text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles R. Krueger, Defendant-Appellant.
    Gen. No. 51,992.
    First District, First Division.
    September 23, 1968.

      Manuel S. Hoffman, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was convicted of driving while under the influence of intoxicating liquor in violation of section 47 of the Uniform Act Regulating Traffic (Ill Rev Stats 1965, c 951/2, ¶ 144). He was fined $150 and costs. At the beginning of the trial and on motion of the State, a charge of failure to have a vehicle sticker was dismissed, and the jury found the defendant not guilty of the charge of failure to stay in lanes.

Defendant’s contentions on appeal include (1) that the complaint was defective in that it did not allege that the offense took place in Cook County; (2) numerous prejudicial trial errors; and (3) that he was not proved guilty beyond a reasonable doubt.

The court denied defendant’s pretrial motion to suppress the results of the breathalyzer test, physical performance tests and alcohol influence test, and any other evidence obtained as a result of an “illegal arrest.”

On February 11, 1966, at approximately 11:45 p. m., defendant was driving his automobile in the City of Chicago westbound on Lawrence Avenue in the right-hand lane. He was being followed in the left-hand lane by Chicago Police Officer William Sheldon. The officer testified that he observed defendant swerve suddenly from the right-hand lane into the lane in which the officer was proceeding, and after following defendant for two or three blocks the officer put on his Mars light and stopped the defendant, intending to ask him why he had suddenly swerved. When defendant stepped from his car, the officer smelled alcohol on his breath and noticed a swaying motion in his walk. He then placed defendant under arrest for driving while under the influence of liquor. Defendant was transported to the Chicago 20th District police station by squad car. At the station the defendant told him he had had three or four beers. The officer stated that the defendant’s eyes were watery and bloodshot, his face was flushed, his clothing was soiled and mussed. The officer described certain physical tests given defendant, the results of which indicated to him that the defendant was intoxicated.

Officer Sheldon further testified that he had occasion to observe two to three hundred persons who were under the influence of intoxicating liquor and, in his opinion, defendant was under the influence of intoxicating liquor and unfit to drive on the night in question. On cross-examination he stated that on February 11, 1966, he had been on the police force for approximately eleven months, during which time he had made ten to fifteen arrests for driving under the influence of alcoholic liquors.

At the police station the defendant was given a “breathalyzer” test by Police Officer Alfred Leisz. The officer testified that the test resulted in a reading of .230% of blood alcohol, which he recorded on the alcoholic influence report.

Considered first is defendant’s contention that the complaint was fatally defective because it shows that the offense took place upon a highway between 1500 and 1600 West Lawrence but failed to state the county in which the offense took place. We note that the caption of the complaint includes “1st Municipal District, Circuit Court of Cook County, Illinois,” and the body of the complaint states that “the offense occurred ‘upon a public highway of this State’ between ‘1300 and 1600 West Lawrence’ which is ‘situated within the corporate limits of the City of Chicago aforesaid.’ ” This same contention was recently found to be without' merit in People v. Williams, 37 Ill2d 521, 524, 229 NE2d 495 (1967), and that decision is controlling here.

Next considered is defendant’s contention that his motion to suppress the evidence was improperly denied because it was illegally acquired. Defendant argues that his arrest was made on mere suspicion and without probable cause. We believe that Officer Sheldon’s observance of defendant’s erratic driving, plus the odor of liquor, was reasonable ground to believe that defendant was driving under the influence of intoxicating liquor. We find that defendant’s arrest was lawful.

Defendant next contends that the evidence against him could not be used because it was acquired without proper warning or protection of his constitutional rights. Defendant cites Miranda v. Arizona, 384 US 436 (1966), where the court stated (p 479):

“But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

As to his custodial interrogation, the record does not show any warning to defendant by Officer Sheldon of his constitutional rights. However, defendant does not indicate what part of his interrogation he considers to be self-incriminating. With the exception of stating he had three or four beers, defendant’s answers appear to be nonincriminating. We find no prejudicial error here.

As to the physical tests made by Officer Sheldon, the pronouncements made in Schmerber v. California, 384 US 757 (1966), apply here. That case dealt with the taking of a blood sample from a drunk driving suspect over his objection and with the use of reasonable force. In Schmerber, the court stated (p 761) :

“We hold that privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. . . . The officer’s direction to the physician to administer the test over petitioner’s objection constituted compulsion for the purposes of the privilege. The critical question, then, is whether petitioner was thus compelled ‘to be a witness against himself.’ ”

And on page 764, the court stated:

“[B]oth federal and state courts have usually held that it [Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.”

We find no error in admitting the testimony of Officer Sheldon as to the sobriety tests made at the police station and the results thereof.

Next considered is defendant’s contention that the result of the “breathalyzer” test was improperly admitted into evidence. Officer Leisz, who administered the breathalyzer test to defendant at the police station, testified that he had been a police officer for eleven years, and that he had been with the “Evidence Technician Department” for a year and half. His duties included the giving of breathalyzer tests. He had taken a 44-hour course in the operation of the machine at the Chicago Police Academy. He had a certificate from the Indiana University as a certified breathalyzer officer. He had the machine with him when he testified, and he explained its use and stated that the reading of defendant’s test of .230 was a proper reading. He was not a chemist nor an engineer nor a physician.

He was cross-examined at length. He did not know the trade name of the breathalyzer that he was using. He did not know “the amount of alcohol in this man’s blood” except by reading the machine. Nor did he have any knowledge as to whether the chemicals used had been tested for their potency or whether the machine had been tested for accuracy.

The court, after observing that the officer was not a chemist and not qualified to answer questions concerning the chemical reaction taking place in the machine, permitted his testimony as to the breathalyzer reading of .230 to stand.

On this point, defendant’s authorities include Fortune v. State, 197 Tenn 691, 277 SW2d 381 (1955); State v. Minnix, 101 Ohio App 33, 137 NE2d 572 (1956) ; Hill v. State, 158 Tex Crim 313, 256 SW2d 93 (1953) ; and People v. Davidson, 5 Misc2d 699, 152 NYS2d 762 (1956). Also, “Defense of Drunk Driving Cases,” by Richard E. Erwin, 1st Edition (1963).

These earlier cases from jurisdictions other than Elinois, which dealt with breathalyzer evidence, required rather strict proof of the proper condition of the machine and the chemicals it employed. This seems to have been one aspect of the skepticism which surrounded the use of an unfamiliar and technical device. Representative of this attitude is State v. Baker, 56 Wash2d 846, 355 P2d 806 (1960), a negligent homicide case cited by the defendant. The opinion discusses four checks upon the accuracy of breathalyzer evidence: (1) that the machine was examined and found to be in proper working order when the test was made; (2) that chemicals used were of the proper kind and proportion; (3) that the subject had nothing in his mouth at the time of the test and did not eat or drink within fifteen minutes prior to the test; and (4) that the test was properly given by a qualified operator. The court stated (p 810) :

“The expert testimony introduced by the state in this case pertaining to the breathalyzer and its operation shows that unless the above four requirements are satisfied, the result of the test is wholly unreliable. We therefore hold that before the result of a breathalyzer test can be admitted into evidence, the state must produce prima facie evidence that each of the four requirements listed above have been complied with.”

In Illinois, section 47(b) of the Uniform Act Regulating Traffic (1965) states:

“[EJvidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily substance is admissible, and the result of any such analysis shall give rise to the following presumptions:
“(3) If there was 0.15 percent or more by weight of alcohol in the person’s blood, it shall be presumed that such person was under the influence of intoxicating liquor.”

Illinois cases have not laid down any specific foundation requirements for the admission in evidence of breathalyzer tests. The leading case on drunkometer or breathalyzer tests in Illinois is People v. Bobczyk, 343 Ill App 504, 99 NE2d 567 (1951). There the court held that the result of the drunkometer test was admissible in evidence and said (p 510) :

“Defendant argues that there is a lack of unanimity in the medical profession as to whether intoxication can be determined by breath. Even so we think this objection goes to the weight of the testimony and does not destroy its admissibility.”

As to the breathalyzer test, defendant further contends that where prima facie evidence of a defendant’s guilt is set out in a statute, the State must prove every element of the statutory requirements of the offense. Here the statute stated, “If there was 0.15 percent or more by weight of alcohol in the person’s blood, it shall be presumed that such person was under the influence of intoxicating liquor.” Defendant asserts that the statute specifically requires that the percentage of alcohol be by weight, and in this case there was no evidence indicating whether the measurement was in terms of weight or volume.

Officer Leisz testified that “Above the gauge on the face of the machine are written the words ‘per cent blood alcohol.’ Yes, when I say per cent blood alcohol, I am referring to the words that are written above the gauge.” Although the officer did not testify that the gauge reading of .230 was by weight of alcohol in the defendant’s blood, we believe, and in the absence of any evidence to the contrary it was a reasonable assumption by the trial court, that the words on the machine, “per cent blood alcohol,” were based on the statutory requirement of weight.

We agree with the State that the competency of Officer Leisz to testify was a question of fact for the trial judge and was a matter largely within his discretion. It is sufficient that the expert is familiar with the device and its operation, and the weight to be given to the question of the expert’s competency is for the trier of the fact. Any questions raised as to the proper functioning of the device are likewise to be resolved by the trier of the fact. (People v. Abdallah, 82 Ill App2d 312, 226 NE2d 408 (1967).) In this case the court permitted extensive cross-examination of Officer Leisz, both as to his chemical knowledge and the operation of the machine, and we think the record shows that Officer Leisz was sufficiently trained and skilled in the use of the breathalyzer. He had a practical knowledge of its operation sufficient to administer the test. The machine reading of .230 was not based upon any formula, chart calculation or translation made by the officer. He stated the machine was in proper working order, and the record shows no evidence to the contrary. We conclude the officer’s testimony was sufficient to come within the provisions of section 47 (b).

Having determined that the testimony as to the breathalyzer reading was properly admitted into evidence, we find an instruction on the statutory presumption of intoxication was proper here. People v. Schneider, 362 Ill 478, 485, 200 NE 321 (1936).

Next considered is defendant’s contention that he was not proved guilty beyond a reasonable doubt. The facts upon which Officer Sheldon based his opinion that the defendant was unfit to drive and was under the influence of liquor included the observation that “the defendant’s eyes were watery and bloodshot. His face was flushed.” While under cross-examination, Officer Sheldon stated, “From my observations of the defendant today, I would say his face is flushed or reddened. I would say that it is possible that his face today looks like it did on the night of February 11, 1966. His eyes today are bloodshot and similar to the appearance of his eyes on the night in question. ... I knew he was a painter and that he had worked that day. His clothes were not disarranged or disorderly; they were just mussed and soiled.” In our opinion, the observations of the arresting officer on which he based his opinion that defendant was under the influence of liquor were sufficient evidence on which the jury could find that the defendant was guilty of driving under the influence of liquor beyond a reasonable doubt. It was within the jury’s province to determine the credibility of the police officers and to accept what testimony they believed and reject what testimony they did not believe. Where the guilt or innocence of defendant depends upon the credibility of conflicting testimony, a reviewing court will not substitute its judgment for that of the jury. People v. Raddle, 39 Ill App2d 265, 188 NE2d 101 (1963).

As to trial errors, we agree with defendant that it was improper for the State’s Attorney to make inflammatory remarks and innuendoes in cross-examining the defendant, especially in those questions which were not followed by the introduction of evidence on those points. We also agree that it was improper for the State’s Attorney to express to the jury, in final argument, his own individual opinion of the guilt of the accused. However, the record shows that the trial court promptly sustained objections to the questioned remarks and conduct of the State’s Attorney. We agree that the redirect examination of a witness is limited to those new matters raised on cross-examination, and a review of substantially all the witnesses’ direct testimony is improper. (Schmitt v. Chicago Transit Authority, 34 Ill App2d 67, 73, 179 NE2d 838 (1962).) We have examined the testimony of the two police officers, and we find no abuse of discretion here.

Defendant complains that during the trial the court commented that the charge was not a crime but merely a misdemeanor, and the State referred to the traffic violation as “a quasi-criminal case.” Defendant argues that the charge was a crime, and the comments by the State’s Attorney and the court had a tendency to lead the jury to believe the charge of driving while under the influence of liquor was a mere offense which probably carried with it a modest fine upon conviction. We find no prejudice to defendant in this exchange of terms and are not persuaded that they had any effect on the jury’s verdict.

Defendant further states that the jury foreman brought with him into the jury room a volume of the Encyclopedia Brittaniea, from which he read portions to the other jurors on the topic of drunkenness and passed the book around for the other jurors to read. An affidavit to this effect was filed with defendant’s motion for a new trial.

We agree that it is error to permit a jury to take with them into the jury room, during deliberations, matter which was not admitted into evidence. However, as the State contends, “it has always been held that the verdict of jurors cannot be impeached even by their own affidavit or testimony.” People v. Stacey, 25 Ill2d 258, 270,184 NE2d 866 (1962).

Defendant also complains that he was prejudiced by a newspaper article which implied that juries were too soft on drunken drivers. The article, which appeared during defendant’s trial, was general in its nature and did not carry any reference to the instant defendant but to a class of traffic violators. Even if read by members of the jury, of which there is no showing, we are not persuaded that such newspaper columns are prejudicial per se to defendants who happened to be on trial for conduct which is the target of the article. (People v. Brinn, 32 Ill2d 232, 238, 204 NE2d 724 (1965).) In the absence of an affirmative showing here that defendant was prejudiced by the newspaper article, we find no ground for reversal on this point.

We conclude that defendant received a fair trial. The evidence justified the verdict and, as we find no reversible error, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    Nicholas M. Aiello and Evelyn Aiello, Plaintiffs and Counter-Defendants, v. Casimir L. Grace and Jean R. Grace, Defendants and Counter-Claimants, Appellants, Thomas J. Kilroy and Edwin J. Doody, Counter-Defendants, Lilyan Kilroy, Administrator of the Estate of Thomas J. Kilroy, Deceased, Counter-Defendant, Appellee.
    Gen. No. 51,637.
    First District, Second Division.
    September 24, 1968.
    Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Judgment affirmed.
    Raymond I. Suekoff, of Chicago (Stuart C. Katz and Allen Kanter, of counsel), for appellants.

      Charles Justin Little and Harold L. Craven, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action for possession and rent brought by Nicholas and Evelyn Aiello, the contract sellers of a residence in Chicago, against Casimir and Jean Grace, the contract purchasers. The Graces filed a counterclaim against the Aiellos, also sought damages against Edwin Doody, the real estate broker who negotiated the transaction and who drew the contract in question, and against Thomas Kilroy, a licensed attorney and the escrowee nominated in the contract. The Aiellos and Kilroy answered the counterclaim; Doody was served but defaulted.

The matter was referred to a Master in Chancery who, after hearing extensive evidence, found for the Aiellos and against the Graces on both the original complaint and the counterclaim; for the Graces and against Doody on the counterclaim; and for Kilroy and against the Graces on the counterclaim. The Graces and Kilroy filed objections to the Master’s report, which were allowed to stand as exceptions to the report. The trial court thereafter overruled the exceptions and entered a decree in conformity with the findings and recommendations of the Master. This appeal is taken from that part of the decree finding the issues raised by the counterclaim and Kilroy’s answer thereto in favor of Kilroy and against the Graces.

Kilroy and Doody had known each other for several years prior to 1961, Kilroy having represented Doody in a criminal matter during that period. It appears that Doody had several personal judgments against him and that his bank account was constantly being garnisheed, as a result of which he was hampered in the operation of his real estate broker’s business. Prior to August 24, 1961, Doody requested Kilroy to open a checking account in Kilroy’s name for Doody’s use; Kilroy opened such an account, hereinafter referred to as special account #1. Doody made deposits to the account from time to time and when he desired a disbursement from the account, he would inform Kilroy as to the name of the payee and the amount of the check to be issued, whereupon Kilroy would draw the desired check. Kilroy testified that although he was aware that deposits were being made to the account from time to time, he did not know the precise amounts of those deposits at any given time nor what the deposits represented. During the period the special account was open, the total amount issued by Kilroy for the accommodation of Doody was slightly under $28,000.

Some time after special account #1 was opened, Kilroy’s accountant informed him that difficulties had arisen with respect to that account; the accountant advised Kilroy to close that account and to open a new account with the balance withdrawn from special account #1. In the latter part of September 1961, Kilroy closed special account #1 and opened special account #2, with the balance therefrom, at the same bank, the new account again to be employed for the benefit of Doody. There was further evidence that during this entire period Kilroy maintained a personal checking account at the same bank in which Doody occasionally inadvertently made deposits; Kilroy testified that due to this mistake he wrote several checks for Doody from the personal account during August and September 1961. There was evidence that Kilroy’s wife reconciled the personal account, while his accountant reconciled the special account. It also appears that Kilroy’s name, as attorney, appeared on the door to Doody’s office; Kilroy stated that it was placed there without his consent or knowledge and that he requested Doody to remove it, and his testimony is uncontradicted that he received no law practice from Doody’s real estate operation.

Prior to August 24, 1961, the Aiellos retained Doody as real estate broker to sell their residence in Chicago. On August 24, Doody, acting as Aiellos’ broker, contacted the Graces with regard to the purchase of the Aiello residence for $28,000 and secured their signatures on the contract. Simultaneously with the signing of the contract, the Graces drew a check for the $2,000 earnest money deposit required by the contract, payable to Kilroy, the escrowee named in the contract, and delivered the check to Doody. Later that day the Graces received a telephone call from Doody to the effect that the Aiellos required an additional deposit of $13,000 as earnest money to secure the deal and that said additional amount would have to be deposited with Kilroy. The following day the Graces delivered to Doody another check payable to Kilroy in the amount of $13,000. On September 21, 1961, pursuant to a later request by Doody, the Graces delivered to him two additional checks in the amounts of $4,874.18 and $4,700, payable to Kilroy, and the added sum of $300 in cash.

The Aiellos testified that they did not authorize Doody to obtain any funds from the Graces other than the $2,000 earnest money deposit as provided in the contract. It appears that the contract signed by both the Aiellos and the Graces did not contain a provision with regard to an additional earnest money deposit of $13,000, whereas the contract received in evidence, being apparently the original contract and bearing the signature of the Aiellos and the Graces, contains such a clause. It also appears that all four checks issued by the Graces which were made payable to Kilroy and delivered to Doody had been endorsed and cashed, three of which were deposited into special account #1 and the fourth deposited in an account standing in the name of Doody’s wife.

On Friday, October 6, 1961, the Aiellos and the Graces met at the lending institution where the Graces had previously arranged to secure the balance of the purchase price for the building, in anticipation of closing the deal. Doody appeared and informed those present that Kilroy was out of town and that the payout would have to be postponed. The following day the Aiellos surrendered possession of the premises to the Graces.

Doody subsequently delivered check #110, drawn on special account #2 and bearing Kilroy’s signature as drawer, to the lending institution in the amount of $20,486.59, apparently representing the amount necessary to finalize the deal. Payment on the check was thereafter stopped by Doody and the account was later frozen by Kilroy. The lending institution returned all the papers to the respective parties and the closing did not take place. Although Doody returned several thousand dollars to the Graces, the full amount paid to him was not returned; Doody was indicted and pleaded guilty to the crime of obtaining money by means of a confidence game, for which he was sentenced to the penitentiary.

According to Kilroy’s testimony, Doody telephoned him on Friday, October 6 or 13, 1961, and requested Kilroy to sign two checks in blank, promising that he would see Kilroy in a short while with an explanation. Kilroy signed two blank checks, among which was check #110, and when Doody later failed to appear, Kilroy left town, leaving the signed checks behind. It was stipulated between the parties that if called as a witness, Kilroy’s wife would testify that Doody came to the Kilroy residence on the first or second Friday in October and by ruse, obtained the special account #2 checkbook from Mrs. Kilroy, without knowldege on her part that it contained the two signed blank checks. Check #110 was later completed by Doody and was presented to the lending institution by him. Kilroy testified that he did not learn of check #110 until several days thereafter, when he froze the account.

The Master found, inter alia, that Doody added language to the contract signed by the Graces and the Aiellos, requiring the Graces to deposit the additional sum of $13,000 with Kilroy; that the Graces gave Doody $15,000 due to the altered contract, and the additional sum of $9,874.18 because they trusted him; that Kilroy had no interest in Doody’s real estate brokerage business ; that Kilroy knew only that Doody was engaged in the real estate brokerage business and knew that part of the funds in the accommodation accounts was for use in that business; that, although named in the AielloGrace contract as escrowee, Kilroy never agreed to act in such capacity; that Kilroy’s signatures on all four checks issued by the Graces, payable to Kilroy and delivered to Doody, were forgeries; that check #110 presented to the lending institution was obtained by Doody by trickery from Kilroy’s wife and was completed by Doody and presented by him to the lending institution without Kilroy’s knowledge or consent; and that the Graces parted with no funds nor in any way altered their position in reliance upon the issuance of check #110.

Appellants do not question the findings of fact made by the trial court, but it is their position that Kilroy must be held accountable for the loss which they suffered inasmuch as Kilroy innocently afforded Doody the opportunity to convert the monies paid by them to Doody through the creation of the special account for Doody’s accommodation. We disagree.

There can be no argument with the well established principle advanced by appellants that where one of two innocent parties furnishes a third-party malefactor with the means of perpetrating a wrong, as between those two parties he is to be held accountable for, and must bear the loss occasioned by the wrong although he himself was not a party to the wrong. Westlake Finance Co. v. Oak Park Motors, Inc., 19 Ill2d 66, 72, 166 NE2d 23. This principle, however, has no application to the situation at bar.

The creation by Kilroy of the special account for the accommodation of Doody had only incidental bearing on Doody’s obtaining control of and converting to his own use the deposit monies advanced by the Graces. The Aiellos testified, and the Master found, that Doody, as real estate broker for the Aiellos, was only authorized to receive the $2,000 earnest money deposit from the Graces as provided in the contract. However, not only did Doody improperly deal with the $2,000 earnest money check issued to Kilroy by the Graces, as evidenced by his forgery of Kilroy’s endorsement thereon, but he acted beyond the scope of his broker agency by demanding and receiving from the Graces the three additional checks, the endorsements of Kilroy on which he again forged, as well as the additional $300 in cash. Three of the checks were deposited into the special account, and one of them was deposited into an account standing in the name of Doody’s wife, all within two days of their delivery to Doody by the Graces. What became of the $300 in cash which Doody received from the Graces does not appear of record. As is evidenced by the deposit of the check into the account standing in the name of Doody’s wife, it cannot be said that “but for Kilroy’s creation of the special account the conversion by Doody would not have occurred.” Doody acted in his capacity as real estate broker and “confidant” and in this manner improperly obtained the Graces’ money. That the checks were made payable to Kilroy and that Kilroy was nominated in the contract as escrowee does not alter this conclusion, inasmuch as the evidence shows, as the Master found, that Kilroy’s signatures on the checks were forged and that Kilroy never consented to act as escrowee under the contract. Any checks drawn by Kilroy upon either of the special accounts at the behest of Doody were drawn by him as agent for Doody; any improprieties engaged in by Doody alone, the principal, with respect to the funds on deposit in the special accounts cannot be charged against Kilroy, the agent. See generally 3 Am Jur2d, Agency, §§ 301-304.

The evidence further shows that the Graces in no way relied upon Kilroy or the special accounts when they entrusted their funds to Doody. Not until the counterclaim herein was filed did the Graces ever look to Kilroy for reimbursement for their loss. On the contrary, Doody was entrusted with the funds by the Graces, and it was Doody to whom the Graces first looked for reimbursement. It is apparent that the creation by Kilroy of the special accounts for the accommodation of Doody was not the prime cause of the Graces’ loss; rather, it was their entrusting to Doody almost $23,000 over and above the amount called for by the original contract, without any question on their part and without their having sought legal or other professional advice beforehand, and although the purchase price of the building was $28,000 whereas the Graces had been approved for a mortgage of $8,500 in late August.

The cases cited by appellants in this regard involved the question of which of two otherwise innocent parties must bear the loss occasioned by the wrong committed by a third-party malefactor where one of those two innocent parties provided the malefactor with the power by which the wrong was perpetrated. See e. g., Western Union Cold Storage Co. v. Bankers’ Nat. Bank of Chicago, 176 Ill 260, 52 NE 30; Otis v. Gardner, 105 Ill 436; Westlake Finance Co. v. Oak Park Motors, Inc., 19 Ill2d 66,166 NE2d 23. In the case at bar, on the other hand, there was no evidence that Kilroy was responsible for Doody’s obtaining the Graces’ funds and converting them to his own use. On the contrary, the evidence clearly shows that the Graces themselves gave Doody the power to perpetrate his criminal acts by placing their trust in him and delivering to him cash and checks in substantial amounts without question.

Appellants further maintain that, as a practicing attorney, Kilroy is presumed to know the impropriety of lending the use of his name to a person, enabling the latter to gain secret custody of trust funds. However, whatever may have been irregular about Kilroy’s creation of the special accounts, insofar as it was intended to defeat the rights of Doody’s creditors, it had no bearing upon the independent actions of Doody in gaining access to the Graces’ funds and employing them to his own use. Appellants state that because he was a practicing attorney, Kilroy must be “presumed to have had particular knowledge of the probable results of his misconduct,” yet it is difficult to perceive the relationship between the purpose of the special accounts, namely, to place Doody’s funds out of the reach of his creditors, and the conversion of the Graces’ funds to Doody’s own use, of which Kilroy was supposedly to have been aware when he opened the accounts. The further fact that Kilroy represented Doody in a criminal matter in the past does not, of itself, suggest that Kilroy should have been aware that Doody would attempt to use the special accounts to convert his clients’ funds to his own use.

The cases cited by appellants in support of their position that Kilroy should be held accountable because he should be “presumed to have had particular knowledge” that his conduct would provide Doody with the opportunity to convert his clients’ money to his own use are not in point, inasmuch as they deal with situations where the party held liable for the loss occasioned by the malefactor had direct knowledge of the existence of the situation and yet chose to ignore it. See Aurora Nat. Bank of Aurora v. Ed Fanning Chevrolet, Inc., 85 Ill App2d 394, 229 NE2d 2; Westlake Finance Co. v. Oak Park Motors, Inc., 19 Ill2d 66,166 NE2d 23.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gene Ross and James Goodman, Defendants-Appellants.
    Gen. No. 52,505.
    First District, Second Division.
    September 24, 1968.

      Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellees.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

The defendants, Gene Ross and James Goodman, were indicted for the crimes of rape and contributing to the sexual delinquency of a child. After a jury trial they were found guilty of contributing to the sexual delinquency of a child and each sentenced to one year in the House of Correction. A third defendant was found not guilty and discharged. On appeal the defendants contend that the State failed to establish that the criminal acts were committed within the County of Cook, State of Illinois.

On May 23, 1966, the prosecutrix, 16 years old, and her girl friend accepted a ride from the three defendants in Hammond, Indiana. All parties were residents of Indiana. After driving around for awhile, during which time they all drank some vodka and orange juice, the defendants then drove the girls to the Wolf Lake State Park. The prosecutrix testified that while at the park area, she was forcibly raped by Goodman and Ross. After dark, the defendants drove the girls back to Hammond where they went to the home of a friend and complained of the attack.

Defendants Ross and Goodman testified that they had kissed and fondled the prosecutrix, but denied having intercourse with her.

As to the location of the crimes, Wolf Lake is bisected by the Illinois-Indiana State line. Part of the area is located in Illinois and part in Indiana. Sergeant Kapornyai of the Hammond police department testified that on the day after the occurrence, the two girls directed him to the scene. After looking over the area it was his opinion that the crimes occurred in Cook County. Accordingly, the Indiana police turned the investigation over to the Chicago police department. Officer Robert Rogers of the Chicago police department testified that on July 27, 1966, the two girls accompanied him to the scene of the crime in Wolf Lake Park. Officer Rogers noted the location shown to him by the girls and then went to the Cook County Map Department. He checked the location on an Illinois map and determined that the crimes had occurred within Cook County. The two girls testified that they accompanied the officers to Wolf Lake and showed them the exact location where the car had been parked and the attacks took place. The police told them that the location was Cook County, Illinois.

The three defendants testified that they drove to Wolf Lake, parking on an old dirt road about two blocks from the water. They testified that the car was parked in Indiana about one-half mile from the Illinois line.

At the request of the State, the jury was given the following instruction:

“The People are required to prove that the crimes charged in the indictment herein were committed at and within the County of Cook. This is a jurisdictional fact and is known as venue but it is not an element of the crimes charged that must be proved beyond a reasonable doubt. It is sufficient if from all of the evidence the jury can reasonably believe that the crimes charged in the indictment were committed at and within the County of Cook.”

Defendants urge that it was error to give the above instruction because venue must be proved beyond a reasonable doubt. The State argues that while venue is a jurisdictional fact it is not an element to be proved beyond a reasonable doubt. The State cites People v. Adams, 300 Ill 20, 132 NE 765 (1921) in support of its contention. The Adams case did so hold, but since that decision, the Supreme Court repeatedly has stated that venue is a fact which must be proved beyond a reasonable doubt. People v. Strook, 347 Ill 460, 179 NE 821 (1932); People v. Gregor, 359 Ill 402, 194 NE 550 (1935); People v. Church, 366 Ill 149, 7 NE2d 894 (1937); People v. Long, 407 Ill 210, 95 NE2d 461 (1950). While the formal requirements governing proof of venue have been relaxed, and while it may be proved by circumstantial evidence, it is still necessary that venue, like any other fact in a criminal case, be proved beyond a reasonable doubt. People v. Pride, 16 Ill2d 82, 156 NE2d 551 (1959); People v. Mowry, 6 Ill2d 132, 126 NE2d 683 (1955). Since the evidence was in dispute as to whether the criminal acts occurred in Indiana or in Illinois, it was error for the trial court to charge the jury as to a lesser degree of proof necessary for venue. Accordingly, we must reverse the judgment and remand the cause for a new trial.

Inasmuch as we are remanding the cause for a new trial, we deem it necessary to comment on one argument of defendants that the testimony of the two police officers as to the location of the occurrence was inadmissible as hearsay evidence. The girls were able to point out the locale of the criminal acts and the officers stated that such place was located within Cook County. Their testimony was proper. People v. Jones, 6 Ill2d 252,128 NE2d 739 (1955).

For the reasons set forth above, the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

BURKE, P. J. and LYONS, J., concur.


author: MR. JUSTICE CRAVEN

text:
    Robert L. Johnson, et al., Plaintiffs-Appellants, v. State Police Merit Board of the State of Illinois, Defendant-Appellee.
    Gen. No. 50,481.
    First District.
    September 25, 1968.

      Alfred M. Loeser and William J. Harte, of Chicago, for appellants.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Richard A. Michael, Edward A. Berman, John J. O’Toole, A. Zola Groves, and Bernard Genis, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This is a consolidation of five separate appeals from a judgment order of the Circuit Court of Cook County in an administrative review action affirming the decision and findings of the State Police Merit Board which ordered appellants discharged from their positions in the classified service of the State of Illinois as Illinois State Highway Police. Four of the plaintiffs were sergeants and one was a trooper in the State Highway Police.

Motion was made to dismiss these appeals on various grounds, including failure to present complete and adequate abstracts and proper briefs, violative of the then Supreme Court Rules 36, 38 and 39. The motion was taken for consideration with the case.

We have considered the motion, and while the abstracts and briefs are not as complete as they should be, in the interests of justice, we have denied the motion except as to the appeal of Attilio B. Paoli. In the appeal of Paoli it is apparent from the record that the administrative-review action was not commenced within the 35-day statutory period required by section 267 of the statute (Ill Rev Stats 1961, c 110, § 267), the final decision of the Merit Board having been entered February 21, 1963, and served on plaintiff on the same day and re-served (due to earlier incorrect address) on February 26, 1963, and the complaint being filed April 3,1963. The statutory requirement is jurisdictional. Pearce Hospital Foundation v. Illinois Public Aid Commission, 15 Ill2d 301, 154 NE2d 691 (1958). Thus, the motion has been allowed as to Attilio B. Paoli and the appeal dismissed as to him.

Charges were filed with the State Police Merit Board against the several separate plaintiffs, Attilio B. Paoli, Robert L. Johnson, Michael Irpino, Roy Rutizer and James F. Novak, Illinois State Police Officers, by William H. Morris, Superintendent of State Police, charging each with violation of certain statutes of the State of Illinois, the Illinois constitution, the oath or pledge of office of the Illinois State Highway Police, certain general orders of the State Police, job-description duties, and certain rules and regulations of the State Police. While the charges were slightly different as to each policeman, substantially similar charges were made as to all five. These were that each participated in a scheme of accepting, requesting or receiving money from trucking companies in the Chicago area at Christmas and in midsummer for the vacation period; that knowing of these practices, they failed to report the same to their superiors; and that during the course of a grand jury investigation into these matters, each refused to sign a waiver of immunity of his constitutional rights when called to testify. The five police officers were suspended from duty pending disposition of the charges.

After hearing the charges, the State Police Merit Board found each policeman charged was guilty of the conduct charged and of violation of the statutes, general orders and rules and regulations of the State Police as charged, and ordered that the Superintendent of State Police discharge them from the rolls of the State Highway Police force as of the dates of their suspensions from duty. The five discharged officers then filed separate complaints for administrative review in the Circuit Court of Cook County. The circuit court reviewed the decisions and findings, and affirmed the same.

Plaintiffs filed separate appeals in the Supreme Court of Illinois, which that court consolidated and transferred to this court on its own motion on the basis that such claims failed to present a constitutional question.

One of the grounds of the findings and decision of the Merit Board is that the State Policemen concerned refused to sign a waiver of immunity in connection with their constitutional privilege against self-incrimination when called to testify before the grand jury investigating the matter of fraudulent conduct of State Police. Such refusal was held to be conduct unbecoming a State Police Officer, and a violation of the general orders and rules and regulations governing State Police, and grounds for discipline. Appellants contend that discipline or discharge for such refusal violates their constitutional rights under the Fourteenth Amendment to the Constitution of the United States.

We note that the Illinois Supreme Court transferred these cases to this Appellate Court on the basis that no constitutional question was present. Despite this indication of the view of our Supreme Court on this issue, we are of the opinion that we are compelled to pass upon the contention. In Garrity v. New Jersey, 385 US 493, 17 L Ed2d 562, 87 S Ct 616 (1967), the United States Supreme Court held that:

“the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.”

There, the policeman did not sign a waiver of immunity and no immunity statute was applicable. His testimony was not permitted to be used against him in a subsequent prosecution.

In Gardner v. Broderick, 392 US 273, 20 L Ed2d 1082, 88 S Ct 848 (1968), the United States Supreme Court held unconstitutional a provision of the New York City charter providing that a failure of a policeman to testify before a grand jury and to waive his constitutional privilege against testifying was grounds for his dismissal as a policeman. The Court specifically pointed out that this was the sole basis for his discharge and that it violated the constitutional protection. Thus, it is clear that the refusal to sign a waiver of immunity, standing alone, could not constitute grounds for dismissal.

In this case, however, there were other grounds, in addition to the foregoing, upon which the defendant Merit Board determined that the appellants should be discharged. Among these grounds were that the policemen received gratuities from truckers or trucking companies and failed to report to their superior these activities of themselves or like action by other members of the State Police; that some participated in or authorized the reduction of overweight arrest tickets of truckers. The Board found that these actions violated State statutes, general orders and the rules and regulations of the Department, and that such conduct was conduct unbecoming a police officer. In view of the evidence presented to the Board, we cannot say that the findings of the Board were arbitrary or capricious, or contrary to the manifest weight of the evidence. The record supports the findings.

We have searched the record to determine whether the existence of the evidence on the refusal to waive immunity so permeated the considerations and action of the Board as to require a reversal of the discharges. We are of the opinion that it did not contaminate the proceedings and that there being present several other substantial grounds for discharge, the findings and decision of the Merit Board were properly affirmed and that no reversible error exists in the discharge of appellants from their positions as State Police. Accordingly, the decision of the circuit court should be affirmed.

Affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: STOUDER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Revlon, Inc. and Abbey Drugs, Inc., Defendants-Appellants.
    Gen. No. 51,850.
    First District.
    September 25, 1968.

      Friedman, Koven, Salzman, Koenigsberg, Specks & Homer, of Chicago (Sheldon Karon, Joseph A. Spitalli, and Stephen C. Shamberg, of counsel), and Paul, Weiss, Rif kind, Wharton & Garrison, of New York, N. Y. (Jay H. Ropkis and Robert L. Laufer, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Burnham, Assistant State’s Attorneys, of counsel), for appellee.
   STOUDER, J.

This is a criminal action initiated in the Circuit Court of Cook County in April 1965, on the complaint of Clairol, Inc., alleging that Revlon, Inc. and Abbey Drugs, Inc., defendants-appellants, violated the Illinois Trade Mark Statute, chapter 140, section 25, Ill Rev Stats 1963. The issues were determined by the court without a jury and this appeal follows from the judgments of the court finding each defendant guilty and assessing each a fine of $200.

The facts are undisputed and the evidence presented is quite simple. One of the witnesses testified to the purchase of a package of “Revlon Colorsilk,” a permanent hair dye which is one of defendant Revlon’s products. The package was introduced as an exhibit. On the carton containing the hair dye, the product within was described as a Revlon product in large letters on the front, back, sides, top and bottom. In a column on one side of the carton, the various color shades of the Revlon hair dye are indicated and in the smallest letters appearing anywhere on such carton such color shades are compared with those of “Miss Clairol Hair Color Bath.” It is the reference to “Miss Clairol Hair Color Bath” which is the basis of this proceeding.

Other witnesses for the People testified that “Miss Clairol Hair Color Bath” with a crown in the background, (such crown not appearing on the Revlon carton) is the registered trademark regularly used by Clairol, Inc. and further that Clairol had granted no license to Revlon for the use of such trademark.

The defendants presented only one witness, the Associate Research Director of Revlon. It was admitted that Revlon had not received permission from Clairol to use the latter’s trademark. Revlon, although an established producer of cosmetics, did not enter the retail market in permanent hair dye until early in 1965, when it introduced “Colorsilk,” a product designed to compete with Clairol’s already established product “Miss Clairol Hair Color Bath.” Permanent hair dye is as the description implies, permanent. Once the dye has been applied to the hair the result cannot be changed except by cutting off the dyed hair or by redying. Because of the nature and effect of the dye it can only be reapplied infrequently. The result which may be obtained by the application of a particular shade of hair dye varies from individual to individual and depends upon the natural color and condition of the hair, as well as its previous treatment. Thus a familiar result is sought by the individual user. According to the witness, this familiarity of result is promoted by a common trade practice of using color comparison charts whereby the color shade to be expected from one company ’s product is compared with the result expected from a competitor’s product. The witness identified forty-five hair dye color comparison charts used and distributed for many years by most of the major companies. Of such color charts three were issued by Clairol comparing its product with those of other established competitors (not including Revlon). Four of the charts were those issued by Revlon (not relating to the product “Colorsilk”) comparing its product with that of Clairol and according to the witness no communication had ever been received from Clairol regarding such color comparison charts.

To demonstrate that in the hair dye industry the use of color comparison charts referring to competitors’ products and trademarks was not atypical, the defendants introduced into evidence seventy-four products recently purchased in New York or Chicago which included a reference to a competitor’s name or trademark. Defendants also introduced seventy-four advertisements which in the promotion of a product referred to the names and trademarks of competitors.

In seeking to reverse the judgments of the trial court, the defendants have made numerous assignments of error including improper application of statutes, violations of constitutional rights and failure to prove essential elements of the offense charged. In our view of this case the propriety of the judgments depends on the construction of the applicable statutory provisions.

In substance the complaint charged Revlon used Clairol’s registered trademark without the latter’s consent. The charge is based on a violation of section 25, chapter 140, Ill Rev Stats 1963, which provides, “Every person who shall use or display a trade-mark of which he is not the lawful owner in any manner not authorized by such owner shall be deemed guilty of a misdemeanor. . . .” The narrow issue is whether the statute intends to proscribe conduct in the absence of any deception, namely, without regard to the intent, purpose or result of such conduct.

In support of the judgment of the trial court, the People argue that the court properly construed the aforementioned section of the statute as requiring per se application regardless of the intent, purpose or effect of the conduct of the defendant and reliance is placed upon the language of the section itself, other statutory provisions and the public policy of the State.

Section 25, chapter 140, Ill Rev Stats 1963, was enacted in 1955, as a part of the general revision of chapter 140, Trade Mark Act of 1891. At the time of the revision of chapter 140 in 1955, the legislature also repealed section 288, chapter 38, enacted in 1953. Such section 288 provided, “When a person uses any peculiar name, letters, marks, device or figures, cut, stamped, cast or engraved upon, or in any way attached to or connected with any article manufactured or sold by him to designate it as an article of peculiar kind, character or quality, or as manufactured by him, whoever shall, without his consent, use the same or any similar names, letters, marks, devices, or figures for the purpose of falsely representing any article to have been manufactured by him, or to be of the same kind, character or quality as that manufactured or sold by the party rightfully using the same, shall for each offense be fined not exceeding $200.” The People argue that by repealing section 288, chapter 38, Ill Rev Stats 1953, and by failing to reenact any similar provision such legislative procedure represents a deliberate intent to eliminate the requirement of deception as an element of the offense.

We do not ascribe such significance to the repeal of section 288, chapter 38, Ill Rev Stats 1953. Although section 288, chapter 38 was enacted in 1953 such provision derived from previous sections 115 and 116 of chapter 38, which were in effect in 1891 at the time of the adoption of the Trade Mark Act of 1891, (chapter 140). In the first place if the legislature intended to eliminate deception as an element of a trademark violation it could have done so by merely eliminating “falsely representing” from section 288, which it did not do. In the second place, the purpose and intention of the legislature in repealing section 288 is evident from and explained by other considerations unrelated to the view asserted by the People. Section 288 and prior sections 115 and 116 of chapter 38, were applicable to trademarks whether registered or not. White v. Wagar, 83 Ill App 592. The Trade Mark Act of 1891 (chapter 140) was applicable to registered trademarks only. Vincendeau v. People, 219 Ill 474, 76 NE 675. The legislature in its 1955 revision of chapter 140 provided in section 21 that “Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law,” thereby making the provisions of chapter 140 applicable to trademarks whether registered or not. Under such circumstances the continuance of any provision relating thereto in chapter 38, became unnecessary. In the third place, such argument assumes that deception was not an essential element of the offense under the Trade Mark Act of 1891 (chapter 140) or if so included was not continued in the 1955 revision of chapter 140. As we shall later see, neither of these assumptions can be supported.

Since there are no cases construing or applying section 25, chapter 140, Ill Rev Stats 1955, it is necessary and appropriate that we consider the nature of a trademark, the development of our theories relating thereto and the relation of such section to other sections of the 1955 revision of chapter 140 as well as to prior statutory provisions. Sections 24 and 25 of the 1955 revision of chapter 140 in effect in 1963, are derived substantially from sections 2 and 5, respectively, of the Trade Mark Act of 1891 (chapter 140, Laws of 1891). Present section 24 of chapter 140 provides, “Whoever counterfeits or imitates any trade-mark of which he is not the rightful owner or in any way utters or circulates any counterfeit or imitation or knowingly sells or disposes of or keeps or has in his possession, with intent that the same shall be sold or disposed of, any goods, wares, merchandise, or other product of labor to which any such counterfeit or imitation is printed, painted, stamped or impressed, or knowingly sells or disposes of any goods, wares, merchandise or other product of labor contained in any box, case, can or package to which or on which any such counterfeit or imitation is attached, affixed, printed, painted, stamped or impressed, or keeps or has in his possession with intent that the same shall be sold or disposed of, any goods, wares, merchandise or other product of labor in any box, case, can or package to which or on which any such counterfeit, or imitation is attached, affixed, printed, painted, stamped or impressed, shall be punished by . . .” Former section 2, chapter 140, Laws of 1891 provided, “Whoever counterfeits or imitates any such label, trademark, term, design, device or form of advertisement, or sells, offers for sale or in any way utters or circulates any counterfeit or imitation of any such label, trade-mark, term, design, device or form of advertisement, or knowingly uses any such counterfeit or imitation, or knowingly sells or disposes of or keeps or has in his possession, with intent that the same shall be sold or disposed of, any goods, wares, merchandise, or other product of labor to which any such counterfeit or imitation is attached or affixed, or on which any such counterfeit or imitation is printed, painted, stamped or impressed, or knowingly sells or disposes of any goods, wares, merchandise or other product of labor contained in any box, case, can or package to which or on which any such counterfeit or imitation is attached, affixed, printed, painted, stamped or impressed or keeps or has in his possession with intent that the same shall be sold or disposed of, any goods, wares, merchandise or other product of labor in any box, case, can or package to which or on which any such counterfeit or imitation is attached, affixed, printed, painted, stamped or impressed, shall be punished by . . .” Initially it should be noted that trademark is not defined in chapter 140 of the Trade Mark Act of 1891. Section 2 describes the interest or property right with respect to which conduct is proscribed as “. . . label, trade-mark, term, design, device or form of advertisement. . . .” Section 23 of the 1955 revision of chapter 140, defines trademark as, “Trade-mark means anything adopted and used by a person to identify goods made, sold, produced or distributed by him or with his authorization and which distinguishes them from goods made, sold, produced or distributed by others.” Thus it can be seen that the only substantial difference between present section 24 and prior section 2 is the employment of the term “trade-mark” (defined in section 23) as the interest to be protected, for the previous language relating to labels, trademarks and forms of advertisements. This change or substitution is of utmost significance and importance since its full import involves considerations basic to an understanding of the provisions of the Trade Mark Act of 1891 and the 1955 revision.

Historically our concepts concerning trademarks are of fairly recent origin having developed during the last one hundred years. The Trade Mark Act of 1891 was enacted at an early stage in the evolution of trademark law and the importance of trademarks has increased as our system for the mass distribution of goods also has increased. The definition of trademark (section 23, chapter 140, Ill Rev Stats 1955) may be said to be the generally accepted common-law definition of a trademark. Such definition has, however, evolved over the years and it would appear that the Trade Mark Act of 1891 (chapter 140) does not reflect the concept of a trademark as it is presently understood and defined in the 1955 revision. The implications dependent on such definition have not always been clearly understood and applied. By its nature a trademark is symbolic, representative and intangible. It derives its benefit or value by imitative reproduction in association with the goods or services it is designed to promote. It has sometimes been confused with the agency of its communication. Lack of a clear awareness as to the true nature of a trademark interest has led to the use of imprecise language thereby contributing to ambiguity or misconception. A trademark is not a “label” or a “form of advertisement.” They are only the means by which the symbolic identification represented by a trademark is communicated. The 1955 revision of chapter 140, by defining trademark and incorporating such definition by-reference, delineates the nature of a trademark from the agencies or instruments of its communication.

It would appear that the lack of a clear appreciation as to the nature of a trademark in section 2 (chapter 140, Laws of 1891) may have led to an uncritical adoption of language describing the conduct proscribed in the first clause of such section, such section provides “Whoever counterfeits or imitates any such label . . . .” Although “counterfeits or imitates” is frequently used with the disjunctive implying similar or legally equivalent meaning, such is not the case. “Counterfeit” means “false representation” or “imitation with intent to deceive,” thus it may be said that something which is counterfeit is an imitation but it is more than an imitation, it is imitation plus deception. 10 Words & Phrases, 40. For example a painting may be copied or imitated but it will be a counterfeit only if it is represented to be the original. So long as the copy is represented as a copy or imitation it is not a counterfeit. White v. Wagner, 185 Ill 195, 57 NE 26, recognized that an imitated label was not a forged instrument either at common law or by statute. As set forth in White, supra, the essence of the injury to the property interest conferred by a trademark and an owner thereof was the deception of the person relying thereon. See also People v. Strieker, 258 Ill 618, 102 NE 216. Deception does not arise from mere imitation of a trademark but does arise from imitation and use in connection with the promotion of goods or services. The further provisions in section 2 (chapter 140, Laws of 1891) recognize the requirement of deception by describing imitation or counterfeit in connection with various phases of the promotion and sale of goods or services. Thus it may not be inappropriate to describe the violation in terms of “counterfeit” if it be understood that such term includes the element of deception arising from the misrepresentation of identity. Section 24 of the 1953 revision retains the language “counterfeits or imitates” as a general proscription of conduct as well as specifying acts or conduct in which “counterfeited or imitated” trademarks are employed. As we have said before, “imitation” is included in the term “counterfeit” and hence its meaning being limited thereby imitation alone can not be said to establish any misconduct. However where imitation is described in connection with other acts which do in fact describe misrepresentation of the identification conveyed by a trademark, deception does occur.

It also may be said that “counterfeit” is sometimes used in opposition to “genuine” and something which is “counterfeit” is frequently described as “not genuine.” This concept apparently led to the adoption of section 5, chapter 140, Laws of 1891, a predecessor to section 25, chapter 140 of the 1955 revision. Section 5 provides “Every person who shall use or display the genuine label, trade-mark, or form of advertisement of any such person, association or union, in any manner not authorized by such person, union or association shall be deemed guilty of a misdemeanor. . . .” It would appear that this section was intended to be complementary to section 2 and apparently contemplated that if “counterfeit labels” should be proscribed, “genuine labels” could also be misused. Such intention represents a lack of appreciation of “counterfeit,” meaning “imitation with intent to deceive” as applied to the imitation and use of a trademark. In the first place, it should be noted that section 5 continues to describe the interest to be protected in terms which fail to distinguish a trademark from the agency of its communication. In the second place the theory of “genuineness” in opposition to “counterfeit” has no meaning when applied to the misuse of a trademark. The interest in a trademark can only be exercised by imitation even by the owner. As a means of symbolic identification there can be no genuine trademark but only a reproduction thereof. In the third place, a term such as “genuine label” has no particular application to a trademark violation since the essence of the offense is the sale or promotion of a product misrepresenting the product to be that of another. Such misrepresentation occurs even though labels printed by the owners thereof are used. It would appear that somehow or other the statute is concerned with the circumstance under which the labels are obtained such as theft. In our opinion although section 5 purports to describe an offense complementary or in addition to that described in section 2 it failed to do so.

The only changes of significance between section 5, chapter 140, Laws of 1891 and section 25, chapter 140 of the 1955 revision is that in the revision “trade-mark” is substituted for the phrase “genuine trade-mark, label or form of advertisement” and the phrase “use or display” is substituted for “display.” It would appear to us that the drafters of the 1955 revision initially recognized the confusion in the 1891 Act between a trademark and the agencies of its communication and that the principal change derived from section 5 was intended to make the provisions of the revision consistent in this respect without awareness either of the previous ambiguity of section 5 or of the conflict in section 25 with the language of section 24, chapter 140, of the 1955 revision. It is our conclusion that since section 24 of the 1955 revision of chapter 140 retains the essential basis of the offense described in section 2, chapter 140, Laws of 1891, namely “counterfeits or imitates with the intent to deceive,” section 25 is in hopeless conflict therewith and in our opinion fails to state an offense.

We believe this view is supported by other considerations relating to public policy. Prior to the decision in Lady Esther, Inc. v. Lady Esther Corset Shoppe, Inc., 317 Ill App 451, 46 NE2d 165, the misrepresentation or deception which was considered the gist of a trademark violation was the “palming off” of the product of one as being the product of another. The application of the misrepresentation or deception rule was applied only in the case of competitors. In the Lady Esther case the theory of deception was extended to noncompetitors or to those cases where the use of another’s trademark would probably result in the purchaser being confused or mistaken concerning the relation of the owner of the trademark to the product sold. The concept of deception was extended from one of purpose or intent to include result. It was this theory of deception which was adopted in the 1955 revision of chapter 140 in section 19, applicable to civil remedies. Under such circumstances it would be difficult to conclude that the legislature intended to eliminate the requirement of deception as the basis for a trademark violation.

For the foregoing reasons the judgments of the Circuit Court of Cook County are reversed.

Judgments reversed.

ALLOY, P. J. and CULBERTSON, J., concur.


author: MR. JUSTICE ENGLISH

text:
    Johnnie Dailey and Lottie Dailey, Plaintiffs-Appellees, v. Archie Hill, Defendant-Appellant.
    Gen. No. 51,929.
    First District, Fourth Division.
    September 25, 1968.

      M. A. Haft & Associates, of Chicago (Richard S. Gore, of counsel), for appellant.
    Gonsky & Sheppard, and Block, Levy & Becker, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs brought this action to recover for injuries to themselves and damage to their car alleged to have been sustained on August 3, 1965, in Dolton, Illinois, when defendant “negligently” allowed his car to collide with the rear end of their car. The case was tried before a jury which found in favor of defendant. Plaintiffs filed a post-trial motion seeking, in the alternative, either judgment notwithstanding the verdict on the issue of liability or a new trial. The court entered an order for a new trial. Defendant petitioned this court for leave to appeal from that order, which petition we granted.

We summarize the evidence adduced at the trial:

For the plaintiffs

Archie Hill, defendant, called as an adverse party under Section 60 of the Practice Act. Ill Rev Stats, c 110, § 60.

He was driving a 1961 Ford Galaxie at about 5:00 p. m. on August 3, 1965. He had owned the car for a month, and it was in excellent condition when he bought it. It had new tires and the brakes had been tested several weeks after purchase.

He was driving west on Sibley Boulevard, approaching Chicago Road. It was raining and his windshield wipers were on. He was alone in the car, traveling in “medium” traffic at 15-20 m. p. h. in the southernmost of the two westbound lanes. There was another car on his right, also traveling west but at a slightly faster rate. He glanced at this car and, when he looked back, he became aware of the car in front of him when its taillights went on. That car was between 75 and 90 feet in front of his car at the time. He slammed on his brakes.

His car skidded 60 to 80 feet in a straight line and collided with the car in front which was stopped at the intersection. The impact occurred east of the intersection. He could possibly have been traveling more than 5 m. p. h. at the time of the impact. His car did not move forward after the impact. At the moment of impact the traffic light was yellow.

Johnnie E. Dailey, plaintiff.

He was driving with his wife in his 1961 Buick, traveling west on Sibley Boulevard when the collision occurred. His car was in excellent condition; it was raining; the windshield wipers were on. When he was 50 or 55 feet from the intersection with Chicago Road, the traffic light changed from green to “caution.” He was going 25-35 m. p. h. He applied his brakes, the light turned red, and he came to a complete stop.

As soon as he stopped he noticed in his rearview mirror that defendant’s car was approaching. A couple of seconds later the collision occurred. Defendant was alone in his car.

Lottie Mae Dailey, plaintiff

She had no warning of this accident prior to impact, her husband having said nothing to alert her.

For the defense

Philip Hagel

He was driving a truck tractor east on Sibley Boulevard, approaching Chicago Road, when he saw the collision between the cars of plaintiffs and defendant. Plaintiffs’ car was right on top of the intersection when the traffic light changed from green to amber. Plaintiffs’ car stopped very suddenly “right on top the crosswalk.” There were cars on Chicago Road but no traffic was crossing the intersection at the time.

Defendant’s car hit plaintiffs’ car, knocking it forward approximately 10 feet. Mr. Dailey then drove it to the right side of the road. While plaintiffs were in the car they were “laughing and kibitzing.” Then he noticed the seat go back part way in their car.

He was about 50 feet from the intersection at the time of the impact. He could only see the traffic light facing west while plaintiffs were controlled by the light visible to the east of the intersection. He could not see the taillights on plaintiffs’ car. There was another car to plaintiffs’ right, traveling in the same direction, as they approached the intersection.

Archie Hill, defendant.

The vehicle passing on his right distracted his attention for about a second.

Opinion

Defendant asserts that the trial was fair, and on that point there is no dispute on this appeal. Accordingly, plaintiffs seek to justify the order granting a new trial on the sole ground that the verdict was against the weight of the evidence. The only contested question, therefore, is whether the trial court abused its discretion under the circumstances. We have carefully examined the evidence and believe that the granting of a new trial in this case did constitute an abuse of discretion.

Testimony was given by plaintiffs that Mr. Dailey was driving at a reasonable rate of speed, saw the traffic light change to amber when he was some distance away, and stopped his car before he reached the intersection. Also, there was testimony by Mr. Dailey from which it could be inferred that defendant, while following plaintiffs’ car, was careless in failing to notice that it had stopped for the light, and was traveling too fast (as measured by the length of the skid) to avoid the collision. The jury could have accepted Mr. Dailey’s testimony as true and rendered a verdict for plaintiffs.

However, there was other testimony, including that of the only disinterested witness in the case, to the effect that Mr. Dailey stopped his car with unreasonable suddenness when he was right on top of the intersection at the change of the light from green to yellow. The jury might properly have believed this testimony, and might also have believed from the evidence that defendant was traveling at an appropriate speed under the circumstances, that the comparatively long skid was caused by rain on the pavement, and that since a car was passing him on the right it was reasonable for defendant to have glanced in that direction for a second. Considering the evidence in this light, the jury could properly have found, as it did, that defendant was not negligent.

Defendant was entitled to have these questions of fact decided by the jury, and it is irrelevant that the judge might have decided the case differently, based on his own evaluation of the testimony. Determination of the weight to be accorded conflicting testimony, the drawing of inferences from the evidence, and resolving issues of fact such as negligence are preeminently matters for the jury and not for the judge. In the proper exercise of his discretion a judge may not set aside a verdict and grant a new trial unless it is clear that the verdict resulted from passion or prejudice or is wholly unwarranted by the evidence. E. g., Morelia v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106; Foster v. Van Gilder, 65 Ill App2d 373, 213 NE2d 421. The verdict here is amply supported by the weight of the evidence and must be allowed to stand.

Decision

The order granting a new trial is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MCCORMICK, P. J. and DRUCKER, J., concur.

       On cross-examination, he estimated he was 40 to 50 feet from the intersection when the light changed.

       On cross-examination, he testified he first saw defendant’s car when he was 50-60 feet from the intersection.


author: MR. JUSTICE MURPHY

text:
    Bernard Koenig, Plaintiff-Appellee, v. Louis Nardello, Defendant-Appellant.
    Gen. No. 52,549.
    First District, First Division.
    September 30, 1968.
    George F. Barrett, of Chicago (Michael J. McArdle, of counsel), for appellant.

      Sudak & Grubman, and Maxfield Weisbrod, of Chicago (Maxfield Weisbrod, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which defendant filed an answer and a jury demand. When the case was regularly reached for trial on May 9, 1967, the assignment judge denied a request of defendant’s counsel for a continuance because defendant was out of town and unavailable. The case was then assigned to a magistrate where, on the assumption of both court and counsel that a default order had been entered by the assignment judge, it was submitted to a jury on the single issue of damages, over defendant’s objections that he was entitled to a jury trial on both issues of liability and damages. A $4,500 verdict was returned for plaintiff, on which judgment was entered on May 9, 1967. Defendant appeals from the denial of his motion to vacate the judgment and for a new trial.

On June 15, 1967, defendant presented a motion to the assignment judge to vacate the default order and the judgment entered against him on May 9, 1967. After a hearing, the assignment judge stated that no default order had been entered on May 9, 1967, and that “I didn’t say anything about a default. I didn’t say anything about barring any defenses. I don’t limit the hearing to anything.”

The motion to vacate the judgment was then assigned to the trial judge for disposition. After an extended hearing, the trial judge insisted that a default order had been entered and denied the motion to vacate the default order and judgment after remarking, “And under our assignment system, a case is known for weeks approximately when it is going to come for trial, and it is the attorney’s duty for the respective parties, to so inform their clients and have them ready, willing, and available for trial. And I don’t feel it is proper to grant a continuance merely because the defendant saw fit to take a vacation. . . . Your office handles a tremendous percentage of cases in the Municipal Division. . . . And due to this unique position, I feel that you gentlemen have added responsibility, as officers of the Court, to see to it that these proceedings move smoothly, and to see to it, in fact, that you are ready for trial. You are not amateurs. This is a further practical reason why this case was defaulted. So, your motion to set aside the judgment to vacate the default and judgment entered May 9, is denied.”

Because of the disagreement between court and counsel as to what happened before the assignment judge and the trial judge, we have examined the entire transcript of the proceedings and have come to the following conclusions: (1) It was within the sound discretion of the assignment judge to deny defendant’s motion for a continuance because defendant was out of the state and to assign the case for trial. The case had appeared on the regular trial call on March 31,1967, and it was continued on the trial call to May 9, 1967. Defendant’s counsel was aware of the continued date and also was notified by plaintiff on May 4, 1967, to produce the defendant at the trial on May 9, 1967. (2) The erroneous assumption of both the attorneys and the trial court that an order of default had been entered caused the trial court to proceed with the trial only on the issue of damages.

Although the record indicates a lack of cooperation by defendant’s counsel, which was frustrating to opposing counsel and irritating to the court, we are of the opinion that prejudicial error occurred here, whether or not a default order was entered by the assignment judge. The Illinois authorities on defendant’s “absence from trial” show that “where there is an answer on file, a default does not exist merely because defendant does not appear at the time the case is called for trial. After issue has been joined, the plaintiff must proceed to prove his case and a trial must be had in the same manner as though the defendant had answered on being called.” 23 ILP, Judgments, § 57, p 174.

In Wacker v. Young, 172 Ill App 255 (1912), it is said (p 256):

“The court below erred in entering judgment by default after an appearance by defendant and pleas and affidavit of merits were filed, and issue taken thereon. After issue was joined, the plaintiff, to obtain judgment, must proceed and try his cause by a jury, in the same manner as if the defendant had answered to his name when called.”

In DuBreuil v. Klein, 253 Ill App 91 (1929), it is said (P 92):

“It is well settled that where the defendant in a case of this kind has filed a plea or pleas which raise issues that involve the question of the plaintiff in error’s guilt of the negligence charged in the declaration, these issues must be determined by the jury adversely to the defendant before damages can be assessed against him, whether the defendant in the suit be present or absent at the trial. ... It is apparent therefore that the judgment rendered in this case is erroneous.”

See, also, Harris v. Juenger, 367 Ill 478, 480, 11 NE2d 929 (1937); Westmoreland v. West, 19 Ill App2d 161, 164, 153 NE2d 275 (1958); and Hawthorne Paper Sales Co. v. Kolf, 41 Ill App2d 346, 350, 351, 190 NE2d 604 (1963).

For the reasons given, the judgment appealed from is reversed and the cause is remanded to the Circuit Court for a trial on all issues.

Reversed and remanded for a new trial.

BURMAN, P. J. and ADESKO, J., concur.


author: Mr. JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Fred L. Agnew, Defendant-Appellant.
    (No. 67-73;
    Fifth District
    August 3, 1971.
    Morton Zwick, Executive Director Illinois Defender Project, of Chicago, (Matthew J. Moran, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE MORAN

delivered the opinion of the court:

Fred L. Agnew, defendant-appellant, was convicted of the crimes of rape and armed robbery in a jury trial in the circuit court of St. Clair County in a case that was very close on the facts.

He claims in this appeal that the trial court committed reversible error in giving the following instruction:

'The Court instructs the jury, that a doubt to justify an acquittal must be reasonable, and it must arise from a candid and impartial consideration of all the evidence in the case; and is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause.
If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.”

In People v. Cagle, 41 Ill.2d 528, the Supreme Court held the giving of this instruction in almost identical language to be reversible error. See also, People v. Manley,—Ill.App.2d—, 5th District, filed July 16, 1971.

For the foregoing reasons the judgment of the circuit court of St. Clair County is reversed and this case is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and CREBS, JJ., concur.


text:
    George J. Rutledge, Plaintiff-Appellant, v. Bernard E. Niewoehner III, Defendant-Appellee.
    (No. 70—30;
    Fifth District
    August 3, 1971.
    Greaves and Phipps, of Champaign, and Armin C. Bear, of Tuscola, for appellant.
    Burnside and Dees, of Vandalia, for appellee.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Gerald E. Duncan et al., Plaintiffs-Appellees, vs. Carole Dawn Irwin et al., Defendants-Appellants.
    (No. 70-12;
    Fifth District
    August 6, 1971.
    Wiseman, Shaikiwitz, & McGivern, of Alton, for appellants.
    Hillary H. Hallett and L. James Struif, both of East Alton, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Appeal from an Order by the trial court which stated:

“Petition to Revoke Adoption Consent and Custody of Child called for hearing. Evidence heard and petitioner rests her case.
The Comt, after being fully advised, finds the issues raised by the Petition to Revoke Adoption Consent and Custody of Child in favor of the plaintiff and against the defendant, and finds there is no credible evidence to prove any allegations of fraud or duress being used on the petitioner, Carole Dawn Irwin. As to the allegations of payments made or promised to the petitioner, the Court finds the same, if made, by her own testimony in no way affected her decision to sign the consent. Petition to Revoke Adoption Consent and Custody of Child is denied at petitioner’s costs.”

Gerald E. Duncan and Ruby Duncan, the plaintiffs in this cause, filed their Petition for Adoption on September 25, 1969, wherein they prayed that the defendant, the natural mother, “be made defendant” to the petition and further, that the court “On final hearing of this petition, ORDER, ADVISE and DECREE that * * * [the child] to all legal intents and purposes, be the child of your petitioner * *

On the same day as the plaintiffs filed their petition there was also filed a “Consent to Adoption of a Minor Child” signed by Carole D. Irwin, the defendant herein.

Defendant was served with summons. The return, filed on October 7, 1969, indicated that the summons was served upon the defendant on September 26, 1969.

The defendant, on October 8, 1969, filed a “Petition to Revoke Adoption Consent and for Return of Custody of Child”. The Court heard the petition to revoke on October 23, 1969, and took the matter under advisement until the following day when the Court entered the order above set forth and from which the defendant has brought this appeal.

Before we can go into the merits of this cause, it is necessary for us to first determine whether the trial court has entered an order from which the defendant may appeal.

There can be no question that all of the issues between the parties hereto have not been adjudicated. The court has not entered or refused to enter its final decree of adoption. Whether the order denying the revocation of consent is appealable is controlled by Supreme Court Rule 304 (Ill. Rev. Stat. 1969, ch. 110A, par. 304), entitled “Judgments as to Fewer Than All Parties or Issues”.

For there to he an appeal when fewer than all issues are decided, it is a prerequisite that the trial court make “an express written finding that there is no just reason for delaying enforcement or appeal.” Although this finding can be made by the court on its own motion or on the motion of a party no such finding is part of the record of this cause.

The Rule provides: “In the absence of such a finding, any judgment that adjudicates fewer tiran all the claims * * * is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights and liabilities of all the parties.”

This Rule and the purposes for which it is intended are particularly appropriate to the present cause. The trial court must determine, after application by the plaintiffs herein and after a hearing, “that the adoption is for the welfare of the child and that there is a valid consent” before a decree of adoption may be granted. (Ill. Rev. Stat., ch. 4, par. 9.1—14.) Thus, the issue of the consent must be finally decided by the trial court before there is an appealable order. (E. M. S. Co. v. Brandt, (1968), 103 Ill.App.2d 445, 243 N.E.2d 695; Alster v. Chicago Tastee-Freeze Corp. (1965), 61 Ill.App.2d 163, 208 N.E.2d 878), but other issues must also be decided before a decree of adoption can be entered.

Appellants contend that under the holding in Oppenheimer Bros., Inc. v. Joyce & Co., 17 Ill.App.2d 408, 150 N.E.2d 381, if the judgment is final as to part of the case that it is not necessary that the court specifically order that there is no just reason for delaying enforcement or appeal. The First District Appellate Court there held that the trial court “must have determined that this order was final and that there was not just reason for delaying enforcement or appeal”, even though the finding, as in the present case, did not appear in the order and the order did not dispose of all the parties or claims. There the court reached its conclusion because the order entered by the trial court directed the imposition of costs and master’s fees on plaintiff and that execution issue therefor. As is pointed out in “Historical and Practice Notes”, Ill. Anno. Stat., Ch. 110A, § 304 at page 588, “No other Appellate Court adopted the rule of the Oppenheimer case. In American Savings & Accounting Supply, Inc. v. Steinhauer, 41 Ill.App.2d 37, 190 N.E.2d 167 (1st Dist. 1963) it was indicated that Oppenheimer case will no longer be followed in the First District.”

We do not consider other cases cited by appellant as controlling on the factual situation here present. This question of whether or not a final order is appealable has long been a troublesome one to reviewing courts in the State, as is evidenced by the numerous cases decided under the former section 50(2) of the Practice Act and under Supreme Court Rule 304 which was adopted to supplant that section, and it has been held that a Rule 304 finding does not make final and appealable a judgment which is not final or appealable absent the rule. (Veach v. Great Atlantic & Pacific Tea Co., 22 Ill.App.2d 179, 159 N.E.2d 833.) By adoption of Rule 304 it was sought to emphasize that it is not the court’s finding that makes the judgment final, but it is the court’s finding that makes this kind of a final judgment appealable, but it did not change the law. The Rule was amended to be effective January 1, 1970, and while the language of the 1967 Rule was not changed a paragraph (b) was added listing several kinds of judgments and orders that have been appealable without the finding by the trial court. The 1970 rule was intended to be declaratory of then existing law (See Committee Comments, ch. 110A, § 304, Ill. Anno. Stat., p. 54, 1971 Cum. Ann. Pocket Part); an order ruling on the validity of the consent in an adoption proceeding is not included in the new paragraph (b) of the Rule.

We therefore determine that we are without jurisdiction to determine the appeal, and dismiss the appeal.

Appeal dismissed.

MORAN and JONES, JJ., concur.


author: Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellant, vs. Gary Blair et al., Defendants-Appellees.
    (Nos. 70-86 & 70-87;
    Fifth District
    August 10, 1971.
    Don Johnson, State’s Attorney, of Pickneyville, for the People.
    Paul Bradley, District Defender, Defender Project, of Mt. Vernon, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

An Information was filed charging the defendants, Gary Blair and Jimmy W. Duncil, with the offenses of burglary and possession of burglary tools, theft and criminal damage to property.

On waiver of indictment and plea of guilty on March 6, 1969, and following a hearing on aggravation and mitigation, each was sentenced to not less than two years nor more than four years for burglary; for possession of burglary tools — one year six months minimum nor more than two years; for theft of property under $150 one year; for criminal destruction of property — six months, the sentences to be served concurrently.

On December 8, 1969, Gary Blair and Jimmy W. Duncil, through their attorneys, filed a motion to vacate judgment “under Section 72 of the Civil Practice Act.” On February 10, 1970, both defendants were heard in connection with their motion.

The evidence adduced showed in substance that the carwash involved in the alleged burglary consisted of wash bays or stalls open at each end, a roof, concrete side walls and floor, and that it was equipped with washing apparatus and a coin box. The defendants claimed that they drove into the carwash intending to wash the car which defendant Blair was driving and when they had largely completed washing the car, the water ran out. They then took a tire tool and broke open the money box and removed $1.75, threw the box across the street and departed. There were no doors, gates, chains or fences prohibiting access to the carwash itself. The defendants’ motion raised the question whether the structure within which the acts in question were committed was a building within the terms of the statute governing burglary. Defendants also argue that since the carwash was open to the public they had the right to be where they were and did not enter the structure with the intention of committing a burglary.

On April 3, 1970, the trial judge vacated the judgment of conviction as to burglary and possession of burglary tools and dismissed Counts I and II of the Information, and upon a finding that the defendants had served their sentences with respect to Counts III and IV, theft under $150 and criminal destruction of property, ordered their immediate discharge from custody.

The People prosecute this appeal from the order vacating the judgment and dismissing Counts I and II of the Information.

The only substantial question before us is whether the admitted conduct constitutes a burglary. The statute (Ill. Rev. Stat. 1969, ch. 38, par. 19—1(a)), provides: “A person commits burglary when without authority he knowingly enters or without authority remains within a building, * * * with intent to commit therein a felony or theft"

In essence, the question is whether a carwash structure open to the public for entry and exit of automobiles is a building within the purview of the burglary statute. We have concluded that the carwash described and pictured in the record here does constitute such a building. It is a structure or edifice, it was designed for the shelter and protection of property consisting of carwash machinery, equipment and supplies and the coin box, and it is permanent.

In People v. Goins, 66 Ill.App.2d 251, 213 N.E.2d 52, the Second District Appellate Court decided that a telephone booth was a building within the meaning of this section of the Criminal Code. The booth was attached to a concrete slab, had three walls, a door and a roof, with a telephone and coin receptacle. We think the result reached in that case was correct and presents a similar situation to the carwash involved here.

It is no defense to the crime of burglary that the entryway was open and the entry made without overcoming an impediment, forcibly or otherwise. While the common law crime of burglary required a breaking and entering, section 1 — 3 of the present Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 1—3), entitled “Applicability of Common Law," says in part: “No conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State.” Professor Charles H. Bowman, writing committee comments for the Joint Committee to revise the Illinois Criminal Code, Smith-Hurd Annot. Stats., observes: “The purpose of this section is to complete the process of replacing the common law definition of offenses with statutory definitions — a process which has continued for many years.” And our Supreme Court pointed out in People v. Betson, 362 Ill. 502, 200 N.E. 594 that “All felonies in this state are defined by, and required to be prosecuted under, our Criminal Code.” Thus the present statute defining burglary, cited above, requires only an entry with the intent to commit a felony or theft; neither brealdng nor force must be shown. Also, there is no substantial question in Illinois but that there can be a burglary of a public place, and it is a question of fact whether or not the entry was initially made with the requisite intent to commit a felony or a theft. (People v. Weaver, 41 Ill.2d 434, 243 N.E.2d 245; certiorari denied 395 U.S. 595, 89 Sup. Ct. 2100 (Laundromat); People v. Schneller, 69 Ill.App.2d 50, 216 N.E. 510 (Chicago Historical Society while open to the public); People v. Wilson, 84 Ill.App.2d 215, 228 N.E.2d 585 (Supermarket while open to the public).) Here, defendants’ contention that the intent to commit burglary was formed on the premises after the entiy is without substance in that the defendants entered their voluntary plea of guilty to the charge that they “without authority, knowingly entered into a building * * * with the intent to commit the crime of theft therein.”

Accordingly, the order of the trial court vacating the judgment of conviction as to burglary and possession of burglary tools and dismissing Counts I and II of the Information filed on April 3, 1970, is hereby reversed and the cause is remanded to the trial court with instructions to proceed in conformity with this opinion.

Reversed and remanded.

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