author: MR. JUSTICE RYAN

text:
    (No. 54313.
    THE PEOPLE ex rel. WILLIAM J. SCOTT, Attorney General, Appellee, v. HERMAN M. SILVERSTEIN et al. (George A. Otlewis, Appellant).

      Opinion filed November 20, 1981.

      Feiwell, Galper & Lasky, Ltd., of Chicago (George S. Feiwell, Daniel C. Meenan and Bernard L. Rivkin, of counsel), for appellant.
    Reuben & Proctor, of Chicago (Don H. Reuben, Lawrence Gunnels, Samuel Fifer, and Charles J. Sennet, of counsel), for appellee William Currie.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The present appeal is ancillary to People ex rel. Scott v. Silverstein, which was brought by the Illinois Attorney General and which is now pending in the circuit court of Cook County against five individual defendants who are either officers or directors of the George F. Harding Museum in Chicago, the George F. Harding Museum, Sotheby Parke Bernet, Inc., a New York corporation, and one of its employees, seeking to enjoin the sale of certain assets of the museum, to remove its directors, and to hold the directors personally liable for losses which the museum may have sustained.

One of the defendants, a director of the George F. Harding Museum, George A. Otlewis, subpoenaed William Currie for his deposition and for the production of certain documents. Currie is a newspaper reporter for the Chicago Tribune. He is not a party to the principal action. Currie wrote a number of articles for the Chicago Tribune relating to the subject matter of the principal case. He was also assigned to report on developments in the litigation.

In response to the subpoena, Currie filed a motion to quash, contending that the enforcement of the subpoena would violate “An Act concerning disclosure of the sources of information obtained by certain persons in the news media” (the Reporter’s Privilege Act) (Ill. Rev. Stat. 1979, ch. 51, par. Ill et seq.), the first amendment to the United States Constitution, and article I, section 4, of the Illinois Constitution. In response to Currie’s motion, defendant Otlewis argued that the subpoena should be enforced because Currie had “waived” his privilege as a result of his disclosures to Donald C. Mulack, a special assistant Attorney General and chief counsel for the plaintiff in the principal action. In the alternative, defendant argued that, even if the privilege did apply, in this case divestiture, as provided for in the Act (Ill. Rev. Stat. 1979, ch. 51, pars. 116, 117), was necessary, since relevant information would be otherwise unavailable. Finally, defendant took the position that he is entitled to an opportunity to “confront” Currie as one of the individuals who instigated the litigation.

After a hearing in the circuit court of Cook County, the court denied Currie’s motion to quash on the ground that Currie had “waived any and all rights to assert any privilege” under the Act or the Federal or State constitutions by virtue of his disclosure of the information to Mulack. The trial court found, however, that the defendant had failed to sustain the statutory burden of proof under the Reporter’s Privilege Act necessary for an order of divestiture and ordered the scope of the deposition to be limited to “such sources and such data as William Currie divulged to Plaintiff’s attorney, Donald G. Mulack, as disclosed in Mulack’s deposition of June 29, 1979 and July 2, 1979.”

Currie sought review of that decision in the appellate court. Preliminarily, the court found that the order requiring Currie to appear for the deposition was final and appealable under Supreme Court Rule 301 (73 Ill. 2d R. 301). (89 Ill. App. 3d 1039, 1042.) The appellate court reversed the decision of the trial court and held that Currie had not “waived” the privilege conferred by the Reporter’s Privilege Act. The court also found that the defendant was “not prejudiced in the least by the lack of an opportunity to depose Currie” because the “information sought by [defendant] Otlewis from Currie is the same information defendant obtained in Mulack’s deposition.” 89 Ill. App. 3d 1039, 1045.

We need not address the merits of the substantive issues raised or the issue of waiver because we hold that the order of the trial court requiring Currie to appear for the deposition was not a final and appealable order under Supreme Court Rule 301. 73 Ill. 2d R. 301.

The 1970 Illinois Constitution vests in this court the authority to make rules governing appeals. (Ill. Const. 1970, art. VI, §§ 6, 16.) Also, section 6 of article VI provides that appeals from final judgments of the circuit court are a matter of right to the appellate court and that the supreme court may provide by rule for appeals to the appellate court from other than final judgments of the circuit courts. (Ill. Const. 1970, art. VI, § 6.) Accordingly, Supreme Court Rule 301 (73 Ill. 2d R. 301) provides that “[e]very final judgment of a circuit court in a civil case is appealable as of right.” (Emphasis added.) Similarly, Supreme Court Rule 304 (73 Ill. 2d R. 304) provides for appeals from final judgments as to fewer than all the parties or claims. (Emphasis added.) Pursuant to the constitutional authority to provide for appeals from other than final judgments, Supreme Court Rules 306, 307, and 308 (73 Ill. 2d Rules 306, 307, 308) provide for appeals from certain specified interlocutory orders of the court. Discovery orders are not made appealable under the provisions of these rules. There has been no argument made that Supreme Court Rules 306, 307, or 308 apply in this case.

A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (Relph v. Board of Education (1981), 84 Ill. 2d 436, 441.) Preliminary orders in a pending case are not appealable because they are reviewable on appeal from the final order. (Durkin v. Hey (1941), 376 Ill. 292, 297.) However, an order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order and has been held to be an appropriate method for testing pretrial discovery orders. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 189; Stimpert v. Abdnour (1962), 24 Ill. 2d 26, 27; People v. Williams (1981), 87 Ill. 2d 161; People ex rel. Hawthorne v. Hamilton (1973), 9 Ill. App. 3d 551, 553; Kemeny v. Skorch (1959), 22 Ill. App. 2d 160, 163.) The imposition of a sanction for contempt is final and appeal-able because, although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises. (Hill v. Jeffery Co. (1920), 292 Ill. 490, 493; Lester v. Berkowitz (1888), 125 Ill. 307, 308.) It is the end of the proceeding begun against the witness. There is nothing left to be done but enforce the judgment.

We need not determine whether Laurent v. Brelji (1979), 74 Ill. App. 3d 214, which the appellate court relied on in reaching its decision that the pretrial discovery order in this case was final and appealable, was correctly decided because it is readily distinguishable from the instant case. In that case the superintendent of the Chester Mental Health Center had appealed from a circuit court order directing him to comply with an administrative subpoena duces tecum requiring him to testify and to produce for inspection the records of a former patient of the Chester facility in connection with a Civil Service Commission discharge proceeding. The hearing officer denied the superintendent’s motion to quash, and the employee and the Civil Service Commission filed a petition in circuit court for enforcement of the subpoena. On review, the appellate court found the order of the circuit court to be final and appealable. The court reasoned:

“The absence of an order of contempt in this case, however, does not deprive us of jurisdiction over the matter, since we conclude the order of the circuit court was final and not interlocutory. An order which in substance finally adjudicates the rights of the parties and terminates the litigation is final and appealable. [Citation.] Here, the proceeding before the circuit court was a separate, independent action. [Citation.] After the court ordered the recusant witness to testify and produce the records, the proceeding before it was terminated. In that sense it was distinguishable from other discovery orders entered in a cause pending in the same court. The order of the court finally determined the rights of the parties before it and terminated the litigation. 900 [Citations.]” (Emphasis added.) Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 216.

In Laurent v. Brelji, the principal case was an administrative proceeding before the Civil Service Commission. The proceeding in circuit court was a separate action. A similar result was reached in Ellis v. Interstate Commerce Com. (1915), 237 U.S. 434, 442, 59 L. Ed. 1036, 1040, 35 S. Ct. 645, 646, in which an appeal was allowed from a trial court order directing a witness to answer questions and produce records in an inquiry before the Interstate Commerce Commission. In Durkin v. Hey (1941), 376 Ill. 292, 296-97, an appeal from an order requiring the production of an employer’s general ledger and other records was allowed because the order was not merely a preliminary order for the production of evidence in a pending suit.

In contrast to the orders in the cases above, in its present stance, the order of the trial court that Currie respond to the subpoena is an interlocutory one, made as a preliminary order in a pending suit. (Durkin v. Hey (1941), 376 Ill. 292, 297.) Defendant Otlewis is correct in his argument that the appellate court would have jurisdiction under Supreme Court Rule 301 (73 Ill. 2d R. 301) only after Currie refused to obey the discovery order and a final order imposing sanctions and terminating contempt proceedings was entered against him.

At this point in the proceedings, Currie has the “privilege ° * * either to obey the order, or stand in defiance of the power of the court.” (Lester v. Berkowitz (1888), 125 Ill. 307, 308; Carden v. Ensminger (1928), 329 Ill. 612, 620.) Where an unappealable interlocutory order results in a judgment of contempt including a fine or imprisonment, such a judgment is a final and appealable judgment and presents to the court for review the propriety of the order of the court claimed to have been violated. People ex rel. Hawthorne v. Hamilton (1973), 9 Ill. App. 3d 551, 553.

Accordingly, the ruling of the appellate court as to the appealability of the interlocutory order is reversed and the cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 53395.
    JANET R. ATKINSON, Appellee, v. JOHN F. ATKINSON Appellant.

      Opinion filed November 13, 1981.

    Rehearing denied November 25, 1981.

      Bernard Rinella, of Rinella & Rinella, and Donald C. Schiller, of Chicago, for appellant, and John F. Atkinson, of Chicago, pro se.

    Bentley, DuCanto & Doss, Ltd., of Chicago (Joseph N. DuCanto and Paul J. Bargiel, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The marriage of John F. Atkinson (Jeff) and Janet R. Atkinson (Janet) was dissolved by the circuit court of Cook County on October 5, 1978. On January 25, 1979, the trial court awarded custody of the two daughters, ages 8 and 6, to Janet with liberal visitation to Jeff and reserved the question of specific visitation, child support, property division, and assessment of fees and costs. Jeff filed an appeal from this order on February 13,1979, specifying the issue of custody. On March 26, 1979, the court awarded the marital home to Janet and made certain dispositions of property. On June 13,1979, the court issued a supplemental judgment order which, inter alia, provided for certain dispositions of property, child support and visitation, rehabilitative maintenance, and fees and costs. On July 12, 1979, Jeff filed a second notice of appeal complaining of two provisions of the supplemental judgment.

On March 20, 1980, the Appellate Court for the First District affirmed the award of custody and stated the circuit court decision was not decided on the basis of sex and the record did not demonstrate an improper presumption in favor of the mother. The appellate court also affirmed the award of the marital home to Janet, inter alia, but reversed that part of the circuit court’s judgment requiring the establishment of a trust fund for the benefit of the children. (82 Ill. App. 3d 617.) We granted Jeff Atkinson’s petition for leave to appeal.

We initially consider Janet Atkinson’s contention that this court lacks jurisdiction to entertain Jeff’s appeal from the circuit court’s order awarding custody on January 25, 1979. She argues that the custody order was not final and appealable, and Jeff is therefore precluded from raising the custody issue on appeal.

Under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), where multiple claims for relief are involved in an action, an appeal from a final judgment as to less than all of the claims may only be taken if the trial court has made an express written finding that there is “no just reason for delaying enforcement or appeal.” No such finding was made here. Thus, the custody order was not a judgment from which an immediate appeal could be taken.

“The provisions of our rule were aimed at discouraging piecemeal appeals in the absence of some compelling reason and at removing the uncertainty as to the appealability of a judgment which was entered on less than all of the matters in controversy.” In re Marriage of Lentz (1980), 79 Ill. 2d 400, 407.

See Davis v. Childers (1965), 33 Ill. 2d 297, 300.

The order entered January 25, 1979, awarding custody to Janet was not a final order subject to the right of appeal. It did not contain the required Rule 304(a) findings. White Way Sign & Maintenance Co. v. Seltzer Pontiac, Inc. (1974), 56 Ill. 2d 342, 345.

Rule 303(c)(2) (73 Ill. 2d R. 303(c)(2)) . requires the appellant to “specify the judgment or part thereof appealed from.” In the notice of appeal dated July 12, 1979, Jeff asked for a review of two provisions in the supplemental judgment order of June 13, 1979, concerning the interest in the marital home and the establishment of a trust fund for the children. The notice of appeal is expressly limited to these matters. Jeff failed to specify that he was appealing the award of custody in his July 12, 1979, notice of appeal. Therefore we conclude that the appellate court lacked jurisdiction to review the custody award. (See People v. Lowe (1975), 30 Ill. App. 3d 49, 51; Wells v. Kern (1975), 25 Ill. App. 3d 93, 99; People v. Harvey (1972), 5 Ill. App. 3d 499, 502, cert. denied (1973), 410 U.S. 983, 36 L. Ed. 2d 179, 93 S. Ct. 1504; Scheffler v. Ringhofer (1966), 67 Ill. App. 2d 222, 224-25.) The judgment of the appellate court concerning custody is thus vacated and the appeal from the order awarding child custody is dismissed.

We now consider the award of the marital property. The trial court awarded Janet Atkinson all of the marital property (with the exception of Jeff Atkinson’s individual retirement account), rehabilitative maintenance of $350 per month for four months, as well as the entire interest in the marital home. Jeff Atkinson was ordered to pay $261 per week in child support, and establish a $100,000 trust fund to secure the children’s education and support.

We agree with the appellate court that the trial court exceeded the scope of its discretion in ordering the establishment of a trust fund for the benefit of the children.

The section of the Marriage Act relied upon in establishing the trust was section 503(d), which states:

“The court may protect and promote the best interests of the children by setting aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” (Ill. Rev. Stat. 1977, ch. 40, par. 503(d).)

This section of the Marriage Act was patterned after section 307(b) of the Uniform Marriage and Divorce Act. (The Uniform Marriage and Divorce Act was drafted by the National Conference of Commissioners on Uniform State Laws, composed of commissioners appointed from each of the States, the District of Columbia and Puerto Rico. The Act was approved by the Conference in 1970, amended in 1971, and again in 1973. (9A Unif. Laws Ann. Ill, 91 (1979).)) The Commissioners’ Comments to that section state, in part:

“Subsection (b) affords a way to safeguard the interests of the children against the possibility of the waste or dissipation of the assets allotted to a particular parent in consideration of being awarded the custody or support of a child or children.” (9A Unif. Laws Ann., Commissioners’ Comments, at 144 (1979).)

We concur in the appellate court’s assessment that the imposition of a section 503(d) trust is “inappropriate in the absence of evidence showing some need to protect the interests of the children” (82 Ill. App. 3d 617, 627) and therefore inappropriately applied to a responsible parent.

Jeff Atkinson also contends that the award of the marital home to the wife was erroneous. The parties agree that the marital home was purchased with Jeff’s nonmarital funds ($40,000) and title was taken with Janet Atkinson in joint tenancy. From the time the property was put into both parties’ names as joint tenants, it is presumed to be marital property despite the fact that one spouse has furnished all of the consideration out of nonmarital funds (In re Marriage of Rogers (1981), 85 Ill. d 217, 223).

Section 503(c) of the Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)) requires the trial court to divide the marital property “in just proportions considering all relevant factors, including:

“(1) [T]he contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, pars. 503(c)(1) through 503(c)(10).)

Under section 503(c), Jeff’s contribution is recognized. Other factors under the preceding section weigh in favor of Janet Atkinson. The marital home was valued at $140,000 with an outstanding mortgage of $55,000. Janet Atkinson’s annual salary for her part-time work was $15,000. Jeff Atkinson’s annual income from his employment was $26,000. His annual income from his nonmarital assets is about $27,800. Jeff’s economic circumstances, including his opportunity to acquire assets and income, were superior. The result was not inequitable under the circumstances. The trial court acted within the scope of its discretion in awarding almost all of the marital property to Janet. (See In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 36-38.) Both parties also agree that, given the familiarity with the home environment, proximity to school, and nearness of the children’s neighborhood friends, it is in the children’s best interest to remain in the marital home.

Finally, Jeff Atkinson contends that he is entitled to a refund of $5,567.71 which Janet withdrew from their joint checking account after the judgment for dissolution was entered. Jeff had made the only deposits to the account and he made them after the dissolution. Jeff’s argument that the money came from his nonmarital funds and therefore should be returned, overlooks the fact that the bank account was held in joint tenancy. It is well established that each joint tenant possesses a present estate in the assets comprising the joint tenancy. (Kane v. Johnson (1947), 397 Ill. 112.) The judgment of dissolution did not affect the parties’ joint interest in that joint bank account. Janet did make a number of withdrawals for her own personal expenses. While Jeff protested frequently at the amount of money Janet was spending, he never sought to prevent Janet from using the account. There is no indication that the parties agreed the money from the joint account was to be used only for the maintenance of the home and care of the children. We agree with the appellate court that Janet had the right to withdraw funds from the account, despite the fact that the deposits to the account were made by Jeff. Accordingly, we affirm that part of the appellate court decision.

That part of the judgment of the appellate court reversing the judgment of the trial court as to establishment of a trust fund and affirming the circuit court’s division of property is therefore affirmed. That part of the appellate court judgment which affirmed the trial court as to custody is vacated and the appeal from the custody order is dismissed.

Affirmed in part and vacated in part; appeal dismissed in part.


author: MR. JUSTICE SIMON

text:
    (No. 53879.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DANNY LEE (Jerome Trosclair, Appellee).

      Opinion filed November 13, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley and Bernard Carey, State’s Attorneys, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr and Robert J. Kaiser, Jr., Assistant State’s Attorneys, of counsel), for the People.
    Richard E. Gorman, of Chicago (Ronald R. Nosek, of Lombard, of counsel), for appellee Jerome Trosclair.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The defendant’s claim that he would be prejudiced by joint trial with his codefendants was not sufficiently substantiated to require severance. Because the trial judge was not specifically told how the defenses were antagonistic, the defendants’ joint trial here was proper.

Defendants Jerome Trosclair, Danny Lee, and two others were charged in the circuit court of Cook County with murder for the execution-style slaying of Reginald Bell, Sr., attempted murder for a similar attack upon Darryle Sanders, and armed robbery and burglary. The evidence developed at trial by the testimony of witnesses other than Trosclair’s codefendants disclosed that the four defendants invaded a party in an apartment, in search of a man called “Junior,” after an earlier request to search the apartment had been rebuffed by the occupants. Once inside the apartment, Trosclair produced a gun and ordered some of the occupants — Stanley Watson, Mary Ann Watson and Dewana Beard — to lie on the floor near Darryle Sanders, who was sleeping. Others in the apartment scurried out the back door or hid in a pantry. Bell got out of the apartment but then returned for his son. After leading the boy to safety, Bell confronted the defendants and asked them to take whatever they wanted but not to hurt anyone. Bell was ordered to join the four lying on the living room floor.

Unable to find their quarry, the defendants took jewelry, wallets, and items of clothing from those on the floor, as well as part of the apartment’s component stereo system. Trosclair then gave his pistol to Lee and told Lee to “Kill them all.” Upon learning that a pregnant woman was among those on the floor, Lee said that he would kill only two persons. He shot Bell and Sanders. All of the defendants then fled. Bell died and Sanders sustained injuries serious enough to confine him to the hospital for 9 months. Stanley and Mary Ann Watson each testified at trial about what took place and identified Trosclair and Lee.

At trial the four defendants had separate counsel. Lee answered the State’s motion for discovery by claiming that he would offer, as a defense, the State’s inability to prove him guilty beyond a reasonable doubt and the affirmative defenses, among others, of necessity and compulsion. Lee and another codefendant moved for severance. The record shows some confusion as to whether Trosclair joined in Lee’s motion, but in any event Trosclair’s attorney was not present when Lee’s motion was heard and did not argue at that time for a severance. These motions for severance were denied. Trosclair answered discovery by claiming as a defense the State’s inability to prove him guilty beyond a reasonable doubt.

On the morning of jury selection, Trosclair moved for severance. He claimed, without providing any more specific facts, that a codefendant had made statements which the State would use against Trosclair at trial and that his codefendants’ defenses were antagonistic to his. In a hearing on the motion Trosclair’s counsel said that he believed the codefendants would testify on their own behalf and implicate Trosclair. The court was not informed of what the substance of such testimony would be. The trial judge, stating that there was only a “possibility” of adverse testimony, denied the motion.

During the opening statements, counsel for Trosclair promised that Trosclair would take the stand, tell why he did not commit the crime, and present an alibi. One of the codefendants testified that he was not in the apartment where the murders occurred but saw Trosclair and another man (who was carrying part of the stolen stereo) running outside the building in which the crime was committed. Trosclair asked for a mistrial after this testimony, but the motion was denied.

Trosclair renewed his motion for severance when Lee took the stand and testified that Trosclair had forced him to do the shooting. Lee testified that he feared Trosclair had another gun and would shoot him as well as the persons on the floor if Lee did not do as told. Trosclair declined to cross-examine Lee; he neither took the stand nor made a closing argument. The jury found the two confederates guilty of armed robbery and burglary and Lee and Trosclair guilty of murder, attempted murder, aggravated battery, battery, burglary, and three counts of armed robbery. The appellate court reversed Trosclair’s convictions but affirmed those of his codefendants. (86 Ill. App. 3d 922.) The State sought, and was granted, leave to appeal Trosclair’s case under Rule 315 (73 Ill. 2d R. 315).

Ordinarily a motion for separate trial of jointly indicted defendants is to be made before trial commences. (People v. Rhodes (1969), 41 Ill. 2d 494, 497; People v. Anderson (1909), 239 Ill. 168, 179-80.) The motion must demonstrate how the defendant is going to be prejudiced by proceeding with a joint trial. Mere apprehensions of prejudice are not enough. (People v. Yonder (1969), 44 Ill. 2d 376, 386.) The decision to grant a separate trial is within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. Ill. Rev. Stat. 1977, ch. 38, par. 114 — 8; People v. Canaday (1971), 49 Ill. 2d 416, 424.

The general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lindsay (1952), 412 Ill. 472, 480.) At least two varieties of prejudice can be readily identified. First, a defendant may be denied his constitutional right of confrontation if, in a joint trial, the State introduces the admission of a codefendant which implicates the defendant. (Douglas v. Alabama (1965), 380 U.S. 415, 419, 13 L. Ed. 2d 934, 937, 85 S. Ct. 1074, 1077.) Because the defendant cannot call the codefendant to the stand for cross-examination, either a separate trial should be ordered or the admission should be redacted to eliminate any references to the defendant. (Bruton v. United States (1968), 391 U.S. 123, 134 n.10, 20 L. Ed. 2d 476, 484 n.10, 88 S. Ct. 1620, 1626-27 n.10; People v. Clark (1959), 17 Ill. 2d 486, 490.) No admissions of codefendants were entered into evidence by the State against Trosclair, and consequently he did not suffer this kind of prejudice as a result of his joint trial.

Prejudice may also occur when a codefendant takes the stand to point a finger at the defendant as the real perpetrator of the offense. No confrontation problems exist because the defendant is free to cross-examine the new accuser. But the procedure may be unfair. For example, as the court observed in People v. Braune (1936), 363 Ill. 2d 551, 557, “The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other.” A severance may be ordered where the defendants cannot realistically be aligned on the same side, but care must be taken in such cases to insure that the nature of the defenses are truly inconsistent. See People v. Brooks (1972), 51 Ill. 2d 156, 166.

Trosclair claims that this case presents the latter situation. The paramount inquiry in such cases is whether the defenses are so antagonistic that a severance is imperative to assure a fair trial. (People v. Gendron (1968), 41 Ill. 2d 351, 357.) There was no showing before trial that Trosclair’s defense would be antagonistic to those of his codefendants. The conclusions set forth in his petition for a severance were no substitute for a detailed recitation of what his defense would be, what the codefendant’s defenses would be, and how the two conflicted. (See, e.g., People v. Braune (1936), 363 Ill. 551, 553-54.) Trosclair failed to make such a showing here, even taking into account his answer to discovery. Without a detailed and specific showing of antagonism, there was no basis on which the judge could have determined whether Trosclair would suffer prejudice. There was no reason at that time to grant a separate trial.

The appellate court, though, felt that as the testimony unfolded the trial court should have seen the need for severance. Trosclair’s position is that to accommodate those infrequent situations where the basis of the need for severance is unknown or could not be predicted before trial and the existence of antagonism becomes obvious for the first time during trial, relaxation of strict adherence to the rule that the motion for severance must come before trial is indicated. (Accord, People v. Gendron (1968), 41 Ill. 2d 351, 357.) While a strict rule makes sense where severance is based on the use of a codefendant’s admission by the State (for there the statement is available to all concerned for examination and redaction before trial), problems may arise where the defendant fears that his codefendant will become his accuser at trial. Counsel is not always privy to a codefendant’s trial strategy and may not know for certain whether the codefendant will choose to take the stand to implicate a defendant.

Even assuming that Trosclair’s position is sound and that there would be a continuing right to move for severance after trial has begun, there was no error in refusing to sever the trials here. At no point, not even after Lee had testified, did Trosclair detail the antagonisms or inconsistencies between his defense and those of his codefendants. His stated defense was a reliance on the State’s inability to prove him guilty. The testimony of Trosclair’s codefendants did not add to the State’s case. While Lee placed Trosclair at the scene of the crime, Lee’s testimony was merely cumulative, repeating the testimony already received from Mary Ann Watson and Stanley Watson. Had Trosclair offered an alibi defense, as his counsel promised to do in opening statements, perhaps there might have been a showing of inconsistency. But counsel’s unfulfilled promise left Trosclair far short of an adequate showing. Because he offered no defense, the record shows no antagonism between the codefendants’ testimony and Trosclair’s defense. “It is incumbent upon a defendant, moving for a separate trial, to show to the trial judge how he would be prejudiced by a joint trial. If he fails so to do, he cannot, on review, complain of the action of the trial court in denying his motion.” People v. Meisenhelter (1942), 381 Ill. 378, 388.

A defendant is required, in seeking a separate trial, to do more than simply move for severance. The defendant must actively and specifically point out the antagonism of the defenses and so demonstrate the prejudice which will be suffered from a joint trial. Trosclair did not do so, and the denial of his severance requests prior to and during trial were not abuses of discretion. Trosclair’s conviction should not have been reversed.

The judgment of the appellate court is reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE WARD

text:
    (No. 53854.
    COOK ASSOCIATES, INC., Appellant, v. LEXINGTON UNITED CORPORATION et al., Appellees.

      Opinion filed December 4, 1981.

      Berger, Newmark 8c Fenchel, of Chicago (Harry D. Lavery and Christopher J. Horvay, of counsel), for appellant.
    Joel S. Ostrow, of Chicago, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal arises out of an action for breach of contract brought in the circuit court of Cook County. The plaintiff, Cook Associates, an Illinois corporation, brought the action against Lexington United Corporation, a Delaware corporation not licensed to do business in Illinois. Lexington is a dinnerware manufacturer whose principal place of business is St. Louis, Missouri. Lexington filed a special appearance to contest the court’s in personam jurisdiction (Ill. Rev. Stat. 1977, ch. 110, par. 20), but its motion to quash service of process was denied. Thereafter, Lexington answered, discovery was taken, and subsequently summary judgment was granted in favor of Cook. The appellate court reversed the judgment (86 Ill. App. 3d 909), holding that the circuit court lacked personal jurisdiction over Lexington. Because of the disposition it made, the appellate court did not consider the propriety of the summary judgment. We granted Cook’s petition for leave to appeal.

Cook is an employment agency whose offices are in Chicago. From July 1973 to July 1976, it also maintained a branch office in Massachusetts, which was operated by Edith McIntosh. Cook specializes in the placement of executive and professional employees with employers who pay Cook a fee if a person referred by Cook is hired. On May 12,1976, Joseph Runza, a Lexington executive, phoned McIntosh, with whom he had done business before, at Cook’s Massachusetts office. He requested assistance in filling a sales management position at Lexington. The record is unclear as to the title of the position discussed. It appears that Runza had first described it as “national sales manager” but later changed the description to “field sales manager.”

On May 13, 1976, McIntosh sent Runza the names and resumes of some prospective employees, one of whom was Gregg Hoegemeir. Her accompanying letter stated: “As you know from our previous correspondence, these men, like all of our candidates, are being submitted to you upon the understanding that if they are employed, our fee will be paid by you in accordance with the enclosed schedule.” Cook’s fee schedule indicated its Chicago address on the letterhead, and stated that the fee would be 20% of one year’s salary for positions paying $15,000 per year or more. The schedule also stated: “A fee will be due from you as to any applicant you hire within two years of our disclosure of his identity, or of our submission or referral of him, to you.”

Runza communicated with Hoegemeir and arranged to meet him in Chicago. Hoegemeir’s resume discloses that he was then a regional sales manager for a Chicago manufacturer and that he resided in Ballwin, Missouri. At the meeting, Runza offered Hoegemeir the position of “field sales manager” at an annual salary of $22,000. Hoegemeir rejected the offer, and the record reflects that there were no further contacts between Lexington and him for several months.

McIntosh’s employment by Cook terminated in July 1976. About three months later, she opened her own employment search and placement service in Massachusetts. It appears that soon thereafter, Runza communicated with McIntosh at her home and advised he was seeking a sales manager for Lexington. This time, it appears, the position would be that of “national sales manager” at a salary in excess of $22,000. McIntosh, acting for her own agency, submitted the names of a number of candidates, including that of Hoegemeir. After several interviews with Hoegemeir, Runza offered him the position at a salary of $25,000 and Hoegemeir accepted. The record does not show whether any of the negotiations which led to Hoegemeir’s employment took place in Illinois, nor does it make clear where the contract for his employment was made.

Hoegemeir began working for Lexington in December 1976, and Lexington paid McIntosh a $5,000 fee for her services. Cook later became aware of the hiring of Hoegemeir, and it demanded a $5,000 fee, representing 20% of Hoegemeir’s starting salary. When Lexington refused to pay the commission, Cook filed the action for breach of contract in July 1977.

Process was served on Lexington’s president, Frank Ivitch, when he was attending a trade show in Chicago. Ivitch and several other company officials were appearing in a week-long housewares exhibit of Lexington. Exhibitors were prohibited from selling merchandise at the exhibition. Less than $50,000 in orders was taken by Lexington at the exhibit, according to the answer to an interrogatory, and were later accepted at Lexington’s St. Louis office. Officials of Lexington had attended two other trade shows in Chicago in 1976 and 1977. At each of them, a similar volume of orders was received and later accepted.

Lexington’s other contacts with Illinois were listed in an affidavit of Ivitch, and in Lexington’s answers to interrogatories. Lexington did not have an office or an employee in this State. It had no Illinois telephone number. It did not advertise in Illinois, except in connection with the trade shows held in Chicago. Lexington merchandise was sold by an independent manufacturer’s representative in Illinois to his Illinois accounts. The record does not reflect the volume of those sales. The representative sold merchandise of other manufacturers as well. Working strictly on a commission basis, he received no salary from Lexington. In the year preceding the filing of this action an employee of Lexington accompanied the representative on three or four occasions, but the employee did not make any sales.

The appellate court held, on due process grounds, that the circuit court of Cook County lacked personal jurisdiction over Lexington.

When arguing before the appellate court the parties were not in agreement as to the test or standard to be applied for determining whether there was personal jurisdiction. Lexington submitted that our long-arm statute provides the only means of acquiring jurisdiction over a nonresident corporate defendant. That statute provides in part:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(a) The transaction of any business within this State;
# * *
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section.
(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.” Ill. Rev. Stat. 1977, ch. 110, par. 17.

Lexington contended that the requirements of the statute were not satisfied, because the action did not arise from “the transaction of any business” by Lexington in Illinois.

Cook, on the other hand, contended that the long-arm statute does not prohibit the acquiring of jurisdiction according to the doing-business doctrine. Under that doctrine, a foreign corporation is deemed to have submitted to our jurisdiction by doing business in Illinois. The nonresident defendant becomes amenable to service as a resident corporation, under section 13.3 of the Civil Practice Act, which states:

“A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals.” Ill. Rev. Stat. 1977, ch. 110, par. 13.3.

Cook urged that Lexington’s contacts with Illinois rendered the corporation subject to the jurisdiction of the circuit court of Cook County under the “doing business” view, or under the due process standard of “minimum contacts.”

The appellate court did not bottom its decision on any one of the standards suggested. It stated that “all of the proposed standards are probably one and the same — minimum contacts.” (86 Ill. App. 3d 909, 912.) The court concluded that Lexington did not have sufficient contacts with Illinois to allow a suit against it in this State because “there was an insufficient relationship among the defendant, the forum, and the litigation to show that Lexington could have reasonably anticipated being haled into court here to defend this cause of action.” 86 Ill. App. 3d 909, 914.

The parties reassert here the jurisdictional arguments that they made to the appellate court. Cook further argues that the appellate court’s decision was based on a foreseeability analysis, which it says is invalid under World Wide Volkswagen Corp.v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.

Under the due process clause of the fourteenth amendment there are limits to which a State is confined in asserting in personam jurisdiction over a nonresident corp orate defendant. The Supreme Court in International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158, described the constitutional requirement:

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Citations.] ”

It is important to recognize that this due process standard represents only the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents. A State is free to set its own limits in acquiring this jurisdiction within the perimeters allowed by the due process clause. (Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 556, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857. See Perkins v. Benguet Consolidated Mining Co. (1952), 342 U.S. 437, 448, 96 L. Ed. 485, 494, 72 S. Ct. 413, 420.) We recently stressed that the boundaries or limits under our statute are not to be equated with the “minimum contacts” test under the due process clause. In Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, we stated, in reference to the Illinois long-arm statute:

“In Nelson v. Miller (1957), 11 Ill. 2d 378, 389, this court said that the Illinois long-arm statute reflects a conscious purpose to assert jurisdiction over nonresidents to the extent permitted by the due process clause. We do not, however, regard this observation as the equivalent of declaring that the construction and application of section 17(1) (b) depend entirely upon decisions determining in what circumstances due process requirements would permit long-arm jurisdiction. Neither do we read Nelson to say that in applying section 17(1) (b) we should not construe the meaning and intent of our own statute irrespective of the due process limitations generally applicable to State long-arm statutes. A statute worded in the way ours is should have a fixed meaning without regard to changing concepts of due process, except, of course, that an interpretation which renders the statute unconstitutional should be avoided, if possible. Thus, instead of turning to the array of tests which have been articulated to assist in determining whether long-arm statutes as applied exceed permissible constitutional boundaries, we prefer to resolve this appeal by looking to the meaning of our statute.” (Emphasis added.)

We conclude that Lexington is not amenable to the jurisdiction of our courts under either the Illinois long-arm statute or under the doctrine of submitting to jurisdiction by virtue of doing business in Illinois.

Lexington is not amenable to service under the long-arm statute because the cause of action did not arise from' the transaction of business in Illinois. Cook argues, however, that a contract between Lexington and Cook was formed in Illinois at the time of Hoegemeir’s interview with Lexington. Alternatively, it says that this action arose out of Lexington’s activities in Illinois because the interview with Hoegemeir in Chicago was an essential first step in a process of negotiations that culminated in the hiring of Hoegemeir. The contentions do not persuade. Hoegemeir rejected the offer of employment when he was interviewed in Illinois, and of course no contract was formed. Too, it cannot be said that the Chicago interview was any part in the negotiations that led to the hiring of Hoegemeir. The positions involved were different. Hoegemeir rejected the position of field sales manager. He later was hired as national sales manager, but there is no indication whatever in the record that the interview had any influence on his hiring. It was in the fall of 1976 that Runza asked McIntosh, who was then operating her own agency, for prospects to fill the position of national sales manger. There was no communication between Runza and Hoegemeir until McIntosh referred his name to Lexington in behalf of her own agency.

Lexington argues vigorously that the interview in Chicago should not be given any consideration whatever, because the fact that there had been an interview was not revealed to the trial court until after the court had entered summary judgment. We have assumed the interview’s pertinency if only for the sake of argument and find it to be without significance here.

Apart from the long-arm statute, jurisdiction may be acquired under the “doing business” rule. If the nonresident corporation is doing business in the forum State it will be considered to have consented to being sued in that State. That rule developed before the Supreme Court adopted the liberal minimum contacts standard in International Shoe. In Pennoyer v. Neff (1878), 95 U.S. 714, 24 L. Ed. 565, the Supreme Court had held that, consistent with due process, a State could not acquire in personam jurisdiction over a nonresident defendant by any means other than through personal service in the forum State, unless the defendant had consented to jurisdiction or appeared in the suit. See generally Murchison, Jurisdiction Over Persons, Things and Status, 41 La. L. Rev. 1053, 1053-68 (1981); Annot., 94 L. Ed. 1167 (1949).

The “doing business” approach, however, developed and was accepted as a means to obtain personal jurisdiction over foreign corporations. This court held that a foreign corporation doing business in Illinois was constructively present in this State and its assent to service upon an agent in Illinois could be implied under those circumstances. The corporation, therefore, could be served personally in Illinois in the same manner as a domestic corporation could be. (See American Hide & Leather Co. v. Southern Ry. Co. (1923), 310 Ill. 524; Booz v. Texas & Pacific Ry. Co. (1911), 250 Ill. 376.) If the foreign corporation was not doing business in Illinois, even personal service upon an officer of the company who was physically present in this State as a visitor, for example, did not confer jurisdiction over the .nonresident. (Edwards v. Schillinger (1910), 245 Ill. 231, 240. See Midland Pacific Ry. Co. v. McDermid (1878), 91 Ill. 170.) The “doing business” rule was applied in other States as well. The rule was held to satisfy the jurisdictional requirements announced in Pennoyer. That was not unexpected, as the court in Pennoyer approved the practice of considering a foreign corporation doing business in a State to have consented to be sued in that State. 95 U.S. 714, 735-36, 24 L. Ed. 565, 573. See International Harvester Co. v. Kentucky (1914), 234 U.S. 579, 58 L. Ed. 1479, 34 S. Ct. 944; Philadelphia & Reading Ry. Co. v. McKibbin (1917), 243 U.S. 264, 61 L. Ed. 710, 37 S. Ct. 280.

The doing-business standard, of course, continues to be used in determining questions of jurisdiction over foreign corporations not licensed in Illinois (e.g., St. Louis-San Francisco Ry. v. Gitchoff (1977), 68 Ill. 2d 38), as it was early recognized that the doctrine was not preempted by the long-arm'statute. (See Lindley v. St. Louis-San Francisco Ry. Co. (7th Cir. 1968), 407 F.2d 639.) In fact, it complements the long-arm statute because if a foreign, unlicensed corporation is found to be doing business in this State, it is amenable to the jurisdiction of courts of Illinois even for causes of action not arising from the defendant’s transactions of business in Illinois. See Hertz Corp. v. Taylor (1959), 15 Ill. 2d 552.

In Green v. Advance Ross Electronics Corp., from which we have quoted above, we held that the long-arm statute was not to be equated with the standard of due process. Here we will not equate the doing-business standard with the mere satisfaction of the minimum-contacts requirement for due process. To do so would render the long-arm statute and the doing-business standard meaningless to many corporate defendants, and it would tie our jurisdictional rules to the changing standards for due process.

Examining Lexington’s activities according to the doing-business test as applied under decisions of this court, we hold that on the record before us Lexington is not amenable to jurisdiction in Illinois.

There is no all-inclusive test for determining whether a foreign corporation is doing business in this State. In Pembleton v. Illinois Commercial Men's Association (1919), 289 Ill. 99, 104, appeal dismissed (1920), 253 U.S. 499, 64 L. Ed. 1032, 40 S. Ct. 483, this court stated that, in general, the term means that the corporation is conducting business in Illinois “of such a character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of the district in which it is served and in which it is bound to appear when a proper agent has been served with process.” That rule has consistently been held as requiring activities greater than solicitation by employees who have only authority to solicit business in this State. St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38; Hertz Corp. v. Taylor (1959), 15 Ill. 2d 552, 555.

Jurisdiction has been found, however, in a variety of other activities. A foreign railroad with no Illinois trackage was held to be doing business in St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, because it maintained an office in Chicago staffed with employees who solicited business, and another employee spent 60 to 80% of his working time in Illinois coordinating the movements of the defendant’s railcars. In Hertz Corp. v. Taylor (1959), 15 Ill. 2d 552, a foreign steamship company was held to be doing business where it maintained a Chicago office in which employees solicited business and sold tickets for the defendant’s ships. Earlier, in American Hide & Leather Co. v. Southern Ry. Co. (1923), 310 Ill. 524, this court upheld jurisdiction over a foreign railway company which operated 140 miles of track in Illinois.

More recently, in Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, cert. denied and appeal dismissed (1980), 444 U.S. 1060, 62 L. Ed. 2d 738, 100 S. Ct. 992, an alien corporation was held to be amenable to Illinois jurisdiction in a product liability action, because the defendant’s products regularly entered Illinois in substantial amounts. In Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857, the defendant manufacturer was held to be present and doing business because it maintained a contractual relationship with an Illinois distributor who, subject to inspection by the defendant, was authorized to sell the defendant’s products and required to service its products, whether or not they were sold by the distributor. The defendant cosponsored an Illinois sales program, and its products had been advertised in this State for at least five years.

In the foregoing cases, there was a regularity of activities in Illinois that is absent in the case of Lexington. (See St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 45 (personal jurisdiction justified because defendant’s activities within Illinois “constituted sufficient substantial business”); Hertz Corp. v. Taylor (1959), 15 Ill. 2d 552, 554 (assertion of jurisdiction was permissible because facts showed a sufficient “course of business here”); Annot., 12 A.L.R.2d 1439, 1442 (1950) (it appears that isolated or sporadic purchases in the forum by a foreign corporation are not sufficient to constitute doing business for jurisdictional purposes).) Mr. Justice Cardozo, while serving on the New York Court of Appeals, defined “doing business” for jurisdictional purposes as the corporation’s operating within the State “not occasionally or casually, but with a fair measure of permanence and continuity.” Tauza v. Susquehana Coal Co. (1917), 220 N.Y. 259, 267, 115 N.E. 915, 917. E.g., McGowan v. Smith (1981), 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321 (several visits to forum by defendant’s representatives to conduct marketing research is not doing business); Meunier v. Stebo, Inc. (1971), 38 App. Div. 2d 590, 328 N.Y.S.2d 608 (periodically sending corporate officer into forum on corporate business is not doing business in the forum).

We consider that Lexington was not doing business in Illinois through having an exhibit at three trade shows in Chicago, and its fruitless interview. We note that while Lexington received orders totaling less than $50,000 during each of those trade shows, the record does not show the size of the individual orders. There is no indication whether the persons who ordered merchandise were Illinois residents and that Lexington merchandise was introduced into Illinois. The independent manufacturer’s representative resides in Illinois. The scant references to him in the record are inadequate for us to conclude that because of its association with him Lexington should be deemed to have submitted itself to our jurisdiction for all causes of action which might arise in Illinois. In essence, the record contains a statement that the representative sells Lexington’s merchandise along with products of other manufacturers. The record does not show how much has been sold through him, and there is no indication of whether the representative is authorized to contract for Lexington or whether he merely transfers orders to Lexington for acceptance. There is no indication of the control, if any, Lexington has over this representative. A Lexington employee accompanied him a few times,' but for what purpose the record fails to show. Nor does it disclose what the Lexington employee did on those occasions.

For the reasons given, the judgment of the appellate court, which reversed the circuit court’s judgment, is affirmed.

Judgment affirmed.


text:
    (No. 54654.
    THE COUNTY OF COOK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stanley Florcek, Appellee).

      Opinion filed December 4, 1981.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Leonard N. Foster, Assistant State’s Attorneys, and Carol Brzykcy, law student, of counsel), for appellant.
    Jordan Teplitz, of Chicago, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The body of Helen Florcek, a matron at the Cook County jail, was found in her apartment with three gunshot wounds, two in the abdomen and one in the head. The shots were fired at close range from her own service revolver, which was found under her body.

Approximately eight months prior to her death, Mrs. Florcek, while at work at the jail, slipped and fell, breaking her right arm. When the cast was removed several months later, her radial nerve was found to be injured, causing partial paralysis of her arm, hand, index finger, and thumb.

Stanley Florcek, the decedent’s husband, filed a claim with the Industrial Commission for death benefits under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). He claimed that his wife’s death was a suicide and that it was attributable to the severe depression and pain she suffered from as a result of the injury to her arm. The State’s Attorney, representing Mrs. Florcek’s employer, Cook County, argued that Mrs. Florcek was physically incapable of pulling the trigger of her revolver due to the paralysis in her arm and was more likely the victim of foul play.

Two issues were before the Commission: whether Helen Florcek’s death was a suicide, and, if so, whether the suicide was a product of severe depression and pain from which she suffered as a result of her injury. Reversing the arbitrator, the Commission found that Mrs. Florcek’s death was a suicide and that it was caused by the pain and depression resulting from her accident. It, therefore, awarded benefits to Mr. Florcek. The circuit court of Cook County confirmed that decision. Its decision is consistent with Harper v. Industrial Com. (1962), 24 Ill. 2d 103, in which this court held that benefits should be awarded when a compensable injury gives rise to pain and depression that drive an employee to suicide several months after the injury was suffered.

It is the responsibility of the Industrial Commission to decide questions of fact and causation. (O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249, 253.) The sole question before this court is whether the Commission’s findings of fact were against the manifest weight of the evidence. See Seiber v. Industrial Com. (1980), 82 Ill. 2d 87; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31.

The Industrial Commission had before it the testimony of the Chicago police department homicide investigator who had investigated the case. In his opinion, based on the position of the body, the powder burns around the wounds, and the fact that the apartment was locked, with no evidence of foul play, Mrs. Florcek’s death was a suicide, despite the controversy over whether she had the physical ability to pull the trigger. Although expert medical testimony conflicted on whether Mrs. Florcek’s right hand was sufficiently functional to use her gun, the Commission clearly had sufficient evidence to find that it was and therefore to find that, based on the homicide investigator’s testimony, her death was a suicide. Curiously, although the State’s Attorney argues that this was a homicide, the records of that office reveal no criminal investigation of the death either at the time it occurred or when, in this proceeding, the State’s Attorney introduced evidence that Mrs. Florcek would have had difficulty shooting herself because of the paralysis she was suffering from.

Mr. Florcek testified that the pain was so great that his wife was unable to eat or to sleep at night; she cried often, and on one occasion she told him that she wanted to die. Testimony from a psychiatrist who saw Mrs. Florcek the day before she died corroborated Mr. Florcek’s testimony that his wife was extremely distraught over the pain and paralysis in her arm. The doctor further stated that she appeared to be very angry with her employer, her husband, and her doctors. She thought they did not believe that she was in pain.

Mr. Florcek’s psychiatric expert, responding to a hypothetical question based in part on the above evidence of Mrs. Florcek’s injury and state of mind, diagnosed her condition as severe depression brought on by the trauma of her accident. He testified that the type of illness Mrs. Florcek had often results in suicide. On this evidence and other evidence, the Commission found that Mrs. Florcek’s death could be traced to her injury and the emotional condition she suffered from as a result of it.

We hold that the Industrial Commission’s findings are not against the manifest weight of the evidence and thus affirm the circuit court.

Judgment affirmed.


text:
    (No. 54345.
    NICK LACHONA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mulivihill Brothers Motor Service, Inc., et al., Appellees).

      Opinion filed December 4, 1981.

      Whelan, Truschke & Associates, P.C., of Arlington Heights (James R. Truschke, of counsel), for appellant.
    William J. Catena and Ruth E. Stelzman, of Chicago, for appellee Mulivihill Brothers Motor Service, Inc.
    Richard J. Leamy, Jr., of Wiedner and McAuliffe, of Chicago, for appellee Central Steel and Wire Company.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This is a direct appeal from the circuit court of Cook County pursuant to Supreme Court Rule 302(a) (73 Ill. 2d R. 302(a)) involving a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The arbitrator found that petitioner, Nick Lachona, was entitled to receive from respondents, Mulivihill Brothers Motor Service, Inc. (hereinafter Mulivihill) and Central Steel and Wire Company (hereinafter Central Steel) $195.45 per week for life as compensation for his injuries, which rendered him completely disabled and wholly and permanently incapable of work.

On review, the Industrial Commission held that petitioner was temporarily totally incapacitated for a period of 38 weeks, but that petitioner’s permanent disability was to the extent of 60% and awarded him $195.45 for 300 weeks, rather than that amount for life, plus his necessary medical expenses. In addition, the Commission ordered that Central Steel be dismissed from the action as a respondent. The circuit court of Cook County confirmed the decision of the Industrial Commission. Petitioner appeals from that decision.

Respondent Mulivihill filed a motion to dismiss for failure to comply with Supreme Court Rule 303 (73 Ill. 2d R. 303) alleging that: (1) notice of appeal was not filed with the clerk of the circuit court within 30 days of the entry of the final judgment appealed from, pursuant to Supreme Court Rule 303(a) (73 Ill. 2d R. 303(a)), and that (2) a copy of notice of appeal was not served on respondent Mulivihill within 7 days of filing as required by Supreme Court Rule 303(d) (73 Ill. 2d R. 303(d)). The motion was taken with the case.

As to the first allegation, claimant attached to his answer to the motion to dismiss a copy of the notice of appeal filed November 14,1980, in the circuit court. The decision of the circuit court having been rendered on October 15,1980, the notice of appeal was timely filed.

As to the second allegation of respondent, claimant attached a copy of proof of service of filing, also file stamped November 14,1980, which was directed to Central Steel, originally the other respondent in this action. There was no proof offered that Mulivihill was also served, however.

On April 28,1981, we granted leave for Central Steel to withdraw as a party defendant in this case. Leave for Central Steel to withdraw was granted based on a written agreement between Mulivihill and Central Steel which was submitted to the court. The agreement provided that Mulivihill will “indemnify and hold harmless Central Steel and Wire Company from any judgment, finding or assessment of liability arising under the Workmen’s Compensation Act of the State of Illinois for injuries made by Nick Lachona

The situation became thus: Central Steel, which was properly served with notice of appeal was allowed to withdraw from the case; Mulivihill, which was not served with notice of appeal, became the sole respondent. Our decision in Echols v. Olsen (1976), 63 Ill. 2d 270, addressed the question of the effect of failure to properly serve notice of appeal on a party. In that case, we held that “a failure to serve a copy of a notice of appeal upon an opposing party does not deprive the court of appeal of jurisdiction.” (Echols v. Olsen (1976), 63 Ill. 2d 270, 274-75.) The only jurisdictional step in appealing a final judgment of a circuit court is filing the notice of appeal. Echols v. Olsen (1976), 63 Ill. 2d 270, 275.

Although Echols involved an appeal to the appellate court, the same result applies with respect to direct appeals to this court under Supreme Court Rule 302(a) (73 Ill. 2d R. 302(a)). See Brady v. Industrial Com. (1970), 45 Ill. 2d 469, 472.

The reasoning underlying such a result is that a respondent who is allowed to file a brief and argue orally has not been prejudiced because of the failure to serve him with notice of appeal. Echols v. Olsen (1976), 63 Ill. 2d 270, 275; Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434; People v. Cassidy (1978), 67 Ill. App. 3d 43, 45.

In the instant case, although respondent Mulivihill, in its motion to dismiss, alleges that it was prejudiced by not being served with notice of appeal, it fails to explain in what way the prejudice occurred. The record discloses that between March 24, 1981, and June 18, 1981, respondent Mulivihill was granted four extensions of time in which to file its brief, and the oral argument was heard on October 13, 1981. Hence, the motion to dismiss is denied.

This appeal arises out of injuries suffered by Nick Lachona on July 31, 1975, and again on August 1, 1975, while working as a driver of a flatbed steel-hauling truck. On the day of the injury petitioner reported to work as usual and was assigned a truckload of steel to deliver. The load consisted of pieces of steel of varying sizes which were kept immobile on the flatbed deck of the truck by means of a binding device which could be tightened by the use of chains to secure the load. The load had shifted as he drove, so petitioner stopped the truck and went around to the rear of it to tighten the binders on the load. As he was on the bed of the truck, rebinding the load, the binder slipped on the chain links and he was thrown to the bed of the truck. His right knee and right side struck the bed of the truck in the fall. He experienced severe pain at once. After resting for approximately one-half hour, he drove the truck back and went home for the day. He was treated that evening by Dr. McFarland, a chiropractor. He returned to work the following day, still in pain. He drove the same kind of steel-load-carrying truck and was reinjured when he attempted to readjust the load. After resting in the truck, he called the dispatcher and said that he could not work any more that day. He again received treatment from Dr. McFarland.

There are two issues raised on appeal: (1) whether the order allowing Central Steel to withdraw as a party defendant was proper, and (2) whether the employee sustained his burden of proving permanent and total disability.

With respect to the first issue, section 1 of the Act acknowledges the binding effect of an agreement between the borrowing employer and the loaning employer as to liability under the Act. (Ill. Rev. Stat. 1977, ch. 48, par. 138.1(a)(4).) In this case, petitioner reported to Central Steel at the beginning and end of each working day. There he received a truck, a load to deliver, and certain papers. Petitioner received his paychecks from Mulivihill and also his work and vacation schedule. It was to Mulivihill that he took the trucks for repair. The written agreement between Mulivihill and Central Steel provided that a workmen’s compensation award would be the responsibility of Mulivihill. The Act provides that such agreements as to liability will be respected, and so the order allowing Central Steel to withdraw was proper.

With respect to the second issue, the evidence submitted to the arbitrator was conflicting. Although the petitioner saw several doctors in connection with the treatment of his injury, he saw two physicians specifically for the purpose of evaluation. Dr. Samual D. Willens, a specialist in orthopedic surgery, was a witness for the petitioner. He diagnosed petitioner’s injury as “degenerated L-4, 5 disc with some mild degenerative changes.” The respondent’s physician, Dr. Audley Loughran, also an orthopedic surgeon, reached an essentially consistent conclusion with respect to this diagnosis: “degenerative disc disease and degenerative arthritis of the lumbar spine.” There is, thus, no question that the petitioner was injured while at work or as to the nature of his injuries. The two expert witnesses do disagree, however, with respect to the degree of disability resulting from petitioner’s injuries.

Dr. Willens testified that in his opinion, petitioner’s condition was permanent. When asked to give his opinion as to the type of work the petitioner could do, he responded:

“He could do very limited work. He could not sit or stand for any period of time. His sitting would be limited to twenty to thirty minutes with the back of this type. No lifting, no heavy work. Something very light. aoa He can walk ten to fifteen minutes at a time. No more than a block without experiencing discomfort.”

When the respondent’s physician, Dr. Loughran, was asked whether or not petitioner could work at some sort of employment, he responded:

“I think that as of July, 1977 I felt he could do some work, that is, drive a truck. I would basically put perhaps some weight lifting restriction because of the history of back problems and sciatica. I would say not to lift over 50 or 75 pounds. *“*1 think he could drive [a truck]. He could probably sit for long periods of time, probably four, six hours at a time. * * * I would say most probably he could walk about, I am sure without any difficulty, eight blocks, eight city blocks.”

Although on cross-examination, Dr. Loughran testified that it might be painful and more difficult for a person with such back injuries to drive a flatbed steel truck, he did not indicate that petitioner would be unable to drive any kind of truck. Nor did petitioner’s examining physician, Dr. Willens, testify that he was wholly unable to work.

This court has held that an employee is totally and permanently disabled within the meaning of the Workmen’s Compensation Act when he is unable to make some contribution to industry sufficient to justify payment to him of wages. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259; Cebulski v. Industrial Com. (1971), 48 Ill. 2d 289, 293.) A person is totally disabled when he cannot perform any services except those which are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489.) If an employee can take up some form of employment of the nature indicated in these cases without seriously endangering his health or life, he is not entitled to total and permanent disability compensation. A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 488; Jefferson Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 85, 92-93.

The determination of the degree of disability is a question of fact to be resolved by the Industrial Commission. Where, as in this case, there are conflicting medical opinions on the question of the degree of disability, the determination of the Commission should not be set aside on review unless against the manifest weight of the evidence. Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 260; City of Chicago v. Industrial Com. (1974), 59 Ill. 2d 284, 288.

In this case the Commission concluded that the petitioner had not sustained his burden of proving that he was totally and permanently disabled within the meaning of the Workmen’s Compensation Act. While the expert witnesses disagreed with respect to the amount of activity of which petitioner is now capable, a finding by the Commission of 60% permanent disability is not against the manifest weight of the evidence. Accordingly, we affirm the decision of the circuit court of Cook County.

Judgment affirmed.


text:
    (No. 54346.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. OLUBUKOLA A. OGUNSOLA, Appellant.

      Opinion filed December 4, 1981.

      Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Herbert Lee Caplan, Melbourne A. Noel, Jr., Michael B. Weinstein, and Jonathan Strauss, Assistant Attorneys General, of Chicago), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

On November 15, 1979, a McLean County jury convicted Olubukola A. Ogunsola of deceptive practices under $150. (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B)(d).) The appellate court affirmed the conviction. (91 Ill. App. 3d 26.) On appeal, defendant contends that his conviction should be reversed because the trial court erroneously gave the jury an instruction that incorrectly defined the offense of deceptive practices, in that it omitted an essential element of that offense.

Testimony at the trial showed that on February 27, 1979, the defendant, a Nigerian exchange student, brought his 1972 Volkswagen Beetle to Mitch’s Import Auto Center in Normal to have the brakes adjusted and the shock absorbers replaced. When defendant returned the next day to pick up his car, Fred Mitchell, the owner, presented him with a $286.80 repair bill. The record is unclear as to whether defendant questioned the amount of the bill at the time, or whether Mitchell told him that he could not have his car until it was paid. Defendant gave Mitchell his check for the full amount of the bill.

Kim Ketchum, who was called as a witness on behalf of the People and who was bookkeeping supervisor of the Prairie State Bank on February 28, 1979, the date of the defendant’s check for the repairs to his auto, gave somewhat imprecise testimony concerning the status of the balance in defendant’s checking account at the time defendant wrote and delivered his check to Fred Mitchell for the repairs to his car. We need not try to sort out these facts because defendant conceded in his appellate court brief that when he wrote the check for $286.80, the full amount of the bill, he knew he had insufficient funds in his bank to honor the check and that at that time he intended to stop payment on the check.

Kenneth Winn, a local mechanic, testified for the defendant that a reasonable charge for the parts and work done on defendant’s car was about $147. Defendant did not testify.

The trial court gave the jury the following instruction: “To sustain the charge of deceptive practices under $150, the State must prove the following propositions:
First: that the defendant, with intent to pay for the labor and property of Fred Mitchell, delivered a check upon a bank; and
Second: that the defendant knew the check would not be paid.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find, from your consideration that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

This instruction is a modified form of Illinois Pattern Jury Instruction, Criminal, No. 13.24, Issues in Deceptive Practices (1968). Defendant asserts that the instruction incorrectly states the law because it omits any reference to the intent to defraud, an essential element of the offense of deceptive practices.

We agree with defendant that the instruction was defective. Section 17 — 1 of the Criminal Code of 1961 provides:

“A person commits a deceptive practice when, with intent to defraud:
« # »
(d) With intent to obtain control over property or to pay for property, labor or.services of another he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B).

As originally enacted, section 17 — 1 did not refer to the intent to defraud. The legislature in 1967 amended the section to insert “with intent to defraud” in the introductory phrase. (Ill. Ann. Stat., ch. 38, par. 17 — 1, Historical Note, at 233 (Smith-Hurd 1977).) The reason for the omission is obscure; it may have been due to inadvertence. The 1967 amendment followed an appellate court decision that held that intent to defraud was a necessary element of deceptive practices, despite the lack of explicit reference to it in the statute, as the court could find no evidence that the legislature intended to alter the elements of the offense as defined in the predecessor statute. (People v. Billingsley (1966), 67 Ill. App. 2d 292.) The date of the amendment perhaps explains the omission of the element of intent from the first edition of the pattern instructions, published in 1968. Revised instruction No. 13.24 does contain this element. Illinois Pattern Jury Instructions, Criminal, No. 13.24 (2d ed. 1981).

The committee comments to section 17 — 1 state that “[s]ubsection (d) codifies the former section 255 [(Ill. Rev. Stat. 1959, ch. 38, par. 255)].” (Ill. Ann. Stat., ch. 38, par. 17 — 1, Committee Comments — 1961, at 232 (Smith-Hurd 1977).) That former section required the intent to defraud. By a further amendment in 1978, the General Assembly added a definition of the intent to defraud:

“To act with the ‘intent to defraud’ means to act wilfully, and with the specific intent to deceive or cheat, for the purpose of causing financial loss to another, or to bring some financial gain to oneself. It is not necessary to establish that any person was actually defrauded or deceived.” (Ill. Ann. Stat., ch. 38, par. 17 — 1 (Smith-Hurd Supp. 1981).)

It is clear that the intent to defraud is an essential element of the offense of deceptive practices. It is equally clear that the intent to defraud is a mental state distinct and different from the mental state of knowledge that the check will not be paid by the depository, also required by the section. It is quite possible to possess the one mental state without the other, as when one consciously writes a check for more than the balance in one’s account, intending to deposit funds to cover it, or agreeing with the payee that the latter not present it immediately but hold it as a note. (See People v. Billingsley (1966), 67 Ill. App. 2d 292; People v. Balalas (1929), 334 Ill. 444 (decided under the statute which was the predecessor to section 255, which is codified by the current section 17 — 1(d).) In such cases there is no intent to defraud, nor can it be inferred from the issuer’s knowledge that his check is not good. Similarly, one cannot infer that because payment on a check was later stopped, the drawer issued it intending to defraud the payee. Especially where there is a dispute whether a debt is owed, such an inference seems contrary to common sense. (See Pratt v. Kilborn Motors, Inc. (1977), 48 Ill. App. 3d 932.) The jury should have been instructed that to find defendant guilty of a deceptive practice it must find that — in addition to issuing a check with the intent to pay for Mitchell’s labor and property, and with knowledge that it would not be paid — the defendant had the intent to defraud.

Since defendant did not object at trial, it is necessary to determine whether the defect in the instruction is a substantial one, rising to the level of plain error, which can be noticed by this court. Ordinarily, if errors in instructions are not objected to at trial, they are waived on appeal; however, “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” 73 Ill. 2d R. 451(c).

The interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure the fundamental fairness of the trial. (People v. Roberts (1979), 75 Ill. 2d 1, 15; People v. Parks (1976), 65 Ill. 2d 132, 137.) Fundamental fairness includes, among other things, seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. (People v. Roberts (1979), 75 Ill. 2d 1, 13.) The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. (People v. Jenkins (1977), 69 Ill. 2d 61, 66-67; People v. Davis (1966), 74 Ill. App. 2d 450; People v. Lewis (1969), 112 Ill. App. 2d 1.) It is of the essence of a fair trial that “the jury not be permitted to deliberate a defendant’s guilt or innocence of the crime charged without being told the essential characteristics of that crime.” People v. Lewis (1969), 112 Ill. App. 2d 1, 11.

In People v. Jenkins we reversed a conviction because the defendant might have been convicted on the basis of a jury instruction from which an essential element of the crime was omitted. (People v. Jenkins (1977), 69 Ill. 2d 61, 67.) In the case at hand, we cannot say that a properly instructed jury might not have acquitted the defendant, based on a lack of proof beyond a reasonable doubt that he intended to defraud Mitchell. (People v. Joyner (1972), 50 Ill. 2d 302, 307.) The principal contested issue relevant to defendant’s culpability was whether he had the intent to defraud. We think that fundamental fairness required that the jury be instructed on this issue.

Jury instructions that incorrectly define the offense cause prejudice to a criminal defendant far more serious than instructions that do not include a definition of a term (People v. Underwood (1978), 72 Ill. 2d 124 (failure to define “reasonably believes”)), or that omit an instruction on a collateral issue (People v. Parks (1976), 65 Ill. 2d 132 (failure to instruct on weight to be given accomplice testimony)). The complete omission of an issue as central to the criminal trial as a part of the definition of the crime charged deprives the jury of the guidance it must have properly to decide the case. (People v. Jenkins (1977), 69 Ill. 2d 61, 66; cf. People v. Parks (1976), 65 Ill. 2d 132, 138.) Our recent holding in People v. Tannenbaum (1980), 82 Ill. 2d 177, is consistent with this view. There, the jury was given all instructions essential to determine the defendants’ guilt or innocence of theft; the lack of an instruction on the element of the value of the property stolen did not affect that determination. Further, in Tannenbaum there was no dispute as to the value of the property. Here the omission removed from the jury’s consideration a disputed issue essential to the determination of defendant’s guilt or innocence.

The appellate court, on the basis of our holding in People v. Cook (1980), 81 Ill. 2d 176, correctly reversed the circuit court’s order forfeiting defendant’s bond to reimburse the county for the services of the public defender. People v. Ogunsola (1980), 91 Ill. App. 3d 26, 32.

Accordingly, that portion of the appellate court’s judgment concerning the bond is affirmed, and that portion of the appellate court’s judgment affirming defendant’s conviction is reversed. The judgment of the circuit court of McLean County is reversed, and the cause is remanded to that court for a new trial.

Appellate court affirmed in part and reversed in part; circuit court reversed; cause remanded.


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    (No. 54188.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID WITHERS, Appellee.

      Opinion filed December 4, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and James Benson, State’s Attorney, of Paxton (Robert J. Biderman and Denise M. Paul, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

David Withers was convicted of theft and of obstructing the performance of a peace officer (Ill. Rev. Stat. 1979, ch. 38, pars. 16 — 1, 31 — 1) by a jury in the circuit court of Ford County and was given a sentence of 364 days. The appellate court (89 Ill. App. 3d 116) reversed and remanded for a new trial, holding that Withers had been denied a fair trial by the trial judge’s refusal to allow defense counsel to argue his motion for a directed verdict at the close of the People’s case. We granted the State’s petition for leave to appeal.

The defendant’s trial lasted only a day. Before the luncheon recess, the State had called three witnesses and had rested its case. Its principal witness was a Paxton police officer who testified that he saw Withers remove $1.40 from a cash box located outside a drug store. Patrons buying newspapers before the store opened for business deposited money in the box through a slit at the top. The officer testified that Withers ran into a hotel when ordered to halt, and that he overtook and subdued the defendant when he resisted arrest.

After the State had presented its case, there was this exchange between defense counsel and the court.

“MR. WILSON: The State has rested, has it not? Does the court wish to entertain motions for directed verdict at this time or would it prefer to wait until after the lunch hour?
THE COURT: Do you feel the need for extended argument?
MR. WILSON: No Sir.
THE COURT: The record may show that the motion is made and is denied.
MR. WILSON: That was quite a short argument, judge.
THE COURT: I think it was appropriate to the case.”

The defendant did not take the stand and did not present any witnesses.

The appellate court held that our procedural law affords the defense a right to argue a motion for a directed verdict and that Withers was deprived of a fair trial. Although the appellate court did not consider the right to argue the motion to be a constitutional right, the defendant contends that the trial judge’s summary ruling violated his sixth amendment right to the effective assistance of counsel. In another argument, which the appellate court rejected, the defendant argues that the prosecution’s rebuttal constituted an improper reference to his decision not to testify.

We see no merit in the contention that the trial court’s denial of argument violated the constitutional assurance of the effective assistance of counsel. The only authority the defendant cites that recognized a sixth amendment right to argue at trial is Herring v. New York (1975), 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550. There, the court held that the right to the assistance of counsel includes a right of the defense to present closing argument in both bench and jury trials. The decision was based upon the court’s recognition that summation was among the most important functions in advocacy at the criminal trial. Because “the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary fact-finding process,” the court held that a judge could not deny defense counsel an opportunity for closing argument. 422 U.S. 853, 857, 45 L. Ed. 2d 593, 598, 95 S. Ct. 2550, 2553.

Whether there must be opportunity to argue a motion for a directed verdict is distinguishable. Unlike the right of summation, which the Herring court traced to early colonial trial procedure (422 U.S. 853, 861 n.12, 45 L. Ed. 2d 593, 600 n.12, 95 S. Ct. 2550, 2555 n.12), the right to move for a directed verdict in a criminal case is of comparatively recent origin. (Comment, Judgments of Acquittal: The Right to a Non-Jury Trial, 24 U. Chi. L. Rev. 561 (1957).) In Illinois the right was recognized in the 1930’s. (Compare People v. Logan (1934), 358 Ill. 64, and People v. Bruner (1931), 343 Ill. 146, with People v. Zurek (1917), 277 Ill. 621.) Also, the court in Herring noted that its decision concerned only the right to argument at the conclusion of the evidence, and it expressly stated that nothing in the opinion should be understood as implying the existence of a constitutional right to oral argument at other stages in the trial or on appeal. (422 U.S. 853, 863 n.13, 45 L. Ed. 2d 593, 601 n.13, 95 S. Ct. 2550, 2556 n.13.) We have found no decision that extended the holding of Herring to argument upon a motion for a directed verdict. On the contrary, courts have rejected claims founded on the sixth amendment of a right to argue at stages other than the time for summation. See, e.g., Ogle v. Estelle (5th Cir. 1981), 641 F.2d 1122 (oral argument on appeal); Brenneman v. State (1978), 264 Ark. 460, 573 S.W.2d 47, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2863 (argument at close of hearing on motion to suppress); Candler v. State (1977), 266 Ind. 440, 363 N.E.2d 1233 (reservation of opening argument until close of State’s case).

The appellate court here, however, said that it found a right to argue the motion under our criminal procedure. The Code of Criminal Procedure of 1963 provides:

“When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.” (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(k).)

Although this language does not expressly confer a right to argue the motion, the appellate court found such a right from reading the statute in conjunction with case law and one of the standards of judicial conduct promulgated by this court.

The decisions the court relied upon were People v. Manske (1948), 399 Ill. 176, in which this court observed that it was generally “advisable” for a judge to permit final argument in a bench trial though the judge might not consider it helpful, and People v. Diaz (1971), 1 Ill. App. 3d 988, in which the court held that the defendant had been denied a fair trial because the trial judge seemingly found the defendant guilty three times before the presentation of evidence for both sides had been completed. In addition, the appellate court cited Rule 61(c) (14) (73 Ill. 2d R. 61(c)(14)), which provides that the trial judge “should give careful attention to the arguments of counsel and should avoid unnecessary interruptions.”

We cannot conclude from this that the defendant here had an unqualified right to argue his motion for a directed verdict. Manske, which preceded Herring, involved only closing argument, and it actually held that summation in a bench trial was within the discretion of the court and that a refusal to permit it is reversible error only where it was prejudicial. Diaz, despite broad language concerning the right of an accused to argue, involved the due process right to a trial before an impartial finder of fact, rather than the right of an accused to argue at any particular stage of the trial. Similarly, though Rule 61(c) (14) directs trial judges to consider carefully arguments of counsel, it certainly does not declare there is a right to argue at any particular stage.

The defendant nevertheless contends that common sense indicates that the right to make the motion necessarily includes a right to assert the basis for it. The People respond by pointing out that a motion for a directed verdict is unlike a typical trial motion which requires a statement of the ground for the motion so that the court will be informed. For example, a trial court cannot rule on a request for a continuance or a severance unless it is apprised of the reason for the motion. In those cases it is reasonable to say that the right to make the motion implies the right to state the reasons for it. The, ground for a motion for a directed verdict, on the other hand, is set out in the statute authorizing the motion, and the ruling on it is based on the evidence presented before the trial judge. Thus, the People conclude, the court should have discretion to decide whether argument would assist it in ruling on the motion.

We agree with the People’s position. A motion for a directed verdict asserts only that as a matter of law the evidence is insufficient to support a finding or verdict of guilty. The making of it requires the trial court to consider only whether a reasonable mind could fairly conclude the guilt of the accused beyond reasonable doubt, considering the evidence most strongly in the People’s favor. (United States v. Smith (5th Cir. 1980), 631 F.2d 391, 394-95; People v. Tibbs (1978), 57 Ill. App. 3d 1007, 1012-13; People v. Tatum (1966), 77 Ill. App. 2d 178, 181-82.) The ground for. the motion is set out in the statute, and the judge, of course, is aware of the ground even if argument on the motion is not permitted.

It is true that when no opportunity for argument is afforded, counsel cannot address the court on specific matters which were not set out in the motion. That alone does not persuade us that an absolute right to argue should be recognized. In a long or a difficult case it is reasonable to assume that a trial court would welcome argument. Even in a case where argument is not permitted, the defendant will be able to assert the claim of error in a post-trial motion.

We consider, therefore, that whether argument is to be allowed upon the making of a motion for a directed verdict is a matter within the sound discretion of the trial judge, who has the responsibility of conducting the trial. (See People v. Sally (1959), 17 Ill. 2d 578 (holding that argument on a motion for a new trial is discretionary), cert. denied (1960), 362 U.S. 981, 4 L. Ed. 2d 1017, 80 S. Ct. 1069; People v. Kroll (1924), 315 Ill. 115 (holding that the amount of time to be allotted for summation also rests in the court’s discretion).) A holding denying argument may, of course, be appealed if an abuse of discretion is claimed. See People v. Bridgeforth (1972), 51 Ill. 2d 52, 63-65, appeal dismissed (1972), 409 U.S. 811, 34 L. Ed. 2d 66, 93 S. Ct. 100; People v. Harris (1978), 57 Ill. App. 3d 639, aff'd (1979), 74 Ill. 2d 472.

The defendant says that, in the event that argument is to be considered discretionary, the trial judge’s summary ruling was an abuse of discretion that denied him a fair trial. We do not judge that the trial court’s ruling was arbitrary. The People’s case was presented through the brief testimony of three witnesses. That testimony required only 23 pages in the report of proceedings. The charge was uncomplicated. The motion was made immediately after the prosecution had rested. We cannot say it was an abuse of discretion when the trial court considered it could rule on the motion without the benefit of argument. The court said its ruling was “appropriate to the case.” The defendant could and did file a post-trial motion which he had the opportunity to argue. The post-trial motion set out no fewer than 23 claimed defects in the prosecution’s case. Somewhat ironically, however, the defendant’s attorney expressly waived argument, and the motion was denied.

The appellate court correctly held that there was no improper reference in the prosecution’s remarks to the defendant’s failure to testify. Speaking in rebuttal to the closing argument of the defense, the prosecutor said:

“[Defense counsel] talked about other explanations and I would submit to you, ladies and gentlemen, there has been no evidence. Evidence is somebody sitting in that chair and telling you something. Evidence is items like this that are admitted. That is evidence.”

The appellate court correctly held that these remarks were no more than a statement that the prosecution’s case was uncontradicted. In closing argument the defendant’s attorney told the jury that the general public must have been authorized to make change from the cash box and that the officer who pursued Withers probably didn’t like the defendant and had struck him before he could defend himself. It was not improper for the prosecution to comment that there was no evidence of this. People v. Hopkins (1972), 52 Ill. 2d 1; People v. Mills (1968), 40 Ill. 2d 4.

For the reasons given, the judgment of the appellate court, which reversed the circuit court of Ford County and remanded the cause, is reversed. The judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.