author: MR. PRESIDING JUSTICE BRYANT LYONS, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Williams, Defendant-Appellant.
    Gen. No. 50,323.
    First District, Second Division.
    April 12, 1966.
    Rehearing denied June 9, 1966.

      E. Eugene Pincham and Charles B. Evins, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a finding and judgment entered in the Circuit Court of Cook County, January 7, 1965, wherein the appellant was found guilty of unlawful use of a weapon in violation of Ill Rev Stats 1963, c 38, § 24-1. The sole point raised in this appeal is that the complaint was defective in that venue was not alleged. The complaint is as follows:

JOSEPH J. MCDONOUGH, CLERK OF THE CIRCUIT COURT OF COOK COUNTY

STATE OF ILLINOIS \ COUNTY OF COOK J ss

THE CIRCUIT COURT OF COOK COUNTY NO.

COMPLAINT

GENE MOTYKA, complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that JAMES WILLIAMS has, on or about Jan 6, 1965 at 900 S. Winchester committed the offense of UNLAWFUL USE OF WEAPONS in that he carried a dangerous knife concealed in his boot with the intent to use said knife unlawfully against another, in violation of Chapter 38 Section 24-1A2 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.

(s) GeneMotyka (Complainant)

STATE OF ILLINOIS ) COUNTY OF COOK J ss

GENEMOTYKA

being duly sworn, on his oath, deposes and says that he has read the foregoing complaint by him subscribed and that the same is true.

(s) GeneMotyka

(The underlined [italicized] portions are those portions which were filled in on the complaint form.)

The appellant’s objection is that the complaint does not state “the county or district in which the offense is alleged to have been committed.” Article 2, sec 9, Ill Constitution. The place of the offense is alleged as 900 S. Winchester rather than Cook County. It has not been argued at any point during this appeal that the offense did not take place in Cook County, the only point made being that the appellant had a Constitutional right to have the complaint allege Cook County. It is argued that the fact the words Cook County appear on the form cannot cure the defect because a caption cannot be used as part of the complaint. The case is brought to us on the common law record; we do not have a transcript of the proceedings at the trial. Nothing appears in the record, nor has any point been made here that there was an objection as to venue stated in the complaint in the court below. The question has been raised for the first time on this appeal.

We do not think that the complaint shows a substantial deficiency so as to make the judgment of conviction void. People v. Pride, 16 Ill2d 82, 156 NE2d 551 (1959) held that venue was sufficiently established when the street address was shown where the conclusion could be reached with no reasonable doubt that the offense occurred in Cook County.

“The statement attributed to Mr. Justice Holmes that judges need not be more naive than other men is particularly appropriate. They should use their common sense, common observation and general knowledge in considering evidence and drawing the proper inference from it. What is obvious to the layman should not be confounded by labeling it indefinite to the courts.
“When a person is within a city or village and is talking with another person within the same city or village, he will describe a location within the said city or village by merely saying at the corner of such and such streets, or within the so-many-hundred block of such street or give the exact street and number. The person who hears this incomplete address knows to what city and State the speaker is referring, since this is the common way (though not the best way) to describe locations. If the location is in some other city or village than where the speaker and listener are, the name of that other city or village will often be given for clarification. This incomplete manner of description is also common when referring to a city or village. Thus, when persons in and around Springfield, Illinois, speak to each other of Springfield they naturally mean Springfield, Illinois; if they mean Massachusetts or Missouri, they say Springfield, Massachusetts, or Springfield, Missouri.
“This method of describing locations is not used solely by the man on the street. Our city newspapers when reporting an occurrence within the city of publication merely state the street and street number where it happened. If the occurrance [sic] was outside the city, the city wherein it happened is named either in the article or the date line. There is no reasonable doubt in anyone’s mind who reads the newspaper just where the occurrence took place. Local television news-broadcasters use a like description in giving locations, and business men sponsoring local television programs will often so identify the location of their business establishment.
“Describing a location by street and number is so much a part of our every day life that it cannot be ignored. A witness's testimony should not be considered in a vacuum divorced from our general knowledge as to the manner in which things are said. And so, common experience dictates that a witness testifying in Chicago, when speaking of 8900 S. Anthony Avenue, is speaking of 8900 S. Anthony Avenue in Chicago, Cook County, Illinois, although there very well may be an 8900 S. Anthony Avenue in some city other than Chicago, in some county other than Cook and in some State other than Illinois.” People v. Pride, supra, pp 77, 78 of the Illinois Reporter, pp 554, 555 of the regional reporter.

While it is true that the Pride decision deals with the proof of venue at a trial, rather than an allegation of venue in a complaint, the reasoning is applicable in either instance. The caption of the complaint shows that it was sworn to in Cook County. It is only fair to assume that a person swearing to a complaint in Cook County and speaking of 900 S. Winchester, is speaking of 900 S. Winchester in Cook County.

We also point out that there was no question raised before this appeal was taken concerning the location of 900 S. Winchester. The purpose of requiring exactness in a complaint or indictment is to allow the defendant to prepare adequately for trial. There appears not an iota of evidence indicating that this appellant was in any way inconvenienced by the omission of Cook County from that portion of the complaint where the address was filled in.

There is no doubt that the elements of a crime were properly alleged, the only complaint here being that venue was not correctly set forth. Our Supreme Court in People v. Blanchett, 33 Ill2d 97, 212 NE2d 97, discussed what was necessary to allege an offense under the new Code of Criminal Procedure and noted, “It is also indicated that such matters as the time and place of the offense are ‘subsidiary matters,’ which are to be distinguished from the substantive matter of charging an offense.” People v. Blanchett, supra, at p 98. We believe that as long as the offense was properly charged, and as long as no question was raised in the court below concerning the complaint, it is unnecessary to reverse the judgment on appeal.

The defendant did not bring a report of proceedings. A reviewing court will indulge every presumption in favor of the judgment and that the omitted part of the record (report of proceeding) contains that which justified the action of the court. In the absence of the report of proceedings we assume that the testimony showed that the offense was committed in Cook County, that the address given in the information, 900 S. Winchester Avenue was within the jurisdiction of the court and that the evidence supported the finding and judgment that the defendant was guilty of the offense. The nature and element of the offense were properly charged in the information as required by Section 111-3 of the Code of Criminal Procedure. This section also requires that the information state the time and place of the offense as definitely as can be done. Article 114 requires a written motion to dismiss of the defendant made prior to the trial on the ground that the county was an improper place of trial. Sections 116-1 and 116-2 require a written motion for a new trial or in arrest of judgment. The defendant did not make a motion prior to the trial or subsequent to the trial. Had he made a motion raising the point he now urges the State’s Attorney would have had an opportunity to amend the information. Not having done so when he should have done so the defendant cannot complain and he waived the point. He was tried before a judge of the county in which the offense was alleged to have been committed. Therefore his constitutional rights were not violated. We think that had the motion been made in due time it would have been the duty of the court to sustain the motion; at which time undoubtedly the State’s Attorney would have moved to amend by stating the county.

We also note the cases cited by the appellant for the proposition that a caption cannot be read as part of the complaint are distinguishable from the case at bar. People v. Shaw, 300 Ill 451, 133 NE 208 (1921) dealt with a situation where the caption of an indictment gave the date as 1901 while the body of the indictment gave the true date, 1920. The court ruled that as between the two dates, the date in the body of the indictment controlled. In People v. Sellers, 30 Ill2d 221, 196 NE2d 481 (1964), the Supreme Court found that a caption “Burglary, etc.” was not too indefinite where the charges were particularized in the body of the indictment. In People v. George, 167 Ill 447, 47 NE 741 (1897) there was an error in the caption which stated that the case appeared in the March 1806 term rather than 1896. The court held that the body of the indictment controlled over the caption.

We have found no case which has held that the venue requirement cannot be derived from the caption where there is no conflict between the caption of an indictment or complaint and the body. It would seem, therefore, that if there is in fact a requirement that the county of the offense be alleged in the complaint and that such a defect is not waivable, then the county is supplied by the caption. The words Cook County appear four times on the complaint. We see no reason to pretend that they are not there.

We are aware that this opinion is not in accord with that handed down by another division of this district, People v. Hill, 68 Ill App2d 369, 216 NE2d 212, filed February 3, 1966, but for the reasons set forth above, we find ourselves unable to agree with our brethren on this matter. We feel the judgment should be affirmed.

Judgment affirmed.

BURKE, J., concurs.

LYONS, J.,

dissenting.

The only issue to be decided in the instant case is whether the failure to state a City, County or State, in the body of the complaint constitutes a jurisdictional defect. I am of the opinion it does. Because it is a jurisdictional defect, it cannot be waived by defendant and may be brought on appeal for the first time. I feel that People v. Hill, 68 Ill App2d 369, 216 NE2d 212, filed February 3, 1966, cited in the majority opinion, is dispositive of the remaining issues and for the reasons given in that case, dissent from the result reached by the majority.

On Petition for Rehearing

The appellant has argued both in his original appeal and in his petition for rehearing that the complaint was filed in the Municipal Court of Chicago. The new judicial article which went into effect at the beginning of the year 1964, makes no provision for a Municipal Court of Chicago. The complaint in this matter was filed January 7, 1965 — over a year after the Municipal Court was abolished. As the complaint shows, it was filed in the Circuit Court of Cook County.

We have read the appellant’s petition for rehearing and considered therein. We adhere to our original opinion and affirm the judgment of the Circuit Court.

Petition denied, judgment affirmed.

BURKE, J., concurs.

LYONS, J., dissents.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Claude Williams, Plaintiff in Error.
    Gen. No. 50,336.
    First District, Third Division.
    March 10, 1966.

      Sheldon Brottman, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This case involves a judgment of conviction in the criminal court of Cook County of defendant, Claude Williams, for the crimes of burglary and armed robbery, for which he was sentenced to a term of not less than three years nor more than ten years for each offense in the Illinois State Penitentiary. The sentences were ordered to run concurrently. The causes were tried by the court without a jury. The charges were contained in separate indictments, which indictments were consolidated for the trial.

The defendant raises the point that the evidence adduced by the People in these causes to prove the identity of the defendant as the person who committed the crimes charged is “weak, contrary and unreliable,” compelling reversal of the convictions.

On November 17,1961, during the early morning hours, the C & F Lounge, a tavern, was burglarized. Thomas Cherry, the night watchman, was in a booth at the rear of the tavern sleeping. At about 1:30 a. m. on that day, Curry, the bartender, and Fields, the owner, left the tavern, locking Cherry inside. Fields had given Cherry a gun for the protection of the tavern. After Curry and Fields left the tavern, Cherry cleaned up and then went to sleep. Later Cherry was awakened by the sound of bottles clicking together. As he sat up there was a man standing alongside of him and another man was in the front of the tavern. The man standing alongside of Cherry told the man in the front that Cherry was awake. The man in the front started to walk towards Cherry and he was identified as the defendant, Claude Williams. The defendant, while walking toward Cherry, was observed by Cherry when he was no more than ten feet away. There was a flashing white neon sign three and one-half to four feet long over the bar. Cherry was tied by the man standing alongside of him, and his pockets were emptied and his wallet taken. He had the gun in his coat, but as he was being tied up by the man it fell to the floor. The man, whom Cherry identified as the defendant, told the other man in the tavern to keep Cherry’s head down. The men remained in the tavern about fifteen minutes and it sounded to Cherry as if they were stacking bottles in cases. After the men left Cherry got loose and called Curry, the bartender. Cherry also examined the premises and found that the whiskey was gone, the cigarette machine open and the coin box on the floor. The gun which had fallen out of Cherry’s pocket was also gone.

The defendant was arrested on November 17, 1961, some nineteen hours following the robbery and burglary, at an apartment where his wife was then living.

A witness for the People, Dorothy Gilbert, testified that Louise Williams, the wife of the defendant, had called the police to the apartment. Dorothy Gilbert also testified that the defendant had brought a gun to her home on the evening of November 17, 1961, and that two police officers came to her home that evening, one of whom was Officer Bouey. She gave him the gun the defendant brought to her home. She also testified that Claude Williams had had such a gun when he was at her house that Friday night and that he had put the gun in his wife’s lap while they were in the front room. They both went into the witness’ bedroom with it. When the defendant was ready to go he asked his wife for the gun. The witness testified that Williams’ wife told him to see the “houselady.” The witness then went into the bedroom and gave the gun back to the defendant. While they were standing in the room talking the police knocked on the door and the defendant gave her “back the gun in my lap. I dropped it in the dresser.” She testified that she took the police officers into the bedroom and gave the gun to them. The gun exhibited in court looked like the one she gave to him.

Curry, the bartender, testified that when he had locked the tavern door there was whiskey at the bar and the cigarette machine was closed.

Fields, the owner of the tavern, testified that the gun introduced into evidence was the same gun that he had given to Cherry. He identified the gun by the serial number, and also testified that five cases of whiskey were taken and the back door of the tavern was broken off its hinges.

The defendant testified that between 11:00 p. m. on November 16, 1961, and 8:00 a. m. on November 17, 1961, he was home in bed. He did not break into the C & F Lounge and did not rob Cherry. He admitted seeing his wife on November 17, 1961, at Mrs. Gilbert’s apartment and that he gave Mrs. Gilbert the gun he had with him. He testified that People’s exhibit No. 1 (the gun) looked something like the gun he brought with him. He further stated that he bought the gun a week earlier from Son Williams, who is living in Mississippi. He was arrested on the 17th of November and taken to the police station. He was put in a lineup at the station about 4:00 p. m. with six or eight other men. He testified that he saw Cherry at the station on the 17th with two officers while they were sitting there talking. This statement was denied by Cherry, who stated that he had not seen the defendant at the station prior to the lineup. The defendant further testified that he had purchased the gun from Son Williams, a cousin, a week prior to the burglary, but when asked if he had made the following statement: “I got the gun on the morning of the 17th of November, 1961. I got it from my cousin, Son Williams. He gave it to me to sell for him,” he answered: “I did.”

The defense called a Mrs. Johnson, who, on an offer of proof, would testify that she talked with someone who purported to be Thomas Cherry on the telephone on February 2, 1962. That the person with whom she talked said he had his head down all the time during the burglary and robbery and that he had never seen anyone. Cherry denied ever having made the statement that he had not seen anyone at the time of the burglary and robbery but did admit that some woman had called him on the phone and questioned him about the burglary and robbery.

Officer Bouey, on behalf of the State, testified that on November 17, 1961, he went to 3928 West 19th Street at 11:40 p. m. and saw Mrs. Gilbert. She took him in and pointed to the defendant, saying he had two guns. Officer Bouey went with her into the front room and she gave him the two guns; that the gun offered in evidence as People’s exhibit No. 1 was one of the guns he had received from Mrs. Gilbert. He identified the weapon by his initials which he had scratched thereon when he received the gun from Mrs. Gilbert. The People thereafter introduced a prior conviction for burglary in the state of Mississippi for which the defendant was sentenced for three years in the State Penitentiary.

It has been repeatedly held that the testimony of one witness alone, if positive and credible, is sufficient to convict, even though such testimony be contradicted by the accused.

In People v. Owens, 23 Ill2d 534, 179 NE2d 630, the court held that the requirement that the defendant’s guilt be proved beyond a reasonable doubt did not mean that the trier of the fact must disregard the inferences that flow naturally from the evidence before it. In that case it was also held that the trier of the fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. (People v. Sullivan, 22 Ill2d 122, 124, 174 NE2d 860; People v. Russell, 17 Ill2d 328, 161 NE2d 309.

The defendant cites People v. Donald, 29 Ill2d 283, 194 NE2d 227, in support of his statement that in weighing evidence of identification, the attendant circumstances, along with the probability or improbability of an adequate opportunity for a definite identification must be considered. It is also stated in that case that the positive identification of one witness who had ample opportunity for observation may be sufficient to support a conviction even though such testimony is contradicted by the accused.

The defendant also cites People v. Peck, 358 Ill 642, 193 NE 609; People v. Fiorita, 339 Ill 78, 170 NE 690, in support of the proposition that the burden was on the People not only to prove, beyond a reasonable doubt, the commission of the crime charged, but they were further required to prove in the same degree that defendant was the person who committed it.

In the instant case the testimony of the witness Cherry as to identification is not improbable and it was positive. The tavern was sufficiently lighted by the neon sign above the bar to afford Cherry an opportunity to see and identify the defendant. Also, Cherry, himself, testified that he saw him for a full minute. There was no question but that his testimony as to identification was positive and specific. It was not broken down on cross-examination, and where a case is tried by the court without a jury it is the office of the trial court to determine the credibility of the witnesses, and the weight to be afforded their testimony, and where the evidence is merely conflicting, an Appellate Court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216, 195 NE2d 631; People v. McCreary, 29 Ill2d 295, 194 NE2d 233; People v. Dillon, 24 Ill2d 122, 180 NE2d 503.

Again the courts have held that identification need not be positive to support a conviction, its weight being a question for the trier of fact to be determined in connection with the other circumstances of the case. People v. Oswald, 26 Ill2d 567, 187 NE2d 685. However, we feel that the testimony of Cherry was of a positive nature and that we cannot substitute our judgment for that of the trial judge. The defendant’s stories that he had bought the gun a week before the burglary, and later, on the morning of the burglary, somebody gave it to him to sell, are not only inconsistent and highly improbable but tend to make his testimony unworthy of belief. In this case there was not only evidence as to identification, from which the trial court could have concluded that the defendant was the perpetrator of the crimes charged, but also this defendant was in possession of part of the proceeds of the burglary. The identification of the defendant, taken together with the possession of part of the proceeds of the burglary by the defendant, and his story of how he received it, together with the fact of his prior conviction, were, in our opinion, sufficient to justify the trial court in not believing the alibi of the defendant.

We are of the opinion that the defendant received a fair trial and that the judgments of the trial court must be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Excell Williams, Defendant-Appellant.
    Gen. No. 50,907.
    First District, Second Division.
    April 5, 1966.
    Norton Wasserman, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    William Shramek, Plaintiff-Appellant, v. General Motors Corporation, Chevrolet Motor Division, a Corporation, and United States Rubber Company, a Corporation, Defendants-Appellees.
    Gen. No. 50,614.
    First District, Second Division.
    March 15, 1966.
    Rehearing denied April 5, 1966.

      Lawrence Lawless, of Chicago, for appellant.

      Baker, McKenzie & Hightower, of Chicago (Francis D. Morrissey, Thomas F. Bridgman and John W. Dondanville, of counsel), for appellee, General Motors Corporation; Chadwell, Keck, Kayser, Ruggles & McLaren, of Chicago (James E. Hastings and Richard E. Wiley, of counsel), for appellee, United States Rubber Company.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal, by plaintiff, from (1) an order entered on December 9, 1964, wherein the court entered a summary judgment in favor of defendant, United States Rubber Company, a corporation, and (2) an order entered February 18, 1965, wherein a motion to vacate the aforesaid summary judgment was denied, and wherein a summary judgment was entered in favor of defendant, General Motors Corporation, Chevrolet Motor Division, a corporation.

On October 20, 1961, plaintiff was riding in a 1961 Chevrolet with the automobile owner, one Glenn Northup, and the owner’s wife. They were proceeding on Route 66 (a four-lane highway) at a speed of approximately 65 m. p. h., from the owner’s home, to Las Vegas, Nevada, when the left rear tire blew out. The car left the highway, overturned, and all occupants, including plaintiff, were seriously injured. Plaintiff was thrown from the vehicle and sustained a concussion, hip and back injuries, a spondylolisthesis and other injuries. The occurrence took place near Barstow, California, and while plaintiff and the owner were hospitalized, the car was taken to a local junkyard and junked. Plaintiff and the owner examined the tire at the junkyard, but it was not preserved.

The automobile was purchased new by the owner on February 3, 1961 in the State of California. The automobile utilized tires of premium quality, manufactured by defendant, United States Rubber Company, and described as “U. S. Royal tubeless 8.00-14-4 ply.” The owner had paid an additional premium for these tires. The automobile carried an express warranty which, however, excluded tires.

Plaintiff, a cousin of the owner, had driven the automobile on brief occasions before the accident. Plaintiff, however, had not maintained the vehicle. It is uncontroverted that the automobile had been properly maintained and the tires properly inflated and rotated.

On September 27, 1968, plaintiff filed suit claiming a breach of implied warranty and, alternatively, negligence in the design and manufacture of the tire. Plaintiff alleged that the defective design or manufacture of said tire made both the tire and the automobile to which it was attached, dangerous instrumentalities. On August 18, 1962, plaintiff had notified both defendants of his claim, the serial number of the automobile, and a description of the tire.

Defendant, General Motors Corporation, Chevrolet Motor Division, in answer to amended interrogatories of plaintiff stated that the automobile in question was assembled on December 15, 1960 at Van Nuys, California; that defendant did not record any tire information except the size and color of the tires; that defendant had no information with reference to tire design, designed life, type of construction or complaints therein; and that defendant never received any notice or had any knowledge of defects in the tire design.

Defendant, United States Rubber Company, answering certain amended interrogatories of plaintiff stated that it had no knowledge concerning what tires were installed in the automobile described in the complaint, and that it had no information concerning lot descriptions or identifying characteristics which would allow the tracing of a tire to a specific plant or industry.

Both defendants moved for summary judgment, with attached affidavits, based upon the fact that the claimed defective tire was not available. A counteraffidavit filed by plaintiff stated that Fortune magazine in December, 1964, carried an article entitled “After the Battle in United States Rubber’s Executive Suite.” Among other things, the article stated that in 1959 United States Rubber Company changed its tire composition to obtain a “soft ride”; that after this design change, tires so constructed suffered from separation of the inner plies, and failed by the thousands; and that it was not until the fall of 1961, that United States Rubber Company again “got control of quality.” Summary judgment was granted defendant, United States Rubber Company, on December 9, 1964. Plaintiff moved to vacate the judgment within thirty (30) days, and during this period, defendant, General Motors Corporation, also moved for a hearing on its motion for summary judgment. On February 18, 1965, the court granted a summary judgment to defendant, General Motors Corporation and denied plaintiff’s motion to vacate the summary judgment entered in favor of defendant, United States Rubber Company.

Plaintiff alleges that the trial court erred (1) in granting a summary judgment in favor of defendants in that the absence of the defective tire does not resolve all the factual questions in favor of a defendant and (2) in not allowing certain interrogatories to be answered by defendant, United States Rubber Company, before the court ruled on the summary judgment.

Both defendants argue that they were entitled to a summary judgment solely on the ground that in the absence of the tire, plaintiff could not sufficiently establish a factual question for the jury on either a breach of implied warranty or negligence theory. In addition, defendant, United States Rubber Company, argues that it did not have to answer certain interrogatories because (1) it did not keep records, (2) its design and manufacturing processes are secret, and (3) it did not have to disclose evidence of tire defects, for the type of tire here involved, for a reasonable period before the occurrence.

The law in Illinois is clear that a summary-judgment shall be entered in favor of the moving party if the pleadings, depositions, admissions and affidavits demonstrate that no genuine issue concerning any material fact exists and if the movant is entitled to a judgment as a matter of law. Furthermore, as stated in Allen v. Meyer, 14 Ill2d 284, 152 NE2d 576 (1958), on page 292:

Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.

We hold that the entry of a summary judgment was both proper and required in this case because the record conclusively demonstrates that plaintiff will not be able to prove, directly or inferentially essential elements of his case; i. e., (1) that the accident which resulted in his injuries was caused by a tire, (2) that said tire was defective. The trial court’s conclusion that plaintiff could never meet his required burden of proof and that defendants were entitled to judgments as a matter of law was correct.

It would be incumbent upon plaintiff to prove the essential elements of his case by either direct or circumstantial evidence. The record shows that this would be an impossibility. Whether the charge is breach of implied warranty, negligence or the strict tort liability now recognized in both Illinois (Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965)) and California (Greenman v. Yuba Power Products, Inc., 59 Cal2d 57, 377 P2d 897 (1963)), the cornerstone of plaintiff’s cause of action is the existence of a defect in the tire at the time it left the control of the manufacturer or seller. Without this proof his case must fall.

Plaintiff admitted that he could not produce the tire and did not have any knowledge concerning its continued existence. Moreover, aside from a superficial inspection of the damaged car and tire after the accident by plaintiff and his cousin, the tire in question was never subjected to an examination which would reveal that the blowout was due to a preexisting defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.

The mere fact of a tire blowout does not demonstrate the manufacturer’s negligence, nor tend to establish that the tire was defective. Blowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the conditions of the roads over which they are driven and the happenstance striking of damaging objects.

A case directly in point is Williams v. U. S. Royal Tires, 101 So2d 488 (La App, 1958). There, plaintiff alleged that her husband had been killed in an automobile accident resulting from the blowout of a tire. As in the instant case, plaintiff charged both negligence and breach of warranty. Again, as in the present matter, plaintiff could not produce the tire and did not even know whether it still existed. Affirming the trial court’s dismissal of the plaintiff’s cause of action, the Appellate Court stated at page 492:

It cannot possibly be presumed or said that the blowing out of this tire was solely because of a defect therein by the alleged manufacturer, defendant U. S. Royal Tires. There are numberless means of causes other than a defect in the manufacture, which bring about a blow out of a tire. It was the duty of the plaintiff in this case to allege wherein this tire was defective and to connect such condition to its negligent manufacture by defendant. U. S. Royal Tires. Plaintiff admitted upon a hearing in the lower court and in argument before this court that the tire could never be produced as it was not in their possession and as far as plaintiff knew, even in existence at the present time. Therefore, even if by any stretch of the imagination plaintiff’s petition could be amended so as to state a cause of action, which would be treating the exception of defendants as one of vagueness, it is clear that plaintiff could never prove it.
... It is true that manufacturers of automobile tires are under a duty to make them properly and carefully, but one charging a manufacturer with not doing so must allege wherein the manufacturer has failed and a causal connection with the accident. This counsel for plaintiff admits that he cannot do, nor could he prove such an allegation if made under his own admission in the lower court as well as in this court.

Similarly, in the instant case, the determination of why the tire blew out could be left only to pure speculation. The law is well settled that an inference of negligence or liability itself cannot be based on mere speculation or imagination, and where the evidence presented indicates only a mere possibility that a defendant was negligent, the case must be removed from the jury’s consideration. Shaw v. Swift & Co., 351 Ill App 135, 114 NE2d 330 (1953); cf., Tiffin v. Great Atlantic & Pacific Tea Co., 18 Ill2d 48, 60, 162 NE2d 406 (1959).

Furthermore, a plaintiff also has the burden of establishing a causal relationship between the tire’s alleged defect and his injuries. Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill 59, 33 NE2d 119 (1941); Drell v. American Nat. Bank & Trust Co., 57 Ill App2d 129, 207 NE2d 101 (1965); Gray v. Pflanz, 341 Ill App 527, 94 NE2d 693 (1950). Plaintiff did not, and could not, do this.

Plaintiff contends, however, that although he does not have the tire, nor any expert testimony as to the cause of its blowing out, he should be allowed to take his case to the jury. We disagree. On such a record, a jury would have no basis to determine whether the tire was defective when it left defendants’ control and whether that defect ultimately caused plaintiff’s injuries. Under such circumstances, it is manifest that plaintiff did not raise genuine issues of fact as to these material elements of his case.

The requirement that plaintiff prove the essential elements of his case has also been recognized in warranty cases. See, e. g., Stanton v. Sears Roebuck & Co., 312 Ill App 496, 38 NE2d 801 (1942); Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275 (1956); Haas v. Buick Motor Division of General Motors Corp., 20 Ill App2d 448, 156 NE2d 263 (1959). In the Haas case, the plaintiff’s automobile, while still new and having been driven only 1,300 miles, caught fire while his wife was at the wheel. In affirming a directed verdict for the defendant on an alleged breach of warranty, the court held at page 454:

The mere fact that a fire evidently occurred here, resulting in damage to the property, does not authorize any presumption or inference that the defendant was responsible therefor, — the burden was on the plaintiff to prove, among other things, that there was some material defect in materials or workmanship. . . . This is not a case for the application of some doctrine analogous to that of res ipsa loquitur. . . .

In Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), in which the doctrine of strict tort liability for manufacturers was recognized in this State, the court made clear that such liability does not make the defendant “an absolute insurer.” The court stated at page 623 that plaintiffs must still prove:

. . . that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.

Thus, even in the expanded area of strict tort liability, it is still incumbent on plaintiff to prove, at the very least, that a defective condition in the manufactured item brought about the injuries which he incurred. Here, plaintiff obviously cannot prove that the nonexamined and nonexistent tire in question was “defectively manufactured.”

Plaintiff contends that he can meet the required burden of proof by the use of circumstantial evidence. We disagree. First of all this is not a case which permits the application of the doctrine of res ipsa loquitur. Res Ipsa Loquitur, a name given to merely one type of circumstantial evidence, may be invoked where an agency or instrumentality, under the exclusive control of the defendant, injures an innocent plaintiff under circumstances which ordinarily would not occur in the absence of negligence. (Emphasis supplied.) Roberts v. City of Sterling, 22 Ill App2d 337, 161 NE2d 138 (1959). The tire, by plaintiff’s own admission, had approximately 10,000 miles of use at the time of the accident and, for the purpose of circumstantial evidence, was thus not in either defendant’s exclusive control or in their control at all. Moreover, as previously discussed, tire blowouts, in and of themselves, are not evidence of the presence of negligence or defect. Williams v. U. S. Royal Tires, 101 So2d 488 (La App, 1958).

Secondly, without the application of the res ipsa loquitur doctrine, no inference of liability can be drawn. The facts upon which plaintiff bases his case are a blowout and, essentially, nothing more. On such a record, especially when the tire had undergone some 10,000 miles of use and had never been examined for defects following the blowout, an inference that the manufacturer and seller placed a defective product in the plaintiff’s hands is impossible.

Plaintiff asserts, however, that had the trial court required U. S. Rubber to answer his interrogatories in full, sufficient evidence could have been elicited on which such an inference of negligence or liability could have been based. We disagree with plaintiff. The interrogatories which were objected to, had absolutely no relevance to the tire which allegedly failed. The inquiries referred, in general, to U. S. Royal Tires of a certain size and type. They sought to elicit information concerning the ordinary design life, the chemical composition, number of plies, type of tread and composition, the range of inflation pressures, and whether such tires had been the subject of any design defects or complaints relating to design. Answers to these interrogatories could not have provided evidence that the tire in question was defective. Accordingly, this defendant’s objections to such interrogatories were properly sustained by the trial court.

Finally, plaintiff contends that he could have met the required burden of proof by the introduction into evidence of the magazine article, which appeared in Fortune Magazine. We disagree with plaintiff. The introduction of the article would have been inadmissible, because of its incompetent nature. Plaintiff’s argument that testimony by various agents of defendant, U. S. Rubber, who were mentioned in the article, would establish his cause of action, is likewise invalid, in that plaintiff cannot defeat a motion for summary judgment on a speculative theory that the testimony of his opponent might prove his case.

For the reasons herein set forth, the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Appellee, v. Lucius H. Smith, Appellant.
    Gen. No. 50,431.
    First District, Fourth Division.
    March 18, 1966.

      Barry Goodman and Bernard B. Brody, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, a chiropodist, was convicted after a jury trial of unlawfully prescribing narcotics for Dan Daniels (a police officer) and was sentenced to the penitentiary for a term of not less than ten nor more than twelve years. In this appeal defendant contends that the court committed various prejudicial errors which deprived him of a fair trial and that the prescriptions are exempt under the Narcotics Act.

Officer Dan Daniels testified that on February 21, 1963, at approximately 10:00 p. m., he went to the defendant’s office in the company of Jane Ferguson (a special police employee) and that he possessed $30 in prerecorded funds. The witness further testified that he had never before been a patient of Dr. Smith but had seen him previously; that Ferguson introduced him to Dr. Smith, after which defendant wrote Daniels a prescription for morphine (People’s Exhibit 4) at the latter’s request and without a physical examination; that he did not complain about any foot ailment; that after defendant handed him this prescription, he (Daniels) requested a prescription for dilaudid; that defendant wrote the second prescription (People’s Exhibit 5), asked whether it should be under the same name, and was told to use the name Bernie Brown. Daniels also stated that he gave defendant the aforesaid $30; that he was in the office between five and ten minutes and that he could not recall whether defendant asked any questions relating to his physical condition; that he had a temporary heart strain and was excused from policy duty from November 16, 1962, to February 1, 1963, but he did not discuss this condition with the defendant; and that he found the $30 in prerecorded funds in defendant’s pocket when the latter was arrested shortly thereafter.

Officer John Rouzan testified that he went to defendant’s office at approximately 10:15 p. m. that same evening with $15 in prerecorded funds and was accompanied by William Passmore; that he was not a patient of the defendant; that defendant answered the phone and said “The fellow and girl that just left was — the fellow was a policeman,” after which Rouzan told the defendant: “Get me a script, I want to get out of here before the policeman comes.” The witness further stated that defendant asked his name and address, wrote something on a prescription blank and gave it to him using the name Jerry Vick (People’s Exhibit 9); that he gave defendant the $15 and returned to his police car; that he and Officers Brown and Daniels returned to the defendant’s office and placed him under arrest.

Charles Vondrak, a police officer and registered pharmacist, testified that Exhibit 4 was a prescription calling for thirty morphine tablets, one-quarter grain, and that Exhibits 5 and 9 each call for thirty dilaudid tablets, one-sixteenth grain; and that dilaudid is a dihydromorphinone hydrochloride.

Defendant testified in his own behalf and admitted that Dan Daniels was in his office with Jane Ferguson on the evening in question. He stated that he took Daniels into the consultation room where the latter complained of having pain in his foot; that no one else was present in the room; that he asked Daniels his name and address and how long he had that pain, whereafter Daniels replied that it was an excruciating pain in the front part of his foot which had troubled him for about a week; that Daniels told him that he had the pain once before and was given medicine which alleviated it, and that he (Daniels) had a heart condition. Defendant also testified that after Daniels answered several other questions he made a diagnosis of metatarsalgia, an excruciating pain in the forepart of the foot caused by the metatarsal bones pressing upon an injury in a nerve; that based upon his diagnosis he wrote a prescription (Exhibit 4); that the examination lasted ten or fifteen minutes and that he charged Daniels $15, his customary fee for a night call. Defendant further testified that shortly after Daniels left his office another man came into his office and he prescribed a pain reliever (which he identified as People’s Exhibit 5). Defendant stated that the next visitor in his office (Officer Rouzan) was a highly nervous person; that he complained of difficulties with his feet; that he thought the patient was a diabetic but the patient told him that he wasn’t; that he gave him a prescription (Exhibit 9) and charged the patient $15.

On cross-examination defendant testified that Jane Ferguson had been a patient for approximately three months prior to February 1963; that she had an oral and physical examination; and that he prescribed a treatment for her ailment.

Jane Ferguson, an admitted narcotics addict and police informer, testified in rebuttal and corroborated the testimony of Dan Daniels as to his receipt of the prescriptions. The witness also stated that she first saw the defendant in December of 1962, at which time she was addicted to morphine; that she never complained to the defendant of any foot ailment and that he never examined her feet but that the defendant gave her several prescriptions, each calling for morphine sulphate; and that she gave the defendant $15 for every prescription.

On cross-examination the witness stated that she was a dancer and admitted that she had been arrested twice, once for prostitution; that she last used narcotics on March 21, 1968; and that from February 21 to March 21 of that year she obtained her narcotics on the street. An effort was made to ascertain where she presently resided but an objection thereto was sustained.

Dr. Thomas Brandt, a podiatrist, testified that it is not within the general practice of podiatry to prescribe a narcotic drug without a physical examination. On cross-examination he testified that it is possible that a podiatrist could prescribe morphine-sulphate to relieve pain after an oral examination and a diagnosis of metatarsalgia; that it is conceivable that a podiatrist, in the course of his practice, might orally examine the patient and prescribe for him; and that morphine sulphate is a drug used to relieve pain, as is dilaudid.

The Uniform Narcotic Drug Act provides that a chiropodist, in good faith and in the course of his professional practice only, may prescribe narcotic drugs. The jury found that defendant did not act in good faith in prescribing narcotics for Dan Daniels.

Defendant, contending that he was deprived of a fair trial, urges first that the court committed prejudicial error in allowing, over objection, People’s Exhibits 1 and 6, respectively, to be introduced into evidence. These exhibits were subsequently passed to the jury for inspection. Exhibit No. 1 is a list by serial number of the bills which were allegedly given to the defendant by Officer Daniels. It bore the following legend:

The following is a list of official funds to be used in making a controlled purchase of narcotics from Dr. Lucius Smith.

Exhibit No. 6 is a similar list of bills which were allegedly given the defendant by Officer Rouzan and contained the following notation:

The following list of U.S.C. is from the official funds of the O.C.D. for a controled [sic] purchases [sic] of narcotics.

There is no testimony that any narcotics were purchased by Daniels from the defendant nor is the defendant charged with selling narcotics. In United States v. Brandenburg, 155 F2d 110 (a case under the federal narcotics law) the prosecution offered into evidence three prescriptions which were inadvertently attached to sheets of paper bearing language to the effect that prescriptions were “purchased” from the defendant, whereas the issue in the case was whether the defendant had written the prescriptions in good faith. The court granted a new trial, stating at page 113 that:

Obviously, these hearsay statements might have been influential in the jury’s determination of the vigorously contested question of Dr. Brandenburg’s good faith. And on appeal, we are unable to evaluate what weight the jury attached to them: (authority omitted).

The introduction into evidence of People’s Exhibits 1 and 6 was prejudicial error.

Defendant also argues that the court improperly limited the cross-examination of Jane Ferguson, an addict-informer of dubious character, in that an objection was sustained to an inquiry on cross-examination as to where the witness was living. On direct examination Ferguson testified that she was with Officer Daniels in defendant’s office at about 10:00 p. m. on the night in question; that Daniels asked the doctor for a prescription; that the defendant said, “What for” and Daniels answered, “Morphine”; that defendant then wrote out a prescription and handed it to Daniels, after which defendant wrote Daniels a prescription for dilaudid at the latter’s request; and that Daniels gave defendant $30. From this testimony it can be inferred that defendant did not inquire as to Officer Daniels’ foot condition prior to writing the prescriptions. That testimony supplied an important element with respect to the issue of defendant’s good faith, since Officer Daniels testified that he could not recall whether defendant asked him any questions relating to his physical condition. The police informer (Jane Ferguson) was an admitted narcotic addict who had been arrested twice, once for prostitution. Moreover, she admitted obtaining narcotics up to one month after defendant’s arrest. Under these circumstances Ferguson’s place of residence was a legitimate subject of inquiry on cross-examination to determine her interest in the outcome of defendant’s case and, in general, her complete environment and motivation. Alford v. United States, 282 US 687; People v. Soto, 64 Ill App2d 94, 212 NE2d 353.

We find that because of the aforesaid errors of the trial court the defendant did not receive a fair trial.

Defendant also contends that the prescriptions in question are exempt under the Narcotics Act since, although each prescription was for thirty pills, the morphine content of each pill did not exceed one-quarter grain. We would point out that the aforsaid exemption is subject to the conditions set forth in section 12(4) (a) of the Act (Ill Rev Stats 1961, c 38, § 22-12(4) (a)):

(4) The exemptions authorized by this Section shall be subject to the following conditions:
(a) No person shall prescribe . . . under the exemption of paragraph (1) of this Section, to any one person, . . . any preparation or preparations included within that paragraph, when he knows, or can by reasonable diligence ascertain, that such prescribing . . . will provide the person to whom or for whose use . . . such preparation is prescribed . . . within any 48 consecutive hours, with more than . . . one-half grain of morphine or any of its salts, or will provide such person . . . within 48 consecutive hours, with more than one preparation exempted by paragraph (1) of this Section from the operation of this Act.

The prescriptions in question contain the notation “Use as directed.” There was no testimony as to whether defendant directed Officer Daniels with regard to the use of the pills. If there were no such directions defendant failed to come within the terms of the aforesaid section of the act and no claim of exemption would be available to him.

The defendant’s conviction is reversed and the cause remanded for a new trial in a manner not inconsistent with the views expressed in this opinion.

Reversed and remanded.

ENGLISH and MCCORMICK, JJ., concur.

       Section 3 (Ill Rev Stats 1961, c 38, § 22-3) provides in relevant part that:
      It is unlawful for any person to . . . prescribe . . . any narcotic drug, except as authorized in this Act.
      Section 11 (Ill Rev Stats 1961, c 38, § 22-11) provides in pertinent part that:
      A dentist or chiropodist, in good faith and in the course of his professional practice only, may prescribe, administer and dispense narcotic drugs.

       Section 12 (Ill Rev Stats 1961, c 38, § 22-12) provides that:
      Except as otherwise in this Act specifically provided, this Act shall not apply to the following cases:
      (1) Prescribing . . . any medicinal preparation that contains ... in one avoirdupois ounce ... (b) not more than one-quarter of a grain of morphine or of any of its salts . . . .


text:
    William R. Bradshaw, Plaintiff-Appellee, v. Lucille Bradshaw, Defendant-Appellant.
    Gen. No. 50,692.
    First District, Fourth Division.
    March 18, 1966.

      John D. Vosnos, of Chicago, for appellant.
    Kenneth E. Wilson, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from an order entered on March 31, 1965, vacating and setting aside a decree for separate maintenance which was entered in her favor on June 6,1962.

On June 15, 1961, plaintiff filed an action for divorce on the ground that the defendant deserted him on or about August 16, 1954, without his fault. On August 2, 1961, the defendant filed an answer thereto denying the allegations set forth in the complaint and in addition filed a counterclaim for separate maintenance in which she alleged that the plaintiff wilfully deserted her on December 7, 1960. Plaintiff did not file an answer to the coun-

terclaim. For several days prior to May 22, 1962, the cause appeared in the Chicago Daily Law Bulletin under the contested divorce call in which it was stated that the cause would be called at 2:00 p. m. on May 22 to be set for trial. On that date, only the defendant appeared in the assignment court as the cause was set to be heard on June 6, 1962, as a contested matter. On June 5 the cause once again appeared under the contested divorce call in the Chicago Daily Law Bulletin and the date of trial was announced. No default was entered for the failure of plaintiff to answer defendant’s counterclaim. The cause was heard on June 6 though neither the plaintiff nor his attorney appeared in court, after which a decree of separate maintenance was entered in favor of the defendant and plaintiff’s complaint for divorce was dismissed with prejudice for want of equity. The testimony in support of the decree was not transcribed or recorded.

On May 27, 1963, counsel for the plaintiff served a copy of notice and petition under section 72 of the Civil Practice Act (Ill Rev Stats 1961, c 110, § 72) to vacate the decree and on July 9 leave was granted to file the petition. In his petition plaintiff asserted that: (1) counsel for plaintiff from time to time called the office of defendant’s counsel with reference to the status of the cause and conversations were conducted with reference to settlement; (2) the cause was reached on the trial calendar on May 22, 1962, unknown to plaintiff or his attorney, at which time it was referred for trial; (3) during the pendency of the case on the contested trial calendar no orders for alimony or support or attorney’s fees were entered against the plaintiff, nor were any motions made in behalf of the defendant; (4) no notice was received as to the continuance of the cause to June 6 nor of the entry of the decree; (5) in May 1963 counsel for the plaintiff made a check of the court calendar and files to determine why the case had not appeared on the calendar and discovered the entry of the decree; (6) that no motion had been made to enforce the decree; (7) the decree was entered on the basis of perjured testimony; and (8) plaintiff has a good defense to the counterclaim since he did not desert the defendant, but the latter deserted him.

On August 5, 1963, defendant filed a motion to strike the petition, which was denied on March 31, 1965. An order was also entered on that date vacating the decree and granting plaintiff leave to file an answer to defendant’s counterclaim.

Defendant’s motion to strike the petition must be taken to have admitted all well-pleaded allegations of fact. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. An action for divorce involves interests other than those of the parties litigant. The State, as the sovereign, has an interest in maintaining the integrity and permanency of the marriage relation. McKeon v. McKeon, 4 Ill App2d 515, 124 NE2d 564. Whether there is a contested hearing with both parties present or an ex parte hearing, the entry of a decree of divorce should not be treated as a casual matter. Ollman v. Ollman, 396 Ill 176, 71 NE2d 50. The principles of the aforesaid cases are also applicable to a proceeding for separate maintenance.

Section 1.1 of the Uniform Circuit and Superior Court rules, in effect at the time of trial, provided that:

Notice of all proceedings in an action shall be given to all parties who have appeared and have not been found by the Court to be in default for failure to plead ....

Plaintiff was not notified of the presentation of the decree for separate maintenance. In McKeon v. McKeon, supra, the court reversed an order denying a petition to vacate a divorce decree and held that notice of the presentation of the decree was required. In interpreting the rule in effect at that time the court at page 524 stated:

In this State in equity it is the practice for the attorney who obtains the decree to prepare it and submit it to the judge for approval and entry. The judge’s oral announcement of his decision and the reasons therefor have no effect, and the decree is not the act of court until it is signed or approved and entered of record. This is a judicial act . . . . Rule 21 . . . has never been held to dispense with the necessity of notice when the court, after the conclusion of the trial, is asked to perform a judicial act therein .... In equity cases it has been the common practice, where an appearance and answer are on file and an ex parte hearing has been held, to require that notice be served upon the opposing party of the approval and entry of the decree or that the opposing party indicate on the decree his approval. This practice is in the furtherance of justice ....

Therefore, since in the instant case no default had been entered, plaintiff was entitled to notice of the presentation of the decree for separate maintenance.

In Wolder v. Wolder, 30 Ill App2d 98, 173 NE2d 546, the court reversed an order of the trial court denying the defendant’s motion to vacate a decree of divorce and stated at page 102:

In our case, plaintiff’s attorney was quite aware that the divorce was contested. Although the court and attorneys’ offices are located within the central business district, plaintiff’s attorney did not try to reach defendant’s attorneys when they failed to answer the trial call of the contested calendar on December 15th. A simple glance in the court file by the trial judge would have revealed the many court appearances of the parties, disclosing a contested matter. A postal card mailed by the court’s clerk or a phone call to defendant’s attorneys by the court’s bailiff on the date the case was called for trial would, in our opinion, have obviated the necessity of hearing this cause as a default matter. Upon the facts in this case, we think the defendant should be allowed to defend the suit for divorce on its merits, and that the trial court erred in refusing to vacate the default decree.

In the instant case the allegations of plaintiff’s petition, which stand admitted, show that conversations were had from time to time between counsel regarding the status of the case and settlement. Though counsel for the defendant was fully aware of the earnest contest by plaintiff with respect to the divorce, the record does not indicate that he made any effort to inform the plaintiff that the case was set for trial. No justification for this conduct is offered by the defendant except that she was under no legal duty to notify plaintiff or his attorney under the aforesaid circumstances. Further casting a cloud on the proceedings in the instant case is the fact that there was no effort by the defendant prior to September 27, 1963, (more than one year after the entry of the decree) to collect any of the payments due under the decree. In Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350, the defendant was not notified of the entry of default judgments until after the expiration of thirty days (the time allowed for making a direct attack thereon). Shortly after the entry of the default judgments counsel for defendant made an offer of settlement but counsel for the plaintiff, without revealing the entry of the aforesaid judgments, stated that he would be unwilling to discuss settlement until a later specified time which was after the aforementioned thirty days. The court stated at page 293 that:

The pattern of conduct followed by plaintiffs’ attorney after the default judgments were entered, and for which no justification has been offered in this or the lower courts, admits of no serious doubt that it was designed to mislead and lull the defendant until such time as the county court’s power over the proceeding had ceased to exist at [the] expiration of thirty days.

Under all of the circumstances of this case, it is our opinion that the petition and supporting affidavits presented a situation which addressed itself to the equitable powers of the trial court and that, in justice and fairness, plaintiff should be given a hearing on the merits.

The order vacating the decree of separate maintenance and granting plaintiff leave to file an answer to defendant’s counterclaim is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       In force now as Rule 1.1 of the Circuit Court of Cook County.

       This was Rule 21 of the Superior Court of Cook County, which was replaced by Rule 1.1 in 1959, and which provided as follows:
      Sec. 1. No motion will be heard or order made in any cause without notice to the opposite party after such party has entered his appearance, except when a case is reached on the trial call and called for trial.


text:
    Melvina Knackstedt, Conservator in the Matter of the Estate of Sarah E. Wright, Incompetent, Respondent-Appellee, v. Department of Mental Health of the State of Illinois, Petitioner-Appellant.
    Gen. No. 51,024.
    First District, Fourth Division.
    March 18, 1966.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard A. Michael, A. Zola Groves and John J. O’Toole, Assistant Attorneys General, of counsel), for appellant.
    William T. Halvorsen, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a dismissal of a claim sought by petitioner from respondent for reimbursement for the care of Sarah E. Wright in a State mental institution.

Sarah E. Wright is and has been hospitalized in the Chicago State Hospital under the control and supervision of the Department of Mental Health of the State of Illinois since June 10, 1926. On June 30, 1960, an order was entered in the Estate of Sarah E. Wright, Incompetent, appointing a conservatrix.

On February 17, 1961, the conservatrix filed a sworn petition in the Probate Court of Cook County in which it was alleged that “the Department of Public Welfare of the State of Illinois has requested that monies be contributed to the said Department of Public Welfare of the State of Illinois for the maintenance and care of the said incompetent, and said Department has indicated that it will accept from the Conservatrix payments of forty-five ($45.00) Dollars per month for said purposes.”

Pursuant to said petition an order was entered on February 17, 1961, granting leave to said conservatrix to pay from monies belonging to the estate to the Department of Public Welfare, the sum of $45 per month, commencing March 1,1961, (excepting that the first payment of $45 shall be made prior to February 28, 1961), for the maintenance and care of said incompetent person.

The respondent became a successor-co-conservator in 1962 and is now the acting conservatrix.

On March 5, 1965, the Department of Mental Health filed a petition requesting the sum of $7,803 from the estate of Sarah E. Wright for maintenance charges for the care, treatment, detention and training of that patient in a State hospital, as authorized by sections 9-19 to 9-25 of the Mental Health Act (Ill Rev Stats 1963, c 91%, §§ 9-19 to 9-25).

The sum of $7,803 was ascertained by determining the charge from January 1, 1952 (the effective date of the applicable provisions of the Mental Health Act), to and including June 30, 1957, at the rate of $60 per month, and from July 1, 1957, to and including December 31, 1961, at the rate of $81 per month. As authorized by statute these monthly charges were ascertained by the Department as the average per capita cost of maintaining a patient in a State institution. The total due thereon was $8,253. This amount was reduced by $450, that amount having been paid to the Department by the respondent.

The respondent filed an answer to the aforementioned petition on March 25, 1965, and alleged that the Department, having agreed to accept $45 per month, was es-topped from urging or seeking a sum greater than that amount; that the estate from which the sum is sought was not in existence until June 30, 1960, and therefore not responsible for charges incurred prior to that date; and that the Department was barred by the Statute of Limitations from seeking remuneration for past services rendered.

On April 15, 1965, an order was entered dismissing the claim of the Department of Mental Health for $7,803 but the respondent was ordered to pay the sum of $810, being eighteen monthly payments of $45 each from November 1963 to and including April 1965.

The petitioner filed a notice of appeal from this order.

Respondent does not dispute the right of petitioner to charge for the care and treatment of Sarah E. Wright and concedes that the Statute of Limitations is not applicable to a legal debt due to the People of the State of Illinois. Her main contention is that the order of February 17, 1961, estops the petitioner from making any other claim except as provided in that order, e. g., $45 a month from March 1, 1961. In Dandurand v. County of Kankakee, 196 Ill 537, 63 NE 1011 (decided under prior law), the court permitted the county to recover support for a patient in a mental institution for the period prior to the time of the filing of the petition, holding that a public official has no authority to release any portion of a debt owed to the State. The court stated at pages 540-41 that:

It is urged that as the county officers had not made a special charge against him, and had taken no action to compel him to pay till a year or two before this suit was brought, the county is not entitled to recover support prior to that time, as it is presumed the county intended not to charge for said support prior to that time. We think the intention does not enter into the case where the support is by a public body. If he was liable for his own support under the law, there was no officer who could form an intention that gratuitous service should be rendered, which would bind the county and release defendant from liability. Nor can such intention be manifested ... by a failure of the county officers to promptly ascertain and enforce the legal rights of the county.

Section 9-24 of the Mental Health Act (Ill Rev Stats 1963, c 91 y%, § 9-24) permits the recovery of maintenance charges from the estate of a deceased patient and provides as follows:

Upon the death of a person who is or has been a patient of a State hospital who is liable for maintenance charges and who is possessed of property, it shall be the duty of the executor or administrator to ascertain from the Department whether any payments were made for the sums due as maintenance charges by the deceased person while a patient, and if not, the Department may present a claim for such sums, or for the balance due in case less than the rate prescribed under this Act has been paid. Such claim shall be allowed and paid as other lawful claims against the estate.

The Supreme Court in Department of Public Welfare v. Bohleber, 21 Ill2d 587, 173 NE2d 457, after discussing the pertinent sections of the act, stated at pages 592, 593 that:

As is demonstrated in Department of Public Welfare v. A’Hern, 14 Ill2d 575, there is nothing in section 9-21, or in section 9-25, (which provides that costs will be borne by the State if there is no one able to pay) which extinguishes the liability fixed by section 9-19, or limits the State’s right and duty to claim and collect maintenance costs, should any liable person or estate acquire the ability to pay in whole or in part.
[S]ection 9-24 . . . provides that the claim filed against a deceased patient’s estate may be for sums due as maintenance charges, “or for the balance due in case less than the rate prescribed under this Act has been paid.” The clear import of this language is that, regardless of prior payments, prior ability to pay or an administrative determination thereof, the Department may present a claim for the entire cost of maintenance, or an unpaid balance, at the rate prescribed or set under section 9-20.

It is clear that if Sarah Wright had died the State would be permitted, and in fact would have a duty, to recover from her estate the balance due since less than the rate prescribed under the act has been paid. We consider the instant case indistinguishable from the aforesaid situation and consequently there is no reason for the State to be precluded from presently recovering the balance due from her estate.

Therefore the order of the Circuit Court of Cook County dismissing the claim of the Department of Mental Health is reversed and the cause remanded with directions to enter an order allowing the claim of the Department of Mental Health and to determine the amount due thereon in accordance herewith.

Reversed and remanded.

ENGLISH and McCORMICK, JJ., concur.

       In Dept. of Public Welfare v. A’Hern, 14 Ill2d 575, 153 NE2d 22, a suit for charges for care under the Mental Health Act, the Supreme Court stated at page 576 that:
      The revenue of the State being directly involved the cause is properly brought to this court.
      The instant appeal, originally filed in the Supreme Court, was transferred to this court without comment.

       The fact that the estate was not established until 1960 is of no significance since Sarah Wright was liable for her care and maintenance whether or not an estate was opened. Department of Public Welfare v. A’Hern, 14 Ill2d 575, 153 NE2d 22.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    Robert A. Halter, d/b/a The Music Center, Plaintiff-Appellee, v. Charles Schoreck, Defendant-Appellant.
    Gen. No. 50,634.
    First District, First Division.
    March 21, 1966.

      Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant.
    David E. Bradshaw and Orner & Wasserman, of Chicago (Norton Wasserman, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Charles Schoreck, appeals from a judgment for plaintiff, Robert A. Halter, d/b/a The Music Center, entered on April 8, 1965, contending as the only issue that the court lacked jurisdiction. Defendant charges that the court lost jurisdiction after the entry of an order dismissing the cause for want of prosecution on May 21, 1957, and that its order vacating said dismissal and reinstating the cause on December 5, 1957, (being more than thirty days after the entry of the order of dismissal) and all subsequent proceedings, including the judgment, were void. Plaintiff’s answering contention is that his motion, supported by affidavit, filed on December 5, 1957, and the basis for the order reinstating the cause, invoked the benefit of section 72 of the Practice Act (Ill Rev Stats 1965, c 110, § 72) and gave the court jurisdiction. Defendant counters by saying that said motion and affidavit failed to comply with the requirements of section 72.

In order to determine the issue, we review the chronological events involved. Plaintiff filed his action on March 1, 1956. Issue was drawn by defendant’s answer to the complaint and his demand for jury trial. The case was set several times for trial, one of the dates being May 21, 1957. On that day, plaintiff, failing to answer the call, the court entered the order of dismissal for want of prosecution. On December 5, 1957, some seven months thereafter, plaintiff filed a motion for reinstatement and moved to vacate the dismissal order of May 21, 1957 based upon an attached affidavit which alleged, among other things:

4. That this matter was then set for October 15, 1956, at which time it was continued until February 5, 1957, and that on said date it was continued until May 21, 1957, at which time an order was entered by this Court on motion of the defendant to dismiss this case for want of prosecution.
5. That there was a clerical error in the office of the Attorney for the plaintiff, and it was not known that this matter was set for hearing on May 21, 1957, before this Honorable Court. If it had been known this office would have appeared on that date.
6. That no notice was received by our office either by telephone or in writing that the defendant was requesting the Court to dismiss said cause of action.
7. That during the month of July it was brought to the attention of the secretary of your affiant that said case had been dismissed for want of prosecution, but that your affiant was not within the country and therefore was unable to take the proper steps to reinstate said cause of action.
8. That your affiant returned to this country during the first week of September 1957, and subsequently contacted the attorney of record for the defendant requesting a stipulation to vacate said order and reinstate said cause, which was refused.
9. That the plaintiff has a rightful cause of action against the defendant for the sale of one Lowrey Organo Piano to said defendant and is entitled to a judgment in the sum of $1,519.25.
10. That the defendant has since the 9th day of February, 1956, had in his possession said Organo Piano and has used said Organo Piano for his personal entertainment and that he has now and in the past refused to pay the plaintiff for said musical instrument.
11. That substantial ends of justice will be defeated if this cause of action is not reinstated.

On that day the court vacated the order of dismissal and reinstated the case for trial. Defendant thereafter, on December 18, 1957, appeared to “ask the court to vacate the order of December 5, 1957 and to deny” the motion. After hearing the matter and “being fully advised in the premises,” the court denied defendant’s motion and reset the cause for trial in April 1958.

The record before us discloses that the cause then took a course of many postponements involving substitution of attorneys for defendant, motions and discovery applications and filing of interrogatories and answers thereto. Eventually, on January 10, 1961, the case went to a jury trial resulting in a verdict for the defendant. A new trial was allowed and the case again reset for trial. The case again languished due to further postponements until August 22, 1961 when it was dismissed for want of prosecution and reinstated within thirty days. It suffered several more dismissals and on each occasion was reinstated within the proper time. On April 8, 1965 the cause went to trial before a jury and resulted in a verdict and the judgment for plaintiff, from which defendant here appeals.

It is conceded that after the lapse of thirty days the dismissal order of May 21, 1957 became final and appeal-able and that relief therefrom could only be had by appeal or a proper section 72 proceeding.

In Harris v. Chicago House Wrecking Co., 314 Ill 500, 145 NE 666 (1924), we find the Supreme Court disposing of a situation quite similar to the one before us. In Harris, after the case was at issue, it was stricken from the trial docket on July 18, 1914. On June 17, 1915 the case, with others which too had been stricken from the docket, was redocketed and placed on the trial call for the following day. When called for trial on June 18, 1915, and plaintiff failed to appear, it was dismissed for want of prosecution. On October 16, 1915, some six months later, and after the term in which the order was entered, had expired, attorney for plaintiff gave notice to defendant’s attorney that he would appear before a judge of the circuit court and ask that the cause be reinstated. The motion was supported by a sworn statement of the plaintiff’s attorney wherein he stated that (p 502):

[T] hrough mistake and inadvertence in his office, the said cause was stricken off of the calendar on July 18, 1914; that having no knowledge that the case had been so stricken, affiant was not advised and had no knowledge that it was a case within the order of January 22, 1915, and did not, therefore, look for the case in the calendar, made up pursuant to said order, of all common law cases stricken from the docket from the date of the Chicago fire to and including the 31st day of December 1914, and being so ignorant the case was again stricken from said last named calendar on June 18, 1915; that a great and irreparable injury will be done to plaintiff in said cause if it is not re-instated, owing to the fact that the Statute of Limitations will have run, and that said injury has resulted through the oversight in affiant’s office of the fact that said cause was originally stricken. Affiant therefore asks that the said cause be re-instated and set down for trial at such time as the court may direct.

On that day the court heard the motion and entered an order reinstating the cause to the docket and directing that it stand for trial in its regular order “over the objections of the attorney for defendant to the jurisdiction of the court to enter such order.” After being set for trial, it was called by mistake of the court clerk on an earlier day. Plaintiff, not appearing, the cause was dismissed but again reinstated during term time and placed again on the trial calendar. (This last reinstatement was not questioned or challenged.) It was eventually up for trial on March 7, 1921. At this time the defendant objected to the further consideration of the case by the court. The court sustained this objection and entered an order finding that it “lost jurisdiction of said cause at the time of the first order of dismissal herein appearing on the record and has never regained such jurisdiction, and that no further proceedings should or could be had thereon and said cause should no longer appear on the docket.” (P 503.)

On an appeal the appellate court affirmed the order and granted a certificate of importance allowing a further appeal to the Supreme Court. In the Supreme Court the facts and circumstances were considered in the light of section 89 of the Civil Practice Act of 1907. (Cahill Ill Rev Stats 1923, c 110, par 89) which abolished the writ of coram nobis and provided that all errors of fact committed in the proceedings which by common law could have been corrected by said writ could be corrected by the court in which the error was committed, on motion made at any time within five years after rendition of the final judgment in the case, upon reasonable notice. The old section 89 was the precursor of the present section 72 and for all intents and purposes herein both are to be treated in the same light. See Seither & Cherry Co. v. Board of Education Dist. No. 15, 283 Ill App 392 (1936).

The plaintiff in Harris contended that the proceeding under which he obtained his order of reinstatement was a proceeding under the section and that the judge entering the order so regarded it. The court, on page 504, said: “We must assume that this latter position is correct, as a proceeding under such section was the only one applicable or available to appellant, as the term had expired in which the order of dismissal had been entered.” See also People v. Union Trust Bank, 406 Ill 208, 92 NE2d 663 (1950).

In the instant case plaintiff had no other recourse after the expiration of the thirty days other than that provided by section 72. Therefore, his only means of relief was to invoke the benefits of the section which allowed him to call the court’s attention to these facts outside of the record and unknown at the time of the judgment order which he believed, if known, would have changed or have prevented the judgment order.

Defendant attempts to distinguish this case from Harris by saying that in the case at bar, no notice was given, no petition was filed and no opportunity was given to join issue. “Therefore, there was no petition or action taken, contemplated by Section 72 of the Act.” After the case on appeal was submitted, plaintiff made motion “to add necessary matter to the Kecord on Appeal”— a certified copy of his notice to defendant’s attorney of the motion for reinstatement made on December 5, 1957. We took this motion with the case. Inasmuch as it reflects matters before the trial court and relevant to the issue before us, the motion is allowed. This disposes of the defendant’s contention that there was no notice given. The contention that there was no petition is also without basis for a “petition” is defined as an application in writing in contradistinction to a “motion” which may be made by word of mouth. The principal difference between motions and petitions lies in the fact that motions, though usually made in writing, may sometimes be made orally, while a petition is always in writing. See Words and Phrases, 32A p 9, the pocket part and authorities cited.

Plaintiff’s application to the court was in writing and in our opinion satisfied the section 72 requirement of a proceeding by petition. And finally, the contention that there was no opportunity to join issue is contradicted by the record. Defendant had notice of the motion of December 5, 1957. Furthermore he made motion on December 18, 1957 to vacate the order of reinstatement and to deny the plaintiff’s motion. The court’s order denying defendant’s motion also recited that the court was “fully advised in the premises.”

Where defendant had preserved no further record of the proceedings, the court’s recital and the record precluded defendant’s questioning the sufficiency of the hearing of December 5, 1957. “Any order entered denying or granting any of the relief prayed in the petition is appealable.” (Ill Rev Stats 1963, c 110 par 72(6)). The defendant failed to appeal from the order entered granting the relief and so the propriety of that judgment is not before us now. Having failed to prosecute a direct appeal, he is precluded from making an indirect or collateral attack now, some eight years later.

For these reasons, the judgment of the circuit court is affirmed. In view of the affirmance, we do not find it necessary to rule upon defendant’s motion to amend his notice of appeal limiting it to a request for reversal without remandment for a new trial and which motion, after being filed, we had taken with the case.

Affirmed.

MURPHY and BURMAN, JJ., concur.

       These subsequent dismissals were not challenged or appealed from at the time nor are they challenged in this appeal as being improper.

       Term times are now abolished and a thirty-day period substituted therefor.


author: JUSTICE LYONS.

text:
    Penn Provision Company, Plaintiff-Appellee, v. Ralph E. Westerfeld, d/b/a Westerfeld’s Market, Defendant-Appellant.
    Gen. No. 49,956.
    First District, Second Division.
    March 29, 1966.
    Rehearing denied April 19, 1966.
    Collen and Kessler, of Chicago (Harold Stotland and Charles N. Brusso, of counsel), for appellant; Jack Marcus, of Chicago, for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roy Thomas, Defendant-Appellant.
    Gen. No. 50,461.
    First District, Second Division.
    March 29, 1966.

      Charles B. Evins and Robert L. Tucker, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered by the Circuit Court of Cook County, in a bench trial, whereby defendant, Roy Thomas, was found guilty of the crime of armed robbery and sentenced to the Illinois State Penitentiary for a term of not less than eight (8) nor more than fifteen (15) years.

On January 17, 1964, at approximately 10:15 p. m., Taft Stewart, while operating his taxi cab in a northerly direction on Cottage Grove Avenue in the City of Chicago, was waiting for the light to change at 64th Street. He was hailed by a man standing on the southwest corner of the intersection. The man, allegedly defendant, Roy Thomas, entered the cab and requested to be transported to 67th and Evans. When they arrived at the destination, Stewart stopped the taxi cab and reached back to collect the fare. The passenger stuck a gun in his face and announced a stickup. After giving the money to him, Stewart was ordered to get in the back seat. When he did this, he observed the passenger’s face, which was illuminated when the door was opened. The passenger got out of the cab and tried to get in the front seat, but was unable to do so because the door was locked. The passenger ordered Stewart to get out of the car and unlock the front door. While doing this, the cab driver again observed the defendant’s face. He later testified that he saw him at least three times. Besides taking money, the passenger also took the driver’s overcoat and suit coat. After the passenger fled, Stewart drove away and contacted the police. He described the man who had robbed him as being of light complexion, between 5 feet 8 inches and 5 feet 9 inches tall, weighing between 140 and 150 pounds and wearing a gray overcoat and dark gray hat.

Three days later, on January 20, 1964, at approximately 1:30 a. m., Officers Mack Crosby and Harry Jacobs arrested defendant, after stopping a Checker Cab in which he was riding, at 70th and Cottage Grove. He was wearing a light gray overcoat and dark gray hat. He was not wearing glasses. Defendant was searched and a pistol similar to the one used to rob Stewart was found on his person.

Later that day, Officer Robert Breckenridge went to see Taft Stewart and showed him a group of pictures and asked him whether he recognized any of them. Stewart selected a photograph of defendant and said that that was the person who had robbed him. The photograph revealed that defendant was wearing glasses although Stewart did not recall that he was wearing them at the time of the robbery. At 8:00 p. m. that evening, Stewart went to the Third District Police Station and identified defendant from a lineup of approximately five men.

Defendant was tried by a court without a jury. During the trial, Taft Stewart and Officers Crosby, Jacobs and Breckenridge testified for the prosecution. Stewart again identified defendant as being the person who had robbed him.

The defense offered in evidence a copy of the arresting officer’s case report concerning defendant. The case report indicated that Thomas’ height was 5 feet 2 inches rather than 5 feet 8 inches. Defense counsel questioned Officer Crosby about the discrepancy. Crosby testified that he did not write up the complete report and that the lock-up keeper had apparently filled in that part of the report showing defendant’s height. Stewart, on cross-examination, testified that he did not tell the police that the man who robbed him was 5 feet 2 inches, but said that he had given the man’s height as between 5 feet 8 inches and 5 feet 9 inches.

The defense also offered the testimony of Velva Farley, defendant’s girl friend for seven years, who testified that she was with defendant on the evening in question from 6 o’clock until 11:30 p. m.; the testimony of defendant’s mother who testified that her son returned home at 12:00 midnight, at which time he was wearing clothing other than that described by Stewart; and the testimony of defendant himself who denied that he committed the crime and said that he was with Yelva Farley at the time in question.

Defendant was found guilty, and at a hearing in aggravation the State showed defendant’s prior record, which included a 1938 burglary and larceny conviction; a 1948 burglary conviction and a 1948 assault with a deadly weapon conviction. Defendant was sentenced to imprisonment in the penitentiary for a period of a minimum of 8 years and a maximum of 15 years.

It is defendant’s theory of the case that the finding and judgment that defendant was guilty beyond a reasonable doubt are not supported by the record and that the court erred in admitting prejudicial testimony during the course of the trial.

It is plaintiff’s theory of the case that defendant was proven guilty beyond a reasonable doubt and that the trial was free of any errors of a prejudicial nature.

Defendant first contends that his identification by Stewart was not sufficient to prove him guilty beyond a reasonable doubt. The basis for this argument is the fact that the arresting officer’s case report indicated that defendant’s height was 5 feet 2 inches, whereas it was actually 5 feet 10 inches. We disagree. This argument is based on the premise that the witness’ original description of the offender’s height must be the same as that contained in the officer’s report. The witness, however, denied this by testifying that the man who held him up was “between 5'8" and 5'9" roughly” and that he never told anyone that his assailant was about 5 feet 2 inches.

Positive identification by one witness who had ample opportunity for observation is sufficient to support a conviction. People v. Martin, 62 Ill App2d 203, 210 NE2d 798 (1965). Unless the defendant can show that it was unreasonable for the trial court to believe the witness Taft Stewart, its judgment as to the truth or falsity of his testimony concerning the description which he gave to the police must be respected by this court. People v. Stewart, 62 Ill App2d 428, 211 NE2d 154 (1965).

The witness testified that his assailant was wearing a dark gray hat and gray tweed overcoat. These were identical to the clothes defendant was wearing at the time of his arrest three days later. Stewart testified that the robber was light complected and weighed, roughly, 140 to 150 pounds. He did not, however, mention anything about eye glasses. According to the arresting officers, defendant was not wearing eye glasses at the time of his arrest, although he testified that he always wore them and was doing so at the time of his arrest. Stewart’s description, however, was in other respects accurate and therefore it was reasonable for the court to believe that he was telling the truth when he said that he originally described the robber as being between 5 feet 8 inches and 5 feet 9 inches tall. Since the essentials were present in the victim’s opportunity to observe and his positive identification, the sufficiency of the recognition was a question of fact for the trial court. People v. Ervine, 64 Ill App2d 82, 212 NE2d 346 (1965).

Defendant further argues that Stewart testified that the robber was shorter than he, but that the evidence clearly established that defendant was % inch taller than the witness. The discrepancy, according to Stewart’s observation, was one inch, though his impression was that he was the taller man. The error in judgment can be attributed to the fact that Stewart was unable to make a precise comparison. Nevertheless, the discrepancy was not so great as to vitiate the accuracy of his identification. As was said in the Ervine case, (supra) “minor discrepancies in identification do not require reversal.”

Defendant also argues that because the police officer who wrote the original report was never called by the State to either confirm, deny or clarify the report the only proper inference to be drawn from the failure is that he accurately entered upon the report the exact description given to him by the complainant. Stewart, however, testified that he described the robber as being between 5 feet 8 inches and 5 feet 9 inches. Defendant could have impeached the witness by producing the officer himself. Since the witness was equally available to both the defense and prosecution, the above inference is not chargeable to the prosecution. People v. Munday, 280 Ill 32, 117 NE 286 (1917).

Defendant next contends that evidence pertaining to the high crime rate in the neighborhood, e. g., the fact that many cab robberies had occurred in the immediate past, was not relevant and was unduly prejudicial. The State contends that this evidence was relevant to show that the officers had probable cause for making the arrest. The State argues that it was competent to show that there had been a series of cab robberies in the vicinity where the arrest took place, and that this fact considered in connection with other circumstances such as a speeding cab, followed by a conversation with the driver away from the vehicle, followed by the officers’ observation of the passenger, gave rise to a reasonable belief that there was probable cause for arresting defendant. We disagree with the State. There was no reason for them to introduce evidence that the officers had probable cause for making the arrest. Defendant never objected to the arrest on the ground that the officers had an unreasonable belief that defendant had committed an offense. Thus evidence that a series of cab robberies had occurred in the vicinity was not relevant.

We agree with the State, however, that defendant was not prejudiced as a result of the admission of this evidence in that it fell short of relating to defendant. In the instant case, the trial judge was acting as a trier of fact. There is a presumption in a bench trial that the trier of facts only considers competent evidence. People v. French, 33 Ill2d 146, 210 NE2d 540 (1966), People v. Cox, 22 Ill2d 534, 177 NE2d 211 (1961).

Defendant cites People v. Smith, 55 Ill App2d 480, 204 NE2d 577 (1965), in support of his position. That case can be distinguished, however, in that there was evidence in the record that the trial judge affirmatively relied on incompetent evidence. In the instant case, there is nothing in the record to indicate that the trial judge affirmatively relied on the improper evidence introduced by the State. There is, therefore, no indication in the record that defendant was prejudiced.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.