text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Major Peery, Defendant-Appellant.
    (No. 56970;
    First District (3rd Division)
    April 26, 1973.

      Charlotte Adelman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Robin K. Auld, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The defendant, Major Peery, was indicted for the murder of his wife (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1), and after a jury trial he was convicted and sentenced to the Illinois State Penitentiary for a term of 100 to 150 years. In this appeal the defendant alleges that three instances of reversible error occurred during the trial and also that the sentence he received was excessive. The most important issue raised by the defendant, because it is dispositive of this case, is whether the trial court erred in refusing to give the defendant’s offered jury instruction encompassing the lesser included offense of voluntary manslaughter.

We reverse and remand.

The relevant facts adduced at trial are as follows: The defendant and his wife, Lovell Peery, had been married for 18 years at the time of the alleged offense. During their marriage they had seven children, and an eighth, Henry Williams, Jr., was Mrs. Peery’s son born of a previous marriage. Sometime during February, 1971, the defendant and his wife separated and lived apart until the end of March.

On the evening of March 31, 1971, Lovell Peery was visiting her daughter and son-in-law, Gail and Timothy Jackson, at their home a short distance away from the Peery family home, where the defendant and one of his daughters still resided. In the kitchen of the Jackson home that evening were Mr. and Mrs. Jackson, Mrs. Peery and two of her daughters, Margaret and Tujuana Peery. Shortly after 7:00 P.M. or 8:00 P.M. Patricia Peery, a fourth daughter of the defendant and Lovell Peery, rang the doorbell at the Jackson apartment. Patricia had encountered her father, the defendant, while on her way to her sister’s home, and he had told her that he also was on his way to the Jackson’s to bring Margaret back to live with him.

Patricia further testified that she and her father proceeded together to the Jackson’s, and as she rang the doorbell, the defendant stood behind her and out of sight. When Gail opened the door, the defendant ran through the door and pushed his way to the kitchen. Patricia followed him as far as the living room and observed the ensuing events from there.

Timothy Jackson testified that he was in the kitchen when the defendant entered and observed the following events. Lovell Peery was standing, with her arms folded, in the corner near the kitchen sink. The defendant positioned himself against a wall a few feet away from her. After the defendant entered, he and Mrs. Peery began to argue about family matters. The exchange grew louder until Gail Jackson cautioned her mother to keep her voice down. Jackson testified that the defendant continued in a loud voice demanding to know why his wife was keeping the children from him. The defendant also accused his wife of staying out with other men, which she denied. Jackson further testified that suddenly, for no explainable reason, the defendant said, “Why are you going into the sink?”, and drew a pocket knife, crossed the room in three quick steps and began stabbing Mrs. Peery.

Gail Jackson testified that after entering the apartment the defendant proceeded to the kitchen and began arguing with her mother. The defendant accused his wife of keeping the children from him. He had arrived angry, but he calmed down during the conversation. He made no threats to Mrs. Peery during their conversation. Then, suddenly, he asked, “What are you going to tire sink for?” He then approached Mrs. Peery and began stabbing her with a knife he took from his pocket.

Patricia Peery testified that she observed the events as they occurred, and she recounted substantially the same story. Her father was speaking in a normal tone, and then he asked her mother why she was going to the sink. He then walked to the sink, grabbed her and started stabbing her.

The testimony of Margaret Peery was similar to that of the previous occurrence witnesses. She heard her father say something like, “Why are you going into the sink?” She added that the sink had contained, among other things, a knife.

At this point, as the defendant approached his wife, the witnesses realized what was happening and naturally became quite excited. The girls began screaming, “Daddy, Mama, stop; Daddy and Mother, stop.” Patricia Peery hit the defendant on the head with a large kitchen spoon; Gail Peery hit him with a kitchen chair. Timothy Jackson got the girls out of the apartment as the defendant continued to stab his victim.

Minutes afterwards, the defendant left the Jackson apartment and walked to his home. The police were called, and he was arrested. He was taken to a nearby hospital where he received five stitches to close a cut on his head.

Dr. Jerry Kearns testified that he was the pathologist who examined the body of Lovell Peery. He found two stab wounds, one to the chest and one to the neck, which were the cause of death.

The defense caUed as its only witness the defendant. He testified that he went to the Jackson home on the evening of March 31, 1971, to teU his wife that he wanted the children to five with him. He further testified that after their conversation, he turned to leave when his wife called his name and said, “Anyway, I made up my mind to kill you.” She reached into the sink, and he asked, “What are you reaching into the sink for?” She then raised her arm over her head and struck him on the head with a heavy object. The blow blinded him. The next thing he could remember was that he was outside walking home. He was bleeding from the top of his head. When he got home, he called the police and went outside when they arrived and submitted peacefully to arrest.

During the conference on jury instructions, the defendant submitted an instruction defining the lesser included offense of voluntary manslaughter. The State objected to the instruction, and the trial judge rejected the proposed instruction “[b]ased upon the facts heard.” In this appeal the defendant’s contention is that it was reversible error to refuse the voluntary manslaughter instruction. In support of the decision of the trial court, the State argues that there was no evidence tending to prove the lesser offense.

“It is the settled rule in homicide cases that if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining manslaughter should be given. (People v. DeRosa, 378 Ill. 557; People v. Pursley, 302 id. 62; People v. Bacon, 293 id. 210). The defendant was entitled to the benefit of any defense shown by the evidence, even if inconsistent with his own testimony. People v. Scalisi, 324 Ill. 131.
The question, then, is whether or not there is any evidence which, if believed by the jury, would reduce the offense from murder to manslaughter. If there is such evidence, then it was error on the part of the court to refuse the offered instructions relating to manslaughter. People v. Papas (1942), 381 Ill. 90, at 94, 95, 44 N.E.2d 896. See also, People v. Bembroy (1972), 4 Ill.App.3d 522, 281 N.E.2d 389.”

In the instant case, the State’s witnesses testified that there had been an argument between Mr. and Mrs. Peery before the stabbing. Mrs. Peery had been cautioned to keep her voice down. Gail Peery, a State’s witness, testified that the defendant made no threats to his wife during the argument. All of the State’s occurrence witnesses testified that immediately before the stabbing the defendant suddenly asked Mrs. Peery why she was going into or near the sink. The defendant testified that although he had no memory of stabbing his wife, he did remember that she threatened to kill him, and then reached into the sink and struck him on the head with a heavy object. Had the jury been properly instructed, this testimony might have been sufficient, in their minds, to reduce the homicide to manslaughter.

Even though the evidence was conflicting, the defendant’s trial testimony, if believed by the jury, was sufficient to create an issue of fact as to whether he acted under a sudden and intense passion resulting from a serious provocation as defined in the statute. Ill. Rev. Stat. 1969, ch. 38, par. 9— 2(a). People v. Boothe (1972), 7 Ill.App.3d 401, 287 N.E.2d 289.

As was pointed out by the court in Papas (1942), 381 Ill. 90, 44 N.E.2d 896, in a jury trial it is the province of the jury, and not the judge, to determine the guilt or innocence of the accused and also to determine whether the accused is guilty of murder or the lesser crime of manslaughter, “if there is any evidence which tends to prove the lesser rather than the greater crime.” 381 Ill.90 at 96.

The province of the jury to determine the weight to be given the testimony of the various witnesses was definitely invaded by the refusal of the court to give the voluntary manslaughter instruction offered by the defendant. The defendant was entiled to have submitted to the jury any defense which his testimony, or any other evidence, tended to prove.

We, therefore, reverse and remand for a new trial for failure to properly instruct the jury.

Judgment reversed and remanded.

DEMPSEY, P. J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SULLIVAN

license: Public Domain

text:
    Victor Sarytchoff, Plaintiff-Appellee, v. The License Appeal Commission of the City of Chicago et al., Defendants-Appellants.
    (No. 55473;
    First District (5th Division)
    April 27, 1973.

      Rehearing denied June 1,1973.

      Richard L. Curry, Corporation Counsel, of Chicago, for appellants.
    Joel L. Greenblatt, of Chicago, for appellee.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by defendants from the entry of a judgment reversing an order of the License Appeal Commission which had sustained the Local Liquor Control Commissioner’s revocation of the liquor license of the plaintiff.

Although no brief has been filed by plaintiff, we will examine the record to determine whether the defendants are entitled to the relief requested. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264, 254 N.E.2d 814.

A question was raised in the circuit court concerning whether the plaintiff (licensee) had his “day in court” in the hearing before the Local Liquor Control Commissioner. The record shows that on March 28, 1969, the licensee was served with notice that a hearing would be held on April 2, 1969, on the question of whether his retailer’s license issued by the Liquor Control Commissioner should be revoked. The notice stated the charges were: (1) the licensee operated a disorderly house in that he failed to notify the police department of an unconscious man on tire licensed premises contrary to ordinances, statutes and rules of the Illinois Liquor Control Commission and (2) the licensee sold, through an agent, alcoholic beverages to an intoxicated person also contrary to ordinances, statutes and Commission rules. The notice informed the licensee of his right to be represented by counsel and that he could produce witnesses and introduce testimony on his own behalf.

The plaintiff appeared at the hearing on April 2, 1969, and announced that he was not ready to proceed and that his attorney was out of town. Two witnesses called by the defendants were present and, after informing plaintiff that the witnesses could be brought back, the Commissioner proceeded to take their testimony following which he informed the plaintiff that he would hold the witnesses until his attorney could appear. The attorney could not be reached and the matter was then continued to April 21, 1969, and plaintiff was informed that he should tell his lawyer to notify the City if he wanted the witnesses back on that date for additional interrogation.

On April 21, 1969, plaintiffs attorney requested a continuance. Thereafter, hearings were set on four different dates with testimony completed on June 23, 1969, with additional proceedings held on July 15 and August 6, 1969.

The record discloses that no request was made at any time by plaintiff or his attorney that the two witnesses who testified on April 2, 1969, be brought back. It is assumed that plaintiff was either satisfied with their testimony or that he was unable to impeach them or otherwise attack them credibility. The record reveals no other limitation on any right of the plaintiff to interrogate or present witnesses. The license was then revoked and the revocation was affirmed by the License Appeal Commission.

We conclude that the Local Commissioner did not abuse his discretion in taking the testimony of the two witnesses on April 2, 1969, and that the plaintiff was accorded a reasonable opportunity to make a complete presentation of his case in the hearing before the Local Liquor Control Commissioner.

We now turn to the question of whether the circuit court may have properly reversed for other reasons.

The Commissioner found that the charges against plaintiff as set forth above were supported by substantial evidence in the light of the whole record.

Defendants have not pointed out, nor does the record disclose, the ordinances, statutes or Commission rules that the licensee violated by not notifying the police department of an unconscious person in the licensed premises and, accordingly, we hold that the record does not sustain this finding and we turn again to the record to consider the second finding in which the Local Commissioner found that plaintiff had made an unlawful sale to an intoxicated person. The statute involved is sec. 12 of the Liquor Control Act (Ill. Rev. Stat. 1987, ch. 43, par. 131), which provides in part as follows:

“No licensee or any * * * agent or employee of such licensee shall sell, give or deliver alcoholic liquor * * * to any intoxicated person or to any person known to him to be a habitual drunkard * *

The record discloses substantial evidence to support the finding that alcoholic liquor was served to an intoxicated person. Witnesses Jane Fehrlan and Helen Lily testified that after they and Allen Young had two beers the bartender (apparently by way of a challenge) told Allen Young that he couldn’t take care of 13 drinks and be able to walk out. The bartender did not charge for these drinks which were a mixture of whiskey and schnapps served in water glasses about two inches tall. After Young finished the 13 drinks, the bartender, over the objections of the two witnesses, insisted that Young drink one more, which he did, and immediately fell off the bar stool, landing on the floor unconscious. He was carried with the help of three others to the apartment of witness Fehrlan where he was placed, still unconscious, on a couch at about 1:30 or 2:00 A.M. He died in her apartment later that day. Police officer Shannon said that the bartender, who did not testify, informed him that Allen Young had 10, 12 or 14 chinks. The plaintiff stated that the bartender informed the police officer that Allen Young had several drinks, but did not indicate any number. Plaintiff’s witness, Danny Young, testified that he was in the premises from 11:00 P.M. and was seated next to Allen Young who was drinking 7 Up and 7 Crown. He observed nothing unusual about Allen Young, and when he left about 2:45 A.M. Allen Young was still there and was not under the influence of intoxicating liquor.

In cases of this type, a circuit judge is limited to matters of record. Weinstein v. Daley, 85 Ill.App.2d 470, 229 N.E.2d 357 and, as stated in Nechi v. Daley, 40 Ill.App.2d 326, 188 N.E.2d 243, a circuit court may consider only two questions, (1) whether the Local Liquor Control Commissioner had acted arbitrarily or in clear abuse of his discretion and (2) whether the order entered by the Local Commissioner was contrary to the manifest weight of the evidence.

We and the circuit court are required to accept the judgment of the Local Commissioner as to the credibility of the witnesses. Only he, as the trier of the facts, is authorized to assess credibility, weigh the evidence, and determine which witnesses are worthy of belief. (Crepps v. Industrial Com., 402 Ill. 606, 615, 616, 85 N.E.2d 5; Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264, 254 N.E.2d 814.) See also Nechi v. Daley, 40 Ill.App.2d 326, 188 N.E.2d 243, where the court said:

“Under the Administrative Review Act the findings and conclusions of the administrative agency on questions of facts are to be held prima facie true and correct (Ill. Rev. Stats. 1961, ch. 110, sec. 274). The law in Illinois is well settled that the scope of judicial review is limited to a consideration of the record to determine if the findings and orders of the administrative agency are against the manifest weight of the evidence, and it has been consistently held that the courts are not authorized to reweigh the evidence or to make an independent determination of the facts. [Citations omitted.]”

From our examination of the record we conclude that there was no abuse of discretion in the finding of the Local Commissioner nor was the order entered by him against the manifest weight of the evidence.

The judgment of the circuit court is therefore reversed and remanded with directions to affirm the order of the License Appeal Commission.

Reversed and remanded with directions.

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


author: Mr. JUSTICE LORENZ

text:
    Hawthorn Mellody Farms Dairy, Inc., Plaintiff and Counterdefendant-Appellee, v. Ben Rosenberg, Defendant and Counterplaintiff-Appellant.
    (No. 55519;
    First District (5th Division)
    April 27, 1973.

      Edward R. Vrdolyak and Alan Conrad Mendelson, both of Chicago, for appellant.
    John J. Coffey, of Chicago, (Rothschild, Barry & Myers, of counsel,) for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Although Hawthorn Mellody Farms Dairy, Inc. originally sued Ben Rosenberg, an independent milk vendor, the instant case, by stipulation of the parties, proceeded only on two counts of Rosenberg’s counterclaim against Hawthorn. Judgment was entered in favor of Hawthorn at the close of Rosenberg’s evidence.

Count I thereof alleged breach of oral contract to trade milk routes. Count III alleged breach of a written union contract to provide for route riders. Although the union contract was not exhibited with the counterclaim, it quoted the applicable provision:

“Processor to furnish route rider for all vendor routes purchased or sold after May 1, 1959, and also for prior vendors who request route rider service. Processor to pay for same, or be subject to penalty under Article 20; Paragraph 2.”

Hawthorn denied all the allegations of Count I and admitted the existence of the union contract but denied liability regarding Count III.

On appeal Rosenberg contends (1) that the standard a trial court sitting without a jury must apply when ruling on a motion for judgment at the close of plaintiff’s evidence is whether plaintiff established a prima facie case, (2) that he established a prima facie case for breach of written contract under Count III of the counterclaim, and (3) that he established a prima facie case for breach of oral contract under Count I of the counterclaim.

The evidence is summarized.

Anthony W. Christiano, President of the Milk Drivers’ Union testified that Rosenberg was a member of his union in good standing. He defined “route rider” as an employee of the processor who relieves another driver one day each week. He further testified that the union contract contained a grievance procedure available to independent vendors but was uncertain whether Rosenberg had utilized this procedure regarding Hawthorn’s failure to supply route riders at its expense. The provision of the union contract in question had been in effect for ten or fifteen years and had been enforced by the union although he could not recall specific instances.

Ren Rosenberg testified on his own behalf that between 1949 and 1970 he was an independent milk distributor. He had his own milk route, his own customers, and bought his own supplies from processors. His milk route consisted of two parts: approximately 80% was located in a racially changing area on the west side of Chicago and the remaining part was located in Skokie. Prior to the time relevant to the instant case (October 1964 — February 1967), he purchased milk at Twin Oaks Dairy and the Pure Milk Association. During the time he purchased milk from Twin Oaks he also worked in the plant one day each week and the company supplied a route rider for him on that day at company expense. No other processor had ever supplied him with a route rider at its expense.

Rosenberg further testified that in September of 1964 an agent of Hawthorn, Matt Eichhorn, approached him while he was doing his route. Eichhorn attempted to convince him to switch processors. According to Rosenberg, Eichhorn promised that Hawthorn would give him a good price on milk, would supply him with a spare truck if his broke down, and would supply him with route riders. He told Eichhorn he would think about the proposal and they would meet later.

According to Rosenberg, the two men met at a drugstore one week later. Eichhorn additionally offered him a week’s supply of free milk if he would switch to Hawthorn. However, Rosenberg mentioned that he wanted to trade his west side route for one near Skokie. Rosenberg testified that Eichhorn stated that there would be “no problem so far as that [trading routes] is concerned. So Rosenberg agreed to switch to Hawthorn. They agreed to discuss the matter further at Hawthorn’s office.

Rosenberg testified that on about September 23, 1964, a meeting was held in Edwin Dunmore’s office at Hawthorn. In addition to Rosenberg and Eichhorn, William Schulz and Dunmore were present. At that time according to Rosenberg, Eichhorn reviewed the terms of the agreement they had reached including the provision for trading routes on a point for point basis. A point is equivalent to one quart of milk per week which is the method used in the business to determine the value of a milk route. Schulz and Dunmore agreed that there would be no problem and welcomed him to Hawthorn.

Beginning on October 1, 1964, except for several six gallon Norris containers of 2% milk which were unavailable at Hawthorn, Rosenberg testified that he purchased all his supplies from Hawthorn. Thereafter although he made no written requests and filed no grievance with Hawthorn, he made numerous oral requests of Eichhorn for route riders and for route change. He also testified that he made the same request of other officials of Hawthorn (Dunmore, Leroy Thomas and Vince Giacmino) but received no satisfaction.

Rosenberg also testified to the union pay scale for route riders and to the number of weeks he purchased his supplies from Hawthorn for the purpose of calculating the amount of his damages. On being prevented from testifying to the value of points on the west side of Chicago and in Skolde by the sustaining of the counter-defendant’s objection, Rosenberg made an offer of proof to that effect, which was denied.

Edwin Dunmore, Hawthorn’s marketing manager during the time in question, testified that his job was to promote sales. On approximately September 23, 1964, a meeting was held in his office with Ben Rosenberg regarding Rosenberg’s change to Hawthorn. Dunmore testified that Rosenberg was interested in trading his west side route for one in Skokie. Although no promises were made to Rosenberg, “we said we felt we might be able to work something out for him.” Another vendor had previously expressed an interest in such an exchange. Subsequently a Hawthorn solicitor was assigned to look for new business for Rosenberg and some points were delivered directly to Rosenberg. Dunmore further testified that Rosenberg made no request to be supplied with route riders.

Raymond Van Geen, Hawthorn’s corporate credit manager, testified that it was Hawthorn’s policy, and to his knowledge the policy of most processors, not to pay for route riders supplied to independent vendors but that Hawthorn would supply and pay route riders and would charge their services back against the vendor.

Alfred M. Johnson, Vice-President of Twin Oaks Dairy, testified that he had considerable experience in the milk business and in the sale of routes. He testified that the value of a point on the west side of Chicago was about $.50 wMe the value in Skokie was about $2.00. On cross-examination it appeared that the witness did not know the boundaries of Rosenberg’s route or the number of points it contained although he admitted tírese factors were significant.

Frank J. Cost, Hawthorn’s Evanston branch manager during the time in question, testified that he had received a phone caH from Schulz regarding switching points to Rosenberg but that no points were avaHable. Nonetheless, he dispatched a solicitor named Di Servía to drum up business for Rosenberg and that Di Servia had transferred some points directly to Rosenberg. Moreover, he testified that to his knowledge processors do not at their own expense supply route riders to independent vendors.

Vince Giacmino, Cost’s assistant, testified that Hawthorn had never provided any independent vendor route riders at its own expense and that Rosenberg had never requested a route rider so far as he knew.

Rosenberg rested his case at the conclusion of this evidence and Hawthorn moved for judgment in its favor. After hearing the arguments of both sides, the trial court granted Hawthorn’s motion.

Opinion

Rosenberg first contends that the standard a trial court sitting without a jury must apply when ruling on a motion for judgment at the close of plaintiff’s evidence is whether plaintiff established a prima facie case. As corollaries to this rule he asserts that defendant’s motion admits all facts and all reasonable inferences drawn from those facts and that the court must view such facts and inferences in the light most favorable to plaintiff.

Section 64(5) of the CivH Practice Act specificaHy requires the trial court sitting without a jury to “weigh the evidence” when ruling on defendant’s motion for judgment at the close of plaintiff’s case and *[i]f the ruling on the motion is favorable to the defendant, a judgment or decree dismissing the action shall be entered.” This provision was added to the statute by amendment in 1955. Recent cases implementing this amendment include Allfree v. Estate of Rosenthal (1969), 113 Ill.App.2d 90, 92-93, 251 N.E.2d 792, 793; Miller v. Heller (1969), 106 Ill.App.2d 383, 393-394, 246 N.E.2d 150, 156. For a full discussion of this point see the dissenting opinion in Brubaker v. Gould (1962), 34 Ill.App.2d 421, 440-450, 180 N.E.2d 873, 881-886.

Thus, in ruling on a motion at the close of plaintiff’s evidence, a trial court sitting without a jury should not consider the evidence in the light most favorable to plaintiff, as it must in a jury case. Rather, in accordance with the terms of the statute, the court, must weight the evidence (including any that may be favorable to defendant) which necessarily requires the court to draw reasonable inference therefrom, determine the credibility of witnesses, and then not simply decide whether the plaintiff has made out a prima facie case, but make a final determination and enter judgment for defendant if the plaintiff has not met his burden of proof by preponderance of the evidence. Moreover, a reviewing court should not reverse the trial court’s ruling on such a motion unless the ruling is manifestly erroneous. Bilyeu v. Plant (1966), 75 Ill.App.2d 109, 119, 220 N.E.2d 513, 517.

Rosenberg next contends that he established his case for violation of the written union contract. Neither party disputes the terms of the applicable provision of the union contract. As applied to Rosenberg as best we can determine without viewing the whole contract, it required Hawthorn upon proper request to supply and pay for a route rider.

After hearing the evidence, the trial court concluded that Rosenberg had not made a proper request for a route rider. Only the testimony of Rosenberg himself supports his position that he requested a route rider. Although this testimony alone may have been sufficient to establish that the request was made, the testimony of Dunmore and Giacmino, two of several persons to whom Rosenberg testified he had made requests, directly contradicted him and the other persons to whom Rosenberg testified he had made requests were not called as witnesses. Furthermore, Rosenberg admitted that he had filed no grievance although he could have done so and that he had made no written request for a route rider. We believe this situation is exactly what the legislature had in mind in changing the statute to permit the trial court to weigh the evidence in a bench trial on a motion for judgment at the close of plaintiff’s evidence. Here, the time of litigants, lawyers and witnesses, as well as that of the court would be wasted by requiring defendant to put on its case with the same witnesses, and perhaps others to testify to the same effect. Here, the trial court upon weighing the evidence could and did, correctly decide that no proper request was made.

Although Rosenberg asserts that the terms of the contract were perfectly clear and that a request for a route rider would have been a useless gesture, the evidence seems otherwise. Since the full contract was not exhibited with the complaint, we cannot fairly determine the intent of the parties particularly since the provision which is asserted as being applicable refers to another section of the contract. Moreover, the testimony of Van Geen indicates that, in accord with the practice in the trade, Hawthorn would supply and pay for the services of a route rider and would charge the cost of these services back against the vendor. Even Rosenberg’s testimony does not specifically indicate that any agent of Hawthorn agreed that it would pay for a route rider. In these circumstances we cannot say that the trial court’s ruling on this count was manifestly erroneous.

Rosenberg lastly contends that he established his case for violation of an oral contract to trade milk routes. His own testimony is once again the only evidence supporting his position and it does not indicate whether the alleged contract was made at the offices of Hawthorn with Eichhorn or with Dunmore. Furthermore, Dunmore’s testimony indicates that no such promise was made but on the contrary that they agreed only to make an effort to help Rosenberg. This effort, according to both Dunmore and Cost, was made. In light of the evidence, we do not find the trial court’s decision regarding this comit to be manifestly erroneous. Therefore, the judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Johnson, Defendant-Appellant.
    (No. 56417;
    First District (5th Division)
    April 27, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Harold Cowen, Michael Weininger, 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. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSE CHARGED

Armed robbery. Ill. Rev. Stat. 1969, ch. 38, par. 18—2.

JUDGMENT

The jury found defendant guilty of armed robbery, and he was sentenced to a term of 5 to 15 years.

CONTENTIONS RAISED ON APPEAL

1. Defendant was denied a fair trial when a police witness for the State told the jury that defendant had a “criminal history,” and the judge failed to declare a mistrial, even though he agreed defendant had been prejudiced and that the instruction to disregard had been ineffective.

2. Defendant was denied a fair trial when the judge, rather tiran declare a mistrial, attempted to cure the error by falsely stating to the jury that this testimony of the State witness was incorrect.

3. Defendant was prejudiced by the prosecutors use of rebuttal testimony to impeach defendant on a collateral matter.

4. The sentence imposed upon defendant was excessive.

EVIDENCE

Jean Boughton, for the State:

On Saturday, May 16, 1970, she was working as a ticket agent for the Chicago Transit Authority at the 59th and State Streets elevated station in Chicago. At 11:40 P.M., three black men came up to her booth and stood around as if getting change to pay their fares. The next thing she knew, each one had put a gun in the slot of her booth and defendant told her to open the door and raise her hands. The area was well lighted. She opened the booth and went out, passing defendant by a couple of inches. They ransacked the place looking for money; $22.50 was taken; $10 was hers and the rest belonged to the CTA. Two days later, she went to the police station and, after viewing about 200 photos, identified one as being that of defendant. A few weeks later she picked him out of a police line-up.

John Dwyer, for the State:

He had been a member of the Chicago Police Department for 16V2 years. On May 16, 1970, at about 10:30 P.M., he responded to a radio call stating a robbery had taken place at the 59th and State “El” station. He talked with Jean Boughton and filed his report.

Frank Brown, for the State:

He was the investigating police officer in the case. Two days after the incident, the complaining witness identified defendant’s picture from over 100 she had seen. On June 8,1970, defendant was arrested and identified by Mrs. Boughton at a line-up. The witness was then asked by the State’s Attorney:

“Q. Did you make any attempt to arrest him before that day?
A. Yes, sir, I did. The same day that Miss Boughton came into the office we went out and got an arrest warrant and I got a copy of his criminal history sheet—
Mr. Levin: Objection, your Honor.
The Court: I will sustain the objection.
Mr. Levin: Your Honor, may—
The Court: I will strike the answer and instruct the jury to disregard it.”

In chambers, defense counsel moved for a mistrial and a lengthy discussion was held, during which the court stated as follows:

“The Court: I can tell the jury this defendant has no criminal history, I can instruct the jury on it. * * # Mr. State’s Attorney, I want this defendant to have a fair trial, and I am fearful that perhaps he has been prejudiced in some way by this officer’s testimony.
Mr. Phelan (Asst. State’s Attorney): Your Honor, I don’t think that would be proper in this case. First of all, it is not a fact.
The Court: I don’t know what is a fact.
Mr. Phelan: Since it—
The Court: I don’t know whether it is a fact or not. What I am trying to do is see that the defendant gets a fair trial.
Mr. Phelan: I agree. I think he should, but I don’t think you could have it by telling the jury he has no criminal record. You covered it.
The Court: I don’t think that is sufficient.
# # #
Mr. Phelan: I don’t think the court should put itself in the position of telling the jury something like that when it isn’t a fact.
The Court: I don’t know whether it is a fact or not a fact. I do know this, this defendant should be tried upon the evidence that is here, not upon whether he has a criminal history, ever been convicted of any other crime. He should be tried upon the evidence here.”

Then, after further discussion, the judge recalled the jury and instructed them as follows:

“The Court: Before we proceed, ladies and gentlemen of the jury, during Investigator Frank Brown’s testimony this morning some reference was made by Investigator Brown to a “criminal history.” I struck that remark and I instructed this jury to disregard it. I am not sure that my instructing you to disregard it was sufficient. I don’t think it was sufficient caution. I now tell the jury that this defendant has no criminal history and has never been convicted of a crime.”

Michael Johnson was called on his own behalf:

He was 21 years old and on the date of the crime was employed by Chicago Towel Company on the 6:00 A.M. to 3:00 P.M. shift. He usually worked 40 to 45 hours a week. He did not remember where he was at the time of the robbery, but he denied any participation in the crime.

Larry Conant, for the State:

He was personnel manager of Chicago Towel Division of F. W. Mead. Over defense objection, he testified that during the week of May 17,1970, defendant was absent from work on Thursday, May 14, and Friday, May 15.

OPINION

Defendant contends that he was denied a fair trial when the judge erred in refusing defendant’s motion for a mistrial after the investigating officer referred to defendant’s “criminal history sheet.” At the time, however, defense objection to the statement was sustained and the judge immediately instructed the jury to disregard the officer’s remark. An instruction to disregard evidence ordinarily cures error in its admission. (People v. Nelson, 124 Ill.App.2d 280, 260 N.E.2d 251.) This is particularly true when the improper testimony is not directly responsive to the question and is promptly stricken, with an instruction to the jury to disregard it. (People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766; People v. Ogden, 77 Ill.App.2d 312, 222 N.E.2d 329.) In the present case, the witness’ reference to defendant’s “criminal history sheet” was not solicited by the State’s Attorney’s question in a calculated attempt to prejudice the jury. Rather, it appears as an inadvertent remark which went beyond the question asked and was then quickly stricken by the court and the jury was instructed to disregard it. We find that the prompt action by the judge relieved the remark of any substantial prejudicial effect. See People v. O’Neal, 118 Ill.App.2d 116, 254 N.E.2d 559.

Next, defendant maintains that defendant was additionally prejudiced by the judge’s attempt to correct the earlier mistake by falsely telling the jury that defendant did not have a criminal history and had not been convicted of a crime. Specifically, he argues that the judge was informed in chambers by the State’s Attorney that defendant did, in fact, have a criminal record, and in spite of this disclosure, the judge instructed the jury that defendant had no prior “criminal history.” However, the record discloses that defense counsel encouraged the judge in giving to the jury the instruction he now complains of, which should preclude him from arguing the point now on appeal. Also, while we cannot condone instructing the jury by the use of an obvious falsehood, it appears to us that the instruction did not prejudice defendant’s case, but could only have helped it. Still, defendant cites Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620 and the cases relied on therein to support his argument that the jury was so prejudiced by the first reference to defendant’s “criminal history” that the judge’s subsequent denial thereof did not remove its prejudicial effect, but compounded it. Not only were the facts in Bruton much stronger than in the present case (admission of a co-defendant’s confession in a joint trial), but the court in Bruton recognized a still currently acceptable principle which we believe clearly applies to the present case when it said:

“[Ijnstances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ‘A defendant is entitled to a fair trial but not a perfect one.’ [Citation.]” Bruton v. United States, 391 U.S. 123 at 135.

See also People v. Ward, 32 Ill.2d 253, 204 N.E.2d 741, cert. denied 384 U.S. 1022, 86 S.Ct. 1947. Considering the testimony of the witness and the comments of the judge in light of the overall evidence of guilt, we find that they were not a material factor in the conviction. (People v. Nicholls, 42 Ill.2d 91, 100, 245 N.E.2d 771, cert. denied 396 U.S. 1016, 90 S.Ct. 578.) We further believe that they were harmless in relation to the outcome of the case, and that beyond a reasonable doubt, they did not contribute to the jury’s verdict of guilty. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824.

Next, defendant maintains that he was denied a fair trial when the judge allowed him to be impeached on a collateral matter. He states that the testimony of his former employer’s personnel manager stating that defendant had not worked on the Thursday or Friday before tire day of the crime was not proper rebuttal to defendant’s own statement that he usually worked 40 to 45 hours per week. Proper rebuttal evidence is that which explains, repels, contradicts or disproves material evidence given by defendant. (People v. Bell, 328 Ill. 446, 159 N.E. 807.) Here, defendant’s testimony suggested that he had a good work record and was regularly employed 40 to 45 hours a week. That suggestion was contradicted by the State’s rebuttal witness who gave as a specific example defendant’s work record for the week before the crime, during which period defendant had been absent for two days. We consider his statement to have been a sufficiently proper rebuttal to defendant’s statement concerning his work record.

Finally, defendant argues that the sentence of 5 to 15 years was excessive. In aggravation, it was disclosed that at the time of the crime in question, defendant was on probation following his conviction for the unlawful use of a weapon. The offense for which he was being sentenced was armed robbery involving the use of the same type weapon as in his prior conviction. The State recommended a sentence of 5 to 10 years. In mitigation, it was offered that defendant was 21 years old, had a wife and several children. He had completed three years of high school and was trying to finish by attending night school. During the course of the trial, he had been free on bond and had made every court appearance. He had been employed at the time of the occurrence, but had lost his job as a result of his arrest. Under all these circumstances, it was for the trial judge and not this court to determine the proper sentence to be imposed, since he was in a far better position to determine defendant’s rehabilitation potential. (People v. Taylor, 8 Ill.App.3d 727, 290 N.E.2d 342.) We also note that the.relationship between the minimum and the maximum of the sentence properly conform to the principle incorporated in parts of the Illinois Unified Code of Corrections, Ill. Rev. Stat. 1972, ch. 38, par. 1005—8—1, though not specifically applicable to the Class 1 felony involved in this case.

Affirmed.

DRUCKER, P. J., and LORENZ, J., concur.


author: PER CURIAM.

text:
    David Altman, Plaintiff-Appellant, v. Max Gregg, Defendant-Appellee.
    (No. 57071;
    First District (5th Division)
    April 27, 1973.
    Sidney S. Altman, of Chicago, for appellant.
    Ahern & Gillogly, of Chicago, (Daniel C. Ahern, of counsel,) for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Thompson, Defendant-Appellant.
    (No. 57328;
    First District (5th Division)
    April 27, 1973.
    Robert B. Rosen, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Douglas Cannon, Elmer C. Kissane, and James T. J. Keating, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED

Two counts of murder. Ill. Rev. Stat. 1989, ch. 38, pars. 9—1(a)(1) and (2).

JUDGMENT

After a bench trial, defendant was found guilty of voluntary manslaughter and was sentenced to a term of not less than 4 nor more than 10 years.

CONTENTION RAISED ON APPEAL

There was insufficient evidence to establish all elements of the offense of voluntary manslaughter beyond a reasonable doubt.

EVIDENCE

Amelia Currie, for the State:

She is defendant’s mother-in-law and the mother of the deceased, Olivia Thompson. On May 19, 1971, Olivia spent the entire day with her at her home in Chicago, Illinois. At about 8:30 P.M., defendant came to her house. He did not speak to her at that time, but briefly spoke to Olivia, telling her that she could not get her clothes at their apartment that night because he had some business to take care of. Defendant then left, but returned later that night, about 12:30 A.M. She, her daughter, and defendant were in the living room when he asked, “Olivia, what is you going to do?” Her daughter answered that she just wanted to get her clothes. Then the witness said to defendant, “I thought you said she couldn’t get them tonight.” Defendant answered, “I done took care of my business and I wants her to get them damn clothes tonight * * * I am tired of this woman acting like she acting. I done told her this once before. She keep on messing around, and this is one woman I am going to kill.” Defendant then told her daughter to come on, and they both left the house together, got into the car, and drove away. There had been no argument between defendant and her daughter immediately prior to their leaving, and defendant did not force her to leave with him. The witness saw no reason to call the police at that time. Upon leaving, her daughter was wearing a flowered dress with a checkered coat and white slippers. Her daughter drank frequently, but had not been drinking that day.

She called defendant the next morning, and he told her that Olivia had left the car the night before and that he did not know where she was.

On May 21, 1971, the witness went to the police station and spoke with Officer Banahan. He had her look at a photograph which she identified as that of her daughter.

Bernard Banahan, for the State:

He is a Chicago police officer assigned to homicide investigation. On May 21, 1971, Amelia Currie came into the station to report that her daughter was missing. He showed her a picture of the deceased, whom she identified as her daughter. Later that afternoon, he and his partner went to the U.S. Steel Co. to speak with defendant. He told him that he was being arrested for murder, and advised him of his constitutional rights. With defendant’s permission, he searched defendant’s car and found a man’s black trench coat with a red stain on the sleeve. He brought defendant to the station, again advised him of his rights, and had another conversation with him. Defendant related to him that the last time he had seen his wife alive was when he had picked her up from her mother’s house at about midnight on May 19, 1971; that on their way home, they had stopped at a liquor store, and when he returned from the store with a bottle of scotch, his wife had not been in the car; that they had not had an argument and were on friendly terms at the time.

When the witness told defendant that his mother-in-law’s account of what had happened at her home contradicted his and that when his wife’s body was found, she was wearing clothes other than those described by her mother, defendant changed his story to say that he had had an argument with his wife when they arrived home, that they began to fight, and that he had struck her with his fists several times. (There was no evidence that defendant’s physical appearance gave any indication of his having been in a fight.) Defendant went on to say that when she fell to the floor and he could not wake her, he dragged her from the house to the car and disposed of her body in an alley near 53rd and Indiana, throwing her purse in another alley a few blocks away. Defendant did not relate to him what his wife had been wearing.

He asked defendant if he would sign a statement as to what he had admitted, but defendant refused.

The body was recovered in the alley behind 5346 Indiana, about two blocks south of defendant’s residence. The purse was found by someone who lived at 4939 S. Wabash.

James E. Dvorak, for the State:

He is a Chicago police officer. On May 20, 1971, at about 6:50 A.M., he and his partner observed a female Negro clad in a white pants suit and one black leather shoe lying face up in an alley behind 5346 S. Indiana, Chicago. Her face was battered and bruised. The body was transported to a hospital and then to the Cook County Morgue. He saw the unclothed body at the morgue either that day or the next and observed bruises on both face and body.

Stipulation

It was stipulated that the death of the deceased resulted from traumatic laceration of the liver, and that contributing factors were bruises to the face, neck, chest, abdomen and upper extremities, with fractures of the fourth, fifth and sixth ribs on the right side.

John Thompson, in his own behalf:

On May 19, 1971, he went to his mother-in-law’s house at 12:00 noon, had a cup of coffee, joked with Mrs. Currie’s husband, and left around 3:00 P.M. His wife was not there, and his mother-in-law had not heard from her. As of that date, his wife had left him and had been gone for three days. His mother-in-law called him later that day and told him that her daughter was at her house, and then her daughter got on the phone and asked him to come and pick her up. He drove back to his mother-in-law’s house at about midnight. He knocked on the door, but did not go into the house. He never threatened to kill his wife in his mother-in-law’s presence on that day. He waited in the car until his wife came out. She was wearing a white slack suit and black shoes. She got into the car, and on their way home, they stopped at a liquor store around 39th and King Drive to buy a half pint of scotch. He was in the store about 20 minutes, and when he returned to the car, his wife was gone. He walked back to the store and looked around, and then drove around the block, but could not find her, finally returning home without her. When his mother-in-law called a short time later to ask how her daughter was, he answered that he did not know because she had left the car and he didn’t know where she was.

They had been married about five years and had no children. She had left him on many other occasions, and it was not unusual for her to leave for a day or two.

May 19 and 20, 1971, were his days off, and on May 21, 1971, he went to work at U.S. Steel Co., where he was employed as a caster. He was arrested there. He did not give permission to any officer to search his car. He was taken to headquarters, and when he was questioned there, he told the same account that he had just related in court. He never told the police that he had had an argument with his wife or that he had struck her with his fists until she died.

OPINION

Although defendant was indicted for the murder of his wife, the trial judge, sitting without a jury, found him guilty of voluntary manslaughter. In a murder trial, a defendant may properly be found guilty of the lesser offense of voluntary manslaughter, but only if the evidence adduced at trial establishes the necessary elements of that offense. People v. Crawford, 387 Ill. 616, 56 N.E.2d 805; People v. Adams, 113 Ill.App.2d 205, 252 N.E.2d 35.

While we agree with the decision reached in the recent case of People v. Young, 11 Ill.App.3d 609, (N.E.2d), the court’s opinion seems to indicate that when a defendant is found guilty of manslaughter on a charge of murder, something in the nature of an estoppel arises which prevents him from complaining on appeal that the evidence did not support the lesser charge. We consider such a principle clearly infer-able from the court’s citation of six cases followed by this statement:

“From these cases a number of principles appear:
1. The defendant may not complain of a finding of guilty of manslaughter where the evidence shows that he could have been found guilty of murder.
2 # * # ”

The cases referred to are: People v. Green, 23 Ill.2d 584, 179 N.E.2d 644; People v. Wiggins, 12 Ill.2d 418, 147 N.E.2d 80; People v. Franklin, 390 Ill. 108, 60 N.E.2d 870; People v. Crawford, 387 Ill. 616, 56 N.E.2d 805; People v. Sain, 384 Ill. 394, 51 N.E.2d 557; People v. Binion, 132 Ill.App.2d 257, 267 N.E.2d 715.

In our opinion, these cases do not support so broad a conclusion. Rather do we believe that they require conviction of the lesser crime to be supported in all its elements by the evidence in the case. See, for example, People v. Wiggins, 12 Ill.2d 418, 426, 147 N.E.2d 80, 85, where the court said:

“In the instant case defendant repeatedly stated that she did not intend to kill or harm deceased; consequently, the finding of the trial court that the requisite element of malice was lacking, and that the killing, without intent to do so, in the course of an unlawful act, constituted involuntary manslaughter was substantiated by the record and was in accordance with the definition of the crime in the Criminal Code. Ill.Rev. Stat. 1957, chap. 38, par. 363.” (Emphasis added.)

Also see People v. Binion, 132 Ill.App.2d 257, 259-260, 267 N.E.2d 715, 716:

“The parties appear to agree that under an indictment for murder the court may find the defendant guilty of the lesser included offense of voluntary manslaughter and that an accused has no right to limit the determination to guilt or innocence on a murder charge where the evidence would support a conviction for the lesser charge. (People v. Taylor, 36 Ill.2d 483, 489; People v. Green, 23 Ill.2d 584, 590.) The fact that the evidence would have justified a finding of guilty on the charge of murder is not one of which the defendant can complain.” (Emphasis added.)

Defendant here contends, and we agree, that the evidence was insufficient for the purpose of proving him guilty of voluntary manslaughter. Section 9 — 2 of the Illinois Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 9—2), specifically sets forth the elements of the crime. The section reads in pertinent part:

“Sec. 9 — 2 (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, # #
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Emphasis added.)

There is nothing in the record to indicate that defendant was acting under a “sudden and intense passion resulting from serious provocation.” Taking the testimony of Mrs. Currie as true, defendant, in speaking to her at her home, threatened to kill his wife. Despite this, it was still Mrs. Currie’s testimony that in conversation between defendant and his wife, they had not engaged in an argument, that defendant had not forced his wife to leave with him, and that after they left together, she had seen no reason to call the police. From this testimony, it cannot be inferred that the deceased provoked defendant to take violent physical action against her, or that any action defendant might later have taken was the result of an intense passion generated thereby. Considering Officer Banahan’s testimony, defendant admitted that he had had an argument with his wife, and that when they began to fight, he had beaten her with his fists. However, according to this oral statement, there was no indication that defendant had been seriously provoked, and in defendant’s testimony he denied the entire episode. The only evidence as to provocation which was brought out by the State was essentially that defendant had had an argument with his wife, whether it was the argument inferred from the testimony of Mrs. Currie as to what had taken place in her living room, or the argument defendant was said to have admitted to Officer Banahan. In either case, there was no evidence of any related violence of consequence and none whatsoever admitted by defendant at the trial. It is a well-established proposition of law that mere words are insufficient provocation within the meaning of that term as an element of voluntary manslaughter. People v. Lowe, 122 Ill.App.2d 197, 212-213, 258 N.E.2d 370, 378.

We conclude that while the evidence might have sustained a conviction for murder, a voluntary manslaughter conviction cannot stand. Since defendant’s conviction of the lesser crime amounted to an acquittal of the greater crime of murder, and we have found that the evidence failed to prove voluntary manslaughter beyond a reasonable doubt, the judgment appealed from must be reversed.

The judgment of the circuit court is reversed.

Reversed.

DRUCKER, P. J., and LORENZ, J., concur.

        Murder, (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another;


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Vanable, a/k/a George Mattox, Defendant-Appellant.
    (No. 56348;
    First District (1st Division)
    April 30, 1973.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.

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 Albert A. Stroka, Assistant State’s Attorneys, of counsel,) for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elmore Butler, Jr., Defendant-Appellant.
    (No. 57003;
    First District (1st Division)
    April 30, 1973.
    James J. Doherty, Public Defender, of Chicago, (Michael Weininger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert T. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Burkchardt, Defendant-Appellant.
    (No. 55063;
    First District (2nd Division)
    May 1, 1973.

      Brown, Rosenthal & Wilson, of Chicago, (Ben J. Rosenthal and Woodrow P. Wilson, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

The issues in this appeal arise from a prosecution that followed the theatre showing of a motion picture, “The Curse of Her Flesh.” Defendant Paul Burkhardt, the theatre manager, was arrested and charged with obscenity. He waived trial by jury, was found guilty and sentenced to pay a fine of $1,000.

The State’s evidence consisted of tire motion picture, the testimony of a police officer who identified defendant as the theatre manager and a stipulation. The parties agreed that if three vice control policemen of the City of Chicago were called, they would testify that they saw “The Curse of Her Flesh”; that it portrayed matters which appealed to the prurient interest of the average adult; that it had no redeeming social value and that it went beyond contemporary community standards in the portrayal of sexual matters. This was the State’s case.

Defendant then moved for a directed finding of not guilty. In the argument that followed, the assistant state’s attorney told the court that the “* * * contemporary community standards in Cook County, Illinois are the standards, which must guide us and must guide this Court.” Defendant’s counsel then asked if the court was applying “local contemporary community standards.” The trial judge replied, “That is right.” Thereafter, defendant’s motion was denied. He then put on his defense.

Defendant offered to show that “The Curse of Her Flesh” was part of a trilogy that began with “The Touch of Her Flesh,” a picture that was shown in the City of Chicago with the approval of censorship authorities. The State objected but the trial judge agreed to view “The Touch of Her Flesh.” Next, defendant offered to show that the picture in this case, “The Curse of Her Flesh,” had been exhibited in 16 states prior to its Chicago showing, all without incident or complaint that it was obscene. The State objected and the court ruled that evidence of tírese facts was not relevant. Defendant, however, was allowed to make an offer of proof.

Then, defendant put on evidence that consisted of his testimony and that of a woman patron of his theatre. The woman, a saleslady in a store on North Michigan Avenue in Chicago, testified that in the company of two male friends she saw the motion picture in question but it impressed her as “* * * just a poorly made movie, rather amateurish. I have seen worse. There is certainly much worse on the board right now.” The woman said that the picture did not appeal to her prurient interest nor arouse her sexual desires. Following the woman, defendant testified that although he managed the theatre, he did not book “The Curse of Her Flesh,” nor did he see it.

With this testimony, both sides rested. Defendant’s counsel then argued that even if the trial court was being guided by local contemporary standards, the State had not introduced any evidence as to what those standards were. Counsel argued that “The Curse of Her Flesh” had been shown in 16 states without any suggestion that it was obscene. Therefore, it was proper for defendant to have relied on this fact in determining whether he could, without violating the criminal obscenity statute, exhibit the motion picture. After hearing the assistant state’s attorney in reply, the trial judge reviewed the detaHs of the motion picture, summarized the evidence and found that defendant knew the nature of the picture. The trial judge concluded that “[t]he dominant theme [of the picture] is designed, in this court’s opinion, to appeal to the prurient interests of the standards of this community, the standards contemporary of tins community”; that the motion picture was not hardcore pornography but “* 6 * a conglomeration of sexual activities that do not meet, in my judgment, the contemporary standards of this community, and would appeal and does appeal to the prurient or lustful interests of the average person # The trial court ruled that the picture was obscene and found defendant guilty.

A short time later, defendant filed a motion for a new trial. In its support, his lawyer reiterated the argument that had been made in support of the motions for acquittal. The motion was denied and the fine was imposed. In this appeal, defendant presents three issues. I. Whether Ill. Rev. Stat. 1969, ch. 38, par. 11—20, the Illinois criminal obscenity statute, is constitutional under the first and fourteenth amendments to the United States Constitution. II. Whether the evidence proved that “The Curse of Her Flesh” was obscene within the meaning of the Illinois criminal obscenity statute. III. Whether the evidence proved defendant guilty beyond a reasonable doubt.

I.

On file first issue, defendant contends that Illinois’ criminal obscenity statute (IH. Rev. Stat. 1969, ch. 38, par. 11 — 20), is constitutional because its definition of obscenity is too vague and indefinite to meet the due process requirements of the federal constitution. We are constrained to hold otherwise. This contention was rejected in People v. Sikora, 32 Ill.2d 260, 204 N.E.2d 768. In decisions following Sikora, our Supreme Court has construed this state’s obscenity statute as containing the requirements of constitutionality declared in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General (1966), 383 U.S. 413, 16 L.Ed.2d 1, 86 S.Ct. 975. A discussion of these requirements can be found in City of Blue Island v. DeVilbiss, 41 Ill.2d 135, 242 N.E.2d 761 and City of Chicago v. Geraci, 46 Ill.2d 576, 264 N.E.2d 153. We conclude that Ill. Rev. Stat. 1969, ch. 38, par. 11—20 is constitutional. Movies, Inc. v. Conlisk (D.C. Ill. 1971), 345 F. Supp. 780.

II

On the second issue, defendant contends that within the meaning of the obscenity statute, tire evidence did not prove that “The Curse of Her Flesh” was obscene. This issue is resolved by application of statutory and constitutional principles that govern the law of obscenity.

Motion pictures, like the one in this case, are a form of expression whose liberty is safeguarded by the first amendment to the United States Constitution. (Joseph Burstyn, Inc. v. Wilson (1952), 343 U.S. 495, 96 L.Ed. 1098, 72 S.Ct. 777; see Comment, Obscenity in the Movies, 18 Loyola L. Rev. 354 (1971-72).) And in a case of this nature, we must independently determine whether the picture in issue is obscene or one that is entitled to constitutional protection. (City of Chicago v. Universal Publishing & Distributing Corp., 34 Ill.2d 250, 252, 215 N.E.2d 251.) We do this by a careful evaluation of the evidence and the findings of the trial court. If necessary, a reviewing court will view the motion picture.

In a prosecution for obscenity, the state must establish that “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” (Memoirs, 383 U.S. 413, 418; State v. Lavin (1973), (Iowa), 204 N.W.2d 844.) Within this tripartite test, it is the rule in this state that if the material in question is admitted for viewing by the corut or jury and defendant offers no evidence relating to contemporary community standards, “8 * * the triers of fact ‘are the exclusive judges of what the common conscience of the community is’.” Roth v. United States (1957), 354 U.S. 476, 490, 1 L.Ed.2d 1498, 77 S.Ct. 1304; City of Chicago v. Kimmel, 31 Ill.2d 202, 206, 201 N.E.2d 386.

In this case, however, the trial judge looked to the “contemporary community standards in Cook County, Illinois.” It appears, however, that subsection (c) (4) of our statute (Ill. Rev. Stat. 1969, ch. 38, sec. 11 — 20), refers to what evidence is admissible and speaks of tire “degree, if any, of public acceptance of the material in this State 8 * 8.” (Emphasis added.) At the very least, then, the statute contemplates a statewide standard, not a standard that varies from county to county. Therefore, the trial court’s application of the contemporary community standards in Cook County, Illinois was reversible error. This was the holding of our Supreme Court in People v. Butler, 49 Ill.2d 435, 275 N.E.2d 400.

In addition, the trial court found that although “The Curse of Her Flesh” was not hard-core pornography, it was nevertheless obscene. It is settled that under the first and fourteenth amendments to the federal constitution, criminal laws that proscribe obscenity are constitutionally limited to the principles set forth in Roth, Jacobellis, Manual Enterprises, Inc. v. Day, 370 U.S. 478, 8 L.Ed.2d 639, 82 S.Ct. 1432 and summarized in Memoirs, 383 U.S. at 418. Of course, the State has the power to proscribe obscenity; but such proscription must be cautiously applied because “[t]he danger of a violation of cherished First Amendment rights necessitates [a] narrow construction * * (People v. Richmond County News, Inc., 9 N.Y.2d 578, 175 N.E.2d 681, 682.) A narrow construction, one consistent with Roth and its progeny, is constitutionally limited to hard-core pornography. (Jacobellis v. Ohio, 378 U.S. at 197, (Stewart, J., concurring); People v. Richmond County News, Inc., supra; Zeitlin v. Arnebergh, 59 Cal.2d 901, 383 P.2d 152; and see Annot., 5 A.L.R.3d 1158.) Consistent with this constitutional limitation, material is obscene, within the meaning of the Illinois criminal obscenity statute, if it is “patently offensive.” (City of Chicago v. Universal Publishing & Distributing Corp., 34 Ill.2d 250, 254, 215 N.E.2d 251.) Therefore, the trial comt’s conclusion that “The Curse of Her Flesh” was obscene is refuted by the finding that the film was not hard-core pornography.

Moreover, we have concluded that neither the evidence nor the other findings disclose that this motion picture contains patently offensive material. (Compare People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691; People v. Price, 8 Ill.App.3d 158, 289 N.E.2d 280.) For these reasons it is our judgment that “The Curse of Her Flesh” was not proved obscene within either the meaning of the Illinois criminal obscenity statute or applicable United States Supreme Court decisions.

III.

This being so, it follows that the evidence did not prove beyond a reasonable doubt that defendant was guilty of criminal obscenity. “The Curse of Her Flesh” was not obscene within the meaning of the Illinois criminal obscenity statute. Therefore, neither knowingly nor recklessly could defendant have exhibited an obscene motion picture as charged in the two-count complaint. Accordingly, tire judgment is reversed.

Judgment reversed.

DRUCKER, P. J., and SCHWARTZ, J„ concur.

      A two-count complaint, alleged that on October 14, 1968 defendant “* 9 9 provided and exhibited an obscene motion picture, to wit: ‘The Curse of Her Flesh’ * s * with knowledge of the nature or content thereof. * * * [Pjrovided and exhibited an obscene motion picture, to wit: ‘The Curse of Her Flesh,’ [and] recklessly failed to exercise reasonable inspection which would have disclosed the nature or content thereof in violation of Chapter 38, Section 11 — 20 Illinois Revised Statute * *

       “A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:
      (1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or

        # # a
      (3) Publishes, exhibits or otherwise makes available anything obscene; or
      # # #
      (d) Penalty.
      A person convicted of obscenity shall for the first offense be fined not to exceed $1,000.00 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both 9 9 9.”

      Ill. Rev. Stat. 1969, ch. 38, par. 11—20(a)(1), (3); (d)


text:
    Walter F. Kerrigan, Plaintiff-Appellant, v. Unity Savings Association et al., Defendants-Appellees.
    (No. 55637;
    First District (2nd Division)
    May 1, 1973.

      Frank J. Mackey, Jr., and Sidney Z. Karasik, both of Chicago, for appellant.
    Morris I. Leibman and David P. List, both of Sidley & Austin, of Chicago, for appellees.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is from the judgment entered in a derivative suit by the plaintiff Walter F. Kerrigan, a reserve shareholder, on behalf of Unity Savings Association and its members. The complaint prayed for an accounting and equitable relief against Plaza Insurance Agency, Inc., an Illinois corporation, Saul Z. Bass, Mitchell H. Bass, Howard I. Bass, Louis L. Spear and Myron I. Voss. It alleged that Unity was a permanent reserve savings and loan association engaged in savings and loan activities; that in 1962, the individual defendant, officers and directors of Unity, organized Plaza as an insurance agency and that Unity refers its borrowers to Plaza for fire, homeowners and other forms of insurance coverage, enabling defendants, or some of them, to appropriate a business opportunity that belongs to Unity.

Defendants appeared, answered the complaint, denied its material allegations and alleged that since the statutes of Illinois prohibit a savings and loan association such as Unity from engaging directly or indirectly in the insurance brokerage business, they did not appropriate a business opportunity that belonged to Unity. Thereafter, supported by his affidavit, plaintiff filed a motion for summary judgment limited to his claim that defendants had “* * * unlawfully diverted to themselves insurance profits that rightfully should go to the Unity Savings Association and its members.” A short time later, defendants filed a similar motion, supported by the affidavit of Howard I. Bass, in which they alleged that there was no genuine issue as to any material fact and that they were “entitled to judgment as a matter of law because the Illinois Revised Statutes, chapter 32, sections 701 through 744, (Illinois Savings and Loan Act) and chapter 73, section 1065.40 [of the Insurance Code] specifically prohibit defendants from engaging in those practices which plaintiff alleges in his Complaint * * After hearing the parties, including consideration of their memoranda of law, the trial court, without stating the grounds, granted defendants’ motion and dismissed the suit. From this ruling, plaintiff presents two issues. (I.) Whether an Illinois chartered savings and loan association has statutory authority to engage, directly or indirectly, in the business of selling fire and casualty insurance. (II.) Whether defendants, officers and directors of Unity Savings Association, in violation of their fiduciary duties, appropriated a business opportunity that belonged to Unity.

In this State, the authority of savings and loan associations is found in the Illinois Savings and Loan Act, a law adopted in 1955, but one with statutory antecedents that go back to 1872. (See S.H.A., ch. 32, sec. 701 et seq., Historical Notes.) The statute has always provided that a savings association “* * * shall have any power conferred on a corporation by the Business Corporation Act, and any power not prohibited by law, which is reasonably incident to the accomplishment of the express powers conferred upon the association by this Act.” (Ill. Rev. Stat. 1967, ch. 32, par. 708.) The Illinois Insurance Code provides that a business corporation can qualify to be an insurance agent. (See Ill. Rev. Stat. 1967, ch. 73, par. 1065.37.) A careful reading of both statutes (Ill. Rev. Stat. 1967, ch. 32, pars. 701 to 944 and Ill. Rev. Stat. 1967, ch. 73, pars. 1065.36 to 1065.59), fails to disclose any provision specifically prohibiting a savings and loan association from engaging in the business of selling fire and casualty insurance. In this record, it does not appear that either the Commissioner of Savings and Loan Associations or the Director of Insurance has ever determined that an Illinois savings and loan association cannot sell casualty insurance. Neither our research nor that of counsel for the parties had produced an administrative or court ruling that a state chartered savings association like Unity lacked statutory authority to engage, directly or indirectly, in the business of selling fire and casualty insurance. On the contrary, there are judicial decisions that suggest otherwise. And in determining the pertinency of these decisions, it is well to bear in mind that one of the express powers of an Illinois savings and loan association is its authority to loan money on the security of real estate. See Ill. Rev. Stat. 1967, ch. 32, par. 791(b).

In Chicago Building Society v. Crowell, 65 Ill. 453, a loan association agreed to procure fire insurance for a borrower and see to it that the policy was renewed. The association failed to perform its agreement. The building on the mortgaged property was destroyed by fire. In a suit by the borrower, judgment was entered against the lender. On appeal, the Supreme Court held that since the association was authorized to make loans and provide for their security, it could agree to procure insurance because procuring insurance was incident to the making of loans by the association. 65 Ill. 453 at 457.

In Biggs v. Carbondale Building L. & H. Ass’n., 194 Ill.App. 171 (Abstr.), a judgment was entered against a loan and homestead association for breach of an agreement to procure insurance on a borrowers property. One of the loan association’s special pleas was ultra vires, tire contention being that the association lacked the authority to procure insurance for a borrower. The court held that the authority to procure fire insurance was incident to the authority to make loans on real estate and provide for their security.

In Goodman v. Perpetual Building Association (Dist. Ct. D.C. 1970), 320 F.Supp. 20, the case contained the issues presented to us in this appeal. There the plaintiffs, as did plaintiff here, brought a derivative suit against the association directors and an insurance broker for injunctive and other relief alleging breach of fiduciary duty on the part of the directors with respect to insurance transactions on property securing the association’s loans. The defendants, as do defendants here, contended that the association could not engage in the business of selling insurance; therefore, organization by them of a partnership insurance agency was not an appropriation of the corporate opportunity in the insurance business that was generated by the association through its loans. The court entered judgment for the plaintiffs, holding that the association could engage in the business of selling casualty insurance in the District of Columbia and to that extent defendants had to account for appropriation of business which belong to the association in which they were officers and directors.

Despite the absence of any statutory provision, administrative ruling or court decision to support them, defendants who were officers and directors of Unity and controlled its business affairs, concluded in 1962 that Illinois law prohibited the association from engaging in the sale of fire and casualty insurance. Accordingly, they organized and became the owners of Plaza, an agency corporation to which was referred the insurance business generated by Unity’s loan business. The record before us does not disclose how defendants reached the conclusion that Unity could not engage in the insurance brokerage business. It does not appear, for example, that before they organized Plaza defendants, on behalf of Unity, applied for an insurance agent’s license or sought to create an insurance agency corporation for it. Defendants do not claim they sought independent legal advice or obtained the views of disinterested persons concerning Unity’s qualifications to engage directly or indirectly in the insurance brokerage business. There is no showing that either the Commissioner of Savings and Loan Associations (Ill. Rev. Stat. 1967, ch. 32, pars. 841, 841.2), or the Director of Insurance (Ill. Rev. Stat. 1967, ch. 73, par. 1013), was asked to give an opinion or make a ruling on the subject.

From these facts, plaintiff contends that when defendants organized Plaza as an insurance agency for then benefit, they could have organized a corporation for the benefit of Unity and its members. Plaintiff argues that Unity, through such a corporation, could have sold the fire and casualty insurance needed by its borrowers and generated by its loans. To support this contention, plaintiff relies on the fact that the Illinois Savings and Loan Act, from its enactment in 1955, gave savings associations like Unity, the power “[t]o become a member of the Federal Home Loan Bank, and to have all power of such a member which are not inconsistent with the provisions of this Act; and to have all powers granted to Federal Savings and Loan Associations except as limited or prohibited by this Act subject to regulation of the Commissioner wherever applicable.” (Ill. Rev. Stat. 1967, ch. 32, par. 706(c).) In 1964, Congress amended the Home Owners Loan Act of 1933 to provide that federally organized savings and loan associations could invest in service corporations. (12 U.S.C.A. sec. 1464(c).) On November 8, 1967, in a policy statement concerning administration of the federal savings and loan system, the Federal Home Loan Bank Board declared that “[i]n addition to those activities which a Federal association is authorized to perform, the Board will consider for approval applications in which the service corporation, or a subsidiary, has authority to act as an insurance agent * * (See 32 Fed. Reg. 15747 (1967); 12 C.F.R. sec. 556.3(c).) In apparent conformance with this federal regulation, the Illinois legislature amended the savings and loan act to provide that Illinois savings associations shall have the general power “[t]o purchase stock in a Service Corporation in an amount not to exceed 2% of the association’s assets # (Ill. Rev. Stat. 1967, ch. 32, par. 706(i).) A service corporation is a subsidiary, another corporation invested in or formed by a savings and loan association to render a needed service. (See 12 C.F.R. sec. 545.9 — 1(b).) Under the terms of the Illinois Insurance Code, a service corporation can be an insurance agency because “[t]he term ‘agent’ means any person, partnership, association or corporation * # (Ill. Rev. Stat. 1967, ch. 73, par. 1065.37.) From these sources of state and federal law, plaintiff contended in the trial court and does before us, that through a subsidiary or a service corporation, an Illinois savings and loan association like Unity has always had the statutory authority to engage in the business of selling fire and casualty insurance.

Defendants meet these contentions with tire argument that even if the Illinois savings and loan act gave associations like Unity the statutory authority to sell casualty insurance, there are two provisions of the Illinois Insurance Code which Unity could not meet. First, the Code requires that to qualify for a license, an association or corporation must be “actively engaged” in the insurance business.

The term “actively engaged” shall be taken to mean * * * that the applicant intends to write or place during the license year * * * a total volume of premiums on insurance for others, at least twice that of the combined total volume of premiums of insurance upon his or its own property or risks, or upon the property or risks of his or its employer, or the property or risks of members, officers and directors if applicant is a partnership, association or corporation. Ill. Rev. Stat. 1967, ch. 73, par. 1065.55.

Defendants argue that the insurance Unity would sell through a subsidiary or service corporation would be on its own risks or those of its members. This being so, defendants insist, the subsidiary or service corporation would have to generate from “others” twice as much insurance as that produced by Unity loan activities, an impossible task. Second, the Code provides that money, commission, brokerage or allowance of anything of value for solicitation, negotiation or effecting of policies or contracts for insurance on property or risks in this state, may be paid by an insurance company only to its licensed agent or broker, by an agent only to its licensed solicitor of licensed agent for the same company; or by a broker only to his licensed solicitor or to a licensed broker. (Ill. Rev. Stat. 1967, ch. 73, par. 1065.40.) Receipts of money or things of value in violation of this statute are rebates. Therefore, defendants argue that if through a subsidiary or service corporation Unity were to receive any commission or profit from the solicitation, negotiation or effecting of policies of fire or casualty insurance in Illinois, it would be receiving illegal rebates. In our judgment, these arguments lack merit.

A savings and loan association is a corporation. It is an entity separate and distinct from its members and generally, from any subsidiary corporation in which it may have an interest. (Dregne v. Five Cent Cab Co., 381 Ill. 594, 46 N.E.2d 386; compare Divco-Wayne Sales Financial Corp. v. Martin Vehicle Sales, Inc., 45 Ill.App.2d 192, 195

N.E.2d 287.) Moreover, when a Unity mortgage transaction is closed and a fire or casualty insurance policy is issued to cover the mortgaged real estate, the risk insured is not that of Unity, the mortgagee; it is that of the owner, the mortgagor. At the time of closing, when the insurance commission is earned, Illinois law of mortgages gives the mortgagee only a hen on the land to secure payment of the debt. (Central Republic Trust Co. v. Peterson Furniture Co., 279 IILApp. 492, I.L.P. Mortgages, sec. 112.) Therefore, all the insurance which a savings association like Unity sells either through a subsidiary or service corporation would be with “others” as that concept is used in the Illinois Insurance Code.

A rebate, within the condemnation of statutes forbidding such practices in connection with insurance premiums, is a reduction from a stipulated premium allowed pursuant to an antecedent contract. (Tucson Federal Sav. v. Loan Ass’n. v. Aetna Insurance Corp. (1952), 74 Ariz. 163, 245 P.2d 423, 427; 44 C.J.S. Insurance sec. 342b.) If Unity had a subsidiary or service corporation through which it sold casualty insurance, it would not be engaged in an antecedent contract for the reduction of stipulated premiums. Hence, the commissions and profits would not be rebates. (See Goodman v. Perpetual Building Association (Dist. Ct. D.C. 1970), 320 F. Supp. 20; compare Goodpaster v. Southern Insurance Agency (1943), 293 Ky. 420, 169 S.W.2d 1.) For these reasons, either a subsidiary or a service corporation, invested in or organized by Unity as an insurance agency, could meet all the requirements of the Illinois Insurance Code. Accordingly, we hold that in 1962 when defendants organized Plaza, an Illinois savings association like Unity, through a subsidiary corporation, and additionally after 1967 through a service corporation, had statutory authority to engage in the business of selling fire and casualty insurance. Whether in fact Unity could engage in this business is a question that could not be decided in a summary proceeding. Therefore, the trial court erred in granting defendants’ motion for summary judgment.

II.

The opportunity to sell fire and casualty insurance was created by Unity’s savings and loan business. Under the terms of its loans, borrowers were required to insure their mortgaged real estate against fire and other casualty. The insurer had to be a responsible one, acceptable to Unity. Therefore, the business opportunity in the sale of this insurance belonged to Unity. As against the individual defendants, its directors and officers, this business interest was protected by the doctrine of corporate opportunity.

The doctrine of corporate opportunity is not new to our law. It is only one phase of the cardinal rule that requires undivided loyalty from corporate fiduciaries. In other words, one who is a fiduciary to a corporation may not acquire, in opposition to it, any property or tangible expectancy in which it has an interest or which is essential to its existence. (3 Fletcher Cyclopedia of Corporations, sec. 861.1 (perm. ed. 1965); Paulman v. Kritzer, 74 Ill.App.2d 284, 219 N.E.2d 541.)

Directors and officers of a corporation are fiduciaries. They are the trustees of its business and property. In this capacity, they are subject to the general rule of trusts and trustees that they cannot, in their dealings with the business or property of the corporation, use their relation to it for their own personal gain. (Dixmoor Golf Club v. Evans, 325 Ill. 612, 615-116, 156 N.E. 785; Winger v. Chicago Bank & Trust Co., 394 Ill. 94, 67 N.E.2d 265; Johnson v. Central Standard Life Ins. Co., 102 Ill.App.2d 15, 243 N.E.2d 376.) Plaintiff contends that since 1962 when they organized Plaza, the individual defendants, in breach of their fiduciary duties, and in violation of the corporate opportunity doctrine, have wrongfully appropriated Unity’s business opportunity in the sale of fire and casualty insurance.

Whether the directors or officers of a corporation have appropriated something for themselves, which, in all fairness, belongs to their corporation, is always a question of fact to be decided from all the circumstances. (Equity Corporation v. Milton (Del. 1966), 43 D.Ch. 160, 221 A.2d 494.) Consistent with this principle, it has been held that whether a business opportunity is a corporate one, or one within the legitimate interests of officers or directors, depends on the facts. (Alvest, Inc. v. Superior Oil Corporation, (Alas. 1965), 398 P.2d 213; Diedrick v. Helm (1944), 217 Minn. 483, 14 N.W.2d 913; Guth v. Loft, Inc. (1939), 23 Del. Ch. 255, 5 A.2d 503.) In this case, the affidavits in support of the motions for summary judgment raised an issue of fact whether defendants, in violation of their fiduciary duties, had breached the doctrine of corporate opportunity by appropriating a business that belonged to Unity. This issue could be resolved only in a trial of this cause on its merits.

For these reasons, the judgment is reversed and the cause is remanded with directions that defendants’ motion be denied; and that the derivative suit be redocketed in the trial court for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded with directions,

STAMOS, P. J., and SCHWARTZ, J., concur.

       The only authority cited by defendants in support of their position is a 1955 opinion which the Illinois Attorney General gave to the Auditor of Public Accounts. See 1955 Ops. Att’y. Gen. 97 (No. 210, 1955). We have examined this opinion and find neither its reasoning nor conclusions persuasive. Compare Rogers Park Post No. 108 v. Brenza, 8 Ill.2d 286, 134 N.E.2d 292; Alsen v. Stoner, 114 Ill.App.2d 216, 252 N.E.2d 488.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Respondent-Appellee, v. Lillian Davis, Petitioner-Appellant.
    (No. 55518;
    First District (3rd Division)
    May 3, 1973.

      Jerrold J. Blumoff, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Ronald Neville, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The director of the Cook County Department of Public Aid filed a petition in the Juvenile Court alleging that a two-year-old child named Mario Davis was not receiving proper care because of the mental illness of his mother. After a hearing, the child was placed in the temporaiy custody of the Division of Child Welfare, Department of Children and Family Services of the State of Illinois.

Three subsequent hearings were held on the issue of the child’s dependency. At the first of these, Lillian Davis, the child’s mother, was called as a witness pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, par. 60.) Her attorney objected, the objection was overruled and she testified under protest.

At the conclusion of the third hearing, the trial court found Mario to be a dependent child and appointed a guardian for him.

In this appeal Mrs. Davis contends that compelling her to testify as an adverse witness was a denial of due process, was contrary to the provisions of the Juvenile Court Act and was a violation of her constitutional right against self-incrimination.

The objection to Mrs. Davis’s testifying was on tire ground that this violated her right against self-incrimination. No objection was made that calling her as an adverse witness was either a denial of due process or contrary to the Juvenile Court Act. (Ill. Rev. Stat. 1969, ch. 37, par. 701—1 et seq.) If a party makes an objection for one reason, he cannot raise different reasons for his objection on appeal. (People v. Norman (1963), 28 Ill.2d 77, 190 N.E.2d 819; People v. Washington (1962), 23 Ill.2d 546, 179 N.E.2d 635; People v. Preforms (1956), 9 Ill.2d 92, 136 N.E.2d 817.) Furthermore, calling Mrs. Davis as a witness did not deprive her of due process. All the essential elements of due process were afforded her. The proceedings were orderly and were conducted under established rules of procedure. She was notified of the dependency proceedings, she was present at the trial, she was represented by counsel, she was given an adequate opportunity to defend herself, she cross-examined opposing witnesses, she called witnesses in her defense and voluntarily testified in her own behalf. Grattan v. Ahlberg Co. (1940), 373 Ill. 455, 26 N.E.2d 499.

No objection was made to her testifying on the ground that doing so would be contrary to the Juvenile Court Act. However, in the discussion which followed her self-incrimination objection, the assistant State’s Attorney stated that it was proper to call Mrs. Davis under section 60 because a dependency hearing was a civil proceeding. Her attorney asserted it was not. This colloquy, brief as it was, called into question the nature of tire proceeding and injected into the case the applicability of section 60 to such a proceeding. We will, therefore, consider this issue although it is specifically raised for the first time.

The stated purpose of the Juvenile Court Act is to secure for children subject to the Act such care and guidance, preferably in their own homes, as will serve their moral, emotional, mental and physical welfare and the

best interests of the community; to preserve and strengthen their family ties whenever possible, and to remove them from the custody of their parents only when their- welfare or safety, or the protection of the public cannot be adequately safeguarded without removal. (Ill. Rev. Stat. 1969, ch. 37, par. 701 — 2(1).) Paragraph 701 — 2(2) provides that the court may direct all proceedings so as to promptly and fully gather information bearing upon the current condition and future welfare of the persons subject to the Act, and paragraph 701 — 2(3) provides that the Act should be liberally construed to carry out its purpose. Paragraph 701 — 20 sets forth the extensive rights of all parties to the proceedings and states that the proceedings are not intended to be adversary in character.

Although proceedings under the Juvenile Court Act have long been regarded as civil in nature (In re Gault (1967), 387 U.S. 1; In re Fucini (1970), 44 Ill.2d 305, 255 N.E.2d 380) distinctions have been drawn between juvenile delinquency and dependency proceedings. This distinction is noted in the Act itself. Paragraph 704 — 6 provides that the rules of evidence in the nature of criminal proceedings are applicable to hearings pertaining to delinquent minors, whereas the rules of evidence in the nature of civil proceedings are applicable to proceedings concerning dependant and neglected children. The difference between delinquency and dependency proceedings were commented upon in In re Urbasek (1968), 38 Ill.2d 535, 232 N.E.2d 716, where the court stated that cases of dependency or neglect “may appropriately be labeled ‘civil’ proceedings both in the legal and lay sense of the word.”

While the provisions of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110) are not automatically applicable to dependency proceedings in which juveniles may be deprived of their liberty (In re Urbasek; People ex rel. Hanrahan v. Felt (1971), 48 Ill.2d 171, 269 N.E.2d 1; City of Dan-ville v. Hartshorn (1973), 53 Ill.2d 399, 292 N.E.2d 382), certain provisions of the Act are applicable to dependency proceedings and it was within the discretion of the trial court to apply the evidentiary rules of the Practice Act to the hearing in the present dependency case. The utilization of section 60 of the Act was proper to enable the State to bring out facts which otherwise it might not have been able to do.

Mrs. Davis states that “The issue of whether a parent can be called, as an adverse witness in the dependency proceeding is a unique question which has not been presented to the Supreme Court or Appellate Court of Illinois.” She argues that because of the nature of dependency proceedings and the natural and inherent rights of parents to retain custody of their children, maximum procedural safeguards should be required for the parents as well as for the children involved and that it was her constitutional right not to testify in a proceeding that sought to deprive her of her child.

The Constitutions of the United States (Fifth Amendment) and of the State of Illinois (Article I, sec. 10) state that no person shall be compelled in a criminal case to give evidence against himself. The phrase “in any criminal case” has been interpreted to mean in any case or proceeding, criminal, civil or quasi-criminal, where a persons testimony might tend to convict him of a criminal offense or subject him to fine or incarceration. People v. Olmstead (1965), 32 Ill.2d 306, 205 N.E.2d 625; Kanter v. Clerk of Circuit Court (1903), 108 Ill.App. 287; City of Chicago v. Berg (1964), 48 Ill.App.2d 251, 199 N.E.2d 49.

Compelling Mrs. Davis to testify under section 60 was not a violation of her constitutional right against self-incrimination. She was not threatened with the loss of her liberty or other punishment. After she took the stand, an objection could have been appropriately made if any question was asked which tended to incriminate her or subject her to possible prosecution for any offense. We have held that in a civil case the privilege against self-incrimination can only be raised after the witness has been sworn and can only be asserted in response to a potentially incriminating question. People ex rel. Elkin v. Rimicci (1968), 97 Ill.App.2d 470, 240 N.E.2d 195; See also, People ex rel. Keith v. Keith (1967), 38 Ill.2d 405, 231 N.E.2d 387.

The defendant has pointed to no error in the Juvenile Court trial which deprived her of a constitutional right or which requires a reversal of the finding of dependency. The judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.