author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Appellee, v. Clarence Walls, Appellant.
    Gen. No. 50,752.
    First District, Fourth Division.
    May 26, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Dean H. Bilton, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged Burglary.

Defense at Trial Alibi.

Judgment

After a bench trial, the court found defendant guilty and imposed a sentence of three to ten years.

Point Raised on Appeal

Defendant did not receive a fair trial because a State witness, the investigating police officer, was excepted from a general exclusion of witnesses.

Opinion

Pursuant to a well-recognized practice in the courts of this state, the judge, in excluding witnesses at the beginning of the trial, made an exception of the investigating police officer. This was done at the request of the Assistant State’s Attorney for the obvious purpose of affording him ready access to the officer’s knowledge of the case throughout the conduct of the trial. This practice has been repeatedly reviewed with approval, and, in some cases, even though the officer was permitted to testify without an express exception having previously been made. People v. Washington, 81 Ill App2d 162, 225 NE2d 673; People v. Jackson, 58 Ill App2d 302, 305-308, 208 NE2d 385; People v. Walker, 50 Ill App2d 394, 396-397, 200 NE2d 26.

Determinative of the case at bar, and definitive on the subject, are the comments made by the Supreme Court in People v. Mack, 25 Ill2d 416, 185 NE2d 154. The defendant in that case, as in the instant case, had sought reversal on the basis of People v. Dixon, 23 Ill2d 136, 177 NE2d 206. In the Mack opinion the court said at pp 422-423: sound basis for such denial. In the Dixon case, the trial judge had flatly denied a motion to exclude witnesses with the remark, “Well, I don’t like to do that.” We reversed and remanded, holding, in effect, that such an arbitrary denial of a motion to exclude amounted to an abuse of discretion.

The defendant, relying upon our recent decision in People v. Dixon, 23 Ill2d 136, contends that the trial court committed reversible error in excepting officer Johnson from the motion to exclude witnesses. We have held that the defendant has no absolute right to have witnesses excluded (People v. Reed, 333 Ill 397), and that the power to exclude witnesses is within the sound discretion of the trial court. (People v. Strader, 23 Ill2d 13.) It is a common practice for a trial court, in granting a motion to exclude witnesses, to except, at the request of the State’s Attorney, one witness for the People, frequently, but not always, one of the arresting officers. This practice has been upheld by this court on numerous occasions. (People v. Strader, 23 Ill2d 13; People v. Townsend, 11 Ill2d 30; People v. Reed, 333 Ill 397.) Nothing in People v. Dixon, 23 Ill2d 136, detracts from the validity of these decisions, and we have cited them with approval in a more recent decision. (People v. Chennault, 24 Ill2d 185, 187.) In the Dixon case we reaffirmed the view that the exclusion of witnesses is a matter within the sound judicial discretion of the trial court, but added that a motion to exclude witnesses should normally be allowed, and that, in order to uphold the denial of a motion to exclude, the record should disclose a

The present case involves no arbitrary denial of the motion to exclude. The motion was granted, except that the court permitted one police officer to remain. In our opinion in the Dixon case, in the same sentence in which we stated that a motion to exclude witnesses should normally be allowed, we recognized that “it may be proper in a particular case to permit one or more witnesses to remain in the courtroom, as in the Townsend and Reed cases.” (23 Ill2d 136, 140.) That is what was done here. When the defense attorney objected particularly to officer Johnson remaining in the courtroom, the trial judge took the position that he would allow the State to keep one police officer, and that he was not in a position to tell which officer it should be. In this we can see no abuse of discretion.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Defendant was also charged with rape and armed robbery, but was found not guilty of those offenses.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Floyd G. Ambrose, Defendant-Appellant.
    Gen. No. 50,818.
    First District, Fourth Division.
    May 26, 1967.

      Leon Friedlander, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Charge

Unlawful use of weapons.

Defense at Trial

Evidence of guilt, admitted at trial over defense objection, was obtained by unconstitutional search and seizure incident to an illegal arrest.

Judgment

After a bench trial, the court found defendant guilty and imposed a one-year probation.

Points Raised on Appeal

Same as at trial.

Evidence

Testimony of Witnesses for the State

About noon on November 11, 1964, Mrs. Ann Lanovich of 9559 South Albany, Evergreen Park, Illinois, called the police and complained that a man, who turned out to be defendant, had been observed sleeping in a prairie ditch near some railroad tracks in back of a bank parking lot and visible from the Lanovich home. Children passed this place on their way to and from school. Defendant had been talking to some children, one of whom was Steve Lanovich, age 14, who testified that defendant had been mumbling incoherently during periods of consciousness. A lot of children gathered and watched defendant. He did not threaten any of the children.

Officer Nolan responded to a complaint that a man was stopping children and talking to them. When he arrived on the scene, defendant had gotten up and was walking through the bank parking lot. The officer stopped defendant and tried to question him, but defendant was incoherent, highly excited and acting oddly. During the conversation with the officer, defendant urinated in his pants. He was taken to the police station and told to empty his pockets prior to being put in the lockup. He only partially complied, and when police then searched him, they found a loaded Smith & Wesson revolver concealed in one of his pockets. Subsequent investigation revealed that defendant had an automobile which was being serviced that morning at a garage in the area and he had been told it would not be ready until noon of that day.

Defendant was charged with disorderly conduct and unlawful use of weapons. (He was found not guilty of the former offense.)

Testimony of Defendant

Defendant had taken his automobile to a service station in the village earlier that morning and was told it would not be ready until noon. As he was very tired, he lay down to get some sleep. He neither threatened anyone, nor in any other manner conducted himself so as to justify his arrest. The reason he urinated in his pants during questioning by the officer was that he had been sleeping and the resultant physical need to relieve himself (of which we are asked to take judicial notice) plus his fear of the police officer caused him to lose control of his bodily functions.

Opinion

The ultimate question presented is whether, on the facts of this case, a loaded revolver, seized during the search at the jail prior to the confinement of defendant pending trial for disorderly conduct, was constitutionally admissible as evidence against him at a trial for unlawful use of weapons. We hold that it was, and defendant’s motion to suppress (made prior to trial) was properly denied.

Our first concern is whether the arrest was valid. The fact that defendant was not convicted of disorderly conduct is not determinative of this question, since it is elementary that the quantum of proof necessary to establish reasonable cause for an arrest is much less than the proof beyond a reasonable doubt required to sustain a conviction for the same charge. Locke v. United States, 7 Cranch 339, 348, 3 L Ed 364; Brinegar v. United States, 338 US 160, 174-176; People v. Davis, 34 Ill2d 38, 40, 213 NE2d 531; People v. Garrett, 49 Ill App2d 296, 299, 200 NE2d 7.

The Village of Evergreen Park had an ordinance providing that the offense of disorderly conduct consists of creating “any improper . . . diversion, tending to a breach of the peace.” (Section 21.20.) The village also had a vagrancy ordinance. (Section 21.22.) Under section 107-2 (c) of the Criminal Code of Illinois: “A peace officer may arrest a person when ... [h]e has reasonable grounds to believe that the person is cornmitting or has committed an offense.” (Ill Rev Stats 1963, c 38, § 107-2 (c).) In our opinion, the officer had reasonable cause to arrest defendant under the circumstances of this case. Defendant’s explanation of his reasons for urinating in his pants and evidence that he was merely awaiting completion of repairs on his automobile were not brought to the attention of the police until subsequent to the arrest. Even had these factors been known by Officer Nolan, however, we could not say that he had acted unreasonably in arresting a man who had been lying down sleeping in public, then mumbling incoherently, attracting a crowd, many of whom were young children, and who, when confronted by the officer in response to a complaint by one of the residents of the area, offered no explanation for his actions or his presence, acted in an odd and highly excited fashion, and urinated in his pants. We repeat that whether, on the basis of later-developed evidence, defendant should have been found guilty of the offense, or should have been discharged, as he was, has no bearing on whether the officer was legally authorized to arrest him and take him to the station for further investigation. While courts must remain mindful at all times of the rights of accused persons, we must also construe and apply section 107-2 (c) so as to give effect to practical considerations; our decision should rest in each case upon the particular set of circumstances presented. (People v. Accardi, 58 Ill App 2d 364, 367-368, 208 NE2d 43, and cases cited therein.) In this case, we find that the arrest was based upon reasonable grounds and was therefore valid.

The next consideration is whether, at the trial on the weapons charge, the revolver was admissible as the product of a search incident to a valid arrest for a different offense. This general proposition has been well established in this state (People v. Jones, 16 Ill2d 569, 158 NE2d 773), but we have not been referred to any Illinois authority for the precise question presented here.

The court in United States ex rel. Boucher v. Reincke, 341 F2d 977, 980 (2d Cir, 1965), holding first that the police were justified in arresting and searching defendant for complicity in stealing a briefcase, then considered the question of permissible use of a gun found in the briefcase as evidence against the defendant on the charge of carrying a dangerous weapon:

A search of Boucher’s person for evidence relating to the offense or discovery of possible means of resistance or escape was a proper incident to an arrest. Ker v. California, 374 US 23, 35, . . . (1963); Brinegar v. United States, 338 US 160, 175-178, . . . (1949). The search was not invalidated because it revealed an additional and different offense, i. e. the carrying of a dangerous weapon — an act proscribed by Connecticut law. Abel v. United States, 362 US 217, 238, . . . (1960); Harris v. United States, 331 US 145, 154, . . . (1947); (and other cases).

Additional support for the validity of the search in the instant case is found in the statutory duties imposed upon arresting authorities for the protection of themselves and other prisoners prior to confinement of accused persons pending trial. Ill Rev Stats 1963, c 75, §§ 18, 22. These duties cannot effectively be discharged without a search of the accused. As the court held in Charles v. United States, 278 F2d 386, 388 (9th Cir, 1960), cert den 364 US 831:

. . . Power over the body of the accused is the essence of his arrest; the two cannot be separated. To say that the police may curtail the liberty of the accused but refrain from impinging upon the sanctity of his pockets except for enumerated reasons is to ignore the custodial duties which devolve upon arresting authorities . . . .

In conclusion, we hold that the arrest of defendant without a warrant was lawful and that the search which uncovered a loaded revolver was likewise valid. The revolver was thus properly admitted in evidence against defendant on the concealed weapons charge.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats 1963, c 38, § 24-1. Unlawful Use of Weapons,
      (a) A person commits the offense of unlawful use of weapons when he knowingly:
      (4) Carries concealed ... on or about his person . . . any pistol, revolver, or other firearm;

       A. Amendment IV of the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... (Emphasis supplied.)
      B. Identical provision is found in Art II, § 6 of the Illinois Constitution.

       Defendant has cited People v. Henneman, 373 Ill 603, 606, 27 NE2d 448; People v. McGurn, 341 Ill 632, 637, 638, 642, 173 NE 754, and People v. Roebuck, 25 Ill2d 108, Ill, 183 NE2d 166, all of which are cases involving illegal arrest and therefore become distinguishable upon our finding of a valid arrest in the instant case.

       See also footnote 2, page 389; and an extensive discussion of this question in Taglavore v. United States, 291 F2d 262, 265 (9th Cir, 1961); also United States v. Caruso, 358 F2d 184, 185 (2d Cir, 1966) and United States v. Russian, 192 F Supp 183, 185-186 (Conn, 1961).


text:
    People of the State of Illinois, Defendant in Error, v. Cleotha Carter, Plaintiff in Error.
    Gen. No. 51,196.
    First District, Fourth Division.
    May 26, 1967.

      Arwin M. Zoller and Stephen Levy, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Richard Rinella and Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE ENGLISH

delivered the

opinion of the court.

Offense Charged Rape.

Defense at Trial

The act committed was neither forcible nor against the will of the prosecutrix.

Judgment

After a bench trial, the court found defendant guilty and imposed a sentence of twelve years.

Points Raised on Appeal

(1) The evidence was insufficient, since there was no corroboration of the material elements of force and lack of consent.

(2) The requisite mental capacity and intent were not established.

Evidence

Testimony of State Witnesses

Prosecutrix, Mrs. Bernetta Mann

At about noon on July 30, 1961, she was in the bedroom of her apartment with Charles Smith when she heard a loud bang on the front door. She jumped from bed, put on a skirt and ran into the front room where she saw defendant with a broken beer bottle in his hand. He said he was looking for Melvin Harris, whom he intended to kill. Mrs. Mann picked up the telephone to call her mother, but put it down on defendant’s order and threat that he would stab her with the beer bottle which he held close to her face. She ran into the bedroom just in time to see Smith going out the window, while shouting to her to hold the bedroom door, as he was going for help.

Defendant broke the door from its hinges and entered the bedroom. After setting the broken bottle down beside the bed and striking Mrs. Mann on the arm and breast, he ordered her to lie down, which she did. He then pulled up her skirt, removed her pajama bottoms, got on top of her, and had intercourse. Near the end of the half-hour period defendant was in the bedroom, someone knocked on the door. Defendant covered her mouth with his hand and told her he would kill her if she screamed. After another knock he said he would choke her if she “hollered.”

Mrs. Mann’s brother, Wilbert Gregory, entered the room through the window while defendant was on top of her. Gregory pulled defendant off her, grabbing him around the neck and putting a knife to his throat. Defendant asked what was wrong. Smith and defendant’s brother, Clifford Carter, were outside the window. Clifford told Gregory to call the police. Gregory and Smith left the apartment and returned in about five minutes with a policeman. Mrs. Mann signed a complaint and was taken to Provident Hospital for examination. She then went to the police station where she repeated her story in the presence of defendant who just sat there crying. She had known defendant for six years, but had never had intercourse with him before.

Charles Smith

He had spent the night with Mrs. Mann and in the late morning heard a knock at the door of the apartment and heard someone calling for “Melvin.” Looking through a crack in the bedroom door, he saw defendant with a broken bottle in his hand. He told Mrs. Mann to hold the door; then he jumped out the window to get her brother. He returned after twenty minutes with her brother, Gregory, and defendant’s brother. They hoisted Smith up to the bedroom window and when he looked in he saw defendant on top of Mrs. Mann having intercourse with her and covering her mouth with his hand. He was let back down to the ground and he and defendant’s brother helped Gregory up and into the bedroom. They went around to the front and were let into the apartment by Gregory. Smith noticed that the bedroom door was broken.

Wilbert Gregory and Clifford Carter

They corroborated the testimony set forth above, commencing with Smith’s return to the scene of the crime. Gregory added that when he pulled defendant off his sister she was crying.

Donald Benoit, the arresting police officer

He took defendant to the police station where defendant said nothing when subsequently confronted by Mrs. Mann. The bedroom door frame at the apartment was cracked on both sides and there was a hole in the upper left panel.

In rebuttal, Officer Benoit testified that Mrs. Mann’s upper left arm was slightly discolored.

The State introduced into evidence, without objection, a broken beer bottle taken from Mrs. Mann’s apartment. For the purpose of impeaching the credibility of defendant as a witness (his testimony is set forth below), the State also introduced evidence of a prior conviction and sentence for statutory rape.

Testimony of Defense Witnesses

Defendant, Cleotha Carter

He entered Mrs. Mann’s apartment on July 30 looking for Melvin. He had intercourse with Mrs. Mann but did not rape her. He did not have a broken beer bottle and did not break down the bedroom door; he just “leaned” on it and the plywood fell out. When asked by Mrs. Mann at the police station why he had done such a thing, he replied that he did not know.

Prior to the commencement of this trial, the defense informed the court of defendant’s previous commitment, on July 28, 1953, to the Dixon State Hospital, a mental institution, and petitioned for a sanity hearing. A jury was impaneled and testimony heard, at the conclusion of which a verdict was returned finding defendant to be sane.

Opinion

(1) Both parties have discussed People v. Faulisi, 25 Ill2d 457, 185 NE2d 211; People v. Jeanor, 23 Ill2d 347, 178 NE2d 384; People v. Fryman, 4 Ill2d 224, 122 NE2d 573; and People v. Qualls, 21 Ill2d 252, 171 NE2d 612, in arguing defendant’s first position: that the evidence was insufficient to establish the necessary elements of force and lack of consent. We have reviewed those authorities and in applying them find that the proof here was sufficient to sustain conviction.

None of the factual situations in those cases is as strong as the evidence in the instant case. The trial court believed Mrs. Mann’s testimony (substantially corroborated by the other witnesses) that defendant had broken into the bedroom carrying a broken beer bottle, had threatened her, and attempted to stifle any outcry she might have made. Her body also bore marks of violence. That he had intercourse with her is not contested.

In People v. Harrison, 25 Ill2d 407, 185 NE2d 244, the court answered a defense contention that the evidence failed to show that the prosecutrix made “such resistance as demonstrated the act was against her will,” by stating at page 413:

... it is necessary only to refer to the fact that the defendant had held a knife to the neck of the prosecutrix at the outset, and as he left had “flashed the knife” and threatened to kill her if she told anyone. (See also People v. Brown, 29 Ill2d 375, 378, 194 NE2d 326.)

The defendant’s use of the broken beer bottle brings the instant case within the Harrison ruling. The fact that Mrs. Mann made no outcry does not compel a reversal of the finding below. The law does not require outcry where it would be a useless gesture or where the victim is restrained by fear of violence. People v. Williams, 23 Ill2d 295, 299, 178 NE2d 372; People v. Elder, 25 Ill2d 612, 186 NE2d 27.

(2) Defendant also argues that the State failed to prove intent on the part of defendant; that defendant could not have had such an intent because of insanity; that there being evidence of such insanity, the State had the burden of proving defendant sane; and that the State failed to meet this burden. The evidence on which defendant relies as tending to show insanity consists of two fragments of testimony of the victim’s brother. He testified that “When once he [defendant’s brother] got his hands on him [defendant], he could take care of him”; and the same witness gave an affirmative response to a question by the State’s Attorney as to whether “there [is] something wrong with him [defendant].”

While it may be conceded, on the authority of People v. Lowhone, 292 Ill 32, 126 NE 620, that opinion testimony of experts is not necessary on the issue of insanity, and while we are aware that there is no burden upon a defendant to prove insanity (People v. Krauser, 315 Ill 485, 146 NE 593), but only to introduce evidence tending to establish such an affirmative defense (People v. Patlak, 363 Ill 40, 44-45, 1 NE2d 228), nevertheless, we do not believe that the ambiguous and insubstantial evidence referred to here is sufficient to meet even this minimal requirement. People v. Haupris, 396 Ill 208, 210-211, 71 NE2d 68; People v. Bray, 52 Ill App2d 384, 389, 202 NE2d 152. It leaves intact the basic presumption that all men are sane and responsible for their actions. People v. Geary, 297 Ill 608, 131 NE 97. The instant case is easily distinguishable on the facts from the cases cited by defendant. People v. Nierstheimer, 401 Ill 260, 81 NE2d 900; Durham v. United States, 214 F2d 862 (DC Cir, 1954); Costas v. People, 9 Ill2d 534, 138 NE2d 468.

In any event, no question of defendant’s mental capacity at the time of the commission of the crime was raised at the trial and it is clearly the law that the defense of insanity at the time the crime was committed is an affirmative one and unless raised is waived. People v. Milligan, 28 Ill2d 203, 205, 190 NE2d 753; People v. Bray, 52 Ill App2d 384, 388, 202 NE2d 152; People v. Jones, 75 Ill App2d 332, 341, 221 NE2d 29.

The judgment of the trial court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats 1959, c 38, § 490.

       The appeal was filed in the Supreme Court and transferred here.

       No details as to reasons for commitment or release were then brought to the attention of the court and none have been presented on this appeal.

       The distinction between insanity at the time of the trial (which, after the jury’s verdict, is no longer in issue here) and at the time of the crime, was discussed and the reasons for the waiver rule were explained in Glenn v. People, 9 Ill2d 335, 341-342, 137 NE2d 336:
      Under the statute (Ill Rev Stats 1955, chap 38, par 592,) when a preliminary hearing is ordered to determine a defendant’s saniity, the inquiry is confined to a determination of his sanity at the time of the trial for the purpose of determining whether he is capable of understanding the nature and object of the proceeding against him, of comprehending his own condition in reference to such proceeding, and of conducting his defense in a rational, reasonable manner. (Cf. People v. Geary, 298 Ill 236.) His mental condition at the time of the commission of the crime is foreign to the inquiry and becomes pertinent only when the accused is placed on trial for the alleged crime. (People v. Lewis, 2 Ill2d 328; People v. Gavrilovich, 265 Ill 11.) The defense of insanity at the time of the commission of the crime may be urged on the hearing of the cause, notwithstanding a finding of a jury that defendant was sane at the time the jury was empaneled. (People v. Shaffer, 400 Ill 332; People v. Reck, 392 Ill 311.) The defense of insanity at the time of the commission of the crime is an affirmative defense which it is incumbent on the defendant to raise during the trial. People v. Wagner, 390 Ill 384.) His failure to do so waives that defense. (Brown v. People, 8 Ill2d 540.) This is especially true where a defendant has submitted the issue of his sanity to a jury and a jury has found him sane at the time of the hearing. In People v. Shaffer, 400 Ill 332, at page 335, this court stated: “The difficulty with the position of defendant on this point is that he had already submitted to a jury the question of his sanity, and the jury had found the defendant sane at the time of the hearing. To all intents and purposes at the time of the trial, the defendant was sane and was not precluded from raising the question of his sanity at the time of the commission of the crime as a defense to the charge.”


text:
    People of the State of Illinois, Appellant, v. In the Matter of a Search Warrant Upon the Person of William L. Johnson and Premises Located at 9207 So. Harvard Avenue, Two Story “One Family” Brown Brick Unit, Chicago, Illinois, Appellee.
    Gen. No. 51,295.
    First District, Fourth Division.
    May 26, 1967.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon Schapiro, Assistant State’s Attorneys, of counsel), for appellant.
    No appearance made for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

The trial court granted defendant’s motion to quash a search warrant, apparently on the ground that the affidavit therefor was insufficient. The State appeals, contending that the affidavit in support of the warrant contained facts sufficient to establish its veracity and reliability, and that there was probable cause to believe an offense had been or was being committed.

The affidavit was in the form of a complaint by Police Detective Sherwood Williams requesting a warrant to search the person of William Johnson and the premises at 9207 S. Harvard Avenue, Chicago, and to seize certain specified instruments, articles and things such as policy result tickets, policy bets and other policy records which had been used in the commission of or which constituted evidence of the offense of “Lottery Policy” gambling. Complainant stated that his belief that the articles to be seized were on the person and premises designated was based upon the following:

On the 27th of December 1964, I had a conversation with a reliable informant, who has given me information in the past concerning Lottery Policy and I found this information true in every case, and this reliable informant told me that Charles Hoosier, William L. Johnson and Charles Belcher were involved in the operation of the Fire Chief-Holiday-Hoss Policy Wheel, and that they met daily between 2 p. m. to 2:30 p. m. and 10 p. m. to 11:30 p. m. at the home of Charles Belcher located at 9207 S. Harvard Avenue, Chicago, Illinois, where they “turned in” the bets that they picked up from their policy routes on the south side of the city of Chicago, Illinois, and waited for Hoosier to bring the Policy result tickets.
From the 28th of December 1964 to the 13th of January 1965, I and other officers of my unit have maintained a constant surveillance of persons connected with this Policy Wheel daily, except Sundays, and followed them as they worked their policy routes, picking up bets and delivering policy result tickets.
On the 12th and 13th of January 1965, I followed William Johnson as he worked his route and at 10801 S. Bishop, 1st floor, and 11342 S. Ada St., first floor, I saw Johnson enter these locations, and when he emerged from them, he was sorting policy writings. At 11:45 on 13 January 1965, I saw William L. Johnson place a small package in the doorway of the building at 10801 S. Bishop, and leave this location. When I checked the package, I found them to be a quantity of Policy Result Tickets for the Fire Chief-Holiday-Hoss Policy Wheel. I recovered one of these result tickets for evidence.
On the 12th and 13th of January 1965 when I had William L. Johnson under constant surveillance while he was working his route, I followed him to 9207 S. Harvard St., Chicago, Illinois on both dates. At this location Johnson would take the Policy bets accumulated over his route and carry them into this location.

A search warrant was issued by a Magistrate on January 14,1965, on the basis of this affidavit.

At the hearing on defendant’s motion to quash the warrant, he argued that the affidavit was lacking in facts to show the reliability of the informant and how he had obtained his information. In granting defendant’s motion, the court relied on Aguilar v. Texas, 378 US 108, which we believe was incorrectly applied to this case, since in Aguilar the complaint contained no affirmative allegation that the affiant spoke with any personal knowledge, did not indicate any reasonable corroborative source for the complainant’s belief in the information he had received, and did not therefore furnish adequate support for a conclusion as to the informant’s reliability.

In reviewing and approving the issuance of a search warrant in People v. Hall, 56 Ill App2d 7, 204 NE2d 824, this court interpreted and distinguished Aguilar at pages 10-11:

Here the officer stated the circumstances from which he concluded that his informant was “credible” or his information “reliable.” In Aguilar, the warrant issued on the magistrate’s acceptance of the informant’s “suspicion, belief, or mere conclusion” without more. Here the chain of events suggesting the probable cause is set forth for the magistrate’s judicial determination. In Aguilar, there were none — what Aguilar lacked is present here. It seems clear to us that the circumstances related in the affidavit would warrant a man of reasonable caution in believing that an offense had been committed and the defendant was directly connected with it.

In the instant case, the warrant was based upon hearsay obtained from an informant alleged to be reliable on the basis of previous experiences; upon corroborative personal observation of defendant and the premises to be searched by the complaining officer; and also upon the officer’s discovery of tangible evidence in the form of policy slips. Similar circumstances were presented to the court in United States v. Ventresca, 380 US 102, 108, where the warrant was upheld and the Court of Appeals for the First Circuit was reversed:

Thus hearsay may be the basis for issuance of the warrant “so long as there [is] a substantial basis for crediting the hearsay.” Jones v. United States [362 US 257, 272], And, in Aguilar we recognized that “an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,” so long as the magistrate is “informed of some of the underlying circumstances” supporting the affiant’s conclusions and his belief that any informant involved “whose identity need not be disclosed . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, supra, at 114.

And further at page 109:

Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, at 270.

See also McCray v. Illinois, 87 S Ct 1056.

Thus, the guiding principle in determining probable cause is common sense. With that in mind, it might almost be said of the instant case that even had the informant’s reliability not been attested to by past performance within the officer’s knowledge, the detailed recitation of the police surveillance and the finding of policy slips would in themselves have justified a reasonable belief in probable cause for the issuance of a warrant to search. People v. McCray, 33 Ill2d 66, 70-71, 210 NE2d 161, and cases cited therein.

The defendant did not sufficiently discharge his burden of proof on the motion to quash the search warrant. Ill Rev Stats 1963, c 38, § 114-12. The judgment of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and McCORMICK, JJ., concur.


author: MR. JUSTICE DRUCKER McCORMICK, J.,

text:
    Caldwell Advertising, Inc., Plaintiff-Appellant, v. Hilda C. Maloney, et al., Defendants-Appellees.
    Gen. No. 51,500.
    First District, Fourth Division.
    May 26, 1967.
    McCORMICK, J., dissenting.
    Reversed and remanded with directions.
    Summerfield and Summerfield, of Chicago (John A. Summerfield and Harold L. Summerfield, of counsel), for appellant.
    Paul M. Smith, Jr., of Chicago (Anthony M. Anzalone, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from an order denying its petition that defendant, Hilda Maloney, be committed to the custody of the Sheriff.

On August 13, 1962, plaintiff obtained a judgment for $13,233.59 against defendant, Hilda Maloney, (a former employee of plaintiff) for breach of her fiduciary duty (wilful misappropriation of plaintiff’s money) with a special finding that malice was the gist of the action. On June 24, 1964, a body execution was issued against the defendant. She surrendered into custody and was immediately brought to court for a hearing as to whether the body execution should have been issued.

The hearing was continued on various occasions (defendant being free on her personal bond) until March 15, 1966, at which time plaintiff filed its petition to commit the defendant to custody. The matter was continued until April 19. On April 12 defendant filed a motion to strike the plaintiff’s petition on the ground that “defendant is making satisfactory restitution and has been punished.” On April 19 plaintiff’s motion was denied, from which plaintiff appeals.

Defendant contends that the trial court has the discretionary power to discharge a body execution; and that since defendant was satisfying the judgment on installment payments the trial judge properly exercised his discretion in denying the plaintiff’s motion. Defendant does not contend that the body execution was improperly issued nor that the judgment and interest had been fully paid.

The circumstances under which a body execution may be issued against a defendant are set forth in Illinois Revised Statutes, 1963, chapter 77, section 5:

No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.

The procedure subsequent to the arrest of a debtor by virtue of a body execution is set forth in Illinois Revised Statutes, 1963, chapter 77, section 68:

When a debtor is arrested by virtue of an execution against his body, he shall be immediately taken before the court out of which the execution issued. The court shall proceed in a summary manner to hear the evidence, if any, as to whether the execution against the body should have been issued. If upon such hearing the court finds that the body execution was not properly issued under the provisions of this Act it shall order that the body execution be quashed and that the judgment debtor be discharged from custody; but such discharge shall not affect the right of the judgment creditor to collect the judgment otherwise than by execution against the body of the judgment debtor. If, in a case where the body execution was issued under the provisions of Section 62, the court finds that the allegations of the affidavit required by that Section have been proved or if, in a ease where the judgment was obtained for a tort and there was a special finding that malice was the gist of such action as required by Section 5 of this Act, the court finds that the body execution was properly issued in such case, it shall order that the judgment debtor be conveyed to the county jail and kept in safe custody until he shall satisfy the judgment or be discharged according to law. The court may continue such hearing from time to time and in such case it shall either remand the judgment debtor into the custody of the sheriff or other officer of the court or allow him to give bond for his appearance from time to time until the proceedings are concluded, such bond to be in such sum and with such security as the court directs. (Emphasis supplied.)

Under section 68, as aforequoted, the court shall hold a hearing to ascertain whether the body execution was properly issued and that hearing may be continued from time to time. There is no provision in the statute granting a trial judge the power or discretion to discharge a debtor from the body execution where the execution was properly issued. In the instant case it is undisputed that the judgment has not been satisfied. Furthermore, defendant has never contended in the court below or on appeal that the body execution was improperly issued. In her brief filed in this court defendant states: “The matter of the Court making a finding as to whether or not the Writ should have been issued was not before the Court it appearing from the record herein on file that the writ was properly issued.” We therefore find that the trial judge erroneously denied the plaintiff’s petition.

Plaintiff also appeals from the denial of that portion of its motion (filed November 30, 1965) in which it requested the court to apportion the payments made by the defendant between interest and principal. Upon an examination of the record on appeal we find that no ruling was ever made on that portion of plaintiff’s motion, and therefore the issue is not before us.

The order of the trial court denying plaintiff’s petition that defendant be committed to custody is reversed and the cause remanded with directions that the trial court enter an order granting the relief requested in plaintiff’s petition of March 15,1966.

Reversed and remanded with directions.

ENGLISH, P. J„ concurs.

McCORMICK, J.,

dissenting:

The writer of this opinion is constrained to dissent from the conclusions reached by the majority.

It is true, as stated in the majority opinion, that the defendant admits in the brief filed in this court that the writ of capias ad satisfaciendum had been properly issued. Nevertheless, an admission of that character does not prevent this court from making a determination as to whether all of the statutory requirements were complied with. This matter is particularly interesting to the writer because it is an anomaly existing in our laws in this enlightened age.

Up to the time when the legislature repealed the act providing for capias ad respondendum, it was possible to have the defendant in a civil case arrested and compelled to give bail. In case of failure to give bail he was committed to a debtor’s prison. In 1838, England, apparently taking a more enlightened view than our State, abolished arrest on mesne process. Shatz v. Paul, 7 Ill App2d 223, 129 NE2d 348 (decided in 1955). Parnass, “Imprisonment for Civil Obligations in Illinois,” 15 Ill L Rev 559, 571 (1920-21), says:

“Thus almost two centuries after English debtors, seeking relief from the harsh laws of England, founded an American colony, the institution of the debtor’s prison still prevails in Illinois and in other states of the Union, though many have abolished it altogether. It is true, of course, that in this state, continued incarceration is possible only where the defendant is guilty of a malicious tort or dishonestly refuses to surrender his property for the satisfaction of a judgment against him, or is guilty of other fraud. It is nevertheless to be noted that execution against the body even in such cases presents the anomaly of imposing a criminal consequence upon a civil judgment, a judgment which may have been entered by default, a judgment based on a verdict and on a trial of the issues wherein the charges need be proved merely by a preponderance of the evidence, and not, as in other cases where criminal consequences follow, beyond all reasonable doubt.”

We are aware that the Supreme Court of this State, in a series of opinions commencing with 1853, People ex rel. Brennan v. Cotton, 14 Ill 414, has held that the constitutional provision abolishing imprisonment for debt is applicable only to actions upon contracts. A number of these cases were cited in In re Petition of Blacklidge, 359 Ill 482, 195 NE 3. It seems high time to the writer of this dissent that section 12 of article 2 of the Illinois State Constitution of 1870 should be revised.

In People v. LaMothe, 331 Ill 351, 163 NE 6, an opinion handed down in 1928, dealing with the power of a court of equity to punish for contempt by imprisonment upon the refusal of a trustee to pay over money actually received and wrongfully withheld, the court in an enlightened opinion said:

“No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it. Courts may imprison for willful defiance, but they will not imprison for a failure to comply with a decree where the disobedience is not willful .... No man can be legally imprisoned for a failure to pay over money he does not have and never had.”

In Peiffer v. French, 376 Ill 376, 33 NE2d 591 (opinion decided in 1941), the court said:

“Laws in derogation of the liberty of a citizen must be strictly construed, and to justify any imprisonment for tort, which is contrary to the general tendency of our times, statutory requirements must be meticulously observed.”

The law in effect prior to the amendment of section 5 of chapter 77 provided:

“Cahill, Ill Rev Stats 1933, c 77, § 4. Execution. The person in whose favor any judgment, as aforesaid, may be obtained, may have execution thereon in the usual form, directed to the proper officer of any county, in this State, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law.
“Ill Rev Stats 1933, c 77, § 5. Execution against body, when. No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum [respondendum] as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.
“[In lieu of RS 1845, p 301, § 6. See Const 1870, art II § 12: ‘Bail in Civil Cases,’ ch 16. Capias ad satisfaciendum in above section means capias ad respondendum. People v. Hoffman, 97 Ill 234. Cases in point, see Callaghan’s Ill Dig, Executions, §§ 89-125.]”

Section 5 of chapter 77 was amended in 1935, and now provides that:

“No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” [Note that it requires that there be a finding that malice is the gist of the action, “and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” (Emphasis supplied.)]

Under the former section 5, execution against the body of the defendant could be obtained when a tort judgment had been entered against him. Ingalls v. Raklios, 373 Ill 404, 26 NE2d 468, discussed section 5 as amended, and held that there had to be a special finding that malice was the gist of the action before a body execution could be issued, and it was so held in Greener v. Brown, 323 Ill 221, 153 NE 825 (decided 1926 before the 1935 amendment was passed). In the latter case the court held that in a tort action where the trial court had found that malice was the gist of the action, it was not necessary, before the issuance of the capias, that demand should have been made or execution served upon the defendant requiring him to turn over his estate. The court did not cite or quote from the statute.

In re Petition of Blacklidge, 359 Ill 482, 195 NE 3 (opinion filed 2/15/35, case decided under the law prior to amendment of section 5), was a tort action in which the jury found the defendant guilty, and at page 485, the court said:

“It will thus be noted that the statute provides that the plaintiff may have execution against the body of the defendant when the same is authorized by law, and specifically excepts from the prohibition against such executions any judgments obtained for a tort committed by the defendant; in such cases an execution against the body is deemed authorized by law. (People v. Walker, 286 Ill 541.) It is further provided by section 2 of the Insolvent Debtors act (Cahill’s Stat 1933, p 1574; Smith’s Stat 1933, pp 1598, 1599;) that any person arrested, or imprisoned upon any process issued for the purpose of holding him to bail upon any indebtedness or in any civil action of which malice is not the gist may be released from such imprisonment by complying with the provisions of that statute.”

The court held that in order for the petitioner to bring herself under the provisions of the Insolvent Debtors Act, which she attempted to do in the petition, it was necessary for her to prove that malice was not the gist of the action. The court held that the petitioner had failed to make such proof. The court cited People v. Walker, 286 Ill 541, 122 NE 92, in which case the former statute was cited, and it was pointed out that “no execution shall issue against the body except when the judgment shall have been obtained for a tort committed by the defendant, or unless the defendant shall have been held to bail or shall refuse to deliver up his estate for the benefit of his creditors.”

In Marshall Field & Co. v. Freed, 269 Ill 558, 109 NE 1018 (opinion handed down in 1915), the court held that where the judgment was for a tort committed by the defendant it was never contemplated nor required that the plaintiff should make an affidavit that the debtor had property which he unjustly refused to surrender, or that he fraudulently conveyed, concealed or otherwise disposed of property with a design to secure the same to his own use or to defraud his creditors. The court further held that under section 5 of the former Act, if the judgment was for a tort committed by the defendant, an execution against the body was authorized without regard to whether the defendant had or had not property and without regard to whether he had refused to deliver up his estate for the benefit of his creditors, and the court so construed the statute. The court further pointed out that the precise question had not been previously decided by the court.

Under the 1935 amendment to section 5, the legislature provides: “and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” In order to reach the conclusion that an execution may issue without a demand on the defendant to turn over his estate, we must consider that the legislature did not know anything about the former law or that the use of “and” instead of “or” was inadvertent. In any case, under the rule that a strict construction must be given to statutes which can deprive a person of his liberty, meaning must be given to the legislature’s use of the word “and.”

We are familiar with the fact that in Addante v. Pompilio, 317 Ill App 150, 45 NE2d 521 (abst.), in In re Petition of White, 302 Ill App 69, 23 NE2d 401 (abst.), in Pappas v. Reabus, 299 Ill App 499, 20 NE2d 327 and in Brandtjen & Kluge, Inc. v. Forgue, 299 Ill App 585, 20 NE2d 616, it is held that under the amendment the statute does not require a demand or showing that the delivery of the goods has been requested. These cases were decided shortly after the amendment to section 5 was passed by the legislature. It is. the opinion of the writer that they should no longer be followed and that section 5 as amended should be interpreted to require, even in tort cases where there is a specific finding that malice was the gist of the action, that there must be a showing that the defendant has refused to deliver up his estate for the benefit of his creditors. In this day and age, to hold otherwise should shock the judicial conscience.

In the petition which the plaintiff filed in the instant case, asking that the court direct a body execution to issue, no such showing was made. In denying the petition, the court ruled properly, and the case should be affirmed.

       A judgment in the same amount was also entered against James F. Maloney, but there was no finding as to him that malice was the gist of the action. Therefore, throughout this opinion “defendant” will refer only to Hilda Maloney.

       Since its amendment in 1935, this section has been construed in Brandtjen & Kluge, Inc. v. Forgue, 299 Ill App 585, 20 NE2d 616. The court stated at page 590:
      Defendants say that an affidavit and demand upon the defendants to deliver up their estate for the benefit of the creditor are necessary before a capias will issue. This is not necessary where the judgment is in tort based on malice. (Citing cases.)
      To the same effect are: Addante v. Pompilio, 317 Ill App 150, 45 NE2d 521; In re Petition of White, 302 Ill App 69, 23 NE2d 401; Pappas v. Reabus, 299 Ill App 499, 20 NE2d 327. The court in Pappas v. Reabus, supra, stated at page 503 that:
      Whether the legislature should have gone farther and abolished body executions in all tort actions, (referring to the 1935 legislative amendment to section 5) and whether the present statute is “out of tune with the American spirit and has no place in American jurisprudence,” . . . obviously is in the province of the legislature and not of the courts.

       The purpose of the hearing (first required in 1955) is to provide a ready means to a debtor to be released from jail if the body execution was improperly issued. Prior to 1955 the statute did not require such a hearing and merely provided that: “When a debtor shall be arrested by virtue of an execution against his body, he shall be conveyed to the county jail . . . and kept in safe custody until he shall satisfy the execution or be discharged according to law [the maximum imprisonment was 6 months].” Ill Rev Stats 1953, c 77, § 68.


author: MR. JUSTICE DRUCKER

text:
    Mrs. William McCormick Blair, et al., The North State, Astor, Lake Shore Drive Association, and The Greater North Michigan Avenue Association, Plaintiffs-Appellants, v. Zoning Board of Appeals, City of Chicago, B. Emmet Harnett, et al., The Near North Management Company, Guaranty Bank and Trust Company, Trustees Under Trust No. 233, Collin M. Doyle, et al., and the City of Chicago, DefendantsAppellees.
    Gen. No. 51,644.
    First District, Fourth Division.
    May 26, 1967.
    William J. Hurley, of Chicago, for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for Zoning Board of Appeals, City of Chicago, B. Emmet Harnett, Earl J. McMahon, Hubert F. Messe, Carl M. Vitzthum, John P. Kringas, Sidney D. Smith and City of Chicago, certain appellees.
    Gerald Scott Moro and Maurice J. Nathanson, of Chicago (Harry G. Fins, of counsel), for The Near North Management Company, Guaranty Bank and Trust Company, Trustee, and Collin M. Doyle, appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal under the Administrative Review Act of Illinois from a judgment of the Circuit Court of Cook County which affirmed the decision of the Zoning Board of Appeals for the City of Chicago. Appellants contend that the Zoning Board failed to make sufficient findings of fact to support its decision and, notwithstanding, the decision of the Zoning Board is against the manifest weight of the evidence. Appellants further contend that the Circuit Court erroneously denied their motion to make findings of fact in its decision.

On May 11, 1965, the Near North Management Company, for the Guaranty Bank and Trust Company as Trustee under Trust No. 233, filed an application for a variation in the zoning ordinance. The Zoning Board granted the variation and made the following “findings”:

1. That in this case, the proposed use is to be located in an R7 General Residence District.
2. That there is unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance.
3. That the property in question cannot yield a reasonable return, nor can it be put to reasonable use, if permitted to be used only under the conditions allowed by the regulations in that zone.
4. That the plight of the owner is due to unique circumstances.
5. That the variation, if granted, will not alter the essential character of the locality.

Based upon those findings the Zoning Board concluded:

. . . the Board of Appeals having fully heard the testimony and arguments of the parties and being fully advised in the premises, finds that in this case the proposed use is to be located in an R7 General Residence District; that there is unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance; that the property in question cannot yield a reasonable return nor can it be put to a reasonable use if permitted to be used only under the conditions allowed by the regulations in that zone; that the plight of the owner is due to unique circumstances; that a variation, if granted, will not alter the essential character of the locality.

Plaintiffs then brought an action for review of that decision in the Circuit Court of Cook County in accordance with the Administrative Review Act of Illinois. The court affirmed the action of the Zoning Board. Plaintiffs filed a motion under the Administrative Review Act (Ill Rev Stats 1963, c 110, § 275 (3)) requesting the court to make findings of fact and to state the propositions of law upon which its judgment was based, which was denied.

Section 11-13-4 of the Illinois Municipal Code (Ill Rev Stats 1963, c 24, § 11-13-4) provides in relevant part that:

Variations shall be permitted by the board of appeals only when they are in harmony with the general purpose and intent of the regulations and only in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any of those regulations relating to the use, construction, or alteration of buildings or structures or the use of land. In its consideration of the standards of practical difficulties or particular hardship, the board of appeals shall require evidence that (1) the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in that zone; and (2) the plight of the owner is due to unique circumstances; and (3) the variation, if granted, will not alter the essential character of the locality. A variation shall be permitted only if the evidence, in the judgment of the board of appeals, sustains each of the 3 conditions enumerated.

Section 11-13-11 of the Illinois Municipal Code (Ill Rev Stats 1963, c 24, § 11-13-11) provides:

Every variation, whether made by the board of appeals directly, or by an ordinance after a hearing before the board of appeals, shall be accompanied by findings of facts specifying the reason or reasons for making the variation.

In Lindburg v. Zoning Board of Appeals, 8 Ill2d 254, 133 NE2d 266, the court held that the order of the Zoning Board of Appeals did not contain the findings required by statute. Those “findings,” substantially similar to the “findings” made in the instant case, are set forth in relevant part on page 256:

“It further appeared to the Board that there were at the present time other homes in the vicinity in which there were apartments for more than one family.
“That there are practical difficulties and hardships in the way of carrying out to the strict letter the restrictions in the code pertaining to the ‘A’ residential use of the above described property, insofar as the use of the building or structure now located thereon.
“That the proposed variation in use of said property would not impose any undue hardship or burden on the neighborhood or adjoining property.”

In its conclusion the court stated at page 256 that:

The requirement of the statute is not met by parroting the highly generalized statutory phrases, “practical difficulties” and “particular hardship.”

We find that in the instant case the Zoning Board of Appeals did not make the required findings of fact since it merely parroted the highly generalized language of the statute. Since those findings were not made, a court of review is unable to ascertain upon what evidence, if any, the conclusion of the Board was based.

Therefore the judgment is reversed and the cause remanded to the Circuit Court with directions that it remand the cause to the Zoning Board of Appeals with directions to make specific findings of fact as required by the statute.

Reversed and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.


author: MR. JUSTICE ADESKO

text:
    Jack R. Rice, a Minor, by George Rice, His Father and Next Friend, Plaintiff-Appellee, v. Gulf, Mobile and Ohio Railroad Company, Defendant-Appellant.
    Gen. No. 50,681.
    First District, First Division.
    May 26, 1967.

      Winston, Strawn, Smith & Patterson, of Chicago (Gerard E. Grashorn and Edward J. Wendrow, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Jack R. Rice, a minor nine years of age, by George Rice, his father and next friend, filed suit in the Circuit Court of Cook County against the Gulf, Mobile and Ohio Railroad Company and an engineer of one of its work trains. Dewey 0. Bates, for damages for personal injuries. The action was submitted to the jury on charges of both negligence and wilful and wanton misconduct. The jury returned a verdict of not guilty as to the engineer. The railroad was found guilty and the damages were assessed at $115,000. The railroad’s post-trial motion for judgment notwithstanding the verdict or in the alternative, for a new trial limited to the issue of liability only, was denied. A judgment for $115,000 was entered on the jury’s verdict. Only the railroad prosecutes this appeal.

Defendant’s railroad tracks run, in general, in a North-South direction through the village of Nilwood, Illinois. Morean Street, also known as Old Route 4 is the main street in Nilwood and runs in an East-West direction. There are pedestrian concrete crosswalks on both the North and South sides of Morean Street, up to and across defendant’s tracks. The crosswalks were about 40 feet from either side of Morean Street. The railroad tracks consisted of a Northbound main and a Southbound main. To the West of the Southbound main, also running in a North-South direction, is a sidetrack, or a business track, which also crosses Morean Street and two dirt roads South of Morean, Chestnut and DuBois streets. This business track serves the Kime Elevator Company, which is located immediately West of the business track. The chute of the Kime Elevator Company stands about 180 feet to the South of the South crosswalk of Morean Street.

There is a switch at the South end of the business track permitting a train on the Southbound main to get on or off the business track. This switch is located 1182 feet South of the center line of Morean Street. The switch is equipped with a derail device which will derail any car that might otherwise roll from the business track and enter the Southbound main.

Sixteen railroad cars which had been delivered by defendant to Nilwood on April 18, 1957, were standing on the business track. There were four cars between the derail and the first crossing (DuBois Street); seven or eight cars between DuBois Street and the next crossing (Chestnut Street); and the remaining four or five cars between Chestnut and Morean streets. A work train, referred to as No. 1,127, consisting of a diesel engine, a gondola car, a clam shell or derrick-type car, another gondola and two cabooses, was located on the Southbound main track, South of the switch at the juncture of the business track and the Southbound main. This work train was engaged in picking up old rails and supplying new rails in the area.

A passenger train, travelling South was due to pass through Nilwood at approximately 3:19 p. m. Under the railroad regulations, the work train had to leave the main track ten minutes before the scheduled time of the passenger train. The train crew of the work train consisted of five men: defendant Dewey 0. Bates, the engineer; James F. Chestney, the fireman; Leroy Holmes, the conductor; Robert Bull, the head brakeman; and John J. Killoran, the rear brakeman. The crew started to move the work train off the Southbound main track and onto the business track at 2:50 or 3:00 p. m. The procedure was begun by Killoran, the rear brakeman, throwing the derail switch so that the work train could go onto the business track. The two side streets and Morean Street were all open at this time. Bull, the head brakeman, gave the first signal to back up the work train onto the business track and up to the first “cut” of cars. Bates, the engineer, was on the West side of the train. Because of the curvature in the track, he could not see any of the other members of the crew out his window in the engine. Killoran, Bull and Holmes, the conductor, were all on the East side of the train. Chestney, the fireman, was on the East side of the engine. He passed the signals on to Bates. The stop signal was given when the first “cut” of cars was reached. These cars were then coupled to the work train by Killoran. Killoran then walked to the next crossing and again gave the backup signal to Bull and Holmes, who relayed it to Chestney, who informed Bates and the work train backed up to the second “cut” of cars. A stop signal was relayed in the same manner as the backup signal. The second “cut” of cars was coupled to the work train. Killoran then walked to the next crossing, Chestnut Street. Again, a backup signal was relayed and when the work train reached the last “cut” of cars, a stop signal was given and the coupling made.

At this point the engine was still on the main line. Killoran walked down to Morean Street and again gave a backup signal. The purpose at this point was to “shove” some of the 16 railroad cars, which had been sitting on the business track, North of Morean Street, uncouple them, and then pull the train forward to leave the crossing clear for vehicular traffic. Once Killoran reached Morean Street the backup signal was relayed in the manner described. The train backed up 3 or 4 car lengths. Killoran cut off 3 cars North of Morean Street and then gave the signal to move forward. This signal was relayed in the aforedescribed manner. The train then pulled ahead as close as it could to the derail switch. Killoran still continued to give the go ahead signal because the South half of Morean Street and the South crosswalk were still blocked. Killoran and Holmes both admitted that they did not know the capacity of the business track and therefore did not know how many cars would have to be “shoved” North of Morean Street in order to leave the street clear for vehicular traffic. Killoran also admitted that he did not care about the crosswalk and left it blocked. He only wanted to clear the street.

Because Morean Street was blocked, it became necessary to back the train up again and drop 4 or 5 cars North of Morean Street. Bates gave 3 blasts on the train whistle and rang the bell, the signal that he wanted to back up. There is some conflict as to whether the train whistle was sounded or not. Holmes gave Killoran a signal that more cars would have to be “shoved” North of the crossing. Killoran gave the backup signal and this was relayed to Bates. The train began to move back North. The train moved about 10 or 12 feet when Bull shouted: “My God. Look at there.”

A “vicious stop” signal was given and the train came to an immediate halt. The plaintiff was just North of the grain elevator and came crawling out on the East side of the tracks from under the train. Bates, Bull, Holmes and Chestney all started running toward the boy. Donald Bacon, a farmer, who had stopped on the East side of the tracks during the movements of the work train, heard someone hollering for help and upon looking to the South, saw somebody laying beside the track.

A man from town, Mr. Starks, had reached the boy and was calling for an automobile. Bacon drove to where the boy was. Starks put the plaintiff in the truck and they drove off, picked up Mrs. Rice and then drove to a doctor in a neighboring town.

Several witnesses testified for plaintiff that they came to the Morean Street crossing around 3:00 p. m. and were unable to cross because there were train cars blocking the crossing. They all testified that after waiting some time, they drove to a dirt road crossing two blocks to the North and came back to Morean Street on the East side of the tracks. The crossing was still blocked when they came back to Morean Street.

The plaintiff’s version of the facts is as follows: April 22, 1957, was a school holiday. Jack R. Rice, who lived East of the tracks, was permitted by his mother to visit a friend, David Bettis, who lived West of the tracks. David was not home, so he went to another friend’s house, Doug Pittsford, one block West of the G. M. & 0. tracks. Plaintiff and Doug played for a while. Jack had been told by his mother to be home at 3:00 p. m. He started for home at about 5 or 10 minutes before 3:00 p. m. When the plaintiff reached the Morean Street crossing there were railroad cars on the business track blocking the crossing. He went back and sat down in front of the Village Hall located on the South side of Morean Street and just West of the business track. He did not see any trainmen on the West side of the track. After 15 minutes he walked around the Village Hall and behind a shed just to the South. He then walked East toward the tracks and back North to the Morean Street crossing. He testified that there was a seven-foot opening between two cars about three feet South of the pedestrian crosswalk on Morean. He started to walk through it. The railroad cars to his right and South of him started to move and knocked him down. He thought that his feet were run over on the East rail. He testified further that he fell and began to crawl in a Southerly direction between the rails and under the cars. He stopped crawling when the cars stopped moving and then scrambled out on the East side of the track. He was immediately taken to a doctor and then to a hospital in Springfield.

Defendant contends that the judgment should be reversed or in the alternative that said judgment be reversed and the cause remanded for a new trial on the issue of liability only. Defendant’s first argument is that the verdict and judgment in favor of the engineer also acquits the railroad. We cannot agree with this contention.

Defendant relies on the cases of Devore v. Toledo, Peoria & Western Railroad, 30 Ill App2d 409, 174 NE2d 883 (1961), and Larson v. Hines, 220 Ill App 594, (1921), for the proposition that the jury finding that the engineer was not guilty of negligence acquits the railroad. In Larson the plaintiff was killed when her horse-drawn buggy was trapped between two trains, one on the Eastbound track and the other, Westbound. The proximate cause of her death, appearing from the averments in all the counts of the complaint, was only the negligence in running and managing the locomotive engines and trains referred to. Thus, the acquittal of the engineers from negligence absolved the railroad from liability.

In Devore plaintiff was killed when his automobile collided with the defendant’s train. The engineer and fireman were named defendants and found not guilty of negligence. The complaint alleged that the defendants, the railroad engineer and fireman, were negligent in failing to ring a bell, failing to blow a whistle and operating a train at excessive speeds. With respect to these charges of negligence, a finding of not guilty as to the employees would absolve the railroad of liability. However, the court went on to consider the verdict against the railroad based on additional charges of negligence. It was only because of plaintiff’s contributory negligence that the judgment was reversed.

In the instant case the situation is similar to Devore. The complaint charged the railroad and the engineer with acts of negligence in operating, maintaining and controlling the locomotive and the train of cars, starting the train when plaintiff was attempting to cross between the cars, not keeping a proper lookout for pedestrians and not ringing a bell or sounding a whistle. In addition the railroad was charged with negligence in obstructing a public highway for a period of time in excess of that allowed by Statute. Furthermore, the proof showed that the conductor, who was not named as a defendant, was the person in charge of the train. The rear brakeman was the one who signalled the defendant engineer to move the train either forward or backward. The conductor took signals from other members of his crew and relayed the signals to the engineer. It is clear from the evidence that the defendant engineer was not the person responsible for control of the train, for keeping a proper lookout for pedestrians, or for obstructing the highway. The jury could and did find other employees of the railroad negligent and the railroad is responsible for their conduct.

Defendant further contends that the verdict is against the manifest weight of the evidence. This case was well prepared and capably presented to the trial court and jury. The Appellate Court will not substitute its judgment for the judgment of the jury unless the opposite conclusion is clearly evident, plain or indisputable. Jenkins v. Hechtman, 83 Ill App2d 72, 226 NE2d 383.

We are fully aware of the principle that where a case is submitted to the jury on both wilful and wanton misconduct and negligence, to sustain a general verdict there must be evidence of wilful and wanton misconduct. Barrows v. Midwest Transfer Co., 4 Ill App2d 191, 124 NE2d 20 (1955). Wilful and wanton misconduct has been generally defined as an intentional act which under the circumstances exhibits a reckless disregard for the safety of others. Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 211 NE2d 720 (1965).

Considering the evidence in the light most favorable to the plaintiff, (Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 211 NE2d 720 (1965)) we find that Morean Street was the main thoroughfare for both pedestrian and vehicular traffic in Nilwood. Defendant’s crew admitted that they were not concerned about leaving the pedestrian crosswalk clear of cars. The work train plus the 16 cars on the track constituted a train over 1,000 feet in length. The crew commenced “shoving” the cars on the business track, no one knowing the capacity of the track. No member of the 5-man crew was sent to the West side of the train to protect persons who might be there, nor was any crew member on the pedestrian crosswalk at Morean Street. Reasonable men might properly find that such actions show wilful and wanton misconduct under the above definition.

The defendant’s next contention is that plaintiff’s counsel was guilty of misconduct in impeaching defendant’s witnesses when he used prior testimony which was not in fact inconsistent. Defendant points to 16 such incidents. On three of these, defendant’s objection was sustained, on two the question was withdrawn and on two occasions, no objection was made. We have examined the record with respect to all the other incidents and find that the trial judge was correct in overruling the objection.

Defendant also objects to the method of impeachment of its witness John Vance, an employee of Kime Grain Company. Vance was at the elevator on the day of the accident. He testified that he saw trainmen on the East side of the track. On cross-examination the witness was shown the transcript of testimony of a prior trial of this case, was requested to review it and was then asked:

“Q. And did you at any time at the last trial make any reference to seeing a trainman on the East side of the business track or the service track?
“A. I don’t think I did.”
On redirect examination the following question was asked:
“Q. Did anybody ask you at the prior trial whether you saw any trainmen on the East side ?
“A. No.”

Defendant relies on only one Illinois case to sustain his position that this method of impeachment constitutes reversible error. That case is Larranie v. People, 222 Ill 155, 78 NE 50 (1906). In Larranie the court stated that it was improper on cross-examination to ask a witness in a murder trial whether he had related at a coroner’s inquest on the homicide the same facts he was stating in his testimony. Unless he was specifically interrogated or was directed, invited or given an opportunity at the inquest to so testify, it was improper to so cross-examine. This error when taken in connection with improper comments in closing argument was held to constitute reversible error.

However, in Ritzman v. People, 110 Ill 362 (1884), the court stated at p 371:

“We think, where a witness, on a second examination, as to a particular transaction, states an important fact omitted in his previous account of the matter, his attention, on cross-examination, may properly be called to the fact, and he be required to explain why the omission was made in his first statement. If, in such case, the fact in question was forgotten, or omitted through inadvertence, and the attention of the witness was not directed to it, as it often happens, the witness, of course, would so state, and that would end the matter. But if the discrepancy was intentional, the cross-examination, as a general rule, would develop the fact, and in such case it would, and properly should, affect the witness’ credit before the jury.”

This is precisely what occurred in the instant case.

In People v. Bonham, 348 Ill 575, 181 NE 422 (1932), decided after the Larranie case, the court was reviewing a situation where the defense attorney was using testimony at a coroner’s inquest to impeach a witness. The court concluded that “it was quite proper for the attorney for defendant to ask the witness why he had not mentioned in his testimony at the coroner’s inquest the fact that his attention was particularly called to defendant by his blowing smoke in the witnesses’ face.” (At p 591.) We find no error in the cross-examination of Vance.

The next point raised by defendant is error in permitting plaintiff’s counsel to read on rebuttal a rule of defendant railroad. The rule concerned procedures when crossing siding yards and before “shoving” cars. There is no question but that this was highly relevant to the issues in the case. The trial judge properly overruled objection to the rebuttal.

We now come to defendant’s argument, that error was committed in instructing the jury. Bitterly attacking plaintiff as a perjurer and playing “fast and loose with the truth,” defendant attacks the issues instruction submitted by plaintiff and given by the court. Plaintiff’s complaint alleged that State Highway #4 (Morean Street) was blocked by “a long train of cars extending to the north and to the south of the said State Highway #4. . . . (and) plaintiff, in attempting to cross between the cars, was then and there injured.”

The key portion of the issues instruction, which followed IPI 20.01.01, to which defendant objected stated:

“Plaintiff claims that at the time in question the defendant railroad caused State Highway 4 and the area to the north and to the south thereof to be blocked because of railroad cars, and that while attempting to cross between standing cars, in the exercise of that degree of care of a minor of his age, intelligence, experience and capacity, he sustained injuries.”

The portion of the instruction dealing with Count 2, wilful and wanton, was exactly the same except for the phrase dealing with the exercise of care.

Of the five instructions which defendant claims in his brief were erroneously refused, three reflect directly on the issues instruction. Defendant’s instructions all required plaintiff to prove that the accident “happened at about the Morean Street crossing,” and if the jury were to find that the accident did not happen at that place, they should find for the defendant. We do not feel that plaintiff was under any such burden.

The thrust of defendant’s argument is that plaintiff was not injured at the Morean Street crosswalk, but instead near the Kime Elevator Company, 180 feet South of the crosswalk. Thus, argues defendant, plaintiff was a trespasser and could recover only if defendant was guilty of wilful and wanton misconduct. As already discussed, we disagree with defendant as to the presence of evidence upon which reasonable men might conclude that the railroad was guilty of such conduct. Consequently, limiting the issues upon which a recovery could be based only to an attempt to cross at the Morean Street crosswalk was incorrect, and the trial judge properly refused defendant’s tendered instructions.

Defendant also submitted an instruction that stated “if you find . . . that plaintiff attempted to cross the tracks opposite the Kime elevator it would be your duty to return a verdict for the defendants.” This again is based on the false assumption that there is no evidence of wilful and wanton misconduct. This reasoning also applies to defendant’s allegation of error in instructing the jury as to the definition of wilful and wanton misconduct and that contributory negligence is no defense if such conduct occurred.

Error is also asserted with respect to the IPI instruction given on the effect of a statute. Defendant tendered a non-IPI instruction which said that if plaintiff was attempting to cross at Morean Street, you cannot find for him if the railroad unlawfully obstructed the crossing after the accident occurred. Defendant contended that the crosswalk was not blocked for ten minutes before the accident occurred. This was contradicted by various persons, including plaintiff who said he waited 15 minutes before attempting to cross the tracks. This issue was properly submitted to the jury. In addition, the IPI instruction given, clearly states that evidence of violation of the statute is to be considered “in determining whether or not a party was negligent before and at the time of the occurrence.”

The final error asserted by defendant was the trial court’s refusal to give a special interrogatory. The interrogatory submitted asked the jury if the plaintiff attempted to cross the tracks opposite the Kime Elevator Company. Special interrogatories are provided for in the Civil Practice Act, Ill Rev Stats c 110, § 65 (1965). However, a special interrogatory should not be submitted unless a finding on that fact would be inconsistent with the general verdict. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). An affirmative answer by the jury to the proposed question would not have been inconsistent with the general verdict.

We have already stated that there was sufficient evidence of wilful and wanton misconduct to sustain the jury’s verdict. Consequently, even if plaintiff was attempting to cross the tracks opposite the Kime Elevator Company, there was liability. Defendant’s interrogatory sought to establish only an evidentiary fact which is improper use of special interrogatories. Sphatt v. Tulley, 38 Ill App2d 229, 186 NE2d 670 (1963).

We have concluded that there was no error in the trial court, and therefore it is unnecessary for us to consider defendant’s request for a remandment on the issue of liability only.

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

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond White, Defendant-Appellant.
    Gen. No. 51,013.
    First District, First Division.
    May 26, 1967.

      Charles J. Durham, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was convicted of an attempt to commit murder and was sentenced to a term of 17 to 20 years. On appeal defendant contends “that the Court forced counsel upon the defendant and thereby denied defendant counsel of his choice and allowing one to represent the defendant who was not appointed and not of record.”

The record shows that the indictment was returned January 11, 1965. Defendant was arraigned on January 18, 1965, at which time he was represented by Bellows, Bellows and Magidson. On March 9, the Bellows firm was granted leave to withdraw, and an order was entered appointing the Public Defender of Cook County as counsel for the defendant. On April 5, 1965, the Public Defender was given leave to withdraw, and Richard Hall, a Chicago Bar Association attorney, was appointed, and he filed his appearance on that date. On April 20, 1965, a motion was made by “Charlotte Adelman and Richard Hall,” as attorneys for defendant, to advance and reset the case for trial and for a bill of particulars. On June 4, 1965, a subpoena duces tecum against O. W. Wilson, Superintendent of Police, was issued on a motion of Richard W. Hall.

On June 8, the court denied defendant’s motion to dismiss his counsel and ordered that the cause be “Held on Call day to day.” On June 14, the court ordered that the “Behavior Clinic of the Circuit Court of Cook County” examine the defendant as to his mental condition. On June 22, 1965, a motion to dismiss counsel was made, and in denying the motion the court said, “I regard Mr. Hall as a highly competent attorney. He has practiced in this court before. He is exceptionally diligent. He is able. Your motion to discharge him was made at the very moment you were about to go to trial. It is not made in good faith in the opinion of this Court. ... At this time, the cause having been held on call from day to day, commencing yesterday and we are ready for trial, and you stated that you do not want to be represented by Mr. Hall and Miss Adelman, so you have your choice to proceed as your own counsel, if you wish, or to continue with them as your counsel in view of the diligent effort they have been expending in your behalf, or to represent yourself with their advice as your counsel. What is your choice, Mr. White?”, to which defendant replied, “I have no choice. I am not going to represent myself, and Mr. Hall, and his associate aren’t going to represent me because they are not of my choice, and I don’t want them representing me.” The court further remarked, “You have had three different sets of counsel in this case.” After further colloquy between the court, defendant and Mr. Hall, the court directed that the trial proceed and the selection of a jury commenced. After voir dire examination of several prospective jurors, defendant interrupted and told the veniremen that Mr. Hall was not his attorney. The court, after a discussion with defendant, dismissed the venire and proceeded with a new venire, and the trial proceeded to a verdict.

During the trial, defendant’s wife was called as a witness for the State, and while she was being examined, the defendant stated, “I would like to let the jury know that they are forcing my wife into this. She does not want to testify against me and they are forcing her.” The court declared a recess, and the attorney for the defendant made a motion for a mistrial, which the court denied stating, “I warned the defendant the other day if he tried any stunts to disrupt this trial to obstruct justice that he would be punished,” after which the court sentenced defendant to a year in the County Jail for direct contempt.

Also, during the trial and out of the presence of the jury, the court remarked that Mr. Hall and Miss Adelman ably represented defendant and stated, “He has done far more work in this case than ordinarily would be expected of any defense counsel, him and Miss Adelman,” and admonished defendant to cooperate with them. At the hearing in mitigation and aggravation, the court remarked, “You, Mr. Hall and Miss Adelman, did a remarkable job with what you had to work with in this case. You devoted yourselves assiduously to the investigation of the case and you fought this case as hard and presented it as well as any defense counsel could possibly do. I compliment you both for it. I think you showed exceptional diligence and capability in endeavoring to do the utmost for your client.”

Defendant states that he does not contend that counsel was not provided for him, but that “his appointed counsel was so obnoxious toward him and his defense that there was a total destruction of communication between them; that the association of counsel and client was so antagonistic it was utterly impossible for any cooperation which would result in an effective defense of the defendant. Under these circumstances it was as if the defendant had no counsel at all, and the refusal of the Court to strike the appointment and appoint other counsel was in effect a denial to the defendant of counsel. . . . Defendant made no specific request for any particular lawyer and doesn’t assert that he has such a right, but he contends that it is fundamentally unfair to force him to trial with a lawyer that is totally unacceptable to him.”

To support his contention that he was denied due process of law, defendant’s authorities include the Sixth and Fourteenth Amendments of the Constitution of the United States, and Gideon v. Wainwright, 372 US 335. Glasser v. United States, 315 US 60, is cited to show “the failure of that court to make an effective appointment of counsel, may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment.”

Defendant also argues that the court improperly allowed Miss Adelman to participate in the proceedings without an appointment or filing of appearance, and “it was not fair for the trial judge to force Miss Adelman on the defendant.”

The State asserts that there is clear proof in evidence that defendant’s attorney acted diligently and was in close and harmonious communication with defendant, and that defendant made his first request for change of counsel on June 8, 1965, when he appeared on that date for trial, although Mr. Hall had been defendant’s attorney for a period of at least two months.

Authorities cited by the State include People v. Jones, 51 Ill App2d 391, 201 NE2d 194 (1964) (p 395):

“The indigent defendant has a right to be represented by counsel, but he does not have a right to experiment with various supplied counsel to the detriment of the orderly processes of the law.”

Also cited is People v. Gray, 33 Ill2d 349, 211 NE2d 369 (1965), where the court said (pp 353-354):

“While constitutional requirements obligate society to supply an indigent defendant’s need for counsel, (Gideon v. Wainwright, 372 US 335, L Ed2d 799, 83 S Ct 792), it is neither constitutionally necessary nor legislatively intended that selection of appointed counsel shall be unqualifiedly vested in the defendant. Such interpretation would enable defendants to delay trial by alienating successive appointed nonpublie defender attorneys until they withdraw or until one is appointed who agrees with defendant’s particular trial tactics and strategy regardless of the propriety thereof. Such is not the legislative intent. Once a nonpublic defender attorney is appointed, pursuant to defendant’s request, he has no further right to have another appointed after the withdrawal of the first in the absence of a clear showing of incompetence or prejudice to the defendant. He must then accept a competent attorney selected by the court, whether public defender or otherwise.”

And on page 355:

“The question of competency of counsel is one of fact and cannot be based solely upon assertions, . . . Moreover, it is well settled that ‘[t]o warrant a reversal because of incompetency of counsel, the record must clearly establish not only that counsel performed his trial duties in an incompetent manner, but also that defendant was substantially prejudiced thereby.’ ”

We have examined the transcript of the testimony and the trial proceedings. It is our observation that the defendant was ably represented through the trial. Although Miss Adelman presented several preliminary motions, the record does not indicate that she actively participated in the trial, and defendant failed to show any prejudice by her activities in his defense. At the trial, Mr. Hall diligently presented objections on behalf of defendant and extensively cross-examined the State’s witnesses. The record reflects the soundness of the court’s complimentary appraisal of the conduct of defendant’s defense by both Mr. Hall and Miss Adelman. Defendant was given a fair trial with the effective assistance of competent counsel.

Therefore, in the absence of a showing that defendant’s counsel performed his trial duties in an incompetent manner or that defendant was substantially prejudiced thereby, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.