text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James David Castro, Defendant-Appellant.
    (No. 54915;
    First District
    September 17, 1971.

      Rehearing denied October 15, 1971.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, (Mary CahiU and James J. Doherty, Assistant Public Defenders, of counsel,) for appeHant.
    Howard V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Michael J. Goldstein, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court.

A jury found defendant guüty of unlawfully selling a narcotic drug in violation of Ill. Rev. Stat. 1967, ch. 38, par. 22—3. He was sentenced to a term of ten to twenty years. Defendant appealed directly to the Supreme Court of Illinois pursuant to Supreme Court Rule 603 which provides for direct review of final judgments of circuit courts in cases involving a constitutional question. The Supreme Court determned that it had no jurisdiction of the case on direct appeal and transferred the case to this court. On appeal defendant contends: (1) that the trial court erred in failing to instinct the jury that knowledge is an essential element of the crime charged and (2) that the trial court erred in failing to instruct the jury on tire defense of entrapment.

The evidence presented by the State in its case in chief may be summarized. On March 29, 1968, John Peoples, a poHce officer working as an undercover agent, was introduced to defendant by Tony Spagnolli, an informer who had been used by the police in other cases. Peoples met defendant again on April 1st and on April 2nd defendant telephoned Peoples asking him “Are you ready to do business for an ounce of heroin?” Peoples rephed indicating that he would have to make some contacts in order to raise the necessary money. On the morning of April 4, 1968, defendant again telephoned Peoples saying “My connection, Pinky, is ready to do business. Could you do business with us?” A meeting was arranged for that afternoon at 31st and Halsted Streets. Peoples, with Agent Jackson from the Federal Bureau of Narcotics, drove to 31st and Halsted where defendant was awaiting their arrival. Jackson was introduced to defendant as “Jimmie Jones, the man who handles the money.” Defendant after seeing the money, as per his request, said “O.K., let’s go.” After driving around for a while, during which time defendant placed a telephone call, the trio returned to 31st and Halsted. There defendant entered a telephone booth and placed another telephone call. During this conversation the agents overheard the name “Pinky” mentioned.

Defendant returned to the car and instructed Peoples to drive to the Brown Bottle Restaurant. While en route defendant was asked whether “Pinky” was the big narcotics dealer on the west side. Defendant’s response was “Yes, he has the best heroin in town.” Upon arrival at the Brown Bottle they entered and sat in a booth. Shortly thereafter two other federal narcotics agents, Cruz and Jordan, entered and sat nearby. These agents had been following the trio in accordance with a previous arrangement with Peoples and Jackson. Defendant said “Pinky should have the stuff ready by now,” and left to make a telephone caU. Upon returning he said, “I’H be right back in a few minutes. I’m going to meet Pinky.” Defendant left the Brown Bottle and walked down the street a short distance to a point where he met “Pinky”. The two then went into a passageway between two buildings where defendant received an aluminum foil packet. Defendant then walked back to the Brown Bottle while “Pinky” went into a nearby dry cleaning shop where he was subsequently arrested. On defendant’s return to the Brown Bottle he said “I got the package.”, placed an aluminum foil packet on the table and said “I want the money.” As defendant placed his hands on the money Cruz and Jackson placed defendant under arrest. Expert testimony established the contents of the packet to be heroin.

The testimony of the defendant may be summarized. At 8:00 A.M. on April 4, 1968, Tony Spagnolli, with whom defendant worked at a cartage company, telephoned and told him that later that day, during the afternoon, he was going to repay defendant the $125 he owed to defendant. Pursuant to Spagnolli’s request defendant telephoned Peoples, who was known to defendant only as “Jay”, to tell him that Spagnolli did not have any money for Peoples. Later, defendant again telephoned Peoples. During that conversation Peoples said he would meet defendant at 31st and Plalsted Streets where, later that afternoon, defendant met Peoples and “Jimmie Jones”. They drove for a while only to return to 31st and Halsted where defendant made one of several telephone calls to his co-indictee, Lawrence Guitierez, known as “Pinky” whose telephone number was given to defendant earlier that day by Spagnolli. “Pinky” told defendant to meet him at the Brown Bottle but did not say why. Defendant, “Jay” and “Jimmie Jones” proceeded to the Brown Bottle where defendant again telephoned “Pinky” who told defendant to meet him on the street. Defendant left the Brown Bottle, met “Pinky” and asked for his money. “Pinky” said defendant should take a package to Peoples and get the money from him. Defendant asked what was in the package but “Pinky” would not tell him. Defendant returned to the Brown Bottle where, after placing the packet on the table, he was arrested. He never saw the money. Defendant knew “Pinky” for two and one half years, but did not know of this narcotics dealings nor did defendant sell narcotics to Peoples on previous occasions or talk of narcotics with Peoples on April 4,1968.

The State, in rebuttal, presented further testimony by Peoples that on two previous occasions, March 29, 1968, and April 1, 1968, he purchased heroin from defendant. Both sales were suggested by defendant and after the conclusion of the second sale defendant suggested a third, larger sale. “Pinky” was to be the supplier of the heroin for this third sale.

In surrebuttal defendant testified that on March 29, 1968, he received $100 from Spagnolli in partial payment of a $300 debt. At that time Peoples was nearby. On April 1, 1968, defendant received from Spagnolli an additional $75 also in partial repayment of the debt. Peoples was present at this exchange also. Defendant denied that on either March 29 or April 1, 1968, he had transferred a packet to anyone or sold any narcotics.

Opinion

We agree with defendant’s first contention that the trial court erred in failing to instruct the jury that knowledge on the part of defendant was an essential element of the offense charge.

Both the State and defense concede that proof of knowledge beyond a reasonable doubt is a requirement for conviction for unlawful sale of narcotics. (See footnote 1, supra); cf. People v. Galloway (1963), 28 Ill.2d 355, 358. They differ, however, as to whether or not the jury should have been instructed that it must find defendant had knowledge of the nature of the substance contained in the packet in order to convict him. This corut has stated previously in People v. Lewis (1969), 112 Ill.App.2d, 1, 11 that:

“It was a fundamental responsibility of the court to see to it that the jury not be permitted to deliberate defendant’s guilt or innocence of the crime charged without being told the essential characteristics of that crime.”

The trial court may not allow the jury to conduct its deliberation in an atmosphere of conjecture and speculation as to what act or acts constitute the crime charged. See People v. Davis (1966), 74 Ill.App.2d 450, 456.

The State urges us to follow the decision in People v. Truelock (1966), 35 Ill.2d 189 and the cases following it. The reasoning of those decisions, however, is not appropriate in the instant case. In each of those cases it was uncontroverted that defendant had knowledge of the nature of the substance in his possession. The Supreme Court held in Truelock that although the trial court erred in failing to instruct the jury that knowledge on the part of defendant is essential to a finding of guilty for unlawful possession of a narcotic drug, that error was not grounds for reversal because “the evidence of defendant’s guilt was so clear and convincing that the jury could not reasonably have found him not guilty.” In the present case, however, the evidence concerning defendant’s mental state is not of such a clear and convincing character.

A comparison of the evidence produced by the prosecution and the defense reveals that the major fact question raised by the defense, which the jury had to decide, was whether or not defendant knew the nature of the substance in the packet. The State placed in evidence many statements by defendant wherein he mentioned “heroin” in reference to the package he delivered to Peoples on April 4, 1968. The State also presented evidence purporting to show that on previous occasions defendant sold heroin to Peoples. Defense evidence on the other hand presented a picture of defendant as a delivery man not knowing the nature of the contents of the packet he was to deliver, and only being interested in collecting the $125 due him in payment of a debt. Thus, defendant’s knowledge of the nature of the contents of the packet was clearly a question of fact for the jury and it was within the province of the jury to determine the credibility of the witnesses in deciding that issue. Hie police witness testified to previous knowledgeable heroin transactions with defendant, but these were denied by defendant, and there is no indication that prosecutions were ever initiated in regard thereto. The jury therefore should have been given an instruction covering all elements of the crime, including knowledge, and failure thereof was error on the part of the trial court. By the only instruction given as to the elements of the crime the court, in effect, impermissibly instructed the jury to find against defendant on the major issue raised in his defense.

We cannot conclude beyond a reasonable doubt that the court’s error in this regard could not have contributed to the result, and this we would have to do under the command of Chapman v. California (1967), 386 U.S. 18, 22 and subsequent cases which lay down the limits of the harmless error doctrine. We must therefore reverse the conviction of defendant and remand the cause for a new trial.

Although our decision in this case makes it unnecessary for us to consider the other contention raised by defendant; it is appropriate, however, to point out another error in the instructions. The State’s instruction number one (See footnote 2, supra) allowed the jury to determine what persons are authorized by law to sell narcotic drugs. This was held improper in People v. Lewis (1969), 112 Ill.App.2d 1, 11 and should be avoided on retrial of this case.

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

Reversed and remanded.

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

       This statute provides:
      It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act.
      The Illinois Criminal Code also states in Ill. Rev. Stat. 1967, ch. 38, par. 4 —3(a):
      A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4—4 through 4—7.
      The Code, in par. 4 — 5, goes on to define “knowledge”:
      A person knows, or acts knowingly or with knowledge of:
      (a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.

       The only instructions as to the substantive nature of the crime were tendered by the State. They read as follows:
      State’s instruction number 1, given as modified:
      The Court instructs the jury that it is unlawful for any person not authorized by law to sell any narcotic drug.
      State’s instruction number 2, given over objection:
      This Court instructs the jury that under Chapter 38, Section 22-2-11 of the Illinois Revised Statute, 1967, “Sale” means and includes traffic in, barter, exchange, or gift, or offer therefor, and such transaction made by any person whether as principal, proprietor, broker, agent, servant or employee.

       The defendant in Truelock made several incriminating remarks admitting that he knew of the presence of heroin in the apartment in which he was arrested. He also was in no position to deny knowledge of the contents of a tinfoil package found on his person or other heroin found in his apartment because the arresting officers observed him sitting at a table mixing white powder.


source: Caselaw Access Project

author: Mr. JUSTICE JONES EBERSPAGHER, P. J„

license: Public Domain

text:
    Malkov Lumber Company, Inc., Plaintiff-Appellant, v. Serafine Builders, Inc., Defendant-Appellant—(Marshall Savings and Loan Association, et al., Appellees.)
    (No. 53803;
    First District
    August 6, 1971.

      Rehearing denied September 29,1971.

      Eberspacher, P. J., dissenting.
    Louis A. Rosenthal, of Chicago, for plaintiff-appellant.
    John Demling, of Chicago, (Fredric G. Novy, of counsel,) for defendant-appellant.
    William D. Ward, of Chicago, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

This is an appeal by plaintiff, Maikov Lumber Company, Inc., hereinafter called Maikov, and by Serafine Builders, Inc., hereinafter called Serafine, from an order dismissing their complaint and counterclaim, respectively, for foreclosure of mechnics’ liens upon the motion of Marshall Savings and Loan Association, John R. Henson, receiver and Donald D. Swope, receiver, collectively hereinafter called Marshall. Subject to the same order of dismissal was the separate complaint for foreclosure of a mechanic’s lien filed by Edmeir, Inc., hereinafter called Edmeir, but Edmeir did not appeal.

Maikov, as a subcontractor of Serafine, filed its complaint, numbered 66-CH-3466, to foreclose a mechanic’s lien against certain property of Marshall in June 1966. Named as parties defendant to this complaint were Serafine and Marshall. Marshall filed an appearance in this case in July 1966. Edmeir, another subcontractor of Serafine, filed its complaint, numbered 67-CH-1814, to foreclose a mechanic’s lien in February 1967. Named as parties defendant to the Edmeir complaint were Serafine and Marshall. Marshall filed an appearance in this latter case in March 1967. Serafine, a defendant in both foreclosure actions, appeared in Edmeir’s case, 67-CH-1814, and filed its motion for consolidation of that case with case number 66-CH-3466 commenced by Maikov. Pursuant to this motion the court consolidated the Edmeir case with and into the Maikov case, as number 66-CH-3466. On April 24, 1967 Serafine filed its answer and a counter-claim for foreclosure of a mechanic’s lien. Named as party defendant to Serafine’s counter-claim was Marshall.

From the complaint of Serafine it appears that Serafine and Marshall entered into an agreement dated March 1, 1965 under which Serafine was to construct a building on the concerned real estate, commonly known as Sahara Towers, for an agreed sum of $324,405.00; that the labor and material required by the contract was furnished by Serafine and accepted and paid for by Marshall; that during the course of compliance with the contract there were certain additional contracts between the parties for construction of a cocktail lounge and conversion of the sixth floor to individual living quarters; and that the sums agreed to by the parties for these extras had not been paid for and by reason thereof Serafine prayed that it be decreed to be entitled to a mechanic’s lien and for foreclosure thereof.

After some unexplained delay and a rule upon them to plead, on September 15, 1967, Marshall filed motions based on Supreme Court Rule 48 (1) (e). (Ill. Rev. Stat., ch. 110, par. 48 (1) (e)) to dismiss the complaint of Maikov and the counter-claim of Serafine. The motions were based upon the failure of Maikov and Serafine to join as defendants or otherwise necessary parties claiming an interest in the premises sought to be foreclosed on prior to the tolling of the two year period of limitations provided in section 9 of the Mechanic’s Lien Act. (Ill. Rev. Stat., ch. 82, par. 9.) Alternatively, the motions alleged the failure of Maikov and Serafine to intervene in mechanic’s hen foreclosure suits previously pending in the same court against the subject premises during the two year limitation period available to Maikov and Serafine to commence foreclosure of their hens. Attached to the motions was the affidavit of an attorney for Marshall stating that an examination of the records of the court and the records of Chicago Title and Trust Company revealed the names of the following who claimed an interest in the real estate involved in the cause:

(A) Edmeir, Inc., pursuant to a mechanic’s hen claim filed with the Recorder of Deeds of Cook County and involved in an action pending the court entitled Edmeir, Inc. v. Marshall Savings and Loan Association number 64-CH-5280 which has been referred to Master McGah;
(B) All Style Iron Products, Inc., pursuant to a mechanic’s hen claim filed with the Recorder of Deeds of Cook County and involved in an action pending in the court entitled All Style Iron Products, Inc., v. Exchange National Bank, et al, 64-CH-2271, which has been referred to Master McGah;
(C) David Schiff, pursuant to a mechanic’s hen claim filed with the Recorder of Deeds of Cook County and involved in the action referred to in Paragraph (B);
(D) Edward Hines Lumber Company pursuant to a mechanic’s hen claim filed with the Recorder of Deeds of Cook County and also involved in the action identified in Paragraph (B) above.

The instant case was assigned to Judge Lupe. On August 9, 1968, the attorney for Maikov appeared before Judge Covelli (Judge Lupe apparently being unavailable that day) and obtained an order consolidating their case, 66-CH-3466, with the previously pending cases, numbers 64-CH-5280 and 64-CH-2271. The order recited that the consolidation of the cases “shall be without prejudice to the matters raised in briefs of the parties pending before the court.” Those “matters” were the failure of Maikov and Serafine to join as defendants in their complaint and counter-claim all parties interested in the premises within the two year period of limitation. On August 26, 1968 Serafine and Maikov filed a joint motion to strike the motion of Marshall to dismiss their complaint and counter-claim on the grounds that the order of August 9, 1968 consolidating their case with numbers 64-CH-5280 and 64-CH-2271 rendered the issue presented to the court in Marshall’s motion moot. On September 26, 1968 Judge Lupe entered an order vacating the order of consolidation entered by Judge Covelli and serving case 66-CH-3466 from cases 64-CH-2271 and 64-CH-5280. On December 5, 1968, after argument and consideration of briefs, the court entered the order which is the subject of this appeal, granting the motions of Marshall to dismiss the complaint of Maikov, the counterclaim of Serafine and the complaint of Edmeir, in effect denying their claim to mechanics’ hens. The order further granted Maikov, Serafine and Edmeir twenty-eight days to file amended complaints at law and ordered the case transferred from the chancery division to the law division of the circuit court of Cook County.

Section 9 of the Mechanic’s Lien Act provides in part that suit shall be commenced or answer filed within two years after the completion of the contract or completion of the extra or additional work, or furnishing of extra or additional material thereunder. Section 11 of the Act provides in part that a plaintiff in a mechanic’s hen complaint shall make all parties interested, of whose interest he is notified or has knowledge, a party defendant to the proceeding. The same rule is made to apply in the case of cross-petitioners with regard to any person of whose interest they have knowledge, and who are not already parties to the suit or action. “Parties in interest” within the meaning of the statute are described as persons entitled to hens under the Act whose claims are not, as well as are, due at the time of the commencement of the suit, all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a hen is asserted, or persons who are interested in the subject matter of the suit. Section 11 further provides that any such interested persons may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment.

Defendants maintain that sections 9 and 11 of the Act and the case of Granquist v. Western Tube Co., 240 Ill. 132, 88 N.E. 468 (1909), conjoined with North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 129 N.E. 273 (1920), justify the action of the trial court and require affirmance on this appeal. The Granquist case was an interpretation of the requirement of section 11 that all persons interested in the concerned premises be made a party to any complaint or cross-complaint for foreclosure of a mechanic’s lien. Granquist had filed a petition for mechanic’s lien alleging facts showing his own entitlement thereto and stating, upon information and belief, that the firm of Porter & Trask also had or claimed a lien upon the same premises for materials furnished and averring that their lien, if any, was subject to the lien of Granquist. Porter & Trask were not made parties to the Granquist action but had commenced their own suit for foreclosure of their mechanic’s lien. (Cf. Porter & Trask v. Western Tube Co., 240 Ill. 151, 88 N.E. 472). Porter & Trask did not make Granquist a party to their case. In both cases the owner of the premises objected to proceeding for want of proper parties. Both Granquist and Porter & Trask, in their respective cases, contended the question of proper parties had been waived. In both cases decrees were entered granting liens as prayed and the Appellate Court affirmed. Upon appeal to the Supreme Court both cases were reversed. The court commented: “The case at bar illustrates the practice that would prevail if appellee's contention were sustained. Here appellee filed his bill and Porter & Trask filed another. There were two hearings in the circuit court, two decrees entered on the same day, two appeals to the Appellate Court, and both cases have been appealed to this court. If two claimants for liens can thus carry on separate suits, any number who happen to be sub-contractors might do the same thing. The statute in relation to liens, under which these petitions are filed, gives no sanction to such practice.” The oft quoted and, as far as our search discloses, uniformly followed, holding of that case is “* * * that the legislature never contemplated there should be a separate suit by each contractor or sub-contractor for the purpose of having a lien established in his favor, but that the statute contemplates but one suit, and that all persons who are known to have any interest, either legal or equitable, in the land, or any claim for a lien against it, should be joined, either as complainants or defendants, in such suit, so that the court will be able to adjust all equities and render a decree in relation to the distribution of the proceeds, in case a sale is had, according to the rights of the several claim ants. If appellee’s position is sustained it is easy to see how the owner may be harassed with numerous suits for liens, thereby unnecessarily increasing the costs and expenses to the owner and imposing a large amount of unnecessary litigation upon the courts.”

The North Side Sash & Door Co. case dealt with the failure of a complaint for foreclosure of a mechanic’s lien to state a cause of action within the two year period of limitations contained in the statute. The original complaint was filed within the two year period of limitations but failed to state a cause of action in not alleging that the last defivery of material was made within four months before the fifing of the complaint. In holding that an amendment made after the period of limitation had expired changing the date of the last defivery to a time within the four month period amounted to the filing of a new suit, the court stated: “The time fixed for commencing an action under the Mechanic’s Lien act is a condition of the liability and operates as a limitation of the liability itself and not of the remedy, alone. The provision of the statute creating the lien, requiring suit to be brought within four months, is more than an ordinary statute of limitations. It goes to the existence of the right itself. It is a condition attached to the right to sue at all. It is a condition precedent to the right of recovery granted by the act that the action be brought within four months after the date of the last defivery of materials. Inasmuch, therefore, as the limitation of the time in which to sue is considered not merely of the remedy but of the right of action itself, and the cause of action exists subject to the limitation, the bill must allege or state facts showing that the action is brought within the time prescribed by the statute.”

The Mechanic’s Lien Act is in derogation of common law and it has been frequently held that it must be strictly construed notwithstanding the provisions of section 39 of that Act that it is to be liberally construed as a remedial Act. D. D. Kennedy, Inc. v. Lake Petersburg Ass’n., 54 Ill.App.2d 85, 203 N.E.2d 145; Erickson v. Ginocchio, 303 Ill.App. 159, 24 N.E.2d 884; Charles A. Hohmeier Lumber Co. v. Knight, 350 Ill. 248, 182 N.E. 715. But such construction properly has reference to compliance with the substantive provisions of the Act — those which specify the requirements upon which the right to a lien is based. Charles A. Hohmeier Lumber Co. v. Knight, supra; Fitzgerald v. Van Buskirk, 96 Ill.App.2d 432, 239 N.E.2d 330.

It is conceded that if the two year period of limitations provided by section 9 of the Act had not expired on plaintiffs’ lien claims that plaintiffs could amend their complaints to add omitted parties or could move to consolidate the several pending cases for foreclosure of liens. However, the limitation period having expired without such amendment or consoHdation defendants’ claim that plaintiffs’ failure to join all parties in interest, or to obtain consolidation of aU pending cases, within the two year period is fatal to the plaintiffs’ claims for foreclosure and that they are now relegated to the status of an ordinary creditor with the prospect of a suit for debt. However, defendants’ argument and their citation of the North Side Sash & Door Co. case overlooks the signal fact that all parties interested in the premises, as defined in section 11 of the Act, are before the court and their respective rights and claims are subject to adjudication by the court, Maikov, Edmeir, Serafine and MarshaU in the present case, and the other parties in interest, Edmeir, Inc., AU Style Iron Products, Inc., David Schiff and Edward Hines Lumber Company, as parties in the earlier cases for foreclosure of mechanics’ liens. Should, then, plaintiffs’ complaints for foreclosure of their mechanics’ Hens be dismissed and their rights to a Hen against the premises lost, or should they be granted leave to move for consoHdation of the pending cases? We think the better rule to be that plaintiffs should be granted leave to move to consoHdate aU suits pending for foreclosure of mechanics’ Hens against the concerned premises and that such consoHdation is authorized by section 51 of the Civil Practice Act. This result will not only better serve the ends of justice and equity but is the required interpretation of the purpose and intent of the Mechanic’s Lien Act.

In making the provision for joining aU parties interested in the premises parties defendant apply to cross-petitioners as weU as to petitioners, section 11 of the Act expressly contemplates that there may be multiple suits for foreclosure of a mechanic’s lien commenced. A review of the cases indicates that this is, indeed, a common practice. The record in this case discloses that there were no less than four separate actions commenced for the foreclosure of seven separate Hens. While the record is incomplete as to the details of aU contracts and Hen claims involved it is obvious that they arose out of a time spread of over two years and possibly out of separate prime contracts. It can be readily seen that in large construction projects involving multiple contracts and prime contractors and many subcontractors the most exacting efforts would be required of any petitioner for foreclosure of its mechanic’s Hen to determine with certainty who would constitute aH parties interested in the premises. While the lack of diHgence upon the part of such petitioner can never be excused it is nonetheless understandable that confusion, misunderstanding and uncertainty can arise. This is demonstrated by the fact that one of the parties to the case here on appeal, Edmeir, was also a party plaintiff in one of the earHer cases, thus being in the position of filing two separate Hens (apparently arising out of separate prime contracts) and a petition for their foreclosure in two separate cases, all involving the same premises. In that circumstance Edmeir finds itself in the curious, even anomalous, position of having its complaint for foreclosure of a mechanic’s hen dismissed because of its failure to make itself a party defendant to its own lawsuit.

Section 12 of the Mechanic’s Lien Act provides that the court shall permit amendments to any part of the pleadings, and make all orders requiring parties to appear that are or may be authorized in other civil actions and shall have the same power and jurisdiction of the parties and subject matter, and directs that the rules of practice and procedure shall be the same in other civil cases except as otherwise provided in the Act. The Act does not “otherwise provide” that where all parties interested in the premises are before the court, but not joined in one consolidated case, the complaints deficient in parties shall be dismissed. Accordingly, the rules of practice and procedure followed in other civil cases are to apply. This, then, is an instance alluded to in section 1 of the Civil Practice Act that makes that Act applicable to those proceedings in which matters of procedure are not regulated by separate statutes. Fitzgerald v. Van Buskirk, supra. We hold that section 51 of the Civil Practice Act applies to this case and that it was an abuse of discretion for the trial court to refuse consolidation of the pending cases for foreclosure of mechanics’ liens under the circumstances presented here. Section 51 of the Civil Practice Act provides: “An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right.”

We think that equity and justice require this result in order to prevent the loss of a legitimate claim for a lien through an overly technical construction of procedure and pleadings; further, that this result is required by section 39 of the Mechanic’s Lien Act which calls for liberal construction of the Act as a remedial Act. Such construction is not contrary to those cases calling for strict construction of the Act with respect to those requirements upon which the right to a lien depend.

Presenting considerable similarity of facts and conclusion to this case is the case of Park Ave. Lumber & Supply Co. v. Nils A. Nofverberg, Inc., 76 Ill.App.2d 334, 222 N.E.2d 49 (1966). There the plaintiff filed a complaint for mechanic’s lien in connection with the construction of certain buildings naming as defendants the Exchange National Bank, trustee, Marshall Savings & Loan Association as mortgagee, Shapiro and Boyansky, general contractors, Nils A. Hofverberg, Inc., the appellee, and a number of other defendants alleged to have had claims for mechanics’ hens. Hofverberg, Inc. was held in default upon the entry of a decree for foreclosure and was barred in making any further claim “in this or any further proceeding for any alleged mechanic’s lien or liens or for any claim for moneys alleged to be due by reason of furnishing any work, labor or material to the premises aforedescribed.” Over thirty days after the decree was entered Hofverberg, Inc. filed its petition under section 72 of the Civil Practice Act alleging, in part, that at the time the decree was entered, on December 30, 1964, there was pending in the same court, a mechanic’s lien foreclosure suit brought by Hofverberg, Inc. against Shapiro and Boyansky as general contractors, and that the defendants in the section 72 proceeding had been personally served with summons in the Hofverberg foreclosure action and were obliged to aprise the court of the pendency of the other litigation. In the order entered in the section 72 proceeding the court found that the complaint in the mechanic’s lien proceeding contained no allegation that Hofverberg, Inc. claims a lien on the premises and no issue was presented on that point; that the decree purports to grant affirmative relief in favor of other defaulted parties against Hofverberg, Inc. although Hofverberg, Inc. received no notice of the fact that any affirmative relief would be sought. The order vacated and set aside that portion of the decree in the mechanic’s lien suit which barred Hofverberg, Inc. from asserting its claim for mechanic’s lien or for moneys due in connection with the premises involved. The defendants to the section 72 proceeding (who were the plaintiffs in the original mechanic’s lien foreclosure case) had contended, among other things, that the Mechanic’s Lien Act contemplates that there should be but one suit and that all persons known to the plaintiff to have any legal or equitable claim should be made parties thereto. In disposing of this point the court remarked that there is no question but that this is a general policy with respect to mechanic’s lien suits but that does not mean that the general rules relating to equity practice and procedure do not apply. Defendant’s reliance upon the Granquist case was noted, the court stating that the case holds that all known lien claimants must be made parties to a mechanic’s lien proceeding and that separate lien proceedings pending at the same time must be consolidated. (Emphasis supplied.) The court then found that the defendants to the section 72 proceeding did not make a bona fide attempt to bring all the interested parties before the court for a single adjudication in the case wherein they were plaintiffs. The same counsel represented Exchange Bank, trustee, Marshall Savings & Loan, the mortgagee, and Shapiro and Boyansky, the general contractors. Although the identity of the holder of the beneficial interest in the real estate, a genuine party in interest, must have been known to the appellants, they did not disclose his identity nor attempt to bring him before the court. “Counsel for appellants did not disclose to the court before the decree was entered that Hofverberg, Inc. had instituted a suit for a mechanics lien in the same court. If they had, the two suits would have been consolidated. They withheld from the court information which in our opinion should have been disclosed. It was they who frustrated the policy of the Mechanics Lien Act.” [Emphasis supplied.] It was pointed out that the general contractors and the others were served with summons in the suit brought by Hofverberg, Inc. prior to the entry of the December 30, 1964 decree and that thirty days were allowed to pass after that decree before the plaintiffs there moved for dismissal of the suit brought by Hofverberg, Inc.

Here, the lienee-owner, with knowledge of the previously pending cases for foreclosure of mechanics’ liens, upon being served with summons in the Maikov and Edmeir cases, filed only an entry of appearance. After a delay of approximately fourteen months, and the tolling of the two-year period of limitations specified in section 9 of the Act, and after numerous rules on them to plead, the lienee-owner then filed a motion to dismiss based upon plaintiffs’ failure to join the parties to the previously pending actions. It is thus evident, as the court remarked in Hofverberg, that Marshall, the lienee-owner, did not make a bona fide attempt to bring all the interested parties before the corn! for a single adjudication. If they had, the two suits would have been consolidated. They withheld from the court information which in our opinion should have been disclosed. It was they who frustrated the policy of the Mechanic’s Lien Act. We think the proper procedure to be followed by Marshall in this case would be that provided by section 30 of the Act which establishes a general settlement procedure to be followed by the owner or any person having a lien against the premises; that they should have made a full and timely disclosure to the court of all known lien claims and pending lien foreclosure suits. Such procedure would have prevented the inequity apparent here and furthered the policy of the Act by permitting full and complete adjudication of all claims for hens pertaining to the concerned premises.

Other cases augment the result we have reached. In the Granquist case itself where the Supreme Court held that it was error for the circuit court to enter a final decree without having all necessary parties before the court the case was not reversed outright but was remanded for the purpose of joining the necessary parties. In Bingaman v. Dahm, 307 Ill.App. 432, 30 N.E.2d 509 (1940) a decree foreclosing a mechanic’s hen was entered pursuant to a report of a Master in Chancery. Defendants had filed an answer to the complaint for foreclosure which did not assert that there were other parties in interest and there was nothing in the record to show other interests and claims until exhibits were introduced by defendants. No question of omitted parties was raised at the hearing but was raised for the first time in the objections to the Master’s report. At the time of the filing of such objections and at the time of the entry of the decree more than two years had expired from the time plaintiffs had furnished their last material. Defendants contended that since other claims for hens were on file at the time the suit was filed and plaintiffs failed to join them as parties defendant, under the authority of the Granquist case such failure was fatal to their right to maintain their action to foreclose. The court commented upon the requirement of the Granquist case and noted that there was no showing that there were any unpaid lien claimants at the time the issue was raised by the defendants. The court then held: “* * * unless a showing is made that, at the time objection is taken to a lack of necessary parties in an action to foreclose a mechanic’s lien, such omitted party or parties, or unpaid claimants, or persons whose rights might be adversely affected in the proceeding, actually have some substantial interest in participating in the proceeding, or would be benefited if made a party at such time, the objection as to nonjoinder cannot be maintained. The lien claimants must be unpaid at the time objection is made so that the requirement of adding such persons as parties defendant will operate to give added protection to a defendant, as well as to the omitted parties.”

The record in this case gives no indication of any attempt whatsoever upon the part of Marshall to show that the liens embodied in the previously filed suits remained viable.

Also see Henry DeCicco & Co. v. Drucker, 101 Ill.App.2d 340, 243 N.E.2d 456; Leffers v. Hayes, 327 Ill.App. 440, 64 N.E.2d 768; Herbert Boiler Co. v. Lewis, 185 Ill.App. 384; Love, Mechanics’ Liens in Illinois, section 86.

MarshaH refies on Anderson v. Gousett, 60 Ill.App.2d 309, 208 N.E.2d 37 in which it was held that the wife of the defendant-owner was a necessary party to a mechanic’s lien foreclosure action and could not be added as a party defendant after the expiration of the two-year period of limitations absent a showing of compliance with section 46 (4) of the Civil Practice Act. In reaching its decision the comt stated the problem to be not simply one of allowing amendment, but whether a party defendant can be thereby deprived of the defense of the Statute of Limitations. Reliance was placed on Nupnau v. Hink, 53 Ill.App .2d 81, 203 N.E.2d 63, a will contest case, the conclusions of which were deemed applicable to mechanic’s lien cases. In Nupnau certain beneficiaries brought suit to contest a will within the required nine month period of limitations. About six heirs of the decedent were not made parties to the suit. After the nine month period had expired defendants moved to dismiss for failure to join all necessary parties. The trial court dismissed the suit and the appellate court affirmed. However, upon appeal to the Supreme Court the case was reversed, Nupnau v. Hink, 33 Ill.2d 285, 211 N.E.2d 379, holding that plaintiffs should be permitted to amend so as to include all necessary parties. In Muehlfelt v. Vlcek, 112 Ill.App.2d 190, 250 N.E.2d 14 a mechanic’s lien foreclosure suit was commenced without naming a mortgagee’s assignee of record a party defendant. After the two-year period of limitations had expired the plaintiff sought to add the assignee as a party defendant and subordinate the mortgage to the lien. The trial court declined to allow the amendment, providing in its order that as to the mortgage the lien was “postponed.” In affirming the trial court’s action the appellate court declines to follow the Supreme Court’s Nupnau decision apparently on the grounds that there the omitted heirs had nothing to lose by plaintiff’s efforts to set aside the will and the failure to name them as parties defendant had no practical effect on their interest, whereas in a mechanic’s lien foreclosure the claimant seeks to subordinate the interest of all other lienholders properly brought before the court to the interest of his lien.

It would needlessly prolong this opinion to consider the Anderson and Muehlfelt cases and the effect of Nupnau since both Anderson and Muehlfelt were concerned with the failure to bring interested parties before the court within the two year period of limitations and are thus distinguished from this case where all parties were in fact before the court and their several claims presented for adjustment within the prescribed time. But we would make the observation that the rationale of the Supreme Court’s Nupnau decision serves as authority for the result reached here.

Finally, to permit consoHdation of all pending cases and claims wiH not be in derogation of the rights of others for aU rights, claims and equities of the several parties claimant may be protected under section 9 of the Mechanic’s Lien Act which provides that: “* * * The plaintiff or petitioner, and all defendants to such complaint or petition may contest each other’s right without any formal issue of record made up between them other than that shown upon the original complaint or petition, as well with respect to the amount due as to the right to the benefit of the Hen claimed * s

The order of the trial court vacating the order of consoHdation and severing case 66-CH-3466 from cases 64-CH-2271 and 64-CH-5280 is reversed and this cause remanded with directions to proceed in conformity with this opinion.

Reversed and remanded.

MORAN, J., concurs.

EBERSPAGHER, P. J„

dissenting:

I do not agree that consolidation of the numerous claims under the Mechanic’s Lien Act, after the time limitation of that Act as set forth in section 9 of the Lien Act has passed, is authorized by section 51 of the Civil Practice Act, which authorizes consolidation “whenever it can be done without prejudice to a substantial right”. To so hold ignores the numerous holdings that the time fixed for commencing an action under the Lien Act is a condition of liability itself, and not of the remedy alone. North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 129 N.E.2d 273. Muehlfelt v. Ulcek, 112 Ill.App.2d 190 @ 193, 250 N.E.2d 14; Anderson v. Goussett, 60 Ill.App. 309, 208 N.E.2d 37. These holdings make it clear that failure to file a complaint in conformance with section 11 of the Act, or failing to bring the proper parties in within the limitation of section 9, involves something substantive, rather than a procedural question.

In Grandquist v. Western Tube Co., 240 Ill. 132, 88 N.E. 468 our Supreme Court considered the language of section 11 and stated: “When the language * * * is considered in connection with other provisions of the act giving the court general power to adjust all conflicting claims to the property and adjusting the equities between the several persons holding or claiming liens therein, we are forced to the conclusion that the Legislature never contemplated there would be separate suit by each contractor or sub-contractor for the purpose of having a lien established in his favor, but that the statute contemplates but one suit, and that all persons who are known to have any interest either legal or equitable, in the land, or any claim for a lien against it, should be joined, either as complainants or defendants, in such suit, so that the court will be able to adjust all equities and render a decree in relation to the distribution of the proceeds, in case a sale is had, according to the rights of the several documents. If appellee’s position is sustained, it is easy to see how the owner may be harrassed with numerous suits for liens, thereby unnecessarily increasing the costs and expenses to the owner and imposing a large amount of unnecessary litigation upon the courts.”

Our Supreme Court has never seen fit to modify the holdings in either North Side Sash and Door, Grandquist, nor the Appellate cases cited. While the Grandquist case was remanded for joinder of proper parties, it is quite clear from the opinion that dismissal for non-joinder was not raised in the lower court in that case.

I do not consider that the reversal by the Supreme Court of Nupnau v. Hink (1965), 33 Ill.2d 285, 211 N.E.2d 379, has any relevance to the matter under consideration in Anderson v. Gousett, and both the Second District and this First District has declined to follow Nupnau in subsequent lien cases while relying on Anderson v. Goussett. See Muehlfelt v. Ulcek, 112 Ill. App.2d 190, 250 N.E.2d 14 (2nd Dist, 1969); and Rochelle Building Co., Inc., v. Oak Park Trust & Savings Bank, 121 Ill.App.2d 274, 257 N.E.2d 542 (1st Dist., 1970) in which a subcontractor who had been named defendant in a foreclosure suit commenced within the two year limitation failed to file his counterclaim within that period; in holding the subcontractor, who like the various claimants here had been made a party to another proceeding before the same court and his claim stated within the two pear period, had lost his right to a mechanic’s lien. In so holding reliance was placed on the Anderson, North Side Sash 6- Door and Muehlfelt cases.

The case of Park Ave. Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76 Ill.App.2d 334, 222 N.E.2d 49 (1986) is factually not comparable to the present case, and it is quite clear from the Court’s own language in that case that there in the original action Hofverberg, Inc. was defaulted and relief was granted against Hofverberg, Inc. that was not prayed for in the original action. From such holding Hofverberg, Inc. petitioned under section 72 of the Civil Practice Act, and the order granting the affirmative relief against Hofverberg, Inc. was vacated. This court in that opinion, made clear by its own language early in the opinion, what the issue was when at 76 Ill.App.2d 337 it said: “The principal issue is whether it is proper in a proceeding under Sec. 72 to modify a decree which has granted relief against a defaulted defendant far beyond that prayed for in the complaint.”

Counsel for applicants in that case were held to have a duty to disclose Hofverberg, Inc.’s interests and status in the court because they proposed and submitted the decree both defaulting Hofverberg, Inc., as well as some of their own clients, and granting relief against Hofverberg, Inc. which was not prayed for in the complaint.

In the present case, counsel made known to the court, by affidavit, the interests and claims of the various parties, and their conduct in a direct attack in the proceedings is not comparable to the conduct of counsel, or the factual situation presented in the Park Ave. case on which the majority relies.

Here the Receiver-Defendants had the fundamental obligation to protect the assets of Marshall Savings and Loan Association for the benefit of the innocent depositors of the Association, and such a fiduciary obligation obviously does not include their doing what the Lien Act provides claimants should do if they wish to claim liens.

As a result I conclude that the fib eral provisions of our Practice Act for consolidation do not purport to authorize consolidation that would be effective as against a plea of limitation from the beginning of the original suit and should not be allowed to be exercised to deprive a defendant of that defense, and that the trial court was correct in vacating the consolidation order, which had been entered in his absence on a motion made after the limitation had expired, and which was entered “without prejudice of the matters raised in the briefs of the parties now pending before this Court”. The matters raised in the briefs referred to, concerned the question of dismissal raised by the motion to dismiss supported by the uncontradicted affidavit, on the basis that necessary parties had not been joined during the two year period.

Defendants possessed no knowledge that was not readily available to the claimants, and the Lien Act requires claimants to take the initiative in bringing the necessary parties into the action, and under the strict construction required in substantial matters the Act should not be said to place the burden of taking the initiative on those whose fundamental obligation is to protect the assets of the owner for the benefit of innocent depositors.

Claimants did not join all necessary parties nor did they intervene in a suit already filed which joined all necessary parties within the time period, and are hardly in a position to urge that defendants should have done, what they failed to do and what the Act requires them to do. I know of no holding, and none is cited, to the effect that a proceeding to foreclose a lien is not an adversary proceeding. I would therefore affirm.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    Donald Scheffki, Plaintiff-Appellee, v. The Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Defendant-Appellant.
    (No. 53961;
    First District
    August 31, 1971.

      Reedy, McDonnel & Summers, of Chicago, (Thomas J. McDonnell, of counsel,) for appellant.
    Harold A. Liebenson and Harry J. Director, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is from an order which set aside a release and from an $85,000 judgment entered against the defendant. Two issues are presented. 1. Whether the evidence supports the order. 2. Whether the jury was properly instructed concerning the law regarding trespassers. A summary of the facts is necessary for an understanding of the issues.

On AprH 23, 1954, plaintiff, Donald Scheffki, then twelve years of age, and another boy, climbed the elevated embankment of defendant’s railroad tracks at Bloomingdale and Marshfield Avenues in Chicago. While attempting to “flip” a boxcar in the middle of a moving train of freight, plaintiff slipped, fell and the train passed over his legs, causing severe injuries. He was taken to a hospital where both legs were amputated above the knees. June 4, 1954, plaintiffs father, Clement J. Scheffki, as plaintiff’s guardian, for the sum of $15,000 in full settlement, executed a release discharging the defendant “[o]f and from all claims and demands whatsoever, “ * *” which the plaintiff had or may thereafter have for the injuries he received on April 23, 1954. The settlement was approved by the probate court of Cook County on the application of Clement Scheffki, pleadings and papers having been prepared by a lawyer selected and paid by the defendant.

Having attained his majority, plaintiff, on August 27, 1963, filed a three-count complaint alleging causes of action at law for damages in the sum of $400,000. In Count I, plaintiff alleged that the release which his father gave the defendant was obtained through a lawyer who was hired and paid by the defendant; that he now being an adult, disavowed and disaffirmed the release because it was “[pjrocured by a fraud upon the plaintiff and upon the probate court # Plaintiff invoked the court’s chancery jurisdiction, praying that the settlement made by his father be adjudged void and of no effect, and that the release be set aside. The trial court first heard Count I.

Clement Scheffki testified that he was a man with an eighth grade education. He said that two employees of the defendant visited him while his son was in the hospital and told him that they had heard of cases where defendant paid $5,000 and $10,000 for cases like the plaintiff’s. Scheffki said that the two employees cautioned him not to get a lawyer because if he did, defendant would not have anything to do with him. He went on to testify that a short time after plaintiff was released from the hospital, a claims adjuster for tire defendant telephoned him and told him to come and settle the plaintiff’s claim with defendant right away. When Scheffki said he had no automobile, the adjuster came to his home and drove him and his wife to the company office. During their conversations, the adjuster told Scheffki that the settlement was to be for $15,000. In defendant’s claims office, the adjuster told Scheffki that he “[t] bought I got a very good settlement, as long as I was willing to cooperate and didn’t get any lawyer, why, he would have a lawyer for me and he’d take me to the lawyer, and we would get everything settled.” Scheffki and his wife were taken to the office of a lawyer selected by defendant’s employees.

There, according to Scheffki, the lawyer told him that the settlement was a very good one. Scheffki was given papers to sign. These were pleadings in a minor’s settlement proceeding which was to be instituted in the probate court of Cook County seeking court approval of the settlement. The lawyer, according to Clement Scheffki, told him that if he were asked, he was to tell the probate judge that he thought the settlement was a good one. That same afternoon, in a two minute hearing, an estate for the plaintiff was opened and Clement Scheffki was appointed plaintiffs guardian. The court approved the settlement and the release was signed by Clement Scheffki on behalf of plaintiff in return for the sum of $15,000 which was deposited in two trust accounts for the plaintiff.

Plaintiff’s other witness was the lawyer. He testified that sometime before June 4, 1954, he received a telephone call from defendant’s adjuster. Time records which refreshed the lawyer’s recollection showed that the call was made on June 3, the day before Clement Scheffki and his wife were brought to the lawyers office. The pleadings which Scheffki signed were prepared the day before they came to the office. The lawyer testified that his fees were paid by the defendant; and that all the facts he knew about the case he obtained from the file delivered to his office by defendant’s adjuster. The lawyer testified that he did not handle personal injury cases for plaintiffs nor had he represented defendants in that kind of litigation. The lawyer admitted he made no independent investigation of plaintiff’s case before the settlement was presented for approval to the probate court. He was shown the pleadings he prepared which reflected an error concerning the place of the accident in which plaintiff was injured. He testified that when he appeared before the probate judge he told the court his fees were being paid by the defendant; however, he did not tell the judge that he had been selected by defendant’s employees to represent plaintiffs family.

The adjuster was called as a witness for the defendant. Neither in his direct nor in his cross-examination did he deny the statements attributed to him by Clement Scheffki. He testified that when he discussed the settlement of plaintiff’s case with Scheffki, the latter appeared to know and understand what was said to him. He said that Clement Scheffki was sober, indicated an understanding of the nature of the proceedings instituted on behalf of his son and understood the settlement being made.

After hearing the witnesses, the trial judge ordered “[t]hat the release heretofore signed on June 4, 1954, by Clement Scheffki as Guardian of the Estate of Donald Scheffki, a minor, age twelve, releasing defendant Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a corporation, is hereby vacated and declared a nullity.” Thereafter, on an amended one-count complaint, plaintiff’s cause of action for personal injuries was heard by a jury. The trial judge refused five instructions tendered by defendant. A $100,000 verdict in favor of plaintiff was returned. The trial judge reduced it by the $15,000 which defendant had paid plaintiff’s father on June 4, 1954. A judgment was entered against defendant in the sum of $85,000.

From these facts, defendant contends that the evidence fails to support the order which set aside the release. It argues that plaintiff did not prove fraud or mutual mistake and that plaintiff’s father understood the transaction into which he entered with defendant, including the settlement negotiations, the probate proceedings and execution of the release. Martin v. Po-Jo, Inc., 104 Ill.App.2d 462, 244 N.E.2d 851 is cited to support this position. However, this citation is not in point.

Defendant’s argument overlooks that this case involves a minor. It is the public policy of this state that rights of minors be carefully guarded. (Muscarello v. Peterson, 20 Ill.2d 548, 170 N.E.2d 564.) A minor who becomes a party to a litigation is a ward of the court, and a duty devolves upon that court to protect his rights. Giles v. Kuennen, 50 Ill.App.2d 389, 200 N.E.2d 143. Martin v. Po-Jo, Inc. did not involve the claim of a minor.

We attach significance to the testimony of the lawyer that he was selected and paid his fee by defendant, and trusted with defendant’s file concerning plaintiff’s case. The lawyer made no independent investigation of the accident in which plaintiff was injured; he relied on the representations of defendant as to the material facts which affected the rights of the parties involved. He never interviewed the plaintiff. He never advised plaintiff’s father and mother concerning their rights with regard to the acceptance or rejection of the settlement suggested by defendant through its duly authorized representatives. Indeed, an important role of the lawyer was to see that plaintiff’s father and mother signed the papers prepared the day before, and that the release for which defendant had bargained was executed before the $15,000 check was delivered to plaintiff’s father. The lawyer never denied that he told plaintiffs father how to respond to the probate judge’s inquiry concerning his satisfaction with the settlement into which he had entered on behalf of plaintiff. Defendant points to the lawyer’s testimony that he had represented other minors at the request of defendant prior to the time he acted for plaintiff’s family. It is insisted that in all these cases the lawyer represented the estate of the minor, not the defendant.

This construction of the relation between the parties is a sophism. Men of experience know that a railroad corporation wiU not trust its files to a lawyer who represents parties with interests adverse to it. It is more the truth to conclude, as apparently did the trial judge, that when defendant sent its file of plaintiff’s case to the lawyer, it knew that the lawyer was going to protect its interests. Thus, the lawyer was acting in the dual capacity of protecting the interests of defendant while appearing to act on behalf of plaintiff.

It is a firmly established rule, in this jurisdiction and in others, that a lawyer cannot represent conflicting interests nor undertake to discharge inconsistent duties, no matter how honest his motives or intentions. (People v. Gerold, 265 Ill. 448, 107 N.E. 165.) The rule is a rigid one. It is designed to prevent not only the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from putting himself where he must choose between reconciling conflicting interests and protecting rights which he should represent. Leman v. Steele, 167 Ill. App. 190. Indeed, had the probate judge known the facts disclosed to the trial judge, the lawyer would have been removed by the probate court because he was representing ‘adverse, conflicting and antagonistic interests in the same litigation, * * * Korman v. Matthias, 32 Ill.App.2d 341, 177 N.E.2d 720, citing Beerly v. The Wm. Meyer, Co., 332 Ill.App. 653, 75 N.E.2d 783. There need not have been actual fraud in the transaction. 46 Am.Jur.2d, Judgments, § 726 (1969). Therefore, it was not necessary that plaintiff prove fraud. It was enough that the evidence establish, as it did in this case, that defendant selected, employed and paid a lawyer who (regardless of the honesty of his purposes) represented conflicting interests when plaintiff's father gave defendant the release. It is as old as the Synoptic Gospels that “Ye cannot serve God and mammon.” Ancient though it be, this moral finds expression in the principles of equity which the trial judge correctly appfied when he set aside the release. See In re Anderson’s Estate, 20 Ill.App.2d 305, 155 N.E.2d 839; Missouri Pac. Ry. v. Lasca (1909), 79 Kan. 311, 99 P. 616.

Defendant’s other question concerns five instructions which it requested the trial judge to give the jury. Three of these (defendant’s Nos. 10, 11 and 12) were from Illinois Pattern Instructions. They defined a trespasser and the duties of defendant to trespassers on its land. The remaining two instructions (defendant’s Nos. 13, 14) were taken from two decisions of Illinois reviewing courts. (Briney v. Illinois Central, 401 Ill. 181, 81 N.E.2d 866 and Higgins v. B. & O. RR. Co., 16 Ill.App.2d 227, 147 N.E.2d 714.) None of these instructions referred to the fact that at the time of the accident plaintiff was a child.

Defendant argues that these instructions should have been given. It insists that, though he was a child, plaintiff was a trespasser on defendant’s property. In support of this argument defendant relies on two decisions of the Illinois Supreme Court, each holding that children on a railroad company’s property without its authority are trespassers to whom the company owed no duty except to avoid willfuUy or wantonly causing them injury. Defendant complains that contrary to this rule of law, plaintiff's claim was submitted to the jury on the theory of Kahn v. James Burton Company, 5 Ill.2d 614, 126 N.E.2d 836 (a case which involved trespassing children), decided approximately a year after plaintiff was injured, and not applied to a moving railroad train until approximately nine years later.

Kahn v. James Burton Company did not declare a new rule of law. In a new context, it applied an old one. The Supreme Court, citing Wagner v. Kepler (1952), 411 Ill. 368, 104 N.E.2d 231, said, “It is recognized * * * that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children.” 5 Ill.2d 614, at 625. The court went on to say, citing City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L.R.A. 206 (decided in 1895), that it is for the jury to determine whether this exception applies. The issues formed by the pleadings made these rules applicable, even before Kahn was decided. For these reasons we conclude that the trial judge properly refused to give the five instructions.

The order and judgment are affirmed.

Order and judgment affirmed.

SCHWARTZ, and STAMOS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Daniel J. Kleba, Defendant-Appellant.
    (No. 54297;
    First District
    August 31, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Martin Moltz, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

Our view of these proceedings requires dismissal of this appeal because we lack jurisdiction of the issue presented. A brief summary of the facts will disclose the reason that compels this conclusion.

On February 1, 1968, in three indictments alleging offenses committed on January 21, 1968, defendant was charged with the robbery of a fourteen year old boy, indecent liberties with a child, deviate sexual assault on the same youth, robbery of two women and the robbery and rape of a third. October 25, 1968, (evidently, while he was on bond awaiting trial), two indictments were returned alleging that on October 18 defendant raped two young women.

The five indictments came to trial before Judge James D. Crosson in the criminal division, circuit court of Cook County. Defendant appeared with counsel of his choice, who, when the State announced ready for the trial of one indictment, requested a plea-bargaining conference. With defendant’s consent, the request was granted. After the conference, counsel told Judge Crosson in open court that defendant wanted to plead guilty to the several indictments. Thereafter, defendant was admonished concerning the consequences of his desire to plead guilty. He persisted. Judge Crosson accepted his pleas. Thereafter, defendant was sentenced to serve two sentences of not less than one nor more than ten years for the robberies, two sentences of not less than four nor more than twelve years for two of the three rapes and not less than fifteen nor more than forty-five years for the third rape charge. After imposition of the sentences, defendant was advised of his right to appeal. December 17, 1968, defendant, acting on his own behalf, filed a notice of appeal to this court.

On January 29, 1969, represented by two attorneys who knew of the notice of appeal, defendant filed a petition “[f]or withdrawal of pleas of guilty heretofore entered in these causes on December 9, 1968.” The principal allegation was that defendant was induced to tender his pleas of guilty by his then retained counsel who led him “[t]o believe that the sentence he would receive in full for aU offenses charged, in the event of his entry of a plea of guilty thereto, would not exceed the term of ten to twenty years.” The petition was denied. Thereafter, the record was docketed in this court.

In pressing his appeal the issue defendant presents is whether he was entitled to a formal hearing to present evidence in support of his petition. In its reply, the State calls attention to defendant’s notice of appeal. It argues that the notice removed the case from the trial court and attached it to this court. Therefore, the trial court did not have jurisdiction over defendant’s petition for leave to withdraw his pleas of guilty. This contention impels consideration of the trial court’s jurisdiction and of ours, as weH.

The appeal to this court was perfected when defendant filed his notice with the clerk of the trial court. Supreme Court Rule 606(a); Ill. Rev. Stat. 1967, ch. 110A, § 606(a). The jurisdictional effect of filing a notice of appeal is well established in this State. In City of Chicago v. Myers, 37 Ill.2d 470, 472, 227 N.E.2d 760, it was said that: “The jurisdiction of the appeHate court attaches upon the proper filing of a notice of appeal. Thereafter, excepting certain instances not here concerned, the cause is beyond the jurisdiction of the trial court.” This rule applies in both civil and criminal cases. See Wolcott v. Village of Lombard, 387 Ill. 621, 57 N.E.2d 351 and People v. DeMarino, 72 Ill.App.2d 38, 219 N.E.2d 132.

Brehm v. Piotrowski, 409 Ill. 87, 98 N.E.2d 725 discusses the rule and its limiting effect on the jurisdiction of a reviewing court. The court said: “Fifing of a notice of appeal within due time causes j mis diction of the reviewing court to attach instanter and deprives the lower comt of jmisdiction. Also, this comt does not possess the jurisdiction to review proceedings of the lower comt which happened after the notice of appeal was filed and served.” 409 Ill. at 90.

In this case defendant filed his notice of appeal on December 17, 1968. This action effectively terminated the trial courts jurisdiction and commenced ours. (Nye v. Nye, 342 Ill.App. 11, 94 N.E.2d 909.) The notice of appeal, however, invested this court with power over only those issues which arose prior to the filing of the notice. (Butler v. Palm, 36 Ill.App.2d 351, 184 N.E.2d 633.) Therefore, our jurisdiction is limited to a review of questions existing at the time the notice of appeal was filed. (See Shapiro v. DiGuilio, 95 Ill.App.2d 184, 237 N.E.2d 771 and compare People v. Hayes, 108 Ill.App.2d 359, 247 N.E.2d 809.) Since appellant’s sole issue concerns only the January 29, 1969, hearing, a proceeding subsequent to the notice, we have no jurisdiction. The appeal is dismissed.

Appeal dismissed.

SCHWARTZ, and GOLDBERG, JJ., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Morris, Defendant-Appellant.
    (No. 54538;
    First District
    September 2, 1971.

      Leonard Karlin, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and James H. Feldman, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with murder and armed robbery. After a trial without a jury he was found guilty of both crimes. He was sentenced to terms of 25 to 35 years for each offense, the sentences to run concurrently. On appeal he contends that the trial court erred in failing to discharge him under the Four Term Act, and that the court erred in finding him guilty of murder under the felony-murder doctrine.

The record discloses that defendant was arrested on December 3, 1968, and held without bail until his trial on May 9, 1969. On March 31, 1969, the day preceding the expiration of the fourth term, the State petitioned the court for a 60-day extension because of the unavailability of three material witnesses. The petition recited that the witnesses were police officers, that the State had attempted unsuccessfully to locate them, but believed that they could be produced at a later date. Over defendant’s objection, the corut allowed a 60-day extension, and subsequently denied defendant’s motion to dismiss under the Four Term Act.

Defendant argues that the trial court improperly granted the State’s request for a 60-day extension. He contends primarily that the court was obliged to conduct an evidentiary hearing with cross-examination and submission of proof before it could allow the prosecution’s request.

The pertinent statute then in effect, Ill. Rev. Stat. 1967, ch. 38, par. 103—5, provided in part as follows:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant # # #
(b) * * *.
(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”

The issue of whether the State will be allowed an extension of time under the Four Term Act to secure material evidence rests in the sound discretion of the trial court, and its action in allowing or denying a continuance will not be disturbed unless there has been a clear abuse of that discretion. People v. Jones (1969), 76 Ill.App.2d 186, 221 N.E.2d 771, People v. Knox (1968), 94 Ill.App.2d 36, 236 N.E.2d 384.

The instant application for an extension complied with aH of the requirements of the statute. It stated that the prosecution had exercised diligence in seeking to produce named witnesses whose testimony would be material to the issues at trial. The petition also recited that there existed reasonable grounds to believe that the witnesses could be produced at a later date. Neither the statute nor case law require that the trial corut conduct an evidentiary hearing before granting or denying a prosecution request for an extension of time. The trial judge determined that the State was entitled to the additional time, and, under the facts and circumstances, that determination was proper. Nor are we persuaded that a different standard should apply when the proposed witnesses named in the State’s petition are pofice officers. Defendant was not entitled to a discharge under the Four Term Act.

Defendant next argues that he was improperly found guilty of murder under the felony-murder doctrine. The pertinent facts are as foHows.

On December 2, 1968, Albert Valenzuela, Emmett Hudson and defendant entered and robbed the patrons of a Chicago restaurant. AH three men were armed with guns. While the robbery was in progress, WHHe Phelps entered the restaurant. Valenzuela approached him and demanded his wrist watch. When Phelps refused, a struggle ensued. Three shots were fired, and according to expert testimony, all were fired from Valenzuela’s gun. Both Phelps and Valenzuela were shot, and Valenzuela died as the result of his wounds.

The Illinois Statute, Ill. Rev. Stat. 1967, ch. 38, par. 9—1(a)(3), de fines felony-murder as follows: (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: # * * (3) He is attempting or committing a forcible felony other than voluntary manslaughter.”

Where two or more defendants have a common design to commit an unlawful act, any act done by any of them in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed. People v. Nowak (1970), 45 Ill.2d 158, 258 N.E.2d 313. Where the killing of a third person is committed during the perpetration of a forcible felony, all participants in the felony are deemed equally guilty of murder. People v. Armstrong (1968), 41 Ill.2d 390, 243 N.E.2d 825. Under the felony-murder doctrine, it is immaterial whether the killing of the third person is intentional, accidental or committed by a co-felon without connivance of the defendant. People v. Weber (1948), 401 Ill. 584, 83 N.E.2d 297. In Illinois robbers were found guilty of murder when the victim’s brother, while trying to prevent the felony, killed his brother. People v. Payne (1935), 359 Ill. 246, 194 N.E. 539. On the other hand, in People v. Garippo (1920), 292 Ill. 293, 127 N.E. 75, during a robbery in which defendant was one of the perpetrators, one of his co-felons was killed. The court held that since it was not proved beyond a reasonable doubt that the deceased had been killed by one of his co-felons, defendant could not be convicted of felony-murder. However, the precise issue presented in the instant case, one of first impression in Illinois, is whether the felony-murder doctrine is applicable against a surviving felony when a co-felon is justifiably killed during the commission of a forcible felony.

While Illinois has not considered the issue before, several other States have had occasion to decide the question. In a now famous decision, a majority of the Supreme Court of Pennsylvania reversed an earlier holding, and ruled that surviving felons were not guilty of murder when their confederate was killed during the commission of a felony. Commonwealth v. Redline (1958), 391 Pa. 486, 137 A.2d 472. In so holding, the court said:

“In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge levied against him for the consequences of the lawful conduct of another person? The mere statement of the question carries with it its own answer.”

The court also held that in order to comply with the requirements of the felony-murder doctrine, it was necessary “to show that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony * * * and not merely coincidence.”

Although a majority of the California Supreme Court recently held that a surviving felon could be prosecuted for murder when an accomplice was killed by someone resisting the felony attempt, Taylor v. Superior Court (1970), 3 Cal.3d 578, 477 P.2d 131, the great majority of those jurisdictions which faced the same issue have followed the Redline decision. A majority of the Michigan Supreme Court expressly approved and adopted Redline in holding that two surviving felons could not be charged with murder after their accomplice was shot and killed by the intended victim. People v. Austin (1963), 370 Mich. 12, 120 N.W.2d 766. See also: People v. Wood (1960), 8 N.Y.2d 48, 167 N.E.2d 736; Commonwealth v. Balliro (1965), 349 Mass. 505, 209 N.E.2d 308; State v. Schwensen (1964), 237 Ore. 506, 392 P.2d 328; State v. Garner (1959), 238 La. 563, 115 So.2d 855.

We believe that the reasoning in Redline is sound, and we elect to foHow its principle. In order to meet the requirements of the felony-murder doctrine, it is necessary that the conduct causing death was an act done in furtherance of the common design to commit a forcible felony. In the instant case, the death of Valenzuela occurred during a struggle with an innocent third person, and was not such an act. We conclude that under such facts and circumstances, defendant as a surviving felon was not guilty of murder.

Accordingly, the judgment of conviction for armed robbery is affirmed. The judgment of conviction for murder is reversed.

Affirmed in part and reversed in part.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE DEMPSEY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ruben Schnexnyder, Defendant-Appellant.
    (No. 55467;
    First District
    September 9, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (James J. Doherty and Ronald P. Katz, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, States Attorney, of Chicago, (Robert A. Novelle, Michael J. Goldstein, and Brent Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE DEMPSEY.


author: Mr. PRESIDING JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carnell Brown, Defendant-Appellant.
    (No. 54041;
    First District
    September 10, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Saul H. Brauner and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Roger S. Matelski, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED

Attempt (to commit murder). Ill. Rev. Stat. 1967, ch. 38, pars. 8 — 4 (a), 9—1(a). Armed robbery. Ill. Rev. Stat. 1967, ch. 38, par. 18— 2(a). Aggravated battery. Ill. Rev. Stat. 1967, ch. 38, par. 12—4 (b) (1). Two counts of armed violence. Ill. Rev. Stat. 1967, ch. 38, par. 33A—2.

JUDGMENT

After a trial by jury, defendant was found not guilty of attempt (murder) and armed robbery. He was found guilty of aggravated battery and two counts of armed violence and was given two concurrent sentences of two to five years, one for aggravated battery and one for armed violence.

CONTENTIONS RAISED ON APPEAL

1. The evidence was not sufficient to establish defendant’s guilt beyond a reasonable doubt.

2. The court imposed an unlawful sentence.

EVIDENCE (RELEVANT TO THE JUDGMENTS APPEALED FROM)

Scott Chambers, a police officer, for the State:

On January 16, 1968, he was working with his partner, Lawrence Bork. At approximately 7:30 p.m., they received a radio message that there had been a robbery at 1306 S. Washtenaw, together with a description of the two robbers. The officers were then near the scene in the 1300 block of S. Taiman in an unmarked police car, in civilian clothes. Two blocks from the place of the robbery, they noticed a youth wearing a brown coat coming west from the south alley of Taiman who fitted the description of one of the wanted men. He stopped the squad car and identified himself as a police officer by showing his badge when he was eight to ten feet from the youth. He did not produce a weapon at this time. There was a blue fluorescent bulb over the mouth end of the alley, and he saw the suspect’s face, whom he identified as defendant.

Defendant turned and ran east through the alley. He and his partner chased about 15 to 20 feet behind the boy. The alley is “T” shaped, and as defendant reached the middle of the alley between Rockwell and Taiman, he ran north through another alley, and turned into a gangway at 1332 Rockwell, running inside a link fence, where he slipped on the ice and fell. Officer Bork reached over the fence and grabbed defendant by the collar, but he broke away and ran into a basement.

The officers followed into the basement. The witness was not running when he went into the basement door, and remembers that, while going through the door, he did not hit his head on a pipe or anything else. He checked the back utility room while his partner remained in the front of the basement. When he walked to the back of the room, he heard heavy breathing. He again announced his office and went in the back room with his gun in his right hand. Defendant stepped partially into the light with something in his hand. He then saw the blade of a knife. Although there was no light in the room where defendant was hiding, there was a light three or four feet behind the witness. Defendant stepped forward and struck him across the head with a knife. After being cut, he could not see out of his left eye. His partner came to him and he pushed him away, stepping into the room, where he was again struck, this time with a board or piece of pipe which bounced off his shoulder and hit him on the left side of his face near the eye.

He fired three times and struck defendant, who was six feet away. Other patrolmen and his partner took the witness to Mt. Sinai Hospital where a wound in his forehead was closed with ten stitches. He had a fractured skull and hematoma in the left eye. He was positive of his identification of defendant as his attacker. Neither of the two youths brought to him at the hospital was the one who had attacked him.

Lawrence Bork, a police officer, for the State:

He is a policeman and was patrolling in an unmarked car with Chambers on January 16, 1968. At about 7:45 or 8:00 p.m., he saw defendant coming out of an alley. His description of the chase corroborated the testimony of Chambers. He also identified defendant, and said he had never lost sight of him until he went into the basement. When he heard Chambers say, “Come on out, police officer,” he ran back there and saw Chambers bleeding from the head. He started into the dark room but Chambers pushed him back, going in himself. He then heard three shots, and Chambers emerged with his head badly cut, with blood running down over his eye. Another patrolman who had heard the shots came in and the witness took Chambers to the hospital. Before leaving, he picked up a four-inch blade switch blade knife in the doorway of the back basement room.

Arthur Minton, a police officer, for the State:

On the night in question, he went to a vacant lot next to 1332 S. Rockwell where he saw Officers Bork and Chambers. Chambers was bleeding from the forehead, so he told Bork to take him to the hospital. He then went into the basement where he saw two other officers. They found defendant underneath a washbasin in a laundry room. He did not remember if there was a light in that room; he had a flashlight in his hand. Defendant did not fight or curse, but told them to be careful, that he was shot. He called the wagon and took defendant to the hospital.

He made a search of the premises, but found none of the articles alleged to have been taken in the robbery. He did not find a two-by-four with blood on it.

William Thompson, a police detective, for the State:

On the night in question, about 8:15, he went to 1332 S. Rockwell where he saw other officers. He saw defendant in the rear of the basement in the middle of the floor. He had been shot in the right leg, arm, and groin. He arrested, and then released, a suspect named Otis Brown.

Moses Zepeda, a police officer, for the defense:

He made out the case report at Mt. Sinai Hospital concerning the attack on Officer Chambers, the offender’s name being Carnell Brown. The report shows that another suspect, John Brown, was brought to Mt. Sinai Hospital and was identified by Officer Chambers as one of the offenders. He got the information in the report, including the name of John Brown, from Officer Bork.

John Brown, for the defense:

On the night in question, he was arrested and taken to Mt. Sinai Hospital where a policeman who had his head bandaged and who had a plaster on his eye, identified him as having cut him and run by him.

He lives with his brother, Otis Brown, and defendant who is his cousin.

Otis Brown, for the defense:

He is 15 years old. He was arrested and taken to Mt. Sinai Hospital, and his brother, John Brown, was brought there a few minutes later. The police asked the injured policeman if he had seen the witness before, and he said he had not. He said, however, that he had seen John Brown, who had hit him in the head and chased him out of the basement.

Leo Katz, for the defense:

He is a supervisor for Acme Spinning Company and defendant was working for him there at the date of his arrest. He knows defendant’s reputation in the community for truth and veracity to be good.

Leo Ranachowski, for the defense:

He is an investigator for the Public Defender of Cook County and conducted an investigation of the premises at 1332 S. Rockwell. He exhibited a diagram of the basement at that address which showed three rooms in the rear for storage, utility, and cleaning facilities. The doorway to the entrance of the basement is 5 feet 2 inches high. There is a metal pipe 5 feet 4 inches above the first stair down, 25 inches inside the doorway. It is 5 feet 11 inches from the floor. Anyone taller than five feet would have to duck to get into the basement, and the pipe cannot be seen when one walks in the door. The basement is very dark and the fighting is not good. He was in the basement a number of times between May 29 and July 29, 1968, and had to use a flashlight every time. There were fixtures for fights but no fight bulbs when he was there, except that one room in the front of the basement may have had a fight. There is a fight fixture in a central room six feet from the rear room in which he found bullet holes. On several of his visits to the basement there was a bulb in that fixture and sometimes there was none.

Mary Comer, for the defense:

She is 18 years old, a nurse’s aide, and a friend of defendant. She fives at 1326 S. Rockwell with her brother and his family. On January 18, 1968, she called defendant about 6:30 p.m. and asked him to come to her house, which he did in about five minutes. He remained with her until about 7:00 or 7:30 p.m.

Stella White, for the defense:

She lived at 1332 Rockwell on January 16, 1968, and saw defendant between 6:00 and 7:00 that evening. He was on his way home from work. He said that he was going to clean up and return, but about five minutes after he left (about 7:00), she heard a shot. She went out on her back porch where she saw defendant being carried out on a stretcher.

Carnell Brown, in his own behalf:

He is from Louie, Mississippi where he lived until moving to Chicago in November of 1967. He first lived at 1332 S. Rockwell, but on the day he was shot (January 16, 1968) he was living with his aunt at 1320 S. Washtenaw. Prior to January 16, he had a job and had never been arrested or convicted of any crime. On that date he left work about 4:30 and went home. Everyone was home and he washed up but did not change his clothes, ate, and relaxed until 6:30 when he got a call from Mary Comer. He took some records to her house shortly after 6:30 and stayed there about an hour. When he left, he saw Otis Brown, talked with him and a girl named Alma for about 15 minutes, then went to 1332 S. Rockwell where he talked to Stella White between 7:00 and 8:00 for about 30 minutes. He then left for home, short-cutting through the alley. When he got to the end of the alley, a car pulled up and a man got out. The man had a gun drawn and said, “Come get in the car, Nigger.” He turned around and ran back to 1332 S. Rockwell into the back of the basement, thinking someone would be there. None of the officers grabbed him before he got into the basement. The room was dark and he saw no light outside the room except for the light from a window. He saw no debris, bricks, sticks, or pipes. He hid in a corner and one of the men asked where he was. He went to move when he was shot by the man. He heard two shots. The man did not identify himself as a police offiecr or show a badge. He did not attack the man with a knife or a board. The men who chased him were not in uniform and their car did not look like a police car.

About five or ten minutes after he was shot, he was alone. Then the police came in and got him. He had crawled out of the room because he was hurt and wanted to be found. The police questioned him about a knife and gun and hi identity and residence. One uniformed officer grabbed his leg and kicked him.

He had never before seen the knife marked “People’s Exhibit No. 1,” nor had he ever owned a knife. He had no gun when he was arrested, but he had a wallet with no money which the police took.

Dr. Milton Tinsley, for the State in rebuttal:

He is a brain surgeon who examined Officer Chambers. He described Chambers’ injuries as a laceration and crack in the skull. He had no opinion as to what may have caused these injuries.

Officer Chambers, recalled for the State in rebuttal:

Two men were brought to him at the hospital, Otis Brown and John Brown. He never identified John Brown as his attacker, or as being connected with the case.

Officer Bork, also recalled in rebuttal:

At the hospital, Chambers was shown two suspects but did not identify either one of them as his attacker. He did not know the name of the offender nor did he tell Officer Zepeda that John Brown was involved in this incident.

OPINION

Defendant’s first contention, that he was not proven guilty beyond a reasonable doubt, rests on the argument that the State did not prove that he had knowledge that Officers Chambers and Bork were police officers.

The pertinent part of the statutory offense of aggravated battery is found in Ill. Rev. Stat. 1967, ch. 38, par. 12 — 4 (a) (6):

“(b) A person who, in committing a battery either:
“(6) Knows the individual harmed to be a peace officer, or a person summoned and directed by him, while such officer is engaged in the execution of any of his official duties including arrest or attempted arrest; * *

Armed violence, as charged in the two counts of this indictment, (Ill. Rev. Stat. 1967, ch. 38, par. 33A—2), is that defendant, while armed with a dangerous weapon, performed an act prohibited by section 12—4 (quoted above), or prohibited by section 31—1 (resisting or obstructing a peace officer).

In our opinion, the testimony introduced by the State, particularly that of Officers Chambers and Bork, was sufficient, if believed, to establish defendant’s guilt beyond a reasonable doubt. It is true that there was contradictory evidence on behalf of defendant, but it is the function of the trier of fact to determine matters of credibility. People v. Novotny, 41 Ill.2d 401, 411-412.

Defendant’s second contention is that the sentence of two to five years for armed violence exceeded the authorized penalty under Ill. Rev. Stat. 1967, ch. 38, par. 33A — 3, in that the minimum of such sentence in this case could not be more than one year (the minimum for aggravated battery). Since that section provides for a sentence of “not less than two years and not more than the maximum provided for the same act while unarmed,” the point is misconceived. Defendant’s citation of People v. Hardaway, 108 Ill.App.2d 325, 333, is also not well taken, as it involved aggravated assault, which at that time carried a maximum penalty of one year, rather than aggravated battery, which has a maximum penalty of five years.

Two counts of the indictment charged armed violence, but there was only one sentence, without designation as to a particular count. Since that sentence of two to five years exceeded the appropriate maximum in relation to the offense of resisting or obstructing a peace officer (section 31—1), we must assume that it applies to the charge relating to aggravated battery (section 12—4).

Referring specifically to the language of this court, the charge of armed violence was that defendant, whffe armed with a dangerous weapon, “committed a battery on Scott Chambers, knowing him to be a peace officer engaged in the execution of his official duties.” These quoted words are the language of Section 12—4(b)(6) and are identical to the indictment count which was the basis of defendant’s conviction for aggravated battery. The only difference between the two counts, therefore, is that the battery charged in the second one added the words “while armed with a dangerous weapon.” Since the proof supports the charge involving a deadly weapon, as the only battery proved was accomplished by means of a deadly weapon, and the acts, or series of acts in each instance were identical, the question arises as to whether there may be two sentences for the same conduct. The answer is that there may not be. (See People v. Schlenger, 13 Ill.2d 63, 66-68; also People v. Baker, 114 Ill.App.2d 450 and cases there cited.) We therefore affirm the sentence for armed violence (which we consider the more serious as it necessarily involves a dangerous weapon), and reverse the sentence for aggravated battery.

Affirmed in part and reversed in part.

DRUCKER and LORENZ, JJ., concur.