text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Russell, Defendant-Appellant.
    Gen. No. 69-138.
    Second District.
    March 11, 1970.

      Robert J. Bourell, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of Wheaton, and A. E. Botti, Assistant State’s Attorney, for appellee.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant was charged with speeding, tried be-, fore the court, found guilty, fined $25 plus $10 costs, and appeals.

The evidence consisted of the testimony of two State troopers. Trooper Quist testified that he parked his squad car, which had a radar unit attached, on Route 64 about one-quarter of a mile east of the Pheasant Run Motel entrance. The radar equipment had been tested for accuracy prior to and shortly after the occurrence in question and was in good operating condition on both occasions. The defendant’s car was clocked at 76 m. p. h. in a 55 m. p. h. speed zone. This information was relayed, by radio, to Trooper Scalf in a second squad car, called the “catch” car, which was parked at the entrance to the motel. The defendant was stopped and given a ticket for exceeding the speed limit.

During cross-examination, Quist testified that his squad car was parked within 6 inches of a speed limit sign which had marked upon it, “Speed Limit 55 m. p. h.” At the moment this answer was given, the defendant moved for judgment for the defendant based upon section 49.01. The motion was denied. Thereafter, Scalf testified, was not cross-examined and the State closed proofs. No evidence was introduced by the defendant and the court found for the State.

Section 49 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95 1/2, § 146) sets forth the general speed restrictions for public highways within this State. The maximum speed limit, outside of an urban district, is 65 m. p. h. The location in question will be considered such an area since the State has not, by way of argument or evidence, controverted the defendant’s position on this point.

Section 49.01 of the same Act allows the Department of Public Works and Buildings, after an engineering and traffic investigation, to alter the speed restrictions by either increasing or decreasing the limit that is generally prescribed by law. This determination becomes effective “when appropriate signs giving notice of the limit are erected . . . along such part or zone of the highway.” (Emphasis added.)

In 1959, this section was amended to include:

“Electronic speed-detecting devices shall not be used within 500 feet beyond any such sign in the direction of travel; if so used in violation hereof, evidence obtained thereby shall be inadmissible in any prosecution for speeding.” (Emphasis added.)

The briefs and arguments before this Court were chiefly centered about whether the testimony of Quist, who monitored the radar speed-detection unit within 500 feet of a speed limit sign, was admissible.

It is the defendant’s position that “any such sign,” emphasized above, refers to “appropriate signs,” also emphasized above, which is plural and therefore the legislature intended the provision with regard to the placing of electronic speed-detecting devices to mean any sign which denotes the speed limit.

The State argues that the prohibition against the use of such devices is applicable only to one sign, that being the first sign, in what may prove to be a series of signs, upon entry into a changed speed zone.

Without deciding between these two interpretations, but for the purpose of this opinion, we still must reverse, since the State failed to meet its burden of proof upon the evidence introduced.

As stated previously, the defendant, during cross-examination of Trooper Quist, established that the electronic device was being operated within 6 inches of a speed limit sign. Upon receiving this answer, the defendant immediately moved for judgment on behalf of the defendant. This was premature since the State had not closed its proof and a motion to strike Trooper Quist’s testimony would probably have been more appropriate since it was based upon section 49.01. Nevertheless, an affirmative defense was placed in issue which should have put the State on notice that it would have to sustain the burden of proof on this issue, as well as the elements of the offense involved. See, People v. Powers, 89 Ill App2d 120, 122, 233 NE2d 93 (1967). The denial of the motion by the trial court did not relieve the State of its burden.

The State draws our attention to the further testimony of Quist, elicited during cross-examination, which was as follows:

“Q. Officer, you testified that there are posted speed limit signs along Route 64?
“A. That is correct.
“Q. And what are those speed limit signs?
“A. 55 miles per hour.”

and also calls our attention to an answer given by Trooper Scalf which was:

“A. I was working radar out by Pheasant Run and got a call from Trooper Guist (sic) that there was a white Chevrolet, 1961, two-door hard top, doing 76 miles per hour in a 55-mile zone. I stopped the car.”

Based upon the above, the State claims that “the People met their burden by showing that although the radar equipment was 6 inches to the west of ‘a’ 55 mile per hour speed sign, there were other 55 mile per hour speed signs along Route 64, and that the defendant was not entering a different speed zone when he was observed by the radar device.”

The fact that there were other 55 m. p. h. speed signs along Route 64 does not establish whether the one in question was or was not the first in a series of such signs. The record does not disclose if these other signs were to the east or to the west of the one in question and we cannot conclude, as the State does, that this particular sign was not the first of a series of like signs.

In another portion of its brief, the State argues, “(T)here is no evidence in the record that the sign in question reduced the speed from 65 miles per hour. This conclusion was defendant’s.”

Since it is the State’s position that the prohibition called for in the quoted section of the statute applies only to the first sign in what may prove to be a series of signs, then the specific sign in question becomes of paramount importance, especially when the defendant placed in issue his affirmative defense based upon section 49.01. The burden was on the State, under its own interpretation of the statute to prove that the sign in question was not the first in a series. By its own statement, it admits that there was no evidence in the record (and we agree from our review) that the sign reduced the speed. The point is that there should have been some evidence on the part of the State, once the defense was raised, to show that the sign was not the first in a series. Having failed to do so,' the State, even on its own theory of interpretation of the statute, did not meet its burden of proof to overcome the affirmative defense and therefore the judgment must be reversed.

Judgment reversed.

DAVIS, P. J, and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Theodore V. Panker, Defendant-Appellant.
    Gen. No. 69-188.
    Second District.
    March 11, 1970.

      Glaeser, Burstein and Horsky, of Dundee, for appellant.
    William R. Ketcham, State’s Attorney of Kane County, of Geneva, and W. Ben Morgan, Assistant State’s Attorney, of Elgin, for appellee.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant, Theodore V. Panker, was charged with the crime of forgery, tried before a jury and found guilty. The trial court, after denying a new trial and probation, sentenced the defendant for a term of 1 to 4 years in the Illinois State Penitentiary.

On appeal, it is contended that the following errors occurred: (1) that defendant was denied due process of law in that (a) the court’s denial of defendant’s motion for a continuance had the effect of depriving him of the right to the effective assistance of counsel and (b) the court’s denial of defendant’s motion for a continuance was an abuse of discretion; (2) the prejudicial conduct of the trial court throughout every stage of the proceedings deprived the defendant of a completely fair and impartial trial; (3) the prejudicial conduct of the prosecutor deprived the defendant of a full, fair and impartial trial; and (4) the court erred in denying motion for mistrial when the word “innocent” was discovered on the inside of the jury box.

Our first consideration is whether the court’s denial of defendant’s motion for a continuance had the effect of depriving the defendant of his right to the effective assistance of counsel and was an abuse of judicial discretion.

The record discloses that the defendant, along with a codefendant, were charged with forgery in the same indictment. On May 20, 1968, the defendant and his privately retained counsel appeared before the trial court for arraignment where the following transpired:

Mr. Vogel: “We are making a plea of not guilty at
this time, your Honor.”
The Court: “Asking for a Jury trial?”
Mr. Vogel: “Asking for a Jury trial. And it is my
understanding that the codefendant is up on the 3rd and intends to present some motions.
“So at this time I would ask the Court to make the next date for this matter also June 3rd, at which time I will present any pretrial motions that I will have.”
The Court: “June 3rd.”
Mr. Vogel: “9:30, your Honor?”
The Court: “9:30. . . .”

On the morning of June 3, 1968, both defendants, the attorney for the codefendant and an assistant State’s Attorney, appeared before the court, but defendant’s counsel was not present. At this time, the following occurred:

The Court: “Who did you say you represented?”
Mr. Zak: “Defendant Magro.”
The Court: “Panker, who is your lawyer?”
Defendant Panker: “JohnVogel.”
Mr. Zak: “He contacted my office. He sent me
a copy of discovery motions and advised — asked that I advise the Court that he’d not be able to make an appearance here. I have a copy of a motion and order. I don’t have any originals.”
Mr. Dondanville: “If the Court please, these matters were set today for the filing of motions by defense counsel.”
The Court: “You got a motion?”
Mr. Zak: “I have my own motions, yes, your
Honor. I served the State’s Attorney with them. . . .”

The codefendant’s motions were filed, including a motion of severance, and the State was given 30 days to reply. Subsequently, the motions were allowed. Having concluded the matters before it, pertaining to the codefendant, the court then directed its attention to the defendant and the following transpired:

The Court: “As far as your lawyer is concerned, I am just about ready to revoke your bond.and put you in jail; that is, until he shows up.
“And your bond is revoked and you are committed to the custody of the Sheriff. That is the only way I know how to get a Chicago lawyer to show up.”
Mr. Dondanville: “I will prepare an order.”
The Court: “Advise this man’s lawyer that he is in jail until his lawyer shows up out here and takes care of him. . . .”

The defendant’s attorney appeared later that morning and the following took place:

Mr. Vogel: “Your Honor, at this time I move that the bond forfeited this morning be reinstated and the prisoner be released from the custody of the Kane County Sheriff.”
The Court: “All right; we will vacate the order that we entered this morning, set the case for trial at 1:00 o’clock this afternoon and pick a Jury at that time.
“Draw the order so the Sheriff can release him. . . .”

The record reveals that on the afternoon of June 3, 1968, the voir dire proceedings were commenced and that during these proceedings, the defendant’s attorney stated that he would like the record to show that the defendant was reporting not ready. After the jury had been selected, the defendant’s attorney requested a continuance in order to determine how long one of his witnesses was going to be in the hospital. The court responded that it wanted counsel to make his opening statement and that he could work out what he was going to do during the evening recess.

On June 4, 1968, counsel for defendant, presented to the court an affidavit for continuance. The affidavit was subsequently file-stamped on June 6, 1968. The affidavit stated that counsel for defendant did not appear in the early morning of June 3, 1968, because of his being engaged in a jury trial in another county, but that said trial did not proceed for failure of defendant to appear. The affidavit further stated that the affiant was unprepared to try this matter and had had only 14 days from arraignment to trial date and was under the impression that on June 3, 1968, a date would be set for trial which would be some date reasonably convenient to his prior commitment in court. The record also indicates that defendant and his counsel had met for the first time on May 17,1968, and had seen each other 2 or 3 times prior to June 3,1968.

The general rule is that the granting of a continuance in a criminal case, on the ground of inade-

quote time for necessary preparation, is within the province of the trial court’s discretion. The People v. Kenzik, 9 Ill2d 204, 212, 137 NE2d 270 (1956). It is also the rule, as expressed in The People v. Dunham, 334 Ill 516, 166 NE 97 (1929) at page 521:

“No person accused of a serious crime should be forced to trial without a reasonable opportunity to employ counsel and properly prepare his defense. . . . Upon a proper showing that for want of time counsel has not been able to properly prepare the case, ... or that the cause is not ready for trial for want of opportunity for preparation owing to no fault of the accused, the court, in the exercise of a wise discretion, should postpone the trial to a later day in the term or continue the cause, if necessary.” (Citations omitted.)

The court, in People v. McNeil, 102 Ill App2d 257, 261, 243 NE2d 576 (1968), in quoting from The People v. Hambleton, 399 Ill 388, 393, 78 NE2d 293 (1948), stated:

“A defendant in every criminal case is entitled, under the law, to a reasonable time and full opportunity to prepare for his trial, and that right is one guaranteed to him by the constitution. Innocent or guilty, or whatever his position might be, he is entitled to sufficient time to prepare his defense. . . . There is not one law for an innocent man and another for a guilty man.”

In the instant case, the record shows that only 14 days had passed since the defendant’s arraignment and no previous continuances had been requested. There is no showing that defendant or his attorney had any notice whatever that the matter was going to proceed to trial on June 3, 1968. On the contrary, as can be seen from the quoted portion of the record taken at the time of the arraignment, together with the prosecutor’s statement on the day of trial, June 3, 1968 was set for pretrial motions and not as the date of trial on the merits.

While we cannot condone the fact that defendant’s counsel was not personally present in court on the particular morning set for the filing of pretrial motions, this omission on the part of defendant’s counsel should not work to the detriment of the defendant’s rights.

We conclude, under the circumstances of this case, that the trial court should have allowed defendant’s counsel ample opportunity to prepare for trial and failure to do so constituted reversible error. Having reached this conclusion, it is unnecessary for us to rule upon the other issues raised by the defendant in this appeal.

The judgment of the trial court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jesse James Dandridge, Defendant-Appellant.
    Gen. No. 11,141.
    Fourth District.
    March 18, 1970.

      Gary L. Haddock, Assistant Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   TRAPP, J.

Defendant was convicted of robbery by jury verdict and was sentenced to an indeterminate term of not less than 12 years and not more than 20 years. His post-trial motions were denied and he appeals.

An issue upon appeal is framed in terms of the court’s exercise of discretion in permitting two witnesses, called by the prosecution, to be designated court’s witnesses, and the ensuing details of cross-examination by the State’s Attorney. The witnesses, Evans, aged 15, and Taylor, aged 18, had been charged and found guilty of the identical offense for which the defendant was being tried and at the time of this trial they were serving sentences imposed.

The defendant testified that he was present in the bakery at the time but denied that he had any knowledge that Evans and Taylor planned to rob, and denied that he had participated in the robbery.

Upon direct examination by the State’s Attorney, Evans and Taylor each testified that they decided to rob the bakery after entering and discovering that only two women cashiers were present. They testified, in substance, that defendant entered the bakery after they did, that he had no knowledge of the scheme to rob and did not participate in the acts of robbery. It is agreed that defendant did receive some six ($6) dollars of the proceeds of the robbery, but Evans testified that this was to keep defendant from talking. In each instance, as this aspect of the testimony developed, the State’s Attorney made a motion that Evans and Taylor be considered to be court’s witnesses for the reason that each had made a statement to investigating officers which contradicted their testimony and which stated that defendant had participated. Defense counsel objected to the respective motions.

In each instance the witness’ statement was shown to the court and defendant’s counsel out of the presence of the jury. The court agreed with the State’s Attorney that the statements showed a definite conflict between the testimony and the statements of the witnesses upon the issue of the defendant’s participation in the robbery. Defense counsel pointed out that each statement was unsworn to.

The court overruled the defendant’s objection, and the State’s Attorney thereupon cross-examined each witness upon these respective statements to police officers as to details showing that the defendant had schemed with them to rob the bakery, and had participated in the robbery by holding one of the women cashiers.

This case must be reversed upon the principles and rules stated in The People v. Hundley, 4 Ill2d 244, 122 NE2d 568, and the authorities collated in that opinion, and followed by the Supreme Court in The People v. McKee, 39 Ill2d 265, 235 NE2d 625. In Hundley and McKee, a witness charged as an accomplice was permitted to be examined as a court’s witness and the State’s Attorney cross-examined upon the details of a prior statement to police which developed the guilt of the defendant through the unsworn statement of the witness out of the presence of the defendant. In each case the Supreme Court reversed and remanded.

McKee points out that it is necessary to make the distinction and to understand the difference between impeachment and the right to cross-examine as a court’s witness and points out that the two concepts may not be used interchangeably. It is said that the purpose of impeachment is to destroy credibility rather than to prove the facts contained in a statement made out of the presence of the court, and the court said (39 Ill2d 265, p 270):

“. . . Legally it is not evidence of defendant’s guilt and cannot be received as proof of the fact at issue. . 1

The purpose in calling a witness as a court’s witness is to reach the truth upon the sworn testimony in open court of a person who is an eyewitness and whose testimony is necessary to obtain justice, but the court is properly shown that no party should be required to vouch for his credibility. The cited cases firmly point out that inadmissible statements cannot be used to prove guilt through the guise of impeachment. As stated in The People v. Grigsby, 357 Ill 141, 191 NE 265:

“. . . If the witness admitted making the previous statement, it would prove nothing except that he, an admittedly unreliable witness, had said so.”

Here, the witness, Evans, testified that he made the statement to the police in terms which he hoped would enable him to “walk away,” i. e., be released by the police.

The record here, as in Hundley and McKee, suggests that the purpose was not merely impeachment of Evans and Taylor, but rather to introduce unsworn statements as testimony of defendant’s participation in the crime. The record colloquy between court and counsel shows that Evans and Taylor were made court’s witnesses upon the basis that while their sworn testimony tended to exculpate the defendant, they had made unsworn statements outside the presence of the defendant which contradicted such testimony.

Under the cited authorities, the designation of Evans and Taylor as court’s witnesses and the purported impeachment ensuing was prejudicial error. We note that such evidence was held to be prejudicial in McKee, even though the conviction was at a bench trial.

The prejudicial aspect of the procedure followed is aggravated in that we can find no admonition by the court, or any instruction given which limits the purpose and effect of the purported impeachment to the question of the credibility of Evans and Taylor. The People v. Tunstall, 17 Ill2d 160, 161 NE2d 300; People v. Svizzero, 84 Ill App2d 251, 228 NE2d 604. Upon this record the jury could take the statements ostensibly impeaching Evans and Taylor as evidence of defendant’s guilt.

We are required to comment upon the presentation of this appeal. It is the function of the brief and argument filed in this court to present the issues to be reviewed. Whether the record is to be searched by the court is for the court to determine. A search of the record by the court is not to be requested by counsel as a form of laborsaving device.

Since the cause must be reversed and remanded for the reasons stated, it is not necessary to consider the other issues raised.

Reversed and remanded.

CRAVEN, P. J. and SMITH, J., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Daniel W. McCall, Defendant-Appellant.
    Gen. No. 11,144.
    Fourth District.
    March 18, 1970.

      Gary L. Haddock, Assistant Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, J.

The defendant was convicted in a jury trial for the offense of armed robbery and sentenced to the penitentiary for a period of 15 to 30 years. He appeals from this judgment and sentence on two grounds: (1) That the evidence is not sufficient to establish guilt beyond a reasonable doubt and (2) that the punishment imposed by the trial court is excessive and should be reduced upon appeal.

At the conclusion of the hearing in mitigation and aggravation, the court asked for a recommendation. The State’s Attorney recommended 20 to 30 years — defense counsel recommended 10 to 20 years. The defendant testified in his own behalf during this hearing. It appears that in 1964 he was convicted of armed robbery and sentenced from 1 to 20 years. He was paroled in October 1966. On June 5, 1967, he was sentenced to three months at the State Farm for driving without a driver’s license. He was returned to the State Penitentiary on August 22, 1967, as a parole violator and was again paroled on August 19, 1968. On November 13, 1968, he committed the offense of which he now stands convicted. Following his conviction and while he was awaiting a motion for new trial and this hearing, one Owens, who was one of the principal witnesses against him on trial, was brought into the county jail on another matter and put in the cell with him. While there the defendant obtained from Owens a statement in writing which he prepared indicating that Owens had committed the robbery rather than the defendant. The witness testified he had told the truth on the witness stand in the trial, that the statement was obtained from him by coercion, threats and fear, that he and the defendant had been together in the penitentiary previously and he was afraid of the defendant.

In the face of this record, there is not a solitary word offered by way of mitigation except the bald statement that it is the practice in Macon County that “A guilty man has a right to a trial by jury, but if he is foolish enough to exercise that right, then he will pay for it by receiving an excessive penalty.” Suffice it to say this record neither supports the conclusion that this is the practice in Macon County nor does it support the conclusion that this punishment is excessive. The burden is on the defendant to establish mitigating circumstances. People v. Nelson, 41 Ill2d 364, 243 NE2d 225. Unless it can be said that there has been a manifest abuse of discretion, a reviewing court will not substitute its judgment for that of the trial court. People v. Bonner, 37 Ill2d 553, 229 NE2d 527.

Turning now to the sufficiency of the evidence, it appears that about 1:40 a. m. a lone man wearing a ski mask, blue jeans, and a wool plaid jacket, which was offered in evidence, and armed with a revolver which looked like People’s Exhibit No. 2, held up a service station east of Decatur and took some $38 to $40. The station operator could not identify the defendant because of the ski mask. He testified that he appeared to be about 5' 9" tall and some 17 or 18 years old. The robber put the money in a brown bag and was in the station only about 5 minutes. A witness Harrison and the witness Owens testified against the defendant and stated that they were cruising around the countryside with him and wound up some 100 yards south of the service station when the defendant said he had to go to the bathroom. Defendant got out of the car and was gone for some 3 to 5 minutes and returned carrying a brown paper bag. Harrison saw him thumbing through money in the bag and stated that the defendant had a revolver similar to Exhibit No. 2. When they arrived in Decatur, they saw a police car and when the police pulled over, defendant jumped out of the car and ran. The police officer testified that he was wearing a plaid jacket. Owens testified to substantially the same thing. The police officers arrested the defendant in Taylor-ville and when they went to his room they found a plaid jacket, which was identified by some of the witnesses as similar to the one that the robber wore, as well as a revolver. There was the usual semantical difference in details and it is apparent from the statement here made that the innocence or guilt of this defendant rested with the jury. No one positively identified the defendant as the robber. The testimony as to the revolver, the plaid jacket, and the defendant’s flight when stopped by the police officers are circumstances upon which a jury might reasonably convict the defendant. An examination of the evidence in this case and the conduct of the defendant suggest that there can be no reasonable doubt of his guilt.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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


author: EBERSPACHER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ezell Thomas, Defendant-Appellant.
    Gen. No. 67-65.
    Fifth District.
    October 17, 1969.

      Carl W. Lee, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (John F. O’Connell, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from the Circuit Court of St. Clair County from a judgment entered upon a jury verdict finding the defendant, Ezell Thomas, guilty of the offense of murder.

The defendant, in his effort to reverse the judgment, contends: (a) That the defendant’s right to a fair trial and impartial jury was jeopardized by the Court’s failure to confine the jury; (b) that the Court erred in admitting evidence obtained as a result of an illegal search and seizure; (c) that certain identification testimony was based upon a pretrial identification, the circumstances of which constituted a denial of due process of law to the defendant; and (d) that the State has failed to prove the defendant guilty beyond a reasonable doubt.

The basis of the defendant’s first argument is that the jury was allowed to separate over objection by the defendant, after their selection. The defendant argues that a defendant in a capital case has the right to have the jury confined in the custody of sworn officers of the Court throughout the course of the trial. Jumpertz v. People, 21 Ill 375 (1859) is cited for our consideration.

It appears from the record that the jurors had been selected, but had not been sworn to try the issues, when allowed to separate to their respective homes over the Memorial Day weekend. We find the defendant’s reliance on Jumpertz v. People, supra, misplaced for several reasons. First, the trial within the meaning of Jumpertz does not commence until the jury is impaneled and sworn. People v. Watson, 394 Ill 177, 68 NE2d 265. In People v. Schanda, 352 Ill 36, 185 NE 183, the Court held that jurors who had been selected but had not been sworn to try the cause were not required to be kept together.

We further note that the Code of Criminal Procedure, chapter 38, section 115-4, Ill Rev Stats, which became effective January, 1964, made no provision for the keeping of a jury together except when it had retired to consider its verdict. The trial of this cause was commenced May 31, 1966. The scope of the Code of Criminal Procedure is set forth in section 100-2: “These provisions shall govern the procedure in the courts of Illinois in aU criminal proceedings except where provision for a different procedure is specifically provided by law.”

We also note that in 1967, or after the trial, section 115-4 was amended to give the Court discretionary power to segregate the jury. The record also indicates that after the jury was selected, but before it was sworn, the Court permitted the jury to separate after being admonished not to discuss the case. The record further indicates that the Court personally contacted the news media and requested them not to mention the case before the commencement of the trial. Under the circumstances the Court did not err in exercise of its discretion. There is no allegation nor showing of prejudice to the defendant.

The second contention of error involves the admission into evidence of a pistol and bullet clip. The defendant’s argument is twofold. First, that the trial court erred in its failure to hear the defendant’s pretrial motion to suppress evidence. Second, that the search and seizure was pursuant to the coerced consent of the defendant’s mother.

In regard to the defendant’s first argument, the record discloses that counsel was appointed to defend the defendant on September 17, 1965, and in October of 1965 cocounsel was appointed. The record further discloses that the case was set for trial on October 5, 1965, November 29, 1965, March 14, 1966, and May 16, 1966, and each time continued upon motion of the defendant. On the day the cause was called for trial, the defendant made an oral motion to suppress the pistol as evidence. The Court denied the defendant’s motion for a pretrial hearing due to the tardiness of the defendant’s motion, and its failure to be in writing as required by chapter 38, section 114-12. The trial court was correct in its ruling. People v. Johnson, 38 Ill2d 399, 231 NE2d 447.

The defendant’s second argument is also without merit. Prior to the admission of the pistol and bullet clip into evidence, a hearing was conducted by the Court outside the presence of the jury. The uncontradicted testimony offered during the hearing was that the defendant’s mother produced the weapon and clip voluntarily at the request of two police officers. Inasmuch as the defendant resided with his mother she had a possessory interest in the house, and as such could authorize a search. People v. Perroni, 14 Ill2d 581, 153 NE2d 578; People v. Speice, 23 Ill2d 40, 177 NE2d 233. The trial court after the hearing determined the consent was voluntary and not coerced. The defendant’s assertion that the consent of the defendant’s mother was coerced is sheer conjecture and without support either in the record or from legitimate inference. Accordingly, the Court’s finding should not be disturbed. People v. Armstrong, 41 Ill2d 390, 243 NE2d 825.

The defendant next contends that the identification testimony of a certain witness was based upon a pretrial identification under circumstances which were so prejudicial as to amount to a denial of due process of law to the defendant. In this regard the defendant has relied upon the recent United States Supreme Court cases of Stovall v. Denno, 388 US 293 (1967); Simmons v. United States, 390 US 377 (1967).

The State in its brief has answered that the case at bar was tried prior to Stovall, and that Stovall has only prospective application. Stovall v. Denno, 388 US 293; People v. Robbins, 88 Ill App2d 447, 232 NE2d 302. The existing law on the date of this trial was that questionable identification procedure does not render the evidence of identification incompetent, but affects only its weight and credibility. People v. Brinkley, 33 Ill2d 403, 211 NE 2d 730; People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599.

It is appropriate to note also the apparent inadvertence under which the alleged improper pretrial identification took place. It appears from the record that rather than a prearranged lineup, that the witness viewed the defendant as the defendant left the courtroom following one of the numerous continuances of the trial setting. It is also appropriate to note that neither the witness nor the State placed any particular reliance upon the pretrial viewing. The witness merely candidly testified that the next time he observed the defendant following the occurrence was outside the courtroom on May 17, 1966.

The last allegation by the defendant is that the State failed to sustain its burden of proving the defendant guilty beyond a reasonable doubt. Numerous conflicts and inconsistencies in the evidence have been drawn to our attention by the defendant. However, from our examination we find that such conflicts and inconsistencies are on par with the quantity normally found in a record of its size. Moreover, the jury is the trier of facts and has the responsibility for the determination of the credibility of witnesses and resolving any conflicts that may appear in the evidence. People v. Underhill, 38 Ill2d 245, 230 NE2d 837; People v. Scott, 34 Ill2d 41, 213 NE2d 521.

The record contains testimony of two acquaintances of the defendant, who were subsidiarily involved in the transaction which eventually led to the death of the victim. Each testified that the defendant shot the victim. A disinterested third person observed the crime and identified the defendant as the person responsible for the shooting. The defendant’s girl friend and her mother each testified that the defendant made certain admissions to them of the offense. An inmate of the county jail, who was confined with the defendant prior to the trial, testified that the defendant confessed the crime to him. The defendant’s defense of alibi disintegrated during the course of the trial. In substance, it is our opinion that the verdict is supported by the evidence, and that the State has sustained its burden.

This Court appreciates the thoroughness and efficiency displayed by appointed counsel in the prosecution of this appeal.

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

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary Kuykendall and Kenneth Bell, Defendants-Appellants.
    Gen. No. 68-98. (Abstract of Decision.)
    Fifth District.
    February 10, 1970.
    Rehearing denied and supplemental opinion March 31,1970.
    Ivan A. Elliott, Jr., and W. R. Endicott, of Carmi, for appellants;
    Alton A. Greer, State’s Attorney, of Shawneetown, for appellee.
   Opinion by JUSTICE CLARK. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Eugene Wooff, Defendant-Appellant.
    Gen. No. 69-81. (Abstract of Decision.)
    Fifth District.
    February 16, 1970.
    Rehearing denied March 25, 1970.

      Hoagland, Maucker, Bernard & Almeter, of Alton (Robert B. Maucker, Elmer H. Bernard, and William H. Hoagland, of counsel), for appellant;
    William J. Scott, Attorney General of State of Illinois, of Chicago, Warren K. Smoot, Assistant Attorney General, and R. W. Griffith, State’s Attorney, of Edwardsville, for appellee.
   Opinion by JUSTICE EBERSPACHER. Not to be published in full.


text:
    The Housing Authority of the County of Franklin, Illinois, for the Use and Benefit of the Smith-Alsop Paint and Varnish Co., Inc., Plaintiff, v. Joseph Holtzman, et al., Defendants, and The Smith-Alsop Paint and Varnish Co., Inc., a Corporation, Plaintiff, v. The Housing Authority of the County of Franklin, Illinois, et al., Defendants.
    Gen. No. 68-138.
    Fifth District.
    February 17,1970.
    Rehearing denied March 25,1970.

      Dix, Dix, Patrick, Ratcliffe & Adamson, of Terre Haute, Indiana, and Trobaugh and Brondos, of West Frankfort, for appellant.
    Robert S. Hill, of Benton, for Holtzman & Silverman and Insurance Company of North America, appellees.
   EBERSPACHER, J.

The plaintiff, the Smith-Alsop Paint and Varnish Company, Inc.; appeals from a decree entered by the Circuit Court of Franklin County. The original suit, as well as this appeal, involves the consolidation of two separate actions. The first suit was filed by the plaintiff hereinafter referred to as Smith-Alsop, pursuant to the provisions of chapter 82, section 23, demanding a lien upon the funds due Holtzman & Silverman, a copartnership from the Housing Authority of Franklin County. The second suit was filed pursuant to the provisions of chapter 29, sections 15 and 16, Ill Rev Stats 1965, demanding relief from Holtzman & Silverman as principal and the Insurance Company of North America as surety upon a performance and payment bond. Relief was also asked against Harold Kennedy, Roy Kennedy and John Boyd, doing business as Kennedy Painting and Decorating Service as the direct recipient under contract with the plaintiff on materials used upon a public building project in West Frankfort, Illinois.

The two causes were consolidated for trial. After a trial with the court sitting without a jury, the Court entered judgment against the plaintiff in each of the law and chancery proceedings insofar as relief was sought against the defendants, Holtzman & Silverman and the Insurance Company of North America, and allowed plaintiff recovery against the Kennedy firm. The plaintiff, Smith-Alsop has appealed from the judgment.

The plaintiff has presented two issues to this Court for review. The first is whether the judgment of the trial court was contrary to the law and the evidence in failing to give the plaintiff a lien upon public funds under section 23, chapter 82, and second whether the judgment of the trial court is contrary to the law and the evidence in failing to allow recovery on the payment bond pursuant to sections 15 and 16 of chapter 29.

The facts as may be gleaned from the record are as follows: On October 1, 1963, Holtzman & Silverman, a partnership, as “Contractor,” entered into a contract for complete construction with the Housing Authority of the County of Franklin, as “Local Authority.” The contract between the “Contractor” and the “Local Authority” provided that the “Contractor” would furnish to the “Local Authority” a performance and payment bond as security for the faithful performance of the contract and for the payment of all persons, firms or corporations to whom the Contractor may become legally indebted.

Pursuant to the contract of October 1, 1963, Holtzman & Silverman delivered to the Local Authority a Performance and Payment Bond executed on October 1, 1963, wherein Holtzman & Silverman, was principal, and the Insurance Company of North America, was surety.

On January 16, 1964, Holtzman & Silverman, as Prime Contractor, entered into a contract with Kennedy Painting & Decorating Service, as Subcontractor. Under that contract the Subcontractor agreed to furnish all labor, material, equipment and services to complete work under section II for the construction of Project Ill. 61-1 for the Housing Authority of the County of Franklin. Under the Contract the Subcontractor was to do two things: (1) furnish the sheetrock and necessary labor for its installation, and (2) furnish all the paint required and the necessary labor for the application of that paint. The total contract price was $149,000, which was divided as $87,500 for the sheetrock and installation and $61,500 for the paint and its application.

On January 28, 1964, an agreement was entered into between the West Frankfort Paint & Wallpaper Store and Harold Kennedy, Kennedy Painting and Drywall Co., whereby the West Frankfort Paint & Wallpaper Store agreed to furnish and Kennedy to use Smith-Alsop Paint and Varnish products on the Public Housing Project Ill. 61-1 in West Frankfort, Illinois. Plaintiff, Smith-Alsop, is an Indiana Corporation authorized to do business in Illinois and it operates a store in West Frankfort, Illinois, under the trade name of West Frankfort Paint and Wallpaper Store. Pursuant to this agreement the plaintiff supplied to Kennedy paint and other necessary materials for use on Project Ill. 61-1. The plaintiff supplied paint and materials to Kennedy for which money is claimed owing from January 29, 1964, to September 30, 1964. It was stipulated at trial that Kennedy last performed work on Project Ill. 61-1 on October 12, 1964, at which time his contract was terminated by Holtzman & Silverman.

It also appears from the record that on April 30, 1964, the plaintiff furnished a statement to the Housing Authority that all materials furnished to Kennedy for use on the project were paid up to date as of April 30, 1964.

The date on which the last materials used on Project Ill. 61-1 were actually charged against the Kennedy account was on September 30, 1964. The amount of the balance on that date was $8,333.79.

The materials furnished by plaintiff to Kennedy for use on Project Ill. 61-1, the value of which remains unpaid, included paint which was consumed and became part of the Project Ill. 61-1 and materials used in the prosecution of the work which did not become a constituent part of the Project Ill. 61-1. The latter materials included paint brushes, scrapers, paint buckets, sandpaper, and other like items which did not become part of the project, these materials were wholly consumed in the prosecution of the work on the Project and were thereby rendered useless.

After Kennedy was terminated from Project Ill. 61-1 under his Contract, Holtzman & Silverman relet the Contract to Marvin Ferguson. Under that contract Ferguson completed all of the painting and drywall on the Project. The contract with Ferguson was in the amount of $31,885. For the work performed Kennedy received payment in the amount of $98,897.98. There was, therefore, a total cost of $130,782.98 to Holtzman & Silverman for the work that had been originally contracted at $149,000. Kennedy, apparently, did not seek additional payment after default.

The plaintiff contends that the judgment of the trial court was contrary to the law and the evidence in failing to give the plaintiff a lien upon the funds held by the Housing Authority under section 23, chapter 82.

The defendants assert that the lien of the plaintiff is limited to the amount due Kennedy from Holtzman & Silverman at the time the notices of the liens were given. The defendants further assert that Kennedy’s Contract had been properly terminated by Holtzman & Silver-man and that there was no credible proof that any balance was due to Kennedy.

The limitation of the suppliers’ lien has been concluded in Koenig v. McCarthy Const. Co., Inc., 344 Ill App 93, 100 NE2d 338. The Court stating in words that are appropriate to the facts of this immediate case.

“It is our judgment, therefore, that inasmuch as sec 23 of the Lien Act has been construed by our Supreme Court in the Gunther case, supra, to limit the liens of those furnishing materials to a contractor for a public improvement, to the amount earned and due to the contractor prior to his default, and since this section expressly provides that the term ‘contractor’ includes any ‘subcontractor,’ it is both reasonable and proper to conclude that persons, in the position of plaintiff, furnishing materials to a subcontractor, have no greater rights than persons furnishing materials to a contractor, and both are limited, in the assertion of liens, to the amount due their immediate contractors at the time notice of their liens is given. Any other construction would not only impose an absolute liability upon the original contractor not contemplated by the statute, but be contrary to established principles of law with reference to liens accruing under private contracts.”

The plaintiff in this cause was the supplier of material to a subcontractor to the contractor for a public improvement and is thus entitled to a lien under section 23, chapter 82 upon those monies due to the subcontractor from the contractor. See ILP, Mechanics’ Liens, § 67. There being no showing of any monies due to the subcontractor the decision of the trial court denying recovery on the statutory lien theory should be affirmed. Koenig v. McCarthy Const. Co., supra, Tison & Hall Concrete Products Co. v. A. E. Asher, Inc., 86 Ill App2d 34, 229 NE2d 137.

Plaintiffs urge that since there is an $18,217.-02 difference between the cost for painting and drywalling under the $149,000 Kennedy Contract and the amount actually paid the Kennedy firm ($98,897.98) and Ferguson ($31,885) for the same work, that the reasoning of the Supreme Court in Gunther v. O’Brien Bros. Const. Co., 369 Ill 362, 16 NE2d 890, supports plaintiff’s recovery from what plaintiff contends is a windfall to the contractor, and allows the contractor to profit by reason of the default of the subcontractor. The Koenig court rejected such an interpretation of Gunther and pointed out that section 23 of the Lien Act should not be interpreted in such manner as to impose a limitless liability upon the original contractor to make the original contractor “liable for all the financial follies and excessive contracts entered into by his subcontractors.” That the contractor may profit in this case by reason of Kennedy’s lack of substantial performance is not persuasive enough for us to impose a different rule than we imposed in the Tyson case, supra, particularly in view of the fact that the default of a subcontractor might also result in additional costs to the contractor. That the contractor could protect himself by requiring a performance bond from the subcontractor is likewise not persuasive, since plaintiff as supplier could likewise have required such assurance from either the subcontractor whom he supplied or from the contractor, or kept himself informed of the subcontractor’s ability to pay for the materials furnished.

The plaintiff further contends that the judgment of the trial court was contrary to the law and the evidence in failing to allow recovery on the bond pursuant to sections 15 and 16, chapter 29. The pertinent parts of the statute (which we refer to as the Bond for Public Works Act) are as follows:

Section 15, chapter 29, Ill Rev Stats — 1963:

“All officials, boards, commissions or agents of this State, or of any political subdivision thereof in making contracts for public work of any kind to be performed for the State, or a political subdivision thereof shall require every contractor for such work to furnish, supply and deliver a bond to the State, or to the political subdivision thereof entering into such contract, as the case may be, with good and sufficient sureties, and in an amount to be fixed by said officials, boards, commissions, commissioners or agents, and such bond, among other conditions, shall be conditioned for the payment of material used in such work, whether by subcontractor or otherwise.
“Each such bond is deemed to contain the following provisions whether such provisions are inserted in such bond or not:
“ ‘The principal and sureties on this bond agree that all the undertakings, covenants, terms, conditions and agreements of the contract or contracts entered into between the principal and the State or any political subdivision thereof will be performed and fulfilled and to pay all persons, firms and corporations having contracts with the principal or with the subcontractors, all just claims due them under the provisions of such contracts for labor performed or materials furnished in the performance of the contract on account of which this bond is given, when such claims are not satisfied out of the contract price of the contract on account of which this bond is given, after final settlement between the officer, board, commission or agent of the State or of any political subdivision thereof and the principal has been made/ ”

Section 16, chapter 29, Ill Rev Stats — 1963:

“Every person furnishing material or performing labor, either as an individual or as a sub-contractor for any contractor, with the State, or a political subdivision thereof where bond shall be executed as provided in this Act, shall have the right to sue on such bond in the name of the State, or the political subdivision thereof entering into such contract, as the case may be, for his use and benefit, . . .

Plaintiff urges that the statute gives to the subcontractor’s supplier a right to sue upon the bond given by the contractor to the Housing Authority, pointing out that both Fodge v. Board of Education, 309 Ill App 109, 32 NE2d 650, and Board of Education v. Pacific Nat. Fire Ins., 19 Ill App2d 290, 153 NE2d 498, commented upon the purpose of those sections. In the later the Court said at 19 Ill App2d, p 299, 153 NE2d, pp 503, 504:

“It is not disputed that paragraphs 15 and 16 (of Chapter 29) are remedial and were intended to protect subcontractors and materialmen for whom no right of mechanic’s lien exists against a public work. This being so, these paragraphs shall be read together in order to get the true intent of the legislature. Remedial statutes must be construed liberally, and.it will be presumed that the legislature did not intend the law to work a hardship or an injustice.”

Both cases involve parties that contracted directly with the contractor and thus cannot be said to be authority for the proposition that a supplier of a subcontractor is entitled to recover from the contractor and his surety on the bond.

In an annotation found in 92 ALR2d 1250, p 1255, it is stated that the rule “to the effect that a claim for labor or materials furnished to a subcontractor is within the coverage of a bond given by the principal contractor for the construction of a public improvement, pursuant to statutory requirement, to secure payment for the labor and materials employed or used in the performance of the contract” is supported by the great weight of the later decisions, and by footnote 5 includes Illinois, citing Board of Education v. Aetna Casualty & Surety Co., 305 Ill App 246, 27 NE2d 337. Examination of that case discloses that in that case a plaintiff who had sublet a part of the carpentry from the carpentry subcontractor was allowed to recover from the contractor and his surety on the bond but the statutory bond is not mentioned in the opinion, the statute is not mentioned or construed, and the case has never been cited in Illinois. We conclude that case was determined on a construction of the bond itself. It is significant too, that there the court noted the contractor had paid the full amount due on the carpentry subcontractor’s contract “but neither counsel make any argument as to the effect of this.”

In addition to its contention that it should recover under a proper interpretation of the Bond for Public Works Act, plaintiff also contends that here the actual bond which provided that the contractor was to satisfy “all claims arising out of the prosecution of the work under the contract” and that they would make “full payment to all persons supplying labor, services, materials or equipment in the prosecution of the work under the contract.” As a result, he urges that this case should be controlled by the opinion in State Toll Highway Commission v. Boyle & Co., 38 Ill App2d 38, 186 NE2d 390. In that case the bond itself and the general contract were interpreted as to permit recovery on the bond for a plaintiff who under a conditional sale contract had furnished equipment used on the work to the subcontractor. There the Court specifically pointed out that they were not attempting to interpret or construe the Bond for Public Works Act and at 38 Ill App2d 51, 186 NE2d 396, said:

“In this opinion we are not attempting to interpret or construe the statute. Once the principals and sureties have given a bond which satisfies the minimum requirements provided for in the statute the statute in a sense becomes functus officio. There is nothing to prevent the parties from entering into a contract and bond which go far beyond the statutory provisions, where they are entered into by parties competent to contract and they are not prohibited by law. The rights of the plaintiff here depend upon the meaning of the contract and bond. The statutory provisions concerning mechanic’s liens are not controlling in the present case.”

We cannot say that the above quoted language from the bond goes beyond the statutory provisions which are by section 15 incorporated into the bond. Furthermore, the contract itself required the bond, and made no reference to suppliers of subcontractors and although it permits the contractor to subcontract it provides “whenever used in any of the contract documents . . . , the ‘contract’ means the Contract extended by the Local Authority and the Contractor, of which these conditions form a part. The documents which comprise the contract are set forth in the contract form.” Among the documents set forth in the contract form is the bond. It is therefore evident that the parties intended that the contractor and its surety would be bound to pay only for material supplied to the contractor. The contract might have contained a specific provision obligating the contractor or its surety to pay for materials furnished a subcontractor, but it did not.

As a result, we are called upon to determine whether liability is imposed upon the bond in the case at hand by reason of the plain language of the Bond for Public Works Act, c 29, §§ 15, 16, Ill Rev Stats 1963. Defendants urge that the supplier of a subcontractor is not such a person as is defined in the Act pointing out that § 16 of the Act appears to be limited to those furnishing material “either as an individual or as a subcontractor for any contractor with the State or a political subdivision thereof” and that plaintiff did not furnish materials to any contractor with the political subdivision, but furnished them only to the Kennedy firm whose contract was with the contractor. As has been pointed out the two sections must be read together, Board of Education v. Pacific Nat. Fire Ins., supra, and the language of § 15 which is by statute made a part of the bond, provides for the payment of all persons “having contracts with the principal or subcontractors, all just claims due them under the provisions of such contracts.” Here the plaintiff had a contract with the subcontractor; that plaintiff had a just claim is evidenced by the judgment allowed plaintiff against the Kennedys.

Defendants point out that to interpret the Bond for Public Works Act as providing recovery on the bond could mean that the contractor would have liabilities limited only by the amount of his bond for indebtedness his subcontractors might incur under the guise of performing their contracts and the contractor could be liable even beyond the liability which he had on the subcontracts and could not protect himself by requiring bonds from his subcontractors, which the law does not require him to do. Such liability limited only by the amount of his bond could mean that the contractor could be deprived of any remuneration for his services and any profit, by the subcontractors incurring indebtedness equal to or exceeding his bond. In the present case such harsh result would not be reached. The contractor was fortunate enough to get the painting and sheetrocking done for less than was anticipated by the Kennedy subcontract, and the amount demanded has been brought into court by the Housing Authority. There is nothing in the record to indicate that the amounts paid by the contractor to the Kennedys and to Kennedys’ employees was paid on reliance of the statement plaintiff furnished the Housing Authority on April 30,1964.

We note that at the time the Legislature enacted the Bond for Public Works Act (1931), a supplier of a subcontractor had no lien against public funds under section 23 of the Lien Act; that it was not until 1935 that the Lien Act was amended to permit such supplier any lien. See 26 ILP, Mechanics’ Liens, § 67, and c 82, § 23, Ill Anno Stats Historical note. The Bond for Public Works Act has been amended on numerous occasions since 1935, and we therefore conclude that the Legislative intent was to provide a remedy in addition to the remedy provided by the Lien Act. The plain language of § 15 of the Bond for Public Works Act includes a supplier of a subcontractor; obviously the Legislature did not intend by § 16 to deny such a supplier the remedy provided for the right which they spelled out in § 15. Under the circumstances here present we conclude that a supplier of a subcontractor is such party as was intended to be included in the Bond for Public Works Act. That such holding might, on a different factual situation, be harsh or increase the contractual cost of public buildings, would be properly addressed to the Legislature. It is of little persuasion in this case.

The language of the Bond for Public Works Act states no limitation of liability on the contractor or his surety other than the amount of the bond. Defendants urge that if the Bond for Public Works Act is interpreted to include suppliers of subcontractors, the court should impose the limitation of the amount due the subcontractor, as Courts have imposed in the proceedings under the Lien Act. We do not consider that there is sufficient similarity in either the purpose or the language of the two Acts to here impose such liability on a recovery under the Bond for Public Works Act. In view of the broad language of the Bond for Public Works Act, if such limitation on liability is to be imposed on this factual situation, it is the proper function of the Legislature to amend the Act to impose it, rather than that of this Court.

Defendants further contend that even if these plaintiffs are entitled to proceed under the Bond for Public Works Act, they have not met the conditions of liability imposed by § 16. It provides that a person claiming “shall have no such right of action unless” he files his verified notice of claim within 180 days after furnishing the last item of materials, and “that no action shall be brought until the expiration of 120 days after the date of . . . the furnishing of the last item of materials except in cases where final settlement between” the Housing Authority and the contractor shall have been made prior to the expiration of the 120-day period. These contentions are resolved by the pleadings in which plaintiff alleged and defendants admitted the timeliness of the notice and commencement of the action. See Hudson v. Augustines, Inc., 72 Ill App2d 225, 234-5, 218 NE2d 510, 515. Furthermore, the trial court has made no finding of failure to meet the conditions of the Act, nor is prejudice shown (see § 16), nor does the record support defendants’ contention assuming such affirmative defense could stand in the face of the admissions found in the answers.

Defendants have also contended that the Housing Authority is not a political subdivision under the Bond for Public Works Act. We do not agree. Also see Chicago Housing Authority v. United States Fidelity & Guaranty Co., 49 Ill App2d 407, 409, 199 NE2d 217. The purpose of the Bond for Public Works Act is obviously to protect those who furnish labor or materials on public works as well as protect the tax money allotted for public works. It cannot be contended that a housing project built at public expense is not a public work.

In the present case we find an honest difference of opinion as to whether plaintiff can recover from these defendants. The record does not show any unreasonable and vexatious delay in defendants’ failure to pay plaintiff. As a result plaintiff is not entitled to interest on any recovery from these defendants.

We therefore reverse the judgment in the consolidated action and remand the cause for entry of a judgment consistent with this opinion.

Judgment reversed, cause remanded.

MORAN and GOLDENHERSH, JJ., concur.


text:
    Sarah M. Buschmann, Dorothy B. Matter, Robert Matter, Jr., Thomas Matter and North Central Oil Corporation, Plaintiffs-Appellees, v. Ruth T. Walsh and Thomas F. Walsh, Defendants-Appellants. In the Matter of the Application of David Dickey, County Treasurer and Ex-Officio Collector of Taxes, for Judgment and Order of Sale for Taxes ... of Lands and Lots Delinquent for the Year of Our Lord, 1956, ... in the County of Wayne, in the State of Illinois. Ruth T. Walsh, Petitioner, v. Suspense Division Orders, et al., Defendants. Sarah M. Buschmann, Dorothy B. Matter, Robert Matter, Jr., Thomas Matter and North Central Oil Corporation, Petitioners-Appellees, v. Ruth T. Walsh and Thomas F. Walsh, Respondents-Appellants.
    Gen. Nos. 68-128 and 68-129. (Consolidated.)
    Fifth District.
    February 18, 1970.
    Rehearing denied Walsh v. Suspense Division Orders March 25, 1970.

      Thomas Franklin Walsh, of Lincoln, for appellants.

      Richard C. Cochran and Joe Harrison, Cochran & Harrison, of Fairfield, for appellees.
   EBERSPACHER, J.

Plaintiffs brought two actions in the lower court to set aside a tax deed on a mineral estate issued to Ruth T. Walsh on May 31, 1961, by the County Clerk of Wayne County, Illinois. The first was an action in equity; the second was brought pursuant to section 72 of the Civil Practice Act. The trial court denied defendants’ motion to strike and dismiss the second amended complaints in both actions. Defendants elected to stand on their motions and judgment was entered in default in favor of plaintiffs in both actions. The judgment declared the tax deed to be null and void and removed it as a cloud upon plaintiffs’ respective titles.

Because both actions contain common parties, involve the same property and contain common issues of fact and law, they are consolidated for purposes of this review.

The record shows that in 1957 respondent, Ruth T. Walsh, purchased subject mineral interest at the 1956 Wayne County annual sale of tax delinquent real property. No redemption being made, a tax deed was ordered issued to her pursuant to section 266 of the Revenue Act on May 31, 1961, by the County Court of Wayne County and did so issue.

Section 266 provides that:

“Tax Deeds issued pursuant to .this section shall be incontestable except by appeal from the county court directing the county clerk to issue the tax deed. This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title.” Ill Rev Stats 1957, c 120, par 747.

Section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72) provides a procedure for obtaining relief from final orders, judgments and decrees. In construing these statutes the Illinois Supreme Court in Southmoor Bank & Trust Co. v. Willis, 15 Ill2d 388, 155 NE2d 308 (1958), stated at page 394:

“In light of the legislative purpose as manifested in these statutes, considered with reference to the reason for the enactments, we conclude that the legislature desired to render tax titles incontestable except by direct appeal, subject to the provisions of section 72 of the Civil Practice Act, whereby a uniform procedure was established for obtaining relief from all final orders, judgments and decrees within its purview.”

Subsection (1) of section 72 combines the various post-judgment and decree remedies heretofore available in legal, equitable and statutory proceedings and abolished any distinction between actions at law and suits in equity. See Southmoor Bank & Trust Co. v. Willis, supra. Thus, a suit in chancery to quiet title is not the proper proceeding in which to consider a collateral attack upon a judgment of the county court issuing a tax deed. Freisinger v. Interstate Bond Co., 24 Ill2d 37, 179 NE2d 608 (1962). Therefore, the action in equity should have been dismissed and the motion to dismiss that action was improperly denied. As a result, the default judgment entered in the chancery action is reversed and that action is dismissed.

The second action, a petition under section 72 of the Civil Practice Act, was filed approximately a month later than the first, and while the first was pending in the same court. It was filed in the original tax proceeding 51/2 years after the order for issuance and the issuance and recordation of the tax deed. The verified petitian as amended alleged that the tax deed was void, setting out the particulars, as were the proceedings in the court pursuant to which it was issued; it contained allegations of fraudulent procurement and fraudulent concealment of the deed by acts affirmative in character, designed to prevent and which did, in fact, prevent the discovery of the cause of action until defendant filed suit against the lessee of minerals in another county; it alleged that defendants, with knowledge, fraudulently misrepresented facts in her Petition for an order for a Tax Deed, and sufficient allegations to establish a wrongful intent and pattern of deception, as well as a lack of jurisdiction of the court which ordered the tax deed to issue. The petition further alleged that the judgment which purported to authorize the sale of the real estate for taxes was void because it was not in favor of the People and was not against the property described in the tax deed and not in substantially the form required by section 716, chapter 120, Ill Rev Stats.

Appellant Ruth Walsh attacked the petition by a section 48 (§48 Civil Practice Act) motion (1) on the grounds that there was another action (the equity action hereinbefore referred) pending in the same court for the same cause, (2) that the action was barred by a prior judgment (the judgments for delinquent taxes and ordering the issuance of the tax deed) and (3) that the petition was barred by the two-year limitation found in section 72(3) and alleging all pertinent allegations of the petition are factual conclusions or unsupported legal conclusions and state no cause of action, all accompanied by affidavits to the effect that the action was barred by the Revenue Act, chapter 120, § 747, and the two year limitation of § 72 (3) and that the allegations of the petition are legal conclusions of the pleader, and by a second affidavit by which affiant states that affiant knows that the County Court of Wayne County had jurisdiction to hear her petition for tax deed and to order the clerk to execute and deliver her court deed; that she fulfilled the requirements of the statutes and other conclusions of affiant too numerous to here detail.

During the pendency of the section 48 motion, petitioners filed a motion to consolidate the equity action and the section 72 proceeding, and the two cases were subsequently consolidated. The petition alleged, and the record bears out that the alleged judgments upon which respondent relied to bar the action were void. The petition further alleged and the record bears out that there was a fraudulent misrepresentation of facts and fraudulent concealment with reference to unknown owners to the court issuing the order for a tax deed and alleged affirmative action and a wrongful intent and pattern of deception and a scheme to deprive petitioners of their property. Section 72(3) provides that time during which the ground for relief is fraudulently concealed shall be excluded in computing the two-year limitation and section 72(7) provides that relief from a void order or judgment is not barred. It is clear that a verified petition containing proper allegations charging fraud in connection with a tax deed proceeding is entitled to a hearing under section 72 of the Civil Practice Act. People ex rel. Wright v. Doe, 26 Ill2d 446, 187 NE2d 222. In that case allegations of the making of a false affidavit were sufficient to entitle petitioners to a hearing. As a result, we hold that the petition was sufficient, and that the court properly denied respondent Ruth Walsh’s motion to dismiss.

The petition had also named Thomas F. Walsh, husband of Ruth Walsh, as a party respondent alleging that he “may claim dower or other rights in said premises.” Appellant, Thomas Walsh, filed a motion to dismiss the petition as to him and sought to invoke imposition of the penalty provided by § 41, c 110, Ill Rev Stats, alleging that he had disclaimed any interest in the premises and that the allegations were made without reasonable cause and not in good faith, and to distract his interest from attention to the protection of his client’s and wife’s interests. Obviously, the court did not err in denying his motion.

Respondents’ motions having been properly denied, and respondents having elected to stand on their motions, default having been taken, the default judgment is affirmed.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


author: STOUDER, J.

text:
    Carrie L. Keel, as Administratrix of the Estate of Chester B. Keel, Deceased, Plaintiff-Appellant, v. Edna T. Compton, Administratrix of the Estate of Howard T. Compton, Deceased, Defendant-Appellee.
    Gen. No. 69-24.
    Third District.
    February 27, 1970.
    Rehearing denied April 3, 1970.

      Kellstedt & Young, of Peoria, for appellant.
    Davis, Morgan & Witherell, of Peoria, for appellee.
   STOUDER, J.

This is a wrongful death action commenced by Carrie Keel, Administratrix of the estate of Chester Keel, deceased, against Edna Compton, Administratrix of the estate of Howard Compton, deceased. The jury returned verdicts on the two counts submitted to it, the first in the amount of $5,000 for pecuniary loss to next of kin and the second, $1,200 for funeral expenses. The Circuit Court of Peoria County entered judgment on the verdicts in favor of plaintiff-appellant and against defendantappellee. The post-trial motion of plaintiff was denied and the plaintiff has appealed from the $5,000 judgment only, contending that the same is inadequate and erroneous.

Chester Keel, aged 63, and Howard Compton, aged 55, were both residents of Brimfield, Illinois, and were employees of the Caterpillar Tractor plant at East Peoria, Illinois. For several years Compton had driven his car to and from work. Keel, together with other Caterpillar employees who resided along the route, regularly rode with Compton. After working the day shift on November 30, 1965, Compton with five other employees, including Keel as passengers, started for his home in Brimfield. At various points along the route the four passengers other than Keel were let out, the last of such passengers being let out at his home on U.S. Route 150 approximately one and one-half miles east of the scene of the collision, which took place at the intersection of Route 150 and the Hasselbacher Road. U.S. 150 is a two-lane paved highway and intersects with the Hasselbacher Road, a gravel road, at right angles. Proceeding easterly from such intersection there is a curve and a dip in U.S. 150 and consequently cars approaching the intersection from the east as was the Compton car, have a limited view of the intersection. The day was clear and dry but at the time of the collision (4:45 p. m. or near sunset), headlights were necessary.

As the Compton car was about to pull onto the highway from the driveway of the home of the last passenger let out, it was passed by a car driven by Mary Watkins going west on U.S. 150. The Compton car then pulled onto the highway behind the Watkins vehicle and both proceeded in the direction of the intersection with Hasselbacher Road. According to Watkins, she was travel-ling at about 60 miles per hour continuing such speed until she was at a point about one quarter mile east of the intersection at which time she slowed down, turned on her left turn signal and either stopped or practically stopped at the intersection waiting for an oncoming car to pass before making a left turn onto Hasselbacher Road. As she came to the intersection there was a truck stopped on the north shoulder of U.S. 150 at the northeast corner of the intersection. This truck had pulled off onto the shoulder to wait for traffic to clear in order to make a left-hand turn onto Hasselbacher Road. Another truck was stopped on Hasselbacher Road at the southeast intersection waiting to turn right or east onto U.S. 150. Snedeker, the driver of this truck, testified that he saw the Compton car about 500 feet beyond the Watkins car. The front end suddenly dipped as if the brakes were applied, the car swerved to the left, clipped the Watkins car and then glanced into the eastbound lane, where it was struck broadside by the oncoming car. Both Compton and Keel died as a result of the collision.

The original complaint brought by Keel’s Administratrix charged Compton with both negligence and wilful and wanton misconduct. Only the negligence counts were submitted to the jury, the wilful counts being voluntarily withdrawn. It is plaintiff’s theory that Keel was a paying passenger and, therefore, Compton owed a duty of ordinary care to him. In support of this theory, the plaintiff introduced the testimony of the other four passengers who each testified that he shared expenses by paying Compton $2.50 per week for riding with him. None of the passengers knew what the arrangement between Keel and Compton was, but there was testimony that Keel had been seen paying Compton.

In addition to returning its verdict for $5,000 in favor of plaintiff which is the basis of this appeal, the jury also found affirmatively in response to special interrogatories that Compton was the driver of the ear and that Keel was a paying passenger.

Plaintiff argues that the trial court erred in failing to grant her post-trial motion for a new trial on the sole issue of damages because the verdict was based either on passion or prejudice or upon the jury’s failure to consider all of the proper elements of damage sustained by plaintiff. Alternatively, she argues that she should have been granted a new trial generally both because of the foregoing alleged errors as well as errors in the admission of evidence and in rulings on instructions.

Since the adequacy of the damages is one of the principal issues of this case, the evidence relating thereto requires a brief summary.

The plaintiff and decedent had been married about forty years. Fourteen children were born of the marriage, ten living at the time of death. Two were living at home, a girl, age eighteen, in high school (whether this daughter was in high school is disputed in the briefs), and a son, thirty-three years old and self-employed.

The plaintiff wife was fifty-six years old with a life expectancy of 18.97 years. The deceased husband was sixty-three years old with a life expectancy of 14.14 years. The decedent had been for many years an employee in the foundry of the Caterpillar Tractor Company. The plaintiff wife had not been employed but occasionally performed gratuitous babysitting services for neighbors. The plaintiff Carrie Keel, and her decedent husband, Chester Keel, were buying a seven- or eight-room house on contract for deed and had owned it for about six years.

Mr. Keel made $6,081.09 as an employee at Caterpillar Tractor Company for the year 1963; $6,150.07 for the year 1964 and $5,981.01 in the year 1965 up until the time of his death on November 30, 1965. He gave his wife the entire check, and she handed him money on occasion for his personal expenses, usually a small amount each week. She handled all the expenses of the household.

Retirement age at Caterpillar is at the end of age sixty-five. If the plaintiff’s decedent had survived the three years until retirement age, based upon his last year’s earning, he would have made approximately $18,000. Keel was in good health, as were his widow and children, and from the testimony relating to his habits and family relations it may be concluded that he was a good family man.

IPI Instruction 31.01 (Measure of Damages — Wrongful Death) was given in this case. It included the eight elements relating to damages as indicated in IPI 31.02 and also included the presumption of some substantial damages applicable where a widow and lineal descendants survive. Plaintiff argues that there is undisputed evidence relating to each of the eight elements specified in IPI 31.02 from which pecuniary injury may be inferred.

Many of the criteria relating to pecuniary injury are not susceptible of expression in monetary terms. The weight to be given such factors and their relevance to the pecuniary injury sustained is peculiarly a jury question. Courts are reluctant to disturb jury verdicts in such cases and will not do so unless such verdicts are the result of passion or prejudice or are palpably erroneous. Naslund v. Watts, 80 Ill App2d 464, 224 NE2d 474. In the case at bar plaintiff argues not only that the cumulative effect of all the evidence warranted a larger verdict but also in particular that the jury in awarding plaintiff $5,000 can only be deemed to have ignored the damage instruction insofar as it related to loss of support. We agree with this contention of plaintiff. It is undisputed that Keel was in good health, he earned more than $6,000 in each of the two preceding years, would in all probability earn at least $18,000 before being required to retire at Caterpillar, and that some additional amounts would be earned by Keel after his retirement. Based on these facts alone we fail to see how the award of $5,000 bears any relationship to the pecuniary injury when, in fact, it bears no relation to one of the proved elements which the jury was required to consider. See Rasmussen v. Clark, 346 Ill App 181, 104 NE2d 325, and McClure v. Lence, 345 Ill App 158, 102 NE2d 546.

Defendant seeks to justify the adequacy of the award by relying on such cases as Jury v. Ogden, 56 Ill App 100, Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill 330, 51 NE 701, Denton v. Midwest Dairy Products Corp., 284 Ill App 279, 1 NE2d 807, and Wilcox v. Bierd, 330 Ill 571, 162 NE 170. As stated in Jury v. Ogden and approved in the other cases, “The amount to be recovered is what the statute regards as the pecuniary value of the addition to such estate left as the deceased, in reasonable probability, would have made to it, and left, if his death had not been so wrongfully caused. It is to be estimated by the jury from all the facts and circumstances proved, his prospect of life, and his means, opportunities, ability and habits, with reference to the making and saving of money or money’s worth.” Or in other words, how much would the decedent in. all probability have saved.

According to defendant’s argument based on the foregoing proposition, the decedent Keel, at the time of his death, had accumulated little of the world’s wealth in material terms. Consequently, he should not have been expected to save much in the future and accordingly, the amount awarded by the jury was adequate. It would be sufficient to say that the “enhancement of estate test” is not the measure of damages presently embodied either in our general law or the instruction relating thereto. See Flynn v. Vancil, 41 Ill2d 236, 242 NE2d 237, Dodson v. Richter, 34 Ill App2d 22, 180 NE2d 505, Naslund v. Watts, supra, Rasmussen v. Clark, supra, and McClure v. Lence, supra. The insistence by defendant that the award should be measured in such terms in fact recognizes its inadequacy when otherwise considered in relation to the appropriate standard. Thus if a decedent spent all of his earnings on his wife or other dependent he could not be expected to accumulate any estate and consequently the next of kin could sustain no pecuniary loss on account of his premature death. To state the argument in such terms reveals its absurdity as applied to the facts of this case.

The question remains as to whether plaintiff ought to have a new trial on the issue of damages only or whether a new trial generally is required. The rule with respect to when new trials on the issue of damages only are appropriate is set forth in Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275, which states that such new trials are appropriately granted where the issues of liability and damages are so separable that a determination on the issue of damages alone will not result in any injustice. The issues will not be deemed separable if it appears the verdict was the result of a compromise.

As shown by the record, the husband of each of the parties died in the collision. In her capacity as surviving spouse, the defendant’s fault was not at issue. The basic facts of the case do present a framework which may have evoked the sympathy of the jury. However, notwithstanding plaintiff’s contentions to the contrary, we find nothing in the record indicating that defense counsel improperly or deliberately attempted to persuade the jury that its verdict should be affected by such sympathy.

It may be argued that sympathy may have caused the jury to return an inadequate verdict. Yet there is nothing from the amount of the verdict, considered in relation to the facts and circumstances of the case, indicating that the verdict may not have been a compromise of liability against damages. Accordingly, we believe that a new trial ought to be held on all issues.

Since this case must be retried, we believe it is appropriate and necessary to consider other alleged errors in order that questions relating thereto may be avoided in the retrial.

Plaintiff argues that the trial court erred on a ruling on evidence relating to damages. Plaintiff presented the testimony of an official of the Caterpillar plant for the purpose of showing that Keel would have been entitled to a pension of $113 per month commencing upon his retirement. According to plaintiff, this pension was partly paid for by Keel and consequently was evidence of additional income to Keel, the benefits of which would not be available because of his premature death. It also appeared from a documentary exhibit which plaintiff proposed to introduce that 55% of the pension otherwise payable to Keel would be payable to his widow. Plaintiff objected to defendant’s efforts to elicit from this witness the fact that a percentage of the pension was, in fact, payable to plaintiff. The issue was originally discussed outside the presence of the jury and the trial court held that the facts concerning the payment of the pension to the plaintiff widow were properly presented to and considered by the jury, and it is this ruling which plaintiff contends was erroneous.

The principal cases relied upon by plaintiff are Devine v. City of Chicago, 172 Ill App 246 (fireman’s pension paid widow) and Illinois Cent. R. Co. v. Prickett, 210 Ill 140, 71 NE 435 (insurance proceeds paid widow). In each of the foregoing cases the court held that the payment was properly excluded from consideration by the jury in mitigation of damages under the collateral source rule.

In our opinion, the trial court ruled properly on this issue and we do not believe the cases cited by plaintiff are applicable. To the extent that the loss of an expected pension is relevant to the issue of the loss of support sustained by the surviving widow, the actual loss from the same income is equally relevant. In applying the collateral source rule, evidence of the pension payable to the plaintiff as surviving widow would be inadmissible absent a claim based on decedent’s loss of the same pension.

Plaintiff also argues that the trial court erred in the giving of instructions at the request of the defendant. The first instruction given and objected to is commonly referred to as the “sudden emergency” instruction. Although defendant’s brief is silent on the point, the drafters of Illinois Pattern Jury Instructions recommended that no such instruction be given. See comments to IPI, § 12.02. Indeed in Culp v. Olive, 45 Ill App2d 396, 195 NE2d 729, the principal case relied upon by defendant, the court discusses the recommendation against usage, indicates that it does not disagree with such recommendation and then holds that the giving of such instruction was harmless error. The defendant in this court has failed to show any reason why the recommendations of the drafters of the Pattern Jury Instructions should be disregarded and accordingly, we believe the trial court erred in giving the instruction.

Plaintiff also objected to another instruction given at the request of defendant which, in substance, indicated that the only duty owed by a driver to a guest was to refrain from wilful and wanton conduct. Defendant claims that such instruction was proper because he was entitled to have the jury instructed on his theory of the case. Since there was no issue of wilful and wanton conduct in the case submitted to the jury (counts relating thereto having been voluntarily withdrawn), we are unable to understand how such instruction related to any issue of the case. It was defendant’s theory that plaintiff was a guest and not a paying passenger. Whatever duty might have been due a guest has no bearing on the determination of whether the person was a guest. Being unrelated to any issue in the case, the giving of the instruction can only be deemed to have tended to obscure the real issues or confuse the jury. The issue of wilful and wanton conduct not being present in the case instructions relating thereto were erroneous.

We believe the Circuit Court of Peoria County erred in denying plaintiff’s motion for a new trial and accordingly, the judgment of said Court is reversed and remanded with directions that plaintiff be granted a new trial.

Reversed and remanded with directions.

RYAN, P. J. and ALLOY, J., concur.


author: GOLDENHERSH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Gerald M. Ferro, Defendant-Appellee.
    Gen. No. 69-98.
    Fifth District.
    March 3, 1970.
    Rehearing denied April 6, 1970.

      Gerald D. Owens, State’s Attorney of Franklin County, of Benton, for appellant.
    Medlin, Zimmer and South, of Carbondale, for appellee.
   GOLDENHERSH, J.

The People of the State of Illinois appeal from the judgment of the Circuit Court of Franklin County dismissing an indictment and discharging the defendant, Gerald M. Ferro, from custody.

The record shows the Grand Jury returned an indictment charging defendant with the murder of one John L. Myers. Defendant filed a motion stating inter alia:

“5. That the question of Gerald Ferro’s responsibility for his conduct at the time in question cannot be fairly determined at a trial of the cause upon the issue of his guilt or innocence but should be determined at a preliminary hearing upon the issue of responsibility alone.”

and concluding as follows:

“WHEREFORE defendant, by and through Ms said attorneys moves for a preliminary hearing in accordance with this motion on the question of the criminal responsibility of the defendant as defined in the Illinois Criminal Code of 1961 (Chapter 38, Section 6-2 (a), Illinois Revised Statutes 1967)

The court allowed the motion, conducted a hearing, found that at the time of the occurrence alleged in the indictment defendant “was not criminally responsible for its conduct inasmuch as, at the time of such conduct, as a result of mental defect he lacked substantial capacity to conform his conduct to the requirements of law . . . The court ordered the indictment dismissed and the defendant discharged from custody.

Section 6-2 (a) of the Criminal Code of 1961 (c 38, § 6-2(a), Ill Rev Stats) provides:

“A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform Ms conduct to the requirements of law.”

A defense based upon the foregoing statute is an affirmative defense (c 38, § 6-4, Ill Rev Stats).

In The People v. Ford, 39 Ill2d 318, at page 320, 235 NE2d 576, the Supreme Court said “The defense of insamty at the time of the crime, like any other defense, must be raised at the time of trial and submitted to the jury who are hearing the case, and no special jury is called or pretrial hearing conducted to determine this question. (Brown v. People, 8 Ill2d 540.) The question of defendant’s mental condition at the time of the crime is a question of fact to be determined by the trier of fact. People v. Myers, 35 Ill2d 311; People v. Muniz, 31 Ill2d 130.”

We interpret the opinion to hold that the affirmative defense defined in section 6-2 (a) of the Criminal Code is to be adjudicated in the same manner as are those provided in other sections of the Criminal Code (§§ 4-8, 6-1, 6-3, 7-1 through 7-13, 11-4 (b), 11-12 (b), and 27-2). The affirmative defense that the accused was not criminally responsible for his conduct at the time of the occurrence is clearly distinguishable from the issue of competency which is to be determined in the manner provided in Article 104 of the Code of Criminal Procedure (c 38, § 104, Ill Rev Stats).

We have considered defendant’s argument that under the language of People v. Speck, 41 Ill2d 177, 242 NE2d 208, the trial court has the power to determine the question in the manner in which it did, and absent a clear abuse of discretion its decision should not be disturbed. The procedure suggested in Speck is entirely different (see pages 206-208 of the opinion) from that followed in this case.

Under the holding of The People v. Ford the procedure followed was clearly erroneous. The judgment, therefore, is reversed and the cause remanded to the Circuit Court of Franklin County with directions to vacate the order dismissing the indictment and discharging the defendant, reinstate the action, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.