author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Appellee, v. Frank O’Connell, Appellant.
    Gen. No. 51,195.
    First District, First Division.
    May 26, 1967.
    Rehearing denied June 14,1967.

      James P. Hecht, of Woodstock, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Frank O’Connell, was convicted of murder after a jury trial and sentenced to a term of 40 to 60 years in the Illinois State Penitentiary. The defendant appealed directly to the Supreme Court and the appeal was transferred to this court.

The defendant contends that (1) his petition for discharge should have been granted as he was denied the right of a speedy trial; (2) the denial of counsel other other than the Public Defender was a violation of his constitutional rights; (3) the denial of motion for a further Bill of Particulars deprived him of a fair trial; (4) venue was not proven beyond a reasonable doubt; (5) the State failed to prove him guilty beyond a reasonable doubt; (6) the trial court erred in denying his motion for a directed verdict at the close of the State’s case; (7) the trial court improperly admitted certain testimony on behalf of the State; (8) the trial court improperly refused certain instructions tendered by defendant; and (9) defendant was deprived of a fair and impartial trial by reason of the prejudicial and inflammatory argument of the prosecutor.

We first consider the defendant’s contention that he was denied a speedy public trial. It is undisputed that the defendant was arrested on September 13, 1964, and that his trial commenced on Monday, January 11, 1965, which was 121 days after his arrest. Illinois Revised Statutes, 1963, c 38, § 103-5(a), provides:

(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.

Illinois Revised Statutes, 1963, c 131, § 1.11, provides:

The time within which any Act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday . . . , and then it shall also be excluded.

It is also undisputed that the 120th day fell on Sunday, January 10, 1965. The defendant concedes that the Supreme Court has held that under the old Criminal Code (Ill Rev Stats 1961, c 38, § 748) when the last day of the fourth-term period fell on a Sunday the commencement of the trial on the following Monday was proper. People v. Hurst, 28 Ill2d 552, 193 NE2d 19; People v. Hannon, 381 Ill 206, 44 NE2d 923. The defendant argues, however, that the time period under section 748 of the old Criminal Code was computed in terms of months and not days as under the new code and that this distinction is important. He insists that regardless of whether the last day falls on Sunday, the defendant must be given a trial within 120 days otherwise it is a denial of his constitutional guaranty of equal protection of the law. He states that, “There is no reasonable basis for the discrimination caused by the Sunday rule,” and submits that the application of section 1.11 in criminal cases in no way meets the standard of equal protection of the law and that it should only be applied in civil cases. Therefore he concludes Sunday, January 10, 1965, should have been included in the computation and that his petition for discharge on January 11th should have been granted.

In People v. Walker, 34 Ill2d 23, 213 NE2d 552, the defendant contended that the computation of his four-month period brought him to trial 122 days after he was taken into custody while other persons in custody would be entitled to a discharge on the 121st day as the computation of their four-month period could be 120 days.

It was there contended, as here, that the disparity in computation denied him equal protection of the law and the court held there was no merit to the argument. In the new Criminal Code the legislators changed the old rule of four months and substituted the 120-day period while retaining Section 1.11, which excluded Sunday if it fell on the last day, for making the computation of that period. This legislation was intended to avoid as much disparity in the application of the law as was possible and practical. It is uniform for all persons who are in custody and awaiting trial under the same circumstances as the defendant and we hold that its application to the defendant was no denial of equal protection of the law. It is also called to our attention that the trial commenced 122 days after the arrest because the jury was not impanelled and sworn to try the issues until January 12th.

The record is clear that the trial commenced on January 11th and we find no merit to this contention.

It is also contended that the refusal of the trial judge to appoint, on defendant’s request, an attorney other than the Public Defender, unless the defendant requested a continuance for that purpose, violated his constitutional right to a fair and impartial trial and his right to counsel.

The record reveals that the defendant was arrested on September 13, 1964, indicted for murder on December 13, 1964, and arraigned on December 15, 1964, before the Chief Justice. On the latter date the defendant told the court he did not want the Public Defender to represent him. The Public Defender informed the court that he believed the defendant’s counsel was Tom Kilroy and the defendant said that while he had no money to retain a lawyer he thought his sister would employ Mr. Kilroy. The court informed the defendant that if Mr. Kilroy wished to represent him he would vacate the appointment of the Public Defender and the cause was assigned to Judge Dahl for trial.

On December 21st, when the case was called, Mr. Kilroy advised the court that he would not represent the defendant. The defendant then said he would rather have a Bar Association lawyer (from the Bar Association Committee representing indigent defendants) and the court stated that he didn’t know if the Association would send another lawyer inasmuch as the defendant discharged Mr. Sullivan, a Bar Association lawyer. When the court asked him if he wanted a continuance for the purpose of seeing if the Association would send a lawyer to represent him he replied he was not worried about a continuance in the murder case and that he was ready to go to trial. Mr. Sullivan, who was present, advised the court that he would not represent the defendant, but would cooperate with anyone appointed by the court. Both Kilroy and Sullivan were permitted to withdraw and the Public Defender was appointed and the matter was set for trial on January 4,1965.

On December 30th, the State, in a petition, requested an extension of the trial date under Ill Rev Stats 1963, c 38, § 103-5 (c), alleging that a material witness who is a resident of California was involved in an automobile accident and unable to be present on January 4th. The Public Defender objected to any continuance and informed the court that the defendant told him that, “he feels that at the moment the choice he made was best, to stay with the Public Defender’s office, and not break his fourth term.” The Public Defender went on to say, “It then put a bind on me to adequately prepare for this murder trial in the space of a few weeks, and I have been working each day and night on this case in order to be prepared for trial January 4th.” Strenuous objections were made to any delay in the trial and when the matter was called for trial on January 4th, the State withdrew the aforementioned petition. After acknowledging a copy of the Bill of Particulars the Public Defender said, “And I’m answering ready, and I understand you will try this within the fourth term.”

The trial was continued to January 6th. On that date the defendant answered that he was ready for trial and moved for a further Bill of Particulars which motion was denied and the trial was continued to January 11th. On that date the defendant presented a motion and petition seeking to be discharged on the ground that he was not brought to trial within 120 days from the date of his arrest. This motion was denied, the trial commenced and four jurors were selected on that date.

The defendant contends that contrary to the provisions of Illinois Revised Statutes, 1963, c 34, section 5604 and the Sixth Amendment of the United States Constitution the court refused to appoint counsel for him other than the Public Defender. The record is to the contrary. It shows a diligent and conscientious effort by the trial judge to accommodate the defendant. At one time it appeared that Mr. Kilroy, a counsel of his own choice, or Mr. Sullivan, a member of the Chicago Bar Association committee to represent indigent defendants would represent the defendant, but they declined to do so. Where a continuance of the case for the purpose of again appointing new counsel for the defendant makes it apparent to the court that the trial would commence after the 120-day period, which would result in defendant’s discharge without a trial, the court had no alternative but to inform the defendant that he would appoint other counsel if the defendant requested a continuance for that purpose.

The defendant, for reasons of his own, refused to request a continuance and stated he was ready for trial. At no time, either during the pretrial period or during the trial, or at this late date, has the defendant claimed that the Public Defender was incompetent or negligent in his defense. Indeed the record shows that the defendant cooperated with his counsel and was ably represented by competent counsel who had fully prepared himself for trial. People v. Birdette, 22 Ill2d 577, 177 NE2d 170, cited by defendant, turned on negligent representation by the Public Defender who had not discussed the case with the defendant, which as we have pointed out, and defense counsel concedes, is not the situation in the instant case.

The defendant further contends that the denial of a further Bill of Particulars deprived him of a fair trial guaranteed by section 9, article 2 of the Illinois Constitution. We agree with the defendant that the purpose of a Bill of Particulars is to provide for “more particular averments in order to enable the defendant to understand the nature of the charges against him or to prepare his defense.” People v. Sims, 393 Ill 238, 241, 66 NE2d 86. The record shows that the State filed a Bill of Particulars as follows: “The date of the occurrence was between August 24, 1964, and September 7, 1964.” and “The place of the occurrence was in the vicinity of the intersection of Naperville Road and Spaulding Road in Hanover Township, Cook County, Illinois.” At the pretrial hearing held on January 6, 1965, the Public Defender orally requested more particular information. He pointed out that the indictment alleged a crime on September 7, 1964, and the Bill of Particulars stated the date of the occurrence was between August 24, 1964, and September 7, 1964, and he wanted a more specific date from the State. The prosecutor replied that he had previously informed the court that to the best of his knowledge the death could have occurred during the span of time listed in the Bill of Particulars and he was unable to fix any further particularity. The motion for a further Bill of Particulars was denied. The granting or denying of a Bill of Particulars rests in the sound discretion of the court and after reviewing the evidence which we shall discuss later, we cannot say that the court abused its discretion. People v. Gray, 251 Ill 431, 96 NE 268.

The defendant next contends that the State failed to prove him guilty beyond a reasonable doubt and the trial court erred in denying his motion for a directed verdict at the close of the State’s case in chief. It is the defendant’s position that the date of the crime was not proven beyond a reasonable doubt; that there is a conflict in the testimony of Henry Mayberry and Mrs. Lo Turco, the two chief witnesses for the State, regarding defendant’s participation in the crime; that their testimony was impeached; and that there is no proof that defendant possessed a gun at the time of the occurrence.

It is established by the testimony of two officers and Robert Vanecko, who performed the autopsy, that the cause of Charles White’s death was two gunshot wounds on the back of his head. The two police officers testified that the decomposed body of White was found on September 7, 1964, on the East side of Naperville Road near Spaulding Avenue in Cook County.

Mrs. Lo Turco testified that she met the defendant in July of 1964, while she was separated from her husband, and they lived together in an apartment. Subsequently, on August 1, 1964, they moved to 3753 Windsor where Mrs. Swiech, the defendant’s sister, lived in an apartment just below them. In the latter part of August she said she saw Charles White, who had a needle and part of a tube inserted in his right arm, in Mrs. Swiech’s apartment and the defendant told his sister to take care of White who had just escaped from the Cook County-Hospital. White then lived in defendant’s apartment for three days until the defendant found a room for him at 1717-1719 Humboldt Boulevard. She testified that several days later she accompanied the defendant and White to a tavern called “The Spot” and when the defendant went next door to get a bottle of vodka for Henry Mayberry, the bartender, White told her he could go for her and she should leave the defendant and go with him. She also testified that the next morning she told the defendant that White made a pass at her and he said he would take care of it and she would hear about it.

Mrs. Lo Turco further testified that several days later, which was the beginning of September, she saw White and the defendant conversing in the latter’s sister’s apartment in the afternoon. She said the next morning about 4:30 a. m. the defendant came in their apartment and said, “Baby, I did it ... I took care of it ... . You’ll read it in the papers.” She related that the defendant kept watching television and reading newspapers. She said he told her several days later that, “[H]e wanted me to see on television what he has done for me to believe. He said, ‘You didn’t believe me, baby. I want to show it to you.’ ” She testified further he said, “We planned a place where we’re going to drop him. We’re going to drive the car, and we’re going to urinate, . . . we stopped to urinate. As he went and had it out, I shot him in the back of the neck. And that’s the way he died, with the thing in his hand.”

Henry Mayberry testified that he presently was serving a term in the County Jail for an armed robbery conviction. He said he met the defendant in August of 1964, when he was a bartender at a tavern called “The Spot.” He testified that the defendant and Charles White came to the tavern on several occasions and in the latter part of August the two of them were there with Mrs. Lo Turco. On that occasion he had asked the defendant to get him a bottle of vodka and that he returned with it in five minutes. He testified further that in the latter part of August or the early part of September, 1964, the defendant and White were drinking in the tavern for about five hours and that after the tavern was closed the three of them went for a ride in his car. He said that before they left he drank about one pint of vodka himself. He said he didn’t know exactly where they went but it was some place west. He said after driving thirty or forty minutes they stopped to relieve themselves, White and the defendant got out and then he heard two gunshots. He said he was starting to get out when the defendant got back in the car and said “Let’s go . . . let’s get out of here.” He testified that when he asked about White, the defendant replied, “That’s what happens to people who talk too much,” and then the two of them drove back to Chicago.

On cross-examination he said he had been on a drinking spree for several weeks before the occurrence and on the day in question he had quite a lot to drink. He testified that he heard no argument between White and the defendant at The Spot and they were on friendly terms. When he heard the first shot he said he thought a car had backfired, but when he heard the second shot he knew it wasn’t the car. He said he didn’t know where they stopped, that they had been on the tollway, but hadn’t gone too far. He said after the shooting he drove to a parking place, fell asleep and when he awoke the defendant had left. He saw him at the bar the next day, but they didn’t converse.

The defendant urges that the date of the crime was not proven beyond a reasonable doubt. While admitting it is not necessary to prove a crime occurred on the precise date alleged in the indictment, People v. Taylor, 391 Ill 11, 62 NE2d 683, he submits that some particular date must be proven. He points out that there is a conflict between the State’s two chief witnesses as to the date of the occurrence. It appears that Mrs. Lo Turco testified that she saw the deceased alive on a Monday-evening in the very early part of September. According to the calendar the first Monday in September was September 7th. It is clear from the record and the jury could find from all the evidence that the Monday referred to by Mrs. Lo Turco was Monday, August 31st and the early morning hours of September 1st, which was consistent with Mayberry’s testimony. It is also urged that the testimony of the two chief witnesses created a serious doubt as to the truth of their stories, in that Mayberry’s testimony is utterly improbable and impeached by inconsistent statements and his long criminal record and his intoxication at the time of the crime; and that Mrs. Lo Turco’s testimony was impeached by its improbability, inconsistency, exaggeration, her bias and unstable personality. We note that the jury had before it the complete history of Mayberry’s criminal record.

In essence the defendant is attacking the weight and credibility of the witnesses. As stated in People v. Drumwright, 48 Ill App2d 392, 396, 199 NE2d 282:

. . . this court will not substitute its judgment on the matter of the credibility of witnesses and the weight to be given their testimony where the jury saw and heard them testify, unless we can say the proof was so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. People v. Palmer, 26 Ill2d 464, 469, 187 NE2d 236.

After a careful examination of the record we are satisfied that there was sufficient evidence upon which the jury based their verdict and upon which the trial judge, who saw and heard the witnesses and heard post-trial motions, could enter judgment. We also hold that the trial judge properly denied the motion of defendant for a directed verdict at the close of the State’s case.

It is also argued that there was no proof that the defendant possessed a gun at the time of the alleged occurrence which is fatal to the State’s case. Mayberry, the only occurrence witness, testified that he never saw a gun. However, uncontradicted evidence establishes that two shots were heard shortly after the defendant and White left the car. White did not return to the car and his decomposed body was later found with two bullets in his head. The defendant told Mrs. Lo Turco, “Baby, I’ll take care of him” and that he shot White in the back of his neck while he was urinating, and, he also told May-berry, “That’s what happens to people who talk too much.” As we heretofore said there was sufficient evidence to convict the defendant.

The defendant also contends that the evidence did not prove beyond a reasonable doubt that the venue of the trial was correct. It is true that while the sole occurrence witness, Mayberry, was completely uncertain as to the site of the killing he was sure that it occurred somewhere west of Chicago. In People v. Mowry, 6 Ill2d 132, 139, 126 NE2d 683, the court stated that:

It is not necessary, however, that testimony be given in so many words that the crime was committed in a given county in order to establish venue. (People v. Long, 407 Ill 210; People v. Hornaday, 400 Ill 361,) but if, from the facts appearing in evidence, the only rational conclusion which can be drawn is that the offense was committed in the county alleged, it is sufficient. (People v. Allegretti, 291 Ill 364.) To this end, venue may be proven by circumstantial evidence.

In the case at bar there is no question that White was killed by two bullets striking him in the head. Also May-berry testified that after the two shots were fired White did not return to the car, and from the statements of the defendant about the killing to both Mayberry and Mrs. Lo Turco, it can be inferred that White was instantly killed where his decomposed body was found on the Cook County site.

The defendant further complains that the court erred in permitting Mrs. Lo Turco to testify, over objection, that while she lived with the defendant she observed seven guns and one rifle in the apartment. It is argued that the admission of weapons in evidence was not sufficiently connected with the crime nor proved to be in defendant’s possession or control and therefore is reversible error. In People v. Smith, 413 Ill 218, 222, 108 NE2d 596, cited by defendant, weapons found in a car driven by defendant six months after the murder were admitted into evidence. The car belonged to his father-in-law and the weapons were found in the trunk. The court stated, “This was the car used in the holdup . . . , but there was no showing as to access to the car by the defendant, or as to its use by him on any other occasions,” and therefore the shotguns so found should not have been permitted in evidence. In the instant case the jury could find from the evidence that these weapons were kept by defendant in his apartment, under his control, and belonged to him. In Morton v. United States, 183 F2d 844, 845, the Court of Appeals in affirming a murder conviction said:

Certainly a gun is peculiarly adaptable to the crime of shooting a person. And this appellant’s prior possession of the physical means of committing this murder is admissible as some evidence of the possibility or probability of [the defendant] having done it.

We are of the opinion that the court did not err in admitting this evidence, nor do we find any error in admitting evidence of defendant’s behavior regarding newspaper and television viewing after he told Mrs. Lo Turco he killed the deceased, or in the evidence showing the defendant’s intent to personally find a room for the deceased to hide out in.

It is next urged that the court erred in refusing to give four instructions tendered by defendant. We have examined the involved instructions and do not consider it is necessary to discuss them in detail. Suffice it to say that they were either erroneous in law or inaccurate statement of facts or were repetitious of other instructions given to the jury. The court gave two instructions dealing with the State’s burden of proof and the instructions, as a series, adequately contain the law of the case. It is sufficient if the series of instructions, construed as a whole, fully and fairly announce the law applicable to the theories of the defendant. People v. Sims, 393 Ill 238, 66 NE2d 86.

Finally it is contended that the prosecutor committed prejudicial error by reason of prejudicial and inflammatory argument. We have considered the entire final argument and feel that the inaccuracies stated by the prosecutor were trivial, but still based on inferences from the evidence. Furthermore, the State was demanding the death penalty for the defendant, and the argument complained of was an attempt to persuade the jury to vote a death penalty. The jury having chosen not to do so, we cannot see how the defendant was prejudiced thereby.

The judgment of the Criminal Court of Cook County is therefore affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN MURPHY, P. J.,

license: Public Domain

text:
    Continental Casualty Company, Plaintiff-Appelle, v. Travelers Insurance Company, Defendant-Appellant.
    Gen. No. 51,542.
    First District, First Division.
    May 26, 1967.
    MURPHY, P. J., dissenting.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (William D. Maddux and John M. O’Connor, Jr., of counsel), for appellant.
    Tom L. Yates, of Chicago (L. J. Locke, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This controversy arises from a dispute between two insurance companies concerning the interpretation of their respective insurance policies. Plaintiff, Continental Casualty Company, after paying a $6,350 claim settlement brought this action against Travelers Insurance Company for reimbursement of $5,772.72,10/llths of the settlement. The facts were stipulated and the trial judge held in a memoranda decision that the two excess provisions in the policies of the respective companies nullified each other and held both companies to be primarily liable. Judgment was entered in favor of Continental and against Travelers for $5,521.70, which was 20/23rds of the settlement and Travelers appeals.

It appears from the stipulation of facts that on July 5, 1961, Robert P. Graeser rented a 1961 Ford from Avis, Inc., and/or Avis Rent-A-Car System, Inc. in Chicago. On July 11, 1961, he was involved in an accident which plaintiff Continental settled for $6,350. At the time of the accident Graeser was an agent and employee of Aeroquip Corporation and was operating the vehicle with their permission.

Continental issued its policy, DCL 3460982-R, to Avis, Inc., a corporation, engaged in the business of leasing or renting motor vehicles, and to Robert P. Graeser, with liability limits of $100,000 each person and $300,000 each accident for bodily injury and $25,000 each accident for property damage. The Continental policy contained the following clauses:

#17 The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise.
#9 When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law. . . .

Travelers issued its policy, SLA 2691399, to Aeroquip Corporation, and covered Graeser, its employee, under the omnibus clause, with limits of liability of $1,000,000 each person and $2,000,000 each accident for bodily injury and $100,000 each accident for property damage. It was also stipulated that the rented car was a hired automobile insured on a cost of hire basis within the meaning of condition 13 of the Travelers policy, which is as follows:

#13 If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the maintenance or use of any hired automobile insured on a cost of hire basis or the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance.

The Travelers policy also contained the following provision under the heading “Insuring Agreement”:

III. The unqualified word “insured” includes the name insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured. The insurance with respect to any person or organization other than the named insured does not apply;
(d) with respect to any hired automobile, to the owner, or a lessee thereof other than the named insured, or to any agent or employee of such owner or lessee;

Travelers contends that Continental’s policy issued to Avis on its rental cars was “primary” insurance and that Travelers’ policy issued to Aeroquip was “excess” insurance as to the car rented from Avis. Therefore Travelers, not Continental, was entitled to judgment. In the alternative Travelers contends that the apportionment formula of 20/23rds to 3/23rds used by the trial court was incorrect and the judgment should be reduced to a 50/50 ratio or $3,175.

Continental contends that both policies were excess insurance and such applicable clauses cancel each other; that the excess clause is permitted by the Illinois Statute; that in any event as between the parties the policy provisions apply; and that the loss was properly prorated in accordance with the respective policy limits.

The Travelers’ policy provides that coverage for a hired automobile or the use of any nonowned automobile shall be excess insurance over any other valid and collectible insurance. It is stipulated that the car Aeroquip rented from Avis and which Graeser drove is a hired automobile within the meaning of clause #13 of the Travelers’ policy. Continental issued its policy to Avis (which also covered Graeser the driver) which provides under clause #17 that, “[t]he insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise.”

Travelers argues that Continental seeks to take undue advantage of this common provision in automobile policies by attempting to limit the Avis Rent-A-Car policy to excess insurance only, in all cases in which the renter has some insurance of his own on his own car, “ [a]nd this despite the fact that it is a matter of common knowledge that the rental charge paid to Avis by the renter includes the cost of primary insurance, not only on the Avis car, but also on the renter-driver.”

Travelers insists that the Continental policy clearly was issued to Avis to provide “primary” insurance on Avis Rent-A-Cars and their drivers and therefore Travelers, not Continental was entitled to judgment. They say, “[t]he simple fact here is that Travelers wrote excess insurance on rented cars and that Continental wrote primary insurance on Avis Rent-A-Cars as it was required to do by statute.” Travelers refers us to the Illinois Motor Vehicle Law (Ill Rev Stats 1961, c 95%) which provides:

Section 8-114:

It is unlawful for the owner of any motor vehicle to engage in the business, or to hold himself out to the public generally as being engaged in the business of renting out such motor vehicle, to be operated by the customer, unless the owner has given, and there is in full force and effect and on file with the Secretary of State proof of financial responsibility as hereinafter provided.

Section 8-115:

Proof of financial responsibility when required under this Act may be given by the following alternate methods. By filing with the Secretary of State: 4
2. An insurance policy as provided in Section 8-118.
• •••••

Section 8-118:

A motor vehicle liability policy in a solvent and responsible company, authorized to do business in the State of Illinois, providing that the insurance carrier will pay any judgment within thirty days after it becomes final, recovered against the customer or against any person operating the motor vehicle with the customer’s express or implied consent, for damage to property other than to the rented motor vehicles, or for an injury to, or for the death of any person, not an occupant of the rented motor vehicle, resulting from the operation of the motor vehicle, provided, however, every such policy provides insurance insuring the operator of the rented motor vehicle against liability imposed by law upon such insured for bodily injury to, or death of any person or damage to property to the amounts and limits as provided under Section 7-317 of this Act.

Section 7-317 provides for limits of $10,000 for each person and $20,000 for each accident for bodily injury, and $5,000 each accident for property damage. Travelers, while pointing out that subsection (i) of section 7-317 states that, “ [t] he policy may provide for prorating of insurance thereunder with other applicable valid and collectible insurance,” argues that the section “nowhere provides that the primary insurance thus required as a matter of public policy can be made excess insurance only.”

After a careful examination of the involved policies we find that both policies provide excess insurance coverage. We agree with Continental that the purpose of the insurance requirement under the Illinois Motor Vehicle Act is the protection of the public and not some other insurance company. In this regard we note that there was no attempt by Continental to evade any coverage and the claim involved was promptly settled (which fulfilled the main purpose of the statutory insurance requirements) before the instant controversy arose. Further, the renter-driver is not affected by this action and what he may have paid to Continental or what his rights may be are immaterial in this litigation between the insurance companies. As long as the public is protected the policy may contain any provisions not contrary to statute or public. We hold that as between the insurance companies the policy provisions limiting their liabilities are effective.

Travelers relies heavily on New Amsterdam Cas. Co. v. Underwriters, 34 Ill2d 424, 216 NE2d 665, which it says puts to rest any doubts that the coverage carried by a rent-a-car business is primary insurance. We think it is inapplicable on the facts. In New Amsterdam it was held that “escape” clauses were not “excess” clauses and therefore the Appellate Court decisions which prorated in the instance of excess v. excess clauses did not apply. In other words an “escape” clause was not a “like” cause with the “excess” clause of the other policy involved. In the instant case we have an excess v. excess clause situation which is distinguishable from the New Amsterdam situation of escape v. excess clauses. Numerous cases have been cited on this subject by both parties, but we deem it needless to belabor this opinion with a detailed discussion for in our judgment it will serve no useful purpose.

The trial judge held that the amount paid in settlement should be apportioned on the ratio of the coverage of each policy for one accident. Continental covered $300,000 and Travelers covered $2,000,000 which totals $2,300,000. On that basis the court found that Continental’s share was 3/23rds and Travelers to be 20/23rds. We do not agree. We hold that the amount paid in settlement should be apportioned on a 50/50 basis and therefore the judgment against Travelers is to be reduced to $3,175.

The excess clauses in the case at bar are not alike as is the situation in most excess v. excess opinions where the prorated share was declared to be in accordance with the ratio of coverage. Neither policy expressly provides for prorating where a hired automobile is concerned. Travelers’ policy provides for prorating under some circumstances and Continental has no provision. Here while there may be much to the argument that Continental was primarily liable because it directly insured the driver of the rented car we, as heretofore stated, felt that as between the insurance companies they are liable according to the terms of their contracts. We may not rewrite the involved policies and we need not cite any authorities to that effect. We conclude that under the facts and circumstances equity requires that both companies be on equal footing requiring an equal apportionment of the settlement which is within the limits of the respective policies. See Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 NJ 554, 147 A2d 529.

For the reasons given, the judgment entered in favor of Continental is reversed and remanded with directions to reduce the judgment to $3,175 in accordance with the views expressed herein.

Reversed and remanded with directions.

ADESKO, J., concurs.

MURPHY, P. J.,

dissenting:

I agree that the judgment in favor of Continental should be reversed. However, I believe that judgment should be entered here in favor of Travelers, on the theory that the Avis Rent-A-Car System, Inc., policy with Continental was primary insurance. As the liability limit of the Continental policy was in excess of the amount of damages, Travelers’ “excess” coverage never came into effect.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Gant, Defendant-Appellant.
    Gen. No. 50,795.
    First District, Third Division.
    June 1, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Klein and Dan Miroballi, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a non jury trial the defendant was convicted of unlawful use of a weapon and sentenced to the penitentiary for a term of two to four years. He contends that the weapon introduced in evidence was the product of an illegal search and seizure and that the failure of his attorney to move to suppress the evidence was a denial of his right to competent representation of counsel. He further contends that the State failed to prove his guilt beyond a reasonable doubt. The facts follow.

Defendant was arrested while riding with another man in the back seat of a taxicab operated by one Leon Looper. The arresting officer Charles Wright testified that he and his partner Aubly Policky, were driving east on 51st Street in Chicago when Looper’s cab pulled in front of their squad car; that they noticed that at each intersection the defendant or the man with him would turn around and look at the police car; that they believed that this suspicious activity warranted investigation ; and that they curbed Looper’s vehicle after switching on their dome light. Wright further testified that Looper got out of the cab; that he (Wright) approached the cab on the driver’s side and that Policky advanced on the other side; that he heard a thud from inside the cab; that he opened the rear door on the driver’s side and found a .32 caliber pistol on the floor between defendant’s legs.

On cross-examination Wright testified that he observed defendant and the other man in the taxicab drinking from a bottle, but that he could not tell whether it contained an alcoholic beverage. He stated that defendant was not arrested on suspicion of drinking in a public vehicle. Upon further questioning by defense counsel, Wright testified that he recalled making the following statement at a hearing conducted prior to the trial:

“THE COURT: Who had the pistol ?
“OFFICER WRIGHT: Willie Gant dropped it as I came up to the side of the car. He had his hand over the front seat and the gun was in his hand and as I walked up with my gun, he dropped it.” (Emphasis ours.)

Wright stated that if he were asked the same question again, his answer would be the same; that is, that he saw the gun in Gant’s hand. On further cross-examination however he contradicted his earlier statements and testified that he did not recall if the gun was in defendant’s hand or whether he had only heard it drop to the floor.

The law is well settled in Illinois that the failure to move to suppress an item which is later introduced in evidence waives the right to object on appeal to the admission of said evidence. People v. Riley, 31 Ill2d 490, 202 NE2d 531; People v. Sotos, 26 Ill2d 460, 187 NE2d 245; People v. Ikerd, 26 Ill2d 573, 188 NE2d 12. Defendant concedes that the question of admissibility cannot be raised directly on this appeal, but he contends that under the circumstances of this case the failure to make a motion to suppress was a vital error and revealed such incompetency as was equivalent to deprivation of his right to counsel. Hence, he argues, he should not be considered to have waived the issue of admissibility.

The Illinois Supreme Court in People v. Reeves, 412 Ill 555, 107 NE2d 861, quoted the opinion of Justice Minton in United States v. Ragen, 166 F2d 976 (7th Cir 1948), as follows:

“Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. . . . The best of counsel makes mistakes. His mistakes, although indicative of lack of skill or even incompetency, will not vitiate the trial unless on the whole the representation is of such low caliber as to amount to no representation and to reduce the trial to a farce.” (Pp 562-563.)

Generally, the Illinois Supreme Court has adhered to the principles set forth in the Reeves opinion, People v. Stephens, 6 Ill2d 257, 128 NE2d 731; People v. Clark, 7 Ill2d 163, 130 NE2d 195; People v. Dean, 31 Ill2d 214, 201 NE2d 405; People v. Green, 36 Ill2d 349, 223 NE2d 101. It might be argued however that certain language used by the court in a recent decision involving court appointed counsel (People v. Robinson, 33 Ill2d 391, 211 NE2d 697), indicates a less stringent rule where counsel is not of the defendant’s own choosing. In that case the court held that to sustain a contention of incompetency of counsel, “the defendant must clearly establish actual incompetency and substantial prejudice resulting therefrom.” In the instant case defendant’s attorney at the trial was the Public Defender of Cook County, a court appointed counsel, but it is unnecessary to determine whether a different standard has been formulated with respect to such counsel for under either test the attorney in this case was not incompetent.

Prior to defendant’s trial this court had decided in People v. DeFilippis, 54 Ill App2d 137, 203 NE2d 627, that an individual was required to allege a possessory interest in items which he sought to suppress from evidence, and this was the law in Illinois at the time of defendant’s trial. The DeFilippis decision was subsequently reversed by the Supreme Court of Illinois, People v. DeFilippis, 34 Ill2d 129, 214 NE2d 897, (Justice Underwood dissenting) on the basis of United States v. Jones, 362 US 257 (1960). Our decision in DeFilippis however was supported at that time by the decision in United States v. Konigsberg, 336 F2d 844 (3d Cir 1964), cert den 379 US 933 (1964), which distinguished United States v. Jones, supra, on facts practically identical to those in DeFilippis. See also United States v. Romano, 203 F Supp 27 (DCD Conn 1962) and Ramirez v. United States, 294 F2d 277 (9th Cir 1961). These cases follow a principle of law set forth by Justice Learned Hand in Connolly v. Medalie, 58 F2d 629 (2d Cir 1932), which was followed in every federal circuit but the First.

Despite this amount of precedent, the Public Defender has argued that the defendant’s trial counsel exhibited incompetence by relying upon the rule of law as decided by the Appellate Court. In other words he contends that trial counsel, to avoid being labelled incompetent, must anticipate the decisions of a higher tribunal even though a contrary principle has been stated by the courts in numerous jurisdictions. Such a standard, if adopted, might prove too rigorous for even the Public Defender in this case. We hold that defendant’s attorney at trial acted competently in declining to make the motion to suppress and therefore the question of the propriety of the arrest is not before the court at this time.

Defendant’s second contention is that there is no proof that he concealed a weapon “on or about his person.” Officer Wright testified at the trial that he recalled making a statement in a prior proceeding that he saw defendant holding a gun in his hand at the time of the arrest. He further testified that if asked the same question with respect to defendant’s possession of the gun, his answer would be the same. This testimony supports defendant’s position that there was a total failure of proof that he had concealed a weapon on or about his person, the crime for which he was indicted. People v. Beason, 342 Ill App 621, 97 NE2d 603; People v. Foster, 32 Ill App2d 462, 178 NE2d 402. The State argues that defendant’s dropping of the pistol to the floor of the cab constituted an attempt to conceal a weapon within the meaning of the statute, citing People v. Euctice, 371 Ill 159, 20 NE2d 83. In that case the court stated that there was sufficient evidence that defendants had been concealing their guns on or about their persons and had dropped them to the floor and kicked them under the rear seat of the car. That portion of the cross-examination of Officer Wright in the instant case, revealing that he was no longer sure that he saw the gun in the defendant’s hand, but that he merely heard a thud as he approached the vehicle, does not constitute evidence that it was defendant who dropped the gun to the floor or that he attempted to conceal the weapon. The evidence is not adequate to prove guilt beyond a reasonable doubt, and the judgment of conviction must be reversed.

Judgment reversed.

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

       Ill Rev Stats, c 38, § 24-1 (1965) Unlawful Use of Weapons.)
      “(a) A person commits the offense of unlawful use of weapons when he knowingly:
      “(4) Carries concealed ... on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm; . . . .”


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Floyd Wilson and Cline Porter (Impleaded), Defendants-Appellants.
    Gen. Nos. 50,817 and 50,814.
    First District, Third Division.
    June 1, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert A. Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a non jury case the defendants were convicted of burglary and sentenced to the penitentiary for terms of one to three years. They contend (1) that the charges in the indictments vary materially from the evidence adduced at the trial; and (2) that the trial judge applied an incorrect rule of law in weighing the evidence. The facts follow.

A short time after midnight on September 28, 1964, a burglar alarm was activated at Larry’s Super Market, Inc., 3748 West 16th Street, in the city of Chicago. The police arrived and found that a large plate glass window had been broken from the inside and that there was a small hole in a rear window. The store manager, one Homer Harvey, who lived in the neighborhood and saw the police approaching the store, arrived at the scene and informed the police that large quantities of liquor and cigarettes were missing. Harvey gave the police the names of Lorenzo Pearson and Marvin Jackson, former employees, whom the police questioned. They told the police that the defendants Wilson and Porter lived in an apartment at 1547 South Hamlin Avenue, Chicago, and that they were responsible for the burglary. The police went to that address and through an open door of the apartment observed a crate of liquor and cigarettes. They entered and placed defendants under arrest. Defendants moved to suppress the evidence of the stolen merchandise. After a hearing, the motion was denied and no error is charged with respect thereto.

Harvey testified at the trial that he stopped at the store at about 10:30 a. m. on Sunday, September 27, 1964; that he saw defendant Porter in the store; that he did not see him leave and that the store closed at 1:00 p. m. on Sunday. He testified that the loss occasioned by the burglary consisted of 4 to 6 cases of cigarettes, over 100 fifths of liquor and 200 pints of whiskey. On cross-examination he testified that on the night of the alleged burglary he had heard that defendant “Porter was sort of intoxicated at the time, and talking that he had some of Larry’s liquor.” Harvey further testified on redirect examination that one of the defendants had remained within the store after closing time and had passed the merchandise to an accomplice through the small hole in the rear window. He stated that the breaking of a small hole in the rear window would not be sufficient to set off the burglar alarm and that the alarm was probably activated when the burglar broke out of the store through the large plate glass window. On recall to the stand after a crate of the stolen liquor was introduced in evidence Harvey testified that he recognized the stolen merchandise as each bottle bore his handwriting stating the selling price.

Lorenzo Pearson testified on behalf of the prosecution that he knew the defendant Porter and had seen him enter Larry’s Super Market at about 11:30 a. m. on Sunday, September 27, 1964; that Porter had gone into the storeroom in the rear of the store and did not come out during the time Pearson remained there; and that later that night, at about 9:00 p. m. he was walking in an alley behind the store with Jackson when he saw defendant Wilson “receiving some cigarettes out of the window, stacking them in a box.”

Marvin Jackson also testified for the State that he saw defendant Porter, whom he knew by name, inside Larry’s Super Market at about 3:00 p. m. on the day in question; that the store was closed to business; that he had gone up to the window and that Porter told him to get away; that later that night he saw Wilson receiving cigarettes through a back window and stacking them in a crate.

Homer Slaughter of the Chicago Police Department testified that he investigated the burglary and determined that there had been a forcible exit from the premises; that is, that a barrel or something similar had been thrown against the large plate glass window from the inside. He said it did not appear that there had been a forcible entry.

Defendants testified on their own behalf. They denied commission of the crime, but admitted there was a crate of liquor and cigarettes in their apartment. They both testified that it was brought into the apartment by the witness Marvin Jackson. The defendants denied knowledge of three other crates also containing cigarettes and liquor which were found in the apartment. We proceed to consideration of the points urged for reversal.

As to Point No. 1, that there is a variance between the allegations of the indictment and the proof, the indictments alleged in pertinent part that “on September 28, 1964 . . . Floyd Wilson and Cline Porter committed the offense of burglary, in that they, without authority, knowingly entered into the store of Larry’s Super Market, Inc., . . . with the intent to commit the crime of theft.” Defendants argue that the offense, if it occurred, took place on Sunday, September 27, 1964. The statute provides that the indictment shall state “the time and place of the offense as definitely as can be done.” Ill Rev Stats, c 18, § 111-3 (a) (4) (1963). This section was construed in People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, where the court held that an indictment was not fatally defective where there is a variance as to the time of the alleged offense as long as the proof shows that the crime took place before the date of the indictment and is not barred by the Statute of Limitations. In so holding, the court followed well settled Illinois law under the prior statute. People v. Evans, 24 Ill2d 215, 181 NE2d 80; People v. Rohde, 403 Ill 41, 85 NE2d 24. In the instant case the variance is readily explainable. The burglar alarm was not activated until after midnight of September 28th and the police did not appear until that time. Although the proof showed that the store was entered on September 27th, the error in the indictment in no way prejudiced the defendants.

The second variance alleged by defendants is that there is no proof of illegal entry as charged in the indictment. The statute provides that the offense of burglary is committed when an individual (1) enters without authority with intent to commit a felony or theft, or (2) remains without authority with intent to commit a felony or theft. Ill Rev Stats c 38, § 19-1 (1963). It is conceded by the State that the trial proceeded under the theory that the defendants had “remained without authority” rather than “entered without authority” as charged. The State however urges that the convictions can be sustained despite the apparent error in the framing of the indictments, relying on People v. Schneller, 69 Ill App2d 50, 216 NE2d 510. In that case the defendant was convicted of burglary after having been charged with “entering without authority.” It appeared from the evidence that he remained in a museum past closing time and had stolen certain exhibits. The court affirmed the conviction, reasoning that the defendant had entered without authority because he had entered with intent to commit a theft, whereas the authority which normally clothes an invitee to a public place is limited to entry for a lawful purpose. The defendant argued that the prosecution had not proved entry with intent to commit a felony or theft. The court held that the intent could be inferred from the finding in the defendant’s possession of implements or tools useful in the perpetration of the crime of burglary and from the defendant’s conduct prior to and at the time of his arrest.

In the instant case Pearson testified that he saw Porter go into the storeroom in the back of the store; that the storeroom was closed to the public; and that he did not see him come out of that room. Jackson testified that he saw Porter inside the store at 3:00 p. m., after the store had been closed, and that Porter told him to get away. From that testimony it may be inferred that Porter intended to commit an offense when he entered the store, and the trial court properly found there was an illegal entry.

Defendants’ contention that the trial court applied an incorrect rule of law to the evidence in the case is based on a statement by the judge during trial, that “ [Ujnexplained possession of proceeds of a recent burglary is prima facie evidence of a burglary.” Defendants contend that with respect to burglary the law requires that the possession of stolen goods must be “exclusive” as well as unexplained (People v. Ascey, 304 Ill 404, 136 NE 766; People v. Pride, 16 Ill2d 82, 156 NE2d 551) and that it was not exclusive in the instant case because four other persons were present in defendants’ apartment at the time of the arrest. The testimony of two eyewitnesses was that defendant Wilson received stolen merchandise through the back window of the burglarized store. Exclusive possession was therefore shown at that point. The arresting officer testified that in addition to the crate of liquor and cigarettes which was in open view in the apartment, there were three crates of stolen goods in the pantry and bottles of liquor in defendant Porter’s footlocker. Exclusive possession was thus established. The evidence was adequate to support the finding of guilty beyond a reasonable doubt. The judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE DEMPSEY

text:
    Howard De Correvant, Plaintiff-Appellant, v. Joseph D. Lohman, Sheriff of Cook County, Illinois, et al., Defendants-Appellees.
    Gen. No. 50,856.
    First District, Third Division.
    June 1, 1967.

      Vogel & Vogel, of Chicago (Richard A. Walkovets, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, Vincent E. Bentivenga, Jr., and Ronald Butler, Assistant State’s Attorneys, of counsel), and Dent, Hampton & Doten, of Chicago, for appellees, Norman Hawthorne, Jacob P. Bergbreiter and Peter P. Gutilla.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Howard De Correvant brought an action for malicious prosecution against Joseph Lohman, then Sheriff of Cook County, and Norman Hawthorne, Jacob Bergbreiter and Peter Gutilla, then deputy sheriffs. At the close of the plaintiff’s evidence the defendants moved for directed verdicts, and the motions of Lohman, Bergbreiter and Gutilla were granted. Hawthorne renewed his motion at the close of the trial and it was granted. The plaintiff appeals from the judgments entered on the verdicts.

The action arose out of De Correvant’s arrest and the criminal proceeding against him initiated upon Hawthorne’s signed complaint. The proceeding was before a police magistrate, and De Correvant was found guilty. He appealed to the Criminal Court of Cook County. In a trial de novo before a jury he was acquitted, and shortly afterward commenced this suit.

Defendant Lohman contends that he is not civilly liable for the acts of his deputies when their acts consisted of an allegedly unlawful arrest and malicious prosecution. Defendants Gutilla and Bergbreiter contend that there is no evidence of affirmative action on their part in the arrest and prosecution and that their acquiescence in Hawthorne’s acts is insufficient to impose liability on them. Defendant Hawthorne contends that De Correvant’s conviction before the magistrate created a presumption of probable cause for his prosecution and that he introduced no evidence in the trial of the present case to overcome the presumption. The plaintiff responds that: (1) a statute, Ill Rev Stats, c 125, § 12 (1955), imposes liability on the sheriff for all the acts of his deputies; (2) Gutilla and Bergbreiter testified falsely before the magistrate and their conduct, which contributed to his conviction, subjects them to liability for malicious prosecution; and (3) the presumption of probable cause was rebutted by evidence that the conviction was the result of false testimony.

Late on the evening of May 7, 1955, Hawthorne and Bergbreiter, acting in their official capacities though wearing civilian clothes, entered a tavern in Niles to determine if the premises were being used for gambling. The deputies, having found no evidence of gambling, were about to leave when they overheard the bartender making some uncomplimentary statements about them. Hawthorne went to the bar, answered the bartender and asked to see his liquor license. The deputies accompanied him to a back room where he showed them the license. Here some heated words were exchanged, the men began to scuffle and the bartender was arrested. As the deputies escorted the bartender toward the exit they were met by De Correvant. He told Hawthorne, who was a stranger to him, that he “shouldn’t push people around that way.” An affray of shoving and grabbing broke out between De Correvant and the deputies. Ten minutes later the Niles police arrived and separated the struggling men. The identity of Hawthorne was made known and, pursuant to his statement that he “wanted that man,” De Correvant was taken to the sheriff’s police station and placed in a cell. Deputy Gutilla was on duty in the station and later that evening went to De Correvant’s cell to have his fingerprints recorded and identified. While he was being removed from his cell a fistfight broke out. Hawthorne signed a complaint charging De Correvant with having committed assault and battery at the tavern.

The first issue is the liability of Lohman. The plaintiff’s complaint charged that the deputy sheriffs acted under the supervision and pursuant to the direction of Lohman as sheriff of Cook County and that the defendants and each of them caused a criminal complaint to be executed, caused the plaintiff to be brought before the magistrate and testified against him. However, the plaintiff’s evidence failed to support these allegations: there was no evidence that Lohman ordered his deputies to arrest and prosecute the plaintiff, none that Lohman personally caused the complaint to issue and none that he testified against the plaintiff. Consequently, the liability of Lohman, if any, must be predicated on the fact that he was a superior official charged with the direction of his deputies and responsible for their actions— for the only connection between him and the other defendants which the evidence revealed was that he was the sheriff and they were deputy sheriffs. The plaintiff finds support for this theory of liability in Ill Rev Stats, c 125, § 12 (1955), which provides:

“§ 12. Powers of deputies.
“Deputy sheriffs, duly appointed and qualified, may perform any and all the duties of the sheriff, in the name of the sheriff, and the acts of such deputies shall be held to be acts of the sheriff.”

Illinois courts have held that a public official is exempt from liability for the unlawful acts of his subordinates unless a statute creates liability. Reiter v. Illinois Nat. Cas. Co., 397 Ill 141, 73 NE2d 412 (1947); People v. Gill, 30 Ill App2d 32, 173 NE2d 568 (1961). This court in Kelly v. Ogilvie, 64 Ill App2d 144, 212 NE2d 279 (1965), considered the applicability of this rule to the sheriff. Kelly was an inmate of the county jail who was assaulted by a fellow inmate whom a third inmate, a trusty, had allowed to enter Kelly’s cell. Recovery was sought against the sheriff, who was charged by law with the administration of the jail, and against the warden and a jail officer appointed by him. In our opinion we stated that the sheriff and warden,

“. . . are not accountable for . . . [the jail officer’s or the trusty’s] alleged wrongdoing upon any rule of agency or respondeat superior. According to longstanding rules, a public official having the direction of a subordinate public employee is not thereby responsible for the latter’s conduct. It is the underlying public body which is the principal or master.”

The statutory provision on which the plaintiff relies is not a legislative exception creative of respondeat superior liability. Section 12 is titled “Powers of deputies” and its purpose is to validate the actions of deputy sheriffs, not to sanction respondeat superior liability. No case has been cited to us, and our research has found none, wherein the sheriff was held liable for the acts of his deputies by reason of this section.

The statutory liability of the sheriff is set forth in sections 13 and 16 of chapter 125. Section 13, dealing specifically with the sheriff’s vicarious liability, provides:

“§ 13. Sheriff liable for deputy.
“The sheriff shall be liable for any neglect or omission of the duties of his office, when occasioned by a deputy, in the same manner as for his own personal neglect or omission.” Ill Rev Stats, c 125, § 13 (1955).

The plaintiff cannot utilize this section to further the allegations of his complaint which charged, not neglect or omission, but intentional misconduct by the deputies. Section 16 imposes liability for the sheriff’s disobedience to perform the command of any writ legally issued to him. This section is inapplicable since the deputies were not acting pursuant to a writ. Thus, there was no basis for recovery from Lohman.

The parties agree that De Correvant’s conviction of assault and battery by the magistrate constitutes a prima facie defense to his action for malicious prosecution despite the fact that he was afterwards found not guilty in the de novo trial. They further agree that this defense can be overcome by proof that the conviction was procured by false testimony, fraud, corrupt practices or unlawful means. (Conkling v. Whitmore, 132 Ill App 574 (1907); cf. McElroy v. Catholic Press Co., 254 Ill 290, 98 NE 527 (1912)). But they disagree whether the proof made and offered by the plaintiff at the trial of this case, as to the alleged false swearing of the defendants at his trial before the magistrate, overcame the prima facie defense of probable cause created by his conviction. The plaintiff’s proof in this regard will be examined as to each of the remaining defendants.

In order to hold Gutilla liable, the plaintiff had to prove either that Gutilla initiated the criminal proceeding or that his participation in the proceeding was of so active and positive a character as to -amount to advice and cooperation, Gilbert v. Emmons, 42 Ill 143 (1866). The plaintiff sought to establish the latter by pointing out an instance where Gutilla’s testimony in the instant case differed from his prior testimony. From this the plaintiff concludes that the prior testimony was false and that it led to his conviction.

The contradiction in Gutilla’s testimony was very minor: before the magistrate he testified that a knuckle of his little finger was fractured in the fight at the station, but in the instant suit he stated that the second knuckle on his left hand was injured. This inconsistency does not impeach his credibility and offers no basis for the conclusion that the substance of his testimony before the magistrate was false. Moreover, the complaint against De Correvant charged him with assault and battery at the tavern; Gutilla was not present at the tavern and, of course, did not testify about what occurred there. His testimony dealt with the subsequent happenings at the police station and was irrelevant to the offense charged and could not have been a factor in the conviction. Nor was there evidence that Gutilla counseled that De Correvant be prosecuted. In these circumstances the fact that he testified against De Correvant was not by itself sufficient to justify an inference that he was instrumental in the initiation of the prosecution. See Gooch v. Wachowiak, 352 Mich 347, 89 NW2d 496 (1958).

Bergbreiter was on duty with Hawthorne when the tavern was inspected; he followed Hawthorne back to the bar when the bartender made what they thought were nasty remarks; he told De Correvant not to interfere as they took the bartender away; he came to Hawthorne’s aid after he was grabbed by De Correvant, and assisted in subduing him; he testified against De Correvant before three judges, and his testimony generally corroborated Hawthorne’s. However, we find but one inconsistency in his testimony and this would not warrant a jury in finding that his testimony before the magistrate was false or induced an erroneous decision. He did not arrest the plaintiff or sign the complaint against him and there is no evidence that he directly participated in causing the prosecution or advising it to be made. It was not error to direct a verdict as to him.

As to Hawthorne, the plaintiff contends that a comparison of the testimony which Hawthorne gave before the magistrate with his testimony in the Criminal Court and in the present case reveals inconsistencies which rebut the prima facie defense. In addition, he argues that the rebutting evidence was improperly restricted by the trial court’s erroneous exclusion of Hawthorne’s previous testimony in the Criminal Court which narrated the events which led to his arrest. The trial court limited the plaintiff to an offer of proof as to much of this testimony. Hawthorne argues that the exclusion was proper because the discrepancies were minor and were insufficient proof that his testimony before the magistrate might have been false.

Want of probable cause was an indispensable element of the plaintiff’s case (Hughes v. New York Cent. System, 20 Ill App2d 224, 155 NE2d 809 (1959)) and all the evidence of what took place at the time of and during the disturbance at the tavern was material to that question. Blumenfeldt v. Haisman, 30 Ill App 388 (1889). The excluded evidence would have demonstrated that in the subsequent trial Hawthorne contradicted his testimony before the magistrate in several particulars. The jury could have found that these contradictions impeached Hawthorne’s credibility and fairly supported an inference that, in order to secure a conviction, his testimony before the magistrate was either a fabrication or a deliberate embellishment of what transpired. On the other hand, since approximately nine months elapsed between the plaintiff’s arrest and his trial before the magistrate, and eighteen months between his arrest and the trial in the Criminal Court, and ten years between his arrest and the malicious prosecution suit, the inference that the discrepancies were due to Hawthorne’s lapse of memory is also reasonable. Since it is the function of the jury to choose between conflicting, reasonable inferences, exclusion of Hawthorne’s testimony was error. It was for the jury to determine after hearing the variations in his testimony whether or not he told the truth at the plaintiff’s first trial, and if he did not whether this led the magistrate to find the plaintiff guilty.

The judgments in favor of Lohman, Gutilla and Bergbreiter will be affirmed; the judgment in favor of Hawthorne will be reversed and his cause remanded for a new trial.

Affirmed in part and reversed in part; the cause is remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jeffroe Chandler, Defendant-Appellant.
    Gen. No. 51,007.
    First District, Third Division.
    June 1, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant appeals from a conviction of criminal trespass to a vehicle. The defendant had been indicted for the offense of theft and criminal trespass to a vehicle. Thereafter the defendant moved to suppress an alleged confession. After a hearing the motion was denied. At the trial before a jury a verdict of not guilty of theft and guilty of criminal trespass to a vehicle was returned. The defendant was sentenced to one year in the Cook County jail.

The defendant raises only one point in his appeal, namely, the court erred in holding that the defendant could not deny making a statement and also contends that it was involuntarily made.

On May 10, 1965, the defendant was arrested with one Leo Jenkins in connection with an automobile theft. Leo Jenkins was subsequently released by the police when they determined he had no connection with the theft of the automobile. The police officers testified that the defendant was questioned in a squad car at the scene of his arrest and admitted being with the person who stole the car. One police officer denied that the defendant had been abused or threatened.

The defendant and Leo Jenkins testified that the police officer struck the defendant several times and threatened him at the time of his arrest. The defendant denied that he had made any admission at the scene of the arrest; however, he testified that he had made such an admission at the police station after additional physical abuse.

The police officers denied that there was any conversation at the police station regarding the defendant’s stealing of the car, since the defendant had already admitted it at the scene of the arrest.

It is argued by the defendant that a defendant in a criminal case is entitled, as a matter of right, to a full hearing on the question of whether a statement which the State intends to introduce against him was given voluntarily, and the hearing should be limited to the voluntary nature of the admission. The defendant further contends that he was denied this right because the judge hearing the motion ruled that a person could not move to suppress a statement which he denied making.

In People v. Hegovic, 348 Ill 58, 180 NE 561, the Supreme Court held that where the defendant denies having made any confession or admission there is no necessity for a preliminary hearing as to its voluntary character. However, in People v. Norfleet, 29 Ill2d 287, 194 NE2d 220, the defendant moved to suppress his confession. In support of his motion the defendant testified that he had been beaten by Officer Turner, both when arrested and at the police station, and further, that although the statement was taken, he did not give the answers shown in the transcript. The trial court denied the motion to suppress on the ground that the defendant denied making any confession. On page 291 of the Nor-fleet case the court, relying upon the case of Lee v. Mississippi, 332 US 742, 92 L Ed 330, said:

“It is our conclusion that the Lee case has abrogated the Hegovic rule, and the trial court erred in denying defendant Norfleet a full hearing on the voluntary nature of the alleged confession.”

People v. Cook, 33 Ill2d 363, 211 NE2d 374, adhered to the rule in People v. Norfleet, supra.

The question which now confronts the court is whether the defendant had a hearing on the voluntariness of the alleged admission. The defendant points out that in five separate instances the judge hearing the motion to suppress indicated by his statements that because the defendant denied the admission he was in no position to make a motion to suppress. The statements alluded to by the defendant are the following:

1. “Well, I don’t know what this hearing is about, because the defendant denied making any statement at the scene.”
2. “The defendant denies making any statement at the scene. And yet there is a claim that when he got to the station, and he described it, in the toilet, he did make á statement regarding knowledge of the car being stolen. So it is your claim or position in making the motion to suppress a statement which he allegedly did not make.”
3. “So that is clear, the State is not going to rely on any alleged admission made at the station. It is only relying on a statement made on the scene.
“And the defendant has denied that this was at the scene. So he can’t very well move to suppress anything which he states he did not make.”
4. “But in order to suppress there is a question of whether he did or did not make such admission. But I don’t think that is the subject matter of the motion to suppress, when he denies that he made a statement.”
5. “Then it is a question of fact ultimately for the trier of facts, whether the admission was in fact made. But I don’t see that we have a proper subject matter on a preliminary motion to suppress such as being made now.”

It is argued that the statements made by the judge clearly indicate that he was relying on the rule set forth in People v. Hegovic, supra, and that the hearing did not concern the voluntariness of the admission but only whether the admission had been made. The People argue that the voluntariness of the statement is moot when a jury finds a defendant not guilty on the charge for which the statement was offered, and when it is only relevant thereto. The People also argue that the defendant does not contend that the evidence which was presented at the hearing on his motion to suppress was insufficient to establish the voluntariness of the statement, and therefore the appellant has conceded the sufficiency of the proof to show voluntariness. While it is generally true that the reasons assigned by a judge for his decision are unimportant if his decision is correct, nevertheless, from the record before us we cannot say the judge considered the question of the voluntariness of the admission because of the remarks made by the judge during the hearing, which indicated that the court was relying on the Hegovic rule, which had subsequently been abrogated. The defendant does not contend that there was not a full hearing but that the judge did not rule on the question of voluntariness. The judge hearing the motion has the advantage of seeing the witnesses, observing their demeanor while testifying, their candor or lack of candor while on the witness stand, and shall determine the credibility of the witnesses. However, there is nothing in this record to indicate that a ruling was made involving the credibility of witnesses. From the record before us it appears that the trial judge, while allowing a full hearing on the motion, had uppermost in his mind the thought that a defendant who denied having made an admission cannot question the voluntariness of that admission. The State also argues that the judge ruled on the voluntariness of the statement by saying the following: “Be that as it may, after hearing all the witnesses and recognizing the burden of proof and the law applicable, I will deny the motion to suppress.” However, preceding that statement the court said: “Mr. Jenkins testified to certain acts taking place. He only testified to acts of violence taking place at the scene. And if the defendant persists in his statement, he made no statement at least at the scene, he would indicate that for that purpose Mr. Jenkins’ testimony is irrelevant.” Mr. Jenkins, it will be remembered, was the man who was arrested near the scene of defendant’s arrest, but who was released by the police when it developed that he had no connection with the case. The above statement by the court would tend to indicate that at the time the motion was denied the judge was still under the impression that one could not both deny making a statement and also claim it involuntary. When the court stated that the acts of violence testified to by the witness were irrelevant it indicates that the court did not consider the sufficiency of the evidence on the question of voluntariness. The State, in concluding its argument on voluntariness, says that the statement was held to be voluntary, but we find no statement in the record that would indicate the trial court had so held. The State also argued that the admission which was sought to be suppressed had no relevance to the charge of which the defendant was found guilty. The defendant was found not guilty by the jury as to the theft charge but was found guilty of criminal trespass to a vehicle. The alleged admission of the defendant was that the defendant did not steal the car but was with someone else when the other party stole it. This statement would tend to show criminal knowledge, which is as much an element of criminal trespass as it is of theft.

It is difficult to understand how the jury found the defendant innocent of theft while on the same evidence it found the defendant guilty of criminal trespass when it had the statement before it. It is possible that the jury gave considerable weight to the statement in finding the defendant guilty of criminal trespass. The jury could well have believed that the defendant did not himself steal the automobile but was riding with a thief in an automobile he knew was stolen.

Since we have concluded that the statement of the defendant was admitted in evidence without a determination whether or not it was voluntary, the defendant’s rights have been violated. We therefore remand this cause for a hearing on the question of the voluntariness of the alleged statement of the defendant with direction to the trial court to vacate the judgment of conviction, and if the statement is found to be involuntary, to grant the defendant a new trial, otherwise the trial court will enter a new judgment of conviction. People v. Jackson, 31 Ill2d 408, 202 NE2d 465.

Cause remanded, with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Rucker, Defendant-Appellant.
    Gen. No. 51,634.
    First District, Third Division.
    June 1, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: PRESIDING JUSTICE SULLIVAN.

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Nicolas Franko, Defendant-Appellant, and Russell Wallace, Defendant.
    Gen. No. 51,160.
    First District, Third Division.
    June 1, 1967.
    Sidney S. Altman, of Chicago, for appellant; Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: MR. JUSTICE BRYANT

text:
    George Suchomel, Plaintiff-Appellant, v. Suburban Life Newspapers, Inc., and Karl Bell, DefendantsAppellees.
    Gen. No. 50,852.
    First District, Second Division.
    June 6, 1967.

      Anthony F. Mannina and Angelo D. Mistretta, of Chicago, for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Don H. Reuben and Lawrence Gunnels, of counsel), for appellees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a summary judgment against plaintiff granted on defendants’ motion to dismiss plaintiff’s libel action. Plaintiff, George Suchomel’s theory on this appeal is that it was error for the trial court to allow the motion for summary judgment because the article complained of was not privileged and was libelous per se. In the alternative, the plaintiff urges that any privilege the publication may have had was lost because of the existence of malice on the part of the defendants.

The alleged libelous publication is a newspaper headline, subheadline and article which appeared on December 14, 1963, in defendants’ newspaper. The headline stated, “City Policeman Accused of Burglary”; the sub-headline read, “Countryside Sergeant Denies Charges Brought Before City Council.” The remainder of the article is as follows:

“By Karl Bell
“For the second time in three months Countryside’s police force was placed into the limelight Wednesday when, after a city council meeting, a resident read a statement reportedly received from an area woman who contended, among other things, that Sgt. George Suchomel had twice within the past year, and while on duty made break-ins in the trailer court which is in the city.
“According to the statement read by Robert J. Brinkman, 5339 Kensington, the woman, a divorcee and mother of two, also charges that the two often spent ‘from one to seven hours’ together when the sergeant was supposed to be on night shift and they spent time drinking liquor in the squad car.
“Sgt. Suchomel denied all the charges.
“Brinkman refused to identify the writer, although requested by Mayor Melvin F. Eggert. Brinkman stated that her identity has been known to the mayor and to Police Chief John Girard for weeks.
“IN THE STATEMENT read by Brinkman, the letter writer claims that the sergeant, in uniform and using the squad car, would pick her up and then they would drive to a tavern where he would buy liquor which they would share as they sat in the police car.
“The woman contends, according to Brinkman, that Sgt. Suchomel would ignore radio calls and often would lie about the location of the squad car.
“Also stated was that several times the sergeant fired his weapon into the air ‘for no apparent reason’ and that he had twice broken into residences in the trailer court in Countryside.
“The letter writer also was quoted as stating that she had informed the sheriff’s police about the sergeant’s activities and that she later denied them under pressure to do so by the sergeant.
“Sgt. Suchomel has denied the allegations.
“He told The Suburban Life yesterday T was not at the meeting so I can’t say I heard the actual statement read by Mr. Brinkman, but I’ve heard what was read and, except for the fact that I know the woman who I think Mr. Brinkman is referring to, there’s not a charge in her statement that is true.
“ ‘I’ve told the mayor I have not done any of these things. So far I haven’t been given a chance to formally answer any of the charges, for no formal complaint has been made.’
“Brinkman stated that the mayor had known about the contentions, as brought out by the woman, before the mayor read to the council on September 25, a report from the sheriff’s office in which the sheriff stated his investigations of earlier charges against the chief and the sergeant had no basis for criminal action.
“Brinkman also contended that charges as brought out now by the woman have been confirmed by an investigation of the sheriff’s police and that the mayor has received an affidavit from the sheriff’s office signed by the woman.
“He stated the mayor has been ‘holding out’ by not disclosing the material to the city council.
“Wednesday night the mayor said he would release the contents of the affidavit to the council members.
“Mayor Eggert told The Suburban Life yesterday that on Thursday he contacted the woman in question and that she implied she would be willing to sign a formal complaint that night.
“ ‘The formal complaint was all written up, but when she appeared at the city hall Thursday night she refused to sign. She gave no reason.
“ ‘The question now is, inasmuch as no formal charges have been filed, which group can take any legal action, the council or the civil service board through the police commission ?’
“He said he hoped to secure a legal opinion on the matter by today.
“ T think we have to clear the air and see that the man has every right to be heard as to whether he’s guilty or innocent. Surely, she also has every right to prove her side.’
“Brinkman, along with former officers Richard Kocek and Richard Martin are defendants in a libel suit brought against them by Police Chief John Girard.
“He seeks approximately $200,000 damages from each.
“Wednesday night the city council accepted the resignation of Officer Richard Martin.”

At the time of the alleged libel, the plaintiff was employed as Sergeant of the Police Department of the City of Countryside, and was also Juvenile Officer for the municipality. In September 1963, Suchomel became the subject of serious public charges concerning his official conduct and fitness for office. Two of his fellow officers charged in sworn statements that the plaintiff had been intoxicated on duty, had blocked criminal investigations and had consorted with known members of “the syndicate.” A woman, said to be the mistress of plaintiff, made accusations against the plaintiff, including charges that Suchomel had had intercourse with her while on duty, and that the two of them consumed alcoholic beverages while he was on duty, and that he ignored orders given to him over the radio while he was on duty. These charges became the subject of the already mentioned public hearing after which they were related in the alleged libel by the Suburban Life Newspapers, Inc.

Suchomel does not in any way attack or dispute the vast bulk of the article; his claim of libel is based instead upon the headline, subheadline and lead of the story,

“For the second time in three months Countryside’s police force was placed into the limelight Wednesday when, after a city council meeting, a resident read a statement reportedly received from an area woman who contended, among other things, that Sgt. George Suchomel had twice within the past year, and while on duty made break-ins in the trailer court which is in the city.”

We are of the opinion that the issues raised on this appeal are controlled by New York Times Co. v. Sullivan, 376 US 254. In that case the Police Commissioner of Montgomery, Alabama, sued the New York Times for having printed an advertisement which falsely criticized his official conduct. In holding against the plaintiff, the court said, at p 280, that,

“The constitutional guarantees require, we think a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The court did not in New York Times Co. v. Sullivan, supra, set forth how far down the governmental hierarchy the privilege of comment on official conduct would go. However, in Rosenblatt v. Baer, 383 US 75, a case involving the alleged libel of the supervisor of a municipal ski resort, the court, at p 85, stated that,

“It is clear, therefore, that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

Recently it was held that a patrolman in the employ of the Village of Skokie did not fall within the boundaries of the statement of the court in the Rosenblatt case. Coursey v. Greater Niles Tp. Pub. Co., 82 Ill App2d 76, 227 NE2d 164.

The record establishes that the plaintiff in the instant case was a man with “substantial responsibility for or control over the conduct of governmental affairs.” Plaintiff was not only sergeant of the Countryside police, but was second in command to the chief and in actual command when his superior was off duty. Plaintiff also served as the juvenile officer for the suburb.

Plaintiff also contends that even if there was a privilege, as we have so found, that that privilege was lost. The burden of proof in establishing actual malice is always upon the plaintiff. New York Times Co. v. Sullivan, supra, at p 284. Moreover, the Illinois Supreme Court in a subsequent case has declared that in every libel suit in Illinois where actual malice must be shown, the burden of proof, “is always upon the plaintiff.” Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, at 115, 214 NE2d 746.

The court in Lulay v. Peoria Journal-Star, Inc. supra, at pp 115-116 stated further that,

“The privilege to report governmental acts or ut- • terances can only be defeated by proving that a particular publication was motivated solely by actual malice. (Judge v. Rockford Memorial Hospital, 17 Ill App2d 365; Beyl v. Capper Publications, Inc. 180 Kans 525, 305 P2d 817.) As expressed in the Restatement of Torts, section 611, a publication reporting government proceedings is nonactionable unless published ‘solely for the purpose of causing harm to the person defamed.’ . . . Although the plaintiff contends that the defendant here was guilty of actual malice, plaintiff did not offer any evidence remotely creating an issue of fact as to whether defendant’s news article was conceived or inspired solely because of a malicious design to injure the plaintiff or his business. The plaintiff had the obligation both upon the motion for summary judgment and at the trial to adduce all of the evidence he believed would satisfy his burden. Harrell v. Summers, 32 Ill App2d 358; Porter v. Miller, 24 Ill App 2d 424; Killian v. Welfare Engineering Co., 328 Ill App 375.”

It is manifest both from the record and from a reading of the defendants’ news article that actual malice in this case is patently lacking as a matter of law — that the plaintiff neither did nor could sustain the burden of proof required to establish actual malice. The article on its face is a typical example of a matter-of-fact news coverage of the official inquiry and public controversy that occurred as a result of the serious charges of official misconduct committed by the plaintiff. The article, in fact, went to great lengths to set forth both sides of the controversy; it specifically reports and quotes plaintiff’s denials of the charges.

Plaintiff not only failed to offer any proof of actual malice, but he also failed to plead or prove special damages. Since we have found that the defendants’ article is privileged under the holding of New York Times Co. v. Sullivan, supra, and is accordingly not libelous, per se, plaintiff was required to plead and prove special damages. Lundstrom v. Winnebago Newspapers, Inc., 58 Ill App2d 33, 206 NE2d 525.

Section 57, Civil Practice Act provides that summary judgment is proper whenever there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Upon a motion for summary judgment in a libel suit where the plaintiff, as here, had the burden of proving actual malice, it has been held that the plaintiff must “adduce all of the evidence he believed would satisfy his burden.” Lu-lay v. Peoria Journal-Star, Inc., supra, at 116. The court was right in deciding as a matter of law that plaintiff does not have a right of action.

Therefore the judgment of the trial court is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. JUSTICE DRUCKER

text:
    Bernice Esczuk, Plaintiff-Appellant, v. Chicago Transit Authority, a Municipal Corporation, Bernard Kupinski, Greco Contractors, Inc., and Eugene McCartney, Defendants-Appellees.
    Gen. No. 51,691.
    First District, Fourth Division.
    May 26, 1967.

      Bernard Davis and Leon C. Wexler, of Chicago (Leon C. Wexler, of counsel), for appellant.
    George J. Schaller, O. R. Hamlink and Jerome F. Dixon, of Chicago, for Chicago Transit Authority and Bernard Kupinski, appellees.
    Mortimer, Nolan, O’Malley and Dunne, of Chicago, for Greco Contractors, Inc., and Eugene McCartney, appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a denial of her petition to reinstate the case after a dismissal for want of prosecution when she failed to appear for pretrial.

Plaintiff’s verified petition, to which defendants did not file an answer or a motion to strike, was filed under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72) and stated that the case was called for pretrial conference on January 18, 1965; that plaintiff had no knowledge of the pretrial and did not attend; that because plaintiff failed to attend the case was dismissed for want of prosecution; that neither plaintiff nor the defendants received notice of the dismissal; that plaintiff assumed the matter was pending on the trial calendar but, when the case did not appear on the calendar in its normal chronological order in June 1966, the court file was checked and the dismissal discovered; that plaintiff immediately took steps to have the case reinstated; that plaintiff has a good cause of action; and that plaintiff was not culpably negligent. In its order of dismissal the court stated:

It appearing that the Court has jurisdiction of the parties in the above entitled cause and the cause being reached on the regular Pre-Trial Call; that no response was made for either party, IT IS THEREFORE ORDERED that the above entitled cause be and it is hereby dismissed for want of prosecution without costs.

Since the defendants did not answer or contest the plaintiff’s petition in the trial court, the allegations set forth in the petition must be taken as true. Gleason v. Brazauskas, 70 Ill App2d 276, 217 NE2d 298. A proceeding under section 72 invokes the equitable powers of the court as justice and fairness require. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. In the instant case it is uncontradicted that (1) plaintiff was not notified of the pretrial or of the dismissal for want of prosecution; (2) that plaintiff immediately checked the court file when the case did not appear on the trial calendar in its normal chronological order and (3) that plaintiff has a good cause of action.

After considering the uncontroverted petition of plaintiff we find that the refusal to reinstate the case was an abuse of discretion. Therefore the order denying the petition to reinstate is reversed and the cause remanded with directions to sustain the petition.

Reversed and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.


author: JUSTICE BURKE.

text:
    Ralph DeMilio, Plaintiff-Appellee, v. Gladys D. Schnoor, Administrator of the Estate of Harold Schnoor, Deceased, Defendant-Appellant.
    Gen. No. 51,564.
    First District, Second Division.
    June 6, 1967.
    otherwise judgment reversed and cause remanded for a new trial on the issue of damages. Robert G. Johnston, of Chicago, for appellant; Peterson, Bogucki & Bickley, of Chicago (George A. Beck, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.