author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Minnie White Johnson, Plaintiff and Counterdefendant-Appellant, v. Rosie M. Johnson, Defendant and Counterplaintiff-Appellee.
    (No. 55987;
    First District (3rd Division)
    April 19, 1973.

      Joe Reiff, of Chicago, for appellant.
    Bromberg & Bromberg, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

This is an appeal from a decree of partition entered by the Chancery Division of the Circuit Court of Cook County.

In June 1959 Minnie White Johnson and George Johnson, her husband, purchased, in joint tenancy, a two-flat building located at 2661 Warren Boulevard, Chicago. In 1966 George, unknown to Minnie, quit-claimed his interest in the building to his attorney who then reconveyed it in joint tenancy to George and Rosie Johnson, George’s daughter by a previous marriage.

Upon the death of George in the following year, Minnie initiated the present action against Rosie by filing a complaint to quiet title. Rosie filed an answer and a counterclaim for partition. After Minnie answered the counterclaim a trial was had which resulted in a decree dismissing her complaint, finding that she and Rosie were tenants in common and ordering a partition and an accounting. Minnie’s petition to vacate the decree and her petition requesting a determination, prior to a decree of sale, of the credits due her by reason of expenditures made by her for taxes, mortgage payments and maintenance, were denied.

Minnie’s complaint alleged that she was in possession of the premises and occupied the first floor as a homestead; that the $7,000 down payment on the $15,000 purchase price consisted of $4,500 from her own funds and $2,500 of the joint funds of herself and George; two mortgages covered the remaining purchase price and her personal funds had been used to reduce the mortgages and to pay for taxes, insurance and permanent improvements. She asserted that her husband had willfuUy deserted her and that the conveyances were unknown to her until after his death. She contended that her undivided one-half interest, dower and homestead rights, mortgage payments and the value of the permanent improvements exceeded the current value of the property.

Rosie’s answer denied that Minnie’s separate funds were used in the purchase of the building or in payment of the mortgages, insurances and taxes. She admitted the conveyances through which she took an interest but said she had no knowledge whether Minnie knew of them. She also claimed that she had no knowledge concerning the alleged improvement expenses. In her counterclaim she asserted she became a tenant in common with Minnie when her father died; that Minnie had been collecting the rent from the second flat in the building and despite requests had failed to account for the rentals.

In an amended answer to the counterclaim Minnie alleged that a fraud was effectuated against her rights and that established principles of public policy were circumvented by the conveyances and the partition proceedings.

The evidence at the trial consisted of Minnie’s testimony, that of a real estate broker and various documents and exhibits. The evidence tended to prove that Minnie was steadily employed while George only contributed $18 a week for room and board when he was employed. The remainder of his money was placed in his own account which was used for periodic distributions to his children by a previous marriage. George left the marital abode several times, the last time was for the period approximately 14 months preceding his death. Previously, he had instituted divorce and partition proceedings; however, the case was dismissed. Minnie collected the rent from the building’s second flat; this was done both during George’s lifetime and after his death. Numerous bills and receipts, bearing the names of George, Minnie or both, were received in evidence. They pertained to improvements to the premises which were made during coverture, separation, and after George’s death. The first mortgage payment books were introduced; they established that the mortgage was substantially reduced by periodic payments up to the time of the trial. The second mortgage payment receipts, totaling $3,000, were also introduced; the individual receipts were made out to Minnie or George.

On appeal Minnie makes two contentions: the conveyance by her husband constituted a fraud against her rights, and the court erred in denying her petition for a determination prior to any proposed sale of the credits due her. In support of her argument of fraud reference is made to the following: the inequities in paying the expenses related to the realty; the execution of her husband’s quit-claim, unknown to her, during a period of desertion; the lack of consideration for the conveyance; the disbursements of his savings to children of a former marriage; his dying without leaving an estate and his dismissed suit for divorce and partition.

A husband’s right to dispose of his property is absolute during his lifetime. (Frey v. Wubbena (1962), 26 Ill.2d 62, 185 N.E.2d 850; Hoeffner v. Hoeffner (1945), 389 Ill. 253, 59 N.E.2d 684.) A joint tenancy, even though between husband and wife, can be severed when one of the tenants conveys his interest to a third person. (Ennis v. Johnson (1954), 3 Ill.2d 383, 121 N.E.2d 480.) The deprivation of the wife’s expectation by a deed or gift is not vulnerable to attack unless the transaction is a sham, colorable or illusory and tantamount to a fraud. (Holmes v. Mims (1953), 1 Ill.2d 274, 115 N.E.2d 790; Frey v. Wubbena.) The facts of the present case do not disclose any of these weaknesses. George Johnson’s previous attempt to partition the premises does not establish fraud and his failure to inform his wife of the conveyances is not sufficient evidence, of itself, to show that the transactions were fraudulent. Although a conveyance without one party’s knowledge made on the eve of marriage may be deemed a prima facie fraud upon that party’s marital rights (Moore v. Moore (1958), 15 Ill.2d 239, 154 N.E.2d 256) the rule is inapplicable to transfers during marriage. (Toman v. Svoboda (1972), 4 Ill.App.3d 148, 280 N.E.2d 499.) Consistent with a husband’s absolute right to convey his interest is the right to effectuate a gift of that same interest. It was George’s privilege to make a gift to his daughter. There was no evidence that the conveyances by which he made Rosie a joint tenant in an undivided one-half interest in the realty were illusory or shams. There was no evidence — or allegation — which showed the relationship between the realty and George’s estate. The alleged inequity in the cash payments made by George and Minnie toward the realty is magnified by the fact that the property has decreased in value from the original purchase price. On the other hand, the supposed inequity is mitigated by other factors. The initial down payment was partially met by the joint funds of the parties. George made payments, although meager, for room and board. Even if Minnie paid off the entire second mortgage herself and had reduced the first mortgage while meeting the expenses of repairs, taxes and insurance, she had collected approximately $11,500 in rent from the second flat. The actual repair and improvement bills amounted to $6,907.13; approximately $2,300 of this sum was for work performed after George’s death or during one of the periods of his desertion. Thus, a large amount, if not all, of the building’s expenses during coverture could have been paid by the rent.

When property is taken in the joint names of a husband and wife, and consideration has been furnished by one of them, there is a presumption of a gift from the one furnishing the consideration to the other; only clear, convincing and unmistakable evidence that no gift was intended can overcome the presumption. (Bruin v. Bruin (1966), 72 Ill.App.2d 51, 219 N.E.2d 68.) The presumption is strengthened if the purchase price was comprised of the funds of both parties. (Walker v. Walker (1938), 369 Ill. 627, 17 N.E.2d 567.) Similarly, in the absence of fraud or an agreement to repay, a wife’s expenditures for family support and improvements to the dwelling house are deemed to be gifts. Spalding v. Spalding (1935), 361 Ill. 387, 198 N.E. 136.

The record is barren of any proof which sustains the broad charge of fraud. And it is also barren of any proof to sustain the even broader allegation that the conveyances were used to circumvent established principles of public policy; The decree of partition is affirmed.

We believe, under the circumstances of this case, the request of Minnie Johnson for a pre-determination of her credits so as to facilitate her bid at the proposed sale, should have been granted. She stated in her petition that the appraiser appointed by the court had valued the property at $12,000; that she had $1,500 and could borrow another $500, the total of which was insufficient to bid at the sale, but if the court would determine, before the sale, the credits to which she might be entitled, as the decree provided the court would do at some subsequent date, she might be in a position to make a bid. We find no exact precedent for this procedure, but Rosie Johnson’s counsel informed us during oral argument that he had no objection to the suggested pre-sale adjudication and it is unnecessary to have a precedent for equitable relief before it will be granted. (First Nat. Bank v. Bryn Motor Beach Bldg. Corp. (1937), 365 Ill. 409, 6 N.E.2d 654; Stegeman v. Smith (1966), 67 Ill.App.2d 451, 214 N.E.2d 597.) Furthermore, the trial judge who denied Minnie’s petition decreed otherwise in the case of Chirikos v. Akathiotis (1972), 9 Ill.App.3d 191, 292 N.E.2d 120, where the defendants were allowed to bid a sum which included their expenditures upon the realty and payments toward a mortgage indebtedness. Concededly, the facts were different in Chirikos v, Akathiotis and Minnie has not accounted for her own rent nor that of tlie second flat and she has made improvements to the property without the consent of her co-tenant. The net credits may be slight; nevertheless, they should be computed. The denial of Minnie Johnsons petition for equitable relief is therefore reversed and the cause is remanded with directions to make a presale determination of the credits, if any, due her.

Affirmed in part; reversed in part, and remanded with directions.

McNAMARA and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE McNAMARA

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James T. Bentley, Defendant-Appellant.
    (Nos. 56255, 56879 cons.;
    First District (3rd Division)
    April 19, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ian Levin, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James T. J. Keating, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with armed robbery, attempt murder and aggravated battery. After a jury trial, defendant was found guilty of armed robbery and aggravated battery. He was sentenced to a term of four to seven years on each charge, the sentences to run concurrently. The jury found him not guilty of the crime of attempt murder. Four points are raised by defendant on appeal: (1) that the trial judge erroneously denied defendant full and fair hearing on his pre-trial motion to suppress identification testimony; (2) that testimony of a crucial defense witness was erroneously excluded; (3) that the trial judge committed reversible error in refusing to exclude from evidence defendant’s prior criminal conviction; and, (4) the trial court erroneously imposed separate sentences for the two crimes arising out of the same conduct.

At a pre-trial hearing on defendant’s motion to suppress the identification testimony, the victim of the robbery, Henry Moore, was the only witness. After Moore had testified, the trial court refused to permit defense counsel to call as a witness the police officer who had been present at the victim’s photographic identification of the defendant. Although, at the beginning of the hearing, defense counsel had stated that he had a female witness in attendance whom he might wish to call, the trial judge refused to allow him to call any other witnesses at the hearing and summarily denied defendant’s motion to suppress identification testimony.

At another proceeding prior to trial, the defendant petitioned the court to exclude from evidence at trial a prior 11 year old conviction for armed robbery. He stated in his petition that he wished to testify at trial, but feared that the prosecution would introduce his prior conviction if he took the stand. Defendant pointed out that in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, the Supreme Court had ruled that a prior conviction more than ten years old was too remote in time to be introduced in evidence. The trial court, in denying defendant’s motion, noted that defendant was serving time on the previous conviction within ten years prior to the instant trial, and therefore did not come within the purview of the Montgomery rule. Defendant had been released from the penitentiary for the prior conviction almost nine years before the instant trial.

At trial, the victim testified that on the night of April 26, 1970, at approximately 11:30 P.M., he was sitting alone on the passenger side of the front seat of his automobile at an intersection in the City of Chicago. The side window was opened. A man, whom he identified as defendant, came up and, after asking for a match, pointed a gun at him. The victim grabbed the gun from defendant’s hand. At this point a shot fired by an unknown third party struck the victim in the back; the victim dropped the gun he had grabbed on the floor of the car. Defendant entered the car and demanded the victim’s money. When the victim stated that the money was in the trunk of the car, the third party withdrew the ignition key and took a suitcase from the trunk. Defendant then ordered the victim to drive the car to an alley two blocks away. There the victim jumped from the car and fled.

The victim was aided by a neighbor and taken to a hospital where he remained for 19 days. At the hospital, ten days after the crime, the victim identified defendant from photographs shown to him by the police officer. The victim further testified that he had originally given the police a description of his assailant as being 5'2" tall with a scar on his left cheek, while defendant was about 5'7" tall with a scar on his right cheek. Although the victim had never seen defendant before, he had heard his name from his girlfriend, Shirley Ervin, and knew that defendant also was dating her.

Shirley Ervin testified at trial that she had dated defendant up until two months prior to the incident in question. She had seen the victim on the evening in question, but had not dated him for three months prior to the crime. After the incident she spoke to defendant about the shooting to which he replied, “He’s not hurt, and I don’t know what you’re talking about.” She resumed going out with the victim after the shooting, and was dating him at the time of trial.

Officer Copeland of the Chicago Police Department testified that the victim identified the defendant from photographs exhibited to him at the hospital. He also stated that nothing had been done to suggest defendant’s identification to the victim. Names were on the back of the photographs shown to the victim. Officer William Mikolitis of the Chicago Police Department testified that he had obtained the picture of defendant shown to the victim from Shirley Ervin.

At trial defendant offered evidence of an alibi. As we have noted, he did not take the stand in his own behalf.

Josephine Hill, an aunt of defendant and an acquaintance of the victim, was to testify as to some statements made to her by the victim. However the court sustained objections to her testimony on the grounds that no proper foundation had been laid for such impeachment testimony. An offer of proof was made that she would have testified that the victim told her at the hospital that he was unable to identify his assailants.

We shall first consider defendant’s contention that he was denied a fair and impartial hearing on his motion to suppress the identification testimony of the victim. Defendant maintains that the summary denial of his motion without giving him the opportunity to call additional witnesses constituted reversible error.

A defendant is entitled to a full and fair pre-trial hearing on a motion to suppress identification testimony. (People v. Robinson, 46 Ill.2d 229, 263 N.E.2d 57.) The failure to conduct such a hearing, or erroneous rulings in the hearing, may constitute harmless error where it is apparent from the record that there clearly was an independent basis for the identification. (People v. Nudo, 131 Ill.App.2d 930, 268 N.E.2d 894; People v. Braden, 34 Ill.2d 516, 216 N.E.2d 808.) Where such is not the case, reversal is required. People v. Pugh, 133 Ill.App.2d 168, 272 N.E.2d 742.

In the present case, the error of the trial judge in refusing to allow defense counsel to present witnesses cannot be said to be harmless. The trial court summarily denied defendant’s motion after hearing only one witness, the victim, and refused to permit defendant to call another witness. We cannot glean from the record what evidence might have been presented by the defendant if he had been allowed to proceed in an orderly manner. The court had no ground for assuming the victim’s testimony with regard to identification procedures was definitive.

We believe that the Robinson case, supra, is controlling. In that case, as here, the court at a preliminary hearing prevented the offering of possibly relevant evidence. In reversing the conviction, the Supreme Court stated at p. 233:

“* * * and until defendant has had the fair and impartial hearing to which he is entitled we cannot make an informed judgment as to whether the identification was influenced by improper proceeding resulting in a denial of due process.”

The same is true in the instant case.

Although in a similar situation the conviction has been vacated (People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152) “and its reinstatement made dependent upon the results of a new hearing on the identification question we find that in view of all the circumstances of this case justice would be better served if the cause were reversed and remanded for a complete new trial.” People v. Robinson, 46 Ill.2d 229, 233-234, 263 N.E.2d 57, 59.

Our decision on defendant’s first contention renders a discussion of his additional point unnecessary. At retrial proper foundation can be laid so that defendant’s impeachment witness may be used. Additionally, defendant’s prior criminal conviction and imprisonment will then come within the purview of the rule enunciated in People v. Montgomery, supra. It would also appear that, if defendant after retrial is again found guilty of armed robbery and aggravated battery, defendant’s argument that both crimes arose out of the same conduct would appear to be valid. Under such circumstances, defendant should be sentenced only for the more serious offense of armed robbery. See People v. Miller, 2 Ill.App.3d 206, 276 N.E.2d 395.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded for further proceedings not inconsistent with the holdings of this opinion.

Judgment reversed and cause remanded.

DEMPSEY, P. J., and McGLOON, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Gerald Jenkins, Petitioner-Appellant.
    (No. 56460;
    First District (3rd Division)
    April 19, 1973.

      Douglas M. Branson, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

Gerald Jenkins and Willie Clark were found guilty by a jury of the crime of burglary. Jenkins was sentenced to the penitentiary for a term of 15 to 25 years; Clark for a term of 10 to 20 years. The convictions were appealed and affirmed. (People v. Clark (1966), 78 Ill.App.2d 336, 223 N.E.2d 272.) Jenkins thereafter filed a pro se petition under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1969, ch. 38, par. 122—1, et seq.) Counsel was appointed for him and an amended petition was filed. A hearing was held on the State’s motion to dismiss the amended petition; after hearing the arguments of counsel the trial court denied the petition on its merits.

The defendant’s amended petition questioned three aspects of his trial: the adequacy of his representation, the final argument of the State and the conduct of the judge. He charged that his trial attorney was incompetent; that the prosecutor’s final argument was prejudicial, and that the trial judge improperly presided over the trial by incorrectly advising prospective jurors as to the presumption of innocence, by becoming an advocate for the State during the opening argument of the defense and by curtailing cross-examination of the State’s witnesses.

In its motion to dismiss the petition the State asserted that: the defendant’s allegations failed to raise any constitutional questions within the purview of the Post-Conviction Act; the allegations which in their broadest sense might have raised such questions were unsupported and thus were insufficient to require a hearing, and the doctrine of res judicata was applicable because of the direct appeal. A copy of the opinion in People v. Clark was appended to the motion.

Jenkins advances three contentions in this appeal. The first of these concerns the propriety of remarks made by the court at the original trial. This contention could have been raised in the prior appellate review of his conviction but was not. Under this circumstance, the issues actually raised on appeal are res judicata. Issues that could have been raised and were not are considered waived. (People v. French (1970), 46 Ill.2d 104, 262 N.E.2d 901; People v. Derengowski (1970), 44 Ill.2d 476, 256 N.E.2d 455; People v. McCarroll (1973), 10 Ill.App.3d 249, 294 N.E.2d 52.) Fundamental fairness may sometimes require a relaxation of the waiver rule (People v. Armes (1967), 37 Ill. 2d 457, 227 N.E.2d 745; People v. Hamby (1965), 32 Ill.2d 291, 205 N.E.2d 456); however, the comments complained about, although not always the most fitting examples of judicial restraint, do not warrant such relaxation.

The second and third contentions concern the post-conviction proceeding itself: the defendant was not afforded a full and fair hearing and he was denied due process because the same judge who presided at the trial ruled on his post-conviction petition.

We find no merit in the defendant’s contention that he was not afforded a full and fair hearing. All of the defendant’s post-conviction claims — incompetency of his trial attorney, improper conduct of the court and prejudicial closing argument by the prosecutor — were barred by the applicability of res judicata and waiver. His counsel argued capably and was in fact complimented upon his thoroughness. But, since no new matter beyond the record was brought to the court’s attention and no justification was given for not having raised the issues in the prior appeal, the allegations of the petition did not necessitate an evidentiary hearing. The petition was properly denied.

The defendant’s final contention questions the general principle of Illinois law that in the absence of a showing of substantial prejudice, the post-conviction petition should be heard by the same judge who rendered the original judgment. (People v. Mamolella (1969), 42 Ill.2d 69, 245 N.E.2d 485.) First of all, Jenkins neither made a motion for a change of venue nor filed a petition requesting assignment to another judge. Second, even if the relief were requested, it is evident that it was not necessary to have a different judge preside at the hearing.

The right of a change of venue in a post-conviction proceeding is not absolute. (People v. Newell (1968), 41 Ill.2d 329, 243 N.E.2d 200; People v. Wilson (1967), 37 Ill.2d 617, 230 N.E.2d 194.) However, in certain circumstances a trial judge should disqualify himself if it appears that he may be biased or may be a potential witness to events outside of the record. (People v. Williams (1970), 47 Ill.2d 1, 264 N.E.2d 697.) The trial record does not reveal bias on the part of the judge nor the likelihood that he would be a witness in a subsequent hearing. Thus, it was not improper for him to preside over the post-conviction hearing.

The order is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Zelma Wilson, Defendant-Appellant.
    (No. 57229;
    First District (3rd Division)
    April 19, 1973.

      Ackerman, Durkin & Egan, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Roberta K. Cole, and James Veldman, Assistant State’s Attorneys, of counsel,) for tire People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court;

The defendant was indicted for the offense of gambling (Ill. Rev. Stat. 1969, ch. 38, par. 28—1(a)(8)), and after a bench trial was found guilty and sentenced to the House of Correction for ninety days. In this appeal the defendant contends that the indictment under which she was tried lacked the necessary certainty to charge an offense and was therefore void, and that the trial judge, when imposing sentence upon her, considered matters in aggravation that were improper and prejudicial.

We affirm.

On July 6, 1970, Officer William Mitchell of the Chicago Police Department was assigned to execute a search warrant upon the third floor apartment at 1544 East 66th Place in Chicago. When he arrived, he gained entry to the premises as a person was leaving. As he entered the apartment he saw the defendant seated at a card table which was covered with policy, lottery and gambling paraphernalia, policy writings and policy result tickets. Also on the table was ten dollars in United States currency. He placed the defendant under arrest and seized the policy tickets and currency.

The defendant was indicted for the offense of gambling in that she “knowingly set up, promoted, sold, offered to sell, possessed and transferred policy tickets and other similar devices, in violation of Chapter 38, Section 28 — 1(a)(8) of the Amended Illinois Revised Statutes 1969.” She pled not guilty, and on the trial date waived a jury. After Officer Mitchell testified to the facts surrounding her arrest, it was stipulated between the parties that the papers recovered were policy tickets and these items, together with the $10, were admitted into evidence. The defendant did not testify or offer any evidence in her own behalf.

The defendant was found guilty, and during the hearing in aggravation and mitigation the State showed that the defendant had been previously convicted of gambling on six occasions between September 1966 and May 1970. In mitigation defense counsel argued that gambling should not be a crime and that policy writing is a part of the defendant’s “culture.” The trial judge imposed sentence with the following remarks:

“THE COURT: I don’t think there is any doubt but what the defendant doesn’t feel that writing policy is a crime or that it is a social question. The only problem is how we stop her from writing policy. She just won’t stop.
Outside of the convictions mentioned by counsel there, I couldn’t help but perusing the three sheets of arrests; I suppose many arrests without convictions, as is usual in this type of case. Probation hasn’t worked. Fines haven’t worked. I don’t know what to do.
The only thing I can think of is a sentence. Ninety days, House of Correction.” R. 98, A. 6.

The defendant first argues that the indictment charging her did not state an offense with the required specificity. The defendant relies solely on the case of People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 340, to support her argument that the indictment is void. In that case the two defendants were charged with violating the same section of the Illinois Criminal Code as is the instant defendant. However, the indictment was phrased in the disjunctive. In other words, the indictment in that case charged that each defendant set up or promoted a policy game or sold policy tickets, etc., in violation of the statute. There the Supreme Court held that charging the acts allegedly involved in the disjunctive lacked the necessary certainty to charge an offense because the acts constituting the crime were clearly disparate and distinctly alternative.

The phrasing of the indictment in the instant case is quite different. It charged that the defendant committed the offense of gambling in that she knowingly “set up, promoted, sold, offered to sell, possessed, and transferred policy tickets and other similar devices.” The defendant’s contention that the use of the comma and the conjunctive “and” instead of the disjunctive “or” manifests the same defect that was held to be error in Heard is incorrect. When a statute forbids several things in the alternative as does par. 28 — 1(a)(3), it is usually construed as creating but a single offense, and the indictment may charge the defendant with committing all the acts, using the conjunctive “and” where the statute uses the disjunctive “or.” (Blemer v. People (1875), 76 Ill. 265; People v. Calcione (1938), 369 Ill. 154, 15 N.E.2d 859.) There are a number of federal cases wherein the validity of the indictments was upheld when the various acts constituting the alleged crime were separated by a comma and finally joined together by the conjunctive “and” as was done in the instant case. (Morrison v. United States, 365 F.2d 521 (D.C. cir. 1966); Fields v. United States, 408 F.2d 885 (4th cir. 1969).) The instant indictment does not suffer from the same defect proscribed in Heard.

The defendant next argues that the trial judge considered matters not properly in aggravation after he had found the defendant guilty but before he imposed sentence upon her. She contends that the comment of the trial judge that he “could not help but peruse the three sheets of arrests” indicates that he considered these records of prior arrests without convictions as a factor in imposing sentence when he should only have considered previous convictions. The defendant reasons that because the trial judge commented upon these previous arrests immediately before imposing sentence, this fact so prejudiced her that the sentence imposed cannot stand. We do not agree.

There is no doubt that certain matters, such as prior arrests without convictions, are not properly admissible during a hearing in aggravation and mitigation. (People v. Riley (1941), 376 Ill. 364, 33 N.E.2d 872.) However, the mere fact that a trial judge, before imposing sentence, is aware of certain inadmissible facts does not automatically insure a reversal of that sentence. The function of a reviewing court is not to determine whether the record is perfect, but to determine whether defendant had a fair trial. Where it can be said from the record that an error complained of could not reasonably have affected the result of the trial, the judgment of the trial court will be affirmed. (People v. Lairson (1971), 131 Ill.App.2d 612, 266 N.E.2d 735.) In the instant case, the trial judge was properly informed of the fact that the. defendant had been previously convicted six times for the offense of gambling. As a result of the first two convictions, the defendant was placed on probation, and as a result of the latter four, she had been fined. We are convinced that as the defendant stood before the trial judge convicted of gambling for the seventh time in less than five years, the mere fact that he was aware that she had been previously arrested without being convicted could not have materially prejudiced her position or seriously impaired her standing in the eyes of the trial judge.

For the above reasons the judgment and sentence of the circuit court of Cook County are affirmed.

Judgment affirmed.

DEMPSEY, P. J., and McNAMARA, J., concur.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Ware, Jr., et al., Defendants-Appellants.
    (No. 55770;
    First District (5th Division)
    April 19, 1973.

      James J. Doherty, Public Defender, of Chicago, (Michael Weininger, Assistant Public Defender, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Cary A. Lind, and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

A jury found defendant, Frank Ware, guilty of both aggravated kidnapping and rape, and defendant, Elizabeth Ware, guilty of aggravated kidnapping and deviate sexual assault. Frank was sentenced to concurrent terms of 25-50 years for aggravated kidnapping and 10-20 years for rape. Elizabeth received concurrent terms of 20-30 years for aggravated kidnapping and 7-14 years for deviate sexual assault. Frank Ware and Elizabeth Ware are husband and wife. Both defendants appeal.

The issues presented for review are as follows: Whether defendants were found guilty of each offense beyond a reasonable doubt, whether defendant, Elizabeth Ware, was denied her right to a speedy trial, and whether the defendants’ sentences were excessive.

The State’s case consisted of testimony of Chicago policemen, F.B.I. officers, and the two complaining witnesses Maryann Vani and Mary Leah Van Daele. The defendants produced no witnesses and chose not to testify. The facts, as established by the corroborating testimony of the two gills, are summarized.

Around midnight Sunday, August 3, 1969, the two girls met defendants near the “Old Town” area of Chicago. Since the girls would pass through Maywood, Illinois, on their way home, they offered defendants a ride there upon learning that defendants resided in Maywood. The four exited the Eisenhower Expressway at Homan Avenue upon defendants’ request, proceeding to the rear of an apartment building. Frank Ware then pulled a gun and demanded the two girls park the car and enter a dark apartment.

In the apartment the defendants lit a single candle and forced the complaining witnesses to lie down on a mattress. The girls were ordered to sniff glue from a paper bag. When they refused, Frank punched Mary Leah in the stomach and Elizabeth slapped Maryann in the face to force compliance. After Frank left the apartment to get some beer and wine, Elizabeth ordered Mary Leah and Maryann to strip naked. Elizabeth also stripped naked. After Frank returned and removed all of his clothes, the two girls were ordered to drink wine, smoke marijuana, and dance in the nude. Then Elizabeth engaged Mary Leah in deviate sexual conduct, and Frank engaged Maryann in sexual intercourse. Both girls resisted the actions of the defendants.

The next morning Frank and Elizabeth discussed how to get a ransom, got details as to the girls’ families, and then Frank went out of the apartment and upon his return told the girls he had made arrangements with their parents and that they would bring the money. He told the girls that he convinced their parents that if they gave trouble he would kill the girls, that when he got the money they would be released. During the morning the girls discussed tying sheets together for the purpose of escaping. When they stood next to the window, Frank yelled at them to get away. Maryann, accompanied by Elizabeth, left the apartment twice that morning. She phoned her mother to urge her to just bring the money and not notify the police because if she did, somebody would be hurt. Her mother knew about the ransom money because her mother had been previously called by Frank, and her mother became hysterical on the phone. Her sister then got on the phone and said the money was ready. Although Mary Leah was alone in the apartment for a brief period of time, she was afraid to attempt escape because Frank had warned her of Black Panthers guarding the apartment. That day Frank engaged Maryann and Mary Leah in sexual intercourse, Elizabeth engaging Maryann in another act of deviate sexual conduct. The two girls were forced to drink “spiked” tea and submit to numerous injections with a syringe.

On the evening of August 4, 1969, Frank proceeded to the 4-Star and Alex Theaters to rendezvous with the parents of the two gills. He received the sum of $2000 from each parent. After the last exchange, he was arrested by the F.B.I. and the Chicago Police who had him under continuous surveillance. Elizabeth was arrested at approximately 9:00 P.M. as she left the apartment with Maryann and Mary Leah. During questioning, Frank acknowledged the sexual activity, but claimed that it occurred with the girls’ consent. The girls admitted that they were physically unmarked, but claimed to have resisted the defendants’ advances by yelling, pleading, crying, and, in one instance, biting the aggressor.

On September 10, 1969, the defendants were arraigned, both being represented by private counsel. On February 11, 1970, a new attorney, representing both defendants, replaced the original one. On May 25, 1970, the second attorney withdrew. On July 10, 1970, a third private attorney filed an appearance, and was granted leave to withdraw on the same date, the Public Defender replacing him. Both defendants, admittedly, were responsible for delays in the trial up until July 10, 1970 by reason of their filing a variety of motions. On August 28, 1970, an Amended Motion to Dismiss Charges was filed, containing the names of both defendants and the signature of Frank only. Hearings on the Motion to Dismiss were held on July 27, 1970 and August 24, 1970 on behalf of both defendants. Although Elizabeth did not address the court, she was present at all times and never expressed the slightest reservation about the proceedings. On November 13, 1970, Elizabeth filed a Petition for Discharge under Ill. Rev. Stat. 1969, ch. 38, sec. 103 — 5(a), alleging that the trial was delayed 126 days, and that she did not cause the delay. The trial began on November 19, 1970.

OPINION

Defendants’ theory is that the girls consented to the sexual acts and the confinement and concocted the idea of ransoming themselves to their parents. The State has the burden to prove beyond a reasonable doubt that the act of sexual intercourse and deviate sexual conduct was performed forcibly and against the will of the victim. (People v. De Frates (1965), 33 Ill.2d 190 N.E.2d 467; People v. Sanders (1967), 82 Ill.App.2d 159, 227 N.E.2d 79; People v. Myers (1968), 92 Ill.App.2d 129, 234 N.E.2d 811.) However, “useless or foolhardy” acts of resistance are not necessary. (People v. De Frates (1965), 33 Ill.2d 190, 194, 210 N.E.2d 467, 469.) In that case, the only evidence of danger was a statement made by defendant; “Shut up or I’ll beat you.” In the case at bar, the two girls were in a strange apartment, stricken with fear from a gun threat, slapped and punched by defendants, and forced to smoke marijuana, drink “spiked” tea, and submit to a syringe injection. Thus, under the De Frates standard, the State has met its burden. At any rate, the girls did resist most of the defendants’ advances by yelling, pleading, crying, and, in one instance, biting the aggressor. These actions are inconsistent with the contention of the defense that the girls consented to the sexual acts.

Defendants’ reliance on the lack of bruises or marks on the bodies of the two girls as tending to prove consent to the sexual acts is misplaced. In People v. Pennington (1966), 75 Ill.App.2d 62, 220 N.E.2d 879, the court sustained a conviction for rape even though no evidence of bruises or injuries existed.

Defendants were convicted of aggravated kidnapping for secretly confining the two girls against their will, coupled with either the commission of a felony upon them, or with the purpose of obtaining ransom. (Ill. Rev. Stat. 1969, ch. 38, sec. 10—2.) The girls’ lack of consent to the confinement is a necessary element to the aggravated kidnapping charge, as is their lack of consent to the sexual acts necessary to sustain conviction for the sex offenses. Defendants argue that since the girls were, for the most part, unaware of the presence of the gun after the initial threat to induce then entering the apartment, no sufficient showing of force was made to sustain either the aggravated kidnapping or sex offense convictions. We feel that the mere knowledge that the gun was present in the apartment coupled with the early display of willingness to use it by Frank Ware was sufficient to instill fear in the two victims. With this existing fear, no further specific threats need be proved, only an unwillingness on the part of the victims, certainly proven here (see supra).

Defendants also argue that the two girls had opportunities to escape, their failure to do so indicating a desire to remain in the company of defendants. The prosecution points out, that all the alleged opportunities occurred after the three charged crimes were consummated. However, if the girls did in fact have a clear opportunity to escape and showed no desire to do so, defendants’ contention that the entire chain of events occurred with the consent of the girls would become believable. We do not find that a clear opportunity to escape existed. Mary Leah testified that the two girls discussed sticking together to avoid harm. On all but one occasion, when Maryann left the apartment accompanied by one defendant, the other defendant guarded Mary Leah. Thus, Maryann had reasonable cause to fear for the safety of Mary Leah, left behind. On one occasion, Mary Leah was left alone in the apartment. She testified to a fear of Black Panther “guards” watching the place, as Frank Ware had warned her. At any rate, Mary Leah certainly had good reason to fear for the safety of Maryann should the former escape.

Since defendants offered no proof to support their defense that the two girls concocted the kidnapping scheme, we need not consider it here. The testimony of each girl was entirely consistent with and fully corroborated the testimony of the other. Defendants, exercising their privilege not to take the stand, introduced no evidence to contradict the girls’ testimony. Accordingly, we find that the defendants were proven guilty beyond a reasonable doubt of the crimes as charged.

Defendant, Elizabeth Ware, contends that from July 10, 1970 until the filing of the petition for discharge on November 13, 1970, she did not cause a delay in her trial and demands her discharge pursuant to Ill. Rev. Stat. 1969, ch. 38, sec. 1035(a). ***She alleges that the court never addressed her personally, treating Frank and her as one person. Elizabeth argues that her husband, Frank, caused all the delays after July 10, 1970, by filing and arguing motions without her consent. However, the record clearly indicates that Elizabeth joined Frank on all motions filed and appearances entered. Even though only he signed each document, her name along with Frank’s appears on each. The record indisputably shows that Elizabeth was present at all times on July 27 and August 24, 1970 when the motions were heard in court. On the latter date, when she did not appear in court, the judge inquired about her absence and delayed the proceedings until she was present.

The following conversation in court on August 24, 1970 is further evidence of the court’s concern for her rights:

“THE COURT: What about your wife?
FRANK WARE: If she goes down, I will take her down. I won’t sell her out.
THE COURT: You are exercising influences on her. Don’t you thing this woman is entitled to a defense?
FRANK WARE: Well, Your Honor, she is an intelligent woman. I think she understands what is going on here * *

While this conversation and all others were taking place in her presence, Elizabeth never objected that her rights were being violated. Nothing in the record shows that Frank was acting only on his own behalf during the period in question. Therefore, we hold that Elizabeth is charged with all the delays caused by her husband, and Ill. Rev. Stat. 1969, ch. 38, sec. 103—5(a) is fully complied with. In addition, since the petition for a new trial did not contain this discharge argument, we need not consider it on appeal. People v. Irwin (1985), 32 Ill.2d 441, 443, 207 N.E.2d 76, 78; People v. Hairston (1970), 46 Ill.2d 348, 366-7, 263 N.E.2d 840, 851-2.

Finally, the sexual activities forced upon the two unwilling victims were so revolting that this court omitted many of the details from this opinion. The sentences for each offense are well within the statutory limits. The trial judge had an opportunity, superior to ours, “in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed * * (People v. Taylor (1965), 33 Ill.2d 417, 424, 211 N.E.2d 673, 677; People v. Adams (1969), 113 Ill.App.2d 205, 220, 252 N.E.2d 35, 43.) Even though defendants had no prior criminal record, we do not feel that this is an appropriate case for this court to exercise its power to reduce the sentences in respect to either defendant.

The judgments are affirmed.

Affirmed.

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

       Section 103 — 5(a) provides in part:
      “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant 6 *


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Charles Evans, Petitioner-Appellant.
    (No. 58012;
    First District (5th Division)
    April 19, 1973.
    Barry Holt, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and James Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE GOLDBERG.

text:
    Thomas Pavlik et al., Plaintiffs-Appellants, v. Bonifield Brothers Truck Lines, Inc., et al., Defendants-Appellees.
    (No. 55464;
    First District (1st Division)
    April 23, 1973.
    Joseph E. Fitzgerald, of Chicago, (Dom J. Rizzi, of counsel,) for appellants.
    Howard & French, of Chicago, (Richard G. French, of counsel,) for appellees.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    Betty Horn, Plaintiff-Appellant, v. Bruce Douglas, Defendant-Appellee.
    (Nos. 54799, 54911 cons.;
    First District (2nd Division)
    April 24, 1973.
    Arnold & Kadjan, of Chicago, (Hugh B. Arnold and Dom J. Rizzi, of counsel,) for appellant.
    Timothy J. Glick, of Pretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellee.
   PER CURIAM.


author: Mr. JUSTICE SCHWARTZ

text:
    Donald G. Reid, Plaintiff-Appellant, v. NX Corporation f/k/a Nuveen Corporation et al., Defendants-Appellees.
    (No. 55904;
    First District (2nd Division)
    April 24, 1973.

      A. Denison Weaver, of Chicago, for appellees.
    William T. Hart and Allan Horwich, both of Chicago, for appellant.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

This action was brought to rescind the purchase of certain shares of stock acquired by plaintiff from the defendant corporation. Plaintiff bases his claim on provisions of Ill. Rev. Stat. 1967, ch. 121½, pars. 137.1-137.19. The Act, known as The Illinois Security Law of 1953, provides for a rescission of the sale of certain securities where such sale is not registered with the Secretary of State. However, certain types of securities and certain transactions are exempt (pars. 137.3 and 137.4). The trial court found that the transaction complained of in this case was exempt, that the plaintiff was a “dealer” and therefore not entitled to the remedy invoked. From that order plaintiff appeals. The facts follow.

In July 1968, plaintiff was president of Ashwell & Company [Ashwell] whose business was dealing in commercial paper and other short-term negotiable instruments. Discussions were initiated between plaintiff and defendant Frank Wendt, who was president of defendant John Nuveen & Co. [Nuveen]. These discussions involved the prospective acquisition of Ashwell’s assets by Nuveen and the employment of plaintiff by Nuveen. An agreement was entered into whereby Nuveen would purchase certain assets of Ashwell’s and plaintiff would be employed as vice-president of Nuveen in charge of commercial paper. His annual salar)7 was set at $43,000.

On September 23, 1968, plaintiff purchased 650 shares of Nuveen stock for the sum of $27,452.10. He contends that representations were made to him that the purchase of this stock was necessary to meet certain requirements of the New York Stock Exchange. Defendant contends that plaintiff was under no compulsion to purchase the stock and that he did so only to enhance his status in the industry by qualifying himself for allied membership on the New York Exchange. An examination of the Exchange requirements as set forth in the record reveals that before allied membership on the Exchange could have been obtained the applicant was required to own at least one-fourth of one per cent of the voting stock of the corporate member. The stock purchased by plaintiff fulfilled this requirement.

On January 31, 1969, plaintiff purchased an additional 150 shares of Nuveen common stock. His employment at Nuveen continued until the summer of 1969 when, due to financial reverses, the company was forced to make certain economy moves, including cutting back on the number of high-salaried employees. Plaintiff was one of the officers discharged. He testified that he then learned the market value of his stock had fallen below $5.00 per share. Since ownership of stock was limited to Nuveen employees, plaintiff was limited as to the number of prospective purchasers for his shares. However, he found a qualified buyer who bought the original 650 shares on December 24, 1969, for $650. The plaintiff took a deduction on his 1969 income tax return for the loss sustained in the transaction. He made no attempt to dispose of the 150 shares subsequently acquired.

Plaintiff testified that more than five months later [June 1970] he learned from his attorney that he might be entitled to a rescission of his purchase of the stock because Nuveen had not registered the sale with the Secretary of State. No longer owning the 650 shares, he contacted the purchaser, negotiated a repurchase price, and instituted this action after obtain'ng the stock. He appeals from a judgment for defendant, arguing that the trial court erred in failing to order a rescission pursuant to Ill. Rev. Stat. 1967, ch. 121 ¥2, par. 137.13, with provides that a failure to file notice of the sale of securities with the Secretary of State enables the purchaser to resend the sale within six months after learn'ng of the violation.

That Act seeks to protect innocent investors from unscrupulous promoters by requiring registration with the Secretary of State. (Levine v. Unruh„ 89 Ill.App.2d 94.) Additionally, the Act shields the buying publ'c from irrespons;ble or incompetent persons who might be disposing of secur'ties. (Stein v. Twilight Motel, Inc., 29 Ill.App.2d 131.) Subsection C of section 4 of the Act provides that the registration requirements do not apply when the purchaser is himself a dealer. The reason is that it is assumed dealers are capable of protecting themselves and do not require the protection afforded by the Act. See Young, Exemptions from Registration under the Illinois Security Law of 1953, U. Ill. L. Forum 205 (1961).

In section 2.7 of the Act, a dealer is defined as “any person, 909 who engages in this State, either for all or part of his time, directly or indirectly, as agent, broker or principal, in the business of offering, selling, buying and selling, or otherwise dealing or trading in securities issued by another person.” (Emphasis added.) It is our conclusion that plaintiff was a dealer within the meaning of the Act. Moreover, as evidence that the purpose of the Act has not been frustrated, the record indicates that plaintiff, previous to the initiation of this action, had filed with the Secretary of State a statement of occupation and experience in which he stated that he was familiar with the various provisions of the Securities Act of 1953. That being tire case, both the letter and the spirit of the law were complied with, and the trial court properly found that a rescission was not justified.

Judgment affirmed.

LEIGHTON and HAYES, JJ., concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald M. Dodson, Defendant-Appellant.
    (No. 56141;
    First District (2nd Division)
    April 24, 1973.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant was indicted for murder. After a bench trial he was convicted of the lesser included offense of voluntary manslaughter and sentenced to a term of not less than eight nor more than twenty years. Two issues are presented on this appeal:

(1) Whether the warrantless seizure of defendant’s jacket was illegal; and

(2) Whether the evidence established defendant’s guilt beyond a reasonable doubt.

On October 14, 1969 defendant and his cousin, Myron Violet, went to Elsie’s, a tavern in Lyons, Illinois, in defendant’s vehicle. While in the establishment defendant engaged in an argument with a barmaid, Mary Ludington. His cousin admonished him, “You’re just going to get yourself in trouble, you are out looting for it, I don’t want any part of it and I am leaving.” Violet departed the tavern. Defendant then presented his grievance to the tavern owner.

Decedent, Elizabeth Blondín, was a patron of Elsie’s at the time defendant and Violet were on the premises. Mary Ludington had occasion to observe the contents of decedent’s purse during the evening. She described and identified the purse at trial.

After presenting his grievance to the tavern owner defendant engaged in a conversation with decedent. Decedent then informed Ethel Boesch, another barmaid employed at Elsie’s, that “she was going down the street” and, indicating defendant, “this fellow wants to go with me, I don’t know why.” Ethel Boesch then spoke to defendant. He was wearing a jacket with a Standard Oil Company emblem on it. He responded to her inquiries that his name was Gerry and he was employed at the H and W Standard station located at Harlem and Washington, whereupon decedent said: ‘Write that down just in case.” Defendant and decedent departed the tavern together at approximately 3:00 A.M. on October 15, 1969.

Three prosecution witnesses testified that defendant did not appear to be intoxicated while he was at Elsie’s.

Clif Hiller, a fellow employee of defendant’s at the H and W Standard station, testified that he saw defendant drive past the station at approximately 6:30 A.M. Defendant was traveling in the direction of his apartment.

Dr. Stanley Palutsis testified that he observed an automobile, similar in appearance to defendant’s, being operated in an erratic manner in a park across the street from his house at approximately 6:45 A.M. on October 15, 1969. When the automobile departed, he observed decedent’s body near the site where the automobile had been. He immediately telephoned the police.

Officer John Smith of the Riverside Police Department responded to the report. When he arrived at the scene he observed decedent’s body, naked from the waist down, near the roadway. Upon removing the body, he discovered a button beneath decedent’s left elbow. The button was preserved for evidence and was later determined by crime laboratory analysis to be morphologically similar in all visual characteristics to each of the buttons remaining on a jacket owned by defendant.

Defendant reported for work at 9:30 A.M. on October 15, 1969. Shortly thereafter he engaged in a phone conversation with his wife. She expressed anger in telling him that she had found a purse in his automobile. His wife regularly utilized his automobile in traveling to her place of employment, so defendant borrowed a vehicle and went there. Upon his arrival he entered his automobile and discovered a purse on the rear seat. Defendant testified that there was no identification in the purse, so he discarded it in a garbage can. The purse was subsequently recovered and identified at trial as decedent’s.

Defendant testified that he departed Elsie’s with decedent because “she wanted a lift somewhere and I was getting plastered.” He sat in the back seat of the automobile because he was too intoxicated to drive. Decedent sat in the front seat with his cousin, Violet, who had been waiting at the automobile. The three patronized two additional taverns after departing Elsie’s. At the final tavern they visited, defendant exited alone and went to sleep in the car. When he awoke he was alone in the vehicle and it was located in a parking lot behind his apartment building. He went into his apartment and resumed his sleep.

In rebuttal, Officer Smith testified that he was present at the police station during the morning of October 16, 1969 and heard defendant relate that he was alone when he departed Elsie’s and had driven to two other taverns.

Myron Violet was admitted to Chicago State Hospital on or about October 16, 1969 because he had attempted to commit suicide. His mental problems allegedly stemmed from long standing marital difficulties.

Defendant contends that the warrantless seizure of his jacket was illegal and it was, therefore, reversible error to deny his motion to suppress it from evidence. The following evidence was adduced at the hearing on the motion to suppress:

Fay Dodson, defendant’s wife, testified that she was present at their apartment on October 15, 1969 at approximately 10:00 P.M. when police officers arrived and requested defendant to accompany them to the police station. Defendant complied with the request and returned home in the early hours of the morning. He v/ore his jacket to the police station, but was not wearing it when he returned to the apartment.

Defendant testified that four police officers arrived at his apartment at 9:00 or 9:30 P.M. on October 15, 1969. He invited them into the apartment. The officers requested that he accompany them to the police station as they thought he could assist them in regard to an occurrence at Elsie’s. The police advised him to bring his jacket because it was cold outside. They did not assist him in selecting a jacket nor did they suggest that he wear a particular jacket. He was at the police station for approximately two hours on his first visit. Prior to departing the police station, he requested his jacket, but was informed that he could not take it. When he inquired as to the reason for not being allowed to take the jacket he was told that it was being retained as evidence. He was furnished another jacket to wear home.

Police Officer Donald Gossling testified that he arrived at defendant’s apartment at approximately 11:00 P.M. on October 15, 1969 and was admitted inside. He read defendant his “constitutional rights” from a card; defendant acknowledged that he understood them and declined to give a statement. A request was made that defendant accompany the officers to the Riverside Police Department and he voluntarily did so. Before defendant was released from the police station, Officer Gossling asked him for his jacket and defendant gave it to him. The purpose of taking the jacket was to seek evidence.

Officer Smith testified that he found decedent’s body and discovered a button in the course of his investigation. Later that night he had occasion to talk with defendant at the Riverside Police Station. Defendant’s jacket was hanging on a coat tree and each sleeve was missing a button. The buttons remaining on the jacket appeared the same as the button found near the body. Officer Gossling asked defendant to leave his jacket and defendant stated that he would.

The trial court found that there was probable cause to arrest defendant and probable cause to seize his jacket at the time the seizure occurred. Defendant does not contest these findings, but argues that the jacket should have been suppressed because the police failed to obtain a warrant authorizing the seizure.

It is our opinion that the motion to suppress was properly denied as to the jacket. It has been held that objects in plain view of police officers, who have a right to be in a position to have that view, are subject to seizure and admissible in evidence. (Harris v. United States, 390 U.S. 234; People v. George, 49 Ill.2d 372, 274 N.E.2d 26; People v. Stanbeary, 126 Ill.App.2d 244, 261 N.E.2d 765.) In the instant case defendant voluntarily brought the particular jacket to the police station without suggestion from the police officers that he do so. While the jacket was in plain view at the police station, the officers recognized its potential evidentiary value and seized it. Under the circumstances of this case, defendant’s Fourth Amendment rights were not violated. (See Hancock v. Nelson, 363 F.2d 249 (1st Cir.)) We do not consider that Coolidge v. New Hampshire, 403 U.S. 443, commands a different result.

Defendant also contends that the circumstantial evidence adduced at trial was insufficient to support his conviction. A conviction may be sustained upon circumstantial evidence if the proof is of such a nature as to produce a reasonable and moral certainty that defendant perpetrated the crime. (People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770; People v. Hunter, 3 Ill.App.3d 676, 279 N.E.2d 490.) An examination of the record before us does not convince this court that the trial court erred in finding defendant guilty.

Our examination of the record has, however, revealed an additional problem that we have decided to consider. Defendant was indicted for the offense of murder, and the evidence, although circumstantial, was sufficient to support a finding of guilty on that charge. However, the trial court found defendant guilty of the lesser included offense of voluntary manslaughter. Although the corpus delicti for the two offenses is identical, the mental states are different. Sufficient evidence was adduced to establish the mental state necessary to a finding of guilty of the charge of murder, but no evidence was adduced to establish the mental state unique to the offense of voluntary manslaughter. In People v. Bailey, 56 Ill.App.2d 261, 205 N.E.2d 756, under similar circumstances the court exercised its broad appellate discretion to reverse a conviction of voluntary manslaughter and to enter instead a finding of guilty of involuntary manslaughter. The court’s rationale was stated as follows:

“It has been held that where a person is indicted for murder and found guilty of involuntary manslaughter he cannot complain if the evidence was of such a character to justify the court in finding the defendant guilty of murder. [Citations omitted.]
In the case before us, considering all the evidence and also bearing in mind that both the trial court and the jury saw and heard the witnesses, we are of the opinion that the defendant was proved guilty of killing the deceased, beyond a reasonable doubt. [Citations omitted.]
In finding the defendant guilty the jury indicated that it did not believe the testimony of the defendant but had inferred from all the circumstances that defendant had killed his wife. This being so, it can be inferred from the uncontradicted evidence that the acts which caused the death of Mrs. Bailey were administered recklessly.” 56 Ill.App.2d 261, 276-277.

We concur- in this reasoning and believe that the disposition in Bailey is equally appropriate under the facts at bar.

Defendant’s conviction for voluntary manslaughter is reversed. We find that under the evidence defendant was guilty of the offense of involuntary manslaughter. The case is remanded to the Circuit Court of Cook County with directions to enter a finding of guilty of involuntary manslaughter and to impose an appropriate sentence.

Reversed and remanded with directions.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1965, ch. 38, par. 121—9. This provision was repealed in 1967, but the powers previously conferred therein have been reaffirmed in Supreme Court Rule 615. Ill. Rev. Stat. 1971, ch. 110A, par. 615.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    Claude Peters, Plaintiff-Appellant, v. Le Roy Hervy et al., Defendants-Appellees.
    (No. 55668;
    First District (4th Division)
    April 25, 1973.

      Paulson and Ketchum, of Chicago, (William J. Harte, of counsel,) for appellant.
    James G. O’Donahue, Francis J. Mullen, Jerome F. Dixon, and Paul Denvir, all of Chicago, for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, Claude Peters, brought an action to recover damages for injuries he sustained by reason of a collision between his automobile and a bus owned by the defendant, Chicago Transit Authority, and driven by its employee, defendant Le Roy Hervy. At the close of the evidence the defendants moved for a directed verdict, and the trial court reserved its ruling. The cause was submitted to a jury and the verdict was against both defendants.

The defendants filed a post-trial motion seeking a directed verdict and in the alternative judgment notwithstanding the verdict. Defendants further filed an amendment to the motion seeking a new trial. Subsequently, the court entered an order granting the motion of defendants for a directed verdict. Conditionally, if that ruling were to be reversed, the court granted the defendants’ motion for judgment notwithstanding the verdict. The defendants’ motion seeking a new trial was denied.

Plaintiff appealed from the judgment in favor of the defendants, seeking to have this court remand the cause to the Circuit Court with instructions to reinstate the jury verdict for plaintiff. The defendants filed a cross-appeal seeking a new trial in the event this court should reverse the judgment for a directed verdict and the conditional judgment notwithstanding the verdict.

There were only two occurrence witnesses, the plaintiff, Claude Peters, and the bus driver, Le Roy Hervy. On March 24, 1965, plaintiff, who was employed as a conductor for the Penn Central Transportation Company, left work at 11:00 P.M. He went to a neighborhood tavern where he shot pool and had two bottles of beer. He left and drove west on 47th Street, which is a four-lane through street. The street was wet. As he approached Drake Street, plaintiff said he was driving at about 20 to 25 miles per hour. At Drake and 47th Street there is a bus turnaround. The buses enter the turnabout a block or so north of 47th Street and use Drake Street to get to 47th Street where they turn left for the eastbound trip.

Plaintiff testified that when he was within 30 or 40 feet from Drake Street, a bus came out of the turnaround into 47th Street. He said he hit his brakes and the front end of his car collided with the bus, near its front wheel. He stated that the bus was going about ten miles per hour. On cross-examination, plaintiff said that he was looking ahead as he approached Drake and did not see the bus until it was approaching the middle of 47th Street about 30 feet in front of him.

The defendant, Le Roy Hervy, was called by the plaintiff as an adverse witness. He stated that on the day of the collision, he had been employed by the Chicago Transit Authority for about a year, and had been operating a trolley bus for about a month. The accident occurred on the last run of the day. Defendant explained that from the terminal at 47th and Drake, he would go eastbound to Lake Park, where there is a turnabout, and back again to the Drake Terminal. He did not know whether he was early or late or how long he waited at 47th and Drake. No other buses were at the terminal. He first stopped his bus “about center-way of the little terminal we have there.” He was reasonably sure he did not turn off the lights on the bus. He did not recall if he had any passengers at the time. When asked to be specific as to whether he recalled stopping anywhere in the terminal he replied, “No, I can’t honestly say I stopped in the terminal. No.” He said he stopped at the crosswalk and checked the westbound traffic. His intention was to make a left turn on 47th Street. The front end of the bus was at the curb. He stopped long enough to check the on-coming traffic from the left. At that time plaintiff’s vehicle was “about a block and a half away or more.” He then proceeded into the street. While in motion he checked the traffic that was eastbound. He did not believe he exceeded five miles an hour as he proceeded into 47th Street. As the front end of his bus reached tire middle of 47th Street, the impact occurred.

In Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, the Supreme Court stated,

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Applying this standard to the present appeal, we are of the opinion that the trial judge erred in directing a verdict for defendants and conditionally, granting defendants’ motion for judgment n.o.v.

The evidence, when viewed in its aspect most favorable to plaintiff, showed that Peters was travelling at 20 to 25 miles per hour, well within the speed limit, on a preferential street. He was looking ahead at all times. The plaintiff stated that he did not see the bus driven by defendant until it was approaching the middle of 47th Street, about 30 feet in front of him. We think the jury might reasonably have inferred from these facts that the defendant’s bus pulled suddenly into the street, and that plaintiff, in the exercise of due care, was unable to avoid the collision. We cannot say that the plaintiff was guilty of contributory negligence as a matter of law as we must to affirm. It was for the jury to decide whether any negligence on the part of plaintiff contributed to cause the collision.

Defendants argue that one who fails to look at a plainly observable danger and is injured thereby is guilty of contributory negligence. They also maintain that one who looks may not be heard to testify that he did not see what was within his unobstructed view. We agree with these propositions, but find that they are inapplicable to the facts of this case.

In the instant case, it was a jury question as to whether there was a plainly observable danger to be seen. Plaintiff testified that he was looking ahead at all times and that he did not see the bus until it was within 30 feet of his car. By defendant Hervy’s testimony, his bus was stopped at the cross-walk prior to entering 47th Street. It seems to us that the jury might reasonably have inferred that there would have been no collision had the bus driver cautiously entered the preferential street.

We are not persuaded that plaintiff is bound by the testimony of defendant Hervy who was called as an adverse witness. We are satisfied that he was called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 60), notwithstanding the failure to use the words “Section 60.”

Section 60 provides in relevant part as follows:

“Upon the trial of any case any party thereto * # # may be called and examined as if under cross-examination at the instance of any adverse party. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by counter-testimony * *

In the instant case, the defendant bus driver stated that plaintiffs car was about a block and a half away when he pulled his bus out of the turnaround. The plaintiff, in contrast, testified that he was travelling at 20 to 25 miles an hour when he first saw the defendant’s bus 30 to 40 feet away, and that he could not stop in time. Since the defendant bus driver’s testimony was contradicted by that of the plaintiff, it was the jury’s duty to decide which witness to believe.

Since we are reversing the granting of the directed verdict and the conditional granting of the judgment notwithstanding the verdict, we have also considered the cross-appeal filed by defendants requesting a new trial. What we have hereinabove stated applies on this issue. We have examined the record and conclude that the verdict is not against the manifest weight of the evidence. The ruling of the trial court denying a new trial is therefore affirmed.

For the reasons given the order granting defendants’ motion for a directed verdict or conditionally a judgment n.o.v. is reversed and the cause is remanded with directions to enter judgment in favor of plaintiff and against defendants in accordance with the jury’s verdict.

Reversed and remanded with directions.

ADESKO and DIERINGER, JJ., concur.


text:
    Marjorie Bowman, Plaintiff-Appellant, v. Cecil A. Bowman, Defendant-Appellee.
    (No. 56442;
    First District (4th Division)
    April 25, 1973.

      Sol I. Dvorkin, of Chicago, (Ellis B. Rosenzweig, of counsel,) for appellant.
    J. W. Marciniak, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the co rut:

Defendant, Cecil A. Bowman, brought a post-degree divorce proceeding seeking to terminate alimony payments provided for by the divorce decree pursuant to a property settlement agreement with the plaintiff, Marjorie Bowman. Plaintiff appeals from the trial judge’s order terminating alimony.

The parties were married on June 28, 1941, and divorced by decree entered December 11, 1964. Two children were born of the marriage, one of whom was a minor at the time of the divorce. Before entry of the decree, the parties entered into a written property settlement agreement providing that the defendant, among other things, pay the plaintiff $20 per week as alimony and $15 per week as child support. The child support payments terminated in 1969 when the parties’ one minor child reached majority.

At the prove-up divorce proceedings on December 3, 1964, Mrs. Bowman testified that she was earning a net salary of $36 a week and that her husband was earning approximately $130 a week in net pay.

On June 16, 1971, defendant Cecil Bowman filed a petition to terminate alimony, alleging that plaintiff had obtained permanent employment with income sufficient to support herself and that the defendant had remarried. Plaintiff Marjorie Bowman filed a motion to strike the petition, charging that the defendant had failed to allege any substantial change of circumstances.

At the hearing on the petition to terminate alimony, Mrs. Bowman testified that she was a janitress for the Board of Education and had a net take home pay every two weeks for ten months out of the year of $200. The record reveals that Mr. Bowman has been employed by Bell & Howell for approximately sixteen years. His net income on the date of the hearing was $150 per week. The defendant is remarried, but has no children by his second marriage. His present wife is employed.

Section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19), provides in relevant part:

“The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance, and the care, education, custody and support of the children, as shall appear reasonable and proper.” (Emphasis added.)

Although the trial court clearly has the power to terminate alimony awards, such modifications may not be made arbitrarily or capriciously. The petitioner must show that a substantial change in the circumstances of the parties has taken place since the entry of the decree. Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486; Gregory v. Gregory, 52 Ill.App.2d 262, 268, 202 N.E.2d 139, 142.

In the instant case, defendant alleges that the employment of his former wife by the Board of Education and his own remarriage amount to a material change of circumstances justifying the termination of the alimony award. We do not agree. The record reflects that plaintiff, Marjorie Bowman, was employed at the time the decree was entered. Although her income has increased since the date of the decree, so has that of her former husband. Moreover, the law is clear that the remarriage of the defendant is not in and of itself a sufficient ground to warrant modification of the decree. (Gregory v. Gregory, 52 Ill.App.2d 262, 268, 202 N.E.2d 139, 143.) In the instant case, there are no children by the second wife and defendant’s present wife is, employed.

The alimony awarded in the decree was part of a property settlement agreement, voluntarily entered into by the parties, which also included provisions as to dower, homestead and other property rights. We note that Marjorie Bowman agreed to a $20 per week alimony award at a time when her husband was earning approximately $130 per week in net pay, apparently in consideration for the other terms of the agreement. Although the fact that a divorce decree adopts the terms of a property settlement agreement does not affect the court’s power to modify or terminate an alimony award (Herrick v. Herrick, 319 Ill. 146, 149 N.E. 820), we think the existence of an agreement is a factor to be considered.

The case at bar is very similar on the facts to Pearlman v. Pearlman, 131 Ill.App.2d 388, 266 N.E.2d 388. In Pearlman, as here, the divorce decree incorporated a property settlement agreement between the parties. The trial court reduced the amount of the award on application of the husband. The Appellate Court reversed, holding that the award should not have been modified even though, as in the instant case, the wife’s income had increased and the minor child had become emanicipated. As in the case at bar, the husband had remarried and his second wife was employed.

Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486, in which we affirmed the trial court’s order terminating alimony, is distinguishable on the facts from the case at bar. In Tan, there was no property settlement agreement entered into by the parties prior to the entry of the decree. Moreover, in Tan, the marriage was of extremely short duration and there were no chfidren born of it. In the instant case, the parties were married for over twenty years and had two children.

For the reasons stated the order terminating the $20 a week alimony payments is reversed and the cause is remanded with directions to enforce the payment of alimony.

Reversed and remanded with directions.

ADESKO and DIERINGER, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    Anthony Kusek et al., Plaintiffs-Appellants, v. Netta Shamie, Defendant-Appellee.
    (No. 56943;
    First District (4th Division)
    April 25, 1973.

      Richard S. Gore and Bruce S. Berry, both of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, (John D. Cassiday and Joseph A. Camarra, of counsel,) for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiffs, Anthony and Dolores Kusek, appeal from an order entered in the Circuit Court of Cook County dismissing their cause of action pursuant to Supreme Court Rule 103(b) for failure to exercise reasonable diligence in obtaining service on the defendant.

The sole issue presented for review is whether the plaintiffs exercised reasonable diligence in their attempts to obtain service on the defendant.

On July 10, 1967, the vehicle in which the plaintiffs were riding was involved in a head-on collision with another vehicle operated by the defendant, Netta Shamie. At the time of the accident the defendant gave her address as 610 S. Carpenter Street, Oak Park. An investigator representing the plaintiffs obtained a statement from the defendant at the Oak Park address on August 22, 1967. In the statement the defendant asserted her insurance company was representing her in the matter. Thereafter, both the defendant and her insurance company were made aware of the plaintiffs’ claim against the defendant arising from the accident.

During the succeeding months the attorney representing the plaintiffs and the defendant’s insurance company entered into settlement negotiations which proved futile. On April 18, 1969, the plaintiffs filed a lawsuit against the defendant. At that time a summons was issued to the defendant at 610 S. Carpenter, Oak Park. This summons was returned by the Cook County Sheriff’s Department marked not found. Thereafter, on July 16, 1969, an alias summons was issued to the defendant at 2838 N. California, Chicago, the address to which the defendant had allegedly moved. This summons was likewise returned not found but with the notation that the defendant had moved to Trailer H3, 9515 Bryn Mawr, Rosemont, Illinois. Another alias summons was directed to the defendant at that address on August 27, 1969, only to be returned on September 26, 1969, marked not found.

In addition to their efforts to serve the defendant at the three aforementioned locations, the attorneys for the plaintiffs employed Gunther Polak, a private investigator and skip tracer, to locate the defendant. Prior to March, 1971, Mr. Polak, employing the normal methods used by a professional investigator in attempting to locate a party, found five separate addresses where the defendant had at one time, but no longer, resided. Furthermore, at each address where the defendant had resided, Mr. Polak inquired of the present residents and any other people in the area as to then- knowledge of where the defendant might have moved. These inquiries were to no avail. This fact was related to the plaintiffs’ attorneys in the form of four reports Mr. Polak sent from September 26, 1969, to March 9, 1971.

On March 5, 1971, the plaintiffs’ case was dismissed for want of prosecution. This dismissal, however, was vacated on April 1, 1971, because in late March, 1971, the defendant, who had been divorced and remarried and had changed her name to Netta Shamie Okrglsik, was finally found living at 1821 — 75th Street Elmwood Park, Illinois. On April 1, 1971, a third alias summons was issued, a copy of which was served on a member of the defendant’s household on April 10, 1971.

The defendant filed an appearance on May 10. 1971, together with a motion to dismiss the plaintiffs’ cause of action pursuant to Supreme Court Rule 103(b) for failure to exercise reasonable diligence in obtaining service on the defendant. The trial court granted tire defendant’s motion and dismissed the plaintiffs’ cause of action, from which the plaintiffs herein appeal.

The plaintiffs contend their continued attempts to obtain service on the defendant, the use of a professional investigator and skip tracer in attempting to locate the defendant, and the eventual service on the defendant, who was divorced and remarried with a new name, constitute reasonable diligence and, therefore, the trial court improprly applied Supreme Court Rule 103(b) in dismissing their cause of action. In support of their contention, the plaintiffs rely on the language in Alsobrook v. Cote (1971), 133 Ill.App.2d 261, 273 N.E.2d 270, wherein the court stated:

“There is no fixed rule or absolute standard which can be universally applied to determine whether a plaintiff has exercised reasonable diligence to obtain service; each case, of necessity, must be judged and evaluated on its own peculiar facts and circumstances. Courts, however, in making a determination have looked to a number of factors including: (1) the length of time used to obtain service of process, Kohlhaas v. Morse, 36 Ill.App.2d 158, 183 N.E.2d 16; (2) the activities of the plaintiff, Felton v. Coyle, 66 Ill.App.2d 4, 214 N.E.2d 359; Davis v. Anthony, 67 Ill.App.2d 226, 214 N.E.2d 603; (3) any knowledge on the part of the plaintiff of the defendant’s location, Karpiel v. LaSalle National Bank of Chicago, 119 Ill.App.2d 157, 255 N.E.2d 61; Mosley v. Spears, 126 Ill.App.2d 35, 261 N,E.2d 510; (4) the ease with which the defendant’s whereabouts could have been ascertained, Caliendo v. Public Taxi Service, Inc., 70 Ill.App.2d 86, 217 N.E.2d 369; Harvey v. Lippens, 87 Ill.App.2d 363, 231 N.E.2d 613; (5) the actual knowledge by the defendant of the pendency of the action as a result of the ineffective service, Hahn v. Wiggins, 23 Ill.App.2d 391, 163 N.E.2d 562; DeCicco v. Reed, 77 Ill.App.2d 349, 222 N.E.2d 346; and (6) special circumstances which would affect the efforts made by the plaintiff, Hahn v. Wiggins, 23 Ill.App.2d 391, 163 N.E.2d 562.’’

A thorough review of the record, applying the factors set forth in Alsobrook v. Cote, supra, reflects the plaintiffs’ contention that the trial court improperly dismissed their cause of action is well taken. Although the length of time required to obtain service of process on the defendant was approximately two years, the affidavits of both the plaintiffs’ investigator and counsel reflect a continuing effort on the plaintiffs’ part to obtain service throughout the period. Furthermore, whenever the plaintiffs gained any knowledge of the defendant’s location, service in the form of an alias summons was attempted at such location. Finally, we recognize the fact that the defendant had been divorced and remarried, taking a new name, to be a special circumstance which affected the efforts of the plaintiffs to gain service. This is best reflected in tire fact that when the plaintiffs gained knowledge of the defendant’s new name, service not only issued soon thereafter but also was effected.

For these reasons we reverse the findings of the trial court and remand this case with directions to vacate the dismissal of the plaintiffs’ cause of action and reinstate such cause of action on tire trial caH.

The judgment of the Circuit Court of Cook County is reversed and remanded with directions.

Reversed and remanded with directions.

BURMAN, P. J., and ADESKO, J., concur.


text:
    Betty Wilson, Plaintiff-Appellant, v. Edward Krantz et al., Defendants-Appellees.
    (Nos. 56973, 57539 cons.;
    First District (4th Division)
    April 25, 1973.
    Betty Wilson, pro se.

    John L. Ladle, Jr., of Chicago, (Francis D. Morrissey, of counsel,) for appellees David Linn and Leonard Ring.
    Daniel A. Costigan, of Chicago, for appellee Edward Krantz.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiff, Betty Wilson, appeals from an order entered in the Circuit Court of Cook County granting summary judgment in favor of the defendant attorneys.

The sole issue which Mrs. Wilson has presented personally for review is whether the trial court properly granted summary judgment in favor of the defendants. It is not necessary for this court to discuss the argument which Mrs. Wilson presented in a rambling, incoherent and confusing manner, except to say it was completely void of any merit. A motion by the defendants to dismiss the appeal was taken heretofore by this court, and we have reserved ruling on such motion in deference to Mrs. Wilson who was appealing the order of the trial court pro se. Having read Mrs. Wilson’s brief and heard her oral argument in which she admitted consulting approximately fifteen attorneys, including the defendants named herein, we hereby grant the motion of the defendants to dismiss the appeal.

Appeal dismissed.

BURMAN, P. J., and ADESKO, J„ concur.


text:
      In re Estate of Eddie M. Marx, Deceased—(Allison W. Davidson, Petitioner-Appellant, v. Miriam Saunders et al., Respondents-Appellees.)
    (No. 57434;
    First District (4th Division)
    April 25, 1973.
    Allison W. Davidson, pro se.

    Benjamin Meister, of Chicago, for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The administrator of the estate of the decedent, Eddie M. Marx, filed this action in the Circuit Court of Cook County to recover monies held in a joint savings account in the name of the decedent and Miriam Saunders, the mother of his illegitimate daughter, Eulanda.

The decedent died intestate on August 26, 1971, survived by his widow and two sons of the marriage, aged 23 and 25 at the time of trial in March, 1972. He had not lived with his wife and family for some years prior to his death.

On November 14, 1959, the decedent opened a savings account at the Chicago City Bank, and on October 16, 1970, the name of Miriam Saunders was placed on the account. The decedent had been ill and in and out of two hospitals at the time her name was added. She stated the decedent wanted her name on the account so she could draw money out and give Eulanda anything she needed.

On June 25, 1971, Morris Witney, an attorney, testified the decedent conferred with him about removing Miriam Saunders’ name from the bank account. Witney stated he wrote a letter to the bank requesting procedures to be followed, but did not receive a reply, and he did nothing more. On September 2, 1971, seven days after the decedent’s death, Miriam Saunders withdrew $9500 from the joint account after presenting an inheritance tax release to the bank.

The issue on review is whether the evidence presented was sufficient to overcome the presumption in favor of the surviving joint tenant.

In Illinois it is well established there is a presumption of donative intent in favor of a surviving joint tenant of a bank account established according to statutory procedure. (In re Estate of Donnelly (1964), 50 Ill.App.2d 36; In re Estate of Lackie (1964), 51 Ill.App.2d 156.) It is also well established that the person claiming against the survivor of a joint tenancy must prove his case by clear and convincing evidence such that no reasonable doubt is left in the mind of the trier of fact. In re Estate of Weaver (1966), 75 Ill.App.2d 227.

In the case at bar the administrator of the estate claims the decedent added Miriam Saunders’ name to his account merely as a convenience for him while he was in the hospital, and the testimony of Morris Witney concerning the decedent’s desire to remove her name from the account was clear and convincing evidence that no gift was intended.

Whether a gift was intended is determined at the time of the creation of the joint account (In re Estate of Anderson (1966), 69 Ill.App.2d 352), and the only direct evidence was Miriam Saunders’ testimony that decedent wanted her name added to the account “so we could have a joint account in case, you know, that I could draw money out, Eulanda and I — I could give Eulanda the money, anything she needed.”

The fact the decedent may have changed his mind about having Miriam Saunders as a joint tenant, as suggested by the testimony of Morris Witney, is not relevant. In In re Estate of Stang (1966), 71 Ill.App.2d 314, the court said:

“Moreover, evidence of the lack of donative intention must focus upon or relate back to the time of the creation of the joint tenancy. (Murgic v. Granite City Trust and Savings Bank, supra.) Therefore, if the decedent possessed donative intent at the time of the creation of the joint tenancy, a subsequent decision that he did not want his share to pass upon death to the surviving joint tenant is not, in itself, sufficient to sever the joint tenancy relationship.”

The testimony at trial was the decedent wanted Miriam Saunders’ name placed on the account, not as a convenience, but for the benefit of herself and her daughter. Marx had not lived with his wife for some years prior to his death, his children of that marriage were grown, and it is natural for him to want to make provision for Eulanda. Whether he subsequently decided to delete Miriam Saunders’ name from the account is immaterial, especially in light of the fact it was never done and the ease with which it might have been accomplished. We hold the evidence was insufficient to overcome the presumption in favor of the surviving joint tenant.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and ADESKO, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Stovall, Defendant-Appellant.
    (No. 58276;
    First District (4th Division)
    April 25, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Everette Braden, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert Brice, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.