author:
JUSTICE HEIPLE
      JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE HARRIS, Defendant-Appellant.
    Third District
    No. 82—422
    Opinion filed December 23, 1982.
    STOUDER, J., specially concurring.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Willie Harris, convicted and sentenced for armed violence and escape, raises a single issue on appeal. It is that he was denied a fair trial due to the prosecutor’s improper closing arguments.

At trial, the defendant did not object to the prosecutor’s remarks nor did he raise any objection in his post-trial motion. Ordinarily this would result in a waiver of the issue on appeal. But since the waiver rule is more a rule of administration than jurisdiction, we choose to discuss the merits of the defendant’s appeal.

The defendant contends that the following remarks of the prosecutor had the effect of lessening the importance of the State’s burden of proof.

“Mr. Riddle first indicated to you that, yes, the People have the burden of proof. I want you to know that I accept it for the People; that is our system of justice, that’s the way we would have it.
I further suggest to you that you should not enlarge it beyond a reasonable doubt. I would further suggest to you, for the People, that there’s nothing new about the burden of proof, its been with us for a number of years. Juries, for a long time, have used that burden before finding any defendant guilty. In any way, that burden must be satisfied.”

Although the defendant cites two recent cases which found similar remarks to be improper, those cases were not reversed for that reason. Therefore, any discussion of those remarks was dicta. (See People v. Martinez (1979), 76 Ill. App. 3d 280; People v. Frazier (1982), 107 Ill. App. 3d 1096.) In People v. Smith, on the other hand, the court was also confronted with remarks similar to those in the case at bar. (People v. Smith (1981), 93 Ill. App. 3d 1133.) The court in Smith held that the remarks did not directly inpugn the reasonable doubt standard and that the prosecutor’s statement was essentially a superfluous restatement of the standard subsumed in the entirety of his closing argument.

What were the remarks in Martinez, Frazier and Smith?

In Martinez, the prosecutor said that the State had “no quarrel” about its burden of proving the defendant’s guilt beyond a reasonable doubt, and that people “throughout the United States *** are being found guilty beyond a reasonable doubt every day of the week.” 76 Ill. App. 3d 280, 285.

In Frazier, the prosecutor said that “there is nothing magical about finding someone guilty beyond a reasonable doubt. It is done every day in courts all over the country.” 107 Ill. App. 3d 1096, 1101.

In Smith, the prosecutor argued that, “Every defendant, be he a thief, or be he a murderer, who has ever been convicted in the 200 years of this country, was proved guilty beyond a reasonable doubt.” 93 Ill. App. 3d 1133, 1139.

The appellate court thought the remarks in Martinez and Frazier were improper. The appellate court thought the remarks in Smith were not improper.

Although the splitting of hairs and the drawing of fine distinctions are popular judicial endeavors, such techniques are unavailing in the instant case. It is impossible to differentiate Martinez, Frazier and Smith from each other or from the case at hand. A search for reported cases in other jurisdictions on this point produced no results. Our supreme court has not addressed the issue.

The view of such remarks is, like beauty, in the eye of the beholder. Having said that, it is to be further noted that we prefer the result in People v. Smith. We similarly believe that in the instant case, the remarks did not directly inpugn the reasonable-doubt standard. Moreover, the prosecutor’s statement was essentially a superfluous restatement of the standard subsumed in the entirety of his closing argument. The remarks were never repeated or reemphasized. There was no attempt in the present case to shift the burden of proof to the defendant, nor did the prosecutor attempt to define or rephrase the reasonable doubt standard. Most importantly, the prosecutor’s argument did not cloud or distort the fundamental principle that a person is innocent until the State proves him guilty beyond a reasonable doubt and that this burden rests upon the State throughout the entire trial.

In short, we believe that the prosecutor’s comments fell well within the bounds of proper argument.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

I agree with the result reached by my colleagues but I do not agree with the reasoning. In my opinion the remarks of the prosecuting attorney during closing argument were error but harmless. I would therefore disagree with the conclusion of my colleagues which approve the remarks in the guise of vigorous argument.

I believe that to some extent the reasoning of my colleagues is based on a misreading of People v. Smith (1981), 93 Ill. App. 3d 1133, 418 N.E.2d 172, since it not only fails to support the reasoning of my colleagues but actually supports a contrary view of the arguments. I agree that in People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86, and People v. Frazier (1982), 107 Ill. App. 3d 1096, 438 N.E.2d 623, where similar arguments are held to be improper, the reasoning in the opinions was dicta since in each case the judgments would have been reversed on other grounds. Nevertheless, the opinions are of some significance on the issue particularly since the Martinez opinion was, I believe, followed in Smith. Likewise a similar final argument was held improper but harmless error in People v. Hamilton (1980), 80 Ill. App. 3d 794, 400 N.E.2d 599.

In People v. Smith (1981), 93 Ill. App. 3d 1133, 418 N.E.2d 172, the court observed:

“In both Hamilton and Martinez, the prosecutor’s comments directly impugned the reasonable doubt standard more so than did the statement at bar, which was essentially a superfluous restatement of the standard. As it was contained in an unemphasized remark subsumed in the entirety of the prosecutor’s arguments, the statement does not justify reversal.” (93 Ill. App. 3d 1133, 1139.)

Thus in Smith the court does not approve the final argument made in that case but merely holds the argument was not a sufficient reason for reversal.

Each of the four cases referred to in this opinion supports the general principle that arguments of the type involved in this case do improperly tend to diminish or otherwise detract from the burden of proof required of the prosecution in a criminal case. I doubt that this improper argument standing alone would likely result in reversible error, but when considered in the context of other occurrences during a trial there might be a different result when considered with other errors. Consequently, I think it is a mistake to approve such arguments as the majority has done.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
      In re THE MARRIAGE OF VIRGIL KEITH CLARK, Petitioner-Appellant, and SANDRA K. CLARK, Respondent-Appellee.
    Third District
    No. 82—411
    Opinion filed January 11, 1983.
    William J. O’Connor, of Chicago, for appellant.
    Gary L. Brown, of Butz, Mortell, Jaffe, Smith, O’Connor & Brown, of Kankakee, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The petitioner, Virgil Keith Clark, appeals from an order denying his petition for termination of maintenance payments to the respondent, Sandra K. Clark. The petitioner’s request for termination of payments is based on alleged cohabitation by the respondent on a resident, continuing conjugal basis. We affirm the decision of the lower court.

Section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (hereafter the Act) (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)) provides that, unless otherwise agreed by the parties, the obligation to pay future maintenance is terminated if “the party receiving maintenance, cohabits with another person on a resident, continuing conjugal basis.” The evidence in the instant case clearly established a resident, conjugal relationship. However, in interpreting the Act the courts of this State have held that a de facto husband-wife relationship must be shown in order to demonstrate cohabitation. In re Support of Halford (1979), 70 Ill. App. 3d 609, 388 N.E.2d 1131; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469.

In the case at bar, the evidence proved that Mrs. Clark’s paramour, Larry Cox, bought groceries for Mrs. Clark and her children and bought some clothing for Mrs. Clark. Cox took his meals with Mrs. Clark and her children and worked with Mrs. Clark to clean and maintain their residence. Mrs. Clark did his laundry and cooked his meals. Cox moved into Mrs. Clark’s residence in October and left in January. After moving out, he phoned Mrs. Clark weekly. During the Christmas holidays, the gifts to Mrs. Clark’s children were signed “Larry and Mom.” Mrs. Clark spent the holidays at Cox’s parents’ home.

The trial court found that this was insufficient to satisfy the requirements of the Act. The modification of maintenance payments is within the court’s discretion, and its order will not be reversed on appeal absent an abuse of that discretion. Miller v. Miller (1978), 65 Ill. App. 3d 844, 382 N.E.2d 823.

We find no abuse of discretion by the trial court. The evidence is insufficient to establish cohabitation on a continuing basis.

The petitioner asserts on appeal that denial of his petition to terminate maintenance violates public policy by encouraging cohabitation without marriage. However, the legislative intent behind the Act does not appear to be an attempt to control public morals. The concern is not the morality of conduct but the recipient’s need for support. In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 1131.

The trial court relied on the Bramson case in reaching its decision. We, too, rely on Bramson in stating that by our opinion we do not approve or condone Mrs. Clark’s living arrangement; rather, we conclude only that her conduct does not fall within the provisions of section 510(b) of the Act.

The decision of the circuit court is supported by the evidence and is therefore affirmed.

Affirmed.

STOUDER and SCOTT, 33., concur.


text:
      In re ESTATE OF LUELLA S. HALE, Deceased.—(John Castelli, Adm’r of the Estate of Luella S. Hale, Petitioner-Appellee, v. Russell Castelli, Respondent-Appellant.)
    Third District
    No. 82—501
    Opinion filed January 11, 1983.

      John J. Zerboglio, of Coal City, for appellant.
    John V. Hanson, of Hanson and Hanson, of Morris, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is a case of first impression. It requires that we determine whether the payment of funeral and other expenses for a decedent may properly be used to offset the judgment in a citation proceeding when the legatee who incurred those expenses used property of the estate to meet those expenses, acting in the belief that he was also the executor of decedent’s estate. We hold that such expenses may properly be used to offset a judgment ordering the legatee to surrender estate properties in the legatee’s possession to the actual executor.

Respondent, Russell Castelli, and petitioner, John Castelli, are the sons of the decedent, Luella S. Hale, who died on July 3, 1981. At the time of her death, decedent held a checking account containing $1,080 and a $4,000 certificate of deposit in joint tenancy with the respondent. The remainder of the estate consisted of a car and household possessions.

Although the respondent was named executor in the will, he never instituted proceedings to admit the will to probate. Instead, he paid decedent’s funeral and medical bills from the contents of the checking account and the proceeds from the sale of the decedent’s air conditioner. The funeral expenses alone totaled $1,253, while the contents of the checking account together with the proceeds from the air conditioner totaled $1,380. The remaining debts of the decedent were paid with the respondent’s personal funds.

On December 3, 1981, the petitioner filed a petition to probate the will of the decedent. The will was admitted to probate, and the petitioner was appointed administrator of his mother’s estate. As administrator, he also instituted citation proceedings against the respondent, challenging the validity of the joint tenancy accounts. On December 7, 1981, a claim date was filed. The respondent failed to answer in the citation proceedings. The court ruled that the certificate of deposit was the property of the respondent while the contents of the checking account as well as all household possessions were the property of the estate. The decedent’s will directed that the estate be divided equally between the respondent and the petitioner.

On June 8, 1982, the respondent was ordered to deliver a sum of $1,380 to the estate, representing the total assets of the estate. Three days later, the respondent filed a motion with the trial court requesting that the court reduce the amount he was to deliver to the estate by the value of his payment of decedent’s funeral, medical and other bills. It is from the denial of this motion that the respondent appeals.

The case at bar presents a situation in which one in possession of property from a decedent’s estate uses that property to satisfy the debts of the estate. A similar situation arose in McConnell v. McConnell (1880), 94 Ill. 295. There the widow used a bond belonging to the estate to satisfy the decedent’s debts. The court held that the widow was an executor de son tort and could therefore discharge herself, even against the demand of the rightful executor, by proving that she paid the decedent’s debts to the full amount of the decedent’s property in her possession.

To be sure, the statutory scheme for the settlement of estates in Illinois has been modified since the decision in McConnell. However, the equitable principles underlying the holding in McConnell remain viable even under the present statutory provisions.

The respondent meddled in the estate in good faith, believing that he was acting as executor in settling the decedent’s affairs. The importance of providing a proper funeral is established in Illinois both by case law and statute. Section 6 — 14 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llO1/^, par. 6 — 14) provides that: “Before issuance of letters to an executor his power extends to the carrying out of any gift of the decedent’s body or any part thereof, to the burial of the decedent, the payment of necessary funeral charges and the preservation of the estate; ***.” The courts in Illinois have consistently held . that the payment of funeral expenses is of such importance as to be considered as necessary as the costs of administration of the estate. In re Estate of Purefoy (1930), 256 Ill. App. 523; Stevens v. Williamson (1921), 222 Ill. App. 258.

The respondent acted, therefore, as the law expected him to. To deny the respondent’s motion to offset the value of the property he surrendered to the estate by the value of the payment he made on behalf of the decedent’s estate would be to penalize him for acting in what he believed to be his proper role as executor.

This case is distinguishable from those cited by the petitioner. The respondent is not filing a claim against estate property whose title has already been decided and which the executor has a duty to distribute. Rather, the respondent is asking that the court consider the respondent’s contribution towards the decedent’s funeral and medical expenses as a defense to an order requiring him to surrender property he already had in his possession and which he utilized on behalf of the estate.

Clearly, the wiser course would have been for the respondent to follow established statutory procedures in establishing his defense. However, the respondent only benefitted the estate and the petitioner by performing those duties required of an executor. Therefore, based upon the decision in McConnell v. McConnell (1980), 94 Ill. 295, and general equitable principles, we find that the respondent, as executor of the estate, should be allowed to prove the payment of expenses for the decedent’s funeral and medical bills and to offset the judgment ordering him to convey $1,380 to the petitioner by the amount so proven.

The judgment of the circuit court is reversed, and this case is remanded for further proceedings in accord with this decision.

Reversed and remanded.

BARRY, RJ., and STOUDER, J., concur.


author: JUSTICE SCOTT

text:
    KAIBAB INDUSTRIES, INC., Plaintiff-Appellee and Cross-Appellant, v. FAMILY READY HOMES, INC., et al., Defendants.—(Teren Waldsmith et al., Defendants-Appellants and Cross-Appellees; Northwest Bank of Peoria, Defendant-Cross-Appellee.)
    Third District
    No. 81—618
    Opinion filed January 7, 1983.
    Rehearing denied February 16,1983.

      Thomas E. Leiter, of Leiter, Leiter and Sahn, of Peoria, for appellants.
    Anthony P. Corsentino and Arthur J. Inman, both of Peoria, for appellee.
    Brent H. Gwillim, B. Douglas Stephens, Jr., and Nicholas J. Bertschy, all of Heyl, Royster, Voelker & Allen, of Peoria, for cross-appellee Northwest Bank of Peoria.
   JUSTICE SCOTT

delivered the opinion of the court:

This case had its birth in the judicial system almost nine years ago, and this is its second appearance before this court. (See Kaibab Industries, Inc. v. Family Ready Homes, Inc. (1978), 80 Ill. App. 3d 782, 372 N.E.2d 139.) The factual background of this litigation is set forth in the previous appeal; however, for the sake of clarity and continuity as we address the issues presented in this appeal we will reiterate the historical background of this appeal.

Kaibab, the plaintiff, obtained in Arizona a judgment for $133,269 against defendant B. E Waldsmith on December 10, 1973. This judgment was subsequently entered in Peoria County under the Uniform Enforcement of Judgments Act (Ill. Rev. Stat. 1975, ch. 77, par. 88 et seq.). In 1975 citation proceedings were filed in Tazewell County to discover assets which the citation defendants Gary Waldsmith, Teren Waldsmith, Linda Waldsmith, now Linda Burke, might have fraudulently received from their father, B. F. Waldsmith, the judgment debtor. Rooster I Corporation is also a citation defendant whose role in this litigation will be more amply set forth as we confront the issues presented for determination.

After several evidentiary hearings, final judgment was entered by the circuit court of Tazewell County, which found that certain parcels of real estate in the name of Linda Waldsmith were subject to the claim of Kaibab against her father, B. F. Waldsmith, but the judgment held that the general assets of the citation defendants were not subject to the claim of Kaibab.

On January 19, 1978 (rehearing denied April 12, 1978), this court affirmed the Tazewell court’s judgment as to the parcels of real estate but reversed the remainder of the judgment order and remanded the case to the trial court for further proceedings, to-wit, further discovery. This court in its 1978 opinion stated:

“The record does not indicate, however, whether any of the disputed funds were returned to one or both of defendant’s corporations, or whether defendant’s corporate holdings represent assets which could be reached by plaintiff. Therefore, in order to insure justice between the litigants, we believe the parties should be allowed further discovery, particularly as to the corporate records.” Kaibab Industries, Inc. v. Family Ready Homes, Inc. (1978), 80 Ill. App. 3d 782, 786.

After exhaustive discovery proceedings followed by a trial before the circuit court of Tazewell County, a judgment was entered for $103,507, being the amount of plaintiff Kaibab’s judgment less set-offs, together with statutory interest from and after November 17, 1974, against citation defendants Gary Waldsmith, Teren Waldsmith, Linda Waldsmith and Rooster I Corporation. The trial court refused to declare certain residential property (909 Oakwood in East Peoria) to be subject to the claim of Kaibab. The trial court further dismissed garnishment proceedings against the citation-garnishee defendant Northwest Bank of Peoria.

A further recital of facts will be set forth as the same becomes necessary for a proper understanding and determination of the issues raised in this appeal.

The citation defendants Teren Waldsmith, Gary Waldsmith and Linda Waldsmith assert that the trial court improperly entered judgment against them for indebtedness owed to the plaintiff Kaibab by a third party, namely, their father, B. E Waldsmith.

To place this issue in the proper perspective, the record discloses that the plaintiff Kaibab had a judgment against B. F. Waldsmith but repeated efforts to obtain service on the debtor for citation proceedings failed. At one time or another over the course of years the debtor B. F. Waldsmith was referred to as a wraith, a phantom and a nomadic judgment debtor. Unable to proceed directly against the debtor, the plaintiff Kaibab instituted supplemental proceedings against the children of the debtor and Rooster I Corporation in an effort to discover assets which could be used for the satisfaction of its claim. See Ill. Rev. Stat. 1981, ch. 110, par. 73, and Supreme Court Rule 277 (87 Ill. 2d R. 277).

Through evidence adduced at various court hearings it was established that in the years of 1973 and 1974, but prior to November 14, 1974, certain cash deposits standing in the name of Rooster I Corporation and Projects Management Inc. were placed in the name of the citation defendants Teren, Gary and Linda Waldsmith. As of November 14, 1974, there had been deposited in the names of said individuals the aggregate sum of $515,000 which was evidenced by a certificate of deposit at the Jefferson Trust and Savings Bank of Peoria, Illinois. On November 14, 1972, the certificate of deposit was exchanged in cash and the entire sum less $20,000 was delivered to the president of Rooster I Corporation, namely, the judgment debtor B. E Waldsmith. The amount of money on deposit in Jefferson Trust as of November 14, 1974, in the names of the citation defendants Teren, Gary and Linda Waldsmith was evidenced by promissory notes payable to Rooster I Corporation. Citations proceedings were not commenced against the citation defendants until April 11, 1975, or almost five months after Teren, Gary and Linda Waldsmith had, with the exception of $20,000, divested themselves of the funds. The Waldsmith children first explained this transaction by claiming that the money represented an investment pool of their money and was given by them to their father for purposes of investment. After remand of this case by this court in 1978, the Waldsmith children abandoned the “investment pool” explanation and in lieu thereof explained that they were handling corporate funds, to-wit, funds of Rooster I Corporation.

The foregoing transaction concerning the transfer of $515,000 was deemed by the trial court to constitute fraud upon the creditors of B. F. Waldsmith, and the court concluded that Gary, Teren and Linda Waldsmith were active participants in the fraud and consequently judgment was entered against them.

There may or may not have been a well-planned fraud perpetrated on the judgment creditor Kaibab. Our law attempts to provide a remedy for every wrong, but the remedy in the instant case is not to be found within the framework of section 73 of our Civil Practice Act. Section 73 provides in pertinent part as follows:

“(c) Compel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part ***.” Ill. Rev. Stat. 1975, ch. 110, par. 73(2)(c).

The facts of this case do not fall within the framework of section 73. The plaintiff Kaibab in its brief and its counsel during oral argument conceded that the Waldsmith children did not have the funds in question in their control or possession at the time the citation proceedings were commenced, but assert that such fact is of no consequence since the purpose of a citation is to uncover assets which had previously been fraudulently concealed. In support of this tenuous argument the plaintiff Kaibab relies on the case of Alan Drey Co. v. Generation, Inc. (1974), 22 Ill. App. 3d 611, 317 N.E.2d 673. In Drey the judgment debtor, Generation, sold to McGraw-Hill, a citation defendant, a subscriber list for $150,000. The $150,000 was applied to benefit personally officers of Drey and not to the payment of corporate debts. The sale was consummated while the proceeding on the judgment awarded to the plaintiff Drey was stayed by order of court. After Drey’s judgment against Generation had been confirmed, the plaintiff Drey in a supplemental proceeding sought judgment against McGraw-Hill, citation defendant, on the theory that the transfer by Generation was a fraudulent conveyance and McGraw-Hill having notice of the fraudulent intent of the vendor was a participant in the fraud. The plaintiff obtained judgment against McGraw-Hill, which was affirmed by the reviewing court, which held that the evidence was sufficient to support a finding that McGraw-Hill knew or should have known of Generation’s fraudulent intent in selling the subscribers list and hence the transferee (McGraw-Hill) was not a bona fide purchaser.

We have set forth the salient facts in the Drey case because plaintiff Kaibab argues so strenuously that it is applicable to the instant case. Plaintiff deems it to be of great import that McGraw-Hill paid money and purchased the subscriber list a long time prior to the issuance of a citation by Drey. He equates that situation to the one in the instant case where the children of B. E Waldsmith had had funds in their possession a long time, to-wit, approximately five months, before the citation proceedings were instituted against them. What plaintiff Kaibab overlooks or ignores is the fact that McGraw-Hill still had the customer lists in its possession, that they were a valuable asset and that the transferee had actual knowledge that the transfer of the lists would put the Generation out of business and defeat the claim of Drey, the judgment creditor. To accept the reasoning of the plaintiff Kaibab would result in a distortion of the law to the extent that individuals in our State could be held responsible for debts of a third party if at any time assets of third party had passed through their hands.

The decision in the Drey case, while being correct in that case, is not precedential in light of the facts in the instant case. This conclusion is based upon several factors. First, as stated, McGrawHill, the transferee, still had in its possession valuable assets, to-wit, subscriber lists, the value of which could have been used to satisfy the claim of Drey. Had McGraw returned the lists to Generation prior to the citation proceedings, no judgment would have been entered against the transferee. Secondly, the element of fraud is clearly present in the Drey case. An examination of the record fails to sustain fraud in the instant case. The record contains evidence which supports a finding that Rooster I Corporation through its president transferred $515,000 to Teren, Gary and Linda Waldsmith and the transferees in exchange gave to the corporation promissory notes for an identical amount. Wlien the approximate sum of money was returned to the corporation by the transferees by delivery to its president, the promissory notes were cancelled. All of the events transpired months before the section 73 proceedings were commenced. It can only be concluded that the judgments against the Waldsmith children should not have been entered by the trial court.

We are next confronted with the issue as to whether the trial court properly entered judgment against the citation defendant Rooster I Corporation.

The trial court in entering judgment against Rooster I specifically found that the corporation was liable under the “alter ego” theory. In its brief the plaintiff states, “This is not precisely a case of ‘piercing the corporate veil’ or establishing that the corporation was an alter ego of a shareholder.” After this statement the plaintiff proceeds to abandon the “alter ego” theory and we believe rightfully so in that under such theory the court merely disregards the corporate entity and holds an individual responsible for his acts knowingly and intentionally done in the name of the corporation. Such a result in the instant case would be unavailing of relief to the plaintiff because liability would be imposed upon the judgment creditor B. F. Waldsmith, rather than Rooster I Corporation.

After abandoning the alter ego theory the plaintiff in its effort to support its judgment advances arguments which can be described as a “fraudulent agent” theory, in that the defendant corporation was the agent who assisted in perpetrating and concealing the fraudulent acts of its president and shareholder, B. F. Waldsmith.

The defendant corporation objects to the raising of this new issue for the first time on appeal. The objection is not well taken, since unlike the appellant, an appellee can sustain a decree by any argument and on any basis appearing in the record which shows that the trial court is right. (See Becker v. Billings (1922), 304 Ill. 190, 136 N.E. 581; Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App. 3d 956, 331 N.E.2d 365; and Huber v. Watts (1982), 110 Ill. App. 3d 614.) We will consider the theory and arguments in support of the same which is advanced by the plaintiff for the first time on appeal.

In order that the “fraudulent agent” theory prevail, the plaintiff in its brief argues that the assets of Rooster I Corporation were one and the same as the assets of judgment debtor B. E Waldsmith. Unless this argument can be proved by evidence adduced during trial, then judgment entered against the citation defendant was not proper.

Directing our attention to the structure and actions of Rooster I Corporation, we find that it was incorporated on December 8, 1965, and throughout the ensuing years annual reports to the Secretary of State and other corporate records were filed as required by law. The corporation had approximately 100 shareholders and had outstanding 90,000 shares of stock, of which approximately 25,000 were owned by B. F. Waldsmith, who with the exception of one year served as president of the corporation. Throughout the years corporate minute books were kept which among other things set forth the voting record of shareholders and the amount of dividends paid to them. Voluminous discovery undertaken by the plaintiff failed to disclose that the corporation paid any personal expenses of B. F. Waldsmith or provided him with any unusual or questionable remuneration.

The plaintiff argues that the transfer of $515,000 to the children of B. F. Waldsmith was a most unusual procedure and it may well have been, but it cannot be claimed that it was done without corporate authority. The minute book of the corporation provides that the president and secretary were authorized to make loans and such authority was general and unrestricted. As previously set forth the transfer of the funds to the Waldsmith children was evidenced by promissory notes given to the corporation which were cancelled when they divested themselves of the funds by delivering the same to B. F. Waldsmith, president of the corporation. The funds while in the names of Teren, Gary and Linda Waldsmith earned interest (approximately $25,000) and such earnings were reported in the corporate tax returns.

In studying the brief of the plaintiff this court notes the inconsistencies contained therein. In some instances the plaintiff asserts that the money ($515,000) belonged to the judgment debtor and that the corporation assisted him in defrauding his creditor by claiming corporate funds were involved. Then a contrary position is taken when the plaintiff states, “What is clear, however, is that the president of Rooster I was able without so much as word [sic] in corporate records, to take one half million dollars from corporate coffers ***.” If this latter statement is accurate and the funds were those of the corporation, then they would not be subject to a citation judgment or a general judgment since the corporation is not and never was indebted to the plaintiff Kaibab.

We note the inconsistent statements of the plaintiff since it highlights the fact that the plaintiff has not been able to prove that the funds in fact belonged to the judgment debtor. Unless such was proved the “fraudulent agent” theory advanced by the plaintiff cannot prevail. The trial court’s judgment against Rooster I Corporation was improperly entered because it is based upon conjecture and speculation. The plaintiff’s argument in many instances is predicated upon the assumption that Rooster I had the burden of proving that its actions were not improper and fraudulent. We disagree with this assumption. It is true that our previous opinion in this case (80 Ill. App. 3d 782, 372 N.E.2d 139) discussed “badges of fraud” giving rise to an inference of presumption of fraud which shifts the burden of proof to the defendants. We believe that this language was unfortunate in view of the fact that this court specifically remanded the case for further discovery of the whereabouts of disputed funds and whether corporate holdings represented assets which could be reached by plaintiff. The garnering of such information was clearly within the province of the plaintiff. To hold otherwise would compel the citation defendants to prove that they were liable.

We note that the plaintiff attempted to bolster its argument by the citation of a number of cases, to-wit, Alan Drey Co. v. Generation, Inc. (1974), 22 Ill. App. 3d 611, 317 N.E.2d 673; Hinkley v. Reed (1899), 82 Ill. App. 60; Sondheimer v. Graeser (1898), 172 Ill. 293, 50 N.E. 174; and Harris v. Aimco, Inc. (1978), 66 Ill. App. 3d 60, 383 N.E.2d 631.

We have previously discussed the Drey case and hence will only note that relief was given to a creditor in a citation proceedings when the asset in question was still in the possession of the transferee and two corporations knowingly connived to defraud the creditor. The Hinkley case involved a situation where an insolvent partnership transferred all of its assets to a corporation which was 99.77% owned by the partner. Such transfer was held to be fraudulent. The Sondheimer case relates to the issue of priority of creditors, and the Harris case set aside a conveyance of real estate which was held to be fraudulent because it was made for the purpose of paying a fraudu.lent debt. We have carefully examined the cases cited by the plaintiff and fail to find that they have any bearing on the issue relating to the liability of Rooster I Corporation.

The defendants further argue that the judgments against them should be reversed or remanded because of lack of jurisdiction of the Arizona court and fraud in the procurement of the judgment. Having determined that the judgments were not properly taken against the citation defendants it could be argued that this issue need not be determined. In view of the fact that future litigation may ensue from this case we deem it best to address the jurisdictional question. We believe defendants’ contention to be without merit. They are citation defendants and not the judgment debtor. They were not parties in the original Arizona proceedings and would have had no standing to intervene or raise defenses in such proceedings and it logically follows that they cannot now wage a collateral attack on the judgment in the Illinois courts. We are of the further opinion that the judgment debtor B. F. Waldsmith would be precluded to now raise a jurisdictional question as to the Arizona judgment. (See Evans v. Advance Schools, Inc. (1979), 70 Ill. App. 3d 947, 388 N.E.2d 1003.) However, the ability of a registering court to inquire into the jurisdiction of a rendering court is not infinite but rather is limited by the principles of res judicata. See Ross & Chatterton Law Offices v. Lewis (1982), 109 Ill. App. 3d 856.

The next issue to which this court directs its attention is raised in a cross appeal by the plaintiff and is whether the trial court correctly held that residential real estate at 909 Oakwood Road in East Peoria was beyond the reach of the plaintiff as a creditor of B. F. Waldsmith. The factual background which gave rise to this issue is as follows. B. F. Waldsmith, the judgment debtor, and his wife obtained the real estate in question on August 3, 1951. On August 19, 1952, the Waldsmiths by warranty deed conveyed the property to Ethel Land, the mother-in-law of B. F. Waldsmith. The deed recited that the conveyance was for $1 and other valuable consideration. The deed also had affixed to it revenue stamps in the sum of 55 cents. The mother-in-law, Ethel Land, by deed dated June 6, 1962, and recorded January 2, 1974, conveyed the real estate to Gary Waldsmith, son of the judgment debtor. In 1962 the grantee Gary Waldsmith was 14 years of age. The grantee Gary and his wife by warranty deed dated August 28, 1975, and recorded September 19, 1975, conveyed the real estate to Yerlin Baysinger and his wife Mary. The record supports a finding that Yerlin Baysinger was a business associate and friend of the judgment debtor. Evidence further discloses that B. E Waldsmith and his wife resided in the premises at 909 Oakwood Road, probably continuously from sometime in the 1950’s. This finding is supported by testimony of neighbors, telephone listings, utility installation records, voters registration, and by various corporate records upon which he listed his address. There is further evidence that B. F. Waldsmith treated the property as if he was the owner of the same. He listed the property as an asset on a financial statement and on an occasion he informed a neighbor that he was selling the premises.

The plaintiff in the trial court attempted to prove that regardless of the fact that title to the real estate was not in the judgment debtor’s name, he nevertheless had such a beneficial interest in the same that it should be applied in satisfaction of his debts. The trial court ruled contrary to this claim and held that there was a failure of the requisite proof to support a “constructive trust.” In its cross-appeal plaintiff agrees that a “constructive trust” had not been proved but asserts that the evidence would not only support but compel a finding and order declaring that a “resulting trust” had been created and therefore the real estate was subject to the debts of the judgment debtor.

The general rule is that a resulting trust is created by operation of law and arises out of a presumed intention of the parties as evidenced by their acts and conduct. A resulting trust has been called an “intent enforcing” trust created by operation of law and having its roots in the presumed intention of the parties. (See West v. Scott (1955), 6 Ill. 2d 167, 128 N.E.2d 734.) A further guideline in determining whether a resulting trust has been created is set forth in the case of Steiner v. Lawson (1966), 71 Ill. App. 2d 392, 404-05, 219 N.E.2d 121, 127, wherein it was stated:

“ ‘[A] resulting trust (arises) wherever the circumstances surrounding the disposition of property raise an inference, not rebutted, that the transferor does not intend that the person taking or holding the property *** should have the beneficial interest therein.’ ”

The law is further well established that the burden of proof rests upon the party seeking to establish a resulting trust, and the evidence to be effective for this purpose must be clear, convincing, unequivocal, and unmistakable. See West v. Scott (1955), 6 Ill. 2d 167, 128 N.E.2d 734.

It is clear from the foregoing that the crucial element in creating a resulting trust is “intent” and that such intent can be proved by-surrounding circumstances, but such proof must be clear and convincing.

During the trial of this case testimony of Herman Hessick was excluded by the court which was to the effect that B. F. Waldsmith, the judgment debtor, during the late 1940’s and early 1950’s was building houses and was receiving numerous complaints from purchasers concerning alleged defects in the construction. Had the trial court been considering the possible creation of a resulting trust then this testimony should have been admitted, since it related to the possible intent or motive of the judgment creditor in his conveyance of the real estate to his mother-in-law, Ethel Land. The conveyance to Land did recite consideration which was bolstered by the affixing of revenue stamps on the deed, however, the revenue stamps being in the sum of 55 cents reflected the value of the property to be less than $1,000 or an unrealistic valuation. There is no evidence that Land lived in the premises or ever exercised any control over the same. The next conveyance was to a son of the judgment debtor, age 14 years, who years later conveyed the premises to Dr. Verlin Baysinger, a business associate, and in the words of the trial court, a crony of the judgment debtor. Neither the son Gary or Baysinger ever exercised any control over the premises or paid for any maintenance or expenses relating to it. Throughout the years the property was titled in a mother-in-law, son and friend of the judgment debtor.

The evidence is clear and convincing that the individual enjoying the beneficial interest in the property was the judgment debtor. He and his -wife resided there for many years. It was the home where they raised their three children. The telephone was listed in the wife’s name. Utility records were listed in the name of the judgment debtor. Individuals met him at the residence for the purpose of transacting business. He listed the property as an asset he owned when he executed a financial statement with a lending institution.

The facts surrounding the conveyance of the property and the use of the same by the- judgment debtor who in all respects exercised dominion over it establish an inference, not rebutted, that the transferor did not intend that the parties holding title to the same should enjoy the beneficial interests of the property. The situation in the instant case, while not identical, can nevertheless be likened to the case of Steiner v. Lawson (1966), 71 Ill. App. 2d 392, 219 N.E.2d 121. This court concludes that as to the real estate identified as 909 Oakwood, East Peoria, Illinois, a resulting trust was created and the decision of the trial court as to this realty is reversed and this case is remanded to the trial court for such further proceedings as are necessary so that the value of the premises can be applied in payment of the indebtedness of B. F. Waldsmith to the plaintiff, Kaibab Industries, Inc. The legal description of the real estate is as follows:

“Lots Fifteen (15) and Sixteen (16) in Block One (1) in Oak-wood Park, being a Subdivision of part of the West Half of the Southwest Quarter of Section Twenty Six (26) North, Range Four (4) West of the Third Principal Meridian; situated in the County of Tazewell and State of Illinois.”

The plaintiff also raises by cross-appeal the issue as to whether the trial court erred in dismissing garnishment proceedings against the citation-garnishee defendant, Northwest Bank of Peoria.

The bank became enmeshed in this litigation after the trial court rendered its decision for plaintiff in the sum of $103,507 against citation defendant Rooster I Corporation. On September 1, 1981, the bank was served with an affidavit for non-wage garnishment, a non-wage garnishment summons and a citation to discover assets, all directed to a Rooster I Corporation account in the bank. The bank was directed to appear in the circuit court on September 23, 1981. Prior to appearance it was indicated by a bank officer to the plaintiff that there was $14,000 (later corrected to the sum of $11,000) in the target account. The bank on September 21, 1981, filed a response with an affidavit dated September 17, 1981, indicating that on that date there was $179.19 in the account. The trial court dismissed the garnishment defendant bank upon the acceptance and filing of an appeal bond and apparently predicated its action upon Supreme Court Rule 305, which provides in substance that upon filing of a notice of appeal and timely filing of an appeal bond, enforcement of a judgment for money only is stayed. (See 87 Ill. 2d R. 305(a)(1).) This court has held that the dismissal of garnishment proceedings after a supersedeas bond was presented, approved and filed was a stay of proceedings for purposes of Supreme Court Rule 305 which did not affect the validity of the judgment, which may be enforced if it is affirmed on appeal. (Kurek, v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 365 N.E.2d 1191.) The trial court was correct in its dismissal of the Northwest Bank of Peoria.

We have briefly reviewed the action of the trial court in regard to the Bank and determined that its action was correct even though the issue could have been disregarded on the grounds of mootness. Having reversed the judgment entered against the citation defendant Rooster I, the garnishment proceedings instituted by plaintiff would of necessity fall since the judgment supporting the same was no longer in esse.

This case being remanded to the trial court for further proceedings, it is not desirable, necessary or beneficial for this court to consider other issues raised in this appeal. The amount of judgment and the awarding or denial of costs will again be within the province of the trial court.

For the reasons set forth, the circuit court of Tazewell County is affirmed in part, reversed in part and remanded with directions contained in this opinion.

Affirmed in part, reversed in part, and remanded with directions.

STOUDER and HEIPLE, JJ., concur.

      Projects Management Inc. and Rooster I Corporation for all intents and purposes were one and the same and will be referred to as Rooster I.

      Gary Waldsmith retained $20,000 of the funds, claiming that the same belonged to him. No claim has been made for this sum nor is it a subject in this appeal.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL P. LOFTUS, Defendant-Appellee.
    Fourth District
    No. 4—82—0364
    Opinion filed January 11, 1983.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Paul R. Welch, of Costigan & Wollrab, of Bloomington, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This is an appeal by the State under the authority of Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)) from an order of the circuit court of McLean County which suppressed certain evidence. Proper certification was made as required by People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501. We reverse and remand.

Defendant was charged in a criminal complaint with unlawful possession of more than 2.5 grams but not more than 10 grams of cannabis in violation of section 4(b) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 704(b)). He filed a motion to suppress all items seized, including the cannabis. The police inventory attached to the motion lists a great variety of items from personal papers through cannabis to a spare tire and a sack of groceries. However, for purposes of discussion in this order only the cannabis, an opened six-pack of beer, a plastic cup and holder, some fireworks, and a “lock-jog” (an instrument apparently used to open locks on automobiles) are significant. The trial court’s order denied suppression of the beer and plastic cup, but allowed suppression of all other items. We gather that defendant has also been charged with illegal transportation of liquor, but this matter is not before us.

A brief synopsis of the evidence adduced at the hearing on the motion to suppress follows. Officer Welch of the Illinois State University police department stated that at about 1 a.m. on February 14, 1982, he observed defendant’s car leave a construction site on the ISU campus. There had been illegal activity in and about this site of which the officer was aware, so he stopped defendant in his car. When the car door was opened, Welch observed a plastic cup of the type commonly used in the campus area for the serving of liquor in a holder on the car door. He met defendant at the rear of defendant’s car and smelled the odor of alcohol on defendant’s breath. The presence of the cup and holder and the odor led him to believe that there might be a liquor violation, but he was principally concerned about defendant’s presence at the construction site.

Using his flashlight, Welch looked into defendant’s car and observed a beer carton on the floor of the passenger side which contained five open bottles of beer and the lock-jog, which was on the back seat. The plastic cup contained a small amount of liquid which smelled like beer. He was concerned about the lock-jog since a similar device had been used in the past as a burglary tool. Defendant claimed that he had become lost and was simply turning around at the construction site and that he was an automotive mechanic and used the lock-job in his trade. At about the same time Welch opened a paper sack in defendant’s car; he was looking for additional alcoholic beverages but found that the sack contained fireworks.

He then arrested defendant for illegal transportation of alcohol, possession of a burglary tool, and possession of fireworks. He handcuffed defendant and placed him in the back seat of his squad car; he also sent a radio dispatch asking for assistance and Officer Nagle and Corporal Saunders responded, arriving at the scene a short time later.

While Nagle stood guard over defendant, Welch entered defendant’s car to retrieve the beer carton and other evidence which he had earlier observed. In reaching across the driver’s seat, he observed with the aid of the dome light the open ashtray in which, he claimed, there were a marijuana butt and two pipes with cannabis residue in them. He then returned to the squad and after admonishing defendant of his Miranda rights, asked for permission to search defendant’s car. Defendant inquired as to alternatives and Welch informed him that he would impound the car and seek a search warrant. While the evidence is somewhat diverse as to the exact wording, it appears that defendant told Welch to proceed with the search and that he would find marijuana in the glove compartment. Welch then opened that compartment and discovered a plastic bag containing a substance which afterwards proved to be marijuana.

Nagle then drove defendant’s car to police headquarters with Welch following with defendant in his custody. There defendant executed a waiver of rights and consent to search after these forms had been explained to him.

The testimony of Nagle and Saunders was essentially corroborative of that of Welch. Defendant’s testimony was in many respects parallel to that of the officers. He stated that he was under arrest at the time indicated by Welch, saying “*** I didn’t offer any resistance. I, you know, went along with his conditions, and he put the handcuffs on me.” He also indicated that he consented to the search of his car and signed the forms at headquarters because he “had to,” although he did not regard this as a threat. The significant variations in defendant’s testimony are: (1) the ashtray was closed; (2) the dome light in his car was inoperative; and (3) he was never near the construction site.

The trial court entered a written order which contained the following findings:

“1. That the traffic stop made by Officer Welch of Defendant’s vehicle was reasonable in light of all of the circumstances.
2. That the visual search of the interior of the vehicle by Officer Welch was reasonable and the discovery of the five opened bottles of Michelob and a plastic cup in a holder by the driver’s window was not in violation of any rights of the Defendant, and the five opened Michelob bottles and the cup were properly seized.
3. That the search of the remainder of the interior of the car, the ashtray and glove box included, and the trunk area, was in violation of the Defendant’s Constitutional Rights, in that there was no valid consent given by the Defendant, and the search is not justified on any other theory in that it was not incident to an arrest, was not pursuant to a Search Warrant, and did not constitute a Plain View seizing of the objects.
4. All other items, excepting the five opened Michelob beer bottles and the aforementioned cup, should be suppressed.”

The State posits three theories upon which the trial court’s order is erroneous and upon which the search may be upheld: (1) consent; (2) search incidental to an arrest; or (3) the “automobile exception” of Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, and Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975.

On review, a trial court’s findings on a defendant’s motion to suppress should not be set aside unless clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) This is especially true of a factual matter such as consent. (People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1.) Since there was some ambivalence in the testimony regarding consent and also since there was some element of coercion present both at the scene of the search and afterwards at headquarters, we will accept the trial court’s finding of fact that there was no consent.

However, the matter is considerably different regarding a search incident to an arrest. Arrest is a mixed question of fact and law. (People v. Duchant (1939), 370 Ill. 650, 19 N.E.2d 590.) Moreover, there is no question of credibility in the instant case. Welch testified that he did arrest defendant and defendant testified that he submitted to arrest. We may therefore examine the finding as a matter of law and we find that the trial court’s ruling is clearly erroneous.

This case is controlled by New York v. Belton (1981), 453 U.S. 454, 460, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864, wherein the Supreme Court said:

“Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, ***.”

Footnote 4 to the foregoing passage states:

“ ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.”

In Belton the search was conducted after the arrest. Our supreme court has adopted an even broader rule; in Clark the search preceded the arrest and yet was held valid under the authority of Belton. We are aware of certain appellate court decisions which are contrary. (People v. Lee (1976), 41 Ill. App. 3d 502, 354 N.E.2d 543; People v. Hendrix (1974), 25 Ill. App. 3d 339, 323 N.E.2d 505; People v. Valdez (1980), 81 Ill. App. 3d 25, 400 N.E.2d 1096.) However, these cases predated Belton and Clark and relied upon the rationale of Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034. The Belton court was aware of Chimel but elected to amplify its doctrine in order that a straightforward rule might be established for the police in dealing with cases of this variety.

Defendant has argued that Belton defines a strict perimeter for a search and therefore limits it to what initially provoked it, in this case, liquor, burglary tools and fireworks. Therefore, he reasons, whether the ashtray were open or shut, the search of the glove compartment was improper. We do not read Belton in this fashion. Belton’s perimeter was spatial — the passenger compartment of the car-net qualitative. In fact, in Belton it was a marijuana envelope which provoked the search, but the real contraband at issue was cocaine found in a jacket pocket in the vehicle.

There is some language in United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, which indicates that the scope of a warrantless search is not defined by the container but by the object of the search. However, this must be read with the language immediately preceding: “The scope of a warrantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause.” (456 U.S. 798, 823, 72 L. Ed. 2d 572, 593, 102 S. Ct. 2157, 2172.) It is elementary that if an affidavit for search warrant indicates that illegal aliens are being sought, it is not broad enough to cover containers too small for an alien. We do not view Ross as limiting Belton, but rather expanding its doctrine to reach from the passenger compartment into the trunk area. Our supreme court cited both Belton and Ross as support for its holding in Clark.

Defendant further argues that the Belton rationale cannot apply in this case since he was handcuffed and in the back seat of a squad car, presumably a number of feet removed from his own vehicle. The Belton court spoke of the fact that objects within a passenger compartment, including a weapon, might be grabbed by the arrestee. Professor LaFave answers:

“A second uncertainty asserted by Justice Brennan concerns the arrestee’s proximity — must ‘the suspect [be] standing in close proximity to the car when the search is conducted?’ Given the Belton majority’s avowed purpose of foregoing the need for case-by-case determination of an arrestee’s control of the car, the answer appears to be no. Thus, under Belton a search of the vehicle would be allowed even after the defendant was removed from it, handcuffed, and placed in the squad car.” (2 W. LaFave, Search and Seizure sec. 7.1, at 136 (1982 Supp.).)

Indeed, Justice Brennan in his dissent stated:

“Under the approach taken today, the result would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest ***.” 453 U.S. 454. 468. 69 L. Ed. 2d 768. 780. 101 S. Ct. 1860, 2868.

We therefore hold that the search in the instant case was one incidental to a lawful arrest and therefore proper. We need not address the People’s third alternative contention regarding the automobile exception.

The order of the circuit court of McLean County is therefore reversed and the cause is remanded to that court for further proceedings.

Reversed and remanded.

TRAPP and MILLER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD HARLAND et al., Defendant-Appellees.
    Third District
    No. 82—196
    Opinion filed December 23, 1982.

      L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendants Ronald Harland and Kenneth Tritt were indicted for burglary and theft and moved to suppress the evidence against them. After a hearing in the circuit court of Kankakee County, the motion was granted.

Four individuals testified at the suppression hearing, the defendants and the officers who effected the seizure. The defendants indicated that Harland was driving Tritt home in the early morning of May 13, 1981. Upon arriving at Tritt’s residence, another vehicle pulled into his driveway. Two police officers stepped out of the second vehicle, called Tritt by name, and said that they had a warrant for his arrest. The officers did not know for what offense the warrant had been issued, and Tritt advised them he had appeared in the county in question and posted bond on the charge there pending. At that time, a second squad car arrived, and a third officer advised the first two that the warrant in question was no longer active. Upon receiving that information, one of the first two officers walked up to Harland’s car, looked into it with the aid of a flashlight, and ordered defendants to assume the search position. Tritt said the officer took a pocket knife, screwdriver, and wristwatch from him; and Harland said he took a box of coins from him. There was no mention of any traffic offenses, and the officers had never activated their flashing red lights.

While there were a number of inconsistencies in their testimony, the officers testified essentially as follows. At approximately 1:36 a.m. on the morning in question, Deputy Sheriff Francis Hubert noticed Harland’s vehicle approaching the squad car in which he and Deputy Sheriff Patrick Hardesty were patrolling the eastern section of Kankakee County. Harland’s car then turned off the highway and again turned into Tritt’s driveway without signaling either turn. The officers believed there was a warrant for Tritt’s arrest and knew where he lived, as Hubert had previously attempted to arrest him on the warrant; however, they denied this was the reason they followed Harland’s vehicle into the driveway. Hubert believed Hardesty had activated the overhead lights, but Hardesty did not remember. As the squad car pulled to a stop, defendants left Harland’s car and each officer approached a defendant on his side of the vehicles. Hubert asked Tritt to assume the search position, frisked him, and discovered a watch case. When Hubert asked his name, he told him and one of the officers mentioned the warrant. Hubert then frisked Harland and found what appeared to be a watch case and a box of coins. While Hardesty called the communication center to verify the validity of the warrant, Hubert walked up to Harland’s car and, using his flashlight, looked inside. He saw a television, a tank, a box, a suitcase on which was the name Bill Padgett, and a pillowcase which appeared to be filled with frozen meat. Hubert then reached into the vehicle and seized a radiologist’s statement addressed to JoAnne Padgett. The officer could not recall whether he had observed the statement from outside the automobile and was not certain but believed it may have been in the pillowcase. After verifying a burglary at the Padgett residence, the defendants were arrested for the crime.

The four witnesses testified to many other details of the events of the morning in question. Except as necessary in our discussion of the single issue presented, these details need not be recited. The issue is whether the trial court erred in suppressing the evidence as its conclusions of law and fact were allegedly patently erroneous.

The facts concerning the initial intrusion in this cause are clearly controverted. The officers testified that they pulled into the driveway because Harland had twice failed to signal turns. Defendants testified that Harland signaled both turns. Hubert stated an additional reason was that the automobile appeared to be missing a license plate; however, Hardesty had previously attempted to check the vehicle’s registration from the front plate, which was apparently in place, and when the officers pulled into the driveway, they realized the back plate was similarly in place. The plate was, however, bent and could not be read. Nonetheless, nothing was said concerning the alleged failure to signal the turns nor the license plate. Hubert said the squad car’s overhead lights were activated; defendants said not; Hardesty didn’t recall. What conversation transpired at this time, if any, concerned the warrant the officers believed was in effect.

At a hearing on a motion to suppress, it is the function of the trial court to resolve conflicts in the testimony and to assess the credibility of the witnesses. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) The court specifically found defendant’s testimony to be “reasonable and credible” and that of the officers to be “vague, inconsistent, and incomplete regarding the stop ***.” Given these specific characterizations, we do not find that the initial intrusion of the officers was here justified. Accepting the court’s evaluation of defendants’ testimony, there were no turn signal violations. As for the license plate, it was not absent from the vehicle (People v. Palmer (1976), 62 Ill. 2d 261, 342 N.E.2d 353, cert. denied (1976), 429 U.S. 871, 50 L. Ed. 2d 151, 97 S. Ct. 185), attached with wire (People v. Wolf (1975), 60 Ill. 2d 230, 326 N.E.2d 766, cert. denied (1975), 423 U.S. 946, 46 L. Ed. 2d 280, 96 S. Ct. 361), covered with dirt on an otherwise extremely clean car (People v. Bradi (1982), 107 Ill. App. 3d 594, 437 N.E.2d 1285), or the like. Moreover, the officers had apparently seen the front plate and, while it is not entirely clear from the record, it would appear the bent rear plate was not observed until after the intrusion.

Once a trial court has ruled on a motion to suppress, a reviewing court will not disturb its order unless it is manifestly erroneous. (People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.) Under the circumstances herein, we cannot so characterize the order to suppress.

Accordingly, the order of the circuit court of Kankakee County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


text:
    J.E.L. REALTORS, INC., Plaintiff-Appellant, v. DANIEL F. METTILLE et al., Defendants-Appellees.
    Third District
    No. 82—229
    Opinion filed December 30, 1982.

      Joseph E. Lanuti, of Lanuti, Martin & Lanuti, of Ottawa, for appellant.
    Lawrence W. Baxter, of Warren, Hayner & Baxter, P.C., of Ottawa, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiff filed suit against two of the defendants in this case, alleging an intentional interference with contractual relations. The defendants moved for summary judgment in their favor, which the trial court granted in defendants’ favor.

The plaintiff owns a tavern in Ottawa, Illinois. On January 5, 1980, the plaintiff leased this building to Daniel F. Mettille, one of the defendants to this action. The lease expired on January 14, 1980. According to the terms of the lease, Mettille could only use the building as a tavern. A notation at the bottom of the lease indicates the parties extended the lease to April 30, 1980. The plaintiff and Mettille also signed an addendum to the lease. The provision of the addendum under dispute concerns the liquor license issued to Mettille:

“5. It is further understood and agreed between the parties that the Liquor License actually belongs to and is the property of J.E.L. Realtors, Inc.; however, it is further thoroughly understood for the convenience sale [sic] and for the ordering of supplies, etc., for the Tropic Lounge that the liquor license shall be issued in the name of the Lessee, it being further understood that the Lessee is responsible for payment of any normal charges for obtaining said licenses. However, the licenses shall remain always on the premises, and shall be transferred back to the Lessor in the event the lessee were to cease to operate the Tropic Lounge at this location ***.”

On April 30, 1980, the plaintiff and Mettille entered into an oral agreement to extend the lease and the addendum to April 30,1981.

The record does not indicate when Mettille received his original liquor license. In May 1980, though, he renewed his license. On August 8, 1980, Mettille returned the liquor license to the liquor commissioner, requesting that it be reissued to Jerry Halterman and Daniel Reynolds, the other two defendants to this action. The liquor commissioner subsequently reissued the license to Halterman and Reynolds.

The plaintiff filed this suit against Mettille, Halterman and Reynolds. In the first two counts of the complaint, the plaintiff alleged a breach of contract by Mettille. In the third count, the plaintiff alleged an intentional interference with contractual relations against Halter-man and Reynolds. These defendants moved for summary judgment, arguing that the contract was void as against public policy. They argued that a liquor license is not a property right and that it is a personal privilege. As such, it is argued, the plaintiff can have no interest in it. Therefore, the defendants contended, the contractual provision is void and unenforceable. The trial court granted the defendant’s motion for summary judgment. The plaintiff now appeals.

The elements of intentional interference with contractual relations include: (1) the existence of a valid and enforceable contract between the plaintiff and a third-party; (2) the defendant’s awareness of the contract; (3) the defendants intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the third-party, caused by the defendant’s conduct, and (5) damage to the plaintiff. (Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 551, 413 N.E.2d 98.) In its motion for summary judgment and in its argument to this court, the defendants argued that every element of the plaintiff’s action must fail. The primary focus of the arguments, however, has been upon the first element: Is the contract valid? Specifically, the issue is whether paragraph five of the addendum is void as against public policy.

The Liquor Control Act clearly states that a liquor license is a personal privilege, not a property right:

“A license shall be purely a personal privilege, good for not to exceed one year after issuance, except a non-beverage user’s license, unless sooner revoked as in this Act provided, and shall not constitute property, nor shall it be subject to attachment, garnishment or execution, nor shall it be alienable or transferable, voluntarily or involuntarily, or subject to being encumbered or hypothecated.” (Ill. Rev. Stat. 1981, ch. 43, par. 119.)

Courts have consistently recognized and enforced this policy. See, e.g., United Breweries Co. v. Price (1915), 197 Ill. App. 289; Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App. 2d 703, 269 N.E.2d 340.

The city of Ottawa Liquor Control Ordinance, however, permits a “transfer” of a liquor license, in spite of the apparent prohibition as to transfers under the Liquor Control Act:

“A license may be transferred by a licensee to another party but only if the transferree files a proper application and bond and meets all the requirements for a license as herein set forth. All requests for transfer must be in writing and be approved by the Mayor. The fee for such transfer shall be $50 and shall accompany the request for transfer.” (Ottawa, Ill., Municipal Code, ch. 34, par. 34.07 (1979).)

A liquor license is not actually sold in the same sense that an item of personal property or a piece of real estate is sold. A licensee can surrender his license to the liquor commissioner with a request that it be reissued to another party. The “transferree” must file an application for a license and meet all State and municipal requirements for the license. As the Ottawa Municipal Code indicates, the Commissioner is free to disapprove the “transfer.” He is not bound by the agreement between the licensee and the transferee.

A court will not declare a contract illegal unless it expressly contravenes the law or known public policy of a State. (Board of Education v. Surety Developers, Inc. (1974), 24 Ill. App. 3d 638, 645, 321 N.E.2d 99, aff’d (1975), 63 Ill. 2d 193, 347 N.E.2d 149.) A court will not, however, construe a contract in such a way to render a result contrary to the intention of the parties.

“In construing a written instrument, its letter should be controlled by its spirit and purpose, bearing in mind that the terms employed are servants and not masters of an intent, and are to be interpreted so as to subserve, and not to subvert, such intent.” United States Trust Co. v. Jones (1953), 414 Ill. 265, 271, 111 N.E.2d 144.

It is well known that liquor licenses are frequently “sold” in this State. A transfer of a license, such as that accomplished in the instant case, is not unusual. Since the Municipal Code permits these transfers, it is inconsistent to assert that the Code is contrary to public policy.

If the clause in this contract is illegal, therefore, it can only be due to its overbreadth. The provision at issue declares the license to be the property of the plaintiffs. By itself, this declaration of a property interest would contradict the Liquor Control Act. The parties to the contract, however, did not conduct themselves as if the license actually belonged to the plaintiffs. On the contrary, Mettille applied for the license, met the requirements for the license and paid all fees for its issuance. He was solely responsible for the license.

The clause requiring Mettille to “transfer” the license to the plaintiff if Mettille ceased doing business does no more than utilize the language of the ordinance to describe a transferring procedure. The plaintiff owns a building designed for use as a tavern. Undoubtedly, it wanted to protect its ability to efficiently and profitably utilize its building. Therefore, if its lessee were to cease doing business, it wanted the opportunity to continue using the building as a tavern. Towards this objective, the plaintiffs inserted a clause requiring a transfer of the liquor license to plaintiffs. Undoubtedly, the plaintiffs could have drafted this protective clause in a more effective way. Its confusion, though, should not be used to destroy the intent of the parties. By using the language of the ordinance, the contract did no more than require Mettille to surrender the license and request its reissuance to the plaintiff. Mettille’s obligation would be satisfied at that point. Since this type of “transfer” is common and the Municipal Code explicitly permits it, this court should not hold that the provision at issue here is void as against public policy.

The defendants’ reliance upon United Breweries and Burdin is unpersuasive. Both of these cases involved agreements to operate saloons under a license issued to another. This, of course, is illegal. In the case at bar, however, Mettille operated a tavern with a license issued to him. Moreover, the contract obligated him to do something the law explicitly permitted him to do.

Finally, the defendants contend that they are entitled to summary judgment as to each element of the action for intentional interference with contractual relations. The skeletal record here is insufficient to make such a determination. If anything, the record indicates a genuine dispute over the extent of the defendants’ knowledge of the contract and any inducement for its breach. Therefore, summary judgment is inappropriate for this case. Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398.

The judgment of the circuit court of La Salle County is reversed and the cause remanded for trial on the merits.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE MILLS

text:
      In re ESTATE OF JOYCE A. STEAGALL, Deceased.—(Charles S. Steagall, Ex’r of the Estate of Joyce A. Steagall, Plaintiff-Appellant, v. The People ex rel. Tyrone C. Fahner, Attorney General, Defendant-Appellee.
    Fourth District
    No. 4—82—0282
    Opinion filed January 18, 1983.
    Richard L. Steagall and John P. Nicoara, both of Peoria, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

The issue here — simply put— is whether the guarantee agreements executed by the decedent are debts deductible from the value of her estate for the purpose of determining the net value of the estate subject to Illinois inheritance tax.

The guarantees are contingent liabilities.

They are not deductible.

We affirm.

There is no need for a detailed recitation of facts here. After Joyce Steagall died, her husband and executor, Charles Steagall, filed an Illinois inheritance tax return. The Attorney General filed objections to the return, which challenge the listing — as deductions from the estate’s value — of three guarantees executed by the decedent to guarantee certain obligations incurred by her husband. A hearing was held and the circuit court ruled that the guarantee agreements were not actual debts of the estate, but instead were only contingent liabilities and as such were not deductible from the value of the estate in determining the net estate subject to tax. The court sustained the objections of the State and directed the Attorney General to submit an order assessing tax in the proper sum after deleting the guarantees as deductions. The executor appealed the circuit judge’s order assessing tax to the circuit court, and the circuit court affirmed the order of the circuit judge.

Section 1 of the Inheritance and Transfer Tax Law (the Act) (Ill. Rev. Stat. 1979, ch. 120, par. 375 et seq.) imposes a tax against the beneficial interest received by the beneficiaries from a decedent’s estate. The court in People v. Luehrs (1951), 408 Ill. 383, 97 N.E.2d 307, stated that the beneficial interest upon which the tax is imposed equals the clear market value of the estate less the decedent’s indebtedness and the expenses of administration. See also People v. Beckers (1952), 413 Ill. 102,108 N.E.2d 5.

The guarantees are liabilities of the estate and the death of the guarantor does not terminate liability for the guarantee of debts incurred by the principal before the guarantor’s death. (In re Estate of Klink (1941), 310 Ill. App. 609, 35 N.E.2d 684; In re Estate of Weil (1937), 291 Ill. App. 208, 9 N.E.2d 722.) They are, however, contingent liabilities. Several Illinois courts have held that the State cannot tax contingent benefits. (In re Estate of Wilson (1980), 81 Ill. 2d 349, 410 N.E.2d 23; People v. Estate of Strom (1936), 363 Ill. 241, 2 N.E.2d 94; People v. Peoples Savings Bank & Trust Co. (1924), 314 Ill. 529, 145 N.E. 597.) It would be inequitable to not allow the State to tax contingent benefits but then to allow a taxpayer to deduct contingent liabilities.

Furthermore, there is a provision in the Act that would allow the executor to receive a tax refund if the principal ever did default and the estate was forced to pay the debts. Section 8(c) of the Act states in full as follows:

“Whenever additional claims, taxes or additional costs of administration which are valid deductions have been proved and allowed against an estate subsequent to the appraisement, assessment and payment of tax, the claims, taxes and costs not having been allowed as deductions in the inheritance tax proceedings, the estate shall be entitled to a redetermination and reassessment of the tax and a refund from the State Treasurer of tax paid in excess of the amount of the tax due as shown by the order of reassessment.” (Ill. Rev. Stat. 1979, ch. 120, par. 382(c).)

This section appears to be tailor-made to avoid any inequities that may arise by now allowing an executor to deduct guarantees as debts of the estate. In addition, in the case before us, there is no chance that the estate would ever have to pay the debts. The attorney for the estate admitted in oral arguments that the guaranteed debts had been satisfied by the decedent’s husband and that the estate was no longer liable for their payment.

Therefore, because guarantees are contingent liabilities which in most cases may never — and in the present case certainly will never— ripen into actual debts of the estate, they may not be considered as debts of the estate for Illinois inheritance tax purposes.

Affirmed.

GREEN and LEWIS, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE HENRY CARTER, Defendant-Appellant.
    Fourth District
    No. 4—82—0412
    Opinion filed January 18, 1983.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals the revocation of his probation. He was originally placed on probation on August 25, 1981, for the offense of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12—4) on the condition, inter alia, that he not violate any criminal statute of this jurisdiction. The petition alleged defendant committed the offense of unlawful use of weapons. (Ill. Rev. Stat. 1981, ch. 38, par. 24—1(a)(4), (10).) The court found that violations of these sections had been proved by a preponderance of the evidence. Defendant was sentenced to 29 months’ imprisonment with credit for time on probation or in jail. Notice of appeal was filed the same day.

Section 24 — 1(a)(4), (10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24—1(a)(4), (10)) provides that it is an offense for a person to possess a handgun “except when on his own land or in his own abode or fixed place of business.”

Defendant was observed by two police officers as one of three black males standing on a sidewalk and parkway to the north of 505 North Fifth Street in Champaign, Illinois. The testimony of Officer Harris, who first observed defendant, included:

“Q Where exactly were they?
A Slightly north of the 505 address. This would have been adjacent to what should have been 507 North Fifth.
Q Okay. Where were they when you saw them?
A Standing on the sidewalk.
Q What — did you see any of them — any of the three men leave the group and go somewhere?”

He continued:

“He [defendant] left the two men he was talking to and he proceeded southwest over to a large tree. When he arrived at the tree he knelt down and removed an item from his waistband and placed down by the tree. After that, he began walking to the house that would have been number 507.”

Officer Colclasure corroborated this except to testify defendant walked back to the 505 address. Colclasure recovered a handgun lying on the ground beneath the tree. No other objects were lying in the immediate vicinity of the gun, and the other two men “were still in the yard” and did not approach the tree. There is no issue of the identification of the defendant.

At the close of the State’s evidence, defendant moved to dismiss the petition to revoke for the reason that there had been no testimony that defendant was not on his own land, at his place of abode or of business, when he was first observed on the sidewalk. He argued to the trial court that the sidewalk might have been a, private one to a house. The record does suggest that defendant might have resided at 505 North Fifth Street, Champaign. There are no other issues on appeal.

The trial court denied the motion to dismiss under the standard of the preponderance of the evidence finding that:

“It is probably more true than not true that he was on the land of the city and not his abode or his fixed place of business or his own land.”

Section 11 — 80—13 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11—80—13) provides:

“The corporate authorities of each municipality may regulate the use of sidewalks, the construction, repair, and use of openings in the sidewalks, and all vaults and structures thereon and thereunder, including telephone booths, and may require the owner or occupant of any premises to keep the sidewalks abutting the premises free from snow and other obstructions.”

The preponderance of evidence is that defendant was observed on the sidewalk paralleling the street. Assuming, arguendo, that defendant may have had a place of abode at 505 North Fifth Street, Champaign, we nevertheless conclude that the sidewalk, which under the cited provision of the Illinois Municipal Code is subject to the regulation use by the municipality, does not come within the language “except when on his own land or in his own abode or fixed place of business” as an exception to the violations charged.

The judgment of the trial court is affirmed.

Affirmed.

GREEN and MILLS, JJ., concur.


author: JUSTICE ALLOY JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES MORRISON, Defendant-Appellant.
    Third District
    No. 82—311
    Opinion filed January 13, 1983.
    HEIPLE, J., dissenting.
    Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Following a bench trial in the circuit court of Tazewell County, the defendant, Charles Morrison, was convicted of driving while under the influence of intoxicating liquor. (Ill. Rev. Stat. 1979, ch. 951/2, par. 11—501(a).) A sentencing hearing was held on April 30, 1982. The defendant was sentenced to one year of probation upon the conditions that he serve a 30-day jail term, pay a $350 fine, and participate in a treatment program for his alcohol problem. The only issue raised by the defendant in his appeal is that the trial court improperly assessed a fine where the facts do not support a finding that the defendant had the financial resources and future ability to pay the fine.

A bystander’s report was filed in this court relating to the proceedings during the sentencing hearing. (87 Ill. 2d R. 323(c).) At the time of the hearing, the defendant was 52 years old. He had been married for 31 years and had five children. Two of his sons, ages 20 and 21, lived at home while they attended college. The defendant’s wife was employed as a secretary at Mackinaw Valley Installation. The defendant was a carpenter but had been unemployed since August 1981. He was receiving unemployment compensation. The defendant’s family were dependent upon him for support.

The incident resulting in the defendant’s D.W.I. conviction also resulted in an automobile accident. Damages to the other vehicle total-led $3,800. The defendant did not have insurance, but was paying the car owner and the insurance company $50 per month as restitution. No other information regarding the financial status of the defendant was presented to the trial court.

When a trial court assesses a fine against a defendant, it must determine that the defendant has the financial resources and future ability to pay the fine. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—9—1(d)(1).) A determination that a defendant has the ability to pay is implicit in the imposition of a fine where the trial court is aware of facts in the record which would support such a determination. People v. Bishop (1980), 81 Ill. App. 3d 521, 401 N.E.2d 648.

In the instant case, the trial court imposed a $350 fine. The State argues that the record supports a finding that the defendant has the financial resources and the future ability to pay the fine. It supports its proposition by pointing out that the defendant did post a cash bond of $100 which was to be applied toward the fine. Also, the fact that the defendant qualified for the appointment of the appellate defender did not preclude the court from finding that the defendant had the resources to pay a fine. (People v. Mitchell (1977), 52 Ill. App. 3d 745, 367 N.E.2d 1351.) The defendant, though unemployed at the time of sentencing, was receiving unemployment compensation. He was an experienced carpenter who would likely find employment in the near future. Besides these factors, the defendant’s wife was also employed.

The ability of a defendant to post a cash bail does not necessarily indicate a defendant’s financial ability to pay restitution or reimbursement. The money used for bail may be borrowed or paid by relatives or friends. (People v. Johnson (1982), 106 Ill. App. 3d 171.) The same reasoning applies in the case of a fine. Merely because the defendant in the case at bar posted $100 cash bond does not indicate that he had the financial resources to pay a fine.

The facts before the trial court in the instant case were insufficient to support a determination that the defendant had the financial resources and the future ability to pay a $350 fine. The defendant was receiving unemployment compensation (People v. Martin (1982), 110 Ill. App. 3d 449), but it was not indicated what the amount of those benefits were. There was no information on the amount of expenses incurred by the defendant. It was not made clear whether the defendant’s wife contributed her income to the household or how much that income was. The trial court was not informed about the defendant’s educational background or whether he had other marketable skills besides carpentry. There was no information concerning any property or other sources of income available to the defendant. Overall, there were insufficient facts available to the trial court to determine the issue of imposition of a fine and the amount. Therefore, the fine is vacated and the cause is remanded for the limited purpose of conducting a hearing to determine the defendant’s ability to pay the fine, and the amount of the fine.

Based on the foregoing, the sentence placing defendant on one year probation, with 30 days to be spent in jail, and with participation in a treatment program for his alcohol problem, is affirmed. The sole issue to be determined upon remandment is the ability of defendant to pay a fine, and to fix the amount thereof.

The sentence of the circuit court of Tazewell County is affirmed in all respects except for the issue of imposition and the amount of a fine to be determined at a hearing on remandment.

Affirmed and remanded in part.

STOUDER, P.J., concurs.

JUSTICE HEIPLE

dissenting:

This is just the sort of case that has brought appellate courts into disrepute. After being convicted of drunken driving, the defendant, Charles Morrison, was placed on one year of probation, sentenced to 30 days in jail, ordered to participate in a treatment program for his alcohol problem, and fined $350.

This court chooses to reverse the fine and remand for a further evidentiary hearing.

What does the record show?

This defendant, with a traffic record containing numerous convictions for speeding and other traffic violations, previously had his license suspended for drunken driving in 1975. The current conviction for an offense of drunken driving on October 3, 1981, established that while, under the influence of intoxicating liquor and without insurance, he drove into the rear end of a parked car causing $3,800 damage to the hapless owner of that parked vehicle. He has agreed to make restitution for that damage at the rate of $50 per month. -

This court reverses the fine and thereby substitutes its judgment for that of the sentencing judge. The majority opinion finds that the defendant lacked either the present or the future ability to pay the fine. Such a finding is not merely erroneous. It does violence to the precept that the decision of the trial judge in imposing sentence is entitled to great weight. It invites frivolous appeals. It indicates a willingness on the part of the appellate court to tinker with every aspect of the judicial process, no matter how small.

The defendant in this case is a 52-year-old unemployed carpenter. He is married. His wife is employed full time as a secretary. He draws unemployment compensation. He was able to post a $100 cash bond. He considered himself financially able to pay off the victim at the rate of $50 per month. From this record, the trial court concluded that the defendant was able to pay a $350 fine, of which sum, part would be paid by his posted bond. Why must it be said that this decision of the trial judge was erroneous? I don’t know.

It is clear that the trial court is not required to specifically make a finding that the defendant had the financial resources and the future ability to pay a fine. That finding is implicit in the imposition of a fine where the trial judge was aware of the facts in the record which would support such a finding. People v. Bishop (1980), 81 Ill. App. 3d 521.

Moreover, the requirement that the trial court determine that the defendant have financial resources or future ability to pay a fine, must not be construed as permitting a fine only when a defendant has sufficient cash to pay the fine with no discomfort to himself. The purpose of a fine is punishment, and a fine must be of an amount sufficient to impress upon the defendant the seriousness of his offense and the necessity of discontinuing his illegal actions.

Considering this defendant’s past and present record of traffic offenses, he must be considered a menace on the highways. His age, his marital status with an employed wife, his skill as a carpenter, and his own self assessment that he could pay $50 per month restitution to the victim, all indicate that the defendant would be able in the future to pay the $350 fine.

Finally, if the majority really believes that the $350 fine imposed by the trial court is not supported by the record, the correct remedy would be an outright reversal of the fine. Remandment for purposes of an additional evidentiary hearing regarding the defendant’s ability to pay a fine is an affront to the taxpayers and to the judicial process. This additional hearing will consume the time and effort of the public defender, the State’s Attorney, the circuit clerk, the court bailiff, the sheriff, and the court reporter. The cost and wasted time of court personnel will exceed the amount of the fine even if collected. This says nothing about the costs already expended on this frivolous appeal. In the interest of judicial economy, the fine in this case should be voted either up or down, not reversed and remanded. Though outright reversal would be wrong, reversal with remand is even worse. As stated in my opening sentence, this is just the sort of case that has brought appellate courts into disrepute.

I would affirm the judgment of the trial court.