author: MR. PRESIDING JUSTICE DEMPSEY

text:
    La Salle National Bank, a National Banking Association, as Trustee Under Trust Agreement Dated May 28, 1963, and Known as Trust No. 31046, Plaintiff-Appellee, v. Village of Palatine, Defendant-Appellant.
    Gen. No. 52,169.
    First District, Third Division.
    February 23, 1968.

      Wooster, Mugalian, Thomas & Klingner, of Chicago (Richard A. Mugalian and Charles C. Wooster, of counsel), for appellant.
    Leonard Bosgraf, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a zoning case involving the validity of the Village of Palatine’s zoning ordinance as it affects certain property held in trust by the plaintiff. The trial court declared the ordinance unconstitutional and void in its application to the property and the Village appeals.

The plaintiff’s land consists of three adjoining lots located at the southeast corner of the intersection of Palatine and Quinten Roads. Palatine runs east to west and Quinten north to south. The land is vacant, is slightly depressed, and has approximately 150 feet of frontage on Palatine Road and 157 feet on Quinten.

This corner is also the extreme northwest corner of both the Village and a twelve-block subdivision which is classified as an R-2 single-family dwelling district under the Village’s zoning ordinance. This subdivision contains 240 lots of which, at the time of trial, 222 had been developed with single-family residences. Of the remaining 18 vacant lots, two lie immediately east of the subject property on Palatine Road and one is directly south on Quinten Road.

i The property faces unincorporated areas of Cook County on both the west and north. To the north is a forty-acre tract of land which, with the exception of one dwelling, is entirely vacant and has a ditch running through a portion of it. This tract is zoned R-5 (multiple dwelling) under the County zoning ordinance. To the east of this tract are multifamily dwellings.

To the west of the plaintiff’s property is a wooded area and to the west of this there is a tavern housed in a residential-type structure. The tavern is on a four-hundred foot deep lot, is situated approximately 250 feet from Quinten Road, and has its entrance on Palatine Road. Slightly southwest of the tavern is a lot which is used for the parking of trucks; the entrance to this parking lot is on Crescent Avenue — a block to the west of Quinten. North across Palatine Road from the tavern is a yard used by a construction company for the storage of material and equipment. It has a row of evergreens fronting on Palatine Road and it appears that only the back portion of the lot is devoted to storage purposes. All of these uses are nonconforming, the land being zoned R-4 (single-family residence) under the County zoning ordinance. East of the storage yard, near the northwest comer of the Palatine-Quinten intersection, is a single-family residence.

In an unincorporated area a mile or two south of the property on Quinten there are two industrial complexes. Approximately three-quarters of a mile north of the property on the east side of Quinten is a manufacturing company situated upon property so zoned. According to a comprehensive land use plan adopted by the Village in 1964, if it should ever annex the unincorporated acreage north of the plaintiff’s property on Palatine Road it would zone part of the acreage abutting on the east side of Quinten for manufacturing purposes. If it should ever annex the unincorporated acreage on the west side of Quinten, part of the area fronting on Quinten would be developed as a shopping center.

If the present zoning is invalidated the plaintiff will sell the property to an oil company which plans to erect a modern, landscaped service station on the site with four pumps and underground facilities for the storage of 16,-000 gallons of gasoline. Both Palatine and Quinten Roads are two lanes wide. The average weekday traffic at the intersection according to a 1963 count was 5,000 vehicles on Palatine and 2,000 on Quinten. The closest gasoline stations are at least one mile distant. There are two at this distance to the east and one to the north. The nearest station to the west is five miles away; the record does not show whether there is a station to the south.

The expert witnesses for the plaintiff testified that the highest and best use of the property would be for a gasoline station because: there were no other stations within a mile of the property; the property was situated at a major intersection; the nonconforming uses in the unincorporated area lent a commercial aura to the property; the Village’s comprehensive plan revealed a shopping center might be erected directly west of the site; the land had remained vacant for years, and the lots were part of an older type subdivision.

The beneficiary of the land trust purchased the property in 1963 and was aware of its residential zoning at that time. He testified that the property could be developed for residential purposes, but that it would not be the best use. There is no indication in the record as to how much he paid for the property, but one of the plaintiff’s witnesses testified that its market value was $9,000 for single-family residence use. The oil company agreed to pay $35,000 for it if rezoning would permit its use for a gas station.

The expert for the Village testified that the surrounding area was primarily residential in nature; that a gasoline station would be an unwarranted intrusion into the vicinity which would retard residential growth and violate sound planning, principles; that the roads intersecting at the corner of the property were “collector” streets serving the surrounding expanding residential districts, and that the best use would be to convert the present three lots into two single-family residence parcels. Two nearby homeowners testified in substance that they had purchased their property in reliance upon the residential zoning of the area and that both the value of their property and the desirability of residing on it would be diminished by the existence of a service station on the corner lots.

The plaintiff injected another factor into this case. Its evidence disclosed that two of the corner lots were subject to a restrictive covenant limiting the ownership and use of the property to members of the Caucasian race. This covenant was inserted in two deeds executed in 1928 and one executed in 1931. It does not appear in deeds thereafter although there were subsequent transfers. In addition to the above covenant, the aforementioned deeds also contain the following:

“Subject to the following restrictions:
“Zoning and building ordinances.
“Above described lots shall be known as business lots. . .”

The covenant restricting the ownership and use of two of the lots to Caucasians is meaningless. Such clauses are judicially unenforceable. Shelly v. Kraemer, 334 US 1, 92 L Ed 1161, 68 S Ct 836 (1947). The covenant declaring that the realty should be known as business lots carries little weight. First, the covenant does not limit the use of the land. Restrictive covenants are to be stringently construed and any doubts or ambiguities must be resolved in favor of natural rights and against restrictions. Piper v. Reder, 44 Ill App2d 431, 195 NE2d 224 (1963). The language in the two deeds does not restrict the use of the property, but merely states that the lots shall be known as business lots. This language cannot be interpreted as a limitation upon the use of the property. Another factor supporting this construction is that the racial covenant was not only explicit as to the use of the property but it also included a provision for reversion to the heirs of the grantors if the covenant was broken. Having used such language in conjunction with that covenant, it would seem logical that if the grantors intended a restriction upon use in the present covenant they would have inserted precise language to that effect and would have also included a reversion provision therein. This they did not do. Second, if it were to be assumed that the language does in fact constitute a restrictive use, the deeds themselves provide that the restriction is subordinate to zoning or building ordinances. Where covenants impose restrictions which are less severe than the restrictions of a zoning ordinance, the provisions of the ordinance will control and become superior in force to the less restrictive provisions of the covenants. Cf. II Yokley, Zoning Law and Practice, § 20-4 (3rd ed 1967); II Metzenbaum, Law of Zoning, c X-d (2d ed 1955).

The Village’s comprehensive use plan while entitled to consideration is not controlling. Ill Rev Stats (1965), c 24, § 11-12-6, authorizes municipalities to formulate comprehensive use plans for their areas. In doing so, a municipality is permitted to include in the plan all unincorporated, contiguous property within a mile and a half of its boundaries. The statute provides, however, that these plans are advisory only and may not be construed to regulate or control the use of private property. Such comprehensive plans may be altered at any given moment. Moreover, even if such a plan is not changed, it is quite possible that a municipality will be unsuccessful in annexing the adjacent territory and will therefore be unable to apply its zoning laws to the property.

A presumption exists in favor of the validity of a zoning ordinance and the one who attacks it has the burden of overcoming the presumption by clear and convincing evidence that, as to his property, the ordinance is arbitrary and unreasonable and without substantial relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962) . Among the factors to be considered in determining the validity of a zoning ordinance are the character of the neighborhood, the classification and use of nearby properties, the extent to which property values are diminished by the particular restriction, the suitability of the subject property for the zoned purposes and the gain to the public as compared to the hardship on the property owner. People ex rel. Larsen v. City of Chicago, 24 Ill2d 15, 179 NE2d 676 (1962); Tillitson v. City of Urbana, 29 Ill2d 22, 193 NE2d 1 (1963). Of these, the most important is the zoning and use of the surrounding property. Maywood Proviso State Bank v. Village of Berkeley, 55 Ill App2d 84, 204 NE2d 144 (1965); Colvin v. Village of Skokie, 54 Ill App2d 22, 203 NE2d 457 (1964). In examining the surrounding property a court must take into consideration the zoning and use of nearby property outside the limits of the municipality which has enacted the ordinance. Berger v. Village of Riverside, 69 Ill App2d 148, 216 NE2d 479 (1966); Gordon v. City of Wheaton, 12 Ill2d 284, 146 NE2d 37 (1957).

The plaintiff’s property is surrounded on all four sides by residences or by vacant land zoned for residential and multiple-family development. The industrial complexes to the south and the manufacturing plant to the north are so far removed that they do not infringe upon the residential complexion of the neighborhood, and the close-by nonconforming uses have little discernible effect upon the plaintiff’s property. The presence of nonconforming uses does not automatically invalidate zoning (Trendel v. Cook County, 27 Ill2d 155, 188 NE2d 668 (1963) ) for their existence can be assumed in any area. LaSalle Nat. Bank v. City of Chicago, 68 Ill App2d 412, 216 NE2d 224 (1966).

The amount of traffic on the intersecting roads is not particularly heavy. The increase in traffic which can be presumed to have taken place since the 1963 traffic count is a problem confronting every community and is not peculiar to Palatine and Quinten Roads. Property fronting on a highly traveled state highway, although suited for commercial use, can properly be zoned residential if the surrounding neighborhood is predominantly residential. Herzog Corp. v. City of Des Plaines, 3 Ill2d 206, 119 NE2d 732 (1954). The fact that the property’s value will be enhanced if a gasoline station is permitted does not justify the conclusion that the ordinance is confiscatory. Liberty Nat. Bank v. City of Chicago, 10 Ill2d 137, 139 NE2d 235 (1956).

Every zoning case must be decided on its own facts. People ex rel. Selvaggio v. Village of River Grove, 68 Ill App2d 383, 216 NE2d 218 (1966). The evidence in the present case falls short of overcoming the presumptive validity of the ordinance. The best that can be said for the plaintiff’s evidence is that it may raise a reasonable difference of opinion as to the ordinance’s validity and, under such circumstances, the judgment of the legislative body must prevail. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201 (1963).

The judgment is reversed.

Reversed.

SCHWARTZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    City of Rockford, a Municipal Corporation, Plaintiff-Appellant, v. Melvin Maxwell, Defendant-Appellee.
    Gen. No. 67-90.
    Second District.
    February 23, 1968.
    John W. Nielsen, of Rockford, for appellant.
    Haye and Keegan, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The City of Rockford, herein referred to as City, appeals from a judgment finding the defendant, Melvin Maxwell, not guilty of violating a city ordinance.

The ordinance in question makes it unlawful for any resident of the City to drive a motor vehicle upon the public ways of the municipality without first obtaining a license for said vehicle. All such licenses, by ordinance, expire on the 31st day of May following the date of issuance.

There being no verbatim transcript of evidence available, a proposed report of proceedings in accordance with Supreme Court Rule 323(c) was filed herein which disclosed that on February 8, 1967, the defendant, an employee of Chas. Ind Co., an Illinois corporation, was driving a truck owned by the corporation within the geographic boundaries of the City without said license and was arrested.

At the bench trial before a magistrate, the City called the arresting officer who testified that the truck was without a city vehicle tag and that 1415 Point Avenue is located within the confines of the City of Rockford. The City then introduced into evidence, over the objection of the defendant, a publication issued by the Secretary of State of Illinois entitled “The Certified List of Foreign and Domestic Corporations for the Year 1966,” where at page 371 the following entry was made:

Chas. Ind Co. Chas. Ind-1415 Point Avenue, Rockford
Point Ave. R.R. #1 Louise Poivey, 1415 Point Avenue, Rockford
Rockford Chas. Ind

Neither this exhibit or a copy of the same is to be found in the record.

The defendant, without objection, introduced into evidence a copy of the registration card of the vehicle issued by the Secretary of State. This exhibit indicated the address of Chas. Ind Co. to be 5548 Warehouse Road. The defendant’s only witness, Chas. Ind, testified that at this address there is a warehouse in which vehicles are stored and that the address is not within the confines of the City. On cross-examination, the City attempted to determine the place from which vehicles owned by the corporation were dispatched but the magistrate sustained the defendant’s objection to such inquiry.

On the reverse side of the traffic ticket and complaint, under which this cause was tried, there appears the following written statement signed by the magistrate:

“Not Guilty — testimony and evidence presented indicated vehicle in question was registered (verified) at 5548 Warehouse Rd. on February 2, 1967 — (outside limits of City of Rockford) Court also notes arrest was made on Feb. 8, 1967.” [Emphasis added.]

It is contended by the appellant (1) that a motor vehicle assumes the legal residence of its owner and the evidence in this case established the owner of the truck (Chas. Ind Co.) to be a resident within the City of Rockford ; (2) in the alternative, that the trial court committed reversible error by restricting cross-examination.

The City argues that the residence of a corporation is the address of its registered agent; that the Secretary of State’s certified list disclosed the address of the registered agent in this case to be 1415 Point Avenue, Rockford, Illinois; that the evidence is uncontradicted that such address is within the corporate limits of the City, and therefore, the trial court’s holding was contrary to the law.

The defendant admits that the address of the registered agent of an Illinois corporation determines the residence of that corporation; however, he claims that the certified list introduced in this case was not determinative of residence because it did not cover the time in question, that is, the date of the offense.

The certified list of domestic corporations is compiled from annual reports filed by such corporations in this State as provided by sections 95 and 96 of the Business Corporation Act (Ill Rev Stats 1965, c 32, §§ 157.95 and 157.96). Section 155 of the Business Corporation Act (Ill Rev Stats 1965, c 32, § 157.155) provides as follows:

“The Secretary of State shall publish on or before November first of each year a list of corporations filing an annual report for the preceding year in accordance with the provisions of this Act, which report shall state the name of the corporation and the respective names and addresses of the president, secretary, and registered agent thereof and the address of the registered office in this State of each such corporation. . . .” (Emphasis added.)

It should be noted at this time that the address of the registered office and the registered agent of a corporation must be identical. (Ill Rev Stats 1965, c 32, § 157.-11(b) and § 157.12(f)).

Section 12 of the Business Corporation Act (Ill Rev Stats 1965, c 32, § 157.12) provides for the filing of any change of address of the registered agent with the Secretary of State and further provides that a duplicate original of such change shall be filed with the recorder of deeds of the county in which the registered agent was situated prior to the change.

The certified list in this case, which was allowed into evidence over objection, was the only proof offered by the City touching upon the residency of the corporation. However, all that this list divulged was that Chas. Ind Co. had its registered agent within the City during the year 1965, which was the year preceding the date of publication, and did not show the corporation to be a resident of the City on February 8, 1967, the date of the offense.

Since the parties have agreed that the residence of a corporation is the address of its registered agent, and since the residence of the corporation that owned the vehicle is a necessary element of proof in order for the City to collect a license fee (Ill Rev Stats 1965, c 95½, § 32a), it became incumbent upon the City to prove, not only that the corporation was a resident within its boundaries but, also, that it was a resident at the time of the offense. This proof must be by a clear preponderance of the evidence in order to enforce any penalty for a violation of its ordinance. City of Highland Park v. Curtis, 83 Ill App2d 218, 228, 226 NE2d 870 (1967); City of Chicago v. Williams, 45 Ill App2d 327, 329, 195 NE2d 425 (1963); City of Chicago v. Carney, 34 Ill App2d 303, 305-306, 180 NE2d 729 (1962). We are of the opinion from the evidence in this case that the City failed to meet this burden of proof.

We are of the further opinion that, even though the magistrate’s conclusion was arrived at incorrectly, by basing his holding upon the address shown on the registration card, still the judgment must be upheld due to the insufficient proof offered by the City in its casein-chief. Where a decision of a court is correct, it will not be reversed because an incorrect method was used in arriving at the ultimate result. It is of no consequence that the trial court may have stated a wrong reason therefore, because the judgment may be sustained upon any ground warranted by the record, irrespective of whether the particular reasons given or the specific findings are correct. Monarski v. Greb, 407 Ill 281, 291, 95 NE2d 433 (1950); Miller v. Chicago Transit Authority, 78 Ill App2d 375, 381, 223 NE2d 323 (1966) ; Adamaitis v. Hesser, 56 Ill App2d 349, 358, 206 NE2d 311 (1965); In re La Rue’s Estate, 53 Ill App2d 467, 475, 203 NE2d 47 (1964).

The City has relied on its second alleged error only in the alternative. In its brief it states “that in the event that this Court holds, as did the trial court, that registration of a motor vehicle controls the residency requirement of the ordinance being interpreted, then and only then, this Court should remand the cause for a new trial. . . .” Because we have not held that a corporation’s residence is determined by the address shown on its motor vehicle registration card, there is no need to respond to this point.

For the reasons hereinbefore stated the judgment of the magistrate court of Winnebago County is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Guy J. Ramirez, (Impleaded), Defendant-Appellant.
    Gen. No. 51,072.
    First District, Second Division.
    February 27, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Martin Liszka, Paul DeMario and the instant defendant-appellant, Guy J. Ramirez, were jointly indicted for the offenses of robbery and murder. Defendant was prosecuted separately before a jury which returned verdicts of guilt as to both offenses on November 10, 1965. Defendant, accordingly, was sentenced to serve concurrent terms of from five (5) to ten (10) and of from fourteen (14) to fifteen (15) years in the Illinois State Penitentiary as per the respective counts. Subsequent to the return of the jury’s verdicts, defendant offered oral motions in arrest of judgment and for a new trial, both of which were denied, and from which denial he brings this appeal.

Defendant pursues his appeal upon the multifold theory: (1) that error was committed below in the denial of defendant’s motion to suppress his two confessions, both having been the involuntary product of psychological coercion by police authorities; (2) that both such confessions being substantially identical, the admission into evidence of the two was cumulative in nature and prejudicial; and (3) that the prosecution failed to adduce sufficient proof to establish either the corpus delicti of the crime charged or defendant’s guilt beyond a reasonable doubt. In response, it is the State’s theory that each of the aforesaid elements upon which defendant predicates his appeal is devoid of foundation in fact or law.

A full pretrial hearing was conducted below on defendant’s motion to suppress the confessions. The uncontradicted portions of the testimony elicited by the State revealed that defendant and coindictee, DeMario, had been apprehended at defendant’s home in the late evening hours of August 25, 1965, for questioning in regard to an August 15th strong-armed robbery, which fact was, at that time, made known to defendant. The arrest is admitted to have been made without a warrant, it likewise appearing that the identity of the alleged victim of the crime (John Baird) was not disclosed until sometime later. Defendant was thereafter transported to the Area 5 Headquarters and placed in overnight custody, without being questioned, in the 14th District lockup where he admits to having remained alone and undisturbed until sometime around 9:00 a. m. the following morning. At this juncture however, the State’s version of the events of that day (August 26th) leading up to and culminating in the first of defendant’s two written and signed confessions was contradicted by the testimony of the accused.

The State’s principal witnesses in this regard were Police Officers Cody and Mahoney, both of whom claimed to have been the sole participants in defendant’s interrogation. The two witnesses, without qualification, each denied having made or observed any threats of force or promises of leniency relative to defendant, or to having engaged in any forms of psychological coercion upon his person. As to the duration of their interrogative efforts, both related that defendant had been first questioned briefly regarding the Baird robbery at 9:00 a. m. for a period of approximately a half hour. Thereafter, the accused was taken to police headquarters at 11th and State for a scheduled 11:00 a. m. polygraph examination to which he had consented. Cody added that he had remained with defendant throughout his stay at 11th and State and that, to his knowledge, defendant was not again questioned until approximately 4:00 p. m. that afternoon shortly after his return to Area 5.

On cross-examination, Cody could not recall whether he had personally informed defendant that he would be permitted to make a telephone call or that he had a right to presence of counsel. Cody, however, explained that there were numerous signs to that effect posted throughout the Area 5 building, and that Officer Mahoney had directed defendant’s attention to them. Mahoney’s testimony made a similar acknowledgment, further stating that upon the witness’ suggestion, defendant had arisen from his chair in the interrogation room, walked over, and appeared to have read one of these signs for about a minute. Mahoney testified that the posted signs were in conformity with the requirements of an Illinois statute.

At the afternoon interrogation, Mahoney admits to having told defendant in effect that when he was defendant’s age a policeman has helped him out at a time when he needed help, and that it was best to tell the truth. Defendant adhering to his claim of innocence, Mahoney testified that he then informed defendant of John Baird’s death earlier that day, advising him that now a murder, not just a robbery, was involved. It was at this point that defendant first gave an oral statement implicating himself in the offense. Cody accounted that defendant gave his inculpatory statement approximately 30 to 40 minutes after the questioning had resumed at 4:00 p. m., State’s witness Gloria Williams, an Area 5 stenographer, adding that she had transcribed defendant’s remarks shortly after 5:30 p. m. and observed defendant affixing his signature thereto. Mahoney asserted that defendant had, at no juncture, made any request to see a lawyer or to make a telephone call.

Testifying in his own behalf, defendant told the court that at the time of the foregoing events he was 18 years of age, that he could speak English, and that the extent of his education was the completion of one year of high school. Defendant claimed to have never been apprised of his constitutional rights to remain silent and to consult an attorney, nor informed that he could make a telephone call. He further maintained to have not been fed until the evening of August 26th nor ever afforded the opportunity to examine the posted signs advising of his rights in the matter.

Defendant stated that the questioning lasted almost the entire day under the direction of different persons. He asserted that, at one point, an unidentified policeman had endeavored to trip him as he walked down a corridor to an interrogation room, overhearing someone at that time suggest that they beat him up for what he did to Baird. Having been made fearful and nervous by such tactics, defendant claims to have uttered his incriminating statement only after being further frightened by the revelation that Baird had died and by the suggestions of Officer Mahoney that he tell the truth because the police had five witnesses to prove that he was lying. In rebuttal, Mahoney denied ever having told defendant that only DeMario and not he could be held accountable for the murder.

Defendant’s second confession had been taken in his mother’s presence by Assistant State’s Attorney, George Murtaugh, at 8:00 p. m. that same evening. Murtaugh testified as to having obtained some food for defendant and of having fully advised him of his rights before securing defendant’s statement. Defendant on appeal, however, does not question the propriety of the circumstances attendant the taking of this latter confession. As against his motion to suppress, defendant argues only that by the precedent of People v. Thomlison, 400 Ill 555, 81 NE2d 434 (1948), a second confession, ostensibly valid in all respects, suffers from the same unlawful constraints by which the first was obtained, and hence both must fail for want of voluntariness. It was from within this factual context that defendant’s motion was considered by the court below and denied.

The principle of law for which defendant offers People v. Thomlison, supra, of course, finds no application in the case at bar lest we upset the trial judge’s finding of voluntariness as to the first confession. Upon our inquiry into the nature of that initial statement, the question of its competency is a matter long reserved for the trial court to alone decide, the voluntary character of which, moreover, need not convince the court to that degree foreclosing all reasonable doubt. Accordingly, in passing upon the entirety of circumstances surrounding the rendition of that confession, our court will lend considerable credence to the findings of the trial judge who saw and heard the witnesses as to matters of credibility. It is a determination which will not ordinarily be disturbed on review, absent some abuse of judicial discretion or unless shown by the attacking party to be contrary to the manifest weight of the evidence. People v. Hudson, 38 Ill2d 616, 233 NE2d 403 (1968); People v. Hall, 38 Ill2d 308, 231 NE2d 416 (1967); People v. Spencer, 27 Ill2d 320, 189 NE2d 270 (1963). Viewed from such perspective in reviewing the record before us, we have found substantial evidence supporting the finding of voluntariness, evidence adequately demonstrating the absence of any psychological overbearance as would be tantamount to a form of coercion or inducement.

While the scope of the preliminary hearing is, to a degree, dependent upon the facts peculiar to the case, the instant proceedings, having postdated June 22, 1964, are agreed to have been within the realm of applicability of the constitutional guidelines enunciated in Escobedo v. Illinois, 378 US 478 (1964). The principles established in Miranda v. Arizona, 384 US 436 (1966), however, do not so attach, the commencement of the proceedings here antedating its effective date of prospective application. Johnson v. New Jersey, 384 US 719 (1966); People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). Hence, as to the Miranda dictates requiring adequate warnings relative to rights to counsel, to remain silent, and the use of statements in evidence against the accused, failure to comply therewith in the case at bar would not per se, render defendant’s confession inadmissible. Rather, they are deemed factually “significant attendant circumstances” for the court to consider in conjunction with the question of voluntariness. People v. Hudson, supra; People v. Kirk, supra.

Here, that question was resolved in the affirmative upon the trier of fact’s belief in the State’s version of the case. It is a determination the record here on review will not permit us to disturb. There is no dispute but that defendant had not been interrogated during his overnight confinement. The two interrogation sessions themselves were for relatively brief periods of time, separated from one another by a span of about six hours, and conducted by what would appear to not have been an overwhelming number of persons, all of which is uncharacteristic of the classical case of coercion. Defendant stated that he could speak English, acknowledging the existence of posted informational signs in the Area 5 building (denying only that he read them), which signs Officer Mahoney attested conformed to the requirements of the statute. See Ill Rev Stats 1965, c 38, par 103-7. The two officers’ testimony further corroborated that defendant, in fact, had been directed to and personally viewed the contents thereof. Under such circumstances, this court does not understand Escobedo as tainting an otherwise voluntary confession because the State did not, as such, affirmatively caution the accused of such rights. People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964) ; People v. Miller, 33 Ill2d 439, 211 NE2d 708 (1965).

Defendant, in essence, makes no claim to the involuntariness of his confession because of threats of physical force, but rather as the end result of a mind overborne by subtle tactics designed to instill fear or induce reliance. Yet defendant does not assail the statements of advice by Mahoney or his revelation of Baird’s death as calculated falsehoods. Such remarks being mere statements of truth uncoupled with some intimation of compromise, we cannot deem them sufficient to evidence an inducement which produced an involuntary acknowledgment of complicity in the questioned offense. People v. Pugh, 409 Ill 584, 100 NE2d 909 (1951); People v. Hartgraves, supra.

Unlike Escobedo, there is no testimony of record which would indicate that the accused ever requested and was denied an opportunity to make a telephone call or to seek the advice of counsel. Similarly, while the State offered no testimony to refute defendant’s claim to having not been fed until approximately 8:00 p. m. that day, it does not appear that defendant ever made a request for food. This is not to say that it was incumbent upon defendant to make the request in the first instance. It was simply another relevant factor taken together with defendant’s age, education, and arrest without a warrant, the sum total of which not of itself sufficient to render the confession inadmissible, and of which the trial judge was cognizant in rejecting defendant’s motion. People v. Hudson, supra; People v. Melquist, 26 Ill2d 22, 185 NE2d 825 (1962).

We similarly can find no prejudicial abuse of discretion in the admission into evidence of both confessions. While the State concedes the two to have been almost identical in substance, they submit, and we agree, that the second was offered, not for its cumulative value, but rather to corroborate the suspected nature by which the first was alleged to have been obtained, as it affected its credibility. Inasmuch as defendant’s failure to complain of the circumstances surrounding his second confession supports the State’s position on the issue, we feel the two were properly admitted below as competent evidence of defendant’s guilt. People v. Witherspoon, 27 Ill2d 483, 190 NE2d 281 (1963); People v. LaCoco, 406 Ill 303, 94 NE2d 178 (1950). Defendant’s case of People v. Burson, 11 Ill2d 360, 143 NE2d 239 (1957) is inappropriately taken on this point. There an unsigned written statement was introduced into evidence subsequent to State offered testimony relative to certain oral admissions made by the accused. Unlike the case at bar, the latter evidence was of dubious authenticity, the admission of which could have been of little or no corroborative force but for its cumulative effect upon the jury.

Defendant, citing People v. Jones, 22 Ill2d 592, 177 NE2d 112 (1961), next assigns as error the failure of the prosecution to prove beyond a reasonable doubt that Baird’s demise had been the product of the criminal agency of some person/s. Such a contention we find to be factually unsupported by the record. The State called Dr. James Henry, Chief Pathologist for the Cook County Coroner, who fixed the medical cause of Baird’s death as aspiration pneumonia, but, however interjecting that in his opinion the underlying cause therefor, as revealed by his autopsy, had been severe injury to the brain. Elaborating on the subject, the witness stated that his external examination of the deceased disclosed extensive contusions or bruises on the neck, the upper portions of the chest, and over both cheeks of the face which he deemed the cause of the brain damage. On cross-examination, the doctor did, in fact, concede that the named injuries could have resulted from a fall, yet on redirect, qualifying that remark by stating that it would have been almost anatomically impossible for the said injuries to have been occasioned by such a trauma because of the total absence of injury to the deceased’s nose structure, one of the most prominent and hence exposed features of the face.

Testimony for the State furthermore described the scene of the alleged offense, Baird’s apartment, as having been discovered in a “bloody shambles” by the investigating officer. The room was depicted as having the contents of numerous open drawers scattered over the floor, Baird’s eyeglasses lying broken upon a nightstand, with the bed in which he was found covered with coagulated blood. Marie Grant, who had known and been in the deceased’s employ for about 2% years, described Baird as a slight man in his late seventies, a little over five feet tall and weighing 105 lbs. She stated that despite his advanced age she had never known him to be sick, unsteady of foot, or to have ever fallen.

The only testimony warranting a contrary conclusion came from Henry Cook, a tenant in Baird’s apartment building. The witness stated he discovered Baird in a bloodied condition and inquired of him whether he had been beaten or had fallen down some stairs. Cook related that the deceased had replied in the negative to both questions and directed him not to call the police. In substance, this was the extent of the evidence offered in rebuttal to the existence of the corpus delicti of the crime.

Albeit, Cook’s account was the more closely related testimony on the subject, we feel that its worth was properly discredited by the jury, particularly in light of the apparent state of fear or shock the victim most likely was suffering from, as well as the contradictory evidence submitted by the State which portrayed a scene of extreme violence. Defendant relies upon People v. Willson, 401 Ill 68, 81 NE2d 485 (1948), to caution this court that the corpus delicti cannot be heard to be established by resort to the accused’s confession unless otherwise proven by the indications of independent evidence. With that rule we have no quarrel, it simply not obtaining to the factual context of the proceedings below. Here, the fact that the victim’s demise was the consequence of the unlawful act of some person/s, we think was adequately demonstrated by the circumstances shown to exist after the alleged altercation, Cook’s testimony notwithstanding. Direct positive evidence is not requisite to proof of the corpus delicti of the offense if such can be established by other evidence, circumstantial as it may be, where the effect thereof is to be so corroborative of the defendant’s confession as to show the act of some criminal agency beyond a reasonable doubt. People v. Pry, 38 Ill2d 261, 230 NE2d 825 (1967). The court is of the opinion, suffice to say, that the evidence adduced below adequately so demonstrated.

Lastly, defendant charges that the State failed to prove his guilt of the offense beyond a reasonable doubt. That contention however is a shallow claim in that it is premised upon the erroneous assumption that defendant’s confessions were inadmissible to establish the fact of guilt.

Our reflections upon Cook’s testimony show that defendant was positively identified as the person the witness had seen in the apartment building within a few hours prior to his discovery of the victim. Defendant, moreover was said to have told Cook during their hallway confrontation in the building that he had come to see the “old man” (Baird) about renting an apartment. Candace Bergman and Sharon Smith each likewise testified that they had accompanied coindictees, Liszka, DeMario and Ramirez in their journey by car to that building on the afternoon of August 15th. While their testimony suffered from certain minor inconsistencies as to the exact time, they stated without contradiction, that shortly before DeMario had asked defendant where they could get some money, he in reply directing them to Baird’s apartment building where he had once been a tenant. Bergman added that after some wait, the three hastily emerged from that building acting very peculiar and nervous, DeMario acknowledging to defendant in her presence that he had gotten fifty dollars. This testimony was furthermore corroborated by and consistent with defendant’s accounting of what had transpired as made in his two lengthy confessions.

Testifying in his own behalf, defendant denied complicity in the crime offering, alibi witness Donna Hunt in corroboration thereof who claimed to have been in defendant’s company at his home during the afternoon the murder was alleged to have been committed. On appeal, defendant places the thrust of his argument upon what he says to be the unbelievable testimony of Bergman and Smith, offering to the court the fact that both were accomplices in the offense and that the former testified that the police had told her they would not press charges if she testified.

While we take cognizance of the authorities upon which defendant relies, where, as here, the questioned testimony manifests elements of close corroboration between the witnesses’ accounts and that which the accused himself admitted in his confession, it is not our province to usurp the function and determination of the jury as to matters involving only the credibility of witnesses. We feel the evidence affirmatively established defendant’s guilt beyond a reasonable doubt. The judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and MCNAMARA, J., concur.


text:
    Lawrence Weber and Helen Weber, His Wife, PlaintiffsAppellees, v. Village of Skokie, Cook County, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,727.
    First District, Second Division.
    February 27, 1968.
    Rehearing denied March 26, 1968.

      Harvey Schwartz, Corporation Counsel, of Skokie (Morton C. Kaplan, Assistant Corporation Counsel, of counsel), for appellant.
    McCarthy, Witry, Lyon & McCarthy, of Chicago, for appellees.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This was an action in the Circuit Court of Cook County for a declaratory judgment brought by plaintiffs, Lawrence Weber et ux., against the defendant, Village of Skokie, Illinois (hereinafter referred to as the Village) to contest the validity of a particular zoning ordinance which had been in force in that community since 1946. Plaintiffs, by such proceedings, sought an adjudication of their right to construct a single-family dwelling upon an individual parcel of property held by them in joint tenancy, which parcel, subsequent to its acceptance as part of an overall plat of subdivision in 1924, was rendered inadequate by ordinance of 1946 as to both the width and total area minimum standards made requisite for the construction of a single-family dwelling.

After hearing considerable testimony and argument in the matter, the court below, on June 28, 1966, entered a decree which, among its other terms, concluded that the aforementioned standards of the ordinance were unconstitutional as applied to plaintiffs, amounting to a taking of their property without due process of law. The court thereinafter perpetually enjoined the Village from either enforcing such provisions of the ordinance against plaintiffs or from interfering with them in their utilization of the premises for the construction thereon of a single-family dwelling. It is from the entry of this decree that the Village brings its appeal.

There would thus appear to be presented by the instant appeal the single question of whether a subsequently enacted zoning ordinance, which purports to restrict the construction of residential structures to property sites meeting certain minimum space requirements, may override or supersede the width and area specifications of a previously accepted and recorded plat of subdivision, to the detriment of one who claims by it.

As indicated, the facts giving rise to the present dispute were first set in motion in June of 1924 when a plat of subdivision (commonly known as the Knenn & Dato’s Oakton-Kostner “L” Subdivision), the authenticity of which is not questioned, was accepted and duly recorded in the Office of the Recorder of Deeds of Cook County, Illinois as Document No. 8456626. Said plat, as recorded, purported to subdivide the subject general tract into 59 consecutively numbered lots of somewhat varying sizes. We might interject that such individual lots, by the test of the subsequently enacted ordinances of the Village, would have been, with but minor exception, substandard to both the frontage and area requirements for single-family dwelling construction purposes. To a considerable extent, controversies, such as the one at bar however, have been avoided because adjoining parcels in the plat were initially acquired and disposed of in common ownership. Such was the case of plaintiffs’ predecessor in title.

For the purposes of brevity, we will limit our examination of the plat to those parcels fronting upon the 7900 block of Lowell Avenue, which rest in closest proximity to the subject site. That block runs north and south between Oakton and Kirk Avenues and is depicted by the plat as representing 26 subdivided lots of approximately equal dimensions. Save two larger parcels on that block at the comer of Kirk Avenue, all of the lots within this limited sector of the plat (including the subject property) , front 33 feet upon Lowell, have depths of approximately 123 feet, and afford slightly in excess of 4,000 square feet in total area.

As accurately as we can discern from the record, plaintiffs’ immediate predecessor in title, in or about the year 1928, purchased three such contiguous lots each of which abutted on the east side of Lowell at 7929 and 7925 respectively. These lots were numbered from north to south as parcels 11, 12 and 13 and provided a total frontage on the street of 99 feet with in excess of 12,000 square feet. Two structures were erected at that approximate time; i. e., a residence home upon parcel 11 which partially protruded over the south lot line onto parcel 12, and a garage set off and to the back of that residence upon the rear portion of said parcel 12. These two parcels taken together are known as 7929 Lowell Avenue. The aforesaid structures are still standing and being utilized. Parcel 13 adjacent the garage, subsequent to its acquisition, was left vacant, it being commonly known as 7925 Lowell Avenue.

The three properties remaining in the common ownership of the original purchaser, the Village in 1946 first enacted the zoning ordinance which has been made the object of our attention. Such ordinance prohibited the construction of single-family dwellings upon lots within the present classification of R-2 (Single-Family Residence District) not meeting the minimum standards set forth of 40 feet in width and 4,800 square feet in overall area. This same prohibition continues to be in force in amended form to date. (Amended Zoning Ordinance of the Village of Skokie (1965) Article VIII, Section C, subsection (2) and (3).)

In February of 1951, plaintiffs purchased lots 11, 12 and 13 from the aforesaid common owner, those parcels, continuing to answer to their heretofore narrated description. Plaintiffs resided in the home at 7929 Lowell for some 13 years without making any substantial additions or alterations thereto, and until April of 1964 when they jointly conveyed lots 11 and 12 to a Mr. and Mrs. Robert Noesen. The subject parcel, lot 13, however was not so conveyed, the Noesens testifying that they twice refused plaintiffs’ offers to sell it separately for prices of $5,000 and $5,500. Said lot 13 being substandard to minimum specifications, plaintiffs, on June 30,1965, filed an application for a variation with the Zoning Board of Appeals of the Village, manifesting their desire to construct a single-family dwelling on the site. After full hearings, the Board, in November of 1965, unanimously denied plaintiffs’ application, no review pursuant to the Administrative Review Act having ever been taken therefrom by plaintiffs.

It is plaintiffs’ theory that the questioned ordinance contravenes the recorded plat upon which they had a right to rely to the extent that the restrictions thereby imposed are so arbitrary and capricious so as to amount to a deprivation of their property without just compensation. In response, it is the Village’s theory that the enforcement of minimum frontage and area requirements to substandard lots of record bears a substantial and rational relationship to the legitimate exercise of its powers as a municipality; to wit, the preservation of the public health and safety.

We do not take plaintiffs to contend that the minimum lot width and area requirements per dwelling unit of the ordinance were per se beyond the realm of authority of the Village to enact, but rather that the restrictions thereby imposed are unreasonable and unconstitutional as applied to their particular property. With citation, to Galt v. County of Cook, 405 Ill 396, 91 NE2d 395 (1950), plaintiffs acknowledge the presumption which obtains and prevails in favor of the validity of the ordinance, absent an affirmative showing that its provisions are clearly arbitrary and unreasonable. Plaintiffs submit however, that their theory is such that, if sustained, would transcend any otherwise legitimately exercised and rational objective of that ordinance. While we have no quarrel with that supposition, the argument which professes to support it is an untenable one.

By their contention that the mere acts of approval and recordation of a plat of subdivision operate so as to secure and vest rights in and to the property designated for private ownership, plaintiffs must necessarily rely upon the provisions of our Plat Act (Ill Rev Stats (1965), c 109, par 1 et seq.) which admittedly antedate the general laws of zoning. That statute, however, purports to extend no such sanctions over lot sizes within the private aspect of the subdivision so platted. It is evident from the Act that the purpose to be served in requiring the submission of plats to governmental approval is to insure that adequate provision has been made for streets, alleys, parks and other public facilities indispensable to the particular community affected. Bluett v. County of Cook, 19 Ill App2d 172, 153 NE2d 305 (1958). Such a design becomes manifest by the provisions of that statute which hold a dedication by plat to be a conveyance in fee simple of those portions so noted to facilitate that end (as contrasted with the common-law rule which treated a dedication as creating an easement only with the fee remaining in the adjoining lot owners; Lambach v. Town of Mason, 386 Ill 41, 53 NE2d 601 (1944)), exempt from its requirements proposed subdivisions not involving new streets or easements of access, and which impose a penalty for noncompliance therewith.

Of particular insight in this regard is the case of Highland Oil Corp. v. Lathrup Village, 349 Mich 650, 85 NW2d 185 (1957), where responding to a similar theory which claimed the benefit of the area specifications of a plat adversely affected by a subsequent zoning ordinance, the Supreme Court of Michigan stated:

“We do not think . . . that plaintiffs’ property, . . . may escape the classification and restrictions imposed by the ordinance on the ground of unreasonableness merely because the property happens to have been platted with lines at 20-feet intervals for lot boundaries. That is not a fact or circumstance which affects or detracts from the reasonableness of the classification. If it were held to be so, the result would be that it would be competent for landowners to perpetually defeat future zoning restrictions by crisscrossing their lands on a plat map with lines ostensibly dividing the same into parcels so small that each would be unsuited to any foreseeable use unless combined with others. The test of reasonableness may not be distorted or thwarted by any such artificial device.”

So too in the case at bar, plaintiffs cannot attempt to sway the “test of reasonableness” to the Village’s disfavor by their claim to rights vested by a statute clearly not intended for such purpose. Not unlike the Highland case, the feared perpetual defeat of zoning ordinances would find application to at least three additional lots just within the immediate 7900 block of Lowell Avenue, each being homesites abutted by a commonly owned substandard vacant side yard. Plaintiffs then cannot be said to have acquired an irrevocable right simply by virtue of the plat’s recordation pursuant to this statute. State ex rel. v. Dodge, 113 Ohio App 118, 177 NE2d 515 (1960).

Plaintiffs’ particular claim, moreover, by the indication of precedent in our jurisdiction, would appear to found itself upon inarticulated principles of equitable estoppel thereby presenting a question of fact peculiar to the circumstances by which it has arisen. River Forest Bank v. Village of Hillside, 6 Ill2d 451, 129 NE2d 171 (1955); Wehrmeister v. Carlman, 17 Ill App2d 171, 149 NE2d 453 (1958). But in reviewing the record here, we can find no acquisition of rights by change of position in purported reliance upon the plat of subdivision. It is an argument, we feel, unsupported by the evidence.

The only supporting testimony by plaintiffs accounted that, prior to their disposition of the two parcels, plaintiffs had received individual property tax assessments for each of the three lots, and that when soliciting such properties for sale, lot 13 was offered separate and apart from the homesite which included lots 11 and 12. Plaintiffs further showed, in this vein, that variations had been granted to erect dwellings upon singly owned substandard 33-foot lots at 7916 and 7921 Lowell Avenue respectively, the latter being the immediately neighboring house to the south of the subject lot.

The evidence adduced by the Village, however, adequately demonstrated that, in fact, plaintiffs did not rely on the platting of lot 13. Its presentation, we think, affirmatively established that plaintiffs had, at all times during their 13-year tenure of ownership and residency, treated the three parcels as a single integrated property or homesite, such being inconsistent with their claim of reliance. It appears that said lot 13, as an adjacent vacant parcel, was employed during that period as a side yard to the dwelling, it being utilized for recreational purposes contemporaneous with plaintiffs’ residence in the living quarters. Testimony and exhibits showed that the lot had been enclosed to the home and set apart from the neighboring premises by a fence along its south lot line. Various pieces of juvenile playground equipment, picnic benches, a brick barbecue pit, as well as an underground sprinkler system had likewise been installed upon the side yard premises, these facilities being used in conjunction with plaintiffs’ use of the abode.

As to the proposition that variations had been granted to the owners of substandard parcels at 7916 and 7921 within the block, the record vividly reveals that argument to be a fallacious one. Those two parcels, by the governing provisions of the Village ordinance, were, unlike plaintiffs’ parcel, not; “. . . adjoining and contiguous to a vacant lot on either side held under common ownership at any time after the year 1946 . . .” and hence rightfully entitled to the variation granted. (Amended Zoning Ordinance of the Village of Skokie (1965) Article XIII, Section C, subsection 5(b).)

Thus, the circumstances attendant plaintiffs’ ownership of the three properties demonstrate no such reliance upon the plat, but to the contrary, a utilization of the three parcels as one, upon notice of, and consonant with the definition of the terms “lot” and “lot of record” as they appeared in and were made the object of the 1946 zoning ordinance prohibitions. A “lot” was therein defined as:

“A parcel of land occupied or intended for occupancy by a use permitted in this Ordinance, including one (1) main building together with its accessory buildings, . . . and having its principal frontage upon a street. . . .”

A “lot of record” was further defined as:

“A lot which is a part of a subdivision, the map of which has been recorded in the office of the Recorder of Deeds of Cook County, Illinois; . . . .”

The distinguishing and noteworthy factor here which strongly militates against any justification for reliance is the inescapable fact that plaintiffs took title to the subject premises five years subsequent to the enactment of the instant ordinance and hence with knowledge of the requirements thereby imposed upon the property they acquired. Under such circumstances, we are inclined to believe that any financial disadvantage which might accrue to plaintiffs, is a self-created one. LaSalle Nat. Bank v. Village of Western Springs, 30 Ill2d 340, 196 NE2d 680 (1964).

In regard to the elimination or expiration of land uses and rights thereto, the Illinois Municipal Code (Ill Rev Stats (1945), c 24, art 73, § 73-1), from which the Village derived its authority to so regulate, provided in part:

“. . . but provisions may be made for the gradual elimination of uses, . . . which are incompatible with the character of the districts in which they are made or located, including, . . . provisions (a) for the elimination of such uses of unimproved lands or lot areas when the existing rights of the persons in possession thereof are terminated. . . .” [Emphasis supplied.]

Concomitant with its grant of power, the 1946 ordinance was enacted with appropriate provisions for the exemption of adversely effected preexisting rights. Whatever rights plaintiffs’ predecessor in title may have had is an academic question as a vested right is acquired, if at all, not by the land but by the owner and then only under conditions which have been shown not to exist in the instant case. Bonan Realty Corp. v. Young, 16 Misc2d 119, 182 NYS2d 132 (1958).

In light of the foregoing, plaintiffs cannot by their ad hoc reasoning now seek to avoid the minimum requirements of the ordinance by conveying away a portion of their residence and contending, that as to that which remains, the restrictions imposed are arbitrary and unreasonable. Such an argument is, in effect, a claim to acquisition of greater rights by virtue of the simple disposition of the two adjoining parcels, and hence must be rejected. Galpin v. Village of River Forest, 26 Ill2d 515, 187 NE2d 233 (1962); Reitman v. Village of River Forest, 9 Ill2d 448, 137 NE2d 801 (1956); Cf. Vetter v. Zoning Board of Appeals of Attleboro, 330 Mass 628, 116 NE2d 277 (1953).

Plaintiffs have ofttimes alluded to this same proposition to support their ancillary contention that the Skokie Zoning Board of Appeals arbitrarily denied their application for a variation. Suffice to say, that contention, related as it may be to the merits of the principal cause, is neither relevant to our disposition of the issue at bar nor properly before this court for consideration. Plaintiffs do not maintain that the appropriate channels of administrative review from the Board’s determination on the matter were either foreclosed or unavailing. Rather, they simply rely upon the recitation in the instant decree that plaintiffs had exhausted their administrative remedies. As to the Board’s decision, however, our review of the proceedings below have shown no such exhaustion of remedies, and hence we are not bound by that finding. Plaintiffs, accordingly, cannot assail the propriety of the Board’s disposition as to the question of variation while on the appeal of their subsequent action for relief, by declaratory judgment, from the alleged confiscatory nature of the ordinance. Stemwedel v. Village of Kenilworth, 14 Ill2d 470, 153 NE2d 79 (1958).

In any event, the subject lot was not rendered “valueless for all practical purposes” as plaintiffs would suggest, both expert and lay testimony establishing a diminution of the value of lot 13 from approximately $7,000 as a building site to approximately $3,300 to $2,000 as a vacant parcel. The evidence, moreover, was at best equivocal as to such relevant factors as aesthetic value, uses of nearby property, and the resulting appreciating or depreciating effect upon neighboring land values, offers of insufficient moment to overcome the presumptive validity of the ordinance. Stemwedel v. Village of Kenilworth, supra; Chicago City Bank v. Highland Park, 9 Ill2d 364, 137 NE2d 835 (1956).

Lest we are prepared to immunize from regulation all properties recorded under antedating plats of subdivision, the instant ordinance’s substantial and rational relationship to the legitimate objectives of restrictive zoning we feel necessitate that, as applied to plaintiffs’ lot, that ordinance be sustained.

For the above reasons, the decree is reversed.

Decree reversed.

BURKE, P. J. and MCNAMARA, J., concur.


author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arnold Perez, Defendant-Appellant.
    Gen. No. 52,338.
    First District, Second Division.
    February 27, 1968.

      Howard L. Kastel, of Chicago, for plaintiff in error.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Oliver D. Ferguson, and Michael Zissman, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

At a jury trial, Arnold Perez was found guilty of the unlawful sale of a narcotic drug and was sentenced to a term of 10 to 12 years in the Illinois State Penitentiary. He appealed directly to the Supreme Court and that court transferred the appeal to this court.

Defendant raises a number of points on appeal. However, we deem it necessary to consider only two of those points. Defendant contends that the trial court erred in sustaining State’s objection to defendant’s request that the State witness exhibit his arm to the jury, and in admitting testimony obtained through the use of an eavesdropping device.

For the State, Salvatore Monte testified that, on February 15, 1962, he received two phone calls from the defendant whom he knew as Ray. Defendant said that he had some dope he wanted to sell for $25. He instructed Monte to call him at Harry’s Grill at 7:00 p. m. if he wanted to buy the drugs. Monte contacted the Narcotics Section of the Chicago Police Department, and from police headquarters, called the defendant, and had the following conversation:

“He said, ‘This is Ray speaking.’ I says, ‘Is everything all right? ’ He says, ‘Yes. I have the stuff. Bring $25.’ He says, ‘I’ll be there about a quarter to 7:00 or five to 7:00, somewhere around there.’ ”

After being searched and getting prerecorded and fluorescent-coated money from the police, Monte met the defendant at the restaurant. They then went to defendant’s room in a transient hotel located at 909 West Madison Street in Chicago. After Monte gave him the money, defendant left the room for about 20 minutes. He returned and gave Monte two tinfoil packages. As the two men left the hotel, police arrested the defendant upon a prearranged signal given by Monte. It was stipulated that Monte had a previous felony record for passing counterfeit bills.

Officer Dura testified that he listened to the telephone conversation between Monte and the defendant. He related that the conversation was as follows:

“The party on the other end, supposedly to be Bay said, ‘Have you got the money, the $25? Everything is all right.’ And Monte says, ‘Yes.’ He says ‘All right, what time will you be here’ . . . Said 7:00 o’clock. He says, ‘all right.’ Ray, the other party, said, ‘All right, at Harry’s Grill at Madison and Morgan.’ ”

Officer Dura also testified that he searched Monte and gave him the prerecorded money. He saw Monte and the defendant meet at the Grill and then go to the hotel. He observed the defendant leave the hotel and return in about 20 minutes to a half hour. He arrested defendant when he was leaving the hotel with Monte. He found a $10 bill of the prerecorded money in defendant’s possession at that time, and was given the two tinfoil packages by Monte. It was stipulated that these two packages contained heroin.

Officer Lopez testified as to the search of Monte, the recording of the money, and as to the observation of Monte and defendant from the Grill to the hotel culminating in the arrest of defendant.

For the defense, John Ramirez, an inmate of the State Farm at Vandalia, Illinois, testified that on the evening in question, defendant and Monte came to his room at the hotel. Defendant was sick and wanted a shot. Monte mixed some drugs, but the hypodermic needle would not work. Defendant left to get a new needle, and was gone for about 10 or 15 minutes. When defendant returned to the room, Ramirez saw defendant and Monte both take shots of heroin. Ramirez also saw Monte give defendant $10 to rent a room. Ramirez had a previous felony record for armed robbery.

Defendant testified in his own behalf that he never called Monte on the telephone, nor had he ever received a call from Monte. He denied selling drugs to Monte. On the evening in question, he met Monte in the Grill. Monte told him that he had narcotics and a complete “outfit.” They went to Ramirez’s room where Monte took out the heroin. Defendant left the hotel to get a new needle. When he returned they both took shots of heroin. Monte then gave him $10 to pay the rent on a room. They left the hotel together and defendant was arrested. Perez stated that both he and Monte were under the influence of narcotics at the time of the arrest.

In rebuttal, Officer Lopez testified that in his opinion neither Monte nor the defendant was under the influence of narcotics at the time of arrest.

In surrebuttal, it was stipulated that two doctors who examined the defendant in the County Jail would testify that defendant was suffering from narcotics withdrawal pains on February 16th and 19th.

Monte testified that he had formerly been a narcotics addict but that he “was kicking the habit” and that he had not taken any narcotics for about two months prior to the offense. He also stated that he had not taken any narcotics from the time of the offense until trial, a total of about five months. On cross-examination, counsel asked him to roll up his sleeve and exhibit his arm. The prosecutor objected and the court sustained the objection. Defendant contends that the trial court erred in sustaining the State’s objections to his request.

People v. Lewis, 25 Ill2d 396, 185 NE2d 168 (1962), is precisely in point. There, the main witness for the State in a prosecution for a “controlled” sale of narcotics testified that he had formerly been a narcotics addict but at the time of trial he had not been a user for about seven months. On cross-examination the witness was asked to exhibit his arm. Objection was made and sustained. The Supreme Court reversed, stating at page 399:

“The question of whether a witness is a narcotics addict is an important consideration in passing upon the credibility of a witness. For, as we have stated, the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars.
“The presence of any scars evidencing a recent use of narcotics would not only affect the credibility of the witness in so far as the recent use of narcotics was concerned, but also might reasonably cast serious doubt upon the truth of the balance of his testimony.”

For the reasons set forth by the Supreme Court above, defendant in the instant case was entitled to cross-examine the witness about his current use of narcotics, and to do that by any legitimate method. If the witness’ arm had been exhibited and scars indicating recent use of narcotics had been shown, that fact would have been of vital importance to the defendant.

While acknowledging the Lewis case, the State argues that “there was such direct conflict in the instant case that any evidence that Monte was lying about having overcome his habit could scarcely have cast any more doubt on his truthfulness than the contradicting stories offered by the defendant and the witness Ramirez.” They further argue that “under the circumstances, it was the corroborating testimony of the arresting officers which was persuasive and upon which the jury had to rely.” We do not agree. Monte’s credibility was a critical factor in the determination of this case. As to whether defendant transacted a sale of a narcotics drug, there is insufficient evidence in the record independent of Monte’s testimony to establish guilt beyond a reasonable doubt. Since Monte’s testimony was so decisive, it was reversible error to improperly limit his cross-examination by refusing to compel him to exhibit his arm.

Defendant also contends that the trial court erred in admitting testimony of a police officer concerning a conversation obtained by the officer through the use of an eavesdropping device.

Officer Dura testified as to a telephone conversation between Monte and the defendant. He stated that he listened to that phone conversation “with an apparatus we have for that purpose.” He described the apparatus as follows:

“It is an apparatus you put on the earphone of a telephone, it has a little extension that anyone else can hear. Like he was on the other end and Sal Monte was right next to me.”

Article 14 of the Criminal Code of 1961, section 14-1 provides as follows:

“An eavesdropping device is any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means.
“An eavesdropper is any person, including law enforcement officers, who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article . . .”

Section 14 — 2 provides as follows:

“A person commits eavesdropping when he:
“ (a) Uses an eavesdropping device to hear or record all or any part of any oral conversation without the consent of any party thereto . . .”

Section 14-5 provides that any evidence obtained in violation of the article is not admissible in any civil or criminal trial.

In People v. Kurth, 34 Ill2d 387, 216 NE2d 154 (1966), our Supreme Court barred the admission into evidence of the transmission or recording of a conversation against any party who has not consented to the recording or transmission of his conversation. It is clear that the defendant did not consent to the transmission of his conversation with Monte. It is also clear that the apparatus used here, as described by Officer Dura, is such that it comes under the proscription of the statute.

The admission of the testimony of the police officer concerning the telephone conversation was error. However, it must be remembered that at the time of the trial the trial judge did not have the benefit of the decision in People v. Kurth, supra.

Since we are remanding the cause for a new trial, in view of the facts and circumstances of this case, we direct the trial court in the retrial to instruct the jury in the language of the indictment. None of the other assignments of error are likely to recur in a retrial.

The judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

BURKE, P. J. and LYONS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Jelks, Defendant-Appellant.
    Gen. No. 52,594.
    First District, Second Division.
    February 27, 1968.

      Dean E. Peterson, of Chicago, for plaintiff in error.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

Fred Jelks was convicted of robbery in a bench trial. He appealed directly to the Supreme Court and that court transferred the appeal to this court. He appeals the conviction contending that the trial court erred in refusing defendant’s request to see complainant’s statement, and that the evidence fails to show beyond a reasonable doubt that the defendant is guilty of the crime.

At 10:48 p. m., May 22, 1963, the complainant, Mrs. Rosie Lee Noland, left her home at 3628 West Crenshaw in Chicago and proceeded east on her way to work. About one-half block from her home, she was accosted by a man who grabbed her and forced her between two houses. A struggle of approximately five minutes ensued during which time she screamed and resisted to the best of her ability. During the struggle she was stabbed under the arm with what appeared to be a knife. Near the end of the struggle, the complainant threw her purse some distance away from the scene. The assailant broke away, picked up the purse and ran away. At that time, the purse contained money, keys and other personal belongings. The complainant later found the purse, but it contained only the keys.

After the robbery, she talked to one of her neighbors, in front of whose house the incident had occurred. She then returned home and called the police. She described her attacker as being about 85 years of age, 5' 4" tall with a moustache, sideburns and bulging eyes. She told the police that his hair was long, wavy, greasy, and had “goo” on it. She also said that her assailant wore a small, black felt hat. Three days later, on May 25, while Mrs. Noland was walking near Central Park and Roosevelt Road, she saw defendant, whom she recognized as the man who had robbed her. She immediately summoned a policeman who arrested the defendant. When arrested, the defendant was wearing an iridescent overcoat, a dark hat and a brown or beige suit.

At the trial, Mrs. Noland positively identified defendant as the man who robbed her. She testified that, when first accosted, she was standing on the sidewalk, which was lighted by “daylight lights” suspended from poles. She stated that the lighting was good. She testified that they were as close as two people fighting and that she could see him all during the struggle; that for about three seconds she could see him “just as plain as I can see him now.” She stated that his hair looked the same at the time of the arrest as at the time of the robbery.

The arresting officer testified that at the time of the arrest defendant had “processed hair,” that his hair was long on the top of his head, but that he did not have sideburns. He also stated that the defendant denied committing the robbery. Both the arresting officer and a detective testified that defendant told them that he had spent the evening alone at a movie, but he could not recall which theatre or what movie he saw, but that it was a double feature.

On behalf of the defense, the defendant and Edward Bester testified that they were together from about 11:00 a. m. until after midnight on the day of the robbery. They had visited the Social Security Board until noon, and from then until 6:30 p. m. they idled away the time in the neighborhood. At about 6:30 p. m. they went to the Maryland theatre on the south side. They watched both features twice and left when the theatre closed about 12:30 a. m. They then returned to the west side and parted company at about 1:30 a. m. Neither of them was certain as to what pictures were playing, but Bester thought they were “Billy Budd” and “The Mongol.” He also testified that he next saw the defendant on the day of the arrest, that they were together at that time, and that he saw Mrs. Noland point out the defendant. However, he was told to move along and did not hear what she said about the robbery.

Bester also testified that he had not seen the defendant again until the day of trial. He had not talked to counsel for the defendant because he had been working as a musician in Champaign, Illinois. On August 1, 1963, he was asked to recall his whereabouts on May 22, and to testify for the defense.

Defendant denied committing the robbery. He testified that he and Bester had attended the Maryland theatre once a week for about six years and that he had great difficulty remembering movies or actors. However on May 22, he thought one of the features was a “picture about ships starring Robert Ryan.” He testified that on the day of his arrest he was coming from his mother’s home to meet Bester. His mother lived a few doors from the scene of the robbery. He passed the complainant on the street, noticed her staring at him, and asked her if she knew him. He went on to meet Bester and, shortly thereafter, was arrested. He testified that he had visited his mother’s home occasionally, but had never seen the complainant prior to the day of his arrest. Defendant testified that on May 22 he had grease on his hair, but that he had his hair cut in jail because “you can’t use grease while in jail.”

Mr. Waddie Daniel testified for the defense that the street on which the robbery occurred was illuminated poorly; that the street lights there “are not as good as ordinary light bulbs.”

At trial, it was stipulated that defendant was 35 years old.

Defendant contends that the trial court erred in refusing to allow defendant to see the original description of the robber given to the police by the complainant. After the State had rested its case, counsel for defendant moved for the production of the original description. The State asked for what purpose the request was made. The following discussion then took place:

“THE COURT: Look, you will have no problem with me. If you want to recall her, if you want to have her recalled to have further cross-examination, I will let you do that. Actually your request for this should have been made earlier when she was on the stand.
“MR. ADAMS (Defense counsel): I understand that, Judge. Alright, I will withdraw the motion, Judge.”

“The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” Brady v. Maryland, 373 US 83 (1963); People v. Hoffman, 32 Ill2d 96, 203 NE2d 873 (1965). Defendant is entitled to the production of a prior statement after a showing that such a statement exists. People v. Neiman, 30 Ill2d 393, 197 NE2d 8 (1964). Defendant contends that the prior description was not produced because the State made spurious objections when the request for production was made. However, the record shows clearly that the State interposed no objection, but inquired only as to the purpose of the request made by defendant. This inquiry was proper. It is also clear that the court ruled favorably on the request, and that it was withdrawn voluntarily by counsel for the defendant. Further, in the instant case, defendant concedes that the prior statement would have had to be reduced to writing to be available for production. There is nothing in the record to indicate that Mrs. Noland ever gave a description of the robber which had been reduced to writing. In the absence of any showing that such a prior description existed, it cannot be argued that the State suppressed any evidence which might have been helpful to defendant.

Cases cited by defendant are inapplicable to the case at bar. In Brady v. Maryland, supra, defendant pleaded guilty to a murder charge, but requested life imprisonment instead of death. Defendant had requested prior statements of his codefendant. He was given several statements, but was denied access to the statement in which his companion had admitted the actual killing. The United States Supreme Court reversed the conviction because of the suppression of evidence by the State. In People v. Hoffman, supra, the conviction was reversed because the State suppressed a pair of men’s shorts found at the scene of the crime, despite defendant’s request to examine them. In Giles v. Maryland, 386 US 66 (1967), a rape conviction was reversed because the prosecution suppressed a juvenile court report concerning prosecutrix and also suppressed statements made to the police which were contradictory to the testimony at trial. In Miller v. Pate, 386 US 1 (1967), the conviction was reversed because the prosecution produced testimony that a pair of shorts were stained with blood, and linked these shorts with the defendant. Defendant was denied permission to examine the shorts. During post-conviction review, it was learned that the shorts were in fact stained with reddish paint.

In all of these cases there was a deliberate concealment by the State of evidence or statements which defendants had asked to see. There is no such concealment by the State in the instant case. If such a prior statement existed, it was not produced only because of the voluntary waiver made by defendant. He cannot now complain of error.

Defendant next contends that the State failed to prove him guilty of robbery beyond a reasonable doubt. Defendant concedes that the law is well settled, that the testimony of one witness as to identification, if positive, and the witness credible, is sufficient to support a conviction even though denied by the defendant and contradicted by an alibi defense. People v. Perkins, 17 Ill2d 493, 162 NE2d 385 (1959); People v. Ashley, 18 Ill2d 272, 164 NE2d 70 (1960). Where there are conflicts in evidence, going to the credibility of the witnesses, the determination of that conflict is a function of the trier of fact, who hears and sees the witnesses and is better equipped to evaluate their demeanor, sincerity, and the weight to be given their testimony, than is the reviewing court. People v. Wysocki, 20 Ill2d 62, 169 NE2d 264 (1960).

But defendant urges that it is improbable and contradictory to human experience to believe that he would have committed a robbery a few doors from his mother’s residence or that he would have spoken to the complainant three days later if he had robbed her. However, such circumstances are not contrary to human experience. In People v. Young, 65 Ill App2d 185, 213 NE2d 146 (1965), the court rejected defendant’s contention that it was contrary to human experience that he would rob a gas station two blocks from home, then return to the station a few days later to get change from the same attendant. At page 190, the court stated:

"Where material facts in issue are conflicting, it is the duty of a jury, or of a court sitting without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and on review this court will not substitute its judgment for that of a jury, or trial court.”

The trial court found nothing incredible or improbable about the circumstances of this case, and neither do we. Therefore, we find that the defendant was proven guilty beyond a reasonable doubt.

For the foregoing reasons, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Ferd De Anguera, d/b/a Pella Products, Plaintiff-Appellee, v. Lorenzo Arreguin, et al., and Castle Homes, Inc., Defendants-Appellants.
    Gen. No. 67-104.
    Second District.
    February 28, 1968.

      Guyer and Enichen, of Rockford, for appellants.
    Barrick, Jackson and Switzer, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County. The plaintiff filed suit to foreclose a mechanic’s lien to recover the purchase price of certain windows and doors delivered to and used by defendant owner, Lorenzo Arreguin, in the construction of his residence. Plaintiff was awarded judgment in the sum of $2,844.06 and was granted a lien on the premises of defendant owner. From this decree defendant owner appeals.

The owner on September 5, 1964, entered into a contract with Wayne L. Johnson, a general contractor, wherein Johnson agreed to build a house on a lot owned by Arreguin. On November 24, 1964, Castle Homes, Inc., by and through Wayne L. Johnson, its Vice President, purchased certain windows and doors to be used in the owner’s home from plaintiff, Ferd De Anguera, d/b/a Pella Products. The plaintiff furnished the materials only; the contractor furnished the labor to install the windows and doors.

The windows were delivered to the construction site in the middle of January, 1965; the doors were delivered in February. Castle Homes, Inc. was billed shortly after March 8, 1965, for the entire contract price of the windows and doors in the sum of $2,844.06. Defendant owner withheld $2,000 of the payments due the contractor, defendant, Johnson, until certain necessary insulation glass was installed. On March 8, 1965, after all the glass had been installed, defendant owner paid Johnson the additional $2,000. No waivers of lien were received by defendant owner. In the spring of 1965 owner discharged Johnson as general contractor and found someone else to complete the home.

On or about November 8, 1965, two agents of plaintiff went to the owner’s home, still under construction, and serviced the windows. The service consisted of removing leveling blocks, installing clamps and lock handles, rubbing paraffin on the weather strip and making other minor adjustments. This servicing took approximately 1% hours. Thereafter, on December 6, 1965, plaintiff filed his statement for claim for mechanic’s lien in the Recorder’s Office. All proper notices were sent. Plaintiff has received no payments for the materials furnished to the owner’s home. The suit in question was filed on February 7, 1966. A motion was granted to dismiss Wayne L. Johnson as a party defendant.

At the hearing there was no dispute as to proper installation of the windows and doors nor was there any dispute as to the value of the windows and doors. After full hearing, the trial court decided the contract was not completed until the hardware, including window cranks, was installed; until that time in November of 1965, the windows were inoperable. The trial court determined that plaintiff was timely in his service of notice upon the owner of his claim for mechanic’s lien and judgment was rendered in plaintiff’s favor in the sum of $2,844.06 and he was granted a lien on the premises of the owner.

The complaint had alleged that the contract between defendant owner for the construction of his home was with Castle Homes, Inc. The proof at the trial showed that Wayne L. Johnson, Vice President and organizer of Castle Homes, Inc., had signed the construction contract individually. The complaint was in two counts. Count I alleged a contract between Castle Homes, Inc. and the defendant owner, Lorenzo Arreguin. Count II alleged a contract between Wayne L. Johnson individually and Wayne L. Johnson as officer and agent of Castle Homes, Inc. was entered into with defendant owner.

The defendant owner contends that a subcontractor’s rights to a lien are based upon the existence of a contract between the owner and the contractor and that a fatal variance exists when the complaint alleges a contract with one party and proofs show the contract with another. Here the construction contract was with Johnson individually. The order placed with the plaintiff was by Castle Homes, Inc., by Wayne L. Johnson, as Vice President of said corporation. Apparently, Johnson at this time was in the process of incorporating the construction business. The defendant owner had contacted the plaintiff for the materials a year before the construction contract was signed. He had knowledge that the plaintiff was to and did furnish the material for the job. A variance between the allegations and proof, in order to be fatal, must be substantial and material. The defendant owner was in no way prejudiced by the variance and it cannot be said that it was substantial or material under the facts herein set forth. United Cork Companies v. Volland, 365 Ill 564, 573, 7 NE2d 301.

The principal contention of the defendant owner is that the trial court erred in finding that the servicing of the windows in November of 1965 was sufficient to extend the materialman’s time for perfecting the mechanic’s lien. The question is whether the work done by the plaintiff was trivial and inconsequential in character or was essential to the completion of the contract for the furnishing and installation of the windows. Defendant argues that Alexander Hendry Co. v. Mooar, 242 Ill App 516, and Schaller-Hoerr Co. v. Gentile, 153 Ill App 458, are controlling. The trial courts determined under the facts of those cases that the additional services rendered by the contractor were inconsequential and therefore did not extend the time for the filing of a mechanic’s lien. In this case the trial court determined that the services performed in November of 1965 were not inconsequential and, in fact, specifically found that without the servicing performed in November of 1966 the windows would be inoperable.

This court is asked to determine that the trier of facts ruled contrary to the manifest weight of the evidence. After giving full consideration to all of the conflicting evidence on the issues we cannot hold that the findings of the trial court were against the manifest weight of the evidence. Elgin Lumber & Supply Co., Inc. v. Malenius, 90 Ill App2d 90, 232 NE2d 319, 323. A careful review of the record does not persuade us that the trial court ruled contrary to the manifest weight of the evidence and, therefore, the judgment of the lower court is affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.