author: EBERSPACHER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald G. Grigsby, Defendant-Appellant.
    Gen. No. 10,744.
    Fourth District.
    September 26, 1966.
    Rehearing denied October 18, 1966.
    John W. Curren and Thomas F. Londrigan, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Richard A. Hollis, of counsel), for appellee.
   EBERSPACHER, J.

The sole question in this appeal is whether a sentence of not less than 5 nor more than 15 years in the penitentiary, following a plea of guilty to a charge of burglary with intent to commit a theft, is excessive.

The offense allegedly occurred in the early morning hours of January 28, 1965, in a building of Gainer Mills, a former employer of this 27-year-old defendant. He was arrested in the building after the clean-up man discovered the door forced open and phoned the police. He had in his possession a screwdriver, flashlight and pair of pliers; was not armed and no merchandise was taken. His car was found parked nearby.

Upon entering his plea he made application for probation. At the hearing on probation held on October 18, 1965, an employee of Gainer Mills, who had previously hired defendant, testified that the damage to the forced door was $117.62 and that it was his opinion that neither defendant nor his attorney should ask for probation. A police officer who had investigated the crime testified as to the details of the offense, that defendant had not been drinking, and made no recommendation concerning probation. A detective from the police department who had known defendant by sight for a “couple” of years recommended that defendant not be given probation. He was then asked for what reasons to which he replied that Defendant was involved in an investigation involving defendant’s part in a holdup in Morgan County on August 11, 1965, whereupon defendant’s attorney objected to evidence of anything after this occurrence because defendant had not been tried on such offense. The prosecutor urged that evidence of the August 11th occurrence was admissible to show defendant’s activities since the arrest in the present case, and that the witness should have an opportunity to explain his recommendation. After the court twice stated that for such limited purpose the evidence would be proper, defendant’s attorney agreed to its use for that limited purpose. The witness then recited that defendant was found by a police officer lying in the trunk of a car driven by another man, and that in the trunk were two loaded pistols and a large sum of money. He also testified that on that night defendant had on his person a driver’s license of a party of the same surname whom the witness understood might be a cousin and that it was reported to him that defendant had been using this driver’s license while his own was either suspended or revoked. The witness appeared to have no personal knowledge of the occurrences about which he testified.

The prosecutor next called defendant’s wife who testified that she had no recommendation to make regarding probation whereupon she was asked about being the victim of a beating by defendant on September 13, 1965, which resulted in her being hospitalized, that a few days later she returned to defendant who then threatened her life with a gun, and then cocked it and shot it out the window, and that she had previous to that occasion been hospitalized as a result of beatings by defendant, one of which was in December of 1964. Defendant’s wife’s mother testified that defendant had threatened both her and her daughter during telephone calls to her, that she •had taken the wife of defendant into her home and to the hospital after various beatings, including the one on September 13, 1965, and that she did not recommend probation.

Defendant presented no evidence in support of his petition for probation and the cause was continued on the court’s motion to November 3rd.

On October 28, 1965, while the defendant was in jail on other charges alleged to have occurred on the previous day, the prosecutor filed a motion to increase bail from $3,000 to $25,000, alleging therein that a report of the probation officer recommending that probation be denied was on file, that defendant had been charged with the aggravated battery and attempted murder of two men in Springfield on the previous day, and that defendant had been indicted in Morgan County and was to have appeared for arraignment in Morgan County on the previous day. Defendant’s attorney was advised of this motion by telephone by the prosecutor’s office, and stated that he would appear if defendant requested him to appear. Defendant was brought before the court without his attorney, the bail was increased to $25,000, and defendant remanded to the custody of the sheriff. On the following day defendant’s attorneys filed their motion to vacate the increase of the bail, pointing out that the statutory notice had not been given, that the application for increase of bail had not been verified, that the application failed to state facts or circumstances which either constituted a breach or a threatened breach of the conditions of the bail bond previously furnished. On the same day defendant’s attorneys filed a motion for a two-week continuance of the hearing on defendant’s motion for probation wherein they stated that defendant was in custody, could not make bail and that preliminary matters on separate charges of different offenses, adversely affected his right to probation and that until he was given a preliminary hearing, he was severely handicapped and prejudiced in presentation of evidence to support his probation as well as in gathering evidence in mitigation. The motion to vacate the increase of bond was denied.

On November 1 the motion for continuance was renewed, at which time the court was advised that the preliminary hearing on the aggravated battery and attempted murder charge would be held within the next day, and the motion denied. Upon a motion to defer sentencing the court asked the defendant to produce his evidence on the probation application, defendant rested without presenting any evidence, and the court advised that it would rule on the probation matter and the matter of sentencing on November 5th. On November 2, on oral motion of defendant’s attorneys, bond was reduced to $10,000 and defendant was released from custody upon posting bond approved by the court.

On November 23 the cause was called for hearing on the petition for probation, a motion to file affidavits on behalf of defendant was taken under advisement, bond was increased to $25,000, defendant was remanded to the custody of the sheriff upon failure to post bond, and the cause was continued to November 26. On that date, defendant moved for a change of venue prior to sentencing on the theory the defendant had received adverse publicity in this proceeding concerning more serious charges and that as a result the sentence which he would receive would not be commensurate with the acts to which he had entered his plea of guilty. The motion was denied, whereupon the prosecution moved that the evidence heard on the petition for probation be considered in mitigation and aggravation. To this defendant objected, particularly objecting to the testimony of defendant’s wife being used. The court held that the evidence of defendant’s wife was to be excluded, and the remainder of the evidence from the probation hearing would be used. Neither the People nor defendant presented any evidence, and after hearing defendant’s attorney, the People urged that in imposing sentence the court take into consideration the evidence presented on the probation hearing and pointed out that the court was entitled to receive evidence as to moral character, life, family, occupation, and criminal record of the offender and may consider such evidence in mitigation and aggravation; further arguing that the court was not limited strictly to only the facts of the offense itself, but must necessarily include other factors and evidence, which had come to the court’s attention. The prosecutor then recited that the court should not consider the aggravated battery and attempted murder charges, and that the State’s Attorney recommended a sentence of not less than 10 nor more than 20 years. Thereupon the court sentenced defendant to not less than 5 nor more than 15 years in the penitentiary.

On December 3, 1965, defendant’s attorneys filed a motion for reduction of sentence pointing out that the only matters in aggravation properly presented had been the circumstances surrounding the burglary to which he had pled, and the testimony of his wife’s mother that he was cruel and abusive to his wife and not deserving of probation. The motion further pointed out that, although the State had agreed that evidence of other unrelated charges was to be excluded in determining sentence, they had been injected into this case as a basis for increasing bond, and that the court gave credence to such charges in increasing the bond. The motion was accompanied by the affidavit of a business acquaintance and a former employer, to the effect that defendant was a conscientious and trustworthy employee, and to their knowledge had never caused any trouble.

On November 8th, the motion was heard and taken under advisement, the prosecutor having orally moved that the motion be dismissed. On the same date defendant moved that a previous order forfeiting bond be vacated. Such order was entered. The motion to dismiss the motion of reduction of sentence was filed on December 8, and was allowed on December 10th, at which time sentence was reaffirmed.

The People have filed in this court a Motion to Suggest Diminution of the Record which has been taken with the case. The motion states that the record is incomplete in that it does not contain the report of the probation officer and certain proceedings had on November 5th, and that the Clerk of the Court inadvertently omitted them from this record. Defendant has filed objections thereto pointing out he has filed no designation of portions of the trial court record to be included, and that the portions constituting the record on appeal are specifically enumerated by Supreme Court Rule 27(8), and do not include the probation report; further that the report of the probation officer, although marked filed on September 30, 1965, was not available as a part of the files prior to sentence and was not made available to defendant or his counsel; that the People did not request that the court consider the information in the probation report as a matter in aggravation, and if they had, objecting would have been forthcoming with a request for disclosure. Further pointing out that section 1-7 (g) (supra) prescribes what evidence the court shall consider in determining sentence, and that by virtue of section 204-4 of chapter 38 such report is designed to confidentially advise the court as to the suitability of a defendant for probation, and not as a presentencing report; that defendant has not raised the issue of denial of probation in this appeal; and further that the suggested diminutions, are “accretions” and that any additional portions desired to be designated by the State as a part of this record should have been so designated to the clerk of the trial court in accordance with Rule 27 (8) 11.

We agree with the contentions of defendant as set out in his objections and accordingly deny the motion suggesting diminution of the record. Upon its review, we can only conclude that the motive for its presentation is consistent with the prosecutor’s efforts as shown by this record to prejudice those charged with the responsibility of determining dispassionately and objectively, what sentence should be imposed.

In People v. Riley, 376 Ill 364, 33 NE2d 872, at a hearing in aggravation and mitigation the Assistant State’s Attorney read into the record previous arrests not followed by convictions. The Supreme Court at pages 367, 368 said:

“On a hearing of this kind the prosecutor is under both a legal and moral duty not to offer anything for the consideration of the trial judge which may be of doubtful competency and materiality. On this kind of a hearing the attorneys must be held accountable for the highest ethical standards and if it can be seen that a breach of such standards has prejudiced a defendant it must be expected that any sentence so attained will be set aside.”

and continuing at page 369:

“Obviously the trial judge owes the same duty to the defendant to protect his own mind from the possible prejudicial effect of incompetent evidence that he would owe in protecting a jury from the same contaminating influence. The prosecutor in such circumstances owes the duty of not only protecting the defendant but also the judge from such prejudicial matter.”

Unfortunately we are unable, in this case, to say that the prosecutor fulfilled his duty toward either the defendant, or the court. By the motion to use the evidence taken in the hearing on the application for probation, as the evidence in aggravation, the People succeeded in doing that which they could not have done in a separate hearing in aggravation and mitigation. By their representations to the court as to the necessity to increase bond in this case, while Defendant was in custody on bond of $15,000 which he was unable to make, on charges on which he had not been convicted, the People were able to bring to the attention of the court and keep before the court, the impression that defendant was a habitual felon; which is not supported by this record. By their showing, over objection, the details of a crime allegedly committed, after the plea of guilty in this case, in a neighboring county, they invited the court to also take that matter into consideration as aggravation in the present case. That the court gave credence to such ungrounded allegations is reflected by its action on the defendant’s bond.

The People urge here, that since the sentence is within the limits prescribed by the Legislature for burglary, and the sentence is less than the recommendation of the prosecutor that this sentence should not be disturbed. We are aware of the admonition of our Supreme Court in People v. Taylor, 33 Ill2d 417, 211 NE2d 673, in which, at page 424, the court said:

“We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill Rev Stats 1963, chap 38, par 121-9 (b) (4), such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

Here the procedure followed, initiated by the prosecutor deprived the trial judge of that “superior opportunity” to make a sound determination concerning punishment. The prosecutor’s lip service that incompetent matters which he had brought to the court’s attention should not be considered by the court in sentencing, by their repetition, only served to aggravate the situation; particularly when accompanied by a recommendation of 10 to 20 years in this case.

We have no doubt that the authorities in Morgan County will perform their duties, and are competent to adequately prosecute this defendant on any charges that might have arisen in that county; but this defendant was clothed with a presumption of innocence of those charges, just as he was clothed with a presumption of innocence of the aggravated assault and attempted murder charges which were dismissed for lack of probable cause, and under the circumstances here we cannot assume that both the direct and indirect evidence of them presented to the court was not prejudicial. Evidence incompetent in a hearing in aggravation and mitigation, along with evidence of serious charges which were dismissed for lack of probable cause was heard by, and all proceedings were held before, one particular judge who ultimately assumed the responsibility for determining the adequate sentence. No effort was made to protect him from the prejudicial matter, as required by People v. Riley (supra), a case decided twenty-five years ago, before the United States Supreme Court laid down the guidelines which have required a more careful consideration of the legal rights of both the guilty and those charged. The trial court, in his discretion, did not avail himself of the opportunity, to allow a judge who had not been subjected to incompetent evidence in aggravation, to determine the punishment to fit the crime.

In Illinois the offense of burglary is defined by statute (c 38, § 19-1), which supersedes the common law elements. People v. Maffioli, 406 Ill 315, 94 NE2d 191. Under our statute felonious intent is not required, if the defendant intended to commit a theft or larceny. Therefore, one who illegally enters another’s property with intent to commit a petty theft is equally guilty with another who makes the same entry by force with intent to murder, kidnap or rape. This explains the indeterminate nature of the possible penalty under this section. However, this does not cloak the trial court with unrestricted authority to impose a sentence disproportionate with the type of offense shown by the varying facts in each case. Burglary by statutory definition now encompasses the most innocuous offenses together with the most aggravated. Considerably more care must be given in reviewing a sentence under this section. It requires more than a determination of whether the sentence falls within the statutory limitation or the recommendation of the prosecutor. The statutory limit is indeterminate, and the indeterminate nature of the maximum penalty was obviously designed to allow a court to make a punishment fit the crime, but not to authorize any sentence under any circumstances.

In the present case, we determine from the record that competent evidence offered by the People in aggravation would show that a forcible entry had been made into the building in which defendant was apprehended at which time he had on his person a screwdriver, pliers and flashlight, and that his car was parked near the scene; further that he had been physically abusive to his wife, and that he had threatened his wife and mother-in-law. There was also competent evidence that defendant was not armed and that nothing was stolen from the burglarized premises ; and was a first offender 27 years of age.

On that evidence and defendant’s plea of guilt, the trial judge was confronted with determining whether justice required a minimum of 1 year, or whether justice coupled with the welfare of society, the determent to crime, and the possible rehabilitation of defendant required a greater minimum sentence. In Illinois, the Criminal Code has adopted a method of review of sentencing. Ill Rev Stats 1965, c 38, § 121-9 (b) (4). We are mindful that the trial judge has' a “superior opportunity” to make a sound determination concerning punishment, to that of appellate tribunals, People v. Taylor (supra), however a “superior opportunity,” on the basis of the record in this case and the sentence imposed, does not imply a just and equitable sentence. To countenance the sentence in this case would emasculate the obvious intent and policy of the statute providing for review and reduction of sentence.

For the foregoing reasons the judgment and sentence of the Circuit Court of Sangamon County are modified to provide that the sentence imposed on defendant be reduced to provide confinement in the Illinois State Penitentiary for a period of not less than two years nor more than five years. As so modified, the judgment of the Circuit Court of Sangamon County is affirmed and the cause remanded with directions that a mittimus issue in conformance with this opinion.

The judgment is modified and affirmed and the cause is remanded with directions.

GOLDENHERSH, P. J. and MORAN, J., concur.

       Ch 38, § 110-6 111 Rev Stats 1965, Reduction or Increase of Bail.
      (a) Upon application by the State or the defendant the court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of bail bond.
      (b) Reasonable notice of such application by the defendant shall be given to the State.
      (c) Reasonable notice of such application by the State shall be given to the defendant, except as provided in subsection (d).
      (d) Upon verified application by the State stating facts or circumstances constituting a breach or a threatened breach of any of the conditions of the bail bond the court may issue a warrant commanding any peace officer to bring the defendant without unnecessary delay before the court for a hearing on the matters set forth in the application. At the conclusion of the hearing the court may enter an order authorized by subsection (a).

       In the interim the charges of aggravated assault and attempted murder had been dismissed for lack of probable cause.

       On November 26, the court recited that the application for probation had been denied, although the record does not show any specific pronouncement to that effect on November 23rd or 26th.

       According to the record defendant had no record of any previous conviction. Ch 38, § 1 — 7(g) provides, “For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

       The duties of the probation officer shall be (4): “To preserve complete and accurate records of cases investigated, including a description of the person investigated, the action of the court with respect to his case and his probation, the subsequent history of such person, if he becomes a probationer, during the continuance of his probation, which records shall be open to inspection by any judge or by any probation officer pursuant to order of the court, but shall not be a public record, and its contents shall not be divulged otherwise than as above provided, except upon order of the court”.


source: Caselaw Access Project

author: HOFFMAN, J.

license: Public Domain

text:
    People of the State of Illinois, ex rel. Edward Henderson, et al., Plaintiffs-Appellees, v. Hal Redfern, Board of Supervisors of Macoupin County, Illinois, and W. J. Payes, Jr., Director of Department of Public Works and Buildings, Defendants, Hal Redfern, Defendant-Appellant.
    Gen. Nos. 10,740 and 10,755.
    Fourth District.
    September 26, 1966.
    Rehearing denied October 18, 1966.

      Phelps, Russell & Boyle, of Carlinville (John W. Russell, of counsel), for appellant.
    McGrady & Madden, of Gillespie (D. A. McGrady, of counsel), and Thomas P. Carmody, State’s Attorney, of Carlinville, for appellees.
   HOFFMAN, J.

This is a proceeding in quo warranto, wherein the right of the defendant Redfern to hold the office of Macoupin County Superintendent of Highways is being questioned. This cause has been here before. (People ex rel. Henderson v. Redfern, 48 Ill App2d 100, 197 NE2d 841.)

The statute pertaining to the appointment of a County Superintendent of Highways provides that it shall be made by the County Board of Supervisors. Ill Rev Stats 1965, chap 121, Div 2, § 5-201. However, the qualifications of an applicant are prescribed by rules and regulations promulgated by the State Department of Public Works and Buildings, chap 121, Div 1, § 4-101.2, and the statute requires that the Department shall determine if an' applicant meets these qualifications. Chap 121, Div 2, § 5-201.

The defendant was appointed County Superintendent of Highways by the Board of Supervisors of Macoupin County after he had submitted his qualifications through a questionnaire to the Department of Public Works and Buildings, and had, pursuant to the questionnaire submitted, been certified by the Department to be eligible.

The amended complaint in quo warranto expressly set forth the grounds upon which defendant’s right to office was being challenged. Such grounds were that defendant knew that he did not possess the required qualifications for the office, and that he made a false and fraudulent application to the Department of Public Works and Buildings to conceal the disqualification. The State’s Attorney of Macoupin County joined in the suit by filing an intervening petition praying that defendant show by what right he claimed to hold the office.

The defendant, answering both the amended complaint and the intervening petition, sought to justify his appointment, but in his plea did not see fit to attach a copy of the questionnaire, containing the Department’s questions and his answers thereto, which had been submitted by him to the Department. He insisted that the courts have no right to go behind the administrative conclusion of eligibility, and may not question an administrative finding, in a quo warranto proceeding.

In the first review of this case in this court, it was held that “the questionnaire was the determinative document upon which the Department made its finding of eligibility and it should have been included in any plea of justification.” The case was accordingly remanded for pertinent amendment to pleadings and for trial of the issue presented.

Upon return to the Circuit Court, the defendant moved, and was allowed, to amend his pleadings by withdrawing his answer to the amended complaint and intervening petition. He then took the position that this resulted in no issue being presented, and filed a motion for judgment on the pleadings. To this motion he attached the various documents and orders upon which he previously relied for his appointment, plus the questionnaire submitted to the Department which he had been ordered to plead by this court in its first opinion.

This defense motion was denied and defendant was ordered to answer. He failed to answer, and, instead, appealed to this court from the denial of his motion. This obviously was an unappealable order and the appeal was dismissed. Defendant again presented a motion for judgment on the pleadings, this time arguing that his previous motion with its attachments was his plea in justification. This motion was again denied and the defendant again ordered to answer. He then filed another motion to dismiss the amended complaint. For a third time defendant was ordered to answer. He did not answer, but filed further motions, one even asked for instructions, and attempted another appeal to this court from one of the interlocutory rulings.

Finally, after a year of repeated delays, all brought about by defendant’s repetitive filing of motions, attempted appeals of interlocutory and unappealable orders, and refusal to answer or plead, the trial court allowed plaintiff’s motion for judgment on the pleadings and entered an order of ouster. From this order, this appeal followed.

The statute (Ill Rev Stats c 112, § 11) provides that a complaint in quo warranto may either set forth, expressly, the grounds for an attack on the defendant’s claimed right, or, the complaint may be laid in general terms. If the complaint generally calls upon the defendant to show his claim, he must, by answer, disclaim or justify. If he seeks to justify, he must plead all of the facts by which he establishes a valid title, including the meeting of all conditions precedent to the holding of the office. People ex rel. Phelps v. Kerstein, 413 Ill 333, 339, 108 NE2d 915. However, if the complaint sets forth express grounds for challenge to the defendant, the answer need not justify (which is a complete step by step proof), but need only meet the challenged points. People ex rel. Koch v. Wilson, 346 Ill App 175, 179, 104 NE2d 559.

The plaintiff in quo warranto is not required to allege or set out any facts showing that the challenged act is unlawful. It is enough to allege the exercise of the right without lawful authority. And, as stated above, such allegation may be by general charge of usurpation or by complaint of a specific illegal step in the obtaining of the office. Thus, no issues of fact are tendered by the complaint. It simply calls upon the defendant to show, either completely or specifically, by what authority he acts. The issues are created by the answer of the defendant. The burden is never upon the plaintiff to show defendant’s failure. It is always upon the defendant to prove facts which either justify his office, or answer the specified charge made against him. People v. Lewistown Community High School Dist. No. 241, 388 Ill 78, 86, 87, 57 NE2d 486; People ex rel. Phelps v. Kerstein, 413 Ill 333, 336, 108 NE2d 915.

The statute provided that the provisions of the Civil Practice Act apply to quo warranto proceedings. Ill Rev Stats chap 112, § 15.

In the instant case the amended complaint sets forth express grounds upon which defendant’s right to his office was attacked. The intervening petition challenged the office in general terms. It became necessary for defendant, upon the denial of his preliminary motions, to answer the charges, expressly, so far as the complaint was concerned, and by justification, so far as the intervening petition was concerned. The attaching of justifying papers to the motion of dismissal was not an answer, or a plea, to either the complaint or intervening petition. Ill Rev Stats, chap 110, § 33; Christo v. Nichola, 183 Ill App 486, 488. Only by a proper pleading are the issues created from which the trial proceeds. Warnes v. Champaign County Seed Co., 5 Ill App2d 151, 156, 124 NE2d 695.

In an almost parallel situation, the Supreme Court has ruled that where a defendant withdraws his plea (as was done here) he is in default, and the people are entitled to a judgment of ouster. People v. O’Connor, 239 Ill 272, 277, 87 NE 1016.

The instant case has been pending since 1962. Innumerable hearings of motions and appeals have been held — all because of defendant’s studious and ingenious avoidance of the issues, and his repeated refusals to create triable issues of fact. The court below properly found that the defendant had been given ample opportunity to answer the charges. The court was plainly justified in concluding that defendant stood in defiance of the orderly administration of justice. As in the earlier case cited, the defendant by the withdrawal of his plea and persistent refusal to answer the charges, stood in default. The order of ouster appealed from was properly entered, and it is affirmed.

Affirmed.

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


author: CRAVEN, J.

text:
    Lawrence J. Hires, Plaintiff-Counter Defendant-Appellee, and M. C. Slater, Inc., a Corporation, Defendant-Appellee, v. Dale S. Price and Agricultural Transportation Association, Defendants-Appellants, and Freeman Vaughn, Defendant-Counter Plaintiff-Appellant.
    Gen. No. 10,716.
    Fourth District.
    September 26, 1966.

      Costigan & Wollrab, of Bloomington (William F. Costigan, of counsel), for appellant.
    Smith & Satter, of Pontiac (John G. Satter, Jr., of counsel), for appellee.
   CRAVEN, J.

This suit was originally brought by Lawrence J. Hires, as plaintiff, against Dale S. Price, Freeman Vaughn and Agricultural Transportation Association. The plaintiff was the operator of a tractor-trailer unit that collided with another tractor-trailer unit, driven by the defendant Price, at the intersection of Routes 66 and 47 in Livingston County, Illinois. The unit driven by the defendant Price was owned by the defendant Freeman Vaughn and under lease to the defendant Agricultural Transportation Association. The defendant Vaughn counterclaimed for property damage against Hires and M. C. Slater, Inc., who had the Hires’ unit under lease. The jury found for the plaintiff Hires against all the defendants and also in favor of all counterdefendants on the property damage claim of the defendant-counterplaintiff, Freeman Vaughn.

The defendant contends as error:

1. That plaintiff was guilty of contributory negligence as a matter of law and that the trial court should have granted judgment notwithstanding the verdict;
2. That ch 95%, sec 198b, Ill Rev Stats 1963, requiring certain prescribed rest periods for operators of second-class motor vehicles, is not applicable to this case;
3. That the plaintiff’s attorney engaged in prejudicial conduct concerning certain inadmissible testimony and argument to the jury.

The undisputed facts show that the plaintiff was approaching the intersection, traveling west on Route 66, and that the defendant was approaching the intersection, traveling south on Route 47. There were traffic signals at the intersection. The weather was clear and the intersection had no obstructions to the view of approaching vehicles. All other material facts are in dispute.

In substance, the plaintiff produced the following witnesses and testimony.

Dale Price: The defendant was called as an adverse witness under section 60 of the Practice Act. He testified that he was traveling south on Route 47 when he struck a truck driven by the plaintiff, Lawrence Hires, at the intersection of Route 47 and Route 66. He stated he first saw the plaintiff’s vehicle 200-300 feet from the intersection as it was traveling west on Route 66. Although the witness could not estimate the speed of the plaintiff’s truck, he stated his truck was traveling between 30 and 35 mph. At this time, the witness stated the light for traffic on Route 47 was red and that it later changed to amber and then green when he was about 100 feet away from the intersection. He recalled the collision as occurring in the northwest quadrant of the intersection.

The defendant also testified he kept a log of his trip to and from Dalbo, Minnesota, and related his hours of travel and rest.

Freeman Vaughn: The codefendant and owner of the tractor-trailer unit was also called as a section 60 witness. He stated he owned the tractor-trailer driven by Dale Price and that it was leased to the Agricultural Transportation Association. He testified that he went to the scene of the accident, but did not talk to John Tomachevsky and did not contact him by telephone.

John Tomachevsky: This witness testified that he was traveling behind three trucks on Route 66, approaching the intersection from the east. He stated that he moved into the passing lane approximately 175-180 feet from the intersection. The witness stated he saw the accident occur. At the time of the collision the light was green for traffic on Route 66. He further testified that a small truck, traveling in the opposite direction on Route 66, was attempting a left turn through approaching traffic.

The witness then attempted to testify that he had been contacted by telephone several times by the defendant Freeman Vaughn. He stated that he was asked to change his story and that all the calls were threatening. The testimony was objected to and finally stricken because of an inability of the witness to identify the voice of the alleged telephone caller. The court then ordered a 10-minute recess. Upon resumption of proceedings, John Tomachevsky was recalled and the defendant was asked the following question and made the following answer:

“Q. Mr. Tomachevsky, during the last fifteen minutes have you had occasion to hear the voice of this man sitting with the pencil in his hand, Mr. Freeman Vaughn?
“A. I just did when he put his cigar down. It was the same voice I heard over the telephone.”

The court held this foundation to be insufficient and excluded further testimony concerning the telephone calls.

Suzanne Zusehlag: This witness identified herself as the sister of John Tomachevsky and attempted to testify to similar threatening calls she had received in her brother’s behalf. Her testimony was also excluded for lack of foundation in identifying the caller.

Lawrence Hires: The plaintiff testified that the traffic lights changed from red to green as he approached within 200-300 feet of the intersection. At this time he had shifted into low gear and was traveling about 30 mph. He then began to pick up speed until he noticed a truck, traveling east on Route 66, move into the intersection, blocking both lanes of eastbound traffic. The “green” truck then began to move north across the intersection, at which time the plaintiff applied his brakes. He further testified that he was within a few feet of the intersection when he applied his brakes and that he had not looked to his right or seen the defendant’s truck prior to the collision.

Milo Olson: The investigating state trooper testified that the sequence of lights at the intersection is green— to yellow — to red — and red to green. He stated, on cross-examination, that the plaintiff, Mr. Hires, told him at the hospital that the traffic signal for Route 66 was yellow and that the defendant, Mr. Price, told him the traffic signal for Route 47 was green.

The defendant produced the following evidence:

A1 Fritz: The witness testified that he was driving his truck on Route 47, going north. He stated that he stopped for a red light at the intersection of Routes 47 and 66. He then testified that he started to cross the intersection as the light changed to green. He stated that he saw the plaintiff’s truck approaching from the east on Route 66. The witness stated that the light was still green for traffic on Route 66 when the accident occurred.

Freeman Vaughn: The defendant was called as a witness to testify as to the damage done his vehicle and as to his loss as a result of the collision.

The defendant argues that the plaintiff was guilty of contributory negligence as a matter of law and prays that this court reverse the jury’s verdict and enter judgment for the defendant. He argues this point and expressly relies upon the case of Ferno v. Brown, 14 Ill App2d 507, 145 NE2d 91 (1957), which is similar on its facts to the case at bar. The Appellate Court, in reversing a judgment for the plaintiff and remanding for a new trial, stated at 511, 512 (145 NE2d at 93):

“In the instant case plaintiff’s evidence fails to show that he was in the exercise of reasonable care, and affirmatively shows that he was guilty of negligence which contributed to cause the collision and resultant damage to his car. It is our duty to reverse a judgment if, from a consideration of the record, we conclude that the judgment appealed from is against the manifest weight of the evidence . . . (citing cases).”

While a new trial may be granted if a judgment is against the manifest weight of the evidence, we know of no other case holding a court of review to be empowered to enter judgment without remandment solely by determining that the verdict was against the manifest weight of the evidence.

As early as 1924, the Illinois Supreme Court clearly defined when a case may be reversed without remandment without infringement upon the constitutional right of trial by jury. In Mirich v. T. J. Forschner Contracting Co., 312 Ill 343, 355, 356 (143 NE 846), the court said:

“. . . The Supreme Court of the United States said in the early case of Parsons v. Bedford, 3 Pet 433 [32 Pet (3 US) 433, 7 L Ed 732], that the right of trial by jury was dear to the American people; that one of the strongest objections to the adoption of the constitution was the want of a provision securing the right of trial by jury in civil cases, and that as soon as the constitution was adopted that right was secured by the adoption of the seventh amendment. Much has been said in decisions of courts and by law writers on the importance and sacredness of the right of trial by jury; but that is recognized by every American and needs no discussion here. . . .
“It must, we think, be accepted as settled law that a trial court has no power, when a jury is not waived, to determine the weight and preponderance of conflicting evidence introduced to establish or disprove the facts. The decisions are numerous, and are uniform, that the trial judge is never authorized to take a case from the jury where there is legitimate evidence tending to prove the cause of action. When a motion is made to direct a verdict it is not the province of the trial court to weigh and determine the preponderance of the testimony. This court has held in many cases that such a motion raises a question of law, and the function of the trial court is limited strictly to determining whether there is or is not evidence legally tending to prove the fact alleged. If there is such evidence the case must be submitted to the jury even though the greater weight of the evidence may seem to the court to be on the side of the other party. It has always been recognized that for a trial court to weigh and determine conflicting evidence and direct the jury what verdict to render would be a direct violation of the constitutional right of trial by jury. The parties are entitled, under the constitution, to have the facts passed on by a jury.” . . .

Recently, the wisdom of this rule was discussed in both a majority and dissenting opinion in Mesich v. Austin, 70 Ill App2d 334, 217 NE2d 574 (1966).

The prerogative of weighing the evidence, suggested in this appeal, is not ours. The law is clear, and its constitutional and historical origins cannot be outweighed by contemporary considerations. Balancing and determining the manifest weight of the evidence, as related to issues of negligence and contributory negligence, are duties of the trier of fact.

“It is well settled that where' there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because the facts being undisputed, fair minded men will honestly draw different conclusions from them.” Richmond & D. R. Co. v. Powers, 149 US 43, 45. (Emphasis added.)

This is a close case on its facts and a jury verdict for the defendant would also be sustainable. We cannot say that this verdict is against the manifest weight of the evidence.

Where, however, as here, there is a closely balanced case, we must determine whether any of the other alleged errors properly preserved are so prejudicial as to require a new trial.

In this connection, we are concerned with the repeated attempts by plaintiff’s counsel, improperly, to introduce prejudicial testimony to the jury — this in connection with the effort to establish alleged threats to the witness Tomachevsky. Neither this witness nor his sister, Mrs. Zuschlag, could make a proper identification. The substance of the calls and the stated identity of the caller are purely hearsay, unless this matter can be established by admissions of a party. No identification of the caller’s voice could be made and, at the time of the trial, the court properly held the then attempted identification to be insufficient.

The Illinois rule is liberal enough to allow identification of the voice after the telephone call. People v. Nichols, 378 Ill 487, 38 NE2d 766 (1942). This rule, however, has not been extended to include a disavowal of recognition followed by a claim of recognition based upon fragmented utterances as here involved.

Despite the court’s ruling on the exclusion of this evidence, plaintiff’s counsel, by persistent attempts, was able to convey to the jury both .the substance of the call and the identity of the caller. This was first done by calling the defendant as a section 60 witness and requiring him to deny making such a call. The subsequent testimony by the witness Tomachevsky, even though stricken, was extremely damaging to the defendant. If a proper foundation were laid it would have properly detracted from the credibility of the defendant by impeaching his earlier testimony through a prior inconsistent statement and also as a damaging admission. However, the damaging effect of this testimony was felt despite the court’s ruling.

Where persistent attempts are made, in the presence of the jury, to introduce the substance of testimony which has properly been ruled inadmissible, error is committed. Bishop v. Chicago Junction Ry., 289 Ill 63,124 NE 312 (1919); Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348 (1954). Where the evidence is closely balanced or merely preponderates in one party’s favor, such error requires a new trial. Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill 180, 37 NE2d 801 (1941).

In view of this conclusion, it is unnecessary to consider other errors assigned by the appellant. For the reasons stated, this cause must be reversed and remanded to the circuit court of Livingston County for a new trial.

Reversed and remanded for a new trial.

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


author: SMITH, J.

text:
    Texico State Bank, a Corporation, Plaintiff-Appellant, v. E. U. Hullinger, Defendant-Appellee.
    Gen. No. 10,733.
    Fourth District.
    September 26, 1966.

      Herrick, Rudasill & Moss, of Clinton (Ray Moss, of counsel), and Kirk & Musick, of Mt. Vernon, for appellant.
    Costigan & Wollrab, of Bloomington (Guy C. Fraker, of counsel), for appellee.
   SMITH, J.

Plaintiff bank appeals from a judgment in its favor for $3,600 based on two checks, one for $3,500 and one for $3,000, issued by the defendant to one Sledge. Plaintiff contends it was a holder in due course of the two checks, that the jury verdict should have been $6,500, and that the court erred in denying its motion for an additur or in the alternative for a new trial on the issue of damages only. As we view it, the relevant facts are not in dispute.

On June 2, 1964, defendant Hullinger executed and delivered to one Walter Sledge his two checks for $3,500 and $3,000. Sledge took the $3,500 check to his bank, plaintiff bank, and obtained a bank draft for it. On the next day, June 3, he took the $3,000 check to plaintiff bank and received a bank draft for $2,400 and deposit credit for $600. On the next day, June 4, defendant stopped payment on both checks and the usual merry-go-round developed. The bank drafts delivered to Sledge by the plaintiff bank entered the ebb and flow of commerce, were in the hands of holders in due course, and the plaintiff bank was required to and did honor its drafts. The demands on the defendant to honor his checks were refused.

We find it difficult to understand why plaintiff is not a holder in due course of the defendant’s checks and why there was any issue for a jury to try in this case. Ill Rev Stats 1965, ch 26, § § 3-302 to 3-305, defines a holder in due course as a holder who takes an instrument (a) for value, (b) in good faith, and (c) without notice that it is overdue or has been dishonored, or of any defense against or claim to it on the part of any person. Nowhere is there any evidence in this record that this plaintiff accepted and honored these checks with any notice, express or implied, of any infirmities in them. There is evidence in the record — of doubtful relevancy and propriety — that Sledge’s credit with his bank and in the community was elastic — so elastic in fact that his own checks bounced with regularity all over the place. It further appears that he ultimately went into bankruptcy — an evidentiary tidbit bearing on nothing in this record. Whatever may have been his financial record, it had nothing to do with the integrity of defendant’s checks or with any notice express or implied that the defendant could not or would not honor his commercal paper or that any person had a defense against or claim to any part of them. “It is a purchaser who knows at the time of the purchase of an asserted defense, or of facts or circumstances which may create a defense who is precluded from being a holder in due course, and then on the theory of ‘bad faith.’ ” National Currency Exchange, Inc. #3 v. Perkins, 52 Ill App2d 215, 221, 201 NE2d 668, 672. It is clear that the plaintiff as purchaser of these two checks had no notice of any of the infirmities set forth in Ill Rev Stats 1965, ch 26, § 3-304.

It is urged by the defendant that the plaintiff is not a holder in due course. No reason is given for such an assertion — nor is any authority cited for it. Having made the assertion, it is then urged that defendant receiving nothing of value for his checks i. e., that there was a failure of consideration. The defendant testified that the two checks were delivered to Sledge as a “loan on a short promise” i. e., a promise to give back cash the next day. In our judgment, there may have been a failure of payment but no want of consideration originally. The knowledge of infirmity was not known to nor acted upon even by the defendant until June 4. It is patent from this record that his two valid negotiable instruments were then in the hands of a holder in due course. Defendant’s die was cast. Both checks are bottomed on the same facts. He cannot stultify his own paper which he placed in the channels of commerce and which had reached a holder in due course before he was aware of any disabilities in his payee. He could not then retract or recall his negotiable instruments nor dishonor them with impunity.

Plaintiff’s post-trial motion requested an additur or in the alternative a new trial on the issue of damages only. Defendant says there can be a trial on the issue of damages alone only where it appears that the damages awarded were the result of a compromise on the question of liability. This is correct. Kinsell v. Hawthorne, 27 Ill App2d 314, 169 NE2d 678. After about 3% hours, the jury reported they were unable to agree and asked if their verdict must be unanimous. They were instructed by the court that it must be. Two hours later, the instant verdict was returned. Whether or not this was a compromise on the issue of liability or on the issue of damages is not clear. If the verdict had been for $3,000 or $3,500 it would have indicated a vote for liability on one check and nonliability on the other and perhaps a compromise on liability. It was for $3,600 which to us indicates a liability on both checks with a compromise on the amount of damages.

We have already observed that plaintiff is a holder in due course. There is no legal or factual defense to this suit on this record. The trial court should have directed a verdict for the plaintiff in the sum of $6,500. It didn’t. An anomalous jury verdict resulted. Plaintiff asks that the court grant an additur. This is not specifically included in the authority granted us in CPA If 92 (e), Ill Rev Stats 1965, ch 110 ff 92(e). The post-trial motion of the plaintiff is limited to a request for additur and a new trial on damages only. We are thus limited in the relief we can grant here. The refusal to direct a verdict for the plaintiff is not preserved for review. We have no proper alternative except to reverse and remand for a new trial on the issue of damages only.

Reversed and remanded.

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


text:
    People ex rel. William G. Clark, Attorney General of the State of Illinois, Plaintiff-Appellant, v. John McCurdie, d/b/a Fern’s Cafe, Towanda, Illinois, Defendant-Appellee.
    Gen. No. 10,748.
    Fourth District.
    September 26, 1966.

      William G. Clark, Attorney General of the State of Illinois, of Chicago (A. Zola Groves, of counsel), for appellant.
    Fleming, Messman & Lapan, of Bloomington (Roger D. Lapan, of counsel), for appellee.
   CRAVEN, J.

The question here for decision is the sufficiency of an amended petition to abate a nuisance, being a proceeding under the provisions of ch 38, § 13-1, et seq., Ill Rev Stats 1961, commonly known and referred to as the State Civil Rights Statute.

Originally, a petition was filed asking an injunction against the defendant restraining and enjoining the operation of a public nuisance. The petition alleged: That five residents of the State of Illinois, traveling on Route 66, stopped at Fern’s Cafe, located in Towanda, Illinois, to purchase food; that members of the “general public” were being served in the cafe; and that the defendant, as owner and operator of the cafe, refused to permit the five persons to purchase and consume food on the premises and that such refusal was a “denial on account of race or color” contrary to and in violation of sections 13-1 and 13-2 of chapter 38, Ill Rev Stats 1961.

The original petition, verified by an Assistant Attorney General, had attached an affidavit of the five persons allegedly refused service. This petition was dismissed on motion, apparently on the grounds that the verification was inadequate. Thereafter, by leave of court, an amended petition, substantially the same as the original except that it was verified by one of the five persons, was filed. This amended petition, to which was appended the affidavit of the five persons, also was dismissed on motion of the defendant. One of the reasons assigned for the dismissal was the fact that the petition did not specifically allege that “these persons were obeying the rules and regulations required by general patrons of the business.” The Attorney General elected not to amend, and on his motion final judgment was entered, and this appeal is from that judgment.

The Civil Rights Statute is remedial and imposes obligations and duties, and gives to persons wishing to patronize places of public accommodation, as therein defined, rights unknown to the common law. Pickett v. Kuchan, 323 Ill 138, 153 NE 667 (1926); City of Chicago v. Corney, 13 Ill App2d 396, 142 NE2d 160 (1957), and cases there cited. In the last case the court used language indicating that persons seeking such public accommodation “cannot be excluded from the premises so long as they conduct themselves in a peaceable and orderly manner.”

The case of White v. Pasfield, 212 Ill App 73, is urged as determinative of the question of the adequacy of the pleading. The court in its opinion did state:

“. . . for aught that appears in the bill, other reasons may have existed why these particular complainants were denied the privileges mentioned and the bill was defective for this reason.”

Immediately preceding that language in the opinion, however, the court stated that there was “no direct averment that complainants were deprived of the bathing facilities of the park on account of their color.” The Civil Rights Statute in force at the time of White v. Pasfield contained no provision for equitable relief by way of injunction and the holding of the court in that case was only that injunctive relief was not available to the plaintiffs.

Thus, substantive changes in the statute make the Pas-field case determinative of nothing on this appeal. Further, that case was decided in 1918, at which time the rules of pleading were different. In equity bills, the plaintiff frequently was permitted to anticipate affirmative defenses and to state facts showing the nonapplicability of those defenses. The reason for this practice was that the replication in equity was the last pleading and, under it, plaintiff could not prove matters in avoidance of an affirmative defense. To avail himself of such matter he was required to include it in his bill. White v. Morrison, 11 Ill 361. McCaskill, Illinois Civil Practice Act Anno, p 64. The Civil Practice Act eliminates the distinctions between pleading at law and in equity, and provides for pleadings beyond the reply when necessary, and no sound reason can be urged for retaining the common-law equity pleading rule.

The Civil Rights Statute imposes a duty upon the Attorney General, and other named officials, to investigate complaints and to institute proceedings whenever his investigation indicates evidence of violation. In such circumstances it is his duty to proceed to abate the nuisance as defined in the Act. (Ill Rev Stats 1961, c 38, § 13-4.) The Act also provides:

“A verified petition shall be filed setting up the essential facts showing that a nuisance as herein defined exists. If it is made to appear by affidavits or otherwise, to the satisfaction of the court or judge in vacation that such nuisance exists, a temporary writ of injunction shall forthwith issue restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the trial: . . .” (Ill Rev Stats 1961, c 38, § 13-3 (c) (D.)

Further provision as to notice of application for injunction is contained in the Act. (Ill Rev Stats 1961, c 38, §13-3 (c)(1).)

This special statutory proceeding contemplates injunctive relief, and a duty to issue a temporary injunction exists upon a showing of the requisite statutory conditions precedent. We can perceive of no reasons why the general rules as to sufficiency of pleading applicable to support a temporary injunction are not applicable to this statutory proceeding.

It is axiomatic that, in the consideration of the motion to dismiss, the factual allegations in the petition are to be taken as true. The petition is not required to make out a case which will entitle the petitioner to all of the sought ultimate relief but need only raise a fair question as to the existence of the claimed right. Capitol Records, Inc. v. Vee Jay Records, Inc., 47 Ill App2d 468, 197 NE2d 503 (1964). See also the opinion of this court in Sadewater v. City of Champaign, 74 Ill App2d 195, 219 NE2d 263.

Turning now to an examination of the allegations of the complaint as ultimately verified, and without considering the attached affidavit, we find an allegation of refusal to serve by reason of color or race, allegedly in violation of the statute. To impose upon the petitioner the duty to negate all possible defenses that may subsequently be invoked by the defendant would involve the pleading of evidence.

In the case of Cunningham v. City of Sullivan, 15 Ill App2d 561, 147 NE2d 200 (1958), the court was considering the sufficiency of a complaint seeking to recover from the city the value of the services rendered by the plaintiff as superintendent of the gas system. There was no allegation that the plaintiff was not an officer of the city at the time of his employment, thereby vitiating the contract. The court there concluded that there was no requirement on the part of the plaintiff to negate the affirmative defenses available to the defendant and that pleadings would be liberally construed to the end that form shall be inferior to substance.

This petition contains sufficient allegations and gave enough information to indicate a possible violation of the Civil Rights Statute. It was not incumbent upon the plaintiff in his petition, to negate all of the possible defenses available to the defendant. The action of the circuit court in dismissing the petition is reversed and this cause is remanded to that court with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.

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


text:
    St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis, an Illinois Corporation, Plaintiff-Appellant, v. The Town of Capitol, a Municipal Corporation of the State of Illinois, Defendant-Appellee, and William G. Clark, Attorney General of the State of Illinois, Defendant-Intervenor.
    Gen. No. M-10,752.
    Fourth District.
    September 26, 1966.

      Graham & Graham, of Springfield, for appellant.
    Roy Geibe Hill and William G. Clark, Attorney General of the State of Illinois, of Springfield (Madalyn Maxwell, of counsel), for appellee.
   HOFFMAN, J.

This is an appeal from a judgment in favor of Defendant township, pursuant to a jury verdict, finding that Plaintiff hospital was not entitled to payment from the Defendant for medical and hospital services rendered a minor child.

The facts are not in dispute. The minor, Mark Gill, age 4, was struck by an automobile driven by one Harold Olsen, who carried personal liability insurance upon his vehicle. The child was taken to Plaintiff hospital and received treatment totalling $492.40. The hospital billed Defendant township due to the indigence of Gill’s family. Because of Olsen’s insurance, Defendant refused payment, and this suit resulted. It is clear in the record that the sole reason for refusal of payment, under the statute pertaining to medically indigent persons, is the existence of Olsen’s liability insurance, and it is agreed that the only question here involved is whether or not such insurance prevents Gill from being medically indigent. Although the question is moot henceforward, because of a change in Department of Public Aid regulations, which now permits such payment, we are compelled to rule in the instant matter due to Defendant’s and the Attorney General’s resistance to this appeal.

The applicable statute (c 23, § 414, Ill Rev Stats 1965) provides:

“When a person not otherwise eligible for or receiving general assistance . . . falls sick or dies, not having sufficient money, property, or other resources, ... to meet the cost of necessary medical, dental, hospital . . . care . . . , the supervisor of general assistance in the governmental unit in which such person is at the time of his illness or death, shall give or cause to be given to him such care as may be necessary and proper . . . .”

To aid in the administration of this statute, the Department of Public Aid promulgated a rule regarding those cases arising out of tort injuries. Such rule, being designated as Rule 6300, reads as follows:

“Policy. When an applicant or recipient has been injured and may have a right to collect damages for that injury, he shall be expected to take appropriate action to collect such damages as may be due him, since such personal injury claims constitute a potential resource for his support.” (Emphasis added.)

Pursuant to this rule the township supervisor in the instant case took the position that young Gill was not medically indigent, because of Olsen’s insurance.

All parties agree that in Illinois there has been a long-standing statutory liability upon local government to provide medical services for persons who cannot meet their medical bills. (See Laws 1821, p 100, 101). It is stated in the present Act (c 23, § 101, Ill Rev Stats 1965) that “assistance and services for persons who are unable to provide themselves with a minimum standard of living compatible with decency and health are hereby declared to be special matters of public concern and a necessity in promoting the public health and welfare.”

For these long-standing reasons the statute, as above noted, provides that assistance be given for those “not having sufficient money, property and other resources.”

It has been held by our courts that the overseer of the poor (now the Supervisor of General Assistance) cannot refuse to fulfill his duties upon the ground that the unfortunate has relatives who may be liable. Moreover, the duty cannot be refused even if there is no money in the treasury or no tax in the course of collection (although this payment must be approved by the county board). Town of Kankakee v. McGrew, 178 Ill 74, 52 NE 893. In the latter case, the Supreme Court stated, at page 84,

“The necessities of the unfortunate class designed to be relieved by the law do not, however, admit of delay. Pain and suffering must be relieved; food, clothing and shelter must be furnished to those in need; the dead must be buried. Prompt relief is imperative, and the overseer of the poor may not await the action of the State’s attorney and the termination of proceedings in court, but, as the representative of the town, must care for those who are so unfortunate as to be entitled to assistance from the public.”

Again, in Rock Island County v. Arp, 118 Ill App 521, the Appellate Court held that the supervisor was not required to wait for relatives to act. See also: Town of Aroma Park, Kankakee County v. Town of Papineau, Iroquois County, 313 Ill App 135, 39 NE2d 396.

Here, the supervisor is saying that the hospital, which by statute (c 111%, § 86, Ill Rev Stats) is required to furnish emergency treatment to the injured, must await payment until Olsen’s insurance company either voluntarily, or by suit, makes such payment. Such a position is not realistic in today’s world. All of us know the delays and perils of litigation. In the instant case, the fact is that the insurance company has not yet paid this bill, nor has the minor sued.

In our view, the position of the township supervisor here was unreasonable, and the Department regulation upon which the supervisor relied was contrary to the public policy behind the law. The bill should have been paid promptly by the Defendant, and the township should have looked to its subrogation.

There being no other point involved, the judgment is contrary to law and is reversed. Judgment is entered here in favor of the Plaintiff in the sum of $492.40 together with its costs.

Judgment reversed and judgment here.

SMITH and CRAVEN, JJ., concur.


text:
    In the Matter of the Estate of Jean H. Weaver, Incompetent. John William Weaver, Objector-Appellee and The First National Bank of Springfield, Executor of the Will of Dorothy Jean Weaver, Deceased, Intervenor-Appellee, v. Mary W. Lock, Intervenor-Appellant.
    Gen. No. 10,756.
    Fourth District.
    September 26, 1966.

      Casey & Casey, of Springfield (Edward F. Casey, of counsel), for appellant.
    Paul F. Wanless, of Springfield, for appellee.
   SMITH, J.

This is an appeal from an order of the Circuit Court sustaining objections to a conservator’s report which did not include some joint tenancy property as a part of the estate and the refusal of the court to reopen the case to hear some after-discovered evidence. The trial court treated the joint tenancy property as part of the decedent’s estate, the incompetent having died while this litigation was pending.

In 1957, Jean Weaver established a savings account with the Marine Bank and gave a power of attorney to her daughter-in-law, Mary B. Weaver, authorizing her to draw checks on the account and to endorse and deposit checks. Mary Weaver exercised her authority when Mrs. Weaver was hospitalized in 1958. In 1960, Mrs. Weaver cancelled the power of attorney and converted the savings account to a joint tenancy account with her daughter, Mary Lock. Both signed the usual joint tenancy bank card. In January 1962, she converted this account into a joint tenancy with her son, Bill Weaver, both signing the joint tenancy card. In September 1962, she restored the same account to a joint tenancy with Mary Lock, both signing the card. Mrs. Weaver was hospitalized twice in 1964, the second time being her last. She suffered a stroke about October 15, and was unable to communicate as a result of paralysis. She was then 77 years old. On November 24, Mary Lock was appointed conservator. Jean Weaver died December 23, 1964. Mary Lock filed her inventory after the death of Jean Weaver and listed the savings account as “now the property of- Mary W. Lock.” Objections to the final report and to this item were filed by an heir. The objections were sustained. There is no doubt but that the funds originally were those of Jean Weaver.

The understanding creation of a joint tenancy bank account creates a presumption of a gift to the survivor and such presumption can be overcome only by clear and convincing evidence that no gift was intended. Dixon Nat. Bank of Dixon v. Morris, 33 Ill2d 156, 210 NE2d 505; Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470; Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850. Clear and convincing evidence is that quantum of proof which leaves no reasonable doubt in the mind of the trier of fact of the truth of the fact in issue. Cravens v. Hubble, 375 Ill 51, 30 NE2d 622; Finney v. White, 389 Ill 374, 59 NE2d 859; Galapeaux v. Orviller, 4 Ill2d 442, 123 NE2d 321. Where the account is created for the convenience of the decedent, the donative intent is rebutted. See Dixon. Where the evidence shows clearly and convincingly that the donative intent was present and the survivor was to be the ultimate recipient, the right of survivorship will be enforced. See Murgic. In the light of these principles, we turn to the evidence.

The objector, Bill Weaver, testified that when his mother asked him to sign the joint tenancy card, he asked “why” and she said, “I am frequently ill and I can’t get out and I sometimes need money to pay bills and I want you to go and do it for me.” He suggested to her that he could get her money and she said, “I don’t think you will; it is my money and I am only doing it so that if I am unable to get out someone can do this for me.” Mary Lock testified: “The first person that suggested that I had some right to this money was Mr. Hoffman at the bank. It was news to me. . . . Mr. Hoffman wanted to put it in my name and my husband’s. I said no, she is not gone, she may not go. My mother never told me she put the money in the bank in order it would be mine when she died. She never told me that.” It seems clear to us that the presumption of donative intent, be it treated as engendered by the mother-daughter relationship or by the agreement or by both, is thus clearly and effectively negated. The frequent changes suggest a fitting pattern of convenience and indicate no intention of an ultimate gift to the other joint tenant. This record is more akin to Dixon than it is to Murgic. It is clear that no present gift of an interest in the fund was intended and, further, none of the successive joint tenants even thought so. The judgment of the trial court was correct.

The trial court refused to reopen the case upon newly discovered evidence, shown by affidavit, that in September 1964, Mabel Fell, a sister of the decedent, visited with her. In discussing her property, decedent said her two sons had received more money than her daughter, Mary Lock, and she intended to leave her money to her. She further stated she wouldn’t have much money left but what she did have she planned to leave to Mary Lock. This testimony is pregnant with the thought that whatever she intended to do, she hadn’t yet done it. The joint tenancy account was then in existence. It is patent that the donor did not think she had accomplished her desires by the creation of the joint tenancy. There was something more to do if Mary Lock was to receive the money, and it is apparent that the decedent was aware of this. The refusal to reopen for this testimony was not error.

There being no error in this record, the judgment is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Defendant in Error, v. Joseph Johnson, Defendant-Plaintiff in Error.
    Gen. No. 10,759.
    Fourth District.
    September 26, 1966.

      Stuart Dobbs, of Springfield, for plaintiff in error.
    Raymond L. Terrell, State’s Attorney, of Springfield (Richard A. Hollis and James P. Fox, of counsel), for defendant in error.
   CRAVEN, J.

This is an appeal from a conviction for the offense of robbery. The defendant was sentenced to the penitentiary for not less than two nor more than eight years by the circuit court of Sangamon County after being convicted at a jury trial.

The defendant asserts four separate errors as grounds for this appeal:

1. That the defendant should have been discharged under the fouif months’ rule. (Ill Rev Stats 1961, c 38, § 748.)
2. That the trial court erred in admitting testimony prejudicial to the defendant.
3. That the evidence was insufficient to prove the defendant guilty beyond a reasonable doubt.
4. That the trial court erroneously instructed the jury on the issue of flight.

The evidence shows that the complaining witness testified that he had just been paid and had on his person approximately $155 in small bills; that he was drinking with the defendant in the Hi-De-Ho tavern. He stated that after he left the tavern the defendant followed him and shoved him into a taxicab that the witness was about to enter, and thereafter robbed him. Later, the witness testified he was in the Starlight tavern. The State called several witnesses, Harold Boyer, Nathaniel Beeler and Avonette Boyd, who testified that the defendant attempted to rob the complaining witness, Boyer, earlier in the Starlight tavern.

The State also called Stanley Gureski, who testified he was driving a taxicab for the Lincoln Cab Company on the date in question. He stated that he picked up the complaining witness at the Starlight tavern and that, as his passenger was entering his cab, the defendant ran from the tavern, pushed and followed the complaining witness into the taxicab. The witness Gureski then went into the tavern to call the police. When he returned, the complaining witness was getting out of the cab with his wallet in hand and stated, “I was robbed.”

The arresting officer testified that he arrested the defendant an hour to an hour and one-half later at his apartment. He stated that the defendant had $85 in his possession at the time of his arrest. The defendant’s roommate, Agnes Baldwin, corroborated this account.

Vanzella Freemon, the defendant’s girl friend, testified she loaned the defendant $15, Davis Cole testified he loaned the defendant $25, Merle Graham testified he paid the defendant $36 and Nicholas Anthony testified he paid the defendant $13.05 — all on April 6, 1962, the date in question.

Ulysses Holifild testified he was present at the Starlight tavern on April 6, 1962, and saw the defendant talking to the complaining witness through the window of a cab. He stated there was no scuffle and that no money was taken. He testified he was there until the police arrived. On cross-examination he stated the defendant was dating his sister.

The defendant was first arrested on April 6, 1962, the date of the alleged offense, and remained in the Sangamon County jail until he was finally brought to trial on October 8,1962.

The defendant was first brought to trial on July 16, 1962. However, after a jury was empaneled and testimony taken, the defendant moved for and was granted a mistrial. The court then entered the following order:

“The Court having heard evidence on the part of the State and upon motion of the defendant by his attorney, Lawrence Swinyer, to withdraw a joror [sic] and to continue the trial in the above cause, a juror having been withdrawn by the Court, it is hereby ordered by the Court that the trial in the above cause, which trial was commenced on July 16, 1962 be and the same is hereby continued to September 10,1962, at 9:30 a. m.”

On August 2 the court entered the following amended order:

“On the motion of defendant, by his attorney, Lawrence Swinyer, to withdraw a juror and to dedare a mistrial, motion allowed. Juror withdrawn and mistrial dedared. It is hereby ordered that the trial of the abovr [sic] cause be reset on September 10,1962, at 9:30 a. m.”

Nothing in the record indicates that this amendment was requested by motion of either party or that any notice was provided the State concerning the amendment. There is no showing in the record that the defendant did not concur in the setting that was originally made pursuant to his motion. This statute was enacted for the protection of defendants to secure a speedy trial. It was not intended as a procedural device to be used to allow the release of defendants without a trial. While there is no duty upon a defendant to make a demand while in custody, he cannot, by motion, terminate proceedings begun within the four months’ period, concur in a later setting pursuant to his motion for mistrial and then take advantage of a major change in the record without concurrence or notice to the State. Even though the record was amended, it is apparent that when all parties were present the defendant concurred in the continuance and the subsequent setting. The State was given no notice of the change in the record until the defendant’s motion for discharge. Although the defendant did not cause the continuance and the record was amended to show that he did not request it, we believe that he did, through his counsel, agree to the continuance as contemplated under the rule pronounced in People v. Williams, 27 Ill 2d 327, 189 NE2d 314 (1963). The People, as well as the defendant, are entitled to a reasonable interpretation of this statute.

The defendant contends that the evidence was insufficient to allow a jury to find him guilty beyond a reasonable doubt. We view this evidence as clear and conclusive. The defendant attempted to rob the complaining witness in the Starlight tavern immediately pri- or to the alleged offense. This was testified to by the complaining witness and corroborated by two disinterested parties. The cabdriver testified the defendant followed the victim from the tavern and pushed him into his taxicab. The victim testified the defendant then robbed him. The defendant argues that the testimony of Nathaniel Beeler and Avonette Boyd was too remote and constituted prejudicial error. We are unable to determine how more proximate the defendant’s conduct could have been. According to the testimony, the defendant made a continuing attempt to rob the complaining witness until he achieved his result. This course of conduct involved the same parties on the same date, at the same approximate time and place. Any evidence which tends to prove guilt is prejudicial. However, this evidence was proper and conclusively contributed to establish the defendant’s conscious and continuing effort to complete his unlawful objective.

People’s Instruction No. 14 was given upon the theory that the defendant had fled and told the jury that flight was a proper circumstance to be considered in determining the guilt or innocence of the defendant. The giving of this instruction was error, not because of the form of the instruction but because there was no evidentiary basis for the instruction. A flight instruction must be predicated upon evidence of flight. Here, the defendant left the scene of the crime and was apprehended an hour to an hour and one-half later at his apartment. Such facts do not show evidence of flight. We cannot accept the assertion by the People that the instruction was justified in that “Johnson fled from the scene of the crime and remained away until taken into custody.”

In the case of People v. Weisberg, 396 Ill 412, 71 NE2d 671 (1947), the facts of which were that the defendant left a bar, the scene of a shooting, and went to a hotel and en route disposed of a weapon, and a flight instruction was given, the court held this to be error and said at p 427 (71 NE2d at 680):

“It seems the prosecutor thought, and argues, it is the duty of the defendant, whether guilty or innocent, to either remain upon the scene of the homicide, or to surrender to a policeman. We have not been cited to, nor do we know of, any law requiring this upon the part of a man who has killed another, as he claims, in self-defense. This instruction should not have been given, but we do not see where it could have reasonably affected the verdict. Surely, any jury could distinguish between going home, and fleeing to escape arrest. Under a similar situation we held it could not be said that such an instruction constituted reversible error. People v. Haensel, 293 Ill 33 [127 NE 181].”

The erroneous giving of the flight instruction there was held not to be reversible error. The instant case does not turn upon a close factual basis, or upon the existence or nonexistence of flight. The instruction was not necessary, was error, but on the facts not so prejudicial as to require a new trial. People v. Agnello, 22 Ill2d 352, 176 NE2d 788 (1961).

The judgment and sentence entered by the Circuit Court of Sangamon County are affirmed.

Affirmed.

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