author: MR. JUSTICE BRYANT

text:
    Herbert M. Stein, et al., Plaintiffs, v. Yarnall-Todd Chevrolet, Inc., a Corporation, and Claude Woolf, Defendants. Herbert M. Stein, et al., Plaintiffs-Appellants, v. Yarnall-Todd Chevrolet, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 51,348.
    First District, Second Division.
    July 14, 1967.

      Clausen, Hirsh, Miller & Gorman, of Chicago (James T. Ferrini and Jacob T. Pincus, of counsel), for appellants.
    Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Durmont W. McGraw and George W. Hamman, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County granting defendant’s motions for summary judgment, and to dismiss. This action arose out of a fire in a building which is owned by the plaintiffs and is leased to the defendant. On January 23, 1964, defendant’s employee was operating an oxyacetylene torch in defendant’s automobile repair shop. A fire resulted which plaintiffs alleged in their amended complaint was the result of the negligence of defendant’s employee and of the defendant, Yarnall-Todd Chevrolet, Inc.

Plaintiffs’ theory is that the damage to the premises was the result of the defendant-lessee’s negligence and that the lease under which defendant occupied the premises did not exculpate defendant from liability for loss caused by, or through its negligence. The basic issue facing this court is whether the trial court was correct in construing the lease to exonerate the defendant.

The relevant provisions of the lease involved here are as follows:

“5. ... At the termination of this lease by lapse of time or otherwise, lessee shall return the premises and all leasehold improvements and fixtures therein in as good condition as when lessee took possession, ordinary wear and tear or damage by fire or other casualty beyond lessee’s control excepted, ....
“7. ... In addition to all other liabilities for breach of any provision of this Section 7, lessee shall pay to lessors an amount equal to the increased cost of any insurance coverage resulting from lessee’s act or neglect and all damages sustained by lessors as a consequence thereof. . . .
“8. . . .
“Notwithstanding the provisions of this paragraph 8, lessors shall, upon receipt of written request from lessee, at their own expense, make all repairs to the foundations, exterior walls, roof and supporting members of the present brick building located on the demised premises when such repairs are made necessary by ordinary wear and tear, it being expressly understood, however, that there shall be no obligation of the lessors to make repairs to the foundations, exterior walls, roof or supporting members of the present brick building when the damage requiring such repairs is caused by lessee or its customers or other persons in connection with lessee’s business.
“9. ... If it (the building) shall be partially damaged by fire or other casualty without the fault or neglect of lessee it shall be repaired, restored or rehabilitated by and at the expense of lessors, and rent, until the untenantable portion is ready for occupancy by lessee, shall be apportioned according to the part which is usable by lessee, . . . .”

Defendant Yarnall-Todd Chevrolet, Inc. cites Cerny-Pickas & Co. v. C. R. Jahn Co., 7 Ill2d 393, 131 NE2d 100, as controlling authority for the proposition that the lease involved here exonerated defendant from liability for occurrences such as the one which caused the damage to the building owned by plaintiffs and occupied by the defendant. In that case the Illinois Supreme Court was faced with the question whether the provisions of a lease exculpated the lessee from liability of loss caused by the negligence of the lessee. The relevant sections of that lease are as follows, Cerny-Pickas & Co. v. C. R. Jahn Co., supra, at p 395:

“2. . . . Lessee will keep said premises, including all appurtenances, in good repair, . . . ; and upon the termination of this lease, in any way, will yield up said premises to Lessor in good condition and repair (loss by fire and ordinary wear excepted) .... (Emphasis added.)
“8. Lessor shall not be obliged to incur any expense for repairing any improvements upon said demised premises or connected therewith save as in this clause provided, and the Lessee at his own expense will keep all improvements otherwise in good repair (injury by fire, or other causes beyond Lessees control excepted) .... (Emphasis added.)
“14. Lessor shall pay for fire insurance on the building and equipment and machinery hereby leased, and Lessee agrees to pay for any increase in fire insurance premium on such insurance policies, due to any increase in the insurance rate due to the nature of Lessee’s business, or the manner of its conduct of the business.”

In holding that the lease should be construed to exonerate the lessee from liability, the court paid particular attention to Section 2 of the lease where it was provided that the lessee was to “yield up said premises to lessor in good condition and repair (loss by fire and ordinary wear excepted).” In regard to this section the court said, at pp 396, 397:

“In the absence of any contrary expression in the lease, the lessee is not liable to the lessor for damages to the premises from fire which is not the result of his own negligence. (Tiffany, Landlord and Tenant, sec 111.) Therefore, unless this clause of the lease exempts the lessee from liability for loss by fire resulting from his own negligence, it does no more than restate the lessee’s common-law obligation.”

It is obvious that the court interpreted that section in the way that it did so as to give the section meaning. We are not faced with that problem in this case. The yield-back provision in the lease under consideration provides that the lessee return the premises in as good condition as when the lessee took possession, “ordinary wear and tear or damage by fire or other casualty beyond lessee’s control excepted.” The plain and obvious meaning of this section is that the lessee would continue to be liable for damages to the premises caused by its negligence or the negligence of its employees. Defendant contends that Section 8 of the lease in Cerny-Pickas is identical to the language we have just quoted from the lease in this case. While this is true we do not find the argument persuasive for the reasons that the two sections do not concern themselves with the same subject matter and that the court failed to consider or take notice of the language in Section 8 in its opinion.

Moreover, exculpatory clauses are to be strictly construed against the party they benefit. Jackson v. First Nat. Bank of Lake Forest, 415 Ill 453, 114 NE2d 721; Valentin v. D. G. Swanson & Co., 25 Ill App2d 285, 167 NE2d 14. Beyond what we consider to be the clear meaning of the yield-back clause, the lease also contains other language which we feel supports the view that the intention of the parties was that the lessee should be responsible for damages to the premises caused by its negligence or the negligence of its employees. In Section 8 it is provided that the burden for making repairs when they are necessitated by the actions of the lessee are to fall upon it. And in Section 9, the lease provides that where the building is damaged by fire which is not the fault of the lessee, the lessor is to repair and restore the premises at the expense of the lessor. We feel that the logical inference to be drawn from this section is in accord with the provisions of Section 5 of the lease, the yield-back clause, namely that the lessee is to be responsible for damages caused by its actions or neglect.

In Cerny-Pickas & Co. v. C. R. Jahn Co., supra, the court also placed reliance on the fact that the lease in that case required the lessor to carry fire insurance on the property. The court construed this section when viewed in conjunction with the yield-back section of that lease (Section 2) to mean that the lessor should look solely to fire insurance, and not to the lessee for reimbursement of fire damage caused by the lessee’s negligence. In contrast, the instrument here under consideration does not oblige the lessor to provide fire insurance, but merely provides that the lessee is to pay to the lessors any amount equal to the increase in the cost of any insurance coverage resulting from lessee’s activities. In our opinion this section merely recognizes the right of each party to insure their interest. We have read the recent opinion in Belden Mfg. Co. v. Chicago Threaded Fasteners, 84 Ill App2d 336, 228 NE2d 532, which discusses the Cerny-Pickas case. We are of the opinion that the opinion in the Belden case is not applicable to the factual situation presented in the case at bar.

Taking the instrument as a whole it is our opinion that the parties did not intend to exculpate the lessee for fire damage caused by negligence of lessee.

For that reason the judgment of the trial court is reversed and the cause is remanded with directions to deny defendant’s motion to dismiss, that defendant answer and for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded with directions to deny defendant’s motion to dismiss, that defendant answer and for other proceedings not inconsistent with this opinion.

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


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Thomas, et al., Defendants-Appellants.
    Gen. Nos. 50,647 and 50,649.
    First District, First Division.
    July 17, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (David Dillner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal by the defendants from a conviction of the crime of attempted robbery. The jury found them guilty as charged by the indictment. They were sentenced to not less than three, nor more than 12 years, in the Illinois State Penitentiary. They contend that they did not receive a fair trial and were not proven guilty beyond all reasonable doubt of attempted robbery.

Three officers were stationed in different parts of a parking lot. A fourth officer, John Tyrell drove his car and parked in the center of the lot. As he got out of his car the two defendants and a LeRoy Miles approached him from behind a truck also parked at this lot. Miles broke from the group and ran toward Tyrell with a pistol in his hand. He uttered an obscene remark at Tyrell, ending with the words “it’s a stickup.” Officer Tyrell announced he was a police officer and ordered Miles to drop his gun. Miles fired and Tyrell returned the fire, striking Miles. The two defendants ran behind the truck. As Miles fell he fired again and officer Tyrell again returned the fire, killing Miles. The defendants ran out of the parking lot. One of the three officers, Ronald Pluta was armed with a .12 gauge shotgun and ran after them. The defendants split up and ran in opposite directions. Pluta yelled “Police” at Thomas, whom he recognized, and fired two times, hitting him in the leg. Thomas escaped from the alley but the police went to his home where they found him with a gunshot wound in the leg. Thomas was taken to Cook County Hospital. He was operated on and then removed to Bridewell Hospital.

Price also escaped from the alley. The following day he went to see Miles’ family and to help arrange for the funeral. Price and several members of the family drove to the store to purchase some food. The driver of the car did not have a license and the entire group was arrested and taken to the police station. At first one of Miles’ brothers was accused of being in the alley with Miles. Price was then identified by one of the officers who had been in the alley.

The defendants point to four places in the record where the trial judge made allegedly prejudicial comments. The first such instance was when the judge stated: “All he (the police officer) has to do is to appreciate that there was sufficient light for him to identify somebody.” The judge then turned to the officer on the witness stand and asked, “Now was there a sufficient light for you to identify anybody?” Answer, “Yes.”

We do not find the above remark prejudicial. It was merely made to clarify the record and relieve the confusion caused by the State’s attorney and defense counsel on the question of the ability of the officer to identify the defendants.

The second alleged prejudicial error occurred during cross-examination of one of the officers. The following colloquy occurred:

Defense question: Who fired the first shot?
The Court: Do you want to object?
Defense: For what ?
The Court: There has been substantial testimony here that the deceased, Miles, fired at least the first shot.
Defense: Judge, are you now testifying for this witness ?
No, I am not, but I don’t see how far we are going afield. If you want to find out exactly who was guilty of the first provocation, ask him that. The Court:
Judge, I am trying to find out how much time the two boys that were supposedly there stood there after shots were fired and guessing on what to do. Defense:
That is the two boys that are here ? Has your Honor determined that these two boys were there? The Court: Defense:
I am just trying to say there is one man dead and there is two survivors. The Court:

In considering the claim of prejudice with regard to this alleged error, we note that the preceding testimony positively established that the two defendants were present in the alley. The trial judge was merely attempting to ascertain the direction in which the defense counsel was going with his questions.

The third claim of error occurred when the defense counsel made the following improper remark upon learning that the police officers were stationed in the 11th District: “Is that the famous or should I say infamous Fillmore District?” The trial judge then commented: “It may be an infamous district, but it is only because of the fact of the people that live there, I suppose.” This comment was the direct result of the defense counsel’s improper conduct in quipping with the officer. Where the defense deliberately baits the judge into making what would otherwise be a prejudicial remark, we will not consider it as prejudicial error. People v. Smith, 63 Ill App2d 369, 377, 211 NE2d 456, cert den 383 US 953.

The last claim of error occurred during the cross-examination of defendant Thomas. Thomas claimed that he had stopped in the alley to have a drink from a bottle of wine he had purchased. He heard Miles run past him and when the shooting started, he ran out of the alley but was hit by a shot. The judge then asked Thomas why he went into the alley to drink wine. The judge said: “I can see why a lot of people drink on Election Day but not in the alleys.” We find that this remark was harmless error. The jury was properly instructed that they were the sole judges of the credibility of the witnesses, the weight to be given their testimony and the facts of the case. Although this remark may have been improper, it was cured by the instructions given the jury and in our opinion did not deny the defendants a fair trial.

Defendants further contend that the State failed to prove them guilty of attempted robbery. The two defendants and the deceased Miles entered the parking lot. Two of them were armed. All three approached officer Tyrell indicating an intention to rob. The deceased Miles then ran toward officer Tyrell with a pistol in his hand, after addressing the officer said “. . . it’s a stickup.” A specific demand for money or other property is not necessary to prove an intent to rob. The three acted as a group. The fact that officer Tyrell interrupted their efforts in no way indicates that they did not intend to commit the act. The defendants knew one another, they were seen in the company of the decedent, and the defendant Price was a friend of the deceased Miles and was arrested in the company of the Miles family.

We are satisfied that the evidence established the defendants’ guilt beyond a reasonable doubt and that the defendants were given a fair trial. Therefore the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Mamolella, Defendant-Appellant.
    Gen. No. M-51,318.
    First District, First Division.
    July 17, 1967.
    Harry R. Booth, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert Karton, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals from a conviction for gambling in violation of section 28-1 (a) (2) of the Criminal Code (Ill Rev Stats 1965, c 38, § 28-1 (a) (2)). He had waived his right to trial by jury and was found guilty by a Magistrate and fined $50.

A police officer from the gambling unit obtained a search warrant for the premises at 3001 South Kedzie Avenue, Chicago, Illinois, an auto parts store owned by the defendant. The officer found several scratch sheets, three in the front of the store, one in the back and two in defendant’s pocket. Defendant denied the scratch sheets were his and said he just picked them up and put them in his pocket.

While the officer was on the premises, the telephone rang. Some of the callers ordered auto parts, but other callers placed bets on horses. Defendant denied having knowledge of the calls placing bets and ever accepting a bet.

Defendant’s first contention is that the complaint was insufficient. Initially defendant was charged with violation of section 28-1 (a) (5), which involved the recording and registering of bets. A conviction under this section may constitute a felony. (Ill Rev Stats 1965, c 38, § 28-1 (c).) At the commencement of the trial, the State’s Attorney asked leave to amend the complaint on its face by reducing the charge to a misdemeanor and charging the defendant with a violation of section 28-1 (a) (2), “makes a wager upon the result of any game, contest, or any political nomination, appointment or election . . . .” The court informed defendant and his counsel of the change in the complaint. Counsel raised no objection. Defendant then waived a jury and entered his plea of “Not guilty.” The complaint, as amended, was sufficient to apprise the defendant of the charge against him and fully enable him to prepare his defense. People v. Laczny, 63 Ill App2d 324, 211 NE2d 438 (1965). It complies with section 111-3 in that it states the name of the offense, cites the statutory provision, sets forth the elements of the offense, states the time and place of the offense and the name of the accused. (Ill Rev Stats 1965, c 38, § 111-3.)

Defendant next contends that the evidence is insufficient to support the finding of guilty. We do not agree. Defendant was charged with wagering. The police officer found scratch sheets containing names and bets in the defendant’s store and on his person. When answering defendant’s telephone several persons placed bets. This is clearly sufficient to show that defendant was engaged in wagering with other persons as charged in the amended complaint.

Defendant’s final contention is that the statute, under which he was convicted, is unconstitutional. The State contends that defendant has no standing to question the constitutionality of the statute for the reason that he did not raise this point at any time in the trial court. It has long been the position of our courts that constitutional questions not presented to and ruled on by the trial court will not be considered on review. People v. Rohde, 403 Ill 41, 85 NE2d 24 (1949), cert den 338 US 833; People v. Hale, 31 Ill2d 200, 201 NE2d 454 (1964); People v. Orr, 10 Ill2d 95, 139 NE2d 212 (1956), cert den 353 US 987, 358 US 869, reh den 358 US 913.

Defendant urges that we reject the long line of cases holding that reviewing courts should not consider constitutional questions not properly raised in the trial court. Defendant cites section 121-9 of the Criminal Code (Ill Rev Stats 1965, c 38, § 121-9) wherein it states: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” We note first that the statutory language is permissive. Secondly, it embraces the prior Illinois law that where the evidence was close, the court would consider certain errors which prejudiced the defendant although not raised at the trial level.

An examination of the cases in which this has occurred reveals that this doctrine was invoked only with regard to questions involving the fairness of the trial. People v. Weinstein, 35 Ill2d 467, 220 NE2d 432 (1966), improper final argument; People v. Bradley, 30 Ill2d 597, 198 NE2d 809 (1964), improper severance; People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295 (1963), prejudicial conduct of the trial court; People v. Moore, 9 Ill2d 224, 137 NE2d 246 (1956), prejudicial argument; People v. Potts, 74 Ill App2d 301, 220 NE2d 251 (1966), improper admission of evidence; People v. Payton, 72 Ill App2d 240, 218 NE2d 518 (1966), improper foundation for certain testimony; People v. DeStefano, 64 Ill App2d 368, 212 NE2d 368 (1965), cert den 35 Law Week 3125, polling of the jury; People v. Bell, 61 Ill App2d 224, 209 NE2d 366 (1965), improper recall of a witness.

In addition, we believe that the Appellate courts should exercise restraint in reviewing matters not properly raised in the trial courts. People v. Van Hyning, 72 Ill App2d 168, 219 NE2d 268 (1966). The long line of cases declining to review constitutional questions not presented to the trial court convinces us that we should not review the claim of the unconstitutionality of section 28 of the Criminal Code.

For the foregoing reasons, the judgment of the Circuit Court of Cook County, First Municipal Division, is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Mundorf, Defendant-Appellant.
    Gen. No. M-51,444.
    First District, First Division.
    July 17, 1967.
    S. M. Del Principe, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was found guilty of driving a motor vehicle while under the influence of an intoxicating liquor in violation of section 47 of the Uniform Act Regulating Traffic (Ill Rev Stats 1965, c 95½, § 144). He was fined $100 and costs and prosecutes this appeal on the theory that he was not proven guilty beyond a reasonable doubt.

The only evidence produced by the State was the testimony of the arresting officer. No scientific evidence, such as blood test or drunkometer test, was presented. The officer testified that he observed defendant making an illegal left turn at the corner of Ogden and Chicago avenues, in Chicago, Illinois. The officer pursued defendant and signalled for him to pull over to the side of the road. Upon informing the defendant of his illegal turn, the officer smelled the odor of alcohol on defendant’s breath. There was a passenger in defendant’s car and the officer testified that the passenger drove the car to the police station.

The officer, who had been on the police force for 11 years and had made over 100 arrests of intoxicated drivers, described the defendant as follows:

“Odor of breath was strong, his eyes were bloodshot, his face was flushed, his attitude was talkative, balance was swaying, and the finger to the nose test, he refused; turning was swaying, speech he refused.”

The officer further testified that defendant admitted drinking earlier in the afternoon. In the officer’s opinion, defendant was intoxicated. The officer also testified that defendant said he had an ulcer condition and observed defendant taking Maalox.

Once the complaint was issued, and the bond posted, the keys to defendant’s car were returned to him and he drove away from the police station.

The defendant testified that he had recently been hospitalized for an ulcer and liver condition which prohibited him from drinking. He had taken some customers to lunch that afternoon but had nothing intoxicating to drink. The passenger had been with defendant during the entire afternoon. Although he had four or five drinks, the passenger corroborated the testimony that defendant had not had anything alcoholic.

The officer’s testimony was directly contradicted by defendant and the passenger on several key points. First, defendant drove his car to the police station, not the passenger. The passenger testified that he did not follow the officer to the station and further that after the complaint was issued, defendant drove away from the station. Second, although the officer said defendant’s eyes were bloodshot, one of defendant’s eyes was glass.

The court is well aware that the trial judge’s finding on the credibility of the witness is entitled to great weight. However, where the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt, we will reverse. People v. Anderson, 30 Ill2d 413, 197 NE 2d 24 (1964) ; People v. Pellegrino, 30 Ill2d 331, 196 NE2d 670 (1964).

After an examination of the record in this cause, it is our opinion that the State failed to prove the defendant guilty beyond a reasonable doubt of driving a motor vehicle while under the influence of an intoxicating liquor. The judgment of the trial court is reversed.

Judgment reversed.

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


author: MR. JUSTICE BURMAN

text:
    Woodrow Smith, et al., Plaintiffs-Appellants, v. Julian R. Lewis, et al., and Guaranty Bank & Trust Company, as Trustee Under the Provisions of a Trust Agreement Dated the 24th Day of February, 1964, Known as Trust Number 10850, Defendants-Appellees.
    Gen. No. 51,635.
    First District, First Division.
    July 17, 1967.
    Rehearing denied August 11, 1967.

      Crowley, Sprecher, Barrett & Karaba, of Chicago (William G. Webber, of counsel), for appellants.
    Mitchell Edelson, Jr., of Chicago (Harry G. Fins, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In this action plaintiffs alleged that they conveyed a parcel of real estate to defendant, Julian R. Lewis, under a contractual arrangement which they claimed was breached. They prayed that the conveyance be declared a mortgage and the property be reconveyed to them and possession restored to them and for other relief. The cause, after being at issue, was referred to a Master in Chancery who, amongst other findings and conclusions, found that their warranty deed was an equitable mortgage and the plaintiffs were the owners of the property. On May 2, 1966, the Chancellor entered a decree, in which he substantially adopted the findings of the Master including an accounting showing that there was a balance of $2,647.16 due and owing the defendants from the plaintiffs. In this appeal plaintiffs contend that the accounting was incorrect and that under their computation there was due them the sum of $14,188.55, plus an award of $5,000 as punitive damages.

We concern ourselves first with defendants’ motion to dismiss the appeal on the grounds that the orders appealed from are not final. Plaintiffs appeal from the entry of three orders as follows:

(a) The portions of an order of March 21, 1966, which deny plaintiffs leave to join as third party defendants the persons who were in possession of the property, and a denial of leave to file an amended complaint;
(b) The decree of May 2nd, which we have referred to above; and
(c) Certain parts of the order of June 15, 1966, which amended the decree of May 2, 1966, in certain respects.

It is apparent from the reading of the June 15th order, which was the last order mentioned in the appeal, that it is not a final order nor does it state that there is no just reason for delaying enforcement or appeal. The order provides, in part, as follows :

5. Paragraph 13 of the Decree of May 6, 1966 is hereby quashed and the Court having further considered the representation of counsel relative to the payment of Master’s fees makes no ruling at this time but shall further consider the matter on June 30, 1966.
6. Paragraph 14 of the decree of May 6, 1966, is hereby quashed and this Court shall further consider and determine the protection the Defendant should be entitled to as mortgagee of the property in question and shall make further determinations thereon on June 30,1966.
9. In addition to the amount of $2,647.16 payable in accordance with Paragraph 2 of this Order, said Plaintiffs shall pay $178.50 per month; however, full credit shall be given to Plaintiffs for such amounts as Defendants have received after deducting such amounts, if any, returned to parties now in possession, as the Court shall more fully determine on June 30,1966.
10. This cause is continued without further notice to the parties to 11:00 A. M. June 30,1966.

The jurisdiction of the Appellate Court is limited to reviewing appeals from final judgments and from certain interlocutory orders specified by the Supreme Court. Ill Const art VI, § 7; Supreme Court Rule 31, Ill Rev Stats 1965, c 110, § 101.31; Supreme Court Rules 307 and 308, effective January 1, 1967; LaSalle- Nat. Bank v. Little Bill “33” Flavors, 80 Ill App2d 298, 225 NE2d 465.

As was stated in Ariola v. Nigro, 13 Ill2d 200, 207, 148 NE2d 787, “we may consider that section 50 (2) was aimed at discouraging piecemeal appeals, in the absence of just reason, and at removing the uncertainty which existed when a final judgment was entered on less than all of the matters in controversy.” The court went on to say that section 50 (2) was intended to apply wherever a final judgment or decree determines fewer than all the rights and liabilities at issue. “Were we to hold otherwise and decide every nonconforming appeal, inadvertent or intentional, on its merits, the section would be reduced to a nullity and the advantage it was intended to create would become nonexistent.” P 208.

Appeals have been dismissed where there is an absence of an express finding by the trial court that there is no just reason for delaying appeal until all claims, rights or liabilities are adjudicated. Hanley v. Hanley, 13 Ill2d 209, 148 NE2d 792; Ariola v. Nigro, 13 Ill2d 200, 148 NE 2d 787. See section 50(2) of the Civil Practice Act, Ill Rev Stats 1965, c 110, § 50(2).

The last order appealed from was entered on June 15, 1966, and in Paragraph 5 the Chancellor reserved his ruling relative to the Master’s fees until June 30, 1966. In Paragraph 6 it provides that the Court shall further consider and determine the matter of protection the defendant should be entitled to as mortgagee on June 30. In Paragraph 9 the court ruled that in addition to the amount of $2,647.16 due the defendants, the plaintiff shall pay $178.50 per month, but full credit will be given to plaintiffs for such amounts “as defendants have received after deducting such amounts, if any, returned to parties now in possession, as the Court shall more fully determine on June 30, 1966.” The cause was continued to June 30,1966, at 11:00 a. m.

We hold that fewer than all matters in controversy have been determined and that the orders appealed from are interlocutory and not final. Accordingly the appeal is dismissed.

Appeal dismissed.

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


author: MR. PRESIDING JUSTICE DAVIS

text:
    Clem Stein, Jr., et al., Plaintiffs-Appellants, v. The County Board of School Trustees of Du Page County, Robert F. Kimbell, et al., Board of Education of Downers Grove Elementary School District No. 58 and Board of Education of Downers Grove High School District No. 98, Du Page County, Illinois, Defendants-Appellees.
    Gen. No. 66-153.
    Second District.
    July 17, 1967.
    Rehearing denied and opinion modified September 15, 1967.

      Ancel, Stonesifer, Glink and Levin, of Chicago, for appellants.
    William V. Hopf, State’s Attorney of Du Page County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, Norman, Engelhardt, Franke & Lauritzen, of Chicago, and Alan Hultman, of Downers Grove, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiffs, residents of Ginger Creek community in Oak Brook, filed an action for an administrative review of the decision of the County Board of School Trustees of Du Page County, herein referred to as the “Board,” which denied their petition for the detachment of territory described therein from certain school districts and its annexation to other districts.

Initially, the Board, following a hearing on the merits, granted the relief sought in the plaintiffs’ petition. Thereafter, the school districts from which the territory was to be detached, filed a petition for rehearing, which challenged the authority of the Board to hear the original petition. After a hearing on the petition for rehearing on its merits, the Board reversed itself and held that it did not have jurisdiction to hear the original petition in that two-thirds of the legal voters residing in the area sought to be detached had not signed the petition, as required by the School Code. In the aforesaid administrative review action, the trial court entered a judgment order affirming the decision of the Board and thereupon the plaintiffs appealed.

This case turns on the narrow question of whether one individual was or was not a legal voter under the relevant statutes and the tests set forth by our courts. Section 9-3 of the School Code (Ill Rev Stats 1965, c 122, par 9-3) states that a legal voter in a school election must be a “citizen of the United States, above the age of twenty-one years, must have resided in the State for one year, in the county for ninety days, in the school district . . . for thirty days immediately preceding the school election and be registered to vote in general elections from a residence located in the school district. . . .” The Election Code sets forth the requirements of those who may register to vote in general elections within this State enumerating, among other things, several residence requirements. Section 3-2 of the Code (Ill Rev Stats 1965, c 46, par 3-2) then provides: “A permanent abode is necessary to constitute a residence within the Meaning” of the Code.

The narrow and single question presented by the parties is whether Nancy Kolby satisfied the “residence” requirements so as to constitute one of the legal voters of the territory sought to be detached. If so, then the plaintiffs and the other petitioners did not have the requisite two-thirds number of the legal voters residing within such territory sign their petition; if not, then the petitioners did have adequate signatures on their petition.

The petition for detachment and annexation was filed on June 9, 1965, making this the crucial date for determining who were the legal voters within the affected area. Nancy Kolby had lived with her parents in the latter’s home within the area in question. On January 29, 1965, the Kolbys’ home was destroyed by fire. The family, including Nancy, moved to a hotel outside of the area in question while the home was being rebuilt. The parents at all times intended to return to their original home upon completion of the rebuilding. This work apparently was completed sometime in the fall of 1965 and the parents did, in fact, return.

Nancy, however, was engaged to James Hunt at the time her parents’ home was destroyed and their wedding date was set for June 26, 1965. On or about May 10, 1965, her fiance executed a lease naming himself and Nancy Hunt as lessees. The lease was to commence June 1, 1965, and the initial rental payment was made at the time the lease was executed. Commencing around June 1, Nancy began to move her personal belongings and furniture into the new apartment from the temporary dwelling of her parents. She continued to live with her parents at the hotel, outside of the area in question, until June 26, 1965, when she was married. Thereafter, she lived in her new apartment. Her father testified that prior to her marriage she had indicated that she did not intend to return to her parents’ rebuilt home — a fact which would seem indisputable under the circumstances.

It is this factual background which must be the basis for our determination of Nancy’s “residence” on June 9, the date the petition was filed. At the outset, it is imperative that we elucidate what “residence” is, and is not, for the purposes of determining whether a person is a legal voter.

In the law, “residence” has no fixed meaning but may have a variety of meanings, dependent upon the context in which it is used. Hughes v. Illinois Public Aid Commission, 2 Ill2d 374, 380, 118 NE2d 14 (1954); 25 Am Jur2d Domicil, § 4. For the purpose of determining the question of the right to vote under our statutes, the word “residence” does not mean the same thing as “domicile.” Clark v. Quick, 377 Ill 424, 426, 36 NE 2d 563 (1941); Coffey v. Board of Election Com’rs of East St. Louis, 375 Ill 385, 388, 31 NE2d 588 (1941); Park v. Hood, 374 Ill 36, 44, 27 NE2d 838 (1940); Pope v. Board of Election Com’rs of East St. Louis, 370 Ill 196, 202, 18 NE2d 214 (1938); Dorsey v. Brigham, 177 Ill 250, 264, 52 NE 303 (1898). Many of the apparent inconsistencies found in the cases laboring with the question of what constitutes a person’s “residence” can be attributed to the fact that some courts equate “residence” with “domicile” and apply rules of law applicable to domicile, while other courts do not. Our Supreme Court has unequivocably stated that for the purpose of our election statutes, the two words are not synonymous. Thus, in applying the legal tests for the determination of Nancy’s “residence” to the factual situation before us, we are neither limited to nor bound by the legal rules applicable to the determination of her domicile.

For voting purposes, “residence” means “permanent abode.” Clark v. Quick, supra, 426; Coffey v. Board of Election Com’rs of East St. Louis, supra, 387; Park v. Hood, supra, 43; Pope v. Board of Election Com’rs of East St. Louis, supra, 199, 200. In sum, “residence” is the principal dwelling place of a person — the place he considers “home.” It denotes a permanency of some measure. Two elements are necessary to create a residence: (1) a physical presence in that place and (2) the intention of remaining there as a permanent home. Hughes v. Illinois Public Aid Commission, supra, 380.

If a person establishes a place as his residence, a temporary absence therefrom will not cause him to lose his residence if he at all times intended to return at some future time and never intended to permanently abandon the place as his permanent residence. The same is true if a person leaves his residence with only a conditional intention of acquiring a new residence, so long as his intention remains conditional. Park v. Hood, supra, 43; Welsh v. Shumway, 232 Ill 54, 79, 80, 83 NE 549 (1908). It is the intent of the person which is paramount in determining whether he has abandoned or changed a residence. Hughes v. Illinois Public Aid Commission, supra, 380; Bullman v. Cooper, 362 Ill 469, 476, 200 NE 173 (1936); Welsh v. Shumway, supra, 77; Kreitz v. Behrensmeyer, 125 Ill 141, 195, 17 NE 232 (1888).

The distinction between “residence,” as the word is used for election purposes, and “domicile,” is crucial in this case. Domicile is a continuing thing and from the moment a person is born he must, at all times, have a domicile. Thus, one domicile may not be abandoned until another is acquired. To change domicile requires actually four elements: (1) physical abandonment of the first domicile; (2) an intent not to return to it; (3) a physical presence in a new domicile; and (4) an intent to make that his domicile. In this manner domicile is never lost.

The same is not true for a residence. A person need not at all times have a permanent abode. If a person physically leaves what has been his permanent abode and at any time during his absence acquires an unconditional intent not to return, it is no longer his residence. He may or may not at that time have a new permanent abode or residence. That is a distinct, separate question depending on his physical presence and intent with respect to a new residence. Thus, while a person must retain a domicile until he acquires a new one, it does not follow that the retained domicile is also that person’s residence or place of abode. The two may be very different places: the latter may not even exist. Clark v. Quick, supra, 426.

The argument is made that if residence is looked upon in the manner we suggest, a citizen may be deprived of his right to vote. Certainly this may be true, but we see nothing inherently evil in this. The right of a voter to express his will at the polls is not an absolute right. The legislature unquestionably has the right to prescribe reasonable conditions upon the right to vote, including conditions as to residency. Clark v. Quick, supra, 427; Pope v. Board of Election Com’rs of East St. Louis, supra, 200; 25 Am Jur2d Elections, §§ 52, 66.

The residency requirement with regard to elections serves as a protection in that it aids in the identification of voters. More importantly, it helps assure that those who are expressing their will have been in the area sufficiently long to become informed on the issues; that they intend to remain there; and that they will have an honest interest in the matter upon which a vote is being taken. These elements are of greater significance when the issue, as here, is essentially a local one.

In Pope v. Board of Election Com’rs of East St. Louis, supra, 203, the court quoted from the statement of Mr. Justice Scholfield in Kreitz v. Behrensmeyer, supra, 194, 195, in a passage that is particularly relevant here, as follows: “It can, under our system, need no elucidation, that a man cannot be entitled to vote, at any one time, in either of two places, as he shall elect; and it is, . . . pertinent to keep in mind that it does not follow because a man must have a domicile somewhere, and that a domicile once gained remains until a new one is acquired, that a man must be entitled to vote somewhere, or that the right to vote at a particular poll, being once established, is presumed to continue until the right to vote elsewhere is shown.”

The question of Nancy’s residence is a factual one. There is no question that she had physically abandoned her parents’ home within the area in question at the time of the fire in January of 1965. Her parents also physically left their residence at that time but, beyond doubt, they at all times intended to return there as their residence when it was rebuilt. Unquestionably, they did not abandon their established residence.

Nancy’s intent is something different. Not only did she physically abandon her prior residence, but we think it unquestionable that on June 9, 1965, her intent was unconditionally and unequivocably not to return there as her place of residence. True, the world being what it is and full of uncertainties, something might have happened between June 9 and June 26 so that Nancy would not marry her fiance on that date. But so far as the question before us is concerned, the normal uncertainties of life did not make her intent, as of June 9, not to return to her parents’ home as her place of residence, any less unconditional.

On June 9, Nancy and her fiance had been engaged for some time; approximately one month prior to this date, they had obtained a lease for their future home; the terms of the lease had already commenced on June 9 and Nancy had, in fact, removed some of her possessions and furniture from the temporary dwelling of her parents to her new home; her impending marriage was slightly more than two weeks away; and the rebuilding of her parents’ home was obviously not close to completion as indicated by the fact that it was not reoccupied by them until the fall of the year.

All of these facts and circumstances suggest but one conclusion as to Nancy’s intent on June 9. It was that she would not return to her prior home at any future time, as her permanent dwelling or place of abode. Her father’s testimony that this was her expressed intent is superfluous — the surrounding facts and circumstances suggest only one conclusion as to Nancy’s intent on June 9. Declarations of a person’s intent are admissible as evidence thereof, but his acts and surrounding circumstances are more persuasive in making the factual determination of his intent. Welsh v. Shumway, supra, 77.

The factual situation at bar is perhaps somewhat unique in that it is an unusual combination of unrelated events which leads us to the conclusion we feel we must reach. Had it not been for the fire, Nancy would have remained in what had been her permanent abode through June 9; there would have been no abandonment, and the question of her qualification as a legal voter undoubtedly would not have been raised. This was followed by the circumstance of her impending marriage and the acts in preparation therefor, including the determination to establish and to enter into possession of a new permanent abode, as evidenced by the transfer of belongings and furniture thereto.

Whatever Nancy’s intent might have been in January or February of 1965, it seems clear from the circumstances, that by June 9 her intent not to return to her prior residence was definite. The somewhat unusual combination of circumstances resulted in Nancy’s loss of “residence” for voting purposes where normally there would not be such a loss. This, however, does not permit us to alter our conclusion, which must rest on the particular facts and circumstances of this case.

In Pope, the court on page 203 set forth the legal principles applicable to our factual situation. In holding that the establishment of domicile was not sufficient for voting purposes, the court said: “It is necessary that he show a place of residence or permanent abode for the requisite statutory period in the precinct in which he seeks to register, which he has not abandoned but which he occupies as an abode, or to which he intends to return.” (Emphasis added.)

Nancy no longer occupied a place within the area in question as her abode. It was abandoned! The abandonment alone would not have deprived her of her residence requirement had she intended to return, or even if her intent as to her new residence was conditional. Some time prior to June 9 she might have had an intent to return to her parents’ home, or a conditional intent to do so if it were rebuilt prior to the time of her marriage. On June 9 it was obvious that this was not to be. By that date, it safely can be said that Nancy intended her abandonment of her prior residence to be permanent. Even if she at some later date were to alter that intent because of unforeseen circumstances, it would not alter her intent as of June 9 and, hence, could not alter our conclusion. Kreitz v. Behrensmeyer, supra, 195.

For the reasons stated, the judgment of the trial court affirming the orders of the County Board of School Trustees, dated November 24, 1965, and January 28, 1966, are reversed and vacated, and the cause is remanded to the Circuit Court with directions to remand the matter to the County Board of School Trustees for such action as it may deem proper with reference to ruling on the petition for rehearing, filed on July 16, 1965, by certain defendants herein, contesting the propriety of the County Board’s order dated July 8, 1965, with reference to the merit of the cause; and that the trial court further direct the County Board to exclude from its consideration the jurisdictional question which this court has determined.

Reversed and remanded with directions.

ABRAHAMSON and MORAN, JJ., concur.


author: JUSTICE BRYANT.

text:
    Johnnie Wesley, Plaintiff-Appellant, v. Police Board of the City of Chicago, et al., Defendants-Appellees.
    Gen. No. 51,432.
    First District, Second Division.
    July 14, 1967.
    Glenn C. Fowlkes and R. Eugene Pincham, of Chicago, for appellant;
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Assistant Corporation Counsel and Harry H. Pollack, Special Assistant Corporation Counsel, of counsel), for appellees.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: MR. PRESIDING JUSTICE MURPHY

text:
    John Lilegdon, et al., Plaintiffs-Appellants, v. Harry Hanuska, Defendant-Appellee.
    Gen. No. 51,631.
    First District, First Division.
    July 17, 1967.
    Rehearing denied August 11, 1967.

      James R. Mitchell and Junie L. Sinson, of Chicago (Jurco, Damisch & Sinson, of counsel), for appellants.
    Sweeney and Riman, of Chicago (Marvin Riman, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Plaintiffs appeal from a jury verdict and judgment for defendant in their action for personal injuries- and property damage allegedly incurred by them as a result of an intersection collision.

On appeal, plaintiffs contend the trial court committed prejudicial error (1) in giving the jury instructions on “imputed negligence” and “right of way,” and (2) in permitting the defendant’s doctor to testify as to a physical examination made of the plaintiff when no timely proffer of the report had been made to the plaintiffs’ attorney. Plaintiffs also contend that the verdict was contrary to the manifest weight of the evidence.

Late in the afternoon of December 30, 1961, plaintiffs (husband and wife) were in an automobile being operated by plaintiff John Lilegdon. Mrs. Estelle Lilegdon was in the front seat with her husband, and their destination was a National Tea store located at the northeast corner of 50th Avenue and 22nd Street. While plaintiffs were in the process of making a left-hand turn at that intersection, defendant’s car collided with the right rear side of plaintiffs’ car. Mrs. Lilegdon suffered physical injuries, and a considerable portion of the trial involved testimony by experts considering the causal relationship between the trauma suffered by Mrs. Lilegdon and subsequent surgery.

Plaintiff John Lilegdon testified that just before the occurrence they were on 22nd Street, moving in an easterly direction. When they arrived at the intersection of 50th and 22nd Street, the traffic signal for east and westbound lanes was red, so when he approached 50th Avenue he “pulled into the cutout of the highway indicating that I am going to be making a left turn from the eastbound lane on Cermak Road to 50th Avenue going north.” They waited for the east and westbound traffic light, and “I proceeded and pulled slowly into the intersection ... on an angle facing northeasterly, and I stopped there at a standstill. . . . [T] here were three cars that were waiting to get into the National Tea lot on 50th Avenue. If I would have proceeded across the intersection, my car would be protruding into the westbound lane of Cermak Road. . . . [T] here were no cars proceeding in a westerly direction.” He remained stopped for seven to ten seconds, and “I sort of glanced sideways, and I thought I saw lights flashing at the side of my car, and then I felt an impact hitting my car, . . . the right side of my car, the rear door and the wheel portion of the rear wheel, and the impact threw my car across into the westbound lane.” He was unable to estimate the speed of the other vehicle but characterized it as “fast.” After the impact his car was facing southeast in the second westbound lane from the north curb of 22nd Street, about 10 to 15 feet west of 50th Avenue.

Mrs. Lilegdon testified that as they approached the intersection of 22nd and 50th Avenue, they pulled into the cutoff; the light was red when they arrived there, and they waited to make their turn; when the light changed, they “inched over into the intersection,” and she did not recall anything happening after that. The next thing she knew, “I know I was lying someplace, but just where it was, I couldn’t say.” She further testified she was taken to a hospital and related the details of her treatment and subsequent condition.

A witness for plaintiffs, Joseph Grachen, testified he saw the Lilegdon station wagon as it was waiting in the cutout to make a left-hand turn. “It was facing more towards the north than the east,” and it had been coming east on 22nd Street. The other vehicle was proceeding west “5 or 10 feet on the south side of the [median] strip going west,” and in the side of the street for vehicles going in an easterly direction. The vehicle that was going in a westerly direction “rammed into the right rear of the Ford station wagon,” which was standing still. The speed of the westbound vehicle was about 20 to 25 miles an hour. Grachen did not identify himself to anyone at the scene and made contact with plaintiffs by telephone three or four days after the occurrence. On cross-examination, he testified that the traffic light was green for east and west traffic, and as far as he could recall, “there was no eastbound traffic at the moment of impact.”

Defendant was called as an adverse witness. He was employed by the CTA as a bus driver and used 22nd Street daily and was familiar with it. He testified that it was a Saturday afternoon, and he had had “two drinks” of whiskey in celebration of a deal he had made for the exchange of his automobile, and he began to “head home.” As he proceeded in a westerly direction down 22nd Street and approached the intersection of 50th and 22nd, it was sleeting and snowing, and he had his headlights on. He had been going this route periodically for about seven years. He saw the other vehicle before the impact, and they were the only two cars on the street. The other vehicle was going 15 miles an hour, as was defendant. When the other vehicle allegedly made its left turn in front of him, it was from the lane just to the right of the “cutout lane,” and it was directly “in front of me.’ He applied his brakes before the impact, and he did not think that the other vehicle applied its brakes. When he applied his brakes his speed was about 15 miles an hour, as was the other car, which was going “just about a northeasterly direction.” In response to the question, “Do you recall having driven in a westerly direction on the side of the center divider for eastbound traffic?” defendant replied, “No, sir. I was in the proper lane.” He was further examined regarding his prior testimony on deposition.

Among the witnesses called for defendant was Dr. David Petty, who had conducted a physical examination of Estelle Lilegdon. He was of the opinion that she made a complete recovery from her injuries, and that it was impossible, therefore, to have been any causal relationship between the trauma suffered and her subsequent hysterectomy. Plaintiffs objected to the testimony of Dr. Petty on the ground that they had not been furnished with a copy of the doctor’s report ten days prior to trial in compliance with the rules of the Supreme Court.

Initially, we consider the contention of plaintiffs that it was error for the court to give to the jury the following instruction:

“In considering the case of Estelle Lilegdon you must first determine whether she was an owner of the vehicle in which she was riding and that the ride was for the mutual benefit of herself and her driver. If you determine this to be the fact, then you are instructed that the negligence, if any, of the driver is imputed to her.
“On the other hand, if you find that she was not the owner of the vehicle in which she was riding, or that the ride was not for the mutual benefit for herself and the driver, then the negligence, if any, of the driver is not imputed to her.”

John Lilegdon testified that he was the owner of the automobile which he was driving. Mrs. Estelle Lilegdon testified that the car was owned by her and her husband# and on deposition she had testified that the automobile was “my husband’s and mine” and that it was in “both” of their names. She had no driver’s license and did not know how to drive the car.

From the foregoing testimony on car ownership, plaintiffs argue that the manifest weight of the evidence was that “Estelle Lilegdon had neither legal title, possession or control of the car and no legal right to possession or control of the car at the time the accident occurred,” and “at most, the statements as to ownership amounted to a legal conclusion” and were not binding on the plaintiff. Harris v. Minardi, 74 Ill App2d 262, 220 NE2d 39 (1966).

Defendant argues that a fair reading of the imputed negligence instruction will reveal that the jury had the option of finding that the plaintiff, Estelle Lilegdon, was not the owner of the vehicle in which she -yras riding, or that the ride was not for the mutual benefit for herself and driver; that the instruction clearly required the jury to find that the ride was for the mutual benefit of Mrs. Lilegdon and her driver, as well as that she was the owner of the vehicle in question, and a reasonable inference is that the ride was for her benefit or at least for the mutual benefit of her and her driver, who would have the use and benefit of his wife fulfilling her act and responsibility.

Defendant further argues that the right or ability of Estelle Lilegdon to drive an automobile is not at issue— the sole question is whether she had, as an owner on a ride for the mutual benefit of herself and her driver, the right to control the vehicle or the manner in which the vehicle was being operated.

Other than the testimony of the plaintiffs, the record does not include any further evidence as to the ownership of plaintiffs’ car, and with this posture as to that issue, we believe plaintiffs’ car ownership was a jury question.

The instant situation comes within the guidelines set forth in Simaitis v. Thrash, 25 111 App2d 340, 166 NE 2d 306 (1960), where it is said (p 351):

“Where an owner is a passenger in his automobile at the time of an accident, he is liable for the negligence of the driver of his automobile if (1) he has not abandoned his right to control the automobile, or (2) if he exercises or has a right to exercise any control over the driver or the operation of the automobile, or (3) if the ride is for his benefit or for the mutual benefit of himself and the driver. Palmer v. Miller, 310 Ill App 582, 35 NE2d 104; Palmer v. Miller, 380 Ill 256, 43 NE2d 973.”

We conclude that it was proper for the trial court in this case to give the foregoing instruction on “imputed negligence.” The jury here was instructed that if she was not the owner of the vehicle in which she was riding, or the ride was not for the mutual benefit of the plaintiffs, then the negligence of the driver was not to be imputed to her.

We consider next plaintiffs’ contention that it was error to give a left turn “right of way” instruction. Plaintiffs suggest that the trial court was “apparently confused by the significance of testimony showing that at the time the collision occurred the plaintiff’s station wagon was projecting a few inches into the westbound lane on [22nd Street] and that the plaintiff’s vehicle was moving at a slow rate of speed.” Plaintiffs argue that the instruction was improper since, “as a matter of law, the cause of the collision was the defendant’s intoxication and his sudden swerve from the eastbound to the westbound lane of traffic at the intersection of [22nd Street] and 50th Avenue. Illinois decisions establish that even where a party is guilty of making an illegal left-hand turn, he is not chargeable with contributory negligence where it is clear that the real cause of the collision was the negligence of the other driver. . . . Even assuming that the plaintiff’s vehicle was in the process of making an illegal left-hand turn, the facts show that this fact had no causal relationship to the collision.”

Defendant argues that “considering this plaintiff’s admissions in his statements to the police officers (that he was in the process of making a left turn, travelling five miles per hour) as conceded in his cross-examination, a sufficient basis existed for the jury to determine that he was negligent, and that his negligence was the proximate cause of the occurrence. Certainly the jury heard the evidence, observed the demeanor of the witnesses as they testified, and were entitled to make their own decision as to what testimony was believable and what witnesses they found credible.”

After examining the testimony of the occurrence witnesses, we conclude it was not error for the trial court to give a “right of way” instruction in this case. Also, we are not persuaded that the verdict was contrary to the manifest weight of the evidence. The jury was sufficiently informed as to defendant’s alleged intoxication at the time of the occurrence, and its value as a factor was for the determination of the jury. This is not a case in which an opposite conclusion to that of the jury is clearly evident, as is required before this court can disturb the verdict. Black v. DeWitt, 55 Ill App2d 220, 225, 204 NE2d 820 (1965).

Plaintiffs next contend that the trial court committed prejudicial error in permitting Dr. David Petty to testify in violation of Supreme Court Rule 17-1, since a medical report prepared by him had not been furnished to plaintiffs within the time required by the rule. Plaintiffs state that an order was entered on February 23, 1966, which required plaintiff to submit to a physical examination by Dr. Petty within 20 days, or on or before March 15, 1966, and the record shows that the medical report of Dr. Petty was not furnished to plaintiffs’ counsel until April 12, 1966, after the case had been assigned for trial, although the examination had been made on March 24, 1966. Plaintiffs assert that nothing in the record suggests why the report could not have been made available by April 1, 1966, or 10 days prior to trial, as the Supreme Court Rule requires. In support, plaintiffs cite Harris v. Minardi, 74 Ill App2d 262, where the court stated (p 268):

“We now hold that Supreme Court Rule 17-1 is mandatory and that a failure to comply with the Rule prohibits the use of the medical report except at the instance of the party examined or at the instance of the party who produced the person examined.”

And on page 269:

“Permitting such testimony or any medical testimony in violation of the Rule constitutes reversible error.”

On this point the record shows that on February 23, 1966, Judge Schultz ordered that plaintiff Estelle Lilegdon submit herself for examination by Dr. David T. Petty within 20 days; on March 4, 1966, the cause was dismissed for want of prosecution by Judge Ward; on March 14, 1966, the plaintiffs moved to vacate the dismissal for want of prosecution, stating that on March 7, Estelle Lilegdon had sought a ten-day delay in the examination, which was agreed to by defendant’s examining doctor. The dismissal order was then vacated and the cause was returned to the “active trial calendar on March 31, 1966, to be added below the black line.”

It is not disputed by defendant that a copy of the written report of Dr. Petty, the examining physician, was not delivered to the attorney for the party examined ten days before trial, as required by Rule 17-1(3). The copy was delivered to plaintiffs’ attorney on April 12, 1966, the day the case was assigned out for the trial, which commenced on April 13,1966.

When defendant offered Dr. Petty as a witness, plaintiffs’ counsel objected to his testimony because of noncompliance with Rule 17-1. Out of the presence of the jury, the trial court considered at length the arguments of counsel, the mandatory or discretionary character of the rule, the events preceding the trial, including the dismissal of the case and its reinstatement and return to the active trial calendar, and the element of surprise to plaintiffs. The court finally permitted Dr. Petty to testify, stating, “Incidentally, I can’t help but say, although there is a claim of surprise, there has been no announcement here of any action that has been taken that prevents the plaintiff from being in a position to meet whatever the report may contain, or whatever testimony may be forthcoming.”

After examining this record, we believe the sequence of the facts presented to the court justified the use of sound discretion by the court in determining whether the penalty for failure to comply with the time requirement should be applied, and we find no abuse of that discretion here.

Finally, we consider plaintiffs’ contention that the trial court erred prejudicially in refusing plaintiffs the right to rebut Dr. Petty as to his experience as a gynecologist. Dr. Petty testified on behalf of defendant as an expert in gynecology. Plaintiffs’ cross-examination sought to show that he had little, if any, actual surgical experience in this area. Dr. Petty stated that he had performed a hysterectomy within the prior six months at Augustana Lutheran Hospital. Plaintiffs then subpoenaed the record librarian of Augustana Hospital, who appeared in court prepared, according to the offer of proof made by plaintiffs’ counsel, to testify that the hospital records did not show that Dr. Petty had performed surgery at the hospital as he had testified. After some colloquy between court and counsel, the court ruled that the proffered testimony was not impeaching, stating, “The object of the plaintiff isn’t solely related to the educational and professional background of the witness involved,” and the impeachment offer was not on a point material to the issues and one of the ultimate facts involved. We find no abuse of discretion here.

For the reasons given, the judgment of the trial court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Sam DeStefano, Appellant.
    Gen. No. 51,837.
    First District, First Division.
    July 17, 1967.
    Rehearing denied August 11, 1967.

      Anna R. Lavin, of Chicago, for appellant.
    William G. Clark, Attorney General, of Springfield (Daniel P. Ward, State’s Attorney of Cook County, Fred G. Leach, Assistant Attorney General and Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a judgment of conviction finding the defendant, Sam DeStefano, guilty of conspiring with the intent that the offense of perjury be committed. He was not charged with the offense of perjury. He was fined $1,000 and sentenced to the Illinois State Penitentiary for a term of three to five years. He appealed directly to the Supreme Court and that court transferred the appeal to this court.

On appeal the defendant contends: (1) that the indictment fails to charge an offense cognizable under law; (2) that the evidence does not sustain a conviction on the charge made; (3) that the prosecutor was allowed to argue to the jury from the written transcript of testimony contrary to law; (4) that the court erred in the giving and refusing of certain instructions; (5) that the State failed to put the defendant to trial within four months after his first demand for trial, without any fault on his part; (6) that the court erred in failing to transfer the cause to another place for trial; and (7) that the entire venire was contaminated and should have been discharged.

On September 3, 1964, an indictment was returned charging in the first count that beginning October 5,1962, and continuing to July 3, 1963, the defendant and Charles Grimaldi committed the offense of conspiracy in that they, with the intent that the offense of perjury be committed, agreed together and with Henrietta Burns, Patrick Burns, Norma McCluskie and Bernard McCluskie to the commission of the offense of perjury. The indictment charged that they knowingly and intentionally agreed that Henrietta Burns would testify falsely in the trial of Frank Santucci, Anthony Donato and Robert Chessher for a tavern robbery in which trial Henrietta Burns would be a material witness; that said Henrietta Burns would not identify Robert Chessher as being present at said tavern shortly before the robbery, which fact would be material to the issues of the trial and which fact Henrietta Burns did not believe to be true and that she did believe that she could identify Robert Chessher; and that in furtherance of said conspiracy Patrick Burns received $1,000 from an unknown person in the presence of Sam DeStefano. It was further charged that during the robbery trial and in furtherance of the conspiracy to commit perjury, Henrietta Burns testified, among other things, in substance and effect, that she was not and could not be sure whether Robert Chessher had been in the tavern shortly before the robbery when, in fact, Henrietta Burns believed he had been in the tavern shortly before the robbery. A second count charged a conspiracy to obstruct justice and this count was dismissed.

The defendant contends that the indictment fails to charge a crime cognizable under law. The motion to strike the two-count indictment and to dimiss the defendant was argued before Judge Herbert Friedlund and denied. After the granting of a change of venue the cause was reassigned to Judge George Leighton. The same motion was again heard and denied as to Count I and allowed as to Count II. The indictment against codefendant Charles Grimaldi was stricken on motion of the State and the case proceeded to trial before Judge Leighton which resulted in a verdict of guilty. Judge Leighton granted a new trial and the cause was reassigned to Judge Edward Finnegan and the same motion was argued and denied by him and the trial before him resulted in a hung jury. The third trial proceeded before Judge Nathan Cohen and after the same motion was again urged and denied the jury returned a verdict of guilty and after judgment on the verdict this appeal was taken.

The defendant argues that nowhere in the charge is there an allegation of an agreement that Henrietta Burns would undertake to testify falsely under oath or affirmation. The defendant contends that the italicized words which do not appear in the indictment are an essential element of the charge. We are not in accord. The defendant is not charged with the offense of perjury where the statute provides that “a person commits perjury when, under oath ... he makes a false statement, . . .” Ill Rev Stats 1965, c 38, § 32-2. The indictment in question charges the defendant with conspiracy with intent that perjury be committed and the gist of the crime is the alleged conspiracy agreement to accomplish an unlawful purpose and it is, therefore, unnecessary to allege the means by which the act or object of the conspiracy is to be accomplished. People v. Peppas, 24 Ill2d 483,182 NE2d 228.

We also see no merit to the claim that because the indictment states that the robbery charge was brought by way of information, without any explanation of the absence of an indictment, the tribunal lacked jurisdiction. The defendant further claims that the charge of conspiracy to commit the offense must fall under the doctrine of merger as the State, in describing the offense in the indictment, clearly charged the object of the agreement was attained. We do not agree. Persons who conspire to an unlawful act may be convicted notwithstanding that the contemplated offense was actually completed, as a conspiracy to commit a crime does not merge in the crime itself. People v. Robertson, 284 Ill 620, 120 NE 539. The defendant relies on section 8-3 of chapter 38 of the Illinois Revised Statutes (1963) which reads: “It is a defense to a charge of solicitation or conspiracy that if the criminal object were achieved the accused would not be guilty of an offense.” The Committee Comments to section 8-2 explain that section 8-3 “provides a defense if the accused would not be guilty of an offense if the conduct which is the object of the conspiracy is performed.” Further section 8-5 makes it clear that section 8-3 does not mean that the conspiracy merges into the completed act. It provides, “No person shall be convicted of both the inchoate and the principal offense,” and the Committee Comments state that “Section 8-5 is intended to limit conviction and punishment to either the inchoate or principal offense (where the principal offense is accomplished).” We are also of the opinion that the trial judge did not err in refusing to give a tendered instruction based on section 8-3 because we hold that it was not available under the facts of the instant case. The fact that the criminal object was obtained does not prevent the defendant from being prosecuted for the conspiracy. People v. Robertson, 284 Ill 620,120 NE 539.

It is next contended that the evidence does not sustain the conviction on the charge made. The defendant argues that the indictment charges that certain events occurred “in the trial of information number 63-11 wherein the People of the State of Illinois were plaintiffs and Frank Santucci, Anthony Donato and Robert Chessher were defendants on the charge of robbery” and “the entire transcript is devoid of one single word of evidence to support that language.” The defendant states that the only evidence at all relative to the alleged perjury was that Mrs. Burns had occasion to come to the Criminal Court Building and be a witness at a trial with respect to the defendants, Chessher, Santucci, and Donato, and that she was sworn to testify prior to testifying in July of 1963.

The record reveals that Mrs. Henrietta Burns testified,. in the case at bar, that she, her husband, Patrick, and the McCluskies jointly owned a tavern. She said they cashed checks at the tavern every Friday and that in the early morning of Friday, October 5th, 1962, there was one male customer in the tavern. Mrs. McCluskie phoned for a cab from the tavern and left for the bank at 10:00 a. m. The only customer that morning left before the cab came, but after the phone call. She testified that she had observed his face when she served him a bottle of beer. When Mrs. McCluskie returned two masked men entered with guns, took $1,200 from the cashbox and she heard shots. Subsequently, she identified Robert Chessher from a picture shown her by police officers as the person who looked like the man she served in the tavern, before the robbery, and she so testified before the Grand Jury. She testified further that she knew the defendant, Sam De Stef ano, and that Mrs. McCluskie told her she had a visit from DeStefano and subsequently, she, her husband, and the McCluskies, went to DeStefano’s home. At that time Chuck Grimaldi, who had tended bar for them, Carol Lewis and DeStefano’s family were at the home. She said, “Mr. DeStefano told us that he had been contacted by Santucci and that Santucci had offered to return a thousand dollars of our money if we wouldn’t positively identify any of the men connected in the robbery.” He also told them that Santucci was a “desperate man and didn’t want to go to prison and he wouldn’t guarantee we wouldn’t be harmed by Santucci if we decided to testify.” When she told him she recognized Chessher he replied that she should not positively identify him. She said they then agreed not to make any positive identifications and accept the $1,000. She testified further that her husband later brought $1,000 which he said he received at DeStefano’s home. She said at the trial of Chessher and the other defendants in the Criminal Court Building, she testified that Chessher looked like the man in the tavern, but she wasn’t sure. When asked, in the case at bar, “When you said you weren’t sure, was that the truth or not?” she answered, “No.”

The defendant is charged with the offense of conspiracy with intent that perjury be committed. The indictment charges all the elements essential to the offense under the statute and we hold that there is ample evidence to warrant a conviction. The defendant states and we agree, that there was a variance between the pleading and proof, but in our judgment the complained of language was unnecessarily added in the indictment and was clearly surplusage. People v. Figgers, 23 Ill2d 516, 179 NE2d 626; People v. Keene, 391 Ill 305, 63 NE 2d 509.

It is also urged that the testimony of Mrs. Burns, regarding her agreement to testify falsely, was not materially proven and her contradictory evidence cannot support guilt beyond a reasonable doubt. The record shows that on cross-examination this witness, when asked if she had an agreement with the defendant to lie answered, “No, I just wasn’t to give a positive identification.” From this and other statements made by the witness the defendant argues that it is incumbent upon the State to prove, not only the substance of the testimony charged to be false, but that it is false and that this the State did not do. It is also asserted that it is essential to perjury that the person know that what he is swearing to is false, citing Coyne v. People, 124 Ill 17, 14 NE 668. We must again repeat that in the instant case the defendant is not charged with perjury. The jury could find from the evidence that the defendant paid $1,000 to have Mrs. Burns testify falsely by not giving a positive identification of Chessher at the robbery trial and that this she did. We see no merit to the contention that the illegal agreement was not proven.

Error is also charged because the prosecution was allowed to argue to the jury from the written transcript of testimony. We do not see how the defendant was prejudiced by the reading of a few sentences from the transcript of evidence during his argument to the jury. No claim was made that the facts contained in the transcript were inaccurate or disputed. This was a matter for the sound discretion of the trial judge and we find no abuse.

The defendant objected to the giving of the following instruction: “You are further instructed that in order for the People of State of Illinois to prove the defendant, Sam DeStefano, guilty of the crime charged beyond a reasonable doubt, it is not necessary that the crime of perjury actually be committed.”

The defendant argues that this charge was given notwithstanding that the indictment charged that Henrietta Burns had committed perjury and that she had completed the offense. This the defendant says amounted to an amendment of the indictment citing Stirone v. United States, 361 US 212. We do not agree.

The indictment alleges that the defendant was charged with intent that perjury be committed and therefore the complained of instruction was proper. The defendant also complains that the court prejudicially refused to give an instruction which, in part, charges that before there can be a verdict of guilty the jury must believe, beyond a reasonable doubt, that the facts proven are inconsistent with his innocence and if two conclusions can reasonably be drawn from the evidence, one of guilt and one of innocence, they should find the defendant not guilty. The defendant has not seen fit to abstract all the other instructions, both given and refused, nor are we informed by defendant whether or not similar instructions were given. It has been held that when this occurs the reviewing court will not consider the alleged impropriety of refusing a particular instruction. People v. Robinson, 27 Ill2d 289, 189 NE2d 243; People v. Todaro, 14 Ill2d 594,153 NE2d 563. However, we note that the State was required only to prove its case beyond a reasonable doubt and that there were several instructions given which adequately dealt with the presumption of innocence and the State’s burden of proving the defendant guilty beyond a reasonable doubt. See People v. Hartnett, 49 Ill App2d 357,196 NE2d 671.

It is also the defendant’s position that the State failed to put him on trial within four months after his first demand for trial, without any fault on his part. We do not agree. We have carefully examined the record and have concluded that the delays in the trial were attributable to the defendant. He first demanded a trial on September 3, 1964. He then filed a motion to dismiss the indictment on November 23, 1964, which was denied on December 3, 1964. A motion to dismiss the indictment has been held to be a delay attributable to the defendant. People v. Hamby, 27 Ill2d 493, 190 NE2d 289. On December 14,1964, the defendant answered ready for trial when Judge Friedlund was engaged in another trial. On December 15, 1964, when the cause was called for trial at a date well within the 120 days, the defendant moved to have the trial judge on its own motion disqualify himself and transfer the case to another judge, which was denied. Thereupon the defendant requested a change of venue which was granted and the cause was then transferred to another judge for trial. A request for a change of venue when the case is reached for trial is attributable to the defendant so that it interrupts the running of the statute. The necessity for the postponement of the trial, in our judgment, was therefore the defendant’s fault and the statute does not apply until a new 120 days has elapsed, which did not occur. People v. Rankins, 18 Ill2d 260,163 NE2d 814.

The defendant further submits that the court abused its discretion in failing to grant a transfer of the cause to another place for trial. The record is replete with numerous motions made by the defendant pro se and through his lawyers. On the motion to dismiss the charges he constantly reminded the various judges he appeared before that he was ready for trial “now.” When he went to trial before Judge Leighton, after he was granted a change of venue by Judge Friedlund, he did not renew this motion even though many of the newspaper articles complained of appeared prior thereto in the press. When he appeared before Judge Finnegan, to whom the case was transferred for trial subsequent to the granting of a new trial by Judge Leighton, after a verdict of guilty, the defendant’s counsel again moved for a discharge because he claimed the defendant was not tried within four terms, and this motion was denied. When the court announced the case was going to trial the defendant’s counsel stated he requested a change of venue out of this county and this motion was denied. The trial before Judge Finnegan resulted in a hung jury and subsequently the cause was reassigned to Judge Cohen for trial. Defendant’s counsel again made a motion for change of place of trial which was denied and the cause proceeded to trial. We have examined the grounds that were briefed as well as the cited cases and do not deem it necessary to discuss this contention at length. We have concluded, as did the trial judges, that while there was pretrial publicity it did not establish reasonable grounds that the defendant could not obtain a fair and impartial trial. The voir dire selection in this case revealed that a fair and impartial jury was selected. Nor do we find that the entire venire was contaminated as charged by the defendant. The motion to transfer the case and to dismiss the venire is addressed to the sound discretion of the trial judge and we are satisfied that this discretion was not abused.

For the reasons given above the judgment of the Criminal Court of Cook County is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    Joseph J. Cohn, Plaintiff-Appellee, v. Sam Cinman, et al., Defendants-Appellants.
    Gen. No. 50,545.
    First District, Third Division.
    June 29, 1967.
    Rehearing denied September 21, 1967.

      John D. Vosnos, of Chicago, for appellants.
    Sam Cinman, pro se, of Chicago, appellant.
    Borenstein & Griffin, and Cecil E. Magid, of Chicago (Grossman, Kasakoff, Magid & Silverman, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendants appeal from a decree which, in accordance with the recommendations of a master in chancery, denied the defendants’ motion to dissolve a temporary injunction; held void a bill of sale transferring title to a Chris-Craft cruiser from the plaintiff to the defendant Elsie Cinman, and ordered Elsie Cinman to reconvey the boat in question to the plaintiff. Among defendants’ allegations of error is the charge that the master should have limited his inquiry to the propriety of the temporary injunction, and we proceed to consideration of that point as it is vital to the court’s consideration of the other questions raised.

Plaintiff in his complaint alleged that his business partner, defendant Sam Cinman, defrauded him of his interest in a Chris-Craft cruiser after plaintiff had made substantial payments toward the purchase price of over $19,000. He charged that it was customary for him in the operation of the business to sign certain blank documents which were later filled in by defendant Sam Cinman and that in this instance Cinman converted the signed blank into a bill of sale transferring title to the boat to Elsie Cinman, his wife. The chancellor on motion of the plaintiff issued a temporary injunction restraining Elsie Cinman from selling or otherwise transferring her interest in the boat pending determination of the issue, and defendants moved to dissolve the injunction. The question was referred to the master in chancery who held hearings and made the recommendations hereinbefore noted with respect to the temporary injunction and the substantive issues in the case. Defendants objected to the master’s report on the ground that it went beyond the order of reference, and the objection was overruled. It stood as an exception to the master’s report, was overruled by the chancellor, and the final decree on the merits was entered.

The order of reference in question was entered on a form which had printed on it three prepared orders and a direction at the bottom that two of the three printed orders be stricken and the appropriate provision retained. In the instant case none of the three orders was stricken, but instead a fourth provision was written in as follows:

“(d) The master shall commence hearings 7/10/62 at 2 PM and shall first hear testimony and report to the court on defts’ motion to modify or vacate temp injunction heretofore entered.
/s/ Walker Butler Judge.”

This order remained unamended throughout the course of the proceedings.

Plaintiff contends that the master derived the authority to make findings on the merits of the case from an oral direction of the court, to wit:

“All right, give me an order of reference and specify in it as I have indicated to you, that the Master shall first hear any evidence that the defendants desire to present in connection with their motion, their oral motion to vacate or modify the temporary injunction, and then proceed with the hearing of the case.
“Now, if he determines that the temporary injunction ought to be modified or vacated, then of course, the next thing probably, before you go ahead with your testimony, you will be back here for an order in connection with that recommendation.”

Plaintiff argues that inasmuch as the master eventually concluded that defendants’ motion to vacate or modify the temporary injunction should be denied, he was warranted in proceeding to hear the case on the merits without additional authority from the court. A master in chancery derives his authority from the order referring the case to him, and he cannot extend the scope of that order. Houlihan v. Morrissey, 270 Ill 66, 110 NE 341; Federal Life Ins. Co. v. Looney, 180 Ill App 488; Taylor v. Robertson, 27 F 537 (CCND Ill 1886) revd on other grounds sub nom. Green v. Taylor, 132 US 415.

The actual order of the court differs materially from the oral statement relied on by the plaintiff, for the order directs the master to report only on defendants’ motion to vacate the temporary injunction and no more. Examination of the record also reveals that the attorneys for the parties and the master himself understood that the sole purpose of the hearings was to rule on the motion for temporary injunction. That is best shown by the statement of the master at the June 19, 1963, hearing where he said:

“This suit has not been referred to me. The only thing referred to me, from what I can see from the Order of Court, was your petition to dissolve the injunction, and that is the only evidence I am listening to.”

Despite the fact that both parties presented evidence which bore on the merits of the case, we cannot overlook the vital requirement that there be a proper order of reference to the master. It does not follow however that all the evidence taken on the merits of this bitter controversy between former business associates should be stricken. The accuracy of the evidence heard by the master and certified by him in his report is not questioned. It would be a costly and unnecessary duplication to have that evidence reheard. The evidence as reported by the master shall stand as evidence on the merits of the case. The parties shall have the right to present additional evidence either before the court or the master if the case is referred to a master in chancery pursuant to Paragraph 8, Schedule, Article 6 of the Illinois Constitution as amended, effective January 1, 1964.

The decree insofar as it denies defendants’ motion to dissolve the temporary injunction is affirmed. In other respects it is reversed and the cause is remanded with directions to take such other and further proceedings as are consistent with the views herein expressed.

Decree reversed in part and affirmed in part and cause remanded with directions.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald Evans, Defendant-Appellant.
    Gen. No. 50,930.
    First District, Third Division.
    June 29, 1967.

      Clarold L. Britton, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was indicted for the robbery of a service station. Prior to trial he filed a motion to suppress a confession on the ground of involuntariness. This was denied. He was thereafter tried by jury, convicted and sentenced to serve from two to six years in prison. He contends that he requested and was denied counsel during the period of interrogation when the confession was obtained. He further contends that the State failed to prove him guilty beyond a reasonable doubt. The facts follow.

During the early morning of April 26, 1964, three men robbed Sibley Service Station in Harvey, Illinois. One man waited in the car while the other two held the station attendant at gunpoint and robbed him of about $75. As the robbers fled from the station in the car, the attendant grabbed a shotgun, ran out and fired one shot as the car disappeared down the street. Shortly thereafter the car was found abandoned at the scene of an accident. Investigation revealed that it was registered in the name of the defendant. The police later discovered that defendant had reported the car stolen at 9:00 a. m. on April 26, 1964 (about five hours after the robbery).

Three days later the police contacted the defendant and told him his car had been located in Harvey, Illinois, and that he could pick it up at the police station. Defendant went to the station accompanied by Melvin Watts, Richard Williams and Garcia Ruez. The police then told defendant that he had been identified as a holdup man and they asked all four men to submit to identification in a lineup of seven men. The service station attendant identified the defendant and Melvin Watts as participants in the robbery.

The defendant testified that he asked the police for permission to call a lawyer, but was told he could not call anybody until they (the police) were ready for him to do so. This testimony was corroborated by Melvin Watts. The third prisoner, Richard Williams, testified that he made a similar request for counsel. Defendant also testified that he was alone with Detective Cieciersky for a period of time and that during that time the detective questioned him roughly, hit him in the chest, slapped him and pulled him off his chair. Defendant said that he heard Watts crying in an adjacent room. Later on, when defendant and Watts were in the same room with Detective Cieciersky, another policeman entered the room and asked if they wanted a drink. He returned with a bottle of wine. Defendant testified that Cieciersky said, “No, not none of that stuff, bring in some good stuff.” The officer then produced a bottle of House of Lords Scotch whisky. Defendant and Watts drank the liquor and became thoroughly intoxicated.

Detective Cieciersky and Officer Ohrt testified that they did not beat the prisoners or ply them with liquor. They specifically denied that the prisoners had requested counsel.

At the conclusion of the hearing on the motion to suppress the confession on the ground of involuntariness, the court and counsel discussed the right of an accused to the assistance of counsel. The court concluded that the right to counsel is one which must be asked for by the accused. He also recognized that there was a dispute as to whether such request had been made. He did not decide the issue, but said, “I feel that on that point alone it is not a ground to suppress the confession but will be a question for the jury to determine.” The court then denied the motion to suppress.

The evidence presented at the trial consisted of the confession and the positive identification of defendant by the service station attendant. This was ample to support a finding of guilty beyond a reasonable doubt. It remains to be determined however whether the confession was obtained in violation of defendant’s constitutional rights.

When an investigation is no longer a general inquiry into an unsolved crime, but has -begun to focus on a particular suspect and the suspect is held in custody and submitted to interrogation which may elicit incriminating statements, he has a constitutional right to the assistance of counsel. No statement elicited in derogation of this right may be used against him. Escobedo v. Illinois, 378 US 478 (1964); People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33; People v. Kees, 32 Ill2d 299, 205 NE2d 729; People v. Lewis, 32 Ill2d 391, 207 NE2d 65. In this state however the defendant must show that a request for counsel was made by him or in his behalf. People v. Hartgraves, supra.

In the case before us the defendant testified that he requested counsel. The police testified that he did not. This relates directly to the admissibility of the confession and must be determined in the first, instance by the court. Illinois adheres to the “Wigmore” or “orthodox” procedure, under which the judge first hears the evidence outside the presence of the jury for the purpose of determining the admissibility of the purported confession. If the court admits the confession, the evidence with respect to the circumstances under which the confession was given is submitted to the jury and they consider its voluntariness, as affecting its weight or credibility, in reaching their verdict. People v. Miller, 13 Ill2d 84, 148 NE2d 455; People v. Fox, 319 Ill 606, 150 NE 347; see 3 Wigmore, Evidence (3d Ed, 1940) § 861. The rationale of this involved procedure arises from the apprehension that the jury might confuse the issue of voluntariness of the confession with the issue of guilt or innocence. Therefore a hearing apart from and presumably uninfluenced by the issue of guilt or innocence is left to the court.

In the instant case the court should have first determined whether defendant asked for counsel at the time of or before the interrogation and should then have determined the. issue of the voluntariness of the confession. This the court did not do. The procedure to correct this error is set forth in People v. Beattie, 31 Ill2d 257, 201 NE2d 396; and People v. Jackson, 31 Ill2d 408, 202 NE2d 465. Approved by the United States Supreme Court in Jackson v. Denno, 378 US 368 (1964) and in Sims v. Georgia, 385 US 538 (1967) where the court said, at pp 543-544:

“A constitutional rule was laid down in that case [Jackson v. Denno] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.”

The cause is remanded with directions to conduct a new preliminary hearing on the motion to suppress the confession, but if after hearing all relevant evidence, including that with respect to the request for counsel, the trial court suppresses the confession as evidence, the judgment shall be set aside and a new trial granted. If however the motion to suppress is denied, then as was directed in People v. Jackson, supra, a new final judgment of conviction shall be entered.

Cause remanded for further proceedings in accordance with the views herein expressed.

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