text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM R. HOCKADAY, Defendant-Appellant.
    Third District
    No. 81-97
    Opinion filed October 9, 1981.

      Robert Agostinelli, Bonita L. Welch, and Frank W. Ralph, all of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

After a jury trial in Rock Island County the defendant William Hockaday was found guilty of forgery and sentenced to two years to the Department of Corrections. The charge was brought by information and the insufficiency of the information to state an offense was raised initially by a motion to dismiss or quash the information and again after conviction was entered and sentence imposed by motion in arrest of judgment. All motions were denied by the trial court, and the only issue raised on this appeal is whether the information charged an offense.

Insofar as is material to this case the information provided:

“* 6 ° defendant, with the intent to defraud, knowingly delivered to Debbie Saylor a document apparently capable of defrauding another, in that it purported to have been made by another, Robert Owens and Tom Hanson, a copy of the document is attached hereto and made a part hereof by reference thereto, said document being a check numbered 1633 of Energy Specialty Products, Inc., a corporation licensed to do business in the State of Illinois, drawn on the River Forest State Bank and Trust Company of River Forest, Illinois, dated March 12, 1980, payable to Stephanie A. Morrow in the amount of Four Hundred Seventy-five and no/100 Dollars ($475.00) and signed as maker Robert Owens and Tom Hanson, knowing the document to have been thus made, in violation of Ill. Rev. Stat. 1979, ch. 38, par. 17 — 3 a2.”

The testimony established that on March 14,1980, defendant went to the home of Stephanie Morrow around 10 a.m. He told her that a man named Charles Pinkus owed him money and could pay by check, but that defendant had no identification to get the check cashed. Morrow agreed to cash it for him. She had met Pinkus once at a party.

Defendant left then and returned 20 minutes later with a check from Energy Specialty Products made payable to Stephanie Morrow. Morrow drove defendant in the direction of her husband’s bank. On the way, they stopped at Andy’s 5th Street Tavern. Defendant said that he knew a cocktail waitress there who might be able to cash the check.

Debbie Saylor, the waitress on duty that morning, had seen the defendant in the tavern the night before. Defendant presented the check to her and she went to cash it. Faye Caldwell, another waitress on duty, came up to Saylor and told her not to cash the check. She advised Saylor to check the name — the check was made out to a woman, not to defendant. The two women explained to defendant that they could not cash the check for him. Defendant said that Stephanie Morrow was outside in the car and left to get her.

Saylor saw that the name endorsing the check was the same as that appearing on Morrow’s driver’s license. She copied the license number and cashed the check for its full amount — $475. Morrow picked up the money and handed it over to defendant when they left the tavern. Morrow denied ever having signed anything on the front or back of the check.

The State further established that sometime in mid-January, the offices of Energy Specialty Products, a Cicero-based company, were burglarized. Later that month, the company’s vice-president, Roger Rasckke, ascertained that 100 blank checks had been taken. The account was thereupon closed.

Authorized signatures for checks paid by Energy Specialty Products were those of Rasckke and the company’s president, Stanley Fox. Tom Hanson, Robert Owens, Charles Pinkus, William Hockaday and Stephanie Morrow were all unknown to Rasckke. Nor had any of these individuals ever been employed by Energy Specialty Products.

The jury found the defendant guilty of forgery as charged. On this appeal the defendant has renewed his objections made in the trial court, that the information failed to allege an offense.

According to section Ill — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(a)(3)), the charging instrument must include “The nature and elements of the offense charged.” (People v. Deal (1979), 69 Ill. App. 3d 74, 387 N.E.2d 21.) If the charging instrument fails to set forth each element of the offense charged, then a motion to dismiss, if made, must be granted by the trial court. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(8).) To the same effect is section 116 — 2(b)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 2(b)(1)) as applied to motions in arrest of judgment.

When the question as to the sufficiency of the charging instrument is raised at the trial level, as it was in the present case, the instrument must be evaluated by the court on a standard of strict adherence to statutory requirements. (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.) The holding in Lutz emphasizes the differences in the standard to be applied when the sufficiency of the charging instrument to state an offense is first raised in the trial court from that to be applied where such sufficiency is raised for the first time on appeal. In the former case as announced in Lutz the trial court is required to determine whether the elements of the offense are included in the charging instrument, and the propriety of such decision may be a reviewable issue on appeal. In the latter case a court of review is concerned with only two aspects of the charging instrument. Does it apprise the defendant of the charges against him with sufficient particularity that he may prepare his defense? Is the description of the offense sufficient so that a conviction or an acquittal may be pleaded in bar of a subsequent prosecution? It appears from the record the trial court may have incorrectly applied this latter standard.

The information purportedly charged the offense of forgery by delivery, a violation of section 17 — 3(a) (2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 3(a)(2)). That section provides that:

“(a) A person commits forgery when, with intent to defraud, he knowingly: * * * (2) Issues or delivers such document knowing it to have been thus made or altered.”

To make sense of the above-cited provision, it is necessary to ascertain what “such” document is and how it was “thus" made or altered. The answer is to be found in section 17 — 3(a)(1), immediately preceding the section under which defendant was charged. That section provides that:

“(a) A person commits forgery when, with intent to defraud, he knowingly: (1) makes or alters any document apparently capable of defrauding another in such a manner that it purports to have been made by another or at another time or with different provisions, or by authority of one who did not give authority.”

Thus, to commit forgery by delivery under 17 — 3(a)(2) one must, with intent to defraud, knowingly deliver a forged document. Section 17 — 3(a)(1) in turn specifies the four ways in which a person may forge a document — (1) by making or altering a document to make it appear that it was made by someone else; (2) by making or altering a document to make it appear to have been made at a time other than when it was actually made; (3) by making or altering a document to make it appear that it contains provisions not actually contained in the original; and (4) by making or altering a document to make it appear to have been made by authority of a person who did not give authority.

According to sections 17 — 3(a)(1) and 17 — 3(a)(2), the elements of the offense which the State sought to charge here — forgery by delivery— are as follows: (1) a document apparently capable of defrauding another; (2) a making or altering of such document by one person in such manner that it purports to have been made by another; (3) knowledge by defendant that it has been thus made; (4) knowing delivery of the document; and (5) intent to defraud.

According to the defendant the information in the present case fails to state that the document was forged, or that defendant knew it was forged and it is insufficient in that it fails to charge the second and third elements listed above. We agree.

In our opinion the statute requires both that the nature of the forgery be described and the defendant be charged with knowledge of such forgery as elements of the offense of forgery by delivery. A review of the -information does not include these two elements of the offense, and indeed one of the arguments of the prosecution on this appeal is that the nature of the forgery and the knowledge thereof are not necessary elements of the offense. We do not agree with this position and we believe the statute is explicit. At this juncture it should be noted that even though the prosecution was aware of the potential problem relating to the sufficiency of the charging instrument, it elected to rely on the information without seeking any amendment.

As additional reasons for supporting the information, the prosecution suggests that on the authority of People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, charging an offense in the language of the statute is sufficient and furthermore by using the word “purported,” forgery and knowledge thereof were charged.

, So far as charging an offense in the language of the statute is concerned, we think it is sufficient to say the information does not set forth all of the elements of the offense in the language of the statute so this rule is of no support to the prosecution. People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, is likewise of little support for the prosecution’s position since the principal issue in that case was whether the statutory language stated an offense where the statute did not include the requirement in the offense of robbery of an intention to permanently deprive the victim of his property. The court in Banks held that contrary to a prior inference in another case, the unexpressed element was not an essential element of the offense and therefor concluded the statute did state an offense. No issue was in fact raised in Banks concerning the general rule regarding the sufficiency of a charging instrument where statutory language is used.

Finally, we have reviewed various meanings of the word “purported,” but we conclude that it does not in common parlance convey the meaning concerning the nature of the forged document and the defendant’s knowledge thereof. In a general sense “purported” may mean not real or true, but it falls far short of referring to the elements of the offense charged.

For the foregoing reasons the judgment of the circuit court of Rock Island County is reversed.

Judgment reversed.

ALLOY and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JONES

license: Public Domain

text:
      In re MARRIAGE OF NANCEE KAY JOHNSON, Petitioner-Appellee, and GORDIAN GLENN JOHNSON, Respondent-Appellant.
    Fifth District
    No. 81-65
    Opinion filed September 30,1981.
    Sorting, Northrup, Hanna, Cullen and Cochran, Ltd., of Springfield (Elizabeth A. Evans and A. Clay Cox, of counsel), for appellant.
    Hal Alexander, of Taylorville, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Following a bench trial in the circuit court of Christian County, petitioner, Nancee Kay Johnson (wife), was granted a dissolution of marriage from respondent, Gordian Glenn Johnson (husband). Husband appeals only that portion of the order which requires that his visitations with the parties’ minor child be supervised.

The parties were married on June 5,1976, and one child was born of the marriage, a son who was born on October 31,1976. On April 25,1980, the wife filed a petition for dissolution of marriage which alleged that the husband had been guilty of extreme and repeated acts of physical and mental cruelty.

At trial it was undisputed that during the course of the marriage the husband had repeatedly taken and misused several types of drugs, including some drugs prescribed by his physician. The husband’s use of drugs increased with marital, financial and academic difficulties, and after the parties had separated this misuse culminated in several voluntary overdoses of valium, which had been prescribed for him by a physician. Husband testified that in the two months preceding the hearing he had ceased all improper use of drugs and had taken a substantial step toward full recovery. At the time of the hearing it was undisputed that the husband, who had an associate’s degree in psychology, was employed as an activity therapist at the Springfield Mental Health Center. In that capacity the husband was working with chronic schizophrenics and depressives and was receiving $3.50 per hour for a 40-hour work week. It was also undisputed that the husband himself had been receiving therapy from Dr. Patrick Brophy, a certified psychologist with both clinical and teaching experience.

Dr. Brophy testified on the husband’s behalf, stating that prior to the hearing he had seen the husband on 11 occasions, averaging approximately one hour per visit. Brophy stated that the husband was starting to drop some of his adolescent habits, including “the recreational use of drugs.” Brophy concluded that the son would not be endangered by the husband’s unsupervised visitation. Brophy admitted that in making his prognosis he had not been informed of the extent to which the husband had previously used drugs; however, he stated that such information would be unlikely to change his prognosis.

In contrast to Brophy’s testimony, the wife offered the testimony of the husband’s adoptive father, Alfred Westrick. Westrick stated that he had taken over custody of the husband when he had been orphaned at age 15. He had maintained a close relationship with the husband, and he detailed some of the problems the husband had had with drug overdoses. Although Westrick admitted that he was not aware of the husband’s current emotional outlook, it was his opinion that the husband should not be allowed unsupervised visitation at that time. Westrick stated that he was more fearful of neglect by the husband than of any intentional abuse.

In addition to the evidence concerning the husband’s experience with drugs, there was extensive evidence concerning the husband’s violent nature and suicidal tendencies. Although the husband denied virtually all of the wife’s allegations, the wife testified at length concerning the many times the husband had threatened to take not only his own life but that of his wife and child. According to the wife, the husband was holding firearms when several of the threats were made. The wife also testified about the many times she had been physically abused by the husband. She stated that when she was eight months pregnant the husband had kicked her causing her to fall out of bed. She also told of one incident in which he had grabbed her by the hair and had begun throwing her head against the wall, then threw her to the floor and began choking her. She stated that much of her body had been bruised as a result of that incident and that it took several weeks for some torn ligaments to heal. The wife also testified that shortly after the separation she had tried to keep the husband from being alone with their son, but the husband responded by chasing her out of the house. According to the wife, the husband not only hit her as he chased her but also threw a lamp at her. The wife stated that she had run to a neighbor’s house, only to have the husband knock her against the door of that home. The neighbor also testified to having seen the husband hit the wife, but the husband claimed otherwise, stating that he had slapped his wife and then chased her to the neighbor’s home. He denied striking her in front of the neighbor’s home. The wife also detailed how the husband had spanked their son at least weekly even though the child was well behaved.

Following the presentation of this evidence the court addressed the husband, stating:

“There isn’t any basis here that, that you are the stable person that should have a child to take care of during this time. There’s a further evidence of suicidal tendencies * * °. Now as I said to you, perhaps it is coming, maybe you are being stabilized but the evidence certainly doesn’t show it at this time. And for this reason I would not allow unsupervised visitation.”

The court ordered all visitation to be supervised for six months and that at the end of that time the order would be reviewed. The husband appeals.

On appeal the husband correctly points to a series of cases in which it has been stated that Illinois law favors liberal visitation. (Frail v. Frail (1977), 54 Ill. App. 3d 1013, 370 N.E.2d 303; Hock v. Hock (1977), 50 Ill. App. 3d 583, 365 N.E.2d 1025; Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164; McManus v. McManus (1976), 38 Ill. App. 3d 645, 348 N.E.2d 507.) The husband contends that the trial court failed to comply with this policy only because of his limited financial support of the child and because of his previous conduct. The husband contends that rather than fearing that he posed any present danger to the child, the court was merely motivated by a desire to punish him for his past misconduct. Although such motivation is highly improper and would provide a basis for reversal (Hock; In re Marriage of Lawver (1980), 82 Ill. App. 3d 198, 402 N.E.2d 430), we are convinced that it did not occur here. The record demonstrates that the court was concerned with the child’s welfare, a concern prompted by its findings concerning the husband’s aggressive behavior and suicidal tendencies. Despite the testimony of Dr. Brophy, we are convinced that the findings made by the trial court in this case are fully supported by the evidence.

It has long been recognized that the disposition of matters of child custody and support rest largely in the discretion of the trial court (Rodely v. Rodely (1963), 28 Ill. 2d 347, 192 N.E.2d 347), and findings on these issues will not be disturbed unless they are against the manifest weight of the evidence. (Doggett v. Doggett (1977), 51 Ill. App. 3d 868, 366 N.E.2d 985.) The trial court’s statements showed that it discounted Dr. Brophy’s testimony because of his unfamiliarity with the full extent of the husband’s prior drug problems. The court’s statements also show that it was heavily influenced by the fact that even the husband’s adoptive father would not recommend that the husband have unrestricted visitation. Since the testimony of the husband’s adoptive father evidenced a close relationship with the husband, the trial court was merely confronted with a difference of opinion by two knowledgeable witnesses. We cannot conclude that the trial court’s resolution of the conflicting testimony was against the manifest weight of the evidence. Similarly, we cannot conclude that the trial court placed undue emphasis upon the husband’s past conduct while failing to consider the husband’s current emotional outlook. Admittedly, in determining the best interests of the child the court should consider the most recent evidence of parental fitness. The husband contends that the trial court failed to do this because it all but ignored Dr. Brophy’s testimony. We cannot agree. The record demonstrates that the trial court carefully considered Brophy’s testimony by concluding that although there was evidence of some progress, the court was not convinced that enough progress had been shown. It was undisputed that any progress the husband might have achieved through psychological counseling progress had come about only in the two months preceding the hearing. As a result, the court considered this fact in the context of the behavior the husband had exhibited over the past several years.

On the facts of this case we believe that the trial court could properly find that the husband posed a danger to the child. Nonetheless, the trial court demonstrated concern for the Illinois policy for liberal visitation by ruling that the order requiring supervised visitations would be reviewed in six months. The court was attempting to give the father an opportunity to rehabilitate himself in a relatively short time. We see no error in the trial court’s ruling.

The husband’s final contention is that the trial court failed to comply with section 607 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 607), which provides:

“(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health. If the custodian’s street address is not identified, pursuant to Section 708, the court shall require the parties to identify reasonable alternative arrangements for visitation by a non-custodial parent, including but not limited to visitation of the minor child at the residence of another person or at a local public or private facility.
(b) The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.”

The husband contends that this section requires a formalistic recital by the trial court, and the recital was not in the court’s order. In support of this position the husband cites to Lawver and Crichton v. Crichton (1979), 75 Ill. App. 3d 326, 393 N.E.2d 1319. However, neither of those cases called for a formalistic recital that section 607 had been complied with. Those two cases merely held that before visitation rights could be restricted it would be necessary for the court to find a danger was posed to the child. That standard was fulfilled in this case. Despite the absence of a formalistic recital, the trial court’s reasoning for restriction of visitation rights is undeniably and explicitly set forth in the record, and those findings are supported by the evidence. As this court has recently held, when a statute requires a finding to be made in the record, it is for the purpose of permitting the appellate court to review the reasoning of the trial court. (People v. Pittman (1981), 100 Ill. App. 3d 838, 427 N.E.2d 276.) That purpose was fulfilled here, and a formalistic recital was not required.

For the reasons stated we affirm.

Affirmed.

KASSERMAN, P. J., and KARNS, J., concur.


author: Mr. JUSTICE WELCH Mr. JUSTICE JONES,

text:
    RICHARD E. LYNCH, d/b/a Richard’s Tool and Machine Service, Plaintiff and Counterdefendant-Appellant, v. PRECISION MACHINE SHOP, LTD., Defendant and Counterplaintiff-Appellee.
    Fifth District
    No. 80-128
    Opinion filed October 8,1981.

      JONES, J., dissenting.
    J. Mark Maclin, of DuQuoin, for appellant.
    Richard Kruger, of Kruger & Foster, of Metropolis, for appellee.
   Mr. JUSTICE WELCH

delivered the opinion of the court:

The plaintiff brought suit in the Circuit Court of Perry County to recover amounts alleged to be due him for repairs on various pieces of machinery owned by the defendant. A counterclaim was filed by the defendant, in which it requested damages for the plaintiff’s negligent repair of a Landis #4 Boring Mill. The trial court granted the plaintiff recovery of $2,270 for his work on a tow boat gear box. It was found that the plaintiff was negligent in his work on the mill, so he was denied recovery of $2,441.32 which he sought for that work. The defendant was allowed $9,033.76 in damages, representing the cost of repairing the mill, and $3,300 for extra expenses incurred in completing a job without use of the mill. Plaintiff appeals, arguing that (1) the finding that he was negligent is not supported by the evidence, and (2) the trial court should not have awarded the defendant $3,300 in “lost profits.”

■ Proper assessment of the plaintiff’s contentions requires a review of the facts of this case. From the outset, it should be remembered that his appeal is concerned only with the plaintiff’s repair work on the boring mill, and not with work on the gear box for which he was granted recovery at trial. The mill, which was manufactured around 1920, weighs between 15,000 and 20,000 pounds and was purchased by defendant Precision Machine Shop from Abbott Machinery in 1975. That year, the plaintiff was engaged to work on the mill at Precision’s place of business in Kentucky, and was reimbursed for his labor by Abbott.

From July through September of 1976, the plaintiff did additional repairs on the machine. He was responsible for the repairs performed on the mill, which included work done inside the head stock gear box. This portion of the machine, which is the subject of the allegedly improper repair, measures three feet long, two feet high and one and a half feet deep. The head stock gear box is essentially a hollow cast iron box which contains most of the gear mechanism for the mill. The top quarter of the box is a solid cast iron cover which weighs nearly 500 pounds and is attached by nine bolts and two dial pins. All witnesses at trial agreed that a hoist, several hours and at least two employees would be needed to remove this cover.

Although the gear box is not entirely sealed, the openings in it are few. The cover is perforated with oil holes approximately l/16th to 3/16th’s of an inch in diameter. A hole the size of a fist exists at the back of the box, but because of its location, the hole would not readily admit anything but oil. The plaintiff installed a transmission in that opening the last time he worked on the mill, in March of 1977.

The work done by the plaintiff in 1976 required that the cover to the gear box be removed. When the work was finished, the plaintiff inspected the box both visually and manually for foreign objects. At trial, he testified that the components in the box nested so tightly that any foreign material would prevent the lid from fitting.

Between September 1976 and March 1977, the cover to the gear box was not removed. Precision moved its operations during this time, and the mill had to be transported three miles to its new quarters, but the gear box was not disassembled. The mill was used for about six hours during this period, when one or two wheels were bored. This type of operation, Precision employees testified, did not require complete use of the feed mechanism.

In March 1977, the plaintiff was called in to install a transmission in the hole at the rear of the gear box, as noted above. These repairs necessitated the removal of the cover of the box, and, before it was replaced, the plaintiff inspected the interior of the gear box. The plaintiff performed no further work on the Landis Boring Mill. He was never paid for the 1977 repairs, although his bill for the 1976 maintenance was paid by the defendant.

On both occasions that the plaintiff performed work for Precision and was paid by them, he was reimbursed for his time and material plus expenses, including travel. He employed a contractor who accompanied him to Kentucky to assist in the repairs. The plaintiff performed “some of the work” on the mill in 1976 and 1977, but his primary capacity was supervisory. He testified that in 1976, he and his contractor were assisted by “several” Precision employees, perhaps as many as four, and in 1977, at least one Precision workman helped make repairs on the mill.

After the installation of the transmission, the mill was used without complication for boring two wheels, which took approximately 20 hours. In November 1977, Larry Hays, a Precision employee, used the mill to rebore a machine which Precision had contracted to repair for Westvaco Paper Mill. This required the use of the full feeding mechanism. Hays stated that 10 to 15 minutes into the job, the mill made a “breaking sound” then stopped functioning.

Hays told his foreman, Clifford Browning, of the incident. For the first time since the plaintiff’s last repair work, the cover to the gear box wás removed. Hays and Browning noticed that six teeth were missing from one ring gear, another ring gear was broken and the planetary gear housing was cracked. They discovered a chisel, a section of a file and two brass washers in the oil reservoir. The chisel was chipped in such a way as to suggest that it might have been between the gears. None of these objects, all witnesses agreed, should have been in the oil reservoir, although the two washers should have been attached to parts elsewhere in the gear box. Neither a chisel nor a file was used in removing the cover to the gear box in November 1977, but the plaintiff testified that they were commonly used in the type of work that he had done for Precision. He remembered using a file, but not a chisel, in the gear box in March 1977. Hays, Browning, and the plaintiff thought that it would be difficult, if not impossible, to insert these items into the gear box without removing its cover.

At trial, Hays testified that the 50-weight oil in the oil reservoir was so heavy that the light chisel would almost float in it. He believed that the gears operating at a fast rate of speed would cause enough turbulence for the oil to throw the chisel into the assembly’s gears. In rebuttal the plaintiff stated that several things, including wear due to age, could have caused the damage to the mill, and in his opinion it would be nearly impossible for the oil to throw the chisel into the gear assembly. The whereabouts of the chisel were unknown at the time of the trial, and it was never introduced into evidence.

Precision employees repaired the gear box after it broke. According to Browning, 288/4 hours of regular machinists’ time at $16.50 per hour and 172/á hours of machinists’ overtime at $24.75 per hour were needed to effectuate the repairs. Using these figures, the court awarded Precision $9,033.76 as its cost to fix the mill. Browning also testified that because the mill was inoperable, the Westvaco job had to be done with portable units. The additional work on the Westvaco job totalled 200 hours, or, at $16.50 per hour, $3,300, the figure granted by the trial court.

The plaintiff first argues that the evidence introduced at trial is not enough to prove his negligence. It must be conceded that no direct evidence points to the plaintiff as the source of the foreign material in the gear box. However, the defendant maintains, the proof at trial was sufficiently strong to establish plaintiff’s negligence according to the criteria for circumstantial evidence set forth in the doctrine of res ipsa loquitur.

In order for that doctrine to apply, the defendant in this case must show (1) that it was not at fault in causing the injury, (2) that the occurrence involved “an agency or instrumentality within the plaintiff’s exclusive control,” and (3) that the injury does not normally happen in the absence of negligence. (Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216.) Whether sufficient evidence has been presented to invoke res ipsa loquitur is a question of law. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 207 N.E,2d 305.) The plaintiff does not deny that the first condition has been fulfilled, but contends that the last two conditions were not proven at trial.

Because res ipsa loquitur allows an inference of negligence in instances where one party has greater knowledge of the direct evidence concerning the cause of injury (Woodward v. Mettile (1980), 81 Ill. App. 3d 168, 400 N.E.2d 934), it must be shown that the items which caused the injury were within the exclusive control of that party at the time of the alleged negligence. (Publication Corp. v. Chicago River & Indiana R.R. Co. (1977), 49 Ill. App. 3d 508, 364 N.E.2d 523.) This inference of negligence is not permitted if the control of or responsibility for those items is divided. (Roberts v. City of Sterling (1959), 22 Ill. App. 2d 337, 161 N.E.2d 138; Crump v. Montgomery Ward & Co. (1942), 313 Ill. App. 151, 39 N.E.2d 411 (abstract).) The items in question in this case are the head stock gear box and its contents.

In support of the application of res ipsa loquitur, it should be noted that the plaintiff’s role in the repair work was admittedly supervisory. But this alone does not give him exclusive control over the interior of the gear box. The plaintiff was retained as an independent contractor and was reimbursed for his time and expenses. He was accompanied by an assistant which he had engaged, and he brought at least some of the tools which were used in the repairs, but all work was done at Precision’s Kentucky shop and on all occasions, the plaintiff was assisted by Precision employees. Under these circumstances, the plaintiff’s control of the contents of the gear box was not of a magnitude which would suggest that he had any greater knowledge of the cause of the breakdown than the defendant or its employees. In other words, his authority over the gear box was not shown to have been exclusive.

As there was no direct proof of plaintiff’s negligence in performing the repair work on the mill, and as the evidence of plaintiff’s control of the gear box is insufficient to invoke proof of negligence by res ipsa loquitur, the trial court erred in finding that the plaintiff’s work was performed in a negligent manner. The plaintiff must therefore be given judgment for $2,270.00 for the unpaid work on the tow boat gear box and $2,441.32 for the work on the mill, for a total of $4,711.32. The defendant is to take nothing on his counterclaim.

Affirmed in part, reversed in part.

HARRISON, J., concurs.

Mr. JUSTICE JONES,

dissenting:

I respectfully dissent.

My disagreement with the majority centers upon its reversal of the trial court because the plaintiff’s control over the gear box was not shown to have been exclusive.

As authority for their position that the person or entity must have “exclusive” authority over the instrumentality, the majority cites Spidle v. Steward, decided by our supreme court in February 1980. It is true that the Spidle case does use the term “exclusive control” in listing the three elements necessary to a res ipsa loquitur case. (79 Ill. 2d 1, 5, 402 N.E.2d 216, 218.) Nevertheless, the requirement of Spidle that the person or entity charged under res ipsa loquitur have “exclusive control” of the instrumentality appears unwarranted and fortuitous in view of other authority.

In Spidle the court cites as authority for its “exclusive control” terminology the case of Metz v. Central Illinois Electric & Gas Co. In discussing the res ipsa loquitur doctrine the court in Metz related:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. (Feldman v. Chicago Railways Co., 289 Ill. 25; Bollenhach v. Bloomenthal, 341 Ill. 539.) This in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” (Emphasis added.) (32 Ill. 2d 446, 448-49, 207 N.E.2d 305, 307.)

In subsequent portions of the Metz case the court then uses the standard of “exclusive control” of the instrumentality as a requisite to the application of the doctrine. Thus, the Metz case uses both the terms “primarily in control and management” and “exclusive control.” Both cannot be the standard.

Many Illinois cases which discuss the doctrine relate simply that the person to be charged under res ipsa loquitur must be in “control or management” of the instrumentality causing the injury. E.g., Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 337 N.E.2d 15; Krotke v. Chicago, Rock Island & Pacific R.R. Co. (1974), 26 Ill. App. 3d 493, 327 N.E.2d 212; Wimberley v. Material Service Corp. (1973), 12 Ill. App. 3d 1051, 299 N.E.2d 425.

Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397, was decided by our supreme court subsequent to the Spidle case. In it the court considered the degree of control of an instrumentality that must be exercised by the person being charged under the doctrine of res ipsa loquitur. It listed the three elements necessary for a res ipsa loquitur case and gave as the second, “by an instrumentality or agency under the management or control of defendant.” (Emphasis added.) (83 Ill. 2d 388, 394.) Stated authority for this language was Spidle v. Steward. Spidle, as has been noted, used “exclusive control” rather than “management or control.” Whether the supreme court was intentionally withdrawing their earlier use of “exclusive control” cannot be known. In any event, in the Kolakowski case, they expressly held that the defendant hospital could be liable under res ipsa loquitur despite the fact that surgeons and others were present at and participating in an operation that allegedly resulted in plaintiff’s injury.

“Under the theory advanced by defendant, whenever a doctor acting in the capacity of an independent contractor participates in surgery in defendant’s hospital, the element of exclusive control by the hospital ceases. We believe this approach is manifestly unfair because the physicians and hospital, at the time of surgery, each owed an independent duty to the patient and exercised concurrent control over the operation and equipment.” (83 Ill. 2d 388, 396,415 N.E.2d 397, 401.)

In dispensing with the requirement of “exclusive control” the court adopted the following expression from Ybarra v. Spangard (1944), 25 Cal. 2d 486, 492, 154 P.2d 687, 690:

“ ‘ * * The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation.” ’ ” 83 Ill. 2d 388, 396, 415 N.E.2d 397, 401.

The position of the supreme court, as expressed in Kolakowski, is in keeping with the expression of the Restatement (Second) of Torts §328D (1965). In comment g to that section, “Defendant’s Exclusive Control,” it is stated:

“It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility. He may be responsible, and the inference may be drawn against him, where he shares the control with another, * * *. He may be responsible where he is under a duty to the plaintiff which he cannot delegate to another, " " He may be responsible where he is under a duty to control the conduct of a third person, * * *. It may be enough that the defendant was formerly in control, at the time of the probable negligence, * " *. Exclusive control is merely one fact which establishes the responsibility of the defendant; and if it can be established otherwise, exclusive control is not essential to a res ipsa loquitur case. The essential question becomes one of whether the probable causé is one which the defendant was under a duty to the plaintiff to anticipate or guard against.”

In the case under consideration the plaintiff was an independent contractor who was retained to bring about the repair of the boring mill. The responsibility was exclusively his. All operations were performed under his direction and control. His alone was the responsibility for directing the workmen. That responsibility was not relieved by the fact that some employees of Precision were loaned to him for the performance of the work. The plaintiff did in fact do the work, personally inspected the gear box before reassembly and then supervised the reassembly. All the evidence fuels the ready inference that negligence must have occurred in order for the chisel, file and washers to have been in the gear box after completion of the work by the plaintiff. Under the rules expressed in Kolakowski, Ybarra and the Restatement, plaintiff was obliged to come forward with evidence that would dispel the inference that he exercised the control necessary to the application of res ipsa loquitur. The plaintiff presented no such evidence. Therefore, I would affirm the judgment of the trial court.


author: Mr. JUSTICE GOLDBERG

text:
    REGIONAL TRANSPORTATION AUTHORITY, Plaintiff-Appellee, v. BURLINGTON NORTHERN INC., Defendant-Appellant.—(ILLINOIS COMMERCE COMMISSION, Intervening Appellant.)
    First District (1st Division)
    No. 81-1605
    Opinion filed September 22,1981.

      Richard J. Schreiber, Kenneth J. Wysoglad, and Thomas J. Knapp, all of Chicago, for appellant Burlington Northern Inc.
    Tyrone C. Fahner, Attorney General, of Chicago (James E. Weging and E. King Poor, Assistant Attorneys General, of counsel), for appellant Illinois Commerce Commission.
    Jeremiah Marsh, Michael Schneiderman, Michael M. Conway, and John L. Rogers, III, all of Hopkins & Sutter, of Chicago (Carl J. Frank, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

On motion of Regional Transportation Authority (RTA) the trial court entered a preliminary injunction preventing Burlington Northern Inc. (Burlington) and Illinois Gulf Central Railroad Company from instituting fare increases approved by the Hlinois Commerce Commission (ICC). Burlington has prosecuted this interlocutory appeal. The ICC has become a party by intervention.

Since July 1, 1975, Burlington and RTA joined in a “purchase of service” agreement. (See Regional Transportation Authority Act, Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 701.01 et seq. (RTA Act).) Under that agreement RTA set the fares on which Burlington operated its Chicago metropolitan commuter services. In return, RTA agreed to subsidize Burlington so as to make up any deficit between fare revenues and operating costs. The three-year contract was extended by the parties in 1978 and was due to expire on June 30,1981.

On July 7,1980, Burlington sent RTA a written request to enter into a new purchase of service agreement commencing July 1, 1981. In February, Burlington requested the then current agreement, set to expire on July 1, be extended for one year. In response, on March 31, 1981, RTA tendered Burlington a draft of a new purchase of service agreement to commence on July 1, 1981. Thereafter, Burlington informed RTA it wished to negotiate certain aspects of the new agreement. It is undisputed that the parties have since engaged in contract negotiations but have not finalized a new agreement.

As of January of 1981, because of its financial difficulties","RTA has been unable to meet many of its obligations, including those to Burlington. In early June of 1981, Burlington brought an action against RTA for some $2.4 million in unpaid subsidies accrued as of May 15,1981.

On June 15, 1981, while this action against RTA was pending, Burlington filed a tariff with the ICC requesting a 12.5 percent fare increase commencing July 1. At the same time, Burlington announced its intention of seeking an additional two-tiered fare increase of 20 percent as -of August 1, and 27.5 percent as of September 1. This plan would have resulted in an eventual increase of approximately 60 percent from the fares of June 1981. On June 17, the ICC asserted jurisdiction and approved the initial 12.5 percent increase. On the same day, RTA also announced a 12.5 percent fare increase for all commuter rail service within the system, including Burlington, pending adequate funding by the General Assembly.

These injunction proceedings were filed on June 19,1981. Burlington sought to remove the cause to the Federal court. On motion of RTA the case was remanded to the circuit court of Cook County. (See Regional Transportation Authority v. Burlington Northern Inc. (N.D. Ill, No. 81 C 3487, filed June 23, 1981),_F. Supp.__) On June 24, Burlington received a letter from the RTA which requested Burlington to agree to extend the purchase of service agreement due to expire on June 30, for three additional months. On June 25, an officer for Burlington testified herein that his company “will not accept” this extension of the previous agreement.

After Burlington had filed a tariff with ICC in June, Burlington and RTA held some negotiations regarding their proposed new purchase of service agreement. While no final agreement was consummated, this court was advised on oral argument that negotiations had continued during the current month. Furthermore, Burlington never officially notified RTA it wished to withdraw from the RTA system, nor that it intended not to seek further RTA funding.

In this court, Burlington contends because no agreement between RTA and Burlington was formalized, their association terminated upon the expiration of the purchase of service agreement on June 30, 1981. Therefore, Burlington urges, jurisdiction over fares charged by Burlington reverted to the ICC under the Public Utilities Act. (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 36.) Burlington further contends the application of the RTA Act by the trial court was contrary to the laws and Constitution of the United States, and, even if RTA retained jurisdiction over Burlington fares, the granting of an injunction was nevertheless improper.

The Illinois Commerce Commission contends it has never claimed jurisdiction against a valid and effective purchase of service agreement; the circuit court lacks jurisdiction because RTA failed to take the available legal remedy; and when a public utility terminates its RTA relationship, that utility is under exclusive jurisdiction of the Utilities Act.

RTA asserts the trial court was correct in granting the preliminary injunction because the RTA Act grants the RTA exclusive jurisdiction over fares within the RTA system. RTA maintains Burlington’s written request for a new agreement and RTA’s tender of a draft agreement effectively retained Burlington within the RTA system.

The RTA Act vests in the RTA exclusive authority to set and regulate fares charged and services offered for all transportation agencies within the RTA system. First, the Act provides the setting of fares to be charged is a precondition for any transportation agency to receive RTA funding (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.04):

“Whenever the Authority [RTA] provides any public transportation pursuant to grants made after June 30, 1975, to transportation agencies for operating expenses * * * or pursuant to any purchase of service agreement, the purchase of service agreement or grant contract shall provide for the level and nature of fares or charges to be made for such services * *

Second, the RTA Act exempts the RTA and any transportation agency under its purview from the jurisdiction of the Public Utilities Act and the ICC (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.06(c)):

“The Authority shall not be subject to ‘An Act concerning public utilities’, * * *. Transportation agencies which have any purchase of service agreement with the Authority shall not be subject to that Act as to any public transportation which is the subject of such agreement. No contract or agreement entered into by any transportation agency with the Authority shall be subject to approval of or regulation by the Illinois Commerce Commission.”

Therefore, if some contractual relationship between RTA and Burlington was still in effect after July 1, 1981, the ICC had no jurisdiction to determine the fares to be charged by Burlington, and Burlington had no authority to charge fares not specifically approved by RTA.

The RTA Act prescribes specific requirements by which a legal relationship between the RTA and the various transportation agencies is established (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.02(c)):

“The Authority shall, within 180 days after receiving a written request from a transportation agency ® 6 e, tender and offer to enter into with such transportation agency a purchase of service agreement * *

The above statutory requirement was satisfied by Burlington’s written request for a new agreement dated July 7, 1980, and the subsequent tender of an agreement of RTA. Although the tender of the purchase of service agreement by RTA on March 31, 1981, was beyond the statutory 180 days from the date of the written request by Burlington, the parties agreed to extend the deadline to April 1, 1981. Therefore, the tender of the agreement by RTA was timely.

Section 2.02(c) of the RTA Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 702.02(c)) provides:

“If, following such a request and tender, the Authority and the transportation agency do not agree upon the amount of compensation to be provided to the agency by the Authority under the purchase of service agreement or fares and charges under the purchase of service agreement, either of them may submit such unresolved issues to the Illinois Commerce Commission for determination. The Commission shall determine the unresolved issues in conformity with this Act. * * * [The agreement shall be] effective as of July 1, 1975, or, if the agreement is requested to succeed a currently effective or recently expired purchase of service agreement between the parties, as of the date of such expiration. The decision of the Commission shall be binding upon the Authority and the transportation agency, ° °

Since the cause came on to be heard on a motion for preliminary injunction upon the complaint filed by RTA and the answer filed by Burlington, the trial court did not and could not attempt to determine all of the factual and legal issues presented by this record. The trial court could determine these issues only after a full trial on the merits. The only issues before the trial court and now before this court pertain to the legal propriety of issuance of the preliminary injunction. They are whether RTA has shown a likelihood of success on the merits (see Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B Graphic Arts International Union (1976), 63 Ill. 2d 514, 524, 349 N.E.2d 36), the inadequacy of a remedy at law, and probability of irreparable harm if the preliminary injunction should be denied. Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 712, 390 N.E.2d 68.

“The decision to grant a preliminary injunction rests within the sound discretion of the trial court.” (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 712, citing Stocker Hinge Mfg. Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 643, 377 N.E.2d 1125, appeal denied (1978), 71 Ill. 2d 615.) The role of the reviewing court is restricted to a determination of whether the trial court acted within its broad discretionary powers in granting the preliminary injunction. (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 712, citing Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690, 329 N.E.2d 414, appeal denied (1975), 60 Ill. 2d 602.) In our opinion, RTA has sustained its burden of proof, and the preliminary injunction was properly entered.

The RTA Act imposes certain obligations even in the absence of a finalized purchase of service agreement. For example, the RTA must tender an agreement upon request of a transportation agency, the statute provides for binding arbitration at the request of either party, and the Act specifies such service agreements will be effective retroactively from the expiration date of a previous agreement. Therefore, Burlington and RTA may be legally associated despite the lack of a formal agreement, especially where the parties are currently in the midst of contract negotiations, and where Burlington has never explicitly severed its ties to RTA.

If this court were to accept the reasoning „of Burlington that a transportation agency is never bound in the absence of a final and formal contract, we would allow these various agencies to “shop” between the RTA and ICC and decide at the last minute which of these public agencies offered the most advantageous package. Such an outcome would work substantial instability upon the area’s transportation network, and would be contrary to the legislative purpose of the RTA to provide a public transportation system “which is attractive and economical to users, comprehensive, coordinated among its various elements, economical, safe, efficient and coordinated with area and State plans.” Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 701.02(b).

In addition, RTA did not have an adequate legal remedy. The ICC argues that by failing to appeal the ICC decision directly as provided under the Public Utilities Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 72), RTA did not exhaust administrative remedies, and it is therefore precluded from seeking equitable relief. We disagree.

The supreme court has determined a party need not exhaust the remedies provided in a statute where an administrative rule or order is challenged on its face as not legally authorized. (City of Chicago v. Illinois Commerce Com. (1980), 79 Ill. 2d 213, 217, 402 N.E.2d 595, and cases there cited.) In the case at bar, RTA is raising an issue regarding the jurisdiction of the ICC to approve the fares charged by Burlington. In thus challenging the jurisdiction and therefore the authority of the ICC, RTA is not required to exhaust the administrative remedies provided in the Public Utilities Act. See Illini Coach Co. v. Illinois Commerce Com. (1951), 408 Ill. 104,110, 96 N.E.2d 518; Colton v. Commonwealth Edison Co. (1953), 349 Ill. App. 490, 498, Ill N.E.2d 363, appeal denied (1953), 415 Ill. 631.

RTA was also successful in establishing the probability of irreparable injury if the status quo were not preserved. If Burlington charged fares not approved by RTA, RTA would be impaired in its function of coordinating fares and services of the metropolitan transportation system. The variation in fares could convince people to change their means of transportation. As carefully pointed out by the able trial court, “[stability of ridership during negotiations for subsidies is essential to the overall and proper functioning of the RTA Act.”

The following additional arguments advanced by Burlington are rejected for the reasons stated:

The law imposes no set form for a proper verification. (Boner v. Drazek (1973), 55 Ill. 2d 279, 291, 302 N.E.2d 280.) In the case at bar, we hold the complaint and attendant verification were amply sufficient. The complaint consisted of undisputed and general legal conclusions based on those facts. The facts alleged in the complaint were within the personal knowledge of the party verifying the complaint, and the verification itself was unequivocal. We note also the verification of the complaint was identical to the verification of the verified answer filed by Burlington.

In any event, the pertinent statute requires a verified complaint as a prerequisite to issuance of a preliminary injunction only when the application is made “without previous notice.” (Ill. Rev. Stat. 1979, ch. 69, par. 3. See also County of Lake v. X-Po Security Police Service, Inc. (1975), 27 Ill. App. 3d 750, 755-56, 327 N.E.2d 96.) In the case at bar, previous notice of the application for injunction was served.

In our opinion, the preliminary injunction effectively preserves the status quo. The status quo is “the last, actual, peaceable, uncontested status which preceded the pending controversy.” (Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 481, 368 N.E.2d 990.) Before the injunction was issued on June 29, Burlington was under legal obligation to charge only fares authorized by RTA. The injunction merely secures that status until the case can be tried on its merits.

We now address Burlington’s contentions regarding RTA’s breach of contract and Federal law. We do not believe any breach of contract on the part of RTA would constitute unclean hands, so as to preclude its right to seek equitable relief. Burlington concedes any breach by RTA has resulted from its inability to pay rather than a desire to default on its obligations. The unclean hands doctrine is concerned not so much with the effect of a party’s conduct but with the intent with which acts were performed. (See Barrett v. Carter (1963), 39 Ill. App. 2d 400, 188 N.E.2d 736.) There does not appear to be any malicious intent on the part of RTA regarding any breach of contract. The application of the doctrine of unclean hands lies within the sound discretion of the trial court. (Mascenic v. Anderson (1977), 53 Ill. App. 3d 971, 972, 369 N.E.2d 172.) We find no abuse of discretion in the records before us.

The claims of breach of contract by RTA, and the violation of United States law and Constitution, are affirmative defenses which Burlington may raise in its trial on the merits, but which are not appropriate in the present interlocutory appeal. Constitutionality of statutes should not be decided on a motion for preliminary injunction. (Toushin v. City of Chicago (1974), 23 Ill. App. 3d 797, 803, 320 N.E.2d 202"'- We therefore expressly refrain from resolving the ultimate substantive issues which are raised in the briefs of Burlington and the ICC but were not finally decided by the trial court. We have considered such issues only to the extent necessary to determine if the trial court acted within the bounds of its broad discretionary power to grant preliminary injunctions. Toushin, 23 ILl. App. 3d 797, 802; Frederick Chusid & Co. v. Collins Tuttle & Co. (1973), 10 Ill. App. 3d 818, 821, 295 N.E.2d 74.

The public interest involved in this case demands a prompt trial on the merits as we have already directed. The order for preliminary injunction is affirmed. The case is remanded for trial on the merits.

Order affirmed. Case remanded for trial.

McGLOON and O’CONNOR, JJ., concur.


author: Miss JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY McKIBBINS, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2414
    Opinion filed September 23,1981.

      Ralph Ruebner and Nancy Abrahams, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Mary Ellen Dienes, and Lawrence T. Krulewich, Assistant State’s Attorneys, of counsel), for the People.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, the defendant, Johnny McKibbins, was convicted of murder, armed robbery and armed violence. He was sentenced to concurrent terms of 40 years imprisonment for murder and 30 years imprisonment for armed robbery. No sentence was imposed for the armed violence conviction.

The defendant appeals from these convictions and argues: (1) that he was deprived of a fair trial by lengthy testimony and argument concerning a subsequent offense; (2) that the trial court erred in denying defendant’s motion to preclude evidence of certain of defendant’s prior convictions; and (3) that the sentences imposed by the trial court were excessive.

Prior to trial, the defendant presented two motions in limine to preclude evidence of his involvement in an armed robbery that occurred after the offense for which he was being tried and to preclude evidence of his prior theft convictions. The trial judge denied the former motion because the evidence related to the circumstances of the defendant’s arrest on the instant charges and because that evidence related to motive, custom and design. The defendant’s second motion was denied because the trial court concluded that the evidence of the defendant’s 20 prior theft convictions related to the defendant’s credibility.

The defendant was charged by information with the armed robbery and murder of Clinton Hutchinson that occurred on February 14,1979.

Emma Hutchinson, the victim’s wife, testified that her husband was employed at Mid City Parking located at Clinton Street and Milwaukee Avenue in Chicago. When her husband left for work at about 5 a.m. on February 14, 1979, he was carrying four dollars in change and a French coin dated 1811 which had a hole in the center. Mrs. Hutchinson identified the coin and pictures of her husband.

Investigator Dennis Murphy, a Chicago police officer, testified that on February 14, 1979, he was assigned to investigate the homicide of Clinton Hutchinson. He found the victim on the floor of a small shack located in the middle of the parking lot. The victim had been shot in the right temple. His pockets were turned inside out and the knees of the victim’s pants were soiled. Handcuffs found on the victim’s wrists were made in Taiwan and had the word “Stop” stamped on them. Investigator Murphy identified the handcuffs at trial.

Investigator Murphy further testified that on February 16, 1979, he was assigned to investigate a police shooting at a jewelry store located at 1429 Milwaukee Avenue. While at the store, he spoke to Officer James Kehoe, who showed him a French coin with a hole drilled in the center. The coin had been taken from one of the offenders. At the police station Investigator Murphy questioned the defendant, who was one of the jewelry store offenders. The defendant denied any knowledge of the Hutchinson homicide but did give a statement regarding the jewelry store incident and the shooting of the police officer.

On February 17, 1979, the defendant gave a second statement to Investigator Murphy. The defendant stated that on February 14, 1979, he was driving his car and he picked up Matthews and Brown and drove to 305 North Milwaukee Avenue to rob a parking lot. Matthews and Brown had handguns and handcuffs. The defendant parked his car on the street near the lot, while the other two men went into the parking lot shack with guns. A short while later, Brown and Matthews ran back to the car; and as the defendant drove away, Matthews stated he was “pissed off” because there wasn’t enough money and because “they had to burn the guy.” Brown showed the defendant a coin that he had taken. The coin had a hole in it.

Assistant State’s Attorney Jay Magnuson corroborated the testimony of Investigator Murphy regarding the statement given by the defendant on February 17,1979, at 4 a.m.

Officer William Jaconetti of the Chicago Police Department testified that on February 16,1979, while on foot patrol, he responded to a robbery call at Phillips Jewelers located at 1429 North Milwaukee Avenue. When he arrived at the store, he saw James Matthews, who was standing to the left side of the front door, pull a revolver from his waistband and point it at the back of Officer Louis Trafillio’s head. Jaconetti testified that he told Matthews to “hold it” but Matthews turned and fired his gun at Jaconetti. The bullet blew the zipper off Jaconetti’s jacket, travelled through the lining and exited from the side panel. Jaconetti, in return, fired his gun and struck Matthews. He then peered through the store window and saw the defendant crouched behind a counter. He ordered the defendant to throw out his gun. The defendant did so and was arrested. Officer Jaconetti testified that there were nine hostages lying on the floor behind the counters and in the back room of the jewelry store.

Harold Phillips, the co-owner of Phillips Jewelers, testified that three men entered the store at about 10:50 a.m. on February 16, 1979. Brown held a handgun and announced a holdup. The defendant and the third man went by the watch and ring counters and began emptying the trays of jewelry into bags. The store employees and customers were ordered to lie on the floor. Phillips got down on the floor, and about five minutes later, heard gunshots. He stood up when the police arrived.

Officer James Kehoe of the Chicago Police Department, testified that he also responded to the robbery alarm at 1429 North Milwaukee on February 16, 1979. He heard the radio call that shots had been fired and that a policeman had been shot. When Kehoe arrived, Matthews was lying on the ground outside the store with a gun in his hand. Kehoe recovered the gun and then went inside the store. The defendant and Brown were standing behind counters. The defendant had his hands raised. Two ski caps and a pair of handcuffs were on a jewelry counter and a gun, brown bag, ski cap and second set of handcuffs were on the floor. The bag contained United States currency, watches, rings, a handkerchief, a white work glove and a surgical glove. The two pairs of handcuffs had the word “Stop,” the manufacturer’s name, on them. When Officer Kehoe searched Brown before putting him in the police wagon, he found a foreign coin that had a hole in it.

Investigator William Baldree of the Chicago Police Department testified that he was assigned to the Hutchinson case on February 17, 1979. He interviewed the defendant at approximately 1:30 a.m. on that date regarding the defendant’s involvement in the case. The statement given by the defendant to Investigator Baldree coincided with the statement given to Investigator Murphy. The defendant also told Investigator Baldree that Matthews and Brown had taken two guns and a pair of handcuffs into the parking lot shack.

For the defense, Stephen Murphy, an investigator for the Public Defender’s Office, testified that on the morning of the day he was to testify at the defendant’s trial, he went to two novelty stores in downtown Chicago and purchased a pair of handcuffs at one of the stores. There were 18 pairs of handcuffs available for purchase at the stores and all were made in Taiwan and had the word “Stop” imprinted on them.

Based on the evidence described above, the jury returned verdicts of guilty on all counts.

The defendant’s initial argument on appeal is that he was deprived of a fair trial due to lengthy testimony and argument concerning the jewelry store armed robbery. The defendant contends that his trial on the charges of murder and armed robbery of Clinton Hutchinson became an adjudication of the jewelry store robbery due to the extensive testimony by the police officers, jewelry store owner, and the opening statement and closing argument of the prosecution concerning the other crime.

Generally, evidence of other crimes is inadmissible as proof of guilt for the offense charged. (E.g., People v. Harris (1980), 91 Ill. App. 3d 112, 414 N.E.2d 755; People v. Wallace (1980), 90 Ill. App. 3d 960, 414 N.E.2d 99.) However, such evidence is admissible when relevant for any purpose other than to show propensity for crime. (E. g., People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Gonzales (1978), 60 Ill. App. 3d 980, 377 N.E.2d 91.) As stated in People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492-93:

“Evidence which tends to prove a fact in issue is admissible though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible though it may show the commission of a separate offense. [Citations.]”

Evidence of other crimes also is admissible when relevant to police investigation of the offense at issue where such investigatory procedures involved an integral part of the circumstances of the defendant’s arrest. (People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179.) In determining the admissibility of evidence which informs the jury of a crime independent of or disconnected from the offense with which an accused is being tried, it is necessary to weigh the probative value and strength of such evidence against its probable prejudicial effects. Where the prejudicial impact of evidence concerning an independent crime outweighs its probative value in establishing the guilt of the accused, the evidence shall be excluded. People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148.

The State contends that evidence of the jewelry store robbery was admissible to demonstrate modus operandi and to corroborate the defendant’s confession. The State argues that the evidence concerning the robbery and murder of Hutchinson and the jewelry store robbery demonstrated the following striking similarities: involvement by the same three men, use of the same brand of handcuffs, same treatment of victims by ordering them to lie on the floor, and presence of the coin belonging to the murder victim at the scene of the jewelry store robbery.

Proof of the existence of a common scheme or design and modus operandi requires the existence of similarities so striking that the two crimes appear distinctively identical and can be earmarked as the crime of one man. (People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.) In People v. McDonald and People v. Gonzales, cases relied upon by the State, the defendants’ modus operandi were proved by numerous distinctive similarities. We have reviewed the evidence presented in the instant case and do not find that the similarities argued by the State were so distinctive that they earmarked the defendant as the offender in both offenses. We note that the crimes are actually dissimilar because only two men entered the parking lot shack while three men entered the jewelry store. The parking lot shack was occupied by one person, the victim, while the owner, employees and customers were present in the jewelry store. The State surmises that evidence that Hutchinson’s pants were soiled at the knees is evidence of the fact that he could have been ordered to lie on the floor before he was killed. This, the State contends, was similar to the treatment of the jewelry store occupants who were also ordered to lie on the floor. This conjecture by the State is unconvincing proof of common design. As the evidence of the jewelry store robbery was not so closely connected with the crime for which the defendant was being tried, it did not tend to prove his guilt thereof (People v. Connors) and was thus inadmissible under the modus operand! exception.

We also reject the State’s argument that the evidence pertaining to the jewelry store robbery was admissible to corroborate the defendant’s confession as to the Hutchinson murder and robbery. The evidence of the jewelry store robbery merely corroborated the defendant’s confession as to that armed robbery. We believe the defendant’s confession concerning his involvement in the Hutchinson murder and robbery was adequately corroborated by testimony that the French coin belonging to Hutchinson was taken by the police officers from Brown at the scene of the jewelry store robbery. Thus, the extensive testimony regarding the jewelry store robbery was unnecessary.

We believe that a limited amount of evidence of the jewelry store robbery could have been properly admitted in the case at bar to show the circumstances of the defendant’s arrest and the police investigation of the offense at issue. (People v. Davis.) Such a ruling was made in the factually similar case of People v. Diaz. The defendant in Diaz was being tried for the armed robbery of a tavern. A gun was taken from the tavern owner during that robbery. The defendant was subsequently arrested after an unsuccessful robbery of a pregnant woman. The gun taken in the first robbery was found in the purse of the defendant’s accomplice after the second offense. The court in Diaz held that the testimony concerning the second offense was relevant to show the circumstances of the defendant’s arrest and that the weapon used therein was the one stolen during the commission of the crime at issue. Lengthy testimony regarding the subsequent crime and the defendant’s threats to the pregnant woman and her unborn child were found to be inadmissible because that testimony was not so closely connected with the main issue of the defendant’s guilt of the crime for which he was being tried. The court held that the emphasis of the testimony concerning the subsequent offense and threats could only have inflamed the jury and prejudiced the defendant from receiving a fair trial.

Similarly, we believe testimony regarding the defendant’s arrest, the discovery of the French coin on Brown’s person, and the connection of that coin to the Hutchinson murder and robbery was admissible in the case at bar. However, we also believe that the extensive and detailed testimony and admission of exhibits regarding the armed robbery of the jewelry store were unnecessary and improper. The prejudicial impact of that evidence, including testimony of the shooting of Officer Jaconetti and the taking of hostages, clearly outweighed its probative value in establishing the defendant’s guilt of the crime for which he was being tried. Therefore, we reverse his convictions and remand the case for a new trial.

The defendant’s second argument on appeal is that the trial court erred in denying defendant’s motion to preclude evidence of certain of his prior misdemeanor theft convictions. The defendant argues that the judge did not balance the probative relevance of the prior convictions to the defendant’s credibility against the potential prejudice that could arise due to knowledge of the defendant’s extensive criminal record. The defendant contends that he was denied a fair trial because he was effectively prevented from testifying based on his fear of the prejudicial impact of the State’s disclosure of the prior convictions.

Generally, a theft conviction is admissible for impeachment purposes because there is a reasonable relationship between theft and testimonial deceit. Theft reflects adversely on one’s honesty and therefore relates to one’s ability to be truthful under oath. (People v. Spates (1979), 77 Ill. 2d 193,395 N.E.2d 563.) However, this rule is not absolute. The admissibility of prior convictions for impeachment purposes is discretionary with the trial judge who must weigh the probative value of the convictions against the potential for prejudice. When applying this balancing test, the trial court must consider the following factors: nature of the crime, nearness or remoteness in time of the conviction, the subsequent career of the person, and whether the crime was similar to the one charged. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; see People v. Patterson (1980), 88 Ill. App. 3d 168, 410 N.E.2d 396.) It should also be recognized that the goal of a criminal trial is to dispose of the charge in accordance with the truth. Thus, the trial courts are encouraged to consider the extent to which it is important for the jury to hear the defendant’s story rather than to know of his prior convictions. People v. Montgomery.

In ruling on the defendant’s motion in limine, the trial court held that all of the defendant’s prior convictions, numbering approximately 20, were admissible because they were relevant to the defendant’s credibility. The judge specifically indicated his doubt that anyone would believe a person with 20 prior theft convictions. The defendant relies on this remark and argues that the jury would have been prejudiced by the defendant’s extensive criminal record. Since the trial judge did not limit the number of admissible convictions, the defendant contends that it is obvious that the trial judge did not perform the balancing test required by Montgomery.

We agree with the defendant’s argument. While the defendant’s prior convictions were probative of his credibility, we believe that the admissions of all 20 convictions would have been overly prejudicial. The defendant’s credibility could have been adequately impeached by the introduction of a lesser amount of convictions. Thus, we believe the trial judge erred in denying the defendant’s motion in its entirety.

The third issue raised by the defendant on appeal is that the trial judge abused his discretion in sentencing the defendant to the maximum prison term permitted. In light of our decision to reverse the defendant’s convictions and to remand the cause for a new trial, we need not address the question of whether the defendant was properly sentenced.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

RIZZI, P. J., and WHITE, J., concur.