author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Roy Siewerth, a Minor, by Ralph Siewerth, His Father and Next Best Friend, Plaintiff-Appellant, v. Ruben Charleston, Defendant-Appellee.
    Gen. No. 51,726.
    First District, Third Division.
    November 16, 1967.
    John E. Cunningham, of Chicago, for appellant.
    Dent, Hampton & Doten, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

Plaintiff appeals from a judgment in his favor in the amount of $500.30, and asks that the judgment be reversed and remanded for a new trial on the question of damages only. Plaintiff contends that the damages allowed are totally inadequate and not supported by the record.

Defendant filed a cross-appeal and asks that the judgment in favor of the plaintiff be reversed.

Roy Siewerth, a minor, by Ralph Siewerth, his father and next friend, filed this action against Ruben Charleston for injuries sustained when the defendant’s dog bit the plaintiff on or about the face.

Section 1 of “AN ACT to establish the liability of a person owning or harboring a dog which attacks or injures a person,” (Ill Rev Stats 1963, c 8, par 12d) provides in part as follows:

“If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. . . .”

The facts are these: on June 8, 1963, the plaintiff, Roy Siewerth, who was at that time seven years old, was playing with a playmate, Kevin Charleston, on the front porch or front stoop of the defendant’s home. The boys were playing a game known as tic-tac-toe and were lying on the porch or stoop which was approximately 5 feet by 3 feet in area. A Rhodesian Ridgeback dog was also lying on the porch or stoop. The dog weighed approx-imately 100 pounds and when standing was about 27 inches high at the shoulders. Early in 1963, this female dog had given birth to a litter of nine puppies. About two or three weeks before June 8, 1963, the dog had been struck by an automobile and it was confined to a local animal hospital, where six stitches were placed upon its hind quarter. June 8, 1963, the day the occurrence took place, was extremely hot, nearing 100 degrees.

The evidence also showed that the plaintiff pushed or kicked the dog in the stomach twice prior to the occurrence. His playmate, Kevin Charleston, pushed or kicked the dog about two minutes after the plaintiff had pushed or kicked the dog the second time. The dog growled at plaintiff after each time he kicked or pushed the dog in the stomach, although the dog had never growled at him before, and the boys had played with the dog on many occasions. Plaintiff testified that when he pushed the dog with his feet the dog growled each time and he knew that he made the dog angry each time.

Kevin Charleston’s mother, Barbara Charleston, was in the living room at the time of the occurrence and prior thereto. She had called to the boys to get off the porch when the dog first growled. Roy Siewerth, the plaintiff, testified that he heard Mrs. Charleston yell at him and Kevin to get off the porch only once. The boys remained on the porch. The evidence, however, showed that Mrs. Charleston told the boys to get off the porch twice just before the incident. After the dog growled the second time Mrs. Charleton told Roy Siewerth, the plaintiff, to go home. Roy Siewerth heard her but made no attempt to leave the porch. Prior to the date of the occurrence Mrs. Charleston told Roy Siewerth’s mother that she did not want children on the porch. Mrs. Siewerth, the plaintiff’s mother, also told her own children many times to stay off the Charleston porch. Shortly thereafter, Mrs. Charleston was prompted to go to the front door and noticed the plaintiff bleeding from the face and walking to his home. The evidence showed that the plaintiff, while lying on the porch, bent his head toward the dog and the dog’s mouth came in contact with plaintiff’s face. The dog’s teeth had cut the plaintiff on the forehead partly back of the hairline, and also at the corner between the nose and right eye.

In addition to the foregoing, plaintiff testified that Kevin made the statement to one of two men who had taken statements from Kevin and the plaintiff, that “Lucy was right there and I was kicking him.” When the man asked, “Who was kicking him?” Kevin said, “We both were.” When the man asked the plaintiff whether he was kicking Lucy too, he said, “Me and him did.” When the man asked Kevin how many times he kicked her, Kevin said, “About two or three times.” When the man asked the plaintiff whether he kicked her more than once, the plaintiff nodded his head. He also stated that he remembered kicking the dog twice.

We will first discuss the cross-appeal of the defendant. The defendant raises only one point, namely, that the plaintiff failed to prove all of the necessary elements of the cause of action set forth in the complaint.

In Beckert v. Risberg, 50 Ill App2d 100, 106, 199 NE2d 811, the court said:

“The elements of a cause of action under the statute are (1) injury caused by a dog owned or harbored by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured, and (4) the presence of the person injured in a place where he has a legal right to be.”

The defendant argues that the plaintiff was guilty of provocation and that the attack by the dog was with provocation. The kicking or pushing of the dog by the plaintiff on two occasions, plus the kicking and pushing of the dog by Kevin Charleston, his playmate, sufficiently provoked the dog to constitute a complete bar to this statutory cause of action.

The plaintiff contends that he was bitten by a dog owned by the owner of the home without any provocation on the part of the plaintiff. He further argues that there was no provocation on the part of the plaintiff, as provocation needs intent and there was nothing in the record to show that the minor plaintiff intended to provoke the dog into the action of biting the plaintiff. This contention is without merit. The plaintiff testified that the dog growled after he was pushed or kicked by the plaintiff on each occasion, and that when the dog growled he knew that that made the dog angry. He further stated that the dog had never growled at him before. Even if, as the plaintiff argues, the provocation in the statute needs intent, the record shows intent on the part of the plaintiff. The plaintiff further argues that since he kicked or pushed the dog only twice, after each of which occasion the dog growled, and that subsequently the dog, before biting the plaintiff, was kicked by his playmate, Kevin Charleston, that the bite by the dog was not caused by the provocation of the plaintiff. With this contention we cannot agree. The kicking or pushing of the dog on two occasions by the plaintiff, and subsequently by Kevin Charleston, his playmate, constituted continuous provocation.

The conduct of the plaintiff, coupled with the conduct of Kevin Charleston, was completely sufficient to constitute provocation as contemplated by the statute.

Defendant also argues that the plaintiff failed to prove other necessary elements of the statutory cause of action. The other necessary elements argued by the defendant are that the person injured must be peaceably conducting himself and the person injured must be in a place where he may lawfully be. It is argued that the plaintiff was not peaceably conducting himself by his own admission, and that he was not in a place where he may lawfully be, because he was told to go home by Mrs. Charleston, the defendant’s wife, before the dog bite occurred. We think it unnecessary to discuss these points further, in view of the fact that we are constrained to hold that the attack by the dog was not without provocation.

In view of our holding on the question of liability, it will be unnecessary for us to discuss the plaintiff’s appeal on the grounds that the damages awarded were inadequate. The judgment in favor of the plaintiff is reversed.

Judgment reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Henry L. Ford, Appellant.
    Gen. No. 50,442.
    First District, Second Division.
    November 17, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County (Elmer C. Kissane and David Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The defendant-appellant, Henry L. Ford, was indicted for armed robbery, pleaded not guilty, waived a jury, and was tried in a bench trial. A finding of guilty was entered With the defendant being sentenced to a term of not less than four, nor more than seven years, in the Illinois State Penitentiary. When defendant’s post-trial motions for a new trial and in arrest of judgment were denied, he filed his Notice of Appeal.

The record discloses these facts. On May 4, 1964, an armed robbery occurred at approximately 9 a. m. in the Kostner and Lake Food Market at 310 North Kostner Avenue in Chicago, Illinois. At the trial, the co-owners of the store, Joseph and Daniel Karas, testified that the armed robbery was committed by two unmasked Negro men, who took about fifteen to twenty minutes to commit the offense, during which time they were able to closely observe the robbers. They both identified the defendant in the courtroom as being one of the two robbers and they also testified they had identified him in a five-man police lineup the night following the robbery. Separate lineup identifications were made by Joseph and Daniel Karas, but in the presence of each other.

On cross-examination of Joseph Karas it was learned that the police had held an impromptu four-man lineup on the sidewalk near the robbed store about two hours after the offense, using three Negro passersby, along with the defendant, also a Negro. At this time Joseph Karas did not identify the defendant as the robber. However, on redirect examination of Joseph Karas and on direct examination of Daniel Karas, both testified that the police had told them, prior to their looking at the impromptu lineup, not to make any identification at this time. Detective Stubig later corroborated this testimony by stating that he had given this instruction. The defendant was the only one of those in the four-man impromptu lineup to appear in the five-man lineup, which Joseph and Daniel Karas viewed the next evening in the police station.

Oily Bird Smith also testified for the People stating that he was robbed in this store, by the defendant, as the armed robbery was in progress. He also stated that he saw the defendant put a gun to Daniel Karas and take money from the store’s cash register and he then, in court, identified the defendant as one of the two robbers present in the grocery store. On the night of the robbery, he had identified the defendant in a two-man police lineup, as the dark-skinned Negro who had robbed him and the grocery store as part of the same continuing event.

Roy Neeley testified for the People stating that he was a mechanic in an auto repair shop near the scene of the robbery (approximately a quarter of a mile away) and between 8:30 a. m. and 8:45 a. m. on the morning of the robbery, he saw a powder blue car with a license number beginning with “DB” parked in the alley behind his place of employment. In it were the defendant and another Negro, who drove off in the direction of the Kostner & Lake Food Market. While walking Billy Lane back to the latter’s home, Mr. Neeley saw the powder blue car with “DB” license plates parked on Kostner Avenue near the scene of the robbery. He saw the two men he had seen in the alley earlier, walk rapidly from the store, get into the auto and speed off, with the defendant driving. Then Joseph Karas ran out of his store and exclaimed he had been robbed. Mr. Neeley was with Oily Bird Smith when the latter picked the defendant out of the two-man lineup the night of the robbery and immediately thereafter, Mr. Neeley likewise identified defendant in the same lineup. At the trial, he identified the defendant in the courtroom as one of the two men he had seen in the alley prior to the robbery. He was the same man he had seen leave the grocery store and speed off in the blue automobile immediately before Joseph Karas stated his store had been robbed.

The defendant took the stand, as did his brother, Wallace Ford, who was his alibi witness. Wallace Ford testified that the defendant was with him at his home from 9 a. m. to about noon on the morning of the robbery and hence could not have robbed the grocery store at 9:15 a. m. He also testified that his brother had a thick mustache covering the whole extent of his lip on the day of the robbery.

On the stand the defendant denied participation in any robbery and corroborated his brother’s earlier alibi testimony. He went on to say that he was arrested close to noon on May 4, 1964, and that he had a thick, large mustache on this date. The alibi testimony was contradicted by the statements of the arresting officers, who testified earlier, that they had arrested the defendant between 10 a. m. and 10:15 a. m. He told them he lived with his brother who was working and that no one was home. They allegedly received his consent to search his dwelling. His brother and no one else were found at home between 10:15 a. m. and 10:45 a. m., when the police and the defendant left the premises. Also, Mr. Neeley earlier testified he had witnessed the defendant’s arrest, which took place about one or two hours after the robbery had occurred at 9:15 a. m.

The existence of the defendant’s mustache on the day of the robbery was raised for the first time by the defendant and his brother, on direct examination by defense counsel, as none of the prosecution’s witnesses on direct examination had mentioned its existence. On cross-examination they had testified that the defendant had no markings on his face and nothing in his appearance that would cause them to remember him or to fix his facial features in their mind on that date.

The trial took five days. On the morning of the second day the defendant complained of feeling dizzy and not feeling well physically. The trial was recessed for five hours to permit the defendant to be examined. A competency hearing, suggested by the defendant, was held before the trial judge without a jury, at which time the physician from the Cook County Jail, who had taken a case history from the defendant and had examined him that day, testified for the People that in his opinion the defendant’s physical condition was good, as he had no physical disability and that he understood the nature of the charges against him and was able to cooperate with his counsel. The trial judge then found the defendant competent and the trial continued.

On the third and fourth days, the defendant renewed his plea to have the trial stopped due to his alleged continuing physical ailments, but the trial judge ordered the trial to continue. No competency hearing was held on either day, as the court expressly found the defendant able to cooperate with his counsel.

On the fifth and final day of the trial another competency hearing was held, but this time on the court’s own motion. A physician from Oak Forest Hospital testified that he had examined the defendant earlier in the day and found him to be physically fit. He was able to cooperate with counsel and could understand the charges against him.

On this appeal the defendant-appellant contends that he was denied a fair trial because: (1) his identity as one of the two alleged robbers was not proven beyond a reasonable doubt, due to suggestive police practices in the lineups and due to confusion concerning his mustache; (2) he was denied procedural due process of law in that his competency was not properly resolved by the trial judge; (3) incompetent hearsay evidence was admitted during the trial which was prejudicial; (4) the trial court committed reversible error in granting the defendant’s motion to exclude all witnesses from the courtroom, but in excepting from this order Officer Bartal, the arresting officer.

The State-appellee argues: (1) the testimony of the eyewitnesses was clear and convincing and sufficiently identified the defendant as to prove him guilty beyond a reasonable doubt; (2) the defendant was given the proper procedural hearings on the question of his competency and was correctly found to be competent; (3) the alleged hearsay was not hearsay, but even if it were, it was not properly objected to as hearsay at the trial; (4) a motion to exclude all witnesses from the courtroom rests within the sound discretion of the court and exceptions made will not be disturbed on appellate review in the absence of clear abuse by the trial judge or actual prejudice to the defendant.

The defendant’s first contention concerns his identification in the police lineups. The record does indicate that the defendant was the only person to appear in both the four-man and five-man lineups shown to Joseph and Daniel Karas, who made their identification in each other’s presence. Such police practices may be suggestive, but the manner and method of defendant’s identification is a matter which goes to the weight, rather than to admissibility or competency of identification evidence. People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959). In a bench trial this is for the judge and these suggestive practices were pointed out to him by defendant’s counsel at the trial. He weighed them in determining the credibility of the lineup identifications.

Furthermore, implicit in the defendant’s argument that his identity was not proven beyond a reasonable doubt, due to suggestive police practices at the lineups, is the assumption that the courtroom identification of the defendant as the robber, by Mr. Karas and his son Daniel, was interwoven and dependent upon their earlier lineup identification of the defendant. A reading of the record indicates just the opposite. Mr. Karas (Joseph) and his son (Daniel) were co-owners of the robbed store and both testified that they had observed the defendant, who wore no mask, for fifteen to twenty minutes while the armed robbery was in progress. At times he was very close to them (4-5 feet), so they were able to closely observe him. They then identified defendant in court as being one of the two men who had robbed them and in conclusion they mentioned their identification of the defendant in the later police lineup. Hence, the lineup identification was intended only for corroboration or weight and the courtroom identification did not depend upon it but rather upon the observations of Joseph and Daniel Karas, while the armed robbery was in progress.

The same is true of the courtroom identifications by witnesses Smith and Neeley. They both pointed out the defendant as being one of the two robbers, but their identity testimony at the trial was based upon what they had seen at the scene of the offense and not upon the later lineup. All parties were subjected to vigorous cross-examination regarding their power to observe in the store and to remember at the trial. Their testimony did not change. This puts the challenged lineup identifications in the correct perspective and shows them to have little probative importance in the record, when compared to the observations of the witnesses at the scene of the crime, upon which their courtroom identification of the defendant as one of the robbers is based.

We are aware of the recent United States Supreme Court decision, declaring the right to counsel at lineups as being constitutionally required under the 6th Amendment for a later fair trial, enunciated in United States v. Wade, 388 US 218 (June, 1967), but the broad constitutional principles laid down there have no application to this case.

As for the mustache issue, this rests upon the credibility of witnesses and the weight to be given their testimony. The trier of fact had to determine if he would believe the prosecution’s witnesses, who testified on cross-examination that defendant had no features that would cause them to remember him, or the defendant and his brother, who both testified that the defendant had a mustache on the day of the robbery. This was a bench trial and where a defendant is tried without a jury, the trial judge is peculiarly suited to determine questions of truthfulness and a reviewing court will not substitute its own conclusion, unless the proof is so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. People v. Guido, 25 Ill2d 204, 184 NE2d 858 (1962); People v. Smith, 50 Ill App2d 361, 200 NE2d 748 (1964).

Here we had four witnesses testifying to what they had seen and their testimony remained uncontroverted through vigorous cross-examination which tested their ability to observe the defendant at the robbery scene. It has also been held that the credibility of identification evidence is not destroyed by a failure to describe specifically any particular physical features of a robber. People v. Calloway, 74 Ill App2d 418, 221 NE2d 73 (1966). All of this was for the trial judge as a matter of credibility and an appellate court will not disturb the conviction unless there is a reasonable doubt in the record as to defendant’s identity.

The defendant does attempt to raise this reasonable doubt of identity, justifying reversal of conviction, by citing many cases which are not in point, because although the reviewing court granted reversal due to shaky identification in the cited cases, the facts either had to do with circumstantial evidence only or the existence of strong alibi witnesses, coupled with only one identifying witness for the State, who was not positive of defendant’s identity. None of these circumstances are present here.

The defendant did cite three cases involving mustaches in which the reviewing court reversed convictions due to a reasonable doubt as to defendant’s identity. They are: People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 (1966); People v. Marshall, 74 Ill App2d 483, 221 NE2d 133 (1966); and People v. Gooden, 403 Ill 455, 86 NE2d 198 (1949). However, these cases are distinguishable as they all involved only one eyewitness to the offense, and the Kincy and Gooden cases involved defendants who had numerous, strong and convincing alibi witnesses. In this case the State had three eyewitnesses to the offense along with Mr. Neeley. The defendant offered only his brother, as an alibi witness, whose testimony was contradicted. The existence or nonexistence of a mustache at the time of the robbery was an issue of credibility for the trial judge and in light of the four positive witnesses for the State, all of whom had the ability to observe the defendant during the robbery or soon thereafter, there is no reasonable doubt of defendant’s identity presented in the record.

Defendant’s second argument is that he was denied procedural due process in his competency hearing during the trial. Illinois has always followed the common law in that the trial, adjudication, sentence or execution of a person charged with a criminal offense, while insane, is a violation of due process of law, as is the court’s failure to afford the defendant a hearing on this question of his sanity at trial time. People v. Burson, 11 Ill2d 360, 143 NE2d 239 (1957). This common-law rule was the basis for the enactment of Ill Rev Stats (1961) c 38, §§ 592-593 (since repealed) in which insanity or feeblemindedness was mentioned as the grounds for incompetency.

In 1963 the Legislature drafted the Illinois Code of Criminal Procedure effective January 1, 1964, which expressly extended the grounds of incompetency to include physical conditions, as well as mental, causing the defendant to be unable to understand the nature of the proceedings against him and to assist in his defense. A competency hearing is constitutionally required when there exists a bona fide doubt as to the defendant’s present sanity (and since January 1, 1964, defendant’s present physical ability), brought to the court’s attention on its own motion, or that of defense or prosecution, with the trial court clothed with discretion to determine whether the facts of a particular case warrant a competency hearing or not. People v. Baker, 26 Ill2d 484, 187 NE2d 227 (1962); People v. Milligan, 28 Ill2d 203, 190 NE2d 753 (1963). (Emphasis supplied.)

The new statute states that a trial judge must impanel a jury to decide the defendant’s competency raised once the trial has started, but only if the defendant so elects. If the defendant does not elect to have a jury decide this question, the court itself can render the decision on the defendant’s competency arising while the trial is in progress so as to expedite the trial. See SHA, c 38, §§ 104-1,104-2, and comments thereafter.

In this case the defendant became ill during the trial and the trial judge decided a competency hearing was required. He did not advise the defendant of his election to have a jury trial on this issue of incompetency, and on appeal the defendant argues this was prejudicial error. Neither the briefs of opposing counsel nor independent research has brought to light any Illinois cases on this point. The defendant was represented by counsel of his own choice, who could have advised his client of his statutory elective rights.

It was not error for the trial court to refuse defendant’s plea to produce his own doctor at the first competency hearing, nor to refuse defendant’s plea to produce a psychiatrist. There was a five hour recess before the first competency hearing was held, during which time the defendant could have made an effort to contact and produce his own doctor to testify. His plea, made at the conclusion of the State’s evidence was not timely and furthermore he and his counsel earlier had agreed to a physical examination, to be conducted by a County Jail physician who would testify and this was done. The defendant’s plea for a psychiatrist was immaterial because he was complaining of present physical ills and not present mental ills. The trial judge was also correct in refusing to hold competency hearings during the third and fourth days of the trial, as the defendant was complaining of the identical physical ills that he had experienced the day before when he had been found competent. Hence, the court properly exercised its discretion in refusing to hold another competency hearing.

The defendant’s third contention is that when Officer Evans testified in court to what he had seen Billy Lane do out of court (i. e., pick defendant from a lineup), this was hearsay and defendant’s motion to strike should not have been overruled. The State argues that this was testimony only of a physical fact observed by Officer Evans. Furthermore, it was not objected to at the trial as hearsay and hence, the objection that it was hearsay is waived on appeal. Initially, we must state that Billy Lane’s actions out of court were not conduct as hearsay because his act of picking the defendant out of the lineup was akin to a verbal statement. His act was done for the purpose of a verbal expression. Commentators on the law of evidence have drawn a distinction between acts which are conduct as hearsay (i. e., plaintiff in a suit alleging whiplash injuries trying to testify that a doctor treated her soon after the accident for neck injuries), and conduct which is a “statement” in substance. See McCormick on Evidence (1954), Title 9, pages 471-472.

Although Billy Lane’s out-of-court actions were not conduct as hearsay, when Officer Evans testified concerning them, his testimony was hearsay. The State offered it to prove the truth of the matters asserted therein (i. e., that this was the man Billy Lane saw run out of the grocery store before Joseph Karas stated it had been robbed), but Billy Lane, the person making this assertion, was not present in court to testify and to be cross-examined. A similar situation arose in People v. Reeves, 360 Ill 55, 195 NE 443 (1935), when a police officer was allowed to testify over defendant’s hearsay objection as to what a janitor, (a witness to the offense, but dead at time of trial) said and did at the police lineup. The police officer testified that the decedent said he recognized one of the men in the lineup as the burglar and he pointed out the defendant as that man by walking over and placing his hand on him. On appeal, the Illinois Supreme Court said such evidence was hearsay, and it was error to permit the police officer to testify to the statements made and the things done by decedent by way of identifying the defendant.

Officer Evans’ proffered testimony as to what Billy Lane did out of court in picking the defendant out of the lineup as being one of the robbers was hearsay, but at the trial defendant objected to it not on the ground of hearsay but rather as a conclusion of Officer Evans. It is established by many cases that a specific objection to evidence, based solely on a particular point, is a waiver of objections on all other points not specified or relied upon. Town of Cicero v. Industrial Commission, 404 Ill 487, 89 NE2d 354 (1950). Even if the defendant had preserved the hearsay point at the trial and on appeal, the error in allowing Officer Evans’ incompetent testimony into evidence would not have been prejudicial error in light of all the other evidence in the record proving the defendant guilty of the offense beyond a reasonable doubt.

Finally, the defendant argues he was prejudiced when the trial court granted his motion to exclude all witnesses from the courtroom, with the exception of the arresting officer, Officer Bartal, who was allowed to remain in the courtroom throughout the trial, to aid the State’s Attorney and also to testify. The trial court’s exercise of its discretion will not be disturbed unless a clear abuse of discretion or prejudice to the defendant is shown. People v. Townsend, 11 Ill2d 30, 141 NE2d 729 (1957). Here the court did not abuse its discretion because the record shows the trial judge permitted the arresting officer, at the State’s request, to remain in the courtroom throughout the trial, as an exception to his ruling granting the defendant’s motion to exclude all witnesses. The record also clearly shows that he did this because it was the custom in the Criminal Courts of Cook County to allow such an exception and not for any personal or arbitrary reason of his own. Such a use of the trial court’s discretion was upheld in People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962).

Consequently, the defendant is arguing that this exception to the exclusionary order, concerning witnesses, prejudiced him, since the testimony of the witnesses might have differed had Officer Bartal been excluded from the courtroom. We disagree. The strength of the State’s case rested with the three eyewitnesses to the offense, along with Mr. Neeley, and they testified according to what they had observed on the day of the robbery, without any assistance from Officer Bartal.

For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

BURKE and BRYANT, JJ., concur.


author: MR. JUSTICE BRYANT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roscoe Nelson and Hezekiah Jackson, Defendants-Appellants.
    Gen. Nos. 51,124, 51,125.
    First District, Second Division.
    November 17, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert A. Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

Roscoe Nelson and Hezekiah Jackson were convicted in a jury trial of attempted robbery and sentenced to three to five years in the Illinois State penitentiary. On appeal appellants raise three contentions: (1) the trial court erred in not granting their motion for directed verdict since evidence of the crime charged was insufficient as to Jackson and totally lacking as to Nelson; (2) rulings of the trial court deprived defendants of a fair trial; and (3) remarks of the State’s Attorney in the presence of the jury deprived defendant of a fair trial.

The events upon which these convictions were based occurred on September 20, 1963, at approximately 12:45 p. m. near 63rd Place and Union Avenue, Chicago, Illinois. The State’s witnesses were Chicago Police Officers, William O’Brien, Edward Kodatt and James Peebles. The officers testified to the following version of the occurrence. The three police officers were on duty together. Officer O’Brien was standing on the north side of 63rd Place, approximately fifteen feet east of Union Avenue. Officers Kodatt and Peebles were sitting in an automobile on Union Avenue facing north on the east side of the street about forty feet south of 63rd Place. O’Brien saw three men approaching 63rd Place on Union Avenue from the north. Two of the men, who were identified in court as Nelson and Jackson, walked together. The third, who was identified as George Hammond, followed at a distance of five to seven feet. When the men reached 63rd Place they turned and walked east, continuing on past O’Brien about forty or fifty feet. Nelson and Jackson sat down on a railing. Hammond turned around and returned past O’Brien, made a proposition to do an unnatural act, which O’Brien declined, and continued on past O’Brien two or three feet. At that point the man turned back toward O’Brien with a knife in his hand which he put to O’Brien’s throat and said, “You white M.F., I want all your money.” When Hammond put the knife to O’Brien’s throat Nelson and Jackson ran up and began striking O’Brien. O’Brien stepped back, stated that he was a police officer and drew his gun. Hammond then dropped his knife and ran southwest toward a parking lot. O’Brien pursued Hammond, fired two warning shots which Hammond failed to heed and then fired a third shot which struck Hammond in the ear. Hammond then fell to the ground and was apprehended.

When officers Peebles and Kodatt observed Nelson and Jackson begin to strike at O’Brien they left the vehicle in which they had been seated and ran to his aid. By the time these officers reached the corner of 63rd Place and Union Avenue the three men were in flight. Kodatt joined O’Brien in capturing Hammond. Peebles pursued Nelson and Jackson who were running east on 63rd Place. Peebles arrested Jackson but Nelson escaped. After Jackson and Peebles returned to 63rd Place and Union Avenue Peebles asked Jackson where his partner had gone. Jackson answered that he and Nelson had been sleeping in a car in a parking lot and that Nelson might be found there. The officers went to the car indicated by Jackson where they found Nelson lying on the floor and arrested him. The officers then returned to the scene of the crime and recovered the knife used by Hammond.

At the police station Jackson and Nelson were questioned. Jackson said that he and Nelson had recently come to the city together. They met Hammond who suggested that the three might find someone to rob. Jackson admitted his participation in the robbery attempt. Nelson remained silent. Hammond maintained that he had not seen Nelson and Jackson before he saw them on the street near O’Brien and that suspecting they were about to rob O’Brien he had gone to give aid to the latter.

At trial Hammond testified that he had been in the 63rd Place and Union Avenue area to visit a friend. On his way to his automobile he noticed O’Brien who appeared to be drunk. He also saw two strangers whom he thought were about to rob O’Brien. When he attempted to warn O’Brien, the latter drew his gun on him and two other officers came and began to beat and kick him.

At trial, Jackson denied ever having made any admissions and denied that he had identified Hammond as an associate. Jackson and Nelson claimed that they were innocent bystanders when Hammond attempted to rob O’Brien. Nelson testified that he and Jackson were near the corner when they heard O’Brien shout. They turned around and saw O’Brien with his gun pointed at Hammond. Nelson told Jackson to “come on,” because he didn’t want to get involved. Both walked slowly on but Jackson lagged behind. A short time later officer Peebles ran up and placed Jackson under arrest. Jackson then took the officers to a car outside the building where he and Nelson had been staying. Nelson was found in the car and arrested.

Hammond, Jackson and Nelson were convicted of attempt to commit robbery. This appeal is prosecuted by Jackson and Nelson.

The first contention is that the trial court should have given a directed verdict for appellants because there was no evidence of attempt to commit robbery as to Nelson and insufficient evidence to sustain a conviction of Jackson. We cannot accept this contention. The testimony of officers O’Brien and Kodatt, if accepted as true, is sufficient to prove appellants guilt beyond a reasonable doubt. Appellants walked past O’Brien with Hammond and then paused nearby while Hammond returned to O’Brien. Immediately after Hammond placed his knife to O’Brien’s throat and demanded all his money the appellants pounced upon O’Brien and began to beat him. Appellants argue that neither their intent to commit other than a battery upon O’Brien nor their association with Hammond is shown by this evidence. A specific demand for money is not necessary to prove intent to rob. People v. Leahy, 295 Ill 588, 593, 129 NE 517, (1921). “Although intent is a matter of fact and cannot be implied as a matter of law, criminal intent may be shown by circumstantial evidence.” People v. Perry, 23 Ill 2d 147, 154, 177 NE2d 323, (1961). “. . . (Circumstances may show there is a common design to do an unlawful act to which all assent, and whatever is done in furtherance of the design is the act of all, making each person guilty of the crime.” People v. Washington, 26 Ill2d 207, 209, 186 NE2d 259, (1962). In addition to the officers’ testimony as to the crime itself there was also evidence of Jackson’s police station admissions directly involving Nelson and himself with Hammond in the robbery attempt. Sufficient evidence to support convictions of appellants was admitted.

It is contended that certain rulings of the court deprived appellants of a fair trial. Appellants cite as error the court’s refusal to allow the defense to call as a witness Mr. Zimmerman, one of two State’s attorneys prosecuting the case. Appellants direct our attention to several Illinois cases holding proper the introduction of a prosecuting attorney’s testimony by the State. The situation in the instant case is, however, unusual in that the defense rather than the prosecution sought admission of the prosecuting attorney’s testimony. We are unable to locate Illinois authorities on this precise issue. It is clear that a State’s attorney is not rendered incompetent as a witness simply because he is prosecuting the case. People v. Gerold, 265 Ill 448, 480, 107 NE 165, (1914); People v. Schraeberg, 347 Ill 392, 179 NE 829, (1932). It is also clear, however, that courts do not look with favor upon the introduction of testimony of a prosecuting attorney by either the State or the defense. See Annot 149 ALR 1305 (1944), 97 CJS Witnesses § 113 (1957). The propriety of allowing the prosecutor to testify is a matter largely within the discretion of the trial court. In Gajewski v. United States, 321 F2d 261, at 268, (1963), the court addressed itself to this problem, stating:

“Generally, a trial court has wide discretion respecting examination of witnesses. (Citing cases.) More particularly, under appropriate circumstances, a court may refuse to even allow a witness to take the stand. (Citing cases.) Courts are especially reluctant, and rightfully so, to allow lawyers, including prosecuting attorneys, to be called as witnesses in trials in which they are advocates. (Citations.) Although, as the above authorities indicate, such judicial discretion is generally exercised to prevent testimony by an advocate in favor of the party whom he represents, a court may, without abusing its discretion, refuse to allow the defense to call as a witness the United States Attorney trying the case. Fisher v. United States, 9 Cir, 231 F2d 99, 104 (1956).”

The Eighth Circuit held in Gajewski that it was not an abuse of discretion for the trial court to have required an indication in advance by the defendant of the general nature of the testimony he desired to elicit from the United States Attorney.

In the instant case defense counsel would tell the court only that he wished to call Mr. Zimmerman for the purpose of impeaching some other witnesses in the case. Counsel refused to make an offer of proof which would have demonstrated the necessity of calling specifically State’s Attorney Zimmerman or would have indicated the nature of the impeachment he hoped to accomplish through Zimmerman’s testimony. It was not an abuse of the trial court’s discretion to have required that much of the defense.

We have examined other errors alleged by appellants in the trial court’s rulings or failure to rule. In all instances we find that the court gave adequate and proper rulings upon objections made by appellants’ counsel.

Finally, the appellants argue that remarks of the State’s Attorneys were prejudicial and had the effect of depriving appellants of a fair trial. We have examined the remarks cited and find that they were not prejudicial or, if prejudicial, not substantially so.

The judgments are affirmed.

Judgments affirmed.

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


text:
    George Vander Veen and Patrick Fleming, Plaintiffs-Appellees, v. Yellow Cab Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,471.
    First District, Second Division.
    November 17,1967.
    Rehearing denied January 3, 1968.

      Peter Fitzpatrick, of Chicago (Fitzpatrick, Postilion, Zegiel & Heinemann, of counsel), for appellant.
    Thomas J. Joyce, of Chicago (Coghlan, Coghlan and Joyce, of counsel), for appellees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from judgments entered upon jury verdicts for plaintiffs in the Circuit Court of Cook County.

George Vander Veen and Patrick Fleming (“plaintiffs” herein) are officers of the Chicago Police Department. They brought this action to recover for injuries suffered when the motorcycles they were riding collided with a taxicab owned by the Yellow Cab Company (“defendant” herein).

The accident out of which this suit arose occurred on West Madison Street near the Kennedy Expressway in Chicago. The time was approximately 6:45 p. m. on April 17,1959. Madison Street is an east and west thoroughfare about 50 feet wide, which passes over the expressway at a point between two north and south streets, Halsted Street to the west and DesPlaines Street to the east. As Madison Street crosses the expressway, there is a gradual rise from both directions. At the top of the rise, on the south side of Madison Street, there is a ramp descending to the south to permit vehicles to enter the expressway, which would require the westbound traffic to make a turn to the left across the traffic on Madison Street. A similar ramp descends to the north, enabling westbound traffic to turn to the right.

On the evening in question, the plaintiffs were riding 3-wheel motorcycles eastbound on Madison Street. They stopped for a traffic light at Halsted, the intersection west of the scene of the occurrence. When the traffic light changed in their favor they proceeded eastbound. Plaintiff, Vander Veen, was riding in an easterly direction with the left rear wheel of his motorcycle approximately two feet south of the center line of Madison Street traveling approximately twenty miles an hour. Plaintiff Fleming was driving another 3-wheel motorcycle with its left rear wheel approximately three feet farther south than the right rear wheel of the Vander Veen motorcycle, and the front wheel of the Fleming motorcycle about three or four feet to the rear, or west, of the Vander Veen motorcycle. At the same time a Yellow Cab was proceeding westward in the center lane near the center line. Granderson, the cab driver, intending to proceed down the ramp to the south side of Madison Street into the expressway, turned left, or south, into the oncoming lane. Vander Veen’s motorcycle collided with the left front of the cab which was approximately two feet left of the street’s center line. Vander Veen was thrown forward over his motorcycle and landed on his head on the pavement. Officer Fleming’s motorcycle then struck the rear of Vander Veen’s machine, spun it about, and passed on between it and the curb. As he attempted to bring his careening motorcycle to a stop Fleming was thrown against the south curb of Madison.

Certain facts are in dispute. Plaintiffs testified that the taxicab was in motion at the time of the collision and that it turned without slackening speed. Vander Veen testified that the speed of the cab was 25 miles per hour. Officer Fleming estimated the speed at the instant of impact to have been about 18 to 20 miles per hour. Defendant’s witness, Granderson, testified that his cab was stopped at the moment of impact.

Defendant’s defense was founded on its theory that the plaintiffs were contributorily negligent. Defendant undertook to establish this through the introduction of proof of testimony of the plaintiffs concerning the accident in question in traffic court proceedings against Granderson, defendant’s driver. Defendant argues that testimony given by plaintiffs in that proceeding indicated that the cab may have been stopped at the moment of impact and that plaintiff Vander Veen did not see the cab before the collision. Such evidence would have supported Granderson’s testimony and would have differed from that of plaintiffs in the instant case.

Defendant’s Exhibit Number One was claimed to be a typewritten transcript of the traffic court hearing. Plaintiffs’ objections to the defendant’s attempt to lay foundation for admission of the document through examination of the traffic court reporter, Gillis, were sustained. The court refused admission of the document and also refused defendant’s offer of proof. Statements of the court indicating that defendant should have notified plaintiffs of its intention to introduce the transcript suggest that the refusals were premised upon the Best Evidence Rule. This was erroneous. The Best Evidence Rule is not a bar to the admission of a court reporter’s transcript based upon original shorthand notes recording testimony given on another occasion. The People v. Berry, 309 Ill 511, 514, 141 NE 132, (1923); Hereford v. The People, 197 Ill 222, 238, 64 NE 310, (1902); Cleary, Handbook of Illinois Evidence, 2nd Ed, § 15.4, p 247, and cases cited therein. On appeal the plaintiffs contend that the trial court’s rejection of the transcript was primarily based upon the inadequacy of the foundation laid by defendant for admission of the document. Plaintiffs’ counsel maintains that the plaintiffs denied in the instant case having testified in the traffic court, though it was admitted that they were present and apparently made some statements in the traffic court hearing. Plaintiff cites no authority to the effect that a former witness must admit to having testified on the former occasion in order for that testimony to be introduced in another cause. There is, of course, no such requirement.

Plaintiffs rely upon The People v. Berry, supra, and Luetgert v. Volker, 153 Ill 385, 39 NE 113, in arguing that proper foundation for admission of the transcript required court reporter, Gillis, to testify that plaintiffs had been sworn and had testified on the former occasion, that he had taken down their testimony in shorthand notes and that the transcript in question was a correct and accurate reproduction of his notes. Plaintiffs are correct in their assertion that such qualification of the transcript for admission into evidence was required. Examination of the record, however, reveals that the defendant did attempt to examine Gillis on these matters but was prevented from doing so by plaintiffs’ objections. Defendant should have been given the opportunity to establish the foundation for its evidence. It was not essential that defendant make detailed formal offers of proof when the attitude of the court had become apparent. Chicago & Alton R. R. v. Shenk, 131 Ill 283, 287, 23 NE 436, (1890); Giddings v. Williams, 336 Ill 482, 489, 168 NE 514, (1929). Upon a successful laying of foundation defendant should have been allowed to introduce into evidence the transcript report of plaintiffs’ testimony in the traffic court hearing. The People v. Berry, supra; Hereford v. The People, supra; Luetgert v. Volker, supra; Hanck v. Ruan Transport Corp., 3 Ill App2d 372, 122 NE2d 445, (1954).

Defendant also attempted to introduce the former testimony of plaintiffs through testimony of Robert Jesmer, attorney for Granderson in the traffic court hearing. Plaintiffs contend that since they denied testifying at the traffic court hearing, it was required that Jesmer not only be able to testify that both officers had testified, as he did, but also that he be able to identify both individuals. This is not the law. The rule is that identity of name raises a presumption of identity of person. Gillis testified that he remembered that Vander Veen testified in the traffic court. The legal presumption makes this testimony prima facie admissible. It is not required that the witness be able to identify the person. Sharp v. Sharp, 333 Ill 267, 272, 164 NE 685 (1928). In the absence of evidence to the contrary, evidence of name raises presumption of identity of person. Bell v. Bankers Life and Casualty Co., 327 Ill App 321, 329, 64 NE2d 204 (1945).

Plaintiff also objected to Jesmer’s testimony for the reason that Jesmer admitted he could not recall the precise questions and answers given at the traffic court hearing. This, too, was not a valid basis of objection to Jesmer’s testimony. It is explained in Iglehart v. Jernegan, 16 Ill 513, (1855), that the substance of what a witness said on a former occasion is all that is required. It is stated in Barnett v. People, 54 Ill 325, 330, (1870), that this rule has been consistently followed both in criminal and civil cases. Examinations of Jesmer as to the substance of plaintiff Vander Veen’s testimony in the traffic court hearing, despite his inability to specifically identify Vander Veen and Fleming and his failure to recall precisely the exact questions and answers given, was proper and should have been allowed.

Error is alleged in certain remarks of the trial judge which, it is contended, were prejudicial comment upon defendant’s witnesses and evidence. In particular, defendant calls our attention to statements by the court during the testimony of Granderson. Defendant was undertaking to establish that plaintiffs had testified in the traffic court proceeding against Granderson. Defense counsel’s attempt to examine Granderson on this subject resulted in the following exchange:

“Q. At that time, sir, did the officers testify ?
“A. Yes.
“Mr. Joyce: Objection if the Court please.
“The Court: The objection is sustained.
“Mr. Stanton: May I ask the basis, your Honor, of sustaining—
“The Court: That man doesn’t know what testifying means. He couldn’t identify either one of the officers, here in Court today. So how can he tell us—
“Mr. Stanton: Do you know what it means to testify?
“The Witness: A. Yes.
“Q. What does it mean when you testify ?
“A. When you testify, you give your version of your opinion of what happened.
“Q. And how do you do this, sir ?
“A. By telling someone what happened.
“Q. As you are doing now ?
“A. Right.”

Defendant contends that the Court’s remarks amounted to a degradation of the witness in the eyes of the jury. We do not understand the language of the court to express an opinion upon the integrity or intelligence of the defendant’s witness. Rather, it appears that the court merely wished to call counsel’s attention to the distinction between “testifying” and simply speaking in a courtroom. We cannot assume that the jury understood the court’s meaning to be otherwise. The court’s statement was not a prejudicial comment constituting error.

Defendant alleges error in the court’s having permitted plaintiff Vander Veen to exhibit his feet to the jury. Defendant maintains that this exhibition was for the purpose of demonstrating loss of motion in the toes. Plaintiff’s medical witness did not relate disability in the toes to the accident in question. Defendant cites authorities for the proposition that plaintiff is required to connect up the injury with the accident by medical testimony in order to be allowed to exhibit the injured limb. The defect in defendant’s contention is that examination of the record indicates that the feet were exhibited not to show disability in the toes but rather to demonstrate inflexibility in Vander Veen’s left ankle. Injury to the plaintiff’s ankle was connected with the accident and the trial court did not commit error in allowing the exhibition for the purpose of showing inflexibility of the ankle.

Finally, defendant cites as error plaintiffs’ introduction, in rebuttal, of evidence of a military service injury to plaintiff Vander Veen. We agree that the introduction of this testimony was error. Plaintiff was attempting to dispel any impression that plaintiff Vander Veen’s toe had been injured in a swimming accident. Over defendant’s objection, plaintiff testified in substance that in 1944 during a naval drill he had suffered the loss of seven teeth. Plaintiff admits that this was irrelevant to the accident in issue but contends that it was proper rebuttal because defendant had implanted the suggestion that Vander Veen’s toe injury was connected with a swimming accident. The answer to this argument is that proper and effective rebuttal did not require exposure to the jury of this irrelevant and sympathy-provoking information. In support of their contentions plaintiffs cite Gifford-Wood Company v. Western Fuel Co., 209 Ill App 357, 361, (1918); People v. Bell, 328 Ill 446, 451, 159 NE 807, (1928); City of Sandwich v. Dolan, 141 Ill 430, 31 NE 416, (1892); and Cooper v. Shaffer, 313 Ill App 392, 395, 396, 40 NE2d 622 (1942). These cases are inapposite. They are concerned with principles of law concerning rebuttal evidence generally and with the discretion of the court to receive in rebuttal evidence which more properly should have been offered in the case in chief. There is nothing in the cases cited by plaintiffs which would permit the introduction of irrelevant testimony. This testimony was irrelevant and its admission was error. Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 118, 119, 126 NE2d 731 (1955).

For the reasons stated the judgment of the Circuit Court of Cook County is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded for new trial.

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


text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Robert Johnson, Licensee, and the License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 52,064. (Abstract of Decision.)
    First District, Second Division.
    November 17,1967.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellant; Thomas J. Finnegan and Melvin D. Kanter, of Chicago, for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    County of DuPage, a Body Politic and Corporate, Plaintiff-Appellant, v. W. R. Harris, Executive Airlines, an Illinois Corporation, and Airline Management, Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 67-32.
    Second District.
    November 17, 1967.

      William V. Hopf, State’s Attorney, of Wheaton, and A. M. Peccarelli, George B. Van Vleek, Edgar J. Elliott and Charles J. Clusman, Assistant State’s Attorneys, for appellant.
    George S. Feiwell, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

On October 5,1964, County of DuPage filed a complaint for injunction, which was later amended, against W. R. Harris, Executive Airlines, a corporation, and Airline Management, Inc., a corporation, alleging that the defendants were engaged in certain commercial and business uses of a landing strip or airport; that previously a part of the premises was used as a private landing strip, and part for residential use only; that the prior use as a private landing strip was a nonconforming use; and that defendants’ present use was an unlawful extension of the nonconforming use. The complaint prayed for an in june-, tion prohibiting the use of the premises as a public or commercial landing strip or airport.

The defendants filed a motion to dismiss the complaint on the ground that the court did not have jurisdiction of the subject matter. Defendants’ motion stated that exclusive and primary jurisdiction of the regulation and control of restricted airports is vested in the Department of Aeronautics under the provisions of the Aeronautics Act (Ill Rev Stats 1965, c 15½,pars 22.1-22.83, incl.). The court granted defendants’ motion and plaintiff has appealed.

In its present posture, the only issue before this court is whether the Aeronautics Act was intended to supersede the zoning powers conferred upon counties by the County Zoning Act (Ill Rev Stats 1965, c 34, pars 3151-3162, incl.), insofar as the latter Act relates to air landing strips. Stated differently, did the Aeronautics Act repeal the pertinent sections of the County Zoning Act which confers zoning powers upon the county?

Section 1 of the County Zoning Act (Ill Rev Stats 1965, c 34, par 3151) enacted in 1935, and last amended in 1965, confers upon counties the power to regulate and restrict the location and use of buildings, structures and land “for the purpose of promoting the public health, safety, morals, comfort and general welfare, conserving the values of property throughout the county . . . .” The statute recognizes as an appropriate exercise of the police power the delegation to counties of the power to control the manner of development and use of land. Reasonable limitations on the development and use of private property are essential to the general welfare. Local bodies, counties and municipalities, must have the power to control the present and future nature of land use within their areas to assure the most desirable utilization of such land from the standpoint of the local community and the surrounding landowners. The interests of the owner of a particular parcel of land must be balanced against the interests of others in the area and the surrounding public in general. This is peculiarly a local problem and for that reason is entrusted to the legislation of the local governing bodies.

Section 25 of the Aeronautics Act (Ill Rev Stats 1965, c 15½, par 22.25) declares that its purpose is

“to further the public interest and aeronautical progress by providing for the protection and promotion of safety in aeronautics; by cooperating in effecting a uniformity of the laws relating to the development and regulation of aeronautics in the several states; by revising existing statutes relative to the development and regulation of aeronautics so as to grant to a state agency such powers and impose upon it such duties that the state may properly perform its functions relative to aeronautics and effectively exercise its jurisdiction over persons and property within such jurisdiction, may assist in the promotion of a State-wide system of airports, may cooperate with and assist the political subdivisions of this State and others engaged in aeronautics, and may encourage and develop aeronautics; by establishing uniform rules and regulations, consistent, so far as practicable, with Federal rules and regulations, in order that those engaged in aeronautics of every character may so engage with the least possible restriction, consistent with their safety and with the safety and the rights of others; and by providing for cooperation with the Federal authorities in the development of a national system of civil aviation and for coordination of the aeronautical activities of those authorities and the authorities of this State by assisting in accomplishing the purposes of federal legislation and eliminating costly and unnecessary duplication of functions properly in the province of federal agencies.”

The declared purpose of the Aeronautics Act is to further aeronautical progress. It purports to do so by promoting safety in aeronautics, by cooperating in obtaining uniformity of the laws of the several states regulating aeronautics and uniformity with Federal rules, and by revising existing statutes relative to the development and regulation of aeronautics so that the State may properly perform its functions relative to aeronautics. We cannot uphold the defendants’ contentions or the order of the court below unless this statute, designed to promote aeronautics primarily by means of regulations to increase safety, repealed the pertinent sections of the County Zoning Act which conferred zoning powers upon counties insofar as such zoning powers apply to private landing fields.

There is no express repeal of the County Zoning Act which confers upon the counties powers relative to zoning. If there is a repeal, it must be by implication. Such repeal may arise under either of two general situations: (1) where a subsequent statute covers the whole subject matter of a former one and is intended as a substitute for it (Illinois Cent. R. Co. v. Franklin County, 387 Ill 301, 311, 56 NE2d 775 (1944); People v. Town of Thornton, 186 Ill 162,172,173, 57 NE 841 (1900); Wright v. Stresenreuter Bros., Inc., 234 Ill App 15, 23 (1924)) or, (2) where a subsequent statute’s provisions are so repugnant, to those of the earlier that the two are irreconcilable. (Spaulding School Dist. No. 58 v. Waukegan City School Dist. No. 61, 18 Ill2d 351, 356, 164 NE2d 63 (1960); People ex rel. Bell v. New York Cent. R. Co., 10 Ill2d 612, 620, 141 NE2d 38 (1957).) In all cases, it is the intent of the legislature which is determinative. We are here required to determine whether the legislature intended by the subsequent statute, to repeal the former.

Clearly, the Aeronautics Act was not intended to and does not cover the whole subject matter of the Act conferring zoning powers upon the counties. No repeal may be implied on this ground; consequently, no extended discussion is required on this point.

It is appropriate for us to examine all sections of the Aeronautics Act as well as the County Zoning Act and all other statutes relating to the same subject matter in determining the legislative intent in the enactment of the Aeronautics Act. Petterson v. City of Naperville, 9 Ill2d 233, 243, 137 NE2d 371 (1956). The legislature is presumed to intend to achieve a consistent body of law. As the legislative intent defines the operation of the statute and divulges its purposes and limitations, it may establish or deny a repeal by implication, and it is for this reason that in construing a statute the intent of the legislature is of prime importance.

Section 73 of the Aeronautics Act (Ill Rev Stats 1965, c 15½, par 22.73) dealing with the power of the Department to contract for the removal of or condemn hazards to landing areas acquired or operated by the Department to assure safe approaches to such landing areas, specifically recognizes that such a power might be interpreted as being in conflict with the zoning power. In this regard it states: “This authority shall not be so construed as to limit the rights, power or authority of the State or any muncipality or other political subdivision to zone property adjacent to any airport or restricted landing area pursuant to any law of this State.”

The Airport Zoning Act (Ill Rev Stats 1965, c 15½, pars 48.1-48.112, incl.) empowers the Department to adopt zoning regulations for an airport hazard area related to publicly-owned airports. This Act, however, also expressly recognized the zoning powers of counties. Section 18 of the Act (Ill Rev Stats 1965, c 15½, par 48.18) provides:

“In the event of conflict between any airport zoning regulations adopted under this Act and any other regulations applicable to the same area, whether the conflict be with respect to the height of structures or trees, the use of land, or any other matter, and whether such other regulations were adopted by the political subdivision which adopted the airport zoning regulations or by some other political subdivision, or by the Department, the more stringent limitation or requirement shall govern and prevail.”

Thus, where there appears to be an apparent conflict between the pertinent statutes relating to aeronautics and the zoning powers conferred upon political subdivisions, the former statutes expressly recognize the con-tinned validity of the zoning powers of these political subdivisions of the State.

Such recognition is inconsistent with the inference that the legislature intended to repeal the local zoning powers wherever the question of aeronautics was involved. An examination of all of the provisions of chapter 15%, entitled “Aviation,” reveal an intent to recognize in counties and other local bodies the power to limit the use and development of land in their respective areas. Absent an all embracing scheme on the subject of Zoning in the Aeronautics Act, for such Act to amend the County Zoning Act by implication, a clear intent to so do must be apparent and the two enactments must be repugnant and irreconcilable.

This case is not unlike the situation found in Borough of Kingston v. Kalanosky, 155 Pa Super 424, 38 A2d 393 (1944). There the trial court held that the beverage license law, insofar as it applied to the location of liquor establishments, repealed by implication the general legislative enactment under which local zoning ordinances were adopted. In reversing, the Supreme Court noted that a repeal by implication involves a determination of legislative intent, that such repeals are not favored and will not be found if the two statutes can be construed in any other manner on any reasonable hypothesis or under any fair and reasonable construction. It then stated that both the zoning and beverage license laws were enacted under the police powers of the Commonwealth — one to promote the general welfare by regulating the location, character and use of lands and buildings within a community, and the other to accomplish a like purpose by the regulations of and restraint of liquor traffic. The court held that it was not necessary to view one law as repealing the other, and held that compliance with both laws was required.

Here the Aeronautics Act is designed to promote the public interest and aeronautical progress primarily by promoting safety in aeronautics. The County Zoning Act is designed to promote the general welfare and to conserve the values of property throughout the county by regulating and restricting the location and use of buildings, structures and land. Neither is so repugnant to the other that the two Acts may not exist or be applicable concurrently.

Our courts also have long and consistently held that repeal by implication is not to be favored and will not be found unless there is such a clear and irreconcilable repugnance between two laws that the provisions of both cannot be carried into effect. Wilhelm v. Industrial Commission, 399 Ill 80, 86, 77 NE2d 174 (1948); People v. Mack, 367 Ill 481, 486, 11 NE2d 965 (1937); Hoyne v. Danisch, 264 Ill 467, 483, 106 NE 341 (1914); Village of Ridgway v. Gallatin County, 181 Ill 521, 525, 55 NE 146 (1899); Rawson v. Rawson, 52 Ill 62, 69 (1869).

The County Zoning Act, which confers zoning powers upon counties, was last amended in 1965. Section 1 of the Act expressly provides certain areas of exclusion from the zoning powers of the county, such as depriving the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted. It precludes the imposition of regulations or permits with reference to land or structures used for agricultural purposes, proscribes the right to specify or regulate the type or location of certain public utility equipment as defined in “An Act. concerning Public Utilities,” and provides that said Act shall not restrict the power granted to municipalities which have enacted zoning ordinances which are within areas otherwise subject to county zoning. (Ill Rev Stats 1965, c 34, par 3151.) However, the legislature did not indicate that the county zoning powers were to be abrogated by the Aeronautics Act in those areas where there is a private or restricted air landing area.

We are of the opinion that the control over restricted landing areas conferred upon the Department of Aeronautics by the Aeronautics Act presupposes compliance with local zoning ordinances. In those areas appropriately zoned for restricted landing areas, the Department may then assume jurisdiction and control over the landing area so long as the local zoning ordinances are not violated. Each statute — that relating to aeronautics and that relating to zoning powers — serves a vital part in furthering the general welfare and public interest. There is no reason why those matters related to zoning should not be determined in accordance with the appropriate zoning act and ordinance, and the matters pertaining to aeronautical progress within the restricted landing area resolved pursuant to the provisions of the Aeronautics Act. We do not find the two statutes so repugnant that they cannot both operate conjunctively and without conflict to protect the general welfare and public interest.

The defendants have asserted that “the terms of the Aeronautics Act grants the Department of Aeronautics exclusive primary jurisdiction and require the appellant to exhaust its remedies in the department prior to seeking judicial relief.” Their contention begs the question. They, in effect, assume the dominance of the Aeronautics Act over the County Zoning Act and the powers conferred upon counties thereunder. Such assumption is without legal basis. Since we cannot agree that there is a repeal by implication, the zoning ordinances of the county, adopted under the County Zoning Act, have vitality, and the county is free to enforce such ordinances in a proper legal proceeding.

The complaint alleges that the defendants have extended and altered the prior nonconforming use. This is an appropriate ground on which to base a complaint. Dube v. City of Chicago, 7 Ill2d 313, 322, 131 NE2d 9 (1955). We are of the opinion that the trial court erred in dismissing the amended complaint and the cause should, therefore, be reversed and remanded with directions to reinstate the said complaint, and for further proceedings thereon in conformance with the views expressed herein.

Reversed and remanded with directions.

MORAN and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE MORAN

text:
    Howard Morehead, Administrator of the Estate of Fred C. Morehead, Deceased, for the Exclusive Benefit of Anna L. Morehead and Victoria Morehead, a/k/a Victoria Thompson, Minors, Plaintiff-Appellee, v. Rock Tavern, Inc., a Corporation, d/b/a Rock Tavern, Defendant-Appellant.
    Gen. No. 67-60.
    Second District.
    November 17,1967.
    Rehearing denied December 14, 1967.

      Raphael E. Yalden, of Rockford, for appellant.
    Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Howard Morehead, as Administrator of the Estate of Fred C. Morehead, brought this action against the Rock Tavern, Inc., to recover damages to the means of support of Anna L. Morehead and Victoria Craig Morehead, minors, under what is commonly known as the Dram Shop Act. (Ill Rev Stat 1965, c 43, par 135.)

This suit arises out of the shooting of Fred C. More-head, husband of Anna L. Morehead and stepfather of Victoria Craig Morehead, by Ernest Powell, which shooting took place in the early morning of April 24, 1966, in the parking area outside of the Rock Tavern, Inc., Rockford, Illinois.

The case was tried by jury and a verdict of $8,000 was returned and judgment entered on the verdict, from which judgment defendant appeals.

From the facts it appears that on the evening of April 23, 1966, Ernest Powell went to the defendant-tavern on the outskirts of the City of Rockford, Illinois, arriving about 9:45 p. m., according to his own testimony. Fred C. Morehead and three companions arrived at the Rock Tavern about 12:00 midnight and left about 12:30 a. m., to find a car parked in back of their automobile, prohibiting their moving from their parking space. After attempting to page the owner of the unattended auto, and getting no response, Morehead and his companions proceeded to push said auto out of the way.

Powell was also in the parking area at the time, and during a confrontation, subsequent to the moving of the unattended vehicle, Powell shot Morehead and left in his (Powell’s) own car. Morehead was taken to the hospital by one of his companions, where he subsequently died as a result of his wounds.

Defendant’s appeal requests a new trial, contending that: 1) The court erred in not granting a motion for a directed verdict at the end of plaintiff’s case and 2) The court erred in not granting a motion for a new trial for the reason that the verdict was against the manifest weight of the evidence.

Under direct examination, two of Morehead’s companions, James Thompson and Lee Hicks, used the terms “droopy,” “pretty high” and “he wasn’t real steady” to describe Powell’s condition at the time of the argument. The defendant states that this terminology is inconclusive in showing intoxication. However, any reasonable person must admit that terms such as those used by the witnesses here are frequently used to allude to a state or degree of intoxication. In the case at bar, it would therefore be up to the jury to determine from the testimony, whether Powell was intoxicated. (See Martin v. Blackburn, 312 Ill App 549, 558, 38 NE2d 939 (1942).)

Defendant’s witnesses testified to Powell’s apparent sobriety but if the evidence be conflicting, the controverted question of fact is settled by the verdict. Cox v. Hrasky, 318 Ill App 287, 293, 47 NE2d 728 (1943).

Unless contrary to the manifest weight of the evidence, where the evidence is conflicting upon the issues of fact, the Appellate Court will accept the verdict of the jury, with the approval of the trial judge who heard and saw the witnesses, as decisive of these questions. Village of Dalton City v. Loving, 87 Ill App 520 (1899); Ritter v. Hatteberg, 14 Ill App2d 548, 555,145 NE2d 119 (1957).

Since, only where there is complete absence of probative facts to support a conclusion reached does reversible error appear on account of denial of directed verdict (Nystrom v. Bub, 36 Ill App2d 333, 345-346, 184 NE2d 273 (1962)), this court finds no merit in defendant’s first point.

The law binding on courts of review in the State of Illinois on the contention that the finding of the jury is against the manifest weight of the evidence is clearly stated in Ritter v. Hatteberg, supra:

“A verdict based upon conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence. To be contrary to the manifest weight of the evidence an opposite conclusion m/ust be clearly evident.” (Emphasis added.)

Since it would be impossible to judge an opposite conclusion clearly evident in the case at bar, this court finds no merit to defendant’s second point.

For the reasons heretofore stated, the decision of the Circuit Court of Winnebago County is affirmed.

Affirmed.

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


author: MR. JUSTICE ABRAHAMSON

text:
    Dolores W. Huszagh, Executor of the Last Will and Testament of Theodore W. Huszagh, Deceased, Plaintiff-Appellee, v. City of Oakbrook Terrace, Defendant-Appellant.
    Gen. No. 67-80.
    Second District.
    November 17, 1967.

      Thomas F. Pierce, of Chicago, for appellant.
    Frank E. Mosetick, of LaGrange, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, City of Oakbrook Terrace, appeals from a judgment on the pleadings entered January 31, 1967, in favor of the plaintiff, Dolores W. Huszagh, as Executor of the Last Will and Testament of Theodore W. Huszagh, deceased.

The verified complaint alleged that on or about the 12th day of September, 1962, the City enacted its ordinance “No. 77” entitled “CONTRACT ORDINANCE FOR SPECIAL LEGAL SERVICES.” By the provisions of that ordinance, Theodore W. Huszagh was employed to represent the City in certain annexation proceedings then pending before the County Court of DuPage County. The ordinance further provided that Huszagh was to be paid the sum of $80,000 for his services in this regard but that the fee was to be paid from sales tax revenues derived from the businesses located in the area to be annexed for a period from May 1, 1962, to May 1, 1965. In no event, however, was Huszagh to receive more than one-third of the actual revenues derived during that period. Huszagh acknowledged his acceptance of those terms and signed the “contract ordinance,” which was attached and made a part of the complaint.

The complaint further alleged that Huszagh then proceeded with the annexation and that “he faithfully, honestly and energetically carried out each and every of the terms, provisions and agreements in said contract by him to be performed” and that he completed his work on December 31, 1962. The City paid Huszagh one-third of the monthly sales tax revenues in accordance with the contract until December 20, 1963, but breached it thereafter, according to the complaint, by its refusal to pay him, or his estate after his death in January of 1965, any further sums. The complaint prayed for an accounting of the actual sales tax revenues received by the City from the businesses in the annexed districts prior to May 1, 1965, and for judgment in an amount equal to one-third of those receipts less those sums already paid and not to exceed, in total, $80,000.

The verified answer of the City admitted most of the allegations contained in the complaint. It did deny that any additional sums were owed Huszagh or his estate or that it had attempted to deprive him of his compensation under the terms of “the employment contract” and alleged that the sum of $9,327.47 had already been paid to him prior to his death.

The prayer of the answer stated as follows:

“Wherefore, the Defendant prays this Court to find the agreement between THEODORE W. HUSZAGH and the Defendant, entered into on the 12th day of September, 1962, invalid as a matter of law, and to dismiss the complaint herein for want of equity.”

On the day set for trial the parties stipulated that $9,327.47 had been, in fact, paid to Huszagh under the terms of the agreement and that one-third of the additional sales tax revenues received by the City prior to May 1, 1965, would be $9,644.69. The court then granted the motion of the plaintiff for judgment on the pleadings for $9,644.69 and this appeal followed.

Section 45(5) of the Civil Practice Act (Ill Rev Stats, c 110, § 45) provides that any party may seasonably move for judgment on the pleadings. After the motion is made, the court must examine the pleadings to determine if a factual issue exists or if the matter can be resolved solely as a matter of law. Bleck v. Cosgrove, 32 Ill App2d 267, 273, 177 NE2d 647; Tompkins v. France, 21 Ill App2d 227, 230,157 NE2d 799.

The pleadings here indicate that the parties agree that the ordinance was enacted; that Huszagh performed the agreed services “faithfully, honestly” and completely; that under the terms of the agreement he was entitled to one-third of the revenues derived from May 1, 1962, to May 1, 1965; that he had received $9,327.47 but that no additional sums were paid to him. The accounting requested in the complaint was resolved prior to trial and a stipulation made as to the balance of the revenues derived. Clearly, no factual issue existed and the proceedings could be completely resolved as a matter of law.

The City contends that the contract was invalid because of its alleged violation of section 22 of article 4 of the Constitution of Illinois and certain provisions of the Municipal Code. (Ill Rev Stats, 1965, c 24, pars 3-7-3 and 3-14-4.) It further urges that the contract was a clear violation of public policy and therefore completely void.

Section 33(1) of the Civil Practice Act (Ill Rev Stats, c 110, § 33) provides:

“(1) All pleadings shall contain a plain and concise statement of the pleader’s cause of action, counterclaim, defense, or reply. The common counts shall not be used.”

Section 43 (4) of that Act states:

“(4) The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute or by reason of nondelivery, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.”

The purpose of the pleadings is to narrow and define the issues to be resolved in the lawsuit. To that end, it is necessary that each party include in his pleadings sufficient information to apprise the court and his adversaries as to those issues that he intends to raise at trial. It was the intention of the City to raise the issue of the validity of the contract in reference to its alleged violation of certain constitutional and statutory prohibitions and because it was against public policy. It was therefore the duty of the City to specify the alleged violations in its pleadings with sufficient precision to enable the court and the plaintiff to know what issues were to be resolved at the trial. The general denials of the answer and the bald assertion in its prayer that the “contract was invalid as a matter of law” wholly failed to fulfill that duty and the trial court could quite properly refuse to consider any such defense not specified in the pleadings.

The contention of the City that its alleged affirmative defense was purely a matter of law and that therefore it was not necessary to raise it in the pleadings is incorrect. It is fundamental in the interests of proper procedure that affirmative defenses be adequately raised in the pleadings and the failure to so raise them will be deemed a waiver of the defense. Economy Truck Sales & Service, Inc. v. Granger, 61 Ill App2d 111, 116, 209 NE 2d 1.

The judgment of the trial court will be affirmed for the reasons stated.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Appellee, v. Steven Powers, Appellant.
    Gen. No. 51,899.
    First District, Fourth Division.
    November 20,1967.

      Byron P. Finegan, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Defendant was charged with speeding in violation of section 49(a)(2) UART, Ill Rev Stats (1965), c 95½, § 146. The State’s case was based upon police testimony concerning use of a radar device. Defendant contended that such evidence was improperly admitted because, contrary to statute, the device had not been located at the time more than 500 feet from the sign which indicated the maximum permitted speed. Section 49.01 UART, Ill Rev Stats (1965), c 95½, § 146.01. There was a dispute as to the exact location of the radar unit, it appearing that the testimony of the police witness on an earlier occasion had varied from that which he gave at this trial. The trial judge, however, found defendant guilty.

In this court the State’s Attorney has filed a confession of error and asked that the case be remanded for a new trial. The error suggested has to do with the trial court’s concept of the burden of proof in cases involving an affirmative defense. The judge stated at a post-trial hearing that defendant’s proposition that the radar unit was within 500 feet of the speed sign was an affirmative defense, and that the burden of proving it was on the defendant. We agree with the State’s Attorney that this is an erroneous position, as the defendant need only introduce some evidence of such a defense (if the State’s evidence has not already raised the issue), and when this has been done, the State must then sustain the burden of proof on that issue as well as on the elements of the crime. Ill Rev Stats (1965), c 38, § 3-2.

In People v. Kelly, 66 Ill App2d 204, 209-210, 214 NE2d 290, we held that a confession of error calls for a judicial determination on our part, and we are therefore not bound to recognize the error confessed, nor to adopt the suggested remedy for its cure. As indicated above, our study of the record in this case does lead us to agreement with the parties that reversible error is present here, but defendant urges us to reverse without remand because of total failure of essential proof as to the location of the radar unit. With this position we cannot agree, because there was such required testimony, and it is not our function to determine the degree to which the police witness’ impeachment affected his credibility. That is for the trial court to decide from a better vantage point.

The judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

DRUCKER and McCORMICK, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, Appellee, v. Alvin Chandler, Appellant.
    Gen. No. 52,063.
    First District, Fourth Division.
    November 20, 1967.
    William Woloskin, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Alvin Chandler, and Moczarney Martin were charged in an indictment with the crime of unlawful sale of narcotics. The jury was waived; there was a joint trial before the court, and both defendants were found guilty. Martin took a separate appeal, and the judgment of the trial court was affirmed in People v. Martin, 63 Ill App2d 492, 211 NE2d 753. In that case the court gave a detailed summary of the evidence which was presented before the trial court, and we do not think it is necessary to repeat it in this opinion.

Charles Perry, a police informer, testified. In this court the defendant, Chandler, argues that the testimony of Perry was not corroborated and was not sufficient, standing alone, to sustain the conviction. It is also argued that the testimony of Perry — an admitted addict and police informer — must be closely scrutinized, and that while the State’s evidence places Chandler at the scene of the crime, that fact in and of itself does not establish Chandler’s guilt in participating in the sale of narcotics.

Perry testified that he met Martin on the corner of Madison and Leavitt Streets, Chicago, and indicated to him that he was interested in obtaining narcotics. After they waited on the corner for a few minutes Chandler joined them and was told by Martin that Perry was interested in obtaining narcotics. Chandler told Perry to turn his money over to Martin, after which he left, returning shortly with a tinfoil packet which later proved to contain heroin. Perry then turned the packet over to police officers who had been waiting in a squad car in the vicinity, and pointed out the two men, Chandler and Martin, to the police.

Officer Johnson testified that he saw Perry approach Martin and talk to him, then saw Chandler join them; that he saw Perry hand something to Martin, although he was not close enough to see what it was; and that he saw Chandler leave the other two for a short time and return, after which the three split up and Perry returned to the police with a packet of narcotics he had not previously possessed. This testimony is corroborated by that of Officer Jackson. When Martin was arrested the marked money used in the transaction was found on his person.

We adopt the opinion in People v. Martin, supra, at pages 496 through 498, where the court concluded by agreeing with the following statement of the trial judge:

“I think the testimony of the informer, who has a record, but was under constant surveillance by the police officers, is true, and he is substantiated by the police officers. True, he is not a man of high principles and character. You can’t get a man of that kind to make a purchase for you in this kind of a situation.
“I think his testimony was sufficiently corroborated by the police officers to find both of these men guilty of sale. That will be the finding.”

The judgment is affirmed.

Affirmed.

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


text:
    John L. Giuliano, Plaintiff-Appellee, v. Board of Trustees of the Firemen’s Pension Fund of the City of Elgin, Illinois, Defendant-Appellant.
    Gen. No. 67-53.
    Second District.
    November 21, 1967.
    John P. Callahan, Jr., of Elgin, for appellant.
    Richard W. Husted, of Elgin, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On July 15, 1952, the plaintiff became a member of the Fire Department of the City of Elgin in Kane County. On July 16, 1962, he wrote a letter tendering his resignation which became effective as of that date. The Department records show that the plaintiff was not on the payroll from September 22, 1960, to January 19, 1961, due to illness. The records further show that he did not perform any duties and was off the payroll from April 29, 1962, to July 16, 1962, again apparently due to illness. The plaintiff made voluntary contributions to the fund covering the period of his illness in 1962, but it appears that there was no contribution, voluntary or otherwise, from July 1,1962, to July 15,1962.

Following his resignation, plaintiff made application to the defendant Board for a refund of all sums which he contributed to the fund. The Board held a hearing and denied his petition. Plaintiff then filed a complaint for administrative review and the trial court reversed the administrative agency and directed the refund.

The administrative agency brings this appeal asserting first, that its findings and conclusions are prima facie true and correct; second, that it is under a statutory duty to protect the fund and pay out only to those persons designated by the Legislature; third, that a participant in the fund has no vested right in the contributions made by him; and fourth, that the intent of the statute is to prohibit a refund to those who have served less than ten years.

The applicable statute, at the time of the plaintiff’s resignation, provides in part as follows:

“. . . Any fireman of any such city, township, village, incorporated town, or fire protection district, who after having served ten (10) years and less than twenty (20) years resigns or is discharged from the fire service and who has not theretofore received any disability pension payments, shall be entitled to a refund of the total amount contributed to the fund herein provided for, as a result of deductions from his salary or wages during such period of service, provided, however in the event of his re-employment in the service, such prior period of service shall not be included in determining his eligibility to a pension, unless he reimburses the fund in full for the amount refunded, upon his reentry into the fire service.” (Ill Rev Stats 1961, c 24, § 924.)

It is clear that the pension laws of this state should be liberally construed to effect their purpose. Dannenburg v. Frantz, 41 Ill App2d 150, 154, 190 NE2d 132 (1963).

The parties would have us consider such matters as the intent of the Legislature, the right of the trial judge to reverse the administrative agency on questions which the parties dispute to be law or fact, and whether or not the Board is estopped to refuse making a refund because of statements made to the plaintiff to the effect that if he would resign his contributions would be paid back.

All of the foregoing issues are at most peripheral and their discussion would merely becloud the one issue in the case.

The statute before us is perfectly clear. We do not need the aid of the rules of construction to determine the legislative desire. The Legislature had full power to direct the raising and distribution of the pension fund. We have no right to modify the legislative language and our only duty is to follow that direction, Stiles v. Police Pension Fund, Board of Trustees, 281 Ill 636, 642,118 NE 202 (1917).

The statute in question provides that if a fireman serves ten years and less than twenty years, and then either resigns or is discharged, he is entitled to a refund of the amount contributed by him. The statute simply requires that he serve the time; it does not require that he make the payments because, as the statute indicates, he only gets a refund of those amounts paid by him. The fact that the plaintiff did not make the payment for his last two weeks of service, therefore is immaterial, since, if he did not make the payment, he would not be entitled to a refund of that amount.

The Board argues that the plaintiff did not serve the entire ten years because he was off the payroll on several occasions due to illness. They draw our attention to the paragraph of the same statute which precedes the paragraph hereinbefore quoted and which provides in part as follows:

“In computing the time for the purpose of determining whether a fireman has served twenty years under the provisions of this Section, no furloughs without pay exceeding thirty (30) days in any one year shall be counted, but all leaves of absence on account of any illness of or accident occurring to any such fireman, regardless of the length thereof, as well as all periods of disability retirement for which such fireman shall not have received any disability pension payments under the provisions of Section 5 of this Act shall be counted . . . (Ill Rev Stats 1961, c 24, § 924.)

It appears from the record that all of plaintiff’s absences were due to illness, but even if this were not the case, it is apparent from the language of the statute last cited that the definition of “service” only applies to cases where service has been of twenty years duration and the application is for a pension, not a refund as in the present case. Had the Legislature intended the definition to apply to both pensions and refunds, then they would have said so. The judiciary may not invade the legislative province and extend the statute.

The facts in the case at bar disclose that the plaintiff neither resigned nor was he discharged by the defendant during the period of his employment from July 15, 1952, to July 16, 1962. In other words, he served for ten years without receiving any disability pension payments and therefore is entitled to a refund of his contributions into the pension fund.

Having reached this conclusion, we find it unnecessary to decide the other issues raised by the parties, and the judgment of the trial court is affirmed.

Judgment affirmed.

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