text:
    Jesus Ocasio-Morales, Plaintiff-Appellant, v. Fulton Machine Company et al., Defendants-Appellees.
    (No. 54937;
    First District (4th Division)
    March 14, 1973.

      Mitgang, Levine & Schwartz, of Chicago, (John B. Schwartz, of counsel,) for appellant.
    Jacobs, Williams and Montgomery, of Chicago, (Wyatt Jacobs, C. Barry Montgomery, and J. Scott Myers, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, Jesus Osasio-Morales, brought an action to recover damages ■for personal injuries suffered when a gear broke on a machine he was operating. The jury entered a verdict in favor of defendants, Fulton Machine Company and Chicago Pulley & Shafting Co., and answered two special interrogatories consistent with its verdict. The trial court entered judgment in favor of the defendants and against the plaintiff, from which plaintiff appeals.

On September 12, 1962, plaintiff was injured while operating a Baird Clay Moulding machine for his employer, Weingart Pottery Corporation. The injury to plaintiff’s left hand occurred when a pinion, or spur gear within the machine fractured.

The record reveals that prior to the time the gear broke, in April, 1962, Weingart Pottery Corporation placed an order with Chicago Pulley & Shafting for a pinion gear to replace a worn gear in its Baird Clay Moulding machine. On April 11, 1962, defendant Fulton received an order from Chicago Pulley & Shafting to manufacture a pinion gear per sample. Fulton filled the order and returned the new gear to Chicago Pulley for delivery to Weingart.

Plaintiff first contends that the admissions made by Fulton in its answer to interrogatories submitted to it by plaintiff and by its attorney in his opening statement to the jury should have precluded any testimony by Fulton that it did not make the gear that was fractured, and should have precluded the giving of the special interrogatory as to whether Fulton made the gear which resulted in plaintiffs injury. We are not in accord. Fulton admitted manufacturing a gear per sample, but denied, in its pleadings and throughout the trial, manufacturing the fractured gear which led to plaintiffs injury. It appears to us that the identity of the broken gear was clearly at issue throughout the trial of this case.

Plaintiff next alleges that the trial court erred in permitting Harvey Bauss of the Simmons Boiler & Machine Company to testify on behalf of Fulton. Plaintiff points out that Fulton’s supplemental interrogatory answer filed on May 12, 1969, three days before the cause was assigned for trial, did not list either Harvey Bauss or Simmons Boiler Company employees among persons having knowledge of the facts.

The question of the appropriate sanction, if any, to be employed by the trial court for failure to list a witness in response to a proper interrogatory is within the discretion of the trial court. (Granger v. Turley, 20 Ill.App.2d 488, 491, 156 N.E.2d 610, 612.) Some criteria to weigh in determining whether a sanction should be employed are, surprise to the opponent, the good faith of the party calling the witness, equal opportunity and access of the opponent to interview or depose the witness before trial, and prejudice to the opponent from the testimony. Buckler v. Sinclair Refining Co., 68 Ill.App.2d 283, 290, 216 N.E.2d 14, 18.

The record reflects that on May 12,1969, in an exchange of documents, plaintiff’s counsel received a brochure put out by Simmons on the Baird Clay Moulding machine. The record also shows that Joseph Fox, president of Weingart, testified at his deposition on August 31, 1967, that Weingart had purchased gears from Simmons, the manufacturer of the machine. Under these circumstances, plaintiff could not have been surprised by the testimony of a Simmons employee at trial, and in fact could have contacted the Simmons Company himself.

Bauss stated at trial that he had no knowledge of the lawsuit until one day before he was called as a witness. Thus Fulton’s failure to include him on the list of persons having knowledge of the facts could not have been intentional. Moreover, his testimony that the cause of the fracture was improper installation was merely corroborative of that of Edward McLean and Paul Neiman, and therefore could not have been prejudicial to the plaintiff. Considering all of these factors, we cannot say the trial judge abused his discretion in permitting Bauss to testify.

Plaintiff also contends that the blueprints produced at trial by Bauss, which contained specifications for the pinion gear involved in the occurrence, were improperly received in evidence because they were merely duplicate prints made by Simmons in 1964 from the original 1946 prints. Plaintiff charges that the prints were inadmissible under the best evidence rule. We find no merit to this contention. Bauss testified that a series of smaller sketches and drawings, were consolidated into larger prints in 1964 for reasons of practicality. This was done in the ordinary course of business, long before Simmons was aware of this litigation. Since the firm’s manufacturing business depended upon the accuracy of its prints, it would have had no reason to falsify them.

Plaintiff next objects to the modification of two strict liability instructions by the insertion of the words “by reason of the fact that the defendants failed to supply a pinion gear in accordance with the sample provided.” Plaintiff argues that the modification had the effect of reducing the doctrine of strict liability to plain negligence.

The evidence showed that the defendant received a sample gear to copy. Fulton was given no explanation as to the nature or intended use of the gear. Thus the only duty it had was to manufacture a new gear per sample. In our view, the modification by the court of plaintiff’s instructions correctly expressed this duty.

We note also that Fulton principally defended the lawsuit on two grounds: (1) that it did not manufacture the gear which caused plaintiff’s injury, and (2) that the gear it manufactured was properly made and that the fracture was the result of other causes. The jury in answer to a special interrogatory found that Fulton did not manufacture the gear which caused the injury. Under these circumstances, we are of the opinion that the giving of the instructions did not constitute reversible error.

Plaintiff also complains that certain of defendants’ witnesses were not qualified to give expert opinion as to the cause of the fracture of the gear. We reject this contention. Harvey Bauss testified he had been employed by the Simmons Boiler Company as vice-president in charge of sales and engineering since 1951. He held a masters degree in civil engineering. Edward McLean testified he was an industrial engineer and had been connected with firms that manufacture machine tools and special machinery of all types. Since 1946, he has been an engineering consultant. In February, 1966, he examined a Baird Clay Moulding machine at the Weingart Pottery Company, Paul Neiman, treasurer of Fulton, stated he had been with Fulton since 1934. He testified that he had over 40 years experience with steel and steel products. He had seen and examined the fractured gear which was received into evidence.

Expert testimony is admissible when the witness offered as an expert has peculiar knowledge or experience not common to' the ordinary layman which renders his opinion an aid to the jury. (People v. Jennings, 252 Ill. 534, 550, 96 N.E. 1077, 1083.) The determination of the expert’s qualifications is within the sound discretion of the trial court. (Buckley v. Sinclair Refining Co., 68 Ill.App.2d 283, 293, 216 N.E.2d 14, 19.) We conclude that these three expert witnesses disclosed sufficient knowledge of the subject matter and that the trial court properly permitted them to testify.

We reject the contention that the trial court erred in denying plaintiff’s request that plaintiff’s Exhibit B be admitted into evidence. Joseph Fox, President of Weingart Pottery, testified that Exhibit B “is a gear similar to the one that we would order another gear from, identical in structure.” When asked if it was the sample gear he claimed to have given to Chicago Pulley he answered “I don’t know.” The court correctly ruled that Exhibit B lacked the proper foundation to qualify as real evidence. In Smith v. Ohio Oil Co., 10 Ill.App.2d 67, 75, 134 N.E.2d 526, 530, the Appellate Court described real evidence as the production of some object which had a direct part in the incident. Whether the court should have allowed Exhibit B as demonstrative evidence as an aid to the jury was a matter resting within the discretion of the trial court. We cannot say he abused his discretion in refusing to admit it.

Plaintiff further contends that the verdict and answers to the special interrogatories were against the manifest weight of the evidence. The jury specifically found that plaintiff had not proven that the fractured gear was manufactured by Fulton, or that the gear manufactured by Fulton was not made as per sample. The general verdict was consistent with the answers to the special interrogatories.

The thrust of plaintiff’s objection is that Fulton and Chicago Pulley in answer to interrogatories and in opening argument admitted that Fulton manufactured the fractured gear. We have previously discussed this contention and have pointed out that Fulton only admitted that it made a gear for Chicago Pulley as per sample, but maintained throughout the trial that it did not manufacture the gear which resulted in plaintiffs injury.

Paul Neiman, treasurer of Fulton, testified that the gear his company made, had a set screw and that one hour’s work was charged for putting in a set screw. He stated that he had examined plaintiffs Exhibit A, the fractured gear, and that it did not have a set screw. Furthermore, there was evidence that the fracture was caused by improper installation of the gear and that the key did not fit properly. We conclude that the verdict and answers to the two interrogatories were fully supported by the record and that the judgment entered was not manifestly against the weight of the evidence.

Finally, plaintiff argues that the trial court erroneously excluded an engineering report of the Charles C. Kawin Company. At the request of Fulton, the Kawin Company made an examination of the fractured gear. M. F. Suris, a metallurgical engineer who was the author of the report, died several years before the trial. Plaintiff urges that this report should have been admitted into evidence as an admission of business records under Supreme Court Rule 236, ch. 110A, Ill. Rev. Stat. 1969, par. 236. We do not agree.

The credibility of any business record depends upon the regular, prompt and systematic nature of the entries and the fact that they are relied on in the operation of a business. (McCormick, Evidence (1954), §§ 281-290.) In the situation at hand, not only is the report not a routine business entry, but it was made subsequent to the accident with a view to possible litigation. In our view, the report was clearly inadmissible.

The judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Dagge, Defendant-Appellant.
    (No. 55917;
    First District (4th Division)
    March 14, 1973.

      Charles A. Bellows, of Chicago, (Jason E. Bellows and Ronald N. Heftman, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert C. Samko, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, William Dagge, was convicted of murder after a jury trial and was sentenced to the Illinois State Penitentiary for a term of not less than 14 nor more than 20 years. Defendant raises the following issues' for review:

1. Whether the trial court erred in admitting defendant’s extra-judicial confessions into evidence, as the products of knowing and voluntary waivers of constitutional rights;
2. Whether defendant was proven guilty beyond a reasonable doubt;
3. Whether the trial court erred in refusing defendant’s jury instruction on the admissibility of confessions; and
4. Whether the trial court erred in admitting photographs of the murder scene into evidence.

The facts are as follows:

On October 8, 1969, at approximately 11:30 A.M., the body of Vera Allison was found in her apartment in the building she managed at 4727-31 North Kenmore in Chicago. She had been strangled with the cord from a vacuum cleaner through which a plunger had been inserted and used as a tourniquet. Her dress had been pulled up and her underclothing showed. The metal box in the kitchen closet where, she kept tire rent money she collected was empty. Two photographs showing the body of Vera Allison were admitted into evidence.

At about 10:30 P.M., on the evening of November 6, 1969, defendant William Dagge, entered Chicago Police Department headquarters and told the officer at the information desk that he wanted to be arrested as he had murdered his landlady. The officer detected an odor of alcohol on defendant’s breath, but he did not believe that defendant was drunk. When the officer asked defendant why he had committed murder, defendant replied that he wanted to have sexual relations with the deceased and when she refused they struggled and he killed her. He also stated that he wanted money. The officer’s first thought was that the defendant merely wanted to be arrested so that he could spend the night in the police station out of the cold, but as defendant told his story, the officer believed him, warned him of his rights and called, in detectives.

Two Chicago Police Detectives, officers Hewlett and Skelly arrived at headquarters to question defendant. They were generally familiar with the case of the murder of Vera Allison although they were not aware of all of the specific details involved as they had not been initially assigned to investigáte the case. Defendant was informed of his constitutional rights and he then made an oral statement. He confessed that on the evening of October 8, 1969, he had a “sexual urge” and went to the apartment of Vera Allison to satisfy it. When she refused his advances, defendant related that he strangled her with a cord and a plunger.

The officers then took defendant to their offices at Area Six Homicide where defendant was advised of his constitutional rights and where a written statement was then taken from defendant. In this statement, defendant again set forth how he had murdered Vera Allison and where he had obtained the cord and the plunger. Defendant, however, refused to sign the statement he had given.

James Dagge, defendant’s brother testified that on the night of Vera Allison’s murder, he received a telephone call from defendant, who stated that he was hiding under his bed because of an argument taking place in his landlady’s apartment. Defendant then testified in his own behalf and denied murdering Vera Allison.

Defendant testified that on the evening of October 7, 1969, he was in a tavern and was drinking throughout the evening. At approximately midnight he stated that he took a cab to his apartment to obtain more money to continue drinking. He stated that he was in his apartment for no more than fifteen minutes and returned to his waiting cab which took him back to the tavern. Defendant testified that after the tavern closed, he walked to his brother’s house where he spent the night; He stated that he did not learn of the death of Vera Allison until the following day when he returned to his apartment.

Defendant stated that on the day of his confession he drank heavily and that he knew nothing of the cord and plunger until the police informed him of the way Vera Allison was killed. He also denied stealing any money.

A psychiatrist who examined defendant on April 1, 1970, testified that at the time of his examination he diagnosed defendant as an ambulatory schizophrenic. He stated that it was possible that defendant could have been suffering from delusions when he confessed to the murder of Vera Allison.

At the conference on instructions, defendant tendered an instruction stating that if the jury believed defendant suffered from a delusion that he committed murder at the time he confessed, then the jury should disregard the confession. The instruction was refused by the court.

At the conclusion of the trial, the jury found defendant guilty of murder and after a hearing in aggravation and mitigation, defendant was sentenced to serve not less than 14 nor more than 20 years in the Illinois State Penitentiary.

Defendant’s initial contention on appeal is that the trial court erred in admitting his out of court confessions into evidence. At trial in the instant case, evidence of three out of court confessions by defendant were admitted into evidence. Defendant concedes that the first confession made by him to the officer at the information desk of Chicago Police Headquarters was properly admitted, as defendant was not then in custody and merely volunteered the information. (Miranda v. Arizona, 384 U.S. 436, 444, 16 L.Ed.2d 694, 706, 86 S.C. 1602, 1612; In re Orr, 38 Ill.2d 417, 231 N.E.2d 424.) Defendant maintains, however, that his subsequent oral and written confessions were improperly admitted into evidence as he was not properly informed of his constitutional rights as required by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed2d 694, 86 S.C. 1602. Defendant also contends that he could not have knowingly waived his constitutional rights as he was both severely intoxicated and suffering from schizophrenic delusions when the confessions were made.

Defendant contends that when he made an oral confession to detectives Hewlett and Skelly, who were summoned to police headquarters, he was not properly informed of his constitutional rights. Defendant also maintains that his subsequent written confession which was transcribed at Area Six Detective Headquarters and which recited the acknowledgment of defendant as to his understanding of each of the Miranda warnings, was improperly admitted as it was the direct result of the earlier improperly obtained oral confession.

Detective Skelly testified at a hearing on a motion to suppress the confessions that before defendant made his oral confession at Chicago Police Headquarters:

“I informed the defendant of the constitutional rights.
I advised him he had a right to remain silent, and I asked him if he understood that, and he said he did.
I advised him that he had a right to know that anything he will say can and would be used against him in a court of law.
I advised him that he had a right to have counsel present before any questioning took place.
I advised him if he didn’t have the funds to hire an attorney, the State would furnish an attorney before any questioning took place.
I asked him if he understands it, and he said he did.”

Detective Hewlett, who was a bystander while Detective Skelly advised defendant of his rights and questioned defendant, testified that Detective Skelly advised defendant of all of his rights, but that he (Hewlett) was unable to recite all of the rights required by Miranda which Skelly advised defendant of. Defendant maintains that such a discrepancy between the testimony of the two detectives evidences that defendant was not properly informed of his rights. In People v. Bey, 45 Ill.2d 535, 259 N.E.2d 800, the Illinois Supreme Court considered a case where there were discrepancies in the testimony of the officers present when a defendant was admonished of his Miranda rights. The court held:

“However, their recollection was sufficiently precise to warrant the trial court’s conclusion that the warnings were given in proper form, and minor inconsistencies in their testimony do not cast doubt upon that determination.”

In the instant case, the trial court heard the evidence and concluded that defendant had been properly admonished as to his constitutional rights. Our examination of the record shows that the court did not err in its determination.

Defendant further contends that even if he were properly advised of his rights, he could not have knowingly and understandingly waived his rights to silence and counsel, as he was intoxicated and suffering delusions at the time. Defendant testified that he was drunk when he went to police headquarters and confessed to the murder of Vera Allison and defendant’s brother testified that on the night defendant turned himself in, he was very definitely drunk. Defendant’s brother testified, however, that defendant could stand without assistance and did not stagger. Defendant further testified that he did no drinking after leaving his brother. The officer defendant confronted at police headquarters testified that while there was an odor of alcohol on defendant’s breath, it was not particularly strong. The officer stated that defendant’s speech was not slurred and that his eyes were neither blurred nor bloodshot. The two detectives who questioned defendant also testified that they noticed no indications of defendant’s intoxication.

Dr. Melvin Seglin, a court appointed psychiatrist who examined defendant, testified that in his opinion, defendant was an ambulatory schizophrenic who could have been operating under a delusion when he confessed to the murder of Vera Allison. Dr. Haines, another psychiatrist who examined defendant at the court’s request, however, reported that defendant exhibited no committable mental disease, was aware of the nature of the charge against him, was able to cooperate with his counsel, and had no complaints relating to the nervous system. The three police officers who dealt with defendant at the time of his confessions testified that defendant appeared normal to them. He was responsive to questioning and answered questions intelligently. Also, the officers stated that defendant furnished details of how the killing was committed.

In affirming a burglary conviction of a defendant who claimed he was incompetent to knowingly and voluntarily waive his rights under the Fifth and Sixth amendments to the United States Constitution, this court held in People v. Noonan, 5 Ill.App.3d 1109, 284 N.E.2d 446, that:

“The warnings given the defendant complied with the constitutional requirements set out in Miranda v. Arizona (1967), 384 U.S. 436. Whether he understood and waived them was a factual question, the answer to which depended upon the acceptance or rejection of the defendant’s testimony or that of the police officers. The credibility and weight to be given to the testimony of witnesses is a matter to be determined by the trial judge. His determination will not be reversed unless it appears to be palpably erroneous. (People v. Weller (1970), 123 Ill.App.2d 421, 258 N.E.2d 806. Cf. People v. Johnson (1969), 112 Ill.App.2d 148, 251 N.E.2d 393.)”

In the instant case we find that the trial judge did not err in finding defendant knowingly and voluntarily waived his rights and that his confessions were properly admitted.

Defendant next contends that he was not proven guilty beyond a reasonable doubt. Defendant again argues that his confessions were improperly admitted and he contends that as .those confessions were relied upon by the jury in finding him guilty, he was therefore not proven guilty beyond a reasonable doubt.

We have already decided in the instant case that the trial court did not err in admitting defendant’s confessions into evidence. Where there is evidence that a crime has been committed, the confession of a defendant that he committed the crime can be sufficient for conviction. (People v. Underhill, 38 Ill.2d 245, 230 N.E.2d 837, cert. denied 391 U.S. 912; People v. Melquist, 26 Ill.2d 22, 185 N.E.2d 825, cert. denied 372 U.S. 967.) In the case at bar there was ample evidence that Vera Allison had been murdered by being asphyxiated through pressure applied by a vacuum cleaner cord tightened about her neck with the handle of a plunger. Defendant on three separate occasions confessed that he had committed that crime and gave details of how he had accomplished it. All of the specifics of the crime related by defendant were found to be correct. How much credibility to. be afforded such confessions as well as defendant’s denial of his guilt at trial and such inferences raised by defendant at trial as to the State’s failure to find his fingerprints at the scene, were properly weighed by the jury and a court of review will not substitute its judgment for that of the trier of fact, unless the evidence is so improbable or unreasonable as to leave a reasonable doubt. (People v. Davis, 5 Ill.App.3d 95, 283 N.E.2d 317.) Our examination of the record in the instant case reveals that defendant was convicted of murder beyond a reasonable doubt.

Defendant’s third contention on review is that the trial court erred in refusing to give Defendant’s Instruction No. 7 to the jury. The refused instruction stated:

“The Court instructs the jury that if they find from the evidence that the defendant made an oral and written confession while suffering from a delusion that he committed the offense charged in the indictment, then the jury is to disregard the confessions.”

The court instead gave Peoples Instruction No. 8 (I.P.I. Criminal No. 3.07) which stated:

“You have before you evidence that the defendant confessed that he committed the crime charged in the indictment. It is for you to determine whether the defendant confessed, and, if so, what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all of the circumstances under which it was made.”

Defendant contends that as his theory was that he was suffering from a schizophrenic delusion at the time of his confession, it was necessary that his Instruction No. 7 be given to the jury. It is the function of the trial court, however, to determine whether a confession was voluntarily made after a knowing waiver of one’s rights and it is the function of the jury to determine what weight should be given such confession, once the court rules on its admissibility, People v. Kemp, 29 Ill.2d 321, 194 N.E.2d 217. People v. Stacey, 25 Ill.2d 258, 184 N.E.2d 866, cert. denied, 371 U.S. 964.

In the instant case, the trial court found that the confessions were admissible as they were voluntarily made by defendant after a knowing waiver of his rights. It is not the province of the jury to disregard and thus totally fail to consider a confession which the trial court has received in evidence, as Defendant’s Instruction No. 7 would have them do, though what weight, if any, they subsequently afford that confession is wholly within the province of the jury. (People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466.) Defendant’s Instruction No. 7 was properly refused.

Defendant’s final contention on appeal is that the trial court erred in admitting into evidence photographs of the deceased which he contends were inflammatory and prejudicial.

The admission of photographs at trial rests within the sound discretion of the trial court and the exercise of that discretion will not be interferred with unless it is shown that there has been an abuse to the accused’s prejudice. People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, cert denied 396 U.S. 1016; People v. LeMay, 35 Ill.2d 208, 220 N.E.2d 184.

Photographs may be admissible to establish facts in issue and to corroborate facts set forth in a confession. (People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, cert. denied 396 U.S. 1016.) In the instant case, the State’s case rested upon the confessions by defendant and corroboration of the facts in the confessions. Defendant attacked the confessions and his theory was that he was under a delusion that he killed the deceased at the time of his confessions. A psychiatrist testified that such a delusional state was possible. Defendant testified that he guessed at the details of the manner in which the homicide was committed. The trial judge found that the photographs in question tended to corroborate the State’s witnesses and to refute defendant’s testimony that he made up the details of the slaying and concluded that such photographs should be admitted. We find that the trial court did not abuse its discretion in allowing the photographs into evidence.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    Ida Anne Carrothers, Plaintiff-Appellant, v. Knights of Columbus, Defendant-Appellee.
    (No. 56025;
    First District (4th Division)
    March 14, 1973.

      Coghlan and Joyce, of Chicago, (George J. Murtaugh, Jr., of counsel,) for appellant.
    Alex Devience, Jr., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This action was commenced by Ida Anne Carrothers to recover benefits payable under the terms of a policy of life insurance issued to her deceased husband by the defendant, Knights of Columbus.

On March 1, 1967, the plaintiff filed her complaint in the Circuit Court of Cook County, and on April 7, 1967, the defendant filed its answer. On April 24, 1970, the defendant moved for judgment on the pleadings, which was denied. The cause came on for trial on July 1, 1970. At the close of the plaintiff’s evidence the defendant moved for a judgment in its favor. The trial court granted this motion and entered judgment accordingly. On July 24, 1970, the plaintiff filed a post-trial motion requesting that this judgment be vacated. On November 4, 1970, the court granted the post-trial motion, vacated the judgment previously entered and entered judgment for the plaintiff. On November 24, 1970, the defendant filed a motion to vacate the judgment entered on November 4. This motion was granted and the cause was set for the presentation of the defendant’s evidence. After hearing the defendant’s evidence, the court on February 26, 1971, entered judgment for the defendant, and the plaintiff brought this appeal. On appeal, she contends that the judgment for the defendant was contrary to law and against the manifest weight of the evidence.

The pertinent facts may be summarized as follows. On May 21, 1956, Fred J. Carrothers, the deceased, joined the Knights of Columbus, a fraternal organization carried on for the mutual benefit of its members. Mr. Carrothers paid an initial premium of $41 and continued to pay monthly premiums of $41, in return for which he received a policy of life insurance. Under the terms of this policy, the Knights of Columbus agreed, among other things, to pay the sum of $10,000 upon receipt of proof of the death of the insured as a result of bodily injuries effected “directly and independently of all other causes through external, violent and accidental means within ninety days from the date of the accident which shall have caused such injuries * # 6.” Excluded from coverage was death resulting from a number of enumerated causes, among which were “injury intentionally inflicted by another person”; “committing an assault or felony” and “disease or infirmity of mind or body”.

On December 18, 1965, while this policy was in effect, Mr. Can-others made a trip to a shopping center on the south side of Chicago. While there he became involved in an altercation with Thomas Ridgeway, another motorist, who accused Mr. Carrothers of taking his parking space. Ridgeway dragged Mr. Carrothers from his automobile, struck him twice and slashed him on the face with a pocket knife. Police officers summoned to the scene placed Mr. Carrothers in a squadrol for transportation to a hospital, but he collapsed enroute and was pronounced dead at the hospital approximately 50 minutes after the incident. The Cook County Coroner’s office performed an autopsy and stated the cause of death as an “acute myocardial infarction.”

In the trial court it was the plaintiff’s theory that the altercation in the parking lot was the direct and proximate cause of the myocardial infarction which ultimately led to Mr. Carrothers’ death, and therefore that the. death was accidental within the meaning of the policy.

Mrs. Carrothers, the plaintiff, testified that her husband was in good health on the day of his death and that he went to work that morning. He had not missed any days of work during the previous year because of illness. She further testified that her husband had been seeing a “weight doctor” prior to his death and was on a diet, but had never seen a doctor in connection with any heart difficulty.

Dr. Eugene Tapin, the coroner’s pathologist, testified that he found congestion in the deceased’s lungs, a condition which occurs in cases of heart failure. Upon examination of the deceased’s heart, Dr. Tapin found that:

“The main branch of the heart was moderately mildly hardened by deposition of calcium and cholesterol, which is fat; [t]hat the origin of the coronary arteries was narrow to a pinpoint, and the heart per se was found to have an infarct, an extension of an infarct of recent origin, and the coronary arteries that feed the muscle of the heart were very narrow to a measuring of one to two millimeters, the wall was very thick and, again, thickened by calcium and deposition of fats, which is called cholesterol.”

Based upon these observations Dr. Tapin diagnosed the cause of death as “acute myocardial infarction”. Dr. Tapin further testified that in his opinion an infarction occurs when “the heart rate demands the muscle for more oxygen and the pipes that fit the muscle, they don’t have body enough to bring that blood, oxygenated, to the heart, and the heart succumbs, dies.”, and that such an increased demand for oxygen could be caused by “anxiety [or] altercation”.

The doctor was asked if, based upon his knowledge of the events which transpired in the parking lot and his examination of the deceased, he had an opinion as to whether there was a causal connection between the altercation and Mr. Carrothers’ subsequent death, and he stated that “there was a connection between the altercation * *

In its answer the defendant raised the exclusionary clause as an affirmative defense, asserting by implication that Mr. Carrothers’ death resulted directly or indirectly from “(b) injury intentionally inflicted by another person; * * * (d) committing an assault or felony # * or (f) disease or infirmity of mind or body * * In its memorandum in support of the November 24, 1970, motion to vacate the judgment for plaintiff the defendant raised provisions (b) and (f) of the exclusionary clause, apparently abandoning any defense based upon provision (d). The trial court specifically found that:

“[t]he rider dated May 21, 1956, entitled ‘Accidental Means Death Benefit as Limited and Defined Herein’ does not affirmatively provide a benefit for the assured decedent’s death and specifically excludes such death by virtue of proviso (f).”

On appeal the defendant argues that there is ample evidence in the record to support the trial court’s finding and hence it should not be disturbed by this court. The defendant’s evidence consisted primarily of the testimony of Dr. James Cassidy, who testified as an expert witness. In response to a hypothetical question which included a history of the events in the parking lot and the findings of the coroner’s pathologist, Dr. Cassidy stated it to be his opinion that Mr. Carrothers died as a result of “the recent myocardial'infarction” and that the infarction had occurred some 18 to 24 hours prior to death, or well before the incident in the parking lot. The latter opinion was based upon Dr. Cassidy’s belief that the infarction would not have been visible to the naked eye, and hence could not have been seen by Dr. Tapin, the pathologist, until 18 to 24 hours after it had occurred. Dr. Cassidy also testified that an acute myocardial infarction is nearly always fatal. On cross-examination Dr. Cassidy adhered to his opinion that the infarction which caused Mr. Carrothers’ death occurred prior to the altercation, but did state that the altercation probably would have increased the rate of Mr. Carrothers’ heart beat and hence his heart’s need for oxygenated blood.

We are mindful of the standard to be followed by this court in reviewing the findings of the trial court. (See Brown o. Zimmerman, 18 Ill.2d 94; Mortell v. Beckman, 16 Ill.2d 209.) However, after considering the record it is our conclusion that the findings, and consequently the judgment entered upon them, are. against the manifest weight of the evidence. The court found that:

“the insured decedent Fred J. Carrothers met his death from acute myocardial infarction brought about by stenosing arteriosclerosis. This infarction occurred some time prior to the altercation during which the insured decedent was knifed, and the decedent thereafter met his death by natural causes.”

This finding is apparently based upon the testimony of Dr. Cassidy that in order for the infarct to have been visible to the pathologist it must have occurred 18 to 24 hours prior to death. The inference which arises from this testimony is that at the time of the incident in the parking lot Mr. Carrothers had already suffered the acute myocardial infarction. His death within a short period of time was inevitable, and it is pure coincidence that it occurred 50 minutes after the altercation. In our opinion, the totality of the evidence does not support this conclusion. It was undisputed that Mr. Carrothers experienced no pain or distress prior to the altercation. He went to work that morning and later drove his car to the shopping center. Dr. Tapin testified that in his medical opinion there was a connection between the altercation and Mr. Carrothers’ death. He further testified that a person in Mr. Carrothers’ condition could live “for years” if not placed under stress. Even Dr. Cassidy admitted that there was no way that he could tell whether or not the infarction resulted from the altercation. We believe, therefore, that the manifest weight of the evidence supports the plaintiff’s thory that Mr. Carrothers died as the proximate result of the fight in the parking lot, and we so hold.

The court made no findings in its final judgment order as to the defendant’s contention that Mr. Carrothers’ death was excluded from coverage under provision (b) of the policy rider in that it resulted from injuries intentionally inflicted by another person. As the defendant raises this point in its brief, we will consider it briefly. Our courts have held on several occasions that if in the act preceding the injury which causes death, though intentional, something unforeseen or unexpected occurs which produces the injury, the death is accidentally caused. (Higgins v. Midland Casualty Co., 281 Ill. 431; White v. Penn Mutual Life Insurance Co., 272 Ill.App. 277; Wylie v. Union Casualty and Life Insurance Co., 15 Ill.App.2d 448.) In the present case there is no evidence that Ridge-way intended to inflict a fatal injury upon Mr. Carrothers or that he could have foreseen that the stress and activity engendered by the altercation would result in a fatal heart attack.

For the foregoing reasons the judgment is reversed and the cause remanded to the trial court with instructions to enter judgment for the plaintiff.

Reversed and remanded with directions.

ADESKO and DIERINGER, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Shepard, Defendant-Appellant.
    (No. 56150;
    First District (4th Division)
    March 14, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Louis Shepard was charged with the crime of robbery. He pleaded guilty to the charge and was sentenced to serve not less than two nor more than five years in the Illinois State Penitentiary. The sole issue raised on appeal is whether the trial court properly admonished defendant pursuant to Supreme Court Rule 402 to determine whether his plea of guilty was knowing and voluntary. The facts are as follows:

On March 8, 1971, defendant was indicted by the Cook County Grand Jury for the offense of robbery. On March 12, 1971, defendant was arraigned and entered a plea of not guilty. The Public Defender of Cook County was then appointed to represent defendant and on March 17, 1971, defendant after negotiations with the prosecutor withdrew his not guilty plea and entered a plea of guilty. The trial court admonished defendant about his plea of guilty and conducted a hearing wherein the court heard testimony stipulated by agreement between the prosecutor, defendant, and his counsel substantiating defendant’s guilt. The trial court entered judgment on the findings and after a hearing in aggravation and mitigation the court, pursuant to the negotiation, sentenced defendant to serve not less than two, nor more than five years in the Illinois State Penitentiary.

Defendant’s contention on appeal is that the trial court erred by not admonishing defendant exactly as provided for in the Supreme Court Rules, before accepting his guilty plea as knowingly and voluntarily made. Supreme Court Rule 402 in pertinent part provides:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court should not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) The minimum and maximum sentence prescribed by law * * *;
(3) that the defendant has tire right to plead not guilty * ® *, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.
(c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is factual basis for the plea.”
Ill. Rev. Stat. 1971, ch. 110A, par. 402.

Defendant concedes that the trial court in the case at bar admonished him as to the nature of the charge against him, as to the minimum and maximum penalty prescribed by law, and as to his right to a jury trial which he subsequently waived. Defendant also concedes that the trial court stated the existence of a negotiated plea agreement and the results of that agreement, and that the trial court determined that there was a factual basis for his plea. Defendant contends, however, that the court erred by not admonishing him that if he pleaded guilty there would not be a trial of any kind and that he would not be confronted with the witnesses against him and further that the court did not inquire whether, apart from the plea agreement, there was any force or threats used to obtain the plea.

Supreme Court Rule 402 does not require a strict literal adherence to every word contained in it, but rather requires only substantial compliance sufficient to safeguard the rights of the accused. (People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30; People v. Reed, 3 Ill.App.3d 293, 278 N.E.2d 524.) The record in the instant case clearly established that defendant was carefully informed of the nature of the charge against him and of the penalties prescribed for the charge. He was informed that by pleading guilty he was waiving his right to a trial by jury and his understanding was manifested by his answers to questioning by the trial court. The trial court discussed with defendant in detail the negotiations involved in his plea and determined that no promises other than the plea agreement were used to obtain the plea. The trial court found that there was a factual basis for the plea. Our examination of the record in the instant case in no way indicates, nor does defendant, who had previously been convicted of felonies and thus was not a stranger to the criminal justice system, even contend that his guilty plea was not understanding^ and voluntarily made.

We find that the trial court in the instant case substantially complied with the requirements of Supreme Court Rule 402 before accepting defendant’s guilty plea as knowingly and voluntarily made. The judgment of the Circuit Court of Cook County will therefore be affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


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    Mary Thomas et al., Plaintiffs-Appellants, v. Robert Le Burkian, Defendant-Appellee.
    (No. 56174;
    First District (4th Division)
    March 14, 1973.
    Dowd, Dowd and Dowd, of Chicago, (Joseph V. Dowd and Philip J. McGuire, of counsel,) for appellants.
    Royce Glenn Rowe, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

Plaintiffs, Mary Thomas and her daughter, Carol Thomas, brought this action to recover damages for injuries suffered when an automobile driven by Mary Thomas collided with a car driven by defendant, Robert Le Burkian, at the intersection of Center Street and Ashland Avenue in Des Plaines. The jury returned a verdict in favor of the defendant, and the plaintiffs appeal from the judgment entered thereon.

On July 20, 1965, Mary Thomas and her daughter were driving south on Center Street. The defendant was driving west on Ashland. Westbound traffic on Ashland is controlled by a “yield” sign. The front end of defendant’s car came in contact with the left-rear quarter panel of plaintiff’s car.

The defendant, Robert Le Burkian, was called as a witness by the plaintiffs under Section 60 of the Civil Practice Act, ch. 110, Ill. Rev. Stat. 1971, par. 60. He was eighteen years old at the time of the collision and was driving his father’s car with Jeffrey Elkins as a passenger. The defendant testified that the highest speed his automobile attained in the block before the accident was 25 m.p.h. He stated that he first applied his brakes when he was about 28 to 30 feet from the intersection. The second time he applied his brakes he stopped east of the center line of Center Street. He testified that at the time of the impact, his automobile was stopped.

The defendant further stated that he first saw the plaintiffs’ car when he was about 28 to 30 feet from the intersection, and the Thomas’ car was 500 to 600 feet from the intersection. It was daylight and the visibility was good.

Plaintiff, Mary Thomas, testified that on the evening in question, she had been to the train station to pick up her daughter. Both Ashland and Center are small, narrow, residential streets. Plaintiff stated that as she drove south on Center towards Ashland, her car was moving at a speed of about 15 to 20 m.p.h. She first saw the defendant’s car when it was two to three car lengths away. At that time, her front wheels were two to four feet into Ashland. Plaintiff testified that she stepped on the gas to get out of the way and that the impact took place almost immediately.

Plaintiff Carol Thomas stated that she was a passenger in the automobile driven by her mother. She estimated that their car was traveling at about 20 m.p.h. as it proceeded south on Center. She stated that she first saw the defendant’s car when it was about two car lengths away. Her mother’s car was in the intersection. She said, “Mother,” and her mother answered, “Yes, I know.” Then defendant’s car hit them. She testified that defendant’s car was moving at the moment of impact. After the impact, the car in which she was riding hit a telephone pole and rolled over on its side.

Glenna Carroll, called as a witness on behalf of the plaintiffs, testified that she was standing on the southeast corner of tire intersection of Center and Ashland when she observed the collision. She stated that defendant’s car was moving at the time of the impact.

Jeffrey Elkins, called as a witness on behalf of the plaintiffs, testified that he was a passenger in the defendant’s car at the time of the collision. He stated at the time of impact, the car in which he was riding, was travelling at a speed of 10 to 15 m.p.h. On re-direct, he said that everything happened so fast that if the car had been stopped, he would not have known.

The defendant, Robert Le Burkian, was called as a witness on his own behalf. He testified that his view was unobstructed as he approached Center. He was travelling at about 25 m.p.h. He applied the brakes twice, the first time to slow the car down, and the second time, hard. The car did not skid or slide and there was no screeching of brakes. The defendant testified further that the second application of the brakes stopped the car before impact. On cross-examination, the defendant stated that he was travelling at about 15 m.p.h. when he first applied the brakes. The second time he hit the brakes he was travelling at about two to five miles per hour.

On appeal, plaintiffs contend that the verdict and judgment were against the manifest weight of the evidence and that certain errors were made at trial which require reversal. We are mindful of the oft-stated rule that the Appellate Court will not substitute its judgment for that of the trier of fact unless the findings are clearly against the manifest weight of the evidence, and that it is not enough that the evidence might have supported some other conclusion.

Upon appeal, however, we are required to review cases not only as to the law, but also as to the facts. It is our duty to review the evidence, and to reverse the judgment of the trial court whenever we find such judgment to be clearly against the manifest weight of the evidence. Chapman v. Huttenlocher, 125 Ill.App.2d 39, 47, 259 N.E.2d 836, 840. In Chapman> the court stated that manifest means “clearly evident, clear, plain, or undisputable.”

We have carefully reviewed the record and we have concluded that the verdict and judgment rendered are contrary to the manifest weight of the evidence.

It is undisputed that there was a “yield” sign controlling defendant’s entry into the intersection. The jury was property instructed that a driver involved in a collision at an intersection after driving past a “yield” sign is prima facie deemed to have failed to yield the right of way. (See ch. 95%, Ill. Rev. Stat. 1971, par. 11 — 904(d).) Plaintiffs were thus entitled to the presumption that defendant failed to yield the right of way until defendant produced evidence sufficient to contradict and overcome that presumption.

The defendant’s own testimony was incredible. He stated that when he first appplied his brakes, he was about 28 to 30 feet from the intersection, and the plaintiffs’ car was about 500 to 600 feet from the intersection. If this were true, it is inconceivable that the two automobiles would have collided if he had yielded the right of way.

The defendant further testified that his car was stopped at the time the cars collided. The overwhelming evidence in the record indicates the opposite. It was undisputed that the collision resulted in damage to the left-rear quarter panel of the Thomas automobile. Moreover, Glenna Carroll, a disinterested bystander, and Jeffrey Elkins, defendant’s passenger, both supported the plaintiffs’ testimony that defendant’s car was moving at the moment of impact.

Gary v. Rogers, 104 Ill.App.2d 154, 243 N.E.2d 665, cited by the defendant, is distinguishable on the facts from the case at bar. In Gary, the court emphasized that there were no independent witnesses to the occurrence, and that the position of the two cars at impact was consistent with a finding of negligence by either party.

Plaintiffs also complain about prejudicial trial errors, but as this case must be retried, we do not think it necesssary to discuss them at this time.

For the reasons stated, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ADESKO and DIERINGER, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Carl M. Pullum, Defendant-Appellant.
    (No. 56203;
    First District (4th Division)
    March 14, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Carl M. Pullum, was indicted on charges of armed robbery and possession of marijuana. After a trial by jury, he was convicted on both charges and sentenced to the penitentiary for seven to fifteen years on the armed robbery charge and two to five years for possession of marijuana.

On appeal, defendant contends that (1) the conviction based on the unconstitutional marijuana statute should be reversed; (2) since the armed robbery charge was tried together with the marijuana charge, the armed robbery conviction should also be reversed; (3) statements made by the defendant were erroneously admitted into evidence, and (4) the improper closing argument of the prosecutor deprived defendant of a fair trial.

The evidence on behalf of the State shows that on September 4, 1970, at about 2:00 P.M., the defendant came to the door of Lucy Pendleton’s apartment. Defendant was holding a gun. He directed Mrs. Pendleton to “shut up and back up or I’ll blow your brains out.” Defendant then entered the living room where Melinda Pendleton, Lucy Pendleton’s sister-in-law, was sitting. He took Lucy and Melinda Pendleton into the bedroom and tied them up. Then he took some money and the keys to a white Cadillac belonging to Melinda Pendleton. At about this time, Willie Pendleton, Lucy Pendleton’s husband, entered the back door. The defendant pointed a gun at him and led him into the bedroom. He had all three victims go into a closet. When the defendant left the apartment, Melinda and Willie Pendleton went to the window and saw Melinda Pendleton’s car pulling away.

At approximately 2:00 A.M. on September 20, 1970, Chicago Police Officers Stimage and Green saw a 1970 Cadillac go through a red light. They stopped the car. Officer Stimage asked the defendant, who was driving the car, to see his license. As the defendant began looking through a pouch he was carrying, Officer Stimage asked him whose car he was driving. The defendant replied that it was his grandmother’s car, but that he did not have the papers to prove it. Officer Green made a license check on the car via radio and was informed that the car was stolen. Officer Stimage then placed the defendant under arrest and searched’ him. The officers found five packages of marijuana in the defendant’s pouch.

Later that morning, a line-up was held at the Damen Avenue Police Station. Melinda Pendleton identified the defendant from a line-up of seven or eight men as the man who had robbed her.

The defendant, age 22, testified on his own behalf. He stated that on September 4, 1970, he was in Harrisburg, Pennsylvania, looking for a job. He said that one Edward Radcliff drove him to Pennsylvania and back to Chicago. The defendant testified that Radcliff was in Pennsylvania at the time of the trial. The defendant stated that on the day of his arrest, he borrowed the 1970 Cadillac from a man named Leslie at his girlfriend’s house. He said he borrowed the car to go to his grandmother’s house. His father was ill and his grandmother was going to tell the defendant how to contact him. The defendant admitted telling the police that the auto belonged to his grandmother.

Prior to trial, defense counsel told the court that he had advised the defendant to seek a continuance so that counsel would have more time to secure certain witnesses in order to prepare an alibi defense, but that the defendant was insistent in his demand to be tried immediately.

The State agrees that the conviction based on a violation of the Narcotic Drug Act, ch. 38, Ill. Rev. Stat. 1969, par. 22 — 3, should be reversed. Subsequent to defendant’s conviction, the Illinois Supreme Court held that the classification of marijuana under the Narcotic Drug Act was arbitrary and deprived the accused of the equal protection of the law. People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407; People v. Hudson, 50 Ill.2d 1, 276 N.E.2d 345; cert. den. 405 U.S. 965. The marijuana conviction is therefore reversed.

Defendant next contends that it was error to try the defendant on both the marijuana and robbery charges at the same time. He argues that denial of his motion to sever the marijuana charge deprived him of a fair and impartial trial on the robbery charge. We are not in accord.

Section 111 — 4(a) of the Code of Criminal Procedure, ch. 38, Ill. Rev. Stat. 1969, par. 111 — 4(a), provides:

“Joinder of Offenses and Defendants, (a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.”

In the case at bar, defendant’s possession of marijuana was discovered at the time he was stopped in the stolen vehicle. Thus, the two offenses were “part of the same comprehensive transaction.”

Even if the joinder of the two offenses for trial had been error, however, it would have been harmless error. As stated in People v. Armstrong, 22 Ill.2d 420, 424, 176 N.E.2d 755, 757, “It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error.” (See also People v. Helm, 40 Ill.2d 39, 47, 237 N.E.2d 433, 437.) In the instant case, the evidence presented against the defendant on the armed robbery charge was so overwhelming that any error in the trial court’s refusal to sever the marijuana charge for trial cannot be regarded as so prejudicial as to require reversal.

People v. Wylie, 2 Ill.App.3d 720, 277 N.E.2d 346 and People v. Fleming, 121 Ill.App.2d 97, 257 N.E.2d 271, both cited by the defendant, are inapplicable on the facts to the case at bar. In Wylie, the court reversed a conviction for sale of narcotics because it was tried with a charge of possession of marijuana. The court in Fleming held that it was error to try a charge of auto theft together with a charge arising from the resale of the same automobile some eight months after the theft of the car.

Defendant next complains that certain statements made by him to the arresting officers were erroneously admitted into evidence in violation of his rights under Miranda v. Arizona, 384 U.S. 436. We do not agree. Defendant’s statement that the car he was driving belonged to his grandmother was made prior to his arrest, and before he was in custody. Miranda warnings are not necessary where, as here, the police are conducting general on-the-scene questioning as to the facts surrounding a crime. (People v. Parks, 48 Ill.2d 232, 269 N.E.2d 484; cert. den. 404 U.S. 1020.) Nor was it necessary to hold a hearing on the voluntariness of tire statements complained of under the circumstances presented here.

The defendant also argues that these statements should not have been admitted because in response to a discovery motion made by defendant, the State’s answer included the following assertion: “Statements: None.” The record reveals that the only reference to oral statements contained in the motion for discovery was point four which states: “4. Production and copy of any oral statements that the defendant may have made that may have been reduced to writing.” Hiere were no oral statements made by the defendant that had been reduced to writing.

Finally, defendant claims that the closing argument by the prosecutor deprived him of a fair trial. He argues that the prosecutor should not have been allowed to refer to the failure of the defense to produce certain witnesses. We find no merit to this contention. Where, as here, the defendant injects into the case the names of people who presumably would support his theory of the case, the prosecutor may comment on the failure of the defense to produce those people as witnesses. People v. Garnett, 113 Ill.App.2d 159, 167, 251 N.E.2d 761, 764-5; People v. Williams, 40 Ill.2d 522, 528-30, 240 N.E.2d 645, 649-50; cert. den. 393 U.S. 1123.

For the foregoing reasons, the judgment of conviction on the marijuana charge is reversed and the judgment of conviction on the armed robbery charge is affirmed.

Affirmed in part and reversed in part.

ADESKO and DIERINGER, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Boucher, Defendant-Appellant.
    (No. 56253;
    First District (4th Division)
    March 14, 1973.
    David C. Thomas, of Mandel Clinic — Legal Aid Bureau, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and John C. O’Rourke, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

This is an appeal from an order revoking defendant’s probation for petty theft and sentencing him to serve one year in the Cook County JaU. On appeal, the defendant argues that his rights under the IUinois and United States Constitutions were violated when his probation was revoked for faUure to make restitution payments when the only reason for said failure was his indigency.

The defendant was originally charged by indictment with grand theft in violation of section 16 — 1 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1.) On April 26, 1971, the defendant requested a conference with the court. Thereafter the defendant entered a negotiated plea of guilty to a reduced charge of petty theft and was placed on three years probation with the condition that he make monthly payments of $200, totalling $2,800, to repay the money he had stolen. The defendant, who at this time was unemployed, was speciaUy advised that failure to make payments would be a violation of his probation. On August 9, 1971, a hearing was held to show cause why the defendant’s probation should not be revoked. The probation officer testified that the defendant had made only one payment of $150 since being placed on probation. The defendant testified that he had been unable to secure employment and was without funds. The defendant’s probation was revoked and he was sentenced to serve one year in the Cook County Jail.

The defendant argues that he is being imprisoned for “failure to pay a fine” in violation of his rights under both the Illinois and United States Constitutions. To support his argument tire defendant cites a line of cases, holding that an indigent person may not be imprisoned for failure to pay a fine when his indigency is the only reason for nonpayment. In the case at bar, the defendant is not imprisoned for failure to pay a fine. The defendant, after a conference with the court, entered a negotiated plea of guilty to reduced charges of petty theft and voluntarily accepted a period of probation with a condition being that he make restitution of the money he had taken. Probation is not a sentence, but a suspension of a sentence. (People v. Gentry, 5 Ill.App.3d 1088, 284 N.E.2d 428.) The defendant was unemployed at the time he entered his plea and nonetheless voluntarily accepted probation with the condition of restitution, rather than go to jail. He knew the terms of his probation when he entered his plea of guilty and was specially advised that his failure to make restitution would result in a revocation of his probation. When the defendant failed to make the required restitution, his probation was properly revoked. (People v. Dawes, 52 Ill.2d 121, 284 N.E.2d 629; People v. Mylander, 3 Ill.App.3d 252, 278 N.E.2d 492.) He was then sentenced for the first time on the original crime for which he was convicted, not as a punishment for any acts occurring after his conviction. (People v. Ford, 4 Ill.App.3d 291, 280 N.E.2d 728.) Unlike the cases cited by the defendant, in which the defendant was incarcerated as a penalty until the fine was paid at a set rate per day, here the defendant is incarcerated for the crime of petty theft for a set term, not for acts occurring after his conviction. The defendant’s incarceration for the crime of petty theft is not incarceration for the failure to pay money. None of the defendant’s constitutional rights have been violated.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


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      In re Application of Harry L. Klock et al., to Register Title to Real Estate. In re Petition of Vernal Echols for Transfer to Title and Removal of a Memorial—(Vernal Echols, Petitioner-Appellant.)
    (No. 56668;
    First District (4th Division)
    March 14, 1973.

      John Elson, of Chicago, for appellant.
    Stradford, Lafontant, Fisher & Cousins, of Chicago, (Herbert H. Fisher, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

Vernal Echols, the petitioner, brought this action in the Circuit Court of Cook County seeking an order directing the Registrar of Titles to issue a certificate of title to certain real estate conveyed to her by her former husband and to remove from the certificate a memorial of a judgment in favor of the respondent, Independence Bank of Chicago.

The facts which give rise to this controversy are undisputed. On September 29, 1966, the Circuit Court of Cook County entered a decree of divorce providing in part that in consideration of $2,000, Valentine Echols, the petitioner’s former husband, should execute a quit-claim deed conveying to the petitioner his interest in the subject real estate. At that time title to the property was registered in the names of Valentine Echols and Vernal Echols as joint tenants pursuant to the provisions of the Torrens Act. (Ill. Rev. Stat. 1971, ch. 30, par. 45 et seq.) In conformity to the terms of the divorce decree, the petitioner paid $2,000 to Valentine Echols, and he in turn executed and delivered a quit-claim deed, dated September 30, 1966, conveying his interest in the property to her. This deed was duly recorded with the Cook County Recorder of Deeds on October 18, 1966, but was not registered with the Registrar of Titles until September 22, 1971.

On May 19, 1969, the Independence Bank of Chicago obtained a judgment against Valentine Echols in the amount of $1,058.67. On January 21, 1971, the bank registered a memorial of this judgment in the office of the Registrar of Titles, creating a lien upon the subject property, which the certificate of title still showed to be owned jointly by Valentine Echols and Vernal Echols.

Upon learning of the hen, Vernal Echols commenced the present action. After hearing evidence, the trial court on August 4, 1971, entered an order directing the Registrar of Titles to issue a certificate of title to Vernal Echols, but denied her further petition for removal of the memorial of judgment. On September 3, 1971, she moved for a rehearing based upon newly discovered evidence. This motion was denied, and she appealed from that part of the judgment denying her petition for removal of the memorial of judgment and, alternatively, from the denial of her motion for a rehearing. On appeal she contends first that the court erred in refusing to direct the Registrar of Titles to remove the memorial from her certificate of title and second that the court abused its discretion in denying her timely petition for rehearing. In view of our decision, it will be necessary to consider only the first contention.

A conveyance of property registered under the Torrens Act is not complete until the deed or other instrument is registered with the Registrar of Titles. Prior to registration the deed functions as a contract between the parties and as authority to the registrar to register the transaction. (Ill. Rev. Stat. 1971, ch. 30, par. 98.) The registration itself completes the conveyance of legal title; however, a deed to Torrens property takes effect upon delivery to pass equitable title to the grantee. Kostelny v. Peterson, 19 Ill.2d 480; Klouda v. Pechousek, 414 Ill. 75; Naiburg v. Hendriksen, 370 Ill. 502.

In the present case Valentine Echols executed a quit-claim deed to the subject property and delivered it to Vernal Echols, on September 30, 1966. This severed the joint tenancy, and Valentine Echols had no further interest in the property. The deed was absolute in form and was recorded in the Cook County Recorder’s office by Vernal Echols, who was in sole possession of the property. All of these events served as notice to the world that Valentine Echols no longer had an interest in the property. This notice is not diminished by the fact that the certificate of title continued to reflect joint ownership until registration was completed on September 22, 1971. See Naiburg v. Hendriksen, 370 Ill. 502, 507.

With respect to the lien of an ordinary judgment against real estate in which the judgment debtor may have an interest, it is well established that such a lien is general and extends only to the debtor’s interest in the property at the date of judgment. It is limited to the actual interest of the judgment debtor. (Hooper v. Haas, 332 Ill. 561; East St. Louis Lumber Co. v. Schnipper, 310 Ill. 150.) The Independence Bank obtained its judgment against Valentine Echols on May 19, 1969. As a judgment creditor the bank could assert no greater rights against the property than could Valentine Echols, the judgment debtor. Echols had no interest in the property, and clearly the bank could acquire none. Equity regards as done that which in good conscience ought to be done. Vernal Echols could have registered her deed immediately upon delivery in 1966 and had she done so there is no question that the Registrar of Titles would have been required to issue a certificate of title to her. Such a certificate obviously would not have been subject to the lien of the bank’s subsequent judgment against Valentine Echols. Under these circumstances the bank can hardly be said to have acquired an interest in the property merely because it registered its memorial while the naked legal title was still partially in Valentine Echols.

We conclude therefore that the trial court abused its discretion in refusing to direct the Registrar of Titles to remove the memorial of judgment obtained by the Independence Bank of Chicago from Vernal Echols’ certificate of title and we so hold. That portion of the decree denying the petition for removal of the memorial is reversed and the cause is remanded with instructions to enter a decree granting the petition of Vernal Echols and directing the Registrar of Titles to remove from the certificate of title memorial number 2539677.

Reversed and remanded with directions.

ADESKO and DIERINGER, JJ., concur.


author: Mr. PRESIDING JUSTICE BURMAN.

text:
    Milton Zale, Plaintiff-Appellant, v. Thomas Hess, Defendant-Appellee.
    (No. 57292;
    First District (4th Division)
    March 14, 1973.
    Albert Brooks Friedman, of Chicago, (Roger Gold, of counsel,) for appellant.
    Thomas Hess, pro se.

   Opinion by

Mr. PRESIDING JUSTICE BURMAN.


text:
    Roth-Adam Fuel Company et al., Plaintiffs-Appellees, v. The Pollution Control Board et al., Defendants-Appellants.
    (No. 57536;
    First District (4th Division)
    March 14, 1973.
    William J. Scott, Attorney General, of Chicago, (David C. Landgraf, Harvey M. Sheldon, and James I Rubin, Assistant Attorneys General, of counsel,) for appellants.
    Harry A. Young, Jr., Allen C. Engerman, and Robert J. Lifton, all of Chicago, for appellees.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

The Illinois Pollution Control Board and its members (hereinafter the “Board”) have taken this interlocutory appeal from an order for issuance of a temporary injunction entered by the Circuit Court of Cook County on motion of Roth-Adam Fuel Company and the other plaintiffs. The injunctional order restrained the Board from holding further hearings on, or adopting, or considering the adoption of a proposed rule which would ban the use of coal as a source of fuel for residential and commercial space heating purposes in the Chicago area. The trial court also denied the Board’s amended motion to dismiss the complaint. The facts as adduced from the pleadings and hearing are as follows:

The Illinois Pollution Control Board was holding hearings on a proposed regulation to eliminate the burning of coal as a source of fuel for residential and commercial space heating purposes. The proposed regulation, Rule 203(g) (1) (A), had been a matter of public knowledge and under consideration since December 1970. The Board held publig hearings at which plaintiffs did appear and testified. The effective date of the proposed ban on the burning of coal was to be May 30, 1975. Plaintiffs amended their complaint to provide for changes in the proposed regulation which were not known to plaintiffs at the time of filing the complaint.

Rule 203(g)(1)(A) had not been adopted by the Board. Plaintiffs introduced evidence that the Board standards would be more stringent than necessary to meet the federal air quality standards. Plaintiffs also introduced evidence that the proposed rule discriminated against residential and commercial space heating sources in the Chicago area. The rule was subject to change and had been changed many times previously.

Expert testimony established that industrial process sources were allowed to emit over three times the particulate matter which the rule would allow residential and space heating units to emit. Further testimony revealed that coal companies and users of coal for heating purposes would suffer substantial financial losses without compensation.

The Board filed a motion to dismiss the complaint which sets forth that plaintiffs have an adequate remedy at law under the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, pars. 264 and following) and that the matter is not now ripe and is prematurely brought to court. The Board also filed an amended motion to dismiss which stated in addition that the complaint failed to allege facts showing an actuality or threat of immediate irreparable harm and that the proposed regulation did not threaten to destroy plaintiffs’ business without compensation.

On appeal the Board contends that the Circuit Court of Cook County lacked jurisdiction to entertain this suit for injunction and that plaintiffs were not entitled to a preliminary injunction on the basis of the facts and evidence presented.

We find it necessary to determine whether the court had jurisdiction to entertain this suit for injunction. The Board has not adopted any regulation directed to the subject matter in question. Hearings have been held, but no person can predict the future course of action which the Board will take and whether or not it will, in fact, adopt the proposed regulation in any form. No action of any kind has been taken by the Board against plaintiffs. No compulsion of any kind has been exercised against them. No regulation has been adopted. Plaintiffs are not confronted with any regulation duly adopted by the Board. No loss has been suffered by any of the plaintiffs in any of their pertinent activities and no such loss is imminent. Even if the Board should adopt the proposed regulation, it would not be effective until May 30, 1975. Plaintiffs only problem is that the Board may some day adopt the regulation at issue in its present form. This alleged problem may never come about because the regulation is still subject to change and has been changed numerous times previously.

The situation in Gromer Supermarket v. Pollution Control Board, 6 Ill.App.3d 1036, 287 N.E.2d 1, is in point except for the fact that no hearing had been held. We follow the reasoning in the Gromer Supermarket case and find it determinative in the instant case where hearings had been held. No action by the Board has made the issue ripe for judicial determination. We do not know if the Board will act upon this subject matter or whether it will adopt any regulation or even an amended regulation with which plaintiffs may be in full accord. Under the circumstances of this kind, we hold that the controversy between these parties is not presently ripe for adjudication and therefore, the Circuit Court of Cook County lacked jurisdiction to entertain this suit for injunction.

We conclude that this suit was prematurely filed and that the injunctional order was improvidently issued. The injunctional order is reversed and the cause remanded to tire Circuit Court of Cook County with direction that it be dismissed without prejudice.

Order reversed and cause remanded with directions.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Saul R. Colbert, Defendant-Appellant.
    (No. 56091;
    First District (3rd Division)
    March 15, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Harold A. Cowen and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

George Cermak, the proprietor of a meat market in Summit, Illinois, was robbed and shot to death as he left his shop at 6:30 P.M. on November 16, 1968. A day later his wallet was found on the median strip of the Stevenson Expressway. Near the wallet were some cards and papers which had dropped out of it. Among these was a slip of paper which did not belong to Cermak. This paper was turned over to the Summit police. It bore the name of a Mary Chester, a docket number of the Criminal Court of Cook County and the amount of a bond. The police reasoned that this piéce of paper must have been commingled with those of Cermak by someone who had taken his wallet. Their investigation revealed that Mary Chester was in jail on a child abandonment charge and that she and four men had been arrested a month before by the Chicago Police Department as suspects in a burglary case. Three of the men, Allen Nathaniel, Frank McDonald and the defendant, Saul Colbert, were known to the Summit police. The police also learned that Colbert had been seen in the vicinity of the murder and that Mary Chester was his girl friend.

The police proceeded to check the whereabouts of the men and an order was issued to bring them in for questioning. Nathaniel was the first one taken into custody. On the same day, two officers saw Colbert on a bus. He was taken off, informed that he was wanted for questioning in reference to a homicide and handcuffed for precautionary reasons. Nathaniel admitted being present at the slaying and implicated Colbert. Colbert was then placed under arrest and charged with, the offense. He subsequently confessed and one of Cermak’s employees identified him as a participant in the crime.

Colbert, Nathaniel, McDonald and a fourth man named Fields were indicted for the murder. Colbert waived a jury and was tried by the court. Nathaniel testified against him. He was found guilty and sentenced to the penitentiary for 40 to 80 years. On appeal he contends that the trial court erred in denying his pretrial motions to quash his arrest and to suppress his confession.

An arrest by a police officer without a warrant is proper if the officer has reasonable grounds to believe that the person arrested has committed a criminal offense. (People v. Wright (1969), 42 Ill.2d 457, 248 N.E.2d 78; People v. Scott (1968), 100 Ill.App.2d 473, 241 N.E.2d 579.) The test is whether a reasonable and prudent man, having the knowledge which the officer had, would believe that a crime had been committed and that the person arrested was guilty of the offense. (People v. Bambulas (1969), 42 Ill.2d 412, 247 N.E.2d 873; People v. Carroll (1971), 133 Ill.App.2d 78, 272 N.E.2d 822.) The officer’s belief may be founded on hearsay evidence and on factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. People v. Denham (1968), 41 Ill.2d 1, 241 N.E.2d 415.

Probable cause for an arrest means something less than the evidence needed for a conviction. (People v. Peak (1963), 29 Ill.2d 343, 194 N.E.2d 322.) The question as to what information is sufficient to establish probable cause is dependent on the facts and circumstances of each particular case. (People v. McCrimmon (1967), 37 Ill.2d 40, 224 N.E.2d 822.) Cermak’s wallet was removed from his person. A paper found near the discarded wallet bore the name of Mary Chester. A relative of Cermak’s told the police that the paper was not his. It appeared highly probable that the paper had been placed in the wallet by an individual involved in the theft and murder. Since Mary Chester and Colbert were close, friends and they had been arrested together on suspicion of burglary a month earlier, it was reasonable to assume that Colbert was that individual. Citizens informed the police that they had seen Colbert in the area of the murder. Under these circumstances the police had strong reason to believe that he participated in Cerníales murder and their order that he be brought into the Summit station for questioning — and the fulfillment of that order — was not an unreasonable act. A factor to be considered in judging the reasonableness of police conduct in making an arrest is their responsibility to catch criminals and prevent crime. (People v. Asey (1967), 85 Ill.App.2d 210, 229 N.E.2d 368.) There was probable cause for Colbert’s arrest and the trial judge ruled correctly in denying his motion to quash.

Inasmuch as we have determined that the arrest was valid, it is unnecessary for us to consider Colbert’s contention that his confession should have been suppressed as the product of an illegal arrest. However, he also asserts that the confession was obtained through coercion. He testified that during his interrogation he was struck in the mouth by one officer and was threatened with a revolver and placed in fear of his life by another. He stated that an assistant State’s Attorney told him he was “going to burn.” Both the interrogating officers and the assistant State’s Attorney to whom Colbert gave his incriminating statement denied the charges of brutality and coercion; they testified that Colbert was neither threatened nor physically abused. The trial judge found his confession to be voluntary. The credibility and weight to be given the testimony of witnesses is a matter to be determined by the trial judge and his determination will not be set aside unless it is obviously erroneous. (People v. Noonan (1972), 5 Ill.App.3d 1109, 284 N.E.2d 446.) The judge did not err in concluding that Colbert’s confession was voluntarily made, and his motion to suppress was properly denied.

The judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Ocie Wilson, Petitioner-Appellant.
    (No. 56735;
    First District (3rd Division)
    March 15, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    No appearance for the People.
   PER CURIAM.