text:
    People of the State of Illinois, Plaintiff-Appellee, v. George H. Miller, Defendant-Appellant.
    Gen. No. 52,906.
    First District, Second Division.
    October 22, 1968.
    Myron B. Goldstin, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

George H. Miller was convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor and fined $100 and $5 costs. As a result, his driver’s license was revoked for one year in accordance with statutory provisions. He appeals.

The sole evidence presented by the People was the testimony of arresting Officer Max Steel. He testified that on the evening of March 11, 1967, he was in a squad car driving north along on Kimball Avenue when he approached the intersection of that street with Armitage Avenue in Chicago. As he did so he noticed the automobile being driven by George Miller, which was stopped in the right-hand traffic lane waiting for the stop light to change. The officer also observed that there was another automobile stopped for the light directly to the left of that occupied by Miller. When the light changed to green Miller immediately accelerated his automobile and while still in the intersection swerved over to the left cutting off the automobile which was proceeding north to the left of and slightly behind the Miller car. Since this action constituted a traffic violation, Officer Steel pursued Miller’s car and brought it to a halt one and one-half to two blocks north of the intersection.

Officer Steel alighted and went to Miller’s automobile but as he began to engage the defendant in conversation he noted the odor of alcohol on the defendant’s breath. He asked the defendant to get out of his car and noticed that he swayed as he did so and that he stood leaning against or holding onto the car. The witness stated that defendant’s eyes were bloodshot, that his face was flushed and that he spoke in a manner described as “mush mouthed.” The witness testified defendant swayed as he walked and turned and had difficulty in maintaining his balance. On the basis of his experience of 12 years as a police officer, the witness concluded that the defendant was under the influence of alcohol and unfit to drive his automobile. He, therefore, transported the defendant to a district police station where the defendant refused to answer questions or take any tests without the assistance of counsel. Officer Steel testified on cross-examination that he did not know why defendant held onto or leaned against his car during their conversation at the scene and that at no time did the defendant require any assistance or support. He further stated that defendant never tripped, slipped, staggered, stumbled or fell, and that he walked up the stairs at the police station in a proper manner.

The defendant testified that he arrived at work on the day in question at approximately 10:30 or 11:00 a. m. and worked until approximately 4:45 p. m.; that he went to lunch about 3:00 p. m. and with his lunch consumed two bottles of beer; and that he had nothing else to drink on this day. He further testified that he usually has a drink with his lunch. He stated that upon leaving work he went to a friend’s house to leave a package. He stayed at his friend’s house for half an hour and was proceeding on his way when he was arrested. He testified that the alcohol had mo “effect” on him, and that on this day he was walking and talking in his normal manner. He testified that he had no physical defects that would cause him to sway when he walked.

Following the finding of guilty (on a motion for a new trial) the court heard the testimony of two defense witnesses, Phillip F. George and Raymond Wilson. Mr. George testified he had worked with the defendant from 11:00 a. m. to approximately 5:00 p. m.; that they had lunch together during which each consumed two bottles of beer. It was Mr. George’s opinion that the defendant was not under the influence of alcohol on the day in question. Mr. Raymond Wilson testified that the defendant delivered a package to his home about 5:30 p. m. and remained about 15 minutes. The witness stated that he had occasion to talk to the defendant and that defendant did not sway when he walked. In the witness’ opinion the defendant was not under the influence of alcohol.

The defendant, in arguing that the People did not prove him guilty beyond a reasonable doubt says that he was arrested for a minor traffic violation; that there was no testimony of erratic driving; that there had been no accident; that there were no unusual actions on his part; that he cooperated with the police and that he availed himself of his constitutional right to refuse to answer any questions or to take any tests. He further states that he gave account of his whereabouts during the hours preceding his arrest, including when, where and how much alcohol he had consumed and that he had done everything that a normal, rational person would have done in a similar situation. Defendant also calls attention to the testimony of two witnesses introduced on the hearing of his motion for a new trial and urges that they substantiate his testimony that he was not under the influence of intoxicating liquor while driving his car on that date. Defendant cites People v. Mundorf, 85 Ill App 2d 244, 229 NE2d 313, for the proposition that while the trial judge is the sole judge of credibility of witnesses, if the evidence is so unsatisfactory as to raise a reasonable doubt of guilt, the Appellate Court will reverse.

In our opinion the evidence of Officer Steel was sufficient to support the conviction. The question presented to the trial judge was one of credibility of the witnesses. The determination of the trial court will not be lightly disturbed by a court of review. Whether the evidence is sufficient to show that the defendant was driving a motor vehicle while under the influence of intoxicating liquor is for the determination of the trier of fact who has the advantage of seeing and hearing the witnesses and observing their demeanor while on the witness stand. People v. Buzinski, 64 Ill App2d 194, 212 NE2d 270; People v. Raddle, 39 Ill App2d 265, 188 NE2d 101; People v. Krueger, 99 Ill App2d 431, 241 NE2d 707.

The testimony of the police officer that he observed the defendant’s eyes to be bloodshot, his color flushed, his speech slurred, his walk unbalanced, when coupled with the officer’s opinion that the defendant was under the influence of intoxicants at the time, supports the conviction. There is nothing about the testimony of the officer which would warrant the court in substituting its judgment for that of the trial judge. Officer Steel stopped the defendant for a routine traffic violation, noticed the odor of alcohol on defendant’s breath, then went further in his investigation, which revealed that the defendant’s speech was “mush mouthed,” that his eyes were bloodshot, that his face was flushed and that he swayed when he walked or attempted to turn.

The introduction of the additional testimony was permitted by the trial court over the objection of the State’s Attorney. There was no showing that these two witnesses could not have been produced at the trial. The trial judge decided to hear the testimony of the two witnesses and after listening to this testimony, the trial judge denied the motion for a new trial. The evidence presented by defendant was not newly discovered since the persons who gave it and what they would say was known to him before the trial began. Nevertheless the trial judge gave the defendant the benefit of the testimony of the two witnesses. It cannot be said that in doing this he committed error.

We find that there is sufficient evidence in the record to establish the guilt of the defendant beyond a reasonable doubt; therefore, the judgment is affirmed.

Judgment affirmed.

McNAMARA and LYONS, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    John V. Morse and Dolores Morse, His Wife, Plaintiffs-Appellees, v. Michaelson, Rabig & Ramp, a Partnership, Le Roy Priore, Administrator of the Estate of Christian S. Michaelson, Deceased, Mildred Rader, Executor of the Estate of Karl K. Rabig, Deceased, and Albert H. Ramp, Defendants-Appellants.
    Gen. No. 52,070.
    First District, Fourth Division.
    October 23, 1968.

      Tom L. Yates, of Chicago (Frederic L. Goff and Carl E. Abrahamson, of counsel), for appellants.
    William D. Maddux, John M. O’Connor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants’ appeal from a judgment entered on a verdict assessing damages in the sum of $14,000 in favor of the plaintiffs and against defendants arising out of the claim of the plaintiffs that defendants were negligent in the services rendered by them as architects in connection with the construction of a basement recreation room on plaintiffs’ premises.

Defendants contend principally that the court erred in (1) ruling on the admissibility of evidence, (2) refusing defendants’ motions for mistrial, directed verdict and judgment notwithstanding the verdict and (3) striking from defendants’ answer the affirmative defense of the Statute of Limitations.

The original complaint was filed October 26, 1959, naming as one of the defendants Michaelson, Rabig & Ramp, a partnership; an amended complaint was filed on May 24, 1960. After the suggestion on February 15, 1965, of the death of C. S. Michaelson and the dissolution of the partnership, a second amended complaint was filed on September 17, 1965, naming Karl Rabig and Albert Ramp as additional defendants and summons were ordered issued against them; on November 10, 1965, a third amended complaint was filed naming the partnership, Le Roy Priore, Administrator of the Estate of Christian S. Michaelson, Mildred Rader, Executor of the Estate of Karl K. Rabig, and Albert H. Ramp who was the sole surviving partner; on June 31, 1966, a fourth amended complaint was filed.

The fourth amended complaint alleged substantially that plaintiffs were the owners of certain premises located in Riverside, Illinois; that in the spring of 1957 Michaelson, Rabig & Ramp was a partnership engaged in the business of architecture and engineering; that plaintiffs employed them to prepare plans for the construction of a recreation room; that defendants agreed to draw plans, select and supervise contractors; that defendants selected McKirnan to perform certain heating work; that defendants breached their agreement (a) by failing to investigate the financial condition of McKirnan, (b) by selecting an incompetent heating contractor, (c) by representing to plaintiffs that McKirnan was qualified to do the heating work and that he was financially stable when in fact defendants knew or should have known that McKirnan was without the necessary skills and was on the verge of insolvency, (d) by failing to adequately supervise the work, (e) by failing to inspect or by negligently inspecting McKirnan’s work and by their negligence in several other respects; that plaintiffs were damaged by the acts and omissions of defendants in that plaintiffs’ premises were and continue to be without adequate heat, the building and its contents have been damaged and large amounts of money have been expended in temporary repairs and further expenditures will be necessary to put the premises in the condition that it would have been had defendants performed their agreements.

Defendants denied the allegations of negligence and breach of duty and averred affirmatively that the Statute of Limitations barred their action which plaintiffs denied in their reply.

The evidence disclosed that the architectural and engineering firm of Michaelson, Rabig & Ramp was employed by plaintiffs to prepare and draw plans for a recreation room and appurtenances in the basement of their residence in Riverside, Illinois. The firm prepared blueprints and specifications and solicited bids. The total cost of the contracts set was $38,000. One of the items installed was a heating system under the concrete floor of the recreation room. The contract for the heating was let by plaintiffs to defendant James E. McKirnan on April 26, 1957, and he undertook for a price of $2,079 to install heating according to specifications which did not call for radiant heating. The written contract between plaintiff John Morse and McKirnan was approved by defendant Ramp and signed by Morse. The work was inspected by defendants and was completed in the latter part of 1957. Late in 1958 or early in 1959 there was a leak in the floor which was repaired. John Morse testified:

The heating system in the recreation room was bad right in the beginning and we couldn’t keep heat and in 1964 it gave out. In 1959, 1958, 1959 to 1964 it was leaking and we couldn’t maintain heat in our home. I could hear the sump pumps running and the situation of the hot water in the sump pumps in the well continued. We had hot spots all over the floor.

Plaintiffs concede that the contract with McKirnan did not specify a radiant heating system but urge that the contract was subsequently changed by an oral agreement between plaintiff John Morse and defendants through one of the partners, Christian S. Michaelson. Plaintiffs sought to establish this oral modification by the testimony of John Morse that he had conversations with the deceased partner Michaelson to this effect.

Defendants objected to the admission into evidence of these conversations as violative of section 4 of the Evidence Act (Ill Rev Stats 1965, c 51, § 4), In Mansur v. Eugene Luhr Co., 84 Ill App2d 403, 408, 228 NE2d 265, the court held that conversations between a deceased officer of the corporation and plaintiff employee regarding the terms of an oral salary contract were not admissible under section 4 of the Evidence Act. See Hill v. A. J. Canfield Co., 157 F2d 849 (CCA 7th Circuit). Plaintiffs contend, however, that evidence of a transaction is admissible citing Lueth v. Goodknecht, 345 Ill 197, 177 NE 690 (lost receipt showing payment of a note) and Helbig v. Citizens’ Ins. Co., 234 Ill 251, 84 NE 897 (payment of an insurance premium). Neither of those cases dealt with conversations and are therefore inapplicable. The objection to the testimony of John Morse as to conversations with the deceased partner Michaelson out of the presence of any surviving partner should have been sustained.

Defendants next urge that prejudicial error occurred when plaintiffs were permitted to testify concerning allegedly unsatisfactory work by McKirnan’s father on occasions prior to 1957. The objection thereto should have been sustained on the ground of irrelevancy.

Further, the following question was asked of plaintiff John Morse by his attorney: “[I]sn’t it a fact that at about the time that this job was done by McKirnan that he went into bankruptcy? ” The court sustained the objection “at this time.”

It was later admitted by plaintiffs’ counsel in conference outside the presence of the jury that Mc-Kirnan did not go into bankruptcy until more than two years after the job was completed and no evidence as to bankruptcy was ever proffered. In his opening statement plaintiffs’ counsel told the jury:

And the evidence will show that at the time, or shortly after this occurrence took place, the heating contractor went into bankruptcy.

We deem the question to have been prejudicial to defendants. As stated in Chicago, B. & Q. R. Co. v. Kelley, 74 F2d 80, 86 (CCA 8th Circuit):

The mere putting of a question which conveys to the jury improper information, and which tends to render the trial unfair, should ordinarily entitle the opposing party to a new trial. Standing alone, we should hesitate to grant a new trial for this misconduct because the court took great care in admonishing the jury to disregard these questions and any inferences that might arise therefrom, but it must be understood that the conduct was highly improper and wholly unwarranted.

In the instant case there was no admonishment by the court and therefore the question when considered in relation to the opening statement resulted in substantial prejudice to the defendants. See 109 ALR 1091 and Gordon v. Checker Taxi Co., 334 Ill App 313, 79 NE2d 632.

Defendants also claim error in the admission into evidence, over objection, of the testimony of plaintiffs’ witness Kelly, a heating contractor, to the effect that he had on other occasions “installed a radiant heating system where the specifications call for something else.” We cannot perceive that Kelly’s actions on other jobs were binding on defendants.

In view of the foregoing errors we will reverse and remand for a new trial and deem it unnecessary to discuss all of the trial errors urged by the defendants.

We cannot accede to defendants’ request that we reverse without remanding. The trial judge’s rulings in denying a directed verdict for defendants and in refusing a judgment for defendants notwithstanding the verdict were proper. We cannot say that all of the evidence when viewed most favorably to the plaintiffs so overwhelmingly favors the defendants that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.)

One further point remains. The work was completed in 1957. The suit was filed in 1959 against the partnership in the firm name. (Ill Rev Stats 1957, c 110, § 27.1.) Two of the partners, Ramp and Rabig, were made additional parties in September 1965 and in November 1965 the Administrator of the Estate of Michaelson (Michaelson was the third partner) was made an additional party. The Administrator of the Estate of Rabig was substituted for Rabig. These defendants in their answers pleaded the five-year bar of the Statute of Limitations. (Ill Rev Stats 1965, c 83, § 16.) Plaintiffs filed a reply denying the applicability of the Limitation Statute. At the conclusion of the evidence plaintiffs moved to strike this affirmative defense and the court struck it. Defendants contend that plaintiffs chose to sue the partnership as an entity and were barred after five years from making the individual partners additional parties. Plaintiffs argue that the addition of these defendants was timely since it conformed to Ill Rev Stats 1965, c 110, § 46 (4). That section provides that such an amendment may be made and that it relates back to the date of filing of the original pleading, even though the Statute of Limitations had expired, upon conditions summarized as follows:

(a) the period of limitations had not expired when the original action was commenced;
(b) failure to join the additional party was inadvertent ;
(c) service of summons was in fact had upon the person, his agent or partner, even though he was served in the wrong capacity or as agent of another;
(d) the additional defendant, within the time that the action might have been brought or asserted against him, knew that the original action was pending and that it grew out of a transaction involving him;
(e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleadings grew out of the same transaction or occurrence.

Defendants maintain that there was no showing of compliance with subsection (b) since the failure to join additional parties was not inadvertent but was a definite choice to sue only the partnership entity. Plaintiffs counter with the argument that the following steps in the litigation demonstrate that their failure was inadvertent. The suit was filed in October 1959, two years after the completion of the work; no answer was filed by the defendant partnership until October 22, 1964; a substitution of attorney was filed for the partnership on January 22, 1965; the suggestion of death of one of the partners, Michaelson, and the consequent dissolution of the partnership was not spread of record until February 15, 1965, although counsel for defendants in his opening statement said that Michaelson had died in June of 1960. Amended complaints naming the individual partners were filed shortly thereafter.

The purpose of section 46(4) hereinabove referred to is set forth in the Historical and Practice Rules to that section:

Paragraph 4 was added in 1955 to cover the situation in which the plaintiff sues the wrong defendant but serves process upon the agent of the right defendant, and the Statute of Limitations runs on the claim before rectification of the mistake.

In Solone v. Reck, 55 Ill App2d 282, 204 NE2d 614, we adopted the definition of “inadvertence” as stated in Robinson v. Chicago Nat. Bank, 32 Ill App2d 55, 61, 176 NE2d 659:

In our view the word “inadvertence” means excusable ignorance, not excusable failure to act after the facts are discovered. ... A plaintiff must act with reasonable diligence after the identity of the true defendants becomes known.

Plaintiffs rely on Silver v. Lee Shell Equipment Corp., 31 Ill App2d 266, 175 NE2d 287. In that case plaintiffs sued the corporation and served summons on I. W. Shell. After the Statute of Limitations had run, plaintiffs, fearing that the Shells (I. W. and William) were not doing business as a corporation, made the Shells additional parties defendant. The Appellate Court reversed a dismissal and held that the failure to join the individuals in the first instance was inadvertent. However, the opinion stated that section 46(4) “took account of the problem that lawyers in our time have of determining the right defendant.” (Emphasis supplied.) Since plaintiffs knew the identity of the individual members of the partnership when suit was filed against the partnership in the firm name and elected not to sue them as individuals, they cannot avail themselves of section 46(4) as an exception to the bar of the Statute of Limitations. The trial court erred in striking the affirmative defenses of the Statute of Limitations and its ruling thereon is reversed.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

McCORMICK, P. J. and ENGLISH, J., concur.

       A coplaintiff, Dorothy Morse, also sued for personal injuries in Count II but this claim was stricken on the ground that it was barred by the Statute of Limitations.

       James E. McKirnan, doing business as H. V. McKirnan, was a named defendant but was dismissed on plaintiffs’ motion at the trial.

       There is a dispute as to whether radiant heating was actually installed and if so whether it was defective.

       In any action, suit or proceeding by or against any surviving partner or partners, joint contractor or joint contractors, no adverse party or person adversely interested in the event thereof, shall, by virtue of Section 1 of this act, be rendered a competent witness to testify to any admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission or conversation; and in every action, suit or proceeding a party to the same who has contracted with an agent of the adverse party — the agent having since died — shall not be a competent witness as to any admission or conversation between himself and such agent, unless such admission or conversation with the said deceased agent was had or made in the presence of a surviving agent or agents of such adverse party, ....

       § 27.1 Actions against partnerships.)
      (1) A partnership may be sued in the names of the partners as individuals doing business as the partnership, or in the firm name, or both.
      (2) An unsatisfied judgment against a partnership in its firm name does not bar an action to enforce the individual liability of any partner.
      The effect of a judgment against a partnership in its firm name is set out in 111 Rev Stats 1957, c 77, § lb:
      lb. Firm name of partnership as judgment debtor.
      A judgment rendered against a partnership in its firm name shall support execution only against property of the partnership and shall not constitute a lien upon real estate other than that held in the firm name.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Appellant, v. Gloria Alice Shick, a/k/a Gloria Alice Skip, a/k/a Gloria Alice Schick, Appellee.
    Gen. No. 52,532.
    First District, Fourth Division.
    October 23, 1968.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellant.

      No brief filed for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered on May 25, 1967, denying the State’s motion for a continuance and granting instead the motion of the defendant, Gloria Alice Shick, for a discharge for want of prosecution, and entering judgment on that order.

On April 21, 1967, the Cook County Grand Jury returned an indictment charging the defendant with involuntary manslaughter in connection with the beating and subsequent death of one Shirley Muscanero. Defendant was arraigned on May 9, 1967, and entered a plea of not guilty. On May 25, the case came up for trial in the Criminal Division of the Circuit Court, whereupon the defendant, through her attorney, requested a pretrial conference in the judge’s chambers. No record was made of that conference.

At the conclusion of the conference the defendant, through her attorney, stated that she was prepared to go to trial, but the State’s Attorney moved for a continuance based upon the fact that two of his material witnesses were not present and he had allowed his other witnesses to leave. The State’s Attorney stated that at the pretrial conference the court had told him he could send the remaining witnesses home. However, it appears that all of the witnesses except the two previously referred to were in court. The court denied the State’s motion and the defendant thereupon made a motion for dismissal. The court granted the motion and ordered that the defendant be discharged. From that order the State takes the instant appeal.

In this court the State contends that the trial judge abused his discretion in denying its motion for a continuance, and that the court improperly granted defendant’s motion discharging defendant for want of prosecution.

We find it unnecessary to discuss the State’s first contention since we have decided that the judgment of the trial court discharging the defendant was improper. A trial does not begin until the accused has been arraigned and the jury impaneled and sworn unless the accused has waived his right to a jury trial pursuant to chapter 38, section 115-1, Illinois Revised Statutes (1967). People v. Friason, 22 Ill2d 563, 177 NE2d 230; Jordan v. Savage, 88 Ill App2d 251, 232 NE2d 580. Chapter 38, section 115-4 (k), Illinois Revised Statutes (1967) provides that a trial court may not enter a judgment of acquittal and discharge a defendant at least until the State has had an opportunity to present all of its evidence. In the instant case, the record does not indicate that the trial had commenced, nor that the defendant had waived his right to a jury trial. Consequently, since the trial had not commenced, the State had no opportunity to present its evidence and the trial court simply had no authority to discharge the defendant at that point in the proceedings.

So far as has come to our attention, the only grounds which authorize discharge of a defendant without trial are those which have been codified into section 114-1 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, § 114-1). In that section there are set forth ten grounds on the basis of which the court “may” dismiss the charge when a “written motion” is presented. There was no such motion in this case, and if there had been it would have been unavailing since none of the statutory grounds is applicable to the facts in this record. The only ground which could be said to relate to the concept of dismissal for want of prosecution is that the defendant has not been placed on trial in compliance with section 103-5 (trial within 120 days under certain conditions), clearly not in point here.

The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.

       115-1. § 115-1 Method of Trial.) All prosecutions except on a plea of guilty shall be tried by the court and a jury or the court when a jury is waived by the defendant in open court.

       115-4. § 115-4 (k) Trial by Court and Jury.) When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herman Mitchell, Defendant-Appellant.
    Gen. No. 51,765.
    First District, Third Division.
    October 24, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a conviction for the crimes of robbery and aggravated battery. The trial was by jury and the court imposed a sentence of not less than 10 nor more than 20 years for the crime of robbery, and a concurrent sentence of 5 to 10 years for the crime of aggravated battery.

The defendant contends that his conviction rests on evidence which patently discloses reasonable doubt as to his guilt of the crimes with which he was charged; that defendant’s sentence of 10 to 20 years was excessive and should be reduced by this court, and that the sentence of 5 to 10 years for aggravated battery should be set aside because both the robbery and aggravated battery charges arose out of the same occurrence.

The evidence showed the following: On August 28, 1965, Mr. Pedar Johnson received three visitors from out of town. On that evening the foursome went to a lounge in Chicago where they drank some beer and then left to return to Mr. Johnson’s home. They went to a bus stop at the corner of Blackhawk and Larrabee. After standing on that corner for a few minutes the four were approached by a young man who asked for bus fare. One of the men in the Johnson group gave the youth some change but when the youth asked for return bus fare he was refused and he departed. After a short time, as a bus was approaching, Johnson and his companions found themselves surrounded by a group of young men, one of whom was the person who had asked for money. Johnson started to turn to his left and as he did so he was struck squarely on the chin by an individual identified as Herman Mitchell, the defendant. John Webster, one of Johnson’s associates, was picked up bodily from behind and carried around the corner and held down while they took his wallet and watch. He struggled a little and then saw someone holding a knife and thereafter he did not move. After Johnson had been knocked to the pavement he was bewildered and stunned. Several seconds later Johnson got up, was hit again and knocked to the pavement. He then attempted to get up a second time, was hit and lost consciousness. Herman Mitchell, the defendant, was identified by Johnson as the man who had struck him. Johnson was taken to the Cook County Hospital. Approximately $10 which he had on his person was taken. Mr. Johnson’s testimony was that he had a total of three beers during that evening. Johnson sustained a basal skull fracture and a fractured eardrum.

Peter Warren, who was one of the Johnson group, testified that when the youths surrounded the Johnson group that in addition to the one who had first asked them for the bus fare there were five or six other youths surrounding them. Warren’s watch was stolen by the youth who obtained the bus fare. He was not sure whether that youth was the one who took his wallet.

Isaac Davis, a witness called by the State, testified that he saw the defendant, Mitchell, whom he had known for about a year, hit Johnson and that Johnson fell from the blow.

Eloise Hunt, another State witness, testified that she lived at 1486 North Larrabee and that at about 11:30 p. m. on August 28, 1965, she looked out the window and saw Herman Mitchell, the defendant, beating, stomping and kicking the man. She was looking from her window which was directly across the street from the corner on which the incident took place. On cross-examination it was brought out that the witness’ mother had been charged with the crime of murder and she knew that Herman Mitchell’s mother was going to testify at the trial of the witness’ mother. When asked if her mother was upset at that she said, “No, she wasn’t because after they got out they got drinks and things together and they never did discuss it much.”.

Robert Sherman, a patrolman of the Chicago Police Department, went to the corner of Blackhawk and Larrabee in response to a call and found several persons and “a victim lying on the ground; unconscious.” He rushed the victim, Pedar Johnson, to the hospital.

Two other police officers testified to making the arrest of the defendant in his home at 3:00 a. m. on August 29, 1965.

The defendant testified that he was home playing records on the evening of August 28, 1965, and that his friend, Eunice Smith, came to his house. At about 9:00 p. m. he walked Eunice home and she informed him she was pregnant with his child and asked if Mitchell intended to marry her. Mitchell answered that he did not know and that Eunice Smith stated that if he “didn’t marry her and help take care of the kid that she was going to have me (Mitchell) put away in jail.” Mitchell further testified that he left Eunice Smith’s home shortly after 9:00 p. m., and when he arrived at his home he ate a sandwich. He intended to go out but his stomach hurt and he went to sleep. The next thing he knew he was arrested by the police for robbery.

Officer Frank S. Blasch testified that when the police awakened Mitchell and questioned him as to his whereabouts on the evening of August 28, 1965, Mitchell said that he had taken his girl friend to the movies. Blasch also testified that the witnesses to the occurrence had been located by a house to house canvass of the neighborhood and that Isaac Davis, one of the State’s witnesses, lived approximately five blocks away from the intersection of Blackhawk and Larrabee.

Bertha Hunt, an additional witness for the State, testified that she lived at 1486 North Larrabee, on the evening of the occurrence. She had known the defendant for about ten years. She lived on the third floor and her daughter called her to the window. She saw a cluster of people below, and also saw Herman Mitchell beating a white man. Mitchell was standing over the white man, kicking him, and then another man pulled him across the street. She was asked whether she knew the defendant’s mother. When she was asked how she and the defendant’s mother got along she said, “We got along fine,” but she did not get along with the defendant’s mother now because she came by and threatened the witness’ daughter because she came here to court. The witness further testified that she had been charged with murder and that Mrs. Mitchell testified against her, but that she was not angry with Mrs. Mitchell nor did she threaten Mrs. Mitchell or her son. The witness was found not guilty of the murder.

The first contention of the defendant is that the State failed to prove beyond a reasonable doubt the guilt of the defendant of the crimes with which he was charged. The defendant argues that of nine witnesses who testified for the State four did not identify the defendant. It is the defendant’s contention that, while five of the State’s witnesses identified the defendant as the man who beat Pedar Johnson, the evidence of these witnesses should be given close scrutiny before being accepted as proof beyond a reasonable doubt that the defendant was in fact the man involved in the altercation with Johnson. The defendant contends that Pedar Johnson was standing on a corner illuminated only by streetlights; that he and his party were surrounded by the group; that he turned his head and was struck in the jaw and knocked to the pavement; that after several blows he was rendered unconscious. The defendant argues that the whole episode lasted three to five seconds, and that it is very doubtful that a man who was being physically attacked could in that short period have the opportunity to study the face of his attacker so as to identify him later. There were four other witnesses who identified Mitchell positively, and the defendant argues that their testimony should be suspect. Each of the witnesses was subjected to cross-examination by defense counsel. The jury, sitting as trier of facts, was confronted with a clear conflict in the evidence which it was their function to decide. People v. Robinson, 30 Ill2d 437, 197 NE2d 45. The sufficiency of the identification of the defendant is always a question for the jury and will not lightly be set aside on appeal. People v. Clark, 28 Ill2d 423, 192 NE2d 851. We do not believe that the identification of the defendant was in any way unsatisfactory, nor can we say that the testimony of the State’s witnesses was not so positive as to identification as to warrant the setting aside of the jury’s verdict. The evidence as a whole was amply sufficient to support the conviction of the defendant on both charges beyond any reasonable doubt.

The defendant secondly contends that his sentence of 10 to 20 years for robbery was excessive and should be reduced.

The defendant cites the case of People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, where the court said on page 179:

“The hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation programs provided in modern penal institutions. Excessive minimum sentences, imposed by the courts, may defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished.”

A hearing in aggravation and mitigation was conducted by the court before sentence was pronounced upon the defendant. The court was aware that Mitchell was 19 years of age; that he had been sentenced in 1962 to 30 days for robbery, to four months in 1964 for a battery committed by him, and in 1965 to the House of Correction for burglary. The court properly considered that the victim sustained a fractured skull and a broken eardrum which resulted from a vicious and senseless beating and kicking of Pedar Johnson. Indeed, the victim might have been more seriously injured had not someone arrived and pulled Mitchell away from him. We believe from the evidence in this case that the defendant demonstrated an uncontrolled viciousness, and that, together with his prior record, warranted the imposition of the penalties imposed by the trial judge. In People v. Valentine, 60 Ill App2d 339, 355-356, 208 NE2d 595, we said:

“We believe that the power to reduce sentences should be used with caution and that a sentence imposed by the trial judge, who sees the defendant and is in a far better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so. The penalty decided upon by the trial court, if within statutory limits, should not be changed merely because of judicial clemency or just because the reviewing court would have imposed a different one if it had been in the trial court’s position.”

In People v. Gassaway, 65 Ill App2d 244, 252, 212 NE2d 689, we said:

“However, the sentence imposed upon the defendant was a matter of discretion with the trial court, and in the absence of unusual circumstances, this court will not interfere.”

See also People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503.

This defendant, upon his past record and the evidence adduced at the trial of this case, is deserving of no leniency.

The last contention of the defendant is that the concurrent sentence of 5 to 10 years imposed upon the defendant for aggravated battery should be vacated because the aggravated battery charge and the robbery charge grew out of the same conduct or occurrence.

In People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299, the defendant was charged with the crimes of forcible rape and incest. In that case the court said that the question raised was whether two separate punishments can be imposed for a single act. The defendant was charged with rape and with incest for having had unlawful carnal knowledge with his ten-year-old daughter. On page 259 the court said:

“Force and lack of consent are essential elements of the charge of rape upon which the defendant was convicted, (People v. Jeanor, 23 Ill2d 347,) but not of incest. (David v. People, 204 Ill 479.) The relationship between the parties is an essential element of incest, (People v. Laughery, 396 Ill 213,) but not of rape. The common denominator is the element of unlawful carnal knowledge.”

The court continuing on page 261 said the following, after discussing the cases of People v. Stingley, 414 Ill 398, Ill NE2d 548, and People v. Schlenger, 13 Ill2d 63, 147 NE2d 316:

“While neither the Stingley nor the Schlenger case is precisely in point, the views there expressed indicate the basis of decision in the present case. The Stingley case makes it clear that two punishments can not be imposed for a single act, even though different ingredients are involved in the two crimes. In that case, however, the two sentences were identical, and it was not necessary to decide which should be set aside. It was sufficient to hold, as the court held, that ‘the satisfaction of one will satisfy both.’ (414 Ill at 405.) In the Schlenger case, where different sentences were imposed to run concurrently, the court affirmed the judgment for the greater offense and set aside the other.
“In the present case we are of the opinion that only one sentence should have been imposed, and that sentence should have been for the greater offense.”

In People v. Weaver, 93 Ill App2d 311, 316, 236 NE2d 362, the court said:

“Section 2-4 of the Criminal Code defines conduct as ‘an act or a series of acts, and the accompanying mental state.’ The Committee Comment states that the word ‘conduct’ is used in the sense of ‘the same transaction’ as discussed in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958).”

The question here involved is primarily whether the offenses charged against the defendant, namely, aggravated battery and robbery, arose from the same conduct. Section 1-7 (m) of the Criminal Code of 1961 permits the imposition of consecutive or concurrent sentences when a person shall have been convicted of two or more offenses which did not result from the same conduct.

In People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651, the court concluded that since rape and burglary are each designated as a forcible felony the conviction for rape is the greater offense. The sentencing for rape was affirmed but reversed as to the burglary charge. Thereafter the defendant was granted leave to appeal and the State sought to file a petition to cross-appeal from the judgment of the Appellate Court reversing defendant’s conviction for burglary with intent to commit rape. The Supreme Court in that case (People v. Ritchie, 36 Ill2d 392, 397, 222 NE2d 479) said, in commenting on the Appellate Court’s opinion, the following:

“The sense of the opinion appears to be that since the two crimes charged, i. e., rape and burglary with intent to commit rape, arose out of the same conduct or transaction and against the same person it would be unfair and prejudicial to defendant to impose two sentences and therefore it reversed the burglary conviction, ....
“The State convincingly argues that the principle set forth in the cited cases is not applicable; that the crimes there charged arose out of a single act, for instance, rape and incest involving the same person, and armed robbery and grand larceny involving the same money, whereas here there are two separate and distinct acts giving rise to separate and distinct substantive offenses.”

The Supreme Court then proceeded to say that the question was not properly before them on review because the State had no right to appeal, as the State has, under the law and rules of the Supreme Court, only the right to appeal from the order of the Appellate Court if the substantive effect of its judgment results in dismissing an indictment, information or complaint.

In the later case of People v. Raby, 40 Ill2d 392, 240 NE2d 595 (1968), the Supreme Court stated that the Appellate Court’s holding in People v. Ritchie, supra, is “questionable.” It was, no doubt, the feeling of the Supreme Court that in the Ritchie case the sentences for rape and burglary with intent to commit rape should both have been upheld, on the theory that rape and burglary with intent to commit rape did not arise out of the same conduct or transaction.

While force or threat of force is a necessary element of robbery, plus the taking of property or money, and force, of course, is required in proof of aggravated battery, the two offenses did not necessarily grow from the same conduct.

Johnson, the complaining witness in this case, testified that he was knocked down three times by the defendant, and other evidence showed that the defendant did not discontinue his vicious attack until he was pulled away by someone else. The offense of aggravated battery does not include the taking of money. Proof of robbery requires, as an element, proof of the taking of money or property. The two offenses here involved did not arise out of the same conduct or transaction.

We therefore conclude that the conviction and sentencing of the defendant for robbery and for aggravated battery should be affirmed.

Judgments affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    Rose Novak, Plaintiff-Appellant, v. The Equitable Life Assurance Society of the United States, Defendant-Appellee.
    Gen. No. 52,154.
    First District, Third Division.
    October 24, 1968.
    Joe Reiff, of Chicago, for appellant.
    Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Miles G. Seeley, Burton E. Glazov, and Roger J. Kiley, Jr., of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The plaintiff Rose Novak is the beneficiary under a policy of insurance issued to her deceased husband by the defendant. She seeks to recover for his alleged accidental death. Defendant moved for summary judgment on the ground that the insured was engaged in the commission of a felony at the time of his death and that recovery under such circumstances was barred by a clause in the policy which reads as follows:

“No payment shall be made under this policy for any loss resulting from or caused directly or indirectly, wholly or partly, by . . .
it
“(d) participation in or in consequence of having participated in the committing of a felony.”

The trial court granted the summary judgment and the plaintiff has appealed. She contends that the conduct of her husband was not felonious and that the summary judgment was improperly granted as there were genuine issues of fact to be tried. The facts follow.

On March 7, 1965, the plaintiff shot and killed her husband Robert Novak. She was tried for his murder, pleaded self-defense and was acquitted. In support of its motion for summary judgment the defendant produced a transcript of the plaintiff’s testimony at the murder trial. Defendant contends that this testimony in support of her plea of self-defense reveals that her husband was at the time in question about to kill her, that his conduct was not mere preparation for the commission of a felony, but was then and there felonious and within the exclusionary clause of the policy. The circumstances surrounding the shooting as described by the plaintiff may be summarized as follows.

On March 6,1965, the night before he was shot, Robert Novak cursed and beat the plaintiff. He drew a loaded pistol, pointed it at her and threatened to kill her. The plaintiff’s brother intervened and succeeded in disarming Novak and unloading the weapon. The following morning Novak again beat the plaintiff and ordered her to reload the gun which her brother had unloaded the night before. Novak later entered the apartment shouting and cursing at the plaintiff, “Where are you, you son-of-a-bitch, I will kill you.” He chased her through the apartment repeatedly cursing and threatening to kill her. Plaintiff ran away from him, grabbed one of several available loaded pistols and fearing that she was about to suffer death, shot and killed him. Defendant also relies on an averment by the plaintiff in her amended complaint alleging that the decedent cursed and assaulted her and that she believed she was about to suffer death or serious bodily injury when she shot and killed him “in necessary self-defense.” It is therefore undisputed that decedent’s conduct was sufficiently violent to place the plaintiff in apprehension of death.

Attempted murder and attempted manslaughter are felonies (Ill Rev Stats, c 38, §§8-4, 9-1, 9-2 (1967)). A person commits the offense of attempt when, with the intent to commit the principal offense, he performs some act which constitutes a substantial step toward the commission of that offense. Ill Rev Stats, c 38, § 8-4 (1967). The plaintiff contends that decedent was at worst preparing to commit a felony and that he did not perform any act which could be considered a substantial step toward the commission of an offense against her. She further argues that in view of the turbulent domestic situation which existed in their home, the decedent’s outburst should be considered a common occurrence and insufficient evidence of any criminal intent on his part. No such mild interpretation can be placed on the husband’s actions. Plaintiff must have been satisfied that her husband had taken a “substantial step” toward killing her when she raced through the apartment, grabbed a loaded gun and shot him. That is the only basis on which her defense could have been sustained.

Justifiable use of force is described in the Criminal Code (Ill Rev Stats, c 38, § 7-1 (1967)) as follows:

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

Pointing a loaded gun at the plaintiff, the threat to kill, the beating, the order to reload the gun her brother had unloaded, the pursuit from room to room, the cursing and shouting all reveal more than mere preparation for the commission of a felony. The only inference which may be drawn from this evidence is that the insured husband was participating in the commission of a felony when he was killed and by the terms of the policy the accidental death benefit coverage does not apply. Espinoza v. Equitable Life Assur. Society, 345 Ill App 240, 103 NE2d 149; Powell v. New York Life Ins. Co. (Fla App), 120 So2d 33 (1960).

Of the cases cited by the plaintiff only two involve insurance policies and neither of those cases involves a felony exclusion. In both Shields v. Prudential Ins. Co. of America, 6 NJ 517, 79 A2d 297 (1951) and Wylie v. Union Casualty & Life Ins. Co., 15 Ill App2d 448, 146 NE2d 377, the sole issue presented was whether the death of the assured was the result of accidental bodily injury. That issue turns on whether the insured in that case could foresee the possibility of his own death as a consequence of his attack on another person. That issue was not made in the instant case as a basis for the summary judgment. The sole issue presented here is the application of the felony exclusion, a provision not involved either in Wylie or Shields, supra.

Plaintiff’s prior testimony is not only the best evidence of what occurred, it is the only evidence and where, as here, the facts are undisputed and can lead to but a single conclusion, the court may properly enter a summary judgment. Giampa v. Sunbeam Corp., 68 Ill App2d 425, 216 NE2d 233. There are no genuine issues with respect to any material facts and the judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    National Acceptance Company of America, a Corporation, Plaintiff-Appellee, v. The Exchange National Bank of Chicago, as Trustee Under Trust No. 15795, the Hardwood Door Corporation, Sol Auerbach, Fred C. Wright, Pet Wright, National Can Corporation, J. S. Bathalter and Nancy Nosowski, Defendants-Appellants.
    Gen. No. 52,483.
    First District, Third Division.
    October 24, 1968.

      Ordower & Ordower, and Robert A. Sprecher and Edward W. Barrett, of Chicago, for appellants.
    Archie Schimberg, and Sidney C. Kleinman, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This action was commenced by the National Acceptance Company of America (National) to foreclose two trust deeds, each securing the same parcel of realty, which had been executed by the Hardwood Door Corporation (Hardwood). Hardwood, the principal defendant, contested the action and asserted in its answer that its indebtedness to National had been paid or released; it also counterclaimed, praying that the deeds be cancelled and the recorded liens removed as a cloud upon the title of the property. The cause was referred to a master who found the equities in National’s favor and recommended that a decree of foreclosure be entered. The chancellor adopted the master’s findings, held Hardwood to be indebted in the sum of $95,731.91 and ordered a foreclosure sale to satisfy the indebtedness. The defendants appeal from this decree.

National is engaged in the business of commercial financing. In February 1961, it agreed to finance Hardwood on a day-to-day basis for an indefinite period and received a bulk assignment of Hardwood’s accounts receivable as security. Under this arrangement National agreed to advance Hardwood a sum not in excess of 80% of these accounts. As additional security National was given a lien on Hardwood’s entire inventory and it received, from time to time, demand notes executed by Hardwood. Hardwood gave National one such note for $50,000 in June 1961, and another for $1,000 in March 1962. These notes were secured by all of Hardwood’s accounts receivable and the two trust deeds on its real property which constitute the subject matter of the present litigation. Both deeds contained a provision securing National for all future advances up to $200,000.

In January of 1963, Chi-Way Millwork Corporation (Chi-Way) purchased Hardwood’s assets and assumed its liabilities, including the indebtedness due National which at that time totaled $325,839.28. Of this amount $255,839.28 had arisen from money advanced on Hardwood’s accounts receivable while the remainder, $70,000, was evidenced by its notes. The total indebtedness was secured by accounts receivable of $381,871.10, inventory of $339,180.01 and the two trust deeds.

Early in January 1963, Ashley Wright, the president of Hardwood, met with Nathan Paset, National’s president, and informed the latter of Chi-Way’s impending acquisition. He also inquired into the possibility of Chi-Way continuing with the financial arrangement then in existence between Hardwood and National. Paset told Wright that the Chi-Way acquisition and the continuation of similar financing arrangement with Chi-Way were amenable to him, but stated that Hardwood would have to stand behind Chi-Way. Paset desired a guaranty and also requested another trust deed as further protection. The guaranty was executed but the proposed trust deed was not. Although the guaranty contained a statement that it was secured by a trust deed of even date, Wright declined to execute the deed because he was of the opinion that National already had sufficient security. By the terms of the instrument signed by Wright, Hardwood guaranteed any and all indebtedness, not in excess of $200,000, which Chi-Way would thereafter owe National.

The same day that Wright executed Hardwood’s guaranty, National and Chi-Way entered into a financial agreement similar to the one previously existing between National and Hardwood. This arrangement continued until March of 1965 when Chi-Way was placed in involuntary bankruptcy. The present action followed when National was unable to recover the entire amount owed in the subsequent liquidation proceedings. Of the $95,-731.91 found due by the master, slightly less than half ($47,643.05) represents Chi-Way’s own indebtedness to National and the balance is attributable to unpaid Hardwood notes ($40,000) and accrued interest thereon ($8,-088.86).

Hardwood’s position is that it is not liable for Chi-Way’s indebtedness and that its notes were paid in full.

We will first consider the notes. Hardwood admits that on May 8, 1963, there was an unpaid balance of $70,000 in its notes payable account but asserts that the indebtedness was subsequently paid in full. According to National’s books, the May 8th balance was reduced by $30,000 between that date and December 1963; no further reduction is noted therein and the $40,000 balance remains unpaid. No entry appears in this account from December of 1963 until 1966, when interest was charged. This latter entry was made after the present litigation was under way. The account bears the handwritten notation “Account expired See Chi-Way Mill-work,” but there is no indication, and there was no testimony, as to when this was added or who was responsible for doing it. Hardwood argues that the notation is significant because certain accounts receivable payments made by Chi-Way after May 8th should have been credited to Hardwood, and these more than made up for the unpaid balance in its notes payable account.

From the date of its acquisition of Hardwood, Chi-Way sent daily reports to National concerning the status of both its own and Hardwood’s accounts receivable. By May 8, 1963, the Hardwood account had been reduced to $54,231.90. On or about this date, Chi-Way borrowed $250,000 from National. National deducted $54,231.90 from the loan and credited it to Hardwood’s account before remitting the balance to Chi-Way. Hardwood’s account was thus closed out on National’s books. Thereafter Chi-Way submitted the receivable reports under its own name, irrespective of further collections that may have been made from Hardwood’s outstanding debtors. National credited the payments to Chi-Way’s account. There are no entries in this account which in any way substantiate Hardwood’s claim that some of these payments were or should have been made in its behalf and, since its accounts receivable indebtedness had been cancelled, should have applied on its notes payable balance.

Payment is an affirmative defense which must be pleaded by the party maintaining it (Economy Truck Sales & Service, Inc. v. Granger, 61 Ill App2d 111, 209 NE2d 1 (1965)) and proven by a preponderance of the evidence. Hish v. Shelby County, 317 Ill App 540, 47 NE2d 107 (1943). Without going into detail, we may state that we have subjected the record to careful examination and have inspected each exhibit and find proof of payment of Hardwood’s notes payable indebtedness (other than the $30,000 previously mentioned) completely lacking. The master’s finding and the court’s decree that a balance of $40,000 is due on Hardwood’s notes is fully in accord with the evidence.

Hardwood next maintains that it is not liable for Chi-Way’s debts because the guaranty became inoperative on May 8, 1963, by reason of National’s own action in closing Hardwood’s receivable account. In support of this position it cites the conversation between Paset and Wright prior to the execution of the guaranty where, allegedly, it was understood that Hardwood would remain a guarantor only until such time as Chi-Way could attain a certain degree of financial stability on its own. Hardwood argues that by closing the account National openly signified that it considered Chi-Way to have achieved the requisite financial status and the guaranty was therefore terminated; that Hardwood cannot be held accountable for funds advanced to Chi-Way after May 8th, and that all sums advanced prior to that day have been repaid.

Closing Hardwood’s account was done at Chi-Way’s direction and was a convenience to both Chi-Way and National. The secretary of Hardwood held the same position with Chi-Way after the takeover. One of his responsibilities was the preparation of the daily reports concerning the accounts receivable. He testified that closing the account was merely a clerical matter. The arrangement was accomplished by National drawing a check for $54,231.90 payable to itself, crediting this to Hardwood, debiting it to Chi-Way and deducting it from Chi-Way’s $250,000 loan. This bookkeeping transaction cannot be elevated to a release of Hardwood’s obligation as a guarantor.

Where a contract of guaranty is unequivocal in its terms it must be interpreted according to the language used, for it is presumed that the parties meant what their language clearly imports. It is not what one of the parties may have intended, but what is shown by the contract to have been the intention of both parties. Peoria Savings, Loan & Trust Co. v. Elder, 165 Ill 55, 45 NE 1083 (1897); Castle v. Powell, 261 Ill App 132 (1931).

Although not limited to specific duration, the guaranty contained the following language describing the manner by which it could be terminated:

“It . . . shall continue in full force and effect until notice of termination is given and received by registered mail, and all of said indebtedness, liabilities or obligations created or assumed are fully paid, performed and discharged.”

In spite of the above provisions, Hardwood would have the instrument construed to have expired at a time when its obligations were not fully paid — when admittedly it still owed thousands of dollars on its demand notes. H there was an understanding that the guaranty would expire when Chi-Way reached a definite financial plateau, it would have been simple for a provision to that effect to have been inserted in the contract. While it may have been impossible to have forecast an exact date when Chi-Way would reach a satisfactory financial position, this does not explain the failure to insert a clause referring to the attainment of this position as the expiration date.

The provisions of the guaranty pertaining to the proper method of termination are clear and all-inclusive. Since Hardwood did not comply with these provisions the guaranty must be deemed to have remained in operation.

This brings us to what seems to be the principal issue between the parties: whether the guaranty is secured by the trust deeds. Hardwood contends that if it is obligated for Chi-Way’s indebtedness, National must enforce the obligation in an action at law — that it cannot do so through a foreclosure proceeding.

There are two reasons why the indebtedness arising under the guaranty must be held secured by the trust deeds. First, the language of the deeds indicates an intention that their coverage extend to indebtedness such as contemplated by the guaranty. The applicable provision of the deeds is as follows:

“WHEREAS, Mortgagor has executed, acknowledged and delivered this trust deed to secure, in addition to the note described above, any and all sums, indebtedness, and liabilities of any and every kind now or hereafter owing or to become due from Mortgagor to holders of the Note, however created, incurred, evidenced, acquired, or arising, whether under the note or this trust deed or any other instruments, obligations, contracts or agreements of every kind now or hereafter existing or entered into by and between Mortgagor and holders of the Note or otherwise, and whether direct, indirect, primary, secondary, fixed or contingent, together with interest thereon as provided in said instruments, and any and all renewals and extensions of any of the foregoing, all of which said sums, indebtedness and liabilities are hereinafter referred to as ‘future advances’ and all of which ‘future advances’, as aforesaid together with any such instruments, are hereby expressly secured by this trust deed. . . .”

A trust deed in the nature of a mortgage is subject to the same rules as a mortgage. Ill Rev Stats 1961, c 30, § 105. A mortgage may be given to secure future advances and not be void for indefiniteness. Freutel v. Schmitz, 299 Ill 320, 132 NE 534 (1921); Davidson v. Iwanowski, 341 Ill App 152, 93 NE2d 139 (1950). Furthermore, a mortgage can be given to guarantee the debt of another. Riddle v. La Salle Nat. Bank, 34 Ill App2d 116, 180 NE2d 719 (1962).

Whether the security of a mortgage extends to the secondary liabilities of a mortgagor is a question of intention to be ascertained from the wording of the instrument. 172 ALR 1096. All-encompassing provisions similar to those contained in the trust deeds have been labeled “dragnet clauses” (see e. g., First v. Byrne, 238 Iowa 712, 28 NW2d 509 (1947)) and “anaconda mortgages” (e. g., Berger v. Fuller, 180 Ark 372, 21 SW2d 419 (1929)) because by their broad terms the unsuspecting debtor is enwrapped in the folds of secured indebtedness. They are to be carefully scrutinized and strictly construed. United States v. American Nat. Bank of Jacksonville, 255 F2d 504 (5th Cir 1958).

Even when subjected to a strict construction, the unambiguous language of the trust deeds can be interpreted in no other manner than as securing the indebtedness arising under the corporate guaranty. Their wording secures all future indebtedness of Hardwood to National, however created — and whether of a direct, indirect, primary or secondary nature. The intention of the contracting parties could not be evidenced by more certain terms. Although the deeds employ perhaps the broadest possible terminology in describing what debts fall under the umbrella of security, it must be remembered that Hardwood was under no obligation to enter into agreements containing such sweeping language. The sympathy one might entertain for the mortgagor should be tempered by remembering that contracting parties enjoy the freedom to employ in the marketplace whatever they may possess of wisdom or folly (Nardi, Pain & Podolsky v. Vignola Furniture Co., 80 Ill App2d 220, 224 NE2d 649 (1967)) and that a court is without power to alter the clear terms of a mortgage contract. Illinois Joint Stock Land Bank of Monticello v. Leas, 273 Ill App 34 (1933).

There is yet another reason — not mentioned in the briefs of either party, but a conclusive one — why the trust deeds must be held to cover the guaranty. The guaranty itself declares that it is secured by one of the deeds upon which the foreclosure proceeding is based— the instrument of March 1962:

“To secure the performance of this guaranty . . . the undersigned ... do hereby . . . pledge . . . the following . . . :
it
«
(t
“Trust Deed dated March 22, 1962 made by the undersigned in favor of National Acceptance Company of America.”

Hardwood is liable for Chi-Way’s indebtedness as well as its own; the future advances provision in the trust deeds included the indebtedness arising through the guaranty; the guaranty was neither terminated nor released and the indebtedness was neither paid nor extinguished. The decree is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    Herman L. Schwinge, Plaintiff-Appellee, v. The Village of Niles, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,303.
    First District, Second Division.
    October 29, 1968.

      George D. Karcazes, John A. Doyle, and James R. Sneider, of Chicago (George D. Karcazes, of counsel), for appellant.
    Bernstein & Ganellen, of Chicago (Sol H. Ganellen and Glenn A. McTavish, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The Village of Niles appeals from a declaratory decree which adopted the findings of a master in chancery that plaintiff’s subject real estate was partly zoned R-4 multiple-family residential and partly zoned B-l retail business, and further that the B-l classification of the property was arbitrary, unreasonable, discriminatory and confiscatory. The decree orders that the portion of the subject property zoned B-l be rezoned to an R-4 classification, which would permit plaintiff to construct an apartment building on the entire subject property. The defendant Village maintains that the findings of the master, adopted by the chancellor, are against the manifest weight of the evidence and further that plaintiff failed to sustain his burden of proving, by clear and convincing evidence, that the B-l zoning classification of part of the subject property was unreasonable and unrelated to the public health, safety and welfare.

The subject property, located in the Village of Niles, is a 1.16-acre parcel of real estate, measuring approximately 102 feet along its north-south perimeters and approximately 470 feet along its east-west perimeters. In 1954 plaintiff filed a plat of subdivision on which the subject property was designated as “Block A.” The property fronts on Nórdica Avenue to the east and is bounded along its southern perimeter by the rear lot lines of eight residential lots which front on Jonquil Terrace and which were created by plaintiff’s plat of subdivision. The northwest half of the subject property is bounded by a shopping center and the northeast half by townhouses and vacant land. The area to the west of the property is unimproved.

In 1961 the Village of Niles adopted a comprehensive zoning ordinance and issued a district zoning map as required by statute. The area to the southeast and to the south of the subject property was classed R-2 single-family residential; the area to the northeast of the subject property was given an R-4 multiple-family residential classification; and the area to the west and the northwest received a B-l general business classification.

A copy of the original zoning map, which was attached to a copy of the Village’s zoning ordinance entered into evidence, depicts the east-west district zoning line separating the B-l/R-4 districts north of the subject property from the R-2 district on the south as a heavy, black line measuring some 100 feet in width according to the scale of the zoning map. Witnesses for both plaintiff and defendant testified that the subject property lies directly beneath and within this heavy district line, so that it is not possible to determine whether the subject property falls within the northern B-l/R-4 districts, as plaintiff maintains, or whether it falls entirely within the southern R-2 district, as defendant maintains.

Below are sketches purporting to be the parties’ respective theories of the zoning in the area in question. (Fig. I, representing theory of plaintiff, and Fig. II, that of defendant Village):

A city planner, whose office prepared the original district zoning map, testified that in his opinion the subject property lies within the B-l/R-4 districts, but admitted on cross-examination that he “can’t be positive about anything . A city planning and zoning expert testified that his interpretation of the district zoning map placed the subject property within the northern B-l/R-4 districts, in light of the eight residential lots immediately to the south of the subject property which fronted on Jonquil Terrace. A village trustee, serving as such at the time the instant zoning ordinance was enacted, made an offer of proof, since the master had not then determined whether secondary evidence and opinions would be admissible in the case, that it was the intention of the village trustees to zone plaintiff’s subject property R-4. Defendant’s witnesses, including a real estate appraiser, the village building commissioner, and the village engineer, testified that, in their opinion, the subject property fell within the southern R-2 classification.

It is apparent there is direct conflict in the evidence presented with respect to the zoning district within which the subject property falls. The district zoning map does not disclose the precise zoning status of the property and recourse must therefore be had to secondary evidence and witness interpretation of the map. Where a master has heard evidence and has made findings of fact, and those findings are approved by the chancellor, the reviewing court will not disturb a decree based thereon unless clearly against the manifest weight of the evidence. Lucey v. Shelton, 24 Ill2d 471, 182 NE2d 215 (1962); Kioutas v. City of Chicago, 59 Ill App2d 441, 208 NE2d 587 (1965). The credibility of witnesses, as well as the weight to be given to their testimony and other evidence entered in the case, present a question to be determined by the trier of fact. Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584 (1957); Gable v. Village of Hinsdale, 87 Ill App2d 123, 230 NE2d 706 (1967). We cannot say that the finding of the master, adopted by the chancellor, that the subject property falls within the B-l/R-4 districts is against the manifest weight of the evidence.

Three witnesses for plaintiff gave evidence that the subject property falls within the B-l/R-4 districts, together with their reasons upon which they based this opinion. Plaintiff filed his plat of subdivision some seven years prior to the adoption of the zoning ordinance by the Village. On the plat plaintiff designated the subject property as “Block A,” comprising a large rectangular parcel of real estate, whereas the property immediately to the south was divided into individual residential lots. The only access to a public way from the subject property is to the east, some 102 feet along Nórdica Avenue; it would be unreasonable to conclude that the subject property falls within the R-2 district to the south inasmuch as residential lots, if fronted along Nórdica Avenue, would have a depth of some 470 feet, or, if fronted along the northern boundary of the subject property, would have a depth of only 102 feet, less street footage necessary to render the lots accessible to the public way. The areas to the north of the subject property, on the contrary, are zoned for uses which generally require larger frontage footage than does a residential lot. It is therefore reasonable to conclude that the intent of the village officials who drew the zoning boundaries was to place the large, undivided subject property area within the B-l/R-4 districts. The physical position and characteristics of the subject property consequently reinforces the evidence given by plaintiff’s witnesses.

Defendant contends that, under plaintiff’s theory of the case, the east-west district zoning line separating the northern B-l/R-4 districts from the R-2 district on the south would move in an upward direction at the center of Nórdica Avenue and then easterly again at the northeast corner of the subject property, due to the existence of the R-2 zoning of the property directly across Nórdica Avenue from the subject property. Defendant argues that this causes the district line to run in a jagged manner, not in keeping with the customary manner of setting zoning boundary lines. However, three of plaintiff’s witnesses testified that the property to the east of the subject property, across Nórdica Avenue, is zoned R-4, leading to the conclusion that the residences in that area are non-conforming uses. Consequently the district zoning line would proceed in an uninterrupted manner from the western end of the subject property to its terminal point far to the east of Nórdica Avenue.

The Village further maintains that, in any event, the B-l zoning classification of the west portion of the subject property was not shown by clear and convincing evidence to be unreasonable and unrelated to the public health, safety and welfare. The Village argues that the classification therefore should not have been declared arbitrary, confiscatory and unreasonable. Mindful of the rule that one who attacks the validity of a zoning ordinance has the burden of showing, by clear and convincing evidence, that the classification is arbitrary and unreasonable as applied to his property and is without substantial relation to the public health, safety and welfare, Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962), we are of the opinion that plaintiff sustained his burden in this regard. It is axiomatic that, in considering whether a particular zoning ordinance is invalid as to a given parcel of property, no single factor will be controlling, but rather consideration will be given to all circumstances. See Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill2d 116, 188 NE2d 33 (1963); Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328 (1961).

Evidence was introduced that the portion of the subject property zoned B-l was not particularly suited to a commercial use due to its physical position, and that it could be used for commercial purposes only if the practical and economic aspects of the question were disregarded. The subject area zoned B-l measures only some 102 feet north to south, and some 223 feet east to west. There is no evidence as to the ownership of any of the property surrounding the B-l zoned portion of the subject property, except that plaintiff owns the portion zoned R-4 to the east. Unless plaintiff sacrificed a strip of the R-4 zoned property to allow access to the B-l zoned portion from Nórdica Avenue, thereby reducing the desirability of the R-4 portion for multiple-family dwelling purposes, the B-l portion is literally “landlocked.” There is also evidence that the entire subject property is best suited for multiple-family dwelling purposes due to its irregular size and the building requirements of the Village. It further appears that the trend of construction from the subject property northerly along the west side of Nórdica Avenue is multiple family dwelling.

It should be noted that most of the evidence submitted by defendant at trial, and the main thrust of its position on this appeal, concern the desirability of the entire subject property being zoned R-2, as opposed to a B-l/ R-4 classification, whereas the question now involved is whether the west portion thereof should be zoned B-l or rezoned R-4. Consequently, the evidence with respect to increase in traffic, increase in noise, garbage removal, the effect on the values of the nearby residential properties, and the like, is without much weight inasmuch as there would be no appreciable difference between the degree of those factors generated by either a B-l use or an R-4 use. Furthermore, the area would have less of a transient character and would appear less crowded if an apartment building were constructed on the entire subject property, than if several retail shops were constructed on the west portion and an apartment building constructed on the east portion thereof.

For the foregoing reasons, the decree of the Circuit Court is affirmed.

Decree affirmed.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Appellant, v. M. L. Jenkins (Impleaded), Appellee.
    Gen. No. 51,775.
    First District, Second Division.
    October 29, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph T. Garlovsky, Assistant State’s Attorneys, of counsel), for appellant.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the People, in accordance with Illinois Supreme Court Rule 604(a) (Ill Rev Stats (1967), c 110A, § 604(a)), from an order of the trial court granting the motion of the defendant for discharge pursuant to the speedy trial provisions of the Illinois Code of Criminal Procedure. See Ill Rev Stats (1965), c 38, § 103-5 (a) and (d). The common-law record and transcript of proceedings indicate the following chronology of events.

JANUARY 25, 1966 — defendant was arrested with another man for murder and was never admitted to bail.
FEBRUARY 21,1966 — defendant was indicted jointly with the other man for murder.
FEBRUARY 28, 1966 — defendant was arraigned. He declared his indigency; the public defender was appointed to represent him; a plea of not guilty was entered; and the case was assigned by the chief judge to another judge for trial. On this same day, the trial judge granted the motion of the defendant for a list of witnesses to any statements made by the defendant, said list to be furnished the defendant by the State within 10 days. By order of court, the cause was continued to March 15, 1966, with subpoenas.
MARCH 15, 1966 — by order of court, the cause was continued to March 31,1966, without subpoenas.
MARCH 31, 1966 — defendant Jenkins made this statement at the beginning of the hearing: “I am ready for trial. I would appreciate it if you would appoint me another defender.” The trial judge, after granting the motion of the codefendant for a severance, appointed private counsel for the defendant Jenkins in place of the Public Defender, and, by order of court, the cause was continued to April 20, 1966, with subpoenas.
APRIL 20, 1966 — the defendant appeared in court without counsel and the cause was continued, by order of court, to May 10, 1966, with subpoenas. On April 21, 1966, private counsel filed his written appearance for the defendant.
MAY 10, 1966 — on motion of counsel for the defendant, the trial court ordered that the Behavior Clinic of the Circuit Court of Cook County conduct a psychiatric examination of the defendant and report to the court on or before May 31, 1966, regarding the defendant’s competency and sanity. The cause was continued, by order of court, to May 31, 1966, with subpoenas.
MAY 31,1966 — report of the Behavior Clinic showing defendant to be competent was filed and the cause was continued, by order of court, to June 22, 1966, with subpoenas.
JUNE 20, 1966 — court granted the motion of the defendant to advance the cause from June 22, 1966, to the present date and after a complete hearing, the court granted the motion of the defendant for discharge pursuant to the speedy trial (120 days) provisions of the Illinois Code of Criminal Procedure and entered its order to that effect thereby discharging the defendant from custody. The People appeal from this order.

It is settled law in Illinois that the State may appeal from an order discharging the defendant from custody due to the failure of the State to accord him a speedy trial in accordance with the 120-day standard found in Ill Rev Stats (1965), c 38, § 103-5(a). The courts have stated that the granting of such an order of discharge is in substance and effect a dismissal of the indictment, an order from which the State may appeal. See People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966). The right of the State to appeal in such a case as the instant one has now been codified in Ill Rev Stats (1967), c 110A, § 604(a).

The right of every accused to receive a speedy public trial is guaranteed by art II, § 9 of the Illinois Constitution and is given concreteness and specificity by our legislature in Ill Rev Stats (1965), c 38, § 103-5 (a) and (d), which provide as follows:

(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.
(d) Every person not tried in accordance with subsections (a), ... of this Section shall be discharged from custody. . . .

It is undisputed in the instant case that the defendant was never admitted to bail and was not brought to trial within 120 days following his arrest. However, the State argues that the “delay was occasioned by the defendant” in asking for “another defender” on March 31, 1966, thereby "tolling” the running of the statutory period and causing it to run anew again from the date to which the case was continued. We agree. The common-law record indicates that on March 31, 1966, the cause was continued by order of court, but the transcript of proceedings shows that on March 31, 1966, the defendant asked the court to appoint “another defender” which the court did and continued the case to April 20, 1966, with subpoenas.

It has been decided that a reviewing court may look at both the transcript of proceedings and the common-law record so as to do complete justice to both the State and the defendant in passing upon motions for discharge based upon the speedy trial provisions of our criminal statutes. Our Supreme Court in People v. Tamborski, 415 Ill 466, 473, 114 NE2d 649, 653 (1953), has said:

“. . . If a defendant in a motion for his discharge under such statute relies upon facts dehors the record, such facts must be preserved in the record; otherwise, the court will not recognize such facts as existing. (People v. Linder, 262 Ill 223). By the same token, if the State has a defense dehors the record to such a motion, the State must present such facts and preserve them in the record, or the court cannot recognize such facts as existing.”

In the instant case the report of proceedings for June 20,1966, shows us that the State did object to the release of the defendant and did so on the grounds that the defendant had caused a delay on March 31, 1966, by asking for “another defender,” which request the court granted. The report of proceedings for March 31, 1966, shows without contradiction that the defendant, in fact, did make such a request. Furthermore, defense counsel (“another defender”), in support of his motion for discharge, marked as a defense exhibit the transcript of proceedings for the March 31, 1966 hearing. Therefore, this reviewing court is duty bound to examine both the common-law record and the transcript of proceedings for March 31, 1966, to determine if the trial court erred in granting the motion of the defendant for discharge, in that the defendant himself had caused the delay on March 31, 1966, by asking the court for an attorney other than the previously appointed public defender.

Our Supreme Court has ruled that such a request by the defendant does “toll” the constitutional right of the defendant to a speedy trial in criminal cases. It stated in People v. Stahl, 26 Ill2d 403, 405, 186 NE2d 349, 350 (1962):

“Furthermore, we note there was a delay in trial occasioned by defendant which would prevent his discharge. Defendant was arrested and committed on August 9, 1959, and although he was not tried until February 1, 1960, the record shows that upon defendant’s application the cause was continued from November 5 to November 12, 1959, to permit him to obtain other counsel. Where a defendant requests or agrees to a continuance, it is well established that the four-months’ period starts again from the date to which the case is continued, (People v. Hayes, 23 Ill2d 527; People v. Niemoth, 409 Ill 111,) and the trial here was within the limits of the new four-months’ period.”

The rule in the above cited case was followed by our court in People v. Prowse, 71 Ill App2d 465, 219 NE 2d 1 (1966), wherein we held that the defendant caused the delay by objecting to the Public Defender and demanding an attorney from the Chicago Bar Association. Hence, in the instant case, it follows that the defendant occasioned the delay in his trial on March 31, 1966, by asking the court to appoint different counsel for him. By so doing the defendant effectively contradicted his earlier statement that he was ready for trial. The court granted his motion for different counsel and continued the cause to April 20, 1966. Therefore, the defendant, by his voluntary actions, tolled his right to a speedy trial within 120 days from his arrest and the new statutory period of 120 days began to run from April 20, 1966, the date to which the trial judge continued the case after allowing the request of the defendant for different counsel. Accordingly, the defendant was not entitled to his discharge on June 20,1966.

Furthermore, another reason is presented in the record which compels us to reverse the order of the trial court discharging the defendant from custody. On May 10, 1966, defense counsel related to the court that after speaking to his client in the County Jail, he had become aware that the defendant had a previous history of mental illness. In addition, the defendant was confined in the psychiatric tier of the County Jail. Accordingly, defense counsel requested that the court order the Behavior Clinic of the Circuit Court of Cook County to conduct a psychiatric examination of the defendant and report to the court regarding its findings. The trial court granted this request and continued the case for (21) days, with subpoenas, on motion of defense counsel.

It is to be noted that Ill Rev Stats (1965), c 38, § 103-5 (a) does not specifically enumerate a request for a psychiatric examination as being one of the intervening events that would toll the running of the 120-day statutory period required for a speedy trial. Only three conditions are mentioned which would toll such a running; namely, delay occasioned by the defendant, by a competency hearing, or by an interlocutory appeal. (Parenthetically, it may be noted that in August, 1967, our Legislature amended Ill Rev Stats, c 38, § 103-5 (a) by adding, among other provisions, a statement that the running of the 120-day statutory period is tolled “by an examination for competency ordered pursuant to Section 104-2 of this Act. . . .”)

Although a psychiatric examination is not specifically mentioned in Ill Rev Stats (1965) c 38, § 103-5 (a) as being one of the events tolling the running of the statutory period, our Supreme Court in People v. Benson, 19 Ill2d 50, 166 NE2d 80 (1960) construed a predecessor statute found in Ill Rev Stats (1957) c 38, § 748 (discharge for want of prosecution) and held that this absence would not inure to the benefit of the defendant when he presented his motion for discharge. In the Benson case, the State filed a verified motion for a 60-day continuance alleging the following: the defendant had been confined in a mental institution within the recent past; it was necessary to determine whether he had the mental capacity to stand trial; and accordingly, the Behavior Clinic should conduct a psychiatric examination. These allegations under oath were not denied by the defendant nor did he demand a hearing. Consequently, the trial court granted the 60-day continuance and within this period of time the Behavior Clinic filed its report with the trial court indicating that the defendant was competent to stand trial.

On review, our Supreme Court first held that a delay to inquire into the sanity of a defendant was not included in Ill Rev Stats (1957), c 38, § 748, which gave the State the right to a 60-day continuance upon its showing of due diligence, failure to gain material evidence, but reasonable grounds to believe that such evidence could be obtained at a later date. However, the fact that a continuance for the purpose of conducting a psychiatric examination did not expressly fall within the terms of chapter 38, section 748, did not of itself entitle the defendant to a discharge. As was stated by our Supreme Court at page 55 of 19 Ill2d, page 83 of 166 NE2d:

“Considering the demands of due process, as outlined in People v. Burson, 11 Ill2d 360, it is our opinion that, in a proper case, a delay necessitated for the purpose of ascertaining a defendant’s sanity and mental capacity to be subjected to criminal prosecution is a permissible delay which does not impair or infringe upon the constitutional right to a speedy trial, or violate the statute enacted to implement the constitutional provision. However, a mere arbitrary suggestion of insanity will not suffice, and whether such ground constitutes a good cause for delay in a given case must be a matter resting within the discretion of the trial court, to be resolved from the particular facts and circumstances before it. On review, the ruling will not be disturbed unless the record shows a clear abuse of discretion. People v. Kendall, 7 Ill2d 570.”

In the instant case, defendant’s counsel himself asked for a psychiatric examination based upon an interview with his client as a result of which he learned that the defendant had had earlier mental problems and was presently confined in the psychiatric tier of the Cook County Jail. This was thus no arbitrary suggestion of insanity or lack of competency presented by defense counsel.

When confronted with this request for a continuance presented by his counsel, the defendant did not demand an immediate trial. Nor did he object to being subjected to a psychiatric examination. The record shows that the results of this examination by the Behavior Clinic were filed with the court in a written report which concluded that the defendant was competent to stand trial. The psychiatric examination, requested by defendant’s counsel, delayed the case, which had earlier been set for trial with subpoenas, from May 10, 1966, to June 22, 1966, the latter date being the date to which the case was continued by the court after receiving the report of the Behavior Clinic showing the defendant to be competent. This delay was thus occasioned by the defendant consistent with the reasoning in the Benson case. Accordingly, the defendant should not have been discharged from custody on June 20,1966.

The order of the trial court granting the motion of the defendant for discharge is reversed; the indictment is ordered to be reinstated; and the cause is remanded for further proceedings pursuant to law.

Order reversed and cause remanded with directions.

BURKE, P. J. and MCNAMARA, J., concur.