author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Belousek (Impleaded), Defendant-Appellant.
    Gen. No. 52,356.
    First District, Third Division.
    June 5, 1969.
    Rehearing denied June 27, 1969.
    Bellows, Bellows & Magidson, of Chicago, for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James J. Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Ronald Belousek and Arthur Ellis were indicted for attempted burglary, possession of burglary tools and unlawful use of weapons. Tried jointly before a jury, they were found guilty and sentenced to the penitentiary for a term of one to five years on each count. Belousek prosecutes this appeal. He contends that he was not proved guilty beyond a reasonable doubt and that his conviction was based on illegally seized evidence.

On August 28, 1964, between 8:45 and 9:00 p. m., an Evanston, Illinois police officer, Jerome Colleran, while driving a squad car west on Davis Street observed a white over green 1956 Chevrolet occupied by two men driving west on the same street.

Davis Street is a four-lane, one-way thoroughfare. The police officer was in the first lane of traffic north of the south curbline; the Chevrolet was in the first lane of traffic south of the north curbline. The Chevrolet was stopped for a red light at Benson Street when the officer’s car approached about 25 feet to the left. It was dark outside and the officer noticed that the Chevrolet had neither headlights nor taillights on.

As soon as the light changed to green, the Chevrolet turned north onto Benson Street. Because he was in the wrong lane, Colleran could not follow it so he drove to the next street, turned north one block to Church Street and then turned east to Benson. As he arrived at the intersection of Benson and Church Streets he saw the Chevrolet emerge westbound from an alley between Davis and Church Streets. The auto made a right turn into Benson and stopped for the red light at Benson and Church. The auto’s lights were still off. Colleran, who up to this point had had the red light, observed a portion of the auto’s 1964 Illinois license plate number, LB 26. As Colleran’s stop light turned to green he drove east on Church Street and then circled around in an attempt to get behind the Chevrolet. However, when he returned to the intersection of Benson and Church the Chevrolet had disappeared. He advised his police station and the other cars in the area by radio that he had seen a 1956 Chevrolet, white over green, with two white males in the front seat driving in downtown Evanston without its lights on. He asked other cars in the area to look for it. The time of his call was between 8:50 and 9:00 p. m. '

About 10 to 15 minutes after making the call, Colleran received a radio message about an attempted burglary by two men in a light car with a dark bottom in the 900 block of Greenwood Avenue in Evanston. The Greenwood location was about six blocks south of the intersection where he last saw the Chevrolet proceeding north on Benson Street. He immediately radioed his fellow officers to look for the car he had previously described— that it might be the one involved in the attempted burglary.

Colleran’s two calls and the burglary message were heard by Officers Lillig and Branstrom who were driving in a squad car on Sherman Avenue, approaching Dempster Street. A minute or two after Colleran’s second call Branstrom spotted a 1956 Chevrolet with a white top and a green bottom with two white males in it driving east on Dempster Street about three blocks from the 900 block of Greenwood. The car’s lights were on.

The officers stopped the auto and got out of the squad car. Branstrom spoke to the driver, Belousek, and Lillig approached the other side of the auto and the passenger, Ellis. Ellis was wearing dark pants and a dark coat; Belousek was wearing a suit of a dark shade. Branstrom ordered Belousek to leave the auto. Belousek obeyed and to the ensuing questions responded that he had been trying to locate a girl’s apartment near Dempster Street in Evanston. He denied being on Davis Street or driving without his lights. Belousek displayed a chauffeur’s license which had expired a few days earlier. Meanwhile, Lillig directed Ellis to open the door and questioned him about his name and address. Ellis said that his name was “Arthur Popolusis, or something like that,” but did not have any identification. While questioning him, Lillig saw a tire iron protruding from under the front seat. He pulled out the iron and in doing so observed a blackjack which was under the seat next to it. He questioned Ellis about the two objects, but Ellis protested that he knew nothing about them — that he did not even know they were there. Lillig also questioned Ellis about the auto. Ellis responded that it was not his and that he did not know to whom it belonged. Lillig later asked Belousek about the objects and the auto. His answers were the same as those of Ellis except that he said that he had borrowed the auto that evening from a friend whom he had known about six months.

As the officers were questioning the two men, Colleran drove up. The stopped auto was the same one he had previously seen and the two men were the persons he had seen in it. Belousek and Ellis were arrested.

About 9:00 p. m. on the same night, Mrs. George Seaverns looked out the window of her second-floor apartment at 902 Greenwood Avenue in Evanston and saw two men alight from a car parked on the street below. The men, one of whom was wearing a dark suit, walked along the parkway looking up at Mrs. Seaverns’ building. A few minutes later she walked into her kitchen which was unlighted. While standing there she heard the sound of scrunching wood. She called out, “Gladys,” to see if her neighbor who lived alone needed help. A minute passed, then Mrs. Seaverns heard the noise again. She called, “Gladys, can I help you? Is that you?” but still there was no answer. The only sound was of footsteps going down the stairs. Mrs. Seaverns unlocked her back door and went out on an enclosed porch which she shared with her neighbor, Gladys Blair. The light on the back porch was out because the bulb had been unscrewed but it came on when Mrs. Seaverns tightened it. With the light, she examined her neighbor’s door and saw fresh marks on it. She returned to her apartment and again looked out the window. She saw the two men whom she had seen before walk to a Chevrolet sedan with a white top and a green bottom. They were not carrying anything and the car which they entered pulled away from the curb at a normal speed. Mrs. Seaverns went to the telephone and called the police. Later that evening, Mrs. Blair returned home. She said she had locked her back door before leaving and that it was undamaged at that time.

The tire iron and blackjack, together with the doorjamb from Mrs. Blair’s back door, were taken to the crime laboratory of the Chicago Police Department and turned over to the officer at the front desk. The next morning Albert Forslev, a mineralogist and geochemist employed by the crime laboratory, found the items locked in his laboratory.

Forslev examined the tire iron and the doorjamb in accordance with the instructions he received. On the wooden jamb was an impression semicircular in shape that measured two centimeters in diameter. A comparable measurement on the tire iron was the same. Other damaged areas on the jamb did not correspond to the measurements of the tire iron. He then examined the spoon-shaped end of the tire iron under the microscope and observed paint fragments adhering to the metal surface— individual particles about a millimeter in diameter which consisted of a cream colored layer over a white, over a bluish gray layer. Next, he made a microscopic examination of samples of paint taken from the damaged portion of the wood near the semicircular impression. He found the three-layer paint again, similar in color, thickness and sequence of layers to the paint on the tire iron. The sequence of the layers, however, was reversed as would result from a metal object being pressed against a painted surface. He further performed chemical tests of the paint particles on the block of wood and the tire iron. The paint from the one object gave the same chemical reaction as that from the other. On the basis of his examination it was Forslev’s opinion that the particles of paint had a common origin.

Belousek first contends that he was not proved guilty beyond a reasonable doubt — that the circumstantial evidence upon which his conviction was based did not exclude every reasonable hypothesis except that of his guilt.

A conviction can be sustained upon circumstantial evidence as well as upon direct evidence. People v. Asey, 85 Ill App2d 210, 229 NE2d 368 (1967). A conviction based upon circumstantial evidence will be upheld if the evidence is of such a convincing nature that it satisfies the jury of the defendant’s guilt beyond a reasonable doubt. People v. Colby, 27 Ill2d 273, 189 NE2d 317 (1963); People v. Robinson, 14 Ill2d 325, 153 NE2d 65 (1958). In this case the quality of the evidence was sufficient to meet this standard.

The paint on the tire iron was similar in color, thickness and sequence of layers and had the same chemical makeup as the paint on the doorjamb. The defendant attempts to explain this away by suggesting that the paint could have come from any back door of the 18-apartment building and that the tire iron and doorjamb might have come into contact with each other while in the possession of the Chicago Police Department, since there was no accounting for control of the items between the late afternoon of the day they were delivered to the crime laboratory and the following morning when Forslev found them in his laboratory. The first explanation is speculative, the second without merit. The tire iron and doorjamb were wrapped separately in paper bags when delivered to the crime laboratory. They were still individually wrapped when Forslev came upon them locked up in his laboratory. All of this indicates careful handling of the items to preserve their original condition and insure the integrity of the tests. Nothing in the record suggests tampering, alteration or substitution, either intentional or accidental, with the separately wrapped items during this period. Cf. People v. Anthony, 28 Ill2d 65, 190 NE2d 837 (1936). Under these circumstances the failure to show who carried the items from the receiving desk of the crime laboratory to Forslev’s laboratory is not a fatal defect in the chain of possession.

The fact that one indentation on the damaged portion of the doorjamb corresponded with one part of the tire iron is added proof of the defendant’s guilt. The defendant retorts that other crunched areas of the jamb were not comparable in measurement to anything measured on the tire iron but this does not mean that the iron could not have caused them.

The defendant was arrested 10 to 15 minutes after the attempted burglary and only three blocks from the scene. He was driving a Chevrolet with a white top and a green bottom, had a male passenger and he and his companion were wearing dark suits — facts which matched the men and the car seen by Mrs. Seaverns. All of this evidence linked the defendant to the crime and supported the jury’s verdict.

The defendant’s other contention is that the search of his auto violated the 14th Amendment of the United States Constitution and article II, section 6, of the Illinois Constitution. He argues that the search was unreasonable and based upon a vague suspicion that the car driven by him was the one seen without its lights and the one involved in the attempted burglary.

Officer Lillig testified that the items seized came into his view without a search. He saw the tire iron protruding from under the front seat as he was questioning Ellis, and he saw the blackjack as he reached down to pull the iron out. Observation of that which is open to view does not constitute a search and the seizure of articles in plain view is not unreasonable. People v. Pickett, 39 Ill2d 88, 233 NE2d 560 (1968); People v. Tate, 38 Ill2d 184, 230 NE2d 697 (1967).

Even if the seizure of the items resulted from a search, the search was based upon probable cause. Within a short period of time the arresting officers had heard three broadcasts which described an auto involved in a traffic violation and one involved in a criminal offense. The descriptions of the autos and their occupants were similar. Within a minute or two after the last message they saw an auto that corresponded exactly with those described and it was occupied by two white men. This, plus the proximity in time and the nearness in location to the two offenses, gave the officers sound reason to think that the auto they saw was the one involved in the offenses. The fact that the auto seen by Colleran was traveling away from the place of the burglary attempt, and that the stopped auto had its lights on does not detract from the reasonableness of their action in detaining its occupants and searching their vehicle. The officers knew that a minor and a major offense had been committed and they had reasonable grounds to believe that the occupants of the auto committed both of them. They had no time to gather more information about either the traffic violation or the attempted burglary. They had to act quickly or the auto and its occupants would have been gone. With the information they had it was their duty to investigate the suspected car. People v. Buck, 92 Ill App2d 16, 235 NE2d 837 (1968). Once the car was stopped, Lillig obtained a further ground for investigation: the passenger, Ellis, had no identification. Cf. People v. Carter, 38 Ill2d 496, 232 NE2d 692 (1967); People v. Jordan, 87 Ill App2d 338, 231 NE2d 630 (1967).

The judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bonnie Mae Welsch, Defendant-Appellant.
    Gen. No. 52,726. (Abstract of Decision.)
    First District, Third Division.
    June 5, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James J. Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

MR. JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ernest Denson, Jr., Defendant-Appellant.
    Gen. No. 52,909. (Abstract of Decision.)
    First District, Third Division.
    June 5, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

MR. JUSTICE DEMPSEY.

Not to be published in full.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Travis R. Trotter, Defendant-Appellant.
    Gen. No. 51,771.
    First District, First Division.
    June 6, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, James J. Doherty and Marshall J. Hartman, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Appellant, Travis R. Trotter, was indicted for the crime of unlawful possession of a narcotic drug. Following a bench trial in the Criminal Court of Cook County, Trotter was found guilty and sentenced to a term of two to five years in the Illinois State Penitentiary.

The defendant was arrested on August 31, 1964, by Officers Campbell and Arnold, upon information from a reliable informer, immediately after a witnessed sale of narcotics. At the trial, the Public Defender announced to the court that Travis Trotter was defending himself, which the court acknowledged. The defendant waived a jury trial and stipulated to what the arresting officers and police chemist would testify to, if called, as follows:

“MR. MORAN: Let the record show it is stipulated Detectives Arnold and Campbell when called to testify would state on August 31st, 1964, they had a conversation with a special employee and informant, and that they arrested the defendant on the street in the vicinity of 4401 South State Street.
“That when they approached the defendant they obtained three packages of narcotics which were dropped near his feet; and Detective Campbell searched defendant and recovered a large tinfoil package containing five small tinfoil packages containing white powder; and they field tested the substance and it proved positive.
“The defendant acknowledged ownership of the package in his pocket but denied ownership of the package on the ground.
“The officers involved, Arnold and Campbell, Narcotics Unit, on September 1, 1964, submitted the package to the Crime Laboratory. We have a report from the chemist, John McDonald, who would state when called that he examined the substance in question and in his opinion the substances were heroin in the amount of .09 grams and the second package tested .11 grams.”

On the basis of such stipulated evidence, the court found the defendant guilty.

On appeal, the defendant argues that the State failed to prove that the substance allegedly found on him was actually in his possession and that it was a narcotic, because the said stipulation is ambiguous, defective, and does not establish the elements of the offense. The argument in appellant’s brief concerning the validity of the indictment has been withdrawn by the appellant pursuant to the recent decision in People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968).

The defense contends that there was no evidence connecting the packages on the ground with the defendant since the stipulation does not state when and by whom the packages were dropped; that evidence of a field test of a substance, as recited in the stipulation, alleged to be a narcotic was positive, is not sufficient to establish that a substance is a narcotic and proves nothing; and that the stipulation in respect to the chemist’s evidence could refer equally to the substance found on the ground near the defendant’s feet and to the substance found on his person. It therefore follows that the stipulation in respect to the chemist’s evidence could be interpreted as establishing that the substance on the ground was heroin, which is irrelevant since there is no evidence which establishes that the substance on the ground was ever in defendant’s possession. Defendant relies upon People v. Ortega, 83 Ill App2d 49, 226 NE2d 426 (1967), where a conviction for possession of narcotics on the basis of evidence similarly stipulated to was disapproved and held to be reversible error. The court concluded in the Ortega case that there was a failure to prove one of the essential elements of the crime, in that the stipulation recited that if the police chemist was called, he would testify that the substance in question “purports to be” heroin. Such a phrase that a substance “purports to be” a narcotic was not proof beyond a reasonable doubt that it was a narcotic.

In the instant case, no such words as “purports to be,” or other phrases of similar import, are used in the stipulation. The stipulation is definite, and states “the substances were heroin.” Therefore, the standards as set forth in the Ortega case are inapplicable to the case at bar. The stipulation states three packages were obtained on the ground near defendant’s feet and a large package was obtained from defendant after searching him. The contention that the packages on the ground were never connected with the defendant is premature. The one package found on the defendant’s person, which defendant acknowledged as his, containing several small packages within it, was the package in question which was first field tested then submitted to the crime laboratory for analysis.

The stipulation also recites the field test was positive, and in People v. Harrison, 26 Ill2d 377, 186 NE2d 657 (1963), our Supreme Court held that where there is a sale and a field test of a substance under scrutiny as a narcotic drug and such test shows positive, there is sufficient proof to establish that such substance is a narcotic drug. Finally, the stipulation is clear that the one package, the package in question containing the several smaller packages, given to the crime laboratory contained heroin. Throughout the stipulation reference is made to the package found on the defendant’s person, and not those packages found on the ground near defendant's feet, and the substance examined by the chemist was the substance found in the packages taken from the defendant’s person.

The evidence stipulated to in the instant case established the elements of the crime beyond a reasonable doubt. Therefore, the judgment is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois Plaintiff-Appellee, v. Wentz Parks, Defendant-Appellant.
    Gen. No. 51,933.
    First District, First Division.
    June 6, 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 Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This appeal is taken from a judgment of the trial court finding defendant guilty of violation of a three-year probation, revoking said probation and sentencing the defendant to the State penitentiary for a term of not less than three and not more than five years. Defendant raised the following issues on appeal. First the court’s denial of defendant’s motion for continuance resulting in failure to grant defendant an adequate hearing of the alleged violation of probation. Second, the failure of the police officers to advise him of his right to counsel, his right not to speak and to warn him that anything said by him could be held against him.

On April 15, 1964, defendant was found guilty of the crime of unlawful possession of narcotic drugs. He was granted probation for three years, the first nine months of which were to be served in the County Jail. The order of probation also provided “that said defendant shall not, during the term of said probation, violate any criminal law of the State of Illinois, or any ordinance of any municipality of said State.”

On June 21, 1965, the Probation Department filed an application for warrant against defendant for violation of probation for failure to report and for having moved so that his whereabouts were unknown. On July 29, 1965, defendant appeared in the Circuit Court of Cook County, Municipal Division, charged with disorderly conduct. He was discharged. He was again taken into custody on the warrant previously issued for violation of probation. The Public Defender was appointed counsel to represent him. On August 4, 1965, the Court ordered a rule to show cause why the probation should not be terminated and revoked and a hearing of said rule was set for August 6, 1965, before Judge Thomas H. Fitzgerald who discharged the rule and recommitted defendant to probation.

On September 20,1965, the defendant was found guilty of theft and disorderly conduct by Judge Epton and sentenced to serve 30 days in the County Jail for the theft and fined $100 for disorderly conduct. On October 8,1965, the Probation Department again filed an application for warrant for violation of probation. A stop was placed on the warrant in November 1965.

On August 17, 1966, at 3:00 a. m., defendant was arrested in the Charles Hotel, 1941 Warren Blvd., Chicago, Illinois, and charged with the possession of a hypodermic needle and syringe and resisting arrest. On August 31, 1966, defendant failed to appear in court. On September 8,1966, defendant was taken into custody on the warrant for violation of probation. On September 16, 1966, the Public Defender was appointed counsel for the defendant. At the hearing on September 26, 1966, before Judge Thomas H. Fitzgerald, counsel for the defendant objected to the proceeding stating:

“I think that when the matter charged on a probation violation is the commission of a crime and since in a probation violation hearing the normal rules of evidence applicable in a criminal court do not apply, I would prefer to see this charge made in a criminal court rather than in this type of hearing.”

The judge did not agree and proceeded with the hearing. One of the arresting officers, Walter Pankiewicz, then testified that he was assigned to the Narcotics Unit and on August 17, 1966, saw the defendant at the Charles Hotel in Apartment 32 with two other persons. The public defender then asked for a continuance stating:

“This in effect is thé trial of the criminal case, I have had about three minutes with this defendant and I feel that he would be denied the effective assistance of counsel if we proceeded at this time.”

The court denied the motion for continuance saying: “Your office was appointed for him, . . . back on September 16. There was a Public Defender appointed.”

Officer Pankiewicz testified further that he observed defendant and another person in the room throw two hypodermic needles out of a window. The needles were retrieved shortly thereafter, and the defendant admitted one of the needles was his. This testimony was corroborated by Officer Robert Frawley. The defendant denied ownership of the needle and the throwing of it out of the window.

Defendant cites ten cases in support of his contention that it was error to deny his motion for continuance. All of them hold that in proceedings to revoke probation on ground of violation of its conditions, the State was not required to prove violation beyond a reasonable doubt. They also hold that the decision of a motion for a continuance is within the sound discretion of the court and will not be disturbed unless there is a showing of abuse of such discretion. Five of the cases cited did not involve revocation of probation.

In People v. Burrell, 334 Ill App 253, 79 NE2d 88 (1948), the Illinois Appellate Court reversed an order revoking probation for the reason that defendant, who was a minor, had no attorney representing him at the hearing of the violation of probation.

In People v. Kostaken, 16 Ill App2d 395, 148 NE2d 615 (1958), the court held that a probationer is entitled to a fair hearing in determining whether or not he has violated a condition of his probation, and the State need not establish beyond a reasonable doubt that he violated a condition of his probation.

In People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113 (1965), revocation of probation was reversed because there was no evidence that defendant violated the terms of probation and because the defendant was never advised in any manner prior to the hearing as to infractions with which he was being charged prior to hearing.

Defendant quotes in his brief from State v. Zolantakis, 70 Utah 296, 259 P 1044 (1927). In that case the defendant was found guilty of violating the Utah State prohibition law and was sentenced to be “confined and imprisoned in the State prison in and for the State of Utah for an indeterminate term . . . and that said sentence be, and the same hereby is, suspended during the good behavior of said defendant.” Subsequently, he was cited to show cause why his suspended sentence should not be vacated and set aside. Citations issued without any information charging him with a violation. The District Court of Salt Lake County vacated the suspended sentence. The Supreme Court of Utah, for the reason that the defendant was not apprised of his alleged violation of probation, reversed the District Court. The Zolantakis case does not apply to the instant case.

In a recent case, People v. Einoder, 96 Ill App2d 174, 238 NE2d 137 (1968), the Illinois Appellate Court reversed an order revoking probation because driving of an automobile by the defendant during the probationary period was not a condition of the probation.

In his brief, defendant quotes extensively from one of the leading cases in Illinois involving violation of probation, People v. Price, 24 Ill App2d 364, 164 NE2d 528 (1960). The defendant in that case was placed on probation for five years after having been found guilty of grand larceny. Subsequently, he was cited for violation of probation for having been drinking in a tavern and having carnal knowledge of a female, forcibly and against her will. The trial court after a hearing found him guilty of violation of probation and revoked his probation. The defendant argued on appeal that there is no express provision in the Statute for a hearing in connection with the revocation of probation and that a defendant charged with the commission of a criminal offense must be adjudicated guilty of such offense by a court having jurisdiction of said offense and a final judgment rendered adjudging defendant guilty of such subsequent offense before the court granting probation can enter an order revoking the original order which admitted the defendant to probation.

The Appellate Court rejected this contention and affirmed the revocation of probation holding that the State is required to prove by a preponderance of the evidence that the defendant had violated the provisions of the probation order. The Appellate Court said:

“What our courts have held is that a defendant in every case where probation has geen granted is entitled to a conscientious judicial determination according to accepted and well recognized procedural methods upon the question whether the conditions imposed upon the defendant when he was admitted to probation have been violated. Such a defendant is entitled to know the nature of the charge in advance of any hearing wherein he is alleged to have breached the order granting him probation and must be given an opportunity to answer any charge that has been preferred against him.”

In the instant case, the trial court was justified in denying defense counsel’s motion for continuance. A motion for a continuance is within the discretion of the trial court and this discretion will not be disturbed on review except for manifest abuse. The office of the Public Defender was acquainted with the defendant having represented him previously. The proceeding before the trial court involved only the question of violation of probation. The defendant was not being tried for the offense of possession of a hypodermic needle and syringe. We find no abuse of discretion on the part of the trial court.

The defendant contends further that the failure of the police to advise him of the Escobedo and Miranda warnings violated his constitutional rights granted by the United States and Illinois Constitutions. A careful reading of the Escobedo and Miranda decisions leads to the conclusion that they apply to custody investigations. In the instant case the police entered Parks’ room in the hotel while making a narcotic investigation. Parks was not under arrest for violation of probation at the time. His admission of the ownership of the syringe needle, which he later denied, was received in evidence at the hearing of the violation of probation. He was not being tried for possession of the syringe needle. Even though he denied ownership of the syringe needle at the hearing, the trial judge did not accept his denial.

Defendant calls our attention to the two cases of Mempa v. Rhay and Walkling v. Washington State Board of Prison Terms and Paroles, which were consolidated and heard on writs of Certiorari to the Supreme Court of the United States, 389 US 128, 19 L Ed2d 336, 88 S Ct 254 (1968). The United States Supreme Court reversed the order revoking probation in both cases for the reason that the defendants were not represented by counsel at probation revocation hearings. In the instant case, Parks was ably represented by counsel and in addition took the stand and testified in his own behalf.

Accordingly, the order of the trial court revoking probation is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Curtis Abbott, Defendant-Appellant.
    Gen. No. 51,953.
    First District, First Division.
    June 6, 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.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

On a 3-count indictment defendant was convicted by a jury of three offenses of the unlawful sale of a narcotic drug. On each count he was sentenced to the penitentiary for a term of 15 to 30 years, sentences to run concurrently. On appeal defendant asserts error as follows: (1) improper restriction of cross-examination of the informer as to his correct name and address; (2) entrapment; (3) improper instruction of jury; and (4) trial errors.

The record shows that Inspector Donald Norton, a member of the Illinois Division of Narcotics, posing as an addict named “Danny,” and through the use of an informer, Harry Schwartz, made contact with defendant, from whom Norton made three narcotics purchases, March 11, 1966, March 12, 1966, and March 15, 1966. On April 5,1966, Norton arrested defendant.

During the trial Norton testified that on the three occasions the narcotics were handed directly to him, and that Schwartz was present only at the first purchase. Norton knew the informer only as Harry Schwartz, although he had heard the informer referred to as Stacey. At the trial it was stipulated that the contents of the three packets delivered to Norton by the defendant was heroin.

The informer, Harry Schwartz, testified as a witness for the State. He was a narcotics addict and had known the defendant, a former addict, for about six years. After some negotiations by Schwartz with defendant, Schwartz and Norton met defendant at 1160 North Sedgwick shortly after midnight on March 11, 1966. Schwartz introduced Norton to defendant as a “good friend.” Schwartz then told defendant he had “$50 to spend” and asked if defendant could get them a “half” (a half-spoon of heroin). They all then drove to 63rd and Bishop, where Norton gave defendant $50 in prerecorded bills. Approximately forty-five minutes later defendant returned with an aluminum foil packet and gave it to Norton. Defendant was driven to his home and, before separating, the defendant gave a telephone number to Norton where he could be reached if additional narcotics were needed.

The next day, March 12, Norton telephoned defendant and asked him if he could “cop a half.” Later defendant and Norton drove to the same general area in which they had met on the previous night. Upon arrival Norton handed $60 to the defendant, who left the car and later returned and handed Norton an aluminum foil packet. At that time defendant gave Norton a second telephone number where he could be reached.

On March 15, 1966, Norton phoned the defendant and asked if he could make a purchase of narcotics [“cop a half”]. Later Norton and defendant drove to 1160 North Sedgwick, where Norton gave $50 to defendant, who left and returned an hour later and handed Norton an aluminum foil packet.

Defendant testified that he had known Schwartz for about six years and by the name of Stacey. They had met two or three times in the week prior to March 11, and Schwartz begged defendant to buy some narcotics for him. He was unable to resist Schwartz’s entreaties, and on March 10 Schwartz appeared to be quite ill because he was unable to secure narcotics from his usual source of supply. It was Schwartz’s poor condition, coupled with defendant’s knowledge of what he was going through, that caused the defendant to agree to buy narcotíes for him. Defendant testified he gave all the money he received from Norton and Schwartz to the person from whom he purchased the drugs. On March 12 and 15, defendant received phone calls from “Danny,” telling him that Schwartz was very ill and needed more narcotics, and because of this he made the second and third purchases of narcotics for Schwartz. He said, “I did not make any money off this deal. I did not use any of the drugs,” and he “would not have gotten those drugs ... if Stacey hadn’t begged me for them.”

Considered first is defendant’s contention that it was reversible error for the trial court, during the cross-examination of Schwartz, to prevent the disclosure to the jury of the informer’s real name and address. The cross-examination of Schwartz was quite extensive. His testimony showed he had been convicted of armed robbery and had spent three years in the penitentiary. He was a current user of narcotic drugs and had been “on narcotic drugs since ’51.” Norton had paid him “forty or fifty dollars” on. another occasion. He became a police informant to keep out of jail.

During the cross-examination of Schwartz defense counsel asked for the true name and residence of Schwartz, and the court sustained the objections of the State to such questions. In a conference between court and counsel outside of the presence of the jury, in which the objections of the State were examined and sustained, the remarks of the court included: “I think that the question of his address is not material and would only subject the witness to a possible disclosure as to his whereabouts, and for informing and testifying in this case, his life definitely would be in jeopardy and it is because of the fact his life would be in jeopardy in disclosing his address, the Court would refuse to permit the information to be divulged at this time.”

Defendant’s authorities on this contention include Smith v. Illinois, 390 US 129, where, on cross-examination of the principal prosecution witness at petitioner’s state trial for illegal sale of narcotics, the trial court sustained the prosecutor’s objections to disclosure of witness’s correct name and his address. It was there held that the petitioner was denied his Sixth Amendment right, made applicable to the States by the Fourteenth Amendment, to confront the witnesses against him. The conviction was reversed. The remarks of the court included (p 130):

“[0]nly this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner’s version of those events was entirely different. The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness. . . . [p 131] In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is an issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

In Smith v. Illinois, the opinion quotes the principles set forth in Alford v. United States, 282 US 687, 694, and includes (pp 132-33):

“The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. . . . But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.”

In Smith v. Illinois, Mr. Justice White, in concurring, stated (p 133):

“In Alford v. United States, 282 US 687, 694 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness.”

The State argues that the principle to be applied here is set forth in Roviaro v. United States, 353 US 53, 62:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

Because of a substantial factual difference, we do not believe the conclusions set forth in Smith v. Illinois are controlling here. We find that in the instant case the extent of cross-examination of the informer with respect to his correct name and address was within the sound discretion of the trial court, and the court exercised reasonable judgment in sustaining the objection of the State. The informer’s background, with the exception of his true name and current address, was known to the defendant. The jury was adequately informed about the informer so as to form an opinion as to his credibility.

Considered next is defendant’s contention that he was the victim of entrapment. “Entrapment” as a defense is provided for in the Criminal Code (Ill Rev Stats, c 38, § 7-12):

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

Defendant asserts that after a prolonged series of persistent requests by the informer to buy narcotics, plus appeals to sympathy, defendant’s resistance broke, and “then and there, for the first time the defendant finally decided to commit the crime. Stacey’s plan of pressure had succeeded and the defendant was entrapped.”

The informer testified that he never begged defendant to buy drugs for him, and he denied pretending that he was sick. Inspector Norton testified that he had no knowledge that the informer “had been begging the defendant Curtis Abbott, to get him drugs for several days prior to March 11 . . . .” He also testified that he would not talk one of his addicts “into pretending he was sick” in order to get a conviction.

Defendant asserts that “the ultimate issue posed by the statute is: Who originated the criminal intent, the entrapping officers and their agents, or the defendant?” Defendant argues that once some evidence concerning entrapment is presented, the State must negate the entrapment defense beyond a reasonable doubt. Ill Rev Stats, c 38, § 3-2; People v. Warren, 52 Ill App2d 374, 380, 202 NE2d 131 (1964).

Defendant states that “while appeals to sympathy and friendship alone are not sufficient to establish entrapment, People v. Hatch, 49 Ill App2d 177, 185, the court implies that if there is also the persistent asking the defendant to buy drugs, as in Sherman [356 US 369 (1958)] and the instant case, then entrapment will be shown.” Defendant’s authorities on this point include People v. Wright, 27 Ill2d 557, 562, 190 NE2d 318 (1963); People v. Gray, 27 Ill2d 527, 530, 190 NE2d 368 (1963); People v. Hall, 25 Ill2d 297, 301, 185 NE2d 143 (1962).

Defendant’s contention of entrapment here presented an issue of the credibility of the witnesses. The denial by the informer of begging for the drugs and the pertinent testimony of Norton, plus the undisputed facts of the “crucial events,” if believed, was sufficient to negate entrapment beyond a reasonable doubt, and the jury elected to believe the testimony of the informer and Norton. In People v. Warren, 52 Ill App2d 374, 202 NE2d 131 (1964), it is said (p 381):

“[T]he jury may reject defendant’s story if, in itself, it is so remarkable as to almost seem incredible if there were no contradictory evidence, . . . or if the story of defendant was so improbable as to justify it in being disregarded by them, or if it was contradicted by the facts and circumstances shown in the record, ... or if defendant’s story was so unreasonable as to be judged improbable.”

The remarks made in People v. Wright, 27 Ill2d 557, 563, 190 NE2d 318, apply here:

“A consideration of all of the evidence in this case leads us to the conclusion that the defendant was not entrapped. His conduct was merely that of a wary seller of narcotics who exhibited only the natural caution and hesitancy of one engaged in that illegal traffic rather than that of an innocent person who was enticed into committing a crime he would not have otherwise committed.”

Defendant next contends that “it was reversible error to refuse defendant’s instruction that a conviction for sale of narcotics cannot stand where defendant acted only as a non-profit procuring agent.” Defendant argues that federal court decisions dealing with a narcotics statute analogous to the Illinois provision under which the defendant was indicted have held that where the government officials, or their informer-agents, asked the defendant to buy narcotics for them, and the defendant did act in their behalf rather than his own, buying from a third person with whom the defendant was not associated in selling, and thereafter delivering the narcotics to the buyer, then the defendant would not be the seller and could not be convicted for unlawful sale. (Adams v. United States, 220 F2d 297 (1955).) Defendant argues the evidence in the instant case was similar to that in Adams and called for the so-called “purchasing or procuring agent instruction.”

The State contends no error was committed in refusing the purchasing agent instruction because chapter 38, section 22-2-11, provides: “ ‘Sale’ means and includes traffic in, barter, exchange, or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, broker, agent, servant or employee.” The State notes that defendant asserts in his brief that “he acted only as an agent.” The State argues “since defendant admits on appeal that he acted as agent for the purchase, in the transaction involved, and since agency is expressly included in the definition of sale, there was no error in refusing defendant’s Instruction.” We agree.

In People v. Shannon, 15 Ill2d 494, 497, 155 NE2d 578 (1959), it is said:

“We are of the opinion that the definition shows a legislative intent that the act of a person whether as agent, either for the seller or the purchaser, or as a go-between, in such a transaction constitutes a sale. Since the agency was admitted and proved, the conviction under counts for dispensing and selling was established beyond a reasonable doubt.”

Defendant next contends that it was error to admit into evidence and submit to the inspection of the jury the packages of narcotics despite the defense’s stipulation that the content of the packages was heroin. Defendant asserts this evidence had no relationship to guilt or innocence and only served to prejudice the defendant in the eyes of the jury. We believe this was a matter which was within the discretion of the trial judge. Defendant had not pleaded guilty to the charges of selling narcotics, and the exhibits in question were relevant to establish the facts in controversy. In People v. Jenko, 410 Ill 478, 102 NE2d 783 (1951), it is said (p 482):

“[Q] uestions relating to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the trial judge, and the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant.”

Defendant next contends that it was reversible error for the trial court to allow Inspector Norton to hint at defendant’s police record in the presence of the jury. Upon direct examination Norton testified he recognized the defendant’s name “through other investigative procedures.” The court denied defendant’s objection to such a reference. Defendant argues that the statement “doubtless had its effect on the minds of the jurors in prejudicing the defendant” and depriving him of a fair trial. Authorities include People v. Cage, 34 Ill2d 530, 533, 216 NE2d 805 (1966):

“The general rule, of course, is that evidence of commission of other crimes by an accused, in addition to that for which he is on trial, is inadmissible unless its relevancy in placing a defendant in proximity to the time and place, aiding or establishing identity, or tending to prove design, motive or knowledge is so closely connected with the main issue as to justify admission.”

Although statements such as that in question may be subject to objection, we think the instant situation came within the discretion of the court and we find no error here.

Finally, the defendant argues that the trial court erred in giving and refusing various instructions. Defendant asserts the giving of State’s instructions 10, 11 and 12 was improper because they were highly prejudicial by not being included in one instruction. Defendant further asserts that the court improperly refused defendant’s instructions 15 and 17.

As to the State’s instructions 10,11 and 12, the State maintains that a single instruction need not contain all the law upon a single subject. We agree. See People v. Stevens, 11 Ill2d 21, 29, 141 NE2d 33 (1957). The State further states that the two defense instructions, which were refused, were merely repetitious of other instructions already given — defendant’s instruction 15 was rendered unnecessary by virtue of defendant’s instruction 1, and defendant’s instruction 17 was rendered unnecessary by virtue of defendant’s instruction 14 and State’s instruction 4 (both on entrapment). An examination of all the instructions given shows that the jury was accurately and fully instructed as to the law applicable to this case and on all issues presented, including entrapment. We find no error in the refusal of defendant’s instructions 15 and 17.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. JUSTICE SMITH

text:
    Martin Kaluza and Edward Kaluza, Plaintiffs-Appellants, v. The North American Company for Life, Accident & Health Insurance, Defendant-Appellee.
    Gen. No. 52,336.
    First District.
    June 6, 1969.

      Harold A. Liebenson, of Chicago, for appellant.
    Schiff, Hardin, Waite, Dorschel & Britton, of Chicago (James B. O’Shaughnessy, William T. Hart and Gary L. Mowder, of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of the court.

Plaintiffs appeal from a bench trial judgment that they take nothing by their suit for a breach of an insurance agency contract. The complaint is in three counts. The first alleges damages to both plaintiffs. The second count alleges damages to Martin only. The third count seeks recovery by both against the defendant on a quantum meruit basis. It is the plaintiffs’ contention that the defendant company unlawfully terminated, canceled, repudiated or breached the agency contract with them to their damage. The trial court properly held that the contract was lawfully terminated.

The agency contract involved here was one entered into between high-class business executives of long experience and expertise in the insurance field. The record discloses that the preliminary negotiations are of little or no importance in the determination of the issues here involved other than to furnish a backdrop for the contract which ultimately resulted. Edward Kaluza had some 18 years’ experience with great success in the organization of insurance agencies and the sale of life insurance for a competitor company of the defendant. His son, Martin, had had insurance training, but was then presently employed full time with Motorola and devoted his spare time to assisting his father in the insurance agency. It was a highly successful life insurance agency. Its services were coveted by the defendant. The plaintiffs were willing to be coveted if the price was right. A contract was entered into on March 15, with an effective date of March 1. There is nothing in the record to justify any thought that there was any failure to disclose existing facts or a misrepresentation of any existing facts on the part of any of the parties. An office was set up, agents and receptionists employed, brochures obtained, business transacted and the defendant paid the agency commissions amounting to $2,500.09, from March 1 to July 15. On this latter date, the agency contract with the plaintiffs was terminated.

The backdrop further discloses that by entering into the contract with the defendant, Edward might well lose premium renewals with the competitor company. This he did not want to do. In an attempt to avoid this possibility, the agency contract with the defendant was made in Martin’s name and granted him an exclusive agency for the defendant in Cook and several other Northern Illinois counties. A supplemental letter was treated as a part of the contract in which Martin faithfully represented to the defendant that his father would be active in the support and aims of the agency agreement and “with full and competent energy to the purposes of the agreement.” The agreement further provided that if Edward M. Kaluza should fail to perform as thus represented, “the agency agreement to which this is a supplement may be terminated by the company within the provisions of said agreement provided that death or disability of the said Edward M. Kaluza shall not constitute failure to perform hereunder.”

The agency agreement also provided that the general agent agrees “(a) To devote his entire time faithfully and industriously to the service of the company exclusively, and to submit no business to other companies or agencies except such as first shall have been declined by the company.” At the time this contract was entered into, Edward was under a contract to devote his full time to the competitor company. At the time the contract was entered into, Martin was working full time as an engineer for Motorola and part time for the cornpetitor insurance company. At no time during the period in which this contract was enforced were these facts any different other than from May 17 to June 29, when the competitor company had canceled its contract with Edward.

Upon notice of such cancellation, Edward immediately contacted the officials of the competitor company, met with them, obtained an agreement to reinstate upon condition that he devote 100% of his time to the competitor company and further that his son either devote his time in the insurance field to the competitor company or at least desist from activity in any other life insurance company. While the general agency contract was in the name of Martin, it is apparent that it was intended to be obligatory upon Edward and for that matter, Edward reported the income from the sales under the contract in his own individual income return. It is thus apparent that the contract which the plaintiffs seek to enforce was abortive from its very inception and all parties were aware of this fact. It requires no perspicacity to observe that neither of the Kaluzas could perform their contract with the defendant without violating existing obligations with other companies. It is equally perfectly apparent that Edward came to the crossroads where he either devoted his time to the defendant or to the competitor company. After 18 years with the competitor company, he went back to his first love and abandoned his flirtation with the defendant. His repudiation of the contract preceded that by the defendant. His repudiation of the contract justified the cancellation of the contract by the defendant under the supplemental agreement for it so specified. When Edward was no longer with the defendant or complying with the contract, then the cancellation of the agency contract under the supplemental agreement was authorized. Its terms were specific and precise. Death or disability of Edward alone permitted the continuation of the agency contract without performance on the part of Edward.

In Illinois as long ago as Orr v. Ward, 73 Ill 318 (1874), our Supreme Court stated:

“Before appellee could recover, in any event, he must aver and prove he kept and performed his part of the agreement. This he has not done. It was the express agreement he should devote his whole time and attention solely to the interests of his employers. The proof shows he was, for a part of the time, at least, covered by the contract, engaged in taking orders for the Phila. Collar Co., for the sale of its goods. This is sufficient to bar a recovery, and is such a breach of the contract as would justify a rescission, although appellee may not have been discharged for that reason.”

To a like tenor is 44 CJS, Insurance, § 155, where it is stated on page 829:

“Where the agent agrees to devote his entire time and energy to the company’s business, he is bound to devote his time and energy with that degree of diligence and attention usual among industrious business men engaged in like business and pursuing no other avocation.”

Indeed it has been held that the mere making of a contract with a competing company is a renunciation of one’s obligation under a full-time contract and is in itself sufficient to entitle the company to treat the agency contract as terminated. Wyatt v. Southwestern Life Ins. Co. (Tex Civ App), 149 SW2d 1063 (1941). The renunciation and the repudiation of the contract in the case at bar was on the part of the plaintiffs and not on the part of the defendant.

The plaintiffs, however, assert that since the defendant indicated in its notice of termination that the reason for such termination was that the president of the company had no authority to enter into this contract with the plaintiffs, it is now bound by that election irrevocably and if the reason assigned is erroneous, any valid reasons for the termination of the contract are either waived or barred through estoppel. In Illinois State Toll Highway Commission v. M. J. Boyle & Co., 38 Ill App2d 38, 51, 186 NE2d 390, 396, the court stated:

“The wisdom, fairness or folly of a contract made between parties fully competent to contract, and based upon a proper consideration, is not a matter of concern to a court where no fraud or overreaching is claimed. The courts cannot relieve parties from their own imprudence in taking on undue risks. . . .”

It is pure sophistry to assert that all parties were not fully aware of the hazards inherent in Edward’s relationship with the competitor company. They contracted on that basis. All parties knew that it had its risks and its hazards. The plaintiffs even insisted that they be protected against it. When the ax fell, Edward elected and having elected, he repudiated the contract upon which he now sues. He cannot have his cake and eat it too. It seems clear to us that the defendant-company performed its part of this agreement. They paid the commissions earned during the period the agency contract was in force and terminated it according to its terms. Waiver and estoppel are instrumentalities of the law to prevent injustice — not to accomplish it.

So far as the quantum meruit basis of recovery is concerned, we find it difficult to find any unjust enrichment of the defendant under the circumstances here stated. In fact, we find it difficult to find any enrichment at all when what must be one of the greatest life insurance areas in the world was tied up on an exclusive contract with two people who could not perform their end of the bargain without violating other contracts and who ultimately repudiated their own contract with the defendant.

It seems clear to us that the trial court was squarely on target in the judgment entered in this cause. His judgment is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert A. Ojeda, Defendant-Appellant.
    Gen. Nos. 53,433, 53,434.
    First District, First Division.
    June 6, 1969.

      Rafael A. Del Campo, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Albert A. Ojeda, was charged with speeding and with driving a motor vehicle while under the influence of intoxicating liquor. He pleaded not guilty, waived a jury trial, and upon being found guilty as charged, he was fined $15 and $5 costs on the speeding charge and $200 and $5 costs on the drunken driving charge.

The defendant contends, on appeal, that (a) the conduct of the trial court was prejudicial, (b) the court erred in failing to call an additional witness and (c) that the defendant was not proven guilty beyond a reasonable doubt.

We turn first to the consideration of whether the remarks of the trial court were prejudicial and resulted in an unfair trial. The record, which is incomplete, shows that Officer Burns testified that at 5:30 a. m. on January 28, 1968, he was in a one-man car when he saw defendant’s car pull over to the side of Fullerton Avenue. He stated that he observed the female driver of the automobile, Miss Schultz, change places with a male passenger, the defendant. The defendant then drove away at an excessive rate of speed, 45 miles per hour in a 30-mile per hour zone. After stopping the car some distance away, Officer Burns ordered the defendant out of the car. Upon noticing the odor of liquor on the defendant’s breath, he had the defendant taken to a police station. Officer Burns further testified about various things he observed about the defendant, of certain tests given to the defendant and the results of those tests. In the officer’s opinion, the defendant was under the influence of liquor. He gave the defendant two tickets and took his driver’s license. The testimony of the officer was the only evidence offered by the State.

The defendant testified that when the officer stopped his car he was sitting on the passenger side of the automobile. He said that the officer asked his female companion, who was driving, for her driver’s license, but that she did not have one. On cross-examination he said that he was not feeling well when he left a restaurant and for that reason he let Miss Schultz drive. When asked by the court why he gave his driver’s license to the police officer when his friend was driving, he answered he did so because she did not have a license. After further questions, the court asked the officer if he had a partner and Officer Burns answered in the affirmative.

The record reveals that the following took place after Officer Burns’ answer:

The Court: “All right, let’s bring him (the other officer) in. If he [the defendant] is lying, I’m going to give him the limit.”
Mr. Del Campo (defendant’s lawyer): “I have a witness.”
The Court: “You can put on your witness. I can imagine what she is going to testify to — go ahead, put her on — she is going to say she was the driver, but I am warning you, counsel, and I am warning the defendant — I’m going to continue this case and bring in the lieutenant who was there at the time.”

Ann Schultz then took the stand as a witness for the defense and testified that she was employed as a secretary. She said that after they left a restaurant, the defendant said he was not feeling well and asked her to drive, which she did. She further testified that she did stop with the idea of changing drivers, but that she continued to drive. When the officer stopped the car she pulled over to the side. The officer told her she was speeding and asked for her driver’s license. When she replied that she had left it at home, the officer gave the defendant a ticket. She stated that she drove to the station where the defendant posted a bond.

The cause was then continued by the court for a month on its own motion for the purpose of bringing in the other officer. When the case was again called for trial, the defendant’s counsel moved for a directed verdict. The court denied the motion and found the defendant guilty on the prior evidence.

The defendant maintains that the remarks of the trial court were prejudicial and clearly indicated the court’s attitude of disbelief of the defendant and his witness. This the defendant urges is prejudicial error requiring reversal.

The State contends that a trial judge must have considerable latitude in conducting a trial and only where his conduct or remarks on evidence are "such as would ordinarily create prejudice in the mind of a jury do they constitute reversible error. While we agree with this statement of the law we cannot accept the State’s corollary which would have us hold that anything a judge says during a bench trial only makes explicit that which would otherwise be implicit in a finding adverse to the defendant and does not prejudice the defendant.

The State refers us to People v. Faginkrantz, 21 Ill 2d 75, 171 NE2d 5. There the trial judge, in a bench trial, indicated during the course of a defense witness’s testimony that he did not believe the witness’s testimony. In answering the defendant’s contention that this was error, the Illinois Supreme Court stated:

Upon such a trial [a bench trial] a judge’s comments only make explicit what would otherwise be implicit in a finding adverse to the defendant. They thus become a matter of taste, in the absence of a showing of prejudice.

People v. Faginkrantz, 21 Ill2d 75, 80, 171 NE2d 5, 8.

The second case cited by the State is People v. Clay, 27 Ill2d 27, 187 NE2d 719. After the finding was delivered in Clay the defendant there entered into a colloquy with the court and stated, “In other words, you don’t believe the officer [an important State witness] would lie?” to which the court replied, “No, sir, I don’t.” The defendant alleged error and the Illinois Supreme Court ruled “This statement by the court merely made explicit what was otherwise implicit in his finding of guilty and does not show prejudice.” People v. Clay, 27 Ill2d 27, 33, 187 NE2d 719, 722.

Both of the cases cited by the State differ significantly from the case before us. In Clay the alleged prejudicial remarks were made after the trial judge delivered his verdict. Since it is the duty of the trial court to determine credibility when sitting without a jury, it comes as no surprise that at the end of a trial a judge has an opinion about the veracity of one of the witnesses. It can hardly be said at that point that the judge was prejudiced merely because he expressed that opinion.

In Faginkrantz the alleged prejudicial comments came at the conclusion of the State’s cross-examination of a defense witness. The trial judge had heard the State’s case and the greater portion of the testimony of the defense witness before he made his comment. The Supreme Court rejected defendant’s allegation of prejudice stating that the comment came too close to the conclusion of the cross-examination of the defense witness to affect the testimony of the witness.

In the case at bar, however, the court’s comments came before the judge had heard or had the opportunity to observe the defense witness testify. The remarks clearly informed the defense that the court believed the police officer and would disbelieve anything Miss Schultz would say. It is manifest, therefore, that the improper remarks could only have had a prejudicial effect on the defense witness’s testimony. Of more concern, however, is the possibility that the improper comments, coming when they did, reflected a preconceived attitude on the part of the trial judge regarding the defendant’s guilt. Since it is fundamental that a Magistrate resolve disputed questions of fact only after hearing all of the evidence with an open mind, we must reverse and remand this cause for a new trial. In view of our holding that those statements of the trial judge made immediately before Miss Schultz testified were prejudicial to the defendant, it is unnecessary for us to pass upon the other contentions of the defendant.

For the reasons set forth in this opinion the conviction and judgment is reversed and is remanded for a new trial.

Reversed and remanded.

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


author: MORAN, J.

text:
    Paul Shatkus, Plaintiff-Appellee, v. Checker Taxi Company, Inc., Defendant-Appellant.
    Gen. No. 52,435.
    First District.
    June 6,1969.

      Jesmer and Harris, Gerrard and Gerrard, of Chicago (Michael A. Gerrard, Allen S. Gerrard and Julius Jesmer, of counsel), for appellant.
    Frank J. Mackey, Jr., of Chicago (Louis P. Miller, of counsel), for appellee.
   MORAN, J.

Plaintiff brought this action in the Circuit Court of Cook County seeking damages from the Checker Taxi Company for injuries sustained when attempting to board a cab of the defendant. He claims that while he was entering defendant’s taxicab, it started into motion before he was safely inside and failed to stop when its driver knew, or should have known, that he was being dragged down the street by the cab. The defendant admitted operation of the cab but denied that a carrier-passenger relationship existed, contending that plaintiff attempted to enter said taxicab for the purpose of committing an assault and inflicting bodily harm upon the driver of the cab.

The jury returned a verdict in favor of the plaintiff in the amount of $43,500. Defendant moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The trial court denied the motion and granted a new trial unless the plaintiff would remit $8,500 from the verdict. When plaintiff consented to the remittitur, the court entered a judgment for $35,000, and denied defendant’s post-trial motion for a new trial. We affirm.

The accident in question occurred shortly after 7:00 p. m. on July 27,1959, near the northwest comer of Archer and Halsted Streets in the City of Chicago. Plaintiff testified that he had just stepped out of a restaurant and was standing on the curb waiting for a bus, when he signaled a Checker cab. The cab stopped about five feet past him and the driver opened the left rear door. Plaintiff grabbed the left rear door handle, put one foot into the cab and told the driver to take him to Archer and Kedzie, whereupon the driver said “Okay.” Before the plaintiff was completely in, the cab suddenly took off and the right side of plaintiff’s head went against the door. He was rendered unconscious and did not remember anything after that until he awakened later that night in the hospital. Plaintiff also testified that he never saw the cab driver before the accident, that the cab driver was never outside of the cab, and that there was nothing obstructing the right side of the cab, but he went to the left side because he saw that door open.

Jerry Koon testified on behalf of the plaintiff that he was buying gas at a filling station located on the southwest corner of Archer and Halsted Streets. As he was standing by the side of his car, he heard some talking across the street and looked in the direction of the voices. Although he did not recognize any words, he saw the plaintiff standing by the open left rear door of the Checker cab talking to the driver who was seated inside the cab. At this same moment, the cab started to move while plaintiff was half in and half out. The cab took off fast, approximately thirty miles per hour, with the plaintiff hanging on for about one hundred feet and then falling to the pavement. The cab, which was a yellow and green Checker cab with numbers 4747, continued on Archer Street without returning to the scene of the accident. Koon estimated that the cab was about sixty feet from where he was standing when he first noticed it and the plaintiff. He had no idea how long the cab was at this location, because he did not see the cab until his attention was diverted in that direction by voices. After plaintiff had fallen to the pavement, Koon immediately went to his aid and discovered that he was unconscious and there was blood on his face. Koon parked his car in the street so as to protect the unconscious plaintiff from the oncoming traffic and stayed at the scene of the accident until the police arrived and he then gave them a statement.

Patricia Lukas testified on behalf of defendant that she worked in a restaurant on the corner of Archer and Halsted. As she was leaving the restaurant and going to a tavern next door, she passed two men on the sidewalk whom she did not know. She had her back to these men and was in the doorway of the tavern when she heard a loud slap. When she turned around, the driver started walking toward the cab and plaintiff just stood there and said, “Did you see that ? Did you see him hit me? I ain’t going to let him get away with it.” After hearing these statements, she then noticed that the driver was already inside the cab and starting the motor, when the plaintiff started to go around the cab from the rear and had reached the left rear door when the cab started to move forward. Plaintiff had tried to open the left rear door, but had not succeeded when the cab started to move. Since the left side of the cab was facing the street, she could not tell whether plaintiff was running with or hanging onto the cab. The cab continued on after plaintiff had fallen. She knew it was a Checker cab but did not notice the number. She immediately went back into the restaurant. On the following day, a man from Checker Cab came into the restaurant and took her statement. This was the only statement she had given concerning the accident.

Herman Fetzner testified on behalf of the defendant that he was a driver for the defendant and was driving Cab No. 4747 on the date of the accident; that he never operated his cab on that day in the vicinity of Archer and Halsted; that he never saw plaintiff on this day; and that his daily log sheet did not record any pickups at Halsted and Archer.

Defendant contends that the trial court erred in not granting it a judgment notwithstanding the verdict or in the alternative that the trial court erred in not granting a new trial because the verdict was against the manifest weight of the evidence.

This case involves conflicting versions of how the accident happened and therefore the trial court properly left the dispute to the jury. Under the facts in this case the trial judge could not say that the evidence, when considered in the view most favorable to the plaintiff so overwhelmingly favored the defendant that no contrary verdict could ever stand and therefore committed no error in refusing to direct a verdict at the close of all of the evidence and in refusing a motion for a judgment notwithstanding the verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Nor do we find that the verdict and judgment below are against the manifest weight of the evidence. The opposite conclusion is not clearly evident and therefore this court will not substitute its judgment for that of the jury, even though we might feel that another conclusion would be more reasonable when we find there is, as here, an evidentiary basis for the verdict. Manifest means clearly evident, clear, plain, indisputable. Bray-field v. Johnson, 62 Ill App2d 59, 210 NE2d 28; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705.

Defendant also contends that plaintiff committed reversible error by the misconduct of his attorney in the improper use of a police report in the redirect examination of Officer Craven when plaintiff’s counsel asked:

“Q. Officer, did you ask Mr. Fetzner, ‘Do you wish to make a statement of your own free will, without any promise of remuneration or reward having been made to you ?’ and did he say, ‘No ?’ ”

The trial judge sustained an objection to this question and instructed the jury to disregard it. However, defendant states in his brief that Mr. Mackey (plaintiff’s counsel) read this question and answer from the documents having been previously identified as Chicago Police Reports in the sight and presence of the jury.

The record does not sustain this contention.

Mr. Jesmer: “But you cannot, Your Honor, take that instrument like Mr. Mackey did and read what was in there.”
The Court: “Well, he didn’t read it.”
Mr. Jesmer: “Didn’t he say that his name was— does it refresh his recollection that his name was Herman Fetzner, his age, address, and so on? He read from it and he said that refreshed his recollection.”
The Court: “Oh, no.”

We see no reversible error in this incident.

Defendant contends that the plaintiff’s counsel was also guilty of prejudicial misconduct during his cross-examination of defense witness Fetzner when the following incident occurred:

Mr. Jesmer: “I wish the record to show that plaintiff’s counsel, Mr. Mackey, is holding his exhibit No. 7 in such a manner that it is quite obvious as to what it is to everybody, that he is reading those questions from that exhibit No. 7 that is not in evidence.”
The Court: “The record may so show. Let me say to you, Mr. Mackey, your exhibit No. 7 is not received in evidence. It is improper conduct and I want it stopped now.”
Mr. Mackey: “Very good, sir. Judge, lest I ask an improper question, may I be heard briefly ?”

Out of the presence of the jury, Mackey argued that he should be allowed to impeach Fetzner by the use of this exhibit. At the end of the conference the trial judge admonished plaintiff’s lawyer not to use the report any more and plaintiff’s counsel made no further reference to the exhibit.

This was not the only instance when an improper use of the police report was attempted during the trial. A short time before this incident defendant’s counsel was cross-examining Officer Craven and asked him:

“Q. All right, sir. Look in those records that were handed to you and tell us where is there a recording of your having gone, for example, to the gasoline station or to this place or the other to look for witnesses ?”
Mr. Mackey: “I will object to this.”
The Court: “The objection will be sustained. The Jury is instructed to disregard the last question.”

In North Chicago St. R Co. v. Cotton, 140 Ill 486, 29 NE 899, our Supreme Court said at 503:

“But when the record comes to this court bearing with it the official sanction of the trial judge, very different questions are presented. Every reasonable presumption must be indulged in that the trial judge has performed his duty and has properly exercised the discretion vested in him, and that he has permitted no misconduct of counsel materially prejudicial to the opposite party to intervene, unless such misconduct and its prejudicial nature are clearly shown by the record.”

The record discloses that both parties were represented by able counsel who were constantly maneuvering for advantage and that the able trial judge was in control of the situation. We see no prejudicial misconduct clearly shown by this record.

The plaintiff has questioned the propriety of the remittitur of $8,500 (c 110, Ill Rev Stats (1965) § 68.1 (7)). Under the evidence we do not consider this was an abuse of discretion by the trial judge.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: ALLOY, J.

text:
    In the Matter of the Application of the County Treasurer and Ex Officio County Collector of Cook County, Illinois, for Judgment and Order of Sale Against Real Estate Returned Delinquent for Nonpayment of General Taxes for the Year 1962 and Prior Years. Petition of William B. Levy, Trustee, for a Tax Deed. Federal Savings and Loan Insurance Corporation, a Corporation Organized Under the Laws of the United States, Petitioner-Appellant, v. William B. Levy, Trustee, Respondent-Appellee.
    Gen. No. 52,535.
    First District.
    June 6,1969.
    Rehearing denied'July 3,1969.
    David J. Shipman and John F. McCarthy, of Chicago (McCarthy and Levin, of counsel), for appellant.
    Blair & Buyer, of Chicago (Allan L. Blair, Bruce M. Buyer and Raymond J. Miller, of counsel), for appellee.
   ALLOY, J.

The record in this case indicates that Second Federal Savings and Loan Association of Chicago held a mortgage on certain real estate in Cook County. This mortgage was assigned by Second Federal to Federal Savings and Loan Insurance Corporation, a United States corporation. Pri- or to such assignment, the owner of the property had failed to pay the 1962 real estate taxes on the lots. On January 17, 1964, the 1962 Judgment, and Sale, Forfeiture and Redemption Record were filed in the Cook County Circuit Court and an order was entered directing a sale of all delinquent property. The tax sale was held on March 4, 1964, and Interstate Bond Company purchased the two lots and the certificates of purchase were issued to Interstate. Thereafter, Interstate paid the 1964, 1965, and 1966 taxes on the lots. The period of redemption, normally two years, was extended by Interstate until November 30, 1966. As noted, the assignment of the mortgage to the Federal Insurance Corporation was made after the tax sale on March 4, 1964, on July 16 of that same year. Following the assignment, the Federal Insurance Corporation foreclosed its mortgage and obtained a Master’s Deed to the lots on April 29,1966.

A few months later, on July 1, 1966, Interstate Bond filed petitions for Tax Deeds. Notice of such petitions was personally served on LaSalle National Bank as the party in whose name the real estate was last assessed for general taxes. It had no interest in the property at the time. Personal service was also made upon the occupant of the property, a Melvin Katz. Notice was also served on Federal Savings and Loan Insurance Corporation by service on one Janice Bell, an employee of Federal Savings and Loan Insurance Corporation, at its Chicago office at 7666 West 63rd Street, Summit, Blinois. Janice Bell made an investigation in her office to determine what interest the corporation had in these lots. The office in which Janice Bell was located only handled certain property and was not handling the particular property involved. Following her investigation in her own office, she returned the notice to Interstate Bond indicating her office had no record of any interest in the lots. The Washington, D. C. office of Federal Insurance Corporation was actually handling the property and had hired Second Federal Savings and Loan Association of Chicago to manage the property, which was improved with a garage-type building. The Summit, Illinois, office of the Federal Insurance Corporation, which was the only office of the corporation listed in the Chicago telephone book, had no information on the lots since it was not managing such real estate.

A federal statute creating the Federal Savings and Loan Insurance Corporation provided as follows:

“§ 1725. Creation of Federal Savings and Loan Insurance Corporation.
“ (c) On June 27, 1934, the Corporation shall become a body corporate, and shall be an instrumentality of the United States, and as such shall have power—
“ (1) To adopt and use a corporate seal.
“(2) To have succession until dissolved by Act of Congress.
(3) To make contracts.
“(4) To sue and be sued, complain and defend, in any court of competent jurisdiction in the United States or its Territories or possessions or the Commonwealth of Puerto Rico, and may be served by serving a copy of process on any of its agents or any agent of the Federal Home Loan Bank Board and mailing a copy of such process by registered mail or by certified mail to the Corporation at Washington, District of Columbia(Emphasis ours.)

The parties stipulated that no copy of any process was mailed to the Federal Insurance Corporation in Washington, D. C. No notice of any kind was served on Second Federal Savings and Loan Association of Chicago, as apparently Interstate Bond had no knowledge that it was involved in the management of the property for Federal Insurance Corporation. On December 7, 1966, the trial court entered an order directing the County Clerk to issue Tax Deeds to William B. Levy, Trustee, the assignee of Interstate Bond Company. The order contained a recital of a standard provision:

“5. That all notice as required by law has been given and petitioner, William B. Levy, Trustee, has complied with all the provisions of law entitling it to a tax deed to said parcel of real estate.”

Thereafter, on April 5, 1967, Federal Insurance Corporation filed a petition under section 72 of the Civil Practice Act (1967 Ill Rev Stats, c 110, § 72). The action was filed to set aside the tax deeds issued pursuant to the order of December 7, 1966. It was alleged that the failure to mail the copy of process to the Washington, D. C. office of the Federal Insurance Corporation, made the proceedings void and deprived the trial court of jurisdiction to enter its order of December 7, 1966, and that the court should exercise its equitable jurisdiction in setting aside such order and granting relief to petitioner. The facts were stipulated by the parties hereto. The trial court denied the petitions to set aside the tax deeds and the Federal Insurance Corporation has appealed to this Court asserting that such relief should have been granted pursuant to the petitions filed under section 72 of the Civil Practice Act for the reason that jurisdiction over it was lacking in the proceedings for the tax deeds and that such error appears on the face of the record of those proceedings, and that justice and fairness require the granting of such relief.

If petitioner had not been a federal corporation with special rules for service and immunity, a failure to comply with the notice requirements of sections 263 and 266 of the Illinois Revenue Act (1967 Ill Rev Stats, c 120, §§ 744, 747) would not have justified setting aside an order of the type involved in this case unless there was a showing of fraud. The recital as to the giving of notice would have been conclusive unless fraud was involved (Dahlke v. Hawthorne, Lane & Co., 36 Ill2d 241, 222 NE2d 465). That would have been the result even if the error was apparent on the face of documents presented in the application for the deed (Southern Illinois Power Cooperative v. Lowery, 79 Ill App2d 180, 224 NE2d 32). The fact that petitioner in the case before us was a federal corporation and an arm of the United States Government, creates an exception to the general rule heretofore recited. To meet the issue, appellee has asserted that the proceeding for a tax deed in the instant case should be considered to be an in rem proceeding as against real estate, rather than as a suit against the Federal Insurance Corporation. In support of this position, appellee cites section 1725 (e) of the National Housing Act (the Act creating the Federal Insurance Corporation) which provides:

“Any real property of the corporation shall be subject to state, territorial, county and municipal, or local taxation to the same extent according to its value as other real property is taxed.”

No case cited by appellee, however, passed directly on the question involved in the instant case. The cases cited by the Federal Insurance Corporation, appellant (Sissman v. Chicago Title & Trust Co., 375 Ill 514, 32 NE2d 132; Messenger v. United States, 231 F2d 328) involved actions for personal service and are not exact precedents in proceedings involving tax deed matters, even though such cases emphasize the necessity of serving written notice as required by statute when suing an arm of the sovereign.

The decision in People v. Georgeoff, 32 Ill2d 534, 207 NE2d 466, is of aid in determining the issue before this Court. The Georgeoff case involved some property at the end of the Lewis and Clark Bridge over the Mississippi River. The State of Missouri owned the property for a number of years. Real estate taxes were levied as against the property and were not paid. A deed dated December 30, 1959, conveyed the property to the State of Illinois, and this deed was recorded on January 7, 1960. On January 4, 1960, an order was entered ordering the property sold for delinquent taxes and the property was sold to Georgeoff on January 12, 1960. George-off paid the subsequent taxes. On September 11, 1961, Georgeoff petitioned for a tax deed and personally notified the State of Illinois by serving the Governor and the Department of Public Works. An order was entered directing Issuance of a tax deed to Georgeoff and the State appealed. The State of Illinois argued that the constitutional provision that “the State of Illinois shall never be made defendant in any court of law or equity” prevented any tax deed proceeding against the State of Illinois because of lack of jurisdiction. The Illinois Supreme Court, in reversing the order for a tax deed, concluded that this proceeding was in effect a proceeding against the State of Illinois which was prohibited by the constitution. The court said specifically (at page 537):

“The determinative factor is the constitutional proscription contained in section 26 of article IV above quoted. The tax purchaser argues that the State is not actually a party defendant to these proceedings, but was simply the recipient of notice of the petition for tax deed and hearing thereon. Our decisions are to the contrary. In In re Petition of City of Mt. Vernon, 147 Ill 359, a special assessment proceeding, we said (p 363): ‘The statute requires that notice of the assessment shall be sent by mail to the owner of the property, and that notices shall be posted and published. . . . We think, that when the State is thus called into the county court to defend a proceeding against its property, it is made a defendant in the sense contemplated by the constitutional prohibition.’ In Posinski v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co., 376 Ill 346, an injunction proceeding against a State agency, we stated (p 351): ‘Since the property of the State is involved, the State is directly and adversely affected by the suit and decree, and the decree must be held to be against the State.’ (See also Schwing v. Miles, 367 Ill 436, 444, and Noorman v. Department of Public Works and Buildings, 366 Ill 216; Moline Tool Co. v. Department of Revenue, 410 Ill 35, 37.)”

The City of Mt. Vernon case referred to in the George-off opinion, involved a special assessment for paving of streets. The court in that case stated specifically (at page 364):

“Although no judgment in personam is rendered against the owner, yet it cannot be said, that he is not a defendant, in view of the provisions made for his notification, appearance and contest against the confirmation of the assessment.”

It is noted that the Georgeoff case, in its conclusion, determines that the proceeding is not merely an in rem proceeding but is an action as against the property owner. While the Georgeoff case does not construe questions of federal immunity and requirements to be met in suing a federal corporation, it does establish a precedent that a tax deed proceeding in this State has been held to be a suit as against a sovereign and not merely an in rem proceeding. When we apply such decision to the facts in the instant case, the Georgeoff case appears to require a determination that the tax deed proceeding in the instant case was a suit against Federal Insurance Corporation. That being the case, the requirements to obtain jurisdiction over the Federal Insurance Corporation must be met including service of a copy of notice on the Washington, D. C. office. As stated in Sissman v. Chicago Title & Trust Co., 375 Ill 514, 32 NE2d 132 (at page 518) :

“The statute authorizing the instituting of a suit against a sovereign must be strictly construed in favor of the sovereign.”

While this conclusion may not be palatable to those seeking to acquire jurisdiction of government agencies as property owners, we feel that under the precedent in the Georgeoff case, this is the result which must obtain.

The only question which remains is whether section 1725(e) of the National Housing Act alters the conclusion in respect to this case. Said Section provides:

“Any real property of the corporation shall be subject to state, territorial, county and municipal, or local taxation to the same extent according to its value as other real property is taxed.”

In the Georgeoff case to which we have referred, there was no provision similar to such section 1725(e) of the National Housing Act. Said section 1725 does not in its provisions either directly or by implication put Federal corporations in the same category as private taxpayers. In United States v. Nelson, 91 F Supp 557, property involved belonged to the Reconstruction Finance Corporation and the act creating such federal corporation contained a provision similar to section 1725(e) of the National Housing Act. When the Cook County Treasurer in that case attempted to collect not only the real estate taxes, but interest and penalties, the Federal Government objected, and the court concluded that interest and penalties were not collectible. A similar conclusion was reached in Reconstruction Finance Corp. v. Texas, 229 F2d 9. It is, therefore, apparent that federal corporations are not to be treated the same as individual or private taxpayers with respect to enforcement procedures in collection of delinquent taxes.

We are conscious of the desirability of creating stability in the procedure involving tax deeds. The problem confronting the trial court and which is now before us, however, involves a federal insurance corporation. The parties admit that there was no service in accordance with the provisions of section 1725(c) which required a service of a copy of process by registered or certified mail to the corporation at Washington, D. C. Such mailing of the copy of process was a requirement incorporated in the very Act providing that the Federal Insurance Corporation may be sued. We must, therefore, conclude that the notice required by law has not been given since the federal statute was not complied with (Regan v. Kroger Grocery & Baking Co., 386 Ill 284, 299, 54 NE2d 210). This being the case, the order of the Circuit Court of Cook County should be reversed.

The judgment of the Circuit Court of Cook County is hereby reversed and cause is remanded to the Cook County Circuit Court. The parties have stipulated that there remains only a problem of disposition of proceeds of the sale of the real estate in this cause. Tax buyer has been reimbursed and the net equity resulting from the sale in the sum of $25,000 has been deposited with the Clerk of the Cook County Circuit Court. The Circuit Court of Cook County is, therefore, directed to order disbursement of the sum of $25,000 on deposit with the Clerk of such Court to Federal Savings and Loan Insurance Corporation.

Reversed and remanded with directions.

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