author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Hill, Defendant-Appellant.
    Gen, No. 51,954.
    First District, Second Division.
    September 17,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

Defendant was charged with theft by deception. Ill Rev Stats (1965) c 38, § 16-1 (b). A jury found defendant guilty of the crime charged, and he was sentenced to the Illinois State Penitentiary for three to eight years. Defendant appeals to this court, alleging three errors: (1) that the closing argument of the state’s attorney was prejudicial; (2) that he was unduly limited in his cross-examination by not being supplied with a statement of the complaining witness; and (3) that evidence of separate and subsequent offenses was improperly introduced and admitted into evidence.

The complainant testified that she met the defendant about noon on the 18th day of April, 1966, at 43rd and Prairie, Chicago. She had never seen him prior to this occasion. Defendant told her that he had just arrived from Algeria, that he was a stranger to Chicago, and that he was looking for a place to stay. Another man passed, and was asked by defendant if he knew of an apartment. Defendant asked complainant if she knew the other man, and she replied that she did not. The two men, after walking down the street a while, took the complainant into a vestibule, where defendant took $163 from the complainant’s pocket, stating that he was going to put his money with hers for safekeeping. Defendant left for a moment, returning with a balled-up handkerchief which he put in complainant’s bosom. After walking some more, defendant stated to complainant that he was going to get his things and that he would come back to her house to pick up his money. After both men left her, complainant discovered that the handkerchief contained newspaper rather than money.

The State called three other witnesses who were victims of defendant’s deception. The facts of all the occurrences were substantially similar. Defendant would state that he was looking for a place to stay, that he had just come into Chicago, and that he had a substantial sum of money. He would then ask the witness if she would hold his money with hers for safekeeping while he went to get his things. He would leave the presence of the witness for a while, return with a balled-up handkerchief which he put in the victim’s bosom. Shortly after the occurrence, all the witnesses would discover that their money was gone. These three occurrences took place at least a month after the crime with which defendant was charged. Defendant did not testify, and no further evidence was presented.

Defendant’s first contention on appeal is that the closing argument of the state’s attorney was prejudicial in that he expressed his own opinion of defendant’s guilt. In closing argument, the state’s attorney said:

“I’m sure, ladies and gentlemen, based on what you have heard from the witness stand, over the last two days, you probably have already made up your mind as to the guilt or innocence of the defendant. The guilt of the defendant may be obvious to we attorneys, as we listened to the case. To you lay people sitting on a jury, perhaps some of the things which you have heard from the witness stand were a little bit dubious or unclear. For that reason I would like to clarify a few little things.”

Defendant’s counsel made no objection at the time the remarks were made.

A prosecutor may not express his personal opinion as to the guilt of the defendant as such an opinion leaves the impression that it is based upon factors not in evidence. People v. Provo, 409 Ill 63, 97 NE2d 802 (1951); People v. Anderson, 406 Ill2d 585, 94 NE2d 429 (1950). However, the prosecutor may express such an opinion when it is based solely on the evidence in question. People v. Jackson, 35 Ill2d 162, 220 NE2d 229 (1966). In People v. Williams, 26 Ill2d 190, 186 NE2d 353 (1962) the state’s attorney in his closing argument stated “. . . coupling all that with statements made by defendant, I think that when you go back there, you will reach the same conclusion that we have reached, and that is that Eddie Williams is guilty of murder.” In holding that such a statement was not prejudicial, the court stated at page 193:

“It is, however, proper for a prosecutor to argue or express his opinion that the accused is guilty, where he states, or it is apparent, that such opinion is based solely on the evidence.”

It is clear that the opinion expressed by the state’s attorney in the instant case was based on the evidence, and the statement did not suggest that it was based on his personal knowledge of material at his disposal which had not been introduced in evidence. As he stated, his opinion was reached as he “listened to the case.” The remarks were proper.

The defendant next argues that he was unduly limited in his cross-examination because he was not furnished a copy of a statement made by the complaining witness. During the cross-examination of the complainant, the following colloquy took place:

“Q. Did you talk to the police about this ? Did you sign any statement at the police station?

“A. Yes. I signed — I called the police officers.

“Q. Did you sign a statement ?

“A. Yes, I did.

“State’s Attorney: Will counsel clarify what he means by ‘statement?’

“Defense Attorney: I think you know what I mean by a statement.

“State’s Attorney: For the record, your Honor, this witness has signed no written statement.

“Second State’s Attorney: She signed a complaint. She didn’t sign any statement.

“Defense Attorney: She just said she signed a statement, counsel.

“State’s Attorney: Does the witness know what is meant by a statement ?

“The Court: Ask her.

“Defense Attorney: Q. Did you tell the police officer what happened ?

“A. Yes, I told the police officer.

“Q. Then he put it down in writing ?

“A. Who ? The police officer ?

“Q. Yes.

“A. Yes, he did.

“Q. Did you sign it ?

“A. I don’t know whether I signed it or not. I know I signed it because—

“Q. Did the police officer ask you a series of questions and answers ?

“A. Yes. How he looked.

“Q. And, as you told him the answers, was he writing it down ?

“A. Yes he did.

“Q. After he got finished doing that, did you sign it ?

“A. Yes, I guess I did.

“Defense Counsel: I believe the witness is referring to a signed statement.

“State’s Attorney: We have no signed statement in our possession.

“The Court: The State will go into this on re-direct.

(The following took place out of the presence of the jury.)

“The Court: Do you have the complaint here?

“State’s Attorney: The complaint itself? No.

“The Court: You can show it to the witness.

“State’s Attorney: We have the officer here, if the court wants to ask him.

“The Court: As long as you clear it up for the record. Don’t leave it in this condition.

“State’s Attorney: No. We will ask the officer if there was a statement.”

After this discussion, no other testimony was adduced nor any comment made during the remainder of the trial as to the existence of a prior statement of the complainant.

Defendant is entitled to the production of a prior statement after a showing that such a statement exists. People v. Neiman, 30 Ill2d 393, 197 NE2d 8 (1964). However, the defendant must first lay a foundation that the statement of the witness exists. People v. Golson, 37 Ill 2d 419, 226 NE2d 610 (1967); People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960).

Defendant failed to establish the existence of any prior statement made by the complainant. It is evident from the testimony that the witness was not sure as to what she had signed, and the State repeatedly denied having any such statement in its possession. Defendant did not request that the court inspect the police file nor did he call any of the arresting officers to determine the existence of a statement. In fact, during trial, the defendant did not request that the State produce the statement. He can not now claim that his cross-examination of the complainant was improperly restricted.

Defendant finally contends that evidence of other crimes was improperly admitted, objecting to the testimony about offenses which occurred approximately one month after the crime with which he was charged.

It is the general rule that evidence that a defendant had committed a crime, independent of the one charged, is not admissible, but there are exceptions to this rule, and among such exceptions is that of the proof of other crimes tending to establish motive, intent, absence of mistake or accident, identity, and a common scheme or plan so connected that proof of one tends to prove the accusation. People v. Priola, 395 Ill 269, 70 NE2d 46 (1946).

Defendant concedes that similar offenses which occurred prior to the alleged crimes may be introduced into evidence to show intent, but argues that offenses which occurred subsequent to the alleged crime are inadmissible, citing People v. Chronister, 379 Ill 617, 41 NE 2d 750 (1942); People v. Moshiek, 323 Ill 11, 153 NE 720 (1926), which so held. The rationale of those cases was that proof of offenses subsequent to the alleged crime was contrary to the presumption of innocence, and could not establish a guilty intent on a prior occasion. However, in People v. Lehman, 5 Ill2d 337, 125 NE2d 506 (1955), the court allowed evidence of other armed robberies committed subsequent to the offense charged. In that case, the court stated:

“Defendant suggests that a distinction is to be drawn between prior and subsequent offenses. There are decisions making that distinction where the question at issue is one of knowledge or intent. But here the question is whether the defendant’s conduct evidenced a peculiar plan to commit a particular offense, and we see no reason to exclude conduct occurring subsequently.”

The Supreme Court allowed evidence of other offenses preceding and following the one charged in a prosecution for a confidence game. People v. Glenn, 415 Ill 47, 112 NE2d 133 (1953). The court also allowed evidence of subsequent offenses in an indecent liberties prosecution. People v. Richardson, 17 Ill2d 253, 161 NE2d 268 (1959).

In the case at bar, the state’s attorney stated in closing argument:

“The only purpose for presenting to you these other three witnesses was to show you the intent of the defendant, ... to show you that in each case Mr. Hill acted in a similar manner to arrive at a similar result.”

Furthermore, the court instructed the jury that:

“. . . proof of the commission of other crimes is proper for the sole purpose of showing intent and a common scheme or design. Except for that limited purpose, proof of other crimes is not to be accepted by the jury as evidence of guilt of the offense charged in the indictment.”

Under the reasoning of People v. Lehman, supra, the evidence of other offenses was admissible to show a common scheme. The subsequent acts were almost identical to the charge of theft by deception for which he was tried. Evidence which tends to show a common design in a sequence of crimes necessarily must tend to show the intent of the defendant, since it is difficult to conceive of a common design without intent. The jury was cautioned by the Court and by the prosecutor as to the limited purpose of the evidence. The evidence was properly received.

For the foregoing reasons, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: GOLDENHERSH, J.

license: Public Domain

text:
    The Hearst Corporation, a Corporation, Plaintiff-Appellant, v. Associated Trade Press, Inc., a Corporation, Defendant, and James R. Compton, Defendant-Petitioner-Appellee.
    Gen. No. 51,964.
    First District.
    August 5, 1968.

      Arthur Abraham and Kurt J. Salomon, of Chicago, for appellant.
    Eugene F. Welter, of Chicago, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Cook County in the amount of $750 entered upon allowance of the petition of defendant, James R. Compton, based upon section 41 of the Civil Practice Act (c 110, sec 41, Ill Rev Stats 1967) seeking the taxing of attorney’s fees and expenses.

Defendant’s petition states that the court allowed successive motions to strike plaintiff’s original and first amended complaints; defendants moved to strike plaintiff’s second amended complaint; the court denied the motion with respect to the corporate defendant, and as to the defendant, James R. Compton, it allowed the motion, and dismissed the action with the comment that the second amended complaint stated no cause of action against him; upon the court’s making this statement, counsel for plaintiff (not present counsel) stated that plaintiff knew it had not stated a cause of action against the defendant, James R. Compton, that it had no evidence upon which it could state a cause of action against him, and he was joined as a party defendant for fear that if the court granted an injunction against the corporate defendant, defendant, James R. Compton, might change the name of the corporation and do business under another name.

In its answer, plaintiff did not deny the allegations contained in the petition, but pleaded contentions, which are, in substance, the same as are presented and argued in this appeal.

The trial court entered an order finding that the petition should be allowed and at a later date heard testimony with respect to the value of defense counsel’s services.

Defense counsel testified that defendant, James R. Compton, president of the corporate defendant, retained him to represent both the corporation and himself in the litigation. He stated that the services performed on behalf of both defendants were substantially the same as would have been required in the representation of either defendant, had only one of them been sued. The record shows that defendants, in each instance, filed a joint motion and were represented by the same counsel. He testified that the reasonable value of the work performed was $2,330. The court found that of this sum $750 was to be attributed to services performed for the defendant, James R. Compton, and entered judgment in that amount.

Plaintiff appeals from the judgment, and defendant has cross-appealed, contending that the judgment should have been entered in the amount of $1,165, one-half the sum shown to have been expended for attorney fees.

Plaintiff contends that (a) there can be no recovery under section 41 unless the allegations in the complaint or amended complaints are found to be untrue, (b) the successive motions to strike admitted the truth of the allegations, (c) there was no showing that the allegations were made without reasonable cause and not in good faith, and (d) there was no evidence of any services rendered by defense counsel which related to the dismissal of the complaints as to the individual defendant, James R. Compton.

Defendant contends that section 41 is not to be construed as applicable only to situations involving untrue statements, but is intended to prevent harassment by bringing actions which are vexatious or without legal foundation, or the pleading of frivolous matter. The parties have cited, and this court has reviewed, a number of cases which arose under this section of the Civil Practice Act. In Awotin v. Abrams, 309 Ill App 421, 33 NE2d 179, it was held that there could be no recovery of fees and expenses under section 41 for the reason that although the allegations in the complaint were found to be insufficient when tested by a motion to strike, they were not “untrue” within the meaning of the statute. The court did not further define the term “untrue.”

In Ready v. Ready, 33 Ill App2d 145, at page 161, 178 NE2d 650, the court said “Section 41 is an attempt of the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit. The failure of the courts to apply the sanction provided in this section of the Practice Act has been frequently criticized by writers in the various law reviews.

“One of the purposes of section 41 is to prevent litigants being subjected to harassment by the bringing of actions against them which in their nature are vexatious, based upon false statements, or brought without any legal foundation.”

Prior to making the quoted statement the court said, “The trial court on the motion of the defendant included in the transcript of the record filed in this court certain depositions of Walter Ready, Jr. We must assume that those depositions either were attached to the petition or were considered by the court, and the statements made by the court during the hearing so indicated. From those depositions it is evident that most of the allegations made in the complaint were untrue. The order made by the trial court allowing attorneys’ fees was an exercise of its sound discretion under the statute.”

Under the circumstances, it is not clear to us whether, absent the finding “that most of the allegations made in the complaint were untrue,” the court would have affirmed the judgment.

In Urban v. Brady, 86 Ill App2d 158, 230 NE2d 65, the court rejected a cross-appeal seeking the taxing of fees and expenses under section 41 and in so doing said at page 162, “That section provides for such an allowance where allegations or denials are made without reasonable cause and are found to be untrue. No specific finding of this sort was made by the chancellor and he acted properly in denying the plaintiff’s motion.”

In EIston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill App2d 218, 197 NE2d 143, at page 224 said, “Beady v. Beady (1961), 33 Ill App2d 145, 178 NE2d 650, is the most recent case in which this court passed upon this question. There the court held that the statute was in derogation of the common law, but was at the same time a remedial statute. After reviewing the authorities the court further stated that, under an applicable statute so providing, attorneys’ fees may be taxed as costs where a party has acted in bad faith or has been litigious or has caused the other party unnecessary expense (20 CJS, Costs, § 218a).”

In Schroeder v. Busenhart, 80 Ill App2d 431, 225 NE2d 702, in reversing a judgment and remanding the cause with directions to hold a hearing and tax expenses and fees in accordance with the provisions of section 41, the court said, at page 440, “On the date of filing the complaint none of the above allegations could have been upheld, because the Supreme Court had already determined that the school authorities, not the Schroeders, were the owners of the condemned property at the time in question. Trustees of Schools of Tp. No. 42, Board of Education of School Dist. No. 57, Cook County v. Schroeder, 25 Ill2d 289, 184 NE2d 872. The history of this apparently unending litigation, as set forth in the record before us, contains abundant evidence that plaintiffs knew, or could reasonably be expected to have known, that they were foreclosed from relitigating the question of ownership of the condemned property and matters collateral thereto. While an unfounded claim of ownership might ordinarily not be the kind of statement covered by section 41, it certainly becomes so after repeated judicial determination by the Supreme Court adverse to the claimant. And there is authority for the proposition that where, as here, a suit is dismissed on the ground of res judicata, the sanctions of section 41 will be imposed. Elston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill App2d 218, 197 NE2d 143. We think that the record in this case affords ample justification for a finding that the above allegations of plaintiffs’ complaint were untrue, were made without reasonable cause, and were made in bad faith.”

In Greengard v. Cooper, 78 Ill App2d 86, at page 89, 221 NE2d 775, the court said, “From an examination of the complaint, amended complaint, answer thereto, the discovery deposition of the plaintiff, interrogatories submitted by the defendant and answered by the plaintiff, defendant’s request for plaintiff to admit certain facts and answer to such request, as well as the order on plaintiff’s oral motion for a voluntary nonsuit, we are unable to conclude that the trial court found that the facts pleaded by the plaintiff were untrue, or that the plaintiff, when asserting such facts knew them to be untrue. Such findings are requisite to relief under section 41.”

We have also examined Lipscomb v. Coppage, 44 Ill App 2d 430, 197 NE2d 48, Tomamichel v. Eddington, 55 Ill App2d 387, 205 NE2d 51, Boss v. Coe Inv. Co., 45 Ill App 2d 417, 195 NE2d 735 and Podbielnak v. Podielnak, 60 Ill App2d 357, 208 NE2d 625, cited by defendant, and an article which appears at 54 IBJ 388, and the cases which are therein reviewed. With the exception of Elston-Damen Currency Exchange, Inc. v. Sheon (supra), in every instance in which a recovery was had under section 41, there is a finding, express or implied, that the allegations in question were untrue. In Schroeder v. Busenhart (supra) the court points out that in Elston-Damen the matters alleged were res judicata, and interprets the opinion to hold that a dismissal on the grounds of res judicata justifies taxing fees and expenses under section 41.

The allegations of the complaint applicable to defendant state in substance that he, individually and as an officer, employee and agent of the corporate defendant, is engaged in the business of selling subscriptions to magazines, that he has no contractual relationship with plaintiff and is not its authorized selling agent, that he has engaged in certain practices harmful to plaintiff and plaintiff has asked that he desist from further doing so.

There is no evidence that the allegations are untrue, and defendant makes no such contention. Plaintiff’s counsel did not say the allegations were untrue — the petition states that he said he had no evidence upon which to state a cause of action. The defendant, James R. Compton, was admittedly the president of the corporate defendant, and without evidence, there is no basis for a finding that the allegations in the complaint were made without reasonable cause and not in good faith.

Furthermore, there is no evidence that any expenses were actually incurred by James R. Compton. The cases cited by defendant are authority for the proposition that if parties voluntarily avail themselves of services rendered by an attorney, they become jointly and severally liable for the value of such services. There is no proof that defendant, James R. Compton, had paid, or was expected to pay, any part of the attorney’s fee and as above stated, the record shows that his joinder as a defendant occasioned no additional work on the part of the attorney.

We conclude, therefore, that the defendant has failed to prove the elements necessary to an award under section 41 of the Civil Practice Act, and the judgment is reversed. Because of the conclusion reached, it is unnecessary to consider defendant’s cross appeal.

Judgment reversed.

MORAN and EBERSPACHER, JJ., concur.


author: MORAN, J.

text:
    In the Matter of the Estate of John Kuntz, Deceased, Clarence Kunz, et al. (Petitioners Below), Appellants, v. Daniel P. Ward, State’s Attorney of Cook County, Illinois, et al. (Respondents Below), Appellees.
    Gen. No. 51,975.
    First District.
    August 5,1968.

      Sherwin J. Malkin, Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago, and James W. Richardson, Nack, Richardson & Nack, of Galena, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Donald J. Veverka, Assistant State’s Attorney, of counsel), for appellees.
   MORAN, J.

This appeal arises in connection with a petition filed by the alleged heirs of the decedent, John Kuntz, to reopen his estate for the purpose of amending a court finding of lack of heirs, and receiving proof of the correct heirs of decedent. After a hearing the trial court entered an order denying the petition to reopen the estate and to amend its finding of heirship and subsequently also denied the motion of petitioners to vacate the order denying said petition.

On June 25, 1966, the alleged heirs of John Kuntz, deceased, filed a petition to reopen his estate and to amend heirship, alleging:

“1. That the above decedent died a resident of Cook County, Illinois, leaving a Last Will and Testament which was admitted to probate on the 8th day of July, 1953 without notice to any of the petitioners.

“2. That the Last Will and Testament provided that the entire estate would pass to five beneficiaries therein or the survivor of them, all of whom filed renunciations in this Court.

“3. That by operation of law the assets in the estate became intestate property.

“4. That the heirship of the decedent is as follows:

“5. That on the 27th day of January, 1956 the Executor herein, having found no heirs, paid the balanee of the estate in the amount of $112,256.46 to the Treasurer of Cook County, Illinois, and on the 31st day of January, 1956 said Executor filed a Final Account herein whereupon the above-entitled Estate was closed.

“6. That on the 1st day of October, 1962, on Petition of the State’s Attorney of Cook County, Illinois and without notice to petitioners herein, the heir-ship in the above-entitled estate was amended to show ‘No Known Heirs.’

“7. That the above-entitled estate should be reopened to amend the proof of heirship herein showing the correct heirs of decedent, to obtain the assets erroneously and wrongfully paid over to the Treasurer of Cook County, Illinois, and to distribute said assets to the heirs at law of decedent in accordance with the Probate Act and Statute of Descent and Distribution as therein provided.”

The State’s Attorney’s Office of Cook County filed an answer in which it admitted all of the allegations of the petition except paragraphs 4 and 7, which it denied.

After a hearing, the trial court denied appellants’ petition to reopen the estate and to amend heirship and this appeal followed.

We do not consider the contentions of the respective parties, because in our opinion they are irrelevant. The approval by the Probate Court of the final accounting of the Executor on January 25, 1956, was a final judgment order. Abrams v. Schlar, 27 Ill App2d 237, 169 NE2d 583; In re Estate of Dunn, 61 Ill App2d 36, 208 NE2d 888; Barnard v. Michael, 392 Ill 130, 63 NE2d 858. Therefore it could not review its own order or judgment and correct the same either as to any question of fact found by it or as to any question of law decided by it after 30 days. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294.

Appellants do not attempt to bring themselves within the provisions of chapter 110, section 72 of the Illinois Practice Act which provides the method for seeking relief from final orders, judgments and decrees after thirty days, nor do they claim the judgment is void so as to exempt them from the application of section 72.

Section 5 of chapter 3 of the Illinois Probate Act provides: “The provisions of the Civil Practice Act and all existing and future amendments and modifications thereof and the rules now or hereafter adopted pursuant to that Act shall apply to all proceedings hereunder except as otherwise provided in this Act.” Since appellants do not claim the final order of the Probate Court of Cook County was void and since they do not seek to come within the provisions of the Civil Practice Act, they must bring themselves within the provisions of the Probate Act in order to reopen the judgment order of the trial court. Chapter 3, section 308(a) of the Illinois Probate Act provides: “If an estate has been administered and the executor or administrator discharged, it may be reopened to permit the administration of newly discovered assets or of an unsettled portion of the estate on the verified petition of any interested person.” Since it is not alleged that there are undiscovered assets or an unsettled portion of the estate, the trial court lacked jurisdiction to reopen the estate pursuant to the prayer of the petition. “Where statutes specify the grounds on which a final settlement will be opened, modified, or set aside, such grounds must be shown to be present to warrant such action by the court.” 34 CJS, par 914, p 118.

The assets of the estate of decedent escheated to the county, for under the Probate Act (Ill Rev Stats, c 3, § 11) when there is no surviving spouse or known kindred, the intestate estate escheats to the County. C 49, § 7, Ill Rev Stats, provides the method for escheated assets:

“The County Treasurer shall keep just and true accounts of all money paid into the treasury, and if any person appears within 10 years after the death of the intestate and claims any money paid into the treasury as aforesaid as his, on legal representation such person may file a petition . . . , stating the nature of his claim and praying such money may be paid to him; a copy of which shall be served upon the State’s Attorney of such County, who shall put in an answer to the same, and the court shall thereupon examine the claim and the allegations and proofs, and if it finds that such person is entitled to any money paid into the county treasury, such court shall by order direct the county clerk to issue an order upon the county treasurer for the payment of the same; and it is the duty of county boards to see that such amounts are paid in full without discount.”

The escheat statute does not call for the reopening of the estate when a petition is filed or for the appointment of an administrator de bonis non, but states that the State’s Attorney shall “put in an answer.” There is no reason for the appointment of an administrator — the property belongs to the county; if the court finds the claims to be valid, it is transferred to the claimant by the county.

For the foregoing reasons, the order of the Circuit Court of Cook County, County Department, Probate Division, denying appellants’ petition to reopen the estate is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Appellee, v. James W. Grear, Appellant.
    Gen. No. 52,006.
    First District, Fourth Division.
    August 21,1968.

      Albert I. Zemel, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Public indecency.

Judgment

After a bench trial, defendant was found guilty and sentenced to thirty days in the House of Correction.

Points Raised on Appeal

(1) The case was tried without a jury, although defendant never consented to waiver of a jury trial.

(2) The court abused its discretion in limiting defense counsel’s argument.

(3) The court erred in not orally specifying the place of confinement when sentencing defendant.

(4) The complaint failed to charge the offense with sufficient particularity.

(5) Defendant was not proved guilty beyond a reasonable doubt.

Evidence

Vivian Vorisek, for the State.

She is the complainant (age 17 at the time of the incident; 18 at the time of trial). At about 7:30 p. m. on May 26, 1966, she was with a girl friend at the northeast corner of the intersection of Archer and Menard. It was daylight.

Defendant approached the intersection, driving a car west on Archer, and made a right turn onto Menard at 5 to 10 miles per hour. The car turned the corner without stopping and took about five seconds to pass her. Defendant was alone in the car.

Defendant was looking directly at her. He did not speak or motion to her. He was slouched down and she could see his whole body (except his feet). He was exposing himself and holding his personal part. It was erected.

She hailed a passing police officer. Then, as defendant was coming from the alley, she identified him to the policeman as the man who had driven by. (She also identified defendant in court.)

She was not present when the police officer questioned defendant. Her girl friend had not seen anything unusual. She wasn’t looking.

Ronald BowJcowski, for the State.

A police officer, he was patrolling in the vicinity and was driving east on Archer when the complainant motioned to him. He immediately turned the car around and stopped at the corner near Menard. The complainant then talked to him and showed him a matchbook cover / on which she had written the license number of the car as it had passed.

He then saw a car with this license number coming out of the north alley of Archer, west of Menard, turning south on Menard. He waived the driver to stop, which he did. The complainant identified the driver, who was defendant, as the man who had exposed himself. When he told defendant of this accusation, defendant denied it and stated he was in the neighborhood on his way home from a tavern. Complainant’s companion stated that she had not noticed the incident.

Defendant, on his own behalf.

He lived at 3228 South Karlov (north and east of the scene of the incident alleged) with his wife, two-year-old son, and infant daughter. On May 26, 1966, he was employed as a wall-to-wall carpet installer at 960 West Chicago Avenue. He left work at 5:00 p. m. and went directly home.

Later, he was coming from his mother-in-law’s home at 51st Street and La Porte (also north and east of the scene of the alleged incident) when he was stopped. Before going to his mother-in-law’s, he had been at a tavern located on Archer, two blocks west of La Porte. He was arrested at about 7:00 p. m. He was on Menard, coming from 51st Street, approaching Archer to turn west. He was 45 to 50 feet from Archer when he was stopped.

He denied exposing himself.

Opinion

(1), (2) and (3). Defendant filed a written post-trial motion in which he did not mention any of the first three points raised in this court. In view of this, they need not ordinarily be considered. People v. Touhy, 31 Ill2d 236, 240, 201 NE2d 425; People v. Shaw, 89 Ill App2d 285, 294-295, 233 NE2d 73; People v. Fleming, 54 Ill App2d 457, 460-461, 203 NE2d 716. Supreme Court Rule 615(a), however, gives this court the discretion to review plain errors affecting substantial rights, even though they had not been brought to the attention of the trial court. Ill Rev Stats (1967), c 110A, § 615(a). We have, therefore, examined these points, but have found them not to be supported by the record. In any event, the record does not disclose any trial mistakes which appear to qualify as “plain errors” under the rule, nor, in our opinion, as errors at all.

(4) Defendant contends that the complaint was fatally defective because it didn’t describe with particularity the culpable conduct with which he is charged. The material portion of the complaint avers, substantially in the language of the statute,

... an act of, [sic] a lewd exposure of the body, Done [sic] with the intent to arouse or satisfy the sexual desires of himself. Defendant maintains that the phrase, “lewd exposure,” is too vague to describe that conduct which is proscribed by the statute.

We agree that a complaint must be sufficiently specific to enable the accused to prepare fully for his defense and to plead the judgment in bar to a subsequent prosecution for the same offense. It is also true that charging an accused in the language of a statute might sometimes be insufficient to satisfy this constitutional right. E. g., People v. Barnes, 314 Ill 140, 145 NE 391. We do not, however, agree with defendant that the complaint must identify the part of defendant’s body which he is charged with exposing. The statute proscribes a lewd exposing of one’s body — not any particular part thereof — with the intent to arouse or satisfy one’s sexual desires. Exposure is lewd only when performed with and controlled by the actor’s intent. The statute focuses on the subjective mental state. This intent qualification to the lewd exposure provision severely delimits the conduct punishable under the statute, as it is not the intendment of the statute to legislate fashions or mores. See SHA, c 38, § 11-9, Committee Comments.

By this view, the complaint adequately informed defendant of the nature and cause of the accusation. All the authorities he cites for the proposition that the complaint failed to charge an offense with sufficient particularity to support the conviction, construed statutes quite dissimilar from the one here involved. The complaint is satisfactorily specific.

(5) Defendant’s last contention is that the evidence does not establish guilt beyond a reasonable doubt because it did not establish every element of the offense. Also, he challenges complainant’s credibility.

We have already set forth and commented upon the proscription contained in the statute. Defendant’s requisite age and the fact that the place where the incident is said to have occurred was public, are undisputed. Evidence of the elements of intent and conduct must be found in complainant’s testimony. The record contains the following on her direct examination:

“State’s Attorney:

In relation to your testimony that he was exposing himself, tell the court what you mean by that.

“Complainant: “State’s Attorney:

He was holding himself.

What part of himself was he holding?

“Complainant: “State’s Attorney:

His personal part.

In relation to that personal part, what was the condition of that personal part at that time?

“Complainant:

It was erected.”

This testimony does not lend itself to any doubt in interpretation. And the inference that defendant had the requisite intent is inescapable. Therefore, the State has met its burden of proof, if complainant’s testimony is to be believed.

However, defendant argues that her testimony was the product of an “over-active teenage imagination.” He points out that the girl friend noticed nothing, though she stood at complainant’s side. Nor does the record indicate whether complainant reacted in such a manner as to make the girl friend aware of the incident as it occurred. Defendant complains also that complainant’s opportunity to observe him was severely limited. The car in which he is said to have committed the offense passed in a matter of seconds. (Yet, he does not argue that she did not see into the car, which fact would destroy her competency as a witness, if properly raised. See People v. Dixon, 22 Ill2d 513, 177 NE2d 224.) Defendant contrasts these facts with the facts that he denied the offense when arrested and didn’t try to escape the officer when stopped. Thus, he contends, the complainant’s testimony is implausible and, therefore, the evidence leaves a grave and abiding doubt of defendant’s guilt.

Yet, the credibility of testimony is to be determined by the trier of fact. A reviewing court will not upset the trial judge’s findings unless they are unreasonable and unsupportable in view of all the evidence. See People v. Clark, 30 Ill2d 216, 195 NE2d 631; People v. Lewis, 30 Ill2d 617,198 NE2d 812.

[9] We are aware of the psychological factors which sometimes prompt women to make false accusations of sexual offenses. See Wigmore on Evidence (3rd ed), § 924(a) (1960). We are also in accord with the proposition that the evidence in these types of crimes should be subjected to extraordinarily close scrutiny. See People v. Perez, 412 Ill 425, 107 NE2d 749. Where the conviction depends on the complainant’s testimony, denied by the defendant, her testimony must be clear and convincing, or corroborated; otherwise, the conviction should not survive review. See People v. White, 26 Ill2d 199, 186 NE2d 351; People v. Mack, 25 Ill2d 416, 185 NE2d 154; and People v. Reaves, 24 Ill2d 380,183 NE2d 169.

Complainant’s testimony in this case, however, is clear, consistent and unimpeached. While her reactions may have been unforeseeable, they were not unbelievable. Her testimony that defendant had driven past the corner was corroborated by her having written down his license number accurately. Defendant’s story was impeached in a number of ways. He was apprehended coming out of an alley close to the place where complainant said he exposed himself, and he was driving in the opposite direction from that toward which he had headed on passing complainant shortly before. At neither time was he on any reasonably direct route toward home —his avowed destination. Nor would such a route have taken him past the Archer intersection in the first place. Reviewing all the evidence, we conclude that the trial judge’s determination of which witness to believe was amply supported by the evidence and was not unreasonable.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       Ill Rev Stats (1965), c 38, § 11-9, Public indecency.
      (a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
      (3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person;
      (b) “Public place” for purposes of this Section means any place where the conduct may reasonably be expected to be viewed by others.

       His home is at 3228 South Karlov Avenue, which is 4100 West; his mother-in-law lived at 51st and La Porte Avenue, which is 4900 West. He said he drove on 51st Street to Menard Avenue, which is 5800 West, and intended to turn west on Archer Avenue.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Theodore Reese, Plaintiff-Respondent, v. Jerome Crain, etc., et al., Defendant-Petitioner.
    Gen. No. 52,021.
    First District, Third Division.
    July 3,1968.

      Allen S. Gerrard, of Chicago, for defendant-petitioner.
    Arthur S. Gomberg and Philip E. Howard, of Chicago (Samuel Nineberg, of counsel), for plaintiff-respondent.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a petition for leave to appeal from an order granting a new trial in a negligence action brought under the Illinois Liquor Control Act. The jury returned a verdict for the defendant. The court entered judgment on the verdict but upon the plaintiff’s motion vacated the judgment and granted a new trial.

The petitioner-defendant maintains that granting a new trial was a gross abuse of the court’s discretion — that the court substituted its conclusions of fact and inferences from the evidence for those of the jury. The petitioner’s entire brief is devoted to the theme that the verdict was justified by the evidence and should not have been set aside.

Courts of review have frequently urged that a trial judge state his reasons when a new trial is granted so that the reviewing court may know what prompted his decision. Wegrzyn v. Gunnell, 54 Ill App2d 205, 203 NE2d 757 (1964); Pillow v. Long, 299 Ill App 542, 20 NE2d 896 (1939); Gavin v. Keter, 278 Ill App 308 (1934). The wisdom of this admonition is seen in the present case. The trial judgment orally stated the reasons for his order and later, because no court reporter had been present, filed a written memorandum. It is evident from the memorandum that the verdict was not set aside because it was against the preponderance of the evidence but because of trial errors which, in the judge’s opinion, prejudiced the plaintiff’s right to a fair trial.

Among these errors was the defendant’s failure to follow through with proof after asking the plaintiff about prior statements which were supposedly inconsistent with his testimony. The plaintiff denied making the statements. The memorandum stated:

“The Court agrees with the plaintiff that the attempt of the defendant to impeach him, an attempt that was not carried out, prejudiced the plaintiff’s right to a fair trial before the jury.”

In Schoolfield v. Witkowski, 54 Ill App2d Ill, 203 NE2d 460 (1964), this court said:

“Once the foundation for impeachment by prior inconsistent statements has been laid, it is incumbent upon counsel, having laid such foundation to offer proof of the alleged impeaching statements. Miller v. Chicago Transit Authority, 3 Ill App2d 223, 228, 121 NE2d 348; Gordon v. Checker Taxi Co., 334 Ill App 313, 318, 79 NE2d 632. ... [I]t was highly prejudicial for counsel ... to lay a foundation to impeach plaintiff’s testimony on this material point and then to fail to offer proof of the allegedly impeaching statements.”

A motion for a new trial is addressed to the discretion of the trial judge and his judgment thereon will not be reversed except for a clear abuse of discretion, which must affirmatively appear in the record. Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill App2d 354, 199 NE2d 618 (1964). There was no abuse of discretion in this case. The record substantiates the judge’s explanation for granting the motion for a new trial. Accordingly, the defendant’s petition for leave to appeal is denied.

Leave to appeal denied.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Rosa Lee Clifton, Defendant-Appellee.
    Gen. No. 52,079.
    First District, Fourth Division.
    June 26,1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellant.
    Sam Adam, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

The State appeals from an order of the Circuit Court suppressing certain evidence. Defendant was charged with unlawful possession of narcotics. She moved to suppress the narcotics taken from her possession in a search incident to an arrest asserting that the arrest was made without probable cause and that the evidence was therefore the product of an illegal search. Appellant’s sole contention is that probable cause for the arrest existed and the court therefore erred in suppressing the evidence.

Testimony of Defendant

Defendant was arrested by two police officers while in a tavern on East 47th Street at approximately 10:00 p. m. on September 28, 1966. She had been sitting at the bar alone for about one-half hour and was still alone when two police officers approached her, took her by the arm and told her she was under arrest. The officers searched her, taking a package of heroin from her right coat pocket, and they had neither a warrant for her arrest nor a search warrant.

Testimony of Officer Willis Earl Nance

On the day in question he was working on the Chicago Police Force Narcotics Unit. At about 9:20 p. m., while he and Officer James Arnold were sitting in a parked car, a police informer approached them. The informer told them he was in the company of defendant and one Joe Gayles, both of whom were known to the officers, as well as several others; that Gayles had sold narcotics to several of the group and would shortly make a sale to defendant who was waiting on the corner of 47th and Vincennes. Nance and Arnold proceeded to the corner of 47th and Vincennes where Arnold got out of the car and proceeded on foot. Nance parked outside a tavern located at 500 East 47th Street and when he saw Gayles pass him followed him into the tavern. Upon observing Gayles approach defendant and put something in her hand, he “grabbed” defendant and Gayles and took them outside the tavern where Officer Arnold rejoined him. He found a package of heroin in defendant’s pocket and arrested her. Nance had known the informer for two years and believed him to be an addict. He had made between ten and twelve arrests on the informer’s advice and thought all of them resulted in indictments.

After hearing this testimony the trial judge indicated that unless the prosecution produced the informer or Joe Gayles he would grant the motion to suppress. Upon the prosecution’s refusal, the motion was granted.

Opinion

A search of the person without a warrant is legal, and the evidence found is admissible if the search is incident to lawful arrest. An arrest without a warrant is lawful if the arresting officer has probable cause to believe the person arrested has committed a criminal offense. People v. Pitts, 26 Ill2d 395, 186 NE2d 357.

The specific question before us is whether the trial judge could properly suppress the evidence under the

circumstances of this case. In People v. Durr, 28 Ill2d 308, 192 NE2d 379, the court stated at page 311:

Reasonable grounds for believing that a person has committed a criminal offense may be found in information furnished by an informer if the reliability of the informer has been previously established or independently corroborated. (People v. Tillman, 1 Ill2d 525; People v. LaBostrie, 14 Ill2d 617; Draper v. United States, 358 US 307, 3 L Ed2d 327.)

In the recent case of McCray v. Illinois, 386 US 300, the United States Supreme Court, in upholding the decision of the Supreme Court of this state affirming the denial of a motion to suppress evidence, quoted at page 306 from State v. Burnett, 42 NJ 377, 201 A2d 39:

The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts the credibility of the affiant, he may require that the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.

Defendant argues that the trial judge properly passed on the credibility of the officer’s testimony, found it wanting and exercised his discretion to suppress. However, the trial judge never suggested that he doubted the testimony of the police officer. The record shows that after defendant’s demand for the production of the informer or in the alternative a motion to strike the testimony of the police the following transpired:

THE COURT: The motion to strike the testimony of the officer will be denied. The motion for the production of the informer will be sustained.

MR. CONLON (Asst. State’s Attorney): Your Honor, then, to clarify matters, the State would at this time indicate that it would not produce the individual who is named as the informer and ask for a ruling on the part of this Court on the basis of the evidence adduced as to whether or not the evidence in this matter will be suppressed, for the purposes of the State preparing to exercise its rights as to appeal.

THE COURT: All right. On the basis of that statement, the motion to suppress the evidence will be sustained.

MR. CONLON: Your Honor, there was never any request to produce Joseph Gayles, and there has been no evidence of any kind to indicate that Joseph Gayles is the informer in this case. There is no evidence whatsoever to that effect.

THE COURT: That is the finding of this Court.

MR. CONLON: Did defense counsel request that Joseph Gayles be produced?

MR. ADAM (Counsel for defendant) : We asked for the informer.

THE COURT: But the defense counsel mentioned that there is reasonable doubt in this case that that informer may be Joseph Gayles.

Is that right, counsel?

MR. ADAM : Of course that’s right.

MR. CONLON: We are just speculating.

THE COURT: That is a reasonable doubt that this Court is entertaining at this moment in making this finding.

MR. CONLON: The police officer testified that a male person came to the car and said that Joe Gayles would be there. I sincerely doubt that there is any proof in this record that would sustain any indication that Joe Gayles is the informer involved in this case.

The court in its findings stated:

Let the record show, Mr. Court Reporter, as Court’s exhibit A for identification, under the provisions of Section 114-12 (e), the Court finds as matter of fact, that the failure of the State to produce the informer in this case, or, in the alternative, to produce Joseph Gayles makes the search and seizure without a warrant in this case illegal under the law.

Furthermore the court allowed over objection extensive cross-examination of the police officer about the physical appearance and dress of the informer. It is apparent from the record that the judge was not ruling that the testimony of the officer was incredible but rather operating under the assumption that the informer must be identified to establish probable cause.

Defendant urges that since Gayles was not charged with a crime, the testimony of the police officer was suspect. The evidence shows that Gayles was taken to a police station, interrogated and dismissed after defendant refused to cooperate with the police. We cannot infer from the decision of the State and the police not to file criminal charges against Gayles that the officer’s testimony was impeached or subject to disbelief. In McCray v. Illinois, 386 US 300, the court stated at page 313:

Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury.

Defendant further argues that he had the right to ascertain whether the informer and Joe Gayles were one and the same person. We find no evidence to support this claim. The police officer had testified that he had known the informer for about two years; that the informer had been arrested by another officer at a prior time and had an arrest record; and that he knew Gayles from previous arrests. The defendant testified that at the time of the arrest she was alone and had been alone for a half hour prior thereto. In People v. Durr, 28 Ill2d 308, 192 NE2d 379, the court established the principle that identification of the informer was not necessary to establish probable cause, saying at pages 314 and 315:

In our consideration of this question we have been unable to perceive any necessity to hold inherent in the constitutional safeguards protecting those charged with crime the right to information completely irrelevant to the question of innocence, disclosure of which would seriously hamper effective law enforcement, and we are convinced that the better result is the one here adopted. Considering also the deterrent aspects of the civil and criminal remedies for false arrests, it is our opinion that determination of probable cause by reliance upon the officer’s testimony as to the reliability of an otherwise anonymous informer is likely to produce evils of far less consequence than those resulting from depriving the public of an important source of information necessary to the suppression of a particularly vicious form of crime.

Defendant concludes that a trial judge in his discretion can order the production of an informer regardless of the evidence presented. The State urges that the testimony of a police officer based on information received from a reliable informer is determinative of probable cause without the production of the informer. In discussing this problem in Roviaro v. United States, 353 US 53, the court stated at page 62:

The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Under the circumstances of this case, we believe that probable cause was shown without the necessity of producing the informer and that the motion to suppress should not have been sustained. The order suppressing evidence is reversed and the cause remanded for further proceedings.

Reversed and remanded.

MCCORMICK, P. J. and ENGLISH, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wayne J. Gasparas, Defendant-Appellant.
    Gen. No. 52,105.
    First District, Fourth Division.
    September 18,1968.
    Walter C. Wellman, of Lyons, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was found guilty by a jury of resisting arrest and after a judgment on the verdict was sentenced to one year’s probation and a fine of $50 plus costs. On appeal he contends that a verdict of not guilty should have been directed because (1) the man who arrested him was not a police officer, (2) acquittal of the charges for which he was arrested requires acquittal of the charge of resisting arrest, (3) he was not proven guilty beyond a reasonable doubt and (4) the complaint was defective in that it failed to allege the municipality, county or state where the crime charged took place. Defendant argues in the alternative that he is entitled to a new trial because he was unduly restricted by the court in closing argument and because the court erred in ruling on certain instructions.

The complaint states:

Andrew Tomi, complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that Wayne J. Gasparas has, on or about 6-16-66 at 84th Ave. & 81st. committed the offense of Resisted Arrest in that he knowingly resisted or obstructed the performance by one known to the person to be a peace officer performing his duties within his official capacity, in violation of Chapter CH 38 Section 31-1 Illinois Revised Statute And Against The Peace And Dignity of The People of The State of Illinois.

Andrew Tomi, the complaining witness, testified that he was a long-distance bus driver and a part-time policeman for the Village of Justice, that at three forty-five on the afternoon of June 16, 1966, while wearing his uniform and driving a squad car he stopped a motorist near a stop sign at 79th and Oak Grove in the Village of Justice, that the motorist stopped in the right lane and he pulled his squad car alongside in the left lane to lecture him on an infraction of the law and that although there was moderate traffic there was room to pass in the oncoming traffic lane on the left. He said that about one minute later a car came up behind them and began honking, that he let the motorist go without giving him a ticket and got out of the squad car to find out what was the matter with the car behind him, that defendant occupied the car which had honked and that he asked defendant, “What’s your problem ?” Tomi testified that defendant used obscene language and told him to stop blocking the road, that he told defendant if he kept it up he would be arrested for disorderly conduct and that he finally informed defendant he was under arrest. Tomi said that defendant continued using profanity, that defendant stated that Tomi was not a policeman and should move out of the way, that he told defendant to stay put and that when he got into the squad car to radio for assistance, defendant drove off. The witness testified that he chased defendant, that the route proceeded through 84th Avenue and 81st Street and led to defendant’s home from which he was taken to the police station and that during this chase defendant traveled forty-two miles per hour in a twenty-mile zone.

Tomi was asked to produce his police department commission and this revealed that his commission had expired on April 30, 1966. Defendant then introduced a judgment order of the Circuit Court which was handed down on June 15, 1966, (hereinafter referred to as the “June 15 order”) the day before the occurrence in issue and which stated that in regard to Andrew Tomi and other named policemen appointed by the President and the Board of Trustees of the Village of Justice their appointments were “wholly void and of no force and effect” ; that defendant’s father, Mirko Gasparas, (a plaintiff in that case) was entitled to tenure as Captain of Police and that the appointment of Edward Naydack (who had ordered Tomi to duty on June 16) as Superintendent of Police was void.

The defendant, Wayne Gasparas, testified that he had been a volunteer fireman and had known Tomi when he was with the fire department; that on the afternoon of June 16, 1966, at about four o’clock he came upon Officer Tomi parked alongside another car; that the roadway was only two and one-half lanes wide (the cars coming from the opposite direction had to move off on the dirt edge to get by) and that the traffic was too heavy for him to go around. He said that it appeared to him that Tomi was just having a discussion and was not involved in traffic regulation; that he waited about two minutes and then honked; that he waited another minute and blew the horn again and was told by Tomi to shut up; that he waited another minute and honked and that the motorist then departed and Tomi got out and approached defendant’s car. He said that they argued about whether Tomi had been discussing a traffic violation or was just talking; that Tomi invited him to “take a poke” at him, which he refused to do; that he told Tomi he (Tomi) was not a policeman, that Tomi told him he was under arrest but refused to tell him why and that after telling Tomi he would not stay without receiving an explanation of why he was under arrest, he left. He said that he drove between fifteen and twenty miles per hour on his way home and at no time drove forty-two miles per hour.

Defendant first contends that, since Tomi was not a police officer, he should have received a directed verdict on the charge of violating Ill Rev Stats 1965, c 38, § 31-1, which reads as follows:

A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.

The State argues that since Tomi wore a police uniform and badge, drove a police car and had not been apprised of any change in his status, he was a de facto police officer and had sufficient authority to put defendant’s behavior within the above statute. In support of this contention it cites People v. Board of Review of Peoria County, 19 Ill2d 424, 167 NE2d 553. That case is inapplicable since the court decided only that the acts of members of the Board of Review (in reviewing property assessments) could be challenged in certain statutory proceedings and not in the quo warranto proceeding then before the court. The State also cites People v. McCann, 247 Ill 130, 93 NE 100. However, that case held that one who occupied a public office could not defend against a charge of bribery by urging the legal deficiencies of his appointment to that office. Finally the State cites State v. Stago, 82 Ariz 285, 312 P2d 160, a case in which the invalidity of the appointment of a law officer was raised as a defense to a resisting arrest charge. The court there held that the statutory requirement with which the officer’s appointment failed to comply was merely directory and did not deprive him of authority to make the arrest.

To sustain the charge of resisting arrest the State must show that defendant knowingly resisted the performance by one known to him to be a peace officer of an authorized act within his official capacity. It is uncontradicted that Tomi’s commission as a policeman expired on April 30, 1966, and that on June 15, 1966, (the day prior to the arrest) his appointment was held to be void and of no force or effect. Chief Naydack who assigned Tomi to work on June 16 had been ordered on June 15 to “cease and desist from exercising any right to the purported office of Police Superintendent of said Village of Justice, Illinois” in a court action to which he was a party defendant. The officer’s claim that he did not know of the court’s order of June 15 is not relevant. He had no authority, actual or “de facto.” Additionally it is undisputed that defendant told Tomi in no uncertain terms that Tomi was not a police officer. Since defendant’s father was one of the plaintiffs in the court action which declared Tomi’s appointment to be void, it is understandable that defendant had knowledge concerning that order. Under all these circumstances we believe that defendant’s motion for a directed verdict should have been sustained.

In view of the above, we find it unnecessary to discuss defendant’s remaining contentions.

The judgment of the Circuit Court is reversed.

Reversed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Defendant was also charged with reckless driving and disorderly conduct arising out of the same occurrence. A verdict was directed in his favor on the charge of reckless driving and he was found not guilty of disorderly conduct by the jury.

       The trial court in denying defendant’s motion to dismiss the complaint relied on the fact that the order of June 15 was not a final order since an appeal had been filed. However, the appeal did not operate as a supersedeas and the order of June 15 was in full force and effect. Subsequently it was affirmed in People ex rel. Gasparas v. Village of Justice, 88 Ill App2d 227, 231 NE2d 669.


author: MR. PRESIDING JUSTICE SMITH

text:
    Leo Boughton, Plaintiff-Appellant, v. Leo Jones, Defendant-Appellee.
    Gen. No. 52,120.
    First District.
    July 22,1968.
    Rehearing denied August 5, 1968.

      Harry B. Aron, of Chicago, for appellant.
    Seaberry & McDowell, of Chicago (James J. Seaberry, of counsel), for appellee.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

Issue having been joined, neither the defendant nor attorney for him appeared at the trial. Jury verdict and judgment of $18,000 in favor of the plaintiff and against the defendant followed in the original personal injury suit. Defendant filed his verified petition under Ill Rev Stats 1965, c 110, § 72, to vacate the judgment. Plaintiff filed a verified answer. The defendant and other witnesses were sworn and examined on the issues made by the petition and answer. This is an appeal from the allowance of the petition and the entry of an order vacating the $18,000 judgment.

Upon receipt of summons in the personal injury suit, the defendant forwarded it to his insurance company and its attorneys entered an appearance and filed an answer. The defendant responded to interrogatories and appeared for a deposition taken by the plaintiff. Subsequently the insurance company was taken over by the Director of Insurance for rehabilitation and subsequent liquidation. The attorney for the insurance company withdrew from the case without notice to the defendant. The Director of Insurance appointed a second firm of attorneys to protect the interests of some 1,500 insured defendants. Subsequently they withdrew by a general order permitting withdrawal in all of these cases. The record is in dispute as to whether or not the defendant was notified of their withdrawal. In any event, it is unequivocally established that the second firm of attorneys was never employed by the defendant nor did he ever consent to substitution. The record is barren of any evidence that he ever had any notice of the jury trial and he testified that he knew nothing about it. If notice of the trial was given to any attorneys, it was given to attorneys not authorized to represent him and it is transparently clear that neither they nor anyone appeared for him at the trial. The trial court held that he was entitled to select his own attorney and to be represented and that justice and equitable fairness required that the judgment be vacated.

Unless the evidence shows fraud, mistake or fundamental unfairness on the part of the plaintiff, a collateral attack úpon a final judgment is stillborn. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719. Where conduct on the part of the plaintiff in proving up damages wholly unrelated to the accident was involved, the Supreme Court held that the plaintiff had taken unfair advantage of both the defendant and the court. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. There is in this record no suggestion of fraud, overreaching, or unconscionable behavior on the part of the plaintiff or the court. The vitality of this judgment is not denigrated by the conduct of either.

It is but a monotonous litany to say that the burden is on the petitioner to prove his right to relief under section 72 and to establish that his predicament is not the consequence of his own neglect. We think the judgment in this case is the mongolistic child of a trilogy of mistakes. The trial judge in the original case undoubtedly believed that the defendant was represented by counsel and had notice of the jury trial. In this, he was mistaken. Likewise, the plaintiff’s attorney must have believed that the defendant had notice of the trial setting and was properly represented by counsel. He was mistaken. The defendant must have believed that he was represented and would receive notice of any required appearances in court. He was mistaken. If either of the defendant’s attorneys had notice of the trial setting, neither appeared. If the second attorneys had notice of the setting, it was notice to nobody with authority. In Jacobson v. Ashkinaze, 337 Ill 141, 168 NE 647, in a case somewhat similar to the one at bar, the Supreme Court said at page 649 of the Northeastern citation:

. . An attorney acting without authority cannot by his acts in court bind a party to the suit, and a notice to such an attorney, only, is not notice to the party. A judgment rendered under such circumstances may be vacated even after the term of its rendition has expired. Thomson v. Patek, 235 Ill 341, 85 NE 603.”

In the same case, 168 NE 647, 649, the court said:

“. . . Obviously, if these facts had been known the court would not have rendered judgment against a party who had no notice of the reinstatement of the cause and was not chargeable with such notice. . . .”

These facts known to the trial court would have precluded the entry of the original judgment and required different action on the part of the court. A judgment entered without a proper opportunity to be heard is not defensible.

Stability of judgments requires not only that a defendant must have reasonable opportunity to appear and defend, but likewise requires that he diligently avail himself of those opportunities. This is true either before or after judgment. The national anthem of equity jurisprudence concludes with the ringing phrase that equity favors the diligent. What then was the conduct of the defendant after knowledge of the judgment?

An execution was not issued until about 40 days after the judgment and was not served until August 4. These are circumstances which have been said to cast a cloud upon the proceedings. Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829; Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350. The record is silent as to just when the defendant employed his present attorney. He was served with citation to discover assets returnable September 9. On this date, his present attorney appeared before the court and agreed that a rule to show cause on such citation could be made returnable November 9, 1966. On September 30, 1966, the defendant filed his present petition to vacate the original judgment. While it might well be said that the service of the execution on the defendant would have alerted a prudent man into some action, the fact remains that the service of the citation moved him to immediate action, to the employment of an attorney and to an appearance in court. The trial court heard and saw the witnesses. It is apparent that he concluded the defendant had not displayed an indifference to or disregard for court process. The record shows nothing as to this man’s experience, education or training or his knowledge of judicial procedure. The trial court was satisfied that he had acted in good faith and with prompt dispatch when required to do so. It was stated in Sarro v. Illinois Mut. Fire Ins. Co., 34 Ill App2d 270, 273, 181 NE2d 187, 189, that a petition filed within 30 days is “. . . addressed to the sound legal discretion of the court, the invocation of which must be preceded by an adequate showing, so far as the past is concerned, that there is a reasonable excuse for the delay, and, so far as the future, that a meritorious defense can be made. . . .” It was there held that a reviewing court ought not substitute its judgment for the trial court unless there is a palpable abuse of discretion. That philosophy is persuasive here as well as the fact that the burden of proof under CPA § 72 is clearly on the movant and is here adequately maintained. The petition and affidavit of the defendant shows a meritorious defense. On this record, we therefore conclude that the judgment of the trial court in this case is correct. Accordingly, the order of the trial court vacating the default judgment is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


author: MR. JUSTICE CRAVEN

text:
    Howard B. Quinn and Charlotte J. Quinn, Plaintiffs-Appellants, v. Pullman Trust and Savings Bank, a Corporation, Defendant-Appellee.
    Gen. No. 52,149.
    First District.
    September 11, 1968.

      Samuel E. Hirsch, of Chicago, for appellants.
    Wildman, Harrold, Allen & Dixon of Chicago (Thomas D. Allen, of counsel, for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook County entered on motion for summary judgment by defendant against an amended complaint by plaintiffs as beneficial owners of real estate in Cook County which was held by defendant-bank as trustee under land trusts created by plaintiffs.

Plaintiffs, after creating the land trusts of real estate with defendant as trustee, borrowed from defendant $175,000, evidenced same by a 90-day note, and pledged an assignment of their beneficial interests of the trusts as security for the loan. Plaintiffs contend the written instruments of assignment constituted second real estate mortgages. An assignment of rents, issues and profits from the properties also was made as part of the pledge. The note contained a provision giving defendant-bank payee the power to sell the pledged property, without advertisement, demand of payment or notice, at public or private sale or sales, in case the note or any liability of the makers was not paid at maturity. It permitted the payee or assigns to purchase and provided that the net proceeds, after the sale expenses, be applied on the liabilities of the makers and the surplus, if any, be paid to the makers.

Upon failure of plaintiffs to pay the note when due, the bank sold the beneficial interests in the six trusts after posting three public notices of the sale for one week. Plaintiff Howard B. Quinn and his attorney were present at the sale. Defendant-bank purchased the beneficial interests for the full amount of the indebtedness and later sold them to third parties.

Plaintiffs filed suit claiming the instruments constituted a mortgage, that the sale of the beneficial interests was a strict foreclosure of real estate wherein the statutory provisions for foreclosure were not followed, and prayed for an accounting of all sums received from the sales. Defendant filed a motion for summary judgment, which the trial court granted, and entered judgment for defendant.

The agreements with the bank transferring the real estate to the bank were in the usual form of land trusts, providing that the rights of the beneficiaries were “deemed to be personal property, and may be assigned and transferred as such.” Illinois courts have for some time recognized the creation of the so-called “land trusts.” Under such trusts the trustee holds legal and equitable title to real estate subject to full powers of direction and control in the trust beneficiaries. The trustee has duties to deal with the real estate on direction of the beneficiaries, and at the end of the trust period specified to sell any property remaining in the trust and divide the proceeds among the beneficiaries.

The interest of the beneficiaries of the trusts is personal property and the Statute of Uses does not apply to land trusts. Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank, 300 Ill App 329, 20 NE2d 992. Whether a merger of the legal and equitable estates results depends upon the intention of the parties as set forth in the trust agreement. Equity will prevent or permit a merger as will best serve justice and the intent of the parties. Wechter v. Chicago Title & Trust Co., 385 Ill 111, 52 NE2d 157. Clearly, no merger was intended or resulted by virtue of the instruments here involved.

A land trust may not be used as a device to circumvent the right of redemption where the transaction of creation of the land trust and borrowing of funds with the simultaneous pledging and assignment of the beneficial interest are one transaction. However where, as here, the trust contains no provision for sale of the real estate subject-matter on default in a debt, where it is set up for purposes other than as a security for a debt, where the pledge of the beneficial interest is subsequent to the creation of the trust, and where the pledge security transaction is of the trust beneficial interest only, the transaction is valid and will not be construed to be a real estate mortgage. Horney v. Hayes, 11 Ill2d 178, 142 NE2d 94. Otherwise, if these four tests are not complied with, the transaction may constitute a real estate mortgage with the attendant right of redemption. De Voigne v. Chicago Title & Trust Co., 304 Ill 177, 136 NE 498. Homey is determinative here. See also Lawn Savings & Loan Ass’n v. Quinn, 81 Ill App2d 304, 225 NE2d 683 (1st Dist 1967).

In the instant case no allegations of fraud or subterfuge in the transaction appear. No genuine issue of fact was present. It was, therefore, proper to enter a summary judgment on defendant’s motion, as required by section 57(3) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 57 (3).) Defendant’s motion for summary judgment, supported by affidavit, uncontradicted by any counteraffidavit of plaintiffs, clearly negated any intention of the parties to create an interest in the nature of a mortgage, and the instruments executed between the parties showed that their intention was to create effective land trusts with subsequent pledges of the trust beneficial interests only. Further, the actions of plaintiffs in standing by and permitting the real estate to be sold, without asserting any claim of title, would effectively estop them from claiming title or interest in the real estate as to a subsequent purchaser. Moore v. Gilmer, 353 Ill 420, 187 NE 466; Shippert v. Shippert, 371 Ill 267, 20 NE2d 597. The trial court correctly granted the summary judgment motion and properly entered judgment for defendant.

Judgment affirmed.

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


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Defendant in Error, v. John B. Smith, Plaintiff in Error.
    Gen. No. 52,160.
    First District, Third Division.
    June 27,1968.

      William Bruce Hoff, Jr., of Chicago, for plaintiff in error.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant was charged with having taken, or committed the offense of, indecent liberties with a three-and-a-half-year-old boy. At a bench trial he was found guilty and sentenced to an indeterminate term of not less than nineteen years, ten months, nor more than twenty years, in the Illinois State Penitentiary at Menard. Defendant was fifty-two years of age at the time of the occurrence.

Defendant contends that the trial court improperly limited defense counsel in his cross-examination of the State’s principal witness; that defendant’s guilt was not established beyond all reasonable doubt, and that the court’s finding of guilty and the sentence imposed were the results of passion and prejudice.

The State’s principal witness, Mrs. Pearl Maggio, testified that on October 14, 1960, at approximately 3:15 p. m. she was walking through a viaduct on 25th Street in Chicago between Canal and Stewart Streets. The viaduct is a full block long and there were no lights under it. It was a dark rainy day. Under the viaduct there were sidewalks on both sides of the street. At the edges of the sidewalks and in the center of the street were rows of concrete pillars. The street was wide enough for two lanes of traffic in each direction.

When she had travelled about one-third the length of the viaduct she saw a man (defendant) and a little boy. When about two feet from them she noticed that the man was taking the boy’s pants down. Thinking that the boy probably had to go to the washroom, and not wanting to embarrass them, she “crossed over” and continued walking in the street along the center row of pillars. As she reached Stewart Street she heard the boy cry out. She returned to where the man and boy were standing and saw the boy with his face pressed against the wall of the viaduct by the defendant. The front of the defendant was against the back of the boy. As she approached, defendant jumped up from a crouching position and she saw that his pants were open and his private parts were exposed.

Mrs. Maggio pulled the child toward her and asked defendant what he was doing to the boy. Defendant replied, “He has appendix, I’m taking him to the hospital.” When asked if the child was his, defendant replied, “Yes, I’m his father.” Mrs. Maggio and defendant had a brief struggle and then he grabbed the child, pulled up his pants and took him toward Stewart Street. Mrs. Maggio followed, a foot or two behind them. As they reached Stewart Street she stopped them and asked the boy if defendant was his father. The child did not reply. She then put her hand out and asked the boy if he would like to go with her and he took her hand. Smith then said, “Take that God-damned kid. I’m through with him.” Mrs. Maggio yelled to a passing truck driver to apprehend defendant. The latter started to run but was caught and taken to the trucking office where defendant again said he was the boy’s father. The police were summoned and arrested defendant.

Mary West testified that she was part owner of Capitol Press where defendant was a part-time employee on October 14, 1960. Sometime between 1 p. m. and 3 p. m. defendant came into the shop with a small boy whom she identified as the victim of the crime. When asked if the boy was his, defendant replied that he was. Defendant had come to the office for his last paycheck and was there about five minutes.

Mary Vickery testified that her son Ronald, the victim, left her house about 1:15 p. m. to play and that she next saw him about 4 p. m. at the police station with Mrs. Maggio.

Defendant first contends that the trial court improperly limited defense counsel in his cross-examination of Mrs. Maggio. He argues that the conditions under which she saw the defendant and the boy were not ideal for observation and that counsel was not permitted to question the witness as to her power of observation. It should be noted that the questions asked required conclusions from the witness and were improper in form. Defendant relies on People v. Del Prete, 364 Ill 376, 4 NE2d 484, wherein the court said on page 379:

“The entire case depended upon an identification made by one witness, and reasonable latitude should have been granted the defendant to test the means of observation and the accuracy of the memory of that witness. While considerable latitude and discretion are permitted to a trial judge in controlling the limits of cross-examination, yet so far as it relates to facts in issue or facts relevant to the issue it may be pursued as a matter of right. (Spohr v. City of Chicago, 206 Ill 441.) A witness may be cross-examined as to his direct testimony — as to whatever goes to explain, modify or discredit what he has previously stated. (Chicago City Railway Co. v. Creech, 207 Ill 400.)”

There is no indication in that case as to whether the questions not allowed were proper in form.

In People v. Pelletri, 323 Ill 176, 153 NE 591, the court held at page 182:

“The trial court has the right to hold the cross-examination within reasonable and proper limits, but it has no right to substantially deny cross-examination of a witness by unduly limiting it or by discrediting it by impertinent remarks. If plaintiffs in error are guilty of this crime their guilt can be established in an orderly trial. Until it is so established a conviction cannot be sustained.”

In that case the trial court had engaged in extensive cross-examination of witnesses and had displayed partiality throughout the trial. Both of the above cases give guidelines for a court with regard to limitation of cross-examination of witnesses. In the instant case the record discloses that counsel made no attempts to rephrase his questions or elicit the testimony in another manner. The court’s rulings in the instances complained of were proper and cross-examination was not unduly limited.

Defendant next contends that his guilt was not established beyond all reasonable doubt. The alleged reasonable doubt was created by the fact that although Mrs. Maggio first noticed the defendant and the boy from a distance of about fifteen feet, it was not until she was one or two feet from them that she saw defendant was taking down the boy’s pants, and yet her subsequent observations of the acts and positions of the parties were made from a distance of more than twelve feet. Mrs. Maggio testified that she first noticed the people at a fifteen-foot distance and that she walked a little way toward them before she noticed what the man was doing. She was just a couple of feet away when he pulled the boy’s pants down. The testimony does not show that she was unable to observe from a distance of more than two feet but rather that the man actually disrobed the boy when she was quite close to them. Mrs. Maggie’s testimony was clear and unshaken upon cross-examination. If believed, it was sufficient to sustain a finding of guilty. The trier of fact evidently believed her and we cannot say from a review of all the evidence that such a conclusion was unreasonable or that anything in Mrs. Maggio’s testimony or elsewhere in the record created a reasonable doubt as to defendant’s guilt.

Defendant finally contends that the court’s finding of guilty and the sentence imposed were the results of passion and prejudice. He argues that the court excluded all evidence which might have established defendant’s innocence. The instances during the trial complained of were rulings by the court sustaining proper objections of the State’s Attorney. While defendant complains that the court made no effort to determine why counsel was making the inquiries or what their relevance may have been, we find no substance to this argument. ,There is nothing in the record to show that the court was other than fair and impartial in conducting the trial or that the rulings complained of were improper. Defendant failed to show any prejudice on the part of the trial court during the course of the trial.

Defendant also points out statements of the court at the time sentence was imposed. The court found the State had sustained its burden and then stated in part:

“I wish that the legislature had made the punishment even more severe than it is under this statute because I would be impelled by my conscience and by my duty to impose a maximum sentence of any number of years that the statute would permit me to do.

“Now then, that being the case, from this evidence, beyond all reasonable doubt that this has happened, and we’ve got to take these fellows off the streets of this city or else we are going to run into this problem all the time, and with an alert citizenry maybe we will get rid of some of these criminals that go after these little children, the little girls and little boys of our community, so they can live and be as God intended they should, there will be a finding of guilty in this case and the Court will impose a minimum sentence of two hundred and thirty-eight months, a maximum sentence of twenty years in the Illinois State Penitentiary, to be served at Menard. I will so direct in the pen letter. I will enter judgment on the finding first. Menard Penitentiary where we perhaps can take care of these people.

“I will further direct that one month out of each year, being the month of October, when this crime occurred, that he shall be confined to solitary confinement during that month of each year that he is there so that he can meditate on what he attempted to do this three-and-a-half-year-old boy. And maybe some day he may come out of the penitentiary and know that these crimes do not go unpunished and that his conscience should trouble him at least one month out of each year.”

The State cites the case of People v. Matthews, 17 Ill2d 502, 162 NE2d 381, wherein it was stated at page 508:

“Finally defendant urges that the judgment of conviction should be reversed because the rulings and remarks of the trial judge reveal that the verdict and the sentence were the result of passion and prejudice. He insists that the rulings of the judge in regard to the proffered impeaching evidence, and the statements of the judge at the time of sentencing reveal his prejudicial attitude and his predetermination of the case. Upon sentencing defendant the trial judge remarked that it was regrettable that the statute limited the sentence to 20 years, and that in this type of case a man should be put away for life. He then sentenced the defendant to a minimum of 19 years and a maximum of 20 years.

“Defendant points to nothing during the course of the trial which indicates passion or prejudice on the part of the court. The remarks to which defendant now takes exception were made only after the court had found the defendant guilty. The remarks do not mean that the court had entertained a preconceived attitude in regard to defendant’s guilt, but only that the facts of the crime, as they came to light from the evidence presented, shocked and revolted the court.

“We can well understand the strong ieelings of the court, but nothing appears to us to indicate that the court tried the case in any attitude other than one of impartiality and fairness. The actions of the court during the trial, and its pronouncements of judgment and sentence were proper, correct, and within the limits of the law. That the court expressed, after trial, a personal opinion clearly attributable to the evidence in the record, does not mean that the court was not an impartial trier of facts. People v. Brown, 392 Ill 519; People v. Tensley, 3 Ill2d 615.”

We feel that the finding of guilty in the instant case is supported by the evidence and that it was reached in a fair and impartial manner by the court. However, the sentence imposed is not so clearly free from the implication of being the result of prejudice on the part of the court. There is a difference between a fair determination of guilt and a severe reaction to that finding of guilt. The penalty provided by statute for the offense of taking indecent liberties with a child is 1-20 years. (Ill Rev Stats 1959, c 38, par 109.) It is evident that the legislature saw and understood that the necessary penalty would vary with the circumstances of each case and each defendant. There is no showing that this defendant had any prior criminal record and yet the court sentenced him to a term of 19 years, 10 months to 20 years, the month of October of each year to be spent in solitary confinement. The court also determined that defendant should be sent to the Menard branch of the penitentiary where medical attention and treatment is provided for people guilty of the commission of sex offenses. By sending defendant to Menard the court seemingly realized the need for treatment and yet by the minimum sentence the court in effect determined that defendant could not or would not be aided by that treatment so as to be able to return to his place in society in less than 19 years and 10 months.

We can well understand the strong feelings of the court and realize that this was a very serious offense. However, people who commit these crimes have medical treatment available to them at Menard and may well be rehabilitated so as to be able to return to a normal life without endangering society. Under the Parole Act the Parole and Pardon Board, who has closer contact with the prisoner, is in a better position to know when an offender has become sufficiently rehabilitated to be released from prison on parole. Furthermore, as was pointed out in People v. Lillie, 79 Ill App2d 174, at page 179, 223 NE2d 716:

“Advances in the fields of psychology, psychiatry and sociology have contributed to a greater understanding of the motives underlying the commission of criminal offenses, and the techniques and methods which are of value in the rehabilitation of offenders. The hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation programs provided in modern penal institutions. Excessive minimum sentences, imposed by the courts, may defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished.

“Inherent in the parole system is the risk of recidivism, but an enlightened society has long since rejected the medieval concept of punishment which imposed the death penalty for crimes now categorized as petty offenses. Society’s safeguard against recidivism is the power of the parole authorities to terminate the conditional release and return the offender to prison. A lengthy maximum sentence is not so likely to impede the operation of the system because the prisoner, although subject to parole supervision, is not mandatorily confined.”

In view of the foregoing we feel the minimum sentence of 19 years, 10 months, to be excessive and not in the best interests of the community or the defendant. Similarly, as to the portion of the sentence requiring solitary confinement of defendant, the court had the power to provide for such confinement at the time of sentencing (Ill Rev Stats 1959, c 38, par 754a). However, such provision has since been repealed and we feel that portion of the sentence will in no way help in the rehabilitation of defendant. Accordingly the minimum sentence is reduced to 10 years. The judgment and sentence are modified to provide that the sentence is confinement of the defendant at the Menard branch of the Illinois State Penitentiary for a period of not less than 10 years nor more than 20 years. As so modified, the judgment is affirmed.

Judgment, as modified, affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.