author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAWN LEE SCHREIBER, Defendant-Appellant.
    First District (4th Division)
    No. 80-1119
    Opinion filed March 4, 1982.
    James J. Doherty, Public Defender, of Chicago (R. H. R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Thomas J. Murphy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

After having been convicted of the murder and robbery of Vito Falcone in a jury trial, defendant Dawn Lee Schreiber was sentenced to concurrent terms of 20 years and 7 years for those respective crimes. On appeal defendant contends: (1) certain statements she made following her arrest should have been suppressed because the arrest itself was illegal; (2) her guilt was not established beyond a reasonable doubt; (3) she was deprived of a fair trial by the prosecutor’s final argument.

We affirm.

The evidence presented by the State at trial established the following pertinent facts. Vito Falcone lived on the first floor of a two-flat building at 1749 North Mayfield Avenue in Chicago. The building also contained a finished basement. At about 10 a.m. on June 5,1978, Falcone’s sister went to this home and discovered Falcone’s body, bound hand and foot, gagged, and lying under a mattress. The first-floor apartment was ransacked and two television sets were missing. Police summoned to the scene were informed by a next-door neighbor that Falcone had been seen the afternoon before parking his car in the area in the company of a woman the witness had never seen before. The police were given a detailed description of this woman. According to the police the bindings on the body were so tight as to be imbedded in the skin. Bruises were visible on the victim’s face and right elbow. No wallet or money was found in his clothes. About two feet from the bed was a hammer. In another room of the basement police found a bag containing women’s clothing and various papers. Included in those papers were a photograph of a woman, two envelopes, and a letter, all bearing the defendant’s name.

It was ascertained that defendant lived at 4727 North Malden Street in a hotel called the New Malden Arms. Half a block from that establishment police found the victim’s Cadillac. Its tires, wheels, and interior had been stripped.

Police Investigator James Sesso went to the hotel and knocked on the door of Room 416, which he had learned was defendant’s room. No one answered, and after the hotel manager let him into that room he proceeded to Room 421, registered to James Jackson. Sesso knocked and a woman opened the door. He identified himself as a police officer and asked the woman if she was the defendant. She said she was, and Sesso told her she was under arrest. During this conversation at the door Sesso had observed in the apartment, sitting on top of a television set, another television set which resembled one missing from the victim’s home. After placing defendant under arrest and informing her of her rights, Sesso moved defendant into the apartment. In response to questioning she stated that her boyfriend, James Jackson, lived in the apartment but was out of town for a week. At that time a man entered the apartment with a key. Sesso learned that he was James Jackson and arrested him.

Defendant was transferred to the police station where Sesso again questioned her. After reading her her rights and informing her of the incriminating evidence the police had, Sesso elicited from defendant the following account of the occurrence. Defendant had known the victim for two weeks; during the last week she had been living on and off in the basement apartment of his house. On June 4 she had gone to a carnival. At about 1 a.m., while in the company of James Jackson, she called Falcone to get a ride home. Falcone drove her to his house and after watching television with him she retired to the basement. Later Jackson and a man she knew as Terry Ellis knocked on her door, and she let them in.

About 15 minutes later Falcone came downstairs and objected to there being two black men in the apartment. When he told defendant to “get the niggers out of my house” Jackson and Ellis became enraged. They knocked him to the floor, tied and gagged him, and put him on the bed. Ellis gave defendant a hammer and told her to watch Falcone while they went upstairs to see what they could find. When Falcone began to struggle defendant hit him on the side with her fist and then hit him on the head with the hammer. During this time Jackson and Ellis were removing televisions and other items from the first floor and placing them in Jackson’s car. Ellis drove that car to the New Malden Arms and defendant drove with Jackson in Falcone’s Cadillac. Jackson parked that car in a lot near the hotel and stripped it of its wheels, tires, and interior parts. Later that morning defendant carried the black and white television from Jackson’s car to his apartment.

Except for some details which we will set out, defendant repeated substantially the same account later that evening to an assistant state’s attorney in a statement which was transcribed by a court reporter and then signed by defendant. In that statement, however, defendant said Ellis was also with her at the carnival. She saw both Jackson and Ellis strike Falcone before they bound and gagged him in the bathroom where they had chased him. She maintained that she did not intend to strike Falcone with the hammer, but had attempted to throw it at the wall. She also stated that she did not know if the man accompanying Jackson was Ellis because he wore sunglasses and a straw hat. Finally she also added that Jackson had told her he was going to call an ambulance for Falcone.

Defendant’s fingerprints were found in the apartment where the events took place.

Dr. Lee F. Beamer was the pathologist who performed the autopsy on the victim June 6,1978. However the files on the autopsy were subsequently lost. In order to refresh his memory, Beamer testified that he performed a second autopsy on September 21,1978. Beamer recalled that at the first autopsy the victim’s arms were bound behind his back with cord and the legs were bound with a thicker electrical cord. The victim was gagged with intertwined towels and a glove. Beamer recalled that the bindings were tight; he also remembered observing contusions on the head and body.

For the second autopsy the victim was disentombed. Beamer observed some 20 contusions on the body, a laceration of the lip, and three contusions on the skull. He testified that those all were consistent with having been inflicted by the hammer found at the scene. The victim had been embalmed following the first autopsy and Beamer conceded that this process could cause the outlines of the contusions to be more easily discernible but he denied that embalming could actually change the form of the contusions.

Upon examination of the organs of the body and slide sections taken from them Beamer determined that the victim had moderate to focally severe coronary artery disease, also known as arteriosclerotic cardiovascular disease. He had reached this same conclusion after the first autopsy.

Beamer explained that one with this condition could suffer a heart attack because of it. When stress occurred the heart and respiratory rate increase; adrenalin is also released which also increases those rates. The heart can become unable to meet the increased demand of the body for oxygen, causing cardiac stoppage. In this case Beamer believed that mechanical stress had resulted from the victim having been bound, gagged, and having received numerous injuries to the body. Beamer testified that there was also psychological stress associated with this. It was his opinion to a reasonable degree of medical certainty that the cause of Falcone’s death was “arteriosclerotic cardiovascular disease associated with mechanical stress.” He found nothing else of significance that could have contributed to the death.

Beamer also testified that he found no clinical evidence of cardiac failure. However he stated that there were not always observable signs in the body after a person dies of a heart attack. For instance if the heart had gone into fibrillation there would be no signs of that after death. Beamer also testified that codeine was found in the victim’s urine, although he did not know how much was present in his system at the time of death. He conceded that if there had been a high concentration of codeine the victim could have undergone little stress because of the sedative effect of that substance.

Defendant’s sole witness was Dr. James T. Hicks, a pathologist who had examined the pathologic report and protocol from the second autopsy along with the slides taken from the body. Based upon those data and the condition of the body when it was found it was his opinion that the cause of death could not be determined. Hicks concluded that the arteriosclerosis was not that severe. He stated that mechanical stress was not a medical term. Furthermore he found none of the usual evidence of cardiac failure such as blood in the liver or lungs or an accumulation of fluid in the abdomen. Hicks suggested that the numerous subcutaneous discolorations of the skin described by Beamer as contusions might have been caused by the embalming process and by decay. He testified that codeine could have sedated Falcone, reducing stress, but he conceded that he could not determine how much codeine was in the system at the time of the occurrence because the time of death had not been established.

Hicks admitted that some of the contusions, which were shown in a photograph taken when the body was found, could not have been caused by the factors he had mentioned. He also conceded that being assaulted, bound and gagged would be stressful and that stress could precipitate acute failure of the heart in a person with advanced coronary arteriosclerosis in the manner described by Beamer. He also testified that if as the result of this the heart went into ventricular fibrillation, a condition described as the irregular and affective beating of the heart, death could result with no physical signs remaining at the autopsy.

I

Defendant first contends that the statements she made following her arrest should have been suppressed because the arrest itself was illegal, having been made without probable cause and without a warrant,

On the issue of probable cause, the evidence adduced at the hearing on defendant’s motion to suppress and at trial established that when Officer Sesso knocked on the door of Room 421 of the New Malden Arms he knew the following. In the basement where the victim’s body was found police had found a bag containing documents and a photograph of a woman, all bearing the name of Dawn Schreiber. Officer Sesso had the photograph of the woman and also had a detailed description of a woman who had been seen with the victim the evening before his body was discovered. Two television sets had been taken from the victim’s home. Also taken was the victim’s Cadillac. It was found one-half block from the New Malden Arms, stripped of its wheels and tires and much of its interior. The police had ascertained that Dawn Schreiber lived at the New Malden Arms. When a woman opened the door of Room 421 Sesso identified himself and asked if she was Dawn Schreiber. She replied that she was and was placed under arrest.- During this conversation Sesso observed through the open door a television set, placed on top of a second set, which resembled one of those missing from the victim’s home. These facts were sufficient to give Officer Sesso reasonable grounds to believe defendant was criminally involved in the victim’s death; thus, he possessed probable cause to make the arrest. People v. Wilson (1970), 45 Ill. 2d 581, 262 N.E.2d 441.

But defendant also contends the arrest was improper because it was made without a warrant, citing Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Payton held that under the fourth amendment police were prohibited from making a warrantless and nonconsensual entry into a suspect’s home to make an arrest unless exigent circumstances were present. In a subsequent case that holding was extended to entries into the homes of third parties, but the court left undecided the issue of whether the subject of such an arrest would have standing to challenge the violation. (Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101S. Ct. 1642.) But we do not reach the issue of defendant’s standing to challenge her arrest, for we find that in any event it was properly made without a warrant. Defendant was arrested at the entrance of the room, after she voluntarily opened the door in response to the officer’s knocking. We find that under such circumstances her arrest was made in a public place, so that no warrant was required. In United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406, the police approached a suspect’s home and observed her standing in the doorway. When they identified themselves and approached she retreated into the home. The court ruled that when the police first sought to arrest the woman, while she was standing in her doorway, she was in a public place:

“While it may be true that under the common law of property the threshold of one’s dwelling is ‘private,’ as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment [defendant] was in a ‘public’ place. She was not in an area where she had any expectation of privacy. ‘What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.’ Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U.S. 57, 59, 68 L. Ed. 898, 44 S. Ct. 445 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in [United States v. Watson (1976), 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820].” (427 U.S. 38, 42, 49 L. Ed. 2d 300, 305, 96 S. Ct. 2406, 2409.)

The court went on to hold that defendant’s subsequent retreat into her home could not be used to thwart an otherwise proper arrest; the arrest which ultimately was made in the home was justified by the exigent circumstance of hot pursuit. Our research has uncovered no case on point in Illinois, but the courts of a number of other jurisdictions have applied Santana and have found warrantless arrests to have been properly made in a public place where a suspect has come to the door in response to police knocking. People v. Burns (1980),_Colo._, 615 P.2d 686; United States v. Botero (9th Cir. 1978), 589 F.2d 430, cert, denied (1979), 441 U.S. 944, 60 L. Ed. 2d 1045, 99 S. Ct. 2161; Untied States v. Herring (10th Cir. 1978), 582 F.2d 535; cf. United States v. Johnson (9th Cir. 1980), 626 F.2d 753, cert, allowed (1981),_U.S__, 70 L. Ed. 2d 82, 102 S. Ct. 89 (warrantless arrest at door improper because agents used false identification and had guns drawn, so that defendant’s appearance at door was nonconsensual).

In the case at bar there was no evidence to suggest that subterfuge was used or that defendant was in any manner coerced into opening the door and thus exposing herself to public view. She voluntarily identified herself to the police and was arrested at the entrance to the room. Accordingly, we find that her warrantless arrest was proper, and the statements she made following that arrest were properly introduced at trial.

II

We find no merit to defendant’s contention that her guilt was not established beyond a reasonable doubt. Defendant’s contention relates solely to the issue of the criminal agency causing death, which of course must be proven beyond a reasonable doubt in a murder case. (People v. Benson (1960), 19 Ill. 2d 50, 166 N.E.2d 80.) On that issue the State’s expert witness, Dr. Beamer, testified that he found the victim to have moderate to focally severe coronary artery diseasé. He further testified that stress in one with such a disease often causes cardiac stoppage, and he explained the manner in which this would occur. The victim in this case was bound tightly hand and foot, gagged, and numerous contusions were found on his head and body. Beamer concluded that these factors would have caused stress in the victim. It was his opinion to a reasonable degree of medical certainty that the cause of the victim’s death was arteriosclerotic cardiovascular disease associated with mechanical stress. His autopsies revealed nothing else of significance that could have contributed to the death.

Although the defense expert, Dr. Hicks, disagreed with Bearner’s conclusion, his testimony did not differ from that of Beamer as much as the defendant would suggest. Hicks, like Beamer, found no physical sign of heart failure. But he conceded that if the failure resulted from ventricular fibrillation no such evidence would necessarily be present. He testified that mechanical stress was not a medical term but conceded that emotional stress in combination with advanced coronary arteriosclerosis, could cause heart failure. He too found such a disease present in the victim, but differed as to its severity. Like Beamer, Hicks testified that codeine of a sufficient amount could have sedated the victim and reduced stress, but he also agreed that it could not be determined how much was present at the time of the occurrence.

Defendant’s own statements established the stressful nature of the robbery and attack on the victim. In those statements she confirmed that Falcone had been repeatedly struck, bound, and gagged. When he began to struggle she hit him on the head with a hammer. The State was not required to prove that the acts of defendant and those of people for whose behavior she was accountable constituted the sole and immediate cause of death. It was sufficient that they established that those acts constituted a contributory cause such that the death did not result from a source unconnected with those acts. People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459.

We find that the testimony of Dr. Beamer, together with defendant’s own statements, was sufficient to permit the jury to conclude that defendant was accountable for the murder of Vito Falcone, and thus to reject the defense expert’s conclusion to the contrary.

Ill

Finally defendant contends that certain comments made by the prosecutor in final argument to the jury were prejudicial and deprived her of a fair trial.

Defendant first points to several instances in which the prosecutor, over unsuccessful defense objection, instructed the jury on accountability, robbery, murder, and the doctrine of felony-murder. In only two of these instances does the defendant contend the prosecutor incorrectly stated the law. The first instance was when the prosecutor informed the jury that:

“[The victim] was beat up and it is no way to get out of this to say that he wasn’t beat up too much or to suggest that a healthier, younger, more robust person would have come out of the same exact kind of traumatic situation differently.
You take your victim as you find him because, otherwise, can any 67-year-old man with the kind of arteriosclerosis that Mr. Falcone had ever be murdered short of putting a bullet through his brain or a knife in his heart?”

We find this to be an in artfully stated but accurate explanation to the jury, based on the facts of this case, of the law that:

* * if a person who is enfeebled by disease is unlawfully assaulted, and an injury inflicted upon him which would not have been mortal to a man in ordinary good health but which was mortal to him in his then [enfeebled] condition, the assailant is to be deemed, in law, guilty of unjustifiable homicide, either murder or manslaughter, as the case may be, and that though the assailant did not know the enfeebled condition of the person assaulted.” People v. Humble (1974), 18 Ill. App. 3d 446, 451, 310 N.E.2d 51, 55, quoting Cunningham v. People (1902), 195 Ill. 550, 572, 63 N.E. 517, 525.

The second allegedly incorrect statement of law by the prosecutor was:

“The law says that if [defendant] was present and did not disapprove or oppose the crime, that you can consider that along with other circumstances of the crime.”

This too constituted a correct statement of the law. People v. Morgan (1977), 67 Ill. 2d I, 364 N.E.2d 56, cert, denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150.

In all the instances of comment on the law by the prosecutor we have found that the comments were made as an aid in illustrating the application of the law to the facts. Although it has been held to be an improper invasion of the court’s function for an attorney to instruct the jury on the law (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931; People v. Campbell (1973), 13 Ill. App. 3d 31, 299 N.E.2d 439), it has nevertheless been held to be proper for attorneys to give examples illustrating the application of the law to the facts. (Boyd; Campbell; see People v. Pietrzyk (1977), 54 Ill. App. 3d 738, 369 N.E.2d 1299.) How this latter function may be performed without some mention of the law to be applied is unclear. But in any event where as here the attorney correctly stated the law we can find no prejudice to the defendant and thus no basis for reversal. People v. Bote (1941), 376 Ill. 264, 33 N.E.2d 449.

We have examined defendant’s remaining claims of error concerning the prosecutor’s final argument and find that in the context of the entire argument no substantial prejudice to the defendant resulted, so that no reversible error was committed. People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert, denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.

Accordingly, for the reasons cited in this opinion, the judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ„ concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    NICHOLAS D. PANARESE, Petitioner-Appellant, v. JOHN F. HOSTY et al., Respondents-Appellees.
    First District (3rd Division)
    No. 82-348
    Opinion filed March 5, 1982.
    Franklin J. Lunding, Jr., of Chicago, for appellant.
    Franklin S. Schwerin, of Supena, Nyman & Schwerin, of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Nicholas D. Panarese, sought judicial review in the circuit court of Cook County of a decision by respondent, Cook County Officers Electoral Board, which overruled petitioner’s objection to the nominating petitions filed by respondent, John F. Hosty, for the office of democratic committeeman of River Forest Township, Cook County, to be voted upon at the primary election on March 16. The trial court affirmed the decision of the electoral board, and petitioner appeals.

The issues presented for review are whether section 7 — 10 of the Illinois Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 10) requires a petition circulator to set forth the street and number of his residence when the circulator is not a resident of a city having a population over 10,000; and, if so, whether this requirement can be satisfied with respect to one page of the nomination papers by reference to information given on the immediately preceding page.

Section 7 — 10 of the election code provides that a candidate’s name shall not be “printed upon the primary ballot unless a petition for nomination has been filed in his behalf as provided in this Article in substantially the following form.” One of the requirements is that each sheet of the petition contains an oath of the circulator “stating his residence address (and if a Resident of a city having a population of over 10,000 by the then last preceding Federal census, also stating the street and number of such residence).”

In the present case, sheet 3 of the candidate’s nominating petition, containing 21 signatures, contains an oath by the circulator which states that the circulator resides “in River Forest Township in the Village of River Forest, County of Cook and State of Illinois # * but which omits the number and street of his residence. Petitioner maintains that this omission invalidates sheet 3 of the nominating petition, thus reducing the number of signatures below the statutory minimum required for a candidate’s name to be printed on the primary ballot. Respondents counter that the circulator was not required to set forth the street and number of his residence because he was not a resident of a city having a population of over 10,000.

The record is silent as to the population of River Forest. More importantly, since River Forest is a village rather than a city, it is not covered by the provision requiring that the street and number be indicated if the circulator resides in a “city having a population of over 10,000.” In so holding, we reject petitioner’s position which would have us ignore the language enclosed in parenthesis and interpret “residential address” as requiring a street and number for any area where such address is available and recognized as part of the address. This interpretation would render the parenthetical provision entirely superfluous. It is a general rule of construction that where a statute can be reasonably interpreted so as to give effect to all its provisions, a court will not adopt a strained reading which renders one part superfluous. Jarecki v. G. D. Searle & Co. (1961), 367 U.S. 303, 6 L. Ed. 2d 859, 81 S. Ct. 1579; People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.

Nor can we reasonably assume that the legislature meant the word “city” as it appears in the parenthetical provision in question, to apply to a “village.” When we examine a preceding sentence in the section, “However the county or city, village or town, and state of residence of the electors may be printed on the petition forms where all of the electors signing the petition reside in the same county or city, village or town, and state” (emphasis added), the legislature’s intention to make a distinction between a city and a village becomes unmistakably clear. If it intended that the word city be given so wide a scope as to encompass a village or township, there would have been no need to list the various governmental entities in the preceding sentence. Generally, the express mention of one thing implies the exclusion of other similar things. People v. Fink (1981), 94 Ill. App. 3d 816, 419 N.E.2d 86.

We find the statute to be clear and unambiguous. It requires that the circulator state his street and number only when he resides in a city in which the population exceeds 10,000. Since this provision is inapplicable to the circulator in the present case, his failure to include his number and street on page 3 did not invalidate the petition.

Even if the circulator in the present case were required to state his street and number, however, both the electoral board and the trial court found that his inclusion of that information, under oath, on the preceding page constituted substantial compliance which would satisfy this requirement. That decision will not be reversed unless it is against the manifest weight of the evidence. Williams v. Butler (1976), 35 Ill. App. 3d 532, 341 N.E.2d 394.

Both parties agree that section 7 — 10 is a mandatory rather than a directory statute. The issue is whether substantial compliance can satisfy a mandatory requirement and, if so, whether the circulator here so complied.

We believe that petitioner’s reliance on Havens v. Miller (1981), 102 Ill. App. 3d 558, for the position that substantial compliance cannot satisfy a mandatory statutory requirement, is misplaced. In Havens failure to comply with a similar statute was based, not on a technical violation as in the present case, but on the circulator’s failure to certify under oath that he believed the signers had given their correct residence addresses. Furthermore, the court did not find compliance to be substantial. It rejected the argument that the statements of the signers themselves were sufficient to fulfill the requirement of the circulator’s affidavit. Recognizing a circulator’s affidavit as one of the primary safeguards against fraudulent petitions, the court found this omission to constitute a complete failure to comply with the statutory requirement.

This court has found substantial compliance to satisfy section 7 — 10 where deviations therefrom were technical in nature. (Lewis v. Dunne (1976), 63 Ill. 2d 48, 344 N.E.2d 443; Schumann v. Kumarich (1981), 102 Ill. App. 3d 454.) In Schumann, the circulator, who also was the candidate, neglected to state his address at the bottom of the petition as required by section 7 — 10. The court, however, found that the appearance of his address as a candidate at the top of the petition constituted substantial compliance. In Lewis, the candidate failed to specify in his statement of candidacy, as required by section 7 — 10, the vacancy he sought to fill. Nevertheless, the court found substantial compliance because the information was contained in his petition. Since there was no conflict between the two documents and no basis for confusion, the court held that they could be read together to satisfy the requirement.

Likewise, under these circumstances, where the petition consists of only five pages and the street and number of the circulator, although omitted from page 3, are included on page 2, the circulator has substantially complied with section 7 — 10, thus satisfying the mandatory provision in question.

For the foregoing reasons, the judgment of the circuit court of Cook County upholding the decision of the Cook County Officers Electoral Board is affirmed.

Judgment affirmed.

WHITE, P. J., and McGILLICUDDY, J., concur.


text:
    REGINA SZYMKOWSKI, Plaintiff and Counterdefendant-Appellant, v. ANTON SZYMKOWSKI et al., Defendants and Counterplaintiffs-Appellees.
    First District (3rd Division)
    No. 80-3069
    Opinion filed February 24, 1982.

      Terry P. Eland, Ltd., of Glendale Heights, for appellant.
    Kirsh & Berman, Ltd., of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Regina Szymkowski brought an action for partition. Subsequently defendants Anton Szymkowski, John and Lola Szymkowski, and Harriet and Frank Spychala filed a counterclaim to enforce an oral settlement agreement in which they were to pay plaintiff $10,000 in return for a quitclaim deed to certain property. The trial court entered judgment ordering specific performance by plaintiff of the settlement agreement. The court subsequently ordered plaintiff to pay fees and costs under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). Plaintiff appeals. (Subsequent to the settlement agreement, Anton Szymkowski died. Since the filing of this appeal, plaintiff died and the court granted leave to the administrator of her estate to proceed with the appeal.)

In April 1978 plaintiff filed the partition action. On the date set for trial, August 1, 1979, after plaintiff took the stand, the trial court, Judge Joseph Wosik, asked if the matter could be settled. Negotiations ensued and later that day the trial court entered an order reciting that the parties having reached a settlement, the cause was continued to September 21 for a “Status of Settlement Check.” Thereafter, alleging that plaintiff refused to perform according to the settlement terms announced to the court on August 1, defendants filed their counterclaim seeking specific performance. Defendants attached two letters to the counterclaim. One letter written on August 2 by plaintiff’s then counsel, Thomas Casey, confirmed the terms of the settlement reached in court on the preceding day. The other letter written on September 12 by defendants’ counsel, stated that defendants were ready to tender the settlement money to plaintiff. The claim also contained a prayer for attorney fees and costs premised on plaintiff’s “refusal to perform.”

Plaintiff’s motion to dismiss the counterclaim stated that she had not agreed to settle and invoked the Statute of Frauds. The matter was transferred from Judge Wosik to the present trial judge, who conducted an evidentiary hearing on August 6,1980. Defense counsel testified that he and Casey reached an agreement in open court to settle the matter and that he discussed the settlement with Casey in plaintiff’s presence. During that discussion, Casey said that plaintiff would accept the sum and she at no time voiced any objection. When Judge Wosik in open court questioned the attorneys, they advised him of the terms of the settlement. Plaintiff was present and again she did not object.

Plaintiff testified that she was not present during either of these conversations. She stated that she told Casey she would not accept the proffered sum of $10,000. Plaintiff’s granddaughter, Mary Lou Parsons, corroborated plaintiff’s testimony. On August 6, 1980, the trial court found that plaintiff had entered into a settlement whereby she agreed to quitclaim any interest she had in the real estate in question to defendants for $10,000.

On September 30,1980, defendants filed a petition for fees and costs pursuant to section 41 of the Civil Practice Act. The parties filed memoranda of law and the court ordered plaintiff to pay $2,590 in section 41 costs.

Plaintiff initially maintains that there was insufficient evidence adduced that she agreed through her attorney to the settlement. The existence of an agency relationship and its nature and extent may be shown by circumstantial evidence with reference to the surrounding circumstances and acts of the parties. (Kalman v. Bertacchi (1978), 57 Ill. App. 3d 542, 373 N.E.2d 550.) While an attorney’s authority to settle must be expressly conferred, the existence of the attorney of record’s authority to settle in open court is presumed unless rebutted by affirmative evidence that authority is lacking. (Bradford Exchange v. Trein's Exchange (7th Cir. 1979), 600 F.2d 99; United States v. Kenner (7th Cir. 1972), 455 F.2d 1; cf. Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145,68 N.E. 534.) Moreover, where a party silently stands by and permits her attorney to act in her behalf in dealing with another in a situation where the attorney may be presumed to have authority, the party is estopped from denying the agent’s apparent authority as to third persons. See Kalman v. Bertacchi.

The record fully supports the trial court’s finding that plaintiff, through her attorney, consummated a binding settlement on August 1, 1979. Defendants’ counsel testified that plaintiff was present and heard all the terms of the settlement, and Judge Wosik’s order supported that testimony. Despite plaintiff’s and her granddaughter’s denial, we cannot say that the court’s finding is against the manifest weight of the evidence. See Brody v. Hess (1979), 75 Ill. App. 3d 402, 394 N.E.2d 570; Kalman v. Bertacchi; People ex rel. Illinois State Dental Society v. Iole (1974), 19 Ill. App. 3d 894, 312 N.E.2d 328; Thomas v. Colorado Trust Deed Funds, Inc. (10th Cir. 1966), 366 F.2d 136.

Nor do we believe that the Statute of Frauds (Ill. Rev. Stat. 1979, ch. 59, par. 2) is applicable to the present case. Section 2 provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, * * * unless such contract # # " shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. This section shall not apply to sales ® * * by any officer or person pursuant to a judgment or order of any court in this state.” (Emphasis added.)

We believe that an agreed order was orally consummated on August 1, 1979, as evidenced by Judge Wosik’s written order entered that day referring to a settlement. After presenting the settlement to the trial court for its approval, any subsequent performance of the settlement would have been “pursuant to order of the court” and therefore within the statutory exception to the Statute of Frauds. Accordingly, we hold that for purposes of the Statute of Frauds, a binding and enforceable agreed order may be transacted orally provided that it is clear the trial court assents to the settlement.

Plaintiff nevertheless maintains that the Statute of Frauds must apply to the preliminary issue of the attorney’s authority to enter into the agreed order. This assertion begs the question. When the trial court assents to a settlement, thereby rendering the sale one pursuant to order of the court, the trial court has impliedly made a determination as to the parties’ consent and their attorneys’ authority. The safeguards of the Statute of Frauds are fully met when a settlement is reached in open court in the presence of the parties. Accordingly, the Statute does not apply to the circumstances of the present case.

Plaintiff also contends that the trial court committed reversible error in excluding certain testimony by her and her granddaughter. Plaintiff testified that in Judge Wosik’s presence she told her attorney that the subject property was worth $35,000 and that she wanted $17,500 in settlement. Plaintiff also testified that she called her attorney on August 2, 1979, to tell him that she would not accept the settlement. Upon defendants’ objections to these answers, the testimony was stricken as inadmissible hearsay. Plaintiff’s granddaughter was similarly not permitted to testify that she heard plaintiff tell her attorney she would not accept the settlement. Where the making of the statement carries with it legal significance, the statement is admissible as a legally operative fact. (E. Cleary & M. Graham, Handbook of Illinois Evidence §801.5, at 401 (3d ed. 1979).) The existence and extent of an agency relationship is contractual in nature and plaintiff’s statements to her counsel delineating the scope of the contract were admissible on this basis. (Rice & Bullen Malting Co. v. International Bank (1900), 185 Ill. 422, 56 N.E. 1062; Geraci v. Sultan (1932), 268 Ill. App. 294; 6 Wigmore, Evidence §1770, at 259-62 (Chadbourn rev. 1976); cf. Digman v. Johnson (1960), 18 Ill. 2d 424, 164 N.E.2d 34.) The trial court erred in excluding this testimony,

Yet the exclusion of such testimony does not mandate a reversal unless the exclusion affected a substantial right causing prejudice. (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a).) Where substantially the same testimony ultimately is admitted, there is no prejudice as a result of the improper exclusion. (O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 364 N.E.2d 533.) Plaintiff had previously testified that in a discussion with her attorney on August 1, 1979, just outside the courtroom, he told her that defendants wished to settle for $10,000 and she replied that she would not. This testimony sufficiently set forth plaintiff’s position as to the limits of her counsel’s contractual authority to settle. Consequently, she was not prejudiced by the other exclusions. (O’Brien v. Walker.) The trial court also ruled that plaintiff could not testify as to her conversation with her attorney on August 1. We need not address the correctness of this ruling since no offer of proof was made. City of Chicago v. Merton Realty (1981), 99 Ill. App. 3d 101, 424 N.E.2d 1326.

Plaintiff also contends that the trial court erred in awarding defendants section 41 fees and costs. We need only consider the timeliness of the section 41 petition.

The statute which was amended in 1977 now states that where allegations in pleadings are untrue and made without probable cause, the opposing party may recover fees and costs provided a petition is filed within 30 days after the judgment. (Ill. Rev. Stat. 1979, ch. 110, par. 41.) The statute is penal in nature and therefore is to be construed strictly. (Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 425 N.E.2d 1060; Medical Modalities Association v. Quick (1978), 65 Ill. App. 3d 300, 382 N.E.2d 620.) Where statutory language is clear and unambiguous we are not free to interpret or broaden its terms. (Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 206 N.E.2d 709.) We believe that defendants’ petition, filed in excess of 30 days after entry of the specific performance judgment, was untimely.

Defendants nevertheless maintain that a section 41 petition for fees is timely so long as the trial court has jurisdiction over the cause. We do not agree. Prior to the 1977 amendment, section 41 did not provide a quantified limitation period for filing a petition. Instead, section 41 provided that fees were to be assessed “at the trial.” A number of cases held that “the trial” period extended so long as the court had jurisdiction, and that petitions filed during that period were timely. (See, e.g., Sarelas v. Law Bulletin Publishing Co. (1969), 115 Ill. App. 2d 205, 253 N.E.2d 168.) When our legislature amended section 41, however, it deleted the phrase “at the trial” and replaced it with the present 30 day rule. A legislative amendment is presumed to change the law existing prior to its enactment. (Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197.) We believe that the passage of a precise 30-day limitation in the face of existing decisions permitting section 41 filings in excess of 30 days evinces legislative intent to limit the period during which a party is subject to the terms of a penal statute. In so holding, we are aware of the decision of this court in In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, which follows Sarelas despite the 1977 amendment. We disagree with the reasoning enunciated therein.

Accordingly, the judgment of the circuit court of Cook County ordering specific performance of the settlement agreement is affirmed. The judgment awarding section 41 costs and fees to defendants is reversed.

Affirmed in part; reversed in part.

WHITE, P. J., and RIZZI, J., concur.


text:
    FOUR “S” ALLIANCE, INC., et al., Plaintiffs-Appellees, v. AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, Trustee, et al., Defendants-Appellants.
    First District (3rd Division)
    No. 81-600
    Opinion filed February 24, 1982.

      Churchill, Baumgartner & Phillips, Ltd., of Grayslake, for appellants.
    Wayne B. Giampietro, of Dejong, Poltrock & Giampietro, of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

The trial court found defendants to be liable to plaintiffs for deceit and misrepresentation, and it awarded judgment to plaintiffs in the amount of $20,663.87. The trial court also dismissed defendants’ counterclaim for rent. On appeal defendants contend that the judgment was beyond the scope of the pleadings; that the evidence revealed the plaintiffs did not rely on any misrepresentation; and that punitive damages were improperly awarded. Defendants also maintain that plaintiffs were liable for rent. The facts reflected by the findings of the trial judge are as follows.

William and Peter Anest are owners of S & S Petroleum Company and A & A Oil Company. The Anests had advertised for the sublease or assignment of a leasehold interest held by S & S in the subject gas station-car wash. Responding to the ad, Sobieski spoke to William Anest, who stated that the gas station’s records for the preceding year reflected average sales of 40,000 to 50,000 gallons of gasoline per month. Sobieski and Maciejewski contacted an attorney, and the three men met with Anest to negotiate a lease of the gas station. At the meeting, Anest again quoted the preceding year’s sales and assured plaintiffs that records would be produced to corroborate these figures. Plaintiffs’ counsel compiled a draft of a lease providing a term of five years, and he sent a copy to Anest. Anest then arranged to meet alone with Sobieski and Maciejewski on April 26, 1978. He gave them copies of the necessary documents including the proposed lease which he had altered, and he requested that the documents be signed at that meeting. Plaintiffs replied that they wanted their counsel’s approval along with the written statements of the prior gasoline sales before entering a contract. Anest agreed that plaintiffs could take over immediate possession and operation of the station, and that the long-term lease would be subject to these conditions. As a result, plaintiffs signed the documents forthwith and paid a one-month rental security deposit, a pro-rated rental for the last two days of April, and rent for the month of May. They also paid $9,000 for inventory and $5,000 for initial reimbursement to Anest for expenditures in rehabilitating equipment. The equipment reimbursements thereafter were to be paid in monthly installments of $500 per month.

In mid-May, plaintiffs observed that they were selling only one-third the amount of gasoline represented by Anest as having been sold. They contacted Anest, and he assured them that the sales records would be sent to their attorney immediately. Plaintiffs paid the June rent. The statements were ultimately delivered to plaintiffs the end of June by Robert Gierke, Anest’s employee. Contrary to Anest’s representations, the records reflected sales of between 10,000 to 20,000 gallons per month. Plaintiffs’ counsel thereafter contacted Anest for a meeting in order to draft a different and final lease agreement. The meeting ended abruptly when a dispute arose regarding Anest’s representations.

At the end of June, plaintiff stopped ordering gas supplies from defendants, but continued to sell the on-hand supply through July. Plaintiffs also refused to pay the July rent. Negotiations concluded the end of July when Anest solicited a meeting alone with plaintiffs. Anest suggested a reduction in rent and plaintiffs refused. Anest told them that he knew a prospective buyer for the gas station and that perhaps plaintiffs should bring out records reflecting the business as profitable. Plaintiffs refused, and Anest handed them a five-day eviction notice. Plaintiffs locked up the station the end of July.

Plaintiffs’ counsel demanded of defendants the return of the money expended by plaintiffs. Plaintiffs offered to relinquish the gas station upon payment of the requested money. Defendants refused. Although plaintiffs did not operate the station, they did not return the keys to defendants until 1979.

Anest testified that he never represented any figure pertaining to gasoline sales but might have referred plaintiffs to Gierke who had managed the subject business the preceding year. Gierke testified that on April 26, 1978, immediately after plaintiffs signed the documents but before they took possession, he told plaintiffs that gasoline sales had averaged 10,000 to 20,000 gallons per month. During their case in chief, plaintiffs testified that Gierke arrived late at the April 26 meeting, that Anest instructed Gierke to deliver the written statements to plaintiffs “immediately,” and that Gierke looked surprised but responded only that he would.

The trial court specifically found that Anest’s testimony was incredible. It also found that Anest had knowingly misrepresented the average sales in order to induce plaintiffs to lease the premises. The court awarded $5,400 in damages for the three-month period of the tenancy based on the difference between what plaintiffs actually received from gas sales and what they would have received had the representations been true. The court awarded $263.87 for improvements made by plaintiffs, and $15,000 in punitive damages. In denying defendants’ counterclaim for rent, the court found that plaintiffs had legally tendered the premises in timely manner.

Defendants first maintain that the judgment entered was beyond the scope of the pleadings. They argue that plaintiffs’ complaint merely states an action for rescission of a contract which was subject to a condition precedent, proof of sales of 40,000 gallons per month, which never occurred, and that plaintiffs were limited to such proof and such damages. We do not agree. The complaint clearly pleads facts establishing two potential contracts. The first contract alleged is the five-year lease which was subject to the condition precedent of an attorney’s approval, and the written statements of gas sales of 40,000 gallons per month. It was further alleged that these conditions never occurred. Hence, these are not allegations supporting rescission of a contract. Instead they support a related claim for restitution of moneys expended in anticipation of a duty of performance which never arose. (See Restatement (Second) of Contracts §377, at 224 (1981).) The second contract alleged is that of the month-to-month tenancy for the months of May, June and July. It is charged that plaintiffs entered into this agreement not in reliance on the written statements, but in reliance upon the oral quotations of gasoline sales by Anest. The complaint stated that these oral quotations were knowingly false. These recitals clearly allege a claim for damages for fraudulent misrepresentation. (See Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) We believe the relief awarded is wholly in accord with the theories pleaded and the proof adduced at trial. A benefit-of-the-bargain formula for damages is proper in an action for fraud. (Drew v. Beall (1871), 62 Ill. 164; Ginsburg v. Bartlett (1931), 262 Ill. App. 14.) In the present case, this is the formula applied by the trial court in allowing damages on the month-to-month tenancy claim. The court awarded the profit difference for the gas actually sold during the three months and the volume of sales which had been represented orally.

We do not believe that delivery to plaintiffs in late June of the true statements regarding the volume of gasoline sales reduced by one month the period for which plaintiffs are entitled to recover. Defendants correctly state the principle that one cannot, as a matter of law, be said to rely on a misrepresentation, once the falsity of the statement is made known. (Knightsbridge Realty Partners, Ltd-75 v. Pace (1981), 101 Ill. App. 3d 49, 427 N.E.2d 815.) The record reveals, however, that the gas which was sold in July had been purchased prior to plaintiffs’ receipt of the statements and that after discovery of the fraud at the end of June plaintiffs ceased purchasing supplies from defendants. Under these facts, plaintiffs were entitled to mitigate their damages by disposal of the on-hand gas supply in July. (5 Corbin on Contracts §1044, at 275 (1964).) They are entitled to recover for the entire three-month period of sales.

Defendants next maintain that their evidence, presented through Gierke, compels the conclusion that plaintiffs, as a matter of law, did not rely on the misrepresentation. As we have noted, Gierke testified that before plaintiffs took possession he told Sobieski the actual sales figures. Defendants insist that Gierke’s testimony was not contradicted or impeached and must be accepted. The record discloses, however, that during their case in chief, Sobieski and Maciejewski testified that Gierke merely “looked surprised” when Anest instructed him to deliver the records to plaintiffs and that he agreed to do so. The clear import of this testimony is that Gierke was not ready with the figures. The trial court was not required to accept Gierke’s testimony.

Defendants also contend that the trial court erred in awarding punitive damages to plaintiffs. We will not reverse a trial court’s decision to award punitive damages absent an abuse of discretion. (Queen v. Behm (1978), 58 Ill. App. 3d 253, 373 N.E.2d 1382.) Punitive damages are penal in nature and are not favored in the law. (Pierce v. Dejong (1973), 13 Ill. App. 3d 889, 300 N.E.2d 782.) Yet, where a party knowingly induces another to contract by the making of “willful, wanton, and grossly fraudulent misrepresentations” punitive damages may be charged. (Laughlin v. Hopkinson (1920), 292 Ill. 80, 89, 126 N.E. 591. See also Gass v. Gamble-Skogmo, Inc. (7th Cir. 1966), 357 F.2d 215.) In Laughlin, the court allowed punitive damages where defendant falsely and knowingly misrepresented the past sales of a retail clothing store in order to induce plaintiff to purchase an interest in the business.

The trial court here properly awarded punitive damages. The court found that Anest knowingly misrepresented the past sales of gasoline to be 40,000 to 50,000 gallons per month when they had in fact been 10,000 to 20,000 gallons per month. These misrepresentations were repeated at various stages of the negotiations and were clearly material to plaintiffs’ decision to enter the month-to-month tenancy. Each time plaintiffs requested the records Anest assured them the records would be forthcoming immediately. The trial court did not abuse its discretion in granting punitive damages.

We briefly address plaintiffs’ request that this.court include in the damage award an additional $6,500 representing the $5,000 initial reimbursement for equipment repairs and three monthly payments of $500 for reimbursements. Plaintiffs maintain that since the long term lease obligation never came into being, they are entitled to recover those sums expended in anticipation of that lease. Plaintiffs correctly state the general rule that where a duty of performance does not arise due to the nonoccurrence of a condition then a party is entitled to restitution of moneys expended in reliance on or part performance of that duty. (See Restatement (Second) of Contracts §377, at 224 (1981).) On the other hand, plaintiffs are not entitled to restitution for moneys paid in order to enter the month-to-month tenancy if upon discovery of the misrepresentation they elect to affirm and not rescind that contract and sue for damages as they have done here. (Allen v. Henn (1902), 197 Ill. 486, 64 N.E. 250.) Since it is unclear whether the requested $6,500 was money expended to enter the month-to-month tenancy, or whether it was strictly intended to be dependent on the long-term lease, plaintiffs have failed to meet their burden of showing an entitlement to this money. The trial court’s award of damages was proper and adequate.

We finally consider defendants’ contention that the trial court erred in dismissing their counterclaim for rent. Defendants argue that the five-year lease was subject to a condition precedent which never occurred. They thus maintain that plaintiffs’ retention of the keys until 1979 constitutes a retention of possession of the premises as holdover tenants. Anest served a five-day eviction notice on plaintiffs in the latter part of July and plaintiffs ceased all operations at the station a few days later, boarding up the premises. In all significant respects, plaintiffs recognized the termination of their tenancy and relinquished possession. Under the circumstances, the retention of the keys did not constitute conclusive evidence of a constructive possession. Indeed, Gierke testified that he was able to gain access and had visited the premises. The trial court was justified in denying the counterclaim for rent.

For the reasons stated the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

WHITE, P. J„ and McGILLICUDDY, J., concur.


author: JUSTICE LORENZ

text:
    HERBERT J. NICHOLL et al., Plaintiffs, v. ROBIN ROMERO SCALETTA, Defendant-Appellant.—(MARY NICHOLL, Plaintiff-Appellee.)
    First District (5th Division)
    No. 81-720
    Opinion filed February 26, 1982.
    Rehearing denied April 2, 1982.

      Glen E. Amundsen and Victor J. Piekarski, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellant.
    Geoffrey G. Johnson, of Harvey L. Walner & Associates, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs filed an action against defendant to recover damages for personal injuries sustained when their car was rear-ended by defendant’s car. The court entered a directed verdict against defendant on the issue of liability. The jury awarded zero damages to Herbert Nicholl and $500 to Mary Nicholl, an amount less than her claimed medical expenses and loss of wages. The trial court granted a new trial on the issue of damages with respect to Mary Nicholl only, and we granted leave for defendant to file an interlocutory appeal from this order pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1979, ch. 110A, par. 306).

The issues presented on appeal are: (1) whether the trial court abused its discretion by granting a new trial on the issue of damages, (2) whether the trial court prejudicially erred in its instruction to the jury, and (3) whether defendant presented this court with a proper record for review.

The pertinent facts are:

On March 29, 1974, defendant’s automobile struck the rear of plaintiffs’ car, which was stopped to make a turn on Lincoln Avenue in Lincolnwood, Illinois. Defendant was travelling from 15 to 20 m.p.h. at the time of the collision. Plaintiffs’ car was pushed forward one or two feet, but there was no damage to the exterior of their car. When asked by the police if there were any injuries, both plaintiffs responded that they were “all right,” and they did not seek emergency room treatment.

Neither plaintiff sought medical attention until three or four days after the accident when they visited Dr. Marshall Kanter. Although Dr. Kanter noted the same findings upon examination of both, he considered it necessary to hospitalize Mary Nicholl only. Her subjective complaints included stiffness, plus pain in the pelvic area and in her lower stomach.

The following day she was admitted to Martha Washington Hospital for a 10-day stay. Dr. Kanter testified that he diagnosed some limitation of movement in her neck but none in her lower back. During this hospitalization she received physical therapy and was examined by an orthopedic surgeon, Dr. Leonard Smith, who found limitation of movement in her lower back. Dr. Kanter conceded that, other than traction, the treatment she received in the hospital could have been given in his office.

Mary Nicholl testified that she saw Dr. Kanter for a minimum of 30 visits from her hospital discharge in April until the following August. Dr. Kanter, however, testified that he only treated her on 11 visits in 1974.

In July 1974, Mary Nicholl went to see Dr. Smith. He gave her injections and sent her to Chicago Physical Therapy Center to receive physical therapy treatments three times a week for two months. Dr. Smith admitted on cross-examination that he is a stockholder of the Chicago Physical Therapy Center, which shares an office suite with his own office.

In April 1975 she returned to see Dr. Smith because of a return of stiffness in her neck and shoulders. He recommended that the same physical therapy treatments be given. She received 20 treatments in 1975 from Dr. Virginia Breszahan, a chiropractor at the Center, over a six-week period. However, Dr. Breszahan testified that she only gave plaintiff seven physical therapy treatments in 1975.

The combined hospital and doctor bills totalled $2,269.25. Dr. Kanter sent the bill for his services to Mary Nicholl’s attorney instead of sending it to his patient. Although the bill was sent in 1974 and was not paid, a follow-up bill was not sent to Mary Nicholl until five years later, in May of 1980. Similarly, Dr. Breszahan sent her bill to the plaintiffs in June 1975, and although they never paid, a follow-up bill had not been sent as of the time of trial in September 1980.

In addition to medical expenses, Mary Nicholl claimed loss of wages of $25 per week plus tips for six weeks work as a waitress. However, her income tax return for 1974, the year of the accident, reported that she earned no income that year.

Following the presentation of the evidence, the trial court directed a verdict against defendant on the issue of liability. During closing argument, plaintiffs’ counsel contended that Mary Nicholl suffered damages totalling $2,269.25 and that she deserved a verdict of between $17,500 and $19,000.

The jury was instructed, pursuant to defendant’s instruction No. 9, as follows:

“You need only decide what injuries to plaintiff, Mary Nicholl, resulted from this occurrence and what amount of money will reasonably and fairly compensate the plaintiff for those injuries.”

Plaintiffs’ counsel specifically objected to this instruction during the instruction conference and in the post-trial motion.

The jury returned a verdict of $500 in favor of plaintiff Mary Nicholl and nothing for her husband. They filed a post-trial motion seeking a new trial specifically urging that, as to Mary Nicholl, the verdict and judgment were (1) contrary to the law, (2) contrary to the evidence, and (3) contrary to the manifest weight of the evidence. Plaintiffs also argued that giving defendant’s instruction No. 9 was reversible error which required a new trial.

Without explaining the basis for its ruling, the court granted a new trial on the issue of damages as to Mary Nicholl only, and defendant appeals from that order.

Opinion

At the threshold, we consider Mary Nicholl’s argument that we are precluded from reviewing the order granting a new trial because the record on appeal is incomplete. Plaintiff accurately points out that the record does not contain the original jury instructions tendered by both parties. Since the trial court granted a new trial without comment, Mary Nicholl argues that the allegedly improper instruction may have been the basis for its decision. Therefore, she contends that this court cannot determine whether it was error to give this instruction or whether the trial - court corrected the alleged error by granting a new trial.

It is well settled that before an issue on instructions will be considered by the reviewing court, the instructions must be presented to the reviewing court. Denniston v. Skelly Oil Co. (1977), 47 Ill. App. 3d 1054,362 N.E.2d 712.

In the present case, however, the jury instructions given were fully reported in the transcript of the trial court proceedings. Although we agree that the original jury instructions should have been included in the record on appeal, we find that the instructions are sufficiently set forth in the trial transcript. Pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1979, ch. 110A, par. 306), the record on appeal in the present case properly consists of what is necessary to present the questions for review.

Furthermore, we note that it is Mary Nicholl, plaintiff-appellee, and not the defendant-appellant who first raises the issue of allegedly improper instruction on the one hand, and on the other argues that the instruction is not in the record for us to review.

Mary Nicholl’s argument is not convincing in light of the fact that any other party may file a supplemental record within 21 days of the petition for leave to appeal. (Ill. Rev. Stat. 1979, ch. 110A, par. 306.) Where the appellee fails to ask for additional portions of the record, he acquiesces in the appellant’s opinion that every part of the record essential to properly present the questions raised on appeal has been certified to the reviewing court. Finn v. Glos (1915), 268 Ill. 350,109 N.E. 351.

We next consider whether the trial court prejudicially erred by giving defendant’s instruction No. 9, which is a modification of the Illinois Pattern Jury Instructions, Civil, No. 23.01 (2d ed. 1971) (hereinafter referred to as IPI Civil No. 23.01) on admitted liability.

The instruction reads as follows:

“You need only decide what injuries to plaintiff, Mary Nicholl, resulted from this occurrence and what amount of money will reasonably and fairly compensate the plaintiff for those injuries.” (Emphasis added.)

The “Notes on Use” which follow IPI Civil No. 23.01 recommend that the phrase “what injuries to plaintiff resulted from this occurrence” be used only if an issue exists as to whether some or all of the damages were caused by the occurrence.

Since defendant’s liability was directed by the court, plaintiff argues that the included phrase allowed the jury to improperly consider whether or not all of her injuries resulted from the March 1974 accident or from another accident somewhere else. Defendant, however, contends that this instruction goes to the legitimacy of plaintiff’s injuries, and whether her medical expenses were necessarily incurred as a result of the accident.

It is well settled that an instruction which states the law with substantial accuracy will not be regarded as erroneous merely because of inadvertent inaccuracies and omissions which are not prejudicial (35 Ill. L. & Prac. Trial §272 (1958)), and a reviewing court will not reverse the trial court for faulty instruction unless it clearly misled the jury. Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 250 N.E.2d 537.

The proper approach in considering the propriety of an instruction is whether the instructions when considered as a whole were sufficiently clear so that the jury was not misled, and not whether the instruction is mechanically correct so as not to be subject to some technical objection. (Hulke v. International Manufacturing Co. (1957), 14 Ill. App. 2d 5, 142 N.E.2d 717.) Furthermore, all that is required in order to justify giving an instruction is that there is some evidence in the record which supports the theory set out in the instruction. Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266.

In the present case, the testimony of plaintiff’s own witnesses, relating to the legitimacy of plaintiff’s injuries, was conflicting and contradictory. No evidence of any other accident was presented at trial which might have confused the jurors.

The test of the propriety of instructions is not what meaning the ingenuity of counsel can attribute to them, but how ordinary men acting as jurors will understand the instructions under the evidence before them. (Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241.) In the present case there was absolutely no evidence of any other accident or occurrence which could have been the cause of plaintiff’s injuries. Thus, there is no reasonable likelihood that the jurors would speculate that her alleged injuries were caused by anything other than the accident with defendant. Under these circumstances, we conclude that it was not prejudicial error to give the entire IPI Civil No. 23.01.

Next, plaintiff points out that defendant did not respond at trial to plaintiffs argument that IPI Civil No. 23.01 constituted prejudicial error. On appeal, plaintiff contends that defendant is now estopped from arguing to the contrary, and that defendant’s lack of response is an admission of prejudicial error. Plaintiff does not cite to any authority in support of her position.

It is an elementary rule of appellate practice that an appellant may not make a point merely by stating it without presenting arguments in support of it. (Reichelt v. Anderson (1921), 222 Ill. App. 176.) This court will not research and argue a case for an appellant. (Consultants & Administrators, Inc. v. Department of Insurance (1982), 103 Ill. App. 3d 920.) Because no citation to authority has been presented in support of plaintiff’s statement, we will therefore not consider it here.

We now consider whether the trial court abused its discretion in granting a new trial on the issue of damages only.

It is well established that a motion for a new trial is granted in the sound discretion of the trial court (Di Maso v. Wieboldt Stores, Inc. (1976), 37 Ill. App. 3d 966, 347 N.E.2d 466) and should not be disturbed unless a clear abuse of that discretion is shown (Bentley v. City of Chicago (1979), 79 Ill. App. 3d 1028, 398 N.E.2d 912) which must affirmatively appear in the record. Skiba v. Ruby (1969), 113 Ill. App. 2d 170, 251 N.E.2d 771.

Since, as a general rule, a new trial will not be granted on the ground that the damages in personal injury actions are too small (Childress v. Kuhnline (1971), 133 Ill. App. 2d 890, 272 N.E.2d 427), appellate review of the granting of a new trial limited to the issue of damages is essentially a review of the trial court’s exercise of discretion. (Robbins v. Professional Construction Co. (1977), 45 Ill. App. 3d 524,359 N.E.2d 1121, affd (1978), 72 Ill. 2d 215, 380 N.E.2d 786.) An abuse of discretion will be found where there is no reasonable basis in the evidence to support the granting of a motion for a new trial by the trial court. Potter v. Rodrick (1979), 77 Ill. App. 3d 7, 395 N.E.2d 746.

We recognize that courts are traditionally reluctant to interfere with a jury’s determination of damages. (Terracina v. Castelli (1979), 80 Ill. App. 3d 475, 400 N.E.2d 27.) Generally, a jury’s finding of damages will not be overturned unless its award is palpably inadequate or against the manifest weight of the evidence (Palmer v. Avco Distributing Corp. (1979), 75 Ill. App. 3d 598, 394 N.E.2d 480, aff’d in part, rev’d in part (1980), 82 Ill. 2d 211, 412 N.E.2d 959) or unless it is clear that the jury disregarded a proven element of damages (Hehir v. Bowers (1980), 85 Ill. App. 3d 625, 407 N.E.2d 149).

Therefore, in order to determine whether a jury verdict on the amount of damages is inadequate for any of the foregoing reasons, we must consider the record as a whole. Ford v. Baker (1978), 61 Ill. App. 3d 45, 377 N.E.2d 853.

The variables which enter into a review of the entire record have been outlined in the case of Haleem v. Onate (1966), 71 Ill. App. 2d 457, 219 N.E.2d 94. There, the court stated that a mathematical computation of the bills received and of an alleged loss of earnings does not automatically constitute a minimum level of recovery which is binding upon either the jury or a court of review. The Haleem case also indicated that there may be evidence which carries an implication that the injuries were exaggerated or even feigned, or that medical treatment was unnecessary or prolonged.

All of these and like factors must be weighed by a reviewing court, and if there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses incurred, then the verdict of the jury should not be disturbed on review. Potter v. Rodrick (1979), 77 Ill. App. 3d 7, 395 N.E.2d 746.

The Haleem principle was recently affirmed in the case of Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266. There, we held that a damage award arising out of a vehicular accident cannot be set aside solely because it is less than out-of-pocket expenses where a genuine conflict exists concerning the extent of the plaintiff’s injuries, his ability to work and the legitimacy of the expenses.

With these principles in mind we have, accordingly, reviewed all the evidence produced at trial. In the present case, there was substantial evidence indicating that medical treatment received was unwarranted or prolonged. Mary Nicholl’s testimony relating to the number of treatments she received contradicted her doctors’ testimony. Her claim of lost wages was not supported by her income tax return for the year of the accident, a return which shows that she earned no income in 1974. One of her doctors was a stockholder in the physical therapy center, and he stood to personally profit from the duration of her stay therein.

In addition, her doctor sent her medical bill to her attorney instead of to her, seemingly in anticipation of favorable litigation. Two of her doctors had not sent follow-up bills as of the time of trial, nearly five years later.

Here, the record reveals that the jury had ample reason to question the nature and extent of the alleged injury to Mary Nicholl as well as the legitimacy of her expenses. If there is no question that the claimed out-of-pocket medical expenses are legitimate and reasonable, a verdict for less than that amount may be set aside by the trial court. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266.) However, where the evidence suggests a genuine conflict as to the legitimacy of medical expenses incurred, then the verdict of the jury should not be disturbed on review. Tipsword v. Johnson (1978), 59 Ill. App. 3d 834, 376 N.E.2d 85.

In the present case, we do not find that the award was palpably inadequate or against the manifest weight of the evidence, or that the jury disregarded a proven element of damages. On the contrary, we find that there was no reasonable basis in the evidence to support the granting of a new trial on the issue of damages only. Therefore, we hold that the trial court abused its discretion.

Finally, plaintiff contends that defendant did not offer any evidence of her own which would contradict the doctors who testified for plaintiff. Plaintiff’s argument is not persuasive because the plaintiff still had the burden of proving causation, and the nature and extent of her alleged injuries, even though liability was established as a matter of law. Jeffrey v. Chicago Transit Authority (1962), 37 Ill. App. 2d 327, 185 N.E.2d 384.

A defendant may cross-examine the witnesses put on by plaintiff to demonstrate that the expenses claimed by the plaintiff are excessive. As we stated in Robin v. Miller (1978), 67 Ill. App. 3d 656, 384 N.E.2d 889:

“The mere fact that the verdict is less than the claimed special damages does not necessarily mean that the award is inadequate even where the defendant has offered no contradictory evidence; the jury is free to determine the credibility of the witnesses and to assess the weight to be accorded their testimony.” Robin v. Miller (1978), 67 Ill. App. 3d 656, 661.

We conclude, therefore, that the judgment of the trial court in granting a new trial was improper. For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Reversed.

SULLIVAN, P. J., and MEJDA, J., concur.


author: PRESIDING JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FRANK J. LaFRANK et al., Defendants-Appellees.
    Fifth District
    No. 81-248
    Opinion filed March 1, 1982.
    Donald Weber, State’s Attorney, of Collinsville (William C. Evers, III, Assistant State’s Attorney, of counsel), for the People.
    William J. Billeaud, of Massa and Billeaud, of Collinsville, for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court;

The State of Illinois appeals from an order of the circuit court of Madison County which denied its motion to vacate the court’s findings and order.

Defendants, John Lozier and Frank J. LaFrank, were charged under a Collinsville city ordinance for driving under the influence of intoxicating liquor. The arresting officer filed an affidavit stating that the defendants refused to submit to the breathalyzer test when requested in violation of section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 501.1(d)). The two cases were consolidated for hearing.

Defendants entered guilty pleas to the violation of the city ordinance, fines were imposed and each defendant was placed under court supervision for a period of one year. In each case, the court entered an order, without a hearing and over the objection of the assistant State’s Attorney, that the officer did not have reasonable grounds to believe that defendant was driving under the influence of intoxicating liquor, that he was not orally and in writing informed of his rights and that defendant did not refuse to submit to the breathalyzer. The State filed a motion to vacate the findings and order as to the refusal charge. Subsequently, the court entered the "following order:

“The above two cases were consolidated for hearing.
In each case the Court finds that the defendants were charged with driving under the influence of intoxicating liquor under the Collinsville City Ordinance; that the arresting officer filed an Affidavit that the defendant refused to take the breath test under Chapter 95-M, §11 — 501.1; that the defendant requested a hearing.
Further, on each case, on the jury assignment docket call each defendant negotiated a disposition of the charge with the Collins-ville City Attorney; that without a hearing and over the objection of the Assistant State’s Attorney, the Court entered an Order finding no probable cause to require the defendant to take the breathalyzer, and that the defendant did not refuse; and that the City Attorney, Ben Urban, did not object to the finding.
The Court holds that the State’s Attorney is not a party to the hearing on the refusal to take the breathalyzer, and cannot object and cannot demand a hearing, when the charge of driving under the influence is under a City Ordinance as opposed to under the Illinois Vehicle Code.
The Motion to Vacate the finding and Order is therefore denied.”

On appeal, the State challenges the propriety of the above order. The substance of the State’s argument is that the Collinsville city attorney did not have the authority to prosecute, or in this case, to negotiate the disposition of the refusal charge. It is undisputed by the parties, and evidenced by the court’s order, that the city attorney negotiated the pleas of both defendants. As best we can determine from the record, the agreement was that a fine would be imposed and supervision ordered on the DUI charge and, in turn, the refusal charge would be effectively dropped. The State’s Attorney was not involved in the negotiations and did not agree to the terms.

The duty of the State’s Attorney shall be, inter alia, “[t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.” (Ill. Rev. Stat. 1979, ch. 14, par. 5.) Section 16 — 102 of the Illinois Vehicle Code specifically provides:

“The State’s Attorney of the county in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State’s Attorney.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 95%, par. 16 — 102.)

In the instant case, there is no indication that the Collinsville city attorney requested permission from the State’s Attorney to prosecute this violation and it is obvious, from the posture of this appeal, that such permission has not been given.

In Village of Hoffman Estate v. Spychalski (1975), 33 Ill. App. 3d 83, 337 N.E.2d 463, a traffic accident case, the defendant was charged with the failure to yield the right of way in violation of section 11 — 904 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 904.) The action was brought in the name of Village of Hoffman Estates and prosecuted by the municipal attorney although the record failed to disclose that the municipal attorney was given permission to do so as required by section 16 — 102. (Ill. Rev. Stat. 1973, ch. 95%, par. 16 — 102.) The court held that, absent written permission from the State’s Attorney, the municipal attorney cannot prosecute a violation of the Illinois Vehicle Code.

Village of Hoffman Estates involved a failure to yield right of way in violation of section 11 — 904 of the Illinois Vehicle Code, whereas, the instant case involves a charge of driving under the influence of intoxicating liquor in violation of a Collinsville city ordinance and refusal to submit to the breathalyzer test in violation of section 11 — 501.1 of the Illinois Vehicle Code. The Collinsville municipal attorney had the authority to prosecute the violation of the city ordinance; however, the State’s Attorney not only had the authority, but also the duty, to prosecute the alleged violation of the Illinois Vehicle Code. In the absence of written permission from the State’s Attorney, the Collinsville city attorney had no authority to prosecute or to negotiate the disposition of the refusal charge. Therefore, the court erred in finding that the State’s Attorney was not a party to the litigation.

Section 11 — 501.1(d) of the Illinois Vehicle Code provides that, following a lawful arrest for a violation of section 11 — 501 of the Code or similar provisions of a municipal code, and a subsequent refusal to submit to the breathalyzer test,

“The Clerk shall thereupon notify such person in writing that his privilege to operate a motor vehicle will be suspended unless, within 28 days from the date of mailing of the notice, he shall request in writing a hearing thereon. If such person fails to request a hearing within such 28 day period, the Clerk shall so notify the Secretary of State who shall automatically suspend such person’s driver’s license, 0 °
If such person desires a hearing, he shall file a complaint in the Circuit Court for and in the county in which he was arrested for such hearing. Such hearing shall proceed in the Court in the same manner as other civil proceedings, except that the scope of such proceeding shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11 — 501 of this Act or a similar provision of a municipal ordinance, whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing 999 that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test upon request of the officer. 9 ” *” Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 501.1(d).

In the instant case, defendants made timely requests for implied consent hearings as required by section 11 — 501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95}á, par. 11 — 501.1(d)). The court made a finding in favor of the defendant without a hearing. A finding in favor of a defendant in an implied consent hearing is final and appealable (People v. Kallem (1979), 69 Ill. App. 3d 658, 387 N.E.2d 846) and can be overturned on appeal if found to be contrary to the manifest weight of the evidence. (Village of Park Foresto. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.) However, in the instant case, no hearing was held and thus, there is no evidence upon which to review the holdings.

If defendants had withdrawn their requests, then the court should have notified the Secretary of State, who must automatically suspend the defendants’ drivers licenses. (Ill. Rev. Stat. 1979, ch. 9Sá, par. 11 — 501.1(d).) If the requests have not been withdrawn, then a hearing must be held with the State’s Attorney assuming his duty as prosecutor. Inasmuch as we hold that the Court had no authority to negotiate the disposition of the refusal proceeding in the manner it did, we would consider defendants’ requests for a hearing to be operative and pending and, accordingly, we reverse and remand for the purpose of a hearing as required under section 11 — 501.1(d) of the Code.

Reversed and remanded with directions.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ZEMBLIDGE, Defendant-Appellant.
    First District (5th Division)
    No. 80-1463
    Opinion filed February 19, 1982.
    Ralph Ruebner, of State Appellate Defender’s Office, of Chicago, and Peter B. Nolte, of Rockford, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Barry A. Gross, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2), burglary with intent to commit armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 19 — 1) and rape (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 1(a)). He received a six-year sentence for rape and a six-year sentence for armed robbery. On appeal, defendant asserts that the trial court erred (1) when it refused to accept his waiver of a jury trial and (2) when it refused to allow the defense to rehabilitate one of its witnesses after impeachment by the State. The pertinent facts follow.

Prior to trial, defendant moved to suppress testimony concerning a lineup procedure which was denied.

At the trial, the victim testified that she was living on North Richmond on the night of January 15, 1976. She heard a knock and went to investigate, whereupon she observed a black man through the window. He asked for “Roberto” and she told him to go to the front of the building. He returned approximately two minutes later and asked to use the telephone. She told him she did not have a telephone and then she went to dial the police. The apartment door was then broken open by defendant, who was not the same man who previously knocked on the door. Defendant was a tall white person with light curly hair, holding a revolver in his hand. He tore the telephone off the wall and then demanded money. She gave him $10 and he told her to follow him. In the living room, he told her to open her blouse and then pushed her into the bedroom, where he forced her to have sexual intercourse with him. After he left, she went to her landlord’s house and called the police.

Approximately two weeks later, she observed defendant and the black man, who had initially knocked on her door, walking down the street. Police were called, and she later attended a lineup where she identified defendant as her assailant.

Defendant’s mother testified that on the date in question, defendant came home from work at approximately 8 p.m. and had invited some friends over. She stated that she watched television and talked with defendant and his friends from 10 until 11 p.m.

Lisa Matza also testified for defendant. She stated that she went to defendant’s home around 9:10 p.m. on January 15, 1976, and that they watched television and talked. She left his home somewhere between 11:05 and 11:10 p.m. She further testified that after she heard that defendant had been arrested for the January 15 incident, she recalled the party on that date because she had written it down in her datebook, which she still possessed.

Lisa was questioned about the datebook on cross-examination. At that point, the State made a motion to exclude the use of the datebook because it was not provided to the State in pretrial discovery. Defense counsel claimed that he had only become aware of its existence the prior evening and that given the nature of the cross-examination of the witness calling into question the existence of the book and its validity, the defense should be allowed to introduce the book on redirect to rehabilitate their witness. The trial court determined that the datebook was not admissible because it was hearsay and not admissible under any exception.

Defendant also testified on his own behalf denying that he raped or robbed the victim.

After the parties had tendered jury instructions, defendant made a motion to waive the jury. The court denied this motion and instructed the parties to proceed with closing arguments. This appeal followed.

Opinion

Defendant argues that refusal to accept the jury waiver, at the conclusion of all testimony but before closing arguments, was error. We disagree.

The power to waive a jury trial follows the existence of the right to be tried by a jury. (People v. Muniz (1964), 31 Ill. 2d 130, 198 N.E.2d 855; People v. Spegal (1955), 5 Ill. 2d 211, 125 N.E.2d 468.) Section 115 — 1 of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 1) mandates the jury trial; however, upon waiver, defendant undoubtedly has the right to a bench trial. (People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708.) The real concern in this matter, however, is the timeliness of defendant’s waiver.

Defendant had elected a jury trial, all testimony had been heard and the court had conducted a jury instruction conference. Defendant only attempted to waive the jury at the commencement of final arguments. This motion was objected to by the State and, the court, acknowledging that the evidence had already been presented, denied this motion. We believe that under these circumstances this action was proper.

The authorities cited by defendant to support his position are distinguishable from the present instance. See People v. Spegal, where the attempt to waive jury trial was made before trial and without objection by the State. Our supreme court concluded it was error for the trial court to override the defendant’s choice of whether he was to be tried by a jury or by the court. In Spegal, defendant’s attempted motion was timely; in this instance, it was not. And similarly, in People v. Reed (1974), 23 Ill. App. 3d 546, 319 N.E.2d 557, defendant made a pretrial motion to waive the jury, where the record in the instant case does not disclose any such attempt.

While it is true as defense counsel argues that the statute (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 6) does not place any limitation on the time when a waiver can be made, we believe that a limitation is inherent in the language of the statute; otherwise, our- criminal system and procedure becomes subject to the whims of defendants and our judicial process becomes a mockery. Practically speaking, every attorney would advise his client to elect a jury trial and at the conclusion of the evidence, if things did not look favorable, a defendant would be urged to waive this method of trial. We believe this trial strategy would impede the prompt and fair administration of justice, would be an improper utilization of jurors’ time, and a waste of State resources and expenditures. These policy considerations prompt us to conclude that once an election for a jury trial is made and testimony begins, defendant has no absolute right to waive the jury. Just as a motion to withdraw a jury waiver is addressed to the sound discretion of the trial court (People v. Simpson (1979), 74 Ill. App. 3d 531, 393 N.E.2d 740) and considered untimely after commencement of trial (People v. Norris (1978), 62 Ill. App. 3d 228, 379 N.E.2d 80), so, too, should a motion to waive the jury after commencement of trial be addressed to the sound discretion of the trial court and allowed only if these policy considerations are minimized.

Lastly, defendant contends that the court erred in refusing to allow the defense to attempt to rehabilitate defense witness Lisa Matza by admitting into evidence her diary entry for the date of the alleged offense. We disagree.

A prior out-of-court statement of a witness may not be admitted to corroborate his testimony at trial, except to rebut a charge or inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication. (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) The prior consistent statement exception applies if the statement is offered to rebut a charge of recent fabrication, and if the declarant told the same story before the motive came into evidence or before the time of the alleged fabrication. People v. Andino (1981), 99 Ill. App. 3d 952, 425 N.E.2d 1333.

In this instance, Lisa was questioned on direct examination about her recollection of the events of January 15, 1976. She indicated that she remembered the date and the party because she had written it in her datebook. On cross-examination, the State asked Lisa about entries in her datebook before and after January 15,1976. Defense counsel’s request to use the diary in redirect to rehabilitate the witness was denied. It appears that at the time the existence of the datebook was brought to, the trial court’s attention, the only purpose it could serve would be to enhance the reliability of Lisa’s testimony. (People v. Hahn (1976), 39 Ill. App. 3d 969, 350 N.E.2d 839.) We do not believe that the cross-examination of Lisa injected a fabrication notion in her testimony. Furthermore, there was no way to verify when the date notation was made and, thus, its function to “rehabilitate” is suspect. As such, we believe that the trial court properly denied defense counsel’s request to admit the datebook into evidence.

Moreover, Lisa was only one of several defense alibi witnesses and her testimony regarding the datebook was only cumulative of testimony already offered by her and other witnesses. (See People v. Smith (1978), 64 Ill. App. 3d 1045, 1048-49, 382 N.E.2d 298.) The datebook added nothing to defendant’s alibi of his activities on the date in question.

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

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.