text:
    People of the State of Illinois, Plaintiff-Appellee, v. John A. Svizzero, Defendant-Appellant.
    Gen. No. 50,707.
    First District, Third Division.
    June 8, 1967.

      Victor F. Ciardelli and Gerald Petacque, of Chicago (James R. Thompson, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

A jury found the appellant, John Svizzero, guilty of burglary and he was sentenced to the penitentiary for a term of ten to twenty years.

Svizzero and four other men, who were indicted with him, were apprehended in a building located at 36 South Peoria Street, Chicago. The building was the headquarters for various unions and its custodian, John Waterford, resided with his wife on the fourth floor. Around 4 a. m. on October 17, 1963, the Waterfords heard noises in the building. Waterford investigated, then returned to his apartment and called the police. Policemen converged on the building and Waterford went down the fire escape to let them in.

While waiting to be admitted into the building, the policemen observed flashlights shining on the second floor. On that floor, in the office of the Roofers’ Union, they found Svizzero and two other men, John Johnson and Bruno Dispenza. Another man, Ernest Pucillo, was discovered in the same office under a desk. The fifth man, Eugene Yocca, was hiding in a compartment under the roof.

The office of the Cement Masons’ Union also had been broken into and it was for this burglary that the five men were indicted. Three safes in this office had been opened and $1,300 was missing. The $70 petty cash fund was gone.

The defendant contends that the trial court erred: (1) in refusing to allow him access to a pretrial statement of one of the State’s witnesses, (2) in admitting into evidence the statement he made to the police and (3) in permitting the State to impeach a defense witness.

In oral argument before us the defendant waived his first contention. Although he maintained that the trial court erred in ruling that the statement was not discoverable, he conceded that the error was harmless.

His second contention, based on the failure of the police to warn him of his right to remain silent and to inform him of his right to counsel, was neither waived nor argued. Although he conceded that the case law in Illinois is contrary to his contention, he preserved the point. This makes it necessary for us to pass upon it. The rules implementing the right to maintain silence under accusation and to the assistance of counsel announced in Miranda v. Arizona, 384 US 436 (1966), need not be applied to trials commencing before June 13, 1966, Johnson v. New Jersey, 384 US 719 (1966); and in Illinois it has been held that they will not be, People v. Williams, 36 Ill2d 194, 222 NE2d 321 (1966); People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). The defendant’s trial took place in 1964. Since the record does not indicate that he requested counsel while detained in police headquarters and he does not contend that his statements were not voluntary, the admission of the statements in evidence was not error. People v. Latimer, 35 Ill2d 178, 220 NE2d 314 (1966).

Svizzero’s third point pertains to the impeachment of Pucillo who pleaded guilty and testified for the defense. Svizzero, when questioned by the police, had said that the burglary was not his operation and that he needed money for a bondsman and for attorney fees. He did not testify, however, at the trial; his defense was included in that of his codefendants, Johnson and Yocca.

Johnson testified that he, Svizzero and Yocca were painting a house in Canton, Ohio, from October 14th through the 16th; that they arrived in Chicago early on the morning of the 17th; that on their way home he telephoned his wife who told him Pucillo, from whom he had borrowed the auto he was driving, wanted him to come to 36 South Peoria Street where Pucillo was gambling; that they went to that address and were met by Pucillo who opened the door, told them to park the car and come upstairs; that when they reached the second floor Dispenza came running by yelling to Pucillo that the police were coming, and that shortly thereafter they were placed under arrest. He denied breaking into the building or knowing of the burglary prior to his arrest. Yocca testified similarly. Mrs. Johnson also corroborated her husband.

Pucillo, who had entered a plea of guilty just before the trial started, testified that he, Bruno Dispenza (who pled guilty three months before the trial) and two other men, whom the police did not capture, broke into the building and the Cement Masons’ office. He said he had loaned his automobile to Johnson and that on the night of the burglary he told Johnson’s wife that he needed his car badly and to tell her husband to bring it to him regardless of what time he came in. He said he had not discussed the burglary with Svizzero, Johnson or Yocca, that they were not present when he and his confederates entered the building, that he was acting as the lookout and he let them in.

Upon cross-examination the prosecutor attempted to impeach Pucillo on the basis that his testimony was inconsistent with what had taken place at the time he pleaded guilty. The record shows that before Pucillo’s plea was accepted his attorney, the attorney for Svizzero and the prosecutors conferred with the trial judge in his chambers. Pucillo was brought in and the following took place:

The Court: “. . . Mr. State’s Attorney, advise me of what the facts are in the case.
Assistant State’s Attorney: “. . . [T]he defendant, while in the company of Bruno Dispenza, John Johnson, John Svizzero and Eugene Yocca, entered into the various union halls located at 36 South Peoria . . . and that upon entering the premises they entered with intent to commit burglary therein, and took certain property, and were apprehended on the premises after entering these offices with the intent to commit theft.
“And on the burglary case would you stipulate the facts in the case would sufficiently sustain the indictment on the burglary?
Pucillo’s attorney: “So stipulated.”

Over Svizzero’s objections and motions for a mistrial the prosecutor was permitted to ask Pucillo whether he remembered the statements made in the judge’s chambers. He replied that he recalled the prosecutor’s speaking but did not remember what was said. The prosecutor then asked him these questions and received these answers:

“Q. . . . [T] hat was on the day this jury trial was to begin is that correct?
“A. Yes.
“Q. You knew on that date that these three defendants were going to trial, is that right ?
“A. Yes.
“Q. At that time, or at any time, did you volunteer or tell the Judge these men had nothing to do with it?
“Did you tell the Judge or tell me?
“A. No, I didn’t.”

It is the defendant’s position that neither the stipulation nor Pucillo’s conduct at the hearing afforded a ground for impeachment. The State responds that the impeachment was proper because Pucillo stipulated that Svizzero was one of the burglars and that by not denying the assertion of Svizzero’s participation he impliedly admitted it.

The purpose of the hearing was to allow Pucillo to change his plea to the indictment, and his attorney was authorized to acknowlege his participation in the crime. There is no basis for inferring that his attorney possessed authority to stipulate Pucillo’s belief in the guilt of his codefendants and his attorney did not do so; he merely agreed that the facts asserted by the prosecutor would sustain the indictment against Pucillo, nothing more. Consequently, the stipulation cannot be given the expansive reading the State urges. Furthermore, it could not be maintained that either Pucillo or his attorney had the right to stipulate to Svizzero’s guilt. Svizzero could not be bound by what either said outside of his presence.

Pucillo’s failure to assert Svizzero’s innocence was not a tacit admission that he believed him guilty. The theory of the tacit admission rule is that a person will naturally deny untrue assertions made in his presence and against his interests. IV Wigmore, Evidence, § 1071, p 70 (3rd ed 1940); cf. People v. Homer, 8 Ill 2d 268, 133 NE2d 284 (1956); People v. Smith, 25 Ill 2d 219, 184 NE2d 841 (1962), and People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966). Because Pucillo had determined to plead guilty, his own interests and rights were not affected by the prosecutor’s charging Svizzero with complicity. Pucillo testified that he had been told by his attorney that all he had to do when he went into the judge’s chambers was to plead guilty to the charge. There was nothing more for him to do. He answered “yes” to the questions the court addressed to him about whether he wanted to change his plea from not guilty to guilty, about knowing that he could have had a jury trial and whether he understood the consequences of his plea. He was not asked by court or counsel about Svizzero’s participation in the crime. He was under no obligation to interrupt the prosecutor, and had no motive personal to himself to contradict the charges being made against someone other than himself. His silence cannot be considered an implied assent. Therefore, the hearsay statements made in the judge’s chambers, the recounting of what took place there and Pucillo’s silence were inadmissible. Cf. People v. Bennett, 3 Ill2d 357, 121 NE2d 595 (1954) and People v. Pulaski, 15 Ill 2d 291, 155 NE2d 29 (1958).

The prejudicial effect of the attempted impeachment is more readily understood when it is considered that even if Pucillo’s silence were a tacit admission, the attempted impeachment was improper. An out-of-court accusation by a witness against a defendant is not admissible as proof of the truth of the accusation unless it was made in his presence, People v. Morgan, 28 Ill2d 55, 190 NE2d 755 (1963); the accusation may be used only to impugn the credibility of the witness by showing his inconsistency, People v. Moses, 11 Ill2d 84, 142 NE2d 1 (1957). When the jury is not instructed as to the limitations on the use of the accusatory statement, there is a great danger that it will consider the evidence for an improper purpose and accept it as substantive proof of the defendant’s guilt. This is especially so when the witness was an alleged confederate of the defendant. This danger is lessened by instructions, and convictions have been reversed in cases where limiting instructions were not given. E. g., People v. Tate, 30 Ill2d 400, 197 NE2d 26 (1964); People v. Paradise, 30 Ill2d 381, 196 NE2d 689 (1964); People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959). In the case at bar the attempted impeachment created the serious danger that the jury would use as substantive evidence against Svizzero the testimony which was admitted only for the attempted impeachment of Pucillo. The danger was not mitigated by a limiting instruction. The jury was not admonished at the time the evidence was admitted that it was being received only for impeachment and no written instruction was subsequently given cautioning the jury to restrict its consideration of the evidence to its proper purpose.

Svizzero’s defense was bound up with that of his co-defendants Johnson and Yocca. Their explanation of how the three of them came to be at the union hall and what they did there was contradicted in several vital details by the State’s witnesses and by the inferences that could be drawn from their being caught on the premises. The issue of credibility was thus the determinative factor in the jury’s finding against Svizzero. Pucillo and Mrs. Johnson were the only defense witnesses who were not defendants. The improper impeachment of Pucillo made it virtually impossible for the jury to believe his trial testimony. As a result of the attempted impeachment the jury could have concluded that Pucillo, an admitted participant in the burglary, had implicated Svizzero. Because of the danger that the jury used the attempted impeachment as evidence of the guilt of the defendant, the conviction must be reversed and the cause remanded for retrial.

Reversed and remanded.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael G. Johnson, Defendant-Appellant.
    Gen. No. 51,261.
    First District, Third Division.
    June 8, 1967.
    George S. Feiwell, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, William F. Schwind and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant was charged with speeding and found guilty. The complaint against the defendant set forth his name and address. It also set forth that on October 10, 1965, at 3:45 a. m. the defendant drove and operated a motor vehicle, to wit, a Chevrolet, upon a public highway of this State, to wit, on Calumet Expressway between 111th and 124th Streets, within the corporate limits of the City of Chicago, and did then and there unlawfully violate section 49 (a) (2) UART of the State of Illinois (Ill Rev Stats 1965, c 95%, par 146). The complaint also alleged that the defendant was driving at the rate of 87 miles per hour in a 55 mile per hour zone. The action was brought by the People of the State of Illinois. After trial the defendant was found guilty. A motion in arrest of judgment was filed and overruled.

Section 49 (a) (2) UART provides that no person shall drive any vehicle upon any public highway of this State at a speed which is greater than the applicable maximum speed limit established by this section or by a regulation or ordinance made pursuant to the provisions of this Article.

The defendant’s sole contention on this appeal is that the complaint was defective in that it failed to charge a violation of the statute.

In People v. Perlman, 15 Ill App2d 239, 145 NE2d 762, the defendant was charged with speeding. The information alleged that the defendant “did . . . operate a certain motor vehicle . . . upon a public highway of this state, to wit, Peterson . . . situated within the corporate limits of the city of Chicago aforesaid, and did then and there unlawfully violate section 49 Speed of the (UART) of the State of Illinois by driving said vehicle at the rate of 42 miles per hour within a zone where the prima facie speed limit was 30 miles per hour.” In the Perlman case the court on page 249 said:

“It has been held that in order to give the court jurisdiction of the subject matter in a criminal case it is essential that the accused be charged with a crime, and that if he is not so charged, without any necessity of his making a motion to quash or other objection to the pleadings and even in spite of the fact that he has entered a plea of guilty, any judgment rendered against him under such pleadings is void and may be attacked at any time either in direct proceedings on review or collaterally, and that no waiver or consent by a defendant in a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of criminal law.”

At the time of the decision in that case the statute did not fix a speed limit and provided only that a vehicle shall not be driven at a speed greater than is reasonable and proper having regard to the traffic and use of the highway or so as to endanger the life or limb or injure the property of any person. The statute at that time also provided that driving in excess of certain posted speed limits was prima facie evidence of violation of the statute. The reason the court in that case reversed the judgment was because of the failure of the information in that case to allege that the vehicle was being driven at a speed greater than is reasonable and proper having regard to the traffic and use of the highway, and the court in that case said that the provision in the statute which makes a violation of properly posted speed limits prima facie evidence of a crime is a rule of evidence and not one of substantive law.

The Perlman case, however, can be of no comfort to the defendant in this case, since the statute has been amended and now provides specific limits at which a vehicle may be driven, and in other instances provides that the establishing of speed limits is delegated to the Department of Public Works and Buildings, section 49.01, the Toll Highway Commission, section 49.02; county boards in some cases, park districts, cities, villages, or any incorporated towns as to streets not under the jurisdiction of the Department of Public Works and Buildings or the Toll Highway Commission, section 50.

Section 50 UABT also provides whenever any local authority or park district determines, upon the basis of any engineering or traffic investigation concerning a highway or street on which it is authorized by that section to establish speed limits, that the maximum speed limit prescribed in section 49 of the act is less than is reasonable or safe with respect to the conditions found to exist at any place or along any part or zone of said highway or street, the local authority or park district shall determine and declare by ordinance a reasonable and safe absolute maximum speed limit at such place or along such part or zone which increases the limit within an urban district, but not to more than 65 miles per hour. When such a limit so determined by a park district, city, village, or incorporated town becomes effective, it suspends the application of the limit prescribed in section 49 of the act when appropriate signs giving notice of the limit are erected at the zone of a highway or street. Section 49 of the UART (Ill Rev Stats 1965, c 95%, par 146) provides that in an urban district the maximum is 30 miles per hour, except in an alley the maximum is 15 miles per hour.

The argument made by the defendant is that the complaint did not inform him what body had determined the speed for the zone in which he was arrested on Calumet Expressway. The point raised by the defendant, however, is academic and need not be decided for the reason that section 49.01 UART provides that the Department of Public Works and Buildings may not fix a speed limit in excess of 70 miles per hour on a highway or street which is specially designed for through traffic, and may not fix a speed of more than 65 miles per hour on any other highway. Section 50 UART limits the maximum speed which may be determined by the county board, park district, city, village, or incorporated town to not more than 65 miles per hour. Since the complaint in this case alleges that the defendant was traveling at 87 miles per hour on Calumet Expressway in the City of Chicago, and the statute limits the speed which may be determined by any local authority or park district to not more than 65 miles per hour, the complaint in this case was sufficient to charge a crime.

The report of proceedings was not made a part of the record on appeal, and the defendant does not here question the allegation that he was speeding at the rate of 87 miles per hour at the time of his arrest. The defendant far exceeded any limit as to speed fixed by statute for an urban área.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dan Walker, Defendant-Appellant.
    Gen. No. 51,394.
    First District, Third Division.
    June 8, 1967.

      Warren J. Carey, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was tried before a magistrate for the crime of battery. He was convicted and fined $300 and costs. He appeals from this judgment. The principal charge of error is that the prosecutor attempted to prejudice the court by persisting in an improper line of questioning during cross-examination. The prosecutor questioned defendant with respect to a purported criminal record, but at no time offered documentary evidence of any criminal conviction which would reflect on the defendant’s credibility as a witness. The State admits that the cross-examination was intended for impeachment purposes. The facts follow.

On the evening of October 14, 1965, Mrs. Evelyn Winet was driving an automobile in the parking lot of the Old Orchard Shopping Center in Cook County. Defendant was also driving a car in the same parking lot, and according to Mrs. Winet, he struck the rear of her car. The drivers left their cars and began to argue about the circumstances of the collision. Mrs. Winet testified that defendant approached her shouting, “I was following you around the parking lot and I could choke you.” Thereupon he threw her to the ground causing her necklace to break.

Defendant’s account of the incident is quite different. He testified that Mrs. Winet backed into him and that thereupon they both got out of their cars and began quarreling about the accident. Mrs. Winet stated that she was going to call the police. Defendant replied that he did not care whom she called and that he was going to leave. With that he turned to go and she grabbed him by the sleeve of his sweater. When he jerked away from her, Mrs. Winet stumbled back and fell to the pavement. Defendant turned toward her, and she screamed. He returned to his car and drove off.

Defendant called three character witnesses who testified that he had a good reputation and was known as a peaceful person. When he testified in his own behalf the State undertook to impeach him, and on cross-examination the prosecutor asked him if he had been “in court” in Florida and if he had been “sentenced” at that time. Defense counsel objected to both questions and the court sustained the objections and ordered the questions stricken. Defendant moved for a mistrial, but the motion was denied. The prosecutor, resuming his cross-examination, asked “Have you ever been in jail?” Once again defendant’s objection was sustained. At that point the prosecutor displayed documents which appeared to be police reports. This caused defense counsel to state for the record:

“May the record show that the Assistant State’s Attorney is exhibiting two sheets of white paper, which are common to all those who are in this profession. I think it is highly prejudicial.”

The improper conduct of counsel may be prejudicial in a close case, especially when the veracity of the witnesses is a critical issue. In this case only two people witnessed the occurrence. They were both parties to the event and their testimony on the vital issues is directly contradictory. While the court sustained objections to the improper questions, the prosecutor persisted in his efforts to discredit defendant’s testimony by innuendo.

The State may impeach the testimony of a defendant in a criminal case by introducing proof, either by record or authenticated copy, that the defendant was previously convicted of an infamous crime. Bartholomew v. People, 104 Ill 601; People v. Halkens, 386 Ill 167, 53 NE2d 923. It is improper to cross-examine a defendant as to prior convictions unless the defendant has himself opened the door to a particular line of questioning on direct examination. People v. Snell, 74 Ill App2d 12, 219 NE2d 554; People v. Smith, 63 Ill App2d 369, 211 NE2d 456. In People v. Smith, supra, the court said, at p 381:

“Our Supreme Court formerly held that the effect of the defendant disclosing from his own lips the fact of his prior convictions was so damaging that the only manner in which a prior conviction could properly be established was by the record or an authenticated copy of the conviction. Under this view, if the defendant were also examined regarding his prior conviction, it would be reversible error.
“Recently, however, our Supreme Court has modified this view and has held that the cross-examination of a defendant as to a prior conviction is not reversible error if the record is also admitted as proof of the conviction.” (Emphasis ours.)

In the instant case the prosecutor did not offer any proof of a prior conviction, and nothing shows that the crime to which he was alluding was an infamous crime. Moreover, the questions were ambiguously phrased. A witness could respond in the affirmative to a question such as was asked here, “Have you ever been in jail?” without admitting that he had been an inmate. The questions, “Were you in court at that time ?” and “Are you the same Daniel Wayne Walker who was sentenced in Florida at that time?” are subject to similar objections. The insinuation of such questioning tends to be damaging to the defendant, even though objections are sustained and the questions are stricken, because the trier of fact has been encouraged to speculate as to the nature of the offense so implied. In such a situation the questions may be more damaging, even though stricken, than proof of a prior conviction properly introduced into evidence. The conduct of the prosecutor in persisting in such improper cross-examination and displaying what might be record sheets was prejudicial and it cannot be overlooked as harmless error.

Defendant’s credibility was a critical factor in the determination of the case. The question was solely one of veracity between defendant and Mrs. Winet. Under such circumstances it is of special importance that the record should be free of such prejudicial conduct as here committed. The judgment is therefore reversed and the cause is remanded for new trial.

Judgment reversed and cause remanded.

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


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Wilson, Defendant-Appellant.
    Gen. No. 50,617.
    First District, First Division.
    June 12, 1967.
    Rehearing denied July 11, 1967.

      Arthur J. O’Donnell, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Robert Wilson and his wife Barbara were jointly indicted for knowingly obtaining by deception, control over certain property of Spiegel, Inc., in violation of chapter 38, section 16-1 (b). They were both found guilty by a jury. Robert Wilson was sentenced to a term of not less than four, nor more than seven years. This appeal concerns only Robert Wilson.

Defendant and his wife own a building located at 14846 So. Lincoln Avenue in Harvey, Illinois. They reside in another building around the corner. On March 28, 1964, a phone order was received from a man who identified himself as Willie Wilson. He ordered several items and directed that they be delivered to a Mrs. Mary Ford at 14846 So. Lincoln Avenue, Harvey, Illinois. An investigator from Spiegel’s went to the address and inquired from neighbors in adjacent buildings if a Mary Ford lived at the stated address. The information he received was that no such person lived there.

The following day the investigator returned and saw a car parked near the building. He went to the Harvey Police, where it was determined from the license plate number that the car belonged to Robert Wilson. The Spiegel Warehouse was contacted. Four packages, containing all but one of the items listed in the telephone order, were brought to the Harvey Police Station and marked for identification by a police officer. A Spiegel truck driver was also dispatched to the Police Station.

The driver was given the four packages and a Spiegel order blank which was to be signed upon delivery of the merchandise. Two Harvey Police Officers in an unmarked car, two investigators from Spiegel in their own car and the delivery truck then proceeded to the building at 14846 Lincoln Avenue. If the driver succeeded in delivering the packages, he was to drive away leaving the tail gate on the truck down.

It is undisputed that the driver went to the stated address, talked to defendant Robert Wilson, and left without leaving the packages. Wilson drove to his residence around the corner and returned with his wife. The truck driver also returned to the premises, left the packages and drove away. The police closed in immediately and placed the Wilsons under arrest.

Testimony of the content of the conversations between the truck driver and Robert and Barbara Wilson is in conflict. Testimony of the actions of the defendants at the time of their arrest is also conflicting. The truck driver testified that on his first arrival at the premises, he saw Robert Wilson and asked if Mary Ford lived on the premises. Defendant pointed to the second floor. The driver went back to the truck, pulled up alongside the house, went to the second floor and knocked on the door. Wilson opened the door. The driver asked: “Mary Ford live here?” Defendant answered, “Yes.” The driver asked Wilson to get her to sign for the package. Wilson called “Mary” three times and when there was no answer said: “She must be awfully tired. She just had a baby, she might be hemorrhaging.” Wilson asked if he could sign as he was Mary Ford’s husband. The driver said he had to call his dispatcher to see if this was all right, and would return. The driver then left.

Defendant’s version of his encounter is entirely different. He testified that the driver asked him where he could find Mary Ford. Defendant answered, “I am sorry sir. I don’t know.” The driver showed him the delivery slip and Wilson said the address was correct, but no one lives here by that name. Wilson then remembered his wife had rented the upstairs apartment but did not know their name. The two men went upstairs but received no response when they knocked on the door and hollered: “Anyone home?” The driver then said: “(I)f you want to accept these packages I have for her I will leave them with you.” Wilson responded that he would go and ask his wife the name of the new tenants and the driver said he would check with the dispatcher if it was all right to leave the packages. They then left the building together.

Defendant was observed by the police officers going to his residence two blocks away and returning to the Lincoln Avenue building. The driver drove to where the Spiegel investigators were and they told him it was okay to have defendant sign for the packages. He then returned to the building. The driver testified he went up to the second floor apartment, Barbara Wilson was standing at the door and, upon being asked if she was Mary Ford, answered “yes.” She signed the order blank “Mary Ford.” The driver brought the four packages upstairs and left, leaving his tail gate down.

Barbara Wilson’s testimony is quite different. Upon being informed by her husband that a truck driver had some packages for a Mary Ford, she informed her husband that the new tenants were named Scott. She returned with Robert to the building. The driver approached her in the hall and said: “(T)ell that fellow my boss says okay to leave the packages. Where do you want them?” Barbara Wilson told him to leave the packages in the hall. The driver wanted her husband to sign but he had gone to the washroom. The driver, indicating the signature line, told her to sign “Mary Ford” and left the building.

The officers saw the driver pull away. They also saw Robert and Barbara Wilson running from the house. Barbara was arrested in the backyard. Robert went into the garage and was found there under a car wearing a white shirt. The Wilsons said they walked out of the house. Robert went to the garage to check a tire on his father’s car. The officers then went into the enclosed back porch of the building and recovered the four packages that had previously been marked for identification.

The first point raised by defendant is that his arrest is unlawful, and the four packages seized at that time should have been suppressed. It is admitted that there was no warrant for Robert Wilson’s arrest. However, the facts clearly indicate that the officers had probable cause to believe an offense had been committed by this defendant and his arrest was proper. People v. Brinn, 32 Ill2d 232, 204 NE2d 724 (1966).

At the hearing on the motion to suppress the evidence, the officers testified that the four packages involved were taken from a common hallway in the building. Thus no unlawful search was involved. United States v. Polk, 201 F Supp 555 (ND Cal SD 1961), affirmed 314 F2d 837 (9th Cir 1963). Even accepting defendant’s argument that there was a search of defendant’s private property, such search was incident to a lawful arrest. People v. McCrimmon, 37 Ill2d 40, 224 NE 2d 822 (1967).

The second point raised by defendant is that the State failed to prove that the value of the goods stolen was in excess of $150. The jury returned a general verdict with no specific finding as to value.

Two investigators for Spiegel testified concerning the value of the merchandise. The first investigator testified that the approximate value of the merchandise ordered was $300. The second investigator admitted that he had no independent recollection of the value but refreshed his recollection by looking at the order blank. People’s Exhibit No. 1, admitted in evidence. He then stated that the value was $290.84. Defendant refused to stipulate that the value of the goods exceeded $150. The investigator then opened each of the packages and showed the jury a phonograph, a movie camera set, a paint sprayer and motor. The investigator again stated the value was $290.84. Neither investigator was cross-examined on the question of value of the merchandise. We hold that the above described testimony was sufficient to show the value of the merchandise.

Defendant cites People v. Kurtz, 69 Ill App2d 282, 216 NE2d 524 (1966), for the proposition that the price at which an item is sold is not proof of value. However, in Kurtz the evidence was of a sale price eight months after the item was stolen. In the instant case, the invoice accompanied the merchandise and was the price defendant “agreed to pay.” The testimony of the investigators, and the established selling price as shown on the invoice distinguish the instant from the Kurtz case.

Defendant also argues that the jury’s general verdict is insufficient because it made no finding as to value and secondly because the indictment although properly setting forth the crime contained a typographical error of the section of the Criminal Code. Defendant admits that he was aware of the charges against him and the typographical error did not prejudice him in any manner. The only question is the propriety of the general verdict. Defendant relies mainly on the case of People v. Swinson, 406 Ill 233, 92 NE2d 758 (1950). In Swinson the court stated: (P 237.)

“The value of the property taken is a material fact necessary to establish the type of larceny charged; that value must be specifically found by the jury and be incorporated in its verdict.”

Although defendant refused to stipulate that the value of the merchandise was in excess of $150, he did not cross-examine either witness who testified on value, and his only objection was based on the fact that the Spiegel invoice (People Exhibit No. 1) was not an original. (Exhibit No. 1 was the driver’s copy, signed “Mary Ford.”) We therefore hold that there was no real issue as to value or conflict on the evidence of value and a general verdict was proper. People v. Tomaszek, 54 Ill App2d 254, 204 NE2d 30 (1964).

The final issue raised by defendant is that he was not proven guilty beyond a reasonable doubt. He argues that the evidence does not show that defendant “intended to deprive” Spiegel of the merchandise involved. In a case of this nature proof of the elements of the crime is for the jury to determine. People v. Rogers, 16 Ill2d 175, 157 NE2d 28 (1959). The evidence here showed that defendant initially represented himself to be Mary Ford’s husband. When the Spiegel truck driver would not leave the merchandise, defendant brought his wife back to the Lincoln Avenue building. After the merchandise was left, he ran to the garage behind the building and attempted to hide under a car. This evidence is not so unsatisfactory as to raise reasonable doubt of defendant’s guilt. People v. Drumwright, 48 Ill App2d 392, 396, 199 NE2d 282 (1964).

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

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Joseph Novak (Impleaded), Defendant-Appellant.
    Gen. No. 50,968.
    First District, First Division.
    June 12, 1967.

      Manning K. Leiter, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was convicted of attempted robbery and aggravated battery. He was sentenced to concurrent terms of 10 to 14 years for attempted robbery and 5 to 10 years for aggravated battery. His codefendant, George Bellinghiere, entered a plea of guilty and was sentenced to 3 to 6 years.

On appeal defendant contends:

1. Both convictions should be reversed because of prejudicial error which was committed by the trial court in admitting testimony concerning defendant’s refusal to make a statement to police.
2. The defendant’s conviction of aggravated battery must be reversed because the defendant was not legally accountable for the battery, a shooting perpetrated by an alleged accomplice in the attempted robbery.
3. The defendant’s sentence was unjustly severe. If his convictions are not reversed, the sentence should be reduced.

On August 17, 1964, defendant and Bellinghiere entered a tavern and defendant, holding a gun, said, “This is a holdup.” The tavern owner, Joseph Chmura, was shot by Bellinghiere. Defendant was identified by five occurrence witnesses as the man with a gun, who announced the holdup. Defendant testified and denied he planned any robbery or that he had a gun.

Defendant alleges prejudicial error during the direct examination of a police officer, a State’s witness. He testified that on August 31, 1964, “we asked him about the robbery in the tavern and he said he was instructed by his attorney not to make a statement.” The trial court denied defendant’s motion for a mistrial and permitted the statement to stand.

We agree that the admission of this statement was error. See People v. Lewerenz, 24 Ill2d 295, 299, 181 NE2d 99 (1962). However, we do not believe this error was prejudicial here, because it could not have reasonably affected the result of the trial in view of the overwhelming evidence of defendant’s guilt. Real justice was not denied, and a just conclusion was reached. See People v. Tranowski, 20 Ill2d 11, 17, 169 NE2d 347 (1960).

Defendant’s next contention is that he was not guilty of aggravated battery because he was not responsible for the conduct of Bellinghiere, who confessed the shooting. In support, defendant cites section 5-2 of the Criminal Code (Ill Rev Stats, c 38), which defines when a person is legally accountable for the conduct of another. From this defendant argues that he “must have had an intent to promote or facilitate the shooting, in order to be legally accountable for it. But there is no evidence in the record that defendant had any such intent.” We find no merit in this contention. The record shows a common design to do an unlawful act, and “whatever is done in furtherance of the design is the act of all, making each person guilty of the crime.” People v. Cole, 30 Ill2d 375, 379, 196 NE2d 691 (1964).

We find merit in defendant’s request that his attempted robbery sentence should be reduced. This court will take notice of a copy of a letter included in defendant’s brief, in which the trial judge states, “You point out that I then sentenced the defendant to ten to fourteen years in the penitentiary on the robbery charge. Were I vested with the jurisdiction to review this sentence at this time, I would not alter the maximum term but would reduce the minimum term to five years,” relating his reasons therefor, which were present at the time of sentencing. Therefore, we believe this is a proper case for the use of the statutory power given on appeal to reduce the punishment imposed by the trial court (Ill Rev Stats 1965, c 38, § 121-9 (b) (4)).

For the reasons given, defendant’s conviction of attempted robbery is affirmed and his sentence is reduced to a minimum of 5 years and a maximum of 14 years in the Illinois State Penitentiary. Defendant’s conviction of aggravated battery and sentence is affirmed. Both sentences are to run concurrently. As modified, the judgment of the Criminal Division of the Circuit Court is affirmed.

Judgment modified and affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Fulton, Defendant-Appellant.
    Gen. No. 51,047.
    First District, First Division.
    June 12, 1967.

      Chauncey Eskridge, of Chicago (Stanley Bass, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Joseph Fulton, was indicted on the charge of abortion. He pleaded not guilty, waived a jury trial and on a finding of guilty by the trial judge was sentenced to a term of not less than two nor more than five years.

On this appeal the defendant contends: (1) that the statute under which he was indicted and convicted is so vague and indefinite that it fails to meet the requirements of due process of law guaranteed by the United States and Illinois Constitutions; (2) that the indictment is unconstitutional and void because each member of the grand jury which returned the indictment was required to state a belief in God; and (3) that the State failed to prove defendant’s guilt beyond a reasonable doubt.

The defendant concedes that language in the indictment follows the statute, but contends that the statute is so vague and indefinite that it fails to . meet the requirements of due process of law. Chapter 38, section 23-1 of the Illinois Revised Statutes (1963) provided that, “A person commits abortion when he uses any mstrwment, medicine, drug or other substance whatever, with the intent to procure a miscarriage of any woman.” (Emphasis added.) The defendant primarily attacks the italicized portion of the statute and claims that “the phrase ‘uses any instrument’ has such a broad meaning that it encompassed various forms of innocent conduct, i. e., the instrument might be a musical instrument, a magician’s wand, or other article which does not touch or enter the human body.” Specifically he attacks the use of the word “instrument” and says it is so vague and indefinite as to leave the public uncertain as to the conduct it prohibits and leaves the court free to decide, without any legally fixed standards, what is prohibited.

It is well settled that an indictment must be specific enough to enable the defendant to prepare his defense, however, this is also the basic test and reason for allowing a bill of particulars upon motion. People v. Gerold, 265 Ill 448, 107 NE 165. In the case at bar, the defendant, upon motion, was given a bill of particulars setting out the instrument used. We conclude that adequate information was provided for the defense. People v. Woods, 24 Ill2d 154, 180 NE2d 475. The words assailed taken in connection with the context of the statute are commonly understood and their use does not render the statute invalid. Triner Corp. v. McNeil, 363 Ill 559, 2 NE2d 929.

The defendant next contends that the indictment is void and unconstitutional because each member of the Grand Jury which returned it was required to state a belief in God. This point was not presented to the trial judge and it is well established that objections not presented for the trial court to rule on cannot be asserted for the first time on review. See People v. Irwin, 32 Ill2d 441, 207 NE2d 76. Nevertheless we have considered this contention, but find no merit to it. Under the Maryland Statute a belief in God was a prerequisite for a person to become a juror. Schowgurow v. State, 240 Md 121, 213 A2d 475, and State v. Madison, 240 Md 265, 213 A2d 880, held that this requirement offended the establishment clause of the First Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment. These cases are inapplicable as chapter 78, section 18, of the Illinois Revised Statutes (1963) does not require a belief in God as a prerequisite to serving as a Grand Juror. We also find that Torcaso v. Watkins, 367 US 488, also cited by the defendant, where the U. S. Supreme Court reversed a decision holding that a belief in God was a prerequisite to holding public office, is inapplicable on the facts.

Chapter 78, section 18, of the 1963 Illinois Revised Statutes does provide that the Foreman and the other Grand Jurors shall take an oath before they enter upon the discharge of their duties in which oath they swear that in all of their presentments they will present the truth, the whole truth and nothing but the truth, according to the best of their skill and understanding “so help you God.” However, we are of the opinion that defendant’s contention is squarely met and answered by chapter 101, section 4 of the Illinois Revised Statutes (1963) which provides under the heading “Affirmation” that:

Whenever any person required to take or subscribe an oath, as aforesaid, and in all cases where an oath is upon any lawful occasion to be administered, and such person shall have conscientious scruples against taking an oath, he shall be admitted, instead of taking an oath, to make his solemn affirmation or declaration in the following form to-wit: You do solemnly, sincerely and truly declare and affirm. Which solemn affirmation or declaration shall be equally valid as if such person had taken an oath in the usual form; . . .

The defendant also contends that he was not proven guilty beyond a reasonable doubt of committing a Criminal Abortion. He argues that even assuming that someone used an instrument or drug on the prosecuting witness with intent to procure her miscarriage, a reasonable doubt exists that the defendant committed the abortion. He asks, “would a person risk his successful pharmacy, his pharmacist license, his license to broadcast, his family, to engage in such criminal conduct ?”

We have examined the record which shows the prosecuting witness testified that after a doctor told her she was pregnant she went to defendant’s drugstore with a friend on January 12, 1965. She said he closed the store and told her to go in the back room. She put on a sheet and while on a table, the defendant inserted an orange tubing in her uterus, packed it with cotton and told her to remove the tubing the next day when the bleeding started. She said the procedure took five to ten minutes and she paid him the agreed price of $100.

Dr. Leo K. McGill testified that he examined the complainant and removed the afterbirth and fetus. In his opinion she had had an abortion.

Jo Ann Piaz testified that she knew the defendant and when she informed him of her friend’s trouble he told her he could help and it would cost about $100. Afterwards she called defendant and was instructed to bring the complainant to the store at a specified time. On January 12, 1965, she said she accompanied the complainant to the defendant’s store, where the defendant and the complainant went in the back room. About fifteen minutes later they came out and the defendant told the complainant to leave the packing in for a certain period of time, gave her some pills and accepted money from her.

The defendant, Joseph Fulton, a licensed pharmacist, testified that Jo Ann Piaz was a regular customer in his drugstore and had told him that she had a friend that needed help. He understood her to mean that her friend wanted publicity on the radio show he had at that time and he agreed to set up an audition for her. He stated he remembered that the complainant had come in his pharmacy late one night and offered to sell him clothes in her shopping bag. He said she asked to use his bathroom because she was nauseous and that she was in that room for between five and ten minutes. He denied that he directed the complainant to lay on a table or that he inserted a rubber tube containing a metal rod in her uterus or that the complainant, in the company of Jo Ann Piaz, gave him $100.

Dr. Jasper Williams, a physician and surgeon, testifying for defendant, said it was impossible to induce a rubber tube into the vagina unless a speculum was used to open the vagina and that “it is possible, but it is like shooting fish in a barrel.”

We are satisfied that the evidence, despite the denial of the defendant, clearly justified a finding that the defendant used an instrument with intent to procure a miscarriage. In this case there is considerable corroborating testimony which showed that the complainant accompanied by a witness went to defendant’s store for the purpose of procuring an abortion, which was accomplished, and $100 was paid to the defendant for his services. We adopt the language in People v. Gomez, 29 Ill2d 432, 434, 194 NE2d 299, “We will not reverse a conviction solely on the ground that the trial court believed the testimony of the State’s witnesses rather than that of defendant.” The trial judge saw and heard the witnesses and the weight to be given to their testimony is a question for the trier of the facts.

The defendant was proven guilty of committing an abortion beyond a reasonable doubt and no reason exists for this court to reverse his conviction and accordingly the judgment is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


text:
    Gertrude Kane, Plaintiff-Appellee, v. Yellow Cab Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,094.
    First District, First Division.
    June 12, 1967.
    Jesmer & Harris and Michael A. Gerrard and Allen S. Gerrard, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff brought this action to recover for personal injuries she sustained while riding as a passenger in defendant’s cab, being driven by its driver, Paul F. Con-row. At the close of all the evidence, plaintiff dismissed Conrow as a defendant. The jury returned a verdict of guilty as to the defendant Yellow Cab Company, damages were assessed in the amount of $12,000, and judgment was entered thereon. The defendant’s post-trial motion for judgment notwithstanding the verdict or in the alternative, a new trial, was denied and defendant appeals. No questions are raised on the pleading.

On October 1, 1957, at about 8:30 p. m., plaintiff boarded defendant’s cab in front of the Bismarck Hotel, located on Randolph near Wells Street, in Chicago, Illinois. She informed the driver of her destination in Oak Park, Illinois, and the cab proceeded West on Randolph Street. It was dark so plaintiff just looked at the headlines of a newspaper she had in her lap. She then closed her eyes but did not go to sleep. As the cab approached Aberdeen Street, she heard a fire engine siren. She looked up to see where the fire engine was going. She observed the cab passing a standing car and then saw a car directly in front of the cab. The next thing plaintiff knew was that she was on the floor of the cab and she heard an impact in the front of the cab. She was thrown up and back about five times. After the impact she felt the cab move backward but was not sure. Plaintiff experienced a terrible pain in her arm from the back of the left shoulder all the way down the left arm to her thunab. She was taken by the cabdriver to the Presbyterian Hospital. She had also bumped her head against the seat and there was some swelling. X rays taken at the hospital revealed a fracture of the cervical neck of the humerus (upper arm).

The driver of a vehicle which was also Westbound on Randolph Street, John Richmond, corroborated plaintiff’s testimony. About one block before Aberdeen Street, the taxicab in which plaintiff was riding pulled into the same lane and in front of Richmond. There was another car in front of the cab. As the sound of the siren was heard, the first car stopped. The taxicab hit the rear of that car. Upon colliding with the car in front, the cab immediately backed up and hit the front end of Richmond’s car. Photographs admitted into evidence revealed a small dent in Richmond’s car, just above the radiator. There was no damage to the front end or back of the cab.

The cabdriver’s version of how the accident occurred was entirely different. He admitted that plaintiff became his passenger at the Bismarck Hotel and that he proceeded West on Randolph Street toward Oak Park, traveling at about 20 to 25 miles per hour. When he was about 140 feet from the intersection of Randolph and Aberdeen he heard a siren. The cabdriver released his foot from the gas pedal. He admitted having seen a car about % of a block in front of him, but his car was no longer visible as he began to slow down. He did not know if there were any cars behind him. At about 40 feet from Aberdeen Street, the driver observed a fire engine Northbound on Aberdeen Street. He applied his brakes and slowed down to two or three miles per hour, and was 12 to 15 feet from the corner. He was then bumped in the rear but not too hard, “just a bump, ordinary bump.” The cab moved two or three inches but did not come in contact with anything in front of it.

After the “bumping” the cabdriver got out and opened the left rear door. Plaintiff was “crumpled on the seat, partially on the floor.” He asked her if she was hurt and she answered she did not know. The cabdriver exchanged information with the driver of the car behind him and then drove plaintiff to the hospital.

Defendant’s first argument is that the verdict of the jury is against the manifest weight of the evidence. It asserts that the testimony of both plaintiff and Richmond is incredible and not to be given any weight. This court is not a judge of the credibility nor does it weigh the evidence. Jenkins v. Hechtman, 83 Ill App2d 72, 226 NE2d 383. The jury heard the evidence and chose to believe the plaintiff’s version of how the accident occurred.

Defendant attempted to impeach plaintiff by showing that on a prior occasion she said the cab was hit from behind. The jury was properly instructed on the effect to be given impeachment testimony. Even considering the impeachment testimony, we cannot say the jury verdict is palpably erroneous or unsupported by the manifest weight of the evidence. Jenkins v. Hechtman, supra.

The next point argued by defendant is that the action of the cabdriver was not the proximate cause of the accident. This entire argument is based on the assumption that the accident occurred by the cab striking the vehicle in front of it. This is what caused plaintiff to be thrown off of the seat and strike her arm against something in the cab. The question of causation was properly submitted to the jury and we do not find any error in their verdict.

The last point raised by defendant is that the court refused to give an instruction tendered by defendant. The instruction dealt with the negligence of a third party or outside agency. We have examined the record and find that the precise language requested by defendant was given to the jury as part of another instruction.

The verdict in favor of plaintiff was proper and the trial judge was justified in entering judgment on the verdict and denying the post trial motion.

Judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

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


text:
    Jon Mabion, et al., Plaintiffs-Appellants, v. Lorraine Olds, Defendant-Appellee.
    Gen. No. 51,161.
    First District, First Division.
    June 12, 1967.
    Rehearing denied July 5,1967.

      Joseph R. Curcio, of Chicago (Sidney Z. Karasik, of counsel), for appellants.
    Treacy & Garbutt, of Chicago (Jerome J. Jacobson, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiffs appeal from an order vacating a default judgment entered against defendant pursuant to a complaint for damages arising out of an automobile accident.

The facts are not in dispute. On December 2, 1963, plaintiffs filed a complaint against the driver and owner (defendant in this appeal) of an automobile alleging personal injuries and praying for damages. The original summons was returned January 16, 1964, indicating that both the driver and defendant were not found. Alias Summons were issued and returned February 3, 1964. The return as to the instant defendant states:

“I certify that I served the within writ on the defendant Lorraine Olds, by leaving a copy at his/her usual place of abode in my county, with S. W. Woods a person of his/her family of the age of ten years or upwards and informing such person of the contents thereof on the 17 day of January 1964 and also by sending through the United States Post Office on the 17 day of January 1964 a copy of the within writ in a sealed envelope with postage fully prepaid addressed to the said defendant at such usual place of abode and no property found.
RICHARD B. OGILVIE, Sheriff, by /s/ Hamilton Deputy.”

The defendant was found to be in default on July 30, 1964, and the cause was set for a prove up. On October 16, 1964, a prove up was held and damages were assessed in favor of each of the plaintiffs totaling «¡519,014.-20 in the aggregate. No action was taken to collect this ex parte judgment for almost four months. There is no question but that prior to the entry of the ex parte judgment, plaintiffs’ attorney had been in contact with defendant’s insurance carrier. Plaintiffs’ attorney also sent a letter to defendant prior to the entry of the default judgment. This letter, sent certified mail, was returned by the post office marked “unclaimed.”

On June 25, 1965, defendant filed a special appearance and moved the court to quash the service of summons. In support of this motion defendant filed an affidavit in which she stated that no person named “Woods” was a member of her family. The transcripts of interview with six persons who lived in the same building as defendant were also attached to the motion. Four of these persons had lived there in January, 1964. No one had ever heard of a man named “Woods.” The janitor for the building stated no such name ever appeared on the doorbell and the owner stated he never had such a name on any lease.

Plaintiffs filed no counteraffidavits but answered defendant’s motion alleging that she was not entitled to any relief since she was guilty of laches and lack of diligence. After a hearing on the motion the following order, from which plaintiff appeals, was entered:

“This cause coming on to be heard on the motion of defendant, Lorraine Olds, to vacate the judgment heretofore entered against her on October 15, 1964, and said defendant having filed herein her ‘Special Appearance’, affidavits in support of her Motion to Quash service of Summons and Suggestions of Fact and Law and plaintiff’s answer to said pleadings and the Court hearing arguments of counsel and being advised in the premises
“Finds that the judgment heretofore entered against the said Lorraine Olds is void and
“Hereby Orders that:
“(1) Service of Summons upon said defendant is quashed and the default of July 30, 1964 (is set aside).
“(2) Judgment entered October 15, 1964 against said defendant is vacated, set aside and held for naught.
“(3) Defendant is given thirty days to answer or otherwise plead and her Special Appearance shall stand as her general appearance.”

Defendant’s position throughout this case has been that the default order was void because the court had no jurisdiction over the defendant due to a failure to properly serve her with a summons. As the Supreme Court stated in Janove v. Bacon, 6 Ill2d 245, 128 NE2d 706 (1955):

“Where a defendant has not been served with process, the court has no jurisdiction to enter a judgment against him.”

Such a judgment may be vacated at any time. Barnard v. Michael, 392 Ill 130, 63 NE2d 858 (1945):

“A judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter or which lack the inherent power to make or enter the particular order involved, is void and may be attacked at any time or in any court either directly or collaterally.”

Plaintiffs have asserted that defendant’s motion was made pursuant to section 72 of the Civil Practice Act, Ill Rev Stats chapter 110, section 72 (1965) and consequently the ruling on the motion is appealable. However, section 72 (7) states as follows:

“Nothing contained in this section [72] affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.”

Defendant’s attack on the default order was because it was void. Consequently we do not consider the proceedings below as a Section 72 petition. The sole effect of the order entered was to vacate a void default judgment and require defendant to answer.

As we view the record in this cause the order entered was interlocutory, not final and appealable. The general rule is stated in Nichols, Illinois Civil Practice, § 5920:

“If the court sets aside or vacates a judgment otherwise than pursuant to the statutory procedure for relief from judgments and orders, the general rule is that the order is interlocutory and the parties must await a final judgment after the case has been tried on the merits before an appeal will lie.”

In City of Park Ridge v. Murphy, 258 Ill 365, 101 NE 524 (1913), the Supreme Court considered an appeal from an order vacating a money judgment that had been entered almost one year previously. The basis for the order was want of proper service of notice. The court dismissed the appeal and stated:

“ (W)hen the motion [to set aside a default and vacate a judgment] is allowed, and the judgment is set aside merely for the purpose of allowing the party to interpose a defense, the order is interlocutory, and an appeal will not lie therefrom. Walker v. Oliver 63 Ill 199. In such case the court does not finally determine the rights of the parties.”

See Chamness v. Minton, 39 Ill App2d 325, 188 NE2d 873 (1963): “The appeal is taken from an order setting aside a default order and ruling the defendant to answer within 10 days. This does not constitute a final and appealable order”; also Dross v. Farrell-Birmingham Co., 51 Ill App2d 192, 200 NE2d 912 (1964).

Defendant’s answer is on file and from the state of the record it appears that the cause is pending trial. Once the case is tried and a final order entered from which an appeal may be taken, setting aside the default judgment may be asserted as error. Walker v. Oliver, 63 Ill 199 (1872); City of Park Ridge v. Murphy, supra.

No rights of the plaintiffs having been finally adjudicated by the trial court’s order and there being no final order, plaintiffs’ appeal is accordingly dismissed.

Appeal dismissed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur B. Riley, Defendant-Appellant.
    Gen. No. 51,186.
    First District, First Division.
    June 12, 1967.

      Robert K. Lock, of Chicago (Gerald M. Panter, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel Flaum and James A. Stamos, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Arthur B. Riley, was convicted on the charge of forcible rape after a bench trial and was sentenced to serve a term of fifty years in the Illinois State Penitentiary. He appealed directly to the Supreme Court and that Court transferred the appeal to this court. On appeal the defendant contends that the State failed to establish beyond a reasonable doubt that the act of intercourse was performed forcibly and against the will of the prosecutrix, and that the essential element of penetration was not proven beyond a reasonable doubt.

At the trial, the eleven-year-old prosecutrix testified that on August 4, 1953, when she was seven years old, the defendant, who was a friend of the family, had been playing cards with her, her sister and brother, and asked her to accompany him to the store. She said the defendant instead took her to the second floor of an old raggedy house about two blocks from her home. She testified that the defendant then told her to take off her pants and lie down on an old dirty floor, which she did. She said he unzipped his pants, removed his private part, got on top of her and put his private part in her private part which hurt' and she passed out or fainted. When she awoke she attempted to run downstairs, but he caught her and hit her in the mouth. The defendant took her to his sister’s house and on the way told her that he would kill her if she told anybody. When she got home she told her parents what had happened and later told the police.

The mother of the child, Leola Felton, testified that the defendant had worked with her husband and she had known him for one year, and that on the day in question he had come to their house at about 2:00 p. m., and played with her children. Later she said she looked for the prosecutrix, but could not find her and that about 5:00 p. m. her daughter came home, crying, bleeding, her mouth swollen and her dress and shoes dirty, and told her what happened. She started to cry and her next door neighbor, Geneva Williams, came over and the police were called. Upon examining her daughter she found her pants wet and bloody at the crotch. Her daughter also told the police what happened.

Geneva Williams testified that on August 4, 1953, she visited Mrs. Felton in her home about 2:00 p. m., and was introduced to the defendant. Later she said, from her kitchen window, she saw the defendant walking through the playground with Mrs. Felton’s daughter. When she next saw the girl she observed that her mouth was bleeding and she looked as if she had been rolled in black dirt. She said she gave the girl a bath and noticed spots of blood on her vagina. The girl was crying and showed her where it hurt.

Dr. Fred Levit testified from the hospital records of the Cook County Hospital that he had examined the girl between 5:00 and 9:15 p. m. on August 4, 1953. He observed that her lips were swollen and that some blood was oozing from the stump of a tooth which was apparently freshly broken off. He examined her and found “dirt on the upper portion of the hymen at about the urethra and clitoris; and the hymenal ring was lacerated in two places. One of those lacerations was oozing a small amount of blood.” In his opinion the lacerations to the hymen could have been caused by the insertion of an erect male organ.

The defendant testified as the only witness in his behalf. He denied being in Chicago on August 4, 1953, and said he was in St. Paul, Minnesota, on that day, where he had been working for about two weeks. He knew the Felton family, had worked for the complainant’s father and had seen the complaining girl on several occasions. He denied taking the girl anywhere or ever abusing her physically. It was stipulated that he was 31 years old.

The defendant’s counsel argues that the girl’s testimony established that she voluntarily went with the defendant to a deserted house and no proof was offered that the act of intercourse was performed forcibly and against her will. He says the record discloses a complete absence of threats or intimidation which did not justify a finding by the trial court of forcible rape.

To affirm a finding of forcible rape there must be evidence that the act of intercourse was performed forcibly and against the will of the prosecutrix. People v. Faulisi, 25 Ill2d 457, 185 NE2d 211, or otherwise stated, without the consent of the prosecutrix. People v. Fryman, 4 Ill2d 224, 122 NE2d 573. The girl was seven years old, much below the age of consent, and is conclusively presumed to be unable to legally consent to an act of carnal knowledge. Addison v. People, 193 Ill 405, 62 NE 235. A seven-year-old girl cannot be expected to understand the nature of the act, let alone possess the will to resist against a friend of her parents. Force is always present in an act of intercourse between a seven-year-old female, incapable of consenting or resisting, and a thirty-one-year-old male.

It is also contended that penetration which is essential to a conviction for rape, was not proved beyond a reasonable doubt, either by direct or circumstantial evidence. Defense counsel states “in light of the defendant’s blanket denial of any participation in the alleged offense, the only direct evidence in the record tending to establish the requisite element of penetration was the testimony of the prosecutrix.” In our opinion, the testimony of the prosecutrix, when taken in connection with the corroborating testimony of her mother, a neighbor, and the examining physician, was ample to prove penetration beyond a reasonable doubt. It would strain any interpretation of the evidence to find, as defense counsel suggests, that the penetration could be by an object other than a penis. Here, the defendant denied committing the crime or ever being with the girl or striking her in the mouth, and testified that he was not in Chicago on the date of the crime. This despite the direct testimony of the girl and her mother who knew him well, and a neighbor of the girl who saw her and the defendant walking together in the neighborhood.

The credibility of the witnesses and the weight of their testimony are matters for the determination of the trial judge who saw and heard the witnesses. People v. Henson, 29 Ill2d 210, 193 NE2d 777. This court will not reverse the finding of the trial judge which is based on convincing and credible evidence. People v. Reaves, 24 Ill2d 380, 183 NE2d 169. We believe the evidence substantiates the judgment of the court and is accordingly affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


text:
    The County of Cook, et al., Petitioners-Appellants, v. The City of Chicago, a Municipal Corporation in Trust for the Use of Schools, Defendant-Appellee.
    Gen. No. 51,333.
    First District, First Division.
    June 12, 1967.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, James R. Burgess, Jr., and Ronald Butler, Assistant State’s Attorneys, of counsel), for appellant.
    James W. Coffey, of Chicago (Richard E. Girard, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an Eminent Domain proceeding brought by the petitioner, County of Cook, to condemn a portion of the property known as Shoop School. The City of Chicago, Defendant, was awarded the sum of $65,000 by the jury as just compensation for the taking. Petitioner’s post-trial motion to set aside the verdict was denied and this appeal was taken from the judgment entered on the verdict.

The entire school property contains 218,242 square feet and is situated in the block bound by 111th, 112th, Bishop and Laflin Streets in a densely populated area. The area is fenced and unpaved with a two-story school containing 38 classrooms and serves 1378 pupils. The subject of the taking is 11% of the schoolyard amounting to 24,151 square feet and has the following utilities and playground equipment located on it: Toboggan slide, sandbox, 2 softball backstops, 7 benches, 2 sets of parallel bars, 2 swing sets, 1 merry-go-round, 1 pair of horizontal bars, 2 horseshoe courts, 1 giant stride, 1 large tree, 1 water hydrant, 4 floodlights, 560 feet of chain link fence, 500 feet of new conduit which together with drains and other pipes are part of the entire system for all of the school and playground. The cost to the Board of Education for removal and relocation of the utilities and equipment amounts to $17,050, which amount was undisputed.

The petitioner called upon two qualified expert witnesses in the field of real estate appraisal to testify to the value accorded the condemned portion of defendant’s premises. James W. Felton valued the premises at $36,388 for its highest and best use as school property. He said his valuation of the land taken was reached by adding 10% over the value of the raw land in the area. The other witness, Eugene H. Fries, valued the subject property for school purposes at $26,820. On cross-examination he said his valuation was based upon the fair market value between a willing buyer and a willing seller which would be the same as to the Board of Education. On defendant’s motion the court ordered the testimony of Mr. Fries, as to value, stricken, and instructed the jury to disregard it. The court explained that after hearing argument in pretrial conference he had made his position clear that as a matter of law the fair market value between a willing buyer and a willing seller is not applicable as to value, where, as here, the property is used for a specific purpose. He stated, “This is a special use property for school purposes, and his valuation must be based on its highest and best use to school property and on no other basis.”

The defense showed through the testimony of Francis B. McKeag, an Assistant Superintendent of the Chicago Public Schools who is experienced in the acquisition of school sites, that the highest and best use of the condemned property was continued school use and that the property would have to be replaced. He stated that it would be in the best interest of the Shoop School to acquire property in the block on the East side of Bishop Street from 111th to 112th Streets where there is some vacant and some improved land. From his investigation the cost of acquiring this plot would be $300,000 and about %rd of this property would be to replace the property taken.

Richard J. Leyden, a real estate expert in the valuation of real property, testified that his valuation was based on its particular use on the theory of intrinsic value and not market value. He said that in order to replace this playground some contiguous plot of land must be found as a replacement. He testified further that the cost of acquiring such property for replacing the condemned property would amount to $80,243.

The petitioner contends that the trial judge erred in refusing to permit it to introduce evidence of Market Value, for the property involved, as a basis for determining just compensation, since such criteria represent the normal method of computing valuation in Eminent Domain Proceedings. It is argued that the court misinterpreted City of Chicago v. Farwell, 286 Ill 415, 121 NE 795, and subsequent railroad terminal condemnations, where the court, while stating that special capabilities of certain property must be considered in evaluating just compensation, never intimated that evidence of fair market value for the particular use could not be placed into evidence; that the court failed to distinguish between market value for any use, irrespective of the defendant’s current use, and market value for the particular school use; and failed to allow petitioner to proceed upon his own theory of the case.

The court stated, in a pretrial conference, that “this is a special use property and it is not going to be governed by any fair market value of any property in the neighborhood.” A “special use” of property has been defined as a situation where the land is not available for use for general and ordinary purposes. Lake Shore & M. S. R Co. v. Chicago & W. I. R Co., 100 Ill 21. The petitioner insists that school premises are not of such a unique or extraordinary character as to meet the test of “special use” property. The petitioner says, “what is so unique or extraordinary about a school building or schoolyard that it must inextricably be placed in a category apart from the normal or ordinary use of property?”

In Sanitary Dist. of Chicago v. Pittsburg, F. W. & C. R Co., 216 Ill 575, 75 NE 248, which involved the taking of a portion of the passenger and freight station grounds of a railroad, the court held that such property had no market value as it was devoted to a special and particular use and that it was proper for the railroad to show the value of the property for such special use. The court stated:

It is a matter of common knowledge that such property as this and devoted to such a use is not bought and sold in the market or subject to sale in that way, and that such property has no market value in a legal sense. The property being devoted to a special and particular use, the general market value of other property was not a criterion for ascertaining compensation, although it might throw some light on the actual value. P 584.

In the matter of valuation of property, our Supreme Court has held that market value is not the basis for valuation when special use property is involved. See Lake Shore & M. S. R Co. v. Chicago & W. I. R Co., 100 Ill 21; Chicago, B. & Q. Ry. Co. v. Naperville, 166 Ill 87, 47 NE 734; and Chicago & N. W. Ry. Co. v. Chicago & E. R. Co., 112 Ill 589. We have found no case nor has any case been cited to us where the Supreme Court has considered the matter of the valuation of school property being condemned.

We disagree with the petitioner that a school and playground facility for the children is not a unique and extraordinary use of property so as not to be placed apart from the normal or ordinary use of property. There is no dispute that the defendant is required to replace the use of the condemned portion of its property by acquiring another site for the same special use. Just compensation requires the full and equivalent value of the condemned property as it is used entirely for school and playground purposes. Both the condemnation to take the involved property for the west leg of the Dan Ryan Expressway and the use of property for school purposes serve vital public needs. In United States v. Certain Land in Borough of Brooklyn, 346 F2d 690, 694, the court held that the trial court’s refusal to consider the cost to the city of providing necessary substitute playground facilities to be erroneous, and went on to say that:

. . . strict application of the market value rule of compensation will often be abandoned when the nature of the property or its uses produce a wide discrepancy between the value of the property to the owner and the price at which it could be sold to anyone else.

The petitioner further contends that assuming arguendo, that school premises must, as a matter of law, be regarded as “special use” property in condemnation cases, the trial court erred in allowing defendant’s testimony relating to “intrinsic value” or cost of substitution of other land. Further that the instruction to the jury by the trial court embracing the concept of defendant’s substitution theory and eliminating the petitioner’s cost less depreciation, constituted prejudice to petitioner’s cause by misleading the jury as to the proper method of arriving at just compensation for the condemned portion. It is argued that even if school premises are regarded as “special use” property the testimony received in evidence of estimated cost of improving an adjacent land to make it physically identical with the portion taken is not competent evidence. It is stressed that there was a gross deviation from the normal valuation principles because the defendant’s evidence was solely directed to the estimated cost of acquisition. The petitioner says, “the adoption of a substitution theory by the defendant to determine just compensation for a partial taking when the remaining property is not shown to be damaged or unusable is a novel concept unknown to Illinois.”

While it is true that Fries, petitioner’s expert witness, testified on direct that he appraised the property for its highest and best use as school property, he nevertheless testified on cross-examination, when asked whether he based his valuation upon its value to the Board of Education or some other element, that “I based it on the basis of the fair market value between a willing buyer and a willing seller, which would be the same as to the Board.” We conclude that the trial judge on defendant’s motion properly struck the testimony of this witness on valuation.

In State v. Waco Independent School Dist. (Tex), 364 SW2d 263, 268 (1963), the court upheld the ruling by the trial judge, as we do here, that the condemned school property as a matter of law is not to be valued on a market value basis, but by the cost of supplying the necessary substitute facilities for those taken to restore the same facilities for school purposes needed to fill the requirement of the school children, and said:

There is a fundamental distinction between obligation resting on the agency condemning public property, and that of condemning private property. This distinction lies in the obligation thereby imposed on the condemnee. For example, a private party owes no duty to the public to continue its operation either at its original location or elsewhere.
It can move, it can stay, or it can liquidate as it alone sees fit. Not so with a school system charged with a legal obligation to the public.

We are of the opinion that the trial judge was correct in holding that the defendant was entitled to acquire substitute facilities and that the cost of adjacent land to replace the property taken was properly admitted into evidence. See United States v. Board of Education, 253 F2d 760. In City of Chicago v. Farwell, 286 Ill 415, 121 NE 795, the court stated that market value basis is not the legal standard for property taken when applied to a special use such as a church, college, cemetery, clubhouse or terminal of a railroad. We have concluded, as did the trial judge, that this case presented a special situation which precluded market value testimony.

The petitioner also complains that it was prejudicial error for the defendant’s witnesses not to base their opinions on the so called “unit rule.” It is argued that in evaluating the measure of just compensation where, as here, there is a partial taking, the testimony regarding valuation is governed by the “unit rule,” that is, the total value of the land and building appraisals considered together and not separately. The unit rule is applied where market value is the test of valuation and where the part taken has greater or less market value as part of the whole. Here market value is not the test of valuation and therefore the unit rule is not applicable. Also no claim was made by the Board that the remainder had been damaged.

Other contentions were made and considered, but in the view we take, we do not consider it necessary to discuss them. Most of the objections stem from the initial ruling of the trial judge which was previously discussed in this opinion. We must note that the testimony on valuation by James Felton, the petitioner’s expert witness, was not stricken and was considered by the jury. This is shown by the jury’s verdict which is considerably less than the acquisition figure of McKeag and well within the range of all the appraisals and the judgment rendered thereon.

The defendant moved to dismiss the appeal for certain reasons and the motion was taken with the case. In view of the fact that we have decided the matter on the merits we deem it unnecessary to pass on the motion.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


text:
    Robert Tatge, Plaintiff-Appellee, v. Henry J. Hyde, as Administrator of the Estate of Louise Posey, Deceased, Defendant-Appellant.
    Gen. No. 51,460.
    First District, First Division.
    June 12, 1967.

      Jerome M. Brooks and Gilbert Gordon, of Chicago (Gilbert Gordon, of counsel), for appellant.
    John J. Treacy, of Chicago, for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action, in which the defendant administrator appeals from a $17,500 judgment on the theory that plaintiff’s action was barred by the Limitations statute in effect at the time the action was commenced against the defendant administrator. Plaintiff cross-appeals from a remittitur of damages from $28,000 to $17,500.

On February 25, 1958, plaintiff was injured in a collision between his car and a car driven by Louise Posey. On December 31, 1959, plaintiff filed suit against Louise Posey, and on February 1, 1960, summons was returned “not found,” with the notation that the defendant had died (November 20, 1959). Subsequently, on April 10, 1961, plaintiff filed an amended complaint naming the defendant administrator as a party for the first time. In a jury trial, plaintiff was awarded damages of $28,-000. Plaintiff agreed to a remittitur of $10,500, and judgment for $17,500 was entered against defendant.

As the Statute of Limitations in effect at the time the cause of action accrued was modified by subsequent amendment, the sole issue is whether the modified limitations period is controlling, or whether the statute in force when the cause of action accrued prevails. The Limitations statute in effect on the date of the occurrence (February 25, 1958) provided:

“20. Death — further time for action by or against representatives . . .
“If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time, and within nine months after the issuing of letters testamentary or of administration.” As amended by act approved July 15, 1941, L 1941, Vol I, p 851.

The Limitations statute in effect on the date the action was commenced against the defendant administrator (April 10,1961) provided:

“20. Death — further time for action by or against representatives . . .
“If a person against whom an action may be brought dies before the exipiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators before the expiration of that time or within 9 months from his death, whichever date is the later.” As amended by act approved July 15,1959, Vol I, p 1159.

The defendant administrator argues that the 1959 amendment to the Limitations statute, which was in effect on April 10, 1961, when the action was commenced against the defendant administrator, is procedural in nature and should be retroactively applied to cover causes of action existing prior to its enactment. Therefore, pursuant to the terms of the 1959 amendment to the Limitations statute, plaintiff had nine months from November 20, 1959, within which to name Mrs. Posey’s administrator as a party defendant, and plaintiff’s failure to comply with the statutory provision bars the action.

In support of his contention, the defendant administrator cites Orlicki v. McCarthy, 4 Ill2d 342, 122 NE2d 513 (1954). Orlicki was an action under the Illinois Dram Shop statute for the death of plaintiff’s decedent. The issue in that case was whether the time limitation amendment applied to causes of action arising prior to the enactment of the amendment. In Orlicki, the Supreme Court reviewed the different approaches to time limitation amendments in their application to causes of action arising prior to the enactment of the amendments, and the court said (p 345) :

“The problem of the retroactive application of amendments is not novel in Illinois case law, and it is one upon which the jurists are not in agreement, either in their conclusions or rationale, not only in Illinois, but also in other jurisdictions .... Some Illinois decisions have considered the issue in terms of vested or nonvested rights . . . ; others analyze it in terms of jurisdiction . . . ; others have considered whether the provision was substantive or procedural . . . ; other courts have relied upon the intention of the legislature . . . ; and there are also decisions predicated on the statutes of construc- ' tion . . . ; or upon a combination of these legal concepts and rules.

The court noted that the doctrine that legislation must be prospective in character was incorporated as a statute relating to construction (Ill Rev Stats 1953, c 131, § 4) but said (p 346):

“The Illinois courts have limited the application of that statute by holding that the only rights within the protection of section 4 are ‘vested rights.’ . . . Thus, it has been held that where a statute giving a special remedy is unconditionally repealed without a saving clause, all pending suits predicated thereon will terminate as of the date of the repeal, since there is no vested right in any statutory remedy.”

On page 347, the court said:

“However, the concept of ‘vested right’ is fraught with vagaries that defy precise definition. . . . The concept has been referred to as ‘something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enjoyment of the demand, or a legal exception from a demand made by another.’ . . . ‘There can be no vested right in the claim for damages in a tort not connected with or growing out of a contractual relationship until judgment is rendered.’ ”

In Orlicki, the court concluded (p 354):

“On the basis of the foregoing authorities, it is our judgment that the time limitation amendment should be retroactively applied, on the ground that the legislature so intended, and that it is procedural in character. We prefer to predicate our determination on these grounds, rather than by analogy to the Carlin case, which held the time requirements to be a ‘condition of liability,’ and which would support the same result, since our rationale has broader support in the case law, will effect greater harmony and fewer tenuous refinements among the decisions, and will not contravene either the terms or the spirit of the Saving Statute, which exempts procedural provisions.”

Plaintiff contends that the Orlicki case dealt expressly and solely with the specific limitations provisions which were made a part of the Illinois Dram Shop Act, a statutory remedy; it did not purport to deal with or construe the general Statute of Limitations (Ill Rev Stats, c 83), and that the Supreme Court noted they were dealing with a right of action which was not a vested right but a creature of statute. Plaintiff argues that in the present case “we are dealing with a cause of action arising at common law which gave rise to a vested right in the plaintiff when it occurred. The Orlicki decision is explicit in distinguishing such rights insofar as they are not to be barred or diminished by retroactive legislation.”

Plaintiff’s authorities include Hogan v. Bleeker, 29 Ill 2d 181, 193 NE2d 844 (1963), which was an action to foreclose special assessment liens ten and one-half years after the date of sale and four years after a 1957 statutory amendment, which required the bringing of suit to foreclose a special assessment lien within five years from the date of sale and assignment. The issue was whether the 1957 amendment was to be given retroactive effect so as to bar the action. In that case the court said (P 184):

“As a general rule, however, statutes will not be construed retroactively unless it clearly appears such was the legislative intention. . . . But this general rule is not ordinarily applied to statutes which relate merely to remedies and forms of procedure and which do not affect substantive rights, .... Where a statute giving a special remedy is amended without a savings clause in favor of pending actions, all actions affected must be decided in conformity to the law then existing, both in the trial and Appellate Courts, without regard to whether the actions accrued before or after such change, or whether action had been previously instituted. . . . We have held that the legislature has the power to withdraw jurisdiction of the courts over statutory causes of action and the exercise of that power leaves all such causes of action and pending suits where the repeal finds them. . . . This is true despite the Statutory Construction Act (Ill Rev Stats 1961, chap 131, par 4) which has been held not applicable to repeals.”

In Hogan v. Bleeker, the court concluded (p 190):

“[The special assessment liens], even though statutory in origin, are ‘vested’ property rights within the meaning of the aforementioned rule set forth in the Lindheimer case and are the appropriate subject of constitutional protection. They cannot, therefore, be destroyed by applying the statute retroactively. . . . The limitation period contained in the 1957 amendment was not, in our opinion, intended to be retroactive, and did not bar the foreclosure of the plaintiff’s liens.”

In United States Steel Credit Union v. Knight, 32 Ill 2d 138, 204 NE2d 4 (1965), in discussing retroactivity of a statutory amendment, the court said (p 142):

“Retroactive legislation is not favored, and as a general rule statutes are construed to operate prospectively unless the legislative intent that they be given retroactive operation clearly appears from the express language of the acts, or by necessary or unavoidable implication. . . . Conversely, if the language of a statute requires retroactive application, it is the duty of the courts to so apply it. . . . Based upon these principles, it is the position of the plaintiffs that to construe the amendment as authorizing the collection of 1963 supervision fees for the period prior to July 16, 1963, the effective date of the amendment, is to give it retroactive effect without a clear or explicit manifestation by the legislature that such a result was intended.”

In Carlin v. Peerless Gas Light Co., 283 Ill 142, 119 NE 66 (1918), a wrongful death action brought under the Injuries Act, it is said (p 144):

“If the time fixed within which an action under the Injuries act is to be considered as a statute of limitations the amended act would not apply, for such a statute will be given a prospective effect unless there appears a clear intention to the contrary, and then only where reasonable time is allowed in which to enforce existing rights.”

After examining the foregoing and other authorities, we are not persuaded that the vested right approach should be used here. As we are dealing with a common-law right and not a statutory right, we believe the 1959 amendment should be construed so as to operate prospectively unless it clearly appears from the express language of the amendment that the legislative intent was to give the amendment retroactive operation. As we examine the amendment, we find nothing to indicate an intention on the part of the legislature that the amendment was to be given a retroactive effect.

Applying the pronouncements made in the Carlin case, we believe that although it appears in the instant case that a reasonable time in fact was left at the time of the effective date of the amendment to enforce plaintiff’s cause of action, nevertheless a retroactive construction would include cases in which a reasonable time might not have existed to enforce an existing cause of action. It is reasonable to assume that if retroactivity was intended by the legislature, an effective date would have been included in the amendment. Therefore, we hold that the 1959 amendment was prospective only in its effect. This view is buttressed by the fact that the legislature in 1961 again amended the Limitations statute so as to give effect to its original (1941) provisions.

For the reasons given, and as we find no merit in plaintiff’s cross-appeal that the order of remittitur should be set aside, the judgment in favor of plaintiff for the sum of $17,500 is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.