text:
    Vern H. Tindall, as Administrator of the Estate of Faye C. Tindall and Vern H. Tindall, Individually, Plaintiffs-Appellants, v. The Farmers Automobile Management Corporation, a Corporation, Defendant-Appellee.
    Gen. No. 66-113.
    Third District.
    May 17, 1967.
    Gaskins & Sutkowski, of Peoria, for appellants.
    McConnell, Kennedy, McConnell & Morris, of Peoria, for appellee.
   STOUDER, P. J.

Appellants, Vern Tindall individually and as administrator of the estate of Faye Tindall, commenced this action for a declaratory judgment in the Circuit Court of Peoria County seeking a construction of and declaration of rights under an insurance policy issued by Appellee, Farmers Automobile Management Corporation. Appellee moved to dismiss the complaint on the grounds that the complaint failed to state a cause of action. The trial court granted the motion, dismissed the complaint and this appeal follows.

The complaint alleges that on July 4, 1963, Mr. and Mrs. Vern Tindall were passengers in an automobile owned and operated by Martin Boedecker, Mrs. Boedecker also being a passenger in the automobile. A collision occurred between the Boedecker automobile and one operated by John White, an uninsured motorist. As a result of the collision Mrs. Tindall was killed and the other occupants of the Boedecker automobile sustained serious injuries. At the time of the collision Allstate Insurance Company, not herein involved, insured Martin Boedecker as owner of the car involved, the policy containing an uninsured motorist provision with limits of $10,000 per person and $20,000 per incident. Claims were made by the Boedeckers and Appellants against Allstate under the uninsured motorist provision of such policy resulting in payment of the maximum limit of the Allstate policy of which $9,500 was paid to the Boedeckers and $10,500 to Appellants. At the time of the collision, Vern Tindall, one of the Appellants, was insured by Appellee, the policy of insurance including an uninsured motorist provision with limits of $10/$20,000. Claims were made by Appellants against Appellee for the difference between the limits of coverage afforded by Appellee’s policy and the amounts which Appellants had received from the Allstate policy. These claims were denied by Appellee. Appellants filed suit in the Circuit Court of Peoria County against John White, the uninsured motorist, in order to prevent the bar of the statute of limitations which action is still pending. The instant action was instituted seeking a declaration that coverage is afforded under the uninsured motorist provision of Appellee’s policy.

The provision of Appellee’s policy under consideration is as follows, “With respect to bodily injury to an insured while occupying an automobile not owned by a named insured . . . the insurance hereunder shall apply only as excess insurance over any similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of Part IV ($10/$20,000) exceeds the sum of the applicable limits of all such other insurance.” The trial court concluded that on the basis of the facts and the policy provisions no coverage was afforded by the policy issued by Appellee.

In seeking a reversal of the order of the trial court, Appellants contend that the language of the policy and paragraph 755(a) (§ 143a) of chap 73, Ill Rev Stats, (Ill Ins Code), require a construction of the uninsured motorist provision contrary to that adopted by the trial court. We are not presented with the usual problem of determining which of two insurance policies furnishes primary coverage. It is undisputed that the policy of Allstate provided the primary coverage and that Allstate has paid its maximum obligation under such policy. We are confronted with a problem which arises from the relationship of two insurance policies since the provision under consideration in specific terms, refers to other similar insurance.

By adopting legislation concerning the financial responsibility of motorists the legislature has shown its concern for the economic hardships arising from damages caused by financially irresponsible motorists. Chapter 7 of chapter 95^, Ill Rev Stats (1965) (Financial Responsibility Act), requires that after a motor vehicle mishap has occurred the parties involved must show some degree of financial responsibility such as liability insurance in the minimum amounts of $10/$20,000. Failure to meet the minimum financial responsibility requirement results in loss or suspension of operating or ownership privileges. Thus it can be seen that there are certain areas or gaps the results of which would impose serious financial hardship on innocent victims of automobile collisions. To protect persons from the risks and hazards beyond the scope of the Financial Responsibility Act, uninsured motorist protection has developed, indemnifying against loss or damage caused by an uninsured motorist. Paragraph 755(a) (§ 143a) of chap 73, Ill Rev Stats (Ill Ins Code), requires that liability insurance policies include uninsured motorist protection unless such coverage is rejected by the insured, the minimum limits of such coverage being as established by the Financial Responsibility Act. Such provision is designed to promote and encourage protection complementary to that afforded by the Financial Responsibility Act, thereby affording coverage to the same extent as would have been in effect if the tort feasor had complied with the minimum requirements of the Financial Responsibility Act. Chandler v. Government Employees Ins. Co., 342 F2d 420; Maryland Cas. Co. v. Howe, 106 NH 422, 213 A2d 420 and Garcia v. Motor Vehicle Acc. Indemnification Corp., 18 App Div2d 62, 238 NYS2d 195. Thus we find no support for Appellants’ assertion that the policy provision is violative of the statute i. e., paragraph 755 (a) (§ 143a) of chap 73, Ill Rev Stats (Ill Ins Code).

In Vignali v. Farmers Equitable Ins. Co., 71 Ill App2d 114, 216 NE2d 827, the court considered a provision similar to that in the instant case, the difference in facts being that in Vignali the individual claim of Plaintiff exceeded $10,000, the maximum limit for damages per person in each of the policies. Since the limits of the policies were the same, the court concluded that the primary coverage of $10,000 was similar available insurance and hence the excess coverage provision, the same as in the instant case, did not afford any coverage. We perceive no difference in the facts justifying the application of a different principle or result. That the same principle is applicable to both factual situations is recognized in the case most heavily relied upon by Appellants, namely, Bryant v. State Farm Mut. Automobile Ins. Co., 205 Va 897, 140 SE2d 817. The Bryant case, which involved a single claim in excess of the limits relative thereto, reversed the case of Travelers Indemnity Co. of Hartford, Connecticut v. Wells, 316 F2d 770, which involved claims in excess of the limitation on total claims from the same collision. In Wells, the court concluded that a provision such as in the instant case, which related excess coverage to the limits of coverage afforded by other policies, violated the Virginia state statute and hence such purported limitation of excess coverage was void.

That the primary coverage may be exhausted or insufficient to compensate fully for the damages sustained is not a sufficient basis for disregarding the language or limitation of the provision concerning other insurance coverage. Chandler v. Government Employees Ins. Co., 342 F2d 420 and Grunfeld v. Pacific Automobile Ins. Co., 232 Cal App2d 4, 42 Cal Rptr 516. Appellants are in the same position as they would have occupied had the tort feasor owned a policy with the minimum coverage required under the Financial Responsibility Act. Under the circumstances the trial court properly found that no coverage was afforded by Appellee’s policy.

Finding no error in the judgment of the Circuit Court of Peoria County, judgment is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    Mary J. Schneider, et al., by David Schneider, Their Guardian, Plaintiffs-Appellees, v. Vernon Kirk, et al., Defendants-Appellants.
    Gen. No. 66-118.
    Second District.
    May 17, 1967.

      Knight, Ingrassia & Schirger, of Rockford, for appellants.
    Eaton and Leemon, of Mt. Carroll, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is a dramshop action brought by David and Mary Schneider, husband and wife, and by David Schneider as guardian for their children, Keith and Kevin, for injuries suffered by all of said plaintiffs. The defendants were Vernon Kirk, the operator of a dramshop in Free-port, known as the Tropical Lounge, and Wesley, Augustus, Peter and Emma Stukenberg, the owners thereof. The defendants appealed to this court from a judgment entered against them and in favor of the plaintiffs on verdicts returned by the jury in the total sum of $27,000.

The plaintiffs’ injuries were suffered in an automobile accident which took place the evening of December 24, 1963, at approximately 10:30 p. m. David Schneider, accompanied by his wife and four sons, was driving home after a Christmas Eve gathering with his wife’s parents. As he was traveling east on a two-lane highway, an automobile driven by Edward Toepfer crossed over into his lane of traffic and struck his car. As a result, David Schneider and his family all suffered severe injuries, and his youngest son, age ten months, was killed.

A deputy sheriff, a state trooper, and a witness to the accident, testified, on behalf of the plaintiffs, that Toepfer was intoxicated at the time, and their opinions were based upon his appearance, actions and the odor of alcohol on his breath. It was conceded that Toepfer had been drinking prior to the accident.

The defendants offered evidence that Toepfer was at the Tropical Lounge from approximately 5:00 until 6:00 p. m., and had one or two beers during this period of time; that the Lounge closed about 6:00 p. m.; that Toepfer and his female companion then went to her parent’s house where they remained until about 8:30 or 9:00 p. m., during which time they had nothing further to drink; that they then left to go to Savanna for dinner and en route stopped for a drink; and that they were again driving toward Savanna when the accident occurred. The defendants’ proof relative to the amount and time of the drinking came primarily from Toepfer, his female companion, and the defendant Kirk. In contradiction of the defendants’ evidence, two witnesses, who testified on behalf of the plaintiffs, stated that Toepfer was still drinking in the Lounge at 8:00 p. m. on the night in question.

The defendants contend that the trial court committed prejudicial error in permitting plaintiffs’ counsel to ask certain questions during the voir dire examination of the jurors; in its evidentiary rulings; and in permitting plaintiffs’ counsel to make certain improper and prejudicial statements in his closing argument.

During the voir dire examination, plantiffs’ counsel asked each of the jurors whether they would have any disagreement with a law which provides, that when a person is injured by the act of another who is under the influence of intoxicating liquor, that the injured party may recover against the proprietor of the tavern who sold the liquor which caused the intoxication, in whole or in part. The defendants complain that the repetition of this question constituted error in that this statement did not advise the jurors that the intoxication must have been a cause or factor contributing to the injury.

We do not believe that the trial court committed error in this respect. This was a cause of action wherein the plaintiffs sought damages for injuries caused “by” an intoxicated person. In such case, even the defendants concede that the doctrine of proximate or effective causation has no relevancy. Hocker v. O’Klock, 16 Ill App2d 414, 418, 158 NE2d 7 (1958); Cope v. Gepford, 326 Ill App 171, 181,182, 61 NE2d 394 (1945).

In a “by” cause of action, the plaintiff is only required to prove that the injuries resulted from the direct affirmative act of an intoxicated person. If an intoxicated person were operating an elevator, which fell solely by reason of a faulty cable mechanism, any attendant injuries to passengers would not result from the act of an intoxicated person and there would be no causal relation between the intoxication and the injury. In such case, no liability would arise under the Dram Shop Act. If, however, there is a direct causal relation between the act committed by an intoxicated person and the injury to another, the injury is caused “by” the intoxicated person. Hernandez v. Diaz, 31 Ill2d 393, 399, 202 NE2d 9 (1964).

In Diaz, the plaintiff was shot by a guard, who was employed by the tavern, while the guard was scuffling with and trying to remove several intoxicated persons from the premises. The Supreme Court, in holding that such facts established a “by” cause of action under the Dram Shop Act, stated that the direct affirmative act of the intoxicated person need not be performed on or done to the person injured. All that need be shown in a “by” cause of action is that the affirmative act of the intoxicated person had a causal connection with the injuries sustained by the plaintiff; and a chain of causal connection between the intoxication and the injury is all that is required. Hernandez v. Diaz, ibid., 398, 399.

The statements made by plaintiffs’ counsel during the voir dire examination were not misleading in this regard. He asked the prospective jurors if they had any quarrel with a law which provided that one “who is injured by the act” of an intoxicated person may recover. Furthermore, there was no issue in the case on the question of whether it was Toepfer’s direct affirmative act which caused the injuries to the plaintiffs. There was no claim that a tire had failed or no assertion of any other mechanical insufficiency in the car itself, or that something other than the act of Toepfer led to the injuries. The issue presented to the jury was that of intoxication and whether the defendants caused it, in whole or in part.

The defendants also suggest that plaintiffs’ repetition of the dramshop question to each juror was error in that it constituted an examination, directly or indirectly, concerning matters of law contrary to the direction of Supreme Court Rule 24-1 (present Supreme Court Rule 234). This Rule was designed to limit or eliminate the extended voir dire examinations so prevalent before its adoption. However, it was not intended to prevent counsel from making pertinent inquiries to determine whether a juror might be prejudiced or biased, or to preclude counsel from intelligently exercising his right of challenge for sufficient cause or peremptorily. The People v. Lobb, 17 Ill2d 287, 300, 161 NE2d 325 (1959).

It is highly conceivable, as indicated by the responses of certain of the prospective jurors in the case at bar, that many persons among any group of potential jurors may believe that a law permitting recovery against an operator or owner of a dramshop is not just. The Dram Shop Act (Ill Rev Stats 1965, c 43, par 135) expresses a statutory philosophy which many laymen may find unacceptable. It was not a tort at common law either to give or sell liquor to an able-bodied person and, generally, negligence is not a factor in the application of this statutory remedy. However, a form of the doctrine of contributory negligence has been grafted onto the Dram Shop Act by Judicial construction under such terms as “complicity,” “participation,” or the concept of not being an “innocent suitor.” Osinger v. Christian, 43 Ill App2d 480, 484, 485, 193 NE2d 872 (1963); Douglas v. Athens Market Corp., 320 Ill App 40, 50, 49 NE2d 834 (1943); Forsberg v. Around Town Club, Inc., 316 Ill App 661, 666, 45 NE2d 513 (1942).

Consequently, in such cases, a litigant may not be adequately protected by a statement from prospective jurors that they will follow the law as given to them by the court, unless the party is first certain that each juror is generally aware of what law governs the action. The importance of permitting sufficient inquiry to uncover bias or prejudice is particularly meaningful to litigants in dramshop acts.

The defendants also complain that the court erred in permitting the plaintiffs to introduce evidence concerning a criminal indictment against Toepfer without proving a conviction thereunder. The total evidence on this subject must be reviewed in considering this alleged error. The plaintiffs’ counsel called deputy sheriff Miller as a witness. A State Police Officer was the investigating officer at the scene of the accident and Miller arrived at the scene after the State Police Officer had completed most of his investigation. On direct examination, Miller stated that he smelled liquor on Toepfer’s breath and believed that Toepfer was intoxicated. On cross-examination, defendants’ counsel asked Miller if he charged Toepfer with driving while drunk, and Miller replied that he was not the investigating officer. From Miller’s testimony it was obvious that he had not given Toepfer a ticket for drunken driving. The question asked by defense counsel was improper except for impeachment purposes or to show interest. Cavitt v. Faulkner, 74 Ill App2d 196, 219 NE2d 363 (1966); Jacobson v. National Dairy Products Corp., 32 Ill App 2d 37, 42, 176 NE2d 551 (1961). Plaintiffs’ counsel offered a mild protest to this improper question in these words, “If the Court please, if we want to get into the charges on Edward Toepfer, fine, we can get into it.”

On redirect examination by the plaintiffs and over the defendants’ objections, deputy Miller testified that Toepfer was indicted as a result of this accident. The court erred in admitting this testimony. During recross-examination, the defendants elicited the statement from Miller that Toepfer was indicted for reckless homicide. The court likewise erred in admitting this testimony. We do not agree with the plaintiffs’ contention that the door to all of this testimony was opened by the defendants when their counsel asked the deputy on cross-examination whether he gave Toepfer a ticket for being intoxicated. Under the circumstances of this case, the entire line of questioning was erroneous. However, the question of whether this constituted reversible error must be considered along with the other errors charged in this appeal. Both the plaintiffs and the defendants contributed to the improprieties in question.

Defendants also complain that plaintiffs’ counsel made improper comments in his closing argument. However, defendants’ counsel in his argument stated that if plaintiffs had a cause of action, it was against Toepfer; and that it was he — not the defendants — who should be brought into the court in the action to answer to the plaintiffs in damages. When making his argument, defense counsel was aware that Toepfer was not in the court because his insurance carrier had paid $17,500 for a covenant not to sue. Under such circumstances, his comments were improper and prejudicial. Consequently, he cannot now complain of plaintiffs’ otherwise improper retort in rebuttal: that it was unimportant why Toepfer was not a defendant — “we’re trying to recover for injuries where we can get some money.” Walsh v. Chicago Rys. Co., 303 Ill 339, 351, 135 NE 709 (1922).

The defendants also urge that the trial court erred in excluding certain evidence. Defendants’ proof indicated that Toepfer had nothing to drink before patronizing the Tropical Lounge; that he was there only from 5:00 to 6:00 p. m., during which time he had one or two beers; and that he did not drink again until approximately 9:00 or 9:30 p. m., after which he was involved in the accident. Defendants’ theory was that, absent any drinking prior to the time Toepfer was in the Lounge, when considered in connection with the quantity of beer there consumed and his abstention from drink thereafter until 9:00 or 9:30 p. m., the liquor consumed at the Lounge could not have caused his intoxication, in whole or in part.

The trial court refused to admit the testimony of Dr. Tucker, a pathologist from the Freeport Memorial Hospital. His testimony, as indicated by the offer of proof, would have been that if a person of the physical structure of Toepfer had not been eating or drinking and then had one or two beers about 5:00 p. not., and nothing further to drink until approximately 9:30 p. m., that the alcohol in the blood stream, from said beers, would have been completely oxidized and removed by 8:30 p. m. The refusal of the trial court to admit this testimony sufficiently prejudiced defendants to leave us no alternative other than to remand the action for a new trial.

Each party to a lawsuit is entitled to present relevant and material evidence in accordance with his theory of the case. The defendants made it clear that their theory was that Toepfer had not been drinking prior to the time he was served two beers at defendants’ Lounge between 5:00 and 6:00 p. m.; that he abstained thereafter until approximately 9:30 p. m.; and, therefore, he could not have been intoxicated, in whole or in part, by what he consumed at the defendants’ place of business.

A person may be held liable under the Dram Shop Act in a “by” type of action only if the intoxicating liquor served at his place of business contributed in some degree to the subsequent intoxication existing at the time of the act giving rise to the injuries. Osborn v. Leuffgen, 381 Ill 295, 298, 45 NE2d 622 (1943); Pellico v. Jackson, 70 Ill App2d 313, 328, 329, 217 NE2d 281 (1966); Baker v. Sauber, 62 Ill App2d 66, 71, 210 NE2d 223 (1965). The defendants had a right to present to the jury relevant and material evidence to sustain their theory of the case. Part of this evidence was admitted; the remainder was either excluded or presented in such an obscure manner, due to the court’s rulings, as to be of no persuasive force or effect.

The testimony of the pathologist was vital to defendants’ case. It cannot seriously be urged that the rate of oxidation and dissipation of alcohol from the blood is not subject to expert testimony. It is a matter outside of the knowledge of the average person, and was relevant and significant evidence on a material issue in this case. Miller v. Pillsbury Co., 33 Ill2d 514, 516, 517, 211 NE2d 733 (1965); also see: Woolley v. Hafner’s Wagon Wheel, Inc., 22 Ill2d 413, 419, 176 NE2d 757 (1961). The exclusion of this testimony constituted reversible error.

Plaintiffs contend that under the case of Nystrom v. Bub, 36 Ill App2d 333, 184 NE2d 273 (1962), the testimony of Dr. Tucker was not admissible. In Nystrom, the evidence which was offered and refused, was substantially the same as that offered by the defendant in this case through Dr. Tucker. And, in Nystrom, we stated that the refusal to admit this evidence was not reversible error; and that expert testimony is admissible when the subject matter is of such a character that only persons of skill and experience are capable of forming a correct judgment as to any facts connected therewith. We further stated that intoxication could be proven by any witness who had sufficiently observed the behavior of the supposed intoxicant, and that any such witness could state his conclusion as to the fact of intoxication.

We reaffirm the Nystrom rule with reference to when expert testimony is admissible, but we expressly overrule Nystrom in its application of the rule. We hold that Dr. Tucker’s testimony was intended to go to the issue of whether the liquor served by the defendants could have contributed to Toepfer’s intoxication; and that it was competent for this purpose. The question of whether the rate of oxidation and elimination of the alcohol from the blood stream was such that the drinks in question could not have contributed to Toepfer’s subsequent intoxication, was a matter beyond the skill, knowledge or comprehension of the average person. “The trend is to admit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. Miller v. Pillsbury Co., 33 Ill2d 514, 516, 517, 211 NE2d 733 (1965). It is still for the jury to accept or reject the opinion testimony.” Mack v. Davis, 76 Ill App2d 88, 94, 221 NE2d 121 (1966).

Since this case must be remanded for a new trial, we further state that we agree with the defendants’ contention that the plaintiffs’ inquiry concerning the marital status of the female companion of Toepfer was improper. The People v. Duncan, 261 Ill 339, 354, 355, 103 NE 1043 (1914); Schoolfield v. Witkowski, 54 Ill App2d 111, 125, 203 NE2d 460 (1964). We also agree with the defendants that evidence of the injuries to Toepfer at the time of the accident was also relevant and admissible as a possible explanation of his conduct and mannerisms at the time. On retrial, the attorneys and trial judge should be guided by these views.

For the reasons stated, the cause is reversed and remanded for a new trial.

Reversed and remanded for a new trial.

MORAN and ABRAHAMSON, JJ., concur.


author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Ira Moulton, Defendant-Appellant.
    Gen. No. 66-80.
    Third District.
    May 18, 1967.
    Rehearing denied June 8, 1967.

      O. B. Pace, of Lacon, for appellant.
    Peter J. Paoluci, State’s Attorney, of Lacon, for appellee.
   ALLOY, J.

Robert Ira Moulton filed in this court on October 14, 1966, a document described as “Petition for Writ of Error” asserting that he was denied his constitutional right to appointment of counsel under the Federal and State Constitutions and Rules of Court. We recognized defendant’s appeal and appointed able counsel for him. His appeal is before us under Supreme Court Rule 602 from a conviction for armed robbery which was entered on a plea of guilty to a criminal information.

On appeal in this court, defendant contends that the record discloses that he did not have counsel appointed for him at the trial level, and also that he did not make an effective waiver of indictment by the Grand Jury or of the right to appointment of counsel. On the record, the basic issue before us is whether the defendant intelligently and understandingly rejected the offer of counsel.

The record discloses that the defendant was arrested on February 28, 1966, on a criminal complaint signed by one Mildred West charging defendant with the offense of armed robbery. The complaint was approved after the court heard testimony from the complaining witness under oath. Bail was fixed in the amount of $10,000. Defendant was taken into custody and a copy of the criminal complaint was served upon him. A criminal information was filed in the Circuit Court of Marshall County charging defendant with the offense of armed robbery. The information was signed by the State’s Attorney and verified by the complaining witness under oath and also contained a list of prosecution witnesses. On the 7th day of March, 1966 (seven days after defendant was arrested), defendant appeared pro se in court on Arraignment. The court asked defendant whether he had a copy of the information and could read and understand it and then proceeded with the following:

“Q. Mr. Moulton, this Information charges you with the offense of Armed Robbery, which is a felony under Illinois law. By a felony, I mean it is a criminal offense, the punishment therefor being by sentence to the Illinois State Penitentiary. Now, you have been brought before the Court here today, Mr. Moulton, and I shall attempt to explain to you your legal rights under the Constitution and Statutes and laws of our State, and as I do so, if there is anything you do not understand, I want you to ask me, and when I am finished if you have any further questions, we likewise want you to ask them.
“A. Yes, sir.
“Q. Now, Mr. Moulton, this information that has been presented to me, of which you have received a copy, you will note upon examination of it that it has been signed by the State’s Attorney of this County and sworn to by a witness who stated under oath that the facts in the Information are true. Now, whenever a felony is involved, meaning an offense which carries with it a possible penitentiary sentence, the Constitution and the Statutes of our State provide that the Grand Jury of the county in which the offense was committed should return an indictment charging the Defendant with the offense and then the Defendant is brought before the Court to answer the indictment. Now, the law further provides that if the Defendant, or the one charged with the commission of a felony, is willing to waive the complaint being brought before the Grand Jury or the returning of an indictment and to answer to the indictment returned by the Grand Jury, that if the Defendant is willing to waive that, then he may be prosecuted on an Information signed only by the State’s Attorney and, on oath, by the witness. Now, do you understand what a Grand Jury is, Mr. Moulton?
“A. Yes, sir.
“Q. Do you understand what an indictment is, returned by a Grand Jury?
“A. Yes, sir.
“Q. An information, that we have here, is merely a written document charging you with a criminal offense. An indictment is a written document which the Grand Jury of the County makes up and hands to the Court, charging you with an offense. In case of an indictment, you are brought before the Court to answer to an indictment. In this case, you have been brought before the Court on an Information. Is that clear to you, what I have said so far?
“A. Yes, sir.
“Q. Now, are you willing to waive your right to have this brought before the Grand Jury so that you can be prosecuted under this Information ?
“A. Yes, Your Honor.
“Q. You are ?
“A. Yes, sir.
“Q. By ‘waive,’ I mean you are saying to me that you do not desire this to be brought before the Grand Jury and the Grand Jury considering returning an indictment into Court and your being brought into Court to answer the indictment, that you are willing to proceed on the Information here filed by the State’s Attorney.
“A. Yes, sir.
“Q. You understand that your right to have this presented to the Grand Jury is a right you have? Do you want to waive it?
“A. Yes, sir.
“Q. Now, Mr. Moulton, I note that you do not have a lawyer here representing you today. Under the law, of course, you have a right to have counsel of your choice to advise you and represent you before this Court. Do you understand that right, sir?
“A. Yes, sir.
“Q. Do you desire counsel or time before proceeding on this to secure the advice and representation of counsel?
“A. No, sir, I don’t believe that will be necessary.
“Q. You understand that if you want it the Court will give you the time ?
“A. Yes, sir.
“Q. And if you do not have the funds with which to employ a lawyer, that this Court will appoint a lawyer without charge to you to represent you in this cause?
“A. Yes, sir.
“Q. Understanding what the Court will do and your rights to counsel, is it my understanding that you still do not want counsel ? Is that correct ?
“A. That is correct.”

Thereafter, the court advised the defendant of the nature of the charge in great detail and of the consequences of a plea of guilty and elicited from defendant that he understood completely the nature of the charge and his right to trial by jury and the possible punishment and desired to enter a plea of guilty.

The court further explained the consequences of the plea of guilty and the possible punishment and asked him whether he had been well treated and if any promises had been offered as to what his punishment would be. Defendant stated that he had been well treated and that no promises were made with respect to his punishment. He also indicated that he was 23 years of age and had a year of college at Northern University through extension courses.

Following this discussion the court specifically said that the record showed that he had advised defendant of his right to be prosecuted under the indictment of a Grand Jury of the county and that defendant had advised the court that he was willing to waive his right to have the matter presented to the Grand Jury, and to answer to an indictment of the Grand Jury, and was willing to proceed to answer the information filed by the State’s Attorney. The court also found that the defendant knowingly and understandingly and voluntarily waived his right to have the matter presented to the Grand Jury and the court also further found that defendant knowingly and understandingly and voluntarily waived his right to be represented by counsel and his right to a trial by jury on the charges; that he has entered a plea of guilty to the offense of armed robbery as charged in the information; that defendant has persisted in entering such plea and the court thereafter accepted and entered the plea of record and found the defendant’s age to be 23 years.

The court then asked him whether he had any statements or evidence which he might wish to have presented by way of mitigation of the offense and that the State’s Attorney would be allowed to present evidence in mitigation or aggravation also. He asked defendant if he was prepared to proceed with such hearing relating to his family, moral character and previous criminal record at that time. Defendant announced that he was prepared to proceed that day. The State did not present any evidence in mitigation or aggravation but advised the court of the nature of the offense and that defendant had been charged with several violations of law and had served from three to five years in the Hlinois State Penitentiary for armed robbery. Defendant had been discharged from the penitentiary in August of 1965. His explanation for being in trouble was that he was destitute; that he felt he had rehabilitated when he was in prison but the Peoria Police Department didn’t feel he had paid for his crime and that he was harassed and that he felt he had to “come up with something.” The court advised him that there were opportunities for assistance which he could secure but defendant stated that he did not know about such available assistance. Defendant then asked the court to consider his family in making a disposition of his case. The court then sentenced defendant to a term of not less than four nor more than seven years.

Defendant on appeal in this court contends that the failure to appoint counsel for him in this cause constitutes reversible error on the basis of the precedents of cases such as Moore v. State of Michigan, 355 US 155, 78 S Ct 191; Gideon v. Wainwright, 312 US 355, 9 L Ed 2d 799, and Miranda v. State of Arizona, 16 L Ed 694, 86 S Ct 1602. It is also argued that the record does not disclose what went on in the jail during the period of seven days when defendant was in custody and whether defendant had been instructed as to his right to remain silent or that he had a right to counsel, retained or appointed, during that time. It is the contention of defendant that on the record and on the precedent of the Miranda case that there was no affirmative proof that at the time of arraignment defendant was so advised and that accordingly the judgment should be reversed.

Under the precedent of Miranda v. State of Arizona, supra, defendant should be advised that counsel would be made available to him. It is also clear that a person accused of a felony may waive the right to assistance of counsel if he so desires. Counsel is not required to be appointed for defendant if the defendant does not desire to have counsel appointed (People v. Harden, 78 Ill App2d 431, 222 NE2d 693). The basic question is whether defendant knowingly and understandingly waived his right to have counsel appointed for him. On the record before us, it is obvious that the court clearly and expressly advised defendant that he had a right to counsel and also that he had a right to have the Grand Jury proceed by way of indictment. The record shows that he understood the explanations which the court made to him as to the issues and knowingly and understandingly waived the right to indictment by the Grand Jury and also waived the right to have counsel appointed for him. Under Supreme Court Rule 26 considering the record of the proceedings, the requirements appear to have been fulfilled (People v. Doyle, 20 Ill2d 163, 169, 169 NE2d 250).

It appears that the defendant was 23 years of age, had one year of college, and that he had previously served a sentence for the offense of armed robbery. We were not confronted in this case with a man who is naive or ignorant or a juvenile. Following the language of the Supreme Court of this state in People v. Bush, 32 Ill2d 484, 207 NE2d 440, the record shows that the accused in this case was offered counsel and that he intelligently and understandingly rejected the offer.

An issue which is implicit in the appeal and argument presented in this case is whether a defendant is required to have counsel even though he does not express a desire to have counsel appointed for him, or rejects the offer of counsel. We find no precedent for such conclusion and do not read into the Miranda case any such requirement. The record shows affirmatively that defendant was fully advised of his right to counsel. It is apparent from the record that defendant expressed a desire not to have counsel and determined that he would plead guilty. The record shows that he freely and voluntarily waived his right to be represented by counsel and his right to be prosecuted on an indictment. On the basis of the record as presented, therefore, the order of the Circuit Court of Marshall County should be affirmed.

Affirmed.

STOUDER, P. J. and CORYN, J., concur.


author: PRESIDING JUSTICE STOUDER.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Susan Huber, Defendant-Appellant.
    Gen. No. 66-103.
    Third District.
    May 18, 1967.
    Robert J. Noe, of Rock Island, for appellant; Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Hexum and James Stovall, Defendants, James Stovall, Defendant-Appellant.
    Gen. No. 10,814.
    Fourth District.
    May 19, 1967.

      Richard C. McDonald, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Frederick P. Erickson, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

Defendant James Stovall and one Alfred Hexum were jointly indicted for a murder committed during the early morning robbery of Bolch’s Service Station. Motion for a severance was allowed. Hexum pleaded guilty, was sentenced to 20 to 50 years and thereafter testified for the State during the jury trial of Stovall. Upon the guilty verdict of the jury, Stovall was sentenced by the court to 30 to 60 years in the penitentiary. He appeals.

Defendant asserts he did not receive a fair trial because the prosecutor deliberately injected into the record evidence of other crimes in an effort to paint the defendant as a professional criminal; that one instruction of the State was erroneously given; that an instruction offered by the defense was erroneously refused, and that the evidence does not establish guilt beyond a reasonable doubt.

Before reviewing the incidents relied on by the defendant, we should point out that it was the theory of the State in the trial court and now in this court that the activities of Hexum, Wood, and Stovall during the two or three hours immediately preceding the murder are admissible to establish a common plan, design, purpose, or conspiracy to engage in criminal activities which snowballed into the robbery of the Bolch Service Station and the death of its attendant, Russell Crist. We should also point out that Wood dropped out of the enterprise before the Bolch robbery and Hexum and Stovall continued on alone in Stovall’s car. In his opening statement, the State’s Attorney stated that evidence would show that the three men entered Stovall’s car shortly after midnight and drove to Lovington, Illinois. On the way they discussed and “were going to rob or burglarize a building in Lovington. . . .” Objection sustained. Jury instructed to disregard. Arguments outside the presence of the jury — jury returned. Objection again sustained. Motion by defendant to withdraw a juror and declare a mistrial denied. In his opening statement, defendant stated that the defense would ■ show that Hexum and Stovall were driving together that night “just like a couple of boys riding around” and that “I believe the evidence will further show that there was no common design; that there was no conversation; no plan on the part of Mr. Stovall for any robbery of that service station, and of no murder of Russell Crist.”

Evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and unrelated to the one for which he is being tried is both incompetent and prejudicial. People v. Donaldson, 8 Ill2d 510, 134 NE2d 776; People v. Gregory, 22 Ill2d 601, 177 NE2d 120; People v. Oden, 20 Ill2d 470, 170 NE2d 582. In recognizing this rule in People v. Brown, 26 Ill2d 308, 315, 186 NE2d 321, our Supreme Court also takes note that there are well known exceptions to the rule and among them is “that such evidence may be admissible to prove design, motive, or knowledge when those matters are in issue or relevant.” In Brown, as here, the court was dealing with a murder climaxing an attempted robbery. Brown’s statement introduced into evidence contained an admission that he and his companions had participated in another burglary six days earlier. There, as here, the defendant took the position that there was no common design, scheme or conspiracy to commit robbery. The court there states on page 316: “we are of the opinion the disputed evidence was admissible under the exception which permits evidence of acts showing a common scheme or purpose.” We turn now to the evidence to which this rule applies.

A witness, Wood, testified for the State that he and Hexum had lived together in the same boarding house in Decatur for about a month; that he had gotten off work at midnight and returned directly to his boarding house and shortly thereafter Hexum and Stovall appeared. He identified Stovall in the courtroom. Question: “How long have you known Mr. Stovall?” Answer: “Since right after he got out of prison.” Objection. Objection sustained and jury instructed to disregard that remark. He then stated that he, Hexum and Stovall drove to Lovington, Illinois, in Stovall’s Chevrolet car. Asked whether there was any conversation about the Bolch Service Station, he said, “Yes, Hexum wanted to ‘hit it.’ ” Stovall said, “No, he hit it once before and it wasn’t worth the effort, couldn’t get enough money.” Wood then identified a 22-caliber bolt action J. C. Higgins rifle and stated that he first saw it on that evening in the back seat of Stovall’s car. On the way to Loving-ton, Wood loaded the rifle with ammunition supplied by Hexum. On their return to the boarding house, Hexum and Stovall talked about hitting another place and Stovall asked the witness to hide the rifle. Stovall and Hexum then left. Wood then went outside to get the rifle which had been placed in a Buick automobile which he was buying from Stovall. The rifle was gone. On the next day Wood was dancing with his girl friend, Donna Galligar, when Stovall arrived. He asked Stovall what was going on and whether anything had happened at the Bolch Service Station. Stovall said he didn’t know what he was talking about. They then discussed leaving Illinois and did depart about 2:30 that afternoon for Wichita, Kansas. In Wichita, Wood-stated he was going to come back to Decatur and turn himself in. Miss Galligar also wanted to return — Stovall said that he wanted to come back and contact a lawyer — that he wanted to talk to a lawyer first and then turn himself in. On the way back, the three of them came upon a string of cars and among them was a police car. When the driver of that car saw the Stovall car, he turned around and Wood, who was then driving, pulled off the highway thinking it was a country road, but it turned out to be a farmer’s lane and dead-ended at the farmer’s house. Wood testified that they were then attempting to elude the police officer’s automobile. When they came to the end of the lane, Stovall got out of the car, took two guns and ran and an hour or two later, Wood again saw Stovall in the jail in Jefferson City, Missouri. Between Wichita and Jefferson City, the witness noticed several coins wrapped up in white paper laying back in the glove compartment. He asked Stovall about the coins and Stovall said they were coins stolen at the Bolch Service Station. Wood also testified that in the morning before leaving Decatur he had taken the rifle out to an old abandoned car near Decatur and put it in the rear end of the car. He later told the police where it was and the rifle was then reclaimed. In rebuttal, Wood also testified that some six, eight or ten times during the trip to Wichita, Stovall told him and Miss Galligar that he and Hexum were riding around and they stopped at the Bolch Service Station to fix his lights as he was having trouble with them; that Hexum got out of the car and when Hexum came back, he told Stovall to get out of there because he (Hexum) just robbed the place and as they were leaving, Hexum told Stovall he shot that man.

Hexum testified for the State that after returning from Lovington they were proceeding to move the weapons from the car. Question: “What weapons are you referring to?” Answer: “The weapons we stole at. . . .” Interruption. Objection. The State’s Attorney: “Just a minute, I want to caution you.” The matter was dropped. The witness talked Stovall out of a revolver and witness was trying to dismantle it. Stovall came into the house and demanded the revolver from him and said he wanted to kill a named individual. Witness tried to talk him out of it. Instead they got into Stovall’s car and proceeded to look for this individual. The Higgins rifle was on the floorboard of Stovall’s car. As they journeyed around, Stovall mentioned that they should rob the gas station. Hexum tried to talk him out of it, but Stovall said “that he wanted to rob the gas station as he did before — it was easy. There was an old man there and he could get about $160.00.” They proceeded out toward the gas station. Witness continued to argue with him. The witness told him that we shouldn’t do it. “We should go home, forget about it, because if we did, we probably would get caught with this gun and get blamed for that burglary at Lovington.” Objection. The court: “Latter portion will be stricken.” They turned off to a side road about i/gth of a mile from the station and walked across the field to the gas station. Stovall told him to take the rifle and he had the rifle at that time. Stovall was armed with a 22-caliber revolver. The witness gave Stovall the rifle. As they entered the station, Stovall yelled at the attendant who was seated behind the counter and told him “he wanted the money — wanted all of it. He didn’t want any funny business.” The attendant gave him the money from his shirt pocket. Stovall then shot the attendant. They both went back to the automobile and Stovall then told the witness “if I told, he’d kill me, my girl friend and everybody else.” It developed on cross-examination that Hexum was a twice-convicted felon; that Stovall had divided the money with him; that he had made several statements to the Assistant State’s Attorney which were inconsistent with his testimony on the stand, and he denied that in the presence of defense witnesses Spencer, Mahon, and Fickes that he said or said in substance “I just been in a robbery of a filling station, I killed him. I pulled the trigger. I don’t want to live.” Hexum was then about 20 years old and Spencer, Fickes and Mahon testified for the defense that he did make such statements which they overheard in the county jail. Two of them were also convicted felons and all three were cotenants of Hexum in the county jail.

Stovall testified about the trip to Lovington and stated that Hexum wanted to rob the station across from the school, but “I didn’t want anything to do with it. I had done it before and I didn’t want no part in it.” He also testified that they stopped the car about %th of a mile from the filling station because he was having trouble with the lights and he drove off the road so that no one would see him as he wasn’t supposed to drive. He then testified that Hexum left him and took the rifle out of the car. Pretty soon he came back carrying the rifle saying, “he robbed and killed a guy. Bang, Bang, Bang.” He and Hexum had breakfast together the following morning. They went back to the boarding house and there Stovall told Wood he was going to leave. In Wichita, after he, Wood and Galligar arrived there, they talked with a Mr. Gump and told him what had happened and he advised them to turn around and go back and turn themselves in. Stovall denied he was in the filling station on the night of the killing — he denied he had fired a weapon at Russell Crist. Hexum gave him part of the proceeds of the robbery, but he didn’t know that it came from the Bolch Service Station. He denied he had told Wood they had driven into the service station to fix the lights; he denied that he heard any shots and stated on direct that he had been previously convicted of burglary in Macon County in 1960.

Donna Galligar, called in rebuttal by the State, confirmed the trip to Wichita, confirmed the statement that Stovall had told them he drove into the Bolch Station to fix his lights and that Hexum went into the service station and on his return said, “he had just shot the man.”

A careful scrutiny of this record does not support the conclusion that the State was engaged in an unwarranted deliberate attempt to inject improper testimony, improper argument or improper testimony of previous crime into the record within the condemnation of People v. Oden, 20 Ill2d 470, 170 NE2d 582 or People v. Dukes, 12 Ill2d 334, 146 NE2d 14. We think the evidence of their conduct in the earlier hours of the evening was admissible under the rule stated in Brown and that it was admissible to show a common purpose, design and plan to engage in criminal acts and, with weapons in their possession, could likely culminate in death or injury to whatsoever victim they may have selected. We perhaps also should point out that in Oden, Dukes and Donaldson, the jury fixed the penalty and imposed the death sentence. In those cases, the Supreme Court concluded that even though the evidence established the guilt of the defendant beyond a reasonable doubt yet where the jury imposes the penalty, the court should not hazard a guess as to the effect of improper conduct on the part of the State or improper evidence on the part of the State and its effect upon the punishment imposed. We do not deal with that situation here, as here the court imposed the penalty after a full hearing in mitigation and aggravation.

We are satisfied that the evidence in this record establishes the guilt of Stovall beyond a reasonable doubt. We cannot say from this record as to whether Hexum or Stovall was the trigger man. If Hexum is believed, it was Stovall. If Stovall is believed, it was Hexum. If Hexum is to be believed, Stovall participated in the events at the station and it makes no difference which of the two was actually the trigger man. The testimony of Hexum and Stovall as to the actual occurrence events is in direct conflict, a not unusual circumstance when the quality of the witnesses is considered. It was manifestly the obligation of the jury to choose between the two statements, aided by their appearance, conduct and candor in the courtroom. That choice has been made by them and by the trial court and it is not the province of this court to second-guess them unless the evidence fails to establish the guilt beyond a reasonable doubt. We would observe that Stovall’s flight from Decatur, his inconsistent statements to Wood and Galligar, his flight from the police officer in Missouri, and his meanderings on the evening in question are not the statements or the conduct of an innocent man and tend to corroborate the Hexum and Wood stories rather than that of the defendant.

Defendant complains that the court should not have given People’s Instruction No. 12 and that instruction reads as follows:

“A person is responsible for the conduct of another person when either before or during the commission of an offense and with the intent to promote or facilitate the commission of an offense, he solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense.”

This instruction is in effect a verbatim statement of the provisions of c 38, § 5-2 (c) defining responsibility and accountability. The defendant contends that this ought not have been given for the simple reason that if Stovall is to be believed, he had withdrawn from any further criminal actions when the car broke down and that he was entitled to an instruction on his theory of defense. The difficulty with the defendant’s position is that he does not bring himself within the provisions of § 5-2(3) which would entitle him to claim termination of effort and thus lack of responsibility or accountability. That provision states:

“Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.”

It is patent from the reading of this provision that nowhere in this evidence does Stovall bring himself within § 5-2(3). The instruction of the State was correct and the instruction tendered by the defendant wholly failed to follow the statute.

We therefore conclude that the judgment of the trial court is correct and that it should be and it is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


text:
    Edward P. Drolet, Petitioner-Appellee, v. John L. Stentz, Defendant-Appellant.
    Gen. No. 66-16.
    Third District.
    May 24, 1967.

      Thomas A. Nutting and Edward G. Vogt, of Kankakee, and Mayer Goldberg, of Chicago, for appellant.
    Edward P. Drolet, pro se, of Kankakee, appellee.
   SMITH, J.

The official canvass gave Stentz 18,192 votes, Drolet 17,989, and Stentz was certified as the duly elected State’s Attorney of Kankakee County by a margin of 203 votes. In the court recount, the trial court rejected the entire vote in the second precinct in Pembroke Township, 88 votes in another precinct and 13 votes in a third precinct. The summarized result was 17,942.064 votes for Drolet and 17,769.936 votes for Stentz. Drolet was adjudged to be the duly elected State’s Attorney and it is that judgment we now review.

In Pembroke No. 2, the official canvass gave Stentz 323 votes and Drolet 36 votes, all of which the trial court rejected with the finding that the many statutory violations constituted weighty evidence of fraud. No actual fraud is charged or established. The judges, with a single exception, were wholly inexperienced and untrained. The township had been divided into three precincts by the county board in September before the election. Due to the shortness of time and the fact that precinct No. 2 was a rural precinct, the precinct binders, as well as the voter registration, cards, leave much to be desired as to completeness and accuracy and contributed to the confusion in this precinct.

The judges took no voter applications for the first 2% hours. The election was then halted and an assistant State’s Attorney brought a new ballot box, sealed the old one, and instructed the judges to keep the ballots cast up to this time separate. There is a dispute as to whether this instruction meant only for the day or forever. In any event, the ballots in both boxes were dumped together, counted, and there is no hypothesis upon which it can be ascertained what votes were cast without applications. The range of the testimony is from 35-50 to 175 in number. During the day word was sent out to those who had voted without applications and some returned to the polls and filed applications. How many is a matter of dispute and the number is not ascertainable. Whether any voted the second time was not known. The judges relied on memory and were of the opinion that no one voted twice. The judges seldom, if ever during the day, compared the signature on the application with any signatures in the voters’ registration binder. Seven persons known to one of the judges to reside outside the precinct applied for, received, marked and cast ballots. Their names were in the precinct binder, but their applications were endorsed by one of the judges as residing out of the precinct. An unknown number of persons received, marked and cast ballots upon no further evidence than the presentation of a voter’s registration card issued by a former county clerk before the division of the precinct, or the location of the names on a 1963 binder precinct list compiled and prepared prior to the division into three precincts. Some thirteen persons obtained, marked, and cast ballots by making affidavits, one being on forms supplied as a part of the furnished election supplies and twelve on letter-sized paper without a supporting affidavit as required by the statute. Some thirty-six people voted whose applications bore names neither in the precinct binders nor on the printed 1964 voters’ list, nor were they in possession of a valid registration card, nor did they make affidavit. In this state of the record, it is impossible to segregate the valid from the invalid ballots with any degree of mathematical certainty.

The choice between disenfranchising an entire precinct and judicially exculpating the election official where no actual fraud is either alleged or established is not an easy one. It is one thing to nullify an entire election where the same matters may be considered in another election on another day. It is one thing to be able to segregate illegal ballots and adjust the results accordingly on a pro rata basis. It is quite another matter to be unable to segregate illegal ballots and adjust the results accordingly on a pro rata basis. It is quite another matter to be unable to segregate or mathematically compute the number of ballots illegally cast. Where fraud was present and the number of illegal ballots were unascertainable, the votes of an entire precinct were rejected. Emery v. Hennessy, 331 Ill 296, 162 NE 835; Lehman v. Hill, 414 Ill 173, 111 NE2d 120. The distinction between ascertainable and unascertainable alleged votes was pointed out in Thornton v. Gardner, 30 Ill2d 234, 195 NE2d 723. In Lehman, the Supreme Court uses this language:

“. . . That election is free and equal where all of the qualified electors in the precinct are carefully distinguished from the unqualified and are protected in the right to deposit their ballots in safety and unprejudiced by fraud. That election is not free and equal where the true electors are not separated from the false, where the ballot is not deposited in safety, or where it is supplanted by fraud. People v. Hoffman, 116 Ill 587, 5 NE 596, 8 NE 788, 56 Am Rep 793. . . .”

Morandi v. Heiman, 23 Ill2d 365, 178 NE2d 314, recognizes that provisions designed for the information and guidance of the election officials should be liberally-construed, particularly after the election has taken place, and that the policy of directory construction may be applied to avoid disenfranchisement of the innocent voter. It is, however, emphatically stated at page 373 of that opinion:

“. . . Such policy, however, has always been subject to exceptions where the statute specifically provides that a thing shall be done in the manner indicated, or where the irregularity has rendered doubtful the evidence from which the result is to be declared (People ex rel. Comerford v. Miller, 314 Ill 474, 478, 145 NE 685), or would tend strongly to overthrow the safe conduct of elections. People ex rel. Agnew v. Graham, 267 Ill 426, 441, 442, 108 NE 699. . . .”

In Morandi, the court rejected 739 uninitialled absentee ballots cast for one candidate and 403 uninitialled absentee ballots counted for another. No fraud was charged or proved. The results for a county office were reversed by such holding. An offer of proof was made suggesting that the folds in the absentee ballots readily identified each absentee ballot as absentee ballots have 8 folds and ballots in person have only 6. The Supreme Court rejected this proof and in so doing said:

. . To attempt to identify a validly cast ballot from an illegal one upon such fortuitous circumstance, would be a dangerous rule to permit to creep into the conduct of our elections. (Cf., Griffin v. Rausa, 2 Ill2d 421, 118 NE2d 249.) It would be a dangerous rule to establish that election judges may disregard the plain provisions of the statutes and thereby defeat the intention of the law to prevent actual fraud from being committed and to disarm the constituted authority of the efficient means provided by statute for detecting such fraud. Cf., Laird v. Williams, 281 Ill 233, 239, 118 NE 73; Harvey v. Sullivan, 406 Ill 472, 475, 477, 94 NE2d 424. . . .”

In Tuthill v. Rendelman, 387 Ill 321, 350, 56 NE 2d 375, 390, the court said:

“. . . It is clear that no discretion is reposed in the voter by the language of the Permanent Registration Act as to the necessity for his registration in the manner required by the Act. It was the evident intention of the General Assembly to put teeth into the Permanent Registration Act and to prevent frauds arising out of illegal or indifferent registration. . . .”

It is thus clear that not only the Legislature but the Supreme Court has indicated the avowed purpose of the Voter Registration Act. The provision of the Election Code, Ill Rev Stats c 46, is a legislative expression of how and in what manner an election should be conducted. On the record before us we deal not with a single failure to comply with the rules governing elections, but with multiple violations. Inadvertent noncompliance with some legislative directions for the conduct of elections need not vitiate the vote in a given precinct. Where, as here, the violations are so numerous and so gross that, an accurate calculation of the valid and invalid votes is impossible, we reach the end of a dead-end street. We cannot go further. We cannot determine the number of legal votes cast for either party. We cannot apportion. The gross disregard for numerous simple and plain statutory requirements should not, under these circumstances, be judicially condoned. We therefore conclude that the election in that precinct is abortive. It is better that the voters in one precinct in one election be disenfranchised than that a judicial key to fraud and chicanery be molded or that the temptation to ignore the legislative directives for the assurance of a free and equal election be encouraged. The trial court correctly excluded the votes in Pembroke No. 2, and surcharged the final for each party accordingly. When this is done, Stentz has 17,896 votes left and Drolet has 17,953. Drolet’s majority is 84 at this point.

It is urged that there should be an apportionment in Pembroke No. 2 according to the legal votes cast as held in Neff v. George, 364 Ill 306, 4 NE2d 388, and Smoda v. Gallagher, 412 Ill 271, 106 NE2d 181. This same principle was recognized in Thornton v. Gardner, 30 Ill2d 234, 196 NE2d 723. However, in Thornton the number of illegal votes was readily ascertained. In Lehman v. Hill, 414 Ill 173, 111 NE2d 120, the Supreme Court recognized the apportionment rule of Neff and Smoda but refused to apportion for the reason that “here the particular votes claimed to be illegal could not be segregated, proved and exactly computed.” Here a like situation exists. It is impossible to apportion when the number of votes to be apportioned is impossible of accurate computation and determination. In our judgment the apportionment rule does not apply where the number of legal and illegal votes rest upon pure guess, conjecture and surmise.

In the second precinct of the first ward in Kankakee, the trial court rejected 88 ballots and apportioned them on the basis of 85.9% charged to Stentz and 14.1% charged to Drolet. The defendant Stentz does not question or argue on this appeal the apportioned deduction of 10 votes on the stated percentage. Accordingly, if any objections were available, they are now waived and we thus deduct 8.592 votes from Stentz, leaving him with 17,860.41 and deduct 1.41 votes from Drolet leaving him with 17,951.59 votes. At this point, the summarized result leaves Drolet with 91.18 votes in the lead. We need go no further to affirm the result in the trial court. The trial court deducted a total of 422.064 from Stentz and as noted herein 323 plus 8.59 or 331.59 were properly deducted. If we were to restore to Stentz without deciding the points raised as to them, the remaining 90.474 votes deducted by the trial court, Drolet would still win. However, in restoring to Stentz the remaining ballots would likewise require a like action for Drolet and the restoration to him of 9.795 votes. Thus, the final result would be Stentz 17,950.884 and Drolet 17,961.385 or a majority for Drolet of 10.501. In addition, we should observe that of the 90.474 votes we have tentatively restored to Stentz without deciding the objections, four in the second precinct of the seventh ward were rejected because of distinguishing marks, the action of the trial court as to them is not questioned and therefore they should not be counted for Stentz. So treated, Drolet’s majority is 14.501. Other points raised in this appeal relate to the applications for ballots, improper affidavits for ballots, applications to which the judges’ initials or names were signed by others, and a problem of charged improper assistance to other voters. It would unduly extend this opinion to discuss in detail all of these points and, as already noted, it would not affect the result. Thus, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

CORYN, P. J. and ALLOY, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Charles E. Larson, Sheriff of Lake County, for the Use of Derold J. Montgomery and Mrs. Derold J. Montgomery, Plaintiffs-Appellees, v. Mobile Home Finance Company, a Corporation, and Hartford Accident and Indemnity Company, a Corporation, Defendants-Appellants.
    Gen. No. 66-95M.
    Second District.
    May 24, 1967.

      William S. Blatt, of Chicago, for appellants.
    Hall, Meyer, Fisher, Van Deusen, Holmberg & Snook, and Ronald E. Griesheimer, all of Waukegan, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Lake County wherein the court entered a judgment in favor of plaintiff and against defendant in the amount of $5,078.90, plus costs of suit.

An initial replevin suit was brought by defendant, Mobile Home Finance Company, against the plaintiffs, Derold J. Montgomery and his wife, on June 9, 1965, with the filing of a replevin bond and the issuing out of a writ of replevin. The replevin bond was executed by Mobile Home Finance Company as principal and the Hartford Accident and Indemnity Company as surety. The action was for the recovery of a 1963 mobile home. On trial of the replevin action on October 15, 1965, the jury returned a verdict against the plaintiffs and on January 5, 1966, after post-trial motions and after plaintiffs filed a remittitur, judgment was entered against Mobile Home Finance Company in the amount of $1,500, and return of the property was ordered. The trailer was returned to the Montgomerys on January 6,1966, and the damage award was paid.

On January 10, 1966, the Montgomerys instituted this action predicated upon the bond filed in the replevin action, alleging a breach of the conditions of the bond, and alleging damages because of the loss of use of the trailer and property of the plaintiffs, the abuse and deterioration of the replevied property, the anguish and mental suffering of Mrs. Montgomery and attorney’s fees. The case was tried without a jury on June 6,1966, and a judgment order entered awarding damages to plaintiffs in the total amount of $5,078.90; $2,469.90 was for the loss of use of and damage and depreciation to the mobile home and personal property; $1,475.00 was awarded as attorney’s fees, and $1,134 to Mrs. Montgomery for her pain and suffering, hospital bills and costs of babysitters incurred by her and her husband.

The bond herein sued upon was given pursuant to c 119, § 10, Ill Rev Stats (1965), which provides as follows:

“Before the execution of any writ of replevin the plaintiff or someone else on his behalf shall give to the sheriff or other officer a bond with sufficient security in double the value of the property about to be replevied, conditioned that he will prosecute such suit to effect and without delay and make return of the property to the defendant if return of the property shall be awarded or will deliver the same to the intervening petitioner should it be found that the property belongs to him, and save and keep harmless such sheriff or other officer as the case may be, in replevying such property and further conditioned for the payment of all costs and damages occasioned by wrongfully suing out said writ of replevin or alias or pluries writ or writs of replevin, and if the sureties on such bond at any time before trial shall become insolvent, a rule nisi shall be entered requiring good and sufficient replevin bond to be filed, and if the same shall not be so filed within the time fixed by the court, the suit shall be dismissed.”

The obligation of the bond itself was as follows:

“We jointly and severally bind ourselves to Charles Larson, Sheriff of Lake County, Illinois, that the plaintiff will prosecute his suit with effect and without delay, and return the property to defendant if return be awarded, or deliver the property to an intervening petitioner if it is found that the property belongs to him and keep harmless the sheriff, constable or other officer in replevying the property, and pay all costs and damages occasioned by wrongfully suing out the writ of replevin or alias or pluries writs. The obligation of this bond is limited to $10,000.00.”

Replevin is one of the most ancient actions known to the law, taking its name from the object of its process. It originated in the common law as a remedy against the wrongful exercise of the right of distress for rent. Replevin, by the weight of authority, was extended to be the proper remedy for any unlawful taking. It has been held that it is an extraordinary remedy, but in this state it is no longer a common-law action and its extent and scope are regulated by statute. General Motors Acceptance Corp. v. Vaughn, 358 Ill 541, 547, 193 NE 483.

The issue before this court is what are the proper elements of damage in an action of this nature. It is the contention of the defendants that under Illinois law only certain types of damages can be recovered in a suit on a replevin bond, that the action is based on a contract and that the damages must be limited to compensation for actual loss related to the property covered by the writ of replevin. Defendant asserts that the court awarded excessive damages for loss of use because they were not reasonably compensatory and that the trial court erred in awarding damages for personal property not covered by the writ of replevin. Plaintiff’s theory is that he is allowed to recover all costs and damages occasioned by the suing out of the writ of replevin and urges that the trial court committed no error in its assessing damages for the various elements of claimed loss.

While we have some difficulty in determining exactly how the lower court arrived at the damages awarded, it appears that the damages awarded were for the loss of use and damage and depreciation, not only to the mobile home, but to certain personal property located therein. Further damages were awarded for attorney’s fees and costs incurred in defending the original replevin suit and, finally, a sum was awarded for the nervous breakdown suffered by Mrs. Montgomery as the alleged result of the seizure of the mobile home.

Plaintiffs may recover damages for injury to the replevied property, its depreciation in value while unlawfully detained from them, damages for loss of use during the time of such detention, and for the amount of attorney’s fees, costs and expenses necessarily expended or incurred in defending their right to the property and securing the return thereof. Dalby v. Campbell, 26 Ill App 502, 504. It should be noted that plaintiff is not entitled to recover attorney’s fees incurred in the prosecution of a suit on the surety bond. Washburne v. Burke, 84 Ill App 587, 588, 589. Nor are plaintiffs entitled to recover vindictive or punitive damages in a suit on the replevin bond, as it is an action ex contractu and not in tort. Dalby v. Campbell, supra. The bonding company’s liability is of a contractual nature and, thus, it may differ from the nature of the principal’s liability. Westbrooks v. Finley, 11 Ill App2d 428, 432, 138 NE2d 77. The undertaking of the surety is to be strictly construed. Danford v. Watkins, 337 Ill 222, 231, 168 NE 912. It was, therefore, error to award any damages for the personal property which was seized but was not described in the writ. Nor may the plaintiffs recover for pain and suffering in an action on the bond. A claim for such damages sounds in tort and presents different issues than does a suit on the surety bond. In Kapischki v. Koch, 180 Ill 44, 46, 54 NE 179, the court stated:

“The unauthorized seizure and retention of the goods vested appellant with the right to institute an action in trespass, in which he could recover compensatory damages, and, if the evidence disclosed a proper case, vindictive damages also, or an action on the replevin bond, in which he could recover compensatory damages, but not exemplary or vindictive damages. Each of these remedies proceeds upon the same cause of action, and the remedies were consistent and concurrent. While the different remedies are available to the appellant, the cause of action was the same, and was an entirety, and could not be divided into separate and distinct claims, and both remedies pursued. The appellant was required to elect his remedy, and could not split his right to recover damages and maintain two actions against the appellees upon the same cause of action.”

The obligation of the surety on the bond is, by the terms of the statute itself, directly related to the value of the property and the liability of the surety is limited to damages occurring to the property and resulting from the loss of its use. The trial court erred in awarding damages to the plaintiffs resulting from Mrs. Montgomery’s nervous breakdown.

Defendants finally contend that the damages awarded for the loss of use are excessive as they are not compensatory. In this case we are of the opinion that the damages for loss of use should be limited to the cost of finding substitute living quarters during the period from the wrongful seizure and detention of the trailer until its return. From the record below, it appears that the plaintiffs were awarded $2,469.90 for “incurred damages through the loss, temporary and permanent, of the personal property, and incurred damages by the abuse, destruction and extraordinary depreciation to which their house trailer was subjected” from the period of October 25,1965, to May 25,1966. The record reveals the trailer was seized on October 25, 1965, and returned on January 5, 1966. Plaintiffs are clearly entitled to damages for the depreciation of the house trailer suffered during that period and for loss of use of the trailer during that period. They are not entitled to damages for loss of use after possession of the trailer was returned to them nor are they in this action entitled to damages for the loss resulting from the seizure of personal property which was not specifically covered by the writ. Sacks v. American Bonding Co., 340 Ill App 564, 580, 581, 92 NE2d 510.

For the reasons above stated, this cause is reversed and remanded for hearings consistent with this opinion.

Reversed and remanded.

DAVIS, P. J. and BURT, J., concur.


text:
    The City of Highland Park, a Municipal Corporation, Plaintiff-Appellee, v. James A. Curtis, Defendant-Appellant.
    Gen. No. 66-103M.
    Second District.
    May 24, 1967.

      Arthur C. Holt, of Waukegan, for appellant.
    Thomas H. Compere, Corporation Counsel, of Highland Park, and Berle L. Schwartz, Assistant Corporation Counsel, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court entered upon the verdict returned by the jury finding the defendant guilty of driving while under the influence of intoxicating liquor, contrary to an ordinance of the City of Highland Park, and assessing a fine against him in the sum of $200.

The defendant-appellant pleaded not guilty and demanded a jury trial. The Magistrate in charging the jury, refused the defendant’s instruction to the effect that he was presumed to be innocent and that the City must prove his guilt beyond a reasonable doubt. And, over the defendant’s objection, the Magistrate instructed the jury that the City must prove the violation of the ordinance in question by the clear preponderance of the evidence; and that if the jury’s verdict was for the City, then it should state the amount of the fine, which, under the ordinance, could be no less than $1, nor more than $500.

The defendant filed a post-trial motion, claiming that the Magistrate erred in refusing to give the defendant’s instruction relative to the presumption of innocence and requiring proof of defendant’s guilt beyond a reasonable doubt. He also claimed error in the court’s giving of plaintiff’s instruction that the City must prove the ordinance violation by a preponderance of the evidence, and in submitting to the jury a form of verdict requiring it, in event of a finding of guilty, to assess the fine against the defendant. This motion was denied.

The defendant contends that since January 1, 1964— the effective date of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, pars 100-1 through 125-4)— all prosecutions under penal ordinances of a political subdivision of the State, which includes a municipality thereof, are under the Code of Criminal Procedure and in accordance with the rights of the defendant as set forth under the Criminal Code (Ill Rev Stats 1965, c 38, pars 1-1 through 34-4), which became effective January 1, 1962. He further urges that under said Codes, the City is required to prove the defendant guilty beyond a reasonable doubt of an ordinance violation, and in event such burden is sustained by the City, that then, only the court may determine the penalty or sentence; and that, consequently, the court erred in instructing the jury.

The City urges that:

(a) the Code of Criminal Procedure of 1963 does not apply to prosecutions brought for the violation of ordinances of municipalities;

(b) prosecutions brought in the name of municipalities for the purpose of imposing a fine are nevertheless tried and reviewed as civil proceedings ;

(c) in a prosecution for the violation of a municipal ordinance and the imposition of a fine, the required burden of proof is a clear preponderance of the evidence, and not proof beyond a reasonable doubt; and

(d) when a municipality seeks to impose a penalty for the violation of a municipal ordinance and the case is tried before a jury, it is the function of the jury to determine the amount of the fine to be imposed within the limits prescribed by the ordinance.

The Code of Criminal Procedure specifies that its provisions shall govern all criminal proceedings in the courts, except where a different procedure is specifically provided by law. (Ill Rev Stats 1965, c 38, par 100-2.) Under section 102-8 of the Code, “charge” means a written statement presented to a court accusing a person of the commission of an offense and includes an indictment, information and complaint (Ill Rev Stats 1965, c 38, par 102-8); and an “offense” is a violation of any penal statute of the State, or any penal ordinance of its political subdivisions. (Ill Rev Stats 1965, c 38, par 102-15.)

The Criminal Code provides that every person is presumed innocent until proven guilty beyond a reasonable doubt (Ill Rev Stats 1965, c 38, par 3-1); and the Code of Criminal Procedure further provides that the jury shall return a general verdict as to each offense charged (Ill Rev Stats 1965, c 38, par 115-4(j)); and the Criminal Code provides that the court shall determine and impose the penalty with reference to the offense charged (Ill Rev Stats 1965, c 38, par 1-7 (b)).

The foregoing Code provisions give rise to the questions of whether the enforcement of an ordinance by a municipality is a criminal proceeding; whether a municipality is a political subdivision of the State; and whether there are any other specific statutory provisions which indicate a different procedure in connection with the enforcement of municipal ordinances.

Since 1864, our courts have consistently held that a prosecution for the violation of a municipal ordinance to recover a fine or penalty from a defendant, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding, and not as a criminal prosecution. At common law, a penalty given by ordinance or statute might be recovered in an action of debt or assumpsit, in any court of general jurisdiction, but such penalty could not be recovered in a criminal proceeding. City of Decatur v. Chasteen, 19 Ill2d 204, 216, 166 NE2d 29 (1960); Village of Maywood v. Houston, 10 Ill2d 117, 119, 139 NE2d 233 (1956); Town of Jacksonville v. Block, 36 Ill 507, 509, 510 (1865); Ewbanks v. Town of Ashley, 36 Ill 177, 180 (1864). In such cases, the proceeding being civil in form, the right of appeal was conferred on appellee as well as appellant. Village of Maywood v. Houston, supra, 119; Baldwin v. City of Chicago, 68 Ill 418, 419, 420 (1873). “By thus recognizing a municipality’s right to appeal an adverse decision in a case to collect an ordinance violation penalty, the courts have by implication rejected a claim of double jeopardy were the case to be remanded for a new trial.” Village of Maywood v. Houston, supra, 120.

While the foregoing decisions were prior to the effective dates of the Criminal Code and Code of Criminal Procedure, a reviewing court has, since said dates, reached similar conclusions. (Village of Park Forest v. Bragg, 74 Ill App2d 87, 89-93, incl., 220 NE2d 61 (1966).) In discussing the problems involved under contentions such as those advanced by the defendant, the court stated at pages 89 and 90:

“The legal problem posed by this appeal is a product of the difficulty the Elinois courts have experienced in classifying ordinance violation prosecutions either as wholly criminal proceedings, as wholly civil proceedings, or as ‘quasi-criminal’ proceedings. If an ordinance violation prosecution can properly be classified as a criminal proceeding, and subject to all the rules which apply thereto, several conclusions are at once apparent. First of all, the municipality would not have the right to appeal an adverse decision, under Supreme Court Rule 27(4), (Ill Rev Stats, ch 110, section 101.27 (4) (1965)); in fact, we would be without jurisdiction to hear this appeal. Secondly, it is established that in a criminal case, after a finding of guilty, the trial judge cannot suspend the sentence for an indefinite period except under probation proceedings as provided by statute. People ex rel. Smith v. Allen, 155 Ill 61, 39 NE 568; People ex rel. Boenert v. Barrett, 202 Ill 287, 67 NE 23. The United States Supreme Court announced a similar rule for the federal courts in Ex Parte United States, Petitioner, 242 US 27. Nor can the trial judge impose a penalty which differs from the mandatory penalty established by the Legislature, People ex rel. Ward v. Salter, 28 Ill2d 612, 192 NE 2d 882. Finally, if ordinance violation prosecutions are criminal proceedings, the trial judge can make use of probationary remedies, and therefore the power to suspend penalties indefinitely would be somewhat redundant.”

Because of these decisions and for reasons hereinafter stated, we do not believe that the enforcement of an ordinance by a municipality is a criminal proceeding.

In 1963, the same legislature which enacted the Code of Criminal Procedure, amended sections 1-2-1 and 1-2-9 of the Cities and Villages Act (Ill Rev Stats 1965, c 24, pars 1-2-1 and 1-2-9); and in 1961, the same legislature which enacted the Criminal Code, also adopted the Municipal Code of 1961. Section 11-1-1 thereof authorized the corporate authorities of each municipality to pass and enforce all necessary police ordinances. (Ill Rev Stats 1965, c 24, par 11-1-1.) Section 1-2-1, as amended, empowers a municipality to pass all ordinances necessary to carry into effect the powers granted to it, with such fines or penalties as may be deemed proper. It further provides that no fine or penalty, except civil penalties provided for failure to make returns or pay taxes levied by the municipality, shall exceed $500 and no imprisonment for failure to pay any fine, penalty or costs shall exceed 6 months for any one offense.

Section 1-2-9, as amended, provides that actions for the enforcement of municipal ordinances may be initiated by summons or warrant and outlines the procedure attendant to bringing the alleged violator to trial. It further provides that any person upon whom a fine or penalty is imposed, upon order of the court before whom the conviction is had may be committed to jail until the fine, penalty and costs are paid; and that the municipality may provide “by ordinance that every committed person shall be required to work at whatever labor his strength permits, within and without the place of incarceration, not to exceed 10 hours each working day. The committed person shall be allowed, exclusive of his board, a credit of $5 for each day’s work on account of the fine, penalty, and costs.” This latter provision has long been a part of the Cities and Villages Act, and the amendment merely increased the amount to be allowed as a credit for each day’s work on account of a fine, penalty and costs.

The predecessor statute to section 1-2-9 was enacted on April 12, 1879. The imprisonment provided for in this Act was designed by the legislature to be in satisfaction of the fine imposed upon a defendant for the violation of an ordinance. In essence, it was analogous to the satisfaction by imprisonment for debt at the common law. To place a limit upon the time of such imprisonment, the Act fixed a time beyond which a party could not be imprisoned. A contemporaneous decision held that the whole extent of the punishment was the assessment of the fine and costs; that the imprisonment would cease upon the payment of the fine and costs; and that the imprisonment was incidental to the power to fine, and was not regarded in the light of punishment. Town of Sheffield v. O’Day, 7 Ill App 339, 342-344, incl. (1880).

When we consider the dichotomy of the contemporaneous legislative enactments under the Criminal Code and Code of Criminal Procedure and under the Cities and Villages Act, we cannot accept the view that said Codes supersede the provisions of the Cities and Villages Act in those cases where the ordinance provisions of the municipality regulate specific conduct which is subject also to similar treatment by said Codes, or other statutory enactment.

The defendant does not contend that the ordinance is invalid in that it is in conflict with said Codes or of section 47 of the Motor Vehicles Act (Ill Rev Stats 1965, c 951/2, par 144). Section 47 of said Act declares it to be unlawful for any person under the influence of intoxicating liquor to drive any vehicle within the State and the ordinance makes the same provision, but limits its application to the City of Highland Park. Every person convicted of violating the enactment is subject to imprisonment for not less than 2 days nor more than 1 year, or by fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment, while any person violating the ordinance is subject only to a fine of not less than $1, nor more than $500.

In Village of Winnetka v. Sinnett, 272 Ill App 143 (1933), the Village ordinance and section 41 of the Motor Vehicle Act each provided that it shall be unlawful for a person while in an intoxicated condition to operate a vehicle upon the streets of the Village. The court there determined that the enactment of section 41 of the Motor Vehicle Act did not repeal by implication the ordinance of the Village. At page 147, the court quoted from City of Decatur v. Schlick, 269 Ill 181, 184, 109 NE 737 (1915) and stated:

“Appellants concede in their brief that a municipal ordinance is not invalid by reason of prohibiting and penalizing acts already prohibited by statute.
“In the more recent case of City of Litchfield v. Thorworth, 337 Ill 469, the court cited as authority the cases of City of Chicago v. Union Ice Cream Mfg. Co., supra, and City of Decatur v. Schlick, supra, and said in sustaining the ordinance in question: ‘The ordinance only undertakes to prohibit and penalize acts already prohibited by statute. A municipal ordinance passed under proper authority will not be declared invalid because it prohibits acts already prohibited by statute.’ ”

It is well settled law that municipalities may exercise police power concurrently with the State, and that police regulations may differ from those of the State on the same subject, if not inconsistent therewith (10ILP, § 1105, page 22).

Thus, we believe that sections 1-2-1 and 1-2-9 of the Cities and Villages Act — which were amended by the same legislature that enacted the Code of Criminal Procedure — are in pari materia with sections 102-8 and 102-15 of the Code of Criminal Procedure and section 47 of the Motor Vehicle Act; and that, since these statutory provisions are not without ambiguity, they should be construed together to determine the intent of the legislature. The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes. People ex rel. Krapf v. Hayes, 13 Ill2d 143, 147, 148 NE2d 428 (1958). We must presume that the several enactments relative to the offense of drunken driving, relate to one subject and are governed by one policy and spirit; and that the legislature intended the several statutes to be consistent and harmonious. Scofield v. Board of Education, 411 Ill 11, 20, 103 NE2d 640 (1952); Ashton v. County of Cook, 384 Ill 287, 298, 51 NE 2d 161 (1943); People v. Brausam, Gen. No. 66-149M, Second District, filed June 14, 1967.

Of necessity, municipalities, which are ever-increasing in size and number, must make and enforce regulations pertaining to the use of their streets by vehicles in order to prevent accidents and promote the health and general welfare. This is particularly true in the light of the growth of our population, the increase in the number of automobiles upon our streets and highways and the improvement thereof. Such regulations by the municipality are further indicated by the present trend of automobile manufacturers to build vehicles with greater horsepower, which travel faster, and by the simultaneous rise in the consumption of alcoholic liquors.

To protect the lives of our people and the safety of our property in the light of these conditions, our legislature saw fit to authorize both the State and municipalities to impose sanctions against any person who drives an automobile while under the influence of intoxicating liquors. While we do not regard this action as a criminal proceeding, even if it were, we believe that it would be exqised from the provisions of the Code by section 100-2 thereof; and that the legislature has provided another and different procedure than that set forth in the Criminal Code for the enforcement of municipal ordinances. Likewise, with reference to the enforcement of municipal ordinances, we do not believe that a city is a political subdivision of the State. Also see: Berwind, Inc. v. Chicago Park Dist., 393 Ill 317, 335, 65 NE2d 785 (1946); West Chicago Park Com’rs v. Chicago, 152 Ill 392, 403, 38 NE 697 (1894).

A prosecution for the violation of a municipal ordinance and to recover a fine or penalty therefor, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding. Consequently, the burden of proof required by the City to establish such violation is the clear preponderance of the evidence. City of Chicago v. Williams, 45 Ill App2d 327, 329, 195 NE2d 425 (1963); City of Chicago v. Carney, 34 Ill App2d 303, 305, 306, 180 NE2d 729 (1962).

The defendant’s contention that only the court may determine the penalty for the violation of the ordinance is founded on the false assumption that the action against the defendant for the violation of the ordinance is a criminal proceeding. In Village of New Athens v. Casperson, 202 Ill App 555 (1916), the court stated at pages 556 and 557:

“Appellant complains in this court that the trial court erred in its instructions as to the form of verdict and that it was for the jury and not the court to fix the penalty. This was clearly a civil action governed by the rules of civil procedure, and therefore the jury alone could determine the amount of the penalty. In Hoyer v. Town of Mascoutah, 59 Ill 137, the court stated in its opinion: Tt has been repeatedly held by this court that a proceeding to collect a penalty for the violation of a town ordinance is a civil suit. Such a penalty cannot be recovered in any criminal proceeding. Town of Jacksonville v. Block, 36 Ill 507; Graubner v. City of Jacksonville, 50 Ill 87. The fact that the offense charged was assault and battery does not change the character of the proceedings. It is still a civil suit. The town only acquires jurisdiction because the offense is prohibited by ordinance.’ See also, City of Chicago v. Knobel, 232 Ill 112; McLain v. City of Chicago, 127 Ill App 489. In City of Chicago v. Kenney, 35 Ill App 57, it was held: ‘The proceeding must be in the corporate name of the city, and is a civil action in form, debt, and governed in all respects by the rules of procedure in civil cases.’ (Citations.)
“As this must be regarded as a civil action, it follows that the court had no authority, in the absence of a statute conferring power to do so, to fix the amount due the village as penalty or debt, and that such amount should have been determined by the jury and included in their verdict.”

We recognize that the concurrent existence of a municipal ordinance and a legislative enactment, each of which prescribes a penalty upon any person who drives a vehicle while intoxicated, creates problems and that the decisions in this area do not always have a logical consistency. In fact, this circumstance may be described as an anomaly in our law. However, the dichotomy in this area of the law has its roots in the common law and experience. And, the following remarks by Mr. Justice Holmes in his lectures on “The Common Law” have a marked pertinency with reference to the case at bar: “The life of the law has not been logic, it has been experience. The felt necessities of the time, the prevalent moral and political theories; intentions of public policy avowed or unconscious, even the prejudices which judges share with their fellowmen, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

These problems and their solution illustrate the marvel-out flexibility of our legal system, which, as no other, can adapt the wisdom and experience of the past to the complex problems of today. Under these circumstances, we cannot but believe that if the legislature had intended to modify these time-honored precedents, it would have expressly repealed the pertinent sections of the Cities and Villages Act rather than leave the question of its intention to the infirmities of construction so often inherent in the doctrine of repeal by implication.

For the reasons set forth herein, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.