author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Anderson, Defendant-Appellant.
    Gen. No. 52,673.
    First District, Second Division.
    March 10, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, of Evanston, Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty by a jury of the crime of murder and was sentenced to a term of 35 years to 50 years in the penitentiary. On appeal he contends that certain identification testimony was improperly admitted into evidence and that he was denied the right to elicit the address of a witness for the People on cross-examination. (William Lee and Gerald Washington were indicted with Anderson for the murder. Severances were allowed and each man was tried separately.)

At approximately 2:00 p. m. on January 13, 1966, Gaetano Pampinella was shot to death during an armed robbery of a wholesale grocery store located at 901 West Randolph Street in Chicago. The two robbers were armed with a pistol and a sawed-off shotgun, and escaped the scene in an automobile driven by a third man. A week later Anderson was arrested and charged with participation in the crimes.

Defendant filed a pretrial motion to suppress the identification testimony of two witnesses for the People, Chicago Police Officer Neil Francis who observed the assailants leaving the premises after the incident, and Fred Graziano who was the owner of and present in the store at the time of the incident.

At the hearing on the motion to suppress the testimony, defendant testified that he was arrested on January 20, 1966, as he and two companions were leaving a pool hall on West Madison Street in Chicago. He testified that they were taken to the Maxwell Street police station. He was placed in an interrogation room and threatened, beaten, tortured and interrogated by police officers for about fourteen hours. He stated that he was not advised of his constitutional rights, nor was he allowed to use the telephone. Defendant testified that about two and one-half hours after he was taken into custody, Officer Francis entered the interrogation room and conversed with him for fifteen to twenty minutes.

Defendant further testified that he was shown in a lineup during the fourteen-hour period and that there were three other men in the lineup beside himself, all of whom were darker complexioned and taller than the defendant. After the lineup had been concluded, an officer informed defendant that he had been identified in connection with the murder, after which the police again beat him.

On cross-examination, defendant testified that the only other time he was shown in anything approaching a lineup was when a man was brought into the interrogation room. The man was unable to identify the defendant and was cursed by a police officer in attendance, who stated that the man was mistaken because defendant was the guilty party. Defendant also testified that he had an infection on his right wrist at the time of his arrest which resulted from a burn. He further stated that Officer Francis inspected the wound at the time they conversed in the interrogation room and stated to another officer present that defendant had not been shot. (This statement apparently related to the theory of the police that defendant had been struck by one of the bullets fired by Officer Francis at the automobile fleeing the murder scene.) Defendant further stated that during the entire fourteen-hour interrogation period he was not questioned about any matter other than the robbery and murder in question.

Officer James Burns testified that he and his partner arrested the defendant on January 20, 1966, pursuant to a communication from another branch of the police department. Defendant was transported to the police station where he was placed in an interrogation room. The officer testified that Officer Francis arrived at the station about 6:30 p. m. that day and conversed with the defendant in the interrogation room; the officer testified that Officer Francis did not interrogate defendant, but merely spoke with him. Officer Burns testified that Officer Francis asked defendant, “Do you remember me?” to which the defendant replied, “No.” Officer Francis then looked at the defendant’s infected wrist, but did not state that the defendant had not been shot.

Officer Burns further testified that defendant was then placed in a five-man lineup which was viewed by Officer Francis. A second lineup was conducted about two hours later which included the defendant and the same four men who were in the first lineup. The second lineup was viewed by James and Fred Graziano, both of whom were present in the store at the time of the incident, and both of whom identified defendant as one of the participants therein. The second lineup was also viewed by victims of other robberies; one of the parties viewing the lineup failed to identify the defendant, but that party had no relationship to the instant matter.

With respect to the makeup of the two lineups, Officer Burns testified that the men who were placed in the lineup with the defendant ranged in height from five “feet, ten inches, to six feet, one or two inches. Defendant’s height was about five feet, ten inches. One of the men in the lineup was described as “light complected,” another as “very dark” and defendant as “dark.” Defendant and another of the men wore mustaches.

Officer Neil Francis testified that he spoke to the defendant in the interrogation room just prior to identifying him at the lineup later that same day. The officer testified that he asked defendant how he injured his wrist, that the defendant replied that he had burned it, and that the officer turned to Officer Burns and laughed.

Two other police officers in attendance after defendant was brought to the station testified that he was placed in three lineups on January 20th, two relating to the instant matter and one unrelated. All of the officers who took part in the interrogation of the defendant denied beating or intimidating him in any manner.

At trial the evidence for the People was that on the afternoon in question, two men invaded the store belonging to Fred Graziano, and by means of a shotgun fired pellets into the back of Gaetano Pampinella, causing his death, and fled with over $300 in cash. Fred Graziano identified the defendant as the shorter of the two men, stating that he was “the man who had the handgun.”

As the assailants were departing the store after the robbery and shooting, they encountered Officer Francis at the front door, who was just about to enter the premises. The officer testified that he had his hand on the outer doorknob at the same time that defendant had his on the inner doorknob. The officer stated that, “I proceeded to open the door and as I opened up the door there was a short . . . fellow. He looked at me and I looked at him and he glanced over to his right and looked up and I saw a tall . . . fellow. They both looked at me and they proceeded on by me and as I walked in the door closed. . . .” The officer identified the defendant as the smaller of the two men. The officer then went into the store and found that a crime had been committed. He returned to the street, saw the taller man enter the passenger side of an automobile driven by a third man, and fired three shots at the automobile, striking the rear window. Officer Francis further testified that the day was cold and clear, and that he stood 12 to 18 inches from the defendant when he entered the store.

A truck driver testified that he observed a collision near Peoria and Adams Streets between an automobile with a hole in the rear window and a parked vehicle. The witness testified that three men abandoned the vehicle and ran on foot. The sawed-off shotgun used in the robbery and murder was later found in the abandoned automobile.

Defendant raised the defense of alibi. He testified that he was at home with his mother and his sister-in-law at the time of the incident; the mother and sister-in-law verified this from the witness stand. Defendant further testified that he later visited his girl friend and spent the rest of the afternoon with her and her father.

One of the police officers who investigated the incident was called as a defense witness and testified that he obtained a description of the smaller robber from persons at the scene. It showed the suspect to have been five feet, seven inches in height and weighing one hundred forty-five pounds.

Defendant first contends that Officer Francis’ testimony identifying defendant as one of the robbers should not have been admitted into evidence for the reason that his pretrial identification of the defendant at the lineup was tainted by the improper confrontation between the two men in the interrogation room immediately preceding the lineup. He argues that, absent emergency situations, such one-man confrontations are in themselves violations of due process, citing Stovall v. Denno, 388 US 293, and United States v. Gilmore, 398 F2d 679.

The Illinois Supreme Court has held, since the decision in the Stovall case, that an in-court identification may be admitted into evidence where it is shown to have had an origin independent of a possibly tainted pretrial identification. People v. Nelson, 40 Ill2d 146, 238 NE2d 378. The ability of a witness to identify a suspect cannot be said to have been erased from his mind merely because he improperly saw the suspect prior to the lineup. People v. Cook, 113 Ill App2d 231, 252 NE2d 29.

The record reveals that Officer Francis’ in-court identification of the defendant had an origin independent of the pretrial identification. He testified that he observed the defendant face to face, from a distance of 12 to 18 inches, as defendant and his confederate were leaving the Graziano store. The time was early afternoon and the day was clear. Finally, the eyewitness was a police officer with almost 13 years of service on the force.

(It should be noted that William Lee, who was indicted with defendant and Washington on the murder charge, was found guilty and was sentenced to death. The conviction in that case was appealed directly to the Illinois Supreme Court, Lee contending, among other things, that improper pretrial confrontations between himself and three witnesses for the People rendered inadmissible their in-court identifications of him as one of the participants in the occurrence. It appears that Officer Francis there, as here, had a conversation with Lee in a cell shortly after Lee’s arrest and prior to trial. It also appears that James and Fred Graziano were notified by the police that a suspect was in custody and that the Grazianos should appear at the coroner’s inquest to identify him; immediately prior to the inquest, Lee was brought into their presence by the officers, handcuffed to defendant Anderson, whom the Grazianos had previously identified at the January 20th lineup. The evidence at trial as to the existence of an independent origin of the Grazianos’ in-court identifications was held to be inadequate, and the Supreme Court vacated the judgment against Lee, pending a hearing by the trial court at which the People were allowed the opportunity to establish by clear and convincing evidence that “each witness’ identification had an origin independent of the unnecessarily suggestive confrontation at the coroner’s inquest.” People v. Lee, 44 Ill2d 161, 254 NE2d 469, decided December 1969, at page 6 of opinion. It is significant that, although the Supreme Court noted that Lee contended that Officer Francis’ in-court identification was inadmissible, as above stated, the Court addressed itself solely to the contention regarding the Grazianos and the confrontation before the coroner’s inquest.)

Defendant next contends that the lineup at which he was identified by James and Fred Graziano was “unnecessarily suggestive and conducive to irreparable mistaken identification” and that the trial court consequently erred in denying his motion to suppress the identification testimony of Graziano. The trial court, at the hearing on the motion, was to consider the “totality of the circumstances” surrounding the confrontation. (See Stovall v. Denno, 388 US 293.) There was a conflict in the evidence as to the makeup of and the circumstances surrounding the lineup which was a matter of credibility for the trier of fact.

The People’s evidence adduced at the hearing was that the defendant was placed in the lineup with four other male adults. Defendant was as tall as one of the other men in the lineup, and his complexion was within the range of the other men’s complexions. Defendant’s contention that he was the only man in the lineup with a mustache is contradicted not only by the People’s evidence, but also by his own testimony on rebuttal, that one of his two companions, with whom he was taken into custody near the pool hall and who was also shown in the lineup with defendant, also wore a mustache.

The fact that there were police officers in the room where the lineup was conducted in no way suggested that the defendant was the suspect to be identified in this matter; defendant himself testified that the handcuffs were removed before he was brought into the lineup room and that the other men in the lineup were brought into the lineup room from other rooms. Finally, the fact that defendant was not represented by counsel at the time he appeared in the lineup is not, of itself, a violation of due process. The lineup in question was conducted prior to the effective date of United States v. Wade, 388 US 218, and Gilbert v. California, 388 US 263, nor had an indictment been returned against the defendant. (See Stovall v. Denno, supra.) The trial court did not commit error in denying the motion to suppress the identification testimony.

The final point raised by defendant is that he was denied the right to elicit the address of Fred Graziano on cross-examination.

When Fred Graziano was asked his address on direct examination, he stated that he would rather not give it. Defense counsel thereafter on cross-examination, requested the address and the witness again stated that he would rather not give it. After a side-bar conference between the court and counsel, an objection to defense counsel’s request was sustained.

Defendant relies upon such cases as Smith v. Illinois, 390 US 129, and Garafolo v. United States, 385 F2d 200, in support of his position. Those cases involve traffic in narcotics and deal with the latitude allowed in the cross-examination of police narcotics informers. Those decisions state that where an informer’s credibility is in question, the defense should be allowed to elicit his name and address, for the reason that it would “open countless avenues of in-court examination and out-of-court investigation” in exposing falsehood. (See, e. g., Smith v. Illinois, 390 US 129,131.)

In the instant case, however, defendant was supplied with both the witness’ employment address and home address prior to trial, on the list of prospective People’s witnesses. Further, the addresses were read to the jury without objection by the defendant. No restriction was placed on defendant’s cross-examination or out-of-court investigation opportunities by the trial court’s ruling. It clearly appears that the defense’s question was intended only to annoy the witness. See Alford v. United States, 282 US 687, 694.

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J., and LYONS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Kirby (Otherwise Called Kirby Thomas) (Impleaded), Defendant-Appellant.
    Gen. No. 53,610.
    First District, Second Division.
    March 10, 1970.

      Michael Seng, Jenner & Block, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant was convicted, following a jury trial, of the offense of robbery in violation of Ill Rev Stats, c 38, § 18-1 (1967). Judgment was entered on the verdict and defendant sentenced to a term of not less than five nor more than twelve years in the Illinois State Penitentiary. In this appeal the defendant contends that the trial court erred in denying his motions to suppress physical evidence and identification testimony.

At the hearing on the motion to suppress physical evidence, Kirby and his codefendant testified that they were arrested in the vicinity of 2400 West Madison Street in the City of Chicago, Illinois, on February 22, 1968. The defendant further testified that after police stopped him they searched his person, recovering his personal identification and certain traveler’s checks bearing the name Willie Shard. The officers did not inform him that he resembled a man wanted by the police for confidence game, at the time of his arrest.

The arresting officers testified for the State. Officer Baggio Panepinto testified that he and his partner were riding in a squad car in the vicinity of 2200 West Madison when he noticed that the defendant Kirby, then walking, resembled one Alphonso Hampton, who was wanted for con game according to a police department bulletin which bore Hampton’s picture and description, and which was in the squad car.

Officer Panepinto further testified that the defendant and his companion were stopped and asked to identify themselves. While Kirby was looking for identification in his wallet, he, Panepinto, noticed certain traveler’s checks bearing the name “Willie” in the wallet. He asked the defendant who they belonged to and he responded that they were play money. The officer then asked to see the checks. Kirby handed them to Pane-pinto who was then able to observe the complete name which the checks bore, “Willie Shard.” When asked who Willie Shard was, Kirby stated that he won the checks in a crap game. On cross-examination the officer testified that Alphonso Hampton was 5' 2" in height and defendant Kirby 5' 5" in height. At the time defendant was stopped, the officer did not know that Willie Shard had been the victim of a robbery.

Officer James Rizzi’s testimony, insofar as it was relevant to the present defendant, corroborated that of Officer Panepinto.

At the close of this testimony the trial court denied defendant’s motion to suppress the traveler’s checks and a Social Security Card later taken from defendant and also bearing the name “Willie Shard.”

At the hearing on defendant’s motion to suppress the identification testimony of the victim, Kirby and his codefendant each testified that he was not advised of his right to have counsel present prior to and at the time of his identification. The State did not crpss-examine, nor did they present any evidence. Defendant’s motion was denied.

The testimony at trial with respect to Shard’s identification of the defendant at the police station was as follows:

WILLIE SHARD

On February 22, 1968, two days after he was robbed and one day after he reported the robbery to the police, he was requested, by phone, to come to the police station. Two police officers picked him up and brought him to the station. The officers who picked him up asked if he was robbed and if he could identify the offenders, and he responded in the affirmative.

When he walked into the police station the defendant and codefendant were seated at a desk. A police officer asked him if he recognized his assailants and he identified the defendant, along with his codefendant.

OFFICER JAMES RIZZI

When Mr. Shard arrived at the station, two hours after the defendant had been brought in, the defendants were seated in a large room. Shard walked into the room and stated that Kirby and his codefendant were the men who had robbed him. The men identified were then asked to stand and Shard reaffirmed the identification. To the best of his knowledge, Mr. Shard was not prompted or coached prior to entering the room.

RALPH BEAN (codefendant)

He and defendant Kirby were seated at a table with police officers when Mr. Shard arrived. He walked in and stood by the door until approached by another man, who the witness assumed was a police officer. The officer brought Mr. Shard toward the table where he and Kirby were seated. As they approached the table Shard said something to the effect that he did not know or could not identify them, and one of the police officers said that the witness and Kirby must be the ones, since they had Shard’s property.

This last statement was objected to as hearsay and the objection was sustained.

Defendant first contends that the trial court erred in denying his motion to suppress physical evidence. He argues that his arrest was without probable cause and therefore, the physical evidence taken from his person should have been suppressed as the product of an unlawful arrest. While the defendant properly states the proposition of law, the testimony of Officer Panepinto, which the trial court was at liberty to, and apparently did believe, clearly presents a factual situation in which the rule is not applicable. The officer testified that he noticed the traveler’s checks in defendant’s wallet while defendant was looking for identification. Further, the officer testified that defendant surrendered the checks to him upon request. Clearly the checks were not recovered by the officer as the result of a search. Rather, their discovery falls within the purview of the plain view doctrine of People v. Davis, 33 Ill2d 134, 210 NE2d 530 (1965).

Defendant is also correct in his assertion that the mere possession of the goods of another is not sufficient to establish probable cause for arrest. Here, however, an additional element is present. Defendant’s possession, coupled with his having given conflicting explanations of that possession, is sufficient to establish probable cause for arrest. The Social Security Card taken from defendant was not recovered until after probable cause for the arrest existed.

This determination, that defendant’s arrest was based upon probable cause, is also determinative of his second contention, that the identification testimony should have been suppressed as the product of an unlawful arrest.

Defendant next contends that the trial court erred in denying his motion to suppress identification testimony in that he was not advised of his right to have counsel present at the showup, relying on U. S. v. Wade, 388 US 218, 87 S Ct 1926 (1967) and Gilbert v. California, 388 US 263, 87 S Ct 1951 (1967). In Wade, the defendant was placed in a police lineup subsequent to his having been indicted and prior to trial without notice to, and in the absence of, his court appointed counsel. In finding the procedure improper the court held that a post-indictment lineup was a critical stage of the proceedings against the accused and therefore the Sixth Amendment guarantee of assistance of counsel applied thereto.

In Gilbert, the accused was also placed in a post-indictment lineup without notice to defense counsel. All the witnesses who identified Gilbert at trial testified that they had also identified him at the lineup. The court, following Wade, held: (1) the lineup was held in violation of Gilbert’s Sixth Amendment rights and therefore testimony with respect thereto was not admissible against him; and (2) it was error to admit into evidence the in-court identification of the accused without first determining that such identification was not tainted by the illegal lineup, but was of independent origin.

People v. Palmer, 41 Ill2d 571, 244 NE2d 173 (1969) determines the issue adversely to defendant. There the Supreme Court, in interpreting the language of Wade, Gilbert, and the subsequent case of Simmons v. U. S., 390 US 377, 88 S Ct 967 (1968), held those decisions to apply only to post-indictment confrontations. Here the record clearly shows the showup to have taken place prior to defendant’s indictment.

Defendant’s third contention in support of his allegation that testimony regarding his showup identification should have been suppressed constitutes a direct attack upon the use of a showup as an identification procedure. He argues that the showup is inherently suggestive in nature and therefore where no compelling reason for securing an immediate identification such as was found to exist in Stovall v. Denno, 388 US 293, 87 S Ct 1967 (1967) exists, a lineup should always be held. We are aware of no such requirement. On the contrary, the Supreme Court has noted that while the showup has been observed to involve a degree of suggestion, not every exhibition of an accused by means of a showup, where a lineup is possible, constitutes a denial of due process. People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152 (1969).

The defendant also contends that the circumstances surrounding his identification were so suggestive as to deny him due process of law. In support of this argument defendant again points out that a showup, rather than a lineup, procedure was used, which allowed the identification witness to view him while he was seated between two police officers. He further calls attention to the fact that Mr. Shard knew the purpose for his trip to the police station, to make an identification.

There is no doubt that an identification procedure may be so suggestive in a given case as to deny the accused due process of law. But when called upon to determine whether due process has been denied a particular individual, courts must consider the totality of the circumstances surrounding the identification, not merely those which tend to support defendant’s theory. Stovall v. Denno, 388 US 293, 87 S Ct 1967 (1967). Here the victim was attacked during the daylight hours and had an excellent opportunity, according to his own testimony, to observe the assailants before, during, and after the assault. In addition, he was positive in his identification of defendant as one of the offenders. In this same regard, Officer Panepinto testified that Mr. Shard identified the defendant immediately upon sight. In view of the totality of the circumstances surrounding the identification, we do not believe that defendant was denied due process of law.

Finally, the defendant has contended that he was denied effective assistance of counsel at the hearing on his motion to suppress the identification testimony. Defendant points out that although the written motion to suppress submitted to the court contained two points, the first relating to Sixth Amendment rights and the second to due process considerations, defense counsel elicited testimony only regarding the first, right to counsel. This allegation of denial of effective assistance of counsel is directed only to the hearing on motion to suppress identification testimony. It appears to be an effort by defendant to save, for purposes of appeal, a point not properly presented to the trial court. We deem this contention to be moot in view of our having considered defendant’s due process argument.

Having found each of the contentions of defendant to be without merit, we affirm the judgment of the Circuit Court.

Judgment affirmed.

MeCORMICK P. J., and BURKE, J., concur.


author: PRESIDING JUSTICE McCORMICK.

text:
    James Terry, Plaintiff-Appellee, v. Rebecca Terry, Defendant-Appellant.
    Gen. No. 53,293.
    First District, Second Division.
    March 10, 1970.
    Phillip E. Freed, of Chicago (Harry G. Fins, of counsel), for appellant; Aaron H. Payne, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: MR. JUSTICE LYONS BURKE, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ralph R. Bean (Impleaded), Defendant-Appellant.
    Gen. No. 53,611.
    First District, Second Division.
    March 10, 1970.
    Rehearing denied April 8, 1970.
    BURKE, J., dissenting.
    Michael Seng, Jenner & Block, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendant was convicted, following a jury trial, of the offense of robbery (Ill Rev Stats (1967), c 38, § 18-1). Judgment was entered on the verdict and he was sentenced to a term of not less than ten nor more than fifteen years in the Illinois State Penitentiary.

In this appeal defendant presents several theories in support of his contention that the trial court erred in denying his motion to suppress identification testimony. We consider only the first theory advanced, that the identification was the product of an unlawful arrest, as we deem it to be determinative of the issue raised.

Defendant presented motions to suppress physical evidence and identification testimony. At the hearing on the motions the following testimony relevant to the issue here presented was heard.

RALPH BEAN

He was arrested in the vicinity of 2200 West Madison Street in the City of Chicago on February 22, 1968, while in the company of one Thomas Kirby. The arresting officers did not show him a warrant for his arrest and he did not commit a criminal offense in the presence of the officers. One of the officers asked him for some identification and when he could produce none the officer proceeded to search his person.

OFFICER JAMES RIZZI

Defendant and his companion were stopped because the companion resembled a man wanted by the police. Officer Baggio Panepinto, witness’ partner, confronted defendant’s companion and the witness confronted Bean. When Bean could produce no identification he was searched and certain items taken from him, including a medical prescription bearing the name “Willie Shard.” Defendant’s companion was also found to possess property apparently the property of Willie Shard.

Defendant and his companion were then arrested and taken to the police station where it was learned that the items recovered from them had been taken from Willie Shard in a robbery two days earlier. Mr. Shard was brought to the station where he identified Kirby and the defendant as the robbers.

At the close of testimony, defendant’s motion to suppress physical evidence taken from him was allowed and the motion to suppress identification denied.

Defendant contends that his identification by Mr. Shard, as one of the perpetrators of the offense charged, was the product of an unlawful detention and thus was not properly admissible in evidence against him, relying on Davis v. Mississippi, 394 US 721, 89 S Ct 1394 (1969) and People v. Albea, 2 Ill2d 317, 118 NE2d 277 (1954).

In Davis, police investigating a rape unlawfully detained the defendant. During the course of his detention he was fingerprinted. The prints taken from him were found to match those recovered at the scene of the offense and the similarity between them was the sole evidence presented at trial linking defendant to the crime. The Supreme Court held that prints so taken should not have been admitted into evidence and reversed the conviction, stating that the ruling of Mapp v. Ohio, 367 US 643, 81 S Ct 1684 (1961), that all evidence attained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State court, applied to investigatory as well as accusatory stages of procedure.

In Albea, arrested along with defendant in the defendant’s apartment was the State’s principal witness. The trial court held defendant’s arrest and the search of his apartment to be in violation of Constitutional mandates and suppressed all physical evidence, including that recovered from the person of the State’s witness, as well as testimony relating to what transpired following police entry into the apartment. The Supreme Court reversed the conviction, agreeing with the defendant’s contention that all evidence secured by reason of the unlawful search should have been suppressed, including the testimony of a witness discovered as a result of that search.

In the present case the State has conceded the invalidity of the search and arrest of defendant, but argues that testimony regarding his identification by the victim was properly admitted as it was obtained independently of the unlawful search and arrest. We cannot agree. The mere passage of time between the search and arrest and the identification cannot, under these circumstances, be deemed to render the identification of independent origin. The exhibition of defendant to the victim was a direct consequence of the admittedly unlawful detention of his person. Indeed, the identification would not otherwise have occurred.

We hold the identification of defendant to be a product of the unlawful seizure of his person and consequently all testimony relating thereto improperly admitted into evidence against him. Further, all subsequent identifications of defendant by the victim, including in-court identification, are directly traceable to the unlawful detention of defendant. It follows that no reason exists to remand the cause to the trial court under the doctrine of Wong Sun v. United States, 371 US 471, 83 S Ct 407 (1963). The judgment of the Circuit Court is reversed.

Judgment reversed.

McCORMICK, P. J., concurs.

BURKE, J.,

dissenting:

On the hearing of the motion to suppress the evidence, Ralph R. Bean testified that on February 22, 1968, he was with Kirby when two policemen stopped and questioned them. Bean gave one of the officers his identification. They did not have a warrant for his arrest. The identification he tendered the police officers was that of Willie Shard. His name is not Willie Shard. A search of the person of Kirby revealed traveler’s checks and personal identification in the name of Willie Shard. When Willie Shard arrived at the police station in response to a call from the police, he immediately recognized Kirby and Bean as the men who robbed him. Bean testified that he was with Kirby when they found the traveler’s checks in an alley. In the trial Shard again identified the defendants as the men who robbed him.

Willie Shard, the victim, positively identified Bean as a perpetrator of the crime. His identification was independent of the arrest of Bean.

There was no lineup. The opinion in United States v. Wade, 388 US 218, does not hold that a lineup must be held. No lineup was held because Shard upon entering the station house immediately identified Kirby and Bean as the perpetrators of the crime.

The record does not support defendant’s position that Shard’s identification was induced by the police and sustains the People’s assertion that Shard made his identification without any prompting or suggestion by a policeman. It would have been an inept gesture on behalf of the police to hold a lineup after the victim of the robbery, immediately upon entering the station house, identified the two defendants as the perpetrators. The record is devoid of any evidence that anyone prompted, suggested, intimated or forced the identification by the victim of these defendants. The jurors had before them the positive identification by Shard and the traveler’s checks and personal identification card, of Shard, which furnished strong corroboration of his identification. The jury was given all the pertinent facts surrounding the identification. I am convinced that the defendant was proved guilty beyond a reasonable doubt. The judgment should be affirmed.


author: MR. JUSTICE BURKE McCORMICK, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Benjamin Wheeler, Defendant-Appellant.
    Gen. No. 53,691.
    First District, Second Division.
    March 10, 1970.
    McCORMICK, P. J., dissenting.
    Robert H. Aronson, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Joseph Romano, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

The trial of Benjamin Wheeler and John McCaskill on a charge of aggravated battery resulted in a verdict of acquittal of McCaskill and conviction of Wheeler. Wheeler appeals from the judgment sentencing him to serve a term in the penitentiary of seven to ten years.

On April 2, 1968, at about 10:00 p. m., Emmett Boyd, an off-duty police officer, was in the vicinity of 58th Street and Calumet Avenue in Chicago. While walking north on Calumet Avenue he saw a man looking out from a gangway. He testified that the man is now known to him as Sylvester Wheeler. When he identified himself to Wheeler as a police officer, Wheeler turned and ran into the gangway. Officer Boyd approached the gangway and at approximately ten feet from the entrance he noticed another man standing just inside. He testified that this second man was the defendant, Benjamin Wheeler. Officer Boyd was able to see that the defendant was wearing a long dark coat, tight dark trousers, and that he was about 6' 3" tall. He stated that Sylvester Wheeler was wearing black trousers and a gray sweater, and that he was about 6' 1" tall. As Officer Boyd approached the gangway the defendant backed into it about six feet, and although his figure was not distinct, the witness stated that he never lost sight of him, that his coat and right leg remained visible. He saw no weapon in the defendant’s hand. A shot from the gangway struck Officer Boyd in the right side of his head, which caused the loss of sight in his right eye after fifty pellets were removed.

On cross-examination Officer Boyd explained that another police officer had told him there was a shooting somewhere between 58th and 59th on Calumet Avenue. He then saw Sylvester Wheeler standing in the gangway, and the events as related occurred. Between 10:15 and 10:30 p. m. that same evening, about half a block from the scene of the shooting of Officer Boyd, other police officers saw two men “duck” into a basement. One of them escaped, but John McCaskill was apprehended, and in his possession was a shotgun with one spent round in the chamber. He was wearing a coat that was too large for him which, after receiving his Miranda warnings, he said he had obtained from a friend.

At a hearing on a pretrial motion to suppress the statement made by McCaskill, Officer Kodatt testified that on the evening in question, at about 11:00 p. m., in the lobby of the emergency room at Billings Hospital, MeCaskill told him he had obtained the shotgun from “Bull” whose full name was Benjamin Wheeler, and that Wheeler lived at 5735 South Calumet Avenue. Officer Gallagher testified that when he was questioning MeCas-Mll at the police station another officer entered the room and asked Gallagher where he got the shotgun. When Officer Gallagher said he had found it on MeCaskill, the latter said, “It doesn’t belong to me, it belongs to Bull, he told me to pick it up and make it.” Officer Molsby testified that when MeCaskill was being arrested he fell, and that as he was falling the shotgun dropped from under Ms coat. Officer Molsby was present at the time MeCaskill told Officer Kodatt the gun was Bull’s.

The trial court denied the motion to suppress the statement. At the trial the testimony was substantially the same as at the hearing on the motion.

Defendant maintains that the court committed reversible error in not ordering a severance for the trial of Benjamin Wheeler. About a month before the trial the State informed the court and the attorney for the defendant that McCaskill had made a statement which incriminated the defendant. McCaskill was represented by the Public Defender and Wheeler by a lawyer chosen by Mm. Notwithstanding the incriminating statement, the attorney for the defendant did not request a severance. The position of the defendant is that it was the duty of the trial judge, sua sponte, to have ordered a severance. In People v. Scott, 100 Ill App2d 473, 241 NE2d 579, the court held that a limiting instruction was not sufficient to prevent the prejudice which would result from the admission of the statement. See Bruton v. United States, 391 US 123. We cannot perceive how the defendant could benefit by the decision of Ms attorney not to move for a severance.

The admissions of McCaskill presented by the testimony of the police officers, were harmful to the defendant. An analysis of the record convinces us that Benjamin Wheeler was seriously prejudiced by the failure to order a severance.

Therefore, the judgment is reversed and the cause remanded with directions for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded with directions.

LYONS, J., concurs.

McCORMICK, P. J.,

dissents.

I must respectfully dissent from the majority opinion, although I agree with the view that the errors committed in the trial of the case must result in a reversal.

Without the admissions of McCaskill, Benjamin Wheeler should have been acquitted. At no time during the course of the trial did Officer Boyd testify that it was Benjamin Wheeler who shot him. He did say that both Sylvester and Benjamin were in the gangway and that a shot came from there. He testified that he never saw the weapon which was used against him.

From the record we have no way of knowing whether it was Benjamin or Sylvester Wheeler who fired the shot. When we consider Officer Boyd’s testimony that the gangway was unlit, and that as Benjamin backed into it his figure became almost invisible, it is possibe that Sylvester may have been just behind Benjamin and could have been the one holding and using the weapon. Outside of the admission of McCaskill’s statement the State has failed to prove beyond a reasonable doubt that it was Benjamin Wheeler who fired the shot.

In People v. Scott, 100 Ill App2d 473, 241 NE2d 579, the court reversed and remanded the case because of reversible errors committed during the trial. However, in that case there was testimony outside the admissions which could have been sufficient to convict Scott. In the record in the case before us there is no showing that if it were retried there would be any evidence in the case indicating that the shot was fired by Benjamin Wheeler, or that there could be any verdict except not guilty. Under those circumstances I believe the judgment should be reversed and not remanded.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Thigpen, Defendant-Appellant.
    Gen. No. 53,718.
    First District, Second Division.
    March 10, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    Patricia Brown, Plaintiff-Appellant, v. Vincent Schoenberg, Defendant-Appellee.
    Gen. No. 53,735.
    First District, Second Division.
    March 10, 1970.
    Arthur H. Grant, of Chicago, for appellant.
    Angelo Ruggiero, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This is an appeal from the dismissal of a complaint which sought to establish defendant’s paternity as the father of a child bom to plaintiff on August 30, 1966.

On July 26, 1966, prior to the birth of the child, a complaint was filed by the State’s Attorney of Cook County on behalf of plaintiff to establish the paternity of the defendant as the father of plaintiff’s then unborn child. Hearing on the matter was continued from time to time, and the complaint was eventually dismissed on December 1,1966, for want of prosecution.

On May 26, 1967, plaintiff filed, in her own name, a second complaint against the defendant, alleging the same grounds contained in the first complaint. On July 18, 1967, defendant filed a motion to dismiss the second complaint for the reasons that it was based upon the same grounds as those alleged in the first complaint and that Illinois Supreme Court Rule 273 barred the filing of the second complaint because the first suit had been dismissed for want of prosecution which was an adjudication of the matter on its merits. Plaintiff filed a motion to strike the motion to dismiss, which motion denied the applicability of Rule 273 to the case, and which further alleged that a dismissal for want of prosecution did not constitute an involuntary dismissal of the first action. On July 26, 1967, plaintiff’s motion to strike was denied, defendant’s motion to dismiss was allowed, and the second suit was dismissed.

Plaintiff thereafter filed a motion requesting the trial court to reconsider its rulings on the two prior motions, alleging that the court was in error in holding that the dismissal of the first complaint for want of prosecution constituted an adjudication of the merits of the case and that the court also erred in holding that Rule 273 applied to the filing of the second complaint. After hearings, the motion to reconsider was denied and the trial court permitted its original order dismissing the second complaint to stand.

On or about November 16, 1967, within the time prescribed by rule, plaintiff filed her notice of appeal to this court from the order dismissing the second complaint. On motion of defendant, that appeal was dismissed on June 6, 1968, for errors on plaintiff’s part whereby she failed to perfect the appeal. A subsequent petition for rehearing of the dismissal of the appeal was denied by this court. Plaintiff did not file a petition for leave to appeal to the Supreme Court.

On August 30, 1968, plaintiff filed a third complaint against the defendant, again alleging the same grounds as alleged in the first two complaints. Defendant once again filed a motion to dismiss that complaint, on the grounds that the dismissal of the second complaint constituted a dismissal of that case on the basis of res judicata, thereby barring a subsequent complaint between the parties based upon the subject matter. The motion to dismiss the third complaint was allowed, the third suit was dismissed, and this appeal followed.

We are of the opinion that the dismissal of the second complaint, together with plaintiff’s failure to test the correctness of that dismissal order by means of an effective appeal, operate as a bar to the filing of any subsequent suit in this matter.

The original complaint was dismissed for want of prosecution on December 1, 1966. The second complaint, filed on May 26, 1967, was thereafter dismissed on the ground that, as plaintiff here concedes, the trial court was of the opinion that Rule 273 of the Supreme Court rendered the dismissal of the first complaint an adjudication on its merits, which in turn was res judicata as to the filing of the second complaint. The dismissal of the second complaint, whether properly or improperly ordered by the trial court, was consequently an adjudication on the question of whether the dismissal of the first complaint barred the filing of a subsequent complaint on the same subject. The correctness of the ruling on the motion to dismiss the second complaint could have been tested only by means of an appeal from that ruling, which plaintiff did attempt to prosecute.

However, for procedural errors, the appeal taken from the second dismissal order was dismissed. A petition for rehearing was subsequently denied by this court, and plaintiff admittedly made no application to the Supreme Court for leave to appeal. Consequently, the order of the trial court dismissing the second complaint, whether erroneous or not, stands as res judicata as to any suit subsequently filed between the parties with respect to the subject matter. (See City of Elmhurst v. Kegerreis, 392 Ill 195, 203, 64 NE2d 450; see also People ex rel. McAllister v. East, 409 Ill 379, 383, 100 NE2d 746.) The trial court properly dismissed the third complaint filed by plaintiff.

Plaintiff cites the case of Casillas v. Rosengren, 86 Ill App2d 139, 229 NE2d 141, as standing for the proposition that a dismissal for want of prosecution does not bar a refiling of the suit on the same issues and between the same parties. In the light of the facts of this case, the Casillas case is inapposite. The question here is not whether Rule 273 does or does not permit the refiling of the case which was dismissed for want of prosecution.

In Casillas, plaintiff filed her personal injury action shortly after the injury occurred. No action was taken by plaintiff in the matter for about two years, and, pursuant to the rules of the particular circuit court, the case was dismissed for want of prosecution with leave to refile the case within 90 days. Almost two years after the dismissal, plaintiff filed a petition under section 72 of the Civil Practice Act seeking to reopen the case, alleging certain reasons for her delay in prosecuting the matter initially. The petition was denied.

One month after the denial of the section 72 petition, plaintiff filed a second complaint, alleging the same grounds alleged in the first complaint, which was subsequently dismissed on the grounds that the denial of the section 72 petition “was determinative” of the issues in the case and that the matter was consequently res judicata.

The dismissal of the second complaint was appealed and the Appellate Court held that the plaintiff had a right to refile the case, and that the denial of the section 72 petition was not determinative of all the issues in the case, but only those issues raised by the petition.

The posture of the Casillas case, as it reached the Appellate Court, was identical to the posture of the instant matter at the time of the entry of the order dismissing plaintiff’s second complaint and its appeal to this court the first time. As was successfully accomplished in the Casillas case, plaintiff here could have tested the correctness of the trial court’s ruling on the motion to dismiss the second complaint to determine if its filing was barred by reason that Rule 273 rendered the dismissal of the first complaint res judicata as to the filing of a subsequent suit between the parties on the same subject matter. However, unlike Casillas, plaintiff here failed to perfect the appeal and the order of the trial court dismissing the second complaint on the grounds that its filing was barred by the dismissal of the first complaint remains in full force and effect, thereby effectively barring the filing of any subsequent suit in this matter.

The question of whether Rule 273 has a retroactive effect has been answered by this court in Mages Sports v. Winston Park Shopping Center, 112 Ill App2d 409, 251 NE2d 334. Nevertheless, that question does not arise in the instant case since this is not the appeal taken from the dismissal of the second complaint, wherein such matter could have been tested.

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and LYONS, J., concur.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Lee Alexander, Defendant-Appellant.
    Gen. No. 51,611.
    First District, Fourth Division.
    March 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This was a prosecution for murder. A jury convicted defendant; the court sentenced him to serve 50 to 100 years. He appeals, contending that (1), the trial court erred in refusing to give the jury an instruction on involuntary manslaughter; and (2), the sentence the trial court imposed is excessive and should be reduced.

The record reflects substantial agreement concerning the facts. At about 9:30 p. m. on December 12, 1965, John Kimbrough and a girl friend were seated in a booth in the Hyde Park Liquors, a lounge located at 1352 East 63rd Street, Chicago. Defendant offered the girl $5 for an act of sexual intercourse. Kimbrough resented this conduct by defendant and demanded an apology. Defendant apologized, said he was sorry and left.

Two or three hours later, at approximately 1:00 a. m., defendant returned armed with a loaded pistol. Kimbrough and the girl were still there. Defendant went to Kimbrough, cocked the pistol, put it to Kimbrough’s head and demanded an apology. Both Kimbrough and the girl apologized to defendant. At this point, Clarence O’Dell Brown, floor man and bouncer in the lounge, approached the defendant. Brown had a flashlight in one hand. Although the owner, two employees and a patron testified for the prosecution, and another patron testified for the defendant, no witness saw Brown with any other thing in his hand but the flashlight.

Brown told defendant that guns were not allowed in the lounge. Brown demanded the gun. Defendant refused. Brown reached for the gun; defendant pushed Brown away and then fired three shots, two inflicted mortal wounds from which Brown died a short time later. Defendant walked out to his 1964 white convertible Cadillac and drove away. Kimbrough followed him, took the license number of defendant’s car and give it to the owner who, in turn, gave it to the police. Defendant was arrested a distance away from the lounge.

At his trial defendant did not testify. He called as his witnesses Kimbrough who repeated the testimony he gave for the prosecution, two police officers, a patron who witnessed most of the crucial events and his aunt, a Mrs. Lucinda Sutherland. After the facts we have summarized were established by the evidence, defendant tendered, but the court refused, an instruction that defined involuntary manslaughter. Defendant contends this was error.

A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death, are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly. People v. Johnson, 54 Ill App2d 27, 203 NE2d 283; Ill Rev Stats 1967, c 38, § 9-3 (a). Where evidence clearly demonstrates that a killing is murder, the giving of a manslaughter instruction is improper. People v. Gonzales, 40 Ill2d 233, 239 NE2d 783; People v. Latimer, 35 Ill2d 178, 220 NE2d 314; People v. Brown, 89 Ill App2d 231, 231 NE2d 262. Here, evidence in the record clearly demonstrated that defendant intentionally fired three shots at the deceased, two inflicted mortal wounds. “The court did not err in refusing to instruct the jury on manslaughter. An instruction defining that crime should not be given when the evidence, as here, admits only the conclusion that the crime was murder.” People v. Waldron, 33 Ill2d 261, at 263, 211 NE2d 367.

Defendant’s other contention is that the sentence imposed by the trial court is excessive. He asks us to reduce the sentence by exercise of the power we possess under Supreme Court Rule 615, Ill Rev Stats 1967, c 110A, § 615(b) (4).

It is a fundamental precept of our law that penalties for crimes shall be proportioned to the nature of the offense. Art II, § 11, Constitution of Illinois, SHA; People v. Lillie, 79 Ill App2d 174, 223 NE2d 716. A corollary of this precept is the principle that sentences fit the rehabilitation potential of a convicted defendant. See People v. Livingston, 117 Ill App2d 189, 254 NE2d 64. Initially, it is the responsibility of the trial judge, after hearing evidence in aggravation or mitigation, to strike a balance and impose a sentence consistent with our laws. We will reduce a sentence when it is necessary to prevent arbitrary or oppressive treatment of offenders, or when the punishment imposed is a departure from fundamental law. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673; People v. Ramey, 115 Ill App2d 431, 253 NE2d 688; People v. Juve, 106 Ill App2d 421, 245 NE2d 293.

On the evening in question defendant went to a place of public accommodation armed with a loaded pistol, cocked it and held it to the head of a patron who had done nothing to deserve that kind of treatment. A short time later defendant took a human life in a way which the jury found was murder. At the hearing in aggravation and mitigation the State proved that on September 28, 1952, he shot and killed a woman named Anna Mae Jamerson. He pleaded guilty to the charge of murder and was sentenced to serve fourteen years. Thus, it appears that defendant is a murder recidivist. We assume that the trial judge took these factors into consideration when he imposed sentence.

In support of his argument urging us to reduce this sentence, defendant makes the naked claim that it is excessive. More than this is required before we will exercise our power under Supreme Court Rule 615. People v. Ledferd, 94 Ill App2d 74, 236 NE2d 19. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Workmen’s Lumber & Construction Co., an Illinois Corporation, d/b/a Workmen’s Construction Company, Plaintiff-Appellant, v. Ulysses Martin and Rebecca Martin, Defendants-Appellees.
    Gen. No. 52,609.
    First District, Fourth Division.
    March 11, 1970.

      Mitchell Edelson, Jr., of Chicago (Dennis Cunningham, of counsel), for appellant.
    Lawrence S. Adler and Karl Schelly, of Chicago, for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal from a judgment dismissing plaintiff’s cause of action because of res judicata.

The litigation had its origin from a contract wherein defendants agreed to have plaintiff construct an addition to their home for the sum of $3,500. Defendants executed a promissory note for the amount agreed upon, plus interest, payable over a five-year term. Work was commenced but interrupted and the parties entered upon litigation.

Plaintiff filed a Claim and Cognovit on the promissory note on June 29, 1962 and a judgment by confession was entered in the amount of $3,757.50. In order to obtain a wage deduction order, plaintiff served defendants with a Summons in Confirmation. Ill Rev Stats, c 62, § 82 (1963). This section provides, inter alla, that a judgment by confession without service of process on the defendant shall not be the basis for seeking a deduction order, unless such judgment is confirmed after service of process, by trial de nova, as if such confession of judgment had not been obtained.

After a hearing on December 7, 1962, an order was entered denying confirmation, vacating the judgment and dismissing defendants’ counterclaim.

On January 3, 1964, plaintiff filed a complaint and subsequently an amended complaint alleging breach of contract and seeking damages and also recovery on quantum meruit and quantum valebant. Defendants’ answer denied that plaintiff performed in accordance with the provisions of the contract and further alleged that the City of Chicago precluded further performance under the agreement because the work was being done in violation of the Building Code of the City of Chicago. As a further defense, defendants alleged that the instant litigation “should be dismissed, for the reason that a prior suit 62 M 41900, involving the same parties, subject-matter and issues herein, has been fully determined.” Plaintiff’s reply denied that the prior litigation 62 M 41900 was res judicata as to the instant litigation.

The cause came on for trial and at the close of plaintiff’s case the court granted defendants’ oral motion for a finding in their favor on the basis that the cause of action was barred by the doctrine of res judicata because of the proceedings between the parties which had resulted in the denial of confirmation of judgment by confession.

Plaintiff contends that the two actions do not share a controlling fact or issue material to their determination which afforded defendant the defense of res judicata and that the prior proceeding failed to adjudicate the rights in litigation in a final and conclusive manner on the merits.

OPINION

Defendants rely upon the proceeding to confirm the judgment by confession as a bar to the subsequent proceedings. However, the court in the confirmation proceedings vacated the judgment secured by confession but did not dismiss the cause of action. Thus there was no final order disposing of the litigation regarding the debt evidenced by the promissory note.

In People v. Board of Education Pawnee Tp. High School, 350 Ill 597, 601, 183 NE 633 (1932) the court said:

“Unless a proceeding affords adequate opportunity for an investigation and determination of the merits, the judgment rendered will not operate as a bar to a subsequent suit upon the same cause of action. A judgment cannot be pleaded in bar of a subsequent action unless it is a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definite manner.” (Cases cited.)

The court in the confirmation proceedings could have vacated the confession judgment because of technical or procedural defects in the complaint, notice, service, warrant of attorney, etc., or on the ground that the full amount was not due and owing, since the construction had not been completed.

In Schoenbrod v. Rosenthal, 36 Ill App2d 112, 116, 183 NE2d 188 (1962) this court said:

“The doctrine of res judicata is that a cause of action once adjudicated by a court of competent jurisdiction cannot be tried again between the same parties or their privies in new proceedings, before the same or a different tribunal, except in an action to set aside or review the prior adjudication. (Cases cited.) The doctrine arises where the prior adjudication is relied upon as a conclusive bar to the entire new action. There are three essentials to its application: the cause of action, the parties or their privies, and the subject matter must be the same in both cases. (Case cited.) Not only all the matters which were litigated in the first cause of action, but also all those which could or might have been presented to support or defeat the claim are regarded as concluded by the prior judgment.
“Another rule concerning former adjudication, which rests on the same fundamental principle, is generally called estoppel by verdict. (Case cited.) Occasionally, it has been termed collateral estoppel (Case cited) a term which might advantageously be used in all cases. It is broad enough to cover both law and equity, and in law it would apply equally well to cases tried with or without a jury. Collateral estoppel arises where the second cause of action differs from the first but is between the same parties or their privies. The judgment in the prior action then operates as a bar to those points or issues raised or decided in the first case. (Cases cited.) Under collateral estoppel only the matters which were litigated in the first cause of action and not those which might have been, are deemed concluded.” (Case cited.) Also see Logan v. Presbyterian St. Lukes Hospital, 92 Ill App2d 68, 72, 235 NE2d 851.

In the case at bar the first proceeding was predicated upon a complaint alleging that defendants were indebted to plaintiffs for a certain sum as evidenced by defendants’ promissory note payable to plaintiffs. There was no reference to a contract between the parties. This subsequent proceeding was predicated upon a construction contract allegedly executed by the parties, and there was a separate count for labor performed and material delivered. Plaintiff alleged that defendants breached this agreement by not permitting plaintiff to complete the job, and plaintiff sought damages. In the alternative count, plaintiff sought recovery upon quantum meruit and quantum valebant. Res judicata therefore has no application since those issues which were raised or could have been raised in the earlier action were not the same as the issues in the current suit. Therefore, defendants’ defense of former adjudication must be measured by the doctrine of collateral estoppel or estoppel by verdict.

In Hoffman v. Hoffman, 330 Ill 413, 417, 161 NE2d 723 (1928) the court said:

“Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. This is sometimes denominated as an estoppel by verdict.”

There is nothing in the record to show any controlling fact or question material to the determination of both causes. There is only the fact that after a de nova proceeding it was established that plaintiffs were not entitled to a judgment by confession for the amount of the note plus attorney’s fees. In that proceeding defendants filed an Answer and a counterclaim to which plaintiffs responded with a reply and answer and the court after the de nova hearing dismissed defendants’ counterclaim, but plaintiffs’ complaint remained a pending cause of action. When a judgment by confession is vacated, the cause is in the same state as if commenced in the ordinary procedure by summons. George J. Cooke Co. v. Johnson, 179 Ill App 83 (1913).

Since the Act relating to proceedings to confirm judgments, chapter 62, § 82, supra, provides for a trial de nova, we recognize that in a proper case the doctrine of former adjudication, be it res judicata, collateral estoppel or estoppel by verdict, could be applicable to bar a subsequent proceeding, but not under the facts of this case.

We hold that the previous proceedings were not a bar to the subsequent cause of action and therefore reverse the trial court and remand this cause for further proceedings not inconsistent with this opinion.

Reversed and remanded.

ENGLISH and McNAMARA, JJ., concur.


text:
    Albert E. Manger, Richard A. Manger, and Flora Manger, His Wife, and LaSalle National Bank of Chicago, a National Banking Association, as Trustee Under Trust No. 34959, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant, Beverly Ridge Home Owners Association, a Corporation, Intervening Defendant-Appellant.
    Gen. No. 53,344.
    First District, Fourth Division.
    March 11, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellant.
    Edward R. Gustafson, of Chicago, for intervening defendant-appellant.
    Haskins, Maguire and Haskins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs brought an action for a Declaratory Judgment to declare invalid and to restrain the enforcement of the zoning ordinance as it classified plaintiffs’ property R-l and a portion B4-2 and to permit the use of the property for the erection of a six-story, 57 foot high structure consisting of fifty residential units in compliance with the requisites of an Rr-4 zoning classification. Beverly Ridge Home Owners Association, a corporation not for profit, was permitted to intervene as defendant. A judgment was entered granting the relief sought and defendants appeal from that judgment and contend that plaintiff failed to establish by clear and affirmative evidence that the Zoning Ordinances were arbitrary and unreasonable as applied to the subject property.

The subject property is vacant and unimproved and is located on the west side of Wood Street between 95th and 96th Streets in the city of Chicago. It consists of six lots, with a frontage of 294 feet on Wood Street and a railroad and has depth of 180 feet consisting of approximately 52,920 square feet. The zoning classification of the north 65 feet is B4-2, Restricted Service District, and the remaining south portion of approximately 230 feet is in a district zoned R-l, Single-Family Residence. Directly east across Wood Street from the subject property is an R-4 district, more than y% of which is devoted to the Vanderpoel Public School building and its playground facilities. The remainder of the R-4 zone consists of approximately 68,000 square feet upon which there is a 24-unit apartment building at the northeast comer of 95th Place and a 22-unit townhouse structure at the southeast comer with the remaining structures being single-family residences.

The south side of 95th Street which abuts the north boundary of the property is classified B4-2, Restricted Service District, and covers the south side of 95th from Wood Street to Longwood Drive, the street immediately west of Wood. This strip on 95th is improved with three stores. The remainder of the square block within which the subject property is located, bounded by 95th on the north and 96th on the south, is zoned R-l, Single-Family Residence, and improved solely with single-family residences. The entire adjacent area, approximately one mile west of Wood Street and extending south approximately one mile, except for the south side of 95th Street, is zoned either R-l or R-2 and contains uses in conformity with the R-l and Rr-2 classifications, with the exception of one nonconforming use at 99th and Wood four blocks south of the subject property which is in an area zoned B2-1.

The property fronts to the east on Wood Street and the tracks of the suburban line of the Rock Island Railroad extend down the middle of the street. Wood Street east of the tracks is paved and is used by only northbound traffic, Wood Street on the west side of the tracks is an unimproved road 100 feet south from 95th Street. If improved, it would only reach 96th Street bécause the Chicago Park District, Ridge Park, precludes any extension. The area adjoining the subject property on the west and south is from 15 to 20 feet higher than the subject property.

Testimony of JOHN TOWNSEND, called by plaintiffs:

He lives at 11650 Longwood Drive and has been an architect for 36 years and has a financial interest in the property. He has designed many residences and office buildings on Western Avenue and apartments on 103rd Street. He identified various exhibits which were admitted into evidence depicting a plat of survey, building plans and sketches. The purchase price of the property, including legal fees, was $100,000 and if the property were developed under R-l, its value would be only $15,000. The property was purchased in anticipation that it could be used as R-4.

The property was purchased a year before the suit was filed and plaintiffs took a calculated risk in real estate speculation in paying $100,000 knowing the true value to be $15,000. Plaintiffs purchased two contiguous pieces of real estate to create the present subject property. The north 60-foot parcel was zoned B4-2 while the other parcel was zoned R-l. There would be no problems about traffic congestion in putting in a driveway for a 67-car parking lot. There are no alleys around any part of the subject property and various services, such as garbage disposal, would be handled through the front of the property. It is anticipated that there would be ingress from 95th Street and egress at 96th, but the street department would have to resolve that question. Except for the R-4 across the railroad tracks from the subject property, the general area is R-l and R-2.

The single-family homes which abut the property to the west are almost all 3-story buildings and the height of- the proposed structure because of the topography would be as low as these homes.

JOHN McNAMARA, called by plaintiffs:

He has been a real estate broker and appraiser for 41 years, having an office at 9046 S. Ashland and is familiar with the property. He has appeared as a witness on zoning matters on behalf of the city of Chicago and County of Cook and has testified as to evaluation and also as to the highest and the best use of property in reference to zoning. He has represented both plaintiffs and defendants and is qualified as an expert.

The property was examined and a series of photographs made and the witness identified them and relied upon them to assist him in testifying.

' The 95th Street frontage is what is known as stripped business district facing north and south on 95th Street. It is a B4-2 zone where the property is located. West of the property on Longwood Drive there are seven single-family dwellings, one is brick and six are frame. On the south side of 96th there are two brick residences with their garages bounding the subject property’s south boundary (on the plat of survey the brick residences and garages are shown to be on the north side of 96th). The property is covered with brush and scrub trees. There are single-family houses facing south along the north side of 95th Place between Vanderpoel and Wood. If the south part of the property was developed single-family, it would be worth $15,000 to $25,000. The proposed development would enhance the value of the abutting property and would not have a depreciatory effect on the surrounding area.

It would be difficult to value the subject property under Rr—1 zoning since it has been dormant so long, it is difficult to visualize it as single-family because it is 15 to 20 feet below the grade of Longwood Drive and faces the railroad tracks and you could not get anyone to purchase this property and live there. The homes west of the property on Longwood Drive sell in the $30,000, $20,000 bracket. The proposed R-4 development would not depreciate the value of the surrounding homes, because there is over 100 feet between the buildings and the rear of the subject property.

The first multiple dwelling north of the property on the west side of the tracks would be in the vicinity of 90th Street. South of the property and west of the tracks there is an apartment development at 99th and the tracks and R-4 and R-5 developments from 99th to 107th Street. The structure at 99th could be a nonconforming use.

GEORGE W. KEMP, JR., called by plaintiffs:

Is a realtor at 750 E. 71st Street, and is President of McKey and Poague, Inc., and has been in the real estate business for 29 years. He is a member of the Chicago Real Estate Board, and was once its President and has on many occasions testified on behalf of applicants and respondents before courts and associations. He lives a half mile from the property and maintains offices in that area and is well qualified and knowledgeable regarding the subject property and its surroundings.

The zoning map in evidence shows that the public park, Ridge Park, starts on the south side of 96th Street, which is approximately 250 feet from the south line of the property. Ridge Park also runs along the west side of the railroad.

The highest and best use of the subject property is to be improved with an apartment development such as the one that has been proposed by plaintiffs. It is the type of housing needed to support the neighborhood. People, who no longer have a need to maintain a large single-family residence, move into these multiple dwellings and are able to remain in the neighborhood. The proposed development would enhance the community and surrounding property values. As a real estate expert, it is recommended that a change be made from R-l to R-4. Mr. Townsend has not made any commitment that the witness manage the property if it is built, but he would certainly like to manage it, and does manage other property owned by Mr. Townsend. Many people have sold their homes in Beverly Hills and have moved into apartments at 103rd Street and if the development goes in, the value and market price of the surrounding homes on Longwood Drive would be “stronger or strong as now.”

MORGAN FITCH, called by intervenors:

He has been residing at 9531 Longwood Drive for 28 years and has been a realtor for 46 years in the area south of 63rd Street out to the city limits and suburbs. His company has sold, financed and managed property and some has been located in the Beverly Hills area of Chicago. He has done appraisal work and is a member of the Chicago Real Estate Board and was its president.

North of 95th Place east of the tracks there is a two-story building erected in 1940 which consists of 22 townhouses ; in general it has been a credit to the community. It has a street on 3 sides and an alley on one side.

South of 95th Place there is a two-story garden apartment building with 24 apartments having streets on 3 sides. The proposed building would have a deleterious and harmful effect on the properties in the immediate area and in the surrounding area as well. This will spread throughout Chicago and will undermine the basic principle of zoning which is meant to keep communities in the context of which they are established. It will end residential values in Chicago and reduce values of the property abutting on Longwood Drive and on 96th Street. The development would create congestion in a section not intended to accommodate an intense population. He did not know that part of the property was zoned B4-2.

Four residents of the immediate area of the property testified on behalf of the interveners and express their disapproval and objections to the development proposed by plaintiffs, because of increased traffic, danger to children, drastic change in type of neighborhood and the size and height of the proposed building would be detracting to the neighborhood. It would also interfere with privacy, light and air.

CARL L. GARDNER, called by interveners:

He is a city planning consultant since 1953 and holds a Master’s degree in city planning from Harvard University. He has testified many times in matters relating to zoning. In his testimony he also relied upon the exhibits in evidence consisting of maps, surveys, plans, drawings and photographs.

The proposed building is not the highest and best use of the subject property and would not be in accord with the present land use patterns of the area. It would be 57 feet above street level and this would be approximately 12 feet above the structures on Longwood Drive to the west. The proposed building would be 45 feet above the grade level of the homes to the west. The location of the property makes vehicle access difficult. Wood Street has a railroad track down the center and that leaves 27% feet of public way on each side, including the sidewalk and curb, which results in a very narrow road of about 18 to 20 feet. If the west side of Wood Street were improved, it would be a one-way street southbound to 96th Street, where it stops because of Ridge Park. Vehicle accessibility is further restricted to 17 feet at 95th and Wood by the railroad gate expansion at that intersection.

There is no reason why the subject property cannot be developed R-l except for the 60-foot north portion which is B4-2, It could be developed with a half dozen detached single-family homes that meet the zoning requirement. This is substantiated by the fact there have been a number of new homes built along the railroad since World War II. Interveners’ exhibits consisting of photographs and charts were also introduced into evidence and referred to in this witness’ testimony.

The witness is very familiar with the area largely through working with the planning department of the city of Chicago and has personally visited the instant property and surrounding areas. The property does not take its character from the business development on its north edge. The 80-foot wide street with the double railroad tracks running down the middle is a logical line of demarcation between the R-4 east of the tracks and the R-l west thereof. The proposed building is an overpowering structure and being 57 feet high cannot help but cut off light and air and change the character of the area. The site does not lend itself to a multifamily structure.

ROBERT E. DWYER, called by defendant:

He is a real estate broker and appraiser and has appraised property for banks, loan associations, attorneys and estates and has testified many times in the courts. He visited the property and has been in the area 25 to 30 times and is familiar with the surrounding area. In his opinion the single-family homes on 96th Street abutting the subject property are valued in the $25,000 bracket. It is his further opinion that the highest and best use of the south portion of the subject property is for single-family homes. The character of the neighborhood is single-family homes. The best and highest use of the north 60 feet is its present classification of B4-2. Single-family unit residences at the site would give a minimal traffic use on the narrow street abutting the railroad tracks. The erection of the proposed development would depreciate the surrounding single-family homes by about 20%.

OPINION

Defendant contends that the plaintiffs failed to establish that the zoning classification of the subject property was arbitrary and confiscatory. A presumption exists in favor of the validity of a zoning ordinance and the one challenging its validity has the burden of overcoming this presumption by clear and convincing evidence. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201 (1963); Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962); and Menolascino v. Village of Franklin Park, 106 Ill App2d 472, 246 NE2d 122 (1969).

In determining the validity of a zoning classification, the question of whether or not it is in conformity with surrounding existing uses and the zoning classification of nearby property is considered of paramount importance. First Nat. Bank v. County of Lake, 7 Ill2d 213, 130 NE2d 267 (1955) and American Oil Co. v. County of DuPage, 58 Ill App2d 48, 206 NE2d 510 (1965). A particular piece of property may acquire the characteristics of the surrounding property and thereby invalidate the zoning classification of the subject property. People ex rel. Chicago Title & Trust Co. v. Reiter, 25 Ill2d 41, 182 NE2d 680 (1962). Plaintiffs contend that the subject property takes its character from the two multifamily structures in the R-4 zone that is across the tracks, east of the subject property. We do not agree. Initially, we point out that plaintiffs’ own witness Townsend testified that the general area is zoned R-l and R-2. The record shows that for almost a mile west and south the properties are zoned for single-family units, with the exception of a nonconforming use at 99th and Walton Parkway which consists of a 9-unit structure in a B2-1 zone. In addition, the railroad tracks are an appropriate dividing line between the two zoning classifications. A street or alley has been held to be an appropriate dividing line. LaSalle Nat. Bank v. Village of Skokie, 26 Ill2d 143,186 NE2d 46 (1962). We hold that the subject property takes its character from the exclusively single-family areas which are to the south and west.

Another compelling reason for this view is that the subject property lacks the streets and alley necessary to properly afford egress and ingress. Trucks servicing the proposed building, together with automobiles of the residents and visitors, would not only affect adversely the traffic situation on Wood Street, but, in finding their way out from the subject property, would also increase greatly the traffic on 96th Street, Longwood Drive, and perhaps other nearby single-family residence streets.

The existence of a narrow one-way street in front of the subject property is more compatible for single-family units. The R-4 across the tracks is vastly dissimilar in this regard because it affords an alley and ample street accessibility that is necessary to absorb the density of traffic generated by a high density structure as proposed by plaintiffs.

Plaintiff also contends that the zoning classification is unreasonable because it does not promote the public welfare. A zoning classification is presumed to be designed to promote the general welfare. Bullock v. City of Evanston, 5 Ill2d 22, 123 NE2d 840 (1954). The evidence failed to overcome this presumption. Plaintiffs purchased the two parcels comprising the subject property with full knowledge of its zoning restrictions. While a party who purchases property in the face of the existing zoning classifications is not precluded from challenging the validity of the zoning classification, his purchase in the face of the existing zoning classification is one factor to be considered. American Nat. Bank & Trust Co. v. City of Chicago, 30 Ill2d 251,195 NE2d 627 (1964). Plaintiffs admit that they purchased the two parcels comprising the subject property with the intention of endeavoring to secure a change of zoning classification and described their plans as a “calculated risk” in paying $100,000 for what they knew to be the then true value of $15,000.

Plaintiffs also contend that the property has remained vacant because it is improperly zoned.

This contention is generally advanced in zoning litigation where the property has lain vacant and under appropriate facts and circumstances it can be afforded some merit. Vacant property is often permitted to remain undeveloped in anticipation that a rezoning will enhance its value and thus there is no inclination to sell .or develop it as zoned. It is significant that no evidence was adduced to show that efforts had been made to sell the subject property for single-family residences. People v. Village of River Grove, 68 Ill App2d 383, 216 NE2d 218 (1966) and Reeve v. Village of Glenview, 29 Ill2d 611,195 NE2d 188 (1964).

Plaintiffs urge that we should take judicial notice that in the city of Chicago most of the single-family residences that abut railroad tracks are shabby, of inferior quality and are not properly maintained, and that any single-family construction upon the subject property would be of inferior quality and would seriously impair rather than improve the area. We do not agree. We note that the exhibits and photographs depict the single-family homes abutting the railroad tracks in the area as being substantial and well maintained.

In the case at bar a change of zoning would permit an encroachment of a multifamily use under R-4 upon an otherwise solid and stable residential area and could then, with equal reason, be relied upon in the future as justification for additional R-4 rezoning of the contiguous R-l and R-2 parcels.

We also find that the court erred in awarding plaintiff an R-4 classification of the subject property and permitting erection of a six-story, 50-unit apartment building which would rise 57 feet above grade. This is certainly a drastic alteration and incongruous modification of an area consisting primarily of single-family residences. The determination of a zoning classification is a legislative rather than a judicial function, and where there is a legitimate difference of opinion concerning the reasonableness of the classification, or where the question of reasonableness is fairly debatable, the courts will not and cannot interfere with legislative judgment, nor carve out and rezone a portion of a tract of land. Bredberg v. City of Wheaton, 24 Ill2d 612, 182 NE2d 742 (1962). We therefore reverse the judgment.

Judgment reversed.

DRUCKER and ENGLISH, JJ., concur.


text:
    Laury Chimerofsky, a Minor, by His Father and Next Friend, Jack Chimerofsky, Plaintiff-Appellant, v. School District No. 63, Cook County Board of Education of School District No. 63, and Village of Niles, Defendants-Appellees.
    Gen. No. 53,396.
    First District, Fourth Division.
    March 11, 1970.

      Jurco, Damisch & Sinson, of Chicago (Junie L. Sinson and James R. Mitchell, of counsel), for appellant.
    Joseph A. Bailey, of Chicago (Eugene F. McMahon, of counsel), for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

The trial court dismissed a complaint for failing to state a cause of action and judgment was entered in favor of defendant. Plaintiff appeals from that judgment.

The cause of action was predicated upon personal injuries sustained by Laury Chimerofsky, 3% years of age, when he fell from a playground slide located on property owned and maintained by the School District. The Village of Niles was dismissed by stipulation in the trial court.

Plaintiff contends that:

(a) the court erred in dismissing the complaint when no written motion was pending;

(b) defendant waived any defects in the complaint by filing an Answer; and

(c) the complaint did not utterly fail to state a cause of action and hence was improperly dismissed.

The complaint alleged, inter alla, that defendant maintained a playground with various playground equipment, including the higher of two slides which was inherently attractive to young children. Large numbers of children were attracted to the playground, which was unprotected by any fence or barricade and was unguarded and unsupervised. Defendant knew or should have known that young children, because of their childish impulses, lack of experience and judgment were exposed to great and unusual danger by their playing on the higher slide.

Plaintiff specifically alleged that defendant carelessly and negligently:

1. maintained the higher of the two slides with knowledge that young children played upon the higher slide which was dangerous and unsafe;

2. failed to warn young children of the danger of playing on the higher slide;

3. failed to provide a guard, supervisor, watchman or other employee to prevent young children from climbing on the higher slide; and

4. failed to fence, barricade or otherwise impede young children from having access to the higher slide.

Defendant filed an Answer admitting knowledge that young children utilized the playground and slide and that it was designed to attract them, but denied that any child was exposed to great and unusual danger by playing upon the higher slide. Defendant denied all the allegations of negligence.

Eventually the litigation was assigned for trial and upon appearance before the court, the parties and the court entered into a protracted discussion of the merits of the pleadings. The court suggested that the parties research the applicable law and present it to the court for a determination of the legal sufficiency of the complaint. The following day, the court and both counsel again discussed the legal sufficiency of the complaint and each party argued the merits of their contentions. Defendant made an oral motion for judgment on the pleadings and subsequently, a motion to dismiss for failure to state a cause of action. After hearing arguments the court held that the complaint failed to state a cause of action and was legally insufficient. An order was thereupon entered dismissing the complaint and directing that the parties shall go without day.

Plaintiff contends that the court erred in entertaining defendant’s oral motions and argues that the procedure of the trial court nullified the statutory requirements of specificity, notice and timeliness regarding motions. There was no objection by plaintiff to the procedures before the trial court.

Section 42(3) of the Civil Practice Act states that all defects in form or substance not objected to in the trial court are waived. A motion is a pleading. As a general rule objections to a pleading may be waived by failure to urge the objection at the proper time and in the proper manner or by any act which, in legal contemplation, implies an intention to overlook it. 71 CJS, Pleadings, p 1128, § 563a. The parties and the court proceeded in a most informal manner in the raising and disposition of the issues. See Haynes v. Multi-State Inter-Insurance Exchange, 40 Ill App2d 167, 189 NE2d 369 (Abst opinion) (1963). We are aware that in Haynes, supra, defendant advised plaintiff he was going to make a motion to dismiss the following day, but this distinction is not controlling in the evaluation of plaintiff’s contentions in the case before us.

Plaintiff also contends that defendant, by filing an Answer, waived any defects in the complaint. However, defendant made a motion for judgment on the pleadings and the court’s order in substance responded to this motion.

In Swidler v. Litvin, 107 Ill App2d 227, 246 NE2d 895 (1969), the court said at page 230:

“Section 45(5) of the Civil Practice Act (Ill Rev Stats 1967, ch 110, § 45 (5)), provides that any party may seasonably move for judgment on the pleadings. After the motion is made, the court must examine the pleadings to determine if a factual issue exists or if the matter can be resolved solely as a matter of law. (Citing cases.) A motion for judgment on the pleadings raises the question of whether there is any issue of material facts presented by the pleadings and, if there is no such issue, the question as to which party is entitled to judgment.”

Plaintiff also contends that the complaint did not utterly fail to state a cause of action, and hence was improperly dismissed.

A plaintiff in tort litigation for personal injuries must allege facts in the complaint from which the law will raise a duty. The social utility of furnishing playground slides for the pleasure and enjoyment of children is a commendable function of governmental bodies ' at all levels. The existence in this State of the many unsupervised public playgrounds and public recreational facilities that provide playground slides is common knowledge.

The cost and burden of supervising or maintaining each of these facilities and requiring children to be sorted out because of age, height, weight and attitude and directed to and from higher and lower playground slides would be such a burden and duty, in view of the risk involved, to require elimination of most such facilities in this State.

Plaintiff relies principally upon Kahn v. James Benton Co., 5 Ill2d 614, 126 NE2d 836 (1955), and its related cases, and contends that defendant in the exercise of reasonable care should have foreseen injury to young children playing upon the higher slide and thus had a duty to warn them, supervise the playground, fence it and preclude access by younger children to the higher slide.

However, in Lance v. Senior, 36 Ill2d 516, 224 NE2d 231 (1967) the court said at page 518:

“After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.”

In Kahn, supra, at page 622 the court said:

“The creator of certain conditions dangerous and hazardous to children because of their immature appreciation of such dangers and hazards must be held to a certain standard of conduct for the protection of such children in accordance with the attendant circumstances and conditions. Account must be taken of the cost and burden of taking precautionary measures and of the right of families and society to rear and develop children with freedom of activity in their communities, without being subject to unreasonable risks which might cause serious injury or death to such children.” (Emphasis supplied.)

The risk that children will climb upon and fall from an admittedly nondefective standard playground slide is not an “unreasonable risk” so as to produce a duty within the meaning of Kahn to require defendant to fence, guard or supervise the playground slide or warn plaintiff against its use. See Sydenstricker v. Chicago & North Western Ry. Co., 107 Ill App2d 427, 247 NE2d 15 (1969). We therefore affirm the judgment.

Judgment affirmed.

DRUCKER and LEIGHTON, JJ., concur.