author: MR. JUSTICE MCCORMICK

text:
    Mitchell Miller, et al., on Behalf of Clearview Manor, Inc., an Illinois Corporation, Plaintiffs-Appellants, v. Seymour Heller, et al., Defendants. Castle Terrace, Inc., an Illinois Corporation, Nathan Browdy, et al., Defendants-Appellees.
    Gen. No. 50,712.
    First District, Fourth Division.
    November 3, 1967.
    Rehearing denied and opinion modified February 26,1969.

      David Chaimovitz, of Chicago, for appellants.
    Hoffman & Davis, and Robert A. Sprecher and Edward W. Barrett, of Chicago, for appellees.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

On August 18, 1961, plaintiffs, Mitchell Miller, Leon Lieberman, Nathan Kosoy, Burton S. Rose and Sy Suss-man, on behalf of Clearview Manor, Inc., filed a complaint in chancery for an accounting and to declare in effect a constructive trust with reference to an interest in certain property. The complaint was in two counts. On March 26, 1963, in the Circuit Court of Cook County, an order was entered dismissing Count II and the supplement and amendment thereto as against Castle Terrace, Inc., Edward Hochman, Leonard Brenner, George Rongner, Nathan Browdy and Edward Browdy, defendants (hereafter referred to as Castle defendants). The order also freed the land involved in the proceedings from lis pendens. On May 3, 1963, the plaintiffs made a motion to vacate these orders, which motion was denied. From that order this appeal is taken.

In this court plaintiffs’ theory is that (1) the finding and ruling of the master pertaining to a motion to dismiss must be given great weight and cannot be reversed by the chancellor if there is any evidence presented in support of plaintiffs’ case, especially where, as here, the chancellor heard no evidence and the master was in a superior position to the trial court to pass on the evidence; (2) that a constructive trust arises where one party takes title to property with knowledge of the fact that he is using funds or credits belonging to another, and that such a trust, under the circumstances present in the instant case, should have been imposed upon the subject property with the Castle defendants as constructive trustees for the use and benefit of the plaintiffs.

Defendants’ theory is that the chancellor, in passing on defendants’ motion made at the close of plaintiffs’ case under section 64(5) had the power to weigh the evidence; that the evidence submitted by plaintiffs did not establish either a resulting or constructive trust; that plaintiffs did not establish their ease by the proof required of them under the law; that the chancellor properly entered a decree in favor of Castle defendants on the evidence submitted by the plaintiffs; and that the plaintiffs’ purported claim is barred by laches.

Count II of the complaint set out that on July 10, 1959, after Clearview Manor was incorporated, it entered into articles of agreement to purchase certain land from Irving Berkson, and a down payment of $25,000 was made to Berkson; and that on July 29, 1960, Berkson entered into a release agreement releasing the purchaser, Clearview Manor, from any obligations under the articles of agreement. Clearview Manor also released Berkson, and Berk-son was to retain as liquidated damages the $25,000 theretofore paid. The complaint also set out that on July 29, 1960, Heller induced Castle Terrace, Inc. to purchase the same land from Berkson, and Heller aided in negotiating the deal; that under the unrecorded articles of agreement for deed, Castle Terrace received a credit of $25,000 against the total price agreed on to be paid by it, and that the said credit was given by Berkson in order to give Heller an opportunity to offset the loss of $25,000 incurred by Clearview Manor by its inability to complete the purchase of land referred to, and on the specific understanding that Heller would receive an equity in the land in an amount or a percentage satisfactory to him; that Castle Terrace, Inc. agreed to give up to Heller 20 percent of the equity in the land referred to for the use by Castle Terrace, Inc. of the $25,000 credit against the total purchase price of the land; and that Leonard Brenner, a director, officer and principal stockholder of Castle Terrace, told the Clearview Manor plaintiffs that Heller had received a 20-percent equity in the land for permitting the 25,000 credit allowed by Berkson to go to Castle Terrace, to be applied against the total purchase price of the land.

It is then alleged that the $25,000 credit allowance by Berkson to Castle Terrace is not the asset and property of Heller, but is the asset, property and right of Clearview Manor, and that the transaction between Heller and Castle Terrace should be cancelled as to a 20-percent equity in the land, and those rights should be decreed to be the rights of Clearview Manor; that Castle Terrace commenced and is still erecting townhouses on the property; and the plaintiffs pray that the court decree that the 20-percent equity in the land held by Heller shall be decreed to be the asset and property of Clearview Manor; that the defendants should be ordered to pay Berkson the balance due, or, in the alternative, that in case defendants fail to make the payments and Berkson declares a forfeiture, the court enter judgment for 20 percent of the present value of the land and improvements in the sum of $75,000 or more, against the defendants, subject to Clear-view Manor conveying to Castle Terrace all of its interest in the remaining land.

On September 8, 1961, plaintiffs asked leave to file an amendment and supplement to Count II, which was allowed. Among other things the amendment impleaded the Castle defendants as additional defendants. The amendment and supplement to Count II set out that the contract dated November 28, 1960, between Hochman as purchaser and Berkson as seller for the land described, called for the purchase of the land for the total price of $186,800, and that Hochman, in the execution of the contract, was acting for Castle defendants.

It is also set out in the amendment that the $25,000 was in fact the asset of Clearview Manor and that all the Castle defendants knew, or should have known that fact, and that the $25,000 was not forfeited either by Heller or Clearview Manor, but was permitted by Clearview Manor to be retained by Berkson as liquidated damages; that Heller had no interest or right to that sum. The plaintiffs pray that the court find and decree that the subscription agreement entered into between Seymour Heller and the Castle defendants should be void as against Clearview Manor, and that the court decree that an accounting of all receipts and disbursements to this date be given by defendants Heller and Castle Terrace.

Defendant Heller filed an answer to the entire complaint and supplement thereto, and the Castle defendants filed a sworn answer and counterclaim to Count II of the complaint. Attached to it was the release heretofore referred to, given by Berkson and Clearview Manor, by Heller as president.

The case was assigned to a master in chancery for hearing. Evidence was offered by the plaintiffs in support of Count II of their complaint as amended. At the close of plaintiffs’ proofs before the master, Castle Terrace, Inc., and the Castle defendants moved for a finding in their favor and that Count II of the complaint be dismissed as to them. The master overruled the motion on July 26, 1962, and on July 31,1962, they filed a petition requesting that the master in chancery be required to certify the report of the proceedings, together with the exhibits, and that the chancellor then review the ruling of the master and determine the motion of the petitioners made at the close of the case.

At a hearing before the chancellor on March 26, 1963, a decree was entered overruling the order entered by the master in chancery refusing to dismiss Count II as to Castle Terrace, Inc., and the Castle defendants, and ordering that Count II and supplement be dismissed as to Castle Terrace, Inc., and the Castle defendants. A motion to vacate the decree was overruled on May 3, 1963, and plaintiffs appealed.

On the same day the court entered an order passing on the motion of Heller to review the master’s finding on his motion which had been presented before the master in chancery at the close of plaintiffs’ case in chief. Heller’s motion before the master was to dismiss Count II of the complaint as to him. The master overruled that motion and the court ordered that the ruling of the master as to Heller be sustained, and that Heller might proceed before the master in chancery to adduce evidence in support of his defense to Count II and the amendment and supplement thereto. Heller did not appeal.

The evidence shows that on July 10, 1959, Clearview Manor, Inc., upon whose behalf plaintiffs as shareholders brought this action, entered into articles of agreement with Irving L. Berkson to acquire vacant land in Waukegan, Illinois for $125,000. The defendant, Seymour Heller, who was a building contractor and the sole proprietor of Heller Construction Co., was the president, a director and shareholder in Clearview Manor, Inc. Clear-view Manor deposited $25,000 as earnest money with Irving Berkson on account of a land purchase and constructed townhouses on some of the property, but concluded that the venture was not financially profitable. In April and May 1960, Heller tried to sell the unimproved property, and in July 1960, Clearview Manor, Inc. negotiated with the seller, Berkson, for a release of its obligations to pay the remainder of the purchase price for the unimproved property under its articles of agreement. On July 29, 1960, Clearview Manor and all of its shareholders (which included all of the plaintiffs) entered into a release agreement with Berkson wherein Berkson released Clearview Manor of its obligation to purchase the unimproved property, and Clearview Manor released Berk-son’s obligation to sell. The agreement further provided that the $25,000 earnest money previously deposited by Clearview Manor with Berkson was to be retained by Berkson as liquidated damages.

The testimony revealed that there were four meetings between Heller and the Castle Terrace group relating to the land involved. The first meeting was on or about November 17, 1960, when Heller went to defendant Brenner’s home and told Brenner he was interested in the townhouses Brenner had built at Golf Mill Gardens. During this conversation Heller mentioned the Waukegan land described in Count II of the complaint as amended and supplemented. Brenner called defendant Hochman who joined the meeting, after which it was arranged for them to see the land in Waukegan. The second meeting took place the following Monday, November 21.

Defendants Heller, Brenner, Hochman and Rongner went to see the land in Waukegan, and while they were at the site David Berkson, a brother of Irving L. Berkson, drove by and stopped. Hochman knew Berkson, and after Berkson told him he was the owner, Hochman indicated to him that he might be interested in a purchase. Berk-son told him the land was committed to another buyer and that he would not know until Friday of that week if the land would be available. On Friday Berkson advised Hochman that the land was available, and a meeting was arranged for Saturday, November 26, 1960. On Saturday the third meeting took place, and Berkson offered to sell the land for $110,000; Hochman offered to purchase it for $105,000, and the purchase price was agreed between them at $110,000. On Monday, November 28, the fourth meeting took place at Irving Berkson’s office, during the course of which meeting Irving Berkson advised Hochman that the price of the purchase would have to be increased by $1,800 because of taxes which had been paid by the seller. It was agreed by bhe Castle defendants to pay Berkson the increased price, or a total of $111,800 for the land. The Castle defendants then went to lunch and their attorney, Kane, remained with Irving Berkson and his secretary to draft the contract.

When Berkson dictated the price of $136,800, Kane requested him to stop, and said the price agreed upon was $111,800. Berkson said that Kane was correct, that the price was $111,800, but that he had in his possession the sum of $25,000 previously paid by Heller in connection with the subject property, and that Heller had asked him to increase the price by $25,000 and give the purchaser credit for the $25,000. Heller had asked Berkson to do this before the Castle defendants came to the meeting. Berkson further told Kane that as long as this did not affect Kane, and since his clients were still paying the agreed price of $111,800, he was putting this in the contract. The Castle defendants followed the advice of their attorney, and the purchase contract was signed on November 28,1960, by Berkson and Hochman with the purchase price designated as $136,800, and credit given for $25,000. Title was to be taken in Hochman or his nominee.

The Castle defendants, as adverse witnesses, testified that on and prior to November 28, 1960, they did not know of Clearview Manor, Inc., nor did they know of any interest it or any of its shareholders previously had in the property, nor did they know that Clearview Manor had previously deposited $25,000 or had released its $25,000 deposit to Berkson. Plaintiffs contend in their brief that this testimony is untrue. However, it cannot be said that their testimony was demonstrably false.

Subsequent to November 28,1960, Heller sought to perform contracting services for the Castle defendants, first on a full-time basis, then during the discussions Heller changed his offer to perform services at a later time in the development of the property. These discussions were never finally determined. Their tenor was that in exchange for services performed by Heller he was to receive a share of the profits.

A preorganization agreement for the Castle Terrace Corporation, dated January 1, 1961, was executed by all the individual defendants, including Heller, under the terms of which Heller was to be given a 20-percent interest in the corporation. The agreement contained a statement that Heller had theretofore forfeited $25,000 to Berkson. The agreement recited that the corporation was to acquire title to the land in question and that Berk-son as seller had given the corporation a credit against the purchase price for the $25,000 forfeited by Heller. The articles of incorporation implemented this agreement by showing Heller’s interest in the corporation as fully paid, which, if not true, would of course have rendered the articles questionable. Also, the contract under which the purchase was made by Castle Terrace contains a rider showing that Berkson “has in his possession the sum of $25,000 previously paid in connection with subject property, and agrees to credit purchaser under this contract with said $25,000.00.” The money being credited to the Castle Terrace group was money previously paid by Clear-view Manor to Berkson as earnest money.

Berkson testified that on or about July 29, 1960, he had a conversation with Glassman, the attorney for Clearview Manor, wherein he told Glassman that if at any time before he sold the property to any other purchaser his people wanted to pick up the deal, he would reinstate the contract for them; that an agreement was prepared in accordance with Glassman’s request, and a signed copy sent to Berkson by Clearview Manor whereby the time for payment of $50,000 (due on July 10, 1960) was to be extended for a 3-month period, provided they would pay the interest due on the total balance at that time. Berkson further testified that the agreement was not signed by him because it was not complied with, and that he had no conversation with Glassman or Heller from July 1960 until November 28,1960.

Plaintiffs’ first contention is that a motion to dismiss made at the close of plaintiffs’ case must be denied if there is any evidence in support of their case; that all reasonable intendments therefrom most favorable to plaintiffs which tend to establish their case must be construed in their favor and taken as true; and that the ruling of the master on the motion must be given great weight in that the chancellor heard no evidence. This contention is without merit, as the court is required to weigh the evidence in ruling on this motion. Numerous cases are cited by plaintiffs in support of this contention; however, they are not in point because they are concerned with motions for a directed verdict made at the close of plaintiffs’ case in a jury trial. In the case at bar we are not concerned with such a motion, but rather with a motion under section 64(5) of the Civil Practice Act (Ill Rev Stats 1961, c 110, § 64(5)) which states:

“Upon the trial of a proceeding in equity and in cases at law tried without a jury defendant may, at the close of plaintiff’s case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shall weigh the evidence . . .”

There is an interpretation of this statute set forth in Brubaker v. Gould, 34 Ill App2d 421, 430, 180 NE2d 873; however, we disagree with that interpretation and cite, rather, the dissent therein at pages 440 to 450 for a statement of what we consider to be the obligation of the court in weighing the evidence on a motion such as this in a chancery case.

It has been held that the master’s report is of an advisory nature only. In Hoelscher v. Hoelscher, 322 Ill 406, 153 NE 662, the court held that after a master’s report has been filed all the facts are open for the consideration in the first instance by the trial court, and in case of an appeal, by the reviewing court. The court said, at page 413:

“In Chechik v. Koletsky, 311 Ill 433, the rule is laid down that the ultimate and final question in this court is, Was the decree rendered by the chancellor the proper one under the law and the evidence, without regard to the finding of the master upon any particular question of fact?”

In Zilvitis v. Szczudlo, 409 Ill 252, 99 NE2d 124, the court said, at page 255:

“In a chancery case the facts are found by the court, and the master’s report, while prima facie correct, is of an advisory nature only. The facts are all open for consideration in the first instance by the trial court, and afterwards by this court in case of appeal. Without regard to the findings of the master upon any particular question of fact, the final question in this court is, Was the decree rendered by the court a proper one under the law and evidence? This rule is well settled. [Citing cases.]”

In the case before us the master, in order to deny dismissal of Count II of the complaint, as to Castle Terrace, Inc., and the Castle defendants, found that the facts in the record before him were sufficient to prove a prima facie case. The chancellor weighed the evidence and in dismissing Count II, found exactly the opposite. In reviewing the conclusions and findings made by both the chancellor and the master, we conclude that the evidence, or lack of evidence, supports the chancellor’s decision in allowing the defendants’ motion to dismiss.

Plaintiffs also contend that a constructive trust should be imposed upon the subject property with the Castle defendants as constructive trustees. This contention is likewise without merit. The purpose of imposing a constructive trust in the instant case would be to prevent the Castle defendants from holding for their own personal benefit and advantage property which they have allegedly gained by reason of fraud or through the abuse of a special confidence placed in them by the plaintiffs. However, before a court of chancery will declare such a trust it is incumbent upon the plaintiffs to show by clear, convincing and unequivocal evidence either the existence of actual or constructive fraud, or the abuse of some fiduciary duty owed them by which the defendants obtained legal title to the subject property. Tarpoff v. Karandjeff, 51 Ill App2d 454, 201 NE2d 549; Cunningham v. Cunningham, 20 Ill2d 500, 170 NE2d 547; Lux v. Lelija, 14 Ill2d 540, 152 NE2d 853; Neagle v. McMullen, 334 Ill 168, 165 NE 605; Wood v. Armstrong, 401 Ill 111, 81 NE2d 468. We find nothing in the record to sustain plaintiffs’ theory on either ground.

The record does not indicate that the Castle defendants ever owed any fiduciary duty to plaintiffs. The fact that Heller may have breached his fiduciary duty to Clearview Manor is neither relevant nor material here. It does not follow that because Heller may have owed a fiduciary duty to the plaintiffs the Castle defendants, not knowing of this relationship, can be impressed with a similar duty. In order for plaintiffs to recover on the theory of fraud it was incumbent upon them to establish by clear and convincing evidence that the Castle defendants received a credit of $25,000, with the actual or constructive knowledge that the money belonged to Clearview Manor. However, as previously pointed out in this opinion, the record does not indicate that at the time of the purchase of the subject property by the Castle defendants they had actual knowledge of the existence of any interest which the plaintiffs might assert in this credit.

Although the record disclosed that there was testimony to the effect that the Castle defendants knew there were other people in addition to Heller who had lost money in a prior transaction concerning the subject property, it was not until after November 28, 1960—the date the Castle defendants purchased the subject property from Berkson—that they acquired this knowledge.

After carefully examining the record we agree with the chancellor that the plaintiffs failed to demonstrate by clear and convincing evidence that the Castle defendants purchased the subject property fraudulently, in bad faith and with notice of the alleged rights of the plaintiffs. Moreover, since the Castle defendants, in paragraphs 11 and 12 of their answer, affirmatively pleaded lack of notice of plaintiffs’ purported interest in the subject property, and stated that the Castle defendants, in acquiring subject property, were innocent purchasers for value and were free from any right of claims of interest of plaintiffs, and since the plaintiffs failed to reply to these affirmative defenses, they stand admitted. First Federal Savings & Loan v. American Nat. Bank, 100 Ill App2d 460, 241 NE2d 615. The trial court was correct in dismissing Count II against the Castle defendants. In so holding, we by no means indicate a position which would foreclose plaintiffs from pursuing their claim against Heller to the point of obtaining for Clearview Manor, Inc. Heller’s stock interest in Castle Terrace, Inc. Neither the individual defendants nor Castle Terrace, Inc. would be necessary parties to such relief. See Damer v. Brown, 84 Ill App2d 72, 228 NE2d 465.

Accordingly, the judgment of the Circuit Court dismissing Count II and the supplement thereto as against Castle Terrace, Inc., and Castle defendants, and the denial of the motion to vacate the said order of dismissal, are affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       Count I, which is not involved in this appeal and is still pending in the Circuit Court, in substance was as follows: It alleged that Heller was promoter and organizer of Clearview Manor, Inc., and that in the course of his negotiations with the plaintiffs with reference to the organization, Heller made various false representations—among others, that he was an experienced general contractor and that he would perform the general contractor’s services over the construction. In return for this the investors were to receive notes totaling $55,000 from the corporation, plus 400 shares of stock each, or a total of 2,000 shares amounting to $20,000. It was further alleged that no shares of stock were ever issued or delivered. Heller also agreed that he was to pay subcontractors out of corporate funds; instead of that, he diverted about $60,000 of the corporate funds to his own use. Plaintiffs further allege that they were bringing the suit as individual plaintiffs on behalf of Clear-view Manor, Inc., and seeking general equitable relief.

       The order entered in the trial court complied with section 50(2) of the Civil Practice Act (Ill Rev Stats 1961, c 110, § 50(2)), inasmuch as there was an express finding that there was no just reason for delaying enforcement or appeal.

       Defendant Heller was the promoter, organizer, president and treasurer of Clearview Manor.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mae Gillespie Adams, Defendant-Appellant.
    Gen. No. 50,229.
    First District, Third Division.
    February 27, 1969.

      George C. Adams, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Haddad, James Zagel, and James Heelan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction for theft in the amount of $11,248.44. Trial was by jury, and the court imposed a sentence of one to five years in the State Institution in Dwight, Illinois.

The defendant contends: 1) that she was not proven guilty beyond a reasonable doubt; 2) that the court erred in not discharging her under the Four-Term Statute; 3) that there was a fatal variance between the indictment and the proof; 4) that evidence was improperly excluded; and 5) that the trial court and the prosecution were guilty of misconduct which would justify a reversal of the conviction.

On August 31, 1962, the defendant was employed as a cashier at the Wells-Harrison Currency Exchange which was one of eight currency exchanges comprising the Regal Currency Exchange System, Inc. She had been initially employed by the system in 1948 and had spent some time working in the company’s main office. While working in the main office, the defendant worked with Bea Fogle who daily checked the reports of the various cashiers in each of the eight exchanges.

Each cashier was required to make out daily reports which were sent to the main office to be checked by Bea Fogle. These reports indicated the amount of money on hand at the beginning of the day, the amount of money which was deposited with the bank, the amount of money which was shipped from the bank to the exchange, the amount of checks that were cashed, and other data which reflected all other services performed at that exchange for a given day. In addition to this daily report, the cashier submitted fee sheets and duplicate deposit tickets which were dated by the cashier and which showed the content and the amount of the day’s deposit. The shipments and deposits were transported by the Armored Express Company. The money shipped to the exchange was credited to an account maintained by the exchange at the Exchange National Bank. The money that was deposited was debited to this account. Tickets debiting and crediting the account were sent to the main office.

The evidence produced by the State was designed to show that the defendant had embezzled funds by reporting that deposits were made on a particular day when in fact such deposits were made several days later and by not reporting the receipt of money shipments from the bank until several days after such shipments were actually received. Such a manipulation of the reported dates of shipments and deposits would enable the defendant to continue to cover up an increasing shortage of funds. Such a procedure would have the effect of decreasing the amount of cash that the defendant should have on hand at the exchange if the dates of the shipments and deposits had been correctly recorded in her daily reports.

Mr. Abe Greenfield, the President of the Regal Currency Exchange System, Inc., testified for the prosecution. He stated that the theft did not become immediately apparent to him because he treated the delays as items “in transit” between the exchange and the bank. However, in February, 1962, the bank notified him that his account was overdrawn in the sum of $22,000. Subsequently he was notified of other instances of overdrafts. In order to determine whether these overdrafts were caused by delays in the transporting by Armored Express, he went to the exchange operated by the defendant to check Armored’s receipt book which was kept at the exchange and which contained the date of each pickup signed by the Armored messenger. The dates in the book had been obliterated, and the defendant informed him that the book had fallen into a pail of water. Greenfield then made a detailed comparison between the daily reports and the bank statements, whereupon he discovered that there had been as much as a four-day delay between the time of actual deposits and the date such deposits were recorded by the defendant. Delays were also found in the reporting of money shipments. The witness made an unannounced check at the exchange on August 31, 1962, after being advised by Bea Fogle that the defendant had requested that three shipments be made on that day. One shipment was in the amount of $9,400 and the other two shipments were each $10,500. Greenfield was met at the exchange by an investigator from the United States Fidelity and Casualty Company and by Richard Wayne of the Burns Detective Agency.

Greenfield further testified that he counted the defendant’s cash on hand which amounted to approximately $3,000, which revealed about a $700 shortage. He noticed that the defendant had reported only one of the two $10,500 shipments which were supposed to have been made that day. If this shipment had been reported, the record would have revealed a shortage of about $11,200. The witness stated that he told the two men that there was a $700 shortage but also that there was a possibility of a much larger shortage.

On the next day, September 1, 1962, Greenfield received the tickets from the bank which revealed that the two $10,500 shipments had in fact been made on August 31. Accompanied by a Chicago Police Officer, Richard O’Leary, the complaining witness went to the exchange and discovered a completed daily report for the prior day which reported both shipments but which was not the same report he had reviewed with the defendant on August 31. Greenfield again counted the money in the outer safe which still amounted to about $3,000. This still indicated a shortage of about $11,200. Mr. Greenfield denied that he ever had a key to the inner safe and he denied that $13,000 was placed into the inner safe on August 31,1962.

George Klauser, the chief auditor for the State’s Attorney’s Office in the financial and fraud division, testified for the State that he conducted an audit of the books and records of the exchange for the period from January 31, 1962, to August 31, 1962. He compared the deposits as listed in the daily report with the bank statement and the records of Armored Express so as to determine precisely when these deposits were picked up and deposited in the bank. Mr. Klauser stated that his audit revealed a systematic pattern of delayed deposits which occurred at the end of every week and at the end of every month and that in May and June the delays occurred more frequently. He further testified to some delays in the reporting of money shipments to the exchange. As a result of these manipulations, the witness stated that on August 31, 1962, there was a shortage of $11,248.44.

The prosecution also presented the testimony of Captain David Purtell of the Chicago Police Department’s Scientific Crime Detection Laboratory. The witness was firmly established as an expert in the field of document analysis. It was his conclusion, based upon a series of scientific tests of the Armored Express’ Receipt Book, that the obliterations of dates contained therein could not have been caused by the book’s falling into a pail of water and then being retrieved.

The defendant attempted to show that there was about $13,000 on hand on August 31, 1962, and that at some time between that date and September 4, 1962, when Armored opened the empty inner safe, someone had taken the money from the inner safe, thus creating the shortage. The defense called one Cora Perry, a former employee of the system, who stated that she believed the main office had a key to the inner safe but that she did not know if such was the case after February, 1962, since she left the system’s employ at that time. The defense next called Mr. Walter Williams, an accountant and an admitted friend of the defendant’s husband, who testified that he conducted an audit for the month of August, 1962, and found no wrongdoing on the part of the defendant. On cross-examination, it became apparent that the witness had not concerned himself with the timing of the recorded deposits and shipments. Officer O’Leary, also an admitted friend of the defendant, was presented in an apparent attempt to impeach Greenfield’s testimony that there never was $13,-000 on hand on August 31, 1962. On cross-examination, this witness’ direct examination was impeached to the extent that O’Leary in no way controverted the testimony of Greenfield.

In urging that the facts adduced at trial do not establish the guilt of the defendant, the defendant places great stress on the fact that the alleged thefts were not detected for a period of months and thereby attempts to point the finger of guilt at someone other than the accused. There is nothing in the record to support this contention. Greenfield explained the “in transit” treatment given to the deposits and shipments. The testimony of the State’s auditor clearly revealed a systematic pattern of delays in the reporting of shipments and deposits. Greenfield’s testimony, if accepted by the triers of fact would support a guilty finding. There was also the testimony of the State’s document expert casting doubt on the manner of the obliteration of the dates in the Armored Express’ receipt book. The verdict indicates that the jury accepted the testimony of the State’s witnesses rather than that offered by the defense. The credibility of the witnesses was a matter of determination for the triers of fact, and upon review of the record, we find no reason to disturb the jury’s finding.

The next issue raised is whether the defendant was brought to trial within the required period as set forth under the Four-Term Act (c 38, § 748, Ill Rev Stats 1961 (now c 38, § 103-5)). Section 748 reads in pertinent part:

“. . . If any such person shall have been admitted to bail for an alleged offense, other than a capital offense, he shall be entitled, on demand, to be tried within four months after such demand: Provided, that if the court shall be satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day the court may continue the cause for not more than sixty (60) days.”

In the instant case, the defendant was arrested on July 23, 1963, and was admitted to bail. The State was granted several continuances and on December 18, 1963, the defendant was arraigned. The record does not disclose a demand for trial on any date prior to December 18, 1963. The State argues that even on December 18, 1963, the defendant did not make a clear demand for trial, but we find it unnecessary to decide this question since, assuming arguendo that proper demand was made on that date, the defendant was tried absent a violation of section 748. On April 10, 1964, the State asked the court for an extension of time in order to locate an alleged material witness, Richard Wayne. This petition was supported by an affidavit, and the court granted a forty-day extension. Trial commenced on May 20, 1964. Therefore, a violation of the Four-Term Act could only arise if the granting of the forty-day extension was improper. It is the defendant’s position that the State could have easily located the witness and that the petition for an extension was merely a subterfuge and was in fact fraudulent. There is no evidence before us to show fraud or subterfuge on the part of the State’s Attorney. It is interesting to note that Richard Wayne was called by both the prosecution and by the defense, and, as the defendant’s own witness, he testified that on August 31, 1962, Greenfield told him at the currency exchange that there was a shortage of $700 but that there was a possibility that there might be a much larger shortage. Such testimony corroborates Abe Greenfield and in no way supports the defendant’s theory that Greenfield had admitted on August 31 that there was $13,000 in the inner safe. In any event, even if subsequent events cast doubt on the importance or materiality of such a witness, these events are irrelevant to the issue whether the trial court abused its discretion in granting an extension to secure such a witness. In People v. Poland, 22 Ill2d 175, 174 NE2d 804, the defendant contested the granting of an extension to allow the State to locate an alleged material witness when in fact the State never called the witness. In rejecting the arguments of the defendant similar to those in this case, the Supreme Court said at page 178:

“In determining whether the granting of the continuance was a reasonable exercise of discretion, the situation must be viewed as it was presented to the trial judge at the time, not as it might appear in retrospect in the light of subsequent events. . . . Under the circumstances, we must assume that the court was satisfied that due exertion had been made to secure the evidence and that there were reasonable grounds for believing that it could be procured at a later date. . . . We cannot say that the trial judge abused his discretion in granting the continuance.”

(See also: People v. Canada, 81 Ill App2d 220, 225 NE2d 639.) In the case at bar, the trial court granted the extension upon a written affidavit of the State, and we are not prepared to say that the trial judge abused his discretion in so granting the extension.

The defendant also contends that there was a fatal variance between the indictment and the proof which caused her to be misled in preparing her defense. The indictment charged the defendant with theft on August 31, 1962, but at trial evidence was adduced to show numerous acts of alleged embezzlement between January, 1962, and August, 1962. It has been legislatively and judicially recognized that a crime such as embezzlement is a continuing offense and is not complete until the last known act in furtherance thereof has been committed. (SHA, c 38, § 3-8, Committee Comments; People v. Barrett, 405 Ill 188, 90 NE2d 94; People v. Preble, 316 Ill 233, 147 NE 124.) In People v. Dore, 339 Ill 415, 171 NE 554, the defendant had objected to evidence being admitted to show that he had presented worthless checks to cover up a shortage on dates subsequent to the date alleged in the indictment. In rejecting the defendant’s argument, the court said at page 419:

“The cashing of the checks on October 6 and 8, and the presentation of the checks on October 9, were all part and parcel and a continuation of the same confidence game by which, during a considerable period, the plaintiff in error had obtained money from the bank. While every indictment must allege the commission of the offense charged on a certain date within the time fixed by law for its prosecution, yet, unless, time is an essential ingredient of the offense, proof that it was committed at some time prior to the filing of the indictment and within the period prescribed by the Statute of Limitations is sufficient .... The evidence to which the plaintiff in error objected was therefore admissible.” (P 419)

It has also been held that in a prosecution for practicing a confidence game which also is a continuing offense, transactions occurring both prior to and subsequent to the offense charged are admissible to establish the intent of the accused. (People v. Levato, 330 Ill 498, 161 NE 731; People v. Marek, 326 Ill 11, 156 NE 772.) Therefore, we find no merit to this argument advanced by the defendant.

Another argument advanced by the defendant is that certain testimony of Officer O’Leary was improperly suppressed by the trial court. The record indicates that the court allowed the defense witness to ultimately testify to the content of the conversations which he had with Greenfield at the currency exchange on September 1, 1962. The defendant also attempted to elicit testimony from O’Leary as to a conversation between Greenfield and the defendant at the police station at which time Greenfield purportedly urged the defendant to plead guilty so that she could remain in his employ and pay back the stolen funds at a rate of $30 per week. Defense counsel was not permitted to cross-examine Greenfield as to what was said at the police station because the witness did not testify on direct examination to any conversations at the police station. The trial judge was given no indication that the defendant was attempting to lay a foundation for later impeachment so as to avoid the pitfalls of the hearsay rule. This Court fails to understand how such a purported statement would aid the defendant’s cause. In fact, it would appear that such a statement would serve to incriminate rather than to exculpate the defendant. Furthermore upon a review of the entire record, we conclude that the statement’s exclusion, even if it was erroneous, would not be so prejudicial as to constitute reversible error.

The defendant’s brief is replete with accusations of unfairness and prejudice of the trial judge and of the'prosecution. The record of proceedings contains over 1,200 pages many of which are filled with repetitious and groundless objections made by defense counsel. There are several instances when the court made comments to defense counsel in an attempt to insure an orderly and disciplined trial. Upon a review of the record, this court is unable to find any comments made by either the State or the court which would so prejudice the defendant so as to require a reversal of her conviction. The defendant even accuses the State of initimidating one of the defense witnesses prior to her testifying at trial. There is nothing in the record to substantiate such a charge.

For the foregoing reasons, the conviction of the defendant is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Patricia Y. Fannon, Plaintiff-Appellant, v. City of Aurora, a Municipal Corporation, and Officers Smithburg and Lawrence, Police Officers of the City of Aurora, Defendants-Appellees.
    Gen. No. 68-147.
    Second District.
    February 28, 1969.
    Rehearing denied March 27, 1969.

      Konstans and Catella, of St. Charles, for appellant.
    O’Brien, Burnell, Puckett & Barnett, and Dale C. Flanders, of Aurora, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff appeals from a summary judgment dismissing her suit against the City and two police officers based on alleged negligence and false imprisonment.

In the case against the City the sole issue is whether or not plaintiff’s service of notice by certified mail complied with the provisions of Ill Rev Stats 1965, c 85, § 8-102, concerning notice of injury to a local public entity or any of its employees.

The additional argument is made in the case against the officers that, by failing to deny the allegation in plaintiff’s complaint that she had “duly filed” the notice, they had thereby waived the requirement of personal service.

Plaintiff’s position is that since the defendants did have actual notice of the claim within the time provided, that the purpose of the statute was fulfilled, and under the doctrine of “substantial compliance,” the statute was satisfied. It is also urged that a literal reading of the statute would require that the plaintiff, herself, serve the notice and that to avoid absurd consequences we should interpret the statute to permit service by an agent, including the post office.

These arguments might have some weight if the statute did not clearly provide the form of service of notice, and make the notice a condition precedent to suit. See Ill Rev Stats 1965, c 85, §§ 8-102 (supra) and 8-103; City of Chicago v. James E. Mulligan Enterprises, 27 Ill App2d 481, 488, 170 NE2d 13 (1960). Service of notice by certified mail does not constitute personal service, nor does it comply with the personal service requirement. Haj v. American Bottle Co., 261 Ill 362, 364-366, 103 NE 1000 (1914); Throgmorton v. Mosak, 245 Ill App 330, 331 (1925); Eastwood v. Road Dist. No. 5, 230 Ill App 281, 283 (1923).

Prior to 1965 the statute provided that the injured party “shall file” the notice. In 1965 the language was changed to provide that the plaintiff “must personally serve” the notice. In either event, the sensible reference is to method or character of service of the notice; and the statute does not require that the party personally go to the office to either file the notice under the previous provision or to serve the notice under the present one. Service may be made by an agent, but in view of the interpretation which the cases have placed on “personal service,” we cannot conclude that the post office is the agent to make the service.

Under the prior statute it was held that the filing of the notice was mandatory and that “substantial compliance” (actual knowledge by the City) was not sufficient. See McCarthy v. City of Chicago, 312 Ill App 268, 277, 38 NE2d 519 (1941); Ouimette v. City of Chicago, 242 Ill 501, 507, 90 NE 300 (1909); Minnis v. Friend, 360 Ill 328, 332, 196 NE 191 (1935). Under the present statute, the requirement of “personal service” can, similarly, not be satisfied by service by mail, despite proof of actual knowledge.

Nor are we persuaded that the defendant Officers waived the requirement of personal service. The admissions made by the denial of the complaint merely were that the plaintiff did not “file” the notice. The complaint did not allege personal service as required by the statute, and the failure to deny the “filing” was in no way an admission that service had properly been made.

We, therefore, affirm.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.

       “8-102. Notice of injury. § 8-102. Within 6 months from the date that the injury or cause of action, . . . was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must personally serve in the Office of the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident and the name and address of the attending physician, if any.”


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Van Dyke, Defendant-Appellant.
    Gen. Nos. 68-89, 68-90.
    Second District.
    February 28, 1969.

      John 0. Vogel, Deputy Public Defender, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Helen Kenney, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The sole issue on this appeal is whether “Under all the circumstances disclosed in the record . . . the defendant was adequately represented by counsel.”

In the latter part of July, 1967, the defendant, Charles Van Dyke, was charged with various sexual offenses. He was unable to make bail and, consequently, remained in jail. Prior to indictment, he retained Carl Kuhn (herein called Kuhn) as private counsel, to represent him. Kuhn, and attorney John Lang (herein called Lang), who filed an appearance on behalf of the defendant, filed three petitions for a writ of habeas corpus, seeking his release, and Lang acted as trial counsel on his behalf.

In Circuit Court cause number 67-1899 G, the defendant was indicted for indecent liberties with a child, Barbara Godenius. This case was tried before a jury on November 14, 1967. Lang called no witnesses on behalf of the defendant, but did attack the weaknesses of the People’s case. The jury returned a not guilty verdict.

On November 21, 1967, a jury returned a verdict finding the defendant guilty in cause number 67-2526 G. The information in this cause contained two counts. Count I charged the defendant with contributing to the sexual delinquency of Rebel Rayboss, a minor; and Count II made the same charge with reference to Mary Anne Van Dyke, the minor daughter of the defendant.

The defendant was also indicted, in Circuit Court cause number 67-1898 G, for indecent liberties and aggravated incest with said Mary Anne Van Dyke. This case was heard before a jury which rendered a verdict of guilty on November 22,1967.

Lang, who also acted as the defendant’s trial counsel in the two cases wherein guilty verdicts were returned, followed the same tactical procedures therein as he had used in the jury trial wherein the not guilty verdict was returned.

In Circuit Court cause number 67-1898 G, the defendant was sentenced to serve not less than 6 nor more than 12 years at the State Pentitentiary at Joliet; and in cause number 67-2526 G, he was sentenced to serve 1 year at said penitentiary, this sentence to be served concurrently with that in cause number 67-1898 G.

In each case wherein a jury verdict of guilty was returned, Lang moved for a mistrial; filed a motion for a directed verdict at the close of the People’s case; submitted adequate instructions on behalf of the defendant; fully argued the case to the jury; filed a comprehensive motion in arrest of, and to vacate, the judgment; and filed motion for new trial. He fully argued the post-trial motions, offered numerous citations in support of the motions and appeared for the defendant at the hearing in aggravation and mitigation in each case. After sentence in cause number 67-1898 G, the defendant asked for an appeal, and the court appointed Lang to represent him therein.

After the hearing in aggravation and mitigation in cause number 67-2526 G and the pronouncement of sentence, the defendant addressed the court and made a long and rambling statement wherein he stated that Kuhn, his lawyer, came to the jail to get his money but never came back; that neither Kuhn nor Lang visited him in jail to learn about his case; that the facts were not brought out during the trial; that he was innocent; that his wife and Mrs. Rayboss lied on the witness stand and told Mary Anne Van Dyke and Rebel Rayboss what to say, as witnesses; that his wife’s boyfriend had coached Mary Anne; that his present wife and his first wife were both unfaithful to him, and his present wife framed him; that his attorneys would not let his mother testify, and her testimony would have helped to clear him; and that his counsel would not let him take the stand.

In reply to the defendant’s statement, Lang stated that he and Kuhn brought the defendant’s mother to court during the trials, but concluded not to call her as a witness; that they knew what they were doing when they “didn’t put her on the stand.”

At the hearing in aggravation and mitigation in cause number 67-1898 G, it was brought out that the defendant was indicted in Cook County in 1956 for contributing to the delinquency of a minor; that he entered a plea of guilty to such charge; and that he was granted probation.

The trial judge, before whom the two cases (wherein the jury rendered verdicts of guilty) were tried, remarked that the defendant had been well represented at the trial, and that Lang’s conduct at the trials indicated that he had spent “a lot of time” in planning his defense. Even after the defendant made the statement, Lang represented him at the aggravation and mitigation hearing and argued in mitigation of the offense. After sentence, the defendant said he would like to have Lang represent him on appeal. Lang offered to do so, and was appointed by the court to prosecute the appeal.

The common-law record reflects a letter dated March 8, 1968, from the defendant, addressed to the clerk, inquiring re the status of his appeals. On March 26, 1968, the court entered an order appointing the Public Defender of DuPage County to represent the defendant. The record is silent with reference to why Lang did not perfect the appeals. In this court, the appeals were consolidated for argument and opinion, and brief and excerpts were filed on behalf of the defendant by the Public Defender.

Under the circumstances herein related, it is obvious that the written post-trial motions prepared by Lang would not specify inadequacy of counsel as a basis for post-trial relief. Section 116-1 of the Code of Criminal Procedure of 1967, which was in effect at the time of the defendant’s trial, requires that motions for a new trial in a criminal case shall be in writing and shall specify the grounds therefor. (Ill Rev Stats 1967, c 38, par 116-1.)

Under the doctrine of the People v. Flynn, 8 Ill2d 116, 118, 119, 133 NE2d 257 (1956), if the party seeking a new trial files a written motion specifying the grounds relied on therein, he is confined on review to the reasons specified in the trial court; however, if such party makes a nonspecific oral motion for new trial, which is not objected to by the State, then all issues may be raised on review. Also see: People v. Whitehead, 35 Ill2d 501, 503, 504, 221 NE2d 256 (1966). However, Supreme Court Rules 615(a) provides that errors or defects affecting substantial rights may be considered on appeal although they were not brought to the attention of the trial court. Also see: People v. Burson, 11 Ill2d 360, 371, 143 NE2d 239 (1957). Consequently, we will consider the issue of inadequacy of counsel.

In People v. Morris, 3 Ill2d 437, 121 NE2d 810 (1954), at pages 444 and 445, the court stated: Also see: People v. Nordstrom, 73 Ill App2d 168, 182, 183, 219 NE2d 151 (1966).

“Where the defendant selects his own attorney the court has held, almost without exception, that the failure of such counsel to exercise care and skill in the trial of the case does not afford a basis for reversing a judgment of conviction. (Citations.)
“In People v. Pierce, 387 Ill 608, it was said at page 615: Tierce employed his own counsel in the court below. The record does not disclose that he was either incompetent or remiss in performing his duty toward plaintiff in error. But even if it were otherwise, plaintiff in error’s contention that he was poorly represented at the trial would be of no legal moment, as his attorney was of his own choosing.’ To the same general effect is a recent Post-Conviction Hearing Act case, Mitchell v. People, 411 Ill 407. In holding that the petitioner was not denied due process of law by reason of the alleged incompetency of his trial attorneys, this court said at page 407-8: ‘Ordinarily, a defendant who retains counsel of his own selection is responsible if that counsel does not faithfully serve his interests. Any other rule would put a premium upon pretended incompetency of counsel; for, if the rule were otherwise, a lawyer with a desperate case would have only to neglect it in order to ensure reversal or vacation of the conviction.’ ”

In Morris, at page 443, the court stated:

“The conduct of counsel in a criminal trial in a State court may be such as to amount to the defendant being deprived of due process of law in violation of the fourteenth amendment of the Federal constitution. It has been established that the assistance of counsel may, under certain circumstances, be an essential element of due process. Since Powell v. Alabama, 287 US 45, decided in 1932, this general question has been considered many times. See, for example: White v. Ragen, 324 US 760, 763-4; Wade v. Mayo, 334 US 672; Tompsett v. Ohio, 146 F2d 95, 98; United States ex rel. Hall v. Ragen, 60 F Supp 820; Coates v. Lawrence, 46 F Supp 414, 421-2; Wilson v. State, 222 Ind 63, 79-82.”

It is, thus, apparent that the issue of inadequacy of counsel could have been the alleged error in a petition under the Post-Conviction Hearing Act, grounded on the constitutional issue of deprivation of due process of law. An appeal from the order entered on such petition would be directly to the Supreme Court. (Ill Rev Stats 1967, c 38, pars 122-1 to 122-7 inch; art VI, Ill Const 1870, § 5.) Such fact, however, does not necessarily preclude us from deciding this case, in that Supreme Court Rule 365 (Ill Rev Stats 1967, c 110A, par 365) provides that a matter decided by either the Supreme or Appellate Court shall not be subject to collateral attack on the ground that it should have been decided by the other court.

Also, it is questionable herein whether the constitutional issue is of such substantial nature as to require a decision by the Supreme Court. See: First Nat. Bank & Trust Co. v. Evanston, 30 Ill2d 479, 481-486, 197 NE 2d 705 (1964). Consequently, we will treat this case as one wherein a constitutional question is raised which lies within the penumbral area wherein either this court or the Supreme Court has appellate jurisdiction. People v. Valentine, 60 Ill App2d 339, 348, 349, 208 NE2d 595 (1965).

The Public Defender has urged that the evidence produced by the People was introduced by means of leading questions; that the defendant’s private counsel never visited him at the jail in order to obtain information to assist in investigating the charges on his behalf; and that inadequate objection was raised by the defendant’s private counsel as to the competency of Mary Anne Van Dyke and Rebel Rayboss, each aged 9, to testify.

The record herein indicates that prior to trial, Lang interviewed the child victims and others, who were called as witnesses for the People; that his acts in this respect were reported to the State’s Attorney’s office; and that he caused timely orders to be entered in each case for the psychiatric examination of the defendant. At the trial of the cases, he interjected Mrs. Van Dyke’s acquaintance with Joe Mize—her alleged boyfriend—and inferred therefrom, an evil motive in connection with Mrs. Van Dyke’s acts in causing criminal charges to be preferred against the defendant. He referred to Mrs. Van Dyke’s pending divorce proceeding to buttress the inference.

The propriety of objecting to leading questions asked by the People and the advisability of making a strenuous objection to the competency of Mary Anne Van Dyke and Rebel Rayboss, a witness, involved an area of judgment, tactical in nature, which could well have been decided differently by any given number of capable trial lawyers.

In People v. Washington, 41 Ill2d 16, 241 NE2d 425 (1968), at page 428, the court stated:

“An error in judgment alone does not amount to incompetency of counsel . . . and the fact that the same warrant involved in this case was quashed upon motion in the case of Mary Canady does not prove that the representation provided Washington sank so low as to violate his constitutional right to counsel. ‘(T)he fact that some other lawyer followed a different course in another case, or would have done differently had he been acting as counsel, is no ground for branding the appointed attorney with the opprobrium of ineffectiveness, or infidelity, or incompetency. The practice of law is an art as well as a science. As no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight. Scott v. United States, (6 Cir, 1964), 334 F2d 72, cert den 379 US 842, 84 S Ct 81, 13 L Ed2d 48.’ (Williams v. Beto (5th cir), 354 F2d 698, 706.) . . .
“Where a defendant selects his own attorney this court has held ‘almost without exception, that the failure of such counsel to exercise care and skill in the trial of the case does not afford a basis for reversing a judgment of conviction.’ (People v. Morris, 3 Ill2d 437, 444, 121 NE2d 810, 815.) A standard for determining incompetency which we have often cited (People v. Clark, 7 Ill2d 163, 168, 130 NE2d 195; People v. Stephens, 6 Ill2d 257, 259, 128 NE2d 731; People v. Reeves, 412 Ill 555, 562-563, 107 NE2d 861) was set out by the United States Seventh Circuit Court of Appeals: ‘If the action of counsel in the presence of the court in the conduct of the trial reduces the trial to a travesty on justice, such conduct might be considered on the proposition that such a trial was a denial of due process. The conduct of counsel in the trial of a case is that of only one of the officers of the court whose duty it is to see that the defendant receives a fair trial. He is only one of the actors in the drama. The best of counsel makes mistakes. His mistakes, although indicative of lack of skill or even incompetency, will not vitiate the trial unless on the whole the representation is of such low caliber as to amount to no representation and to reduce the trial to a farce.’ United States ex rel. Feeley v. Ragen (7th cir), 166 F2d 976, 980-981; see also People v. Strader, 23 Ill2d 13, 177 NE2d 126; People v. Pride, 16 Ill2d 82, 156 NE2d 551; Mitchell v. People, 411 Ill 407, 104 NE2d 285; People v. Clifton, 408 Ill 475, 97 NE2d 298.”

The most that can be said of the alleged inadequacies of counsel in the case at bar is that he may have erred in his judgment in certain respects. However, he was counsel of defendant’s own choosing, and such inadequacies neither deprived the defendant of a fair trial nor established such conduct of counsel as might be considered to sustain the proposition that the defendant’s trial was a denial of due process.

Accordingly, the judgment herein is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: ME. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James E. Juve, Defendant-Appellant.
    Gen. No. 68-92.
    Second District.
    February 28, 1969.

      John T. Beynon, Public Defender, of Rockford, and John McNamara, Assistant Public Defender, for appellant.

      William E. Nash, State’s Attorney of Winnebago County, of Eockford, and Keith S. Morse, Assistant State’s Attorney, for appellee.
   ME. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, James E. Juve, was charged with having committed a theft in violation of section 16.1 of the Criminal Code (Ill Rev Stats 1967, c 38, par 16-1). A jury found him guilty of the charge and the court entered a judgment of conviction upon the verdict. Thereafter, his request for probation was denied and the court sentenced him to a term of not less than two nor more than seven years in the State Penitentiary.

On appeal, the defendant contends that the trial court erred: (1) In not granting his motion to dismiss, or to amend, the information; (2) in admitting into evidence his conversation with the police officers at the time he was apprehended; (3) in refusing to admit certain other testimony; (4) in the giving of certain instructions requested by the People; (5) in imposing a sentence of two to seven years. He also contends that the People failed to prove, beyond a reasonable doubt, that he was guilty of the offense charged.

The factual background of the offense is uncomplicated. On September 22,1967, between 9:30 a. m., and 10:00 a. m., Mrs. Bruce Eeam parked a 1963 Chevrolet, owned by her husband, in a shopping center parking lot in front of a Jewel Tea supermarket. She left her keys in the ignition, went into the store, and when she returned— about five minutes later—the car was missing. She immediately called her husband and the police. Within minutes after the call, police officers, Francis and Nelson, received a radio message describing the missing car, and observed it stopped at a traffic signal in downtown Eockford, approximately thirty-five blocks from the location where Mrs. Ream had parked it. The police stopped the car and an officer then and there asked on-the-scene questions of the driver (the defendant) and after the questions were answered, the defendant was arrested.

The defendant waived a grand jury, and the information charged the following:

“The State’s Attorney of said County (Winnebago) charges: That on the 22nd day of September, 1967, in the County of Winnebago and State of Illinois, JAMES E. JUVE committed the offense of Theft, in that he knowingly obtained unauthorized control over a certain 1968 Chevrolet automobile, having a value exceeding One Hundred Fifty Dollars ($150.-00), the property of Bruce Ream, JAMES E. JUVE thereby intending to deprive Bruce Ream permanently of the use or benefit of said property, in violation of Paragraph 16-1, Chapter 38, Illinois Revised Statutes.” (Emphasis ours.)

Section 16-1 of the Criminal Code provides that a person commits a theft when he obtains unauthorized control over the property of an owner, “and” intends to deprive the owner permanently of the use or benefit of the property. The defendant contends that the use of the word “thereby” in the information, rather than the word “and” as used in the statute, was prejudicial to him in that it suggested to the jury that when he obtained unauthorized control over the car, he automatically then had the intent to deprive the owner permanently of its use.

We agree with the defendant that the wording used in the information was not correct and that the information should have used the word “and” in lieu of the word “thereby.” The impropriety was not, however, sufficiently prejudicial to the defendant to warrant reversal. It was made abundantly clear to the jury at all times throughout the trial that there were two elements necessary to the establishment of the offense. In the opening statement, counsel for the defendant clearly and explicitly so advised the jury and stated that, at the close of the case, the court would instruct them that the information states that the defendant “must one, knowingly obtain unauthorized control over a certain automobile; and that two, he must intend to deprive the owner permanently of the use or benefit of that car.” The instructions given by the court did clearly advise the jury of the two elements required for a finding of guilt.

An information need not be in the precise terms of the statute defining the offense. People v. Patrick, 75 Ill App2d 93, 97, 220 NE2d 243 (1966). Also see: People v. Hill, 68 Ill App2d 369, 375, 376, 216 NE2d 212 (1966). The defendant was adequately informed of the nature and elements of the charge made against him. All parties were, at all times, agreed as to the elements of the charge. In view of the admonitions to the jury, no substantial rights of the defendant were affected and the technical irregularity does not warrant our reversal. People v. Shook, 67 Ill App2d 492, 497, 214 NE2d 546 (1966); 15 ILP, Criminal Law, §924.

One of the arresting police officers testified that when he stopped the defendant, the following conversation took place: “I asked Mr. Juve where he got the car and he says, you know where I got the car, he says you fellows are making a big deal out of this.” The defendant now contends that this statement should not have been admitted into evidence because the prosecution did not give notice of it. Chapter 38, par 114-10, Ill Rev Stats 1967, provides that the prosecution must, on motion of the defendant, furnish him with a copy of any written confession or information relative to any oral confession. While the defendant concedes that the statement made in the conversation did not constitute a confession, he contends that the foregoing statute is no longer valid in view of Miranda v. Arizona, 384 US 436 (1966); that the effect of Miranda is to require the State to furnish him with a copy of any type of written statement or of notice of intent to prove up any type of oral statement made by him; and that in the absence of such notice, an oral statement by him may not be admitted into evidence.

We do not believe that Miranda can be given the scope that the defendant seeks. Miranda is intended to guard against the abuses possible in custodial interrogation. The court clearly indicated that it did not intend to hamper the traditional function of police officers in investigating crimes and that general on-the-scene questioning as to facts surrounding a crime or other general questioning in the fact-finding process was not to be affected by the decision. Miranda v. Arizona, supra, 477, 478. In summarizing, the court, on page 478 stated that the time at which the procedural safeguards it was discussing came into question was “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, . . . .” Also see: In re Orr, 38 Ill2d 417, 423, 424, 231 NE2d 424 (1967); 10 ALR3d 1054, 1059, 1060. We find no error in the trial court refusing to strike the testimony of the police officer in this regard.

The defendant also contends that the trial court erred in refusing to permit him to testify regarding the location of certain of his personal belongings, allegedly of considerable value. His contention is that this evidence would have shown that these belongings were located in Rockford, and such evidence would have tended to indicate that he had no intention of leaving Rockford with the car, and, thus, had no intent to “permanently deprive” the owner of its use or possession. The defendant could, of course, have the requisite intent to constitute a violation of the statute without any design to leave this city. He did testify that his personal possessions were in a local hotel and that he later had some person bring them to him at the jail. It seems apparent that he could, at some later time on the day in question, have placed all of these possessions in the car. Consequently, we cannot agree that this testimony was vital to negate any impression that the defendant had no reason to stay in Rockford. We are of the opinion that the trial court correctly rejected this evidence.

The defendant contends that two of the instructions given by the court were erroneous. One instruction contains the language of the information. The other instruction stated as follows:

“The Court instructs the jury in view of the fact that intent involved is a mental state known only to the actor, the intention of a person committing an act may be inferred from all the evidence in the case surrounding the commission of such act. Intent may be proven by the act done, and a sane man is presumed to intend the natural and probable consequences of an act intentionally done, unless some other intention is proven or appears from all the evidence in the case.”

The defendant contends that the net result of these two instructions was that evidence of the taking of the car, itself, established the intent to deprive the owner permanently of its use—the second requisite to a conviction for theft. However, three of the defendant’s given instructions—Instructions Nos. 5, 6 and 7—relate specifically to intent, and the meaning of “permanently deprived.” Instructions are to be considered as a whole, and not singly. Where the series of instructions, considered together, correctly state the applicable law, a party may not single out one, which standing alone, might itself be inaccurate. People v. Epping, 17 Ill2d 557, 567, 162 NE2d 366 (1959); People v. Simmons, 407 Ill 417, 421, 95 NE2d 477 (1950).

The contention of the defendant is like that made in People v. Kimler, 324 Ill 445, 155 NE 299 (1927). At page 449, the court noted that the two instructions complained of were defective in that neither instruction contained any statement that intent to damage and defraud was a necessary element of the crime charged. The court pointed out, however, that other instructions specifically referred to the requisite intent, and concluded that the instructions, considered as a series, substantially presented the law of the case fairly to the jury, and that the defect charged with reference to the instructions, therefore, did not constitute reversible error.

There was ample evidence for the jury to find the defendant guilty beyond a reasonable doubt, of the offense charged. Under the evidence, a reviewing court would be unwarranted in finding that the State failed to prove the defendant guilty beyond a reasonable doubt.

The defendant also contends that the sentence imposed is excessive and asks that it be reduced by this court. This court is given the power to reduce a sentence by virtue of Supreme Court Rule 615 (b) (4). (Ill Rev Stats 1967, c 110A, par 615 (b) (4).) When a sentence is imposed within the limits prescribed by statute, the sentence will not be disturbed upon a review unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that it is manifestly in excess of the proscription of section 11 of article II of the Illinois Constitution requiring that all penalties be proportioned to the nature of the offense. People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958). The imposition of sentence is peculiarly within the discretion of the trial court and should not be interfered with unless clearly abused. People v. Nordstrom, 73 Ill App2d 168, 183, 219 NE2d 151 (1966).

The record indicates that the defendant had pleaded nolo contendere in the State of Colorado, to a charge of theft of a rifle and riding saddle; and that he had been charged with criminal trespass to an auto, in Rockford. It is apparent that his difficulties stem from the overuse of alcoholic beverages; and that at the time of the incident in question, he was, at least, partially intoxicated. While he has been gainfully employed during the greater portion of his adult life, his tendencies toward violation of, and disrespect for, the law have increased. It appears to us, from the background of the defendant, and the nature of his offenses, that a proper balance between his liberty and the existence of an organized society, which maintains public order, would sustain the propriety of the sentence imposed by the trial court.

In People v. Miller, 33 Ill2d 439, 211 NE2d 708 (1965), at pages 444 and 445, the court stated:

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

Upon a review of the record, we cannot say that the trial court abused its discretion in imposing the sentence in question.

Accordingly, the conviction and sentence of the defendant is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: PRESIDING JUSTICE STOUDER.

text:
    Marvin L. Waldron and Jean C. Waldron, Plaintiffs-Appellants, v. Lissa Mae Waldron and Kathryn E. Snyder, Defendants-Appellees.
    Gen. No. 68-23.
    Third District.
    March 4, 1969.
    Winstein and Kavensky, of Rock Island, for appellants; H. Moss Meersman, of Moline, for appellees.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


author: MR. JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Timothy Spears and John Spears, Defendants-Appellants.
    Gen. Nos. 68-48, 68-49.
    Second District.
    March 4, 1969.

      Carbary, Carbary & Chapski, of Elgin, for appellants.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Frank Wesolowski, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On May 21, 1966, the defendant, Timothy Spears was married in DuPage County. A reception followed and about 9:30 p. m., two deputy sheriffs came to the home where the reception was being held in response to a radio call. They first went to the front door and then walked to the rear of the building where a number of people were congregated. They made inquiry for the owner of the home, at which point the defendant, Timothy Spears, walked up to them and said, “We don’t need any cops here.” He then hit one of the deputies in the head. In turn, another deputy hit Timothy with a flashlight. When Timothy got up he was told that he was under arrest. Upon receiving this information, he kicked a deputy in the stomach. In the battle which followed, the first two deputies and, apparently, others who had arrived on the scene, were engaged with most of the guests at the wedding reception. Timothy’s brother, the defendant, John Spears, was involved in the battle. John choked one of the deputies, struck him several times and finally bounced his head on the blacktop driveway. Ultimately, a sufficient number of deputies arrived so that the disturbance was quelled and the defendants, Timothy and John, were placed in custody together with other persons who are not involved in this appeal.

Both defendants were indicted for the crime of aggravated battery and were found guilty of that crime by a jury. The trial court placed John Spears on probation for a period of two years, but denied probation to Timothy Spears and sentenced him to the State Farm at Vandalia for a period of eleven months. The defendants’ post-trial motions were denied and this appeal was filed raising three issues: First, that the evidence was not sufficient to convict the defendants; Second, that the defendants were charged with the wrong crime, and finally that the trial court’s rulings on instructions deprived the defendants of a fair trial.

The case was tried for eight days before the jury. Numerous witnesses testified and obviously from the fact that there was a confused melee at the time in question, the evidence is in conflict. The jury saw and heard the witnesses and several persons who were arrested at the same time as these defendants were found not guilty.

From our own examination of the record we reach the same conclusion as did the Supreme Court in the case of People v. Lobb, 17 Ill2d 287, 161 NE2d 325 (1959), when the Court said at page 294, “On review in a criminal cause, this court will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of defendant’s guilt. (Citations omitted.) Where the evidence is conflicting, the credibility of the witnesses and the weight to be given their testimony is a question for the jury or for the trial court, if the case is tried without a jury, and this court will not substitute its judgment for that of the jury or trial court. (Citations omitted.) We are satisfied that the evidence establishes the guilt of the defendant beyond a reasonable doubt and the judgment must be affirmed unless substantial prejudicial error occurred during the trial.” See also, People v. Williams, 40 Ill2d 522, 526, 240 NE2d 645 (1968).

We recently decided that the acquittal of other parties in the same case is not grounds to relieve a particular defendant of his responsibility, People v. Quinn, 96 Ill App2d 382, 238 NE2d 619 (1968). Indeed the fact that the jury found certain defendants not guilty is an indication that they carefully considered the evidence before them. We conclude from the examination of the record that there was substantial evidence upon which the jury could base its findings of guilt. We will not substitute our judgment for that of the jury and we will affirm unless there is some substantial prejudicial error in either the matter of the charge or in the instructions.

The defendants next allege that they were charged with the wrong crime. They argue that they should have been charged with resisting a police officer and not with aggravated battery. Section 12-4 (b) (5) of the Criminal Code (Ill Rev Stats 1965, c 38, § 12-4 (b) (5)) provides in part:

“A person who, in committing a battery, either . . . knows the individual harmed to be a peace officer, or a person summoned and directed by him, while such officer is engaged in the execution of any of his official duties including arrest or attempted arrest; commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to five years.”

The Committee Comments (SHA, c 38, § 12-4 at page 712) state that this type of aggravated battery reduces the maximum penalty to five years because it does not involve great bodily harm nor permanent disability or disfigurement. The Comments note, however, that “It involves a battery committed under aggravated circumstances from which great harm might and usually does result (although it did not in the particular case), and therefore it constitutes a more serious threat to the community than a simple battery.” The legislature could reasonably have believed that batteries committed against certain persons, namely peace officers engaged in the execution of their official duties, were more serious than simple batteries and should be given more severe punishment as a deterrent.

In this case the jury could reasonably have found that the defendants knew the officers were policemen, because in fact all of the officers, except one, were in uniform, and furthermore the jury could reasonably have found that the defendant, Timothy Spears, was placed under arrest immediately and that everything that happened in the melee occurred after his arrest. Therefore, the jury could reasonably have found and did find that the officers were engaged in the execution of their official duties, including arrest or attempted arrest.

The defendants cite two cases as authority for the proposition that they were not charged with the right offense. The first is People v. Fort, 91 Ill App2d 212, 234 NE2d 384 (1968). In that case, under similar circumstances, the defendant was charged with resisting or obstructing a peace officer. The case does not hold that the defendant could not have been charged with aggravated battery and, in fact, the subject is not discussed. For our purposes, however, we note that the Court did say, “Arrests frequently are made under hazardous conditions and the peace is best preserved when the citizen submits to arrest without regard to the merits of the case. (Citations omitted.) Our courts have gone to great length to preserve the individual’s right to an impartial trial and trial by combat has long been outlawed.” That language is particularly appropriate to the case at bar.

The other case cited by the defendants is People v. Young, 100 Ill App2d 20, 241 NE2d 587 (1968). In that case police officers, with a search warrant, went to the wrong apartment, an altercation occurred and the defendant was charged with resisting an officer and battery, but not with aggravated battery. The court simply held that the defendant was not guilty under the circumstances and did not discuss the question of aggravated battery. The cases cited by the defendants do not apply to the facts of this case. The defendants were properly charged with aggravated battery, People v. Quinn, supra.

Finally, the defendants contend that the trial court committed reversible error in giving and refusing instructions. In this connection the defendants raise some fourteen different instructions which were either erroneously given or erroneously refused. It would serve no purpose for us to discuss each instruction individually. Taking the instructions which were given as a whole we are satisfied that the jury was properly informed. It is true that the defendant is entitled to have instructions which correctly state their theory of the case, but he is not entitled to have his theory repeated interminably. In this case the court did give proper instructions which clearly set forth the defendants’ theory. The fact that the court did not give repetitive instructions on the theory of the defendants certainly is not error. On the contrary, it appears to us to be good practice.

We do deem it necessary to discuss certain instructions. The defendant claims error occurred when the court refused to give its Instruction No. 6, which said, “The burden of proving beyond all reasonable doubt every material allegation necessary to establish the defendant’s guilt rests upon the State throughout the trial, and the burden of proof never shifts to the defendants.”

It is true that the court refused that instruction, however the court gave defendant’s Instruction No. 41, which told the jury, “Each defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberation on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty. The State has the burden of proving the guilt of the defendant beyond a reasonable doubt and this burden remains on the State throughout the trial, and defendant is not required to prove his innocence.” The foregoing is typical of the complaints made by the defendant against the instructions. This instruction correctly and adequately explained the law to the jury and the failure of the trial court to say it again was not error.

The defendant alleges that the trial court committed error when it refused to give defendant’s Instruction No. 12, which stated, “The Court instructs the jury that if there are two theories which may lawfully be drawn from the evidence, one pointing to guilty and the other to the absence of guilt, they should find the defendant not guilty.” The Supreme Court considered that very instruction in the case of People v. Lexow, 23 Ill2d 541, 179 NE2d 683 (1962), and said at pages 544-545, “This instruction is proper only when opposing theories of guilt or innocence arise out of the same fact. (Citation omitted.) The evidence here was conflicting on all material points and the instruction was properly refused.” In the case at bar the evidence was in great conflict on all material points and, therefore, it was proper for the trial court to refuse the instruction. See, People v. Malmenato, 14 Ill2d 52, 150 NE2d 806 (1958).

A review of the instructions as a whole indicates to us that all of the instructions of which defendants now complain were either covered by other instructions or were properly refused.

In conclusion we believe that the defendants received a fair trial and were properly convicted of a proper charge brought against them. Their conviction is therefor affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.