author: JUSTICE HOPE

text:
    ILLINOIS NATIONAL BANK & TRUST CO., Trustee, Plaintiff-Appellee, v. GULF STATES ENERGY CORPORATION et al., Defendants-Appellants.—RICHARD KALLENBACH et al., Plaintiffs-Appellees, v. GULF STATES ENERGY CORPORATION et al., Defendants-Appellants.
    Second District
    Nos. 80-891, 80-892 cons.
    Opinion filed December 17, 1981.
    Rehearing denied January 27, 1982.

      Bernard P. Reese, Jr., of Reese and Reese, of Rockford, for appellants.
    Robert W. Gosdick, of Rockford, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Defendants, Gulf States Energy Corporation and Royal Russell, appeal the rescission of certain transactions concerning fractional interests in oil and gas leases. The Winnebago County Circuit Court held these transactions to be sales of securities within the meaning of the Illinois Securities Act (Ill. Rev. Stat. 1973, ch. 12112, par. 137.1 etseq.) and ordered rescission of the sales for defendants’ failure to register the securities with the Secretary of State’s Office, as required by the Act (Ill. Rev. Stat. 1973, ch. 121½, par. 137.5).

Plaintiffs had filed their complaints separately, but because the cases had identical issues and nearly identical facts, they were consolidated for trial and for this appeal.

Defendants contend that they are not subject to the personal jurisdiction of the Illinois Courts; that the agreements made by the parties did not constitute the purchases of securities; that the Illinois Securities Act does not apply to a contract made in Texas; and, finally, that plaintiffs failed to comply with notice and tender requirements of the Illinois Securities Act and thus cannot recover under that Act.

Defendant Gulf States Energy Corporation (Gulf States) is a Texas corporation which owned oil and gas leases in Texas. Defendant Royal Russell is Gulf States’ president. Gulf States sells fractional interests in its leases to drill and develop producing wells.

Gulf States initiated the negotiations which led to the contracts in issue. Sometime in 1974 or 1975 John McGowan, a representative of Gulf States, telephoned plaintiff Richard Kallenbach and Robert Sullivan. McGowan proposed that they invest in nonproducing, working interests in wells leased by Gulf States. Each of these individuals received a prospectus through the mail from Gulf States. McGowan or another Gulf States’ representative telephoned Kallenbach and Sullivan a number of times. Kallenbach entered into a number of transactions with Gulf States in spring of 1975. He purchased a 2% working interest in three oil or gas wells, Celotex Prospect Gail #5, Gail #6 and Gail #7, in March and April 1975. He later made payments on Gail #5 re-entry, Gail #6 re-entry and Gail #8 re-entry. His total investment was $17,750. Illinois National Bank and Trust Company, as trustee for a trust established by Robert Sullivan for his benefit, and as trustee for a trust established by Dorothy Sullivan, Robert’s wife, for her benefit, also purchased working interests in Gulf States wells in separate transactions spread out over a number of months. As trustee for Robert Sullivan’s trust it entered into transactions concerning Gail #4, Gail #6, Gail #7, Gail #8 and Gail #5. In addition, additional drilling costs were paid on Gail #7. As trustee of Dorothy Sullivan’s trust the bank entered into transactions concerning Gail #4, Gail #6, Gail #7, and Gail #6 re-entry. Additional drilling costs were also paid on Gail #7 on behalf of this trust. The bank expended a total of $32,665 on behalf of the trusts.

The agreements are nearly identical, differing only in the date, location of the property, amount due, and the depth to which Gulf States agreed to drill. For the agreements regarding the re-entries Gulf States was to drill to 4800 feet, while in the other agreements the drilling depths varied from 3200 feet to 4800 feet. A representative agreement reads in part as follows:

“AGREEMENT CELOTEX PROSPECT GAIL # 4
THIS AGREEMENT made and entered into by and between GULF STATES ENERGY CORPORATION, a Texas corporation (Hereinafter called ‘Gulf States’), and Illinois National Rank & Trust Co. of Rockford, Trust No. 5424
WITNESSETH: THAT
WHEREAS, Gulf States is the owner of a certain mineral lease described as follows:
# # #
WHEREAS, said lease is subject to landowners and overriding royalties aggregating 21%, and as a consequence, the full 100% working interest carries a 79% net revenue interest in production; and
WHEREAS, Gulf States is engaged in the business of exploring for and producing oil and gas and operating oil and gas properties, and proposes to assign a portion of its working interest in the Lease to Investor and drill, or cause to be drilled an oil or gas well thereon upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, it is agreed by and between the parties as follows:
1. In consideration of the payment of $2,710.00, the receipt of which is hereby acknowledged, Gulf States hereby assigns to Investor an undivided 2% working interest in the Lease. Upon completion of the oil or gas well referred to in Paragraph 2 below, Gulf States shall execute and deliver an assignment to Investor in recordable form, which assignment shall contain covenants of special warranty, be subject to this Agreement and to the terms of the Lease and all instruments by, through and under which Gulf States holds said Lease, and reflect that Investor’s interest shall bear 21% of the royalties and overriding royalties burdening said Lease as stated herein.
2. Investor does hereby nominate, constitute and appoint Gulf States with full power and authority to drill, or cause to be drilled, an Oil or gas well on the Lease, (herein called the ‘Well’), to a maximum depth of 3,200 feet or to the Flippen Limestone, whichever comes first. Gulf States hereby accepts the $2,710.00 paid by Investor, which, together with amounts paid to Gulf States by other Investors, Gulf States accepts as payment for the drilling of the Well and hereby covenants that the drilling of the Well will begin on or before March 31, 1975 subject to events beyond the control of the operator, that such drilling will be done in a good, workmanlike, and continuous manner to the depth of 3200 feet or the Flippen Limestone, whichever comes first. If such drilling discovers commercial production, the Well will be fully equipped and necessary storage tanks placed thereon at the expense of Gulf States. As provided in the Operating Agreement referred to in Paragraph 3 below, Investor shall bear and pay his proportionate share of the costs and expenses incurred in connection with operating, producing and reworking the Well.
3. The parties hereto specifically agree to make and enter into an Operating Agreement for the development and operating of the Lease and Well in substantially the form of the Operating Agreement attached hereto as Exhibit A. Said Operating Agreement shall provide generally that Investor gives Gulf States the following powers:
(a) To market the oil or gas that may be produced.
(b) To collect and receive from any purchaser of such oil or gas all monies that may be due the Investor from the proceeds of the sale thereof.
(c) To give all proper receipts for monies and to pay out of the proceeds from the sale of any oil or gas produced from the Lease any expenses reasonably incurred in the production and sale of such oil or gas.
(d) To pay all taxes against such oil or gas lease from the proceeds thereof.
(e) To Execute for the Investor an oil or gas purchase contract.
4. Anything to the contrary contained in this Agreement, or the proposed Operating Agreement, notwithstanding, the Investor hereby reserves his ownership in the oil or gas in place under the Lease, together with his right to contract for the sale of his own interest in said oil or gas, except that Gulf States may negotiate limited sales contracts for the sale of production for a period not longer than one year, and provided that such sales contracts may be terminated by the Investor on not more than 30 days notice.
6 0»
6. It is not the purpose or intention of this Agreement to create a partnership or mining partnership and neither this Agreement nor the operations hereunder shall be construed as creating such relationship.
»66
10. This Agreement is made and entered into in Dallas, Texas, and shall be governed by the laws of the State of Texas.
The parties have executed this Agreement this_day of_, 1975.
GULF STATES ENERGY CORPORATION
By:_ss_ President
Illinois National Bank & Trust Co. of Rockford Trust No. 5424
_ss_ Investor’s Signature

The agreements were prepared by Gulf States in Texas and mailed to plaintiffs in Illinois. Plaintiffs signed the agreements and returned them to Gulf States in Texas with a check for the appropriate amount for each agreement. Upon receipt of the checks and documents signed by plaintiffs, Royal Russell signed the agreements on behalf of Gulf States. It appears that Gulf States did in fact drill as required by each agreement and that assignments were sent plaintiffs upon completion of the wells.

Sometime in the summer of 1976, plaintiffs learned that Gulf States may have sold securities in violation of the Illinois Securities Act by failing to register them with the Securities Division of the Secretary of State’s Office. On June 25, 1976, plaintiffs sent notices to defendants stating that plaintiffs considered their purchases of the interests void and that suit would be brought against defendants unless payment of the purchase price for each interest was made within 30 days. Richard Kallenbach and Mari Kallenbach (who was subsequently dismissed as a party plaintiff) filed a complaint against defendants on February 26, 1978, for return of the sums expended pursuant to the agreements. The complaint and summons were served on the Secretary of State’s office on July 14, 1978. Illinois National Bank & Trust Company filed its complaint against defendant on March 7, 1978, for sums it expended on behalf of the Sullivans’ trusts. Defendants were served with the complaints and summonses in Dallas, Texas. Defendants entered a special appearance in each case contesting the jurisdiction of the Illinois courts. The trial court found it had jurisdiction and required the defendants to answer. The actions were consolidated for trial which was held on July 14, 1980. The trial court subsequently found in favor of plaintiffs and ordered that plaintiffs were entitled to recover the amount of their original investments, plus interest from the date of investment at a rate of 5% per annum, minus any earnings and plus reasonable attorney fees. The court entered judgment for Richard Kallenbach in the amount of $20,930.28, and for Illinois National Bank and Trust Company in the amount of $39,186.21.

Defendants contend that their actions did not constitute minimum contacts within the State of Illinois so as to satisfy the requirements of section 17 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17) and of due process of law.

Section 17 provides in pertinent part:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person 0 * " to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(a) The transaction of any business within this State * * V’

Section 17, the Illinois long-arm statute, reflects “a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” (Nelson v. Miller (1957), 11 Ill. 2d 378, 389.) The requirements of due process, as first set out in International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158, are that a nonresident defendant must “have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Citations.]” In Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240, the Supreme Court explained, “[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

court must consider the facts in the particular case before it to determine whether the type of activity conducted in the State is adequate to satisfy the requirements. The determination must be made according to what is fair and reasonable in the situation before the court. (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761.) Although jurisdiction depends upon the facts of each case, some helpful principles have emerged from the frequent examinations our courts have made of the issue. The physical presence of a defendant in Illinois is not necessary in order for Illinois to maintain jurisdiction over him. (First Professional Leasing Co. v. Rappold (1974), 23 Ill. App. 3d 420, 424, 319 N.E.2d 324; Cook Associates, Inc. v. Colonial Broach & Machine Co. (1973), 14 Ill. App. 3d 965, 969, 304 N.E.2d 27.) Contact within the State may be accomplished by telephone and mail. (Cook Associates v. Colonial Broach & Machine; cf. Schneider Corporation of America v. R. W. Borrowdale Co. (1980), 89 Ill. App. 3d 904, 412 N.E.2d 605, and Davis v. Nehf (1973), 14 Ill. App. 3d 318, 302 N.E.2d 382, which required interpretation of New York’s, not Illinois’, long-arm statute.) Also, a single business transaction may be sufficient contact in order to establish jurisdiction. (Coca-Cola Co. v. A. Epstein & Sons International, Inc. (1980), 89 Ill. App. 3d 253, 257, 411 N.E.2d 917; Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 370 N.E.2d 1106.) The solicitation of a contract is a transaction within the meaning of the statute even where acceptance of the contract occurred outside the forum and where it was to be governed by nonforum law. Morton v. Environmental Land Systems, Ltd.

In the cases before us a Gulf States representative solicited investments in oil and gas wells by telephoning plaintiffs, who reside in Illinois. He then followed up his initial solicitation by sending a prospectus to each plaintiff and with further phone calls. The plaintiffs did not initiate any of the contacts. Once plaintiffs had notified Gulf States that they decided to invest in working interests in the oil and gas wells Gulf States sent agreements to plaintiffs for their signatures. Plaintiffs signed the agreements in Illinois and mailed them back to Gulf States in Texas where defendant Royal Russell signed them on behalf of Gulf States. Subsequently, Gulf States sent an assignment of production rights in a lease to each plaintiff with instructions to return the assignment to the appropriate county clerk in Texas for recording.

Defendants point out that Russell’s signature, the last necessary act to execute the agreement, occurred in Texas, that the agreements stated that Texas law was to apply, that the wells were on Texas land, and that the leases were to be recorded in Texas. Formalities of contract execution, however, are not determinative of jurisdiction. (Coca-Cola Co. v. A. Epstein & Sons International, Inc.) Further, though Illinois courts have considered the applicability of Illinois law as one factor in determining jurisdiction (Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14, 308 N.E.2d 78), the fact that nonforum law may apply does not preclude the possibility that an Illinois court has personal jurisdiction over a nonresident defendant. (Morton v. Environmental Land Systems, Ltd.) Further, the focus of our inquiry is not how much activity occurred outside of Illinois, but whether defendants’ acts in Illinois constituted minimum contacts with this State so as to subject defendants to the jurisdiction of an Illinois court. We conclude that defendant Gulf States had sufficient contacts within the State of Illinois to support jurisdiction under the long-arm statute.

We reach a different conclusion with respect to defendant Royal Russell. In his capacity as president of Gulf States he signed all of the agreements involved in this appeal. He did not participate in the actual solicitation of these investments. In Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 383 N.E.2d 1379, it was held that a conclusion that a foreign corporation is subject to our jurisdiction does not require the further conclusion that an employee of that corporation is also subject to our jurisdiction. “The mere fact that a corporation by which a nonresident is employed, or in which he is a stockholder is itself subject to Illinois jurisdiction does not subject that nonresident to jurisdiction.” (66 Ill. App. 3d 789, 797.) Russell’s only apparent connection with the agreement to purchase interests in oil and gas wells was to provide Gulf States’ final acceptance. He did no soliciting in Illinois. His signature on the agreements did not constitute sufficient minimum contact with the State of Illinois for our courts to maintain personal jurisdiction over him.

The remaining arguments raised by defendants on appeal will be discussed as they affect Gulf States.

The next issue before us is whether the transactions which are the bases of this suit were the sales of securities within the meaning of the Securities Act. Ill. Rev. Stat. 1973, ch. 12112, par. 137.1 et seq.

The definition of “security” under that Act is broad and includes “any 0 * e fractional undivided interest in oil, gas, or other mineral lease, right, or royalty * # Ill. Rev. Stat. 1973, ch. 121*2, par. 137.2 — 1.

A“[s]ale* ° * shall include every disposition, or attempt to dispose, of a security for value. ‘Sale’ or ‘sell’ shall also include * * * an attempt or an offer to sell * * Ill. Rev. Stat. 1973, ch. 121*2, par. 137.2 — 5.

Gulf States argues that the agreements do not reflect the sale of securities but payments in plaintiffs’ share of the costs of drilling.

The supreme court and this court have had occasion to analyze transactions similar to those here in issue. In both cases the plaintiffs sought to rescind transactions for being sales of securities in violation of the Securities Act. Because of differences in the contracts and the understandings of the parties in the two cases, the courts arrived at opposite conclusions about the contracts they considered. These cases were decided in light of previous securities statutes, but they did not differ in substance from those applicable here.

In Hammer v. Sanders (1956), 8 Ill. 2d 414, 134 N.E.2d 509, cert. denied (1956), 352 U.S. 878,1 L. Ed. 2d 79, 77 S. Ct. 100, plaintiffs entered into 51 transactions regarding oil leases in Indiana, Illinois and Kentucky. Forty-five transactions were evidenced by letter agreements. The court quoted a representative agreement which referred to the “ ‘acquisition of an interest in leases.’ ” (8 Ill. 2d 414, 416.) The instrument stated in pertinent part:

“ ‘We will assign to you an-undivided 1/128th working interest, under oil and gas leases on a block of 200 acres, located in Gibson County, Indiana, for the sum of $242.19.
We agree to commence or cause to be commenced, upon the leasehold estate described above, the drilling of a well for oil and/or gas, to diligently prosecute the drilling of same and to test all possible oil formations encountered to a depth of approximately 3000 feet, unless oil or gas in commercial quantities is discovered at a lesser depth, for the sum of $242.19, which is your share of the drilling cost of this well. We will plug the well should it be a dry hole.
In the event of a producing well, it is understood and agreed that, in addition to the amount as set out above, you will pay your proportionaté part of the casing, drilling in expense, and for all equipment necessary to complete the well, as well as your proportionate part of the monthly operating expense, upon receipt of invoice. It is also understood that for any additional wells that might be drilled, you will pay your proportionate part of all costs, which costs may include the normal drilling profit of Sanders-Fye Drilling Company.’ ” 8 Ill. 2d 414, 417.

The court analyzed the instrument’s terms with the view to determining its legal effect. It noted the instrument appeared to have two purposes: to assign, or evidence the sale of, or promise to assign, working interest in a lease for $242.19; and to evidence an agreement whereby the defendant was to drill a test well and the plaintiff was to pay $242.19 for his share of the drilling costs. It was unclear whether one or two payments were due. The ambiguity permitted consideration of extrinsic evidence, the parties’ stated understanding of the contract and their performance pursuant to that understanding.

Although the contract could be read to require two separate payments of $242.19 each, only one payment was made. This was understood to be payment for drilling costs. No sums were ever paid the drilling company for a working interest as such, nor did the parties intend that anything was or ever would be due for such an interest. On their Federal tax returns the plaintiffs treated all sums advanced by them as “intangible drilling and development costs,” not as payments for a leasehold interest, a capital asset. Further, the plaintiffs stated that all money expended by them was pursuant to bills for drilling. The drilling company, too, considered the money as payment for drilling costs. It told plaintiffs that if they contributed to the drilling of a well, a proportionate interest would be assigned them at no extra cost. Assuming plaintiffs acquired a security within the meaning of the statute, it was incidental to the development contract. They did not purchase it, but paid only for drilling costs. The court concluded that plaintiffs had not purchased a security within the meaning of the statute and that therefore the drilling company had not been required to comply with the provisions of the Securities Act.

This court considered an alleged sale of securities in Meihsner v. Runyon (1960), 23 Ill. App. 2d 446, 163 N.E.2d 236, and concluded in that case that the transactions in issue were sales of securities.

The agreements, each termed “Letter of Assignment,” read in pertinent part as follows:

“KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, Delbert Runyon * * * in consideration of One and no/100 ($1.00) dollars, * * * does hereby sell unto Mrs. L. T. Meihsner * * * an undivided l/64th interest in the 7/8th or working interest in the first oil and/or gas well to be drilled upon the location upon the following described real estate, to wit:
0 0 0
Should oil or gas be produced in paying quantities from the well to be drilled in which the assignee herein named is a participant, then it will be necessary for the assignor ° * * to equip the well with casing, pumps, tanks, pipe lines, etc., and therefore it will be necessary for each owner, as their interests may show before the assignment, to contribute their pro rata part in this additional expense of equipping and marketing the production from this well.
The assignee herein, as a participant in the drilling in the proposed oil, gas, or mineral well, will have to contribute his or her pro rata part of this additional expense of putting the producing well on production. The assignee will be notified by registered mail his or her estimated amount of the additional expense; that the assignee within the ten (10) days, will forward to the assignor, or his representative the amount due from the assignee or within the said period, notify the assignor or his representative that he or she, the assignee, does not desire to continue further as an associate in this adventure and will forfeit and surrender and assign his or her interest to the assignor for the purpose of reassignment to some individual, partnership or corporation, who will assume the obligation of the pro rata expense of equipping and marketing the production from said well.
In the event that additional wells should be drilled, the assignor will notify the assignee of his intention to drill such a well or wells by registered mail. The assignee will forward to the assignor his or her pro rata share of the estimated cost in drilling such well within ten (10) days after such notification or surrender his or her interest in said well and any further drilling operation or producing of oil in said acreage.” 23 Ill. App. 2d 446, 448-50.

The court noted that to determine whether a particular instrument is a security within the meaning of the statute it must look to the substance of the transaction and the relationship between the parties. These elements control over the form of the instrument.

The court found significant the provision that if the assignee chooses not to pay the additional expense involved of putting the well into production he is to assign the interest to the assignor for reassignment. That provision indicated that the parties considered the subject of the instruments to be interests, not merely agreements that the plaintiffs were to share in the costs of drilling wells.

The court also pointed out, that unlike the situation in Hammer, where all the money paid was only for drilling costs, the consideration paid was for both the interest and the drilling costs. There was no showing that all of the money paid by plaintiffs was used for drilling costs.

Reviewing the relationship between the parties, the court found that the defendant held leases and financed the exploitation of the leasehold by obtaining drilling costs from plaintiffs in exchange for a working interest. They were not joint venturers; plaintiffs had no control over the operation and there were no provisions that they would share any further losses beyond their initial investment. The court concluded that plaintiffs had acquired securities within the meaning of the statute.

In the case before us, an agreement states that “In consideration of a payment of $_* * * Gulf States hereby assigns to Investor an undivided 2% working interest in the Lease.” In the next paragraph, however, the agreement states, “Gulf States hereby accepts the $_ paid by Investor, which 660 Gulf States accepts as payment for the drilling of the Well * •

The two provisions suggest different intents. The former indicates a working interest is conveyed, while the latter indicates the entire consideration is payment for the drilling of the well. The ambiguity permits the examination of extrinsic evidence. Hammer v. Sanders (1956), 8 Ill. 2d 414, 420-21.

Richard Kallenbach testified that the Gulf States’ representative told him, “He was selling an interest in oil wells or gas wells, whatever the case might be.” David Rond, trust officer at the Illinois National Bank & Trust Company, testified, “In each case, we remitted funds to Gulf States Energy Corporation for 2% interests in oil well drilling, partnership-type things.” Royal Russell was questioned by plaintiffs’ counsel about the nature of the agreements, and the following colloquy resulted:

“Q And were these agreements or these investments fractional and divided interests in gas and oil leases?
A Yes.
Q And were those leases all located in Texas?
A Yes. Not leases, # * * they’re non-working. They’re working interests, non-participating working leases. They’re non-producing, working interests in wells. They’re not leases.
Q Okay. Gulf States Energy Corporation would have owned the leases?
A Yes.
Q And Gulf States then would have sold fractional interests in the production of these wells?
# » #
A * * "They would sell fractional interests. Non-producing, working interests, is the proper term.
Q Okay.
A In the wells.
Q Okay. But the object of the contract is an undivided interest in an oil and gas well, at least as far as the ordinary investor would understand?
A Right.”

The understanding of the parties, then, was not that the investors were simply paying for a portion of production costs but that in each agreement they were purchasing an interest in a well. There is no indication that the parties considered the payments solely as contributions to the cost of production. As in Meihsner v. Runyon each transaction represented a sale of an interest. We conclude that the transactions were sales for securities within the meaning of the statute.

We also conclude, however, that only those transactions of which there is evidence of corresponding agreements stating that payments represent purchases of interests may be rescinded. In his complaint Kallenbach only refers to purchases of working interests in Gail #5, Gail #6, and Gail #7. These agreements were attached to the complaint. These agreements were also tendered to the circuit court clerk as required by section 13 of the Security Act (Ill. Rev. Stat. 1975, ch. 121%, par. 137.13(A)). Kallenbach testified that he paid $3,870 regarding Gail #5 re-entry and $1,000 regarding Gail #6 re-entry. He also testified he spent $2,880 regarding Gail #8 re-entry and an additional $720 on Gail #7. There is no evidence that these payments were made for the purchase of working interests in oil or gas wells. Kallenbach testified that he could not recall whether additional contracts or agreements were issued in exchange for payments on the re-entries. There being no evidence that the payments on the re-entries and the $720 additional payment on Gail #7 represented the purchase of working interests, Kallenbach was not entitled to return of these payments.

Regarding First National Bank and Trust Company we find that transactions by the bank on behalf of Robert Sullivan’s trust with respect to Gail #4, Gail #5 re-entry and Gail #8 are evidenced by agreements. Payments made as consideration for these agreements are clearly recoverable under the Securities Act. The bank’s transaction on behalf of Dorothy Sullivan’s trust with respect to Gail #5, Gail #6 re-entry and Gail #7 are also evidenced by agreements, and these are recoverable. With respect to the other transactions regarding Gail #6, Gail #7, an additional payment on Gail #7, and Gail #5 on behalf of Robert Sullivan’s trust and regarding Gail #4, Gail #6 and an additional payment on Gail #7 on behalf of Dorothy Sullivan’s trust the evidence does not show that the payments made were consideration for fractional interests in oil or gas wells. No agreements regarding these payments were admitted into evidence, and the testimony regarding these is inconclusive. There being no evidence that the bank purchased securities by these payments, it cannot be reimbursed for them.

Gulf States also contends that, even if we are correct in concluding that certain of the transactions were sales of securities, they were not sales within Illinois and the Illinois Securities Act is therefore not applicable.

The definition of sale includes “every disposition, or attempt to dispose, of a security for value. [It] shall also include * * * an attempt or an offer to sell * * (Ill. Rev. Stat. 1973, ch. 121%, par. 137.2 — 5). In Silverman v. Chicago Ramada Inn, Inc. (1965), 63 Ill. App. 2d 96, 101, 211 N.E.2d 596, the court discussed the definition of sale within the Securities Act:

“This definition of a sale is in itself liberal. Its obvious purpose is to exclude nothing that could possibly be regarded as a sale. Under this broad and unambiguous definition every step toward the completion of a sale would be a sale. * * * [T]he legislative intent [is] to protect the buyer at every stage of the proceedings. * * * If a seller solicited an offer to buy an unregistered security it would be a sale under the terms of the Act and the seller would be in violation of the Act.”

We conclude that offering securities by phone to persons in Illinois, and sending proposed agreements to them in Illinois were sales in Illinois within the meaning of the Securities Act. See Green v. Weis, Voisin, Cannon, Inc. (7th Cir. 1973), 479 F.2d 462, 465.

Gulf States next contends that they were not subject to the Illinois Securities Act (Ill. Rev. Stat. 1973, ch. 121½, par. 137.1 etseq.). They argue that both the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 1 — 101 et seq.) and conflict-of-law rules require the application of Texas law.

Gulf States argues that both sections 1 — 105(1) and 8 — 106 of the Code apply. (Ill. Rev. Stat. 1973, ch. 26, pars. 1 — 105(1), 8 — 106.) Section 1 — 105(1), it argues, permits the parties to choose which State’s law is applicable. In addition, it argues, section 8 — 106 provides that the law of the State of the seller applies.

Although section 1 — 105(1) provides that parties may agree on which State’s laws shall govern their rights and duties, that provision is qualified with the proviso “except as provided hereafter in this Section.” Section 1 — 105(2) provides the applicable qualifications:

“(2) Where one of the following provisions of this Act specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified:
# # #
Applicability of the Article on Investment Securities. * * Ill. Rev. Stat. 1973, ch. 26, par. 1 — 105(2).

Turning to Section 8 — 106, we find that it would require Texas law to apply:

“The validity of a security and the rights and duties of the issuer with respect to registration of transfer are governed by the law (including the conflict of laws rules) of the jurisdiction of organization of the issuer.” (Ill. Rev. Stat. 1973, ch. 26, par. 8 — 106.)

Thus, even though the parties could not employ section 1 — 105(1) to choose which laws were to apply, section 8 — 106 requires the matter to be governed by the law of the seller, which the parties had chosen in the agreements anyway. Such would be the case, that is, if additional statutes were not applicable. The legislature recognized, however, that provisions in article 8 and the Securities Act may conflict, and provided for such eventuality. Section 8 — 407 of the Commercial Code recognizes that the Illinois Securities Act in addition to article 8 governs transactions and securities and prevails over article 8 in event of a conflict.

“A transaction, although subject to this Article, is also subject to ‘An Act relating to the transfer of securities to and by fiduciaries and to repeal a part of an Act therein named’, approved May 23, 1957, as now or as hereafter amended, and in the case of conflict between the provisions of this Article and such Act, the provisions of such Act control. Failure to comply with such Act has only the effect which is specified therein.” (Ill. Rev. Stat. 1973, ch. 26, par. 8-407.)

Therefore, the registration of the Illinois Securities Act prevails and defendant was required to register the securities in Illinois. Ill. Rev. Stat. 1973, ch. 121½, par. 137.5.

Finally, Gulf States argues that notice and tender requirements of the Securities Act were not complied with by plaintiffs and that therefore they may not recover their investments on the transactions for which they failed to give proper notice and tender. The Securities Act requires that when a purchaser of a security elects to rescind the purchase because the seller in some way violated the Securities Act the purchaser must tender to the seller or into court the securities sold (Ill. Rev. Stat. 1975, ch. 12Bz, par. 137.13(A)) and must give notice of the election to rescind to the seller within six months of learning that the sale is voidable (Ill. Rev. Stat. 1975, ch. 12Bá, par. 137.13(B)).

Regarding tender of the agreements, we have previously noted that Kallenbach only tendered to the court agreements regarding Gail #5; Gail #6 and Gail #7. Regarding the Illinois National Bank & Trust Co., we find that it tendered agreements for Gail #4, Gail #5 re-entry and Gail #8 in connection with Robert Sullivan’s trust and Gail #5, Gail #6 re-entry and Gail #7 with respect to Dorothy Sullivan’s trust.

As for notice, Royal Russell, president of Gulf States, testified that the corporation did receive notice of each plaintiff’s election to rescind.

Conclusion

We conclude that the circuit court did not have jurisdiction over the person of Royal Russell, and that judgment against him must be reversed.

We conclude that against Gulf States plaintiff Richard Kallenbach is entitled to rescission of the purchase price of his securities purchased from the corporation, that being $2,710 for Gail #5, $2,710 for Gail #6, and $3,870 for Gail #7, plus 5% interest less the earnings on these interests and plus reasonable attorney fees. Plaintiff Illinois National Bank & Trust Co. may recover from Gulf States the purchase price of the securities purchased from it, that being $2,710 for Gail #4, $3,870 for Gail #5 re-entry and $4,845 for Gail #8 on behalf of Robert Sullivan’s trust, and $2,710 for Gail #5, $3,870 for Gail #6 re-entry, and $3,870 for Gail #7 on behalf of Dorothy Sullivan’s trust, plus 5% interest on these amounts, less the earnings on these interests arid plus reasonable attorney fees.

We remand to the circuit court in order that it may make findings of the earnings made on the securities so that the reimbursements made to plaintiffs may be reduced by these amounts.

Reversed in part, modified in part and remanded with instructions.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADA VIOLET ADAMS, Defendant-Appellant.
    Second District
    No. 80-389
    Opinion filed December 21, 1981.

      Mary Robinson and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Ada Violet Adams, was convicted of murder and sentenced to 25 years imprisonment. She appeals, contending (1) the prosecutor improperly referred to her post-arrest silence during cross-examination and in argument to the jury; (2) the trial court erred in the admission and exclusion of evidence; and (3) she lacked effective assistance of trial counsel.

The evidence adduced at trial disclosed that defendant and Glenn Marshall had been living together for about a year after meeting in a bar. On the evening of December 4,1979, they had gone separately to taverns in Oregon, in the first of which defendant told Marshall not to follow her around and complained of his treatment of her. She also allegedly commented she was “going to kill that son of a bitch.” They were later both in a second tavern, where Marshall mentioned they argued frequently and he was going to leave her. After Marshall left that tavern defendant allegedly again stated she was going to kill him.

Marshall returned home and at 11:02 p.m. telephoned his former wife, Betty Marshall, in Memphis, Tennessee. She testified that he told her in that conversation he wanted to come home to her and his children and referred to the possibility of his death. They were still on the telephone at 12:10 a.m. when Betty Marshall heard banging on his door and heard defendant asking him who he was talking to before Marshall’s telephone was hung up at 12:15 a.m. Telephone company records also disclosed at 12:16 a.m. defendant called the Ogle County Sheriff’s Department requesting officers be sent to her home in Oregon because she had stabbed a man. Officers arriving at the home where she lived with Marshall found him lying on the floor with four stab wounds. The officers checked defendant for weapons and told her to sit in a chair; they observed a bloody knife beneath another chair. They administered aid to Marshall who was subsequently pronounced dead on arrival at the hospital. When they then asked defendant what had happened, she responded, “he can’t be dead” several times, but did not reply to their inquiries concerning the stabbing. The officers telephoned the sheriff for instructions and were directed to take defendant into custody; she was then placed in a squad car and given the Miranda warnings. The officers drove defendant to the sheriff’s office, where at about 1 a.m. Sheriff Jerry Brooks advised her that Marshall was dead and that she was under arrest for murder; he again informed her of her Miranda rights. Defendant requested that her cigarettes, glasses and purse containing her identification be returned to her, but did not refer to the occurrence in her home. At about 2 a.m. Deputy Sheriff Melvin Messer again advised defendant of her rights and she gave him a statement in which she described a history of violence towards her by Marshall and said she had stabbed him in self-defense when he attacked her that night. Her statement was not offered in evidence by the prosecution in trial, and that portion in which she had related to the officers that she had stabbed Marshall in self-defense was suppressed by the trial court as self-serving on the State’s motion in limine.

Sheriff Brooks saw defendant again in the jail later that morning when she talked to him about the incident and told him that Marshall had struck her on prior occasions and that she had him arrested.

Defendant testified in trial and on direct examination stated that she had been living with Marshall since 1978 and he had beaten her on several occasions during that period. She stated that on the night in question she had stabbed him when he swore at her and came at her with his hands on her throat, believing he was going to kill her. On cross-examination of defendant, the State’s Attorney inquired whether the first time she had mentioned self-defense to anyone was after she was informed that Marshall was dead and she was arrested for murder. She agreed that was true and that she had not mentioned it to the telephone operator. Sheriff Brooks was called in rebuttal by the State and testified that on December 5, 1979, at 12:52 a.m. defendant was brought into his office, advised that Marshall was dead and arrested for murder. He further testified that the first time defendant talked to him about details of the incident was after 10:35 a.m. that day. In closing argument the State’s Attorney commented that at the scene when the officers asked defendant what had happened she responded only with a request for her glasses and cigarettes; that when she was informed Marshall was dead and she was arrested for his murder she again responded with a request for her glasses and cigarettes and would not speak with the sheriff. The State’s Attorney also noted in argument to the jury “nothing is stated by her until 10 o’clock the next morning when she comes back with the statement, ‘I had to do it. I had to do it in self defense.’ Don’t you think that if you were attacked and you were put in a situation like that, that the first thing you would do would be to thank God that you were here, he grabbed me, he was at my throat. That’s just not true and it wasn’t said 6 * e.”

We consider first whether defendant was denied due process by the use by the State’s Attorney of her post-arrest silence to impeach her exculpatory self-defense testimony at trial. Defendant failed to object to either the cross-examination or argument of which she now complains, although the issue was raised in her supplemental post-trial motion. We believe, however, that fundamental fairness requires that the waiver rule not be applied and that the matter be considered as plain error. People v. Green (1979), 74 Ill. 2d 444, 449-50, 386 N.E.2d 272, 275.

In Doyle v. Ohio (1976), 426 U.S. 610, 617, 49 L. Ed. 2d 91, 97, 96 S. Ct. 2240, 2244, the United States Supreme Court noted that every post-arrest silence is insolubly ambiguous because of the requirement that the State must advise a person arrested of his right to remain silent, and it is a violation of due process to either elicit testimony that a defendant remained silent after arrest or to impeach a defendant who offers an exculpatory story at trial with his failure to offer that story to police following his arrest. (People v. Malkiewicz (1980), 86 Ill. App. 3d 417, 421, 408 N.E.2d 47, 50; People v. Foster (1980), 81 Ill. App. 3d 915, 926, 401 N.E.2d 1221, 1229.) There are circumstances, however, in which the State may permissibly comment on post-arrest silence; if the defendant at trial falsely claims that he also gave his exculpatory statement to the police when arrested he may be impeached with evidence that he did not do so. (People v. Rehbein (1978), 74 Ill. 2d 435, 441-42, 386 N.E.2d 39, 42, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843.) Also, if defendant’s exculpatory testimony at trial is manifestly inconsistent with statements he made after his arrest, comment or evidence about his failure to give the same statement at that time will not violate the Doyle rule. People v. Beller (1979), 74 Ill. 2d 514, 522-23, 386 N.E.2d 857, 860.

The defendant argues the Doyle rule was violated in her cross-examination by the State, by the testimony of Sheriff Brooks in rebuttal and in the State’s Attorney’s argument to the jury.

We note first that Doyle becomes operative only after arrest and reference to a defendant’s silence prior to arrest for impeachment does not violate the fifth or fourteenth amendments. (Jenkins v. Anderson (1980), 447 U.S. 231, 239, 65 L. Ed. 2d 86, 95, 100 S. Ct. 2124, 2129; People v. Williams (1978), 65 Ill. App. 3d 1, 5, 382 N.E.2d 292, 294-95.) Although defendant was not formally arrested until the sheriff did so at his office at about 1 a.m., it is apparent Doyle became operative when she was restrained at the scene and placed in the squad car and advised of her Miranda rights. (See People v. Creach (1980), 79 Ill. 2d 96, 100-01, 402 N.E.2d 228, 230, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; People v. Wipfler (1977), 68 Ill. 2d 158, 166, 368 N.E.2d 870, 873; People v. Jacobs (1979), 67 Ill. App. 3d 447, 449, 385 N.E.2d 137, 139-40, appeal denied (1979), 75 Ill. 2d 592.) In cross-examination the State’s Attorney inquired whether the first time defendant mentioned self-defense was after she was arrested for murder. As this questioning did not refer to defendant’s post-arrest silence and implied only that she did not give her exculpatory story before her arrest, it was a proper inquiry under Doyle.

The rebuttal testimony of Sheriff Brooks and the argument of the State’s Attorney, however, clearly combine to violate the Doyle doctrine. The sheriff testified that he arrested defendant at 12:52 a.m. in his office and the first time she talked to him about the details of the matter was after 10:35 a.m. that morning. The State’s Attorney commented at some length in argument that after her arrest defendant spoke only of wanting her glasses and cigarettes and that she stated nothing about self-defense until 10 o’clock in the morning. (This argument is difficult to understand in view of the statement given by defendant to deputy sheriffs at 2 a.m. in which she first described an attack upon her by Marshall and stated she stabbed him in the belief he was going to kill her; a statement substantially the same as her testimony in trial, but suppressed on motion of the State as self-serving.)

There was no inconsistency between defendant’s trial testimony and her exculpatory statements to the investigating officers, nor did she claim to have given any exculpatory statements immediately following her arrest. As the exceptions to the Doyle rule are not applicable to this case, it was error for the State in argument to question her silence after arrest. By that means the State suggested to the jury that if defendant were innocent she would have so informed the officers immediately after her arrest, and it gave the jurors a basis from which they might conclude that her defense in trial was fabricated. Nor can this error be considered as harmless beyond a reasonable doubt (People v. Knippenberg (1977), 66 Ill. 2d 276, 287, 362 N.E.2d 681, 685-86), as it reached the crux of the defense offered in this case, i.e., whether defendant was credible and justified in stabbing and killing Glenn Marshall or whether the degree of the offense should have been reduced. See People v. Malkiewicz (1980), 86 Ill. App. 3d. 417, 421, 408 N.E.2d 47, 49-50.

As this case must be reversed and remanded for a new trial, we will consider other issues raised by defendant which may arise on retrial.

Defendant called a psychiatrist who had examined her and who testified that she was sane. Defense counsel then sought to further elicit an opinion from the doctor as to why the stabbing had occurred and inquired whether he had reached any conclusion with regard to defendant’s personality based upon interviews with her. The State’s objection that it was not relevant was sustained, and she asserts she was thus precluded from offering expert testimony relating to the personality traits of abused women in support of her claim of self-defense. See Ibn-Tamas v. United States (D.C. App. 1979), 407 A.2d 626; compare People v. White (1980), 90 Ill. App. 3d 1067, 1072, 414 N.E.2d 196, 200.

Defendant, however, failed to make an offer of proof in the trial court so as to preserve for review her claim of error by exclusion of this evidence. (See People v. Christen (1980), 82 Ill. App. 3d 192, 196, 402 N.E.2d 373, 376; People v. Limas (1977), 45 Ill. App. 3d 643, 649, 359 N.E.2d 1194, 1199, appeal denied (1977), 66 Ill. 2d 627.) There was nothing presented to the trial court to assist it in initially ascertaining the admissibility of the evidence sought to be introduced, and it cannot be determined from the trial record that the “personality” of defendant was material and relevant to her defense so as to excuse tender of an offer of proof. (See People v. March (1981), 95 Ill. App. 3d 46, 56, 419 N.E.2d 1212, 1219; People v. White (1980), 90 Ill. App. 3d 1067, 1072, 414 N.E.2d 196, 200; People v. Johnson (1977), 47 Ill. App. 3d 362, 372, 362 N.E.2d 701, 709; People v. Moore (1975), 27 Ill. App. 3d 337, 344, 326 N.E.2d 420, 425, appeal denied (1975), 60 Ill. 2d 600.) We conclude defendant has not preserved this issue for review.

Defendant also contends the trial court erred in excluding evidence of the level of alcohol in decedent’s body asserting it was relevant to her claim of self-defense. She had testified that Marshall had made prior attacks upon her when he had been drinking and offered the testimony of Dr. John Spikes, a toxicologist, in support of her defense. In this instance defendant did make an offer of proof of the excluded testimony by which Dr. Spikes would have stated the alcohol content of decedent’s blood was •232> and that he was under the influence of alcohol at the time of his death.

The trial court found that defendant offered an insufficient foundation for the witness’ testimony and also had not shown its relevancy. We agree the foundation was inadequate. This witness had not personally conducted the tests in question, nor was he asked whether he was qualified by training or experience to give the opinions sought from him by defendant. The witness did describe an impressive educational background and his position as chief toxicologist of the Division of Laboratories of the Department of Health. He described his duties, however, only as the direction of the performance of analytical services for agencies submitting samples to the laboratory. Defendant failed to ask Dr. Spikes to provide any direct basis for his qualifications to express the opinions sought from him. (People v. Driver (1978), 62 Ill. App. 3d 847, 853, 379 N.E.2d 840, 845.) On objection, the trial court did not err in excluding the testimony on the grounds of insufficient foundation.

We find the court erred, however, when it determined that evidence of decedent’s intoxication would not be relevant in this case. Relevancy is established if the offered evidence tends to make a proposition at issue more or less probable. (People v. Kavinsky (1981), 98 Ill. App. 3d 579, 584, 424 N.E.2d 340, 344; People v. Yuknis (1979), 79 Ill. App. 3d 243, 248, 398 N.E.2d 258, 262.) The relevance of evidence of a possible defense is a matter for the sound discretion of the trial court. (People v. Gardner (1977), 47 Ill. App. 3d 529, 537-38, 362 N.E.2d 14, 20.) Defendant had presented evidence that on numerous prior occasions Marshall had beaten her when he had been drinking. The State had also presented evidence through witnesses who had observed Marshall in the taverns that night that he had not been drinking and so argued to the jury. The excluded testimony, if offered with the proper foundation, would have established that Marshall was intoxicated and may have assisted the jury in its evaluation of the evidence presented in this case. See People v. Rice (1976), 40 Ill. App. 3d 667, 671, 352 N.E.2d 452, 455-56.

Defendant has also contended that the trial court erroneously permitted Betty Marshall to testify regarding her telephone conversation with decedent shortly before his death. She argues it was hearsay and was improperly used by the State to establish motive on the part of the defendant. Betty Marshall testified that decedent called her to say he wanted to leave defendant and return to Betty. The trial judge admitted the conversation for the limited purpose of showing decedent’s intent; however, in argument to the jury the State’s Attorney urged that it was evidence of defendant’s motive in killing Marshall.

Out-of-court telephone conversations can be competent evidence to show intent or state of mind of decedent as an exception to the hearsay rule. (People v. Fletcher (1978), 59 Ill. App. 3d 310, 322, 375 N.E.2d 1333, 1340, appeal denied(1978), 71 Ill. 2d 611; People v. Reddock (1973), 13 Ill. App. 3d 296, 309, 300 N.E.2d 31, 38, appeal denied (1973), 54 Ill. 2d 598.) The identity of the declarant, his unavailability at trial and the likelihood of the truth of the hearsay statement must be shown. People v. Goodman (1979), 77 Ill. App. 3d 569, 574, 396 N.E.2d 274, 278; People v. Schwartz (1975), 34 Ill. App. 3d 1043, 1044, 340 N.E.2d 583, 584; People v. Reddock.

Betty Marshall testified she recognized her former husband’s voice and it was he with whom she spoke on the telephone. It does not appear likely he would so inform her of plans to return to her if he did not then intend to do so nor are reasons apparent why Betty Marshall would misrepresent that conversation in these circumstances. (See People v. Mireles (1979), 79 Ill. App. 3d 173, 196-97, 398 N.E.2d 150, 166, cert. denied (1980), 449 U.S. 860, 66 L. Ed. 2d 76, 101 S. Ct. 163.) Earlier in the evening in a tavern decedent stated he was going to “get shed of [defendant]” or “ship her” and the witnesses who so testified stated defendant was nearby and could hear the remarks. Shortly before the telephone call was terminated by disconnection in the decedent’s home Betty Marshall heard defendant ask decedent who he was talking to and defendant inquired into the telephone: “Who is this? Is this you?”

We conclude that the trial court did not err in admitting the conversation in evidence for the purpose of showing decedent’s state of mind immediately prior to his death. Nor is the State precluded from raising the inference of decedent’s motive in argument in view of the further evidence defendant was aware of decedent’s plans to leave her. Compare People v. Newbury (1972), 53 Ill. 2d 228, 240, 290 N.E.2d 592, 598-99; People v. Gougas (1951), 410 Ill. 235, 238, 102 N.E.2d 152, 154; People v. Fletcher (1978), 59 Ill. App. 3d 310, 322, 375 N.E.2d 1333, 1340.

Defendant has also asserted as grounds for reversal of her conviction that she lacked effective assistance of counsel at trial. She notes that her counsel, who is the public defender of Ogle County, admitted his inadequacy in the post-trial motion and in argument to the jury. Defendant further asserts that inadequacy was further demonstrated by counsel’s conduct of the trial. As we have reversed on other grounds we need not consider this argument. On retrial, however, counsel other than her former attorney must represent defendant. See People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157; People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178.

Accordingly, the judgment of the circuit court of Ogle County is reversed and this cause remanded for a new trial.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEWIS A. JORDAN, Defendant-Appellant.
    Fourth District
    No. 17237
    Opinion filed December 30, 1981.
    Rehearing denied January 28, 1982.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Aggravated battery by an 18-year-old man upon a 66-year-old woman.

Bench trial.

Guilty.

Two years.

We affirm.

On appeal, Jordan argues that he was not proved guilty of aggravated battery beyond a reasonable doubt because the State failed to prove that he knew his victim was 60 years of age or over, and because the evidence did not indicate the victim had received great bodily harm. Defendant also contends that he is entitled to 18 days’ additional credit for time served in jail prior to his conviction on this offense.

The facts are not in dispute. On December 7,1980, 66-year-old Eloise Lord was at the Vaneo Gas Station in Decatur. She had gone into the gas station for a “bottle of pop” while her daughter-in-law purchased gasoline. Jordan was standing at the counter when she went to pay for the soda, and he was “talking filthy” to his friends there. Her daughter-in-law had joined her, and the two stood for approximately 20 minutes, waiting to complete the purchase. Finally, Mrs. Lord said, “Let’s put the pop down, we don’t have to listen to this.” Both women testified that Jordan turned toward Mrs. Lord, used some “dirty” language, and shoved her. She got up, took some steps toward Jordan,' and was shoved back down again. Mrs. Randall — the daughter-in-law — recalled that, after seeing this, she told Jordan to stop, and Jordan kicked her in the leg. After kicking the daughter-in-law, Jordan hit Mrs. Lord in the stomach with his fist as she rose, and hit her in the face as she started out the front door. Two other witnesses corroborated the testimony that Jordan pushed Mrs. Lord down and hit her with his fist.

The court made a finding of guilt and later conducted a sentencing hearing. The presentence report included the information, that Jordan had spent 10 hours in custody immediately after his arrest, had then been released with a notice to appear, had been rearrested on February 23, 1981, when he failed to appear, and had been incarcerated from then until March 12, 1981. At the close of the hearing, Jordan was sentenced to 2 years in the Department of Corrections, with credit for 1 day served being given.

I

Defendant first argues that he was not proved guilty of aggravated battery beyond a reasonable doubt because the State failed to prove he had knowledge of Mrs. Lord’s age before he battered her. The defendant was charged with aggravated battery under section 12 — 4(b) (10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(10)), for pushing Mrs. Lord, a 66-year-old woman, to the ground and striking her in the face with his fist. He challenged the constitutionality of that section in a pretrial motion, asserting that the statúte involved an irrational classification and failed to require knowledge by the defendant that the battery victim was 60 years of age or over. The trial court rejected that argument and found a rational basis for the classification because the legislature intended to protect the elderly by enacting section 12 — 4(b) (10) and that prior knowledge by the defendant of the victim’s age was not an element of the offense of aggravated battery under that section.

Section 12 — 4(b) describes that conduct which will make the offense of simple battery an aggravated battery and clearly enunciates that persons engaged in certain work activities are to be protected. Those sections protecting the various occupations also require that a defendant be aware that his victim is a member of a protected class before he can be convicted of aggravated battery, i.e., “knows the individual harmed to be” a member of a protected class. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b) (3) through (7), (9).) These sections specifically require the State to prove that the defendant knowingly inflicted bodily harm upon his victim and that he knew the protected status of his victim at the time of the attack. See People v. Litch (1972), 4 Ill. App. 3d 788, 281 N.E.2d 745.

Sections 12 — 4(b) (8) and (10), however, do not require knowledge by the defendant that his victim is a member of a protected class. In section 12 — 4(b)(8), aggravated battery is committed if the battery occurs on or about a public way, public property, or a public place of accommodation or amusement, and in section 12 — 4(b) (10), aggravated battery is committed if the victim battered is 60 years of age or older. The statutory language defining these offenses omits the phrase “knows the individual harmed to be” which appears in those sections protecting classes of persons because of their occupation. The legislative history of section 12 — 4(b) (10) clearly shows that prior knowledge by the defendant of his victim’s age was not intended to be an element of the offense. The Illinois House floor debates concerning the passage of Senate Bill 198, the precursor of section 12 — 4(b)(10), reflect that an amendment requiring section 12 — 4(b) (10) include the language “knows the individual harmed to be” was presented and rejected. (See House Floor Debates, 81st General Assembly, 1979-80, microfiche No. 67 — 73.) At the time of the vote on the bill, discussion on the floor indicated that section 12 — 4(b) (10) was to protect senior citizens who were defenseless and often the prey of muggers, and that the person who sought to attack another did so at the risk that his victim would be 60 years old. In debate, the legislators compared the lack of scienter in section 12 — 4(b) (10) to other criminal statutes which do not require the State to prove that the defendant was aware of his victim’s age, e.g., section 11 — 4 (indecent liberties with a child) and section 11 — 5 (contributing to the sexual delinquency of a child). To so require — the legislators reasoned — would be so difficult that the purpose of the act would be nullified, and they recognized that a person’s age is not so readily ascertainable as is the status of a person who is a police officer or a fireman. Therefore, it is inescapable that the legislature did not intend section 12 — 4(b) (10) to require the State to prove as an element of the offense that the defendant had prior knowledge of the victim’s age.

II

Assuming that a conviction under section 12 — 4(b) (10) cannot be sustained, defendant was nevertheless proved guilty of the subject crime under section 12 — 4(a) for inflicting great bodily harm upon the victim, even though he was charged under section 12 — 4(b) (10). Any variance between the crime charged and that proved is not fatal because the defendant was not misled in his defense or exposed to double jeopardy. (People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136; People v. Hadley (1974), 20 Ill. App. 3d 1072, 314 N.E.2d 3.) Testimony at trial depicted injuries greater than those normally attendant with simple battery. Defendant pushed the 66-year-old victim into some shelves in the grocery store at the gas station, causing her to fall to the floor. She tried to regain her footing twice, but the defendant again shoved her to the floor. When she did regain her footing, she was struck in the stomach and on the jaw by the defendant’s fist, causing her to fall into a cake rack and onto the floor for a third time. Before the defendant was finally subdued, Mrs. Lord had been knocked to the ground four times. She had multiple contusions on her back, a sore jaw, a swollen face, and bruised arms and ribs. Mrs. Lord received emergency treatment at the hospital and was bedridden for three weeks as a result of the attacks. And no evidence was presented to contradict these facts. (Her hospital, doctor, and medicinal bills totaled $222.39.)

Since the essence of the offense of aggravated battery committed by the defendant against Mrs. Lord was contained in the information, he cannot claim that he was surprised when the court ruled that he was guilty of aggravated battery because he had inflicted great bodily harm upon her. He clearly did not make an objection to the ruling or finding.

Ill

Certainly, the defendant’s contention that he was not proved guilty of aggravated battery beyond a reasonable doubt for inflicting great bodily harm upon Mrs. Lord is devoid of merit. A finding of great bodily harm is not dependent upon hospitalization of the victim or even that the victim received medical attention. (People v. Carmack (1977), 50 Ill. App. 3d 983, 366 N.E.2d 103; People v. Newton (1972), 7 Ill. App. 3d 445, 287 N.E.2d 485.) Nor must the victim suffer permanent disability or disfigurement. (People v. Smith (1972), 6 Ill. App. 3d 259, 285 N.E.2d 460.) The question of whether the injuries rise to the level of great bodily harm is a question of fact for the trier of fact. (People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853.) Under all the circumstances here, the record fully supports the finding of guilt beyond a reasonable doubt.

IV

Finally, defendant argues that he is entitled to 18 additional days’ credit for time served in jail prior to his conviction in addition to the 1 day’s credit received. The presentence report states that the defendant was arrested and jailed on February 23, 1981, for failure to. make a court appearance and was not released until March 12, 1981. But the report of proceedings and common law record in this case make no mention of the forfeiture of the defendant’s bond or issuance of an arrest warrant. Nor was there the issuance of a new bond to replace the bond supposedly forfeited which allowed the defendant’s release on March 12, 1981. (His bench trial began March 30,1981.) It seems apparent that the defendant’s subsequent arrest and temporary jailing must have been for some reason other than this offense. At no time did the defendant mention spending over two weeks in jail.

No error.

Affirmed.

GREEN, P. J., and LONDRIGAN, J., concur.


author: PRESIDING JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY B. DENBY, Defendant-Appellant.
    Fifth District
    No. 80-284
    Opinion filed November 17, 1981.
    Rehearing denied December 21, 1981.

      S. Russell Meyer, of Wyss, Meyer and Stillwell, of Alton, and Joña Goldschmidt, of Carbondale, for appellant.
    Donald Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Billy B. Denby, was charged by amended information with murder, armed violence, and involuntary manslaughter. All of the charges involved the death of Edward Pence, Jr. Following a jury trial in the circuit court of Madison County, defendant was convicted of armed violence, found not guilty of involuntary manslaughter, and a mistrial was declared as to the murder count due to the jury’s inability to reach a verdict. Defendant was sentenced to a term of imprisonment of five years. The following issues are raised by defendant’s appeal: (1) whether defendant has waived all issues by failing to file a written post-trial motion; (2) whether the armed violence statute is unconstitutionally vague; (3) whether the verdicts were consistent; (4) whether defendant’s motion to suppress his statements was properly denied; (5) whether defendant was proved guilty beyond a reasonable doubt; (6) whether the trial court improperly restricted defense counsel’s cross-examination of a State witness; and (7) whether the trial court erred in excluding certain statements made by the decedent. We affirm.

Prior to trial, defendant filed a motion to suppress certain statements made while in the custody of the Granite City police. After a hearing, wherein the trial court heard the testimony of Detectives David Ruebhausen and Jerry Wilson, the motion was denied.

At the trial, James Lloyd, the chief of police in Roxana, Illinois, testified that on October 3,1979, at approximately 9 a.m., the defendant with whom he was socially acquainted, entered the police station and stated that he “had to kill a man last night” at his house in Granite City. Chief Lloyd drove defendant to the Granite City police but did not discuss the killing. However, at one point in the conversation, defendant asked Chief Lloyd if he had “ever been backed up against the wall” and suggested that was what happened regarding the killing.

Kenneth Brueggeman, the defendant’s brother-in-law, stated that at about 8:30 a.m. on October 3, 1979, the defendant visited his house and informed him that he thought he had killed a man the night before and mentioned something about being attacked.

Donna Landcaster, a barmaid at Ken’s Lounge in Granite City, testified that Mr. Pence had been at her place of employment between 5:30 and 6:30 p.m. on October 2,1979. During this time she observed him have one drink and stated he did not appear intoxicated. She never heard Mr. Pence mention the defendant.

Claude L. Robertson, defendant’s neighbor, stated that while returning from work at about midnight, he noticed a strange car parked near defendant’s house. It was established through other testimony that this car belonged to Mr. Pence’s daughter and that Mr. Pence drove it occasionally.

Lieutenant Gerald Pinkerton of the Granite City police testified that on October 3,1979, he was dispatched to the defendant’s house, where he observed the deceased’s body lying on the kitchen floor. He said that there was a considerable amount of blood and that it was his opinion, based upon his experiences with head injuries, that the amount of blood he saw was not less than one would expect.

Detective Ruebhausen testified as follows. On October 3, 1979, he took defendant into custody, read him his Miranda rights, and participated in the investigation of the defendant’s house. He observed a pool of blood about five to six inches in diameter under the deceased’s head, a light splattering of blood on the floor and the wall, and shattered glass, apparently from a lamp, lying about and under the deceased’s body. He saw an open bottle of whiskey and detected an odor of alcohol. He stated that a baseball bat spotted with blood was found in the bedroom. Detective Jerry Wilson corroborated some of the details of this testimony.

Dennis Aubuchon, a forensic serologist, testified that the blood on the baseball bat matched the decedent’s blood type. On cross-examination he stated that no blood was found on the defendant’s clothes.

Detective Jerry Wilson, recalled by the State, testified that at approximately 11 a.m. on October 3,1979, he interviewed the defendant. Wilson stated that defendant gave him the following account of the events. He related that Mr. Pence arrived at defendant’s house sometime after 6 p.m. the previous evening with a bottle of whiskey and that Mr. Pence asked defendant to play some cards but defendant declined. About 30 minutes after Mr. Pence’s arrival, and for some reason which defendant could not remember, an argument occurred and Mr. Pence took a swing at the defendant. Later, Mr. Pence again tried to strike the defendant, who, at that point, went into the bedroom and got a baseball bat. Defendant told Officer Wilson he had been drinking that day and could remember nothing after that.

On October 4, 1979, while they were returning from the hospital where defendant’s blood sample was taken pursuant to court order, Detective Wilson, after reminding defendant of his right to silence, asked the defendant what Mr. Pence did which caused defendant to react so violently. The defendant responded that Mr. Pence did nothing to provoke a violent reaction but that it was just something which had built up over time.

Dr. Steven Paul Nuernberger, a pathologist, testified that Mr. Pence’s death was caused by a trauma to the head inflicted by a blunt instrument, possibly a baseball bat. He also was of the opinion that, based on his observation of the scene, the location where the body was found was not where the decedent was killed because the amount of blood present was inconsistent with decedent’s head injuries. Dr. Nuernberger placed the time of death between 4 p.m. on October 2,1979, and 8 a.m. the next day.

Rose Murphy, another barmaid at Ken’s Lounge, testified for the defense that between 2:30 and 6 p.m. on October 2, 1979, she saw Mr. Pence at the bar. Mr. Pence appeared nervous and anxious and kept going to the phone booth. On cross-examination she stated that Mr. Pence did not appear either angry or intoxicated.

Donald D. Brueggeman, defendant’s nephew, testified that on October 3, 1979, he observed 14 or 15 beer cans in a wastebasket and a bottle of gin or vodka on the counter in the defendant’s house.

Defendant then called Officer Roger Hayes of the Granite City police and recalled Officers Ruebhausen and Wilson. Officers Hayes and Ruebhausen stated that they observed no evidence that the crime scene had been cleaned.

Jerry Lee Nelson, the owner of a bar in Pontoon Beach, Illinois, testified that between 4:30 and 6:30 p.m. on October 2, 1979, he saw defendant at his establishment and that he appeared to have been drinking.

The defendant, in his testimony, gave the following version of what transpired. On October 2, 1979, he spent much of the day drinking beer. Early that evening, Mr. Pence, a long-time acquaintance, stopped by the defendant’s house in Granite City with a bottle of whiskey and 7-Up. Defendant and Mr. Pence conversed and drank for a time. Then, Mr. Pence said that defendant owed him $100 from a card game which had taken place a year earlier. Defendant recalled Mr. Pence saying “if I don’t get that $100 from you pretty soon, I am going to take this knife out and skin you alive.” Subsequently, Mr. Pence took a swing at the defendant but missed. As the defendant walked to the bathroom, Mr. Pence started poking him in the chest and Mr. Pence and the defendant began shoving each other. The next thing he could remember was waking up in his apartment located in Wood River, Illinois. The defendant denied telling Detective Wilson that he went to the bedroom to get a baseball bat and explained that in response to one of Detective Wilson’s questions he said it was a good possibility that he went for the baseball bat. Defendant completely denied subsequently telling Detective Wilson that things had been building up between him and Mr. Pence. On cross-examination defendant said he never mentioned the shoving match between himself and Mr. Pence to either Chief Lloyd, Kenneth Brueggeman, or Detective Wilson. He stated that he was not “stumbling drunk” but had consumed 18 to 24 beers and some whiskey.

Dr. Nuernberger, recalled to the stand by the defense, reiterated his opinion that the amount of blood which he observed in the area where Mr. Pence’s body was found was inconsistent with the head injuries received. Dr. George E. Gantner, Jr., a professor of pathology at the St. Louis School of Medicine and chief medical examiner for the City of St. Louis, concurred with Dr. Nuernberger’s analysis.

Lovie Williams, the defendant’s housekeeper, described Mr. Pence as a mean and impolite man and described the defendant as quiet and courteous.

In rebuttal, the State recalled Officers Pinkerton, Ruebhausen, and Wilson. Detective Wilson testified that defendant never mentioned in his statement of October 3, 1979, that Mr. Pence had demanded $100 from him, nor did he mention any physical contact between himself and Mr. Pence.

On surrebuttal, the defendant recalled Officers Ruebhausen and Wilson. Detective Ruebhausen testified that he observed a bag of beer cans near defendant’s Wood River apartment. Detective Wilson reaffirmed his earlier testimony that while it was possible that he had questioned the defendant about the baseball bat, he specifically recalled that the defendant had said that he got a baseball bat during the argument with Mr. Pence.

The State contends that the defendant has waived all issues on appeal by failing to file a written post-trial motion. However, as defendant points out, an oral motion for a new trial which is not objected to by the prosecution preserves all errors of record. (People v. Whitehead (1966), 35 Ill. 2d 501, 221 N.E.2d 256.) Since the defendant made an oral motion for a new trial without objection by the State, we hold that all issues herein have not been waived although the trial court did insist that defendant file a written, rather than an oral, post-trial motion.

While the defendant may raise any issues which may appear of record, the rule remains that the defendant must raise the issue of the constitutionality of a statute in the trial court in order to preserve it for appeal. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353; People v. Guzzardo (1979), 69 Ill. App. 3d 252, 387 N.E.2d 896.) Here, the defendant for the first time on appeal attacks the armed violence statute (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 1 and 33A — 2) as being unconstitutionally vague. There was no development of defendant’s contentions regarding the constitutionality question in the trial court and no constitutional challenge to the armed violence statute was argued or ruled upon. Therefore, we hold that defendant has failed to preserve the issue regarding the constitutionality of the armed violence statute and we will not consider it.

The defendant next urges that the jury improperly rendered a verdict of guilty on the armed violence offense while at the same time finding him not guilty of involuntary manslaughter and failing to reach a verdict on the murder count. Defendant first suggests that no underlying felony has been proved. This contention is apparently premised on the notion that either murder or involuntary manslaughter constituted the underlying felony upon which the armed violence charge was predicated; however, this is not correct. The amended information charging armed violence specifically stated that the underlying felony upon which the charge was based was voluntary manslaughter. It alleged that defendant knowingly caused the death of the decedent but did so under an unreasonable belief that he was in danger of receiving bodily harm. Further, the jury was properly instructed in this regard. Thus, the jury made no finding that defendant was not guilty of voluntary manslaughter although it did find him innocent of involuntary manslaughter. Alternatively, the defendant contends that the jury’s finding that he acted knowingly but not recklessly under the involuntary manslaughter statute, coupled with the jury’s failure to reach a decision on the intent to kill necessary for the offense of murder, renders the verdicts logically inconsistent. However, it is well settled that logical consistency in verdicts is not required so long as the verdicts are not legally inconsistent. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) Here, the jury may well have agreed that defendant was guilty of armed violence as charged and been unable to agree upon a murder verdict. Therefore, we find no error in the jury’s verdicts.

Defendant next maintains that the trial court erred in denying his motion to suppress statements made to Detective Wilson after he had invoked his right to counsel. His contention is twofold. First, he contends that his right to remain silent was violated under the standard set forth in Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321. Second, he maintains that he did not waive his right to counsel.

The testimony of the arresting and interrogating officers was the only evidence presented at the hearing on defendant’s motion to suppress. Detective Ruebhausen testified that on October 3, 1979, he took defendant into custody at defendant’s house in Granite City and advised him of his Miranda rights. Approximately an hour later, Detective Wilson questioned the defendant. Detective Wilson again advised the defendant of his Miranda rights prior to questioning. The defendant indicated he understood these rights and elected to speak with Officer Wilson. Subsequently, an officer knocked on the door and advised the defendant that his attorney had arrived. Detective Wilson then asked defendant if he wished to sign the statement he had given. The defendant said that he did not wish to do so without consulting his attorney, and at that point all questioning ceased. Defendant was allowed to consult with his attorney and he did so from 30 minutes to an hour. Upon leaving, defendant’s attorney told Detective Wilson not to talk with his client.

The following evening, Detective Wilson took the defendant to a hospital to obtain a court ordered blood sample. While defendant was being returned to his cell, Detective Wilson asked defendant a question. He preceded the question by advising the defendant that he did not have to talk to him and reminding him that his attorney had told him he did not have to talk to the police. The defendant replied that he knew his rights. Detective Wilson then told the defendant that the police investigation indicated that he was not a violent man and he was curious what the victim said that caused him to act like he did. The defendant responded, “Nothing.” When Detective Wilson said he did not understand why defendant became so violent, the defendant replied that it was “just something that built up over a period of time.” It is these statements that the defendant sought to suppress.

There is no per se proscription of all questioning after a suspect has indicated a desire to remain silent, and the admissibility of subsequent statements depends on whether his right to cut off questioning was scrupulously honored. (Michigan v. Mosley; People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132.) Among the factors to consider in making this determination are the time interval between the suspect’s exercise of his right to remain silent and the reinterrogation and whether defendant was given a fresh set of Miranda warnings. People v. Pleasant.

In the case at bar, on October 3,1979, when defendant was informed that his attorney had arrived and defendant indicated that he wished to stop the interrogation, Detective Wilson ceased all questioning. Defendant then conferred with counsel. About 32 hours later, after advising defendant that he need not answer any questions, Detective Wilson again spoke with the defendant. The defendant indicated that he was aware of his constitutional rights but, nevertheless, responded to a number of questions. We believe, under the circumstances here presented, that defendant’s right to remain silent was scrupulously honored. Although it may be preferable procedure to read the defendant a complete set of Miranda warnings upon reinterrogation, it is not required. People v. Pleasant.

The Illinois Supreme Court has applied the Mosley rationale to cases involving the right to counsel and has held that the right to the presence of . an attorney during an interrogation may be subsequently waived despite an initial request for counsel. (People v. Aldridge (1980), 79 Ill. 2d 87, 402 N.E.2d 176; People v. Morgan (1977), 67 Ill. 2d 1, 364 N.E.2d 56.) In order to establish a valid waiver of the right to counsel, the State must prove a knowing and intelligent relinquishment or abandonment of a known right or privilege. (Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.) We conclude that the State has done so in this case. The evidence establishes that defendant was informed of his Miranda rights on two occasions, once by Officer Ruebhausen and again by Officer Wilson. Questioning immediately ended when defendant indicated he wished to consult with his attorney, which he was allowed to do. The next evening, while returning defendant to his cell, Detective Wilson told the defendant that he was not required to talk with him and reminded defendant of his attorney’s advice not to speak with him. He asked defendant whether he recalled his constitutional rights and defendant replied that he did. The defendant then responded to two questions propounded by Detective Wilson. These circumstances suggest that defendant was fully aware of his right to counsel but elected to forego that right.

This case differs from Brewer v. Williams, relied upon by the defendant, in two respects. The defendant in Brewer was never asked if he wished to remain silent, and the questioning occurred prior to the time he was able to speak with his attorney. Here, the defendant was admonished by Officer Wilson that he could remain silent, and the defendant had had an opportunity to confer with counsel before the subsequent questioning. We are not faced with a situation in which counsel had not been made available to the defendant after he had indicated his desire to have counsel, as was the case in Edwards v. Arizona (1981),_U.S__, 68 L. Ed. 2d 378, 101 S. Ct. 1880. In the instant case, the defendant was afforded both an opportunity to confer with counsel and an opportunity to exercise his right to silence. Under these circumstances, we conclude that defendant’s statements were properly admitted into evidence.

Defendant next challenges the proof of his guilt beyond a reasonable doubt. Essentially, defendant contends that the testimony of the two pathologists that the amount of blood in the area where the deceased’s body was found suggested that the crime occurred elsewhere; that no blood was found on his clothes; and that the evidence of his voluntary intoxication all mandate a reversal of his conviction. We disagree.

The defendant’s conviction for armed violence is supported by the following facts: (1) defendant volunteered to police officers he “had to kill a man last night”; (2) the decedent’s body and a bloody baseball bat were discovered in defendant’s house; and (3) defendant recalled having an argument with the decedent during the course of which he went to get a baseball bat. In short, the evidence at most is merely conflicting and in such cases this court will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Hairston.) Moreover, we are not persuaded that defendant’s claimed alcoholic amnesia warrants reversal in light of the clarity and detail of the defendant’s recollection of the events prior to the argument with the deceased. People v. Jones (1977), 56 Ill. App. 3d 600, 371 N.E.2d 1150.

Defendant next contends that the trial court improperly limited his cross-examination of a tavern employee, Donna Landcaster, by sustaining an objection to his inquiry as to whether she had ever discussed the liability of the tavern with her employer. The scope of cross-examination is left to the discretion of the trial court and reversible error occurs only where there is a clear abuse of that discretion. (People v. Bradford (1979), 78 Ill. App. 3d 869, 397 N.E.2d 863.) In Bradford, the court held it was not an abuse of discretion to preclude cross-examination of a prosecution witness concerning civil lawsuits arising out of the incident where there was no indication that such lawsuits had been or might be filed. Similarly, in the instant case, there is no evidence that any civil action had been filed or contemplated. We find no abuse of discretion by the trial court.

Defendant’s final contention is that he should have been allowed to ask a defense witness, Rose Murphy, about statements made by the decedent, Mr. Pence, on October 2,1979, concerning the fact that he lost a large sum of money and wished to get it back. On the State’s motion, the trial court excluded the decedent’s statements as hearsay and as being irrelevant. On appeal, defendant maintains that the decedent’s statements fall within the state of mind exception to the hearsay rule.

The state of mind expressed by a victim of a crime must be relevant to the issues in the case before it may be admitted. (People v. Perry (1974), 22 Ill. App. 3d 738, 318 N.E.2d 17 (abstract).) In this case, no relevancy was established. The mere fact that decedent had said he lost money and desired to get it back does not logically imply, as defendant argued at trial, that the deceased went to the defendant’s house for purposes of collecting a gambling debt and initiated an altercation. Without a showing that the decedent’s statements were somehow connected to the defendant or the crime, the statements of the deceased were irrelevant and properly excluded.

For the reasons stated, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.


author: JUSTICE HARRISON

text:
    R. GERALD CHOATE et al., Plaintiffs and Counterdefendants-Appellees, v. UNKNOWN HEIRS AND DEVISEES OF O. S. COLE, a/k/a Oscar Cole, Deceased, et al., Defendants and Counterplaintiffs-Appellants.
    Fifth District
    No. 81-98
    Opinion filed November 17, 1981.

      Harris, Lambert and Wilson, of Marion, for appellants.
    William J. Novick, of Fowler & Novick, of Marion, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, R. Gerald Choate and Louise Choate, filed in the circuit court of Williamson County an action to quiet title to certain mineral interests. The Choates’ claim to the property rested upon a tax deed which had issued in October 1965. Defendants, Claudia Cole, Kay Cole Hopkins, and Cline Cole, Jr., filed a counterclaim to quiet title, predicated on a master’s deed issued in a 1935 chancery proceeding to O. S. Cole, the defendants’ predecessor in interest. The Coles also filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), challenging the validity of the tax deed issued to the Choates in 1965. In a well-reasoned order, the trial court found for the Choates and against the Coles on the quiet title actions. The court also denied the Coles’ section 72 petition on the grounds that no evidence of fraud on the part of the Choates was established by the Coles, that the section 72 petition was time-barred in that over two years had elapsed since the 1965 order issuing the tax deed, and no fraud nor fraudulent concealment existed to extend the two-year period during which a section 72 petition may have been brought. The Coles appeal from this order and raise three issues: (1) whether the trial court erred in quieting title in the Choates, (2) whether the trial court erred in denying the section 72 petition to set aside the tax deed, and (3) whether the trial court’s decision applies the statutory tax deed scheme in a manner inconsistent with the Illinois and United States constitutions. For the following reasons we affirm the order of the trial court.

In 1935 O. S. Cole obtained a master’s deed to the mineral rights in question and recorded the deed in 1939. O. S. Cole died in 1943 and his interest in the property succeeded to the defendants, all of whom live in Tennessee. None of the defendants contended that he had paid taxes on the property. In 1965 plaintiff obtained a tax deed to the property after notice by publication was given to all “unknown owners and parties interested.” The court which ordered the tax deed to issue specifically found that “R. Gerald Choate and Louise Choate have in all respects duly complied with the statutory requirements for the issuance of a tax deed • ft # ”

Appellants claim that the trial court erred in quieting title in the Choates and not in the Coles in that the Choates’ title is not superior to that of the Coles and hence the Choates cannot prevail in a quiet title action. This argument misapprehends the nature of this action. Section 266 of the Revenue Act of 1939 provides that a tax deed may only be challenged by direct appeal or by a section 72 petition. (Ill. Rev. Stat. 1979, ch. 120, par. 747.) We conclude that the Coles’ counterclaim in quiet title was properly denied by the trial court, since the counterclaim was neither a direct appeal nor a section 72 petition.

The Coles’ section 72 petition sought to challenge the 1965 tax deed proceeding on the alleged ground of fraud. The petition was filed in 1980, nearly 15 years after entry of the order directing the tax deed to issue. Section 72(3) of the Civil Practice Act provides that “[t]he petition must be filed not later than 2 years after the entry of the order or judgment. Time during which 0 * * the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” (Ill. Rev. Stat. 1979, ch. 110, par. 72.) Under this statute the Coles’ section 72 petition is time-barred unless the ground for relief was fraudulently concealed. The Coles contend that the appellees’ failure to notify appellants personally of the 1965 action during its pendency constitutes fraud. This question has been settled to the contrary. (Exline v. Weldon (1974), 57 Ill. 2d 105, 111, 311 N.E.2d 102.) The mere failure to receive notice of a tax deed proceeding does not, of itself, constitute the requisite fraud, (In re Application of Dickey (1978), 72 Ill. 2d 317, 381 N.E.2d 260; Zeve v. Levy (1967), 37 Ill. 2d 404, 409, 226 N.E.2d 620.) Appellants claim, however, that the alleged failure of the Choates to search the records of Williamson County also comprises fraud. Our supreme court has held that such a “failure to receive notice of the tax-deed proceeding does not, per se, entitle [one] to have the deed set aside. [Citation.] Nor does the fact that respondent’s agent could have made more thorough inquiry and a more diligent search than he did necessarily establish fraud on the part of respondent in the absence of proof of wrongful intent or a pattern of deception.” Zeve v. Levy (1967), 37 Ill. 2d 404, 409.

Appellants rely on Shockley v. Good (1958), 13 Ill. 2d 298, 148 N.E.2d 763. However, in Shockley the tax deed purchaser had deliberately and fraudulently avoided questioning persons whom he had reason to know would provide him with knowledge of the whereabouts of the owners of record. No such conduct on the part of the Choates has been alleged here. Hence the Shockley case is distinguishable. Payne v. Williams (1980), 91 Ill. App. 3d 336, 414 N.E.2d 836, on which appellants also rely, is distinguishable from the instant case in that Payne involved an extended social interaction between the tax deed purchaser and the owner of record who had nonetheless failed to receive personal service of notice. The case sub judice presents neither the ostrich-like behavior in Shockley nor the actual knowledge of the record owners’ whereabouts in Payne. The standard of review for a trial court’s denial of a section 72 petition is whether the trial court has abused its discretion. (Taxman v. Health & Hospital Governing Com. (1980), 83 Ill. App. 3d 499, 502, 404 N.E.2d 419.) We conclude that the trial court’s finding that the 1965 proceeding was not tainted by fraudulent concealment was supported by the evidence and hence the denial of the section 72 petition was not an abuse of discretion.

Appellants next contend that the trial court’s decision violates the requirements of article IX, section 8(b) of the Illinois Constitution and the due process provision of the United States Constitution, in that the Coles did not actually receive personal notice of the 1965 tax deed proceedings. Article IX, section 8(b) of the Illinois Constitution provides in pertinent part that the “[o]wners, occupants and parties interested shall be given reasonable notice of the sale and the date of expiration of the period of redemption as the General Assembly provides by law.” (Ill. Const. 1970, art. IX, §8(b).) A three-judge Federal district court answered this question, to the extent the Federal Constitution is implicated, in Catoor v. Blair (N.D. Ill. 1973), 358 F. Supp. 815. The Catoor court held that the Illinois tax deed system did not offend due process because the provisions for notice and redemption “must be deemed constitutionally adequate when weighed against the legitimate interest of the state in collecting its taxes.” (Catoor v. Blair, 358 F. Supp. 815, 817.) We also find this reasoning to be dispositive of the question now before us regarding the Illinois Constitution and hold that notice by publication is reasonable notice.under article IX, section 8(b) of the Illinois Constitution and the facts of the instant case. See Greenwald v. McCarthy (1948), 402 Ill. 135, 143, 83 N.E.2d 491.

Therefore, we affirm the order of the circuit court of Williamson County.

Affirmed.

KARNS and WELCH, JJ., concur.