author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ralph Falconer (Impleaded), Defendant-Appellant.
    Gen. No. 53,586.
    First District, Second Division.
    October 21, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer 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, Assistant State’s Attorney, and Robert K. Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

In a bench trial the defendant was convicted of burglary and sentenced to a term of not less than one nor more than three years in the penitentiary. On appeal he argues that the trial court improperly examined a witness, and that he was not proved guilty beyond a reasonable doubt.

Early in April of 1968, during the rioting at the time of the assassination of Dr. Martin Luther King, Jr., the Kiddie Center Clothing Store at 4117 West Madison Street, Chicago, was burglarized. The store had been boarded up after the burglary to prevent damage to the merchandise still inside. On April 9, 1968, at about 12:30 p. m., three policemen riding in an unmarked squad car in the alley behind the store, saw people coming out of the rear door carrying packages. All three officers testified that they saw the defendant coming out of the store carrying merchandise. Officer Nyholt chased him through an adjacent parking lot and arrested him after about five minutes during which time the defendant dropped the items he had been carrying. The officer looked for them on the way to the squad car but did not find them.

At the trial the defendant waived his right to be present in the courtroom and remained outside during the State’s evidence. He now urges before this court that he was not properly identified at the trial as the man who was seen leaving the building, and therefore was not proved guilty beyond a reasonable doubt. Defendant argues that he had remained outside of the courtroom to prevent the prejudicial confrontation in which he would be the only defendant in the room and the witnesses would be almost certain to say he was the man they had seen at the time of the crime. He had stated: “If this is the same officer, the officer, I rather not be here because, because I know he can identify me because he talked to me.”

On appeal, the defendant says the trial court erred in permitting him to remain out of the courtroom even though he had so requested. However, the prevention of the identification in the courtroom was the basis on which he had asked the trial court to accept his waiver. While Officer Nyholt was testifying the Assistant State’s Attorney had requested that the defendant be brought in so that the officer could identify him as the man he had arrested. Defense objected, and the trial court sustained the objection. Defendant now argues that he was wrong in objecting to the State’s motion that he be brought into the courtroom, and that it was error for the trial court to have so ruled.

Under the circumstances, the defendant’s argument is extraordinary. He intentionally remained outside the courtroom during the State’s evidence, and now on appeal urges that he was not properly identified in the courtroom; that the arresting officer was testifying to facts without having an opportunity to observe the defendant; that therefore, he could not testify that the man arrested and the “man on trial” were the same. The fact that the officer was denied the opportunity to observe the defendant in the courtroom was the defendant’s own decision. We cannot reverse criminal convictions because some tactical ploy of the defense backfires.

To reverse this case on the basis of the above argument would be to hold that the defense counsel had a right to deny the State its opportunity to identify the defendant at the trial, then later on appeal, seek relief because the State did the best it could and was compelled to use a secondary means of identification. It is impossible to create such a rule, and we find it difficult to believe that the defendant could seriously urge in this court that there was a “faulty identification” when it was he who refused to appear in court. Also, we must consider defendant’s statement in the bench trial that if the officer came into court he would identify him because he had previously talked to him.

Defendant denied having been inside the store and testified that he was visiting a friend in the vicinity when he noticed police cars speeding through the parking lot. He said he became frightened and started walking away because he had previously been convicted of burglary. As a matter of fact, he had been convicted of burglary on three previous occasions.

At the trial the judge questioned the arresting officer at length, apparently trying to establish the ability of the officer to have observed the defendant carefully. The defendant argues that by asking those questions the trial court assumed the role of prosecutor. He states that the trial court “shed its robe of impartiality, acted as the prosecutor and denied the accused his right to a fair trial,” and in support thereof cites People v. McGrath, 80 Ill App2d 229, 234 NE2d 660, and People v. Martin, 66 Ill App2d 290, 214 NE2d 324.

In McGrath the magistrate himself elicited hearsay testimony which was damaging to the defendant, then indicated that he was relying on the incompetent testimony in reaching his decision. The magistrate went so far as to prove up venue for the State, after which he said to defense counsel: “You may cross-examine the witness.” The magistrate appeared to have so thoroughly taken over for the prosecution that there seemed to be no necessity for the State to bring out any further evidence. In such a situation there is potential danger of the deprivation of a fair trial; however, the propriety of the court’s examination must be “determined by the circumstances of each case and rests largely in the diseretian of the trial court.” People v. Wesley, 18 Ill2d 138, 155, 163 NE2d 500. Also see People v. Trefonas, 9 Ill2d 92, 100, 136 NE2d 817.

The trial court in the instant case remained well within the boundaries of propriety. While in the situation just cited in McGrath the court assumed the role of prosecutor, in the case before us the court attempted to ascertain the truth on a more limited plane by remaining an objective observer while eliciting certain testimony in order to bring out the truth, without making any attempt to “damage” defendant’s case. The court asked questions for the purpose of clearing up certain points it believed relevant for the sake of truth and not for conviction. It would be improper to apply McGrath to the situation in the instant case. After the trial court’s questioning of Officer Nyholt, there was further cross-examination, redirect, recross and more redirect. In other words, the court’s role did not predominate and could not be considered that of an advocate.

The other case cited by defendant in this connection, People v. Martin, supra, was a jury trial, where the possibility of harm resulting from the trial court’s intervention is far greater than in a bench trial.

From the entire record of the case before us it is evident that the defendant was properly identified; that the court’s examination of the witnesses was conducted properly; and that the defendant was proved guilty beyond a reasonable doubt. The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH.

license: Public Domain

text:
    Cannon Construction Corp., a Corporation, Plaintiff-Appellee, v. Park Transportation Co., a Corporation, Defendant-Appellant-Appellee, Land Title Insurance Company of St. Louis, a Corporation, Defendant-Appellant, Childress and Company, Inc., a Corporation, East Alton Electric Co., Inc., a Corporation, and First Granite City National Bank, a Corporation, Defendants-Appellees.
    Gen. No. 68-39. (Abstract off Decision.)
    Fifth District.
    October 21, 1969.
    Robert A. Hamilton, of Clayton, Missouri, Hoagland, Maucker, Bernard & Almeter, of Alton (Robert B. Maucker, of counsel), for appellant Land Title Insurance Company of St. Louis, Missouri, and Kappel & Neill, of St. Louis, Missouri, Armbruster & Diaz, of Alton (Richard Wolff and Ross Armbruster, of counsel), for appellant-appellee Park Transportation Company; Schafly, Godfrey & Fitzgerald, of Aitón (R. Emmett Fitzgerald, of counsel), for appellee Cannon Construction Corporation.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jessie Carter, a/k/a Johnny Cunningham, Defendant-Appellant.
    Gen. No. 53,097.
    First District, Fourth Division.
    October 22, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Norman W. Fishman, 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 Thomas M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted in a bench trial for the unlawful use of a weapon. He was sentenced to a term of not less than two nor more than three years. Defendant’s sole contention is that his motion to suppress should have been allowed as his arrest and subsequent search were based upon information given by informers who were not shown to be reliable and their accusation did not state the facts upon which their belief was based.

On defendant’s motion to suppress, Sergeant James R. Reilly testified that he observed the defendant shortly before midnight on February 10, 1967, in the vicinity of 675 North Clark Street. He had this location under surveillance and investigation because several houses of prostitution were functioning in this area. He observed the defendant conversing with other individuals on the street in front of 675 North Clark. The defendant would talk to unknown males and, after brief conversations with them, they would walk into the building. The defendant would come out alone and then, approximately thirty minutes later, the man with whom the defendant had been conversing would leave the premises. The defendant would also talk with women whom he (Sergeant Reilly) knew to be prostitutes at the 675 North Clark address. He observed these same women leaning out of the doorway of this building beckoning passing pedestrians and motorists.

On February 11, 1967, at 1:30 a. m., he again saw the defendant in a gas station at Erie and LaSalle. This same morning there had been an arrest made at 677 North Clark Street in which two women were taken into custody for soliciting prostitution. These women were sitting in an unmarked police car at the gas station waiting for the arrival of a squadrol when they requested another officer to call him to the car. He then got in the car and asked why they were working at 677 North Clark. They stated:

We don’t work at 675 North Clark because Jessie [the defendant] runs things at 675 North Clark and he is a dangerous mean guy. He is a convict, an ex-convict, and he always carries a gun. We don’t want any trouble, so we don’t work with him.

As he continued to talk to the two women, the defendant approached the gas station and the girls identified him. The defendant was arrested and searched. He was carrying a .88 caliber revolver in a holster on the rightiiand side of his belt. The revolver was loaded with five rounds of ammunition, with five more rounds in his right-hand pants pocket.

The officer had previously met the two women while working on a follow-up investigation of the Richard Speck case in July 1966. They had given him information which he found to be truthful but none of their information had led to an arrest or conviction of any individual. The two women were prostitutes and had been arrested several times. He had no occasion to use them other than during the ten-day period in July 1966.

Officer Robert Boyle of the Chicago Police Department was with Sergeant Reilly when the defendant was arrested. He substantiated Sergeant Reilly’s testimony as to the arrest and search of the defendant; however, he did not hear what information the two women had given Sergeant Reilly.

Defendant’s motion to suppress was denied. Thereafter, the facts based upon the motion were stipulated to, a jury was waived, and the court found the defendant guilty of unlawful use of a weapon.

Defendant contends that his motion to suppress should have been granted. He argues that at the time of arrest and search the police lacked sufficient grounds to form a reasonable belief that he was committing or had committed a crime since the information which led to his arrest was given by two informers who were not shown to be reliable and was not based upon facts within their particular knowledge.

We do not agree with defendant’s contention. It is not necessary that all information which is given to law enforcement officials be supplied by professional informers. Reliable information may come from any citizen. In People v. Hester, 39 Ill2d 489, 514, 237 NE2d 466, the court said:

[T]he usual requirement of prior reliability which must be met when police act upon “tips” from professional informers does not apply to information supplied by ordinary citizens. (Draper; People v. Lewis, 49 Cal Rptr 579, 582; George, Constitutional Limits on Evidence in Criminal Cases, 13.)

In People v. Roberta, 352 Ill 189, 185 NE 253, a similar fact situation as in the instant case was presented. The defendant was convicted for carrying a concealed weapon. He had filed a motion to suppress which set forth that the police officers had no warrant for his arrest; that he committed no offense in their presence; and that he was unlawfully searched. The police had arrested two girls for prostitution in a building which had been raided. When the girls were asked if anyone else was connected with the place, they stated that there were a couple of sluggers, who were their men, in the storeroom on the ground floor of the same building. The police found the defendant in this room, and he was arrested. Pistols were found on his person. The court found that the information given by the two girls supplied the officers with a reasonable belief that the defendant had committed a crime. The court affirmed his conviction.

In Roberta, supra, 193, the court said:

No general rule applicable to every case has been or probably can be announced as to what facts will constitute justification, in law, for an arrest by an officer without a warrant, other than that such ground of suspicion or belief exists as should influence the conduct of a prudent and cautious man under the circumstances. Each case must be considered upon its own facts. People v. Kissane, supra; People v. Scalisi, supra.

Based upon the facts in the instant case, we find that the arresting officers had sufficient grounds to believe that the defendant had committed the crime of unlawful use of a weapon. The judgment of the Circuit Court is therefore affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bobby J. Sisson and Charles Johnson, Defendants-Appellants.
    Gen. Nos. 52,627, 52,637, 52,641. (Consolidated.)
    First District, Third Division.
    October 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty> Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Kavanaugh, Assistant State’s Attorneys, of counsel) for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Bobby Sisson and Charles Johnson were convicted by a jury of armed robbery. Sisson was sentenced to the penitentiary for a term of five to ten years and Johnson for a term of four to eight years. They complain of errors and prejudicial conduct at their trial.

Bobby Lee Barron was beaten and robbed by three men in the afternoon of October 13, 1966. Sisson and Johnson and a third man approached Barron, who was waiting for a bus at 63rd and Kenwood Streets, Chicago. They demanded a quarter from Barron and accused him of testifying against Sisson at a trial. When he said he had no money and that he had not testified against Sisson they increased their demand to one dollar and a quarter. When he again said he had no money, they threatened him with metal objects and a knife, beat him and robbed him of over $80.

Two days later, on October 15th, Barron saw Sisson and called a police officer, who arrested him. On January 19, 1967, Barron saw Johnson in a store, called two officers, and Johnson was arrested. Both defendants denied robbing Barron, but neither recalled where they were on the day of the robbery.

The defendants complain of several errors affecting Sisson but only one concerning Johnson. During his direct examination, Barron was asked if he ever had any occasion to speak with Sisson before the robbery. Barron replied, “I’m part time employed at a grocery store and he used to come in the store all the time and take things and put them in his pocket and I would go and tell him to put them back.” An objection to the statement was sustained and the jury was told to disregard it.

The general rule is that evidence of separate and distinct offenses is inadmissible. People v. Cordes, 391 Ill 47, 62 NE2d 465 (1945); People v. Baxter, 74 Ill App2d 437, 221 NE2d 16 (1966). Such evidence may raise the prejudicial inference that because the defendant has previously committed a crime he is more likely to have committed the crime for which he is being tried. The testimony of Barron that Sisson stole items from the store where Barron worked was damaging to Sisson’s case, but the error was waived when Sisson’s attorney, in an effort to impeach Barron on other matters, introduced into evidence and read to the jury Barron’s testimony before the grand jury. This testimony also disclosed that Sis-son stole articles from the store. Further, during Barron’s cross-examination, the defense elicited the informatian that the owner of the store knew Sisson because he had broken into the store. This additional evidence was not brought out to counteract or explain Barron’s direct testimony and it was not offered to lessen its adverse impact.

Barron also testified on direct examination that during the robbery Johnson said: “I hear you were out there before when Moon [Sisson] was on trial when you were down in Judge Ryan telling , . . .” The defendants argue that this testimony informed the jury that Sisson was tried for some crime and was harmful to their case. Evidence that a defendant has been tried on a criminal charge is inadmissible, but the jury would not necessarily conclude from this testimony that Sisson previously had been tried for a criminal offense. The statement which Barron quoted is not clear and the inference is as easily drawn that Sisson was on trial in a civil case. Moreover, Johnson’s statement was made during the robbery and showed a motive for attacking Barron. The same statement was also introduced by the defense when Sisson’s attorney read to the jury the transcript of Barron’s grand jury testimony.

During the cross-examination of the officer who arrested Sisson, the defendants’ attorney directed his questions to the officer’s knowledge of Sisson and then changed his line of questioning to the officer’s knowledge of Barron. The officer apparently thought the question still referred to Sisson. He was asked, “What did you hear of him?” and he replied, “I had heard he was a narcotic addict.” On redirect examination the prosecutor asked, “Officer, you are talking about who when you said you had heard he was a narcotic addict?”; the officer replied that it was Sisson. The court struck the testimony.

Evidence of the narcotics addiction of a defendant in a crime not involving narcotics is inadmissible. People v. Smith, 38 Ill2d 237, 231 NE2d 185 (1967). The police officer while being questioned by the defense, inadvertently left the impression that Barron was addicted to narcotics. The defendants’ attorney did not correct the mistake and the prosecutor made an effort to do so. But the question he asked was unfortunate. Instead of asking a question which would negative the inference that Barron was an addict, he asked a question which could be answered only with the name Sisson. The prosecutor knew what the answer would be and he was responsible for the response. Although this was error it cannot be held to be reversible error in view of the fact that the defense was responsible for the misleading implication which made a correction justifiable.

It is claimed that prejudice resulted from the State’s cross-examination of Sisson concerning the circumstances of his arrest. When the prosecutor asked on what date Sisson was arrested, Sisson replied giving the date of the alleged crime. This colloquy followed:

(Prosecutor):

“No that was the day that you assaulted Mr. Barron, I’m talking about.”

A.

“I didn’t assault anyone.”

(Defense Counsel):

“Objection, Your Honor. Now why would the State’s Attorney make that comment?”

(Prosecutor):

“Because it happened to be true and I will prove it.”

The Court:

“Objection sustained.”

The remark “because it happened to be true” is claimed to have been based on the prosecutor’s opinion and hence error. People v. Hoffman, 899 Ill 57, 77 NE 2d 195 (1948). It may have been based on his opinion but it was also based on evidence — Barron had testified that he was assaulted. However, the additional remark “and I wiU prove it” was not based on evidence already in the case; it was a promise that evidence would be introduced which would substantiate the assertion. If the prosecutor had not introduced further evidence this would have been error. But he made good his promise. In rebuttal, he presented the testimony of a clerk who worked in the drugstore to which Barron had fled after the robbery. She testified that Barron’s face was bloody when he entered the store. Before getting medical aid he went to a telephone. Sisson and Johnson, whom she knew, came into the store after he did; Sisson tore the phone from his hand and attempted to strike him. The druggist intervened, pushed the defendants out of the store and locked the door while Barron called the police. Barron’s bloody condition after the robbery sustained the prosecutor’s statement that he would prove that Barron was assaulted.

Only one of the errors complained of by the defendants could affect Johnson. During his closing argument the prosecutor commented on the inability of both defendants to recall what they were doing on the date of the robbery. In his argument on this point he said, “There is not a question in my mind and I doubt that there is any question in your mind, let alone a reasonable doubt or a reasonable question.” He then argued it was improbable that Sisson, who was arrested two days after the robbery, would fail to recall what had happened on that day. No objection was made to the argument. The defendants contend that the remark constituted a personal opinion and was prejudicial. The remark was not prejudicial. It was based on the evidence and was directed, not to the ultimate guilt of the defendants, but to the improbability of one aspect of their testimony: their inability to recall what they did on the date of the robbery. Prior to and after the comment complained of, the prosecutor reviewed and drew inferences from the defendants’ testimony. His statement must be related to and its meaning must be drawn from this discussion. It clearly indicates the opinion he expressed was based on the improbability of the defendants’ testimony and thus was proper argument.

The judgment as to both defendants is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Pirovolos, Defendant-Appellant.
    Gen. No. 53,288.
    First District, Third Division.
    October 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Kenneth L. Gillis, Special Assistant State’s Attorney and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Louis Pirovolos, was charged with the crime of murder. After a bench trial, defendant was y ' found guilty of voluntary manslaughter and sentenced to a term of 2 to 14 years in the penitentiary. He appeals, contending that he was not proved guilty of voluntary manslaughter beyond a reasonable doubt, or in the alternative, that the sentence imposed was excessive and should be reduced.

On January 14, 1967, defendant and the deceased, among others, were engaged in upholstering seats at a theatre in Chicago. The two men became involved in an altercation at or near a room in the theatre balcony. As a result of this encounter, the deceased received a knife wound in the head, which caused his death. During the altercation defendant used a regular knife, about 10 inches long, while deceased was holding a carpenter’s knife described as being half the size of defendant’s knife, and composed mostly of a handle with razor blades protruding about a half to three-quarters of an inch. This carpenter’s knife was used by deceased in his work.

Emerick Cor, a fellow employee, testified for the State that while the witness and deceased were talking, defendant came in, swore at the deceased and ordered him to go downstairs. When deceased told defendant that he was not the boss, defendant left the room and the balcony. A few minutes later defendant returned, and resumed giving orders and swearing at the deceased. Defendant then came to the door of the room holding a knife and challenged the deceased. The deceased took off his glasses, dropped a hammer which he had been using, and advanced towards the defendant who had the knife in front of him. Defendant who never entered the room, backed away, and picked up a stool. As the deceased was getting out of the room, he picked up the the back of a seat. The two men scuffled, and defendant swung the knife and struck deceased. When the witness saw him after the incident, defendant had a small cut on his forehead.

Defendant testified that he was in charge of the work. When he ordered deceased to go downstairs, deceased swore at him. When defendant returned from informing the owner about that conversation, deceased was holding a hammer. Deceased then picked up a carving knife, and challenged defendant to make him leave. Defendant was at the door to the room, while deceased was in the room next to the staircase. Defendant ran out, backing up, and he bumped into a stool with a knife on it. He picked up the stool and knife, while deceased was swinging the knife. Deceased dropped the hammer, and picked up the back of a seat. Deceased struck defendant on the head with the knife. Defendant became dizzy, put his hand up, and deceased was stuck with the knife. Defendant had been previously convicted of aggravated assault.

Lawrence Airdo, another coemployee, testified for the defense that when deceased told defendant not to call him names, defendant started to return to the room. Deceased came out of the room, holding the little carpenter’s knife and a hammer. Defendant looked scared and backed up, picking up a stool. Deceased dropped the hammer, picked up the back of a seat and struck defendant a glancing blow on the head with the seat. Defendant did not fall, but crouched, arose and struck deceased with the knife. Defendant was about 6 feet from the wall.

The owner of the theatre testified in rebuttal that defendant was not in charge of the work. He also testified that after the incident Airdo said that he did not see anything.

At the conclusion of the evidence, the trial court made a finding that the deceased had made a certain assault on defendant, and that defendant was justified in the use of some force, but that his use of deadly force was unjustified. The trial court also found that defendant was in the process of retreating, but had an opportunity to retreat further.

Defendant was found guilty of voluntary manslaughter under HI Rev Stats 1965, c 38, § 9-2 (b) which provides as follows:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing . . . but his belief is unreasonable.”

Defendant first contends that he was not proved guilty of voluntary manslaughter beyond a reasonable doubt, arguing that the evidence established that he was acting in self-defense.

The Criminal Code, Ill Rev Stats 1965, c 38, § 7-1 provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

The issue of self-defense is ordinarily one of fact. People v. Owens, 73 Ill App2d 108, 219 NE2d 733 (1966). And while a person who is not the aggressor need not retreat from a place he has a right to be, and may use the force he reasonably believes is necessary to repel the aggressor, People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965); People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965), the nonaggressor may use deadly force only if the threatened force could cause death or great bodily harm to him. People v. Knox, 94 Ill App2d 36, 236 NE2d 384 (1968).

Even if we were to assume, as defendant argues, that he was not the aggressor and therefore had no duty to retreat, the evidence supports the finding of the trial court that defendant was not justified in the use of deadly force. The testimony of Airdo, a defense witness, discloses that, after an exchange of words, defendant had a regular knife and was also holding a stool, while deceased had a hammer in one hand and a carpenter’s knife in the other. This carpenter’s knife consisted mostly of handle with razor blades protruding about one-half to three-quarters of an inch. According to Airdo, deceased dropped the hammer, picked up the back of a seat, and struck defendant a glancing blow on the forehead with the seat. Although defendant testified that deceased swung at him with the knife, Airdo testified that deceased used only the back of the seat. According to Airdo’s testimony, there was no indication that deceased used the carpenter’s knife or that he intended to use it. Consequently, the trial court was justified in determining that defendant used an unreasonable amount of force to defend himself against the deceased, who was using only the back of a seat.

Moreover, the trial court did not make a finding that deceased was the aggressor. While it found that the deceased made a certain assault upon defendant, this is not equivalent to a determination that deceased was the aggressor. The assault by the deceased could well have been in defense of his person. There was ample evidence that defendant aggressively initiated the conflict, was the first to arm himself, and retreated only after deceased emerged from the room in which he was working. Although we have determined that there was sufficient evidence to support a finding that defendant used an unreasonable amount of force, it should also be noted that the record bears out the trial court’s finding that defendant had an opportunity to retreat completely from the area without delivering the fatal wound.

We find that defendant was proved guilty of voluntary manslaughter beyond a reasonable doubt.

Defendant next contends that his sentence of two to fourteen years is excessive. He particularly urges that the maximum part of the sentence be reduced by this court. While this court has the authority to reduce sentences, (Supreme Court Rule 615 (b) (4), Ill Rev Stats 1967, c 110A, § 615), we do not believe that the trial court abused its discretion in the imposition of sentence in the instant case. At the hearing in aggravation and mitigation, the trial court was informed that the 21-year-old defendant had been previously convicted of three misdemeanors, including one for aggravoted assault. The statutory penalty for voluntary manslaughter is imprisonment in the penitentiary for a period of one to twenty years. Under the facts and circumstances of the case at bar, the sentence imposed, including the maximum term of fourteen years, was proper, and we see no basis for disturbing that sentence.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Weldon Burris, Defendant-Appellant.
    Gen. No. 51,886.
    First District, First Division.
    October 27, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Andre Mandeville, Marshall J. Hartman, 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 Thomas M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Weldon Burris, appeals from a conviction of burglary after a jury trial. He was sentenced to a term of 3 to 8 years in the penitentiary.

The defendant contends, on appeal (1) that the trial judge erred by giving the exclusive possession instruction; (2) that this instruction did not satisfy the due process requirements of the Fifth and Fourteenth Amendments; and (3) that impeachment for prior convictions in the context of this case violated the due process clauses of the Fifth and Fourteenth Amendments.

The evidence reveals that on August 9, 1965, at about 11:00 p. m., Stanley Wawrzyniak, while at work in the warehouse of Westinghouse Electric Corporation, located at 2211 West Pershing Road, heard a noise, turned around, and saw a man walking out with an air conditioner. He challenged the man, who then turned toward him and looked at him. Wawrzyniak said that he had an opportunity to see the man’s face when he told the man to drop it, but he didn’t, and kept on going. Wawrzyniak notified his boss and then with Marvin Pienta and Marvin Bonner began a search outside the warehouse. Pienta testified that they spotted the air conditioner box against a fence in the park across the street. A man jumped up from behind the box and fled. After a chase, the employees apprehended him. Wawrzyniak testified that the man they apprehended was the same man he had seen earlier in the warehouse. At the trial he identified the defendant as the intruder whom they subsequently found with the box and apprehended. Pienta identified the defendant as the man whom they found behind the box and apprehended.

The defendant, Weldon Burris, took the stand and denied that he had ever been in the warehouse. He explained his presence near the box by stating that his car, parked nearby, had run out of gas and that he was walking across the park to look for a gas station when he heard a commotion across the street. He hid behind a box near the fence and then started to run when people started to run across the street in his direction. He said he was tackled and his arms were held by several men. Burris said he was never in the Westinghouse warehouse, and denied stealing the air conditioner. He testified that he spent the entire evening with Ronald Hudson and others before his car ran out of gas.

Ronald Hudson testified that he, Weldon Burris, and two lady friends were together between 5 and 11 o’clock during the evening in question. About 11:00 p. m. their car ran out of gas, and Burris left them to get gas. When Burris did not return after about an hour, Hudson and the ladies boarded a bus and left.

The defendant complains about the giving of the instruction which reads as follows:

The exclusive possession, shortly after the commission of a larceny, robbery or burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction in the absence of any other evidence of facts or circumstances in evidence which leave in the mind of the jury a reasonable doubt as to the guilt of such person.

It is argued that the evidence failed to show that exclusive, personal possession of the stolen property with assertion of ownership by the defendant which is strictly required under Illinois law before the accused can be presumed guilty. We do not agree. The defendant was seen carrying the air conditioner out of the warehouse. He was seen just behind the air conditioner minutes after the burglary. We believe the evidence clearly showed the possession by the defendant of the recently stolen article to be personal, exclusive, and with a distinct implied assertion of ownership which fact was not shown in People v. Mulvaney, 286 Ill 114, 121 NE 229, and People v. Urban, 381 Ill 64, 44 NE2d 885, cited by the defendant.

In People v. Stone, 349 Ill 52, 181 NE 648, the Illinois Supreme Court sustained the giving of the exclusive possession instruction where the defendant’s possession of the stolen goods was also in issue. The court stated:

We do not mean to say that it is proper to give (the exclusive possession instruction) only in cases where the possession is admitted or uncontrovertibly established by the proof. Whether or not the defendant was in possession of stolen property is often a question of fact, and if the proof tends to establish that possession then the instruction may be given regardless of whether the defendant has denied possession or not. At 349 Ill 52, 59, 181 NE 648, 651.

It is also contended that once the defendant offered an explanation of his possession of the air conditioner the presumption vanished and the exclusive possession instruction should not have been given. This contention is not valid. The jury was not required to believe the defendant’s explanation. Unless the jury did believe his story, which it obviously did not, the possession was not “explained,” and the presumption was still valid.

The defendant argues that the exclusive possession instruction fails to satisfy the due process requirements of the Fifth and Fourteenth Amendments. In Tot v. United States, 319 US 463, 63 S Ct 1241, the Supreme Court said that for a presumption to be consistent with due process there must be a rational connection between the facts proved and the facts presumed. Since it failed to meet this test, the court in Tot invalidated a statutory presumption that possession of a firearm by a person who has been convicted of a crime of violence or who is a fugitive from justice allows a jury to infer that the firearm was acquired by the person in interstate commerce and received after the effective date of the Federal Firearms Act. Applying this test in other cases, the court in United States v. Gainey, 380 US 63, 85 S Ct 754, upheld a statutory presumption authorizing the jury to infer from his presence at an illegal still that the accused was guilty of carrying on the business of an illegal distillation. While in United States v. Romano, 382 US 136, 86 S Ct 279, the court struck down a presumption that presence at an illegal still, allowed the jury to draw the inference of possession of an unregistered still.

We hold that the exclusive possession instruction satisfies the test of a rational connection between the facts proven and the facts presumed. Proof of possession of stolen property recently after the theft, in the absence of any explanation, shows a strong probability of guilt. This instruction was recently affirmed by the Illinois Supreme Court in People v. Carvin, 20 Ill2d 32, 169 NE 2d 260, cert den 364 US 923.

We find no merit to the claim that this instruction exerts intolerable pressure on the defendant to testify and thus penalizes his absolute right to remain silent as guaranteed by the Constitution. The defendant in this case was under no greater pressure to testify than is any defendant when the prosecution presents a strong case and only the defendant himself can controvert it.

The instruction did not deprive the defendant of the determination of his case as contended. It fairly left to the jury the determination of his guilt or innocence predicated on all the facts and circumstances in evidence, together with the admonition that guilt would have to be proven beyond a reasonable doubt. The jury was specifically told that possession was not conclusive. Possession, like presence in Gainey, was one circumstance to be considered among many. It must be remembered that this is not just a case of the exclusive and unexplained possession of recently stolen goods. The defendant was seen carrying the air conditioner out of the warehouse. He was apprehended with it minutes later, and he fled.

It is also contended that impeachment for prior conviction in the context of this case violated the due process clauses of the Fifth and Fourteenth Amendments, in that the defendant was precluded from presenting any defense whatsoever. The record shows that the defendant’s prior record was elicited by defense counsel on direct examination. The defendant having volunteered the information, even in anticipation of impeachment by the State, is in no position to complain. People v. Kirkwood, 17 Ill2d 23, 81, 160 NE2d 766, 771.

The defendant received a fair trial, and we believe the jury was fully justified in its verdict. We find no reversible error in the trial of this case. The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Jackson, Defendant-Appellant.
    Gen. No. 52,087.
    First District, First Division.
    October 27, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James B. Haddad, and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Robert Jackson, was indicted for unlawful sale of narcotics. The jury trial resulted in a verdict and judgment of guilty. The defendant was sentenced to serve ten to thirty years in the penitentiary. No error is alleged in the indictment.

The defendant contends (1) that the prosecutor’s comment that the testimony of the State’s witness was uncontradicted violated the defendant’s constitutional privilege against self-incrimination and (2) that the trial court unfairly restricted the defendant’s cross-examinatian of its informer by:

(a) refusing to require the addict-informer to show her arm to the jury, and
(b) refusing to permit the defense to use the informer’s past record in order to show bias.

We will briefly summarize the evidence. A narcotic addict-informer, Helen Stewart, who was on bond for a then pending charge, arranged for a “controlled sale” on January 10, 1966. That afternoon she met with Detective James Arnold. She was searched and given $25 in marked money. Detective Arnold then observed her talking with the defendant at 43rd and Calumet. The officer saw them go into a building. Miss Stewart returned shortly and handed the officer a package the contents of which, after a field test, were determined to be heroin. Miss Stewart said that she had given the defendant the twenty-five dollars for the heroin. The defendant was immediately arrested in a drugstore, where a search of his person revealed the ten dollar bill which had been given to the informer. Seven of the fifteen single dollar bills were found in the drugstore cash register. The other eight dollar bills were never recovered.

The defendant contends that his privilege against self-incrimination was violated when the prosecutor, in his closing argument, repeatedly referred to the fact that the State’s case was uncontradicted. The prosecutor characterized Miss Stewart’s testimony as uncontradicted and “She told you from the witness stand what happened and that is all that the evidence is.” In regard to the meeting between the defendant and the informer and the fact that part of the money used was recovered from the defendant, he said, “Common sense, reasonableness, and the fact that all this is uncontradicted and unrebutted leads you to only one conclusion, that this defendant sold that heroin to Helen Stewart.” Again, the prosecutor, in his final argument, said, “All we ask is that you put two and two together and from that you come to only one conclusion, the guilt of this defendant. Because that evidence is uncontradicted, it is unrebutted.”

The alleged sale between the informer and the defendant took place while only the two were present out of the hearing of the police officer. The defendant argues that, since he was the only person who could have contradicted the informer’s' testimony and he did not take the stand, to say that the informer’s testimony was uncontradicted is to say that the defendant did not testify, and the comments thus violate his Fifth Amendment privilege. The defendant relies on Griffin v. California, 380 US 609, 85 S Ct 1229, in which it was held to be a denial of the Fifth Amendment protection for the prosecutor and the trial judge to comment on the defendant’s failure to testify. The same argument made in the case at bar was made and rejected in People v. Hills, 40 Ill2d 4, 237 NE2d 697.

In Griffin the prosecutor made much of the defendant’s failure to testify. The trial court instructed the jury that the failure of the defendant to explain or deny facts within his knowledge as to which there was evidence against him tended to indicate the truth of such evidence and that among the inferences which could be drawn therefrom the ones unfavorable to the defendant were more probable. The United States Supreme Court said that such comment “solemnizes the silence of the accused into evidence against him.” 380 US 609, 614. The Fifth Amendment was held by the court to prohibit either comment by the prosecutor on the accused’s silence or instructions to the jury that such silence is evidence of guilt.

After Griffin the Supreme Court of Illinois decided Mills. Although the facts of Mills raise a question of whether the defendant was the only one who could have contradicted the State’s evidence, the court did uphold the propriety of a prosecutor’s comment that the State’s case was uncontradicted when only the defendant could contradict it. Griffin was distinguished by the court as being direct prosecutorial comment on the defendant’s failure to testify. The court stated the test for such closing argument as being whether the reference was intended to direct the attention of the jury to the defendant’s failure to testify.

In this case the record reveals that no objection was made to the prosecutor’s comments during the trial nor was this issue included in the post-trial motion. Normally, the issue would therefore be waived. However, we hold that the comments by the prosecutor in this case were not intended to focus on the defendant’s silence so as to violate the Mills test. It would be a most unusual jury which would view these comments as a covert attack on the silence of the defendant rather than as an assertion that while the State’s main witness had been attacked, her testimony was never contradicted by any evidence. We do not feel that these statements are the direct prosecutorial comments on the defendant’s failure to testify necessary to bring a case under Griffin, particularly since the court instructed the jury that the defendant’s silence raised no presumption or inference of guilt.

It is next contended that the trial judge unduly restricted the defendant’s right to cross-examine by refusing to require the addict-informer to show her arms to the jury. The informer testified that she was a narcotics addict and had taken heroin for approximately fifteen years, the last time being in July, immediately before her present incarceration. She said that when she used narcotics she took it in her arm. The defense counsel then asked her to step down off the stand and show her arms to the jury. The prosecutor’s objection was sustained.

In making this contention the defendant relies mainly on People v. Lewis, 25 Ill2d 396, 185 NE2d 168. In that case the informer admitted having been a user of narcotics by means of injecting the narcotics into his arm with a hypodermic needle, but he denied having taken any narcotics for about seven months before he testified. Counsel for the defense asked the witness to take off his coat to exhibit his arm, and an objection was sustained. Since the witness had denied any recent use of narcotics, the Supreme Court held that any scars evidencing a recent use would cast doubt on his whole testimony.

In the case at bar, the witness testified on September 13, 1966, that she had been living in the House of Correction since July 27, 1966. The trial court stated that she had had no opportunity in the House of Correction to be subjected to inoculation of narcotics. Since she admitted that she was a user immediately prior to her incarceration and made no claim that she was a former addict who had given up the habit, no possible purpose could have been served by requiring her to display her arm to the jury. This is in contrast to the Lewis case which we find inapplicable on the facts. The latitude permitted in cross-examination of witnesses at trial is a matter within the discretion of the trial judge, and his rulings will not be upset on review unless there has been a plain abuse of discretion. We hold there was no such abuse in this case.

It is also contended that the trial court unfairly restricted cross-examination when it refused to permit the defense to use the informer’s past arrest record in order to show bias. On direct examination the informer testified that she was incarcerated in the House of Correction and had been there since July 27th. She said she had been a narcotics addict for fifteen years. When she called the detective on January 10th to set up the “controlled sale” in the instant case, she then had pending against her a charge of possession of heroin. She stated with regard to her testimony that no promises were made to her by the police or the State’s Attorney.

On cross-examination the defense counsel requested the police record of the witness. Defense counsel argued that the police record would have a bearing on whether the witness had worked with the police in prior arrests since she testified that she did not conspire with the police in any prior arrests. The Court informed counsel that he could ask her those questions and that the police record showed no provable convictions. The defense counsel who apparently had a copy of the police record which he said showed 30 arrests for narcotics, argued this lends itself to some presumption that she was conspiring with the police or working with them. The Court suggested that he could tie it up and prove it. The records were marked as exhibits for identification. The Court sustained the objection to receiving the police records in evidence stating, “Insofar as the record is now, there is no foundation for it, but if the occasion arises where you have made a foundation then you may make the offer again.”

The police record issue was never again raised. It is fair to presume that this is because during the extended cross-examination the witness admitted precisely what the defense had attempted to prove. The witness admitted taking heroin for 15 years, that she spent $75 a day for the narcotics, and that she obtained the money by being a prostitute. She admitted seeing the police officers often prior to this case and that she had previously been arrested on charges of possession of narcotics by the same officers. She also testified that she was presently being held on bond for possession of narcotics and that her case would come up for trial the next day. She said she was not offered any money for her testimony and denied that the police officers or the State’s Attorney’s office offered her leniency in her case if her testimony was good. She testified further that she had worked as an informer on two or three occasions in the past for other police officers. We hold that the refusal of the trial judge to permit proof of prior arrests before any foundation was laid was neither error nor prejudicial.

The cases cited by the defendant all involved cross-examination in which no inquiry about arrests or history to show bias or prejudice was permitted despite a prior foundation. For example, in People v. Mason, 28 Ill2d 396, 192 NE2d 835, the narcotics inspector was asked whether he was recently suspended from the police force, whether he was a defendant in a criminal case recently, and what was his occupation. Objections were improperly sustained to these questions on the ground that the questions were immaterial and exceeded the scope of direct examination. In People v. Soto, 64 Ill App2d 94, 212 NE2d 353, an addict-informer was asked about his recent holdover to the Grand Jury, his being an inmate of the County Jail at the time of trial, other charges pending against him, and his association and work with the police. To all of these questions objections were erroneously sustained. In contrast, the record indicates that the defense in the instant case was permitted the widest possible latitude to establish corruption, bias, and motive by the informer to testify falsely.

In addition to the testimony of the informer, we must note that there was also the corroborative testimony of the police officer and the evidence of the marked money on the person of the defendant. From an examination of the entire record, we find that the defendant was properly convicted of the crime charged. Accordingly, the judgment is affirmed.

Affirmed.

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


text:
    William E. Bush, Plaintiff-Appellant, v. Continental Casualty Company, Defendant-Appellee.
    Gen. No. 52,876.
    First District, First Division.
    October 27, 1969.

      John D. Pope and John J. Naughton, of Chicago (William J. Harte and Robert W. Rooney, of counsel), for appellant.
    Thomas E. Keane, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This case comes to us on plaintiff’s appeal from a judgment entered on the pleadings sustaining the defendant’s motion to dismiss the cause of action. The trial court held that the complaint failed to state a cause of action and that the suit was barred by the Statute of Limitations. Ill Rev Stats 1959, c 83, §16.

The complaint was filed on May 19, 1961. Plaintiff alleged that on or about the 15th day of June, 1948, he was engaged in the planning and promotion of medical care and compensation for occupation diseases and injuries due to accidents sustained by Mexican nationals legally working in the United States. On that date, plaintiff informed the defendant insurance company that he had a plan of insurance and/or bonding of Mexican workers which would bring great earnings and profits to the insurance company. The defendant was not then in the business of writing medical care and accident insurance covering Mexican nationals. The defendant, acting through its duly authorized agents, requested and induced the plaintiff to fully divulge and inform it of his plan. As an inducement, the defendant promised to pay plaintiff “so much money as he reasonably deserved to have” in the event the defendant obtained the business. Plaintiff, relying on the inducements, promises, and representations of the defendant, did divulge and disclose his plan. At the special request of the defendant, he arranged meetings between the defendant and the then officials of the Mexican Consulate in Chicago and assisted in obtaining the help of agencies of the government of the United States in the drafting of a treaty covering the matters with Mexico, whereby an insurance and/or bonding service was to be established to be used by all employers of Mexican nationals in the United States.

It was further alleged that as a result of plaintiff’s planning and his labors, the defendant obtained a substantial business resulting in great earnings and profits. On June 6, 1948, the defendant fraudulently and wilfully misrepresented and declared to plaintiff that it was unable to write such policies and would take no further action in the matter. Plaintiff, relying on this fraudulent misrepresentation, did nothing further. On October 8, 1959, it came to plaintiff’s knowledge, that the defendant had misrepresented the truth to him and had been writing insurance covering Mexican nationals in accordance with the plan he submitted to the defendant, and is still in the business. Plaintiff made prompt demand for the value of his services, but the defendant has refused and still refuses to pay him the reasonable value of his services rendered in its behalf. Plaintiff, accordingly, sought judgment against the defendant in the sum of $250,000.

The defendant filed a motion seeking judgment on the ground that the complaint failed to allege sufficient facts to constitute a contract or contractual relationship between the parties. The motion also alleged that in any case the suit was barred by Ill Rev Stats 1959, c 83, § 16, which recites that:

Actions on unwritten contracts . . . shall be commenced within five years next after the cause of action accrued.

It was further alleged that the suit was barred by Ill Rev Stats 1959, c 59, § 1, which states in part:

No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement . . . shall be in writing. . . .

The defendant also averred that plaintiff did not allege that he was a licensed agent, representative, or broker who could legally be paid any money, commission, or brokerage service fee for the negotiation or solicitation of contracts of insurance as required by Ill Rev Stats 1959, c 73, § 1065.40.

The trial court allowed the Statute of Limitations to be raised by motion because the facts under which it was argued appeared on the face of the complaint and were properly before the court. The court stated that the plaintiff had failed to allege the facts required to bring this case within the fraudulent concealment provision of the Statute of Limitations. Ill Rev Stats 1959, c 83, § 23. The court concluded that the complaint did not squarely allege that there had been a misrepresentation and that facts and circumstances were not alleged which would show that the defendant intended to deceive the plaintiff and intended to conceal what it was doing to prevent a cause of action. There was also no allegation that the plaintiff could not have learned that the insurance company was writing the policies if he had exercised due diligence. The court, therefore, entered an order on October 17, 1967, dismissing the suit because the complaint failed to allege a cause of action and the action was further barred by the Statute of Limitations.

Plaintiff moved to vacate the dismissal. During the hearing on this motion, the court permitted argument by plaintiff’s counsel on the allegations in the amended complaint he wished to file. In the original complaint, plaintiff alleged that on or about June 15, 1948, he informed the defendant of his plan of insuring Mexican workers. Counsel for the plaintiff said the complaint should have read “1949” instead of “1948.” In the amended complaint, plaintiff alleges he made inquiry of the defendant during March, 1951. The amendment expands the original general allegation that the defendant, through its agents, requested and induced plaintiff to divulge his plan. It alleged that defendant, through a Mr. Pinker, who was in charge of its group insurance department, informed plaintiff that the company was interested and that he should divulge his plan in writing. Plaintiff was requested, as the agent of the company, to accompany two of its insurance salesmen to the office of the Mexican Consul for the purpose of discussing the group policy. Pinker orally agreed to pay plaintiff so much money as he reasonably deserved. Plaintiff was requested to submit the written plan to the Mexican and United States officials, which he did, to tie the plan in with the Bracero Treaty then being discussed by the two governments. The plan was incorporated by reference in the work agreement provided for by the Bracero Treaty which was ratified by the two governments on August 8,1951.

It was further alleged, in the amended complaint, that during the years 1951 and 1952, plaintiff was intermittently absent from Chicago. In July, 1951, he contacted one of the two insurance salesmen for the defendant whom he had introduced to the Mexican Consul and was informed by the1 insurance salesman that the defendant had been unsuccessful in writing the insurance and that they had dropped the matter. Plaintiff then attempted to contact Rinker to no avail and alleged that Rinker avoided him until some time in the year 1959 or 1960. It was at that time that plaintiff read in the Chicago press that the Bracero Treaty, effective August 8, 1951, had been renewed. He then checked with the new Mexican Consul and was informed that the defendant had written the insurance. He went to the defendant’s offices and was informed that Mr. Rinker was out. He saw a Mr. Ewald who admitted that the defendant had written the business, but denied any knowledge of the plaintiff’s activities. The original complaint was then filed on May 19, 1961. On November 20, 1967, the court entered an order denying plaintiff’s motion to vacate the dismissal and for leave to file the amended complaint.

The action commenced by plaintiff, as alleged in the amended complaint, is based on an alleged oral agreement made in March, 1951, to pay plaintiff so much money as he reasonably deserved to have in the event that the defendant obtained his plan for group insurance. In the original complaint, the year of the agreement was 1948. This suit was commenced on May 19, 1961. Whether the Statute of Limitations is applicable depends in the first instance on the allegations in the complaint. From the allegations of either complaint it appears that the plaintiff filed his action some ten years after the defendant wrote the group insurance. This would put his suit outside the five years allowed for suits based on unwritten contracts. Ill Rev Stats 1959, c 83, § 16.

To toll the statute, plaintiff alleges that the defendant fraudulently concealed his cause of action from him and that he brought his suit within two years after he learned in 1959 that the defendant had written insurance pursuant to his plan in 1951. If these contentions were valid, plaintiff’s suit would be saved by Ill Rev Stats 1959, c 83, § 23, which provides:

If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action and not afterwards.

A party seeking to avail himself of section 23, however, must allege facts that affirmatively show fraudulent concealment of the cause of action by the defendant which prevented the plaintiff from discovering that he had a cause of action. This rule that the Statute of Limitations begins to run only from the discovery of the cause of action, does not apply when the party affected by the fraud might with ordinary diligence have discovered it. Skrodzki v. Sherman State Bank, 348 Ill 403, 181 NE 325; People ex rel. Nelson v. Union Bank of Chicago, 308 Ill App 411, 32 NE2d 194. In Skrodzki the Supreme Court said:

It was there held (in Keithley v. Mutual Life Ins. Co., 271 Ill 584) that mere silence by the person liable is not concealment of a cause of action, but such concealment must consist of affirmative acts or representations. It was there also held that fraudulent misrepresentations which form the basis of the cause of action do not constitute a fraudulent concealment in the absence of proof of acts or representations tending fraudulently to conceal the cause of action, and that the rule that the statute begins to run only from the discovery of the fraud does not apply when the party affected by the fraud might with ordinary diligence have discovered it. 348 Ill 403, 407, 181 NE 325,327.

In Nogle v. Nogle, 53 Ill App2d 457 at 464, 202 NE2d 683 at 687, the court quoted with approval this statement on fraudulent concealment:

Such concealment must consist of affirmative acts or representations; there must be some trick or contrivance or affirmative action intended to exclude suspicion and prevent inquiry. 25 ILP “Limitations,” Section 92 at 267, 268.

It appears from the plaintiff’s argument that he contends that the circumstances between the parties were such as would not induce inquiry by plaintiff and that the means of ascertaining the truth were not readily available to him on such inquiry. The trial judge found to the contrary, and we are in accord. We do not believe that the facts alleged in the complaint or the amendment justify the requested relief.

Although defendant’s principal office was in Chicago, plaintiff alleged that he only talked to one of the two salesmen he had introduced to the Mexican Consul. This man told plaintiff that the company had been unsuccessful in obtaining the business and that they had dropped the idea of writing such insurance. It was further alleged that the plaintiff attempted to contact Mr. Pinker, but that he could not reach him because Pinker avoided him for some eight years. Other than these actions, plaintiff admits doing nothing. Even if plaintiff were the defendant’s agent and they owed him a fiduciary duty, which we do not believe was the case, plaintiff’s conduct does not meet the lesser standard of the duty of a diligent inquiry.

Plaintiff alleges that he discovered the fraud when he read in the Chicago press in 1959 or 1960, that the Bracero Treaty, effective August 8, 1951, had been renewed and then checked with the Mexican Consul who told him defendant had been writing the insurance. Plaintiff had dealt with the Mexican Consul for the insurance company in 1951. He had obtained the assistance of agencies of the government of the United States in the drafting of the Treaty. Either avenue of inquiry was also open to him in 1951, after the alleged misrepresentation by the salesman. The Bracero Treaty was a matter of public record. Article 19 of the Treaty provides:

The Employer shall provide for the Mexican Worker, at no cost to such Worker, the guarantees with respect to medical care and compensation for Personal Injury and Disease provided in Article 3 of the Work Contract.

The Treaty would thus have informed plaintiff that someone had to be writing the insurance.

By his own admission, plaintiff was engaged in the planning and promotion of medical care and compensation for occupational diseases and injuries sustained by Mexican nationals in 1948 and was and is engaged in the writing of multiple lines of casualty, accident, life, and health insurance which would establish him as a business man. He was acquainted with the Mexican Consul and with various representatives of the United States government who were working on the Bracero Treaty with Mexico. These sources plus the Treaty and ordinary inquiry of the insurance company were open to him from 1951 on. We hold, as did the trial court, that plaintiff alleged no facts of concealment by the defendant that would have prevented the plaintiff from discovering that the defendant was writing the insurance after the Treaty became effective in 1951.

One of the purposes of a statute of limitations is to require any necessary litigation to be brought within such time as the particular facts and circumstances may be proved with the utmost certainty and before sufficient proof has become stale or entirely lost. Horn v. City of Chicago, 403 Ill 549, 560, 87 NE2d 642, 649. A statute of limitations is designed not merely to raise a presumption of payment of a just debt, through the lapse of time, but to protect against stale demands after the true state of the transaction may have been forgotten or be incapable of explanation by reason of the death or removal of witnesses. For this bar against his action, the plaintiff cannot complain, since it was by his own neglect that the bar became effective.

Because we affirm the judgment for the defendant on the ground that the complaint and the amendment sought to be filed thereto are barred by the Statute of Limitations, we do not reach the questions of whether the plaintiff asserted sufficient essential facts to state a cause of action and whether plaintiff’s failure to move in due time, in the trial court, for leave to file an amended complaint would preclude consideration of the proposed amended complaint in this court. We conclude that the judgment on the pleadings was properly entered for the defendant and it is therefore affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billy T. Scott, Defendant-Appellant.
    Gen. No. 52,903.
    First District, First Division.
    October 27, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Justine I. Knipper 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, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Billy T. Scott, seeks reversal of his conviction for burglary in a bench trial for which offense he was sentenced to a term of three to seven years in the penitentiary. The defendant contends that the evidence failed to prove him guilty beyond a reasonable doubt and that the trial judge abused his discretion in denying defendant’s petition for probation.

The testimony revealed that on Friday, January 27, 1967, Mr. Jacob Cohen received a phone call that his store, located at 3608 West 16th Street in Chicago, had been burglarized. He arrived at the store at 4:00 o’clock in the afternoon to discover the rear door had been broken down. Inside he observed two police officers and a number of individuals who had been arrested for looting this store. The arrest procedure was finished by 5:30 p. m., when the officers and prisoners left the premises to walk to the police station due to the heavy snowfall in the Chicago area on that day. Mr. Cohen stated that after the police left, he secured the broken rear door and tried to straighten up the store. At this time, Mr. Cohen heard noises, pulled his gun and began to search the rafters of the store. He then paused and heard another noise coming from a wooden counter located in the middle of the store. This counter was about four feet high with a platform on the bottom used to store merchandise. Mr. Cohen then saw a man, the defendant Billy T. Scott, and exclaimed, “Don’t move.” When the defendant moved towards him, Mr. Cohen fired a shot into the floor and then handcuffed the defendant. At all times the lighting in the store was operating. Mr. Cohen then summoned the police.

Arthur Jackson and Alfred Bouey, Chicago Police Officers, testified concerning the arrests made in the early afternoon and the arrest of the defendant later that same evening. Initially, the officers arrived at 2:15 p. m. at Cohen’s store and observed 25 to 30 people looting the store. They announced their office and were able to capture a number of individuals within the store, with the remainder eluding the police. These same officers responded to Cohen’s phone call that evening when the defendant was apprehended in the store. Officer Jackson further stated that he and his partner were unable to conduct a thorough search of the premises on their first visit to Cohen’s store.

The defendant testified that he left his house at 8:20 p. m. to go to a barbershop at 3511 West 16th Street. He stated further that upon approaching Cohen’s store, he noticed police officers chasing people on the street; that one officer passed within two feet of him; that he feared being arrested so he entered Cohen’s store, where he was apprehended by Mr. Cohen after being in the establishment only about two seconds; and that he kneeled at the counter to hide from the police after walking through the open front door.

In rebuttal, Officer Jackson, stated there was no barbershop on that block, and that the address of 3511 West 16th Street was a food mart. On cross-examination, he testified that a barbershop was located at 3524 West 16th Street, but that it was closed on the day in question.

Defendant asserts that the evidence was insufficient to prove him guilty beyond a reasonable doubt. Specifically, the contention is made that no proof of intent was established to sustain this conviction since defendant contends that Mr. Cohen’s testimony was inconsistent and that only his testimony was available to prove that element of the crime. Defendant’s brief emphasizes that Mr. Cohen was not sure of the extent of his loss from the burglary; that he testified that no merchandise remained in the store but was contradicted by Officer Bouey, who said that some merchandise was scattered in the premises; and that Mr. Cohen was not clear as to the means used to summon the police when the defendant was apprehended. Defendant’s theory relies upon the case of People v. Hutchinson, 50 Ill App2d 238, 200 NE 2d 416 (1964), where this court stated that if “there are enough ‘inconsistent circumstances’ here to negate the inference of an intent to commit larceny” the conviction will not be proven beyond a reasonable doubt.

We are of the opinion that defendant’s guilt was proven beyond a reasonable doubt. The law is clear that intent may be proven circumstantially by way of inference from the proven facts and circumstances. People v. Niksic, 385 Ill 479, 53 NE2d 400 (1944); People v. Hutchinson, supra. In People v. Johnson, 28 Ill2d 441, 192 NE2d 864 (1963), our Supreme Court stated at page 443:

“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary.”

We do not agree with defendant’s argument that the alleged inconsistencies in Cohen’s testimony make his statements unreliable and incapable of belief. In order for a reviewing court to disturb a trial court’s judgment in a non jury trial, the record must show that the evidence was clearly unsatisfactory and improbable so that a reasonable doubt of defendant’s guilt exists. People v. DeGrea, 107 Ill App2d 301, 247 NE2d 38 (1969); People v. Cooper, 69 Ill App2d 18, 216 NE2d 168 (1966). We are of the opinion that the evidence cannot be characterized in those terms, but rather that the record supports an inference of intent to commit the crime charged.

The defendant also contends that the trial court abused its discretion in denying his application for probation and that the sentence imposed was excessive. During the hearing on aggravation and mitigation, the trial court considered the defendant’s record and also took note of the blizzard which had paralyzed this city during this period of time. Counsel for defendant claims this was erroneously prejudicial. We do not agree. In People v. Crews, 38 Ill2d 331, 231 NE2d 451 (1967), the Supreme Court acknowledged, at page 337, that in a hearing on aggravation and mitigation the court may “consider all available and pertinent information concerning the person and the crime, so as to enable him to impose a punishment which is appropriate.” The same rule applies in considering an application for probation. People v. Brown, 392 Ill 519, 64 NE2d 739 (1946). A reviewing court will not disturb a sentence where the punishment is within statutory limits unless the sentence clearly constitutes a great departure from the spirit and purpose of the law or the penalty is manifestly violative of the requirement that punishment shall be proportioned to the nature of the offense.

We find that the trial court properly considered the facts and circumstances in denying probation and imposing sentence upon this defendant. The record does not warrant a finding that the trial court abused its discretion, nor are we persuaded after reviewing the record that the evidence shows only that it was a simple trespass and not burglary.

Therefore, we affirm the judgment of conviction and sentence imposed by the Circuit Court of Cook County.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.