author: ME. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis McMillan and Kenneth Krause, Defendants-Appellants.
    Gen. Nos. 53,145, 53,146.
    First District, Fourth Division.
    April 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eobert McGee, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHAEGED

Armed robbery. Ill Rev Stats 1967, c 38, § 18-2.

JUDGMENT

After a bench trial, both defendants were found guilty as charged, and sentenced to terms of 3 to 9 years.

CONTENTIONS EAISED ON APPEAL

1. Defendant McMillan was prejudiced by the admission of an in-court identification resulting from an unfairly suggestive and prejudicial out-of-court confrontation.

2. Defendants were not proven guilty beyond a reasonable doubt.

EVIDENCE

William J. Dolighan, for the State:

On December 30, 1967, at approximately 4:00 a. m., he was walking south on the east side of the street in the 2800 block of North Orchard Avenue. That evening he had been to a party and had stopped at a nearby bar on his way back to the car. He had had a “moderate amount to drink”—three bottles of beer in three hours.

He observed an automobile going north which stopped under a streetlight about 25 to 30 feet away. A man got out from the passenger’s side of the auto and walked up to the witness. The man, identified in court by the witness as defendant McMillan, mumbled something from 15 feet away. The witness asked if he was speaking to him, and McMillan replied, “Yes. Give me your money.” The witness reached into a topcoat pocket when McMillan said, “Don’t mess with me ... or I’ll plug you with this,” indicating a gun in his right hand. The witness then handed him the wallet, which defendant took without looking into and went back to the car. Defendant got into the car through the passenger’s door and the car pulled away.

The witness could not ascertain, from 15 or 20 feet, whether there were other persons in the vehicle. He noticed that the car was pink with a white top, and believed it was a 1956 Chevrolet. The car being directly under a streetlight, he noted the license number as it pulled away, and reported it to the police as either PX 592 or PX 892.

He described the gun used in the robbery as black, not a revolver but resembling a German Luger. He identified the gun (which the State offered into evidence) as substantially similar to, or the actual weapon which had been in McMillan’s hands during the robbery.

The entire occurrence lasted about two minutes, half of that time in the face-to-face confrontation with McMillan from a distance of three feet. He described his robber as about 22 years old, five feet ten inches tall, with rather dark blond hair, wearing a black coat, light trousers, and black gloves. On the following morning (December 31), he went to the police station where he saw both defendants sitting next to a window wearing handcuffs. This was the first time he had seen Krause. The only others present at that time were police personnel. He identified McMillan as his robber. He was positive he was the one, although he did not recognize his voice.

Joseph Kondal, for the State:

He is a police officer, and on December 31, 1967, at about 6:00 a. m., he was summoned by a citizen who stated that two men had just forced a woman into a 1957 Chevrolet, pink with a white top. He followed and then stopped the designated vehicle which bore Illinois license number PX 897. He pointed out both defendants in the instant case as having been in the car at that time, along with a female passenger. Krause was driving the car.

He searched both men and recovered from McMillan a .22 caliber blue-stained high standard automatic pistol with seven cartridges in the magazine and one in the chamber. The gun was admitted into evidence without objection.

Frank Blasch, for the State:

He is a police detective who questioned Krause after his arrest with regard to the use of his automobile. Krause told him that he had not loaned the car to anyone since he had purchased it, and that he had been its sole driver. The license number of the car was PX 897, registered to Ronald Krause (brother of defendant Kenneth Krause).

Dennis McMillan, on his own behalf:

He first saw witness Dolighan cn December 31,1967, at the police station. He did not see him on December 30. On that day he was returning from Sycamore, Illinois, where he had visited his mother. He had left Chicago about 8:30 p. m. on December 29, arriving in Sycamore at 10:00 p. m. He drove around for a while in DeKalb until his mother came home from work, and visited with her from 12:30 to 3:30 a. m. He arrived back in Chicago at 4:45 or 5:00 a. m., went to Krause’s house, and parked the car, which he had borrowed from him. It was a pink and white 1957 Chevrolet. He had promised to have the car back by 5:30 a. m. Then he and Krause went “just riding around” near Krause’s house on the northwest side of Chicago.

On the date of the arrest, December 31, at about 6:00 a. m., he was with Krause and a girl by the name of Sandy. They were riding in the pink and white Chevrolet. He identified the weapon in evidence as one he had purchased on December 15,1967.

Kenneth Krause, on his own behalf:

He denied driving his automobile in the vicinity of Belmont and Orchard Streets (the scene of the robbery) on the morning of December 30, 1967. He had been at home the entire evening. He had allowed McMillan to borrow his automobile that evening at 8:00 p. m., to go out and see his mother. His automobile is a 1957 Chevrolet two-door sedan, pink bottom and white top, license number PX-972. When arrested, he told Detective Blasch that he didn’t normally lend his car out, but did not tell him anything about McMillan’s having used it. He never let anybody borrow the car except that one time. Nobody else had keys to the car.

On December 30, 1967, after McMillan returned at 5:00 a. m., Krause drove out to get something to eat. McMillan and Sandy King, who was living with Krause, went along, but they didn’t find a restaurant that was open, so they went back to his house.

OPINION

Defendant McMillan contends that the police station confrontation with the robbery victim was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. He argues that, under the totality of the circumstances, the in-court identification should have been excluded. See Stovall v. Denno, 388 US 293; Gilbert v. California, 388 US 263; and People v. Nelson, 40 H12d 146, 238 NE2d 378. While the police procedure in the instant case, consisting of a showup at the police station with the defendants handcuffed, merits severe criticism, the in-court identification may nevertheless be admissible if it is shown, by clear and convincing evidence, that the courtroom identification had an independent origin, arising from an earlier uninfluenced observation of the defendant. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; People v. McMath, 104 Ill App2d 302, 312-313, 244 NE2d 330, affirmed, 40 Ill2d 388, 240 NE2d 593; and People v. Cook, 113 Ill App2d 231, 252 NE2d 29.

The testimony of the victim indicates that he had an opportunity at the scene of the crime, under adequate lighting, to observe defendant McMillan face to face for about a minute, and for another minute as defendant had approached him and returned to the automobile. The victim’s description of his assailant to the police was positive and was corroborated by the recovery of defendant’s coat and the weapon found in his pocket. Moreover, there is strong corroborating evidence in the fact that the victim’s description of the automobile at the scene—unusual in its color combination—matched that in which defendant McMillan was riding when arrested. These facts clearly disclose an uninfluenced observation of defendant, prior to and independent of the showup, adequate to serve as the basis for the in-court identification. See People v. Cook, 113 Ill App2d 231, 252 NE2d 29, and the other citations above.

Both defendants contend that they were not proven guilty beyond a reasonable doubt. McMillan attempts to discredit the victim’s identification, particularly because of his failure to make a voice identification. We have already noted that we believe the identification of McMillan by the victim was positive and certain. Moreover, it is primarily the function of the trier of fact to consider contradictory or inconsistent testimony and to determine the credibility of the witnesses and the weight to be given their evidence. People v. Coulson, 13 Ill2d 290, 149 NE2d 96. There is no basis for a different conclusion on this point under the circumstances of this case.

McMillan offered an alibi at trial which he asserts also raises a reasonable doubt of his guilt. According to his own testimony, however, he was in possession of the car at the time of the occurrence (though he claims to have been some distance away). Firm identification testimony and the circumstances of defendant’s arrest provide strong links to the crime. Defendant’s alibi is further weakened because it is unsupported, since Krause’s testimony that they were together at another location related, at the earliest, to approximately 5:00 a. m., which was an hour after the crime was committed. The trier of fact, whose province it is to assess credibility, rejected defendant’s version of the facts, and we see no reason to disturb that decision, as we find the evidence in the record sufficient to establish McMillan’s guilt beyond a reasonable doubt.

The evidence connecting Krause to the crime is far less satisfactory. It indicates that he owned the automobile in which he and McMillan were arrested on the day following the occurrence, and that the car fitted the description of the one used by the robber. His testimony contains discrepancies and his alibi position is not strong. Nevertheless, the evidence inculpating him does not include an identification by the robbery victim, nor is there any testimony to establish that there was more than one person in the car at the time of the robbery. We consider it highly probable that McMillan and Krause were there together and that they did collaborate in the robbery. We cannot say, however, that the evidence as to Krause’s participation meets the standard of proof beyond a reasonable doubt. We are, therefore, required to reverse his conviction.

The judgment of the Circuit Court is affirmed as to defendant McMillan and reversed as to defendant Krause.

Affirmed in part, reversed in part.

DRUCKER and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    Henry S. Frank, Plaintiff-Appellant, v. Norvall S. Von Stith, et al., Defendants, and Jiro Yamaguchi, Intervening Petitioner, Appellee, v. Home Owners Insurance Co. and Home Owners Life Insurance Co., Respondents (Citation).
    Gen. Nos. 53,189, 53,291. (Consolidated.)
    First District, Fourth Division.
    April 8, 1970.

      Ash, Anos and Harris, of Chicago (Leonard Malkin and Howard Harris, of counsel), for appellant.
    Jacob J. Gordon, of Chicago (Harry G. Fins, of counsel) , for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff Henry S. Frank appeals from a judgment directing the citation defendants, Home Owners Insurance Co. and Home Owners Life Insurance Co., to deliver certain property in their possession to the intervening petitioner Jiro Yamaguchi.

Plaintiff instituted an action to confess judgment on a promissory note evidencing an $11,700 loan dated August 10, 1964, executed by the prime defendants Von Stiths. On June 7, 1967, judgment was entered in plaintiff’s favor in the amount of $5,000, which constituted the unpaid balance and costs. The following day a Citation to Discover Assets was issued and subsequently served upon the citation defendants on or about June 12, 1967.

The citation defendants had executed a loan to the Von Stiths on January 24, 1965, in the amount of $25,000. Norvall S. Von Stith, an employee of the citation defendants, had pledged 300 shares of common stock of Home Owners Life Insurance Co. plus renewal commissions due him as collateral for the loan. Upon the Von Stiths’ default, the citation defendants obtained judgment in the amount of $22,467.22 against them on May 9, 1966.

On February 20, 1967, Yamaguchi and citation defendants entered into an oral agreement whereby Yamaguchi would satisfy the judgment against the Von Stiths by payment of $20,500 in return for an assignment of the collateral “to better secure the monies delivered and to be paid.” After the judgment was satisfied by payment of $10,000 in cash and a judgment note in the sum of $10,500, and the judgment was satisfied of record, the citation defendants requested from the Von Stiths a written assignment and letter of direction as to the collateral before transferring it to Yamaguchi. Such documents, dated June 23, 1967, were received by citation defendants on June 30, 1967, subsequent to the time of service of plaintiff’s Citation to Discover Assets.

In the citation proceedings below, Yamaguchi, as adverse claimant to the collateral, filed an intervening petition alleging a priority based upon the oral assignment of February 20, 1967. The court held in favor of Yamaguchi directing the citation defendants to deliver the collateral to him. Plaintiff appeals, maintaining:

(a) the adverse claimant failed to protect his interest in the security in conformity with Article 9 of the Uniform Commercial Code;
(b) in any event, the oral assignment to the adverse claimant from the citation defendant was ineffective, since upon satisfaction of judgment, the citation defendants no longer retained an assignable interest in the collateral; and
(c) only the Von Stiths could have made a valid assignment of the collateral, and did not do so until after service of the citation.

OPINION

The Uniform Commercial Code provides that an assignment, “intended as security,” falls within the purview of Article 9, “Secured Transactions,” Ill Rev Stats, c 26, § 9-102 (2). The “Illinois Code Comment,” SmithHurd Illinois Annotated Statutes, c 26, § 9-102, at page 297, states:

“The phrase ‘intended as security’ again emphasizes the intention of the parties (objectively determined, of course) as the primary consideration rather than the form or name given to the transaction.”

If an assignment is “intended as security,” section 9-203 provides:

“(1) . . . , a security interest is not enforceable against the debtor or third parties unless
“(a) the collateral is in the possession of the secured party; or
“(b) the debtor has signed a security agreement which contains a description of the collateral . . . .”

The initial issue as raised by the parties is whether the assignment of the collateral from the citation defendants to Yamaguchi was “intended as security,” thereby falling within the purview of Article 9. The intervening petitioner Yamaguchi contends that his claim to the collateral is not in the nature of a security interest, but was intended by the parties to the assignment to be consideration for the satisfaction of judgment. This contention is refuted by the facts. Since the assignment ran from the citation defendants to Yamaguchi, the only interest, if any at all, acquirable was that of the citation defendants, which consisted solely of a security interest. Therefore, at the time of the alleged prior oral assignment of February 20, 1967, the citation defendants were incapable of passing the totality of ownership rights to Yamaguchi.

Secondly, Yamaguchi himself refers to the collateral as security. In his Answer and Counter Petition Yamaguchi states that the assignment was made, “to better secure the monies delivered and to be paid” and again during oral presentation in the trial court Yamaguchi’s attorney states, “We paid this money, we want our security.” We assume that Yamaguchi, who is an attorney, would not use such words of art without intention.

We also agree with plaintiff’s contention that once the judgment was satisfied, the judgment creditor had no assignable interest in the collateral and that, therefore, an assignment by the citation defendants was ineffective. Only the Von Stiths, as owners of the collateral, could have made a valid assignment. Since they were not parties to the purported oral assignment, that assignment could not have transferred their interest in the collateral. The written assignment by the Von Stiths (which was never introduced into evidence) was not delivered to the citation defendants until after the service of the citation. Therefore, Yamaguchi’s interest in the collateral was subordinate to that of plaintiff, who therefore, was entitled to the property in the possession of the citation defendants for the purpose of applying it to the satisfaction of his judgment. Buck v. Illinois Nat. Bank & Trust Co., 79 Ill App2d 101, 223 NE2d 167 (1967).

The order of the trial court is reversed and the cause remanded with directions to enter an order directing the citation defendants to deliver the property in their possession to plaintiff in accordance herewith.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    The American Insurance Company, a Corporation, Plaintiff-Appellee, v. Jeanette Formeller, Defendant-Appellee, Francis S. Lorenz, Director of the Department of Public Works and Buildings of the State of Illinois, Appellant.
    Gen. No. 53,631.
    First District, Fourth Division.
    April 8, 1970.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John L. Kirkland and D. Kendall Griffith, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

The Director of the Illinois Department of Public Works and Buildings (hereinafter referred to as “Department”) appeals from a judgment ordering Alex G. Malone, Supervisor of Claims of the Department, to be held in contempt of court and fined $10 for refusal to comply with a subpoena duces tecum requesting the disclosure of the method and manner of compliance of Louis J. Medina under the Financial Responsibility Law. (Ill Rev Stats 1967, c 95½, §§ 7-101 to 7-503.)

On December 22, 1964, the defendant was involved in an automobile accident with Louis J. Medina. Following the accident both defendant and plaintiff made inquiry of the Department with regard to liability insurance coverage on the vehicle driven by Medina. The Department’s Bureau of Traffic responded to these inquiries by stating that Medina had “apparently complied in every respect with the provisions of the Safety Responsibility Law,” but the Department was prohibited “from divulging the method of his compliance.”

Thereafter the defendant filed a proceeding for arbitration before the American Arbitration Association against the plaintiff pursuant to the uninsured motorist provision of the insurance policy issued by plaintiff to defendant. Plaintiff then filed a declaratory judgment action contending that its policy was not applicable to the claim filed by defendant at the American Arbitration Association since she did not establish that she was involved in a collision with an “uninsured automobile” as defined in the policy. Defendant argued that she had complied with all of the policy provisions.

During the course of the declaratory judgment action plaintiff issued a subpoena duces tecum for the discovery deposition of George T. March, District Engineer of the Department, and requested the production of “any and all written records showing the identity of the insurance carrier on the motor vehicle of Louis J. Medina, 4240 North Greenview Avenue, Chicago, Illinois, on December 22, 1964, the date upon which Mr. Medina was involved in an automobile accident with Mrs. Formeller, report of which was made to the State of Illinois, under Accident No. 5952.”

On failing to appear, a rule to show cause was issued against Mr. March. On September 18, 1968, Alex G. Malone, the Supervisor of Claims of District Number 10, Department of Public Works and Buildings, an assistant to Mr. March, appeared in court and refused to comply with the subpoena. For failure to comply, March was held in direct contempt of court and fined $10. It is from this order that the Department appeals.

The Department points out that the Uniform Act Regulating Traffic on Highways, § 141, Ill Rev Stats 1967, c 95½, provides that the accident reports and the information as to the method of compliance and financial responsibility of those reporting shall be confidential and that the Financial Responsibility Law, § 7-215, Ill Rev Stats 1967, provides that neither the action taken by the Department, the findings of the Department “upon which such action is based, nor the security filed as provided in this section shall be referred to in any way, nor be any evidence of the negligence or due care of either party, at the trial of any action at law to recover damages.” The Department argues that these statutes are a valid and constitutional exercise of the powers of the legislature, and that the trial court should have upheld Mr. March’s refusal to comply with the subpoena.

Plaintiff contends that before an injured, insured motorist can file a claim against his own insurance carrier under an uninsured motorist clause within the policy, he must first have proof that the negligent driver was uninsured; by withholding the identity of this insurance carrier, if any, the Department thus frustrates the purpose of these statutes, e. g., to assemble and supply information concerning funds available to compensate persons injured by another motorist’s negligent operation of a vehicle.

The Uniform Act Regulating Traffic on Highways, Article IV, § 138, Ill Rev Stats 1967, c 95½, imposes a duty upon the driver of a vehicle involved in an accident resulting in injury or property damage over $100 to file a report with the Department. Section 140 of the same Article IV provides in part:

(a) The department shall prepare . . . forms for accident reports required hereunder, which reports shall call for sufficiently detailed information to disclose with reference to a traffic accident the cause, conditions then existing, and the persons and vehides involved. (Ill Rev Stats 1967, c 95½, § 140.)

Section 140 does not specifically require information regarding insurance to be reported. The Department learns of insurance coverage, or the lack of it, through the Financial Responsibility Law, §§ 7-201 and 7-202, Ill Rev Stats 1967, c 95½. As soon as practicable after the receipt of the accident report the Department determines whether a deposit of security is required and what amount of security shall be sufficient to satisfy any judgment or judgments for damages resulting from an accident. (Ill Rev Stats 1967, c 95½, § 7-201.) A security deposit is required to be filed unless the Department determines that the motorist comes within an exception to the security deposit requirement. (Ill Rev Stats 1967, c 95%, § 7-202.) Several of these exceptions deal with automobile liability insurance coverage. Therefore, in deciding whether a security is required, the Department must necessarily learn whether a motorist carries insurance, and if he is insured, what company issued the policy to him.

It is at this point that the Department argues that a report filed under section 138, “Duty to Report Accident,” is made confidential, according to Article IV, § 141, which provides:

(a) All required accident reports and supplemental reports shall be without prejudice to the individual so reporting and shall be for the confidential use of the department except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have made such a report, or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirement that such a report be made to the department. (Ill Rev Stats 1967, c 95½, § 141.)

However, section 141 protects the confidentiality of only that information required by section 140 to be reported in the accident report form—“detailed information to disclose with reference to a traffic accident the cause, conditions then existing, and the persons and vehicles involved.” The purpose of section 141 is to encourage automobile accident victims to file truthful and complete reports of an accident without the fear that this information will be used against them in subsequent lawsuits charging them with negligence or lack of due care. Since section 140 does not require information regarding insurance, and as section 141 fails to provide that the identity of an insurance carrier be kept confidential, we believe that the disclosure of the name of the insurance carrier does not come within the category of information protected by section 141.

The Department further contends that section 7-215 of the Financial Responsibility Law hereinabove referred to bars the disclosure of insurance information.

In our opinion this section does not prohibit the disclosure of information regarding insurance coverage during a discovery proceeding. See People ex rel. Terry v. Fisher, 12 Ill2d 231,145 NE2d 588.

The disclosure of insurance information will enable an innocent accident victim to determine whether to seek damages from the other party to the accident or from his own insurance company if that party was uninsured. Conversely, the insurance company against whom a claim is made under the uninsured motorist provision of a policy should be able to learn from the Department whether the party charged with negligence was in fact uninsured.

The judgment is affirmed.

Affirmed.

STAMOS, P. J. and ENGLISH, J., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Morris, Jr. and Charles McElrath, Defendants-Appellants.
    Gen. Nos. 53,793, 53,794.
    First District, Fourth Division.
    April 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Armed robbery. Ill Rev Stats 1967, c 38, § 18-2.

JUDGMENT

After a bench trial, these two defendants were found guilty of armed robbery and sentenced to terms of 4 to 12 years (Morris) and 2 years to 2 years and one day (McElrath). A third defendant, Emerson Naugher, was also found guilty and admitted to probation. He has not appealed.

CONTENTION ON APPEAL

Defendants contend that the State failed to prove them guilty beyond a reasonable doubt.

EVIDENCE

Filipi Espinosa, complaining witness for the State:

On December 21, 1967, at approximately 5:30 a. m., he was in the vicinity of 677 N. Clark Street when three men “came upon” him, hit him over the head, kicked him, and put a knife to his throat. He identified defendants in court as his assailants (along with the third defendant not a party to this appeal) and also identified the knife they held to his throat. He had seen defendants on several occasions in the afternoon for about a week before, around the 900 block on La Salle. About an hour prior to the occurrence, he had three beers and then went to a nearby restaurant where he spent $2 from a twenty dollar bill. He was not intoxicated “too much.” He saw defendants walking together down the street. They first hit him from behind and took $18 from his pocket. They were still hitting him as he lay on the sidewalk when the police arrived. The police placed the defendants against the wall. Defendant Mc-Elrath was holding the money in his hand.

Leslie Foy, for the State:

He was a policeman, and at about 5:30 a. m., on December 21, 1967, while patrolling the 700 block of North Clark Street, he saw three male Negroes knocking a Puerto Rican to the ground. The three men, whom he identified in court as the defendants, dragged the victim into a hallway at 677 N. Clark. The witness and his partner got out of their vehicle and proceeded to the hallway, where he saw defendants holding the victim down on the stairs. HcElrath was holding a knife to the victim’s throat while Morris was taking money from his pocket. When the police entered, McElrath dropped the knife to the floor. The witness recovered both the money ($18) and the knife, which he identified in court, and they were introduced into evidence. He noticed other people loitering around the street, including two or three inside the vestibule at 677 N. Clark, one “sleeping off in a corner.” As he arrested defendants, he also placed two other men against the wall to search them, but did not arrest them.

In his opinion, the victim had been drinking but was coherent and not completely under the influence of alcohol.

Charles McElrath, on his own behalf:

He lives at 677 N. Clark. On the day in question, he was on his way to get some breakfast and passed the other defendants who were drinking wine in the hallway. He had never seen them before.

He saw the victim stagger across the street, then miss his step and fall on the sidewalk in front of 677 N. Clark. He had noticed the police car parked nearby and felt that he should help the victim before the police arrested him. He walked over to him to give him aid, explaining to the victim that the best thing would be to get off the street before being arrested. The witness told him he could rent a room at 677 N. Clark. They went inside the building where the other defendants were still drinking wine, and started up the stairs when two other men walked in behind. Then the two policemen came in with guns drawn and ordered everybody out of the hallway. The officers had everybody against the wall, including the victim, until one policeman said, “No, not him, he is the victim.” One of the other two men threw the knife down by the witness’ feet to get rid of it. The witness tried to explain to the officers that someone else threw it there.

The officer was lying when he testified that he (the witness) had held the knife and struck the victim. He was not dragging the victim into the hallway, but was helping him walk.

Emerson Naugher, on his own behalf:

On the morning in question he had just left a friend at the hotel at 677 N. Clark. Only he and Morris were in the hallway and they were drinking some wine. He never saw Espinosa in the hallway at that time. Two other men came in with McElrath right before the police, and they were searched but let go. The police searched the witness but found nothing. He then testified that “When the police came in they brought out all of us, wasn’t but three of us arrested.”

Earl Morris, on his own behalf:

He lives at 675 N. Clark and, at the time of the incident, was in the vestibule at 677 N. Clark with several men, including Naugher, to whom he had just given some wine. He saw the victim come in with McElrath and two others. They walked by him as the witness was on his way out. Then the police opened the door and put a pistol in his face. The police ordered all the men onto the sidewalk and against the wall, searched them, and took $18 from the witness.

He never struck the victim or took any money from him.

At the hearing in aggravation and mitigation, it was shown that McElrath had been convicted of aggravated assault in 1962. It was also shown that, over a period of 25 years, Morris had been convicted of manslaughter (reduced from murder), petty larceny twice, tampering with an automobile, burglary twice, and theft (reduced from robbery).

OPINION

Defendants’ only contention on appeal is that the evidence is so conflicting and confusing as to raise a reasonable doubt of their guilt. The basic conflict, however, is between the version of the occurrence offered by the State and that offered by defendants. The testimony of the victim is substantially corroborated by that of the police officer, what inconsistencies there were being minor and insufficient to render their testimony unworthy of belief. People v. McAfee, 80 Ill App2d 142, 145, 225 NE 2d 74. Each, in addition, positively identified defendants as the participants in the robbery.

Where the evidence is conflicting, it is the province of the trier of fact to determine the credibility of the witnesses and the weight to be accorded their testimony. We recognize, as argued by defendants, that for a conviction to be sustained, it must rest upon the strength of the State’s case, not the weakness of the defendant’s. People v. Coulson, 13 Ill2d 290, 296, 149 NE2d 96. But we find in this record sufficient credible evidence introduced by the State to establish defendants’ guilt beyond a reasonable doubt, and, thus, to support the trial court’s judgment. We cannot say that the proof was so unsatisfactory as to raise a reasonable doubt of guilt, and so to justify the interposition of our judgment in this regard. People v. Palmer, 26 Ill2d 464, 469, 187 NE2d 236.

The judgments are affirmed as to both defendants.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl L. Harkey, Defendant-Appellant.
    Gen. No. 54,592.
    First District, Fourth Division.
    April 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Suzanne M. Kohut, James N. Gramenos, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph Romano, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was found guilty by a jury of the crimes of robbery (July 26, 1968) and armed robbery (July 18, 1968) and was sentenced to a term of ten to fifteen years on each charge, the sentences to run concurrently. Defendant appealed directly to the Supreme Court which found that it had no jurisdiction on direct appeal and transferred the case to this court.

Defendant raises three points on appeal; (1) the prospective threat of testimonial impeachment for a prior conviction denied him due process and equal protection of the law; (2) the impeachment by nonstatement of a defense witness at the preliminary hearing was improper; and (3) the prosecution’s improper and prejudicial closing argument deprived him of a fair trial, and in the absence of such prejudice he would not have been proved guilty beyond a reasonable doubt.

On July 18, 1968, the defendant entered Morrow’s Nut Shop, located at 36 West Washington Street, Chicago, Illinois, at 8:35 p. m. He ordered Mary Williams, a salesgirl, to put the money from the cash register into a paper bag. He had a gun during the robbery. She saw the gun handle and barrel. The defendant escaped with $90. She described the defendant as thirty-six to forty years old, five feet, seven inches tall, 140 pounds in weight, with large eyes and a moustache. He was carrying a shopping bag. He wore no glasses. He had on a checkered shirt and dark pants. She only saw him for a short time.

On July 26,1968, the defendant again entered the store at 8:35 p. m. Miss Williams was the salesgirl. The defendant threatened her and told her to put the cash register money in a paper bag. He told her to walk to the back of the store while he escaped with $70. She described the defendant as wearing a blue sweater and brown pants. He was carrying a paper shopping bag during the robbery. She thought the defendant was younger, about twenty-seven years old, 175 pounds and five feet, nine inches tall. She had a real good look at him for approximately five minutes.

On July 29, 1968, the defendant came into the store and asked for Miss Williams. She did not answer him. When the manager called out the maintenance man’s name, the defendant walked out of the store. The police were called and Miss Williams told them that the man was the same one who had robbed the store twice before.

The defendant once again entered the store on August 8, 1968. Miss Williams walked slowly to the back door and asked an employee next door to call the police. Defendant left the store when he saw the police coming. He was arrested approximately one block from the store. He was carrying a shopping bag at the time of his arrest.

Miss Williams identified the defendant in court as the man who twice robbed the store.

The arresting police officers testified as to the apprehension and capture of the defendant.

Mrs. Lennie Zuehlke, store manager for the Morrow Nut Shop, testified that the defendant was the same man who entered the store on July 29. She described him as thin and tall, Negro, five feet seven inches, 160 pounds, with pockmarks or blemishes on his face. He looked as if he needed a shave. He was carrying a brown paper bag and a dollar bill when he entered the store.

Minnie Yelder, the defendant’s mother and the only witness for the defense, testified that her son is nearsighted and that he must continually wear glasses. On July 18 her son and she watched the White Sox ball game during the evening hours and then went to bed. Her son had come home from work at General Felt by 8:30 p. m.

Elmer Pendarvis, personnel manager at General Felt, testified that the defendant worked at General Felt for one day only. He started on Thursday night, July 11, at 11:00 o’clock in the evening and worked until 7:00 a. m. Friday morning.

Don Unferth, Regional Director and Club Statistician for the White Sox, testified that the Sox played an afternoon game on July 18 which ended at 3:28 p. m. The Sox did not play a night game on July 18.

Gordon Fullmore, a court reporter, testified that the transcript of defendant’s preliminary hearing showed that the defendant’s mother, Mrs. Yelder, never made any statement during the hearing that her son was home on July 18 and July 26.

Defendant contends that the prospective threat of impeachment for his prior conviction denied him due process and equal protection of the law. The defendant’s prior provable conviction was for burglary. Defendant’s counsel moved the court not to allow the State to introduce the prior conviction into evidence so that defendant could be free to testify in his own behalf. Counsel stated that defendant’s prior conviction had no bearing on the instant case. The State objected to the motion. The court deHied the motion and thereafter defendant did not testify. Defendant claims that the court abused its discretion by denying his motion to testify without being subjected to impeachment by his prior conviction. He cites Luck v. United States, 348 F2d 763 (DC Cir 1965) in support of this contention. In Luck the court found that the word "may” in its impeachment statute gave the trial court the discretion of whether or not to admit evidence of prior convictions. (See 14 DC Code § 305 (1961).) However, our court, in the recent case of People v. Gilmore, 118 Ill App2d 100, 254 NE2d 590, rejected the Luck doctrine. In Gilmore we held that:

Since the presentation of evidence to show an interest or prior conviction is the responsibility of the parties and not of the court, we too hold that “may” does not grant discretion to the court to receive or reject the proof of a prior conviction. When properly presented it is mandatory that the court receive evidence of defendant’s prior conviction.

Therefore, in view of our holding in Gilmore, we find that the trial court properly denied defendant’s motion.

Defendant also contends that the impeachment by a nonstatement of a defense witness at the preliminary hearing was improper. After carefully reviewing the trial record we believe that the defendant misinterpreted the evidence. At trial defendant’s mother was specifically asked if she made the statement during the preliminary hearing that her son did not commit the robberies because he was at home with her. Defendant’s mother answered that she had made such a statement. However, on rebuttal the court reporter at the preliminary hearing testified that the transcript contained no statement by the mother that defendant was at home with her on July 18 and July 26. We find no error in the admission of the court reporter’s testimony. Defendant’s argument that the defendant should have been represented by counsel at the preliminary hearing is answered adversely by People v. Bonner, 37Ill2d 553, 229 NE2d 527.

Defendant also argues that the prosecution made an improper and prejudicial closing argument (describing defendant as a “leech,” etc.) which deprived him of a fair trial and that in the absence of such prejudice his guilt would not have been proved beyond a reasonable doubt. Improper remarks of counsel during closing argument do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Nilsson, 44 Ill2d 244, 255 NE2d 432; People v. Stahl, 26 Ill2d 403, 186 NE2d 349; and People v. Swets, 24 Ill2d 418, 182 NE2d 150. Considered in the light of the evidence of guilt presented by the prosecution, it cannot be said that the remarks of the prosecution, referred to by the defendant, represented a material factor in his conviction and that the verdict would have been different had the comments not been made. People v. Nicholls, 42 Ill2d 91, 245 NE2d 771, and People v. Armstrong, 41 Ill2d 390, 243 NE2d 825. We find that the prosecutor’s remarks did not result in substantial prejudice to the defendant and that he received a fair trial in which his guilt was established beyond a reasonable doubt.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.

       Similar to the Illinois statute which reads:
      No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility: (Ill Rev Stats 1965, c 38, § 155-1.)

       See State v. Hawthorne, 49 NJ 130, 228 A2d 682.


text:
    Julia C. Mely, et al., Plaintiffs-Appellants, v. Vaneta Rosenberger, Defendant-Appellee.
    Gen. No. 69-39. (Abstract of Decision.)
    Fifth District.
    April 9, 1970.
    Frank H. Walker, of Mt. Vernon, for appellants; Howard & Howard, of Mt. Vernon, for appellee.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in fulL


author: REARDON, J.

text:
    Joseph E. Abernathy, Sr., Defendant-Appellant, v. People of the State of Illinois, Plaintiff-Appellee.
    Gen. No. 68-120.
    April 10, 1970.

      Robert F. Godfrey, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (John M. Karns, Jr., Assistant State’s Attorney, of counsel), for appellee.
   REARDON, J.

On October 3, 1968, a trial jury in St. Clair County, Blinois, convicted the defendant, Joseph E. Abernathy, Sr., of murder. Thereafter, the trial court ruled adversely to the defendant on his post-trial motion, and after a hearing in mitigation and aggravation sentenced the defendant to the Illinois State Penitentiary for a term of not less than 99 years and not more than 100 years.

From this verdict and finding and the order denying a new trial the defendant appeals to this Court. In support of his position the defendant contends:

1. That his guilt was not established by proof beyond a reasonable doubt, and
2. That there was immaterial and irrelevant evidence allowed to be introduced at the trial, which unfairly prejudiced him, and
3. That the final argument of the State’s Attorney contained misstatements as to the law applicable to the case to which the defendant unsuccessfully objected.

The record in this case discloses that on the evening of May 29, 1968, John Elliot Delk and his wife, Barbara, returned to their home in Centerville, near East St. Louis, Illinois, accompanied by her children, Theresa Sue Powell, age 10; Kevin Michael Powell, age 9; and Michelle Limn Powell, age 7. The family retired but were still awake when in response to a knock at the door, John Elliot Delk opened it and said, “Can I help you, Sir?” or “Yes, Sir, can I help you?” A voice answered, “You young punk.” Delk then closed the door and locked it and then a shot was heard. Mrs. Barbara Delk asked her husband if he was hurt and although he answered in the negative, he fell over, and then a second shot was fired. Mrs. Barbara Delk testified that she recognized the voice of the defendant and that she saw the doorknob turn and then saw the face of the defendant as he peered through the window of the door. She testified further that she said to the defendant, “Joe, go home. You will wake the children.” She testified that the defendant looked at her and then shot out the electric light which was burning on the front porch of the residence and which had illuminated his face at the door window. Mrs. Barbara Delk described her acquaintance with the defendant as a neighbor (two houses apart) for seven years, and how her children, including her daughter, Theresa, played with the children of the defendant. Mrs. Barbara Delk’s recognition of the face at the window in the door was supported by her daughter, Theresa, who testified that from her position in the upper bunk of a bunk bed, she could see the defendant through the window in the door.

The evidence of the prosecution discloses that on a day preceding the shooting, an altercation took place involving John Elliot Delk and the defendant’s son, Joseph Abernathy, Jr. John Elliot Delk had been incorrectly informed that young Abernathy had driven a car which struck his (Delk’s) son. In the argument that ensued, John Elliot Delk struck young Abernathy. Young Abernathy told his mother of the incident, but testified he did not tell his father. The defendant’s wife testified that she knew about this misunderstanding, but did not tell her husband anything about this. The defendant testified that he knew nothing about it until after his arrest.

The defendant denied that he had shot John Elliot Delk and testified that on the date of the shooting he had been in Springfield, Illinois, and returned home about 9:00 p. m., and did not leave his home thereafter until his arrest at about midnight. His alibi is corroborated by the testimony of his wife and son-in-law, each of whom claimed to be present in defendant’s home the entire evening when the shooting occurred. The defendant testified that he was not well acquainted with Mrs. Delk’s family and that he had not lived two houses away from her family. However, the defendant’s wife testified that they lived 200-250 feet apart for several years.

The prosecution in rebuttal offered evidence that on the night of the shooting the defendant and his wife were drinking in a tavern. This testimony was denied by the defendant.

It is the duty of the People to prove beyond a reasonable doubt that the defendant was guilty of the crime as charged. In making that proof and to sustain a conviction, the identification of the defendant must be established. Courts of review must peruse the testimony in the case to make certain that this has been done. To make such determination it is necessary that the Court consider with all other attendant circumstances the evidence bearing on the question of whether the witnesses had an adequate opportunity to make a definite identification. Mrs. Delk identified the defendant’s voice and stated that she recognized the defendant’s face when she looked through the window of the door. Her testimony remained unshaken, although she was closely questioned. The identification of the defendant by the victim’s daughter, Theresa, was equally positive. The fact that the testimony is contradicted by the defendant and his witnesses does not of itself destroy the identification. In making this determination all of the .evidence must be considered. The jury, sitting as the trier of the facts, must judge the credibility of the witness and may, if they so conclude, accept the testimony of the victim’s wife and daughter to the complete exclusion of the testimony of the defendant and his witnesses. (See People v. Solomon, 24 Ill2d 586, 182 NE2d 736 (1962); People v. Prochut, 27 Ill2d 298, 189 NE2d 290 (1963) ; People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963).) The identification of the defendant was sufficient to support a conviction and we, therefore, conclude that the State has sustained its burden of proof.

The defendant also urges that error was committed by the trial court in receiving evidence of a totally unrelated incident occurring the night before the shooting, involving John Elliot Delk and the defendant’s son, Joseph Abernathy, Jr. In support of this position the defendant cites People v. Simmons, 274 Ill 528. This case does not support the defendant’s position. The evidence submitted here was purely circumstantial and the jury was entitled to draw reasonable inferences and intendments from that evidence. Events which may be deemed to explain the reason for the commission of the crime are admissible and Courts will permit the introduction of such evidence as an aid to the understanding of the jury. Evidence of the nature objected to cannot be established through facts and circumstances of which the accused had no knowledge, but again this rule is limited by the fact that actual knowledge need not be shown when it appears that there was opportunity to be informed. This is a question of fact to be determined by the jury. Wharton’s Criminal Evidence, Volume 1, paragraph 172, page 335. Knowledge of the events occurring the night before was in the possession of defendant’s son and wife and a reasonable intendment from that evidence is that the event was probably known to the defendant. The probability of defendant’s knowing makes his knowledge of the incident a question of fact for the jury. Wigmore, Volume 2, Third Edition, § 389, page 328.

Defendant’s second objection relates to the failure of the police authorities to take the defendant to the hospital so that he could be identified by the victim. The defendant argues that the reason for such failure was that the prosecution knew that if the victim failed to identify the defendant, it would be necessary to submit this information to the defendant, since it would be evidence favorable to him. The prosecution argues that the identification was complete and that exhibiting the defendant to the victim was unnecessary. This facet of the case was fully argued to the jury and it can only be concluded that the jury did not accept defendant’s position as valid. We find no error.

The defendant charges that the final argument of the State’s Attorney was improper. The State’s Attorney responded to appellant’s argument, which called attention to the failure of the police to take the defendant to the hospital for identification by the victim. In making that response the prosecution stated that if such a showing had been made, it would not be proper evidence and that the defendant would have objected to it. The defendant disagreed and contended that it was an improper statement of the law relating to dying declarations. This objection was overruled. Mrs. Delk, when called as a rebuttal witness, testified that all during the time her husband was in the hospital, he was in a critical condition. She was asked—“It was your understanding the visitors were to be of the immediate family only?” The defendant objected to this question and the Court sustained the objection. During the course of the testimony of the Chief of Police, Theodore Shamalin, the State attempted to elicit from him the reason why the defendant was not taken to the hospital to be viewed by Delk. Defendant’s counsel objected and the Court sustained the objection. Responsibility for the failure to elicit such proof can hardly be charged to the prosecution. The objection of the defendant with respect to the State’s Attorney’s argument does not appear to be well taken.

At the hearing in mitigation and aggravation it was established that the defendant was fifty-one years of age and that he, shortly after being found guilty, walked away from the jail. The evidence militates against the idea of an intentional escape and supports the conclusion that the defendant was in a daze or was confused and left the jail premises with no intention of remaining away permanently.

The legislature of this State has provided that when sentences are imposed by courts they should be proportionate to the offense and should recognize the philosophy of rehabilitation and should not be arbitrary or oppressive. Ill Rev Stats 1967, e 38, par 1-2 (c), (d). Criminal sentencing involves a consideration of many factors. Among those are punishment, isolation, deterrence and rehabilitation. When a sentence by a trial court fixes a minimum term in excess of twenty years, parole eligibility remains at eleven years and three months. A sentencing judge cannot be expected to disregard the parole possibilities attached to his sentence, although this knowledge should not be his guiding criterion in imposing sentence. Parole and eligibility for parole are not the same thing. The sentence must take into account the offense and the circumstances under which it was committed and the prior good or bad conduct of the defendant. Sentencing is not an act of vengeance. Its justification can only be established when it is directed to the accomplishment of some goal. There are, unfortunately, in our society habitual offenders who are beyond the pale of redemptive treatment. However, it cannot be logically concluded from the record in this case that the defendant belongs in this category. The goal of the sentence may be a deterrence, or it may be an example to others, or it may seek rehabilitation of the offender to a law abiding society. Sentences must be tailored to fit the offender as well as the offense. In attaining the goals of deterrence, example or rehabilitation the sentence must be capable of being understood as contributing to some or all of those goals. All concerned need to know that the imposition of the sentence was done carefully and with a discernible purpose.

At the hearing in mitigation and aggravation the State made an oral offer of a nineteen-year-old plea of guilty to the offense of assault with intent to commit murder and a subsequent sentence on that plea of two years probation. The State indicated that this was the only plea or conviction that they were able to find on the defendant’s record. It is not certain from the record whether or not a plea was entered to a felony, although it was indicated that the offense to which the plea was made was assault with intent to commit murder, which was a felony in Illinois in 1949. However, it was suggested to the trial court by the State that the offense to which the defendant had pied in 1949 was the same as the present day offense of aggravated assault, which is a misdemeanor since it is not exclusively punishable by death or by a sentence to the penitentiary.

An Appellate Court is vested with the power to reduce the punishment imposed by the trial court. Prudence, caution and common sense dictate that this power be used sparingly and only when necessary to rectify injustice. A review court must recognize that a trial judge ordinarily has the superior opportunity in the course of a trial and during the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed. (See People v. Taylor, 33 Ill2d 417, 211 NE2d 673.)

This Court, after full consideration of the evidence and the proceedings, is unable to countenance this sentence. What was intended by the sentence? Review courts should not, as the English cases say, “tinker” with sentences. However, when it appears that the sentence errs in principle, a review court must intervene and correct that sentence. In our view sentence reduction by an Appellate Court is an affirmative function to be employed when necessary to correct error and' attain justice. We conclude that the spirit of our law is that a spread between the minimum and the maximum sentence should be provided, so as to permit the Parole and Pardon Board to release the defendant at the best time for all concerned. The 1968 approved draft of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing, Alternatives and Principles provides:

"In order to preserve the principle of indeterminacy, the Court should not be authorized to impose a minimum sentence which exceeds one-third of the maximum sentence actually imposed.”

This principle has been approved in People v. Jones, 92 Ill App2d 128, 235 NE2d 379. We do not believe that Courts are or should be bound to this mathematical formula, but we would as Justice Craven did in People v. Scott, 253 NE2d 553, view it as—"A guide and not as a hard and fast rule.”

When a trial court imposes a sentence with a minimum of 99 years and a maximum of 100 years, the reasons for such a sentence must be discernible from the record. Indeterminate sentencing can only function when sentences are imposed that give consideration to the principles of indeterminacy. This Court cannot lay down any rule that would be applicable generally to criminal cases as to the required spread between a minimum and a maximum sentence. However, this is not to say that a substantial spread should not be provided. This unexplained sentence, not being in accord with the principles surrounding the imposition of indeterminate sentence, is, therefore, set aside.

Pursuant to former section 121-9 of the Code of Criminal Procedure of 1963, now Rule 615 of the Supreme Court Rules (Ill Rev Stats 1969, e 110A, par 615), the minimum sentence in this case is reduced to twenty years and the maximum sentence is hereby fixed at thirty-five years. With the sentence thus modified the judgment of the Circuit Court of St. Clair County is affirmed.

Sentence modified; judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Dean Bell, Plaintiff-Appellee, v. Continental Assurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 53,340.
    First District, Third Division.
    April 16, 1970.

      Hopkins, Sutter, Owen, Mulroy, Wentz & Davis, of Chicago (Edward W. Rothe and W. L. Heubaum, of counsel), for appellant.
    Bernard Spak and Gomberg, Levin and Rosen, of Chicago (Edward I. Rosen, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff seeks to recover total disability benefits under a policy of insurance issued by defendant. Cross-motions for summary judgment, supported by affidavits, were filed by the parties. The court sustained plaintiff’s motion and entered judgment in his favor for $10,506.66. From that judgment defendant appeals. The issues presented for review are (1) whether plaintiff’s insured occupation was that of “planer operator” and (2) whether plaintiff was totally disabled from pursuing his regular occupation. A somewhat detailed account of the transaction is necessary to an understanding of the issues.

In August 1962 an application for insurance was filled out by an agent of the defendant in accordance with plaintiff’s answers to specific questions. In response to a question relative to occupation, plaintiff stated that he was a “planer operator.” Upon the discovery that defendant’s rate book contained no classification for “planer operator,” defendant’s agent told plaintiff that for rate purposes he would be listed as a “machinist” and that the term “planer operator” would be used to describe his duties. The application was signed by the plaintiff and a policy of insurance was issued. It is this application for insurance which the defendant principally relies upon to support the position that plaintiff’s insured occupation was that of “machinist.”

On June 3, 1963, the plaintiff left work complaining of back pain. He was found to be suffering from a ruptured disc and surgery was performed. He was unable to return to work until January 13, 1964, a period of over seven months, during which time he received benefits under the insurance policy here involved. When he returned, he was unable to lift heavy weights or to stand for long periods of time and for those reasons he could no longer operate a planing machine. Hence, when he resumed work it was as a “bench hand,” a position which, according to his employer’s personnel records, required special training. As a “planer operator” he used a machine to rough out metal stamping dies from bar stock. A “bench hand” operates smaller machinery such as lathes, shapers, milling machines and drill presses. It is undisputed that both skills can be accurately classified under the more general descriptive title of “machinist.” The insurance policy upon which plaintiff bases his claim defines “total disability” as follows:

“ ‘Total disability’ means the complete inability of the Insured to engage in his regular occupation until Monthly Indemnity has been paid for sixty months of any period of continuous disability; thereafter during the remainder of such period, ‘total disability’ means the inability of the Insured to engage in any and every occupation for which he is reasonably fitted.”

This provision describes two distinct types of disability-coverage under the definition of total disability. The first relates to the inability of the insured to engage in his regular occupation, for which type of total disability the policy restricts coverage to not more than sixty months. Beyond the sixty-month period, total disability is defined as the inability of the insured to engage in any occupation and the coverage provided is for the duration of such disability. Plaintiff has not alleged, and it is not necessary for him to prove, that he is incapable of gainful employment in any occupation. His claim is based solely on the alleged inability to engage in his regular occupation. Since the facts are not disputed, the issue will depend on the precise meaning of the phrase, “to engage in his regular occupation” and the significance to be attached to the statements made by plaintiff in the application for insurance. We proceed to a consideration of those questions.

It has been held that under an “occupational disability” policy of insurance, the name usually used to describe the type of risk assumed by the insurer in the present case, the insured need only be incapable of performing the duties of his particular occupation in order to be considered totally disabled. Buffo v. Metropolitan Life Ins. Co., 277 Ill App 366; Sibley v. Travelers’ Ins. Co., Hartford, Connecticut, 275 Ill App 323. The policy here in question becomes operative when the insured can no longer engage in his regular occupation. There is an undoubted relationship between the performance of duties and engaging in a particular occupation. Although we recognize that the former is included to some degree in the latter, it is the extent of inclusion which in this case must be determinative. In the instant case the insured, having been rendered incapable of functioning as a “planer operator,” can no longer perform the duties he described in the application for insurance. The fact that other duties which can be generically classed under the term “machinist” can be performed by him raises a question as to the scope of this insured’s disability coverage. Whether the phrase “to engage in his regular occupation” has reference to the performance of familiar duties only or to those duties specifically listed in the application for insurance or to any duties which can be classed as those of a machinist is not clear from the policy. The rule of construction which governs under such circumstances is well settled. Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured. Mosby v. Mutual Life Ins. Co. of New York, 405 Ill 599, 92 NE2d 103; Wolf v. American Cas. Co., 2 Ill App2d 124, 118 NE2d 777. We must consider the issues with this rule in mind;

Plaintiff’s affidavit, together with the affidavit of defendant’s sales agent, shows that plaintiff sought insurance as one engaged in the occupation of “planer operator.” Thus it was apparently assumed that “planer operator,” rather than being merely descriptive of duties, was a distinct occupational class. As stated by defendant’s sales agent the term “machinist” was the only rate classification under which a rate for plaintiff’s “occupation” could be established. That the listed occupation was only a general description for rate determination is given added weight by the affidavit of the defandant’s actuary. He averred that defendant uses four occupational classes for males and that both “planer operators” and “bench hands” are classified as machinists for insurance risk purposes. For insurance rate purposes many related occupations can be considered as posing an almost identical underwriting risk. Lawyers, doctors, nurses and teachers may all be classified as professionals and a rate structure devised based on the probability of members being occupationally incapacitated. Use of such a method, however, would not require a court to interpret the contract as if the medical, legal and educational professions were not, in fact, distinct occupational classes. A lawyer who is no longer able to practice law but is able to teach, is nonetheless occupationally disabled so far as his regular occupation is concerned.

As the facts clearly demonstrate, the term “machinist” in the policy here in question was one used for the convenience of the insurer. By using a common denominator upon which underwriting risks could be classified, it enabled the insurer to establish a corresponding rate structure. As averred in the affidavits of both the plaintiff and the defendant’s sales agent, it was understood at the time of the application for insurance that the term “machinist” was used for insurance rating purposes only. It did not change plaintiff’s regular occupation. Thus, whether “planer operator” is considered merely descriptive of duties or as a distinct occupational class, plaintiff is entitled to recover. Regarded as a description of duties, the ambiguity involved in the phrase “to engage in his regular occupation” must be resolved in favor of the plaintiff, and his ability to perform the duties listed in the application entitled him to policy benefits.

The judgment of the Circuit Court granting plaintiff’s motion for summary judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ellis Townsel, Defendant-Appellant.
    Gen. No. 53,674.
    First District, Third Division.
    April 16, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Ellis Townsel, was charged with the theft of an automobile! After a bench trial, he was convicted and sentenced to a term of one to three years. Defendant’s sole contention on appeal is that the trial court erred in denying his motion to suppress the evidence. Because of the nature of the argument on appeal, it is necessary to note only the evidence adduced at the hearing on the motion to suppress the evidence.

On May 20, 1968, Officer Victor Ross of the Chicago Police Department responded to a radio call that three men were creating a disturbance by shouting from a 1960 brown Chevrolet at 120th and Indiana in Chicago. As the officer drove up to the area, he observed the automobile with its windows rolled down. The male occupants of the auto were shouting at a woman who was standing some distance away. The woman was returning the shouts and all were using loud and profane language. The men in the car were holding a large poster picture of the woman and were threatening to destroy the picture; the woman was telling them not to do so. After the officer heard the shouting and observed the scene, he approached the auto and asked the three occupants for identification. Defendant was seated in the driver’s seat and was sleeping. The officer asked the other two men for any type of identification, but since defendant was in the driver’s seat he was asked for a driver’s license or proof of ownership; defendant was unable to provide either. The officer arrested the three men and the woman, charging them with disorderly conduct. He returned to his squad car, checked a list furnished to him by the police department and ascertained that the automobile was stolen. Wylie Russell, one of the occupants of the auto, testified at the hearing that they had driven the woman to the area, were waiting for her to return and that there was no shouting. Defendant’s motion to suppress was denied, and the trial followed.

On this appeal, defendant contends that the trial court erred in denying his motion to suppress the evidence. He argues that he was illegally arrested for disorderly conduct, urging first that the officer did not have probable cause to arrest any of the occupants in the car because none of them were engaged in disorderly conduct. Defendant also argues that even if the other occupants were legally arrested, he was not because he was sleeping when the officer came up to the automobile. He contends that as a result of the illegal arrest, any subsequent evidence was tainted and could not be used against defendant.

The Criminal Code, Ill Rev Stats 1969, c 38, § 107-2 (c) provides that a peace officer may arrest a person when:

“He has reasonable grounds to believe that the person is committing or has committed an offense.”

The term “offense” includes misdemeanors as well as felonies. People v. Barbour, 108 Ill App2d 334, 247 NE 2d 634 (1969). And whether reasonable grounds exist depends upon the facts and circumstances of each case. The People v. McCrimmon, 37 Ill2d 40, 224 NE2d 822 (1967). In The People v. Macias, 39 Ill2d 208, 234 NE2d 783 (1968), the court held at p 213:

“. . . the test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.”

In the instant case the arresting officer had received a complaint that three men in an automobile were causing a disturbance. When he arrived at the scene, he observed and heard the men in the auto exchanging obscenities with a woman standing some distance away. Clearly these actions constituted disorderly conduct, and the officer had reasonable grounds to make the arrests. Moreover, under the facts and circumstances of this case, he also had probable cause to arrest defendant. While defendant was sleeping at the moment the officer stepped up to the automobile, he had received a complaint which stated that three men were disturbing the peace, and it was reasonable for him to believe that defendant had been engaged in disorderly conduct. Having legally detained defendant, the informatian which subsequently came to the attention of the officer was proper and involved no violation of defendant’s rights.

A case cited by defendant, United States v. Ruffin, 389 F2d 76 (7th Cir 1968), is distinguishable from the instant case. In that case the court found that the initial arrest was improper because it was based merely on an observation by the officer of one of the defendants running through a parking lot. In the instant case, the officer not only received a report about a disturbance but also observed the commission of an offense.

Defendant also argues that the officer’s demand for a driver’s license or proof of ownership constituted an illegal search of defendant. We do not agree that a search occurred. A search implies a prying into hidden places for that which is not open to view. People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964). After a legal arrest, the officer had the right to ask the party seated in the driver’s seat for identification. Moreover, even if the request to see a driver’s license could be deemed to be a search, the law prohibits only unreasonable searches, and whether a search is reasonable depends upon the facts of each case. The People v. Wright, 42 Ill2d 457, 248 NE2d 78 (1969). Clearly the actions of the officer in the instant case were reasonable and his demand for identification was proper.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Otis McNeil (Impleaded), Defendant-Appellant.
    Gen. No. 51,553.
    First District, Third Division.
    April 16, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Otis McNeil, was charged with the crime of armed robbery. After he was found guilty of that charge by a jury, he was sentenced to a term of twenty to thirty years. On appeal, it is urged that defendant’s motion to quash the search warrant was erroneously denied, that certain evidence introduced at trial by the State was not properly identified, that the trial court erred in allowing a complaining witness to identify a co-defendant not on trial, and that the court erred in not conducting a hearing in aggravation and mitigation pri- or to sentence.

Prior to trial, defendant made a motion to quash the search warrant and to suppress the resulting evidence, contending that the search warrant was illegal. After a hearing, the trial court denied the motion, and certain property seized as a result of the search, a fur coat, was introduced into evidence at trial. In view of the nature of the arguments on appeal, it is necessary to note only certain pertinent facts.

On September 2, 1965, two armed men wearing sheer nylon stockings over their heads entered the Berkowitz Fur Company located in downtown Chicago. Two employees were bound with tape and forced into the vault by the robbers, who then filled two bags with furs and departed. Both employees identified defendant as one of the robbers, and also identified a fur coat recovered from defendant’s home as one which had been taken in the robbery.

Defendant first contends that the search warrant should have been quashed and the resulting evidence suppressed because the affidavit for the search warrant presented to the issuing court by the police officer did not supply sufficient probable cause to justify the issuance of the warrant.

The affidavit of the officer was presented on September 11, 1965. It stated that on that day the officer had received information from a confidential informant who had furnished him with reliable information in the past. The affidavit went on to state that the informant told the officer that he had been in the second-floor apartment at 2156 South Millard Avenue in Chicago, the residence of a female Negro named Frankie McNeil on the same day and had seen a quantity of mink stoles, jackets and fur coats, valued at about $50,000, which were the proceeds of an armed robbery of Somers Furriers, which occurred on the same day. On the basis of this affidavit, the search warrant was issued. A search of the aforesaid apartment in which defendant lived revealed the property for which the search had been authorized, the furs taken in the Somers robbery. (Defendant was also convicted of that crime, and the convictian was affirmed by this court. People v. McNeil, 99 Ill App2d 273, 240 NE2d 721 (1968).) In addition, the search revealed a fur coat which was introduced into evidence in the instant case as having been taken in the Berkowitz robbery.

In making the argument that the affidavit for the search warrant was defective because it did not supply sufficient probable cause to justify issuance of the warrant, defendant relies on Spinelli v. United States, 393 US 410 (1969), and Aguilar v. Texas, 378 US 108 (1964). In Aguilar, the Supreme Court found the affidavit of police officers to be inadequate where the officers had sworn that they received reliable information from a credible person and believed that narcotics were being illegally stored on the described premises. The court held that the affidavit was inadequate because it failed to set forth the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant’s conclusion that the narcotics were present, and because the affiants did not attempt to support their claim that the informant was credible or his information reliable. In Spinelli, the court also found that the affidavit for the search warrant was defective. The affidavit in question recited that the FBI had kept track of Spinelli’s movements for several days and that he was seen entering a certain apartment, that the apartment had two telephone numbers, that Spinelli was known to the affiant and various law enforcement agencies as a gambler and bookmaker, and finally that the FBI had been informed by a confidential reliable informant that Spinelli was operating a handbook by means of the aforesaid telephones. Although it held that the affidavit was inadequate, the court stated as follows at p 416:

“Though the affiant swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar’s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information—it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him.”

No such fault can be found with the affidavit in the instant case. There were not the general allegations in this affidavit which were found in the Aguilar and Spinelli affidavits. The instant affidavit explicitly stated that the informant obtained the information by personally visiting the premises and observing the relevant evidence. It also stated that the proceeds of a specifically named robbery which had occurred on that same day, valued at about $50,000, were to be found in the indicated apartment and that the informant had personally observed this stolen property in the apartment.

Almost identical to the instant case is Rich v. United States, 407 F2d 934 (5th Cir 1969). In that case, the agents stated in their affidavit that the informant had on repeated occasions in the past furnished reliable and credible information. The affidavit also stated that the informant had purchased obscene material from defendant in the past, that defendant had told the informant that he received the material by bus, that the material was late and defendant was flying to New Jersey to check on it. The affidavit also stated that affiants had seen defendant board a plane and return. The court found that the search warrant was adequate and that the search warrant was based upon probable cause.

We find People v. Parker, 42 Ill2d 42, 245 NE2d 487 (1969), cited by defendant, to be distinguishable from the case at bar. In that case, the court found the affidavit inadequate and quashed the search warrant. The affidavit stated that the affiant had been told by an informant who had previously given information which proved to be true that the accused had a quantity of marijuana stored in his desk at his place of employment and at his home which the informer had personally observed. It also stated that the informer had purchased samples of this substance previously, and that it had proved to be marijuana. The court held that the affidavit was inadequate because it failed to inform the issuing magistrate as to some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable. Although the affidavit in the instant case recited merely that the officer had received information from an informant who had given him reliable information in the past, it went on to give far more specific and detailed information to the issuing judge than that in Parker. While the Parker affidavit stated that the informant had personally observed marijuana at accused’s home and in a desk at work, the instant affidavit recited that the informant had personally observed furs in the approximate value of $50,-000 which had been taken in a robbery of Somers Fur Company, and that the Somers robbery had occurred on the same day that the search warrant was sought. We hold that the affidavit in the case at bar was adequate to provide probable cause for the issuance of the search warrant, and that the trial court did not err in denying the motion to quash the search warrant.

Defendant next contends that a fur coat introduced at trial was improperly identified and therefore erroneously introduced into evidence.

Stolen property, if relevant and properly identified, is admissible at trial. See People v. Pittman, 28 Ill2d 100, 190 NE2d 802 (1963). In the instant case, the fur coat in question was positively identified at trial by both, employees of the fur company as one on which they had worked prior to the robbery. While one of the employees was uncertain as to when she had last worked on the coat, that uncertainty would affect only her credibility, and not the admissibility of the coat into evidence.

Defendant next argues that the trial court erred in allowing one of the State’s witnesses to identify a codefendant not on trial in the presence of the jury. On cross-examination, defendant examined the State’s witness Newman about his viewing the two robbers at a police lineup and about his identification of Philip Thomas as the other robber. After the State completed redirect examination of Newman, without objection by defendant, it recalled Newman. Then over objection of defendant, Thomas was brought into the courtroom, and Newman identified him as the other robber.

Evidence which is not admissible of itself may become admissible if relevant to an issue which the opposing party has introduced. See Wiley v. Department of Public Works and Buildings, 330 Ill 312, 161 NE 783 (1928). Although Thomas was not on trial, and his guilt had no bearing on that of defendant, it was defendant who brought up the issue of Newman’s identification of Thomas, apparently attempting to affect his credibility as to his identification of defendant. Consequently it was proper for the State in response to show who besides defendant the witness identified at the lineup. The jury was already aware of the existence and participatian of Thomas, and once defendant placed in issue the witness’s ability to identify him, the witness’s courtroom identificaion of Thomas became relevant, and properly within the scope of redirect examination.

Defendant finally maintains that the trial court abused its discretion in failing to conduct a hearing in aggravatian and mitigation prior to sentencing him.

The Criminal Code, Ill Rev Stats, c 38, § 1-7 (g), provides as follows:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

However, in the instant case, defendant did not request such a hearing, nor did he make any objection when the trial court imposed sentence after denying post-trial motions. Consequently we believe that the rule set forth in People v. Smith, 62 Ill App2d 73, 210 NE2d 574 (1965), is controlling. In that case, this court held that the burden of seeing that there is a hearing in mitigation belongs to the defendant, the party who has evidence to present. A defendant who fails to request this right to a hearing in mitigation waives it.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Jane L. Herhold, Plaintiff-Appellee, v. Frank F. Herhold, Defendant-Appellant.
    Gen. No. 52,814.
    First District, Third Division.
    April 16, 1970.

      Westbrook, Jacobson and Brandvik, of Chicago (Lowell H. Jacobson and James A. Brandvik, of counsel), for appellant.
    Siebel and Siebel, Rinella and Rinella, of Chicago (Arthur Siebel and Owen L. Doss, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The dispute in this case is over the terms of a property settlement incorporated into a divorce decree.

Jane Herhold filed a complaint for divorce alleging the desertion of the defendant, Frank Herhold. Herhold denied the desertion and demanded a jury trial. During the selection of the jury the parties reached an agreement and the jury was discharged. The plaintiff was the only witness at the hearing which followed. In proving up her case she testified as to the terms of the property settlement agreed to by herself and her husband. No evidence was adduced of the financial condition of either party but from the complaint, answer and other pleadings, it appears that both had substantial means and independent income. At the conclusion of the hearing the court stated that the plaintiff would be granted a divorce and instructed the parties to present an agreed decree.

When a decree drafted by the plaintiff was shown to the defendant he objected that it did not conform to the agreement. The defendant prepared his own decree and both were submitted to the court. At the court’s suggestion the parties and their attorneys testified as to their understanding of the settlement. The court accepted the plaintiff’s version of the agreement and entered the decree tendered by her. It is from this that the defendant appeals.

Only one item of the property settlement was in dispute and the decrees submitted to the court were identical except as to this item: the terms of the defendant’s will in regard to the children of the parties, who at the time of the hearing were 27, 23 and 22 years of age. The report of proceedings of the divorce hearing contains the following testimony by the plaintiff:

Plaintiff’s Attorney: “Now, your husband has agreed that he will guarantee to leave to the children a minimum of $75,000 in his estate, the minimum of $75,000 or 50 percent, whichever would be greater?”
Defendant’s Attorney: “Not exactly.”
Plaintiff’s Attorney: “All right. He guarantees to leave $75,000?”
The Court: “Suppose it should be less ?”
Defendant’s Attorney: “He will guarantee $75,000.”
The Court: “I was just kind of joking a little bit here.”
The Plaintiff: “He has it.”

During cross-examination the plaintiff testified:

Defendant’s Attorney: “AH right. One other question. On this, Mr. Herhold plans to make a will in which he wHl guarantee to leave at least $75,000 to the three children, the total of that for the three children?”
Plaintiff: “You said a minimum.”
Defendant’s Attorney: “Yes.”
Plaintiff: “Yes.”
Defendant’s Attorney: “Because we don’t know what market conditions and what will happen, but that’s a commitment that he wiH make. O.K. nothing further.”

The decree drafted by the plaintiff ordered the defendant to bequeath to his children:

a sum of money equal to one-half (50%) of his gross estate, but in no case to be a net sum of money less than $75,000.00, in which connection the term ‘gross estate’ shall mean the gross estate as computed for federal estate tax purposes, and also including one-half (50%) of the value of any property disposed of by way of gift or trust during his lifetime.”

This provision was contrary to the agreement approved by the plaintiff in her testimony. The transcript shows that she understood her husband’s will was to provide a minimum of $75,000 for their children. At no place in her examination did she indicate that more had been agreed upon. On the only occasion when a suggestion was made by her counsel that the defendant had agreed to leave the children one-half of his estate, the attorney for the defendant objected; her counsel backed away, saying, “All right” and thereafter spoke only of $75,000.

In a written memorandum explaining his decision to accept the decree presented by the plaintiff, the chancellor stated that the transcript confirmed the plaintiff’s contention about the terms of the agreement. But, as we have seen, it did not. Although the plaintiff’s counsel had asserted that the report of proceedings was inaccurate, the charge was not substantiated. Supreme Court Rule 329 states that, “The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule.” The rule further provides that the record may be corrected by the trial court. Ill Rev Stats 1967, c 110A, par 329. In this case the trial court certified to the accuracy of the report of proceedings. The certification of the trial court is conclusive in a court of review. Gebhardt v. Warren, 399 Ill 196, 77 NE2d 187 (1948).

The divorce was uncontested only because the plaintiff and the defendant entered into an oral contract concerning the disposition of their property. If the contract had not been made, the trial would have continued, and there is no certainty that the plaintiff would have prevailed. If she was dissatisfied with its terms she could have withdrawn from the contract and the divorce proceeding would have reverted to its contested status. But she did not withdraw; she obtained the divorce and is bound by her contract. She does not claim that the contract was the result of fraud, misrepresentation or coercion. It was negotiated by her attorneys and confirmed by her in open court. She could not unilaterally change its terms, nor could the court do so on its own accord and order something it was powerless to decree.

The provision in dispute did not relate to alimony in gross or to a settlement in lieu of alimony. Ill Rev Stats 1967, c 40, par 19. It was not a provision subject to the court’s control. The provision related to their children—all of whom had reached their majority. The youngest, 22, a college senior, was within a few months of graduation. The defendant had agreed, and the decrees of both parties provided, that he would pay for her continued education. He was under no obligation to do more and he was under no legal obligation to leave his estate or any part of it to the children. Cooper v. Cooper’s Estate, 350 Ill App 37, 111 NE2d 564 (1953). His obligation' to do so was created by the contract and only by the contract. The contract could not be altered without his consent and the court was without authority to modify it or to enter a decree contrary to it.

The decree presented by the plaintiff and entered by the court did not conform to the agreement upon which the uncontested divorce was predicated. The decree presented by the defendant carried out the agreement. It stated:

“(g) That the defendant shall leave in full force and effect at his death, and shall provide the plaintiff with a copy thereof, a legal, valid, and subsisting Last Will and Testament, devising and bequeathing to the then surviving children of the parties hereto, share and share alike, or in the event of the death of any one or all of the said children pri- or to the defendant’s death, to their respective descendants (except the plaintiff herein), per stirpes and not per capita, a total sum of no less than $75,000.”

The decree is vacated and the cause remanded with directions to substitute the above provision in the decree in place of the one submitted by the plaintiff. After this amendment is made the decree is to be reentered.

Reversed and remanded with directions.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Burnie W. Reynolds, Defendant-Appellant.
    Gen. No. 53,749. (Abstract of Decision.)
    First District, Third Division.
    April 16, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.