author: MR. PRESIDING JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Odies Morgan, Defendant-Appellant.
    Gen. No. 52,908.
    First District, Second Division.
    September 16, 1969.
    Rehearing denied October 23, 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 (Robert Kelty, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Odies Morgan, indicted for murder, was found guilty following a bench trial of the offense of voluntary manslaughter. Judgment was entered on the finding and he was sentenced to a term of not less than two, nor more than eight years in the Illinois State Penitentiary. In this appeal the defendant contends (a) that he was not proven guilty beyond a reasonable doubt, and (b) that the trial court erred in entering a “compromise finding” of guilty of voluntary manslaughter. The defendant argues under this second contention that since he presented evidence on self-defense he could only have properly been found guilty or not guilty of murder as charged in the indictment.

The evidence produced by the State established that on September 4, 1966, the date of the homicide, both the defendant and Alvin Broussard, Jr. were employed at the Malibu Lounge, located on west Sixty-third Street in the City of Chicago. Morgan was assigned to the Malibu by the Metropolitan Detective Agency, his employer. As security guard at the Malibu, his responsibility was to check identification cards at the door and to keep disturbances which might occur within the establishment down. He wore a uniform similar to that of Chicago police officers and carried a revolver, handcuffs, nightstick and flashlight. Broussard was employed as waiter. At approximately 2:15 a. m. on the above date Morgan shot and killed Broussard. There exist discrepancies between the testimony of various occurrence witnesses with respect to the events immediately preceding the homicide. Raymond Burgo, bartender and assistant manager of the lounge, was on duty at the time of the homicide. He testified that his attention was first drawn to the defendant and Broussard, who were standing near the front door of the establishment, when the conversation in which they were engaged became loud and the defendant said to Broussard, “I will knock you down like I would anybody else” and that Broussard responded by stepping back, placing his hands on his hips and saying, “Well, knock me down.” Burgo further testified that the defendant then pulled out his handcuffs, then drew his gun and shot the deceased. On cross-examination the witness stated that there was loud music playing in the lounge and he was not certain of the words spoken to Broussard by Morgan prior to the shooting.

Robert Taylor testified that he was a patron in the bar at the time of the shooting; that he did not hear any of the conversation between Morgan and Broussard; and that he saw the defendant pull his handcuffs out prior to shooting the deceased.

Prosecution witness John Collins testified that prior to the shooting the defendant said to the deceased, “Shut up” and the deceased responded, “You don’t tell me to shut up.” He further testified that he heard no other conversation before the shot was fired and that he moved to leave the area when the defendant drew his gun.

Romeo C. McDonald, the first police officer to arrive at the scene, testified that the defendant made a statement at the police station in the presence of himself and other police officers in which he gave the following version of the events leading up to the shooting. (At trial it was stipulated that proper Miranda warnings were given.) The deceased asked the defendant to eject certain patrons who were not ordering drinks. The defendant then went to the booth where the patrons were located and, upon returning to his post near the front door passed the deceased and told him to leave the customers alone as he, the defendant, would take care of them. The witness further testified that the defendant also told police officers that the deceased then dropped a tray of glasses which he had been carrying and began to curse the defendant; and that the defendant attempted to arrest the. deceased, then drew his gun and fired.

Odies Morgan took the stand on his own behalf and testified as follows. On the evening prior to that of the shooting the deceased became involved in an altercation with a patron. The defendant intervened by holding the deceased and pulling him off the patron, who then fled. Immediately following the incident the deceased informed the defendant that the patron had cut him while the defendant was holding him and stated, “I got cut tonight but when I come back on tomorrow night I’ll be straight.” The defendant then explained deceased meant that he would bring something and he said, “Don’t bring anything, Al. I can handle the people. You leave them alone.” On the night of the shooting the deceased told the defendant that there were some people in a rear booth who were not ordering drinks and that defendant should have them place an order or eject them. Defendant then went to the rear booth and the occupants thereof complained to defendant about Broussard’s conduct toward them and left. The defendant then started back toward his station near the front door and when he passed the deceased he told him to leave the customers alone, that he (defendant) would handle them. Again defendant proceeded toward his station and Broussard followed cursing him and telling him that he was lucky to be allowed to work there and that he gave orders to defendant, defendant did not give orders to him. Finally, after defendant had reached his station near the door, Broussard went over to the bar and set down a tray of drinks that he had been carrying. He then came back toward the defendant saying, “I have a gun just like you have, and you don’t tell me nothing to do.” The defendant then attempted to arrest Broussard for possession of the gun which he had stated he had, pulling out his handcuffs and stating to Broussard that he was under arrest. The deceased then jumped back and struggled to remove something from his right front pocket. The defendant shouted for him to stop and when he did not the defendant, fearing that Broussard was after the gun which he had announced was in his possession and that it would be used against him, drew his own gun and fired.

Finally, the defendant testified that a .38 caliber revolver, which was used by another employee to help him stand guard while the night’s receipts were counted, was kept behind the bar; that he refused to make a formal statement to the police, but agreed to tell them what had happened; and that his narration to the police following the shooting was the same as his testimony.

John Belmonte, a coroner’s physician who examined the body of the deceased, testified on cross-examination that given the respective heights of defendant and Broussard, the distance between them, and the path of the bullet as it traveled through Broussard’s body, it was his opinion that the deceased was in a crouched position at the time the fatal shot was fired.

The defendant also produced character witnesses who testified to his good reputation and peaceful, law-abiding nature. Certain of these witnesses testified that establishments in which he had served as a security guard had asked that he be reassigned to them because of his ability to handle people.

Ill Rev Stats, c 38, § 9-2 defines the offense of voluntary manslaughter:

(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidently causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.

Section (a) of the statute is not applicable in this case since there is no evidence of provocation or passion. The conversation between Morgan and Broussard will not suffice to fulfill the element of provocation since words alone are not sufficient to constitute provocation. (People v. Crews, 38 Ill2d 331, 231 NE2d 451 (1967); People v. Washington, 27 Ill2d 104, 187 NE2d 739 (1963); People v. Lopez, 93 Ill App2d 426, 235 NE2d 652 (1968)).

The contention of the defendant that the finding of guilty of voluntary manslaughter where he had introduced evidence of self-defense constitutes a compromise is untenable. This argument assumes that whenever a person believes that deadly force is necessary to protect himself from death or great bodily harm his belief must be reasonable. If that proposition were correct a factual situation could not arise where section (b) of the statute would be applicable.

In finding the defendant guilty of voluntary manslaughter rather than guilty or not guilty of murder as charged in the indictment, the trial judge must have found that defendant believed that the killing of Broussard would be justified or exonerated by the danger to his own person, but that this belief was unreasonable. In the argument supporting his contention that he was not proven guilty beyond a reasonable doubt the defendant has not challenged the sufficiency of the evidence with respect to the killing of Broussard or his mental state, i. e., that the killing was knowingly or intentionally accomplished. Therefore, the reasonable doubt issue is reduced to the question of whether defendant’s belief that deadly force was necessary to protect himself from death or great bodily harm was reasonable.

Whether such a belief is reasonable must necessarily depend upon the facts and circumstances surrounding its formulation. Here the defendant and deceased were involved in an incident on the night before the homicide. The following evening another dispute arose during the course of which Broussard informed the defendant that he had a gun. Thereafter, the defendant attempted to arrest Broussard for possession of the firearm which he had declared to have, and Broussard stepped back and placed his hand near or in his pocket. To hold that under the circumstances present in this case one could not reasonably believe that deadly force is necessary to protect against death or great bodily harm would approach elimination of the protection which Article 7 of the Criminal Code bestows. The defendant’s version of the circumstances and events surrounding the shooting is substantially unimpaired by the testimony of the occurrence witnesses. Two witnesses testified with respect to the last portion of the conversation had between defendant and Broussard prior to the shooting, that being the only part which was audible to bystanders over the music and general background noise in the lounge. Their respective versions of what was said are incompatible. Further, the defendant’s testimony that he first attempted to arrest Broussard is corroborated by occurrence witnesses Burgo and Taylor who testified that they saw defendant pull his handcuffs prior to the shooting.

Under these circumstances we are not prepared to say that defendant’s belief that the use of deadly force to protect himself from death or great bodily harm was unreasonable. The judgment of conviction is reversed.

Judgment reversed.

BURKE and McCORMICK, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    King Korn Stamp Company, a Corporation, Plaintiff-Appellant, v. Guaranty Bank & Trust Company, a Corporation, Defendant-Appellee.
    Gen. No. 53,332.
    First District, Second Division.
    September 16, 1969.

      Neistein, Richman & Hauslinger, of Chicago (Harry A. Young, Jr., Arthur D. Nordenberg, and Morton J. Hauslinger, of counsel), for appellant.
    Goldberg, Weigle, Mallín, Gitles & Parson, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

An action was brought by plaintiff to recover from defendant the sum of $24,317.89, which sum the defendant had “set off” from the proceeds of a $50,000 certificate of deposit which was being held pursuant to a pledge and guaranty agreements given by plaintiff to secure a loan made by defendant to plaintiff’s debtor, Atlas-United Wholesale Company, Inc., hereafter referred to as Atlas-United.

The case came before the trial court upon the pleadings and the evidence. The court heard oral testimony and considered a stipulation of facts, the facts and documents contained therein, together with additional documents admitted in evidence, then entered judgment for the defendant. This appeal is taken from that judgment.

DeJay Stores, Inc. (DeJay), and King Korn Stamp Company (King Korn) executed guaranty agreements under which they guaranteed an extension of credit by the defendant bank to Atlas-United. Delay’s guaranty, in the sum of $35,000, was dated November 29, 1961, and King Korn’s guaranty, in the sum of $50,000, was dated November 30,1961.

The agreement of King Korn, signed by one of its then vice-presidents (Norman J. Patinkin) before being executed, contained the following provision: “The granting of credit from time to time by said Bank to said Debt- or in excess of the amount of this guaranty and without notice to the undersigned is hereby also authorized and shall in no way affect or impair this guaranty.” This entire provision was stricken from the agreement with a line drawn through each word.

On December 2, 1961, the loan committee of the defendant bank met and discussed the matter of a loan to Atlas-United in the sum of $85,000. The result of the meeting was a $50,000 18-month loan to Atlas-United at 51/2 percent interest, payable monthly. An additional loan of $35,000 for 90 days with interest at 6 percent was made to Atlas-United, which was secured by Delay’s guaranty and pledge. The loans were repayable as follows : five notes in the principal amount of $2,777.77 each, maturing at successive monthly intervals; one note for $35,000, and the seventh note in the principal sum of $36,Ill.15. The $35,000 note was due March 4, 1962, but was renewed on March 9, 1962, by a $35,000 note maturing June 4,1962, the same date on which the $36,Ill.-15 note was to mature.

Prior to June 4 the loan committee voted to renew Atlas-United’s obligations; accordingly, when the $36,Ill.15 note matured on June 4 it was renewed, and the defendant accepted a series of six renewal notes from Atlas-United, payable to defendant in the total amount of $36,Ill.15. None of these notes was ever paid. On the $35,000 note which matured June 4, 1962, a payment of $5,000 was made, and defendant accepted a renewal note for the $30,000, maturing on September 4, 1962.

On June 4, 1962, which was the original date set for the payment of the $35,000 and the $36,Ill.15 notes, Atlas-United had on account with the defendant the sum of $61,641. On June 22, Atlas-United filed a petition for an arrangement under chapter XI of the Bankruptcy Act as amended. On June 28, 1962, the defendant attempted to set off the total amount Atlas-United had on deposit against its total debt of $66,Ill.15, but a court order determined $37,204.51 as the proper amount to set off, leaving the defendant with a claim against the debtor of $28,906.64. Subsequently the defendant was allowed to set off an additional $3,362.62, thereby reducing its claim against Atlas-United to $25,544.02. Thus, the defendant was allowed a total setoff of $40,567.13 from the $61,641 that Atlas-United had on deposit. From this setoff the defendant applied $30,000 against Delay’s guaranty, thereby discharging DeJay from its obligation. It applied the $10,567.13 balance of the setoff against the plaintiff’s $50,000 guaranty, leaving a total unpaid balance of $25,544.02 from Atlas-United, which the defendant took from plaintiff’s $50,000 guaranty certificate of deposit. Plaintiff later received $1,226.13 as a final payment of the net proceeds in the bankruptcy case, leaving a net loss of $24,317.89, which sum plaintiff demanded defendant to return from its $50,000 pledge. The defendant refused, and plaintiff sued for the $24,-317.89. As we have stated, the trial resulted in a judgment for defendant.

Plaintiff first argues that a condition of its extension of the $50,000 guaranty was that no more credit than that amount be extended to Atlas-United, and that when defendant loaned $85,000 to Atlas-United it breached the condition, thereby voiding the guaranty and releasing plaintiff from any duties under the guaranty. Plaintiff contends that even if it had knowledge of a potential breach of the guaranty it was under no duty to object to such breach.

Plaintiff further argues that facts were available to defendant on June 4, 1962, the date defendant renewed Atlas-United’s obligations, which facts were such that a prudent lender would not have given Atlas-United the renewal sought, and that by allowing the renewal under such conditions the defendant recklessly imperiled the rights of the plaintiff, thereby releasing plaintiff of its obligations under its guaranty. In answer, the defendant argues that the plaintiff had knowledge of the proposed extension of the $85,000 credit to Atlas-United; that one of the participating officers of the defendant bank was also a representative of plaintiff and that knowledge of the transaction should, therefore, be imputed to the plaintiff. The defendant also argues that certain language in the agreement between plaintiff and defendant clearly and unconditionally sets forth defendant’s right of renewal or extension of a loan without notice, and the defendant asserts that its renewal was not reckless; that even if it were, any implied duty defendant owed plaintiff as a result of the guaranty agreement was waived by the plaintiff.

Defendant calls attention to the following language in the agreement between it and the plaintiff:

“The liability hereunder shall in no wise be affected or impaired by (and said Bank is hereby expressly authorized to make from time to time, without notice to anyone) any . . . renewal, extension, indulgence, alteration, exchange, change in, or modification of any said indebtedness, liabilities and obligations, either express or implied, . . . .”

The defendant argues that this language is clear and unconditional and stipulates that any renewal, extension, etc., does not impair the guaranty, and that such clear language cannot be avoided by the plaintiff-guarantor.

The greater part of defendant’s argument in this court is with reference to the alleged interrelationship between plaintiff and defendant and the question of whether or not matters decided by the defendant should ipso facto be construed as known and acceded to by the plaintiff. In particular, the defendant points out that the man who signed the guaranty agreement for King Korn was also on defendant’s loan committee at the time the $85,000 loan was granted to Atlas-United. The president and a director of the plaintiff company during 1961 and 1962 was also a director of the defendant bank. Robert Adler, a director of plaintiff company, was also elected as a director of the defendant bank. It appears that the plaintiff owned seven percent of defendant’s corporate stock. Defendant urges that with this background, when Patinkin approved the $85,000 loan to Atlas-United he was serving in a dual capacity as a director and a member of the loan committee of the defendant bank, and at the same time was, in essence, King Korn itself.

In its brief the defendant asks, “If the Defendant’s loan officers could not rely on the fact that Patinkin was speaking for King Korn when Patinkin said the Atlas-United loan was ‘O. K.,’ then who of King Korn’s officers could the Defendant rely on as speaking for King Korn. The Plaintiff’s President? He was the Vice Chairman of the Defendant’s Board of Directors.” It would seem that the answer to defendant’s question would be that they could quite confidently rely on the plaintiff’s officers and could have directly asked them if they would allow an additional loan to the debtor. There was no question that Patinkin was acting in a capacity in no way related to his duties as an officer of the plaintiff company. A corporate resolution of plaintiff expressly recognized that the “officers” are authorized to take necessary action, and by the use of the plural it would seem most unwise for the defendant to rely on the word of one officer, especially when he is not even directly asked whether his approval of the transaction is intended to bind the plaintiff.

The defendant admits that it had knowledge of this resolution, but argues that the resolution gave carte blanche to any of the named officers to do any act on behalf of the plaintiff, since the language states that they are authorized “. . . for and in the name and on behalf of this company to execute, acknowledge and deliver all such instruments and to take all such other action as they may deem necessary or advisable in the premises.” It is absurd to attempt to interpret this language as meaning that when Patinkin, acting as a member of the defendant’s loan committee while a director of the plaintiff company, stated the loan to Atlas-United was “O. K.,” thereby bound the plaintiff to the extension. The defendant’s argument fails because it does not show that Patinkin had either the actual or the apparent authority to bind the plaintiff to an extension.

The clause on which defendant relies (beginning with “The liability hereunder shall in nowise be affected or impaired. . . .”) grants the defendant the right to extend or renew guarantor’s obligation, and this right is recognized under an identical phrase in Continental Illinois Nat. Bank & Trust Co. v. Cardwell, 287 Ill App 227, 4 NE2d 770. The defendant urges that this clear and unconditional language cannot be avoided by the plaintiff, and we agree that the plaintiff cannot avoid the obligation assumed by its guaranty. However, the import of such a clause is limited in scope and does not grant the defendant the right to lend more money to the debtor than that agreed to by the guarantor. Such a right was intended to arise from the clause which stipulated that the bank would have the right to grant credit to the debtor in excess of the amount of the guaranty, but as we have pointed out, that particular clause was stricken from and never became a part of the agreement.

Consequently, in seeking to find an alternative ground upon which to assert a modification of the guaranty, the defendant argues that Patinkin’s action of assenting to the loan of $85,000, while acting as a member of the defendant’s loan committee, bound the plaintiff to a modification of its agreed obligation. We feel that Patinkin’s action is far too tenuous to permit the interpretation that it was a binding commitment on behalf of the plaintiff, especially since there is no evidence that even suggests Patinkin had been asked whether or not his “okay” of the Atlas-United loan was intended to serve as a modification of King Korn’s guaranty. Even if he had been expressly asked that question, it is highly debatable whether Patinkin had the apparent authority, under the circumstances, to speak for the plaintiff on a matter of such importance. Although Patinkin had signed the original guaranty agreement as agent for plaintiff, that fact standing alone does not mean that the original decision to guarantee the loan was solely his. What it really means is that once such a decision had been made by the officers of the corporation, Patinkin was the officer designated to sign the agreement. His authority to bind the plaintiff to the Atlas-United loan of $85,000 was not established, and the circumstances under which the defendant seeks to fix Patinkin’s consent on behalf of the plaintiff are far too casual to amount to an intended binding assent. We conclude that the plaintiff did not assent to the lending of $85,000 to the debtor.

It remains to be decided whether or not the granting of credit to the debtor in the sum of $85,000 amounted to a breach of the guaranty of such a character as would release plaintiff from its obligations under the said guaranty. The defendant argues that a condition precedent was read into the agreement that no more than $50,000 be loaned the debtor, and that this condition results from deleting the clause expressly granting the defendant the right to give more credit to the debtor than was expressly provided for. We cannot agree with this analysis because to do so would require looking to a clause which was never a part of the contract and drawing inferences from the fact of its deletion and omission. Rather, we should simply look at the contract as it stood between the parties without any provision at all regarding the right of defendant to grant credit in excess of that guaranteed by plaintiff.

It is a rule that guaranty agreements are to be strictly construed in favor of the guarantor, and we must consider that there was no provision in the agreement giving the defendant any right to extend more credit to the debtor than plaintiff agreed to guarantee.

The plaintiff cites Wilson v. Espert, 90 Ill App 111. affd 190 Ill 629, 60 NE 923, in which case a seller sued a purchaser for specific performance of a contract for the sale of real estate. The printed contract provided that if the purchaser failed to perform the contract promptly and as specified, the earnest money should “at the option of the vendor” be forfeited as liquidated damages and the contract should be null and void. Before the contract was signed by the purchaser the words “at the option of the vendor” were deleted. The court held that the deletion took away from the seller his power to compel specific performance and left him only the right to retain the earnest money as liquidated damages.

In the case before us, as in Wilson, the deletion of certain provisions of the contract removed from the defendant the power to extend credit to Atlas-United in excess of $50,000 guaranteed by plaintiff. There seems to be no reason to vary from the normal rule that a court simply looks to the contract as ultimately executed, in attempting to ascertain its meaning. Looking thus at the contract and construing the guaranty most favorably for the guarantor, we must agree with the plaintiff’s argument. In considering the guaranty agreement the rule is that it must be strictly construed and the liability of a guarantor cannot be extended by construction. Continental Illinois Nat. Bank & Trust Co. v. Cardwell, 287 Ill App 227, 4 NE2d 770. In the agreement before us there is no provision with reference to the right of the bank to grant the debtor more credit than that specifically set out and guaranteed by plaintiff in the agreement. We must conclude that the defendant was not authorized to extend more credit to the debtor than the $50,000 set out in the agreement, and if he did so he would breach the guaranty agreement.

Since we have found that Patinkin’s actions did nothing to change the situation, it must logically follow that plaintiff was relieved of its obligations under the guaranty agreement when the defendant loaned the debt- or an additional $35,000 over and above the agreed guaranty of $50,000. Consequently, defendant was not entitled to any proceeds from plaintiff’s $50,000 certificate of deposit.

The judgment of the trial court in favor of defendant is reversed and the cause is remanded with directions to enter judgment in favor of plaintiff and to take any other and further proceedings consistent with this opinion.

Reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Claude W. Otkins, Defendant-Appellant.
    Gen. No. 52,253.
    First District, Fourth Division.
    September 17, 1969.
    Rehearing denied October 29, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (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 James Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was found guilty by a jury of attempt to commit rape. Judgment was entered and he was sentenced to a term of six to fourteen years. Appellant raises three points on appeal: (1) he was not proven guilty beyond a reasonable doubt because neither specific intent to commit rape nor a substantial step toward the commission of rape was proven; (2) the trial judge refused to give an instruction tendered by defendant covering certain items not covered in other instructions; (3) he was denied a fair trial because the prosecutor questioned him about his prior felony conviction.

EVIDENCE

Testimony of Complaining Witness:

On February 8,1966, she was a student at the University of Chicago, working for her Ph.D. in psychology. On that evening she attended a class which ended at 10:30 p. m. and then went to the library in the Psychology Building to do some reading. She left the library alone at about 10:45 intending to catch the University bus. She apparently missed the bus and decided to walk home, a distance of about eight blocks. As she was walking she heard someone running toward her from behind, and she began to run. She wasn’t quick enough and a man jumped onto her. She dropped her purse and briefcase at the moment of attack. She began struggling with him, and screamed for help. Several people came out of their houses but then returned without helping her when her attacker told the people that she was his wife.

The man with whom she was struggling was the defendant. He dragged her in the direction of a townhouse that was under construction at 5203 University. She struggled all the way, but she did not scream again. He shoved her through a doorway leading to the basement of the townhouse, but there were no stairs and she fell into the basement; he fell after her. He pushed her against the wall and told her to keep quiet. He put his hands around her neck and began to choke her. She told him that she had $10 in her purse and that he could have it. He then said something like, “At first I wanted your money, but now I want you.” She thinks he said this twice, once on the street and once in the basement. Defendant held her in the basement for about five minutes choking her; she tried to scream again but could not because she was being choked and she was having trouble getting her breath.

The police came and jumped into the basement. Defendant’s hands were on her neck until the police arrived. There were quite a few policemen; Mr. Arthur Howard and Mr. Irvin were among them. Defendant never left her sight from the instant he attacked her to the time the police arrived. She had quite a few scratches and bruises mainly on her legs; she had a scar around her neck where defendant’s hands had been pressing. Her blouse was torn and her slip somewhat tom.

Defendant did not grab her purse nor did he touch any intimate parts of her body. He did not attempt to cover her mouth with his hands or to cut off her cries. He did not try to kiss her. His body was about six inches from hers when they were in the basement; his body was not touching hers. He never tried to raise her dress.

She walked from 55th to 52nd Street along University; she was not walking with defendant. She does not remember defendant telling the police that she had his $10 bill. She did not state that she had a $10 bill in her purse. She had a $10 bill but spent some of it. She does not recall defendant telling the police to look in her purse. She never took money from defendant.

Testimony of Art Howard, called by the State:

He is an officer on the Chicago Police Department and was so employed on February 8, 1966. At about 11:00 p. m. that day he was patrolling in the vicinity of 52nd and University when he heard the screams of a woman. He was in a two-man squad car. He stopped in front of 5215 University. He heard the scream again and at that time there was a radio call about a woman screaming for help in the area. He got out of the car and went into 5213 University from where he thought the screams were emanating. He then heard another muffled scream and went to the 5215 building, a townhouse under construction. He shined his light into the basement of the building and saw two people against the east wall of the basement. Defendant had both hands around the complaining witness’ neck with the thumbs to the throat.

At that time defendant released the woman and ran toward the light. The officer said, “Where are you? We are police officers.” Defendant then ran over towards the wall, which had a narrow little window. Then he just stopped. Defendant said, “All I want is my money back.” He asked defendant why he was holding the woman in the building. Defendant stated that he was trying to get his money back from her. Defendant said that he had paid her for sexual intercourse; he said that he dragged her into the basement to get her off the street.

None of the police officers examined complaining witness’ purse to see if it contained $10.

When the police officer first put his light on the complaining witness she was flushed. She did not say anything; she was hysterical; she was trembling all over. He did not at any time see defendant’s hands any place on the complaining witness’ body except her neck.

Testimony of Claude W. Otkins, defendant:

He lives at 5535 South Drexel with his wife and daughter ; he is twenty-six.

At about 11:00 p. m. on February 8, 1966, he left' his house to get some cigarettes. He had about $115 in his pocket which was from a delayed vacation check from U. S. Steel; he had cashed the check earlier in the day at a currency exchange at 75th and Halsted. He walked east on the north side of 55th for three blocks until he got to University; he was going to Kimbark Shopping Center at 53rd and Kimbark. He came into contact with complaining witness at the corner of 55th and University; they arrived at a large puddle simultaneously and he stepped back to let her cross first. She said, “Thank you.”

Complaining witness slowed down after crossing the puddle and he caught up to her. She mentioned something about the weather, and defendant agreed with her. They continued to walk together. They walked together all the way to 53rd; they talked as they walked. She said that she did not feel like going home, and he asked her to have some drinks with him. They discussed it, and then he gave her $10. She asked what his intentions were. He said that he did not know, but that he was sorry if he had offended her. She said that he had not offended her, but she would like him to explain his actions. He said, “Well, I’m sorry. If there’s something I have done wrong in giving you this. . . . Well, then forget it and we can just, you know, part, because I was only going to get cigarettes anyway.”

She did not return the $10. She then said that they could go to her apartment, which was a couple of blocks away, but she did not mention the address. They had just arrived at the corner of 53rd Street and cars were coming, so he stepped back onto the curb to let the cars pass, but she kept going. He called to her but she kept going. He caught up with her about two houses down the street. He grabbed her by the arm and asked her what she was doing. He said that if she wanted to change her mind, okay, but he wanted his money back. At that time she grabbed his arm and began struggling and hollering. Somebody asked what the trouble was and he said that he was going to get his money back. He had a hold on her arm, but he released her and told her that he only wanted his money. During the struggle they fell and that is when his hold on her was broken. They both got up and she began to run. He caught her in front of a townhouse and grabbed her around the wrists again. They both fell into the basement. He helped her up and then she grabbed him by the lapels and said, “Please don’t hurt me.” He said, “I’m not trying to hurt you. All I want, lady, is my money.” She said, “Well, I haven’t got it on me. Your money is in my purse.” She said that her purse fell when they started to fight. He asked, “Why didn’t you give it to me when I first asked you?” She said, “You didn’t give me a chance. I was scared that you were going to hurt me.”

At this time there was a light shined into the basement. It was the police. They instructed him to climb out. He told them that he was trying to get his money back from the young lady in the basement. He said, “All you have to do is look in her purse and get my money.” No police officer looked in her purse.

During the struggles with complaining witness she was screaming at times, but he did not make any effort to cover her mouth. She never scratched him in the face or hit him. He never choked her. He never had any intention to rape the complaining witness. He had just been paroled for the same crime and he did not want to get in trouble.

OPINION

Defendant first argues that he was not proven guilty beyond a reasonable doubt in that there was insufficient proof of intent to commit rape and insufficient proof of the taking of a “substantial step” towards the commission of rape.

The crime of “Attempt” is specifically defined in the Criminal Code, Ill Rev Stats 1965, c 38, § 8-4 (a):

A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.

In the instant case the jury was presented with two inconsistent versions of the occurrences of the night in question. It is clear that the jury believed the account offered by the complaining witness, but defendant argues that her testimony does not show that he intended to commit rape.

It is well established that when intent to commit a specific crime is not admitted it can only be shown by surrounding circumstances because intent is a state of mind. People v. Coolidge, 26 Ill2d 533, 187 NE2d 694. Defendant argues that since it is admitted that he never struck or hit the complaining witness, never attempted to throw her to the ground, never attempted to kiss her, never touched any intimate part of her body, never attempted to lift her dress, never pressed his body against hers, and never exposed himself to her, there is no basis for finding that he intended to rape her, citing People v. Bush, 19 Ill2d 151, 166 NE2d 91.

However, in both Coolidge and Bush the court stated that if an accused admits or articulates his intent to commit a specific crime, that is sufficient to sustain a conviction under the “attempt” statute. In the instant case there was an articulation by defendant of his intent. Complaining witness testified that twice defendant said something like, “ [a] t first I wanted your money, but now I want you.” Defendant disparages this evidence, arguing that the witness was not sure of what was said. It was for the jury to determine the weight of the evidence. One of the factors to be considered by it was that the witness testified to the substance rather than the exact phraseology of defendant’s remark. The jury could find from defendant’s statement and the other circumstances that he intended rape.

Defendant also argues that he was not sufficiently proven to have taken a “substantial step” towards the commission of rape. Defendant presses this contention by attempting to show that the complaining witness offered no resistance and thus concludes that there could have been no attempt to rape. This argument is not supported by the evidence. Defendant himself testified that the complaining witness’ screaming caused him to try to keep her quiet and alerted some people on the street; the police received a call of a woman screaming on the street; and the police ultimately located defendant and complaining witness by the noise of her screams. The complaining witness testified that she resisted defendant’s attempt to drag her to the townhouse and that she sustained a scar on her neck. Defendant admitted that he struggled with her and dragged her. There was adequate evidence of resistance.

Further, defendant certainly took a substantial step towards commission of the offense when he attacked her on the street and dragged her into the townhouse basement. His defense that he merely wished to recover his $10 is not borne out by his own testimony. It is unclear whether he claimed that complaining witness put the $10 into her purse or kept it in her hand. However (still according to his own testimony), defendant did not attempt to retrieve the money when she dropped her purse in the street nor did he try to take it from her hand. Instead, he kept dragging her and they fell into the basement where, according to the testimony of the complaining witness and the police, he was choking her.

Defendant next argues that the trial judge improperly refused to give the following instruction tendered by him:

The Court instructs the Jury as a matter of law that if the evidence in this case can be reconciled upon either of two reasonable theories, one pointing to the guilt of the Defendant, and the other pointing to the Defendant’s innocence, it is the duty of the Jury to adopt and follow the theory which points to innocence and find the Defendant not guilty.

This instruction is evidently based on the following statement from People v. Magnafichi, 9 Ill2d 169, 173, 137 NE 2d 256:

To justify a conviction, circumstantial evidence must be of such a nature as to produce a reasonable and moral certainty that the accused committed the crime. Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a serious and grave doubt of guilt, a conviction cannot stand. People v. Taylor, 410 Ill 469; People v. Widmayer, 402 Ill 143; 15 ILP, Criminal Law, sec 912.

But in the instant case the Magnafichi rule does not apply because the testimony was not limited to circumstantial evidence, as there was direct evidence of intent, and the jury was therefore required to resolve the credibility of the witnesses rather than determine which theoretical explanation of the circumstances was most plausible. The “reasonable doubt” instruction given by the trial judge was the only proper instruction in the setting of this case, and we find no error in his refusal to give the instruction requested by defendant.

Defendant’s final contention is that he was denied a fair trial because the prosecutor cross-examined him about his prior felony conviction. The cross-examination amounted to three short questions and only had the effect of repeating facts which defendant’s own attorney had elicited from him moments previously. Since the defendant had been the first to mention his prior criminal record and since there was only the single repetition of it by the prosecutor which was quickly halted by objection, we find that there was no prejudice to defendant.

Defendant also argues that he was prejudiced by an incident of laughing that occurred at the trial. It appears that the arresting officer was in the courtroom and laughed during the examination of the defendant by his counsel. Counsel called the attention of the court to it, but dropped the matter when the judge stated that he was not aware of anyone having laughed. The fact that the judge did not see or hear the laughing incident is adequate showing that it was very minor indeed, and we can perceive no prejudice to the defendant.

From all these circumstances we find that there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant was guilty of an attempt to commit rape. We believe that defendant received a fair trial and was proven guilty beyond a reasonable doubt. Thus the judgment of the trial court is affirmed.

Judgment affirmed.

ENGLISH and McNAMARA, JJ., concur.

       Ill Rev Stats 1965, c 38, § 11-1:
      (a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, hy force and against her will, commits rape.
      (b) Sexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ.

       See IPI — Criminal 3.02 and Committee Note


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles D. Baker, Defendant-Appellant.
    Gen. No. 52,933.
    First District, Fourth Division.
    September 17, 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.
    Edward Y. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, David C. Baylor, and James Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

(1) Count I — Armed Robbery. Ill Rev Stats (1967), c 38, § 18-2.

(2) Count II — Aggravated Battery. Ill Rev Stats (1967), c 38, § 12-4 (a) (causing great bodily harm).

(3) Count III — Aggravated Battery. Ill Rev Stats (1967), c 38, § 12-4 (b) (1) (using a deadly weapon).

JUDGMENT

After a bench trial, defendant was found guilty of all three offenses. He was given concurrent sentences of 12 to 18 years on the armed robbery charge, and 1 to 5 years on each charge of aggravated battery.

CONTENTIONS ON APPEAL

1. The charged offenses arose out of the same transaction or series of transactions and, therefore, only one sentence should have been imposed.

2. The sentences imposed are excessive.

EVIDENCE

Gerald O’Brien, for the State:

At approximately 11:30 p. m. on April 15, 1967, he was leaving the 2811 Club, a tavern at Fifth and California Avenues. When he had walked 15 to 20 feet down the street toward his car to go home, he was hit with a knife in the back of the neck; then he turned around and was hit on the jaw, causing him to fall to the ground. Defendant, whom he had never seen before, stood over him, grabbed his watch, and cut at him with a knife. (He identified both the watch and the knife, which were introduced into evidence.)

Defendant told him to put his money on the sidewalk. When he reached into his pocket to get the money, defendant again sliced at him with the knife. His shirt was cut by the knife and, during further attempts to fend off the knife, his finger and the front of his neck were cut. Defendant then pocketed the knife and started kicking him, when two police officers came to his aid.

He had had three or four drinks at the tavern and was sober. When he left there he was alone, but there were quite a few people on the street. He never swung at defendant, although defendant never got his money. He has a 3-inch scar on the back of his neck resulting from the first blow.

Police Officer Alvin Young, for the State:

On April 15, 1967, while in a squad car at California and Madison, he first saw Gerald O’Brien on his hands and knees, being kicked about the head and shoulders by defendant. O’Brien’s face and head had been bloodied. The witness and his partner, Garrison, restrained defendant and searched him, finding the knife in evidence. At the police station, Officer Garrison searched defendant and took a gold watch from his pocket.

Police Officer Millard Garrison, for the State:

He corroborated the testimony of Officer Young in all essentials.

Defendant, Charles D. Baker:

On the evening in question he was working at the 2811 Club. He noticed that O’Brien was interfering with couples at the bar and defendant was told to ask him to leave, which he did. Later he saw O’Brien outside, where he “had a woman up against the fence.” The witness hit O’Brien with his hand, but did not strike or cut him with a knife. When the police then appeared and stopped the fighting, he had no knife or weapon in his hand.

He owned the knife in evidence, but hadn’t seen the watch before. He did not know the woman to whom O’Brien was talking, but he did hear her say, “Let me alone.” She ran as soon as the witness hit O’Brien with his fist and knocked him down. The witness had been drinking, but was not intoxicated to the extent of not knowing what he was doing. He didn’t know whether he had kicked O’Brien in the face and shoulders. He denied that he used a knife, asked for money, or took the watch.

At the hearing in aggravation and mitigation, the State’s Attorney advised the court that defendant had been convicted in 1939 for robbery and two charges of theft, and sentenced to 1 to 20 years. After parole in 1943, he was next sentenced in 1949 to 60 days for tampering with an auto. In 1952 he was convicted by a Georgia Federal Court and sentenced to 3 years for interstate transportation of a stolen vehicle. In 1957 he was sentenced in Illinois to 1 to 10 years on a charge of larceny. Defendant was gainfully employed from 1965 to the time of this arrest in 1967.

OPINION

Defendant maintains that the offenses for which he has been adjudged guilty arose out of the same transaction or series of transactions and, therefore, mutiple sentences should not be imposed. He cites several authorities for this proposition, placing primary reliance on People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299. In that case there was one indictment with two counts, one charging forcible rape, the other, incest. The defendant was found guilty on both counts, and the judge imposed concurrent sentences of 5 years for rape and 19 to 20 years for incest. The court stated at page 259:

There is no doubt that it was proper to join the two charges in a single indictment, and to try them together, since they were both based upon the same occurrence. (People v. Wilfong, 19 Ill2d 406, 408; People v. Smith, 11 Ill2d 280, 284; People v. Stingley, 414 Ill 398.) The reach of the question that the defendant raises, however, extends beyond the accommodations that have been made, in criminal as well as civil cases, in order to avoid variances between pleading and proof. That question is whether two separate punishments can be imposed for a single act.

It then determined that although the two offenses had certain different elements, there did exist a common denominator, the element of unlawful carnal knowledge.

The court in Duszkewycz discussed related precedents that shed light on the specific issue but were not controlling. The closest case, People v. Stingley, 414 Ill 398, 111 NE2d 548, dealt with the legality of two consecutive sentences entered upon two counts of the same indictment, one an assault with intent to rape, the other an assault with intent to murder, “both of which arose out of a single series of acts committed upon the same victim at the same time and place.” (P 399.) The court in the Stingley case found that imposition of consecutive, as distinguished from concurrent, sentences would prejudice defendant and violate his constitutional rights, and held that although consecutive sentences had been imposed, they were being served concurrently and “the satisfaction of one will satisfy both.” (P 405.)

People v. Schlenger, 13 Ill2d 63, 147 NE2d 316, was also discussed in Duszkewycz. That case concerned a defendant who had pleaded guilty to armed robbery and grand larceny in separate counts relating to the same occurrence; concurrent sentences were imposed. There, the court determined that the judgment should have been only for the greater offense (armed robbery, which necessarily included the lesser offense of larceny). In so doing, it recognized “the non sequitur of the proposition that because a sentence is required to run concurrently, it necessarily is not prejudicial,” finding that there would be prejudice to the defendant in connection with his application for parole. The judgment for the lesser offense was therefore set aside.

Although Duszkewycz did not concern an included offense, and was therefore not directly in point with either of these cases, its reliance on them is evident. For example, the court stated at page 261:

The Stingley case makes it clear that two punishments can not be imposed for a single act, even though different ingredients are involved in the two crimes. In that case, however, the two sentences were identical, and it was not necessary to decide which should be set aside. It was sufficient to hold, as the court held, that “the satisfaction of one will satisfy both.”

It then decided that only one sentence should be imposed, that for the greater offense, and the judgment on the count charging incest was reversed.

The case at bar contains three counts, one for robbery and two for aggravated battery (causing great bodily harm and using a deadly weapon). Applying the guidelines and limitations laid down in the cases, the disposition of this case depends primarily upon whether the offenses charged in the separate counts resulted from the same conduct. The provision of the Criminal Code relating to the imposition of sentences is chapter 38, section 1-7(m) Ill Rev Stats (1967), which states:

When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.

The term “conduct” is defined in section 2-4 as “an act or a series of acts, and the accompanying mental state.” The Committee Comments on section 1-7 (m) (SHA, c 38, § 1-7 (m)), state that the language of that section was intended to codify the holding in Schlenger, supra, so that if the offenses charged resulted from the same conduct, the defendant may not be sentenced on more than one, either concurrently or consecutively.

In the instant case, O’Brien testified that defendant hit him from the rear, knocked him to the ground, and then cut him with a knife while taking his watch and demanding his money. This concluded, defendant proceeded to kick him about the head and shoulders until the police arrived at the scene. The victim’s testimony as to the beating that was inflicted on him was corroborated by the two policemen, and a search of defendant subsequent to his arrest produced the victim’s watch.

We are of the opinion that defendant’s conduct constituted armed robbery and one separate and distinct offense of aggravated battery. The initial striking of the victim by defendant, followed by the use of the knife, together constituted the use of force which was an element of the armed robbery. The judgment on the second count of aggravated battery (using a deadly weapon) is, therefore, reversed. It was after the robbery had been completed, however, with the taking of the watch, that defendant committed a separate crime by kicking the victim in the head, causing great bodily harm. In affirming convictions for two different crimes, we do not mean to imply that defendant’s acts of battery and robbery were wholly unrelated in time and fact; the evidence clearly indicates that there was a connection. However, the “conduct” in perpetrating the two offenses was not the same conduct as it is defined in the statute quoted above; the acts, and especially their accompanying mental state, were different, even though closely joined in time.

Our decision (as to the two judgments we are affirming) is distinguishable from other cases which have reversed separate convictions arising out of the same conduct or transaction. People v. Boyd, 105 Ill App2d 345, 245 NE2d 587; People ex rel. Starks v. Fry, 39 Ill 2d 119, 233 NE2d 413; People v. Squires, 27 Ill2d 518, 190 NE2d 361; People v. Schlenger, 13 Ill2d 63, 147 NE2d 316. Those cases all found that when a single course of conduct was the basis for the separate convictions, the prejudicial punishment must be reversed. We find that the conduct in the instant case was not a single transaction or act but two separate acts or series of acts, and that two convictions with concurrent sentences are proper, one for armed robbery and one for aggravated battery. See People v. Weaver, 93 Ill App2d 311, 236 NE2d 362; People v. Mitchell, 101 Ill App2d 380, 243 NE2d 358; People v. Baby, 40 Ill2d 392, 240 NE2d 595.

Defendant also contends that the sentences imposed are too severe and should be reduced. Having reversed one aggravated battery judgment, we are concerned with two concurrent sentences, one of 12 to 18 years for armed robbery, the other of 1 to 5 years for aggravated battery.

Defendant cites People v. Lillie, 79 Ill App2d 174, 223 NE2d 716; People v. Jones, 92 Ill App2d 124, 235 NE2d 379; and People v. Marshall, 96 Ill App2d 124, 238 NE2d 182. We have reviewed these decisions, but con-elude that the nature of the offenses in the instant case, and the attendant circumstances, including defendant’s criminal record, require that we affirm the sentences as imposed (except as previously noted). We consider applicable the statement of the court in People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (citing People v. Smith, 14 Ill2d 95, 150 NE2d 815), that a reviewing court “should not disturb the sentence unless it clearly appears . . . that the penalty is manifestly in excess of the proscription of section 11 of Article II of the Blinois Constitution which requires that all penalties shall be proportioned to the nature of the offense.”

The judgments and sentences for armed robbery and for one count of aggravated battery (causing great bodily harm) are affirmed. The judgment for the other count of aggravated battery (using a deadly weapon) is reversed.

Affirmed in part, reversed in part.

DRUCKER, P. J. and McNAMARA, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Brownlow and Larry Brownlow, Defendants-Appellants.
    Gen. No. 53,417.
    First District, Fourth Division.
    September 17, 1969.

      David B. Kahn, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James J. Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Aggravated battery. Ill Rev Stats (1967), c 38, §§ 12-4(a) and 12-4 (b) (6).

JUDGMENTS

After a bench trial, both defendants were found guilty of aggravated battery in causing great bodily harm to Edwin Cardish (§ 12-4(a)) and defendant James Brown-low was found guilty of aggravated battery in committing a battery upon Leo Marks, knowing him to be a peace officer (§ 12-4 (b) (6)). James Brownlow was given concurrent sentences of one year in the House of Correction. Larry Brownlow was sentenced to one year at the Illinois State Farm.

ISSUES RAISED ON APPEAL

1. Defendants were not proven guilty of the battery of Edwin Cardish.

2. Defendants did not knowingly waive their right to a jury trial.

EVIDENCE

When the case was called for trial, with both defendants and their attorney (Asst. Public Defender Scheffler) present in open court, the following took place:

THE COURT: “State ready?”
MR. LANE: “State is ready.”
(Discussion off the record between Mr. Scheffler and the defendants.)
THE COURT: “Mr. Public Defender, are you ready?”
MR. SCHEFFLER: “Ready.”
THE CLERK: “They are all charged with aggravated battery.
“James Brownlow has two counts of aggravated battery, all on felonies. Ready for a hearing?”

Edwin Cardish, for the State:

On March 13,1968, at approximately 9:45 p. m., he was in the vicinity of 3153 North Broadway when the two defendants (identifying them) came after him, swung at him, and called him names. They knocked him down and pushed him into a window. He ran into a garage and then realized, from the blood coming down his side, that his back had been cut. He went to the hospital where the wound required a tube to be inserted to drain off the blood and twelve stitches to close it. He also suffered a laceration in the head, requiring one stitch.

On cross-examination, the witness denied confronting or starting any fight with James Brownlow. He identified Larry Brownlow as the one who had pushed him through the window, and claimed that he did not know the Brownlows personally nor had he ever seen them before March 13,1968.

Police Officer David Paul, for the State:

Responding to a call about a stabbing, he was advised by a man at the scene that, after hearing breaking glass, he had seen two boys run into a nearby building. The man lived in that building and opened the outer door for the investigators (witness and Officer Royce) to enter the building. When they knocked on a door, it was opened by Larry Brownlow, who told them, “you have no right to be here. You don’t have a warrant.” After a little verbal abuse, Larry said he would cooperate, as they had nothing to hide, and the officers were admitted into the apartment. The Brownlow brothers and a Mr. Erb were in the apartment, and the officers questioned them as to their whereabouts at the time of the incident. They stated they had been in the apartment all evening, and denied the commission of any offense. The witness then left, but, after getting a further description of the clothing worn by the assailants, he returned to the apartment and arrested the three occupants. (The charge was later dropped as to Erb.)

MR. SCHEFFLER: “Ready.”
MR. LANE: “The State will ask leave to file an additional charge of aggravated battery as a misdemeanor.”
THE COURT: “You are asking to amend?”
(Discussion off the record between the Court and Mr. Lane.)
THE CLERK: “Ready for trial?”
MR. SCHEFFLER: “Yes.”
THE CLERK: “What is the plea?”
MR. SCHEFFLER: “Not guilty, jury waived.”
MR. LANE: “Motion to amend on its face, Your Honor.”
THE COURT: “Leave granted. Swear the witnesses.”

Whereupon, the case proceeded to trial.

Police Officer Leo Marks, for the State:

Four uniformed police officers, including Officers Royce and Paul and Sergeant Corcoran, returned to the apartment. While the witness was searching Larry Brownlow, James Brownlow broke loose from the Sergeant and kicked the witness in the groin, saying that he would kill him.

James Brownlow, for the defense:

He had never seen Edwin Cardish until the evening of March 13, 1968, in the vicinity of 3153 North Broadway. He and his brother, Larry, and Mr. Erb were walking along the street when Erb accidentally bumped into Cardish. Cardish then came up behind the witness and started laughing. The witness turned around and Cardish swung at him, whereupon Larry shoved him and he went through the glass.

Cardish didn’t make contact with the swing, but it was the first blow. After the incident, the Brownlows and Erb ran home not knowing that Cardish was injured.

The second time the police officers came to the apartment he was involved in a scuffle with Officer Marks, but he did not kick him.

Larry Brownlow, for the defense:

Erb had bumped into Cardish and then apologized. Cardish laughed at him. Cardish then swung at James and when he grabbed the witness’ lapels, the witness “just shoved him through the window.” He didn’t mean to shove him through the window. Cardish took the first swing, but he wasn’t certain if it made contact with his brother.

He didn’t see Officer Marks in pain or on the floor of the apartment at any time. He told the officers, on the evening of the incident, that he never left the house because he was afraid of the police.

OPINION

Defendant James Brownlow does not contend that the evidence was insufficient to establish his guilt in the battery of Officer Marks. Both defendants do argue that the proof failed to establish beyond a reasonable doubt that they were guilty of the charge relating to Edwin Cardish. We conclude, however, that the testimony of the State’s witnesses was adequate, if believed, to justify the trial court’s finding, and the credibility of the witnesses is, of course, a matter for the trier of fact.

Defendants’ principal point is that they did not knowingly waive their right to a jury trial. This right, which is of constitutional origin, has been given statutory implementation as follows:

Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court. (Emphasis supplied.) Ill Rev Stats (1967), c 38, § 103-6.

The record in this case discloses. that defense counsel advised the court that a jury trial was waived, and that the trial court directed no question regarding the waiver to either of the defendants nor to their attorney. When the latter said, “jury waived,” the court immediately proceeded with the trial. It has been held repeatedly that it is the responsibility of the trial judge to insure that the waiver of a jury trial is knowingly and understandingly made. E. g., People v. Wesley, 30 Ill2d 131, 195 NE2d 708. The satisfaction of this requirement was discussed in People v. Richardson, 32 Ill2d 497, 207 NE2d 453 which upheld the jury waiver on the facts of the case. In Richardson, counsel indicated that there was a jury waiver, and the defendant remained silent. It was twice stated in court in the presence of defendant that there was a jury waiver, and during a recess that occurred after these announcements, there was an “opportunity [for defendant and his counsel] to discuss the merits of this decision.” There was also a written waiver submitted, evidence of further deliberation on this point. Richardson added a note of caution, nonetheless, by stating that “the trial court might well have dwelt at more length on this matter” to insure that waiver was knowingly and understandingly made.

The requirement that a jury waiver by defendant must be knowingly made, has been held to impose a duty on the trial judge to ascertain to his satisfaction that the waiver was understandingly made. People v. Turner, 80 Ill App2d 146, 225 NE2d 65. That requirement was strictly applied in Turner, supra, since the waiver was held not to have been understandingly made in spite of the fact that the judge had requested counsel to advise defendant of his right to jury trial and had also inquired of defendant whether he understood what a jury trial was. By analogy to the acceptance of a plea of guilty, see People v. Mims, 42 Ill2d 441, 248 NE2d 92, in which the court cited McCarthy v. United States, 89 S Ct 1166, to emphasize “the importance of personal inquiries addressed to the defendant to ascertain directly his understanding of the nature of the charge against him.” See also Boykin v. Alabama, 395 US 238.

The State has attempted to interpret differently the cases cited by defendant, but in our opinion it has not impaired the validity of his position. Richardson, supra, which upheld a waiver, did involve a recess, but, unlike that in the instant case, it took place while the jury waiver was under discussion. The present facts show that the recess occurred before any mention was made of jury waiver. It would be presumptuous to attach to this recess any significance that would link it with the jury waiver.

In Turner, supra, the defendant was an illiterate who specifically stated that he did not know what a jury trial was. However, this was not the ground for the reversal; rather, it was because the trial court had not adequately informed the defendant of the nature of a jury trial so as to enable him to waive it understandingly, if he so desired. There was an initial attempt, considered inadequate, in that case, to inform the defendant, whereas, in the case at bar, no such effort was made.

The State urges that defendants’ silence before the court should be construed as an acquiescence to their counsel’s statement that a jury was waived, citing People v. Melero, 99 Ill App2d 208, 240 NE2d 756. We recognize that whether a jury waiver has been knowingly and understandingly made, depends upon the facts and circumstances of each case, and there can be no precise formula for determining the issue. People v. Palmer, 27 Ill2d 311, 189 NE2d 265; Richardson, supra. We must, however, disagree with the Melero opinion to the extent that it stands for the proposition there stated (pages 211-212) that “the trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client.” We believe that the court cannot, in that way, delegate its responsibility to assure to a defendant his understanding of so basic a right as that of trial by jury.

We conclude that the trial court in the instant case did not fulfill its obligation in this regard, so the judgments of the Circuit Court are reversed and the cause remanded for a new trial.

Reversed and remanded.

DRUCKER, P. J. and MeNAMARA, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack Howard, Junior, Defendant-Appellant.
    Gen. No. 53,721.
    First District, Fourth Division.
    September 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

CRIME CHARGED

Robbery. Ill Rev Stats (1965), c 38, § 18-1.

JUDGMENT

On a plea of guilty, defendant was sentenced to a term of 3 to 10 years, concurrent with his sentence under a separate indictment for deviate sexual assault.

PROCEEDINGS ON APPEAL

On May 7, 1969, the attorney appointed by the trial court to represent defendant on appeal, filed a petition for leave to withdraw from the case on the ground that he was unable to find any legal points which were arguable on their merits. He also filed a brief, covering possible issues, in compliance with Anders v. California, 386 US 738. Copies of the petition and brief were served by mail upon defendant in the penitentiary on April 29,1969, and on May 12 he was notified that he might have until July 11, 1969, to file any points he might choose in support of his appeal. Defendant has filed nothing additional.

Counsel’s brief covers the possible point that the trial court “did not fully admonish the defendant as to the significance and consequences of his change of plea from not guilty to guilty.”

THE RECORD IN THE TRIAL COURT

Shortly after indictment, defendant was released on bail. He was therefore in a position to participate freely in the preparation of his defense by his privately retained attorney, and it appears that he did so.

On August 14, 1967, while the case was awaiting trial, defendant’s counsel presented a petition requesting the court to conduct a hearing to determine defendant’s competency to stand trial. The court then proceeded with such a hearing and a jury was impanelled for the purpose. Testimony and arguments of counsel were heard, and the jury returned a verdict finding defendant competent, upon which verdict judgment was entered.

Defendant was rearraigned and entered a plea of not guilty. He was then furnished with the names and addresses of the State’s witnesses.

After repeated continuances, the case came up for trial on March 14, 1968, at which time the following colloquy took place:

DEFENSE ATTORNEY: “If your Honor please, this is the defendant Jack Howard, Junior, who is charged with the offense of robbery in Indictment No. 67-715. Judge, at this time Jack Howard, Jr. after having had a conference with me advises me that he wishes to withdraw his plea of not guilty to Indictment No. 67-715 and to enter a plea of guilty. I have advised him of the consequences of his plea, your Honor.”
THE COURT: “Mr. Howard, you have heard Mr. Blair advise me that at this time you are changing your plea of not guilty on this indictment, Indictment No. 67-715, to one of guilty. Is that correct, sir?”
DEFENDANT: “Yes.”
THE COURT: “Do you know that when you plead guilty you automatically waive your right to a trial ?”
DEFENDANT: “Yes.”
THE COURT: “Either by me or twelve people in that box. Do you know that, sir?”
DEFENDANT: “Yes.”
THE COURT: “And knowing that do you still persist in your guilty plea ?”
DEFENDANT: “Yes.”
THE COURT: “Before accepting your plea it is my duty to advise you that on your plea of guilty to this indictment charging you with robbery you may be sentenced to the penitentiary for any term of years not less than one and not more than twenty years. Do you understand that, sir?”
DEFENDANT: “Yes.”
THE COURT: “And knowing that do you still persist in your guilty plea ?”
DEFENDANT: “Yes.”

Thereupon, the court found defendant guilty and entered judgment. At a hearing in mitigation and aggravation, the facts of the robbery were stipulated, including the fact that while defendant was dragging the woman victim into a gangway with his hand over her mouth, he told her to shut up or he would kill her. In mitigation, it was pointed out that defendant was 18 years old. Sentence was then imposed.

To the point raised in defense counsel’s brief, the following are pertinent:

The Code of Criminal Procedure, section 115-2 (Ill Rev Stats (1967), c 38, § 115-2):
Pleas of Guilty, (a) Before or during trial a plea of guilty may be accepted when:
(1) The defendant* enters a plea of guilty in open court;
(2) The court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.
Supreme Court Rule 401 (b) (36 Ill2d 167; Ill Rev Stats (1967), c 110A, § 401 (b)) :
(b) Procedure on Plea or Waiver. The court shall not permit a plea of guilty or waiver of indictment or of counsel by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands . . . the nature of the charge against him, and the consequences thereof if found guilty, .... The inquiries of the court, and the answers of the accused to determine whether he . . . comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. . . .

A number of cases have considered these requirements. See People v. Mims, 42 Ill2d 441, 248 NE2d 92 (citing McCarthy v. United States, 89 S Ct 1166); People v. Ballheimer, 37 Ill2d 24, 224 NE2d 811; People v. Kontopoulos, 26 Ill2d 388, 390, 186 NE2d 312; and People v. Doyle, 20 Ill2d 163, 169 NE2d 250.

In the Mims opinion, the court expressed our feeling about the instant case when it said:

After advising the defendant that a change of plea would waive a jury trial, and describing the range of potential sentences, the trial judge asked: “Do you persist in your plea of guilty?” Nothing before us suggests that the defendant’s affirmative response to this question was unintended or in any way equivocal.

We conclude that there was a full compliance, on the part of the court, with the necessary questioning of this defendant as called for by the statute, the rule and the cases. The point raised is not arguable on its merits within the mandate of Anders, supra.

In addition to considering the brief filed, we have made “a full examination of all the proceedings” as required by Anders. A point frequently raised in this court — that the punishment is excessive — is unavailable to this defendant, in our opinion. People v. Taylor, 33 Ill 2d 417, 424, 211 NE2d 673.

We find, therefore, that there are no legal points “arguable on their merits,” and that the appeal is “wholly frivolous.” See Anders, supra.

Defendant’s attorney is given leave to withdraw, and the judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and LEIGHTON, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Rebecca L. Danforth, Plaintiff-Appellee, v. Checker Taxi Company, Inc., et al., Defendant-Appellant.
    Gen. No. 53,009.
    First District, Third Division.
    September 18, 1969.
    Rehearing denied October 23, 1969.

      Jesmer and Harris, of Chicago (Richard C. Smilgoff, of counsel), for appellant.
    Sheldon Hodes, of Chicago (Alan J. Scheffres, of counsel) , for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a proceeding under section 72 of the Civil Practice Act (Ill Rev Stats, c 110, §72 (1967)), the trial court vacated an order dismissing a personal injury suit because of the failure of the plaintiff to answer interrogatories submitted by the defendant in accordance with the provisions of Supreme Court Rule 219(c) (Ill Rev Stats, c 110A, § 219 (c) (1967)). The court found that there was negligence on the part of plaintiff’s attorney in failing to comply with the court’s orders, but evidently considered dismissal of the suit too drastic a remedy and instead entered an order vacating the judgment upon condition that plaintiff pay $100 to the Clerk of the Court as costs and $100 to the defendant for its expenses and attorney’s fees. The Clerk accepted, but the defendant refused the amount tendered and thereupon the court entered the order of vacation. The events leading to entry of the order are stated in the order and we here present the substance thereof.

On February 20, 1967, the plaintiff filed suit for personal injuries against the Checker Taxi Company (Checker). On March 27, 1967, after filing its appearance and answer in due course Checker served plaintiff with written interrogatories to be answered by her and filed a copy thereof with the court. Pursuant to Supreme Court Rule 213(c) (Ill Rev Stats, c 110A, § 213(c) (1967)), either a sworn answer or an objection to each interrogatory was required to be filed within twenty-eight days after service on the plaintiff. Plaintiff did not answer. On April 27, 1967, defendant served plaintiff with notice that her answers were overdue and filed a copy of the notice with the court. Plaintiff still did not answer and the defendant served her with a notice of motion supported by affidavit that on August 4, 1967, a motion would be made to strike the complaint and dismiss the cause. On that day the court entered an order requiring the interrogatories to be answered on or before September 1, 1967. Plaintiff failed to obey the order and defendant again served her with a notice of motion supported by affidavit for a hearing on September 26, 1967, to strike the complaint and dismiss the cause. The plaintiff denied receiving the notice and was not present at the hearing on the motion. On September 26 the court entered an order requiring plaintiff to answer the interrogatories on or before October 24,1967, and the matter was continued without further notice to October 25th. Plaintiff failed to comply with that order and on October 25, 1967, the matter again came before the court and again neither the plaintiff nor her attorney were present. Thereupon the court dismissed the suit on motion of defendant. The only denial by plaintiff that notices were received, as hereinbefore stated, was with respect to the notice of September 26, 1967, and notwithstanding that denial, the court found that the notice was in fact served on plaintiff. We accept the court’s finding in that respect.

On January 2, 1968, the plaintiff filed her petition to vacate the order of dismissal and to reinstate the cause pursuant to section 72. The defendant replied and the matter was set for hearing on February 13, 1968. Plaintiff did not appear even then and the hearing was continued to the following day. On February 14th the matter was continued to the 16th, at which time it was taken under advisement and on February 26, 1968, pursuant to leave of court plaintiff filed her answers to defendant’s interrogatories and the court entered an order vacating the order of October 25, 1967, on the conditions hereinbefore set forth.

Defendant contends that relief under section 72 of the Civil Practice Act is not available to plaintiff because her petition does not adequately allege that she was free from fault in failing to inform the court of facts which would have prevented rendition of the judgment, and that even if the sufficiency of the petition is admitted, the court’s finding of negligence on the part of plaintiff precludes relief.

Section 72 is a proceeding which took the place of those extraordinary writs in which relief was granted after the expiration of the term. It is a proceeding separate and apart from the proceeding in which the judgment complained of was rendered. It enables a party to bring before the court facts not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294; Glenn v. The People, 9 Ill2d 335, 137 NE2d 336. A litigant may not avail himself of the remedy provided for in section 72 unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719; Brockmeyer v. Duncan, supra. As in any civil case it is necessary that the petitioner allege and prove a right to the relief sought. Where the petition fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief, it is subject to a motion to dismiss. Fennema v. Vander Aa, 42 Ill2d 309, 247 NE2d 409; Brockmeyer v. Duncan, supra. Plaintiff’s petition in the case before us alleges nothing that can reasonably be said to excuse her failure to file answers to the interrogatories in accordance with the rules of court and the orders directing her to do so. It is argued however that fundamental fairness demands that litigation be disposed of on the merits and it is on that basis that the plaintiff really rests her case.

To have a case tried on its merits is, of course, the desirable goal, but we must also have rules relating to procedure and even statutes of limitation. Courts are reluctant to dismiss suits for failure to comply with procedural rules and court orders intended to enforce them, but there are circumstances under which that must be done or the whole system will bog down. That which would best serve the interests of the dilatory party is not the only factor to be considered. The argument that fundamental fairness demands a trial on the merits might be persuasive if urged in the trial court before the expiration of the thirty day period, the current substitute for term time.

Disregard for procedural rules intended to expedite the disposition of litigation can only contribute to the problem those rules were designed to ameliorate. Considering the enormous backlog of cases confronting our courts, due primarily to the vast increase of personal injury litigation, we cannot be indifferent to procedural rules such as those here involved. A general understanding that section 72 was always available for relief regardless of neglect in failing to comply with court orders would add to the case load and penalize those who obey the court’s orders by subjecting them to further delay. We proceed to consider the plaintiff’s argument that the negligence of her attorney should not be imputed to her.

Under our system of representative litigation the general rule is that the client is bound by the acts and omissions of his lawyer-agent in the prosecution of a remedy. People v. Brown, 39 Ill2d 307, 235 NE2d 562. To have it any other way would lead to chaos. Courts could not rely on facts stipulated, admissions noted or many other matters in which our courts accept the lawyer’s statements as binding on his client. In the instant case notices were given to the plaintiff’s attorney and were ignored. Even after the court’s orders of August 4, 1967, and September 26, 1967, plaintiff’s attorney still did not come into court until after the expiration of the time allowed for compliance. The court found that on one occasion the plaintiff herself was notified. To hold that a proceeding under section 72 could be invoked to set aside a judgment on a record of neglect such as we have here would render all judgments precarious.

Plaintiff has called our attention to cases in which judgments have been set aside in section 72 proceedings. None of them are comparable to the instant case.

The order granting the plaintiff’s petition to vacate the order dismissing the suit is reversed.

Order reversed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Locklund, Defendant-Appellant.
    Gen. Nos. 53,603-53,605. (Consolidated.)
    First District, Third Division.
    September 18, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE CRAVEN

text:
    People of the State of Illinois on the Relation of James John Hilger, Plaintiff-Appellee, v. Maude Myers, Director of Personnel, State of Illinois, et al., Defendants-Appellants.
    Gen. No. 52,442.
    First District.
    September 22, 1969.

      William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole, Bernard Genis, and John J. George, Assistant Attorneys General, of counsel), for appellants.
    Richard F. McPartlin, of Chicago, for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This is an appeal from a judgment ordering issuance of a writ of mandamus directing Maude Myers, Director of Personnel; John E. Cullerton, Director of Labor; Milton Radice, Chief of Fiscal and Office Administration, Bureau of Employment Security, Division of Unemployment Compensation, Department of Labor; Michael J. Newlett, Auditor; and Adlai Stevenson, III, Treasurer of the State of Illinois; and their respective successors in office to do all acts necessary and requisite to pay James John Hilger, an accountant in the Department of Labor of the State, salary from April 20, 1966, to December 1, 1966, at his salary rate of $675 per month, less withholding tax and pension deductions.

Disciplinary charges were filed against Hilger March 28, 1966. Hearings were had. On November 18, 1966, the Civil Service Commission rendered its decision suspending him for 45 days, from March 6, 1966, through April 19, 1966, but retaining him in his former position effective April 20, 1966. He returned to work December 1, 1966, from which date he had received his salary. However, his request for payment of his salary for the period from the expiration of his suspension to the date of his return to duty, April 20, 1966, to December 1, 1966, was denied.

Hilger brought a suit for writ of mandamus to compel defendants to pay his salary for the period April 20 to December 1, 1966. After denying motions to dismiss the suit the court, on hearing defendants’ motions to strike plaintiff’s reply to defenses asserted in defendants’ answer, struck the defenses and ordered issuance of the writ of mandamus compelling payment of plaintiff’s salary for the period April 20 to December 1, 1966.

Appellants assert as grounds for reversal that mandamus is not the proper remedy and that there is a right of setoff of outside earnings which the suspended employee could or did earn so as to mitigate damages and of moneys paid for salary for a de facto employee hired in his absence. These substantially were the grounds of the defenses made in the trial court which the court held insufficient as a matter of law. Defendants also had made an offer of proof of earnings Hilger did earn, or could have earned, and salary paid by the Department to an additional employee to do Hilger’s job during the period in question.

As the basis for the contention that mandamus will not lie, appellants assert that plaintiff did not show a clear legal right to the recovery claimed and that there was no duty existing on the part of the defendants to pay the claim. They also contend that the proper remedy was to file a claim against the State in the Court of Claims.

Plaintiff, in the trial court, claimed to be entitled to the back salary by virtue of a specific section (section 11) of the Personnel Code (Ill Rev Stats 1965, c 127, par 63b111). The relevant portion of that section states:

“If the Commission certifies a decision that an officer or employee is to be retained in his position and if it does not order a suspension for disciplinary purposes, the officer or employee shall receive full compensation for any period during which he was suspended pending the investigation of the charges.”

Since the Commission did order a suspension of Hilger for disciplinary purposes for 45 days, it is obvious that the above-quoted portion of section 63111 of the statute would give no basis of salary recovery to him. It is wholly inapplicable to the facts of this case. However, this conclusion does not terminate the considerations here.

By the other provisions of section 63b111 of the statute, the Legislature has provided a means and the mechanics for a state officer or employee under the Personnel Code to be heard as to removal, discharge, demotion or suspension of more than 30 days. In the instant case, such a hearing was held and determination made. No judicial review was sought of this determination. Thus, by the determination of the Civil Service Commission, a clear legal right of plaintiff to his position effective April 20, 1966, was established. Having been so entitled, it necessarily follows that he was entitled to salary from that date, even though he may not have been on the job, because charges against him were being investigated and he was not permitted to return to work until December 1,1966.

Mandamus is a proper remedy to enforce officials to perform their duty in paying salary to an employee lawfully entitled to the same. People ex rel. Sellers v. Brady, 262 Ill 578, 105 NE 1 (1914); People ex rel. Connery v. Burdett, 271 Ill 503, 111 NE 554 (1916); People ex rel. Mosby v. Stevenson, 272 Ill 215, 111 NE 595 (1916). In People ex rel. Bourne v. Johnson, 48 Ill App2d 307, 199 NE2d 68 (1st Dist 1964), the court held that mandamus would lie to compel payment of back salary even though the correct amount due had to be determined in the mandamus suit.

The granting of mandamus in the instant case does not violate the provision of section 26 of article IV of the Illinois Constitution that, “The state of Illinois shall never be made defendant in any court of law or equity,” or the act creating the Court of Claims (Ill Rev Stats 1965, c 37, § 439.1, et seq.). As was pointed out in People ex rel. Freeman v. Department of Public Welfare, 368 Ill 505, 507, 14 NE2d 642, 643 (1938):

“. . . where the action at law or suit in equity is maintained against a State officer or the director of a department on the ground that, while claiming to act for the State, he violates or invades personal and property rights under an assumption of authority which he does not have, such a suit is not against the State. (Citing cases.) ... In particular, mandamus lies.to review the acts of administrative officers or boards where it appears they have acted arbitrarily or in abuse of discretion .... (Citing cases.) We are of the opinion that the present proceeding charging arbitrary action or abuse of administrative discretion resulting from an erroneous construction of a statute is not a suit against the State. . . .”

In the instant case, the suit was to compel the director of the state department and other similar officials to perform their duty to pay plaintiff and was not a suit against the State.

As to the issues of setoff, mitigation of damages and deduction of payments made to a de facto employee, we cannot agree with the determination of the trial court that these matters were not proper defenses. As was held in People ex rel. Krich v. Hurley, 19 Ill2d 548, 169 NE 2d 107 (1960), the question of a right of setoff of earnings from other employment during the period an employee was “improperly prevented from performing his duties . . . was thoroughly considered and squarely answered in the affirmative in Kelly v. Chicago Park Dist., 409 Ill 91, 98 NE2d 738 (1951), and we find no reason for deviating from the principles enunciated therein.” (At 551, 169 NE2d at 108.) Certainly, if such defenses can be raised by the State where a wrongfully discharged employee is subsequently reinstated by the court, such defenses would be available where the agency properly suspends an employee. There is nothing in the language of section 63blll which abrogates the law of the decided cases recognizing the defenses of other earnings and payment to a de facto employee. As we have already determined, the language of this section as to full compensation applies only when the employee was not suspended for disciplinary purposes. It has no application to the instant case, and therefore could not abrogate these defenses.

The trial court was in error in striking the defenses of setoff, mitigation of damages and deductions of payments to a de facto employee.

Reversed and remanded with directions to reinstate the affirmative defenses and proceed to trial.

TRAPP, P. J. and SMITH, J., concur.


author: PER CURIAM.

text:
    In the Matter of the Estate of Gertrude MacDonald, Incompetent. Jean MacDonald, Plaintiff-Appellant, v. La Salle National Bank, as Conservator of the Estate of Gertrude MacDonald, and Margaret B. Terrell, Public Guardian, as Conservator of the Person of Gertrude MacDonald, Defendants-Appellees.
    Gen. No. 52,550.
    First District.
    September 22, 1969.
    Jean MacDonald, pro se, of Evanston, appellant; Gregory A. Gelderman, of Chicago, for appellee.
   Opinion

PER CURIAM.

Not to be published in full.