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    People of the State of Illinois, Plaintiff-Appellee, v. Frank Hough, et al., Defendants-Appellants.
    Gen. No. 52,562.
    First District, First Division.
    November 18, 1968.
    Rehearing denied December 11, 1968.

      George J. Cotsirilos and S. Jack Micheletto, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a two-count indictment, the three defendants, Frank Hough, Arthur Larson and Martin Kracht, together with Dominic Mazzone, were charged with murder in violation of chapter 38, section 9-1 (a) (1) and section 9-1 (a) (2), Ill Rev Stats 1963. On motion of the State, a severance for Mazzone was ordered, and he testified for the State. A jury found Hough, Larson and Kracht guilty of voluntary manslaughter, and each was sentenced to the penitentiary for a term of from nine to twenty years. The State then nolle pressed the indictment against Mazzone. The three defendants appeal.

A summary of the evidence shows that on May 25, 1966, Jerome Huey, a 17-year-old Negro boy, while scuffling with four white boys, Hough, Larson, Kracht and Mazzone, was hit on the head by one of the four with a baseball bat. He died from his injuries on May 29, 1966. At the time of the trial (March 1967), the three defendants were 19 years of age. Seventeen witnesses testified for the State; six witnesses, including the three defendants, testified for the defense.

On appeal, the three defendants contend:

I. The trial court erred in submitting a voluntary-manslaughter verdict and instruction to the jury. Either the State’s theory supported a verdict of murder, or the defense theory supported a verdict of not guilty. A voluntary manslaughter verdict was contrary to any interpretation of the evidence.

II. The defendants were denied a trial by an impartial jury in that prospective jurors having scruples against capital punishment were excused for cause.

III. As to defendants Kracht and Larson, the court erred in permitting into evidence post-occurrence inculpating statements by Hough and Mazzone made outside the presence of Kracht and Larson.

IV. The defendants were denied a fair and impartial trial by virtue of the prejudicial conduct of the prosecutors.

A. The Assistant State’s Attorneys attempted to conceal from the jury that the accomplice and principal witness had knowledge of a promise to dismiss the charges against him in return for his testimony.

B. The cross examination of the defendant Kracht was calculated to hold him in disrepute and thus deny him a fair trial.

C. The arguments of the Assistant State’s Attorneys were inflammatory and denied the defendants a fair trial.

The evidence shows that on May 25, 1966, at about 8:30 p. m., the three defendants and Mazzone, with a group of neighbors, were standing near the corner of 24th Place and Laramie in Cicero. All four boys had been drinking beer in an alley, and a car full of Negro boys drove past the defendants, shouted obscenities at them and called them “white bastards.” A few minutes later the defendants saw a Negro boy (Jerome Huey) crossing the street, and defendant Kracht said, “I think this is one of the boys, let’s go talk to him.” Defendant Kracht then took a baseball bat from his automobile “to protect myself in case any of his friends were around.” As the boys proceeded down the street, Mazzone ripped an aerial from a parked car. Mazzone testified that as the four neared Huey, Huey came at him with a radio antenna, and they engaged in a fight, striking at each other with two aerials. While Larson and Huey were wrestling, one of the boys (the evidence is in conflict as to which one) struck Huey on the head with the baseball bat. At this point, Eugene Thompson, a Negro who observed the fight, shouted at the boys and approached them with a board in his hand. The four then ran back to where Kracht’s automobile was parked and drove away.

Dominic Mazzone testified for the State. He stated that when the Negro boy walked past the car Kracht said, “Let’s get that colored guy,” and took a bat from the trunk, and the four boys left the car together. Hough grabbed the bat from Kracht and said, “He’s mine.” Mazzone then took the bat from Kracht and said, “You don’t need the bat, you’ll kill him.” Hough grabbed the bat back from Mazzone and again said, “He’s mine.” Mazzone further said that he and Huey were swinging aerials at each other and as they were “sword fighting at each other,” Larson jumped on Huey, and they both wrestled to the ground. Then Hough told Larson to get out of the way, and Hough hit Huey with the bat, once in the knees and once on the head. At that time a colored boy with a board in his hand said, “Leave that colored boy alone,” and the four ran toward 25th Street, and the bat was still in Hough’s hand. Later, Mazzone and Kracht approached Kracht’s car where several persons were seated, and while Hough and Larson were about 20 feet away, Mazzone said, “Get out of the car, I think we killed him.” Everyone got out of the car, and the four got in and drove away. Mazzone also testified that on the evening of the occurrence he was wearing a white pancake hat.

Eugene Thompson, a State witness, testified that as he approached the scene, he picked up a board and yelled and kept running toward the group, he saw them run behind a filling station, and he kept going until a police officer stopped him.

Police Officer George Bahnick testified that he observed two white youths chasing Thompson, and one of the youths was wearing a small white hat and was carrying a baseball bat. Curtiss Voss, another witness to the event, testified he saw the bat being raised and struck against the victim by a boy wearing a light brown straw hat. Margo Dalessandro, a witness for the State, testified that she had seen the four boys in an alley drinking beer. When the four boys left the car, Kracht was still in possession of the baseball bat, which he had taken from the trunk of his car. About 15 or 20 minutes later, the boys ran back to the car from the south and they still had the bat, but she did not recall which of them was carrying it.

A witness for the defense, Jean Dalessandro, mother of Margo Dalessandro, testified that Hough, Kracht and Mazzone had already left the automobile and had disappeared from sight when she sent Arthur Larson after them, telling him to “go after the boys and stay out of trouble.” She also testified that Mazzone was wearing a straw hat.

Defendant Larson testified in his own behalf. He stated that after the other three boys left in pursuit of Huey, he was standing beside the car talking with Mrs. Dalessandro. She “asked me to go and see what the boys were doing and not to get in any trouble.” As Larson joined the group the fight was about to begin. “Dominic had just gone up to the boy and started hitting him. And the boy hit him. When the boy hit him, he started backing off, when they started swinging at each other. ... I came off the sidewalk into the street and I tried to get between them. I pushed the colored boy with my left hand and Dominic with my right hand and the colored boy started swinging at me and he hit me on the side of the head with the aerial. He hit me once. Then I turned to face him and I grabbed him. I just threw my arms around him. We both fell to the ground. I fell on top of him and we were just wrestling. We were on the ground for just a few seconds. Then I heard somebody say, ‘Get up, get up,’ and I started to get up and the colored boy started to get up with me.”

On cross-examination, he testified that when he got up he saw the bat for the first time, and it was in Mazzone’s hand. Later, Mazzone had the bat when he came back to the car. Larson further testified, “I did not have any other reason to touch that colored boy except that I saw him fighting with Dominic Mazzone. I tried to break up the fight. I had seen Dominic and him fighting with the aerials. Besides that fight, besides my own wrestling, I did not see anyone else touch him at any time. I was paying attention to the second colored fellow who came along with the board in his hand.”

Defendant Kracht testified that when he saw Huey walk past his car, he said to his group, “ T think this is one of the boys, let’s go talk to him.’ I took the bat out of the car to protect myself in case any of his friends were around.”

Defendant Hough testified that as the four boys walked south on Laramie, he said to Kracht, “I don’t think we need a bat.” Kracht then gave him the bat. When they got to 25th Place, Mazzone was fighting with “the colored kid.” Each one of them had an aerial, and they were swinging at each other. Larson ran in between them, and “the colored boy hit him with the aerial.” Larson threw his arms around Huey, and they fell to the ground. Mazzone grabbed the bat and hit the colored boy (Huey) two or three times as he started to get up. A second colored boy came on the scene with a board in his hand, and Mazzone ran after him with the baseball bat. At that time Mazzone was wearing a white straw hat. Later, Mazzone came back to the car and said, “Let’s get out of here, I think I killed him.”

Considered first is the contention that it was reversible error to submit to the jury a voluntary manslaughter instruction and verdict. The record shows that both the State and the defense objected to the giving of the manslaughter instruction. It was a “court’s instruction.” Defendants contend there was no evidence tending to prove manslaughter, and it was error to give such an instruction not based upon any evidence. They assert that if any crime was committed, it was wilful and deliberate murder and, therefore, it was error to give an instruction authorizing a verdict for a lesser offense. (People v. Schultz, 267 Ill 147, 158, 107 NE 833 (1915).) In People v. Newman, 360 Ill 226, 195 NE 645 (1935), it is said (p 231):

“This court has often announced the rule that where the evidence is such that it admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form of verdict on manslaughter is improper, and where given at the request of the People amounts to error requiring a reversal of the judgment if the accused be found guilty of the lesser crime. . . . The rule often stated, and conceded by the People, is that if a sufficient time has intervened between the provocation and the killing to permit the voice of reason to be heard the crime cannot be manslaughter but if any crime is committed it is murder. ... [I]t seems clear to us that there is in the record no evidence upon which a manslaughter verdict could be based. The giving of this instruction was error requiring reversal.”

The defendants argue that the evidence shows that Mazzone actually administered the fatal blows to the victim, and there was no joint undertaking to harm the Huey boy when they left the car, and at the time Mazzone deliberately struck Jerome Huey he was not coming to the aid of any of the three defendants. Defendants assert that the instruction on the subject of manslaughter was an intimation to the jury that if they were not satisfied the defendants were guilty of the only crime the evidence tended to show they could have committed, they might find them guilty of a lesser offense, notwithstanding there was no evidence to sustain the finding of guilty of the lesser offense.

The State concedes that a manslaughter instruction should not be given where the evidence supplies no ground on which the jury might find a defendant guilty of manslaughter. The State argues that it is equally true that in all criminal cases, a jury should be fully instructed on any theory of the law which they might reasonably find to be true from the evidence (People v. Izzo, 14 Ill2d 203, 151 NE2d 329 (1958)), and where there is any evidence in the record which, if believed by the jury, would justify it in finding a killing to be manslaughter rather than murder, the failure to give them instructions on manslaughter is reversible error. In People v. Jones, 384 Ill 407, 51 NE2d 543 (1943), it is said (p 412):

“It is also the rule in homicide cases that if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining that crime should be given. . . .
“To prove murder there must be proof showing that the killing was done with malice aforethought. . . . The common factor found in murder and manslaughter is the unlawful killing of a human being. The presence or absence of malice is the element which distinguishes murder from manslaughter.”

See, also, People v. Canada, 26 Ill2d 491, 187 NE2d 243 (1962), and People v. Papas, 381 Ill 90, 44 NE2d 896 (1942).

Illinois Revised Statutes, c 38, § 9-2, defines voluntary-manslaughter:

§ 9-2. Voluntary Manslaughter.] (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidently causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
(c) Penalty.
A person convicted of voluntary manslaughter shall be imprisoned in the penitentiary from one to 20 years.

As we view this case, it was not error for the trial court to submit to the jury an instruction and verdict on voluntary manslaughter. We think there was ample testimony upon which to find the defendants guilty of voluntary manslaughter. The three defendants had been excited by obscenities shouted at them by some Negro boys. There was testimony that some of them thought that Huey might have been one of them. Kracht wanted to talk with Huey but took along the bat for protection from Huey’s friends. Mazzone testified that he was attacked by Huey with an aerial. Larson was trying to break up the fight when he was hit. Hough was carrying the bat, and when Huey started to get up from the ground someone took the bat and struck Huey. From the time the defendants saw Huey until he was fatally injured, there was no pause in the activities of the participants sufficient to show that the fatal blows were attributable to malice or revenge. There was no “cooling off period” for the “voice of reason to return.” People v. Harris, 8 Ill2d 431, 434, 134 NE2d 315 (1956); People v. Walker, 55 Ill App2d 292, 299, 204 NE2d 594 (1965).

Considered next is defendants’ contention that their right to a trial before an impartial jury and to due process of law was violated because the trial judge, at the State’s request, disqualified for cause those prospective jurors who had religious or conscientious objections or scruples against the infliction of the death penalty. The record includes a stipulation by the parties that upon request of the State “the following question, or the substance thereof, was asked of each and every juror. ‘Do you have any conscientious or religious objections against the infliction of the death penalty in the proper case ?’ ” It was further stipulated that 115 jurors were disqualified for cause, a substantial majority of whom were disqualified at the State’s request when they answered the foregoing question in the affirmative.

Defendants argue by the number of prospective jurors who were disqualified for cause, defendants were deprived of their right to be tried by a jury which was fairly representative of the community in which their trial took place. Defendants point out, “It may be urged by the appellee that since the jury did not fix the penalty at death here, nor did they return even a verdict of murder, that the defendants have no standing to complain. The appellee may also urge that the death penalty qualification of jurors is necessary in order to provide the prosecution with an impartial jury on the issue of punishment. The more fundamental point, however, is that systematic exclusion of jurors having scruples against capital punishment denies the defendants of a similarly impartial jury on the more fundamental issue of guilt or innocence.”

We find no merit in this contention. Witherspoon v. Illinois, 391 US 510 (1967), supplies the guidelines to be used here. On the issue that a jury which had been qualified on the death penalty was more likely to convict, the Supreme Court said (p 516):

“The petitioner contends that a State cannot confer upon a jury selected in this manner the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant’s innocence, accept the prosecution’s version of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he describes as ‘competent scientific evidence that death-qualified jurors are partial to the prosecution of the issue of guilt or innocence.’
“The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In the light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.
“It does not follow, however, that the petitioner is entitled to no relief. For in this case the jury was entrusted with two distinct responsibilities: first, to determine whether the petitioner was innocent or guilty; and second, if guilty, to determine whether his sentence should be imprisonment or death. It has not been shown that this jury was biased with respect to the petitioner’s guilt. But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments.”

Defendants Kracht and Larson next contend that the court erred in permitting into evidence post-occurrence inculpating statements by Hough and Mazzone, made out of the presence of Kracht and Larson. This point is based upon the testimony of State’s witness Henry Salazar, who stated that Mazzone and Hough, after the incident, and out of the presence of Larson and Kracht, said they had just “whipped a Nigger” and “Yeah, we beat him up”; also, that Mazzone said, “I whipped him,” and Hough again said, “Yeah, we beat him up,” out of the presence of Kracht. The court instructed the jury that these statements could not be considered in relation to Larson and Kracht.

Defendants assert that “under no construction of the law could these statements be considered to be in furtherance of the conspiracy alleged by the State, and, therefore, admissible against Kracht, for these statements were allegedly made after the incident.” Defendants cite Krulewitch v. United States, 336 US 440 (1949), where it is said (p 442):

“This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible on the theory that it was made in furtherance of the alleged criminal transportation undertaking.”

Also, United States v. Gordon, 253 F2d 177 (1958), where it is said:

“It is evident that this testimony could not have been other than damaging and prejudicial to Gordon. . . . Numerous cases are cited which have embraced the fanciful theory that any damage done to Gordon was cured by the court’s admonition to the jury. . . . As the late Justice Jackson stated in his concurring opinion in Krulewitch v. United States, 336 US 440 . . . : ‘The naive assumption that prejudicial effects can be overcome by instructions to the jury, . . . all practicing lawyers know to be unmitigated fiction.’ ”

In People v. Patris, 360 Ill 596, 196 NE 806 (1935), it is stated (p 601):

“The court instructed the jury to disregard the testimony as to the admissions of Currin made out of the presence of Patris, but the instruction could not cure the damage already done. While, theoretically, the instruction withdrew the evidence from the consideration of the jury, nevertheless, the prejudicial effect of the testimony inevitably remained.”

On this point we think the guidelines are to be found in United States v. Gardner, 347 F2d 405 (1965), where it is said:

“In a joint trial, incriminating statements made by one defendant which mention another defendant and his conduct are admissible into evidence but only against the declarant. This is also true of a written confession by one defendant which names joint defendants. . . . Such evidence is hearsay but it is admissible as to the declarant under the admission against interest exception to the hearsay rule. . . . The trial court should be careful at the time of the admission of such evidence and by its instructions make clear to the jury that the evidence is limited to the declarant only and is not to be considered as to other defendants.”

As to the cautionary instruction by the court to “make clear to the jury that the evidence is limited to the declarant only and is not to be considered as to other defendants,” we believe it is not necessary to speculate here whether the warning given to the jury was sufficient. The remarks made in Lutwak v. United States, 344 US 604 (1953), apply here:

“In view of the fact that this record fairly shrieks the guilt of the parties, we cannot conceive how this one admission could have possibly influenced this jury to reach an improper verdict. A defendant is entitled to a fair trial but not a perfect one.”

We find no error here.

Next considered is the contention that defendants were denied a fair and impartial trial by the prejudicial conduct of the prosecutors in three areas. The first charge is that the State attempted to conceal from the jury that Mazzone had knowledge of a promise to dismiss the charges against him in return for his testimony.

On the redirect examination of Mazzone by the State, he testified that he was not promised anything by the State for his testimony, and that he had not spoken to any member of the State’s Attorney’s office. Jack G. Stein, Mazzone’s attorney, was called by the defense, and he invoked the lawyer-client privilege with respect to his conversations with his client, Mazzone. Stein testified that an assistant State’s Attorney told him that the charges against Mazzone would be dropped if he became a State’s witness, and when the case was over that was what he (Stein) expected. On cross-examination by the State, Stein denied that he had told Mazzone what would happen after he testified. Stein also stated, “Well, again, what I told him, I don’t care to state, Mr. Nellis. I think that is between my client and myself, and he may broadcast it to the world, but I don’t feel that I have the right to tell what I spoke to him and what he spoke to me. You can ask me anything you want about any other question and I will be happy to answer it.”

The defense also points out that in the final argument, the assistant State’s Attorney asked the jury of Mazzone, “But is his testimony worthy of belief? And that, ladies and gentlemen, is your job. Remember that when Mr. Stein testified, he testified that he didn’t tell Mazzone of any deal. That he told him: ‘Your only salvation lies in telling the truth and to pray. And I’ll take care of the rest.’ That’s what Mazzone said on the stand. That’s what Mr. Stein said on the stand.”

The defendants argue that the State attempted to bolster Mazzone’s truthfulness and reliability by having them believe that the only inducement for him to testify was his desire to tell the truth, and that Mazzone was testifying “from a sense of what was right and honorable and, therefore, he was worthy of belief.” Defendants cite Napue v. Illinois, 360 US 264 (1959), where it is said (p 269):

“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.”

And further (p 270) :

“[W]e do not believe that the fact that the jury was apprised of other grounds for believing that [the witness] may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one. . . . Had the jury been apprised of the true facts, however, it might well have concluded that [the witness] had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which [the witness] was testifying.”

Defendants also cite People v. Coddington, 31 Ill2d 468, 202 NE2d 509 (1964), where it is said (p 471) :

“It is impossible to truly assess the effect that a truthful disclosure of King’s interest in testifying on behalf of the prosecution here would have had on the court. . . . [W] here a conviction rests on the testimony of an accomplice who has been promised parole and who was thoroughly impeached, it must be reversed. Defendant was not afforded a fair trial as guaranteed by the constitution and his conviction must be set aside.”

As we examine this record on this point, we find no fundamental concealment from the jury of the relevant facts of the Mazzone deal. The State’s Attorney in closing said, “The price that we pay is the release of one murderer for the conviction of three. There was a conspiracy and they are all guilty. Frank Hough is the one who had the bat, but they are all guilty, Mazzone, as well as the rest.” As argued by the State, there is nothing in the record to indicate that the State knew anyone was lying or that Mr. Stein lied on the stand. These matters were rightfully left for the jury to determine. As said in People v. Nash, 36 Ill2d 275, 284, 222 NE2d 473 (1966):

“There is a material difference in the Napue and Lueck cases and this case, however. In Napue and Lueck the prosecutor did nothing to correct the false testimony and the false testimony was unknown to the defendant at the time of the trial. Here the defendant knew of the false testimony and evidence was presented to show that promises of leniency had in fact been made. Under these circumstances there has not been a denial of due process of law.”

Although it seems unlikely that Mazzone was not informed as to the agreement to dismiss the charges against him in return for his testimony for the State, there is little in the record to support the contrary conclusion. As the jury was informed as to “the price” to be paid for his testimony, we find no prejudicial error here.

The next charge of prejudicial conduct is the assertion by defendant Kracht that his cross-examination by the State was conducted so as to discredit him in the eyes of the jury. On direct examination, Kracht testified that after he was honorably discharged from the Marine Corps, his main business was that of a roofer. He was then cross-examined by the State as to how long he was in the Marine Corps and as to his various employers.

From this it is argued on Kracht’s behalf that the prosecutor attempted by inference to show that because he went from job to job, he was an unstable character. It is also argued that questions regarding the length of his Marine Corps service “left an insinuation that perhaps the prosecutor had some information that the defendant was discharged in other than an honorable manner. The failure of the prosecutor to follow up this line of questioning with any proof that the defendant was in fact discharged dishonorably was highly prejudicial to the defendant Kracht as well as all other defendants who were on trial with him.” It is asserted that his direct examination in this area “far from justified this marked departure from proper cross-examination.” Defendants cited People v. Smith, 74 Ill App2d 458, 221 NE2d 68 (1966); People v. Lewis, 313 Ill 312, 145 NE 149 (1924); and People v. Wilson, 400 Ill 461, 81 NE2d 211 (1948), where the defendant was questioned about being A. W. O. L. from the army, and the court held that such a line of inquiry was improper and stated (p 479) :

“It requires no citation of authority to hold this was highly improper, and doubtless highly prejudicial in a case where the evidence is of a very doubtful character.
“. . . Notwithstanding the court sustained the objection, the fact remains that his reputation as a good citizen was questioned by insinuations in the presence of the jury, through improper questions of the assistant State’s Attorney.”

The record shows an extended conference on this matter between court and counsel, out of the presence of the jury, in which the prosecutor offered to prove that Kracht had lied about his length of service before he was honorably discharged. At that time the court remarked that the State had a right to examine the defendant as to how long he was in the Marine Corps, “but the question as to whether or not he was honorably discharged, unless you can prove he was dishonorably discharged you should keep away from that.” A motion for a mistrial was denied, and following the court’s instruction the prosecutor, in the presence and hearing of the jury, asked defendant Kracht how long he was in the Marine Corps. Again in cross-examination regarding Kracht’s filling out an application for employment, the question was put, “And at that time did you list your military service on the application?” In a conference out of the presence of the jury, the State offered to prove that in the application for employment Kracht stated that “he entered the United States Marines on July 29, 1962, and that he was discharged in September 25, 1964,” and that he had actually served from July 29, 1964, to September 25, 1964, and that “there is no contradiction that he was discharged under honorable conditions.” The court sustained an objection to this line of questioning, and the cross-examination continued as to his activities on the night of the incident.

We have examined defendants’ authorities and because of factual differences we are not persuaded they apply here. Limits on cross-examination rest soundly in the discretion of the trial judge. In People v. McCain, 29 Ill2d 132, 193 NE2d 784 (1963), it is said (p 134):

“Our holdings have vested the trial court with a substantial discretion as to the range of the cross-examination, and we will not interfere with its exercise in the absence of its clear abuse, . . . which is not here apparent.”

In our opinion, the cross-examination of Kracht was within the scope of his direct examination, and we find no abuse of discretion here.

Defendants’ last contention is that the State’s final argument was inflammatory and denied defendants a fair trial. Defendants assert, “Both prosecutors in their closing remarks attempted to inflame and arouse the jury’s passions by making improper and prejudicial remarks to the jury.” Defendants contend the State persisted in urging the jury that the only reason that Huey was killed was because he was “black,” after the court had already sustained an objection to the same line of argument by one of the prosecutors. Defendants also charge that the State resorted to describing the death of Jerome Huey as “savage” on more than one occasion and called his killing an act of “animals.” Defendants also assert the prosecutor tried to prejudice the jury by remarking, “Jerome Huey had a fine chance of making his family proud of him.”

Defendants also contend that the argument for the State was improper — “In attempting to impress upon the jury that Mazzone was the best of the three defendants that the State could have selected to become an accomplice witness, the prosecutor stated: ‘There was a serious decision to be made by the prosecutors in your county. The decision was to let four men walk free or to find out someone who would become an accomplice witness for the State, and so a bargain was made. After thorough study and discussions with the attorney for Mr. Mazzone, that bargain was made.’ ”

Defendants contend that these remarks were completely unwarranted and prejudicial to the defendants, since the prosecutor went outside the record and referred to matters not in evidence. Defendants’ authorities include People v. McLaughlin, 337 Ill 259, 169 NE 206 (1929), where it is said (p 265):

“It often has been held that the effect of remarks calculated to arouse the prejudices of the jurors against the defendant is not removed by striking the objectionable remarks. ... A fair and impartial trial is guaranteed to all persons, whether innocent or guilty, and it is the duty of the courts to uphold this guaranty. . . . An accused person has a right to a trial by jury and the question is not whether a reviewing court may believe him innocent or guilty but what the jury’s verdict would have been had the inflammatory remarks not been made. ... In the present case it cannot be said that plaintiff in error was not prejudiced by the unwarranted remarks of counsel for the prosecution.”

The State argues that the closing argument of the assistant State’s Attorneys was proper and points out, “The defense isolates nine remarks made in almost 100 pages of closing argument” in the 1300 page record. The State asserts the remarks were based on the record, and an objection was sustained to each remark.

We have considered the conduct and the remarks complained of and, although such remarks as “savage” and acts of “animals” have been characterized as improper, we do not believe that the questioned conduct and remarks were so seriously prejudicial as to prevent the defendants from receiving a fair trial. (People v. Mackey, 30 Ill2d 190, 193, 195 NE2d 636 (1964).) We think the guidelines to be used here are set forth in People v. Porter, 11 Ill2d 285, 143 NE2d 250 (1957), where the defendant was referred to as a “savage.” There it is said (p 294):

“Although wide latitude in closing arguments is allowed, and it is not uncommon for a prosecuting attorney to denounce a defendant, and even indulge in invective predicated upon the State’s interpretation of the evidence, nevertheless, this remark does skirt the bounds of propriety. However, in the light of all the facts and circumstances, it cannot, by itself, be deemed to constitute reversible error.”

In our view, the instant case is not close on the facts, and we do not believe the objectionable parts of the State’s final argument, including the reference to Huey’s family, could have affected the verdict of the jury.

It is our conclusion that the defendants received a fair trial without prejudicial error. Therefore, the judgments of the Circuit Court of Cook County are affirmed as to all defendants.

Affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois ex rel. William Hettleman and Thomas A. McManigal, Plaintiffs-Appellants, v. Board of County Commissioners of Cook County, William G. Clark, Attorney General, John J. Stamos, State’s Attorney of Cook County, John W. Daly, President Cook County Law Library Advisory Board and William J. Powers, Jr., Executive Librarian, Cook County Law Library, Defendants-Appellees.
    Gen. No. 53,031.
    First District, First Division.
    November 18, 1968.
    Rehearing denied December 30, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Vincent Bentivenga, Jr., Assistant State’s Attorney, and Edward J. Hladis, Chief of Civil Division, of counsel), and Spray, Price, Hough & Cushman, of Chicago (Robert S. Cushman and Benno P. Ludwig, of counsel), for appellees.
    Thomas A. McManigal and William Hettleman, pro se, of Chicago, appellants.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

William Hettleman and Thomas A. McManigal (hereinafter referred to as plaintiffs) filed a petition pro se in the Circuit Court for leave to file a complaint in quo warranto against the Board of Commissioners of Cook County. The plaintiffs sought to have the Board of Commissioners be required to show by what warrant it claimed to have defrayed the cost and expense of moving approximately 140,000 volumes, records and equipment, constituting the library property of the Chicago Law Institute, during the period of August 22,1966, to September 3,1966; to have paid to the Public Building Commission approximately $22,000 for each month thereafter, as rental for the space occupied on the 29th floor of the Chicago Civic Center in which to house the property of the Chicago Law Institute; and to have paid, since August 22, 1966, wages and salaries to sundry employees of the Chicago Law Institute and others to provide services to the members of the Chicago Law Institute in the use of said library and in the upkeep of the premises on the 29th floor of the Civic Center.

The petition further recited that the plaintiffs requested the State’s Attorney of Cook County and the Attorney General of the State of Illinois to file such a complaint in quo warranto, but that both the State’s Attorney and the Attorney General refused plaintiffs’ request. The plaintiffs further alleged that they were residents and taxpayers of Cook County; that they have been and are members in good standing of the Chicago Law Institute, a not-for-profit Illinois corporation; that they have a pecuniary interest in the said corporation which is being violated contrary to the Constitution of Illinois; and that all of the foregoing acts and expenditures by the Board of Commissioners were direct, wilful and deliberate violations of the Constitution of the State of Illinois and various Illinois statutes.

A motion was filed by the Board of Commissioners and by John W. Daly, President of the Cook County Law Library Advisory Board to dismiss the petition for leave to file a complaint on the grounds that the petition did not comply with section 9 of the Quo Warranto Act (Ill Rev Stats 1967, c 112, § 9) which contains the prerequisites necessary to bring a quo warranto proceeding. A motion to strike the motion to dismiss the petition was filed pro se by the plaintiffs.

On June 5, 1967, an order was entered denying the plaintiffs’ petition for leave to file their complaint in quo warranto. The next day, June 6, 1967, the plaintiffs’ motion to vacate the order denying them leave to file a complaint was denied. The plaintiffs then filed an appeal in the Illinois Supreme Court and that Court transferred the case to this Appellate District.

We were advised by the plaintiffs in their brief and during oral argument that a decree was entered on July 13, 1966, by Judge Donald J. O’Brien in a case involving the same series of occurrences as the instant case. The decree approved a contested contract executed on December 6, 1965, between Cook County and the Chicago Law Institute. The contract gave all of the Institute’s assets, including its unique and valuable library collection of about 140,000 volumes to Cook County. The last mentioned paragraph of the Contract states, as follows:

The transfer of the Institute’s law library to the County shall be made at the expiration of thirty-five days from the entry of a decree by the trial court . . . unless an appeal has been taken before the expiration of the thirty-five days. If an appeal has been taken from the decree . . . then the transfer shall not be made until the decree is finally affirmed or the appeal dismissed ... If a favorable decree is finally entered, the transfer shall take place . . . thereafter. Both the Institute and the County shall execute any and all checks, documents, bills of sale and other papers . . . for the purpose of making the transfer effective and for title to the law library and other assets transferred to it.

On August 10, 1966, Robert S. Cushman, attorney for the Chicago Law Institute wrote a letter to Daniel P. Coman, Assistant to Seymour Simon, President of the Cook County Board, advising him that the notice of the appeal of Judge O’Brien’s decree was not made a supersedeas because no supersedeas bond was filed within the time allowed. The letter went on to state:

[Y]ou have offered to relocate the Institute’s law library . . . and operate the library as a County law library under the applicable statutes. All costs of the relocation will be borne by the County of Cook. All invoices . . . received by the Chicago Law Institute on or after August 8, 1966, will be paid for by the County. All employees of the Institute will resign as of August 12, 1966, and will become employees of the County of Cook as of August 15, 1966. ... If the decree is finally reversed, the County will, at its expense, return the Institute’s law library to its present location. . . . [T]he library of the Chicago Law Institute will be moved during the period from August 16 to August 31, 1966, and thereafter will be located on the twenty-ninth floor of the Civic Center.

On August 12,1966, a notice was posted on the entrance door of the Institute on the 10th floor of the County Building stating that the Institute “will be moved to and thereafter be located on the 29th floor of the Civic Center.” All members were thereafter barred from entering the premises on the 10th floor of the County Building.

The plaintiffs apparently maintain that the ouster of the Chicago Law Institute by Cook County from the 10th floor of the Cook County Building, between August 22, 1966, and September 3, 1966, violated a valid and subsisting lease agreement in which the plaintiffs had and have both personal and proprietary rights. The plaintiffs further argue that they have been and are summarily and illegally deprived of these rights. They state that the lease agreement was in force up to the time the July 13, 1966, decree was entered by Judge O’Brien. Plaintiffs question the right of the Institute’s Board to dispose of the lease or any other asset of the Institute or to authorize Cook County to oust it and its members from the 10th floor of the County Building in light of the vote of the Institute’s members at their special meeting on June 18, 1965, refusing to donate the Institute’s assets to the County.

The plaintiffs allege that the Board of Commissioners of Cook County has acted and expended public monies in direct, wilful and deliberate violation of article IY, section 20 of the Constitution of the State of Illinois, sections 958 and 959 of chapter 34 of the Illinois Revised Statutes, and of other Illinois Statutes. By quo warranto the plaintiffs seek to require the Board of Commissioners to show by what warrant it claims the right to use the monies of the taxpayers of Cook County to defray the costs of moving the library, to pay $22,000 monthly rental, to pay wages and salaries of the Institute’s employees, and to conduct, operate and maintain the Institute Library in the Civic Center Building.

In the case at bar there is only one issue on appeal, and this is whether or not the plaintiffs are entitled to file a complaint in quo warranto. Section 9 of the Quo Warranto Act of 1937 (Ill Rev Stats, 1967, c 112) states the grounds for maintaining proceedings in quo warranto, as follows:

A proceeding in quo warranto may be brought in case:

(a) Any person shall usurp, intrude into, or unlawfully hold or execute any office, or franchise, or any office in any corporation created by authority of this State;

(b) Any person shall hold or claim to hold or exercise any privilege, exemption or license which has been improperly or without warrant of law issued or granted by any officer, board, commissioner, court, or other person or persons authorized or empowered by law to grant or issue such privilege, exemption or license;

(c) Any public officer shall have done, or suffered any act which by the provisions of law, works a forfeiture of his office;

(d) Any association or number of persons shall act within this State as a corporation without being legally incorporated;

(e) Any corporation does or omits to do any act which amounts to a surrender or forfeiture of its rights and privileges as a corporation, or exercises powers not conferred by law;

(f) If any railroad company doing business in this State, shall charge an extortionate rate for the transportation of any freight or passenger, or shall make any unjust discrimination in the rate of freight or passenger tariff over or upon its railroad.

The plaintiffs, after being questioned during oral argument, stated that they had filed their petition under subsection (b) of the above section.

It is provided by the Quo Warranto Act that the proceeding shall be brought in the name of the People of the State of Illinois by the Attorney General or State’s Attorney of the proper county, either of his own accord or at the instance of any individual relator. If, as is the case here, both the Attorney General and the State’s Attorney have refused the request of an individual to bring a quo warranto action, that individual may file a complaint in the name of the State providing he first obtains leave of the court. Ill Rev Stats 1967, c 112, § 10. The statute was not intended, however, to give an individual the right to bring the proceeding to correct a wrong common to the public. Rowan v. City of Shawneetown, 378 Ill 289, 38 NE2d 2. Thus, to entitle an individual to maintain a quo warranto action his interest must be personal to him, People ex rel. Chas. G. Blake Co. v. Oak Woods Cemetery Ass’n, 17 Ill2d 64, 160 NE2d 759, and an interest which he shares in common with the general public is insufficient under the statute. People ex rel. Hannawell v. Dimmick, 35 Ill App2d 10, 181 NE2d 825 (abstract). In addition, a petition for leave to file a complaint in quo warranto must recite facts, not mere conclusions of the pleader, sufficient to satisfy the court that there are competent grounds for the proceeding. People ex rel. Lutz v. France, 314 Ill 51, 145 NE 240. Also, the granting or withholding of leave to file a complaint in quo warranto rests in the sound discretion of the court. People ex rel. Smith v. Wiseh, 345 Ill App 609, 104 NE2d 353 (abstract).

The plaintiffs apparently seek an accounting from public officials of their expenditure of certain monies. It is clear, however, that the plaintiffs do not question the right of any public official to hold office, nor the authority of any public official to act. They do not question the authority of the Board of Commissioners of Cook County to establish, maintain and operate a county law library pursuant to the County Law Library Act of 1961 (Ill Rev Stats 1967, c 81, § 81).

It is not the function of the extraordinary writ of quo warranto to determine the legality of official acts of public officials whose right to hold office and whose authority to act is not questioned. People ex rel. Chillicothe Tp. v. Board of Review of Peoria County, 19 Ill2d 424, 167 NE2d 553.

The plaintiffs alleged in their petition that “they are residents, citizens and taxpayers of Cook County, State of Illinois; have been and are members in good standing of the Chicago Law Institute, an Illinois corporation, not-for-profit, since 1939 and 1952, respectively; and have a pecuniary interest in said corporation . . . .” Plaintiffs argue that their petition showed rights peculiar and personal to themselves as members of the Chicago Law Institute which residents and taxpayers of Cook County do not possess.

Bare allegations by plaintiffs that they have a pecuniary interest in the Chicago Law Institute which is being violated contrary to law is merely a legal conclusion which does not show any personal, peculiar, and unique interest different from the interest of any other members of the Law Institute or the public at large as required by section 10 of the Quo Warranto Act. It is clear that plaintiffs do not represent the Chicago Law Institute in these proceedings nor do they claim such a right. It is also clear that the plaintiffs did not make the Institute a party to this action. It is undisputed that the decree approving the contested contract between Cook County and the Chicago Law Institute is now final. A substantial part of plaintiffs’ briefs sounds as though it were an appeal from that decree and a rehash of the dispute by some of the members of the Institute.

For the foregoing reasons, the orders of the Circuit Court denying the petition for leave to file a complaint in quo warranto and denying the motion to vacate the order denying the petition is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


author: JUSTICE GOLDENHERSH.

text:
    Combined Insurance Company of America, an Illinois Insurance Corporation, Plaintiff-Appellee, v. City of Nokomis, a Municipal Corporation, Montgomery County, Illinois, Defendant-Appellant.
    Gen. No. 67-139.
    Fifth District.
    November 19, 1968.
    Kenneth E. Moss, of Nokomis, and Harold Broverman, Broverman & Broverman, of Taylorville, for appellant; Michael Frey, Arrington & Healy, of Chicago, and Paul M. Hickman, Bullington, White and Hickman, of Hillsboro, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Morris Fiddler, Defendant-Appellant.
    Gen. No. 52,990.
    First District, Second Division.
    November 19, 1968.
    Rehearing denied December 16, 1968.

      Harry J. Busch and Jacob Shamberg, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant was charged under a two-count indictment with the strangulation murder of Jayne Levin. He was found guilty by a jury and sentenced to a term of twenty to thirty years in the penitentiary. He appeals.

On the date of her death, Jayne Levin was sixteen years of age and attended high school in Chicago. She and defendant, aged seventeen, had “gone steady” for several years.

Raymond Cunningham, the owner and operator of a garage located in the 4500 block of North Elston Avenue in Chicago, testified that about 5:30 p. m. on June 3, 1966, he was in the office of the garage when defendant entered the garage from the alley entrance and requested permission to use one of the washrooms. Cunningham stated that defendant was holding his stomach and complaining that he was sick. Defendant spent three minutes inside the washroom, during which time he made sounds as if ill. Defendant thereafter left the building by way of the same alley exit, but returned several minutes later in an agitated, excited state. He requested Cunningham to accompany him to the alley because he thought “someone has murdered my girl friend, she is turning blue.” Cunningham testified that he told defendant he was unable to leave the office, but that he' would notify the police. Defendant again left the building by the alley exit, and a customer entered the garage office and engaged Cunningham in conversation. Defendant returned a third time, five or six minutes later, and requested Cunningham to go into the alley and check his girl friend’s pulse. At this time the police and fire ambulance were summoned.

Approximately 5:45 p. m. on the date in question Chicago Firemen Foley and Thomas, assigned to a fire department ambulance, received a call to proceed to the vicinity of Elston and Kennicott Avenues in the city. Upon their arrival at the scene, they observed defendant at the mouth of an alley 100 feet from the intersection of Elston and Kennicott Avenues. Defendant appeared to be “highly agitated” and stated to the firemen that his girl friend was “sick” in his parked automobile several hundred feet into the alley. Fireman Thomas testified that defendant ran in front of the ambulance as it proceeded into the alley toward the parked automobile, shouting “come on, hurry up, hurry up, down by the parked car.” Police Officer Liszkowski, one of the police officers summoned to the scene, testified that defendant was running back and forth between the ambulance and the squad car which had entered the alley behind the ambulance, shouting “something happened to his girl friend in the car, that he thought she was dead.” Officer Wirkus’ testimony was much the same as that of his partner, Officer Liszkowski, except that Officer Wirkus did not testify that he heard defendant shout that he thought Miss Levin was dead. Defendant’s emotional state at this time was described by the witnesses as “hysterical,” “agitated,” “highly nervous,” and the like.

The firemen and the policemen testified they looked into the parked automobile and observed Miss Levin’s body in the front of the automobile on the passenger’s side. The body was in a kneeling position on the floor, with the head face downward on the seat. As the body was being removed from the automobile onto a stretcher, Officer Wirkus noticed a handkerchief stuffed into its mouth. Fireman Thomas testified that he removed the handkerchief and that he asked defendant, “Who did this ?” to which defendant replied, “I did.” While Officer Wirkus stated he did not overhear any conversation between defendant and the others at the scene, Fireman Foley testified that Fireman Thomas had no conversation with the defendant other than to ask him who stuffed the handkerchief into the deceased’s mouth, to which defendant replied, “I did.”

Miss Levin’s body was removed to Forkosh Hospital where a staff physician made an examination. An attempt was made to resuscitate Miss Levin for thirty minutes, but to no avail. The doctor testified that he was unable to say exactly when death occurred. He stated that he observed linear marks or abrasions moving in a circular pattern around the deceased’s neck, apparently caused by some form of friction; this testimony was corroborated by a police technician and also by Fireman Foley. The physician was unable to state an opinion as to the cause of the marks and gave no opinion as to the cause of death.

Several police technicians ran various tests on the body of Miss Levin, her clothing, defendant’s clothing, and the automobile from which the body was removed. Although there was no sign of sexual molestation and no apparent damage to clothing of recent origin, the deceased’s knees and ankles were scraped and lacerated.

Doctor Reese Guttman, a specialist in diseases and disorders of the head area, testified that, in his opinion, ligature strangulation could not have been caused by the handkerchief found in the mouth of Miss Levin.

The only direct evidence of the cause of Miss Levin’s death is a certified copy of the coroner’s certificate of death issued by the county clerk. It appears from the record that the coroner’s physician who performed the autopsy, Dr. Henry, was deceased at the time of trial. Over strenuous objection by the defense, the trial court allowed the certified copy into evidence on the ground that the Vital Statistics Act permits the introduction of such documents into evidence as prima facie evidence of the facts contained thereon. The document was admitted for the limited purpose of showing the cause of Miss Levin’s death to be ligature strangulation.

Defendant first maintains that it was error to have admitted the certified copy of the coroner’s certificate of death into evidence for the reasons that the coroner’s certificate, as a statement of the cause of death, is not based upon the coroner’s own medical examination and is therefore hearsay; that the county clerk’s certified copy of the coroner’s certificate is also hearsay as to the cause of death; and that neither document is given evidentiary status by statute.

Except as authorized by the Act, disclosure of information contained in vital statistics records by the party in custody of those records is prohibited by the Vital Statistics Act. Ill Rev Stats 1967, c 111%, par 73-24. Section 25 of the Act generally designates those parties entitled to disclosure of such information. Ill Rev Stats 1967, c 111%, par 73-25.

Subsections 1, 2 & 3 of section 25 set out the requirements for obtaining a certification of birth or death. The certification shall disclose only the name, sex, date and place of birth or death of the subject party, and the registration number. It is specifically provided that none of the other data appearing in the vital statistics records shall be included in the certification, with one exception not relevant here.

Subsection 4 of section 25, on the other hand, deals with a certified copy of a certificate of birth or death and provides that such certified copy shall be issued:

“ (a) Upon the order of a court of record; or <6
“(c) Upon specific written request by a department of the state or a municipal corporation or the federal government; or
“(d) In case of a death . . . certificate, upon specific written request of a person, or his duly authorized agent, having a personal or property right interest in the record.”

Subsection 6 of section 25 provides that “[a]ny certification or certified copy of a certificate issued in accordance with this section shall be considered as prima facie evidence of the facts therein stated, . . .”

A consideration of section 25 as a whole reveals that the legislature has drawn a distinction between a “certification” of a vital statistics record and a “certified copy of a certificate.” “Certification” is defined as the “ [a]ct of certifying, or state of being certified; attestation.” (Webster’s New International Unabridged Dictionary, 2nd Ed.) The Vital Statistics Act specifically limits the matters which the county clerk may include in a certification, namely, the sex, name, place and date of birth or death of the subject party, and the registration number. A “certified copy,” on the other hand, is defined as “[a] copy of a document or record, signed and certified as a true copy by the officer to whose custody the original is intrusted.” (Black’s Law Dictionary, 4th Ed, 1951, p 287.) Subsection 4 of section 25 provides that a “true copy” of a birth or death certificate may be issued to any of those parties therein named, without regard to the nature of the data appearing on the copy.

Prior to the enactment of the Vital Statistics Act in 1961, and until the year 1925, a coroner’s certificate of death was admissible to show the fact and the cause of death in civil cases. See e. g., Foster v. Shepherd, 258 Ill 164, 101 NE 411. All cases supporting this view, however, were expressly overturned in 1925 when it was held that those matters contained on the certificate of death were inadmissible as evidence of the cause of death. Spiegel’s House Furnishing Co. v. Industrial Commission, 288 Ill 422, 123 NE 606; Plano Foundry Co. v. Industrial Commission, 356 Ill 186, 190 NE 255. While the issuance of both certifications and certified copies were controlled by section 55 of chapter 111% of the Illinois Revised Statutes prior to 1961, only the information contained on a certification was made admissible as prima facie evidence of such matters. See Ill Rev Stats 1959, c 111%, par 55. The information-contained on a certified copy of a certificate, on the other hand, was presumably controlled by the case law as set out above concerning a coroner’s certificate of death. All of the foregoing was obviated by passage of the Vital Statistics Act in 1961, which expressly provides that the information contained both on certifications of death and on certified copies of a coroner’s death certificate constitutes prima facie evidence of such matters. Consequently, defendant’s position, that the matters contained on the coroner’s certificate of death and on the county clerk’s certified copy thereof are merely hearsay and therefore inadmissible, is without foundation.

Defendant, however, maintains that the terms “certification of death” and “certified copy of a certificate” are used interchangeably throughout section 25 of the Vital Statistics Act, so that the sole data contained in the vital statistics records which the county clerk may divulge is the name, sex, date and place of death of the subject party, and the registration number. Defendant concludes that the cause of death appearing on the certified copy of Miss Levin’s death certificate was surplusage and therefore inadmissible as evidence since the Act does not give the county clerk the authority to divulge such information.

The statutory history of certificates of death and of certified copies of death certificates discloses a distinction consistently drawn between the two types of documents. Prior to the passage of the Vital Statistics Act, certifications of death were dealt with apart from certified copies of death certificates, and all matters contained thereon were given the status of prima facie evidence. Ill Rev Stats 1959, c 111%, par 55. Although dealt with in the same section as certifications of death, prior to 1961, certified copies of death certificates received no such evidentiary status by the statute, but, rather, the evidentiary status of certified copies was governed by case law, as noted above. Under the Vital Statistics Act of 1961, certifications of death are dealt with in subsection 3 of section 25 of the Act and rules are set down as to what shall be contained thereon. Certified copies of certificates, however, are specifically dealt with in subsection 4 of section 25. Subsections 5, 6, and 7 of section 25 then continue this distinction between the two types of documents, referring to them as “[a]ny certification or certified copy” of a certificate. Although subsection 11 of section 25 refers to “an original, certified copy, or certification of a certificate” in prohibiting custodians of vital statistics records from preparing or issuing any “certificate” other than as authorized by the Act, it appears that this is no more than inexact wording rather than the employment of the terms interchangeably as defendant suggests. Consequently, while a certification of death may contain only the name, sex, date and place of death of the subject party, and the registration number, a certified copy of a death certificate must, by its very nature, contain all information contained on the certificate itself, which, by statute, must contain the cause of death. See Ill Rev Stats 1967, c 31, pars 10.1, 10.4. The trial court did not commit error in admitting into evidence the certified copy of the coroner’s death certificate as prima facie evidence for the limited purpose of showing the cause of Miss Levin’s death.

Defendant next maintains that the trial court failed to strictly construe the Vital Statistics Act, which is in derogation of the common law, in that the provision in subsection 6 of section 25, allowing certifications and certified copies to stand as prima facie evidence of the matters contained thereon, was permitted to encompass the disclosure information not permitted by subsection 3, namely the cause of death. This argument is again premised upon the erroneous theory that both certifications and certified copies of death certificates are treated equally and interchangeably in the Act. Nor can it be heard that the admission into evidence of the certified copy, containing information concerning the cause of death whereas it appears that the coroner’s physician who reported the cause of death is unavailable to testify, violates defendant’s constitutional right to confront the witnesses against him. See People v. Love, 310 Ill 558, 142 NE 204; People v. Dolgin, 415 Ill 434, 450, 114 NE2d 389.

Defendant’s final contention is that the trial court committed error in overruling his post-trial motions inasmuch as there was no competent evidence of the cause of Miss Levin’s death, nor any evidence that defendant was the agency which caused her death. We disagree.

The certified copy of the coroner’s death certificate introduced into evidence shows the cause of Miss Levin’s death as ligature strangulation. The physician who examined the body upon its arrival at Forkosh Hospital, a police technician, and Fireman Thomas testified to linear marks going around Miss Levin’s neck, which the physician testified were caused by some form of friction and which generally corroborates the ligature strangulation information contained on the certified copy of the death certificate. There is also evidence that defendant was in a highly excited and agitated state when requesting the aid of witness Cunningham and also when the police and firemen arrived at the scene. Cunningham testified that defendant stated he thought “someone has murdered my girl friend, she is turning blue.” The handkerchief found stuffed into the deceased’s mouth was placed there by defendant, Firemen Thomas and Foran testifying that, when asked who placed the handkerchief into the mouth, defendant replied, “I did.” (The fact that a doctor testified that the handkerchief found in the deceased’s mouth could not have caused the ligature strangulation is immaterial, since it does not appear that the State’s case was based on the theory that the death of Miss Levin was the result of the handkerchief stuffed into her mouth.) The body was found in the front seat of defendant’s automobile, which was parked several hundred feet into the alley. We find that there was competent evidence of the cause of Miss Levin’s death and conclude that from the evidence presented, the jury could reasonably have inferred that defendant caused her death.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: EBERSPACHER, P. J.

text:
    Pamela Fay Woodman, a Minor, by Her Father and Next Friend, Thomas C. Woodman, Plaintiffs-Appellants, v. Litchfield Community School District No. 12, Montgomery County, Illinois, Defendant-Appellee.
    Gen. No. 67-69.
    Fifth District.
    November 20, 1968.
    Meyer and Meyer, of Belleville (Delmer R. Mitchell, Jr., of counsel), for appellants.

      Denby & Dobbs, of Carlinville (Stuart Dobbs, of counsel), for appellee.
   EBERSPACHER, P. J.

Plaintiff caused her complaint to be filed alleging that she was a child of eight years of age, and a second grade student in a school operated by defendant School District on March 1, 1966; that she was kicked in the head by a fellow student while she was performing the task of picking up papers off the floor of her classroom at the request of the teacher; that at the time of the injury the class was in session and the teacher permitted other students to move about the room in a disorderly fashion in the area where plaintiff was located; that plaintiff was severely and permanently injured when she was, while thus engaged, kicked in the head. The complaint alleges the teacher’s employment and charges the teacher as agent of defendant with numerous acts or omissions of carelessness and negligence in supervision of the pupils in the classroom, as proximate cause of the alleged injury.

The defendant School District filed a motion to strike the complaint and dismiss the action, based on the 1965, Local Governmental and Governmental Employees Tort Immunity Act (c 85, § 1-101 et seq., Ill Rev Stats 1965) and particularly on § 3-108 (a) of the Act, the pertinent part of which is:

“Except as otherwise provided by this Act . . . neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.”

The trial court granted the motion to strike and granted plaintiff 30 days to amend. Plaintiff elected to stand on the complaint, and the court dismissed the cause of action, from which order plaintiff has appealed.

We find no reported cases interpreting the Employees Tort Immunity Act, supra, although excellent commentaries have been published since its enactment. Plaintiff contends that the sections of the Act under Article IU deal exclusively with property conditions or use of public property and since the injury did not arise out of any alleged condition or use of school property, but only as a result of negligent conduct on that site to which the physical condition of the property or its use were insignificant, that section 3-108 (a) is not applicable. It is noted that legislative enactment does include the heading of Article m “Immunity from Liability for Injury Occurring in the Use of Public Property,” but consider this to be of such latitude that it does not indicate that section 3-108 (a) is not applicable to these alleged facts. That section specifically covers “an activity” on public property. A strict construction, which is required, in view of the common-law position of Illinois in matters regarding governmental immunity, and the Act being in derogation of that common-law position, does not limit the application of 3-108 (a) to those situations in which there are injuries arising from a defective condition or from the use of the public property. That section says a failure to supervise an activity on public property does not impose liability upon this defendant, unless another section of the Act specifically created a duty to supervise a particular type or category of activity. Activities which occur in a classroom are not within the category or categories of activities “otherwise provided by this act.”

Plaintiff suggests in the alternative, that the immunity for failure to supervise activity on public property, should not be extended to cases where a public entity has undertaken to provide some supervision but the amount of supervision is inadequate or the supervision is negligently carried on. Prof. Baum suggests this theory which is based on the insufficient light and failure of maintenance of traffic signal cases.

Section 2-109 of the Act provides:

“A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.”

At the time the Tort Immunity Act went into effect there was in effect, as a result of enactment also in the 1965 session of the General Assembly an Amendment to the School Code (c 122, Ill Rev Stats 1965) which granted the right and imposed an obligation on teachers to maintain discipline in the schools and gave teachers the status of parents and guardians to the pupils. The pertinent part of that amendment is:

“Teachers . . . shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians. . . .” (§ 24-24, c 122, Ill Rev Stats 1965.)

This statutory enactment would protect a teacher from liability for mere negligence in supervision or maintaining discipline because of the status conferred; that of a parent or guardian in relation to all the pupils in the classroom. No liability would attach to a parent or one having the relation of parent absent an event constituting willful or wanton conduct. Nudd v. Matsoukas, 7 Ill2d 608, 131 NE2d 525; Mroczynski v. McGrath, 34 Ill2d 451, 216 NE2d 137. No such event is alleged in the complaint, nor is any event in the complaint so characterized.

The duty upon the teacher to maintain discipline, which would include the supervision of the movement of children in the classroom, is provided by section 24-24 of the School Code. Section 2-202 of the Tort Immunity Act provides:

“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.”

We cannot say that there was here alleged such act or omission in the maintenance of discipline, including the supervision of the movement of the children in the classroom, that would constitute willful and wanton negligence.

We, therefore, affirm the judgment of the Circuit Court of Montgomery County.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       “Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act” by David C. Baum, 1966 Law Forum 981 (Winter #4); “Local Governmental Tort Immunity and Liability in Illinois” by James O. Latturner, 55 Ill Bar J 28 (Sept 1966); “Illinois Tort Claims Act: A New Approach to Municipal Tort Immunity in Illinois,” 61 NWL Rev 265 (1966).

       Laws of Illinois, 74th Gen Assembly 1965 (Session Laws) p 2987.

       In his commentary listed in footnote 1 at page 1018-19.

       City of Chicago v. Powers, 42 Ill 169 (1866) (City liable for insufficient lighting of bridge) and Johnson v. City of East Moline, 405 Ill 460, 91 NE2d 401 (1950), city liable for negligent failure to maintain traffic signal in working operation.


author: MORAN, J.

text:
    People of the State of Illinois, Appellee, v. Charles B. Harris, Defendant-Appellant.
    Gen. No. 67-134.
    Fifth District.
    November 20, 1968.
    Robert H. Rice, of East St. Louis, for appellant.

      Willard C. Pearce, State’s Attorney, of Fairfield, and Richard C. Cochran, Assistant State’s Attorney, of counsel), for appellee.
   MORAN, J.

The Grand Jury of Wayne County, Illinois returned the following indictment for perjury against appellant on the 16th day of September, 1964:

“The Grand Jurors, chosen, selected and sworn, in and for the County of Wayne, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on the 25th day of June, 1963, at and within said County, CHARLES B. HARRIS committed the offense of PERJURY in that he did falsely swear under oath as required by law, in a certain criminal action entitled the People of the State of Illinois, Plaintiff, vs. Charles B. Harris, Defendant, Cause No. 63-3001, Circuit Court of Wayne County, Illinois, June Term, 1963, that the said CHARLES B. HARRIS never had or owned a .45 caliber automatic nor a .45 caliber weapon of any kind, whereas in truth and in fact the said CHARLES B. HARRIS did, prior to the giving of his said testimony, have a .45 caliber weapon, which false statement, testimony or allegation was material to the issue or point in question as raised by said above described criminal action, all in violation of the Criminal Code of 1963, Section 32-2, and contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.”

The State proved in defendant’s perjury trial that one Howard Taylor was killed by several .45 caliber slugs fired from a .45 caliber weapon; that the defendant, Charles Harris, testified in the trial of Cause No. 63-3001 that he had never owned or had a .45 caliber weapon of any kind, and that contrary to what defendant had testified to in Cause No. 63-3001, the defendant had a .45 caliber weapon in his possession on several occasions prior to the trial of Cause No. 63-3001 in 1965. One witness testified that he saw defendant with a .45 caliber pistol and a Thompson submachine gun in 1948 and with a chrome-plated .45 pistol in 1952; another that he saw defendant with a .45 caliber pistol in defendant’s automobile in February of 1954 and another testified that he worked for defendant on defendant’s farm in Wayne County, Illinois in May or June of 1962 and saw a loaded .45 pistol in the glove compartment of defendant’s car at that time.

The defendant contends on this appeal that the State failed to prove that the purported false testimony given in Cause No. 63-3001 by the defendant was material to any issue in that case, because there was no proof in his perjury trial of what the issue or point in question was in Cause No. 63-3001, and therefore there was no proof of what his false testimony was material to as required by chapter 38, section 32-2(a), Illinois Revised Statutes, which provides, “a person commits perjury, when under oath or affirmation in a proceeding or in any other matter when by law such oath or affirmation is required, he makes a false statement material to the issue or point in question, which he does not believe to be true.”

To convict one of perjury under this statute, the State must not only prove the false statement, but prove that it was material to the issue or point in question. “A statement can be neither material nor immaterial in itself, but its materiality must be determined in accordance with its relation to some extraneous matter.” 70 CJS, Perjury, par 11, p 466. Materiality looks to the relationship between the propositions for which the evidence is offered and the issues in the case. McCormick on Evidence, p 315. Therefore the State must prove the falsity of the statement made in the prior proceeding and prove what the issue or point in question in the former proceeding was, so the court can ascertain the materiality of the alleged false statement to the issue or point in question. The materiality of alleged false testimony in a perjury trial is a question of law for the court. People v. Berry, 309 Ill 511, at 512, 141 NE 132.

We have searched the record carefully for any evidence in the present case which would signify what the issues in Cause No. 63-3001 were and have found none. In our opinion it was necessary to introduce into evidence in defendant’s perjury trial enough of the records and testimony in Cause No. 63-3001 to prove what the issue or point in question in that trial was. Young v. People, 134 Ill 37, 24 NE 1070. The record before us does not contain the indictment or any other record or testimony in Case No. 63-3001 which proves to what issue in that case defendant’s purported false testimony was material.

In Wilkinson v. People, 226 Ill 135, 80 NE 699, the court said at 146 and 147: “ (A)nd so here, without any proof whatever tending to show how or in what manner the alleged false testimony became then and there material to the issue on trial in the case in which it is alleged the perjury was committed, it is clear that the conviction cannot be sustained.”

So, too, in the present case, it is clear that the conviction cannot be sustained because it was not shown in the present case how or in what manner the alleged false testimony in Case No. 63-3001 became then and there material to the issue on trial in that case. In the view that we take of this case, it will not be necessary to consider other errors raised by appellant.

For the foregoing reasons the judgment of the Circuit Court of Wayne County is reversed.

Judgment reversed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    LaSalle National Bank, a National Banking Corporation, Administrator of the Estate of Henry C. Lavery, Jr., Deceased, Plaintiff-Appellee, v. Wieboldt Stores, Inc., a Corporation, Defendant-Appellant. Josephine Watschke, Administratrix of the Estate of Fred Watschke, Deceased, Plaintiff-Appellee, v. Wieboldt Stores, Inc., a Corporation, Defendant-Appellant. Elizabeth Beckmeyer, Administratrix of the Estate of William F. Beckmeyer, Deceased, Plaintiff-Appellee, v. Wieboldt Stores, Inc., a Corporation, Defendant-Appellant. Faulds Oven & Equipment Company, Inc., Plaintiff-Appellee, v. Wieboldt Stores, Inc., a Corporation, Defendant-Appellant. The Home Indemnity Company, a Corporation, Subrogee of Faulds Oven & Equipment Company, Inc., a Corporation, Plaintiff-Appellee, v. Wieboldt Stores, Inc., a Corporation, Defendant-Appellant. Ada M. Zielke, Administratrix of the Estate of William Henry Zielke, Deceased, Plaintiff-Appellant, v. Faulds Oven & Equipment Company, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 51,942.
    First District, Third Division.
    November 21, 1968.
    Rehearing denied December 17, 1968.

      Peterson, Lowry, Rall, Barber & Ross, of Chicago (A. R. Peterson, Herbert C. Loth, Jr., Norbert J. Wegerzyn, of counsel), for appellants.
    John J. Witous, Clausen, Hirsh, Miller & Gorman, Joseph Carr, Gardner, Carton, Douglas, Chilgren & Waud, Rosenbaum & Rosenbaum, and Lester E. Williams, of Chicago (Jacob T. Pincus and James T. Ferrini, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is the second appeal in this case. The first appeal, LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188, 208 NE2d 845, was decided in 1965. The six lawsuits which were consolidated and tried involve claims arising from an explosion in the Wieboldt Department Store (Wieboldt) in River Forest, Illinois, on March 6, 1955, while employees of Faulds Oven & Equipment Co. (Faulds) were installing a gas fired bakery oven. In the explosion four Faulds workmen, Henry C. Lavery, William F. Beckmeyer, Fred Watschke and John Kalas, were killed. William Henry Zielke, assistant stationary engineer for Wieboldt, was also killed.

Wrongful death actions were filed against Wieboldt by the administrators of the estates of three of the Faulds’ employees before mentioned and a similar action was brought by the estate of Zielke against Faulds. In addition to the wrongful death action a property damage claim was filed by Faulds for the amount due for loss of the oven and Wieboldt counterclaimed for damages to its building. Home Indemnity Company, a subrogee of Faulds, filed an action against Wieboldt, seeking to recover the amount paid in workmen’s compensation because of the death of John Kalas.

On the first trial in 1962 the jury found Wieboldt guilty of negligence and returned verdicts of $20,000 for the estates of each of the Faulds’ employees. A verdict was directed in favor of Faulds for property damage and judgment was entered thereon in the sum of $2,936.58. Verdicts of not guilty were directed in the claim of Zielke’s estate against Faulds and against Wieboldt in its counterclaim for damages to the store building. On appeal the Appellate Court decided that it was Wieboldt’s duty to inspect and maintain the gas lines in question, that they failed to do so and hence were guilty of contributory negligence. LaSalle Nat. Bank v. Wieboldt Stores, Inc., supra, at 207-8. The court reversed, however, and remanded the judgments against Wieboldt in the Faulds’ employee death cases because of prejudicial argument by the plaintiffs’ counsel.

On the second trial the jury returned verdicts against Wieboldt in favor of the estates of the Faulds’ employees in the sum of $20,000 each. Home Indemnity, as subrogee of Faulds, was awarded $8,000 for death benefits paid to the estate of John Kalas and the Faulds Company was awarded $4,651.71 for damages to its property. In the death action brought by the administratrix of Zielke against Faulds, the jury returned a verdict in favor of Faulds. The trial court entered judgment on these verdicts.

Wieboldt and the administratrix of Zielke have taken this appeal. They contend that the court erred in instructing the jury that Wieboldt had a duty to extend the gas and electric lines to the place where the oven was being installed and that in failing to do so, it was negligent as a matter of law. Appellants also object to certain rulings made by the court with respect to the admission of evidence.

The facts regarding the explosion and resulting damages are fully set forth in the first appeal and the contentions of the appellants are in large part resolved therein. LaSalle Nat. Bank v. Wieboldt Stores, Inc., supra. Accordingly, a short summary of the facts will here suffice.

In January 1955 Wieboldt contracted to purchase a bakery oven from Faulds. The parties agreed that installation would take place over a weekend to avoid interference with the normal business operations of the store. It was also agreed that Faulds would install the oven “complete except for final gas, electric connections.” The new oven arrived at the store during the evening of March 5, 1955, and the Faulds’ crew consisting of Beckmeyer the foreman, Carlson, Lavery, Watschke and Kalas unloaded the oven parts and began to assemble the unit at about 7:00 p. m. The new oven required gas and electric service lines. Although both the old and the new ovens were gas fired, the connections on each were at different locations. In January 1955 a Wieboldt employee, in preparation for the installation of the new oven, put a “T” connection in place of an elbow in the gas line located in the crawl space beneath the bakery floor, thus providing a connection from which to run new gas lines to the new oven. On Sunday morning, March 6, 1955, William Zielke came on duty for Wieboldt. The oven was then in position and Zielke ran a gas line from the “T” which had been installed earlier over to the corner where the oven was located. After completing the connections, all Wieboldt employees, except Zielke and a watchman whose duties brought him to the bakery room only periodically, left the building. The gas supply valve was turned on and the oven was almost completely assembled by about 8:00 p. m. Carlson, an employee of Faulds, was inside the oven connecting the revolving pans when the explosion occurred, killing all the workmen in the bakery room with the exception of Carlson, who apparently was protected by the oven. From an examination of the damages and debris it appeared that the center of the explosion was located in the crawl space beneath the bakery floor and that the explosion resulted from the ignition of an accumulation of gas flowing into that space from the unplugged end of a gas line.

In this second appeal the appellants contend that the court erred in giving the following instructions to the jury:

“You are instructed that as a matter of law the obligation of bringing gas lines and electric lines to the new oven and connecting them to the oven was that of Wieboldt Store, Inc.”

That instruction was in accord with the determination upon the prior appeal that Wieboldt, under its contract with Faulds as construed by the court, had not parted with control of its gas lines. Faulds was to build the oven complete with gas piping on the inside, and the burden of extending the gas lines to the oven was on Wieboldt. On this issue the Appellate Court said (p 205):

“We conclude, therefore, that the trial court did not err in refusing to submit to the jury the interpretation to be given the contract. The court’s interpretation, finding Wieboldt had not delegated its duty to exercise control and supervision over the gas lines, was manifestly reasonable and the only consistent interpretation which could be given to the clear understanding of the parties and the uncontroverted evidence.”

The court did not err in giving Faulds’ Instruction No. 2.

Appellants further contend that the court erred in giving Instruction No. 11 which reads as follows:

“You are instructed that Wieboldt was negligent as a matter of law in failing to supervise, inspect and maintain its gas lines.”

It was Wieboldt’s obligation, as held on the prior appeal and on the evidence presented on this trial, to extend the gas lines. Wieboldt was aware of the necessity of removing and capping the old gas line as part of the procedure since that line was an obstacle to the installation of the new oven. Wieboldt failed to discharge its obligation to maintain, supervise and inspect its gas lines and the trial court properly gave the instruction in accordance with the prior decision on appeal. LaSalle Nat. Bank v. Wieboldt Store, Inc., supra, at 207-8. There was still left for determination however the issue of contributory negligence.

Where a record on a subsequent appeal is the same as on the first or a prior appeal, or substantially so, the adjudication of such first or prior appeal becomes the law of the case. Hammer v. Slive, 35 Ill App2d 447, 183 NE2d 49. Under such circumstances the conclusions of the reviewing court become binding on the appellants and are not subject to review upon appeal from the result reached at the second trial. Illinois Cent. R. Co. v. Seitz, 111 Ill App 242; Chicago & A. R. Co. v. People ex rel. Bloomington, City of, 72 Ill 82. We proceed to consider the errors charged with respect to the admission of evidence.

John Carle, an independent contractor, testified that he was retained to remove the old oven from the Wieboldt store prior to the installation of the new one. Carle further testified over objection that he was present in the Wieboldt bakery on March 5, 1955 and that he overheard a conversation between John Faulds and two Wieboldt employees working in the area and that one of the Wieboldt employees stated that Wieboldt would take care of a gas pipe which protruded above the floor and obstructed the installation of the new oven. Appellants contend that there was no proof that the unidentified person was an agent of Wieboldt or that he was acting within the scope of his authority. They argue that the testimony was intended to show either a modification of the contract between Wieboldt and Faulds or an admission by Wieboldt and that the objection should have been sustained for the reason that no proper foundation was presented. Substantially similar testimony was given by another witness John Faulds, who described the two persons with whom he talked as Wieboldt employees. Faulds testified that these two men were giving directions and that he walked up to them and told them the gas line would have to be removed. They replied that they would take care of it. An objection was made to that testimony on the ground that Faulds could not say definitely that the two men worked for Wieboldt and the objection was sustained. Faulds testified that the men were directing activities on the premises and he again referred to them as Wieboldt employees. The objection was not renewed. We consider it to have been waived. The fact that these workmen were directing operations on the Wieboldt premises is evidence that they were Wieboldt employees and if Wieboldt had wished to rebut that natural inference, the evidence was at their disposal. The jury was fully apprised of the circumstances surrounding the conversation and could weigh the evidence accordingly. The objection is trivial and even if sound, it would not warrant reversal.

Appellants next contend that the court erred in excluding certain testimony of an expert witness relative to the estimated time the gas was allowed to escape. The witness Zoltán Toreky testified that gas would flow from the described pipe at a rate of 1,500 to 2,000 cubic feet per hour. He was then asked to estimate how long it would take for the gas to accumulate to the level of combustibility. An objection to that question was sustained. Appellants did not make an offer of proof at that point and there is nothing in the record from which to judge the materiality of the evidence sought to be introduced. Without such preservation of evidence it is impossible for the court to determine the probative value of the proffered testimony. In re Estate of Garner, 8 Ill App2d 41, 130 NE2d 219.

The final point raised by appellants is that the court erred in excluding a photograph of Zielke. They contend that the photograph reflected upon the credibility of the witness Carlson in that he allegedly stated on one occasion that he could not distinguish between William Zielke and Adolph Dick, another Wieboldt employee. Appellants contend that if the jury had been permitted to view Zielke’s picture, it would have seen there was no similarity of appearance in the two men and accordingly Carlson’s testimony would have been discredited. Zielke’s physical appearance was described to the jury and it was obvious that he was a smaller man than Adolph Dick. If there had been any issue as to Carlson’s ability to distinguish the two, it would have been thereby resolved. We also note that the photograph depicted Zielke in front of an army barracks and that there was no evidence which showed him as he appeared at the time of his death. It was properly excluded.

When several, cases involving complex issues of law and fact are consolidated for trial, the possibility of trial error is obviously compounded. Counsel must have anticipated such problems when they stipulated to consolidation. The trial court gave the parties involved a fair trial and the decisions reached were sound. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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