author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Daniel J. Cunningham, Defendant-Appellant.
    Gen. No. 65-46.
    Third District.
    July 22, 1966.

      Isador I. Katz, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   ALLOY, J.

Daniel J. Cunningham, defendant in this cause, was prosecuted for Attempt to Commit the Offense of Murder. This cause was tried before a jury which returned a verdict of guilty. The court denied a motion for new trial and also denied a petition for probation. Defendant was sentenced by the court to a term of not less than 10 nor more than 20 years.

On appeal in this court, defendant asserts that the Trial Court erred in the reception and handling of evidence and in ruling on objections thereto: in failing to exclude the People’s psychiatrist from the courtroom and thereafter permitting him to testify partially on evidence he heard in the courtroom; in the giving and refusal of instructions; and in making rulings with reference to the final argument of the State’s Attorney in the cause. Defendant also prays in the alternative that the sentence imposed by the Trial Court be reduced.

^ The facts in the case disclose that the defendant, Daniel Cunningham, during his lunch hour from his employment at the Rock Island Arsenal, had gone to downtown Moline on an errand to pick up a gasket for an outboard motor. He started to go back to the Arsenal but on the way stopped at a tavern in Moline. He then drank in that tavern for at least 30 minutes, drove back to the Arsenal, but was advised that he should go home and come back the next day. He then drove to East Moline and stopped at another tavern where he drank more intoxicants. He then left this second tavern and went to his home for a short period around 6:30 p. m. but left to go back to the second tavern which also served food. Defendant ate at this tavern. He is not positive where he went next but he did arrive at a tavern called the 2x4 Tavern. Defendant had never been in the tavern before and did not know any of the people there. After he continued drinking in the latter tavern, defendant became engaged in conversation with another customer whose name was Max Sharp. The conversation became hostile and a scuffle ensued, as a result of which defendant was thrown to the floor and was later helped up by the bartender and asked to leave. He then left the tavern, drove to his home, took a shotgun, drove back to the tavern, opened the door, and made some insulting statements about and to the people who were customers in the tavern. He began firing seven shots from the shotgun at various individuals in the tavern and struck many persons including the bartender, James Officer.

The police, following a call from defendant’s wife, who was not present in the tavern, found the defendant in the tavern and found it necessary to use gunfire to subdue defendant to prevent further violence on his part. Defendant was hospitalized and treated for his wounds.

Prior to the incident referred to, defendant had held a job at the Eock Island Arsenal as an inspector for a period of 11 years. He had an excellent reputation for being a peaceable and law-abiding citizen. Defendant had never committed any crime or been in any difficulty with the law. He had been married for 11 years and had two children. He was 34 years of age at the time of the shooting.

Defendant had a grammar school education. At the age of 17 he entered the Air Force where he remained for five years, and, after receiving his honorable discharge, he moved to the Eock Island-Moline area and took the job at the Eock Island Arsenal.

Prior to August 4, 1964, he had been a moderate social drinker and usually drank only beer. He never drank at home in deference to his wife’s wishes. Some of the witnesses at the time of the incident testified that the defendant, when they observed him, did not appear in a drunken state. Others, including the bartender, said defendant was high or feeling his liquor. Defendant stated that he had memory gaps as to various things that took place on the night in question and didn’t know exactly how much he had to drink.

At the hospital where he was taken following his injuries received from gunfire by the police, defendant was found in a highly disturbed condition by the treating doctor, was acting wild, and had a strong odor of alcohol about him. Defendant’s conduct on the night of the shooting was completely different than at later times in the hospital, when he was subdued and polite.

A psychiatrist called on behalf of defendant, testified that he had examined defendant at the request of defense counsel, in the month of October, 1964. The psychiatrist concluded that defendant being examined was a different man than the one described in the shooting incident on August 4, 1964. This psychiatrist also stated that he could determine with reasonable degree of medical certainty that on August 4, 1964, defendant, particularly during the shooting, suffered from a mental disease or a mental defect which rendered him lacking in substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He stated that this mental disease or mental defect was produced and precipitated by an unusually large amount of alcohol which defendant had consumed from noon of that day until about midnight. The psychiatrist concluded that in a sober condition defendant could not have conducted himself in the manner in which he did.

Another psychiatrist was called on behalf of the People and testified that he had listened to various witnesses at the trial, including Daniel Cunningham, and, based on the testimony heard and other hypothetical facts propounded, in his opinion, at the time of the occurrence in question, defendant was not suffering from a mental defect or disease. He stated that defendant was able to form an intent to commit the crime he was charged with and was not sufficiently intoxicated so that the intent was negatived. He gave as one of the reasons for this conclusion, that of the witnesses who testified whom he had heard, only one stated that defendant staggered and the others did not. This psychiatrist for the State also concluded that defendant had substantial capacity to appreciate the criminality of his conduct and to conform his conduct within the requirements of law. He conceded that it is possible for a person to be in an insane condition for a period as short as half an hour or several hours or for longer periods and also stated that alcohol could produce temporary insanity and that persons in such condition could commit grave outrages of which they afterwards might remember nothing and which might appear incomprehensible to themselves.

One of the principal defense contentions is that the court erred in allowing the People to elicit answers to questions concerning the physical condition of individuals shot by the defendant. An inquiry was made by the State in the course of the trial as to the nature and effect of the injuries of various individuals who had been shot in the 2x4 Tavern on the night in question. When William Officer testified, he was asked by the State’s Attorney to describe the extent of his injuries briefly. When the objection to this inquiry was overruled by the court, the witness was allowed to explain that three inches of the upper muscle of his right arm was struck and that the “bone was completely out.” Upon defense objection requesting that this comment be stricken as prejudicial, the court responded that the answer could stand. The State’s Attorney also asked whether Mr. Officer had been able to use his arm since that time and again, over objection, the witness was allowed to answer that he had “no use of the arm” because he couldn’t lift his hand. The William Officer who so testified was not the same person as the James Officer who was the only victim named in the indictment which was tried. James Officer, who was the victim named in the indictment, was permitted to testify over defense objection whether or not he was still under a doctor’s care and whether or not he had been able to return to work. The same line of questioning was asked as to other persons who were shot, including one who was interrogated as to whether he was able to use his right eye for vision; and another as to injuries to the right knee and loss of work as a result. Although objections were sustained to these questions, the results of the injuries were in fact communicated to the jury by the questioning (People v. Nickolopoulos, 25 Ill2d 451, 185 NE2d 209).

Defendant cites People v. Nickolopoulos, supra, where a shooting had occurred in a restaurant. The defendant in. that case had been drinking and the evidence was undisputed that defendant had shot the victim with a gun. In that case (where the charge was Assault with Intent to Commit a Murder) the issue was whether or not defendant had the intent to kill or whether intoxication negatived that intent. An officer in that case testified that when he looked at the victim he observed blood on the floor and when he removed him from the stretcher at the hospital he observed blood on the stretcher. Such testimony was objected to and over further objections the victim was permitted to testify that as a result of the shooting he was paralyzed in his left leg and had a number of holes in his intestine. The Supreme Court found prejudicial error in the questions and answers and reversed on that ground alone. In that opinion the court stated (at Page 454):

“The evidence of blood on the victim’s clothing, the floor and the stretcher and the evidence of the extent of the victim’s injuries was irrelevant and improper. The question concerning the victim’s condition in the hospital was likewise improper and even though an objection to this question was sustained, the jury was informed as to the victim’s condition. The erroneous evidence was of such a nature as to be highly prejudicial to the defendant.”

In People v. Carpenter, 49 Ill App2d 101, 199 NE2d 457, the Illinois Appellate Court held that even though evidence was admitted without objection the testimony as to the extent of wounds and bleeding suffered by a victim and a demonstration by the victim as to where the bullets had entered the body were irrelevant and improper in a prosecution for attempt to commit the offense of murder by shooting with a gun. The court there found the admission of such evidence constituted reversible error.

The State contends that the present case differs from the Nickolopoulos case in that in such case the State belabored the gruesome aspects of the crime and defendant did not introduce evidence similar in nature to that elicited by the State. It is contended that the People certainly did not belabor the testimony in question and that there was a waiver by defendant of any such error since defendant brought out the gruesome and unpleasant aspects of the case. The People contend that the present case differs from the Nickolopoulos case fundamentally since the Nickolopoulos prosecution was one for assault with intent to commit murder whereas this defendant was tried for attempt to commit murder under the present statute. The elements of the offense under the present Act (1963 Illinois Revised Statutes, chapter 38, § 8-4 (a)) are specified to be that “a person commits an Attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” The indictment in this case stated that defendant took a substantial step toward commission of the offense of murder by shooting and wounding James Officer. The extent of wounds of James Officer were, therefore, clearly relevant in the case since the nature of the wounds and their location might be significant in determining whether or not the shooting and wounding was an attempt to kill. It is further contended that the injuries to the other victims were relevant because they were all part of the res gestae (People v. Weger, 25 Ill2d 370, 185 NE2d 183). In the Weger case, the evidence relating to the murders of two women (other than the victim named in the indictment) was so inseparable from evidence relating to the killing of the victim referred to in the indictment that such evidence was admissible as part of the res gestae. It is contended by the People that the nature and extent of the wounds to other persons tended to show the intent of defendant to commit murder, which was the controverted point in the case. We cannot justify on the basis of the record before us, however, the evidence which consistently went into the resulting disability of persons other than James Officer.

It is also vigorously contended that the Trial Court erred in refusing to exclude the People’s psychiatrist from the courtroom in advance of his testimony, or in the alternative, erred in permitting him to testify after he had listened to the testimony of various witnesses and in permitting him to answer questions, based on his observations in the courtroom, and, likewise, to indulge in characterizing the evidence, in a manner which should be reserved to argument, wherein he weighed and passed on the credibility of testimony.

At the outset of the trial, the court ordered the exclusion of witnesses from the courtroom. Early in the trial, the psychiatrist who testified for the State appeared. The State’s Attorney requested that he be allowed to hear the proceedings so that he could obtain “background information.” His appearance was objected to on the ground that the expert’s answer to a hypothetical question should not be based in part upon a prior observation of defendant during the course of the trial. The State’s Attorney conceded that he only intended to have the psychiatrist observe the defendant while testifying but also wanted him to watch the other witnesses in order to get his “background information.” Objection was made to this procedure on the ground that the psychiatrist would necessarily base his conclusions on the testimony of the other witnesses and could not separate his observations of defendant from testimony of others with reference to activities of the defendant on the day in question. The court overruled the objections and the psychiatrist was allowed to sit in the courtroom from that time until he testified. The court properly acted within its discretion in permitting the psychiatrist to observe the defendant while the defendant testified.

The psychiatrist at the time of testifying indicated that he had been a spectator in the courtroom since the second day of the trial and had stayed in the courtroom continuously during the trial until he took the stand. He was the last witness to testify. He stated that he had listened to every witness who testified since he first appeared in the courtroom, and that he had made notes of the testimony of various witnesses. He also stated that he had conferred from time to time with the State’s Attorney and gave him the benefit of his observations as to particular witnesses when asked. He stated his testimony would be based on and include matters that he observed including hearing the various witnesses in the case. Objection was made to the testimony of the psychiatrist in form of a motion that he be denied the privilege of appearing as a witness for the reason that in formulating an opinion as to the competency of the defendant, the psychiatrist would be basing it upon matters heard from witnesses who were testifying to the events of the evening in question. The motion was denied. In his testimony before the jury, the psychiatrist was asked a hypothetical question by the State which by its terms asked him to base his opinion, in part, on what he heard in the courtroom. Objection to this line of questioning was overruled. In another hypothetical question, over objection, the psychiatrist was again asked to base his opinion on the testimony he heard in the courtroom and he was allowed to answer. The courts of this State have frequently asserted that a medical witness or expert should not base his opinion on evidence heard from the witness stand which is conflicting (Maton Bros., Inc. v. Central Illinois Public Service Co., 356 Ill 584, 596, 191 NE 321; Illinois Cent. R. Co. v. McCollum, 130 Ill App 267, 276).

In the course of the trial, the psychiatrist in the case before us was specifically asked to base his opinion on what he heard in the courtroom. In one instance he was asked to state the reasons why he believed defendant was able to form the requisite intent to commit the crime charged. His answer was: “I have seen the witnesses here. Only one witness do I recall mentioning that this man’s walk was not normal. All the others made no mention of the fact that he staggered.” When this answer was developed, a motion was made for mistrial on part of the defendant, which was denied by the court. The motion was predicated on the grounds that the psychiatrist was basing his opinion on what the witnesses had said, was weighing their testimony, passing on their credibility, and arguing his observations to the jury. In other instances the witness made similar observations. On one occasion he stated: “I think the so-called memory gaps are most unique. Here is a man who went to the 2x4 Tavern . . . .” Objection was made to this commentary on the ground that it was in the form of an argument or comment to the jury.

The People correctly contend there is no error in having the psychiatrist present in the courtroom in advance of testifying inasmuch as exclusion of witnesses is discretionary with the Trial Judge. It is also contended that since the State was not permitted to examine the defendant (the defendant did not consent to such examination) the State could only rebut the defense testimony by producing a psychiatrist to observe the defendant on the stand. It is contended that a proper hypothetical question was put to the psychiatrist and that he answered on the basis of a competent understanding and that the defense attorney through his objections filled in the hypothetical question by reiterating all of the evidence presented by the defense.

As we have indicated, it was proper for the court to permit the psychiatrist to be present to observe the defendant while he testified. We can find no justification, however, for permitting the psychiatrist to observe and hear the other winesses and thereafter in his testimony to refer and characterize the testimony of such witnesses on the basis of the conclusions of the psychiatrist. In so doing, he was erroneously permitted to invade the province of the jury in some limited areas and this was accentuated by the fact that he was the final witness to testify.

Other alleged errors were raised by defendant relating to the argument by the State’s Attorney: to the questioning of defendant’s psychiatrist with reference to testimony in unrelated criminal cases; to the injection of the issue of civil rights and riots in the trial; and in the giving and refusal of certain instructions. It is unnecessary to discuss these matters since it is unlikely that there would be a repetition of the major alleged errors asserted by defendant on a trial of this cause.

It is essential that each defendant receive a fair and impartial trial regardless of the reprehensible nature of the crime which is charged. It is basic that the jury should properly determine whether defendant committed the offense charged and whether at the time he had the capacity to appreciate the criminality of his conduct. This cause will, therefore, be reversed and remanded to the Circuit Court of Rock Island County for a new trial.

Reversed and remanded.

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


source: Caselaw Access Project

author: EBERSPACHER, J. GOLDENHERSH, P. J.,

license: Public Domain

text:
    Bobby Ray Clark and Warren H. Jordan, Plaintiffs-Appellants, v. William B. Fields, Defendant-Appellee.
    Gen. No. 65-74.
    Fifth District.
    July 22, 1966.
    Rehearing denied August 26, 1966.

      GOLDENHERSH, P. J., dissenting.
    Kassly, Weihl, Carr & Bone, of East St. Louis (Rex Carr, of counsel), for appellants.
    Johnson, Ducey & Feder, of Belleville, for appellee.
   EBERSPACHER, J.

This is an action brought against the bailee of an airplane by the bailors for the fair cash market value of the airplane which was destroyed in a fire which took place in the backyard of the bailee’s home. The jury found for the defendant-bailee, from which judgment this appeal has been taken. There is no dispute as to the facts in this case. In August, 1962, the plaintiffs were the owners of a small airplane, a Tri-Pacer model. Federal regulations required that such airplanes be inspected annually by F. A. A. inspectors for safety purposes. The defendant, William B. Fields, was a licensed airplane power plant mechanic authorized to repair airplanes. He advised them that the fabric on the plane could not pass the test and needed recovering. Since the cost of recovering the plane was more than plaintiffs could afford, the defendant offered the uses of his tools and equipment if they wished to do it themselves. They accepted his offer and the wings were removed and the airplane placed in defendant’s basement. During the winter of 1962 and 1963, plaintiffs worked regularly in the defendant’s basement using his tools and availing themselves of his advice. There was no agreement that the defendant was to be paid anything for the use of his basement or tools, other than the ultimate payment of a $70 inspection fee.

In the latter part of February, 1963, the plane was taken from the defendant’s home to an auto body shop where it was painted and then returned to the defendant’s home. At defendant’s direction, the plane was placed in his backyard at a spot designated by him near a small ravine or gulley where he customarily burned his trash. His backyard was 70 to 80 feet wide and 40 to 60 feet deep. It was covered with ordinary grass and the plane was placed some 40 to 50 feet from the defendant’s house and some 15 to 20 feet from the gulley where the trash was customarily burned. The plane was covered with a sheet of plastic which was furnished by defendant.

A ditch ran from the spot where the plane was placed to the area where the trash was burned. This ditch was filled with dry grass and the yard surrounding the plane was filled with dry grass.

A week or ten days later, on March 8, 1963, the defendant took some trash out into his backyard to burn. He did not have a trash container nor any other built-up area for the burning of trash. He dumped the trash in the gulley on the back of his lot, set it on fire, and before it had burned out, was called into his house by his wife to move a refrigerator. When he left, the trash fire was still smouldering. The trash consisted of paper and other things that were inflammable. It was dumped and set on fire a distance of some 50 to 20 feet from the airplane.

A short time later the defendant’s wife looked out the back window, saw that the airplane was on fire and called to her husband. When the defendant got out there, the grass running from the place where the trash was burned to the place where the airplane was located was on fire and still burning. The entire perimeter of the burned area, and surrounding the airplane was aflame. The trash that the defendant had dumped and burned was all over the side of the hill. The plane was totally destroyed except for the wings and stabilizer which were not attached to the plane.

Howard L. Gault, a dealer in planes, testified that the fair cash market value of the fuselage with the wings and stabilizer removed, was $4,700. The defendant placed the fair cash market value of the plane as between $4,500 and $5,500; the value of the unburned parts, if a ready buyer could be located, between $300 and $350; and the salvage value of the motor at $150. In the motion for judgment notwithstanding the verdict plaintiffs asked for damages in the amount of $4,500, which is an undisputed amount of damage.

The rule relating to the burden of proof in gratuitous bailment cases is stated in Miles v. International Hotel Co., 289 Ill 320, 124 NE 599, as follows (327):

“The weight of modern authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were not returned to the bailor on demand the bailor has made out a case of prima facie negligence against the bailee, and the bailee must show that the loss or damage was caused without his fault. (Citing cases.) The effect of this rule is not to shift the burden of proof from, plaintiff to the defendant but simply the burden of proceeding. The bailor must in all instances prove that the bailee was negligent, but when she shows that the goods which she intrusted to the bailee’s care were not delivered upon demand she has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make out her case, must show that the bailee was, in fact, negligent and that its negligence caused the loss or contributed thereto. It was held in Sanborn v. Kimball, 106 Me 355, that the bailee has sufficiently exonerated himself from liability when he has shown that the cause of the loss was a mystery.”

This rule was quoted and followed in Priester v. Judkins, 7 Ill App2d 414, 129 NE2d 583, which likewise is concerned with the liability of a bailee of an airplane, and his failure to satisfactorily explain his actions.

A gratuitous bailee is bound to take such care in the preservation of the property intrusted to him as every prudent man takes of his own goods of like character. Miles v. International Hotel Co., supra.

In the instant case, there is no dispute of facts as to who started the fire that eventually caused the loss of the aircraft. The cause of the loss is not a mystery. The defendant started a trash fire and then went back into the house while it was still burning or smouldering. The burden of proceeding as to issue of negligence shifts to bailee after bailor has shown that goods were received in good condition by bailee and not returned to bailor on demand. Sampson Co. v. Mandel Bros., Inc., 3 Ill App2d 92, 120 NE2d 571. The defendant has not introduced any evidence showing himself free from negligence. In Hollingshead Motors Co. v. Crogan, 336 Ill App 423, 84 NE2d 440, plaintiff delivered a car to a garage to be stored. The garage had a fire and plaintiff’s car was destroyed. The defendant introduced evidence tending to show that the damage to the automobile was caused without his fault. The court held that from all of the evidence a triable issue was presented which was properly submitted to the jury. In the instant case, defendant’s evidence was only that of his fault, so no triable issue was presented.

In Oscar Heyman & Bros., Inc. v. Marshall Field & Co., 301 Ill App 340, 22 NE2d 776, it was held that where bailor makes out prima facie case of negligence ■against bailee by showing goods have not been returned on demand, bailee, before he is relieved of liability must show that loss, theft or destruction by fire was not the result of any negligence on his part. In the instant case, the defendant, William B. Fields, has not carried the burden of showing that he was not guilty of any negligence which contributed to the cause of the loss; instead his own testimony is evidence of his failure to exercise ordinary care.

While it is true, as stated so many times, that the reviewing court may not substitute its judgment for the judgment of the jury, yet the reviewing court has a duty to reverse where the verdict is so clearly against the manifest weight of the evidence. Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529. The evidence clearly shows that defendant set fire to trash in an open gulley, filled with dry grass, which was only 15 or 20 feet from the airplane. Defendant then proceeded to return to his house, while the fire was still smouldering. This does not show ordinary care on the part of the defendant and does not rebut the prima facie case established by the plaintiffs.

The judgment of the Circuit Court of St. Clair County is reversed and the cause is remanded with directions to enter judgment in favor of plaintiffs and against defendant for $4,500 and costs.

Reversed and remanded with directions.

MORAN, J., concurs.

GOLDENHERSH, P. J.,

dissenting.

I respectfully dissent from the majority opinion and would affirm the judgment. The effect of the majority holding is to find the defendant guilty of negligence as a matter of law, when, under the evidence in this record, the question of defendant’s negligence was for the jury to determine.

I have no quarrel with the rule of Miles v. International Hotel Co., 289 Ill 320, 124 NE 599, upon which the majority relies. I refer the court to a second rule, also enunciated in Miles, that the bailee is required to exercise such care and diligence in the preservation of the property entrusted to him as a prudent man takes of his own property of like character.

The Supreme Court in Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, at page 84, said: “Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function.”

Applying the rule set forth in Ney, I cannot agree that the defendant was negligent as a matter of law. It was properly a jury question, and in the absence of error in rulings on evidence or instructing the jury, I would affirm the judgment of the Circuit Court.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. J. C. Murray, Otherwise Called James Murray, Defendant-Appellant.
    Gen. No. 50,128.
    First District, First Division.
    July 25, 1966.

      Sidney Gordon, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Daniel Leahy and Elmer C. Kissane, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, J. C. Murray, otherwise called James Murray, was indicted and tried before a jury for the crimes of burglary and theft. During the course of the trial the theft charge was nolle prossed and the defendant convicted of the crime of burglary. He appeals on the ground that prejudicial errors were committed prior to and during the trial which deprived him of a fair and impartial trial.

On Sunday, February 25, 1962, at approximately 4:00 p. m., Ben Rosen, the owner of the Mercy Drug Store located at East 26th Street, Chicago, closed his store after setting the burglar alarm which was the type that did not ring in the store but activated an alarm in the office of a watch service. The next morning, at about 3:00 a. m., he was informed that the alarm had rung in the agency’s office indicating that the store had been broken into. He went to the store and, in company of police officers, noted that there was “a big hole up on top of the roof of the ceiling”; that a stepladder was nearby; that “the store in general was pretty well disturbed” as evidenced in particular by an array of liquor bottles and hosiery around the ladder; that a gun was missing, and approximately $3 in change was taken from the cash register.

He conducted business as usual on the 26th and an agent from the Central Watch Service repaired the burglar alarm by stretching wires over the hole, making egress through it without detection impossible. At 10:00 p. m., that night, Rosen again locked his store after resetting the alarm and went home where shortly thereafter he was informed by phone from the Central Watch Service that the alarm had rung again in its office. He immediately went to his store where he met an agent of the watch service and several police officers outside the premises. He opened the door with his key and entered, accompanied by agent Bronkhorst of the watch service and police officer Cerinich “looking for what caused the alarm to go off.” The defendant was discovered hiding beneath a desk and was “dragged out from underneath” it and searched. A revolver and $4 in change were found on his person. Defendant denied the gun was his but did say that he had been in the store all day; that he could not get out because, upon chopping the hole, the metal lathing had been depressed to a position which prevented his exit.

On entering the store Rosen observed that the stepladder was beneath the boarded-up hole in the ceiling, and that whiskey bottles and hosiery were strewn at the base of the ladder. He further observed that the defendant wore no gloves or shoes and upon asking the defendant if he had worn gloves to avoid leaving fingerprints, the defendant replied that he had worn gloves and that his gloves and shoes were atop a telephone booth under some boxes; that he had hidden there after entering the store through a hole in search of money and whiskey on the evening of the 25th. An examination of the top of the booth revealed the defendant’s gloves and shoes and, in addition, Rosen noted a “pretty foul odor” emanating from the phone booth.

The defendant contradicted this testimony at trial saying that he was looking for junk in the alley behind Rosen’s store on the night of the 26th when agent Bronkhorst came out of the store, hit him with a pistol, and forced him inside where he was confronted by several police officers and Rosen. Defendant further testified that the money found on his person was his own; that no gun was found on him but rather on the floor, and that he at no time admitted making a hole in the ceiling or hiding inside the store.

Defendant’s prior convictions for armed robbery and burglary were received in evidence on the issue of defendant’s credibility.

On appeal, defendant does not contend that the verdict is against the manifest weight of the evidence but does advance certain contentions which question the fairness and impartiality of his trial.

First, defendant contends that the State was improperly allowed to peremptorily challenge two jurors, constituting reversible error.

Defense counsel waived court reporting of the voir dire proceedings and thus the record before us does not disclose the exact form of the questions, answers, remarks or sequence of events of the voir dire examination. However, the record does contain colloquy between counsel and the trial judge, including the latter’s summarizations, which sets forth with sufficient clarity the facts underlying defendant’s first assignment of error.

At voir dire after the first panel of jurors had been sworn, four more jurors in the second panel were examined by the State and tendered to defense counsel. The latter examined the jurors, excused one, substituting a prospective juror, and retendered the panel to the State. The State then excused, by a peremptory challenge, two members of this panel originally tendered by it to the defense. Defendant, citing Mayers v. Smith, 121 Ill 442, 13 NE 216 (1887) asserts that the prevailing Illinois rule precludes peremptory challenges after both sides have accepted a juror and that, therefore, the State’s challenge was improper. That is not the rule. The pertinent provisions of the Jurors Act, Ill Rev Stats 1965, ch 78, §§21 and 23, explicitly state that jurors must be accepted in panels of four. The Supreme Court, interpreting this statutory mode of procedure has held that until both sides have accepted a panel of four jurors either side has a right to peremptorily challenge a juror previously tendered to the other side. People v. Schanda, 352 Ill 36, 185 NE 183 (1933). Moreover, the conduct alleged herein as error is substantially identical with the conduct before the Supreme Court in People v. Gray, 251 Ill 431, 96 NE 268 (1911), wherein the court in upholding the validity of the peremptory challenges, expressly distinguished the Mayers case relied upon herein by the defendant. The court stated (p 438):

[I]n that case [Mayers v. Smith] the full panel had been accepted by both sides and thereafter an attempt was made to peremptorily challenge one of the jurors so accepted. The full panel had not been accepted on both sides in this case, and the ruling in Mayers v. Smith, supra, is not in point here. Until both sides accept the panel of four, without question the statute permits either side to challenge peremptorily a juror theretofore tendered to the other side.

We, therefore, hold that no error was committed in this regard.

Next, defendant contends that the trial court erred in allowing “an admitted biased juror to become a member of the jury after challenge for cause and objection of counsel.” The basis for this contention is necessarily the juror’s answers to questions and the circumstances making up his voir dire examination. As previously noted, that examination does not appear in the record although, again, there is colloquy relating to the questioning of the allegedly biased juror. This colloquy alone is insufficient to enable us to independently evaluate the issue of the juror’s alleged bias. The proper determination of bias, if any, is dependent upon the exact language of the questions and answers and the context within which they were given. Absent such facts, a determination of the charge of bias would be grounded on mere speculation and surmise.

Defendant then charges that prior to and during the course of the trial he endeavored to learn whether the complaining witness made a statement to the police by filing appropriate motions and serving a subpoena duces tecum on the State and police department; that such a statement did in fact exist, and that it was never furnished him before or during trial. Defendant contends that the withholding of the complaining witness’s statement is contrary to section 9 of chap 51 of Ill Rev Stats which grants to a court the power . . upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce writings in their possession or power which contain evidence pertinent to the issue.” Defendant also contends that said withholding is contrary to the decisional law of Illinois as found in two Supreme Court cases, People v. Moses, 11 Ill2d 84, 142 NE2d 1 (1957) and People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960).

Without considering whether defendant may now invoke the protection of section 9 without seeking to invoke it at trial, it is clear under the Moses and Wolff cases alone that the accused is entitled for impeachment purposes to the production of all competent documents relevant to the testimony of prosecuting witnesses when such production would not be against the public interest, and that the unjustified witholding of such documents may constitute reversible error. However, the record before us does not indicate that the complaining witness, Rosen, ever made a statement to the police. Furthermore, there is nothing in the record to indicate that any other “documents” existed which the defendant had a right to have produced under the Moses-Wolff rule, and which were not turned over to him.

Defendant predicates the existence of Rosen’s “statement” to the police upon the following testimony at trial during cross-examination:

Q. Was officer Cerinich writing anything down while he asked you [Rosen] these questions ?

A. I think so.

Q. And at the time that you finished giving your answers did they ask you to sign something at that time?

A. I don’t really remember, but I think I did sign it.

Officer Cerinich testified that although he had talked with Rosen pursuant to filling out a standardized burglary report, neither he nor any other officer in his presence, took a written question and answer statement from Rosen or agent Bronkhorst. Moreover, the record shows that the police department, pursuant to the subpoena duces tecum, which apparently was served upon it alone, delivered to the State’s Attorney its complete file on the burglary of Rosen’s store consisting of:

“Arrest slip of J. C. Murray: Narrative report of Officers Macke Crean and Shapiro; Narrative supplemental report A. J. Powers; Narrative supplementary report by officer Otto McCullom.”

These reports were turned over to defense counsel and their receipt acknowledged by him at trial. When it was protested that these reports did not represent the police department’s complete file, the trial court advised defense counsel to check with the police department with reference to a statement given by Rosen. This defense counsel then did but admitted that “we could not determine at this time whether a statement was in fact made or not.” In the absence of proof of the existence of such a statement, there could be no violation or abridgement of defendant’s rights under the rule of the Moses-Wolff cases.

Defendant contends that “error was committed by the trial court in permitting the theft count to be nolle pressed at a late stage in the proceedings and without the consent of the accused or a finding of acquittal of that charge.” Although defendant admits that his research of the law indicates that the State can nolle prosse counts at almost any stage of the proceedings, he argues that he was not accorded a protective qualification in that his consent was not obtained nor was there an acquittal of the crime charged which would have prevented reinstatement of the count during the same term of court. We find no basis for this contention as such issue was disposed of in People v. Hines, 30 Ill2d 152, 195 NE2d 712 (1964) when therein the court said (P 156):

It is contended by defendant that he could be placed in double jeopardy by the State’s nolle pressing of count II. The jury had already been panelled and evidence heard prior to the possession count being nolled. The claim of the possibility of double jeopardy is without merit. Defendant could not be subsequently reindicted and retried for the nolled charge.

See also section 3-3, chap 38 (Ill Rev Stats 1965, c 38, sec 3-3) and comments thereunder regarding Multiple Prosecution for Same Act.

Subsequent to the theft count being nolled, the gun and coins found on the defendant at the time of his arrest in the premises were allowed into evidence. Defendant charges that the admission of the coins — the stolen money — was admitting evidence of the theft and was reversible error. The money was inadmissible as evidence of the nolled theft charge but admissible as evidence of the burglary. The offense of burglary is the entering of a building without authority, with the intent to commit a felony or a theft. People v. Brancztet, 59 Ill App2d 381, 208 NE2d 416 (1965); People v. Griffin, 48 Ill App2d 148, 198 NE2d 115 (1964); People v. Colby, 27 Ill2d 273, 189 NE2d 317 (1963).

Finally, defendant attacks the admissibility of the coins because he says there was a disparity between the amount of the coins when counted in open court ($3.97) and the amount written on the envelope containing the coins ($4). While from the record it appears that there was a plausible explanation for the apparent difference, even if the disparity actually existed the point would not be well taken.

In the Brancztet case, the court said (p 387):

A quantity of change and a screwdriver were found on the defendant after a lawful search. Even if there had been no positive identification of some of the coins, the evidence taken from the defendant’s person was clearly admissible.

See also the Griffin case, pp 154, 155 and the authorities cited.

For these reasons, the conviction is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.

       The building was in the process of being demolished and the upper stories were being removed, leaving the drug store on the first floor intact and operating.

       Defendant raised no issue regarding the admission of the gun into evidence.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Davis, Defendant-Appellant.
    Gen. No. 50,502.
    First District, First Division.
    July 25, 1966.

      John H. Bitner, of Chicago (Bell, Boyd, Lloyd, Haddad & Burns, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Richard Davis, was found guilty of armed robbery after a bench trial, and sentenced to a term in the penitentiary of not less than four nor more than twelve years. On appeal, he contends: (1) that the indictment was constitutionally defective; (2) that the court committed reversible error in denying his petition for a bill of particulars; (3) that the State failed to prove beyond a reasonable doubt that he was sane at the time of the alleged acts; (4) that the court was in error in ordering stricken a defense witness’ answer to a hypothetical question; and (5) the court erroneously permitted three witnesses to testify a second time in rebuttal over the objection that the rule of exclusion had been invoked and the witnesses had remained in the courtroom after testifying the first time.

The record reveals that at about 3:30 p. m. on December 26, 1962, the defendant entered a clothing store at 63rd Street and Ellis Avenue in Chicago. After spending about forty-five minutes selecting many garments, he gave the proprietor, Max Gillman, a deposit of $30 and told Gillman he would return the following Friday to pick up the merchandise. Defendant then pulled a pistol from his coat pocket, announcing, “This is a stickup,” and instructed Gillman to wrap the package containing the clothing he had selected. He then took over $100 in cash from Gillman, which included the $30 deposit he had just paid, and instructed Gillman, another clerk, and a customer to go to the back of the store. After ripping two telephones from the wall, defendant left the store and hailed a taxi. As Gillman watched from the sidewalk in front of the store, defendant rode in the taxi for about two blocks, and then entered a hotel. Gillman called the police from a neighboring store, and about fifteen minutes later accompanied two officers to the hotel. Gillman saw the defendant in the third-floor hallway, and identified him. The officers recovered a pistol and over $100 in currency from the defendant’s pockets, and when Gillman asked him, “Where is the merchandise?” the defendant pointed to a closet, where the police found a package containing the clothing taken from the store. A police officer testified that, when Gillman saw the defendant at the police station later that day, defendant said, “All of [the money taken from defendant’s pocket] didn’t belong to Mr. Gillman. Some of that money is mine. I had it before I went into the store.” Gillman also testified as to this statement by the defendant. From the money taken from the defendant, the police turned over to Gillman the $95 claimed by Mm, and returned the balance to the defendant.

Defendant was indicted for this offense on January 9, 1963, and the Public Defender was appointed to represent him. Upon motion, he was examined in the Behavior Clinic of the Criminal Court of Cook County. The result of this examination, performed by Dr. William H. Haines, was a diagnosis of, “suspected schizophrenic reaction,” and on January 30, 1963, a sanity hearing jury found the defendant at that time to be insane. He was thereupon committed to the Illinois Security Hospital at Chester, where he remained until he was released pursuant to his petition about January 1, 1964. The indictment was reinstated on January 17, 1964, and on February 6, 1964, a sanity hearing jury found the defendant, “competent.” After a series of continuances, defendant filed a petition in September of 1964 for a bill of particulars and for an order appointing a private psychiatrist to examine him at the State’s expense. The petition was denied; and in February of 1965 the defendant was tried and convicted.

Defendant first contends that the indictment was constitutionally defective because it was so lacking in specificity as to render him unable to prepare his defense. The indictment alleged that, “. . . on the 26th day of December 1962 at and within [Cook] County Richard Davis committed the offense of robbery, in that he, by the use of force, and while armed with a dangerous weapon, took one hundred sixteen dollars in United States currency, robe, hat, two pair of pajamas and a tie set from the person and presence of Max Gillman. . . .” Defendant complains specifically of the failure to state the street address of the premises robbed, the approximate time of the offense, the citation of the statute violated, or the nature of the dangerous weapon. In light of the opinions of our Supreme Court in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, and People v. Reed, 33 Ill2d 535, 213 NE2d 278, we conclude that this indictment was sufficiently specific to satisfy constitutional and statutory requirements.

Defendant further assigns as error the court’s denial of his petition for a bill of particulars, claiming that without the information requested therein he was unable to prepare his defense. In his petition, defendant alleged that he had no recollection whatsoever of anything which transpired on the date in question, and requested information as to the address at which he was arrested (not that of the premises robbed), the kind of “dangerous weapon” used, and the time of day of the alleged robbery.

Section 111-6 of the Code of Criminal Procedure (Ill Rev Stats, c 38, § 111-6 (1963)), provides that the court may require the State’s Attorney to furnish the defendant with a bill of particulars when the indictment, although valid, “. . . fails to specify the particulars of the offense sufficiently to enable the defendant to prepare his defense. . . .” After a careful examination of the record in this case, we have concluded that the trial court’s denial of defendant’s motion did not hinder the defendant in the preparation of his defense. The evidence identifying the defendant as the robber and describing his actions was so overwhelming that we are convinced the information which he requested could not have formed the basis for any defense to the charges. Defendant’s only line of defense at the trial was that he was insane at the time of the acts and had no recollection of the events on the day of the crime. The information requested did not relate in any way to the preparation of such a defense. Whether the prosecution shall be required to give a bill of particulars in a given case rests in the discretion of the trial court, and only a clear abuse of that discretion in the denial of a motion is error. People v. Sims, 393 Ill 238, 242, 66 NE2d 86; see also the Committee Comments following SHA, c 38, § 111-6 (1963). Under the circumstances of this case, we conclude that the denial of defendant’s petition was not such an abuse of discretion.

The defendant next contends that his conviction should be reversed because the State failed to satisfy its burden of proving beyond a reasonable doubt that the defendant was sane at the time of the alleged acts. Insanity is defined in § 6-2 of the Criminal Code (Ill Rev Stats, c 38, § 6-2 (1963)) as follows:

§ 6-2. Insanity

(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

(b) The terms “mental disease or mental defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

In People v. Skeoch, 408 Ill 276, 96 NE2d 473, our Supreme Court stated the presumptions and burdens of proof relating to an insanity defense as follows:

Under the law of this State the presumption [of sanity] is overcome by evidence, tending to prove the insanity of the accused, which is sufficient to raise a reasonable doubt of sanity at the time of the commission of the act for which the accused is sought to be held accountable. When that is done the presumption of sanity ceases and the prosecution is then required to prove the sanity of the accused beyond a reasonable doubt, as a necessary element of the crime charged. People v. Patlak, 363 Ill 40; People v. Casey, 231 Ill 261, 266, 267. (408 Ill at 280).

Counsel for the defendant argues that the peculiar nature of the defendant’s actions at the time of the robbery, taken with the testimony of the defendant and that of two psychiatrists, raises a reasonable doubt as to his sanity at the time of the robbery; and that thereafter the State did not introduce evidence sufficient to prove his sanity beyond a reasonable doubt. A review of each of these factors is necessary in evaluating this contention. Counsel characterizes as “peculiar conduct” the fact that defendant originally gave Gillman $30 in cash, which he later took back; that he made no attempt to restrain the persons in the store from observing his escape or from following him; that he hailed a taxi and rode only two blocks; and that at the time of the arrest he neither resisted, attempted to escape, nor concealed the bundle of stolen clothing. The record shows, however, that the defendant, at gunpoint, ordered all persons in the store to the rear, and according to the testimony of Gillman told them, “You stay in the back. You are not going to get hurt.” He then ripped two telephones from the wall and escaped. Due to the prompt and brave action of Gillman, within minutes the defendant was faced with two police officers coming toward him on the stairs outside his third-floor hotel room. The fact that he submitted to arrest and search without resistance seems more a product of the circumstances surrounding his apprehension than of any mental derangement. Nothing in the conduct of the defendant on the day of the robbery suggests to us that he was not in possession of his faculties.

Testifying in his own defense, defendant said he had no recollection of events which had occurred in several periods of his life, including one beginning shortly before December 26, 1962, and ending six months after he was committed to the Illinois Security Hospital. He specifically stated that he had no recollection of the incident on December 26, 1962. However, the testimony of the two psychiatrists appearing for the defense casts a heavy shadow over this claim by the defendant. Dr. William H. Haines testified that there were occasions when he interviewed the defendant in the Illinois Security Hospital when he spoke coherently and with reference to the specific crime charged. Dr. Marvin Ziporyn testified that when he examined the defendant in October of 1964, the defendant showed some recollection of the incident surrounding his arrest, although his description of the events to the doctor was “hazy,” “dreamlike,” and “in primary process.”

Defendant places great reliance upon the diagnoses and testimony of the two psychiatrists in support of his contention that the evidence raised a reasonable doubt as to his sanity. Dr. Haines first examined the defendant in January of 1963, in the Behavior Clinic of the Criminal Court of Cook County, and at that time entered a diagnosis of “suspected schizophrenic reaction.” He then testified before the original sanity hearing jury that this would class the defendant as “insane,” and defendant was committed to the Illinois Security Hospital. Dr. Haines examined the defendant on several occasions later in 1963, and testified at the trial that he reached the conclusion that defendant was malingering, or assuming symptoms for gain; and that his diagnosis in January of 1963 was incorrect in that defendant was not suffering from a schizophrenic reaction, but was in fact a sociopathic personality. When asked to explain what he meant by a sociopathic personality disturbance, Dr. Haines testified, “It is a disturbance of the individual’s behavior, in which he does not conform to the rules of society.” He contrasted it with a schizophrenic by pointing out that in the schizophrenic personality the individual has broken with reality, whereas this does not occur in the sociopathic personality.

Dr. Ziporyn examined the defendant for the first time in October of 1964, over twenty-one months after the robbery. As a result of that examination, he diagnosed the defendant as “afflicted with a chronic schizophrenia in a state of remission,” and stated that he was able to date that condition back some twelve years. On cross-examination, he testified that before he examined the defendant he knew nothing about him or his history except that he was under indictment for a felony. He stated that his examination indicated that the defendant’s sensorium was intact, he was oriented to time, place and person, his memory was good and normal, he was in good contact with his environment, and his emotional stability was within normal limits, as were his dereistic thinking, his associations, and his apperception. He further stated that he found no signs of active psychosis. When asked what findings formed the basis for his diagnosis of, “chronic schizophrenia in a state of remission,” Dr. Ziporyn named three factors: first that the defendant had told him that Dr. Haines had diagnosed him as a schizophrenic in January of 1963, and Dr. Ziporyn testified, “. . . I am aware of Dr. Haines’ ability and I am certain that if he found active schizophrenia, that is what it was.” The second factor was that defendant told Dr. Ziporyn that he had been troubled by hallucinations while confined in Kankakee State Hospital in 1953, and described those hallucinations for the doctor. The third factor supporting the diagnosis was the defendant’s hazy and dreamlike description to Dr. Ziporyn of the incident on December 26, 1962, which Dr. Ziporyn testified was, “characteristic of what you frequently see in chronic schizophrenia.”

Defendant also relies upon Dr. Ziporyn’s answer to a hypothetical question in support of his contention that the evidence raised a reasonable doubt as to his sanity. The trial court subsequently ordered stricken the answer of Dr. Ziporyn to this question. Defendant challenges this ruling; but since we feel that ruling was proper (see discussion infra), we cannot include that answer in considering the evidence as to defendant’s sanity.

Considering the record as a whole, we conclude that the defendant failed to raise a reasonable doubt as to his sanity to rebut the presumption that he was sane at the time of the robbery. His actions on that night do not seem peculiar to us; his testimony as to “amnesia” is open to serious question; and the testimony of Drs. Haines and Ziporyn offers little if any support for the contention that the defendant was insane on December 26,1962.

We turn next to the problem of the striking of Dr. Ziporyn’s answer to a hypothetical question put to him by defense counsel. He was asked, during direct examination, whether a hypothetical person, whose actions and history were as described in the question, had been afflicted and a victim of a mental defect of any nature. The Assistant State’s Attorney’s objection was overruled, and Dr. Ziporyn answered, “My opinion is that this is an individual with a chronic mental defect and that it is entirely within the realm of medical possibility that at any given point he could be operating under the influence of such defects.” On cross-examination, however, Dr. Ziporyn said, “The fact of the matter is, as we all know, the question of the hypothetical situation is a legal fix and I was aware that we were talking about this particular individual with this particular history, and my answer is based in terms of the fact that this hypothetical question applies to him and what I know about him.” By this statement, Dr. Ziporyn admitted that his answer to the hypothetical question had been based not only upon facts stated in the question, but also upon other facts within his own knowledge not enumerated for the court. An answer to a hypothetical question based partly on facts gleaned apart from the trial and not included in the question should be stricken. 32 CJS Evidence § 557 (1964). Immediately after this statement was made by Dr. Ziporyn, the Assistant State’s Attorney moved that his answer to the hypothetical question be stricken. The motion was granted, and the question was never reframed or asked again by defense counsel. In view of Dr. Ziporyn’s candid admission as to the basis for his answer, we conclude that the order of the court was proper.

There is a further reason for striking Dr. Ziporyn’s answer to the hypothetical question. In the statement of the question, one of the facts to be assumed was, “. . . and on January 23rd, 1963, upon a sanity hearing was pronounced by Dr. Haines as suffering from — Dr. Haines stated that he would be grouped as a schizophrenic. ...” No mention was made in the question of the fact that Dr. Haines’ finding was of a suspected schizophrenic reaction, or of the fact that Dr. Haines later concluded that this finding had been incorrect. The question thus misstated the original finding and omitted highly relevant later findings. In Opp v. Pryor, 294 Ill 538, 128 NE 580, the Court stated,

If the evidence as to the particular matter inquired about is not disputed it is obvious that the hypothetical question must contain all the facts or the opinion will not only be worthless but be likely to mislead the jury. If counsel selects from the undisputed facts those which are most favorable to his party and obtains an opinion thereon, the jury may forget the partial nature of the premises and adopt the opinion of the witness on the partial statement. (I Wigmore on Evidence, sec 682.) (294 Ill at 546).

The hypothetical question’s misstatement and incomplete statement of Dr. Haines’ findings is therefore an alternative basis for the court’s ruling striking the answer.

Defendant’s final contention is that the trial judge erroneously permitted three lay witnesses to testify in rebuttal over defense counsel’s objection that the rule of exclusion of witnesses had been invoked and these witnesses had been allowed to remain in the courtroom after testifying the first time. The testimony of which the defendant complains is that of Gillman and two police officers, wherein they stated that on the basis of their observation of the defendant on December 26, 1962, in their opinions, the defendant was sane. In People v. Fiorito, 413 Ill 123, 108 NE2d 455, our Supreme Court considered this question and stated that permitting a witness to testify again in rebuttal despite the fact that he violated the rule of exclusion is discretionary and not necessarily prejudicial. The court held that unless the defendant shows actual prejudice no abuse of discretion is shown and it is not prejudicial error. 413 Ill at 131. Defendant in this case has not made any such showing, and we fail to see how the rebuttal testimony of Gillman and the police officers could have been affected by the testimony which they were permitted to hear.

The defendant, pro se, has filed a petition in this court wherein he generally contends that the appointed counsel who represented him at trial was so incompetent that he was denied a fair trial. We have carefully reviewed the record and in our opinion it fails to establish that his appointed counsel was incompetent.

For the foregoing reasons the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE KLUCZYNSKI.

text:
    Violet Cross, Plaintiff-Counter Defendant, Appellant, v. Paul Cross, Defendant-Counter Plaintiff, Appellee.
    Gen. No. 50,666.
    First District, First Division.
    July 25, 1966.
    Rehearing denied August 15, 1966.
    Edward Stasukaitis, of Chicago, for appellant; Murray R. Haddon and Louis Z. Grant, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE KLUCZYNSKI.

Not to be published in full.


text:
    Emmy S. Butterman, Appellant, v. Martha Chamales, Executrix of the Estate of Peter J. Chamales, Deceased, et al., Appellee.
    Gen. No. 50,836.
    First District, First Division.
    July 25, 1966.

      Emmy S. Butterman, pro se, of Chicago, appellant.
    Wiles, Johnson & Barrington, and Howard, French and Healy, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This appeal concerns the dismissal of a claim filed by-Emmy S. Butterman against the estate of a deceased attorney, Peter J. Chamales, and against the decedent’s surviving partner in the practice of law. Claimant alleged that in May of 1962 she employed the decedent, paying him a retainer fee of $500, to pursue in her behalf litigation then pending in the Circuit Court of Cook County against a stock brokerage firm. In her original claim she charged that, "through want of care and good faith, and/or wilful neglect,” decedent did not answer the trial call for the case, resulting in its dismissal for want of prosecution, and that decedent also failed to file a suit on claimant’s behalf in the Federal District Court, permitting the statute of limitations to run. In her original claim against Chamales’s estate, she sought "actual” damages in the amount of $27,776.

Martha Chamales, executrix of the estate, moved to dismiss the claim on grounds that a malpractice claim does not survive the death of an attorney; that the claim failed to state facts showing that the litigation which decedent was retained to pursue constituted a good, valid, subsisting cause of action; and that the claim failed to state the basis for the allegation of damages in the amount of $27,776. While this motion was pending, claimant moved to join as a necessary party defendant decedent’s surviving law partner. Martha Chamales moved to dismiss this attempted joinder on grounds that there was no authority to add a living person as a party defendant to a claim against an estate. This motion was granted on October 21, 1964. After requiring the parties to submit briefs on the motion to dismiss the original claim, but without taking evidence, the court entered an order on April 7, 1965, granting the motion to dismiss the claim, and granting leave to the claimant to file an amended claim. That claim, filed April 22, 1965, was based upon a theory of breach of an express contract of retainer, and sought damages in the amount of $30,317.95. Martha Chamales then moved to dismiss the amended claim, alleging that it was a new and different cause of action and therefore was barred because more than nine months had passed since the issuance of letters testamentary on June 9, 1964; that no copy of the contract had been attached to the claim; and that the claim stated no terms of the contract of what actions or in-actions of the decedent allegedly constituted a breach of the contract. The amended claim was dismissed by order of April 28, 1965. Claimant has brought this appeal, pro se, from the orders dismissing her original claim, dismissing her amended claim, preventing her from joining decedent’s law partner as a party defendant, and denying her a rehearing.

The basic question presented by this appeal is whether an action for malpractice against an attorney can be commenced after his death and successfully maintained against his estate. At common law, actions in tort did not survive the death of the tortfeasor or of the injured party, Wilcox v. Bierd, 330 Ill 571, 583, 162 NE 170; while actions for breach of contract survived the death of either party thereto, First Nat. Bank of Danville v. Taylor, 329 Ill App 49, 55, 67 NE2d 306. In most jurisdictions, including Illinois, this sharp line of demarcation has been altered by statutory enactments which provide that certain types of tort actions shall also survive. The Illinois statute on this point is Ill Rev Stats, c 3, § 339 (1963), which reads:

§ 339. Actions which Survive

In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of “An act relating to alcoholic liquors,” ....

It thus appears that unless an action for malpractice against an attorney can properly be characterized as an action in contract, or as one of the tort actions specified in the statute, it does not survive the death of the attorney.

The parties have not called to our attention, nor have we found any Illinois cases considering the question of whether the estate of an attorney can be held liable for his malpractice. In Connors v. Newton Nat. Bank, 336 Mass 649, 147 NE2d 185, the plaintiff brought, “an action of tort against the estate of a deceased attorney at law for damages ‘for the negligence, carelessness and unskilfulness’ of the attorney in the prosecution a claim for injury which the plaintiff entrusted to him,” (147 NE2d at 186). The Supreme Judicial Court of Massachusetts, in applying a survival statute similar in many respects to that of Illinois, concluded that the action could not be maintained against the attorney’s estate because it was not within any of the classifications of tort actions enumerated in the survival statute. We are of the opinion that the same reasoning must govern this case. Claimant cannot maintain that her claim is an action, “to recover damages for an injury to . . . personal property” within the meaning of the Illinois statute, because it has been established since Jones v. Barmm, 217 Ill 381, 75 NE 505, that this provision of the statute applies, “only to actions for damages to tangible articles and things movable, — to chattels. . . .” (217 III at 383.) Nor is there any other classification of tort actions enumerated in the statute upon which claimant can rely. The action therefore does not survive the death of the attorney.

Claimant contends, however, that Chamales’s failure to answer the trial call in one case or to file suit in the other constituted a breach of his contract of retainer, and therefore subjected his estate to liability in a contract action. We do not agree. In People ex rel. Powles v. County of Alexander, 310 Ill App 602, 35 NE2d 92, the court held, “In determining whether a cause of action survives to the personal representative, the real nature or substance of the right or claim for which the suit is brought must control,” (310 Ill App at 605, 606). While Chamales’s duty to claimant in this case was created by their contract of employment, the claim for damages for the violation of that duty was grounded more upon Chamales’s alleged negligence and carelessness than upon his failure to achieve the result for which the parties had contracted. The claim was therefore subject to the rules governing the survival of actions in tort, and did not survive the death of the attorney.

In view of our holding that the Estate of Peter J. Chamales cannot be held liable for damages resulting from his alleged malpractice, it is clear that any claim against his surviving law partner cannot be enforced by means of a claim filed against Chamales’s estate, and claimant’s motion for joinder of that partner was properly dismissed. Our holding also makes it unnecessary for us to consider defendant’s contentions, first, that the claim did not state a cause of action because it did not adequately allege the existence of a valid underlying claim against the stock brokerage firm; and second, that the amended claim stated a new and different cause of action, and was therefore barred because it was filed too late.

The judgment of the Probate Division of the Circuit Court of Cook County is therefore affirmed.

Judgment affirmed.

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


author: SMITH, J.

text:
    Etta Mae Webb, Plaintiff-Appellee, v. Quincy City Lines, Inc., Defendant-Appellant.
    Gen. No. 10,694.
    Fourth District.
    July 25, 1966.
    Rehearing denied August 23, 1966.
    Moran, Klockau, McCarthy, Schubert & Lousberg, of Rock Island (Frank G. Schubert and Robert L. Ellison, of counsel), for appellant.
    Pollock & Ennis, of Quincy (John T. Ennis, of counsel), for appellee.
   SMITH, J.

This case presents a twofold proposition: (a) Is testimony of plaintiff’s psychiatrists admissible in a personal injury suit when offered by the defendant or is it privileged under our statute, and (b) if it is privileged, does plaintiff waive the privilege when she seeks damages for pain and suffering in a personal injury suit? An affirmative answer to (b) makes a positive answer to (a) unnecessary.

At the outset we pause to observe that counsel have made some personal observations about each other in the briefs. The all too frequent occurrence of this practice causes us to observe that we necessarily conclude that they are probably both right and the printing of such matter is an expensive exercise for their clients without any observable benefit to this court. We would caution that, in an appropriate case, briefs might be stricken sua sponte.

The statute, Ill Rev Stats 1965, c 51, § 5.2, so far as here pertinent reads as follows:

“In civil and criminal cases, in proceedings preliminary thereto, and in legislative and administrative proceedings, a patient or his authorized representative and a psychiatrist or his authorized representative have the privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental condition between patient and psychiatrist, or between members of the patient’s family and the psychiatrist, or between any of the foregoing and such persons under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis or treatment.
“There is no privilege under this Section for any relevant communications
“(a)----
“(b)----
“(c) in a civil or administrative proceeding in which the patient introduced his mental condition as an element of his claim or defense or, after the patient’s death, when his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient. . . .”

Plaintiff was injured in her shoulder and arms when caught in defendant’s bus door. She alleged that she is “sick, sore, lame and disordered and permanently injured.” Both she and her physician testified to her pain and suffering. Dr. Manfred Kydan, a licensed physician, specializing in psychiatry, was called in as a consultant by her attending physician. He was not called by plaintiff as a witness. When called by the defendant, plaintiff’s counsel objected to testimony as to the results of the doctor’s examination because it was privileged under our statute. This objection was sustained and an offer of proof rejected. The offer of proof shows the doctor would have testified substantially as follows:

“This 51 year old woman appears somewhat hostile and mildly depressed, however, she is rational and relevant and responds quite readily during the interview. I do not see evidence of deepseated pathology. We are probably dealing with an adult situational reaction. Patient had been involved some time ago in an accident whose after-effect she apparently magnifies and derives some unconscious secondary gain from some degree of invalidism, however, I do not see any need for extensive further care in the hospital from the psychiatric point of view. Patient might benefit from some psychological counseling, however, has no insight into the aspects of her situation and probably will not accept the help of a psychiatrist.”

Defendant first urges a construction of the phrase “mental condition” to include any state of mind or feeling in a patient including pain and suffering; that by presenting testimony of her pain and suffering, plaintiff put her “mental condition” into issue as an element of her claim and in so doing is squarely within § 5.2 which bars the claim of privilege where mental condition is an element of the claim or defense. Stated another way she has waived her privilege. To hold otherwise, it is said, is to exclude evidence indicating a malingering and exaggerating plaintiff without corresponding public benefits. In a well considered opinion, the trial court held that the privilege statute applied, excluded the testimony of the psychiatrist and observed that the beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny only when she and her psychiatrist have failed to claim the privilege or have made “mental condition” a part of the claim or defense affirmatively. Does a claim for pain and suffering waive the privilege or ipso facto place the mental condition of plaintiff in issue? We think not.

One’s condition is one’s state of health. We refer to the physical or mental condition of an individual and usually mean the state of health of one’s body or mind, as the case may be, or both, if we so specify. Recognizing as we do the intertwining of both and the correlative effect of the one on the other, we find it difficult to conclude that one undergoing pain and suffering suffers deterioration in mental condition. Nor do we think that in either alleging or considering pain and suffering originating in physical trauma we ipso facto have trauma affecting the mentality. We would further note that the legislature differentiates between the general physician-patient statute, Ill Rev Stats 1965, c 51, § 5.1, and the psychiatrist-patient statute by providing that in any conflict between the two, the provisions of § 5.2 shall control. We think we are under compulsion, therefore, to read § 5.2 literally and to hold that the privilege exists unless “mental condition” is specifically made a part of either the claim or defense. It was not so placed in issue here.

Practical considerations are persuasive. Exaggerations of pain and suffering, no matter how well intentioned, and ballooning of personal injuries, no matter how honestly believed, are frequently the common denominator of personal injury suits. To now open a Pandora’s box of inquiry into the mental condition of the claimant where it is not specifically made a part of the claim or defense is to permit time consuming excursions into the hinterlands of speculation and to lose sight of the main event in the big tent while fiddling around with the side shows. Definitive issues are the necessary forerunner of an expeditious and efficient trial. Pain and suffering to a greater or less degree is the common experience of mankind. Juries understand it. We doubt that any psychiatric apple polishing will aid it nor that psychiatrics have any safer yardstick than now employed —except where mental well being is specifically an issue and is made so by the pleadings.

It is clear, therefore, that the objection to the offered testimony was properly sustained and that the plaintiff by her pain and suffering has not waived the privilege granted to her by the statute. Having answered both issues in tandem the judgment is affirmed.

Affirmed.

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


author: CRAVEN, J.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. James McClelland, Defendant-Appellee.
    Gen. No. 10,673.
    Fourth District.
    July 25, 1966.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield, for appellant.
    Olsen, Cantrill & Miller, of Springfield, for appellee.
   CRAVEN, J.

The defendant was indicted, tried and convicted of five counts of a 20-count indictment. After a verdict of guilty, the court granted the defendant’s motion in arrest of judgment. This is an appeal by the State from the order entered arresting judgment.

The motion in arrest claimed numerous errors in the trial proceedings, asserting error in instruction of the jury, admission of evidence, sufficiency of the proof and other matters not cognizable in a motion in arrest of judgment. Such a motion is limited in scope and, by statute, reaches only the two questions of whether the indictment states an offense and whether the court has jurisdiction of the cause. Ill Rev Stats 1963, c 38, § 116-2; see also People v. Bridges, 67 Ill App2d 236, 214 NE2d 539 (1966).

The only portion of this lengthy motion in arrest of judgment that is within the statutory limitation is the claim that the indictment failed to state a cause of action against the defendant in that it failed to specify the time and place of the offense as nearly as could be done within the language of § 111-3, c 38, Ill Rev Stats 1963. It is apparent, although not expressly stated, from this record that the action of the trial court in arresting judgment was based upon the holding of this court in People v. Blanchett, 55 Ill App2d 141, 204 NE2d 173 (1965). On further appeal to the Supreme Court, the holding of this court was reversed and an indictment alleging an offense specifying only the county as to the place of the offense was upheld. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

In view of the ultimate holding of the Supreme Court, the action of the circuit court of Sangamon County in granting the motion in arrest of judgment must be reversed and the cause remanded to that court for further proceedings.

Reversed and remanded.

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


text:
    Rodney L. Carlson and Carol Ann Carlson, Plaintiffs-Appellants, v. Robert Dean Oberling and Pamela Kay Oberling, Defendants-Appellees.
    Gen. No. 10,704.
    Fourth District.
    July 25, 1966.

      Penick, Wooleyhan & Nielson, of Quincy, for appellants.
    William Brown, guardian ad litem, Schlagenhauf and Brown, of Quincy, for appellees.
   CRAVEN, J.

This proceeding was instituted by the filing of a petition for adoption by a mother and stepfather to adopt the mother’s four-year-old daughter by a prior marriage. The father, who had also remarried subsequent to the divorce, was a defendant below but filed no appearance in this court.

In cases where the appellee files no brief or appearance in this court, the prayer of the appellants that the judgment below be reversed could be allowed. In this case we have determined that, in order to do substantial justice, the matter must be considered on the record and brief of the appellant. See Zaidenberg v. Occidental Life Ins. Co., 65 Ill App2d 305, 212 NE2d 526 (1965) and cases there cited.

After a hearing on the petition and a consideration of the position of the guardian ad litem for the minor daughter, the court denied the adoption, and this appeal is from that order.

There is no question in this case as to the fitness of the mother, the stepfather, the home or the environment. The record establishes and the circuit court found no objection to the adoption insofar as it relates to the fitness of the petitioners as adoptive parents.

The only question here for review is whether the defendant father was guilty of abandoning the child, deserting her, or was so guilty of neglect as to warrant the termination of his parental rights by granting the petition for adoption.

The record, as it relates to these areas of inquiry, establishes that the mother and father were divorced in 1962 upon the grounds of adultery committed by the father. Custody of the daughter was awarded the mother. Support payments of $17.50 per week were included in the decree of divorce. During the interval between the divorce and the petition for adoption in 1965, the father made only some five months of child-support payments. On one occasion, unsuccessful contempt proceedings were initiated in the divorce action to compel payment.

In other respects the record establishes that the defendant regularly visited his daughter and generally conducted himself properly in regard to his child. He maintained insurance policies on the life of his daughter and, on occasion, sent her gifts.

The circuit court filed a most helpful and comprehensive statement of its action and the legal and evidentiary reasons therefor. It was the conclusion of that court that the question presented in this case for decision was “whether or not the defendant’s complete failure of support is sufficient to constitute desertion under adoption statutes of this state.” The court concluded on this record that it was not, although expressing the opinion that the defendant had come “frightfully close” to having his rights as a parent extinguished.

In Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 158 NE2d 613 (1959), the Illinois Supreme Court considered the question here involved and discussed the natural rights of the parents in relation to the welfare and best interest of the child. In a concurring opinion, three members of the court expressed the view that parents must be found unfit before their child may be taken from them against their will. The concurring opinion concluded with the observation that the right of natural parents is superior to that of any other person and that the child should not be removed to a more suitable environment absent a determination that the parents were unable or unwilling, either materially, morally, or emotionally, to give the child care, affection and support.

Subsequent to that opinion of the Supreme Court, the legislature adopted the Adoption Act of 1959 (par 9.1-1 et seq., c 4, Ill Rev Stats 1965). In paragraph 9.1-15 of that act there is a legislative declaration that the welfare of the child shall be the prime consideration in all adoption proceedings. Elsewhere in the act there are references to “abandonment,” “neglect” and “desertion.”

The case of Houston v. Brackett, 38 Ill App2d 463, 187 NE2d 545 (1963), involved facts somewhat similar to those in this case. The court there affirmed an order of the circuit court granting the prayer of the petition for adoption. In that case the natural father was in default on support payments, had seen the children sought to be adopted only at the time the divorce was granted and some four times in a year when he was found guilty of contempt for failure to supply support. In that case, unlike this one, the father had maintained little contact with the family and was found unfit by the trial court.

In Thorpe v. Thorpe, 48 Ill App2d 455, 198 NE2d 743 (1964), this court reversed an order of the circuit court denying adoption and discussed the question of desertion and abandonment as those terms are used in the Adoption Act. “Desertion” was described as action by a parent that would indicate an intention to terminate custody permanently but not to relinquish all parental duties and claim to the child. “Abandonment” was described as conduct on the part of a parent which evinces a settled purpose to forego parental duties and relinquishes all parental claims to the child. In both, intent and an examination of the conduct toward the child are proper areas of judicial inquiry.

Measuring the facts in this case by the definitions in Thorpe, there is neither an abandonment nor a desertion, nor can we say that there is neglect as contemplated by the Adoption Act.

In so concluding, neither this court nor the circuit court can be unmindful of the legislative declaration that in adoption proceedings the welfare of the child shall be the prime consideration. In this case the mother has custody of the child. The father has not relinquished all parental interest, but rather has maintained those interests. He is delinquent in his support payments. Failure to supply support under the facts of this case, however reprehensible, does not necessarily, and for that reason alone, mean that the parental rights would be extinguished by adoption.

In the difficult area of judicial inquiry as to what is the best interest of a child, it is agreed that the correctness of the trial court’s determination should not be disturbed unless it is palpably against the manifest weight of the evidence. Houston v. Brackett, supra; Campbell v. Fisher, 28 Ill App2d 454, 171 NE2d 810 (1961).

The decision of the circuit court of Adams County denying this petition for adoption cannot be said to be against the manifest weight of the evidence. The judgment of the circuit court is affirmed.

Affirmed.

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


text:
    Town of Bloomington, Plaintiff-Appellant, v. John W. Murphy, Defendant-Appellee.
    Gen. No. M-10,718.
    Fourth District.
    July 25, 1966.

      Campbell, Markowitz & Lawrence, of Bloomington (William B. Lawrence, of counsel), for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Whedon Slater and William C. Wetzel, of counsel), for appellee.
   CRAVEN, J.

The town of Bloomington filed a complaint in the magistrate division of the circuit court of McLean County charging the defendant with a violation of an ordinance of the township relating to the regulation of junk dealers and dealers in secondhand articles, including automobiles. Specifically, the defendant was charged with violating the ordinance by dealing in junk and in the operation of a junkyard on an abandoned railroad right-of-way in violation of the ordinance.

The ordinance purports to regulate and license junk dealers and provide procedures for payment of fees and the making of application for license. Conduct of the regulated business without a license is prohibited, as is the operation of a junkyard on an abandoned railroad right-of-way at any location in the township. The ordinance as adopted by the electors of the township at the town meeting in April of 1954. Paragraph 39.12, e 139, Ill Rev Stats 1953, provided that electors at the town meeting shall have the power to authorize the licensing and regulation and direction of the location of all places of business of dealers in junk by appropriate ordinance.

The cause was dismissed on motion of the defendant. The assigned basis for the dismissal was that the ordinance had no real and substantial relationship to the public health, safety, morals or general welfare, and further that the ordinance was violative of the equal-protection clause of the Fourteenth Amendment to the Constitution of the United States.

Turning first to the procedural question raised by this appeal, we believe it now to be established that the alleged violation of a penal ordinance charged in a complaint is the charge of an offense within the meaning of § 102-15 of e 38, Ill Rev Stats 1963. The action by the court in dismissing this complaint is, therefore, appeal-able and within the purview of Supreme Court Rule 27. Ill Rev Stats 1965, c 110, par 101.27; see also City of Gibson City v. McClellan, 61 Ill App2d 218, 209 NE2d 363 (1965).

As to the merits of this controversy, counsel are in agreement that this legislative delegation of power to townships is one involving the exercise of the police power and its validity is to be measured not by whether the ordinance is deemed to be wise but whether it has a rational relation to public health, safety, morals or general welfare. City of Aurora v. Burns, 319 Ill 84, 149 NE 784 (1925); Frost v. Village of Glen Ellyn, 30 Ill2d 241, 195 NE2d 616 (1964).

Counsel, at the time of oral argument, observed that the town of Bloomington was a rural township with an abandoned railroad in it and, although this does not appear in the record, the geography of a political subdivision is a matter that may be judicially noted. Is it reasonable to prohibit the operation of a junkyard on an abandoned railroad right-of-way in a rural township and concurrently to permit the operation of a junkyard, subject only to licensing, everywhere else in the township? It is our conclusion that this inquiry must be answered in the negative.

The defendant in this case does not dispute the right to regulate but only asserts that the regulation must not be arbitrary or unreasonable. Neither this court nor the defendant has undertaken the affirmative of a proposition relating to the desirability of a junkyard as distinguished from its necessity. To provide by ordinance, however, that a junkyard, with all of its attendant undesirable attributes, may be located anywhere in a township except on an abandoned railroad right-of-way appears to us to be patently unreasonable and arbitrary. Such an ordinance appears more aimed at the geography of the township and the likelihood of the location of junkyards rather than at promoting the health, safety and welfare. The ordinance cannot be said to have been based on the studied consideration of the several factors enumerated in Gordon v. City of Wheaton, 12 Ill2d 284, 146 NE2d 37 (1957).

As counsel for the appellant observed in their brief, if the township had authority to zone its land uses —which, of course, it doesn’t — it might well be reasonable and valid to zone abandoned rights-of-way of railroads the same as neighboring land. Being thus classified the same as the abutting land in a rural township, such as Bloomington township, it would probably be agricultural or residential classification. We agree with that observation and believe it untenable that an ordinance, under the guise of regulating junkyards, may be permitted to stand which prohibits a junkyard on a long, narrow strip of land in a rural township without any reasonable basis for so distinguishing the land from that abutting it or, indeed, that throughout the rest of the township.

Having concluded that the ordinance, as here sought to be enforced, is invalid, it is unnecessary to discuss the equal-protection views advanced by the parties.

The judgment of the magistrate division of the circuit court of McLean County was correct and is affirmed.

Affirmed.

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