author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Jackson, Defendant-Appellant.
    Gen. No. 51,121.
    First District, First Division.
    May 27, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul C. Bradley and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the unlawful sale of narcotics. He was tried by a jury, found guilty, and sentenced to the penitentiary for a term of ten years to life. This trial took place on November 24, 1964, and a proper notice of appeal was filed from that conviction. Subsequently, on November 23, 1966, defendant filed a petition to vacate the judgment and sentence pursuant to section 72 of the Illinois Civil Practice Act (Ill Rev Stats 1965, c 110, § 72). This petition was denied and defendant filed a second appeal. We have consolidated the two appeals.

Defendant asserts first that he was denied his United States constitutional right under the Sixth Amendment and his rights under Article II, Section 9 of the Illinois Constitution, in that he was not given effective assistance of counsel at the trial. Secondly, he argues that he established a defense of entrapment. Finally, he claims the denial of his section 72 petition was erroneous.

When the defendant was arraigned on March 18, 1964, the Public Defender was appointed to represent him, it appearing that defendant did not have funds with which to hire private counsel. The Public Defender immediately made a motion for production of any written statements and a list of witnesses. Defendant himself made a motion to have counsel other than the Public Defender appointed to represent him, and the trial judge obliged him. Appointed counsel commenced his representation of defendant on July 23, 1964, four months after the arrest and four months before the trial.

With respect to the argument that defendant was denied effective representation by counsel at the trial, he points to the following facts which appear in the record. First, defendant’s counsel made a motion to suppress the narcotics which defendant was accused of selling. At the hearing on the motion to suppress, defendant was placed on the stand at which time he told his version of the events leading up to his arrest.

The testimony of the police officers in the instant case revealed that they were involved in conducting a controlled sale of narcotics. The officers had secreted themselves in the closet and a washroom of a hotel room and, from that vantage point, observed the defendant and the police informant engage in a narcotics transaction. As soon as the officers observed the presence of narcotics, they emerged from their hiding places and arrested defendant. These facts would seem to indicate that no search or illegal seizure was involved upon which to found any motion for suppression of the evidence.

After the trial judge ruled on the motion to suppress the evidence, defense counsel orally moved for a change of venue. He stated that he did not have a chance to prepare a written motion as is clearly required by the statute. (Ill Rev Stats 1967, c 38, § 114-5.)

The defendant points to nine different places in the record where the prosecutor was permitted to lead his witnesses without any objection from defense counsel. On one occasion counsel did raise an objection to a leading question, but asserted that the grounds for his objection was relevancy.

Defendant also points to four separate occasions during the course of the trial where the prosecutor was permitted to elicit, or a witness was permitted to give, hearsay testimony. On no such occasion did defense counsel raise any objection to the improper testimony.

It is further pointed out that counsel failed to make the routine pretrial motions, such as requesting a copy of police reports, a list of witnesses, or a transcript of the testimony at the preliminary hearing. These motions are generally considered essential to the defense of a criminal action and in the instant case a transcript of the preliminary hearing would have revealed information upon which to base an impeachment of one of the police officers.

The theory which emerges from the testimony of the defendant during the motion to suppress indicates the defense of entrapment. This theory was abandoned during the course of the trial. However, the facts which came to light in that hearing indicate that the defendant was really pooling his money with the police informant, and other persons, to enable them to purchase narcotics. Defendant, however, was charged with the sale of narcotics. If the same facts elicited at the motion to suppress had been presented at the trial, it might have been proven to be a defense to the charge of sale.

As indicated, the defendant was only charged with sale of narcotics. However, the instructions submitted to the jury on behalf of the State set out the full nature of the narcotics law concerning the unlawfulness of possession, control, sale, prescribing, administering, dispensing or compounding narcotic drugs. Counsel failed to object to such instructions and permitted them to go to the jury.

In closing argument, the prosecutor referred to the defendant as a seller of narcotics “using a woman for his own profit and his own gain.” This characterization was not supported by the evidence, but no objection on defendant’s behalf was interposed.

In his opening statement, defendant’s counsel stated to the jury that he was “not able to put the defendant on the stand.” The trial judge corrected him by indicating that he really meant he did not elect to put the defendant on the stand. Counsel agreed with the trial judge and then said to the jury, “I also ask you not to make your minds up until all the evidence is in, until we have a chance to make a final argument.” Again, in his closing argument, counsel indicated that “all the evidence is not in until we have all finished talking.”

In Powell v. Alabama, 287 US 45 (1932), a denial of effective and substantial assistance from counsel in a capital case was held to constitute a violation of the defendant’s right to due process of the law within the meaning of the Fourteenth Amendment of the United States Constitution. Gideon v. Wainwright, 372 US 335 (1963), extended this fundamental and essential right of counsel to all criminal prosecutions.

In People v. Blevins, 251 Ill 381, 390, 96 NE 214 (1911), our Supreme Court stated:

“(I)t is the duty of the court that counsel is assigned having sufficient ability and experience to fairly represent the defendant, present his defense and protect him from undue oppression.”

This standard was repeated in People v. Morris, 3 Ill2d 437, 445, 121 NE2d 810 (1954), where the court reviewed a series of Illinois cases reversing convictions based in part upon the incompetency of the trial counsel.

Our review of the conduct of the instant trial demonstrates that the conduct of the defendant’s counsel did not measure up to that expected of a competent and conscientious trial attorney. The State argues that the defendant is not entitled to a reversal unless the incompetency of counsel visited substantial prejudice on the defendant. People v. Dean, 31 Ill2d 214, 201 NE2d 405 (1964); People v. Anthony, 28 Ill2d 65, 190 NE2d 837 (1963).

Because we feel that defendant is entitled to a new trial, we must refrain from expressing any opinion upon the sufficiency of the evidence, both as to the prosecution and the defense of entrapment. This case must be retried and what evidence will be adduced in a second trial is not before this court. People v. Ruffin, 406 Ill 437, 442, 94 NE2d 433 (1950). However, in response to the State’s argument that substantial prejudice is not shown, we think a fair reading of the record would at best indicate that defendant was guilty of possession of narcotics and not sale. The difference in the severity of the sentences attached to these related offenses is adequate demonstration of the prejudice visited upon the defendant.

By our opinion today, we express no judgment on the general quality and criminal law experience of bar association attorneys, nor do we express any opinion with respect to the method by which such attorneys are appointed. Our ruling is limited solely to the peculiar facts of the instant case in which the court appointed attorney failed to demonstrate that he had any experience in criminal matters or was familiar with certain basic rules of criminal trial procedure.

For the foregoing reasons, this cause is reversed and remanded for a new trial. It is therefore unnecessary for us to discuss the issues raised by defendant with respect to the denial of his petition under section 72.

Reversed and remanded for new trial.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edgar Lee, Jr. (Impleaded), Defendant-Appellant. People of the State of Illinois, Plaintiff-Appellee, v. Roy Gustus, Defendant-Appellant.
    Gen. Nos. 51,314, 51,315.
    First District, First Division.
    May 27, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a two-count indictment, defendants were charged with rape and aggravated kidnaping. After a bench trial, they were both found guilty of both charges. Defendant Lee received separate sentences of 2 to 7 years on both counts, to be served concurrently. Defendant Gustus received separate sentences of 2 to 5 years on both counts, to be served concurrently. On appeal, defendants contend they were not proved guilty beyond a reasonable doubt. Defendants’ separate appeals, Nos. 51,814 and 51,315, are consolidated in one opinion for convenience.

The undisputed facts show that about two o’clock in the morning of December 9, 1965, Mrs. Jessie Carlisle parked her car in front of her mother-in-law’s house at 1707 Washington Boulevard, Chicago. The complaining witness, Mary Glenn, and her husband, John Glenn, were with her. Mrs. Carlisle and Mr. Glenn went upstairs to pick up the Carlisle children, while Mrs. Glenn remained in the car with the motor running. She didn’t feel well, and she could keep warm for the short time they were to be gone. While Mrs. Glenn dozed in the front passenger seat, the two defendants, Edgar Lee, Jr., and Roy Gustus, entered the car and drove off with Mrs. Glenn, whom they had never met before.

Mrs. Glenn testified she asked the defendants what they were doing, and they told her to keep quiet. Gustus threatened to kick in her face. After they drove for a few minutes, she told them she had to go to the washroom and asked them to pull over to a filling station, which they refused to do. Later, they stopped in a parking lot of a housing project at 2245 Lake Street and let her out. While she was urinating, Police Officer Jackson came up and inquired what she was doing, and she told him. She then told Officer Jackson that Lee and Gustus had stolen the car. The officer questioned the defendants and opened the trunk of the car. Mrs. Glenn begged him to take her home, and he refused to do so and left in a squad car.

After the officer left, Mrs. Glenn ran over to the housing project, screaming and shouting. The defendants pulled her into an elevator and “punched the button'. I was down on the floor of the elevator. . . . One of them hit me in the mouth. They had their arms around my mouth, mugging my mouth, because I was hollering and telling them to leave me alone. Lee said, ‘We’re not going to hurt you.’ He kept pulling me until they got me inside and had me in the elevator. ... I couldn’t kick; I couldn’t holler because he had his hand over my mouth. I was fighting, but I couldn’t hit anybody. Lee hit me in the mouth outside the elevator, I don’t know how many times. I had a bump on my head from them dragging me by the stair steps.”

Mrs. Glenn was dragged to the top of a stairway, where Lee pulled down her undergarments, and both of them had sexual intercourse with her. A written statement given to the police immediately after the affair included: “This man Lee pulled my pants off and then he had Gustus standing in the door listening. Lee finished, Gustus had me, they hit me in the mouth, then I heard some keys rattle, that’s when the two men ran. Then two policemen came up the stairs. . . . One went to the stairs and I went downstairs with the other policeman. When we got downstairs or right after that I saw Gustus and Lee again and the police had them. I told the police that these were the men.”

Michael Bolton, one of the arresting police officers, testified that when they arrived at the housing project at 2245 Lake Street, they went to the third-floor stairway landing, where they observed Mrs. Glenn. “She was kind of incoherent. She was sobbing, crying, and her pants were down to about knee length. She was bare from the knees up to about the waistline. She said that she had been raped and assaulted by two colored boys. Shortly after she spoke these words, I heard some footsteps on a stairwell which led upward. I went up the stairs to between the fourth and fifth-floor landing. I observed a boy coming down the stairs (indicating Edgar Lee). I accompanied him down the stairway to the third-floor landing, where I asked Mrs. Glenn if this boy was one of the two boys who had raped and assaulted her and she stated yes, he was one of them. I brought him downstairs to the main floor landing, where my partner, Officer Minasola, was standing with another fellow (indicating Roy Gustus). At this time Mary Glenn identified Gustus as the other offender.”

On cross-examination, he testified: “Mary Glenn told me two colored boys had raped and assaulted her, struck her on the side of her head and all over her face. That was all she said. I had no further conversations with her or with the two boys.”

Another witness for the State, Booker Porter, a police officer, took a written statement from Mary Glenn in the presence of the defendants. “After Mrs. Glenn’s statement, Detective Smith had a conversation with Edgar Lee in the interrogation room. Roy Gustus was standing next to him, Mrs. Glenn and Mr. and Mrs. Carlisle and I were present. Detective Smith asked him, ‘What happened over there?’ He didn’t say anything. Detective Smith said, T just talked to Gustus out in the hall and he told me that everything that Mrs. Glenn said was the truth and I know all about what happened. Now you tell me what happened.’ Lee said, ‘Well, everything what she says is just about the truth. We took the car and we went over there. Everything is just about the truth with the exception that I didn’t force her to have relations and I didn’t hit her.’ ”

John E. Glenn, husband of Mary Glenn, a plasterer by trade, testified to the events up until the time he left his wife sitting in the car, and that they had been to the American Legion Post, and “she had one beer to drink.”

The two defendants testified. They admitted having intercourse with Mary Glenn but insisted it was with her consent. They had seen her sitting in the automobile and invited her to have a drink with them, and she consented. Lee drove the car, and they went to the El Chico Lounge, about two and one-half blocks away, where he parked the car and bought a half-pint of gin. At the parking lot, Mrs. Glenn got out, and they were sitting in the car when Officer Jackson arrived and questioned them. She “drank about a shot or a shot and a half when she got back into the car.” She walked into the building and the elevator of her own accord. They also denied admitting the truth of the statement given by Mrs. Glenn at the police station.

Police Officer Jackson testified for the defense and related the parking lot incident, and said, “As I was walking back to the car she asked me to take her home. I told her I couldn’t take her home . . . that it is against the rules and regulations, unless it is on official police business. She said nothing to me about the defendants trying to rape her or beat her up or anything else. . . . I noticed no bruises or marks on Mary Glenn while I was talking to her. She appeared to have been drinking.” On cross-examination he said he believed she was drinking because of the way she talked and the way she looked — “I smelled liquor on her breath.”

Defendants’ first contention is that there was a failure of proof of the essential element of resistance. Defendants argue that the testimony of the complaining witness herself established that she did not resist the two men. Defendants assert that “voluntary submission by the female, while she has power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape. ... In a rape case, where the charge is denied, in order to sustain a conviction, unless the evidence is clear and convincing, the testimony of the prosecutrix must be corroborated by other facts and circumstances in evidence,” (People v. Scott, 407 Ill 301, 306, 95 NE2d 315 (1950)), and that “if she had the use of her faculties and physical powers the evidence must show such resistance as to demonstrate that the act was against her will. ... It is incumbent upon the State to prove such resistance beyond a reasonable doubt. The act of intercourse being admitted, resistance became the gist of the offense charged.” People v. Serrielle, 354 Ill 182, 186, 188 NE 375 (1933).

Defendants argue that Mrs. Glenn was 38 years old at the time of the occurrence, 5 feet, 9 inches tall, and weighed 170 pounds. Neither of the defendants was larger than Mrs. Glenn, and they carried no weapons, and she failed to impress Officer Jackson as being in danger. The policeman who found her and took her to the hospital noticed no wounds, scratch marks or bruises on Mrs. Glenn, with the exception of a small cut inside her lip. She walked down the stairs unassisted, after the police came, and none of her clothing was torn. Defendants assert, “Mrs. Glenn’s testimony clearly shows her submissive attitude and passive acceptance during the entire episode.”

The State contends that an analysis of the testimony shows there was sufficient proof that the acts were by force and against the will of the prosecutrix. The defendant Lee was 22 years old, and Gustus was 20 years old. While both defendants were smaller than Mrs. Glenn, they nevertheless were her physical superiors, and she was suffering from an arthritic condition. Jessie Car-lisle and prosecutrix’ husband corroborated her testimony that she was not feeling well on the evening in question. Also, Officer Jackson corroborated her statement that she had asked him to take her away and that he had refused.

The issue of “failure to resist” or “voluntary submission” must be determined by all the facts and circumstances in each particular case. In People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1965), it is said (p 92):

“There is no definite standard fixing the amount of force required and each case must be considered on its own facts. It is the general rule that if the female has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will. However, resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, nor where she is overcome by superior strength or paralyzed by fear.”

In this case defendants admitted the acts of intercourse and asserted consent. The testimony of the prosecutrix demonstrated such resistance as to show that the act was against her will and under circumstances where further resistance would have been futile and might have brought her physical harm. Corroboration of her unwillingness is found in the testimony of Officer Jackson that she sought his assistance to escape from the defendants and also in the fact that her efforts to resist promptly brought other policemen to her aid. Officer Bolton described the crying, sobbing and incoherent condition of Mrs. Glenn when he found her and her prompt complaint of rape and identification of both defendants at the scene of the occurrence. We conclude the testimony of the prosecutrix was clear and convincing and corroborated by other facts and circumstances in evidence. We find there is no merit in defendants’ contention that they were not proved guilty beyond a reasonable doubt.

In a bench trial in a criminal case, the reviewing court, in view of the opportunities for observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to a defendant’s guilt. (People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963).) Applying that test here, we believe the trial court was presented with satisfactory and plausible proof on which to find both defendants guilty of both charges of rape and aggravated kidnaping.

For the reasons given, the judgments of the Circuit Court are affirmed.

Appeal No. 51,314 — affirmed. Appeal No. 51,315— affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Alexander (Impleaded), Defendant-Appellant.
    Gen. No. 51,668.
    First District, First Division.
    May 27, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John F. Ward, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Two indictments for robbery were returned against defendant. He was found guilty in a bench trial and sentenced to the Illinois State Penitentiary for a term of not less than one year, nor more than five years on each indictment, to be served concurrently and not consecutively. Prior to the trial of this cause, he moved to suppress his confession which he claimed was obtained only after he was savagely beaten by the police. The motion to suppress was denied and defendant appeals claiming this was error and that he was not proven guilty beyond a reasonable doubt.

On December 17, 1965, the Victory Food Mart at 5907 S. State Street, in Chicago, was robbed by two black men. On December 31, 1965, a tavern at 5722 S. State Street, in Chicago, was robbed and a patron was shot as he tried to flee from the premises. According to the testimony of the police, one George Reynolds and Fred Alexander, the appellant here, were arrested at about 2:00 p. m., on January 1, 1966. Reynolds and Alexander were taken to the Area 1 Robbery headquarters where they were handcuffed to chairs on opposite sides of a large open office and questioned about the two robberies. Alexander was advised that he did not have to make a statement but he was not advised of his right to counsel.

Officer Spangelo, who questioned Alexander, denied that any force, threat, coercion, or violence of any nature was used, nor were any promises made. Spangelo also denied that his partner, officer Hein, used any force such as striking Alexander in the face or kicking him in the groin. The officer testified that at no time did he see defendant’s face bleeding, nor was the defendant ever taken down into the basement of the police station. Spangelo acknowledged that the Task Force has lockers in the basement, but otherwise could not describe the basement.

Officer Hein also testified that no force was used against the defendant by either himself or his partner, Spangelo. He also denied that Alexander was ever taken down into the basement.

The allegedly involuntary confession was obtained from Alexander about 3:00 or 3:30 p. m., according to officers Spangelo and Hein. The arrest slip, however, shows the time of the arrest at 5:15 p. m. Spangelo claimed this was when the slip was made out, not when the arrest was made. Both officers believed the defendant was transported from the station at seven or eight o’clock that evening.

Officer Saxon was on duty on January 1, 1966, from four o’clock in the afternoon until twelve midnight. He recalled picking up some prisoners at the Area 1 police station and transporting them down to the central police station at 11th and State streets. Officer Saxon did not remember defendant Alexander, nor did he remember whether or not Alexander had any blood on his face. The only thing the officer remembered is that one of the prisoners complained about his arm and although there were doctors at the central police station, the officer stopped at Provident Hospital. The officer testified that generally if a prisoner complains of being sick, ill, or hurt, he is taken to a hospital. If not, the lockup keeper will not accept the prisoners and the officers would have to take them back to a hospital.

Officer Smith was working the squadrol with officer Saxon on New Year’s Day, 1966. He remembered Alexander and having transported him to Provident Hospital. He did not notice anything unusual about Alexander at that time and recalled that Alexander had banged against the window to get his attention and asked to be taken to a hospital because his arm was hurting. Alexander was handcuffed and taken into the hospital. About ten minutes elapsed before he emerged, but officer Smith did not recall seeing any bandages on his head, nor did he know what medical attention was given to Alexander at the hospital.

The testimony of the four officers was all of the evidence produced by the State with respect to the motion to suppress the confession. Defendant introduced the testimony of a codefendant, George Reynolds, the record librarian from Provident Hospital, the doctor who treated Alexander at Provident Hospital, the Inmate’s Record from Cook County Jail and his own testimony. Reynolds testified that he thought he was arrested at about one o’clock and taken to the police station around one-thirty. He was kept in a detention room for about four or five hours and at about eight or nine o’clock in the evening, officer Spangelo took him down to the basement, handcuffed him behind his back and asked him if he had anything to do with the robbery. When Reynolds said no, the officer beat him. At about eleven o’clock he was transported from the station with Fred Alexander. His description of Alexander was that his nose looked like it was broken and his lip was puffed. Reynolds could not remember whether it was Alexander’s right or left eye, but there was a scar over the eye and both his eye and mouth were bleeding. After stopping at Provident Hospital, Alexander returned to the squadrol with a patch over the eye.

The record librarian of Provident Hospital produced a “Report Of Emergency Case” which showed that Fred Alexander was brought into the hospital at 10:55 p. m., on January 1, 1966. The hospital report showed “laceration forearm” and “laceration of temple (Pt is a prisoner) .” The report was signed by Dr. Nazon.

Dr. Nazon remembered seeing Alexander on the evening of January 1, 1966, in the Provident Hospital emergency room. He did not remember the officer who brought Alexander in, but he did remember that policemen brought him into the hospital. The doctor recalled that the statement “laceration forearm” was incorrect and should have read “laceration forehead.” He cleaned and sutured the wound on the forehead, but could not remember whether it was the right or left side. This was the only injury Dr. Nazon remembered. On the doctor’s report it stated “Treatment: C & S plus T T.” The doctor explained that this meant clinic, suture and toxoid.

When Alexander was admitted to Cook County Jail, an “Inmate’s Record” was prepared. On the second page of the Inmate’s Record there is a physical chart on which the intake clerk drew a circle on the skeletal figure on the chart and wrote “cut on left cheek.” A second circle was drawn around the right eye and he wrote “hemorrhage in the rt. eye — bad.”

Alexander took the stand on his own behalf and testified that he was arrested at about five o’clock in the evening on January 1, 1966. He was taken to the police station about five-thirty and handcuffed to a chair. He denied being advised of his rights and said that he was asked a few questions and then left alone for about three hours. At about eight-thirty or nine o’clock he was taken downstairs to the basement of the police station. Officer Spangelo and two other officers started asking him questions about the robberies. When he said he did not know anything, they hit him in the nose and he fell to the ground. He could see blood gushing out of his nose. As he tried to get back up one of the officers kicked him and they continued to ask him questions and beat him. Alexander thought he passed out for a little while, but when he came to, the questions began all over again. He did not know how much time had passed while the beating was going on. He was hit several times by the officers with a police stick and with their fists. His eye was hit so hard that he could not see clearly for a couple of weeks.

Alexander further testified that after they hit him for a while they took him over to a water fountain and held his head down in a sink half full of water. This was repeated three or four times. At this point Alexander said yes to everything they asked him.

He described the basement of the police station as having about a six-foot high ceiling with pillars in it. The heating unit and fire extinguishers were down there as well as some lockers and a sink.

Alexander believed it was about 11:00 p. m. when the officers transported him from the police station. He remembered officer Smith who took him to Provident Hospital where his eye was stitched up. During the entire time that this was going on, Alexander was handcuffed and while the beating was being administered his hands were linked through his belt behind his back. When he arrived at 11th and State his lip was pretty well puffed out, as well as his eye, and his wrist was swollen up. He was treated in the County Jail clinic for approximately two weeks.

Alexander never signed a written statement confessing to the two robberies involved. The confession was made orally to the police officers. He and Reynolds subsequently led the officers to the roof of the apartment building where Alexander lived. On the roof, the police recovered a 9-millimeter Luger pistol which, upon analysis by the crime laboratory, was determined to be the weapon used in the two robberies. The weapon belonged to Reynolds and according to the stipulation, he was the one who fired the pistol.

Not one of the victims of the two robbery incidents made an eyewitness identification of Alexander. The only evidence against Alexander was his confession and the subsequent recovery of the pistol. In its brief, the State admits that the only evidence, other than the confession, linking Alexander to the crime is the fact that he, along with Reynolds, led the officers to the weapon which was hidden on the roof of the apartment building.

The constitutional test for the admission of a confession in evidence is whether the confession was made freely, voluntarily and without compulsion or abuse of any sort. A confession obtained by force or brutality is not voluntary and not admissible. In addition to the issue of brutality, the lack of counsel is a factor to be considered in determining the voluntary nature of a confession. This is true even though the standard of Miranda v. Arizona, 384 US 436 (1966) is not applicable to the instant case since the arrest and trial occurred prior to June 13, 1966. (Johnson v. New Jersey, 384 US 719 (1966).) Furthermore, it is an established rule that where an accused suffers injuries while in police custody, clear and convincing proof is required to establish that injuries were not the result of police brutality. People v. Davis, 35 Ill2d 202, 206, 220 NE2d 222 (1966) and cases cited therein.

The State acknowledges the existence of the standard as set forth in Davis, but presents a two-prong reply. First, they argue that the testimony of the police officers is clear and convincing proof that no brutality was visited upon the defendant. Referring to the medical report of Provident Hospital, it argues that a minor laceration on the forehead which was sutured, with no other apparent injuries, shows a lack of brutality and therefore the case boiled down to a question of credibility between the story told by Alexander and the testimony of the police officers. We cannot agree with this argument. A laceration on the forehead requiring a doctor to clean it out, apply a toxoid and suture cannot be classified as a minor injury. Furthermore, Alexander’s admittance record to County Jail indicates a cut on the left cheek and hemorrhage in the right eye which the admitting officer designated as “bad.” The testimony of the police officers that they do not remember Alexander bleeding on or about the face and their denial that he was taken down to the basement of the police station and beaten does not constitute clear and convincing evidence sufficient to counteract the medical report of Provident Hospital and the admitting sheet from Cook County Jail, as well as all the other corroborating evidence.

The State, however, adopts an alternative position. They argue that the brutality occurred after the confession was given to the police. Thus, any such brutality would in no way affect the voluntariness of a confession already given. The basis of this argument, of course, is the difference in the hours at which the police claimed they arrested and interrogated the defendant as opposed to the defense testimony concerning the times at which the incidents occurred. It is impossible for us to believe that the police officers brutally beat Alexander after having obtained a confession from him. If this were true, why did he subsequently lead the officers to the pistol? Alexander was taken to Provident Hospital at approximately eleven o’clock in the evening, and the arrest sheet showed that he was arrested at five o’clock in the afternoon. This would strongly tend to corroborate the defense version of the incidents on New Year’s day, 1966, more than the hours testified to by the police officers. It is of further significance that the two arresting officers, Spangelo and Hein, testified that defendant left the Area 1 police station at about seven o’clock, or no later than eight o’clock in the evening. However, the hospital record shows that he did not arrive until 10:55 p. m. The proximity of the Area 1 police station and Provident Hospital would clearly negate the possibility of a three-hour ride. Furthermore, there is no evidence, let alone clear and convincing, that the injuries suffered by the defendant occurred subsequent to the giving of his confession.

A short quote from People v. Davis, supra, is particularly apropos:

“While the finding of the trial judge is entitled to great weight insofar as the credibility ■ of the witness is concerned, a determination of the issue here does not rest upon a question of credibility. The undisputed evidence shows that the defendant was injured while he was in police custody and the injuries were not explained by the State; that the defendant was held in police custody for a week without a hearing; that he was without counsel. In our opinion the confession obtained under these circumstances was not voluntary and the trial judge erred in ruling that it was admissible.” (P 207.)

While the instant case does not present a long period of incarceration without a hearing, we do have serious injuries adequately corroborated by an independent hospital and the Cook County jailer. In our opinion the confession obtained from Alexander was not voluntary and was erroneously held to be admissible.

Defendant stipulated that the pistol found on the roof of his home belonged to and was fired by Reynolds during the two robberies involved. No independent motion to suppress was made. However, the information leading to the recovery of the pistol could only have resulted from the illegally obtained confession. As the Supreme Court pointed out in Rogers v. Richmond, 365 US 534 (1960), the standard of whether a confession is trustworthy or untrustworthy is no longer the test for determining its admissibility.

“Our decisions under that Amendment (Fourteenth) have made clear that convictions following the admission into evidence of confessions which are involuntary, i. e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. . . . Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement. Since a defendant had been subjected to pressures to which, under our accusatorial system, an accused should not be subjected, we were constrained to find that the procedures leading to his conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees.” (Pp 540-541.)

In People v. Ditson, 57 Cal2d 415, 20 Cal Rptr, 369 P2d 714 (1962), the California Supreme Court held:

. . (T)he reason for the common-law rule permitting the introduction of real evidence discovered by means of an involuntary confession — that such evidence tends to prove the ‘trustworthiness’ of the confession — must now be deemed constitutionally indefensible, and hence that the rule itself must be abandoned. The inquiry should instead be directed to the issue of whether the introduction of the challenged evidence — the confession itself or its asserted product — in a criminal prosecution which culminated in a conviction denied the defendant, in the particular circumstances of that case, any essential element of a fair trial or due process of law.” (P 727.)

In the recent case of People v. Raddatz, 91 Ill App2d 425, 235 NE2d 353 (1968), this court held that a confession “properly” obtained subsequent to obtaining a confession by improper methods was inadmissible and we sustained an order suppressing such second confession. Analogously use by the State of the “second confession” in the instant cause, i. e., defendant’s knowledge of the location of the pistol, is also improper.

Since both the confession and the pistol are inadmissible there remains no evidence upon which to base a conviction under the two indictments. Even if we were to hold that the pistol was admissible into evidence, there was a failure on the part of the victims or witnesses to the robberies to identify Alexander and the pistol was found on the roof of an apartment building to which many persons had access. The pistol alone is insufficient to sustain the conviction. The reasonable doubt arising from this meager evidence against Alexander requires us to reverse his conviction without remanding for a new trial.

Judgment reversed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Marshall, Defendant-Appellant.
    Gen. No. 52,072.
    First District, First Division.
    May 27, 1968.

      Lionel I. Brazen, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was found guilty of robbery and sentenced to 5 to 12 years in the penitentiary. On appeal defendant complains of trial errors, erroneous instructions, and asserts that his sentence is excessive and should be reduced.

The evidence shows that on the afternoon of April 4, 1966, after boarding a CTA bus, and in the presence of about twenty-five passengers, defendant, in a threatening manner, demanded money from the bus driver. He took eight single-dollar bills from the driver and “made a pass at the [money] changer.”

The driver kept the bus moving and, after going some distance and through a red light, the driver saw a police car and stopped and called to the police. During the ride, the defendant kept threatening to kill the driver if he did not open the door and kicked out the glass in the bus door trying to get the door open.

After the driver told the police that defendant had robbed him, they placed defendant under arrest and took him from the bus. The police made a search of defendant’s person and found no weapon. At the direction of the driver and in his presence, they found the eight single-dollar bills in defendant’s “right pants’ pocket.”

The witnesses for the State included the bus driver, the arresting police officer and a passenger who saw and heard the entire occurrence. Over defendant’s objection, the court admitted into evidence on behalf of the State the eight dollar bills as a group exhibit.

Defendant testified that he was a resident of Chicago, married and the father of children. On April 4, 1966, he had been drinking whiskey and had been under a doctor's care for a liver ailment; he boarded a CTA bus and handed the bus driver one dollar; that he was suddenly taken sick and asked the driver to let him off the bus; that the driver refused to return the dollar; that he thereupon took the dollar back from the driver and kept demanding his release from the bus because of stomach cramps and illness; that the driver ignored his pleas and kept on going; that he then sought to make his way out by kicking out the door; that he did not take the $8 from the driver; that he was unarmed; that he did not put his hand in his coat in a threatening manner; that he made no hostile gestures toward the driver; that he had told the police that he had no intention of committing a robbery because he was employed; and that in 1955 he was convicted for the crime of armed robbery.

Under cross-examination defendant testified that on April 4, 1966, he had about $16 on his person before leaving home. He made several purchases of liquor and beer, which he drank despite his suffering from a liver ailment; that he never threatened to kill the bus driver; that he gave the driver one dollar; and that he was seized with cramps and sought to leave the bus, and took back his own money.

Initially, defendant argues that his mental condition from the combined effects of sickness and heavy drinking was at such a low ebb that the requisite intent to commit a robbery “could well have been absent.” Defendant states, “When ignorance or mistake of fact negatives the existence of an intent essential to the commission of an offense the defendant’s ignorance or mistake of fact is a defense,” and that an instruction concerning the existence of ignorance or mistake of fact on the part of the defendant should have been given to the jury. If such an instruction was appropriate here, the record indicates that defendant failed to request any such instruction. It has consistently been held in Illinois that if a defendant wishes certain instructions to be given, he should offer them and request the court to give them, since the trial court is under no duty to give instructions on its own motion. (People v. Lindsay, 412 Ill 472, 484, 107 NE2d 614 (1952).) We find no error here.

Defendant next contends that the State’s instruction No. 11 was incorrect in that it included, “the intent alleged in the indictment is necessary to be shown. But such intent need not necessarily be proven by direct evidence.” Defendant asserts, “There is no mention made at all in the Indictment concerning intent. It is submitted that the jury could well have believed that any forcible taking of property constitutes robbery.” Defendant argues that he was entitled to have the jury instructed with substantial accuracy, and an incorrect instruction in a case where the evidence is conflicting is not cured by a correct instruction. Citations include People v. Flynn, 378 Ill 351, 355, 38 NE2d 49 (1941).

The State concedes instruction No. 11 was unnecessary but asserts it was not prejudicial error. In robbery prosecutions under chapter 38, section 18-1, it is not necessary to allege or prove any intent. The indictment here charged the offense of robbery in statutory terms and cited the statute violated, and so particularized the offense that the defendant was notified with reasonable certainty of the precise offense with which he was charged. See People v. Gold, 38 Ill2d 510, 516, 232 NE 2d 702 (1967). We find the giving of instruction No. 11 was harmless error. See People v. Emerling, 341 Ill 424, 428, 173 NE 474 (1930).

Defendant next contends that the eight one-dollar bills were admitted into evidence without sufficient foundation in that “this money was not identified with any degree of precision, and when coupled with the fact that defendant, at all times during the alleged robbery had money of his own on his person, it is submitted that the admission of the eight dollar bills into evidence, and then used as an exhibit, was seriously prejudicial to the defendant.”

This contention is without merit. Although the bus driver could not identify the exact bills, he did testify that the defendant, from the robbery to the arrest, was never out of his sight. The police found eight dollar bills in the defendant’s “right pants’ pocket” at the direction of the driver and immediately after the robbery. See People v. Rogers, 16 Ill2d 175, 180, 157 NE2d 28 (1959).

Defendant further contends that the trial court failed to conduct a full and complete hearing in aggravation and mitigation of the offense. The record shows that such a hearing was had, and the transcript of the testimony includes the inquiries of the court and statements of counsel and of the defendant. We find the hearing on mitigation and aggravation complied with the provisions of chapter 38, section 1-7 (g).

Defendant finally contends that his sentence is excessive and, “in view of the paltry amount involved,” should be reduced so that defendant may rejoin his family and home. Defendant’s criminal record commenced in 1952 and included assault with deadly weapon, armed robbery, malicious mischief and drunk and disorderly. Before sentencing defendant to 5 to 12 years in the penitentiary, the trial court remarked, “What do you do with a man with a record like this ? Do you permit him to remain free so he can go and perpetrate other crimes ? He has had sufficient time to rehabilitate himself. He has been in jail a number of times.”

We agree with the remarks of the trial judge and believe that defendant’s rehabilitation seems doubtful, and the primary concern here should be the protection of the public from defendant’s proclivities. However, in spite of the character and propensities of the defendant and the chances of reform, after considering the nature of the offense and the attending circumstances here, we believe that the instant record indicates that this is a proper case for the exercise of the power to “reduce the punishment imposed by the trial court.” Rule 615(b) (4), Illinois Supreme Court Rules. See, also, People v. Swafford, 89 Ill App2d 176, 179, 232 NE2d 308 (1967).

For the reasons given, defendant’s conviction of robbery is affirmed, and defendant’s sentence is reduced to a minimum of 3 years and a maximum of 6 years in the Illinois State Penitentiary. As modified, the judgment of the Criminal Division of the Circuit Court is affirmed.

Judgment modified and affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Bolden, Defendant-Appellant.
    Gen. No. 52,277.
    First District, First Division.
    May 27, 1968.

      Walter La Von Pride, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Richard Rinella, and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was charged with the offense of unlawful possession of a hypodermic needle. He was tried by the court, found guilty, sentenced to 60 days in the County Jail and fined $1,000. He prosecutes this appeal alleging certain trial errors and that the State did not prove him guilty beyond a reasonable doubt.

The only witness for the State was a police officer assigned to the Narcotic Division. The officer had obtained a search warrant for the Bolden apartment. Upon arriving at the apartment building he observed Mrs. Bolden coming out of her car and carrying a bag of groceries. The officer informed her of the fact that he had a search warrant and accompanied her upstairs. The defendant, Mr. Bolden, was sitting in a chair in the living room with his leg in a plaster cast from the ankle to the hip.

The officer informed Bolden of the fact that he had a search warrant and told Bolden “it would be easier if he had any narcotics, rather than tear up the place with a search, that he should come up with it.” Bolden’s response was: “I don’t have any narcotics.”

A search of the premises was then conducted and a needle and syringe were found underneath the bed in the back bedroom. Upon showing the needle and syringe to Bolden, he said, “No, it is not mine. Can’t you see I just got out of the hospital? I am not using narcotics.”

The officer also asked Mrs. Bolden about the hypodermic needle and she remained mute. An examination of her arms revealed fresh needle marks. Mrs. Bolden was a known narcotic addict.

Bolden took the stand in his own defense and testified that he knew nothing about the hypodermic needle. He was aware that his wife was a narcotic addict, and he admitted that he also had been a narcotic addict. However, the last time he used any narcotics was in 1962, about three years prior to the date of the incident in question.

In our view, the evidence as outlined above does not establish beyond a reasonable doubt that the defendant was in possession of the hypodermic needle. While no cases involving the sufficiency of the evidence necessary to sustain a conviction under the Hypodermic Syringes and Needles Act (Ill Rev Stats 1967, c 38, § 22-50 et seq.) have been presented to this court, there are two cases decided under the laws relating to narcotics which we find appropriate. In People v. Connie, 52 Ill App2d 221, 201 NE2d 641 (1964), this court stated that “the burden remained on the People to show that no one other than defendant was responsible for the presence of narcotics.” (P 228.)

This court is well aware of the law of constructive possession. However, in People v. Nettles, 23 Ill2d 306, 178 NE2d 361 (1961), the Supreme Court stated:

“(W)here narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt.” (Citations omitted; emphasis added.)

In the instant case there are other facts which give rise to reasonable doubt of the defendant’s guilt. First we note that he had recently come out of the hospital and had a cast running from his hip down to his ankle, thereby immobilizing him. Secondly, the syringe was found under the bed in a back bedroom of the apartment. Defendant denied knowing anything about the syringe and when the police officer questioned his wife who also had control of the apartment, she gave no answer. While this verbal act might not be sufficient to sustain a conviction of Mrs. Bolden, it nevertheless reflects on the defendant’s innocence. Furthermore, an examination of Mrs. Bolden’s arm revealed fresh needle marks thereby indicating the syringe belonged to her and not the defendant.

For the foregoing reasons we find the evidence insufficient to prove defendant guilty beyond a reasonable doubt of possession of a hypodermic needle and his conviction is reversed.

Judgment reversed.

BURMAN, P. J. and MURPHY, J., concur.


author: GOLDENHERSH, J.

text:
    Rudolph Moren, Plaintiff-Appellant, v. Samuel M. Langston Company, Defendant-Appellee.
    Gen. No. 50,940.
    First Judicial District.
    May 27, 1968.
    Rehearing denied July 1,1968.

      Asher, Greenfield, Gubbins & Segall, and Irving D. Levin, of Chicago (George W. Angerstein and Sidney Z. Karasik, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Michel A. Coccia, Francis D. Morrissey, and John W. Dondanville, of counsel), for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Cook County entered upon a jury verdict finding in favor of defendant in plaintiff’s action for personal injuries.

At the time of his injury plaintiff was employed by Fort Wayne Corrugated Paper Company, hereafter referred to as Fort Wayne, at its plant in Chicago. He was one of a three-man crew operating a printer-slotter machine which had been manufactured by defendant. It had been installed in Fort Wayne’s plant approximately 19 months prior to the date of plaintiff’s injury.

The printer-slotter machine is described as being 11 feet, 4% inches in length and 13 feet, 2 inches wide. It will print and slot a corrugated paper sheet 42 inches in width and 94 inches long.

Plaintiff’s position was that of “first helper” to the operator and his job was to feed the corrugated sheets into the press, put ink in the rollers, check the stops and put dies on the die cylinders.

Walter J. Goettsch, called by plaintiff under section 60 of the Civil Practice Act (c 110, Ill Rev Stats) testified that he was senior vice president of the defendant, and was the salesman who sold the machine to Fort Wayne. He described the printer-slotter as one of defendant’s standard machines, entirely designed and engineered by defendant, and sold in the industry for the purpose of printing and slotting cardboard. The machine was shipped to Fort Wayne from defendant’s plant in Camden, New Jersey, and the electric components were supplied by Reliance Electrical and Engineering Company under defendant’s direction and purchase order. Included in the equipment which defendant furnished Fort Wayne, were stop or safety buttons designed to stop the machine, a safety bar to be mounted across the entrance to the roller area, and a microswitch which stopped the machine when the safety bar was lifted a fraction of an inch. The machine was equipped with a dynamic braking system which could be activated by various stop buttons and by the microswitch on the safety bar.

At the “feed-end” of the machine, where plaintiff was stationed, there are three stairs up to a catwalk. A passageway which gives access to the printing rollers on the machine forms a right angle with the catwalk. The stairs, the catwalk and the passageway are constructed of steel. The safety bar is installed across the entrance to the passageway, 27 inches above the floor of the catwalk. It is so mounted that when it is raised from the microswitch element, the dynamic braking system is activated. Once activated, the braking system can stop the rollers in a period of time ranging from a fraction of a second to several seconds, depending upon the speed at which the rollers were operating at the time.

Plaintiff testified that in order to prepare the machine for a run of cardboard he was required to lift the safety bar, remove the dies from the bottom roller, and staple on the new dies. That was the only time he was required to enter the passageway area.

On the date of the occurrence plaintiff had gone to work at 3:00 p. m. At about 7:00 p. m., after his lunch break, plaintiff was tightening some keys on the ink fountain. They had just finished an order, and the machine was running so that the ink in the printer could flow back to the fountain. This process took about 10 minutes, and when it was completed, plaintiff was required to clean out an ink trough above the fountain. He walked up the stairs to the entrance to the catwalk where rags were kept and saw a rag lying on the floor of the catwalk, stooped to pick it up, and as he pulled it toward him, part of the rag got caught in the roller and started pulling him toward the roller, he lifted the safety bar with his left hand, and at that time his right hand was “going into the roll, I let go of the bar and I grabbed with my left hand to try to pull my right hand out.” As the result of the injuries suffered, plaintiff’s arms were later amputated above the elbows.

Plaintiff’s complaint, as amended, charges defective design in that the machine was not equipped with adequate safety devices or guards.

Plaintiff’s first claim of error is that the court erred in excluding the testimony of plaintiff’s expert on the ground that he was not qualified.

The testimony elicited by interrogation of the witness shows that he is a personnel and safety director employed by a company which manufactures paper cartons and shipping containers. His employer produces corrugated paper shipping containers. He had been with his employer since 1935. He received his degree at the University of Illinois, Class of 1925, as a graduate in mechanical engineering. He is also charged with the safety and accident prevention of another plant operated by his employer. He has been a member of the pulp and paper section of the National Safety Council for 25 years, and a member of the Safety and Industrial Relations Committee of the Folding Paper Box Association of America. The function of the National Safety Council is to promote safety in all of the industries in America. It includes the printing industry.

After graduating from the University of Illinois, he worked for Western Electric for 6 years as a mechanical engineer in their machinery development division.

The National Safety Council publishes newsletters which are published and distributed monthly. He personally prepared some of these newsletters.

His company uses Langston printer-slotters, and he is also familiar with printer-slotter machines manufactured by other companies. He has seen Langston printer-slotter machines in operation at his employer’s plant and at other plants in the industry. He had not had anything to do with the design of the Langston printer-slotter machine.

The witness was shown a photograph of the machine, and described it as being similar to the Langston machine in operation in his company’s plant at the approximate date of plaintiff’s injury.

At this point the court sustained objections to a series of questions, and plaintiff’s counsel made an offer of proof.

In the offer of proof, plaintiff’s counsel stated that if recalled, the witness would testify that he was personally in charge of printer-slotter presses similar and identical to the one involved in this case, and on which the plaintiff was injured, that he had dealt with this type of machinery for over 25 years by checking them for their safety features, that he had occasion to check not only the plants of his employer, but other plants, and to check similar machines manufactured and used by other companies which operated on the same rotary principle, that he had personally prepared and published articles and bulletins which had disseminated safety information to the manufacturers and users of the machines, and that the defendant was one of the companies to whom this information had been sent suggesting and advising certain safety features be adopted and incorporated in the design and manufacture of the machine; that at the time the machine in question was designed, manufactured and sold to Fort Wayne, there were several types of safety mechanisms which could be used, none of which would interfere with the operation of the machine, one being a wire mesh gate so mounted that entry to the roller passageway could not be gained without unlocking the gate, and also attached to a microswitch comparable to the one used with the safety bar in this case, so that the machine would stop as soon as the gate was unlocked.

He would also testify that there was an electronic eye which would not interfere in the operation of the machine or in the production of the product which should or could have been attached to the entrance of the areaway so that if any person, either deliberately or accidentally passed the electric eye, the machine would automatically stop. He would also testify that there were wire mesh guards available, which had been manufactured, and which could have been fabricated and placed over the rollers, which would not in any way interfere with the operation of the machine or the production, and the guards would be placed over the bottom rollers, which are the most dangerous.

He would also testify that he had personally designed these wire mesh guards to be affixed over the roller areas so that a person could not come in contact with the rollers, and the witness personally had supervised the installation of approximately 400 to 500 of these wire mesh guards.

He would testify that the machine in question was an imminently and inherently dangerous product, that in the bulletins to which he had previously referred, the manufacturers were notified of the hazard incurred because of the bottom cylinder coming in contact with the one immediately above it, that this was the most hazardous part of the machine, and they were cautioned and warned to supply proper guards so as to protect workmen from such injuries.

His testimony would show that all of these safety features were available at the time that this machine was manufactured, that they were in fact at that time used by many operators of these machines, and were used by the manufacturers as well as by the suppliers.

The witness would also testify that he had made a study of safety in connection with the operation of heavy machinery, and in particular of the kind or character of guards or safety devices that should be affixed to machines, and the standards applicable at the time of the occurrence provided for one or more of the safety features on machines such as these.

He would also testify that the safety bar which guarded the passageway area was not an adequate safety device, that it was a makeshift affair, and was of itself no protection to any person who accidentally was pulled into the machine, that it was extremely hazardous, and the machine, even after the bar was raised, would run for several cycles extended to 4 to 6 seconds, that all of the items above referred to with reference to safety were on the market at the time of the manufacture of the machine, were easily available, and their cost was negligible compared to the cost of the machine.

He would testify that there were two basic categories for safety devices for this type of machinery, the first being designed to prevent individuals from entering into or near the moving parts, the second being the electronic eye which would stop the machine, and another item was the guard over the in-running cylinders or rollers which would prevent individuals from coming into contact with the moving parts.

At the close of the offer of proof, defense counsel objected as follows:

“First, I object because the man was not qualified as an expert in his field and that particular expert field as established by his own admission, he was a personnel man and safety director for one office of Container Corporation, which as I understand it, it is a successor of Fort Wayne, in this case.
“And, I understand that the particular devices this man may have designed for his own plants are not in effect to this date, they have proved to be ineffectual and were removed from the devices and technically from whatever printer-slotter he put them on in his own plants and the standard set by the Langston Company was the only manufacturer of solid printer-slotter presses, which are involved here; that no other manufacturer of solid printer-slotters has come up with any such innovation as counsel has suggested here.
“Counsel has pointed out that this man has designed five such devices for over five hundred such machines and we only made five hundred and fourteen such machines in the entire country up to 1956, at the time of the accident and all of counsel’s offer of proof is vague and confusing as to whether or not the National Safety Council does not control or affect the manufacture of the presses or printerslotters and this literature goes out to the manufacturers of paper cartons in the paper industry and there is no proof that such notices were received by or had any effect upon the particular design on the machine or any better than the particular devices employed here. There is absolutely no evidence here that anything would stop a printer-slotter instantaneously.
“Indeed, I understand the facts to be that machines of this type, if they can be stopped within a fraction of a second up to three, four or five seconds is a miraculous situation; and there is no testimony here whatsoever, except for Counsel’s suggestion did they stop instantaneously, and would be a conclusion on the part of this witness.
“And the fact is that the Fort Wayne Company, which is the successor today is still using the particular machine involved today and still used today by the Fort Wayne successor without the devices that counsel suggests. In fact, if they had such knowledge they would have requested such devices and we have no such demands upon the Langston Company by our customers as such.
“In short, your Honor, I suggest that the offer of proof is objectionable for the reasons stated and should be striken (sic) from the record.”

In Mahlstedt v. Ideal Lighting Co., 271 Ill 154, 110 NE 795, the Supreme Court at page 171, said: “Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury-in determining the question at issue. Expert testimony is proper when the subject matter of the inquiry is of such a character that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected therewith.”

As to the qualifications of an expert, in Bonato v. Peabody Coal Co., 248 Ill 422, 94 NE 69, at page 426, the court said: “Whether a witness is competent to give an expert opinion is a question of fact for the trial judge and can only be reviewed when there has been a clear abuse of discretion.” In People v. Jennings, 252 Ill 534, 96 NE2d 1077, at page 550, the court said: “The question of the qualification of an expert rests largely in the discretion of the trial court. (Bonato v. Peabody Coal Co., 248 Ill 422, and cases cited.) There can be no arbitrary or fixed test but necessarily only a relative one, dependent somewhat on the subject and the particular witness.”

In Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733, at page 516, the Supreme Court said: “While there has been a reluctance to permit expert testimony on many matters on the basis that it invades the province of the jury, confuses the issues and usurps the function of the jury, the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony.”

An excellent guide for determination of the issue of abuse of discretion is found in In re A. Roth Co., Inc., 125 F2d 396, wherein the Court of Appeals for the Seventh Circuit, speaking through Judge Kerner, said at page 398: “Determination of abuse of discretion involves the exercise, by us, of sound judgment upon the facts. If there is controversy as to facts, and if the facts themselves largely define the wisdom of the discretion, review by the appellate court is seldom effective and it should not be. Then appellate court’s review does not include trial court’s discretion.

“If, however, the facts are not in dispute and it is a question of sound judgment based upon the undisputed facts which are before us as fully as before the trial judge, we are in about as good a position as he to say whether the discretion has been wisely exercised. In short, both trial and appellate courts have the same situation upon which to exercise the same sound judgment.”

At the stage of the proceedings at which the trial court made its ruling, there was no factual controversy presented. At that point the testimony of the witness was not disputed, and the court rejected the evidence outlined in the offer of proof. Under the circumstances a court of review, as stated in In re A. Roth, Inc., supra, is in as good a position as the trial court to determine the qualifications of the witness.

From our review of the testimony and the offer of proof, we find that the witness clearly possessed knowledge and experience sufficient to qualify him as an expert. The matters set forth in the objection to the offer go to the weight of the witness’ testimony, not his qualifications. In excluding his testimony, the trial court abused its discretion.

Defendant contends that assuming arguendo the witness was shown to be qualified, the preferred testimony was inadmissible for the reason that it was “incompetent.” Defendant argues further that the offer of proof was too broad, included much that was not admissible and it was not the burden of the trial court to separate the admissible evidence from the inadmissible. Citing Day v. Barber-Colman Co., 10 Ill App2d 494, 135 NE2d 231, and Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 163 NE2d 425, it argues that testimony that there were other safety devices available is immaterial, “it is not in itself negligence to supply a certain type of machine though other types of machines might conceivably be safer,” and “The issue was not what other types of devices and appliances might have conceivably been safer; evidence to this effect is inadmissible.”

An examination of the opinion in Day v. Barber-Col-man, supra, shows the evidence there to have been entirely different from that set forth in plaintiff’s offer of proof. In reviewing the testimony of Kelton, the expert witness, the court said, at page 501, “There is no evidence that at that time any different general design for a door of this type than the one here involved was in common or accepted use in the industry, or that this design had been found to be unsafe. His testimony as to some possible change in design related to a matter apparently occurring to him some years after this incident.” At page 506, the court said: “No different general design for a door of this type than the design here involved was in common use in the industry at that time, and this design had not been found to be unsafe, so far as the record here indicates.”

In Watts, the Supreme Court, reviewing the testimony of plaintiffs’ expert said at page 229: “Plaintiffs’ expert neither examined the glass or the installation involved, nor testified as to the strength or suitability of the plate glass for the use to which it was put.” At page 231, the court said: “However, there is no evidence that a plate glass installation was not customary, or that it was inherently dangerous. On the contrary, it appears from the record that such plate glass installation was customary and usual while the use of tempered glass was exceptional. There is no evidence concerning the actual strength of plate glass, or of its unsuitability for the purpose used.”

There is no indication in either opinion that evidence was offered as to standards in the industry, use of other materials or devices, or that the defendants knew or should have known of the then existing state of the art in the industries in which the defendants operated.

The cases are clearly distinguishable and do not support defendant’s argument.

A manufacturer is held to the degree of knowledge and skill of experts, Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill App2d 315, 229 NE2d 684. This standard imposes upon the manufacturer the duty of an expert to keep abreast and informed of the developments in his field, including safety devices and equipment used in his industry with the type of products he manufactures.

In Darling v. Charleston Community Hospital, 33 Ill2d 326, 211 NE2d 253, the Supreme Court, at page 331, said: “As has been seen, the defendant argues in this court that its duty is to be determined by the care customarily offered by hospitals generally in its community. Strictly speaking, the question is not one of duty, for ‘. . . in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.’ (Prosser on Torts, 3rd ed at 331.) ‘By the great weight of modern American authority a custom either to take or to omit a precaution is generally admissible as bearing on what is proper conduct under the circumstances, but is not conclusive.’ (2 Harper and James, The Law of Torts, sec 17.3, at 977-78.) Custom is relevant in determining the standard of care because it illustrates what is feasible, it suggests a body of knowledge of which the defendant should be aware, and it warns of the possibility of far-reaching consequences if a higher standard is required. (Morris, Custom and Negligence, 42 Colum L Rev 1147 (1942); 2 Wigmore, Evidence, 3rd ed secs 459, 461.) But custom should never be conclusive. As Judge Learned Hand said, ‘There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. . . . Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.’ The T. J. Hooper (2d cir 1932), 60 F2d 737, 740.

“In the present case the regulations, standards, and by-laws which the plaintiff introduced into evidence, performed much the same function as did evidence of custom. This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known. It did not conclusively determine the standard of care and the jury was not instructed that it did.”

The evidence contained in the offer of proof was admissible to show what was feasible, and what the defendant knew or should have known. Having determined that the proffered evidence was admissible, we reach defendant’s contentions with respect to the form and adequacy of the offer of proof, and whether, because it allegedly contained matters not admissible, the court properly rejected it.

The purpose of an offer of proof is to indicate to the trial court, opposing counsel, and a reviewing court, the substance of the evidence expected to be offered, Schusler v. Fletcher, 74 Ill App2d 249, 219 NE2d 588, and the offer was adequate for that purpose. The alleged deficiencies in the offer now argued by defendant were not the reasons for the court’s rejection of the evidence. Plaintiff was not required to modify the offer of proof to anticipate the objections now presented, and to do so in the face of its rejection on the ground of the witness’ lack of qualification would, indeed, have been a useless act. This, the law does not require. Bartholow v. Davies, 276 Ill 505, 114 NE 1017; Zaremba v. Skurdialis, 395 Ill 437, 70 NE2d 617.

Plaintiff contends that the court erred in the admission of certain photographs offered by defendant for the reason that they are distorted and misleading. We do not further discuss this claim of error for the reason that upon retrial, Hammer v. Slive, 35 Ill App2d 447, 183 NE2d 49, and Brennan v. Leshyn, 51 Ill App2d 132, 201 NE 2d 167, provide sufficient guidance for the proper exercise of judicial discretion with respect to these exhibits.

We do not reach plaintiff’s contentions with respect to alleged errors in the instructions. In large part, the errors were the result of the erroneous rulings on the evidence, and in view of the decisions in the field of manufacturers’ liability since the trial of this case, it is unlikely that the same questions will arise upon retrial.

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

Judgment reversed and cause remanded for new trial.

EBERSPACHER and MORAN, JJ., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Mattox, Otherwise Called Richard Maddox, (Impleaded), Defendant-Appellant.
    Gen. No. 51,694.
    First District, Second Division.
    May 28, 1968.
    Manning K. Leiter, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, David B. Selig, and Patrick Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the murder of Harvey Weinstein and sentenced to a term of twenty to thirty years in the penitentiary. On this appeal he maintains that his guilt was not proven beyond a reasonable doubt in that the body alleged to have been that of Harvey Weinstein was not proven to have in fact been his body.

During the early morning of Sunday, September 29, 1963, a motorist driving on the Calumet Expressway observed an automobile afire in a dumping area a few hundred feet from the Expressway near 138th Street in south Cook County. The police were summoned and the automobile was found to contain the remains of a human body, burned beyond physical recognition, behind the steering wheel in the front seat. A funeral director removed the body to a nearby hospital, where it was pronounced dead, and then transported the body to the Cook County Morgue.

On the following day, Monday, an autopsy was performed on a burned body at the morgue by a Coroner’s pathologist, Dr. Wagner. The doctor testified that it was his opinion that the deceased had been dead before being partially consumed by fire, there being evidence of death having been caused by a fractured skull inflicted by a blow from a blunt instrument, whereas there was no evidence of death by burning.

Dr. Zullo, a dentist, testified that he inspected and made a chart of the dental structure of the burned body. After comparing his chart with dental charts submitted by two dentists who treated Harvey Weinstein during life, Drs. Gelberd and Pallotto, Dr. Zullo testified that it was his opinion that all three charts were substantially identical and that the burned body whose teeth he examined was that of Harvey Weinstein. The only difference between the information contained in the charts was that the chart of one of the treating dentists depicted a gold inlay filling where the other two charts depicted a silver inlay filling.

Meyer Weinstein, father of Harvey Weinstein, testified that he was taken to the scene of the burning automobile by police officers on the morning in question and that he saw his son’s automobile “burning on the lot there.” The witness identified a burned automobile from photographs as the automobile owned by his son. The witness also stated at one point that the automobile owned by his son was a Chevrolet station wagon, but later testified that it was an Oldsmobile station wagon, which Harvey Weinstein in fact did own.

Mr. and Mrs. George Graziani, mutual acquaintances of defendant and the wife of Harvey Weinstein, testified that defendant appeared at their home in Steger, Illinois, at dawn on the morning of September 29, 1963, dressed only in pants and shoes. Both witnesses testified that defendant stated he was “in trouble” and Mr. Graziani further stated that defendant said something to the effect that “I got Harvey.”

Defendant contends that his guilt was not proven beyond a reasonable doubt inasmuch as the body alleged to have been that of Harvey Weinstein was not proven to have in fact been his body. We disagree.

The argument is advanced that the dental chart comparison made by Dr. Zullo was insufficient to identify the burned body as being that of Harvey Weinstein. Although a question of first impression in this State, it cannot be seriously disputed that a dental structure may constitute a means of identifying a deceased person, otherwise unrecognizable, where there is some dental record of that person with which the structure may be compared. Comparison of dental structures falls within the category of circumstantial evidence and involves the question of weight and credibility, rather than that of competency. See generally 86 ALR2d 722, et seq.; e. g., People v. Donaldson, 8 Ill2d 510, 515, 134 NE2d 776; People v. Jones, 382 Ill 603, 48 NE2d 364.

The charts of Harvey Weinstein’s dental structure compiled by Drs. Gelberd and Pallotto between 1957 or 1958 and February 1963, differed from each other in only one minor respect and substantially conformed to the chart made by Dr. Zullo of the dental structure of the burned body. All three charts showed the dental structure to have been missing six specific teeth, three upper and three lower; thirteen specific teeth of the remaining twenty-six were “restored,” eight upper and five lower; the “restorations” included three specific crowns in the upper right jaw forming a fixed dental bridge, gold inlay fillings in specific teeth, a specific porcelain inlay filling, and the balance of silver inlay fillings in specific teeth. The three charts therefore compared identically, with the exception of a gold inlay filling which Dr. Pallotto testified he inserted in a tooth in February 1963, which tooth the other charts showed as containing a silver inlay filling. It cannot be said that this single, minute discrepancy so affected the credibility of the chart comparison as to have rendered it wholly meaningless as a means of identification.

Defendant nevertheless maintains that Dr. Zullo’s comparison of the dental charts had no value for identification purposes for the reason that he failed to relate the probabilities upon which he based his opinion that the dental structure which he examined and charted could have been that of Harvey Weinstein only and of no other person. Defendant’s position in this regard is based upon an article on dental identification appearing in Forensic Odontology (American Elsevier Pub. Co., Inc., 1966, at pp 29-30,) which consists of a study conducted by Costa Gustafson of the dental records of 775 Swedish school children between the ages of ten years and sixteen years; approximately nine per centum of the children surveyed were found to have had identical dental records. However, not only did that study involve persons in their tender years, whereas Harvey Weinstein was a man in early middle age who had undergone considerable dental work during his lifetime, but this was a matter of weight and credibility for the trial judge. Furthermore, on the cross-examination of Dr. Zullo, defendant did not attempt to determine what probability existed that the dental structure of the burned body which Dr. Zullo examined was not that of Harvey Weinstein.

Defendant also maintains that the State’s evidence failed to trace the body found in the burning automobile to the burned body examined at the morgue and identified as that of Harvey Weinstein the following day. The funeral director called to the scene of the burning automobile, which Meyer Weinstein testified was his son’s automobile, testified that on September 29, 1963, he transported the burned body found in that automobile to a hospital where it was pronounced dead, and then delivered it to the County Morgue. Although Mr. Weinstein did at first testify that his son owned a Chevrolet automobile and later stated that he owned an Oldsmobile automobile, he unequivocally testified that he witnessed his son’s automobile afire and further identified the automobile at trial from photographs of a burned automobile. Dr. Wagner, the examining pathologist, testified he believed he examined only one burned body at the County Morgue on September 30, 1963, the next working day following delivery to the morgue of the body found in the Weinstein automobile. The same body was then identified by Dr. Zullo from dental report comparisons as that of Harvey Weinstein. It should also be noted that blood taken from the lung of the burned body was of the same type as that found spattered about the home of Harvey Weinstein by police investigators after September 29, 1963. This evidence constituted the necessary connection between the body found in the burning automobile and the body examined at the morgue the following day which was identified as that of Harvey Weinstein.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jorge Suarez, Defendant-Appellant.
    Gen. No. 51,838.
    First District, Second Division.
    May 28, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Jorge Suarez, was indicted for robbery and aggravated battery. At a bench trial he was found guilty of both offenses and sentenced to the Illinois State Penitentiary for two to five years on each charge, the sentences to run concurrently. Defendant appeals, contending that his constitutional right to a jury trial was not understandingly and knowingly waived, and that the State failed to prove him guilty beyond a reasonable doubt.

Defendant first contends that he did not understandingly waive his right to a trial by jury.

When the case was called for trial, and before defendant signed the jury waiver, the following colloquy took place in open court:

THE COURT: “Ready?”
STATES ATTORNEY: “The State is ready, your Honor.”
THE COURT: “The State is ready. Is this a bench or jury?”
DEFENSE COUNSEL: “This is a bench trial.”
THE COURT: “A bench trial. We will pass it until 10:30 or thereabouts.”
(After an interval of time, the following proceedings took place.)
DEFENSE COUNSEL: “I have talked to the defendant, Jorge Suarez, and have explained to him his constitutional right to a trial by jury and also explained to him his right to waive that right and submit the cause to hearing before the Court and at this time I would ask Mr. Suarez to sign this jury waiver.”
THE COURT: “You know what a jury trial is, Mr. Suarez, putting twelve people in the box there and they listen to the witnesses and they come in with a verdict of guilty or not guilty.”
“By signing that document it means that the judge listens to the witnesses and he enters a finding of guilty or not guilty rather than the jury. Do you understand that?”
THE DEFENDANT: “I understand it a little bit.”
DEFENSE COUNSEL: “At this time I present to the court the jury waiver signed.”
THE COURT: “Let the waiver be recorded.”

There is no specific or defined formula to follow in determining whether a jury waiver is understandingly made, and the determination must therefore rest upon the facts of each particular case. People v. Crable, 80 Ill App2d 243, 225 NE2d 76 (1967); People v. Wesley, 30 Ill2d 131, 195 NE2d 708 (1964).

Counsel for defendant argues that defendant’s reply to the trial judge’s inquiry indicated that he did not knowingly waive his right to a jury trial. We do not agree. Defendant’s attorney informed the court that he had explained to the defendant his constitutional right to a jury trial. The court then gave a detailed but simple definition of a trial by jury and the effect of a waiver of that right. Defendant then signed the jury waiver. There is no allegation that defendant was illiterate. While his answer to the court’s question was ambiguous, it did not show lack of comprehension of his rights.

In People v. Palmer, 27 Ill2d 311, 189 NE2d 265 (1963), defense counsel first stated that he was not sure whether he wanted a bench or jury trial, but after a conference with the state’s attorney, announced that it would be a bench trial. The court then questioned the defendant as to whether he wished to waive the jury, and asked him whether his counsel had explained his right to a jury trial, his right to waive the jury and the effect of such a waiver. Defendant replied that he didn’t know about such things. His counsel then said: “We’ll say yes for the record. I explained that to you didn’t I?” The defendant answered: “Yes you did.” The court held that the defendant had expressly and knowingly waived his right to a jury trial.

Defendant cites People v. Turner, 80 Ill App2d 146, 225 NE2d 65 (1967), wherein the court ruled that defendant had not knowingly waived his right to a jury trial. It is clearly distinguishable from the case at bar. In Turner, defendant was illiterate, and he stated that he did not understand the process. The court did not instruct defendant as to his right to a jury trial, and while he ordered defense counsel to do so, there was no indication in the record as to that explanation. In the instant case, the court gave a clear explanation of defendant’s right to a jury trial after defense counsel made a positive statement that he had advised defendant of that right.

We find that the trial court was correct in its determination that the right to a trial by jury was expressly and understandingly waived.

Defendant next urges that the State failed to prove him guilty beyond a reasonable doubt. A summary of the facts follows.

The complainant, Zbigniew Pichor, testified that on the evening of April 10, 1966, after visiting a friend, he had taken the wrong bus to go home. He waited for another bus, then entered a tavern located at 1148 N. Clark Street, Chicago. Pichor, who had lived in this country for four years, spoke only Polish and testified at trial through an interpreter. He remained in the tavern for one to two hours, drinking two beers during that time. In paying for the drinks, Pichor placed his wallet containing $12 on the bar. He also had drunk two beers earlier at his friend’s home. Defendant, who was in the tavern when Pichor arrived, was sitting in the corner of the tavern about 15 feet away from Pichor who sat near the door. There Were about ten other customers in the tavern. Pichor testified that he did not have any conversation with defendant in the tavern, but that a blond woman talked to him. However, since he did not speak English, he could not understand her. He also saw defendant talking to the same woman. Pichor left the tavern near midnight intending to cross the street to catch the bus. At this time he saw defendant along with another man leave the tavern. Pichor then testified that defendant asked him for $2, and that when he refused and tried to walk across the street he was hit on the head and lost consciousness. At the moment he was struck, defendant was a half step behind him. The other man was off to the side. He did not see the defendant’s face during the attack, but he saw his hands moving and beating him. He stated that it was probably the defendant who struck him. He did not see anyone take anything from him because he became unconscious. He regained consciousness in the hospital where he discovered that his watch, wallet and $12 had been taken from him. He remained in the hospital for over five weeks, sustained permanent injuries, and had to have plastic surgery performed on his face.

Officer Thomas O’Malley testified that he found Pichor lying unconscious in a gangway. He also testified that he could not detect any odor of alcohol on Pichor’s breath. Officer Frank Blasch testified that he showed Pichor an album of pictures, from which he identified a picture of defendant as his assailant. Defendant was arrested on April 20,1966.

William Ridlon was the only witness for the defense. He testified that he was a bartender at the tavern. He was not on duty during the evening of April 10,1966, but came to the tavern at about 11:00 p. m. He saw defendant, whom he knew for about two or three years, in the tavern accompanied by a large blond woman. Pichor came in a few minutes after defendant arrived. There was a disagreement between defendant and Pichor. Defendant told the witness that Pichor had followed him and the girl from another tavern, apparently interested in defendant’s girl friend. Pichor was talking to both defendant and the girl. Ridlon also testified that Pichor was intoxicated, boisterous and annoying to the other patrons. Defendant and the girl left the tavern, and Pich- or departed five to ten minutes later. Ridlon did not see any of the parties after they left the tavern. Ridlon had been convicted of burglary in 1965 and had been placed on probation for three years.

“Where the only question is one of identification, the testimony of one credible witness, if positive, is sufficient to convict, and where a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge, and unless the judgment is found to rest on doubtful, improbable or unsatisfactory evidence or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below.” People v. Garrett, 82 Ill App 2d 192, 226 NE2d 429 (1967). The identification of the accused may be established by circumstantial evidence. People v. Fitzpatrick, 359 Ill 363, 194 NE 545 (1935). To warrant a conviction on circumstantial evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of his innocence. People v. Dougard, 16 Ill2d 603, 158 NE2d 596 (1959). Defendant argues that he was not proved guilty beyond a reasonable doubt because Pichor’s identification as to who struck him was doubtful, and because he did not see anyone take his money or property. The victim testified that the defendant asked him for money, and that when he refused and turned away, he was immediately struck and beaten. He also testified that at that moment, defendant was a half step behind him and he could see his hands beating him. Although he stated that he could not see defendant’s face during the assault, this was a positive identification of the defendant as the assailant. It is clear that the only possible assailant was the defendant. The victim had $12, his watch and wallet taken from him. Pichor’s testimony that he was struck and knocked unconscious immediately after he had refused to give defendant money was evidence of a convincing and reasonable certainty that it was the defendant who robbed him. While no one saw the victim’s money and property taken from his person, we find that there was sufficient credible circumstantial evidence to support the conviction of robbery.

Defendant also points to Ridlon’s testimony that the victim was intoxicated and had followed defendant to the tavern to show that there were conflicts in the evidence. However, the credibility of the witnesses and the resolution of such conflicts were clearly within the province of the trial court.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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