author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dembrus Golson, Defendant-Appellant.
    Gen. No. 50,251.
    First District, Fourth Division.
    September 13, 1966.

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

delivered the opinion of the court.

Charge

Burglary.

Judgment

After a trial without a jury, the court found defendant guilty and sentenced him to a term of twelve to fifteen years.

Points Raised on Appeal

(1) The indictment was fatally defective.

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

(3) The court erred in denying defendant’s request to examine certain police reports.

Evidence on Behalf of the State

Sarah Dickerson

When she left her apartment (1651 E. 67th Street, Chicago) at about 7:00 a. m. on June 5, 1963, she locked both front and back doors, and propped an iron bar against the back door. The drawers in the kitchen were closed. When she returned about 2:00 p. m. she found the glass in the back door broken, the bar removed from its place, and the kitchen drawers open.

Carl Dickerson

He was the fourteen-year-old son of Sarah. When he left for school at about 8:15 a. m. both front and back doors were locked. When he returned about noon he saw the front door wide open. He went into the kitchen and saw that the back door was also open, the glass was broken, and the iron bar, normally propped against the door, was lying on the floor between the living room and kitchen. He went into the living, room and placed a phone call to inform his mother of the situation. While he was waiting for her to answer, he saw a man in a blue jersey and black leather cap standing in the doorway of the kitchen, a distance of six or ten feet from where he was standing. Carl was frightened. He dropped the phone and ran out the front door and down the street until he found a policeman and reported what he had seen. The policeman was walking with Carl back to his home but when the two arrived at the front courtway of the building Carl saw the man he had seen in the apartment 3 or 4 minutes earlier, and the policeman arrested him. The man was still wearing the blue jersey and black leather cap he had worn when Carl first saw him in the apartment. Carl identified defendant in open court as the man whom he had seen standing in the kitchen doorway.

Nelson Mainor, a Police Officer

At about 12:15 p. m. on June 5, 1963, he was cruising the neighborhood on an investigation when Carl Dickerson came up to him in an alley and they had a conversation. He thereupon followed young Dickerson to his address, observed defendant coming out of the courtway, and, on the boy’s identification, placed defendant under arrest. A search of his person revealed a screwdriver in his pocket and there were specks of glass dust in his pants cuffs.

On cross-examination Mainor testified that Dickerson told him in the alley that a man had broken into his home and was still there. They had gone only twenty feet from where Dickerson first contacted him when they saw defendant coming out of the courtway. He was not on the street.

Alex Wrubleski, a Police Detective

He questioned defendant at the police station. Defendant denied entering the Dickerson apartment, claiming that he was at that address visiting a friend.

On cross-examination Wrubleski testified that Officer Mainor told him that young Dickerson had given him a description of the man alleged to have been in the apartment and that they made a search of the neighborhood prior to the arrest. Wrubleski also had a conversation with the Dickerson boy.

Evidence on Behalf of Defendant

Dembrus Golson, defendant

He had been with Willie Mae Turner, a landlady for whom he worked on occasion, until five or ten minutes past noon on the date of the occurrence. When he left her, he was walking east on 67th Street when a kid almost ran into him and a policeman arrested him. He denied that he ever came out of the courtway at the Dickerson address, but claimed that he was merely walking along the street at the time of the arrest.

Willie Mae Turner

Defendant worked occasionally as a maintenance man for her building which was located in the neighborhood of the Dickerson home. He carries a screw driver and other tools on his person for reasons connected with his maintenance job. Defendant had been with her from 10:00 a. m. until shortly after noon on June 5, 1963.

Opinion

(1) In defendant’s brief he contends that the indictment was fatally defective for describing the burglarized premises only as the dwelling house of Sarah Dickerson in Cook County, without specifying the street address. This point has since been decided adversely to defendant’s argument. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97; People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323 affirmed, 34 Ill2d 179, 214 NE2d 765.

(2) We consider that the record contains ample evidence which, if believed, establishes defendant’s guilt beyond a reasonable doubt. The credibility of the witnesses is essentially a matter for the trial court.

Defendant contends that the Dickerson boy’s identification testimony must be discredited because he did not have sufficient opportunity to see defendant in the apartment. We do not agree. In our opinion the evidence discloses adequate opportunity to observe.

(3) In the course of the trial defense counsel moved to be furnished with a copy of a statement allegedly given to the police by Carl Dickerson. His motion was not granted, and he now argues, on the basis of People v. Moses, 11 Ill2d 84, 142 NE2d 1, and other cases in that line, that this constitutes reversible error. We think not.

The stated objective of the motion was impeachment of the testimony of Dickerson as to what he had done between the time he ran out of the house and the time when defendant was arrested. The question first came up on cross-examination of Dickerson in this fashion:

Defense Counsel:

Did you make a statement to the police or to the State’s Attorney?

The Court:

. . .You can ask them if they have a statement.

Defense Counsel:

Can I have that statement, please ?

State’s Attorney:

There is no statement.

Defense Counsel:

Your Honor, at this time I am moving for a copy of that statement.

State’s Attorney: The Court:

He did not make a statement. You haven’t asked him that.

Defense Counsel:

Did you make a statement, an oral statement to the police?

Witness:

He was asking me questions about how I came from school and all that.

Defense Counsel:

Concerning about what happened after you saw the man in your house and what you did?

Witness:

Yes, sir.

Defense Counsel:

Did you ever sign that statement?

Witness:

No, sir.

Defense Counsel:

You just told it to him by way of mouth, is that correct?

Witness:

Yes, sir.

These excerpts from the record convince us that denial of defendant’s request was not offensive to the principles developed in Moses. The sequel to Moses, People v. Wolff, 19 Ill2d 318, 167 NE2d 197, held that it is error for the trial judge to preclude defense counsel from asking questions for the purpose of proving the existence of the desired document. In the instant case, however, defense counsel was permitted to ask the Dickerson boy whether the latter had ever signed a written statement. The reply was in the negative. In addition, defense counsel was permitted to ask the State’s Attorney whether there was a written statement by the Dickerson boy. Again, there was a negative response. We find here no undue restriction on cross-examination, the only suggestion of the existence of a written statement being found in the conjecture of defense counsel. We consider this case to be distinguishable from People v. Edmonds, 30 Ill2d 538, 198 NE2d 313, where there was limitation of examination to determine the existence of a statement, and People v. Wright, 30 Ill2d 519, 198 NE2d 316 and People v. Cole, 30 Ill2d 375, 196 NE2d 691, where the existence of a statement was undisputed. Rathe, we consider it in accord with People v. Miller, (First Dist., Nos. 49965, 50145). See also Johnston v. United States, 260 F2d 345, cert den 360 US 935.

Later in the trial, during cross-examination of Officer Wrubleski, defense counsel was furnished with a copy of the police report which had been prepared by the witness. He offered a part, but not all, of the report in evidence, and when this was denied he withdrew the offer. At this point, defense counsel attempted to elicit specific testimony from Wrubleski as to something which young Dickerson might have stated to him on the date of the occurrence, again for the avowed purpose of impeaching Dickerson. The court correctly sustained objection to this questioning on the ground that there was no foundation in the record to establish this particular impeachment of Dickerson, and defense counsel was unable to satisfy the court that any such foundation could be furnished.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1961), ch 38. § 19-1. Burglary
      (a) A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, ... or any part thereof, with intent to commit therein a felony or theft.


source: Caselaw Access Project

author: GOLDENHERSH, P. J. PER CURIAM:

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Carroll, Defendant-Appellant.
    Gen. No. 10,723.
    Fourth District.
    September 26, 1966.
    Supplemental opinion November 17,1966.

      J. H. Weiner, and Londrigan & Londrigan, of Springfield (Thomas F. Londrigan, of counsel), for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for appellee.
   GOLDENHERSH, P. J.

Defendant, Edward Carroll, appeals from the order of the Circuit Court of Macon County, wherein the court revoked his probation, and imposed sentence of not less than one, nor more than five years in the penitentiary.

On February 11,1963, defendant, then 19 years of age, pleaded guilty to the charge of theft from the person (c 38, § 16-1, Ill Rev Stats 1961). On March f, 1963, defendant was admitted to probation for a period of three years. The order, inter alia, provided that defendant was to serve six months in the Illinois State Farm, and upon his release, was to be at his place of residence between 11:00 p. m. and sunrise, was not to associate with anyone having a known criminal record, use intoxicating liquors, or drive a motor vehicle without permission of the probation officer. On January 24, 1964, the probation officer granted defendant permission to drive an automobile in connection with his employment, and specifically informed him that he was not permitted “to drive a car for pleasure purposes.”

On November 15, 1965, the probation officer for the Circuit Court of Macon County filed a “Report of Violation of Probation” in which it is charged that defendant violated the terms and conditions of his probation in that on September 13, 1965, he was in illegal possession of liquor in the car he was driving, was outside his residence after 11:00 p. m., drove a motor vehicle for pleasure purposes, and associated with one Joe Burcham, formerly on probation, after his having been convicted along with defendant, of the offense of theft from the person.

A warrant was issued for defendant’s arrest, he appeared, was admitted to bail, and the matter was set for hearing on November 30, 1965. The evidence shows that defendant was in his automobile on September 13, 1965, in the company of Joe Burcham and two other men, that there was beer in the car, and that defendant was out later than 11:00 p. m. The testimony as to who was driving the car when it was involved in an accident is in conflict, but it is admitted that defendant drove it at least the distance required to remove it from the bridge on which the accident occurred.

Defendant contends that the evidence does not sustain the trial court’s findings that he violated the terms of his probation. A violation of the terms and conditions of probation must be proved by a preponderance of the evidence. People v. Madden, 56 Ill App2d 196, 205 NE2d 653. The People v. Bolger, 359 Ill 58, 194 NE 225, in reviewing a case in which The People were required to prove guilt beyond a reasonable doubt, the Supreme Court, at page 68 said: “The trial judge who heard the case saw and heard the witnesses testify. He had the opportunity to observe their conduct and demeanor while testifying and was in a better position to weigh their testimony than is a reviewing court. The law has committed to the jury, or to the trial court where a cause is tried by the court, the determination of the credibility of the witnesses and of the weight to be accorded to their testimony, and where the evidence is merely conflicting this court will not substitute its judgment for that of the jury or the trial court.” Applying this rule to this case, in which The People bore a lesser burden, we cannot say that the evidence did not prove the violations charged by a preponderance of the evidence.

Defendant contends that the circuit court abused its discretion in revoking probation. The circuit court is authorized to impose reasonable conditions (c 38, § 117-3, Ill Rev Stats 1965) of probation and a revocation based on a finding that defendant had violated four of the conditions fixed by the court, was not an abuse of discretion.

Defendant contends that the sentence imposed is too severe and urges that this court should order it reduced as authorized by the provisions of ch 38, § 121-9 (b) (4), Ill Rev Stats 1965.

The determination of the proper penalty to impose upon a convicted offender presents one of the most difficult problems with which the trial bench is confronted. The ideal sentence is one which adequately punishes the offender for his misconduct, safeguards the public from further offenses, and reforms and rehabilitates the offender into a useful member of society. To the end that the trial court be possessed of pertinent information regarding the defendant, the General Assembly enacted ch 38 § 1-7 (g), Ill Rev Stats 1965, which provides for a presentence hearing in mitigation and aggravation. Rule 461 of the Tentative Pinal Draft of Illinois Supreme Court Rules provides, “In all cases in which the defendant may be sentenced to the penitentiary, the trial court is required to hold a hearing in mitigation and aggravation in accordance with the provisions of section 1-7 (g) of the Criminal Code of 1961. The trial judge shall advise the defendant of his right to present evidence in mitigation. A stenographic transcript of the judge’s advice to the defendant and the defendant’s answers, if any, shall be filed and shall be a part of the common law record.”

Judges, trial and appellate, are subject to human failings, and many proposals have been made to insure, to the extent possible, that criminal sentences be determined and imposed dispassionately and objectively, after a review of, and reflection upon, the maximum amount of information regarding the defendant. It has been suggested that a panel of judges, who did not participate in the preconviction proceedings, review the record and determine the sentence. It has been recommended that a reasonable period of time elapse between conviction and sentence, in order that the trial judge, in imposing punishment, might not be influenced by some evidence or occurrence which to him, may have been unpleasant or revolting.

The order for probation imposed a number of restrictions on defendant’s conduct and required him to report to the probation officer once every two weeks. There is no evidence of any violation for a period of two and one-half years and the four violations from which the revocation arises occurred in one evening. The transcript of the evidence taken at the hearing shows that the trial judge was understandably irate because of the obvious falsity of the testimony of Joe Burcham, one of defendant’s witnesses. The testimony of the probation officer is based upon his conversations with the other occupants of defendant’s automobile and does not show any admissions or misrepresentations made by the defendant.

The only evidence that defendant drove the car, other than to back it off the bridge where the mishap occurred, is the testimony of a deputy sheriff who testified that defendant told him he was driving at the time. The only evidence to the effect that defendant drank beer is the testimony of the same deputy, who testified that he smelled beer on defendant’s breath.

In summing up the evidence, prior to announcing his decision, the trial court said, “I am not about to make a finding that the deputy sheriff who was straightforward and told his version of what happened was lying on the witness stand as against Mr. Burcham was telling the truth. One of them was lying. As a trier of the fact there is no question in my mind whatsoever who the liar is. Mr. Burcham has revealed on the witness stand he was a liar. He admitted he lied to Mr. Hoendorf. I don’t think he did at that time. He did today under oath. He also tried to lie to the Court on the witness stand about his conviction. Mr. Burcham, in anybody’s language, is a liar. I recall the 1st day of March when we discharged him from probation and I congratulated him on the fact with the idea he had become rehabilitated. It is obvious to the Court that he is still a liar.

«

“My finding is that he has violated the terms of his probation; that it should be terminated. I would be more inclined to treat this as matters that do not require imposition of sentence if I hadn’t been confronted with the stories that were presented here in behalf of the defendant, which I think — and particularly I am referring to Mr. Burcham — they are a matter of prevarications. So I am going to terminate his probation.”

The witness, Burcham, to whom the court refers, was a codefendant with the defendant in the case in which defendant was admitted to probation. The record shows that Burcham completed a period of probation and was discharged. It is defendant’s association with him that supports the charge that defendant associated with one having a known criminal record.

In discussing the provisions of ch 38, § 121-9 (b) (4), Ill Rev Stats 1963, in the People v. Taylor, 33 Ill2d 417, 211 NE2d 673, at page 424, the Supreme Court said: “We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill Rev Stats 1963, c 38, par 121-9 (b) (4)), such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

The Appellate Court of Illinois has invoked the power to reduce sentences in the following cases: People v. Campbell, 49 Ill App2d 269, 200 NE2d 72; People v. Cage, 58 Ill App2d 262, 207 NE2d 732; People v. Freeman, 49 Ill App2d 464, 200 NE2d 146, and People v. Steg, 69 Ill App2d 188, 215 NE2d 854. In Freeman, the defendant, after revocation of probation was sentenced to serve not less than 10 nor more than 20 years. The Appellate Court reduced the sentence, giving as its reason that the boys with whom the defendant was convicted had received substantially lesser sentences. In People v. Steg, the Appellate Court reduced the sentences of the appellants to conform to that imposed upon a codefendant. In so doing, the court at page 856 (215 NE2d 854), said: “Where there is no basis either in the records of the individuals involved or in the nature of the participation of such individuals in the crime which would justify a more severe sentence as to one of equal participants in such criminal venture, a sentence which arbitrarily imposes a greater punishment or penalty upon one or more of the individuals than another should not be approved.”

It is obvious from the statement of the trial court that his displeasure with Burcham was a factor in the revocation of probation and the imposition of sentence. Burcham, a codefendant in the original proceeding, who admittedly lied to the probation officer, suffered no penalty, and his misconduct contributed to the court’s decision as to what punishment was to be meted out to defendant. In our opinion, there is at least as much basis for the reduction of sentence here as is found in either Steg or Freeman. We invoke the power conferred upon this court by the provisions of section 121-9 (b) (4) and reduce the sentence to not less than one year and not more than one year and one day.

Lastly, we consider defendant’s contention that under the provisions of c 38, § 119-3, Ill Rev Stats 1965, defendant must be given credit for two periods of incarceration.

Defendant was received at the Illinois State Farm at Vandalia on March 7, 1963, and on March 19, 1963, by administrative order of the Department of Safety, was transferred to the Illinois State Penitentiary, Menard Branch, where he was confined until discharged on September 1, 1963. Defendant was also confined in the Illinois State Penitentiary, Joliet Branch, from December 3, 1965, until December 23, 1965, when, by order of this court, he was admitted to bail. Although not clear in the record, it appears probable that defendant, between the dates of March 1 and March 7, 1963, and November 30 and December 3, 1965, was in the Macon County Jail, awaiting delivery to the State penal institutions.

Prior to the enactment of the Code of Criminal Procedures of 1963, provisions for sentence credit were included in c 38, §§ 754(b) and 803(b), Ill Rev Stats 1961. These sections are specifically repealed by c 38, § 126-1, Ill Rev Stats 1963. Regretfully, we cannot interpret these sections as entitling defendant to credit for the periods of confinement in the State Farm at Vandalia and the penitentiary at Menard. Defendant, however,- is clearly entitled to credit for the periods during which he was in custody between the dates of March 1 and March 7, 1963, and between the dates of November 30 and December 23,1965.

As above stated, defendant, while confined at Vandalia as a condition of probation, was, by administrative order, transferred to the penitentiary at Menard. We assume that the transfer was effected by the Director of Public Safety under the authority of c 118, § 15, Ill Rev Stats 1965, which provides: “Whenever in the judgment of the Director of Public Safety it becomes necessary for the best interests of the administration of the Illinois State Farm, or to relieve crowded conditions therein, any person committed or sentenced thereto may be transferred by the order of the Director to any institution of the Illinois State Penitentiary system for the balance of the commitment or sentence. Any person so transferred shall not by reason of such transfer be, for any purpose, deemed a felon and shall not be classified as a felon but shall be classified as a transferee from the Illinois State Farm at Vandalia.”

Although this provision was held to be valid in People ex rel. Latimer v. Randolph, 13 Ill2d 552, 150 NE2d 603, we question the propriety of the transfer of a probationer confined at Vandalia as a condition of probation.

Chapter 38, § 117-2 (b) (1), Ill Rev Stats 1965, provides that a probationer, as a condition of probation may be: “Imprisoned in a place of confinement other than a penitentiary for a period not to exceed one year and in no event to exceed the maximum penalty provided for the offense.” (Emphasis ours.)

In our opinion, this incongruity is a subject which merits consideration by the Annual Judicial Conference.

For the reasons herein stated the judgment and sentence of the Circuit Court of Macon County are modified to provide that the sentence imposed on defendant be reduced to provide for confinement in the Illinois State Penitentiary for a period of not less than one year nor more than one year and one day, and subject to the condition that defendant be given credit for the periods of incarceration between the dates of March 1 and March 7, 1963, and between the dates of November 30 and December 23, 1965. As so modified, the judgment of the Circuit Court of Macon County is affirmed and the cause remanded with directions that a mittimus issue in conformance with this opinion.

Judgment modified and affirmed and cause remanded with directions.

EBERSPACHER and MORAN, JJ., concur.

Supplemental Opinion Upon Rehearing

PER CURIAM:

We have allowed defendant’s petition for rehearing, to review his contention that we erred in holding that defendant could not be given credit for the period of incarceration commencing on March 7, 1963, and terminating with his release from Menard on September 1, 1963.

We have considered the case of People ex rel. Gregory v. Pate, 31 Ill2d 592, 203 NE2d 425, and in view of the Supreme Court’s holding that the provisions of section 119-3 of the Code of Criminal Procedure (c 38, § 119-3, Ill Rev Stats 1965) apply retroactively, we conclude that we erred in our prior holding, and defendant is entitled to credit for the entire period of incarceration between the dates of March 1, 1963, and September 1, 1963.

We have also reconsidered our prior order, wherein we reduced the sentence imposed upon defendant to not less than one year, nor more than one year and one day. Since filing the original opinion in this case, we have been given the opportunity to examine excerpts from an article prepared for publication in the Fall Issue of the University of Illinois Law Forum by Honorable James C. Craven of the Appellate Court for the Fourth District, and the writings and opinions therein discussed. We conclude that the imposition of a sentence which, in effect, makes the parole eligibility date the same as the release date is violative of the spirit and intent of the statutory provisions for indeterminate sentences.

If a reasonable spread is provided between the minimum and maximum sentence, the Parole and Pardon Board is in a better position to persuade a prisoner to obey institutional rules of conduct, and to participate in education and rehabilitation programs, and in the event of release prior to service of the maximum sentence, can exercise parole supervision. We conclude, therefore, that we erred in modifying the sentence in the manner set out in the original opinion, and deem it advisable to modify the sentence to not less than one year, and not more than one year and 180 days.

For the reasons herein stated, the judgment and sentence of the Circuit Court of Macon County are modified to provide that the sentence imposed on defendant be reduced to provide for confinement in the Illinois State Penitentiary for a period of not less than one year nor more than one year and 180 days, and subject to the condition that defendant be given credit for the periods of incarceration between the dates of March 1 and September 1, 1963, and between the dates of November 30 and December 23, 1965. As so modified, the judgment of the Circuit Court of Macon County is affirmed and the cause remanded with directions that a mittimus issue in conformance with this opinion.

Judgment modified and affirmed and cause remanded with directions.

       On October 18, 1965, defendant pleaded guilty to the charge of illegal possession of liquor (c 43, § 140, Ill Rev Stats 1963), and was fined.


author: PER CURIAM.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joe Nathan Jones, Defendant-Appellant.
    Gen. No. 66-11.
    Fifth District.
    October 20, 1966.
    James W. McRoberts, Jr., of East St. Louis, for appellant.
    John M. Earns, Jr., State’s Attorney, of Belleville, for appellee.
   PER CURIAM.

Defendant filed pro se, and this court allowed, a petition for leave to appeal from the judgment of the Circuit Court of St. Clair County entered upon defendant’s plea of guilty to the offense of theft of property having a value exceeding One Hundred Fifty ($150) Dollars. (C 38, sec 16-1, Ill Rev Stats 1965).

Upon allowance of the petition, the court appointed counsel to represent the defendant. Counsel was advised by the defendant that defendant was of the opinion that the indictment charging the offense was fatally defective. Defendant also contends that some unspecified irregularity in connection with his arrest nullifies the charges and renders invalid this proceeding.

Appointed counsel has filed a motion for leave to withdraw and in support thereof has filed an affidavit stating that he has examined the trial court record and the authorities pertinent to the matters of which defendant complains, and finds no grounds for reversal.

We have examined the indictment, and in view of the holdings of People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, and People v. Graves, 331 Ill 268, 162 NE 839, defendant’s contentions as to sufficiency of the indictment are wholly without merit. As to the circumstances surrounding defendant’s arrest, defendant’s testimony during the hearing on mitigation and aggravation shows that he was apprehended while loading the stolen property into a truck. Nothing appears of record which indicates that the arrest was in any manner violative of the provisions of article 107 of the Code of Criminal Procedure of 1963. (C 38, article 107, Ill Rev Stats 1965).

The transcript of proceedings in the trial court shows that on March 18, 1965, defendant appeared for arraignment, was given a copy of the indictment with a list of witnesses endorsed thereon, and a list of witnesses before whom he allegedly made an oral statement regarding his participation in the crime. Defendant advised the court that he expected to employ counsel, but the court nevertheless appointed counsel, and instructed the defendant that if he succeeded in employment of counsel to so inform the appointed attorneys, who would then be permitted to withdraw. The defendant entered a plea of not guilty and the case was set for trial.

On the trial date, defendant appeared with employed counsel, withdrew his plea of not guilty and entered a plea of guilty. The transcript shows that defendant acknowledged that his attorney had advised him of his rights and the consequences of the plea of guilty. The court advised him that he was entitled to representation by counsel, to trial by jury, confrontation by the witnesses, and that he could be convicted only upon the unanimous verdict of twelve jurors. The court further advised him that he could be sentenced to the Illinois State Penitentiary for a term of not less than one nor more than ten years, and that the court could fix the minimum and maximum terms. After this admonition, defendant persisted in his plea of guilty, and the court, after adjudging him guilty of the offense charged, fixed a date for hearing testimony in aggravation and mitigation.

Under the circumstances presented in this record, the court will allow counsel’s motion for leave to withdraw. The court will not burden other uncompensated counsel with a review of the record. The transcript of the proceedings shows that defendant, represented by employed counsel, after a full explanation of his constitutional rights, and cognizant of the penalty which might be imposed as the result of his plea of guilty, pleaded guilty and persisted in the plea. Upon examination of the evidence offered in aggravation and mitigation, we conclude that the sentence imposed is not unduly severe.

The court thanks appointed counsel for the excellent review of the record and the citation of the pertinent authorities. Counsel is given leave to withdraw and the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    County Board of School Trustees of Marshall County, Illinois, Community Unit School District No. 2, Marshall County, Illinois, Community Unit School District No. 4, Marshall County, Illinois, and C. W. Swanson, County Superintendent of Schools of Marshall County, Illinois, Plaintiffs-Appellees, v. Delbert Shirley, et al., and Dale Moore, County Superintendent of Schools of Woodford County, Illinois, Defendants-Appellants.
    Gen. No. 65-75. (Abstract of Decision.)
    Third District.
    October 24, 1966.
    Isadore I. Leiken, of Minonk, C. B. Ullriek, of Peoria, and B. H. Huschen, State’s Attorney, of Eureka, for appellants; Black, Black & Borden, of Peoria, for appellees.
   Opinion by JUSTICE STOUDER. Not to be published in full.


text:
    William E. McCormick, Plaintiff-Appellant, v. Russell Piper, Defendant-Appellee.
    Gen. No. 65-81. (Abstract of Decision.)
    Third District.
    October 25, 1966.
    Stewart R. Winstein, of Rock Island, for appellant; John Patton, of Moline, for appellee.
   Opinion by JUSTICE STOUDER. Not to be published in full.


author: EBERSPACHER, J.

text:
    Odis Garmon, Defendant-Appellant, v. People of the State of Illinois, Plaintiff-Appellee.
    Gen. No. 66-84.
    Fifth District.
    October 25, 1966.

      Henry A. Schwarz, of O’Fallon, for appellant.
    William G. Clark, Attorney General of the State of Illinois, of Springfield, John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville, and Harold M. Jennings, Assistant State’s Attorney, for appellee.
   EBERSPACHER, J.

This is an appeal by the defendant, Odis Garmon, who was found and adjudged guilty of the crime of murder and sentenced to a term of years not less than 199 nor more than 200 in the penitentiary. The appeal was originally filed in the Illinois Supreme Court and transferred therefrom to this court on Order of the Illinois Supreme Court finding that the issues raised by defendant-appellant’s brief present no constitutional question.

Defendant sets forth two grounds for reversal, namely: (1) that the evidence presented was insufficient to justify a finding of guilty on the crime of murder in that it was insufficient as to the proof of the cause of death, and (2) that the People did not prove the age of the defendant by sufficient evidence as to justify the jury’s finding of defendant’s age.

Defendant’s first contention is based on the alleged inadequacy of the testimony of the coroner, a medical doctor, who was not qualified as an expert, as to the cause of the death of the victim, Vida Burns. At no time were objections made to the qualifications of the coroner, nor was any motion made to strike his testimony.

The People presented uncontradicted evidence, that the defendant and the decedent victim entered People’s witness Willis’ taxicab on a clear day around 11:30 o’clock in the forenoon, and that while riding in the cab an argument between defendant and decedent broke out, during which time decedent was weeping; that during the argument defendant stated that he was going to kill her and pulled a knife from his clothing and commenced to saw and cut on decedent’s neck, causing lacerations and cuts on the neck, and that “blood was running all down on her sweater and on her clothes.” Willis further testified that when he saw the knife, and saw what defendant was doing he pulled to the curb, got out of the car and called his dispatcher over the cab mike and reported the incident, whereupon defendant left the cab.

A police officer testified that in response to a call at approximately 11:27 a. m. he immediately proceeded to the spot at which the crime had occurred, spent about fifteen minutes searching for defendant and then proceeded to the hospital where he saw the decedent, whom he recognized, on the operating table, with her throat cut and being administered to.

The coroner testified that the decedent died at about 5:50 p. m. on the date of the crime, in surgery, and that he was not present at the time of surgery, but first saw the body the following morning. At that time, he removed the sutures which had been placed in the neck to determine the depth of the neck wounds, one of which was about six inches long and the other about two inches long, and that he concluded that decedent died as a result of hemorrhaging from the lacerations on the neck. On cross-examination, he testified that the body bore the marks resulting from an incision of the chest where the surgeon had done open heart resuscitation arid a small incision in the neck, where a tracheotomy tube had been inserted into the larynx, and that neither increased the loss of blood. He further testified that he was not of the opinion that the neck wounds were made by the surgeon’s knife, and that although he did not make a dissection to determine exactly which vessels were cut, he concluded from the depth of the neck wounds that the external jugular had been cut, but that the carotid artery lying deeper was not.

No evidence was offered nor does the record suggest that any supervening act disconnected from the original criminal agency was the cause of death. In People v. Meyers, 392 Ill 355, 64 NE2d 531 at page 533, the court stated that :

“The law is that when the state has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears death was caused by supervening act disconnected from any act of the defendant.”

See also, People v. Reader, 26 Ill2d 210, 186 NE2d 298, wherein the court held that the facts proved were such that would warrant a jury in believing beyond a reasonable doubt that the gunshot wound was the cause of death and that the subsequent pneumonia which arose several days prior to death in the hospital was merely a condition which would often follow hospitalization due to such a gunshot wound.

Here the evidence shows beyond a reasonable doubt that an illegal act was committed by the defendant, which would normally, in the natural course of events, result in death. This was supported by the testimony of the coroner, and when it was proved that the victim died under the circumstances here present, the People had proved the corpus delicti beyond a reasonable doubt. We have examined the cases cited by defendant in which it was held that the proof as to the cause of death was insufficient. Our examination of those cases leads us to the conclusion that the factual situation in those cases bears no similarity to those of this case. In those cases the relationship between the criminal agency and the cause of death was left largely to inference and speculation, and the criminal act was not of such nature as would normally cause death.

In support of his second contention defendant contends that age of the defendant, is a necessary element of the corpus delicti, and that it cannot be proved by an extrajudicial verbal confession or admission alone. Here the jury found the defendant was “about the age of 41 years.” A police officer testified that when defendant surrendered himself to him, he asked defendant his age and defendant gave his age as 41, and subsequently that defendant made and signed a statement in his presence in which he gave his age as 41. Defendant has cited numerous cases on this point, all but one of which discuss the issue of defendant’s age in relationship to the crimes of rape or statutory rape, where age is specifically made a material element of the crime by statute. The other case cited by defendant, People v. Davis, 358 Ill 617, 193 NE 535, held that in a prosecution for receiving stolen property, the corpus delicti could not be proven by the confession of the defendant alone, and age of the defendant was not mentioned.

The corpus delicti or essential elements of the crime of murder are the fact of death, and the fact that the death was produced by the criminal agency of some person. People v. Bentley, 357 Ill 82, 192 NE 230; People v. Hanson, 359 Ill 266,194 NE 520.

Our Supreme Court, reviewing a conviction in which the defendant was charged with assault with intent to murder, in People v. Cavaness, 21 Ill2d 46, 171 NE2d 56, at page 52 said :

“. . . . we do not think that his exact age need be shown unless there is evidence in the record tending to show that the defendant is a minor. People v. Poole, 284 Ill 39.”

Here there is nothing in the record to indicate defendant was a minor. In this case, the jury was required to find the age of the defendant, only to enable the court to determine the proper sentence, and it has been held that a judgment of conviction sentencing a defendant to the penitentiary will not be reversed merely because it does not appear in the record that the jury made a finding as to his age; and that it must appear from the record that the defendant was prejudiced by such failure, and a showing in the record as to what the age of the defendant is dispels all doubt of such prejudice. People v. Simmons, 299 Ill 201,132 NE 423.

We therefore conclude that in this case the age of the defendant was not a part of the corpus delicti and was sufficiently proved.

Finding no error, we affirm the judgment of the Circuit Court of St. Clair County.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       People v. Martin, 26 Ill2d 547, 188 NE2d 4; People v. Benson, 19 Ill2d 50, 166 NE2d 80, and People v. Wilson, 400 Ill 461, 81 NE 2d 211.

       Wistrand v. People, 213 Ill 72, 72 NE 748; People v. Rogers, 415 Ill 343, 114 NE2d 398; People v. Davidson, 240 Ill 191, 88 NE 565; People v. Claussen, 367 Ill 430, 11 NE2d 959; People v. Willson, 401 Ill 68, 81 NE2d 485; and People v. Davis, 358 Ill 617, 193 NE 535.


text:
    Eva S. Baker, Plaintiff-Appellant, v. Thomas Arthur Bates, et al., Defendants-Appellees.
    Gen. No. 66-29.
    Fifth District.
    October 25, 1966.

      Listeman, Bandy & Hamilton, of East St. Louis, and Clarence A. Weindel, of St. Louis, Missouri, for appellant.
    Wagner, Conner, Ferguson, Bertrand and Baker, of East St. Louis (John M. Ferguson, of counsel), for appellees.
   EBERSPACHER, J.

This is an appeal from the decree of the Circuit Court of Monroe County, construing the will of Charlie Murphy, deceased.

Charlie Murphy, a resident of Missouri, died testate in 1920. His last will and testament published March 9, 1920, and a codicil thereto published April 9, 1920, were probated in the State of Missouri and ancillary administration was had in Monroe County, Illinois. Both administrations were completed many years ago.

There is no dispute between the parties as to the facts, the controversy here involves a proper interpretation of Item VII of his last will and testament which provides as follows:

“I give, devise and bequeath to my wife, Minnie W. Murphy, to be held and enjoyed by her for and during the term of her natural life, all of my real estate situated, located and being in the State of Illinois, and I hereby give, devise and bequeath all of said real estate situated, located and being in the State of Illinois, to my said sisters, Minnie Taunt, Grace Light and Pearl Kunz, and my brother, Paul Murphy, subject to the life estate given and devised to my said wife, as above stated, the same to pass to them after the expiration of said life estate, share and share alike. And in the event that any of my said sisters and brother shall die before the expiration of said life estate, leaving no children surviving them, then, and in that event, the share of such as shall be not living upon such expiration, shall pass to and vest in the survivors of my said sisters, Minnie Taunt, Grace Light and Pearl Kunz, and my brother, Paul Murphy, share and share alike. In the event any of my said sisters, Minnie Taunt, Grace Light and Pearl Kunz, and my brother, Paul Murphy, be not living at the date of the termination of said life estate, and shall have left children surviving them, then such children shall be and become vested with the interest or share therein of their respective parents.”

At the time of Charlie Murphy’s death, he left surviving him his widow, Minnie W. Murphy, and Paul Murphy, Pearl Kunz, Grace Light, and Minnie Taunt, his brother and sisters, as his only heirs at law.

Paul Murphy, mentioned in the will, died in the year 1933, leaving him surviving as his only heirs, his daughters, plaintiffs Paula Killgo and Patricia Helen Murphy.

Minnie Taunt, mentioned therein, died in the year 1935, leaving her surviving as her only heirs at law, plaintiff Eva S. Baker, her daughter, and Thomas Eugene Bates, her son. Thomas Eugene Bates died in 1948, leaving him surviving as his only heirs, defendant Vera Bates, now Vera Raines, his widow, and defendants Thomas Arthur Bates and Patricia Ann Bates, his children.

Pearl Kunz, mentioned therein, died in the year 1947, leaving plaintiff Charles M. Kunz as her only heir.

Grace Light, mentioned therein, died in the year 1951 leaving no children surviving.

Minnie W. Murphy, the life tenant and widow of testator, Charlie Murphy, died on May 26, 1964.

We are here concerned with the last sentence of Item VII of testator’s will:

“In the event any of my said sisters, Minnie Taunt, Grace Light and Pearl Kunz, and my brother, Paul Murphy, be not living at the date of the termination of said life estate, and shall have left children surviving them, then such children shall be and become vested with the interest or share therein of their respective parents.”

Minnie Taunt died in 1935 and left Eva S. Baker, her daughter and Thomas Eugene Bates, her son. Thomas Eugene Bates died in 1948 prior to the death of Minnie W. Murphy, the life tenant. Thomas Eugene Bates left him surviving his widow, Vera Bates, now Vera Raines, and two children, Thomas Arthur Bates and Patricia Bates. The question presented is whether or not Eva S. Baker takes a % interest in the real estate or does she take a % interest and the widow and children of Thomas Eugene Bates each take a %8 interest. The trial court held that Eva S. Baker owned an undivided % interest and the widow and children of Thomas Eugene Bates owned an undivided %8 interest.

Contending that Eva S. Baker owned an undivided % interest in the premises, appellants have contended that the remainders were contingent and that title only vested in the children of Minnie Taunt that survived the life tenant. Appellees contend that the remainder vested in the brothers and sisters, upon the death of the testator, subject to being divested in the event any one of them died, during the life of the life tenant leaving no children surviving them; and that Minnie Taunt was vested with what is known as a determinable fee, sometimes known as a shifting executory devise, and that the condition of divestiture was defeated upon her death by her leaving children surviving her; and since she, at her death owned an estate of inheritance (vested remainder, which had been subject to divestiture, but not divested since children survived her), Eva S. Baker and Thomas E. Bates, her children, took the interest of their mother, subject of course, to the life estate, and upon the death of Thomas E. Bates, his share of the vested remainder passed to his widow and children, since it was an estate of inheritance.

Appellants contend that their interpretation is supported by Friedman v. Friedman, 283 Ill 383, 119 NE 321; Roper v. Finney, 7 Ill2d 487, 131 NE2d 106; Smith v. Chester, 272 Ill 428, 112 NE 325; Johnston v. Herrin, 383 Ill 598, 50 NE2d 720, and Raritan State Bank v. Huston, 329 Ill 604, 161 NE 141. An examination of each of those authorities disclosed that without exception, those authorities, in each instance, deal with wills (and in one instance a deed) containing-language imposing with respect to the remainder interest, a condition that the remaindermen survive the life tenant; in them the court was dealing with survivorship of the life tenant as the condition imposed by the testator; not as in the case at bar the death of a remainderman leaving his living child or children. The only specifically expressed condition in the case at bar was that in the event that one of the named remaindermen should die prior to the life tenant, he or she must have left surviving “them” a child or children.

The paramount rule of testamentary construction is that the intention of the testator as expressed in his will governs the distribution of his estate, and the intention of the testator, once it has been ascertained will be given effect unless to do so would violate some settled rule of law or would be contrary to public policy. Sloan v. Beatty, 1 Ill2d 581, 116 NE2d 375.

The law in Illinois, as in most other states, favors the vesting of estates at the earliest possible moment. Where a will is capable of two constructions the courts will give an estate of inheritance to the first devisee unless a contrary intention is clearly shown. Johnson v. Boland, 343 Ill 552, 557, 175 NE 794; Boys v. Boys, 328 Ill 47, 51, 159 NE 217; Lachenmyer v. Gehlbach, 266 Ill 11, 107 NE 202; Chapin v. Crow, 147 Ill 219, 35 NE 536; Patton on Titles, § 142, p 489; Carey and Schuyler, Illinois Law of Future Interests, § 291, p 398.

Carey and Schuyler, Illinois Law of Future Interests, § 291, at page 398, says:

“Today it is accepted as axiomatic that the law favors the vesting of estates and that remainders will be construed to vest at the earliest possible moment. It is conceivable, and in fact very likely, that the root of this rule of construction was the unwillingness of judges to subject remainders to the harsh doctrine of destructibility except when absolutely necessary.”

The classic definition of a vested remainder and the distinction between a vested remainder or a contingent remainder has been precisely stated by Professor Gray in Gray, The Rule Against Perpetuities (4th Ed), § 108, p 95, as follows:

“Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to, the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus on a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A. his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A. for life, remainder to such of his children as survive him, the remainder is contingent.”

Gray’s classic exposition has been frequently quoted and approved by the Illinois court. Smith v. Chester, 272 Ill 428, 112 NE 325; Lachenmyer v. Gehlbach, 266 Ill 11, 107 NE 202; Brechbeller v. Wilson, 228 Ill 502, 81 NE 1094.

Appellant has suggested that the word “then” as used in the last sentence of Item VII was an adverb of time, referring to the termination of the life estate of Minnie Murphy, and has cited Bergendahl v. Stiers, 8 Ill2d 257, 133 NE2d 280 and Phelps v. Seeley, 3 Ill2d 210,119 NE2d 923. While in both those cases the court interpreted the word “then” as an adverb of time, rather than reference to an event, we believe the language interpreted in both those cases is clearly distinguishable from the language with which we are here confronted. In the Bergendahl case the word “then” was used in the same phrase as were the words “at her death” and it was to that fact that the court determined the testator’s intention to use the word “then” as an adverb of time. In the Phelps case the word “then” was used in the same clause as the word “immediately” and the phrase “and if either one should die before coming into possession” found in the same sentence, referred directly to the words “immediately divided” and showed that the testator was providing for a contingency in the same sentence in which he was devising the remainder. Under such language the court felt the word “then” was a clear reference to time.

Applying Professor Gray’s distinction to the language of Item VII of Charlie Murphy’s will in the case at bar, it is readily apparent that unconditional devises of both the remainder interest and the life estate were first made by the testator. Thereafter, and by separate sentence he imposed the condition which might cause divestiture of the remaindermen’s interest. Thus, there can be no doubt under Professor Gray’s definition that the remainder interests here involved were vested immediately upon the death of the testator and constitutes estates of inheritance.

In Stombaugh v. Morey, 388 Ill 392, 58 NE2d 545, the will devised a life estate to testator’s widow and the remainder was devised under the following provision:

“At her (Mary Carr’s) death, it is my will that said farm lands be the property in fee of my daughter Millie Stombaugh and my son J. Arthur Carr and should either of them precede my wife in death his or her share shall go to their bodily heirs and if leaving no bodily heirs in that event to the survivor of them.”

There was no dispute as to the one-half interest of Millie Stombaugh, one of the testator’s children, the litigation involved a dispute between the son of the testator, J. Arthur Carr, and the purchaser at an execution sale of all of his interests. The testator died in 1919. The execution sale was on December 14, 1935. The life tenant died in 1942. With respect to the interest in the real estate owned by the remainderman at the time of the execution sale of all of his interests, the court said, at page 398:

“The will of Edward F. Carr devised a life estate in the lands in question to Mary Carr and appellee was devised an undivided one-half in the remainder in fee subject to be divested if he should die within the lifetime of the life tenant. If he did die within such time, such undivided one-half then passed by executory devise. Appellee had a base or determinable fee. (Citing cases.) It was a vested estate and subject to execution and sale by his judgment creditors. The rights acquired by such a sale would be lost if the event which defeated the fee should occur.”

On the basis of the foregoing language and the fact that the execution debtor owned an estate of inheritance (vested subject to divestiture) the court held that the purchaser at the execution sale acquired the interest of that remainderman in the real estate and reversed and remanded the decree of the Trial Court. While in that case, as appears from the last sentence quoted, the purchaser could be divested by a failure of the condition, in the present case, the condition of leaving children surviving Minnie Taunt had been fulfilled.

Item VII of the testator’s will can properly be divided into the three separate sentences utilized by the testator in expressing his desires. By the first sentence, there is no dispute that testator devised the real estate to his three sisters and brother subject to the life estate which he devised to his wife.

By the second sentence, the testator provided for the possibility that one of his sisters or brother might die before the expiration of the life estate and leave no children surviving him, in which event that remainderman’s interest was to pass in equal shares to the “survivors” of said sisters and brother. The word “survivors” as used in that sentence can only refer to survivorship among the sisters and the brother. There is no language indicating that the testator intended that the word “survivors” as thus used meant survivorship of the life tenant. Indeed, if it were otherwise, all the remainder interests would have failed because none of the named remaindermen survived the life tenant.

By the third sentence of Item VII of the will, the testator provided for the opposite contingency, that is the death of any of the sisters and brother prior to the termination of the life estate leaving children surviving “them,” in which event such children would become vested with the interest or share of their respective parent. By the use of the words “and shall have left children surviving them,” it cannot be contended that the testator meant that the children should survive the life tenant. It refers to “them,” obviously meaning the remainderman-parent.

The devise of the remainder interest by the testator, Charlie Murphy, was not conditioned upon or did not require that the testator’s sisters or brother survive the life tenant. In fact, the testator anticipated that one or more of his sisters or brother might not survive the life tenant. He, therefore, provided for that contingency. The only requirement or condition that he imposed upon the remainder interest was that if one of the sisters or the brother did not survive the life tenant, they must have left children surviving “them.” He did not say that they must leave children surviving the life tenant; he said that in the event any of such sisters or brother did not survive the life tenant, they must have left children surviving “them,” that is, surviving the parent who might be deceased upon the death of the life tenant.

Two of the testator’s sisters and his brother fulfilled the requirement or condition imposed by Item VII of the will. They died and left children surviving “them.” True, all of the children did not survive the life tenant, but this is irrelevant when there has been a complete vesting, with all conditions fulfilled. Upon the fulfillment of all conditions, which in this case was the death with surviving children, the remainder interest became fully, completely and unconditionally vested. The only remainder interest that was defeated by broken conditions was the interest of Grace Light who did not survive the life tenant and who did not leave children surviving her.

To construe Item VII, as requiring that the children of the specified remaindermen must have survived the life tenant, would be directly contrary to the express terms of Item VII of the will, specifically the last sentence thereof where the testator provided that in the event any of his sisters or brother be not living at the date of the termination of the life estate and shall have left children surviving “them,” then such children shall be and become vested with the interest or share of the parent. If the testator had intended the construction or effect proposed by plaintiff Eva S. Baker, he would have said “and shall have left children surviving the life tenant,” instead of “and shall have left children surviving them.”

Following settled rules of law we must hold that there was a vested remainder in the real estate in testator’s sister Minnie Taunt, and that Thomas Eugene Bates became vested with an estate of inheritance when he survived his mother Minnie Taunt, and upon his death his remainder interest passed to his widow and children.

Accordingly the judgment of the Circuit Court of Monroe County is affirmed.

GOLDENHERSH and MORAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Taylor, Defendant-Appellant.
    Gen. No. 49,867. (Abstract of Decision.)
    First District, Second Division.
    October 25, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by MR. JUSTICE LYONS. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bruce Thurman, Defendant-Appellant.
    Gen. No. 50,306. (Abstract of Decision.)
    First District, Second Division.
    October 25, 1966.
    Norman Nelson, Jr., of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Lawrence Genesen, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BRYANT. Not to be published in full.


text:
    People of the State of Illinois, Appellee, v. Charles Thomas, Otherwise Called Thomas Charles, Appellant.
    Gen. No. 50,897. (Abstract of Decision.)
    First District, Second Division.
    October 25, 1966.
    Rehearing denied November 15, 1966.
    Milton J. Kolman, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Matthew J. Moran, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BRYANT. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Carvin, Defendant-Appellant.
    Gen. No. 51,140. (Abstract of Decision.)
    First District, Second Division.
    October 25, 1966.

      E. B. McGuinn, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BRYANT. Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Adele Florence, a Minor, by Frank Florence, Her Father and Next Friend, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,335.
    First District, Second Division.
    October 25, 1966.
    Rehearing denied November 21, 1966.

      Harold A. Liebenson and Marvin A. Harder, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Philip Sheridan, Assistant Corporational Counsel, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This action was brought to recover for injuries allegedly occasioned by the negligence of the City of Chicago in failing to maintain a public crosswalk. The Chicago Transit Authority was also named as a defendant but was directed out of the case at the end of plaintiff’s evidence. The jury returned a verdict for the City of Chicago and plaintiff appeals. No appeal is taken from the judgment following the order directing the Chicago Transit Authority out of the case.

The mishap occurred on October 23, 1954, when plaintiff was approximately eighteen months old. She was being carried by her mother across the intersection of 63rd Street and California Avenue in Chicago, from the southeast corner to the northeast comer. On the date in question, 63rd Street was serviced by Chicago Transit Authority bus transportation, but streetcar rails from the recently discontinued streetcar transportation were still exposed. As Mrs. Florence crossed in the crosswalk her foot allegedly caught in an open space between the southernmost rail and the brick pavement, causing her to fall to the ground. Plaintiff was propelled from her arms some six to eight feet forward, struck her head on another rail and was knocked unconscious. Mrs. Florence picked up the plaintiff and struck her on the backside to awaken her, and plaintiff began projectile vomiting. She was taken to a hospital and then to the family pediatrician who ordered that X rays be taken.

Three persons testified for plaintiff concerning the nature and condition of the crosswalk on the day in question. Mrs. Florence, plaintiff’s mother, testified she observed the area where she fell immediately after her fall and noticed the bricks around the rail to be uneven and missing; there was a two to three inch difference between the top of the rail and the top of the bricks at the place where she allegedly caught her foot. Eugene Semsky testified he had resided in the neighborhood from July to December of 1954. He stated that he was familiar with the crosswalk and that its condition was poor; the bricks, or “cobble stones,” with which 63rd Street was paved were missing near the rails, and the southernmost rail was some two to three inches above the surface of the bricks. He further stated there were some twelve bricks missing in the crosswalk. Walter Kiltz, another resident of the neighborhood on October 23, 1954, testified the south rail in the crosswalk was some two inches above the pavement surface, that some five or six bricks were missing or broken in the crosswalk next to the rail, and that this condition existed at the time of the accident and persisted for some one or two months after October 23, 1954, at which time the City repaired the area with an asphalt coating.

Sigmund LaPorta testified for the defense and stated that he had been employed as a chef in a restaurant some four doors from the intersection of 63rd Street and California Avenue for several years prior to October 23, 1954, and had been so employed on that date and for several years thereafter. He stated that he used the crosswalk every day during this period and testified that the area was never in a state of disrepair. The witness identified three photographs of the area as correctly portraying the condition of the area and of the crosswalk as of the date in question. The three photographs received as evidence show the entire area to be in a state of good repair.

It appears that several X rays were taken of plaintiff’s skull after the accident and allegedly showed a lineal skull fracture. The trial court, however, refused to allow plaintiff’s pediatrician, Dr. Schultz, to testify to the results of the X rays for the reason that the X-ray negatives had been destroyed prior to trial and could therefore not be produced at the trial for purposes of cross-examination. The court’s ruling was partly based on the fact that Dr. Schultz stated, during plaintiff’s offer of proof, that one of his X-ray reports showed the fracture to be on the left side of plaintiff’s head, whereas another report showed the fracture to be on the right side. The trial judge felt the matter involved a question of expert interpretation for which the X-ray negatives themselves were indispensable for purposes of cross-examination.

The City maintains the evidence adduced at trial warranted the jury in finding no liability on the part of the City. The jury rendered a general verdict “for the defendant and against the plaintiff.” Where a jury renders a general verdict for a defendant, the verdict will not be disturbed on review if the evidence under the issues joined under one or more counts sustains that verdict. Goldschmidt v. Chicago Transit Authority, 335 Ill App 461, 82 NE2d 357; Ill Rev Stats 1965, chap 110, par 68(4). On all of the evidence presented we are of the opinion that the jury was warranted in finding no liability on the part of the City.

Evidence was offered by both parties as to the condition of the crosswalk on or about October 23, 1954. The three witnesses who testified for the plaintiff stated that on the day in question between six and twelve bricks were loose or broken in the crosswalk near the southernmost rail and that the rail lay some two to three inches above the surface of the brick pavement. Defendant’s witness, on the other hand, testified that he passed over the crosswalk every day on his way to and from work, and that the crossing was not in a state of disrepair at the time of plaintiff’s accident. He further identified three photographs of the crosswalk as correctly portraying the area and its condition of repair as of the date of the accident, which photographs clearly show the area to be in a state of good repair. On this posture of the evidence the issue was reduced to a question of weight and credibility for the jury and we feel that the jury was justified in finding no liability on the part of defendant City of Chicago.

Plaintiff maintains that the trial judge abused his discretion in admitting the three photographs into evidence for the reason that plaintiff’s witnesses testified to the state of disrepair of the area as of the date of the accident, thereby rendering the matters shown on the photographs contrary to the laws of human experience. However, the question was not one of admissibility of the photographs as evidence, but was a matter of weight and credibility to be given to the photographs to be resolved by the jury.

Plaintiff further maintains she was denied a fair trial because of certain errors allegedly committed by the trial court and the closing counsel. The first point which plaintiff advances in this regard is the refusal of the trial judge to allow testimony of Dr. Schultz as to what he found on the X-ray negatives taken of plaintiff’s head after the occurrence. It appears that the X-ray negatives themselves had been destroyed prior to the trial and the trial judge felt it would be unfair to allow Dr. Schultz to testify from the reports which other doctors submitted to him for the reason that the other doctors made conflicting statements as to what they found on the X rays. Consequently, without the X-ray negatives themselves, the defendant was not in a position to cross-examine Dr. Schultz concerning the conflicting interpretations on the reports. Furthermore, without the X-ray negatives, defendant would have been unable to present its own expert to interpret the results. Under these circumstances we feel the trial judge did not abuse his discretion in refusing to allow the testimony of Dr. Schultz without the production of the X-ray negatives.

A second point raised by plaintiff is the fact that the trial judge permitted defendant an extra peremptory challenge. The record shows that the trial, judge and the defendant assumed defendant had one challenge remaining before defendant exercised that challenge, whereas all of defendant’s challenges had been exhausted. After it had been exercised, plaintiff’s counsel called the fact to the court’s attention and the court offered plaintiff an additional challenge. Contrary to plaintiff’s contention the deviation from strict adherence to the statute in this regard in no way prejudiced the plaintiff to her right to a fair trial. See Smiley v. Barnes, 196 Ill App 536; Ill Rev Stats 1965, chap 110, par 66.

Plaintiff also contends the trial court erred in refusing to give to the jury Plaintiff’s Proffered Instruction No. 10, relating to the question of the negligence of Mrs. Florence as not affecting plaintiff’s right of recovery. We find no error in this ruling since the instructions which were given to the jury informed the jury that the negligence of plaintiff and her mother was not an issue in the case. The court would have been redundant had it given Plaintiff’s Instruction No. 10.

We have considered other points raised by plaintiff and find them to be without merit.

The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and LYONS, J., concur.


author: GOLDENHERSH, P. J.

text:
    John M. Keen, Administrator of the Estate of Carol June Keen, Deceased, Plaintiff-Appellant, v. Alva C. Davis, Doing Business as Alva C. Davis Drilling Company, Willard Tullis, John Davis, Doing Business as John Davis Excavating Company, and Clarence Taylor, Defendants-Appellees.
    Gen. No. 65-115.
    Fifth District.
    October 28, 1966.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    Jack E. Horsley and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellees Alva C. Davis and Willard Tullis, and John C. Robison, of Marshall, Feiger, Robison & Quindry, of Fairfield, for appellees John Davis and Clarence Taylor.
   GOLDENHERSH, P. J.

Plaintiff appeals from the judgment of the Circuit Court of Wayne County, entered upon allowance of defendants’ motions for a directed verdict at the close of the plaintiff’s case.

Defendants have filed a motion to dismiss the appeal on the ground that plaintiff, having failed to file a post-trial motion, has waived the right to apply for a new trial, and the failure to file such post-trial motion prevents consideration of the appeal on its merits. The motion to dismiss the appeal was taken for consideration with the case.

The issue presented by defendants’ motion was considered and decided by the Appellate Court for the First District in Rzeszutko v. Yellin, 61 Ill App2d 164, 208 NE2d 872, by the Appellate Court for the Second District in Malcomson v. Bennett, 69 Ill App2d 281, and the Appellate Court for the Third District (now the Fourth District) in Mann v. Sanders, 29 Ill App2d 291, 173 NE2d 12. The First and Second Districts held that section 68.1(5) of the Civil Practice Act (c 110, § 68.1(5), Ill Rev Stats 1965) is applicable, and allowed motions to dismiss the appeals. The holding in Mann v. Sanders (supra) is to the contrary.

Section 68.1 of the Civil Practice Act (c 110, Ill Rev Stats) provides, in part:

“(1) If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (a) grant the motion or (b) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion.”
“ (2) Relief desired after trial in jury cases, heretofore sought by reserved motions for directed verdict or motions for judgment non obstante veredicto, for judgment notwithstanding the verdict, in arrest of judgment or for new trial, must be sought in a single post-trial motion. . . . The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief. ... A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.”
“(5) Any party who fails to seek a new trial in his post-trial motion, either conditionally or unconditionally, as herein provided, waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict.”

Prior to the 1955 amendment, the only provision of the Civil Practice Act pertaining to directed verdicts, was found in section 68 (3) (a). A party adversely affected by a ruling on a motion for directed verdict had an exception “as a matter of course.” The only provision for post-trial motions (§ 68(1)) required that a motion be filed if the post-trial relief sought was judgment non obstante veredicto, arrest of judgment, or a new trial.

The effect of the 1955 amendments (§ 68.1, supra) was to require the renewal of a motion for directed verdict in a post-trial motion, but there is no provision for a post-trial motion by the party against whom the verdict is directed.

We agree with our colleagues in the First District that “the purpose of a post-trial motion for a new trial is to give the trial court an opportunity to correct any trial errors . . . .” (Rzeszutko v. Yellin, 61 Ill App2d 164, 167, 208 NE2d 872). This, however, does not enable us to read into the Civil Practice Act a requirement for a post-trial motion where the Act contains no such requirement.

A motion for a directed verdict presents the single issue of whether the plaintiff’s evidence, considered together with all reasonable inferences from it, in its aspect most favorable to the plaintiff, fails to prove any necessary element of the plaintiff’s case, Hulke v. International Mfg. Co., 14 Ill App2d 5,142 NE2d 717, and raises only a question of law. Wolf v. Chicago Sign Printing Co., 233 Ill 501, 84 NE 614; John Deere Plow Co. of Moline v. Carmer, 350 Ill 104,182 NE 762. The ruling on the motion is solely an act of the court, and envisioning any participation by the jury in rendering a verdict at the direction of the court, is pure legal fantasy.

In our opinion, the provisions of section 68.1 express the legislative intent that a post-trial motion be required only in those cases in which a jury has actually rendered a verdict. This is evidenced by the fact that no such motion is required in cases in which the jury has failed to reach a verdict (§ 68.1(5)), or in nonjury cases (§ 68.3). Absent a clear and unequivocal statutory directive, neither precedent nor logic make mandatory a motion for new trial in a situation where only one issue is presented, when the Civil Practice Act specifically states no such motion is necessary in a non jury case, which might involve multiple and complex issues.

We hold that no post-trial motion was required, and the motion to dismiss the appeal is denied.

On August 8, 1964, Carol June Keen, suffered injuries, resulting in her death, in a collision between an automobile driven by her, and a truck. This suit is brought by the plaintiff, John M. Keen, as administrator of her estate.

The defendant, John Davis, doing business as John Davis Excavating Company, is the owner of a truck, which at the time in question, was being driven by defendant, Clarence Taylor.

The defendant, Alva C. Davis, doing business as Alva C. Davis Drilling Company, is the owner of a truck, which at the time of the occurrence, was being driven by defendant, Willard Tullís, and it was with this truck that decedent’s automobile collided. There was no contact between decedent’s automobile and the truck driven by Taylor.

The collision occurred on a gravelled country road in Wayne County. At the time of the collision, Mrs. Keen was driving in a westerly direction, and the two trucks were being driven east.

Clyde Robbins testified that the road extends generally east and west, is gravelled, and there is a ditch approximately two feet deep on each side of the road. He stated it had not rained since June 19th, and the road was dry and dusty. Vehicles traveling over the road raised clouds of dust which obstructed the view of the road from his home, which is situated approximately 15 to 20 feet off the road.

To the west of Robbins’ home the road makes a junction with a north-south road and there are stop signs at that point. Approximately 1,600 feet to the east of the junction, the road goes over a narrow bridge. He placed the collision as occurring about 800 feet west of this bridge.

He testified further that there were three paths or tracks in the road, one on each side and a center track. Vehicles normally traveled with their left wheels in the center track.

He heard of the collision immediately after it occurred, and went to the scene. The vehicles had not been moved, and he identified a photograph as correctly portraying the position of the vehicles at the time of his arrival. The photograph shows the left front fender of Mrs. Keen’s automobile up against the left front fender of the truck. The front of the automobile was badly damaged, while only the left fender of the truck shows any evidence of damage. Mr. Robbins stated that “the two vehicles met with their left front wheels, both of them, in as near the center of the road as possible.” The automobile was “angled a little to the southwest.”

Larry Murphy testified that he arrived at the scene shortly after the collision, and both vehicles were “pretty well in the center of the road.”

Defendant, Clarence Taylor, called by plaintiff under section 60 of the Civil Practice Act, testified that he was driving a truck carrying an oil' rig weighing approximately 35,000 pounds, that he had made a left turn onto the gravel road at the above described junction, the road was dry and the weather dry and clear. Defendant, Tullís, was following about 400 feet behind him in a truck which, with its cargo, weighed approximately 60,000 pounds, he saw Tullís’ vehicle as he made the turn, after the turn he was moving very slowly, by the time his vehicle attained a speed of 5 to 10 miles per hour, the dust became so high he could not see behind him, the wind was blowing from the southwest at 2 to 5 miles per hour, Mrs. Keen’s westbound automobile passed him when he was about 100 to 150 feet east of the bridge at which time she was traveling 30 to 35 miles per hour, he, at that time was accelerating his speed above 10 miles per hour; after the vehicles passed, he did not see her any more because she was enveloped in the cloud of dust to the rear of his truck. When the dust settled he saw there had been a collision, and ran to the scene. His description of the position of the vehicles at that time is substantially the same as Robbins’; and he, too, identified the photograph as correctly portraying what he saw at that time.

Defendant, Tullís, called under section 60 of the Civil Practice Act, testified that he had been following Taylor, at the time he made the turn at the junction he could “see farther,” but just prior to the collision he could see only 25 or 30 feet because of the dust cloud raised by Taylor’s truck, he was driving 15 or 20 miles per hour, he did not reduce his speed and did not stop to give the dust time to clear. He stated Mrs. Keen “came out of the dust.” At that time he was driving with the right side of his truck two feet from the south edge of the road. When he saw her, he put both feet on the brake and his truck had slowed somewhat at the time of the collision.

There is no testimony as to the width of the road at the point of collision. The witnesses fixed the time of the occurrence at approximately 1:15 p. m.

The complaint is in two counts. Count I charges all defendants with negligence and Count II, with wilful and wanton misconduct.

At the close of the plaintiff’s case, the court directed a verdict in favor of all defendants, on both counts, and this appeal followed.

Plaintiff contends that the court erred in directing the verdict in defendants’ favor in that the evidence made a prima facie case of plaintiff’s decedent’s freedom from contributory negligence and of defendants’ negligence. Plaintiff argues that plaintiff’s decedent cannot be held to have been guilty of contributory negligence as a matter of law because reasonable minds could differ on this issue in light of the evidence adduced. As to defendants’ negligence, plaintiff contends that defendant, Taylor, was negligent in driving.at a rate of speed which would create a dust cloud to obscure the vision of the decedent and others using the highway, and in failing to warn the decedent that another truck was following, thus endangering the safety of the decedent who had no means of knowing that there was another vehicle hidden by the dust cloud.

As to the defendant, Tullís, plaintiff argues that the evidence makes a prima facie case that defendant followed the Taylor vehicle too closely, that he failed to give plaintiff’s decedent one-half of the traveled portion of the road, and that he was negligent in driving into the dust cloud when he knew that in so doing he was endangering westbound traffic.

Defendants contend that the evidence fails to sustain plaintiff’s burden of proof on either the issue of the decedent’s freedom from contributory negligence, or the negligence of the defendants.

Plaintiff has not cited, nor has the court found, any authority for the proposition that driving a vehicle at such speed as to create a cloud of dust is of itself, prima facie evidence of negligence. The added fact that another vehicle was known to be following at a distance of several hundred feet is not sufficient to make a prima facie case of negligence against the defendants, John Davis, doing business as John Davis Excavating Company, and Clarence Taylor, and as to these defendants, the trial court properly directed a verdict in their favor, on both counts of the complaint.

The testimony of defendant, Taylor, shows that when his truck met decedent’s automobile, they passed without mishap and she was driving on the north side of the road. Taylor’s vehicle was proceeding eastwardly and continued to raise a cloud of dust. We have examined the authorities cited and discussed by counsel, and conclude that the question of whether plaintiff’s intestate, in continuing to drive in a westwardly direction after passing the vehicle driven by defendant, was in the exercise of due care and caution, was a question of fact for the jury. Snyder v. Robert A. Black, Inc., 53 Ill App2d 327, 203 NE2d 1. Had she stopped, another westbound vehicle likewise confronted with a choice of stopping, or continuing to travel through the dust cloud created by Taylor’s truck, might have struck her from the rear, and we cannot say that the choice she made constituted contributory negligence as a matter of law.

“The exercise of due care need not be established by direct and positive testimony but may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision.” Royer v. Graham, 45 Ill App2d 22, 30, 195 NE2d 244. The circumstance of plaintiff’s decedent driving on the proper side of the road at the time when Taylor’s truck passed her automobile is sufficient, under the evidence in this case, to make a prima facie case that the decedent was in the exercise of due care. Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733.

There is no testimony as to the width of the road. Plaintiff offered in evidence a photograph portraying the scene and the position of the vehicles after the collision. Larry Fox, who appears in the photograph, was called as a witness by plaintiff, and testified as to the distance between where he is shown to be standing and the place where a state trooper appears. This testimony, considered with the testimony of defendant, Tullis, that he was driving with the right side of his vehicle two feet from the south edge of the road, the testimony with regard to the “center track” in which the left wheels of both vehicles were traveling, and the position of the vehicles after the collision, is sufficient to create an issue of fact as to whether defendant, Tullis, was negligent. As stated by the Appellate Court for the First District in Snyder v. Robert A. Black, Inc., 53 Ill App2d 327, 203 NE2d 1 at page 330: “The test to be applied to a defendant’s motion for a directed verdict, at the close of the evidence, is whether there is any evidence or reasonable inferences arising from the evidence, tending to prove the cause of action alleged in the complaint. On such a motion, in a jury trial, the court does not weigh the evidence or the inferences that can be drawn from the evidence; these are questions for the jury. The court must decide if the plaintiff’s evidence fails, as a matter of law, to support his complaint. It becomes a question of law only where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more of the necessary elements of the cause of action.”

The evidence here, when viewed in the light most favorable to plaintiff, presented a prima facie case as to the count charging defendants Alva C. Davis, doing business as Alva C. Davis Drilling Company, and Willard Tullís with negligence, and the court erred in directing a verdict in favor of these defendants.

In Schneiderman v. Interstate Truck Lines, 394 Ill 569, 69 NE2d 293, at page 583, the Supreme Court said: “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” Under this definition, defendant, Tullís’ testimony that he drove 15 to 20 miles per hour into a cloud of dust which reduced his range of vision to 25 or 30 feet, did not reduce his speed, and with the right side of his vehicle two feet from the right side of the road, considered together with the testimony of Larry Fox, the testimony as to position of the vehicles and the description of the road, make a prima facie case of wilful and wanton misconduct as to these defendants, and the court erred in directing a verdict on this count.

For the reasons herein set forth the judgment entered in favor of the defendants John Davis, doing business as John Davis Excavating Company, and Clarence Taylor is affirmed. The judgment entered in favor of defendants, Alva C. Davis, doing business as Alva C. Davis Drilling Company, and Willard Tullís is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

EBERSPACHER and MORAN, JJ., concur.