text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Harris, Defendant-Appellant.
    Gen. No. 51,752.
    First District, First Division.
    June 10, 1968.

      George H. Martens, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge R. Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Robert Harris, was found guilty of voluntary manslaughter by a jury and was sentenced to the penitentiary for a minimum of 19 and a maximum of 20 years. On appeal, his principal contention is that his confession should not have been admitted into evidence because it was involuntary, and he had been denied the assistance of counsel. A pretrial motion to suppress any written or oral confession was denied after hearing the testimony of witnesses.

Defendant’s trial was held in December 1965. The evidence shows that on February 25, 1963, at about 8:30 p. m., Lloyd L. Daniels, a CTA bus driver, entered the apartment building at 222 South Hamlin, accompanied by his wife, his brother-in-law, Melvin Booker, and his sister, Mrs. Oberia Mason, who lived in the building. When they approached the top landing they saw defendant there with a woman (later identified as Lee Ethel Weathington) seemingly draped over his knee, her head resting on the steps. Mrs. Mason noted that the woman must be “awful sick,” and defendant replied, “She is, and she has chills. I’m trying to get her to the hospital.” Daniels noticed an open trunk on the next landing and called the police from Mrs. Mason’s apartment, and then left the building. Shortly thereafter he returned to the building. The body was on the floor of the vestibule, and defendant was there with two police officers. On inquiry, Daniels told the police that defendant was the man he saw “with the body.” The police noticed bloodstains on defendant’s clothing. A bloodstained trunk was found on the third floor, and the keys of defendant fitted the lock on the trunk. Bloodstained newspapers were found in the defendant’s apartment. Crime laboratory technicians discovered a piece of 1%" pipe in the basement incinerator chute.

Defendant was taken into custody about 9:30 p. m. on February 25,1963. A question and answer statement was taken by Assistant State’s Attorney Bonaguro, with Court Reporter Flannery present, at about 5:00 a. m., February 26, 1963. At the trial the court reporter identified the written statement (People’s exhibit 19) as an accurate transcript of his notes, which he transcribed on the morning of February 26. The defendant signed the statement around noon on February 26 in the State’s Attorney’s office. “Witnesses to signature” include Lester A. Bonaguro, John Loftus and Anton J. Bielski.

Defendant’s statement, over objection, was admitted into evidence and read to the jury. The statement showed that defendant maintained an apartment on the fourth floor of 222 South Hamlin, and two or three nights a week the decedent would stay with him. She was married, and they planned on getting married when she obtained a divorce. On February 25, he arrived home at about 8:00 o’clock in the evening, and the decedent was in the apartment. They had a quarrel, and she called him a name, and “I just hit her before I know it.” He hit her twice, and she fell to the floor. The pipe identified by him was 17%" long and 1%" in diameter. After she fell to the floor, he saw blood coming from her hair. He tried to get a blanket out of the trunk to wrap her in and stumbled over the trunk with the body. He started to walk down the stairs with the body to take her to a doctor, when he met Daniels and his companions. He threw the pipe into the incinerator. He telephoned her sister and the police and told them to come out because “the girl was hurt real bad or dead I guess.”

A police department microanalyst testified that from tests it was determined that the bloodstains on the trunk, newspaper and defendant’s clothing were human bloodstains. Human hair from the victim was the same as found in the trunk, and fatty tissue was found on the pipe. The coroner’s pathologist testified that in his opinion “cranial cerebral injuries were the cause of Lee Ethel Weathington’s death.”

Defendant did not testify. In a hearing in mitigation and aggravation, it was disclosed that defendant was previously found guilty of voluntary manslaughter in 1955 and was sentenced to 14 years.

Initially, we consider defendant’s contention that the trial court erred in failing to suppress his confession because (1) defendant’s confession should have been suppressed because he had been denied “the assistance of counsel” in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States; (2) defendant’s confession should also have been suppressed as involuntary under established pre-Escobedo standards: (a) defendant was not advised of any of his rights, including his right to remain silent; (b) no counsel was present when defendant’s statement was taken; (c) defendant was denied medical care for his fractured ankle; (d) defendant did not voluntarily sign the statement; (e) the treatment of defendant while in custody negates voluntariness; (f) the unreasonable delay in presentment negates voluntariness; (g) the State failed to sustain the burden of proving that defendant’s confession was voluntary ; and (3) the admission of defendant’s involuntary confession and its subsequent use at the trial leading to his conviction deprived defendant of due process of law.

The hearing of the motion to suppress any “oral or Written confession” was heard on July 27,1965. Witnesses for the State consisted of six police officers and Bonaguro and Flannery. The testimony of four police officers — Pelz, Steinmiller, Smith and Spellman — covered the period from the time the police found the defendant with the body at 222 South Hamlin until he was turned over to Officers Miskulin and Barrett for interrogation. These four officers testified to questioning defendant about the body, during which defendant made no substantial admissions. He was not limping and made no request for medical care or for a lawyer.

Officer Michael Miskulin testified that he was assigned to Area 4, Homicide. He first saw the defendant in his apartment on the fourth floor at 222 South Hamlin on February 25, 1963, at about 9:30 p. m., and defendant asked Miskulin if he didn’t remember him, and he had no further conversation with defendant in the apartment. He next saw defendant in Area 4 after 10:00 p. m. He interviewed defendant for about an hour. There was nothing unusual about defendant, and at no time did he tell of an injury to his ankle, and he did not ask for medical assistance or an attorney. “He did not mention an attorney at any time.” He took defendant to a washroom, and on the way defendant stopped and talked to his sister. “He mentioned something about wanting to turn over car keys to his sister and he asked me if I would obtain those car keys from the officers whoever had them. I said that we would discuss that later, that we go to the washroom now and he left his sister and he went to the washroom and returned to the room.” He was within hearing and eyesight of Harris for about three hours, either in the interviewing room or at the open doorway. Defendant did not ask to see anyone.

Officer Miskulin further testified that before the defendant was taken to the washroom, “I confronted him with the evidence that we had uncovered on this investigation. I told him that we had recovered the steel pipe out of the incinerator that he had used in this offense. I told him we had the trunk upstairs, a key from his pocket fit that same trunk, and I informed him we had everything there to link him with this homicide. He finally told me he wanted to tell me just what took place. He told me that Ethel Lee Weathington was his girl friend. . . . They were seated at the kitchen table. They were arguing, he took this pipe and struck her twice over the head with it.” Defendant told this to the officer between 11:30 and 12:00 p. m. on February 25, 1963.

After midnight, Miskulin telephoned the State’s Attorney’s office. Assistant State’s Attorney Bonaguro arrived about 3:00 a. m., and a question and answer statement was taken. Miskulin testified, “I didn’t sit in on the statement” that was taken at 5:00 a. m. Assistant State’s Attorney Bonaguro, Court Reporter Flannery and Detective Barrett did. The last time Miskulin saw defendant was on the morning of the 26th. Miskulin also testified that Officer Barrett was on leave and out of the city on the day of the hearing of the motion to suppress.

Officer Anton J. Bielski (in rebuttal) testified that on February 26,1963, he was assigned to the Homicide Unit, Area 4. He saw defendant on February 26, 1963, shortly before noon in the office of the State’s Attorney. Present were his partner, John Loftus, and Assistant State’s Attorney Bonaguro. Defendant was given a copy of a statement that had been given by defendant earlier that morning. After the statement was read by Mr. Bonaguro, defendant signed it and Officers Bielski and Loftus and Bonaguro signed it as witnesses. Defendant did not decline to sign or read it. He did not ask to communicate with anyone, nor did he ask for an attorney or medical attention. Bielski noticed that defendant had a slight limp, but defendant made no complaint about it.

Lester Bonaguro testified that he was an Assistant State’s Attorney on February 26, 1963, and he arrived at Area 4, Homicide about 4:45 a. m. and took a statement from defendant with Court Reporter Flannery present. Bonaguro asked questions, and defendant gave answers. He did not recall hearing defendant complain about an ankle or any other ailment or request to use the telephone or to consult an attorney.

Donald M. Flannery testified that he was a shorthand reporter for the State’s Attorney’s office. On February 26, he went to Area 4, Homicide at about 4:00 a. m. and took a statement at about 4:55 a. m. Those present were Bonaguro, Officer Barrett and the defendant. Bonaguro asked the questions and the defendant gave the answers. He had his notes with him, and they were marked as People’s exhibit 3 for identification. The notes were transcribed on the morning of February 26, 1963, and People’s exhibit 4 for identification was the statement given by defendant.

Defendant testified at the hearing on his motion to suppress that he arrived at the Maxwell Street station after 10:00 p. m. on February 25 and was taken to a small room for interrogation. He was handcuffed to a chair from the time he arrived until he left the station. He was interrogated by Officer Miskulin and then by Officer Barrett. While being interrogated, defendant asked Officer Miskulin for permission to make contact with his sister so she could arrange for legal counsel for him. He also asked to see a doctor about his ankle, which he had injured at work that day and which was swollen and had become very painful. Both requests were refused, and the defendant was told that he would not be able to make contact with anyone until they were “through” and then he could call his sister. Defendant also called attention to his injured ankle by exhibiting it to the officer and insisted that he was not going to give a statement. The officer told him that he would not be able to make contact with anyone until he had given a statement.

When Assistant State’s Attorney Lester Bonaguro arrived at about 4:30 a. m. of February 26, 1963, defendant told him that he was not going to give a statement and that he wanted to see a lawyer. Later defendant was in such unbearable pain that at 4:55 a. m. on February 26, he agreed to answer the Assistant State’s Attorney’s questions so that he could obtain medical care for his ankle. Defendant also said he was not allowed to call his sister until about 5:20 a. m. after the statement was taken, and that he was not allowed toilet privileges until after his sister arrived at 5:30 a. m.

Defendant testified that he was admitted to the Bride-well Hospital on the evening of February 26,1963, where he was X-rayed and a cast was applied to his ankle, and he remained in the hospital until February 28,1963, when he was taken from the Bridewell Hospital to the State’s Attorney’s office in order to sign the statement he made on February 26, 1963. When he refused to sign, he was “rolled around” sitting in back of the police truck, until 2:15 that afternoon. The police officers in charge of the truck told him they would bring him back when he made up his mind to sign the statement. By 2:00 p. m., defendant was “about froze” and agreed to sign the statement, which was done in the presence of Assistant State’s Attorney Bonaguro and Officers John Loftus and Anton J. Bielski.

At the conclusion of the hearing on the motion to suppress, the trial judge said, after reviewing the evidence, “Now, I have to be aware of certain realities of life. The sister is sitting in the courtroom here, there hasn’t been a scintilla of evidence from that area to contradict what the police have said. . . . She was there, there was some discussion about his car keys. The police said at that time he was taken and given an opportunity to go to the washroom. So I have to assume now that whatever transpired, certainly, was within the propriety of the police work.”

The court made the following findings: “It is the Court’s finding, based on this evidence as a matter of fact that this defendant did not ask at any time for any attorney. In fact, prior to any oral statements or prior to any written statements. I rather find as a matter of fact that defendant did not ask for any medical aid prior to making any oral statements or prior to making the written statement. I further find that the defendant was not coerced or put under duress in any form, and, consequently, my conclusion of law is that the confession, both the oral statements and the written statements are voluntary; that the defendant’s constitutional rights have not been violated in any way. Consequently, the motion to suppress is denied and the oral and written statements in the form of confession are received in evidence.”

Defendant argues that his trial was in December 1965, and the rule announced in Escobedo v. Illinois, 378 US 478 (1964) should have been applied here. Defendant asserts that he was taken into police custody at approximately 9:30 p. m. on February 25, 1963, and the investigation had begun to focus on him. He states, “Two police officers admitted questioning the defendant in his apartment. . . . [H]e was later questioned by 4 or 5 police officers while being held at the Fillmore Street station. Then he was transferred to Area 4, the Maxwell Street station, where he was interrogated by two detectives taking turns from about 11:00 P. M. on February 25 until almost 5:00 A. M. on February 26. During these six hours Detective Miskulin confronted defendant with what evidence had been discovered through the police investigation and allegedly succeeded in eliciting oral incriminating statements from defendant. Yielding to the pressures of this incommunicado detention and in order to obtain medical care for his fractured ankle, and to be allowed to call his sister, defendant finally agreed at 4:55 A. M. to answer questions posed by Assistant State’s Attorney Bonaguro, who had arrived at Area 4 at about 4:45 A.M.”

The State contends that the failure to give defendant an affirmative warning of his right to remain silent and the absence of counsel does not require rejection of defendant’s otherwise voluntary confession as a matter of law, although the trial court should have considered such attendant circumstances in determining the voluntariness and admissibility of defendant’s confession. After examining this record and considering the authorities cited by both sides on the question of the admissibility of defendant’s confession, we conclude the following pronouncements apply here.

People v. Lewis, 32 Ill2d 391, 393, 207 NE2d 65 (1965) :

“In Escobedo the defendant had requested counsel and his request had been denied. In People v. Hart-graves, 31 Ill2d 375, we held that where there was no evidence that counsel was requested, a failure to warn the accused of his constitutional right to counsel and his right to remain silent did not render a confession inadmissible. The present case is governed by our decision in Hartgraves. There was no evidence of improper conduct and, in the absence of a request by the defendant, the failure of the authorities to advise him of his right to counsel and his right to remain silent does not render the confession inadmissible.”

People v. Sims, 21 Ill2d 425, 428, 173 NE2d 494 (1961):

“Throughout these variations in phraseology there runs the dominant theme that, when the voluntary character of a confession has been timely and properly put in issue, all witnesses whose testimony is material to that issue should be called or their absence explained.”

People v. Spencer, 27 Ill2d 320, 325, 189 NE2d 270 (1963):

"Upon preliminary inquiry into the voluntary nature of a confession, the question of its competency is for the trial court alone to decide and, in making its determination, the court is not required to be convinced of its voluntary character beyond a reasonable doubt. On review, the decision of the trial court will not be disturbed unless manifestly against the weight of the evidence, or unless the court has clearly committed an abuse of discretion. . . . Here, the evidence was not only conflicting but that of defendant was in several material instances contradictory and unsatisfactory. Considering also the superior position of the trial judge to see and hear the witnesses and to assess their credibility, we cannot say that the decision to admit the confession into evidence as one voluntarily given was either against the manifest weight of the evidence or a clear abuse of discretion.”

Applying the foregoing pronouncements to the trial court’s denial of defendant’s motion to suppress his confession, we conclude: (1) Although fourteen officers came in direct contact with defendant from the date of his arrest, February 25, 1963, at about 9:30 p. m., until he signed the statement at noon of February 26, 1963, all witnesses were called whose testimony was material to the issue of voluntariness. Officer Barrett’s absence was explained at the time of the hearing of the motion, and we find defendant was not prejudiced by his absence. We note, also, that Barrett did testify at defendant’s trial. (2) The court’s findings are supported by substantial evidence and are not against the manifest weight of the evidence or a clear abuse of discretion. (3) Also, we find no error in the court’s refusal to admit into evidence defendant’s Bridewell Hospital records from February 26 to February 28, 1963. The State objected to the admission on the grounds that it was hearsay. From this record, we believe the trial court properly sustained the objection.

In conclusion, we find no reason to disturb the trial court’s denial of defendant’s motion to suppress, and at the trial the court properly admitted into evidence defendant’s written confession.

Defendant also complains of the admission into evidence at his trial of certain exhibits of the State, which defendant asserts the State obtained as a result of an unreasonable search of defendant’s apartment. After defendant was arrested and handcuffed in the first floor vestibule of the building, Officer Pelz and two other officers accompanied defendant to his apartment, and Officer Pelz took the apartment key from defendant’s pocket and opened the door. The exhibits consist of a newspaper found in the apartment and a photograph taken of defendant’s kitchen. Defendant argues both were obtained as a result of an unreasonable search of his apartment and in violation of his constitutional rights under the Fourth Amendment. We find no error here. Although defendant was arrested without a warrant, his arrest was lawful, and it included “the right to search the area within the defendant’s immediate control, including the premises in which the person has been arrested.” (People v. Braden, 34 Ill2d 516, 519, 216 NE 2d 808 (1966).) Under the circumstances portrayed here, the finding of the body in the vestibule and the open trunk on one of the stair landings, we believe the search of defendant’s fourth floor apartment was not unreasonable.

Finally, defendant contends that the imposition of a minimum sentence of 19 years was unduly harsh because the statutory maximum sentence for voluntary manslaughter was 20 years.

The State argues, “In the case at bar, the defendant’s conviction was for taking his second life and it would be a grave injustice to permit a defendant with such propensities to return to society, especially in light of the provocation being by mere words of a woman.” The sentence imposed upon defendant was within the statutory range and, after considering this record, we cannot say that this is a proper case to disturb the sentence imposed by the trial court.

Defendant also argues that “the trial court should not have taxed defendant with costs” because counsel was appointed to prosecute this appeal at no expense to defendant (Supreme Court Rule 607). As the State points out, section 180-3 (Judgment for costs) of Chapter 38 leaves no discretion in the court by the use of the word “shall.” Therefore, the trial court properly ordered the defendant to pay all of the costs of the proceedings.

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

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    Florence McDonnell, Plaintiff-Appellant, v. James McDonnell, Defendant-Appellee.
    Gen. No. 52,299.
    First District, First Division.
    June 10, 1968.
    William D. Larkin, of Chicago, for appellant.
    No brief filed for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff filed an action for divorce on grounds of habitual drunkenness for a period in excess of two years. The return on the summons executed by the Sheriff of Cook County shows that the summons and a copy of the complaint was served on the defendant personally. When the defendant failed to appear, an order of default was entered and a divorce decree was entered in favor of plaintiff.

More than two months after the entry of the decree, defendant filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72) praying that the default divorce decree be vacated because of improper service of summons. Plaintiff filed a motion to strike the section 72 petition, but the motion was denied. The court held a hearing and vacated the divorce decree. Plaintiff filed a proper notice of appeal pursuant to subsection 6 of section 72.

Plaintiff filed her brief and abstract and has complied with all the statutory requirements and rules of this court for prosecuting an appeal. The defendant filed an appearance in this court on August 28, 1967, but since that time has failed to file a brief or otherwise comply with the rules of this court. It is therefore unnecessary for us to discuss the case in full and we reverse the order of the Circuit Court of Cook County vacating the divorce decree and remand this cause with directions to deny defendant’s petition for relief under section 72. Parkside Realty Co. v. License Appeal Commission, 87 Ill App2d 374, 231 NE2d 654 (1967); Beinarauskas v. Beinarauskas, 90 Ill App2d 381, 234 NE2d 16 (1967); C.I.T. Corporation v. Blackwell, 281 Ill App 504 (1935).

Judgment reversed and cause remanded with directions.

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


text:
    Frederick L. Swanson, Plaintiff-Appellant, v. Dr. Harold M. Visotsky, Director, Department of Mental Health of Illinois, Maude Myers, Director, Department of Personnel of Illinois, Michael J. Howlett, Auditor of Public Accounts of Illinois, William J. Scott, State Treasurer of the State of Illinois, Defendants-Appellees.
    Gen. No. 52,383.
    First District, First Division.
    June 10, 1968.

      Joseph J. Augustus, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and Robert F. Nix, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is a suit for mandamus and declaratory judgment brought by plaintiff, seeking reinstatement to a position in the Department of Mental Health of the State of Illinois, and also seeking back pay for the period during which he had been discharged. The trial court entered an order dismissing plaintiff’s complaint. Plaintiff appealed directly to the Supreme Court, claiming that the case involved State revenue. The Supreme Court, however, transferred the cause to this court. No evidence was introduced and all questions are raised on the pleadings.

Plaintiff’s verified complaint, filed April 7, 1965, alleged that he was engaged in the profession of a Personnel Officer; that in March, 1963, pursuant to an open and competitive examination for Personnel Officer HI, authorized and conducted by the Department of Personnel of the State of Illinois, plaintiff took and passed said examination; thereafter plaintiff was appointed to said position by the Director of the Department of Mental Health, and assumed the duties of said position on June 15,1964. He was assigned to the Chicago State Hospital, a division of the Department of Mental Health.

Plaintiff was initially classified as a probationary employee. The Department of Personnel, pursuant to the authority given to it in section 8 of the Personnel Code (Ill Rev Stats 1963, c 127, § 63bl08), adopted the following rules concerning the duration of an employee’s probationary period.

Department of Personnel Rule 2-310:

“An employee who enters State service and commences a new period of continuous service or who is reinstated shall serve a probationary period of six months.”

Department of Personnel Rule 2-330:

“A probationary employee shall attain certified status only after he has successfully completed his probationary period. Notice of certification shall be sent to the employee and agency by the Director.”

Written charges against plaintiff, dated December 3, 1964, seeking his discharge from the Department of Mental Health, and a notice of approval of those charges signed by the Director of the Department of Mental Health on December 10, 1964, and approved by the Director of Personnel were both sent to plaintiff via registered mail on December 11, 1964. Plaintiff admitted that he received those documents on December 12, 1964. These documents were attached to the complaint as exhibits. Plaintiff argues that the charges and notice of approval of such charges were sent pursuant to section 8b (16) of the Personnel Code (Ill Rev Stats 1963, c 127, § 63bl08b(16)). That section provides:

“For hearing before discharge or demotion with the prior approval of the Director of Personnel only for cause after appointment is completed, after the person to be discharged . . . has been presented in writing with the reasons requesting such discharge
99
• * •

The Personnel Code does not specify any procedure for a hearing upon the discharge of a probationary or temporary employee.

Defendants also sent plaintiff a “Personnel Separations” form signed by defendants Harold M. Visotsky and Maude Myers. This form informed plaintiff that the last day he would be paid by the State of Illinois was December 3,1964. His discharge was effective December 10, 1964. The form also contained a section entitled “Effective Date of Separation.” On this line was typed “January 7,1965.”

Plaintiff, recognizing that he had been discharged, wrote to the Civil Service Commission on December 22, 1964, demanding a hearing on the charges against him pursuant to section 111 of the Personnel Code (Ill Rev Stats 1963, c 127, § 63b11), which provides for hearings for the discharge of appointed employees. In response to this request, the Commission informed plaintiff that since he was a probationary employee and not an appointed employee, he was not entitled to a hearing. Plaintiff does not contend that probationary employees are entitled to a hearing upon being discharged. His sole argument on this appeal is that he was a permanent employee and therefore entitled to an appropriate hearing.

We find no merit to plaintiff’s contention that he was classified as a permanent employee in the service of the State of Illinois. Section 8b (6) of the Personnel Code clearly provides that a probationary employee may be discharged with the consent of the Director of Personnel. The Department of Personnel’s Rule 2-310 limits the probationary period to a term of six months. Rule 2-330 states that a probationary employee shall attain certified status only after he has successfully completed his probationary period. It is apparent from the face of the complaint that plaintiff’s discharge became legally effective prior to his completion of six months active service. Plaintiff entered the service of the State of Illinois on June 15, 1964; the last day he was to be paid for his services was December 3, 1964; and his discharge from State service was consented to by the Director of Personnel on December 10,1964, four days prior to the completion of six months’ service.

We likewise find no merit to plaintiff’s contention “that prior to January 7, 1965, he was actively engaged in the performance of his duties as a civil employee in the Department of Mental Health.” Plaintiff’s argument that he successfully completed his probationary period is predicated upon a notation on his Personnel Separations form which stated that the effective date of separation was to be January 7, 1965. This contention cannot prevail as plaintiff was discharged effective December 10, 1964. He no longer was an employee of the State of Illinois after that date. In People ex rel. Heffernan v. Smykal, 13 Ill App2d 342, 142 NE2d 133 (1957), it was held that a discharge of a probationary employee became effective immediately upon approval of the discharge by the proper official. In the instant case, plaintiff was not retained as a State employee subsequent to December 10, 1964, nor did he at any time attain the status of a permanent or certified employee. Rather, his employment was terminated when the defendant, Director of Mental Health, approved the written charges and consented to plaintiff’s discharge.

No express statutory procedure pertinent to the discharge of a probationary employee is set forth in the Personnel Code. Sections 8b (16) and (11) of the Personnel Code pertain to discharge of employees who have completed their probationary term. However, the use of that procedure does not render void the discharge of the instant plaintiff. Once his discharge was approved by the Director of Personnel, plaintiff’s employment with the State was terminated. The procedure was appropriate to discharge plaintiff during his probationary period and the approval by the Director of Personnel complied with the requirements of Section 8b (6).

As plaintiff was a probationary employee, no right to a Civil Service Commission hearing accrued to him upon his discharge from State service. The Commission had no jurisdiction to hear an appeal from a probationary discharge, nor did plaintiff have any right to be reinstated. The trial judge was correct in dismissing the complaint.

The order of the Circuit Court of Cook County, dismissing the complaint is affirmed.

Judgment affirmed.

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

       Section 8b(6) of the Personnel Code (Ill Rev Stats 1963, c 127, §63bl08b(6)) provides that the probationary period shall not exceed one year.

       Ill Rev Stats 1963, c 127, § 63bl08b(6):
      “For a period of probation not to exceed one year before appointment or promotion shall be complete, and during which period a probationer may with the consent of the Director of Personnel, be discharged or reduced in class or rank, or replaced on the eligible list.”


author: MR. PRESIDING JUSTICE BURMAN

text:
    In the Matter of the Estate of Alice B. Atwood, Deceased. Thomas H. Fisher, Appellant, v. Michael De Bella, Continental Illinois National Bank and Trust Company of Chicago, Executor of the Estate of Alice B. Atwood, Deceased, et al., Appellees.
    Gen. No. 52,589.
    First District, First Division.
    June 10, 1968.
    Rehearing denied July 8,1968.

      Horace A. Young, of Chicago, for appellant.

      Roger W. Barrett, Burton E. Glazov, Leonard E. Handmacher, and Robert L. Phee, of Chicago (Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of counsel), Charles M. Nisen and Kai Allen Nebel, of Chicago (Nicholson, Nisen, Elliott & Meier, of counsel), and Irving B. Campbell and Spencer & Bishop, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Thomas Hart Fisher appeals from the dismissal of a petition filed by him to contest the Will of Alice B. Atwood as well as from various other orders entered in the supplemental Will contest proceedings. In addition, he appeals from certain orders entered in Citation Proceedings to Discover Assets and Information brought by Continental Illinois National Bank and Trust Company of Chicago, the Executor of the Will. The issues on this appeal arise solely on the pleadings and on the aforementioned orders entered thereon and in relation thereto.

Alice B. Atwood, deceased, executed a Will on December 2, 1964, and it was admitted to probate on April 4, 1966. Letters Testamentary were issued on that date to Continental Illinois National Bank and Trust Company of Chicago, the named Executor. By the terms of the Will the testatrix bequeathed her entire estate to one Michael De Bella. Citation proceedings were instituted in the Probate Division of the Circuit Court by the Executor against Fisher, among others. In an effort to locate the decedent’s assets sworn testimony of Fisher was taken on May 20th, August 8th, August 22nd, September 6th, and September 26th. On October 20, 1966, an order was entered in the Citation proceedings (nunc pro tunc as of October 18th) by Magistrate Kogut, instructing Fisher generally to produce “All books, papers and records in his possession or control which may contain information concerning the property of Alice B. Atwood, deceased, as required under the Citation heretofore served upon him.” The order further recited that Fisher was to produce certain specified documents which pertained to financial transactions involving the decedent’s assets during her lifetime. The matter was then continued to November 23, 1966.

On November 14, 1966, Fisher, referring to himself as “Petitioner and Complainant,” filed a supplementary proceeding to contest the Will of Alice B. Atwood in the Probate Division of the Circuit Court. In his petition, Fisher alleged that the previously probated Atwood Will was the product of a conspiracy between Michael De Bella and the two witnesses to the Will, as well as various other persons named as respondents, and he further alleged that the decedent was subjected to undue influence by them and lacked mental capacity to make the Will at the time she supposedly executed it. The decedent’s three heirs, Edwin K. Atwood, Richard W. Atwood and Elise Atwood Baldwin were made respondents as “interested persons” under sections 90 and 91 of the Probate Act (Ill Rev Stats 1963, c 3 §§90, 91). The petitioner stated that he too was an “interested person” within the intendment of the act.

On November 15th, the Executor served Fisher with a notice for the taking of his discovery deposition in the Will contest proceedings on December 15, 1966. Three days before the latter date the Executor served Fisher with a notice rescheduling the deposition to January 18,1967.

On November 23, 1966, in the Citation proceedings, Magistrate Kogut entered an order which recited that Fisher had been “evasive and dilatory” and had failed to produce certain documents set forth in the order of October 18th. The order further recited that Fisher was in contempt of court, and he was given until November 25th to purge himself of said contempt. On Novemher 25th, Fisher failed to appear in court and his attorney explained that Fisher’s absence was due to illness. The magistrate entered an order instructing Fisher’s attorney to present to the court on November 29th (the cause being continued until that date) an affidavit from Fisher’s physician to substantiate the alleged illness. On November 29th, Fisher’s attorney failed to produce the affidavit requested by the court, whereupon Magistrate Kogut entered an order “that a capias issue forthwith for the attachment of Thomas Hart Fisher.”

In late December of 1966 and early January of 1967, various respondents named by Fisher in the Will contest moved to strike Fisher’s petition. These respondents alleged that Fisher’s allegation that he was an “interested person” was a mere legal conclusion unsupported by fact, and therefore, it was insufficient to afford him the necessary standing under section 90 of the Probate Act to challenge the validity of the decedent’s Will. Certain of the respondents further alleged that they were not proper parties and should be dismissed. On April 24, 1967, Fisher, with leave of court, amended and supplemented his petition. He alleged therein that he was entitled to “a large part, if not all” of the estate of Alice B. Atwood under the terms of an earlier Will executed by her on July 15, 1948. Due to the alleged invalidity of the probated instrument and the existence of a prior valid will, Fisher claimed to be an “interested person.” On the same date, Edwin K. Atwood, another respondent in the Will contest, filed his motion to dismiss pursuant to section 48 of the Civil Practice Act. Edwin K. Atwood’s motion, in which he alleged that Fisher was not an “interested person” under section 90, was supported by affidavits of the movant and his attorney and by the deposition of one, Norman Crawford. The motion to dismiss and the affidavits and deposition in support thereof tended to show that the basis for Fisher’s purported interest, the 1948 Will, was executed as the result of Fisher’s undue influence upon Alice Atwood.

Further proceedings were had before Judge Pavlik in the Will contest action on April 27,1967, when the Executor moved the trial court to impose appropriate sanctions under Supreme Court Rule 219 (Ill Rev Stats 1967, c 110A, § 219) on the ground that Fisher had inexcusably refused and failed to appear for the deposition scheduled for January 18th. Following a hearing on the motion, Judge Pavlik entered an order requiring Fisher to appear for the taking of his deposition at a specified time and place on May 3rd. The order further recited that if Fisher should fail to appear on that date he would have until May 24th to answer or otherwise plead in response to the Executor’s motion. The Executor was given until June 1 to file its response to any papers filed by Fisher, and a hearing on the motion was set for June 5th.

Fisher did not appear on May 3rd. Instead he filed his verified response to the Executor’s motion on May 24th. In his response Fisher alleged, inter alia: (1) that at the time he filed his Will contest he was a resident of Florida and not of Illinois, and therefore, the court, under Supreme Court Rule 203, only had the authority to order Fisher to give his deposition outside of Illinois because Fisher was a defendant for the purposes of said rule; and (2) that he was willing to give his deposition in Washington, D. C., Ocala, Florida, or at any other place outside of Illinois reasonably determined by the court in the exercise of its discretion. In addition, Fisher filed a motion asking the court, among other things, to terminate the Citation proceedings, or, in the alternative, to stay, vacate or enjoin the order for his arrest in said proceedings.

On June 5th, the aforementioned motions by various respondents that they be dismissed as parties and the petition stricken as to them was granted by Judge Pavlik. The motion of Edwin K. Atwood to dismiss Fisher’s petition was continued until June 21st.

On June 6th, Fisher filed a motion before Magistrate Kogut for a suspension of all further citation proceedings and for an order staying his detention or attachment under the previously issued capias until ten days after a final judgment had been reached in the Will contest proceedings. The motion was denied.

On June 30th, following a hearing, Judge Pavlik entered an order finding, inter alia: (1) that Fisher had “unreasonably and inexcusably” failed to appear for the taking of his deposition on both January 18th and May 3rd, and that “at no time . . . has Thomas Hart Fisher appeared for said deposition, but has instead failed, without valid excuse, to pay heed to either the discovery rules or the Order of this court”; (2) that Edwin K. Atwood’s motion to dismiss the petition and its supporting affidavits and deposition stood uncontradicted because of the failure of Fisher to present any responsive pleading or evidence; and (3) that said uncontradicted motion, affidavits, and deposition showed conduct by Fisher which rendered the Will relied on by him legally void, thereby rendering Fisher not an “interested person” as defined in Section 90 of the Probate Act. The order further recited:

The Court having found herein that Thomas Hart Fisher is not an interested person as defined in section 90 in the Illinois Probate Act . . . and the Court having further found that the motion of Edwin K. Atwood, pursuant to section 48 of the Civil Practice Act, was well taken and the Court having further found that Thomas Hart Fisher has unreasonably and inexcusably failed to attend and give the depositions as required, each of the said findings being in itself a sufficient basis for the entry of an order dismissing, with prejudice, . . . the supplemental proceedings filed by Thomas Hart Fisher ... It is, therefore, ordered, that the Supplemental Proceedings filed by Thomas Hart Fisher to contest the will of the decedent, Alice B. Atwood, dated December 2, 1964, be and the same are hereby dismissed, with prejudice, and without leave to amend . . .

On July 14, 1967, Fisher filed a verified motion to vacate and amend the prior order of June 30th. He denied that the earlier Atwood Will had been executed as a result of his undue influence over the testatrix. He further stated that the court was in error in finding that he had “unreasonably and inexcusably” failed to attend the January 18th and May 3rd depositions because he had been prevented from attending by virtue of the capias issued by Magistrate Kogut in the Citation proceedings. On July 17, Judge Pavlik denied Fisher’s motion.

Fisher prosecutes this appeal from the following orders entered by Magistrate Kogut in the Citation proceedings : the order of October 18, 1966, ordering him to produce certain books and records pertaining to the estate of Alice B. Atwood; the order of November 23,1966, finding him to be in contempt of court; the order of November 25, 1966, requiring Fisher’s attorney to produce an affidavit of Fisher’s physician substantiating Fisher’s alleged illness; the order of November 29, 1966, which issued a capias for Fisher’s arrest; and the order of June 6, 1967, denying Fisher’s motion for an order staying his detention or arrest pending the outcome of the Will contest proceedings. He appeals from the following orders entered by Judge Pavlik in the Will contest proceedings: the order of April 27, 1967, instructing Fisher to appear on May 3rd for the taking of his deposition; the order of June 5,1967, dismissing various respondents; the order of June 30, 1967, dismissing the Will contest action with prejudice; and the order of July 14, 1967, denying Fisher’s motion to vacate and amend the order of June 30th.

We first address ourselves to the orders entered by Magistrate Kogut. Fisher complains that the order of October 18th, in its description of documents to be produced “was so extensive, so vague, so indefinite, and so unspecified that their production was both a literal and physical impossibility.” An appeal from this same order was dismissed by this court in Fisher v. Continental Illinois National Bank & Trust Co. of Chicago, 77 Ill App2d 102, 222 NE2d 160, wherein the court held that the order complained of was not final and appealable.

Likewise, we have concluded that the other orders complained of by Fisher, entered by the Magistrate, are not final appealable orders. The orders of November 23rd, November 25th, November 29th, and June 6th, were all entered in consequence of, and in relationship to, the finding of Magistrate Kogut that Fisher was in contempt of court for failing to comply with the court’s order of discovery for the production of certain documents. The record reveals that no penalty for the contempt was imposed upon Fisher. Therefore, the order finding Fisher to be in contempt cannot be considered a final order for purposes of appeal. County of Cook v. Triangle Sign Co., 40 Ill App2d 202, 189 NE2d 25; Flaningam v. Flaningam, 331 Ill App 418, 73 NE2d 652. Nor does the fact that a capias was issued for the attachment of Fisher render the orders entered in relationship to the finding of contempt appealable. Atwater v. Atwater, 35 Ill App2d 382, 183 NE2d 174. For the reason that the Magistrate imposed no penalty upon Fisher in the way of a fine or imprisonment the appeals from orders entered in relationship to the finding of contempt are dismissed. See also People ex rel. General Motors Corp. v. Bua, 37 H12d 180, 226 NE2d 6.

We next address ourselves to the orders entered by Judge Pavlik in the Will contest proceedings. We shall deal only with those issues revolving around the dismissal of Fisher’s petition for his failure to appear for the taking of his deposition, because we regard this resolution as dispositive of this appeal.

Under Supreme Court Rule 219 (Ill Rev Stats 1967, c 110A, § 219) the trial court has the authority to dismiss with prejudice the suit of a party who unreasonably refuses to comply with a discovery order entered by the court:

(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(v) . . . a judgment by default be entered against the offending party or that his suit be dismissed with or without prejudice; . . .

A finding that a party’s refusal to comply with discovery orders is unreasonable and the entry of a judgment of dismissal with prejudice thereupon is discretionary with the trial court, and the judge’s exercise of discretion will not be interfered with unless it appears to have been abused. Rosales v. Marquez, 55 Ill App2d 210, 204 NE2d 829. It is apparent to us that Judge Pavlik did not act unreasonably in the instant case when he dismissed the supplemental Will contest proceedings filed by Fisher. It is undisputed that Fisher failed to appear for the taking of his deposition on January 18th after having been served with notice. He also failed to appear on May 3rd at the time and place ordered by the judge. Furthermore, Fisher supplied no excuses for his behavior until after he had failed to appear both times. The foregoing facts amply justify the court’s finding that Fisher had unreasonably failed to comply with the Supreme Court Rules and with the court’s own order for discovery, and they also justify the court’s decision to dismiss Fisher’s petition. Kocis v. Kocis, 47 Ill App2d 68, 197 NE2d 460; Payne v. Payne, 31 Ill App2d 141, 175 NE2d 614. Fisher exhibited an intent to evade his obligations under the Rules; it is difficult to conceive of a more effective obstruction to the judicial process than that which was demonstrated here.

Fisher contended in his answer to the Executor’s motion for sanctions, and he raises the point here again in his brief, that his failure to give his deposition on May 3rd was not a sufficient basis for the dismissal order because at the time of the deposition he was a nonresident, and under Supreme Court Rule 203, the trial judge did not possess the jurisdictional authority to order him to give his deposition in Hlinois. He supports this thesis by contending that although he filed the Will contest action as “Petitioner-Complainant,” he was not a nonresident plaintiff within the meaning of Rule 203 because the Executor had instituted the original action to probate the Will. We find Fisher’s contention to be untenable. Supreme Court Rule 203 (Ill Rev Stats 1967, c 110A, § 203) provides that the court, in its discretion, may order a nonresident plaintiff to appear for the taking of his deposition at a designated place in this state. It is apparent to us that the purpose of this rule is to provide jurisdictional authority for the purpose of discovery over parties who establish the requisite contacts with Illinois by bringing an action in this state. Fisher instituted the Will contest action by filing his complaint and for this reason could properly be designated a plaintiff. Ill Rev Stats 1963, c 3, §90; Ill Rev Stats 1963, c 110, § 21(1). In any event, as we view the rule its purpose is jurisdictional, not semantic; therefore, Fisher, as a party seeking relief in a court of this state by bringing an action, was subject to the court’s authority to order him to appear in Illinois for a deposition.

Fisher next contends that the court’s finding that he had “unreasonably” failed to comply with discovery orders was unwarranted in view of the fact that he offered to give his deposition at various places outside of Illinois. Fisher, however, did not make this offer until he had failed to appear at the two depositions, he did not take advantage of the specified procedure for challenging the propriety of discovery orders. Supreme Court Rule 201 provides, in part:

(c) Prevention of Abuse.

(1) Protective Orders. The court may at any time on its own initiative, or on motion of any part or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression. (Ill Rev Stats 1967, c 110A, § 201(c) (1).)

We cannot say the court abused its discretion by not taking advantage of Fisher’s offers. In Coutrakon v. Distenfield, 21 Ill App2d 146, 157 NE2d 555, the court, affirming the striking of a defendant’s pleading and the entry of judgment in plaintiff’s favor for defendant’s failure to give his deposition, dealt with the question of defendant’s responsibility to raise his objections prior to the deposition pursuant to Rule 19-5 (the predecessor to present Rule 201 (c) (1)):

In the case at bar defendant was fully aware that he would be required to submit to a full discovery deposition. The initial proceedings should have made him conscious of the fact that plaintiff intended to resort to the sanction provisions if he did not. If the time and place for the taking of his deposition was not satisfactory to him or his counsel, adequate protection was afforded by Rule 19-5, subsection (2). He did not see fit to avail himself of these provisions. 21 Ill App2d at page 162.

In the instant case Fisher was aware of the Executor’s intention to resort to sanction provisions if he failed to attend the deposition scheduled by the court in its order of April 27th. If he objected to the time or place set for the deposition, or if he had suggestions of his own to make in that regard, he should have availed himself of the procedure set forth in Rule 201(c) (1). A litigant may not disobey the Court’s orders and then attempt to negotiate with the Court by offering to comply with an order more to his liking.

A similar disposition must govern our consideration of Fisher’s contention that the court erred by not issuing a Writ of Protection to prevent his arrest. The court was not presented with this request in a seasonable manner under Rule 201(c)(1), for at the time it was made Fisher had already disobeyed the court’s discovery order. It was clearly within the court’s discretion not to grant Fisher’s request and to dismiss his petition. Judicial orders are the most solemn acts of the court, and if they are not obeyed they cease to be judicial; therefore, the remedy for enforcing these orders represents the life line of the court.

Fisher also contends that he was not required to appear for deposition because (1) the notice of deposition was not served on all parties to the Will contest; (2) Judge Pavlik’s April 27 order requiring him to appear on May 3rd for deposition did not specify a “discovery” or “evidence” deposition; and (3) Judge Pavlik’s April 27 order merely gave Fisher an election of whether to appear or not on May 3rd.

We believe that these contentions are without merit. As to the first contention, Fisher failed to raise it before he failed to appear for the court order and deposition; furthermore, it is apparent that the only parties of record at the times when Fisher was served with notice of the forthcoming depositions were Fisher and the Executor. For this reason, the Executor was not obligated to serve the other parties named as respondents in the Will contest filed by Fisher for they, as yet, had not filed their appearances. Supreme Court Rule 104(b) (Ill Rev Stats 1967, c 110A, § 104(b)).

Fisher’s second contention should have been raised with the trial court before he disobeyed the court’s discovery order. His failure to raise this objection seasonably in the manner provided for by the Supreme Court Rules renders it ineffective as a method of calling into question the court’s exercise of discretion in dismissing the Will contest.

Finally, we cannot agree with Fisher’s interpretation of the order of April 27th; i. e., that it made his appearance on May 3rd for the taking of his deposition conditional. Fisher argues that the order gave him alternative choices: either he could appear on May 3rd, or he could fail to appear and explain his absence in a responsive pleading to the Executor’s motion to be filed before May 24th. The order of April 27th recited, inter alia:

Plaintiff, Thomas Hart Fisher, shall appear for the taking of his deposition by defendant, Continental Bank, on Wednesday, May 3, 1967, at Room 1955, 231 South LaSalle Street, Chicago, Illinois at 2:30 P. M. In the event plaintiff, Thomas Hart Fisher, fails to appear for his deposition on May 3, 1967 in accordance with this Order:

(a) Plaintiff, Thomas Hart Fisher, shall have until May 24, 1967 to move, answer or otherwise plead in response to defendant, Continental Bank’s Motion for Sanctions . . .

(b) Defendant, Continental Bank, shall have until June 1, 1967 to file its response, if any, to the papers, if any, filed by plaintiff . . .

(c) The hearing on defendant, Continental Bank’s Motion for Sanctions on Thomas Hart Fisher for Failure to Appear for Deposition is set for June 5

The foregoing order absolutely required Fisher to appear for the taking of his deposition on May 3rd. The fact that it also provided a briefing schedule and a date for hearing on the Executor’s motion did not render its command that Fisher appear any the less absolute. Furthermore, in relying on his own interpretation of the order, which was clearly unjustified in view of the order’s plain language, Fisher exposed himself to the imposition of sanctions for his failure to appear on May 3rd; and as we have heretofore pointed out, the dismissal of Fisher’s petition was an appropriate exercise of judicial discretion under the circumstances.

The order of the Probate Division of the Circuit Court dismissing the petition of Thomas Hart Fisher to contest the Will of Alice B. Atwood with prejudice, is therefore affirmed. That portion of the appeal from the orders entered by Magistrate Kogut in the pending and separate citation proceeding is dismissed.

Affirmed in part; appeals dismissed in part.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lloyd E. DuPree, Defendant-Appellant.
    Gen. No. 52,501.
    First District, First Division.
    June 10, 1968.
    John E. McKeigue, of Harvey, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis J. Carey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a bench trial, defendant, Lloyd E. DuPree, was found guilty of the offense of battery, a misdemeanor, and was admitted to probation for a term of two years, with the condition that the first 90 days be served at the Illinois State Farm.

On appeal, defendant contends that the judgment of the trial court should be reversed and the cause remanded for a new trial, because he did not knowingly and intelligently waive his constitutional rights to the assistance of counsel and trial by jury.

There was no verbatim transcript of the evidence or proceedings, and appellant DuPree prepared a proposed report of proceedings in accordance with Supreme Court Rule 323(c). The record indicates that the defendant was advised of his right to trial by jury, and that he elected to waive such right. The record does not show any advice to the defendant of his right to counsel or of any offer of assistance of counsel.

At the trial, Jessica DuPree, his former wife, testified that on April 23, 1967, defendant came into her house at 8731 South Moody, Oak Lawn, and threatened her with a steak knife. He forced her to accompany him to his car. They drove for about five blocks until the car ran out of gas. When they got out of the car, Mrs. DuPree began to scream, and defendant dragged her back to her house. There the defendant put a knife to her throat and ordered her to get into her car, which was parked in the garage. She entered the car and asked defendant to open the garage door, and when he did she escaped. Police arrested defendant a short distance from her home, and she signed a complaint against him. Later, she found defendant’s yellow jacket in the back of the garage with a steak knife rolled up in the jacket. Both were introduced into evidence.

Defendant testified and denied ever having seen the steak knife. He had gone to the residence of his former wife to inquire as to her safety and well-being because of the tornado of April 21, 1967, which had struck the Oak Lawn area.

The State concedes that the record is silent regarding advice to defendant by the court of his right to counsel or that he understanding^ waived that right. The State argues that in the light of Supreme Court Rule 401(b), which was effective at the time of defendant’s trial, May 25, 1967, the court was under no duty to advise the defendant of his right to counsel, since conviction for the offense of battery could not result in imprisonment in the penitentiary. Supreme Court Rule 401(b) became effective January 1,1967, and provides as follows:

“Procedure on Plea or Waiver. The court shall not permit a plea of guilty or waiver of indictment or of counsel by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understandingly waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understandingly waives that right. The inquiries of the court, and the answers of the accused to determine whether he understands his rights to be indicted by a grand jury and to be represented by counsel and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case.”

Defendant’s authorities include People v. Manikas, 87 Ill App2d 227, 230 NE2d 577 (1967), where the court discussed at length the question of whether the failure of the trial court to advise a defendant of his right to counsel was reversible error. In holding that it was reversible error, the court said (p 233):

“The right to the assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Section 9, Article II of the Illinois Constitution is not based upon whether the defendant is rich or poor. It is a right with which we are all endowed. Through interpretation by the reviewing courts this guarantee has been extended to include the furnishing of counsel to the indigent accused as a supplement to this right. Also, through interpretation by courts of review, a rule of law has evolved which makes it a duty upon the trial court to advise the accused, not only of his right to trial by jury, but also his right to the assistance of counsel.”

And on page 234:

“Failure to advise the defendant in the case at bar of his right to the assistance of counsel, rendered the plea of guilty to the offense here under appeal and the judgment of conviction and sentence, constitutionally invalid.”

The authorities cited by the State include People v. Howard, 41 Ill App2d 128, 190 NE2d 3 (1963), where the court said (p 134):

“It appears from a reading of the foregoing statute and Supreme Court Rule that in all criminal cases where the accused upon conviction may be punished by imprisonment in the penitentiary, if he is not represented by counsel, the court should appoint counsel for him before taking any plea on the indictment or information if indictment has been waived, and this should be done whether or not the defendant requests counsel but if the information does not charge an offense for which a person may be sentenced to the penitentiary, there is no duty on the court to advise accused of such right unless there are circumstances showing that he is not sufficiently competent to know of the right or how or when to claim it. People v. Williams, 399 Ill 452, 78 NE2d 512.”

Also, People v. Bill, 33 Ill App2d 432,179 NE2d 429 (1961) (Abst.), where it is said:

“The allegations in defendant’s motion relate to matters arising in the course of the trial. First among them is the charge that he was not advised of his right to counsel. The offense for which defendant was convicted is a misdemeanor. Ill Rev Stats, ch 951/2, § 234, 1959. Therefore, the supreme court rule which requires advice to the accused of his right to counsel is inapplicable, since that rule pertains only to cases where convictions may result in imprisonment in the penitentiary. Ill Rev Stats, ch 110, § 101.26,1959.”

After examining Rule 401(b), effective January 1, 1967, which is former Rule 26(3) without change, and the various authorities which have considered and construed the rule, we find the trial court here was under no duty to inform the defendant of his right to counsel, since the conviction for the offense of battery, a misdemeanor, could not result in imprisonment in the penitentiary. Also, we find no circumstances in this case which would justify a reversal of the judgment of conviction on the ground that defendant had been denied due process of law by not being advised of his right to counsel before proceeding to trial.

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

Affirmed.

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


text:
    Theresa Marie Latronica, Plaintiff-Appellee, v. Donald M. Latronica, Defendant-Appellant.
    Gen. No. 52,776.
    First District, First Division.
    June 10, 1968.
    Stone, Bolotin & Pogrund, of Chicago (Bertram A. Stone, of counsel), for appellant.
    No brief filed for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff filed a complaint for separate maintenance. Defendant filed a motion to dismiss this complaint and subsequently filed an answer and appearance. The case was heard as a contested matter and plaintiff was granted a decree of separate maintenance.

The only post-decree proceeding within 30 days after the entry of the decree was a petition for fees by the first attorney who represented plaintiff. A hearing on the petition was continued from time to time and on October 6, 1967, an order was entered vacating the decree of separate maintenance. No ruling was made regarding the attorney’s fees. Defendant’s subsequent petition to vacate the order of October 6, 1967, was denied and this appeal followed.

Defendant has filed his brief and abstract and complied with all the statutory requirements and rules of this court for prosecuting an appeal. No appearance or brief has been filed by appellee. This failure by appellee to comply with the rules of this court makes it unnecessary for us to discuss the case in full. We reverse the order of October 6, 1967, vacating the decree of separate maintenance. Parkside Realty Co. v. License Appeal Commission, 87 Ill App2d 374, 231 NE2d 654 (1967); Beinarauskas v. Beinarauskas, 90 Ill App2d 381, 234 NE2d 16 (1967); C.I.T. Corp. v. Blackwell, 281 Ill App 504 (1935).

The petition of plaintiff’s first attorney, which sought an order of court with respect to the matter of fees, is remanded to the Circuit Court of Cook County for hearing.

Judgment reversed and cause remanded with directions.

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


author: JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sterling Matthews, Defendant-Appellant.
    Gen. No. 51,402.
    First District, Third Division.
    June 13, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Chester P. Majewski 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 Alan Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SULLIVAN.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George James, Jr. Defendant-Appellant.
    Gen. No. 51,554.
    First District, Third Division.
    June 13, 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 John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

George James, Jr., the defendant, and Sidell Corley were indicted on the charge of armed robbery. Prior to the trial the defendant James made a motion to suppress a written confession which he had signed. The court held a hearing on that issue, found that the confession was made voluntarily, and denied the motion. The confession was offered in evidence at the trial and was admitted over the defendant’s objection. Defendant was found guilty by a jury and sentenced to serve a term of 15 to 30 years in the State Penitentiary. On appeal he rests his case entirely on the charge of error in the admission in evidence of the confession. The facts follow.

On April 8, 1964, a man brandishing a sawed-off shotgun robbed a grocery store at 10634 South Halsted Street, Chicago, Illinois, of approximately $300. On April 18, 1964, a police officer went to the defendant’s apartment and arrested Sidell Corley. The investigating officer found a loaded sawed-off shotgun in the apartment. Corley implicated the defendant in the robbery and the next day the defendant was arrested in his apartment and taken to the police station. At a police lineup he was identified as the robber by the owner of the grocery store and by a customer who was in the store at the time of the robbery. At 9:00 p. m. that day Herbert Portzen, a federal criminal investigator for the Treasury Department, was called into the case because defendant’s possession of a sawed-off shotgun may have violated the National Firearms Act, 74 Stat 149 (1960), 26 USC, §§ 5801-5862. Portzen obtained a signed statement in which the defendant confessed to purchasing the shotgun and using it in the commission of the robbery for which he and Corley were indicted. Corley signed a statement similar to the one signed by the defendant.

At the hearing on the validity of the confession, Portzen testified that he questioned Corley for about an hour and a half and obtained his confession. Then at about 1:00 a. m., he began to question the defendant. He told defendant of his right to remain silent, warned him that any statement he gave might be used against him and asked if he had an attorney. Defendant stated that he did not have an attorney and that he would be willing to take an oath that he would tell the truth. Portzen then administered an oath to the defendant and began questioning him, writing defendant’s answers in narrative style. When he finished, he handed the statement to the defendant for his approval and he has stated that it appeared to him the defendant was reading it. Portzen read the entire statement to the defendant and then read it to him a second time, page by page, so that defendant could make changes. Defendant made one change and asked Portzen to make an addition to the statement, which was done. Defendant signed each page, initialled the change and signed his name and “Chicago, Illinois” at the end of the statement. On cross-examination Portzen testified that he usually asked suspects whether they could read and write English, but that in this case he had forgotten to do so.

Defendant’s testimony at the hearing contradicted most of Portzen’s testimony. He admitted signing the statement but claimed he did not know it was a confession. He testified that he could not read, that Portzen had not administered an oath to him and had not read the statement to him and that Portzen had told him the statement he was signing was an admission that he knew Corley had used his automobile in a robbery. He stated that Portzen told him he could lose his car because it had been used in the robbery.

Defendant contends that the motion to suppress his confession should have been sustained because he never knowingly confessed to participation in the robbery. He alleges that he signed a prewritten statement which was in fact Corley’s statement and not his own, and that he did so because Portzen had threatened that if he did not, he would lose his car. Defendant argues that this contention is supported by the fact that his statement and Corley’s were similar. He also argues that Portzen’s credibility is rendered questionable by his admission that he forgot to ask the defendant whether he could read or write the English language.

The trial court heard extensive testimony at the hearing and after listening to arguments of counsel, denied the motion to suppress the confession. The decision of the trial court on the admissibility of the confession will not be disturbed unless manifestly against the weight of the evidence or unless the court has committed an abuse of its discretion. People v. Ackerson, 37 Ill2d 117, 224 NE2d 849; People v. Spencer, 27 Ill2d 320, 189 NE2d 270; People v. Lego, 32 Ill2d 76, 203 NE2d 875; People v. Wilson, 29 Ill2d 82, 193 NE2d 449. A reviewing court will not substitute its opinion for the opinion of the trial court on such issues unless the proof is so unsatisfactory as to justify a reasonable doubt. People v. Bernard, 77 Ill App2d 46, 222 NE2d 110.

In the instant case there was ample evidence to show that the defendant’s confession was made knowingly and voluntarily. The testimony of the federal investigator was credible and that credibility was not shaken by his admission that he forgot to ask the defendant whether he was literate. Neither do we find it incredible that the defendant would give a statement similar to the one his accomplice had given.

The trial court properly ruled on the admissibility of the confession.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Haywood Hanson, Otherwise Called Jimmie Hanson, Defendant-Appellant.
    Gen. No. 51,839.
    First District, Third Division.
    June 13, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, 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 Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a nonjury trial the defendant, Haywood Hanson, was found guilty of burglary and was sentenced to the penitentiary for not less than two nor more than five years. He contends that the evidence did not establish his guilt beyond a reasonable doubt.

During the night of April 20-21, 1965, the plant of the South Shore Waste Material Company, Chicago, was broken into and a typewriter, adding machine, check-writing machine, two checkbooks, personnel records and clothing were stolen.

Two checks and a check stub were recovered. On April 30,1965, the defendant offered the proprietor of a tavern a $144.84 check in payment for some drinks he had ordered. He had been in the tavern on other occasions but the proprietor did not know his name. The proprietor said he did not have enough money on hand to cash the check, but that he would take it to a currency exchange. The check was a South Shore Waste Material Company check payable to Robert Spilker. The defendant said his name was Robert Spilker and endorsed the check. The proprietor cashed the check at a nearby exchange and, after deducting the defendant’s bill, gave him the balance.

Later in the afternoon of the same day the defendant attempted to cash a South Shore check at another currency exchange. The police were called and arrived as the defendant was walking out the door. The teller pointed to him and said: “Stop that man, he got [sic] a stolen check.” The defendant was arrested and searched. A check payable to Haywood Hanson in the sum of $134.32 was found on him.

At the police station the defendant stated that he had received this check from a man named Jim Johnson in exchange for a load of scrap metal which he delivered that day to 35th and State streets. The defendant was searched a second time at the police station and a South Shore check stub was recovered from his wallet. He said he did not know how it got there.

At his trial the defendant denied that he committed the burglary, that the check stub was found on his person and that he cashed a check in the tavern. He testified that he was in the tavern on April 30th with Robert Spilker, a man who worked for him hauling scrap metal, bricks and other material. He said Spilker cashed the check. He insisted that he got the second check from Johnson and that Johnson had an office at 3505 South State Street. He said he received the check in payment for 7,000 bricks and some metal which he had bought at a building demolition site and that he transferred this material from his truck to Johnson’s truck in an alley-near Johnson’s office. He testified further that when the teller at the currency exchange informed him that the check was no good, he suggested calling the police and waited five minutes for them to come. He freely admitted three prior convictions and said that he pleaded guilty to the prior crimes because he was guilty, but that he was not guilty of the burglary of the South Shore Waste Material Company.

In rebuttal the police officer testified that a driver’s license and a social security card bearing the name of Robert Spilker were among the items found on the defendant’s person when he was searched at the police station.

The defendant advances seven reasons why the evidence was insufficient to prove his guilt: the interval of ten days between the burglary and his arrest was too great to establish recent possession of stolen property; there was no evidence that he had exclusive possession of the stolen checks during this interval; his explanation about the checks overcame any presumption of theft arising from possessing them; the police did not search his home to see if the articles taken at the burglary were there; the police made tests for fingerprints at the burglarized company but nothing was done to compare them to his; the State did not call Jim Johnson as a witness and the State failed to have Robert Spilker testify.

The last four points are frivolous. There was no testimony that the defendant offered to let the police search his home and he has no reason to complain that the police did not attempt to build a stronger case against him by obtaining a search warrant and conducting such a search. Although there was testimony that the police looked for fingerprints at the South Shore plant, there was no testimony that suspicious ones were found. The defendant was the only one who said there was a Jim Johnson. The police could not find Johnson in the neighborhood of 35th and State and could not find a metal dealer or a junkyard in that vicinity. It was the defendant’s privilege, not the State’s obligation, to produce him if he existed. There was reason to suspect that Hanson and Spilker were the same person: the tavern keeper testified that Hanson said he was Spilker and he carried Spilker identification cards. If there was a Robert Spilker he was known to and worked for the defendant. The defendant had the right to subpoena anyone he wished; since he knew Spilker’s whereabouts better than anyone else and since it would have been to his advantage to have produced him, he cannot complain that the State did not do so.

Aside from the possession of the stolen checks and the check stub, there is no evidence which connects the defendant with the burglary. However, recent and exclusive possession of stolen goods after a theft, robbery or burglary is sufficient to raise an inference or presumption of guilt unless the attending circumstances, or other evidence, overcomes the inference by creating a reasonable doubt of the defendant’s guilt. People v. Strutynski, 367 Ill 551,12 NE2d 628 (1938). It is sometimes stated that if unexplained, the recent and exclusive possession of stolen property gives rise to an inference of guilt which may be sufficient to sustain a conviction unless there are facts and circumstances which leave in the mind of the trier of fact a reasonable doubt of guilt. People v. Franceschini, 20 Ill2d 126, 169 NE2d 244 (1961). In People v. Bennett, 3 Ill2d 357, 121 NE2d 595 (1954), the court put it this way:

“This court has often announced the rule that the possession of stolen property, the proceeds of a burglary or larceny, soon after the commission of the offense, is evidence of the guilt of the person or persons in whose possession it is found and is sufficient to warrant a conviction unless such possession is explained or unless there appears from all the evidence a reasonable doubt of the defendant’s guilt.”

The defendant contends that the explanations he gave about the checks nullified whatever inference of guilt might have been drawn from the possession of them— particularly since his explanations were neither denied nor proved false.

When the courts speak of an explanation they do not mean that any explanation overcomes the inference of guilt. It must be a satisfactory explanation — one that the trier of fact finds reasonable and acceptable. This does not mean that a defendant must assume the burden of giving a satisfactory explanation for the possession of stolen property or be found guilty if he does not, for the burden is always upon the State to prove him guilty beyond a reasonable doubt. It does mean, however, that the inference arising from the recent and exclusive possession of stolen property casts the burden of going forward with the evidence upon the defendant. If no explanation is made the inference maintains and the weight to be given it is for the trier of fact to decide. If an explanation is made, the acceptance or rejection of the explanation is also for the trier of fact. The defendant’s explanations were not accepted by the trial judge and it cannot be said that they should have been. The defendant is mistaken when he states that his explanations were not denied. They were denied by the total and contrary evidence of the State; no specific contradiction had to be made in rebuttal to everything he asserted by way of explanation.

Whether the nine or ten days which intervened between the burglary and arrest constituted recent possession, was a question of fact for the trial judge. In People v. Litberg, 413 Ill 132, 108 NE2d 468 (1952), the court said:

“The presumption of guilt arising from possession of stolen property does not assume that there is any certain time within which the possession may be said to be recent and, therefore, proof of guilt. As a practical matter, as the time between the larceny and the possession is enlarged, the necessity for additional evidence arises. Ordinarily, therefore, the question of whether possession of stolen property is recent enough to raise a presumption of guilt is a question of fact for the jury, or for the trial court where a jury is waived, although in extreme cases it may become a matter of law.”

In People v. Kubulis, 298 Ill 523, 131 NE 595 (1921), some of the property supposed to have been stolen was found in the homes of the defendants 24 and 25 days after the burglary. The court reversed their conviction because an instruction submitted by the State, among other faults, assumed that possession of stolen goods 25 days or more after a larceny was evidence of guilt of larceny. The court said:

“The possession must be so recent as to indicate that the possessor must have taken the property, and where it is so remote in time as to have given fair opportunity to the thief to dispose of the goods and to the defendant to acquire them honestly, possession is slight, if any, evidence of guilt and its weight is a question of fact for the consideration of the jury, and not to be determined as a question of law by an instruction that the evidence is sufficient to convict.”

Ten days may be too long in some instances and not in others. Each case must be decided on its own facts and attending circumstances. Blank payroll checks were stolen in this case and two of the checks, made payable to fictitious employees, were in the possession of the defendant. The time necessary to prepare the checks, plan the procedure for cashing them and selecting the places where the attempts would be made, were some of the factors the trial court had to consider. His conclusion that ten days met the requirement of recent possession is not error. Forty-nine days were not considered too long in People v. Malin, 372 Ill 422, 24 NE2d 349 (1939). In Malin a radio was stolen in a burglary that took place March 11, 1938. The radio was recovered in the defendant’s room on April 28, 1938. The court said:

“Approximately six weeks had elapsed from the time of the burglary until the radio was found in Malm’s possession. Recency of possession is ordinarily a question of fact for the jury, or for the trial court when a jury trial has been waived, although in extreme cases it may become a matter of law. In determining this question, time is an important element to be considered, but is not the only one. The circumstances and character of the goods, their salability, whether they are cumbersome or easily portable are also among the factors to be considered. No definite time can be fixed as to when, as a matter of law, possession is or is not recent. [Citations.] In our opinion we cannot say, as a matter of law, that possession of a radio in one’s room six weeks after its theft, is not a recent possession sufficient to warrant a conviction, in the absence of any evidence or circumstances tending to overcome the presumption of guilt it raises.”

The lapse of time between the burglary and the arrest has little relevancy in determining the exclusiveness of possession. While there is no direct evidence that the defendant had exclusive possession of the stolen property during this interval, there is likewise no evidence that he did not. He was in exclusive possession at the time of his arrest and this is sufficient to satisfy the presumption.

The judgment of conviction is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.