text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harvey Honey, Defendant-Appellant.
    Gen. No. 50,443.
    First District, Fourth Division.
    March 25, 1966.

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

delivered the opinion of the court.

The defendant was indicted for murder; he pleaded not guilty, and in a jury trial was convicted of voluntary manslaughter and sentenced to serve a term of two to ten years in the penitentiary. The defendant testified in his own behalf as follows: He was 17 years old and weighed 164 pounds; he came from Greenwood, Mississippi, and was working in Chicago during the summer while visiting his sister.

On July 11, 1964, William Phillips died as a result of being jabbed with a bed rail by the defendant. The deceased was approximately 26 years old and weighed about 200 pounds. It was stipulated that if the coroner’s physician were present he would testify that the deceased was approximately 5 feet four inches tall; a police officer testified that in his opinion the deceased was approximately 6 feet tall.

It appears from the record that on July 7, 1964, the defendant and Phillips had a fist fight, and the defendant successfully stopped Phillips from beating an old man without provocation or reason. The defendant’s testimony was that on July 8 he again met Phillips, at which time Phillips said he was going to get even with the defendant, and drew a gun from his pocket. The defendant ran from him. He testified that on July 11, the date of the homicide, he, the defendant, was waiting behind a tavern for trucks he was to unload, when Phillips arrived and snatched a package of cigarettes from the defendant and put them in his pocket. He then told the defendant he was going to get even with him for the fight on Tuesday. He started cursing the defendant and swung a quart bottle of beer at him; he then dropped the bottle to the ground and, calling the defendant by an obscene name, said, “I told you I was going to kill you,” and then reached toward his pocket. The defendant “turned around to run” but he “was sort of cornered, like”; Phillips was rushing him with his hand in his pocket, and the defendant picked up one of the bed rails from the ground and jabbed Phillips in the jaw, and Phillips fell down. The defendant took some water out of a pail which was there and poured it on Phillips to see if he could revive him; he then got scared and started walking away.

Charlie Hill, the State’s only eyewitness, appeared on the scene in time to see the defendant jab at Phillips with the bed rail and he yelled at the defendant. Hill testified that after Phillips had fallen to the ground Harvey poured water on his face in an attempt to revive him. Hill saw nothing of what had happened before the defendant jabbed at Phillips with the bed rail. Hill testified that when the defendant jabbed at Phillips with the rail Phillips had raised his hands.

Richard Watson, a Chicago police officer, testified that he did not see the defendant strike the deceased; that in response to a radio message in his car he went to the place where the incident occurred. He was asked, “Do you know whether the deceased had any weapons on his person at the time he was struck by the defendant?” His answer was: “I wouldn’t be aware as to whether he had any weapons on him, because I figured he was an injured man and needed medical attention.”

After the deceased was taken to the hospital the police officers arrested the defendant who was identified by Charlie Hill. Rockford Sturgill, a second police officer, testified that he went to the location in question and found that the defendant was suspected of having caused the injury; that he saw the injured man at the corner of Oak and Larrabee Streets.

Edward Nickels, another police officer, testified that he was assigned to investigate the death of Phillips and he went to the hospital where the deceased had been taken.

Chapter 38, section 7-1 of Illinois Revised Statutes 1965, provides:

“§ 7-1. Use of Force in Defense of Person.] A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Section 7-14 provides:

“§ 7-14. Affirmative Defense.] A defense of justifiable use of force, or of exoneration, based on the provisions of this Article is an affirmative defense.”

Section 3-2 provides:

“§ 3-2. Affirmative Defense.] (a) ‘Affirmative defense’ means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.”

The defendant had introduced sufficient evidence to establish a plea of self-defense. Considering the record as a whole, it is apparent that the State did not prove the defendant guilty beyond a reasonable doubt. The judgment of the Criminal Division of the Circuit Court of Cook County is reversed.

Reversed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    Rita Piacentini, a Minor, by Marcia Piacentini, her Mother and Next Friend, Plaintiff-Appellant, v. Sterne S. Bonnefil, Jr. and Poor Sisters of St. Francis Seraph of the Perpetual Adoration, Inc., an Indiana Corporation, Defendants-Appellees.
    Gen. No. 50,534.
    First District, Fourth Division.
    March 25, 1966.
    Rehearing denied by Appellee April 21, 1966.
    Rehearing denied by Appellant May 25, 1966.

      Morgan, Halligan, Lanoff & Cook, of Chicago (John A. Cook and Samuel M. Lanoff, of counsel), for appellant.
    Howard and French, of Chicago (Richard G. French, of counsel), for appellee, Sterne S. Bonnefil, Jr.; Baker, McKenzie & Hightower, of Chicago (Michel A. Coccia, Thomas F. Bridgman and Francis D. Morrissey, of counsel) , for appellee, Poor Sisters of St. Francis Seraph of the Perpetual Adoration, Inc.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff, a minor, by her mother and next friend, brought an action for malpractice and alleged in her complaint, first, that the defendants negligently permitted a gauze sponge to remain in her body after an appendectomy or during and after a follow-up corrective operation and, second, that defendant Bonnefil was negligent in his treatment and diagnosis of plaintiff before the operation. After the plaintiff had presented all of her evidence a judgment was entered in favor of the defendants following verdicts returned by the jury upon the direction of the trial judge, from which plaintiff now appeals.

Plaintiff first became a patient of Dr. Bonnefil on March 31, 1958, at which time she was treated for an infection of the genital organs. She was subsequently treated for various conditions four times before November 29, 1958, by either Dr. Bonnefil or his associates, the last date being November 28 at which time her condition was diagnosed by an associate as being an upper respiratory infection. On November 29, 1958, plaintiff (then approximately three years old) was taken to the defendant doctor’s office by her mother because she (plaintiff) looked very pale and white, had pain on the right side of her stomach and was vomiting occasionally but there is no testimony as to which if any of these symptoms were told to the doctor. His records pertaining to the condition of the plaintiff on that date contained the notation “Questionable abdominal pain. Question of mesenteric adenitis.” The illness of the child continued and a blood count was taken which “fitted with the diagnosis of mesenteric adenitis and it fitted with the diagnosis of a respiratory infection. It did not fit very well the diagnosis of appendicitis. . . .” On March 4 the doctor did not exclude the possibility of appendicitis and on the evening of March 5 he decided to hospitalize the plaintiff because she was complaining more of having pain. The doctor told plaintiff’s parents to bring her to St. James Hospital (which was operated by the defendant corporation) early the next morning; that “there was no necessity of getting her to the hospital that evening because it was not a typical case of appendicitis.” After the child was hospitalized on the morning of March 6 Dr. Driscoll was called in as a consultant and was told that the child had “nausea and anorexia.” An appendectomy operation was performed by Dr. Bonnefil that day and the appendix was found to be in the retrocecal position. It was inflamed, enlarged and perforated and had ruptured twelve to twenty-four hours prior to the operation. During the operation and while the abdominal cavity was open the doctor used surgical gauze sponges, each of which was four inches by four inches and had a black line of radio-opaque material running through it. There is no testimony that any other type of sponge was used during the operation or that any sponges were used inside the abdominal cavity. The abdominal cavity was closed upon completion of the operation. The plaintiff was discharged from the hospital on March 12, 1959, but returned on March 26 to enable the doctor to perform an operation to remove an abscess at the incision. A drain was inserted by the use of forceps. Gauze sponges, which did not have the radiopaque material in them, were used during this operation to “blot out the pus and wipe the pus that was coming out,” but there was no testimony that they were used inside the abdominal cavity, which remained closed. Dr. Bonnefil, examined pursuant to section 60 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 60), testified that:

The abscess was very superficial. It was immediately under the skin layer. It was above the muscle. Between the muscle and the skin. It didn’t extend below that to any other organs or into the abdomen. ... I made an incision about 3 to 3inches along the same incision line. ... I cut about % of an inch deep, the thickness of the skin. At no time did I cut through the lower layer. After the cut was made the pus came out. It was explored with my finger. I introduced the finger into the incision to explore the inside of the cavity to make sure there was nothing else. I felt inside all around to make sure that the abscess was superficial, that there was no connection between the cavity under the skin and the abdominal cavity internally. I was satisfied that there was no such connection. ... I could feel everything was all right with the finger. I did not feel any foreign object in the wound.

The dressing on the wound was required to be changed at least twice daily and, since plaintiff was discharged from the hospital five days after the operation, this was done at the plaintiff’s home by Dr. Bonnefil and also by Carol Anderson, a medical assistant to another physicían. Each day during the period that Carol Anderson changed the dressing there was a strong odor and greenish discharge emanating from the incision. On either April 12 or 15 the doctor removed the drain and on approximately April 17 Carol Anderson noticed a piece of gauze, which had worked its way out of the wound, protruding through the opening of the incision and “it had green matter.” Dr. Bonnefil was notified and at his direction plaintiff was taken to St. James Hospital where a gauze sponge, eight to ten inches long (which was longer and thicker than that used at home), saturated with green blood-like pus and blood, and which did not have the radio-opaque material running through it, was removed and thrown away.

The plaintiff in a malpractice action has the the burden of proving that the doctor was unskillful and negligent and in addition that this want of skill and care caused the injury to the plaintiff. Wade v. Ravenswood Hospital Ass’n, 3 Ill App2d 102, 120 NE2d 345. The test by which a plaintiff's evidence is judged when subjected to a motion for a directed verdict is whether there is any evidence or reasonable inference arising from that evidence tending to prove the cause of action alleged in the complaint. Scardina v. Colletti and Norwegian American Hospital, 63 Ill App2d 481, 211 NE 2d 762.

Plaintiff first argues that Dr. Bonnefil was negligent in his preoperative diagnosis and claims that the court erred in sustaining objections to nine hypothetical questions asked of the expert witness, Dr. Lawrence, as to the standard of care. We have examined these questions and find no error in the rulings of the court. Since there must be some evidence tending to prove each of the facts assumed in a hypothetical question (Chicago & E. I. R. Co. v. Wallace, 202 Ill 129, 66 NE 1096; Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633), hypothetical questions Nos. 8, 9, 10 and 11 were properly rejected by the court because they assumed a fact not in evidence. Questions Nos. 12 and 15, which inquired whether it would be usual and customary to hospitalize the child at various times prior to March 6, were properly rejected since even an affirmative answer would not give rise to an inference that the doctor was guilty of negligence in not hospitalizing the child until March 6. Question No. 16 which inquired whether there would have been a greater opportunity to avoid a ruptured appendix if the patient was hospitalized on March 4 rather than March 6, was properly rejected for the same reason. With respect to questions Nos. 13 and 14, no offer of proof was made and therefore the propriety of the rulings thereon are not properly before a court of review. In re Estate of Garner, 8 Ill App2d 41, 130 NE2d 219; Grosh v. Acom, 325 Ill 474, 156 NE 485.

There was no other evidence offered as to Dr. Bonnefil’s negligence in his preoperative diagnosis. We believe that all reasonable men would reach the conclusion that the evidence and reasonable inferences therefrom did not establish the doctor’s guilt of that negligence.

Plaintiff next attempted to establish that a gauze sponge was left in her body during the appendectomy or the follow-up corrective operation because of the negligence of either or both of the defendants. Dr. Bonnefil, called as a witness under section 60 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 60), testified that a wound of this nature (referring to the plaintiff’s incision) does not have a tendency to draw things into it. An objection was sustained as to hypothetical question No. 7 asked of the expert witness Dr. Lawrence (whereby the plaintiff sought to establish the same general point) which stated:

Doctor, assume that a three year old child had a drainage situation from a wound which was open on March 25, 1959 following a prior appendectomy at the same site which was closed on that date, prior appendectomy having been on March 6, 1959; assume, Doctor, that after this wound was open and during the period which it was draining, which period went from March 25, 1959 until the date which I will specify on which a foreign — some gauze was removed from the wound. During that period the wound was dressed by applying four by four standard gauze bandages, Johnson & Johnson packaging, over the wound in layers from three to five inches thick, covered over with adhesive and changed twice or three times a day by either a technician or by a physician.
And do you have an opinion, Doctor, based on reasonable medical and surgical certainty, as to whether any of the dressing pads, the four by four pads which I have mentioned might or could have worked its way into the wound between one dressing period and the next ... so that the material that worked its way into the wound which was similar, excepting that it was four by four, to Plaintiff’s Exhibit Number 2 [a Johnson & Johnson gauze pad box, the gauze being the same kind of dressing used by her], appeared so that only a small corner appeared above the wound and that the rest was in below the surface of the wound and below the skin.
Do you have an opinion, Doctor, as to whether— based on reasonable and medical surgical certainty whether any such dressing might or could have worked its way into the wound in that manner?

Defendants made only a general objection to this hypothetical but now urge in their respective briefs that the question was improper because (1) it did not include certain relevant undisputed facts which were in evidence (though neither party specifies these facts); (2) the question required a speculative answer; and (3) that no proper offer of proof was made and therefore the issue as to the propriety of this hypothetical was not preserved for review. In Chicago & E. I. R. Co. v. Wallace, 202 Ill 129, 66 NE 1096, it was contended that the trial court erred in refusing to sustain objections to certain hypothetical questions. After noting that only a general objection was made to the questions the court stated at pages 132, 133:

It is a well settled rule in this State, that a general objection to a question asked of a witness is not sufficient, where the defect is one that could be obviated in case a specific objection were made .... The rule . . . has been held to apply to such hypothetical questions as are here under consideration.

In Chicago City Ry. Co. v. Bundy, 210 Ill 39, 71 NE 28, the court stated at page 46:

Objection is also made to some of the hypothetical questions put to physicians who testified on behalf of appellee. These objections, made in the trial court, were not sufficiently specific to sustain the special objection here sought to be raised.

If the specific objections which are raised in this court for the first time by the defendants with respect to the exclusion of undisputed facts and the speculative nature of the answer were made during the trial, any such errors in the hypothetical question could have been obviated at that time. Therefore the objection made as to this hypothetical question was improper and should not have been sustained.

Plaintiff’s offer of proof on the aforesaid question, which was held to be in proper form by the trial judge, provided as follows:

And if permitted to answer the physician would have testified that he had an opinion on that subject. And then in answer to the next question, which would have been what his opinion was, the witness would have testified that in his opinion a dressing placed flat over a wound would not or could not be expected to work its way into the wound; that this would be contrary to the normal action of the body, and there would be nothing in the wound which would tend to draw anything into it and certainly not into an incision in which a four by four gauze was lodged below the surface of the skin so that only a corner thereof was protruding.

We would also point out that the ultimate question (in hypothetical question No. 7) asked of the witness was proper. Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582.

Carol Anderson, who attended the plaintiff at home, testified that she has been employed as a medical assistant to Dr. Charles Baer for ten and one-half years; that her duties consisted of taking case histories and assisting him “in injections, blood counts, do urinalysis, and dressings and all around routine”; that on numerous occasions she observed and assisted in the dressing of wounds in Dr. Baer’s office; that she changed the dressings on plaintiff’s wound twice each day; and that she is familiar with the appearance of wounds of this character (referring to plaintiff’s wound). The witness was then asked:

Now, do you have an opinion as to whether anything could have been placed into the wound inside the body from the outside?

An objection to this question, which was sustained, was based upon the ground that “he [plaintiff’s attorney] is asking for opinion evidence which is speculative evidence from a lay witness. . . . Whether somebody could have placed this gauze in the wound is speculative.” The test of the competency of an expert witness is whether he discloses sufficient knowledge of his subject matter to entitle his opinion to go to the jury. Williams v. Piontkowski, 337 Ill App 101, 84 NE2d 843. The witness was properly qualified to answer this hypothetical question and it would not be speculative evidence for her to testify as to whether someone “could” have placed the gauze in the wound. Therefore the defendants’ objection was improperly sustained. The offer of proof on this question is as follows:

[S]he would have answered that it was impossible. It would have required procedures with using medical implements, and it would have caused the appearance of the wound — that would have been apparent.

The witness was asked another question to which a general objection was sustained:

As you dressed the wound during this period did you have occasion to see whether anything was working its way into the wound?

The objection, being general in nature, was improperly sustained. The offer of proof on this question was:

[S]he would have testified if permitted that during the time that she was dressing the wound she did not at any time observe anything working its way down into the wound or any such action on the part of the wound that she was dressing.

A directed verdict shall be granted where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more of the elements necessary to the cause of action. In considering the question of whether the trial court erred in directing a verdict for the defendants a reviewing court will consider only the evidence most favorable to the plaintiff but including evidence that was improperly excluded by the court. Reilly Tar & Chemical Corp. v. Lewis, 301 Ill App 459, 23 NE2d 243. Upon considering the evidence most favorable to the plaintiff, including the evidence that was improperly excluded by the trial court, we find that a prima facie case against the defendant corporation was not established. There is no evidence that the type of sponge which was removed from the plaintiff’s body was used at any time during the appendectomy on March 6 and by stipulation of the plaintiff’s attorney no act of negligence occurring on any other date was charged against the hospital. Therefore the order of the court directing the jury to return a verdict in favor of the defendant corporation was proper.

However, there is no question but that a piece of gauze was removed from the plaintiff’s body. We believe that under the evidence and favorable inferences therefrom, reasonable men could have differed as to whether the gauze sponge which was removed from the plaintiff’s body could have entered the wound in the course of the follow-up corrective operation. If a sponge was left in the plaintiff’s body she has established a prima facie case of negligence against the doctor and the burden of coming forth with the evidence then shifts to the defendant doctor. Hall v. Grosvenor, 267 Ill App 119. Therefore the order directing the jury to return a verdict in favor of Dr. Bonnefil was improper.

Although not necessary to our holding in this case, we would point out that a party who calls a witness under section 60 of the Civil Practice Act is not bound to vouch for the veracity of such witness and may introduce any competent evidence in direct contradiction of his testimony, but is bound by any testimony of the witness which stands uncontradicted and unrebutted. Kapraun v. Kapraun, 12 Ill2d 348, 146 NE2d 7. Therefore material facts testified to by Dr. Bonnefil under the section 60 examination which were not contradicted or rebutted must be included in plaintiff’s hypothetical questions.

The judgment of the trial court in favor of the defendant corporation is affirmed. The judgment in favor of Dr. Bonnefil is reversed and the cause remanded for a new trial in a manner not inconsistent with the views expressed in this opinion.

Affirmed in part, reversed and remanded in part.

ENGLISH and McCORMICK, JJ., concur.

       Dr. Bonnefil testified that:
      Mesenteric adenitis is a condition where the lymph nodes inside the abdomen are swollen. It is a virus infection usually following an upper respiratory infection.

       These were hypothetical questions Nos. 8 through 16. Seventeen questions were submitted to Dr. Lawrence, the first seven and the last of which related to operative and post-operative circumstances.

       Mr. Bridgman (for the hospital): I have an objection, your Honor.
      Mr. French (for Dr. Bonnefil): Objection.

        The colloquy at the beginning of the trial during which that stipulation was made is as follows:
      Mr. Bridgman [attorney for the hospital]: Again, Mr. Cook, in order to make my position clear, the only negligence you have charged against my client and will present during the trial of this case is the alleged negligence in leaving this sponge or foreign material in the abdomen—
      Mr. Cook [plaintiff’s attorney] : That’s right.
      Mr. Bridgman: — of the child during the appendectomy performed on March 6th of ’59. Is that correct ?
      Mr. Cook: That is correct.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Carter, Defendant-Appellant.
    Gen. No. 50,327.
    First District, First Division.
    April 11, 1966.

      Emilie N. Wanderer, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a jury trial, defendant, John Carter, was found guilty of the unlawful sale of narcotics. On appeal, defendant’s principal contention is that the evidence was insufficient to prove him guilty beyond a reasonable doubt.

The conviction is based on the testimony of an informer and a police officer. The informer was Theodore Hall, an admitted narcotics addict and ex-convict, who had been an informer in “over 120 cases ... over a two year period of time.”

At approximately 5:00 p. m. on November 23, 1963, Hall went to police headquarters at 1121 South State Street, Chicago, and met Chicago Police Officers McKelvey and Tobin of the Narcotics Bureau. Hall was searched and examined, and all of his money was taken by one of the police officers for safekeeping. In his presence, the officers recorded the serial numbers of ten one-dollar bills. At about 8:00 p. m., the two officers and Hall proceeded to the area of Division and State Streets. Officer McKelvey gave Hall the recorded bills, and Hall entered DeMarco’s Restaurant at 9 West Division and took a seat at a lunch counter, where there were four or five other persons seated. The two officers took positions outside the restaurant and kept Hall under surveillance through the window.

After about 20 or 30 minutes, the defendant, John Carter, emerged from the back of the restaurant, and Hall met him in front and they took a cab to Chicago Avenue and Cambridge, where they left the cab. They walked north a short distance, turned west at a corner, and entered defendant’s apartment. While in a small entranceway, Hall gave defendant the recorded bills, and defendant went upstairs. Hall saw “an old woman in the kitchen by the sink, and I heard a woman’s voice upstairs and John Carter’s voice.” Defendant returned shortly, and while they were in the entranceway he gave Hall a tin-foil package. They walked back to Chicago Avenue and took a cab back to Division and State, where defendant returned to the restaurant and Hall went over to the officers and handed Officer Tobin the tin-foil package. The officers followed them on both cab trips and saw them while they were walking on Canbridge, but lost sight of them when they turned west at a corner and did not observe them again until they returned on foot and entered the second cab.

The officers field-tested the contents of the tinfoil package and found narcotics. The officers then proceeded to DeMarco’s Restaurant and arrested defendant. They searched defendant, the restaurant and his home and did not find the prerecorded bills or any additional narcotics.

After a guilty verdict was returned and before sentence was imposed, the State showed in aggravation defendant’s 1955 and 1959 convictions for unlawful possession of narcotics, and defendant, in accordance with paragraph 22-40, Chapter 38, Illinois Revised Statutes 1963, was then sentenced to the penitentiary for a term of from 10 years to life.

Defendant relies on People v. Bazemore, 25 Ill2d 74, 182 NE2d 649 (1962), and People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1959), in support of his contention that corroboration is required when the evidence of sale is the testimony of an informer who is an addict.

In Bazemore, the addict informer returned to the police, who were stationed about a block away, with two tinfoil packages which contained narcotics. After receiving a description of the seller and information as to where the sale had taken place, the police made a search of the area but found no trace of defendant. The informer testified he next saw defendant two months later in the same vicinity and reported to one of the police officers, whom he found seated in a police vehicle a short distance away. Defendant was apprehended at that time. No narcotics were found on his person, nor was any of the inventoried money ever recovered. There, in reversing the conviction, the court said (pp 76, 77):

“Where, as here, the State’s case rests solely upon the credibility of an admitted narcotics addict, a trial court, and in the final analysis this court, must carefully and closely scrutinize the testimony of the witness. . . . Although it does not necessarily follow that his testimony must be disbelieved, . . . the fact that a witness is a narcotics addict has an important bearing on his credibility. ... A further circumstance in this case, which goes to the credibility of the witness, is the fact that the informer was not kept under any surveillance by the police as he went about making the controlled purchases of drugs. . . . This is not a case where the informer’s accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused, but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one.”

The Bazemore pronouncements, while pertinent, do not require a reversal here. The guidelines to be used here are set forth by this court in People v. Romero, 54 Ill App2d 184, 203 NE2d 635 (1964), at page 188:

“Although the testimony of a narcotic addict is scrutinized with caution, his testimony may be sufficient to sustain a conviction if it is credible under the surrounding circumstances. . . . The test is not whether an addict informer’s testimony is uncorroborated, but whether his testimony is credible under the surrounding circumstances.”

Defendant contends there was no such continuity in the surveillance of the informer to prove beyond a reasonable doubt that he had not had “an opportunity to have some transaction with a person other than defendant.” Defendant argues that in the restaurant, Hall may have transferred to the counterman “the prerecorded funds and obtained the narcotic drug, and then, to divert attention from his source of supply, . . . implicated the defendant,” and further, “it was not the responsibility of the defense to explain what had actually happened” at defendant’s home “since there was no testimony other than that of the informer that a sale of a narcotic drug had occurred there.” We note here, however, that with the exception of these two periods, the defendant and the informer were together under the constant surveillance of the police from the time they left the restaurant until they returned, when the informer delivered the tinfoil package to the police officers, and defendant was arrested in DeMarco’s.

We agree that the testimony of a narcotics informer should be closely scrutinized, but the test is “whether his testimony is credible under the surrounding circumstances.” In the instant case there was an immediate arrest of defendant, after a fairly close surveillance of both the informer and the defendant. The informer had no narcotics when he initially left the police car and did have narcotics when he returned, which he testified he purchased from defendant. Under the surrounding circumstances of this case, we believe the credibility of Hall, an admitted narcotics addict and ex-convict was primarily a question for the jury. In People v. Romero, this court said (p 189):

“This court will not substitute its judgment on the matter of the credibility of witnesses and the weight to be given their testimony where the trier of fact saw and heard their testimony, unless we can say that the proof was so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt.”

As we cannot say that the proof in this case was so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt, we see no reason for disturbing the guilty finding.

Defendant further contends that the indictment was insufficient in law, and that defendant was prejudiced by the remarks of the State’s Attorney, who characterized the defendant as a “dope peddler,” and that the “patent prejudice of the trial judge induced the verdict of the jury.” We find these contentions are without merit. As to the sufficiency of the indictment, we note that it meets the requirements set forth in the recent Supreme Court Case of People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965). As to the conduct of the State’s Attorney and trial judge, we have examined the record and find no prejudicial error. See People v. Lopez, 10 Ill2d 237, 240, 139 NE2d 724 (1957).

We conclude the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt, and that he received a fair trial. The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: ME. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul H. Musselman, Defendant-Appellant.
    Gen. No. 50,514.
    First District, First Division.
    April 11, 1966.
    Rehearing denied May 21, 1966.

      Arnold and Kadjan, of Chicago (Daniel N. Kadjan, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE MURPHY

delivered the opinion of the court.

In a complaint defendant was charged with the statutory offense of “unlawful use of weapons.” In a bench trial he was found guilty as charged and was fined $200 and costs. The fine and costs were suspended and his “gun confiscated.”

The complaint alleged that on or about November 24, 1964, at Burger King parking lot, 180th and Halsted, Glenwood, Illinois, Cook County, defendant “knowingly carried and possessed a dangerous or deadly weapon (J. C. Higgins 22 cal. rifle), with intent to use the said weapon unlawfully against another,” in violation of Chapter 38, Section 24-1(2), Illinois Revised Statutes. This section provides:

“Unlawful Use of Weapons.] (a) A person commits the offense of unlawful use of weapons when he knowingly: ... (2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto or any other dangerous or deadly weapon or instrument of like character; . . . .”

On appeal, defendant contends that “the judgment of the court is contrary to the evidence inasmuch as the State failed to prove beyond a reasonable doubt that defendant had the requisite state of mind (intent) to commit the crime charged.”

A police officer, the only witness for the State, testified that on November 24, 1964, at approximately 10:00 p. m., he saw the defendant “in a kneeling position with a ’22 rifle with a telescope sight aiming directly at a group of people at the Burger King Restaurant at 185th and Halsted Street. . . . There was a line there and he had the weapon pointed directly at the line” — people “waiting to be served.”

The officer further testified that the defendant was approximately 50 to 75 feet from the restaurant when he was pointing his rifle, and after he was arrested, defendant told him he was with a lot of people, although the officer saw no one else there at the time.

On cross-examination, the officer testified that he did not ascertain “whether the weapon was loaded at the time it was pointed,” and as far as he knew, “it was not loaded.” No ammunition was found in the weapon after the arrest.

Defendant testified, “We were going hunting the next day and they have a shot gun too which isn’t present and I had those over there. I hadn’t fired the 22 in over a year. I was looking at it and looking through the chamber as far as firing. As far as a line, I didn’t see any line. There’s a little thing on top of the building which I was aiming at.” He denied that he was aiming at any people or personnel. He volunteered a statement, “Your honor, he keeps saying I pointed it at a line of people. No one can say I was pointing at a line of people. No one looked down the sight with me. ... I can’t recall whether a line was there. I am there every night. It is just a meeting place.”

Defendant argues, “all that the State has proved directly is that the Defendant pointed an empty rifle at a restaurant seventy-five feet away from him.” Defendant asserts that the statute requires proof of the specific intent to use the weapon unlawfully against another, and intent must be proved in order to obtain a conviction. Cited in support is section 4-4 of the new Criminal Code, which defines “intent” as follows:

“A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.”

Cases cited include People v. Fernow, 286 Ill 627, 122 NE 155 (1919), and People v. Murff, 29 Ill2d 303, 194 NE2d 226 (1963).

Defendant further argues “that the means employed by defendant would not result in any unlawful use of the weapon against other persons; he could not shoot them, the gun was not loaded, he could not strike them, he was too far away, he did not assault anyone, because there is no testimony demonstrating that he did. Clearly, the State must prove his guilt, he need not prove his innocence. The defendant’s only conscious objective, from the evidence presented, is as Defendant testified — to re-familiarize himself with his weapon for the next day’s hunt.”

The State argues that the defendant’s intent was clearly shown by the circumstances adduced at the trial. Cases cited include People v. Johnson, 28 Ill2d 441, 192 NE2d 864 (1963), a burglary case, where it is said (p 443):

“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. . . . Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose.”

The State further argues that the trial court, as the finder of fact, did not believe the defendant’s story, and the judgment should be affirmed.

From our examination of this record, we think the testimony of the police officer that the defendant, at ten o’clock at night, was kneeling and looking down the telescopic sight of a rifle pointed at a group of people, was sufficient credible evidence of “conduct appraised in its factual environment” from which, “grounded in human experience,” any reasonable person would be justified in the assumption that defendant’s intent was to unlawfully use the rifle, a dangerous or deadly weapon, against the group of waiting customers at whom the rifle was pointed. As stated in the Committee Comments to article 24, Smith-Hurd Illinois Annotated Statutes, ch 38, art 24, p 364:

“The possession and use of weapons inherently dangerous to human life constitutes a sufficient hazard to society to call for prohibition unless there appears appropriate justification created by special circumstances.”

Proof that the rifle was loaded should not be required before an inference can be drawn that defendant intended to use it unlawfully. See People v. Clark, 30 Ill2d 216, 195 NE2d 631 (1964), at p 219:

“Here, there was credible evidence fully establishing defendant’s guilt of the crime charged and, what is more, the trial court could properly consider the improbabilities in defendant’s explanation and his presence at the scene of the offense.”

We hold that the evidence here was sufficient proof of the offense charged in the instant complaint.

For the reasons given, the judgment is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles E. Chambliss, Defendant-Appellant.
    Gen. No. 50,529.
    First District, First Division.
    April 11, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Charles E. Chambliss, was found guilty of robbery of one Michael Regilio on September 18, 1964, and guilty of theft from one Sol Regilio on September 22, 1964, in a combined bench trial. He was sentenced to the penitentiary for two years on the robbery charge. He was given probation, the first six months to be served in the county jail, on the theft charge. The sentences were to run concurrently.

In this appeal, defendant seeks reversal claiming that the story of each offense was improbable, and the state’s evidence inadequate to prove the crimes were committed or that defendant committed either of them.

Michael Regilio testified that in the early morning of September 18, 1964, he left the Jackpot Tavern on West Madison Street in Chicago, and when about four or five feet out of the tavern he felt somebody take his wallet out of his pocket. “They” also took thirty dollars from his front pocket. He chased a man, whom he identified as the defendant, five or six feet, threw a punch at him and the man turned around to punch back and missed. Somebody grabbed Regilio from behind. He fell and sustained a leg fracture. Defendant, with the wallet in his hand, continued to walk some “two doors away from this tavern.” Regilio pleaded with him for the return of the wallet because it contained some personal papers. Defendant took his time looking through it, then came over “and I looked at him and lie threw the wallet at me.” Regilio lay on the walk until the police arrived and removed him to a hospital where he had a cast put on his broken leg. He remained at the hospital for some time, and three or four days after the occurrence he identified a photo of the defendant. He said his brother, Sol Regilio, did visit him at the hospital and was told the “story.”

On cross-examination, Regilio testified that he had never seen defendant before the incident; that at that time it was dark and defendant wore a dark shirt and dark trousers; that he did not know who caused him to fall because he “couldn’t see behind” as he was facing the defendant; that at the hospital he described to the police the person who took the wallet as having high cheekbones, straight firm nose and that the man was about his height and weight.

Sol Regilio testified that he had a conversation with his brother Michael at the hospital. A couple of days later he went to the Jackpot Tavern and conversed with Pete the owner. He then began an inquiry for Chug-o-lug, a name by which defendant was known along Madison Street. After a night and a morning of searching he learned that Chug-o-lug was jailed at the Monroe Street police station for being drunk. At the station Sol was told that defendant was on the work detail and would soon be released. When defendant came out, Sol told him he was sent by Big Bill, defendant’s friend, “to come and get you out.” He also informed defendant that they had to meet Big Bill that morning. Sol further testified that they drove to a tavern on Clark Street where “I told him, ‘say, this fellow that you jackrolled and broke his leg,’ I says, ‘say I talked to Big Bill and he says this guy had money, he knew he was a drunk, what did you do with the money?’ He says, T gave it to Big Bill’ he told me.” They then went to another tavern. Sol bought a few drinks and put six dollars change into his right-hand pocket, the side on which defendant was sitting. He pretended being tired and sleepy, putting his head on the bar. A few minutes later he felt defendant’s hand in his pocket and saw him taking out the six dollars. That was what he was waiting for. He traded punches with the defendant got him outside and had the police summoned. When the police came, defendant, who had been “out cold for about a minute or so” got up and was sitting on the fender of a parked car, with the money still in his hand.

Sergeant Paul Lacalamita testified that he was on duty during the morning hours of September 22, 1964, patrolling Clark Street. His attention was called by an unkown passerby to a fight on the street. He proceeded to 642 Clark Street and observed Sol and the defendant in front of the tavern. Defendant was sitting “on a car” with blood on his face. He was cut above the eyes and Sol was standing next to him. He reached into defendant’s pocket and found six single dollars.

On cross-examination he said he knew Sol for two and a half or three years as a bartender in several spots in the Clark Street District. Defendant was bleeding from one eye, the mouth and the nose, and was taken to the hospital.

Defendant testified that Sol approached him at the police station while he was on a work detail and was at that time mopping the floor. After Sol told him Big Bill sent him to get him out, defendant told Sol he wasn’t due to get out until about 12 o’clock noon and turned back to his mopping. Sol then gave the “turnkey” a five or ten dollar bill and defendant was let out. Sol told him that they were going to see Bill on the North side. They drove to Clark and Erie and entered the Shamrock tavern. After consuming a couple of drinks, defendant asked where Bill was. Sol appeared nervous and said Bill would be there shortly. When defendant became impatient and indicated that he would leave, Sol took him next door to another lounge and a little later to a third tavern. When defendant came back to the bar after making a phone call at the third tavern, Sol turned sideways toward the defendant. Defendant noticed Sol put his hand into his pocket, come out with some money, and turn to the bartender and say, “Say, did you see him go in my pocket and take out this money?” The bartender shook his head indicating in the affirmative. Sol then struck defendant in the head, he went down, and was struck with a bar stool sustaining a fracture of his right cheekbone. He was kicked in the ribs and beaten so that he had to have four sutures to his head and eight above his right eye. Since then his face is paralyzed. Defendant said he struggled to get loose and stumbled a short distance out of the tavern where he collapsed. A police car coming down the street spotted him and came over “real quick.” Defendant denied taking the money from Sol on September 22 and robbing Michael on September 18. He did not remember where he went or what he did on the latter day.

Defendant argues that the proof fails to indicate any use of force or threat of imminent use of force regarding the charge of robbery, which is an essential element of the crime as defined in the Criminal Code.

Ill Rev Stats, ch 38, sec 18-1 (1963) provides that:

a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.

This section of the new Criminal Code codified the previous law in Elinois on robbery and no change was intended. “Threatening the imminent use of force” was substituted for “intimidation” (which was used in the old statute, ch 38 sec 501) as more accurately reflecting this element of the offense as stated by the court in People v. Bodkin, 304 Ill 124, 136 NE 494 (1922). See Committee Comments, Smith-Hurd’s Annotated Stats, ch 38, sec 18-1.

In the disposition of this issue, it is therefore entirely proper to apply decisions and authorities rendered prior to the effective date of the new Criminal Code.

In the case of People v. Williams, 23 Ill2d 295, 301, 178 NE2d 372 (1961), relied upon by the defendant, the court held that:

With respect to defendant’s conviction of robbery, that crime is defined in our [old] statute as the felonious and violent taking of money or property from the person of another by force and intimidation. (Ill Rev Stats 1957, ch 38, par 501). The gist of that offense is the force and intimidation used in the taking from the person against his will (People v. Cassidy, 394 Ill 245); and the degree of force necessary to constitute robbery must be such that the power of the owner to retain his property is overcome, either by actual violence physically applied, or by putting him in such fear as to overpower his will. (Hall v. People, 171 Ill 540; People v. Ryan, 239 Ill 410; Steward v. People, 224 Ill 434.) . . . [Emphasis added.]

and in People v. Campbell, 234 Ill 391, 84 NE 1035 (1908) the court, on page 393, said:

The difference between stealing from the person of another, and robbery, lies in the force or intimidation used. (Hall v. People, 171 Ill 540.) In the absence of active opposition, if the article is so attached to the person or clothes as to create resistance, however slight, or if there be a struggle to keep it, the taking is robbery. (2 Bishop on New Crim Law, sec 1167; 1 Wharton on Crim Law 9 ed sec 854.) [Emphasis ours.]

The manner by which the property was taken from the person of Michael Regilio is commonly referred to as “snatching.” 77 Corpus Juris Secundum, Robbery, § 17, contains a study of this subject in relation to the offense of robbery and concludes as follows:

There is a conflict in the cases decided under the common law, and statutes substantially similar with respect to the element of force or intimidation, as to whether mere snatching of property constitutes robbery. According to one view such snatching, without further indication of violence, is robbery. Other authority, however, holds that mere snaching [sic] is not robbery, as where the property is snached [sic] so quickly as to allow no time for resistance. Irrespective of these conflicting views, the authorities unite in condemning snatching as robbery where there is concurrent intimidation, or actual violence in excess of mere snatching, as where the force used in snatching is so great as to knock the victim down, or where a physical struggle or blow accompanies the snatching. . . .

Again, in the 46 Am Jur, Robbery, sec 21, the following appears:

The authorities are agreed that a sudden taking or snatching may be accompanied by sufficient force to constitute robbery. Thus, if a struggle immediately ensues to keep possession of the property and the thief overcomes the resistance . . . the violence is sufficient to constitute the act a robbery.

In the instant case, the taking of the property from Michael Regilio’s person, his attempt to recover the property taken, instinctively seeking to apprehend the thief, and his being knocked to the sidewalk, sustaining a broken leg, were a continuous series of events constituting a single incident or occurrence. “The defense of felonious possession which is challenged immediately upon the forcible taking is a part of the plan of robbery, or, as the books express it, it is res gestae of the crime.” People v. Young, 214 Cal App2d 641, 29 Cal Reptr 595, 599 (1968); and see People v. Phillips, 201 Cal App2d 383, 19 Cal Reptr 839 (1962). In Phillips, although the sole force and fear employed by the robber was used in an effort to escape, it was held that that was an integral part of the robbery and enough to make the penal statute applicable. Defendant cannot deny that the victim had the lawful right to seek recovery of his property or that the attack upon him by someone from behind was not the result of a concerted action involving an accomplice, thereby imputing such conduct to him. In our opinion the evidence adduced at the trial regarding the events of September 18 adequately proved the essential elements necessary to constitute the crime of robbery.

Defendant further contends that he was not identified as the perpetrator of the robbery beyond a reasonable doubt. Michael Regilio testified that he observed the robber as he turned to throw a punch at him; watched him slowly walk a short distance away and leisurely look through the wallet as Regilio pleaded for its return, and that he saw the thief walk back and throw the wallet at him. He identified the defendant from a photograph shown him at the hospital and gave a detailed description of the defendant to the police. Evidently the description fitted the defendant at the trial as he does not contend otherwise in this matter. Where a conviction is based upon an identification by a single witness, whom the court in a bench trial believes positive and credible, a reviewing court will not reverse or substitute its own judgment even though the accused denies the charge. People v. Miller, 30 Ill2d 110, 195 NE2d 694 (1964); People v. Solomon, 24 Ill2d 586, 182 NE2d 736 (1962); People v. Pride, 16 Ill2d 82, 156 NE 2d 551 (1959).

In considering the judgment of conviction for theft allegedly committed against Sol Regilio on September 22, we are convinced that the circumstances which supposedly established the charge were so improbable that they give rise to a reasonable doubt that the theft occurred. It appears to us to be more of an endeavor on the part of Sol Regilio to seek retribution for a previous injury committed upon his brother; a stalking of the accused and a desire for revenge. The conviction of the theft cannot stand based upon such facts and circumstances as appear in this record.

Where the evidence of the prosecution is improbable, unconvincing and contrary to human experience, we do not hesitate to reverse a judgment of conviction. People v. Coulson, 13 Ill2d 290, 149 NE2d 96 (1958); People v. Dawson, 22 Ill2d 260, 174 NE2d 817 (1961); People v. Reese, 34 Ill2d 77, 213 NE2d 526 (1965).

The conviction of the crime of robbery charged as committed against Michael Regilio on September 18, 1964, is therefore affirmed, and the conviction for theft charged as committed against Sol Regilio on September 22,1964 is reversed.

Affirmed in part, reversed in part.

BURMAN and MURPHY, JJ., concur.

       California Penal Code, sec 211, defines robbery as: . . . the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.


author: MR. JUSTICE BURMAN

text:
    C. Jon Development Corporation, an Illinois Corp., Plaintiff-Appellee, v. The Pand-Rorsche Corporation, et al., Defendants. Evanston Motor Co., Inc., Defendant-Appellant.
    Gen. No. 50,590.
    First District, First Division.
    April 11, 1966.

      McMahon & Plunkett, and Charles R. Purcell, Jr., of Chicago, for defendant-appellant, Evanston Motor Co., Inc.
    Francis T. Delaney, of Chicago, for plaintiff-appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, C. Jon Development Corporation, commenced an action in replevin to recover a Mercedes-Benz automobile. Subsequently, an amended complaint was filed in trover seeking to recover from the Evanston Motor Company, Inc., the sum of $3,200 the money value of the automobile, and additional damages in the sum of $750 for the wrongful detention, use, and deprivation of the automobile. The trial court entered judgment for the plaintiff in the amount of $1,600 without costs, and Evanston Motor Company has appealed.

We summarize the evidence. Early in June of 1963, the plaintiff advertised a 1958 Mercedes-Benz automobile for sale in a Chicago newspaper. A representative of Pand-Rorsche Corporation, an automobile dealer at 5725 North Broadway Avenue in Chicago, responded by telephone, and at Pand-Rorsche’s request the car was brought to its premises. On June 6, a sale was effected, and William Patzer, plaintiff’s president, received from Pand-Rorsche a check for $1,000; a draft for $3,200 payable on July 7, 1963; and a letter signed by “Lee Thomas” (a false name), as president of Pand-Rorsche, which recited the terms of the sale and stated that the plaintiff was, “to remain legal owner of said vehicle” until the draft was paid in full. Patzer endorsed in blank the certificate of title to the car, and delivered it to Pand-Rorsche. The certificate bore no indication of any security interest in the vehicle. A new certificate of title was issued by the Office of the Secretary of State on June 14, showing Pand-Rorsche as the owner and listing no liens or encumbrances.

On June 15, 1963, Donald C. Lightner, a wholesale car buyer, visited Pand-Rorsche and purchased the Mercedes-Benz and several other automobiles on behalf of the defendant, the Evanston Motor Company. It is undisputed that at the time of the sale to the defendant, neither Lightner nor any other person associated with the defendant had notice of any existing security interests in the automobile. Lightner gave Pand-Rorsche defendant’s check dated June 17, in payment for the automobiles, and delivery of the cars and the titles thereto were made to the defendant. The certificate of title to the Mercedes-Benz, which was endorsed in blank by “Thomas” on behalf of Pand-Rorsche and acknowledged by a notary public who was employed by defendant, bore no indication of any existing liens or encumbrances.

Nicholas Ferri, a chief investigator for the Office of the Secretary of State, testified that his office uncovered the perpetration of fraud by Pand-Rorsche about June 18, and shortly afterwards put a “stop” on issuing certificates of title on any cars sold by Pand-Rorsche because, “there were so many strings and so many ends that were untied that the only way we could try possibly to stop this fraud was to put a stop on all Illinois processing.” On June 20 and 21, articles appeared in the daily newspapers reporting that Pand-Rorsche had been raided and closed as a fraudulent operation. Thereafter, Ferri had several telephone conversations with Joseph Saporito, president of defendant, in which Ferri told Saporito a “hold” had been placed in Springfield on any transfers of title to the Mercedes-Benz, and advised Saporito not to dispose of the car. Saporito testified he told Ferri he had paid for all of the cars he had purchased, and that he had good title to them. On July 10, Lightner was in Kansas City in response to a subpoena to appear as a government witness in a federal court, and while there he sold the car for $3,200, on behalf of the defendant and with the express approval of Saporito.

The question presented by this appeal is whether under these circumstances the security interest reserved by plaintiff in selling the automobile to Pand-Rorsche can be enforced against the defendant, a subsequent purchaser who had no notice of the plaintiff’s interest. The Illinois Motor Vehicle Law (Ill Rev Stats 1963, c 95%) establishes the method for perfecting and giving notice of security interests subject to that act, and provides that such method is exclusive. Ill Rev Stats 1963, c 95%, § 3-207. Section 3-202 of that act provides, in part:

§ 3-202. Perfection of security interests, (a) Unless excepted by section 3-201, a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or lienholders of the vehicle unless perfected as provided in this act.
(b) A security interest is perfected by the delivery to the Secretary of State of the existing certificate of title, if any, an application for a certificate of title, containing the name and address of the lienholder and the date of his security agreement and the required fee. . . .

Plaintiff admittedly endorsed in blank the certificate of title to the automobile, which stated that there were no liens against it, and delivered the certificate to Pand-Rorsche. William Patzer, president of plaintiff’s corporation who also operates parking lots and who, by his own testimony, had purchased about 20 cars in the period from 1955 to 1961, could be presumed to be familiar with the automobile business and the titling procedures. It was his failure to comply with the mandate of the statute which enabled Pand-Rorsche fraudulently to resell the car without disclosing to the buyer the plaintiff’s security interest in it. Under the provisions of § 3-202, therefore, plaintiff’s security interest was not valid as against defendant, a subsequent transferee.

Certain security interests, however, are exempted by § 3-201 from the perfection requirements of § 3-202. Section 3-201 (Ill Rev Stats 1963, c 95%, § 3-201) reads in part as follows:

§ 3-201. Excepted liens and security interests. This Article does not apply to or affect:
(c) A security interest in a vehicle created by a manufacturer or dealer who holds the vehicle for sale, but a buyer in the ordinary course of trade from the manufacturer or dealer takes free of the security interest. (Emphasis ours.)

If defendant were a buyer in the ordinary course of trade, therefore, it would take title to the automobile free of plaintiff’s security interest, even if that interest fell within the exception carved out by § 3-201.

The Motor Vehicle Law itself contains no definition of the phrase, “buyer in the ordinary course of trade.” The Uniform Trust Receipts Act (Ill Rev Stats 1961, c 121%, § 166 et seq.), which has since been supplanted in Illinois by the Uniform Commercial Code, contained the following definition of that phrase:

§ 166. Definitions. That in this Act, unless the context or subject matter otherwise requires: (1) “Buyer in the ordinary course of trade” means a person to whom goods are sold and delivered for new value and who acts in good faith and without actual knowledge of any limitation on the trustee’s liberty of sale, including one who takes by conditional sale or under a pre-existing mercantile contract with the trustee to buy goods delivered, or like goods, for cash or on credit. “Buyer in the ordinary course of trade” does not include a pledgee, a mortgagee, a lienor, or a transferee in bulk. (Ill Rev Stats 1961, c 121%, § 166(1)).

This court, in General Finance Corp. v. Krause Motor Sales, 302 Ill App 210, 23 NE2d 781, interpreted the Uniform Trust Receipts Act’s definition of this phrase to include a dealer who purchased several cars from another dealer without knowledge of the fact that the selling dealer had previously created a security interest in the automobiles.

The Uniform Commercial Code altered the phrase to read, “buyer in the ordinary course of business,” and defined it as follows:

“Buyer in the ordinary course of business” means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. “Buying” may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting contract of sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt. (Ill Rev Stats 1963, c 26, § 1-201 (9)).

We are of the opinion that the defendant in this case was clearly a buyer in the ordinary course of trade. It is undisputed that defendant and its agents, at the time of the purchase of the automobile from Pand-Rorsche, had no notice of any liens or encumbrances on the automobile, or of any interest plaintiff may have had therein. Therefore, even if this security interest is included within the exception carved out by § 3-201, defendant would nevertheless take clear title to the automobile, free from any claims of the plaintiff.

Plaintiff’s primary contention is that the defendant’s conduct, after learning of the security interest in the automobile, should prevent him from asserting the rights of a buyer in the ordinary course of trade. Particular stress is placed upon the fact that the defendant’s agent sold the automobile in another state after the representative of the Office of the Secretary of State had advised him not to dispose of it. But in our view the wisdom and propriety of the defendant’s conduct in so doing bears no relation to the quality of the title which he took at the time of the purchase of the automobile from Pand-Rorsche. Plaintiff’s failure to protect his security interest, and the fact that at the time of the purchase from Pand-Rorsche defendant was a buyer in the ordinary course of trade, freed the defendant’s title from plaintiff’s security interest. Events occurring thereafter have no relevance for this purpose.

Plaintiff also contends that defendant did not take good title to the automobile because the title certificate was forged, in that the president of Pand-Rorsche signed a fictitious name to the certificate in conveying it to the defendant. Plaintiff claims that, “Defendant knew, or should have known, this title had a link in it which was forged.” Our attention is directed to the fact that the signature of “Lee Thomas” was acknowledged by a notary public who was employed by the defendant.

Prior to these dealings, neither of the parties was familiar with the personnel of Pand-Rorsche. When Lee Thomas was introduced by that name as owner and president of Pand-Rorsche, defendant’s agents had no reason to suspect a fictitious name was being used. It was natural that when the same person presented himself at the premises of Evanston Motor Co. and signed that name to the application for title, the notary public would, under the circumstances, acknowledge his signature as true. There is no evidence to support plaintiff’s contention that Evanston Motor Company “knew, or should have known, this title had a link in it which was forged.” Furthermore, the record gives us no grounds for questioning the fact that the man who signed as Lee Thomas, although using a false name, was in fact the president of Pand-Rorsche, and was competent to buy and sell automobiles on behalf of Pand-Rorsche.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed and the cause remanded with directions that judgment be entered that plaintiff take nothing by this action and that Evanston Motor Company have judgment for its costs.

Reversed and remanded with directions.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    Edith Goffen Ackerman, Individually and as Coexecutor of the Estate of Harry Goffen, Deceased, and Walter G. Ackerman, Plaintiffs-Appellees, v. Elmont Lumber Company, a Corporation, Isadore Goffen, as Coexecutor of the Estate of Harry Goffen, Deceased, Leona Cohen Goffen, Robert L. Ackerman, Melanie Goffen, Lawrence Goffen, the State of Israel, and William G. Clark, Attorney General of the State of Illinois, Defendants-Appellees, and Theodore C. Argiris, Guardian Ad Litem for Minor Defendants, Robert L. Ackerman, Melanie Goffen and Lawrence Goffen, Defendants-Appellees, and Arthur Ellis, Successor Trustee Under the Last Will and Testament of Harry Goffen, Deceased, Appellee, and Isadore Goffen, Individually, Defendant-Appellant.
    Gen. No. 50,626.
    First District, First Division.
    April 11, 1966.

      Peter V. Fazio and Edward Atlas, of Chicago, for appellant.
    Schiff, Hardin, Waite, Dorschel & Britton, of Chicago (Milton H. Cohen and Alexander Polikoff, of counsel), for appellee, Edith Goffen Ackerman.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In this appeal, defendant Isadore Goffen challenges the order of the Chancellor taxing him with half of the $4,000 fee awarded the guardian ad litem in the proceeding below. Goffen claims that the Chancellor was required to tax the full costs of the litigation, including the guardian ad litem’s fee, against the plaintiffs, Edith Goffen Ackerman and her husband Walter G. Ackerman; or, in the alternative, that the Chancellor should not have taxed Goffen for any more than 2*4 hours of services rendered by the guardian ad litem.

Harry Goffen died on November 8, 1961, leaving him surviving his son, Isadore Goffen, his daughter, Edith Goffen Ackerman, and three minor grandchildren. In the will, Goffen and Mrs. Ackerman were designated coexecutors, and they were duly appointed. On January 2, 1963, Mrs. Ackerman in her individual capacity and as coexecutor and her husband brought suit, requesting, in part, that the court declare void for uncertainty a trust created by the will of Harry Goffen. Of the three counts in the complaint, only Count HI is relevant to this appeal. Those named as defendants included Isadore Goffen, the two minor children of Goffen, and the Ackermans’ minor son. Upon motion of the plaintiffs, Theodore C. Argiris, an attorney, was appointed guardian ad litem to represent the interests in the trust of the three minors, over the objection by Goffen that such appointment was unnecessary and that the suit should be dismissed. Goffen, in his answer, denied that the trust created by the will was void for uncertainty or that it required construction or interpretation. The guardian also filed an answer, neither admitting nor denying the allegations of the complaint.

On February 21, 1964, the Ackermans asked leave to file an amendment to their complaint which, among other changes, deleted Count III, the count attacking the validity of the testamentary trust. Leave to amend was granted over objections filed both by Goffen and by the guardian ad litem. Thereafter, Goffen filed a counterclaim requesting virtually the same relief as had been sought in Count ni of the plaintiffs’ complaint — namely, that the testamentary trust be declared void for uncertainty. The guardian ad litem also filed a counterclaim, seeking a construction and interpretation of the will, and particularly of the provisions creating the trust. The plaintiffs’ motions to strike the counterclaims were granted, and the court specifically found that the trust was valid and that no construction of its provisions was presently necessary. No appeal was taken from this order. The guardian ad litem then filed his petition for fees; and after argument of counsel as to who should pay those fees, the court entered an order awarding $4,000 in fees to Argiris and taxing half that amount to Goffen and half to Mrs. Ackerman. It is from this order that Goffen appeals. It should be noted that no contention is made that the amount of the fee is unreasonable; the dispute concerns only its apportionment among the parties.

Goffen’s primary contention that the guardian ad litem’s fee should have been taxed entirely against the plaintiff is grounded upon the statutory provision imposing “full costs” upon a plaintiff who dismisses his suit in equity. That provision is Ill Rev Stats, ch 33, § 18 (1963), and reads as follows:

§ 18. Dismissal of suit — Equity suits.
Upon the plaintiff dismissing his suit in equity, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the plaintiff full costs; and in all other cases in equity, not otherwise directed by law, it shall be in the discretion of the court to award costs or not; and the payment of costs, when awarded, may be compelled by execution.

Goffen further argues that the $4,000 fee of the guardian ad litem in this case must be included within the costs, by virtue of the provisions of Ill Rev Stats, ch 22, § 6 (1963), which provides in part as follows:

In any cause in equity it shall be lawful for the court in which the cause is pending to appoint a guardian ad litem, to any infant or insane defendant in such cause, and to compel the person so appointed to act; ... By such appointment, the person so appointed guardian ad litem, or trustee, shall not be rendered liable to pay costs of suit; and he shall, moreover, be allowed a reasonable sum for his charges as such guardian, or trustee, to be fixed by the court, and taxed in the bill of costs.

But the problem with this argument is that the services rendered by the guardian ad litem in this case, upon which the fee of $4,000 is predicated, were primarily legal services. This court takes judicial notice of the fact that lawyers are generally appointed as guardians ad litem, because the services required on behalf of those represented are primarily legal services. It has been settled law in Illinois since Hutchinson v. Hutchinson, 152 Ill 347, 38 NE 926, that while the guardian ad litem’s fee for his own services is properly included in costs, the fee of counsel employed by the guardian ad litem is not so included. In that case, a will contest, the trial judge had ordered that the guardian ad litem’s own fee and the fees of the attorney employed by the guardian ad litem be paid by the losing party who had requested the appointment of the guardian ad litem. On appeal, the order as to the fees of the attorney hired by the guardian ad litem was reversed, with the Supreme Court holding:

It would be a heavy tax upon, if not a denial of, justice, to keep out of court a citizen who is advised that he has just ground for relief in equity, without he assumes a liability to pay the fees and expenses of the solicitors and experts employed by his adversaries, in all cases where one or more of the opposite parties in interest happen to be under full age. The general rule that prevails in this State is, that solicitors’ fees and experts’ fees can not be taxed as costs against unsuccessful litigants in chancery suits, and that the discretion of the chancery courts in awarding costs in such cases is confined to statutory allowances (citing cases). (152 Ill at 355.)

Even more directly on point is Gagnon v. Burton, 107 Ill App 506. In that case, a suit for partition, an attorney was appointed as guardian ad litem at the request of the plaintiff. After the action had been pending for six months, the plaintiff voluntarily dismissed her suit. The guardian ad litem’s fee was assessed by the trial court, and the plaintiff was ordered to pay the entire amount as part of the costs of the lawsuit.' On appeal, this court cited Hutchinson, and held that it was error to tax as costs that portion of the guardian ad litem’s fees which represented legal services rendered. The case was remanded for a determination of what portion of the guardian ad litem’s fee was for legal services rendered.

On the strength of these authorities, therefore, we hold that since the fee of the guardian ad litem in this case was primarily for legal services rendered, the Chancellor was not required to include them within the costs taxed entirely to the plaintiff.

Since the Chancellor was not required by the statute to charge against the plaintiff the full amount of the fee of the guardian ad litem, it was within his discretion to apportion that fee between the parties as the equities of the case required. His assessment of that fee in equal portions against Goffen and Mrs. Ackerman is attacked by Goffen as an abuse of that discretion. In support of his contention, Goffen alleges that of the total of 134% hours of services rendered by the guardian ad litem, only 2% hours were expended in connection with the counterclaim filed by Goffen. Even if this is accepted as true (although plaintiffs dispute this computation), we cannot agree that the Chancellor abused his discretion by taxing the $4,000 fee equally between the parties. Goffen, who by his answer opposed the plaintiffs’ contention that the trust was void, later saw fit to ask for the same relief himself. It was, in fact, Goffen’s counterclaim for that relief, and not the plaintiffs’ complaint, which eventually necessitated an adverse finding on the merits by the trial court. We also note, that of the three minors whose interests the guardian ad litem was appointed to represent, two were Goffen’s children, and the third, the son of the Ackermans, attained his majority less than a month after the appointment of the guardian ad litem. Under these circumstances, we are convinced that it was not an abuse of discretion by the Chancellor to apportion the fee of the guardian ad litem equally between Goffen and Mrs. Ackerman.

The order of the Chancellor is therefore affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hubert Patrick Skidmore, Defendant-Appellant.
    Gen. No. 50,913.
    First District, First Division.
    April 11, 1966.
    Rehearing denied May 2, 1966.

      Thomas J. O’Brien and Cooney and Stenn, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Hubert Patrick Skidmore, was indicted for murder and found guilty of the lesser included crime of involuntary manslaughter in a trial by jury. He was sentenced to a term of five to ten years.

On appeal, defendant contends that the trial judge erred in admitting into evidence and permitting the jurors to view certain photographs depicting the body of the deceased and the surrounding area in which it was found. He claims the photographs had no probative value, were prejudicial, and, at most, constituted cumulative evidence.

Defendant further contends that the trial judge erred in admitting into evidence incriminating statements made by the defendant to police officers and to an Assistant State’s Attorney under circumstances where the accused was not afforded a right to retain counsel, nor warned of his constitutional right to remain silent. Thus his rights under the Sixth, Seventh and Fourteenth Amendments to the federal Constitution were violated.

Defendant finally contends that the court erred in giving an instruction tendered by the state which referred to certain statements the defendant made as confessions when, defendant urges, they were merely incriminating statements and not confessions.

Testifying in his own behalf, defendant said that on April 6, 1962, he left his place of employment about 8:00 a. m. and after visiting several taverns went home. At about 6:00 p. m., he had dinner in a restaurant and then went on a tour of taverns. At approximately 9:00 or 9:30 p. m., he entered the Random Lounge in the area of 75th & Exchange Avenue, Chicago. He was in the Lounge around closing time and then went next door to Ray’s Lounge. He said it was after 2:00 or 2:30 a. m. He met his brother there and continued drinking. He then met the deceased, Maxine Lanzafame and left with her for her apartment at about 3:30 a. m. At the apartment they found a fifth of whisky and finished approximately half of it together. They put the radio on and danced. After necking a while on the sofa, deceased said, “If we are going to do anything, we’ll go into the bedroom and do it properly and not here.” After entering the bedroom, deceased went out and returned in the nude. They both got into bed and were hugging and kissing when, “before we could start anything, she started calling” him “a raper.” He got out of bed, told her he was not a raper. She continued screaming and accusing him of being “nothing but a dirty rotten raper.” He admitted hitting her with his left hand in the stomach. She fell on the bed “seat first,” got up again and kept on screaming. He hit her “in the mouth and nose area.” He dressed, and was about to leave, but found he couldn’t leave her, “that is all.” After he went back he looked at her. She was bleeding and there was blood on the floor. He removed his clothes again, got into the bathtub with the deceased and turned on the cold water to sober her up. After taking her back to the bed he applied wet cloths to her face and behind her neck. He placed some garments on her and fell asleep on the bedroom floor. When he awakened she “had this eye here open” and was looking at him and following him because he walked around the bed. He then applied some more wet cloths and told her not to say anything. Everything would be all right. She put her hand on the side of his face and said, “Oh Pat.” When he left the apartment about 12:30 or 1:00 p. m., she was alive.

When asked on cross-examination how severe were the blows he inflicted upon the deceased, he answered: “I just swung.” He said she never hit or threatened bi-m with violence. When he left her apartment, her nostrils were filled with coagulated blood and she was breathing heavily. Two of his right hand knuckles were skinned as a result of the blows.

Fred Lanzafame, the estranged husband of the deceased, discovered the body at approximately 2:80 p. m. on April 7, 1962. He found the living room in disarray and the nude body of his wife, covered with blood, lying on the bed. He shook her and when there was no response, turned the body over and “saw her face was all smashed up ... . Her both eyes were swollen, quite big, in fact, to the proportion of her face, her nose was flat, almost level with her eyes, her lips were all swollen, blood was between her lips and on her teeth.”

The police officer who responded to a radio call noticed that the deceased was “bruised about the face, the skin was a gray, bluish-gray in color” . . . “the lips were swollen, dried blood around the lips, the left eye was blue, black and blue. She had a laceration above the right eye and also one on the chin.” Another officer stated he found a frying pan under a blanket on the floor to the right of the bed. The handle was broken off, the pan was dented in on the bottom and there was “a red colored substance, believed to be blood, on the bottom. . . . After the body was removed the handle was found between the mattress and innerspring on the bed.”

A third officer who viewed the body at the scene, said: “I seen a small cut underneath the left side of the chin, a half inch laceration over the right eye and blood emitting from her nostrils and her lips.” He took photographs which he identified at the trial and which the court admitted into evidence.

Defendant was arrested at home, taken to the police station where, after a short period of interrogation, started weeping and said “I did it. I killed her.” He then gave the police a written statement and some two hours later gave another to an Assistant State’s Attorney.

Defendant first argues that the trial court erred in admitting into evidence and in permitting the jurors to view the photographs of the victim’s body and the bedroom area. The photographs were not in color yet did indicate the condition of the face and bruises on her body. They were admitted for the purpose of showing the amount of force used. In view of the defendant’s story that he “just swung,” striking her but twice, once in the face and again in the stomach, and because of the divergent description given by the victim’s husband and the officers, it was helpful and of probative value when viewed by the jurors. In fact, we believe the admission of the photographs was to defendant’s advantage as evidenced by the verdict rendered herein.

Questions relating to the character of the evidence offered and the manner and extent of its presentation, are largely within the discretion of the trial judge, and the exercise of that discretion will not be interfered with unless there has been an abuse resulting in prejudice to the defendant. People v. Jenko, 410 Ill 478, 482, 102 NE2d 783 (1952). The trial court, in our opinion, did not abuse that discretion and the defendant was not prejudiced thereby.

Secondly, defendant objects to the fact that the court admitted the incriminating, signed statements given by the defendant to the police officers and the Assistant State’s Attorney upon the grounds that constitutional privileges were violated because he was not afforded right to retain counsel, nor warned of his constitutional rights. Although these contentions, under the circumstances, may be disposed of under the rule enunciated in People v. Hartgraves, 31 Ill2d 375, 202 NE 2d 33 (1964) and those cases following it, we find defendant has no basis for this complaint in view of the fact that he himself took the witness stand and practically in detail reiterated under oath in the trial the matters contained in these written statements. He was, therefore, not prejudiced and cannot claim constitutional privileges which he voluntarily waived by testifying.

Finally, defendant urges reversal on the ground that the court erred in giving an instruction which referred to the written statements as confessions “when in fact they were not confessions but merely incriminating statements.” The instruction was as follows:

It is the duty of the jury to consider all the evidence which the court has admitted as competent for their consideration, and they have no right to disregard the evidence of any confession which the court has permitted them to hear. The jury are the exclusive judges of the credibility of the confession and the weight which should be given it as proof. They shall take into consideration all the circumstances in evidence in regard to the making of the confession in determining its truth or falsity. Whether the confession is true or false, or partly true and partly false, is a question for the jury to determine. It is for the jury to consider and weigh the confession and give it such credit as it may be entitled to in the judgment of the jury.

The reference in this instruction to “all” the evidence and “any” confession would include defendant’s remark made shortly after his arrest: “I did it. I killed her.” Taking defendant’s testimony at the trial wherein he described his conduct regarding the incident almost exactly as given in his written statements, we hold such instruction could not have prejudiced him.

For these reasons it is our opinion that defendant had a fair trial, and the verdict and judgment justified. The judgment is affirmed.

Affirmed.

BURMAN and MURPHY, JJ., concur.


author: JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Jefferson, Defendant-Appellant.
    Gen. No. 50,298.
    First District, Fourth Division.
    April 15, 1966.
    Rehearing denied June 6, 1966.
    Philip M. Basvie, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Wesley Johnson, Defendant-Appellant, Yellow Cab Company, Intervenor-Appellant.
    Gen. No. M-50,350.
    First District, Second Division.
    April 19, 1966.

      Lee A. Freeman and William L. Sharp, of Chicago, for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (William G. Clark, Attorney General, Edward Finnegan, Assistant Attorney General, Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty of violating section 18 of the Illinois Motor Carrier of Property Act by transporting personal property for hire without a certificate of public convenience and necessity and was fined $300. Ill Rev Stats 1963, c 95y2, par 282.18. He appeals.

The facts are undisputed. On September 10, 1964, defendant, a taxicab driver, was dispatched by radio by his employer, Yellow Cab Company, to pick up a package at a Chicago address for delivery to an air express terminal at O’Hare Airport. A fee of $5 was charged for this delivery. No passenger accompanied the package, containing machine parts, enroute to the airport. While making the delivery at the airport, defendant was apprehended by an investigator for the Illinois Commerce Commission, who issued a complaint (traffic ticket) for the transportation of personal property for hire without the necessary certificate. Neither defendant nor his employer has a certificate allowing such form of transportation for hire.

A motion to dismiss the complaint, supported by an affidavit, was filed on December 4, 1964, asserting that defendant was an agent of the Yellow Cab Company and was acting as such when arrested, that the transportation of the personal property by defendant constituted a “casual and occasional transportation of personal property” or “transportation of property incident to and in furtherance of” Yellow Cab’s passenger carriage service, and that this activity is expressly exempted from the certificate requirements of the Motor Carrier of Property Act by section 3 of the Act. Ill Kev Stats 1963, c 95*4, par 282.3. After hearings, the motion was denied.

Defendant was tried for the violation on December 10, 1964. In addition to the foregoing evidence presented to the court, the operation’s manager of the Yellow Cab Company testified that Yellow Cab drivers engage in the transportation of unaccompanied personal property on an average of 15 times per day and that this activity constitutes a very small percentage of Yellow Cab’s overall daily carriage activity. On the same day as the trial, Yellow Cab Company filed a motion for leave to intervene in the cause, but no ruling was ever made on the motion.

Section 18 of the Illinois Motor Carrier of Property Act provides:

“. . . it shall be unlawful for any person to operate or furnish service as a motor carrier of property on any public highways of this State, until he shall have filed an application for such authority and received from the Commission a certificate, permit or registration authorizing such operation. . . .” Ill Rev Stats 1963, c 95%, par 282.18.

Section 18 further provides:

“Every person who, either individually, or acting as an officer, agent or employee of a motor carrier or of a corporation other than a motor carrier, . . . procures, aids or abets any motor carrier in violation of this Act or in his failure to obey, observe or comply with this Act, or any such order, decision, rule, regulation, direction or requirement of the Commission or any part or portion thereof, in a case in which a penalty is not otherwise provided for in this Act, is guilty of a misdemeanor. . . .” Ill Rev Stats 1963, c 95%, par 282.18.

Exceptions to the certificate requirements are provided for in section 3 of the Act, which reads:

“This Act shall not apply to: . . .
“(f) The reciprocal, casual or occasional transportation for hire of property by any person who is regularly engaged in business other than the business of transporting property of others for hire . . .
“ (h) Motor vehicle transportation of property by any person incident to or in furtherance of any private commercial enterprise of such person other than the business of transporting property of others for hire. . . .” Ill Rev Stats 1963, c 95%, par 282.3.

The purpose of the Illinois Motor Carrier of Property Act is the regulation of the “business of transporting property for hire.” Elgin Storage & Transfer Co. v. Perrine, 2 Ill2d 28, 116 NE2d 868. As stated by the court in the Perrine case, at page 34:

“. . . An analysis of the act shows that it is not the regulation of motor vehicles as such, but the regulation of the business of transportation, for the legislature expressly declares, in section 1 thereof, that it is ‘the business of the transportation of property for-hire by motor vehicle’ which is to be supervised and regulated. . . .”

We are of the opinion that the daily and regular activity by the Yellow Cab Company of transporting personal property for hire constitutes a “business of transportation of property for hire” for which a certificate of public convenience and necessity is required, that its activity under the circumstances constitutes a violation of section 18 of the Motor Carrier Act, and that defendant Johnson aided and abetted the Yellow Cab Company in the particular violation involved herein.

The daily activity of the Yellow Cab Company in this regard does not fall within the exceptions provided for in either paragraph (h) or paragraph (f) of section 3 of the Motor Carrier Act. The transportation of unaccompanied parcels by Yellow Cab is not “transportation of property . . . incident to or in furtherance of” its business of transporting persons for hire. In each of the 15 daily carriages, personal property alone is transported; passenger carriage is in no way involved. This is not akin to a situation where a passenger, with luggage, desires to be taken to a certain location but to have his luggage dropped off at another location. The argument raised, that this activity is merely a “service to customers,” cannot be employed to disguise the fact that no passenger carriage is involved.

Nor can it be said that the activity of Yellow Cab is the “reciprocal, casual or occasional” transportation for hire. The term “casual” is defined as “occasional; coming without regularity; incidental”; the term “occasional” is defined as “occurring at irregular intervals; infrequent”; and the term “regular” is defined as “steady or uniform in course, practice or occurrence.” Webster’s New International Dictionary, (2nd ed.). Transportation of some 15 parcels of personal property per day by the Yellow Cab Company, admitted by it to be its practice, is clearly an activity which occurs with regularity and is a steady practice and occurrence. The fact that it may amount to a very small percentage of Yellow Cab’s overall daily activity does not alter this fact. Yellow Cab makes a business of this form of carriage, grossing nearly $6,000 per year in revenue therefrom, and yet is not subject to the rules and regulations of the Motor Carrier of Property Act with respect to rates and fees, area and location of operation, and the like, as are the persons certificated to engage in this form of business. The Yellow Cab Company holds itself out as a carrier of personal property, and yet may refuse to carry any given parcel without being subject to penalty.

Defendant relies on the cases of Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272, and Bankers & Shippers Ins. Co. of New York v. Blackwell, 260 Ala 463, 71 So2d 267, in support of its position that the activity of Yellow Cab Company without a certificate is not violative of the Motor Carrier Act. The Tansey Case presents a situation entirely different from the case at bar. In the Tansey case, defendant Great Atlantic & Pacific Tea Company hired defendant Robinson to deliver merchandise ordered by its customers. The delivery of the parcels in the Tansey case was clearly a service to the customers of Great Atlantic and incidental to its regular business activity. In the case at bar, on the other hand, Yellow Cab Company engages in two separate businesses for hire, namely, the transportation of persons and the transportation of property.

The Blackwell case also involves substantially different circumstances. In Blackwell, the party who was charged with violation of the Federal Motor Carrier Act (49 USCA § 303(b) (9)) engaged in the carriage of personal property for hire only a few times during the year. In the instant case, Yellow Cab engages in these carriages some 15 times each day, every day of the year.

It is admitted that defendant Johnson was under orders from, and the agent of, the Yellow Cab Company when transporting the personal property in question. In so doing, he clearly comes within section 18 of the Motor Carrier of Property Act in aiding and abetting the Yellow Cab Company in its violation of the Act.

The charge is made that defendant did not receive a fair trial, for the reasons that certain incompetent matters were received in evidence over objection and that the court made prejudicial remarks concerning the Yellow Cab Company. However, none of these matters in any way prejudiced defendant, since the admitted and undenied facts showed the Yellow Cab Company to be in violation of the Motor Carrier Act and also showed defendant to have aided and abetted Yellow Cab in this particular violation.

While the facts show Yellow Cab Company to be in violation of the Motor Carrier Act, liability for the violation here in question cannot be directly imposed upon it in the case at bar, since Yellow Cab was never properly made a party to this action.

For these reasons the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and LYONS, J., concur.

       Two amendments to section 3 were enacted by the General Assembly at the same session of the legislature, House Bill 570, approved June 13, 1963, and House Bill 975, approved July 29, 1963. The above citation is to House Bill 975, for the reason that it was enacted later in time and must therefore be deemed to be controlling. See People ex rel. Hines v. Baltimore & O. S. W. R. Co., 366 Ill 318, 8 NE2d 655; People ex rel. Schlaeger v. Mattes, 396 Ill 348, 71 NE2d 690. House Bill 570 omits an exception akin to paragraph (f) above quoted relating to “reciprocal, casual or occasional transportation.”