text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David L. Coddington, Defendant-Appellant.
    Gen. No. 69-21.
    Fifth District.
    April 28, 1970.

      Robert Cummings, of Belleville, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (Kenneth J. Juen, Assistant State’s Attorney, of counsel), for appellee.
   MORAN, P. J.

The defendant, David L. Coddington, hereinafter referred to as Coddington, was convicted of the murder of John A. Petermeyer, hereinafter referred to as Petermeyer, in a jury trial in the Circuit Court of St. Clair County, wherein the jury returned a verdict of death. The trial court denied defendant’s motion for a new trial, and sentenced Coddington to a term of not less than 199 nor more than 200 years. Chapter 38, section 1-7, Ill Rev Stats. Coddington appeals.

The evidence shows that the victim, Petermeyer, was living in a house belonging to Coddington’s mother at 3335 Vernier Avenue in Belleville, Illinois. Petermeyer had been acquainted with the Coddington family for over thirty years and had lived with them on several occasions. He had been living in the house with the permission of Mrs. Coddington for the purpose of maintaining the premises. Petermeyer was 78 years of age but was quite agile for his age and was able to maintain a garden and cut the grass, even though he walked with a slight limp due to a broken leg two years before.

On June 8, 1966, a niece of Petermeyer reported to the City Police of Belleville, Illinois, that he was missing. The police examined the premises on Vernier Avenue and found certain bloodstains. In the course of investigation the police talked to the next door neighbors, Mr. and Mrs. Pierce, who advised that they had not seen Petermeyer since the early part of April, 1966, but they had subsequently seen Coddington, and Mrs. Pierce had a conversation with Coddington in early May, 1966, at the mailbox in front of the house. A propane gas deliveryman delivered a bottle of gas on April 6, 1966, which was signed for by Petermeyer. The time of day of this delivery was not established.

The police determined to question Coddington and learned from his father-in-law, Leroy Daubach, that he had gone to Minnesota in an automobile, the title to which was registered in the name of the father-in-law. The police prevailed upon the father-in-law to prefer a charge against Coddington for auto theft as a means to have him brought back to Belleville for questioning, and on July - 5, 1966, Coddington was arrested in Minnesota on the auto theft charge by a special agent of the F.B.L, who interrogated him concerning the whereabouts of Petermeyer.

Meanwhile, the Belleville police were continuing their investigation and Chief of Police Dobson interrogated a certain William McDaniel, a convicted felon on probation from a prior offense who became the key witness for the prosecution in the present case. McDaniel’s testimony was that Coddington told him that he (Coddington) had killed Petermeyer and compelled McDaniel to assist him in disposing of the body through threats to the safety of McDaniel’s wife and children. McDaniel led the police to an area known as Silver Creek in St. Clair County, where the body of Petermeyer was found on July 22, 1966.

Eventually Coddington was returned from Minnesota to St. Clair County, Illinois, in the custody of deputy sheriffs on November 18, 1966, and remained in the county jail until the morning of November 21, 1966, when he was transferred to the city jail of Belleville and, following a conversation with Chief Dobson, he made the following written statement on November 22,1966:

“I, David L. Coddington, age 24 years, married, born in Belleville, Illinois, Occupation Medical Specialist, residing at 217 South 29th Street, Belleville, Illinois, have been advised by Chief Reese G. Dob-son and Joseph Rodriguez that I have a right to remain silent and that I do not have to make any statement, answer any questions or talk to Chief Dobson and Mr. Rodriguez nor answer any questions directed to me; I have further been advised that anything I say, or any statement I give, can and will be introduced into evidence in Court against me, I have further been advised that if I want an attorney to be present at this time or anytime hereafter I am entitled to such attorney, and that if I cannot afford to pay for an attorney, that an attorney will be furnished to me if I so desire and that if I do desire an attorney I do not have to make any statement or answer any questions until such time as an attorney has consulted with me.
“Having been advised of these rights as above, I hereby agree to make a statement, to answer questions asked of me and I waive my right to have an attorney as above set forth. I further state that I have not been threatened or mistreated in any fashion nor have any promises . of leniency been made to me in return for making this statement.
“On Wednesday, April 6, 1966, I went to visit my sister, Mrs. Cheryl J. Milligan at 212 West Washington Street in Belleville, Illinois. In the course of this visit my sister ask me if I would take her to 3335 Vernier Ave. (a house owned by my mother and occupied by John A. Petermeyer), to get an electric frying pan (which our Mother had told her she could have) and some clothing which belonged to my sister. I agreed to take her to the house to get these items.
“We arrived at the house on Vernier Avenue at about 11:15 a. m. or 11:30 a. m. and were confronted at the entrance of the house by John A. Petermeyer. At the begining, John Petermeyer started calling us names (mainly directed at my sister such as whore and little Bitch, he referred to me as a God damn ex-convict) and refused to admit us to the house. After a couple of minutes of arguing with John Petermeyer we (my sister and I) finally gained admittance to the house.
“When we entered the house the argueing continued with John Petermeyer. My sister took a seat in the kitchen next to the door entering the house, I took a seat at the opposite end of the kitchen table from my sister in a more or less lounge type chair. John Petermeyer took a seat to begin with in a kitchen chair between my sister and I.
“The arguement that was taking place between the three of us was the same as many arguements that had previously oecured between John Petermeyer and I. The subject matter of these arguements were that John Petermeyer was not taking proper care of the interior of the house, he was drinking and becoming drunk which was against my Mother’s wishes and in general allowing the house to depreciate a great deal.
“John Petermeyer alleged that We (my sister Cheryl, her husband George 0. Milligan and myself) were in a plot to have him John Petermeyer removed from the house so that either my sister and her husband or my wife and I could move into the house. We tried to explain to him that none of us wanted the house for own personal use, but at the same time we did not wish to have him (John Petermeyer) allow the house to depreciate through neglect. We always told him that we did not wish to have him (John Petermeyer) removed from the house, but we would have him removed if he did not stop his drinking and if he did not start taking better care of the house.
“On April 6,1966, this is what the arguement was about. John Petermeyer kept saying that he was not going to let us tell him what to do and he wasn’t going to allow himself to be removed so that my Whore of a sister and her rotten husband could move in, or that he would allow himself to be removed so a god damn ex-convict and his bitch wife could move in.
“As the arguement progressed John Petermeyer stood up and became steadily more enraged and more abusive in the nature of his language towards my sister and I.
“At the height of this arguement I got up and turning my back to John Petermeyer I started pouring a cup of coffee at the stove and at the same time telling him I was fed up with him and was going to write my mother to have John Petermeyer removed from the house. I had just set the coffee down and was about to go to the cabinet where the sugar was kept when my sister screamed ‘David look out’ I started to turn around when I was hit by John Petermeyer, a glancing blow with a hammer on the top rear of my head. The blow was not sufficient to render me unconscious but it did knock me down on the floor.
“After knocking me down John Petermeyer turned on my sister and said ‘I’ll get you too.’ My sister started to retreat towards the living room of the house. I got to my feet and stopped Petermeyer at the archway leading from the kitchen to the living room. John Petermeyer and I became engaged in battle for the hammer and in this process he forced me back into the kitchen. At a point opposite of an Amana freezer in the kitchen I managed to get the hammer out of John Petermeyer’s hand.
“When I got the hammer out of his hand he reached down on a cabinet and picked up a wooden handled butcher knife. We then were wrestling very hard and he told me Tm going to kill you/ While wrestling I broke his grip on my right hand in which I now had the hammer and side stepped him and he went past me. At this point his back was towards me and I struck him with the hammer and he fell to the floor in front of the kitchen sink.
“My blow was not hard enough to knock him out and he got back up with the knife in his hand and started advancing towards me again. I back away from him into the living room trying to reason with him to put the knife down. My sister stayed a distance behind me and eventually wound up in the back room where the washer, dryer and bath facilities are. When I reached the door to the room my sister had retreated into, John Petermeyer swung at me with the knife and I grabbed his wrist. I dropped the hammer from my hand to free my right hand in an effort to have both hands free to fight for the knife which John Petermeyer had. John Petermeyer forced me back against a portion of wall between the furnace and the door leading to the back room. I forced myself back off the wall placing my right foot behind Petermeyer, tripping him and causing us both to fall, with me on top of Petermeyer. It was at this point that I managed to get the knife from Petermeyer and I stabbed him twice in the chest. After stabbing him twice I threw the knife on a rug in front of the living room couch. Petermeyer continued to struggle and threw me or pushed me off of him and rolling over on his stomach he reached for the knife again. At this point I picked up the hammer from the floor and struck John Petermeyer with it twice on his head. The second blow completely penetrated his skull.
“I rolled him back over on his back and he only took a few breaths and stopped breathing. I checked him for heartbeat and found none. My sister came out of the back room and I told her that Petermeyer was dead. There was large pool of thick blood around his head, a small portion of blood had ran from his mouth and what I presume was a portion of his lung was sticking out of his chest.
“I took my sister out in the kitchen and she tried to get me to call Chief Dobson. But for reasons I will disclose at later time I did not do so.
“I then took my sister out to the car, got some of my clothes from the car and went back into the house and changed clothes. I took my blood spattered clothes, wrapped the hammer and knife in them, returned to the car and took my little sister back to her apartment on Washington Street. When I left her on this day I told her I would take care of everything and that she should say nothing about what had happened that day to anyone.
“After leaving my sister’s apartment I drove to Nokomis, Illinois and contacted William McDaniels. I told McDaniels what had happened, except for the fact that my sister was there at the time. After talking everything over, McDaniels told me he would help me dispose of John Petermeyer’s body for a sum of ($100) one hundred dollars. I told him I did not have that kind of money, but McDaniels told me he needed money and would not take any risk for less than One Hundred Dollars.
“I stayed that evening, April 6, 1966 in Nokomis, Illinois at McDaniels’ girl friend’s house, Donna Vanus. On the following day, April 7, 1966, I drove back to Belleville and returned to the house where John Petermeyer’s body was.
“I entered the house and moved Petermeyer’s body from the living room to the back room. I got a lot of rags from the back bedroom, went into the living room and wiped up the large pool of blood. I then took a bucket of water and a mop and mopped the remainder of the blood from the floor.
“After doing this I gathered some wool blankets from around the house and went to Petermeyer’s body. I removed his wallet and change purse from his pockets and more or less wrapped his body with the wool blankets.
“I went into the living room and removed the paper money from John Petermeyer’s wallet. There was a little over ($50) fifty dollars in his wallet.
“I looked around the house and found his checkbook and last bank statement. From the bank statement I learned that his checking account contained about ($420.00) four hundred and twenty dollars. I took one of Petermeyer’s cancelled checks and a fresh check and traced his signature on a check and made the check out for ($56) fifty-six dollars and payable to me. After making a final check of the house I left. I then went to the Belleville National Savings Bank in which Petermeyer had his account and cashed the check at the drive-in teller’s window.
“From the bank I went to 217 South 29th Street and saw my wife and father-in-law. While at the house I removed the hammer and clothes from the car. I burned the clothes in the house in a stove. I washed the hammer off with a hose outside and put the hammer with my father-in-law’s tools.
“I then took my wife to a laundra-mat on the south belt line to wash clothes. After this I returned my wife to the house on South 29th, gave my father-in-law $10 dollars for groceries and left, telling my wife and father-in-law I was going to Decatur, Illinois, to check on a job and I would be back on Monday or Tuesday, the 11th or 12th of April 1966.
“Before leaving Belleville I went to Auffenberg Ford and paid Mr. Lillis, in charge of the car rental service, for the use of the rented car I was driving and checked the car out again. The money for the car I had obtained the previous day, April 6, from William McDaniels.
“After leaving Auffenberg Ford Co. I proceeded towards Nokomis, Illinois. Somewhere up Route 66 I pulled down a side road and threw the butcher knife in some brush to the right side of the road.
“I then pulled back onto Route 66 and continued towards Nokomis, Illinois. As I drove up Route 66 I took Petermeyer’s wallet and credentials and tore them into small pieces and threw them out the car window at intervals as I drove.
“When I arrived in Nokomis I paid McDaniels the $100 one hundred dollars he asked to help me. It was originally planned by McDaniels and I that we would return to Belleville that evening (April 7, 1966) to dispose of Petermeyer’s body. However, it was not until April 8th that we left Nokomis at about midnight to return to Belleville.
“When we arrived in Belleville McDaniels refused to go to the house to help me get Petermeyer’s body, so I took McDaniels to his home at 226 Portland Avenue, dropped him off and went to get Petermeyer’s body by myself.
“When I got to the house where Petermeyer’s body was, I got a red quilt to make a final wrapping for his body. I looked all over the house for some heavy twine or rope to tie the quilt with. I finally cut a piece of rope from the back bedroom to use. I wrapped Petermeyer’s body in the red quilt and tied it up with the rope from the back bedroom. I also cut a piece of electrical cord from a fan in the utility room and tied this around Petermeyer’s body.
“I then drug Petermeyer’s body to the trunk of the car outside, but found I was unable to lift the body into the trunk. I went back into the house and got an ironing board. I took the cover off of the ironing board and took the ironing board outside. By using the ironing board I was able to lift the body into the trunk of the car.
“After getting the body in the trunk of the car, I went back into the house and mopped up the trail of blood caused by dragging the body across the floor, and then left. When I got to the road in front of the house (Vernier Ave.) I stopped the car and got two concrete blocks that were laying in the front yard. I placed these in the floor of the car. (They were to be used as weights on the body.) We originally planned to drive the body to a place in Chester, Illinois that McDaniels spoke of and drop the body in a river there.
“I then went back to McDaniel’s house by way of Vernier Ave. to N. 28th Street to Gilbert to Illinois to Douglas to Portland Avenue.
“When I arrived at McDaniel’s house I did not have a rope to attach the concrete blocks to the body with, so McDaniels cut a piece of plastic coated wire clothesline from the rear of the house he lived in.
“McDaniels said it was too dangerous to drive to Chester, but he knew another place which was as good. He said he would drive. We then went to the Silver Creek area where the body was found. The water was not very deep, so McDaniels said we could drag the body back in the woods and cover it with logs until we could return to dig a grave for the body. This is what we did. We placed the body where it was found apparently. I read this in the paper later on.
“After covering the body we went back to the car, took the concrete blocks, clothesline and some blood-soaked rags and threw them in the Silver Creek. We then left and returned to Nokomis, Illinois.
“Yesterday November 21, 1966, at approximately 2 p. m., I accompanied Officers of the Belleville Police Department, namely Chief Dobson and Captain Paul Klincar to the home of my father-in-law at 217 South 29th Street, this city, where from a toolbox in the living room at this address I removed a claw hammer with a worn red-stained wooden handle and a red plastic insert in the top of the hammer and turned it over to the Officers, and I positively identify this hammer as the hammer I used to kill John Petermeyer as explained above.
“I have been shown this date at the Belleville Police Department by Chief of Police Reese G. Dob-son and Chief Deputy Sheriff Joseph Rodriguez of the St. Clair County Sheriff’s Department, photographs of a bundle which apparently contained a human body because I can see the feet sticking out at the end of the bundle, in what appears to be a red cloth or blanket with a blue colored cloth at one end of the bundle and I positively identify this as being the blanket which I wrapped John Petermeyer’s body in which was blue on one side and red on the other. I positively identify this bundle apparently containing the body of John Petermeyer as the bundle McDaniels and I placed in the Silver Creek bottom woods as explained above by the rope and rubber covered electrical cord which I used to tie up John Petermeyer’s body on the night of April 8, 1966. At the request of the above officers I have signed my name, the date and the time on the back of the two colored photographs which I used to identify the bundle.
“I have read this statement consisting of four pages and have made one correction and it is true.”

Coddington’s sister, Mrs. Cheryl Milligan, testified that on April 6, 1966, Coddington picked her up at her apartment at approximately 11:15 or 11:30 a. m. and they drove to the house on Vernier to pick up an electric frypan and the rest of her clothes. She had asked her brother to drive her there. Her testimony of the following events is the same as that of Coddington. She testified that all of the acts occurred very quickly and that Petermeyer had struck the first blow; that she saw Coddington stab Petermeyer before he threw the knife away on the rug; that on April 6 Coddington was not wearing a mask, nor was anyone else wearing a mask while they were present at the house. There was never any discussion by her or Coddington with respect to killing Petermeyer. She did not know whether Petermeyer had a bank account, nor did Coddington ask her whether he did. She never saw Coddington take any money from Petermeyer’s pockets, nor did she ever see him write any checks in Petermeyer’s name.

On cross-examination she admitted visting Codding-ton every week in jail and she admitted reading his written statement on several occasions. The prosecutor pointed out the similarity of the wording of her version of the story with that of the wording of Coddington’s statement, noting particularly the phrases, “there was a large pool of thick blood around his head, a small portion of blood had ran from his mouth and what I presumed was a portion of his lung was sticking out of his chest. I dropped the hammer from my hand to free my right hand in an effort to have both hands free to fight for the knife.” She described Petermeyer as being five feet, six inches, or five feet, seven inches tall and approximately 180 pounds.

McDaniel testified that Coddington had not mentioned anything about his sister being at the house at the time the killing took place, nor did he mention having struggled with Petermeyer or say anything about the killing being in self-defense, nor did he say anything about himself being hit on the head with a hammer or complain about any headaches or other injury to his head. McDaniel had not noticed any blood on Coddington’s head.

Coddington’s testimony with respect to these events is substantially the same as in his statement, but in addition he testified that subsequent demands for money were made by McDaniel and because of these demands it was necessary to forge additional checks in a total amount of $600, of which $490 was given to McDaniel for “blackmail and burial fees.” He denied making any threats concerning McDaniel’s wife and children or to McDaniel, himself. He further denied that he had told McDaniel anything about wearing a mask at the time of the killing and he testified that he told McDaniel that he had killed Petermeyer in self-defense.

McDaniel also testified that Coddington’s story was that he was in the house, that the old man walked in and unmasked him or snatched or grabbed for his mask and recognized him and Coddington hit him with a hammer and stabbed him. McDaniel does not remember exactly what else was said, but he knows that Coddington said, “It was horrible, because the old man just didn’t want to die. He wouldn’t give up.” He knows that Coddington said that he had stabbed Petermeyer and that he (Coddington) had been wearing a mask, but did not know how many times he had stabbed Petermeyer or what kind of mask Coddington had been wearing or where the mask was. McDaniel remembers seeing blood on the defendant’s socks, but not on any other part of his clothing.

There was character testimony on behalf of Codding-ton that Petermeyer had a reputation in the community for being violent and vicious. There was rebuttal testimony by the prosecution that Petermeyer was a peaceful and law-abiding citizen.

Coddington first argues that the trial court improperly denied his motion for change of venue to another court. His motion alleged that an article appeared on the front page of the Belleville Daily News Democrat on November 19, 1966, which stated that he had an automobile in his possession which was owned by John Petermeyer, and leads the reader to believe that he stole the automobile from deceased. His motion further alleged that he was never in possession of an automobile owned by John Petermeyer and that because of the general circulation of this newspaper in St. Clair County, it would be impossible to select a jury which has not read this article. A copy of the article was attached to the motion but there were no supporting affidavits.

The state filed a motion in opposition to Coddington’s motion alleging that there were no grounds alleged in his motion showing prejudice on the part of the inhabitants of the county and that the defendant’s motion was not properly supported by affidavits. The state attached 26 affidavits of inhabitants of St. Clair County to the effect that they had no knowledge of this homicide or if they did have such knowledge, they had not formed an opinion as to Coddington’s guilt and they felt he could get a fair trial in St. Clair County.

Coddington admits that his motion does not meet the requirements of Ill Rev Stats (1967), c 38, § 114-6, since it is not supported by affidavits which state facts showing the nature of the prejudice alleged.

The accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that he cannot receive a fair and impartial trial. People v. Berry, 37 Ill2d 329, 226 NE2d 591. Each case must be decided on its own facts and the decision rests in the sound discretion of the trial court subject to review in cases of abuse. People v. Allen, 413 Ill 69, 107 NE2d 826. This case is easily distinguishable from Irvin v. Dowd, 366 US 717, and Rideau v. Louisiana, 373 US 723, cited by defendant, where “massive, pervasive and prejudicial publicity” aroused clearly demonstrated prejudice in the community, People v. Berry, supra, and on this showing we cannot say that the trial court abused its discretion in denying Coddington’s motion.

Coddington next contends that his exculpatory statement was improperly admitted into evidence. He admits that he was given warnings required by Miranda v. Arizona, 384 US 436, however, he asserts he was tricked and cajoled by Chief Dobson into the waiver of his rights, thus destroying the voluntary character of his statement. Belying primarily on the statement in Miranda that “moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege,” Coddington argues that the interrogation conducted by Chief Dobson thwarted the spirit and whole purpose of the Miranda decision. He points to evidence that Chief Dobson knew him and his family for several years and had helped him in the past when he was in trouble. Chief Dobson knew that Coddington trusted him as a friend. He speculates that the City of Belleville Police Department maintained control of this investigation instead of the St. Clair County Sheriff’s office because Chief Dobson knew him and knew that he could get through to him where others might fail. He argues that Chief Dobson took him into his office and received him as a friend in that the initial conversation, which, according to the testimony, lasted anywhere from thirty seconds to fifteen minutes before the Miranda warnings were given to him. It was merely a softening up process designed to inspire Coddington’s confidence in the Chief, so notwithstanding the warnings, he did not speak in the unfettered exercise of his own free will. Coddington also points to certain remarks which may have been made by Chief Dobson that, “you are in trouble son, and you need help,” that he could be sent to the electric chair and that “I want to help you get straightened out, but you must tell the truth.”

A pretrial hearing on Coddington’s motion to suppress the statements was held and the trial court determined that the statements were voluntarily given by Codding-ton. All of the witnesses present on November 21 and 22 during defendant’s interrogation testified at this hearing that Coddington was properly admonished of his rights pursuant to the Miranda decision, that they believed Coddington fully understood the meaning of these warnings and that no threats or coercion were used to induce him to waive his rights and give a statement.

Although the state has the burden of proving the voluntariness of the accused’s statement by a preponderance of the evidence, it is clear that the trial court need not be convinced beyond a reasonable doubt. People v. Jackson, 41 Ill2d 102, 242 NE2d 160. It is also well settled that on review the trial court’s determination will not be disturbed unless it is shown to be contrary to the manifest weight of the evidence. People v. Hudson, 38 Ill2d 616, 233 NE2d 403; People v. Hall, 38 Ill2d 308, 231 NE2d 416; People v. Spencer, 27 Ill2d 320, 189 NE2d 270. After reviewing the record in this case, we have found substantial evidence to support the trial court’s finding that Coddington’s statements were given voluntarily and that he had knowingly and intelligently waived his privilege. He repeatedly told Dobson and Officer Rodriguez that he was aware of his rights and that he wanted to make a statement. He testified that no threats or promises of leniency were ever made to him, nor was he mistreated in any way. His oral and written statements were given shortly after he signed the waiver of his rights and were not a product of any prolonged interrogation. He did testify that he felt by signing the statement he had written, he would be exonerated from the crime charged. An improper inducement which will negate the voluntariness of a confession must be ex-temal, that is, the motive of hope or fear must be directly applied by a third person and must not arise merely from the operation of the defendant’s mind. 29 Am Jur2d, Evidence, § 543. The conclusion that Coddington’s decision to give a statement was motivated by his own hope of exoneration under the circumstances and not from inducements directly made by the police is substantiated by a letter written by Coddington to Chief Dobson in October, 1966, from St. Paul, Minnesota, wherein he wrote that if he talked to any police officer, Chief Dobson would be the man he would want to talk to, with the stipulation that he would have to talk with his lawyer first. There had been no other communication between Coddington and Chief Dobson.

In any event, Coddington testified in his own behalf that the contents of his oral and written statements as given on November 21 and 22, 1966, were true and he reiterated these events in detail. He was, therefore, not prejudiced and should not be heard to claim constitutional privileges which he voluntarily waived by testifying. People v. Skidmore, 69 Ill App2d 483, 217 NE2d 431

Coddington also contends that in closing argument the prosecutor misstated certain evidence and used inflammatory language so as to deprive him of a fair trial. After studying the record in this case, particularly the statements asserted by Coddington as prejudicial, we cannot say that these remarks were not proper inferences to be drawn from the evidence, or were so prejudicial as to warrant granting a new trial, especially in view of the fact that no objection was made by defense counsel during the closing argument. People v. Donald, 29 Ill2d 283, 194 NE2d 227; People v. Sinclair, 27 Ill2d 505, 190 NE2d 298; People v. Johnson, 93 Ill App2d 184, 236 NE2d 338.

Since we have determined that the prosecutor’s conduct was not so prejudicial as to necessitate a new trial, it is unnecessary to consider the contention that the trial court erred in failing to stop the prosecutor’s argument,

He further contends that the trial court erred in failing to give an instruction regarding the testimony of an accomplice. No such instruction was either tendered by defense counsel or rejected by the trial court. An instruction on accomplice testimony would have been proper if the witness McDaniel was an accomplice, but in our judgment he was not. The generally accepted test as to whether a witness is an accomplice is whether he, himself, could have been indicted for the offense either as principal or accessory. People v. Hrdlicka, 344 Ill 211, 176 NE 308. In the present case it is undisputed that witness McDaniel had no knowledge of the killing of Petermeyer and was not involved in any way in this crime until after Petermeyeris death. On these facts it cannot be concluded that McDaniel is chargeable as a principal in this offense. Ill Rev Stats (1969), c 38, § 5-2 (c). An accomplice is said to be one who knowingly, voluntarily and with a common interest with others participates in the commission of a crime either as a principal or as an accessory before the fact. 21 Am Jur 2d, Criminal Law, § 118. Our case law has held that an accessory after the fact is not an accomplice. People v. Sapp, 282 Ill 51. Consequently, it was not improper that an instruction on accomplice testimony was not given.

In any event, if such an instruction were appropriate on this issue, the record discloses that defendant failed to submit one. And since the trial court is under no duty to give an instruction on its own motion, the defendant should not now be heard to complain of this error. People v. Caldwell, 39 Ill2d 346, 236 NE2d 706; People v. Marshall, 96 Ill App2d 124, 238 NE2d 182.

Coddington finally urges that the trial court committed error in asserting the right against self-incrimination for the witness McDaniel when he did not claim it for himself. During defense counsel’s cross-examination of McDaniel as to his prior criminal record, defense counsel asked whether McDaniel had burglarized a particular house. The prosecutor objected and the court sustained the objection, stating that defense counsel may bring out a witness’s conviction. Defense counsel argued that it was proper if the witness is willing to testify. The court responded, “I won’t let him answer that. That is self-incriminating. Suppose he asked you the same thing.” The question was never answered by the witness. Assuming that the trial court’s ruling was incorrect, in view of the entire record and particularly prior convictions to which the witness had already testified, we do not feel that the defendant was prejudiced by this ruling. Hence, it would not constitute reversible error. The purpose of review in a criminal case is not to determine whether the record is free from error, but whether a just verdict has been rendered based on evidence establishing defendant’s guilt beyond all reasonable doubt after a trial in which no error prejudicial to defendant’s rights has occurred. People v. Ward, 32 Ill2d 253, 204 NE2d 741; People v. Hawes, 8 Ill2d 501, 134 NE2d 781; People v. Yarbrough, 97 Ill App2d 457, 240 NE2d 200. We believe that the defendant has had a fair trial and that the jury’s verdict was justified by the evidence and was not the result of any prejudicial error.

In view of the foregoing, the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: MORAN, P. J.

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Henry Odom, Defendant-Appellant.
    Gen. No. 68-54.
    Fifth District.
    April 28, 1970.

      Terryl W. Francis, of Granite City, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (John M. Karns, Jr., of counsel), for appellee.
   MORAN, P. J.

Defendant, Henry Odom, was convicted in a trial by jury of rape and burglary and sentenced to the penitentiary for a term of twenty-five to fifty years.

Defendant urges, among other things, that the lineup procedure by which he was identified was so conducive to irreparable misidentification as to deny him due process of law and that the uncorroborated testimony of the complaining witness is not of the affirmative character required by law and is insufficient to support the conviction in light of defendant’s alibi testimony.

The complaining witness, Mrs. Marcia Buff, 25, testified at trial that on May 21, 1967, she was living at 782 Lindberg Drive, East St. Louis, Illinois, in a rented, two-bedroom house with her two children, ages 9 and 4. Her husband was in Viet Nam at that time. No one else had access to the house. She went to bed around 2:30 a. m., Sunday, May 21, 1967. Her front and back doors were locked, as well as the screen door on the back porch and a chair was pushed against the back door as an additional precaution because the house had been broken into a month earlier.

While she was asleep in her bedroom at the front of the house, someone said, “Wake up.” A man was standing over her with a knife at her throat. She saw by a luminous clock that it was five o’clock. The knife had a long thick blade like a butcher knife used in a grocery store, but she could not recall in which hand he held it. She testified, “It was just dusk,” and there was a small night-light in the bathroom and a streetlight outside the window. She stated further, “It wasn’t bright light, but it was just beginning to get light in the wee hours of the morning.” In response to the question, “Could you see in your room?” she stated, “Yes, I could.” She saw a man who asked her twice for money, but she had only some small change. She described him at trial as “wearing an overcoat and wash pants and a sport shirt. . . . He wore dark glasses and he had a light beard. Not a beard, but a growth. He needed a shave.” He also had a moustache.

As to subsequent events, she testified as follows;

After I told him I didn’t have any money, he said, “Get up,” so I got up with the knife at my side and he took me into the living room and put my face against the wall and he started kissing me on the shoulder, and he said, “Where is your money?” and I said I didn’t have any. He said, “WThy do you live alone?” and I said, “I don’t, my husband works nights,” and he said, “What time will he be home?” I could see it was almost five, so I said, “He comes home around six,” and he said, “What time is it?” and I looked at the clock and that is when I saw it was after five o’clock. He started kissing me on the shoulder again and said, “I want your money,” and I said, “I don’t have any.” I said, “My house was broken into a month ago and my husband takes all the money to the bank on Friday night.” He then said he wanted to have sexual intercourse. I begged him. I said, “No, please, don’t.” I said, “Just go and leave me alone,” and he said, “I want sexual intercourse,” and I said, “No, please,” and at this time my little girl came into the living room.

Her four-year-old daughter, who had been sleeping in the bed with her mother, came into the room.

She looked up at him and she said, “Mommy,” and he said, “Get that damned kid out of here or I will kill her,” so I calmed myself down and told her to go back into the bedroom and she did, and then he said, “Come out onto the porch” and so he pushed me ahead of him and we got almost to the kitchen door where the kitchen is, and he said, “No, it is too light, you will see me too plain,” so he turned me around and went into my other bedroom, the small bedroom and made me lie down on the bed and then he said, he started kissing me on my stomach, and he said, “Put it in,” and I said, “No, I can’t, just go and leave me alone,” and he said—I says, “My husband is going to come home,” and he said, “If he comes home before I am finished, I will kill him. I have a gun.” I don’t know if he had a gun or not. And then he forced himself on me and then he got up and I kept begging him to leave, and he says, “You will scream,” and I said, “No. I won’t. Just go and leave me alone.” I said, “My husband is going to come home.” He says, “You will scream,” and I said, “No, I won’t. Just go please.”

She testified further that penetration was accomplished, that she did not consent and that she did not resist out of fear for her life and the lives of her children.

After the assailant left, she ran to the kitchen, slammed the door and pushed the clothes dryer in front of it. She then ran to the living room door and screamed for help, but no one came, so she went to the lady next door. Her neighbor called her parents and the police. Two policemen arrived around 5:30 a. m., but she does not recall their names. It was 5:15 when she ran out of her house. She stated to them that her assailant was a Negro who wore glasses, had a moustache, and was taller or a “wee bit taller” than she, but that the outstanding feature about him was that he wore dark horn-rimmed glasses.

Later that morning, a Detective Johnson and another detective brought a sketch of a man to her house. She testified that the man depicted in the sketch was the one who raped her, but he wore glasses. The officer then drew circles around the eyes of the sketched man and she definitely identified him. No other pictures or sketches were ever shown to her, nor was the sketch introduced into evidence at the trial.

On Monday, May 22, she was taken to the East St. Louis jail to view a lineup of five Negro men. She identified the man in the middle as being her assailant. At the trial, she identified the defendant as her assailant and stated that he was the man she had identified from the lineup. She could remember nothing unusual about the way any of the lineup participants had been dressed and did not remember how many of them wore glasses.

She did not know how far the streetlight was from the windows, but there were metal awnings on the front windows. She could not remember if the collar of her assailant’s overcoat was turned up. Although there was a night-light in the bathroom, they were never in there. There were no lights on in the bedroom, but from the streetlight, she testified, “it was light enough to see.” He was behind her from the time they left the bedroom and stayed in the living room until they went into the second bedroom. There were no lights in the second bedroom which faces east.

After the lineup, the defendant was taken to a room with the complaining witness, her parents and several officers, and questioned. He was wearing glasses and she had an opportunity to observe him throughout that time. She had also stated that her assailant had a Negro dialect. On redirect she testified that the voice of the defendant she heard in the interrogation room was the same she had heard in her home.

Detective L. G. Adams testified that he participated in the arrest of the defendant and the investigation of this case. The lineup area where defendant was shown was enclosed with a full screen that the witness could see through. The defendant was positioned in the middle of the five men shown. Adams testified that the complaining witness identified the defendant from the lineup. He stated that “she was somewhat reluctant at first. She was not sure at first.”

All of the lineup participants were Negroes and were wearing civilian clothes. Only the defendant wore glasses and either three or four had moustaches. At least three of the five were six feet tall or taller and one of the participants was only 20 or 21 years of age. Defendant’s beard appeared to be two or three days old at the time of the lineup. The police report did not indicate how the participants were dressed.

Following the lineup the defendant and the complaining witness were in the interrogation room approximately twelve minutes.

The following stipulations were made: Police dispatch was made on May 21 at 5:22 a. m. The complaining witness was taken to Scott Air Force Base at 8:50 a. m. for examination, and 21 slides taken were all positive of male sperm.

Joyce Naomi Odom testified that on May 21, 1967, she was living with her husband, her baby and her brother-in-law, the defendant. On Saturday, May 20, she stated, defendant shaved, cleaned up and left the house around 5:30 or 6:00 p. m. He returned around 12:00 midnight and went to bed on the couch where he usually slept. She was awake at 5:00 on the morning of Sunday, May 21, as it was customary for her to get up and fix her husband’s breakfast at that time. She had forgotten that it was Sunday and her husband did not have to work. At that time Henry was in the bathroom and she spoke to him. She was seven months pregnant at the time and had to use the bathroom frequently.

On cross-examination, she testified defendant had been living with them for six or seven months. He had gotten up early that Sunday morning to pick up his children. She was home later that morning when the police came to arrest the defendant. She was aware that defendant was charged for an occurrence which took place around 5:00 on Sunday morning, but at no time did she tell the police or State’s Attorney that they had the wrong man. She stated that she had told her husband to tell them.

George Sansom testified that he was the magistrate before whom the preliminary hearing had been held. Referring to the notes he had taken at the hearing, he testified that the complaining witness had first described her assailant to the police as “colored, taller than I, moustache, had a coat, dark framed glasses.” At the preliminary hearing she had testified that her assailant had not kissed her. She had also testified that she did not know what color or type of shirt her assailant was wearing.

Detective Charles Vaughn testified that he was behind the screen in the lineup room when the lineup took place, but he was not with the complaining witness at that time. Defendant was the only participant wearing glasses during the lineup. Defendant had asked for his glasses prior to the lineup.

Immediately after the lineup, he went into the interrogation room with the complaining witness, her parents, and Lt. Johnson. He stated:

A. “When I first went in, she wasn’t saying anything. The father was talking and he asked her if one of the five guys in the lineup was the person that had raped her and she said she think it was the one in the glasses.”
Q. “This was after the lineup had taken place?”
A. “Yes, sir.”
Q. “Was she being led in any way by Lt. Johnson and her mother and father?”
A. “I couldn’t say, because Lt. Johnson wasn’t saying anything. The only somebody that was talking was her father.”
Q. “As to him, was he leading her then ?”
A. “No, he just told her he wanted her to be sure if it was the right man or not.”

On cross-examination:

Q. “Then they brought Henry into that room, is that right, later on?”
A. “Yes, sir.”
Q. “Did Marcia, at that time say she was sure?”
A. “Yes, sir.”
Q. “But at that time, she, in fact, became hysterical when they brought him into the same room with her?”
A. “That’s right.”

Odell Odom testified that he was the brother of the defendant and that he measured the distance from the streetlight previously mentioned to the front of complaining witness’ house to be 119 feet. He testified further that there were aluminum awnings on the front of the house.

Defendant, Henry Odom, testified that on the evening of May 20, he shaved, cleaned up and went out to the Blue Note Club for the evening. He returned around midnight and went to bed in the living room. About five o’clock he was awakened by the alarm on the television and used the bathroom.

He described the other participants in the lineup. One was six féet and one-half to two inches tall, light or medium complexion, about 21 years of age and had no beard or moustache. Another was “approximately five feet eight, between five feet eight or five feet ten or eleven inches, give or take an inch or inch and a half, say. He had a heavy moustache and was of dark complexion and he was in need of a shave.” The third was “obese, just about two inches taller than me and of about the same complexion, but there is no similarity.” The fourth was tall and dark complexioned. Defendant was the only one wearing glasses and not having shaved since Saturday night, he needed a shave.

Defendant first saw the complaining witness after the lineup when he was presented alone to her in the interrogation room with the complaining witness’ parents and Lts. Johnson and Vaughn. He testified that he does not smoke or drink, never has, and did not drink that evening. He further testified that he has never seen or been in the complaining witness’ house. On cross-examination he testified that he was 35 years of age, married, with five children, but separated from his wife. He has worn glasses for some time because of myopia and astigmatism. He testified that the police told him to keep the glasses, that they did not ask for the glasses until after the lineup, and that he did not ask to wear the glasses during the lineup. He is five feet, six inches, in height and weighs 160 pounds. After the lineup he was taken to the interrogation room and seated three to four feet from the complaining witness for twelve to fifteen minutes. At that time of the year at five o’clock in the morning it was usually dark or dusk.

Thomas Edwards, a deputy sheriff in the St. Clair County Sheriff’s Office testified that he knows the defendant and has had occasion to be in the Blue Note socially when defendant was there. He testified:

A. “The time I saw him, a couple of times I saw him there, it was sweet soda. That is what I saw him drink. What he did afterwards, I don’t know. I only saw him drink soda.”
Q. “You have never seen him drink anything alcoholic?”
A. “No.”

The following testimony was part of that given at a hearing on a motion to dismiss on the basis that the lineup procedure was of such nature as to preclude the identification being a fair one.

Detective Charles Vaughn testified, in part, that none of the other participants in the lineup wore glasses and that no one took the defendant’s glasses from him until after the lineup was over.

Detective L. G. Adams testified that he assisted with the lineup. He described two of the other participants. One was about 21 years of age, six feet or six feet, one inch, in height and light complexioned. The second was about five feet, eleven inches tall, 28 years of age and had a bushy moustache. He could not recall the other two. He thought the defendant was wearing a white shirt and dark trousers, but no coat, during the lineup. He stated that it is normal procedure during an investigation to take several photographs, rather than just one, to a witness. Defendant was rather “rowdy looking” when he was arrested on Monday morning. In response to the question, “Was Henry Odom taken out of the lineup into the detective’s office in front of the witnesses ?” he stated, “After positive identification had been made.”

Police conduct of extrajudicial lineup, showup and photoidentification procedures has recently been subjected to severe criticism and the issue of identification has become one of admissibility as well as credibility. People v. Wade, 388 US 218, 18 L Ed2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed2d 1178, 87 S Ct 1951; Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967; Simmons v. United States, 390 US 377, 19 L Ed2d 1247, 88 S Ct 967; Foster v. California, 394 US 440, 22 L Ed2d 402, 89 S Ct 1127; People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152.

It has been recognized that judged by the totality of the circumstances, the conduct of identification procedures may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be denial of due process of law. Foster v. California, supra; Stovall v. Denno, supra; People v. Blumenshine, supra.

Defendant argues that the in-court identification and testimony concerning the police station and other out-of-court identification denied him due process. However, our Supreme Court has interpreted Stovall to mean that “a defendant so claiming must prove that the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identity that he was denied due process of law.” People v. Nelson, 40 Ill2d 146, 150, 238 NE2d 378; People v. McMath, 40 Ill2d 388, 240 NE2d 593.

In McMath the court stated where “identification of the defendant could have been established apart from and independent of the police station and in-court identification,” due process was not violated. In the present case the complaining witness was awakened by a man standing over her with a knife which she could feel and see. She could see him well enough to observe several physical characteristics of her assailant, including the way he was dressed. She also recognized his voice while in the police station. She was in close proximity and face-to-face with him during the rape. After considering the record in its entirety, we are unable to say that the out-of-court identification proceedings denied the defendant due process of law under the standards laid down by our Supreme Court in McMath.

However, the record in this case discloses that there was no evidence offered in mitigation and aggravation; nor does the record show that the defendant was aware of his right to a hearing on mitigation and aggravation. This is essential. People v. Harris, 66 Ill App2d 46, 213 NE2d 588; People v. Tompkins, 112 Ill App2d 251, 251 NE2d 75.

In view of the foregoing, it is obvious we are not in a position to express an opinion concerning the alleged excessiveness of the sentence imposed. The judgment of conviction of the Circuit Court of St. Clair County is affirmed, but the sentence imposed is vacated and the cause is remanded to said court with directions that defendant be granted a hearing in accord with the views expressed herein to determine the proper sentence to be imposed.

Judgment of conviction affirmed, sentence vacated and cause remanded with directions.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Defendant in Error, v. Little Berry Curtis, Plaintiff in Error.
    Gen. No. 65-98.
    Fifth District.
    May 12, 1970.

      Maurice A. Rickelman, of Effingham, for plaintiff in error.
    Curtis G. Quindry, State’s Attorney of Jasper County, of Newton, for defendant in error.
   EBERSPACHER, J.

Little Berry Curtis was indicted by the Grand Jury of Jasper County, Illinois, on October 18, 1963, for the crime of aggravated incest with his daughter, Mary Curtis. On October 25, 1963, his motion for a Bill of Particulars specifying the time and place of the crime was denied without argument and trial was held December 2, 1963. The defendant was represented by appointed counsel throughout. He was convicted of the offense charged and sentenced to the penitentiary for not less than eight nor more than twenty years.

His post-conviction petition was denied on motion without an evidentiary hearing and defendant appealed to the Supreme Court from that judgment. The issue on that appeal was whether his constitutional rights were violated by reason of the failure of the trial court to grant the motion for a Bill of Particulars. This issue was decided adversely to the defendant by the Supreme Court in People v. Curtis, 41 Ill2d 147, 242 NE2d 201 (1968). That issue, although raised on this appeal from the judgment of conviction, therefore has been disposed of and will not be further discussed herein.

The only issue remaining is defendant’s contention that the trial court erred in denying him the right to cross-examine the victim’s sister, Bonnie Curtis, as to her interest, bias or motivation and to examine defense witness, Hazel Williams, the sister of defendant, as to the interest, bias or motivation of the complaining witness. The following excerpt from defendant’s brief shows this claim:

“On cross-examination of prosecution witness, Bonnie Curtis, Mr. Leffler, defense attorney, asked:
“Q. How has your father treated you, Bonnie?
“Mr. Eaton: That’s objected to as immaterial.
“The Court: The objection is sustained.
“On another occasion Mr. Leffler, defense attorney, was questioning Hazel Williams, defense witness, who testified that Mary Curtis, came back over after a while and they were sitting over there drinking and she stated to me--
“Mr. Eaton: I object to that statement as hearsay and ask the Court to instruct the jury to disregard it.
“The Court: The objection is sustained and the jury are instructed to disregard any conversation that Mary had with her.
“Mr. Leffler: Mary came to your house ?
“Hazel Williams: She said that she hoped that her dad got so drunk that he got locked--
“The Court: You are instructed not to continue that answer as it is hearsay, and the jury is instructed to disregard it.
“Mr. Eaton: I object to the demeanor of the witness, that she has not complied with the direction of the Court, and her statement should be wholly disregarded.
“The Court: The jury will disregard her answer.
“It appears that the defense was endeavoring to secure by cross-examination of Bonnie Curtis, and by direct examination of Hazel Williams, evidence of the hostility, interest, bias or motivation of Bonnie Curtis and Mary Curtis, witnesses for the prosecution.”

The State concedes, and rightly so, that the defendant is entitled to the opportunity to reveal any hatred which a witness might have for the defendant. For example, “it is proper to show the actions and conduct of witnesses as bearing on their motives.” People v. Turner, 265 Ill 594, 602, 107 NE 162 (1914). “The character and extent of the feeling of hostility entertained by a witness should be permitted to be shown.” People v. Strauch, 247 Ill 220, 230, 93 NE 126, 131 (1910).

However, “it is equally true that the limit to which cross-examination shall be permitted rests soundly in the discretion of the trial judge.” People v. Caldwell, 62 Ill App2d 279, 284, 210 NE2d 556, 558 (1965). Furthermore, the trial court is vested with a wide discretion in the matter of cross-examination and only a clear abuse of discretion will bring about the interference of a reviewing court. People v. Halteman, 10 Ill2d 74, 139 NE 2d 286 (1965).

In order to impeach a witness for bias, it is necessary that a proper foundation be laid. People v. Rainford, 58 Ill App2d 312, 208 NE2d 314 (1965). The defense counsel failed to indicate the basis of his proposed line of questioning, nor did he make an offer of proof as to the competency, relevancy or materiality of the evidence sought to be elicited. His direct examination of Hazel Williams as to what Mary £urtis said on a previous occasion was properly refused under the circumstances. Counsel had an opportunity to cross-examine Mary Curtis to establish any bias or motive on her part. This was not done and her possible bias or motive in testifying the way she did was not placed in issue for impeachment.

We cannot say that the refusal by the trial court to allow inquiry on cross-examination of Bonnie Curtis into the way her father treated her was an abuse of discretion. Counsel did not provide the court with any reason why the inquiry was material, nor was an offer of proof made. People v. Caldwell, supra.

We do not here hold that a defendant cannot develop the bias or motive of a witness. We are only saying that the requirements of law and procedure must be followed in so doing.

This Court is appreciative of the excellent manner in which appointed counsel has proceeded on appellant’s behalf in this appeal.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Ward Jones, Appellant.
    Gen. No. 69-163. (Abstract of Decision.)
    Fifth District.
    May 13, 1970.
    Orwin H. Pugh, Public Defender of Jackson County, of Murphysboro, for appellant; Richard E. Richman, State’s Attorney of Jackson County, of Murphysboro, for appellee.
   Opinion by PRESIDING JUSTICE MORAN. Not to be published in full.


author: GOLDENHERSH, J.

text:
    Rust Contracting & Supply Company, Inc., a Corporation, Plaintiff-Appellant, v. Swiss Valley, Inc., a Corporation, Illinois State Trust Company, a Corporation, James D. Johnson and Ruth M. Johnson, Architectural Associates, a Corporation, and Unknown Owners, Defendants-Appellees.
    Gen. No. 69-10.
    Fifth District.
    May 18, 1970.

      Roberts, Gundlach & Lee, of East St. Louis (Richard E. Boyle, of counsel), for appellant.
    Walker & Williams, of East St. Louis (David B. Stutsman, of counsel), for appellees.
   GOLDENHERSH, J.

Plaintiff, Rust Contracting & Supply Company, Inc., appeals from the decree of the Circuit Court of St. Clair County entered in its action to foreclose a mechanic’s lien.

Plaintiff’s amended complaint, in two counts, seeks foreclosure of a mechanic’s lien and a money judgment against the defendant, Swiss Valley, Inc., hereafter called Swiss Valley. Defendants, Illinois State Trust Company, and James D. Johnson and Ruth M. Johnson, jointly, are the holders, respectively, of a first and second mortgage on the premises involved. Illinois State Trust Company filed a counterclaim to foreclose its mortgage and the Johnsons answered asserting the priority of the lien of their second mortgage as against all claimants, subject only to the mortgage lien of Illinois State Trust Company. Robert P. Weinel and Architectural Associates, Inc. filed counterclaims seeking to foreclose mechanic’s liens.

All parties except Architectural Engineers, Inc. presented evidence in the trial court. The court entered judgment in favor of plaintiff and against Swiss Valley on its count seeking a money judgment. It entered its decree finding the mortgage of Illinois State Trust Company to be a first and prior lien, the mortgage held by the Johnsons to be second in priority, and the mechanic’s liens of plaintiff and Weinel to be third in priority and equal in priority as to each other. The decree provided for a sale of the premises and disbursement of the proceeds to Illinois State Trust Company, the Johnsons, and plaintiff and Weinel in that order.

It is plaintiff’s contention that the work it performed enhanced the value of the land so as to entitle its lien to a priority over the first and second mortgages.

The testimony shows that the land in question is a parcel of 195.67 acres. Rust had cleared, excavated, and drained the property and furnished and installed concrete culverts. Swiss Valley was satisfied with the work, and the amount of plaintiff’s claim is not in issue. Both plaintiff and Illinois State Trust Company called expert witnesses and there is a sharp conflict in the testimony as to whether plaintiff’s work enhanced the value of the property. Plaintiff had the burden of proving that the value of the mortgaged premises was enhanced by the improvement. Metropolitan Life Ins. Co. v. Ohlhaver, 284 Ill App 477, 483, 1 NE2d 259; Commercial Mortgage & Finance Co. v. Woodcock Const. Co., 51 Ill App2d 61, 65, 200 NE2d 923.

In its decree the court found:

“8. That the development plan of Swiss Valley, Inc., for said premises was abandoned on or about July 1, 1966, and none of the work or services performed by either Rust Contracting & Supply Co. or Robert P. Weinel, enhanced the value of said real estate in any degree or amount.”

In the review of a ease tried without a jury, an appellate court should not disturb the findings of the trial court unless they are manifestly erroneous. People ex rel. v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE 2d 126. The application of this rule to our review of the record requires affirmance of the decree.

Decree affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles F. Schonert, Defendant-Appellant.
    Gen. No. 69-80.
    Fifth District.
    May 18, 1970.
    Rehearing denied June 25, 1970.

      John S. Huber, of Belleville, for appellant.
    C. Glennon Ran, State’s Attorney, of Waterloo, for appellee.
   GOLDENHERSH, J.

In the Circuit Court of Monroe County, defendant, Charles F. Schonert, waived indictment and was charged in a four-count information with the offenses of Battery (c 38, § 12-3, Ill Rev Stats), Criminal Damage to Property (§21-1), Burglary (§19-1) and Attempt (§8-4).

After a jury was selected and sworn, and some evidence taken, defendant interrupted the trial and entered a plea of guilty to all four counts. Defendant made application for probation and an investigation was made by the probation officer for the Twentieth Judicial Circuit. The court denied probation, heard evidence in aggravation and mitigation and sentenced defendant to the Illinois State Penitentiary for a term of not less than 5 nor more than 15 years on the Burglary Count, and a term of not less than 2 nor more than 5 years on the conviction of Attempt, the sentences to run concurrently. The court assessed fines of $100 and $500, respectively, on the Criminal Damage to Property and Battery counts and stayed both fines.

As grounds for reversal defendant contends Count III of the information charging Burglary is fatally defective in that it fails to allege the essential elements of the crime. In this count it is charged that defendant “without authority, knowingly entered the house trailer of William Kaloskey located at 548 South Main Street in the City of Columbia, Monroe County, Illinois, with the intent to commit a felony, in violation of Section 19-1, Chapter 38, Illinois Revised Statutes 1967.” The information is framed in the language of the statute and is sufficient to charge the offense. People v. Reed, 33 Ill2d 535, 213 NE2d 278; People v. Stevenson, 107 Ill App2d 441, 246 NE2d 309.

Defendant also contends that Count IV of the information charging Attempt is fatally defective in that it fails to charge the essential elements of the crime. In this count it is alleged that defendant “committed the offense of Attempt in that he, with the intent to commit the offense of Robbery struck William Kaloskey and attempted to obtain money from him, in violation of sec 8-4, Chapter 38, Illinois Revised Statutes, 1967.” The information is sufficient to charge the offense. People v. Martin, 62 Ill App2d 97, 210 NE2d 587.

Defendant next contends he was denied a fair trial in that he was represented by incompetent counsel, who improperly advised him to plead guilty to the charges. The record fails to show incompetency of counsel, People v. Washington, 41 Ill2d 16, 241 NE2d 425, and demonstrates the trial court’s careful compliance with Supreme Court Rule 401 prior to accepting defendant’s plea.

Defendant contends he “was denied his civil rights” in that the court improperly ordered his arrest while on bail, resulting in his being incarcerated for several days. Assuming, arguendo, that defendant’s arrest should not have been ordered on the grounds asserted by the State’s Attorney for revocation of bail, it does not affect the validity of the judgment entered and will not be further discussed.

Finally, defendant contends the Burglary and Attempt arose out of the same conduct and the court erred in imposing more than one sentence on'these counts.

In The People v. Johnson, 44 Ill2d 463, 456 NE2d 343, the Supreme Court reviewed a number of cases in which the courts have considered sections 1-7 (m), 3-3 and 3-4 (b) (1) of the Criminal Code of 1961. In view of its discussion of People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651 and People v. Weaver, 93 Ill App2d 811, 236 NE2d 362, we conclude that the Burglary and Attempt are separate offenses, and the court did not err in imposing concurrent sentence for both offenses.

The court thanks appointed counsel for an excellent brief.

For the reasons set forth herein the judgment of the Circuit Court of Monroe County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: JONES, J.

text:
    Johnny Bruce Company, a Corporation, Plaintiff-Appellee, v. John H. Fung and Beatrice Y. Fung, Defendants-Appellants.
    Gen. No. 11,121.
    Fourth District.
    May 18, 1970.
    Rehearing denied May 18, 1970.

      Robert Isham Auler, of Champaign, for appellants.
    Thomas, Mulliken & Mamer, of Champaign (Roger E. Haughney, of counsel), for appellee.
   JONES, J.

Defendants appeal from a judgment for possession rendered for plaintiff by the Circuit Court in a forcible entry and detainer action.

The defendants in their brief present eleven issues to be reviewed upon appeal, the last of which was whether the Circuit Court erred in refusing to approve or disapprove the supersedeas bond filed by defendants. Apparently with some foundation the defendants complain that errors were made by the court in the entry of one order and that notice was not given of the decision of the court and the entry of another order. The pleadings are prolific. Defendants by this appeal seek to attack the errors and omissions of the court below as well as to question substantive points of law. The plaintiff objects to the appeal upon the grounds that it was not perfected within the time prescribed by law.

In the view we take of this appeal, a compendium of the pleadings will be unnecessary. It is sufficient for our purpose to note that the final judgment of the trial court was entered on February 6, 1969, and all issues before the trial court were disposed of at that time. Defendants were in court and had notice of the entry of the final order and at that same time filed, over plaintiff’s objections as to timeliness, their notice of appeal. On the same day, defendants filed their motion to set appeal bond which motion was taken under advisement. On February 7, 1969, the court entered an order fixing the appeal bond in the amount of $3,500 with surety to be approved by the court. The defendants were notified of this order by letter of the Circuit Clerk to the attorney for defendants dated February 7, 1969. On February 17, 1969, the following letter, written upon the letterhead of a bank in Urbana, Illinois, was filed in the case:

“February 17,1969
“Our 101st Year
“Honorable Judge Stecyk
“Court House
“Urbana, Illinois 61801
“Re: John H. Fung
“Dear Judgé Stecyk:
“This letter is to confirm that I have in liquid assets $3,500.00 of John H. Fung which is now in a ‘hold’ situation and will be only released by me only upon receipt of written communication from you.
“It is my understanding that this asset is to be used as a Surety Bond until a final decision has been made by you.
“Thank you.
“Respectfully yours,
(Signature)
“Assistant Vice President
“ec: John H. Fung”

Plaintiff’s motion for writ of restitution was filed and allowed on February 18, 1969. Defendants’ motion for approval of appeal bond was filed and denied on February 20,1969, because of lack of jurisdiction.

Upon motion of the defendants-appellants, this court, pursuant to Supreme Court Rule 305, entered an order for supersedeas and fixed an appeal bond with appropriate conditions in order to have an opportunity to examine the record of the case. Motions to correct the record and for leave to file excerpts were taken with the case. These motions are granted and the record considered as corrected and the excerpts received and considered.

Section 11 of the Forcible Entry and Detainer Act, (c 57, § 11, Ill Rev Stats 1967), provides:

“The provisions of the Civil Practice Act, and all existing and future amendments of said Act and modifications thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder in courts, except as otherwise provided in this Act.”

Section 18 of the same Act (section 19 of the Statute) provides:

“Any party aggrieved by the verdict of the jury or decision of the court upon any trial under this Act may have an appeal, to be taken to the same courts, in the same manner, and tried in the same way as appeals are taken and tried in other cases except that notice of appeal and bond must be filed within 5 days from the rendition of the judgment . . . .”

Under the statute, appeals in actions brought under the Forcible Entry and Detainer Act are governed by that Act which provides that the party must file notice of appeal and bond within 5 days from the rendition of the judgment. These requirements have been deemed to be controlling and jurisdictional, and appeals perfected after the 5 days have been dismissed, notwithstanding the fact that they were taken within the time authorized by the Civil Practice Act. Saxton v. Curley, 112 Ill App 450; Veach v. Hendricks, 278 Ill App 376; Gholston v. Terrell, 292 Ill App 192, 10 NE 2d 868; Prasnikar v. Harmeling, 329 Ill App 341, 68 NE 2d 542; Kruse v. Ballsmith, 332 Ill App 301, 75 NE2d 140; Davis v. Moore, 1 Ill App2d 296, 117 NE2d 587; Sawyer v. Sholem, 2 Ill App2d 167, 118 NE2d 889; Long v. Long, 51 Ill App2d 401, 201 NE2d 241.

The appeal bond not having been filed in apt time, this court lacks jurisdiction and the appeal must be dismissed.

We would further observe that the conditions of the bond upon appeal, by the defendant are fixed by section 19 of the Forcible Entry and Detainer Act (Ill Rev Stats 1967, c 57, § 20). The document filed in this case on February 17 upon the letterhead of a bank, above set forth, is wholly insufficient to constitute an appeal bond in a forcible entry and detainer action. We are mindful of cases such as Pierson v. Lawyer, 225 Ill App 400, and Davis v. Moore, 7 Ill App2d 519, 130 NE2d 117, which permit amendment of a deficient appeal bond to conform to the statutory conditions. However, the foregoing document, which we assume was intended to be the appeal bond in this case, is so totally lacking in its purport that it cannot be determined that it is an appeal bond in a forcible entry and detainer action to be susceptible of amendment.

Appeal dismissed.

CRAVEN, P. J. and TRAPP, J., concur.


author: STOUDER, J.

text:
    Linda Sue Yelm, a Minor, By Joney K. Yelm, Her Father and Next Friend, Plaintiff-Appellant, v. Country Mutual Insurance Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 69-131.
    Third District.
    May 19, 1970.

      Floid B. Brian, of Toulon, and Black, Black & Borden of Peoria, for appellant.
    Barash & Stoerzbach, of Galesburg, for appellee.
   STOUDER, J.

Plaintiff-Appellant, Linda Sue Yelm, commenced this action in the Circuit Court of Henry County seeking damages against Country Mutual Insurance Company, Defendant-Appellee, the action being based on the defendant’s alleged negligent failure to settle plaintiff’s claim. The court sustained a motion to dismiss the complaint based on the failure of the complaint to state a cause of action from which judgment this appeal follows.

The facts are undisputed. Plaintiff secured a judgment in the Circuit Court of Henry County for $40,000 against one Gurney Masters. The judgment was based on Masters’ negligent operation of his car. (Judgment affirmed in Yelm v. Masters, 81 Ill App2d 186, 225 NE2d 152.) At the time of the incident giving rise to plaintiff’s injuries, Masters was insured under a standard automobile liability policy with defendant Country Mutual. After the judgment had become final, defendant paid plaintiff $30,000, the limits of its policy with Masters. The complaint alleges that the insured is a nonresident of Illinois and has no property in this State which can be seized to satisfy the balance of the judgment. The complaint also alleges that the insurance company negligently and carelessly failed to exercise good faith toward the insured and plaintiff when it should have settled the case within the limits of the policy.

This action was commenced by plaintiff directly against the defendant insurance company, Masters, the insured, being neither a party plaintiff nor defendant. It is plaintiff’s standing to maintain this action which forms the principal issue on this appeal. Plaintiff concedes that there is no Illinois authority specifically authorizing direct action against the insurer for excess liability by a third party.

It is beyond question that an insurance company although it acts under a policy which contains limits as to its liability, may so conduct itself as to be liable for the entire judgment recovered against its insured irrespective of its policy limits. Cernocky v. Indemnity Ins. Co., 69 Ill App2d 196, 216 NE2d 198. The question remains as to whether such liability of the insurer may be enforced by a third party injured by the insured.

A substantial majority of the jurisdictions which have considered this question have concluded that the third party has no right to enforce the liability and we are disposed to agree with such conclusion. Tabben v. Ohio Cas. Ins. Co., 250 F Supp 853 (applying Kentucky law) after concluding that the issue had not been decided in Kentucky, refers to cases from other jurisdictions and based thereon concludes that the third party may not maintain the action directly against the insurer. See also, Biasi v. Allstate Ins. Co., 104 NJ Super 155, 249 A2d 18, Murray v. Mossman, 355 P2d 985 (Wash), Duncan v. Lumberman’s Mut. Cas. Co., 91 NH 349, 23 A2d 325, Chittick v. State Farm Mut. Automobile Ins. Co., 179 F Supp 276 (Del), Browdy v. State-Wide Ins. Co., 56 Misc2d 610, 289 NYS2d 711 and 40 ALR2d 195.

The foregoing cases adopt and discuss various reasons for the result reached including absence of privity, absence of duty and absence of damages.

The nature of the duty which forms the basis of the insured’s liability appears to be the most important aspect to be considered. Whether the duty arises from contract or tort is a question difficult to resolve and usually unnecessary to determine in the solution of a particular problem. The duty arises from the relation of the parties, even though the relation itself is based on contract, i. e., the policy of insurance. The duty is not a specific condition of the contract but arises from the exclusive right of the insurer to settle and defend any claim against the insured. An insurer, while protected by its shield of limited liability, ought not to be permitted to use the exclusive control of settlement and defense as an instrument of injury to its assured. In Cernocky, supra, the court discusses the duty of insurer at some length and concludes that the insurer is under a duty to give at least equal consideration to the interest of the insured as it gives its own interest. The duty to exercise due care or good faith is a duty which the insurer owes to its insured and the insurer has no duty to the third party regarding settlement or compromise. Powell v. Prudence Mut. Cas. Co., 88 Ill App2d 343, 232 NE2d 155.

Additionally, the absence of any duty owed to a third party by an insurer has been supported by doubts concerning damage to the third party. If the insurer declines to settle the claim within the policy limits and the third party later receives the limits of the policy, it is difficult to conclude that whether the insurer used bad faith or good faith injured the third party. Plaintiff has relied on four cases applying the law of other jurisdictions which she argues ought to be followed in Illinois, namely, Davis v. National Grange Ins. Co., 281 F Supp 998, Atlantic City v. American Cas. Ins. Co., 254 F Supp 396, Bourget v. Government Employees Ins. Co., 287 F Supp 108, and Turgeon v. Shelby Mut. Plate Glass & Casualty Co., 112 F Supp 355. The Bourget and Turgeon cases (applying Connecticut law) are easily distinguishable from the case at bar and hence, are of no persuasive authority. Each case specifically relies on a Connecticut statute which in substance provides that the third party is subrogated to all rights of the insured against the insurer. This statute is substantially different from the statute in Illinois. Ill Rev Stats 1967, c 73, § 1000.

Section 1000, supra, provides “No policy of insurance against liability or indemnity for loss or damage to any person other than the insured, or to the property of any person other than the insured, for which any insured is liable, shall be issued or delivered in this State after the effective date of this Code by any company subject to this Article unless it contains in substance a provision that the insolvency or bankruptcy of the insured shall not release the company from the payment of damages for injuries sustained or death resulting therefrom, or loss occasioned during the term of such policy, and stating that in case execution against the insured is returned unsatisfied in any action brought by the injured person or his or her personal representative in case death results from the accident because of such insolvency or bankruptcy, then an action may be maintained by the injured person or his or her personal representative against such company under the terms of the policy and subject to all of the conditions thereof for the amount of the judgment in such action not exceeding the amount of the policy.” Plaintiff claims that such Statute authorizes her to bring the present action. Although such argument is supported by the Davis case, supra (applying Virginia law) which interprets a similar statute in Virgina, the reasons set forth in the opinion represent in our view an unjustified interpretation of the statute. The difficulty arises in the interpretation of the phrase “limits of liability.” If such “limits of liability” do not refer to the limitations set forth in the policy, such phrase indeed has no meaning. Further, the statute does not purport to deal with the liability of an insurer for bad faith and hence the statute’s relation to any such rights in a third party are speculative. The failure of the court in Davis to refer to any case directly supporting its holding or to refer to the many cases contrary thereto reduces the persuasiveness of the opinion.

In Atlantic City v. American Cas. Ins. Co., supra, (applying New Jersey law) the only other case cited by plaintiff, the court did conclude that the injured party could bring the action. However, since the action was brought by the injured party as assignee and since the insured was also a party plaintiff the views of the court on this issue are dicta. Biasi v. Allstate Ins. Co., 104 NJ Super 155, 249 A2d 18, holds a third party has no standing to bring the action specifically rejecting Atlantic City v. American Cas. Ins. Co., supra. The result in the Atlantic case is also unsatisfactory because the court declined to discuss the question of damages which under the particular circumstances involved would seem to have precluded any cause of action. The insured neither paid nor was obligated to pay under any circumstances a greater amount than that which it would have paid had the compromise settlement been accepted by insurer.

Plaintiff also referred to several Illinois cases in support of what she asserts to be a “modern trend” in permitting injured third parties to sue directly for excess liability. She cites such cases as Williams v. Madison County Mut. Automobile Ins. Co., 82 Ill App2d 336, 228 NE2d 750, Sobina v. Busby, 62 Ill App2d 1, 210 NE2d 769 and Gothberg v. Nemerovski, 58 Ill App2d 372, 208 NE2d 12, but it is sufficient to say that none of the cases concern the excess liability of an insurer predicated on bad faith. On the contrary Powell v. Prudence Mut. Cas., 88 Ill App2d 343, 232 NE2d 155, a recent decision, holding that the excess liability of an insurer for bad faith could not be litigated in a garnishment action, is consistent with our views.

For the foregoing reasons the judgment of the Circuit Court of Henry County is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip K. Guthrie, Defendant-Appellant.
    Gen. No. 11,029.
    Fourth District.
    May 21, 1970.

      Prentice H. Marshall, of Urbana, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, P. J.

The defendant was indicted with his half brother, John A. Weller, for the murder of Howard Richard Goodin, a Decatur barber. When it appeared that Weller had made a statement to the police directly implicating Guthrie in the killing and had asserted that Guthrie told him that he killed the “barber,” Guthrie’s motion for a severance was granted. Weller was tried and convicted of murder and sentenced 40 to 60 years in the penitentiary. In an opinion filed today, we have reversed and remanded that case for new trial, 123 Ill App2d 421, — NE2d —. The week following Weller’s trial, Guthrie was tried with a different jury panel and was likewise convicted and sentenced to the penitentiary for a like term. Weller did not testify in the trial of Guthrie’s case. Guthrie did testify in Weller’s trial and his testimony was calculated to exculpate Weller from any direct responsibility for the death of the barber. Guthrie’s testimony in the Weller trial was read into evidence in this trial as an admission.

It is the defendant’s first contention that these two cases were so interwoven in point of time and content that the allowance of the severance amounted to fiction rather than fact and that the defendant was thus deprived of due process of law. We cannot agree that the interweaving of the two cases mandates a new trial. The circumstances of the occurrence events irretrievably wove them together. Guthrie, after conference with his attorney, testified in the Weller case and interwove them. It is self-evident that he knew or should have known that his testimony in the Weller trial would be used against him in his own separate trial.

The defendant offered an instruction on involuntary manslaughter and it was refused. The State objected to the instruction on the ground that factually this was either murder or nothing and the trial court indicated that the State’s Attorney was “going for broke.” Guthrie’s testimony in the Weller case, read into evidence in this case, stated in substance that he alone had handled the entire transaction, that Goodin was unhappy with his automobile and about 11 o’clock one night at a tavern he and Goodin decided to carry out a previously discussed plan to defraud Goodin’s insurance company. In conformity with that plan, they drove out into the country, Goodin got a rope from the back end of the car and they both went into a cornfield. Guthrie tied Goodin about his ankles and wrists with some fourteen to eighteen inches of rope between the ankles and wrists. Guthrie stated that they had to tie the knots tight enough so that it would not on its face appear to be a hoax, but an actual robbery. Guthrie had had experience in the Navy with rope tying and stated that he supposed Goodin would have some difficulty in moving around, but probably could move somehow or another. It was a part of the plan that Goodin would attract the attention of someone on the road but that this would not occur until some time intervened, so that Guthrie would be well on his way to Florida for the purpose of selling the car. After Goodin had attracted attention, he would contact the police, report the robbery and then contact Guthrie in Florida, either through Western Union or by notice in the paper, and would mail the car title to Guthrie in Florida. Goodin was to collect the insurance money by representing that his car was stolen and Guthrie was to sell the car in Florida and he and Goodin would split the proceeds.

Guthrie then went by his stepfather’s home and picked up Weller, telling Weller that they would take their often-discussed trip to Florida and that a friend had asked him to drive the car to Florida. Guthrie’s wife and children were not informed of this trip, Weller did not inform his parents, and when Guthrie first went by the house, his stepfather’s car was there and he did not go in. Guthrie also testified, as did two girls from Florida, that he and Weller registered under their own names at several motels in Florida. After about three weeks, they told the girls they were going to Western Union as they needed some money. On their return, they appeared nervous and excited and stated they were returning to Decatur. On their return, Weller called a friend and was advised that the police were after him. Guthrie and Weller then walked out to where Goodin’s body was, and for the first time, Guthrie informed Weller of what had happened. Guthrie called Donald Weller, another half brother, and asked him to meet him at the library. They then drove into an Eisner parking lot and had some conversation. Guthrie asked Donald if he knew anything about the incident and Donald replied that he knew all about the “barber—Johnnie had told him.” Donald then testified that Guthrie told him he wanted him to get a shovel, food and some other things and take him out to where the body was after dark. Guthrie likewise told Weller “I told him where I was going to go. I asked him to get a shovel so I could bury the body.” Such was Guthrie’s testimony.

The defendant complains that it was prejudicial error to give a flight instruction. The circumstances under which the defendant left the State of Illinois were explained solely by his own testimony about the purpose of his trip to Florida. It is well established in Illinois that if there is logic in the presumption that only the guilty would flee, then by the same logic it must be presumed that only the innocent would return and surrender themselves to the authorities and it has been held error in this State not to permit the defendant to give evidence of his voluntary return and surrender to the police. People v. Davis, 29 Ill2d 127, 193 NE2d 841. We perceive no error in the giving of the flight instruction in this case. True enough, the defendant returned to Decatur voluntarily. By his own statements and actions, however, Guthrie establishes that he did not intend to go to the police or be seen by the police until such time as he had disposed of the body. No matter what theory of the facts is accepted, Guthrie’s statement to Donald Weller about burying the body suggests that he left the State of Illinois knowing that a crime had been committed and on his return, set out to bury the evidence of that crime. There was no error in giving the flight instruction. It should be noted that since this case was tried, the Committee on Criminal Instructions has recommended that no flight instruction be given but its substance should be left to argument.

When Weller and Guthrie departed for Florida, what crime was then complete? Was it murder? Was it manslaughter? Or was it only a conspiracy to defraud an insurance company? Under our statute a person is guilty of murder when he kills an individual without lawful justification if in performing the acts which caused the death . . (2) He knows that such acts create a strong probability of death or great bodily harm to that individual . . . Ill Rev Stats 1967, c 38, § 9-1. Goodin was placed about ten rows back in a field, of tall corn, somewhere around midnight, far from the road and on an isolated and little traveled highway. The nearest house was some distance. It is not likely that at that hour and time he would be able to make his way to the road and attract any attention. Guthrie himself felt that Goodin had to be tied tight enough so that the police and the insurance company wouldn’t suspect that the whole deal was a hoax and he, Guthrie, also needed ample time to make his getaway to Florida. From the circumstances in this record, a jury might well believe beyond a reasonable doubt that Goodin was dead before Guthrie left the cornfield or that Guthrie knew or should have known that tying him in this fashion at that place under such circumstances created a strong probability of death or great bodily harm to that individual. No matter what explanation is given for tying Goodin in the cornfield, the cold, blunt fact remains that as done, there was a strong probability of death or great bodily harm from such acts and that he died while so tied. We have no difficulty in believing that reasonable minds could well agree on this point. We therefore conclude that there was sufficient evidence to support and sustain the verdict of the jury as to murder.

What we have just said does not preclude, however, the possibility of involuntary manslaughter. Involuntary manslaughter is defined as “(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Ill Rev Stats 1967, c 38, § 9-3. Thus, the difference between murder and involuntary manslaughter rests in the knowledge in murder that the acts performed create a strong probability of death or great bodily harm to an individual, while in involuntary manslaughter if the acts which cause death are done recklessly, they are done recklessly “. . . when he consciously disregards a substantial and unjustifiable risk . . . and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .” Ill Rev Stats 1967, c 38, § 4-6. Thus, the recklessness intended by the statute would indicate that involuntary manslaughter occurs where the acts are performed with a conscious awareness of risk and a gross disregard thereof. See Committee Comments, Ill Rev Stats 1967, c 38, § 9-3. Accepting for the moment Guthrie’s explanation that these acts were performed for the purpose of deluding and defrauding an insurance company, it seems that the parties used an unusual and unorthodox method to demonstrate that the loss of the automobile was a result of foul play. The jury heard and saw Guthrie on the witness stand and heard his testimony in the Weller trial read by others in his own trial. Not only is his explanation somewhat harpooned by its unorthodox nature, but his credibility is further somewhat watered down by proof of a prior conviction of burglary. Men and women as jurors are not required to believe as jurors that which they would disbelieve as ordinary reasonable citizens. Applying this test to the facts in this case, it is our judgment that there is sufficient evidence in this record to support a jury verdict either of murder or of involuntary manslaughter. It is not our province to determine which verdict is proper. It is for the jury to make the choice between two different concepts or theories as to what crime this evidence actually discloses. It was error not to give them that choice and to give them that choice by the submission of an involuntary manslaughter verdict together with an explanation of the legal principles involved in involuntary manslaughter. There is evidence in this case which, if believed by the jury, would warrant a conviction of involuntary manslaughter. The failure to submit the issue to the jury requires a new trial. People v. Canada, 26 Ill2d 491, 187 NE2d 243; People v. McCrory, 25 Ill2d 213, 184 NE2d 846; People v. Harris, 8 Ill2d 431, 134 NE2d 315.

In view of our holding in this case, other errors assigned such as denial of a continuance, denial of a change of venue, newspaper publicity, and closing arguments of the State’s Attorney are matters not likely to recur on a subsequent trial and require no discussion.

We took with this case a motion to transfer it to the Supreme Court because of constitutional questions raised. In view of our holding, that motion is denied and the judgment of the trial court is reversed and the cause remanded for new trial in accordance with the views herein expressed.

Reversed and remanded.

TRAPP and RICHARDS, JJ., concur.