Apparently, defense counsel abandoned his efforts to subpoena this photograph for reasons best known to himself. The State cannot be faulted for failing to have such a photograph in its file. It must be remembered that the trial was held approximately nine months after the picture was taken. Furthermore, defense counsel never filed a pretrial motion to produce this photograph which would have informed the prosecution, through orderly legal channels, that the defendant wished to examine it. In light of these factors, we find no merit in this contention.

Finally, the defendant urges that the submission of two verdict forms to the jury, each finding him guilty of the same charge, confused the jury, placed undue emphasis on a guilty finding, and denied him a fair jury trial. The record reveals that the jury was instructed as to the statutory definitions of both armed robbery and robbery; that it was given three forms of verdict submitted by the prosecution, one finding the defendant guilty of armed robbery, one finding him guilty of robbery, and one finding him not guilty; that defense counsel stated that he had no objection to the verdict forms; and that the court viewed the return of the signed verdict as a conviction of the lesser offense of robbery, not armed robbery. We fail to see how the accused was prejudiced by these actions. The two guilty forms of verdict, when viewed in conjunction with the instructions to the jury, did not find the defendant guilty of the same charge as urged by him in this appeal. We find no merit in this contention.

The judgment is affirmed.

• Judgment affirmed.

BURKE and McCORMICK, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edwin Dixon (Impleaded), Defendant-Appellant.
    Gen. No. 52,824. (Abstract of Decision.)
    First District, Second Division.
    June 10,1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE McCORMICK. Not to be published in full.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip Davis, Defendant-Appellant.
    Gen. No. 52,989.
    First District, Fourth Division.
    June 11,1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a sentence of two to five years in the Illinois State Penitentiary after revocation of probation. The sole contention on appeal is that the sentence is excessive.

The facts are not in dispute. On March 21, 1967, the defendant and two companions pleaded guilty to robbery. At the hearing in aggravation and mitigation it was pointed out that defendant had no criminal record, and the State recommended a sentence of one to four years. The court admitted defendant to probation for five years on condition that he serve the first 120 days in the House of Correction.

On September 27, 1967, defendant was found guilty of theft and sentenced to a term of one year in the House of Correction. The theft occurred on August 29, 1967, and involved the beating of the victim and the taking of his wallet. On the basis of that conviction and the surrounding facts, defendant’s probation was revoked and he was sentenced to a term of two to five years in the penitentiary to run concurrently with the one year sentence for theft.

At the hearing on the violation of probation defendant testified that he was married and had an eighteen-month-old daughter who lived with his wife in Kentucky; that he had been having marital problems and was under considerable emotional strain; that he had been working at Coleman Electric but had left. Just eight months before he had certified to the probation department that he was single and had no children.

Opinion

The test for determining whether a sentence is excessive was set forth by the Illinois Supreme Court in People v. Miller, 33 Ill2d 439, 211 NE2d 708, at page 444:

“Where it is contended that the sentence imposed in a particular case is excessive, though within the limits prescribed by the legislature, we will not disturb the sentence unless it clearly appears that the penalty constitutes a substantial departure from the fundamental law and its spirit and purpose, or that it is not proportioned to the nature of the offense. (People v. Smith, 14 Ill2d 95.) ”

See also People v. Taylor, 33 Ill2d 417, 424, 211 NE2d €73.

In the instant case the violation was not of a technical nature, rather it involved the commission of a crime in which violence occurred. Further, it was committed within five months after defendant was released on probation. The sentence was within the limits prescribed by the legislature. In light of these circumstances we find no reason to reduce the sentence.

Affirmed.

ENGLISH and MCNAMARA, JJ., concur.

       111 Rev Stats, 1965, c 38, § 18-1 (b):
      (b) Penalty.
      A person convicted of robbery shall be imprisoned in the penitentiary from one to 20 years.