text:
    Hardware Dealers Mutual Fire Insurance Company, a Corporation, Plaintiff-Appellant, v. William Ross, Executor of the Will of Eunice Ross, Deceased, Defendant-Appellee.
    Gen. No. 69-116.
    Third District.
    September 25, 1970.

      Dennis Fox, of Moline, for appellant.
    Edward Eagle, of Rock Island, and Andrew Kopp, of Moline, for appellee.
   RYAN, P. J.

This is a suit by plaintiff insurance company to recover from the defendant $4,000 which it had paid to the defendant by virtue of a judgment the defendant had secured against the plaintiff in another suit which had been instituted to recover under the terms of a medical expense provision of an automobile insurance policy.

On April 19,1967, Eunice Ross was riding as a guest in a motor vehicle owned and operated by Frances Neely when it was involved in a collision with another automobile driven by Edna Bowman. Both drivers were killed in the collision. Eunice Ross was seriously injured and died from her injuries on May 9, 1967. Her medical and funeral expenses were $4,296.87.

Neely had an insurance policy with Hardware Dealers which covered any medical or funeral expenses incurred by anyone riding in her car up to $4,000. Also, Eunice Ross, the guest, had an insurance policy with Ohio Casualty which covered her for medical and funeral expenses up to $1,000. Said policy provided that such coverage was excess over and above any other applicable insurance. Both of these companies refused to pay under the medical expense provisions of their policies.

On March 4, 1968, William Ross, Executor filed a suit against the Executor of the estate of Edna Bowman for the wrongful death of Eunice Ross.

On April 16, 1968, William Ross, Executor filed a suit against Hardware Dealers and Ohio Casualty to recover under the medical expense provisions of their respective policies.

On May 20, 1968, Hardware Dealers filed an answer and denied that Eunice Ross had incurred hospital, medical and funeral expenses in the amount of $4,296.87 and denied that at the time of the accident, Frances Neely, had an insurance policy with Hardware Dealers providing medical expense coverage up to $4,000.

On May 29, 1968, after a hearing before the court, a judgment was entered in the amount of $19,296 in the wrongful death action brought by William Ross, Executor, against the estate of Edna Bowman, deceased.

On June 24, 1968, William Ross, Executor, in consideration of $8,250 executed an agreement not to proceed further in the wrongful death case by way of execution, garnishment or otherwise against either the administrator of Edna Bowman’s estate or the insurer of Edna Bowman whose policy limits were $10,000.

Subsequent to the above settlement of the wrongful death judgment, counsel in the suit by William Ross as Executor against the two insurance companies entered into a stipulation that Eunice Ross had incurred hospital, nursing, medical and funeral expenses in the amount of $4,296.87, that at the time of the collision she had a policy of insurance with Ohio Casualty which afforded medical expense coverage of $1,000, and that the driver of the vehicle in which she was riding, Frances Neely, had a policy of insurance with Hardware Dealers which afforded medical expense coverage for Eunice Ross of $4,000. On September 4, 1968, the court, on the basis of this stipulation and the pleadings and the provisions of the insurance policies, entered judgment in favor of William Ross, Executor, and against Hardware Dealers in the amount of $4,000 and against Ohio Casualty in the amount of $296.87. No appeal was taken from this judgment order.

On the same day, September 4, 1968, plaintiff herein notified the attorneys for the defendant herein that in the event of payment under the medical expense coverage provision of the policy the company “hereby puts you on notice” of its subrogation rights to any right of recovery Eunice Ross may have against any third person and of the company’s lien to the extent of any payments it may make under said coverage on any recoveries by way of settlement or judgment that may be recovered from any third person.

Again, on October 3, 1968, the insurance company, plaintiff herein, in a letter accompanying the draft in the amount of $4,000 representing payment of the judgment under the medical expense provision suit above referred to, put the defendant on notice of the subrogation provisions of the policy.

On December 13, 1968, the attorney for the defendant wrote the plaintiff and advised it that in his opinion he did not feel that the plaintiff was entitled to be subrogated under the provisions of its policy.

On January 6, 1969, the plaintiff herein filed this suit alleging that at the time of the accident Frances Neely had a policy of insurance with the plaintiff company which afforded medical pay coverage up to $4,000; that the plaintiff paid the defendant $4,000 pursuant to said coverage; that said policy had a subrogation provision in it with regard to payments under the medical pay coverage; that the defendant brought a wrongful death action against the estate of the driver of the other automobile involved and by way of settlement thereof received in excess of $4,000; that pursuant to said settlement the defendant gave a release to the defendant in the wrongful death action; that the giving of the release constituted a breach of the subrogation provisions of plaintiff’s policy and prejudiced the subrogation rights of the plaintiff. The complaint then prayed for judgment against the defendant in the amount of $4,000.

The subrogation provisions of plaintiff’s policy of insurance relating to payments under the medical expense coverage of the policy states:

“In the event of any payment under the Medical Expense Coverage of this policy, the company shall be subrogated to all the rights of recovery therefor which the injured person or anyone receiving such payment may have a.gainst any person or organization and such person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing after loss to prejudice such rights.”

No explanation was offered as to why the issue presented in this case was not raised as a defense when Ross sued Hardware Dealers to recover the medical expenses. Also, the defense of res judicata has not been pleaded by Ross in this case. The two cases involve the same parties and it would appear that the issue raised in this case could have been litigated as a defense in the prior case. In such event, the doctrine of res judicata would prevent the relitigating of the question at this time. Schoenbrod v. Rosenthal, 36 Ill App2d 112, 183 NE2d 188; Jones v. Reuss, 47 Ill App2d 212, 197 NE2d 709; 23 ILP Judgments, § 378; 50 CJS Judgments, § 682. However, since the defense of res judicata has not been raised in this case, we must consider it as having been waived. 50 CJS Judgments, § 822.

The complaint alleges that defendant settled the wrongful death suit and gave a release to the defendant in that case and that the giving of the release constituted a breach of the provision of plaintiff’s policy prejudicing its right of subrogation. The defendant denies he gave a release in the wrongful death suit, but alleges he had obtained a judgment against the driver of the other car in the amount of $19,296 and that he had subsequently executed an agreement not to proceed by execution or otherwise on payment of $8,250. The defendant also denies that the execution of the document constituted a breach of the policy provisions because the plaintiff had wrongfully denied liability under the policy.

The trial court in its opinion held for the defendant, stating as reasons therefor, basically: (1) that the plaintiff had denied liability under its policy and had, in fact, denied the existence of the policy until after the settlement of the wrongful death judgment and (2) the settlement by the defendant of his wrongful death judgment did not constitute full recovery of the debt to which the plaintiff claims the right of subrogation.

The plaintiff does not here contend that the determination of the trial court is against the manifest weight of the evidence nor does the plaintiff here contend that as a matter of law the document executed in the wrongful death action constituted a satisfaction in full of the obligation to which the plaintiff claims the right to be subrogated. We must, therefore, accept the finding of the trial court that there has not been a full recovery of the debt to which the plaintiff claims subrogation.

The general rule is that partial subrogation will not be allowed where the debt has not been paid in full. 83 CJS Subrogation, § 10.

The reason for the rule is stated in Robbins v. Slavin, 292 Ill App 479,11 NE2d 651, at page 490:

“If the surety upon making partial payment became entitled to subrogation it would operate to place him upon a footing of equality with the holders of the unpaid part of the debt, and if the property were insufficient to pay the remainder of the debt for which the guarantor was bound the loss would fall proportionately upon the creditor and upon the surety, and that, ‘such a result would be grossly inequitable.’
“Obviously it would be unjust to permit the guarantor on payment of part of a debt to appropriate to himself the security which the creditor holds for the entire debt.”

The plaintiff contends that the reason for the rule as thus stated does not exist in this case and, therefore, the rule should not be applied. Plaintiff contends that in insurance subrogation claims the debtor-creditor relationship in the law of sureties upon which the general rule is founded does not exist. Under insurance subrogation claims, the company does not attempt to levy upon the debtor third party but upon the creditor, the insured. For this reason, the company is not attempting to appropriate to itself upon partial payment the security for the entire debt. Plaintiff also contends that since the defendant here accepted a settlement of less than the policy limits in the wrongful death case, he should not now be permitted to say that there was not full recovery.

We can find no reason for not applying the general rule in this case. The trial court found that the settlement by the defendant of the wrongful death action did not constitute full recovery of the debt. Obviously, the trial court must have found that the agreement not to proceed executed by the defendant at the time of the settlement did not constitute a complete release or discharge or satisfaction of the debt. There has been no contention in this court that such a determination was against the manifest weight of the evidence or that the document which was executed as a matter of law constituted a complete release or discharge of the obligation. We must, therefore, accept the finding of the trial court that the settlement did not constitute full recovery of the debt. Applying the general rule above stated, we hold that the defendant holds no part of the amount recovered in the wrongful death action for the benefit of the plaintiff herein.

We further hold that the plaintiff is not entitled to recover because in the action which the defendant had instituted against the plaintiff seeking to recover under the provisions of the medical expense clause of the policy, Hardware Dealers not only denied liability under the policy, but denied that at the time of the accident Neely had a policy of insurance with Hardware Dealers which afforded medical expense coverage. This was the posture Hardware Dealers continued to assume until after Ross settled the wrongful death claim against Bowman. Subsequent to such settlement, Hardware Dealers changed its position and stipulated the existence of the policy and the expenses incurred by Eunice Ross. The court thereupon entered judgment against Hardware Dealers for $4,000.

The defendant Ross urges that since this is an action based on the subrogation provision of Hardware Dealers policy it should not be permitted to maintain the same because at the time recovery was made in the wrongful death action Hardware Dealers had denied liability and the existence of the policy under which it now seeks to recover. In support of this position, the defendant cites Sims v. Illinois Nat. Cas. Co. of Springfield, 43 Ill App2d 184, 193 NE2d 123, and Dinn Oil Co. v. Hanover Ins. Co., 87 Ill App2d 206, 230 NE2d 702.

Plaintiff contends that the holding in the Dinn case places an unwarranted burden on an insurer which would require the insurance company to refrain from denying liability and to pay all claims or be estopped thereafter from raising policy defenses in any subsequent suit. In the Dinn case, the court held that the insurance company having denied liability under the policy of insurance, could not invoke as a defense to a suit on the policy an alleged violation of the policy by the plaintiff under facts similar to those present in this case.

We find it unnecessary to consider the consequences of the Dinn case as conjectured by the plaintiff because we have here not only a denial of liability under a policy of insurance, as in the Dinn case, but also a denial of the existence of the policy under the terms of which the plaintiff now seeks to recover. It would appear that equity and good conscience should not permit an insurance company to deny that it had issued a policy of insurance and to maintain that position until after a situation arises which it thinks will give rise to a defense on the policy. It would further appear that the insurance company should not then be permitted to suddenly change its position, admit the existence of the policy and attempt to escape liability thereunder by raising as a defense an alleged breach of the policy, which occurred during the time that the company was taking the position that the policy was not in existence. Such conduct is quite similar to the conduct condemned in Sims v. Illinois Nat. Cas. Co. of Springfield, supra, at page 197:

“the insurer has no right to insist that the insured be bound by the provisions of the insurance contract inuring to its benefit . . . when it has already breached the contract by violating the provisions inuring to the benefit of the insured.”

Under the facts of this case, we feel that Hardware Dealers should not be permitted to recover under the subrogation provision of its policy of insurance when at the time of the recovery to which it now seeks to be subrogated, it maintained that the policy of insurance under which it now claims did not exist.

Affirmed.

STOUDER and ALLOY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ABRAHAMSON.

license: Public Domain

text:
    In the Interest of Paula Wallingford, Rhonda Wallingford, Roby Wallingford, Mary Lisa Carter, Delbert Kent Carter, and Gary Carter, Minors. Gloria Dean Carter, Appellant, v. People of the State of Illinois, Appellee.
    Gen. No. 69-219.
    Second District.
    September 25, 1970.
    William N. Stone, of Sterling, for appellant;
    Albert N. Kennedy, State’s Attorney of Lee County, of Dixon, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    Michael Mullins, a Minor, by Martha Mullins Schaefgen, His Mother and Next Friend, Plaintiff, v. Crystal Lake Park District, a Municipal Corporation, Crystal Lake Junior Chamber of Commerce (a/k/a Jaycees), a Non-Profit Corporation, and Melrose Display Fireworks,. Inc., a Corporation, Defendants-Counter-plaintiffs-Appellants, v. Thomas A. Stokes, a Minor, Defendant-Counterdefendant-Appellee.
    Gen. No. 70-2.
    Second District.
    September 25, 1970.

      Diver, Ridge, Brydges and Bollman, of Waukegan, and Kell and Conerty, of Woodstock, for appellants.
    Robert F. Casey and George E. Krippner, of Geneva, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The corporate defendants’ counterclaim seeking indemnity against Stokes, a minor defendant, was dismissed on the pleadings. Counterplaintiffs appeal, claiming that a cause of action was properly stated based upon the theory of active-passive negligence.

The complaint of Michael Mullins, a minor, alleged that the Park District owned land which it leased to the Junior Chamber of Commerce for the purpose of conducting a fireworks display; that on July 4th, 1967, the Melrose Corporation erected a fireworks display in conjunction with the Jaycees; that on that date the defendant Stokes stole some fireworks from the display; thereafter he gave one or more of the stolen fireworks to the plaintiff, Mullins; and sometime later Mullins lit one of the fireworks, it exploded, and Mullins was injured.

In substance, the negligence charged against the corporate defendants is as follows: failure to provide adequate personnel to prevent access by minors to the display area, failure to employ a safe method to maintain an accurate inventory and accounting of the fireworks, failure to have all the fireworks placed out of reach of minors, failure to adequately supervise and control the use of the premises for an extraordinarily dangerous activity, failure to secure the fireworks, and failure to make public warnings of the dangers involved.

The counterclaim alleged that Stokes, with the assistance of tools, intentionally stole fireworks from the display; that, after stealing such fireworks, he passed some on to the plaintiff without warning the plaintiff of any dangers incident thereto; that subsequently one of the fireworks exploded and that plaintiff claimed injuries therefrom. The counterclaim further alleged that if any one of the counterplaintiffs is found liable to plaintiff, such liability will be based on one or more of the allegations of negligence contained in plaintiff’s complaint, or upon such other negligence as may be proved at trial and added by amendment to the complaint, but that such negligence as may be proved is of only a passive nature, and that counterdefendant’s intentional activities in stealing the fireworks and passing them on to plaintiff without warning constitute active negligence. The counterplaintiffs claim that they are entitled to indemnity based on the active-passive negligence exception to the no contribution rule. An additional count of the counterclaim sets forth essentially the same facts except that it claims that counterdefendant was guilty of wilful and wanton misconduct.

Counterplaintiffs argue that their complaint is legally sufficient in that it shows a possibility of recovery against the alleged indemnitor Stokes, who intentionally stole the fireworks and negligently or wantonly gave them to plaintiff. They reason that since both they and Stokes are charged as joint tort-feasors with a nondelegable duty to the plaintiff, a relationship between them has been alleged giving rise to the potential qualitative distinction that counterplaintiffs’ negligence is passive, permitting them to be indemnified by Stokes, whose acts are alleged to amount to active negligence.

Stokes argues that the pleadings do not disclose any relationship upon which the duty to indemnify may be predicated, that the alleged negligence of the counter-claimants and of Stokes, though combining to injure plaintiff, were separate and distinct acts of negligence. The counterdefendant urges that, as a matter of public policy, the degree of care required of those who conduct a display of fireworks cannot be considered merely passive.

The more recent authorities in this State have recognized that although there is no contractual or quasi-contractual relationship between the parties, a cause of action may be stated when two or more parties are alleged to have been involved in causing injury to a third person, entitling the party whose conduct is merely passive or secondary in the sense of culpability to indemnity against the party whose negligence is the active or primary cause of the injury. Reynolds v. Illinois Bell Tel. Co., 51 Ill App2d 334, 336, 337, 201 NE2d 322 (1964); Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 201, 229 NE2d 769 (1967). See also Trzos v. Berman Leasing Co., 86 Ill App2d 176, 183, 229 NE2d 787 (1967).

Although the pleadings were dismissed for failure to allege any relationship or circumstances connecting the parties in Muhlbauer v. Kruzel, 39 Ill2d 226, 230, 231, 232, 234 NE2d 790 (1968), the Supreme Court recognized that the doctrine of implied indemnity exists if a potential relationship between the parties is pleaded and the liability of one party is primary and the other is secondary. Here, the counterplaintiffs do not deny any connection with Stokes. They allege that they were lessor, lessee and displayer, respectively, in connection with the fireworks display. They allege that Stokes stole the fireworks from that display and admit that the fireworks taken from the display were given to plaintiff and caused his injury. We believe that this sufficiently alleges the relationship or circumstances between the parties sufficient upon which to predicate an action for indemnity.

The cases which have been cited by defendant Stokes as authority for his argument that no cause of action has been stated against him are distinguishable. In Chicago & Illinois Midland Ry. v. Evans Const. Co., 32 Ill2d 600, 607, 208 NE2d 573 (1965); Spivack v. Hara, 69 Ill App 2d 22, 26, 216 NE2d 173 (1966); Marshall Field & Co. v. J. B. Noelle Co., 81 Ill App2d 409, 26 NE2d 454 (1967), the claim for indemnity was ruled upon after a trial in which the respective culpabilities of the parties had been established and which resulted in the conclusion that under the evidence no action for indemnity based on an active-passive or primary-secondary fault was proven. In Gillette v. Todd, 106 Ill App2d 287, 294, 245 NE2d 293 (1969), the defendant was charged with negligence arising from his alleged physical act of pushing open a door against the plaintiff. The physical act causing the injury could only be classified as active negligence as a matter of law and, therefore, precluded indemnity. Likewise, in Stewart v. Mister Softee of Illinois, Inc., 75 Ill App2d 328, 331, 221 NE2d 11 (1966), the charge of negligence against the defendant that he double-parked his vehicle and sounded chimes to entice a child into a position of danger, was active or primary in nature as a matter of law and thus precluded indemnity.

Upon trial it may be determined that the defendants-counterplaintiffs have been guilty of active negligence which would preclude indemnity. However, we cannot say, upon the basis of the pleadings before us, that there is clearly no possibility of recovery against the alleged indemnitor. When a cause of action is stated which could result in potential recovery, the complaint for indemnity should not be dismissed at the pleading stage. Miller v. DeWitt, 37 Ill2d 273, 287, 288, 226 NE2d 630 (1967); Muhlbauer v. Kruzel, supra, 39 Ill2d 226, 234 NE2d 790 at pages 231, 232; Harvan v. Arthur C. Trask Co., 47 Ill App2d 403, 408, 198 NE2d 183 (1964).

We next consider counterdefendants argument that as a matter of public policy the counterplaintiffs are not entitled to recover. Stokes reasons that since counterplaintiffs are charged with the highest degree of care in handling fireworks and that the duty is particularly directed at protecting the class of minors which includes both the plaintiff and Stokes, it would be unfair for counterplaintiffs to transfer this high obligation.

Counterdefendant has furnished us with no authorities which declare such public policy. The authorities furnished stand for the rule that reasonable care is required, commensurate with the dangerous nature of explosives, and that in particular circumstances this may call for the highest degree of care particularly toward minors. (Haas v. Herdman, 284 Ill App 103, 109, 110, 1 NE2d 568 (1936) — (dynamite); Bunyan v. American Glycerin Co., 230 Ill App 351, 357 (1923) — (nitroglycerin); Stewart v. United States, 186 F2d 627 (1951)— (grenades).) Even if it could be said that counterplaintiffs herein as a matter of law had the duty of exercising the highest degree of care, we know of no expression of public policy or law which precludes showing that the breach of duty constituted passive negligence, thus permitting indemnity from the joint tort-feasor whose negligence was active or primary in causing the injury.

The order dismissing the counterclaim is, therefore, reversed and the case remanded.

Reversed and remanded.

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

       The original record discloses that there were two other minor defendants besides Stokes alleged to have conspired with him to take the fireworks, but we have been advised in oral argument that these defendants and counterdefendants were dismissed from the case.

       We note that the opinion cited both the Reynolds and the Sargent cases without disapproval. In both of those cases, no prior relationship of any kind existed between indemnitor and indemnitee and only the circumstances of concurring acts of negligence, differing qualitatively, supported the indemnity action over.

       We have not found that the expression of the “highest degree of care” as stated in the explosive cases necessarily determines the degree of care required in handling fireworks. Public display of fireworks was held to be within general standards of negligence in Cornwell v. Bloomington Business Men's Ass'n, 163 Ill App 461, 466 (1911). Similarly, see 81 ALR2d 1207, Annotated. See also Dabrowski v. Illinois Cent. R. Co., 303 Ill App 31, 41, 24 NE2d 382 (1939).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leo A. Freehill, Defendant-Appellant.
    Gen. No. 70-3.
    Second District.
    September 25, 1970.

      George F. Nichols, of Dixon, for appellant.
    Albert N. Kennedy, State’s Attorney of Lee County, of Dixon, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from judgments of conviction and fines imposed in two overweight traffic cases arising from the same transaction which were consolidated and tried before a Magistrate without a jury. He challenges the finding that his vehicle was overweight and, additionally, the assessment of a fine both for violation of his permit (Ill Rev Stats 1967, c 95½, § 230) and for being overweight (Ill Rev Stats 1967, c 95½, § § 228,229 (a)).

On June 24th, 1969, Freehill drove his employer’s truck to Beloit, Wisconsin, to pick up a 65,000 pound paper mill roll consisting of a single piece, wood-crated, for delivery to a company in Mississippi. His employer had obtained a permit from the Illinois Division of Highways to move the freight on a 7-axle tractor-trailer with a gross weight of 106,000 pounds, length 65 feet, over the proposed route and had paid a fee of $142.61. After the machinery was loaded, the defendant took the equipment to a coin operated scale at a gasoline station in South Beloit, Illinois. There he found the weights did not meet the requirements of the permit, and took the unit back and had the machinery moved and reweighed. When he discovered that it still could not meet legal requirements, he had his employer send an 8-axle unit and the employer also applied for an amendment to the permit, which was granted to provide for 40,000 pounds on a rear triple tandem axle, paying a $5 fee. After the machinery was loaded onto the 8-axle unit, it was again weighed at the station in South Beloit and showed a gross weight of 102,300 pounds and a triple tandem axle weight of 39,250 pounds.

Defendant then proceeded to the official Illinois scale at the junction of U. S. 51 and U. S. 30 on June 25th, 1969, at approximately 7:15 p. m. The officer at the weight station stamped out the scale weight which showed a gross weight of 105,700 pounds and a triple tandem axle weight of 42,780 pounds. This weight was within the gross weight limit of the permit but exceeded the triple tandem axle weight by 2,780 pounds. The officer issued an overweight ticket and complaint, and a State Trooper issued a uniform traffic ticket and complaint for violation of permit.

The tractor-trailer was left in custody of the State Police without the load being moved, and on the following day the unit was reweighed. Although requested, the State Police would not give defendant another stamped weight ticket, but they read the weights off orally and the defendant made notes of them. The weights which were read off at this time showed a gross weight of 106,580 pounds and a triple tandem axle weight of 43,980 pounds. A new permit was secured which authorized a gross weight of 106,900 pounds and a triple tandem weight of 44,360 pounds and a new permit fee of $134.20 was paid. After obtaining this permit, the defendant’s unit was again weighed, and again a scale ticket was refused, although requested; this time the figures called off orally showed a gross weight of 107,820 pounds and a triple tandem axle weight of 44,900 pounds. Again a revised permit was issued, this time for a gross weight of 108,000 pounds and a triple tandem axle weight of 45,000 pounds for which the employer paid a fee of $8.80. Although defendant requested a reweighing at this time, the State refused to reweigh the unit and told him to proceed.

Thereafter, defendant’s unit was reweighed twice in Illinois. In each case, no weights were given to him, and he was told to proceed. He was not weighed in the State of Kentucky or the State of Tennessee, but on entering the State of Mississippi, he was weighed at the State line, and given a scale ticket showing a gross weight of 100,700 pounds and a triple tandem axle weight of 40,400 pounds.

After reaching destination and having the load removed, defendant had his tractor-trailer weighed. The tractor weighed 26,440 pounds and the trailer weighed 10,540 pounds.

The State introduced evidence in the case in chief that the scales at the official Illinois State Weigh Station had been checked for accuracy approximately one month before by the Department of Agriculture and that there was a sticker on the dial of the scales put in by the Department evidencing this check.

There was evidence that nothing was done during the time when the unit was in the custody of the State Police which would affect the weight of the triple tandem axles at the rear of the trailer. However, there was testimony that the crate in which the machinery was enclosed was not water tight and that it was raining during the period.

The Magistrate assessed a fine of $1,078 and costs. This was on the theory that the 40,000-pound permit for the rear axle was nullified by the overweight shown on the scale ticket, thereby relating the permissible weight back to the statutory limit of 32,000 pounds. The fine was computed on the basis of 10,780 pounds overweight at ten cents a pound.

Defendant first argues that the Magistrate erroneously considered the official stamped weight ticket as accurate and binding as a matter of law. We do not reach this conclusion with assurance from a reading of the record. The Magistrate did restrict cross-examination of the weigh master on the subject of subsequent weighings, but permitted the defendant to testify as to these circumstances. In his memorandum opinion, however, the Magistrate concluded that the earlier and subsequent reweighings did not “overweigh or discredit” the evidence of the weight certificate. This was a proper approach to the issue. A State of Illinois weight ticket is admissible as a public document and without further proof of accuracy merely establishes a prima facie case of guilt of operation of an overweight vehicle. People v. Fair, 61 Ill App2d 360, 365, 366, 210 NE2d 593 (1965); People v. Ziebell, 82 Ill App2d 350, 353, 227 NE2d 127 (1967).

We have considered that there was additional evidence of accuracy to support a prima facie case in the proof of a recent inspection of the scales as an official act of the Illinois Department of Agriculture. However, the uncontradicted testimony of defendant that, on the second weighing upon the same State scale there was an increase on the triple tandem axle from 42,780 to 43,980 pounds, and that on the third weighing upon the same scale, the weight was again increased to 44,900 pounds— revised permits having been issued after each weighing— cast grave doubt upon the accuracy of the scale, since this evidence was unrebutted. There is no evidence that any changes in the load were made which could account for the different figures involving the heavy, single-piece load. The mere statement that “it was raining” does not more than suggest the possibility of rain increasing the weight and does not amount to a credible explanation of the increases in weight to the extent shown. The previous unofficial weighing of the vehicle and load on the 8-axle unit in Illinois, and the official weighing in Mississippi tends to confirm the defendant’s theory that the official scales in Illinois were increasingly inaccurate upon each subsequent weighing, and casts serious doubt on the accuracy of the stamped weight ticket.

Upon the record in its entirety, a reasonable and well founded doubt of the guilt of the defendant exists and the judgment is palpably contrary to the weight of the evidence, requiring a reversal. The People v. Post, 39 Ill2d 101, 105, 233 NE2d 565 (1968). The defendant having requested a retrial, the cause will be remanded.

Upon retrial, the question whether the operator of a vehicle which weighs more than its permit allows may be fined both for the violation of his permit and for overweight as if no permit had issued, may arise. We would consider that People v. Kueper, 111 Ill App2d 42, 45, 46, 249 NE2d 335 (1969) would control these issues. We do not consider it unjust, absurd, or unreasonable to impose a larger fine on a permittee who exceeds the permit weight than on one who does not apply for a permit at all, as defendant suggests. The permittee is one who has been given a special permission or privilege to exceed the statutory limits and is not one who has made a greater effort to comply with the law as appellant suggests. Under defendant’s theory, a wilful violator could seek a permit so as to minimize the fine for a premeditated violation.

The defendant also suggests that since the statute has been changed subsequent to the offense charged against him that the amendment was intended to change the laws that formerly existed. We are not persuaded that we should apply this rule of construction inasmuch as we believe that the legislative intent, which is the primary consideration, is expressed in the Kueper case as it applies to the statutes under which this case was brought.

We, therefore, reverse and remand.

Reversed and remanded.

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


author: MR. PRESIDING JUSTICE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph G. Neidhart, Defendant-Appellant.
    Gen. No. 69-221.
    Second District.
    October 2, 1970.

      William G. Rosing, of Waukegan, for appellant.
    Jack Hoogasian, State’s Attorney of Lake County, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE

DAVIS delivered the opinion of the court.

The defendant was charged by complaint with the offense of driving while under the influence of intoxicating liquor, signed a jury waiver, was tried by the court, found guilty, fined $250, and was placed on probation for one year. He was not represented by counsel at the trial.

The issue presented here is whether the defendant, charged with a misdemeanor, and tried by the court without counsel, was deprived of his constitutional right to counsel and to trial by jury.

The defendant filed a post-trial motion wherein he asserted that he had the right to counsel during the trial; that the court did not interrogate' him as to his ability to obtain counsel; and that he did not knowingly waive his right to a jury trial. This motion was denied and the defendant appealed.

On the issue of counsel, the Supreme Court in The People v. Dupree, 42 Ill2d 249, 246 NE2d 281 (1969) at pages 256 and 257 stated:

“We require that the record show express waiver of counsel in cases involving offenses punishable by penitentiary sentence (Rule 401(b)), and we impose a duty on the court to appoint counsel at defendant’s request, except in cases punishable by fines. (Ill Rev Stats 1967, c 38, par 113-3 (a), (b).) Such an approach is consistent with the terms and spirit of Gideon v. Wainwright and with the realities of litigation and the capacity of our judicial system. To construe, as defendant contends, a constitutional mandate that defendant have counsel in all cases, irrespective of the seriousness of the offense, the punishment involved or defendant’s request for counsel, unless the record shows his express waiver, would impose burdens upon the bar and bench in no way required nor contemplated by the landmark cases protecting constitutional rights in criminal proceedings.
“It is our judgment, therefore, that since defendant Dupree was charged with the misdemeanor of battery, which could not be punishable by a penitentiary sentence, and made no request for counsel, there was no violation of his statutory or constitutional rights by failure of the record to recite that he was apprised of and expressly waived his right to counsel.”

We regard this decision as dispositive of the defendant’s contention that he had a constitutional right to counsel in the case at bar, wherein the statutory penalty was imprisonment for not less than two days nor more than one year, or by fine of not less than $100 nor more than $1,000, or by both fine and imprisonment. Ill Rev Stats 1969, c 95½, par 144 (i). The statutory alternative punishment of imprisonment or fine renders the offense of driving while under the influence of intoxicating liquor a misdemeanor. The People v. Bain, 359 Ill 455, 470, 195 NE 42 (1935); People v. Neal, 89 Ill App2d 318, 322, 231 NE2d 610 (1967). Also see: Ill Rev Stats 1969, c 38, pars 2-7 and 2-11.

Neither do we believe that the defendant did not knowingly and understandingly waive his right to a jury trial. He signed a jury waiver, and the report of proceedings filed herein, pursuant to Supreme Court Rule 323(c), indicates that the magistrate told the defendant of his right to a trial by jury; and that the defendant, on cross-examination, stated that he had previously been in court with counsel on the same charge, and that on that occasion he waived jury trial and entered a plea of guilty. The circumstances of this case cause us to believe and hold that the defendant knowingly and understandingly waived his right to a jury trial.

Accordingly, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellant, v. William J. Courtright, Defendant-Appellee.
    Gen. No. 70-67.
    Second District.
    October 7, 1970.

      Jack Hoogasian, State’s Attorney of Lake County, of Waukegan (Thomas P. Hannigan, William D. Block, and Edward L. S. Arkema, Jr., Assistant State’s Attorneys, of counsel), for appellant.
    Harry D. Hartel, Jr., of Mundelein, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, William J. Courtright, was arrested on February 18, 1969, for driving an overweight truck, and the arresting officer directed him to drive to the approved scale to have his truck weighed. Prior to the trial, the defendant filed a motion to suppress the evidence as to the weight of the truck on the ground that this evidence was obtained without prior “Miranda” warnings having been given to him. The trial court granted the motion to suppress, and the State appealed.

The defendant moved to dismiss the appeal because: the order granting the motion to suppress is not an appealable order; and he has been denied the right to a speedy trial.

The order is an appealable order. Supreme Court Rule 604(a) (1) (Ill Rev Stats 1968, c 110A, par 604(a) (1)), provides in part that: Subsection (2) of Rule 604(a) provides that a defendant shall not be held in jail or to bail pending an appeal by the State; subsection (3) provides that the time during which an appeal is pending shall not be counted as part of the 120-day period in which a defendant must be tried. (Ill Rev Stats 1969, c 110A, par 604(a) (2) (3).)

“In criminal cases the State may appeal only from an order or judgment, the substantive effect of which results in . . . suppressing evidence.”

The defendant contends that, notwithstanding the provisions of this Rule, the order is not appealable because the trial court refused to terminate the trial upon granting the motion to suppress and that this is a requisite to an appeal under section 114-12 (c) of the Code of Criminal Procedure (Ill Rev Stats 1969, c 38, par 114-12 (c)).

The language relied on by the defendant is contained in a sentence outlining the procedure to be followed if a motion to suppress is made during the trial as opposed to prior to the trial. It is obvious that the requirement for the termination of the trial is applicable to a motion to suppress made during the trial, and is inapplicable to a motion to suppress made prior to the trial, as in the case at bar. The order of the trial court is properly appealable and the motion to dismiss the appeal is without merit.

Likewise, the argument that he has been denied the right to a speedy trial by reason of this appeal is without merit. Ill Rev Stats 1969, c 110A, par 604(a) (3).

On the merit of the case, we believe that there was no valid basis for the Court’s ruling suppressing the evidence of the weight of the truck because no “Miranda” warnings were given to the defendant prior to the time that the arresting officer directed him to drive to the approved scales to have his truck weighed.

In The People v. Mulack, 40 Ill2d 429, 240 NE2d 633 (1968), the court held that the results of a breathalyzer and field visual tests were properly admitted into evidence notwithstanding that the defendant was given no “Miranda” warnings, including advice of his right to counsel; and at page 432 the court stated that “Miranda” warnings apply only to “testimonial” and not to “physical” evidence.

Among the cases cited by the Supreme Court in Mulack were: Schmerber v. California, 384 US 757, 16 L Ed2d 908, 86 S Ct 1826 (1966), which held that the results of a blood test were “real or physical evidence,” as opposed to “communications,” or “testimony,” and, thus, not within the protective scope of the fifth amendment; Gilbert v. California, 388 US 263, 18 L Ed2d 1178, 87 S Ct 1951 (1967), which held that the taking of exemplars of handwriting was not violative of the defendant’s right against self-incrimination because it was “real or physical evidence”; and United States v. Wade, 388 US 218, 18 L Ed2d 1149, 87 S Ct 1926 (1967), which held it was not a violation of the fifth amendment to compel a person to exhibit himself for observation in a lineup and to say something to test the voice since neither requirement was a compulsion of a testimonial nature.

The Mulack case further recited these United States Supreme Court cases as holding that the gathering of this type of evidence was not a part of the critical stage in the proceeding which entitled the accused to the right to counsel, and, thus, it did not constitute a violation of the sixth amendment. (The People v. Mulack, supra, 432.) In the light of these holdings, we do not believe that there was a violation of the defendant’s constitutional rights under the doctrine of “Miranda” because of the failure of the officer to advise him of his right to counsel at this stage of the proceeding. The Mulack case is determinative of the case at bar.

We agree with the State that, under the testimony, the arresting officer had reason to believe that the weight of the truck was unlawful. Under section 132.01 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1969, c 95½, par 229a), the officer, if he has reason to believe the weight of a vehicle is unlawful, may require the driver of the vehicle to drive to the nearest available approved scale to have the vehicle weighed. The investigation authorized by this enactment does not violate the constitutional protection against unlawful searches and seizures and it is valid as a necessary means of effectuating a proper statute. The People v. Munziato, 24 Ill2d 432, 436, 182 NE2d 199 (1962); The People v. Lafin, 59 Ill App2d 489, 491, 208 NE2d 105 (1965).

The order of the trial court suppressing the evidence is reversed and the cause remanded for further proceeding.

Reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Morici, Defendant-Appellant.
    Gen. No. 69-223.
    Second District.
    October 7, 1970.

      Edwin L. Douglas and Kevin P. Connelly, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

James Horici, defendant, was jointly indicted with others, for the offense of burglary, and entered a plea of guilty to the charge. The court adjudged him guilty of burglary and, upon petition, granted him probation. During the period of his probation, he was convicted of receiving stolen goods and of disorderly conduct. A petition, filed by the State for the revocation of his probation, was granted and the court then sentenced the defendant to the penitentiary for a term of from two to four years for the offense of burglary. This appeal followed.

The defendant was represented by private counsel at the hearing for revocation of probation, and is represented by the Public Defender of Du Page County on this appeal.

On July 10, 1970, the Public Defender filed a petition for leave to withdraw as appellate counsel, and pursuant to Anders v. California, 386 US 738, 18 L Ed2d 493, 87 S Ct 1396 (1967), has filed a brief in support of his petition, wherein he alleged that the appeal was wholly frivolous and without any contentions which might arguably support it. Proof of service indicates that a copy of the petition and brief was mailed to the defendant, #65936, Box 112, Joliet, Illinois, on July 3,1970.

On July 15, 1970, the court, on its own motion, caused its clerk to direct a letter to the defendant which notified him that the Public Defender had filed a petition to withdraw as his appointed attorney; that the petition contained conclusions of the Public Defender that the sentence imposed on the defendant was not excessive; and that the asserted trial errors were frivolous. This letter also notified the defendant of the Proof of Notice which was attached to the petition; and that the Court, on its own motion, had continued the matter to August 14, 1970, in order to allow him to file any additional matters which he believed to be meritorious on his behalf, or to assert any other reasons why the petition should not be allowed, or why the court, after review of the record, should not affirm the judgment of the trial court.

The defendant did not file any pleading in response to the notice of the Public Defender or the court, and sought no extension of time within which to do so. However, he did address a letter to the court, which was filed as part of the record in the case, wherein he stated that he believed that the court discriminated against him in that one of the other codefendants, who was not granted probation, upon a finding of guilty received a lesser sentence than he.

The brief and argument of the Public Defender states that only illusory issues are presented in the appeal, and that the appeal is frivolous and void of any contentions that might arguably support the appeal. It asserts that the illusory issue is that the court abused its discretion in imposing the sentence.

In view of the defendant’s conduct while on probation, we believe that the revocation of his probation was proper, and that the court did not abuse its discretion in imposing a sentence upon him of from two to four years in the penitentiary. The People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958); People v. Smice, 92 Ill App 2d 83, 86, 234 NE2d 47 (1968).

We have fully examined all of the proceedings, as required by Anders v. California, supra, and conclude that the appeal lacks merit, and if pursued further, would be frivolous. The Public Defender is, therefore, given leave to withdraw as the defendant’s counsel and the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Stringer and Richard Taylor, Defendants-Appellants.
    Gen. Nos. 52,944, 52,945. (Consolidated.)
    First District, Second Division.
    February 24, 1970.
    Rehearing denied November 5, 1970.

      Howard T. Savage, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendants were found guilty by a jury of the crimes of murder and robbery; each was sentenced to a term of fifty years to one hundred years in the penitentiary. They appeal.

Shortly after 5:00 on the morning of July 16, 1966, Henry Dority, the operator of a newspaper stand located at the comer of 53rd Street and Indiana Avenue in Chicago, was robbed and shot to death near the newsstand by two men who fled the scene. Several months later two persons who allegedly witnessed the incident identified the defendants as the perpetrators of the crimes by means of police photographs.

On November 14, 1966, the defendants, who were in custody at the Cook County Jail awaiting trial on indictments unrelated to the instant case, were transported to the Cook County State’s Attorney’s Office in the Criminal Courts Building where they were shown in a lineup, again identified as the offenders, and subsequently indicted for the crimes. After the lineup had been concluded and in response to a comment made by one of the police officers assigned to the defendants, Stringer allegedly admitted shooting Bority; Stringer then allegedly asked Taylor how much money they got in the robbery, but Taylor stood mute.

Pretrial motions were filed by the defendants, consisting of a motion to suppress the oral statement allegedly made by Stringer, a motion for a severance of the trials, and a motion to suppress the identification testimony of the witnesses who identified the defendants at the November 14th lineup. After hearings, the trial court ruled inadmissible the portion of Stringer’s statement relating to Taylor and denied all motions.

At the hearing on the motion to suppress the Stringer statement, Police Officer John Fitzgerald testified that the defendants were brought to the Criminal Courts Building for the purpose of being shown in a lineup in connection with the robbery and murder of Bority. He testified that the defendants were fully advised of their constitutional rights when they were placed in his and his partner’s custody, but that the defendants responded only by shouting and demanding that they not be shown in a lineup but that they be returned to County Jail.

After the lineup had been concluded, in which the two defendants and four other men were shown, Officer Fitzgerald and his partner, Officer Joseph Marin, returned to the room where the defendants were being held and informed them that they had been identified in connection with the murder and robbery. Officer Fitzgerald testified that Stringer thereupon shouted, “Okay, okay, I killed him, let’s get it over with.” The officer stated that he then inquired of Stringer as to the type of weapon which was used and that Stringer told him it was a .32 automatic pistol which he thereafter left with a friend. After Stringer declined to divulge the friend’s name, the officer testified, he asked Stringer how much money was taken in the robbery. Stringer thereupon turned to Taylor and asked, “How much did we get?” but Taylor did not answer. Stringer stated that he was willing to give a written statement concerning the incident, but refused to do so when assistant state’s attorney Thomas Hett was later brought into the room.

Officer Fitzgerald further testified that, prior to showing the defendants in the lineup, he was aware indictments were pending against both defendants for other crimes and that he at no time made an attempt to contact the defendants’ attorney who was of record in those matters. He also stated that he did not seek permission from the defendants, their attorney of record in those other matters, or any court to have the defendants brought from the County Jail to the Criminal Courts Building.

Officer Marin substantially corroborated the testimony given by Officer Fitzgerald and likewise testified that the defendants were advised of their constitutional rights prior to being shown in the lineup and also that Stringer made the statement related by Officer Fitzgerald.

Defendant Stringer testified at the hearing on the motion to suppress the statement that he had been arrested and indicted in September 1966 on robbery charges and was represented by counsel with respect thereto. He testified that on November 14, 1966, he was taken from the County Jail, under the pretext that he was being released on bond, and was transported, with defendant Taylor, to the Criminal Courts Building. He further testified that Officer Fitzgerald told him that he and Taylor were to be placed in a lineup to determine if they could be identified in connection with a murder. He stated that he demanded to see his attorney, but was refused, and that he was given no constitutional warnings prior to appearing in the lineup.

Stringer also testified that immediately prior to appearing in the lineup, he and Taylor were seated in a small room and he noticed two persons peer into the room from the outside; he stated that he later saw the same two persons viewing the lineup. (The two persons referred to by Stringer were Perry Smith, a People’s witness at trial, and Carl Dunbar, a defense witness at trial.) Stringer testified that at the conclusion of the lineup, he and Taylor remained in the room with Officer Fitzgerald and several bailiffs, and Officer Fitzgerald informed the defendants that they had been identified in connection with the Dority murder.

Assistant state’s attorney Thomas Hett testified that he had been summoned to the room where the defendants were being held and that he asked them if they wished to make a statement; Stringer refused. He further stated that neither defendant complained to him at that time that he had been threatened or intimidated ; they wished only to be taken back to County Jail. He also testified that he did not recall either defendant state that he had been denied his rights.

At the hearing to suppress the identification testimony of the witnesses, assistant state’s attorney Louis Garippo testified that he authorized the removal of the defendants from County Jail to the Criminal Courts Building to have them appear in the lineup. He stated that he did not seek the permission of the defendants, an attorney or a court to effect that removal.

Defendant Stringer testified and again related that he and Taylor were removed from the County Jail to the Criminal Courts Building. Prior to appearing in the lineup when he and Taylor were seated in a small room handcuffed to chairs, he noticed Smith and Dunbar peer into the room at him and Taylor; he saw both men later viewing the lineup.

Stringer testified that he and Taylor were placed in the lineup with four other men. He testified that the heights of the four other men ranged from five feet, seven inches to five feet, eleven inches, and that their clothing was dirty and in disarray, whereas he and Taylor were taller and were more neatly dressed. Stringer also stated that he was asked his name during the lineup, but refused to give it. He testified that he wore eyeglasses during the lineup, that he was not certain whether Taylor wore eyeglasses, and that the four other men were not wearing eyeglasses.

Perry Smith testified that he viewed the November 14th lineup at the Criminal Courts Building, at which time he identified the defendants as the persons he observed shoot Dority. He testified that there were six men in the lineup, whose heights ranged from about five feet, four inches to five feet, nine inches. He stated that prior to viewing the lineup he had identified both defendants from photographs shown to him by the police, and again saw the photographs later at police headquarters.

Smith denied having told anyone that he had seen the two defendants in the small room in the Criminal Courts Building prior to the lineup. He further denied telling anyone of having identified Taylor’s photograph at police headquarters, rather than at the same time as he identified Stringer’s.

An assistant state’s attorney, John McGarry, testified that he had been an assistant public defender and was assigned to represent the defendants in this case. He stated that in the course of his investigation of the matter, he had occasion to speak with Smith at his home. The witness identified a statement which he said he took from Smith, which was reduced to writing by himself, and corrected and signed by Smith. He related that Smith told him that he saw the two defendants seated in a small room in the Criminal Courts Building immediately prior to viewing the lineup. McGarry also testified that he was told by Smith that Smith did not identify Taylor’s photograph until he was at police headquarters.

Carl Dunbar testified that he also attended the November 14th lineup. He testified that prior to that time he had viewed approximately ten photographs shown to him by police and that he picked out a picture of Taylor, but was unable to identify Stringer from the photographs. Dunbar testified that immediately prior to viewing the lineup, he and Smith observed the backs of the defendants who were seated in a small room, at which time the police informed him and Smith who the defendants were. He further testified that he observed both defendants in the lineup, and that he identified Taylor as resembling one of the men he saw fleeing the murder scene. He further stated that most of the men in the lineup were short and that most of them had “civilian type” haircuts, whereas the defendants were six feet tall and had “military type” haircuts.

At trial, Chicago Police Officer Michele Boynes testified that shortly after 5:00 a. m. on July 16, 1966, he received a radio communication to investigate a shooting at 53rd Street and Indiana Avenue. When he arrived at the scene, he discovered Dority’s body lying on 53rd Street, about fifty feet west of Indiana Avenue. He testified that he had conversations with several persons in the area, none of whom were Smith or Dunbar, but he was unable to recall any description given of the assailants, other than one of the men wore dark pants and both men were about five feet, eight inches tall.

Perry Smith testified for the People and stated that he had performed catering work in a north suburb of Chicago until approximately 2:00 a. m. on July 16th, after which he was driven to the south side of the city in a friend’s automobile. Smith testified that he resided in the 5200 block of South Michigan Avenue and was dropped off by his friend near the Chicago Transit Authority elevated train station at 51st Street around 5:00 a. m. The witness testified that he proceeded on foot along 51st Street to Indiana Avenue where he turned south and walked along Indiana to 53rd Street.

Smith testified that the deceased operated a newspaper stand on the corner of 53rd and Indiana, and as he approached the corner he heard an argument in progress and heard Dority, whose voice he knew, shouting, “Holdup, holdup, holdup, they are robbing me, they are robbing me.” Smith testified that he stopped and observed the scene, and then saw Dority chasing the two defendants along 53rd Street toward Michigan Avenue. Smith further testified that after the three men had run a short distance, he observed Taylor turn and fire a shot at Dority, after which Dority fell to the street. Smith stated that he then left the scene in order to keep out of the line of fire.

Smith gave a detailed description of the wearing apparel of the defendants on the morning of the incident. He further testified that he recalled seeing Stringer in the area of 47th Street prior to the shooting, but later testified that it was Taylor whom he remembered from the area and pointed Taylor out from the two defendants. Smith also testified that he identified both defendants from photographs and identified them thereafter in a lineup. Concerning the lineup, Smith related that the defendants were neatly dressed, whereas the other four men were dirty, looked like “whiskey heads or something,” and were also shorter than, and wore their hair different from the defendants.

Officer Fitzgerald testified that he presented the defendants in a lineup on November 14, 1966. He stated that after the lineup had been concluded he informed the defendants that they had been identified in connection with the Dority murder, in response to which Stringer stated, “Okay, okay, I killed him. Let’s get it over with.” The officer also testified that Stringer at that time further related that he used a .32 automatic pistol in the slaying.

Officer Marin’s testimony was substantially the same as Officer Fitzgerald’s. In addition, Officer Marin testified that neither Smith nor Dunbar were taken past the room where the defendants were being held immediately prior to the lineup.

Defendants raised the defense of alibi. The mothers of the defendants each testified that her son was home in bed at the time of the murder.

Carl Dunbar was called as a witness for the defense. He testified that he and two other men were fixing a tire on his automobile in the alley between Indiana and Michigan Avenues, a short distance from 53rd Street, when he heard a gunshot and observed two men run past the mouth of the alley, one of them stating, “Come on, come on, I got it.” He testified that one of the two men whom he was with in the alley later described a suspect to the police and identified him when the police returned with the suspect thereafter; the suspect was later released.

Dunbar further testified that he had previously identified Taylor from police photographs as resembling one of the men he observed run past the alley, and that he also told the police that Stringer “was possibly” the other man. Dunbar stated that at the time of trial, he did not know whether the defendants were the two men he observed run past the alley on the morning in question.

John McGarry testified at the trial and related the same account concerning the statement which he had taken from Perry Smith as he did at the hearing on the motion to suppress the identification testimony of the witnesses. He further stated that Smith, at all times, maintained that he was able to identify the defendants as the men he observed shoot Dority.

Defendants first contend that the identification testimony is so weak, unsatisfactory and vague that it did not establish them as the persons who committed the offenses charged in the indictment.

The testimony of a single witness, where positive and the witness credible, is sufficient to sustain a conviction, although that testimony may be contradicted. People v. Cox, 22 Ill2d 534, 177 NE2d 211. The adequacy of an identification raises a question of credibility for determination by the trier of fact. People v. Jackson, 28 Ill2d 566,192 NE2d 873.

The testimony of Perry Smith was that his attention was drawn to the deceased’s newspaper stand by the shouts of the deceased that he was being robbed. The witness stated that he stood for several minutes observing the scene and that he then observed the deceased chase two men westerly along 53rd Street. After a short chase, one of the men turned and shot the deceased.

Smith later identified the defendants as the two men whom he saw with the deceased at the time of the shooting, and specifically identified Taylor as the man who fired the shot. At the trial, Smith gave a detailed description of the wearing apparel of the defendants on the morning in question. He further testified that his initial description of the defendants stemmed from police photographs and that he later identified the defendants at the November 14th lineup. Smith again identified the defendants at trial, and his identification was unshaken on cross-examination.

While it is true that Smith did not report his observations to the police until some time after the incident, he testified that he did not do so for the reason that he “feared for my life to identify the defendants in that neighborhood.” This was a matter of credibility for the jury, especially in light of Smith’s testimony that he had seen one of the defendants in the neighborhood prior to the incident.

Defendants’ attack on the credibility of Perry Smith is unavailing. They first argue that he did not have the requisite time or opportunity to definitely fix the features or characteristics of the two assailants, and therefore, the fact that he was a stranger to the defendants casts grave doubt upon his identification testimony. (See People v. Gold, 361 Ill 23, 196 NE 729.) It was for the jury to determine from the evidence whether Smith had such time and opportunity as to definitely fix the identity of the assailants.

Another matter for resolution by the jury was the fact that Smith named Stringer as one of the two defendants he had seen in the neighborhood prior to the incident, but when later pressed on cross-examination concerning the matter he physically pointed to Taylor as the one he had seen before, calling him “the biggest man” of the two defendants.

Defendants also contend that Smith, on direct examination, “clearly left the impression” that he had alighted from the elevated train at 51st Street prior to the incident, whereas, on cross-examination, he stated that he alighted from an automobile near the 51st Street station. A reading of Smith’s testimony in this regard does not “clearly” leave such impression; nevertheless, this was a matter for the jury to determine.

John McGarry testified that he was told by Smith that Smith had observed the defendants in the small room in the Criminal Courts Building immediately prior to viewing them in the lineup on November 14th, and further that Smith told him that he first identified Taylor from police photographs at the police station; Smith testified to the contrary. It should be noted that while defense witness Dunbar testified that he and Smith did observe the defendants in the small room prior to the lineup, he stated that he saw their backs and not their faces. Further, McGarry testified that Smith at all times maintained that he was able to identify the defendants as the two men who committed the offenses charged in the indictment. This was also a matter for the jury.

Finally, the testimony of Carl Dunbar on direct examination, that he was not certain whether the defendants were the same two men whom he observed run past the alley, in no way weakens the identification testimony given by Smith. Dunbar was called as a defense witness, and not as a witness for the People. Further, on cross-examination, Dunbar admitted that he previously told the police that Taylor was one of the men who ran past the alley and that Stringer was possibly the other man.

The cases cited by the defendants on the question of the credibility of identification testimony are inapposite on their facts from the instant case. See People v. Gold, 361 Ill 23, 196 NE 729; People v. Fiorita, 339 Ill 78, 170 NE 690; People v. Kidd, 410 Ill 271, 102 NE2d 441.

Defendants next contend that they were denied due process of law inasmuch as their confrontation with Smith and Dunbar prior to the trial was unlawful, unfair and unnecessarily suggestive.

They first argue that the trial court erroneously denied their motion to suppress the identification testimony of Smith and Dunbar for the reason that the defendants were removed from the County Jail to the Criminal Courts Building for the purpose of being shown in a lineup without a court order, or without their permission or the permission of or notice to their counsel in the unrelated pending cases.

Defendants were shown in the lineup prior to the return of the indictment on the instant charges. The fact that they were represented by counsel in the unrelated matters did not, without more, give them the right to have him notified of the November 14th lineup which was held prior to the effective date of United States v. Wade, 388 US 218, and Gilbert v. California, 388 US 263. (See Stovall v. Denno, 388 US 293, which limits the applicability of those decisions to the date thereof, June 12, 1967. See also People v. Nelson, 40 Ill2d 146, 238 NE2d 378.)

It cannot be said that the defendants were denied due process of law by the mere fact that they were taken from County Jail to the Criminal Courts Building without their or their counsel’s permission, or without an order of court. Defendants were properly in custody awaiting trial on other charges and they were not discriminated against by being in custody due to the fact that they were unable to make bail. Rigney v. Hendrick, 355 F2d 710. There is no real difference between the situation at bar and one where the police take a suspect into custody off the street after he has been identified through police photographs.

Defendants contend that the requirements of Stovall v. Denno, 388 US 293, were not complied with in the conduct of the lineup; they argue that the confrontation between the defendants and the witnesses was so unnecessarily suggestive and conducive to irreparable mistaken identification that they were denied due process of law. They state that there were six men in the lineup, including the defendants, and that the other four men were “considerably shorter” than the defendants. They further state that the other four men were also unclean and disheveled looking and wore “civilian type” haircuts, whereas the defendants were clean and neat in appearance and wore their hair in a “military cut.” Further, they argue, both Smith and Dunbar observed the defendants in the small room immediately prior to the lineup.

It was held in the Stovall case that the “totality of the circumstances” surrounding a pretrial confrontation between a witness and an accused will govern the admissibility of an in-court identification by that witness. Where an accused does not present such evidence as is sufficient to establish the unfairness of the pretrial confrontation, the in-court identification may be admitted into evidence where it is shown by clear and convincing evidence that it had an independent origin, arising from the witness’ uninfluenced observation of the accused. People v. Nelson, 40 Ill2d 146, 238 NE2d 378.

The record shows that on the morning of the incident, Perry Smith observed Dority’s assailants for several minutes under lighting conditions which enabled Smith to give a detailed description of the wearing apparel of the assailants. The record further shows that Smith had seen one of the defendants in the neighborhood on an occasion prior to the incident. The record shows that, prior to viewing the lineup, Smith had identified both defendants from police photographs. Finally, the record does not reveal a single instance where Smith failed to identify the defendants as the assailants, or where that identification was in any way shaken.

Smith testified that he did not see the defendants in the small room prior to viewing the lineup, whereas McGarry testified that he was told by Smith that Smith had seen the defendants in the room. Carl Dunbar also testified that he and Smith saw the defendants in the small room prior to the lineup, but stated they only saw the backs of the defendants. Nevertheless, the question of whether or not the conditions during and immediately prior to the lineup were suggestive is obviated by the independent prelineup identification of the defendants from the photographs and by the circumstances surrounding Smith’s observation of the incident and the assailants. People v. Nelson, 40 Ill2d 146, 238 NE2d 378. The ability of a witness to identify a suspect cannot be said to have been erased from his mind merely because he improperly saw the suspect prior to a lineup. People v. Cook, 113 Ill App2d 231, 252 NE 2d 29.

Defendants next contend that they were not proven guilty beyond a reasonable doubt. As to the murder charge, the testimony of Perry Smith as to what he observed at and near the Dority newspaper stand, as well as his identification of the defendants as the assailants, was not shaken on cross-examination. The testimony of a single witness, where positive and the witness credible, is sufficient to sustain a conviction. People v. Robbins, 88 Ill App2d 447, 232 NE2d 302. Further to be considered against Stringer is the testimony of the police officers to the effect that Stringer admitted killing Dority, after appearing in the lineup.

As to the robbery conviction, the evidence for the People shows that Perry Smith, walking along Indiana Avenue toward 53rd Street, heard Dority shouting, “Holdup, holdup, holdup, they are robbing me, they are robbing me.” He stopped and later observed Dority chase the two defendants westerly along 53rd Street. During the defendants’ case, Carl Dunbar testified that he was in the alley between Michigan and Indiana Avenues, a short distance from 53rd Street, when he heard what sounded like a gunshot and then observed two men run past the alley, one of them stating, “Come on, come on, I got it.” Finally, the deceased’s widow testified that her husband had $40 in his pocket when he left home for work some seventy minutes before the incident, and Officer Boynes testified that the deceased had no money on his body when it was removed to the morgue. There was sufficient circumstantial evidence from which the jury could find the defendants guilty of robbery.

Defendant Taylor maintains that the trial court erred in denying his motion for a separate trial inasmuch as the statement made by Stringer after the lineup was not joined in by Taylor and therefore prejudiced him at the trial.

While the comments made by Stringer after the lineup, in their entirety, did implicate Taylor, the portion of those comments heard by the jury related only to Stringer, the balance relating to Taylor having been stricken by the trial judge at the close of the hearing on the motion to suppress the statement. All reference to Taylor, either direct or by implication, having been stricken from the statement, the trial judge did not abuse his discretion in refusing to grant a severance. Taylor further states that there was no instruction given to the jury that Stringer’s statement should be considered as to Stringer alone, but it does not appear that any such instruction was requested by him. (See IPI — Criminal, c 3.08.)

Defendants next contend that the statement of Stringer was improperly admitted into evidence for the following reasons: it was obtained while Stringer was in the unlawful custody of the police; it was obtained without the presence of counsel; and it was taken without Stringer having been advised of his constitutional rights.

It should be first noted that while the defendants were under indictment at the time they were shown in the lineup, the indictments in no way related to the crimes charged here. Defendants were not yet indicted for the crimes charged here, and although represented by counsel in those cases, they were not represented by counsel relative to the instant matter. (See People v. Lagardo, 39 Ill2d 614, 237 NE2d 484.) The question of defendants’ “unlawful detention” by the police after having been taken from County Jail to the Criminal Courts Building has been dealt with above.

In connection with defendants’ contention that Stringer’s statement was taken without his having been advised of his constitutional rights, that was a matter of credibility for the trial court at the hearing on the motion to suppress the statement. Officers Marin and Fitzgerald testified that the defendants did receive the required constitutional warnings prior to being shown in the lineup, which Stringer denied in his testimony. It has long been held that a determination as to credibility reached by the trier of fact will not be overturned in the absence of manifest error.

Stringer however contends that the question of credibility is not important; he argues that he was the victim of “psychological coercion” during the “unlawful detention,” thereby rendering the statement inadmissible. (See McNabb v. United States, 318 US 332; Mallory v. United States, 354 US 449; Miranda v. Arizona, 384 US 436.) Not only did Stringer make the statement after the lineup had been concluded, but there was a conflict in the evidence as to what transpired in the small room where the defendants were being held, both before and after the lineup. Under the People’s evidence adduced at the hearing on the motion to suppress the statement, the trial judge could reasonably have found that the defendants were not in fact subject to the “psychological coercion” which Stringer suggests. The situation presented here consequently does not, ipso facto, call for the application of the cases cited by defendants in this regard.

Defendants finally contend that the trial court improperly refused to give to the jury Defendants’ Instruction #13, which they argue stated their theory of the case, namely, that they had not been sufficiently identified as the persons who committed the offenses charged in the indictment.

It is clear from a reading of the instruction that its primary thrust does not relate to a statement of the defendants' theory of the case, but rather relates to the credibility of the identification witnesses. The instruction states that the jury, in determining whether or not a defendant has been identified as the perpetrator of the offense charged in the indictment, must consider all the testimony in the case. The instruction then goes on to enumerate what elements “must” be considered in determining whether there was satisfactory evidence adduced which identified the defendant as the offender.

We are in agreement with defendants’ contention that they have a right to have an instruction given to the jury properly presenting their theory of the case (People v. Provo, 409 Ill 63, 97 NE2d 802) but Defendants’ Instruction #13 did not properly present such theory. Further, there is nothing in the record to show that a properly drawn instruction of that nature was tendered by the defendants after Instruction #13 was refused.

There were other instructions given on behalf of the defendants relating to the credibility of witnesses, and the trial court did not err in refusing Instruction #13 since the court was not bound to give an instruction which is repetitious of other instructions. People v. Dilworth, 67 Ill App2d 384, 214 NE2d 9.

The case of Salley v. United States, 353 F2d 897, cited by the defendants, is not in point. The trial court in the Salley case refused to give an instruction which specifically related to the degree of proof necessary in order to identify the defendant as the perpetrator of the offense charged in the indictment. The reviewing court reversed, stating that the defendant had a right to have the jury instructed as to his theory of the case, that he was not identified as the offender. The instruction in the Salley case related to the degree of proof of the accused’s identity as an element of the case, whereas here, the instruction relates to what factors the jury was to consider in weighing the identification testimony and in determining the credibility of the identification witnesses. Another distinguishing fact in the Salley case is that it involved a narcotics transaction involving a police undercover agent; the reviewing court went into detail concerning the necessity of and the dangers attendant to the employment of the police undercover agents in the infiltration of the narcotics world and the confusion as to the identification of suspects which may arise due to a single agent’s involvement in numerous cases at one time, involving many different persons. No such situation is presented here.

For these reasons the judgments are affirmed.

Judgments affirmed.

McCORMICK, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ralph R. Ruderson, Defendant-Appellant.
    Gen. No. 53,460.
    First District, First Division.
    February 26, 1970.
    Rehearing denied December 3, 1970.

      Washington, Kennon, Bryant & Hunter, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kdssane and Robert B. McGee, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Ralph R. Ruderson pleaded not guilty to the offenses of rape and robbery. After a jury trial, he was found guilty as charged and sentenced to ten to fifteen years in the penitentiary.

The defendant contends, on appeal, that there was insufficient evidence of identification and that his alibi showed him to be at a different location at the time of the attack on the prosecutrix. He argues that he was therefore not proven guilty beyond a reasonable doubt.

The complainant, Susan Beth Madura, was a single person who resided at 7801 South Hermitage with her parents. She attended Mundelein College and on August 2, 1967, was employed at Wesley Memorial Hospital as a diet clerk during summer vacation. About 6:12 a. m. on that date, she was walking east on 78th Street toward Ashland Avenue to get a bus. She observed a man walking toward her on the same side of the street. She described him as a light-skinned negro, twenty to twenty-five years old, about five feet eleven and wearing a white shirt and dark pants. She testified that she recalled these features because she observed him the whole time he was walking toward her since it was rare for her to see anyone on the street at that time of the morning. The man whom she identified in court as the defendant, grabbed her about the mouth with his left hand and around the neck with his other hand. He forced her into an areaway entrance to a basement of an apartment building and demanded her money, watch and ring, which she gave him. She had noticed the bottom band of a silver ring on the little finger of his left hand as he put his hand across her mouth. When he reached for her watch, she again noticed the ring which had a green stone set in it. The assailant forced her to remove her undergarments, then stuffed her underpants into her mouth, tied her slip around her eyes and mouth and tied her hands behind her back with her girdle. He then raped her twice, first from the rear and then with her on her back. She heard the lid of a garbage can fall, and her assailant then fled. She screamed that she had been attacked, and a couple took her into their apartment. They called the police who arrived within four minutes. Upon their arrival, she described her assailant, as aforementioned.

Miss Madura was then taken to Billings Hospital. While awaiting emergency treatment, the police officers brought in a man and she said she told them, “that was the man.” She testified that before the defendant got close to her she recognized his walk, his general appearance and his build. As he came closer, she said she recognized his face, his ring and his voice. She also said that he was wearing the same white shirt and dark pants which he had on when he attacked her. She testified that she described the pants as dark pants to the police because they were darker than the white shirt. Miss Madura identified pictures of bruises which she sustained in the attack. She also identified the man’s ring in evidence as the one the defendant wore when he raped her and when she saw him at the hospital.

Peter Papason testified that he heard a scream about 6:25 a. m. on August 2, 1967, and found the prosecutrix very disheveled and dirty with her hands tied behind her back. He called the police and they arrived within five minutes. His wife, Mary Papason, helped the prosecutrix clean herself.

Officer Alphonso Howard testified that he received a radio call about 6:27 a. m. concerning the incident and arrived at the Papason apartment about 6:30 a. m. The police sergeant who was already there, gave him the description of the assailant which he put on the police radio about 6:32 a. m. He then took the girl to Billings Hospital.

Officer James Shaver testified that between 6:00 a. m. and 6:30 a. m. he issued a ticket at 745 West 78th Street to a red truck parked in a residential area. With him was his partner, Officer Kush. This was about eight regular blocks from the Papason apartment. It took Officer Shaver approximately three to five minutes to write the ticket and put it on the windshield. He testified that he didn’t see anyone else on the street as he was ticketing the car. The time marked on the ticket was 6:20 a. m. Officer Shaver explained that this was only an estimate and meant that he wrote the ticket after 6:00 a. m. and probably before 6:30 a. m. As he returned to the car after writing the ticket, a radio call informed him that a woman was calling for help at 1617 West 78th Street. As the officers proceeded to the scene, Officer Shaver observed three male negroes between Aberdeen, 1100 West and May, 1134 West 78th Street. Officer Shaver stated that this was about six short blocks from the scene of the crime. After ascertaining that they were not fighting, the officers proceeded toward the scene of the crime. Before they reached their destination, they received another radio call, about 6:35 or 6:40 a. m., describing the girl’s attacker as being a lightly complected negro, wearing a white shirt with dark pants, and his age and size. Officer Shaver said that this description was similar to one of the three individuals he had just seen, and he turned back to try to find him, but was unsuccessful. At the police station, about 8:00 a. m., he was informed that the defendant who was in custody had said that he saw Officer Shaver writing a ticket on a red truck at 78th and Halsted. Officer Shaver identified the defendant as one of the three men he saw on Ms way to the Papason apartment.

Officer David Davidson testified that he was northbound on Ashland Avenue about ten blocks from the scene when he received the first radio call. As he arrived at the Papason apartment building about 6:30 a. m., he received the description of the assailant on the radio. Between 6:30 and 6:40 a. m., while searching for the attacker, he stopped the defendant at 77th and May. Officer Davidson testified that he stopped the defendant who was wearing a white shirt and darker colored pants, because he fit the general description of the girl’s assailant. At first, the defendant told Officer Davidson that he was coming from work, but later said that he was unemployed and was coming from his girl friend’s house and a restaurant at 79th and Vincennes. He had no identification on his person. Officer Davidson immediately took the defendant to Billings Hospital and asked Miss Madura if she could identify him. While he was about ten or fifteen feet from her, she said that she was not sure if this was the man. As the defendant walked toward her, he played with a ring on the little finger of his left hand. The victim said, “that ring.” When she said this, the defendant said something, and she then said, “the voice, the body, that’s him.” Officer Davidson at no time heard her say that this was not the man.

Detective William Boreczky testified that he interviewed Miss Madura at the Papason apartment. When he saw the defendant at the police station, he was wearing a white short sleeve shirt and pale blue pants. The defendant told the detective that he was five feet eleven and weighed one hundred sixty-five pounds. Miss Madura identified him again at the police station, but never saw him in a lineup. It was stipulated by the parties that if Doctor Rice testified he would state that his examination of Miss Madura showed her to have marks and bruises about her person and evidence of fresh bleeding from the posterior hymenal region of her vagina.

The defendant, Ralph R. Ruderson, denied ever seeing Miss Madura or attacking her. He testified that he was twenty-eight years old and lived with his mother at 7603 South May Street, which is about 1200 west. He said that when he left home at 9:00 p. m. on August 1, 1967, he was wearing a white nylon shirt, pale blue pants and high top orange-yellow work boots. This was corroborated by his mother who also said that when she saw him at the police station the next day, his clothes were clean. After frequenting several taverns, the defendant went to the Paradise Restaurant at 402 W. 79th Place about 3:00 a. m. on August 2nd, and remained there until 6:00 a. m. Pearline Byers, a waitress at this restaurant, testified that the defendant was in the restaurant during that time. The defendant said that after leaving the restaurant he walked to 79 th and Normal to meet his foreman who he thought would pick him up to go to a landscaping job. This was at 6:05 a. m. When his foreman didn’t come, he decided to walk home because he had no carfare. He said he stopped to talk to Mrs. Madeline Barrow at 7733 South Fielding, about 6:05 a. m., and stayed there about fifteen or twenty minutes, which was corroborated by the testimony of Mrs. Barrow. The defendant then walked west on 78th Street. He said that when he was near Halsted Street, he saw a negro police officer across the street writing a ticket for a red panel truck. He continued on across Halsted, and when he got east of Morgan on 78th, he saw two men walking along the street. He gestured to them and then saw a police car drive by them. When the defendant got near his home, after walking about fifteen or twenty short blocks, he was stopped by a police officer. The officer took him to Billings Hospital to be shown to the complainant. The defendant said that when he got within five or ten feet of her she was asked if she could identify him and she said, “no, this is not the man.” He said that he was nervous and was playing with his ring, and the girl said, “that ring.” He said he asked her what about the ring, and she said, “that voice, that voice,” and then, “that’s him.” At the police station he told the arresting officer that he had seen a negro police officer writing a ticket on a red truck at 78th and Halsted about the time he was charged with having committed the rape.

The defendant contends that the identification by the prosecutrix was insufficient to establish him as her assailant. He argues that she admits she had never seen her assailant before and that she had only a short opportunity to observe him. It is contended that the description she gave the police was a very general one which did not match the defendant in several respects.

We think the identification of the defendant by the prosecutrix was clear and convincing enough to support his conviction. She first observed the defendant walking toward her on the same side of the street on a sunny morning. She watched him for the time it took her to walk half a block. Miss Madura said that she paid particular attention to the defendant because it was rare for her to see another person on the street at that time of the morning. During the attack she saw his ring and when her slip came loose over her face she saw his face again. When the defendant was shown to her at the hospital within an hour after the rape, the victim recognized “his walk,” “his general appearance,” “his build,” “his face,” “his voice” and defendant’s ring. Her identification was unhurried, but positive. Only the defendant testified that she ever said he was not the man. The description she gave the police was complete enough to cause Officer Shaver, after he heard it, to return to look for the defendant whom he had seen with two other men and to cause Officer Davidson to stop the defendant and take him to see the victim. Precise accuracy in describing facial characteristics is unnecessary where an identification is positive. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694, 696. We find the identification in this case to be positive and unshaken and therefore sufficient to sustain defendant’s conviction. The defendant argues that the evidence showed him to be in a different location at the time of the occurrence. This argument was made to the jury and to the trial judge on defendant’s motion for a directed verdict and in post-trial motions and they rejected it. It must be remembered that the times involved were approximate and the area in question relatively small. The assailant ran from the scene, and we cannot say how fast the defendant could have run from one place to another. This was for the jury. It should also be noted that Officer Shaver said that he did not see the defendant while he was writing the ticket even though the defendant claimed to have walked by on the other side of the street at that time. The jury was not required to believe the testimony concerning the defendant’s alibi. People v. Harrison, 25 Ill2d 407, 411, 185 NE2d 244, 246.

Much reliance is placed on People v. Gardner, 35 Ill 2d 564, 221 NE2d 232, which the defendant argues is strikingly similar to the alibi testimony in the case at bar. We disagree. In Gardner the description of the assailant given to the police immediately after the crime, differed in significant respects from the victim’s testimony at the trial and from the defendant’s appearance at the time of his arrest shortly after the occurrence. In the case at bar the description given to the police by the victim was the same as that to which she testified at the trial. In Gardner the identification was considered weak while in the instant case the identification is positive, credible, certain and unshaken. The victim in Gardner identified the defendant mainly by his clothing while in this case the victim recognized his face, his walk, his voice, his build and his ring. Based on the entire record, we are convinced that the defendant was proven guilty beyond a reasonable doubt.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.