author: PRESIDING JUSTICE KARNS JUSTICE WELCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SHIRLEY HERNDON, a/k/a Shirley Jackson, Defendant-Appellee.
    Fifth District
    No. 80-584
    Opinion filed March 19, 1982.
    WELCH, J., specially concurring.

      John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John H. Reid and Susan A. Diehl, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

The State of Illinois appeals from an order of the circuit court of St. Clair County granting the motion of defendant, Shirley Herndon, dismissing the indictment and entering judgment of dismissal as provided by section 114 — 1(a)(2) of the Code of Criminal Procedure (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(2)). The sole issue raised on appeal is whether the felony prosecution against defendant was barred by the statute of limitations (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 5(b)).

In a complaint filed on April 25, 1980, it was charged that from June 1976 through June 1977, defendant committed the offense of theft over $150 by deception. The complaint was sworn to and signed by Larry Trent, agent of the Illinois Department of Law Enforcement and signed by an assistant State’s Attorney on a line designated “approved.”

On July 7, 1980, an indictment was returned by the St. Clair County grand jury charging defendant with the same offense that was charged in the complaint filed in April. On July 25,1980, defendant was arraigned on the indictment and a public defender was appointed. Defendant moved to dismiss the charge on the grounds that it appeared from the dates alleged in the indictment that the prosecution was not commenced within the three-year period fixed by the statute of limitations (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 5(b)). After a hearing, the trial court granted defendant’s motion and found that the prosecution was commenced by an indictment returned beyond the three-year period of limitations.

The State contends that the filing of the complaint on April 25,1980, commenced prosecution of the felony theft charge for purposes of the statute of limitations. In this regard, the State first argues that it is the participation of the State’s Attorney and not the form of the charging document that constitutes commencement of the prosecution, citing People v. Robins (1975), 33 Ill. App. 3d 634, 338 N.E.2d 222, People v. Kleiss (1980), 90 Ill. App. 3d 53, 412 N.E.2d 39, and People v. Woollums (1978), 63 Ill. App. 3d 602, 379 N.E.2d 1385. We have examined these cases and find that they do not support the State’s argument. The issue raised in Robins was whether a misdemeanor prosecution was properly commenced by complaint within the 18-month period of limitations. The critical distinction between Robins and the instant case is that here, the complaint charged the commission of a felony. In Kleiss, the issue was whether the defendant had waived objection to prosecution upon complaint rather than upon an information or indictment by his failure to file a timely pretrial motion. Here, waiver is not an issue because defendant filed a pretrial motion raising the objection. Woollums states that it is the primary responsibility of the State’s Attorney to file and prosecute a charge. This statement was made in connection with the court’s discussion of an evidentiary ruling made by the trial court and is unpersuasive for the proposition now urged by the State.

The State next argues that the statute of limitations was tolled by the filing of the complaint in April, citing section 3 — 7(c) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 7(c)) and, therefore, the indictment found on July 7, 1980, was within the limitations period. Section 3 — 7(c) provides for the tolling of the limitation statute while a prosecution is pending against a defendant for the same conduct. In order to apply this statutory provision to the present case, we first must accept the State’s contention that the complaint filed in April commenced prosecution of the felony charge. We are of the opinion that the State’s theory of when a felony prosecution is commenced is erroneous and that section 3 — 7(c) (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 7(c)) is irrelevant to the issue raised on appeal.

The term prosecution is defined in section 2 — 16 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 16) as follows:

“ ‘Prosecution’ means all legal proceedings by which a person’s liability for an offense is determined, commencing with the return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal.” (Emphasis added.)

Section 111 — 2(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 2(a)) provides, in pertinent part, the following:

“All prosecutions of felonies shall be by information or by indictment.6 6 6”

An information or indictment is required in order to prosecute an accused on a felony offense. Therefore, the date the indictment is found or the information is filed marks the commencement of the felony prosecution and stops the running of the statute of limitations.

Applying these principles to the instant case, the trial court correctly found that prosecution of the felony theft charge against defendant was barred by the statute of limitations. The complaint was filed on April 25, 1980. Because an information or indictment was necessary to charge defendant with the felony offense, the complaint did not commence the prosecution. On July 7, 1980, the grand jury returned a true bill which charged that defendant, from June 1976 through June 1977, committed the offense of felony theft. The indictment was found beyond the three-year period of limitations (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 5(b)). Therefore, prosecution of the offense was barred.

Our opinion here is supported by the supreme court’s decision in People v. Strait (1978), 72 Ill. 2d 503, 381 N.E.2d 692, which reaffirmed the established rule that if the indictment shows on its face that the alleged offense was committed outside the period of the statute, facts must be alleged to invoke an exception contained in the statute. No such facts were alleged here, nor do we believe any could be alleged to invoke any recognized exception.

Finally, the State argues that the complaint filed in April commenced prosecution of the felony theft charge because it was in substance an information as defined in section 102 — 12 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 102 — 12). We note that this argument was not presented to the trial court. The only basis argued against the defendant’s motion was that a complaint was sufficient to commence a felony prosecution. Therefore, the State has waived this theory now urged for the first time. (People v. Bullis (1980), 85 Ill. App. 3d 693, 407 N.E.2d 1100.) Furthermore, section 102 — 12 defines an information as a verified statement signed by a State’s Attorney. The complaint filed against defendant was signed and verified by an agent of the Illinois Department of Law Enforcement. It was “approved” by an assistant State’s Attorney. However, we know of no requirement that the prior approval of the State’s Attorney is required as a condition precedent to the filing of a complaint, and we would consider such approval surplusage.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

HARRISON, J., concurs.

JUSTICE WELCH,

specially concurring:

I subscribe to all of the majority opinion except for the statement, in "dicta, that “we know of no requirement that the prior approval of the State’s Attorney is required as a condition precedent to the filing of a complaint, and we would consider such approval surplusage.” (105 Ill. App. 3d 167, 170.) If, by this language, the majority intends to say that the charging instrument in this case was a complaint with a surplus signature by the assistant State’s Attorney rather than an improperly captioned information, then I must disagree.

An information is defined as “a verified written statement signed by a State’s Attorney, and presented to a court, which charges the commission of an offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 102 — 12.) Certainly the document contained a written statement verified by Agent Trent, and the signature of the assistant State’s Attorney meets the requirement that the instrument be signed by a State’s Attorney. (People v. White (1961), 21 Ill. 2d 373, 172 N.E.2d 794; People v. Rehberger (1979), 73 Ill. App. 3d 964, 392 N.E.2d 395.) And, because the body of a charging pleading, not the caption, determines the validity of that document (People v. Sirinsky (1970), 47 Ill. 2d 183, 265 N.E.2d 505), the designation of the instrument as a “criminal complaint” cannot alone convert an otherwise valid information into a complaint.

Nonetheless, the People argued in the trial court only that the charging instrument was a complaint and that a complaint is sufficient to commence a felony prosecution. They will not be heard to characterize this instrument as an information for the first time in this court, as the majority correctly holds.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    THE PEOPLE ex rel. WILLIAM J. SCOTT, Attorney General, Plaintiff-Appellant, v. J. H. LARANCE, Defendant-Appellee.
    Fifth District
    No. 80-433
    Opinion filed February 24, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellant.

      No brief filed for appellee.
   PER CURIAM:

On May 9, 1980, the Attorney General filed a complaint in the Circuit Court of Jackson County which alleged that defendant, J. H. Larance, committed certain acts which violated section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121/2, par. 262) and the Motor Vehicle Information and Cost Savings Act (15 U.S.C. §1981 etseq. (1976)). The acts complained of were that defendant sold his automobile and informed the purchaser that the odometer represented the actual mileage of the automobile. Actually, the automobile had been driven 100,000 more miles than was represented on the odometer.

After a trial before the Circuit Court of Jackson County sitting without a jury, the court found that the defendant knowingly and materially suppressed the truth on his vehicle when he traded it in as a low mileage vehicle and that defendant’s vehicle had 100,000 miles more than the amount he stated in his oral statements and on his odometer mileage statement. The court ruled that the Motor Vehicle Information and Cost Savings Act (15 U.S.C. §1981 et seq.) and the “Odometer Disclosure Requirements” (49 CFR 580.4) did not apply to this case as interstate commerce was not involved. The court further ruled that the Illinois Fraud and Deceptive Practices Act (Ill. Rev. Stat. 1977, ch. 121/2, par. 261 etseq.) did not apply to this case, because the Illinois acts deal with sales by a business person or merchant and defendant is not such a person.

The Attorney General has appealed to this court. Defendant has failed to file a brief in this court; however, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we have decided this appeal on its merits.

The basic Congressional intent of subchapter IV, odometer requirements of the Motor Vehicle Information and Cost Savings Act, is set forth in the first section of the subchapter, 15 U.S.C. §1981. (Delay v. Hearn Ford (D.S.C. 1974), 373 F. Supp. 791.) 15 U.S.C. §1981 provides:

“The Congress hereby finds that purchasers, when buying motor vehicles, rely heavily on the odometer reading as an index of the condition and value of such vehicle; that purchasers are entitled to rely on the odometer reading as an accurate reflection of the mileage actually traveled by the vehicle; that an accurate indication of the mileage traveled by a motor vehicle assists the purchaser in determining its safety and reliability; and that motor vehicles move in the current of interstate and foreign commerce or affect such commerce. It is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers.”

The law provides, in 15 U.S.C. §1988(b), that “It shall be a violation of this section for any transferor to violate any rules under this section or to knowingly give a false statement to a transferee in making any disclosure required by such rules.” Both the language of the statute and its history show that it has one purpose: to enable the purchaser of a motor vehicle to know how many miles the vehicle has traveled, as a guide to its safety, reliability and value. Every person purchasing an automobile must be given a written statement of the vehicle’s mileage if it is known. (Ryan v. Edwards (4th Cir. 1979), 592 F.2d 756.) The statute does not limit the application of the law to any transferor who places a motor vehicle in interstate commerce but refers to any transferor. In order to strengthen enforcement of the Act, 15 U.S.C. § 1990a provides for State enforcement in State courts of the provisions of subchapter IV by the chief law enforcement officer of the State. 15 U.S.C. §1991 provides that subchapter IV does not (1) annul or alter any State laws with respect to the disconnecting, altering or tampering with the intent to defraud, or (2) exempt any person subject to the provisions of this subchapter from complying with such laws, except to the extent that those laws are inconsistent with any provision of subchapter IV, and then only to the extent of the inconsistency. Nothing in the Act limits the applicability to interstate sales. The express Congressional intent combined with the broad definition of those liable leads us to the conclusion that subchapter IV of the Act applies to intrastate sales as well as interstate sales. Further, courts have not hesitated to exercise jurisdiction to consider the act where the sales were intrastate. (Birdwell v. Hartsville Motors, Inc. (M.D. Tenn. 1975), 404 F. Supp. 625; Rider Oldsmobile, Inc. v. Wright (M.D. Pa. 1976), 415 F. Supp. 258.) Therefore, the cause is remanded to the Circuit Court of Jackson County to determine the amount of damages under 15 U.S.C. §1989.

The Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121M, par. 261 et seq.) (the Act) provides, in part:

“An Act to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce and to give the Attorney General certain powers and duties for the enforcement thereof.
§1. * » »
(b) The term ‘merchandise’ includes any objects, wares, goods, commodities, intangibles, real estate situated outside the State of Illinois, or services;
(c) The term ‘person’ includes any natural person or his legal representative, partnership, corporation (domestic and foreign), company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof;
# # #
(e) The term ‘consumer’ means any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household;
(f) The term ‘trade’ and ‘commerce’ mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.
§2. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.”

The cardinal rule of all statutory construction is that the true intent and meaning of the legislature must be ascertained and given effect. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) The best indication of the intent of the legislature is the language the legislators voted to adopt. (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 374 N.E.2d 211.) The clear and unambiguous language of the statute expresses the legislative intent. (Caterpillar Tractor Co. v. Industrial Com. (1965), 33 Ill. 2d 78, 210 N.E.2d 215; In re Tingle (1977), 52 Ill. App. 3d 251, 367 N.E.2d 287.) Section 1(c) of the Act, which defines “person” does not limit that definition to merchant or businessmen, nor does section 2 of the Act limit unfair practices to those performed by businessmen and merchants. In 1973, the Act underwent numerous revisions. Prior to 1973, the preamble stated “An Act to protect consumers and borrowers * ° After the amendment, the preamble states “An Act to protect consumers and borrowers and businessmen * e In 1973, the terms “trade” and “commerce” were defined in section 1(f) of the Act. For the foregoing reasons, we conclude that defendant is not exempt from complying with the Act, and the cause is remanded to the Circuit Court of Jackson County for determination of damages under the Illinois Consumer Fraud Act.

Finding that oral argument would be of no assistance to the court in reaching its conclusion, we have taken the case under advisement without oral argument pursuant to Supreme Court Rule 352(a) (73 Ill. 2d R. 352(a)), and we reverse the judgment of the Circuit Court of Jackson County and remand for further proceeding consistent with this opinion.

Reversed and remanded with directions.

JONES and HARRISON, JJ., took no part in the consideration or decision of this case.


author: JUSTICE MILLS JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD HAMMOND, Defendant-Appellant.
    Fourth District
    Nos. 17018, 17254 cons.
    Opinion filed March 3, 1982.
    Supplemental opinion filed on denial of rehearing April 29,1982.

      Charles H. Delano, of Delano Law Offices, P. C., of Springfield (Richard P. Ryan, of counsel), for appellant.
    Anthony B. Cameron, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Conviction of conspiracy to keep a house of prostitution.

Affirmed on appeal.

Section 72 petition then filed.

Petition denied.

We affirm.

On direct appeal from Hammond’s convictions of pandering and conspiracy to keep a house of prostitution, we reversed defendant’s conviction for pandering but affirmed the judgment of conspiracy to keep a house of prostitution. (People v. Hammond (1980), 82 Ill. App. 3d 839, 403 N.E.2d 305.) After the mandate of this court was issued, defendant’s petitions for review by the Illinois and United States Supreme Courts were denied. Defendant subsequently filed an amended section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) for relief from the judgment and sentence entered on his conviction of conspiracy, and from the denial of this the defendant prosecutes the present appeal.

On appeal, defendant urges that the dismissal of his petition was an abuse of discretion and in support relies upon; (1) an affidavit of a recently located witness, Edward Prebe, whose testimony is alleged to be material to the guilt or innocence of defendant Hammond, and (2) the admission after trial by the former State’s Attorney for Adams County, Robert Bier, that he had been “stonewalling” the defendant during the original trial in the production of the State’s chief witness, Dorothy Roscetti.

Background

On July 7, 1976, an indictment was returned by the Adams County grand jury charging Hammond, his wife Elaine, and Lavada Woollums with the crime of pandering. This indictment was dismissed by the State on November 22, 1976, when the State’s chief witness, Dorothy Roscetti, a/k/a Tommi Roscetti, became unavailable for reasons which are not entirely clear from the record. Almost two years later, on June 7,1978, the Adams County grand jury again returned an indictment against the Hammonds and Woollums. The indictment was based on the same circumstances as the original indictment, but now Hammond was charged with two counts of conspiracy to keep a place of prostitution and pandering, as well as conspiring to pander. On June 9, 1978, defendant appeared, entered a plea of not guilty, and an order was entered requiring the State to furnish Hammond with discovery by August 18, 1978. The State’s Attorney of Adams County, Robert Bier, failed to comply with this direction on the date ordered but indicated at a subsequent hearing that discovery would be completed by August 29,1978.

On September 29, 1978, Mr. Bier filed a partial answer to Hammond’s discovery motion but numerous defense requests were excluded from the response. At a subsequent motion hearing, a further order was entered requiring the completion of discovery by October 10, 1978. The information sought by Hammond in his discovery motion was the disclosure of the address and current whereabouts of the chief witness, Roscetti. On October 10,1978, Mr. Bier filed a response to the most recent discovery order and listed as her address the address of her father, though Roscetti was not residing there and had not resided there for a period of four years. Again, a motion to dismiss was filed by Hammond. At the conclusion of the hearing on this motion, the prosecution was ordered to have Roscetti in court on November 20, 1978, and Hammond’s motion to dismiss was continued.

Not surprisingly, Roscetti was not produced by the prosecutor for the November 20 hearing. According to Mr. Bier, the reason for her nonappearance was the result of a misunderstanding regarding the payment of an airline ticket to enable her to appear. At the November 20 hearing the prosecutor admitted that he did have a phone number of Roscetti but refused to disclose it to Hammond. The prosecutor also readily admitted he knew where she was but suggested to the court that his reluctance in disclosing the address to Hammond was because of Roscetti’s fear Hammond would cause her harassment and embarrassment. Hammond argued that disclosure was necessary to enable a background investigation to be conducted to gather impeachment evidence for the trial. The court continued the hearing on Hammond’s motion to dismiss and ordered Mr. Bier to produce the chief witness in open court on November 27, 1978, and to supply Hammond, within 24 hours, with Roscetti’s physical location or address.

The 24-hour production order was not complied with, but on November 27 Roscetti did appear in court for the interview. During the examination of her by Hammond’s counsel, she indicated that she had no objections to disclosing her telephone number. At the hearing’s conclusion, the court ordered the prosecutor to disclose Roscetti’s phone number, information collected by the prosecutor regarding her prior statements, and her FBI identification record which was to be furnished by December 6, 1978. On December 13, 1978, Hammond filed a motion to dismiss for failure to disclose Roscetti’s phone number and other information. By December 22, the prosecutor had disclosed the prior statements and the FBI report to Hammond but continued to refuse to disclose the phone number, despite Roscetti’s willingness and the court’s discovery order. On the same date, another order was entered requiring the disclosure of the phone number by January 6, 1979. Again, Hammond’s motion to dismiss was denied. The prosecutor filed a motion for relief from the December 22, 1978, order to produce the number of Roscetti and yet a further order was entered on January 17, 1979, requiring the prosecutor to disclose the first three digits of Roscetti’s phone number and the city in which she was residing. Again, the order was not complied with.

From the time of the first indictment until the trial of Hammond on February 5, 1979, two defense witnesses had died. On February 7, 1979, the jury returned a verdict of guilty on the charge of conspiracy to keep a house of prostitution and pandering and Hammond received concurrent sentences of 2 years’ imprisonment. On appeal to this court, Hammond’s conviction of pandering was reversed due to failure of proof beyond a reasonable doubt, but the conspiracy conviction was affirmed. 82 Ill. App. 3d 839, 403 N.E.2d 305.

At trial, the prosecutor’s main witness was Dorothy Roscetti. She testified that in February 1976 she had met Lavada Woollums in Springfield, who arranged with Hammond for her to work as a prostitute in Quincy. She explained the operations at the Quincy Hotel and said that on two occasions when she escaped, she was beaten by Woollums upon her return. In short, the image created by her testimony was that she was directly accountable to Woollums and Hammond and could not leave without their permission. Roscetti’s testimony was contradicted on cross-examination by several inconsistent statements, and Roscetti’s stepbrother and her father both testified that she had a poor reputation for truthfulness. Also testifying for the State was Charles Bailey, an agent for the Illinois Bureau of Investigation. He stated that an informant had been paid to have intercourse with prostitutes at the new Virginia Hotel where Roscetti worked and that the informer had advised the officers of his intercourse with one of the women. Bailey and several officers went inside the hotel to find the prostitute. While inside, Hammond assisted the agents in looking for the woman but she could not be found. According to Bailey, Hammond stated that if the agents were going to arrest “his girl,” then the undercover agent should be arrested as well. On the basis of this testimony, Hammond was found guilty of pandering and conspiracy to keep a place of prostitution. Following the affirmance by this court of defendant’s conspiracy conviction, review in the Illinois and United States Supreme Court was sought and denied.

While waiting for word of the appealability of Hammond’s conviction, defense counsel arranged for an informal meeting with the prosecutor, Mr. Bier, and the trial judge, David Slocum. At this hearing, Judge Slocum later testified that Mr. Bier was asked whether he hadn’t been stalling the defense in producing the whereabouts of witness Roscetti. According to Judge Slocum, Mr. Bier admitted to Hammond’s counsel that he had been “stonewalling” during the discovery process. In the order dismissing Hammond’s present petition, the trial court made a finding that the former State’s Attorney, Mr. Bier, had intentionally withheld information from the defendant through the discovery process regarding the whereabouts and address of the prosecution witness. The State does not challenge this finding on appeal.

In short, as the basis for defendant’s section 72 petition for relief, he urges that the wilful refusal of the prosecutor to comply with the court’s discovery orders and the recent discovery of the location of Edward Prebe, a defense witness who was unavailable during the case in chief, mandates a new trial in this cause.

I

First we consider the basis for the granting of a section 72 petition for relief as a result of the discovery of the location of Edward Prebe.

In support of his argument that newly discovered evidence, taken in conjunction with the prejudice resulting from the loss of two witnesses who died before trial in this case, is sufficient to grant a new trial under section 72 of the Civil Practice Act, Hammond relies upon Thompson v. People (1951), 410 Ill. 256, 102 N.E.2d 315; People v. Hughes (1973), 11 Ill. App. 3d 224, 296 N.E.2d 643; and Jenkins v. Dearborn Securities Corp. (1976), 42 Ill. App. 3d 20, 355 N.E.2d 341. The State, taking the contrary position, relies upon People v. Colletti (1971), 48 Ill. 2d 135, 268 N.E.2d 397, and People v. Hammers (1977), 48 Ill. App. 3d 1023, 363 N.E.2d 914.

Initially, we note that there is some doubt as to whether Prebe was unknown to defendant at the time of trial or simply unavailable. Since section 72 relief is unavailable in either case, we will treat the testimony as the parties have — as newly discovered evidence.

A petition for relief by means of a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) is in the nature of a writ of error coram nobis and has as its principal purpose the bringing before a court of matters of fact not appearing in the record which if known to the court would have prevented the rendition of the judgment. (People v. Touhy (1947), 397 Ill. 19, 72 N.E.2d 827; Hammers.) While this is the avowed purpose of a section 72 petition, relief may not be granted on the basis of newly discovered evidence. (Colletti; People v. Griswold (1980), 89 Ill. App. 3d 661, 411 N.E.2d 1224; People v. Heidelberg (1975), 33 Ill. App. 3d 574, 338 N.E.2d 56; People v. Freeman (1974), 26 Ill. App. 3d 443, 316 N.E.2d 207; Hammers.) In Hammers, this court had occasion to consider this very issue, i.e., the use of newly discovered evidence in a section 72 petition. There, defendant had been convicted and sentenced for the murder of Rose Charapata. After trial, a person who had allegedly been with the defendant was alleged to have made statements to other persons that he and not the defendant had killed the victim. Defendant brought a section 72 petition on the basis of this newly discovered evidence but the petition was dismissed. There, this court, in reviewing the relevant authorities, stated:

“In Touhy, the supreme court ruled directly that neither under writ of error coram nobis nor its statutory substitute, section 72, may relief be granted for newly discovered evidence. After the 1947 Touhy ruling, the supreme court held in Ellman v. De Ruiter (1952), 412 Ill. 285, 106 N.E.2d 359, that when necessary to prevent injustice, courts should apply equitable principals [sic]. In 1955, section 72 was amended (1955 Ill. Laws 2238, §1) to codify Ellman v. De Ruiter and to provide that relief formerly available by the equitable remedy of bill of review became available under section 72. Relief for newly discovered evidence had been available pursuant to a bill of review (Waterman v. Hall (1921), 298 Ill. 75, 131 N.E. 145). In Williams v. People (1964), 31 Ill. 2d 516, 202 N.E.2d 468, and People v. Colletti (1971), 48 Ill. 2d 135, 268 N.E.2d 397; however, the supreme court stated that section 72 relief may not be granted on the grounds of newly discovered evidence.
In view of the precedent binding upon us, we conclude that we cannot consider the newly discovered evidence in support of the petition.” 48 Ill. App. 3d 1023, 1027-28, 363 N.E.2d 914, 917.

Defendant’s reliance upon Thompson is also misplaced. In Thompson, the defendant was convicted of keeping a house of ill repute and sought a writ of error coram nobis now governed by section 72 of the Civil Practice Act. The petition alleged that at trial the defendant had delivered subpoenas to the sheriff of Sangamon County to command the appearance of two defense witnesses. The subpoenas were returned “not found in Sangamon County” and the trial proceeded to judgment. The witnesses who were subpoenaed would have testified that defendant did not own the house of prostitution. The petition further alleged that the sheriff and State’s Attorney had threatened the witnesses to stay out of town until after trial and was supported by the affidavit of one of the witnesses. The supreme court found that the allegations of the petition, if true, justified the issuance of the writ. In our case, however, no suppression of evidence as in Thompson is involved with respect to witness Prebe. Prebe was out of State at the time of the trial working as an itinerant laborer on the Mississippi River and was not secreted through any action of the State’s Attorney. This finding was made by the trial court in its ruling on Hammond’s present petition and is reflected in the record before us. Hammond does not challenge that finding here.

In Hughes, the defendant was convicted of burglary and filed a post-trial motion contending that newly discovered evidence of an accomplice, which showed that he was not in the burglarized building at the time of the crime but had lost consciousness in the back seat of the car, warranted the granting of a new trial. The court agreed and remanded. Jenkins, like Hughes, also involved a ruling on a post-trial motion based on newly discovered evidence. These cases are simply inapplicable here. Both involve rulings on post-trial motions, where newly discovered evidence can form the basis for such relief in the discretion of the trial court. See People v. Estes (1976), 37 Ill. App. 3d 889, 346 N.E.2d 469; People v. Johnson (1978), 60 Ill. App. 3d 183, 376 N.E.2d 381.

In view of the precedent binding upon us, we reaffirm the position taken in Hammers that newly discovered evidence may not form the basis for the granting of a section 72 petition for relief.

II

We next consider Hammond’s contention that the deliberate and intentional violations of court discovery orders, coupled with the loss of three witnesses, is sufficient for the granting of his section 72 petition for relief.

During the delay in bringing defendant to trial from July 7, 1976, when the first indictment was returned, until February 5, 1979, two defense witnesses had died and the third left the State. On direct appeal, defendant raised these issues in the context of his contentions that his right to a speedy trial and to discovery had been denied. He now argues that because the prosecutor’s wilful discovery violations caused the loss of these three witnesses, a new trial should be granted. Hammond argues that Mr. Bier’s conduct was in blatant disregard to the prosecutor’s duty to insure a fair trial and indicates that his conviction was obtained by fraud and duress. Defendant relies upon Johnston v. People (1943), 383 Ill. 91, 48 N.E.2d 350, Thompson v. People (1951), 410 Ill. 256, 102 N.E.2d 315, and People v. Wilson (1962), 24 Ill. 2d 425, 182 N.E.2d 203. The State opposes this assignment of error and cites People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, to argue that points previously raised and cited on direct review cannot be raised in a section 72 petition.

At the outset, we note that the defendant does not contend, nor does the evidence indicate, that the prosecutor’s actions violated the rule of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. Hammond does not claim that Roscetti would have given exculpatory testimony. Rather, he argues that witness Roscetti’s whereabouts were concealed in an effort to delay his trial and to prejudice him by the loss of evidence.

In this respect we think defendant goes too far in his interpretation of the evidence. The findings below concern the prosecutor’s delay in producing Roscetti only and indicate nothing with respect to the reason for the 2M-year delay in bringing the case to trial. We can find in the record nothing to indicate that the prosecutor stalled in the hopes that defendant’s witnesses would die or leave the State and we feel that such an assertion is speculation on the part of defendant. So far as the record shows, the delay by the prosecutor was deliberate only in preventing Hammond from obtaining the current address and phone number of Roscetti, a witness whom defendant had previously interviewed.

In the direct appeal of Hammond’s conviction, one assignment of error was that defendant was denied due process because the prosecution had failed to fully comply with the discovery orders requesting Roscetti’s address. We said:

“Next, the defendant claims a denial of due process because the prosecution failed to fully and properly comply with discovery orders requesting Roscetti’s address. The record reveals some stalling by the State in this respect, but its task was hampered by Roscetti’s refusal to state where she lived.” (82 Ill. App. 3d 839, 844, 403 N.E.2d 305, 309.)

While the above language indicates we did address this issue, equally apparent is the fact that our previous consideration was devoid of any indication that the intentional nature of the violation was known. In Berland, the matters alleged in support of the section 72 petition were included in the defendant’s post-trial motion, were argued at that motion hearing, and were included in the record on appeal. The court thus held that defendant was not able to again seek review on matters which had already been raised and answered. In contradistinction, here the prosecutor’s intentional violation was not known at trial and was not known by this court at the time of our opinion on direct appeal. We thus conclude that defendant is not foreclosed from raising this issue in support of his section 72 petition.

Hammond interprets the State’s Attorney’s unfortunate admittance as showing that the underlying criminal trial was obtained by fraud and duress, bringing this case within the holdings oí Johnston, Thompson, and Wilson. In Johnston, the defendant had been convicted at a jury trial of receiving stolen property and sought a section 72 petition to set the conviction aside on the ground that the property had actually been in the possession of a codefendant. The evidence of the codefendant’s possession of the property established that part but not all of the property was in his possession, and the court, in ruling on defendant’s section 72 petition, held that even if the matters in the petition were true and known, it would not have prevented the conviction. Johnston is markedly different from the case at bar, and it is difficult to see how that case supports defendant’s argument here. Thompson involved a similar situation as in the case at bench in that both involved prosecutorial concealment of evidence. There the witnesses were never available, while here the discovery order violations concerned the prosecutor’s refusal to disclose the address and phone number of the State’s chief witness who was made available to defendant and who was present at trial.

In Wilson, defendant had been convicted of selling heroin and at trial raised the defense of entrapment. The prosecutor was shown to have acquiesced in sending one of its informers who was crucial to defendant’s claim of entrapment out of the State. The court reversed the conviction and remanded for a new trial holding that the deliberate conduct in sending the witness out of the State denied the defendant a fair trial. In the case before us, the prosecutor intentionally suppressed information regarding the location of the chief witness, but the witness was available to defendant for interview and he did receive some information relative to her background to enable him to present impeachment evidence at trial. We thus perceive these cases as involving a much greater threat of a conviction obtained by fraud and find them inapplicable here. Prosecutor Bier certainly did violate the numerous discovery orders, and we do not in any way countenance such conduct. The fact is, however, the witness was available prior to trial for interview, which significantly distinguishes Thompson and Wilson from the facts at bar.

The question this court must answer in ruling upon Hammond’s petition is whether, by some excusable mistake or ignorance on the part of the accused and without negligence on his part, he has been deprived of a defense which he could have used, at his. trial, and which, if known to the court, would have prevented his conviction. (See People v. Touhy (1947), 397 Ill. 19, 25, 72 N.E.2d 827, 831.) Had the intentional prosecutorial conduct been known at trial, the trial court could have dismissed the indictment. Pursuant to the sanctions available for refusal to comply with discovery orders, the trial court may enter such orders as it deems just under the circumstances, which includes dismissal. Ill. Rev. Stat. 1979, ch. 110A, par. 415(g).

The parties have not cited any cases which involve the question of whether relief pursuant to a section 72 petition is available for violation of discovery orders, discovered after direct appeal to have been intentional. Cases arising on direct appeal have noted that dismissal may be appropriate but have found that such sanction was not proper under the facts there presented. See People v. Anderson (1980), 80 Ill. App. 3d 1018, 400 N.E.2d 675 (abuse of discretion to dismiss misdemeanor charges for State’s violation of discovery orders); People v. Leannah (1979), 72 Ill. App. 3d 504, 391 N.E.2d 187 (abuse of discretion to dismiss charges for State’s violation of discovery orders by inadvertent erasure of video tape and delay in tendering to defendant police reports); and People v. Forsythe (1980), 84 Ill. App. 3d 643, 406 N.E.2d 58.

In Forsythe, the trial court dismissed an indictment for the prosecutor’s failure to disclose the existence of an informant, but on appeal the appellate court found this to be an abuse of discretion. The court in discussing the propriety of various discovery sanctions stated:

“[I]f the refusal to disclose the informant’s existence here was intentional, use of the trial court’s contempt power rather than a dismissal of the indictment is a more direct and effective way of regulating the conduct of trial attorneys in carrying out their discovery duties. [Citation.]” (84 Ill. App. 3d 643, 646, 406 N.E.2d 58, 61.)

This was the sanction recommended by the trial judge in the case at bar in its order dismissing Hammond’s amended section 72 petition. Thus, while defendant’s amended section 72 petition presented a defense, it would not, in line with the above authorities, have prevented his conviction. We likewise agree that the court’s contempt power rather than dismissal is the more appropriate sanction to be applied. While we in no way approve of the conduct of the former State’s Attorney of Adams County, we believe, as did the trial court, that use of the contempt power is more in line with the purpose of effectuating discovery and that dismissal would not have been the appropriate sanction.

Hammond’s petition, as such, presented no defense not known at the time of the trial which would have prevented the judgment from being entered. It was, therefore, properly denied.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE MILLS

delivered the supplemental opinion of the court:

Following the briefing and argument in this court, the Illinois Supreme Court handed down its opinion in Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273. Ostendorf has circumscribed the authorities we relied upon in holding that the allegations of the petition filed herein alleging the location of newly discovered evidence cannot form the basis of a section 72 petition for relief.

In Ostendorf, a section 72 petition was filed alleging the fraudulent concealment of evidence of design defects in a tractor model at issue in Ostendorfs products liability suit against International Harvester. After finding that the two-year statute of limitations for section 72 petitions (see Ill. Rev. Stat. 1979, ch. 110, par. 72(3)) was not applicable when evidence sought through discovery interrogatories had been fraudulently concealed by the defendant, the court held that such new evidence of a design defect could form the grounds for section 72 relief despite International Harvester’s contention that newly discovered evidence would not present a meritorious claim under that section. The court stated:

“International Harvester has argued vehemently in this court that newly discovered evidence can never be a ground for setting aside a judgment under section 72. It is true that language to this effect can be found in many of our cases. (People v. Colletti (1971), 48 Ill. 2d 135, 137; Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 574; People v. Touhy (1947), 397 Ill. 19, 25.) However, closer examination reveals that in these cases and indeed in all the cases we have found in which newly discovered evidence was held not to be a sufficient ground for relief under section 72, it was for one of two reasons: either the losing litigant, through the exercise of ordinary diligence, could have discovered and produced the evidence at trial; or the evidence was not of so material and controlling a nature that it probably could have changed the outcome of the trial. [Citations.]” Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 283.

We thus have supplemented this opinion to consider whether the newly discovered evidence, i.e., the location of Edward Prebe and his testimony, is sufficient to afford relief from the judgment of conviction.

For newly discovered evidence to be sufficient, this court has said that the evidence must: (1) be of such a nature that it would change the trial’s outcome, i.e., material; (2) have been discovered since the trial; and (3) be such that it could not have been discovered by due diligence. (People v. Estes (1976), 37 Ill. App. 3d 889, 346 N.E.2d 469.) We believe that petitioner has failed to set out facts sufficient to meet the above requirements for section 72 relief.

The newly discovered evidence of Edward Prebe — which was attached to the petition by means of an affidavit — related Prebe’s involvement with Tommi Roscetti, the State’s chief witness, and consisted of statements made to Prebe and his opinion of Roscetti’s relationship with defendant Hammond. These statements serve to impeach Roscetti’s testimony at trial that she feared Hammond and was directly accountable to him. None of the matters averred that Hammond was not operating a house of prostitution or were in any way relevant to Hammond’s guilt or innocence of the charges, except insofar as the evidence impeached the veracity of Roscetti. At the trial, however, Roscetti was effectively impeached by prior inconsistent statements on cross-examination and through the opinion testimony of her father and brother who stated that she had a poor reputation for truthfulness.

At the hearing on defendant’s petition, the trial court stated that even if Prebe had testified it would not have changed the judgment of the case. The court stated, “[a]s Mr. Delano [counsel for defendant] again points out that there was all kinds of evidence at the trial to attempt to impeach Ms. Roscetti, and this would have been one more attempt apparently. As a result, I don’t find that that is sufficient for the setting aside of the judgment.”

We concur in this conclusion and believe the court’s refusal to grant defendant’s petition was not an abuse of discretion. (Estes.) Prebe’s evidence was not of so material and controlling a nature that it would probably have altered the result. It was merely cumulative to the substantial impeachment evidence offered by the defendant’s counsel.

Accordingly, the decision as supplemented is affirmed and the defendant’s petition for rehearing is denied.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WRIGHT, Defendant-Appellant.
    Second District
    No. 80-697
    Opinion filed March 29, 1982.

      Allan J. Marco, of Marco and Mannina, of Downers Grove, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Larry Wechter, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, James Wright, appeals from a judgment finding him guilty of bribery (Ill. Rev. Stat. 1977, ch. 38, par. 33 — 1(d)) and official misconduct (Ill. Rev. Stat. 1977, ch. 38, par. 33 — 3(d)), and, for the offense of bribery, sentencing him to four years probation and imposing a $5,000 fine.

In February and March of 1979, the Secretary of State’s Office conducted an investigation of the Lombard driver’s license facility. As a part of the investigation a private investigator named DeArmas posed as an employer of illegal aliens, and contacted a man named Luis Rodriguez. DeArmas told Rodriguez that he had an illegal alien named Gonzales who needed a driver’s license. Rodriguez agreed to aid DeArmas. Early on the morning of March 29, 1979, DeArmas and Investigator Aguilera from the Secretary of State’s Office met with Rodriguez. Aguilera, who had obtained phony identification in the name of Gonzales and $128 in powdered money, was introduced to Rodriguez as Luis Gonzales, an illegal alien from Guatemala.

The group traveled to the Lombard facility. There Rodriguez introduced Aguilera to the defendant James Wright, a supervisor at the Lombard facility. After taking several tests, and attending several meetings and discussions with the defendant, Aguilera, still posing as an illegal alien, was given a driver’s license. Before leaving the facility and pursuant to directions given by Rodriguez, Aguilera gave the defendant $50 in marked bills. The defendant slipped the $50 in his pocket. Shortly thereafter, he was arrested, the money was recovered, and the defendant was charged with bribery and official misconduct.

The first trial against the defendant resulted in a mistrial. Prior to the commencement of the second trial, defendant filed a motion to dismiss the charges pursuant to section 114 — 1(a)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(2)) and section 3 — 4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(a)(3)). As a basis for the motion, the defendant contended that in the first trial, the prosecutor was guilty of overreaching by asking a witness a grossly inappropriate question, which provoked the mistrial.

Upon written motion of the defendant, section 114 — 1(a)(2) authorizes the dismissal of an indictment, information or complaint on the ground that the prosecution is barred by sections 3 — 3 through 3 — 8 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(2).) Section 3 — 4(a)(3) states as follows:

“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(3) Was terminated improperly after the jury was impaneled and sworn * * 111. Rev. Stat. 1979, ch. 38, par. 3 — 4(a) (3).

Under these provisions, the defendant’s motion should be granted only if the mistrial is improperly granted. Generally, if the defendant requests the mistrial and consents to the mistrial, he can hardly claim that the mistrial was improperly granted. (See People v. Cummings (1977), 47 Ill. App. 3d 578, 581.) Here, the defendant made the motion for the mistrial and consented to the granting of the motion. Such a motion is deemed to be a deliberate election on the defendant’s part to forgo his right to have his guilt or innocence determined before the first trier of fact. (United States v. Scott (1978), 437 U.S. 82, 93, 57 L. Ed. 2d 65, 76, 98 S. Ct. 2187, 2189.) If the defendant’s request for a mistrial is precipitated by prosecutorial error, retrial is permissible. (People v. Pendleton (1979), 75 Ill. App. 3d 580,593.) Because of the complexities and dynamics of the trial itself, some prosecutorial error will be inevitable; if, however, the mistrial is attributable to prosecutorial overreaching, retrial is forbidden. People v. Pendleton (1979), 75 Ill. App. 3d 580, 593.

In Pendleton, prosecutorial overreaching is defined as misconduct “which is specifically designed to provoke a mistrial in order to secure a second — and perhaps more favorable — opportunity to convict the accused [citations]; or # ” 0 which is motivated by bad faith or undertaken to harass or prejudice the accused [citations].” (75 Ill. App. 3d 580, 593.) A mistrial which is necessitated by prosecutorial overreaching or impropriety designed to avoid an acquittal may well bar reprosecution. People v. Handley (1972), 51 Ill. 2d 229, 235.

Here, the mistrial resulted from the testimony of a State’s witness, Aguilera. Previously, the trial court had ruled that any testimony regarding a bribe accepted by a road test examiner would not be admissible. During his testimony, Investigator Aguilera, nonetheless, mentioned recovering money from another Secretary of State employee. The trial court, being fully aware of all the circumstances, determined that the mistrial was not the result of the prosecutor asking: “Then what, if anything did you do?” but, rather, the result of the answer: “Well, in the meantime I left the room and recontacted DeArmas, and told him that we have to go outside and recover the money from the * * * other employee of the Secretary of State.” The court specifically noted that this witness had a tendency to volunteer answers and to go beyond the scope of the question. In the present case, the trial court correctly determined that the prosecutor was not guilty of overreaching and did not err in denying defendant’s motion to dismiss the charges.

The defendant also contends that the State failed to prove him guilty of either bribery or official misconduct beyond a reasonable doubt. Under section 33 — 1(d) of the Criminal Code of 1961, a person commits bribery when:

“He receives, retains or agrees to accept any property or personal advantage which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of any public officer, • * (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 1(d).)

Defendant asserts that proof of his acceptance of the money is insufficient to prove him guilty of bribery; the State must also prove that in exchange for the money, the defendant committed an illegal act. The language of the statute, however, does not require the performance of an illegal act. The statute requires only that the defendant received, retained or agreed to accept the money knowing that it was offered with the intent that it influence the defendant as a public officer in the performance of an official act. See People v. Herron (1979), 76 Ill. App. 3d 437.

The defendant asserts that because he accepted the money after the license issued, the money was not intended to influence the performance of his duties. According to Aguilera’s testimony, however, Rodriguez told Aguilera that upon the receipt of his license, Aguilera was to give Wright, the “main man,” $50. Although the money was not actually received by the defendant until after Aguilera had received his driver’s license, there is ample evidence in the record to support a finding that Aguilera gave the money to the defendant pursuant to a pre-arranged plan and that the defendant was well aware that the money was in payment for having influenced him in the performance of official acts.

The case cited by the defendant, People v. Jordan (1973), 15 Ill. App. 3d 672, is distinguishable from the case at bar. In that case, an ambulance was called to the scene of an accident. Upon reaching the scene, the driver of the ambulance approached an officer and “slipped” him a $10 bill. There was no evidence, however, that the officer in his official capacity had done anything to warrant the receipt of the money. There was no evidence that the officer summoned that particular ambulance, and most important there was no evidence that the officer accepted the money knowing that the driver tendered it to him with the intent to influence his performance of his duty. The appellate court held that the proof of the mere acceptance of the money was insufficient.

Here, there is adequate evidence that the defendant, in his official capacity, provided Aguilera with services which may have warranted receipt of the $50. It was established that March 29,1979, was a very busy day for the Lombard facility. However, even with approximately 1000 other applications being processed, the defendant, one of only three supervisors, found time to facilitate each step of Aguilera’s licensing process.

The usual procedure at the facility was first to present two pieces of identification to a clerk at the application counter. If the clerk had any questions about the pieces of identification, he would show them to one of the three supervisors. Here, that step was avoided. After Rodriguez met with Wright, he personally introduced Aguilera to the “main man,” Wright. Wright examined the manufactured identification and without any further questions or investigation approved them. If a supervisor approved of the identification, no further questions were asked and the application could be completed.

Wright further assured Aguilera that he would have a “nice” examiner give him his road test. Finally, Aguilera testified that Wright accepted the $50 and agreed to aid Aguilera’s friends in a similar manner.

The trial judge specifically found that the investigators, Aguilera and DeArmas, were unimpeached and their testimony was very convincing. He also found that the defendant’s testimony was not very credible. In a bench trial, the credibility of the witnesses and the weight to be given to their testimony is to be decided by the trial court, and its judgment should not be set aside unless the proof is so unsatisfactory as to cause a reasonable doubt of guilt to appear. (People v. Herron (1979), 76 Ill. App. 3d 437, 440.) The evidence here is not so unsatisfactory, rather it establishes the defendant’s guilt beyond a reasonable doubt of the offense of bribery.

Under section 33 — 3(d) of the Criminal Code of 1961, a public officer or employee commits official misconduct when, in his official capacity, he “[sjolicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law.” (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 3(d).) Under this provision, accepting an unauthorized reward for the performance of an act in his official capacity is official misconduct.

In this case, the defendant, Wright, as supervisor, should have been aware of an official regulation that prohibited the acceptance of a gratuity. He accepted and pocketed the unauthorized money offered by Aguilera. It can be inferred that the money was meant to be a reward for Wright’s personalized attention given to Aguilera during the testing procedure. There is no doubt that as Wright guided Aguilera through the testing procedure he was acting in his official capacity. The fact that the money was received after Wright had guided Aguilera through the licensing process appears to be irrelevant. (See People v. Bouse (1977), 46 Ill. App. 3d 465.) The trial court did not err in finding the defendant guilty of official misconduct.

Defendant next contends that the trial court erred in admitting the hearsay statements of Luis Rodriguez as declarations of a co-conspirator. Declaration of co-conspirators are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy or a joint venture between the declarant and the defendant, insofar as such declarations are made in furtherance of and during the pendency of the conspiracy. (People v. Goodman (1980), 81 Ill. 2d 278, 283.) In the present case, the defendant contends that there was insufficient independent evidence of a conspiracy between Rodriguez and Wright to justify admission of the statements.

In support of this contention the defendant cites People v. McChristian (1974), 18 Ill. App. 3d 87. Initially, it should be noted that McChristian wás affirmed in People v. Bailey (1975), 60 Ill. 2d 37. Secondly, McChristian involved the State’s failure to prove beyond a reasonable doubt that the defendant had committed conspiracy to commit murder. McChristian did not involve the establishment of a prima facie case of conspiracy in order to permit the admission into evidence of a declaration of a co-conspirator.

To establish such a prima facie case of conspiracy, there must be “sufficient evidence of an apparent concert of action” between Rodriguez and Wright. (People v. Jaffe (1978), 64 Ill. App. 3d 831, 835.) Here, it is unrebutted that Rodriguez was asked to facilitate an illegal alien named Gonzales in obtaining a driver’s license. Aguilera, posing as Gonzales, gave $20 to Rodriguez. Upon reaching the Lombard facility, Rodriguez went to the defendant’s office. Later, he introduced the defendant to Aguilera. The defendant okayed Aguilera’s identification before it was presented to an employee at the application counter. The defendant, a supervisor in a facility which handles approximately 1000 applications a day, took a step-by-step interest in Aguilera’s progress through the licensing procedure. The defendant accepted an unauthorized payment of $50 from Aguilera.

The State also introduced other independent evidence of a conspiracy. Wright assured Aguilera that he would get a “nice” examiner for the road test. Wright accepted Aguilera’s offer to be a go-between, like Rodriguez, and to bring in other Latino persons for similar treatment. There was sufficient independent evidence of an apparent concert of action to justify the admission of the declarations of Rodriguez. See People v. Jaffe (1978), 64 Ill. App. 3d 831; People v. Olmos (1979), 77 Ill. App. 3d 287.

Defendant also asserts that the State’s failure to provide defendant with certain discovery was contrary to due process of law. Prior to and during the trial, the defendant requested that the State produce the identification used by Aguilera, and some notes taken by an investigator named John Rotunno. Defendant was permitted to examine Rotunno in chambers with regard to the notes that he had taken during an interview with Rodriguez. Rotunno, who had appeared before the grand jury in the instant case, testified under oath that his testimony before the grand jury was the sum and substance of the notes he had taken. Mr. Rotunno also testified that he received several requests to look for the notes, and although he had looked for them on four or five occasions, he had not been able to find them.

The defendant also recalled DeArmas, who testified that the two pieces of identification used during the investigation had been returned to him. He stated that he had been asked to produce the pieces of identification but that he was unable to obtain the identification because, pursuant to the usual office practice, he had destroyed them. He testified that within a month after the investigation, he disposed of the cards probably by shredding them or ripping them. It was the general practice of his private agency to destroy manufactured identification so that it could not be abused. He testified that he had not been instructed by anyone either from the State’s Attorney’s office or from the Secretary of State’s office to destroy the pieces of identification.

Although the defendant contends that the State’s failure to produce these items was a denial of due process, he cites no law in support of his position. In People v. Walker (1974), 21 Ill. App. 3d 202, 205, cited by the State, it was stated that both Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and Supreme Court Rule 412(c) (73 Ill. 2d R. 412(c)) require the State to disclose any material within its possession which tends to negate the guilt of the accused. Here, the items were not in the State’s possession. The State attempted, but was unable, to obtain the requested items. The defendant has not cited any case or rule holding that the State’s inability to obtain evidence requested by the defendant denies the defendant his right to due process. This contention is without merit.

Finally, the defendant contends that in light of his poor physical health and his recent adjudication of bankruptcy, the $5,000 fine with a minimum of $1,000 payment due each year of probation is excessive, and “serves no purpose except to further demoralize this family.”

Under section 5 — 9—1(c)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 9—1(c)(1)), when determining the amount of a fine and the method of payment, the court shall consider “the financial resources and future ability of the offender to pay the fine.” At the sentencing hearing, the trial court indicated that he had read the presentence report, and had considered the defendant’s employment and financial situation when determining the amount of the fine.

The defendant has not made the presentence report a part of the record on appeal, and there is no indication in the record that the defendant is unable to be profitably employed and unable to pay the $1,000 a year in the future. There was no indication that his health affected his employment possibilities, nor is there any other evidence in the record on appeal to indicate that the defendant is unemployable.

In light of the seriousness of the charges, the granting of probation to the defendant, the defendant’s past experience and apparent employability, and the statutory provisions which allow for future modification of the fine, the imposition of a $5,000 fine was not an abuse of the trial court’s discretion.

The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P. J., and LINDBERG, J., concur.


text:
    ROBERT CATALANO, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY OF ILLINOIS et al., Defendants-Appellees.
    Second District
    No. 81-205
    Opinion filed March 29, 1982.

      Robert Ward, of Chicago, for appellant.
    Jeffrey J. Asperger, Richard A. Buchanan, and James T. Ferrini, all of Clausen, Miller, Gorman, Caffrey & Witous, of Chicago, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

On December 13,1979, Beth Jordan Catalano (wife) filed a six-count complaint in the Circuit Court of Cook County against Aetna Casualty & Surety Company, Dennis Vance and Thorsen Insurance Services. The complaint sought equitable relief to compel Aetna to repair structural damage to her home and sought a monetary award for damages to personal property contained therein, as well as for personal property stolen from her automobile when the automobile itself was stolen. This relief was sought under a homeowner’s insurance policy issued by Aetna to Beth Jordan Catalano covering the Catalano home, for which she held legal title. Additionally, the complaint sought a monetary award for damage to the automobile when it was stolen. The automobile was also owned by Beth Jordan Catalano, and it was insured by Aetna under a separate policy also issued to her. The other two counts set out tortious injuries allegedly sustained during adjustment of these losses.

On April 3, 1980, Robert Catalano (husband), plaintiff in the instant case, filed a three-count complaint in Du Page County Circuit Court against the same defendants. Count I of the instant complaint is virtually identical to count I in the Cook County complaint with the exception that the instant complaint seeks money damages while the Cook County complaint sought injunctive relief. Count III of the Du Page County complaint and count VI of the Cook County complaint are also virtually identical. Insofar as count II of the instant complaint sets out facts constituting Thorsen’s active involvement in an alleged Aetna-Vance-Thorsen conspiracy, the conspiracy allegations of the two complaints are somewhat different. Paragraphs 26-31 of count II of the Du Page County complaint, which appear to be culled almost verbatim from a broader count in the Cook County complaint, allege trespass and destruction of evidence by defendant Vance in regard to the theft of the wife’s automobile, and these allegations bear no apparent relationship to the Aetna-Vance-Thorsen conspiracy that is the subject of count II.

According to section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 1 et seq.), a defendant may file a motion for dismissal or for other appropriate relief on the grounds “[t]hat there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c).) Such a motion to dismiss was made and granted in the present case. In this appeal, plaintiff asserts inter alia that both the parties and the causes are different so that section 48(1) (c) does not apply and that, therefore, the trial court erred in ordering dismissal of the action with prejudice.

Plaintiff first argues on appeal that husband and wife are separate persons under the law (Ill. Rev. Stat. 1979, ch. 40, par. 1001 etseq.), so that suits by the husband in one county and the wife in another county are not brought by the same person. However, under section 48(1) (c), “same parties” means that litigants are substantially the same, not identical. (Baker v. Salomon (1975), 31 Ill. App. 3d 278, 282.) Even accepting the factual allegations of the complaint as true and drawing all inferences therefrom in the nonmovant plaintiff’s favor, it is clear that the husband alleges an interest in the same property and recovery under the same insurance contract as that alleged in the wife’s suit. Though the husband was not named as a party to the wife’s suit, it appears that his suit is grounded on allegations of property rights that establish a mutual relationship to the same property rights that are the subject of the co-pending litigation brought in his wife’s name and that he is thus in privity with the suit of his wife. (Smith v. Bishop (1962), 26 Ill. 2d 434, 438; Sweeting v. Campbell (1954), 2 Ill. 2d 491, 496; Houghton v. Novak (1973), 9 Ill. App. 3d 699, 701.) Therefore, it appears that there is sufficient substantial identity of the parties for purposes of meeting the requirements of section 48(1) (c).

Plaintiff next maintains on appeal that the causes are different. In support thereof, he argues that plaintiff’s suit alleges a conspiracy to defraud and out-of-pocket expenditures by the husband of $5,000, neither of which were alleged in the wife’s complaint. However, the allegations of conspiracy and request for money damages for out-of-pocket expenses in the instant complaint will not necessarily remove the two complaints from the ambit of section 48(1) (c) for failure to meet the “same cause” requirement of the statute. The statutory section refers to “the same cause,” not to the same “cause of action”; actions are “for the same cause” where relief is requested on substantially the same set of facts. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 57, cert. denied (1965), 381 U.S. 926, 14 L. Ed. 2d 684, 85 S. Ct. 1562.) The crucial inquiry is whether the two actions arise out of the same transaction or occurrence, not whether the legal theory, issues, burden of proof or relief sought materially differ between the two actions; even though the purpose of the two actions is not identical, section 48(1) (c) may be invoked where there is a substantial similarity of issues between them. (Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 867.) It is apparent, as plaintiff himself conceded in his answer to the motion to dismiss, that “the facts which gave rise to the original claim by Mrs. Catalano are the same in all lawsuits” so that the “same cause” requirement of section 48(1) (c) is also met in this case regardless of any difference in legal theories of recovery advanced.

Finally, plaintiff maintains on appeal that, even assuming arguendo that there were co-pending complaints between the same parties for the same cause, the statute does not mandate dismissal. He suggests that equity would require consolidation of the cases. A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 253, cited by plaintiff to support his position, does stand for the proposition that the circuit court possesses some degree of discretion in ruling upon a 48(1) (c) motion and that multiple actions in different jurisdictions, but arising out of the same operative facts, may be maintained where the circuit court, in a sound exercise of its discretion, determines that both actions should proceed.

Construing Staley, this court has recently stated that, in exercising its discretion, the trial court should seek to effectuate the purpose of the statute of avoiding duplicative litigation. (Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 869.) The trial judge in the instant case found that the situation appeared to be “multiple litigation, if one takes it as the substance rather than the shell.” Considering the motions and arguments and reviewing the complaints in the instant case, it appears that the trial court’s characterization was correct and that the trial court did not abuse its discretion in granting the relief sought under section 48(1) (c), dismissal of the action.

In his reply brief, plaintiff states that the trial court recognized that the “same party” requirement of section 48(1) (c) was not met, apparently citing a lack of a specific finding to that effect in the order. No contention of any such deficiency in the trial court order was raised prior to the reply brief. The appellate court need not consider contentions made for the first time in a reply brief. (Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App. 3d 956, 965.) Even assuming arguendo that the trial court’s findings were incomplete or erroneous, the real issue on appeal is whether the order was correct and not the reasoning of the trial court or the grounds for the order (Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 25), and a decree may be sustained upon any ground warranted by the record, irrespective of whether the particular reasons given by the trial judge or his specific findings are correct (Monarski v. Greb (1950), 407 Ill. 281, 291).

The record in this case clearly shows that the “same party” and “same cause” requirements of section 48(1)(c) were met. The trial judge accurately observed that this was a multiple litigation situation. The Civil Practice Act is to be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties (Ill. Rev. Stat. 1979, eh. 110, par. 4); the elimination of repetitious suits and the relief of both courts and litigants from the unnecessary burden of trying the same issue pending in another action are consistent with the spirit and purpose of the Act. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 59, cert. denied (1965), 381 U.S. 926, 14 L. Ed. 2d 684, 85 S. Ct. 1562.) The trial court properly dismissed this action on section 48(1) (c) grounds, since the substantive rights of the parties, which are the subject of the controversy, will be resolved in the Cook County suit and both the courts and the litigants will be spared the burden of trying these duplicitous actions.

For the reasons set forth above, the trial court properly dismissed this action. Having made this determination, we need not consider the other contentions raised by the plaintiff.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE NASH

text:
    JAMES E. RONAN et al., Plaintiffs-Appellees, v. KEN RITTMUELLER et al., Defendants-Appellants.
    Second District
    No. 80-945
    Opinion filed March 30, 1982.

      Theodore D. Voska, of Wheaton, and Mark Schuster and Daniel Weiler, both of Cromer, Abbott, Wittenstrom and Strom, of Elgin, for appellants.
    Phillip Solzun, of Palatine, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Defendants, Kenneth Ritmueller and Ralph Obenauf, appeal from a judgment of the circuit court of McHenry County, sitting without a jury, finding them liable to plaintiffs for $20,000 in actual and $20,000 in exemplary damages for fraudulent misrepresentations. Defendants essentially contend that plaintiffs failed to prove them guilty of fraud by clear and convincing evidence.

Although plaintiffs have not filed a brief in this court we consider the appeal under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 494; see also Roqueplot v. Roqueplot (1980), 88 Ill. App. 3d 59, 60, 410 N.E.2d 441, 442.

Plaintiffs’ complaint was brought in two counts. Count I was directed against the individual defendants and count II against defendant Kensu Enterprises, Inc., an Illinois corporation. A default judgment was entered against the corporation and damages by it assessed at $20,000 in favor of plaintiffs. The corporation has not appealed from that judgment.

Evidence was produced in trial that in 1976 plaintiffs owned a five-acre parcel of real estate in McHenry County upon which they wished to erect their residence. The Ronans were referred to Kensu Enterprises, Inc., as a reputable builder. Kensu was incorporated in 1974 for the purpose of the construction of homes, and its stock was closely held by defendant Rittmueller and his wife. On September 17,1976, plaintiffs met with defendant Obenauf, Kensu’s salesman, and Rittmueller, its president, at the corporate office in Woodstock. They brought with them a survey of their land and a house plan taken from a magazine and were advised by defendants that Kensu would have an architect prepare a preliminary plan from it. Defendants advised plaintiffs the residence they desired would cost $48,500. Plaintiffs responded they could not afford more than $47,000 and asked how much down payment would be required. Defendants responded that 10% of the total price would be adequate with the balance payable when the house was almost completed. Plaintiffs also met with defendants to view other homes constructed by Kensu near Elgin. On October 4, however, Mrs. Ronan called the Kensu offices and spoke to Obenauf advising him plaintiffs had decided to wait until spring to build the home.

On October 20 Obenauf called Mrs. Ronan and advised her that if plaintiffs wished to build for $47,000 they would have to do so now as the cost of the home would go up at least $3,000 in the spring. Mrs. Ronan testified Obenauf told her the contract would have to be made at once because of an impending price increase for lumber and building materials which would become effective on November 1, causing a $3,000 increase in the cost of the home. He also stated Kensu had employed an additional crew of carpenters and that construction could start immediately and be under roof by Christmas. She told him to prepare the building contract and that plaintiffs would discuss it and meet with defendants on October 29 at their office.

Mrs. Ronan testified that, based on these representations, plaintiffs decided to proceed with the building. They then secured a loan from their bank for $10,000 and met with defendants on October 29. A construction contract drawn by Rittmueller was tendered to plaintiffs which specified a down payment of $20,000 and for partial additional payments totaling $27,000 to be made during construction. Plaintiffs questioned the amount of the down payment and were advised by Obenauf and Rittmueller that it was required in order to purchase the necessary building materials before the November 1 price increase and store them until needed. Plaintiffs were again told that Kensu had employed another carpenter crew who would start at once, completing construction by Christmas, although the contract tendered to them by Rittmueller provided only for construction to commence by December 15,1976. The plaintiffs then entered into the contract on that date with Rittmueller signing on behalf of Kensu.

In trial, both defendants denied making the representations attributed to them by Mrs. Ronan. Obenauf initially could not recall the conversation but stated on cross-examination they “could be true.” He suggested it was possible he was referring to pulling one of the crews Kensu had working on Rittmueller’s personal residence the corporation was then building. Rittmueller testified he had not made the representations to plaintiffs and “doubted” whether Obenauf had done so. He stated plaintiffs offered the additional down payment of their own volition in order to secure a price guarantee of $47,000 and for the deletion of an escalator clause from the contract. Rittmueller agreed that no building materials were ever purchased for the construction of plaintiffs’ house.

On October 29, after signing the contract, plaintiffs returned to their bank and borrowed an additional $10,000 and delivered a check for $20,000 to Kensu’s office on October 30. At that time, Obenauf told Mr. Ronan that necessary building permits would be secured right away and percolation tests on their land completed in the following week. Obenauf delivered the check to Rittmueller who deposited it in Kensu’s account; it had apparently been overdrawn at that time as the balance after the $20,000 was deposited was $18,479.

No work or construction was ever undertaken by defendants on plaintiff’s property although weather conditions were favorable and defendants continually promised to start soon. On December 17 Mrs. Ronan attempted to telephone Rittmueller but his business phone had been disconnected. She subsequently did reach him and was advised he had business problems and couldn’t do anything on the house at that time. Mrs. Ronan requested return of the $20,000 deposit, and Rittmueller informed her he could not do so as it had been used in the operation of Kensu. He said he could possibly build her house in the spring, but did not do so.

The Ronans repaid their interim $20,000 loan by remortgaging their old home causing their monthly payments for principal and interest to increase from $142 to $260.40 for a period of 15 years.

In trial, George Cumpata, a certified public accountant, testified that Kensu had financial difficulties since its inception in 1974 and that cash flow problems in 1976 occurred because the company took on too much work. In October 1976 Rittmueller, on behalf of Kensu, had borrowed $50,000 to be repaid in 30 days in order to finance the company’s operation. At that time, Kensu was building a large house for the personal use of Rittmueller and his wife on a tract of land they jointly owned. Rittmueller testified that in the fall of 1976 he had intended to use the land and new house as collateral in order to increase the working capital of the corporation. He planned to borrow $180,000 so as to repay the $50,000 due to his bank in November, with the remaining $130,000 for working capital but he was not successful. The bank refused the new loan and demanded payment of the $50,000 when in mid-November it was learned that a number of mechanic’s liens had been filed against Rittmueller’s property: on September 27 for $5,289, on October 23 for $944, on November 10 for $5,474, on November 15 and 16 for $11,603 with six additional liens being filed between November 20 and December 9,1976. As a result of denial of the $180,000 loan Kensu ceased to function.

During October 1976, $68,175 was deposited in the corporate bank account as was $23,953 in November. These funds, which included the Ronan’s $20,000, were credited as accounts receivable paid upon the three houses Kensu was building as of October 4. Rittmueller testified that although $90,000 was deposited in the corporate account after October 1, neither he nor his wife received any funds from the corporation from 1974 through 1976 other than reimbursements for expenses or repayment of officer loans made to it. The money was expended on corporate overhead, materials, wages, machinery, attorney fees and antecedent debts. Kensu had 10 or 12 employees as of November 1,1976, and they were last paid on November 23. Rittmueller acknowledged that much of Kensu’s financial outlay for costs incurred during this period was a direct result of the house being built for his personal use by Kensu; the contract for that construction was signed by Rittmueller both as buyer-owner and as president-general contractor of Kensu. The plaintiffs’ $20,000 deposit could not be traced in Kensu’s expenditures as its accounting system failed to segregate funds and their application by job, although Kensu’s accountant testified that this was an acceptable practice for this type of business.

Rittmueller further testified he believed the corporation to be in sound financial condition until about the third week in November. He disclaimed any knowledge of unsatisfied judgments or recorded liens as of October 29 although when cross-examined as to his knowledge of the pending corporate insolvency he admitted he didn’t honestly know whether he knew or not, but that it was possible he did know as of that date. He acknowledged that no building permits were applied for or final construction plans obtained for plaintiffs’ residence.

Defendant Obenauf testified he had been a salaried salesman for Kensu and was not an officer or shareholder. He had been so employed for four months before the meetings with the plaintiffs and did not see the contract with them until after it had been drawn up. He denied making oral representations to plaintiffs although he stated he may have told them the house could be under roof by December 15, 1976. Obenauf denied having any knowledge of the disposition of plaintiffs’ deposit or any statement regarding the increased cost of materials or additional work crews.

For a misrepresentation to be the basis for a charge of fraud it must contain the following elements: (1) it must be a statement of material fact as opposed to opinion; (2) it must be untrue; (3) the party making the statement must know or believe it to be untrue or be aware he is ignorant as to its truth; (4) the person to whom the statement is made must believe and rely on it and have a right to do so; (5) it must have been made for the purpose of inducing the other party to act; and (6) reliance by the person to whom the statement is made must lead to his injury. (Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 1138, 409 N.E.2d 515, 519; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 48, 390 N.E.2d 393, 403.) Fraud is never presumed, but must be proved by clear and convincing evidence. Ray v. Winter (1977), 67 Ill. 2d 296, 304, 367 N.E.2d 678, 682; Allenworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1045, 389 N.E.2d 684, 687.

In Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 322-23, 214 N.E.2d 612, 615-16, appeal denied (1966), 33 Ill. 2d 627, the court noted:

“There is no general rule for determining what facts will constitute fraud; whether or not it is found depends upon the special facts of each particular case. [Citation.] Fraud includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether suppression of truth or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, or by word of mouth or by look and gesture. [Citation.] As a general rule a corporate officer or director is not liable for the fraud of other officers or agents merely because of his official character, but he is individually liable for fraudulent acts of his own or in which he participates. 19 Am Jur2d Corporations par 1384. The mere fact that a person is an officer or director does not per se render him liable for the fraud of the corporation or of other officers or directors. He is liable only if he with knowledge, or recklessly without it, participates or assists in the fraud.”

The trial court in the present case found that based upon the evidence of the financial difficulties of Kensu; Rittmueller’s intimate knowledge and control of the corporate finances; and, his participation in the preparation and execution of the contract with plaintiffs at a time when the corporation was in a very difficult cash situation, made it clear he directed and participated with Obenauf in the fraud against plaintiffs. The court also found that Obenauf did misrepresent the need and purpose of the $20,000 down payment required of plaintiffs; that such statements were material and untrue and made to induce plaintiffs to make a large down payment; that Obenauf knew them to be untrue; and that plaintiffs believed and relied upon the misrepresentations in entering into the contract.

We find the conclusions drawn by the trial court as to Rittmueller are supported by the evidence. The trial judge is in a superior position to evaluate that evidence and the credibility of the witnesses and his findings will not be disturbed unless they are against the manifest weight of the evidence. Rosenbaum v. Rosenbaum (1981), 94 Ill. App. 3d 352, 355, 418 N.E.2d 939, 941; Callahan v. Rickey (1981), 93 Ill. App. 3d 916, 919, 418 N.E.2d 167, 170

Rittmueller’s argument that the trial court’s finding that plaintiffs’ down payment was represented to be for the purchase of materials adds nothing to the fraud is without merit. It clearly was relevant both to the inducement and justifiable reliance of plaintiffs on the representations. (Adams Laboratories, Inc. v. Jacobs Engineering Co. (N.D. Ill. 1980), 486 F. Supp. 383, 386; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 196, 380 N.E.2d 1040, 1045.) He also asserts that it was not proved that the promise to buy and store materials on or before November 1, if made, was known or believed by him to be false. If there, in fact, was a price increase (no evidence was offered by any party), Rittmueller failed to take advantage of it and buy materials for plaintiffs’ house with their money as he had represented he would. If there was no price increase, fraud becomes even clearer. As the court stated in Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 50, 390 N.E.2d 393, 404-05, “[t]he absence of direct evidence on this point, however, is not necessarily fatal to a plaintiff’s case, since knowledge of the defendant may be proved by means of circumstantial evidence. [Citation.] Such circumstantial evidence may justify an inference of knowledge that may stand unless rebutted. [Citation], Such inferences are particularly apt where the matter in question is peculiarly within the range of facts known to the defendants. [Citation.]”

Rittmueller argues that plaintiffs have only shown a promise of some future act and, therefore, no actionable misrepresentation occurred. Illinois law denies recovery for fraud based on a false representation of intention or of future conduct except, however, where the false promise or representation of intention or of future conduct is the scheme or device to accomplish the fraud. In that case, equity will right the wrong by restoring the parties to the positions they occupied before the fraud was committed. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634, 641; Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 237, 392 N.E.2d 759, 763; Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 94, 379 N.E.2d 1307, 1316, appeal denied (1978), 71 Ill. 2d 621.) Even a false representation of intention or future conduct, if amounting to a matter of fact, has been held to support an action for fraud. (Carroll v. First National Rank (7th Cir. 1969), 413 F.2d 353, cert. denied (1970), 396 U.S. 1003, 24 L. Ed. 2d 494, 90 S. Ct. 552.) Rittmueller personally and through his agent, Obenauf, promised to purchase materials in advance of an alleged price increase, add a carpenter crew and build plaintiffs’ house at once, completing it by Christmas. None of these representations were carried out. The trial court could well find from the evidence that such representations, made without the intent or ability to perform while intending plaintiffs to rely upon them, demonstrated a scheme to defraud plaintiffs and were actionable. (See Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 408 N.E.2d 782.) A scheme to defraud may consist of suggestions and promises as to the future when not made in good faith but with deceptive intent. United States v. Herr (7th Cir. 1964), 338 F.2d 607, 610, cert. denied (1966), 382 U.S. 999, 15 L. Ed. 2d 487, 86 S. Ct. 563.

Rittmueller also argues that as Mrs. Ronan was a real estate salesperson for seven years she knew the significance of contracts and therefore could not justifiably rely on the representation that her house would be started at once and finished by Christmas as the “time of commencement” clause in the contract specified that work on the Ronan house “shall be commenced approximately December 15, 1976.” As the court noted in Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 52, 390 N.E.2d 393, 406, “it is well established that the terms of any written contract executed in conjunction with fraud are irrelevant to a cause of action grounded not in contract but in tort. [Citations.] Likewise, we see no particular evidentiary significance in plaintiffs’ having signed a contract disclaiming any additional representations, when they have produced evidence that such representations were in fact made to them.” The fact Mrs. Ronan sold real estate is of little significance. Defendant may not persuasively argue in these circumstances that his victim had no right to believe him. Reimer v. Leshtz (1980), 90 Ill. App. 3d 980, 984, 414 N.E.2d 114, 117.

Rittmueller finally contends that the trial court should have raised a presumption against plaintiffs that the testimony of plaintiff, James E. Ronan, who was not called as a witness, would have been adverse to their case. It has long been the law in Illinois that the presumption or inference against a party failing to produce proof apparently within his own power does not apply to the failure of a party to a civil suit to testify in his own behalf. (Village of Princeville v. Hitchcock (1902), 101 Ill. App. 588, 591-92.) There are other motives that may influence a party to forego becoming a witness in his own behalf than the consciousness that the facts within his knowledge would be damaging if disclosed and the presumption that testimony would have been prejudicial to the parties’ case arises only when that party has willfully withheld such evidence. Haynes v. Coca Cola Bottling Co. (1976), 39 Ill. App. 3d 39, 46, 350 N.E.2d 20, 26.

We conclude the evidence was sufficient to establish fraudulent misrepresentations by defendant Rittmueller to plaintiffs’ damage.

We reach a different conclusion in the case against defendant Obenauf. In our view there was a lack of evidence that he knew the representations attributed to him were false or had any knowledge of the financial condition of Kensu or Rittmueller. Obenauf had been so employed only four months as a salaried salesman. While it is well established that one who knowingly participates in a fraudulent act is guilty of fraud (Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 323, 214 N.E.2d 612, 616, appeal denied (1966), 33 Ill. 2d 627), plaintiffs have failed to provide proof this defendant had knowledge that the contract could not be performed.

Accordingly, the judgment of the circuit court of McHenry County is affirmed as to defendant Rittmueller and reversed as to defendant Obenauf.

Affirmed in part; reversed in part.

REINHARD and VAN DEUSEN, JJ., concur.