author: Mr. PRESIDING JUSTICE CRAVEN Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Delbert Ellis, Defendant-Appellant.
    (Nos. 11964-66 cons.;
    Fourth District
    February 26, 1973.

      TRAPP, J., dissenting.
    John F. McNichols, of Defender Project, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (James R. Coryell, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant appeals from convictions entered upon his plea of guilty to one charge of forgery and two charges of burglary. Three concurrent sentences of not less than two years nor more than six years were imposed.

The offenses here involved were committed in October and December 1971. The forgery charge relates to forging the signature of the maker on a $5 check and the two burglary charges relate (1) to taking two radios, a record player and $140 in cash from a business establishment known as Colonel’s Auction, and (2) taking of a television set, a record player, a guitar, and jewelry box from a private residence.

The defendant was born in August 1954, thus, he was 17 years old at the time of the offenses and at the time of all the proceedings here under review. He urges that the treatment of a 17-year-old male as an adult is violative of his constitutional right to equal protection of the law inasmuch as 17-year-old females at the time of these proceedings would have been subject to the provisions of the Juvenile Court Act.

The pleas of guilty in this case originated through plea bargaining after the defendant had been in jail for some 98 days in lieu of bail. The agreement reached by negotiation was one to the effect that the defendant would enter pleas of guilty and ask for probation. The matter would be referred to the probation officer and the State’s Attorney agreed to concur in the recommendation of the probation officer with reference to the issue of probation. In the event that probation was denied, then the recommendation of the People would be the imposition of three concurrent sentences, each with a minimum of two years and the maximum of six years.

The report of the probation officer was filed in the circuit court in May of 1972 and that report recommended the denial of the petition for probation. At the hearing on the petition, the State’s Attorney concurred in that recommendation and urged denial. The defendant and his father, William Ellis, testified in support of the petition for probation.

At the hearing, it was developed that the defendant had been involved at an earlier date in the theft of some bicycles and had been on probation as a result of a delinquency proceeding in Moultrie County and had a curfew violation in May of 1971. The foregoing was his prior criminal record. The evidence was that the defendant was one of thirteen children, nine of whom were still living at home with the parents. The father was then unemployed and had been for several months. The family income was unemployment compensation and income received from the Aid to Dependent Children program. The mother is described as in poor health suffering from diabetes and an inactive stage of tuberculosis and had recently been hospitalized for four months. Three other children of this family had been involved either in criminal or delinquency proceedings in Macon County. In denying probation, the court observed to the father that:

“Mr. Ellis, in passing on these petitions we’re always looking for something favorable on which we think maybe probation will work, in that we hope that we can grant probation and it will be successful.
One of the things we look for us, what is his home life, how much help will he get from his parents, and here we couldn’t have a more miserable picture than what this report shows. As far as father you appear to be a complete failure. You haven’t worked all winter, you’re living off of welfare. When asked about ADC, you say some, like it is pittance and the report shows you’re drawing a lot of money, $338.00 ADC and two hundred and some on compensation.
You haven’t had control of this boy for years, have you? In that this shows back in ’69 he was kicked out of Mt. Zion school and he was only 14 then.
You can’t manage your family, can you, when the report shows that his older brother has been to the penitentiary and his younger brothers are in trouble now?
If he were returned to your home, you wouldn’t be the slightest bit of good influence on him, would you?”

Section 702 — 2, ch. 37 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 2), defines a delinquent minor as “any boy who prior to his 17th birthday or girl who prior to her 18th birthday has violated or attempted to violate * * * any * * * state law * * Section 702 — 7, ch. 37, of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7), provides that unless the procedure set out in the Juvenile Court Act was followed: “No boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this state * * (Emphasis supplied.) The defendant thus argues that a female defendant under the exact same facts and circumstances as those existing in his case would be afforded the protection of at least having the Juvenile Court Act procedure followed prior to prosecution as an adult felon. The different classification by age because of sex is said to be violative of equal protection of the laws and to be specifically prohibited by section 18 of article 1 of the 1970 Illinois Constitution. This constitution became effective on July 1, 1971 and is fully applicable here. That section reads:

“The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.” S.H.A., Const., Art. 1, Sec. 18.

The contention of the defendant with reference to unconstitutional classification was considered by the Illinois Supreme Court in People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656. That opinion was filed in November 1970 and rehearing was denied in January 1971. The court in Pardo was considering the validity of the classification in the Juvenile Court Act with reference to the equal protection clause of the tiren Illinois Constitution and upheld the classification as being neither invidious nor arbitrary but within the legislative discretion.

The defendant acknowledges the holding in Pardo as contrary to his present contentions and asserts that the subsequent adoption of the new constitution and that subsequent developments in the area of equal protection as it relates to classfication based upon sex are such that Pardo may no longer be controlling. These subsequent developments are that the United States Supreme Court in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, invalidated an Idaho statute that gave mandatory preference to male applicants over female applicants with reference to appointment of administrators of a decedent’s estate. Such was held to be violative of the equal protection clause of the United States Constitution.

In Stanley v. Illinois (April 1972), 405 U.S. 645, 31 L.Ed.2d 551, the United States Supreme Court held that an Illinois statute which made the children of umyed fathers wards of the state upon the death of the mother unconstitutional. It was a denial of equal protection, the court held, to refuse a hearing to unmarried fathers as to their fitness and to have custody of their children and to presume that unwed fathers as opposed to unwed mothers are unsuitable or neglectful parents. In the case of A v. City of New York, the court of appeals of New York in an opinion rendered July 7, 1972, 31 N.Y.2d 83, 335 N.Y.S.2d 33, held a New -York statute that purported to differentiate between males and females on the basis of age to be unconstitutional. The court said:

“(3) Discrimination by the State between different classes of citizens must, at the very least, “have some relevance to the purpose for which the classification is made/ (Baxstrom v. Herold, 383 U.S. 107, Ill. 86 S.Ct. 760, 763, 15 L.Ed.2d 620; see, also, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, decided April 3, 1972; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, decided March 22, 1972; Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225; Matter of Jesmer v. Dundon, 29 N.Y.2d 5, 9; Seidenberg v. McSorley’s Old Ale House, D.C., 308 F.Supp. 1253; Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; Matter of Louise B., 68 Misc.2d 95, 326 N.Y.S.2d 702.) Phrased somewhat differently, the classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. (Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, supra.)
(4) The object of the PINS statute is to provide rehabilitation and treatment for young persons who engage in the sort of conduct there proscribed. This affords no reasonable ground, however, for differentiating between males and females over 16 and under 18. Girls in that age bracket are no more prone than boys to truancy, disobedience, incorrigible conduct and the like, nor are they more in need of rehabilitation and treatment by reason of such conduct.”

In Pardo, our Supreme Court noted that Illinois was not alone in distinguishing between males and females on the basis of age for purposes of determining their juvenile status and cited Oklahoma and Texas statutory provisions. The Oklahoma statutory provision was the subject of review, and in Lamb v. State, 475 P.2d 829, the court upheld the classification “premised upon the demonstrated facts of life” and refused to interfere with the legislative judgment. Subsequent to that opinion, the United States Court of Appeals, 10th Circuit, in Lamb v. Brown, 456 F.2d 18, declared the statute unconstitutional and concluded that there yvas no rational justification for the disparity and treatment between males between the ages of 16 through 18 and females of like age. They thus invalidated the statute.

The statutory provision in Illinois here under review was changed as part of the new Code of Corrections and section 702 — 7 has been amended to provide that no minor who was under 17 years of age at the time of the alleged offense may be prosecuted except as provided in the Juvenile Court Act. Such amendment was by Public Act 77 — 2096, effective January 1, 1973. The prior classification here under attack, while not unique to Illinois at the time, has been changed. The Oklahoma statute has likewise been changed and it now appears that Texas is unique in distinguishing between males and females on the basis of age for purposes of determining their juvenile status. An appendix attached to the appellant’s brief makes reference to the statutory provisions of all of the states and the only state that now distinguishes between males and females for purposes of determining juvenile status by age and sex is the State of Texas.

Hie decision of the Illinois Supreme Court in Pardo is determinative of the issue and clearly binding upon this court upon the issues of the validity of the classification under the constitution of 1870. However, subsequent adoption of the new constitution and the specific provision in the Bill of Rights of that constitution of a self-executing prohibition against a denial of equal protection of the law on account of sex is now applicable. This is clearly in addition to the equal protection clause and carves out an additional protection. The statutory provision here under review is clearly a denial of equal protection based upon a classification by the state on account of sex and the same is invalid and unconstitutional. The defendant was, therefore, at least entitled to the procedural protection of the Juvenile Court Act before prosecution as an adult. The denial of that protection and the granting of such protection to a female defendant similarly situated clearly amounts to a denial of equal protection.

This issue was not presented to nor ruled upon by the trial court and it is generally held that such failure precludes raising the issue for the first time upon appeal. (People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353.) There are, however, exceptions to that rule which we think are applicable here. Under Supreme Court Rule 615 and the predecessor statute with reference to plain error, tins court is permitted to note substantial defects or plain errors that affect substantial rights or that relate to fundamental fairness. We do so even if the issue was not presented to and passed upon by the trial court. In People v. Shelton, 42 Ill.2d 490, 248 N.E.2d 65, the Supreme Court noted that a plea of guilty would not preclude inquiry into an asserted violation of constitutional rights. In People v. Evans, 37 Ill.2d 27, 224 N.E.2d 778, the defendant had voluntarily entered a plea of guilty but claimed that the trial court admonitions were inadequate so that he could not have knowingly and intelligently waived constitutional rights. In this case, as in Evans, a substantial right of the defendant is involved. That right is of constitutional dimensions and although not raised in the trial court, under the authority of Supreme Court Rule 615 and the doctrine of plain error affecting substantial rights, we reach the issue. See People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432; People v. Henderson, 119 Ill.App.2d 403, 256 N.E.2d 84; and People v. McCollough (1972), 8 Ill.App.3d 963, 291 N.E.2d 505.

We note here that a penitentiary sentence was imposed upon denial of probation and the record clearly reflects the home situation was a factor in the trial court’s determination that probation might not succeed. We note that if proceedings had been instituted under the Juvenile Court Act by way of delinquency petition, additional dispositional options would have become available to the trial court upon a determination of delinquency. (See Ill. Rev. Stat. 1971, ch. 37, par. 705 — 2, et seq.) We also note that the statute refers to age “at the time of the alleged offense” (emphasis supplied) and not age at the time of the proceeding. Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7.

The judgment of the circuit court of Macon County is reversed and this cause is remanded to that court with directions to afford the defendant those rights under the Juvenile Court Act he would have had but for the denial of equal protection as of the date of this offense notwithstanding the present age of the defendant.

Reversed and remanded with directions.

SIMKINS, J., concurs.

Mr. JUSTICE TRAPP

dissenting:

The conviction should be affirmed upon the authority of People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656. In Pardo there was claim of denial of equal protection under the Fourteenth Amendment of the United States Constitution. On May 24, 1971, the United States Supreme Court dismissed Pardo’s appeal “for want of a substantial federal question”. (Pardo v. Illinois, 402 U.S. 992, 29 L.Ed.2d 158, 91 S.Ct. 2179.) There is similar constitutional history in Wark v. State, Me., 266 A.2d 62. The Supreme Court of Maine held valid a classification between males and females for the purpose of a sentence imposed for the offense of escape. (Cert. denied, 400 U.S. 952, 27 L.Ed.2d 259, 91 S.Ct. 255). Thereafter, habeas corpus based upon a claim of denial of equal protection was denied in the Federal District Court. Such denial was affirmed in Wark v. Robbins, 458 F.2d 1295.

Neither Stanley v. Illinois, (U.S.), 31 L.Ed.2d 551, (92 S.Ct.), nor Reed v. Reed, 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251, are persuasive authority upon this issue. In Stanley, the denial of equal protection was sustained upon the fact that an unmarried father was denied a hearing upon the issue of fitness for custody, whereas such hearing was required in order to take custody from the married father. The issue of equal protection was not essentially a matter of classification by sex. In Reed, the person contesting the appointment as administrator was of the same statutory class. The Idaho Supreme Court stated that the statutory preference of appointment of the male member of the class was a means of eliminating controversy in the Probate Court among those in the same class seeking appointment. The United States Supreme Court found a denial of equal protection because of want of valid criteria related to the objectives of probate statute. Here, however, the question of criteria is settled by Pardo.

The principal opinion asserts the supremacy of Art. 1, § 18 of the Illinois Constitution of 1970. A search of the Report of Proceedings of the Convention reveals no committee examination or report upon the Section and no debate thereon. That Constitution in Art. 1, § 2, provides that no person shall be denied due process or “the equal protection of the law”. The principle of equal protection has been explored since the adoption of the Fourteenth Amendment of the United States Constitution. Section 2 appears to substantially adopt the language of the Fourteenth Amendment, and presumably its meaning. In Reed, the Supreme Court said:

“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny the States the power to treat different classes of persons in different ways.”

The Records of Proceedings, Vol. I, pages 547 and 548, of the Sixth Illinois Constitutional Convention, Journal of August 6, 1970, reveals that such Art. 18 was first presented from the floor of the Convention in the language “Equality under the law * * *.” Upon motion made and adopted, the language was amended to read, “The equal protection of the law * * *.” Such action gives a reasonable basis for concluding that the “equal protection” of Art. 18 is to be applied within the perimeter of established constitutional history, rather than to create a new inflexible equality.

Despite the infinite breadth in the spectrum of the equal protection clause of the Fourteenth Amendment, the principal opinion would create a new “equal protection” which could only operate independently or at variance within the established constitutional history. Since “equal protection” can only be “equal protection”, the constitutional anamoly created is not required.


source: Caselaw Access Project

author: Mr. JUSTICE TRAPP Mr. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    Catherine Cleary, Plaintiff-Appellant, v. Catholic Diocese of Peoria, Defendant-Appellee.
    (No. 11736;
    Fourth District
    February 26, 1973.

      Rehearing denied March 23, 1973.

      CRAVEN, P. J., dissenting.
    Thomson, Thomson & Mirza, of Bloomington, (James Walker, of counsel,) for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, (Ralph Schroeder, of counsel,) for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

The trial court dismissed this complaint for personal injuries. Plaintiff elected to stand on her pleadings and the court entered judgment for defendant. Plaintiff’s appeal to the Supreme Court was transferred to this court.

The defendant maintains and operates a non-profit private high school. The first count of the complaint undertook to plead negligence by the defendant in permitting snow or ice to accumulate or remain on a certain football bleacher, and that plaintiff, as a patron of the school football program, fell suffering injuries. The second count undertook to plead such circumstances within the terms of products liability as stated in Suvada, 32 Ill.2d 612, 210 N.E.2d 182. Plaintiff has filed in this court following submission of the case, a motion which asks that the second count be dismissed with prejudice. The motion is granted.

The defendant filed a motion to dismiss the complaint upon the grounds that the purported allegations of negligence failed to state a cause of action, and that the complaint contained no allegation of notice as required by Ill. Rev. Stat. 1967, ch. 122, pars. 823, and 827.

The injury occurred on November 8, 1968, and the complaint was filed on March 26, 1970. An amended motion to dismiss urged that the complaint showed upon its face that the action was barred by the period of limitations provided in paragraph 822 of such statute.

Paragraph 821 through 831 of chapter 122 were enacted in 1959 as an apparent response to the decision in Molitor v. Kaneland Com. Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, which held school districts liable for negligence of its employees and abolished the rule of tort immunity for school districts theretofore existing.

The legislation undertook to state public policy with regard to public schools and non-profit private schools conducted by eleemosynary or religious institutions. Paragraphs 823 and 824 required the giving of written notice of claim of injury within six months of the injury and provided that failure to give such notice barred the action. Paragraph 822 required that the civil suit be brought within one year.

Plaintiff did not file any responsive amendment to Count 1 following the motion to dismiss. The motion was heard and the court overruled it as directed to the sufficiency of the allegations of negligence. The court reserved ruling upon the issues of the notice requirement and the period of limitations. Written briefs were submitted.

The written briefs in the trial court are included in the record and are directed entirely to the issue of the constitutionality of the several statutory provisions, in the light of the opinions in Lorton v. Brown County School Dist., 35 Ill.2d 362, 220 N.E.2d 161, and Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336, 243 N.E.2d 203. Such briefs do not refer to the sufficiency of the allegations of negligence, or any other issue.

The plaintiff, in electing to stand upon her pleadings, did not seek to amend the complaint to frame a specific constitutional issue. The written orders of the trial court did not include any findings or specifications of reason for dismissal, or the judgment entered upon the pleadings. Plaintiff’s briefs in this court are directed solely to the provisions concerning the notice requirement and the statute of limitations, and urges that they are necessarily unconstitutional in the light of the cited cases and the companion authorities.

Defendant agrees that the constitutional issue was presented to the court, but urges that there is no ruling of record upon the constitutional questions. A comparable problem was considered in Van Meter v. Stout, 45 Ill.2d 7, 256 N.E.2d 784. The court there considered the trial court briefs as well as the record, and determined that in that case a constitutional issue was neither presented nor ruled upon below. Here, we find that the only other issue in the trial court was the sufficiency of the allegations to state a cause of action in negligence, and the tidal court overruled the motion to dismiss upon such grounds. The remaining issue under the motion was the constitutional issue argued and considered by the court.

The constitutional provision concerned is Art. IV, par. 22 of the Constitution of 1870 and its language forbidding any grant of special privilege or immunity. The issue here was examined in Harvey v. Clyde Park Dist., 32 Ill.2d 60, 203 N.E.2d 573, wherein the Park District asserted statutory immunity. The court examined the several statutes concerning the tort liability of the many local governmental entities and discovered that while such engaged in the same, comparable and similar activities and functions, the statutes were inconsistent or contradictory in that some entities were declared to be immune from liability, the liability of some was limited in dollar amounts, while others were totally liable. The conclusion in Harvey was that the statutes did not provide any rational classification of the entities viewed in the light of function and common activity, and that under the statutory pattern the rights of some injured were enlarged as against the rights of others. It was determined that the statutory immunity of the Park District was unconstitutional as a grant of special immunity in violation of the constitutional provision.

In Lorton v. Brown County School Dist., 35 Ill.2d 362, 220 N.E.2d 161, the court limited its consideration of the constitutional issue as to the statutory requirement of notice of claim of injury provided in ch. 122, pars. 823 and 824, and for the reasons and upon the principles and authority of Harvey, determined that the statute was in violation of the constitutional requirements. The court noted that the pleadings did not raise any other issues under the statutes and expressly refused to invalidate the other provisions of ch. 122, par. 821, et seq.

In Treece v. Shawnee Com. School Dist., 39 Ill.2d 136, 233 N.E.2d 549, an issue was tire constitutionality of Ill. Rev. Stat. 1965, ch. 122, par. 825A, which limited the tort liability of public school districts to $10,000. Such provision was held unconstitutional for the reasons and upon the authority of Harvey and Lorton. In Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336, 243 N.E.2d 203, the issue was limited to the constitutionality of Ill. Rev. Stat. 1965, ch. 122, par. 825B, which limited damages for personal injuries against private, nonprofit schools. The court noted that after the decision in Treece declared unconstitutional the damage limits applicable to public schools:

“[I]t would be erratic judicial law making, in derogation of the legislative intent, to sustain only the damage limitations applicable to nonprofit private schools. Such a result could certainly create an arbitrary classification among students whereby those attending public schools could recover the full measure of their damages resulting from the school’s negligence, but those attending nonprofit private schools would be entitled only to a limited recovery.”

The Legislature has adopted the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Rev. Stat. 1965, ch. 85, par. 8 — 101), which provides a statute of limitations of one year as to actions for personal injuries against school districts, and other entities of local government. Such provision was held to be constitutional in Fanio v. John W. Breslin Co., 51 Ill.2d 366, 282 N.E.2d 443. Such act further provides that notice of claim of injury must be made within six months as had been provided in Harvey and Lorton. Such provisions have been held constitutional. King v. Johnson, 47 Ill.2d 247, 265 N.E.2d 874 and Housewright v. City of LaHarpe, 51 Ill.2d 357, 282 N.E.2d 437.

In the several cases constituting judicial review of ch. 122, par. 821 et seq., there has been no judicial determination that par. 822 was unconstitutional. It provides the same period of limitations as found in ch. 85, par. 8 — 101, and held constitutional in Fanio.

The decisions reviewed make it clear that it is the totality of conditions and circumstances under which the statute is applied which determines its constitutionality, i.e., in Lorton the requirement of six months notice was unconstitutional when applied without a rational basis of classification, but it was held constitutional when applied under a proper classification as in King v. Johnson.

The legislative policy expressed in ch. 122, par. 821, clearly links public schools and nonprofit private schools operated by bona fide eleemosynary or religious institutions in a classification of function and activity. Tire language in Haymes supports the conclusion that the Supreme Court considered such a proper classification when it said:

“The damage limitation of $10,000 for tort actions against public schools under section 825, subd. A., and against nonprofit private schools under section 825, subd. B is purely arbitrary as compared with the liability of other governmental units and institutions.”

Common observation of the operation and activities of public and tire described private schools leads to a conclusion that their functions and activities may be joined as a classification. Plaintiff has contended that nonprofit private schools should be placed within the category of individuals or corporations for purposes of the statute of limitations. To so hold would bring us again to arbitrary classification as noted in Haymes between those dealing with public schools and those dealing with nonprofit private schools in disregard to the test and function of activity stated in Harvey.

The constitutionality of a statute of limitations of one year is to be examined in the light that the Legislature has established a classification and that the court will not interfere unless such classification is without a rational basis. (King v. Johnson, 47 Ill.2d 247, 265 N.E.2d 874.) The function and activities of public schools and nonprofit private schools are so essentially similar as to constitute a rational classification under the test of Harvey v. Clyde Park Dist. Under the existing statutory scheme there is the same legal remedy for all who are similarly situated. Lorton v. Brown County School Dist., 35 Ill.2d 362, 220 N.E.2d 161.

In Delany v. Badame, 49 Ill.2d 168, 274 N.E.2d 353, the court said that it would be presumed that the Legislature acted conscientiously and that its judgment would stand unless clearly arbitrary and unreasonable.

The judgment of the Circuit Comt is affirmed.

Affirmed.

SMITH, J., concurs.

Mr. PRESIDING JUSTICE CRAVEN

dissenting:

The thrust of the majority opinion is to hold an invalid classification valid by reason of subsequent legislative acts. The majority concludes that the total legislative package results in a reasonable classification. I am not persuaded by that reasoning. The cited cases of Lorton, Harvey and Haymes would indicate a different result. Accordingly, I dissent.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Spencer, Defendant-Appellant.
    (No. 55965;
    First District (3rd Division)
    February 15, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Ronald R. Katz and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Albert Rosendahl, and Mark Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, James Spencer, was charged with burglary, attempt to commit burglary, and possession of burglary tools. At a bench trial, Spencer was found not guilty of burglary and attempt to commit burglary and was found guilty of possession of burglary tools. He was sentenced to the penitentiary for a term of not less than 18 nor more than 24 months. He appeals.

Spencer raises two points for our consideration. First, he contends that the evidence was insufficient to support the trial court’s finding that he was guilty of possession of burglary tools. Second, he contends that his arrest and search of his person were without probable cause and violated his constitutional rights, and that the court committed reversible error-in admitting physical evidence which was the fruit of this illegal search and seizure.

We reverse.

On January 11, 1971, at about 2:45 P.M. in response to a police radio communication alerting them to a male Negro wearing a long, gray overcoat, Chicago Police Officers Wayne Heimann and John McKenna spotted a person wearing a gray overcoat who was later identified at trial as the defendant. The police officers, who were in civilian dress and an unmarked car, stopped their car approximately 100 to 150 feet behind the man and observed him walking westbound on 78th Street in Chicago until he got to the corner of 78th Street and Winchester Avenue. At this point the defendant started walking southbound on Winchester on the west side of the street. The police officers drove their car to the corner of 78th Street and Winchester so that they could observe the defendant walking down Winchester. The defendant reached the middle of the block when he crossed over to the east side of the street. Both officers saw him enter the building at 7837 South Winchester, and they drove their car up to that location. Officer Heimann saw the defendant go into the inner door of that building. The inner door and outer door of the building were separated by a small vestibule. Stairs led from the inner door up to two apartments, one on the first floor and one on the second floor.

After parking their car and making a broadcast, the two officers went to 7837 South Winchester and saw the defendant between the outer door and the inner door. Officer Heimann testified that at this time Spencer appeared to be hiding something under a rug or floor mat. Officer McKenna testified that Spencer reached down and put something under the doormat. At this point Spencer was detained, Officer Heimann picked up the doormat, and both officers observed a kitchen knife with approximately an 8 inch blade and a serrated edge. Spencer was placed under arrest, and two pocket knives were found on his person as the result of a search. Both knives were of the pull-out type, one with a blade from 4% to 5 inches long, the other with a blade about 3 inches long. All three knives were identified by each police officer and admitted into evidence as people’s exhibits. A further investigation of the premises revealed wet footprints on the stairs going up to the land on the first floor and coming down again. At the time of Spencer’s arrest no one was at home in the building. Officer Heimann testified that there was no indication of forcible entry anywhere in the building.

Albert Nowicki, who owned the building and lived on the first floor with his wife and two young children, testified that on January 11, 1971, at 8:00 A.M. he left for work while his wife and children were still at home. As to whether the various doors in the building were locked or ■unlocked, Nowicki testified that the outer door was always unlocked, that the inner door was always locked and had to be pushed shut, and that the door to his apartment was always locked and had to be pulled shut. Upon leaving the building Nowicki testified that both his apartment door and the inner door were shut and locked. It was stipulated at trial that if Mrs. Shirley Nowicki were to testify, her testimony would show that she left the building at about 10:00 A.M. and locked the door to her apartment. When she returned home Spencer had already been arrested.

Mr. Nowicki testified that when he left home that morning an accordian case which is usually kept on the first floor landing was closed. Mrs. Nowicki’s stipulated testimony showed that when she left home that morning she also observed that the case was closed. Officer McKenna testified that upon investigation of the premises after Spencer’s arrest, he observed an open suitcase on the first floor landing.

The defendant Spencer testified on his own behalf. On direct examination he stated that he went to 7837 South Winchester to find a friend. As to the knives, he denied owning the butcher knife and stated that he carried one of the pocket knives for protection and intended to give the other pocket knife to his nephew in the Navy. He denied using any of the knives to gain entrance to the building.

Spencer’s testimony on cross-examination showed that he was looking for a man named Emil Wells who had promised him a job but whose address he did not know. After inquiring in the neighborhood as to the whereabouts of Wells, Spencer was directed to the middle of Winchester Avenue between 78th Street and 79th Street. Spencer did not see Wells’s name on the mailbox at 7837 South Winchester and received no answer when he rang the bell for the first floor apartment. He further testified that the inner door of the vestibule was ajar, that he entered, and that when he received no answer to his knocking on the door of the first floor apartment, he returned to the point where he was arrested. He denied putting the kitchen knife under the doormat. As to the accordian case, he denied opening it.

At the close of the State’s case, the court granted defendant’s motion for a directed verdict of not guilty as to the burglary count and the attempt to commit burglary count, and denied the motion for a directed verdict as to the possession of burglary tools count.

Tire defendant contends that the evidence was insufficient to support a finding that he was guilty of possession of burglary tools. The statute provides in pertinent part: “Whoever possesses any key, tool, instrument, device, * * * suitable for use in brealdng into a building, * * * or any part thereof, with intent to enter such place and with intent to commit therein a felony or theft shall be imprisoned * * Ill. Rev. Stat. 1969, ch. 38, sec. 19 — 2.

In order to sustain a conviction pursuant to this statute the prosecution must prove: “(1) that the tools are adapted and designed for breaking and entering; (2) that the defendant possessed them with knowledge of their character; and (3) that he intended to use them for breaking and entering.” People v. Faginkrantz (1960), 21 Ill.2d 75, 79, 171 N.E.2d 5,7.

The defendant argues that he did not have possession of burglary tools at the time of his arrest. He argues further that the kitchen knife found under the vestibule floormat was not in his possession even under the doctrine of constructive possession. Addressing ourselves first to die issue of constructive possession, we find that the case of People v. Richardson (1961), 21 Ill.2d 435, 172 N.E.2d 801, is controlling. In that case a conviction for possession of narcotics was sustained by the testimony of a police officer that he saw the defendant make a motion as if he were throwing something to the ground, and that he found a package of heroin a few feet from where the defendant was standing. It was thought that the defendant threw away the package when he suspected that the police were approaching. In the instant case one police officer saw Spencer put something under the floormat, and the other testified that Spencer appeared to be hiding something under the floormat from under which the knife was immediately retrieved.

But even though we decide that the defendant did have the three knives in his possession, whether actual or constructive, he argues that the prosecution failed to prove he intended to use them for a criminal purpose. (People v. Taranto (1954), 2 Ill.2d 476, 119 N.E.2d 221.) The three knives were not altered in any way to suggest that Spencer had intended to use them for breaking and entering. When on its face it can be said that the knives could be used as easily for an innocent purpose as for an illegal purpose, the question of intent must be the controlling factor in establishing the defendant’s guilt or innocence. (People v. Taylor (1951), 410 Ill. 469, 102 N.E.2d 529.) Therefore, we must examine the record to see if the evidence justifies a finding that the defendant possessed the knives with an intent to use them feloniously. Because this is a case in which criminal intent must of necessity be shown by circumstantial evidence (People v. Archie (1969), 105 Ill.App.2d 211, 245 N.E.2d 59), we are guided in our determination by an examination of other decisions in which the presence or absence of the criminal intent element of the offense of possession of burglary tools was inferred from the circumstances surrounding the possession of the tools.

The prosecution cites People v. Faginkrantz (1960), 21 Ill.2d 75, 171 N.E.2d 5; People v. Esposito (1959), 18 Ill.2d 104, 163 N.E.2d 487; and People v. Taranto (1954), 2 Ill.2d 476, 119 N.E.2d 221, as instances where the court found a criminal intent and affirmed convictions for possession of burglary tools. The relevant facts of each case that the court found persuasive in reaching its decisions are stated in People v. Polenisiak (1962), 26 Ill.2d 317, 186 N.E.2d 271. The defendant relies on People v. Taylor (1951), 410 Ill. 469, 102 N.E.2d 529, and People v. Polenisiak, supra, in which convictions for possession of burglary tools were reversed when the court could not find that the prosecution had proved the element of intent beyond a reasonable doubt. In both Taylor and Polenisiak the defendants had explanations as to why they had the tools at the time and place of arrest, and further they did not resist arrest, attempt to flee, or conceal their identities.

Spencers explanation as to why he was in the vicinity of 7837 South Winchester Avenue was uncontradicted. As to his being able to gain entry to the stairs in the building through the inner door which was ajar, there was no testimony that this door was locked at the time he entered the building. In fact, Mr. Nowicki testified that the inner vestibule door had to be pushed shut in order to lock it. The stipulated testimony of Mrs. Nowicki showed that she left the building in the morning after her husband, but it did not reveal whether the inner vestibule door was shut and locked at that time. There was no indication of forcible entry anywhere in the building to suggest that Spencer entered other than by a door which was ajar. Spencer explained his possession of the two pocket knives. One was for his personal protection; the other he intended to give to his nephew in the Navy. There was no attempt on the part of the defendant to resist arrest, flee or conceal his identity.

We find that the evidence in this case was insufficient to prove that Spencer had the criminal intent required by the statute defining the offense. The conflict between the evidence presented by the prosecution and the uncontradicted testimony of the defendant raises a reasonable doubt which requires reversal. The cause will not be remanded for a new trial inasmuch as it does not appear that the prosecution has any further evidence to produce. (People v. Sheppard (1949), 402 Ill. 347, 83 N.E.2d 587.) Because we have decided to reverse on these grounds, we feel it is unnecessaiy to decide the issue of whether probable cause existed for the defendant’s arrest.

Accordingly, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

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


author: Mr. JUSTICE EGAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronnie Lee Taggart, Defendant-Appellant.
    (No. 56184;
    First District (1st Division)
    February 20, 1973.
    James J. Doherty, Public Defender, of Chicago, (John T. Moran, Jr., Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Anthony R. Shaker, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE EGAN.


author: Mr. JUSTICE ABRAHAMSON

text:
    The Board of Education of District No. 68, Plaintiff-Appellant, v. Green Valley Builders, Incorporated, Defendant-Appellee.
    (No. 71-332;
    Second District
    February 23, 1973.

      Eva Schwartzman, of Libertyville, for appellant.
    Robert B. Cook, of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The Board of Education of District 68, Lake County, brings this appeal from an order entered August 4, 1971 by the Circuit Court of that county granting the motion of the defendant, Green Valley Builders, Inc., for summary judgment and dismissing its second amended complaint.

Tire second amended complaint, filed June 20, 1967, alleges that Green Valley was engaged in the business of constructing single family residences within a subdivision in Lake County known as Cooper’s Countryside Manor. The complaint further alleges that Green Valley offered to donate a tract of land within the subdivision for school or park purposes and to pay to the Board the sum of $200 for each home constructed within the subdivision to be used to defray the costs of building a new school on the tract donated or furnishing bus service from tire subdivision to existing schools. The complaint also states that the Board accepted the offer by holding a referendum on January 21, 1959 wherein the voters of the school district authorized the Board to furnish bus service to the subdivision. The complaint goes on to allege that the Board did, on March 16, 1959, commence to furnish the bus service, although it was not otherwise obligated to do so since the subdivision was within a IVz mile radius of the school, and has continuously furnished the service since that date. Finally, the complaint states that Green Valley constructed 130 homes within the subdivision but failed and refused to pay tire $200 for each home as agreed and asked for judgment in the amount of $26,000. Attached to tire complaint and incorporated in it are three letters wherein, the Board alleges, Green Valley (1) made the offer (by letter dated October 15, 1958); (2) repeated the agreement and sought to include additional conditions (April 1, 1959); and, (3) finally, waived the other conditions and acknowledged full performance by the Board (December 29, 1959).

After its first motion to dismiss was denied, Green Valley filed an answer to the complaint wherein they deny that they ever offered to donate land or monies to the Board and allege that the letters are, at best, evidence of continuing, but ultimately fruitless, negotiations between the parties. As an affirmative defense, Green Valley stated that even if the letter of October 15, 1958 was an offer, the referendum and bus service to the subdivision could not be construed as an acceptance of it. Its motion for summary judgment is based on minutes of a Board meeting held on November 12, 1958, copies of which were filed with the motion and in support of it, which, they assert, clearly indicate that the Board, in fact, rejected the offer of October 15.

In a memorandum of opinion filed by the trial court, it found that “* # o £jje quesyon of the requirements for bus service were entirely separate and apart from any consideration of the written offer of Green Valley Builders.” The court found that there never was a meeting of minds between the parties since the Board never acted on the offer of the builder and, as we have seen, granted summary judgment for the defendant.

Section 57 of the Civil Practice Act provides that a summary judgment should be rendered “* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” (Ill. Rev. Stat. 1971, ch. 110, sec. 57(3).) As has frequently been pointed out, a court should construe the pleadings and other documentation strictly against the moving party and liberally in favor of the opponent in determining if summary judgment should be rendered. (Solone v. Reck, 32 Ill.App.2d 308, 177 N.E.2d 879.) It is a remedy to be awarded with caution so as not to pre-empt the right to fully present the factual basis for a suit where a material dispute may exist. (Ruby v. Wayman, 99 Ill.App.2d 146, 240 N.E.2d 699, 700.) It is with these principles in mind that we have examined the pleadings and attached exhibits in this case.

The letter dated October 15, 1958, is from an attorney representing himself as the attorney of Mr. Ben Cooper and “* * * his subdivision development * * *” to the then attorney for the Board. The letter .states that his client offers to convey the tract of land as a designated trustee and that the Board, within 3 years, could elect to accept the land to be used as the site for a new school. In addition, the letter goes on, the client agrees to deposit with the same trustee $200 for each house upon issuance of a building certificate to be used to help construct a school or defray the costs of bus service to the subdivision. The letter also designated a certain bank in the area to act as trustee.

The letter of April 1, 1959, is from Mr. Ben Cooper, as president of Green Valley, to the Board attorney and was written, so it states, “* * 0 for the purpose of summarizing and confirming our intentions regarding certain payments of funds to that School District.” The letter recites that “In consideration of the rezoning of our land * * * we made certain promises which we are prepared to abide by # * *. It is our express intention, based on certain conditions, to deposit * * *” the $200 for each house with a trustee. The additional conditions contained in this letter related to the dismissal of another lawsuit and the provisions that no other litigation or restraints to the development be instituted.

The letter of December 29, 1959, is also from Mr. Cooper and was sent directly to the Board. It was written * * to confirm the understanding arrived at during our meeting on the Eve of December 23, 1959, * * * for the purpose of summarizing and confirming our intentions regarding certain payment of funds to the School District.” The letter concludes:

“In a previous offer for the payments of funds to the School, made in a letter to your attorney, Willis A. Overholzer, dated April 1, 1959, one of the conditions which we attached to our offer was that free bus service be provided to the children in the Subdivision. It is our understanding that this condition is to be complied with due to a referendum vote approving School Bus Service in the District.
Certain other conditions were also provided for. We are hereby withdrawing all of these other conditions and shall make payments to tire School, free and clear of any and all conditions, to be used by the School for whatever purposes that the School deems proper and necessary to carry on School functions.”

There is nothing in the record to indicate that the Board ever responded in writing to any of these three letters. In its answer, Green Valley alleges that by the nature of the offer, if one was ever made, an affirmative acceptance was required. The minutes of the Board meeting of November 12, 1958, include the following:

“The letter about the Cooper property from Mr. Nelson, attorney for Mr. Cooper to Mr. Overholser was read and discussed. It was decided that this letter did not agree with the previous verbal offer made by Mr. Cooper to the Oak Grove School Board. Copy of letter attached.”

In its answer to certain interrogatories (also filed with the defendant’s motion for summary judgment) the Board admitted that the minutes referred to the letter of October 15.

Although the minutes clearly do not indicate that the Board accepted any offer from Green Valley or its president, neither do they unequivocally indicate that they rejected the proposal. The only comment on the contents of the letter, other than the fact it was “discussed”, is that it differed from a previous “offer” from Mr. Cooper.

We cannot conclude, on the basis of the pleadings and attached exhibits in the record before us, that the defendant was entitled to judgment as a matter of law. It is entirely possible that the evidence will show that the referendum and bus service furnished by the Board had nothing to do with the proposals made by the defendant and that the three letters do not refer to a single agreement between the parties but are three separate efforts by the defendant to effectuate an agreement that never succeeded. However, it is clear from an examination of the record that a material dispute as to these factual issues exists. Accordingly, it was improper for the trial court to render judgment before the parties could submit evidence in regard to those issues and the order must be reversed and the cause remanded for further proceedings.

Reversed and remanded.

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
    MLC Corporation, Inc. et al., Plaintiffs-Appellees, v. Harley E. Cluxton, Jr., et al., Defendants-Appellants.
    (No. 72-79;
    Second District
    March 1, 1973.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, (Lewis D. Clarke, and Lewis D. Clarke, Jr., of counsel,) for appellants.
    Philip S. Aimen, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant Elizabeth P. K. Cluxton only, appeals from a decree of foreclosure and sale of the Circuit Court of Lake County, the denial of her defense of usury set forth in her amended answer, the denial of her post-trial motion to vacate the decree and to assert the defense of discharge, and from the sale held pursuant to the decree of foreclosure.

On January 2, 1970, the defendant was divorced from her husband, Harley E. Cluxton Jr., a/lc/a Dr. Cluxton. She was in sole possession of the marital domicile which she owned jointly with her former husband. Pursuant to her husband’s request, she executed a junior trust deed with her husband to secure a note for $90,000 made by her husband to the plaintiff-appellee, MLC Corporation, Inc. The record indicates her husband only received a loan of $50,000 for the note. At the time of closing the loan, MLC Corporation, Inc. credited itself with an additional $2,500 and also charged Dr. Cluxton with an additional $2,925 insurance. Appellee instituted foreclosure proceedings on September 1, 1970. Appellant appeared and filed an amended answer alleging the defense of usury and claimed a penalty against the plaintiff in an amount equal to twice the total of all interest, discount and charges pursuant to the provisions of Ill. Rev. Stat. 1969, ch. 74, sec. 6. The defendant, Dr. Cluxton, did not appear and answer, having previously filed a voluntary petition in bankruptcy.

On September 3, 1971, the trial court, without hearing but upon the motion of plaintiff and argument of counsel, denied the alleged defense of usury. Subsequent to this in chronological order, the following transpired:

Oct. 22, 1971, decree of foreclosure entered as proved up by affidavit.
Oct. 25, 1971, one Fred Brown purchased the right, title and interest of Dr. Cluxton in the subject property from the federal bankruptcy trustee.
Nov. 19, 1971, Mrs. Cluxton filed post trial motion to vacate the decree of foreclosure and set aside order denying defense of usury.
Dec. 7, 1971, MLC Corporation purchased from the trustee of Dr. Cluxton’s bankruptcy estate, his claim of usury for the sum of $450,
Dec. 10, 1971, Mrs. Cluxton filed an addendum to post trial motion of Nov. 19, 1971.
Dec. 15, 1971, Addendum motion denied by trial court.
Jan. 10, 1972, Subject property sold at foreclosure sale to MLC Corporation.
Mar. 13, 1972, Certificate of sale assigned to Frederic D. Brown.

Our opinion will be confined to whether or not Mrs. Cluxton as surety had the right to interpose the defense of usury.

The record indicates the appellee charged appellant’s husband a discount of about $40,000 in making a loan of $90,000 to him to be repaid by March 18, 1975. Due process requires appellant be granted a hearing to determine if the note in question were usurious. It appears to this court that the interest charged on this loan violates Ill. Rev. Stat. 1969, ch. 74, par. 4, unless it falls within any of the exceptions therein set forth.

The plaintiff, MLC Corporation, Inc. contends that this loan was a business loan to Dr. Cluxton and that Mrs. Cluxton, as surety, could not invoke the defense of usury. No hearing was had, nor was evidence adduced as to this point in the trial court. Tire defendant filed an affidavit which he had executed on the date of his note and trust deed, March 18, 1970, in which he stated to MLC Corporation, Inc. that the loan was:

“* * * solely for tire purpose of carrying on such practice and for no other;”

and

“* # # that I make this affidavit of my own free will and that it is made solely to induce MLC Corporation, Inc. to grant a certain loan to me for business purposes exclusively.”

On March 10, 1970, Melvin E. Levinson, attorney for Dr. Cluxton, wrote MLC Corporation, Inc., enclosed a financial statement of Dr. Cluxton pertaining to a $90,000 loan, and stated that the loan was

“* * * to provide Dr. Cluxton with money to move his offices and set up new facilities at the John Hancock Building.”

However, it appears that at the time the $50,000 was received by Dr. Cluxton and his attorney, in consideration of the trust deed, and the note in the amount of $90,000 executed by Dr. Cluxton only, attorney Melvin E. Levinson furnished Mrs. Cluxton the following statement:

“To Elizabeth K. Cluxton
The undersigned as attorney for Harley K. Cluxton Jr. in consideration for your participation in the acquisition of a loan in the sum of $50,000 (Note: in face sum of $90,000) from M.L.C. Corporation to Harley Cluxton Jr. does hereby stipulate as follows:
1. I have obtained authority from Harley Cluxton Jr. to apply the proceeds of said loan to retire the following indebtedness:
A. National Boulevard Bank — unsecured loan in sum of $2,-500.00.
B. Parkway Bank — secured loan in the sum of $12,000.00.
C. Northern Trust Co. — unsecured loan in the sum of $9,900.00.
D. First National Bank of Lake Forest — unsecured loan in the sum of $12,000.00.
E. Jersild Judgment — in the sum of $10,000.00.
F. Partial payment of the National Boulevard Bank (secured) indebtedness.
The above funds shall be placed in a special account and paid under my supervision.
Melvin E. Levinson”

Further, Mrs. Cluxton contends that Alan R. Edelson, agent of MLC Corporation, Inc., attorney and trustee under aforesaid trust deed, was present at this time, had knowledge of this statement to her and manner in which the proceeds of the loan were to be distributed pursuant to Levinsons statement. Examination of the record before us indicates that Dr. Cluxton did in fact state that the purpose of the loan in question was for business purposes. However, at the time of the pay-out of the $50,000, plaintiffs agent was purportedly advised that the purpose of the loan was to pay existing indebtedness of the parties, pursuant to the statement set forth above. It is to be noted specifically that at least two of the debtors set out in this statement were not in fact paid, as both Jersild and the National Boulevard Bank were made parties defendant in the foreclosure and appeared and set forth their respective claims. No hearing was held on this point by the trial court. This court cannot therefore decide if the interest charged were usurious. The Supreme Court held in Maher v. Lanfrom (1877), 86 Ill. 513, a surety could interpose the defense of usury. See also Safford v. Vail, (1859), 22 Ill. 327.

The general rule is that where the usurious contract of the borrowers and lender is the sole consideration, a surety may avail himself of the defense of usury. We hold the defendant, Mrs. Cluxton as surety, had the right to assert the defense of usury.

The appellees’ motion to dismiss the appeal herein as it applies to the foreclosure sale which was taken with the case is hereby denied.

The foreclosure sale herein is vacated and set aside and the action of the trial court in decreeing the foreclosure and all subsequent matters thereunder are reversed and remanded for further proceeding.

Reversed and remanded with directions.

T. MORAN and ABRAHAMSON, JJ., concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
      In re Petition to Levy a Special Assessment for Construction of Sidewalks—(The Village of Glen Ellyn, Petitioner-Appellee, v. Wayne A. Lami et al., Objectors-Appellants.)
    (No. 71-304;
    Second District
    March 5, 1973.

      Robert A. Cox and Delbert S. Lyle, both of Glen Ellyn, for appellants.
    J. Edgar Kelly, of Glen Ellyn, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff-petitioner, after passing an ordinance for the construction of sidewalks along various streets, petitioned the court for an order levying a special assessment for the costs involved. Defendant-objectors filed objections which the court overruled. There being no stay order entered pending this appeal, the sidewalks were installed.

Defendants urge that the court erred: (1) when it failed to consider evidence on whether the sidewalks were necessaiy and, (2) when it found the sidewalks bestowed a private benefit to their property.

That portion of the sidewalk project here pertinent extends for an approximate three blocks east of Main Street along the north side of Elm Street and there dead-ends at the wall of a subdivision; defendants’ properties are in the easternmost section thereof. At the time of hearing, sidewalks were already installed on the properties adjoining defendants to the west and a walk was proposed for the south side of the street. At trial, it was defendants’ position that there was no general public need for a sidewalk in front of their properties due to the fact that its use would stop (or start) at the subdivision wall and because a sidewalk was already proposed for the south side of the street. It was their further position that no private benefit would inure to their properties and that, for these reasons, the total cost should be borne by the plaintiff.

An initial hearing, in the nature of a pretrial conference, was had between the attorneys for the litigants and the judge. The apparent purpose was to advise the court of the objections raised by the pleadings. When informed that the first objection created an issue of necessity, tire judge expressed a view that the question of necessity was a legislative determination not subject to review by the court. There followed this dialogue:

"Attorney [for defendants]: Now they [plaintiffs] have limited us to one issue, and I think this is improper.
Court: If you have any others, I certainly didn’t mean to shut you off.
Attorney: I certainly do.
Court: I beg your pardon. I thought you were through. I didn’t mean to jump the gun.
Attorney: One of my other objections has been to the public benefit.
Court: That I didn’t know.
Attorney: My other objection has been to the cost of the improvements exceeding the value of them.
Court: That’s fair enough. We will set that down for hearing.”

Ten days later the case was tried. The plaintiff called no witnesses. Defendants introduced the testimony of just one witness, a real estate broker and appraiser who qualified as an expert. It was his opinion that the defendants’ properties would not derive any benefit from the installation of the sidewalk. His opinion was based upon general character of the properties, “the fact they have existed for many years without sidewalks, the need for people to use those sidewalks, and the appearance or the change in esthetics that might occur as a result of the improvement.” The witness than stated that the sidewalk in question would either begin or end at the easterly end of one of the defendants properties, that there were sidewalks either in place or proposed on the south side of the street and that that sidewalk would provide any necessary access to the residents of the area. This concluded the defendants’ proof.

Defendants contend that they were denied their right to introduce evidence on the issue of necessity, bottoming their argument on the trial judge’s view expressed during the initial hearing. While we agree that the judge’s understanding of the law on the subject was incorrect, Village of Glencoe v. Jackson, 102 Ill.App.2d 65, 74 (1968); City of Waukegan v. Drobnick, 61 Ill.App.2d 88, 97 (1965), we do not find it to be grounds for reversing this case.

At the time of the preliminary hearing, defendants were not prepared for trial and requested a continuance. Subsequently, at trial, the evidence introduced by defendants’ expert included testimony, meager as it might have been, which touched upon the necessity of the improvement. No objection was made to the inclusion of such evidence. Further, the judge’s earlier-expressed view did not preclude defendants from calling other witnesses on this issue. In the event testimony of such other witnesses had been prevented, defendants could have made an offer of proof. This is not a case where the judge’s attitude can be said to make such an offer unnecessary. Miller v. Chicago Transit Authority, 78 Ill.App.2d 375, 379-381 (1966).

On this issue, however, there remains the question of whether the testimony of defendants’ expert, that the sidewalk was not necessary, was sufficient to overcome the plaintiff’s ordinance declaring the sidewalk necessary. The necessity of a local improvement is a legislative determination expressed by ordinance and is presumed valid unless found unreasonable. The presumption will not be overturned upon the mere opinion of witnesses that the improvement is unnecessary. The evidence must be clear that the legislative determination is unreasonable before the court will interfere. (City of Ottawa v. Colwell, 260 Ill. 548, 553 (1913); Village of Millstadt v. Bereitschaft, 344 Ill. 550, 554 (1931); Village of Glencoe v. Jackson, supra.) We find that the proof herein was insufficient to overcome the presumption of necessity created by the plaintiff’s ordinance.

Defendants claim, that no private benefit accrued to their properties, is without foundation in the evidence. (Plaintiff’s share of the total cost was approximately thirty-eight percent.) The assessment roll filed by the plaintiff herein is prima facie evidence that defendants’ properties benefited to the extent shown thereby. (City of Chicago v. Marsh, 250 Ill. 512, 514 (1911).) To overcome the prima facie case made by the introduction of this roll, the defendants must show the fair cash market value of the property before and after the improvement. (Village of Marissa v. Jones, 327 Ill. 180, 192-193 (1927).) This was not done. Defendants only evidence on this point was the conclusionary statement of their expert that the sidewalk would be of no benefit. The law is that a reviewing court will not disturb a finding on the question of benefits unless it is clearly and palpably against the manifest weight of the evidence. (Village of Marissa v. Jones, supra, at 193 and City of Chicago v. Marsh, supra, at 514.) Defendants have not met this criteria.

For the reasons stated, the judgment will be affirmed.

Judgment affirmed.

SEIDENFELD, P. J., and ABRAHAMSON, J., concur.

       We question whether the statement, to which there was no objection, was admissible. See, Village of Marissa v. Jones, supra, 192.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Jordan/Tamraz/Caruso/Advertising, Inc., Plaintiff-Appellant, v. Parker Career Center et al., Defendants-Appellees.
    (No. 56813;
    First District (3rd Division)
    February 15, 1973.
    Russell G. Miller, of Chicago, for appellant.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, Jordan/Tamraz/Caruso/Advertising, Inc., performed advertising services for the defendant, Parker Career Center, an employment agency in the Golf Mill Shopping Center, Niles. The defendant, Jack Scannell, operated the agency. Bills for the services were not paid and this action was commenced. The defendants filed no answer to the plaintiffs complaint but, nevertheless, appeared for trial. In their opening statement they informed the court that Scannell operated his business as president of a corporation, Scanco, Ltd., and that the obligations sought to be enforced were not those of Scannell or Parker Career. Following the presentation of the plaintiff’s case in which the existence of the debts was established, as well as plaintiff’s lack of knowledge of the alleged corporation, the defendants moved to dismiss the action. They again urged that Scannell had acted only in his capacity as a corporate official. The trial judge granted the defendants’ motion.

The defendants have not contested the plaintiff’s appeal. If an appellee does not file an answering brief, a court of review may reverse the judgment or order without considering the merits of the appeal. (Ridge Manor Convalescent Home v. The City of Chicago (1972), 4 Ill.App.3d 1077, 283 N.E.2d 272; Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42.) On the other hand, the court may in its discretion examine the record to determine whether the appellant is entitled to reversal or if an injustice would be done an appellee by summary reversal. Woodward v. Woodward (1968), 96 Ill.App.2d 251, 238 N.E.2d 269; Matyskiel v. Bernat (1967), 85 Ill.App.2d 175, 228 N.E.2d 746.

The defendants presented no evidence whatsoever to support their assertion that Scannell’s employment agency was a corporation or that there was a corporation by the name of Scanco, Ltd. The plaintiff’s president, Paul D. Tamraz, testified that he had not heard of Scanco Ltd., prior to the trial, and that Scannell never held himself out as a corporate officer. Tamraz had had business dealings with Scannell before he started to operate Parker Career Center, and all arrangements for Parker’s advertising were authorized by Scannell and all advertisements were approved by him. Also, some of the bills for the plaintiff’s services presented to Parker were paid.

In ruling on a motion to dismiss at the close of the plaintiff’s case, the evidence presented together with all reasonable inferences must be considered in the light most favorable to the plaintiff, and if there is any substantial evidence tending to prove the plaintiff’s allegations, the motion must be denied. City of West Frankfort v. Fullop (1955), 6 Ill.2d 609, 129 N.E.2d 682; Russow v. Bobola (1972), 2 Ill.App.3d 837, 277 N.E.2d 769.

The plaintiff produced evidence that a debt for services rendered was owed to it by the defendants; there was no contrary evidence and the motion to dismiss should have been denied. The order of dismissal is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

McNAMARA and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenny McCarroll, Defendant-Appellant.
    (Nos. 57079-80;
    First District (3rd Division)
    February 15, 1973.

      Michael P. Toomin, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State’s Attorney, of Chicago, (Mark T. Zubor, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

A jury found the defendant, Kenny McCarroll, guilty of deviate sexual assault. (Ill. Rev. Stat. 1965, ch. 38, par. 11 — 3.) His motion for a new trial was denied and he was sentenced to the penitentiary for a term of five to seven years.

An appeal was taken to the Supreme Court. During the pendency of the appeal, McCarroll filed a post-conviction petition which was dismissed without an evidentiary hearing. The dismissal was also appealed. The two appeals were consolidated and transferred to our court.

The complainant, a college student, was walking home from a bus stop on an early evening in November 1967. Two blocks from her home she noticed a tall black man standing in a gangway two or three feet from the sidewalk; he was wearing a blue jacket and a knit hat. Shortly after-wards, she was attacked from behind; the assailant covered her mouth, put a knife at her throat and demanded her money. From there, about six feet from a street light, the man dragged her into a back yard which was illuminated by a bright alley light several houses away. After tying her hands behind her back with one of her stockings and putting a rag in her mouth, the assailant removed her undergarments, spread her legs apart and put his mouth to her vulva.

Twenty minutes later he tied her feet together and left. He came back with an automobile and lifted her into the trunk. There were holes in the trunk and she saw street lights and signs as she was transported to a brightly lit garage. While she was still in the luggage compartment, he covered her face with masking tape. He then placed her on the garage floor and, despite the fact that she was menstruating, performed another cunnilingus act.

The assailant said he was going to take pictures of her. He posed her lower body and legs in various positions, and she heard the clicks of a camera. She also heard a phone ringing in the garage. They remained in the garage about 25 minutes. He became concerned because her shoes had been left in the yard and was afraid someone would find them. He placed her in the back seat of the auto, drove to the area of the first assault, walked her to an alley and told her to wait. He returned with her shoes, books and purse.

He removed the tape from her face, told her to keep her eyes closed, thanked her for her trouble, tried to give her a five-dollar bill and left after saying that he would see that she got home safely. As she ran home, she noticed a blue Chevrolet — the car used in the abduction — drive by. The police responded to her telephone call and she described her assailant as a tall, Negro man, about five feet ten inches to six feet in height, weighing about 180 pounds, and wearing a blue coat and knit hat. She described the automobile as an old, 1953 to 1956, blue Chevrolet with holes cut out of the rear deck near the trunk.

Twelve days after the abduction, a police officer who was patrolling in a blue and white squad car, received information about a man sitting in a 1956 Chevrolet in the area of the crime. He broadcast the information over his radio. When he arrived in the vicinity he saw McCarroll, who fit the complainant’s description, walking on a sidewalk. He parked his car and got out. McCarroll saw the squad car and the uniformed officer and started to run. The officer chased him. McCarroll ran three-quarters of a block, turned into a gangway, ran down an alley into another gangway and disappeared from the pursuing officer’s view. The officer saw him again some 20 minutes later at a police station.

McCarroll had been arrested in his automobile while it was stopped for a traffic signal. The arresting officers, who were aware of the complainant’s descriptions of her assailant and his car, responded to the radio message; they drove to the neighborhood, saw the auto which matched the description and, with their guns drawn, ordered the driver’ to get out. A bone-handled, razor type knife was found in his pocket. An officer who drove McCarroll’s auto to the police station noticed a picture of a partially nude woman above the visor. At the station, McCarroll denied committing the offense but when he was confronted with the picture he confessed. The complainant was called to the station and she picked him out of a three-man lineup. In the meantime, officers had been sent to search a garage to which he had a key. They returned with a camera, which he said was his, and three more pictures. After the lineup the complainant was shown the pictures. She did not recognize the one found in the auto but she did the three recovered from the garage. The pictures did not include facial views but she was able to identify herself from the lining of her coat which was visible in the pictures and from the string of a menstrual absorbent which protruded from the vagina of the exposed woman.

Prior to trial, a hearing was held on the defendant’s motion to suppress the articles taken from his person, auto and garage, and to suppress his oral admissions of guilt. It was contended in his written motion that his statements and the seizure of his property were the consequences of an invalid arrest and illegal detention. It was contended orally during the hearing that he had not been adequately informed of his constitutional rights and that his confession had been induced by fear and police brutality. The officers who participated in his chase and arrest and those who were present at his confession, denied his contentions and testified as to what was done and said. The motion was denied.

At the trial the complainant identified McCarroll as the man who attacked her. She testified that when she first saw him in the gangway she observed his face but did not notice anything particular about it. She raised her head and glanced at his face several times while the cunnilingus took place in the back yard. She saw it again when he removed the tape from her eyes. She was adamant that the lighting conditions were adequate for her to see his face and she was positive he was her assailant. The police related the circumstances of his arrest and their conversations with him. The knife taken from his person, pictures of his auto, the three pictures and the camera found in the garage, and tire complainant’s coat were received in evidence. McCarroll denied the offense. He testified he had two jobs one of which was repairing automobiles in another garage and that he was working there the evening of the crime. The owner of the garage and a customer corroborated his whereabouts. The defendant’s wife and a friend testified they telephoned him at the garage several times that evening.

The defendant contends on appeal that: (1) his guilt was not established beyond a reasonable doubt; (2) articles taken from his person and his automobile, his admissions of guilt and his identification were the products of an illegal arrest; (3) the identification procedures used by the police were suggestive and tainted his in-court identification; (4) evidence seized without a search warrant from his garage should have been suppressed; (5) he was denied due process of law by the suppression of favorable evidence and (6), his constitutional right to confront witnesses was abridged by the State’s refusal to produce a prior statement of the complaining witness which contradicted her trial testimony.

The defendant’s brief makes no distinction between the appeal from his conviction and the appeal from the dismissal of his post-conviction petition. Issues properly related to one are argued interchangeably with issues germane to the other. Furthermore, an issue is argued which was not raised either at the trial or in the petition, and an item of evidence extraneous to the trial record is advanced as a factor to be considered in determining guilt or innocence. We reject the defendant’s thesis that in a consolidated appeal such as this, trial and post-conviction issues can be indiscriminately commingled and that issues neither preserved at the trial nor raised in the petition can be intertwined with those that were.. We will, therefore, consider the appeals separately (as was done in People v. Moore (1969), 42 Ill.2d 73, 246 N.E.2d 299), and will start with the direct appeal.

In a direct appeal review is limited to what appears in the trial' record. (People v. Jackson (1963), 28 Ill.2d 37, 190 N.E.2d 823.) In this appeal the issues are further restricted to those presented by the defendant in his written motion for a new trial. (People v. Landry (1970), 123 Ill.App.2d 86, 259 N.E.2d 604.) The defendant was ably represented before and during his trial by a privately retained attorney who filed in his behalf a motion for a new trial. The principal points made in the motion were that the defendant was not proved guilty beyond a reasonable doubt and that his statements and admissions should not have been received in evidence because they were obtained in violation of his constitutional rights as set forth in the Miranda and Escobedo cases. Miranda v. Arizona (1966), 384 U.S. 436; Escobedo v. Illinois (1964), 378 U.S. 478, The latter point is not repeated in this appeal. Instead, it is again contended, as it was in the motion to suppress, that his statements and admissions of guilt were erroneously received in evidence because they were the products of an illegal arrest. This contention was not included in the motion for a new trial nor, likewise, were the corollary contentions that the articles taken from his person and auto and his in-court identification should have been denied admission into evidence because they too were the products of an invalid arrest.

Two of the issues attempted to be argued on appeal — the alleged suggestive identification procedures and the search of the garage without a warrant — were not presented to the trial court at any time or in any form. The others were resolved adversely to the defendant. Those which were presented were decided correctly; those which were not presented were waived. All the issues are constitutionally premised, but a thorough examination of the full record discloses that the defendants rights were not abridged by any of the alleged constitutional violations. We find no reason, therefore, to take notice of the issues as substantial errors prejudicially affecting the rights of the accused. Ill. Rev. Stat. 1967, ch. 110A, par. 615(a).

When a written motion for a new trial is presented to the trial court, the extent of review on appeal is restricted to the issues set out in the motion and all the others are regarded as waived. (People v. Irwin (1965), 32 Ill.2d 441, 207 N.E.2d 76; People v. Garner (1972), 6 Ill.App.3d 1, 284 N.E.2d 440.) Thus, for the purpose of the direct appeal we will limit our consideration to the one issue in the defendants motion for a new trial that is properly before this court: whether his guilt was proven beyond a reasonable doubt.

This case does not, as the defendant suggested in the trial court, rest upon circumstantial evidence and it does not, as the defendant suggests in this court, rest upon identification. Nor does it depend, as the defendant strenuously argues, upon the weighing of a questionable identification against a solid alibi. The complainant’s firm identification was but one factor in the trial. The other evidence introduced by the State cannot be overlooked: McCarrolI’s presence at the same hour and in the same neighborhood 12 days after the assault occurred; his flight when a policeman approached him; his physical characteristics which conformed to the complainant’s description; his ownership of an automobile which matched the complainant’s detailed description in color, make, vintage and unusual apertures; the identity of the clothing the complainant described and what he was wearing at the time of his arrest; the similarity the distinctive knife tire complainant saw at her throat and the one recovered from his pocket; his possession of a .key to the garage and of a bill made out in his name for a telephone at the address of the garage; the telephone there which corroborated the complainant’s testimony that she heard one ringing; the camera there which corroborated her testimony that she had heard one clicking, and her pictures in the postures she said McCarroll arranged, found in the garage. This assemblage of incriminating circumstances was itself more than adequate to sustain the jury’s verdict. When combined with the complainant’s unwavering identification and the defendant’s oral confession, the total proof overwhelmingly established the defendant’s guilt. Insofar as the direct appeal is concerned, his conviction is affirmed.

We now turn to the second aspect of this opinion — the appeal from the dismissal of the defendant’s post-conviction petition. The petition, in the main, represents an attempt to litigate issues which were not raised in the trial court or to relitigate those which were raised but not preserved in the motion for a new trial. Further judicial inquiry into these issues has been precluded by our decision in the direct appeal. Where an appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been raised but were not are deemed waived. (People v. French (1970), 46 Ill.2d 104, 262 N.E.2d 901.) Although the waiver rule may be relaxed in instances when fundamental fairness requires (People v. Hamby (1968) 39 Ill.2d 290, 235 N.E.2d 572), we see no reason to do so in this case. The purpose of a post-conviction proceeding is not to determine a defendant’s guilt or innocence, but is a new proceeding to inquire into the constitutional phases of his conviction which have not been adjudicated. People v. Ashley (1966), 34 Ill.2d 402, 216 N.E.2d 126.

The only issue of constitutional dimension which has not been adjudicated is the charge made in the post-conviction petition that the State suppressed material evidence favorable to the defendant by concealing the first description of him given by the complainant, the name of the officer to whom she gave the description and the officer’s report containing the description.

Two policemen responded to the complainant’s telephone call following her assault. The first to arrive at her home was James Wadlington, the second James O’Brien. Wadlington talked with her and left. He made a written report of the descriptions he received of her assailant and his car. He had nothing further to do with the case and his name did not appear on the list of the State’s witnesses. Although he was summoned to the courtroom during the trial the State did not use him as a witness because he told the prosecutor that the report was not his. Officer O’Brien received more detailed descriptions from the complainant but filed no written report. O’Brien was the officer who chased the defendant on the night he was arrested. His name was listed among the State’s witnesses and, as we have seen, he testified at the hearing on the motion to suppress and at the trial.

A rape had taken place in the vicinity of the complainant’s home the night before she was assaulted. The defendant was indicted for both offenses. The rape case came to trial 11 months after his conviction in the assault case. Wadlington, called as a defense witness, testified at a preliminary hearing on a motion to suppress evidence. He identified the report and acknowledged that he had written and signed it. The report was on a form composed of a grid with small boxes for the entry of pertinent information and a large space for a narrative description of the crime. The insertions in the boxes gave the offender’s sex as M, his race as N and his age as 18-25. Tire boxes pertaining to the offender’s vehicle bore the follow notations: 1954; chev.; blue; license number, unknown; other identifying marks, unknown. The officer concluded the narrative portion of his report with this sentence, “[The complainant] could not give a discription [sic] of this man other than he [sic] male Negro.”

Wadlington’s report was attached to the post-conviction petition. Also attached as exhibits were a transcript of a portion of O’Brien’s testimony in the assault trial relating to the descriptions he had received from the complainant, and the list of State witnesses given to the defense in the assault case showing the omission of Wadlington’s name.

It was contended in the post-conviction petition, at the hearing on the petition and is argued in this court that the differences between Wadlington’s written report of the complainant’s descriptions and her testimony and O’Brien’s concerning them, would have discredited her testimony and O’Brien’s, and would have undermined the basis of probable cause for the defendant’s arrest. The differences are these: Wadlington’s report listed the offender as a male Negro, 18 to 25 years old, and stated that the complainant was unable to describe him further. The complainant testified that her assailant was a black man, 5T0" or 6' tall, wearing a blue coat and a knit hat and that she gave this description to the police. O’Brien testified that this was the description he received from her and was the one transmitted to all the officers in the police district. Wadlington’s report listed tire offender’s auto as a 1954, blue Chevrolet with other identifying marks unknown to the complainant. The complainant testified that the assailant’s auto was a 1953 to 1956, blue Chevrolet, with holes in the rear deck, and that this was the description she gave the police. O’Brien testified that this was the description he received from her and the arresting officers said this was the description they acted upon when they approached the defendant’s auto and placed him under arrest.

If Wadlington’s name had been on the State’s list of witnesses, the defense might have learned of his report; if the defense had been alerted to the report or if the State had disclosed it, it could have been used for impeachment purposes in the cross-examination of the complainant and O’Brien. In its motion to dismiss the post-conviction petition, the State conceded that the non-disclosure of the report was error, but argued that it was harmless error.

The proper focus at a hearing upon the State’s motion to dismiss a post-conviction petition is the sufficiency of the petitions allegations and supporting documents. (People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83.) When the claim of a substantial denial of a constitutional right is based on assertions beyond the record, it is contemplated by tire Post-Conviction Hearing Act that evidence be taken. (People v. Williams (1970), 47 Ill.2d 1, 264 N.E.2d 697.) The facts alleged in the instant petition and the inferences flowing from them would normally have required an evidentiary hearing, had not all the necessary information been supplied by the exhibits attached to the petition. The judge who conducted the post-conviction hearing had presided at the trial and had heard the motion to suppress. He read the exhibits and properly consulted his trial notes and the report of proceedings. (People v. Morris (1969), 43 Ill.2d 124, 251 N.E.2d 202.) An evidentiary hearing would have added no significant information. He had sufficient evidence before him to accurately determine whether the Wadlington report would have affected his ruling upon the validity of the defendant’s arrest and upon the consequential issues concerning the admissibility of the defendant’s statements and the seizure of his property. The judge also was in a position to evaluate the possible effectiveness of the report as an instrument of impeachment at the trial. He did not err in failing to conduct an evidentiary hearing or in dismissing the petition. In our opinion, the Wadlington report, even if used to its maximum effectiveness, would not have influenced the jury’s verdict. The failure to furnish the report to the defendant if error, was, beyond a reasonable doubt, harmless error which did not contribute to the finding of guilty. Chapman v. California, 386 U.S. 18.

The testimony at the suppression hearing and at the trial established rather conclusively that the complainant, when interviewed by the police, gave definite descriptions of the assailant and his automobile and that both of these were more detailed than Wadlington reported. The combination of tírese descriptions and the similarity of the defendant and his auto afforded probable cause for his arrest. There is no doubt of the identity of the defendant and the proof of his guilt is beyond question.

The judgment of conviction and the order dismissing the post-conviction petition are affirmed.

Judgment in the direct appeal affirmed.

Judgment in the post-conviction appeal affirmed.

McNAMARA and McGLOON, JJ., concur.