author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Defendant in Error, v. Delores Abernathy, Plaintiff in Error.
    Gen. No. 50,591.
    First District, Third Division.
    May 5, 1966.

      William D. Martin, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. J. Gildea, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant sued out a writ of error in the Supreme Court to review her conviction on the charge of unlawful sale of a narcotic drug. The case was thereafter transferred to this court. Trial was had before the court without a jury. Defendant was sentenced to the penitentiary for a term of ten years to ten years and a day.

The defendant contends (1) that the defendant was not permitted to properly cross-examine the State’s key witness, and (2) that the closing argument by the State was inflammatory, not based on fact, not based on evidence and unfair.

On November 14,1962, police officers visited the apartment of Kim Rivera and found her unclothed and in the presence of an unidentified man, also unclothed. The police officers dismissed the man, and while Kim Rivera was dressing they searched for narcotics in her clothing. When she was dressed, Miss Rivera was given $12.50 in marked money, and a piece of Kleenex to be used as a mark. The money consisted of twelve single-dollar bills and one fifty-cent piece. The serial numbers of the dollar bills were recorded and the coin was inscribed with the letter “W.” Miss Rivera and the police officers pro-, ceeded to a building at 18 North Hoyne Avenue in the city of Chicago. Miss Rivera, alone, went to the rear porch of an apartment while the officers remained below. Officer Walsh testified he saw nothing happen on the second floor porch. Officer Kienzle testified he saw Miss Rivera on the porch, heard a window being raised and after about five minutes met Miss Rivera at the bottom of the stairs. He took a package from her, which, after being field tested, proved to be heroin. Miss Rivera testified that she dropped the Kleenex at the rear porch door. The police officers then proceeded to the front entrance of 18 North Hoyne while two other officers went to the rear. Miss Rivera remained in the police car. Officer Walsh testified that he knocked down the front door at the second floor apartment and found the defendant standing near her bed and one Albert Banks standing over the flushing toilet. Officer Kienzle testified that Banks was straddling the bowl in the process of pulling up his trousers as if surprised by the police. No narcotics were found in the apartment nor on the defendant’s person, but a policeman found the fifty-cent piece, which had been previously inscribed with the letter “W,” in the apartment. No other marked money was found on the person of the defendant or in the apartment.

Miss Rivera testified that she ascended a flight of stairs at 18 North Hoyne while the officer watched and that she approached a window at the rear of the second floor landing leading to the defendant’s apartment and thereupon purchased from the defendant a quantity of heroin in exchange for the $12.50 given to her by the police officer. She then descended the stairs where she met Officer Kienzle, who followed her to a nearby location in accordance with a prearranged plan. She gave the officer a small package, the contents of which was then examined and, as heretofore mentioned, were found to be heroin.

When the officers had ascended the stairs to the second floor apartment they knocked on defendant’s apartment door and announced their office. There being no acknowledgment, and the officers hearing “a scuffle of feet,” they forced open the door. Certain testimony indicates that the male visitor, who was straddling the commode in the bathroom, had his trousers pulled up and the toilet was in action. The police officers also testified that they found a wad of bills on Albert Banks, who was in the apartment with the defendant, but that they returned it to him and it probably was inventoried at the police station. Both Banks and the defendant were arrested.

The defendant’s counsel contends that in cross-examination of Kim Rivera he met with harassing objection tactics from both attorneys for the State, and that after the trial judge ruled that Miss Rivera might answer, the Assistant State’s Attorney persisted in his objection on the theory of hearsay.

From an examination of the record it appears that the prosecutors raised numerous objections to questions put to Miss Rivera on cross-examination, but the record also reveals that in each instance, except one, the court overruled the objection and permitted the witness to answer. The record further fails to disclose that the objections raised by the prosecutors were interposed for the purpose of harassment. The objections raised by the prosecutors went to the admissibility of certain evidence on the basis of both hearsay and relevancy. The defendant does not contend that the trial judge erred in his rulings but merely that the defendant’s counsel was harassed during the trial by repeated objections. We do not believe from reading the record that the objections made by the prosecutors were made for the purpose of harassment. Furthermore, the record before us discloses that no objection was made to the conduct of the prosecutors during the course of the trial, and it is a general rule that alleged misconduct of a State’s Attorney must be objected to at the time in order to be properly presented for review. People v. Karatz, 365 Ill 255, 260, 5 NE2d 842. It cannot be said, based upon the record before us, that the defendant did not have adequate opportunity to cross-examine Miss Rivera, nor can it here be argued that the defendant was in any way prevented from cross-examining the witness because of any conduct of the prosecutors, since all of the court’s rulings, except one, were favorable to the defendant and no complaints were raised because of successive objections urged by the prosecutors. We conclude, therefore, that the defendant’s right to a fair and impartial trial was in no way affected by the alleged misconduct of the prosecutors.

Defendant next contends that the State’s closing argument was inflammatory, not based on fact or on evidence and unfair. Defendant complains that the following statements of the State’s Attorney were highly prejudicial: (a) “. . . plus somebody that may be here under perhaps fear of her life (Kim Rivera) . . . .” (b) “. . . if you believe the Defendant there is no escaping the fact that you believe these two police officers stole $145.00 from her house.” (c) “. . . if you believe her stating that she had $145.00 on top of the dresser and she has never seen it since and these two police officers never recorded it on any inventory or never found it then you must believe they stole it.” (d) “. . . the avalanche of Officer Kienzle’s testimony that he saw the window open, that he saw a light in behind there, that he saw the transaction happen.” (e) “. . . I think the Court can reason to where the figure $12.50 came to and how the 500 piece got on the dresser.” (f) “It is quite evident that after the sale was made . . . Bafcks grabbed the $12.00 or the Defendant grabbed the $12.00 . . . and quickly flushed it down the toilet.”

There were other statements made by the prosecutor during the argument to which the defendant now objects. However, the record discloses that there were no objections raised when the complained of statements were made, and errors cannot be assigned on arguments unless objections are made to the same in the course of argument, and ruled upon by the court. People v. Weisberg, 396 Ill 412, 71 NE2d 671; People v. Sturch, 389 Ill 82, 58 NE2d 873.

Defendant complains that many of the statements made by the prosecution in its closing argument were matters not in evidence and relies on People v. Provo, 409 Ill 63, 97 NE2d 802. The case before us is readily distinguishable from the Provo case in that the Provo case involved a jury trial, and the case before us was tried without a jury by the court. There the Supreme Court condemned statements by the State’s Attorney in his closing argument to the jury concerning matters which were not in evidence, and to which objections had been urged in the trial court. When the trial court is the trier of the facts every presumption will be accorded that the judge considered only admissible evidence on reaching his conclusion. People v. Robinson, 30 Ill2d 437, 197 NE2d 45. It is also the rule that a trial judge sitting without a jury is presumed to consider only proper argument, and an error in a final argument does not require reversal where it is unlikely that it influenced the final result. People v. Miller, 30 Ill2d 110, 195 NE2d 694. While some of the statements addressed to the court in the closing argument were not based upon the evidence before the court, there was sufficient evidence to prove the defendant guilty beyond a reasonable doubt. We do not believe that the trial judge was prejudiced by the argument advanced by the prosecutor. Miss Rivera testified that she recognized the defendant at the time she made the purchase and that evidence, together with the corroborating testimony of the arresting officers, was ample to sustain the court’s finding of guilt. People v. Perkins, 26 Ill2d 230, 186 NE2d 330.

From a reading of the record we are satisfied that the defendant was proven guilty beyond a reasonable doubt, and the defendant does not in her brief question that the evidence was sufficient to sustain the finding by the trial judge. Since this case was tried by the court without a jury, and since every presumption will be accorded that the judge considered only admissible evidence and only proper argument, we believe that the contentions raised by the defendant did not constitute reversible error.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Taylor, Defendant-Appellant.
    Gen. No 49,939.
    First District, Fourth Division.
    May 6, 1966.

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

delivered the opinion of the court.

Defendant, Robert Taylor, was convicted after a bench trial of armed robbery and was sentenced to the penitentiary for not less than three nor more than five years. In this appeal defendant contends that he was not proven guilty beyond a reasonable doubt.

The uncontroverted evidence reveals that on April 20, 1964, three men came to the apartment of the complaining witness, Almore Freeman, and told him that they had come for a record player which belonged to Moscow Dowdy. Having gained entrance to the apartment the men proceeded to rob Freeman of $800 at knifepoint. Freeman testified that:

I asked them into my apartment. The record player was rolled behind a chair. When I reached over the chair to get the record player, Dowdy [referring to Eldridge Dowdy] caught me from behind. . . . Eldridge Dowdy was choking me and the other fellow had a knife in my side. He was sitting on my feet [indicating the defendant, Robert Taylor]. It was light in my apartment. The men were there about five minutes I’d say. The defendant was going through my pockets. . . .
This defendant was going in one pocket and the other one was going in the other pocket. They held a knife in my side and he go in the other pocket. . . . Then the men left the apartment and the next time I saw Robert Taylor was at the preliminary hearing. The three men were together, Eldridge Dowdy, and the other fellow, I don’t know his name, and the defendant, Robert Taylor.

Freeman identified the defendant as one of the robbers at a preliminary hearing and again during the trial.

Detective Leonard Walker testified and stated that he was the investigating officer assigned to the case; that on April 80 he received a tip that a person by the name of Gang Busters was a participant in the subject robbery and was walking west on 47th Street; that he observed two men, the defendant and McClellan Hudson, and mistook Hudson to be the man known as Gang Busters. The witness further testified that:

I took Robert Taylor and placed him in another part of the cell, through error, and concentrated our investigation on the second man, McClellan Hudson. Early in the morning at the 48th Street station we had a show up with five men and the complainant, Mr. Freeman, was brought to the station. He viewed the five men, he did not identify anyone. At this time, the defendant, Robert Taylor, was in his cell.
I released Robert Taylor before he’d ever been viewed by the complainant. I also released McClellan Hudson.

Walker testified that he later arrested Eldridge Dowdy and Anthony Heager and that:

After these two men were arrested, a showup was conducted on May 3 and in the lineup were Anthony Heager, Eldridge Dowdy and Eldridge’s brother, Moscow Dowdy. Mr. Freeman . . . was brought in to view these people that we had in custody. At this time Robert Taylor had been released. About an hour, an hour and a half after this lineup containing Eldridge Dowdy and Anthony Heager, Robert Taylor was arrested. We brought him into the area and made out the papers and then shipped him on to the second district. The next day we went to court to a preliminary hearing. . . .
There was no showup conducted between the time of arrest of Robert Taylor and before going to court in which Robert Taylor was involved. The first time we confronted Robert Taylor with the complainant, Mr. Freeman, was in court on the next day, after he was arrested for the second time.

McClellan Hudson testified for the defendant and stated that the first lineup was held at 9:00 p. m., not in the morning; that the defendant was also in the lineup but the complaining witness failed to identify anyone; and that he knew the defendant as “Gang Busters.”

Defendant testified in his own behalf, denied participation in the robbery and corroborated the testimony of Hudson with regard to the lineup.

Detective Walker testified in rebuttal and stated that he was mistaken on direct examination with regard to the time of the lineup and agreed that it was held at 9:00 p. m.; and that he thought Hudson was the man called Gang Busters because:

[T]he informer I had was such a good informer, I relied on his ability. Now, he told me that the man I wanted was Gang Busters, that he was around the comer; and, when he [the informer] walked past him and took off his hat, he took his hat off in front of Mr. Hudson when he meant to take off his hat in front of Mr. Taylor. Therefore, I concentrated all my efforts to Mr. Hudson, thinking he was Gang Busters.

Defendant contends that he was not proven guilty beyond a reasonable doubt and points out that Detective Walker was mistaken in his testimony on direct examination as to the time of the lineup in which McClellan Hudson was placed. From this defendant argues that the testimony of Walker that defendant was not placed in the lineup with McClellan Hudson, which is contrary to the testimony of Hudson and the defendant, should not be believed; that the court should have believed that the complaining witness could not identify defendant from that lineup; and that therefore the identification of the defendant by Freeman in open court was not sufficiently positive. In People v. Mack, 25 Ill2d 416, 185 NE2d 154, the court stated at pages 421, 422 that:

We have repeatedly held that where a case is tried without a jury the determination of the credibility of the witnesses and the weight to be given their testimony is for the trial judge, and this court will not substitute its judgment on such matters for that of the trial judge, who saw and heard the witnesses.

In the instant case the trial judge saw and heard the witnesses testify with regard to the lineup in question. We will not substitute our judgment for that of the trial judge.

Defendant also argues that even if, as the State asserts, he was first confronted with the complaining witness in open court at the preliminary hearing and identified at that time while standing with the two other defendants, the circumstances were such so as to preclude an impartial, positive identification. The manner in which an identification is made goes only to the weight to be given to the identification by the trier of fact. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599. We would point out that the defendant was also identified by the complaining witness during the trial.

After a careful examination of the record we are of the opinion that the evidence warranted the trier of fact in finding the defendant guilty beyond a reasonable doubt. The decision of the trial court is affirmed.

Affirmed.

ENGLISH and MCCORMICK, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    City of Chicago, a Municipal Corporation, Petitioner-Appellee, v. George F. Harding Collection, Defendant-Appellant.
    Gen. No. 50,042.
    First District, Fourth Division.
    August 4, 1965.
    Supplemental opinion May 6,1966.

      Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Sherwood K. Platt, George W. Harnman, and David S. K. Platt, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel, and Thomas A. Foran, Special Assistant Corporation Counsel, of Chicago (Thomas A. Foran and Thomas T. Burke, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from a judgment entered on a jury verdict for $140,000 as compensation to defendant for property taken by the City through condemnation for conservation purposes as part of the Hyde Park-Kenwood Renewal Project. The property which is the subject of these proceedings is located at 4853 South Lake Park Avenue, Chicago, and consists of land having a frontage of approximately 160 feet, improved with four buildings known collectively as the George F. Harding Museum. The premises had housed numerous exhibits of paintings, ship models, musical instruments and many other kinds of art objects, particularly a noted collection of medieval armor.

We are aware of no decided case concerning condemnation of a building used for museum purposes. Because of the extraordinary character of the premises it was determined by the trial court that the usual measure of compensation — fair market value — would be applied only to the land, and that the improvements would be considered as “special use” buildings compensable on the basis of replacement or reproduction value less depreciation. Both parties concede the appropriateness of these ground rules, and no point has been raised concerning them on this appeal. United States v. Two Acres of Land, 144 F2d 207, 209 (7th Cir 1944); In re Simmons, 127 NYS 940, 941. As the trial developed, the record relates primarily to replacement rather than reproduction value.

One contention which has been presented as a ground for reversal relegates to the background all other points raised. It involves the application of simple arithmetic to the pertinent provision of the Illinois Bill of Bights and, in our opinion, disposes of the appeal without need for consideration of other arguments.

Article II, § 13 of the Illinois Constitution states: “Private property shall not be taken or damaged for public use without just compensation.” It has been repeatedly held that this provision is “self-executing,” which is to say that it is not susceptible of impairment by the act of any branch of government, nor is any legislation required for its enforcement. People ex rel. Markgraff v. Rosenfield, 383 Ill 468, 50 NE2d 479; Cohen v. City of Chicago, 377 Ill 221, 36 NE2d 220; People ex rel. Alexander v. City of Mt. Vernon, 404 Ill 58, 88 NE2d 45.

It is also well settled that the owner of property taken for public use is entitled to that amount of compensation which will put him in as good financial condition as he was when the condemnation petition was filed. County Board of School Trustees v. Elliott, 14 Ill2d 440, 152 NE2d 873. And nothing short of an award of this character will conform to the constitutional requirement. Illinois Cities Water Co. v. City of Mt. Vernon, 11 Ill2d 547, 144 NE2d 729.

These are broad-gauge principles, and, while of course they are binding upon the courts, they should also be understood as requiring strict adherence by a condemnor in the presentation of its case. In fact, this type of case is not the ordinary adversary proceeding in that the condemning authority has the burden of proving the defendant’s “just compensation.” The County of Cook v. Holland, 3 Ill2d 36, 40, 119 NE2d 760; Department of Public Works & Bldgs. v. Bloomer, 28 Ill2d 267, 270, 191 NE2d 245; Department of Public Works & Bldgs. v. Bohne, 415 Ill 253, 262, 113 NE2d 319. While it is likely, of course, that there will be differences of opinion as to value among the various witnesses, the condemnor’s burden must be construed to require, as a minimum, that there be competent evidence of value as to all the property to be taken. As stated in IPI (committee comments on Section 300.30), “The true burden is one of introducing evidence and the decision on whether it has been met is for the court, not the jury.”

The City’s case, as presented by five witnesses, was made on the perfectly acceptable theory of replacement cost less depreciation. But the City’s witnesses testified consistently about a “replacement” building which would be substantially smaller in square footage and with less than half the cubic footage of the present buildings. To ignore the essential elements of floor space and ceiling height in the “replacement” of a museum building is to ignore also the constitution’s command for just compensation.

Edward Olson, a witness for the defendant, testified to having made a computation of the size of the present buildings. He said that they contain 27,444 square feet and 465,546 cubic feet. Harry Schlaes, for the City, testified that the buildings total 26,700 square feet “in round figures.” William Epstein, also for the City, testified to a figure of 26,811 square feet. The City’s witnesses did not testify to the cubic footage of the building complex; two stating expressly that they did not know and did not consider the cubic footage of the Harding buildings, and the others taking the same position by inference.

The witnesses called by the City were a construction engineer, an architect, a photographer, and two real estate broker-appraisers. The photographer, who submitted pictures of the Art Institute, did not testify as to the size of a “replacement” building, but all the other witnesses uniformly talked about a building of approximately 20,000 square feet. The architect submitted preliminary drawings of such a building made in cooperation with the engineer, and these exhibits were admitted into evidence. With minor variations it may be said that all the City’s “replacement” evidence related to a building such as the one represented in the architect’s drawings. As shown by these drawings, it would have a total square footage of approximately 18,850, including walls, stairways, etc., and a 4,000 square foot basement area. Reduced to interior plane space (by excluding only the walls) the building’s area for all floors would be about 18,000 square feet. The cubic footage on the same basis would be about 230,000 as compared to 465,546 in the present buildings. Thus the square and cubic measurements of the building proposed by the City would have to be increased approximately 50% and 100%, respectively, to equal the dimensions of the buildings being “replaced.” The critical importance of the size of such a building is, of course, due to the fact that the City’s witnesses used it as the basis for their opinions concerning construction costs with the expectation that these, in turn, would affect defendant’s ultimate compensation.

The only justification suggested by the City for basing its case on such a disproportionately small “replacement” building is found in the testimony of its four witnesses to the effect that only 20,000 square feet of the present buildings were being used for exhibition purposes. Codd (an architect) said: “I arrived at 20,000 square feet for the replacement building by the area needed to equal the exhibited space of the Harding Museum.” Schlaes (a real estate appraiser) simply stated: “I would replace the structures with a two-story building with about 20,000 square feet. . . . It (a replacement building of 20,000 square feet) is not equal in total area to the present buildings because there are portions of the existing buildings that are not being used as a museum.” Kuehl (an engineer) testified: “I estimated the cost of the replacement of the whole structure. ... We can construct a building of equal area to house all of the exhibits that are contained in these four units, which are approximately 20,000 square feet.” Epstein (a real estate appraiser) said flatly: “They don’t need all of that space for a museum.”

The present buildings include an apartment as a residence for the curator. The City’s architectural plans for its proposed “replacement” building omit such space entirely. The architect, Codd, testified: “I do not have any place for the curator to live in the building I designed. That could be accommodated by a penthouse which is not shown in my drawings. I do not look at the curator as a guard.” Engineer Kuehl cooperated with Codd in preparing and testifying about these plans, though he, too, was aware of the existence of a curator’s apartment in the condemned buildings. Witness Schlaes made no mention of a curator’s apartment in his proposed “replacement” buildings. Witness Epstein, in describing his proposed 20,000 square foot building (including a partial basement and similar in general outline to that of the City’s architect) stated that living quarters for the curator would be included. He did not, however, explain how this could be done, the only inference being that the exhibition space in the architect’s plan would have to be cut down.

The City’s witnesses’ treatment of cubic space for exhibition purposes is exemplified by their testimony concerning the medieval armor exhibit. Codd said that the building he designed would have 12-foot ceilings on both floors; that he did not measure the height of any exhibits in the Harding Museum, the highest of -which (horse and rider) he estimated at 9 feet; that his design included a “G-reat Hall” of about 700 square feet with a two-story ceiling of 24 feet to accommodate the exhibit of armored knights mounted on horses. Kuehl testified that “the horse exhibits would look perfectly well under a 12-foot ceiling provided that you didn’t put them on a platform. They are on platforms now but they don’t have to be. You could put them on the floor or on a 6-inch platform.” He also said that high ceilings are uneconomical as to both heating and decorating costs. Epstein estimated that the horse and rider exhibits were 9 or 10 feet high and would fit under a 12-foot ceiling “if they weren’t on some dais type of platform, possibly.” He, too, however, testified that he had not measured any of the objects in the museum. Schlaes also had not measured any exhibits. He thought the mounted riders were 7% to 9 feet high. Only defendant’s witness Otlewis testified to having measured these exhibits. He said the highest was 15 feet 10 inches from the floor to the tip of the lance which was positioned not straight up but on an angle; two others were 13 feet high. They stood on pedestals 18 to 24 inches high.

The City’s advocacy of 12-foot museum ceilings seems strange, indeed, under these circumstances. That it was not inadvertent, however, is demonstrated hy the City’s witness McCann. Obviously for the purpose of showing that the proposed ceilings were adequate McCann, an amateur photographer, was sent to the Art Institute to take Polaroid pictures. He testified: “The ceiling height varied, I would say, from 8 feet to possibly 12, a few higher. There was a good variance. In the main stairwell area it was substantially higher.” Yet defendant’s witness McNab, Director of the Art Institute, testified that in its 96 galleries most of the ceilings were between 15% feet and 20 feet high, with some 25 to 25% feet and some as low as 14 feet, with only a few special galleries in the decorative arts department having ceilings under 14 feet.

McNab also described the display of armor at the Metropolitan Museum in New York. He related that it is in a room 200 feet long with a ceiling 40 or 50 feet high; that the walls are simulated stone not unlike the Harding castle construction; and that some of them are covered with fabric similar to that in the Harding Museum. In this regard it should be noted that the Harding building containing the armor is a simulated ancient castle, a desirable background, according to McNab, for display of the medieval material — a view shared by New York’s Metropolitan Museum. On the other hand the City’s real estate broker-appraiser Epstein testified: “The castle is consistent with the display according to the way Mr. Harding wanted to display it. My primary disagreement is the way Mr. Harding chose to display it.” Further on the other hand, Codd, the City’s architect, testified that it is inappropriate to design a structure in the period of the setting because it is not an authentic backdrop for the exhibition; that a more authentic Norman castle would have a moat and drawbridge, guarded gates, and, instead of the imitation parapet, it should have more of an embattlement with cannon stations mounted on the roof.

MeNab also testified that some of the painted and stenciled ceilings in the Harding buildings were considered by him as objects of art, and that it would be impractical to attempt to move them. The City’s real estate broker-appraisers nevertheless were permitted to testify that they gave no particular value to the painted ceilings, but treated them as ordinary ceilings. As stated by Schlaes: “I don’t regard those ceilings as art objects. I wouldn’t have them in my home.”

The City also proposed “replacement” of travertine marble staircases with wood or possibly steel staircases. The attic space was to be eliminated completely from consideration as to compensation because it “would not be a good place to store art objects,” according to one of the City’s real estate appraisers. The wall interiors in the Harding buildings were to be “replaced” not with the kind ordinarily found in a museum but with concrete blocks which could be painted. MeNab pointed out that it is possible to hang pictures on a concrete block wall but that it would break and require repair every time a nail was put in. He testified: “I know of no museum that has a concrete wall constructed in any gallery in which it is proposed to display any kind of work of art. They might have it in the storage area or basement, as we do, but you certainly wouldn’t have it in the galleries.” The City’s engineer witness conceded on cross-examination that concrete block interior walls “are used in automobile showrooms, gasoline stations, office portions of factories, and in some cases, where a man wants his basement of a dwelling finished, sometimes we use them there.”

In concluding their testimony, three of the City’s witnesses gave their separate opinions as to the cost of construction for the proposed “replacement” building as follows:

Epstein $240,000
Kuehl 240,019
Schlaes 240,000

Codd did not make an estimate.

As indicated above, the City’s evidence bore exclusively on the cost of constructing a building to “replace” a part but not all of the space (square and cubic) occupied by the present buildings. It was variously described as “replacing” the “exhibited space” or “to house all of the exhibits,” etc. It did not purport to include space areas or volume in the present buildings which the City’s witnesses considered were “wasted space” or which were not, in their opinion, being used currently for museum purposes. Here the replacement theory of valuation must recognize the value of unused parts of the premises on some basis. And it would seem that to consider such space as museum storage or workshop space would be the only appropriate basis by analogy to the rule that value must be fixed with a view to the highest and best use to which the property is available, even if it is not being put to such use at the time of taking. Department of Public Works v. Barton, 371 Ill 11, 16, 19 NE2d 935; City of Chicago v. Harbecke, 409 Ill 425, 429, 100 NE2d 616; Department of Public Works & Bldgs. v. Lambert, 411 Ill 183, 189, 103 NE2d 356.

Entirely apart from the question of whether a museum needs room for expansion of exhibit, storage and workshop space, the fact remains that the City proposed no compensation on any basis whatsoever for the substantial portions of defendant’s buildings which it opined were not needed for museum purposes. In other words, it proposed to take some 9,000 square feet and some 235,000 cubic feet of building space without paying anything therefor. In Central Illinois Light Co. v. Nierstheimer, 26 Ill2d 136, 140, 185 NE2d 841, the court decided that opinions expressed by certain valuation witnesses were incompetent and on account thereof reversed the trial court’s compensation award. The court said:

It is settled that where opinions of witnesses in condemnation cases are based in part upon elements of damage which cannot legally be taken into consideration as well as upon elements which could properly be taken into consideration, these opinions do not form a proper basis for a verdict.

A different facet of the same reasoning applies to the case here. It is our opinion that the valuations of the City’s witnesses were based in part upon elements of damage which could properly be taken into consideration, but at the same time they excluded other elements which should also have been considered. Thus, as in Nierstheimer, these opinions could be taken as not forming a proper basis for a verdict.

Simply on the basis of this outline of the City’s evidence — the “replacing” of more with less — it seems to us that the City has failed to meet its burden of introducing competent evidence to prove the value of all of the property to be taken. And without such proof the “just compensation” requirement of the constitution cannot be satisfied.

It might be possible to consider that when a witness, in testifying to the cost of a replacement building, gives his opinion that parts of the old building are not needed for a museum, he is saying in effect that the old building is functionally obsolete to that extent. To the extent that this may have been true it would have resulted in a double depreciation for obsolescence in the instant case, however, because the City’s valuation witnesses also testified expressly to a depreciation factor for obsolescence to be applied to their estimate of construction cost for the proposed “replacement” building.

We have recited a considerable portion of the City’s evidence because we believe it raises an important question concerning competence of valuation witnesses. We are aware of the frequently stated concept that a witness need not be an expert to testify to the value of real estate in eminent domain proceedings; that market value of land is a question of fact like any other, and that it may be proved by any person who has knowledge of real estate values and is acquainted with the property in question. The County of Cook v. Holland, 3 Ill2d 36, 46, 119 NE2d 760; Trustees of Schools v. Schroeder, 23 Ill2d 74, 78, 177 NE2d 178. Further, that lack of experience goes not to the competency of such a witness but only to the weight to be given to his testimony. Illinois Power & Light Corp. v. Talbott, 321 Ill 538, 543, 152 NE 486.

The City contends that these principles are determinative of the problem with which we are confronted in the case at bar. We think not. It is onr view that when the courts have said that a witness need not be an expert they have, nevertheless, gone on to lay down qualifications which he must have if his opinions are to be admissible on the question of value. These prerequisites would seem to us to make of him somewhat of an expert, or one with only limited expertise, perhaps, but we do not intend to become involved with semantics. Our study of the cases as applied to the instant case has convinced ns that there are certain competency qualifications to be met before valuation testimony may be received and that the City’s witnesses did not meet these requirements.

Returning to the authorities relied on by the City, the Holland opinion, at page 46, quotes with approval from Department of Public Works & Bldgs. v. Bohne, 415 Ill 253, 264, 113 NE2d 319, as follows:

... it is established that in condemnation proceedings the value of land is a question of fact to be proved the same as any other fact, and any person acquainted with it may testify as to its value. It is not necessary that a witness be an expert, or be engaged in the business of buying and selling the kind of property under investigation.

Continuing in the Bohne opinion, however, the very next sentence quotes in turn from an earlier opinion:

“Any person may testify in such cases who knows the property and its value for the uses and purposes to which it is being put.” People ex rel. McDonough v. Goldberg, 354 Ill 423, 429; Illinois Power and Light Corp. v. Talbott, 321 Ill 538.

Thus a full statement of the rule shows that a competent witness must not only be familiar with the property, but must also know its value “for the uses and purposes to which it is being put.”

After its quotation from Bohne, the Holland opinion continues:

This is admittedly the law in Illinois, but it cannot be construed to mean that a witness is qualified to state his opinion without some preliminary showing being made as to the matters upon which he bases his opinion. . . . The matter of the qualifications of a witness in a condemnation proceeding was adequately stated in Mauvaisterre Dist. v. Wabash Railway Co., 299 Ill 299, at page 315: “While the question of the competency of witnesses is left largely to the discretion of the trial judge, there is no presumption that a witness is competent to give an opinion, and his competency must be shown. It must appear that he has some peculiar means of forming an intelligent and correct judgment as to the value of the property in question, or the effect upon it of a particular improvement, beyond what is presumed to be possessed by men generally. [Citation.] To entitle a witness to testify to the value of a thing which is of such a nature as to have a current or market value, he must be acquainted with the value of things of the class to which the thing whose value is in question belongs.” Certainly, more must be required of a witness than the categorical statement that he is familiar with the property before he will be permitted to testify as to value, and this is especially so in a case .such as this where an effort is being made to prove that the land is adaptable to a special use.

It would be a mistake to forget that we are dealing here with a most unusual situation, one in which a witness is permitted to state to the jury his opinion of value, when the duty of the jury itself is to determine the appropriate compensation. Surely such a witness must present some kind of credentials to justify his competency to express an opinion under these circumstances. If he knows no more than the jury about the facts in issue, then it would be an improper interference with its function for him to give his views on valuations.

The Supreme Court recognized this necessity of superior knowledge in Trunkline Gas Co. v. O’Bryan, 21 Ill2d 95, 98, 171 NE2d 45:

The question of the market value of real property has been said to be one of fact, not of art or science (Illinois Power and Light Corp. v. Talbott, 321 Ill 538,) and, accordingly, the simple rule to determine the competency of a witness to testify to values in a condemnation proceeding has been that the witness must have some peculiar means of forming an intelligent and correct judgment as to value, or the effect upon it of a particular improvement, beyond what is presumed to be possessed by men generally.

So the conditions to competency as expressed in Mauvaisterre were held to be still authoritative forty years later.

In the O’Bryan case the court then proceeded to break down the questioned testimony into different subject-matters, and found that the witnesses were incompetent to testify on some phases of the matter before the court, but competent as to others. This we believe to be true of the City’s witnesses in the case at bar. Assuming that these witnesses were qualified generally to testify to real estate values in the area, that they were familiar with the property being condemned and with the costs of construction, it would follow that they could then testify to construction cost (and depreciated value) of a replacement building substantially equivalent to the old buildings in size (area and volume) and type of construction. But it would not necessarily follow that they could express an opinion that a smaller building or one of a different construction type would be an adequate “replacement” for the existing museum buildings. To do so would require a knowledge of museums and the exercise of a judgment based on such knowledge. We believe that the testimony set forth above demonstrates that the City’s witnesses repeatedly gave opinions or estimates which were “museum judgments.” Such testimony was, in consequence, incompetent and inadmissible unless the record shows these witnesses to have had a “peculiar means of forming an intelligent and correct judgment” in the museum field “beyond what is presumed to be possessed by men generally.” Trunkline Gas Co. v. O’Bryan, 21 Ill2d 95, 98, 171 NE2d 45. We shall therefore examine the record to see what were the qualifications of these witnesses in regard to museums which could justify communication of their opinions to the jury.

Epstein (an appraiser) testified: “I have never appraised a museum before. ... In my evaluation of this property I considered this property as a museum. I did not compare it with the valuation of any other museums because I have no knowledge of the sale of any other museums. ... I have no experience in designing a museum.”

Schlaes (also an appraiser) said: “I have never appraised a museum. ... I have had experience in building buildings but not museums. ... I have had no experience in the building and management of museums. I am not a museum expert.”

Kuehl (an engineer) testified: “I have never done any work on a museum. ... I have been familiar with that structure (the Harding Museum) for ten or fifteen years.” On cross-examination he said: “My fifteen-year familiarity with this structure is from driving by it. I had not been inside the property in those fifteen years. ... I haven’t designed any museums.”

When it came to Codd, the architect, the City made a modest obeisance to the need to qualify him in regard to museum knowledge. The following was elicited from him on direct examination: “I have made a study of museum construction and museum architecture. I followed the construction of the Museums of Science and Industry, the Natural History Museum and the Shedd Aquarium. I followed the additions to the Art Institute.” On cross-examination, however, he testified: “I was a student in high school when I followed the construction of the various museums. I was a sidewalk superintendent.”

As to this phase of the case we conclude that it was an abuse of discretion to permit the City’s witnesses to give opinions necessarily based on a knowledge of museums when in every instance it affirmatively appeared that such knowledge was lacking. The “experts,” in effect, disavowed expertise. See Panepinto v. Morrison Hotel, Inc., 71 Ill App2d 319, 218 NE2d 880.

On a new trial it is virtually certain that there will he testimony as to depreciation so we shall comment on another matter of arithmetic. The City’s witnesses testified to two kinds of depreciation as applicable to this case: physical and functional. One witness, for example, gave it as his opinion that a physical depreciation factor of 50% should be applied to the present buildings. He also applied a factor of 20% for functional depreciation, more often referred to as obsolescence. Here is where we disagree with his arithmetic because he then added the two percentages and applied a 70% total depreciation to the estimated replacement construction cost. We believe the correct way to apply more than one depreciation factor is to make the computations one at a time. Taking a cost of $240,000 with a 50% physical depreciation the amount would be lowered to $120,000. Then applying 20% obsolescence the figure would be reduced to $96,000 — not $72,000 as was done at the trial. If the two factors had each been 50%, the witness’ method of computation would have reduced the depreciated value to zero — an obvious error under the facts of the hypothesis. (Which is not to say that under different facts a building might not have a value of zero.) The City’s other real estate appraiser used the same arithmetical method (but with different depreciation percentages) and arrived at precisely the same depreciated value.

Also in regard to depreciation, most of the witnesses treated the obsolescence factor as that applicable to museum buildings, which is proper. The City’s engineer, However, in testifying to obsolescence of the converted residence building said: “By obsolescence I mean High ceilings and the number of rooms that you Have in that dwelling. You can’t get anybody to work in these dwellings anymore. People don’t want those because they can’t get the servants.” Without expressing an opinion, we simply point out that the features which might render a residence functionally obsolete could make it more valuable as a museum, or the converse might be true.

Other points have been raised by defendant, particularly in regard to alleged error in the striking of defendant’s evidence relating to reproduction. Under the circumstances, these contentions need not be considered in reaching our decision on this appeal. Nor shall we extend this opinion to express our views thereon because it seems probable that the testimony on both sides in a retrial would be quite different in character.

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

Reversed and remanded.

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

Supplemental Opinion On Rehearing.

The City’s argument on rehearing rests heavily on the proposition that our opinion required replacement of the buildings taken with a “special purpose” museum building rather than a building appropriate to the “special use” of a museum. We think not. In fact, we consider that the City’s contention would have us ignore completely the factor of suitability for museum use simply because the old buildings were not “special purpose” structures. If a replacement building were not to be capable of accommodating the special use to which the old buildings had been put, then the entire basis of evaluation agreed upon in the trial court would be improper. The fair market value would be the standard in that situation.

The City also contends that its witnesses were competent to testify in regard to a replacement building suitable for the special use of a museum because of their experience in designing, building or appraising other types of special use buildings. We are not convinced. Knowledge of special purpose or special use structures housing theaters, garages, stores, etc., does not qualify a witness to give his opinion concerning a building to house a museum.

With minor modifications (which have been made) we adhere to our original opinion reversing the judgment and remanding the cause for a new trial.

Reversed and remanded.

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

       Not to be confused with “special purpose” buildings. The latter are designed for a particular or special use, whereas “special use” buildings are not so designed originally, but at the time in question are being put to a “special use.” In the instant case, two of the four structures had been originally designed for museum purposes, but were not properly so designed, according to plaintiff. All four buildings were treated by the trial court, without objection by either party, as falling in the “special use” category.

       The dispute here is not over the value of the land but only that of the buildings.

       The City’s brief contains the statement: “It was established beyond a doubt that the total square footage was between 26,700 and 27,500 square feet.”

       There were ten or more of the full-scale horse and rider exhibits. Could they be accommodated, with room for the viewing public to walk around them at an appropriate viewing distance, in a space of 700 square feet (a square of approximately 26% feet on a side) ? When Codd testified to the 700 square feet, he was apparently attempting to minimize the extent to which the high ceiling of his “Great Hall” would cut down the floor space of the second floor. On his drawings the size is indicated as approximately 34' square, or 1,156 square feet. While this is substantially more than 700 it may still be questioned, in the absence of explanation, how this space could properly display ten or more mounted rider exhibits.

       He said that the Metropolitan has the only collection comparable to the Harding armor bnt that the latter was more complete.

       Cannon on a Norman castle?

       Some serious confuson may well have existed on this point. For example, witness Epstein testified that he applied a 20% functional obsolescence factor to his estimated cost of a “replacement” building which would have 20,000 square feet, or “slightly more than is being used now for the function of the present museum.” He also testified: “The basement and attic were not used for the public and I think they are functionally obsolete. Climbing up almost four flights of stairs is certainly ridiculous, in my opinion, for a museum.”

       The court agreed with the trial court that the witnesses, who were farmers in the area, were incompetent to express opinions upon the effect a pipe line would have on drainage or upon the dangers of leakage, but (contrary to tbe trial court) found that they were competent to testify as to the manner in which the excavated area would cause farming inconveniences affecting value.

       He made no attempt to distinguish between the depreciation factor applicable to the 75-year-old converted residence, and that applicable to the castle-like structure which was built in 1927.

       Curiously, he made allowance for the difference in age of the buildings but none for the difference in their size.

       We do not mean to indicate that some of these points were not well taken. For example, after all proofs were closed the City’s attorney moved to strike the testimony of defendant’s witness Olson. Despite the fact that no appropriate objection had been made when Olson’s testimony was being put in, the motion was allowed. This was error (General Motors Acceptance Corp. v. Elder, 24 Ill App2d 55, 62, 163 NE2d 721; Western Union Telegraph Co. v. Hope, 11 Ill App 289, 292; Reule v. City of Chicago, 268 Ill App 266, 273) of more than ordinary importance, coming as it did when the ease was about to go to the jury and defendant was no longer in a position to rehabilitate its ease through the same or other witnesses.


text:
    Mary Agnes Gleason, Plaintiff-Appellant, v. Anthony & Sophie Brazauskas, d/b/a Tony’s Tavern, Defendants-Appellees.
    Gen. No. 50,904.
    First District, Fourth Division.
    May 6, 1966.
    Milroy R. Blowitz, of Chicago (Leon C. Wexler, of counsel), for appellant.
    Rago, Kiely & Kages, of Chicago (C. Gus Kages, of counsel), for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a denial of her petition to reinstate the case after a dismissal for want of prosecution.

It appears from the record that this case (Superior Court No. 56 S 6871) went to trial on October 16, 1962; that on October 23, 1962, a mistrial was ordered; that on December 5, 1962, the case was placed on the passed case calendar; that on September 25, 1964, a call was made “of the former Superior Court Dormant Calendar law cases” and on that date the case was placed on the regular trial call and dismissed for want of prosecution. On August 31, 1965, plaintiff filed a petition under Section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72) alleging that the mistrial was caused by a severe injury to plaintiff during the pendency of the trial; that the case was placed on the passed case calendar because it was uncertain when she could appear for trial; that the attorney had not received a notice that the case had been dismissed for want of prosecution; that both plaintiff and defendant believed the case was still pending and that plaintiff had received from defendants a motion for substitution of attorneys for presentation to the court on August 16, 1965; that in making his periodic review of his cases he found the dismissal order; that he immediately filed his petition to reinstate; and that he had a meritorious claim. Although no answer was filed to the petition and no one appeared before the judge on behalf of the defendants, the petition was denied and this appeal followed.

In the hearing on the petition, plaintiff’s attorney stated that he had received a call from opposing counsel and that they would not contest the petition. He further said that he had no knowledge of the dismissal order and that he had not received any postcard or other notice from the court concerning the dismissal. These assertions were not and are not denied.

Defendants argue that even though they did not contest the petition in the trial court, they may now urge that the petition did not contain the necessary elements to show diligence. Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 188 NE2d 59. However, taking the allegations of the petition as true, there was a sufficient showing of diligence.

A proceeding under Section 72 “invokes the equitable powers of the court as justice and fairness require. . . .” Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 190 NE2d 348. Plaintiff’s attorney urges that the seventy-year-old plaintiff should not be forced to file a new suit under section 24 of the Limitations Act (Ill Rev Stats, 1963, c 83, § 24a) since “as conditions exist today she will certainly never live to see a trial held five or six years from now based upon the current backlog” and therefore should in equity and justice be given a trial in her case filed in 1956.

Under the circumstances of the instant case, we find that the refusal to reinstate was an abuse of discretion.

The order denying the petition to reinstate is reversed and the cause remanded with directions to sustain the petition, vacate the order of dismissal and set the case for trial.

Reversed and remanded with directions.

ENGLISH AND McCORMICK, JJ., concur.

       Although the court records might have disclosed that the clerk did send a card, no evidence was adduced to show this fact. The judge indicated that a postcard was always sent and that he “never heard of more than one or two lawyers who came in and said they didn’t get it.”


author: MR. JUSTICE DEMPSEY

text:
    Stella Werbeck, Plaintiff-Appellee, v. John Werbeck, Defendant-Appellant.
    Gen. No. 50,727.
    First District, Third Division.
    May 5, 1966.
    Rehearing denied June 9, 1966.
    Horace N. Lund, of Chicago, for appellant.

      No brief filed for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant appeals from two orders entered by the trial court. The first denied his petition to terminate alimony and the second ordered him to pay additional attorney’s fees. He complains that the court unreasonably restricted his presentation of evidence and arbitrarily awarded alimony and fixed the plaintiff’s attorney’s fees without a full disclosure of the parties’ incomes and needs.

The plaintiff has not met these contentions; no answering brief has been filed by her in this court. Under this posture of the case we would be justified, without further exploration of the merits, in reversing the orders of the trial court. Ogradney v. Richard J. Daley, Mayor, as Local Liquor Control Commissioner, 60 Ill App2d 82, 208 NE2d 323 (1965); 541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964).

However, in a situation such as this we may, in our discretion, examine the record to see if an appellant is entitled to the reversal prayed for, or if an injustice would be done an appellee by granting the reversal.

Upon examining the record we find that the first order appealed from was entered on August 31, 1964, and the second on December 8, 1964. The notice of appeal from both orders was filed on January 20, 1965. The notice was filed in apt time for the order of December 8th but was filed almost five months after the order of August 31st. This was well beyond the time fixed by statute for perfecting an appeal. Ill Rev Stats, c 110, par 76 (1963). Compliance with the statutory requirement is jurisdictional. Freeport Motor Cas. Co. v. Tharp, 406 Ill 295, 94 NE2d 139 (1950); Walton v. Winter & Hirsch, Inc., 18 Ill App2d 540, 152 NE2d 602 (1958). We, therefore, have no jurisdiction to entertain the appeal from this order.

There is no transcript of the proceedings which took place on December 8, 1964, when the court ordered the defendant to pay $330 attorney’s fees. The order states that the court heard testimony before making its finding. In the absence of the report of this testimony there is a presumption that the testimony justified the order. Jones v. Jones, 48 Ill App2d 232, 198 NE2d 195 (1964); Smith v. Smith, 36 Ill App2d 55, 183 NE2d 559 (1962). The order of December 8th must, therefore, be affirmed.

The appeal from the order of August 31, 1964, must be dismissed. The order of December 8, 1964, is affirmed.

Dismissed in part and affirmed in part.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Bradley, Defendant-Appellant.
    Gen. No. 49,847.
    First District, First Division.
    May 9, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Norman W. Fishman, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Klein and Robert J. Wojcik, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Defendant was convicted of burglary and in a bench trial was sentenced to a term of not less than four nor more than eight years in the Illinois State Penitentiary. In this appeal, he contends: 1) that the evidence was not sufficient to prove him guilty beyond a reasonable doubt; 2) that the comments made by the trial court in announcing his finding of guilty indicated that the court had applied an improper standard in passing upon the defendant’s guilt or innocence; and 3) that the indictment, which by reason of a typographical error misstated the year of the offense, and which was amended during the trial, failed to meet statutory requirements.

On February 4, 1964, Mildred Johnson’s third floor apartment in Chicago was burglarized, and a television set was taken. The following morning her sister, Beatrice Johnson, who also lived in the apartment, and who did not testify at the trial, called the police to report the burglary, and then inquired of neighbors whether they had seen anyone with a television set. Herman Patterson, who lived on the first floor, and who did not at that time know either the Johnsons or the defendant, told Beatrice Johnson (and later testified) that at 2:30 p. m. the previous day, he had seen two men go up the back steps of the building and come down the front steps minutes later carrying a television set. Patterson described the two men to Beatrice Johnson, who noted that the description of one of the men fit that of the defendant. Mildred Johnson testified that the defendant had previously been in her home four or five times as the guest of her son and nephew; that on one occasion he had tried to fix her back door which was broken and would not lock properly; and that in the past the defendant had admired the television set and had commented that it had a nice picture. Beatrice Johnson called the police on February 6th to report the conversation with Mr. Patterson, and to give them the defendant’s name and description. The same day, the police obtained two photographs, at least one of which was of the defendant, and presented them to Mr. Patterson, who identified the defendant as one of the men he had seen two days earlier. On February 8th, the defendant, when he heard he was wanted by the police, telephoned the Johnsons, and then came over to their apartment with his wife and mother to discuss the matter. Mildred Johnson had meanwhile alerted the police, who arrested the defendant at the Johnsons’ home. Later that day, Mr. Patterson went to the police station and identified the defendant as one of the men he had seen; and he did so again at the trial. The television set was never recovered.

The defendant testified that he had been to the John-sons’ apartment many times, and had always used the back stairway and entrance. He stated that he had been in the Johnsons’ apartment on the afternoon of the burglary, arriving alone about 2:00 p. m. In the apartment he met Mildred Johnson’s son, her nephew, and another man, and after having a few drinks the four men left the apartment together via the back stairway. Defendant testified that they left the Johnson apartment at 2:15 or 2:20 p. m., but that it could have been 2:30 p. m., and that he and two of the other men (none of whom testified) then proceeded to the home of the defendant’s mother; that they stopped along the way to talk to a neighbor, Miss Era Gibson, and that he arrived at his mother’s home at about 3:00 p. m. Defendant’s mother testified that her son arrived at her home at about 2:40 or 2:45, and that about 3:10 or 3:15 she sent him to the home of Miss Gibson to pick up a package. Era Gibson testified that the defendant picked up a package at her home at about 3:15, and that she did not see the defendant at any other time that day.

Defendant concedes that the testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Solomon, 24 Ill2d 586, 182 NE2d 736. But to sustain his argument that he was not proved guilty beyond a reasonable doubt, defendant urges that the identification of him by Herman Patterson, which forms the basis for his conviction, is not “positive” within the requirements of the law. He directs our attention to the fact that there was no “line-up” used in this case for the identification of the defendant; and that the police exhibited only two photographs to Mr. Patterson, both of which might have been of the defendant.

In People v. Washington, 26 Ill2d 207, 186 NE2d 259, our Supreme Court held:

The remaining contention that defendant was neither “properly” nor “sufficiently” identified is also without merit. In the first regard, the fact that an accused is not placed among a group of persons in being presented to a witness for identification does not fatally weaken the evidence of identification, but bears only upon the weight to be accorded that evidence. [Citing cases.] As to the latter premise, positive identification by one witness who had ample and favorable opportunity to observe is sufficient to convict even though the testimony is contradicted by the accused. [Citing cases.] (26 Ill2d at 209, 210.)

The record shows that Mr. Patterson had ample opportunity, during the daytime, to observe the defendant’s face and profile on two different occasions only minutes apart, and after describing him to the complainant’s sister he was shown a photograph of a man whom he identified as one of the men who carried the television set out of the complainant’s apartment. We conclude that this formed the basis for a positive identification by Mr. Patterson, which the trial court chose to believe despite the fact that it was contradicted by the testimony of the defendant. Where a cause is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and unless it can be said the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. People v. West, 15 Ill2d 171, 176, 154 NE2d 286. Under the circumstances of this record, we find no basis for substituting our judgment for that of the trial judge, and conclude that the defendant was proved guilty beyond a reasonable doubt.

Defendant’s second contention is that the trial judge applied an improper standard in passing upon his guilt or innocence. Our attention is directed to the following portion of the comments made by the trial judge in announcing his finding of guilty:

The Court doesn’t conjecture his guilt by reason of that but having elected to make an explanation to the court to protest his innocence he should come forward with enough evidence to create a reasonable doubt in the mind of the Court.

Defendant claims these comments indicate that the burden of proof had shifted from the State to the defendant, in violation of the well-established rule that throughout the trial the burden of proving the guilt of the defendant beyond a reasonable doubt is on the State, and the law does not require the defendant to prove his innocence. There is no question that the defendant correctly states the Illinois law as to the burden of proof in criminal cases. People v. Long, 407 Ill 210, 95 NE2d 461; People v. Caylor, 386 Ill 501, 54 NE2d 514. But we cannot accept his contention that the comments of the trial judge indicated that a different rule had been applied. When the statement of the court, as described above, is read in the context of all his comments, it is clear that the court was explaining his reasons for resolving the conflicting testimony against the defendant. He first pointed out that he was impressed by the testimony of Mr. Patterson and of Mildred Johnson, and discussed special factors which contributed to the credibility of their testimony. He then discussed the defendant’s testimony, and pointed out his reasons for questioning that testimony. The comments to which the defendant takes exception then followed. We conclude that these comments merely indicate that the defendant’s testimony was not sufficiently credible to the trial judge to overcome the testimony to the contrary adduced on behalf of the State. The judge therefore did not apply an erroneous standard in passing upon the guilt or innocence of the defendant.

The final contention made by the defendant is that the indictment was fatally defective because it alleged that the offense was committed on February 4, 1963, whereas the State’s case related to an offense committed on February 4, 1964. This discrepancy was first noticed by the trial judge during the course of the trial, and he called it to the attention of the respective attorneys. The State was then permitted, on motion, and over the objection of the defendant, to amend the indictment, on the authority of § 111-5 of the Code of Criminal Procedure (Ill Rev Stats, c 38, § 111-5 (1963)). The relevant portion of that statutory provision permits the amendment of an indictment upon motion, “. . . at any time because of formal defects, including: (a) Any miswriting, misspelling or grammatical error; . . .” (Ill Rev Stats, c 38, § 111-5 (a) (1963)).

The record indicates that questions put to the witnesses by both attorneys referred to the correct year, and defendant has not argued, either here or in the trial court, that the error in the indictment prejudiced him in any way in the preparation of his defense.

The amendment of purely formal defects in an indictment without the return of that indictment to the grand jury is consistent with the general purposes of the Code of Criminal Procedure, as stated in § 101-1 of that Code (Ill Rev Stats, c 38, § 101-1 (1963)). Subsection 101-1(b) sets forth one such purpose as to; “Ensure fairness of administration including the elimination of unjustifiable delay; . . .”

The trial judge concluded, and we agree, that the typographical error in writing the date of the offense, which did not in any way prejudice the defendant in the preparation of his defense, could properly be amended on motion under § 111-5 (Ill Rev Stats, c 38, § 111-5 (1963)).

The judgment of the trial court must therefore be affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fleming Smith, Defendant-Appellant.
    Gen. No. 50,159.
    First District, First Division.
    May 9, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant was convicted in a bench trial of the unlawful sale of narcotic drugs, and was sentenced to a term in the Illinois State Penitentiary of not less than ten years nor more than eleven years. In this appeal, he does not challenge the sufficiency of the evidence to support his conviction, but contends: 1) that the State was obliged to reveal the true name of an informer who testified at the trial; 2) that defendant was entrapped into committing the offense; and 3) that the indictment failed to meet statutory standards because it failed to specify the place of the offense.

The sale of narcotics for which the defendant was convicted was made on February 28, 1964, to a narcotics addict and paid police informer who, at the trial, identified himself by the admittedly false name of James Jordan. On that day Jordan went to a district police station in Chicago where he met police officers Strom and House. The three men proceeded to a location on 43rd Street near the “L” tracks, where Jordan pointed out the defendant. They then returned to the police station, where Jordan was thoroughly searched and then given six one-dollar bills and four quarters in marked currency and coin. Upon their return to the place where Jordan had pointed out the defendant, Jordan entered a restaurant near the “L” tracks; Officer House, a few feet from the restaurant, watched through the window, while Officer Strom watched from across the street. House testified that he saw Jordan and the defendant conversing, but that the defendant turned his back and House could not see more. Jordan testified that when he was in the restaurant he told the defendant he would like to buy “half a sixteenth” from him, but defendant told him he only had a $5 bag, which he agreed to sell for $4.75. Jordan gave him four one-dollar bills and three quarters, whereupon the defendant opened the fly of his pants and gave the defendant the tinfoil package which later was found to contain heroin. Jordan then left the restaurant, gave a prearranged signal indicating that he had made the purchase, and turned over to Officer Strom the package and $2.25. Officer House, meanwhile, entered the restaurant, sat at the counter near the defendant, and ordered a cup of coffee. Officer Strom field-tested the powder in the package, and then he and Officer House arrested the defendant. A search of his person produced, among other things, another bag of narcotics, which was recovered from the fly of his pants, and four of the recorded one-dollar bills. None of the marked quarters was recovered.

The defendant testified that he had known James Jordan casually for a few years, that he had known Jordan was an addict, and that he had been an addict himself. He further testified that on the day in question Jordan asked him if he knew where Jordan might get some narcotics; and that he answered that he only had one $5 bag, which was for his own use, but that Jordan might get some from another man whom defendant pointed out in the restaurant. Defendant claimed that Jordan then contacted the other man, and indicated upon his return that, “Everything was mellow,” which meant that he had succeeded in making a purchase. Defendant contended that he might have received the four marked bills in change when he paid for a cup of coffee with a five-dollar bill.

The informer Jordan, on cross-examination, testified over the State’s objection that Jordan was not his correct name; but when defense counsel then asked for his correct name, the State’s objection on behalf of the informer’s safety was sustained. Defendant now contends that this failure to disclose the informer’s true name is grounds for dismissal, where the informer was an active participant in the crime, citing Roviaro v. United States, 353 US 53. But we conclude that Roviaro differs materially on the facts from this case, and therefore does not apply. In that case, the court found that the government, by refusing to disclose the identity of an informer who took an active part in the crime but who did not appear as a witness at the trial, prevented the defendant from gaining access to one whose testimony could possibly have been vital to the defense. It was not alleged in that case that the defendant had means of identifying the informer other than the requested disclosure of his true name. The United States Supreme Court, in discussing the so-called “informer’s privilege,” observed,

The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. (353 US at 59.)

The court went on to state, (353 US at 62):

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend upon the particular circumstances of each case, taking into consideration the crime charged, the possible significance of the informer’s testimony, and other relevant factors.

The Court concluded that since the government’s refusal to disclose the informer’s identity in that case rendered his potentially vital testimony inaccessible to the defendant, the nondisclosure constituted reversible error.

But in the case at bar, the informer appeared as a witness, and was therefore subject to cross-examination by the defendant. This fundamental difference distinguishes the two cases. But furthermore, there are indications in the record that the defendant did not need disclosure of the informer’s true name to determine his identity. Defendant testified that he had known the informer “. . . a few years or so, casually,” prior to the day of the sale. Defendant’s counsel asked the informer whether he was known “in the streets” by a specified nickname, but upon the State’s objection he was not permitted to answer. Later in the trial, in another context, defendant’s counsel volunteered the comment, in reference to the informer, “I represented him before, I know him.”

Even assuming arguendo that defendant could not otherwise discover the informer’s identity, we discern no disadvantage whatever which could have resulted to him on that account. Defendant contends that if he had been supplied the informer’s true name, he could have determined whether the informer had given inconsistent testimony in the trial of another man who was convicted for selling narcotics in that restaurant on that day. But there is no indication that, even if there were such a case and even if the informer did testify therein, the informer used his correct name in that case any more than in the case at bar. We conclude that the defendant was not prejudiced by the failure of the State to disclose to him the true name of an informer who had been produced as a witness, and whose identity was either known to the defendant or otherwise ascertainable by him.

Defendant next contends that he was unlawfully entrapped by a paid police informer into the commission of the offense, and therefore is entitled to his dismissal. This defense was not urged in the trial court, and therefore cannot be raised for the first time on appeal. People v. Redding, 28 Ill2d 305, 308, 192 NE2d 341; People v. Outten, 13 Ill2d 21, 24, 25, 147 NE2d 284. Defendant urges that while the defense of entrapment was not specifically pleaded or relied upon in the trial court, it was clearly suggested, and that this is sufficient under People v. Strong, 21 Ill2d 320, 172 NE2d 765. But here, there was no mention of entrapment at the trial; in fact, defendant’s line of defense was a denial that he had sold the narcotics to the informer at all. Such a position is diametrically opposed to a defense of entrapment, and we feel negates the contention that entrapment was “clearly suggested” in the trial court. People v. Outten, 13 Ill2d 21, 147 NE2d 284. Furthermore, even if that defense could be raised at this point by the defendant, the facts of this case do not disclose the inducement on the part of the police which is required to sustain an entrapment defense. People v. Gray, 27 Ill2d 527, 190 NE2d 368, cert denied, 375 US 864. In support of his claim that he was unlawfully entrapped, defendant cites People v. Strong, 21 Ill2d 320, 172 NE 2d 765. But in Strong, the narcotics which the defendant had been convicted of selling had been supplied to him for that purpose by the State. The case is clearly distinguishable on those grounds.

Finally, defendant contends that the indictment, in failing to name the place of the offense as definitely as could be done, failed to satisfy the requirements of subsection 111-3 (a) (4) of the Code of Criminal Procedure (Ill Rev Stats, c 38, § 111-3 (a) (4), 1963). He also cites People v. Williams, 30 Ill2d 125, 196 NE2d 483, in support of this contention. The indictment alleged that the offense was committed on February 28, 1964, at and within Cook County, and therefore satisfied that statutory requirement as interpreted in the later cases of People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, and People v. Reed, 33 Ill2d 535, 213 NE2d 278, decided by our Supreme Court subsequent to the filing of the original briefs in this case. The indictment was therefore valid.

For the foregoing reasons, the conviction must be affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    Robert Chambers, Plaintiff-Appellant, v. General Electric Company, a Corporation, Defendant, and Abell-Howe Company, a Corporation, Defendant-Appellee.
    Gen. No. 50,318.
    First District, First Division.
    May 9, 1966.

      James A. Dooley, of Chicago, for appellant.
    Vogel & Vogel, of Chicago (David F. Holland, of counsel) , for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff brought suit in January of 1956, for personal injuries suffered in October of 1954, in the course of his employment as a glazer in the construction of a building. He originally sought recovery solely from the owner of the premises, the General Electric Corporation, alleging that the injuries resulted from a violation of the Structural Work Act, more commonly known as the Scaffolding Act. In February of 1968, he moved for and was granted leave to amend his complaint, naming as an additional defendant the general contractor, the Abell-Howe Corporation. Abell-Howe appeared, and moved to dismiss the action as against it on the grounds that it had not been made a party defendant within the period specified by the applicable statute of limitations. The motion to dismiss was granted, the order stating that there was no just reason for delaying enforcement or appeal, and this appeal followed.

In explanation of the fact that he did not make AbellHowe a party defendant until more than eight years after the accident, where the applicable statute of limitations provides for only two years within which to bring suit (Ill Rev Stats, c 83, § 15, 1963), plaintiff alleges that this was necessitated by the 1961 opinion of our Supreme Court in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785. He argues that whereas before Gannon the owner of the premises was absolutely liable for injuries resulting from Scaffolding Act violations, the import of Gannon was to impose liability upon the owner only where he was in charge of the construction. It is plaintiff’s position that the addition of Abell-Howe as a party defendant should be allowed because this change in the judicial construction of the Scaffolding Act should not be permitted to work a forfeiture of plaintiff’s cause of action.

Amendments of the pleadings are governed by section 46 of the Civil Practice Act and at the time of the amendment of the complaint in this case, subsection 4 of that section provided:

(4) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (a) the time prescribed or limited had not expired when the original action was commenced; (b) failure to join the person as a defendant was inadvertent; (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; and (e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended. (Ill Rev Stats, c 110, § 46 (4), 1961).

To sustain the inclusion of Abell-Howe as a defendant subsequent to the expiration of the period of limitations, plaintiff must show that this amendment meets all of the conditions set forth in this statutory language. The trial court specifically held that plaintiff had not satisfied the requirement of part (c) of subsection 4; or more specifically, that service of summons was not had upon Abell-Howe or any of its agents prior to the expiration of the period of limitations. No claim is made that service was actually made upon Abell-Howe during that period. Plaintiff does contend, however, that by virtue of Abell-Howe’s agreement in its contract with General Electric to save G. E. harmless against any liability arising from injuries resulting from the construction job, and by virtue of the fact that G. E. and Abell-Howe had a common insurer, G. E. must be deemed the agent of Abell-Howe for service of process. We do not agree. General Electric and Abell-Howe are entirely independent and unrelated entities for all other purposes. We do not feel that Abell-Howe’s promise to hold General Electric harmless, or the fact that the two companies had a common insurer, renders one the agent of the other for service of process within the meaning of subsection 46 (4) (c). Such a strained construction would undermine the statute of limitations, which the conditions specified in subsection 46(4) were intended to safeguard. Silver v. Lee Shell Equipment Corp., 31 Ill App2d 266, 270, 175 NE2d 287.

Plaintiff also cites subsection 54(1) of the Civil Practice Act (Ill Rev Stats, c 110, § 54(1), 1961) in support of his attempt to add Abell-Howe as a defendant after the running of the period of limitations. That subsection provides:

(1) Change of interest or liability. If by reason of marriage, bankruptcy, assignment, or any other event occurring after the commencement of a cause or proceeding, either before or after judgment, causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after commencement of the action, it becomes necessary or desirable that any person not already a party be before the court, or that any person already a party be made party in another capacity, the action does not abate, but on motion an order may be entered that the proper parties be substituted or added, and that the cause or proceeding be carried on with the remaining parties and new parties, with or without a change in the title of the cause. (Ill Rev Stats, c 110, §54(1), 1961).

Plaintiff argues that the alleged change in the law effected by the Gannon decision by the Supreme Court was an event causing a change in liability within the meaning of that section, and therefore the addition of Abell-Howe as a defendant should be allowed. Again, we do not agree. This section is concerned with changes in the existence and legal status of the parties themselves, and with transfers between parties of interest in the cause of action, but not with changes in the legal rules governing the case. It was not intended to provide a basis for the tardy inclusion as a defendant of a party whose existence and legal status remained unchanged and was known to the plaintiff at the time the original suit was filed.

In support of his contentions plaintiff cites Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63, and Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill2d 273, 122 NE2d 540. We find neither case persuasive because each is substantially different on its facts. In Lau, the personal injury action was filed against the reorganization trustee of Chicago and West Towns Railways, Inc. After the period of limitations had passed, the receivership was dissolved and the assets delivered to the reorganized Chicago and West Towns Railways, Inc., which changed its name to the West Towns Bus Company. Plaintiff was permitted to bring in West Towns Bus Company as a party defendant over the objection that the period of limitations had run. On appeal, the Supreme Court stated that subsection 54(1) authorized the substitution of the new company for the reorganization trustee. Lau thus was a case involving a change in the defendant’s identity, not an attempt, as here, to join as a defendant an entirely independent party which had existed at the time the original suit was filed.

In Geneva, the Supreme Court upheld the order allowing a party to intervene as a plaintiff in a personal injury action after the period of limitations had expired, where all of that party’s allegations were essential to the relief sought by the plaintiff in the original complaint, and investigation of all of them was essential to a proper defense. The court concluded that the defendant could not be prejudiced by the amendment, and stated: “Statutes of limitation, like other statutes, must be construed in the light of their objectives. The basic policy of such statutes is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible. That purpose has been fully served here.” (4 Ill2d at 289, 290).

In contrast, the party sought to be added in the case at bar is a defendant who had not previously been sued at all, and who therefore had not been required to investigate the facts in the preparation of a defense. The holding in Geneva is thus inapplicable.

Plaintiff has raised other points and cited other cases, but after a careful examination we have concluded that they are without merit. We agree with the trial court that the amendment of the complaint did not comply with the requisites set forth in subsection 46(4) of the Civil Practice Act, and that therefore Abell-Howe’s motion to dismiss should be granted. The judgment of the Circuit Court of Cook County is therefore affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.