text:
    People of the State of Illinois, Plaintiff-Appellee, v. Artie Lee Bailey (Impleaded), Defendant-Appellant.
    Gen. No. 52,626.
    First District, First Division.
    June 23, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum, and James B. Haddad, Assistant State’s Attorneys, of counsel), for ap-pellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant Artie Lee Bailey, Harold Johnson and James Smith were found guilty of rape and aggravated battery. Defendant Bailey was sentenced to the penitentiary for a term of six to ten years. Defendant contends that he was not proved guilty beyond a reasonable doubt. The other two defendants are not parties to this appeal.

At about 7:30 p. m. on July 23, 1966, the prosecutrix, a 16-year-old high school junior, finished work at Mt. Sinai Hospital and met a friend, Ida Tate. At about 9:00 p. m. they encountered the three defendants, with whom they were acquainted. Later, at about 11:00 p. m., as the two girls were walking down 18th Street, defendant Bailey ran out of an alley and placed his arm around the neck of the prosecutrix and held a knife at her throat. At his direction, Ida Tate left, and the prosecutrix and Bailey proceeded to a building in the 1600 block of Hamlin. On the way Bailey and the prosecutrix were joined by defendant Smith. As Bailey and Smith were trying to enter a vacant apartment, she broke away and fled down the steps. Bailey caught her at the bottom of the stairs, ripping her blouse. Bailey punched her in the face, breaking her jaw in two places. She was dazed, partially unconscious and fell down. She was knocked out for about ten minutes and was bleeding from the mouth. When she came to, Bailey was slapping her face because of Smith’s insistence that he would not have intercourse with a dead woman. About this time Johnson joined them. Bailey took off her underwear, and the three defendants had intercourse with her. Bailey and Johnson then left. She could not scream because her mouth was full of blood, and she could not get up or fight them off because she felt dazed. Smith again had intercourse with the prose-cutrix, and she then asked him to let her go because she wanted to go to the hospital, and he gave her his shirt to replace her torn blouse. During the trial she identified a shirt stained with blood as the shirt Smith gave her.

The prosecutrix then went to Ida Tate’s home to ask if Miss Tate’s father would drive her home. Mr. Tate could not assist her because his car needed repairs. Finally a boy named Ronald helped her home.

When the prosecutrix arrived home she told her mother that “a boy had hit me and that I had been raped.” This was the first time she had told anyone that she had been raped, and it was about fifteen minutes after the occurrence. Her brother took her to the Bethany Hospital, and they arrived there at about 12:30. The police were called and they took her back to the scene of the occurrence and then took her to the County Hospital. Her jaw was X rayed and wired, and she had the wires in her mouth for about eight weeks.

Defendant Bailey was brought in for identification while she was getting her mouth wired at the County Hospital. She did not say anything “because I had about thirteen or fourteen shots in my mouth.” She pointed him out. Subsequent to the occurrence and before the trial, the prosecutrix received four threatening letters from defendants Bailey and Johnson.

On cross-examination the prosecutrix said she did not kiss Bailey when she met him, nor Johnson. She was not drinking that night. The weather was very warm, and people were sitting on their porches. When Bailey had the knife on her neck she thought he was playing. She and Bailey walked about one block, and there were a lot of people on the street. When she went to Ida’s house she did not tell Ida nor Ida’s father what happened, nor did she tell the boy who took her home.

Two police officers testified for the State. Officer Daniel C. Bronke testified that he saw the prosecutrix at the Bethany Hospital at about 1:30 in the morning. She was there with her brother. Her jaw was shattered, and she was bleeding from the mouth and was very hard to understand. She told them what had happened and named her assailants. She went with the police officers to a building in the 1600 block of Hamlin, and they went up the back stairs to the first floor. A door had been forced open in a vacant apartment. The prosecutrix pointed out the comer of the room where she had been laying. The officer saw large bloodstains on the floor that were fresh and still wet. There were no liquor bottles of any kind in the room.

Officer James Griffin testified that he was assigned to the Homicide-Sex Unit. He saw the prosecutrix about 3:50 in the morning. He spent about twenty minutes with her and did not notice anything unusual or odors. She seemed sober and in great pain. Her face was swollen, and there was blood around her mouth. She named her three assailants. He arrested Bailey on July 24 at about 8:00 a. m. and Smith and Johnson on July 30.

The defense witnesses included Ida Tate. She and the prosecutrix were friends and had been together on July 23, 1966. During the evening they had a half-pint bottle of Seven Crown, and they each drank half of it. She saw the prosecutrix kiss Johnson and Bailey. At about eleven o’clock she and the prosecutrix were walking down Hamlin, when they met Bailey. He asked the prosecu-trix for his knife, and she gave it to him. “He put his arm around her neck, and they were walking back towards Hamlin. Neither one of them seemed upset or anything, because she didn’t say he was doing anything to her. They were walking along, just like they was earlier.” Later, at the Tate home, she saw the prosecutrix crying, and she went home.

Defense witness Willie Bailey testified that defendant Bailey was his brother, and that he had spent the evening in a parked car with Willie and some other fellows. At about eleven o’clock defendant Bailey left the car to find the prosecutrix. He did not find her and shortly returned to the car where he stayed until 11:30. Willie stated he had seen the prosecutrix at about 6:00 p. m. that evening. He smelled alcohol on her breath, and she was leaning up against a wall.

The three defendants testified and each denied having sexual intercourse with the prosecutrix. They saw her during the evening, and Johnson said “she acted like she was high, because she was hollering up and down the street and laughing.” Smith saw defendant Bailey on Hamlin with the prosecutrix, but he did not see Bailey with a knife. Smith was shown the shirt which the prosecutrix said he gave her, and he denied that it was his. Bailey and Smith both denied striking the prosecu-trix.

In rebuttal, Officer Bronke testified that when he saw the prosecutrix at 1:30 on the morning of July 24, and while she was in the squad car with him, he noticed no odor of alcohol, and she showed no signs of intoxication and her brother helped her walk.

Defendant contends that the testimony of the prosecu-trix was not sufficiently clear and convincing to lead to an abiding conviction of guilt because there was no adequate corroboration, no medical report, no resistance nor outcry, and the threatening letters and the torn blouse belonging to the prosecutrix were never produced.

Defendant also points out that after the alleged rape, the prosecutrix said nothing about the occurrence to Ida, Ida’s father or to Ronald, the boy who took her home. When she got home and told her mother and brother about it, neither called the police, and it was a nurse at the Bethany Hospital who called the police. Defendant notes that when the police took the prosecutrix to the apartment, she did not go into the room with them; also there was no evidence that there was any physical examination of the vagina at either hospital, which might have been corroboration of forcible intercourse.

Defendant’s authorities include People v. White, 26 Ill 2d 199, 202, 186 NE2d 351 (1962), where the Supreme Court held that the evidence of the prosecutrix was not clear and convincing, and in the absence of corroboration reversed a rape conviction. There the court said:

“We have held that the testimony of a prosecutrix uncorroborated by other witnesses, may be sufficient to justify a conviction if such testimony is clear and convincing. ... If the testimony is not clear and convincing, then corroborative evidence must be produced to support her testimony as against the denial of the defendant. ... In People v. Schiro, 361 Ill 117, we said (p 120) : “We have repeatedly held that where a conviction of rape, statutory or otherwise, depends upon the testimony of the prosecuting witness and the defendant denies the charge, the evidence of the prosecutrix should be corroborated by some other evidence, fact or circumstance in the case.’
“In People v. Fitzgibbons, 343 Ill 69, we pointed out that in a prosecution for rape, the testimony of the prosecutrix must be scrutinized with caution, and where evidence is offered substantially impeaching the truth of her statements and the defendant denies the crime, her evidence should be corroborated.”

Defendant also asserts that lack of medical testimony requires reversal here and cites People v. DeFrates, 33 Ill2d 190, 195, 196, 210 NE2d 467 (1965), where a rape conviction was reversed, and the court said:

“Voluntary submission by the female, while she has the power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of forcible rape.
“Considering the record as a whole, we are constrained to say that the testimony of the prosecu-trix is not sufficiently convincing to lead to an abiding conviction of guilt, and was such that it required corroboration by some other testimony, fact or circumstance. . . . Again, it appears that the police sent the prosecutrix to a hospital for an examination, but no medical testimony was introduced to show its results.”

Also, People v. Stagg, 29 Ill2d 415, 194 NE2d 342 (1963), where it is said (p 421):

“. . . where, as here, the testimony of the prosecu-trix alone is relied upon for a conviction, that testimony must be clear and convincing, and if it has been impeached, is inherently improbable, or is such that reasonable minds could not believe it, the conviction must be reversed. . . .”

And at p 422:

“Moreover, despite the fact that she testified as to a vicious attack . . . there was no evidence in the record of any medical examination or treatment of the complainant.”

Defendant further argues that “it cannot be said that in the absence of medical proof; in the absence of the letters; in the absence of any resistance or outcry at a time when this was clearly possible; that the mere fact that she told her brother and mother about it and later in the hospital told the police can be regarded as sufficient corroboration of such a serious charge as rape. Neither her mother or brother called the police,” and neither of them testified. On this point defendant cites People v. Scott, 407 Ill 301, 95 NE2d 315 (1950), where the court said (p 306):

“Neither the taxicab driver, who drove her home, nor the brother or mother of the prosecutrix, to whom she claims to have first made the complaint, testified at the trial. The failure of these witnesses to testify tends to lessen the spontaneous character of the complaint made to the officers and likewise weakens the corroborative quality of such evidence.”

Defendant also contends that the testimony of the pros-ecutrix was impeached in a number of important respects, and as the defendant denied the charge of rape, the testimony of the prosecutrix cannot be regarded as clear and convincing and corroboration was essential. In support of this point defendant cites (1) the testimony of Ida Tate, in which she testified to a different state of facts than did the prosecutrix; (2) the testimony of the prosecutrix that she did not consume any liquor was false because of the testimony of Ida as to both of them drinking during the course of the evening and the further testimony of Willie Bailey and Johnson; and (3) the pros-ecutrix admitted that she had not given her correct age.

The State asserts that the testimony of the prosecutrix was corroborated (1) by Ida Tate confirming that defendant had a knife as he led the prosecutrix away with his arm about her; (2) Officer Bronke testified that the apartment to which the prosecutrix led them matched the description she had given. The door had been forced open, and there were fresh wet bloodstains on the floor of the apartment; and (3) although no member of the family reported or testified as to her complaint of rape, Officer Bronke said that he was investigating the rape complaint at about 1:30 a. m. on the night in question.

Initially, and after examining this record in detail, we think the alleged impeachment or contradiction of the testimony of the prosecutrix was not on substantial or material matters. As to her failure to tell Ida Tate, her father or the young man who assisted her home, we think there is merit to the State’s argument that a girl who had just been raped four times by three boys might have been reluctant to proclaim her story. She immediately sought the assistance of her family and made a complaint to them within fifteen minutes after the occurrence. The alleged inconsistencies in her testimony as to her age and drinking liquor are not material here, where the charge is forcible rape.

The question of the credibility of the witnesses was for the trial court’s determination. In People v. Henson, 29 Ill2d 210, 193 NE2d 777 (1963), it is said (p 213):

“We have repeatedly held that where a case is tried without a jury the determination of the credibility of the witnesses and the weight to be given to their testimony is for the trial judge, and this court will not substitute its judgment on such matters for that of the trial judge, who saw and heard the witnesses.”

We believe the pronouncements made in People v. Mack, 25 Ill2d 416, 420, 185 NE2d 154 (1962), apply here:

“We do not, however, regard these cases as establishing an inflexible rule of law requiring in all cases that the testimony of the complaining witness in a rape case must be corroborated. Indeed, we have frequently stated that corroboration is not necessary where the testimony of the complaining witness is clear and convincing .... The unvarying rule of law is that in a rape case, as in any criminal case, the evidence must be sufficient to establish the guilt of the defendant beyond a reasonable doubt. Where we have reversed eases because of failure to corroborate the testimony of the complaining witness, we have done so not because of any fixed rule requiring corroboration but because, upon the state of the record in the particular case, the evidence left a reasonable doubt as to the guilt of the defendant.”

We conclude that the testimony of the prosecutrix was clear and convincing and sufficient to support defendant’s conviction of rape beyond a reasonable doubt. There appears to be no reason in this record for regarding the testimony of the prosecutrix as unworthy of belief. Medical evidence is not required to prove a rape, and this is true even when it is established that the victim went to a hospital after the rape occurred. (People v. Boney, 38 Ill2d 23, 24, 230 NE2d 167 (1967).) Moreover, the testimony of the police officers as to the battered condition of the prosecutrix shortly after the alleged rape, and what they saw in the vacant apartment to which she led them, was ample evidence to corroborate her testimony.

Next considered is defendant’s contention that his conviction for aggravated battery was not proved beyond a reasonable doubt and cannot stand. We find no merit in this contention, and discussion is not required in view of our conclusions in affirming defendant’s conviction of rape. The record indicates that defendant was sentenced on the rape charge only, the greater offense. Therefore, we find no reason to disturb the judgment of the trial court that defendant was guilty of rape and aggravated battery beyond a reasonable doubt.

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

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    John Kordik, Plaintiff-Appellee, v. Lois Kenar, Defendant-Appellant.
    Gen. No. 53,152.
    First District, First Division.
    June 23, 1969.
    Rehearing denied July 28, 1969.

      Frank Glazer, of Chicago (William T. Cormack, of counsel), for appellant.
    Alan E. Morrill and Robert A. Sprecher, of Chicago (Morrill, Koutsky, Klomann & Chuhak, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

John Kordik, plaintiff, brought this action against Lois Kenar, defendant, to recover damages for personal injuries. The matter was tried before a jury and at the conclusion of the evidence the court directed a verdict in favor of the plaintiff on the issue of liability. The jury assessed the damages in the sum of $4,500 and the defendant appeals from the judgment rendered on the verdict for that sum.

Plaintiff and Jerome Dolski, a witness for the plaintiff, were the only people to testify about the occurrence that gave rise to the plaintiff’s injuries. John Kordik testified that on December 31, 1961, about noon, he was on his way to church with his six-year-old son. He parked his car against the curb on Austin Avenue in Chicago. Snow was piled up along the curb, forcing the plaintiff and his son to exit from the left side of the car, the side closest to the traffic. Plaintiff testified that when he got out of the car he did not see any cars coming. He locked his car and proceeded to walk on the street in a southerly direction in the southbound traffic lane of Austin Avenue. As he walked along, his body was about six inches from the left side of the cars parked along the street. The plaintiff stated that his son walked in front of him and when his son turned into the driveway, the plaintiff was struck by a car. He said he did not hear a horn or a warning of any kind.

On cross-examination he was asked:

Q. Now, you looked and went past your car to the front of your car, is that right?
A. Yes.
Q. Now, at that time did you look to see if there was any traffic coming?
A. No, I didn’t. I was worried about getting in because of traffic going by there.

The plaintiff further testified that he was not in a crosswalk, that he was walking in the southbound lane of traffic with his back towards the approaching traffic and that he never saw the car that struck him.

Jerome Dolski testified that he was driving slowly north on Austin Avenue when he saw plaintiff get out of his car and walk south with a boy in front of him. “As he went up to the driveway to follow his son, he turned his back, he had his hand on the car as if he was leaning — and this ’59 or ’60 white Chevrolet convertible was going south. And it appeared to me that it nipped him on the side of his hip, you know, and I seen the man fall down.” The witness further testified that somebody brought the driver of the white Chevrolet convertible back to the scene of the accident and “she [the driver] said I didn’t hit anybody.’ ” On cross-examination he testified that the plaintiff was in the middle of the block, that he was walking with his back to the traffic and that he never saw the plaintiff turn around and look at the cars coming south on Austin Avenue.

The defendant initially contends that the trial court erred in denying defendant’s motion for a directed verdict and judgment notwithstanding the verdict. It is argued that the record is devoid of any evidence which would establish that Lois Kenar, the defendant, was identified as the driver of the vehicle that struck the plaintiff.

It is true that neither the plaintiff “nor the witness Dolski identified or named the driver of the car involved in the occurrence.” However, in the defendant’s answer to paragraphs 1 and 2 of the complaint it was admitted that at the time of the occurrence the defendant owned or possessed a 1960 Chevrolet convertible which defendant was driving in a southerly direction, along and upon said Austin Avenue, toward, near, and at the place where plaintiff was walking. Further, in paragraph three of the complaint it was averred that it was the duty of defendant to drive her automobile with reasonable care and caution so as not to run into or strike persons lawfully present on said Austin Avenue, including plaintiff. In her answer to paragraph three of the complaint the defendant denied she owed such a duty and averred that she was under a duty to operate her vehicle as a reasonably prudent person would operate a vehicle under the same or similar circumstances. In paragraph four of the complaint it was alleged that at the time of the occurrence plaintiff was in the exercise of due care and caution. This was denied in defendant’s answer.

Paragraph five of the plaintiff’s complaint alleged that while plaintiff was walking the “defendant, disregarding her duty aforesaid, negligently drove her automobile as hereafter specified, so that as a direct and proximate result thereof, it ran violently against and struck plaintiff, thereby knocking plaintiff down to and upon, and dragging him along said avenue, and greatly injuring plaintiff as hereinafter alleged.” The answer merely recited that the defendant “denies every allegation of paragraph 5.” In paragraph six of the complaint numerous acts of negligence were charged against the defendant which she denied in her answer.

As a further defense the defendant averred that she was not guilty of any careless, negligent or unlawful conduct at the time, date and place narrated in the complaint. She averred also that the injury of the plaintiff was the direct and proximate result of his own careless and negligent conduct by reason of one or more of the enumerated acts or omissions which included, “In that the plaintiff, John Kordik, carelessly and negligently failed to keep a proper lookout for vehicles moving in the roadway, including that of the defendant.”

We have carefully examined the pleadings and the evidence to determine whether the defendant was identified as the driver of the vehicle which struck the plaintiff. Dolski testified that the automobile that struck plaintiff was a 1959 or 1960 Chevrolet convertible. By her answer the defendant admitted that at the time and place of the occurrence she owned or possessed a 1960 Chevrolet convertible “which automobile defendant was driving in a southerly direction, along and upon Austin Avenue, toward, near, and at the place where plaintiff was walking as aforesaid.” She denied that she was guilty of any careless, negligent or unlawful conduct as charged and that any injury the plaintiff may have sustained was due and is a proximate result of his own careless and negligent conduct by reason of his walking on the roadway without facing oncoming traffic in violation of specified City ordinances.

Section 40 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 40) provides that the answer must contain an explicit denial of each allegation to which it relates. This section also provides that every allegation not explicitly denied is admitted unless the defendant’s pleading states that he has no knowledge thereof. In our opinion, if the defendant in the case at bar had affirmatively sought to refute the allegation that her car struck the plaintiff, then under the circumstances shown by the record she should have definitely and not evasively made this an issue in her answer. We hold under the circumstances revealed by the record that the defendant admitted being the driver of the car that struck the plaintiff.

The defendant also maintains that the trial court erred in denying defendant’s motions for a directed verdict and judgment notwithstanding the verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law. It is defendant’s contention that the plaintiff, by walking along Austin Avenue in a southerly direction in the southbound lane of traffic with his back toward the approaching traffic, violated the purpose of a state statute, Ill Rev Stats 1961, c 95½, par 175, and an ordinance of the City of Chicago, Chicago Municipal Code, c 27, § 286, and thus, is guilty of contributory negligence as a matter of law. The defendant cites Janovicz v. Schiesher, 350 Ill App 499, 113 NE2d 77, in support of her contention. A careful reading of the Janovicz case reveals, however, that the Appellate Court merely stated that the purpose of the above-mentioned statute is to require pedestrians on a highway, while walking, to keep to the left of the paved portion, facing approaching traffic. The Court did not state that a violation of the statute would render a plaintiff guilty of contributory negligence as a matter of law, nor did the Court so hold. After examining the authorities cited by the plaintiff and the defendant on this point, we conclude that the opposite of the defendant’s contention is actually the law in Illinois. (Blumb v. Getz, 366 Ill 273, 8 NE2d 620; Rowley v. Rust, 304 Ill App 364, 26 NE2d 520), and that one who violates the above statute is not guilty of contributory negligence as a matter of law. We also find that the defendant was not entitled to a directed verdict or a judgment notwithstanding the verdict under Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, in that we believe a verdict in favor of the plaintiff could stand when viewing the evidence most favorably to the plaintiff.

We turn now to the question of whether the court correctly directed a verdict in favor of the plaintiff on the issue of liability. The defendant urges that a fact question exists in regard to plaintiff’s contributory negligence which warrants that the issue be presented to the jury. We are in accord.

At the close of plaintiff’s evidence the defense counsel moved for a directed verdict. This was denied. The record reveals that the court on its own motion directed a verdict of liability and submitted to the jury the question of damages only. It was error to do so and we hold that the question of plaintiff’s due care in this case was clearly a question of fact to be presented to the jury. Jines v. Greyhound Corp., 33 Ill2d 83, 210 NE2d 562.

The plaintiff states in his brief that by virtue of the pleadings and the evidence, plaintiff established a prima facie case. Since the defendant introduced no evidence, the plaintiff maintains he is entitled to a directed verdict as to liability. No ease has been cited to support this theory and we hold that it is not and never has been the law.

The judgment of the Circuit Court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

ADESKO, P. J. and MURPHY, J„ concur.


text:
    Guaranty Bank and Trust Company as Trustee Under Trust No. 10806, Cecil Mimms and Mildred Mimms, His Wife, Louis E. Robertson and Theresa Robertson, His Wife, and South Chicago Savings Bank as Trustee Under Trust No. 11-885, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 53,207.
    First District, First Division.
    June 23, 1969.

      Leonard Bosgraf, of Chicago, for appellants.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiffs instituted this declaratory judgment action challenging the constitutionality of the Zoning Ordinance of the City of Chicago, as it applies to their subject property, and requesting that the trial court enter a decree permitting them to construct a gasoline filling station on the premises. The trial court, sitting without a jury, entered a final judgment order finding the ordinance valid in its application to plaintiffs’ property and entered judgment for the defendant. Plaintiffs appeal. No questions are raised on the pleadings.

The subject property, consisting of three lots, is located at the southeast comer of 71st Street and Vincennes Avenue in Chicago. The parcel is irregular in shape, having frontages of approximately 154 feet along Vincennes Avenue and 137 feet along 71st Street. Vincennes Avenue is a major six-lane highway with dividers running northeast and southwest and intersecting 71st Street about 300 feet west of the interchange of the Dan Ryan Expressway. Seventy-first Street, which abuts the property on the north, is a major six-lane thoroughfare running east and west. The Shell Oil Company has options to purchase the subject property if it is rezoned to allow an automobile service station.

The subject property is included in and is within the jurisdiction of the Southeast Englewood Conservation Project. The plan of the urban renewal project contemplates that the property shall continue to be used for low density residential purposes. The boundaries of this project are 67th Street on the north, the Dan Ryan Expressway on the east, 75th Street on the south, and on the west an irregular boundary formed by the Chicago and Western Indiana Railroad tracks and by Yale and Princeton Avenues. Counsel for plaintiffs do not deny the validity of the Urban Community Conservation Act or the power of the City to designate conservation areas pursuant thereto. Nor do they have any disagreement with the purpose of urban renewal.

The threshold question in the case at bar is what scope of review is afforded to owners of property within a conservation district who contest a zoning restriction. The Supreme Court of Illinois was first confronted with the question as part of a broad scale attack on the constitutionality of the Urban Community Conservation Act (Ill Rev Stats, 1953, c 67½, pars 91.8-91.16) in the case of People ex rel. Gutknecht v. City of Chicago, 3 Ill2d 539, 121 NE2d 791. In approving the Act the Court stated that “ [i] f the action taken by said [city] council in adopting a conservation plan be deemed unreasonable, oppressive, capricious or discriminatory, resort to the courts is available.” People ex rel. Gutknecht v. City of Chicago, 3 Ill2d 539, 549, 121 NE2d 791, 797. The scope of review under the Act was further clarified in Westfield v. City of Chicago, 26 Ill2d 526, 187 NE2d 208. There the Court stated:

“a conservation plan is not sacrosanct, and the right to test the validity of zoning regulations included in such a plan is not destroyed, although the comprehensive study and planning involved in the creation of an urban renewal district is certainly a factor entitled to special consideration.”

Westfield v. City of Chicago, 26 Ill2d 526, 530, 187 NE2d 208, 211. Thus, it seems clear that the plaintiffs in the instant case are not precluded from seeking judicial review of the Zoning Board’s denial of their application for a zoning change merely because their property is within a conservation district.

In considering the validity of the zoning ordinance in its application to a particular site, each case must necessarily be decided on its own particular facts. The court must take into consideration the use and zoning of nearby property, the character of the neighborhood, the extent property values are diminished and the relative gain to the public as compared with the hardship imposed upon the owner. A zoning classification will be upheld if it bears a substantial relation to the public health, safety, comfort, morals and welfare. Where the question of its reasonableness as applied to a particular parcel of property is subject to a fair difference of opinion, the legislative judgment of the zoning authority should be followed. The presumption of validity is overcome, however, when it is shown that the ordinance results in the destruction of property values with an absence of any reasonable basis in the public welfare requiring the restriction and resulting loss. Wolfe v. Village of Riverside, 60 Ill App2d 164, 208 NE2d 833; La Salle Nat. Bank v. County of Cook, 28 Ill2d 497, 192 NE2d 909.

The subject property is located in a R-3 residential district which is bounded by Vincennes Avenue on the west and 71st Street on the north. Lot 11, in the center of the subject site, is improved with two two-flat buildings. Lot 10, which is the southern portion of the subject site, and lot 12, the northern portion abutting 71st Street, are vacant. The entire area to the immediate east and south of the subject property, and bounded by South La Fayette Avenue to the east, 75th Street to the south, Perry Street and Vincennes Avenue to the west is zoned and developed as a R-3 general residential district. All of the properties from 70th Street to 79th Street along the east side of Vincennes Avenue except for the plaintiffs’ property and the large majority of those on the west side of Vincennes are zoned for business, commercial and manufacturing uses.

Directly west from the subject site, across Vincennes Avenue, at the southwest corner of the intersection of Vincennes and 71st Street, is a Standard Oil Service Station which was built 16 years ago. On the southeast corner of 71st Street and Wentworth Avenue, about one block from the Standard Station, is a Texaco Service Station. Directly north of the subject site, across 71st Street, at the northeast corner of the intersection of 71st Street and Vincennes, is a high-rise building containing 196 apartments on the upper floors and business uses on the ground floor.

The plaintiffs’ witnesses testified that the fair cash value of the subject property under its current zoning classification is about $35,000. If the zoning classification is changed to allow an automobile service station the property would be worth $125,000. There was also testimony to the effect that since the Dan Ryan Expressway had opened, the traffic on 71st Street and Vincennes Avenue had increased markedly. Lastly, several of the plaintiffs’ witnesses stated that the highest and best use of the subject property was for a filling station, while a witness for the defendant testified that from a city planning viewpoint the highest and best use of the subject property would be medium density residential.

As stated above, a presumption of validity attends a zoning ordinance adopted pursuant to legislative intent. Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643. It is our opinion that the plaintiffs, as the parties attacking the R-3 classification, failed to sustain their burden of proving by clear and convincing evidence that the ordinance is arbitrary and unreasonable and that it is without substantial relation to the public health, morals, safety, and welfare, and that, therefore, they did not overcome the presumption of validity that attaches to a zoning classification.

Firstly, the fact that there would be an enhancement of the value of the subject property, if it were zoned to allow an automobile service station, while a factor to be considered is not decisive in determining the reasonableness of the existing classification. River Forest Bank and Trust Co. v. Village of Maywood, 23 Ill 2d 560, 179 NE2d 671; Jacobson v. City of Evanston, 10 Ill2d 61, 139 NE2d 205. The plaintiffs maintain that the courts of this State have consistently held that where the loss to the property owner caused by the zoning restriction is shown and there is no reasonable basis in the public welfare for the plaintiffs to suffer such a loss, the presumption of the validity of the ordinance is overcome, citing Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 182 NE2d 147; Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323.

In Marquette the Supreme Court held that the restriction of an area of 90 acres to single family residences on 20,000 square foot minimum lots was discriminatory, confiscatory, and unreasonable. On the particular facts in this case the Cook County Board of Zoning Appeals recognized that the subject tract could not be economically developed as a subdivision under the zoning classification. The trial court upheld the Board’s decision. The Illinois Supreme Court affirming stated:

“It is not the mere loss of value alone that is significant in this case, but it is the fact that the public welfare does not require the restriction and resulting loss. When it is shown that no reasonable basis of public welfare requires the limitation or restriction and resulting loss, the ordinance fails and the presumption of validity is dissipated.”

Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 502, 182 NE2d 147, 150.

In Fiore, the Appellate Court sustained the trial court’s finding that the ordinance which restricted all of plaintiff’s property to office and research uses did not bear a reasonable relation to public health, safety, comfort, morals or general welfare and was invalid as to plaintiff’s land. There the plaintiff sought to have 300 feet in width of their land along Skokie Highway rezoned “G-l,” for office and research use, and the balance of the 16 acre tract rezoned “F” for multiple construction. The Court held that under the circumstances the zoning classification given plaintiff’s land served no public purpose and most certainly deprived the plaintiff’s land of considerable value.

In the case before us, the plaintiffs have shown that their property would be worth a great deal more if it were zoned to permit an automobile service station. However, the plaintiffs have failed to convince us that there is no reasonable basis in the public welfare for this loss. Thus, the plaintiffs fail to come within the purview of the Marquette and Fiore cases.

Secondly, the fact that 71st Street and Vincennes Avenue are heavily traveled highways is not, of itself, decisive. Gans v. City of Chicago, 102 Ill App2d 456, 243 NE2d 400; Kellett v. County of Du Page, 89 Ill App2d 437, 231 NE2d 706. In Cans the trial court entered a decree permitting the construction of a gasoline filling station at the northeast corner of 95th Street and Michigan Avenue in Chicago two blocks from the Dan Ryan Expressway. The area had been zoned Bl-1 local retail which did not permit the requested use. There the plaintiff’s expert witnesses testified that a gas station was the highest and best use of the premises basing their opinion primarily on the existence of two gasoline filling stations across from the subject property and on the general business development on the south side of 95th Street. The Appellate Court reversed the Circuit Court and in doing so upheld the City’s contention that although 95th Street is a heavily traveled highway, and although the subject property would be ideal for development as a gasoline filling station, nonetheless, 95th Street was reasonably employed by the City as a zoning district line between areas involving different uses.

The case at bar presents even stronger reasons to deny the plaintiffs the relief they seek than Cans. Not only did the plaintiffs in the instant case fail to persuade the trial judge of the merits of their case, a failing not shared by the plaintiff in Cans, but in the case before us another factor, the conservation plan, argues against granting the plaintiffs their zoning change.

Thirdly, the plaintiffs argue that the trend of development in the area adjacent to their property is toward commercial uses and that, therefore, the R-3 residence district classification is invalid. Western Terrace Bldg. Corp. v. Village of Palatine, 102 Ill App2d 116, 243 NE2d 566. Plaintiffs point out that the most recently constructed building in the area is the 18 story high-rise building directly across 71st Street from the subject property. It is stressed that this building containing 196 apartments on the upper floors and an insurance corn-pany office and barbershop on the ground floor dominates the entire area and is incompatible with the residential development of the subject site. The plaintiffs maintain that permission was granted to the owners of the high-rise in violation of the low density residential zoning recommended for the site by the Department of Urban Renewal “which the City now insists must nevertheless be enforced against the plaintiffs.” The plaintiffs also direct this court’s attention to the fact that the only other buildings constructed in the immediate area during the past 10 to 15 years have been the Standard Oil Station on the southwest corner of the intersection of Vincennes Avenue and 71st Street and the A & P Supermarket, immediately south of it. All of these developments, the plaintiffs argue, are commercial in character and emphasize the commercial trend of the area.

We agree with plaintiffs that in Illinois a factor of paramount importance is the conformity of the existing zoning of the subject property with surrounding existing zoning and uses. Colvin v. Village of Skokie, 54 Ill App2d 22, 203 NE2d 457. We also agree that the trend of development in the immediate area of the property in question is an important consideration. Dixon v. County of Kane, 77 Ill App2d 338, 222 NE2d 354. We do not agree, however, with the plaintiffs’ characterization of an 18 story high-rise with incidental businesses on the ground floor as a commercial use. Nor do we find helpful plaintiffs’ assertion that there has been a trend away from residential development toward commercial when both developments they refer to (the Standard Oil Service Station and the A & P Supermarket), according to their own witness, occurred 16 years ago. In short, we find that there has been little or no development at all and certainly not enough to be able to say there is a trend toward commercial uses. Furthermore, we think the plaintiffs overlooked the salient fact that the subject property is part of a series of continuous blocks bounded by Vincennes Avenue and Perry Street to the west, 71st Street to the north, South La Fayette Avenue to the east and 75th Street to the south that is zoned and developed as residential.

Lastly, a factor which we consider of paramount importance is the fact that the subject property is within an urban renewal district. To invalidate the zoning classification at this time would tend to impair the status of the neighborhood. The plan is now in execution for future development in this area. There is evidence of properties acquired and demolished and to be acquired and demolished, because of substandard conditions and incompatible land uses. Prior to the beginning of the effectuation of the plan there had been no construction in the area for many years. Condemnation proceedings were resorted to in order to clear a Cl-2 commercial site across the street from the subject property so that it might be converted to a residential site. There was testimony by Joseph Evans, Project Coordinator for the Department of Urban Renewal, that the site of the Texaco Station at 71st and Wentworth Avenue is now designated for use as a park. What was said in Berman v. Parker, 348 US 26 at page 33, we think is appropriate here:

“We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive .... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as -healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.”

The United States Supreme Court went on to say:

“The particular uses to be made of the land in the project were determined with regard to the needs of the particular community. The experts concluded that if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums — the overcrowding of dwelling, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced integrated plan could be developed for the region, including not only new homes, but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented. (Emphasis supplied.)

Berman v. Parker, 348 US 26, 34-35.

While the conservation plan is not sacrosanct, and the right to test the validity of zoning regulations included in such a plan is not destroyed, we cannot say that the plaintiffs have sustained their burden of proof to show that the ordinance results in the destruction of property values with an absence of any reasonable basis in the public welfare requiring the restriction and resulting loss. We believe that upon the particular facts in this case the ordinance does bear a substantial relationship to the pub-lie health, safety, welfare and morals. The use of plaintiffs’ property as an automobile service station would, in our opinion, be incompatible with the orderly development of the existing urban renewal plan.

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

Affirmed.

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

       The plaintiffs have exhausted all administrative remedies.

       Lot 10 on the south is vacant and owned by South Chicago Bank as trustee under Trust No. 11-885 since 1954. The southern half of lot 11 is owned by Louis E. Robertson and Theresa Robertson since 1960. The northern half of lot 11 is owned by Cecil Mimms and Mildred Mimms since 1953. Lot 11 is improved with two two-flat buildings approximately 60 to 75 years old. The remainder of lot 12 on the north abutting 71st Street, being the portion left over after a part of the lot was taken for the widening of 71st Street, is also vacant and is owned by Guaranty Bank and Trust Company, as Trustee under Trust No. 10806 since 1963.


author: MR. PRESIDING JUSTICE LYONS

text:
    Flores E. Suarez, et al., Plaintiff-Appellant, v. Yellow Cab Co., et al., Defendant-Appellee.
    Gen. No. 52,618.
    First District, Second Division.
    June 24, 1969.

      Mitgang & Levine, of Chicago (John B. Schwartz, of counsel), for appellant.
    Jesmer and Harris, of Chicago (Julius Jesmer and Michael Silverman, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The plaintiff, Flores E. Suarez, appeals from an order denying his section 72 petition (Ill Rev Stats 1967, c 110, § 72) which petition sought to vacate an earlier final order of the trial court dismissing his complaint for personal injuries for failure to appear at a pretrial conference. The sole issue presented in this appeal is whether the court abused its discretion in denying the section 72 petition.

On June 21, 1962, the plaintiff filed his complaint at law, accompanied by a jury demand, naming the defendant as one of four defendants. The defendant promptly filed its answer. Approximately three years later, on July 20, 1965, a pretrial conference was held. An order was entered on that date dismissing the complaint, on motion of the court, for the failure of anyone to appear to prosecute the cause in behalf of the plaintiff. Exactly two years later, or on July 20, 1967, the plaintiff filed his verified section 72 petition, supported by two affidavits, his own and that of his counsel, in which petition he sought to vacate and set aside the earlier final order of dismissal and have his cause set down for trial. In addition, the plaintiff sought to have his new counsel substitute for his prior counsel, who sought to withdraw. The record filed in this court does not contain a report of proceedings pertaining to the hearing on the plaintiff’s section 72 petition.

In the affidavit supporting his petition, the plaintiff alleged inter alia, that: (1) he did not learn of the dismissal of his cause until July 19, 1967, almost two years after the entry of the dismissal order, when he realized that his place on the trial call had been passed; (2) he had another attorney look into the status of the case on July 19, 1967, and thereby discovered the order of dismissal; (3) he had been in contact with the attorney who had earlier filed his complaint but had never been advised by said attorney of the dismissal; (4) he had been diligent in protecting his interest and had a good and valid cause of action for personal injury against the defendant.

His attorney also filed an affidavit in which he declared that he was the attorney of record for the plaintiff and had “no honest recollection of ever receiving any notification at any time from the court regarding dismissal of the complaint for want of prosecution.”

The defendant did not file a motion to dismiss nor an answer to the section 72 petition. The petition, which was argued on the same day it was filed, July 20, 1967, was denied and new counsel was given leave to file a substitution of attorneys. New counsel prosecutes this appeal on behalf of the plaintiff. In its brief filed in this court, counsel for the plaintiff admits that the Chicago Daily Law Bulletin timely published both a notice of the pretrial conference and a notice of the subsequent order of dismissal of the plaintiff’s complaint.

On appeal, the plaintiff contends that it is an abuse of discretion for a trial judge to refuse to reinstate a case when a plaintiff presents a petition under section 72 of the Civil Practice Act which petition shows that the plaintiff had no actual knowledge of the dismissal order until more than thirty days had elapsed thereby depriving him of the opportunity to present a motion to vacate in term time pursuant to Ill Rev Stats (1965), c 110, § 50 (6).

A section 72 petition is an attack upon a final order, judgment or decree, begun more than thirty (30) days but not more than two years after the order, judgment or decree has become final, subject to three exceptions not involved in the case at bar. Ill Rev Stats (1965), c 110, § 72(1), (3). Such a petition is addressed to the sound legal discretion of the trial court. A reviewing court will interfere only when there is an abuse of that discretion. Goldman v. Checker Taxi Co., Inc., 84 Ill App 2d 318, 228 NE2d 177 (1967).

In Brockmeyer v. Duncan, 18 Ill2d 502, 505, 165 NE2d 294, 295-96 (1960), the court stated, in defining the substantive aspects of a section 72 petition:

“Section 72 of the Civil Practice Act, which substitutes a simple remedy by petition for various forms of post-judgment relief theretofore available, enables a party to bring before the court rendering a judgment matters of fact not appearing in the record, which if known to the court at the time the judgment was entered, would have prevented its rendition; ....
“A trial court cannot review its own order or judgment and correct the same, either as to any question of fact found or decided by the court or as to any question of law decided by it after the expiration of thirty days. (See Chapman v. North American Life Ins. Co., 292 Ill 179.) A petition under section 72 of the Civil Practice Act is therefore the filing of a new action; and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. . . . The rule is well established that a person may not avail himself of the present remedy unless he shows that through no fault or negligence of his own, the error of fact . . . was not made to appear to the trial court. (Guth v. People, 402 Ill 286; Greene v. People, 402 Ill 224.) Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence. McCord v. Briggs & Turivas, 338 Ill 158; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill 516.”

In the case at bar, the error of fact which was not brought to the trial court’s attention and which, if known, would have allegedly prevented the entry of the dismissal order was that the plaintiff and his attorney allegedly did not receive actual notice from the court of either the pretrial conference or the subsequent order of dismissal. The plaintiff does not dispute the propriety of dismissing his complaint for failure to attend a pretrial conference as authorized by Supreme Court Rule 22 (Ill Rev Stats 1965, c 110, § 101.22), but claims that his alleged lack of knowledge of the pretrial conference and subsequent dismissal order justified relief under section 72 of the Civil Practice Act.

While reviewing courts have become increasingly liberal in holding that dismissal orders and default judgments should be vacated when motions to vacate are presented to the trial court within thirty days after the dismissal orders or default judgments have been entered (Widucus v. Southwestern Elec. Cooperative, Inc., 26 Ill App2d 102, 167 NE2d 799 (1960); Lynch v. Illinois Hospital Services, Inc., 38 Ill App2d 470, 187 NE2d 330 (1963); Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358 (1965)), the pendulum has recently swung in the opposite direction when courts of review have been presented with section 72 petitions filed in the trial court after a substantial interval of time has elapsed since the court had entered its final order, judgment or decree. (Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719 (1968); Fennema v. Vander Aa, 42 Ill2d 309, 247 NE2d 409 (1969).) When motions to vacate are presented to the trial court in term time (i. e., within thirty days after the order or judgment has been entered), they are somewhat liberally granted because of a judicial philosophy that the movant should not be deprived of his day in court and litigation should be determined on the merits according to the substantive rights of the parties.

However, when a substantial length of time has passed, much more than thirty days, and the movant must consequently rely upon a section 72 petition to collaterally attack a final order, judgment or decree, reviewing courts have recently begun to view the contents of the petition with strictness, although recognizing that section 72 petitions are addressed to the equitable powers of the court as justice and fairness require. (Ellman v. De Ruiter, 412 Ill 285, 292, 106 NE2d 350, 354 (1952); Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 190 NE2d 348, 350 (1963).) Courts of review have not hesitated, in some cases, to deny relief to the petitioner. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719 (1968); Fennema v. Vander Aa, 42 Ill2d 309, 247 NE2d 409 (1939). The judicial philosophy in this developing area of the case law has become one of concern for the stability and finality of judgments as well as concern for the ever-increasing backlog of cases in the metropolitan areas when contrasted with the lack of diligence shown by a petitioner and his counsel in failing to learn of pretrial conferences and subsequent dismissal orders until an unreasonable length of time has passed.

In Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719 (1968), the reviewing court sustained an order of the trial court which had denied the plaintiff’s section 72 petition filed in an attempt to vacate an earlier final order of dismissal entered against the plaintiff for failure to attend a pretrial conference. The petition, filed nineteen months after the petitioner’s complaint had been dismissed, alleged, inter alia, that neither the plaintiff nor the defendants received notice of the dismissal order until one month before the section 72 petition was filed and that the failure to attend the pretrial conference was due to “mere inadvertence and excusable neglect.” In holding that the petitioner was not entitled to section 72 relief because such relief would absolve her from the consequences of her own mistake or negligence, the court stated at 39 Ill2d 464, 467-68, 236 NE2d 719, 720-21:

“It is significant that although plaintiff denied knowledge of both the pretrial conference and of the dismissal, she does not allege that no notices were sent to her or to her attorney of record nor does she deny that notice of the pretrial and the dismissal were duly published in the Chicago Daily Law Bulletin. Indeed, she attributes the failure to attend the pretrial conference to ‘mere inadvertency or excusable neglect . . . .’ The section 72 petition does not allege and there is no suggestion that plaintiff’s lack of knowledge was due in any way to fraud on the part of defendants or the court.
“We do not believe the facts alleged justify relief under section 72. It has long been held that once a court acquires jurisdiction, it is the duty of the litigants to follow the case. (Bonney v. McClelland, 235 Ill 259; Staunton Coal Co. v. Menk, 197 Ill 369.) We realize that the great volume of litigation in metropolitan centers increases this burden and fairness requires an accommodation between courts and lawyers in matters of notices. Nevertheless the practical administration of justice requires that the litigant undertake the burden of following his case if this be possible.
“Plaintiff merely claims she did not receive the postcard notices and did not see the notice in the Law Bulletin. The gist of her argument is that it is difficult, if not impossible, for a small law office to check each of its cases in the Law Bulletin. We do not agree. While the task is not an easy one, it is less onerous than to require the litigant to be in daily attendance at court to check his case. Cf. Bonney v. McClelland, 235 Ill 259.
“We do not believe that the facts alleged show such fraud, mistake or fundamental unfairness as would justify a collateral attack upon a final judgment nineteen months after its rendition.”

In the case at bar, the attorney who filed the plaintiff’s complaint did not allege in his affidavit supporting the section 72 petition that the clerk of the court failed to send postcard notices of both the pretrial conference and subsequent order of dismissal or that these matters were not published in the Chicago Daily Law Bulletin. The attorney merely alleged that he had “no honest recollection of ever receiving any notification at any time from the court regarding dismissal of the complaint for want of prosecution.” Such an allegation is entirely consistent with the fact that adequate notice was given. Fennema v. Vander Aa, 42 Ill2d 309, 247 NE2d 409 (1969); Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719 (1968). It is undisputed that the Chicago Daily Law Bulletin did timely publish a notice of both the pretrial conference and the subsequent order of dismissal.

Apparently, the plaintiff and his original attorney allowed this litigation to remain dormant for almost five years. More than three years passed from the time the complaint was filed until the order of dismissal was entered. An additional two years to the day elapsed before the plaintiff presented his section 72 petition seeking to vacate the final order of dismissal. An annual review of his pending case files would have revealed to the plaintiff’s original counsel that either a pretrial conference might be imminent or had passed or he should review the court file to determine the current status of the litigation. The Limitations Act, Ill Rev Stats (1965), c 83, § 24(a), permits a plaintiff who has been nonsuited to commence a new action within one year from the date of the order of dismissal. If plaintiff’s original counsel had conducted an annual review of his pending case files, a new complaint as authorized by the Limitations Act might have resulted. In any event, a more timely section 72 petition would have been presented to the trial court.

The dismissal of the instant complaint resulted from the inadvertent failure of the plaintiff and his original counsel to follow the progress of the case until almost five years had passed. Based upon the Esczuk and Fennema opinions, we hold that the trial court, within the facts of this case, did not abuse its discretion in denying the plaintiff’s section 72 petition. We are not persuaded by the plaintiff’s additional contention that the defendant, due to the waiver doctrine, cannot attack the sufficiency of the petition in this court since it failed to file a motion to strike the petition in the trial court. It is settled law in this State that a litigant can attack the legal sufficiency of a section 72 petition for the first time in a court of review if the petition is so defective that it will not sustain an order granted under section 72 of the Civil Practice Act. Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 16-17, 188 NE2d 59, 62-63 (1963); Schuman v. Department of Revenue, 38 Ill2d 571, 574, 232 NE2d 732, 734 (1967). The petition in the instant case, based upon the Esczuk and Fennema cases, is fatally defective. The waiver rule is thus inapplicable.

The order of the Circuit Court of Cook County denying the plaintiff’s section 72 petition is affirmed.

Order affirmed.

BURKE and McCORMICK, JJ., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James E. Lowe, Defendant-Appellant.
    Gen. No. 52,537.
    First District, Fourth Division.
    June 25, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was tried and convicted at a bench trial of the crime of burglary. Judgment was entered and he was sentenced to a term of two to three years in the Illinois State Penitentiary. Defendant raises three points on appeal: (1) the trial court erred in allowing the State to introduce hearsay testimony of the arresting officer as to the identification of the defendant by the complaining witness; (2) he was denied a fair trial by the State’s use of an identification procedure that was inherently suggestive; and (3) he was not proven guilty beyond a reasonable doubt.

EVIDENCE

Testimony of Chiquita Winston, called by the State:

On June 30, 1966, she lived at 6318 South Langley in a first-floor apartment. At 2:00 that afternoon she received a telephone call from Mrs. Dunlap and she went straight home. At home she discovered that her apartment was in a state of disarray and that the locks on the front door had been jimmied.

She made an inspection of her property and found the following items missing: two watches, a diamond ring, $150-$200 in cash, and a new swimming suit. The bolt on the outside of her air conditioner had been screwed loose and the air conditioner had fallen onto the sidewalk outside the house. The value of all the items taken is about $1,000.

Testimony of Lucille Dunlap, called by the State:

On June 30, 1966, she lived on the second floor at 6318 Langley directly above Mrs. Winston’s apartment. She is a school teacher. At about 2:00 that afternoon she heard a loud crash in the airway which she ascertained to have been made by Mrs. Winston’s air conditioner falling out of her window. She ran out of her apartment and down the front. When she reached the vestibule she encountered a man coming out of the Winston apartment carrying a television set and a bag. The man she saw coming out of the Winston apartment is the defendant.

The man told her that he was a repairman. A face to face conversation ensued for five minutes and when she said that she was going to call Mrs. Winston, he just set the television down and sauntered off. He was wearing a red shirt and dark colored trousers. He was slightly shorter than she and was wearing workman’s gloves. Her son was there also.

On July 8, 1966, she had a conversation with Detective William Tolliver in her home. She looked at between twenty and fifty photographs and picked out one as the man whom she had seen coming out of the Winston apartment on June 30. She never viewed a lineup in regard to making an identification. The first time she saw the defendant after June 30 was at the trial.

Testimony of Samuel Dunlap, called by the State:

He is the son of Lucille Dunlap who testified previously. After he heard the noise of the air conditioner falling he went down the back stairs and came around to the gangway. He then proceeded to the front of the building where he saw his mother talking to a man who was carrying a television set and a little canvas bag.

On July 8, 1966, he also looked at the photographs brought by Detective Tolliver. He recognized one photograph as being that of the man whom he had seen carrying the television set. He is positive that the defendant is the man he saw with the television set. First his mother examined the photographs and then she handed them to him. He recognized defendant from one of the photographs. His mother looked at all of the photographs and selected one; he saw the picture that she selected. When he saw the photograph that she selected he went through all the others.

He does not remember what the defendant was wearing on June 30. He does not remember if defendant had a mustache. He does remember that defendant had a process (his hair had been straightened). He remembered that defendant had long hair. The man he saw in the hall was shorter than his mother.

He did appear in Felony Court and before the Grand Jury. He does not remember testifying before the Grand Jury that defendant ran from the scene after setting the television down.

Testimony of William Tolliver, called by the State:

He is a detective with the burglary section of the Chicago Police Department. He was assigned to investigate the burglary at 6318 South Langley. He went to the apartment of Mrs. Dunlap with about twenty photographs which he showed to Mrs. Dunlap and her son Sam. They both identified a picture of James E. Lowe.

The pictures shown Mrs. Dunlap and her son were of known burglars whom the witness or other officers in the unit had previously arrested or known burglars whose photographs had been obtained by witness’s police unit. He got defendant’s picture from another officer in his unit on July 7th or 8th. He did not know at the time that defendant was in the hospital although he had heard that defendant had been shot. He did not arrest defendant; defendant had been previously arrested. (There was no evidence as to when this occurred.) Defendant’s picture seemed to show that his hair was long and that it had been straightened.

When Mrs. Dunlap and her son examined the pictures they were in the same room. She would view a photograph and then hand it to her son. She selected the defendant’s picture and said that “this looks like the fellow here, I believe it is him.” Her son was viewing some other pictures at that time, but he subsequently said the same thing.

At the Grand Jury hearing he had testified that the burglar had pulled a gun. He was not told that by either Mrs. Dunlap or her son; someone else told him that there had been a gun.

Testimony of James E. Lowe, defendant:

On the evening of June 29, 1966, he left Chicago to go to Detroit for the July 4th holidays. He returned on July 5, 1966; and he had remained continuously in Detroit for that time except for one day’s sightseeing in Canada. They crossed a bridge in going from Detroit to Canada. He didn’t remember going through a tunnel. He went to Detroit with Mrs. Thelma Wells, her baby Theresa and Pete. He stayed at the house of a Mr. Kelly in Detroit.

He had been dismissed from another burglary charge when he was arrested for the present crime. The arrest was made in the courtroom where he was dismissed from the first charge.

He was not involved in the burglary which has been described. Other than the times he has been in court he has never seen the people who testified.

On July 6, 1966, he was shot at 6271 Champlain and was taken to the hospital. He ultimately went to Felony Court on a charge associated with that shooting and he was dismissed.

Testimony of Thelma Lee Wells, called by the defense:

On June 29, 1966, she left with defendant to go to Detroit. She was going to Detroit for her sister’s birthday and defendant came along. They were accompanied by her six-year-old daughter Theresa and by Pete Fair. Her sister is Annabelle Kelly, and they stayed with Annabelle and her husband. They returned from Detroit on July 5, 1966. Defendant was continually in Detroit from June 29 until July 5. They did go to Canada; they went “through the tunnel, whatever it was, because it was dark and I remember we had to go through customs because everyone was searched.”

Stipulation as to what the testimony of Pete Fair would be:

On June 29, 1966, he went with Mrs. Thelma Wells, her daughter Theresa and defendant to Detroit, where they all remained until July 5, 1966, when they returned to Chicago.

Testimony of Arnice Turner, called by the defense:

She is a daughter of Thelma Wells who testified previously. She knows the defendant. On June 29, 1966, he was living with her family at 5231 Calumet. At about 9:00 that evening defendant got into a car with her mother, her sister Theresa and Pete Fair. Her mother returned on July 5,1966. During the time they were gone she stayed at a friend’s house.

She spoke to her mother over the telephone between June 29 and July 5. She called her mother at the house of her mother’s sister (Annabelle Kelly) in Detroit.

She did not see defendant between June 29 and July 5. During that period she returned to her home on Calumet several times and did not see the defendant.

OPINION

Defendant first argues that the trial court erred in allowing the State to introduce hearsay testimony of the arresting officer as to the identification by the complaining witness. The objectionable testimony occurred when Officer Tolliver was asked if any of a group of twenty photographs was singled out by Mrs. Dunlap and her son. He replied that they both identified the photograph of the defendant. This is clearly hearsay because the testimony of the officer summarizing a conversation with Mrs. Dunlap and her son was obviously offered to strengthen their identification of defendant. People v. Smith, 105 Ill App2d 8, 12, 245 NE2d 23.

Although the statement at trial of Officer Tolliver is hearsay and the defense attorney’s objection should have been sustained, we find that the statement was merely cumulative of the previous testimony of Mrs. Dunlap and her son and was not prejudicial to defendant. People v. James, 109 Ill App2d 328, 248 NE2d 777.

Defendant argues secondly that he was denied a fair trial by the State’s use of an identification procedure that was inherently suggestive. Defendant cites Simmons v. United States, 390 US 377, in support of his argument that photographic identification may give rise to irreparable misidentification; and so it may. But the Simmons case also notes that each case must be decided on its own particular facts; and in Simmons the photographic identification was found to be proper with the court noting that the perpetrators of the crime were still at large when the identification was made and that there were several independent identifications made. The defendant argues from these two noted facts in Simmons that his identification was improper because, first, he was in police custody at the time that the identification was made and, second, because Mrs. Dunlap and her son were together when they identified his photograph and thus did not make independent identifications.

Defendant contends that he was in police custody at the time that the photographic identification was made and that therefore the identification is in some manner faulty. This argument ignores the fact that on July 8, 1966, this crime was still in its investigatory stage and that if defendant was in custody it was in connection with some other crime. As far as the police knew, the perpetrator of the crime was still at large and thus they were following their usual investigatory patterns. Additionally, according to defendant’s testimony he was in the hospital from July 6 to August 19; to the best of his knowledge he was not under arrest; he had been shot on July 6 and taken to the hospital. Under these circumstances, we believe the police procedure of submitting photographs was reasonable and proper. See People v. Williams, 104 Ill App2d 329, 334, 244 NE2d 347.

Defendant also contends that because Mrs. Dunlap and her son examined the photographs together, the identification was so inherently suggestive as to deny him a fair trial. We find no merit in this contention because of the independent and positive nature of the identification by Mrs. Dunlap. She was face to face with the burglar for a full five minutes while she questioned him about his possession of her neighbor’s television; this certainly afforded her an excellent view of the burglar and a solid, independent origin for her later identifications of defendant. Further, she was the first to look at the photographs and thus it cannot be argued that she was affected by anyone else’s identification of defendant’s picture.

Defendant finally argues that he was not proven guilty beyond a reasonable doubt because of three circumstances: (1) the testimony of Samuel Dunlap was weak and uncertain; (2) the in-court identification by Mrs. Dunlap was tainted; and (3) the defendant presented an uncontroverted alibi defense.

First, the testimony of Samuel Dunlap is not weak and uncertain. When asked, after having identified defendant in court:

Q. Are you positive the man you identified here in court is the man which you saw in front of your house with the television set on June 30,1966 ?

the witness answered, “Yes, sir.” There is no evidence which would intimate that he was affected by his mother’s selection of defendant’s picture.

Second, we fail to find any taint of Mrs. Dunlap’s in-court identification. Her selection of defendant’s picture was not, as we have explained previously, affected in any way by the presence of her son; and she had an excellent opportunity to observe the defendant in what, obviously, seemed to her to be suspicious circumstances. As stated in People v. Brinkley, 33 Ill2d 403, 405, 211 NE2d 730:

Where the identification of an accused is at issue in a criminal case, we have constantly reiterated the rule that the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made.

Third, the credibility and weight to be given the testimony of defendant’s alibi witnesses is a matter for the trial court whose determination will not be disturbed unless palpably erroneous. People v. Ostrand, 35 Ill2d 520, 532-533, 221 NE2d 499.

In the instant case where Mrs. Dunlap, a schoolteacher, had an excellent view of the accused in broad daylight, and where there is conflict in some of the alibi testimony, we find no reason for disturbing the judgment, and the judgment is affirmed.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.

       Defendant quotes from Patrick Wall’s book “Eye Witness Identification in Criminal Cases” to support his theory that defendant was not “at large.” However, in that article the author distinguished between showing photographs before arrest and after arrest. He stated:
      In a later case, the court made clear the distinction between showing photographs when no suspect is known and showing them after an arrest has been made or a particular person is already a suspect. There the court condemned as “indefensible” the conduct of the police in showing photographs to witnesses after the accused had been arrested, and quashed the conviction. The court later learned that the photographs had been shown prior to arrest and, in addition to its original opinion, stated that the police were therefore subject to no criticism. Other cases have indirectly made the same point.


author: MR. JUSTICE McCORMICK

text:
    Mages Sports Arenas, Inc., a Delaware Corporation authorized To Do Business in Illinois, and Community Discount Centers, Inc., an Illinois Corporation (Formerly Known as Mages Sporting Goods Co.), Plaintiffs-Appellants, v. Winston Park Shopping Center, Inc., an Illinois Corporation; The Prudential Insurance Company of America, a New Jersey Corporation, and Jewel Tea Company, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 52,588.
    First District, Fourth Division.
    June 25, 1969.
    Shaffer, Seelig, Mandel & Shapiro, of Chicago (Robert S. Atkins, of counsel), for appellants.
    McDermott, Will & Emery, of Chicago (Samuel Weis-bard and Myron M. Cherry, of counsel), Arthur Abraham, I. J. Berkson, and Schiff, Hardin, Waite, Dorschel & Britton, of Chicago (John J. Waldron, and James B. O’Shaughnessy, of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered in the Circuit Court of Cook County on April 25, 1967, sustaining defendants’ motion to dismiss plaintiffs’ complaint. Defendant Winston Park Shopping Center, Inc. (Winston) constructed, developed and was the lessor of a shopping center. Plaintiffs Mages Sports Arenas, Inc. (Mages), and Community Discount Centers, Inc. (Community), executed various leases and agreements with Winston regarding occupation of the specified premises at the shopping center. Defendant Jewel Tea Company, Inc. (Jewel) leased part of the building above the premises occupied by plaintiffs.

On September 3, 1963, plaintiffs filed a complaint against the above-mentioned defendants and the Prudential Insurance Company of America, first mortgagee of the land upon which the premises were located. In the complaint plaintiffs alleged that the said defendants wrongfully caused plaintiffs’ premises to be subjected to excessive water seepage, dampness, accumulation of liquids, noxious odors and a defective air conditioning and ventilating system, all to the damage of plaintiffs. Plaintiffs prayed for an injunction and other equitable relief and for compensatory and punitive damages in the amount of $1,500,000. Answers were filed by the various defendants and counterclaims were filed by Jewel against Winston and by Winston against Jewel.

Plaintiffs’ motion for temporary injunctive relief was denied and the matter was then referred to a master in chancery for the taking of evidence. The master twice set the case for hearing, and on both occasions defense counsel attended but plaintiffs’ attorneys were absent. The master then sent the case back to the referring judge; on November 12, 1964, the case was again called, and again plaintiffs did not appear. On the motion of two of the defendants the case was dismissed for want of prosecution. The order entered on November 12 read as follows:

On motion of defendants, Jewel Tea Company, Inc. and Prudential Insurance Company of America, to dismiss this cause for want of prosecution, this case is hereby dismissed and costs charged to plaintiffs.

Plaintiffs assert that they had never received notice that a motion had been made to dismiss the case. The defendants assert that announcements of all progress cases appear in the Chicago Daily Law Bulletin a few days before the call is made, and that plaintiffs did not respond to the progress call in the instant case.

On December 12, 1966, plaintiffs filed a complaint which was identical to that which had been filed on September 3, 1963. All three defendants moved to dismiss the complaint, contending that the action was barred by the former order of November 12, 1964, which had dismissed the September 3, 1963 complaint for want of prosecution. The judge sustained the defendants’ motion and dismissed plaintiffs’ complaint “with prejudice” on April 25, 1967. No opinion was issued, nor were there any findings of fact.

Within 30 days plaintiffs moved to vacate and set aside the order, and urged that Supreme Court Rule 273 had no applicability since its effective date was January 1, 1967, subsequent to the filing of the complaint; and further, that it should not have been construed to bar the present action, for to do so would deny plaintiffs equal protection and due process under the constitutions of Illinois and the United States. On July 12, 1967, the trial court denied plaintiffs’ motion to vacate, from which order this appeal is taken.

The sole issue in this appeal is whether the dismissal of a complaint for want of prosecution bars the filing of a new action when the statute of limitations has not run. At common law a dismissal for want of prosecution did not prejudice the case of the party against whom it was entered. 54 ALR2d 473, 478. In Wood v. Maxwell, 238 Ill App 597, and in Motel v. Andracki, 299 Ill App 166, 19 NE2d 832, the courts held that a dismissal for want of prosecution did not bar the filing of a new complaint. Since it is conceded that the statute of limitations had not run, at common law plaintiffs would have a right to refile their suit. The case of Williams v. Pearson, 28 Ill App2d 210, 171 NE2d 250, cited by defendants, is not applicable.

Defendants, however, contend that Rule 273 of the Supreme Court abrogated this principle. That rule provides :

Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits. (Emphasis supplied.)

It is argued that although the rule was adopted after the filing of the suit, by the terms of the Supreme Court order adopting the rules which were to be in effect as of January 1, 1967, the rules were to be applied retroactively. However, that order provided that the new rules should govern all further proceedings in actions then pending, with two exceptions, one of which is:

(b) To the extent that in the opinion of the trial, Appellate, or Supreme Court the application of the new rules in a particular action then pending would not be feasible or would work injustice, the former procedure applies.

In our opinion, to abrogate a right to file a new suit would work an injustice to the plaintiffs.

The final order which is being appealed (the motion of plaintiffs to vacate the April 27 order of dismissal) was entered on July 12, 1967. At that time there was in effect an amended section 24(a) of chapter 83, Ill Rev Stats, which provided in pertinent part:

... if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, . . . may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution.

Under this amendment there is no question that a dismissal for want of prosecution did not bar a refiling of the suit, since Supreme Court Rule 273, by its own terms, is not applicable when a statute specifies otherwise. Therefore, if we apply the law as it existed at the time of the final order, plaintiffs may refile. Applying the common law as it existed on December 12, 1966, plaintiffs had a right to refile.

Accordingly, the order of April 25, 1967, dismissing plaintiffs’ complaint “with prejudice” is reversed and the cause is remanded with directions to proceed in a manner consistent with these views.

Reversed and remanded with directions.

DRUCKER, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold A. Brown, Defendant-Appellant.
    Gen. No. 52,953.
    First District, Fourth Division.
    June 25, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was charged with the crimes of robbery and aggravated battery. After a bench trial he was convicted of robbery, judgment was entered, and he was sentenced to the Illinois State Penitentiary for a term of from one to ten years. Defendant appeals on the ground that he was not proven guilty beyond a reasonable doubt.

EVIDENCE

Testimony of Fransisca Reyes, complaining witness:

On the morning of October 21, 1967, she left her home at 8912 Commercial Avenue to go to a Mexican restaurant across the street to use their telephone. As she was returning home a man grabbed her and pulled her into an alley. Her assailant took her purse and eight dollars. The man tore her sweater and scratched her face.

Her assailant came up from behind her and grabbed her face. There was just one boy involved in the attack, which took fifteen or twenty minutes. Her purse was recovered but it was empty. In court she identified the man who attacked her as the defendant.

Testimony of Rachel Suarez, called by the State:

She lives in the same building as the complaining witness. On the morning of October 21, 1967, she was alerted by the complaining witness screaming her name. She went to the window, opened it and observed the complaining witness being dragged across the street into a gangway. She ran downstairs and alerted the police. Some officers ran into the gangway in which the complaining witness was being attacked and returned shortly thereafter with the defendant in their custody.

The man who attacked the complaining witness had on a dark green jacket and dark pants; she did not see his face. It was very dark outside. The man the police brought out of the gangway had on the same clothes as the man who attacked the complaining witness. She saw only one man.

Testimony of James Dorsey, called by the State:

He is a Chicago Police Officer. Pursuant to a conversation with Rachel Suarez he went to investigate an occurrence at 8927 Commercial Avenue. When he arrived at that address he heard screams from a gangway. He turned his flashlight into the gangway and saw two men running toward him; he ran into the gangway and the two men fled in the opposite direction. He followed one of the men for about five or six doors from the scene of the incident and found him hiding under the sidewalk. The man he apprehended was the defendant. He was wearing a green suede jacket, gray pants and a blue shirt. He had an opportunity to observe the man’s face in the gangway when he shined his flashlight on the man; it was the defendant.

Testimony of Antonio Ramos, called by the Defense:

He is eleven years old and lives at 8926 Commercial Avenue with his parents and siblings. On the morning of October 21, 1967, he was watching television with his brother Hipoleto when he heard somebody screaming. He looked out of his window and saw two boys drag the complaining witness, who had been staggering across the street, into a gangway. He then saw defendant come out of a restaurant, pick up a bottle or stick from the curb and rush into the gangway. He heard the defendant say, “Stop it.”

He is familiar with the defendant; he has seen him in the restaurant about once a week. He was watching a western movie on the television and he heard the screams over the sound of the television.

Testimony of Hipoleto Ramos, called by the Defense:

He is thirteen years old and is the brother of the previous witness. On the morning of October 21, 1967, he was in the living room with his little brother when they heard a disturbance outside. They opened a window and saw two boys trying to drag the complaining witness into a hallway. He saw the defendant emerge from a nearby restaurant and he heard the defendant say, “Stop.” Defendant then ran to the curb, picked up a weapon and started after the two boys. At this point they closed the window and returned to watching television. They were watching a movie on television about ancient times.

Testimony of Harold Brown, the defendant:

On the morning of October 21, 1967, he was sitting in a restaurant eating dinner and waiting for an order of tacos “to go.” The complaining witness came into the restaurant and seemed to have been drinking; he noticed that she had a quart of beer under her coat. As she left the restaurant two guys jumped her. He saw this through the window and he then went outside to try to help her. He told the assailants to “stop it”; and when they did not, he picked up a coke bottle from the curb and started after them. By this time they had dragged her into the gangway. He proceeded into the gangway where he discovered that one guy had his hand over her mouth; and he began to fight with the other guy. The guy he was fighting with pulled out a .32 or .24 automatic and fired it once. He then disengaged and started to flee with one guy right behind him. At that point a police officer entered the gangway and said something about “halt or I’ll shoot.” The defendant then just turned and ran with one of the assailants right behind him. Defendant then ducked underneath the porch and heard footsteps go up the steps. He heard footsteps come down the steps and he heard two shots; at this point he was afraid that they would keep shooting so he surrendered.

He did not rob the complaining witness. He ran from the police officer because he was afraid of being shot and because he has a bad record in the neighborhoood. He is presently on probation for burglary.

Testimony of James Dorsey, recalled by the State in rebuttal :

He never heard a gunshot.

OPINION

The defendant’s first argument revolves around the apparent conflict among the witnesses as to how many people were involved in the robbery. We believe that the trial judge could correctly have decided that there were two men involved in the robbery, the defendant and an accomplice. The testimony of the complaining witness seems to indicate that there was only one man involved; but it is not unlikely that in her struggle with the defendant she never realized that there was a second person involved who actually rifled her pocketbook.

The testimony of Mrs. Suarez also seems to indicate that there was only one person involved. Mrs. Suarez, however, admits that it was dark outside and that she could not see into the gangway, and thus it is likely that she simply never saw the accomplice. It is persuasive, however, that she gave an extremely accurate description of the clothes of the man who was physically attacking the complaining witness and that her description matched defendant’s clothing.

The testimony of Officer Dorsey is consistent with the two attacker theory and raises some serious questions concerning defendant’s explanation. Defendant states that there were at least three shots fired during the attack and flight, and yet the officer did not hear any shots. It is possible that he was too far away from the scene to have heard the first shot, but the second and third were allegedly fired after defendant fled from the officer and it is virtually impossible that a trained policeman would not hear any such shots. Further, defendant had no valid reason to flee from the officer; indeed if there was a gun involved in the action defendant’s safest course would have been to remain right where he was when the police arrived. The testimony of the defendant and the two boys was evidently not deemed credible by the court since they said they saw two attackers besides the defendant and the police officer testified that he heard screams and then saw only two men running.

Defendant raises the further argument that he was not identified beyond a reasonable doubt. First of all, the complaining witness identified him in court as the man who attacked her. Defendant raises the point that it was dark outside and that she never testified that she had gotten a look at the assailant’s face. It is very likely, however, that at some time during the course of the struggle the complaining witness got a look at her attacker. Her identification is corroborated by the fact that Mrs. Suarez’s description of her attacker’s clothes matched the clothes of the defendant, and by the fact that defendant fled the scene of the crime after a policeman’s warning to stop. It is the fact of capture within moments after the crime coupled with the admission of flight that distinguishes the instant case from People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 and People v. Reed, 103 Ill App2d 342, 243 NE2d 628. In both of those cases the arrest of the defendant was made some distance from and some time after the occurrence. The only question in those cases was whether the defendant was the individual who was at the scene of the crime. In the instant case there is no question of defendant’s presence at the scene of the crime; the issue concerns his activities there — was he attacker or rescuer ? Thus when a witness testified that she saw a man in a green coat and dark pants attack the complaining witness, that man was surely the defendant.

Defendant raises the final argument that he has presented a reasonable and corroborated explanation for his presence at the scene of the crime. This is not completely true because, as we have discussed previously, there is no corroboration of any shots being fired, and Officer Dorsey’s rebuttal testimony directly contradicts defendant’s testimony on the point. As the Illinois Supreme Court said in People v. Clemons, 26 Ill2d 481, at page 484,187 NE2d 260:

. . . [W]here a case 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; and, unless it can be said that 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. West, 15 Ill2d 171.)

The judgment of the trial court is therefore affirmed.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.