author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Parr, Defendant-Appellant. Village of Midlothian, Illinois, Plaintiff-Appellee, v. Thomas Parr, Defendant-Appellant.
    Gen. No. 53,933.
    First District, Fourth Division.
    October 7, 1970.

      Henry A. Gentile, of Blue Island, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Arthur L. Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from judgments entered after a bench trial on findings of guilty in five separate offenses. On November 4, 1968, the trial judge revoked a prior order of July 1, 1968, which placed defendant on supervision, and entered his finding of guilty on each offense. Defendant was sentenced to serve ninety days in the House of Correction on the reckless driving charge and fined a total of $245 plus costs on the other charges.

A short summary of the events culminating in the judgments follows. On April 22,1968, defendant received a traffic ticket for “Muffler or Mtr. Vehicle Making Unusual Noise” in violation of a Village of Midlothian local ordinance. On the same day, Lois A. Meter swore out a complaint against defendant for “Reckless Driving” in violation of Ill Rev Stats 1967, c 9514, § 145. Three days later on April 25, 1968, the defendant received another traffic ticket in Midlothian for speeding. On May 1,1968, verified complaints were filed against the defendant for the offenses of “Minor Drinking Alcoholic Liquor” in violation of Ill Rev Stats 1967, c 43, § 134, and “Disorderly Conduct” in violation of a Village of Midlothian local ordinance.

Subsequently, on July 1, 1968, all five actions against the defendant were brought before the trial court. Substantially the same order was entered in each case. The orders recite that defendant pleaded not guilty; that defendant was duly advised by the court of his right to a jury trial; that defendant waived a trial by jury and agreed to a bench trial; that the defendant was placed under court supervision for a period of six months; and that the cases were continued to January 6,1969.

On November 4,1968, on a motion to advance for violation of supervision, the trial court held a hearing, after which it terminated defendant’s supervision and entered its finding of guilty on each of the five offenses and entered the sentence and fines hereinabove set forth.

On December 13, 1968, the trial court denied defendant’s motions for a new hearing on the violation of supervision, for a new trial, and to arrest judgment.

Pursuant to a motion made by the State to correct the record, the trial court on January 19, 1970, granted the State’s motion to show that the common-law records pertaining to the five aforementioned offenses indicate and reflect that evidence was taken and heard by the trial court on July 1, 1968.

On the same day, the State also filed an Amendment of Record Pursuant to Supreme Court Rule 329 which sought to relate the proceedings of July 1, 1968. The trial court approved the amendment of record. We granted leave to file the proposed amendment in this court but have since reconsidered and order it stricken since the proposed amendment is not a material omission or inaccuracy provided for in Supreme Court Rule 329. See People v. Miller, 365 Ill 56, 58-59, 5 NE2d 458. The proposed amendment is, in fact, a Report of Proceedings, and as such it does not comply with Supreme Court Rule 323 (c) which provides the method for settling such a report when no verbatim transcript is available. This method was not followed in the instant case. In addition, the Rule provides that any party, other than the appellant may file such a proposed report of proceedings within twenty-one days after the notice of appeal is filed. In the instant case the proposed report of proceedings offered by the State was not filed until one year after the notice of appeal.

Opinion

Defendant has not furnished this court with a report of proceedings of the trial held on July 1, 1968, although the common-law record shows that evidence was heard and considered by the trial judge. While defendant admits that there were proceedings conducted by the trial court on July 1, 1968, he still maintains that no “evidence” was heard in the trial court. However, on appeal, the record is our only available source of information of what happened in the court below. People v. Berkowski, 385 Ill 392, 52 NE2d 710. As this court stated in Village of Midlothian v. Walling, 118 Ill App2d 358, 361, 255 NE2d 23:

We must rely upon the record “which imports verity and is unimpeachable evidence of the proceedings in the lower court.” People v. Clark, 30 Ill2d 67, 73, 195 NE2d 157. See, also, People v. Day, 404 Ill 268, 271, 88 NE2d 727; and People v. Berkowski, 385 Ill 392, 393-394, 52 NE2d 710.

We also note that at the conclusion of the proceedings conducted on July 1st the defendant agreed to supervision. At the hearing on defendant’s violation of supervision held on November 4, 1968, defendant’s attorney stated:

We agreed that Mr. Thomas Parr (defendant) would be placed on supervision and no Order was entered as a finding of guilty that date. No order except continue the case for six months until January sometime.

Defendant has characterized “supervision” as an effective and useful extrastatutory tool in the administration of justice. Defendant states that he “understands the mechanism to include a waiver of the right to a speedy trial in return for a delay in the proceedings long enough to allow reconsideration of the advisability of going on with the prosecution. Defendant can even accept the propriety of requiring a jury waiver under the circumstances. ... In these cases the Court may simply continue the case for a substantial period of time during which Defendant’s behavior will be scrutinized and after which the State may decide whether to prosecute.”

We cannot agree with defendant’s characterization of supervision for if no evidence was heard, the trial court would be assuming the right to punish, or at least give corrective treatment to someone who had not been proven guilty of any offense. Rather, supervision as practiced in cases dealing with minors has been used as a mechanism after a trial where the proffered evidence shows that the defendant is guilty of the offense charged. The entry of the finding of guilty by the trial court is then delayed with defendant’s consent and he is placed on supervision for a specific period of time.

When a trial court places a minor on supervision, it is with the hope of rehabilitating him. If at the termination of the supervision period, there is reason to believe that the defendant has been rehabilitated, the finding of guilty is not entered and the defendant is discharged, for the purpose of supervision is to save the minor a criminal record. However, if the court is advised at any time during the period of supervision of activities which demonstrate a defendant’s misbehavior or lack of cooperation with an appointed supervisory agency, the court may then enter its finding of guilty on the date for which supervision was to terminate or at any time prior thereto.

As heretofore stated, the principle of supervision is predicated on a trial or on a stipulation of facts between the parties which show a defendant to be guilty of the offense charged. In the instant case, the record shows that evidence was heard July 1, 1968. The trial judge found, in effect, that there was sufficient evidence presented to warrant findings of guilty but delayed entry of these findings by placing defendant on supervision for six months in the hope of rehabilitating him. The court would have had no right to place defendant on supervision unless the evidence heard on July 1, 1968, showed that the defendant was guilty of the offenses as charged.

In November 4, 1968, each of the five causes against the defendant was advanced for violation of supervision. At this time the trial court heard witnesses who testified to the various activities of the defendant. This testimony formed the grounds for the revocation of supervision. Defense counsel was afforded the opportunity to cross-examine the witnesses called by the State, and he exercised this right with each witness. The evidence presented to the trial court showed that the defendant, after July 1, 1968, was seen speeding his car on several different occasions; was stopped by the police for making an illegal right turn; drove his car through the lot of the Largent’s Rest Home, making an unbearable amount of noise; drove his car without a muffler; held an all-night party in a garage with bottles breaking; made late night noises working on his hotrod; and was involved in an automobile accident on September 6,1968. Based on this evidence, the trial court terminated defendant’s supervision and entered its delayed finding of guilty on each of the five charges against defendant as to which evidence had been heard on July 1,1968.

We find that the trial court followed the correct and proper procedure for placing defendant on supervision as well as the later termination of this supervision period and entering the findings of guilty.

Defendant also contends that the complaint filed against him for reckless driving was defective and void. The original complaint charged that:

Lois Meter complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that Thomas Parr (defendant) has, on or about 4-22-68 at 14710 S. Kostner Ave. committed the offense of Reckless Driving in that he knowingly, intentionally and with legal justification did drive North on Kostner Ave and then East on 147th Street at a high rate of speed and spinning his wheels in such a reckless manner so as to alarm and disturb the complainant with regards to the safety of the children on the street in violation of Chapter 99% Section 48 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.

The Code of Criminal Law and Procedure, Ill Rev Stats 1967, c38, § 111-3(a) provides:

Form of Charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.

The complaint in the instant case was in writing, stated the name of the offense, cited a statutory provision alleged to have been violated, set forth the nature and elements of the offense, stated the time and place of the offense, and stated the name of the accused.

Defendant argues that the complaint is void since the wrong statutory citation is given, chapter 99½, § 48, instead of chapter 95½, § 145, and because he was charged with having committed the offense “with legal justification.” We are of the opinion that the miswriting of the statute citation is a formal rather than a substantive defect in the complaint, and that the error did not violate defendant’s constitutional right to be apprised of the nature of the charge against him. People v. Hall, 55 Ill App2d 255, 204 NE2d 473, and People v. West, 128 Ill App2d 63, 262 NE2d 323.

Furthermore, the miswriting of the term “with” instead of “without” in relation to “lawful justification” is also a formal defect, whether the error is considered typographical or a clerical oversight, and did not mislead the defendant as to the nature of the charge against him.

Pursuant to Ill Rev Stats 1967, c 38, § 111-5(a) the State has moved to amend the original complaint for reckless driving. Since we have found that the aforementioned errors were formal defects of miswriting, the State’s motion to amend is granted. The amended complaint reads:

That Thomas Parr has, on or about 4/22/68, at 14710 South Kostner Avenue committed the offense of Reckless Driving in that he knowingly and intentionally and without legal justification did drive north of Kostner Avenue and then east on 147th Street at a high rate of speed and spinning his wheels in such a reckless manner so as to alarm and disturb the complainant with regard to the safety of the children on the street. In violation of Chapter 95½, Section 145, Paragraph 48, Illinois Revised Statutes, 1967, and against the peace and dignity of the People of the State of Illinois.

[¶] The defendant next argues that the complaint is void because it fails to allege the requisite mental state required under the reckless driving statute. Ill Rev Stats 1967, c 95½, § 145. This statute provides:

Reckless driving, (a) Any person who drives any vehicle with a willful or wanton disregard for the safety of persons- or property is guilty of reckless driving.

The mental state averred in the instant complaint is “knowingly, intentionally.” The Code of Criminal Law and Procedure, Ill Rev Stats 1967, c 38, § 4-5(b), provides that conduct performed “knowingly” is performed wilfully. Further, in People v. Williams, 79 Ill App2d 56, 60, 222 NE2d 915, the court discusses the use of the words “knowingly” and “intentionally”:

Without attempting to exhaust all authorities, the terms “willful” or “willful misrepresentation” have a similar well accepted meaning and have been defined under other statutes in many decisions as synonymous with “intentionally,” “designedly,” “knowingly” and “without lawful excuse.”

We find that the reckless driving complaint alleges the requisite mental state.

Defendant also claims that the court erred in denying his motion in arrest of judgment in the reckless driving charge. A motion in arrest of judgment made pursuant to Ill Rev Stats 1967, c 38, § 116-2, is limited in scope as to whether the complaint states an offense or whether the court has jurisdiction of the cause. A post-trial motion in arrest of judgment for failure to state an offense will be allowed only where the defect in the complaint relates to the noncompliance with Ill Rev Stats 1967, c 38, § 111-3, which requires a description of the nature and elements of the offense. People v. Patrick, 75 Ill App2d 93, 220 NE2d 243, affd 38 Ill2d 255, 230 NE2d 843. Since we have already held that the instant complaint sufficiently described the nature and elements of the offense of reckless driving, we find that the trial court properly denied defendant’s motion in arrest of judgment.

Defendant also argues that even if we affirm the findings of guilty against him, the cause should be remanded for the trial court’s failure to hold a hearing in aggravation and mitigation. The burden of presenting mitigating circumstances and making a substantial showing of evidence in mitigation rests upon the defendant and his failure to request such a hearing constitutes a waiver thereof. People v. Fuca, 43 Ill2d 182, 251 NE2d 239; People v. Nelson, 41 Ill2d 364, 243 NE2d 225; and People v. Riso, 129 Ill App2d 356, 264 NE2d 366. In the instant case, defendant’s failure to request a hearing in mitigation constituted a waiver of his right to present any mitigating evidence.

Defendant’s final contention is that his sentence for reckless driving was excessive. A person convicted of reckless driving for the first time shall be punished by imprisonment for a period of five to ninety days or by a fine of $25 to $500, or both. Ill Rev Stats 1967, c 95½, § 145(b). In the instant case, the trial court sentenced the defendant, aged nineteen, to the maximum prison term of ninety days. After reviewing the nature of the charge and all the circumstances surrounding the entry of the judgment, we conclude that the sentence of ninety days is not warranted. The finding of guilty on the reckless driving charge is affirmed; however, pursuant to Supreme Court Rule 615 defendant’s sentence on this charge is modified to the payment of a fine of $200 and costs.

We also affirm the judgments entered on the other four charges.

Affirmed as modified.

ENGLISH and LEIGHTON, JJ., concur.

         Reckless Driving
      Drinking Alcoholic Liquor by a Minor
      Disorderly Conduct
      Speeding
      Operating an Automobile Which Emits Unusual Noises

       Formal Defects in a Charge.) An indictment, information or complaint which charges the commission of an offense in accordance with section 111-3 of this Code shall not be dismissed and may be amended on motion by the State’s Attorney or defendant at any time because of formal defects, including:
      (a) Any miswriting, misspelling or grammatical error;


source: Caselaw Access Project

author: MR. JUSTICE LEIGHTON

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Townsend, Defendant-Appellant.
    Gen. No. 54,389.
    First District, Fourth Division.
    October 7, 1970.

      Julius Lucius Echeles and Jo Anne F. Wolfson, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony Montemurro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This was a prosecution for murder. Defendant waived trial by jury. He was convicted of voluntary manslaughter and sentenced to serve two to four years. In this appeal the issue is whether the evidence supports the conviction. Resolution of this issue requires a summary of the testimony.

August 16, 1968, at about 6:00 p. m., defendant’s brother, Jimmy Townsend, with two women passengers in his car, neared his home. He saw his niece, Charlene, fighting with his daughter, Bettie Jean. Moments later, Charlene had Bettie on the ground. Jimmy tried to pull Charlene away. Mary Townsend, Jimmy’s wife, testified that at the time of the quarrel, “a good many people” were nearby. She saw the two women passengers with her husband and saw him go to where the two girls were fighting. Mrs. Townsend testified that when her husband tried to pull Charlene from Bettie, the defendant appeared suddenly; and then her little boy told her, “Mom, look at big brother bleeding (sic).” Defendant had stabbed Jimmy Townsend with a knife, causing a lung and heart wound from which he died a few moments later.

Bettie Jean testified and described her altercation with Charlene. She said her father tried to pull Charlene away; but the defendant came upon them suddenly and stabbed her father. Mrs. Ines Washington and her daughter Joanne witnessed the entire incident. They described the altercation, the attempts of Jimmy Townsend to separate the girls, the sudden attack by defendant and the fatal stabbing. When these four witnesses were asked, they each swore that Jimmy Townsend was unarmed.

Defendant called Charlene and four persons who were present. Each, in varying degrees, described the altercation between Charlene and Bettie Jean; but each testified that when Jimmy Townsend went to pull Charlene from Bettie, he was armed with a straight razor. Defendant testified he saw the girls fighting; he saw his brother Jimmy on top of Charlene; and that he went to Jimmy, “[w]hen I told him to get up off my daughter, he swings at me with the razor. I fell back like that. (Indicating) I fell that way. That’s what I done (sic).” Defendant admitted he stabbed Jimmy with his spring knife, but claimed he did it in self-defense.

Defendant was later apprehended in Mississippi, returned to Chicago and charged with murder. The trial judge, after hearing the witnesses, found defendant guilty of voluntary manslaughter. Thereafter, defendant moved “for judgment of acquittal notwithstanding the verdic (sic).” In support of the motion, he argued that the evidence justified only a conviction for murder or a finding of not guilty; and that the trial judge erred in rejecting the claim of self-defense. The motion was denied. In giving the reasons for his ruling, the trial judge said he did not believe Jimmy Townsend took a swipe at the defendant with a razor. “I believe from the evidence that the man (meaning defendant) was acting under a certain passion, unjustifiably so.” In this court, defendant argues that these findings cannot be sustained.

Whether Jimmy Townsend was armed, whether he attacked the defendant with a razor and whether defendant acted in self-defense when he stabbed the deceased, were questions of fact to be decided by the trial judge. People v. Sudduth, 14 Ill2d 605, 153 NE2d 557; People v. Golson, 392 Ill 252, 64 NE2d 462. In deciding these questions, the judge had to resolve the conflict between the testimony of defense witnesses who swore Jimmy Townsend was armed and of prosecution witnesses who said he was not. This conflict was accentuated by a police officer who testified that when he moved Jimmy to the hospital, he did not see a razor near the body. On the other hand, another officer testified that he came to the scene of the killing a half-hour later and found a razor nearby. Although the officer swore there was considerable blood on the razor and the crime laboratory chemical tests yielded positive reactions, the laboratory report stated that the amount of bloodstain was so small that it precluded any serological tests.

Charlene testified that she saw the razor in her uncle’s hand and it was “shiny.” However, the trial judge found “ [t] hat this razor is rusty, is very firm and it takes a substantial amount of pressure to close the blade into the handle.” Charlene testified that she was cut three times with the razor. Yet, she made no complaint about her wounds, nor did she seek medical attention until the following day. When she was asked to identify the doctor who treated her, she said the doctor’s office was at 621 North Division Street. The trial judge was quick to observe that Division Street in Chicago was an east-west street. Therefore, the address given did not exist. From these conflicting facts, the State argued that Jimmy Townsend was not armed when defendant fatally stabbed him.

When as in this case, the evidence is conflicting, it was for the trial judge to resolve the conflict and determine the credibility of the witnesses. People v. Parker, 120 Ill App2d 71, 256 NE2d 67. We will not substitute our judgment as to credibility of witnesses for that of the trial judge unless the evidence is so improbable or unsatisfactory that it raises a reasonable doubt of defendant’s guilt. People v. Hoffman, 45 Ill2d 221, 226, 258 NE2d 326; People v. Hampton, 44 Ill2d 41, 45, 253 NE2d 385. Here, the trial judge believed the State’s evidence and rejected the contrary accounts of the occurrence as given by defendant’s witnesses. People v. Jordan, 18 Ill2d 489, 165 NE2d 296. We find no reason to disturb the trial judge’s apparent conclusion that defendant had no occasion to act in self-defense when he killed his brother. People v. Young, 100 Ill App2d 377, 241 NE2d 507.

The remaining question is whether the evidence supported the court’s finding that defendant was guilty of voluntary manslaughter. Ill Rev Stats 1967, c 38, § 9-2. From the evidence he heard, the trial judge found that when defendant killed his brother he was provoked into a passion that reduced the killing to voluntary manslaughter. The evidence, beyond a reasonable doubt, supports the finding and the conviction. People v. Walker, 55 Ill App2d 292, 204 NE2d 594; People v. Cooke, 93 Ill App2d 376, 236 NE2d 97; and see People v. Williams, 95 Ill App2d 421, 237 NE2d 740. The judgment is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

       § 9-2. Voluntary Manslaughter
      (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
      (1) The individual killed, or
      (2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
      Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
      (b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Broome, Defendant-Appellant.
    Gen. No. 54,043.
    First District, First Division.
    October 13, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James H. Feldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendant, Robert Broome, was convicted by a jury on March 6, 1969, for the offense of burglary in that he, without authority, knowingly entered into the basement of an apartment building with the intent to commit the crime of theft in violation of chapter 38, section 19-1 of Ill Rev Stats 1967. The defendant appeals his conviction and urges as grounds for reversal (1) that he was not proven guilty beyond a reasonable doubt; (2) that he was so intoxicated as to be incapable of forming the intent to commit a theft; and (3) that the trial judge prejudiced his right to a fair trial by questioning a witness in a partial manner.

This case presents conflicts in the identification testimony as well as the testimony fixing the location of the proceeds of the alleged burglary. Three eyewitnesses testified as to the identity of the alleged burglar and the location of the allegedly stolen television set and record player.

The first witness, Leslye Ann Edinburg, a real estate manager for Century Management Corporation, which owns the apartment building at 6333 South Ingleside, Chicago, where Mrs. Edinburg resides with her daughters, saw from the back porch of her third-floor apartment, after 10:45 p. m., on the evening of November 14, 1968, in a pouring rain, a figure of a man in her backyard. She could not identify the figure she saw either as the defendant, or as Mr. Marshall. She admitted in court that Mr. Marshall has the same build as the defendant, and that she had Mr. Marshall fix her door that night. She did see Mr. Marshall later that night in the custody of the police. Mrs. Edinburg also testified that when she later went to the basement, the record player and television set were at the entrance to the basement door.

The second witness, Willie Blue, fifteen years of age, was visiting at Mrs. Edinburg’s apartment. He left about 10:45 p. m., saw a man going down the alley with a television set and record player “and he put it in a black car,” Marshall’s car. Willie Blue also testified that this man came within twenty feet of him and that he could identify the man as the defendant. However, Blue admitted that he knew Mr. Marshall; that he saw him every day; that Mr. Marshall is about the size of and looks like the defendant ; and that he, Willie Blue, had eyeglasses but was not wearing them that night in the pouring rain.

The third witness, Troy Benton, eighteen years of age, was working as an assistant janitor for Mrs. Edinburg. He was also visiting the Edinburg apartment that night. Troy Benton went downstairs from the third-floor apartment only after Willie Blue went down and came back upstairs and said someone had broken into the basement. Benton testified that he saw the defendant standing in the backyard with a record player in his hand. It is to be noted that Benton’s observation of the defendant holding a record player in his hand occurred at a point in time much later, than Willie Blue’s observation of the defendant taking the record player and television to Marshall’s car in the alley.

The State contends that the discrepancies in the testimony of these witnesses are neither substantial nor significant, and hence do not provide grounds for reversal, citing People v. Gray, 106 Ill App2d 110, 245 NE2d 626 (1969). We disagree. We find the evidence conflicting on the vital factual questions of identification and location of the proceeds of the burglary and so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. It is well settled that a conviction will be reversed where the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt, People v. Butler, 28 Ill2d 88, 190 NE2d 800 (1963); People v. Pellegrino, 30 Ill2d 331, 196 NE2d 670 (1964), even where the conviction is a result of a jury trial. People v. Coulson, 13 Ill2d 290, 149 NE2d 96, (1958). If a conviction is to be sustained, it must rest on the strength of the People’s case and not on the weakness of the defendant’s case. People v. Coulson, supra. Here, the People’s case rests on one witness’ observation of a figure of a man; a fifteen-year-old boy’s identification under adverse circumstances; and a third witness’ observation of an occurrence which is in direct conflict with the testimony of the second witness. Under these circumstances, we cannot say that no reasonable doubt of the defendant’s guilt remains or that every reasonable hypothesis inconsistent with innocence is excluded. People v. Butler, supra.

Defendant raises for review the added contentions: (1) that he was so intoxicated that he was wholly incapable of forming the intent with which he was charged; and (2) that the trial judge acted as an advocate in examining witnesses.

While intoxication so extreme as to suspend the power of reason may be a defense to prosecution for offenses where specific intent is a necessary element, People v. Tillman, 26 Ill2d 552, 557, 182 NE2d 731 (1963); Schwabacher v. People, 165 Ill 618, 629, 46 NE 809 (1897); People v. Soznowski, 22 Ill2d 540, 177 NE2d 146 (1961), and while the trial judge’s assumption of the role as advocate and chief examiner may prejudice the defendant, People v. Giacomino, 347 Ill 523, 529, 180 NE 437 (1932); People v. Trefonas, 9 Ill2d 92, 99, 136 NE2d 817 (1956), our conclusion on the first error assigned makes it unnecessary for us to consider further errors assigned.

Accordingly, for the reasons given, the judgment of the Circuit Court of Cook County, Criminal Division is reversed.

Judgment reversed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Kielczynski, Defendant-Appellant.
    Gen. Nos. 54,089, 54,091. (Consolidated.)
    First District, First Division.
    October 13, 1970.

      Sherman, Schachtman & Stein, of Chicago (Jack G. Stein, Albert Brooks Friedman, and Gerald Nussbaum, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert A. Novelle and Anthony M. Montemurro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant William Kielczynski was found guilty of gambling in violation of Ill Rev Stats, c 38, § 28-1(a)(5) (1967). He was fined $75. On appeal, defendant contends that (1) the court erred in denying defendant’s motions to quash the search warrant and to suppress the evidence; (2) he was not charged with a crime in the complaint; and (3) he was not proved guilty beyond a reasonable doubt.

On January 12, 1968, Chicago Police Officer John Tobin appeared before a judge in the Circuit Court of Cook County and presented a complaint for the issuance of a search warrant, alleging that through information received from a reliable informant, corroborated by his dialing a number supplied by the informant and listening to the informant place a wager on a horse race over the phone, he had probable cause to believe that instrumentalities of gambling were located “upon the (person and) premises” located at 4523 West Belmont, Chicago, which is a service station owned and operated by the defendant. A search warrant was issued, dated January 12, 1968, in which the court stated:

. . Upon examination of the complaint, I find that it states facts sufficient to show probable cause.
“I therefore command that you search The Belmont and Kolmar Service Station, located at 4523 West Belmont, Chicago, Cook County, Illinois, and seize all instruments, implements, and apparatus, kept, used, or provided to be used in illegal gambling, to wit:
“Scratch Sheets, records of bets on horse races and the telephone numbered 283-9259, which have been used in the commission of or which constitute evidence of the offense of gambling. . . .”

Pretrial motions to quash the search warrant and to suppress physical evidence were heard and denied by the trial court.

At the trial, Officer Tobin testified as follows: “My name is John Tobin, assigned to the gambling unit of the Vice Control Division. On January 12, 1968, I went to 4523 W. Belmont with a search warrant. Upon entering the premises, I observed Mr. Kielczynski standing at the South end of the gas station. I approached him, announced my office and informed him that I had a search warrant. A search of his person revealed slips of paper in his shirt pocket and $53.00 in currency. The slips of paper, marked State’s Group Exhibit A for identification, are 3 slips of paper, $53.00 in United States currency and seventy-five parlay cards which I found and a scratch sheet of January 12, 1968 without markings on it which was in his rear pocket. In my opinion, the slips of paper are records of bets on horse races and the other items are gambling paraphernalia.”

On cross-examination Officer Tobin stated: “I took the slips of paper and money from a uniform pocket. I believe he had two uniforms on, one over the other. I don’t recall, but it was an extremely cold day. The parlay cards were taken from a desk in the office and the unmarked scratch sheet from his rear pants pocket. When we told defendant I was a police officer and had a warrant to search the premises he gave me no argument, and did not interfere with my search in any way.”

The defendant testified that he owned the premises herein, which was a “gas station” and on January 12, 1968, he and his son were working there. He further testified that prior to the day in question one William Spila had worked there, and that the uniforms worn while working were owned by the oil company servicing his station. He stated it was cold that day and he was wearing two such uniforms, which were in the nature of coveralls. He further stated he knew nothing of the items recovered by Officer Tobin, but otherwise corroborated the officer’s testimony.

Initially, defendant contends that the trial court erred in denying the motions to quash the warrant and to suppress the evidence obtained at the service station. He argues that “the warrant did not describe a person to be searched, that the complaint which led to the issuance of [the search warrant] did not state facts sufficiently to show probable cause, that it was predicated solely on hearsay information not corroborated. Defendant was not allowed to present evidence in support of the written Motion which would go beyond the four corners of the search warrant and affidavit. The Motion to Quash the search warrant was denied without any evidence being presented by the plaintiff against said Motion. The Motion to Suppress was similarly denied.”

Defendant, to support his contention that it was improper to deny defendant’s motions to quash the warrant and suppress the evidence, relies on People v. Bak, 45 Ill2d 140, 258 NE2d 341 (1970), and People v. Mitchell, 45 Ill2d 148, 258 NE2d 345 (1970).

The State asserts that defendant’s reliance on the foregoing cases is without merit because “on March 24, 1970, the Supreme Court reversed its previous position in these cases and held that a defendant would not be allowed to go beyond the four corners of the warrant to challenge its issuance on probable cause.” Our examination of the opinions in both cases verified the assertion of the State.

In People v. Bak, supra, the court stated (p 144):

“This majority of the court believes that both constitutions [United States and Illinois] contemplate only that a judicial officer find probable cause for the issuance of a warrant based on the evidence under oath that has been presented to him by the one requesting the warrant. It is contemplated that the credibility of the affiant or others offering evidence is for the judicial officer. If he finds the evidence worthy of belief and sufficient to form probable cause, this judicial determination cannot be relitigated through a later disputing of the evidence.
“The view that probable cause for the issuance of a search warrant is to be tested by the evidence originally presented to the judicial officer and that alone is consistent with holdings that the prosecution is precluded from offering supplemental information to sustain a showing of probable cause. The Supreme Court in Aguilar v. Texas, 378 US 108, 109, 12 L Ed2d 723, 725, n 1, said, ‘It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention.’ [P 145.]
«
“Too, the view permitting a challenge to the matters on which probable cause was found would often, if not typically, result in one judicial officer originally evaluating the credibility of the affiant and another reassessing it in the later motion to suppress. . . . The majority of this court consider that successive or split evaluations by different judicial officers of the credibility of the affiant and others originally offering evidence were not contemplated in the search warrant procurement procedure.” [P146.]

In People v. Mitchell, the court stated (pp 152-153):

“Following the decision of the Supreme Court of the United States in Jones v. United States (1960), 362 US 257, at 272, 4 L Ed2d 697, 708, 80 S Ct 725, we stated in People v. Jackson, 22 Ill2d 382, 387, that ‘hearsay may be used to establish probable cause for a warrant, so long as there is a substantial basis for crediting the hearsay.’ ”

Also, on pages 153-154:

“. . . ‘probability, and not a prima facie showing, of criminal activity is the standard of probable cause, . . . ; that affidavits of probable cause are tested by much less vigorous standards than those governing the admissibility of evidence at trial, . . . ; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, . . . ; and that their determination of probable cause should be paid great deference by reviewing courts, Accordingly, after thorough review of the warrants in question, we find that they were properly issued on probable cause and subscribe to the standards enumerated in Aguilar. Here, the affiants specifically averred that they had received information from a ‘reliable informant’ who had in the past supplied them with information which had proved true, exact and accurate and which resulted in enumerated arrests and convictions. Further, the affiants specifically related the ‘underlying circumstances’ from which the informant concluded that illegal gambling operations were being conducted, i. e., when the informer desired to make a wager on a horse race, he would call a specific telephone number. Too, to the extent that affiants overheard the conversation, albeit one-sided, what they heard (the informer placing the bet and T may call you later’ or ‘That’s all for now’) corroborated, to a limited extent, the informer’s tip. Accordingly, after giving due deference to the warrants in question . . . and after thorough analysis of the ‘underlying circumstances’ ... we conclude that the warrants here issued were based on probable cause.”

We conclude the court properly denied defendant’s motions to quash the search warrant and to suppress the evidence because the search warrant was issued on probable cause within the standards enumerated in both People v. Bak and People v. Mitchell, supra.

Next considered is defendant’s contention that he was illegally searched, and the trial court erred in failing to grant his motion to suppress the evidence. Defendant argues that the slips of paper, money and scratch sheet found on his person were inadmissible because the search was illegal, not having been authorized by the search warrant. Defendant points out that while the complaint for the warrant specifically sought to name a person to be searched, the magistrate or judge who signed it chose only to enumerate the premises and did not name any persons. Defendant argues that the evidence indicates that the officer first searched the person and then the premises, which he was not authorized to do.

It has been held in Illinois that a search warrant for a person must describe the person to be searched as specifically and accurately as is required in regard to the description of the place to be searched in the case of a warrant to search a place. (People v. Staes, 92 Ill App2d 156, 235 NE2d 882 (1968).) We do not believe this rationale applies here. In the instant case the place and things to be found were described with particularity in the search warrant, and the officer searched a person who happened to be at that place. Ill Rev Stats, c 38, § 108-9 states:

“Detention and Search of Persons on Premises.) In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:
“ (a) To protect himself from attack, or
“(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant.”

Similar searches have been found reasonable. (People v. Harrison, 83 Ill App2d 90, 226 NE2d 418 (1967); People v. Pugh, 69 Ill App2d 312, 217 NE2d 557 (1966).) We conclude that the search of defendant’s person, who was on the premises described in the instant search warrant, was reasonable and necessary for the execution of the warrant. Therefore, the motion to suppress the evidence recovered from this search was properly denied.

Defendant next contends that he was not charged with a crime. The record shows that the complaint stated: “William Kielczynski, has, on or about 12 January, 1968, at 4523 West Belmont Avenue, committed the offense of Gambling, in that he used or kept a book, or instrument, or apparatus, for the purpose of recording and registering bets and wagers, in violation of Chapter 38, Section 28-1 (a) (5), of the Illinois Revised Statutes.” The statute provides in pertinent part:

“ (a) A person commits gambling when he:
(i
“(5) Knowingly owns or possesses any book, instrument or apparatus by means of which bets or wagers have been, or are, recorded or registered.”

Defendant argues that the complaint did not set out the nature and elements of the crime of gambling under the statute because the charge contained the words “for the purpose” instead of the words “have been, or are.” In support, defendant cites People v. Galan, 110 Ill App2d 98, 249 NE2d 118 (1969). This case is not in point here. There the court stated (p 100):

“The State attempted to prove the defendant guilty by evidence of an effort to dispose of instruments which the gambling community utilizes to record wagers. This was insufficient to prove an essential element of the crime: that wagers had been or were recorded on the instruments seized.”

The State argues that the complaint herein met the tests set forth in People v. Patrick, 38 Ill2d 255, 230 NE2d 843 (1967), where the court stated (p 258):

“An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.”

We agree. The complaint adequately informed defendant of the precise offense with which he was charged, and he was not prejudiced by the inclusion of the words “for the purpose.”

Finally, the defendant contends that he was not proved guilty beyond a reasonable doubt. He argues that he testified that he had no knowledge of the betting slips, scratch sheet or parlay cards, that the uniforms belonged to the oil company and a Mr. Spila had worked at the station before January 12, 1968. It is the defendant’s contention that the paraphernalia found could have belonged to Mr. Spila or someone else. He argues that there is no evidence of the age of the betting slips or parlay cards, and that they could have been placed there by any number of innocent ways. In support defendant cites People v. Lucas, 109 Ill App2d 303, 248 NE2d 706 (1969), where the court stated (p 307):

“The fact of possession must be shown beyond a reasonable doubt. It is also the law that where conditions may be explained on a hypothesis of innocence, the courts must accept that explanation. People v. Gregor, 359 Ill 402, 194 NE 550.”

The State argues that its proof that defendant had in his possession betting slips, parlay cards and a scratch sheet, and that the defendant was the owner of the gas station and was in control of it at the time these items were seized, proved defendant’s guilt beyond all reasonable doubt. The State asserts that the evidence produced by the State was conclusive, and the only question for review is the credibility of the witnesses, and since it was the duty of the trial judge to weigh and assess the credibility of the witnesses (People v. Batie, 113 Ill App2d 139, 251 NE2d 769 (1969)), this court should not reverse its judgment.

The evidence here shows that defendant had on his person betting slips and a scratch sheet. On the premises of the station owned and operated by defendant seventy-five parlay cards were found. In People v. Pugh, 36 Ill2d 435, 223 NE2d 115 (1967), the court stated (p 436):

“ [W] here narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt.”

Also, it is said in People v. Mitchell, 45 Ill2d 148, 258 NE2d 345, at page 154:

“It is well established that we will not disturb the findings of the trier of fact and substitute our own conclusions unless the proof is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt.”

After reviewing the evidence as a whole, we conclude that the defendant herein was proved guilty beyond a reasonable doubt.

For the reasons stated, we find that the judgment should be affirmed.

Affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    People ex rel. Paul Powell, Secretary of State, Plaintiff-Appellant, v. Dean Richard Luttrell, Defendant-Appellee.
    Gen. No. 53,912.
    First District, Third Division.
    October 15, 1970.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and Donald J. Veverka, Assistant Attorneys General, of counsel), for appellant.
    Henry C. Szala, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This action was brought by the State to recover a privilege tax imposed by the Motor Vehicle Act of 1951. The trial court held that the State had failed to exercise reasonable diligence in obtaining service of process and dismissed the suit. On appeal, the State contends that neither the requirement of reasonable diligence nor the doctrine of estoppel are applicable. The facts follow.

In 1951 the General Assembly amended section 9 of the Motor Vehicle Act (Ill Rev Stats, c 95½, § 9) which then provided that the operator of a registered second division vehicle (truck, bus, trailer, etc.) pay either an annual flat license tax or an optional mileage weight license tax. The amendment, effective January 1, 1952, deleted the mileage weight tax option and substantially increased the flat annual tax. On November 20, 1951, the Circuit Court of Sangamon County declared the amendment unconstitutional and enjoined the Secretary of State from collecting the tax it imposed. Defendant applied for registration of his vehicle and for the privilege of operating it on public highways in the State during 1952. At that time he was given notice that additional taxes based on the amendment might be due. The registration application stated:

“Notice: the rate schedule on this form does not include the 1952 tax increase held invalid by the Sangamon County Circuit Court. Additional tax will be due if the validity of such increase is sustained by the Supreme Court.”

The amendment was held constitutional by the Illinois Supreme Court and the United States Supreme Court. Bode v. Barrett, 412 Ill 204, 106 NE2d 521 (1952), affd 344 US 583, 97 L Ed 567, 73 S Ct 468 (1953).

The State commenced this action against the defendant on June 21, 1955, and a summons issued the same day was returned unserved. Alias summonses were issued and returned unserved in October 1959 and May 1962. Finally, an alias summons was issued and served on November 9, 1967. Defendant moved to dismiss the complaint on the ground that the State had not exercised reasonable diligence in obtaining service as then required by Supreme Court Rule 4 (now Ill Rev Stats, c 110A, § 103(b) (1969)) which reads as follows:

“If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed with or without prejudice on the application of any defendant or on the court’s own motion.”

The motion was sustained and judgment entered for the defendant.

The State contends that the standard of reasonable diligence should not be applied to it when it is acting in its sovereign capacity to collect public revenue. Defendant argues that the State is bound by rules of procedure as is any other litigant and that lack of reasonable diligence in obtaining service of process is therefore a proper ground for dismissal even against the State.

Numerous cases have held that neither estoppel nor laches are bars to a State action where public revenue is involved. Department of Revenue v. Barding, 33 Ill 2d 235, 210 NE2d 475; Todd v. Annunzio, 410 Ill 343, 102 NE2d 297; Clare v. Bell, 378 Ill 128, 37 NE2d 812; People v. Illinois Women’s Athletic Club, 360 Ill 577, 196 NE 881; People ex rel. City of Chicago v. Commercial Union Fire Ins. Co., 322 Ill 326, 153 NE 488. It has been held that even the doctrine of estoppel by verdict does not apply where public revenue is involved. People v. Chas. Levy Circulating Co., 17 Ill2d 168, 161 NE2d 112. The rationale underlying these decisions was ably expressed in the early case of People v. Brown, 67 Ill 435. There the court said, p 438:

“Its [the State’s] rights, revenues and property would be at a fearful hazard, should this doctrine [of estoppel] be applicable to a State. A great and overshadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine.”

While decisions have acknowledged by way of dictum that cases may arise where justice would require application of the doctrine of estoppel against the State acting in its governmental capacity (State v. Illinois Central R. Co., 246 Ill 188, 92 NE 814; People by Barrett v. Bradford, 372 Ill 63, 22 NE2d 691) or against a municipality (City of Quincy v. Sturhahn, 18 Ill2d 604, 165 NE2d 271; County of Piatt v. Goodell, 97 Ill 84), the only case we find where the State was estopped from acting in its governmental capacity is Hickey v. Illinois Central R. Co., 35 Ill2d 427, 220 NE2d 415. In Hickey governmental bodies had disclaimed any interest in certain land for fifty years and had dealt with the land as if it belonged to the Illinois Central Railroad. As a result, the railroad had executed many leases, conveyances and other agreements involving the property. The court held that justice precluded the State from asserting a belated claim to the land.

The instant case is clearly distinguishable. At the time that defendant applied for the privilege of using the highways he was given notice that an additional tax might be due. There is no evidence that he was led by State officials into believing the State was abandoning its right to such taxes. In fact the State continued its efforts to collect from others who failed to pay the 1952 tax. People ex rel. Carpentier v. Central & Southern Truck Lines, Inc., 17 Ill2d 120, 160 NE2d 777; People ex rel. Carpentier v. Treloar Trucking Co., 13 Ill2d 596, 150 NE2d 624. The collection of taxes is basic to the very existence of the State and the doctrine of estoppel should be applied against the State only where the equities are strongly in favor of the party invoking the doctrine. The record in the case before us is devoid of facts upon which this court could base a finding that the equities strongly support defendant’s position. Indeed, while it is the duty of the State to collect taxes, it is likewise the duty of citizens to pay them.

Defendant contends that the State, as any other litigant, is bound by the procedural requirement of reasonable diligence. In People ex rel. Carpentier v. Windy City Motor Service, Inc., 22 Ill2d 209, 174 NE2d 839, which defendant cites in support of his contention, the issue was whether a suit for motor vehicle license fees and taxes was commenced within two years after the dissolution of the defendant corporation. After holding that the two year requirement applied only to commencement of the action and not to service of process, the court said, p 211:

“Nor is there any merit in defendant’s argument that plaintiff failed to show reasonable diligence. The suing out of four summonses between June 18, 1953 and June 20, 1955, is diligence enough, insofar as we can ascertain from the record in this case.”

It is apparent from the statement before set forth that the question of the applicability of the reasonable diligence standard to the State was not necessarily resolved by the court. That is, the court could concede through dictum the applicability of the rule and yet decide in favor of the State because the two year delay during which four summonses were issued would not have been sufficient to establish a lack of reasonable diligence even if private litigants had been involved. In the instant case, however, the State concedes that the delay in obtaining service shown by the record would properly bar the action if private litigants only were involved and the only issue is the propriety of applying the reasonable diligence rule to the State in an action for the collection of taxes.

The rule requiring a plaintiff to exercise reasonable diligence in obtaining service of process is intended to supplement the function of a statute of limitations. That is apparent from the 1969 amendment to Rule 103 (b). This provides that an action can be dismissed with prejudice only if the failure to exercise reasonable diligence occurs after expiration of the applicable statute of limitations. Ill Rev Stats, c 110A, § 103(b) (1969). Because an action is commenced by the filing of a complaint (Ill Rev Stats, c 110, § 13 (1969)), a plaintiff would, in the absence of such a rule, be able to avoid the function of a statute of limitations by commencing the action just before the statute has run and then failing to serve summons on the defendant. Kohlhaas v. Morse, 36 Ill App2d 158, 183 NE2d 16; C. Nichols, Illinois Civil Practice, § 209, at 162 (1961). Since there is no statute of limitations applicable to an action by the State for the collection of taxes however, the standard of reasonable diligence has no logical relationship to the instant case. Recognizing that the State is not barred by a statute of limitations, it can hardly be maintained that it is barred by a rule the avowed purpose of which is to prevent the circumvention of such a statute. The trial court erred in dismissing the State’s complaint.

The judgment is reversed and the cause remanded for such other and further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    Manuel S. Hoffman, as Custodian, etc., Plaintiff-Appellant, v. Central National Bank in Chicago, etc., et al., Defendants-Appellees.
    Gen. No. 54,126.
    First District, First Division.
    October 13, 1970.

      John D. Vosnos and James B. Martin, of Chicago, for appellant.
    Winston, Strawn, Smith & Patterson, of Chicago (Calvin Sawyier and Bruce L. Bower, of counsel), and James H. Torshen, Ltd., of Chicago (James H. Torshen, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The sole issue presented for review in this appeal is whether a Chancellor has the inherent equity power for the protection of a minor to require the posting of a bond for costs and damages in an amount fixed by the Court in the exercise of its discretion as a condition for allowing a minor’s representative to maintain an action of the type involved herein.

Manuel S. Hoffman, who under the Illinois Uniform Gift to Minors Act (Ill Rev Stats 1963, c 3, § 531 et seq.) is the custodian of stock in the Bank of Niles, owned by Steven David Hoffman, a minor, brought this action in 1964 on his own behalf and on behalf of all minority stockholders similarly situated against the Central National Bank in Chicago, the Bank of Niles, individual directors of the Bank of Niles, and the Selin Corporation, a corporate holder of stock in the Bank of Niles.

It appears from the complaint that the Bank of Niles has issued ten thousand shares of $25 par value stock and that Steven David Hoffman is an original holder of ten shares. The Complaint alleges that Central National made loans to one Herman Greisdorf which enabled him to acquire the controlling interest in the Bank of Niles and the real estate upon which the banking quarters are located; that there was an improper course of conduct between Central National and Greisdorf, who was not named as a defendant; that Bank of Niles deposited substantial sums in Central National without receiving interest; that Greisdorf permitted substantial, improper loans to be made; that the directors of the Bank of Niles breached fiduciary and other obligations by permitting themselves to be dominated and controlled by Greisdorf; that the directors of the Bank of Niles rubber stamped Greisdorf’s acts because they and Greisdorf were involved in many deals and transactions outside the operation of the Bank; that Central National conspired with H. M. Cavanaugh, acting through the Selin Corporation, to take control of the Bank of Niles; that Central National called its loans to Greisdorf and reduced its collateral to ownership; that Central National granted preferential treatment to Cavanaugh, who was a substantial shareholder of Central National, to enable him to obtain control of the Bank of Niles; and that Cavanaugh and the directors of the Bank of Niles held a fiduciary relationship to the Bank and all its minority shareholders which was breached. Most of the allegations in the Complaint are on “information and belief.”

The Complaint seeks an injunction, the declaration of a constructive or resulting trust, the setting aside of an approved bank reorganization, punitive damages in the amount of $1,000,000, the removal of officers and directors, and other appropriate relief.

Selin, the Bank of Niles, and the other defendants moved to strike and dismiss the Complaint on the ground that Manuel S. Hoffman was without authority to institute the action as custodian because section 4 of the Illinois Uniform Gift to Minors Act (Ill Rev Stats 1963, c 3, § 534), which sets forth the duties and powers of a custodian, does not authorize a custodian to institute judicial proceedings and on the ground that the plaintiff was seeking improper relief since under section 150 of the Illinois Banking Act (Ill Rev Stats 1965, c 16½, § 150) the Director of Financial Institutions through the Attorney General is the only person authorized to file a Complaint seeking to have a bank placed under court supervision.

Central National answered the Complaint, alleging inter alia that the plaintiff has made scandalous allegations which are utterly untrue and without foundation in fact or reasonable belief; that it will incur substantial costs, expenses and attorney’s fees which should be paid by the plaintiff; that the plaintiff should be required to post a bond in an amount sufficient to pay the same; and that exemplary or punitive damages should be assessed against the plaintiff.

The record reveals that the plaintiff moved to amend the Complaint on March 2, 1965, to include as a plaintiff, Steven David Hoffman, a minor, acting through his natural guardian and next friend, Manuel S. Hoffman. On the same day, the plaintiff moved for an order directing the Bank of Niles to produce its corporate minute book, certain disbursement records, payroll records, certain loan files, leases for the building occupied by the bank, audit reports, etc. The defendants opposed both of the plaintiff’s motions and moved to stay all discovery. Numerous grounds were advanced in support of the defendants’ objections and motion. First, they argued that for the protection of the minor, the plaintiff, as next friend of the minor, should be required to post a bond for costs in accordance with section 141 of the Probate Act (Ill Rev Stats 1965, c 3, § 141) which prescribes the manner in which a minor may appear in a judicial proceeding. Second, they asserted that the court should stay all proceedings until it has ruled on the motions to dismiss and determined the sufficiency of the Complaint. Third, they alleged that the “so-called representative action on behalf of a minor against two banks and certain individuals is a spurious suit, brought to embarrass the involved Banks and to prevent a proper reorganization of the Bank of Niles and to embarrass those individuals who have sought to extricate the Bank from its difficulties.” Fourth, they alleged that the plaintiff was not bringing a true representative action and noted that no other stockholder of the Bank of Niles had joined the suit. Finally, they asserted that the production of the documents requested in the plaintiff’s motion to produce documents would be unreasonable, oppressive, and burdensome because the plaintiff seeks the production of over 50,000 documents which are contained in over 750 files and because the production of the documents would disrupt the operation of the bank and would result in great expense to it.

On March 25, 1965, the Court ordered (1) that the plaintiff be granted leave to amend the Complaint to include as a plaintiff, Steven David Hoffman, by his natural guardian and next friend, Manuel S. Hoffman; (2) that Manuel S. Hoffman, as next friend, post a bond for costs in the amount of $100,000 pursuant to section 141 of the Probate Act; and (3) that all discovery be stayed until the posting and approval of the bond.

On April 15, 1965, Manuel S. Hoffman opened an estate in the Probate division for the minor and obtained permission from that court to represent the minor in this litigation as the minor’s duly appointed guardian. On April 21, 1965, Manuel S. Hoffman moved before the Chancellor for permission to appear and represent Steven David Hoffman as guardian of the estate and person of the minor and moved further that the order requiring the posting of a bond for costs be vacated, because, he contended, the guardian by reason of the issuance of the letters of guardianship was entitled as a matter of right to represent the minor without the filing of a bond for costs.

On October 29, 1965, the defendants obtained an order in the Probate division which provided that its previous order which authorized Manuel S. Hoffman to represent the interest of his ward, was without prejudice to the right of the Chancellor to set bond for the guardian. On May 10, 1966, the Court ordered that Manuel S. Hoffman, as guardian of the Estate and person of Steven David Hoffman, be substituted as plaintiff in lieu of Manuel S. Hoffman as natural guardian and next friend of Steven David Hoffman and further ordered that Manuel S. Hoffman, as guardian, post a bond in the amount of $100,000. The plaintiff then filed a motion in the Supreme Court for leave to file a petition in original mandamus to compel the Circuit Court to vacate its order setting the bond for costs. The motion was denied. On December 6,1968, the plaintiff, as guardian, again moved before the Chancellor to vacate the order requiring bond. On affidavit, plaintiff’s guardian stated that the estate of the minor was insufficient to permit such a bond to be posted. The motion was denied and the action was dismissed on April 9,1969. This appeal followed.

The Court is under a duty to protect the interests of a minor when the interests of the minor are or may be affected in a judicial proceeding, and the Court has broad equitable powers to ensure that the minor’s interests are protected. Tymony v. Tymony, 331 Ill 420, 163 NE 393; Gibbs v. Andrews, 299 Ill 510, 132 NE 544.

The power to protect the interests of a minor is explicitly preserved in Illinois by statute. Section 141 of the Probate Act provides:

The guardian of the estate of a minor shall appear for and represent his ward in all legal proceedings unless another person is appointed for that purpose as guardian or next friend. This does not impair the power of any court to appoint a guardian to defend the interests of the minor in that court, or to appoint or allow any person as the next friend of a minor to commence, prosecute or defend any suit in his behalf. Any suit or proceeding may be commenced and prosecuted by his next friend, without any previous authority or appointment by the court if the next friend enters bond for costs and files it in the court where the suit or proceeding is pending. (Ill Rev Stats 1965, c 3, § 141.)

The Circuit Court invoked section 141 of the Probate Act to protect the interest of the minor when on March 25, 1965, it simultaneously ordered that leave be granted to amend the Complaint to include as a plaintiff Steven David Hoffman by his natural guardian and next friend, Manuel S. Hoffman, and ordered that Manuel S. Hoffman, as next friend, post a bond for costs in the amount of $100,000.

The plaintiff vigorously argues that a guardian of the estate of a minor may not be required to give security for possible costs. It is his contention that costs, damages, attorney’s fees, and expenses were not taxable at common law and that a court has no power to tax costs, damages, attorney’s fees, and expenses or to require the posting of security for possible costs, damages, attorney’s fees and expenses in the absence of an enabling statute.

We hold that plaintiff’s belated appointment as guardian of the estate and person of Steven David Hoffman cannot relieve him of the obligation to post a bond for costs. In the event of an unsuccessful suit, a ward, like any unsuccessful litigant, faces liability for costs. Ill Rev Stats 1969, c 33, § 8. The statute makes no exceptions in favor of minors as unsuccessful plaintiffs in the matter of cost.

The allegations of the complaint demonstrate that the minor has a relatively small interest in the Bank of Niles; the minor owns only ten out of the approximately 10,000 shares of stock in the Bank issued and outstanding. The suit was brought as a class action, but we note that while the matter was pending in the Circuit Court for approximately five years, no other stockholder of the Bank has joined the plaintiff in this action.

The Complaint, on its face, demonstrates that this lawsuit will be long and expensive. The Complaint raises a multiplicity of issues, causes of action and theories of action, and the plaintiff has requested a vast amount of discovery. We have carefully examined the allegations of the Complaint, and we believe it is of the character that may cause the minor to incur costs under section 41 of the Civil Practice Act, which provides:

Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with the reasonable 'attorney’s fees, to be summarily taxed by the court at the trial. (Ill Rev Stats 1969, c 110, § 41.)

Moreover, the right to bring this action is based on the minor’s ownership of the Bank stock. These shares are custodial property held by Manuel S. Hoffman on behalf of Steven David Hoffman pursuant to the Illinois Uniform Gift to Minors Act. These shares are specifically exempted from the guardianship by both the provisions of that Act and of the Probate Act.

The Illinois Uniform Gift to Minors Act provides:

A gift made in a manner prescribed in this Act is irrevocable and conveys to the minor indefeasibly legal title to the security or money . . . but no guardian of the minor has any right, power, duty or authority with respect to the custodial property except as provided in this Act. (Ill Rev Stats 1963, c 3, § 533(a).)

Similarly “custodial property” of a minor is specifically excluded by the Probate Act from the control of the guardian by the Probate Court. Section 2 of the Probate Act as amended in 1961, provides:

“§ 2. Definitions.

“When used in this Act, unless the context requires otherwise:

“(i) words referring to the property or estate of a person under the age of 21 shall be construed to exclude ‘custodial property’ as the same is defined in the Illinois Uniform Gifts to Minors Act.” (Ill Rev Stats 1963, c 3, § 2.)

With regard to the powers of a custodian under the Illinois Uniform Gift to Minors Act as distinguished from the powers of a guardian, James Illinois Probate Law and Practice, comments as follows in sections 370.2 and 372:

The Custodian is not a “guardian” although the fact that he deals with the property of a minor suggests this. Unlike a guardian who is subject to the supervision of the Probate Court, a custodian is not subject to the supervision of any court and his powers and authorities are much broader than those of a guardian (§ 370.2).

“It will be noted that the guardian of the minor is excluded from any right, power, duty or authority with respect to custodial property.” (§ 372.) We note, too, that the Probate Court entered a subsequent order which recites that the appointment of Manuel S. Hoffman as guardian was entered without prejudice to the right of the Chancellor to set a bond for the guardian.

Plaintiff principally relies on Patterson v. Northern Trust Co., 286 Ill 564, 122 NE 55. In that case Patterson was the owner of a life estate in a one-twelfth interest in a loop property improved with a twelve-story building. There the Complaint was dismissed on the ground that the suit was frivolous, vexatious and in violation of an injunction. The dismissal of the Complaint was affirmed. The trial court, however, denied the trustees’ motions to fix and allow solicitor fees and to tax the same as costs. This order was also affirmed. The Supreme Court held that if solicitor fees should be included in the costs in any class of cases, the representation to that effect should be made to the General Assembly and not to the court.

The Patterson case is clearly distinguishable from the case at bar on the facts involved. The issue presented in Patterson was the power of the court to tax attorney’s fees as costs whereas here the issue is the power of the court to require a security bond for costs which would be taxable in accordance with statute.

The plaintiff is not contesting the reasonableness of the Circuit Court’s exercise of discretion in setting the bond for costs at $100,000. Plaintiff’s attorney, in response to a question in oral argument, stated that the plaintiff was unable to post a bond in any amount and that he was contesting only the right of the Circuit Court to order the plaintiff to post any bond for possible costs.

It was apparent to the trial court, as well as it is to us, that ordinary costs alone can amount to many thousands of dollars in the case at bar should it proceed to trial. The infusion of allegations which may prove to be untrue “made without reasonable cause and not in good faith” can multiply taxable costs pursuant to section 41 of the Civil Practice Act. In view of such reasonably foreseeable costs, we cannot say that the Chancellor abused his discretion in ordering the plaintiff to post a bond and when the plaintiff failed to post the bond, in dismissing the Complaint.

The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.

MURPHY and ADESKO, JJ., concur.


author: JUSTICE MURPHY.

text:
    People of the State of Illinois, Appellee, v. William Earnest Hope, Appellant.
    Gen. No. 54,174.
    First District, First Division.
    October 13, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


text:
    E. H. Chicoine Contractors, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Investors Realty & Management Corporation, a Corporation, and The Chelsea House, a Limited Partnership, Defendants-Appellants.
    Gen. No. 54,193.
    First District, First Division.
    October 13, 1970.
    Spangler & Greenberg, of Chicago (Erwin H. Green-berg, of counsel), for appellants.
    Selwyn Coleman, of Roselle, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendants appeal from the judgment order of the Circuit Court of Cook County, which found in favor of the plaintiff for $5,671.30, due under a contract between the parties, taking into consideration certain claims for setoffs on behalf of the defendants. The only question to be determined on appeal is whether the judgment order is contrary to the manifest weight of the evidence.

Plaintiff corporation is engaged in the business of tuck-pointing and general masonry repairing. The defendant, Investors Realty and Management Corporation, is the managing agent of a ten-story apartment building owned by defendant, The Chelsea House, a limited partnership. On August 4, 1966, the plaintiff and the defendant, Investors, as agent, entered into a written contract for masonry repairs to the building. Plaintiff commenced work approximately a week or ten days after the contract was signed and worked on the building until the following July. The main issue in the case is the defendants’ allegation that the job was not performed in a workmanlike manner.

Defendants’ primary contention of defective workmanship relates to paragraph III, subsection C-l of the contract :

“C. With special reference to the patching which may be required in the concrete spandrels and/or concrete columns:
“1. Areas larger than 10 square inches shall be reinforced with 2" galvanized wire mesh anchored to a minimum depth of 1" to 1%" with hook anchors. In the case of patches of less than 10 square inches, the cement mix as alluded to above, shall be used.”

Defendants’ primary evidence of plaintiff’s violation of this provision is the testimony of one of plaintiff’s witnesses that no wire mesh was used in patches with a depth of less than one inch to one and one-half inches. Plaintiff’s witness also testified that he purchased fifteen sheets of wire mesh and used an additional four or five sheets from his own stock in repairing patches of more than ten square inches. Defendants offered no evidence to show how many patches of an area larger than ten square inches were of a depth of less than one to one and one-half inches.

In other aspects of the same evidentiary issue, defendants’ sole witness, who commenced working for Investors as a supervisor after the patchwork had been substantially completed, introduced pictures showing a few defective patches on the wall of the building. The wall, however, had been subsequently damaged by the wrecking of a building adjacent to The Chelsea House, which was in no way connected with plaintiff’s masonry repairs. Defendants’ sole witness also testified that he chiseled out a number of patches to a depth of three-quarters of an inch, and found no wire mesh. There was, however, direct testimony that the mesh would be located at least one inch below the surface.

The trial court found that the defendants offered only slight evidence tending to show defects in the patchwork; that according to plaintiff’s testimony only 25 out of approximately 125 to 200 patches were ten inches square or larger; that the patchwork constituted only ten percent of the job for which plaintiff contracted; and that the defendants simply did not meet their burden of proof.

Defendants had the burden of showing by the record that the judgment was manifestly against the weight of the evidence. Croft v. Lamkin, 112 Ill App2d 321, 251 NE2d 88 (1969). We find that the defendants did not meet that burden here and that there is sufficient evidence to support the judgment order. Guthrie v. VanHyfte, 36 Ill2d 252, 222 NE2d 492 (1967). We find no merit in the defendants’ argument that the alleged diminution of the guarantee is a defense for failure to pay the plaintiff, nor in their argument that plaintiff was subject to some higher standard of workmanship.

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

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Appellee, v. Donald Hansen, Appellant.
    Gen. No. 54,195.
    First District, First Division.
    October 13, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. David S. Pruitt and Walter L. Smith, Defendants-Appellants.
    Gen. Nos. 54,206, 54,207.
    First District, First Division.
    September 21, 1970.

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

delivered the opinion of the court.

The defendants, David S. Pruitt and Walter L. Smith, were jointly indicted for the offense of robbery and in a trial without a jury were found guilty as charged. Defendant Smith was sentenced to the penitentiary for a term of not less than one nor more than three years. Defendant Pruitt, after a hearing in aggravation and mitigation, was sentenced to the penitentiary for a term of not less than three nor more than eight years. They now bring this appeal.

The defendants contend that (1) they were not proven guilty beyond a reasonable doubt and (2) it was reversible error for the prosecutor and the trial judge to shift the burden of proof to the defendant Smith and require him to present proof of his innocence.

The record reveals that Albert Caldwell entered a restroom in Washington Square Park at about 4:30 p. m. on September 15, 1968. He testified that the defendants, Smith and Pruitt, then entered the restroom and assaulted him with their fists. He had never seen them before, but observed them to be Negro men of about twenty-five years of age, wearing tee shirts and work clothes. He said that Pruitt took his wallet, which contained personal effects, a driver’s license and four dollars, from his rear left-hand pocket. Caldwell followed the defendants out of the washroom and observed them take the contents out of his wallet and then throw it to the ground, where he recovered it while they walked away. He then signalled to a police car, and the officer apprehended the defendants. He heard Smith scream, “I won’t go back to jail. You’ll have to shoot me.”

Officer Dennis Kotsos testified that as he was proceeding north on Dearborn alone in a marked squad car, he observed Caldwell holding his head and pointing to the two defendants. He saw the defendants going through a black object. When they saw him they dropped the object and started walking hurriedly away. He apprehended them and found nothing on them. Caldwell told them that the two men had robbed him. Pruitt, when apprehended, told him that he had just been robbed himself. Officer Kotsos said that he was having trouble with the defendants and had to draw his weapon and radio for help. While he was on the radio he saw Mrs. Smith take Smith’s wallet and some loose dollar bills from the back of the squad car and then leave the scene. Smith told him that he was not going back to jail. At the police station Caldwell showed him his wallet. Officer Kotsos described it as being a black checkerboard wallet with ribbing. The wallet placed in evidence was dark brown with no checkers or ribbing.

Walter Lee Smith was the only witness for the defense. He testified that he was in Washington Square Park four blocks from his home with his wife when Pruitt, whom he had never seen before, approached them and told them he had just been robbed. Smith said that he saw Officer Kotsos, motioned to him and then told him about Pruitt being robbed. Caldwell then joined them and told Kotsos that Smith and Pruitt had robbed him. Smith testified that he did not strike Caldwell or take his wallet. He denied that his wife took a wallet off the police car. Smith said that he told Kotsos, “Officer, the way I feel right now, you’ll have to kill me, because this is a brother. And if you want to mess us up with a robbery that none of us have any knowledge about, I feel you’re wrong.”

It is first contended that the doubtful and uncorroborated testimony of the complainant was insufficient to sustain the convictions. In furtherance of this argument, the defendants stress that they were apprehended only moments after the alleged robbery, but were not in possession of any property taken from Caldwell. There were also conflicting statements by the police officer concerning the description of Caldwell’s wallet. It is urged that the conduct of the complainant was inconsistent with that of a man who has just been robbed and that although Caldwell testified that he had been beaten, Officer Kotsos found no marks or bruises on him. The defendants contend that if either of them had participated in the robbery it would have been unreasonable for them to have initially complained to Kotsos of the Pruitt robbery. These factors, the defendants say, create a reasonable doubt of their guilt and warrant a reversal.

The defendants rely on People v. Kincy, 72 Ill App2d 419, 219 NE2d 662; People v. Fiorita, 339 Ill 78, 170 NE 690 and People v. Kidd, 410 Ill 271, 102 NE2d 141. In Kincy the identification was doubtful and the other proof of guilt was very weak. In Fiorita the identification was vague and uncertain, and defendant had a strong alibi. In Kidd the identification was improbable and inconsistent and defendant had a credible alibi.

In the case at bar, the complaining witness had a good opportunity to view the defendants during the robbery and then followed them out of the restroom. He and Officer Kotsos saw them go through his wallet and then drop it. While Officer Kotsos apprehended the defendants, Caldwell recovered his wallet. The recovery of the wallet which Kotsos had seen them drop, within the vicinity of the defendants’ arrest was substantial corroboration of Caldwell’s identification of the defendants as the perpetrators of the crime. People v. Palmer, 120 Ill App2d 471, 477, 257 NE2d 172, 175.

This was a bench trial and it was for the judge to weigh the testimony of the witnesses and to determine their credibility. He found the testimony of Caldwell and Kotsos to be clear and convincing and that of Smith to be improbable. We have not been convinced that the proof was insufficient to establish the defendants’ guilt beyond a reasonable doubt, and we will, therefore, not disturb the judgment of the trial judge.

It is next contended that the prosecutor and the trial judge committed reversible error by shifting the burden of proof to the defendant Smith and requiring him to present proof of his innocence. This argument is premised on the cross-examination of Smith by the prosecutor and questions put to Smith and other comments made by the trial judge.

On direct examination, Smith testified that he was walking in the park with his wife, when Pruitt told him he had been robbed. On cross-examination, Smith said that his wife was in court that morning and that there were other friends of his with him in the park, until the time of his arrest. He mentioned Johnnie, Jimmy Dale and his wife and two children. He did not know Johnnie’s last name. He said they were with him when Pruitt said he had been robbed.

The Court then inquired:

The Court: “Were they all there when the defendant Pruitt came up with Mr. Smith and said he had been robbed? Is that what you asked him.”
Mr. Rimland (prosecutor): “Yes.”
The Witness: “Yes.”
The Court: “They were all there ?”
The Witness: “Yes, they were all there.”
Mr. Rimland: Q. “Is Johnnie here in court today?” A. “No, he isn’t.”
Q. “What about Jimmie Dale and his wife Susie?”
A. “No.”
Q. “Do you know where they are ?”
A. “Yes, I know where they are.”
Q. “Where are they now?”
A. “They’re living in — they’re living at approximately Goethe and Wells.”

We fail to see how this inquiry remotely shifted the burden to the defendant to prove his innocence. The State may test the defendant’s credibility by questioning him on who was with him. This case is distinguishable from People v. Smith, 74 Ill App2d 458, 221 NE2d 68, where the prosecutor made highly prejudicial comments to the jury on the defendant’s failure to call witnesses who were also available to the State The instant case was a bench trial in which no such comments were made and in which it does not appear that Smith’s friends were readily available to the State as witnesses.

The trial judge in finding the defendants guilty concluded that the testimony of the defendant Smith was improbable and that he could not accept that story. He also commented that although Smith said he knew where friends were who could substantiate his story he did not call them. We do not agree with the defendants that this shows that the prosecutor persuaded the trial judge that the defendants had to produce evidence of their innocence. This is not a case like People v. Weinstein, 35 Ill2d 467, 220 NE2d 432, where the prosecutor in final argument of a jury trial repeatedly asserted that to be found not guilty the defendant had the burden of introducing evidence creating a reasonable doubt of his guilt. This case is more like People v. Kennedy, 98 Ill App2d 304, 240 NE2d 721, in which the Appellate Court held that where the accused undertakes to prove that at the time of the charged offense he was at another place with a number of people, his failure to produce such witnesses is a proper subject for comment by the prosecutor in closing argument. The testimony for the prosecution was strong and convincing. The defendant Smith chose to testify in his own defense and told a story which the trial judge found to be bizarre. We find no error in the questions or comments of the prosecutor or of the trial judge.

The judgment of the Circuit Court is, therefore, affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James William Moore, Defendant-Appellant.
    Gen. No. 54,274.
    First District, First Division.
    September 21, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Robert A. Novelle, Joseph Romano, and Zenon Forowycz, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, James William Moore, was indicted for the offense of theft in that he knowingly obtained and exerted unauthorized control over an automobile of a value in excess of $150, in violation of Ill Rev Stats 1967, c 38, §16-1(a)(1) and of criminal trespass to a vehicle in violation of Ill Rev Stats 1967, c 38, § 21-2. On motion of the State, the two counts were consolidated for the trial. The defendant was tried by the court without a jury and was found guilty. He was sentenced to a term of not less than five years nor more than ten years in the Illinois State Penitentiary.

The defendant contends that he was not proven guilty beyond a reasonable doubt and that the sentence imposed was too severe.

Sigfrido Noa testified that he was the owner of a 1968 Oldsmobile, for which he paid $5,500. At 2:00 p. m. on December 25, 1968, he parked his car in front of a house at 4451 North Hazel. When he came out of the house, his car was gone. The next time he saw it was two days later at a police station. He did not know the defendant, James William Moore, and did not give him permission to drive the car.

Robert Olson, a police officer, testified that he stopped the defendant on December 27, 1968, for a traffic violation. After a check of the license number with the radio dispatcher, he learned that the defendant was driving a stolen car belonging to Noa. Officer Olson said that he took the defendant to the police station, advised him of his constitutional rights and then asked him certain questions. In response to the question of where he got the car, the defendant stated that he was walking in the 900 block of Leland Avenue when he saw the car with the motor running. Since he needed transportation to get to work, he decided to take the car.

The defendant testified in his own behalf. He said he lived at 915 West Wilson. About five minutes before his arrest, he had been given permission to use the car by a Harold Thompson, who he believed owned the car. He had known Thompson about two weeks and thought he lived at 914 or 916 Leland Avenue. Earlier that day, accompanied by Thompson, the defendant said he drove the car to the Illinois State License Bureau where he took a driver’s test and received a temporary operator’s permit. Thompson then rented him the car for the rest of the afternoon for $10, just prior to his arrest. He said he did not know that the car was stolen before he was informed of that fact by Officer Olson. On cross-examination, the defendant admitted that he had told the police that he had seen the car in the 900 block of Leland and taken it to get to work. He did not tell the police about Harold Thompson and had not seen Thompson or written to him since his arrest.

The defendant contends that the evidence implicating him in the crime is circumstantial and insufficient to remove all reasonable doubt of his guilt. He relies on People v. Magnafichi, 9 Ill2d 169, 137 NE2d 256. In that case, none of the four eyewitnesses could identify the defendant as one of the three men who had robbed their club. The owner of a hardware store across the street from the club testified that he saw three men having trouble with a car about the time of the offense and that the defendant looked like one of the three men. The testimony of the hardware store owner was the only circumstantial evidence linking the defendant with the crime, and the court held that his testimony was neither strong by itself nor consistent with the other facts of record and reversed the conviction. The Court went on to say:

To justify a conviction circumstantial evidence must be of such a nature as to produce a reasonable and moral certainty that the accused committed the crime. Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a serious and grave doubt of guilt, a conviction cannot stand.

We consider this case inapplicable on the facts.

As we stated in People v. Jones, 112 Ill App2d 464, 467, 251 NE2d 293, 296, it is well settled that the recent, exclusive and unexplained possession of a stolen automobile by an accused gives rise to an inference of guilt, absent other facts and circumstances which may leave a reasonable doubt. In Jones the defendant was arrested while driving a car which had been stolen five days previously. A witness testified that the defendant was working for her in her lounge on the day of his arrest. She said she borrowed a customer’s car which the defendant drove to a wholesale liquor store to purchase some beer. We held that the testimony of this witness was so improbable as to induce the trial court to disregard her evidence “even in the absence of any conflicting evidence.” We noted that this witness made no attempt to aid the defendant when she learned of his arrest nor did she tell the police how the defendant got the car. The trial court in Jones did not believe the testimony of the proprietress, and we were not persuaded to substitute a different judgment of her credibility.

We likewise find no persuasive argument to reverse the trial judge in the case at bar. The record clearly establishes that the defendant was driving a stolen car. As stated in People v. Smith, 107 Ill App2d 267, 270, 246 NE2d 880, 881, “It is also the rule that where a defendant found in exclusive possession of stolen property (an automobile) attempts to explain it, he must tell a reasonable story or be judged by its improbabilities. (Citing cases.)” The defendant, in the case at bar, admittedly told the police upon his apprehension that he had taken the car in order to get to work. At the trial he said that a Harold Thompson had rented the car to him shortly before his arrest. If this story were true, we cannot believe that the defendant would at the time of his arrest admit his guilt to the police officer, as he did, and not ask the officer to look a block or two for Thompson who had allegedly just given him the car. While in jail, the defendant did not try to contact Thompson. Given these facts, we see no reason to reverse the decision of the trial judge.

The defendant contends, in the alternative, that the sentence of five to ten years is too severe and should be reduced. Before sentencing, a hearing in aggravation and mitigation was held. The defendant’s criminal record reveals that in July, 1961, he was sentenced to thirty days in the House of Correction on a charge of larceny of an automobile. On September 29, 1961, he was sentenced to six months in the House of Correction on a charge of tampering. On February 7, 1963, he was sentenced to one year in Vandalia. On January 22, 1964, he was sentenced to one year in the House of Correction on a charge of criminal trespass. On May 24, 1965, he was again sentenced to one year in the House of Correction. On May 18, 1966, for a conviction of robbery, he was sentenced to the Illinois State Penitentiary for a term of not less than three nor more than ten years. At the time he stole the car in question, he was on parole for the latter conviction and was twenty-five years old.

The defendant urges that the trial court erred in sentencing him severely on the basis of his record and not for the crime in question. The trial judge commented after the hearing on aggravation and mitigation:

Let the parole board worry about him. I am going to follow the State’s recommendation. I have never seen a record like this with a boy his age. The sentence is 5 to 10 years. He certainly has not been rehabilitated. It doesn’t look like he is about to be rehabilitated. Let the parole board see what they can do with him.

In People v. Taylor, 33 Ill2d 417, 211 NE2d 673, the defendant also contended that the trial judge improperly considered the parole laws in determining the length of imprisonment. There too, the trial court found the defendant beyond rehabilitation. In Taylor, the Supreme Court reminded us that a court of review should not disturb a sentence if it is within the limits prescribed by the legislature unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit or is manifestly in excess of section 11 of Article 11 of the Illinois Constitution which requires that all penalties shall be proportioned to the nature of the offense. The court, in holding that the sentence of 45 years for the rape conviction did not violate the above principles, stated:

We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill Rev Stats 1963, chap 38, par 121-9(b)(4)) such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals. 33 Ill2d at 424, 211 NE2d at 677.

In view of the offense for which the defendant was convicted in the case at bar, and in view of his criminal record, a minimum sentence of five years is within the limits of punishment set by law and the discretion of the trial judge. People v. Smith, 14 Ill2d 95, 150 NE2d 815.

Accordingly, the judgment of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Appellee, v. Leroy Broadnax, Appellant.
    Gen. No. 54,298.
    First District, Second Division.
    October 13, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.