author: MR. JUSTICE SULLIVAN

text:
    Mary Koenig, Plaintiff-Appellee, v. 399 Corporation, a Corporation, Defendant-Appellant. 399 Corporation, a Corporation, Third Party Plaintiff-Appellant, v. Reliance Elevator Manufacturing Company, a Corporation, Third Party Defendant-Appellee.
    Gen. No. 52,137.
    First District, Third Division.
    June 13, 1968.
    Rehearing denied July 9,1968.

      Richard C. Bleloch and Robert A. Wiacek, of Chicago, for appellant.
    Van Emden, Busch and Van Emden, of Chicago (Alfred B. Busch and George J. Van Emden, of counsel), and Ernest C. Meloche, Beutler,.Fisher and Blake, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiff, Mary Koenig, filed suit for personal injuries against 399 Corporation and obtained a judgment based upon a jury verdict for $6,200. From this judgment 399 Corporation has appealed.

It will be necessary to set forth pertinent parts of the pleadings in order to explain the issues presented.

Mary Koenig in her statement of claim alleged that she was a business invitee as an employee, agent and servant of Dr. White, a tenant in defendant 399 Corporation’s building located at 399 West Fullerton Parkway, Chicago, Illinois; that plaintiff, while in the exercise of due care, was injured when an elevator in which she was riding fell as a result of the negligence of an employee of the defendant 399 Corporation when said elevator fell or rapidly descended, striking the bottom of the shaft with great force.

Defendant 399 Corporation on May 20, 1960, filed an answer in which it admitted that it maintained, operated and controlled the automatic passenger elevator in question and denied that plaintiff was injured and that defendant was guilty of negligence. More than six years later, on November 4, 1966, by leave of court, defendant filed its amended answer and in it denied that it maintained, operated or controlled any automatic passenger or freight elevator in its building. Defendant further denied that plaintiff was a passenger in its elevator, but admitted, however, that plaintiff was on the elevator. The defendant also alleged in its answer that the elevator stopped because the plaintiff improperly operated the button therein or failed to close the door securely, breaking the circuit therein. The amended answer further alleged that at the time of plaintiff’s injuries the elevator was maintained, repaired and serviced by Reliance Elevator Manufacturing Company, and that plaintiff controlled the elevator in which she was riding and that she was contributorily negligent.

Thereafter, defendant filed a third-party complaint against Reliance Elevator Manufacturing Company in which the third-party plaintiff alleged that it had entered into a written contract with Reliance Elevator Manufacturing Company, a corporation, third-party defendant, whereby the third-party defendant impliedly stated by written contract that it agreed to maintain, service and repair continuously an elevator of the third-party plaintiff on its premises at 399 West Fullerton Parkway, Chicago, Illinois; that notwithstanding its duty to repair the passenger and freight elevators at 399 West Fullerton Parkway, Chicago, Illinois, the third-party defendant failed to do so and did one or more of eight negligent acts set forth in the third-party complaint. This paragraph of the third-party complaint then asserts the following:

“That because of one or more or all of the aforesaid negligent acts or omissions, the elevator did operate in a dangerous, defective manner so as to cause one Mary Koenig, who was operating said elevator, to sustain personal injuries as alleged in her Complaint.”

When the case came before the trial judge after the jury was impaneled but out of its presence, the plaintiff moved for the entry of a judgment on the pleadings as to liability in her favor. Argument took place in the judge’s chambers. The judge allowed the plaintiff’s motion and defendant moved to amend its third-party complaint on its face by the insertion of the word “if” before certain allegations in paragraphs 7 and 8 of the third-party complaint. Paragraph 7 directly charged the third-party defendant with acts of negligence and paragraph 8 charged that due to one or more of the negligent acts or omissions Mary Koenig, the plaintiff, was injured as alleged in her complaint. The amendment sought by the third-party plaintiff to that complaint would have made the allegations of paragraphs 7 and 8 contingent upon the plaintiff having proved negligence of the defendant. In other words, the third-party plaintiff in its original third-party complaint had admitted that the injuries to plaintiff were caused by one or more of the negligent acts of the third-party defendant. Since this constituted an admission by the defendant (third-party plaintiff) that Mary Koenig was injured as alleged in her complaint, third-party plaintiff sought to amend its complaint to avoid that implication. This amendment was allowed and the third-party plaintiff merely attached to the complaint a part of a sheet of a court reporter’s transcript setting forth the nature of the amendments sought and a conversation between Mr. Wiacek and the court.

The following points have been raised by the defendant (third-party plaintiff) in this appeal: (1) the answer denied the plaintiff was in the exercise of due care, therefore it was improper for the court to enter judgment on the pleadings as to liability; (2) plaintiff must plead and prove freedom from contributory negligence, and (3) it was error to permit a doctor to testify that the negligent act had caused the injury.

The defendant argues as to the first point that since the answer of the defendant denied that the plaintiff was in the exercise of due care, the court erred in directing a verdict as to liability in favor of the plaintiff. In support of this the defendant cites Bresler Ice Cream Co. v. The Millionaires Club, Inc., 71 Ill App2d 342, 218 NE2d 891, wherein the court stated at page 344:

“While any party may seasonably move for judgment on the pleadings (Ill Rev Stats 1963, c 110, sec 45(5)) such judgment in favor of the plaintiff is improperly granted where the answer to a complaint sets forth any legal defense to the action. Thillens, Inc. v. Hodge, 2 Ill2d 45, 116 NE2d 886.”

Other cases to the same effect are cited by the defendant. Defendant, however, by its amended answer explained the so-called acts of negligence or lack of due care by stating that the elevator stopped “because the plaintiff improperly operated the button therein or failed to close the door securely breaking the circuit therein.” We must bear in mind that the defendant was in the position of a common carrier and was required to exercise the highest degree of care for persons riding in its elevator. It further had the duty of furnishing cars which were safe and were equipped with protective appliances. If the injury was caused by the plaintiff improperly operating a button on the elevator, or because she failed to close the door securely breaking the circuit therein, the defendant would necessarily have to be held negligent for controlling and supplying an automatic elevator which could be caused to first stop and then to drop by an improper operation of a button. Likewise, the defendant would have been guilty of negligence in owning and supplying an automatic elevator which would first stop and then drop if the door was not closed securely. Neither of these acts, if true, would constitute lack of due care on the part of plaintiff who was an ordinary passenger in an elevator which was admittedly maintained, operated and controlled by the defendant in its original answer. In either of these cases the plaintiff could not have been charged with contributory negligence.

In Cobb v. Marshall Field & Co., 22 Ill App2d 143,153-154,159 NE2d 520, the court said:

“As a common carrier the defendant was required to exercise the highest degree of care for the safety of the persons riding in its elevators and had the duty of furnishing cars which were safe and which were equipped with protective appliances. . . . The fact that someone else had taken over the use and operation of the elevator after the regular store hours did not relieve the defendant of this responsibility. The usual requirement that the accident-causing instrumentality must be under the exclusive control of the defendant need not mean actual physical control at the time of the accident, if the instrumentality is one which it is the defendant’s responsibility to maintain at all times and which responsibility cannot be delegated by consent, agreement or usage.”

There can be little doubt that the defendant 399 Corporation was primarily liable although its negligence could have been passive. Furthermore, the defendant in its third-party complaint admitted that “the elevator did operate in a dangerous, defective manner so as to cause one Mary Koenig, who was operating said elevator, to sustain personal injuries as alleged in her complaint.” By this allegation in the third-party complaint the defendant, third-party plaintiff, admitted that the proximate cause of the injuries sustained by the plaintiff was the dangerous and defective condition of the elevator. The defendant did not and could not relieve itself of responsibility to the plaintiff by charging that it was the duty of the third-party defendant to maintain the elevator. The defendant argues that it had obtained leave to amend its third-party complaint and by its amendment changed that complaint to read in effect that if the plaintiff had sustained injuries as alleged in her complaint, the injuries were due to the negligent acts of the third-party defendant in failing to maintain the elevator properly. However, the record discloses that the amendment to the third-party complaint was not made until after the ruling by the court on the motion of the plaintiff to direct a finding in behalf of the plaintiff on the question of liability alone. The transcript of proceedings shows the following:

“Mr. Busch: I have prepared a formal motion.

“The Court: Because the Court previously ruled on the motion and because after that ruling the motion to amend was made, further discussion to be had tomorrow.

“Mr. Meloche: Do I understand that the Court has already ruled on the motion for judgment on the pleadings as to liability?

“The Court: Yes.

“Mr. Meloche: Now entertaining a motion to amend the third party complaint.

“The Court: He asked to amend, and, as you will recall, the Court remarked that even though I adjourned at ten minutes after eleven this morning until 2:00 o’clock to give him an opportunity to do whatever amending he wished and to bring in whatsoever law that he desired, that it was not until after the Court had made its ruling on the motion for a directed finding as to the question of liability that Mr. Wiacek then asked to amend his pleading, so the Court, in its effort to be fair, asked the official court reporter to type up the amendment, because Mr. Busch stated that he (sic) got lost in the shuffle of it.”

The trial court properly allowed the motion of plaintiff to direct the jury on the question of defendant’s liability.

The second point raised by the defendant is that “the plaintiff must plead and prove freedom from contributory negligence.” The answer of the defendant put the question of due care and contributory negligence in issue.

Defendant argues that because the court heard no evidence in this case it could not have entered a judgment on the pleadings as to liability.

We have explained earlier in this opinion that the acts alleged in the amended answer of the defendant, in support of its allegation of lack of due care on the part of the plaintiff, would not relieve the defendant of liability in this case. We have pointed out heretofore that if the injuries were caused by plaintiff’s improper operation of the button in the elevator, or her failure to close the door securely breaking the circuit therein, that would not constitute contributory negligence or lack of due care on her part in a case where the defendant is a common carrier and owes the highest degree of care for the safety of persons riding in its automatic passenger elevator. Defendant further had the duty of furnishing cars which were safe and which were equipped with protective appliances. Citing again from Cobb v. Marshall Field & Co., supra, on page 153 the court said:

“We believe the necessary elements for a res ipsa loquitur case were established by the plaintiffs’ evidence. The elevator was under the management of the defendant and certainly the occurrence was one which does not happen in the ordinary course of events. Elevators which are correctly constructed, kept in repair and adequately inspected normally do not fall. When one does there is a reasonable inference of negligence. Owners of elevators which carry passengers are common carriers. Several Illinois cases hold, apart from res ipsa loquitur, that if a passenger is injured while being transported by a common carrier the happening of such an accident is sufficient to justify a verdict for the passenger and that the burden then shifts to the defendant. Chicago City Ry. Co. v. Eick, 111 Ill App 452; New York C. & St. L. R. Co. v. Blumenthal, 160 Ill 40; Springer v. Ford, 189 Ill 430; Hefferman v. Mandel Bros. 297 Ill App 272; Carson v. Weston Hotel Corp., 351 Ill App 523.”

Under the rule set forth in Cobb v. Marshall Field & Co., supra, the falling of an elevator sufficiently establishes negligence on the part of the defendant, and freedom from contributory negligence was established by judicial admissions in the original answer of defendant and by its third party complaint.

Defendant in its third point states that it was error to permit the doctor to testify that the act of negligence in this case had caused the injury since that was a matter in dispute and was a question of fact for the jury to decide. The plaintiff’s doctor had been asked if he had obtained a history from the patient. In his answer he said that he had; that the patient was 58 years old, white female, righthanded, suffered injury of her lumbosacral spine and the left leg on May 5, 1958 while working at the Fullerton Hotel. He further testified that the plaintiff suffered injury to the lumbosacral spine and left leg at the Fullerton Hotel, Chicago, Illinois, when the elevator broke down and fell two floors to the basement. The doctor in this case was the physician the plaintiff had consulted for medical treatment. While it is true that statements of the cause of injury were originally excluded, the newer rule seems to be that a patient seeking medical treatment would be truthful to his doctor so as to obtain proper care. In Jensen v. Elgin, J. & E. Ry. Co., 24 Ill2d 383, 388,182 NE2d 211, the court said:

“Statements of pain and symptoms are admissible as an exception to the hearsay rule, if made by a patient to a physician for purposes of diagnosis and treatment, on the theory that the desire for proper treatment outweighs any motive to falsify. (Greinke v. Chicago City Railway Co. 234 Ill 564.) Since the cause of an injury may be a factor in diagnosis, statements of the cause of any injury or condition have been held admissible because they also fall within the guarantee of truthfulness. (Shell Oil Co. v. Industrial Com. 2 Ill2d 590.) Evidence of statements and physical demonstration capable of simulation are not admissible, however, if made to a physician examining for the purpose of testifying, and he is limited to testifying to purely objective conditions. Greinke v. Chicago City Railway Co. 234 Ill 564; Shaughnessy v. Holt, 236 Ill 485.”

Also see Cleary, Handbook of Illinois Evidence, 2nd Ed, § 17.25, p 292.

The defendant has cited Zbinden v. DeMoulin Bros. & Co., 245 Ill App 248, wherein the court held it was error to permit the doctor to testify that the negligent act caused the injury.

Defendant also argues that the doctor failed to preface his remarks regarding the relationship of the occurrence to plaintiff’s injury by, in effect, using the words “might or could have caused.”

In Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582, the court cited with approval the following language in Chicago Union Traction Co. v. Roberts, 229 Ill 481, 484, 82 NE 401:

“It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event, the testimony was merely the opinion of the witness, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form.”

The defendant, among its issues presented for review, set forth the following: “Whether the Court erred in entering a nonsuit with prejudice on the Defendant and 3rd Party Plaintiff’s Complaint.” That contention is not raised under its Points and Authorities, nor has it been argued by the defendant. In Warner v. Gosnell, 8 Ill2d 24, 29,132 NE2d 526, the court said:

“Plaintiff sets forth seven errors relied upon for reversal but only four are argued. As this court has consistently held in numerous cases, assignments of error not argued are waived.”

The foregoing rule is so generally accepted that it needs no further citation of cases or any discussion by us in this opinion. That issue has been waived by the defendant (third-party plaintiff.)

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: CULBERTSON, J.

license: Public Domain

text:
    Rose E. Flatow, Plaintiff-Appellee, v. Amalgamated Trust and Savings Bank, Defendant-Appellant.
    Gen. No. 52,528.
    First District.
    June 13, 1968.

      Peter R. Monahan, Levy and Erens, of Chicago, for appellant.
    William W. Hartman, of Chicago, for appellee.
   CULBERTSON, J.

Defendant, Amalgamated Trust and Savings Bank, here appeals from a judgment for $2,917.73 entered by the circuit court of Cook County in favor of Rose E. Flatow, plaintiff, in the latter’s suit to recover funds deposited in her name in a savings account at the defendant bank.

The complaint filed in the cause alleged, in substance, that plaintiff had at various times deposited funds in a savings account at the bank; that the account, with accrued interest, totalled $2,676.56; and that despite her demands, the bank refused to return the funds or any portion thereof to her. An answer for defendant admitted the foregoing, but denied that plaintiff was entitled to the return of any funds for the following reasons: (a) That plaintiff had executed a guarantee of a loan made by defendant A. A. Flatow & Co. (a sole proprietorship operated by plaintiff’s husband, Alfred A. Flatow), in the amount of $2,600; (b) that at the time of the guarantee the passbook for plaintiff’s savings account was submitted to defendant as additional security for the loan to A. A. Flatow & Co.; (c) that upon the death of Alfred A. Flatow, defendant, in accordance with the terms of the note and the guarantee of plaintiff, charged plaintiff’s savings account for $2,637.55 in payment of the note; and (d) that plaintiff was in default on another note executed to defendant on May 9, 1966. Incorporated in the answer was a counterclaim of defendant to collect the note of May 9, 1966, in the amount of $372. In reply to the answer, plaintiff denied each of its allegations; additionally, she filed an answer denying the allegations of the counterclaim.

At the bench trial which followed, the passbook for the savings account, made out solely in plaintiff’s name, was produced by defendant and was introduced into evidence by the plaintiff. Thereafter, plaintiff took the witness stand and gave testimony which established a prima facie case. In addition, she expressly denied that she had ever guaranteed a loan or delivered the passbook as security therefor, and stated that she had no knowledge of any loans made by defendant to her husband prior to the latter’s death. The defendant introduced no evidence, oral or written, and thus failed in its burden of proving the matters of avoidance raised in its answer (see: 31A CJS, Evidence, § 104, p 178; Bell v. School District No. 84, 407 Ill 406, 416, 95 NE2d 496), but contented itself with cross-examining the plaintiff. On this appeal defendant makes two arguments: First, that “Exclusion of evidence of husband’s representations to defendant is reversible error,” and, second, that the defendant is not liable under the term of its contract with its depositors.

We find nothing in the record to support the claim that the trial court improperly “excluded” evidence of the husband’s representations to defendant. Indeed, there is neither pleading nor proof that representations were made or that defendant was influenced or misled by them. What does appear is that the trial court, while putting no bounds on inquiry into the transaction at issue, limited cross-examination of the plaintiff which defendant asserts was intended to inquire into the extent of the husband’s control over the plaintiff’s earnings and other property. From this, and from the authorities cited, we gather that defendant seeks to pursue a theory that plaintiff permitted her husband to deal with her property as if it was his own and that she is therefore estopped from claiming it as against a creditor of her husband. (E. g., Moline State Sav. Bank v. Liggett, 106 Ill App 223; Sohio Corp. v. Gudder, 375 Ill 622, 626, 32 NE2d 148.) Estoppel, however, is a defense which is waived if not pleaded (Collins v. Collins, 14 Ill2d 178, 151 NE2d 813; Pinkley v. Allied Oil Corp. of Illinois, 325 Ill App 326, 60 NE2d 106), and it was not pleaded in this case. Consequently, we conclude that the trial court committed no error in refusing to allow cross-examination now represented as being designed to establish such a defense.

The passbook for the savings account, which was opened in 1947, stated in large print: “If You Lose Or Mislay This Book, Give Immediate Notice To The Bank In Writing,” and also had a printed provision titled “Payments to Holders of Passbooks” which provided: “The Bank shall not be liable for payments made to any person who shall produce the deposit book of the depositor, unless notice shall have, previous to such payment, been given to the Bank by or in behalf of the depositor that said bank book has been lost, mislaid, stolen or otherwise passed from the possession of the true owner thereof.” Other evidence in the record discloses that there had been periodic deposits and withdrawals until December, 1954, and that the account was thereafter inactive until June, 1966, when the defendant charged it with the amount of the A. A. Flatow & Company note. Plaintiff testified that she had not touched the account because it was her emergency fund for illness; that she customarily kept the passbook in a locked box she concealed in her closet; that the key to the box was in her dresser; and that she first became aware that the passbook was missing after her husband’s death on June 5, 1966. Based upon these circumstances, defendant argues that plaintiff was negligent in failing to give notification that the passbook was missing, that her negligence permitted the bank to reasonably rely upon her husband’s representations that he had the right to pledge the account, and that, under the terms of the contract as stated in the passbook, the bank had the authority to make payment to anyone having possession of the book.

It has long been held that a defense not interposed in an answer and not presented to the trial court cannot be urged on appeal (Bittner v. Field, 354 Ill 215, 220, 188 NE 342; Waller v. Hildebrecht, 295 Ill 116, 121 122, 128 NE 807), and it is likewise axiomatic that the theory upon which a case is tried cannot be changed upon review. (Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105, 109, 185 NE2d 97; Blanchard v. Lewis, 414 Ill 515, 521, 112 NE2d 167.) Based upon these principles, it is evident from the record that defendant is in no position to urge its negligence-contract theory in this court. Its answer does not charge plaintiff with negligence or a violation of the contract, and neither does it plead an avoidance of liability on the basis of defendant’s purported contract rights. Rather, the tenor of the answer is that plaintiff voluntarily pledged the passbook as additional security for the loan made to her husband’s company, and that her savings account was charged with the loan in accordance with the guarantee of the plaintiff. We are constrained to remark also that defendant offered no proof which would sustain its new theory. As its own authority shows, a bank itself must exercise reasonable care and not be negligent when it makes payment to a person presenting a passbook (E. g., Felman v. Schiff, 186 Ill App 67), and no attempt was made to prove such matters in this case.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Hudson, Defendant-Appellant.
    Gen. No. 51,197.
    First District, Second Division.
    June 18, 1968.
    Rehearing denied September 9,1968.

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

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis J. Carey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Ronald Hudson, was indicted for the unlawful sale of narcotic drugs. He was found guilty of the charge by a jury and sentenced by the court to a term of 20 to 40 years in the Illinois State Penitentiary. He appeals, contending that it was prejudicial error for the court to deny his motion for a continuance during the trial, and that the sentence imposed was too severe and should be reduced.

: By prearrangement, Herman Phillips, a police informer, met Officer Richard McKelvey of the Narcotics Bureau of the Chicago Police Department and certain other police officers on September 16, 1964, at Sangamon and Hubbard Streets in the City of Chicago. Phillips testified that he had used narcotics at one time but was not now a user. He also testified that he had purchased marijuana from defendant prior to September 16, 1964. Phillips and his automobile were searched by the policemen. He then was given $15 worth of marked money in ten one-dollar bills and one five-dollar bill. Under surveillance of the police, Phillips proceeded to the corner of Chicago Avenue and May Street where he waited outside of the Paradise tavern for about 45 minutes. Defendant then approached Phillips and the latter arranged to purchase $15 worth of narcotics. Defendant left but returned in about 10 minutes and gave Phillips two packages which later were found to have contained heroin. As defendant walked into the tavern, Phillips walked over to where Officer McKelvey was standing and handed him the two packages he had purchased. After a field test indicated the packages contained heroin, two officers entered the tavern, but were unable to find defendant. Defendant was arrested a few minutes later by another officer stationed outside of the tavern. A search revealed that defendant did not have any of the marked money on his person. Officer Kurowski returned to the tavern and found five of the premarked dollar bills in the cash register.

Officer McKelvey testified on cross-examination that he had stopped defendant in August 1964 for traffic violations. The officer also testified that he then had found a hypodermic needle and syringe in the back seat of defendant’s car at that time, and that the defendant had run over his foot in trying to escape. The officer further testified that he placed charges of aggravated battery, possession of a hypodermic needle and traffic violations arising out of that arrest, but that these charges had been dismissed in court.

Defendant testified that he had a conversation with Phillips outside of the tavern on September 16, but denied selling any narcotics. Defendant also testified that he was 22 years of age, that he was employed and that he was not a narcotics addict.

Defendant had been indicted on October 28, 1964. He was arraigned and his counsel filed his appearance on November 4, 1964. Trial commenced on March 16, 1965. During this period defendant was free on bond.

Defendant urges that the court committed reversible error in denying a continuance of the trial on motion of defendant’s counsel. During cross-examination, defendant first testified that Phillips did not enter the tavern after their conversation, then reconsidered and stated that Phillips had entered the tavern and was standing with a group of about six people. Defendant named three of the group as Warren Hayes, Gene Bellows and Robert Hayes. He stated that none of the three was in court. After defendant had completed his testimony, his attorney requested that the trial be recessed and he be granted a continuance until the next day so “that he may make every effort to bring into court these parties who were on the premises of the Paradise tavern” to testify as to whether or not Phillips went into the tavern after his conversation with defendant. The court denied the request noting that orderly procedure necessitated proceeding with the trial, and defendant then rested.

The matter of granting a continuance is within the sound discretion of the trial judge, and it is only where the record shows an abuse of such discretion that the conviction will be reversed. People v. Harper, 31 Ill2d 51, 198 NE2d 825 (1964); People v. Clark, 9 Ill2d 46,137 NE2d 54 (1956).

There was no abuse of that discretion in the instant case. Phillips had testified that he did not enter the tavern after the transaction with defendant. Officers McKelvey and Kurowski testified that after the transaction between Phillips and defendant took place, they watched defendant enter the tavern while Phillips walked across the street to where Officer McKelvey was conducting his surveillance. The testimony of these three witnesses was sufficient to establish the fact that Phillips did not enter the tavern. The testimony of Phillips, admittedly a former user of drugs, must be weighed carefully, but it is not necessary that his testimony must be disbelieved. People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282 (1964). Further, Phillips’ statement that he did not enter the tavern was corroborated by the testimony of two police officers. In addition, counsel for defendant made no showing that there was any reasonable expectation or prospect of obtaining the presence of the absent witnesses. Nor was there any showing that there testimony would be of any benefit to defendant. The only request made of the court was that a continuance be granted to look for three witnesses who might give testimony about a fact which already had been established by three witnesses and contradicted by defendant only after reconsideration. Moreover, defendant and his privately retained counsel had more than four months to prepare for the trial. During all this time, defendant was free on bail. Defendant had the duty of making a reasonable attempt to secure witnesses and if he failed to do so the request for continuance properly was denied. People v. O’Hara, 332 Ill 436, 163 NE 804 (1928).

The cases cited by defendant in support of his contention that the trial court committed prejudicial error in denying his motion for a continuance clearly are distinguishable from the case at bar. In People v. Bopp, 279 Ill 184, 116 NE 679 (1917) and People v. Shiffman, 350 Ill 243, 182 NE 760 (1932), it was held error for the trial court to deny a motion for a continuance where counsel was appointed for defendant on the day of the trial, and consequently did not have an opportunity to prepare a defense. Defendant also cites People v. Ritchie, 66 Ill App2d 417, 213 NE2d 306 (1966) where it was held to be error to deny a continuance. In that case a public defender who had been appointed to represent a defendant held in custody requested a continuance because defendant was arranging for private counsel. The request for a continuance was denied, and the defendant acted as his own attorney with the public defender remaining in the courtroom to assist if the defendant requested help. The court held that under those facts a continuance would not have frustrated the administration of justice. In the case at bar, counsel’s request for a continuance on highly speculative and conjectural grounds would have resulted in an unnecessary delay in the administration of justice and was properly denied by the trial court.

Defendant next contends that the sentence of 20 to 40 years in the penitentiary was too severe, excessive and should be reduced.

This court is authorized to reduce the punishment imposed by the trial court. (Ill Rev Stats 1967, c 110A, § 615(b) (4).)

SHA, c 38 § 22-40, par 3, states:

“Whoever violates this Act by traffic in, selling, prescribing, administering, or dispensing any narcotic drugs, shall be imprisoned in the penitentiary for any term from 10 years to life, . . .”

Defendant was 22 years of age, married, and his wife was pregnant. He was employed by Shaner’s Corporation. His prior record consisted of a 90-day sentence in the House of Correction on the charge of Petty Larceny. At the time of sentencing, the trial judge stated that while this was defendant’s first offense, and that the amount involved was small, “there was every indication this was his occupation. The man is not an addict.”

We agree with the State that a nonaddict selling narcotics for profit commits a particularly heinous crime, and should be punished accordingly. We are also mindful that our Supreme Court has stated that reviewing courts should use their power to reduce sentences with considerable caution. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1966). Nor should a sentence be reduced merely because the reviewing court would have imposed a different one if it had been in the trial court’s position. People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965).

However, it is clear that the trial judge imposed the sentence of 20 to 40 years because he concluded that selling narcotics was defendant’s occupation. The only evidence to support that conclusion was the testimony given by Phillips that he had once made a purchase of marijuana from the defendant before September 16, 1964. There was no other evidence of a prior sale of narcotics. The testimony of defendant that he was employed was uncontradicted, and there was nothing in the record to indicate that selling narcotics was his occupation. A previous charge of possession of a hypodermic needle had been dismissed in court.

The State cites People v. Gassaway, 65 Ill App2d 244, 212 NE 689 (1965), wherein the court upheld the sentence of a 22-year-old defendant without prior record who was found guilty of selling $25 worth of heroin to a narcotics agent and was sentenced to 15 years to life. But in that case defendant told the narcotics agent that he was just a small peddler of narcotics, trying to make a living. There was no such admission in the instant case.

Prior to sentencing, the Assistant State’s Attorney recommended a sentence of 10 to 14 years. Under the facts and circumstances of this case, we believe that to have been an appropriate recommendation. The judgment and sentence are modified to provide that the sentence imposed on defendant be confinement to the penitentiary for a term of not less than 10 years nor more than 14 years, and as so modified, the judgment is affirmed.

Judgment modified, and as modified, affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Barney Joseph Brumbeloe, Defendant-Appellant.
    Gen. No. 51,210.
    First District, Second Division.
    June 18, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Constantine P. Zinos and James J. Doherty, Assistant Public Defenders, of counsel), of appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

On the evening of April 17, 1964, Thomas Kenney was fatally stabbed during a street fight. William Michael Perkins, who inflicted the fatal wound, and the defendant, Barney Joseph Brumbeloe, were indicted for murder. At a bench trial, both Perkins and defendant were found guilty of voluntary manslaughter and sentenced to a term of two to fourteen years in the Illinois State Penitentiary. Only the defendant, Barney Brumbeloe, appeals.

Defendant urges several grounds for reversal. We deem it necessary to consider two of those points.

On April 16, 1964, the day before the killing, Thomas Kenney, the deceased, confronted defendant in a pool hall. He accused defendant of running around with his wife and also of taking money from her. Defendant denied these accusations. As defendant backed out of the pool hall, the deceased followed him with knife drawn, cursing and threatening to kill defendant.

Deceased again confronted defendant later that afternoon in a bar. The bartender testified that deceased swore at defendant at this time. He asked the defendant the whereabouts of Mike Perkins. (William Michael Perkins.) When defendant replied that he did not know, deceased stated that either Perkins or defendant had stolen money from his wife, and that he was going to kill Perkins. He then threatened defendant with an immediate fight in the alley. As deceased started toward the back door, defendant went out the front door. The deceased gave chase and lunged at him with a knife, and defendant ran into an adjacent restaurant to escape.

Perkins, having learned of the meetings between defendant and deceased and the threats made on his life, did not leave his home on the evening of April 16.

On the afternoon of April 17, 1964, deceased returned to the pool hall several times asking the whereabouts of Perkins and defendant. When asked what was wrong, the deceased replied that he was “plenty mad” at them.

While defendant was sitting in the Huddle House restaurant later that afternoon, he saw the deceased across the street. Before leaving, defendant took a butcher knife from the kitchen of the restaurant and put it in his coat.

On the evening of April 17, while defendant was in another restaurant, the deceased’s wife told defendant that her husband was still looking for him. Shortly thereafter, deceased walked by the restaurant and pointed a finger at defendant. After deceased’s wife left the restaurant, Perkins and his brother arrived. Defendant testified that he was afraid to walk home alone and asked the Perkins brothers to accompany him. They agreed, and the three men left together, walking down Irving Park toward Sheridan Road, Chicago.

As they reached the corner of Irving Park and Sheridan Road, the deceased ran up to the defendant with his hand in his coat, and the fight began. There is a conflict in the testimony as to who struck the first blow. Defendant, Perkins and Ronald Pratt, an eyewitness, testified that deceased hit defendant first. However, in a statement given to police on April 18, Perkins had said that defendant struck the first blow.

Defendant testified that, after he was struck by deceased, he pulled out the butcher knife and hit deceased across the face with it. As the two men wrestled to the ground, defendant dropped the knife to the sidewalk and it was subsequently picked up by Perkins. Someone pulled defendant away and, thinking it was another attacker, defendant started to fight the bystander. Deceased started to rise, and in doing so, he grabbed Perkins by the waist, and Perkins fatally stabbed him. Deceased fell to the ground, and defendant struck and choked him. Pratt and defendant testified that deceased had a knife, and Pratt also testified that it dropped to the sidewalk, after which he picked it up and took it home. In a statement given to police on April 18, defendant did not mention that deceased had a knife.

It was stipulated that the cause of death was a stab wound of the heart. Deceased had also sustained two other stab wounds in the fight.

Defendant first contends that the State failed to prove beyond a reasonable doubt that the conduct of Perkins for which defendant was held accountable constituted the crime of voluntary manslaughter.

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this code, but his belief is unreasonable.” Ill Rev Stats, c 38, § 9-2(b).

Article 7 provides that a person . . . “is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.” Ill Rev Stats, c 38, § 7-1.

It is the province of the trial court, sitting as the trier of fact, to settle conflicts in evidence and to determine from the facts and circumstances whether defendant acted in self-defense or, if not, whether the circumstances attending the assault were such that the death at defendant’s hands constituted murder, manslaughter or justifiable homicide. People v. Washington, 27 Ill2d 104, 187 NE2d 739 (1963).

In the instant case, the trial judge found that Perkins committed the homicide under the belief that his killing was justified under the theory of self-defense, but that this belief was unreasonable. The testimony indicated that during the fight, as deceased was trying to pull himself to his feet, he grabbed Perkins around the waist, and that Perkins then stabbed him fatally. This evidence was sufficient to support the trial judge’s finding that Perkins’ belief that deadly force was necessary to defend himself was unreasonable. We find no error in the trial judge’s ruling that the acts of Perkins constituted the offense of voluntary manslaughter.

Defendant next contends that, even if Perkins’ conduct in killing the deceased was unlawful, the State failed to prove defendant accountable for that conduct beyond a reasonable doubt, and that without such proof, defendant cannot be held to be guilty of the crime of voluntary manslaughter.

Sections 5-1 and 5-2 (c), c 38 Ill Rev Stats (1961) are applicable to this case. Section 5-1 states:

A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2, or both.

Section5-2(c) states:

A person is legally accountable for the conduct of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.

In order to impose accountability it is not enough to show that a person’s act facilitated the commission of an offense by another. Under the statute, the State must prove beyond a reasonable doubt that whatever conduct facilitated the commission of an offense by another was done with the intent that such offense be committed.

The trial judge, as trier of fact, found that there was no malice on the part of Perkins. As there was no evidence of sudden or intense passion, the State agrees that the trial court found that Perkins committed this homicide under the belief that the use of deadly force was justified under the theory of self-defense, but that such a belief was unreasonable. Implicit in such a finding by the trial judge would be the determination that the deceased was the aggressor in the fight, and that defendant and Perkins did not start out with any intent to commit an illegal act.

Consequently, defendant’s conduct, both before and during the commission of the offense, must be examined to find whether the State proved him guilty of the intent that such an offense be committed.

Defendant’s conduct prior to the offense consisted of two acts: that of arming himself with a butcher knife, and requesting that the Perkins brothers walk him to his home. On the day before the killing, deceased, armed with a knife, had committed two assaults on the defendant. During one of these assaults the deceased threatened to kill him. Defendant retreated from both attacks, once by running into a nearby restaurant. On the day of the killing, a witness testified that deceased was looking for the defendant and that the defendant learned of this fact. Later that day defendant was advised by the deceased’s wife that the deceased was still looking for him. Thereafter, the deceased passed by and gestured to defendant. Under these circumstances defendant had the right to reasonably believe that force would be necessary to defend himself from another attack. Filippo v. People, 224 Ill 212, 79 NE 609 (1906). Defendant’s only other act prior to the offense was his request of the Perkins brothers that they walk him to his home. In view of the events which had transpired during the previous 24 hours, such a request was reasonable.

As to defendant’s conduct during the affray, defendant continually attempted to avoid the deceased, but was finally attacked in a place where he had a legal right to be. The deceased had his hand in his pocket as he ran up to defendant. After exchanging blows, the defendant struck the deceased across the face with the butcher knife. As the two men wrestled, the defendant discarded the butcher knife and it subsequently was picked up by Perkins. Defendant then fought with a bystander until after the deceased was slain by Perkins.

The elements justifying the use of force in self-defense are: 1) that force is threatened against a person; 2) that the person threatened is not the aggressor; 3) that the danger of harm is imminent; 4) that the force threatened is unlawful; 5) that the person threatened must actually believe (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and 6) that the above beliefs are reasonable. People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965). If a defender has reasonable ground to believe himself in danger or of suffering bodily harm he may protect himself even if he is mistaken and the danger is only apparent. People v. Lockett, 85 Ill App2d 410,229 NE2d 386 (1967).

Under the foregoing criteria, defendant was justified in his conduct during the affray. From the events of the previous day, including two assaults upon the defendant with a knife, the place of the attack and the position of the deceased’s hand when he ran up to the defendant, there were sufficient grounds to justify the force used by the defendant, including the use of the butcher knife. Whether the deceased actually had a weapon when he ran up to the defendant is not determinative in judging the latter’s conduct, for whether the danger is actual or apparent does not depend upon the assailant’s use of a deadly weapon or of having one in his possession. People v. Motuzas, 352 Ill 340, 185 NE 614 (1933). Perkins’ offense was his use of deadly force at a time when the deceased was struggling to rise to his feet, and when the use of such force was unnecessary and unreasonable. Under the facts and circumstances of this case, the State failed to prove beyond a reasonable doubt that any conduct of the defendant was done with the intent that Perkins’ crime be committed.

Judgment reversed.

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


author: MR. PRESIDING JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James L. Stewart and George Good, Defendants-Appellants.
    Gen. Nos. 51,404, 51,405. (Consolidated.)
    First District, Second Division.
    June 18, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

George Good and James Stewart were found guilty at a bench trial of the crime of attempt robbery. Good was sentenced to a term of one to four years in the penitentiary, and Stewart was sentenced to a term of two to five years in the penitentiary. Defendants maintain that they were not proven guilty beyond a reasonable doubt in that the identification evidence was vague, doubtful and uncertain, and that they were not shown in and identified at a police lineup.

Rudolph Siuszko, the prosecuting witness, testified that at 10:00 p. m. on November 27, 1965, he closed his business office at 3439 West Ogden Avenue in Chicago and boarded an Ogden Avenue bus to Kedzie Avenue. He alighted from the bus at Kedzie Avenue and waited in front of a drugstore on the southwest corner of that intersection for a southbound Kedzie Avenue bus. At approximately 10:20 p. m. three men approached Siuszko, two of whom he later identified as defendants Good and Stewart, and demanded money from him. After a two or three minute conversation, during which time Siuszko stated that he had no money, both defendants began beating Siuszko about the face and chest with their fists, while the third man stayed a short distance off. Siuszko testified that Good had a knife in the hand with which he was striking Siuszko, but that the blade was not exposed; a knife admitted into evidence at trial was identified by Siuszko as the one which Good had in his hand during the altercation. After some six blows were thrown by the defendants, Siuzko’s spectacles were knocked to the pavement. Siuszko testified that at that point someone called out, “The heat is coming,” and the three men fled, one man on an Ogden Avenue bus and the other two men on foot, south on Kedzie Avenue.

Siuszko further testified that a crowd had gathered at the scene, that he called out for his spectacles and that a bystander picked them up and handed them to him. A few minutes later police officers returned Good and Stewart to the scene and Siuszko identified them as his assailants. The witness also testified that he had cataracts removed from his eyes, and that his vision without spectacles was “fair,” but that with spectacles his vision was “20-20.”

Police Officer John Littleton testified that he and his partner, Robert Christian, both dressed in civilian attire, were proceeding south on Kedzie Avenue in an unmarked squad car approaching Ogden Avenue about 10:20 p. m. on the night in question. The officer testified he observed a “commotion” on the southwest corner of that intersection. As Officer Littleton kept the situation in constant view by looking over his shoulder, Officer Christian brought the squad car to a stop in an alley on the west side of Kedzie Avenue, some seven or eight automobile lengths south of the scene of the altercation. Officer Littleton testified that when he alighted from the squad car he observed a scuffle taking place on the comer involving three men. As the officers proceeded to the scene on foot, the commotion ceased and defendant Stewart began walking toward the officers. Officer Littleton stated he stopped Stewart, announced his office and questioned Stewart. Stewart stated that he was “just walking along.” Good, who at this time was still at the scene of the altercation some twenty-five feet from the officers and Stewart, ran west on Ogden Avenue and Officer Christian gave chase. When Officer Christian returned to the squad car with Good and Siuszko, Officer Littleton testified, Siuszko identified both Good and Stewart as two of the men who attempted to rob him; both men denied the charge. Officer Littleton further testified that, at the police station, Officer Christian asked Good why he attempted to rob Siuszko, and Good asked Christian would he not do the same for his family if they were in need. Officer Littleton’s police report recited that he observed three men on the corner of Ogden and Kedzie Avenues “in a strange huddle,” but the officer testified that the report should have described the situation as “disorderly” rather than as a “strange huddle.”

Officer Robert Christian testified that after he observed the commotion on the southwest corner of Ogden and Kedzie Avenues, he parked the squad car in an alley off the corner and that he and Officer Littleton proceeded to the scene on foot. The officer testified that his partner detained Stewart, who was walking toward them, while he proceeded after Good who fled west on Ogden Avenue. After a short chase, Good was apprehended and searched; a knife was found in his pocket. The knife was identified by Siuszko at trial as that employed by Good during the robbery attempt. Good was taken to the squad car where he and Stewart were identified by Siuszko as two of the men who attempted to rob him. Officer Christian further testified that he observed Good strike Siuszko during the altercation on the corner; that, in response to questioning by the officer at the police station as to the reason Good attempted to rob Siuszko, Good asked the officer if he would not have done the same thing for his family; and that the officer did not observe anyone on the corner at the time of the altercation other than Siuszko and the two defendants.

Both Good and Stewart testified that they were visiting at a friend’s house “near Kedzie Avenue and Independence Boulevard” during the evening of November 27, 1965. They left together and began walking south on Kedzie Avenue en route to the elevated train station. As they approached Ogden Avenue they observed several men, including Siuszko, on the southwest corner of Ogden and Kedzie Avenues. The other men left Siuszko standing alone in a seemingly dazed condition. Defendants approached Siuszko and inquired of him. what was the matter. Stewart testified he handed Siuszko his spectacles and as Siuszko put them on he shouted, “Police.” Stewart testified that he then walked south on Kedzie Avenue and was detained by a police officer. Good testified that when he observed Stewart being stopped by the police he became frightened and fled west on Ogden Avenue. He stated he was apprehended after a short chase. Both men denied attempting to rob Siuszko.

Defendants’ first contention, that the identification testimony was vague, doubtful and uncertain, is unavailing. Three eyewitnesses, Rudolph Siuszko and Officers Littleton and Christian, identified defendants as the men who assaulted Siuszko. Siuszko testified that three men, two of whom he unequivocally identified as defendants, approached him and demanded money from him. For the two to three minute period when engaged in conversation with the defendants, Siuszko had ample time and opportunity to observe them from a face-to-face position. Defendants then began beating Siuszko, knocking his spectacles to the ground. Although it appears Siuszko’s eyesight without spectacles was only “fair,” he was wearing his spectacles during the period he conversed with defendants and during the time they were beating him, and it is undisputed that his vision with spectacles was “20-20.” Siuszko also positively identified both defendants as his assailants immediately after the police officers returned them to the squad car a short while after the incident.

Defendants question Siuszko’s ability to clearly observe due to his poor eyesight. However, the trial court observed Siuszko while on the witness stand and while in the courtroom, and also witnessed certain simple tests conducted at the trial designed to test Siuszko’s observation abilities; the trial court was peculiarly situated to determine Siuszko’s credibility and the weight to be given to his identification testimony. The weight and credibility of the evidence is for the trier of fact to determine ; a reviewing court will not substitute its findings of fact unless the proofs are so unsatisfactory as to justify a reasonable doubt of guilt. People v. Boney, 28 Ill2d 505, 510,192 NE2d 920.

The account of the incident given by Siuszko was further corroborated by the testimony of the police officers. Although the officers stated that they were unable to observe the physical features of the men involved in the altercation on the corner when the officers first came on the scene, the persons involved were kept under constant surveillance by Officer Littleton and by Officer Christian until the arrests were effected. Not only did Officer Christian testify that he saw Good strike Siuszko during the struggle, but he also stated that he recovered a knife from Good after his arrest, which knife was identified by Siuszko at trial as that employed by Good during the altercation.

Defendants state that certain “inconsistencies” between the testimony of Siuszko and that of the police officers cast doubt upon the credibility of the State’s identification evidence. One of the matters raised in this regard is that Siuszko testified that both defendants fled south on Kedzie Avenue, whereas the officers testified that Stewart fled south on Kedzie Avenue and Good fled west on Ogden Avenue. However, not only was Siuszko in a dazed condition at the time of the flight after having been beaten by the defendants, but he also was without his spectacles at that time. Furthermore, Siuszko appears to have been somewhat confused at the time as evidenced by his statement that “everything happened so fast.” As to the other “inconsistencies” alluded to by the defendants, that of the difference in the testimony concerning the crowd which had allegedly gathered on the corner, the third man allegedly involved in the robbery attempt, the testimony of Officer Littleton that he did not see any fists swinging when he first observed the commotion on the corner, etc., these matters are trivial and are readily explainable in view of the positioning of the respective witnesses during the altercation, the point of time at which the matter testified to occurred, and the like. These were matters of weight and credibility for determination by the trier of fact and none of them substantially detract from the credibility of the accounts of the incident related by the State’s witnesses.

Defendants also maintain that they were not identified by Siuszko from a police lineup. There is no requirement that an accused be placed in a lineup for the purpose of testing the ability of a witness to identify him as the guilty party. People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920. Whether an accused had been identified in this manner goes only to the weight of the identification testimony and is consequently a question for the trier of fact. People v. Mikka, 7 Ill2d 454, 458, 131 NE2d 79. The defendants were observed in an attempt to commit a crime and they were apprehended at or very near the scene and were unequivocally identified by the intended victim at the scene a short while thereafter. Placing the defendants in a police lineup for identification by Siuszko would have served no useful purpose.

For these reasons the judgments are affirmed.

Judgments affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee v. Samuel Hill, Jr., Defendant-Appellant.
    Gen, No. 52,141.
    First District, Second Division.
    June 18, 1968.
    Rehearing denied July 24,1968.

      John J. Crown and Joan M. McMahan, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a jury trial, the defendant, Samuel Hill, Jr., was convicted of murder, and judgment was entered. Motions for judgment notwithstanding the verdict and for a new trial were denied and he was sentenced to not less than fifteen nor more than twenty years in the Illinois State Penitentiary. He appeals.

This case involves a homicide, which occurred soon after a disputed theft of money from the defendant’s person. The theft was allegedly committed by the decedent, Willie Brown. The evidence for the prosecution showed that Brown’s death by shooting occurred on June 11, 1966, between 10:30 and 11:30 p. m., near the Sportsman’s Corner Tavern in Chicago. A coroner’s physician testified that he performed an autopsy and found that one bullet had entered the left thigh area and the other bullet had entered Brown’s left shoulder muscle in his back (i. e., medically, the posterior aspect of the left deltoid), traversing from left to right in a forward direction and passing through the left lung, the aorta and finally passing from the right lung. Only these two wounds were found in the deceased’s body. The physician testified that in his opinion Brown’s death was caused by a bullet wound of the aorta.

James Ivory testified for the State that on June 11, 1966, between 10:00 and 10:30 p. m., he went to Sportsman’s Corner Tavern and saw the defendant and Brown, the deceased, arguing about money. Brown had a baby in his arms at the time. Defendant uttered profanities at Brown and demanded the return of his money. Brown denied having it. He went on to state that Robert Hill, the defendant’s brother, was present during this argument, as were Phyllis Bryant and Dolores Brown. Ivory went into the tavern, but returned to the street when he heard three shots. He did not see who shot whom, but when he returned to the street, he found Robert Hill lying near the side door of the tavern and Brown lying across the street. Both men had been shot. The defendant was gone. Ivory was also called by the State later in the trial as a rebuttal witness. Defense counsel objected, as Ivory had sat in the courtroom and listened to all the testimony in violation of the court’s exclusionary order, requested by the State. The objection was overruled, and Ivory was allowed to testify in rebuttal.

Dolores Brown testified for the People that at approximately 10:00 p. m. on June 11, 1966, she saw Robert Hill trying to wake the defendant, who was sleeping in his own car. His efforts were unsuccessful so he obtained some water from Sportsman’s Corner Tavern and while Willie Brown lifted the defendant’s head, Hill threw water in his brother’s face. The defendant awoke, immediately patted his pockets, stated his money was gone and asked both his brother and Brown if they had it. Receiving a negative response, the defendant said, “Well, you-; wait until I come back. I’ll be back. One of you all is going to give me my money.” Ten minutes later Miss Brown saw the defendant walk over to Willie Brown, who now was playing with a baby. The defendant asked Brown for his money. Brown said he did not have it and he continued to swing the baby up and down in his arms. Miss Brown then heard a shot and saw the baby falling from the deceased’s arms. It was caught by a man standing nearby. Three shots were fired with the last one hitting Robert Hill, who was steadily walking toward the defendant at the time. Later, the police arrived and took Robert Hill to the Cook County Hospital. This witness and Miss Bryant accompanied them.

On cross-examination, Miss Brown testified that she had executed a signed, written statement at the police station, after leaving the hospital. This was done in the early morning hours following the homicide. This statement, earlier marked as People’s Exhibit 6 for identification, had been delivered by the prosecution to the defense near the conclusion of Miss Brown’s testimony on direct examination. The witness identified this Exhibit as her statement, but went on to state, repeatedly, that she had made other written, signed statements to the police. When defense counsel asked the prosecution to produce these other statements, the State denied their existence, tendered its entire file to defense counsel and affirmatively stated that it was not trying to hide anything before the court. Defense counsel examined the prosecutor’s file, but could find no other signed, written statements therein taken from this witness. Miss Brown admitted on cross-examination that she did not tell the truth in her signed, written statement (i. e., People’s Exhibit 6 for identification). She did not mention in her statement that she was standing near the deceased, who was playing with a baby at the time of the shooting, but rather only stated therein that she heard some shooting, saw Robert Hill fall, and the defendant then ran past her.

On redirect examination, Miss Brown testified that she talked to two police officers at the hospital before going to the police station. They took notes of her conversation, but these notes were never reduced to a written statement for her signature. Miss Brown again stated that she signed more than one statement at the police station. She explained that the reason for the discrepancies in her written statement, when compared with her testimony in open court, was due to the fact that at the time of making her earlier written statement, she was the girl friend of Robert Hill, the defendant’s brother. She had talked with Robert Hill at the hospital, after speaking with the police officers there. He had told her not to say anything. At the conclusion of her testimony on redirect examination, Miss Brown stated that she saw the defendant shoot Willie Brown, the deceased.

At the conclusion of her testimony on recross-examination, in which Miss Brown again admitted that she had lied in her earlier written statement, but was now telling the truth in open court, defense counsel asked that the State deliver all the additional written statements signed by this witness which might be found in the Police Department file or any other file that the prosecution might have. In response to the court’s query, Miss Brown stated that she had signed two statements, with the first one being signed in the police station. The court and counsel for both sides then retired to chambers where the prosecution stated that when Miss Brown spoke of signing two statements, she really meant carbon copies of only the one statement. The court had its doubts as to this attempted clarification and indicated its willingness to ask Miss Brown some questions in a judicial effort to clarify the ambiguity and to precisely define the place and circumstances of all her alleged written statements. Defense counsel objected to such a procedure on the grounds that such questioning by the court before the jury would prejudice the defendant. Defense counsel wanted the prosecution to ask such questions of its witness, or bring in the police officers, who could either corroborate Miss Brown’s testimony concerning the number of statements she had signed, or rebut it. The trial court, in deference to defense counsel’s objection, did not question Miss Brown further. Neither did the prosecution.

The State did call, as its next two witnesses, the police officers who had knowledge of the statement or statements which Miss Brown had signed. Officer Peterson testified that he investigated the shooting soon after it occurred and he interviewed Miss Brown, Miss Bryant and another woman at Cook County Hospital. No signed, written statements were taken from them at that time. He then took them to a police station, where he saw two detectives receive statements from Misses Brown and Bryant. Officer Peterson went on to testify that he personally saw their statements typed out. He identified People’s Exhibit 6 for identification as the typed statement he saw Miss Brown sign in the police station. He saw her sign the original and carbon copies of this statement. On cross-examination, Officer Peterson testified that Miss Brown told him at the hospital that the defendant shot the deceased and Robert Hill following an argument concerning money. This officer was not cross-examined on the critical issue of how many written statements Miss Brown had signed in the police station.

Detective Brown testified that he saw Miss Brown and Miss Bryant in the Cook County Hospital, but no written statements were taken of them there. Miss Brown did sign a written statement in the police station. “She only signed one statement; the original plus copies. We have to maintain about eight copies for the office files downtown and for the State’s Attorney’s Office.” This witness was not cross-examined concerning the number of statements Miss Brown had signed, but was asked if any physical evidence was recovered from the homicide scene. He stated that the Police Department found two spent cartridges and gave them to the Crime Laboratory. On redirect-examination, Detective Brown testified that he never found a gun, either at the scene nor subsequently. The police tried to obtain the weapon used but were unsuccessful.

Phyllis Bryant testified for the State that on June 11, 1966, at approximately 10:00 or 10:30 p. m., she saw the defendant, the deceased, and Robert Hill, her fiance, standing outside the Sportsman’s Corner Tavern. The deceased was not holding anything in his hands and she heard no conversation between the parties at that time. When the prosecutor sought to awaken her conscience by reading her answers to the questions posed to her before the Grand Jury, defense counsel objected on the ground that the State was seeking to impeach its own witness. In chambers, the prosecutor indicated that Miss Bryant’s answers before this jury and her prior answers before the Grand Jury were contradictory, and came as a surprise to the State. The trial court then indicated it was going to call Miss Bryant as the court’s witness. The prosecutor asked the court if he could ask Miss Bryant some questions out of the presence of the jury and have her examine her statements given to the police at the hospital, in a final effort to aid the court in reaching its discretionary decision as to whether Miss Bryant should be called as the court’s witness. Defense counsel objected to this procedure done out of the jury’s presence but the trial court overruled the objection.

Replying to the prosecution’s questioning, with the jury not being present, Miss Bryant testified that she saw nothing happen to Willie Brown on June 11, 1966. In response to further questioning by the State, Miss Bryant testified that she saw the defendant slap Brown and ask him about the defendant’s money. When Brown started laughing and stated he did not have his money, the defendant shot him and also shot Robert Hill, defendant’s brother. The State then asked that the jury be returned and the trial court indicated that it was not going to call Miss Bryant as the court’s witness but rather, she would remain as the State’s witness.

In the presence of the jury now, Miss Bryant testified that she saw the defendant shoot the deceased near Sportsman’s Corner Tavern, after a conversation concerning the decedent’s possession of the defendant’s money. The deceased was holding a baby at the time of the shooting. She heard three shots fired. On cross-examination, she stated again that she saw the defendant shoot the deceased on the night in question. Earlier in the evening she had seen the deceased fighting with an unnamed man, knocking him down, and attempting to hit him in the head with some object. The fight was stopped but not before the deceased had pushed and argued with the peacemakers. This altercation occurred before the shooting, as when the homicide occurred, the decedent had stopped fighting and was playing with a baby.

The defendant did not testify. Four witnesses did testify for the defense, but the testimony of only two of them is material to the disposition of this appeal. The defendant’s sister, Dorothy Hughes, testified that at about 9:00 p. m. on June 11, 1966, she saw the defendant sleeping in his car, when Robert Hill and Willie Brown approached. As Brown went into the defendant’s pocket and shook the defendant to see if he was awake, the defendant awoke and started to argue with Brown, the deceased, who stated that if the defendant did not like it, he should step out of the car. Mrs. Hughes stated that the defendant jumped out of his car, but when Brown backed up to fight, the defendant hurriedly returned to his car and quickly drove off. Later that evening she saw Brown fighting with his Uncle Tommy.

This latter testimony concerning the fighting was corroborated by the last defense witness, William Phillips. He was asked if he knew the decedent’s general reputation in the neighborhood, but the trial court sustained the State’s objection to this question. Phillips stated that at the time of the shooting, he was a block away. He saw nothing but he did hear some shots. Earlier in the evening, between 10:00 and 10:30 p. m., he heard a conversation between the deceased and his cousin, as the latter had arrived to take Brown home, but Brown refused to leave stating, “I am waiting on somebody. When he comes back, I am going to kick his behind.” The witness went on to mention that the decedent had been drinking since 5:00 p. m.

On appeal, the defendant contends that the trial court committed reversible error in: (1) failing to have the State produce at the trial all the signed statements given by Miss Brown to the police; (2) allowing the State to rehearse Miss Bryant in her testimony, when the jury was absent, in order to coerce her into making statements favorable to the prosecution and unfavorable to the defendant later before the jury; (3) failing to allow the defendant to inspect the physical evidence taken from the homicide scene by the police (i. e., two spent cartridges) ; (4) failing to allow the defense to present evidence concerning the deceased’s reputation and character; (5) allowing James Ivory to testify for the State as a rebuttal witness, after he had violated an order of the court excluding witnesses, given on the motion of the State.

In support of his contention that the trial court committed reversible error in not requiring the State to produce all the written statements signed by Miss Brown, the defendant principally relies upon, People v. Neiman, 30 Ill2d 393, 197 NE2d 8 (1964) and People v. Wright, 30 Ill2d 519, 198 NE2d 316 (1964). However, both of these cases are distinguishable on their facts from the case at bar. In the Neiman case, the trial court issued a pretrial order that the prosecution turn over to the defense, before trial, written statements of the State’s two identification witnesses, which statements were shown to exist. The prosecution did not deny the existence of these written statements, agreed to turn them over before the trial began, but did not do so. On the day of the trial, the prosecution denied their existence, and defense counsel was not given an opportunity to examine them during the trial.

In reversing and remanding, the Supreme Court stated that the trial court committed reversible error by restricting the cross-examination of the State’s witnesses touching upon the existence and the contents of these written statements. It went on to state that when statements by the prosecution’s witnesses are shown to exist, the State, on demand, must furnish them to defense counsel for impeachment purposes. The record in the Neiman case indicated that two of the State’s witnesses at the trial corroborated the existence of the written statements, and the State itself did not deny their existence on the day the pretrial production order was entered but rather refused to comply and on the day the trial began, indicated that the written statements did not exist. In the case at bar, however, the prosecution did not fail to cooperate with the defense in searching for Miss Brown’s written statements, but rather turned over to defense counsel at the trial, its entire file. Further, in the instant case, there was no corroboration of Miss Brown’s testimony that she signed more than one statement. Officer Peterson and Detective Brown testified that they saw her sign only one written statement and many carbon copies. Defense counsel did not cross-examine them on this point and did not introduce any evidence to corroborate Miss Brown’s testimony that she signed more than one written statement.

The Wright case is also distinguishable. That case involved a rape conviction in a jury trial. In its opinion the Supreme Court stated the case involved a close question concerning the defendant’s identification as the rapist. Hence, the trial court, even though not asked by defense counsel, should have examined the contents of the police file, which was in court pursuant to the defendant’s subpoena, in order to determine if it, in fact, contained a written statement by the State’s sole identification witness, the prosecutrix. In her testimony she indicated that she had given the police a signed written statement. The prosecution indicated it did not have the statement, and the trial court refused to permit defense counsel to examine the police file. The Supreme Court remanded the case with directions to examine the police file. If the trial court found these statements and they would qualify for impeachment purposes, the defendant was to receive a new trial. If no documents were found, the trial court should render such a finding of fact and enter a new final judgment of conviction.

The court in the Wright opinion stated that, undisputedly, the statement signed by the prosecutrix did at one time exist and was at one time in the State’s possession. However, in the case at bar, the fact of whether or not Miss Brown executed a second, signed written statement to the police is disputed. Further, in the Wright case, the police file was in court pursuant to the defendant’s subpoena. In the instant case, no police files were in court as the defendant’s pretrial motion for the production of police reports, police files, etc., had been denied. No appeal is now taken from that discretionary ruling of the trial court.

The defendant does not allege that the prosecution was guilty of bad faith in this search for the alleged other written statements. The defendant does argue that the trial court should have required the State to prove that some effort had been made to locate the other statement and should have ordered the State to produce all other statements by Dolores Brown which were in the possession, custody or control of not only the prosecution, but also any other agency of the State, such as the Chicago Police Department. The record indicates that the State cooperated in the search for the alleged missing written statements. Defense counsel foreclosed the trial court’s inquiry into this area by stating that the court’s asking such questions of Miss Brown, in the jury’s presence, concerning the existence of her other written statements, would prejudice the defendant. In People v. Arnold, 2 Ill2d 92, 96, 116 NE2d 882, 885 (1954), the court stated:

“The trial judge has a right to ask questions of witnesses or call other witnesses to the stand in order to ascertain the facts and elicit the truth concerning the issues at hand, even when there is a jury, providing he does so without showing any bias or prejudice. ...”

We find that from this record, only one original written statement signed by Miss Brown is shown to exist.

Secondly, the defendant argues that the trial court erred in allowing the prosecution to coerce Miss Bryant, when the jury was absent, resulting in her later unfavorable testimony, regarding defendant, before the jury. The record is devoid of any coercion practiced by the State upon Miss Bryant. No threats or promises were made by the prosecution. Rather, the record does show that in questioning this witness out of the jury’s presence, the prosecutor was expressly seeking to lay the foundation for the calling of Miss Bryant as the court’s witness, thereby aiding the court in its subsequent ruling thereon. Earlier, defense counsel had objected to calling Miss Bryant as the court’s witness. As was stated in People v. Moriarity, 33 Ill2d 606, 615, 213 NE2d 516, 521 (1966):

“The practice of the court’s calling a witness at the request of the prosecution in a criminal case was first enunciated in Carle v. People, 200 Ill 494, where the court approved the calling of an eyewitness to a crime for whose veracity the State’s Attorney could not vouch. It was later stated in People v. Cardinelli, 297 Ill 116, that the purpose of the practice was to prevent a miscarriage of justice by having an eyewitness to a crime, for whose veracity neither party will vouch, fail to testify. . . . Further, as indicated in People v. Siciliano, 4 Ill2d 581, 590, a proper foundation must be laid for the calling of a court’s witness, which would necessarily consist of the reasons why the party desiring the witness cannot vouch for his veracity, and showing that the testimony of the witness will relate to direct issues and is necessary to prevent a miscarriage of justice.” (Cited cases omitted.)

It is true, as the defendant contends, that the jury was completely unaware that Miss Bryant first denied seeing anything happen to Willie Brown, the deceased and then, in response to further questioning by the State’s Attorney, changed her testimony to state that she had seen something happen to Willie Brown. The State cannot be blamed for this. It claimed surprise when the witness became unresponsive to its questions asked of her on direct examination, giving answers which were allegedly inconsistent with her prior testimony before the Grand Jury. The prosecution was acting within its legal rights in asking the court to call Miss Bryant as the court’s witness. In asking her these questions, out of the jury’s presence, the State was properly laying the foundation for the court’s possible later calling of her as its own witness. It would tend to mislead and confuse the jury to have it present when the foundation is laid.

As a result of this questioning, which was not coercive, Miss Bryant’s conscience was awakened, and it became unnecessary to call her as the court’s own witness. These proceedings, held out of the jury’s presence, were proper.

The defendant also contends that the trial court erred in failing to allow him to inspect physical evidence, i. e., two spent cartridges found at the homicide scene. The defendant subpoenaed any and all bullets, cartridge cases, and reports relating thereto arising from the alleged murder of Willie Brown or the arrest of the defendant. Furthermore, in response to the defendant’s motion for a bill of particulars, the State answered that the defendant was armed with a revolver when he committed the crime. Detective Brown testified that two spent cartridges were recovered from the homicide scene, but the police were unable to find the weapon used.

It was error for the State not to produce these two cartridges in response to the defendant’s subpoena. Whether or not these cartridges had any evidentiary value was for the defense to decide in light of the State’s answer to the defendant’s bill of particulars. However, the nonproduction of these cartridges was harmless error. Detective Brown testified that he briefly saw the cartridges, but he could not tell if they came from a revolver or an automatic just by looking at the casing; that he and ballistics experts would require the weapon from which they were fired. The weapon was never recovered in this case. This factor coupled with the competent and credible testimony of the two eyewitnesses to the offense, who named the defendant as the man who shot the deceased, leads us to the conclusion that the State’s failure to produce the two cartridges recovered at the homicide scene was harmless error.

The defendant further contends that the trial court erred in excluding testimony concerning the deceased’s reputation and character. The record indicates that defense counsel sought to introduce this factor into evidence on two separate occasions — upon cross-examination of the State’s first witness, James Ivory, and upon direct examination of the defense’s last witness, William Phillips. The following question was asked of Ivory on cross-examination near the outset of the trial: “Did Willie Brown ever engage in any fights at the tavern?” The trial court properly sustained the State’s objection to this question as it was beyond the scope of direct examination. Further, the defense had not attempted to show that the deceased was the assailant, which is the necessary foundation for the asking of such a question. See People v. Gibson, 385 Ill 371, 52 NE2d 1008 (1944).

Later in the trial, Phyllis Bryant testified that earlier in the evening of the homicide she saw the deceased fighting with an unknown man. Dorothy Hughes, the defendant’s sister, corroborated this testimony and said the unknown man was the decedent’s Uncle Tommy. Furthermore, she stated that the defendant and the deceased almost came to blows earlier in the evening, but the defendant fled before any blows were struck. William Phillips testified for the defense and was asked if he knew the deceased’s general reputation in the neighborhood. The trial court sustained the State’s objection to this question. Later in his testimony, Phillips stated that he heard the deceased tell his cousin that he was not leaving the neighborhood, but rather he was waiting for someone and when that someone returned, the deceased was going “. . . to kick Ms behind.” Defense counsel argues that the trial court erred in restricting his examination of Phillips and preventing him from introducing testimony concerning the deceased’s general reputation in the neighborhood.

The answer to this contention is to be found in the case of People v. Adams, 25 Ill2d 568, 572, 185 NE2d 676, 678-679 (1962), where the Supreme Court stated:

“This court has repeatedly held that evidence as to the violent disposition of the decedent and prior threats or misconduct by the decedent directed towards the defendant is admissible in a prosecution of the defendant for killing the decedent where the defendant relies upon self-defense and preliminary testimony establishes an act of aggression by decedent. . . .”

Hence, the fact that the decedent engaged in a fight with his uncle would not be the proper foundation for such a question directed to Phillips as the deceased’s misconduct was not directed towards the defendant. The fact that the deceased and the defendant almost came to blows earlier in the evening of the homicide and that the deceased inferentially delivered a threat to the defendant which Phillips overheard, does not allow such testimony to come into evidence either. Defense witnesses had not established by their preliminary testimony that the decedent committed an act of aggression upon the defendant. Indeed, the record contains competent evidence sustaining the opposite conclusion. The coroner’s physician testified that the bullet which killed the decedent by affecting his aorta entered the deceased’s posterior aspect of his left deltoid. It travelled in a forward direction and moved from left to right. Such testimony would reasonably support the inference that the deceased was shot in the back.

The two eyewitnesses, Misses Brown and Bryant, did not testify to any struggle between the defendant and the deceased for possession of a gun which could result in the deceased being shot in the back. In fact, both eyewitnesses testified that the decedent was playing with a baby when he was shot. There was no showing of aggression by the decedent directed to the defendant. Hence, the trial court was correct in excluding testimony pertaining to the victim’s reputation and character.

The defendant’s final contention is that the trial court erred in accepting the rebuttal testimony of James Ivory for the State, after Ivory had violated the court’s order excluding all witnesses from the courtroom. This order was given pursuant to a motion made by the State. Whether or not to allow a witness to testify in rebuttal, after he has remained in the courtroom throughout the trial in violation of the court’s exclusionary order, rests in the sound discretion of the trial court. Such testimony is not necessarily prejudicial. See People v. Fiorito, 413 Ill 123, 108 NE2d 455 (1952). The defendant argues that actual prejudice to him occurred when Ivory attempted to discredit, by his rebuttal testimony, the statements of two defense witnesses, Shirley Hollister and Dorothy Hughes, who had testified earlier in the trial as to what they could see through the windows of the Sportsman’s Corner Tavern. We disagree. The record indicates that the defendant objected to such testimony of Ivory. The trial court sustained this objection and instructed the jury to disregard Ivory’s answer. The remainder of Ivory’s testimony had to do with the parking position of defendant’s car during certain hours of the evening in question. This testimony was thus directed to a minor collateral point in the case, not material to the main issues. Since the defendant has not shown how he was actually prejudiced by Ivory’s testimony in rebuttal, the trial court did not clearly abuse its discretion in allowing Ivory to again testify on rebuttal.

The judgment of the trial court is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.