author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Defendant in Error, v. Sebron Beard, Plaintiff in Error.
    Gen. No. 50,072.
    First District, Fourth Division.
    January 21, 1966.

      Ralph B. Long, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Willie Whiting, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Sebron Beard, defendant, was indicted for murder. The case was tried before a jury in the Criminal Court of Cook County. The jury rendered a verdict finding the defendant guilty. His motions for a mistrial, for a directed verdict, for a new trial, and in arrest of judgment were overruled. Judgment was entered on the verdict and he was sentenced to a term of 50 years in the state penitentiary. He brought a writ of error to the Supreme Court of Illinois which court transferred the case to this court.

In this court defendant argues that many alleged errors were committed in the trial court; among others, that the court erred in admitting into evidence People’s Exhibit One—a revolver; in restricting the cross-examination of the State’s principal witness; in ruling that the defendant’s request addressed to the Assistant State’s Attorney for statements of witnesses taken before trial would be refused unless the request was made in the presence of the jury; and in preventing the defendant from having a fair trial because of the prejudicial conduct and remarks of both the trial judge and the Assistant State’s Attorney.

The evidence in the trial court on behalf of the People was that the decedent was a part-time employee at the Anchor Inn Tavern in Chicago. The proprietor of that establishment refused to further serve defendant Beard at about 10:80 or 11:00 p. m., on February 24, 1961. Beard left the premises and returned almost immediately. The decedent, Homes, went up to Beard, talked with him for two or three minutes, then escorted him out of the tavern. Ten or fifteen minutes later a gun went off, and Homes was dead. The People’s key witness, Jearlean Rubio, testified that she had seen the two men “tussle” with each other in front of the Anchor Inn; that Beard pushed Homes onto the hood of an automobile, and Beard then came up with a gun. She turned her head away and heard the gun go off three times. When she looked back Beard was standing over Homes and was holding the gun in his hand. Homes staggered into the street before collapsing and dying. The police arrived about fifteen minutes later, arrested the defendant, and charged him with murder. The police took a gun which the defendant was holding in his hand.

The defendant took the stand in his own behalf and testified that when the decedent pushed him out of the door the defendant asked him if he was crazy, whereupon the decedent kicked him. The defendant started to grab him and “he came up with this gun.” The defendant then grabbed for the gun and the two men started tussling over it. During the struggle the gun went off and Homes toppled over dead. The defendant also testified that the gun was not his, nor did he have it on his person prior to the tussle. By the testimony an issue was raised as to whether or not the gun belonged to the decedent and as to whether or not it was discharged while the defendant and the decedent were struggling for its possession.

The defendant urges that the alleged murder weapon was improperly introduced into evidence. The record shows that the State’s witness, Police Officer Peter Duffy, on direct examination was shown a revolver marked “People’s Exhibit One for Identification,” and he stated that it was the revolver he had seen in the defendant’s hand at the scene of the crime. The defense attempted to cross-examine the witness regarding the gun. Counsel for defendant asked, “Is this gun registered, Officer?” The question was repeated as to whether the serial number was registered. The police officer was asked if a ballistics test was made on the gun. To all of these questions the court sustained the State’s objections. As we have indicated, there was an issue as to whether or not the gun taken from the defendant was his gun. When the court sustained the objections of the People the defendant moved for a mistrial. The court denied his motion, overruled his objection, and admitted the gun into evidence. The ruling of the court that the gun might be admitted into evidence was not erroneous. People v. Germany, 28 Ill2d 154, 190 NE2d 713; People v. Lenhardt, 340 Ill 538, 173 NE 155; People v. Bernette, 30 Ill2d 359, 197 NE2d 436; People v. Jones, 22 Ill2d 592, 177 NE2d 112. As we have stated, however, we believe it was error to have restricted cross-examination to the extent indicated.

It is next urged that the trial court erred in restricting the cross-examination of Jearlean Rubio, who was the State’s principal witness. Defense counsel attempted to cross-examine Rubio regarding whether or not she had been arrested for disorderly conduct the evening before the trial and held overnight at the County Jail. The trial judge refused to permit the cross-examination and refused to permit counsel for defendant to make an offer of proof. Under Ill Rev Stats 1961, c 38, §§ 587 and 734, a witness may be cross-examined for the purpose of destroying his credibility only where he has been convicted of an infamous crime. Infamous crimes include murder, rape, indecent liberties with a child, perjury, kidnaping, burglary, etc. Disorderly conduct is not such an infamous crime, and furthermore, Rubio had not been convicted of such an offense, but only arrested and held on a charge. In the case before us, however, it was not intended to discredit the witness generally, but only to bring out that she had been charged with a criminal offense in order to show that the witness might be coloring her testimony because of an offer of immunity or leniency in an independent proceeding, or because of the coercive effect of her detention. People v. Soto, 64 Ill App2d 94, 212 NE2d 353; Alford v. United States, 282 US 687, 75 L Ed 624, which case is cited with approval in People v. Mason, 28 Ill2d 396, 192 NE2d 835. In the instant case the defendant wished to bring this evidence before the jury so that the jury could consider Rubio’s testimony in the light of the fact that she was detained in jail by the People. In our opinion, the cross-examination of Rubio was unduly restricted, and this ruling by the trial court was error.

It is also urged by the defendant that the jury was improperly informed of the existence of prior statements made by witnesses (including Rubio) before such statements were identified and used by either the State or the defendant. At three points in the trial the defense, out of the presence of the jury, requested the People to deliver over any statements which the State’s witness may have given to the State’s Attorney or to the police prior to the trial. Each time the court told the defense that such a request had to be made in the presence of the jury and overruled defendant’s objections to such procedure. On each occasion the court instigated the request by asking in the presence of the jury if the defendant wanted the statements. The defendant answered that he did, and in each case moved for a mistrial. The motions for mistrial were denied. Thereafter, the State’s Attorney, in the presence of the jury, offered to stipulate to the statements and again the court overruled defense objections and motions for mistrial. The defense argues that such a procedure practically forced defendant’s counsel to use the statements or run the risk of giving the jury the impression that the statements contained no impeaching material. The defendant further argues that it is well settled that if an impeaching writing contains matter which is irrelevant or incompetent only such parts of the writing as are contradictory or inconsistent with the testimony need be read to the jury. (Citing Davis v. Commercial Fuel & Service Co., 318 Ill App 225, 47 NE2d 506 (Abst) ; ILP Witnesses § 233.)

It has been held that the defendant has the right to make a demand on the People for the production of statements. People v. Wolff, 19 Ill2d 318, 167 NE2d 197, cert den 364 US 874. In that case the court held that a demand for such statements can be made after direct examination of the State’s witnesses, and that if the prosecution claims the statement is privileged, irrelevant or incompetent, the trial court is to examine the statement to determine whether such claims are justified. If the statement is shown to be relevant, competent and not privileged, the court shall order the statements delivered directly to the accused for his inspection and use for impeachment purposes. It was further held in that case that once a statement or report is shown to contain related material, only the defense is equipped to decide whether it has value for impeachment. Citing People v. Neiman, 30 Ill2d 393, 197 NE2d 8; and People v. Edmunds, 30 Ill2d 538, 198 NE2d 313.

In the instant case, in the presence of the jury, the State’s Attorney turned over the requested statements as ordered by the court and further offered to stipulate as to the contents of the statements. The defendant argues that this was error and cites Helgesen v. Chicago Suburban Water & Light Co., 156 Ill App 541. In that case the plaintiff’s attorney in a personal injury action stated in the presence of the jury that a statement, the admissibility of which was under consideration by the trial -judge, flatly contradicted what a defendant’s witness had testified to. The Appellate Court reversed a judgment for the plaintiff on the ground that the plaintiff’s attorney had announced the substance of the contents of a writing which had not been properly admitted.

In the instant case the State’s Attorney, in his argument to the jury, discussed the testimony of Rubio and said, “Did she tell any different story than she ever told ? Actually, it is the very statement she made to the police and I gave it to him.” Counsel for the defendant objected and asked for a mistrial. The objection was overruled and the mistrial denied. The State’s Attorney then continued, “And I gave it to him. Did he show you jurors any contradictory statements that she previously gave to the police ? No, he didn’t.”

Under the ruling in the Helgesen case, when the defendant is required to ask the People in the presence of the jury for a statement made by a witness, and when the State’s Attorney in the presence of the jury, upon turning over the statement to defense counsel, offers to stipulate that the statement is authentic, it would seem that the defense attorney is put in the position of having to use the statement or appear to be hiding something from the jury. Before the defendant’s counsel examines the statement it is impossible for him to tell whether or not he would wish to use it and whether or not it contains inadmissible hearsay.

The People in their brief cite People v. Gilbert, 12 Ill2d 410, 147 NE2d 44, and argue that that case held that the introduction of the statements in the presence of the jury before such statements were used or identified, was not error. However, in that case the People introduced into evidence a statement made by defendants to which no objection was made. The court did not discuss the rules of evidence but merely stated that the statements made by the defendant prior to the trial were not offered for any improper purpose, nor were they improperly referred to as a confession.

In the Chicago City Ry. Co. v. Gregory, 221 Ill 591, 77 NE 1112, the court cited and quoted from Scripps v. Reilly, 38 Mich 10, in which case the court said:

“Everything having a tendency to prejudice or influence a jury in their deliberations which is not lawfully admissible in evidence on the trial of the cause should be, so far as possible, kept from coming to their knowledge during the trial. An impression once made upon the mind of a juror, no matter how, will have more or less influence upon him when he retires to deliberate upon the verdict to be given, and no matter how honest or conscientious he may be or how carefully he may have been instructed by the court to not permit such incompetent matter to influence him or to have any bearing in the case, it will be difficult, if not impossible, for him to separate the competent from the incompetent, or to show to what extent his impressions or convictions may be attributed to that which properly should not have been permitted to come to his knowledge.”

In Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 57 NE2d 216, the plaintiffs’ attorney attempted to introduce a statement taken from Clark, the driver of one of the automobiles involved in the accident, in the presence of the jury. Out of the presence of the jury the court announced that it would sustain the objections to the exhibits and it was argued by the defendant that the attempt to introduce the statement in the presence of the jurors was prejudicial. The court said: “We agree with defendants that the conduct of plaintiffs’ counsel made it appear that defendants were responsible for keeping Clark’s statement from the jury, thus giving the impression that it was unfavorable, or the defendants would not have objected to it.” The court held that the defendants were deprived of a fair trial. In the case before us the ruling of the trial court that the request for the statement must be made in the presence of the jury was error.

It is unnecessary to dwell upon the many claims of defendant that he did not receive a fair trial because of the tactics of the State’s Attorney and the rulings and comments of the trial judge during the trial. There were endless objections to the form of questions and to the answers made. There wer§ countless interruptions and continual bickering. We hope that this will not be repeated when the case is retried.

The judgment of the Circuit Court of Cook County is reversed and the case is remanded.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    John E. Owens, Special Administrator of the Estate of Joseph C. Rak, Deceased, Appellant, v. New York Life Insurance Company, a Corporation, Appellee.
    Gen. No. 50,453.
    First District, Fourth Division.
    January 21, 1966.

      Owens, Owens & Rinn, of Chicago, for appellant.
    Spray, Price, Hough & Cushman, Wendell J. Brown and John A. McDonald, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from the dismissal of his action to recover attorney fees and costs incurred in the prosecution of a suit for reformation of two life insurance policies issued by the defendant.

On September 29, 1957, Joseph Rak (deceased) applied to the defendant for life insurance in the amount of $75,000 with the beneficiaries thereof to be designated as follows: “Helen Bernotes, my sister, and Moneta Turek, my sister, equally.” Defendant issued two policies having a total face value of $75,000 but designated the beneficiaries as follows: “Helen Bernotes and Moneta Turek, sisters of the insured, share and share alike, or the survivor.” Moneta Turek subsequently died on November 28, 1957. The insured married Lillian Rak on August 30, 1958, and died on November 13, 1958. Lillian Rak was appointed administratrix of his estate and on its behalf claimed the entire life insurance proceeds or, in the alternative, one-half thereof. Helen Bernotes, the surviving sister, also claimed the entire proceeds of the policies as the sole surviving beneficiary thereunder.

On February 5, 1959, defendant filed a bill of inter-pleader and, pursuant to court order, deposited the proceeds of both policies with the court. Subsequently, upon her petition, Lillian Rak was granted leave to intervene individually and not as administratrix. In this petition Mrs. Rak asserted that she was entitled to the entire life insurance proceeds, alleging that before his death Joseph Rak indicated his intention to change the beneficiaries of both policies and make her the sole beneficiary thereof. Because of the conflict of interest of Lillian Rak the probate court appointed John E. Owens as Special Administrator of the estate. Owens was granted leave to file a counterclaim (and subsequently an amended counterclaim) by which he sought to reform the survivor-ship provisions of the respective policies to conform with the application of Joseph Rak. On February 24, 1960, all of the claimants agreed to the entry of a consent decree of interpleader which contained a finding of fact that none of the rival claimants “claims or prays for any money judgment against said New York Life Insurance Company.” The decree also contained the following conclusion of law:

Inasmuch as said New York Life Insurance Company has interpleaded the entire proceeds of said policies, none of said rival claimants, Helen Bernotes, Lillian Rak, or John E. Owens, Special Administrator of the Estate of Joseph C. Rak, Deceased, is entitled to or hereafter will be entitled to, any money judgment in this or other litigation for, on account of, with relation to, or under said policies, or either of them.

Pursuant to its findings and conclusions the court entered an order dismissing defendant from the proceeding “except with respect to the entry of relief prayed against it for reformation. . . .” The court further ordered:

That said rival claimants ... be and each of them is hereby permanently enjoined and restrained from bringing or maintaining any suit or suits against said New York Life Insurance Company, . . . for or on account of or under said Policies . . . for death benefits or other benefits for, on account of, with relation to, or under said policies, or either of them.

On April 7, 1960, the trial court entered a decree denying reformation and awarding the entire proceeds to Helen Bernotes. The appellate court reversed that decree (New York Life Ins. Co. v. Rak, 30 Ill App2d 86, 173 NE2d 603) and in granting the prayer for reformation stated at page 97:

The insured under the provisions of the application and the policies in this case was not bound to know that through the negligence of the company the policies were issued in terms different from those contained in his application.

Therefore one-half of the proceeds was awarded to Owens, as Special Administrator, and the other half to Helen Bernotes. This decision was affirmed by the Supreme Court (New York Life Ins. Co. v. Rak, 24 Ill2d 128, 180 NE2d 470).

The probate court allowed to the special administrator and his attorney the fees and costs incurred in the aforementioned litigation, which were paid by the estate. Plaintiff then brought an action to recover those expenses from the defendant herein, which was dismissed by the trial court upon defendant’s motion.

Plaintiff contends that since the aforementioned litigation between the rival claimants was necessitated by, and a direct result of, the defendant’s negligence that therefore defendant is liable for the attorney fees and costs incurred by him therein. Defendant asserts that since it was a party to the interpleader-reformation litigation as the plaintiff and counter-defendant, the issue in the instant case is indistinguishable from that in Ritter v. Ritter, 381 Ill 549, 46 NE2d 41. In that case the plaintiff brought an action against the defendant, alleging fraud. After a judgment in her favor the plaintiff brought another action against the same defendant to recover her legal expenses incurred in the prior litigation which was necessitated by the latter’s wrongful act. The court upheld the decision of the trial court in dismissing the complaint for failure to state a cause of action, concluding that even though the plaintiff had been initially forced into litigation by the defendant’s wrongful conduct, the plaintiff could not recover as damages in a subsequent suit his attorney fees and expenses. The court stated at page 555 that:

If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action against the defendant for his attorney fees and expenses incurred in obtaining the preceding judgment.

Plaintiff contends that this case is inapplicable to the facts of the instant case and cites Baird v. Liepelt, 62 Ill App2d 154, 210 NE2d 1, as support for his contention. The plaintiff in that case brought an action to set aside an alleged wrongful attachment of his property by the defendant therein. After succeeding in his action the plaintiff then filed an action against the defendant and also the surety on the attachment bond, seeking to recover the attorney’s fees expended by him in setting aside the wrongful attachment. (The surety was not a party to the original action.) The court allowed the separate action holding that Ritter v. Ritter, supra, was distinguishable inasmuch as it was neither a tort action brought for wrongful attachment nor an action to recover under the terms of a bond. Thus, by its express language the decision in Baird is not applicable.

Freed v. Travelers, 300 F2d 395, cited by the plaintiff, was an action for a declaratory judgment in the Federal Court. The holding therein is not applicable to the issue in the instant case. Other authorities relied upon by the plaintiff are inapposite in that they relate to instances in which the wrongful act of the defendant caused the plaintiff to engage in litigation with a third person, the defendant not being a party thereto. In the instant case, however, the defendant was a party to the prior litigation as plaintiff and counter-defendant therein. Moreover, if the defendant herein had not filed its bill of interpleader, presumably it would have been sued in independent actions filed by each of the respective claimants for payment of the insurance proceeds. Since under those circumstances the principle of Ritter v. Ritter, supra, clearly would preclude the recovery of attorney fees as damages by any of the respective claimants, there cannot be such recovery when the insurer simplifies the litigation process by filing a bill of interpleader.

The decision of the trial court dismissing the complaint is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       Philpot v. Taylor, 75 Ill 309; Turner v. Zip Motors, Inc., 245 Iowa 1091, 65 NW2d 427; Security State Bank of Comanche, Okla., v. W. R. Johnston & Co., (Okla), 228 P2d 169 (1951); Prentice v. North American Title Guaranty Corp., 59 Cal2d 618, 30 CalRptr 821, 381 P2d 645; Prior Lake State Bank v. Groth, 259 Minn 495, 108 NW2d 619.


author: CORYN, P. J.

text:
    Fred G. Russell, as Trustee Under the Will of Lewis S. Hartzell, Deceased, Plaintiff-Appellant, v. Lawrence Rici and Eleanor Rici, Defendants-Appellees.
    Gen. No. 65-54.
    Third District.
    January 21, 1966.
    Rehearing denied February 10, 1966.

      Harper Andrews and Campbell Andrews, both of Kewanee, for appellant.
    John C. Hedrich, of Princeton, for appellees.
   CORYN, P. J.

From the record here and the facts reported In re Will of Hartzell, 43 Ill App2d 118, 192 NE2d 697 (1963), to which reference is made by the parties here in their briefs, it appears that one Lewis Hartzell died seized of certain realty as to which he created a testamentary trust by a will admitted to probate sometime after his death on September 10, 1927. The beneficiaries of this trust included two life tenants and various remaindermen. The trustee designated by the will never qualified or acted, and the trust was never otherwise activated, although the settlor clearly assigned duties to his trustee. It appears that in the absence of a trustee, some or all of the beneficiaries themselves took possession of the trust property and, in 1955, executed a contract with defendants, Lawrence and Eleanor Rici, to sell to them, upon certain terms, and for the price of $15,000, a certain tract of trust realty. It is not disputed that for several yéars thereafter, the Ricis first made their payments of interest and principal to the surviving life tenant, and thereafter, at her direction, to L. D. Spaulding, Jr. Spaulding paid over the interest to the life tenant and reserved the principal, presumably for the remaindermen, although whatever disposition was made of these monies, did not become an issue in the trial court, and is not clear from the record. On March 3, 1959, the defendants being ready to make a final payment of $10,346.20, and it being considered that legal title must come from a testamentary trustee to whom the will gave a power of sale, the Hartzell beneficiaries, or some of them, as plaintiffs, by L. D. Spaulding, Jr., their attorney, filed a complaint in the Circuit Court of Bureau County naming Lawrence and Eleanor Rici as defendants, in which the facts regarding the Lewis Hartzell trust were alleged. It was averred in that complaint that the Ricis had offered $15,000 for the trust property, that this was a fair price, and that a trustee should be appointed to accept the offer and convey the premises. On March 5, 1959, a decree was entered appointing Harold Parr trustee, and authorizing the sale upon fixed terms. After qualifying, Harold Parr, as trustee, on March 10, 1959, executed and acknowledged a deed conveying the trust premises to Lawrence and Eleanor Rici, and delivered the same to L. D. Spaulding, Jr., his attorney, for delivery to the grantees upon receipt of the purchase price. On the same day, the Ricis delivered their check to Spaulding, payable to him, per his directive, in the amount of $10,346.20, in exchange for which they were given the trustee’s deed, which was then recorded on the same day. Thereafter, Parr, who had been a friend of Spaulding’s for forty years, and who was himself a realtor, was told by Spaulding that he had invested the money received by him from defendants, and Parr never did demand these funds from Spaulding. Parr’s realty office was about two doors away from the premises purchased by the Ricis, which they used for a restaurant building, and although the Ricis, after receiving their deed to the premises, made numerous improvements thereto, Parr did not ever claim from them that money was owing on the purchase price, and they did not know that Parr had never taken the money from Spaulding. After Spaulding’s defection, which apparently involved his conversion of these funds, and after his subsequent insolvency, Harold Parr, as trustee, filed the complaint here against Lawrence and Eleanor Rici, as defendants, praying the sum of $10,346.-20, as the balance due under the contract between them and the Hartzell beneficiaries, which contract the trustee adopted. In defense of this claim, the defendants pleaded the foregoing facts, all of which were established by the evidence, without dispute, and in addition, they pleaded that the recorded trust deed to them recites, as it does, that it is given in consideration of $15,000, “receipt of which is hereby acknowledged.” They claim that such facts establish payment, estoppel and laches. After commencement of this action, Fred G. Russell was substituted as trustee and as plaintiff, in the place of Harold Parr. On March 16, 1965, the trial court, after hearing the evidence without a jury, entered judgment for defendants, and for their costs, and against the plaintiff trustee. This appeal was thereafter perfected by the trustee who also asks leave here to amend the ad damnum of his complaint to “Fifteen Thousand and no/100 Dollars with interest at five per cent from March 10, 1959, to the date of judgment.”

In the case of In re Will of Hartzell, supra, the trustee was held liable for breach of trust to certain of the beneficiaries of Lewis Hartzell, for the loss of funds from the Rici purchase, occasioned by Spaulding’s misappropriation and insolvency. The theory of that case was, according to plaintiff, that his predecessor trustee was held liable for the acts of Spaulding because he permitted them by delegating the performance of acts he could not legally delegate. Thus, plaintiff reasons that defendants were also aware that they were dealing with a trustee who could not legally delegate the duty of collecting the balance of the contract purchase price to any other person, and accordingly, that defendants’ proof of payment to Spaulding does not establish payment to the trustee, since defendants are chargeable with knowledge of the legal limitations on the trustee’s authority.

A trustee is not without the power or authority to employ the counsel, assistance and services of an attorney to whom he may even entrust the possession of trust property, where it is reasonable to do so. Restatement, Trusts 2d, § 175(e); cf. 50 ALR 214, and 47 ALR 2d 1379. A trustee may even, on occasion, delegate authority to an agent to perform certain acts on his behalf if a person of ordinary prudence, under like circumstances, and in the management of his own affairs, would also ordinarily and reasonably delegate such duties. Restatement, Trusts 2d, § 171 (d). He may not delegate to others, however, what he could reasonably be expected to perform himself. Restatement, Trusts 2d, § 171. Thus, although some duties may be delegated, a trustee may certainly not delegate the entire administration of his trust. Restatement, Trusts 2d, § 171 (d). Furthermore, there are some acts which, even though a person of ordinary prudence in like circumstance, might delegate to an agent, a trustee may not. Thus, at Restatement, Trusts 2d, § 171(g), it is stated that a trustee ordinarily cannot appoint an agent to sell, but having made the contracts for these purposes himself, or fixed terms upon which such contracts may be entered, a trustee may then properly employ an agent to perform ministerial acts to consummate the transaction' The trustee being authorized in some instances to employ the services of an agent, or attorney, the law provides that the trustee will not in such instances be liable to the beneficiaries for the acts of such agents or attorneys, unless such acts constitute a breach of trust, and the trustee directed or permitted them, or failed to exercise proper supervision over the conduct of the agent. Restatement, Trusts 2d, § 225.

In the instant case, the sale and transfer of the trust real estate to defendants was proper. The court had authorized the sale, and the decree fixed terms identical with those in the contract. The mere employment by the trustee, of any attorney, for the preparation and delivery of a deed and collection of the proceeds, where no discretion was involved, would be an engagement for purely ministerial acts, and would not, of itself, be wrongful or constitute a breach of trust, where the trustee properly supervised the performance of his agent. In the case of In re Will of Hartzell, supra, upon which the trustee appears chiefly to rely, his predecessor was surcharged, in an action by the beneficiaries, not for the mere isolated act of delegating the ministerial duty of allowing his attorney to collect the sale proceeds, but because the trustee abdicated all of his duties and relinquished the same to his attorney, who upon collection of the money from the defendants was given also its exclusive control, supervision and management. He was thereby easily permitted, by the trustee, to purloin the trust estate. The defendants here, however, had no notice that Parr intended to leave the sale proceeds in Spaulding’s exclusive control after it was collected, or that the collection itself by the attorney was effected within a milieu of the trustee’s total relinquishment of all his duties and authority. Viewed apart from the trustee’s wrongful abdication of all his duties as trustee, of which defendants had no notice, the trustee’s simple delegation of authority to his attorney to exchange the deed upon the transferee’s payment of the purchase price, cannot be said, as a matter of law, to be so far beyond the ordinary limitations of a trustee’s authority as to require suspicion and create a duty of further inquiry. In Scott on Trusts, Vol III, § 326.6, p 2372, it is stated:

“[I]f third persons knowingly participate with a fiduciary in a breach of his obligations it is proper to hold them liable. It is quite a different matter, however, to compel them to supervise the conduct of the fiduciary and to hold them liable for failure to do so. A rule imposing such liability upon them makes it dangerous to deal with a fiduciary and seriously interferes with the proper performance by the fiduciary of his duties. It is right to require that one who knowingly purchases trust property from a trustee or other fiduciary whose conduct is prima facie wrongful should make a reasonable inquiry, and to hold that he cannot escape liability unless such inquiry would satisfy a reasonable man that the trustee was not committing a breach of trust. If the trustee’s conduct is not such as to excite suspicion, still it is held that the purchaser should make inquiry as to his authority to sell. But the rule that purchasers of trust property are bound to see to the application of the purchase money imposed too heavy a burden on purchasers and resulted in such an intolerable obstruction to the administration of trusts that the rule has been generally abolished. . . .” (Emphasis added.)

Under Illinois law, those who, in good faith, pay money to a fiduciary, which said fiduciary is authorized to receive, are not required to supervise the fiduciary’s conduct to see to the proper application of said money by the fiduciary. Ill Rev Stats, c 98, § 235. Plaintiff’s predecessor did in fact authorize his attorney to collect the sale proceeds from defendants, and so far as defendants are concerned, the transaction was consummated in accordance with a contract approved by a court decree and with the trustee’s authority. Nothing transpired which was “prima facie wrongful,” or which the defendants knew was wrongful, and therefore the defendants were not required to supervise the application of the sale proceeds by the trustee or his agents.

By his motion here to amend the ad damnum clause of his complaint, the plaintiff also seeks recovery from defendants of the additional amount of $4,653. This is the amount which defendants, under' the terms of the contract with the Hartzell beneficiaries, paid to the life tenant and Spaulding prior to Parr’s appointment as trustee. It is argued by plaintiff that the decree approving the sale to defendants established a price of $15,000, and that any sums previously paid by defendants directly to the beneficiaries may not be credited to the purchase price, since defendants are chargeable with constructive notice, from public records, that legal title was vested in a trustee. Accordingly, it is asserted that neither the beneficiaries nor their agents had capacity by contract to bind the trustee, and that evidence of payment to them is not evidence of payment to the plaintiff.

We think plaintiff’s motion, and the matters thereby raised, may not be allowed or considered, because there has been no effort by plaintiff to comply with the provisions of Ill Rev Stats, c 110, § 201.26, which requires that an affidavit accompany the application showing, inter alia, that no prejudice will result to the adverse party if the amendment sought is permitted. The original complaint states an action at law for the balance due on a contract of sale between the defendants and the beneficiaries, which contract is alleged to be an asset of the trust estate, apparently by ratification of the trustee. The theory of the proposed amendment is that plaintiff should be permitted in equity, to enforce the strict terms of the decree for sale, and that the aforementioned contract, and the payments made pursuant thereto, is not binding on the trustee. It seems evident that defendants would, in fact, be prejudiced if plaintiffs are not required to adhere to the theory upon which the cause was heard in the trial court. Bryant v. Lakeside Galleries, Inc., 402 Ill 466, at 474, 84 NE2d 412. Notwithstanding a statutory right to amend pleadings in the Appellate Court where the issues sought to be raised by amendment are supported by the facts in the record (Ill Rev Stats, c 110, §201.26), it is firmly established that a party may not try a case on one theory in the trial court, and on another theory in the court of review. Lewy v. Standard Plunger Elevator Co., 296 Ill 295, at 304, 129 NE 775. Had this question been raised in the trial court, defendants might have shown that the trustee received or was credited with the funds paid to the beneficiaries prior to the appointment of plaintiffs’ predecessor. The motion to amend is accordingly denied.

No error being shown, the judgment of the Circuit Court of Bureau County is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: STOUDER, J.

text:
    Robert Childers, d/b/a Roberts, Plaintiff-Appellant, v. State of Illinois Liquor Control Commission, Morris Muhleman, Local Liquor Control Commissioner of the City of Rock Island, Illinois and the City of Rock Island, Illinois, Defendants-Appellees.
    Gen. No. 65-47.
    Third District.
    January 24, 1966.

      Bell, Farrar, Scott & Cunningham, of Rock Island (Robert M. Bell, of counsel), for plaintiff-appellant.
    William G. Clark, Attorney General, of Springfield, and Stanley Lipczynski, Assistant Attorney General, of Moline (Dorothea O’Dean, of counsel), for State of Illinois Liquor Control Commission, Bernard C. Gillman, of Rock Island, for Morris Muhleman, and City of Rock Island, defendants-appellees.
   STOUDER, J.

On November 20, 1964, the Mayor of Rock Island, Illinois, as Local Liquor Commissioner for that city revoked appellant’s liquor license previously issued by the city of Rock Island. The Illinois Liquor Commission affirmed the action of the Rock Island Liquor Commissioner as did the Circuit Court of Rock Island County, reviewing the action of the Illinois Liquor Commission under the provisions of the Administrative Review Act. This appeal follows.

The circumstance which precipitated the instigation of proceedings by the Rock Island Liquor Commissioner was the charge that appellant, on October 26, 1964, sold liquor to a person under the age of 21 years in violation of a Rock Island City Ordinance and the Statutes of Illinois. No criminal proceedings were or have been instituted with respect to this ordinance violation.

After a hearing before the Local Liquor Commissioner of the city of Rock Island, said Commissioner in his written order of revocation, found that appellant had violated the Ordinance of the City of Rock Island and Statutes of State of Illinois by a sale of liquor to a person under the age of 21 years on October 26, 1964. The order further found that appellant had been convicted of a violation of the closing hours ordinance of Rock Island on February 28, 1964. Appellant filed his petition with the Illinois Liquor Commission for a review of the action of the Local Liquor Commissioner revoking his license.

At the hearing before the Illinois Liquor Commission the minor, to whom the alleged sale of liquor was made on October 26, 1964, testified in behalf of appellee. She testified that she had entered the tavern and was seated at a table in the company of three adult male companions. That one of the adults had purchased alcoholic drinks at the bar for the adults and a 7-Up for her, returning with the drinks to the table. She testified that although her companions had tried to get her to take a portion of their drinks she had refused. The minor’s testimony was the only evidence in support of the alleged ordinance violation by a sale of liquor to a minor on October 26, 1964.

The Mayor, Local Liquor Commissioner, testified in support of his order at the hearing before the Illinois Liquor Commission substantially as follows: that the city officials hadn’t been able to catch appellant on various matters and for that reason they revoked the license when he was brought in this time; that at the hearing before him he had stated he wanted to close the place on general principles; that “numerous killings, stabbings and shootings” had hurt the reputation of Rock Island and the local newspaper had called attention to many unfavorable incidents occurring in the area in which appellant’s establishment is located, there also being three other taverns located in the immediate area. From the cross-examination of the Mayor and the Chief of Police it appears that the “numerous killings” referred to the death from a heart attack of one man in a parked car in the parking lot behind appellant’s premises. The man was a known alcoholic and there was no evidence that his death was related to any misconduct of appellant. The “shooting” referred to shots having been fired from a car driving on the street in front of appellant’s premises and an incident between a husband and wife occurring in an alley behind appellant’s premises, neither of which were related to any misconduct of appellant. No criminal charges resulted from any of the incidents either against appellant or the parties involved.

The Chief of Police also testified that he had received a complaint from a person who claimed to have lost a diamond ring while asleep at appellant’s bar. Appellant admitted that such a complaint had been made but that the complainant had not purchased any alcohol in appellant’s tavern.

Other evidence at the hearing before the Illinois Liquor Commission consisted of the transcripts of court proceedings with respect to two previous violations of Rock Island Ordinances. The first was the record of conviction of a sale of liquor to a minor on June 23, 1963. This offense was not included as a finding in the Local Liquor Commissioner’s order of revocation of November 20,1964. The second transcript, mentioned in the Commissioner’s order of revocation, involved a closing hour violation to which appellant pleaded guilty on February 28, 1964. Subsequent to the after hours conviction, the Local Liquor Commissioner of Rock Island, after hearing, suspended appellant’s license for three days. The Illinois Liquor Commission adopted the findings of the Local Liquor Commissioner by reference, approved such findings and affirmed the action of the Local Commissioner.

Appellant, in seeking a reversal of the order of the Illinois Liquor Commission, contended in his action for judicial review in the Circuit Court, that the action of the Illinois Liquor Commission was against the manifest weight or was unsupported by substantial evidence and he had renewed that contention in this court.

The judicial function in the review of actions of administrative bodies has been often stated, namely that the action of the administrative body shall be deemed prima facie true and correct and that such administrative action will not be disturbed unless it is against the manifest weight of the evidence or is not supported by substantial competent evidence. Logan v. Civil Service Commission, 3 Ill2d 81, 119 NE2d 754.

In connection with the sale of alcoholic beverages it is well settled that the manufacture and sale of alcohol are peculiarly subject to the control of the legisladture in the exercise of its power to promote the public health, safety and welfare. No person has a vested property right in the sale of alcoholic beverages. It is also well settled that if the sale of alcoholic beverages be lawful, as it now is, our sense of fair play and justice requires that the regulations by the appropriate authorities and the enforcement of such regulations be not arbitrary or capricious. Shoot v. Illinois Liquor Control Commission, 30 Ill2d 570, 198 NE2d 497.

We shall first consider the evidence in support of the findings that appellant was guilty of a sale of liquor to a minor on October 26, 1964. In examining the record before us, we find that the only evidence concerning the alleged sale, is the testimony of the 17-year-old girl to whom the sale was allegedly made. We have scrutinized her testimony carefully and can only conclude that it contains nothing from which any sale to her can reasonably be inferred. Her testimony that she did not purchase any alcoholic beverages is uncontradicted. We therefore find nothing in the record to support the finding that any violation in fact took place on October 26, 1964. The finding of the Local Liquor Commission that such a sale took place is unsupported by substantial evidence and was therefore improper.

We next consider the testimony of the Mayor in his capacity as Local Liquor Commissioner and that of the Chief of Police as it appears from the record of their testimony before the Illinois Liquor Commission. Although there are no findings either in the Local Commissioner’s order or that of the Illinois Liquor Commission' relating to the testimony of these witnesses, we shall consider the inferences or conclusions which might be drawn from their testimony. Again we are concerned with appellant’s misconduct. When we consider the testimony against appellant, both on direct and cross-examination we find that several incidents had taken place in the general vicinity of appellant’s place of business, incidents which had resulted in adverse newspaper publicity. However none of the incidents related to any wrong doing on the part of appellant or in the conduct of his business. The good intentions of city authorities to deal with city problems should not and cannot be considered a substitute for evidence of appellant’s misconduct or wrong doing. It is fundamental that the authority to revoke a license for cause is limited to conduct or actions of the licensee or conduct or actions of others for which he is deemed responsible or chargeable.

Conversely a licensee cannot be charged with conduct over which he has no control. We find nothing in the testimony of the Mayor or Chief of Police from which any misconduct on the part of appellant can reasonably be inferred.

Lastly we consider appellee’s contention that even though the evidence does not support the sale of liquor to a minor on October 26, 1964, nor that appellant was in any way connected with the various disturbances above described, the record of two prior convictions is, of itself, sufficient to support the revocation. Subsequent to the last of these two prior convictions, the Liquor Control Commissioner suspended appellant’s license for three days.

The conduct of a retail liquor business is a continuing business. Therefore a strict application of the doctrine of res adjudicata is not applicable. However we believe that some effect must be given to an order of a Local Commissioner as to the issues determined by such order. A proceeding, once concluded, should preclude the assessment of further penalties in the absence of proof of additional misconduct. While we have been unable to find any Illinois cases on this point, Interboro Beverage Corp. v. Doran, 52 F2d 35, deals with a related question.

The Interboro Beverage case, supra, involved a prohibition administrator’s refusal to renew an annual permit. The facts showed that a prior such refusal had been appealed to the district court and there reversed. The administrator then refused the permit in the succeeding year, basing his refusal on the same evidence of misconduct as had resulted in the prior refusal. Upon appeal from the second refusal the court held that the administrator’s action could only be justified by new evidence of additional misconduct, the prior judgment operating as an estoppel on the facts. Although the Interboro Beverage case is, obviously, factually different from the instant case, nevertheless the reasoning therein employed is applicable, namely that once a determination has been made on the existing state of facts a further action based on the same facts is unjustified.

In the instant case the Local Liquor Commissioner, subsequent to the two convictions in question, suspended appellant’s license for three days. We believe that this disciplinary action constitutes an estoppel on the facts as of the date of the suspension order. Misconduct of a licensee, for which disciplinary action has previously been administered, may be considered in a subsequent proceeding by the local Liquor Commissioner only in conjunction with new evidence of misconduct. To hold otherwise would place the licensee in the position of continuing his business at the whim of the licensing authority. The exercise of such authority by the Local Liquor Commissioner we deem to be arbitrary and capricious.

Accordingly we find that the order of the Illinois Liquor Commission was unsupported by substantial competent evidence and is, therefore, erroneous, and that the judgment of the Circuit Court of Rock Island County was also erroneous. The judgment of the Circuit Court of Rock Island County is therefore reversed.

Judgment reversed.

CORYN, P. J. and ALLOY, J., concur.


author: MR. JUSTICE MORAN

text:
    People of the State of Illinois, Appellee, v. Charles W. Zaeske (Impleaded), Appellant.
    Gen. No. 65-51.
    Second District.
    January 24, 1966.

      Richard W. Husted, of Elgin, for appellant.

      ■ William R. Ketcham, State’s Attorney, of Geneva, and Raymond M. Strass, Assistant State’s Attorney, of Carpentersville, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Defendant, Charles Zaeske, Billy Alston and Julian Alston were indicted in Kane County for theft of a Chevrolet automobile from Ross Rambler, an auto sales lot in Elgin, Illinois. Both Alstons pleaded guilty and applied for probation. Zaeske was tried as an accessory before the fact and was found guilty by a jury.

He appeals charging that the unsupported testimony of the Alstons was insufficient to sustain a guilty verdict, that defendant was not proved guilty beyond a reasonable doubt and that prejudicial error occurred during the trial.

A proper consideration of defendant’s arguments requires a review of the evidence offered. It appears that the prosecution called eleven witnesses. The defense called defendant, his wife and five character witnesses.

For the People, Billy Alston testified that Zaeske, who ran a used car lot and garage, hired him as a body and fender man at $60 per week. About two weeks, before the car theft, Zaeske said something about going to a used car lot and making a key. On the day of the theft, a Saturday, Zaeske told Billy and his father, Julian Alston, that he would get a car at Ross Rambler, have a key made and return the car for Billy to steal that night. Later that day Billy saw Zaeske give the elder Alston a key. He identified People’s Exhibit No. 1 as the key given by Zaeske to his father. He testified Zaeske told him to take the car to Alabama and sell it. The proceeds were to be divided three ways. In addition, the Alstons were to take a 1949 dump truck belonging to Zaeske to Alabama and sell it. Billy then took his father to the hotel and went to his own home in the dump truck. About 8:30 or 9:00 o’clock that night, he drove the dump truck to Route 58 and Barrington Road where he was to meet his father, who would be driving the stolen Chevrolet automobile. When he stopped at the intersection, the truck was struck in the rear by an automobile which turned out to be the stolen Chevrolet driven by his father. They left the stolen and now damaged vehicle at the intersection and returned to defendant’s garage in the truck. Ten minutes after their arrival defendant Zaeske came to the garage. Billy told him about the collision and Zaeske gave him $10 for bandages for the elder Alston’s injured chin.

On cross-examination Billy testified he could tell a Ford key from a Chevie key, but could not otherwise identify the key. He said he could wire around or jump an ignition so a car would start without a key. At the time of the collision he had title papers to the dump truck, but these papers were not signed by defendant Zaeske.

Julian Alston testified that on the day of the theft, Zaeske gave him the key and told him to go to Ross Rambler, steal the Chevrolet, take it to Alabama and sell it. Billy drove him to the Lee Hotel where he stayed until about 8:45 p. m. He then left and walked to Ross Rambler. He took the Chevrolet, using the key Zaeske had given him, drove to Route 58 where he met Billy and was following him when the accident occurred. They returned to the garage in the dump truck but he did not talk to Zaeske. On cross-examination Julian Alston acknowledged he had previously been convicted of murder and had served time in Alabama. He was then on parole. He had experience with parole and probation and knew that one of the chief considerations is the recommendation and attitude of the State’s Attorney. He testified Zaeske gave him the key or he got it from the desk. He had no title papers for the Chevrolet.

Witness Ralph Steleaskey worked at Ross Rambler. He testified that at about 10:30 a. m. to 11:00 a. m. on the day of the theft, Zaeske came to borrow a 1960 Chevrolet to show to a customer. Zaeske returned the car about 12:30 p. m. or 1:00 p. m., and the next time the witness saw the car was after the theft and the accident.

Gerhardt Moosman is a locksmith. He testified that about 11:00 a. m. to 11:15 a. m. on the day in question, Zaeske came in to have a key made for a car which he said had just been sold. He made a key which he identified as Exhibit No. 1. He gave the key to Zaeske and was paid for his work. He testified that a person not skilled as a locksmith could not recognize a particular key simply from handling it.

Clark Houghtby testified he saw Zaeske having the key made by Moosman. Zaeske said he was getting the key for a party that was going to buy a car.

State Police Trooper John J. Jeskula testified to investigating the accident scene and finding a key similar to Exhibit No. 1.

Herbert Horn, sales manager at Ross Rambler, testified his organization had to establish ownership of the Chevrolet to obtain it from the police. The car had a brand new ignition key similar to People’s Exhibit No. 1.

Police Officer Thomas Stegle testified that nine days after the theft he spoke to Zaeske and Zaeske said he borrowed the Chevrolet to show to a prospective customer whose name he could not recall. Stegle looked at the dump truck. The cab was painted red and the body black. Zaeske told him there was universal trouble with it and it would not have been in running condition. Nothing was said about the truck having been stolen. Later that day Stegle talked to Zaeske at the Elgin Police Station and Zaeske denied having the key made. Zaeske told him Billy Alston had stolen the Chevrolet and that Alston was then out on the road in one of Zaeske’s car. Stegle went outside to Zaeske’s car and found Alston and had him brought into the station. Zaeske then charged Billy with stealing the truck. Alston said Zaeske borrowed the car from. Ross Rambler, had the key made, gave the key to Billy’s father and told him to steal the car and take it to Alabama with Billy following in the dump truck.

For the defense, Eva Zaeske, defendant’s wife, testified that on the evening in question her husband did not leave his home and received no telephone calls.

Defendant Zaeske took the witness stand and testified that he had been in the used car business twenty-three years before his arrest. Billy Alston hung around Zaeske’s place of business, but received no pay. He had purchased the dump truck for $75 and the universal joint was bad. On the day in question, he called Ross Rambler and arranged to borrow the Chevrolet to show to a customer. He went to the Ross lot, picked up the car and key, and returned to his own lot about 10:30 a. m. His customers were not there so he went to a drive-in restaurant for an early lunch. When he returned to his lot, the prospective customer was there and went on a demonstration ride in the Chevrolet. The customer spoke about wanting a second key and on the trip to return the car to Ross Rambler, he stopped at the locksmith’s shop where Moosman made the second key.

Zaeske further testified that after returning the car to Ross, he went back to his own lot. He emptied his pockets onto his desk and left several items there, including the second key. The two Alstons were present at the time. He denied speaking to the Alstons about taking the car or about taking it to Alabama, and he stated he did not leave his home or talk to either Alston that evening. He went on to state that three days later he noticed the ignition on the dump truck had been jumped and there was blue paint on the rear end. He declared that when he first spoke to Officer Stegle he told him he had a key made.

The defense also presented five eminent and highly reputable witnesses who testified to defendant’s good reputation for veracity and law-abiding behavior.

On rebuttal, the State called a witness, Richard Smith, who testified that he was employed by Zaeske and was present when Zaeske said he had borrowed a car, had a key made for it and that, that night the Alstons could take the car with the new key. This witness also related that Billy Alston did light mechanic work, body work and painting for Zaeske and had driven the dump truck home a couple of times.

Defendant contends that because the Alstons had pleaded guilty, were awaiting the results of their application for probation and had not yet been sentenced, that a conviction of defendant cannot stand on their testimony alone. At common law the uncorroborated testimony of an accomplice was sufficient to warrant a conviction if it satisfied a jury beyond a reasonable doubt. This rule has been followed in Illinois. People v. Dabbs, 870 Ill 378, 19 NE2d 175 (1939); People v. Cohen, 376 Ill 382, 33 NE2d 593 (1941), (overruled on other grounds, see Schroers v. People, 399 Ill 428, 78 NE 2d 219, 1948). However, where, as here, it appears that the witness has hopes of reward from the prosecution, his testimony should not be accepted unless it carries with it absolute conviction of the truth. People v. Grove, 284 Ill 429, 120 NE 277 (1918); People v. Hermens, 5 Ill2d 277, 125 NE2d 500 (1955).

From our review of the evidence we find ample evidence to corroborate the testimony of the Alstons that Zaeske masterminded the theft of the Chevrolet. Moos-man and Houghtby established the making of the second key; Stegle established defendant admitted repainting the truck, defendant’s denial of having the key made, his denial of employing Billy Alston, his story about Billy’s being out on the road when he was in fact parked near the police station waiting for defendant and the initial failure of defendant to say anything about the truck being taken; and finally, witness Richard Smith directly established Zaeske’s participation in the plans for the theft.

We agree with defendant’s contention that the taking of the car to show to a customer and having the key made to satisfy the customer’s request, if taken by itself, is plausible. We further agree that the Alstons had good reason to cooperate with the prosecution and that defendant appears to be a man of means who would be foolish indeed to participate in a scheme to steal a used automobile simply for the possibility of obtaining a third of the resale proceeds while at the same time giving up two-thirds of the sale price of the dump truck. However, we feel the record presents sufficient corroboration to support the verdict of the jury.

Defendant also urges that the Alstons’ testimony was so illogical and conflicting as to be unworthy of belief. We have carefully reviewed each of the discrepancies mentioned in defendant’s brief and in addition note that the Alstons’ testimony is conflicting on whether they had already met on the highway before the collision and on whether Zaeske came to the garage during the evening. Nevertheless, we feei that these discrepancies are not so gross as to vitiate completely their testimony establishing defendant’s participation in the crime. It would be a rare occasion indeed not to find discrepancies in the testimony of various witnesses to any given chain of events.

We also note that the witness Richard Smith testified that the conversation between Zaeske and.the Alstons took place at 11:00 a. m. on the day of the theft, whereas it must have taken place, if at all, after noon. This is another discrepancy which proves that witnesses are not always perfect in their recollection or restatement of an occurrence; however, such an error does not necessarily render the testimony of the witness unworthy of belief. People v. Clay, 27 Ill2d 27, 187 NE2d 719 (1963).

It is finally urged that prejudicial and reversible error was committed by the State’s Attorney in cross-examination of defendant and in cross-examination of one of defendant’s character witnesses. During cross-examination of defendant he was asked about preparation of sales tax forms for cars sold in 1964; he was asked about taking out a mortgage on some real estate and he was questioned concerning his drinking habits in August, September and October of 1964. The State’s Attorney in argument over the objections to his questions said that the State was attacking the veracity of the defendant and was attempting to show motive. We believe the questions asked were proper cross-examination and we fail to find, as defendant suggests, that these questions were designed to prove that defendant had committed other crimes. Where, as here, the defendant elects to take the witness stand, he makes himself subject to cross-examination and impeachment, just as any other witness. People v. Ladas, 12 Ill2d 290, 146 NE2d 57 (1957).

The comments made by the State’s Attorney were made during argument on defense objections to questions on cross-examination. We find no error in these statements. Likewise, we find no error in the question asked of the character witness to which objection was sustained.

The judgment of the Circuit Court of Kane County is affirmed.

Judgment affirmed.

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


author: GOLDENHERSH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Maurice Mitchell and Gary V. Lillie, Defendants-Appellants.
    Gen. No. 65-38.
    Fifth District.
    January 24, 1966.

      Boswell & Boswell, of Harrisburg, for appellants.
    Robert V. Wilson, of Harrisburg, for appellee.
   GOLDENHERSH, P. J.

Defendants appeal from the judgment of the Circuit Court of Saline County finding them guilty of violation of the conditions of their probation. The court ordered the probation terminated and sentenced defendants to the penitentiary for not less than 15 nor more than 20 years.

The record shows that defendants appeared for arraignment with employed counsel, waived indictment and thereupon, after proper admonition, entered pleas of guilty to an information charging burglary. The court accepted the pleas of guilty and entered judgments thereon. The court inquired whether The People or the defendants desired to offer evidence in mitigation or aggravation. Defendants’ counsel moved that defendants be admitted to probation, the State’s Attorney recommended the motion be allowed, and defendants were placed on probation for a period of three years.

On the same day on which defendants were admitted to probation, the Governor of Illinois issued an executive warrant ordering the arrest of defendants for extradition to Kentucky. They were taken into custody a week later, and approximately 4 months later, were given into the custody of an agent of the state of Kentucky for delivery to that state.

Approximately 7 months after defendants were delivered to Kentucky, the State’s Attorney filed a petition charging violation of the conditions of defendants’ probation. A warrant was issued, defendants were apprehended in Georgia, waived extradition, and were returned to Illinois.

Defendants filed a motion to strike the petition charging violation of probation on the ground that the court was without jurisdiction, because upon delivery of the defendants to Kentucky, the court lost jurisdiction of the defendants. The circuit court denied the motion, defendants answered the petition, the court heard evidence on the petition, found defendants had.violated the conditions of probation, imposed sentence, and this appeal followed.

Defendants contend that the circuit court lost jurisdiction for all purposes when defendants were delivered to the state of Kentucky, and in the alternative, if the court had jurisdiction, the evidence fails to support the finding that defendants had violated the conditions of probation. Finally, defendants urge that if the judgment be affirmed, the sentence imposed is unduly harsh and should be reduced.

In support of their contention that the court was without jurisdiction, defendants rely on People ex rel. Barrett v. Bartley, 383 Ill 437, 50 NE2d 517, 147 ALR 935. Defendants argue that had they been incarcerated in the penitentiary at the time of their extradition and delivery to Kentucky, under the holding in Barrett v. Bartley, further jurisdiction over them would be deemed waived. They further contend that in People ex rel. Barrett v. Bardens, 394 Ill 511, 68 NE2d 710, the Supreme Court held probation to be a substitute for imprisonment, and it follows, therefore, that the rule enunciated in Barrett v. Bartley applies.

We disagree with defendants’ contention. Barrett v. Bartley was decided in 1943, prior to the enactment of the Uniform Criminal Extradition Act, ch 60, § 18 et seq., Ill Rev Stats 1965, in which there is an express nonwaiver by the asylum state which honors the extradition request of another state. Absent the enactment of the Extradition Act, we question the applicability of Barrett v. Bartley in view of the language on page 442, where the court said: “Had McLaughlin been extradited while absent from the prison and while on parole it would have created a different situation.” Although not stated, the distinction appears to arise from the fact that a parolee continues under the jurisdiction of the Parole and Pardon Board until discharged. A person admitted to probation continues subject to the jurisdiction of the court. Ch 38, § 117-1 (c), Ill Rev Stats 1965.

Subsequent to the hearing on the petition for revocation of probation the court enumerated the paragraphs on which it found each defendant guilty. As to the defendant, Lillie, the evidence sustains the court’s finding on each paragraph with the exception of paragraph 9, on which no evidence was offered. As to defendant, Mitchell, the court’s findings are sustained by the evidence. The evidence amply sustains the judgment of revocation of the defendant’s probation and although the court’s finding on paragraph 9 as to Lillie must be set aside, the judgment of revocation is affirmed.

There remains for consideration defendants’ contention that the sentence imposed is unduly harsh and should be reduced. The record shows that in April, 1964, the State’s Attorney joined with defense counsel in recommending defendants be admitted to probation. Less than one year later, another judge imposed sentences of not less than 15 nor more than 20 years. Assuming defendants to be guilty of all of the violations of the conditions of probation charged in the petition for revocation, the sentences appear unduly severe. Nor are we persuaded that the record warrants the imposition of the same sentence on each defendant, for the reason that although the degree of complicity in the original offense appears equal, there is some variance in the nature of the violations of conditions of probation charged in the petition for revocation.

Under the provisions of the Code of Criminal Procedure of 1963, this court is vested with power to reduce the sentence imposed by the trial court, ch 38, § 121-9 (b) (4), Ill Rev Stats 1965. The intelligent exercise of such power requires that the record reflect the information contemplated by the provisions of section 1-7 (g) of the Criminal Code of 1961, ch 38, § 1-7 (g), HI Rev Stats 1965. In People v. Taylor, 33 Ill2d 417, at page 424, 211 NE2d 673, the Supreme Court, through Mr. Justice Underwood said, “We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill Rev Stats 1963, c 38, par 121-9 (b) (4)), such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.” In the absence of an opportunity to review the evidence adduced at the hearing in aggravation and mitigation, this court is unable to review the propriety of the sentence imposed. This court has stated that such hearing may be waived (People v. Harris, 66 Ill App2d 46, 213 NE2d 588), but this record contains nothing to indicate any waiver of the right to present such evidence.

For the reasons herein set forth, the judgment of the circuit court revoking the probation of the defendants is affirmed, and the cause is remanded to the Circuit Court of Saline County with directions to vacate the sentence imposed, and for further proceedings thereafter consistent with this opinion.

Judgment affirmed, cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON DAVIS, J.,

text:
    Lind Investments Corp., James Boal and Kobco, Inc. (Kobco, Inc., Appellant), v. Glendoran A. Seegers, et al., and Sisco, Inc., Appellee.
    Gen. No. 64-108.
    Second District.
    January 24, 1966.

      Paul T. Kalinich, of Glen Ellyn, for appellant.
    Ervin F. Wilson, of Elmhurst, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of DuPage County wherein the Chancellor had entered judgment in favor of the Appellant, Kobco, Inc., in the amount of $3,561.12. In the original complaint plaintiffs charged the defendants, Sisco, Inc., and certain other individuals with conspiracy to intentionally inflict harm upon the plaintiff, Kobco, Inc., and prayed for an accounting on certain jobs that Sisco completed for Kobco after Kobco had become financially embarrassed. The case was referred to a Master who found against plaintiffs and in favor of defendants on the conspiracy charge and after a detailed and voluminous accounting found the defendant, Sisco, owed the plaintiff, Kobco, $3,561.12. Objections were filed by all parties to the Master’s report. After full hearing the lower court dismissed out the individual defendants and entered judgment against Sisco in confirmation of the Master’s report in the amount of $3,561.12.

Kobco contends that it is entitled to a judgment in the amount of $28,890.27 and urges that the Master erred in allowing Sisco certain deductions. $23,000 of this amount which is indicated as a receipt is claimed by Kobco to be payment for work done by Sisco. Sisco’s contention is that this amount was advanced to cover material and labor costs during construction. In reviewing the evidence relative to this position we find Kobco presented no evidence that the $23,000 was anything but what the defendant said it was—an advance to cover costs during construction.

The Master found at the time Sisco assumed the responsibility for the completion of the Kobert Taylor Homes’ job the parties understood that 1,076 units were required. Kobco’s subcontract for the installation of this job read as follows: “installation of Stairbuilder units and all landing steel for 20 buildings—16 floors each at price of $45,000.00.” It is apparent that the number of units was not specified and that the completion of the bid for this work necessitated furnishing 1,260 units. We assume that Kobco examined the plans and specifications for the job in the ordinary course of business before making the bid and that Kobco, to complete the contract, would be required to install 1,260 units. Since this was Kobco’s contract which Sisco was required to complete, we find that the Master did not err in allowing Sisco to charge in the account the cost of the extra units.

Plaintiff next urges that the allocation of certain disbursements, namely cost of supervision, accounting services, rental of equipment and workmen’s compensation, were not direct costs but were properly includible in the agreement as overhead expense. The arrangement between the parties specified a credit for all direct expense, out-of-pocket expense, 10% for overhead and 19% for profit, to be allowed to Sisco in the final accounting. Plaintiff in his brief addresses our attention to the distinction between “overhead” and “direct costs,” ignoring the provision for the allowance of “out-of-pocket” expense. Without the benefit of an interpretation of these phrases from the briefs, or an indication from expert testimony on the prevailing custom and usage of the nomenclature in sound accounting procedure, we conclude these items are included within the concept of “out-of-pocket” expense.

The last point urged for reversal is that the sales commissions due on the various subcontracts assumed bySisco were not direct expense but were properly allocated to overhead, and were to be accounted for in the 10% provision designated as overhead. It appears that Kobco had incurred this liability prior to the time Sisco took over the subcontracts. Here, again, the distinction between direct and overhead expense is qualified by the item “out-of-pocket” expense, and we conclude that this charge falls within the category of out-of-pocket expense.

While the findings of a Master are not entitled to the same weight on review as the verdict of a jury, they are entitled to due weight upon review and where they have been approved by the Chancellor, a reviewing court is not justified in disturbing them unless they are manifestly against the weight of the evidence. Majewski v. Gallina, 17 Ill2d 92, 99, 160 NE2d 783; Gallagher v. Girote, 23 Ill2d 170, 172, 177 NE2d 103; Barker v. Barker, 36 Ill App2d 20, 27, 183 NE2d 518. We find nothing in the record before us to indicate the court below did not properly find the facts and apply the law thereto.

Judgment affirmed.

MORAN, J., concurs.

DAVIS, J.,

specially concurs.

I concur in the ultimate result reached by affirming the judgment below but I would reach the same result by dismissing the appeal for failure of appellant to comply with Rule 38 of the Supreme Court and Rule 6 of this Court (Ill Rev Stats 1965, chap 110, pars 101.38 and 201.6). The appellant’s abstract of record does not set forth the judgment appealed from and otherwise flagrantly violates the foregoing rules._ See: Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 294-297, inclusive, 210 NE2d 614. (2nd Dist 1965.)


author: ABRAHAMSON, Judge, presiding.

text:
    The People of the State of Illinois, Appellee, v. Eugene F. Shockey, Appellant.
    Gen. No. 64-112.
    Second District.
    January 24, 1966.

      John R. Snively, of Rockford, for appellant.
    William R. Nash, State’s Attorney, and Alfred W. Cowan, Jr., Assistant State’s Attorney, Both of Rockford, forappellee.
   ABRAHAMSON, Judge, presiding.

This is an appeal from the Circuit Court of the 17th Judicial Circuit, Winnebago County, wherein the defendant was found guilty of the crime of forgery by a jury, and the presiding judge sentenced him to the penitentiary for a term of not less than three nor more than seven years.

On March 12th, 1964, the owner of the Pryor Baking Company in Rockford, Illinois, found that his plant had been broken into and that a check protector and a check book were missing. Two days later Eugene Shockey and his brother, Porter Shockey, were found in Bloomingdale, Illinois, and in Eugene’s Chevrolet automobile the police found the check protector and check book. On May 5th, 1964, two separate indictments were returned by the Grand Jury, one for the offense of burglary and one for forgery. He was first tried for the offense of burglary and was found guilty by a jury. Subsequently, the instant proceeding was prosecuted.

Defendant alleges a multitude of errors were committed in the court below. First, he attacks the indictment as being insufficient as to form as well as to substance. He complains that the caption of the indictment was defective. This contention is without merit. It has consistently been held by the courts of this State that it is the body of the indictment rather than its caption which is important and if the body specifically states the essential elements of the crime and is otherwise free from defect, defects in the caption will not cause it to be invalid. People v. Sellers, 30 Ill2d 221, 223, 196 NE2d 481; People v. Duden, 3 Ill2d 16, 119 NE2d 742. In People v. Shaw, 300 Ill 451, 133 NE 208, the Supreme Court held that errors in the caption of the indictment are not material.

Defendant secondly claims that the body of the indictment was defective in that the location of the crime was not stated as definitely as could have been done as required by section 111-3 of the Criminal Code of Procedure. Here, in three counts, the defendant was charged with committing a forgery in the County of Winnebago by drawing three separate checks on the First National Bank and Trust Company of Rockford. Defendant relies on People v. Blanchett, 55 Ill App2d 141, 204 NE2d 173. However, this case on appeal was reversed by our Supreme Court in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97. See also People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323; People v. Headrick, 65 Ill App 2d 169, 212 NE2d 102; People v. Edwards, 62 Ill App2d 241, 210 NE2d 822.

Defendant next contends that he was put in jeopardy twice because the offense of burglary and the offense of forgery arose out of the same transaction, and complains that the trial court did not permit him to introduce evidence to this effect. Whether or not a prior conviction constitutes jeopardy is a question of law and no evidence concerning it should be put before the jury. People v. Flaherty, 396 Ill 304, 308, 311, 71 NE2d 779. The defendant can hardly maintain that burglary and forgery are identical crimes. While the offenses in question did not arise out of the same transaction, such circumstance does not affect the question of jeopardy. People v. Cuicci, 8 Ill2d 619, 629, 137 NE2d 40. In the Flaherty case, supra, at page 309, the Court stated:

“If the offenses are distinct in law, the defense of former jeopardy is not available, regardless of how closely they are connected in point of fact.”

Defendant argues that evidence of his participation in the burglary of the check protector machine and the check book and evidence of his having passed a second forged check should not have been admitted in evidence. The indictment charged the defendant with having forged a check payable to one Ray Olson, which check was also dated March 12, 1964. The record does not disclose which check was first made and passed. • We do not deem it relevant as to which check was passed first as we believe the making and passing of these checks was all part of a peculiar plan to commit a particular offense. This plan included the burglary and theft of the check protector and check book. We believe evidence as to the burglary is admissible as it showed motive and intent and the existence of a common scheme. We believe the writing of the checks is evidence of a peculiar plan to commit the offense of forgery and is therefore admissible. People v. Lehman, 5 Ill2d 337, 343, 125 NE2d 506; People v. Botulinski, 392 Ill 212, 64 NE2d 486; People v. Tranowski, 20 Ill2d 11, 16, 169 NE2d 347. Where the evidence of other crimes tends to prove motive or intent, indentity, knowledge, absence of mistake or accident, it is admissible against defendant. People v. James, 62 Ill App2d 225, 232, 210 NE2d 804.

Defendant alleges that certain comments made by the Judge during the course of the trial were prejudicial to him. We have examined carefully the colloquy between counsel for defendant and the court and find that the remarks of the judge which defendant claims were prejudicial, were provoked by the conduct of his attorney. We have also carefully reviewed the entire record and find the evidence of the guilt of the defendant is overwhelming. Even if the statements of the judge constituted error, it is not every error that will constitute grounds for reversal. People v. Sleezer, 9 Ill2d 57, 62, 136 NE2d 808.

The defendant also claims that he was prejudiced by an unreasonable search and seizure; by the introduction of an uncertified copy of a list of automobile licenses for 1964 issued by the Secretary of State and' that his brother, Porter Shockey, was compelled to give evidence against himself. We find no merit in any of these contentions.

When the defendant was arrested, the arresting officer was examining defendant’s driver’s license when he noticed the check book and check protector in the car. It is not a search to observe what is in open view. A search implies an invasion with some kind of force either actual or constructive. People v. Cattaneo, 6 Ill2d 122, 125, 126 NE2d 692. The ownership of the car to whom license number AF 9320 was issued was testified to by the defendant’s brother. Introduction of the uncertified list of automobile licenses, under the circumstances, while technically hearsay evidence does not constitute reversible error.

When defendant’s brother was called as a witness, he refused to testify on the basis of self-incrimination. The court pointed out that the witness had been granted immunity. The defendant claims the immunity order was not proper. However, the defense of self-incrimination is a privilege that belongs to the party testifying and is not available to third parties. Samuel v. People, 164 Ill 379, 385, 45 NE 728; Bolen v. People, 184 Ill 338, 340, 56 NE 408; Chicago v. Lord, 3 Ill App2d 410, 418, 122 NE2d 439.

Defendant urges for reversal that the evidence against him is insufficient to sustain the conviction. A review of the testimony discloses that witnesses other than the accomplice, his brother, identified the defendant, testified as to conversations had with him and the cashing of the check in question. The weight of the evidence and the credibility of the witnesses are questions for the jury to determine and the court on review should not substitute its judgment for that of the jury on those questions. People v. Switalski, 394 Ill 530, 541, 69 NE2d 315; People v. Kirilenko, 1 Ill2d 90, 97, 115 NE2d 297; People v. Goard, 11 Ill2d 495, 500, 144 NE2d 603.

The defendant’s final ground is that the punishment is excessive and that if the cause is not reversed that this court should reduce the punishment imposed by the trial court. The punishment is well within the limits cited by the Legislature. We find nothing in this record upon which a determination could be made as to whether or not the trial court abused its discretion in imposing the sentence.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


text:
    Frank Viggiano and Cecelia Viggiano, His Wife, et al., Plaintiffs-Appellants, v. City of Elmhurst, a Municipal Corporation, Defendant-Appellee, and Richard H. Stolt, et al., Intervenors-Appellees.
    Gen. No. 64-118.
    Second District.
    January 24, 1966.

      Corrigan and Mackay, of Wheaton, for appellants.
    Edward J. Yertovec and Thomas H. Price, both of Elmhurst, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal arises from an order dismissing a declaratory judgment action, wherein the plaintiffs sought to have declared as void a zoning ordinance covering a triangular shaped parcel of property in the City of Elmhurst. The construction of the Congress Street Expressway and the Tri-State Tollway to the north and east of the subject premises resulted in the formation of the triangle. It is composed of some forty-three lots, twenty-nine of which are here in controversy. All of the lots are zoned residential and are completely surrounded by like uses.

The triangle is formed by North Avenue on its south boundary, Berteau Avenue on its westerly boundary and DuPage Street on its easterly and southeasterly boundary. The Toll Highway lies immediately east and adjacent to DuPage Street. There are seven houses located within the triangle and numerous houses on streets in both the southerly and westerly directions. There is no dispute as to the appropriate zoning of the subject property prior to the construction of the new highways. All of the parties agree that the property should have been zoned for residential purposes. In fact, the zoning was residential and the property was being developed in accordance with the zoning.

In the plaintiff’s view the construction of the Highway system and the increased traffic brought about as a result of that construction, has changed the circumstances to such an extent that residential zoning may not be upheld. The plaintiff applied for a rezoning of the premises and his application was denied by the local authorities. This action followed and the trial court found that the decision of the City was not arbitrary.

The factors to be considered in a zoning case are familiar and need not be repeated. (See First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 130 NE2d 267 (1955)).

Suffice to say that the Legislature has wisely decided to vest zoning discretion in the local authorities. We cannot interfere unless they have exercised their discretion arbitrarily. Since the action of the local authorities is presumed to be correct, the issue before us is whether or not the final decision is arbitrary and without some foundation in the public health, safety, and welfare.

The most important of all of the factors to be considered in a zoning case is the use and zoning of surrounding properties. As was said by the Supreme Court in Gregory v. City of Wheaton, 23 Ill2d 402, 406, 178 NE2d 358 (1961), “In determining the validity of a given zoning ordinance this court considers of paramount importance the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those are uniform and established.”

Applying the surrounding use standard to the subject case leaves little doubt as to the outcome. The record indicates that all of the surrounding property is zoned and used for residential purposes. To rezone the subject property for commercial purposes as requested by the plaintiff would be to insert a zoning classification in an area where no such classification exists today. In this connection we note the plaintiff’s real estate expert characterized the area as residential and indicated that it would be poor zoning to rezone a portion of the triangle and not the balance as is proposed by the plaintiff. In this state of the record we cannot say that the local authorities were arbitrary in refusing to grant the plaintiff’s petition.

The touchstone of the plaintiff’s case concerns the effect of increased traffic around the subject property. There is no question that the traffic has increased as a result of the construction of the Toll Highway, but the issue is—is this single factor under the circumstances presented in this case of overriding importance ?

The plaintiff has cited a number of cases which we believe contain distinguishing factual differences. In Tews v. Woolhiser, 352 Ill 212, 185 NE 827 (1933), the subject property was a triangular tract in the Village of Winnetka. The cases seem analogous to this point, but the difficulty comes in the fact that in that case the property in question was completely surrounded by property zoned or used for commercial purposes and abutting a railroad track. This is not true in the case at bar, since as we have pointed out, the subject property is surrounded by property zoned and used for residential purposes.

In Petropoulos v. City of Chicago, 5 Ill2d 270, 125 NE2d 522 (1955), there were gasoline service stations and other non-residential uses across the street from the subject property. In Exchange Nat. Bank v. County of Cook, 6 Ill2d 419, 129 NE2d 1 (1955), the premises were surrounded by industrial uses.

The use and zoning of surrounding property and not traffic was the heart of all of the cases cited to us by the plaintiff. In each case the surrounding property was zoned or used for the very use desired by the property owner. In those instances the court held that a property owner had the right to do what his neighbors did without regard to the traffic.

It appears to the court that traffic will always be with us. Indeed, ten years from today we may look back and consider today an era of the open road. We cannot consider traffic of overriding importance in this case.

We have thoroughly examined the record in this case. The premises appear to be located in one of the fine residential neighborhoods of the City of Elmhurst. There are no uses like those proposed by the plaintiff in the area. We cannot say that the local authorities and the trial court, in refusing to insert those uses, were arbitrary. Therefore, judgment is affirmed.

Judgment affirmed.

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