text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leslie Whittaker et al., Defendants-Appellants.
    (Nos. 72-167-168 cons.;
    Third District
    April 10, 1973.
    Leslie Whittaker and Joseph Phipps, pro se.

    C. Brett Bode, State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Tazewell County which denied a petition for post-conviction relief which was filed by Leslie Whittaker and Joseph Phipps, hereinafter referred to as the defendants.

The defendants in 1967 were charged under separate indictments with burglary and theft of property having a value in excess of $150.00. The cases were consolidated and tried by jury. Both defendants were found guilty.

During their trial both defendants were represented by private counsel. After being found guilty by jury but prior to a hearing on post-trial motions the defendants remained free from custody by posting bond. On the date set for hearing on their post-trial motions the defendants failed to appear in court. A warrant was issued for their arrest and they were subsequently apprehended in the State of Mississippi. The defendants executed a waiver of extradition and were returned to Illinois. The trial court denied their post-trial motions, entered a judgment of conviction as to each of them on the guilty verdict for the crime of. burglary. Prior to sentencing a hearing in aggravation and mitigation was had and during such hearing it was revealed that each defendant had prior convictions. The defendant Phipps had previously been convicted of burglary and on another occasion he had been convicted of the crime of felonious larceny. The defendant Whittaker also had been previously convicted of felonious larceny. After the hearing in aggravation and mitigation both defendants were sentenced to identical terms in the penitentiary of from 15 to 30 years for burglary, but no sentence was imposed on the theft charge.

Both defendants appealed their convictions to the Supreme Court of the State of Illinois and on their appeal they were again represented by private counsel. The Supreme Court affirmed their conviction in People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787.

Both defendants next filed in the Tazewell County circuit court Post-Conviction Hearing Petitions, supplementary petitions and amendments to the post-conviction petitions. In substance the post-conviction relief sought by the defendants was grounded on their allegations that their conviction was obtained as the result of an illegal search and seizure, that their sentences were excessive, and that a juror on voir dire examination falsely answered a question. The State filed responsive pleadings and the trial court granted the State’s motion to dismiss the Post-Conviction Petitions of the defendants as to all issues raised by the defendants with the exception of the issue raised in regard to the juror falsely answering a question on voir dire examination. In dismissing the petitions as to the other issues the trial court held that the judgment of a reviewing court is res judicata as to all issues actually raised before that court as well as to those which could have been raised but were not.

An evidentiary hearing with the defendants present was held by the Tazewell County circuit court on the juror issue and the court found that the juror did not testify falsely in response to questions tendered to him on voir dire examination. The defendants do not raise the juror issue in this appeal.

We first direct our attention to the question as to whether the defendants were barred from raising the issue of illegal search and seizure in a post-conviction proceedings when the issue could have been raised in a previous appeal taken by them.

In arriving at a determination of this issue we will set forth a recital of what we deem to be the pertinent facts and the procedure followed by the defendants in regard to the question of an illegal search and seizure.

It was adduced at the trial of the defendants that at about 3:15 A.M. on November 20, 1966, Officer William Martin of the East Peoria Police Department, while patrolling, observed a 1956 Chevrolet station wagon travelling at an excessive rate of speed. He curbed the automobile and at about that time two additional officers arrived at the scene. Approaching the vehicle, the officers observed, in plain view, cartons bearing the legend “Atlas Juicer, Juicemaster Manufacturing Company”, a crowbar, several flashlights, gloves, a sledgehammer, acetylene cutting torches, axes, a cardboard box partially filled with various packages of cigarettes and candy bars, and the barrel of a rifle protruding from the front seat. In addition, the police found in the vehicle an I.B.M. electric typewriter, a transistor radio, a Friden calculator, three pistols, numerous rounds of ammunition and a grey steel cash box containing $48 in cash and a roll of coins bearing a wrapper from “Creve Coeur Manufacturing Company.”

A hearing was held on a motion of the defendants to suppress evidence purportedly illegally seized and their motion was denied and the evidence ruled admissible.

In their appeal to the Illinois Supreme Court the defendants were represented by private counsel and the issue of an illegal search and seizure was not raised.

Our reviewing courts’ position on this issue presented to us is well stated in the case of People v. Kane, 5 Ill.App.3d 60, 282 N.E.2d 496, wherein it was stated:

“GeneraUy, the judgment of a reviewing court is res judicata as to aH issues actually raised before that court, as well as to those which could have been raised but were not. Issues of the latter nature wiH be deemed to have been waived unless fundamental fairness requires that they be considered in a later proceeding. People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455 * *

As we have stated, the issue of an illegal search and seizure was not raised in the defendants’ appeal to the Supreme Court, however, we fail to find in the record of this cause any element of unfairness which would require its consideration in a post-conviction proceedings. The defendants had this question litigated in the trial court by their motion to suppress evidence. At this time they were each represented by separate counsel of their choice. On appeal to the Supreme Court they were again represented by private counsel of their own choice. In that appeal were raised.issues concerning the indictment returned against them and the trial court’s ruling on certain instructions. There is no showing as there was in People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456, that their counsel refused to raise any issue after being requested to do so. Fundamental fairness does not require that a defendant have two appeals. (People v. Burlington, 6 Ill.App.3d 565, 286 N.E.2d 32.) The record in the instant case is devoid of any indication that the defendants have been the victim of any acts or circumstances of unfairness which would permit them to raise the issue of an illegal search and seizure in a post-conviction proceedings when the same issue could have been raised in their direct appeal to our Supreme Court.

The defendants also raised in their post-conviction petition the issue that the sentences imposed upon them were excessive. This question is one which could well have been raised in their appeal to the Supreme Court but they chose not to do so, and for the reasons we have previously set forth, to-wit, the absence of any circumstances of unfairness, we are of the opinion that they are precluded from raising it in a post-conviction hearing. The defendant argues that because he refused to enter a plea of gufity to the charge of burglary a harsher sentence was imposed upon him. In support of this contention he includes in the record a letter from a former public defender of Tazewell County wherein it is stated that had he pled guüty he would have received a sentence of 2 to 4 years rather than the sentence of 15 to 30 years in the penitentiary. If there is any merit in this contention of the defendant Whittaker it could well have been raised in his appeal to the Supreme Court. The imparting this information to the defendant was dated April 30, 1969. The defendant’s appeal was not decided until June 29, 1970, or some fourteen months later. We find this contention of the defendant Whittaker too tenuous to merit further consideration.

For tire reasons set forth the order of the circuit court of Tazewell County denying the petition of the defendants for post-conviction relief is affirmed.

Affirmed.

STOUDER, P. J., and DIXON, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Guy Hart, Defendant-Appellant.
    (No. 72-184;
    Third District
    April 10, 1973.
    Rruce Stratton, of Defender Project, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, for the People.
   PER CURIAM:

Defendant Guy Hart was convicted of robbery in a jury trial in the circuit court of Will County and was sentenced on June 28, 1971, to not less than three nor more than ten years in the Illinois State Penitentiary.

Following the filing of notice of appeal, the trial court appointed the District Defender of the IUinois Defender Project as counsel on appeal for defendant. AppeUate counsel has now filed in this court a Motion for Leave to Withdraw and a Brief in support thereof, pursuant to the precedent in Anders v. California 386 U.S. 738. Appellate counsel indicates that after careful examination of the record in the cause before us and a thorough consideration of every possible issue, appellate counsel has concluded that an appeal would be wholly frivolous and could not possibly be successful.

From the record, it appears that between 4:00 A.M. and 4:30 A.M. on February 4, 1971, Alfred Mortenson was working as a clerk in the Day and Night Food Mart, when a man entered the premises and went to the back of the store. Soon thereafter, the man appeared at the checkout counter wearing nylon pantyhose over his head and stated, “This is a stick-up young man.” The clerk, Mortenson, testified that the man had his right hand in his coat pocket and that it appeared that something was protruding from his pocket. Mortenson then placed all the bills from the cash register into a brown paper bag and the robber dropped a pair of Boss gloves into the bag and left. A customer in the store, Phyllis Kutzschebauch, corroborated Mortensons version of the robbery.

Mortenson testified that he placed about $150 into the bag, mostly in “singles” (approximately 75 to 100), a “couple of tens,” and a “couple of fives.” He also stated that he noticed the man’s face when he entered the store and, also, when the man took off the nylon stocking when he was leaving. He stated that the robber was wearing a dark coat with a fur collar, a brown shirt and brown pants. Mortenson made an in-court identification of defendant.

State Trooper James Vaughn testified for the prosecution and stated that while he was in his patrol car he received a radio message relating to the robbery and shortly thereafter stopped defendant in an automobile, which resembled the car described in the radio message, for failure to dim the headlights. When Officer Kapella of the Joliet Police arrived at the scene he searched defendant’s automobile and his coat. From the automobile he seized a bag containing paper money (91 one dollar bills, 4 five dollar bills, and 3 ten dollar bills). He also found a pair of Boss gloves, and from the coat he took a pah of woman’s pantyhose. These items, and also the brown slacks and black coat that defendant was wearing at the time of the arrest, were admitted in evidence.

At the arraignment on March 3, 1971, the court appointed Mr. Murer, the public defender, to represent the defendant. At that time the defendant said that he had Mr. Murer to represent him which was “fine” with defendant. On April 5, 1971, the day the case was set for trial, a private attorney appeared and moved for leave to substitute for the public defender if the court would grant a 30-day continuance. The public defender stated that although he was prepared to go to trial he had no objection to the substitution of counsel. The court denied the motion for substitution because it was conditioned on a 30-day continuance.

A granting of a continuance for substitution of counsel is a matter resting within the sound judicial discretion of the trial court. (People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54.) A conviction will not be reversed because of the denial of such motion unless it appears that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights. (People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736.) Nothing in the record indicates that defendant was prejudiced in any manner by the refusal to allow the continuance for the substitution of counsel. Defendant never expressed dissatisfaction with the public defender. The public defender announced he was ready on the date set for trial and demonstrated his preparedness by conducting the defendant’s defense very adequately.

Prior to the trial, defendant filed a motion to suppress evidence seized at the scene of arrest. Defendant contended tiiat the police did not have probable cause to make the arrest, and that, therefore, the search which followed the arrest was illegal. At the hearing on the motion it was determined that defendant was stopped in his car a short time after the robbery. The car closely resembled the known description of the car used by the robber. Defendant’s size and his clothes fit the description known to the police at the time of his arrest. In a similar factual situation, the United States Supreme Court approved a warrantless search of an auto. Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419.

Defendant also filed a Motion to Suppress the Identification Testimony by eye witness Mortenson alleging that the photo identification was conducted improperly. At the hearing on this motion defendant brought out the fact that defendant’s picture was about %6 of an inch larger than the other four pictures and that his picture was the only one which had a date on it. The date was “2/4”, a date approximately one week after the robbery. Mortenson testified for the State and said that he recognized defendant’s picture immediately; that he did not notice the date on it until after he identified defendant’s picture and that he never noticed that the pictures were not the same size. On the basis of the evidence presented at the hearing, it was not error to deny the motion to suppress the photographic identification for the reason that defendant did not sustain the burden of showing that the photo line-up was unnecessarily suggestive. People v. Wooley, 127 Ill.App.2d 249, 262 N.E.2d 237.

After an extensive hearing, defendant’s application for probation was denied. The probation report recommended that probation be denied. At the hearing the defendant admitted that he was on parole at the time this crime was committed. Defendant had no absolute right to probation. (People v. Polansky, 6 Ill.App.3d 773, 287 N.E.2d 747.) It was, therefore, not an abuse of discretion to deny defendant’s application for probation. The State introduced evidence of two prior robbery convictions and that the defendant was on parole at the time the robbery under consideration was committed. It, consequently, appears that the sentence of not less than three years nor more than ten years was not excessive.

After a complete examination of all the proceedings we conclude that appellate counsel was correct in the motion filed in this court. We, therefore, conclude that an appeal in this case would be wholly frivolous and that the judgment of the circuit court of Will County should be affirmed, since there was adequate compliance with Anders v. California, 386 U.S. 738.

This cause is, therefore,, affirmed. The motion of counsel for appellant to withdraw is herewith allowed.

Affirmed.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Morton Bass et al., Plaintiffs-Appellees, v. The City of Joliet, Defendant-Appellant.
    (No. 72-317;
    Third District
    March 30, 1973.

      Rehearing denied April 25, 1973.

      James M. P. D’Amico, of Joliet, for appellant.
    Robert S. Krockey, of Joliet, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant, the City of Joliet, here appeals from a decree of the circuit court of Will County, finding the City’s zoning ordinance to be invalid in its application to property owned by plaintiffs, and also restraining defendant from interfering with, the use of the property as a medical clinic. It is contended that plaintiffs were not entitled to judicial relief because they had not exhausted their administrative remedies, and, alternatively, that the decree should be reversed because plaintiffs failed to meet the burden of proof requirements imposed upon one who seeks to overcome the presumptive validity of a zoning ordinance.

The property in question consists of 12 vacant, platted lots, each having dimensions of approximately 44 X 140 feet and in total consisting of about 1.7 acres of land. Generally speaking, they are located in the easternmost part of a block bounded on the south by Glenwood Avenue; on the west by Springfield Avenue; on the north by West Acres Road; and on the east by Madison Street. Glenwood and Springfield are major traffic arteries. The lots are so situated that six of them front on Glen-wood for a total distance of 266 feet, while the other six front on West Acres for the same distance. The east boundary lines of the two most easterly lots run parallel with Madison for a distance of 280.5 feet. Again speaking generally, land in the immediate area to the north of Glenwood has a residential classification of one sort or another, while the land immediately south of Glenwood is zoned R-B, a classification which permits business and professional offices and multiple family residential dwellings.

To the west of plaintiffs’ lots, and within the block in which they are located, the land fronting on West Acres is improved with single family dwellings, while the land fronting on Glenwood, between the lots and Springfield Avenue, is improved with multiple family, town house dwellings. On the northwest corner of the Glenwood-Springfield intersection, a block west of plaintiffs’ lots, there is a medical clinic which accommodates seven doctors, but the remainder of the immediate area to the west and north of the intersection is improved with single family dwellings. West of the intersection along the south side of Glenwood are several businesses, including a gasoline station and shopping center. The area to the west of plaintiffs’ land, across West Acres, and the area to the east, across Madison, are improved with single family dwellings for the most part.

St. Joseph Hospital and its appurtenant power plant and parking facilities are located on the south side of Glenwood directly across from plaintiffs’ lots. The hospital, housed in a nine-story structure, is a full service general hospital wherein various specialized diagnostic and treatment centers are also located, and which has teaching programs for nurses and high school and junior college students. It has 463 beds, admits from 20,000 to 21,000 in-patients a year and sees about 77,000 outpatients annually, 36,000 of which are emergency room patients. On the staff are 160 doctors and 28 dentists. There are 1200 employees, of which 825 are full time. It was estimated that about 2000 persons visit hospital patients in the course of a week. All told, counting doctors, nurses, students, patients, visitors and deliverymen, some 3500 people come to the hospital each day. Under plans which were to be put into operation shortly after this case was tried, a basement and four-story addition is being constructed which will increase patient capacity by 100 beds. This expansion will require a minimum of 200 additional employees, will generate an additional 25 to 30 nursing students and will increase tire number of persons coming to the hospital by approximately 400 to 500 per day. Private and public transportation to the hospital and its parking facilities are oriented to Glenwood, and the entrance to the emergency room is also off Glenwood.

The hospital property is zoned R-B, as is the land located to the south, east and west of plaintiffs’ property. Along the south side of Glenwood, east of Madison, there are three medical clinics in the nearby vicinity, one of which is on the southeast corner of the Glenwood-Madison intersection diagonally across from plaintiffs’ property. Also, east of the hospital is a high school. West of the hospital, along the south side of Glenwood for a distance of half-mile are uses by various businesses and institutions. South and east of the hospital, along Madison, are two nursing homes, two high-rise apartment buildings and a veterinary clinic.

While we do not find the exact date in the record, it appears that plaintiffs’ lots were zoned R-2 in 1958 and that such classification was continued by a revised ordinance enacted in 1968. Under such classification, both before and after the revision of the ordinance, permissible uses are: one family residences; general education or religious schools; churches and parish houses; social and recreational facilities; public parks and playgrounds; public libraries and the public cultural uses; essential public services such as water towers; and farms, private stables, nurseries; truck gardens or greenhouses.

Plaintiffs purchased their lots from an estate in 1966 at a cost of $20,000 and in 1967 sought to have the land rezoned to a classification which would permit its use for multiple family town houses. The application was denied. Several years thereafter, plaintiffs entered into an option to sell the property to a group of orthopedic surgeons, subject to suitable rezoning which would permit its use for a medical clinic. As is frequently the case, the burden of procuring the rezoning was placed upon the optionees. Accordingly, on November 2, 1971, an application was filed in the names of the plaintiffs for rezoning to an R-B (medical complex) classification. After a public hearing on December 2, 1971, the Plan Commission recommended to the city council that the application be denied. The council did not act on the recommendation, but, instead, recommended that the commission be petitioned to reconsider the application under the City’s Planned Unit Development ordinance. This suggestion was followed and such a petition was filed in plaintiffs’ behalf on December 23, 1971. A second public hearing was held on March 2, 1972, at which time the optionees presented their site plan, but the commission again recommended that the application be denied on the ground that plaintiffs’ tract (1.7 acres) lacked the five or more acres necessary to bring the project within the purview of the planned development ordinance. Completing the dilatory circuity of negative action, the council, on April 11, 1971, voted to concur in the recommendation of the Commission. The action of plaintiffs for declaratory and injunctive relief from which this appeal stems soon followed. At the trial it appears that a site plan was introduced in evidence which differed in some respects from the plan submitted to the Commission.

Before considering the other issues raised by the appeal, and the evidence relating thereto, we deem it expedient to first consider the contention of defendant that plaintiffs were not entitled to judicial relief because they failed to exhaust their administrative remedies. (See: Bright v. City of Evanston, 10 Ill.2d 178; Reilly v. City of Chicago, 24 Ill.2d 348.) The rule of exhaustion of administrative remedies, unique to zoning cases, is no more than an expression of judicial policy which recognizes that zoning is primarily an administrative function, and is aimed at affording local authorities an opportunity to correct errors and settle disputes before there is judicial intervention. It is not jurisdictional, however, nor is it unreasonably employed, and to prevent needless delay, increase of costs and circuity of action. It is not applied where the demonstrated attitude of the local authorities makes it clear that administrative relief, or further efforts to obtain it, will not be forthcoming. County of Lake v. McNeal, 24 Ill.2d 253; Van Laten v. City of Chicago, 28 Ill.2d 157.

The record here discloses, without dispute, that the city zoning officials had twice refused to rezone the property for use as a medical clinic before judicial relief was sought. Therefore, it would appear that the trial court was eminently correct in its finding that there had been an exhaustion of administrative remedies. Defendant reasons, however, that since it was the optionees who carried the burden of the proceeding before the city, it cannot be said that plaintiffs, the optionors, have ever sought administrative relief. Further, since the site plan introduced in evidence in this judicial proceeding was not precisely the same as the plan presented to the commission, it is urged that there can be no exhaustion of administrative remedies until the Commission is again permitted to consider the rezoning application in light of the altered site plan.

While it is questionable as to whether these contentions were in fact raised and passed upon in the trial court so as to be properly preserved for review, it is sufficient to say we do not find merit in the marginal distinctions defendant seeks to make. The commissions refusal was not based upon any inadequacy of the site plan presented, but on the ground that the site itself was not of sufficient size to permit its use for a planned unit development. Also, all the administrative actions were carried on in the names of the plaintiffs, and, more significantly, the issues presented to and decided by the local authorities are precisely the same issues raised in this judicial proceeding, viz., whether plaintiffs’ property should be changed from an R-l to R-B classification and permitted to be used for a medical clinic. The case of American National Bank & Trust Co. v. City of Chicago, 130 Ill.App.2d 24, upon which defendant principally relies is inapposite. There the property owner sought to have his land rezoned from R-l to R-4 at the administrative level, but then altered his position and sought a change from R-l to R-3 in the judicial proceeding which followed. Under these circumstances, which have no valid parallel in this case, it was held that the owner had not exhausted his administrative remedies. Apart from the shortcomings of defendant’s theories, we are also constrained to observe that the history of the efforts to have such disputed property rezoned makes it apparent that it would be a fruitless gesture to again submit the matter to the local authorities. Cf. First National Bank of Skokie v. City of Chicago, 25 Ill.2d 366; Fiore v. City of Highland Park, 76 Ill.App.2d 62.

On the principal issue of whether the ordinance was invalid in its application to the disputed property, plaintiffs presented the testimony of Gerald R. Fahrner, a professional real estate appraiser. He testified that the twelve lots owned by plaintiffs were undersized for single family residences under standards fixed by the city’s building code, and that because of this, only eight single family residences could be erected on the site. On this basis he testified that the value of the premises for single family purposes would be $56,000 or $7,000 per building site. Based upon comparable sales in the area, he estimated that the value would be $104,000 if the property was permitted to be used for a medical clinic. Further, the witness conceded there was a demand for residential lots in the general area north of Glenwood, but expressed the belief that plaintiffs’ lots had nonetheless remained vacant and unsold because they were not suitable for single family residence purposes. Factors upon which he based his belief were the smallness of the lots, the dominating influence of the hospital (directly across the street) and the presence of the multiple family town house development in part adjacent to plaintiffs’ lots on the west. The witness further testified that the highest and best use of the property would be for a medical clinic, and gave his opinion that such use would not reduce the value of the eixsting nearby residential uses, but would in fact enhance values and constitute a general improvement of the area.

Robert T. Van Treeck, a planning and zoning consultant, also testified for plaintiffs that the highest and best use of the property would be for a medical clinic. As grounds therefor, he stated that the property took its character from the hospital and that the location of a clinic in close proximity to the hospital would benefit the community, patients and doctors alike. As an experienced planner, he testified that the hospital and the traffic on Glenwood dictated that the north side of Glenwood, across from the hospital, should be developed as a transitional use zone which would serve as a buffer between the hospital and the single family residential zones on West Acres and west thereof. In this regard, he further testified that a medical clinic would be an ideal use in such a transitional zone. Additionally, he stated that a medical clinic would neither be incompatible with nearby residence properties nor decrease their value, and that a medical clinic would be no more incompatible with nearby residences than would other uses permitted under the R-2 classification, notably churches, schools, library or recreational facilities. The latter uses, he stated, would entail a site plan comparable to that for a medical clinic, and it was his opinion that the site plan admitted into evidence in the case would effectively and artistically screen the clinic from the nearby single family residences. Concluding his testimony, Van Treeck stated that traffic generated by a clinic would have no appreciable effect on the already heavily traveled Glenwood Avenue and, at the same time, manifested a belief that the traffic on Glenwood was a factor which rendered plaintiffs’ property unsuitable for single family residential use.

Dr. Noel A. Bass, one of the plaintiffs, testified to the previous effort to have the property rezoned to a classification which would permit its use for town houses. He also testified that he had attempted to sell the property by listing it with various realtors, that his asking price was $4500 per lot, or $50,000 for all 12 lots, and that no offers of purchase had ever been received until the group of orthopedic surgeons took their option. With regard to the site plan for the proposed clinic, the doctor testified that the building was designed to accommodate from six to eight doctors; that there would be vehicular entrances to the premises off both Glenwood and Madison; that all parking would be on the west side of the premises to encourage entry from Glenwood; that there would be landscaping on all sides of the premises except the Glenwood side; and that the landscaping across the rear, fronting on West Acres, would bé elevated on a berm and thus provide even greater screening in that direction.

Both Dr. Bass and Thomas J. Sukikatas gave testimony as to the community need for a medical clinic. The latter, executive director of the Will-Grundy-Kankakee County Comprehensive Health Planning Council, testified that the population in Will County had increased slightly over 30% in the period between 1960 and 1970; that projections were for additional large increases; that the present population of Will County was 250,000; and that such population was served by some 160 physicians, some 20 of which, such as pathologists and radiologists, were not directly associated with patient care. According to his further testimony, the doctor-patient ratio in the county was one to 1500, as compared to a national ratio of one doctor per 863 persons and a state ratio of one per 813 persons. On this basis he stated that the area needed more physicians to deliver services and more primary health care entry points, such as clinics, to which patients could come for services. A clinic on plaintiffs’ property, he stated, would benefit the population of the area in that it would allow another access into the care system and would also allow ready access to the full service hospital located nearby. A further circumstance from which the population would benefit, would be that the nearness of hospital and clinic would allow physicians to conserve their time and better utilize it for patient care. Dr. Bass testified along the same lines and also stated that there was a shortage of medical practitioners in the area, and that a medical clinic such as proposed would provide an entry point into practice which would attract new physicians.

In the brief presented to this court, defendant relies principally on the testimony of its witness Allen Kracower, a city planner and landscape architect, and Franklynn B. Albert, the city’s director of community planning. Excluding the element of value from his opinion, Kracower testified that the highest and best use of plaintiffs’ property would be some form of residential development, preferably single family housing. As the basis therefor, he stated that ninety percent of the land north of Glenwood in the immediate area was residentially developed in accordance with a master plan adopted in 1958; that such residential development fixed the character of plaintiffs’ property, and, conversely, that the hospital should have no effect on tire use of the property; also, that a medical clinic would be incompatible with nearby single family residences and reduce their value. Somewhat inconsistently, however, he stated that residential areas should be located in such a way as to protect them from noise, traffic and “other objectionable items”. On the subject of traffic, he expressed the belief that a medical clinic on plaintiffs’ property would generate only slightly more traffic than would single family residences, but conceded that no serious traffic problem would be created by either use. Albert testified that the highest and best use of the land was “some sort of medium density residential development”, giving as his reasons that any other use would generate objectionable traffic in a residential area and that the character of the property was fixed by the residential development north of Glenwood. He stated also that a medical clinic would be incompatible with existing residences, and that there were vacant properties to the south of Glen-wood with zoning which would permit a medical clinic to be built.

Also testifying for the defendant were Barbara Grosser, the chief planner on Albert’s staff, and Mrs. Roger Dalton, the owner of a single family residence on Madison. The latter testified that she had purchased her property in anticipation that plaintiffs’ land would be developed with single family residences. The former testified as to the various zoning classifications in the city and expressed the opinion that it was reasonable to exclude a medical clinic from an R-2 residential zone because of the traffic generated and the parking facilities required. Further, she stated that she could see no inconsistency or unreasonableness in the fact that churches, schools, libraries and social facilities were permitted uses in and R-2 zone, even though such uses would also require off-street parking and would generate additional traffic.

A zoning ordinance is clothed with a presumption of validity, and it is a fundamental proposition that a party attempting to overcome the presumption must do so by clear and convincing evidence. More specifically, in a case such as this, the property owner has the burden of proving that the zoning classification under attack bears no reasonable relation to the public health, safety, welfare or morals, (Trendel v. County of Cook, 27 Ill.2d 155), and a concomitant burden of proving that the use he proposes to make of his property is reasonable and will not be detrimental to the public health, safety, welfare or morals. Mangel & Co. v. Village of Wilmette, 115 Ill.App.2d 383.

Based upon these principles, it is first contended by defendant that plaintiffs failed to meet such burdens, and in so contending, it is represented that the only matters proved by plaintiffs were that the property would be worth more if put to the use sought, and that the residential classification was unreasonable because the property abutted in a heavily traveled street. However, from the evidence already detailed (which will subsequently be discussed) it is at this time a sufficient answer to defendant’s contention to note that plaintiffs’ proof was not so narrowly circumscribed. Next, it is asserted that plaintiffs’ proof relating to the highest and best use of the property, the impact of the proposed use on other properties and the effect on property values was not of the clear and convincing character required to overcome the presumption of validity due to the opposing testimony given on such matters by defendant’s witnesses. This contention is without merit. Our courts have consistently held in zoning cases that a mere conflict of testimony as to such matters does not create an irrebuttable presumption that an ordinance is valid, or require a finding that the reasonableness of the ordinance is debatable. (Lakeland Bluff, Inc. v. County of Will, 114 Ill. App.2d 267; La Salle National Bank v. County of Cook, 12 Ill.2d 40; Bauske v. City of Des Plaines, 13 Ill.2d 169). As in all cases, such conflicts go to the credibility of the witnesses and the weight to be accorded their testimony, which are matters to be determined by the trier of fact, and unless manifestly against the weight of the evidence, such determination will not be disturbed on review. Walz v. Traders Development Corp., 80 Ill.App.2d 386; Northern Trust Co. v. City of Chicago, 4 Ill.2d 432.

The trial court here, in essence, made two completely consistent determinations. First, that the single family residence classification was arbitrary, unreasonable and its continuance unnecessary for any reason of public health, safety, welfare or morals; and second, that the proposed use of the property as a medical clinic was reasonable and in the best interests of the public and the community. On the basis of all the evidence, and under well established principles of zoning law, we cannot say that the findings- of the court were against the manifest weight of tire evidence, or that the court has in this case substituted its judgment for that of the zoning authority.

Apparent in the general arguments of defendant, and in the testimony of its principal witnesses, is a posture that the single family residence classification is reasonable and justified, and should remain unchanged, because the greater part of the land north of Glenwood in the immediate vicinity of the hospital is zoned and used for single family residences. While the general zoning plan is an important factor in determining the reasonableness of a use classification, it is not a conclusive factor. As stated by the court in Eleopoulos v. City of Chicago, 3 Ill.2d 247, 250: “The general scheme of zoning may be valid, yet, when applied to a particular piece of property and under a particular set of circumstances it may be so arbitrary and unreasonable as to result in a confiscation of that property. In that situation, as applied to the disputed real estate, the ordinance is void.” Despite the general plan of zoning, the facts and circumstances emerging from the proof in this case compel a conclusion that the single family residence classification is arbitrary, unreasonable and confiscatory.

The suitability of the disputed property for the zoned purpose is one factor to be considered in determining the reasonableness of a rezoning restriction (Krom v. City of Elmhurst, 8 Ill.2d 104), and it is a telling factor here. The testimony of plaintiffs’ witnesses that the property was rendered unsuitable for single family residential purposes due to the dominating influence of the hospital directly across from it, the multiple family town house dwellings adjacent to it and the traffic on Glenwood Avenue, stands virtually unrefuted in the record. Defendant’s witnesses made no mention at all of the impact the adjacent multiple family dwellings would have on single family use, and only Kracower made reference to the hospital, his testimony being only that the hospital “should not” have any influence on plaintiffs’ property. The same witness agreed with plaintiffs’ witnesses, as many courts have found, that heavy traffic does much to cause property to be unsuited and undesirable for single family residential purposes. (E.g. Chicago Title and Trust Co. v. Village of Wilmette, 27 Ill.2d 116; Petropoulos v. City of Chicago, 5 Ill.2d 270.) Apart from the volume of traffic coming to the hospital by way of Glenwood each day, common knowledge dictates that the type of traffic coming to the hospital’s emergency room 24-hours a day would render plaintiffs’ land even less suitable for single family dwellings.

Speaking perhaps most forcefully and eloquently as to the unsuitability of the property for single family use is the circumstance that it has remained vacant and unimproved under such use classification, even though, as a witness for plaintiffs testified, there was a demand for residential property in the area. (See: Krom v. City of Elmhurst, 8 Ill.2d 104; Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill.2d 116.) The argument of defendant that this factor may not be considered here because the property has remained vacant due to plaintiffs’ “own voluntary choice” is totally without support in the record. Plaintiffs’ obtained no control over the use or destiny of the property until they purchased it is 1986, and, so far as we can ascertain from the record, it had remained vacant under the single family residential classification for many years prior to that time. Most persuasive is the testimony of Dr. Bass that the property had been almost continuously listed with real estate brokers for sale on a basis of $4500 per lot, but had produced no takers. It stands unrefuted. That the lots were not priced out of the market is clearly shown by the uncontradicted testimony of Fahrner that single family residential lots in the area were selling for $7000 per lot, and that the city’s building code would require one purchasing plaintiffs’ lots to utilize one and one-half lots for single family use. While not a factor in determining the reasonableness of the single family classification, the charge, (that plaintiffs’ property has remained vacant through choice), is met by the proof that plaintiffs’ efforts to have the premises rezoned for town house purposes, a use to which a part of the adjoining property was being put, was denied by the city.

Two complementary factors also considered by the courts in determining the validity of a zoning classification in its application to a particular property are, first, the extent to which the value of the property in question is diminished by the zoning limitation, and, second, the extent to which the removal of the classification would depreciate the value of other properties in the area. (Hartung v. Village of Skokie, 22 Ill.2d 485; Myers v. City of Elmhurst, 12 Ill.2d 537.) Based upon the. evidence, it is our opinion that the application of these factors also show the arbitrary and confiscatory nature of the single family residence classification here. Fahrner testified for plaintiffs that the property had a value of $56,000 for single family residence purposes, as opposed to a value of $104,000 for medical clinic purposes, and both he and Van Treeck stated that the proposed use would not diminish the value of surrounding properties, but would undoubtedly enhance the area. It is true that Kracower testified for defendant that to put a medical clinic “within the midst of a single family area” would decrease the value of the single family homes; however, the basis of his opinion was not in conformity with the facts. Plaintiffs’ property is not in the midst of a single family area. As noted before, it is in part adjacent to a multiple family residential development and is across from the hospital complex. We think it pertinent to observe, also, that other uses permitted under the R.-2 classification, such as private stable, water towers and schools, would have a greater and more certain depreciating effect on surrounding residence properties than would a medical clinic.

Still another commonplace principle of zoning law, having application here, is that where the public interest in continuing a restrictive classification is nonexistent or insignificant as compared with the hardship placed on the owner, the classification is deemed unreasonable and in violation of the constitutional guaranties of due process and equal protection of law. (Exchange National Bank v. County of Cook, 6 Ill.2d 419, 425; Lakeland Bluff, Inc. v. County of Will, 114 Ill.App.2d 267.) The hardship on the owner in this case and the insignificance of the gain to the public by a continuance of the single family classification are apparent. Apart from monetary considerations, which show that the property will be worth $48,000 more if used for a medical clinic, the record shows that it had not attracted single family residence purchasers and that the efforts of plaintiffs to rezone it for multiple family purposes have been thwarted. As a consequence, the effect of the single family classification has been confiscatory, and has, as a practical matter, prevented the use of the premises for any purpose. We find no evidence of a public purpose or gain which will be realized by a retention of the classification. Rather, the reverse is true. Development of the property as a medical clinic will cause the premises to be more productive on the tax rolls, and will in part satisfy an undisputed community need by providing an entry point for patients and doctors alike into the health care system. In short, we conclude that the loss which plaintiffs will suffer, is totally unrelated to any substantial public benefit.

As previously detailed, plaintiffs offered proof which established that the use of their property would be reasonable and in the public interest. By its proof and arguments defendant makes no denial that the development of the clinic would be in the public interest, but attacks the reasonableness of the use on the ground that it would increase traffic in a residential area and expose nearby residences to an automobile parking lot. Neither claim is tenable on this record. As to the latter, it appears that permitted uses under the R-2 classification, such as library and social or recreational facilities, would also require off-street parking on the premises. As to the former, defendant’s own witness testified that a commercial use of the premises would generate but slightly more traffic than single family use and, in any event, that neither use would create a serious traffic problem. Furthermore, it appears that the parking lot for the clinic will be oriented to Glenwood, thus minimizing any substantial trafile through the residential area to the north of plaintiffs’ property.

Aimed in part at preventing a property owner from giving evidence of a proposed use of the property and then utilizing it for a substantially different use once the existing zoning has been found invalid, it was held by the court in Sinclair Pipe Line v. Village of Richton Park, 19 Ill.2d 370, 379: “In our opinion, it is appropriate for the court to avoid these difficulties by framing its decree with reference to the record before it, and particularly with reference to the evidence offered at the trial. In most of the cases that have come before us in recent years, a specific use was contemplated and the record was shaped in the terms of such use. In such cases the relief awarded may guarantee that the owner will be allowed to proceed with that use without further litigation and that he will not proceed with a different use.” Subsequent decisions applying this rule have held that the specific use permitted may not be framed in terms that are too broad, as. for example in Fiore v. City of Highland Park, 76 Ill.App.2d 62, 75-76, where the decree ordered that the disputed property be permitted to be used “for multiple family dweHings under the classification ‘F’ of the Highland Park zoning ordinance.”

In the present case plans for the proposed clinic were introduced into evidence, and the decree expressly provided, “* * * the plaintiff [sic] is entitled to develop said real estate for a medical clinic in accordance with the proposed plan and diagrams which were entered into evidence.” Without more, therefore, it is manifest that there was meticulous compfiance with the rule, and that the decree is not subject to the charge that it was too broad. There was, however, no direct evidence as to who was going to build the clinic, or when it was to be built, and on this basis defendant argues that such decree was rendered too broad and speculative. We cannot agree with this contention. The rule of Sinclair Pipe Line is directed to the specific use of the property, and who shaH make the use, or when (within reasonable Hmitations), is immaterial so long as the use complies with the decree of the court. The decree here directs that the clinic shall be bufft in accordance with the proposed plans and diagrams which were entered into evidence. Should the person or persons avaifing themselves of the benefit of the decree fail to comply, defendant is not without its remedy to prevent it.

Considering all the facts and circumstances of the case, it is our opinion that the single family residence classification of plaintiffs’ prop-. erty is arbitrary, confiscatory and unreasonable and that it is unrelated to tire public, health, safety, welfare or morals. Conversely it is our further opinion that the use of the property for a medical clinic is shown to be reasonable and in the pubfic interest. Accordingly, the decree of the circuit court of WiH County is affirmed.

Decree affirmed.

DIXON and SCOTT, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Watkins, Defendant-Appellant.
    (No. 11830;
    Fourth District
    April 30, 1973.
    Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Following revocation of his probation, defendant was sentenced to one to five years upon a conviction of forgery. This Court reversed from the bench during oral argument.

The petition for revocation alleged that defendant failed to report to the probation officer and was absent from the State. The record discloses that at the hearing on revocation, defendant’s appointed counsel stated:

“The defendant wishes to admit, Your Honor, to the violations as set forth in both of the reports of the probation officer.”

The court then imposed sentence following a short statement in mitigation by counsel.

In People v. Pier, 51 Ill.2d 96, 281 N.E.2d 289, revocation of probation and imposition of sentence was founded only upon an admission of the violations alleged. In considering issues raised in post-conviction proceedings, the court said:

“Justice demands that he also be entitled to the protection of the same due-process requirements which pertain to pleas of guilty when he waives his right to a judicial determination of the charge that he violated his probation and confesses or admits the charges of the revocation petition.”

The due process requirements pertaining to pleas of guilty are contained in Supreme Court Rule 402. Paragraph (e) of the Rule provides:

“Transcript Required. In cases in which the defendant is charged with a crime punishable by imprisonment in the penitentiary, the proceedings required by this rule to be in open court shall be taken verbatim, transcribed, filed, and made a part of the common-law record.”

This record fails to demonstrate that the requirements of Pier or of Rule 402(e) have been satisfied.

In People v. Bryan, 5 Ill.App.3d 1006, 284 N.E.2d 706, this Court reviewed revocation proceedings upon a record substantially identicál to the record in the present case, and determined that the cause must be reversed and remanded for further proceedings.

By reason of the several authorities noted, the judgment and sentence of the Circuit Court are reversed and the cause is remanded for further proceedings consistent with tire views stated. Clerk ordered to issue the mandate of this Court forthwith.

Reversed and remanded.

CRAVEN, P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George La Keta, Defendant-Appellant.
    (No. 71-345;
    Second District
    April 6, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.
    William B. Petty, State’s Attorney, of Mt. Carroll, (Edward N. Morris, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant herein was indicted for attempt burglary and possession of burglary tools. He entered into a negotiated plea before the court as to attempt burglary and was sentenced to 1-4 years in the Illinois State Penitentiary. The count for possession of burglary tools was nolle prossed.

The sole issue in this appeal is the sufficiency of the indictment.

The indictment charged that the defendant “committed the offense of attempt in that said defendant, with the intent to commit the offense of burglary, attempted to break ino Seng Food Mart by prying the back door of said place open 9 * The defendant in this appeal alleges that the indictment for attempt burglary should contain allegations that he attempted to enter the building “without authority” and “with the intent to commit therein a felony or theft.” It is of course, essential that these two elements appear in a burglary indictment. However, this is not a burglary indictment but is an indictment for attempt. In People v. Williams (1972), 52 Ill.2d 455, 288 N.E.2d 406, the defendant was indicted for attempt kidnapping. The defendant therein contended that the indictment did not allege that the confinement of the child was without the consent of its parents or guardian. As the court pointed out, the indictment was brought not for the crime of kidnapping but for the crime of attempt. The court stated at 409:

“* * * in an indictment for attempt, the crime intended need not set out as fully and specifically as would be required in an indictment for the actual commission of the crime. [Citations.]”

In People v. Beeftink (1961), 21 Ill.2d 282, 171 N.E.2d 632, the charge in that case was conspiracy to commit a felony, to-wit: burglary. The indictment did not allege all the elements of the offense of burglary. In stating that the indictment used the language of the statute in charging the crime which defendants conspired to commit, the court said at pages 637-638:

“* * * The charge is not with committing a burglary or receiving stolen property but a conspiracy to commit each of those crimes. The indictment, in our opinion, is sufficient for each of the defendants, in the event of trial, to plead double jeopardy in the event they are subsequently charged with conspiracy with the same persons to commit burglary or to receive stolen property. We believe that these counts are so plainly drawn that the nature of the offenses charged will be easily understood by the jury as well as by the accused.”

In this court’s opinion the charge of conspiracy to commit a crime is analogous with a charge of attempt to commit a crime. It is not essential or necessary that all of the elements of the crime itself attempted be set forth. As the court stated in People v. Brouilette (1968), 92 Ill.App.2d 168, 236 N.E.2d 12 at 14:

“An indictment is deemed sufficient when it states the offense in the terms and language of the statute creating the offense and when the offense as charged is sufficiently definite to enable the defendant to prepare his defenses and to plead any judgment in bar of a subsequent prosecution for the same offense. [Citations.] * * * In an indictment for conspiracy to commit a felony, it is not required that the felony be described with the same accuracy as would be required in an indictment for the felony itself. [Citations.]”

That is the situation here. The defendant was fully advised by the indictment to which he plead guilty. He was indicted with the offense of attempt burglary and not with the offense of burglary. It was therefore not necessary to allege all of the essential elements required in a burglary indictment.

The defendant was actually caught in the act of attempting to break into Sengs Food Market by prying the back door open. He not only plead guilty to the offense, he entered into a negotiated plea for a sentence of 1-4 years. In People v. Jones, 53 Ill.2d 460, we find that the State’s Attorney amended the indictment charging armed robbery of one individual by inserting in lieu thereof the name of another individual. While this case dealt primarily with the question of amending an indictment, the court held that:

“The liberalization of criminal pleading also reflects a lessening in importance of the indictment’s secondary functions. The indictment as a means of informing defendants of particulars concerning the case is now far overshadowed by the array of discovery procedures available to the defense. Similarly, the time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record. [Citation.] The primary safeguard of indictment by grand jmy, which remains secured to criminal defendants, is to protect individuals from the caprice of the public prosecutor. ‘The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.’ ”

The very same principle applies here. The defendant was not surprised; he may not be placed in jeopardy again, and he was not prejudiced by the failure of the indictment for attempt burglary to include the additional element of “intent to commit a felony or larceny therein.” We agree with the Supreme Court that the time has come when technicalities in indictments should not be used to circumvent a negotiated plea of guilty where there is no question of the guilt of the defendant.

The judgment of the trial court is affirmed.

Affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kurt Melander et al., Defendants-Appellants.
    (No. 72-31;
    Second District
    April 6, 1973.

      Paul C. Ross and Morton J. Rubin, both of Chicago, for appellants.
    William J. Scott, Attorney General, of Springfield, and Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

This is an appeal from the Circuit Court of Lake County where the trial court found that certain publications were obscene. There were three cases which were consolidated in the trial court and heard by the court. The trial court found that each of the four publications were obscene, found the defendants guilty of the offense of obscenity, and assessed a fine of $250 against Kurt Melander d/b/a King’s Food Store, a fine of $250 against Capitol News Agency, Inc., an Illinois Corporation, and a fine of $250 each against Affiliated Books Distributors Inc., an Illinois Corporation, and North Shore Distributors, Inc., an Illinois Corporation.

On January 2, 1969, two reporters for the Waukegan News Sun purchased one of the publications, “Climb Every Wanton” from a grill in North Chicago, Illinois, and the book “Dyke on the Loose” from a store in Gurnee, Illinois. It was stipulated that the defendant distributor, Capitol News Agency Inc., an Illinois Corporation, admitted the sale and delivery of the book “Climb Every Wanton.” It was also stipulated that the book “Dyke on the Loose” was sold and delivered by the defendants, the Affiliated Book Distributors, Inc., an Illinois Corporation, and North Shore Distributors Inc., an Illinois Corporation. It was further stipulated that Kurt Melander (d/b/a King’s Food Store) sold a number of publications including the magazine “Sensation” and the book “Horny Lifeguard.” The evidence deposition filed herein indicates they were purchased by an assistant State’s Attorney of Lake County.

The only issue presented in this case is whether or not the books “Homy Lifeguard”, “Climb Every Wanton”, “Dyke on the Loose”, and the magazine “Sensation” are obscene. The trial .court found that all four of the publications were obscene.

Counsel for the defendants has cited Roth v. United States (1957), 354 U.S.476, 485, 1 L.Ed.2d 1498, 1507, 77 S.Ct. 1304, and argues that the publications involved herein are constitutionally protected expressions. In Roth, the first premise laid down by the Supreme Court is “obscenity is not within the area of constitutionally protected speech or press.” The Supreme Court further stated in City of Chicago v. Geraci (1970), 46 Ill.2d 576, 578, 264 N.E.2d 153, 155:

“In a case of this nature, the court must make an independent constitutional judgment as to whether the publications in issue are obscene or constitutionally protected.”

We turn first to the magazine “Sensation.” The Supreme Court of Illinois in People v. Ridens (1972), 51 Ill.2d 410, 417, 282 N.E.2d 691, 695, considered a magazine of similar import to the one in evidence before us, and stated:

“The remaining issue for consideration is the propriety of the trial court’s judgment that these publications are obscene as a matter of law. The color photographs, of which these magazines are almost exclusively composed, portray nude males and females, engaged in seductive embraces, posed with their legs spread so as to focus attention on their genitals. Although none of the models portrayed is actually engaged in sexual activity, it is clear from some sequences of photographs that sexual activity is suggested and imminent. The models in many instances have their hands, or mouths, close to another’s genitals, suggestive of abnormal sexual conduct. The females are posed with their heads close to the male sex organ, and vice versa. In some of the pictures, several of tire naked males and females are photographed while lying on top of one another, and in other pictures, two females are shown suggestively embracing and fondling one male. In these pictures, the focal point is the genitals of the parties. We find that tire sole appeal of these magazines is to the prurient interests; the dominant theme of these publications is to a morbid interest in nudity and sex. The scenes shown and the detail in file photographs are patently offensive in that such depiction goes beyond the customary limits of candor in this State. Not one of these magazines has any literary or artistic merit and they are utterly without redeeming social value. They are all obscene.”

Examination of the magazine “Sensation” fits the description as set forth above by the Supreme Court almost exactly. We therefore find the same to be obscene and utterly without redeeming social value. See also City of Chicago v. Geraci (1973), 10 Ill.App.3d 688.

We have read the three books in question here and find that each of them is “utterly without redeeming social importance” as set forth in Roth, supra. We further find each of them to be a collection of chronicles of intercourse, masturbation, flagellation, fellatio, cunnilingus, lesbianism, rape, and murder, purely for its prurient appeal, held together by the merest modicum of story or plot. It is obvious that the books were written for the express purpose of setting forth the sexual activities that would appeal to the prurient interest of the reader and any attempt to find any socially redeeming value in any of the three books would be impossible. We therefore find the books, “Climb Every Wanton”, “Dyke on the Loose”, “Homy Lifeguard” and the magazine “Sensation” to be obscene.

The convictions of Kurt Melander (d/b/a King’s Food Store), Capitol News Agency, Inc., an Illinois Corporation Affiliated Book Distributors, Inc., an Illinois Corporation, and North Shore Distributors, Inc., an Illinois Corporation, are affirmed.

Judgments affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. JUSTICE ALLOY Mr. PRESIDING JUSTICE STOUDER

text:
      In re Estate of Herbert Harmston, Deceased—(Melvin R. Steen et al., Defendants-Appellants, v. Roderick J. Luther, Admr. of the Estate of Herbert Harmston, Deceased, Plaintiff-Appellee.)
    (No. 72-173;
    Third District
    February 23, 1973.

      Rehearing denied March 21, 1973.

      STOUDER, P. J., specially concurring.
    Louis E. Olivero, of Peru, for appellants.
    Louis J. Peron, of Spring Valley, James J. Duncan, of Peru, and Edwin B. Jones III, of Princeton, aU for appellee.
   Mr. JUSTICE ALLOY

dehvered the opinion of the court:

This is an appeal from an order or orders entered by the Circuit Court of Bureau County denying a petition of the administrator of the estate of Herbert Harmston, deceased, with respect to the sale of certain portions of real estate to appeUants, Melvin R. Steen and Linda D. Steen and, also, directing that the real estate be sold to another person, one of decedent’s heirs.

The Steens contend that the circuit court failed to foUow the provisions of the Probate Act relating to sales of decedent’s real estate. They request that the court reverse the order denying the administrator’s petition to seH real estate to them. They also request that upon such reversal, the proceedings be remanded to the circuit court with directions that the real estate be sold to the Steens, or, in the alternative, that the proceedings be remanded with directions that the property be sold, if at all, in accordance with the relevant provisions of the Probate Act., Ill. Rev. Stat. 1969, ch. 3, secs. 220 et seq.

Pertinent matters in the record relating to the question before this court, disclose that decedent Herbert Harmston, a resident of Bureau County, died intestate in August of 1970. He left surviving eight daughters and two sons as his only heirs, all of whom were made parties to the proceedings seeking sale of the real estate in question. The administrator’s petition for sale of the subject real estate to the Steens, recites that the Steens and a predecessor administrator, since removed prior to the filing of the petition had entered into an agreement for warranty deed whereby the property was to be sold to the Steens for the sum of $7515, and that the Steens paid $500 as a prefiminary payment on a contemplated sale. The agreement for warranty deed, attached to the petition as an exhibit, specifically provides that “this agreement is subject to approval by the circuit court, probate division, of Bureau County, Illinois.”

A hearing was had on the administrator’s petition, upon due notice, at which time one of the decedent’s heirs, Mary Klopcic, offered in open court, to purchase the subject real estate for $8100. The court then requested the appellants, the Steens, who were also present at the hearing, if they wanted to increase their offer to purchase, and when such invitation was declined, the court ordered that the administrator’s petition for sale to the Steens be denied and that their downpayment be returned, and further ordered that the property be sold to Mary Klopcic for $8100. The Steens filed a motion to vacate such order which was ultimately denied. Thereafter, the Steens filed their notice of appeal from the circuit court’s order denying their motion to vacate. While the hearing on the Steens motion to vacate was pending, the administrator filed a petition seeking approval of the sale to Mary Klopcic. On the same day the court denied the Steen motion to vacate the order directing the sale, the sale to Mary Klopcic was approved by the court.

It is clear that the trial cotut properly refused to confirm the sale to the Steens and that as a result of such refusal the Steens had no further status to object to the court orders entered ha the circuit court. As a consequence, the orders of the circuit court of Bureau County should clearly be affirmed. Because of the circumstances arising in this case, we feel that an analysis of the status of the Steens as appellants in this case is appropriate even though affirmative of the order of the court is clearly required.

We particularly note that the Steens are the only persons seeking to appeal from the orders of the court referred to. We note, also, that the only parties to the petition for sale to the Steens were the administrator of all of decedent’s heirs, as apparently the only persons claiming any interest in the subject real estate. (See: Ill. Rev. Stat. 1969, ch. 3, sec. 230.) Although the standing of the Steens to prosecute this appeal has not been questioned in the briefs before us, we believe that unless the Steens could rightfully be considered “aggrieved” by the order from which they seek to appeal, they must be deemed to have no such standing. While the language of section 329 of the Probate Act (Ill. Rev. Stat. 1969, ch. 3, sec. 329) purports to allow appeals from final orders of the circuit court entered in probate by any person who “considers himself aggrieved" thereby, such language has heretofore been construed as allowing appeals from such orders only by those who have been aggrieved in reality by the order in question. (Suntherker v. Richter, 261 Ill.App. 547, 549; Wallace v. Chicago & Erie Stove Co., 46 Ill.App. 571, 575; See also dicta in Lane v. Thorn, 103 Ill.App. 215, 218, and Mayrand v. Mayrand, 96 Ill.App. 478, 480.) Typically in the Suntherker case referred to it was held that an alleged creditor of an estate who had not filed a claim in the administration proceedings could not properly appeal from an order entered therein refusing to remove an administrator. The Supreme Court of this State has expressly stated that a person is prejudiced or aggrieved in the legal sense when a legal right is invaded by an act or order complained of or his pecuniary interest is directly affected by the order in question. “Aggrieved” means having a substantial grievance; a denial of some personal or property right. (American Surety Co. v. Jones, 384 Ill. 222, 229; Glos v. People, 259 Ill. 332, 340.) Although we have been directed to no Illinois authority, nor have we found any specifically holding that a prospective purchaser of a decedent’s real estate named in a petition for sale thereof, may not appeal, as a person “aggrieved”, from an order denying such petition, it has been held by courts of other states that unaccepted bidders at judicial sales do not have sufficient juridical interest in the subject property which would allow them to appeal from orders relating to the sale or contemplated sale. (In re Farawell’s Estate, 315 Mich. 526, 24 N.W.2d 91; Dean v. Clapp, 221 Iowa 1270, 268 N.W. 56; Harduval v. Merchants’ & Mechanics’ Trust & Savings Bank, 204 Ala. 187, 86 So. 52.) See also: Spangelo v. Northern Dakota Ry., 276 Fed. 26, where it was held that after sale by a special master and disapproval of the sale by the court on the ground that the bid was inadequate, the unsuccessful bidder was not a party and could not properly appeal from the order of disapproval.

On the basis of the record, therefore, the Steens are, in legal contemplation, merely unaccepted bidders for the subject real estate since their proposed agreement for warranty deed was made expressly subject to the approval of the court, as it would have been had there been no such recital in tire agreement. It is clear that until such time as the contemplated sale was approved by the court, the Steens could have acquired no vested rights in the subject real estate. (See section 229 of the Probate Act, requiring that the petition to sell real estate have attached thereto the “proposed” contract for sale. Ill. Rev. Stat. 1969, ch. 3, sec. 229.) It is also apparent that even if the circuit courts order were reversed in this cause we would be unable to order the property sold to the Steens. The circuit court is under a duty to exercise its discretion in these matters and if the property is to be sold by an estate it is incumbent upon the court to insure that the terms of the sale are those which are most advantageous to the beneficiaries, and perhaps to creditors, of the estate. On the basis of the record, therefore, we do not believe that the Steens were “aggrieved” as required by the Probate Act so as to vest in them a right to appeal from the order in question. If a motion to dismiss the appeal had been made we believe it would have been appropriate to grant such motion. Under the circumstances, however, it is clear that the orders of the circuit court of Bureau County should be and are affirmed.

Affirmed.

DIXON, J., concurs.

Mr. PRESIDING JUSTICE STOUDER

specially concurring:

I agree with the result reached by the majority of the court to the extent that they affirm the judgment of the trial court on its merits. I disagree with the majority’s holding that appellant lacks standing to appeal the judgment of the trial court and if such holding be regarded as the rule in this case then consistently the appeal should have been dismissed rather than judgment affirmed. Where a court is requested to approve a proposed sale initiated by or on behalf of an officer of the court the issue is presented as to whether the transaction is in accord with established legal principles. Where, as in this case, the administrator is seeking the approval of a proposed private sale the court must determine whether such proposed sale is for the best interest of the estate i.e. is the price reasonable under the circumstances. Where a private sale is proposed the reasonableness of the price is the principal issue, taking into account of course the due diligence of the officer of the court in securing offers. Consequently if at such hearing the court learns that a higher price can be obtained for the properly the court is justified in concluding that the proposed private sale is not for a reasonable price price and not in the best interests of the estate. That the appellant may have been asked concerning his intentions regarding a higher price for the property does not convert the proceeding into a courtroom auction as claimed by appellant but is germaine to the issue before the court namely the reasonableness of the price offered by the proposed buyer. Consequently I believe the court’s action in disapproving the sale to appellant and ordering a resale is in accord with the evidence.

The major thrust of the majority opinion is that appellant lacks status to seek a review of the trial court’s judgment because he is not “aggrieved” by such judgment. This issue was not raised in the briefs of the parties nor does it appear to have been raised in any prior Illinois case. Concededly this court may raise issues not called to our attention by the parties but it seems to me that this should be done only where there are clear compelling reasons for considering the issue. I find no compelling reasons for considering this issue on our own initiative particularly because an appellant situated as is the one in this case, has been considered without question to have status to seek review of a trial judgment since at least 1854 when Reynolds v. Wilson, 15 Ill. 394, was decided. Even though I doubt the wisdom or necessity of raising this issue on our own initiative, it is my further conclusion that the position taken by the majority is unwise and is not supported by the persuasive analogies of cases of this State or of other states.

As a matter of legislative construction the existence for more than one hundred years of the right of an unsuccessful offeror or bidder to seek judicial review without any change or limitation by the legislature is a substantial reason for concluding there is nothing legally doubtful about appellant’s status. I shall mention only a few older cases in which the trial court’s judgment disapproving a judicial sale was considered on its merits pursuant to review instituted by the unsuccessful buyer. (See Reynolds v. Wilson (1854), 15 Ill. 394; Jennings v. Dunphy (1898), 174 Ill. 86, 50 N.E. 1045; Quick v. Collins (1902), 197 Ill. 394; 64 N.E. 288 and McCallum v. Chi. Title & Trust Co. (1903), 203 Ill. 142, 67 N.E. 823.) In each of the foregoing cases the trial court’s action in disapproving the sale was affirmed, the standing of the appellant to maintain the appeal not being raised.

A master’s sale pursuant to a partition decree was involved in Quigley v. Breckenridge (1899), 180 Ill. 627, 54 N.E. 580. The trial court refused to approve the master’s report of the sale and the bidder appealed this time unsuccessfully. On appeal the Supreme Court concluded there was no evidence of fraud, of an agreement to chill the bidding at the auction sale or of any improper conduct involved in the sale procedure. Of more significance to the issue involved in this case is the Court’s observation that “At any rate, mere inadequacy of price * * # will not justify a court in setting aside the sale, so as to deprive the vendee of the benefit of his purchase, unless such inadequacy amounts to evidence of fraud. Here there was not such inadequacy as to amount to proof of fraud. Public policy requires that there should be stability in judicial sales, and that they should not be disturbed for slight causes; otherwise, property cannot be expected to bring its value at such sales. * # * Giving our full adherence to the doctrine that a court of chancery has large discretion in the matter of these sales, and that the sale is in itself incomplete until it is confirmed, and confers no right in the land upon the purchaser, we are yet of the opinion that, upon this record, the sale set aside by the court below was fair, and should have been allowed to stand.” To the same effect is Evans v. Hunold, 393 Ill. 195, 65 N.E.2d 173.

If the proposed purchaser is entitled to the benefit of his bargain unless contrary to . some principle of law, then the judgment of a trial court disapproving the sale deprives him of a direct substantial advantage or benefit. In discussing judicial sales which require court approval before they can be considered consummated the analogy has often been suggested that the court is a vendor and the proposed purchaser is an offeror. Based on such analogy it is then suggested that until and unless the offer is accepted (approved) by the court the offeror has no interest in the land and no enforcable contract. While this analogy may be helpful in discussing some aspects of judicial sales, the analogy is not literally true and there are substantial and important differences between a judicial sale and a non judicial sale. The court is not the owner of the land as is the usual vendor and the court in considering whether a sale should be approved is exercising a judicial discretion and not the personal discretion which an individual owner or offeree may exercise in the conduct of his personal affairs. Whether or not the proposed purchaser has an interest in the land or a binding contract before the court is requested to approve the sale does not excuse the court from exercising its judicial discretion, that is the court must act reasonably, fairly and on the basis of evidence presented in open court. (Ryerson v. Apland, 378 Ill. 472, 38 N.E.2d 712). If the court in the view of the proposed purchaser acts arbitrarily, unreasonably or contrary to the evidence or to law the action of the trial court is and should be. subject to review on appeal.

The two principal cases relied upon by the majority (Suntherker v. Richter, 261 Ill.App. 547 and Wallace v. Chicago & Erie Stove Co., 46 Ill.App. 571), as tending to support their holding, are in my judgment more appropriately supportative of the position I am taking. In each of the cases a purported creditor of an estate whose claim had not been filed was held not to be aggrieved by judgments refusing to set aside the appointment of an administrator or determining the propriety of an inventory. The gist of these decisions is that since the purported creditors had not filed their claims they were not entitled to participate in the assets of the estate and hence the reversal of the trial court judgment could be of no benefit to them. If the reasoning of the foregoing cases is applied to the facts of this case for the reasons urged by the majority we would reach the curious result that if the judgment of the trial court was reversed and the sale approved such contrary judgment could be of no benefit to the purposed purchaser. Such a conclusion is untenable because approval of the sale would be of direct benefit to the appellant.

The cases from other jurisdictions which the majority has cited in support of their holding are not persuasive to me. Each of the cases in varying degree relies on tire mechanical application of the rule discussed earlier in this opinion that a proposed purchaser has no right in the land until the sale has been approved. As I have already observed I neither believe that the rule supports the result nor do I believe it to be an adequate reason for refusing judicial review.

In summary I believe the appellant has standing to maintain this appeal and I disagree with the holding of the majority to the contrary whether the rule announced be considered the rule of the case or dicta. Otherwise I would affirm the judgment of the trial court because I believe no error was committed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Redden, Defendant-Appellant.
    (No. 72-131;
    Third District
    April 4, 1973.

      Stephen P. Hurley, of Defender Project, of Ottawa, for appellant.
    Joseph C. Polito, Assistant State’s Attorney, of Joliet, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant WHliam Redden appeals from a sentence imposed upon him for aggravated battery foHowing a jury trial in the circuit court of Will County, where the jury found him guilty. He was sentenced to a term of not less than one nor more than six years in the Illinois State Penitentiary.

It appears from the record that defendant William Redden picked up Brian Hoag, the 18-month-old son of his fiancee whom he later married. The child was at the grandmothers house. Defendant was to take care of the child during the day and was with him from 10:00 A.M. until 2:45 P.M. on August 9, 1971, when he brought Brian back to the grandmother’s house.

The grandmother testified-that when Brian was returned to her she noticed that he had blisters on his lips but she noticed nothing else unusual about him and that he was walking. She also stated that about 3:30 P.M. she bathed Brian’s face and put vaseline on the blisters, gave him a glass of juice and put him to bed. It appears that after they arrived at the house, defendant and Brian went out in the back yard and played with kittens briefly and then, when defendant got ready to leave, Brian and the grandmother walked over to the car with defendant to say good-by. It appears that about 6:30 P.M. when Brian awoke from his nap, the grandmother undressed him and gave him a bath, and it was then for the first time that she noticed that there were bruises and burns on his body and that his genital area was badly swollen. She took the boy to St. Joseph’s Hospital where he was examined by. Dr. Fahrner. The doctor testified that he examined Brian between 8:30 and 9:00 P.M. on August 9, 1971, and found blisters on the lips, multiple bruises and burns on the body, and extreme swelling in the genital area. The swelling of the penis and scrotum was approximately to three times the normal size. The doctor stated that the injuries in the genital area could be as new as an hour and a half and probably not more than six hours old. It was the doctor’s opinion that the injuries were the result of multiple blows and that the child would have been in great pain and would not have been able to walk because of the pain. It was estimated by the doctor that the maximum swelling would have occurred between one and a half hour and up to three hours after the injury was inflicted.

Defendant was arrested without a warrant at his home on Monday night, August 9, 1971. He was then taken to the county police station and advised of his constitutional rights and questioned from 12:20 A.M. until about 4:00 A.M. by two officers. Defendant’s mother and father were at the police station during the entire period but were not allowed to talk with their son. At 4:00 A.M. an officer told them they should go home because defendant was going to be kept in custody overnight and that they should return the next day at 1:30 when defendant would be taken before a magistrate.

The following day, after defendant was again advised of his constitutional rights, the questioning was resumed at 12:30 P.M. by two different police officers. During the interrogation, one police officer, Officer Sicinski, came into the room and asked defendant if he would go to John Reid & Associates in Chicago to take a polygraph or “lie detector” test. The officer told him that his willingness to take the lie detector test would give an indication of his guilt or innocence. At that point, defendant stated that he wanted to talk to his attorney and have him advise defendant whether or not he should go. The officer told him that if he wanted to talk to his attorney, “that was fine,” he could talk to him and take the advice of his attorney. The officer also stated that if defendant voluntarily agreed to go with him he would be released at once and could return of his own volition the next morning for transportation to the lie detector office but that if he did not want to volunteer to go up to the John Reid office he would be held in jail as charged. Defendant agreed to go to Chicago and was released to return to his home.

Defendant returned to the courthouse the next day where the officer asked him if he was still willing to go to Chicago for the lie detector test and he replied that he was. The officer then drove him to the office at which the lie detector test was to be conducted and left him with a Mr. Hunter, a man who was not a police officer, but in the private business of conducting polygraph tests. Defendant was advised and reminded immediately prior to the tests in Chicago of his constitutional rights. Defendant then went into another room with Mr. Hunter, and out of the presence of the police officer, and was interrogated for about an hour. Defendant made an oral confession that he had beaten the child and repeated this confession to Officer Sicinski.

Defendant stated he struck the child in an effort to get the child to call him “daddy” or “Bill” and became angered when the child did not talk to him or acknowledge him. He said that he slapped the child and struck him about the face and body, burned him with a match and kicked him once in the groin area. On each of the three days prior to the beginning of an interrogation, defendant was read his Miranda rights and he said he thought he understood his rights, although on the written waiver in response to the statement that he would be furnished an attorney if he could not afford one, he wrote in the space indicating whether he understood, “Yes, I think.”

A motion to suppress the confession was made by defendant which was denied by the court. The oral confession that defendant had caused the injuries to the child was admitted in evidence at the trial. Defendant testified at the trial that the first night he was in the pohce station he was told that the child was on the critical list and was not expected to live; that defendant had never been in jail before and was frightened and had not gotten any sleep while in jail. He said thereafter, before his confession, that he was told that the child was off the critical list. He stated, also, that he had no recollection of injuring the child and confessed because everyone told him he must have done it since no one else was with the child at the time.

On appeal in this court, defendant raises two issues. First, that it was reversible error to deny defendant’s motion to suppress the confession, since defendant asserts that the confession occurred after he had been arrested without a warrant and interrogated for two days before being brought before a judge and after his request to consult with an attorney was ignored by the police. The second contention is that the prosecution failed to prove defendant’s guilt beyond a reasonable doubt.

It appears from the record that the oral confession made by the defendant to Mr. Hunter and thereafter again to Officer Sicinski, was not the product of an in-custody interrogation since defendant voluntarily appeared for the polygraph test after he had been released. He had been fully advised of his constitutional rights a number of times. Defendant had the opportunity to consult with counsel prior to his interrogation. As indicated in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, a custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. While defendant had been in custody he was released the day before he came in voluntarily to go to Chicago for the polygraph test. He had been away from the police officers for approximately 20 hours. He had ample opportunity to consult with an attorney in the intervening period. While he was at home with his parents, he said he sat around and had coffee with his parents and did not try to get in touch with an attorney although his parents made some such effort. At the trial of this cause he was represented by private counsel and posted a substantial cash bond in the trial court.

When he met the police sergeant, Sicinski, at the courthouse, he was asked whether he was still willing to go to Chicago and said that he was. At the Chicago office of John Reid & Associates, Mr. Fred Hunter of tire John Reid company had a conversation with him during which defendant confessed to the beating of the child, Brian Hoag. Mr. Hunter was a private citizen and he and Redden were alone at the time Redden originally confessed. The location was a private office in a private building and no police officer was present in the room. It was only after he had originally confessed to Mr. Hunter, that Redden was asked to repeat his story in front of Officer Sicinski. Redden was not under arrest and not on the jail or police property at the time he made his confession to Mr. Hunter. It is true that the police officer was waiting in the outer room but he was not in the room in which defendant was being questioned.

Even if defendant was considered to be in custody at the time of his confession, the record indicates that his constitutional rights had been fully explained to him and were effectively waived by him. He did not confess during the prior interrogation in the presence of the police. When he was arrested, he was orally advised of his constitutional rights by one of the police officers and he said he understood his rights. Shortly thereafter at 12:20 A.M. he was again advised of his rights by two of the police officers prior to the questioning and this time he was also handed a written form which he signed, which outlined his rights. He was then questioned for approximately two and a half hours after waiving his constitutional rights. Defendant remained in a cell that night but was not questioned until 12:30 P.M. the following day. Before this interrogation, two deputies again advised him of his constitutional rights at which time defendant also said he understood and did not qualify his answer as to understanding his constitutional rights in any manner. He was then questioned for approximately two and a half hours and was released from custody after making arrangements for a polygraph test as we have indicated. He appeared the next day, some 20 hours later, and agreed that he would go to Chicago for the purpose of having a lie detector test made. He was again advised of his constitutional rights prior to questioning by Mr. Hunter and waived them at that time. In all, he had been advised of his constitutional rights a total of four times.

Defendant Redden had been released on August 10, 1971, at approximately 3:00 P.M. without charge and no bail was required to be set. We see no violation of defendant’s rights in the fact that he was not then taken before a judge. He was then released from custody without charge when the arrangement was made to take the lie detector test the following day. Also, as indicated in People v. Novak, 33 Ill.2d 343, 348, 211 N.E.2d 235, the so-called McNabb-Mallory rule which renders inadmissible confessions taken in violation of the statute requiring appearance before a magistrate would not be applicable in the instant case, since the court in the Novak case concluded that “illegal detention” in and of itself does not render inadmissible a confession given during a period of illegal detention, if the confession is voluntarily given. Although it appears that the confession was not a product of an in-custody interrogation, even if we were to assume that the presence of the police officer in the outer office while the polygraph test was being made could be construed as creating a custodial situation, the confession would still be admissible, since defendant’s constitutional rights were clearly waived and the confession was obviously voluntary. We, therefore, conclude that the court did not abuse its discretion in denying the motion to suppress the confession.

On the issue of whether defendant was proven guilty beyond a reasonable doubt, we agree that a confession standing alone would not be sufficient for a conviction without any corroborating evidence, but the corroboration is not required to be sufficient standing alone to support a conviction independent of the confession. People v. Cunningham, 122 Ill.App.2d 222, 258 N.E.2d 145; People v. Hulet, 66 Ill.App.2d 194, 214 N.E.2d 299.

In the cause before us, Dr. Fahmer testified that the injuries to Brian Hoag could not have occurred in an accidental manner. He also indicated that the injuries could not have been self-inflicted and that the injuries resulted from multiple blows. The record shows that the child was in the custody of defendant from 10:00 A.M. until about 2:45 P.M. and that the child did not have blisters on his lips in the morning, but that he had them on his lips in the afternoon when defendant brought him home. The grandmother also testified that when she undressed the child at about 6:30 P.M. she found the bruises on his body, the bums on his stomach, and that the genital area was badly swollen and bruised. He was taken to St. Joseph’s Hospital where he stayed for 16 days.

Another significant bit of evidence was the testimony of Naida Hoag Redden, who was the defendant’s wife at the time of the trial and who is the mother of the child. She stated that defendant admitted to her before the polygraph test that he had inflicted the injuries on Brian Hoag. It also appears from the record that there was no express denial that defendant beat the child, but only an expression that the defendant did not “remember.”

Defendant argues that Dr. Fahrner’s estimate of the time of the injuries would not allow defendant to have caused the injuries because of the time elements involved. We do not believe the record sustains this position, since the doctor’s statement involved an estimate, and his estimate is not inconsistent with the injuries and facts as disclosed in the trial. Specifically, defendant contends that the pain after the injuries would not have allowed the child to walk as he was doing when defendant brought him home. The pain would have gotten worse as the swelling in the genital region increased and that swelling, the doctor stated, would take place one half hour to three hours after the injury. It is clear that the child would have been perfectly capable of walking based on the doctor’s statement and it is also apparent from what the grandmother stated that the child had a high tolerance for pain.

It is, therefore, our conclusion upon review of the evidence that there was sufficient evidence to sustain defendant’s conviction. Certainly we would not be justified in concluding that the verdict was clearly contrary to the evidence.

For the reasons stated, the judgment of the circuit court of Will County will be affirmed.

Judgment affirmed.

DIXON and SCOTT, JJ., concur.