text:
    Mary Ethel Brown, Plaintiff-Appellant, v. The South Shore National Bank of Chicago, Defendant-Appellee.
    (No. 54833;
    First District
    August 20, 1971.
    Peter S. Sarelas, of Chicago, for appellant.
    Mitchell J. Overgaard and Theodore E. Zahler, both of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

This action was brought by the payee of a check against the bank upon which it was drawn for damages alleged to have arisen from defendant bank’s non-payment of the check. On the motion of defendant the court struck a portion of the complaint. Subsequently, after further proceedings, summary judgment was entered for defendant.

Plaintiff’s complaint alleged the following: Plaintiff was the holder and owner of a check in the amount of $130 drawn to her order on defendant and signed “John W. or Christine S. Porter by Peter S. Sarelas.” Plaintiff endorsed the check and deposited it with her bank, The First National Bank of Chicago, which, in turn presented it to defendant for payment. Defendant paid the check on February 28,1967, but thereafter, on March 2 returned the check to plaintiff’s bank, representing that the check was “Paid in Error” and stamping on the face of the check “Not” and “Paid in Error.” A statement attached to the check stated that the signature was not on file. Plaintiff’s account in her bank, as a consequence of defendant’s acts, was debited in the amount of the check. Defendant had in its possession since February 10, 1966 a general power of attorney executed by John W. Porter naming Peter S. Sarelas as his attorney. The complaint goes on to allege that the statements of defendant were dehberate, false, fraudulent, libelous and defamatory and published for the purpose of defaming and libehng her valid title and ownership of the check and her name, credit and professional reputation and the statements were made with intent to suggest that plaintiff was issuing a forged check. As a consequence of these acts the plaintiff was wrongfuHy deprived of the proceeds of the check and interest thereon, required to expend money in the prosecution of her claim, injured in her good name and credit, and suffered from loss of sleep and anguish. Refief in the form of compensatory and exemplary damages was demanded in the amount of $50,000.

Defendant filed a motion asking the court to strike the complaint. That motion asserted several grounds for dismissal including the failure of the complaint to state a cause of action. The court entered an order striking portions of the complaint and concluding that plaintiff had stated a good cause of action for $130 plus interest at 5% thereon from March 2, 1967.

Subsequently, defendant filed a motion for summary judgment. A supporting affidavit executed by defendant’s vice-president and cashier stated, inter alia, that the check presented to defendant was not accepted in accord with Ill. Rev. Stat. 1967, ch. 26, par. 3 — 409 (l), that the check on its face stated that it was not accepted and that notice of dishonor was given to the First National Bank of Chicago, the collecting bank, which in turn gave notice to plaintiff.

Plaintiff responded to the motion for summary judgment with a verified pleading entitled “Objections, Reply and Counter-affidavits of Plaintiff to Defendant’s Motion for Summary Judgment to Dismiss Complaint at Law.” This document states the following: The check was paid on Februaiy 28, 1967, and this fact is shown on the face of the check. The records of tire bank also indicate that the check was paid, posted and charged to the account of John Porter on that date. Defendant’s statement of account dated March 1, 1967, shows that after payment of plaintiff’s check there was a balance of $4,501.42 remaining in the account. The defendant had in its possession, in addition to the power of attorney executed by John W. Porter, a power of attorney executed by Christine S. Porter, joint tenant of the account, designating Peter S. Sarelas as her attorney-in-fact. The defendant paid earher checks issued to plaintiff since April 9, 1966 with the exception of the check dated February 2, 1967.

On October 16, 1969, an order granting summary judgment for defendant was entered, “the court being of the opinion that the plaintiff being a mere payee of a check not accepted’ by the defendant bank, has no rights against it and that no factual issue exists.”

On appeal plaintiff argues that summary judgment deprived her of her constitutional right to a jury trial of fact questions. Plaintiff argues that summary judgment should not have been entered for the reason that substantial factual questions were raised by the pleadings. We do not agree.

It is clear that in the absence of the certification or acceptance of a check a payee bank has no obligations to a holder to pay a check drawn on it. Ill. Rev. Stat. 1965, ch. 26, par. 3 — 409(1). It is plaintiff’s theory, however, that under the provisions of Chapter 26, Section 4— 213(1) the actions of the bank constituted an acceptance of the check. That section states:

“(1) An item is finally paid by a payor bank when the bank has done any of the following, whichever happens first:
(a) paid the item in cash; or
(b) settled for the item without reserving a right to revoke the settlement and without having such right under statute, clearing house rule or agreement; or
(c) completed the process of posting the item to the indicated account of the drawer, maker or other person to be charged therewith; or
(d) made a provisional settlement for the item and failed to revoke the settlement in the time and manner permitted by statute, clearing house rule or agreement.”

Plaintiff’s complaint incorrectly asserts that the check was finally paid and posted by defendant. She contends the stamping of the check “Not” and “Paid in Error” and an entry on the statement of account of John W. Porter support her position. Section 4—213(c), supra, states that a check is finally paid when the bank has completed the process of posting.” (Emphasis added.) Ill. Rev. Stat. 1965, ch. 26, par. 4—109 defines “process of posting” as follows:

“The process of posting’ means the usual procedure followed by a payor bank in determining to pay an item and in recording the payment including one or more of the following or other steps as determined by the bank:
(a) verification of any signature;
(b) ascertaining that sufficient funds are available;
(c) affixing a “paid” or other stamp;
(d) entering a charge or entry to a customer’s account;
(e) correcting or reversing an entry or erroneous action with respect to the item.’’ (Emphasis added.)

It is clear that the process of posting involves several steps some of which are those specified by plaintiff. The mere fact that some of those steps were taken does not mean that the process was completed. The affixation of the stamps and the entry on the customer’s account are but part of the process. Also included is the judgmental step of signature verification and, if necessary, correction or reversal of erroneous action. The act of the defendant in returning the check to plaintiff’s bank demonstrated that the posting process was not completed, regardless of the entry on the “statement of account” and the stamps, placed on the check. Because the posting process had not been completed acceptance had not occurred. Thus defendant was not obligated to pay.

Judgment affirmed.

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

       Ill. Rev. Stat. 1965, ch. 26, par. 3 — 409(1):
      Par. 3 — 409. DRAFT NOT AN ASSIGNMENT.
      (1) A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Thomas, Defendant-Appellant.
    (No. 11319;
    Fourth District
    August 27, 1971.

      Rehearing denied September 28, 1971.

      Lewis, Blickhan & Garrison, of Quincy, (Edward Tucker, of counsel,) for appellants.
    Robert J. Bier, State’s Attorney, of Quincy, (Matthew A. Hutmacker, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was indicted for aggravated battery and attempted murder. At a jury trial a verdict of acquittal was directed as to the charge of attempted murder. At the time of the instruction conference, the prosecutor requested and the court gave an instruction on the offense of reckless conduct. (I.P.I. Criminal 11.13—11.14.) The jury returned a verdict of guilty of the offense of reckless conduct. The defendant was sentenced to six months at the State Penal Farm and ordered to pay a $500.00 fine. This appeal follows.

It is the contention of the defendant that the evidence was insufficient to establish his guilt of reckless conduct beyond a reasonable doubt; that the trial court was in error when it gave tire instructions upon reckless conduct as a lesser included offense and that other erroneous instructions were given. This appeal originally filed in the Supreme Court was transferred here.

In August, 1968, the defendant was living with his family in a rural area some 6% miles from Quincy on a gravel road near Mill Creek Bridge. The defendant’s household consisted of his wife and their four children. The defendant kept saddle horses for his use and rented pasture and stable space for the use of others. On several occasions unknown persons had opened the gate of the corral where the horses were kept or pastured, allowing horses to escape. Because of these incidents of prowling, the defendant had engaged a private detective and apparently had notified the sheriff’s office. One of the persons who had kept horses at the defendant’s farm was a Christine AHensworth.

Christine AHensworth, her sister Charlotte Palmer, and her brother-in-law Tom Palmer, were together in Quincy, lUinois on the evening of August 13, 1968. Alcoholic liquor was being consumed. The three decided to go to the Thomas residence for purposes of collecting an indebtedness from Thomas to Christine AHensworth. Although there is some conflict in the evidence of the quantity of alcoholic liquors consumed, the evidence is rather clear that Thomas Palmer had had considerable to drink prior to leaving for the Thomas residence, en route thereto, and earlier at a tavern. These three persons arrived at the Thomas residence at around 10:30 P.M. A pole fight was on in the driveway area.

The evidence is further that the Thomas’s had gone to bed and were awakened when they heard the honking of an automobile horn, and heard the barking of dogs, and voices. When Mrs. Thomas awakened, her husband was already up. He inquired of her as to the location of a gun that he kept in the house. She answered the door whüe he was in the process of getting dressed and finding the gun. The evidence is that one of the three persons apparently called her name prior to the time that she opened the door. In any event, upon opening the door, she identified the callers by name and turned and informed her husband who was in another part of the house as to who was there. The husband came to the door, stood beside his wife in the doorway, and there followed a conversation between the defendant and Christine AHensworth and ultimately her brother-in-law Tom Palmer. The defendant had the gun — a .22 calibre revolver which he had purchased from a pawn shop in his hand. At a point in the conversation where defendant was explaining that he would pay the indebtedness to AHensworth, Palmer injected a comment, the defendant gestured toward Palmer with the gun, it discharged and Palmer was shot in the chest and was also hit in the area of his scalp.

There is a conflict in the evidence as to whether the gun was discharged once or twice, and there is likewise a conflict in the evidence as to the actions that would be necessary in order to discharge the gun two times in rapid succession. There is evidence in the record that the gun was defective and that under certain circumstances the bullet might not be aligned with the barrel and that a firing under those conditions would result in a fragmentation resulting in two projectiles.

On the issue of failure to prove defendant’s guilt beyond a reasonable doubt, we cannot say from our examination of this record that the proof is inadequate. While we need not detail the testimony of each of the witnesses, it is clear that there are shades and degrees of conflict in the versions of this incident: in the force necessary to fire the gun, and in the physical characteristics of the gun. In assessing the culpability of the defendant’s conduct, an important issue is credibility of witnesses. It requires no citation of authority to establish that under such circumstances the trier of fact and not this court must resolve the issue. That has been done here and we cannot say that the evidence is insufficient.

The court instructed the jury that the charge of aggravated battery included the lesser offense of reckless conduct (I.P.I. (Criminal) 2.01 modified.) The court than gave an instruction defining reckless conduct and an issues instruction on reckless conduct. The defendant’s contention is that reckless conduct is not a lesser included offense but is a separate statutorily defined offense. He contends that instructing the jury on reckless conduct without a prior indictment for that offense and without the opportunity for the preliminary procedures ordinarily invoked upon filing of a charge effectively denies him a reasonable opportunity to prepare for the defense of such charge and that such denial transcends the due process requirements to which he is entitled.

In People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499, at page 505, the court observed: “* * * it is elementary that it is unnecessary to allege a lesser included offense in an indictment charging an offense of a higher degree when, in order to convict on the higher charge, the prosecution must prove every element necessary for a conviction on the lesser charge. People v. King, 34 Ill.2d 199, 215 N.E.2d 223; People v. Simmons, 26 Ill.2d 400, 186 N.E.2d 263; People v. Lewis, 375 Ill. 330, 31 N.E.2d 795; Prindiville v. People, 42 Ill. 217.”

Thus there can be no valid objections on procedural grounds to instructions on a lesser included offense. The issue is not one of due process or reasonable opportunity to prepare because a lesser included offense by definition would be one of which the defendant had notice upon the filing of the greater charge. We hold that the offense of reckless conduct is a lesser included offense in this case.

The original charge of aggravated battery specified that the conduct of the defendant was that he knowingly and without legal justification while armed with a .22 calibre revolver shot Thomas Palmer and thereby caused great bodily harm in violation of the cited section of the Criminal Code. The offense of reckless conduct as defined in the instruction relates to the same date, the same place, the same victim, the same weapon, and the same allegation of great bodily harm. The only discernible difference relates to the mental state, recklessness being involved in the reckless conduct; and the defendant’s conduct having been “knowingly” with reference to the aggravated battery.

In People v. Norris, 118 App.2d 406, 254 N.E.2d 304, the court discussed the issue of whether a jury verdict finding a defendant guilty of aggravated battery and reckless conduct was fatally inconsistent and mutually exclusive. The court there observed that the intent element to support a verdict of aggravated battery is that the act be done intentionally and knowingly while the intent element to support reckless conduct requires only recklessness. Thus we conclude on the facts here that reckless conduct is included within the offense of aggravated battery and that the only element of difference relates to tire degree of culpability and the lesser of these relates to reckless conduct. See People v. Higgins, Ill. Rev. Stat. 1969, ch. 38, par. 2—9, 86 Ill.App.2d 202, 229 N.E.2d 161.

Although the abstract is not complete as to all instructions, we have examined the instructions given and refused, and considering those instructions as a series, we conclude that there was no reversible error in the giving and refusing of instructions.

Finally, we turn to the issue of whether the defendant’s conduct was such as to bring him within the definition of recklessness as found in section 4—6 of the Criminal Code, and section 4—3 of the Code with reference to mental state. (Ill. Rev. Stat. 1967, ch. 38, pars. 4—3, 4—6.) We conclude that the jury could determine under the facts and circumstances here that the defendant’s conduct was such as could constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. Such conduct performed recklessly is performed with the requisite mental state contemplated by the definition of recklessness. The judgment of the circuit court of Adams County is affirmed.

Judgment affirmed.

SMITH, P. J. and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Davidson, Defendant-Appellant.
    (No. 11349;
    Fourth District
    August 27, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.


author: Mr. JUSTICE ABRAHAMSON

text:
    Ruth E. Miles, Plaintiff-Appellant, v. Sears, Roebuck and Company, Defendant-Appellee.
    (No. 70-269;
    Second District
    August 31, 1971.

      Berry, Simmons & Coplan, of Rockford, for appellant.
    Keegan & Gosdick, of Rockford, Arnstein, Gluck & Weitzenfeld, of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Plaintiff sued to recover damages for injuries she sustained when her automobile was struck in the rear by a truck owned by Flowers by Connie, Inc., and driven by its employee, James Edmonds. Named as defendants were Flowers by Connie, Inc., James Edmonds and Sears, Roebuck and Co., who employed an off-duty policeman to direct traffic on a public street near its parking lot. Defendants Flowers by Connie, Inc., and James Edmonds were dismissed from said action upon a stipulation for dismissal which recited that plaintiff’s claim against those defendants had been settled. Thereafter, on April 18, 1969, the defendant filed an amended complaint alleging that the accident was caused by Sears, Roebuck and Co. (hereinafter referred to as Sears) and its agent, an off-duty policeman. The trial court granted a summary judgment for the defendant. The plaintiff has appealed, alleging that there is a genuine issue as to a material fact, and the trial judge improperly entered summary judgment in favor of the defendant.

On March 29, 1963, Sears had a retail store on the east side of North Main Street in the City of Rockford. A parking lot is maintained south of the store, and it has an exit onto North Main Street. North Main Street is a one-way street, with three lanes of traffic proceeding in a northerly direction. At about 4:00 P.M. that day, the plaintiff was driving her automobile northerly at a speed of 25 to 35 miles per hour in the westernmost lane of North Main, and there was traffic ahead of her in other lanes, alongside of her on the east, behind her, and behind her to the east. The vehicle behind the plaintiff was the truck driven by Edmonds, originally a co-defendant. The truck was traveling at about the same speed as the plaintiff’s car. About 50 to 75 feet south of the point where the parking lot exits onto North Main, the plaintiff saw a policeman in the middle of the street, signaling traffic to stop. Plaintiff stopped as did all other traffic alongside of her to the east and to the east but behind her, except for the truck driven by Edmonds. After she had stopped about five seconds, her automobile was hit in the rear by Edmonds’ truck. On deposition he testified that he had seen the policeman on the curb, but just before the accident his attention was called to a lady, with an armful of packages, approaching the west curb from the sidewalk, and he thought she might enter the street. He did not see the plaintiff come to a stop. When he first noticed her car, after looking at the woman with the packages in her arms, he applied his brakes but collided with her. Plaintiff and Edmonds were both familiar with North Main Street in this area as they had driven it many times, and both knew that from time to time there was a uniformed policeman directing traffic at the Sears parking lot.

The defendant filed a motion for summary judgment and in support thereof, filed an affidavit together with the depositions of the plaintiff and the former defendant, Edmonds. Plaintiff did not file any counter-affidavits. Upon considering the motion and having read the depositions, and hearing the arguments of counsel, the trial judge entered an order for summary judgment in favor of the defendant, Sears.

The plaintiff, in her brief, states that Edmonds was obviously guilty of causing the collision because he did not watch out for plaintiff’s automobile which was lawfully stopped by a police officer, but poses the question of whether the police officer was not also guilty of causing the accident. Plaintiff says the police officer was guilty of negligence contributing to the accident because he lacked judgment, did not make a proper signal and chose a time and distance within which to stop traffic so that he set the stage for an overtaking driver, who looked away, to strike the plaintiff’s car. Thus, the plaintiff states that the defendant, Sears, is hable for the negligence of its employee, the off-duty police officer.

If there is no genuine issue as to any material fact, then, as a matter of law, the trial judge properly considered the motion for summary judgment. (Ill. Rev. Stat. 1969, ch. 110, par. 57.) Having read the depositions and the affidavit of the defendant in support of its motion for summary judgment, we conclude that no material issue of fact was presented so as to prevent the entry of a summary judgment. In arriving at this conclusion, we have determined that fair-minded persons could not draw different inferences from the facts so that a triable issue exists. On a motion for summary judgment, the court is obligated to construe the pleadings, depositions and affidavits most strictly against the moving party. (Lumbermans Mutual Casualty Co. v. Poths, 104 Ill.App.2d 80, 88.) It appears that both Edmonds and the plaintiff were familiar with the street; they knew that a policeman would be directing traffic, at the place where the accident occurred, at certain times during traffic congestion; and both saw the policeman prior to the accident. Edmonds knew that the plaintiff’s automobile was in front of him when he turned to look at the lady on the sidewalk. Furthermore, plaintiff had been stopped approximately five seconds when Edmonds hit her automobile from the rear, although all other traffic around him stopped without any accident. It seems apparent that Edmonds had enough time to stop had he maintained a safe lookout, kept control of his vehicle, and used reasonable precautions to avoid a collision with the plaintiff. It has been held many times that a driver of an automobile who does not maintain a proper lookout and use every reasonable precaution to avoid a collision with the traffic ahead is negligent. Ferguson v. Zeman, 109 Ill.App.2d 417, 420; Barnash v. Rubovits, 46 Ill.App.2d 409, 412; Conner v. McGrew, 32 Ill.App.2d 214, 218.

Under the circumstances, we conclude that the plaintiff, even when the evidence is construed most favorably to her, could not prove an essential element of her case, namely, negligence of the policeman which was a proximate cause of the accident. Therefore, the entry of summary judgment in favor of the defendant was proper (Shramek v. General Motors Corp., 69 Ill.App.2d 72, 77), and the judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

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


author:
Mr. JUSTICE SMITH
      Mr. JUSTICE TRAPP,

text:
    The People ex rel. Empress Farms, Inc., Plaintiff-Appellee, v. Robert F. Schneider, Director of Agriculture, et al.—(United States Trotting Association, Defendant-Appellant.)
    (No. 11205;
    Fourth District
    September 3, 1971.

      Rehearing denied October 1, 1971.

    TRAPP, J,, dissenting.

      Carroll, Paxton & Blomquist, of Chicago, and Carl T. Meyer, of Springfield, (J. R. Blomquist, of counsel,) for appellant.
    Giffin, Winning, Lindner, Newkirk & Cohen, of Springfield, (Herman G. Bodewes, of counsel,) for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The issue in this case is whether or not a horse can win the three-year-old pace at the Illinois State Fan and lose the race in the courtroom. The race carried a purse of $14,883.00. The purse was delivered by the Director of Agriculture to the United States Trotting Association and is held by it. On motion of the Director, the Trotting Association was made a party-defendant to this suit. A protest was filed on the morning of the race and it was reviewed by the Board of Review of the United States Trotting Association and appealed to the Board of Appeals of that Association. The result was a finding that the horse, Chicago King, was not eligible for the race because the respective payments required for eligibility were not paid on time. Empress Farms, the owner of the horse, then filed its mandamus suit against the Director of Agriculture for the delivery of the winner’s purse. The trial court directed the Trotting Association to return the purse to the Director of Agriculture and directed him to deliver the purse to Empress Farms.

At the very threshold of our inquiry, we appeared to be somewhat restricted and fenced in by the fact that the Director of Agriculture has acquiesced in the decision of the trial court by not joining in this appeal. Further compounding our review is the pleading and procedural anomalies, the diction and contradiction in the pleadings and the legal conclusion pleaded from uncontradicted facts. After meandering at length among them, we have concluded that there is no fence at all and thus we need not discuss whether we go under the fence, over the fence or through it. We conclude that there is no dispute as to material facts but that it is confined to the legal conclusions that necessarily flow from them.

In 1965, the conduct of the Illinois State Fair reposed in the Department of Agriculture and it had the authority “to adopt and promulgate rules and regulations * * * which * * * shall prescribe * * * the conditions under which racing shall be permitted in the fairgrounds and the rules governing the same.” Ill. Rev. Stat. 1963, ch. 127, par. 40, subpar. 16.

Among the requirements for eligibility in the three-year-old pace in 1965 were prize additions totaling $250.00 and scheduled as follows: April 15—$25.00; June 15 —$25.00; July 15—$100.00; and a final payment of $100.00 due forty-eight hours prior to the race. There was a change of ownership in Chicago King and the June 15 and July 15 payments were not made. The Director of Agriculture removed the name of Chicago King from the eligibility list. Somewhere around July 29, the owner of Chicago King contacted the Director of Agriculture indicating that they had missed two of the payments because they had received no notice and requested that their horse be reinstated and offered to pay whatever additional penalty “you feel is necessary for such reinstatement”. On August 4, the Director reinstated Chicago King and sent to all other horse owners notification of that fact which stated “through inadvertence the name of the horse Chicago King was omitted from the eligible fist sent to you and the Department of Agriculture has placed said horse on the eligibility list effective immediately”. On August 6, the owner of Chicago King forwarded a check to the Department for the full balance due in fees. On August 16, the race was run and that morning a protest was filed by another entrant which stated “the three-year-old colt, Chicago King, was not listed in the list of eligible colts. Want proof that this colt’s payments were made on time”. At the time, therefore, that the race was run and for that matter some ten days prior thereto Chicago King was not in default in the total payments required for eligibility to race.

Under Ill. Rev. Stat. 1963, ch. 8, par. 37, it became the duty of the Department of Agriculture to promote the races mentioned in that section (including the three-year-old pace) and it states: “All prize additions collected from entrants shall be held by the Director of the Department of Agriculture, ex-officio, as custodian for the benefit of entrants and shall be paid out as part of the respective purses for such races.”

It should be noted from an examination of Ill. Rev. Stat. 1963, ch. 8, par. 37, and in the immediately succeeding paragraphs that there are many requirements for eligibility and whether or not these requirements are met is determined by the Director of the Departmnt of Agriculture or the investigators appointed by the Governor under § 20b of the same statute. It is further provided in that statute that the Department of Agriculture “may adopt reasonable rules and regulations not inconsistent with the provisions of this Act.” It does not appear from this record that any other or different regulations were adopted by the Department of Agriculture. One of the conditions of the race was “if any condition arises not covered by these conditions, the Department of Agriculture reserves the right to decide any question. All entrants agree to abide by that decision.”

This record further shows that there were several horses for whom either the first or second payment was made. They were dropped as ineligible entrants by the Director of Agriculture. It was he who made that determination. It was he who made the determination that Chicago King could be reinstated under the facts shown in this record. It strikes us as a strange phenomenon that it can be argued that the Director of Agriculture has no authority to waive the late payment of the prize addition or reinstate and determine a colt eligible when under the statute the Department of Agriculture makes the determination of eligibility on all other counts. Irrespective of any reasons assigned by the Director, the fact remains that his order is unequivocal when it reads:

“* # * that the horse, Chicago King owned by Mr. Louis K. Kirsh, # # # be reinstated and that its name be placed on the list of eligible entrants in the category for which it qualifies upon the condition that past due eligibility payments be paid according to the conditions set out by the Illinois State Fair Colt Stakes. It is also ordered that the Office of the Division of State Fair notify all presently eligible entrants of the reinstatement of the horse, Chicago King.”

Empress Farms met the conditions stated in that letter. It complied with the Directors order and paid the delinquent fees. In the face of the Director’s order, his acceptance of the delinquent fees and his notice to all other entrants that Chicago King was reinstated (and thus eligible), we find ourselves hard put to hold that the Director did not have the power to make this determination and could not certify the eligibility of Chicago King.

All parties here were members of the United States Trotters Association and it is claimed and asserted that its rules control the Director and that by turning over the purse to the Trotting Association and permitting the horse to run under protest the Director was operating under the rules of that Association and this he was bound to do. The difficulty with this position is that the rule of the Association which is pleaded by the Director is not applicable to him. It reads:

“* # * every entry shall constitute an agreement that the person making it, the owner, lessee, manager, agent, nominator, driver, or other person having control of the horse, and the horse shall be subject to these rules and regulations, and will submit all disputes and questions arising out of such entry to the authority and judgment of this Association, whose decision shall be final.”

It does not require a second reading of that rule to demonstrate that the Illinois Director of Agriculture is not included in any of the categories stated. It is likewise asserted that a rule of the Association states “failure to make any payment required by the condition constitutes an automatic withdrawal from the event.” It will be noted that this rule does not, strictly speaking, purport to cover a situation where the promoter of the race has accepted a late payment but has received all required payments forty-eight horns prior to the start of the race. Indeed it would appear that the circumstances here stated come within the proviso stated by the Director which was “if any condition arises not covered by these conditions, the Department of Agriculture reserves the right to decide any question. All entrants agree to abide by that decision # * it would seem that it is this proviso that should control. This being so, the Director was without authority to deliver this purse to the United States Trotting Association for their determination as to which horse was eligible and which horse won. The responsibility for determining eligibility was with the Director. He made that determination and permitted Chicago King to run. The post mortem delivery of the purse and the attempted transfer of responsibility for a determination of eligibility that he had already made was a nullity. Indeed, he does not complain of tire trial court’s order.

The United States Trotting Association was made a party-defendant on the motion of the Department of Agriculture. It filed its answer and a counterclaim for a declaratory judgment seeking a determination of the rights of the various parties in and to the fund. Although the trial comt dismissed this counterclaim, it in effect did exactly what the Trotting Association requested, that is, made a determination of rights and found that Chicago King was lawfully entitled to the purse albeit contrary to the asserted claims of the Association. The Association has appeared in this cause and submitted its interest to the jurisdiction of the comt, participated in the proceedings and has appealed. While mandamus is a writ directed to the performance of an official ministerial duty, the Association in effect brought the purse into jurisdiction of the comt. It is a party-defendant. Accordingly, the order directing the Association to retmn the money to the Director of Agriculture is affirmed.

It being the statutory responsibility of the Director to hold this purse for the benefit of the entrants and it appearing that Chicago King was an entrant and was the winner of the race on the tract, there is nothing to be done other than to deliver that purse to Chicago King.

The judgment of the trial court is affirmed.

Judgment affirmed.

CRAVEN, J., concms.

Mr. JUSTICE TRAPP,

dissenting:

The opinion takes the position that the letter of the Director of Agriculture, dated August 4th, was a final determination that the horse was eligible to participate in the race.

The conclusion of the majority disregards all actions of the Director following the filing of the protest, i.e., the racing of the third heat with an additional horse and the fact that the Director determined not to pay the purse to the owner of King. Finally, the pleadings filed in behalf of the Director deny that the horse was the winner.

It is to be concluded from the record that the protest of eligibility was timely filed on the day of the race as the notice to the other entrants simply stated that “through inadvertence” the name of the horse had been omitted from the list.

It is clear that as of August 4th, the Director had not made any final determination of eligibility in the light of the protest filed by the other owners. His subsequent actions are essentially consistent with the conclusion that following the protested race the Director determined that there was a failure to comply with the rules and that the horse, King, was not a winner.

It is clear that the announced conditions of the race were the rules of the Association and that such rules provided that in the event of a protest at the start of the race, the judges, in the absence of evidence which would exclude a horse, should permit the horse to race and subsequently transfer the prize to the hearing procedures of the Association for final determination. The record shows that all parties submitted the case to the jurisdiction of the Association, proceeding both through hearing and review. There was no challenge of the procedure until the decision was adverse to this horse.

It is held that the Director could not follow the rules of tire Association because they had not been filed with the Secretary of State as “Rules” of the Department of Agriculture. Ch. 127, par. 263 through 266. Paragraph 264 defines a “Rule” as a matter of general application to implement or make specific the law administered, but specifically excludes matters not generally affecting the rights or procedures available to the public. It is very doubtful that the “conditions of the race” generally affect the rights or procedures available to the public, but even if it be assumed that the statute applies, the published conditions of the race provided: “If any condition arises not covered by these conditions, the Department of Agriculture reserves the right to decide any question.” It seems apparent that the filing of a protest of eligibility of the horse is such a condition contemplated by this provision. The record clearly shows no decision of the Director following the race held under protest. By such stated terms, if the Director was not bound to permit the Association to determine the winner of the protest race, he was bound to make the determination himself.

The Association is more than a mere stakeholder. Upon the evidence, it is a responsible organization which pursuant to rules and contracts with its members held out to them with official sanction, however mistaken, a procedure for settling grievances in respect to the race. Having received the fund under conditions of trust, it is fair and just that in disposing of the fund it may rightfully assert on behalf of its members that appropriate officials make a decision upon the questioned race.

While mandamus may not compel an official to exercise his discretion in a specified manner, it is proper to direct such official to proceed with the exercise of his discretion. People ex rel. McGrady v. Carmody, 104 Ill.App.2d 137; 243 N.E.2d 19.

I would reverse the order of the trial court that the Director pay the prize money to the petitioner, and remand with directions that the court order the funds held by the Association be paid to the Director and that he proceed to determine the winner of the race and the proper disposition of the prize money.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph A. Vickery, Defendant-Appellant.
    (No. 11456;
    Fourth District
    August 27, 1971.

      Rehearing denied October 5, 1971.

      John E. Gambill, of Rantoul, (James Blunk, Senior Law Student, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Kenneth E. Baughman, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Ralph A. Vickery, was convicted on a plea of guilty of involuntary manslaughter, was denied probation and sentenced for an indeterminate term of three to ten years.

Defendant’s brief states the sole issue presented by this appeal to be "Whether the defendant is entitled to a new probationary hearing because the trial judge abused his discretion in deciding the issue of probation on his own preconceptions and predilections which precluded a fair consideration of the petition on its merits”.

The acts committed by the defendant, which resulted in his indictment and conviction were these: he beat to death a ten year old child, his stepson, Charles Shupaek.

Defendant’s family consisted of his wife, who had been previously married, three stepchildren who were Charles (the victim), Candace, age eight, Chris, age six, and his own son, Robbie, an infant, the only child of defendant and his wife.

The incident which gave rise to defendant’s conviction occurred on May 25, 1970. Defendant and his wife had left the children with a baby sitter and on their return Charles was accused of eating some jello from a bowl in the refrigerator. While Mrs. Vickery was engaged in a telephone conversation with a friend, one Antoinette Barren, the defendant began to punish Charles who had apparently denied eating the jello. The lad then offered to tell defendant the truth, about the jello if he would cease the punishment. Defendant testified he felt the boy was trying to "bargain” with him and began to beat the boy’s head on the floor. This was done with sufficient violence to be audible to Mrs. Barren on the other end of the telephone line. She testified that it sounded like “* * * a kid with a ball and bouncing it but not rapidly. Just, you know, just slow.”

The defendant and his family lived in a mobile home. A neighbor, Mrs. Karen White, lived in a mobile home some fifteen feet distant. On the day in question her windows were closed and she too, heard the “# # * loud, thumping noise.”

Defendant’s wife left the telephone when tire violence erupted and saw Charles on the floor unconscious and bleeding. Defendant picked the child up by the hah- and said that there was nothing wrong with him, * * he’s just kidding”. The child died later of head injuries.

The other children saw the beating and defendant stated to the six-year-old, Chris, that he might get a taste of what Charles had gotten.

Defendant and his wife told the doctor at the hospital when Charles was taken that the child had had a temper tantrum and bumped his head on the floor.

There is an abundance of credible evidence in this record that the defendant had, for several years, been guilty of a persistent pattern of child abuse, of administering physical punishment on helpless children far in excess of civilized standards. It takes a strong stomach to read this record in its entirety.

At one time defendant was possessed of a wooden paddle with which he whipped the children, and on one occasion bruised the child Chris, then aged five, so badly about the kidneys that he was hospitalized. Thereafter, defendant testified, he changed his method of punishment and would have the child bare its buttocks and bend over a piece of furniture. He felt that the paddle was “* # * a symbol of authority.” On some occasions he would have the other children watch while punishment was being administered.

It is also clear from the record that on one occasion he administered a severe burn to the thumb of the child Chris, in an effort to cure him of sucking his thumb.

On at least one prior instance a doctor had suspected child abuse when one of the children was taken to the hospital.

The wife testified that she had once had to threaten their own child, Rob, in order to make defendant desist from punishment of one of his stepchildren, saying, “Uh, the incident that I think you are talking about is one time when Allen was mad and was correcting one of the children, and I told him to stop. And he said, uh — he acted like he didn’t hear me or anything. And I called him several times. And so I said, well, if you’re —if you’re going to — if you’re going to be that hard, I said I’ll just go and get Rob. And he quit then because he saw what — you know, I got his attention.”

It is against this background that defendant selects two particular remarks of the Mai judge as demonstrating that the decision to deny probation was based on “* * * his preconceptions and predilections” and thus seeks to establish an abuse of discretion.

Three co-workers of defendant had testified that defendant, at work, had never shown any evidence of temper and violence. In his comments, made at the time of ruling on the Petition for Probation, the judge referred to this testimony and said, “Certainly there must have been some evidence of something when this particular act was committed.” Defendant then argues that the judge “* * * ignoring this testimony assumed that there was evidence of a temper and violence” as demonstrated by his remarks.

This argument barely deserves comment. How it would advance defendant’s cause to convince us that beating a helpless child to death, while in a calm reflective state of mind, is a proposition which escapes us.

Defendant also states that there “# * * was no evidence of prior explosive episodes or evidence of temper.”

Attached to the report of the probation officer, and therefore before the judge at the time he made his decision to deny probation, were the reports of several psychiatrists and psychologists. Doctor Clifton Rhead, in his report of his interview with the defendant, stated that the defendant, at the time of the incident in question, “* # * recalled becoming angrier when he felt that the boy was trying to make a deal’ with him.” The report of Doctor Eisen described the defendant as having “* * * little or no ability to deal with the emotional tensions of everyday living. Under such pressure he is likely to explode into violent behavior”, and Doctor Eisen further felt that the defendant was not “* * * capable of a warm meaningful relationship with others”, and that he had “the potentional for psychotic-like rage reactions.”

Doctor Greenfield said that during his interview the defendant stated that “I lost control, hit him over the head and face and he didn’t move.” This evidence hardly squares with defendant’s claim that there “* * * was no evidence of prior explosive episodes or evidence of temper”.

Defendant also complains that when deciding on a date for hearing in aggravation and mitigation, the trial judge “* * * showed his feeling toward the possibility of defendant receiving probation when he said: ‘I suppose should he by some chance get probation that would be a more or less moot situation.’” The defendant argues that this clearly demonstrates that the judge had already made up his mind on the issue of probation before the hearing was had.

It should be noted that defendant had just entered his plea of guilty, and we place this remark in context by quoting from the record:

“MR. GAMBILL: Your Honor, we would like to have a hearing in aggravation and mitigation. It will be some time now because there is much work to be done, some witnesses to come back from Texas. I have some psychological and psychiatric testimony that I intend to introduce at that time. To expedite matters my client and I will agree that Mr. Johnson can have his psychiatrist talk to the defendant at any time, so he is not taken by surprise and all the testimony can be placed in at one time. Further we intend to make a motion for probation. We have no objection at any time to any members of the probation office going to the jail to interview the defendant.
THE COURT: Show a motion of the defendant to be admitted to probation. The motion is referred to the Probation Officer of this Court for investigation and report. The cause is continued — .
MR. GAMBILL: Your Honor, can we have thirty days on this?
THE COURT: All right — to June 25th, 1970 for said report. I don’t know what you want to do about a hearing in mitigation and aggravation. I suppose should he by some chance get probation that would be more or less a moot situation. Do you want it set the same day?”

Taken in context, it seems again, that this is an unwarranted allegation.

It could be argued, for example, that the request for hearing on aggravation and mitigation, made by defendant’s counsel prior to indicating that a petition for probation was to be filed, would indicate a tacit concession that probation was an unlikely prospect, and this his representation of defendant was therefore subject to criticism. This accusation would be as valid as that made by defendant against the trial judge. A reading of the entire record refutes both propositions. Defendant was ably represented, and there is nothing in the record to indicate anything but a fair resolution of the issue with reference to probation. The trial judge heard ten witnesses testify on the issue, considered the report of the probation officer, and all of the psychiatric and psychological reports attached thereto, reserved ruling to consider tire matter. That he did in fact carefully, conscientiously review and weigh the record before him, is irrefutably established by the statement which he made in denying fire petition. That statement covers some eight to ten pages of the record and sets forth reasons, and in our view, an entirely adequate basis for his ruling. It should also be noted that the State’s Attorney recommended a sentence of seven to ten years which the trial judge refused to adopt, and imposed sentence as above indicated.

The granting or denying of an application for probation rests within the discretion of tire trial court and we will not disturb the ruling of the trial court when that court has exercised its discretion (People v. Pelikan, 6 Ill.2d 275, 277, 128 N.E.2d 741), unless that discretion is abused. (People v. Sims, 32 Ill.2d 591, 596, 208 N.E.2d 569.) Here, it is abundantly clear that the trial judge did exercise his discretion, and it is equally clear that he did not abuse it. This appeal is without merit.

Judgment affirmed.

SMITH, P. J. and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danny Evans, Defendant-Appellant.
    (No. 11314;
    Fourth District
    September 3, 1971.
    Ryan and Heller, of Mattoon, (Harlan Heller, of counsel,) for appellant.
    Allen F. Rennett, State’s Attorney, of Sullivan, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

In September 1969 an information was filed charging the defendant with disorderly conduct, assault and two counts of aggravated battery. Thereafter, upon a finding that the defendant was indigent, court-appointed counsel was provided. The order appointing counsel was on September 22, 1969. The next matter in the record is a motion for substitution of a judge filed under date of January 5, 1970. That motion, supported by affidavit, asserted that the case was set for trial before Judge Joseph C. Munch, and that said judge was prejudiced against defendant. The court proceeded to a hearing on this motion, apparently acting upon the theory that section 114 — 5(c) of the Code of Criminal Procedure was applicable. (Ill. Rev. Stat. 1969, ch. 38, par. 114—5(c).) That statute relates to substitution of judge for cause and provides for a hearing to determine the merits of the motion.

Paragraph (a) of this statute provides for a substitution of judge if the motion is filed within ten days after a cause has been placed on the trial call of a judge. Upon the filing of a motion under the circumstances there specified, the assigned judge is mandated to proceed no further in the cause but shall transfer the cause to another judge not named in the motion. The record in this case tells us the counsel was appointed on September 22, 1969. There is no further entry in the record with reference to assignment of the cause to any judge for trial or substantive preliminary motion. In fact, the next matter in the record is the motion for substitution of judge and that motion was filed on the date the matter was set for trial, although it is not ascertainable from the record that it was in fact set for trial on that date, nor does the record indicate the judge to whom the cause was assigned. Thus the motion for substitution of judge was timely filed for the simple reason that it was filed at the earliest practicable moment when the identity of the trial judge was ascertainable from the record.

In any event, the matter was heard as we have indicated, as a motion to disqualify for cause. The hearing was held in the courtroom in the presence of all the prospective jurors who had been called to try the case on its merits. No objection to this procedure was interposed by the defendant. Evidence was received as to prior instances when the defendant had been before Judge Munch and these incidents were related although none of them involved matters that would be admissible under any circumstances in a trial. During the course of that hearing, the state’s attorney stated that the defendant had been before the court “umpteen times”.

After this hearing before the prospective jurors, the court denied the motion and proceeded to trial. The defendant was found guilty and fined the sum of $50 on the disorderly conduct charge and $50 on the assault charge and sentenced to the Illinois State Penal Farm at Vandalia for a period of one year on each of the counts of aggravated assault, sentences to run concurrently.

The defendant filed a post-trial motion suggesting there was error in denying the motion for substitution of judge and error in conducting the hearing on that motion in the presence of all the prospective jurors and likewise complained as to certain asserted prejudicial and inflammatory language of the state’s attorney in the final argument. This appeal follows the denial of the post-trial motion.

The trial com was in error in denying the motion for substitution of judge. In People v. Ehrler, 114 Ill.App.2d 171 at page 178, 252 N.E.2d 227 at page 230, the court discussed the question of the right to substitution of judge and stated: “The provisions of Section 114—5 of the Criminal Code (supra) are to be read and construed in pari materia with the provisions of Chapter 146, Secs. 18-35, providing for the right to a change of venue for prejudice to the judge. See Committee Comments: See also The People v. Rosenbaum, 299 Ill. 93, 94, 132 N.E. 433 (1921); The People v. Davis, 10 Ill.2d 430, 434, 140 N.E.2d 675 (1957); and The People v. Myers, 35 Ill.2d 311, 326, 220 N.E.2d 297 (1966). Venue provisions receive a liberal rather than a strict construction and should be construed to promote rather than defeat the right to a change in venue, particularly where prejudice on the part of a judge is charged; but defendant must comply with statutory requirements and the petition must be offered at the earliest practical moment. One criterion for determining the timeliness of such a motion is whether it is filed before the court has considered a substantive issue in the cause. The People v. Chambers, 9 Ill.2d 83, 87, 136 N.E.2d 812 (1956). The purpose of the rule is to preclude counsel from first ascertaining the attitude of the trial judge on a hearing related to some of the issues of the cause, and then, if the court’s judgment is not in harmony with counsel’s theory, to assert the prejudice of the court as a ground for allowing the change. The People v. Chambers, supra, page 89, 136 N.E.2d 812.”

The motion for substitution of judge should have been treated as a motion within ten days after the cause had been placed upon the trial call of the assigned judge. There is no suggestion in this record that the judge from whom the change was sought had ruled on any substantive matters and certainly here, as in Ehrler, venue provisions are to receive a liberal rather than a strict construction which necessitates construction to promote rather than defeat the right to change of venue.

It is no answer as is suggested in this record that the motion for substitution of judge should be considered in the light of the fact that the jury would pass upon factual issues. The right to trial before an impartial judge is unrelated to the issue of factual determinations by the jury.

It was likewise error and reversible error to conduct the hearing to ascertain cause for the motion before the prospective jurors.

Upon denial of the post-trial motion, the trial judge observed that the motion heard before the venire from which the jury was to be selected was made by defense counsel, and thus complaint cannot be made of such procedure. It was the responsibility of the trial court to assure the defendant a fair trial. It is the court, not counsel, that determines the procedure for hearing motions. It seems to us to be fundamental, that a hearing on a motion would not be held before a panel of prospective jurors when most if not all the evidence adduced in support of the motion would be inadmissible in the trial of a case. (See People v. Walker, 84 Ill.App.2d 264, 228 N.E.2d 597.) Such is at the foundation of fundamental fairness.

Finally, the defendant urges with some persuasion that he has served six months of the imposed sentence prior to his release on bail pending appeal, and that under such circumstances we should reverse without remanding. The error we find in this record mandates a new trial before a different judge. The question of sentence, if and when there is another conviction, must be considered in the light of the record developed in the second trial.

The judgment of the Circuit Court of Moultrie County is reversed and this case is remanded to that court with directions to grant the motion for substitution of judge and for further proceedings in accordance with tire views expressed in this opinion.

Reversed and remanded, with directions.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vernon R. Bailey, Defendant-Appellant.
    (No. 11375;
    Fourth District
    September 3, 1971.

      G. Edward Moorman, of Alton, for appellant.
    Charles J. Ryan, State’s Attorney, of Jacksonville, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

In March, 1970, the defendant was charged with possession of less than 2.5 grams of marijuana and sale of marijuana. In April of that year, pursuant to leave of court, an additional count was filed charging the defendant with possession of more than 2.5 grams of marijuana. On the same day defendant waived indictment and entered a plea of guilty to the newly filed charge of possession of more than 2.5 grams of marijuana under the then statutory definition of the offense found in section 22—40—6 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 40—6.) Prior to accepting the defendant’s plea of guüty to the charge of possession of more than 2.5 grams of marijuana, the circuit court admonished the defendant, who was then represented by counsel, as to the consequences of his plea and explained the various rights to a jury trial, to indictment by a grand jury, and other attendant constitutional protections. The plea of guilty was accepted.

Defendant made a motion for probation and that matter was set for hearing at a subsequent date. There was an extensive hearing on the motion for probation, at the conclusion of which probation was denied and the defendant was sentenced to a term of not less than 2, nor more than 10 years in the penitentiary. This appeal is from the judgment and sentence.

It is here urged that the trial court erroneously accepted the plea of guilty without full admonishment as to the defendant’s rights and that the action of the trial court in denying probation was such as to constitute an abuse of discretion and finally that the sentence was imposed without a hearing in aggravation and mitigation and is excessive and should be reduced on appeal.

Counsel for the appellant at the time of oral argument expressly waived his contention that there was no hearing in aggravation and mitigation.

We have examined the record in detail with reference to the admonition given by the trial court to the defendant. We are very mindful as we examine this record that this possession charge was subsequently filed and that the acceptance of the plea of guilty necessarily involved an understanding that there would be no prosecution on the more serious charge of sale as the law then existed. We find no substance to the defendant’s contention that the admonition was in any way deficient. At one point the comt did observe that if the defendant should be “found guilty”, but in the context of that observation the court was clearly discussing the consequence of a judgment of guilty upon the acceptance of the plea.

An extensive hearing with reference to probation was conducted in the trial court. There was a thorough exploration by the trial court of this offense and of the defendant’s history and background and tire natme of his involvement with marijuana. The court heard testimony from many citizens of the community urging probation, heard argument of counsel, and this record gives meaning to the often used phrase that the court was, in fact, fully advised in the premises. We find no abuse of discretion in the denial of probation.

This defendant was convicted of an offense under the then statutory structure which classified marijuana as a narcotic and certain severe mandatory penalties were applicable, particularly upon conviction of sale. Possession was probationary; sale was not. The quantity of marijuana here involved was substantial — the reference being to 5 or 6 pounds.

Subsequent to this conviction and while this case was pending in the appeal process, the General Assembly enacted substantial and comprehensive changes in the drug laws with particular reference to marijuana. That legislation, known as House Bill 788, now Public Act 77-758, was approved by the Governor on August 16, 1971. In his message to the legislature, the Governor noted that: “Under the old law, heroin, perhaps the most dangerous addictive drug, is classified on the same plane as marijuana, a tobacco-like substance smoked by many people, despite serious questions as to whether it has any harmful effects. Marijuana will now be controlled under House Bill 788 which will be known as the ‘Cannabis Control Act.’ ”

The penalty structure provided in Public Act 77-758 is substantially different.

In section 1 of the new Act the General Assembly expressly states that the current state of scientific and medical knowledge concerning the effects of cannabis makes it necessary to acknowledge the physical, psychological and sociological damage which is incumbent upon its use, but further declares that previous legislation enacted to control the use of cannibas has unnecessarily and unrealistically drawn a large segment of our population within the criminal justice system without succeeding in deterring the expansion of cannibas use. The legislative intent in the new Act is stated to be “To establish a reasonable penalty system which is responsive to the current state of knowledge concerning cannabis and which directs the greatest efforts of law enforcement agencies toward the commercial traffickers and large-scale purveyors of cannabis. To this end, this Act provides wide latitude in the sentencing discretion of the courts and establishes penalties in a sharply rising progression based on the amount of substances containing cannabis involved in each case.”

Section 4 of ch. 131, Ill. Rev. Stat. 1969, provides in substance that a defendant may benefit by a statute that mitigates a penalty in the event of sentencing after the effective date of the mitigation statute notwithstanding the date of the offense. After sentencing, this option is no longer available. (See People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359.) However, in People v. Carleton, 116 Ill.App.2d 450, 252 N.E.2d 702, we noted that where the legislature changed a penalty provision with reference to marijuana and the legislation became effective while the case was on appeal, that it was appropriate that the trial court reconsider a sentence in tire light of that policy determination by the legislature.

In addition to the foregoing, section 18 of Public Act 77-758 provides: “Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted would be a violation of this Act, and has not reached the sentencing stage or a final adjudication, then for purposes of penalty the penalties under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Emphasis added.)

This record reflects that at the time of the hearing for probation, the State’s Attorney did not oppose the granting of probation but rather expressly stated to the court that “In view of the entire record and in view of the testimony of some of the moral leaders of our community, I might say that I think I’ve done my job by bringing this case to court and that my position on the motion for probation is neutral, # The trial court determined to deny probation but in so doing expressly stated that he felt a minimal sentence was appropriate.

In his brief filed in this court, the State’s Attorney discusses People v. Carleton and states with the commendable candor that we have come to expect from his office that the defendant and the trial court should avail themselves of an interim legislative change of attitude toward the offense and concludes by observing that he has no quarrel with the Carleton case.

Thus, in this case, as in Carleton, a significant, substantial and mitigating basic public policy change has intervened. Since this case is pending on appeal, it is not a final adjudication within the meaning of the statute above quoted and it is appropriate therefore, as in Carleton, that this case reflect this policy change by the legislature in reclassifying and restructuring penalties with reference to marijuana. Under the new Act, the offense here established would be subject to a penalty under section 4(e) of imprisonment in the penitentiary of not less than 1 nor more than 5 years, unless it is a second offense, and such is not the fact here. It is appropriate, therefore, that this sentence be modified in accordance with the new statute and acting under the authority of Supreme Court Rule 615, the sentence is modified with a minimum sentence of not less than 1 year and a maximum of not more than 5 years.

The judgment of conviction and the sentence as modified are affirmed.

Affirmed as modified.

SMITH, P. J. and TRAPP, J., concur.


author: Mr. PRESIDING JUSTICE ENGLISH

text:
    Hans J. Ten Eicken, Plaintiff-Appellant, v. Lloyd Johnson et al., Defendants-Appellees.
    (No. 54200;
    First District
    August 20, 1971.
    John G. Phillips, of Chicago, (Ellis B. Rosenzweig, of Chicago, of counsel,) for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (Marvin E. Aspen, Richard F. Friedman, Assistant Corporation Counsel, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

Plaintiff’s amended complaint alleged that in December of 1963 he suffered personal injuries when his car fell into an unmarked rut on a Chicago public street, causing the car to strike a pillar beacon in the middle of the street. At the time, defendant Johnson was the Commissioner of Streets and Rogers was the Deputy Commissioner. This appeal is from an order of the trial court which granted defendants’ motion to strike the amended complaint and dismissed the cause of action.

Because of the date of the alleged tort in this case, plaintiff’s argument will be better understood after a brief summary of the development of the law in the area of governmental immunity.

In 1959 the Illinois Supreme Court decided Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, which ended tort immunity for school districts specifically and denounced generally the concept of governmental immunity which had existed in Illinois for decades. The opinion, at page 20, included the statement that “It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of then employment.”

The General Assembly thereafter enacted numerous statutes to limit or immunize from liability various governmental units. In Harvey v. Clyde Park Dist., 32 Ill.2d 60, the Supreme Court held one of these immunizing statutes unconstitutional on the basis that the distinctions drawn between governmental bodies for the purposes of the various statutes were irrational and arbitrary. See also Hutchings v. Kraject, 34 Ill.2d 379; and Grasso v. Kucharski, 93 Ill.App.2d 233, which applied the Harvey case to these statutes generally.

In 1965, the General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act, Ill. Rev. Stat. 1965, ch. 85, par. 1—101, et seq. Section 2 — 201 of that Act reads as follows: “Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.”

Plaintiff’s position is that this statute is inapplicable, having been enacted in 1965, while the alleged tort occurred in 1963, and the Molitor case was in full effect at that time, allowing recovery on common law principles of tort liability. Defendants recognize the applicability of common-law principles, and take the position that section 2 — 201 above is the statutory embodiment of what has been the prevailing common law relating to liability of public officials entirely apart from the question of governmental immunity. Defendants say that they are not liable, as the acts complained of relate to the exercise of discretion in the performance of their duties or policy-making functions.

The case relied on by plaintiff is Kitto v. Wattleworth (1960), 24 Ill.App.2d 484, 494, in which the Second District Appellate Court held that a County Superintendent of Highways and a Road Commissioner of a township could be held personally liable for negligently permitting a road to be in a dangerous condition. The court reached this conclusion on the authority of the opinion in the Molitor case, citing its broadest language to the effect that liability follows negligence.

In the later case of Lusietto v. Kingan, (1969), 107 Ill.App.2d 239, tire facts of which are substantially the same as those in Kitto and in the case before us, the Third District Appellate Court held that the Maintenance Supervisor of certain State highways was personally immune from suit for injuries resulting when a car had struck a hole in the highway. The court said at page 244: “Quite apart from the doctrine of governmental immunity, the case law in this state has developed the doctrine of public officials’ immunity. This doctrine is distinguished from and founded on a different rationale from the principle of governmental immunity * * *. In Nagle v. Wakey, supra, our Supreme Court held that the duty to keep highways in repair was a duty which required the exercise of judgment and discretion and that in performing this duty the commissioners were clothed with discretion as to the practicability of making improvements and as to the best methods to be employed, they were therefore protected by this theory of immunity. We believe that the defendant in the case now before us is entitled to that same immunity. Although the case of Molitor v. Kaneland Community Unit School Dist., * * * abolished the principle of governmental immunity, it did not destroy the principle of public officials’ immunity.” (Emphasis supplied.)

Further, at page 244, the court also pointed out as the rationale for this rule that public officials performing their duty in this situation must use their discretion as to which repairs to make, in what order, and all “within the limitations of available manpower, equipment and finances.” Continuing, at page 246, the court outlined the difficulties that would be raised if a contrary rule were adopted: “To hold the defendant liable in this case would be productive of many problems. Who, in the chain of command concerning state highways would be responsible? As orders filter down and reports filter up, would each individual in line be personally responsible? What if budget deficiencies due to insufficient legislative appropriations required a restriction in repair work so that only half the holes in the State’s highways could be filled? Moreover, it is common knowledge that no highway is without imperfections. If every rut, hole, or blemish on the highway were to create the possibility of personal liability against one or more employees of the State Highway Department, it would be impossible to find employees willing to serve under such conditions.”

Specifically with regard to Kitto, supra, the court in Lusietto, at pages 245-46, found that case to be contrary to Nagle v. Wakey, 161 Ill. 387, thus failing to distinguish between governmental immunity and the immunity of public officials.

We agree with the Lusietto court that Molitor did not overrule Nagle on this point, and find the latter opinion of particular pertinence in outlining the character and extent of a public official’s immunity. In Nagle, the suit was against a highway commissioner, personally, for the negligent maintenance of a bridge. The court, at page 393, noted that the commissioners “are clothed with the discretion as to the practicability of making improvements and as to the best methods to be employed.” The court then set out the distinction between ministerial duties and discretionary ones, the latter giving rise to immunity: “Even if it is proper to call the act of repairing a highway or bridge ministerial, it is a duty which unquestionably involves the exercise of judgment and discretion as to time, method and means, and is readily distinguishable from such ministerial duty as merely involves the following of specific directions and instructions.”

The court, at page 394, concluded: “We do not think that the commissioners, who in good faith and to the best of their ability have expended the means at then command where they seemed to them most needed, can be called upon to justify their judgment to the satisfaction of a jury at tire peril of their savings.” See also: David C. Baum, Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act, 1966 Univ. of Ill. Law Forum, 981, 995, 1001.

Plaintiff also calls our attention to the case of Blazer v. Highway Com’r of Marengo Township, 93 Ill.App.2d 89, 96. There, the suit was against the “Highway Commissioner of Marengo Township” which the court recognized as a quasi-public corporation and held: “To the extent that there may be negligence, in some manner, in the carrying out of these duties by the officer, his agents or employees in the course of their employment, the quasi-public corporation, the defendant, may be held liable therefore.” (Emphasis supplied.)

The court noted, by way of dictum, that there may be some unspecified circumstances under which a public officer may be personally liable. That general observation by the court, however, cannot, in our opinion, be given the weight plaintiff would ascribe to it for the purpose of abrogating the common law immunity from liability for the discretionary acts of government officials. If it were to be so construed, we would find ourselves in agreement, rather, with Lusietto, supra, which is a specific decision squarely in point on the facts.

We conclude, therefore, that during the interim between the Molitor decision and enactment of the 1965 governmental employees immunity statute, the common law governing the instant case continued to provide governmental officials with immunity from liability in their exercise of discretionary authority.

The judgment dismissing the cause of action is therefore affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ„ concur.

       Johnson died during the course of these proceedings and his Executor, The Northern Trust Company, was substituted as party defendant. As background, this court was advised during oral argument that the defendants were personally sued in this case because of a failure of required notice as a condition to suit against the City of Chicago.

       In Lusietto the defendant was the maintenance supervisor over 240 miles of highways. We have been advised in the briefs that defendants in the instant case were charged with the maintenance of approximately 4,000 miles of streets in the City of Chicago.

        Lusietto was decided a year after Blazer and nine years after Kitto. Since Kitto and Lusietto appear to be in direct conflict, we consider it to be of some interest, at least, that the Supreme Court denied leave to appeal in Lusietto. 41 Ill.2d 581.


author: Mr. JUSTICE SCHWARTZ

text:
    Ruth DuPree, Plaintiff-Appellee, v. Jet Terry, Defendant-Appellant.
    (No. 54366;
    First District
    August 20, 1971.

      Stern, Rotheiser & Ginsberg, Jerome H. Torshen, of Chicago, for appellant.
    Jerome Feldman, of Chicago, for appellee.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Plaintiff was injured on July 26, 1963, in a collision between a taxicab in which she was a passenger and an automobile driven by defendant. She initially filed suit only against the Yellow Cab Company, but amended her complaint on March 30, 1965, charging defendant Terry with various acts of negligence. On November 26, 1965 the Yellow Cab Company paid plaintiff $3000 for a covenant not to sue. Suit was dismissed as against the cab company and the case proceeded to trial against Terry. On April 14, 1969, judgment in the sum of $8000 was entered for plaintiff on a jury verdict. The defendant Terry appealed, contending (1) that plaintiff’s testimony at the trial so materially contradicted her pre-trial deposition that fire judgment should be reversed without remandment, (2) that the trial court improperly restricted defense counsel’s cross-examination of plaintiff’s witnesses, and (3) that in any event the judgment should be reduced by the amount paid plaintiff by the Yellow Cab Company. The facts follow.

Prior to trial plaintiff’s discovery deposition was taken by the Yellow Cab Company. Under oath plaintiff stated that upon entering the cab she noticed that the driver was eating barbequed ribs, that a block before the accident he “ran a red light” and almost hit three children and that on that occasion she again noticed that he was eating, that when the cab arrived at State Street the traffic light was red and “he just went through it.” Plaintiff also stated that “the cab driver was in an awful hurry” and “hit” defendant’s vehicle. A short time after the deposition was taken, the Yellow Cab Company negotiated the settlement with plaintiff.

At the trial the first witness to testify was Dr. George Barnett. He stated that he was a general practitioner of medicine and that he treated plaintiff for the injuries she allegedly sustained. Ernest Reynolds, driver of the cab, testified that after plaintiff entered his cab, he proceeded west on 47th Street and that as he approached the intersection of 47th and State Streets in the city of Chicago, he noticed that the traffic light for westbound traffic was green and that, as he entered the intersection, his cab was hit by defendant’s vehicle which had attempted to cross 47th Street southbound against the traffic fight.

Plaintiff’s testimony on direct examination was limited to the fact that she was a passenger in the cab involved in the accident and that she was thereby injured. The rather narrow scope of plaintiff’s direct examination and the trial court’s corresponding restriction of cross-examination made it necessary for defendant to call plaintiff as an adverse witness under section 60 of the Civil Practice Act. Plaintiff then testified contrary to her pre-trial deposition that tire driver of the cab was not eating anything when she entered the cab, that she did not see him eat anything at any time prior to the accident, that as the cab approached State Street on 47th Street, the traffic light was green and that when the cab was approximately one car length from the intersection, the light was still green.

Defendant’s version of the accident was that he stopped at a red light at the intersection of 47th and State Streets, that he did not move his vehicle forward until the light change to green and that his car was hit by the taxicab after he entered the intersection. We proceed to a consideration of the defendant’s first point.

Defendant contends that the judgment should be reversed without remandment on the ground that the plaintiff’s testimony at the trial directly contradicted the statements made by her in her deposition. The statements in the deposition constitute admissions and are admissible against the plaintiff as direct substantive evidence. (Guthrie v. Van Hyfte, 36 Ill.2d 252, 222 N.E.2d 492; Felker v. Bartelme, 124 Ill.App.2d 43, 260 N.E.2d 74.) Such admissions however are not conclusive as a matter of law and must be considered together with all the other evidence presented. (Guthrie v. Van Hyfte, supra; Korleski v. Needham, 77 Ill.App.2d 328, 222 N.E.2d 334; Hurley v. Phillips, 54 Ill.App.2d 386, 203 N.E.2d 431.) There are several recent Illinois cases which adopt what may appear to be a contrary rule. These were in summary judgment proceedings involving deliberate and unequivocal admissions of a party under oath, which the court held to be conclusive. That rule is an expression of a judicial policy aimed at eliminating the temptation to commit perjury. (Meier v. Pocius, 17 Ill.App.2d 332, 150 N.E.2d 215; Burnley v. Moore, 41 Ill.App.2d 156, 190 N.E.2d 141; Fountaine v. Hadlock, 270 N.E.2d 222.) Moreover, on a motion for summary judgment the court is required to rule as to the existence of a “genuine” issue of material fact. (Ill. Rev. Stat. 1969, ch. 110, par. 57.) In the instant case no motion for summary judgment was made by defendant. Although plaintiff’s claim against defendant is not barred by the admissions contained in her deposition, those admissions will be a proper factor for the jury to consider in determining its verdict.

Defendant next contends that the trial court erred in restricting the cross-examination of plaintiff and her doctor. After plaintiff was called as a witness under section 60, the trial court did not permit cross-examination by the defendant with respect to tire manner in which the cab was operated immediately before the accident. Only a short time elapsed between the time plaintiff entered the cab and the collision at 47th and State Streets. During that period, according to plaintiff’s deposition, the cab driver “was in an awful hurry,” ran a red light one block before the accident and apparently was eating and driving simultaneously. Such a course of conduct by the driver is material on the issue of negligence at the time of impact and it was error for the trial court to restrict the testimony as to what occurred at the precise point of impact.

Further error in the restriction of evidence occurred in the examination of plaintiffs doctor. He had testified that he took plaintiff’s history at the time she came to him for treatment. On cross-examination he was asked to read the first sentence of the history taken at his initial inter-view with plaintiff.

“DR. BARNETT: Hurt in accident when cab hit another car at 47th and State on July 26,1963. Ran a red light.
MR. PILDES [defense counsel]: Now, Dr. Barnett, did Mrs. DuPree tell you which car went through the red light?
MR. FELDMAN [plaintiff’s counsel]: Object, Your Honor.
THE COURT: He read the notes. The jury heard it.
MR. PILDES: Well, Your Honor, I have asked him to take a look at his notes and take a look at what Mrs. DuPree said. He has taken down sketchy notes and perhaps he can elaborate.
THE COURT: Counsel, don’t make speeches at this time. There was an objection. I sustained it. Go on with something else.”

Apparently the court limited further examination on this point in the mistaken belief that the doctor’s notes were the best evidence of what was said and that other testimony with respect thereto was inadmissible. How the court reached such a conclusion is difficult to understand since on three earlier occasions, during the doctor’s direct examination, the court allowed him to refresh his recollection from the medical records he had prepared in the course of treatment of plaintiff. The Best Evidence Rule requires that a disputed fact be proved by the best evidence obtainable under the circumstances. (Young v. Ebersohl, 328 Ill. 273, 159 N.E. 235.) That rule is generally applied to documentary evidence only and merely requires that the original of a document be produced or its absence accounted for. Wagner v. Chicago, Rock Island and Pacific RR. Co., 277 Ill. 114, 115 N.E. 201. The fact that Dr. Barnett may have recorded notes his conversation with the plaintiff and prepared a history therefrom does not render that history a document nor does it foreclose inquiry as to any independent recollection the witness may have of events referred to in the notes. See Ill. Rev. Stat. 1969, ch. 51, par. 5.1.

With respect to point 3, we hold that if judgment is rendered against defendant, there should be deducted therefrom the amount paid by the Yellow Cab Company for a covenant not to sue.

The judgment is reversed and the cause is remanded with directions to grant defendant a new trial and for such other and further proceedings as are not inconsistent with the view herein expressed.

Reversed and remanded, with directions.

ENGLISH, P. J. and LORENZ, J., concur.