author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Mattingly, Defendant-Appellant.
    Gen. No. 52,379.
    First District, Fourth Division.
    February 14, 1969.
    Marshall Patner, Alfred R. Lipton, and Leslie R. Seeligson, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, John Mattingly, was charged with the theft of $80 in violation of Ill Rev Stats 1965, c 38, § 16-1. After a trial by jury, defendant was convicted and sentenced by the judge to two years’ probation conditioned on his serving the first 90 days in the House of Correction and his payment of $125 to the complaining witness. Defendant appeals, contending that the State failed to prove that a crime was committed; that he was not brought to trial within 120 days after demand and so was entitled to discharge; that he was denied his constitutional right to counsel; that the prejudicial remarks of the assistant State’s Attorney in closing argument denied him a fair and impartial trial; and that the trial judge committed prejudicial error in refusing to provide defendant with a copy of the complaint at the time of trial.

On March 13,1967, the day of trial, defendant appeared without counsel. An assistant Public Defender was appointed by the Court to represent the defendant and asked on defendant’s behalf to waive trial by jury. However, when the defendant refused to waive a jury trial, the Court withdrew the appointment of the Public Defender. A jury trial then commenced immediately without defendant having counsel.

Joyce Del Porte, the complaining witness, testified that on or about July 27, 1966, she and her husband learned of a vacant, furnished apartment through a rental agency. They visited the premises at 3045 N. Troy Street in Chicago and subsequently agreed to rent it from the defendant. They also agreed to pay a total security deposit of $200. They paid $80 of this sum, and received a receipt from the defendant for that amount. They were to obtain possession on August 3, 1966, but were unable to do so because the apartment was occupied by another family. Defendant asked her husband, Julian Del Porte, to assist him in evicting the occupants, but her husband refused. She and her husband then secured other accommodations. Despite their consistent demands, defendant would not return their $80, saying that they had forfeited their deposit. On cross-examination, the complainant testified that her husband signed an application for a lease and also a lease. She also testified that defendant had agreed to store the furniture because they wanted an unfurnished apartment.

Julian Del Porte corroborated the testimony of his wife, and testified that he had agreed to help the defendant move the furniture out of the apartment.

Defendant testified that he was the owner of the building in question. (The record indicates that the premises consisted of a six-room home, with defendant living in the basement.) He also testified that he believed the lessees had forfeited their deposit because they had broken the contract. They had failed to pay the balance of the security deposit and had refused to assist him in moving furniture out of the apartment.

Defendant contends that the State failed to prove that the crime of theft had been committed in that it failed to show any wrongful intent on his part.

Section 16-1 of the Criminal Code (Ill Rev Stats 1965, c 38, § 16-1) reads as follows:

“A person commits theft when he knowingly: “(a) Obtains or exerts unauthorized control over property of the owner; or
“(b) Obtains by deception control over property of the owner; or
“(c) Obtains by threat control over property of the owner; or
“(d) Obtains control over stolen property knowing the property to have been stolen by another, and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; or
“(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
“(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.”

No evidence was presented that defendant obtained the money by deception or threat. Therefore the State had to prove that defendant knowingly exerted unauthorized control over the money. The State predicated its prosecution on the basis of a demand by complainant for a return of the $80 deposit and the refusal of the defendant to do so. However in the application for lease defendant bound himself to return the money only if the tenants were unacceptable to him. Thereafter a lease was executed which was to commence on August 3 and which provided for a security deposit of $200, $120 of which remained unpaid. On August 3, complainant was unable to obtain possession because another family occupied the premises. Under the terms of the lease defendant had a right to control the deposit until the termination thereof, and the failure of defendant to deliver possession did not terminate the lease. The tenants had the right to gain possession of the premises from the occupants by a suit in forcible detainer. Gazzolo v. Chambers, 73 Ill 75; ILP, Landlord and Tenant, § 458. On the evidence contained in this record, complainant has shown no right to demand the money.

Therefore defendant could not be charged with exerting unauthorized control over it. Since the crime of theft was not proved, the judgment is reversed.

Because of our view of the proceedings, it is not necessary to discuss the other issues presented.

Judgment reversed.

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


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hushor Robinson, Defendant-Appellant.
    Gen. No. 51,665.
    First District, Fourth Division.
    February 14, 1969.
    Rehearing denied April 2, 1969.

      Gerard E. Dempsey, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant was charged in the first of a two-count indictment with having intentionally and knowingly shot and killed James McGee with a gun, without lawful justification; and in the second count with intentionally and knowingly having shot and killed James McGee with a gun, knowing that such shooting with a gun created a strong probability of death or great bodily harm to said James McGee, without lawful justification. In a bench trial the defendant was found guilty on both counts and sentenced to a term of not less than 14 nor more than 15 years in the penitentiary on each count, the sentences to run concurrently.

In this court the defendant contends:

1) The trial court improperly admitted into evidence a photograph showing the nature and extent of the fatal wound of the deceased;
2) The trial court erred in allowing the prosecution to make arguments concerning the photograph and in considering the photograph and the argument in reaching a decision; and
3) Defendant was not proved guilty beyond a reasonable doubt.

The following statute is involved:

Ill Rev Stats 1963, c 38, § 9-1. Murder, (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.

At the beginning of the trial a stipulation was entered into between the State and the defendant through their respective attorneys that if Dr. J. W. Henry, a pathologist, were to testify it would be to the effect that on April 19, 1965, he performed a post mortem examination upon the body of James A. McGee (deceased) , properly identified, and determined the cause of death to be from a gunshot wound to the brain.

In his brief the defendant states that from the very outset of the trial there was no issue as to the cause of the death of the deceased; he was killed by a bullet from a gun fired by the defendant.

EVIDENCE: State’s Witnesses.

Grace McGee, wife of the deceased, testified that on the evening of April 18, 1965, at about 9:30 p. m., the defendant called upstairs to her third-floor apartment, for her husband to come down to his apartment on the first floor. The deceased refused, and the defendant started upstairs, together with Lonnie Kinnon, with whom he had lived for seven years. The defendant came into the witness’s kitchen, “wagging” a gun back and forth in his hand, telling the deceased to get out; he began beating the deceased on the head and kicking him. They all went downstairs to the defendant’s apartment, where the defendant told the deceased to sit on the couch; that he was going to shoot him. The witness stated that at that time she, her husband, and the defendant were in the room; that Lonnie was in another room with a curtain drawn, when the defendant “just turned around and shot my husband, he shot him on the couch.” She further testified that the defendant then gave the gun to Miss Kinnon and went running out the door.

Police Officers Linzy, Pharr and McGreal testified for the State.

Witnesses for Defense.

Lonnie Kinnon testified that she owned the building where the alleged offense was committed; that she occupied the first-floor apartment; that Mrs. McGee rented the third floor; that the defendant had lived with the witness in her apartment for about seven years, and that they were not married. She stated that the defendant helped her in running the building and she had given him authority to speak as the landlord. On the morning in question the witness had heard the deceased and Mrs. McGee quarreling, during which quarrel a window was broken in their apartment. Later that evening, when the deceased was in the first-floor apartment, she spoke to him about the window, asking him to replace it, and he swore at her, saying he would do it when he was ready. She went into her room, and heard the deceased and the defendant arguing; the defendant asked the deceased to go back upstairs. The defendant asked her to call the police; she heard scuffling and “a shot came in the room.” She then heard a second shot; the defendant told her to call the police, that he had shot the deceased, and he handed her the gun, saying he was going to get cigarettes and would be right back. Mrs. McGee was on the stairway and asked the witness if her husband was dead; the witness said she didn’t know, and called the police.

The witness testified that she had five or six drinks of Scotch whisky on the day in question, but had nothing to drink after calling the police. (In rebuttal, Officer Linzy testified that while he was in the Kinnon apartment the evening in question, Lonnie Kinnon had a bottle of gin from which he saw her take more than two drinks; that she was talking in a very incoherent manner and in his opinion was intoxicated.) The witness stated that the police took pictures at the scene and found a shell under the television set in the bedroom; another shell was found inside the door to her room. She testified that a bullet went through the leg of the set about five inches from the floor.

Lawrence Cain testified that on April 19, 1965, he examined the couch in the Kinnon living room and did not see any holes in it; that on April 24, he had talked to Miss Kinnon about damage to the television set and removed the leg for repair. His testimony regarding the damage to the set was corroborated by Mercedes Keed, a friend of Miss Kinnon’s, a witness for the defense.

The defendant testified in his own behalf that he saw the deceased about 8:00 p. m. on April 18, 1965, at which time the deceased was sitting in the apartment of Lonnie Kinnon; that the defendant did not go up to the third floor that day. He denied that he beat the deceased with a pistol or that he kicked him. He had gone into the kitchen and he heard Miss Kinnon talking to the deceased who was swearing at her; he then went back through the dining room, took his gun and put it in his belt, and went into the front room and told the deceased to leave. Miss Kinnon had gone into her bedroom and the defendant told her to call the police to get the deceased out of the apartment. At that time, according to defendant’s testimony, the deceased jumped up and put his hand in his pocket; the defendant backed up a step or two and pulled out his gun, telling the deceased he didn’t want to hurt him and didn’t want to let the deceased hurt him. The deceased asked him not to shoot, and the defendant called upstairs to Mrs. McGee, but thought she did not hear him. He had the gun pointed at the deceased; the deceased touched his hand and grappled for the gun, at which time it fired and the two men scuffled on the floor. When the defendant got both hands on the gun the deceased hit him and knocked him behind the couch; the defendant then raised up off the floor and fired a shot, and the deceased fell over on the couch. The defendant testified that the deceased had previously threatened his life several times, once on or about January 15, 1965, and again on April 1,1965.

After the evidence for the defense, the State recalled Officer Linzy in rebuttal. He testified, as previously mentioned, with reference to Lonnie Kinnon’s drinking. The State’s Attorney showed him a photograph marked People’s Exhibit 7 for identification—a photograph of the deceased lying on a slab in the morgue, and showing the bullet holes. The witness pointed out on the picture the place where the bullet entered the body of the deceased, at the tip of his nose. This exhibit was admitted in evidence. The court denied defendant’s motion for a new trial, and in that motion no objection was made to the introduction of People’s Exhibit 7.

OPINION.

In this court the defendant relies principally upon the alleged error of the trial court in admitting People’s Exhibit 7. He argues that there was no reason for introducing the exhibit other than to inflame the passions of the trier of the fact and to create prejudice against the defendant. The question of where the bullet hole was in the body of the deceased is important. The defendant testified that when he shot the deceased, he, the defendant, was lying on the floor and the deceased was standing. On the other hand, Mrs. McGee testified that the deceased was sitting on the couch when the defendant shot him. The State argues that the gun was lined up with the victim’s head, as the hole in the nose indicates a straight-on shot, and that if the defendant had fired the gun from the floor there would have been an angle to the shot.

When Officer Pharr examined the photograph he said the bullet had entered the forehead of the deceased, and indicated the place on the photograph. In rebuttal, Officer Linzy was shown People’s Exhibit 7, and he pointed out the place where the bullet entered the body of the deceased. In order to determine where the bullet entered the body of the deceased, it would seem the best way would be to have the photograph before the trier of the fact. The defendant argues that the photograph was not needed as proof of any element of the offenses charged. With that conclusion we disagree, and feel that the photograph was of importance to the trier of the fact to determine where the bullet entered the body and that it bears very definitely upon the position of the deceased and the defendant at the time the shot was fired. Nor do we feel that the trier of the fact—whether judge or jury—has such a delicate sensibility as to be overwhelmingly swayed by the picture.

In People v. Hobbs, 297 Ill 399, 416, 130 NE 779, a case involving abortion, the trial court admitted in evidence the uterus of the deceased and held that the “jury had a pretty full description, but a view of the thing itself was an aid in understanding the nature and extent of the injury and determining how the offense was committed.”

In People v. Tilley, 411 Ill 473, 104 NE2d 499, also an abortion case, the court said at page 476:

“It is also contended the court erred in admitting into evidence the preserved female parts of the deceased and allowing them to be exhibited to the jury: that such evidence could serve no useful purpose except to arouse anger and prejudice. This contention must likewise be rejected. The court has a reasonable discretion in the admission or rejection of exhibits in evidence. Even though the jury may have a full description of the injury by the testimony of physicians, it is not an abuse of discretion to admit in evidence the uterus itself to aid the jury in understanding the nature and extent of the injury and in determining how the offense was committed. It at least tended to prove a circumstance to be considered by the jury along with all the other evidence. See People v. Tilley, 406 Ill 398; People v. Hobbs, 297 Ill 399.”

These cases are controlling in the instant case, and the trial court committed no error in admitting the photograph. It might be mentioned in passing that no objection was made by the defendant to the introduction of the evidence.

The comments of the State’s Attorney in argument with reference to the exhibit were not improper. The argument was predicated upon the evidence, and it is proper for the State’s Attorney to argue the guilt of the accused where he states, or it is apparent, that his opinion is based solely on the evidence. People v. Williams, 26 Ill2d 190, 186 NE2d 353.

The evidence was in sharp conflict. The trial court believed Grace McGee and disbelieved the testimony of the defendant and Lonnie Kinnon, and found the defendant guilty. In People v. West, 15 Ill2d 171, 154 NE2d 286, the court said at page 176:

“Where a cause is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge (People v. Litberg, 413 Ill 132; People v. Holt, 398 Ill 606); and unless it can be said the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. (People v. Crawford, 387 Ill 616.)”

In the instant case the evidence established defendant’s guilt beyond a reasonable doubt.

The defendant was sentenced to a term of 14 to 15 years on each of two counts of an indictment growing out of his alleged murder of James McGee. Count I charged the defendant with committing the offense of murder in that he intentionally and knowingly shot and killed James McGee with a gun without lawful justification, in violation of section 9-1, chapter 38 of Ill Rev Stats 1963. Count II of the indictment charged that the defendant committed the offense of murder in that he intentionally and knowingly shot and killed James McGee with a gun, knowing that such shooting with a gun created a strong probability of death or great bodily harm to James McGee, without lawful justification, in violation of section 9-1 (a) (2), chapter 38 of Ill Rev Stats 1963.

It clearly appears from the record that the defendant was convicted and received two sentences for a crime that resulted from the same conduct, the killing of James McGee. This was improper. In People v. Peery, 81 Ill App2d 372, at 377, 225 NE2d 730, the court said:

“Defendant was convicted of attempted murder and of aggravated battery, both of which arose from the same conduct. Though this contention was not raised on appeal, under People v. Schlenger, 13 Ill 2d 63, 147 NE2d 316, concurrent sentences for crimes arising from the same conduct are improper . . . .”

In the case before us this point was raised by the defendant in a supplemental brief, and the error is apparent on the face of the record. Supreme Court Rule 615 provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. In his supplemental brief in this court the State’s Attorney asks that the double sentence be corrected.

The judgment of the trial court finding the defendant guilty on the first count of the indictment is affirmed. The judgment on the second count is reversed.

Affirmed in part, reversed in part.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Myrick, Defendant-Appellant.
    Gen. No. 52,543.
    First District, Fourth Division.
    February 14, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The defendant, Lawrence Myrick, was indicted for the crime of murder. He waived trial by jury, and after a bench trial was found guilty of the lesser offense of voluntary manslaughter and sentenced to the penitentiary for a term of one to fourteen years. The defendant appeals, contending that he was improperly convicted of manslaughter since he was acting in self-defense when he shot the deceased.

Willie Woodard testified that he was a close friend and co-worker of Herman Stevenson, the deceased. After leaving work at a food mart on September 23, 1966, at about 7:00 p. m., the witness and the deceased went to a restaurant near the intersection of Ogden and Spaulding in Chicago. They later went outside the restaurant and sat around with some other friends. This group consisted of six or seven young men and about eight or nine girls. Between 8:00 and 9:00 p. m., defendant entered the restaurant with a friend. Upon leaving the restaurant, the defendant and his friend came up to Stevenson, and defendant asked Stevenson if he wished to finish a fight the two had about a year previously. The witness did not know defendant but had heard of the fight, and also knew that Stevenson had gone to jail as a result of the previous fight. At first the deceased refused to fight, but then deceased and defendant started fighting. During the fight defendant’s friend drew a gun and told everyone to get back. Defendant asked for the gun, but his friend refused to give it to him. At this point, the witness left the scene. He did not witness the shooting, and he did not see a razor in the deceased’s hands at anytime during the fight.

Willie Mennis, also a friend of the deceased, testified that he was in the group in front of the restaurant. The defendant and a friend, both unknown to the witness, came out of the restaurant, and defendant picked a fight with the deceased. Neither boy had a weapon during the fight, but defendant’s friend drew a gun and told everyone to stand back. Defendant stepped away from the deceased and asked his friend for the gun. The friend at first refused, but finally gave the gun to the defendant. Defendant struck the deceased in the stomach and on the back of the head with the butt of the gun, and the deceased swung back with his fist. Defendant then stepped back and shot the deceased. As the witness walked to the restaurant, he heard another shot fired. When the police were called, defendant and his friend fled from the scene.

Officer John Mohan of the Chicago Police Department testified that he was assigned to investigate the death of Herman Stevenson, and that the defendant voluntarily surrendered eight days after the occurrence. Enez Gal-lion, mother of Herman Stevenson, testified that her son was 16 years of age at the time of his death.

Defendant testified on his own behalf that he and deceased had a fight about a year prior to this occurrence, as a result of which deceased was jailed for six months. On the evening in question he met an acquaintance known to him only as Eddie. They went to a restaurant, and as they were leaving, the deceased asked him if he was ready to finish the fight. Defendant started to leave, but the deceased struck him on the head with his fist. He backed away because the deceased had a razor in his hand, but when Stevenson gave the razor to one of his friends, defendant and deceased began fighting. When defendant started to get the better of the fight, one of the deceased’s friends grabbed him around the neck while Stevenson continued to kick and hit him. “Somehow the gun got into his hand” and he shot the deceased, who at the time was about twelve feet from him. Defendant was dizzy and bleeding from the mouth at the time he fired the gun. He also was afraid for his life because of his fear of the deceased and of the other members of the deceased’s gang who were present. He panicked when the police arrived and fled the scene. He surrendered eight days later.

Defendant’s sole contention on this appeal is that the trial court erred in not finding that the defendant was justified in the killing under the law of self-defense. Voluntary manslaughter is defined in part as follows:

“(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
“(1) The individual killed, . . .
“Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill Rev Stats 1965, c 38, § 9-2.)

Article 7 of the Code provides in part:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, . . . .” (Ill Rev Stats 1965, c 38, § 7-1.)

The credibility of witnesses and the weight to be given their testimony is for the trier of fact and the reviewing court will not substitute its judgment for that of the trial court merely because the evidence is conflicting, unless guilt has not been established beyond a reasonable doubt. People v. Paulson, 80 Ill App2d 44, 225 NE2d 424 (1967); People v. Knox, 94 Ill App2d 36, 236 NE2d 384 (1968).

We consider it unnecessary to determine whether defendant’s testimony, if uncontroverted, would justify an acquittal under the theory of self-defense, since we find ample evidence to support the finding of guilt in the instant case. The testimony adduced by the State revealed that defendant was the aggressor in renewing a fight with the deceased, that the deceased had no weapon, that during the fight the defendant obtained a gun from an armed friend, and shot the deceased at a time when defendant was in no peril. Defendant argues that the State’s evidence was implausible because defendant would not pick a fight when his opponent was accompanied by at least nine friends, nor would he stop the fight to get a weapon at the risk of being assaulted during this interval. We believe that the court could properly find that the testimony of the State’s witnesses was more believable than defendant’s uncorroborated testimony that “somehow the gun got into his hand” and that he was afraid for his life when the deceased was twelve feet away and unarmed. We do not find the State’s evidence so improbable or so implausible as to justify a reasonable doubt as to defendant’s guilt. People v. Pena, 72 Ill App 2d 305, 219 NE2d 667 (1966). Defendant also impugns the credibility of the two State’s witnesses because they were friends of the deceased. While the friendship between the State’s witnesses and the deceased was a factor to be considered by the court in weighing the evidence, such friendship would not destroy their credibility. The trial court had an opportunity to observe all the witnesses, to evaluate their testimony, and specifically found that defendant killed the deceased while acting under an intense passion resulting from serious provocation. We see no reason to disturb its finding.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Sandra Roseman, Plaintiff-Appellant, v. Paul A. Wilde and Richard W. Wilde, Defendants-Appellees.
    Gen. No. 52,558.
    First District, Fourth Division.
    February 14, 1969.

      Louis P. Miller, of Chicago, for appellant.
    Richard C. Bleloch, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The plaintiff brought an action for injuries sustained on June 21, 1964, when, as the result of the alleged negligence of the defendants in permitting a defect to remain in a porch floor, she fell on a porch which was part of premises leased to her grandmother by defendants. The Circuit Court entered a summary judgment in favor of the defendants from which this appeal is taken.

Mrs. Ella L. Carr (grandmother of plaintiff) commencing in 1957 rented an apartment by successive leases from defendants in the building at 1739 Grove Street, Glenview, Illinois. Mrs. Carr, who was residing in her Wisconsin summer home, invited plaintiff to use her apartment temporarily. Plaintiff moved into the apartment with her husband on June 18, 1964. They planned to remain there for two weeks until their own apartment was ready for occupancy.

At about 11:00 p. m. on June 21, 1964, (about an hour after the cessation of a rainstorm) plaintiff was carrying some garbage outside across a porch which is adjacent to and accessible only through the apartment, when she slipped and fell and sustained injuries. She fell in an area which was wet from rain and where “the cement top layer had come up leaving a rough surface.” There was a light on the porch. Plaintiff admitted she was aware of the rough surface of the porch as was her grandmother, the lessee. The porch is part of the premises leased by Mrs. Carr and is under her exclusive control. In her affidavit Mrs. Carr stated that she first rented the premises in 1957. Her affidavit continues:

That at the time the premises were rented to her, there was a spot in the patio in which the cement was scaling and deteriorated. The cement in said spot continued to deteriorate and she called it to the attention of her then landlord in the summer or spring of 1958. The landlord thereupon attempted to make repairs in the said patio at the spot aforesaid and in so doing, spread cement over a hole in the patio which had developed but that the said cement in a short time broke away and the hole in the patio reverted to the same condition as before the repairs were made.
Affiant further says that the hole in the cement was the identical spot pointed out to her by SANDRA ROSEMAN as the spot where she sustained her injury. Affiant further says that at no time during her occupancy of the premises did she make any repairs to or alter or change the condition of the spot at the place aforesaid.

The lease under which Mrs. Carr was holding was dated June 14, 1963, and became effective September 1, 1963, nine months before the accident. It contained the standard provisions in leases that “lessee has examined and knows the condition of said premises and has received the same in good order and repair. . . .” and that “lessor shall not be liable for any damage occasioned by failure to keep said premises in repair.”

Opinion

Plaintiff contends that she was a guest of the lessee and that the landlord is liable for a defective condition which existed prior to the leasing even in that part of the leased premises over which the lessee had exclusive control. In support of this contention plaintiff relies on Wagner v. Kepler, 411 Ill 368, 104 NE2d 231. In that case the plaintiff, a minor who lived in a first-floor apartment, was playing on the landing of the second-floor apartment. A separate stairway led from the backyard to the second-floor apartment which was occupied by a lessee of the owner-defendant. The boy was injured when an allegedly defective railing gave way. It did not appear that the plaintiff had been invited onto the lessee’s stairway or landing nor that the lessee even knew that plaintiff was there. The court, after restating the general principle that the lessee and not the owner is liable for injuries to third persons as a result of failure to keep the building in repair, further said at page 371:

But where an owner leases property with actual or constructive notice of a defective and dangerous condition which remains uncorrected, the owner, notwithstanding the lease, is liable to strangers for injuries caused by the defect .... [Emphasis added.]

In Wagner the plaintiff was a stranger. In the instant case plaintiff was a guest and not a stranger. Therefore Wagner is inapplicable, and it is necessary to determine what duty is owed by a landlord to the guest of a tenant.

A guest is categorized as a licensee, Kapka v. Urbaszewski, 47 Ill App2d 321, 198 NE2d 569; and a licensee stands in the same position as a lessee vis-a-vis a landlord and has no greater rights. Hendricks v. Socony Mobil Oil Co., 45 Ill App2d 44, 53-54, 195 NE2d 1; Elbers v. Standard Oil Co., 331 Ill App 207, 222-224, 72 NE2d 874; Soibel v. Oconto Co., 299 Ill App 518, 521, 20 NE2d 309; Shields v. J. H. Dole Co., 186 Ill App 250, 255.

As between a landlord and his lessee, the landlord is not liable for defects in the premises which exist at the beginning of the lease period unless he conceals or fails to disclose such defects of which he has or should have knowledge. Soibel v. Oconto, supra. If the defect is of such a nature that the lessee can or does discover it himself, then there is no liability on the landlord. Elbers v. Standard Oil Co., 331 Ill App 207, 226, 72 NE2d 874; Restatement of the Law of Torts 2d, § 358. In the instant case it is clear that both the plaintiff and her grandmother, the lessee, knew of the irregularity in the porch and therefore there is no liability on the landlord for injury ensuing therefrom.

Since there were no questions of fact for the trial court, the entry of a summary judgment for the defendants was proper and the judgment is affirmed.

Affirmed.

ENGLISH and STAMOS, JJ., concur.

       The following statement from ILP, Negligence, § 62 is most illuminating:

        Subject to certain exceptions, the general rule is that the duty owed by one who owns or is in charge of premises to an infant trespasser or licensee is the same as the duty he owes to an adult trespasser or licensee. Thus an owner or person in charge of premises owes no duty to keep the premises in any particular condition to enhance the safety of infant trespassers or licensees, and he is not required to exercise ordinary or reasonable care to the end that this may be accomplished.
      However, it has been stated that Illinois has gone farther with respect to placing duties on owners and occupants of dangerous premises when children non sui juris are involved than the courts of many other states, and, in the case of Wagner v. Kepler, 1952, the Supreme Court, Justice Schaefer delivering the opinion, pointed out that, even in the absence of dangerous attractions, there are recognized exceptions to the general rule imposing no greater duty on a property owner toward an infant trespasser or licensee than toward an adult trespasser or licensee.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Scott, Defendant-Appellant.
    Gen. No. 50,071.
    First District, First Division.
    February 17, 1969.

      Gerald E. Frank, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

In November, 1959, the defendant, Roosevelt Scott, was charged with the murder of Gertrude Rhinehardt and John Schot. After a jury trial in the Criminal Court of Cook County, Scott was found guilty of the crimes and received the death penalty. In September, 1963, this conviction was reversed and remanded by the Illinois Supreme Court because of various trial errors. People v. Scott, 29 Ill2d 97, 193 NE2d 814 (1964).

Prior to his second trial, Scott was represented by an attorney who has spent some four years of work on the case. This attorney offered several pretrial motions in January, 1964, on the defendant’s behalf, but on March 3, 1964, the attorney stated that he felt he could no longer effectively represent the defendant. The defendant concurred, and the attorney was permitted to withdraw as defense counsel by the court. The defendant requested a new attorney be appointed by the Bar Association, which request was granted on March 25, 1964. The defendant subsequently voiced his displeasure with this new attorney, and the latter was allowed to withdraw as defense counsel on May 26, 1964. The defendant refused the services of the Public Defender, and expressed his desire to represent himself, whereupon on June 10, 1964, the court appointed a Public Defender as legal ad-visor to the defendant to assist the defendant in his defense. On June 11, 1964, defendant presented a motion to dismiss the charges against him which the court denied. The court then suggested that the defendant receive a Behavior Clinic examination, however, the defendant stated he was examined at the clinic in 1961 and was declared “quite sane.” The court continued to advise the defendant to undergo an examination, yet the defendant refused to do so.

On June 16, 1964, the defendant and his legal advisor appeared before the court, and the court offered to hold a hearing on a motion to suppress an alleged unsigned statement or confession of November 25, 1959. This motion had been made on January 9, 1964, by the attorney who had originally handled the defendant’s cause, but had not yet been heard or ruled upon by the trial court. The defendant, contrary to the advice of his legal advisor, refused to renew or refile the motion to suppress the alleged statement or confession, and declined to have a hearing on the question of the voluntariness of the statement, stating that he had never made a statement or confession nor had signed such a document, and the filing of this motion would prejudice his defense as he saw it. (The defendant subsequently reaffirmed this position to the court on several different occasions.)

The cause was set for trial on July 13, 1964. The defendant agreed to let his legal advisor conduct the voir dire and select the jury, but insisted upon conducting his own defense. At the trial, the State introduced the statement allegedly given by the defendant on November 25, 1959, in which defendant admitted his complicity in the murders of Mrs. Rhinehardt and Mr. Schot. The defense did not put on any witnesses in its behalf after the State rested its case. On July 29, 1964, the jury found the defendant guilty of the murder of Gertrude Rhinehardt as charged in the indictment. Judgment was entered on the findings against the defendant, and the defendant was sentenced to the penitentiary for not less than one hundred nor more than one hundred-fifty years. This appeal followed in order to review certain preliminary findings and the judgment. No question is raised as to the pleadings.

It is the theory of the defendant that he was denied due process of law when the trial court failed to impanel a jury for the purpose of determining whether the defendant was competent to stand trial; that the trial court committed reversible error by its failure to conduct a full hearing on the admissibility of the defendant’s alleged confession; and that the Illinois Courts of Review must make an independent determination as to the voluntariness of the defendant’s alleged confession.

It is defendant’s first contention that section 104-2 (a), read in conjunction with section 104-2(d), chapter 38, 111 Rev Stats 1965, expressly places an affirmative duty upon the trial court to impanel a jury for the purpose of determining the competency of the defendant to stand trial. Specifically, section 104-2 (a) states:

“If before a trial, or after a judgment has been entered but before pronouncement of sentence, or after a death sentence has been imposed but before execution of that sentence, the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency. If a jury is waived by the defendant, the court shall conduct a hearing to determine the defendant’s competency.”

While section 104-2 (d) provides:

“The court may appoint qualified experts who shall be compensated by the county to examine the defendant with regard to his competency and to testify at the hearing. Any party may introduce at the hearing other evidence regarding the defendant’s competency. No statement made by the accused in the course of any examination into his competency provided for by this Section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.”

Section 104-1 defines the meaning of “incompetent”:

“For the purpose of this Article, ‘incompetent’ means a person charged with an offense who is unable because of a physical or mental condition:
“(a) To understand the nature and purpose of the proceedings against him; or
“ (b) To assist in his defense; or
“(c) After a death sentence has been imposed, to understand the nature and purpose of such sentence.”

Defendant advances a series of Illinois cases, beginning with People v. Geary, 298 Ill 236, 131 NE 652 (1921), for proposition that when facts give rise to doubt the defendant’s competency to stand trial, the court must suspend all proceedings and conduct a competency hearing. People v. Bender, 20 Ill2d 45, 169 NE2d 328 (1961); People v. Robinson, 22 Ill2d 162, 174 NE2d 820 (1961); People v. Richeson, 24 Ill2d 182, 181 NE2d 170 (1962); People v. Thompson, 36 Ill2d 332, 223 NE2d 97 (1967); People v. Burks, 80 Ill App2d 324, 224 NE2d 668 (1967).

The defendant also devotes twenty-six pages of his brief to excerpts from the record of the proceedings concerning defendant’s behavior and actions during pretrial matters wherein: the attorney who originally represented defendant was allowed to withdraw from the case; the defendant’s subsequent displeasure with the next attorney appointed to represent him and his withdrawal from the case; the defendant’s refusal to accept the Public Defender as counsel; the defendant’s insistence in representing himself, and his ignoring the court’s advice to renew the motion to suppress the alleged statement or confession; and defendant’s refusal to submit to the Behavior Clinic examination. It is upon the above conduct that defendant contends the trial court committed reversible error in not suspending the proceedings to conduct a competency hearing, and that failure to conduct such a hearing denied defendant due process of law.

It is well established that the trial or conviction of an incompetent defendant violates his right to due process of law. People v. Burson, 11 Ill2d 360, 143 NE2d 239. Illinois courts have defined “competency” as involving two distinct elements: (1) Whether the defendant understands the nature of the charge or charges made against him; and (2) Whether the defendant was unable to cooperate with his counsel and conduct his defense in a rational and reasonable manner. People v. Richeson, supra, People v. Bender, supra, People v. Robinson, supra, People v. Burks, supra. Sections 104-2(a), (b) both specifically state that the trial court must conduct a competency hearing only when the court has reason to believe that the defendant is incompetent, and in People v. Baker, 26 Ill2d 484, 187 NE2d 227 (1963), our Supreme Court has construed the concept of these statutes as follows:

“We have thus held that if, before or during trial, facts are brought to the attention of the court, either from its own observations or by suggestion of counsel, which raise a bona fide doubt as to a defendant’s present sanity, it becomes the duty of the court to impanel a jury to determine whether the accused is capable of understanding the charges against him and of co-operating with his counsel.”

In People v. Milligan, 28 Ill2d 203, 190 NE2d 753 (1963), the concept of “bona fide doubt” was further construed:

“The key to requiring a sanity trial is the existence of a bona fide doubt as to the defendant’s present sanity. The trial court, therefore, has discretion in determining whether the facts of a particular case warrant a sanity hearing.”

It is thus clearly apparent that a trial court must conduct a competency hearing only when it (the trial court) has reason to believe that there is a bona fide doubt as to whether the defendant is capable of understanding the nature of the charged offense and is capable of cooperating with counsel. The record before us does not disclose there was any request by defendant or his advisor for a competency hearing, nor were the acts and behavior of the defendant of the nature that would raise a bona fide doubt of his competency which would require the court to hold a hearing. The trial court was able to observe the defendant’s behavior and conduct before and during the trial, and at no time did the trial court comment or express any doubt as to the defendant’s competency to stand trial or participate in pretrial proceedings. Defendant’s dissatisfaction with appointed counsel, lack of faith in the Public Defender, and his insistent, intentional and voluntary choice to act as his own attorney and to employ his own trial strategy cannot be construed to establish an inability to understand the nature of the charged offense. It is interesting to note that of the three capable attorneys who were involved in defending and advising the defendant at various times during the proceedings, none of these men, nor the defendant, ever requested a competency hearing or suggested the court consider conducting such a hearing. Defendant’s original counsel, who had spent over four years representing defendant, never intimated that his withdrawal from the case was dictated by defendant’s incapacity to cooperate. Counsel expressly declared that:

“Your Honor, Mr. Scott and I have discussed this at length. I am in no position to speak for him, but I do believe that he understands the consequences of his request, his first request this morning, and mine. He knows the volume of work that has gone into the case . . . .”

It therefore appears defendant was not under any incapacitation to cooperate, as would constitute incompetency. There is no evidence in this record that the behavior, conduct, or acts of the defendant were true manifestations of incompetency to understand the nature of the proceedings, nor was there any evidence presented of any prior mental illness suffered by the defendant. The record reflects numerous instances where defendant displayed ability to assist and conduct his defense in a reasonable and rational manner wherein he displayed mental alertness as well as understanding and knowledge of the proceedings. The following observation made by the court in People v. Shrake, 25 Ill2d 141, 182 NE2d 754 (1962), is most pertinent here:

“We see nothing in these facts which establish such bona fide doubt of defendant’s sanity as to have required the court to cause a sanity hearing to be held. No claim was made at any time that defendant was insane, nor did it appear that he had ever been so adjudicated. Nothing in his testimony or demeanor suggests a lack of mental capacity but shows instead that he understood the nature of the proceedings against him, that he was fully capable of cooperating with his counsel and the court, and that he knew and had known at all times the consequences of his criminal actions.”

Under the circumstances contained in this record, we are of the opinion that the trial court did not violate any affirmative duty to the defendant, and did not deny any constitutional right of the defendant, when he did not, of his own volition, impanel a jury to conduct a competency hearing as to defendant’s fitness to stand trial.

Defendant next contends the trial court’s failure to conduct a hearing on the admissibility of the alleged confession, although no request was made by the defendant as to a hearing, and the court’s failure to conduct a hearing on the issue of voluntariness, even though defendant denied making any such confession, denied the defendant due process of law. On January 9, 1964, defendant’s original attorney filed several pretrial motions, including a motion to suppress a confession. The motions were not then ruled upon. On May 22, 1964, defendant filed a pro se motion to suppress this alleged confession on the ground that he had never signed a confession, and argued that no such confession existed. The court overruled this motion on May 26, 1964, only after explaining to the defendant that it was legally deficient, and advised defendant to predicate such a motion on the grounds of involuntariness. On June 16,1964, the trial court repeatedly urged defendant to renew the motions made on January 9, 1964, by the attorney who first represented him, but the defendant wanted such motions withdrawn. (Contrary to his legal advisor’s advice.) A trial date was set, and the unsigned instrument was subsequently used against the defendant.

Our reading of the record reveals emphatically that Roosevelt Scott, acting voluntarily as his own attorney, flatly refused to file a motion to suppress the alleged confession, based on its involuntariness, or to renew the prior motion filed by the first attorney who represented him. While the court urged the defendant that it would be to his advantage to pursue such a procedure, as did his legal advisor, the defendant declined to heed that advice, so that the objection of voluntariness and a proper motion to suppress were never claimed at or before the trial, and therefore, were waived. People v. McMath, 40 Ill2d 388, 240 NE2d 593 (1968); People v. Caldwell, 39 Ill2d 346, 236 NE2d 706 (1968). It is our opinion the trial court did all that it could reasonably do to convince the defendant that he should seek a hearing on the voluntariness of the confession. It has long been the rule in Illinois that it is incumbent upon a defendant to raise the issue of voluntariness of a confession either prior to, or during trial. As the court said, in People v. Hurry, 385 Ill 486, 52 NE2d 173 (1944):

“The law is well settled that a confession or admission by a defendant in a criminal case is admissible without preliminary proof, where no objection is made that it is involuntary. If objection is made the question of whether the confession is voluntary or involuntary must be decided by the court upon a preliminary hearing to determine the admissibility.”

In People v. Caldwell, supra, this view was reaffirmed:

“The rule adopted in Jackson v. Denno, 378 US 368, 84 S Ct 1774, 12 L Ed2d 908, which requires that an initial judicial determination of the voluntariness of a defendant’s confession be made outside the presence of the jury when objection is made to its admission, has long been the law in this State. (See People v. Fox, 319 Ill 606, 616-619, 150 NE 347.) We have said that ‘a confession may be challenged either by preliminary hearing on a motion to suppress (People v. Spencer, 27 Ill2d 320, 189 NE2d 270) or by appropriate objection thereto at the trial (People v. Wagoner, 8 Ill2d 188, 133 NE2d 24), and failure to pursue one of these devices ordinarily precludes consideration of the matter on appeal (People v. Williams, 26 Ill2d 190, 192, 186 NE2d 353; People v. Jones, 31 Ill2d 42, 50, 198 NE2d 821) . . . .’ (People v. Taylor, 33 Ill2d 417, 421, 211 NE2d 673, 675.)”

In the instant case, the defendant filed a pro se motion to suppress the confession on the grounds that the confession did not contain his signature, which did not raise the question of voluntariness, and which was not grounds for suppression. As the trial judge stated in overruling the motion:

“THE COURT: I will advise you on the motion you have presently filed, in the opinion of the court it is not well founded in the law and not in your best interest. If you wish to proceed on that motion which seeks to suppress a confession merely because it does not contain your signature, your interest would not be protected to my understanding. And at the last trial and at the present time, the attorneys representing you have indicated an intention to urge the court to suppress the confession on the ground it was involuntary.”

It is our opinion there was no violation of the defendant’s right to test the voluntariness of the confession, because of the court’s failure to conduct a hearing on the admissibility of such confession, and such action on the part of the trial judge did not deny the defendant due process of law. People v. Norfleet, 29 Ill2d 287, 194 NE2d 220 (1964). People v. Thigpen, 33 Ill2d 595, 213 NE2d 534 (1966), and other cases advanced by the defendant are distinguishable from the instant case.

Defendant also argues that the Appellate Court should make an independent determination as to the voluntariness of the defendant’s confession, and whether or not such confession has been coerced. We have reviewed the entire record and find no evidence or mention of deception, illegal confinement or physical brutality by the defendant or by any of his attorneys or legal advisor practiced upon the defendant to elicit any statement from him. The lie detector test administered to defendant was at his own request, and the lapse of five and one-half hours from the time he was taken from the police station to the crime laboratory for such test and back to the police station, and the allegations in his pro se motion to dismiss, fail to indicate any competent evidence of coercion exercised upon the defendant. In the various United States Supreme Court cases cited by defendant, the Court ruled that confessions had been obtained involuntarily from the respective defendants, and those cases involved factual evidence of coercion that is totally lacking in the case at bar.

For the above reasons the judgment of the trial court is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Guarzee Gray, Defendant-Appellant.
    Gen. No. 51,845.
    First District, First Division.
    February 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

The defendant, Guarzee Gray, was charged with having committed the crime of rape. After a bench trial, the court found the defendant guilty of the offense as charged and sentenced him to the Illinois State Penitentiary for a period of not less than eight, nor more than twenty years. On appeal, the defendant’s sole contention is that his guilt was not proven beyond a reasonable doubt.

At the trial, the complaining witness testified as follows: On February 13, 1966, at approximately 6:10 p. m., she was in the vicinity of 3852 W. 13th Street, in the City of Chicago, when the defendant came up behind her, pulled out a butcher knife, identified himself as “Great Guarzee,” pushed her into a building, walked her down several stairs to a landing, and told her to lay down. Moments later several children came into the building, whereupon defendant pulled her up and put his hand over her mouth, threatening her life if she cried out. The complaining witness managed to scream, and defendant drew a gun and told her to be quiet or he would kill her. After the children left the building, defendant pushed her down once again, took a scarf from her head, pulled up her skirt, removed her undergarments and a Kotex pad she was wearing due to her menstrual period which began that day, and then proceeded to rape her. When the act was completed, the defendant pushed her up the stairs to the door, and inquired if she had any money. She informed defendant she only had a quarter. Defendant took the quarter and the coat the complaining witness was wearing. As both were about to leave the building, the complaining witness saw a man at the doorway, but did not speak to him as she walked past him because defendant was behind her and she was in fear for her life. The man’s identity was never ascertained. Defendant then walked her to the alley and told her to leave and not to look back or he would shoot her in the back.

The complaining witness then went to her aunt’s home. From there, escorted by her cousin, she went to her home. There she related to her mother what had happened. Her mother immediately called the police, who after interrogating her, took her to the scene of the incident. At the scene she saw her undergarments and scarf, and blood was on the floor. The police then transported her to Mount Sinai Hospital for a medical examination. It was stipulated between the State and the defense that the result of the medical examination by Dr. Chans would be as follows:

“Physical examination is negative. Pelvic examination not performed. Hymen is not intact, widely open. Vaginal smear was obtained and no sperm was seen. The doctor would further testify that there were no signs of any violence.”

On February 17, 1966, the police showed the complaining witness a group of five or six individual pictures of men, of which she identified one of the men as the man who had raped her. On April 22, 1966, defendant was arrested at 1540 South Ridgeway Avenue, Chicago, and brought to the 10th District Police Station where the complaining witness identified him in a showup of seven men as the one who raped her.

Defendant, testifying on his own behalf, stated he knew the complaining witness about two months, and that on the day in question he saw her on 13th Street and Springfield Avenue at about 3:30 in the afternoon and engaged in a conversation with her. He stated that she consented to have intercourse with him. Defendant and the complaining witness went to the place in question and spoke for a while. She then removed her coat and both tried to have intercourse, but some people in the building hollered to them to get out of the building, whereupon the complaining witness left the premises, leaving her coat behind. Defendant picked up her coat and then left the building. Since defendant could not find the complaining witness, he took the coat with him to his mother’s house and told her to give it to the complaining witness. Defendant’s mother subsequently testified that defendant brought a coat home and asked her to hold it, and if a girl named Alice came by to get it, she should give it to her. Defendant denied that he ever owned a butcher knife or a gun, nor made any mention of the complaining witness’s undergarments being left at the scene.

Officer Young of the Chicago Police Department testified that on February 13, 1966, he was summoned to the complaining witness’s home where he was informed by the complaining witness that she had been raped. Young escorted the complaining witness to 3852 West 13th Street, where he observed in the stairwell inside the building, the complaining witness’s undergarments strewn about on the landing between the first floor and the basement. The complaining witness was then taken to Mount Sinai Hospital for further examination.

Defendant argues that he was not proven guilty of the crime of rape beyond a reasonable doubt and that the reviewing court is charged with the duty to carefully examine the evidence in rape cases. People v. Qualls, 21 Ill2d 252, 171 NE2d 612 (1961); People v. Scott, 407 Ill 301, 95 NE2d 315 (1951).

Defendant’s conviction was based on the testimony of the complaining witness and officer Young, and when the trial judge has seen and heard such testimony, the reviewing court will not substitute its judgment on the matter of the credibility of witnesses and the weight to be given their testimony, unless the court’s judgment rests on doubtful, improbable or unsatisfactory evidence. People v. Barney, 89 Ill App2d 180, 232 NE2d 481 (1968); People v. Brown, 29 Ill2d 375, 194 NE2d 326 (1964). It is argued that Dr. Chans’ report of the medical examination of the complaining witness is persuasive proof that there was no intercourse between her and the defendant, and that the report’s silence as to mention of any blood from the vaginal smear thereby suggests that the complaining witness was not experiencing her menstrual period and there could not have been blood on the floor as she testified.

The testimony of the complaining witness was definite, and was corroborated by the fact that police officer Young had found at the scene, the undergarments which the complaining witness identified as belonging to her. While officer Young did not mention that he saw blood on the floor or a Kotex pad, as the complaining witness had previously testified, the record fails to show any direct contradiction between the testimony of the two witnesses and the court found no reason to doubt the testimony of either witness.

It is also significant that defendant had possession of the complaining witness’s coat from February 13, 1966, until the time of his arrest. Although he did not know the address, he knew where she lived, but at no time did he try to contact her to return it or offer to return it. Defendant stated that the complaining witness told him she did not think it was a good idea for him to come to her home, and that he acceded to her wishes.

The complaining witness testified on cross-examination that she moved to Chicago from Champaign, Illinois, on January 22, 1966, and that the rape occurred about two weeks later; however, defendant testified on direct examination he knew the complaining witness for two months and had seen her at least eight times during that period in the neighborhood and in local restaurants. Nevertheless, we do not think the finding of defendant’s guilt is inconsistent or affected by the conflict in the parties’ testimony concerning when they knew each other. Any inconsistency of a complaining witness’s testimony is not grounds for reversal of a conviction unless it is substantial and significant. People v. Adkins, 29 Ill2d 332, 194 NE2d 313 (1964).

We do not think the complaining witness was duty bound to cry out and resist the defendant when confronted by him, first with a knife and later on with a gun. People v. Harrison, 25 Ill2d 407, 185 NE2d 244 (1963); People v. Stewart, 74 Ill App2d 407, 221 NE2d 80 (1967). Nor do we believe the complaining witness was under a duty to ascertain the identity of the man she saw on the landing when leaving the building with defendant, or enlist his aid, since the defendant was immediately behind her, armed, and had previously threatened her life if she attempted to scream or sought to flee. Under the circumstances, resistance would have been dangerous and futile and therefore not required.

Our attention is called to the comment of the trial court at the conclusion of the closing arguments where the court stated:

“THE COURT: I cannot believe that a girl, in the midst of her menstrual period, will go up under the front stairs of a hallway and have intercourse or attempt to have it, walk off and leave not only her panties, also her garter belt and her coat. I have searched, and I have found no reason to doubt the story of the witness. There will be a finding of guilty. Judgment on the finding. In my opinion, there was sufficient evidence of force to justify no outcry. That the notification of the attack took place sufficiently promptly.”

Upon diligent review of the entire record, we are of the same opinion. The testimony and the evidence adduced at the trial, considered as a whole, established the guilt of the defendant beyond a reasonable doubt, and therefore, the judgment of the trial court will be affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    Nicholas J. Pantaleo, Plaintiff-Appellee, v. Stanford Gamm and Julian Romane, d/b/a Gamm Construction Company, Defendants-Third Party Plaintiffs-Appellants, v. Peter J. Passantino, et al., Third Party Defendants.
    Gen. Nos. 52,175, 52,290. (Consolidated.)
    First District, First Division.
    February 17, 1969.

      Howard C. Sorensen, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellants.
    McCarty & Watson, of Chicago (John H. Watson, Jr., and John J. Ryan, of counsel), and Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Karl M. Tippet and D. Kendall Griffith, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Nicholas J. Pantaleo, an employee of the defendant’s, roofing subcontractor, brought the present action against the general contractor, Stanford Gamm and Julian Romane d/b/a Gamm Construction Company (hereinafter referred to as general contractor), for injuries sustained while riding on a materials hoist. The plaintiff based his cause of action upon an alleged violation of sections 1 and 9 of the Structural Work Act (Ill Rev Stats 1967, c 48, pars 60, 69). The defendant general contractor, in turn, brought a third-party action against the roofing subcontractor, the plaintiff’s employer, for contribution or indemnification. The two actions were severed for trial and a verdict in favor of the plaintiff for the sum of $66,000 was returned by the jury in the first action. The third-party action was then submitted to the same trial judge, but without a jury, upon the record of the plaintiff’s trial plus the testimony of one additional witness. The trial judge found for the third-party defendant and against the general contractor.

The general contractor appeals from the judgment on the verdict and the denial of the post-trial motions in the first cause (General Number 52,175). In the event the judgment in favor of the plaintiff in the first cause is upheld, the defendant appeals from the judgment of the trial judge in the second cause in favor of the third party defendant (General Number 52,290). We granted permission to consolidate the two appeals. No questions are raised on the pleadings.

The record reveals that the defendant contracted to build an addition to a synagogue at 3535 West Foster Avenue in Chicago. The contract read in part that:

[T]he general contractor shall provide all labor and material necessary to complete the construction of the building. . . .
To furnish and maintain all equipment, such as temporary stairs, ladders, ramps, scaffolds, hoists, runways, derricks, shoots, elevator, as necessary for the proper execution of the work of all contractors. . . .
The contractor shall take all necessary precautions for the safety of the employees on the work, and shall comply with all applicable provisions of the State, Federal, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the premises where the work is being performed. . . .
. . . shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public, and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, well holes. . . .

The general contractor retained the masonry, carpentry, and cement jobs and subcontracted all of the other work. Hersch Quality Roofing, Inc. (hereinafter referred to as Hersch) was employed by the general contractor as the roofing subcontractor.

On August 9, 1962, the subcontractor Hersch began work on the roof of the synagogue addition, thirteen days after anyone from the general contractor had been on the job site. That same day the injury that gives rise to the case at bar was sustained. The plaintiff, an employee of Hersch, jumped on top of some rolls of roofing paper which he and another roofer had placed on the materials hoist. The roofing foreman then raised the hoist. The rolls had been stacked on the platform of the hoist to a height of four feet. As the hoist ascended to the roof the hoist began to shake and the plaintiff lost his balance. He grabbed the cable of the hoist and his hand passed through the top cable pulley amputating four fingers.

Harold Schaefer, an employee of Hersch, testified that he and another employee loaded a truck with roofing material on the morning in question and arrived at the project before 8:00 a. m. He stated that he did not bring a hoist or a scaffold with him and he said that he did not see any stairways in or about the building. Schaefer also said that he did not bring any ladders of sufficient length to reach the roof of the building. He testified that Peter Passantino, his foreman, cranked up a small gasoline engine hoist which was on the premise and which was not locked. The hoist extended six feet above the roof of the addition. Both Schaefer and the foreman rode up to the roof. Schaefer swept the roof and then came back down on the hoist. He said he then helped the plaintiff stack rolls of roofing material on the hoist. The rolls were secured, he stated, by two pieces of wood used as wedges. Schaefer further testified that he began another task when his attention was drawn to the hoist because of an unusual noise. “It was bouncing up and down, chattering as it went up.” Schaefer said he saw the plaintiff squatting down a little while on top of the rolls. He then observed the plaintiff lose his balance when the hoist was fifteen to eighteen feet above the ground and grab the cable to steady himself, before he was injured.

Plaintiff Nicholas Pantaleo testified that when he came to the construction site on the morning of August 9, he saw someone riding to the roof on the materials hoist. He then rode up to the roof in a trial run with his foreman, Peter Passantino, operating the hoist. The plaintiff got off the hoist at roof level and changed into his work clothes. When the plaintiff and his foreman came down again, the plaintiff gathered some tools together and then began loading rolls of roofing material on the hoist with the help of Schaefer. After Schaefer had wedged the rolls the plaintiff climbed on top of the roofing material. The foreman Passantino operated the hoist. The plaintiff stated that when the hoist was halfway to the roof “it started to shake violently” and “I felt that I was going to lose my balance so I then turned instinctively and grabbed the cable.” Immediately thereafter the plaintiff’s glove got caught in the pulley and two fingers on his left hand were severed. In an apparent attempt to lower the hoist the roofing foreman operated the hoist in such a way as to cause the plaintiff’s hand to pass completely through the cable pulley and as a result two more fingers were severed.

We first consider the defendant general contractor’s appeal from the judgment in favor of the plaintiff Pantaleo. The defendant contends that (1) the verdict is not only against the manifest weight of the evidence, but has no probative evidence to support it and the trial court should have directed a verdict for the defendant; (2) it was prejudicial error to refuse defendant’s instruction embodying defendant’s theory of the case; and (3) the verdict is excessive and is the cumulative result of all the prejudicial errors committed and particularly of the prejudicial error committed in giving plaintiff’s instruction which permitted the jury to find loss of present and future profits as damages solely upon evidence of plaintiff’s checking account.

In support of the defendant’s first contention that the verdict was against the manifest weight of the evidence and that it was entitled to a directed verdict, the defendant argues that there is no evidence that the general contractor knew that anyone was using the materials hoist as a passenger elevator or that permission was granted for such a use.

A similar claim was made in Lawler v. Pepper Const. Co., 33 Ill App2d 188, 178 NE2d 687. In Lawler the defendant was a subcontractor engaged by the American Glass Company to remove sashes and molding from around store windows. There was evidence in the case that the defendant’s employees left a scaffold on the job site. When some metal workers employed by the American Glass Company came to the job they used the scaffolding and the plaintiff was injured. The defendant’s foreman testified that he did not see the metal workers use the scaffold in question and that in any event, the metal workers did not have permission to do so, especially in light of the fact that they had their own jack ladders and planks. The Appellate Court concluded that:

“the jury could have found that employees of American [the metal workers] had used the Pepper scaffold during the course of remodeling the windows, that Pepper had left its scaffold up on Friday knowing that the metal workers would be following it on the job and that this was equivalent to an invitation to them to continue using it.”

Lawler v. Pepper Const. Co., 33 Ill App2d 188, 193, 178 NE2d 687, 689.

We cannot discover any reason why the circumstances in the case at bar present any less of an invitation to the roofers to use the materials hoist than that which was extended to the metal workers in Lawler. In fact, the instant case presents more compelling reasons than Lawler to find that such an invitation was extended. The only way the roofers could reach the roof was by means of scaffold, hoist or ladder. There were no other means of access. However, despite this the defendant general contractor did not provide scaffolding or ladders. Only the general contractor’s materials hoist was found on the job site. Thus, applying the reasoning of Lawler to the case at bar, the jury could find that the defendant general contractor left the materials hoist on the job site knowing that the roofers would soon begin work and knowing that there were no ladders or scaffolds on the site and we hold, therefore, that this was equivalent to an invitation to the roofers to use the hoist to ascend to the roof.

The defendant also argues that it had no knowledge that anyone was using the materials hoist as a passenger elevator. We do not find this argument persuasive. As we stated in Dinschel v. United States Gypsum Co., 83 Ill App2d 466, 476, 228 NE2d 106, 112:

[a] 11 persons in “charge” of the work are liable not only when the dangerous conditions are known to them, but also when by the exercise of reasonable care the existence of such dangérous conditions could have been discovered and become known to them. . . . The Statute puts absolute and unconditional liability on the person or persons who have charge of the work wherein a scaffold or hoist is used.

The defendant maintains, however, that it was not “in charge” of the work and thus, not liable, since the evidence shows that none of its employees were on the premises on the day in question nor had they been for thirteen days prior to the occurrence. The defendant places much reliance on Vykruta v. Thomas Hoist Co., 75 Ill App2d 291, 221 NE2d 99. In Vykruta the defendant had rented a hoist to the mason contractor. The defendant was not a contractor and did not participate in the erection or construction of the building. The plaintiff rode on the hoist and was injured. The Court held that the mere furnishing of equipment does not render one in charge of the construction.

We do not feel that Vykruta is applicable to the facts of the case at bar. In the instant case the defendant was the general contractor employed by the owner to construct the addition to the synagogue. Under the contract the defendant was required to furnish hoists, take all precautions for the safety of the employees at the job site, and to erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public. The general contractor agreed to supervise all of the work. The defendant seems to be contending that because it was not “supervising” the work on the day of the accident or for thirteen days prior to the accident it should not be held liable. However, it appears clear to us that it was not the legislative intent that those retaining the right to supervise or control the work should be freed from duty by doing nothing. Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247. If this were allowed the very purpose of the Structural Work Act would be defeated. Louis v. Barenfanger, 39 Ill2d 445, 236 NE2d 724. At the very least, there is sufficient evidence from which the jury could reasonably conclude that the defendant had charge of the work within the meaning of the statute. It was a disputed question of fact and it was within the province of the jury to determine this issue. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785.

The defendant also argues that the materials hoist was not designed to be a passenger elevator and that the roofing contractor had no right to allow the plaintiff to use it as such. The Appellate Court was faced with approximately the same contention in Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 217 NE2d 552. There an electrician stood on an unsecured plank fourteen feet above the basement floor in order to take measurements for an electrical wire conduit pipe. As the plaintiff turned to leave, the board slipped and he fell to the ground. Apparently, there was no practical way for plaintiff to perform his task other than to stand on the plank covering the concrete form. The defendant contended that the plank from which plaintiff fell was not a scaffold within the meaning of the Structural Work Act because it was not part of a platform, but merely a covering for a concrete form. In reversing the summary judgment in favor of the defendant we stated that the “plaintiff had to stand on something, and the record indicates that the 2x6 plank was the only platform available to him.” Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 309, 217 NE2d 552, 555.

In the instant case, the plaintiff had to use something to reach the roof of the building. There were no ladders, stairways or other means to ascend to the roof. Like the 2x6 plank in the Frick case, the materials hoist was the only means available to the plaintiff to reach his work area. Thus, necessity—of which the defendant should have been aware—forced the plaintiff to utilize the materials hoist and therefore, the hoist was brought within the scope of the Structural Work Act.

The defendant general contractor also maintains in support of his first contention that the verdict was against the manifest weight of the evidence and that it was entitled to a directed verdict in that there is no salient evidence that the materials hoist was defective. This contention was also made by the defendant in Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270. There the plaintiff was injured when he fell upon a raised bucket of an excavating machine. Rejecting the contention, the Court said:

It is also true there was no evidence of any defect or damage to the shovel itself as a shovel or a loader before or after the accident. Those and other related factual matters were, however, primarily, problems for the jury in determining if this instrumentality so used here as a scaffold, or hoist, or support, or mechanical contrivance, was furnished in a safe, suitable, and proper manner for that purpose and gave proper and adequate protection to the plaintiff.

Oldham v. Kubinski, 37 Ill App2d 65, 87, 185 NE2d 270, 279-80.

From the evidence in the case at bar the jury could have found that the hoist was unsafe because it had no guard over the pulley and no sign limiting the use of the hoist to materials only and prohibiting persons from riding on it. Furthermore, the hoist was so improperly operated that the platform shook as it ascended causing injuries to the plaintiff. The safety of a scaffold or hoist was a question of fact for the jury. Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270.

In our view we hold that the defendant was not entitled to a directed verdict in its favor and that the verdict and judgment entered thereon was not against the manifest weight of the evidence.

The defendant general contractor, in its second contention, argues that it was error for the trial court to refuse to give the following instruction tendered by the defendant:

The plaintiff’s basis of claimed damages against the defendants is the Structural Work Act. Before you find that said Act is applicable to the facts and circumstances in evidence you must find that the hoist in question was either expressly or impliedly supplied or provided for use by the plaintiff or his employer, Hersch Quality Roofing, Inc., a corporation.

Initially, we agree with defendant that a party to a lawsuit has the right to have the jury instructed upon his theory of the case when there are pleadings and evidence which support his theory. This peremptory instruction, however, incorrectly states the law, it is argumentative, slanted and does not include all the proper facts. Therefore, we hold that the instruction was properly refused.

Finally, the defendant contends that the verdict is excessive and is the cumulative result of prejudicial errors, particularly the error committed by giving the plaintiffs IPI damage instruction 30.01. This instruction is objected to because it included the element of profit. While the instruction may not be tailor made for the plaintiff in the instant case, it does adequately contain most of the elements of damage which would reasonably and fairly compensate the plaintiff if the jury decided for him. We hold that the jury was not misled by the objectionable part of the instruction.

The defendant also objects to the size of the verdict. The verdict in favor of the plaintiff was in the sum of $66,000. Plaintiff, who was 27 years of age, has been severely and permanently injured. We cannot say after reviewing the evidence (which we need not detail) that the judgment was palpably excessive as a matter of law.

We next consider the defendant general contractor’s appeal from the judgment rendered in the third-party action (General Number 52,290). The trial court found that Hersch, the roofing subcontractor and third-party defendant, breached no implied obligation of its subcontract and that the general contractor, third-party plaintiff, was guilty of active negligence.

There is no right to indemnity, express or implied, for one’s own negligence in the absence of an express provision clearly requiring it. Westinghouse Elec. Elevator Co. v. La Salle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604. The evidence, which we have already discussed, clearly shows, in the case at bar, that the general contractor was exposed to liability not by the acts of another, but by its own acts and obligations. We find that there is ample evidence to support the judgment and, therefore, it must be affirmed.

The judgments will, therefore, be affirmed.

Affirmed.

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

       Section 1 reads in part:
      [A] 11 scaffolds, hoists . . . erected or constructed . . . for the use in the erection ... of any . . . building . . . shall be erected and constructed, in a safe, suitable and proper manner, and shall be erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person . . . employed or engaged thereon. ...

        Section 9 reads in part:
      Any . . . contractor . . . having charge of the erection, construction ... of any building . . . shall comply with all the terms thereof. . . . For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions. . . .

       The defendant general contractor has put great emphasis on the fact that the plaintiff was standing upon four feet of roofing paper rolls. This the defendant maintains made the plaintiff the equivalent of “nine to ten feet tall and even the design of an elevator would not have to anticipate people that tall.” This claim sounds as though it is a claim of contributory negligence. Doctrines of assumed risk and contributory negligence by an employee have no application to the Structural Work Act (Ill Rev Stats 1967, c 48, par 60 et seq.). Thomas v. Carroll Const. Co., 14 Ill App2d 205, 144 NE2d 461.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. McClellan Hudson and Claude Sample, Defendants-Appellants.
    Gen. Nos. 52,207, 52,208.
    First District, First Division.
    February 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Kátz and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants, McClellan Hudson and Claude Sample, were indicted for the unlawful sale of narcotics (Ill Rev Stats 1967, c 38, § 22-3). The defendants pleaded not guilty, waived a jury trial and following a bench trial, were found guilty of the offense charged. McClellan Hudson and Claude Sample were then sentenced to terms of 10 to 15 years and 10 to 12 years respectively, to be served in the Illinois State Penitentiary.

On appeal, the defendants contend (1) that the court erroneously restricted the cross-examination of the prosecution’s narcotics informer; (2) that there was insufficient evidence to prove the defendants guilty beyond a reasonable doubt of the sale of narcotics; and (3) that it was reversible error for the State to introduce testimony of a separate and distinct offense of the defendant McClellan Hudson.

The record reveals that on August 23, 1966, Robert Bailey, an admitted narcotics addict, was thoroughly searched by two police officers in anticipation of a controlled sale of narcotics. The officers found that Bailey had no narcotics or money in his possession. Bailey was then given $14, consisting of a $10 bill, three $1 bills and four quarters. The money was marked and recorded. After the money had been recorded the police officers drove Robert Bailey to St. Lawrence and 47th Street. Bailey got out of the car on the north side of 47th Street and while under police surveillance met Claude Sample and Harvey Loveless at the corner. The trio were observed talking to each other for a short period of time. Detective Thomas King, who was assigned to the Narcotics Unit Vice Control Division and was one of the officers in the car, testified that Loveless and Sample began walking south on St. Lawrence towards 48th Street with Bailey following a short distance behind. The police drove their car to the middle of the block (between 47th and 48th Streets) and Detective King got out. He moved towards the corner and observed that Sample and Loveless had disappeared leaving Bailey alone on the corner. Sample and Loveless were out of Detective King’s sight for about two minutes before they reappeared from an alley and once again began talking to Bailey. Shortly thereafter they walked back to the alley and were observed by King talking to McClellan Hudson. Hudson than walked away—north on St. Lawrence. Sample and Loveless walked over to Bailey, handed him a small packet and then walked east on 48th Street. After Sample and Loveless were apprehended, a field test was administered by the police officers and it was found that the package Bailey had been given contained heroin. Hudson was later apprehended and the $10 bill, three $1 bills and three quarters, all marked monies, were found on his person.

Robert Bailey, the police informer, testified that he and his clothes were thoroughly searched by the police just prior to the time he was given the marked and recorded money. He said that the police then drove him to the corner of 47th Street and St. Lawrence where he met Sample and Loveless. Bailey told the court that he had known Sample before the occurrence in question. He then stated that he asked Sample and Loveless if “anyone . . . [had] any stuff” and that Sample replied that there was some in the area. Bailey was asked what he wanted and he was told that if he paid $15 that he would receive a “sixteenth.” Thereupon he gave Sample the prerecorded money and walked behind the two men as instructed until the two of them went into a gangway of an alley at 48th Street and St. Lawrence. There they met Hudson. Bailey testified that he could not hear their conversation, but he testified that he saw Sample pass the money in his hand to Hudson. Hudson then left and when he returned a short time later he put something in Sample’s hand. Sample walked over to Bailey, handed him the package and left. Bailey said he gave the package to Officer King.

On cross-examination Bailey testified that he was a narcotics addict on the day the controlled sale took place and that he had used drugs four days before the trial. He said that he was promised no reward for working with the police, was never given money by the police except for food, and had never been convicted of the unlawful sale of narcotics.

The only other evidence offered was a stipulation between the parties that if Charles Vondrath, a chemist at the Chicago Crime Laboratory, was called as a witness, he would testify that the white powder in the package received into evidence was diacetyl morphine hydrochloride, commonly referred to as heroin.

We first consider the contention that the trial court unduly restricted the cross-examination of the prosecution’s informer witness. We initially agree with the defendants that on cross-examination they should be allowed to develop all circumstances within the knowledge of the witness which will explain, qualify, discredit or destroy the witness’s testimony. People v. Welch, 22 Ill2d 558, 177 NE2d 160, and which will shed light on the witness’s motive, bias, prejudice, or interest as affecting his credibility even though such development might go beyond the subject matter of the direct examination. People v. Lohman, 18 Ill2d 506, 150 NE2d 116. This rule, we believe, is especially appropriate when the witness is a narcotics addict.

Turning to the record we find that the defendants were denied the opportunity to question Bailey about his source of drugs. The defendants were also not permitted to inquire into how much the witness’s “habit” cost per day or into how large a dose of drugs the witness took four days before the trial. The defendants contend that once it is established that an informer is an active narcotics addict it becomes extremely important to ascertain his source of supply. “If the police had paid Bailey in drugs” the defendants assert “he may have been motivated to fabricate the involvement of the defendants to obtain his necessary narcotics.” However, the defense counsel was allowed to bring out in his cross-examination of Bailey that after the controlled sale of narcotics in the case at bar, the witness was incarcerated in the County Jail for possession of narcotics; that Bailey was a narcotics addict and that he had used narcotics four days before the trial. The defense counsel was also permitted to examine the arm of the witness, to inquire how long the witness had been an informer, to ask where the witness lived and who he lived with, to discover where the witness worked, and to determine in how many cases the witness worked with the police. We must note too, that the case was tried before the court without a jury.

The very purpose of the extended cross-examination of Bailey was to make the court aware of the possible motive the informer had to testify. We are satisfied that the defendants were given ample opportunity to elicit adequate information from the witness for that purpose. Furthermore, the limit to which cross-examination should be permitted rests soundly in the discretion of the trial judge and we will not interfere with the exercise of that discretion in the absence of clear proof of its abuse. People v. Caldwell, 62 Ill App2d 279, 210 NE2d 556. In light of the facts of the instant case, we cannot say that there was a clear abuse of discretion in the restrictions placed on the cross-examination of the informer and we, therefore, hold that the defendants were not prejudiced in this regard.

The defendants’ second contention involves whether the State presented a sufficient amount of evidence to prove them guilty beyond a reasonable doubt of the illegal sale of narcotics. The defendants urge that a narcotic addict informer is completely untrustworthy and that the uncorroborated testimony of such a witness is insufficient to sustain a conviction.

While it is true that habitual users of opium or other narcotics often become notorious liars and the chronic morphinomanic is often a confirmed liar, People v. Crump, 5 Ill2d 251, 125 NE2d 615, the fact that a witness is a narcotics addict bears only upon his credibility. It does not follow that his testimony must necessarily be disbelieved, especially when it is corroborated by other witnesses. People v. Smith, 40 Ill2d 501, 241 NE2d 185.

The defendants argue, however, that there was absolutely no corroboration of the essential elements of the sale of narcotics because the alleged transaction occurred outside the observation of the police. We cannot agree with the defendants that Bailey’s testimony was not corroborated.

Approximately the same claim was made by the defendant in People v. Hill, 83 Ill App2d 116, 227 NE2d 117. In that case an informer, who was also a narcotics addict, participated in a controlled sale of heroin. The actual transaction took place in the entrance of a hotel and out of the sight of the police. The Appellate Court in affirming the defendant’s conviction noted that “ [c] onvictions have been affirmed in many cases where the exchange was not witnessed if attendant circumstances lent credence to the informer’s testimony.” People v. Hill, 83 Ill App2d 116, 122, 227 NE2d 117, 120.

While we agree with the defendants that the testimony of a narcotics addict should be closely scrutinized, the test which must be employed is whether the addict’s testimony is credible under the surrounding circumstances. People v. Carter, 69 Ill App2d 448, 217 NE2d 413. Here the circumstances support the informer’s story. Bailey was seen speaking to Sample on more than one occasion. Sample was observed leaving Bailey and going into an alleyway on two occasions. On his return Hudson came out of the alley with Sample and then walked away. Sample handed something to Bailey which turned out to be a package containing heroin. Bailey had been seen handing something to Sample and later the prerecorded money was found on Hudson.

The trial court saw the informer, heard his testimony and found it credible. This court will not substitute its judgment on the matter of the credibility of witnesses and the weight to be given their testimony where the trier of fact saw and heard their testimony, unless we can say that the proof was so unsatisfactory as to justify a reasonable doubt as to the defendants’ guilt. People v. Romero, 54 Ill App2d 184, 203 NE2d 635. We conclude that the testimony of the informer is corroborated by evidence and the surrounding circumstances in the record and that the testimony was sufficient to establish the guilt of both defendants beyond a reasonable doubt.

The defendants next contend that it was reversible error to introduce testimony of a separate and distinct offense of the defendant, McClellan Hudson. On direct examination of Bailey, and over the objection of defendants, the State brought out that on November 13, 1966, while the instant case was awaiting trial, Hudson attacked Bailey while they were incarcerated, and attempted to intimidate him.

It is the general rule that admission of a separate and distinct crime in support of the offense charged is normally inadmissible and has been held to constitute reversible error. People v. Gleason, 36 Ill App 2d 15, 183 NE2d 523. However, under Illinois law if the evidence is connected with the crime the defendant is charged with, and is offered to prove design, motive or knowledge, it may be admissible. As stated in People v. Gambony, 402 Ill 74, 80, 83 NE2d 321, 325, “In a criminal prosecution any attempted intimidation of a witness is properly attributable to a consciousness of guilt, and testimony relating thereto is relevant and admissible in evidence.” We find the defendants’ third contention to be without merit.

Accordingly, the judgments and convictions of the defendants are affirmed.

Judgments affirmed.

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