author:
Mr. PRESIDING JUSTICE CRAVEN
      Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William, Holtzman, Defendant-Appellant.
    (No. 11636;
    Fourth District
    April 2, 1973.

      SMITH, J., dissenting.
    Prentice H. Marshall, of Champaign, and Edward Parsons, of American Civil Liberties Union, of Chicago, both for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Thomas L. Knight, Assistant State’s Attorney, and Robert Wennerholm, Senior Law Student, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

William C. Holtzman was convicted after a bench trial of criminal trespass to State supported land in violation of activity proscribed by section 21 — 5, chapter 38, Illinois Revised Statutes, 1969. Upon conviction, a fine was imposed. By this appeal from that conviction, the defendant urges that the evidence was insufficient to establish guilt beyond a reasonable doubt, and, further, that the statute defining the offense as here applied is violative of the defendant’s constitutional rights to freedom of speech and freedom of petition.

We agree with the contention that the evidence does not establish a violation of the statute, and therefore we do not reach the constitutional issue.

Section 21 — 5 of chapter 38, so far as is here relevant, defines the offense as:

“Whoever enters upon land supported in whole or in part with State funds, * * * or any building on such land, * * * or remains upon such land or in such building after receiving notice from the State or its representative to depart, and who thereby interferes with another person’s lawful use or enjoyment of such building or land, shall be fined not to exceed $1,000 or imprisoned in an institution other than the penitentiary not to exceed one year.”

The People urge that the word “interferes” as used in the statute means that kind of conduct which by its nature tends to hinder, disrupt or obstruct the orderly function of the official enterprise being carried on in the building or on the land. We accept that definition as generally applicable to the proscribed activity. As thus defined, the statute clearly prohibits activity that interferes with another persons use or enjoyment of such land or building after receiving notice to depart. Thus, entering upon land supported in whole or in part by State funds, or remaining thereon after receiving notice to depart and interfering are each essential elements of the offense.

The facts and evidence in this case establish that the defendant, a student at the University of Illinois at Champaign, was soliciting signatures to a petition demanding that the University stop purchasing iceberg lettuce. The defendant was in sympathy with the United Farm-workers Union and his activity was in furtherance of the so-called “lettuce boycott”. He sought signatures in the Union Building, in the area of the snack bar, its lobby, and near the condiment trucks or trays in that area.

The evidence is that the defendant, as a student of the University and as one who had paid an activity fee, was entitled to use the facilities of the Union Building, including the snack bar area. Without a detailed recitation of the evidence, it is fair to say that his solicitation of signatures at the head of the cafeteria line caused some congestion and “interfered” with the orderly and apparently the fast movement of that line. The defendant was asked by an employee of tire Union to stop his activity. The defendant did stop his solicitation in that location.

The defendant then moved to the public lobby area outside thé snack bar, outside the food serving or cashier area. In this new position, he again solicited signatures to his petition. A university police officer saw his activity and instructed him to discontinue. The officer handed the defendant a copy of the university regulation that sought to regulate picketing and to prohibit picketing inside university buildings. The defendant did not cease his efforts. John Cocker, assistant director of the Union, told the defendant he could not engage in his picketing in the new location. The defendant did not cease. Cocker left, returned with another police officer, and the defendant was thereafter arrested. There is no evidence that the defendant’s conduct in the second or lobby location interfered with the use or enjoyment of the premises by any other person; thus, interference after the requisite notice is not established. Hie offense as defined by the statute is not established. (See People v. Bufford, 132 Ill.App.2d 417, 270 N.E.2d 550.) The conviction is therefore reversed.

Reversed.

SIMKINS, J., concurs.

Mr. JUSTICE SMITH

dissenting:

I dissent because my view of the evidence is that there was interference as a matter of law, that is, a trier of the facts could so find. The majority opinion simply says that there was no evidence that his conduct interfered with the use or enjoyment of the premises by any other person. As I have said, I do not read the evidence to be this way at all. Accordingly a recital is in order.

Defendant was a student at the University of Illinois, Urbana, and for reasons of his own — certainly not in evidence — he was opposed to the serving and presumably the eating of non-union picked lettuce — he characterized such as “scab lettuce”. His jeremiad took the form of soliciting signatures in the Illinois Union Building, a recreational center for students, to a petition — “Petition to End University Financial Support of Scab Lettuce Growers”. Following this heading, the petition read that the “undersigned demand” the University to end its “unwarranted obstruction of self-determination for farm workers”, that the University was using “its enormous purchasing power to support a small, self-interested clique of growers by buying their lettuce”, and spoke to the theme that in so doing the University was helping to break the strike of lettuce pickers “who are trying to climb out of poverty”, it demanded cessation of “meddling” in this labor dispute by the University using “its purchasing orders to support the growers”, and demanded a stop to purchase “iceberg lettuce altogether”, and explained, somewhat disingenuously the converse of the above, that by not buying lettuce the University “would not be cooperating with either” side, this was followed by a culinary observation that the University “should find other types of lettuce for use in salads” (not specified), and demanded “immediate initiation” of this policy — no scab iceberg lettuce — and that by doing so the University will then “conform to both the spirit and the letter of its own policies and of state law.” — how this state of affairs would come about was not gone into, but left to imagination. In search of signatures, defendant first went to the basement area of the Union where the food services were located and stationed himself at the head of the cafeteria line speaking to those who passed to support the lettuce boycott and how this could be done — by signing his petition. He was asked to stop— and did, at least there. Since his petition related to food — and reasoning, we assume that the hungry would be the most apt to sign — he retreated to the snack bar — again to solicit signatures. This was during the noon hour. He was not in the food serving area as such, as he had been in the cafeteria, but instead he chose to make his stand near the pickle, ketchup and mustard stations. A police officer instructed him to discontinue what he was doing and handed him a form which read in part that, “Students who picket on University premises must do so in a peaceful and orderly fashion. Picketing should not involve invasion of the rights of others, interference with the operations of the University, or jeopardy to public order and safety. Specifically * * * Picketing inside University buildings is prohibited.” He declined to desist and continued his efforts. His modus operandi was simply to stop persons and ask them to sign his petition. Next, the Assistant Director of the building told him that he could not engage in his petitioning activity in the area which he had chosen, but nothing daunted, he continued his quest. Enter: The Chief of the University Police. He, likewise, advised defendant that he should discontinue what he was doing or leave the building. Defendant again declined and this time he was arrested for Criminal Trespass To State Supported Land. Though he merely spoke to prospective petitioners— urging them to support the boycott by signing his petition, the evidence certainly supports the conclusion that he stopped everyone within reach and not only urged them to sign his petition but urged them also to eat elsewhere. He had positioned himself in an area and at a time when there was a heavy flow of traffic. Ingress and egress to the snack bar was not easy, the entryways being sufficient to accommodate only two people. His conduct, or so it was testified to, did cause people to congregate about him, blocking such entryways and making it difficult for patrons of the snack bar to get in and out — they had to walk around him. There was some conflict in the evidence on some of these aspects — suffice it to say, there was evidence enough to support this recital.

The central issue, as I see it, as to the question of proof of guilt beyond a reasonable doubt, is whether by remaining in the building after receiving notice to depart, he did, as a matter of law, interfere “with another persons lawful use or enjoyment” of the Ulini Union Building —in other words was there interference within the meaning of this section. Well, there was certainly not interference in the football sense, but indubitably there was a “butting in” though without actually obstructing anyone, certainly a meddling, though physical intervention was absent. The verb “interfere” equates with insinuate, impose, to butt, horn, cut, push, or press in — to worm in, to thrust oneself upon or impose upon —kibitzing, even, can be interference, not unlike interference on the television. To situate oneself as defendant did between the condiment trays, adjacent to a snack bar, during the noon hour when the traffic was heavy — the evidence supported this — to stop persons as they were coming or going through the snack bar line, and asking them to sign his petition, creating the congestion and inconvenience described above, is, in my opinion, to interfere with such persons’ lawful use or enjoyment of the Union Building, particularly, their enjoyment 'of the snack bar. Indeed, as an aside, who could savor prepandial or post their lunch knowing that there was “scab” lettuce about. In short, I consider defendant’s activities to be interference in law, and thus, since the evidence was certainly ample, a trier of the facts was justified in finding him guilty of the offense with which he was charged. I would therefore affirm.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James William Bell, a/k/a Jimmie Bell, Defendant-Appellant.
    (No. 11755;
    Fourth District
    April 2, 1973.
    John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Arthur J. Inman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant Bell was charged with abortion. Upon a jury trial he was convicted and sentenced to a term of not less than 6 nor more than 10 years in the state penitentiary. This appeal is from that conviction.

The defendant urges that the proof was insufficient to establish his guilt of abortion beyond a reasonable doubt and that error was committed in the trial of the case, the effect of which was to deny him a fair trial and, finally, that the abortion statute under which defendant was convicted is unconstitutional and void.

The defendant in this case is not charged with having actually performed an abortion but rather is charged under the accountability sections of our Criminal Code with having solicited, aided, or abetted the abortion, and was thereby guilty as a principal.

Paragraph 5 — 2(c) of chapter 38, Illinois Revised Statutes, 1969, provides that one who promotes or facilitates the commission of an offense or aids, abets, agrees, or attempts to aid, such other person in the planning or commission of an offense is criminally accountable.

In People v. Frey, Nos. 43729, 43882, Cons. Illinois S.Ct., March, 1973, our Supreme Court held the Illinois statute prohibiting abortion to be unconstitutional. That opinion was based upon the decision of the Supreme Court of the United States in Roe v. Wade, 35 L.Ed.2d 147, 93 S.Ct. 705.

In the course of analyzing the Illinois Statute within the requirements of Wade, the Illinois Supreme Court concluded and specifically held that section 23 — 1(b) of chapter 38, Illinois Revised Statutes (1963), was unconstitutional, and, likewise, specifically held that section 23 — 1(a) of chapter 38, Illinois Revised Statutes (1963), was unconstitutional. The defendant was convicted by reason of accountability resting upon a criminal offense as defined in the foregoing statutes.

In view of the holding that this statute is unconstitutional, it necessarily follows that the conviction of the defendant under that statute cannot stand. Where the statute creating the offense is invalid, a judgment entered thereon is erroneous and void. People v. Collins, 50 Ill.2d 295, 278 N.E.2d 792.

Accordingly, the judgment of the circuit court of Sangamon County, is reversed.

Judgment reversed.

SIMKINS and SMITH, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    Charles E. Foster et al., Plaintiffs-Appellants, v. Raymond J. Heitzman, Defendant-Appellee.
    (No. 11782;
    Fourth District
    April 2, 1973.

      Carlon & Carlon, of Normal, (Patricia A. Carlon, of counsel,) for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria, (James B. Lewis, of counsel,) for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs, who are landlord and tenant respectively, sued for damages to their standing corn allegedly caused by defendant’s cattle. Following a jury verdict, judgment was entered for defendant. Plaintiffs’ post-trial motions were denied and they appeal.

Defendant kept some 35 cows and calves in a 120 acre pasture. Defendant also had land held in “diverted acres” lying between the pasture fences and an adjoining portion of plaintiffs’ farm known as “Willow Bottom”. Plaintiffs had corn planted in this bottom, as well as corn on higher ground.

No one lived on defendant’s farm. The evidence is that defendant inspected the four strand barbed wire fence around the pasture at least once a week and counted his cattle, and that he usually was in the neighborhood several times a week and would then count the herd. He had last inspected the pasture fence on September 28, 1969, but following a storm on October 3rd he had gone to count the cattle.

On the morning of October 6th, one Clark, who was moving into the improvements on plaintiffs’ farm, saw several cows in a nearby cornfield. He rounded up and penned the cattle and notified the plaintiff, Foster. It was ultimately determined that the cattle belonged to the defendant. The latter testified that he understood from Foster that the animals were secure and did not go immediately to pick them up, but rather carried on with a planned celebration of a wedding anniversary. On October 7th, defendant hauled the cattle back to his pasture, and upon inspecting the fence found that a fallen tree had torn loose the two top strands of barbed wire. He then found some cattle that had left the pasture and were then lying just beyond his “diverted acres” in a part of “Willow Bottom”, which was not under cultivation. Defendant was alone and felt it would be difficult to drive the cattle for it was a possibility that he might spook them so that they would run in the wrong direction. He stated that he was not aware than any corn was planted in “Willow Bottom”. He returned with his son on the afternoon of October 8th and drove the cattle back to the pasture and repaired the fence.

Ill. Rev. Stat. 1969, ch. 8, par. 1, makes it unlawful to permit cattle to run at large, but also provides:

“[T]hat no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.”

Defendant pleaded affirmatively that he had exercised reasonable care in restraining the cattle, and that the breaking of the fence was an act of God.

Plaintiffs urge that a verdict for defendant is against the manifest weight of the evidence, pointing out that defendant did not come to pick up the cattle on October 6th and that, after discovery of the break in the fence on October 7th, did permit the cattle to remain over night.

The issues are whether defendant took reasonable precaution to prevent the animals from running at large, and whether, after knowledge of the escape, he acted reasonably.

A reviewing court will not disturb the verdict of a jury on the ground that it is against the manifest weight of the evidence unless an opposite conclusion is plain and indisputable. (Lau v. West Towns Bus. Co., 16 Ill.2d 442, 158 N.E.2d 63; Cochran v. Parker, 91 Ill.App.2d 56, 233 N,E.2d 443.) The reviewing court may not set aside a verdict merely because the jury might have reached a different conclusion, or because the judges feel that another conclusion might be more reasonable. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847.

In Johnson v. Sleaford, 39 Ill.App.2d 228, 188 N.E.2d 230, defendant’s cattle were permitted to roam at large for some five months. It was there said, however, that reasonable care under the circumstances was a proper question of fact for the jury.

Upon the issues here, the evidence that cattle were enclosed in a sufficient barbed wire fence inspected weekly is sufficient to sustain a jury verdict that defendant used reasonable care to prevent the animals running at large. Again, upon the facts in evidence, it cannot be said that as a matter of law the jury erred in determining that defendant acted reasonably after the notice that the cattle were loose.

The judgment is affirmed.

Affirmed.

CRAVEN, P. J., and SIMKINS, J„ concur.


author: Mr. JUSTICE SCHWARTZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Johnson, Defendant-Appellant.
    (No. 55609;
    First District (2nd Division)
    December 28, 1971.

      Rehearing denied March 27, 1973.

    Delars J. Bracy, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Larry S. Boress and Robert A. Novelle, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant, aged eighteen, pleaded guilty to a charge of criminal damage to property (Ill. Rev. Stat. 1969, ch. 38, par. 21.1) and was sentenced to serve one year on probation, the first six days thereof to be served in the House of Correction. On July 2, 1970, the State petitioned for a rule requiring defendant to show cause why the probation should not be terminated for violation thereof in that the defendant had been arrested in connection with a fire at a Sears Roebuck building in Harvey, Illinois. The petition was allowed and on a hearing the court entered judgment terminating the probation and sentencing defendant to 31 days in the House of Correction. Defendant has appealed and contends that the State failed to prove by a preponderance of the evidence that he was guilty of violating his probation and that the court committed error because its decision was based on matters not included in the petition. The facts follow.

On July 2, 1970, a rule to show cause why probation should not be terminated was issued by the State. The probation officer’s report on which the petition for a rule to show cause was based alleged that defendant had been arrested by the police in Harvey, Illinois on the night of April 28, 1970, and charged with attempted arson and the possession of an incendiary device. At the hearing it was revealed that the Cook County Grand Jury had voted a “no bill.”

On the night in question defendant left his home at 11:55 P.M. and arrived at Ingalls Memorial Hospital at 12:05 A.M. He went to the hospital to speak with Sylvester Stokes, a security guard at the hospital who worked with defendant at Interlalce Steel. Defendant had been fired from his job at Interlake after having an epileptic seizure and Stokes told defendant he would help him get his job back. Stokes testified to the foregoing facts in explanation of the defendant’s presence in the vicinity of the hospital. He further testified that it was difficult, if not impossible, for defendant to get in touch with him during the day because he slept then and left his phone off the hook. Stokes further stated that he saw defendant come up to the hospital and that he was not running. After defendant had been at the hospital about ten minutes, he was taken into custody by the police in connection with a fire at tire Sears Roebuck store in the vicinity.

Officer Willie Cobb testified for the State that he and Officer Charles Severs responded to a call to investigate a fire before midnight on April 27, 1970, at the Sears Roebuck store in Harvey. He stated that he saw defendant in an alley behind the store with a bottle filled with an inflammable liquid. When defendant saw a police car, he dropped the bottle and ran.

The law is well settled, and there is no dispute here, that where the vital question in a proceeding for violation of probation concerns the commission of a crime by the probationer, the violation must be proved by a preponderance of the evidence. People v. Burrell, 334 Ill. App.2d 253, 79 N.E.2d 88; People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528.

The evidence presented by the State was the testimony of police officer Cobb before referred to. That testimony was uncorroborated. Defendant denied being at or near the Sears store on the night in question. He denied possession of any bottle containing inflammable material and. explained why he was at the hospital. His testimony was corroborated by Stokes, the guard at the hospital, and by his mother. Cobb,did.not pursue defendant nor was any bottle presented at the trial. The officers who arrested defendant at the hospital were not called to testify.

At the hearing the court pointed out that a violation of any ordinance is a violation of probation. (Ill. Rev. Stat, 1969, ch. 38, par. 117-2(a) (I).) The record shows that the court considered evidence with respect to charges of unlawful use of weapons and attempted arson in determining whether there was a violation of probation. These charges had, it appears, been dismissed. The State moved to nolle the attempted arson case, which motion was allowed and the case was then continued. Within a month the State moved the court to strike the unlawful use of weapons complaint from the docket. The court allowed the State’s motion to so strike and as of July 6, 1970, there were no criminal complaints pending against the defendant.

© 2,3 A probationer is entitled to know the nature of the charges against him. (People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528.) The before mentioned complaints on which the petition for a rule to show cause was based had been dismissed on the State’s own motion. It now appears that all the charges have been dismissed either by the State or by the Grand Jury for want of evidence. The charge against the defendant was not proved by a preponderance of the evidence and accordingly the judgment will be reversed.

Judgment reversed.

LEIGHTON, P. J., and STAMOS, J., concur.


author: Mr. PRESIDING JUSTICE DIERINGER

text:
    Patricia C. Albert, Plaintiff-Appellee, Cross-Appellant, v. Arthur F. Albert, Jr., Defendant-Appellant, Cross-Appellee.
    (No. 53681;
    First District (4th Division)
    December 13, 1972.

      Slutzky & Slutzky, of Chicago, for appellant.
    Louis Yager Cantwell and William D. Sampson, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE DIERINGER

delivered the opinion of the court:

Arthur F. Albert, the defendant in a divorce action, appeals from an order entered September 16, 1968, in the Circuit Court of Cook County directing him to pay two-thirds of the plaintiff’s attorneys’ fees after tire court had entered a decree of divorce in her favor and found her holdings to be worth almost $200,000. The court also found his holdings to be worth about $300,000. He contends he should not pay any of her attorneys’ fees. Patricia Albert, the plaintiff, cross-appeals from the same order and contends the defendant should pay the entire amount.

The issues on review are whether tire court abused its discretion in ordering the husband to pay two-thirds of his wife’s attorneys’ fees and whether tire defendant stipulated in the trial court that the fee asked for by her attorney was reasonable and fair; also, whether the husband should pay the entire fee.

The parties were married on April 7, 1951, and are tire parents of one minor child. On May 29, 1967, the plaintiff filed her original complaint for divorce, alleging desertion by her husband more than three years before, even though they continued to live in the same house. On July 7, 1967, she filed an amended complaint under the Illinois Divorce Act, which had been newly amended to include mental cruelty as a ground of divorce. She filed her third amended complaint for divorce alleging mental cruelty on November 13, 1967.

On April 19, 1968, the defendant filed a countercomplaint for divorce alleging his wife deserted him as of March 15, 1967, even though they continued to reside in the same house.

On June IS, 1968, the decree for divorce in favor of Patricia Albert was entered, which approved a settlement between the parties giving the wife tire marital home and $500 per month for support of the minor child, but no alimony. On August 13, 1968, a hearing on fees was held, at which tire plaintiff’s attorney represented that a reasonable sum for his services was $17,500. Two other witnesses, both attorneys with experience in the divorce field, testified, and their estimates of a reasonable fee for the services rendered were $19,000 and $20,000 respectively.

The defendant contends the plaintiff is not entitled to be awarded attorneys’ fees because the court found she had an estate of almost $200,000 and did not show an inability to pay. The plaintiff contends the defendant should pay all her attorneys’ fees because he is much better able to pay, he was found to be legally at fault, and he engaged in techniques of legal harassment which extended and complicated the litigation.

The court found the plaintiff had an estate of almost $200,000, which included the value of the marital home, and the defendant had an estate of approximately $300,000. The court also found that $17,000 was a fair and reasonable fee and ordered the plaintiff pay one-third and the defendant two-thirds.

We believe the significant circumstance of the case was not the relative ability of the parties to pay, each of whom had sufficient means, but rather the litigiousness of the defendant. The record shows he combined legal tactics, which delayed the proceedings, with a campaign of economic coercion.

The defendant filed three motions to strike the plaintiff’s complaint and was successful on two. In each of the motions he alleged the parties were living together as man and wife under one roof, but later admitted in his discovery deposition that he had not had sexual intercourse with his wife “for some years” prior to 1968. Then he filed a countercomplaint for divorce alleging his wife deserted him while residing under the same roof with him, a complaint which he did not support with evidence, and be finally asked that it be dismissed.

The countercomplaint also alleged the plaintiff-counter-defendant was an “unfit mother because of her uncontrollable temperament, bad habits, abusive manners, and general inability to care for” their nine year old child. The divorce decree indicated she was “in all respects a fit and proper person and to have sole care and custody of the minor child # # * »

Additional evidence of the defendant’s bad faith is exemplified by his intentional reduction in income. In 1966 he had a salary of $25,000 and a gross income of $60,032, in 1967 he had a salary of $25,000 and a gross income of $36,819, and in 1968 he took a job with his father’s company at $175 per week. She is not employed.

Even though the court found the wife’s estate was worth almost $200,000, that amount included the marital home value at $50,000. The remainder, which she inherited from her father, was not sufficient to generate an income to support her in the manner to which she was accustomed.

Section 16 of tire Divorce Act (Ill. Rev. Stat., ch. 40, sec. 16), provides that granting fees to either party is in the discretion of the court, and it is fundamental that a judgment of the court will not be disturbed unless there was an abuse of discretion. Where there have been charges that excessive fees were allowed, courts have not failed to uphold the amounts if a party deliberately impedes the progress of the trial or files a complaint which is not abandoned until trial, thus necessitating extensive preparation by the opposing party. (Strom v. Strom (1957), 13 Ill.App.2d 354; Canady v. Canady (1964), 30 Ill.2d 440.) The case of Booth v. Booth (1971), 132 Ill.App.2d 758, 270 N.E.2d 171, involved the issue of whether the husband should pay for his former wife’s attorney on an appeal he initiated. This court noted his pattern of appealing every final order and held he was entitled to make whatever appeals he might think proper but was under an obligation to pay for the fees incurred by the opposing party.

Similarly, we believe the defendant in the instant case may make use of whatever procedures are open to him under the law, but if there is a lack of good faith he is under an obligation to pay for the resulting litigation. The court found the defendant to be at fault and granted the divorce to his wife. His motions to strike contained the untrue allegation that the parties were living together as husband and wife, and his counterclaim for divorce was not pursued in good faith and contained untrue allegations concerning his wife’s fitness as a mother. He caused the extended litigation and, in view of the record in this case, it was an abuse of discretion for the trial court not to grant the plaintiff the full amount of her attorneys’ fees.

The defendant also challenges the amount of fees allowed by the court and argues there was not a sufficient basis in the record for an award of $17,000. The record shows the defendant’s attorney stipulated in open court that $17,500 was a reasonable amount without stipulating as to who was supposed to pay it.

For the reasons stated, the order allowing the plaintiff partial fees and costs is reversed and the cause is remanded with directions to aHow the plaintiff her fuU attorneys’ fees in the sum of $17,000 and the full costs in the amount of $416.45.

Reversed and remanded with directions.

BURMAN and ADESKO, JJ, concur.


author: Mr. PRESIDING JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jose L. Chacon (Impleaded), Defendant-Appellant.
    (No. 55402;
    First District (4th Division)
    February 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (Nunzio D. Tisci, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James E. Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.


author: Mr. PRESIDING JUSTICE BURMAN Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Goss, Defendant-Appellant.
    (No. 56045;
    First District (4th Division)
    February 21, 1973.

      DIERINGER, J., dissenting.
    James J. Doherty, Public Defender, of Chicago, (Sandra-Ann Strasel and James N. Gramenos, Assistant Public Defenders, of counsel,) for appellant.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, James R. Truschke, and Lois Feinberg, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

Defendant, David Goss, together with Anthony Robinson and Kenneth Simmons, was charged with the murder of Miguel Barreto, armed robbery of Miguel Barreto and Terrie Tatum, aggravated battery upon Terrie Tatum and unlawful restraint of Terrie Tatum. Goss waived a jury trial. After a trial by the court, which preceded the trial of Simmons and Robinson, Goss was found guilty of murder (under the felony-murder rule), aggravated battery and armed robbery as charged. The unlawful restraint count was stricken. Defendant was sentenced to the penitentiary for a term of not less than fifty (50) nor more tiran one hundred (100) years on the charge of murder, not less than five (5) nor more than ten (10) years on the charge of armed robbery and five (5) to ten (10) years on the aggravated battery charge, the sentences to run concurrently.

On appeal, defendant contends that he was not proven accountable on the charge of murder beyond a reasonable doubt and that the fifty (50) to one hundred (100) year sentence was excessive.

Terrie June Tatum testified that on November 18, 1970, at about 10:00 P.M., she and Miguel Barreto left her sister’s home and went to a nearby gas station to call a cab. She was making the call and Barreto was standing beside her when Robinson, Simmons and Goss appeared. Mrs. Tatum stated that Robinson pulled a gun, and that he and Goss pushed tire victims down. The three men told the victims to get up or they would kill them. They led Mrs. Tatum and Barreto into an alley and took their rings and Barreto’s watch. Then Robinson and Goss started beating Miguel. Simmons told Barreto to get up or he would shoot him. When Miguel could not get up, Robinson bent down and shot him in the back of the head. Mrs. Tatum stated that after the shooting Goss called her names and said, “Let’s shoot her.” Simmons said, “Let’s take her to bed.” A police car came by and she screamed.

Officer Jerry Warywoda testified that he saw Goss dragging Terrie Tatum down the street with his hand around her neck and that she screamed, “Help. They have just killed my boyfriend.” The officer placed Goss under arrest. Officer Robert L. Grenlie testified that he searched David Goss and found some of the victims’ property and some cartridges. These items were inventoried. It was stipulated that if Dr. Jerry Kearns were called, he would testify that in his opinion the cause of Miguel Barreto’s death was a bullet wound in the head.

The defendant, David Goss, took the stand on his own behalf. He testified that he was in the company of Anthony Robinson and Kenneth Simmons when Robinson said he was going to rob two people standing at a phone booth. Defendant asked Robinson if he was crazy, and when Robinson replied he was serious, defendant crossed to the other side of the street. He saw Robinson pull a gun. Robinson took the man and woman into the alley and hit the man on the head with the gun. Defendant came back across the street and told Robinson not to do it, to just take their money. Robinson turned the gun on Goss and told him to get out of his way. The defendant stated that he pushed Robinson back. Goss said he was about five feet away when Robinson shot Barreto. The defendant denied that he robbed the victim or beat up Barreto.

Defendant contends that his accountability for murder was not proven beyond a reasonable doubt. He alleges that he was not a participant in the crime charged, but rather that he was a victim of an unfortunate choice of friends and was merely in the wrong place at the wrong time. Defendant cites People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284, for the proposition that the legislature did not intend to establish criminal responsibility through guilt by association.

In Ramirez, the court stated that in order to bring an accused within the provisions of the accountability statute, ch. 38, Ill. Rev. Stat. 1969, par. 5-2(c), three elements, which it found were not present in that case, must be established:

“(1) that he solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) that this participation on his part must have taken place either before or during the commission of the offense; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense.” 93 Ill.App.2d 404, 410, 236 N.E.2d 284, 288.

In the instant case, it is undisputed that Goss was present when Robinson stated he was going to rob the victims and during the commission of the crimes. There was evidence that the defendant, along with the others, pushed the victims down at the phone booth, then told them to get up and took them into the alley. The trial court also had evidence before it that Goss and Simmons took jewelry from the victims, that Goss gave Barreto a beating before he was killed and that a police officer saw the defendant dragging Mrs. Tatum down the street with his hand around her neck.

The facts in the instant case show far more than the mere presence of Goss. We think there was ample evidence to establish beyond a reasonable doubt all three of the elements required by Ramirez. Where, as here, a case is tried without a jury, it is the function of the trial judge to determine the credibility of the witnesses and the weight to be afforded their testimony, and a conviction will not be reversed unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Nicholls, 44 Ill.2d 533, 540, 256 N.E.2d 818, 822-823.

We find no merit to the contention that the testimony offered by the State was so inconsistent and conflicting as to leave a reasonable doubt as to defendant’s guilt. Any discrepancies were slight and inconsequential.

We have been asked to consider a reduction of defendant’s sentence of 50 to 100 years on the murder conviction. At the time of the sentencing, tire defendant was 18 years of age and had no criminal record. The evidence reveals that the defendant was not the one who pulled a gun and deliberately shot and killed the deceased. We have considered these factors and the ability for rehabilitation of the defendant.

As stated in People v. Scott, 117 Ill.App.2d 344, 350, 253 N.E.2d 553, 556, the principle of indeterminancy of sentence necessarily leaves to the professionals in the behavioral sciences the determination of the optimum date for release, whereas the court in fixing a maximum sentence can determine the total length of possible incarceration.

A reviewing court is empowered under Supreme Court Rule 615, ch. 110A, Ill. Rev. Stat. 1969, par. 615(b) (4), to reduce the punishment imposed by the tidal court. We are aware of the Supreme Court’s admonition in People v. Taylor, 33 Ill.2d 417, 424, 211 N.E.2d 673, 677, that this power should be applied with considerable caution and circumspection. Nevertheless, under the facts and circumstances in this case we are of the opinion that the sentence was excessive, and that a more appropriate sentence would be imprisonment for a term of not less than twenty-five (25) nor more than one hundred (100) years for the offense of murder. We modify the Circuit Court judgment to that extent.

As modified the judgments of the Circuit Court are affirmed.

Judgments affirmed as modified.

ADESKO, J., concurs.

Mr. JUSTICE DIERINGER

dissenting:

I concur on affirming the judgments of conviction, but respectfully dissent as to reduction of sentence.


author: Mr. JUSTICE DIERINGER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sam Lindsey a/k/a Sammy Linzon, Jr., Defendant-Appellant.
    (No. 56412;
    First District (4th Division)
    February 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE DIERINGER.


author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Aaron Doyle Pinkston, Defendant-Appellant.
    (No. 56509;
    First District (4th Division)
    February 21, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Lois Feinberg, and Ronald Neville, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Aaron Pinkston, was charged with armed robbery. (Ill. Rev. Stat. 1969, ch. 38, par. 18-2). After a bench trial, he was found guilty and sentenced to two to five years in the Illinois State Penitentiary. On appeal defendant contends (1) that he was denied equal protection of the law in the application of the 120 day speedy trial rule and (2) that he was not proven guilty beyond a reasonable doubt.

On January 17, 1971, at approximately 7:30 P.M., the Convenient Food Store at 1039 25th Avenue, Bellwood, Illinois was robbed. Officer Vandenbroucke, eyewitness to the robbery and a store customer, testified that he had observed the robber for approximately four minutes under very good lighting conditions. Vandenbroucke positively identified the defendant as the robber and stated that the .32 automatic weapon taken from defendant by Officer Woods was similar to the weapon used in the robbery. Vandenbroucke also testified that he saw the defendant take O’Connor’s wallet. Mrs. Rowe, eyewitness to the robbery and cashier at the store, testified that the defendant looked like the robber. Mr. O’Connor, eyewitness to the robbery and the store’s night manager, testified that defendant took his wallet and that the wallet taken from defendant by Officer Woods was his. Officer Woods testified that when he arrested and searched the defendant he found O’Connor’s wallet and a .32 automatic weapon.

Defendant, testifying in his own behalf stated that he was sick at home at the time the robbery occurred. He further testified, without corroboration, that Marcus Heron gave him O’Connor’s wallet and a .32 automatic weapon to sell. Defendant’s 17 year old brother, Benjamin Titus, corroborated defendant’s alibi testimony.

Defendant’s first contention on appeal was that he was denied equal protection of the law in the application of the 120 day speedy trial rule. Defendant made his first court appearance four days after his arrest. At this court appearance a public defender was appointed who asked for a continuance in order to have time to properly prepare the defense. The public defender also mentioned the possibility of a negotiated plea. Defendant did not protest tire public defender’s request for a continuance. Defendant contends that he should not be charged with this continuance because if he had been able to retain private counsel, at the time of his arrest, he would not have found it necessary to ask for a continuance because his counsel would have had an opportunity to prepare his defense. There is nothing in the record to show that a private attorney would not have asked for a continuance. We find that the defendant was properly charged with the continuance of January 29, 1971 and that the 120 day period was thereby renewed and commenced to run again. Ill. Rev. Stat. 1969, ch. 38, par. 103-5 (a).

Defendant’s second contention on appeal was that he was not proven guilty beyond a reasonable doubt. Officer Vandenbroucke had ample opportunity to observe the defendant under good lighting conditions. Other witnesses testified that the defendant looked like the robber. O’Connor’s wallet, taken during the robbery, and a .32 automatic weapon, similar to the weapon used in the robbery, were found in the defendant’s possession when he was arrested. Furthermore, the fact that the defendant produced an alibi supported by his brother and sister does not, in and of itself, constitute reasonable doubt as to his guilt. Conflicts in the testimony are for the resolution of the trial judge, and he is not obliged to believe the alibi testimony of the defendant and his witnesses over tire positive identification of Officer Vandenbroucke. (People v. Setzke, 22 Ill. 2d 582, 586, 177 N.E.2d 168.) The tiler of fact makes the determination of the witness’ credibility and we find that the evidence is not so unsatisfactory as to create a reasonable doubt of defendant’s guilt that determination will not be disturbed. People v. Holt, 124 Ill. App.2d 198, 201, 260 N.E.2d 291.

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

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    Roger L. Schierhorn et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk of the City of Chicago, et al., Defendants-Appellees—(Elwood R. Robertson et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk of the City of Chicago, et al., Defendants-Appellees.)
    (Nos. 56722-23 cons.;
    First District (4th Division)
    February 21, 1973.

      Morton Siegel, of Chicago, (Kenneth S. Freedman, of counsel,) for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Thomas J. Cachor, Assistant Corporation Counsel, of counsel,) for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiffs, five residents of the 2nd Precinct, 46th Ward, and five residents of the 38th Precinct, 46th Ward, in Chicago, Illinois, filed this action in the Circuit Court of Cook County to contest the validity of two separate local option elections held on April 6, 1971, in which a majority of the voters voted against the sale of alcoholic liquor at retail. The defendants are John C. Marcin, City Clerk of the City of Chicago, and the Board of Election Commissioners of the City of Chicago.

The plaintiffs brought this action on April 20, 1971, pursuant to Article IX, Section 17 of the Liquor Control Act (Ill. Rev. Stat., ch. 43, sec. 182,) and allege the petition filed to place the proposition on the ballot did not contain the names of 25% of the legal voters registered in the precinct, as required by Section 2 of Article IX.

The defendants filed a motion to dismiss the complaint, in which they maintained that a petition for the submission of a local option proposition may only be contested prior to election in accordance with Section 4 of Article IX (Ill. Rev. Stat., ch. 43, sec. 169), and the trial court granted the motion.

The issues on appeal are whether the plaintiffs can contest the validity of the proposition petition after the election; whether the City Clerk has standing to contest the validity of the complaint; and whether the motion to dismiss was in proper form.

The plaintiffs contend the requirement that the petition contain the signatures of not less than 25% of the legal voters is jurisdictional and can be raised after the election under Section 17, Article IX of the Liquor Control Act, which authorizes “any five legal voters of tire precinct to contest the validity of such election by filing a verified petition within 10 days after the canvas of the returns of such 6 6 8 .”

However, Section 4 of Article IX explicitly sets forth the manner of contesting the validity of the proposition petition and provides in part as follows:

“Any five legal voters of any political subdivision, district or precinct in which a proposed election is about to be held as provided for in this Act, within any time up to 30 days immediately prior to the date of such proposed election and upon filing a bond for costs, may contest the validity of the petitions for such election by filing a verified petition in the Circuit Court for the county in which the political subdivision, district or precinct is situated, setting forth the grounds for contesting the validity of such petitions.”

In the case of Havlik v. Marcin, (1971), 132 Ill.App.2d 532, 270 N.E.2d 189, the same issue was raised and the court stated:

“Specific portions of a statute take precedence and control in their practical application over more general portions of the same act * * *. In this situation, section 17 is a general statute concerning the field of validity of the election. By contrast section 4 is a specific statute addressed by the legislature to the most particular matter of contesting ‘the validity of the petitions in such election.’ ”

The holding and logic of the Havlik case were approved in the recent case of Zelinka v. City of Chicago, (Ill.App.3d), decided October 5, 1972.

The purpose of Section 4 is evidently to clear up any problem with the proposition petition before the trouble and expense of the election and prevent a challenger from gambling on the outcome of the election.

The plaintiffs contend the City Clerk had no standing to contest tire validity of the complaint despite the express language of Section 17 of the statute, which provides in part:

“Upon the fifing of such petition a summons shall forthwith issue from such court addressed to the city, village, town, township or road district clerk, as the case may be, notifying the clerk of the filing of such petition and directing him to appear before the court on behalf of such political subdivision or precinct * *

According to the plain meaning of the statute, the City Clerk has a duty to appear on behalf of the local political subdivision and defend the action.

Finally, the plaintiffs contend the motion to dismiss was not in proper form in that the motion only set forth conclusions and arguments and did not comply with the requirements for motions with respect to pleadings.

A review of the motion to dismiss shows it correctly stated that a local option referendum petition could only be contested prior to the election according to the requirements of Section 4 of Article IX, and that plaintiffs’ complaint under Section 17 could not be maintained. We find the motion to dismiss was proper in form as well as substance.

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

Affirmed.

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


author: MR. PRESIDING JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie Love, Defendant-Appellant.
    (No. 56862;
    First District (4th Division)
    February 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (Elliott M. Samuels, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robin K. Auld, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

MR. PRESIDING JUSTICE BURMAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leon Harris (Impleaded), Defendant-Appellant.
    (No. 57121;
    First District (4th Division)
    February 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (Fred Shandling, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Terrence McQuigg, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE DIERINGER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Brown, Defendant-Appellant.
    (No. 57342;
    First District (4th Division)
    February 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks and Thaddeus L. Kowalski, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Patricia Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE DIERINGER.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonard Meschino, Defendant-Appellant.
    (Nos. 55671, 55981 cons.;
    First District (3rd Division)
    February 22, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Richard Jolovec, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Michael Miller, Petitioner-Appellant.
    (No. 56739;
    First District (3rd Division)
    February 22, 1973.
    Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Barney Lee Anderson, Defendant-Appellant.
    (No. 56946;
    First District (3rd Division)
    February 22, 1973.

      Robert B. Rosen, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Ronald G. Maimonis, and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

On May 21, 1971, the defendant, Barney Lee Anderson, pled guilty to an indictment charging him with the offenses of murder, aggravated kidnapping, attempted deviate sexual assault, attempted rape and armed robbery. For tire offense of murder he was sentenced to not less than 30 nor more than 95 years; for the offense of aggravated kidnapping he was sentenced to 30 to 95 years; for the offense of attempted deviate sexual assault he was sentenced to 5 to 10 years; for tire offense of attempted rape he was sentenced to 5 to 10 years; and for the offense of armed robbery he was sentenced to 30 to 95 years, with all five sentences to run concurrently. In this appeal the defendant contends that it was error for the trial judge to accept his plea of guilty because he did not make a voluntary and understanding waiver of his right to a jury trial and the trial judge’s admonishments did not comply with Illinois Supreme Court Rule 402. (Ill. Rev. Stat. 1971, ch. 110A, par. 402.) The defendant also argues that the sentence imposed upon him by the trial judge was excessive and should be reduced.

We affirm.

On February 16, 1970, the defendant and a codefendant were charged with the offenses that allegedly occurred on January 28, 1970. Between the date of his indictment and the date of his guilty plea the defendant was given three psychiatric examinations.

In April, 1970, on a defense motion, the defendant was examined by the Behavior Clinic of the circuit court. In June, 1970, the court granted a defense petition that the defendant be given a neurological examination at Mount Sinai Hospital by a private physician. The physician’s report showed no gross evidence of neurological impairment. In April, 1971, the court granted a defense motion to have the defendant examined by the Psychosomatic and Psychiatric Institute, Michael Reese Hospital. The examining physician’s report stated that the defendant, a man of average intelligence, has little self-control and is capable of strong reactions of almost psychotic proportions when under emotional stimulation. These reports were submitted to the trial judge and were made part of the record in this case.

On May 21, 1971, the defendant and his appointed attorney, Mr. Sherman Magidson, appeared before the trial judge and the following colloquy occurred:

“MR. MAGIDSON: I would like, however, your Honor, or I would appreciate it if the case would be passed for ten or fifteen minutes, to have an opportunity to discuss it with my client.
THE COURT: We will pass the case until sometime as you have finished your conference with Barney Anderson.
* # #
[After an interval of time, the following proceedings were had:]
THE CLERK: Barney Anderson.
THE COURT: Barney Anderson, I am advised by your lawyer, Mr. Sherman Magidson, that you wish to waive a jury trial. Is that correct?
MR. ANDERSON: That is correct.
THE COURT: Do you know how many people there are on a jury trial?
MR. ANDERSON: Twelve.
THE COURT: What do these 12 people decide?
MR. ANDERSON: The destiny of human life.
THE COURT: That is correct; whether you are innocent or guilty, is that correct?
MR. ANDERSON: Yes.
THE COURT: Now, knowing that, do you wish to waive your right to a jury trial and submit your case to this Court without a jury?
MR. ANDERSON: Yes.
THE COURT: If you do, you may sign the jury waiver which is being handed to you now by your attorney, Mr. Magidson.
MR. MAGIDSON: May the record show Mr. Anderson signed a jury waiver and we are handing it to tire Court for filing.
THE COURT: Is this your signature?
MR. ANDERSON: Yes.
THE COURT: You signed it on a voluntary basis?
MR. ANDERSON: Yes, sir.
THE COURT: No one threatened you or no one forced you to sign this?
MR. ANDERSON: No, sir.
THE COURT: Thank you very much.
Now, I understand, Mr. Anderson, that you wish to change your plea from not guilty to guilty, in an indictment charging you with murder. Is that true?
MR. ANDERSON: This is true.
THE COURT: You understand on the charge of murder I can sentence you to tire Penitentiary from 14 years to life? You know that?
MR. ANDERSON: I know it’s that way.
THE COURT: You know there is a possibility on a charge of attempted rape that I can send you to the Penitentiary for one year to 14 years, do you understand that?
MR. ANDERSON: Yes, sir.
MR. MAGIDSON: Four to 14 years.
MR. PARRISH: Right.
THE COURT: I’m sorry. Four to 14 years. Thank you, Mr.
Magidson.
You understand on attempted deviate sexual assault I could send you to the Penitentiary for, I believe, it’s one to 14.
Is that correct?
MR. PARRISH: Yes.
THE COURT: Yes, one to 14.
You understand On the aggravated kidnapping I could send you to the Penitentiary for not less than two years or to life, any number of years, on aggravated kidnapping?
You understand on a plea of guilty to armed robbery I can send you to the Penitentiary for not less than two years nor more than life? Do you understand that?
MR. ANDERSON: Yes.
THE COURT: All right. Full well knowing that, do you now enter a plea of guilty on all these charges because, in fact, you are guilty; is that correct?
MR. ANDERSON: Yes, sir.
THE COURT: All right. Now, there have been no promises made to you, other than the possibility that if the factual basis is correct, as presented by the State’s Attorney, and after I hear from yoür lawyer, I may send you to the Penitentiary for not less than 30 years nor more than 95 years? Do you understand that?
Full well knowing that, you entered a plea of guilty. There are no threats being made to you by anyone and no one has used any force upon you to enter that plea; is that correct?
MR. ANDERSON: Yes.
THE COURT: You have entered that plea because, you are, in fact, guilty.”

Immediately after these proceedings the court heard the factual basis for the plea, at which time the State submitted the defendant’s fourteen page confession. The parties stipulated that the defendant’s age was 27 years and a finding of guilty was entered for each offense. A hearing in aggravation and mitigation was conducted after which the defendant was sentenced.

Relying on Boykin v. Alabama (1969), 395 U.S. 238, and Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), the defendant contends that it was error for the trial judge to accept his guilty plea because the trial judge’s admonishments failed, in a number of respects, to comply with the requirements that are set out in the authority he cites. He argues that due to these faulty admonishments his guilty plea was not voluntarily and understandingly made.

Specifically, the defendant afieges that he could not have knowingly waived his right to a jury trial because the trial judge did not specifically inform him that he had a right to trial by jmy.

In order to constitute a proper jury waiver the record must affirmatively show: (1) an expression on the part of the defendant that he desires to reject his right to be tried by a jury, and (2) that he do so understandingly and voluntarily after interrogation by the court. (People v. Gaston (1971), 132 Ill.App.2d 900, 270 N.E.2d 846.) Whether a waiver has been knowingly made depends upon the facts and circumstances of each case. People v. Wesley (1964), 30 Ill.2d 131, 195 N.E.2d 708; People v. Spencer (1969), 115 Ill.App.2d 398, 253 N.E.2d 672.

In light of the thorough questioning conducted by the trial judge that is set out above, and with particular reference to the defendant’s affirmative response to the court’s question, “Now, knowing that, do you wish to waive your right to a jury trial and submit your case to this Court without a jury?”, we find the defendant’s contention that he was not informed of his right to a jury trial to be frivolous.

The defendant next alleges that error was committed when the trial judge failed to admonish him with respect to his right to persist in his plea of not guilty (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a) (3)), his right to confront witnesses against him (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a) (4)) and his right against self-incrimination.

The constitution requires that a plea of guilty be “intelligent and voluntary.” The holding in Boykin states that if a guilty plea is to withstand appellate review, the record must affirmatively disclose that the defendent who pleads guilty enters his plea understandingly and voluntarily. In North Carolina v. Alford (1970), 400 U.S. 25, the court said that the standard of validity of guilty pleas is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.

With the intent to implement the Boykin decision, the Illinois Supreme Court introduced Rule 402 which enumerates certain requirements that the trial judge must substantially comply with before a guilty plea can be accepted. The committee comments to this rule make clear that its purpose is to insure that the guilty plea of the defendant be intelligently and understandingly made. In People v. Mendoza (1971), 48 Ill.2d 371, 270 N.E.2d 30, the court said that the fact that the defendant was not specifically admonished by the court, as to each and every consequence of his plea does not sufficiently demonstrate that he was, in fact, unaware of these consequences. A review of the briefs and record in the instant case indicates that here, as in Mendoza, there is nothing to contradict the voluntary character of the defendant’s plea.

(See, People v. Behning (1972), 5 Ill.App.3d 357, 283 N.E.2d 302.) Supreme Court Rule 402 requires a trial judge to insure that a defendant made, on the record, an intelligent and understanding guilty plea through substantial compliance with the provisions of the rule, but it does not require him to parrot a number of specifically proscribed, formal phrases that would render these constitutional guarantees counterproductive and put in jeopardy the very values they were meant to preserve. We find there was no violation of the rule in the instant case.

The defendant also argues that due to his otherwise good character and the circumstances surrounding the commission of these offenses, the sentence of 30 to 95 years imposed by the trial court is excessive and should be reduced.

A court of review will not disturb the sentence imposed by the trial comt unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is not proportioned to the nature of the offense. People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673; People v. Caldwell (1968), 39 Ill.2d 346, 236 N.E.2d 706.

The facts that gave rise to the indictments in this case, as described by the defendant in his confession, are as follows: After spending the evening drinking, the defendant and a codefendant, Frank Charleston, left Charleston’s home in the defendant’s car in order to steal a small calf with the apparent intention of butchering the animal for their own personal consumption. To facilitate their plan they brought with them a “three pound sledge hammer.”

A short distance from Charlestons house they came upon a woman motorist whose car had run off the road and was stuck in a ditch. The defendant and Charleston stopped and offered to pull the car out for $10. In spite of the fact that she declined their offer, they backed tire womans car onto the road, but immediately pushed it into the ditch on the other side, this time demanding $20 for its removal. She again declined.

Charleston then became angry and struck the woman, tore her clothing off and began to molest- her. The two men then put their victim into the defendant’s car and for the next few hours drove around the north suburban Cook County area. She was continually protesting during this time. As they drove the defendant and Charleston each in turn, at various times, attempted to rape their victim and demanded that she perform deviate sexual acts upon them. Each time she refused they would strike her with their fists and then with the hammer. The molestation and physical violence continued until, reaching a deserted construction site and' deciding they must kill their (now semi-conscious) victim in order to prevent their identification, one of them “hit her with the three pound sledge hammer in the head and then it was all over.” They hid the body and returned to the site of the original abduction.

After taking $41 from the deceased’s purse, they drove her car to the construction site, placed her body in her car, drove it into a ditch and set the vehicle on fire in an attempt to disguise the murder as a traffic accident. In a further effort to hinder their detection, the defendant and Charleston abandoned the defendant’s bloodstained car intending to notify the police that it had been stolen earlier in the evening. Immediately after his arrest the defendant made a voluntary confession which recounted these facts.

In view of these facts, we find that the sentence imposed upon the defendant was not violative of the principles of law we have set out, and, therefore, the sentence will not be reduced.

For tire above reasons we affirm the judgment of the circuit court, of Cook County.

Judgment affirmed.

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


text:
    Bernice Kacinski, Plaintiff-Appellant, v. William Giles, Defendant-Appellee.
    (No. 57398;
    First District (3rd Division)
    February 22, 1973.
    Robert H. Hirsch, of Chicago, for appellant.
    Orner & Wasserman, of Chicago, for appellee.
   PER CURIAM.


author: Mr. JUSTICE McNAMARA.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert White, Defendant-Appellant.
    (No. 57456;
    First District (3rd Division)
    February 22, 1973.

      James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE McNAMARA.


author: Mr JUSTICE ENGLISH

text:
    Luther Redmond, Plaintiff-Appellant, v. The City of Chicago, Defendant-Appellee.
    (Nos. 55523, 55430 cons.;
    First District (5th Division)
    February 23, 1973.
    Arthur S. Gomberg, of Chicago, (Samuel Nineberg, of counsel,) for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan, and Daniel Pascale, Assistant Corporation Counsel, and Thomas R. Mulroy, Jr., Senior Law Student, of counsel,) for appellee.
   Mr JUSTICE ENGLISH

delivered the opinion of the court:

After a non-jury judgment for $3500 in favor of plaintiff, the court allowed defendant’s motion for a new trial, and on petition of plaintiff, we granted leave to appeal.

There is no dispute over the facts of the occurrence in question. On August 4, 1968, at about 2:00 P.M., plaintiff was injured when he fell on a public sidewalk at 4407 South Indiana Avenue in Chicago. He was taken to Cook County Hospital where, after a week in traction, an operation was performed on his left ankle. He remained in the hospital until August 21, 1968. He testified that his fall was caused by a broken sidewalk.

Defendant’s post-trial motion alleged that it was entitled to a judgment in its favor because plaintiff’s statutory notice of the accident had given his address as 4359 South Indiana Avenue, while at some points in his testimony plaintiff said he resided at 4358 South Indiana, thus rendering the notice defective; or, in the alternative, a new trial because there was insufficient evidence to establish either actual or constructive notice to the city of the defective condition in the sidewalk. In granting a new trial, the judge stated that in reviewing the evidence he had found seven references to one address and six to another, so in a new trial he would be giving the city another opportunity to put in evidence of its own as to the correct place of plaintiffs residence.

In plaintiff’s brief it is principally contended that the record adequately supports the correctness of the statutory notice, and thus the judgment was well founded as originally entered.

OPINION

We, too, have reviewed the transcript and find a quite different balance in the number of discrepancies concerning plaintiff’s address, but whatever inconsistencies exist in plaintiff’s own testimony, they are more than outweighed by the clear and precise testimony of James Malone, plaintiff’s employer, who appeared as a witness in plaintiffs behalf.

Plaintiff was a janitor’s helper who had worked with Malone for six to eight years. Plaintiff was not an outstanding witness and was easily confused on cross-examination and by questions from the bench. At the hearing on plaintiff’s motion to reconsider the new trial order, the judge made reference to his inabilities as a witness as well as the possible validity of his claim when he said:

“I asked a question of Mr. Redmond. I aroused the witness two times from sleep, and I asked him a question, and he gave me two answers to my last questions. * * * [R]ut I recognized the peculiarities, the senilities, the illness of the witness, Mr. Redmond. # # If Mr. Redmond has a case, he has a case; but I can’t penalize him because I recognize his own incapability. * * * I realize the man was dozing and was aroused and gave me two different answers to the questions I put to him — but I recognize the degenerated condition of the man and he may have a good case. * °

Malone, on the other hand, gave precise testimony about his long relationship with plaintiff, including repeated consistent references to where they lived. Malone related that he had lived at 4359 South Indiana for 26 years; that plaintiff had had a room in his apartment at that same address for the past six years; that plaintiff had worked for him for eight years; that plaintiff was paid $180 per month and in addition was given room and board in Malone’s apartment at 4359 South Indiana. One of the eight buildings in which Malone works as a janitor, assisted by plaintiff, is located across the street from his apartment at 4358 South Indiana. He testified that plaintiff had only worked at that address and had never lived there.

We believe a review of the entire record discloses that plaintiff at at times confused his place of residence with the building across the street, yet by a clear preponderence of the evidence plaintiff’s place of residence at the time of the injury was shown to have been 4359 South Indiana, as stated in the statutory notice to the city. If the city itself had evidence to the contrary, it had the opportunity to present it, but not having such testimony available, or, if available, not having seen fit to introduce it, defendant’s failure in this regard does not entitle it to a second chance in a new trial.

The granting of a new trial, while discretionary with the trial court, is nevertheless subject to review, and we conclude that in this case there was an abuse of this discretionary authority. See Carter v. Geeseman, 303 Ill.App. 280, 25 N.E.2d 120.

The order of the trial court granting a new trial is reversed and the cause is remanded with directions to reinstate the judgment for $3500 in favor of plaintiff.

Reversed and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Atchwood McGarry, a/k/a Atchwood McGary, Defendant-Appellant.
    (No. 56044;
    First District (5th Division)
    February 23, 1973.

      James J. Doherty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Peter F. Costa, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

The defendant Atchwood McGarry was indicted for the unlawful possession of a narcotic drug, heroin. (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 3.) He filed a pretrial motion to suppress physical evidence which was denied after a hearing. After a bench trial he was found guilty and sentenced to a term of two to four years.

On appeal defendant contends: (1) that the court erred in denying his motion to suppress evidence; (2) that he did not voluntarily and understandingly waive his right to a jury trial; and (3) that since he is a narcotic addict and in need of hospital care, it was cruel and unusual punishment to send him to the penitentiary.

Officers Patrick Crowley and Mark Fulla and the defendant testified at the hearing on the motion to suppress. On February 1, 1970, Crowley and Fulla were assigned to a patrol car together. Their tour of duty began at 3:00 P.M. when they were given descriptions of various persons wanted for committing crimes in the area. One description, that of a man wanted for armed robbery, was a male Negro, 18 to 20 years old, five feet three inches to five feet five inches, 150 pounds, wearing a brown corduroy jacket, dark pants, and not wearing a hat. At about 4:00 P.M. while driving in their patrol car the officers saw the defendant 40 or 50 feet from the car; he was walking toward them. He appeared to fit the description of the man wanted for armed robbery since he was of the same physical stature and wore similar clothing. The officers got out of the car and Fulla, who had been driving, called for the defendant to come over to them. The defendant walked over to the car and was almost within arm’s distance from Fulla when Fulla realized that the defendant was too old to fit the description of the wanted man. (The defendant was 38 years old.) Fulla started to tell the defendant to “forget it” when the defendant lunged at him, pushed him against the car and ran away. The officers chased him for about two or three blocks, finally apprehended him and placed him under arrest. During the chase officer Fulla saw the defendant reach in his pocket, pull out a tinfoil packet and throw it on the ground. Tests revealed that it contained heroin.

The defendant testified that when he approached the squad car an officer said, “Do you have any guns in your house?” Then officer Crowley, who defendant testified was driving the car, told the defendant that his pocket was “bulged” and proceeded to stick his hand into defendant’s pocket and pull out some “dope.” The defendant further testified that he didn’t know if Crowley put the heroin in his pocket but that he had never seen it before.

In denying the motion to suppress, the court made an express finding that it disbelieved the defendant’s testimony.

Before the commencement of the pretrial hearing, defendant’s attorney told the court:

“Let the record reflect that this is a preliminary motion to suppress, the defendant heretofore having filed with the Court and tendered to the Court an executed jury waiver.
I am not sure the record reflects that you [the Court] have admonished him.”

The court did not admonish the defendant as to his right to a jury trial but immediately proceeded to hear testimony on the motion to suppress. Although defendant signed a written jury waiver form on the date of trial, the record shows that at no point during the entire proceedings did the judge admonish the defendant.

After the defendant was found guilty by the court, the following colloquy took place:

“COUNSEL FOR DEFENDANT: Mr. McGarry [the defendant] is there anything else you wish to say?
THE DEFENDANT: I am not guilty, your Honor.
THE COURT: Is there anything else you wish to say?
THE DEFENDANT: I would like to have a jury trial.
THE COURT: You understand that now.”

OPINION

Defendant contends that the motion to suppress should have been granted. He argues that when defendant was initially asked to come over to the squad car, he was illegally detained (see Terry v. Ohio, 392 U.S. 1) and therefore all. the ensuing events, including the recovery of the heroin, were “fruits of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471.

We disagree. As stated in Coates v. United States (D.C. Cir. 1969), 413 F.2d 371, 374 (Burger):

“We have in past cases commented on the duty of every person to cooperate with police and to respond unless a Fifth Amendment claim is involved. It is ‘only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ [Terry v. Ohio] at 19 n. 16, 88 S. Ct. at 1879. In the instant case it would be unrealistic to conclude that a seizure’ had occurred prior to the discovery of the wallet and wrench since neither through physical force nor through a show of authority nor implied restraint had the police impeded Appellant’s liberty.”

There was no illegal police action in the instant case. The officers, in asking the defendant to come over to the squad car, were merely performing their duty; the defendant was of similar stature and wore clothes similar to those of the man wanted for armed robbery. When defendant came closer to officer Fulla, the discrepancy in ages between the defendant and tlie wanted man became apparent and the defendant was told to “forget it.” Thereafter, his own actions in pushing Fulla and running away resulted in the arrest and seizure of the heroin. A similar conclusion was reached under analogous circumstances in People v. Staples, 1 Ill.App.3d 922, 275 N.E.2d 259. See People v. Howlett, 1 Ill. App.3d 906, 910, 911, 274 N.E.2d 885; People v. Lee, 48 Ill.2d 272, 269 N.E.2d 488; United States v. Hines (D.C. Cir. 1972), 455 F.2d 1317, 1323.

Defendant next contends that he did not understandingly, knowingly and expressly waive his right to a jury trial.

In People v. Baker, 126 Ill.App.2d 1, 4-5, 262 N.E.2d 7, it was stated:

“Waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938). There is no precise formula for determining whether a defendant knowingly and understandingly waives his right to a trial by jury. Each case depends on its particular facts. People v. Richardson, 32 Ill.2d 497, 207 N.E.2d 453; People v. Crable, 80 Ill.App.2d 243, 225 N.E.2d 76. The duty rests on the trial judge to see that election by a defendant to waive trial by jury is expressly and understandingly made. People v. Wesley, 30 Ill.2d 131, 195 N.E.2d 708. It is a duty that cannot be perfunctorily discharged. People v. Surgeon, 15 Ill.2d 236, 154 N.E.2d 253.”

In the instant case the only real indication that defendant knowingly, understandingly and expressly waived his right to a jury trial is the fact that he signed a jury waiver form. However, as was stated in People v. Rambo, 123 Ill.App.2d 299, 303, 260 N.E.2d 119:

“A written waiver, as well as an oral waiver, may be an express waiver if it is properly and knowingly made; but signing a printed form has become such a routine formality that a perfunctory signing — without proof that the form was read by the defendant and understood by him — cannot be accepted as a substitute for an express waiver, understanding^ made after careful interrogation by the court.”

We are mindful of the fact that in People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, and subsequent Appellate Court cases (see People v. Davis, 2 Ill.App.3d 106, 276 N.E.2d 134; People v. McClinton, 4 Ill.App.3d 253, 280 N.E.2d 795; and People v. Strompolis, 2 Ill.App.3d 289, 276 N.E.2d 464), it has been held that the waiver of a defendant’s right to a jury trial by his counsel, in the defendant’s presence and with no objection by the defendant, constitutes a valid waiver. However, in the instant case, unlike the cited cases, it affirmatively appears in the record that defense counsel noted that the defendant had not been admonished, yet the court proceeded to hear evidence on the pretrial motion and trial itself without further inquiry. Counsel’s statement and defendant’s request for a jury trial after- the guilty finding and sentencing casts considerable doubt as to whether defendant had been informed of his right to a jury trial.

The admonition in People v. Bell, 104 Ill.App.2d 479, 482, 244 N.E.2d 321, and cited again in Davis at 108, applies well here:

“It takes but a few moments of a trial judge’s time to directly elicit from a defendant a response indicating that he understands that he is entitled to a jury trial, that he understands what a jury trial is, and whether or not he wishes to be tried by the court without a jury. This simple procedure incorporated in the record will reduce the countless contentions raised in the reviewing courts about jury waivers.”

In view of the position we have taken, it becomes unnecessary to address the third issue raised by defendant. Tire judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

ENGLISH and LORENZ, JJ,, concur.


author: Mr. JUSTICE ENGLISH

text:
    Pyramid Enterprises, Inc., Plaintiff-Appellant, v. Ralph and Sally Amadeo, Defendants-Appellees.
    (No. 56897;
    First District (5th Division)
    February 23, 1973.
    Richard S. Hollobow and Barry Kreisler, both of Hollobow, Warren, Taslitz & Grombacher, of Chicago, for appellant.
    No appearance for appellees.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

Judgment in the amount of $226 was confessed against defendants for rent and attorney’s fees under a lease. After service of summons on defendants for confirmation of judgment, pursuant to Ill. Rev. Stat. 1969, ch. 62, par. 82, a trial de novo was held, with defendants filing pro se appearances, and the judgment was confirmed in favor of plaintiff in the sum of $5.05. Plaintiff now appeals from the denial of its post-trial motion for a substantial additur, or, in the alternative, for a new trial. Defendants have not appeared in this court.

Plaintiff presents three issues:

(1) Whether the judgment and damages awarded by the trial court were inadequate and contrary to the evidence;

(2) Whether the judgment and damages awarded by the trial court were inadequate and contrary to the law; and

(3) Whether the trial court erred in failing and refusing to rule as a matter of law that Clause Six of the lease required no showing of necessity regarding amounts proved to have been spent for decorating, repairs, and replacements in the premises, and for brokerage commissions paid for re-rental as a result of defendants’ abandonment of the apartment prior to the termination of the lease.

Defendants signed a lease with plaintiff on July 29, 1970, for the rental of an apartment in Franklin Park, Illinois, for the period from August 1, 1970, through July 31, 1971, at a rental of $190 per month, and with a security deposit of $220. They took possession of the apartment in August, 1970, but abandoned the premises in January, 1971, and paid no rent for any month subsequent to December, 1970.

On March 3, 1971, plaintiff filed a complaint claiming $190 for the unpaid January, 1971 rent and $36 for attorney’s fees, for a total of $226. On the margin of the complaint alongside the itemization of the amounts claimed, the following typewritten notation appears:

"SECURITY DEPOSIT OF $220.00 NOT APPLIED TO RENT BUT TO FOLLOWING ITEMS: Property damage in excess of normal wear and tear — $100.00. RENTAL COMMISSION— $190.00. Additional decorating — $150.00.”

The judgment of $226 was confessed against defendants.

On March 14, 1971, the defendants filed a pro se appearance, and a trial was held on September 2, 1971. Plaintiff’s opening statement explained to the court that it was proceeding under a lease for the collection of one month’s rent, and that the case involved a security deposit of $220 which had already been applied against a larger amount paid out for repair and decorating charges and a commission for re-letting the apartment, such application of the deposit being in accordance with the provisions of the lease.

Plaintiff called defendant Ralph Amadeo as a witness pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, par. 60.) He identified his and his wife’s signatures on the lease which had been introduced into evidence.

The next witness was the president of plaintiff-corporation. He identified an exhibit as a $150 paid bill from the Apartment Maintenance Company which had painted the apartment abandoned by defendants. He then testified that another exhibit was an invoice from a rental agency showing payment by plaintiff of $190 for brokerage commission on re-renting of the apartment.

The defendants’ case consisted of testimony concerning the lack of heat in the apartment of plaintiff’s failure to repair certain items. On rebuttal plaintiff introduced into evidence a number of work orders which set forth the matters specifically complained about by defendants, and showed that plaintiff’s maintenance man had taken care of defendants’ requests.

The court ruled that the judgment for plaintiff would be confirmed in the amount of $5.05 and denied plaintiff’s motion for either a substantial additur or a new trial. We are without any explanation as to how the court arrived at that amount.

The lease in question contained the following provisions relevant to this appeal:

“The SECURITY DEPOSIT may NEVER be used as rent. [Typewritten.]
2. TENANT has deposited with OWNER the security deposit set forth above for the performance of each and every covenant and agreement of this Lease. OWNER shall have the right, but not the obligation, to apply the security deposit in whole or in part in payment of any unpaid rent or other amount due because of an unperformed covenant or agreement by TENANT. * * • On termination of the Lease and full payment of all amounts due and performance of all TENANT’S covenants and agreements * # *, the security deposit or any portion thereof remaining unapplied shall be returned without interest to TENANT. [Printed form.]
6. * * * TENANT shall on demand pay all deficiencies if the rent on reletting is not sufficient to satisfy the rent provided in this Lease and in addition shall pay all expenses of reletting, including decorating, repairs, replacements and brokerage commissions at rates recommended by the Chicago Real Estate Board. [Printed form.]
17. TENANT » * * irrevocably authorizes any attorney * * * to appear for TENANT * * * to waive process, service and trial by jury, to confess judgment in favor of OWNER * * * and against TENANT * * * for any rent and interest due hereunder from TENANT to OWNER and for OWNER’S costs and reasonable attorney’s fees * * *. [Printed form.]”

In his further testimony, Ralph Amadeo admitted that he and his wife had abandoned the apartment without paying the January, 1971 rent, and defendants therefore are liable to plaintiff in the amount of that rental — $190. Paragraph 17 of the lease dictates that defendants are also liable to plaintiff for reasonable costs and attorney’s fees, the $36 claimed for such fees being a reasonable amount. We must assume that the trial judge held defendants liable for this amount of $226, but then reduced it by some undisclosed computations in application of the $220 security deposit held by plaintiff. Although plaintiff’s complaint prayed for reimbursement of one month’s rent and attorney’s fees, the issue of the disposition of the security deposit was raised when plaintiff typed a notation concerning such deposit on the face of the complaint, when plaintiff discussed the deposit during his opening statement, and when plaintiff introduced exhibits into evidence during the trial which related to the subsequent application of that deposit. Since the issue has become part of the record, we will review the question as to whether the $220 security deposit was properly used as a credit against the $226 liability.

Plaintiff argues that inherent in the trial court’s decision that defendants are liable to plaintiff is the basic finding that defendants had violated their lease. Such being the case, plaintiff’s argument continues, it was the duty of the trial judge to determine the amount of damages in the manner provided by the lease. Plaintiff contends that Paragraph 6 of the lease clearly states that the tenant is liable for the expenses of reletting, including decorating, repairs, and a brokerage commission. At the trial, plaintiff introduced into evidence a $150 paid bill for the painting of the apartment and a paid $190 invoice for the brokerage commission, and now relies on Williams v. Matlin, 328 Ill.App. 645, 66 N.E.2d 719, in arguing that proof of the payment of these bills is prima facie evidence that the amounts paid were reasonable for the services rendered. Plaintiff contends further that the uncontradicted evidence of the payment of these two bills was sufficient reason for it to have retained the entire amount of the security deposit, and that the reduction of the original judgment of $226 for any reason relating to the security deposit was, under the circumstances, contrary to both the evidence and the law.

We agree with plaintiff that according to paragraph 6 of the lease, $190 of the $220 security deposit was properly applied to the brokerage commission, and that any reduction of the original judgment to compensate for this $190 charge was, indeed, contrary to the law and the evidence. As to the decorating and repairs, however, we find that the security deposit was not properly applicable, and any reduction for the remainder of the security deposit would be improper. We do not argue with the fact that the work was done or that the amounts paid for such repairs and decorating were reasonable, but we do question the fact that defendants are being held accountable for decorating and repairs for which there was no proof of necessity.

Plaintiff argues that the trial court erred when it interpreted the lease as containing a requirement for a showing of “necessity.” We find no error in such an interpretation. When a tenant vacates an apartment, be it at the termination of the lease or an abandonment before the end of the lease, he is required only to leave the premises in the same condition as they were when he first took possession. (See Streeter v. Streeter, 43 Ill. 155, 160-161.) If the premises are not left in that condition, normal wear and tear excepted, then the landlord has the right to hold the tenant liable for the costs of returning the premises to such condition so that they may be re-let.

From the evidence at the trial, there was no way for the court to know whether the painting had been done as a necessary prerequisite to re-letting the apartment or whether it was an improvement unnecessary so far as conduct of defendants is concerned. We believe that a landlord should not be allowed to benefit from a tenant’s abandonment by decorating and repairing an apartment at the tenant’s expense without first proving that the tenant had made such expense necessary.

Since there was no proof of the necessity of the decorating and repairs, the only use to which the security deposit can be applied is the brokerage commission. The $190 brokerage fee subtracted from the $220 security deposit leaves $30 remaining unapplied which should be returned to defendants. However, since defendants are liable to plaintiff in the amount of $226 for one month’s rent and attorney’s fees, the $30 should be used as a credit to plaintiff, thus producing an appropriate final judgment in the amount of $196.

We are aware of the typewritten clause in the lease, “The SECURITY DEPOSIT may NEVER be used as rent,” which takes precedence over the printed clause, “OWNER shall have the right, but not the obligation, to apply the security deposit in whole or in part in payment of any unpaid rent * * However, although a $30 portion of the security deposit is being credited to a $226 judgment based on rent, the judgment is also based on a $36 claim for attorney’s fees. As long as more than $30 of the judgment can be attributed to an obligation other than rent, that clause of the lease would not be violated.

The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded with directions to enter judgment in favor of plaintiff in the amount of $196.

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

DRUCKER, P. J., and LORENZ, J., concur.