author: JONES, J.

text:
    Joseph Gary McClellan, Plaintiff-Counterdefendant-Appellant, v. Janet McClellan, Defendant-Counterplaintiff-Appellee.
    Gen. No. 11,146.
    Fourth District.
    August 4,1970.

      Unger & Stewart, of Danville (John Unger, of counsel), for appellant.
    Acton, Baldwin, Bookwalter & Meyer, of Danville (Thomas Smith, of counsel), for appellee.
   JONES, J.

This appeal is from an order modifying a divorce decree by increasing the amount of child support provided and ordered paid in the original decree.

The facts are not in dispute. The parties were divorced by a decree of the Circuit Court of Vermilion County entered in March, 1961. At that time both were residents of and domiciled in the State of Illinois and both were personally subject to the jurisdiction of the court. There were two children born of the marriage and their custody was awarded to the wife. The husband was ordered to pay $65 per month child support, but for some time he had been voluntarily paying $125.

Subsequent to the decree, the mother and children became residents of the State of Maryland and the husband became a resident of Bangkok, Thailand. In December, 1968, the mother filed in the Circuit Court of Vermilion County, Illinois, a petition to modify the decree of divorce, alleging a change of circumstances arising from a recently incurred physical disability of one of the children, and praying for an increase of child support. The petition was set for hearing and defendant and his attorney were given notice by first class mail. Prior to the hearing the husband filed a Special and Limited Appearance, supported by affidavit, objecting to the jurisdiction of the court over his person because of his residence in the Nation of Thailand. No motion or counteraffidavit was filed in contravention of the husband’s appearance. A hearing was held on February 4, 1969, but neither the husband nor his attorney were present. An order modifying the original decree was entered. It recited that the court “finds it has jurisdiction of the parties hereto and the subject matter hereof in such cases may (sic) and provided by the statutes of the State of Illinois.” The order increased the monthly child support to $300. The husband appeals, urging reversal upon the grounds that the court lacked jurisdiction of his person to enter the order of modification and it is, therefore, void.

It is the husband’s position that although the Illinois court properly exercised its jurisdiction over the parties and their marriage in the original proceeding, that jurisdiction was lost when both the husband and the wife, together with the children, became residents of other jurisdictions, she and the children of another state, he of another country. He argues that the petition to modify the decree is a new action and cannot be instituted by service of notice by mail, that the judgment obtained is in personam and requires personal service of summons.

The basic question is, of course, whether a court of this state may properly continue to exercise personal jurisdiction over parties to a marital cause where both of those parties, and their children, have left the state and established a domicile outside the state. If the court which issued the original decree for divorce continues to exercise jurisdiction of the parties and the subject matter, then service for postdecree proceedings, such as the petition for increase of child support in this case, may be had by written notice pursuant to Supreme Court Rule 104. If the court issuing the original decree loses jurisdiction when the parties and their children cease to be residents of or domiciled in the State of Illinois, then the proceeding is a new one and jurisdiction of a respondent can be obtained only upon personal service of summons.

Section 19 of the Divorce Act (c 40, § 19, 111 Rev Stats 1967) provides:

“Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support, it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as . . . .”

This statute is a clear indication that once a court acquires jurisdiction of the subject matter and parties to a marriage and enters a decree for divorce, it retains that jurisdiction for subsequent modification as to alimony or support. Once the court’s jurisdiction of the person attaches, that jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. With the matter of support and custody being placed in issue in the original proceeding, it cannot be said that the future welfare of children and matters relating to their support and custody requirements do not arise out of the original action.' They are, indeed, an integral part of the original case. A party cannot place these matters in issue before a court, being himself subject to its jurisdiction and decretal orders, and later avoid the court’s continuing jurisdiction to modify such orders as changing circumstances may require by the simple expedient of moving outside the court’s geographical jurisdiction. Were the rule otherwise then litigants would become scofflaws. The rule has been that once the court has jurisdiction it is a sufficient compliance with due process to dispense with personal service of summons upon postdecree proceedings, it being sufficient to give notice of the pendency and hearing by mail, as provided by Supreme Court Rule.

Authority abounds. In the case of People ex rel. Koelsch v. Rone, 3 I112d 483,121 NE2d 738, a husband and wife were divorced in Massachusetts and custody of the child was awarded to the mother. She thereafter remarried and moved to Illinois, bringing the child with her without the consent of the husband or the court. The husband filed a petition in the Massachusetts court seeking custody of the child. Notice by registered mail was sent to the wife and tendered to her by the mail carrier at her residence in Peoria. She refused to accept delivery of the notice. The Massachusetts court thereafter amended the divorce decree by granting custody of the child to the husband. The husband filed a petition in the Circuit Court of Peoria County for a writ of habeas corpus to secure the custody of the child. The trial court remanded the child to the custody of its mother. On appeal, the Supreme Court held that the order of the Massachusetts court modifying the divorce decree and awarding custody to the husband must be recognized and given full faith and credit by the courts of Illinois if the Massachusetts court had jurisdiction over the parties and subject matter at the time of the modification. The court found the fact that such jurisdiction was present was clear from the nature of the decree modified. Insofar as they provide for custody of children, such decrees of Massachusetts courts, like those of our own courts, are subject to future modification. The court stated that the court which entered the decree may change the custody from time to time as the best interest of the child may require; and the fact that the child has since been removed from the state and beyond the reach of its process does not deprive the court of jurisdiction to exercise such reserved power.

The question was last before this court in the case of Sharpe v. Sharpe, 77 Ill App2d 295, 222 NE2d 340. There a decree of divorce was rendered in Illinois and custody of a child awarded to the mother, with the right to remove the child from the jurisdiction of the court. The wife took the child to Texas and became a resident of that state. The father filed a petition in the Hlinois court for a change of custody. Notice was mailed to the wife at her last Hlinois address and to her parent’s residence in Missouri. The wife entered her special appearance contesting the jurisdiction of the court to further modify the custody order of the original decree, contending that the child was a resident of Texas and subject to its jurisdiction. It also appeared that a Texas court had taken jurisdiction of the child in a proceeding entitled, “Application for Modification of Visitation and Custody.” The Illinois court granted the father’s petition, and ordered custody transferred to the paternal grandparents and the mother was ordered to return the child to the jurisdiction of the court to effect the changeover. On the same day the Texas court granted the mother “exclusive custody” and barred the father from all visitation rights. On appeal, the mother contended that domicile controls jurisdiction and since the child was in Texas, the court there had exclusive jurisdiction. The father contended that the court first aequiring jurisdiction retains it. This court held that it was bound by section 19 of the Divorce Act (c 40, § 19, Ill Rev Stats 1967), and precedent, stating:

“. . . parents ought to be bound by the custodial features of a decree to which they were both parties, that is, if the court rendering the decree had jurisdiction of the subject matter and of them. . . . Our adoption of the father’s theory, forecloses ‘forum shopping.’ It seems to us highly irregular that one parent can avoid a decree by the simple expedient of leaving the state. . . .
“Section 19, in our opinion, accords with a proper grant of power to courts, or rather, it articulates an inherent power, and by so doing, points with greater force to the correctness of our choice. . . . We might note, too, that in the reverse situation, Illinois recognizes foreign decrees relative to custody, even though the child is physically present in Illinois. We add the caveat, that if the foreign decree is not final as to conditions existing at the time, but can be amended, absent material changes, such need not be recognized.”

The Restatement states a similar rule. See Restatement of the Law of Conflict of Laws, section 457, and comment a. thereto. See also the cases of Allain v. Allain, 24 Ill App2d 400, 164 NE2d 611; Horn v. Horn, 5 Ill App2d 346, 125 NE2d 539; Nye v. Nye, 411 Ill 408, 105 NE2d 300; Richton v. Richton, 45 Ill App2d 128,195 NE2d 265.

The husband’s authorities are not persuasive. He cites three Illinois statutory enactments which he contends bear on the question. The first is section 19 of the Divorce Act (c 40, § 19, Ill Rev Stats 1967) which provides subsequent modification of decrees “upon ob-taming jurisdiction of the .person of the defendant by service of summons or proper notice.” He argues that the quoted language negates the theory of continuing jurisdiction since it requires “obtaining jurisdiction.” This statute has not been so interpreted and no authority is cited. As seen from the cases cited above, the interpretation by the courts has been to the contrary. Our interpretation of the statute is consistent with its terms. Where the original decree is rendered upon an in rem basis, jurisdiction for modification as to alimony or support can be obtained only by the service of summons. But where the original decree is rendered upon an in personam basis the disjunctive “proper notice” is sufficient for such modification proceedings. The husband also cites the statute on fees, chapter 53, section 31(h), HI Rev Stats 1967, which provides for a ten-dollar filing fee in “each reinstatement of a case including petition for modification of a judgment or order. . . .” Again, no interpretive authority is cited. But that statute deals with fees, not jurisdiction of courts. This legislative enactment providing a filing fee for a postdecree petition cannot be construed as expressing the intent to deprive courts of jurisdiction. The third statute invoked by the husband is the Venue Act (c 146, Ill Rev Stats 1967) as it has been applied in cases such as Smith v. Smith, 87 Ill App2d 21, 230 NE2d 474. In that case it was held that a petition (for modification) for the purpose of the Venue Act was a new suit or proceeding. But that statute and those cases are not apposite. They stand for the proposition that in a petition for modification a party is entitled to have a hearing before a judge other than the one who issued the original decree sought to be modified.

The husband also argues that divorce is an in rem proceeding and may be obtained by constructive service, but a judgment for payment of alimony or support is in personam and requires personal service of summons. This statement is correct and requires no citation of authority. In this case the husband was the original plaintiff but upon the appearance of his wife became the counterdefendant. The original decree was awarded to the wife upon her counterclaim. The husband was thus submitted to the general and personal jurisdiction of the court and thus remains subject to its continuing jurisdiction throughout all subsequent proceedings arising out of the original cause of action.

The order of the trial court will be affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LEIGHTON

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leroy Baker, Defendant-Appellant.
    Gen. No. 53,406.
    First District, Fourth Division.
    November 5, 1969.
    Supplemental opinion August 5, 1970.

      Joseph Minsky, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Francis X. Riley, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Leroy Baker and Sidney Gammons were charged in separate complaints with theft of less than $150 in money. In a bench trial, the two cases were consolidated and findings of guilty entered in both. Gammons was sentenced to serve nine months in the Illinois State Farm in Vandalia, and Baker to a term of nine months in the House of Correction in Chicago.

Leroy Baker, hereafter called defendant, prosecutes this appeal. He contends that (1) his right to a jury trial was not knowingly and understandingly waived; (2) his right to a fair trial was violated when he was not given competent court-appointed counsel; (3) trial on the merits of the charge against him proceeded without his knowing he was on trial; (4) the court proceedings were so lacking in order that he was deprived of due process; and (5) he was not proven guilty beyond a reasonable doubt.

On June 17, 1968, Sidney Gammons and defendant appeared in the First Municipal District of the Circuit Court of Cook County. When their cases were called, the court gave each a copy of the complaint and told them they were charged with armed robbery, a felony. When the clerk asked, “Are you ready for a hearing?”, Gammons asked, “Do we get a chance to talk?” The court answered, explaining that the proceeding was a preliminary hearing. The judge said there was a possibility the State would elect to reduce the charges. The prosecuting attorney then spoke, saying, “The State at this time will file additional charges of petty theft against both defendants.” Leave was granted to file the additional charges, with directions that defendant and Gammons each be furnished with a copy of the complaint.

The court then told them they had the right to a continuance in order to hire private counsel, the right to request a jury trial, and the right to appointment of the Public Defender if they were indigent. After receiving an affirmative response concerning appointment of counsel, the judge said: “The court will appoint the Public Defender to represent you. Mr. Scheffler, you may confer with the defendants.” A “discussion off the record” between the Assistant Public Defender and the two men followed. There was no recess in the proceedings for defendant to consult with his newly appointed counsel. The court then inquired whether the parties were ready. The Assistant Public Defender answered, “Ready for a hearing,” “Not guilty, Jury waived.”

Defendant contends that he did not knowingly and understandingly waive his right to trial by jury. There is no indication in the record that defendant knew or understood the consequences of a jury waiver. The additional charge of petty theft was filed before defendant was furnished council. Nothing in the record suggests that defendant participated in the decision to reduce the charge.

Waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019 (1938). There is no precise formula for determining whether a defendant knowingly and understandingly waives his right to a trial by jury. Each case depends on its particular facts. People v. Richardson, 32 Ill2d 497, 207 NE2d 453; People v. Crable, 80 Ill App2d 243, 225 NE2d 76. The duty rests on the trial judge to see that election by a defendant to waive trial by jury is expressly and understandingly made. People v. Wesley, 30 Ill2d 131, 195 NE2d 708. It is a duty that cannot be perfunctorily discharged. People v. Surgeon, 15 Ill2d 236, 154 NE2d 253. Where a defendant, as did the defendant here, appears in court charged with a serious offense, and the record does not affirmatively show he knew or was informed of his right to trial by jury, his waiver of jury is not made knowingly and understandingly. People v. Brownlow, 114 Ill App2d 458, 252 NE2d 685; People v. Bell, 104 Ill App2d 479, 244 NE2d 321; People v. Turner, 80 Ill App2d 146, 225 NE2d 65. Compare Boykin v. Alabama, 395 US 238, 23 L Ed2d 274, 89 S Ct 1709 (1969). For these reasons we reverse and remand this cause for a new trial.

This disposition makes unnecessary any discussion of defendant’s second, third and fourth contentions. These questions will not occur again in the retrial of this cause.

Defendant’s fifth contention is that he was not proven guilty beyond a reasonable doubt. No argument has been made in support of this contention. Noticeable failure to present an argument in support of a contention is waiver of it on appeal. People v. Hamlett, 408 Ill 171, 96 NE2d 547; People v. Adams, 109 Ill App2d 385, 248 NE2d 748.

Judgment is reversed and remanded for a new trial.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.

SUPPLEMENTAL OPINION

After we filed our opinion in this case, the Supreme Court, with one Justice dissenting, decided People v. Sailor, 43 Ill2d 256, 253 NE2d 397. The court held that an accused who permits his attorney, in his presence and without objection, to waive trial by jury is deemed to have acquiesced in and is bound by the attorney’s action. It adopted the language of People v. Melero, 99 Ill App2d 208, 211-212, 240 NE2d 756, that “The trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.”

This, in substance, was the prosecution’s argument before us when it urged affirmance of the judgment. In a petition for rehearing the State reiterates this argument and contends that we should withdraw our opinion. We have granted rehearing to determine whether the facts of this case should be governed by the rule announced in People v. Sailor, supra.

Factually, we found in our opinion that on June 17, 1968, when defendant was subjected to trial, he did not have a lawyer. Without participation by him, a decision was made to file additional charges of theft. The court then furnished defendant with counsel. There was “a discussion off the record.” It is not shown that this was a recess or pause in the proceedings which furnished defendant a meaningful opportunity to consult with his newly acquired lawyer. Nothing was said to defendant either by the court or by his appointed counsel. He was not asked to execute a written jury waiver. Thus, the question arises whether the rule of Sailor applies to a case in which a defendant appears in court without counsel and is furnished one the moment when he goes to trial.

Constitutional rights, like many others, can be waived as long as the waiver is intelligently and knowingly made. Fay v. Noia, 372 US 391, 9 L Ed2d 837, 83 S Ct 822 (1963); People v. Ackerson, 37 Ill2d 117, 244 NE2d 849. Although the waiver principle is a salutary one, it is not a rigid doctrine. Its application is relaxed where fundamental fairness so requires. People v. Hamby, 32 Ill2d 291, 205 NE2d 456. A common circumstance which often is a factor in relaxing the waiver principle is court-appointed counsel as distinguished from one of defendant’s choice. See Ciucci v. People, 21 Ill2d 81, 171 NE2d 34, cert den 366 US 952, 6 L Ed2d 1245, 81 S Ct 1908; People v. Hamby, supra; People v. Weaver, 45 Ill2d 136, 256 NE2d 816. This circumstance compels recognition of a pragmatism of modern day criminal justice: a court-appointed lawyer may come in contact with his client in situations that differ from those in which the lawyer is the defendant’s choice. This case aptly illustrates the difference.

In reaching its decision in Sailor, the Supreme Court cited five cases: three from Illinois, one from the District of Columbia and one from Wisconsin. The Illinois cases were People v. Novotny, 41 Ill2d 401, 244 NE2d 182; People v. Melero, supra; and People v. King, 30 Ill App2d 264, 174 NE2d 213. The District of Columbia case was Hensley v. United States, 281 F2d 605 (DC Cir 1960) and the Wisconsin case, State ex rel. Derber v. Skaff, 22 Wis2d 269,125 NW2d 561 (1964).

In Novotny, defendant, with counsel of his choice who had represented him throughout the proceedings, went to court and negotiated for reduction of the seriousness of the charge. He remained silent while his lawyer waived trial by jury. Novotny holds that under such circumstances, a defendant is bound by the waiver of his counsel. In Melero, defendant was represented by counsel of his choice. He stood silent while his lawyer waived the right to trial by jury. Melero holds defendant was bound by the waiver. King was a similar case. In Hensley, defendant was represented by privately retained counsel of his choice who waived trial by jury. The court held that the waiver was binding on the defendant. In Berber, at the time of arraignment, several weeks before trial, defendant appeared by counsel of his choice. His lawyer waived trial by jury; the defendant stood by and said nothing. The Supreme Court of Wisconsin held that defendant was bound by the waiver of his lawyer. The distinction between these cases and the one before us is that in each of the former the defendant was represented by counsel of his choice, one in a position to advise him long before the waiver of trial by jury was made without objection. In the case at bar, defendant went to trial with a lawyer furnished him a few moments before.

The State argues that because there was “a discussion off the record,” defendant had the opportunity to consult with his new lawyer and be advised concerning the fundamental constitutional right of trial by jury. We are urged to apply to this defendant the standard of waiver that was declared in Sailor, Novotny, Melero and King. It is our judgment that this should not be done.

Lawyers and judges of experience know that “a discussion off the record” is usually a hurried exchange of words. Hopefully, it is thought to be out of hearing of the trial judge who is waiting and the prosecutor who is ready to proceed. An episode of the kind shown in the record before us lacks the attributes of a conference which could result in a quid pro quo exchange of jury waiver for a reduced charge. It is neither a pause nor a recess for explanation of the meaning of trial by jury to a defendant who initially appears in court without counsel. Under these circumstances, which include the fact that the proceedings commenced as a preliminary hearing of a felony and then became a trial of a misdemeanor, we conclude that the rule of People v. Sailor, supra, does not apply. Therefore, we adhere to our opinion.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas D. Ball, Defendant-Appellant.
    Gen. No. 53,544.
    First District, Fourth Division.
    February 11, 1970.
    Supplemental opinion May 27, 1970.

      Hermes C. Kitsos, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

In a three-count indictment, defendant Thomas D. Ball, and a Richard Collier who is not in this appeal, were charged with rape and indecent liberties with a child. Prior to trial, defendant moved to dismiss count three of the indictment on the ground that it failed to charge an offense. The motion was denied. A jury trial followed. Collier was acquitted of all charges. Defendant was acquitted of rape charged in count one and of indecent liberties by sexual intercourse with a child under sixteen years charged in count two; but the jury returned a verdict of guilty of indecent liberties with a child charged in count three. Defendant was admitted to three years’ probation, the first six months to be served in the House of Correction of the City of Chicago. He appeals; and in support of reversal submits four issues for review. Disposition of this appeal requires discussion only of defendant’s contention that the trial court erred in overruling his motion to dismiss count three of the indictment because it did not charge an offense.

Count three of the indictment alleged that:

Thomas D. Ball and Richard Collier, each a person of the age of seventeen years and upwards, committed the offense of indecent liberties with a child, in that they, with the intent to arouse and satisfy the sexual desires of himself and Sandra Gaydos, a child under the age of sixteen years, in violation of Chapter 38, section 11-4(1-3) , of the Illinois Revised Statutes 1965, ....

The relevant parts of the statute in question provide that:

(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.
Ill Rev Stats 1965, c 38, § 11-4 (a) (1), (2), (3).

A material element of every offense is a voluntary act. Ill Rev Stats 1965, c 38, § 4-1. The kind of voluntary act which is a material element of indecent liberties with a child is described in paragraph (a) of section 11-4 (performs or submits) and in subsections (1), (2) or (3). To satisfy constitutional and statutory requirements, an indictment must allege the commission of an offense by “[S]etting forth the nature and elements of the offense charged; . . . .” Ill Rev Stats 1965, c 38, § 111-3 (a) (3). An indictment that does not allege the material elements of an offense will not support a conviction. People v. Moore, 368 Ill 455, 14 NE2d 494; People v. Trumbley, 252 Ill 29, 96 NE 573; People v. Billingsley, 67 Ill App2d 292, 213 NE2d 765.

Count three of the indictment failed to allege the act or acts by which defendant allegedly committed the offense of indecent liberties with a child, but set forth only the necessary statutory intent. Therefore, the indictment did not allege the commission of an offense. Although the jury found defendant “[g]uilty of the offense of indecent liberties — lewd fondling and touching . . . ,” the indictment did not allege that defendant by “. . . lewd fondling and touching . . .” committed the offense of indecent liberties with a child.

Defendant cannot be lawfully convicted of a crime not charged in the indictment. People v. Brown, 312 Ill 63, 143 NE 440; People v. Edward Martin, 62 Ill App2d 97, 210 NE2d 587. The trial court erred in overruling defendant’s motion to dismiss count three of the indictment. Judgment is reversed.

Judgment reversed.

ENGLISH and DRUCKER, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

To consider a question which appeared to have substance, we granted the State a rehearing and allowed its motion to file supplemental reports of proceedings. The question concerns the correctness of the record.

From the papers now before us it appears that in contrast with the language of the indictment that was the subject of our opinion, count three of the indictment returned by the grand jury and filed in the clerk’s vault, alleged that:

Thomas D. Ball and Richard Collier, each a person of the age of seventeen years and upwards, committed the offense of indecent liberties with a child, in that they, with the intent to arouse and satisfy the sexual desires of himself and Sandra Gaydos, lewdly fondled and touched the said Sandra Gaydos, a child under the age of sixteen years, in violation of Chapter 38, section 11-4 (a) (3), of the Illinois Revised Statutes 1965, ....

It is obvious that this count charged an offense. The indictment certified in the record on appeal and the typewritten copies of the indictment furnished to defendant and to the trial court omitted .the crucial words “lewdly fondled and touched the said Sandra Gaydos.” We are now informed that this omission was a clerical error. Defendant was arraigned, and he pled not guilty to the copy of the indictment which, because of the omitted words, was fatally defective.

Prior to trial defendant moved to quash count three of the indictment furnished him (and which constituted the court file) because its language failed to charge an offense. The supplemental reports of proceedings we now have disclose that the Assistant State’s Attorney who appeared for the State saw the difference between the copy of the indictment that was part of the court file and the indictment returned by the grand jury. The State asked leave to correct the court file either by furnishing a correct copy of the indictment or by obtaining a new indictment. Defendant’s motion to quash was denied. The cause was continued to allow the State an opportunity to make the correction. The correction was never made.

Thereafter, defendant went to trial on the erroneous copy of the indictment. It was this copy of the indictment that was read to the jury by the trial judge in his preliminary remarks during voir dire. Defendant was convicted of the offense sought to be charged in count three of the defective indictment. Throughout the proceedings in the trial court, the original of the indictment remained locked in the vault of the clerk.

After this conviction, defendant moved to arrest the judgment. His motion to quash was allowed to stand as his motion in arrest. The motion was denied. Defendant was sentenced. Now the State asks us to withdraw our opinion, “correct” the record to show the indictment returned by the grand jury, and review this appeal as if defendant had pleaded to and was convicted on what obviously was an adequate indictment.

We cannot do this. The reason is a simple one: defendant was arraigned, tried and convicted on a count of an indictment that was not returned by the grand jury. The conviction cannot stand. Gardner v. The People, 20 Ill 430; Sattler v. The People, 59 Ill 68. Thus, the record as “corrected,” rather than showing a basis for withdrawal of our opinion, reveals at an untimely moment a more glaring defect in the proceedings below.

In Collins v. The People, 194 Ill 506, 62 NE 902 the trial court was confronted with the same kind of clerk error. Before trial, the court was apprised of the fact that the indictment was defective or imperfect. The court set aside the order of arraignment and plea and “so much of the record as showed that a true copy of .the indictment had been furnished, . . . .” The court then allowed the State’s Attorney to serve defendant with a true copy and defendant was again arraigned. The Supreme Court found no error or prejudice in this procedure and affirmed .the conviction. A similar procedure could have been followed in the instant case, but was not.

As our opinion holds, the indictment on which defendant was arraigned, to which he pled not guilty, which he moved to quash and attacked by his motion in arrest of judgment, and which was read by the court to the jury at trial, contained a count that failed to charge an offense. We adhere to that opinion.

       There is no section 11-4(1-3) of Chapter 38. Conjecture may-lead to the guess that the language in Count Three of the indictment refers to chapter 38, section 11-4(a)(3), Ill Rev Stats 1967, c 38, §11-4(a)(3). However, in construing an indictment we are not at liberty to depart from the words in the indictment itself and speculate on what is possibly intended nor to supply matters of substance which have been omitted. People v. Fore, 384 Ill 455, 458, 51 NE2d 548; People v. Sullivan, 21 Ill2d 232, 237, 171 NE2d 623.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Luckey and Roscoe Hannah, Otherwise Called Judah Israel, Defendants-Appellants.
    Gen. Nos. 52,013, 52,017. (Consolidated.)
    First District, First Division.
    May 25, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and William Dean, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph Romano, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendants were found guilty of armed robbery in a bench trial, in which defendant, Alfred Luckey, was sentenced to serve a term of one to four years in the penitentiary and defendant, Roscoe Hannah, two to five years. The defendants seek to reverse their convictions upon the following contentions :

(1) That the trial court erroneously accepted their jury waiver which was not under standingly made in open court; and
(2) That the evidence did not establish their guilt beyond a reasonable doubt.

With regard to the first issue, we think there is no merit to the defendants’ contention. The record discloses a colloquy between the trial judge and the defendants. The trial judge asked both men whether they knew of their right to a jury trial, what the right consisted of and whether they were willing to waive that right and be tried by the judge. To each of these questions the defendants answered that they understood what was meant by a jury waiver and consented to be tried by the judge. There is nothing in the record to indicate that they did not hear or understand what was said to them about a jury trial. The defendants’ right to a jury trial was understandingly waived and the trial court’s explanation of that right was adequate.

No definite formula has been established to determine whether an accused has understandingly waived his right to trial by jury. The decision in each case must rest on the particular circumstances of each case. People v. Wesley, 30 Ill2d 131, 195 NE2d 708 (1964); People v. Bell, 104 Ill App2d 479, 244 NE2d 321 (1969). The cases relied upon by defendants are distinguishable in that in those decisions the accused did not have an adequate understanding in order to properly waive a jury trial. In the instant case the record shows that defendants adequately understood that they were foregoing a trial by jury.

The second issue requires a review of the evidence which supported defendants’ convictions. The crime occurred on February 14,1966, sometime after 3:00 o’clock in the afternoon at the Wallis Department Store in Chicago. The complaining witness was Felipe Rodriguez, who was the manager of the store. He stated that both defendants entered the store at the same time with Luckey going to the shoe department and Hannah walking around in the paint department. The witness was stationed behind the cash register and his helper, Eugene Carter, was engaged in assisting Luckey, who was looking for a pair of shoes. After browsing around, defendant Hannah left the store but returned. Luckey had a pair of shoes and both defendants were inquiring of Carter as to the price of a leather coat.

Rodriguez turned his back and was surprised by Hannah, who placed a gun behind his head. He felt the gun but did not see it. They proceeded to the cash register which was opened by Rodriguez. Hannah handed the gun to Luckey who then ordered Carter to come over. According to Rodriguez, Hannah then ordered the manager and his helper to a washroom in the back of the store. Hannah had the gun at this time. The witness and Carter went to the washroom and Luckey warned them not to move or he would kill them. Rodriguez said Luckey opened the door and warned them on three separate occasions. About 10 or 15 minutes later, another helper, Robert Carr, opened the washroom door. Rodriguez called the police and ascertained that about $300 was missing from the cash register and about 25 silver dollars had been taken.

The witness said he saw defendant Luckey in a lineup at a police station on February 16, 1966. He noticed that Luckey was wearing a style of shoes that was sold in the store. The witness stated that when Luckey entered the store on February 14, 1966, he was wearing brown shoes but later he was wearing a pair of Stacey brand shoes which Carter had been showing Luckey in the shoe department. The witness stated he saw Hannah in the police station on February 19, 1966. He had never seen either defendant prior to the robbery.

On cross-examination, the witness explained that the store sold many different brands of shoes besides the brand defendant Luckey was wearing. Rodriguez said that the store was busy before and at the time of the robbery. His description of Hannah was that he was wearing a three-quarter length dark coat with a Persian lamb hat which the witness described as a “Prussian cap” that was greenish in color. The only thing that Rodriguez could recall about defendant Luckey was that he was wearing a hat and the testimony concerning his shoes. The witness described the store as being about 60 feet square with the cash register approximately in the middle. He stated that he was too distant from the shoe store to hear any conversation between Luckey and the helper Carter.

The witness did not recall the description he gave to the police on the date of the robbery. On the 16th of February he was picked up by a police officer and taken to a station at 8:00 o’clock in the evening. At the station he was shown four or five men in a lineup from which he picked out the defendant Luckey. The only thing the witness recalled of the clothes Luckey was wearing was a pair of Stacey brand shoes, which were noticed because someone asked the defendant what type of shoes he was wearing. The identification of Hannah was at a police station on February 19, but the witness could not recall what type of clothing Hannah was wearing on that date. Rodriguez could not remember whether he had testified to the grand jury that the defendants had a shotgun at the time of the robbery.

The State called Eugene Carter, the helper in the store, who testified that the defendants walked into the store shortly after 3:00 o’clock on the afternoon of February 14, 1966, and were looking at merchandise. The defendant Luckey asked to see some shoes and Hannah left the store after looking at other merchandise. Defendant Hannah then reappeared in a few seconds and was walking around the store. Carter showed Hannah where the washroom was after the latter had requested directions. Carter stated that Luckey had tried on a pair of black Stacey shoes, size 10%, while carrying his brown shoes. Carter then noticed that Hannah was standing behind Rodriguez who was at the cash register of the store. The witness said Hannah was holding a shotgun, which he described as sawed-off, single barrel, twelve gauge shotgun. Carter was about five or six feet from the cash register. Luckey moved over to the cash register and Hannah passed the gun to him. Luckey pointed the weapon at Carter and took the witness and Rodriguez to the washroom where they were told to lie down by Luckey. Carter’s last glimpse of Hannah was of going behind the cash drawer and then walking toward the front of the store. The witness said that Luckey came back to the washroom three or more times, warning the witness and Rodriguez if they moved, he would shoot them. After about 10 or 15 minutes in the washroom, a part-time worker, Robert Carr, opened the washroom door.

Carter stated further that he had never seen either defendant prior to the robbery. He subsequently viewed these men at the police lineups where he identified them as the two men who committed the robbery. Carter said he picked out defendant Luckey at a police station on February 16, at a lineup consisting of five negro males. Carter said someone asked Luckey what type of shoes he was wearing and defendant replied they were a Stacey brand. A few days later, the witness picked out defendant Hannah from another police lineup which consisted of seven negro males.

On cross-examination Carter said that the defendant Hannah was wearing dark clothes, consisting of a long dark trench coat and a cap. Defendant Luckey was described as wearing a hat and a light jacket, characterized as a dress type coat. The witness stated that he went to a police station on February 16 and February 18, upon the request of the police. On these respective dates, the witness picked out defendant Luckey and then defendant Hannah. Carter said he talked to a detective Robbins on each date in the presence of the manager, Rodriguez, at the police station.

Robert Carr, a part-time worker at the store testified for the State. He said he arrived for work at about 3:38 p. m., on February 14 and noticed the front door was locked, but he was let in by a short man in a dark coat. He also noticed a tall man pick up a sweater then point a sawed-off shotgun at him and ordered him to go in the back. The witness said he could not identify the short man but identified defendant Luckey as the tall man with the shotgun. The witness went to the shoe department and lay down on the floor. He was told not to get up and stayed there for three minutes. The witness then got up and let Carter and Rodriguez out of the washroom. Carter said he next saw Luckey at a police station where he picked him out of a lineup of some five colored men. Carr recalled that someone asked the defendant what kind of shoes he was wearing and also recalled that the short man left the store but that Luckey remained for about fifteen seconds longer. Carr also said that Luckey was in his presence for about three or four minutes. Following a stipulation of the defendants’ ages, the State rested its case.

The defense called police officer William Robbins who had investigated this robbery and had questioned the three witnesses for the State. Robbins stated that Rodriguez described one of the robbers as being about five feet eleven inches tall, thin build and as having a thin mustache. The second man was described by Rodriguez as being shorter with a heavier build and wearing a black imitation fur hat. Robbins was asked when he first saw Hannah. He responded that it was on the 19th of February and that he believed Hannah had a little mustache, which he described as a heavy mustache and later a comparatively thin, medium mustache. Officer Robbins stated he interviewed all three State’s witnesses while they were in the same room. Robbins recalled that Rodriguez stated the shorter man was wearing dark clothes but the witness could not remember what Rodriguez said about the taller man.

The defendant Luckey then testified as to his activities on the date of the robbery. He then lived at 4850 West Adams in Chicago. He stated he got up early on February 14 to look for a job around 9:00 a. m. The defendant said his wife was sick and he went to a neighbor, Regina Curry, to see if she could sit with his wife. Luckey testified he spent the entire day in his apartment sitting with his wife and neighbor. He said they were engaged in reading the Bible and that he was a Jew. When asked by defense counsel what his religion was, he stated he was “not a religious person, not really.” Luckey stated that the occupants of his apartment took turns reading from the Bible with only a short break for sandwiches. Luckey said he remained home until 5:30 p. m., when his neighbor’s husband came home from work. Luckey said he left home once for about seven to eight minutes to make a phone call at Cicero and Adams streets.

Luckey said he first saw Rodriguez, Carter and Carr at the lineup on February 16 and that he was never at the store which was robbed. Defendant was arrested at Madison and Pulaski while wearing a black Russian hat and a brown suede jacket. According to defendant, the police officer who arrested him said that the defendant fit a description the officer had and that the officer said, “You don’t change clothes, do you ?” He was then taken to a police station where he was placed in a lineup with four other people, all of whom were of similar build but defendant said he was the tallest by “half a head.”

On cross-examination the State brought out that he was the brother-in-law of defendant Hannah, having married Hannah’s sister. Luckey explained that when he said he was not a religious man, he meant that he didn’t go to church on Sunday and that he learns what to do by reading to himself. Luckey said that while reading the Bible, he would stop periodically and explain passages which were not understood. The occupants of the apartment were also listening to a radio which was broadcasting a jazz program. Luckey said the radio was on all day. Defendant stated he left to make a phone call around twenty-five minutes before 9:00 a. m., on the morning of February 14. After the lineup was conducted, the defendant was asked by a detective about his shoes. He told them he wore Stacey brand black shoes and he gave them to the detective. Luckey testified he had purchased the shoes a couple of weeks before his arrest in an unidentified store, near Maxwell Street. He said that the shoes were Stacey-Adams brand and that he told the police they were Stacey shoes.

The defendant’s wife, Betty Luckey, who is defendant Hannah’s sister, testified that on February 14, 1966, she was home sick and that she was five months pregnant at that time. She remained in her apartment the entire day with defendant and her neighbor, Regina Curry. Her husband left only once during the day, around 9:00 a. m. to call her employer and her neighbor’s husband came home at 5:00 p. m. that evening. On cross-examination she maintained her husband made the phone call around 9:00 a. m. because she looked at a clock. She was positive that Mr. Curry came home a little after 5:00 p. m. Defendant’s wife testified that she spent the entire day of February 14 with her husband and neighbor engaged in reading and discussing the Bible. The witness did not recall what she ate but stated her husband did have breakfast. She stated that around 4:00 p. m. that afternoon she and her husband went with Mrs. Curry to her apartment, where the latter fixed sandwiches. Mrs. Luckey said they listened to Mrs. Curry’s radio in her neighbor’s apartment. They listened to music and Mrs. Curry fed her child. The witness said she remained there only for fifteen minutes. She further testified that there was no radio in her apartment, nor did she listen to a radio in her home.

Mrs. Regina Curry, defendant Luckey’s neighbor, testified that the defendant was in her presence the entire day of February 14, from 9:00 a. m. to 5:00 p. m. She related seeing the Luckeys in their apartment, and that her husband came home from work at approximately 5:30 that evening. The witness said that defendant did leave his apartment around 9:00 a. m. and returned in about seven to ten minutes. Her time in the Luckey’s apartment was spent reading the Bible and discussing various passages. Mrs. Curry said she went to her apartment across the hall at about 4:00 p. m. to fix some food for her daughter. All three individuals went to the Curry apartment and returned to the Luckey apartment in a short time. The witness mentioned that her two-year-old daughter was with her in the Luckey apartment. Mrs. Curry stated her radio was on in her apartment and was playing music. She remembered it was Valentine’s Day because of the music played that day. Mrs. Curry said it was quiet in the Luckey apartment. The defense called Charles Curry who stated he saw defendant Luckey on February 14, at about 5:15 to 5:30 in the afternoon at Luckey’s apartment. Upon his arrival, he joined the others in reading the Bible for about another hour or so.

Next, the defense called Hannah Israel, wife of the defendant Hannah. Her residence on February 14 was 1239 South Racine, in apartment 705 with her mother. She said she was with her husband from 9 o’clock in the morning to 7:30 the following evening, in apartment 608 at the above address. She arrived at that address with her husband from her mother-in-law’s house at 1433 West 13th Street. Defendant and the witness went to apartment 608 at 1239 South Racine to baby-sit for a Mrs. Walker and remained there the entire day. Mrs. Walker left the apartment at about 10:00 a. m. to go to work. She testified that neither her husband nor she left the apartment on that date until about 7:30 Tuesday night, having slept there on Monday evening. The only other persons present during the daytime were the witness’ son and Mrs. Walker’s two sons. Mrs. Israel stated on cross-examination that she had baby-sat for Mrs. Walker before, having known her about four years. She testified her husband did not work on the 14th but did work later that week. His employment was irregular, working for a dock company. The witness stated that she and her husband spent their time reading the Bible and discussing some things.

The defendant, Hannah, otherwise known as Judah Israel, testified in his own behalf. He stated that he accompanied his wife to Mrs. Walker’s apartment at about 9:00 a. m. on February 14 to stay with his wife while she was baby-sitting. Defendant said he did not leave that apartment on the date in question and he remained there with his wife until the following evening. He stated he was employed as a stevedore for the Chicago Produce Cold Storage Company on an independent basis, working only part of the week. He did not work on February 14. The witness said he had a rather large mustache for about five years; that he had this mustache on February 14, 1966. Defendant Hannah’s jail identification card with his photograph was admitted into evidence. Defendant maintained that he worked on Wednesday and Thursday of the week in question, but did not work on Friday. He said he and his wife found an apartment on that Friday and moved in the same day. The defendant’s mustache had the same growth for about two to three years.

Following the closing arguments of counsel, the trial judge found the defendants guilty as charged. The trial judge commented that he was disregarding Rodriguez’s testimony but stated the identification of the defendants was positive by both Carter and Carr. In doing so the trial court expressed doubt as to the creditability of the alibi evidence produced by the defense.

The defendants contend that this record discloses grave doubt concerning the identification of the defendants as the perpetrators of this armed robbery. As a corollary to this, defendants maintain that the trial court erred in disregarding the alibi testimony presented as a defense to these charges. On the other hand, the State insists that the defendants’ guilt was proved beyond a reasonable doubt, since that determination depended on the creditability of the witnesses which should not be disturbed on appeal. Furthermore, the State relies upon the rule that an identification by one witness of an accused is sufficient if that testimony is credible and positive. For the reasons set forth below, we agree with the State’s position on this issue.

The defendants’ brief discussed much of Rodriguez’s testimony and emphasized the fact that the trial court stated that he was disregarding that witness’s testimony. Defendants maintain that this fact strengthens the alibi defense and casts doubt upon the sufficiency of the State’s evidence to prove the defendants’ guilt beyond a reasonable doubt. The State does not question the trial judge’s action in disregarding Rodriguez’ testimony. However, the State disagrees with the defendants’ assertions that this fact alone warrants a finding that reasonable doubt existed. On the contrary, the State asserts that the identification of defendants by Carter and Carr were positive and unshaken, so that the trial court was correct in its ruling.

Defendants have correctly asserted that none of the identification witnesses testified with regard to the defendant Hannah’s mustache. The defendants have cited the cases of People v. Marshall, 74 Ill App2d 483, 221 NE2d 133 (1966) and People v. Martin, 95 Ill App2d 457, 238 NE2d 205 (1968), which dealt with a witness’ failure to notice a mustache as a facial characteristic that would not have been overlooked. Thus, doubt was cast upon the certainty of the identification in those decisions. These cases relied upon the decision in People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 (1966). In Kincy, a conviction for robbery was reversed due to the fact that the identification of the accused by the complaining witness was based solely on the type of jacket worn by the alleged robber. Among the numerous discrepancies in evidence, the court pointed out that the failure of the complaining witness to notice the defendant’s prominent mustache led the court to conclude that the identification was vague, doubtful and uncertain. These facts when coupled with an uncontradicted alibi prompted the court to hold that the accused’s guilt was not proved beyond a reasonable doubt. The Marshall and Martin decisions are of similar import.

We are of the opinion that there are sufficient facts in the instant case to distinguish the above decisions and hold that they are inapplicable in this appeal. All of the cases relied upon by the defendants emphasized a witness’ failure to take note of a mustache or to notice if an assailant had any such characteristic. However, there were other factors which further cast doubt on the identification testimony, i. e., discrepancies in height, build, type of clothing, etc. Furthermore, all of the defendants in those cases were identified by means other than a lineup. The distinctions are obvious.

In this case, the testimony of Carter and Carr was both believable and positive. Witness Carter described the clothing and build of each defendant. Carter picked out the defendants from separate lineups conducted on different days. Carter had ample opportunity to observe both the individuals who committed the robbery. As to Carr, he could only identify Luckey and very truthfully said he could not identify Hannah as the other man. With regard to the fact that Carter had not noted the presence of a mustache on Hannah, the record shows that no inquiry was made of this witness concerning whether he in fact noticed such a facial characteristic. The evidence regarding the mustache was introduced by the defense through police officer Robbins who testified that Rodriguez described one of the robbers as having a mustache. Defendant Hannah then stated he had a mustache for about four or five years and had one on February 14,1966.

The State has correctly relied upon the rule that where one witness’ identification is positive and credible when based upon the circumstances of the case, then that witness’ testimony is sufficient to convict, although that evidence is contradicted by the accused. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965); People v. Keathley, 109 Ill App2d 323, 248 NE2d 782 (1969). During the occurrence, Carter had two distinct opportunities to observe Hannah and the fact that Carter helped show defendant Luckey a pair of shoes and that Luckey came back to the washroom to warn him not to move on three occasions, gave this witness ample opportunity to observe both defendants. Carr’s testimony corroborates the identification of Luckey and the evidence showed he had ample opportunity to observe said defendant. The testimony of these identification witnesses was clear and unshaken. We could not characterize their testimony as ambiguous, vague or uncertain.

Defendants have emphasized that neither Carter nor Carr saw them taking money from the cash register on that date. Thus, they conclude that these witnesses could not testify to the crime of robbery. We cannot accept this position. Despite the fact that neither witness actually saw the money taken, we think the evidence adequately shows that they were present on the date the store in which they worked was robbed.

Finally, we come to the defendants’ assertion that the defense alibi was proven by evidence which when considered with the identification testimony establishes that defendants’ guilt was not proved beyond a reasonable doubt. According to the case of People v. Gooden, 403 Ill 455, 86 NE2d 198 (1949), at page 461:

“Evidence of an alibi cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime charged, and while the identification and whereabouts of the defendant when the crime was committed are questions for the jury, yet where, from the entire record, there is a reasonable doubt of the guilt of the defendant because of the uncertainty of identification, the conviction cannot stand. ... It is well settled that where there is evidence fairly tending to establish an alibi such evidence cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime.”

This rule applies to bench trials. Defendants argue that the judge in their case violated this principle by disregarding the alibis of these defendants. We find no merit in that contention.

The record discloses that the identification of these men was positive. Furthermore, the alibi testimony was inconsistent and mainly introduced by persons who were relatives of the defendants. For example, as to Luckey’s alibi, there were discrepancies as to the time of certain events, the testimony regarding the radio and who was present in the Luckey apartment. As to Hannah’s alibi, the fact that defendant and his wife remained for almost thirty-six hours in an apartment when their own residence was only on the next floor casts some doubt on the credibility of that defense. A reviewing court will not lightly disturb a trial judge’s decision as to the credibility of witnesses. People v. White, 63 Ill App2d 105, 211 NE2d 9 (1965). Thus, it is apparent that the rule of the Gooden case, supra, has no applicability to this case. The evidence overwhelmingly proved the defendants’ guilt beyond a reasonable doubt.

The defendants’ convictions are affirmed.

Judgments affirmed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Delmar K. Johannsen, Defendant-Appellant.
    Gen. No. 52,670.
    First District, First Division.
    May 25, 1970.

      Constantine P. Xinos, of Hinsdale, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Arthur Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Delmar K. Johannsen, was charged with the offense of speeding in violation of section 49 of the Uniform Act Regulating Traffic on Highways. In a trial without a jury he was found guilty and assessed a fine of $50 from which judgment he appeals.

The report of proceedings discloses that the defendant was charged with driving his car at the rate of 55 miles per hour in a 35 miles per hour speed zone. A sign indicating that 35 miles per hour limit was posted facing the defendant as he traveled north on Wolf Road in the Village of Hillside, Illinois. Officer Liehr testified that the electronic speed detecting device mounted on his squad car was the only means by which the speed of defendant’s vehicle was ascertained. At the time of its use the device was within 200 feet of the aforementioned sign in the direction in which defendant was traveling. The officer further testified that there was another 35 miles per hour sign about three-quarters of a mile south of the sign in question.

The basis of defendant’s request for a reversal of his conviction is contained in sections 49 through 50 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95½, §§ 146-147) which appear under the general title “Speed Restrictions.” Section 146 of chapter 95½ deals with “General Speed Restrictions.” Section 146.01 is entitled “Alteration of Limits by Department.” This section generally provides that a posted limit suspends the applicability of the general limit prescribed in section 146. The last sentence of section 146.01 states:

Electronic speed-detecting devices shall not be used within 500 feet beyond any such sign in the direction of travel; if so used in violation hereof, evidence obtained thereby shall be inadmissible in any prosecution for speeding.

This provision is also contained in section 146.02 on “Alteration of Limits by Toll Highway Commission” and in section 147 on “Alteration of Limits by Local Authorities.”

The issue presented, which is one of first impression, is thus whether the police may employ a radar speed detection device within 500 feet of any speed limit sign.

In support of his contention that the evidence obtained was inadmissible and should have been suppressed, the defendant directs our attention to People v. Powers, 89 Ill App2d 120, 233 NE2d 93. That case also concerned the use of a radar device, but the issue involved the burden of proof in cases in which an affirmative defense was offered. Powers sheds no light on the meaning of the provision in question in this case.

In the instant case, the arresting officer’s radar device which was the only means by which the defendant’s speed was ascertained was within 500 feet of the speed limit sign. If this were the only evidence, we would not hesitate to reverse the conviction. The evidence, however, discloses that the defendant passed another 35 miles per hour sign about three-fourths of a mile south of the sign in question. He was obviously informed of the speed limit since the second sign did not alter or change the speed limit, but was merely another reminder.

It is the primary rule in the interpretation and construction to be placed upon a statute that the intention of the legislature should be ascertained and given effect. People v. Price, 257 Ill 587, 593, 101 NE 196, 198. Statutes must be reasonably construed in accordance with practical application. Where two constructions of a law are proposed, this court will avoid the one which produces absurd results and renders the law difficult of operation. Ambassador East v. City of Chicago, 399 Ill 359, 365, 77 NE2d 803, 806.

To sustain the interpretation of the defendant would, in our judgment, be unreasonable. An officer would then be required when using a radar device to be more than 500 feet beyond any sign, regardless of how many similar signs had preceded it and been passed by the vehicle in question. The intention of the legislature was to give a driver time to adjust to the speed limit before subjecting him to radar detection. The defendant had more than 500 feet to so adjust and cannot complain.

For the foregoing reasons the judgment is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    Mack Mosley and June Mosley, Plaintiffs-Appellants, v. Katherine Spears and Madison Smith, Defendants-Appellees, and Francis Russell, Defendant.
    Gen. No. 53,805.
    First District, First Division.
    May 25, 1970.

      Heller & Morris and Jerome H. Torshen, Ltd., of Chicago (Jerome H. Torshen, of counsel), for appellants.
    Robert O. Rooney, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiffs appeal from an order which struck and dismissed the complaint as it applied to nonresident defendants, Spears and Smith, on the ground that plaintiffs did not exercise reasonable diligence in obtaining service of summons upon these defendants. On appeal plaintiffs contend that they did in fact exercise reasonable diligence in obtaining service.

On July 6, 1966, plaintiffs filed a complaint against defendants Spears and Smith in the Circuit Court of Cook County. It was alleged that on July 7, 1964, defendants were negligent in the operation of a motor vehicle which collided with plaintiffs’ vehicle “upon the Eisenhower Expressway at or near its intersection with Wells Street” in the City of Chicago. One of the original defendants, Francis Russell, was served with summons within a month. Defendant Smith was served in Detroit, Michigan, on August 7, 1967, and defendant Spears was served in Pontiac, Michigan, on August 10,1967.

Thereafter, defendants Spears and Smith moved under then Supreme Court Rule 4 (now Supreme Court Rule 103 (b)) to quash the summons for lack of diligence in service. Their motion substantially alleged that (1) they were not served until thirteen months after the lawsuit was filed almost two years after the occurrence; (2) that the records of the Chicago Police Department indicated the address of defendant Smith and the license number of the automobile; (3) that defendants were amenable to service either personally or through the Secretary of State’s office at all times between the time of the accident and the time that service was had; and (4) that defendants were prejudiced by the lack of diligence in obtaining service.

On October 3, 1968, the motion to dismiss plaintiffs’ complaint as to Spears and Smith was granted. On October 23, 1968, plaintiffs moved to vacate the order of dismissal and alleged, among other things, the following:

“7. That the original summons herein was placed on July 6, 1966, the first original duplicate of same being attached hereto and made a part of this record, showing Plaintiff attempted service on Katherine Spears at 334 Wessen Street, Pontiac, Michigan and Madison Smith at 431 South Jessie, Pontiac, Michigan and that service was not obtained by the Sheriff of Oakland County, Pontiac, Michigan, and the best record of this Plaintiff and to the best of this Plaintiff’s knowledge said Sheriff made a return not found, during the late months of August, 1966.
“8. That Plaintiff checked with the Secretary of State in the State of Michigan and found that the addresses were true and correct as could be determined at that time.
“9. That it was advised that the Plaintiff wait until 1967 and until new license applications were made and that the same was done and the new license check provided the Plaintiff with the same addresses. Whereupon Aliases were issued and service obtained in August, 1967.
“10. That the Defendant has not be (sic) prejudiced by any delay and that the Defendant has committed a tortious act within the State of Illinois and the Defendants’ whereabouts are not so easily ascertained as one whose residence is constant within the jurisdiction of the Court and that the equitable powers of this Court should distinguish and extend that case law applicable to Rule 103 (b) in this cause where the Defendants are out of the jurisdiction of the Court, service having been obtained within one (1) year and one (1) month after the filing of the law suit and within one (1) year and one (1) month of the tolling of the Statute of Limitations.”

After a hearing, the court ordered plaintiffs’ complaint stricken and dismissed with prejudice because of their failure to comply with the provisions of Supreme Court Rule 103(b).

Plaintiffs contend that they did exercise reasonable diligence in obtaining service upon defendants. They note that after the Sheriff in Michigan had returned their original timely summons “Not Found,” they were advised to stay the issuance of a new summons until the defendants filled out new Michigan license applications for the year 1967. In this regard they note that the delay in service was not due to plaintiffs’ lack of diligence, but from the failure of the Sheriff to obtain service. Plaintiffs also note that before a dismissal can take place it must be shown that no reasonable steps were taken to secure service, and that defendants’ substantive rights were prejudiced. Among the authorities cited are Vukovich v. Custer, 415 Ill 290,112 NE2d 712 (1953); Department of Public Works v. Lanter, 413 Ill 581, 110 NE2d 179 (1953); and DeCicco v. Reed, 77 Ill App2d 349, 222 NE2d 346 (1966). In DeCicco v. Reed, it is stated (p 351):

“In Vukovich v. Custer, 415 Ill 290, 112 NE2d 712 (1953), there was some delay in obtaining service of summons but the court held that it did not show a lack of diligence nor was the defendant prejudiced. The court notes at page 293:
“ . a technical and sterile application of the Civil Practice Act would contradict its command of a liberal construction and disregard its emphasis on the substantive rights of the parties.’ ”

Plaintiffs further argue that the fact plaintiffs were eventually able to obtain service on defendants indicates some diligence on their part; also, that the ruling of the trial court in this case goes far beyond the Appellate Court decisions which have established a standard for reasonable diligence. Among the authorities cited are Hahn v. Wiggins, 23 Ill App2d 391, 163 NE2d 562 (1959); Felton v. Coyle, 66 Ill App2d 4, 214 NE2d 359 (1965); and Davis v. Anthony, 67 Ill App2d 226, 214 NE2d 603 (1966) (abst).

Plaintiffs finally argue, citing numerous authorities, that dismissals for lack of diligence have been affirmed only in situations where the time lapse has well exceeded one year and no explanation has been given for the delay. They also note that the Civil Practice Act should be liberally construed with a view toward the policy of deciding cases on their merits.

Defendants contend that “a delay of thirteen (13) months after the Statute of Limitations expired in order to obtain personal service outside the State instead of promptly serving the Secretary of State under the motor vehicle act long-arm statute is such lack of diligence as warranted dismissal.” They note that there is nothing in the record to show that the Sheriff in Michigan returned the original summons “Not Found,” and that plaintiffs’ counsel was urged by the trial court to file an affidavit showing diligence in obtaining service, but counsel refused to do so. They also note that there was no need to wait thirteen months after the Statute of Limitations had expired when they could have immediately served the Secretary of State of Illinois under the Non-Resident Motorist Statute (c 95½, § 9-301). They finally note that thirteen months is a sufficient time to show that due diligence has not been followed. Among the authorities cited are Caliendo v. Public Taxi Service Co., 70 Ill App2d 86, 217 NE2d 369 (1966); Kohlhaas v. Morse, 36 Ill App2d 158, 183 NE2d 16 (1962); and Snyder v. Whitney, 310 Ill App 297, 34 NE2d 95 (1941). In Caliendo v. Public Taxi Service Co., it was stated (p 88):

“Although prevention of intentional delay was one of the primary reasons for the passage of Rule 4(2), the subjective test of intent is not required by the rule; rather, the criterion is one of reasonable diligence. Kohlhaas v. Morse, 36 Ill App2d 158, 183 NE2d 16, cited by plaintiff, lends no support to the proposition that the defendant must prove that the plaintiff intentionally delayed service. In upholding the dismissal of certain defendants the court said: ‘The unexplained failure to obtain service on a party until months after the statute had run could hardly be “reasonable diligence to obtain service, ....”’ The court went on to say that the holding was not to be understood as requiring that service be obtained within the time that suit must be filed, but that needless delay occurring after the time to file suit had expired would be a factor to be considered in ruling on the issue of due diligence.”

After examining the authorities cited by both sides as guidelines, we think that a motion for “dismissal for lack of diligence,” to obtain service of summons, is addressed to the sound legal discretion of the court, and it is only when there is an abuse of discretion that a reviewing court will interfere. Although time is a most important element in determining whether “plaintiff fails to show reasonable diligence to obtain service,” we believe the instant situation came within the provisions of the then Supreme Court Rule 4 (now Supreme Court Rule 103(b)), and within the guidelines set forth in Kohlhaas v. Morse, where the court said (p 162):

“However, when that became the law, it was observed that a plaintiff might file a complaint near the end of the statutory time limit, and then delay service of summons for an indefinite period, thereby virtually nullifying the time limit as any protection to a defendant against stale claims. To prevent this, the Illinois Supreme Court adopted its Rule 4 . . . .”

The record also shows that the following took place during the hearing on plaintiffs’ motion to vacate the order dismissing the complaint:

The Court: “I am not satisfied with the showing made in opposition. If you want to file an affidavit by the investigator or by the Sheriff, I will be glad to entertain it. I don’t think what you have told me here is anything more than saying the Sheriff said she isn’t there, therefore, you waited a year. That is not enough.”
Mr. Forman: “Well, my — ”
The Court: “Maybe you have an action against the Sheriff. What you have said isn’t satisfactory to the Court.”
Mr. Forman: “Well, your Honor, I am going to stand on my position. May I see the petition ?”
The Court: “Yes.”
The Court: “You are adding things. If you will file additional material — I will be glad to let you file what you have here, but there are gaps here, which are not explained. They are not explained as to what the investigator did or didn’t know. You don’t say anything as to what they did. If you want to file something else, I will be glad to let you file it. If you don’t, I will have to rule on what you have.”
Mr. Forman: “No, I don’t. I want to stand on what I have presented to your Honor.”
The Court: “Realizing the gaps are here?”
Mr. Forman: “Realizing whatever gaps are there.”
The Court: “I will have to sustain the motion then.”

The foregoing colloquy between court and counsel shows that the trial judge pointed out to plaintiffs’ counsel that he was not satisfied with the showing of diligence made by plaintiffs and so stated and informed plaintiffs’ counsel of the area not covered, but counsel did not accept or act upon the court’s suggestions and did not file anything additional.

As it was not incumbent upon defendants to show that they had been prejudiced by the delay, the burden was on plaintiffs to show that they had obtained prompt service. Karpiel v. LaSalle Nat. Bank, 119 Ill App2d 157, 255 NE2d 61 (1970).

We conclude that the trial judge did not abuse his discretion in striking and dismissing with prejudice plaintiffs’ complaint as to defendants Spears and Smith “for the plaintiffs’ failure to comply with the provisions of Supreme Court Rule 103 (b).”

For the foregoing reasons, the orders appealed from are affirmed.

Affirmed.

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


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Charles Franklin, Defendant-Appellant.
    Gen. No. 53,907.
    First District, First Division.
    May 25, 1970.

      Gerald D. Mindell and Kenneth L. Gillis, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Gayle F. Haglund, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was convicted in a bench trial for the offense of failing to register a firearm in violation of chapter 11.1, section 7 of the Municipal Code of Chicago. The defendant was fined $500. Defendant was also convicted of a charge of unlawful use of a weapon for which he was sentenced to one year probation. He has not appealed from that conviction. Both charges were the result of his being arrested on the night of September 14, 1966. In support of this appeal, the defendant contends that his right against self-incrimination was violated, that he was denied due process of law at his trial and that the ordinance under which he was charged is invalid since the City lacked the power to enact this legislation.

On September 25, 1968, a complaint was filed charging the defendant with violation of chapter 11.1, section 7 of the Municipal Code of Chicago which states:

“Every person after purchasing or otherwise acquiring a firearm from any person other than a licensed firearms dealer shall, within 10 days of the purchase or other acquisition, provide the City Collector with the information stipulated in Section 11.1-8 of this Chapter on a registration form designed or approved by the City Collector. If the purchase or other acquisition of the firearms precedes the effective date of this ordinance, the person shall register the possession of a firearm with the City Collector on forms designed or approved by the City Collector within 30 days after the effective date of this ordinance.”

At the trial, the only testimony presented was that of the arresting officer and the defendant. Officer Sadauski testified that on the night of September 14, 1966, he and his partner were in a patrol car in the vicinity of 4400 Woodlawn in Chicago, when he observed a group of teens and defendant, the latter standing near a wall and a fence. When the officer saw one youth drop a bottle of whiskey he stopped his car and approached this group. Witness saw defendant pull a gun from his belt that was under the defendant’s shirt and dropped the weapon to the ground. The officer identified defendant at the trial. Further, the witness stated the gun was dropped by defendant on the opposite side of a three-foot high chain link fence. Sadauski said that the defendant denied it was his gun. Subsequent search and investigation revealed that the gun was not registered. The gun and ammunition were introduced in evidence.

Defense counsel then moved to dismiss the registration complaint for failure to prove the elements of the offense as set forth in the ordinance. Defense counsel argued that no proof was made that the defendant had possessed the gun for more than ten days before his arrest. The City’s attorney argued that such an element is a matter of affirmative defense for the failure to register a charge once a prima facie case has been established. The trial judge denied the motion with the following language: “I think it would be impossible for the State to know how long he had the gun. That would be a matter which is only within the knowledge of the defendant, which is in the nature of an affirmative defense.” Subsequent discussion between court and defense counsel shows that the trial judge ruled that once possession of a firearm was proved, then a presumption of ownership arose which placed the burden of going forward with the evidence upon the defendant to establish that he came within the ten-day exception.

Defendant then testified as to the night in question. He said a police officer told him to go over the fence to retrieve a whiskey bottle thrown by one of his friends. After doing this, the police arrested him when they discovered a gun on the ground. Defendant denied possession of the weapon and stated he did not know to whom the gun belonged. The court found defendant guilty and this appeal followed.

The first contention of defendant is that the ordinance involved, both on its face and as applied by the trial court, violated his right against self-incrimination as guaranteed by the Federal and Illinois Constitutions. Defendant argues that by registering a firearm in compliance with the ordinance, the defendant is placed in a constitutional dilemma since the person who registers can be charged with possession of a weapon concealed on or about the person." Ill Rev Stats, c 38, § 24-1(a) (4) (1969); Municipal Code of Chicago, c 11.2, § 1.

As to all of the issues argued by the defendant, the City interposes the contention that the defendant is precluded from arguing the issues on appeal since they were not properly raised or preserved in the trial court. Zion Industries, Inc. v. Industrial Commission, 33 Ill2d 314, 211 NE2d 246 (1965). We are of the opinion that the City’s position is correct with regard to the defendant’s argument of self-incrimination. Defendant’s testimony denied both the possession and ownership of the weapon in question.

Despite this state of the record, defendant argues that the trial judge’s ruling that defendant had the burden of going forward with the evidence regarding the ten-day exclusion of the registration ordinance would have forced defendant to incriminate himself on the unlawful use of a weapon charge. Defendant cites the case of Marchetti v. United States, 390 US 39 (1968), and the companion cases of Grosso v. United States, 390 US 62 and Haynes v. United States, 390 US 85. This argument suffers from two fatal defects. First, the evidence showed no registration of this weapon in defendant’s name and the defendant denied ownership of the gun. Secondly, if the defendant had admitted ownership regarding the registration of the weapon, this would have had no incriminating effect as to unlawful use of a weapon charge. The gist of the latter crime is the concealing of a weapon in any vehicle or on or about the person, except in one’s residence or place of business. Ill Rev Stats, c 38, § 24-1(a) (4). Thus, the admission of the failure to register his acquisition of the gun or proof that defendant had purchased or otherwise acquired this weapon within 10 days of his arrest to avoid the registration requirement had no logical connection to the possession of the weapon on the night of his arrest. Therefore, if defendant had testified as to the failure to register, that evidence would not have been a “significant ‘link in the chain’ of evidence tending to establish his guilt.” Marchetti, p 48.

The second issue urged by defendant is that the trial judge committed reversible error by denying him due process of law. We find from the record that this question has been properly raised and preserved from the trial court proceedings. Defendant argues that when the trial judge ruled that the defendant should produce evidence as to purchase or acquisition within ten days of his arrest for failure to register, this was an irrational presumption which denied him due process of law. More specifically, the trial judge ruled that once possession of the weapon was proved then a presumption of ownership arose which required defendant to come forward with some evidence to establish that he came within the ten-day exception. Defendant argues this ruling violates the principles of Leary v. United States, 395 US 6 (1969) and Tot v. United States, 319 US 463 (1943).

The City argues there is no presumption involved in this case but rather that this appeal involves a situation where the burden of going forward with the evidence should be shifted to the defendant. The City points out that section 7 of the ordinance “allows one who acquires a firearm from someone other than a licensed firearms dealer a ten-day grace period in which to comply with the registration requirement.” It is asserted that this knowledge concerning the date of acquisition could be easily proven by defendant and would be difficult to establish by the City. Morrison v. California, 291 US 82 (1934).

The precedents relied upon by defendant regarding this contention are cases that have dealt with statutory subject matters. In the Leary case, supra, the United States Supreme Court struck down the statutory presumption that possession of marihuana was sufficient to infer that an individual had knowledge as to the illegal importation of that drug. The Leary decision relied upon the rationale of the Tot case, supra, where another statutory presumption was held unconstitutional as a violation of due process of law. The test of Tot was that there must be a rational connection between the fact proved and the ultimate fact presumed. The Court in Tot explained that the argument that the accused has a better means of proof is one of convenience as a corollary to the rational connection rule. Further, such argument of convenience is only permissible where the evidentiary inference is likewise valid. Thus, the Tot decision stands for the proposition that if requiring the accused to come forward with information within his peculiar knowledge will not be unfair or cause unreasonable hardship, then the presumption will be valid and comport with due process of law.

We are of the opinion that the rationale of the Tot case is applicable to the instant case and that no violation of due process was practiced upon this defendant. Once the defendant’s possession was established, we feel that the trial judge was correct in inferring that the defendant had purchased or otherwise acquired a firearm from someone other than a licensed firearm dealer. The evidence established that the gun was unregistered. Thus, the defendant should be required to introduce evidence to come within the ten-day exception, which would be evidence that would be peculiarly within the defendant’s knowledge.

It is well established that proceedings for a violation of a City ordinance are civil in form although quasi-criminal in character. City of Chicago v. Thomas, 102 Ill App2d 143, 243 NE2d 572 (1968). The trial judge in the instant case used a rebuttable presumption that possession inferred ownership. This operated to shift the burden of going forward with the evidence to meet the presumption, so that if any contrary evidence could be introduced, the presumption ceased to exist. McElroy v. Force, 38 Ill2d 528, 232 NE2d 708 (1967). Therefore, we are of the opinion that the trial judge did not deny the defendant due process of law by his ruling.

Finally, defendant assails the validity of the ordinance by contending that the City of Chicago lacked power to enact this legislation. Defendant cites the ease of Consumer Co. v. City of Chicago, 313 Ill 408, 145 NE 114 (1924), where it is stated on page 413:

“To sustain an ordinance as an exercise of the police power it must tend in some degree, within the authority of the municipality, toward the prevention of offenses or the preservation of the public health, morals, safety or welfare. It must be apparent that some such end or purpose is actually intended.”

The Cities and Villages Act, Ill Rev Stats, c 24, § 11-1-1 (1969), provides that the corporate authorities “may pass and enforce all necessary police ordinances.” It cannot be questioned that this ordinance was enacted under this authority and it obviously satisfies the requirements of the Consumers case, supra, as a valid exercise of the police power. Further support for the validity of this ordinance is found in the case of Brown v. City of Chicago, 42 Ill2d 501, 250 NE2d 129 (1969). There is no merit in defendant’s contention.

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois ex rel. Susan Franks, Plaintiff-Appellee, v. John Walter Franks, Jr., Defendant-Appellant.
    Gen. No. 53,915.
    First District, First Division.
    May 25, 1970.

      Littlejohn and Glass, of Chicago (William L. Littlejohn and James P. McCarthy, of counsel), for appellant.
    Sheldon S. Mells, of Chicago (Sheldon S. Mells, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a proceeding for child support filed in the Circuit Court of Cook County, Illinois, under the Uniform Reciprocal Enforcement of Support Act (Ill Rev Stats, c 68, § 50 et seq.). The basic support order was entered in a pending divorce action in Kansas.

On May 24,1968, the Cook County trial court dismissed the support petition “upon the finding of the Court that Respondent John Walter Franks, Jr. is not the father of the minor child of the Petitioner.” Respondent appeals from an order entered six months later under section 72 of the Civil Practice Act, which vacated the dismissal order of May 24, 1968. The principal issue presented for review is whether the petition stated grounds for relief under section 72.

On May 8, 1965, petitioner (plaintiff) and respondent (defendant) were married in Chicago, Illinois. On December 21, 1965, respondent, then being stationed in the army in Kansas, filed a suit for divorce in the District Court of Geary County, Kansas. Petitioner counterclaimed for divorce and alleged that she was expecting a child on July 1, 1966, and that defendant was the father of that child. She also asked for temporary alimony and the award of support money. Respondent answered, denying he was the father of the expected child. The court in Kansas thereafter entered an order on April 21, 1966, allowing temporary alimony and support in the “sum of $37.50 per week commencing April 25, 1966, said payments to continue until the birth of the child or further order of this court.” The child was subsequently born on August 27, 1966. (The briefs of both sides state that on June 3, 1969, the District Court of Geary County, Kansas, awarded the petitioner an absolute divorce and found the respondent to be the father of petitioner’s child.)

On October 27, 1966, petitioner, who was then living in Michigan, initiated proceedings in the Circuit Court of Wayne County, Michigan, under the Uniform Reciprocal Enforcement of Support Act of Michigan, and a reciprocal petition was forwarded to the State of Illinois where respondent was then living. Respondent answered the reciprocal petition and denied that he was the father of petitioner’s child. On January 17, 1968, respondent filed a motion in the Illinois proceedings requesting that petitioner and her child submit themselves to blood tests pursuant to the “Blood Test Act” (Ill Rev Stats, c 106¾, § 1). An agreed order was entered that the tests of petitioner and her child be performed by Dr. Frank Ellis in Dearborn, Michigan, and that the tests of respondent be made at the Michael Reese Research Foundation in Chicago. On March 20, 1968, the results of the tests made on petitioner and her child were forwarded to Dr. Albert Wolfe of the Foundation. On April 2, 1968, blood tests were performed on the defendant, and the results of those tests, together with the tests performed by Dr. Ellis- on the petitioner and her child were interpreted. On April 18, 1968, Dr. Bernard Stodsky of the Foundation addressed a written report to all parties interested, which report excluded the respondent as the father of petitioner’s minor child. The dismissal order of May 24, 1968, was then entered in the Circuit Court of Cook County.

On December 11, 1968, petitioner filed a petition in the Circuit Court of Cook County pursuant to section 72 of the Civil Practice Act, seeking to vacate and set aside the order of May 24, 1968. In substance the grounds set forth in the petition were: (1) that the trial court had no power to adjudicate the issue of the paternity of the child; (2) that no experts were called by the court to testify as to their findings of exclusion; (3) that fraud was practiced upon the court; and (4) that the State’s Attorney for Cook County did not properly represent plaintiff. On January 13, 1969, the court denied respondent’s motion to strike the petition of Susan Franks, and the order of May 24, 1968, was vacated and set aside. The order states that the court heard counsel for both sides and read the briefs submitted. This is the order from which respondent has appealed.

Basically, respondent contends that the section 72 petition failed to state grounds for relief and petitioner’s claim that the order of May 24, 1968, was void is without merit. The respondent contends that the special blood testing procedures followed in the instant case had to be adopted for the taking of the Michigan residents’ blood, and arrangements were necessary to deliver the blood test results so that those results might be interpreted. Respondent states, “The State’s Attorney, representing the plaintiff, recommended to the court the procedures finally adopted. A method of reporting the results was also adopted. The Associate Director of the Michael Reese Research Foundation prepared and sent a report, excluding the defendant as a possible father, directly to the trial court, with copies being forwarded to the State’s Attorneys in both Illinois and Michigan and to both parties’ counsel. Defendant willingly and explicitly followed the procedures outlined by the State’s Attorney. Either of the parties could have requested the presence of the experts in court to testify and to subject themselves to cross-examination. But neither party chose to do so.”

We have examined the section 72 authorities cited by respondent and do not believe a discussion of these cases is necessary here in view of our concept of the determinative factors. We agree with respondent that section 72 is not intended to relieve a litigant from the consequences of his own negligence, and this includes incompetency of counsel. (Antczak v. Antczak, 61 Ill App2d 404, 209 NE2d 838 (1965).) We believe this case calls for the application of the guidelines set forth in Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963), and McLaughlin v. McLaughlin, 83 Ill App2d 160, 226 NE2d 406 (1967). In Elfman, it is said (p 615):

“Under all of the circumstances, it is our opinion that the amended petition and its supporting affidavits presented a situation which addressed itself to the equitable powers of the trial court and that, in justice and fairness, defendant should be given an opportunity to appear and defend on the issue of damages.”

In McLaughlin, it is said (p 162):

“Whether such purpose is best accomplished by setting aside the judgment or refusing to set aside the judgment depends on the conduct of the parties, the relative hardship, prejudice or injustice which may result and the alternatives which are available to assure and promote compliance with legal procedure.”

The instant record indicates that the delay of six months in presenting the section 72 petition did not prejudice respondent. The basic divorce action was still pending in Kansas, and we think it was within the sound discretion of the Illinois court to entertain the instant section 72 petition at that time. Obviously, the May 24th order, which dismissed the support petition, resulted in a severe hardship on petitioner and her child and, under all of the circumstances, petitioner’s section 72 petition “presented a situation which addressed itself to the equitable powers of the trial court.” In justice and fairness petitioner should have been given an opportunity to proceed on the merits of her support motion. We find that the vacating of the order of May 24th was within the sound discretion of the court, and we find no abuse of that discretion. See Piper v. Reder, 70 Ill App2d 141, 147, 217 NE2d 487 (1966).

We further conclude that the question of the existence of the duty to support was established by the court in Geary County, Kansas, and, as a matter of law, “the constitutional requirement that it be given full faith and credit is met by clothing it with the same finality and effectiveness in the courts of Illinois as it enjoys in the courts of the State in which it was rendered and entered.” (Kresteff v. Kresteff, 79 Ill App2d 170, 173, 223 NE2d 720 (1967).) In Allain v. Allain, 24 Ill App2d 400, 164 NE2d 611 (1960), it was held that child support decrees are entitled to full faith and credit under the Uniform Reciprocal Act even though the amounts may be raised or lowered by the Illinois courts. In Light v. Light, 12 Ill2d 502, 147 NE2d 34 (1957), it is said (p 510):

“Policy considerations argue strongly that such decrees are entitled to full faith and credit. Unless they receive interstate recognition, the insulated judicial systems of the several States may become sanctuaries within which obligations that have been fully and fairly adjudicated in another jurisdiction may be escaped. These policy considerations have found expression in the decisions of many State courts which, on the grounds of comity, have given full effect, including equitable enforcement, to foreign decrees . . . .”

Where Illinois is the responding State under the Uniform Reciprocal Act and where the duty to support had been established by a sister State, the Illinois court should not, as a matter of policy and under the circumstances portrayed here, redetermine the question of the duty to support. In the instant case the duty to support had been adjudicated in a pending divorce action in Kansas, and we believe that it was improper at that posture of the Kansas proceedings for the trial court in Illinois to reject that finding by determining that respondent was not the father of the petitioner’s child.

Therefore, in accordance with the views expressed herein, the order appealed from is affirmed and the cause is remanded to proceed with the support petition on its merits and with full faith and credit given to the Kansas divorce proceedings.

Order affirmed and cause remanded with directions.

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