author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Defendant in Error, v. Andrew Lee Hulet (Impleaded), Plaintiff in Error.
    Gen. No. 50,090.
    First District, Fourth Division.
    December 30, 1965.

      Robert B. Jones, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

After a bench trial, defendant was convicted of burglary and sentenced to a term of two-to-four years. His codefendant, Young, was found not guilty. In this appeal defendant contends that the trial court erred in admitting into evidence his alleged confession; that there was no competent evidence of the corpus delicti in corroboration of the alleged confession; and that the trial court erred in failing to consider testimony of the codefendant.

The record shows that defendant began drinking at the Hi-Fi Lounge at about 9:00 p. m. on March 21, 1963. Defendant testified that he drank gin, wine and beer, and that the total consumption was “over my normal, what I could drink.” Defendant and an unidentified friend departed the Hi-Fi Lounge before midnight and went to a bar known as Sam’s located at 24th and State Streets. While at Sam’s, defendant and one or two friends consumed a half-pint of gin. Of subsequent occurrences defendant testified that the last thing he remembered prior to awakening in jail at 6:30 the next morning was a crowd of people and getting hit on the side of his head. Defendant stated that he was “very intoxicated” that night. In corroboration of this contention, A. D. Williams testified that he was with defendant at the Hi-Fi Lounge and that when defendant left the premises “he wasn’t sober” but was “quite intoxicated.”

Testimony of codefendant Young sheds some light on defendant’s activity between midnight and 6:30 on the morning of March 22. Young testified that at about 9:00 p. m. he was in the Hi-Fi Lounge where he saw defendant but did not speak to him; that he (Young) left there before midnight and went to a bar located at 23rd and Cottage Grove, where he had a conversation with defendant and gave him money for a drink. Young further testified that he then went to the washroom and when he returned defendant was gone; that the bartender told him defendant had been ejected because of a fight. Young said that shortly thereafter he saw a crowd of people across the street at a General Tire store; that he saw defendant lying on the floor inside the store; that defendant appeared to be asleep; that he joined the crowd of people who were trying to attract defendant’s attention so that defendant would leave the store. At this point of the direct examination of Young by his own counsel, the trial judge called a short recess and inquired as to whether defendant Hulet’s counsel wished to have certain parts of Young’s testimony deleted from the record. Upon appropriate motion by defendant Hulet’s counsel, the court then expunged the testimony of Young beginning with all questions and answers from the time he recited leaving the Hi-Fi Lounge. Subsequent to this recess, Young testified that while he was walking around the General Tire store, located at 2249 S. Cottage Grove, he observed a police car. The police arrested Young at the corner of 22nd Street and Prairie Avenue.

A more detailed explanation of what transpired in the early morning of March 22 was offered by witnesses for the State. Officer Gibson testified that, while on patrol with his partner, Green, at about 12:45 a. m., northbound on Cottage Grove Avenue near 23rd Street, they saw defendant fall to the floor in the brightly lit General Tire store; that immediately he and Green left their police car and went around to the Prairie Avenue side of the store; that as they rounded the corner they observed Young standing a few feet from the double door garage of the store where a window had been broken; that they arrested Young and entered the premises; that defendant was inside, standing up and holding his arms in the air in the process of surrendering. On further examination, Gibson stated that he observed another broken window leading from the garage part of the premises to the office; that there were three typewriters and three adding machines stacked on the tables and on the floor; that he then placed defendant under arrest and took both defendant and Young to an interrogation room at the First District Police Station. Officers Gibson, Eice, Sundstrom and Green were in the interrogation room with defendant and Young when, according to Gibson, defendant admitted that he had broken into the General Tire premises. On cross-examination, Gibson stated that in his opinion defendant was coherent at the time of his arrest.

Officer Sundstrom testified that he interrogated defendant and Young in the presence of Officers Rice, Gibson and Green; that defendant signed a statement or confession recording some questions and answers which had been made in the interrogation room and Young signed the document in the capacity of a witness. Sundstrom further testified that Young stated defendant had been drinking and had asked Young if he would want to burglarize the place across the street; that Young admitted he had acquiesced in the proposal and had stationed himself on the corner across the street from the General Tire store to watch for the police. On cross-examination, Sundstrom said that in his opinion defendant was “slightly intoxicated” at the police station.

Officer Rice testified that, upon interrogation, defendant admitted that he had decided to break into the premises; that defendant recounted how he had met Young at a tavern and asked him if he wanted to make some money; that Young’s reply was that his rent was due and he needed $40 to pay it; that after some further conversation Young agreed to help him. Rice also testified that defendant’s statement was reduced to writing and that after defendant read it he signed it. The statement, which was received in evidence, included the following questions and answers:

Q. What is your social security number ?
A. [ XXX XX XXXX ].
Q. At the time you obtained this number, where were you living?
A. 2910 S. Dearborn St., Chicago, Ill.
Q. What is the extent of your education?
A. Three years of high school.
Q. Do you read and write the English language?
A. Yes.
Q. Do you know where you are and why you are here?
A. In jail at 11th and State and I’m here because a [sic] broke a window and went into the place. I went into.
Q. Are you willing to tell us about this incident?
A. Yes.
Q. Where were you on 22 March 1963 at about 12:30 A.M.?
A. I was drinking wine with Robert Young at corner of 23rd & Cottage Grove Ave. We drunk the wine. I threw the bottle away. I then asked Robert Young if he wanted to make some money. He said yes, and that he needed some money. Then I told him wait there and let me know if anything happened or anybody comes. I walked across the street to this tire place and went around to the rear. I broke the window in the garage door and climbed inside. I went looking for a cash register but couldn’t find one. I broke into an office in the building by breaking a window between the office and the garage. I then stacked three typewriters next to this broken window. I then saw the police cruising past and I didn’t have time to duck and they saw me. I raised my hands and surrendered.
Q. Where was Robert C. Young while you were in this building?
A. He was supposed to be out on the corner watching for the police.
Q. Where is this Robert Young at this time?
A. He is sitting here next to me.
Q. Had you been drinking before you broke into building?
A. Yes, sir.
Q. How much ?
A. Quite a bit of wine and some gin.
Q. After you have read the foregoing statement, consisting of two pages and finding it to be the truth, as you have stated, without any threats or promises, will you sign it ?
A. Yes.

Defendant first contends that the trial court erred in admitting in evidence his confession because he was intoxicated at the time it was made and, further, because all material witnesses to the confession were not called at the trial. We can dispose of the latter point quickly. There is no claim that defendant’s confession was involuntary because of having been induced by force, threats, or promises of leniency. Since the admissibility of the confession is not questioned on these grounds, no error may be predicated upon the failure to call at the trial all material witnesses to the confession. People v. Wright, 24 Ill2d 88, 92, 180 NE2d 689.

The point concerning intoxication requires a more extended discussion. A finding that the defendant’s confession was involuntary would require reversal, regardless of the possibility that there might be other evidence sufficient in itself to support the judgment of conviction. Admission of the confession in such a case violates due process. Lynumn v. Illinois, 372 US 528, 537. But a claim of intoxication does not present such a case. A good statement concerning the admissibility of a confession made while allegedly under the influence of intoxicating liquor was expressed in People v. Townsend, 11 Ill2d 30, 42, 43, 141 NE2d 729 where the court was presented with the question of whether a defendant under the influence of drugs is capable of making a voluntary confession. The court approved the following language of State v. Wise, 19 NJ 59, 115 A2d 62 (1955):

Although there appear to be few reported cases involving the admissibility of confessions given while the defendant was under the influence of narcotics, we think it is apparent the same principles apply to this class of cases as have long been applied to confessions made while under the influence of intoxicating liquor. In the latter class of cases, both the state and federal courts are in unanimous agreement that the intoxication of the accused at the time he confesses affects only the weight of the confession as evidence against himself. So long as the accused is capable of making a narrative of past events or of stating his own participation in the crime, his statements are admissible against him. (Citing cases.)

Defendant refers us to State v. Anderson, 247 Minn 469, 78 NW2d 320 (1956), where the accused contended successfully that his confession had been made while he was under the influence of intoxicating liquor. That case is of no aid to the instant defendant since there the record indicated that the accused was “in a drunken stupor” or “just out” at the time of the confession. The evidence here completely fails to establish that physical fact.

A better analogy is found in People v. Cox, 383 Ill 617, 622, 623, 50 NE2d 758, where the accused claimed that his confession should not have been admitted in evidence because he “had been intoxicated for some forty hours prior to that night and that by reason of his tired, dazed and worn condition, caused by such long period of intoxication, the confession could not be considered as having been made voluntarily.” The court held that the confession was properly admitted in evidence and deemed it significant that (as in the case at bar) there was no contention that the confession was involuntarily procured by “force, intimidation or promise of immunity.”

We should bear in mind also that the question of the voluntary nature of a confession is primarily for the trial court to determine and its decision will not be disturbed unless it is against the manifest weight of the evidence. People v. Lego, 32 Ill2d 76, 203 NE2d 875; People v. Weger, 25 Ill2d 370, 185 NE2d 183; People v. Miller, 13 Ill2d 84, 148 NE2d 455.

While the record in the instant case indicates beyond question that defendant spent several hours drinking liquor at various bars prior to the offense, the testimony is minimal in support of defendant’s claimed intoxication at the time of his oral and written confession. As bearing on his condition we have set forth a major part of his signed statement verbatim. It supports the trial court’s conclusion since it contains a lucid and descriptive account of the events which precipitated his arrest. The “. . . clarity and accuracy [of the statement] negate any inference that defendant was confused, incapacitated or mentally distracted. . . .” People v. Muniz, 31 Ill2d 130, 138, 198 NE2d 855. We conclude that defendant’s confession was properly admitted in evidence.

Defendant next contends that there is no evidence in this case to corroborate the confession and establish the corpus delicti, citing People v. Jones, 26 Ill2d 381, 386, 186 NE2d 246. While it is true that a voluntary confession may be insufficient, without more, to sustain a conviction, the required corroborating evidence need only tend to confirm some of the circumstances related in the confession and need not be sufficient in itself to prove the corpus delicti. The confession and the corroborating evidence are to be considered together. People v. O’Neil, 18 Ill2d 461, 464, 165 NE2d 319; People v. Gavurnik, 2 Ill2d 190, 194, 117 NE2d 782.

There is uncontradicted testimony in the record which tends to confirm the circumstances related in defendant’s confession. Officer Gibson testified that he arrested defendant inside the General Tire store. He also testified that, prior to this arrest, he observed that two windows leading to the office of the store had been broken and that three typewriters and three adding machines were stacked on tables and on the floor close to one of the broken windows. All of these facts are perfectly consistent with the content of defendant’s confession and tend to prove the truth thereof. We think that the corpus delicti of the offense in this case was established beyond a reasonable doubt.

Finally, defendant argues that the trial court erred in failing to consider testimony of his codefendant Young. We find no merit in this contention. The record shows that defendant’s own counsel moved to delete the testimony which he now claims would tend to show that he was “in a drunken stupor” at the time of his confession. Defendant fails to acknowledge, however, the counterbalancing detrimental effect which this testimony would also have had on his case, since it certainly would have contained evidence in substantial corroboration of his confession. Defendant’s counsel at the trial apparently chose to avoid the certainty of damaging corroborating evidence rather than chance the uncertain possibility that such evidence would render the entire confession inadmissible. We cannot say that the result would have been any different if contrary action had been taken. This situation presents only an attorney’s concern which is the “product of reflective hindsight” (People v. Palmer, 31 Ill2d 58, 66, 198 NE2d 839) and it is “clear that a misapprehension of counsel cannot be regarded as an error on the part of the court.” Ogden v. People, 134 Ill 599, 602, 25 NE 755.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Kelly, Defendant-Appellant.
    Gen. No. 50,702.
    First District, Fourth Division.
    December 30, 1965.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

In a bench trial defendant was convicted of theft and, on a finding that the property stolen exceeded $150 in value, he was sentenced to the penitentiary for a term of three-to-six years. The only point raised by defendant on this appeal is that the evidence failed to show that the stolen automobile had a value in excess of $150. In his brief he contends, therefore, that the sentence should be reduced to one appropriate to a misdemeanor for theft of property not exceeding $150 in value.

The indictment which was returned on August 17, 1964, charged defendant with theft of property exceeding $150 in value, in violation of section 16-1 (a) of the Criminal Code. Ill Rev Stats (1968), c 38, § 16-1 (a).

A Behavior Clinic examination was conducted, and, after a sanity hearing, on a jury’s verdict, defendant was adjudged competent to stand trial. A jury was waived and, at the conclusion of the evidence, the trial judge found defendant guilty of “grand theft, value of property over $150.00.” Judgment using the same terminology was entered (as set forth in the common law record), and the usual post-trial motions were denied. A hearing was held to consider matters in aggravation and mitigation, and sentence was imposed as related above. The sentence also included the language quoted in this paragraph concerning “grand theft” and the value of the property stolen.

The report of proceedings discloses testimony that a garageman had estimated the cost of repair of the stolen 1959 Chevrolet automobile at $500, it having been wrecked at the time of defendant’s arrest. We agree with defendant that this testimony' does not necessarily evidence the value of the car at more than $150. People v. Fognini, 374 Ill 161, 28 NE2d 95. The only testimony bearing directly on value is that of the complaining witness who frankly stated that he did not know if his automobile was worth more than $150 at the time of its theft.

The significance of the value of the stolen property is at once apparent upon examination of the penalty provisions of section 16-1 which read:

A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.

When it came time for the State to file its brief in this court, the State’s Attorney filed instead a Confession of Error in which he acknowledged the record’s lack of proof of the stolen automobile’s value, and moved the court to reverse the conviction and remand the cause for a new trial. No objections or countersuggestions were filed by defendant, and, in the absence of objection, the motion was allowed as a matter of routine.

Several weeks thereafter defendant presented a motion to vacate the order reversing and remanding the cause for a new trial, arguing that, under the circumstances, defendant was entitled to an outright reversal. Again we have been left to pass on the motion unilaterally, as this time the State’s Attorney has seen fit not to object.

Presently confronting us, therefore, are three alternatives: (1) to affirm the trial court’s sentence of three-to-six years for “grand theft,” (2) to recognize the State’s claim that there should be reversal and remandment for a new trial, or (3) to accede to the defendant’s contention that his conviction should be reversed outright without remand or modification. We are of the opinion that none of these positions is correct, and we elect to follow a fourth route of our own choosing.

Considering first the State’s Confession of Error as requiring reversal, we are not bound to recognize as error whatever a party may confess to be such, nor are we bound to follow the suggested remedy of either party for the cure of any such confessed error. As stated by the Supreme Court in Young v. United States, 315 US 257, 258, 259:

The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. See Parlton v. United States, 75 F2d 772. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as to that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties. (Citing cases.)

See also United States v. Holton, 227 F2d 886, 893-895 (7th Cir), cert den 350 US 1006.

. It would appear that the term “grand theft” and the allegations and findings as to property value employed throughout these proceedings have misled the State’s Attorney into the belief that defendant’s conviction may not stand in the absence of proof that the stolen automobile exceeded $150 in value. This is not true, however, as the only crime with which we are here concerned is that of “theft.” Theft is committed by the stealing of “anything of value,” regardless of the amount thereof. Ill Rev Stats, c 38, § 15-1. The particular value of the property relates only to the nature and extent of the penalty which may properly be imposed.

When the State seeks the maximum penalty permitted by the statute, by alleging in the indictment a property value in excess of $150 (as in this case), and the proof fails as to value only, it does not follow that the crime of “theft” has not been proved. The court may take judicial notice of the fact that a 1959 Chevrolet driveable in 1964 is a thing of some value even though it may not, without more proof, conclude that the value exceeds $150. People v. Dunsworth, 323 Ill App 470, 474-478, 56 NE2d 52.

We are of the opinion, therefore, that the record shows defendant to have committed the crime of theft. In this circumstance, neither defendant’s argument nor the State’s Attorney’s Confession of Error affords any ground for reversal of the judgment insofar as it finds defendant guilty of theft. The Confession of Error was properly presented, however, to point out that the record affords no basis for a sentence of three-to-six years.

In his brief as originally filed, defendant contended that this court should exercise its authority under section 121-9 (b) (3) of the Code of Criminal Procedure to reduce the degree of the offense of which he had been convicted. Ill Rev Stats (1963), c 38, § 121-9 (b) (3). We undoubtedly have that power, and it is an extremely valuable judicial tool, the use of which is warranted in cases involving “included offenses.” From what we have said, though, it can be seen that we do not consider “petty theft” to be an included offense in “grand theft.” Ill Rev Stats (1963), c 38, §2-9. The crime is simply “theft.” But another power was granted by the Code of Criminal Procedure which does make it possible for us to determine this case without remand for correcting the sentence. Pursuant to section 121-9 (b) (4) we may “ [r] educe the punishment imposed by the trial court.”

To what, then, should the sentence be reduced? If we were to rely solely on the aspect of the property’s value, the penalty would have to be limited to a fine and/or jail sentence. Other matters in the. record, however, not brought to our attention by either party, place a different light on the question and require a penitentiary sentence.

The penalty paragraph of section 16-1 (quoted above) provides a mandatory sentence within the range of one-to-five years for a person convicted of theft (where the property stolen does not exceed $150 in value) after a prior conviction of any type of theft. As mentioned earlier in this opinion the trial court, prior to sentence, conducted a hearing as to matters in aggravation and mitigation. The record includes a stipulation that defendant had been convicted of grand larceny in 1956 and sentenced to the Mississippi penitentiary for a term of two years. The record also shows that in 1961 defendant was convicted of petty theft in Chicago and sentenced to one year in the House of Correction.

We conclude from this record that an appropriate sentence in this ease would be a term of not less than one nor more than five years and defendant’s sentence should therefore be reduced accordingly.

In reaching this decision we are mindful of the fact that the indictment did not allege the defendant’s prior theft convictions. We are also aware of decisions which have held that prior convictions must be pleaded in order to justify conviction and sentence under a statute providing for the imposition of an aggravated penalty upon recidivist offenders; e. g., People v. Hightower, 414 Ill 537, 544, 545, 112 NE2d 126. We distinguish those cases, though, on the basis of a difference in the statutory background against which the present case is to be decided.

It is true that in Hightower the court was dealing with a statute (the Narcotic Drug Act, Ill Rev Stats (1951), c 38, § 192.23) which, like the current theft statute, was silent as to whether or not a prior conviction should be alleged in the indictment in order to sustain an aggravated penalty. The court commented, however, on the fairness of the Federal rule which omitted prior convictions from the indictment and the jury’s consideration, but considered itself powerless to adopt such a practice without “sanction of the legislature.” We are of the opinion that this power has since been impliedly sanctioned by the legislature.

To begin with, we feel constrained to state that we can scarcely conceive of anything more prejudicial to the defendant in a trial to determine his guilt or innocence of the instant charge, than the submitting to the fact-finder proof of prior convictions of a similar offense. (We are limiting our concern now, of course, to the introduction of such proof solely for the purpose of qualifying for an aggravated penalty.) In the case before us, for example, it would certainly have weighed heavily against the defendant, in the mind of the court (consciously or subconsciously), if the State had been permitted to prove in its case in chief that the defendant had stolen automobiles on previous occasions.

People v. Lund, 382 Ill 213, 46 NE2d 929 is a case in point. In that case there were two counts to the indictment, one charging the instant offense of petty larceny, and the second charging the instant offense and three prior petty larceny convictions. The latter count was intended to comply with section 393 of the Criminal Code for aggravated penalties, but failed to allege that the defendant had met the age requirement (18 years) pursuant to one of the provisions of that section. The trial court denied a motion to quash the second count, and the Supreme Court held this to have been error.

As to the first count, the court held that a conviction thereunder could not stand because in the course of the trial evidence of the prior convictions under the second count had been admitted for the jury’s consideration. Recognizing what we have pointed out to be the basic unfairness of such evidence, the court said at page 217:

The State introduced upon the trial evidence that defendant had previously been convicted three times of the offense of petty larceny. This evidence was incompetent and highly prejudicial. It had nothing to do with the larceny of May 17, 1941, for which the defendant was on trial under the first count of the indictment. Its effect was to give to the jury the details of her criminal record. Evidence of a distinct, substantive offense, in no way relevant to the matters in issue, cannot be admitted against a defendant being tried for a similar crime, for, to the mind of the average person, proof that the accused committed a similar offense, or one equally heinous in character, tends toward the belief that he is guilty of the crime charged. (People v. Gawlick, 350 Ill 359.) A defendant charged with crime has a right to a fair and impartial trial according to the rules of law requiring the exclusion of incompetent and prejudicial evidence. Regardless of his depravity of character or how full of crime his past life may have been, he is entitled to be tried only upon competent evidence and to stand before the jury unprejudiced by improper reference to his former crimes. The law does not provide one method for trying innocent persons and another for trying guilty persons.” (Emphasis supplied.)

Despite the court’s strong feeling on this subject, as demonstrated by this quotation, it is apparent, nevertheless, that it would have accepted the introduction of such evidence under the second count if it had been sufficiently pleaded. The reason, of course, is that the statute as it then existed required the inclusion of prior convictions in the indictment if the felony penalties were to be applied. Ill Rev Stats (1939), c 38, § 393. The section read:

In case of a second conviction of the offense of petty larceny by any person over the age of eighteen years, the punishment shall be by imprisonment in the penitentiary for a term of not less than one year and not exceeding three years; and on the trial under an indictment for petty larceny, a duly certified copy of the record of a former conviction and judgment of any court of record in this State, for a like offense against the party indicted, shall be prima facie evidence of such former conviction, and may be used in evidence against such party; Provided, that such former conviction and judgment shall be set forth in apt words in the indictment. (Emphasis supplied.)

This statute was on the books from 1874 until its repeal effective January 1, 1962. It is highly significant, we believe, that the penalty paragraph of section 16-1 of the Criminal Code of 1961 (quoted above), which replaced the old section 393, carried over the concept of increased penalty for repeated offenses, but dropped the requirement that the former conviction be pleaded in the indictment. This legislative action took place subsequent to the Hightower decision in which the court seemed to say that it would welcome a legislative release from the need to uphold the practice of pleading prior convictions.

More specifically in regard to Hightower, the legislature amended the very section of the statute involved in that case, to provide that “ [a] former conviction of a subsequent offense shall not be alleged in the information or indictment, as the case may be, and no evidence or other disclosure of such conviction shall be presented to the court or the jury during the trial of the principal offense unless otherwise permitted by the issues properly raised in such trial.” Ill Rev Stats (1959), c 38, § 192.28-38c; now found at c 38, § 22-43, Ill Rev Stats (1963).

Meanwhile, also, the barbaric Habitual Criminal Act, which required the setting forth of prior convictions in the indictment, was first softened in 1957 by amendment to prohibit such pleading (similar to the Narcotics Act amendment the same year), and then repealed altogether in 1963. Ill Rev Stats (1957), c 38, §§ 602, 603.3; and (1963), c 38, § 126-1.

The Hightower opinion referred to the case of People v. Boykin, 298 Ill 11, 131 NE 133. The decision, as distinguished from some of the opinion language, in that case is not contrary to our determination of this question. There an information was brought under an ordinance which prohibited pandering and provided aggravated penitentiary penalties for repeated offenses. The information did not allege any prior conviction under the ordinance, and was filed in the Municipal Court which would not have had jurisdiction to impose a penitentiary sentence. The decision of the Supreme Court upheld a jail sentence and fine.

Under the practice, as we now envision it pursuant to the current statutory scheme, prior convictions for theft would not and should not be alleged in an indictment, and no proof thereof should be received before conviction of the current offense. In appropriate cases, however, it would still be open to the State to prove such prior crimes after conviction for the purpose of enabling the court to impose the proper statutory penalty. This kind of proof falls squarely within the language of section 1-7 (g) (Ill Rev Stats (1963), c 38, § 1-7 (g)) relating to hearings in aggravation or mitigation, and it is our strong belief that that is the only appropriate place and time for such proof. It would have to be borne in mind by a State’s Attorney that in following this procedure the aggravated penalty could not be imposed unless the prosecution for the current offense had been based upon indictment rather than information or complaint. Ill Rev Stats (1963), c 38, § 111-2(a).

The other grounds for enhanced punishment (property exceeding $150 in value and theft from the person) do not present any question of prejudice to a defendant in the course of trial, and we are unable to find any legislative declaration of public policy which would indicate that they should not continue to be alleged in the indictment and proved in the principal case.

In conclusion, this court’s order of November 24, 1965, reversing defendant’s conviction and remanding the cause for a new trial is vacated, the conviction is affirmed, and the sentence is reduced to not less than one nor more than five years in the Illinois penitentiary.

Affirmed with reduced sentence.

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

       The statutory definition of the crime as related to this case reads as follows:
      A person commits theft when he knowingly:
      (a) Obtains or exerts unauthorized control over property of the owner;
      . . . and
      (1) Intends to deprive the owner permanently of the use or benefit of the property; or
      (2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
      (3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.

       The same situation obtained under the prior statute. Ill Rev Stats (1959), c 38, §§ 387, 389. There were not distinct crimes of “grand larceny” and “petty larceny,” the distinction being only the difference in facts determinative of appropriate punishment. See People v. Swinson, 406 Ill 233, 237, 92 NE2d 758.

       Prior to enactment of this statute it was necessary for a reviewing court to remand the cause to the trial court in order to reduce a sentence. See People v. Wesley, 30 Ill2d 131, 136, 195 NE2d 708.

       The record further discloses that in 1958 defendant was charged in Cook County with larceny of an automobile, but on a reduced charge of criminal trespass was sentenced to six months in the County Jail; and that in May, 1964 defendant was charged with theft involving shoplifting and was placed under supervision for a year, of which period only about two months had passed when defendant committed the crime which is the subject of the present case.

       Indictment could, of course, be waived.


author: ALLOY, P. J.

text:
    In the Matter of the Estate of Benedict T. Cullen, Deceased. Emma E. Cullen, Petitioner-Appellant, v. Charles B. Cullen, Executor of the Last Will and Testament of Benedict T. Cullen, Deceased, Respondent-Appellee.
    Gen. No. 65-57.
    Third District.
    December 30, 1965.

      Berry & O’Conor, of Streator, for appellant.
    R. A. Powers, of Streator, for appellee.
   ALLOY, P. J.

The cause before us arose as a result of a petition filed in the Probate Division of the Circuit Court of LaSalle County for appointment of appraisers and fixing and allowance of a widow’s award to Emma E. Cullen as the surviving spouse of the deceased, Benedict T. Cullen. Just before the marriage of the parties in 1959, the petitioner and decedent had executed a premarital agreement which contained the following provisions:

“2. The party of the second part expressly agrees that in case she shall survive the party of the first part, she will make no claim to any part of his estate as surviving widow, and the party of the second part hereby expressly waives and relinquishes all right of dower and homestead in and to the real estate of which the party of the first part may die seized and possessed and hereby waives and relinquishes all rights in and to any real or personal estate of the party of the first part, as surviving widow, heir-at-law, or otherwise. It is expressly agreed that this provision shall apply not only to real and personal property owned by the party of the first part on the date of this agreement but to any real or personal property hereafter acquired by the party of the first part.”
“3. It is expressly hereby declared that the parties to this agreement intend, by this agreement, to provide that all property of the party of the first part, real or personal, whether now owned by him or hereafter acquired by him, shall, at his death, descend to his heirs at law (exclusive of the party of the second part), legatees or devisees as though said marriage had not taken place, and that the party of the second part shall take no share of the estate of the party of the first part unless it shall be expressly so provided in his last will and testament, and then only to the extent so provided in said instrument.”

The decedent left a last will and testament in which he stated that his Executors should pay his debts, funeral expenses and taxes, and that all the rest, residue and remainder of his property was to go to his children. The will also contains the following recital:

“I have heretofore entered into a pre-nuptial agreement with my present wife, Emma E. Cullen, which in substance provides that neither of us shall share in or make any claim to any part of the estate of the other unless some share shall be expressly provided in the last will and testament of either of us and then only to the extent so provided in said instrument, and I hereby expressly omit any provision for my said wife in this will.”

The cause was heard on a stipulation of facts by the court without a jury and the only question before the court was whether by execution of the premarital agreement, petitioner (surviving widow) waived her right to a surviving spouse’s award. The Trial Court entered judgment denying the petition and expressly held that the premarital agreement of the parties constituted the waiver of the widow’s award on the part of the petitioner.

On appeal in this court, Petitioner contends that she is entitled to the surviving spouse’s award and that the premarital agreement does not waive her right to this award for the following reasons:

1. She contends that the statute relating to surviving spouse’s award allows the award to the surviving spouse unless it has been expressly waived by such surviving spouse. In support of this contention it is pointed out that there is no express language which in so many words contains a waiver of the spouse’s award, in the premarital agreement.

2. Appellant contends that if the court should conclude that the statute does not require an express waiver of the award in order to bar it, the premarital agreement should be interpreted as not being sufficiently broad to constitute a waiver on the part of the widow of her right to the award by implication.

While there is no exact precedent on the particular issue before us, the courts of this state have considered and dealt with a number of closely related problems. It has been established fundamentally in this state that where there is no fraud or concealment, and where there are no minor children of the decedent, the right to a surviving spouse’s award may be barred by a fair antenuptial agreement (Kroell v. Kroell, 219 Ill 105, 76 NE 63; Pavlicek v. Roessler, 222 Ill 83, 78 NE 11). In the case of Kroell v. Kroell, supra, the antenuptial agreement recited that the female partner to the marriage agreement conveyed and quitclaimed to the male partner “all interest I may acquire, by virtue of such marriage, in and to all his property, both real, personal, and mixed, now in his possession or that he may hereafter acquire, renouncing forever all claim” in law, equity or curtesy, dower, homestead, survivorship or otherwise. In that case, the court held that the widow’s award was barred by the agreement although there was no specific mention of widow’s award as such. The court pointed out that the contract included all rights acquired by either one of the parties who should outlive the other in property or estate of the other, and even though not expressly stated, clearly embraced and was intended to embrace the widow’s award. The court indicated that the contract was sweeping in its terms and included every interest that the petitioner acquired in or to the property of her husband by virtue of the marriage and every interest which she would become entitled to upon his death in case she survived him.

In Pavlicek v. Roessler, supra, where the parties were of mature years (as is true in the instant case) and there was no child born of the marriage of decedent and the surviving widow, the court pointed out that the contract provided for a release by the intended wife of all her right and interest of any kind or nature whatsoever and especially her contingent right to dower and homestead, in her intended husband’s real estate and that she would not sue for, claim or demand any right of dower or other interest whatsoever in the real estate of her intended husband. It also contained a recital that she released and relinquished to her intended husband, all right, title and claim to any distributive share or portion of his personal estate with the same language that she would not sue for, claim or demand any distributive share or interest to which she might be entitled as surviving widow or wife of the intended husband in or to any of the personal estate of which he might die possessed. The court pointed out that where the widow is the only person interested, an antenuptial agreement fair in its provisions by which she relinquishes the widow’s award may be enforced against her and this may be true even where the award is not relinquished by the use of those very words, provided the contract makes use of other language sufficiently comprehensive to include the award. It was observed by the court that the contract in the case before it did not contain a release of the widow’s award by specific mention but that it was very broad in its terms and included a release of every right in or to the property of the husband which the widow may have acquired by virtue of the marriage. The court concluded that the contract was a bar to a widow’s award in favor of the surviving widow under such circumstances.

An illustration of the type of case in which the court determined that the language was not sufficiently broad to constitute a waiver of widow’s award is Yockey v. Marion, 269 Ill 342, 110 NE 34. There the antenuptial agreement made certain provisions for the wife and contained a recital that she accepted such provisions in lieu of and in bar of “dower or thirds” which she might be entitled to out of the property either real or personal of the deceased husband. The court there concluded that the language was not sufficiently broad to constitute a waiver of the widow’s award since it expressly provided only for a satisfaction and bar of “dower or thirds.”

Since most of the basic decisions to which we have referred were determined prior to 1939, a consideration of the language of the Probate Act of 1939 becomes pertinent to determination of the issue before us. In that Act (Ill Rev Stats 1963, c 3, § 182) it is provided expressly as follows: “The surviving spouse is entitled to the award unless the will of the decedent expressly provides that the provisions thereof for the surviving spouse are in lieu of the award and the surviving spouse does not renounce the will.” Under the Administration Act of 1872 which this section replaced, it was provided that the right of a widow to her award should in no case be affected by her renouncing or failing to renounce the benefit of the provisions made for her in the will of her husband or otherwise. The question which is, therefore, before this Court is specifically whether the quoted section of the Probate Act of 1939 changes the Illinois law as developed in the cases to which we have referred (such as Kroell v. Kroell, supra, and Pavlicek v. Roessler, supra) and whether the change is such that broad language in an antenuptial contract such as we have in the case before us does or does not effectively waive a widow’s award.

In support of the. contention that specific language is required to bar the widow’s award, Appellant cites the cases of In re Estate of Guttman, 349 Ill App 58, 110 NE2d 87, and In re Estate of Ulreh Vogt, Deceased, 10 Ill App2d 333, 134 NE2d 816. The following language appears in the case of In re Estate of Guttman, supra:

“Rose Blair does hereby forever waive and release any and all rights which she, as the wife or widow of Samuel Guttman, might otherwise have either as dower in the real estate of Samuel Guttman, or by virtue of any statutory provision made for her benefit in lieu of dower, or might have to a distributive share in any personal property of Samuel Guttman, under any statutes now or hereafter in force and effect.”

The court in that case pointed out that the same rule of construction applies to antenuptial agreements as to wills, as shown in the case of Pavlicek v. Roessler, supra. It is also observed by the court that the widow’s award is a statutory allowance and where it is neither released in terms nor by language sufficiently broad to include it, it should not be regarded as relinquished (citing Yockey v. Marion, supra). In discussing the issue, the court in the Guttman case points out that in Kroell v. Kroell, supra, and Pavlicek v. Roessler, supra, the language of the agreement was very broad and sweeping and the court could find from the language so used that it was the intention of the parties that the widow’s award should be waived. In the Guttman case, the court pointed out that the antenuptial agreement before it was limited to such right as the widow might have as dower in real estate or by virtue of a statutory provision in lieu of dower or in a distributive share in personal property of the estate. Under those circumstances the court rightly concluded that it could not read into such language a release of widow’s award. This is consistent with the holding in Yockey v. Marion, supra, hereinabove referred to. Similarly, In re Estate of Ulreh Vogt, Deceased, supra, the agreement attempted to relieve the husband of his responsibility to support his wife and the court held that the agreement was void as against public policy even though the court there did comment on the change in the Probate Act and observed that an antenuptial agreement does not bar a widow’s award unless the agreement expressly so provides. In neither the Guttman case nor the Vogt case, however, did the court have occasion to pass upon an antenuptial agreement containing language as broad and all-inclusive as the language in the case at bar or to apply the Probate Act provision discussed in this opinion, to such agreement.

An editorial observation on this subject is contained in James Illinois Probate Law and Practice at Section 182.1 (Pages 315 and 316) where it is stated as follows:

“Section 182 of the Probate Act provides that the surviving spouse is entitled to her award unless the will of the decedent expressly provides that the provisions thereof for the surviving spouse are in lieu of the award and she does not renounce the will. It will be observed that the section uses the words ‘expressly provides.’ In the author’s judgment these words do not require that the will must necessarily use the term ‘surviving spouse’s award’ in order to bar the surviving spouse from receiving an award, but rather contemplates that there must be sufficiently clear language in the will to evidence an intention ... to deprive the surviving spouse of the award . . .”

The author there concludes that the use of the words “widow’s award” or “surviving spouse’s award” is not required where the language indicates an intention to bar the award. In the antenuptial agreement which we have under consideration, it is expressly provided that if the widow shall survive “she will make no claim to any part of his estate as surviving widow . . . and hereby waives and relinquishes all right in and to any real or personal estate of the party of the first part as surviving widow, heir at law, or otherwise.” The agreement also provides:

“It is expressly hereby declared that the parties to this agreement intend, by this agreement, to provide that all property of the party of the first part, real or personal, whether now owned by him or hereafter acquired by him, shall, at his death, descend to his heirs at law (exclusive of the party of the second part), legatees or devisees as though said marriage had not taken place, and that the party of the second part shall take no share of the estate of the party of the first part unless it shall be expressly so provided in his last will and testament and then only to the extent so provided in said instrument.”

It is apparent from such language that it was the intention of the parties that the surviving widow would in fact “make no claim” to any part of decedent’s estate as surviving widow and that his property, real and personal, would descend to his heirs at law as though the marriage had not taken place. It is clear that the parties intended to bar all claim of every kind and nature which could be asserted at death by reason of survivorship of the widow even though the exact language “widow’s award” or “surviving spouse’s award” was not used. Petitioner has contended that since the antenuptial agreement could not be used to bar a debt, it could not be said to bar the widow’s award since it is also a debt of the estate. It is noted, however that in the antenuptial agreement, the petitioner waives any claim “as surviving widow.” It is clear that the claim for the widow’s award would certainly arise only by virtue of the fact that it would be asserted “as surviving widow.”

The precedents in this state indicate that language of the character we have before us would clearly act as a bar to a surviving spouse’s award prior to the Probate Act of 1939 referred to. The language of such Act is not of such character as to require the use of the words “widow’s award” or “surviving spouse’s award” in order to bar the claim for widow’s award if it is obvious from the broad language used in the antenuptial agreement that it was actually the intention of the parties to bar a widow’s award or surviving spouse’s award. The language of the antenuptial agreement in the case before us expressly and in simple terms states that petitioner would make no claim as surviving widow and that she waives and relinquishes all rights as surviving widow and that the beneficiaries of the decedent’s will would receive his property as though the marriage had never taken place. To hold that the language of such agreement did not sufficiently express the intention of the parties to bar the widow’s award would be a distortion of the language and ordinary rules of construction as well as a departure from the precedents heretofore determined in this state.

We, therefore, conclude that the judgment of the Circuit Court of LaSalle County was proper and should be affirmed.

Affirmed.

STOUDER and CORYN, JJi, concur.


author: MR. JUSTICE DAVIS

text:
    Ruby E. Olson, Plaintiff-Appellant, v. Peter H. Olson, Defendant-Appellee.
    Gen. No. 65-66.
    Second District.
    December 30, 1965.

      George Spitz, of DeKalb, and Tyler and Peskind, of Aurora (George Spitz and Lloyd J. Tyler, of counsel), for appellant.
    Leifheit & Cliffe, of DeKalb (Daniel L. Cliffe, of counsel) , for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal, by plaintiff, from a divorce decree entered in her favor, with reference to its provisions regarding property rights and alimony. Plaintiff seeks a reversal of that part of the decree which awarded the household furnishings to her in lieu of alimony, and which decreed that the last half of the 1963 taxes on plaintiff’s 172-acre farm in DeKalb County and the interest on the mortgage thereon to March 1, 1964, were the joint obligations of both parties.

Plaintiff contends that the farm was operated as a partnership; that one-half of the mortgage indebtedness thereon, which was incurred during the marriage, is the defendant’s obligation; and that the defendant should be decreed to pay one half thereof either as alimony or in settlement of property rights.

It is the defendant’s contention that no partnership existed in connection with the operation of the farm; that the funds of the parties were so commingled that it was impossible to determine the amount of money spent for farm business purposes and for living expenses; that the mortgage indebtedness was the result of the plaintiff’s personal expenditures and her contribution to the living expenses of the family unit; and that since the defendant has no interest in the farm, he should not be held liable for one half the mortgage thereon.

The plaintiff, a widow with three young daughters, and the defendant, who had one daughter, were married July 21, 1948. As issue of the marriage, a daughter, Deborah Olson, was born. They all lived together as a family unit, apparently without differentiation in the treatment of the children. The decree for divorce was entered December 9,1964.

At the time of the marriage, plaintiff owned a 120-acre farm in DeKalb County, which she sold in 1952, for $54,000. In November of 1951, she purchased the 172-acre DeKalb County farm which she now owns, and title thereto was taken in the DeKalb Trust and Savings Bank, as Trustee, with plaintiff as the beneficiary under this land trust. Plaintiff had other funds and, with the aid of a temporary advancement from her father, paid for the farm with her own money. She testified that she had approximately $8,000 left after buying the 172-acre farm, which sum was deposited in her personal account, but eventually went into the common account of the parties; and that at the time of the trial the farm was probably worth $750 per-acre, or $129,000.

Thereafter, in 1954, plaintiff encumbered this farm for $25,000 without the knowledge or signature of the defendant, and used this money to buy á house, which was subsequently sold for $24,000. Plaintiff testified that this sum was likewise deposited in her personal account and subsequently transferred into the common account. To clear up the interest due on the $25,000 loan and to pay other outstanding debts, a new mortgage was placed on the farm in 1961, in the sum of $35,000. Both plaintiff and defendant signed this mortgage and note, and the balance presently due thereon is $33,000.

Plaintiff testified that she had a complete line of furniture when the parties were married in 1948; and that when she purchased the 172-acre farm in 1951, plaintiff and defendant purchased additional furniture located at the farm, and got a bill of sale for it. The record contains no further evidence concerning the acquisition of further items of furniture.

The parties operated the farm as a grain and stock farm. In addition, the plaintiff worked as a secretary, and the defendant did carpentry work between 1961 and 1963. These earnings also went into the common account. The defendant had no bank account other than the common account.

The testimony is at variance relative to the machinery which was purchased in connection with the operation of the farm, but it appears to have been a full line of farm machinery. The bulk of the machinery, which plaintiff owned at the time of the marriage, was old and obsolete. The new machinery was paid for from the common account.

The plaintiff kept the records and made the deposits, but she did not keep a set of books. While both parties drew checks on the common account, plaintiff also maintained a separate account. When she sold the house aforementioned, the proceeds were placed in her separate account. She testified that she transferred sums therefrom to the common account, from time to time, to meet family and farm expenses, but offered no evidence as to the time and amounts of such transfers.

The farm operation apparently did not prosper. In seven out of eleven years, for which tax returns were available, the farm operated at a loss. The losses were largely due to a break in prices which caused cattle feeders across the country to suffer financial difficulties. However, such losses also reflected depreciation on the buildings and equipment which accounted for about one half thereof.

The defendant built a 24' x 82' addition to the farm house on the 172-aere farm, which he estimated to cost $10,000. He was not paid for his work, and the materials were paid for from the common account. On the same basis, he repaired the corn crib and put a new roof on the machine shed. In certain instances he had to have help in connection with such work, and he. repaid that labor in kind to the neighbors who assisted him.

During the marriage, the cost of a new car, farm machinery, insurance, cattle, feed, seed, fertilizer, living and medical expenses, personal items, the costs of four weddings for members of the family unit, as well as taxes, and principal and interest on the mortgage,'were paid from the common account. The testimony indicates that neither plaintiff nor the defendant were extravagant in their personal expenditures.

Confronted with the maze of unidentified figures covering such expenses, and in the absence of books of account, the trial Court, after hearing and considering the evidence, entered a decree for divorce; awarded the custody of the minor child to plaintiff and directed the defendant to pay $20 per week for her support; set visitation hours for the defendant; awarded the plaintiff all of the household furnishings as her sole property in lieu of alimony; ordered the farm machinery owned by the parties to be their joint property, with each party having an undivided one half interest therein; ordered that the decree for divorce shall in no way affect the lease between the parties whereby plaintiff’s farm was leased to defendant; ordered that the common bank account with a balance of $428.57 be divided equally between the parties; awarded the 1955 Qldsmobile to plaintiff and the 1951 Chevrolet to the defendant; and ordered that the last one half of the 1963 taxes and the interest payment on the mortgage to March 1, 1964, be the joint obligation of the parties—each party being liable for one half thereof.

As between the parties, the question of the existence of a partnership relation is largely one of intent. In the absence of a written partnership agreement, as in the case at bar, the question of whether it was the intention of the parties that an agreement or arrangement constitute a partnership, must be determined from the language and conduct of the parties and from all the facts and circumstances surrounding the transaction. Peck v. Peck, 16 Ill2d 268, 280, 157 NE2d 249 (1959); Englestein v. Mackie, 35 Ill App2d 276, 288, 182 NE2d 351 (1st Dist 1962); Cline v. Cline, 12 Ill App2d 231, 234, 235, 139 NE2d 828 (4th Dist 1956).

The following factors are material in determining the existence of a partnership: the manner in which the parties have dealt with each other; the mode in which each has, with the knowledge of the other, dealt with persons in a partnership capacity; whether they have filed with the county clerk, a certificate setting forth the name of the partnership, in event the firm name does not include the true name of the persons transacting such partnership business (Ill Rev Stats 1965, c 96, pars 4-8a); whether they have carried telephone listings and signs on trucks, etc., using the firm name; and whether they have shared the profits of the partnership. Rizzo v. Rizzo, 3 Ill2d 291, 299, 300, 120 NE2d 546 (1954); Englestein v. Mackie, supra, 288; also see Section 7 (2), (3) and (4) of the Uniform Partnership Act (Ill Rev Stats 1965, Chap 106%, par 7(2), (3) and (4)).

The record is replete with evidence that no partnership existed or was contemplated by the parties. Plaintiff did not deal with defendant as a partner in the handling of funds, some of which were deposited in her personal account and others in the common account—according to her fancy. The account, as shown by the checks, was merely a joint account of plaintiff and defendant upon which either could draw checks. It was not a partnership account. Neither of the parties, with the knowledge of the other, dealt with others in a partnership capacity. There is no record of the parties doing business under any partnership name. They carried no listings, telephone or otherwise, and had no signs indicating a partnership business or the use of a firm name. The record does not show that they filed partnership income tax returns. There is no record of the sharing of any profits or losses. The maintenance of a personal bank account by plaintiff and her sole business operation in the purchase of the farm indicate that, to her, the farm venture was not a partnership. In addition, her complaint for divorce, by separate count, or otherwise, did not allege the existence of a partnership or seek its dissolution.

The plaintiff and defendant, as husband, and wife and parent, were engaged in the joint venture of supporting, rearing and educating a family. The funds for this purpose, part of which were kept in a common account, were derived from farming, cattle raising, and the personal endeavors of both plaintiff and defendant aside from their farm efforts. However, special agreements or arrangements, for particular joint undertakings and adventures, do not constitute a partnership.

Even if the parties were partners, the plaintiff could not maintain an action at law against the defendant upon a demand growing out of the partnership, until the partnership accounts had been settled and a balance struck. Milligan v. Mackinlay, 209 Ill 358, 360, 70 NE 658 (1904); Carter v. Wright, 275 Ill App 224, 228 (4th Dist 1934). Such procedure had not been attempted herein.

Plaintiff further urges that defendant should be ordered to discharge one half of the $33,000 mortgage debt on her farm. She argues that in the absence of such order, plaintiff must pay the debt and then demand contribution from defendant as co-obligor on the mortgage note.

However, we do not believe that it is within the contemplation of the divorce decree that, as between the parties, the defendant is liable in any respect.with reference to the $83,000 farm mortgage. He did not know of the original mortgage or note on the farm until after their execution, and he did not sign them. It was only when the incumbrance was increased to $35,000 that the defendant was asked to sign. He had no interest in the farm, beneficial or otherwise, other than as husband of plaintiff and a party in possession. It is apparent that he signed the mortgage and note, as requested, to cut off any possible rights which he might have in and to said premises, and to further secure the payment of the note.

The mortgagee is not a party to this proceeding and the decree herein can have no binding effect on it with reference to the obligation of the parties to it, but as between themselves, we find that it was the intent of the decree to relieve the defendant of all obligation to pay any part of said note, by contribution or otherwise, except as therein provided. The question before us is the propriety of this portion of the decree.

We recognize that it has frequently been held that a cotenant, who pays more than his share of a debt, principal or interest, secured by a mortgage on the commonly owned property, is entitled to reimbursement by contribution from his cotenants to the extent to which he paid their share of the indebtedness. Annotation 48 ALR2d 1305; 26 Am Jur Sec 79, p 704. However, plaintiff and defendant here were not cotenants in the ownership of the farm. The plaintiff was the sole beneficial owner thereof and the defendant had no interest therein. Plaintiff has cited no law, and we have found none, holding that she is entitled to contribution under the faets of this case.

Plaintiff further urges that, under the equities of the case, the defendant should be ordered to pay one half of the mortgage in that after 16 years she ended up with a $33,000 jointly created debt against her farm. However, the defendant contributed to the worth of the farm through building an addition to the house and repairing its buildings, and he helped to support her and her three daughters and to educate the daughters. His gain from this venture was age and experience, while plaintiff acquired a 172-acre farm, which, according to her estimate, is worth $129,000, subject to an indebtedness of $33,000. At the time of the marriage of the parties, plaintiff owned a 120-acre farm, free of encumbrance, which she subsequently sold for $54,000. Thus, the existing equities do not make a very impressive case for the plaintiff.

The Court below acted within the powers vested in it in entering the decree appealed from herein (Ill Rev Stats 1965, c 40, pars 18 and 19), and the only question before us is the propriety of the provisions of the decree appealed from. The trial Court heard the evidence and saw the witnesses; it was its duty to make the necessary determination of facts; and its findings are presumed to be correct. In re Estate of Wolfner, 58 Ill App2d 423, 429, 207 NE2d 724 (1st Dist 1965). The evidence was ample to support the findings of the trial Court and it is not for us to substitute our findings for those of the Court below unless such findings are clearly and manifestly against the weight of the evidence. Stevens v. Fanning, 59 Ill App2d 285, 294, 295, 207 NE2d 136 (2nd Dist 1965). Such is not the circumstance in the case at bar.

Accordingly, the decree of the Circuit Court is affirmed, and pursuant to the authority vested in this court by section 92 (1) (e) of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 92(1) (e)), the last paragraph of said decree is hereby expanded, and it is hereby ordered, as between plaintiff and defendant, that the defendant is relieved of all obligation to pay any part of the $35,000 mortgage note, upon which the balance remaining unpaid is $33,000, by contribution or otherwise, except as provided in said decree.

Decree affirmed and expanded.

ABRAHAMSON, P. J. and MORAN, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Willard LaVerne Triplett, Plaintiff in Error.
    Gen. No. 65-125.
    Second District.
    December 30, 1965.
    Rehearing denied January 21, 1966.

      Thomson, Thomson & Mirza, of Bloomington (Jerome Mirza, of counsel), for plaintiff in error.
    William G. Clark, Attorney General, of Springfield (William R. Nash, State’s Attorney, of Rockford, Fred G. Leach, Assistant Attorney General, and John W. Nielsen, Assistant State’s Attorney, of counsel), for defendant in error.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Defendant, whom a Winnebago County jury found guilty of the murder of his brother, Donald Edward Triplett, sued out a writ of error in the Supreme Court to review the original judgment of conviction whereunder he was sentenced to life imprisonment. He had abandoned a prior writ of error in that court, apparently in favor of a post-conviction proceeding in the trial court. Defendant’s 1961 petition under the Post-Conviction Hearing Act (Ill Rev Stats 1961, c 38, pars 826-832) was dismissed by the Circuit Court as insufficient to require a hearing, and the Supreme Court denied a writ of error to review that judgment (People v. Triplett, Memorandum Order 3307). See 33 Ill2d 155, 210 NE2d 522.

In considering the effect of the denial of said writ of error and in transferring the cause to this court, the Supreme Court stated at page 156:

“. . . As a consequence, all constitutional questions sought to be posed here are barred (People v. Lewis, 2 Ill2d 328, 330; followed in Merkie v. People, 15 Ill2d 539; People v. Byrd, 21 Ill2d 114, 115; People v. Powers, 22 Ill2d 174, 175; People v. Dampher, 28 Ill2d 136, 137), and no basis exists warranting initial review by this court.
“We are mindful that an earlier motion by the State to transfer the cause was denied, but further examination of the jurisdictionál situation compels the conclusion that this disposition of the motion was improvident. Accordingly, and for the foregoing reasons, the cause is transferred to the Appellate Court for the Second District for a determination of the remaining nonconstitutional questions.”

Subsequently, in the case of The People v. Holland, 33 Ill2d 246, 211 NE2d 265, in discussing the effect of the dismissal of 1952 and 1956 Post-Conviction Hearing Act petitions, the court stated at page 248:

“The petition was dismissed without an evidentiary hearing and defendant did not seek to review the judgment of dismissal. In 1956, represented by counsel of his choice, he filed a similar petition, incorporating by reference all of the allegations of the 1952 petition. This petition was likewise dismissed and again the defendant did not petition this court for a review of the judgment of dimissal.
“The prior denials of the post-conviction petitions are res judicata of all claims raised therein and of all constitutional claims which could have been raised and the constitutional claim now advanced cannot be considered on this writ of error, (People v. Dampher, 28 Ill2d 136). There is therefore no basis for direct review by this court and the cause is transferred to the Appellate Court for the Second District for consideration of the remaining issue. See People v. Triplett, No. 38752, decided this term.”

It is apparent from the Triplett and Holland cases, that the Supreme Court regarded all constitutional questions posed in the Triplett case as barred, and left for our consideration the remaining nonconstitutional points raised in the review of the judgment of conviction.

These points are: (1) that the results of a polygraph or “lie detector” test are inadmissible in evidence and when brought to the attention of the jury, are prejudicial and constitute reversible error; (2) that the exclusion of competent material evidence is reversible error where the verdict might have been different if such evidence had been admitted; and (3) that the accused may, and should be permitted to introduce evidence in rebuttal of that introduced by the prosecution. A consideration of these points does not require full reference to the facts in connection with this charge of murder. For brevity, only the essential facts pertaining to the alleged errors will be recited.

The defendant filed a motion for new trial and a motion in arrest of judgment, but failed to assign in such post-trial motions any error with reference to his taking a polygraphic examination or the disclosure of the results thereof. Such failure constituted a waiver of this point. Where the grounds for a motion for new trial are stated in writing, as in the case at bar, a reviewing court is limited to a consideration of the errors alleged in the written motion and all others are deemed to have been waived. The People v. Baker, 8 Ill2d 522, 524, 134 NE2d 786 (1956).

The basic reasons underlying such rule are succinctly stated in The People v. Brand, 415 Ill 329, 114 NE2d 370 (1953) at page 337:

“It is a rule of universal application that the reversal of a judgment cannot be urged upon a ground not submitted to the trial court and upon which it did not and was not asked to decide. Cummings v. People, 211 Ill 392.”

The remaining errors charged by the defendant pertain to the exclusion of evidence which the defendant contends was competent. During the trial of this case, Deputies Ferona and Iasparro, while testifying in rebuttal for the prosecution were asked in cross-examination whether they told the defendant that he was too drunk to remember what had happened on the morning of September 7. Particularly, they were asked whether these statements were made to the defendant in the interrogation room in the County Jail and while in the presence of personnel from the local television station. Both witnesses categorically denied making such statements.

Defendant called a witness in surrebuttal to prove that both Ferona and Iasparro at said time and place had made such statement. The State objected to the questions asked of the witness in this respect on the ground that it was not proper surrebuttal evidence. The court sustained the objection and commented that the alleged statement was not in rebuttal of anything Ferona had said.

Defendant cites The People v. Heilemann, 362 Ill 322, 199 NE 792 (1936) as authority for the proposition that the above evidence was improperly excluded. However, that case is only authority for the rule that great latitude is allowed in proving intent where intent is an essential element of the crime charged. It is not authority for the proposition that a witness may be impeached on immaterial or collateral matters.

The test of admissibility of evidence in connection with the crime charged is whether the offered testimony tends directly to show that the accused is guilty of the crime. Any circumstance may be put in evidence which may tend to make the proposition at issue appear more or less probable. However, if the evidence under consideration would tend to raise collateral issues and thus confuse the jury, rather than assist it, in reaching a proper verdict on the merits of the case, the evidence should be denied. The People v. Strause, 290 Ill 259, 290, 291, 125 NE 339 (1919).

The test of collateralness is: could the fact for which the testimony is offered in contradiction have been shown in evidence for any purpose independently of this contradiction. The People v. Pfanschmidt, 262 Ill 411, 462, 463, 104 NE 804 (1914). The question of whether deputies Ferona and Iasparro told the defendant that he was too drunk to remember what happened on the morning of September 7 is of itself collateral to the issue before the court, namely: was the defendant guilty of the murder of his brother as charged in the indictment. The court properly ruled that such surrebuttal testimony was inadmissible. This question was not in issue. Dalton v. The People, 224 Ill 333, 336, 337, 79 NE 669 (1906).

If drunkenness were to be raised by the defendant as a defense to negative the existence of intent to kill the decedent, it could not be raised by surrebuttal evidence which was purely hearsay in nature. Such evidence, if any, should have been offered by defendant, or a witness on his behalf, as direct testimony in the presentation of his defense, and not in surrebuttal to impeach or contradict the testimony of witnesses for the State.

In the case at bar, the defendant did not urge intoxication as a defense to the charge of murder against him. Consequently, it would have been error to permit the State to introduce evidence to prove that defendant was so intoxicated that he could not entertain the required intent to commit murder. In Addison v. The People, 193 Ill 405, 62 NE 235 (1901), at pages 409 and 410, the court, in discussing such circumstance, stated :

“Voluntary intoxication furnishes no excuse for crime. (Crim Code, div 2, sec 19.) The law holds men responsible for the natural consequences of their acts, and if all the elements of a crime are present it is no defense that the accused was voluntarily drunk. But if a crime is of such a nature that a particular intent is a necessary ingredient, and no crime is committed unless an act is done with that intent, a defendant may meet the charge of a crime by showing that he was intoxicated to such a degree as to be incapable of forming or entertaining that intent, and neither then nor afterward yielded it the sanction of his will. (Bishop on Crim Law, sec 413; Bartholomew v. People, 104 Ill 601.) Such proof is to show that an indispensable element of the crime was wanting. In this case the crime alleged consists of an assault with intent to commit the crime of rape. There must be an attempt joined with that specific intent, and the intent is a necessary ingredient of the crime. The defendant made no claim that he was incapable of forming any intent that his acts may have manifested, and made no defense on the ground of drunkenness. The People were called upon to prove the assault and the intent as matters of fact, and it was in making their proof that they were permitted to introduce the evidence that defendant had been drinking, was intoxicated and treated the boy. These facts had no tendency to prove either the assault or the intent with which it was made. If the drinking was to excess, it might prove an intent to become intoxicated; but there is no ground for saying that the fact the defendant had formed an intent to get drunk (if such was the fact,) would tend to prove that he had also formed an intent to commit the crime of rape.
“As a general rule, where a party is on trial upon a criminal charge, proof of his misconduct not connected with the charge upon which he is being tried should not be admitted, as such evidence is likely to prejudice the jury against the defendant and cause them to lose sight of the issues which they have been sworn to try.”

In addition, the defendant urges that since the trial court did not admit this surrebuttal testimony in evidence, the jury found the defendant guilty of murder. Such contention is a nonsequitur and does not require answer due to our finding that the evidence was properly excluded.

We find no error in the nonconstitutional questions raised in this appeal. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: JUSTICE MORAN

text:
    The People of the State of Illinois, Appellee, v. Eugene F. Shockey, Appellant.
    Gen. No. 64-111.
    Second District.
    January 3, 1966.

      John R. Snively, of Rockford, for appellant.
    William R. Nash, State’s Attorney, and Alfred W. Cowan, Jr., Assistant State’s Attorney, both of Rockford, for appellee.
   JUSTICE MORAN

delivered the opinion of the court.

We are asked to review a decision of the Circuit Court of Winnebago County in a burglary case. Our review leads us to the inescapable conclusion that the judgment of the trial court is correct and should be affirmed.

In the early evening of March 11,1964, Porter Shockey, the younger brother of Eugene F. Shockey, drove the defendant to a location in the city of Rockford near the Pryor Packing Company plant. Several hours later Porter Shockey met the defendant at their home and the defendant asked him if he wanted “to go in on some check writing.” The brothers agreed and drove to a location near by the Pryor Packing Company where they removed a check protector and a book of blank checks from a truck. The defendant told his brother that he had obtained the checks and the protector from the Pryor Packing Company. The defendant then filled out several checks in the presence of his brother and cashed two checks. Two days later the defendants were stopped by a police officer and they attempted to flee, throwing the check protector and the checks out of the car window. They were immediately apprehended and the defendant was subsequently indicted for the crimes of burglary and forgery. The burglary charge is the only matter presented by this appeal.

The defendant brings various errors to this court and we will consider them in the order of their presentation to us.

First, the defendant finds fault with the indictment in that it did not recite the selection and swearing of the grand jury and that the- grand jury presented the indictment on oath. It is true that the indictment in the present cáse did not contain complete information in its caption, however, it has been repeatedly held that the essential elements of the offense must be charged in the body of the indictment and that the caption is not a part of the indictment for these purposes. People v. Sellers, 30 Ill2d 221, 196 NE2d 481 (1964).

The defendant next alleges that the indictment was insufficient because it did not state an offense and particularly that it did not specify the time and place of the offense. The indictment charged that on the 12th day of March, 1964, the defendant committed “the offense of Burglary in that he, without authority, knowingly entered into the building of Samuel L. Pryor and Joseph Ciembronowicz, a partnership, doing business as Pryor Packing Company, located at 3 Harrison Avenue, Rockford, Illinois, with intent to commit therein a theft, in violation of Paragraph 19-1, Chapter 38, Illinois Revised Statutes.” It will be noted that all of the elements of the crime are present and the only issue is whether or not the time and place of the offense are set forth with sufficient clarity.

This argument has been finally put to rest by the recent decision of our Supreme Court, wherein Justice Solfisburg, Jr., speaking for the court, stated that the allegation of date and county in the charge was sufficient compliance with section 111-3 (a) (4) of the Code of Criminal Procedure. The case referred to is People v. Blanchett, 33 Ill2d 527, 212 NE2d 97.

The defendant next contends that he was prejudiced because of remarks of the trial judge. We have studied the entire record and find no remarks of the trial judge requiring a reversal. In almost every case it is possible to take some remark out of context and out of the heat of a trial and find possible prejudice. It is one thing to consider these isolated remarks in the tranquil atmosphere of an appellate tribunal and quite another thing to consider them in the whole context of an actual trial. It is apparent from a reading of the entire record that the remarks were a result of severe provocation on the part of the defendant’s counsel.

The defendants next allege that evidence of subsequent and separate offenses was admitted. In fact, certain of the checks were admitted and identified as checks prepared and cashed by the defendant. As indicated, the defendant has also been indicted for forgery in connection with these same checks.

The checks were not offered or admitted to prove forgery. On the contrary, the checks were offered for the limited purpose of identifying the defendant and indicating his intent in connection with the burglary. The trial court admonished the jury that the checks had been admitted for a limited purpose. The defendant was entitled to have a jury instruction to that effect but failed to offer any such instruction.

As a general rule, evidence of other offenses is ordinarily inadmissible. A recognized exception to the general rule exists where the evidence tends to aid in the identification of the accused as the person who committed the particular crime charged. People v. Lewis, 30 Ill2d 617, 198 NE2d 812 (1964). There was no error in the admission of the checks in this case since they fall well within the exception to the general rule. Defendant’s counsel could have protected his client by a jury instruction in addition to the trial court’s cautionary remarks. However, he failed to do so.

The defendant next contends that the principal witness for the State, namely Porter Shockey, the brother of the defendant, was compelled to give evidence against himself in violation of his constitutional privileges. In fact, the witness was given immunity by the State’s Attorney orally, right on the witness stand prior to testifying. Without regard to the validity of this procedure, it is clear that the privilege is personal to the witness and cannot be raised by the defendant or anyone else other than the witness. The defendant cannot complain if detriment is suffered by someone else. Therefore, we conclude that this issue may not be raised by this defendant.

Several weeks after the conclusion of the trial, the defendant filed an affidavit executed by his counsel asserting that one of the jurors was guilty of misconduct in that he fell asleep during the trial. Anyone who reads the entire record will find this hard to believe. What the defense lacked in merit, it more than made up in volume and it seems incredible that anyone would have been able to sleep through the trial. In any event by failing to call the trial court’s attention to the matter at the time it occurred counsel has waived his objection. People v. Nachowicz, 340 Ill 480, 172 NE 812 (1930), People v. Ford, 19 Ill2d 466, 168 NE2d 33 (1960).

The defendant next contends that the proof was insufficient to identify the accused and to convict him of the crime of burglary. It is true that the evidence was largely circumstantial. That is not unusual and it does not constitute grounds for reversal in and of itself. In this case the defendant had possession of the stolen articles. He admitted to his brother that he had taken them from the Pryor Packing Company. Upon his. apprehension he attempted to flee. In view of all of the circumstances the jury could easily conclude, as it did, that the defendant was guilty of the crime of burglary. We find no reasonable doubt in this record of the defendant’s guilt.

The defendant lastly contends that the sentence of five years to fifteen years handed down by the trial court is excessive and should be reduced by this court. While we have the power to reduce the sentence, we cannot overlook the fact that the trial judge saw the defendant and heard all of the testimony. He is in a better position to appraise the situation and determine which sentence will best serve the interests of society. Therefore, we should not intercede, absent a clear and substantial ground. The defendant has not suggested any reason for this court to exercise its power. If this is a case where this court should reduce the sentence, then we should be told about it. Absent ''such a declaration, we cannot and will not intercede with the findings of the trial judge.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Borneman (Impleaded), Defendant-Appellant.
    Gen. No. 64-156.
    Second District.
    January 3, 1966.

      Bellows, Bellows & Magidson, of Chicago, William C. Erbecker, of Indianapolis, Indiana, and Thomas A. Keegan, of Rockford, for appellant.
    William R. Nash, State’s Attorney, and William R. Nively, Assistant State’s Attorney, both of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant, William Borneman, along with an accomplice, was indicted on two counts for burglary and a third count for theft. He was found guilty by a jury on the first count of burglary in that he “without authority, knowingly entered into the telephone booth building . . . , with intent to commit therein a theft. . . .”

On appeal he claims that the evidence was insufficient to prove him guilty, beyond a reasonable doubt, that he was not charged with a crime in that a telephone booth is not a building within the meaning of the word as used in section 19-1 of the Criminal Code of 1961, that the trial court erred in its conduct toward the defendant’s chief witness, that the prosecutor presented prejudicial argument and that the trial court erred in refusing to give one of the defendant’s tendered instructions.

The prosecution offered evidence which, although circumstantial, would justify the finding that the appellant and his accomplice broke into the coin box of a public telephone located in an outdoor telephone booth in Loves Park, Illinois. The evidence further disclosed that they then removed the coin receptacle and coins and later threw the receptacle away. Shortly thereafter, they were apprehended in a motel and found to be in possession of over $2,000 worth of nickels, dimes and quarters. They also possessed slugs.

The defendant did not testify in the trial. A defense witness testified that he had seen the defendant and his accomplice with two strangers involved in a card game in which a large amount of change was used, and that one of the strangers had stated to the witness that he and the other stranger were in the vending business.

We are first confronted with the question of whether or not a telephone booth is a “building” within the meaning of the word as used in section 19-1 of the Criminal Code of 1961 which provides:

“A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, housetrailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.”

The telephone booth in question was approximately seven feet tall, had three walls, a door and a roof. It was permanently attached to a concrete slab by four bolts. The phone booth housed a telephone which contained a coin receptacle used to collect the coins received from persons making phone calls.

Although we find no decision in this jurisdiction directly in point, we do find some early Illinois Supreme Court cases that have passed upon the question before us, namely, what constitutes a building under the burglary statute. In 1898, the court in the case of Gillock v. People, 171 Ill 307, 49 NE 712, held that a chicken house, sixteen foot square with doors, windows and a tin roof, that housed chickens, was a building as used in the burglary statute. A later case spelled out the definition of what constituted a building under the statute by holding that a partially constructed tool shed met the requirements, People v. Gillespie, 344 Ill 290, 176 NE 316 (1931), wherein at page 294 the court said:

“A building, within this act, has been defined as a fabric, structure or edifice, such as a house, church, shop or the like, designed for the habitation of men or animals or for the shelter of property; a structure.” (Emphasis added.)

In the case of Bruen v. People, 206 Ill 417, 69 NE 24 (1903), the court stated an additional element to the definition above at page 423:

“It must be permanent. . . .”

Therefore, we find that there are three elements necessary in defining what constitutes a “building” as used in the burglary statute, being Ill Rev Stats Ch 38, sec 19-1 (1961). First, that it be a structure, edifice or fabric; second, that it be designated for the habitation or shelter of men, animals or property; and third, that it be permanent. The outdoor telephone booth as shown by the evidence in this case meets the definition and requirements set forth. Having reached this conclusion, we, therefore, join other jurisdictions who have found outdoor telephone booths to be “buildings” within the purview of burglary statutes. See People v. Miller, 95 Cal App2d 631, 213 P2d 534, 536; People v. Clemison, 105 Cal App2d 679, 233 P2d 924, 926; Sanchez v. People, 142 Colo 58, 349 P2d 561; Perry v. State of Florida (Fla), 174 So2d 55 (1965).

Notwithstanding the foregoing, we find that prejudicial error was committed during the trial requiring a reversal of the judgment and remanding the case for a new trial. The defendant, as already stated, did not testify. We find counsel for the defendant tendered the following instruction:

“The Court instructs the jury that the fact that the defendant, William Lester Borneman, did not testify in this case does not create any presumption of guilt against him and should not have any influence upon you in arriving at your verdict.”

which the trial court marked “Tendered-Covered.” The instruction was not given to the jury. The record further discloses that the prosecutor, during the closing argument, commented:

“I submit to you that they are guilty of the crimes we have charged them with, and there is only one verdict in the case, and that’s one of burglary. Our case stands undented by these defendants.”

The state argues that two of the defendant’s instructions that were given covered the principle of law omitted by the refusal to give the aforesaid instruction. The two instructions claimed to alleviate the error were:

“The Court further instructs the jury that every person charged with a crime and upon trial for the same in the State of Illinois and the United States of America is presumed to be innocent.
And in this regard, the Court further instructs the jury that such presumption of innocence is not a mere idle form to be disregarded by the jury at will, but is a substantial part of the law of the State of Illinois, and is of itself sufficient upon which a jury may acquit the defendants unless and until the State of Illinois shall have proved the guilt of the defendant beyond all reasonable doubt and to a moral certainty and as charged in the counts of the indictment in this case.”
and
“The Court further instructs the jury that the burden of proof in this case is not upon the defendant to prove himself innocent of the charges made against him in the indictment in this case;
And in this regard, the Court instructs the jury that the burden of proving the guilt of the defendant beyond all reasonable doubt and to a moral certainty is at all times in this case upon the People of the State of Illinois, and, in arriving at your verdict and in weighing the evidence in this case, the jury should adhere strictly to such rule and none other.”

We disagree. We believe the defendant was entitled to have the jury instructed outright on this particular point and not by inference or implication. People v. Greben, 352 Ill 582, 186 NE 162 (1933), People v. Moorelander, 25 Ill2d 309, 185 NE2d 166 (1962), Ill Rev Stats Ch 38, sec 734 (1963). The error, especially when considered in light of the State’s Attorney’s comments was prejudicial and a new trial is required.

It is not necessary for us to comment upon the other matters urged for reversal. The judgment of the Circuit Court of Winnebago County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ABRAHAMSON, P. J. and DAVIS, J., concur.