text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald R. Brausam, Defendant-Appellant.
    Gen. No. 66-149M.
    Second District.
    June 14, 1967.

      John A. Zaleski, of Fox Lake, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan, and William G. Rosing, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a judgment entered by the trial court finding the defendant, Donald R. Brausam, guilty of drag racing in violation of the provisions of section 48.1 of the Uniform Act Regulating Traffic on Highways. (Ill Rev Stats 1965, c 95%, par 145.1.)

The charge against the defendant was initiated by an unverified “Illinois Uniform Traffic Ticket and Complaint.” It was in the form prescribed by Supreme Court Rule, par C, relating to “Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.” (SHA, c 110, par 102.1; also see: Ill Rev Stats 1965, c 16, pars 81-85 inch) The defendant contends that the judgment should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of “drag racing.”

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the • complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill2d 475, 216 NE2d 147, (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill Rev Stats 1965, c 16, pars 81-85 incl.; c 38, pars 107-9, 107-11, 107-12 and par 111-3 (a) (b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483:

“The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill Rev Stats 1965, chap 38, par 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (SHA, chap 38, pars 107.11; 107.12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill Rev Stats 1965, chap 38, par 111-3 (b).
“In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.
“The adoption by this court of the rule which authorized the use of the unverified form of Rlinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.”

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill Rev Stats 1965, c 38, par 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. People v. Harding, supra, 482, 483; Village of Willowbrook v. Miller, 72 Ill App2d 30, 34, 217 NE2d 809, (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

The defendant further contends that the complaint was defective on the ground that it failed to sufficiently charge him with the offense of drag racing, in that an essential element thereof is that the defendant engaged in a racing competition; and that the omission of this allegation in the complaint rendered it fatally defective. The traffic ticket and complaint charged the defendant with committing the offense of “drag racing in violation of section 48.1 of the UART, on July 25, 1966, at 9:35 p. m., at North Avenue — west of Trevor Rd. in Lake County, Illinois.” (Ill Rev Stats 1965, c 95%, par 145.1.)

Section 111-3 (a) of the Criminal Code (Ill Rev Stats 1965, c 38, par 111-3(a)) sets forth the requisites for a valid criminal complaint:

“A charge shall be in writing and allege the commission of an offense by:
“ (1) Stating the name of the offense;
“(2) Citing the statutory provision alleged to have been violated;
“(3) Setting forth the nature and elements of the offense charged;
“(4) Stating the time and place of the offense as definitely as can be done; and
“ (.5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.”

Defendant’s contention is that the requirements of subparagraph (3) above are not met, as the necessary element of racing or competition is not alleged. In answering defendant’s contention, we must keep in mind that the question before this court is whether the complaint was so defective that it did not charge an offense. That was the issue raised by defendant’s motion in arrest of judgment and it is all that we are called upon to decide. People v. Blanchett, 33 Ill2d 527, 530, 531, 212 NE2d 97 (1965).

The purpose of section 111-3 (a) of the Criminal Code, as that of section 9 of article II of the Illinois Constitution, is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense. People v. Griffin, 36 Ill2d 430, 432, 223 NE2d 158 (1967); People v. Peters, 10 Ill2d 577, 580, 141 NE 2d 9 (1957); People v. Deakyne, 83 Ill App2d 338 (1967) ; People v. Laczny, 63 Ill App2d 324, 330, 331, 211 NE2d 438 (1965). Whether this objective is attained and the requirements of the section met must be determined by the substance of the charge and not by mere technicalities of its language. People v. Billingsley, 67 Ill App2d, 292, 299, 213 NE2d 765 (1966). “It is clear that many of the old pleading technicalities are no longer required under the existing law. Centuries ago, the punishment was severe and the courts attempted to compensate by strictly construing the pleading requirements. The main requirement today is simplicity in order that the accused will understand the charge against him.” People v. Blanchett, supra, 532, 533.

It is sufficient for the purposes of section 111-3(a), and the safeguard it is designed to protect, that the indictment, information or complaint charge the offense in the language of the statute when that statute sufficiently particularizes the offense so that the defendant is notified with reasonable certainty with what he is charged. People v. Sims, 393 Ill 238, 241, 66 NE2d 86 (1946); People v. Billingsley, supra, 298. It is only where the statute does not describe the acts which constitute the crime, (People v. Griffin, supra, 432, 433; People v. Green, 368 Ill 242, 254, 255, 13 NE2d 278 (1938)), or where, by the generality of the statute it may embrace acts which the statute does not intend to punish, that a charge, solely in the language of the statute, is not sufficient. People v. Peters, supra, 580, 581; People v. Billingsley, supra, 299.

However, cases arising under the UART, seldom come before reviewing courts. Section 137 of the Act provides that it is a misdemeanor for any person to violate any of the provisions of the Act, unless by said Act, or other law of this State, such violations are declared to be a felony. (Ill Rev Stats 1965, c 95%, par 234.) Ordinarily, the amount of the fine is small and the offense is not of a serious nature. Such circumstance is true with reference to certain other misdemeanors and quasi-criminal offenses.

To expedite the handling of such cases, the Supreme Court adopted the Rule in question which sets forth the form of the “Illinois Uniform Traffic Ticket and Complaint” and the Rule related generally to traffic cases, quasi-criminal cases and certain misdemeanors. Contemporaneously, the legislature provided “procedures for gettiiig persons into court without the necessity and inconvenience of an immediate arrest.” (SHA c 38, pars 107.11, 107.12 Committee Comments.) It also designated officers to let persons charged with quasi-criminal offenses and misdemeanors to bail and to accept and receipt for fines on pleas of guilty in minor offenses, in accordance with schedules established by Court Rule. (Ill Rev Stats 1965, c 16, pars 81-85 incl.)

The Court Rule which the legislature referred to was the Rule heretofore cited.

This Rule and these legislative enactments indicate that a less formal procedure is necessary in the handling of such minor offenses, whereby the person accused may get into court by the traffic ticket, notice to appear or by summons, and without the necessity of arrest. If the person does not obey the notice or summons, then an arrest warrant may issue.

The statement of the issue before us for decision, and the statutes and Court Rule involved, disclose that the overall legislation and Rule are not without ambiguity. The legislative enactments and the Court Rule, being in pari materia, should be construed together to determine the intent of the legislature. The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes. People ex rel. Krapf v. Hayes, 13 Ill2d 143, 147, 148 NE2d 428 (1958). We must presume that the several statutes and the Court Rule relative to procedures for the judicial processing of minor offenses within the area herein defined, relate to one subject and are governed by one policy and spirit; and that the legislature intended the several statutes and the Court Rule to be consistent and harmonious. Scofield v. Board of Education, 411 Ill 11, 20, 103 NE2d 640 (1952); Ashton v. County of Cook, 384 Ill 287, 298, 51 NE2d 161 (1943).

The population increase in Illinois over the past decade, a deeper understanding of the use of sanctions in law enforcement, and the increase in the use of automobiles over our improved highways in an effort to meet the necessity for travel in our complex and growing society are, in part, the reason for getting persons into court without the necessity and inconvenience of an arrest, for letting persons charged with traffic violations, other misdemeanors and quasi-criminal offenses to bail, and for the informal receipting for fines on pleas of guilty in such minor offenses.

From the pertinent legislation and rule, we believe that the legislature intended to create, within our criminal procedure, an expeditious method for the enforcement of traffic offenses, misdemeanors and quasi-criminal offenses, which would relax the rigidity of the requirements of our criminal law for the convenience of the individual, without an impingement upon his rights and without sacrifice of the welfare of society generally. We believe that within the area thus defined by these legislative enactments and the Court Rule, the legislative purpose should be effectuated; and that the principles of construction must not be too literal.

The complaint charged the defendant with “drag racing” as heretofore specified. Under our construction of the aforesaid pertinent statutes and the Court Rule, we find that the charge was sufficiently precise to apprise the accused of the nature and elements of the offense charged. Section 48.1 of the statute clearly defines the meaning of “drag racing” as used in the complaint, as follows:

“For the purpose of this Section ‘drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him or one or more individuals competing in a race against time on any street or highway in this State.”

The charge of “drag racing” does not include the multitude of different acts which would leave the defendant uncertain as to the particular act which constituted the basis of the offense charged. Such offense is not susceptible of the uncertainty which might result from a charge of “reckless driving.” People v. Griffin, supra, 431, 432; People v. Deakyne, 83 Ill App2d 338 (1967) and cases cited therein. Under the “reckless driving” charge, the nature and elements of the offense are left to doubt.

However, the offense of “drag racing” as defined by the statute is not fragmented into many separate and different acts, any one of which may constitute the offense. The statute defines one total offense, the essence of which is the act of competing or racing on any street or highway. We believe that the charge as specified on the UART form clearly apprised the accused of the particular acts on which the charge was based. We hold that the traffic ticket and complaint was not so defective as to fail to charge an offense.

While a person accused of a traffic violation has every right to be informed of the nature and elements of the offense charged against him, we are not unmindful of the circumstances under which traffic tickets are normally issued, and we recognize that they are drafted by laymen and may not be drawn with the care and precision of an indictment, information or complaint charging a more serious offense.

The charge made on the Uniform Traffic Ticket and Complaint form and the charge in quasi-criminal cases and misdemeanors where the accused is brought into court by notice or summons — and without the necessity of arrest — need not be set forth with the same technical precision required in an indictment, verified complaint or information. The charge under the informal procedure for handling these minor offenses must inform the accused of the nature and elements of the offense with which he is charged, but the charge may be simply stated by reference to the commonly used name for the offense, along with reference to the statute or ordinance alleged to have been violated and the time and place of the violation. If the charge stated sets forth the nature and elements of the offense charged against the accused so that he may prepare his defense and be assured of his constitutional privilege against double jeopardy, then we believe that section 111-3 (a) 3 of the Criminal Code has been complied with under this informal procedure for processing traffic violations, quasi-criminal cases and other misdemeanors.

The machinery of government cannot adequately function without a little play in its joints. Without such procedures, the rigid technicalities of the Criminal Code would overtax our judicial system. With the flexibility of our criminal procedures in this limited area of law enforcement, we can adapt the wisdom and experience of the past to these complex problems of the present. Any person may enjoy all of the protective benefits of our Criminal Code by demanding that he be prosecuted by a verified complaint, or he may waive such rights. If an accused elects to proceed to trial under these informal procedures, he is still entitled to be adequately informed of the nature and elements of the offense, but the charge need not be stated with the specificity required in an indictment, verified complaint or information.

In Miranda v. Arizona, 384 US 436, 467, 16 L Ed2d 694 (1966), at page 720, the court stated:

“We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.”

Thus, Miranda not only sets forth mandatory guidelines for the administration of criminal justice, but also exhorts the States to exercise their own creative methods to bring about independent and constitutionally permissible solutions of such problems. If adequately solved through the construction of existing legislation and court rule, such problems may never reach the federal constitutional level. Such is our intent and purpose herein.

Accordingly, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON and MORAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURT

license: Public Domain

text:
    Anne Rowe, Plaintiff-Appellee, v. Donna Frazer, et al., Edna L. Hickey, Defendant-Appellant.
    Gen. No. 66-58.
    Second District.
    June 23, 1967.

      Matthews, Jordan, Dean and Suhler, of Aurora, for appellant.
    Gates W. Clancy, of Geneva, and Dreyer, Foote and Streit, of Aurora, for appellee.
   MR. JUSTICE BURT

delivered the opinion of the court.

This is an appeal by Edna L. Hickey, the host in driving her automobile, from a verdict and judgment in favor of Anne L. Rowe, her guest, for $11,400 entered in the Circuit Court of DuPage County against her and Donna Frazer, codefendant, driver of another car which collided with Mrs. Hickey’s car. Donna Frazer did not appeal.

The original complaint was against Donna Frazer and Henry Rensman, the owner of the car which she was driving, in two counts charging ordinary negligence. Henry Rensman was later dismissed. Edna L. Hickey was made an additional party defendant and count three charging her with wilful and wanton misconduct was added to the complaint. Count three as finally amended was based upon five charges of wilful and wanton misconduct on the part of Mrs. Hickey: (1) excessive speed; (2) failure to have her vehicle under proper control; (3) failure to maintain a proper lookout; (4) proceeding straight ahead into an intersection while signalling an intention to turn; and (5) failure to sound the horn when it was reasonably necessary to do as to insure the safe operation of her motor vehicle. Defendant denied the charges.

Edna L. Hickey claims in her appeal that the trial court should have directed a verdict in her favor at the close of the case; that the verdict is against the manifest weight of the evidence; and that the court erred in denying the post-trial motion when these points were again raised. Appellee contends that the evidence, when viewed in the light most favorable to plaintiff, is sufficient to support the verdict of wilful and wanton misconduct on the part of the defendant Hickey, and that the verdict is not manifestly against the weight of the evidence.

There is little dispute about the facts. On June 8, 1963, about 1:30 in the afternoon, the defendant Edna L. Hickey was driving her car in an easterly direction on Roosevelt Road and approaching the intersection of Roosevelt Road and Winfield Road in the country near Winfield in DuPage County. Winfield Road runs northerly and southerly and is paved with blacktopping about 24 feet wide in 2 lanes for traffic and Roosevelt Road runs easterly and westerly with 4 concrete or blacktopped lanes approximately 40 feet wide. Roosevelt Road is also known as Route 30. The weather was clear and the pavement dry. There were no business or residential structures at or near the intersection, except a filling station on the Northeast corner. Only one or two other cars were in the area on either road at the time and they did not figure in the accident.

Accompanying her in the right front seat was the plaintiff Anne Rowe, her sister-in-law, then 66 years of age. Mrs. Rowe resided in St. Petersburg, Florida, but was on a visit to the home of her brother and the defendant, Mrs. Hickey, at Wheaton, Illinois, located east of the intersection where the accident took place.

The two ladies had driven to Aurora to pay some bills of Mrs. Hickey and were on their way back to the Wheaton home at the time of the accident.

At scene of the accident there were no traffic control devices on Roosevelt Road, but there was a standard stop sign situated on the south side of Roosevelt for intersecting northbound traffic crossing Roosevelt. The sign was located about 50 feet from the south edge of Roosevelt Road.

Plaintiff and this defendant had entered Roosevelt Road about two miles west of the accident scene by turning right off a road known as Gary Mill Road.

At the time defendant Hickey’s car was driven onto Roosevelt Road, the defendant Hickey actuated the turn signals on the car which flashed lights on the front of the car. Both plaintiff and defendant Hickey testified that at the time the turn was made to enter Roosevelt Road an indicator on the dashboard flashed an intermittent light and also emitted a clicking noise. Both plaintiff and defendant Hickey testified that these signals ceased after the turn was completed and there were no further signals given within the car up to the scene of the accident.

Mrs. Hickey testified she travelled at about 50 miles an hour on Roosevelt Road until she came to a speed sign, limiting speed to 50 miles an hour, whereupon she slackened her speed to 45 miles an hour, and she maintained that speed until she applied the brakes just before the accident.

Plaintiff testified she observed the speedometer of the Hickey car about 500 feet from the accident scene and it registered 45 miles an hour. She stated she then looked to the right and saw a dense clump of bushes and trees, and observed the Frazer car a split second before the impact, feeling a sudden hard emergency application of the brakes, and feeling herself coming out of the seat toward the windshield.

Plaintiff testified also that she had not said anything to Mrs. Hickey about the manner in which she was driving, and was asked:

Q. “You had no fault to find with that ?
A. “None whatever.”

She also testified that the radio had been turned off; that she and Mrs. Hickey were in no hurry to get home; and that she was just looking at the scenery and talking up to the time of the impact.

She was also asked:

Q. “Going back before the accident occurred, at any time while you were riding in the car going east on Roosevelt Road, did you observe were there any turn signals on?
A. “No, I did not.
Q. “Did you observe any clicking noise ?
A. “No.
Q. “Did you have occasion at any time to look at the dashboard of the car ?
A. “Yes, I did.
Q. “Did you observe a flashing light ?
A. “No, I did not.”

Mrs. Rowe testified further that she did not see the Frazer car stop or pull out.

Donna Frazer, aged 20, who had been licensed to drive for six months, testified she was driving a 1962 Ford northerly on Winfield Road, intending to cross Roosevelt Road. When she came to the stop sign she stopped a foot or two south of the sign and looked east and west for other traffic. She stated that because of a bluff or bank on the south side of Roosevelt Road to her left and west of Winfield Road, on which 30 foot trees and bushes 3-4 feet high were situated, she had a view of only about 75' to the west. She pulled forward to get a better view and stopped the car again about 6 feet from the south edge of Roosevelt Road. From this point she could see 200 to 300 feet to the west and observed a car 150 to 200 feet west of the intersection going 45 miles per hour. The car she observed, the defendant’s, was proceeding in the outside eastbound lane, and this position of the car was confirmed by Mrs. Hickey. The Frazer car then started ahead into Roosevelt Road, and when she last observed the oncoming car it was 75 feet from her car, at which time she was either at the intersection or proceeding across. She testified that when she saw the Hickey car for the first time, it was signal-ling a right turn, the signal being given by a flashing light above the headlight on the Plymouth automobile. An employee of a Chrysler products dealership testified no Plymouth of the model driven by Mrs. Hickey had any light above the headlight, the turn signal light being situated below the bumper of the automobile.

The Chief of Police of the Village of Winfield, called on behalf of the plaintiff, testified he interviewed the defendant, Donna Frazer, at the hospital subsequent to the accident, at which time she told him the Hickey vehicle was signalling a turn to the left to proceed north.

The front end of the Hickey vehicle struck the left side of the Frazer vehicle, leaving debris 10 to 15 feet in diameter a foot or two east of the midline of Winfield Road.

The Chief of Police of Winfield testified the Hickey vehicle left skid marks 57 feet in length, and also testified that the Hickey vehicle after the collision was astraddle the center line of Roosevelt Road, facing in an easterly direction but slightly turned north. The length of the skid marks and the position of the cars was corroborated by an auxiliáry police officer, called by the codefendant, who came to the scene from a gas station situated on the northeast corner of the intersection. This position of the car was also testified to by Mrs. Hickey.

Mrs. Hickey testified that after turning onto Roosevelt Road she remained in the outside right lane until she approached the scene of the accident.

She said there were no obstructions on the southwest comer of the intersection that prevented her from seeing Miss Frazer’s car.

Mrs. Hickey also testified that when she first saw the Frazer car she was about 160-170 feet away. The Frazer car was stopped, but when she was 60 or 70 feet from Winfield Road she saw that the Frazer car was slowly moving forward onto the pavement and she realized that there might be an accident. When asked if she had continued to observe the Frazer car as she approached the intersection she answered “no.” When she saw the Frazer car moving onto the highway Mrs. Hickey applied the brakes hard, but her car struck the left front door of the Frazer car. She stated that she had not previously applied the brakes because she saw no reason to do so. Mrs. Hickey said the plaintiff said something to her when they were about 60 to 70 feet from the slowly moving Frazer car.

In the recent case of Klatt v. Commonwealth Edison Co., 33 Ill2d 481, pages 487-489, 211 NE2d 720 (1965), the Supreme Court said, “It has been previously observed that ‘wilful and wanton misconduct has been defined in myriads of cases, each one reiterating or embellishing the phraseology of its predecessor. (Streeter v. Humrichouse, 357 Ill 234; Bartolucci v. Falleti, 382 Ill 168; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569; Mower v. Williams, 402 Ill 486; Myers v. Krajefska, 8 Ill2d 322, 328.) One often quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc. (Supra), at page 583: “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.” In the recent case of Myers v. Krajefska, 8 Ill2d 322, this court refused to overrule that definition. The court noted that although there are some variations in the phraseology of the definitions of wilful and wanton misconduct in the cases, the basic concept as applied in the case law is the same, and since such conduct is usually a matter of degree, no hard-and-thin line definition could be made.’ ” Hering v. Hilton, 12 Ill2d 559, 562, 147 NE2d 311.

In the Klatt case the court found that Klatt, while driving around a long curve on a very rainy day of limited visibility, upon going off the pavement drove approximately 1,000 feet at 50-55 miles per hour without reducing his speed and then swerved back onto the pavement and into the oncoming traffic. The court said it believed that all reasonable men might properly denominate these actions as indicating wilful and wanton misconduct under the above quoted definition and that the question was accordingly properly one for the jury, citing Hering v. Hilton, (supra); Amenda v. Suits, 8 Ill 2d 598, 134 NE2d 811; Myers v. Krajefska, (supra).

In the case now before us it is necessary to consider the evidence in the light most favorable to the plaintiff (Schneiderman v. Interstate Transit Lines, 394 Ill 569, 581, 69 NE2d .293) and in order for this court to set aside the verdict as to the defendant Hickey, an opposite conclusion as to that defendant must be clearly evident. Dursch v. Fair, 61 Ill App2d 273, 285-286, 209 NE2d 509; Payne v. Kingsley, 59 Ill App2d 245, 249, 207 NE2d 177; Deeke v. Steffke Freight Co., 50 Ill App2d 1, 5, 199 NE2d 442.

Each case depends upon its particular facts. The question of whether a personal injury has been inflicted by wilful and wanton misconduct is ordinarily a question of fact to be determined by the jury if there is any evidence in the record to support it. Schneiderman v. Interstate Transit Lines, 394 Ill 569, 583, 69 NE 2d 293. If there is not sufficient evidence to sustain a charge of wilful and wanton misconduct it is the trial court’s duty to withdraw that charge from the jury’s consideration. Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 366, 181 NE2d 386; Fosdick v. Servis, 40 Ill App2d 363, 367, 189 NE2d 538. All the circumstances must be taken into consideration. Ficht v. Niedert Motor Service, Inc., (supra). It is the legislative policy in Illinois that a driver is not liable to a guest for negligence. The liability is limited to injuries caused or contributed to by the wilful and wanton misconduct of the driver. (§9-201, c 95%, Ill Rev Stats 1961; Ficht v. Niedert Motor Service, Inc., supra, page 367). A wanton act involves a conscious indifference to a known danger. It is based on the concept that under the known or plainly observable circumstances the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation and ignored it. Fosdick v. Servis, supra, at pages 367-368; Martin v. Cline, 15 Ill App2d 269, 273, 145 NE2d 505; Biela v. Messner, 18 Ill App2d 236, 241, 151 NE2d 406.

In the present case there are five charges of wilful and wanton misconduct and we will review the evidence as to each, in the light most favorable to plaintiff. First, as to speed, the undisputed evidence shows Mrs. Hickey was travelling at 45 miles an hour, within the speed limit of 50 miles an hour on a 4-lane preferential highway, in daytime, with little other traffic and nothing to cause any slackening of speed until she was within 160-170 feet of the Frazer car stopped at the intersection. She had not changed speed. She then saw the Frazer car moving onto the pavement, when about 60 or 70 feet away and then applied her brakes hard. This action, considering all the sourrounding circumstances, cannot be considered wilful and wanton misconduct.

Secondly, as to control, the evidence is undisputed that defendant Hickey was confronted with a sudden emergency by the intrusion of Miss Frazer onto the highway. Miss Frazer admitted that she pulled forward after stopping at the edge of the pavement and when she saw a car 150 to 200 feet west of the intersection coming at 45 miles an hour in the outside eastbound lane, she continued ahead. Skid marks behind Mrs. Hickey’s car extended 57 feet, so she apparently tried to stop, and under all the circumstances did a creditable job of controlling her car. Clearly Miss Frazer was at fault, and although reasonable men might consider Mrs. Hickey should have been able to stop sooner, clearly she was not guilty of wilful and wanton misconduct.

As to lookout the same circumstances are pertinent. There was some evidence that trees and brush obstructed both drivers’ views of each other, but even if the view were clear for Mrs. Hickey, it is apparent that even with the sharpest attention, there was not much Mrs. Hickey could be expected to be alerted for until Miss Frazer made her move. A sitting car at the edge of the road should not be a cause for emergency action and Mrs. Hickey could reasonably expect traffic on the intersecting street to yield the right-of-way. A traveller on a preferential highway has a right to expect a car approaching along a secondary street controlled by a stop sign to obey the stop sign and yield the right-of-way as required by law. Pomrenke v. Betzelberger, 41 Ill App2d 307, 312, 190 NE2d 522; Kneer v. Peoria-Rockford Bus Lines, 337 Ill App 389, 86 NE2d 159; Roberts v. Cipfl, 313 Ill App 373, 375, 40 NE2d 629.

There was conflict as to whether Mrs. Hickey’s turn signals were operating at the time of the accident. Miss Frazer said they were flashing for a right turn, and also stated in a statement they were flashing for a left turn and she also stated they were located above the headlight, whereas a garage man testified that model Plymouth had its turn signals below the bumper. Both Mrs. Rowe, the plaintiff, and Mrs. Hickey, testified that the dashboard indicated they were not operative after the Hickey car entered Roosevelt Road.

Assuming Miss Frazer did see a turn signal flashing, it would hardly indicate that Mrs. Hickey was consciously and wilfully operating her car incorrectly when neither she nor her guest, the plaintiff, were aware of its signal.

In its most serious light, this charge could be only negligence. Wilful and wanton conduct is carelessness, but carelessness is not wilful and wanton misconduct. Bartolucci v. Falleti, 382 Ill 168, 175-176, 46 NE2d 980; Clarke v. Storchak, 384 Ill 564, 52 NE2d 229.

Finally, complaint is made of the failure to sound the horn by Mrs. Hickey. The purpose of sounding a horn is to warn a fellow user of the highway. Here, the undisputed evidence is that Mrs. Hickey was travelling 45 miles an hour when the emergency first arose, which means the car was travelling 66 feet a second. Mrs. Hickey said the Frazer car was about 75 feet from hers when she first saw it in motion.

She had about one second to act, in which time she was applying the brakes. Codefendant Frazer was already aware of the oncoming car, so the warning would have been useless. The statute (Par 212 of chapter 95^ of the Ill Rev Stats (1965)) provides that every driver of a motor vehicle should, when reasonably necessary to insure safe operation, give audible warning with his horn, but shall not otherwise use such horn upon a highway. Mrs. Hickey could scarcely be considered guilty of wilful and wanton misconduct for failure to blow her horn under the circumstances, when she was close upon Miss Frazer at the time when the latter made her move.

Construing all the evidence most favorably to plaintiff, together with all reasonable inferences arising therefrom, we find there is conspicuous lack of proof of any intentional wilful or wanton misconduct on the part of Mrs. Hickey, or any acts committed by her under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care. Klatt v. Commonwealth Edison Co., (supra, Page 488); Clarke v. Storchak, 384 Ill 564, 52 NE2d 229 (1944).

We therefore hold that under the law and evidence here the judgment of the court entered hereon should be reversed as to defendant Edna L. Hickey.

Reversed.

ABRAHAMSON and MORAN, JJ., concur.


author: CRAVEN, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph S. Maleck, Defendant-Appellant.
    Gen. No. 10,817.
    Fourth District.
    June 26, 1967.

      James L. Anderson, De Pew, Grimes & De Pew, of Bloomington, for appellant.
    Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, for appellee.
   CRAVEN, P. J.

Defendant appeals from conviction of the offenses of attempted burglary and possession of burglar’s tools entered upon verdicts of guilty returned by a jury. The defendant contends that the People failed to prove a material allegation of the indictment — the ownership of the building at which the offenses took place. Further, the defendant urges the trial court erred in allowing the admission of illegally seized evidence and raises questions of the competency of his court-appointed counsel, the public defender of McLean County.

The evidence was that there were pry marks at a door to the building occupied as a bowling alley known as Circle Lanes and expert testimony established that the marks were made by tools in possession of the defendant. Further testimony showed that the building in question was located at the northeast corner of the intersection of Routes 9 and 66 in the city of Bloomington, and that there was only one building used as a bowling alley in this vicinity. The president of Bloomington Normal Bowling Lanes Corporation testified that the corporation is commonly known as “Circle Lanes” and conducts business at the northeast corner of the intersection previously described.

The evidence established that the arrest was made on August 21, 1965, in the early morning hours when the defendant was found in his car in the parking lot of the Holiday Inn Motel which was located on property adjacent to the bowling alley. He was similar in description to one of two men who had been seen near the entrance of the bowling alley just a short time before. The arresting officers had observed pry marks on the door in the southeast corner of the bowling alley upon their arrival. They then left the area of the pry marks and walked toward the car in which they saw the defendant’s head bobbing up. The defendant stated he had been sleeping in his car, but the officers observed he was breathing hard and sweating. In his possession were two large screwdrivers located in the back seat of the automobile, apparently in plain view.

The defendant was incarcerated from September 3, 1965, until the trial began on the 11th day of May, 1966. The time of incarceration was in excess of the 120-day provision found in par 103-5 of chapter 38, Ill Rev Stats 1965. No motion was made raising this possible issue. A transcript of the grand jury proceedings was not requested by counsel for the defendant, and he now asserts that he was thereby in a less favorable position to impeach the People’s witnesses than he would otherwise have been. These contentions are made in connection with an allegation of incompetency of court-appointed counsel.

In our view of this record, these contentions of the defendant are without merit.

The ownership of the building seems to us to have been clearly established, and in any event its ownership was shown to be adverse to that of the defendant, and therefore the tests set forth by the statute defining the offense of burglary and in People v. McGuire, 35 Ill2d 219, 220 NE2d 447 (1966), have been met. The arrest without a warrant appeared reasonable under the circumstances and the discovery of the burglary tools by the police officers under these circumstances does not, in our opinion, amount to an unreasonable search or seizure. People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964). People v. Jones, 31 Ill2d 240, 201 NE2d 402 (1964). The arguments raised regarding competency of the defendant’s counsel have no legal basis since the record shows that the defendant received, at his request, continuances on November 12, 1965, and February 11, March 8, and April 6, 1966, whereby the 120-day requirement was waived. Further, there is no showing of the nature or extent of the possible impeachment which might or could have resulted from an examination of the grand jury proceedings had the trial court allowed counsel to have access to them. In order to sustain an assertion that counsel was incompetent, the defendant is required to show substantial prejudice to him by reason of that incompetency. People v. Gray, 33 Ill2d 349, 211 NE2d 369 (1965). People v. Clay, 32 Ill2d 608, 210 NE 2d 221 (1965). We do not find substantial prejudice to be established by this record.

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

Affirmed.

SMITH and TRAPP, JJ., concur.


author: HOFFMAN, J.

text:
    Della S. Hofing, et al., Plaintiffs, v. Howard Willis, et al., Defendants. C. G. Colburn, Petitioner-Appellee, v. Kenneth L. Bast, et al., Objectors-Appellants.
    Gen. No. 10,838.
    Fourth District.
    June 26, 1967.
    Graham and Graham, of Springfield (Hugh J. Graham, III, of counsel), for appellants.
    B. G. Colburn, of Jacksonville, for appellee.
   HOFFMAN, J.

This appeal is brought to reverse an order fixing attorney’s fees.

Mr. C. G. Colburn is a licensed attorney who has engaged in the general practice of the law in the city of Virginia since 1932. In 1961 he was contacted by 21 persons, ultimately the plaintiffs in the original cause, to determine what rights, if any, they possessed in 200 acres of farmland. Their interest depended upon the interpretation of two deeds, executed in 1904, and raised difficult points of law involving alternative contingent remainders. At the time Colburn was approached by plaintiffs, Howard and Mary Willis, the ultimate defendants, claimed the entire fee as devisees under an ancestor’s will.

In October, 1961, Colburn, on behalf of his 21 clients, filed a suit against the Willises to quiet title and construe the deeds, and demanded partition plus an accounting of the rents and profits from the date of defendant’s inheritance. To sustain a position for plaintiffs Colburn had to overturn the rule of Drury v. Drury, 271 Ill 336, 111 NE 140, which asserted a rigid rule of construction that had stood in the law of Illinois for nearly 50 years. In the trial court Colburn was partially successful. He then appealed to the Supreme Court, and in the original case, reported as Hofing v. Willis, 31 Ill2d 365, 201 NE 2d 852, he succeeded in changing the Drury rule and secured a ruling awarding plaintiffs ^gths of the acreage involved.

Colburn then followed through on the partition sale. The real estate sold for $155,600, of which plaintiffs’ share was $145,875. In addition, plaintiffs were entitled to rents which had accrued in the sum of almost $25,000.

At the time Colburn was first approached by plaintiffs, a contract for his services was entered into. It is this contract which raises the dispute in this case as to Colburn’s fee. By the contract Colburn was hired to represent the plaintiffs “in an attempt to establish, prosecute and handle their respective claim and establish their rights of inheritance, if any, . . It was agreed that Colburn “has made no guarantee regarding the successful termination of said suit . . .” The plaintiffs agreed to pay court costs and expenses, to pay Colburn a retainer of $500 upon the execution of the agreement, and:

“The said parties of the first part agree to pay to the party of the second part for all services rendered after the execution of this contract a reasonable, fair and customary fee based upon the recommended fees and charges as set forth in the schedule of fees of the Bar Association of Menard County, Illinois, upon the final completion of said suit, litigation or other legal means that in his opinion and judgment may be necessary by said second party in the matters involved herein.”

At the hearing to determine attorney’s fees, Colburn asked for one-third of the sale price (not including the rents) which was a fee of $48,625. He was supported in this view by two attorneys who had practiced extensively in the Circuit and who testified to their familiarity with the case and with the work involved. Several of the plaintiffs, who had been represented by Colburn, objected to this fee. However, they introduced no evidence or opinion concerning what the fee should be, and left the computation of it up to the court. The court considered the matter at length, analyzed its many aspects, studiously examined the manual of fees, and, in an opinion covering five pages of the abstract, concluded that the fee should be the amount asked for. From the order fixing this amount the several objecting plaintiffs have taken this appeal.

The schedule of fees of the Bar Association of Menard County provides that general office work shall be charged at the rate of $25 per hour. For contingent fees the schedule provides 33%rd percent of the amount of recovery in the trial court, and 40% upon appeal.

In his testimony at the fee hearing Colburn stated that he worked approximately 100 days on this case. He argued that the contract called for a contingent fee, but did not ask for the 40% because of the appeal, and claimed no part of the rents which had accrued. The objectors say that the contract does not provide for a contingent fee but merely authorized a fee computed on an hourly basis. Arguing from this they state that if Colburn worked eight hours per day at the rate of $25 per hour for 100 days, the reasonable charge would be $20,000. It is interesting to note that they do not suggest that they would have been willing to pay this amount had Colburn lost the case.

The court, in its analysis, concluded that the contract called for a contingent fee. But the court also, upon reasoning founded on Canon 12 of the American Bar Association (later discussed) justified the fee which was fixed, apart from the contingent basis.

The contract between Colburn and his clients provides that the fee be based upon the schedule of fees of the Bar Association of Menard County. The parties to this appeal have agreed that the Menard County Bar has adopted the Illinois State Bar schedule of fees. The Illinois State Bar minimum fee schedule, in effect at the time, adopted Canon 12 of the American Bar Association Canons of Professional Ethics, and the State Bar Association has announced that Canon 12 “should remain foremost at all times in the mind of the attorney as he sets fees for his services.”

Canon 12 provides, in part, as follows:

“In determining the amount of the fee, it is proper to consider:
“(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause;
“ (2) whether the acceptance of employment in the particular case . . . will involve the loss of other employment while employed in the particular case . . . ;
“ (3) the customary charges of the Bar for similar services;
“(4) the amount involved in the controversy and the benefits resulting to the client from the services;
“(5) the contingency or the certainty of the compensation.”

Beyond this, the Illinois State Bar suggested minimum fee schedule provides that the rates set are “minimum rates and are applicable when no unusual problems are involved.” The State Bar schedule further counsels that “where the amount involved in a case is substantial, the attorney assumes more responsibility when he undertakes to handle the matter . . . and for such additional responsibilities, the lawyer is entitled to additional compensation.”

We further find that our Supreme Court many years ago spoke of the variety of considerations upon which the value of a lawyer’s services should be judged, when the services were of such character that there were no certain charges therefor. In Louisville, N. A. & C. Ry. Co. v. Wallace, 136 Ill 87, 26 NE 493, the court said at page 93:

“The value of legal services will oftentimes depend upon a variety of considerations, such as the skill and standing of the person employed, the nature of the controversy, the character of the questions at issue, the amount or importance of the subject-matter of the suit, the degree of responsibility involved in the management of the cause, the time and labor bestowed. For such services there can be no established market price. There is no fixed standard by which their value can be determined . . . What is a fair and reasonable compensation for the professional services of a lawyer cannot, in many, if not in most cases, be otherwise ascertained than by the opinions of members of the bar, who have become familiar, by experience and practice, with the character of such services. ‘Practicing lawyers occupy the position of experts as to questions of this nature.’ ”

It is well settled that the awarding of attorney fees is a matter within the discretion of the trial court, and in the absence of a clear abuse of that discretion, the reviewing court will not interfere. Central Standard Life Ins. Co. v. Gardner, 36 Ill App2d 292, 304, 183 NE2d 881; Norton v. Jordan, 360 Ill 419, 431, 196 NE 475; Golstein v. Handley, 390 Ill 118, 125, 60 NE2d 851.

The trial judge, in his careful analysis of the problem, stated:

“The contract entered into between the parties provides for a $500 retainer fee, the payment of all costs and expenses and a reasonable attorney fee. Although the Contract of Employment does not provide for a contingent fee per se, it is my opinion that the parties so intended and have shown by their conduct that, in fact, Attorney Colburn was to be paid for his services only in the event of a successful determination of the legal proceedings.”

The trial judge then went on to say:

“I have also considered Canon 12 in arriving at this decision. In addition to the time and labor involved, I place emphasis on the novelty of the legal questions and the skill of the attorney. Doubtlessly, this employment precluded the attorney from other legal work. Certainly, there can be no doubt about the benefits derived by the parties. At the time the plaintiffs engaged Attorney Colburn, they were not in possession, not collecting rents and, in fact, a will was being probated which would have vested title in defendants. I have considered the contingency of the compensation and that the employment was not for an established and constant client.”

We do not need to decide whether or not the contract between Colburn and his clients provided for a contingency fee because, in our judgment, the fee fixed by the trial court was fair, just and proper in this case apart from that question. For five years Attorney Colburn served the plaintiffs as their counsel in a manner which demonstrated professional service of the highest order. This was not a simple matter of partition, quiet title and accounting. Attorney Colburn started with an almost hopeless case, and ended by obtaining a new rule in a branch of the law that is most unchanging.

The objectors have argued that actual time alone (computed at the office rate) should be the sole determining factor in arriving at a fair and reasonable fee. They ignore what Canon 12 and our Supreme Court have said must not be ignored; namely, the results accomplished, the character of the services, the difficulties of the case, the amount involved and the responsibilities assumed.

The trial court heard all the evidence offered and fixed a fee based upon a careful and thoughtful analysis of the many considerations involved. We cannot say that the result manifests an abuse of discretion, nor is it oppressive or exorbitant.

Accordingly, the order appealed from is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: JUSTICE ALLOY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Valerie Novack, Defendant-Appellant.
    Gen. No. 67-20.
    Third District.
    June 28, 1967.
    Edward C. Vogt, of Kankakee, for appellant; Edward Drolet, State’s Attorney, of Kankakee, for appellee.
   Opinion by

JUSTICE ALLOY.

Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Delfino Spinelli, Defendant-Appellant.
    Gen. No. 66-134M.
    Second District.
    June 30, 1967.

      Pollyea and Shoup, of Schiller Park, for appellant.
    Thomas Young, of Lombard, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by Delfino Spinelli, defendant, from a judgment entered on a jury verdict, which found him guilty of assault and battery in violation of an ordinance of the Village of Lombard. The court assessed a fine against the defendant in the sum of $100 and costs.

On appeal, the defendant has urged that the complaint was void for want of a proper party plaintiff; that the failure to allege venue in the body of the complaint deprived the court of jurisdiction over the case; that the amendment of the complaint, at the trial, to substitute the Village of Lombard for the State of Illinois, as plaintiff, was ineffective; that the court erred in specified evidentiary rulings and in instructing the jury in certain designated respects; and that the verdict and judgment were contrary to the law and the evidence.

The only error which has a jurisdictional cast is the charge that failure to allege venue in the body of the complaint deprived the court of jurisdiction over the case. This contention was recently decided adversely to the defendant. (People v. James Williams, Docket No. 40085 — Agenda 22, — M2d — (1967).) No motion to dismiss the charge was filed by the defendant in the trial court with reference to the alleged errors, as required by the Code of Criminal Procedure. (Ill Rev Stats 1965, c 38, par 114-1 (a) and (b).) Rather, such errors were raised by the defendant in his post-trial motions.

The plaintiff Village has filed no brief in this court. Such circumstance is regrettable since it leaves the judgment of the trial court without the support of brief and argument to which it is justly entitled. Also, under this posture of the case, if this court is to proceed on its own initiative to determine the merits of the case, it must do so in the dual role of advocate and judge — a position abhorrent to any court.

Of late, there has been a growing tendency in this Judicial District on the part of certain attorneys on behalf of the State, its municipalities and political subdivisions, to omit the filing of an appellee’s brief in compliance with Supreme Court Rule 341 and its predecessor rule. This dereliction is unfair to both the trial court and this reviewing court and, consequently, we have determined to reverse the judgment pro forma. Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 180, 212 NE 2d 106 (1965); Green v. Smith, 21 Ill App 198 (1886).

Judgment reversed.

MORAN and ABRAHAMSON, JJ., concur.


author: JUSTICE GOLDENHERSH.

text:
    Arrow Lathing & Plastering, Inc., a Corporation, Plaintiff-Appellee, v. Schaulat Plumbing Supply Company, Inc., Defendant-Appellee, v. Harold Tottleben, d/b/a C. & F. Builders, Hattie E. Tottleben, and Unknown Owners, Defendants, v. Walter E. Wille, et al., and Union Savings & Loan Association, Defendants-Appellants.
    Gen. No. 66-142.
    Fifth District.
    July 5, 1967.
    Harrison & Taylor, of Collinsville, for appellants; R. H. Burroughs, of Collinsville, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be pubished in full. ■


author: JUSTICE CORYN.

text:
    Carol Sue Dent, Plaintiff-Appellant, v. William W. Dent, Defendant-Appellee.
    Gen. No. 66-116.
    Third District.
    June 26, 1967.
    Thomas C. Nutting, of Kankakee, and Fred Weiszmann, of Northbrook, for appellant; Paul F. Blanke and Eva L. Minor, of Kankakee, for appellee.
   Opinion by

JUSTICE CORYN.

Not to be published in full.


author: ALLOY, J.

text:
    Shirley A. Cullmann and Leo M. Cullmann, Plaintiffs-Appellees, v. William Mumper, Defendant-Appellant.
    Gen. No. 66-87.
    Third District.
    July 5, 1967.
    Mullin, Rosenbloom & Zun, of Chicago, and Herbolsheimer, of LaSalle, for appellant.

      John David Zwanzig, of Ottawa, for appellees.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of LaSalle County in an action for personal injuries filed by the plaintiffs, Shirley and Leo Cullmann, against defendant, William Mumper. The injury occurred while plaintiffs were on the property of defendant Mumper. The jury returned a verdict of $5,000 and judgment was entered on such verdict. On appeal in this court, the basic ground for reversal is the contention that the trial court permitted the jury to arrive at a verdict based on instructions as to negligence of the defendant rather than requiring that the defendant be found guilty of willful and wanton misconduct.

Plaintiff Shirley A. Cullmann and her husband had been to a park on a picnic with defendant on Labor Day in 1964. Defendant suggested that after the picnic they stop at defendant’s home and play cards and eat. Plaintiff, in her husband’s automobile, rode to the home of defendant. They drove into defendant’s driveway, where defendant arrived a few minutes later after leaving one of his boys at his mother’s house. The driveway was 70 to 90 feet long and plaintiff and her husband were in their automobile on the portion of the driveway near the garage. Defendant backed into his driveway but prior to doing so noted that the automobile in which plaintiff was sitting was on the driveway. As defendant backed into the driveway, he applied his brakes but they failed to hold and he struck the rear of the plaintiffs’ automobile causing injury to plaintiff, Shirley A. Cullmann. Defendant testified that he did not know why his brakes did not work but that he had installed a radio under the dashboard and some of the wires extended under the brake pedal. There was evidence from the husband, Leo M. Cullmann, that defendant’s estimated speed at the time of impact was 25 to 30 miles per hour. It was stipulated by the parties that the driveway, where the accident occurred, was entirely on defendant’s property.

The complaint was predicated upon negligence and the requirement of ordinary care by defendant as to plaintiffs. The jury was instructed on the negligence theory only. IPI instructions were given over defendant’s objections having to do with negligence and ordinary care. Defendant’s tendered instructions relative to the requirement of willful and wanton misconduct were denied. Defendant also tendered a special interrogatory asking whether defendant operated his car in a willful and wanton manner, which interrogatory was denied by the court.

On appeal in this court, defendant advances the contention that as a social guest on the property of defendant, plaintiff Shirley A. Cullmann was a mere licensee, and that the duty imposed upon defendant is to refrain from willfully and wantonly injuring her. Defendant maintains that in spite of the nature of the activity involving the driving of defendant’s automobile, the circumstance of ownership of the property limits his obligation to the social guests so that he would not be responsible for ordinary negligence in driving his automobile.

Plaintiff as a social guest had the status of what is referred to as a licensee rather than a business invitee. It is true that if plaintiff had been injured by reason of some condition of the premises rather than from a negligent activity of defendant, plaintiff would only have been entitled to recover by a showing that defendant was guilty of willful and wanton misconduct. We must, however, determine this case on the facts and not on a rigid concept stemming from cases involving certain injuries sustained by reason of defects on premises. In the case before us, we are dealing with the activity of the operation of an automobile and we also find it notable that defendant knew of the presence of the Cullmann automobile and that the Cullmanns were in their automobile at the time defendant was backing his vehicle.

Plaintiff rightfully asserts that a distinction should be made in those cases involving the condition of the premises and those involving activities of an occupier of premises. It is pointed out that the Supreme Court committee on jury instructions recognized this distinction when, following the IPI Instruction No. 120.03 outlining the Duty of Owner or Occupant to a Trespasser, Licensee or Social Guest — Injury Caused by Owner’s or Occupant’s Activities, they stated in Notes on Use: “This instruction instead of Instruction 120.02 is to be used when the activities of the owner or occupant, as distinguished from the condition of the premises, cause the injury.” The particular instruction recites that the owner or occupant who knows or from facts known to him should reasonably anticipate the presence of the plaintiff in the place of danger, is under a duty to use ordinary care not to injure him. A number of the cases point out that the principle of a landowner being liable to licensees for only willful, wanton or affirmative acts stems from the English common law where the landowner was the backbone of the social system and supreme importance was attached to proprietary interests. It is pointed out, however, that the trend is away from this immunity from negligence in the maintenance of property, as regards persons classified as licensees.

In Dini v. Naiditch, 20 Ill2d 406, at 414, 170 NE2d 881, the Illinois Supreme Court stated (in 1960):

“However, the history of the law on the subject of landowners and ‘licensees’ shows a tendency to whittle away a rule which no longer conforms to public opinion. As Bolen points out, ‘Like so many cases in which a barbaric formula has been retained, its content has been so modified by interpretation as to remove much of its inhumanity.’ (50 Harv L Rev 725, 735.)”

In the Dini v. Naiditch case, a fireman was allowed recovery for negligent maintenance of the premises. In Ryan v. Chicago & N. W. Ry. Co., 315 Ill App 65, 42 NE2d 128, a policeman had been entitled to recover for negligent activities of the occupant of the land. Children have been excepted from the immunity for injuries resulting from negligent maintenance of land in a number of “turntable” and “attractive nuisance” doctrine cases. Finally, in Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, the test of responsibility to a child was declared to be basically the simple issue of foreseeability of harm to the child whether the child was an invitee, licensee, social guest or trespasser. We have referred to these particular exceptions in pointing out that the old rule involving relationship of owners-licensees has been modified in many cases even with respect to condition of premises.

In McDaniels v. Terminal R. Ass’n of St. Louis, 302 Ill App 332 (at pages 346-347), 23 NE2d 785, where the railroad companies were charged with negligence for failure to keep a lookout for licensees known to go upon or pass over its tracks, and plaintiff was injured by being hit with a heavy timber thrown onto a pathway, after finding that the judgment was justified on the basis of willful and wanton conduct the court also stated:

“We are not, however, required to so conclude under the view which we take of this case, that defendant owed a duty to plaintiff, which, in the state of the evidence before it, the jury was justified in concluding was violated through the negligence of defendant’s servants, and that, therefore, plaintiff is entitled to recover by virtue of such negligent breach of duty.”

In substance, the court indicated that a licensee was entitled to recover for an active negligent breach of duty and was not simply protected as against willful and wanton misconduct. The courts of this State have concurred with the author of Prosser on Torts, 2d Ed, page 445, Licensees, § 77, where the author states:

“A licensee is a person who is privileged to enter upon land by virtue of the possessor’s consent. The possessor is under no obligation to exercise care to make the premises safe for his reception, and is under no duty toward him except:
“(a) To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.”

Recovery was allowed on this principle in the case of Moore v. Ohio Oil Co., 241 Ill App 388, where defendant had stretched a cable across its private roadway leading to its house and plaintiff was paying a social call on the resident’s wife and drove into the cable, injuring herself. In that case, the court recited (at page 391):

“So far as we are advised they (Illinois courts) have never had occasion to consider what ‘affirmative acts’ would be sufficient to impose a liability upon the landowner. We are of the opinion that when defendant stretched the wire across the roadway without giving any warning of the changed condition it was such an affirmative act as would create a liability to one who was thereby injured while in the exercise of due care.”

The Illinois courts, in considering a number of cases, have clearly indicated that if the circumstance or condition requires some higher standard of conduct than simply to refrain from willful or wanton misconduct, the higher degree of care is required. This is sometimes described as the “humanitarian” rule. Some authors and some opinions have emphasized the principle on the basis of the factors of knowledge and foreseeability. As stated by the court in Kahn v. James Burton Co., 5 Ill2d 614, at 622, 126 NE2d 836:

“Every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act . . .”

After the presence of an individual is noted on the premises in a place of danger, an owner is required to use ordinary care not to injure him (Briney v. Illinois Cent. R Co., 401 Ill 181, 81 NE2d 866).

This is a duty which the courts have invoked as to all persons regardless of age. In some instances the distinction is made between what is described as active or passive negligence on the principle outlined in Moore v. Ohio Oil Co., 241 Ill App 388. In the case before us, defendant knew that plaintiff had responded to his invitation and was in an automobile on his driveway at the time he started to back the automobile into the same area.

It is observed by plaintiff in this court that no undue burden is placed upon an owner or occupant of property to simply require that he operate his motor vehicle while on his premises in a reasonable manner with regard to social guests whose presence is known to him at the place in which the automobile is operated. The injurious occurrence involved in this case in no fashion related to the condition or maintenance of the premises. We agree that plaintiff was a known social guest on the premises and that defendant had the duty of exercising ordinary care and caution to avoid injury from the affirmative activity of driving defendant’s automobile on the driveway.

We, therefore, conclude that the judgment of the Circuit Court of LaSalle County was proper and should be affirmed.

Affirmed.

STOUDER, P. J. and CORYN, J., concur.


text:
    People of the State of Illinois, Plaintiff, v. James Hall and Raymond Gathright, Defendants. People of the State of Illinois, Plaintiff-Appellee, v. Herman H. Rimmerman, Defendant-Appellant.
    Gen. No. 67-9.
    Third District.
    June 28, 1967.

      Richard Stengel, State’s Attorney, and Franklin S. Wallace, of Rock Island, for appellant.
    Kenneth M. Collinson, of Rock Island, for appellee.
   ALLOY, J.

In the cause now before us, defendants James Hall and Raymond Gathright were indicted for the crime of Indecent Liberties with a Child. Following arraignment of the defendants, their attorney filed a motion to require the State to furnish “any written statements or memoranda containing statements made by witnesses for the People given to a law enforcement officer and containing a substantially verbatim account of a conversation between a witness for the People and a law enforcement officer.” The motion was made prior to the trial. The trial court entered an order requiring the State’s Attorney to furnish the defendant’s attorney with such statements. Thereupon, the Assistant State’s Attorney refused, contending the order was improper. A rule to show cause was thereafter issued. Upon the continued refusal of the Assistant State’s Attorney he was found to be in contempt of court and fined $50. He appeals to this court from such finding of contempt of court and the fine.

On appeal in this court, the People contend that the order of the trial court directing the delivery of the statements of prosecution witnesses in possession of the State prior to trial is an invalid order. It is the contention of appellant that a defendant in a criminal case is not entitled to prior statements of the witness until the witness testifies or is about to testify and that such statements may be used only for impeachment. The trial court in concluding that the statement of the witness should be furnished to the defendant, asserted that if the defendant is furnished the copy of the witness’ statement only when the witness commences his testimony, defendant will request a recess for the purpose of examining the statement for possible impeachment and that this would cause an interruption in the trial or possible continuance and delay of the trial. The court asserted that it believed it to be a matter of the judge’s discretion as to whether the statements of prosecution witnesses should be furnished to a defendant and the ordering of the statements furnished in advance of the trial for the purpose of expediting the trial is not an abuse of discretion.

In recent years it has been the rule in Illinois and the Federal Courts that a defendant in a criminal case may, by motion, require that the prosecution produce during the trial any statements of witnesses testifying at the trial which are in possession of the prosecution and relate to matters about which the witness testified. This rule was set forth by the United States Supreme Court in the case of Jencks v. United States, 353 US 657, 1 L Ed 2d 1103., In September of 1957, the National Congress enacted the rule set forth at 18 USC § 3500 which provided in substance that after a witness is called by the United States and has testified on direct examination, the court, on motion of the defendant, may order the United States to produce any statements of the witness in possession of the United States which relate to the subject matter as to which the witness has testified. This has been known as the Jencks Act and the rule has been followed in Illinois (People v. Wolff, 19 Ill2d 318, 167 NE2d 197). It is notable that in neither the Jencks case nor in the case of People v. Wolff, supra, is there any precedent or basis for production of documents prior to actual trial and before testimony of witnesses whose written statement is being sought. In the same year (1957) the Illinois Supreme Court in People v. Moses, 11 Ill2d 84, 142 NE2d 1, stated it was error to refuse to turn over statements made by prosecution witnesses. The court stated (at page 89):

“So it is now held that an accused person is entitled to the production of a document that is contradictory to the testimony of a prosecution witness.”

It is notable that the request for such document was made by defendant during the trial.

In People v. Wolff, 19 Ill2d 318, 167 NE2d 197, decided in 1960, the Illinois Supreme Court, after discussing in detail the Jencks case and the Federal rule arising from the Jencks Act, adopted the Federal rule specifically and stated (at page 327):

“. . . we adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery is made to the accused.”

In the Wolff case, the statement of the witness was made to a policeman. It is noted also in the Wolff case, the question arose during the trial. The same rule was applied to the record of prior testimony of a court witness before the Grand Jury in the case of People v. Johnson, 31 Ill2d 602, 203 NE2d 399. The court in that case (at page 606), after determining that the reason for secrecy of the Grand Jury testimony had passed since the witness had testified at the trial, found that the statement should be furnished to defendant to be used for impeachment purposes at a subsequent trial.

In 1965 in People v. French, 61 Ill App2d 439, 209 NE2d 505, the court was confronted with the problem of whether the transcript of testimony of a witness before the Grand Jury could be obtained by defendant in preparation for trial. The Appellate Court, in determining that such transcript need not be furnished prior to trial stated (at pages 446-447):

“The State’s Attorney indicated to the court that if the witness in question were called upon to testify at the trial, he would then produce the transcript of that witness’ testimony before the grand jury to the court, and if the court found anything of an impeaching nature in the transcript it could then be delivered to the defendant’s attorney.”

The court, recognizing that there was a distinction between this case and the Johnson, Moses and Wolff cases, principally because the witnesses had not yet testified in the French case, stated (at page 445):

“He has not yet stated before the defendant and the world all that he supposedly knows about the commission of the crime in question. Until he does so testify, no matter how vital his knowledge may appear, there can be no certainty that he will testify. If such witness testifies truthfully at the trial, he should have no reason to fear the disclosure of his prior grand jury testimony. Tf he tells the truth and the truth is the same as he testified before the grand jury, the disclosure of the former testimony cannot possibly bring to him any harm . . . which his testimony on the open trial does not equally tend to produce. If on the other hand his testimony now is inconsistent with that before the grand jury, the privilege ought not to apply.’ ”

In People v. Ostrand, (1966) 35 Ill2d 520, 221 NE2d 499, the Supreme Court again reiterated (at page 531) that:

“No Illinois authority is cited, and we are aware of none, that requires the State to furnish defendant with a list of occurrence witnesses whom the State has no intention of calling in its behalf. Insofar as defendant’s other pretrial motions call for the production of police reports, it is clear that such material need not be disclosed unless sought for impeachment purposes at the trial after a witness has testified. (People v. Turner, 29 Ill2d 379, 383, 194 NE2d 349; People v. Wolff, 19 Ill2d 318, 323, 167 NE2d 197.)”

While the case of People v. French was the only case which was brought to our attention involving a request for documents prior to the trial and involved a Grand Jury transcript, the language of this case indicates that the same rule would apply to any statement of witnesses in possession of the prosecution.

Defendant in this cause has vigorously contended that the question of pretrial discovery should rest in the sound discretion of the trial judge. A number of cases from other jurisdictions have been directed to our attention, but we find no precedent in such cases which we feel would justify the invocation of such doctrine. It is emphasized by the defendant that the objective of a trial is to get at the truth and to allow defendant access to statements prior to trial in the discretion of the trial court will aid in achieving such purposes. Both the Federal courts and the Illinois courts have emphasized that the production of such statements for the purpose of allowing defendant to use such statements for impeachment purposes only is in furtherance of the objective of ascertaining the truth. Defendant is deemed adequately protected if the statement is furnished to him during the trial. The circumstance that this may cause delay in the trial while the statement is examined does not appear to us to be an overriding reason for permitting delivery of statement prior to trial.

In the course of the briefs, both the defense and prosecution have reiterated the difficulties attendant upon prosecuting and defending a criminal case. The prosecution argues that the present rules in view of the Miranda case and similar cases have weighted the rules against the prosecution and that to add a further limitation requiring delivery of statements made by prosecution witnesses prior to trial (and who in fact may not even be called as witnesses) would severely hamper the prosecution of similar cases and put such witnesses under great pressure and duress from defendants or their representatives. Defendant, on the other hand, asserts that the prosecution has a staff of investigators and is well equipped to proceed with whatever is required in investigating a case whereas a defendant is not in position financially to afford such investigators. Under the laws of the State of Illinois, a defendant in a criminal case has certain rights relative to discovery which are granted by the State. These include serving him with a copy of the charge, a bill of particulars, a list of witnesses for the prosecution, a copy of any written or oral confessions made by defendant, and a sample of handwriting to be used at the trial if this becomes relevant. No statute of the State of Illinois nor any precedent which has been discovered by us or cited by the litigants requires the production of prosecution witnesses’ statements to the defendant prior to the trial.

So far as discovery procedure is concerned, the Illinois Revised Statutes (c 38 § 114-13) provides that discovery in criminal cases shall be in accordance with Supreme Court Rules. The Illinois Supreme Court has not established any specific rules regulating discovery procedure in criminal cases so that our only guide becomes the precedents and the specific statutes which have thus far been enacted.

To impose upon the trial judge the discretionary right to order production of documents, it appears to us, would create a standard which would be very difficult to follow and which would impose an unreasonable burden upon the trial judge. Defendant asserts in this court that the trial judge would know all the attorneys and would be able to exercise a discretion which would prevent the prosecution witness from being harassed or threatened prior to trial. How this could possibly apply in a community the size of Chicago or some of the larger communities in the State is not clear to us. The probability of an objection to such a standard on the ground that it does not give each defendant equal protection of the laws in permitting any defendant to have the same rights to access to prosecution witnesses’ statements appears to us to be a very cogent reason for having a rule which applies equally to all parties and does not put the trial judge in the unenviable position of exercising such a difficult discretion in criminal cases.

We feel that no precedent authorizes the production of prosecution witnesses’ statements prior to trial, but that such statements can only be required to be produced during the trial when the party in fact becomes a witness and then can be used for impeachment purposes only. We are, therefore, confronted with the problem as to whether or not this court should assert a rule of the character announced in this case in the trial court in making such production discretionary with the trial court. We do not feel that we are justified in doing so and conclude that this is a problem for the Supreme Court to establish by rule, if it so determines (or, if the Legislature so desires) it could become an area for legislative enactment. We, therefore, conclude that the trial court improperly ordered the production of prosecution witnesses’ statements and that the contempt order which followed in an attempt to enforce such invalid order was improper.

The orders of the Circuit Court of Rock Island County were improper and, therefore, should be reversed and this cause should be remanded to the Circuit Court of Rock Island County for further proceedings consistent with this opinion.

Reversed and remanded with directions.

STOUDER, P. J. and CORYN, J., concur.


author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Steve Brown, Defendant-Appellant.
    Gen. No. 51,704.
    First District, Fourth Division.
    May 12, 1967.

      William P. Rhetta and Robert C. Power, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.

       Ill Rev Stats 1965, c 38, § 9-3. Involuntary Manslaughter and Reckless Homicide.] (a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.
      (c) Penalty. (1) A person convicted of involuntary manslaughter shall be imprisoned in the penitentiary from one to 10 years.

   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charles Steve Brown was indicted for murder. After a jury trial a verdict was returned finding Brown guilty of involuntary manslaughter. Defendant’s motion to arrest judgment and motion for a new trial were denied. Defendant then filed a motion for probation, which was also denied. The trial court entered judgment on the verdict and sentenced the defendant to the Illinois Penitentiary for a term of not less than three nor more than ten years.

The defendant contends that the State failed to prove him guilty beyond a reasonable doubt; that the court erred in admitting color slides into evidence before the jury; and that a sentence of three to ten years upon a conviction of involuntary manslaughter was excessive.

Thelma Jean Jackson testified that she had two sons, Steven and Roderick; that Roderick was three years old; that she had lived with Brown, the defendant, for two years without benefit of marriage, and that he was the father of Steven. She testified as follows: On October 21, 1965, at 1:30 or 2:00 p. m., she left the apartment and the defendant stayed with her two sons. When she left Roderick was fine, in good spirits, sitting in a small rocking chair; when she returned about 2:30 or 3:00 p. m., she heard him grunting in his crib, and noticed that he just stared at her. When she asked Brown if he had done anything to the child, he replied that Roderick could be sick, just like anyone else. Miss Jackson went downstairs, called the police and asked them to take her boy to County Hospital. While she was telephoning the defendant walked in and said, “You think you’re so damn smart”; he hung up the telephone, twisted her arm and took her upstairs. They started arguing, and she said, “You killed my baby!” At that, the defendant started choking her. Afterwards he said he would take her to the hospital, then he put cleaning fluid in Roderick’s nose, and tried to stand the child up to dress him, but the boy was limp and unable to stand. Brown then picked him up and they went to the car and drove to County Hospital, where Roderick was found to be dead.

Miss Jackson also testified that prior to that date Brown had beaten Roderick approximately eight times; that he had whipped him with an iron cord “which he cut off from a lamp because she threw all the belts and things away”; that this whipping left little slashes on his arm, stomach and back, and a swollen ear. She further testified that about a month prior to October 21, when Roderick had vomited food, Brown had beaten him with a belt “on his bottom and privates which caused [her] to take Roderick to County Hospital because his privates were swollen. On other occasions the defendant punched Roderick in the stomach and pinched his neck by twisting the skin which always left bruises.” She testified that before she left the apartment on October 21, Brown had slapped Roderick’s face, and when she returned Brown told her Roderick fell out of a chair because he was sleepy and wanted to go to bed.

Officer Gerald Slattery testified that he was assigned on October 21, 1965, to investigate the death of Roderick; that he observed the body of the victim at the morgue; that later he went to County Hospital where he learned that the child was brought to the hospital at 4:00 p. m. and pronounced dead at 4:05 p. m.

Dr. James W. Henry, coroner’s pathologist, testified that his external examination of Roderick on October 21 disclosed numerous old and new scars, contusions or bruises on the forehead, cheeks, lips, upper chest and abdomen, arms, legs and back. The internal examination disclosed brain hemorrhage, major liver damage, and extensive damage to tissue around the kidney. In the opinion of Dr. Henry, the cause of death was due to the application of a traumatic force or multiple traumatic impacts as evidenced by large bruises of recent origin, not to exceed 24 or 48 hours, that were present over the upper abdomen and below the rib level. He correlated those bruises with the rupture of the liver. The subdural hemorrhage in the head which was of recent origin was not the cause of death, but in time it would have been.

The defendant argues in this court that the entire proof of the cause of Roderick’s death is based on circumstantial evidence, and his argument is based particularly on the fact that the proof that the defendant was a criminal agent causing the death was not sufficiently established. He admits in his argument that in order to have a conviction of involuntary manslaughter it is only necessary to prove beyond a reasonable doubt that the defendant’s acts recklessly caused the death. In support of his contention he cites People v. Wilson, 400 Ill 461, 81 NE2d 211, in which case the Supreme Court reversed the conviction of the defendant and remanded the case for a new trial. However, in that case the defendant’s wife was burned in a fire in the barn. The State claimed that the defendant murdered his wife in the house and took her body to the barn where he set the fire. The defendant denied killing his wife. The court held that the cause of death, the manner of the death, and the place where the death occurred were in doubt. The facts were much different from those in the case before us.

In People v. Ahrling, 279 Ill 70, 116 NE 764, the court again reversed and remanded on the ground that there was no showing as to the cause of death or as to whether the defendant had killed her or she had committed suicide. Nor is that case applicable to the facts before the court in the instant case.

In People v. Hanson, 359 Ill 266, 194 NE 520 the court made the following statement at p 281:

“There is a difference between proving guilt beyond a reasonable doubt and proving it beyond the possibility of a doubt. When the evidence is circumstantial the guilt must be so thoroughly established as to exclude every reasonable hypothesis of the defendant’s innocence; (People v. Ahrling, 279 Ill 70; People v. Bentley, 357 id. 82;) but the People are not required to establish it beyond the possibility of a doubt. (People v. Lucas, 244 Ill 603; People v. Depew, 237 id. 574; Pate v. People, 3 Gilm 644.)”

The case before us falls under that rule.

The defendant did not testify, nor did he put on any witnesses to contradict the testimony of the State’s witnesses. In People v. Bartell, 386 Ill 483, 54 NE2d 700, a case where the defendant was indicted for murdering his daughter and was found guilty of manslaughter, the State introduced evidence of three neighbors who had on different occasions heard the defendant slapping the daughter; that they requested him to stop beating the child and he told them if he wanted to beat the child he was going to beat it. The testimony of the coroner’s physician in that case was that the examination disclosed bruises on the head and face and bruises and discoloration on the body of the child; the cause of death was a fracture of the skull. The child was 21 months old. The defendant testified in his own behalf and put character witnesses on the stand. He testified that he had never struck the child hard, although he had spanked her from time to time; that on the day in question he had slapped the child gently and she fell down and began to cry, after which he put her in the crib and noticed that her lips were blue; that he told his wife to call the doctor. The court stated that it was the contention of the defendant that because there was no direct evidence tending to show that he struck the deceased, the evidence only raised suspicion of guilt; and the court held that the well-settled rule is that the guilt of a defendant must be so established as to exclude every other reasonable hypothesis of innocence. The court called attention to the fact that the State’s witnesses had heard the defendant slapping the child in his apartment; and that that testimony as to his conduct was further corroborated by the testimony of the coroner’s physician who testified to various bruises and injuries on the face and body of the child. The court also stated that there was no denying there was a skull fracture, and said, at page 489:

“Direct testimony is not required to prove the means causing the death of a deceased person. The means and manner of death may be inferred from the circumstances proved. (People v. Sapp, 282 Ill 51.) Where the facts and circumstances proved on the trial carry conviction, this court will not substitute its opinion for that of the jury simply because there is some conflict in the evidence. (People v. Martishuis, 361 Ill 178.) We believe there was sufficient competent evidence in the record to support the verdict of guilty in this case.”

The case before us is very similar to the Bar-tell case wherein the court permitted and considered evidence of prior abuses on the part of the defendant father of the child. From a survey of the record in the instant case it is apparent that there was sufficient evidence introduced by the State to prove the defendant guilty beyond a reasonable doubt.

The defendant also objects to State’s Exhibits 8 through 12 (no exhibits have been made a part of the record in this court), which were photographs developed into color slides taken of the deceased after death, which purported to show bruises and scars on the body.

Police officer James Lewis, who is assigned to the Chicago Crime Laboratory, testified that it is a part of his duties to photograph crime scenes, and counsel for the defendant stated he would stipulate that Lewis was qualified to work at the Crime Laboratory. The Assistant State’s Attorney said, “Will you stipulate, also, as to his expertee [sic] to the taking of photographs and pictures?” Counsel for Brown said, “I’ll stipulate that he is qualified to do whatever he does at the Crime Laboratory.” Officer Lewis testified that on October 21, at the County Morgue, he photographed the body of Roderick Jackson, at which time he noticed numerous bruises about his body. He testified that he recognized Exhibits 8, 9, 10, 11 and 12 for identification (which were slides); that he did not develop the slides; that they were marked by name and number; and that Exhibits 8 through 12, and 1 and 7 “truly and accurately portray the scene to which they purport to portray.” (Exhibit 1 was a picture of the small rocking chair used by Roderick.)

Miss Jackson had testified that she recognized People’s Exhibit 2 for identification (a black and white photograph) as a picture of her son Roderick, and that it actually portrayed him as she saw him at the County Morgue on October 22, 1965. This Exhibit 2 was then admitted in evidence, as were Exhibits 8 through 12. In the trial court and in this court the State argues that the slides were admitted in evidence in order to help the jury better understand the nature of the circumstances surrounding the death and cause of death because the victim was a Negro and black and white pictures were not sufficient. People v. Herbert, 361 Ill 64, 196 NE 821, is controlling here, in which case the court held:

“A photograph shown to be a correct representation of a person during a period of time under investigation is competent where the accuracy of the photograph is proved by the testimony of a person acquainted with the appearance of the individual at the time the photograph was taken. It is not necessary that the correctness of the photograph be proved by the testimony of either an expert witness or by the person who took the picture and developed the film. (Brownlie v. Brownlie, 357 Ill 117; 2 Wigmore on Evidence, sec 790.)

Under the rule laid down in People v. Bartell, supra, the trial court properly admitted the slides. People v. Hoffman, 32 Ill2d 96, 203 NE2d 873; People v. Kolep, 29 Ill2d 116, 193 NE2d 753.

Brown cites People v. Jackson, 9 Ill2d 484, 138 NE2d 528, in support of his contention that the exhibits should not be admitted. That case is not applicable since the court placed a great deal of stress on the fact that the photograph of the deceased which was objected to and which the Supreme Court held was improperly admitted, was a photograph taken at the hospital after the autopsy, on which photograph there distinctly appeared a portion of the autopsic incision; this was one of the factors making it inadmissible. In that case the court said that the question as to whether the photograph of a deceased person is properly admissible depends on whether it has probative value such as aiding a jury in the better understanding of the evidence. As in People v. LeMay, 35 Ill2d 208, 220 NE2d 184, we feel that the slides in question in the case before us would establish facts in controversy material to the offense, and that the trial court did not abuse its discretion in admitting the slides into evidence.

As we have stated, we have had no opportunity to examine the slides which were objected to.

Brown further argues that a sentence of three to ten years in the penitentiary for an offense lacking malice is excessive. His counsel argues in his brief: “There is nothing in the record in aggravation indicating that the Defendant would likely commit another offense; there is nothing in the record indicating that public interest or rehabilitation of Defendant requires that Defendant receive the penalty provided by law, . . .” It is also pointed out by defendant’s counsel that the defendant was confined in the County Jail for six months preceding trial, and that he should be placed on probation.

We have no authority to grant probation in this court, and would not grant it to this defendant in any event. As to a reduction in sentence, we are governed by the interpretation of the Supreme Court as expressed recently in People v. Hicks, 35 Ill2d 390, 397, 220 NE2d 461:

“Defendant finally requests reduction by us of sentence imposed by the trial court. It has been observed frequently that where the punishment imposed is within the limits prescribed by the legislature, this court should not disturb it unless it is clear that the sentence constitutes a great departure from the spirit and purpose of the law or it is manifestly violative of the constitutional mandate requiring that all penalties must be proportioned to the nature of the offense. Here, a particularly heinous crime has been committed and we are unable to say that the principles just mentioned have been violated by the imposition of a life sentence. People v. Taylor, 33 Ill2d 417, 424; People v. Smith, 14 Ill2d 95, 97, and cases there cited.”

The sentence imposed in the instant case was three to ten years. The maximum of this sentence was thus the maximum allowed under the statute, but considering the sadistic and brutal nature of the crime, we do not consider it too severe; nor do we believe that the minimum of the sentence was set too high. While the best practice would leave a substantial spread between minimum and maximum, we believe that the minimum in this case could, nevertheless, have been somewhat higher without requiring reduction.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE STOUDER.

text:
    In the Matter of the Estate of Fred Ruebush, Deceased. Ernest Simpson, Claimant-Appellee, v. Henry Ruebush, as Administrator of the Estate of Fred Ruebush, Deceased, Respondent-Appellant.
    Gen. No. 66-46.
    Third District.
    June 29, 1967.
    T. Otis Brown, of Bushnell, and Zimmerly, Price & Johnson, of Champaign, for appellant; George Meuth, of Cuba, for appellee.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Wesley Harris, Defendant-Appellant.
    Gen. No. 66-136.
    Fifth District.
    July 1, 1967.
    Hoaglund, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellant; Leon G. Scroggins, of Edwardsville, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.