author: Mr. JUSTICE JONES

text:
    Carol Bilderback et al., Petitioners-Appellants, v. Trico Community Unit School District No. 176, Perry, Jackson, and Randolph Counties, Defendant-Appellee.
    (No. 72-103;
    Fifth District
    May 25, 1973.
    Robert N. Gandy, of Peek and Gandy, of Du Quoin, for appellants.
    Wolff, Jones & Lawder, of Murphysboro, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Petitioners appeal from an order of the Circuit Court, First Judicial Circuit, Jackson County, quashing the summons and dismissing petitioners’ cause of action in an election contest for a recount in a bond and special issue referendum in Trico Community Unit School District No. 176, Perry, Jackson and Randolph Counties.

The election was held on September 18, 1971, at five polling places within the district. The verified petition states that the results of the election were announced on September 23, 1971. The statement of contest and petition was filed on October 18, 1971, with the circuit clerk of Perry County and it was styled “In the Circuit Court, Twentieth Judicial Circuit of Illinois, Perry County.” The defendant school district filed a special appearance objecting to the jurisdiction of the court over the defendant and the subject matter, pursuant to section 20 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, sec. 20), and as grounds contended that the true legal name of the district is “Trico Community Unit School District No. 176, Jackson, Perry and Randolph Counties, Illinois”; that statutes give power to hear election contests only to the circuit court of the county having jurisdiction of the school district involved; that the sole and only county having jurisdiction over the school district is the County of Jackson; all steps in its formation and administration have been carried out by officers of the County of Jackson, Illinois. Further, that no portion of the administration or control of the said school district is carried on in the County of Perry, Illinois; that the greatest portion of the geographic area of the district, and the greatest number of students attend in Jackson County. The special appearance was supported by affidavits of superintendents of educational service regions for the Counties of Jackson, Perry and Randolph and the superintendent of the Trico Community Unit School District and the district secretary.

On November 8 petitioners asked leave to amend the petition to set up the school district name as contained in the special appearance. Petitioners also filed an answer to the special appearance setting forth, in part, that section 7 of the Civil Practice Act provides that “Actions must be brought against a public, municipal, governmental or quasi-municipal corporation in the county in which its principal office is located.” The answer further alleged that the board may employ a superintendent who has certain statutory duties; that the Trico superintendent’s office is in Perry County; and that the office of the Trico District is the office of the superintendent in Perry County. This answer was not verified. Arguments were heard and the presiding judge ordered on

November 18, 1971, that “this court” does not have jurisdiction of the cause of action; that the proper jurisdiction is Jackson County; that the special appearance “is granted”; and that the summons issued out of this court is quashed, and further “in accordance with section 10(2) of the Civil Practice Act, this cause is ordered transferred to the Circuit Court of Jackson County, Illinois.” The record from Perry County was then transferred to and filed in the Circuit Court of Jackson County. Defendant then filed a special appearance in the Circuit Court of the First Circuit, Jackson County, referring to the court file from Perry County and alleging that an election contest is a statutory proceeding and must be brought within 30 days of the date in which the results of election are declared, that the Circuit Court of Jackson County does not have jurisdiction because the contest was not filed “in this court” within the time limited by statute. An answer was filed and the judge sitting in Jackson County ordered the summons issued by the clerk of Jackson County quashed and the action of petitioners dismissed. Petitioners appeal from the order of dismissal entered in Jackson County.

The Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, sec. 1 et seq.) is applicable to election contests (see Lang v. Board of Ed. of Community Unit School Dist. No. 16, 109 Ill.App.2d 195, 249 N.E.2d 862), but, of course, “the separate statutes control to the extent to which they regulate procedure.” (Section. 1, Civil Practice Act.) Under the terms of section 20 of the Civil Practice Act the filing of a special appearance does not constitute a request to the court to enter any judgment between the parties except upon the limited basis of whether the court has jurisdiction. The defendant did not object to the action of the Circuit Court of Perry County in transferring the cause to the Circuit Court of Jackson County, although, according to defendant, the order, entered in the Circuit Court of Perry County was a final and appealable order.

The entire question before us is the propriety of the action of the court in Jackson County in dismissing this case and quashing service of. summons on the basis that it had no jurisdiction because the action was not timely filed in Jackson County. Defendant argues that it was essential to the jurisdiction of an election contest to file it within the terms Ill. Rev. Stat. 1971, ch. 46, art. 23, sec. 20, providing: “The person desiring to contest such election shall, within thirty (30) days after the person whose election is contested is declared elected, file with the clerk of the proper court a petition, in writing, * * The defendants argument is that the petitioners have a filed action in Perry County and it has been determined by the Perry County court that it has no jurisdiction and no appeal was taken from that determination; that it, therefore, is the law of the case that Jackson County solely had jurisdiction and the case was not filed in Jackson County within the 30 days provided by the statute. Defendant relies primarily upon Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375, where it was said, in substance, that an election contest exists solely by statute, it is not a common law right, nor an action in law or in equity, although it is governed by chancery practice, and the statutory procedure must be followed.

In article VI, section 9 of the Constitution of the State of Illinois original jurisdiction is given to circuit courts of aU justiciable matters. The legislature has vested circuit courts with authority over certain election contests, including this one. Both parties agree, as they must, that the circuit court has jurisdiction over election contests if their jurisdiction is invoked on a timely basis and in a proper manner. It is defendant’s position, in sum, that the jurisdiction of the Circuit Court of Jackson County has not been invoked in the required manner, ie./the action was not timely filed.

We think the defendant’s position is not tenable, that the petitioners have taken the steps necessary to gain jurisdiction over defendant and that the cause was properly pending before the Circuit Court of Jackson County.

Both sides refer to section 10(2) of the Civil Practice Act which provides as follows: ‘Whenever it appears that an action has been commenced in a comt which does not have jurisdiction to determine the action, the court shall, at any time, upon its own motion or upon the motion of any party, order the cause transferred to a court of competent jurisdiction in a proper venue.” It seems to us that this provision of the Illinois Civil Practice Act controls the matter. Defendant refers us to a Federal statute, 28 U.S.C. §1406(a), which applies in the case of a filing in a Federal District of wrong venue, but this has no application here. By its terms, the Illinois statute is made applicable not to changes of venue but in cases in which tire court does not have jurisdiction to determine the action. This is precisely the contention which was made by the defendant in the Circuit Court of Perry County and in which it was sustained. The court is clearly empowered, even upon its own motion, to transfer the cause to a court of competent jurisdiction in a proper venue. The statute expressly contemplates that the case not be dismissed but rather transferred, and this provision for transfer must have been intended to apply to a situation such as we have here. Surely the legislature would not have intended that a number of election contests be commenced within several counties where a district has offices in order to have a determination of the county in which the principal office existed. We can hypothesize a situation in which if multiple election contests were brought in multiple counties that the courts might arrive at multiple conclusions as to the county where the principal office was located. Under these circumstances the parties might be put to the expense of multiple trials of the same election contest in various counties.

Since the legislature has undertaken to empower the trial court to transfer the case where a particular court has no jurisdiction, and since we are dealing with a type of action which is not a common law controversy, but is a statutory creation by the legislature, the legislature must be deemed to have power to control the life or survival of its own progeny.

It must be considered that this is not a surprise to the defendant who was apprised of the original action. The court has ordered the preservation of the ballots. If delay has occurred in the conduct of the contest it occurred in consequence of the action of the defendant in securing the action of the trial court which it desired. Indeed, if the action of the court in Perry County was final and appealable, and its finding that Jackson County was the proper jurisdiction did establish the law of the case in that it was final and appealable, then it would seem that the provision of the same order transferring the cause to Jackson County was also final and appealable. But we do not have before us the question of whether the Perry County order was final and appealable and therefore we do not decide it; but we observe that this argument cuts both ways. It seems persuasive to us that a circumstance of uncertainty about the proper location of the principal office in an essentially local action such as an election contest should not be the occasion for cutting off the right of contesting an election. This would appear to be a proper case for the court to exercise its power of transfer under the precise conditions established by the statute. This cause is accordingly reversed and remanded to the Circuit Court of Jackson County for further proceedings in conformity with this decision.

Reversed and remanded.

G. MORAN, P. J., and CREBS, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leroy Jackson, Defendant-Appellant.
    (No. 72-58;
    Fifth District
    May 29, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (James W. Jerz and Martin P. Moltz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Leroy Jackson, pleaded guilty to the crime of murder in the Circuit Court of St. Clair County and was sentenced to the penitentiary for a term of not less than 14 nor more than 20 years. The main thrust of his appeal is the contention that the trial court erred in accepting his guilty plea without sufficient evidence of his competency. An understanding of this contention requires a detailed analysis of the events leading up to his plea.

The murder with which defendant was charged occurred on May 25, 1967. He was arrested and later arraigned on September 12, 1967, and an attorney was appointed to represent him. On October 17, in response to a petition filed by defendant’s sister, the court ordered a psychiatric examination. Reports were filed by Dr. John McMahan and Dr. Frank Perez finding that their examinations revealed no evidence of any psychotic process, and that, in their opinion, defendant possessed sufficient mental capacity to understand the nature of the charge against him and was able to aid and participate with counsel in his defense.

Approximately two months later, on January 12, 1968, defendant’s counsel filed another petition requesting a psychiatric examination, stating that he was unable to prepare an adequate defense because defend-' ant wholly refused to cooperate with him relative to the facts of the case and that it appeared doubtful that defendant was capable of understanding the nature of a plea. The court ordered that defendant be given an encephalogram examination by Dr. Phillip Dennis. The encephalogram was reported as essentially normal, but the doctor’s report, dated February 8, 1968, found that defendant was suffering from a bizarre psychotic disorder of a currently indescribable type, that he could not now be expected to continuously cooperate with counsel, nor could he continuously distinguish right from wrong. The report concluded that defendant’s condition warranted state hospitalization and intensive observation.

On February 9, 1968, defendant was admitted to the Illinois Security Hospital and, on his initial examination, Dr. I. D. Newmark reported that he was cooperative in his behavior and seemed to comprehend, but that he would not utter a sound. On February 25, Dr. William Haines, a consulting psychiatrist, found that defendant was undergoing a sociopathic personality disturbance, but that it could be expected that he would soon be ready to be returned to court and he could see no reason for continuing to hold him in the hospital. On March 9, H. Wayne Lacey, a consulting psychologist, found that defendant was intellectually in the high, dull normal range, that his responses suggested characteristics of a sociopathic personality, that from the mental aspect it seemed that he was currently ready for trial but that he should first be required to undergo a reasonable period of psychiatric care and treatment. On March 18, Dr. Leonard Horecker, a consulting psychiatrist, diagnosed defendant’s condition as a schizophrenic reaction, chronic undifferentiated type, and that he seemed to have experienced an acute exacerbation of his symptoms which, with his present improvement were no longer present. From the hospital’s progress notes it appears that in the rest of March and April defendant continued to improve, was given' a work assignment in the patients’ dining room, and was commended for the courteous and efficient manner with which he conducted himself and the concern he showed for his fellow patients.

On May 9, 1968, defendant was brought before the court for his first competency hearing, but while the jury was being empanelled he started to disrobe and a mistrial was declared. October 21, 1968, he was again brought to court, and in his presence, his attorney informed the court that he wanted to waive his right to a jury and have the court decide his competency. In reply to a question from the court defendant confirmed this request, and the jury was thereupon considered waived and the court proceeded with the hearing.

No oral evidence was heard. The defendant introduced the report of Dr. Dennis, and the State introduced the other reports above summarized. In addition, other records were admitted relating to the mental care and treatment of defendant while he was incarcerated in a Michigan prison several years previously. All of the documents were admitted with the understanding that their contents would be what the individuals would testify to if they were present.

From the record it appears that the court reviewed these documents and basing his conclusion on such evidence, coupled with his own observation of defendant’s actions, his demeanor, and appearance, he found defendant able to understand the nature and purpose of the proceeding against him, and able to assist counsel at all times in his defense. After appropriate admonitions defendant’s plea was accepted.

Defendant now contends that the court, not being a qualified psychiatrist, was not competent to judge defendant’s rationality on the basis of his own personal observations; that he did not have sufficient expert diagnosis to determine defendant’s mental status; and that the court mistakenly based his conclusions upon the two earliest psychiatric examinations believing them to be the two latest.

We cannot agree with any one of defendant’s contentions. In the first place, observation of a person’s demeanor and appearance is an important, though not the only factor, to be considered in determining another’s competency. Here the court had observed defendant in every one of his court appearances from time of his arraignment. He had acceded to each request for psychiatric examination and defendant had been placed in a hospital for diagnosis and treatment. The reports from psychiatrists and psychologists were numerous and all were made available to the courts, and it was on these reports, and his personal observations, that he based his decision. It was only in Dr. Dennis’ report that defendant’s condition was called psychotic and he even referred to it as an indescribable type. The three latest reports were by Dr. Haines, on February 25, finding that defendant was undergoing a sociopathic personality disturbance and stating that he could see no reason for continued hospitalization; by H. Wayne Lacey, a psychologist, finding that on March 9, defendant’s responses suggested characteristics of a sociopathic personality and that mentally he was ready for trial; and by Dr. Horecker, on March 18, diagnosing defendant’s condition as a schizophrenic reaction which was no longer present.

It was with the aid of this extensive medical background that the court reached its conclusion as to defendant’s competence. We agree with his decision, for, as stated in People v. McElroy, 125 Ill.App.2d 237, while a person may possess a sociopathic personality and suffer from psychological and social disturbances, these circumstances of themselves are not sufficient to raise a bona fide doubt as to his competence. We conclude that defendant was competent at the time he entered his plea and that it was made with full understanding after appropriate admonitions.

Defendant next contends that the court erred in accepting his plea without first inquiring into the circumstances surrounding the alleged offense. He argues that if defendant had been asked about the facts of the offense it may have appeared that his acts constituted a lesser crime than murder, or that the defense of insanity may have been available. This is an attempt to make Supreme Court Rule 402(c) retroactive, and defendant so concedes. He contends that substantial justice and due process requires that the factual basis for a plea should be determined even in those cases predating the rule. This identical question was presented to us previously in People v. Howland, 2 Ill.App.3d 553, and we there held that the rule should have prospective application only, based on the rationale of People v. Williams, 44 Ill.2d 334. The circumstances of the case before us gives us no reason to change that position.

The judgment of the Circuit Court of St. Clair County is affirmed.

Affirmed.

EBERSPACHER, P. J., and G. MORAN, J., concur.


author: PER CURIAM:

text:
    Daniel Williams et al., Plaintiffs-Appellants, v. Clyde Franks, d/b/a Franks Lounge et al., Defendants-Appellees.
    (No. 57354;
    First District (1st Division)
    May 29, 1973.
    GOLDBERG, J., took no part.
    Sheldon D. Engle, of Chicago, for appellants.
    Herbert Baker, of Chicago, (Robert Agin, of counsel), for appellee Franks Lounge.
    John Mlade, of Chicago, for appellee Charles Petrik.
   PER CURIAM:

An action was filed by plaintiffs pursuant to the provisions of Section 135 of the Liquor Control Act to recover for injuries received by them in an altercation with unknown persons who allegedly had been served alcoholic beverages in a cocktail lounge owned by defendant Franks and located in a building allegedly owned by defendants Petriks. (Ill. Rev. Stat. 1971, ch. 43, sec. 14.) The jury returned a verdict for the defendants.

A threshold question is occasioned by the failure of the appellees to file a brief on this appeal. Although we would be justified in summarily reversing the judgment in this case, we adhere to the general rule that the trial courts judgment should not be reversed except after consideration of the merits of the appeal. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264, 254 N.E.2d 814.

The plaintiffs, who are brothers, testified at trial that they entered the Franks Lounge in Cicero about 11:00 P.M. on September 7, 1969, with a friend named Shield. They sat at the bar, Daniel Williams in the center, his brother to his left and Shield to his right, and were served drinks by defendant Franks. Thomas Williams stated that a man approached him and requested that Williams buy him a drink, which Williams refused to do. Sometimes thereafter, a group of ábout six men entered the lounge, one of whom was described as very large and another of whom was described by the plaintiffs as light-haired, boisterous and loud.

The plaintiffs testified that the light-haired man positioned himself next to Thomas Williams, and the entire group of men, which had then entered, was served alcoholic beverages by Franks. The light-haired man elbowed Thomas Williams in the side several times. Thomas Williams and Daniel Williams changed seats, and the light-haired man elbowed Daniel in the side twice. After the Williams and Shield finished their drinks, they were about to leave when the light-haired man summoned one of the other members of his group, who shoved Daniel Williams back. The light-haired man struck Daniel in the face with his fist. A fight then broke out involving the two Williams and Shield on the one hand, and numerous patrons of the lounge on the other, resulting in substantial injuries to the plaintiffs. The police were summoned, and the plaintiffs were taken to separate hospitals They testified that the persons who started the fight were intoxicated, they were served several alcoholic drinks by Franks and that Franks aided in the assault.

Defendant Franks testified that when the two Williams and Shield entered the lounge, the light-haired man was already there; Daniel Williams was loud and boisterous; none of the three was intoxicated; while the witness was speaking to his off-duty employee, he observed Daniel Williams strike the light-haired man in the face; a fight broke out and he was prevented from telephoning the police due to the rush of customers; his wife summoned the police. The witness further testified that the plaintiffs fought their way out of the lounge, but that Daniel Williams returned with an automobile jack and demolished the cigarette machine and threatened to kill everyone in the lounge. The police arrived and the plaintiffs were arrested.

The court sustained an objection to a question later asked of the witness, whether he filed a complaint against the plaintiffs. The plaintiffs were further not permitted to introduce evidence in an effort to rebut the matters brought out concerning plaintiffs’ arrest and related matters. The court also refused plaintiffs’ tendered instruction number nine and gave to the jury, over objection, defendants’ tendered instruction number one, both of which related to the burden of proving provocation.

Plaintiffs first contend that the court erroneously instructed the jury relative to the burden of proving provocation.

Plaintiffs’ tendered instruction number nine, which was refused, would have instructed the jury that "[i]n this case defendant [sic] has asserted the affirmative defense that Daniel Williams provoked the fight which lead [sic] to the injuries. The defendant [sic] has the burden of proving this defense.” The court, however, instructed the jury that “[i]n order for the Plaintiff [sic] to recover under the Dram Shop Act for personal injuries, the injuries must not be due to an act of provocation on the part of the Plaintiff [sic].”

Although the instruction tendered by the plaintiffs is not entirely accurate, since the defense of provocation was not pleaded in the defendants’ answers but rather was broached in the complaint, the evidence adduced at trial clearly shows that the case was tried as if such defense had been raised. Furthermore, because plaintiffs raised the matter of non-provocation in then complaint does not necessarily mean that they were required to prove such non-provocation. It has long been established that a party is not required to prove a negative averment, the burden of proof being on the party who asserts the affirmative. See In Re Estate of Sandusky, 321 Ill.App. 1, 52 N.E.2d 285; Levine v. Pascal, 94 IlI.App.2d 43, 236.N.E.2d 425.

In the case of Tresch v. Nielsen, 57 Ill.App.2d 469, 207 N.E.2d 109, the court was concerned with an instruction couched in much the same language as the instruction given to the jury in this case. The court there noted that the instruction was peremptory in nature and that provocation in a dramshop case is an affirmative defense. The defendants in the instant case had the burden of proving the matter of provocation and the court therefore was in error in refusing to give plaintiffs’ instruction number nine and in giving defendants’ instruction number one. It cannot be determined what effect that instruction had on the jury’s verdict and the judgment must therefore be reversed.

It is unnecessary to decide the remaining issues raised in plaintiffs’ brief inasmuch as this matter is to be remanded, and it is unlikely that the matters giving rise to those issues will occur again in the event of a re-trial of this case.

For these reasons the judgment is reversed and the. cause is remanded for proceedings not inconsistent with the views expressed.

Judgment reversed and cause remanded.

Mr. Justice Goldberg took no part in the consideration or decision of this case.


author: Mr. JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ed Jennings, Defendant-Appellant.
    (No. 56711;
    First District (3rd Division)
    May 24, 1973.

      Francis E. Andrew, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Roberta K. Cole, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with Solicitation to Commit Mob Action, a misdemeanor. (Ill. Rev. Stat. 1967, ch. 38, par. 8 — 1.) After a bench trial, he was found guilty of that charge. He was sentenced to serve 30 days in jail and ordered to pay a fine of $300. On appeal defendant contends that the eight-month delay between the issuance of the arrest warrant and his arrest deprived him of due process and the right to a fair trial; that the complaint was insufficient as a matter of law; that he was not proved guilty beyond a reasonable doubt; and that there was a fatal variance between the proof and the pleadings.

The complaint charged that the offense in question occurred on August 27, 1968. The complaint was filed and the arrest warrant was issued on August 28, 1968. Defendant was arrested on May 12, 1969, 258 days later.

Prior to trial, defendant filed a written motion to dismiss the complaint on the ground that the delay in arresting him so prejudiced his ability to present a defense as to deny him the possibility of a fair trial. Defendant was the sole witness to testify at the hearing on this motion.

Defendant testified that during this entire period he was a full-time student at the University of Illinois Circle Campus, in the City of Chicago. The arrest warrant bore a notation that defendant was a student at the University. Defendant testified that between August 27, 1968, and May 12, 1969, he had no idea that he was wanted on the instant charge. During this period his permanent address was 1519 South 58th Avenue, Cicero, Illinois. He presently resided at 3006 West Fullerton, and had previously resided at 2028 North Halsted Street and 1719 North Richmond Street, all in the City of Chicago. However, he maintained the address in Cicero as his permanent mailing address throughout this time. His sister, her husband and children resided at the Cicero address. They received his mail and telephone calls, and he contacted them every two or three weeks. The address in Cicero was listed as his permanent address at the University. It was also the address appearing on his driver’s license and draft card.

During this period defendant stated that he was twice cited for traffic violations, appeared in court and was acquitted of the traffic charges. He stated that during the time in question he had never attempted to hide from, or avoid contact with the police. Since August 27, 1968, defendant had never resided outside the county. He had gone out of town on several occasions, but never for more than a few days. Defendant graduated from the University on June 15, 1969.

Between August and May, defendant was an active member of a non-violent faction of Students for a Democratic Society, participating in lectures, discussions, demonstrations and other activities. At some of these activities defendant testified that he observed, and was observed by, members of the Chicago Police Intelligence Division. On one occasion, one of the officers spoke to him and indicated that he knew defendant and was aware of defendant’s employment at one of the métropolitan newspapers.

In denying defendant’s motion to dismiss the complaint, the trial judge stated that he believed the police could have located the defendant through his contact with the University of Illinois. However, absent evidence that a particular attempt to find defendant would have been fruitful, the judge felt compelled to deny the motion to dismiss. The trial court also denied a defense motion to compel the State to show diligence in arresting defendant.

Immediately prior to trial, defendant’s request for a rehearing on his motion to dismiss the complaint was denied. At this time, defendant made an offer of proof that his sister would testify that he did maintain a permanent mailing address at her home and that the police had never come to her home seeking her brother. Defendant made a further offer of proof that Officers Ritenour, Olsen and Grubisie of the Chicago Police Department would testify that through their intelligence operations they knew that defendant was involved in the S.D.S. between August and May, and that defendant was a student at the University of Illinois during this time.

At trial, the State offered the testimony of two members of the Chicago Police Intelligence Division, Officers James Tobin and Jerome Ritenour. The two officers testified that they were partners, and were working together during the Democratic National Convention. On the evening of August 27, 1968, between 11:30 and midnight, the officers were together at the intersection of Clark, LaSalle and Eugenie Streets just outside Lincoln Park. They observed a crowd of from 2,000 to 5,000 persons emerging from the park.

Officer Tobin testified that defendant was leading this crowd and encouraging them to attack the police. He further testified that, in response to defendants urging, the crowd came out of the park throwing rocks and missiles.

Officer Ritenour testified that the crowd was driven out of the park by police officers who had formed a wedge behind the crowd. Officer Ritenour also stated that defendant was in the midst of the crowd, not leading it. The witness stated that he heard defendant shouting, but that he did not see defendant throw any object.

With regard to efforts to locate defendant after the issuance of the arrest warrant, Officer Tobin testified at trial that he checked a Halsted Street address obtained from the University of Illinois Circle Campus. The address proved to be a vacant lot, but he could not recall the exact number. The witness did not check the Cicero address. Officer Tobin further testified that, while he visited the University campus, he did not speak to defendant’s teachers, nor did he visit' any of his classes. The witness did not know that defendant had graduated. At this point, the trial court denied defendant’s motion for a continuance to rebut the testimony of Officer Tobin regarding the information he received at the campus.

Defendant testified at trial that he had no particular memory of the evening in question. He testified that at the time of the 1968 Democratic National Convention he was a member of the S.D.S. and had participated in several demonstrations in and around Lincoln Park. However he had no independent recollection of where he was, what he was doing or whom he was with on August 27, 1968. Defendant also testified that he was no longer a member of S.D.S.

Defendant’s initial contention is that the pre-arrest delay of 258 days caused the fading of his memory, prejudiced his ability to formulate a competent defense, and thus deprived him of the right to a fair trial.

The Illinois Supreme Court has recognized that delay between the filing of a complaint and the informing of a defendant of the charges against him through the arrest process could possibly so prejudice a defendant as to violate his right to a speedy trial. (See People v. Love, 39 Ill.2d 436, 235 N.E.2d 819.) The possible prejudice of such a delay has also been recognized by the federal courts (Godfrey v. United States, 123 U.S. App. D.C. 219, 358 F.2d 850), as well as the courts of other states. Rost v. Municipal Court of Southern Judicial Dist., 184 Cal. App. 507, 7 Cal.Rptr. 869.

Delay may be so prolonged and unjustified that prejudice will be presumed; however, in other instances the particular facts of the situation must dictate whether the State-occasioned delay has been unreasonable and prejudicial to the defendant. (People v. Love, supra.) In the instant case the delay was not so prolonged or unreasonable as to produce a presumption of prejudice. It is necessary, therefore, to examine the particular circumstances to determine whether this delay of 258 days was so prejudicial to defendant as to be violative of due process.

It is apparent that the pre-arrest delay was caused by the State. Defendant was accessible to arrest at any time during the eight month period. The police were aware that defendant was a student at the University of Illinois Circle Campus. There was also unrebutted evidence that the police were aware of defendant’s place of employment and that one of the officers of the intelligence division spoke to defendant during this period. The issue remaining is how much prejudice accrued to defendant as a result of this delay.

Courts have recognized that loss of memory occasioned by such delay can be so prejudicial to an accused as to constitute a violation of constitutional rights. (See Godfrey v. United States, supra; Jackson v. United States, 122 U.S. App. D.C. 124, 351 F.2d 821; Ross v. United States, 121 U.S. App. D.C. 233, 349 F.2d 210.) With regard to a demonstration of such prejudice, often all an accused will be able to show is “a plausible claim of inability to recall or reconstruct the events of the day of the offense.” (Ross v. United States, supra, at p. 215.) “The issue of prejudice being what it is, it will only be a rare case in which the accused can show much more than this.” Jackson v. United States, supra, at p. 823.

In the instant case, the defendant testified to a loss of and fading of memory concerning the incidents which occurred on August 27, 1968. The instant offense charged was not the usual singular act, but rather was a course of conduct during a single heated incident occurring within a week of heated incidents. Eight months could do much to erase the memory of a few minutes during an extremely tumultuous week. Furthermore, an examination of the testimony of the prosecution witnesses reveals considerable damage to memory. There were substantial conflicts and discrepancies in the two officers’ testimony. It is questionable whether Officer Ritenour’s account of the events would establish the offense charged against the defendant. In any case, the variances in the testimony of the two officers, simultaneously observing the same conduct of defendant, demonstrated that memory had suffered. It must also be noted that the officers, immediately after the occurrence, were aware that criminal proceedings would ensue. Presumably therefore, they would mark the date and events in their memory, while defendant was unaware of any subsequent proceedings, or of the importance of noting times and events, until over eight months had elapsed. We find that the pre-arrest delay of 258 days caused by the State was so prejudicial to defendant as to have deprived him of a fair trial.

In People v. Love, supra, our Supreme Court found that a 148 day delay between the filing of a complaint and defendant’s arrest for the offense of leaving the scene of an accident was insufficient to show prejudice. The facts of that case are most clearly distinguishable from the present case. In that case the offense was more clearly defined, and, most importantly, there was no testimony offered by defendant that his memory had, in fact, been impaired. Additionally, the court in Love cited and explicitly distinguished Godfrey v. United States, supra, noting that there actual prejudice had been shown. The delay and resulting prejudice in Godfrey is indistinguishable from that in the present case.

In view of our holding as to defendant’s initial contention, it is unnecessary to consider his additional arguments.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

DEMPSEY, P. J., and McGLOON, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Tribble, Defendant-Appellant.
    (No. 57638;
    First District (1st Division)
    May 29, 1973.
    James J. Doherty, Public Defender, of Chicago, (Xavier G. Velasco, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

BURKE, P. J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dorothy Harris et al., Defendants-Appellants.
    (Nos. 56605, 06, 07, 08 cons.;
    First District (1st Division)
    May 29, 1973.
    James J. Doherty, Public Defender, of Chicago, (Mark Collens and Robert M. Gray, Assistant Public Defenders, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Patricia C. Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

HALLETT, J., took no part.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Julius Rutili, Defendant-Appellant.
    (No. 56884;
    First District (4th Division)
    May 9, 1973.
    Julius Lucius Echeles, Frederick F. Cohn, and Carolyn Jaffe, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James E. Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Upon a trial by jury, defendant was convicted of the crime of unlawful sale of narcotic drugs and was sentenced to the penitentiary for a term of from one to five years. He appeals, contending that he was not proven guilty beyond a reasonable doubt and that his right to a fair trial was prejudiced by certain actions of the court and prosecution.

The evidence shows that William Passmore, a police informer and narcotic addict, came to defendant’s drugstore on January 9, 1970. Defendant, a registered pharmacist, was on duty. Passmore told the defendant that he was sick and asked the defendant to help him. Defendant said, “Will codeine help you?” Passmore said, “Yes.” Thereafter, the drugs in question were passed from the defendant to Passmore who immediately delivered them to police officers who were waiting and observing the transaction. Shirley Krause, a chemist with the Chicago Police Crime Laboratory, testified that on January 12,1970, she examined the white powder chemically and instrumentally and that in her opinion, “The white powder contained codeine.” The weight of the substance prior to the tests was 3.55 grams.

The defendant contends that the State’s evidence failed to establish that the substance allegedly sold contained a sufficient concentration of codeine to render it a proscribed narcotic drug rather than an exempt medicinal preparation. Therefore, he was not proven guilty beyond a reasonable doubt. Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 2—17(4), in effect at the time of defendant’s indictment and trial, provided that codeine was a narcotic drug.

Section 22 — 3, the statute of which defendant was found guilty of violating, provided: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug except as authorized in this Act * *

And section 22 — 12 provided:

“Except as otherwise in the Act specifically provided, this Act shall not apply to the following cases:
(1) Prescribing, administering, dispensing or selling at retail any medicinal preparation that contains in one fluid ounce, or if a solid or semi-solid preparation, in one avoirdupois ounce, ° *
(c) not more than one grain of codeine or any of its salts.”

In People v. Williams (1962), 23 Ill.2d 549,179 N.E.2d 639, 642-43, the Illinois Supreme Court had occasion to rule upon the respective burdens of proof regarding the medicinal preparation exemption of the predecessor to section 22 — 12 identical to section 22 — 12 in all pertinent respects. (The statute at issue was Ill. Rev. Stat. 1957, ch. 38, par. 192 — 28—12.) The court noted that another section of the statute provided that it shall not be necessary for the State to negative any exception, excuse, proviso or exemption, and that the burden of proof of such exception, etc. shall be upon the defendant. (Ill. Rev. Stat. 1957, ch. 38, par. 192 — 28—39; 23 Ill.2d 549, 179 N.E.2d 639, 643.) This provision existed at the time of defendant Rutili’s indictment and trial as section 22 — 44 of the 1969 Code.

The court reversed defendant Williams’ conviction where the substance had been shown to be a medicinal preparation produced by a reputable pharmaceutical company, holding that under these circumstances, a reasonable doubt had been created as to whether the substance was a proscribed narcotic drug as opposed to coming within the exemption, and from that point on the State had the burden’ of proving that the concentration of the narcotic, morphine sulphate, exceeded the limits of the statutory exemption. The court stated:

“While literal application of the last clause of the section [i.e., of par. 192.28 — 39, currently sec. 22 — 44 of the 1969 statutes, placing on the defendant the burden of bringing himself within the exemption] suggests that the burden was upon the defendant to prove, by chemical analysis, that the substance contained a concentration of the narcotic within the permissible limits, to so hold would lead to some rather startling results. Almost any medicine cabinet in the average American home is likely to house medicinal preparations containing some opium or morphine. It seems unlikely that the legislature would have intended that a citizen could be convicted upon mere proof of possession of such a preparation unless he assumed the burden of establishing by a chemical analysis that the preparation contained a concentration of narcotics within the permissible limitations. And, if this legislature did so intend, there would be obvious questions as to the validity of the statute." (23 Ill.2d 549, 554-555, 179 N.E.2d 639, 643.)

The court continued:

“It is a fundamental principle of Anglo-American law that in all criminal prosecutions the burden is upon the State to establish the guilt of the defendant beyond a reasonable doubt. To apply the statute in this situation as requiring the defendant to prove affirmatively beyond a reasonable doubt, or even by a preponderance of the evidence, that the medicinal preparation possessed by him contained no greater concentration of morphine than that permitted by law would run counter to this fundamenal principle. We believe that the statutory provision which states that the burden of proof of the exemption shall be upon the defendant must be applied to this situation in such a way that it does not conflict with the principle that places upon the State the burden of proving the defendant guilty beyond a reasonable doubt. Thus, if there is in this record evidence sufficient to raise a reasonable possibility that the defendant comes within the exemption thus creating a reasonable doubt of his guilt, the defendant has met the burden of proof imposed upon him by the statute * * *, [W]here, as here, the substance possessed by the defendant has been shown to be a medicinal preparation produced by a reputable pharmaceutical company, a reasonable doubt as to the defendant’s guilt has been created, and the conviction cannot be sustained in the absence of evidence proving that the concentration of narcotics in the preparation exceeded that permitted by the statute. The evidence was insufficient to prove the defendant guilty beyond a reasonable doubt.” (Emphasis added.) 23 Ill.2d 549, 555-556, 179 N.E.2d 639, 643.

The Illinois Appellate Court has recently construed the rule of the Williams case to require the State to prove that the substance was not an exempt one even where the reasonable possibility that it fell within the exemption arose from evidence adduced from a prosecution, rather than a defense witness. In People v. Woessner (1971), 132 Ill.App.2d 58, 268 N.E.2d 508, the court reversed where, although there was a stipulation to the chemist’s report that the substance was marijuana from which the resin had not been extracted, a State’s witness testified that he, defendant, and another had smoked some of the substance, and that all agreed “that the marijuana, if it were in fact marijuana, was not very good.” (132 Ill.App.2d 58, 268 N.E.2d 508, 509.) The court noted that the stipulated report “would be sufficient for conviction under the authorities if there were no evidence sufficient to raise a reasonable possibility that the substance tested came within the statutory exceptions” (132 Ill.App.2d 58, 268 N.E.2d 508, 510), and went on to hold:

“In our opinion, a reasonable possibility that the substance allegedly sold through defendant’s participation was not the proscribed narcotic, but rather, a harmless substance, was raised, by the testimony of the State’s witnesses who qualified their reference to the material by suggesting that it was of low quality ‘if it were in fact marijuana.’ The burden then * * * returned to the State and was not met by any evidence [that the substance was a proscribed narcotic not within the exceptions].” 132 Ill.App.2d 58, 268 N.E.2d 508, 510.

Here, since defendant was undisputedly a registered pharmacist with no previous criminal record and no history of having committed any past narcotic law violations, the record raised a reasonable possibility that the substance in question was a medicinal preparation falling within the exemption of section 22 — 12. Thus, it was incumbent on the State to prove that the substance contained more than the permitted concentration of codeine, that is, more than one grain of codeine per ounce of substance. The record merely showed that there was 3.55 grams of substance which “contained codeine,” with absolutely no evidence as to the percentage or concentration of codeine within the 3.55 grams of “substance.”

Under the law as set forth in the foregoing cases, the State failed to sustain its burden of proof, and defendant was not proven guilty by evidence, beyond a reasonable doubt.

Since the judgment of the trial court must be reversed because of the insufficiency of the evidence, it is unnecessary for us to consider the other contentions made by the defendant.

The judgment of the criminal court of Cook County is reversed.

Judgment reversed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. JUSTICE SULLIVAN

text:
    Ann Washington, Plaintiff-Appellant, v. Draper and Kramer, Incorporated et al., Defendants-Appellees—(Matt Jackson, Individually and d/b/a Calumet Decorating Service, Defendant.)
    (No. 56599;
    First District (5th Division)
    May 11, 1973.

      Rosenbaum and Rosenbaum, and Irvin Tischer, of Chicago, for appellant.
    Glazer and Cohan, of Chicago, for appellees Draper and Kramer, Inc. and 7000 South Shore Drive Hotel.
    Torshen, Cohen & Eiger, Ltd., and Garretson & Santora, both of Chicago, for appellees Allen Michaels and Mrs. Allen Michaels.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from orders granting two motions for summary judgment, one on behalf of defendants Draper and Kramer, Incorporated, and 7000 South Shore Drive Hotel, a corporation, and the other on behalf of defendants Allen Michaels and Mrs. Allen Michaels.

It appears that plaintiff had been in the employ of the defendants Michaels as a day worker or maid working three days per week in their rented apartment owned by the Hotel and managed by Draper and Kramer.

An accident occurring elsewhere in the building resulted in water damage to the Michaels’ apartment requiring repairs, including paper hanging. On the date of the alleged injury to plaintiff, an employee of the Calumet Decorating Service was hanging paper in the kitchen of the Michaels’ apartment. Plaintiff, in a statement included as an exhibit in the Michaels’ motion for summary judgment, stated that earlier she had helped tire paper hanger move his paper boards in the kitchen and when she returned to look for her misplaced dusting rag, she fell and was injured. She noticed a ball of paste on the floor and as she attempted to avoid the paste she stated that she must have stepped in some more of it causing her to fall. “* * * that’s what I stepped in, the paste from the paper hanger.” Plaintiff indicated in her statement that Mrs. Michaels was present at the time of her fall and that she was working overtime that day in order to finish her work in another room of the apartment. She apparently was not to do any work in the kitchen that day.

The Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57), provides that summary judgment shall be rendered “* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment or decree as a matter of law.” The purpose of the procedure is thus to render expeditious judgment on a question of law, but only after first deciding that no genuine issue as to any material fact exists between the parties. (Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill.App.2d 260, 265, 222 N.E.2d 168.) In making such determinations, a court should construe the pleadings and other documentation strictly against the moving party and liberally in favor of the opponent. Board of Education of District No. 68 v. Green Valley Builders, Inc. (1973), 10 Ill.App.3d 235, 293 N.E.2d 183.

We will first consider the contention of the Michaels which was raised in the trial court but has not been argued in their brief here: that plaintiff’s exclusive remedy is under the Workmen’s Compensation Act of Illinois. While we might deem this point to have been abandoned, we shall consider it, as it apparently was the sole basis for the trial court’s judgment with respect to these defendants.

Our examination of the Act indicates there are two controlling sections: sec. 138.2 which gives an employer the right to elect to come within the provisions and thereby relieve himself of any liability except as provided in the Act and sec. 138.3 which automatically applies the provisions of the Act to all employees engaged in certain listed enterprises and businesses which are declared to be extra hazardous. (Ill. Rev. Stat. 1971, ch. 48, pars. 138.2 and 138.3.) Where an employer does not elect under sec. 138.2 or is engaged in a business not declared to be extra hazardous in sec. 138.3, the Workmen’s Compensation Act does not apply. (Vol. 1, Angerstein, Illinois Workmens Compensation, Rev. Ed. 1952, sec. 41; 37 I.L.P., Workmen’s Compensation, 1958, sec. 25, p. 261.) In Glessner v. Industrial Com. (1971), 49 Ill.2d 558, 276 N.E.2d 313, it was held that a domestic or household servant was not an employee within the meaning of the Workmen’s Compensation Act where the employer did not elect to come under the Act and did not otherwise qualify under the Act. See also vol. 2, Wm. R. Schneider’s Workmen’s Compensation Law, 3d Ed. 1942, p. 626.

Nothing in the record here or in the briefs indicates any election by defendants Michaels to bring themselves under the Workmen’s Compensation Act nor is there any contention that they or the plaintiff were engaged in a business or enterprise declared by the Act to be extra hazardous.

Accordingly, we conclude there has been no showing that plaintiff’s remedy was under the Workmen’s Compensation Act and we hold that the circuit court was in error in granting summary judgment on this contention.

In their brief here the defendants Michaels have raised additional points not presented or argued in the circuit court. We will examine first the contention that summary judgment should be sustained on the theory that the plaintiff assumed the risks incidental to her employment.

In Coselman v. Schleifer (1968), 97 Ill.App.2d 123, 128, 239 N.E.2d 687, cited by them in support of this position, the court stated, “An employee assumes all of the usual and customary risks of his or her employment.” In that case, plaintiff was a domestic servant whose duties included going up and down a basement stairway where she fell. The court held that tire risks involved in the use of the stairway were normally incident to her employment.

This question of assumed risk was not raised or argued in the circuit court and, in apparent consequence, no affidavits or depositions were filed as to the usual and customary nature of her work. Therefore, from our examination of the record, we are unable to determine, as a matter of law, that the work of the paper hanger or the condition of the kitchen floor were normally incident to her employment or that the risks she encountered on entering the kitchen were usual and customary risks of her work. Accordingly, we believe that summary judgment cannot be sustained here on this contention.

We turn now to the remaining point raised in Michaels’ brief, namely, that summary judgment should be affirmed for the reason that the paper hanger was an independent contractor whose negligence, if any, was not imputable to them.

The plaintiff has not replied to this point, neither was it presented or argued in the lower court by these defendants.

We note that the amended complaint contains no allegation that any negligence of the decorator was imputed to the Michaels. The plaintiff alleges in Count III (the only count pertaining to them, Counts I and II relating only to the other defendants) that she was an invitee on their premises and they breached a duty to provide her with a reasonably safe place to work. The Michaels made a general denial thereto, although admitting plaintiff was their employee, and issues were thereby joined on the questions of whether the Michaels owed or breached any duty which was a proximate cause of plaintiff’s alleged injuries.

Summary judgment should not be entered when a genuine issue of material fact has been raised by the pleadings and other supporting papers filed in connection with the motion for summary judgment. In Ruby v. Wayman (1968), 99 Ill.App.2d 146, 149, 150, 240 N.E.2d 699, the court said:

“The principles applicable to a motion for summary judgment * s * are well defined. Summary judgment is a procedure to be encouraged [citation]; however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. [Citations.]”

The mere fact that an issue is raised in the pleadings does not of itself give rise to a right of trial. In Giampa v. Sunbeam Corp. (1966), 68 Ill.App.2d 425, 216 N.E.2d 233, it was held that the issue must be genuine and bona fide to prevent summary judgment. See also St. Louis Fire and Marine Insurance Co. v. Garnier (1960), 24 Ill.App.2d 408, 164 N,E.2d 625, where it was held that summary judgment is not prevented by issues raised in pleadings where other statutorily permissible documents shown no genuine dispute as to material facts. From our examination of the record, we believe there is a genuine dispute as to material facts concerning the issues raised by the alleged breach of duty to provide plaintiff with a reasonably safe place to work and the denial thereof by the Michaels.

Turning now to the contention of plaintiff that the court erred in sustaining the motion of the Hotel and Draper and Kramer for summary judgment, we note plaintiff contends (1) there was a question of fact as to which of the defendants hired the decorator who was the employer of the paper hanger and (2) there was a correlative factual question as to whether the paper hanger was an agent of one or more of these defendants.

We are unable to determine from the record, with any certainty, which of the defendants hired the decorator. We look upon this as a serious defect in the motions of all defendants for summary judgment, motions which, of course, must be strictly construed against the movants. The reason for this failing lies in the fact that without knowing the identity of the second party to the decorating contract, it becomes impossible to ascertain the facts agreed upon by those parties, with the resultant inability to determine the contractual rights of the parties, particularly in regard to the question of whether the decorator was an independent contractor whose negligence might not be imputed to the employer, or an agent whose negligence could be so imputed.

The Hotel and Draper and Kramer contend that the affidavit of the decorator’s employee, who actually did the work, and the depositions of the employees of Draper and Kramer, adequately sustain their contention that no one representing those defendants ever instructed, controlled or directed the paper hanger in the manner in which he was to perform his work. Thus, they say, regardless of who may have employed the decorator, he was, in fact and in law, an independent contractor. We cannot agree that these facts, though specifically undenied, go far enough to support this contention of these defendants. Although the question of whether an employer exercised or did not exercise control or direction should be considered, we believe that an important element in determining the existence of an independent contractor relationship lies in the employer’s right to control the manner in which the work is to be performed.

For authorities, we look no further than to the two cases relied on by these defendants in their brief. They are Ozark Minerals Co. v. Murphy (1943), 384 Ill. 94, 99, 51 N.E.2d 187, in which the court states:

“In determining whether a workman is an employee or an independent contractor, the principal consideration, under the general rule pertaining to an employer and employee, is the right to control the manner of doing the work. Not the actual exercise of the right # (Emphasis added.)

And Henry v. Industrial Com. (1952), 412 Ill. 279, 283, 106 N.E.2d 185, in which it was said:

“The right to control the manner of doing the work is probably the most important single consideration in determining whether the relationship is that of an employee or an independent contractor.”

See also Murrelle v. Industrial Com. (1943), 382 Ill. 128, 134, 46 N.E.2d 1007, where the court concluded on this question:

‘Whether or not that right was exercised is immaterial; the existence of the right of control, and not its exercise, is the determining factor in deciding whether deceased was an employee or an independent contractor.” (Emphasis added.)

Also Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615, 620, 71 N.E.2d 70:

“It is also the rule that the fact that the employment is for one job, which requires no supervision, is not conclusive that one is an independent contractor. The most important single factor is the right of the employer to control the manner of doing the work, though not the exercise of that right.”

We conclude that defendants’ motion for summary judgment is not supported by a sufficient showing on this material point from which it can properly be determined that there exists no genuine issue. In so saying, we by no means indicate that it may not be later supported or provable at trial, but the summary judgments as to all defendants are reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

ENGLISH and LORENZ, JJ., concur.


author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norman Schwartz, Defendant-Appellant.
    (No. 57421;
    First District (4th Division)
    May 9, 1973.
    Harry J. Busch, Sherman C. Magidson, and Marvin D. Michaels, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Patricia C. Bobb, and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Norman Schwartz, was indicted for the crime of murder of Dr. Enrique Fuentes, to which he pleaded not guilty. In a bench trial defendant was found guilty of voluntary manslaughter and sentenced to the penitentiary for a term of 4 to 14 years. On appeal defendant contends:

(1) That he was not proven guilty beyond a reasonable doubt;
(2) That the trial court improperly excluded testimony regarding the nature and contents of a telephone conversation defendant had with his wife shortly before the shooting;
(3) That the trial court erred in permitting certain rebuttal testimony introduced by the State; and
(4) That the trial court erred in permitting a police officer to describe certain items which had been taken from the defendant, but which were not introduced in evidence or preserved by the State.

The facts are as follows:

Dr. Fuentes and Dr. Schwartz first became acquainted in 1962, when Dr. Fuentes applied for a position in the medical partnership of Dr. Kenneth Gill and Dr. Schwartz. Dr. Fuentes was hired and continued his employment-association with the partnership until early 1970. At times during their relationship, Dr. Schwartz had occasion to criticize Dr. Fuentes’ medical procedures. Nevertheless, Dr. Fuentes continued to be employed by the partnership on a year-to-year contractual basis, beginning on the first of the year and ending on December 31st. In October, 1969, Dr. Fuentes engaged Dr. Schwartz in a conversation in which Dr. Fuentes demanded participation in the partnership. Dr. Schwartz responded that they would be willing to allow this participation if Dr. Fuentes made an investment in the partnership, as he had done. Dr. Fuentes replied that he did not want to invest any money, but that he wanted participation or he would leave. When Dr. Fuentes made this threat, Dr. Schwartz requested that he and Dr. Gill be given notice of exactly when Dr. Fuentes intended to leave. Dr. Fuentes said he had not completed his future plans as yet and he would let them know as soon as he did so. At this point, Dr. Schwartz told Dr. Fuentes that he could use the facilities of the medical center, that he would be paid for his services and that he expected to receive at least 30 days notice prior to Dr. Fuentes’ leaving. The conversation concluded with Dr. Fuentes promising to give Dr. Gill and Dr. Schwartz “plenty of notice.”

Dr. Schwartz did not receive any notice from Dr. Fuentes in the succeeding months. Dr. Fuentes left some time toward the beginning of November, but returned at the beginning of December. His contract was not renewed on December 31, but he remained in the office after the first of the year. He was paid for his services on a per-patient basis. Dr. Fuentes left again for approximately 2 weeks some time during January or February but returned before the end of February.

On Tuesday, March 3, Dr. Schwartz was advised for the first time by an employee of the medical center that Dr. Fuentes had left the office on Saturday, February 28, saying he was not returning. When Dr. Schwartz inquired concerning Dr. Fuentes’ whereabouts, he learned that Dr. Fuentes was out of town and was scheduled to work in the emergency room at St. Francis Hospital on April 2.

Dr. Schwartz went to the hospital on April 4 and saw Dr. Fuentes in a doctors’ room in the emergency area complex. Dr. Schwartz was dressed in his street clothing, and carried on his person, as he always did when dressed in his street clothing, his gun and knife. He gave Dr. Fuentes the original of a letter regarding the status of Dr. Fuentes’ professional insurance. He told Fuentes that he had brought the letter to him in person because of Fuentes’ habit of desregarding his mail and his concern that Fuentes knew that, according to the contents of the letter, the Gill-Schwartz partnership would no longer pay the premiums on Dr. Fuentes’ insurance.

During this same conversation, Dr. Schwartz and Fuentes discussed what would be done regarding the referral of Dr. Fuentes’ patients. The conversation, from Dr. Schwartz’ point of view, concluded on an apparently amicable basis. A hospital dinner was held on the evening of April 5. Dr. Schwartz and his wife were too tired to attend that dinner. Later the next day, however, while Dr. Schwartz was at the hospital, he learned from his wife that someone who had attended the dinner had heard Dr. Fuentes making derogatory remarks at the dinner concerning Dr. Schwartz. This knowledge prompted Dr. Schwartz to seek out Dr. Fuentes on the morning of April 6.

Dr. Schwartz arrived at St. Francis Hospital at approximately 7:15 A.M. He wore normal street clothes. He entered the hospital from the parking lot in the front, checked in at the doctors’ bulletin board, hung his outer coat on a coat rack, checked his mail box, took an elevator to the second floor, where he dropped off a throat culture in the pathology lab, and then went to the doctors’ locker room, which was also on the second floor. As he was scheduled to assist Dr. Santos in surgery at 8 A.M. that morning, Dr. Schwartz changed from his street clothing into a hospital surgical scrub suit in the locker room. Dr. Schwartz shared a locker with another doctor. He hung his sport jacket, his tie and his shirt on a hook in his half of the locker. He then removed his street shoes and placed them in the bottom of the locker. Prior to removing his trousers, which were also to be hung on the hook in the locker, he removed a gun and knife he carried in his trousers pocket and folded them in a towel which he kept in the locker. This was done so that the weight of these objects would not pull the trousers from the hook in the locker.

Dr. Schwartz had owned a pistol for a number of years prior to April 6. In approximately 1965, he had purchased a .25 caliber automatic. Because of house calls he had to make at night, in dark and desolate areas where there had been assaults, because he carried his medical bag containing narcotics with him during these hours, and because he also made late-hour emergency calls at the hospital or his office, where he had been fired upon one late evening in November or December, 1969, Dr. Schwartz habitually carried the pistol on his person for a number of years. Dr. Schwartz had also carried a pocket knife on his person for a number of years. He used this knife to open packages in his home or in the office. Some time in 1967 he lost this knife. Shortly thereafter, he found another knife in the hospital parking lot. The blade of this knife moved in and out of the handle by means of a sliding button. When Dr. Schwartz found the knife, he placed a piece of masking tape in front of the button, so that the knife would not open accidentally. The masking tape was on the knife on the morning of April 6 when Dr. Schwartz entered the hospital. He did not remove it at any time that morning. When the knife was turned over to Sgt. Kooyenga later that day, the masking tape was in place, preventing the knife from being opened.

After replacing the towel containing the knife and the gun in his locker on top of his street shoes, Dr. Schwartz hung his trousers on a hook in the locker, closed his locker and dressed in the usual surgical scrub outfit. The pants to that outfit, as with all surgical outfits, had no pockets. At that time he did not have any intention of seeing Dr. Fuentes. Upon learning that Dr. Santos, whom he was scheduled to assist in surgery, was delayed, Dr. Schwartz made a telephone call to Attorney Henry Gentile concerning matters unrelated to Dr. Fuentes. He made an appointment with Mr. Gentile for late that evening. Following the telephone call Dr. Schwartz started his hospital rounds. He interrupted these rounds at approximately 8:15 A.M., to attend surgery. He remained in surgery until approximately 11:15 A.M., when the surgery was almost concluded. Dr. Schwartz did not leave surgery at any time between 8:15 and 11:15 that morning.

Judith Radzik, a nurse on duty in tire emergency room on the morning of April 6, said that she saw Dr. Schwartz in the emergency room at approximately 9 A.M. Dr. Schwartz asked to see Dr. Fuentes and was told by either Mrs. Radzik or one of the other staff members present that Dr. Fuentes was not there at the time. Mrs. Radzik said she recalled that Dr. Schwartz had inquired about Dr. Fuentes at 9 o’clock because she had happened to look at the clock to note the time she gave medication or when she had received a doctor’s orders to administer medication, at about that time.

Edith Young, who was also on nursing duty in the emergency room that morning, said she saw Dr. Schwartz prior to 11 A.M., but could not recall the time. Miss Young said that Dr. Schwartz asked where Dr. Fuentes was, she told him Fuentes was not there, and Dr. Schwartz left the area. Miss Young also said she saw Dr. Schwartz on two other occasions later that morning.

After Dr. Schwartz left surgery at approximately 11:15 A.M., he went to the first floor and made a telephone call to his office. Following this call he went to a committee meeting on the first floor, where he remained for a short period of time, as he was in a hurry to get back to his office. After leaving the meeting he went to the emergency room to see and talk to Dr. Fuentes. He estimated he arrived there some time between 11 A.M. and 11:30 A.M. Upon arriving in the emergency room area, he asked one of the women there for Dr. Fuentes. Miss Young said that Dr. Schwartz left the emergency room. She estimated the time at between 10:30 and 11:30 A.M.

Dr. Schwartz also saw Dr. Mejicano, with whom Dr. Fuentes had started a private practice, in the emergency room at that time. Mejicano was in attendance in the emergency room from approximately 9:00 A.M. because of Dr. Fuentes’ appointment with a physical therapist. Dr. Mejicano testified that between 10:00 and 11:00 A.M. Dr. Schwartz came into the emergency room area and inquired for Dr. Fuentes. Dr. Mejicano told Dr. Schwartz that Fuentes had gone to therapy for one of his knees and that he would return at noontime. The two doctors then left the area together and walked to the elevators. They rode to the second, or surgical, floor where Dr. Schwartz exited. Dr. Mejicano continued to the sixth floor. On their way to, or on, the elevators, the two doctors exchanged trivial pleasantries. During their conversation, Dr. Schwartz asked Dr. Mejicano if he or Dr. Fuentes would take oyer the emergency room duty for him on his birthday later that month. Dr. Mejicano replied he would be glad to do so. Dr. Schwartz estimated it was approximately 11:30 when he left Dr. Mejicano and went to the recovery room to look in on his surgical patient. Following that, he made his rounds through the hospital. After visiting one patient of Dr. Gill (who was on vacation at the time), he met Dr. Thomsen.

Dr. Schwartz placed this meeting at sometime before noon. Dr. Thomsen said it occurred at approximately 11:00 A.M. The two men went into a treatment room where Dr. Schwartz sought Dr. Thomsens counsel on internal problems involving his medical partnership. According to Thomsen, Dr. Schwartz complained about being overworked due to Dr. Fuentes’ having left and Dr. Gill’s many vacations and inattention to the practice. He also ascribed some of his problems to Dr. Fuentes. He complained about receiving anonymous threatening telephone calls and being harassed. Dr. Schwartz told Dr. Thomsen he had an appointment later that evening with an attorney, and Dr. Thomsen advised him to discuss everything with the attorney and try to get some help. Dr. Schwartz also told Dr. Thomsen about his having heard that Dr. Fuentes had made derogatory remarks concerning him the previous evening, and about his having tried to see Fuentes about these remarks. Thomsen counseled Dr. Schwartz to speak to the attorney about these matters, as well as about the threatening telephone calls, the slashed tires, and the other harassing incidents which Dr. Schwartz described. Dr. Schwartz continued making his hospital rounds after he left Dr. Thomsen. He visited a patient in the old section of the hospital, made a telephone call to his office to inform them he was returning, walked back to the new section of the hospital, and stopped in the emergency room area to see Dr. Fuentes. Upon being told that Dr. Fuentes was not in the area, Dr. Schwartz returned to the second floor locker room to change from his surgical garb.

As Dr. Schwartz sat in front of his locker reaching for his street shoes, he was paged and the telephone rang simultaneously. He got up, walked several feet to the telephone, and answered the page. At that time, he had the towel containing his gun and knife, which he had unconsciously picked up in his hands. Immediately after answering his page, which had advised him that Dr. Fuentes was back in the emergency room, Dr. Schwartz walked to the elevators and went down to the emergency room area. As Dr. Schwartz entered the emergency room area he walked past a bank of treatment rooms to the nurses’ station, where he asked for Dr. Fuentes. Someone in the station responded he was in one of the treatment rooms. Mrs. Radzik said that she was on duty in the nurses’ station at this time. She was talking on the telephone when Dr. Schwartz inquired about Dr. Fuentes, and she pointed with her right hand, indicating that Fuentes was in the doctors’ lounge. Dr. Schwartz then walked toward the doctors’ lounge which was west of the nurses’ station. Dr. Schwartz denied that he walked toward the lounge. Instead, he said, he walked toward the treatment rooms which were in the opposite direction from the lounge.

Nurse Young was assisting Dr. Fuentes with a patient in treatment room No. 3 at this time. Dr. Schwartz entered the treatment room and told Dr. Fuentes he wanted to see him. Fuentes said he was busy and would see Dr. Schwartz when he was finished. Dr. Schwartz said he wanted to see him then, and Dr. Fuentes replied he would be able to see him when he was through. Dr. Schwartz again said he wanted to see Dr. Fuentes right then, and Fuentes said he would be with him. Dr. Schwartz then left the treatment room. After a few moments Dr. Schwartz again opened the door, stood in the doorway, and began counting. Miss Young described him as being “abrupt” and “demanding” at this time. Dr. Schwartz explained that when he is rushed and pushed for time, as he was on this occasion, he had the habit of counting aloud to himself.

As Dr. Fuentes joined Dr. Schwartz in the hallway outside the treatment room, he asked Dr. Schwartz why he wanted to see him. Dr. Schwartz explained that he had tried to see Dr. Fuentes earlier that morning to talk to him. When Dr. Fuentes asked about what, Dr. Schwartz replied that he had heard Dr. Fuentes had made some derogatory remarks about him at the hospital dinner the previous evening. Dr. Fuentes denied making any remarks. Dr. Schwartz explained that, when they had parted company the previous Saturday, it had been, from his point of view, as friends; but he had heard from a very reliable source that Dr. Fuentes had made derogatory remarks about him. When Dr. Schwartz asked to know what was happening and to settle the matter then, Dr. Fuentes directed him to follow him to where they could talk “privately.” Dr. Schwartz followed Dr. Fuentes to the doctors’ lounge.

Edith Young heard Dr. Fuentes’ and Dr. Schwartz’ voices after Dr. Fuentes left treatment room 3. Before the door to the room closed automatically, she saw Dr. Fuentes join Dr. Schwartz and the two men walked away abreast of one another. They were talking, loudly, but “not really loud.” She said the voices must have been above a conversational level or she would not have been able to hear them through the door of the treatment room which was closed. Neither voice, to her, was more distinct, and she could not distinguish what was said.

George Schuma, who had been in an accident earlier that morning with Pasquale Feretta and who was waiting to be treated in an examining room in the emergency area, heard a Spanish and an American sounding voice arguing from outside the room he was in. He could understand the American voice, but not the Spanish voice because it was deep, muffled and heavily accented. The first words he understood were the American voice saying, “We’re going to settle this now. I have talked to other doctors about this.” These words were louder than the other words Schuma had heard up to this point. After a “moment or so,” Schuma heard the Spanish voice say something, but he could not distinguish what was said. Other sounds followed after a pause of “about ten seconds or so.” Mr. Feretta, who was in the business office in the emergency area at the time, did not hear anything unusual, although later he heard loud, hostile voices arguing and, concurrently, “what appeared ° * like thumping on the walls, like something was being hit against the wall.”

Dr. Fuentes preceded Dr. Schwartz into the doctors’ lounge, but stepped behind Dr. Schwartz to close the door to the lounge after both men were inside. Dr. Schwartz again asked Dr. Fuentes what he had against him and told him he was seeing his attorney later that evening and would take up these matters with the attorney. Dr. Fuentes responded: “I’ll tell you what I have against you. You’re the bastard that prevented me from getting a partnership.” Dr. Schwartz replied that was ridiculous, and he explained that he had not prevented Fuentes from getting a partnership and that Fuentes could have had a partnership at any time merely by making the required investment. Dr. Fuentes said something unintelligible, and Dr. Schwartz added that he could only conclude that Dr. Fuentes was the person responsible for the harassing telephone calls and other incidents, referring to the slashing of his automobile tires. Dr. Fuentes said: “So what if I did make those remarks? So what if I did put somebody up? I’m going to show you how I’m going to settle you once and for all.” With that, Fuentes grabbed Dr. Schwartz’ wrist. As he did so, the towel, which had been under Dr. Schwartz’ left armpit fell to the floor. Dr. Schwartz tried to pull away from Dr. Fuentes, saying, “Are you crazy? Take your hands off me.” Dr. Schwartz twisted around and tried to get out of the room. Dr. Fuentes struck “a severe blow” to Dr. Schwartz’ face, knocking Dr. Schwartz’ head against the wall and causing Dr. Schwartz to become dizzy. Dr. Schwartz described what followed: “The next think I knew, he was all over me, he was punching me, clobbering me. My head was exploding. I screamed for help. I pleaded with him to leave me alone, to get away from me. But he kept pounding me back and forth. My head went back and forth against the wall.” George Schuma heard Dr. Schwartz say, “Take your hands off me. Stop this. Stop it now,” and scream for “Help” three or four times. Dr. Schwartz sounded like a man who was scared; his voice was shrill. Schuma believed he said, “Take your hands off me” three times. The screams for help and the shouts to “Stop it” were mixed in with scuffling, which sounded to Schuma like bodies bouncing off a wall. The screams, shouts and sounds of “bodies bouncing off the wall” prompted Schuma to go into the corridor to seek help. He came upon one, two or three nurses, whom he could not identify, and said: “There’s a fight going on next door. It sounds like somebody is killing each other. You better stop it.” The nurses told Schuma to go back into the examination room he had come from and “be quiet.” Schuma did as he was told and returned back down tire corridor to the room he had been in. Based on what he had heard coming from the doctors’ lounge and from the fact that it sounded to him “like one man was really getting beat up,” Schuma concluded that Dr. Fuentes was the aggressor.

Mrs. Radzik, who was standing with Miss Young in the hallway between the isolation and health service rooms, heard loud voices which she could not distinguish coming from the direction of the doctors’ lounge, fifteen to twenty feet away. Pasquale Feretta, who was sitting in the business office at this time heard “very loud” and “hostile” male voices arguing. Concurrently, he heard “thumping on the walls, like something was being hit against the wall.”

Dr. Schwartz testified further that as Dr. Fuentes beat his head against the wall, Dr. Fuentes forced him to the floor. Dr. Schwartz got up, and Fuentes continued the attack. He forced Dr. Schwartz to the floor again, and Dr. Schwartz fell on or near the gun which had been in the towel. He picked it up and told Dr. Fuentes to stay away from him, but Fuentes kept coming toward him. Dr. Schwartz again told Fuentes to stay away from him, and he fired the gun. Dr. Fuentes kept advancing and said: “I’m going to get you once and for all. I’m going to get both of you.” Dr. Schwartz kept firing.

As Dr. Schwartz entered the hallway he passed Mr. Feretta. Feretta had heard three or four shots in rapid succession “immediately following the argument and thumping on the wall.” Upon hearing these shots, Feretta put down a book he was reading, left the business office, and walked down the hallway to a pah of swinging doors that were closed at the time. A man was working on the doors. Feretta stood there for a minute or two, and Dr. Schwartz came through the doors and entered the hallway. As he came through the doors Dr. Schwartz appeared “dazed” and “groggy.” Immediately upon coming out of the room, Dr. Schwartz turned north and started to walk away from Feretta. He made a U-turn and walked, “like a man who was drunk,” back toward Feretta. He passed within six inches of Feretta. At that time Feretta observed Dr. Schwartz’ face; the right side was swollen and had black and blue marks on it; his mouth and nose were bleeding "very badly.” In addition Feretta noticed that the Doctor’s right arm was bruised and scratched. Finally, Feretta saw blood on the green surgical shirt Dr. Schwartz was wearing. As Dr. Schwartz continued down the corridor he passed what appeared to Feretta to be a security officer. Feretta heard the Doctor tell the security officer, “you better call the police.”

Nurse Radzik heard five or six shots coming from the direction of the doctors’ lounge shortly after she had heard the loud voices coming from that direction. The interval between the first and last shots was a matter of seconds; “[t]here were several fired in rapid succession, * * * a pause (of two, possibly three, seconds) and several more in rapid succession.” After she heard these shots Mrs. Radzik turned to a secretary and told her to call the security guard and the police. She then went to the doctors’ lounge where she saw Nurse Young and Dr. Dolehide working over Dr. Fuentes, who was lying face up diagonally to the south wall of the room.

The subsequent pathological examination revealed that Dr. Fuentes had been shot seven times. Mrs. Radzik immediately left the room to get emergency equipment and initiate an emergency call for other doctors. She returned to the lounge within a minute or two. On her way back she had a “fleeting glimpse” of Dr. Schwartz in the hallway leading from the main emergency area to the doctors’ lounge. She did not pay too much attention to him. The only thing unusual about his appearance she could recall was “a small amount” of blood, two or three drops under his nose. She could not recall if she saw blood anywhere alse on him, or whether he had any marks and bruises, but there might have been blood on his arms which she could not recall. She did see Dr. Schwartz holding a “bluish” colored turkish towel.

Nurse Young left Mrs. Radzik a minute or two after hearing the two doctors’ voices coming from the direction of the lounge, but remained in the corridor. She then heard approximately five shots coming from the direction of the lounge; there were two shots, a brief pause of a “moment or two,” and then more shots. Prior to the shots she did not hear anything else. After the shots, Miss Young heard the door to the lounge open. She walked towards the lounge and met Dr. Schwartz in the hall, coming from the lounge. He appeared “agitated,” and exclaimed: “Call the police, Dr. Fuentes attacked me and I shot him.”

Dr. Robert Dolehide was walking toward the doctors’ lounge when he heard loud talking or arguing. He opened the door to the lounge and heard a volley of shots. He immediately ran approximately fifteen yards around the comer where he waited until he heard another volley of shots. These “vollies” were described by the doctor as consisting of two or three repetitive, sharp blurts, although he could not ascertain the number of shots he heard each time. The doctor “estimated” or “guessed” that five to ten seconds elapsed between the first volley and the second.

After hearing this second volley, Dr. Dolehide ran back towards the doctors’ lounge, where he saw Dr. Schwartz emerging from the doorway. He said he noticed that Dr. Schwartz had “three or four drops of blood between [his] nose and [his] upper lip.” He noticed a towel in one of Dr. Schwartz’ hands and nothing unusual about the other hand.

Shortly after he had been taken into custody by Blue Island Police Sergeant Kooyenga, who had been called to the scene at 12:48 P.M. and had arrived within 12 minutes, Dr. Schwartz was examined by Dr. Thomsen of the St. Francis staff. This examination was prompted by Dr. Schwartz’ request and Sergeant Kooyenga’s suggestion that the doctor’s injuries be examined. When he first took Dr. Schwartz into custody at the hospital, Sergeant Kooyenga, himself, had noticed blood around the doctor’s mouth and nose. And, although he denied it at trial, Kooyenga had told the Coroner’s Inquest that the doctor was holding the towel in his hands to his face from time to time, and he thought the doctor was using the towel to “stem the flow of blood from his mouth or nose.” His initial view of the doctor caused the Sergeant to ask: “My God! What happened to you?” Dr. Schwartz replied that he wanted to tell the Sergeant “all about it,” and the two men went from the hallway to a room where Dr. Schwartz told Kooyenga that he and Dr. Fuentes had “a terrific struggle” and that he had to shoot Fuentes. Also, according to Sergeant Kooyenga, it was in that room that Dr. Schwartz told Sergeant Kooyenga that he had confronted Fuentes about the harassment, that he and Fuentes had had a “terrific struggle,” and that Fuentes had kicked him in the groin. Dr. Schwartz asked Kooyenga to make a note of this and the blood on his nose.

Sergeant Kooyenga initially said the towel, from which, according to Kooyenga’s testimony, the Doctor withdrew his pistol after he first told Kooyenga he had to shoot Dr. Fuentes as a result of their struggle, contained “a small amount of blood,” which Kooyenga defined as meaning less than being covered with blood. Called upon for a further description of the amount of blood on the towel, Kooyenga said there was more than two square inches of blood on the towel, but he could not tell whether there was more than three square inches on it. Kooyenga then took Dr. Schwartz from the room they were in to the area of the treatment rooms. As they walked, Dr. Schwartz said he wanted his injuries noted, and Kooyenga suggested he be examined for them. They went inside a treatment room. Once inside, Dr. Schwartz said, “You know, I also carry a knife.” Kooyenga had said nothing about a knife prior to that time. He asked Dr. Schwartz where he had the knife, and, according to Kooyenga’s testimony, Dr. Schwartz “reached in his right trouser pocket, 000 pulled a knife out, and handed it” to Kooyenga. The knife had a piece of masking tape over a button, which prevented the button from being pushed forward to release the blade. Kooyenga took the knife with him.

After recovering the knife, Kooyenga said he left Dr. Schwartz in the treatment room with the medical personnel and other policemen. Dr. Schwartz complained of injuries to his face, head, mouth and groin. Dr. Thomsen examined these areas. He noted evidence of bruises and contusions on Dr. Schwartz’ face and forehead. Dr. Schwartz also had a contusion or laceration of his mouth in which there was some bleeding. Following the examination, Dr. Thomsen asked Dr. Schwartz: “Norman, what have you done? Why didn’t you go home and wait to see your attorney tonight?” Dr. Thomsen could not recall if Dr. Schwartz answered him. In Dr. Thomsen’s opinion, Dr. Schwartz was in a state of “extreme agitation,” “agitation enough to indicate mental shock” and a recent beating. Sergeant ICooyenga also noticed, after Dr. Schwartz had been locked up at the Blue Island Police Station, a discolored lump or bruise alongside the doctor’s right eyebrow, and dried blood on his lips and around the bottom of his nose. Again the following morning, when the doctor was taken before a magistrate, Kooyenga noticed that his face was in the same condition as it was the day before.

In addition to tire injuries noted above, Dr. Schwartz sustained a number of contusions to different parts of his body and two fractured teeth.

Defendant’s first contention on appeal was that he was not proven guilty beyond a reasonable doubt. Section 9 — 2(b) of the Criminal Code provides:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(b).

Section 7 — 1 of the Criminal Code provides in part:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, * * Ill. Rev. Stat., 1971, ch. 38, par. 7 — 1.

In finding the defendant guilty of voluntary manslaughter, rather than guilty or not guilty or murder as charged in the indictment, the trial judge must have found that defendant believed that the killing of Dr. Fuentes would be justified or exonerated by the danger to his own person, but that this belief was unreasonable. Therefore, the issue is whether defendant’s belief that deadly force was necessary to protect himself from death or great bodily harm was reasonable. Whether such a belief is reasonable must necessarily depend upon the facts and circumstances surrounding its formulation.

The deceased was 5 feet 11 inches tall and weighed 173 pounds. Dr. Bono, a roommate of the deceased testified that Dr. Fuentes was in good physical condition and not crippled or deformed in any manner at the time in question. Dr. Schwartz described Dr. Fuentes as big, bony, muscular build, well developed, quite athletic, and this description was borne out by a photograph of Dr. Fuentes which was received into evidence.

Defendant’s version of the circumstances and events surrounding the shooting is substantially unimpaired by the witnesses’ testimony. The testimony of the two disinterested witnesses, Feretta and Schuma, substantially corroborated defendant’s testimony. In People v. Lockett, 85 Ill.App.2d 410, 229 N.E.2d 386, the court stated at page 414:

“For a killing to be justifiable it is not necessary that the danger be real. If the defender had reasonable ground to believe himself in danger of losing his life or of suffering great bodily harm he may protect himself even if he is mistaken and the danger only apparent. Whether the danger is actual or apparent does not depend upon the assaffant using a deadly weapon or having one in his possession. People v. Motuzas, 352 Ill. 340, 185 N.E. 614 (1933); People v. Organ, 345 Ill. 339, 178 N.E. 73 (1931).”

Under the circumstances involved in this case, we are not prepared to say that defendant’s belief that the use of deadly force to protect himself from death or great bodily harm was unreasonable. The proof was insufficient to support the conviction of voluntary manslaughter. In view of our conclusion, we need not reach the other issues raised on appeal.

For the reasons given, the judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter J. Council, Defendant-Appellant.
    (No. 56630;
    First District (5th Division)
    May 11, 1973.
    James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Frank Deboni, and Patrick McNally, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.