author: MR. PRESIDING JUSTICE ENGLISH

text:
    Ida Jordan, Plaintiff-Appellee, v. Pearl Savage, et al., Defendants-Appellants.
    Gen. No. 50,096.
    First District, Fourth Division.
    August 18, 1967.

      Meyer, Gorov & Feder, and Orner & Wasserman, of Chicago (Norton Wasserman, of counsel), for appellants.
    Abrams, Linn and Mix, of Chicago (B. John Mix, Jr., and David Linn, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff brought this action to recover damages for injuries sustained in a fall down a stairway as she left her apartment in a building located at 2920 South Went-worth Avenue, Chicago. Summons was returned showing service on defendants Steve and Pearl Savage and on their son-in-law, defendant John Simack, by serving John Simack, Jr., grandson of the Savages and son of John Simack, at the latter’s home located at 506 West 32nd Street, Chicago. Soon after this service defendant Simack filed his answer to the complaint. Thereafter, the court granted plaintiff’s request to increase the ad damnum from $10,000 to $50,000. Approximately sixteen months after the complaint had been filed, defendants Steve and Pearl Savage entered a special and limited appearance questioning the jurisdiction of the court over their persons and moving to quash service of summons. Their motion was denied, and the Savages then entered a general appearance and filed an answer to the complaint in which they admitted owning the building at the Wentworth address on the date plaintiff was injured. The cause proceeded to trial before a jury which returned a verdict for plaintiff in the amount of $12,000, and judgment was entered on the verdict by the magistrate presiding. Defendants appeal the judgment on several grounds.

Defendants Steve and Pearl Savage contend that the judgment against them is void for want of jurisdiction, arguing that service of process against them was defective and their motion to quash such service should have been allowed. This contention is partially meritorious since it appears from the affidavit attached to their motion that the Savages, on the date summons was served, did not reside at 506 West 32nd Street, but, instead, were physically present in the State of Arizona where they had resided for about five years. Substituted service under these circumstances was clearly improper and denial of their motion to quash constituted error. Ill Rev Stats 1963, c 110, § 13.2(2). However, the Savages later appeared generally and filed an answer to plaintiff’s complaint, thereby waiving the error in the court’s ruling. The Civil Practice Act (Ill Rev Stats 1963, c 110, § 20 (3)) provides:

If the Court sustains the objection (to jurisdiction), an appropriate order shall be entered. Error in ruling against the defendant on the objection is waived by the defendant’s taking part in further proceedings in the case, unless the objection is on the ground that the defendant is not amenable to process issued by a Court of this State.

The relevant question for determination, thus, is whether the Savages, though not amenable to the kind of service attempted, were amenable to some service of process issued by a court of this State. The Civil Practice Act clearly affords the requisite amenability when considered with reference to the allegations of plaintiff’s complaint. It provides:

§ 17. Act submitting to jurisdiction — Process.
(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:
(c) The ownership, use, or possession of any real estate situated in this State;

Ill Eev Stats 1963, c 110, § 17 (1) (c).

The answer filed by the Savages admitted ownership of the premises wherein plaintiff allegedly sustained her injuries, and at no time during the course of the trial was the fact of their ownership put in issue. Their motion to quash service of summons was aimed not at the amenability of the Savages to the jurisdiction of the court, but, rather, at the mode of substituted service used. Therefore, when they elected to litigate the merits of the case instead of standing on their motion, the jurisdictional point was waived. Ill Rev Stats 1963, c 110, § 20(3); Spencer v. American United Cab Ass’n, 59 Ill App2d 165, 170, 208 NE2d 118; O’Flaherty v. Osborn, 26 Ill App2d 152, 153, 167 NE2d 563.

The next contention, in which all defendants join, is that it was prejudicial error to require defendants to submit to a jury trial presided over by a magistrate in a case involving a claim for $50,000 in damages. It is true that at the times pertinent to this case the Assignments to Magistrates Act provided that civil proceedings were assignable to magistrates only when the claim for damages did not exceed $5,000. Ill Rev Stats 1963, c 37, § 622. That Act also provides, however:

All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate. Ill Rev Stats 1963, c 37, § 628.

Defendants recognize that the above statutory language is controlling here, but contend that their objection to the magistrate in the instant case was “made before the trial or hearing” began. The record shows that defendants raised their objection to assignment of the case to Magistrate Ouska after a panel of twelve veniremen had been called to the jury box, sworn for examination, and the first panel of four jurors selected. Defendants argue that all twelve jurors must first be sworn for trial before a jury trial can be said to have begun. While Hay v. Reed, 93 Ind App 592, 178 NE 873, an Indiana Appellate Court case, seems to support this proposition, we are far more persuaded by the decision in Wilhite v. Agbayani, 2 Ill App2d 29, 33, 118 NE2d 440, where the court stated:

In general it has been held that the trial begins when the jury are called into the box for examination as to their qualifications and that the calling of a jury is part of the trial. 53 Am Jur Trial, section 4.

To the same effect is Jost v. Hill, 51 Ill App2d 430, 433, 201 NE2d 468. Courts in other jurisdictions have also agreed: Kadota v. City and County of San Francisco, 166 Cal App2d 194, 333 P2d 75; Pratt v. Bishop, 257 NC 486, 126 SE2d 597; Re McIntyre’s Estate, 78 ND 10, 47 NW2d 527. We are aware that decisions in criminal cases have held that jeopardy does not attach until after selection of the jury has been completed and the jury sworn to try the issues. O’Donnell v. People, 224 Ill 218, 222, 79 NE 639; People v. Friason, 22 Ill2d 563, 565, 177 NE2d 230. We do not consider that these cases present quite the same issue.

Defendants further contend that there can be no waiver without knowledge, and that they made timely objection to the assignment of Magistrate Ouska the moment they became aware of his status. The record reveals, however, that, prior to his denial of this objection, the assignment judge questioned defendants’ counsel as to his acquaintance with the court and was not persuaded by the latter’s claim of lack of knowledge. We see no basis for disturbing the conclusion of the assignment judge in this regard.

Defendants contend next that there is no evidence to support the verdict of the jury, and that the trial court erred in not directing a verdict for defendants. The facts which follow were established by the evidence. Plaintiff moved to the building owned by defendants in about 1950. The Savages informed her that they owned the building and she agreed to pay them $100 a month rent. There was no written lease. Plaintiff testified that Mr. Savage told her that in return for the rent “he would keep it in repair.” Mr. Simack testified that, as owner, he understood he “would be called upon to make repairs when the need arose.”

Plaintiff’s apartment was in the front part of the building on the second floor, and no one resided on the first floor immediately below. The building fronted on Wentworth Avenue and the entrance to the building housed a stairway with about 25 steps leading straight up to the second-floor apartment. This was the only means of access to plaintiff’s apartment. There was a banister along the stairway, and plaintiff testified that about a month and a half before the accident, upon notice from her as to its defective condition, Mr. Savage personally came to the building to fix the banister. Plaintiff observed him pull the banister off the walls with his hands and then reattach it by driving nails through the banister into the wall. In the weeks intervening between the time of this repair work to the banister and the time of the accident, plaintiff noticed that the banister was still loose, but she did not notify Mr. Savage of this fact and the latter did not return again to the premises prior to the accident. No one else attempted to repair the banister. The stairs were constructed of wood, and on several occasions plaintiff had observed nails exposed from the uncovered wood. She or her late husband would sometimes attempt to remove the nails, but many remained.

At about 10:00 a. m. on November 27, 1963, plaintiff, dressed in her work clothes (plaintiff was a dietician), left her apartment and began to descend the stairs. Her right hand was on the banister and after she had taken two steps there occurred the accident which plaintiff described as follows:

Well, I was going downstairs, and I know we had some nails — there was some nails in the stairway. Kept rising, but often they nail them. I stepped on the nail and caused me to slide. My foot got hung to my coat, and I held on the banister with my hand. When I fell — and when I fell me and the banister— we went downstairs.

Photographs of the condition of the stairway and banister at the time of the accident were admitted in evidence.

Defendants’ argument proceeds as follows: (1) the stairway in question was not a common stairway; (2) where a stairway on the leased premises is in the exclusive possession of the tenant, the landlord is responsible only for concealment of known defects and this principle is not affected by a general covenant to repair; (3) there was no evidence that defendants had concealed any known defects. This argument is a product, we think, of a misconception of plaintiff’s theory of the case. While plaintiff charged in one part of her complaint that the stairway in question was a common stairway and that defendants had a duty to use reasonable care in its maintenance, she also charged that her injury was a proximate result of Mr. Savage’s “negligently attempted repairs on the handrail.” In this court plaintiff disavows that her theory of recovery was based on a common stairway. She did not submit an instruction on the law concerning common stairways, and, indeed, concedes that there was no proof of a concealed defect known to defendants in this case.

Where the jury verdict is supported by one legitimate theory of recovery, defendants do not advance their cause by relying on other theories which may not have been proved. Absent a common stairway, and none was proved here, a landlord is under no obligation to repair portions of the rented premises which are in the exclusive use of his tenant unless there is proof that the landlord had actual knowledge of the defect and fraudulently concealed it. Taylor v. Geroff, 847 Ill App 55, 59, 106 NE2d 210; Breazeale v. Chicago Title & Trust Co., 293 Ill App 269, 12 NE2d 217. But in this case there is evidence that at the time plaintiff rented the premises, the Savages promised to maintain them in good repair. More important, there is evidence of conduct which implements this promise and supports plaintiff’s charge of active negligence against the owners. Informed by plaintiff of the defective condition of the banister, Mr. Savage proceeded to make the repairs, and in so doing was either attempting to meet his already existing obligation (if we credit the alleged oral promise to repair) or he was enlarging his responsibility to plaintiff by a voluntary undertaking. In either circumstance he was obligated to exercise ordinary care in accomplishing the repair. As this court stated in Nelson v. Union Wire Rope Corp., 39 Ill App2d 73, 121-122, 187 NE2d 425:

There can be no doubt that the law has for many years recognized the principle that liability can arise from negligent performance of a voluntary undertaking. (Coggs v. Bernard, 2 Lord Raymond 909; 86 CJ2d 927; 38 Am Jur 659; 5 HLR 222.)
Thus, for example, a landlord who is under no obligation to repair the premises, but who nevertheless makes repairs, and does so negligently, is liable to his tenant . . . for injuries caused by such negligence. (Roesler v. Liberty Nat. Bank of Chicago, 2 Ill App2d 54, 118 NE2d 621; Kimmons v. Crawford, 92 Fla 652, 109 So 585.)

The case of Roesler v. Liberty Nat. Bank of Chicago, 2 Ill App2d 54, 118 NE2d 621, not cited by either party, is remarkably similar on its facts to the present action. There, plaintiff alleged that defendant negligently maintained a common stairway, negligently failed to repair some loose steps therein, and as a result of such negligence plaintiff was injured. At the trial the evidence in Roesler showed that:

Plaintiff, over a period of nine years, was the first-floor tenant of defendant; that a rear staircase, used exclusively by plaintiff and not in common use by the other tenants, led from the rear of her apartment to the ground; that the stairway consisted of five wooden steps, which she used on an average of once a week when taking out the garbage; that over the period of nine years a custom was established of complaints made by plaintiff at the office of defendant whenever something in the apartment needed fixing, and thereupon defendant would dispatch a carpenter ... to make the necessary repairs; that some time in January 1949, plaintiff made complaint at defendant’s office about the stairway in question being loose; that in response to the complaint, . . . the carpenter put some nails in one of the boards on the step, and then told plaintiff that the steps were all right, .... (At pp 56-57.)

The complaint was then amended to conform with the proof and charged that “defendant voluntarily undertook to make repairs on said stairway, and negligently repaired the same so that it remained in a defective and hazardous condition, and failed to exercise ordinary care in the repair of said defective condition, resulting in an accident and injury to plaintiff.” In answer to defendant’s argument that he was under no obligation to make the repairs and he should not be held liable for a gratuitous undertaking, the court stated at pages 58-60 :

When defendant dispatched a carpenter in response to her complaint, to make the necessary repairs, it became the duty of defendant to examine the staircase and determine its condition of safety. If a reasonable inspection would disclose the rotted condition of the step which broke, and upon which plaintiff fell, then it should have been apparent that the driving of several nails into the board was not sufficient to remedy the condition, and a jury could well determine that defendant was negligent in the repair work undertaken. . . .
“ Tt is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.’ ... A landlord in these circumstances is not charged with liability on the basis of the non-performance of a voluntary promise. He is charged with liability because having chosen to perform he has thereby become subject to a duty in respect of the manner of performance. . . . The tenant does not have to prove that by the negligent making of the repairs what was wrong has been made worse. His case is made out when it appears that by reason of such negligence what was wrong is still wrong, though prudence would have made it right.” [Quoting Marks v. Nambil Realty Co. Inc., 245 NY 256, wherein Justice Cardozo quoted from another of his decisions in Glanzer v. Shepard, 233 NY 236.]

Plaintiff in the instant case testified that she observed Mr. Savage as he performed repairs on the banister: “He finished pulling it off the wall, and, then, attached it back on them. . . . Just took his hand and pulled it on off, and he got nails and put it back on.” Photographs of the stairway submitted in evidence reveal that Mr. Savage attached a board to the banister and then secured the board and banister into the wall plaster with straight nails. The jury could reasonably have concluded from the cracked and deteriorated condition of the wall plaster, clearly shown by the photographs in evidence, that straight nails would not be adequate to secure the banister under the stress of use, and that their use under these circumstances constituted negligence.

While defendants contend further that the giving way of the banister was not a proximate cause of plaintiff’s injuries, this was for the jury to determine; and also to decide whether the sole proximate cause of plaintiff’s injuries was the catching of her foot in her coat when she stepped on a nail, or the failure of the banister to support her when she sought to right herself. We think there is ample evidence to support the verdict of the jury.

Finally, defendants urge that the court erred in giving plaintiff’s instructions 18 and 20 and refusing to give defendants’ instruction 18. Plaintiff’s instruction 18 informed the jury that “[a] landlord who undertakes to make improvements or repairs upon the leased premises is under a duty to use ordinary care in carrying out the work.” As we have indicated above in this opinion, this language properly instructed the jury on the theory of plaintiff’s case. Plaintiff’s instruction 20 informed the jury that “[i]f a landlord agrees to keep a tenant’s premises in a state of good repair, then the landlord must use reasonable care to see that the premises are kept in a state of good repair.” This instruction was also proper since there was evidence in the record that defendants had initially agreed to maintain the rented premises in a state of good repair. Defendants’ refused instruction 18 would have informed the jury that if they found that the stairway in question was not a common stairway, then defendants’ liability could only be based on failure to disclose to plaintiff defects which were known to defendants. For the reasons indicated, there was no error in the refusal of this instruction.

The judgment of the Circuit Court is affirmed.

Affirmed.

DKUCKEK and McCORMICK, JJ., concur.

       Plaintiff’s amended complaint, which charged that defendants had “negligently attempted repairs on the handrail,” also places defendants within the reach of § 17(1) (b) of the Civil Practice Act which subjects a person to the jurisdiction of the court if he has committed a “tortious act” within the State. The proof, however, shows that Steve Savage alone made the repairs, so this provision would not have submitted Pearl Savage to the jurisdiction of the court.

       There is no question hut what the magistrate had jurisdiction to hear the case despite the improper assignment. Coleman v. Scott, 76 Ill App2d 417, 222 NE2d 5.

       The evidence showed that the Savages transferred title to the building to Simack approximately three years prior to plaintiff’s accident. However, plaintiff testified that at all times she paid her rent to the Savages. When the Savages were in Arizona, she would send the rent to them by mail. Simack stated: “The building was in my name, sir. And since my in-laws were in Phoenix, I was more or less a caretaker in their name.”

       Defendants attempted to elicit on cross-examination that plaintiff wore a long house coat at the time of the accident, but plaintiff denied this.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Johnson, Defendant-Appellant.
    Gen. No. 50,583.
    First District, Fourth Division.
    August 18, 1967.

      Howard T. Savage, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Offenses Charged in the Indictment

(1) Burglary.

(2) Possession of burglary tools.

Judgment

After a jury trial, defendant was found guilty of both charges and was given concurrent sentences of 10 to 25 years for burglary, and 1 to 2 years for possession of burglary tools.

Points Raised on Appeal

(1) The charge of burglary was not proved beyond a reasonable doubt.

(2) There was neither evidence of burglarious intent nor evidence to connect the burglary tools to the burglary charged, so the State failed to prove the offense of possession of burglary tools.

(3) The court permitted inadmissible evidence to go to the jury.

(4) There was prejudicial error in the State’s closing argument.

(5) The State’s instruction given on circumstantial evidence was. erroneous, and it was error to refuse defendant’s instruction on circumstantial evidence.

Evidence

Testimony of State Witnesses

Mary Lund

She was fifteen years old and resided at 1014 Dins-more Eoad, Winnetka. On the evening of July 9, 1964, at approximately 11:30 p. m. she completed taking her shower prior to retiring. She stepped out of the bathroom located next to the guest room on the second floor. Just then she heard noises resembling “running down our stairs, and also like keys or change in the pocket was jingling.” Her younger sister was asleep and no one else was home. From the landing, Mary looked downstairs, saw that the lights were off, and observed nothing unusual. However, as she passed her parents’ bedroom on the second floor, she saw that the lights were turned on, three drawers were open in her mother’s dresser, and the contents were in a state of disarray. The top drawer of her father’s dresser also was open. At no time did she see the person whom she had heard go down the stairs. She called the police and they arrived right away. They found the front door and the basement door locked, but the kitchen door was open. Mary could not be sure she had locked it before she took her shower.

George L. Krueger, Winnetka Police Officer

At 11:41 p. m. on July 9, 1964, he responded to Mary Lund’s call concerning a prowler. In an unmarked police car he drove to the intersection of Dinsmore Road and Rosewood Avenue in about a minute and a half. There he noticed an Oldsmobile parked on the west side of Rosewood, south of Dinsmore. He called for a license check and ascertained that the license plates had been issued to a James Highland of Wilson Avenue, Chicago, for use on a Chevrolet. Officer Krueger drove past the Oldsmobile but saw no one in the car. He turned around and parked behind the Oldsmobile. It was dark at that location. He had been watching the car for about three minutes, when he saw the car light go on. He radioed for assistance and then pulled his car to the front of the Oldsmobile and saw a man standing beside it. He approached the man and asked him what he was doing there. The man replied that he was driving by when his car broke down and stalled. He identified himself by his driver’s license as Joseph Johnson, 1080 Sheridan Road, Winnetka, at which address he had formerly been employed. Officer Wallace arrived just as Officer Krue-ger began to question Johnson. The latter told Krueger that he had recently purchased the Oldsmobile and had transferred license plates from a Chevrolet which he had bought with those plates. Johnson said that he was en route from his place of employment at 195 Maple Hill Road, Glencoe, to his home at 1322 Sedgwick in Chicago when he became lost and his car broke down. He stated he had come up Tower Road, made a turn and ended up on Rosewood. Tower and Rosewood do not intersect, however, and Tower Road is about a quarter mile from the corner of Dinsmore and Rosewood. Defendant was dressed in a black suit, white shirt, black tie, black loafers, and wore no socks. The night was warm, the streets dry, and the ground damp with dew. Defendant was arrested for “fictitious plates” and was taken to the police station where a search of his person revealed a wallet with currency in his left rear pocket and a half dollar and pennies in his right front pocket. Officer Wallace found two Kennedy half dollars in defendant’s right rear pocket. On cross-examination Officer Krueger related that defendant told him that his car had a vapor lock. The Oldsmobile was parked about a half block from the Lund home. There were no other cars in the area. As far as Krueger was able to ascertain, defendant’s story about the transferred plates was true. Under the front seat of the Oldsmobile was found a pint bottle half full of vodka, a small crowbar and a bolt puller, or lock puller.

Gordon Wallace, Winnetka Police Officer

He answered a call to assist Officer Krueger at the corner of Rosewood and Dinsmore at about 11:41 p. m. on July 9, 1964. When he arrived, he parked his squad car and walked up to Officer Krueger and defendant. Defendant wore a black suit, a white shirt, a tie, black loafers, and no socks. His shoes were highly polished and dry. Upon hearing “something jingling,” Officer Wallace searched defendant’s right rear pocket and discovered two brand new Kennedy half dollars. There was nothing else in that pocket. Wallace explained that he kept the half dollars at that time because they were found in a different location from defendant’s other change. He then searched under the front seat of the Oldsmobile and found at the left-hand side a pry bar and a lock puller, as well as a bottle of vodka, half empty. In the center on the front seat he found a pair of pliers. The tools and the half dollars were admitted into evidence. Wallace stated, over objection, that one of the tools resembled a cable cutter but differed from a standard cable cutter in that it had “been ground down on either side of the tongs to make the opening wider, and thinner at the point.” Also over objection, Wallace stated that from his experience as a police officer, he knew that the purpose of narrowing the point of such an instrument was so it could be “used to put on a lock, a round, tumbler type lock, and clamp down and twist the lock, pull the lock out.” In this condition the tool is known as a “lock puller.” Wallace asked defendant why, if his car had been causing trouble, he had not stopped at a gas station at the corner of Tower and Linden which he had passed on the way. That station was open and was about five blocks away from the Lund home. Defendant said he was not aware that there was a gas station at that corner. He said his car had broken down but he did not know what the trouble was. Defendant did not tell him that his car had developed a vapor lock.

Edward B. Jacobs, Winnetka Police Officer

As he was reporting for duty on July 9, 1964, at about 11:40 p. m., he was informed that a burglary was in progress at 1014 Dinsmore Road, and proceeded to that location, covering the back door from the yard. He thereafter helped Officers Krueger and Wallace take defendant to the police station. The next morning, at about 6:00 a. m., Officers Jacobs and Krueger returned to the Lund home. They searched the area on foot and discovered a jewelry box containing jewelry, necklaces and rings, a box with a necklace in it, and a razor or hair-trimmer “stacked in a pile” on the parkway by some bushes off Rosewood near Dinsmore. Just south of this location, at the driveway for the corner house, the officers discovered a transistor radio under the bushes. In the course of the search, the officers also found a pair of wet green socks near the rear door next to the driveway of that corner house (on the southeast corner of Rosewood and Dinsmore, facing Dinsmore). The wet socks were in a covered garbage can underneath some newspapers which were dry. The grass in that area was wet with dew from the night before. Opposite the driveway of the corner house, about 15 feet west of the west curb line of Rosewood the officers also found a glove. The glove was later matched to another glove found underneath defendant’s Oldsmobile when the car was moved the night before by another officer. The officers took the jewelry boxes, the razor and the radio to the Lund home, where Mr. and Mrs. Lund identified them as their property. The gloves and socks were not checked for ownership with anybody in the neighborhood. To get to the Lund home from defendant’s automobile, you would have to walk across Rosewood Avenue and eastward.

Clarence S. Lund

He was the owner of the burglarized premises. On the evening of July 9, 1964, he and his wife went out to dinner, leaving his two daughters home alone. When he and his wife returned home at about 11:45 p. m., he found police cars at the house. Upon going to his bedroom, he found dresser drawers open and some things missing. He did not investigate thoroughly at that time, but noted that some jewelry was missing. On a fishing trip in Wisconsin he had obtained four Kennedy half dollars, two of which his wife had placed in a small cloth coin purse in her dresser drawer. The purse was there but the Kennedy half dollars were missing from the dresser drawer when he returned home from dinner that night. The half dollars taken from defendant and admitted into evidence were similar in appearance to those which had been in the dresser. After the police searched the premises for the burglar, they left. Officers Wallace and Jacobs returned the following morning at about 6:00 a. m. At this time Mr. and Mrs. Lund identified the jewelry boxes, jewelry, a transistor radio and a comb with razor blade as their property. All missing items were returned. The Kennedy half dollars were identifiable only by the fact that they were brand new and had not been in circulation.

Testimony of Defendant’s Witnesses

Eddie Qualls

He had known defendant for about four years. Defendant and eight or nine other people played a game called “Georgia Skin” at Qualls’ house on July 8, 1964. Defendant won $200 or $300. Qualls told defendant that he had obtained some Kennedy half dollars at a currency exchange. Defendant purchased two of them from Qualls for $5. On cross-examination, he said he was not sure that the game was on July 8.

Floyd Johnson

He is a brother of defendant and was self-employed in maintenance work as a carpenter. The Oldsmobile in defendant’s possession at the time of his arrest belonged to Thurman Johnson, defendant’s nephew. The witness had used the car on July 8, 1964, and had placed bolt cutters, a crowbar and a screwdriver in the car at that time. He had purchased the bolt cutters to cut the bolts off a wall in a barber shop so that the mirrors in the shop might be moved. He had had the bolt cutters ground down at a hardware shop. When he was through using them he put them under the front seat of the Oldsmobile.

Walter Bregman

He employed defendant as chauffeur and houseman at his home in Glencoe. He had discussed with defendant the latter’s tardiness to work and had suggested a time-saving route for him to take on the way to work. He advised defendant to take Sheridan Road, if Edens expressway was crowded, in order to get to work on time. He did not know that defendant had previously been employed and lived in Winnetka. Bregman’s residence was located about ten minutes from Winnetka. Defendant left work between 10:15 and 10:30 p. m. on the night of July 9,1964.

Thurman Johnson

He is a nephew of defendant. On July 8, 1964, Thurman used his Oldsmobile to assist his uncle, Floyd Johnson, in remodeling the latter’s barber shop. He, Thurman, owned the Oldsmobile. He had bought it from a fellow who had it for sale with the license plates on. He did not get any plates of his own after buying the car. Defendant was driving the car when he was arrested in Winnetka. All of the tools found in the Oldsmobile at that time had been used at the barber shop on the day before. He had used the bolt cutters to pull nails out of the plaster ceiling of the shop, and when he was through, he then placed them underneath the left front seat of the car.

Defendant’s counsel stated for the record that after a conference with his client, the defendant told him that he did not desire to testify.

After the jury’s verdict, at the hearing in aggravation and mitigation, the court was advised that in 1941 defendant had been given a suspended sentence for auto theft in Mississippi; that on October 9, 1942, in Cook County, he had been given three concurrent sentences for larceny from person (1 to 10 years), assault to commit rape (1 to 14 years), and robbery (1 to 20 years); that he was released from the penitentiary in 1954, and on January 6,1955, was sentenced, again in Cook County, to a term of 8 to 10 years for burglary.

Opinion

(1), (3). Defendant contends that the evidence does not establish his guilt of the burglary beyond a reasonable doubt. The State relies upon the following six separate circumstances in evidence, which it contends constitute sufficient support for the jury’s verdict.

Defendant’s Presence at the Scene of the Burglary

Since defendant did not testify, he accepts in his brief, the explanation which the police officer said defendant gave at the time of his arrest to explain his presence at the scene of the burglary. The essentials of that story are that he was on his way from his place of employment at 185 Maple Hill Road (near Sheridan Road) in Glencoe to his own home at 1322 Sedgwick in Chicago; that he had driven on Tower Road, Winnetka, but turned off that street; that he then became lost and his car stalled. In the light of the geography involved, and the other evidence upon which defendant relies, it would be difficult to conceive of a more ridiculous explanation.

Defendant’s employer testified that he had suggested to defendant that when Edens expressway was crowded, he take Sheridan Road in order to get to work on time. He did not testify that he suggested any route by which defendant should go home after work. Nevertheless, from this testimony defendant argues that he got lost because he was following his employer’s direction to take a strange route home; that this accounted for his being only ten minutes away from his employer’s home almost 11/2 hours after he left there to drive to Chicago. There are many things wrong with this argument. As mentioned, the employer did not tell defendant how to go home. Further, his only suggestion was for times when Edens expressway was crowded during a rush hour, and 10:15 at night is not a crowded rush hour. Defendant was not driving the suggested Sheridan Road route, anyway. From Maple Hill and Sheridan Roads in Glencoe, defendant may have followed Sheridan to Tower Road, Winnetka, but, according to his story, he was driving west on Tower Road when he turned off that street and got lost. That defendant could have gotten lost in this area is completely incredible when we bear in mind that his driver’s license showed his address as 1030 Sheridan Road, Winnetka, which he described as his previous place of employment. This address is only a block or two north of Tower Road and precisely on what defendant calls the strange new route which he claims he was unable to follow, and from which he would have been required to make a right-angle turn in order to go west on Tower.

Tower Road is one of only four or five principal thoroughfares in the Village of Winnetka and is a through street for most of its route. It is also the only street in Winnetka running directly west from Sheridan Road to Edens expressway. If defendant had decided that a quicker way home would be to go west from Sheridan road to Edens, one who had lived and worked in the area could not help knowing that route, and there would have been no reason in the world for him to have turned off on a narrow side street which would eventually have taken him to Rosewood and Dinsmore. Rosewood runs north and south but does not intersect Tower, and Dinsmore is only one short block long.

As to the supposed stalling of defendant’s car, it appears that after a short conversation between the police and defendant at the time of his arrest, a policeman was able to drive the car to the police station. This and the other matters outlined above, make applicable here the sound statement of the Supreme Court that when “a defendant elects to justify or explain his presence at or near the scene of the crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.” People v. Lobb, 17 Ill2d 287, 294, 161 NE2d 325.

The Wet Socks

Defendant argues that the wet green socks were not probative of his guilt because there was no evidence to connect them to him or to the burglary. The facts that the socks were not found on the burglarized premises but at a nearby corner house, that they were not discovered until the morning after the burglary, and that the police witness admitted he did not question the residents of the corner house as to the ownership of the socks, all would have some hearing on the eviden-tiary weight to be accorded the socks by the jury. We believe, however, that these facts did not deprive this evidence of all probative value nor render it inadmissible. There remained also for the jury’s consideration the highly unlikely fact that defendant had performed his duties as chauffeur earlier that evening in full work dress but without socks. With reasonable inferences from the evidence, the jury could have reconstructed the crime as follows: the burglar had explored the Lund home in stocking feet, had left by the back kitchen door when interrupted, had followed the direct route from that point to defendant’s car over the wet grass of the back yards of the homes on the south side of Dinsmore Road, had deposited his wet socks in the garbage can at the rear driveway of the corner house and attempted to conceal the socks by putting a newspaper on top of them, had put on his dry shoes which had been left there on the way to the Lund home, and thereafter, walking on dry pavement, had gone the remaining short distance to his car, where he was again interrupted before he could put the jewelry boxes and radio into the car.

The Gloves

Testimony concerning the gloves was given by Officer Jacobs who did not examine the scene of the burglary until 6:00 a. m. the following morning. Jacobs stated that he and Officer Krueger searched the area around the Lund home on foot and discovered a glove on the west side of Rosewood opposite the private driveway at the corner of Rosewood and Dinsmore and near where the Oldsmobile had been parked. This glove was said to match another glove found the night before by Officer Kretch and Lieutenant Unger when they drove the Oldsmobile to the police station.

Defendant again complains that this item of evidence was not sufficiently connected to him to be probative of his guilt. We think otherwise. One glove was found under defendant’s car after it was moved, and the other was found in close proximity thereto. Under the circumstances, we think the gloves were sufficiently associated with defendant to be properly considered by the jury. Furthermore, any error in this regard could not have been sufficiently prejudicial to justify reversal.

The Tools

Defendant contends that the tools were not probative evidence against him under the charge of burglary because they were not connected to the burglary by any evidence in the record. While it is true that no direct evidence was presented which linked any of the tools found in defendant’s possession to the method of entrance employed by the burglar, such proof is not required. All that is required is proof that a burglary was committed and that defendant was found to have burglary tools in his possession shortly thereafter. People v. Urban, 381 Ill 64, 68, 44 NE2d 885; Williams v. People, 196 Ill 173, 63 NE 681.

Mary Lund testified that after she became aware of the burglary, she noticed that the kitchen door of her home was open. The other doors were locked and she did not recall whether or not the kitchen door had been locked prior to the time she started her shower. Considering this and all the other circumstances in evidence, we think the tools had probative value and were thus properly admitted.

As to the tools, it was also appropriate for the jury to consider their nature, and particularly the modification which had been made in one of the tools to convert it into what one of the police officers described as a “lock puller.” Defendant’s brother said that he had the alteration performed so he could cut bolts on a barbershop mirror. He also testified that after using it for that purpose, he put it into the Oldsmobile. Defendant’s nephew, however, testified that he used it to pull nails from the ceiling and that he then put it into the car. Both these witnesses said the car was Thurman’s, while the policeman said that defendant claimed it as his and that defendant’s story checked out. Defendant, in his brief, also adopted the police testimony on this score, even though it thus casts strong suspicion on the testimony of defendant’s relatives.

The Stolen Property

Defendant contends that the jewelry boxes and other stolen property did not properly qualify as evidence against him, because they were not found in his possession and were not connected to him. This argument ignores not only all the other circumstances introduced into evidence, as related above, but it also ignores the fact that the stolen property was found stacked under bushes on the route from the Lund home and in close proximity to defendant’s car. In such circumstances, we believe that the admission of the stolen property was proper. People v. Bryan, 27 Ill2d 191, 195, 188 NE2d 692; People v. Stanton, 16 Ill2d 459, 469, 158 NE2d 47.

The Two Kennedy Half Dollars

These were found in defendant’s right rear pocket by Officer Wallace at the time of the arrest. Defendant contends that they should not have been admitted into evidence because at the time of the arrest the police had no idea that Kennedy half dollars had been stolen and because there was no evidence to prove that these were the half dollars stolen from the Lund home. Defendant’s first objection is satisfactorily explained by Wallace’s testimony in which he stated that he kept the Kennedy half dollars because he found them in a different pocket from defendant’s other change. As to the second objection, defendant is correct that no witness was able positively to identify the Kennedy half dollars found on defendant as being those stolen from the Lund home. However, it has been held that items which are not distinguishable from those stolen but lack readily identifiable features may still be admitted into evidence if found in defendant’s possession immediately after commission of the crime. People v. Sellers, 30 Ill2d 221, 224, 196 NE2d 481; People v. Rogers, 16 Ill2d 175, 157 NE2d 28.

While the testimony of defendant’s friend Qualls (that he had sold the two half dollars to defendant the night before for $5) may be considered as having tendered a lawful explanation for their possession by defendant, it had no bearing on the admissibility of the coins. It did, however, present to the jury a subsidiary question of credibility, and Qualls’ story could properly have been tested by the jury against what defendant would argue was the coincidental circumstance of defendant’s being very near to the scene of the burglary, very shortly thereafter, with two coins in his hip pocket (not the same pocket with other change), and the two coins being indistinguishable from the two coins which had just been stolen.

While it is true that all the evidence adduced against defendant is circumstantial in character, the weight and effect to be accorded it should be no less than that given to direct evidence. People v. Taylor, 410 Ill 469, 475, 102 NE2d 529; People v. Buskievich, 330 Ill 532, 162 NE 196. We conclude that the totality of the foregoing circumstances establishes defendant’s guilt of burglary beyond a reasonable doubt. People v. Hansen, 5 Ill2d 535, 126 NE2d 243; People v. Russell, 17 Ill2d 328, 161 NE2d 309.

(2) As the basis for reversal of his conviction for unlawful possession of burglary tools, defendant contends that there was no evidence to prove the requisite criminal intent to use the tools. The tools found in defendant’s possession included a crowbar, a pair of pliers and a pair of cable cutters which was modified to the extent that it could be used to clamp on to “a round, tumbler type lock,” twist it and pull it out. Because of this modification, Officer Wallace termed the tool a “lock puller.” There is no question that either such an implement or a crowbar may be used to effect a breaking and entering. While there was testimony given by defendant’s witnesses that the cable cutters were “ground down” for the purpose of removing bolts in a barber shop, it has been held that the suitability of tools for a breaking renders it immaterial that they were also adapted for a lawful purpose. People v. Taylor, 410 Ill 469, 478-474, 102 NE2d 529.

When confronted by the arresting officer, defendant claimed ownership of the Oldsmobile. While the record is silent as to defendant’s reaction at the time the tools were found, it is now suggested that testimony of Thurman and Floyd Johnson to the effect that Thurman was the owner of the car gives rise to an inference that defendant had no knowledge that the tools were in the car. This suggestion does not appear reasonable, however, since Officer Krueger testified that the police checked out defendant’s claim of ownership of the car and, as far as they were able to ascertain, defendant’s claim of ownership was valid. Furthermore, in at least several places in his brief defendant adopts the testimony of the policeman as to what defendant said concerning ownership of the car and his reason for being at that location. All this is sufficient, we think, to demonstrate that defendant had knowledge that the tools were in his possession.

In the light of the foregoing, if the requisite criminal intent was proved, the conviction on this charge must stand, and there need not be proof of a specific character, a general burglarious intent being sufficient. People v. Taranto, 2 Ill2d 476, 482, 119 NE2d 221. In a case such as this, where there is no confession, the essential element of intent must ordinarily be proved by circumstantial evidence. People v. Faginkrantz, 21 Ill 2d 75, 80, 171 NE2d 5. We shall not repeat the facts which make up the situation in which defendant found himself in this case. The mosaic of incriminating circumstances here is much stronger than in the two principal cases relied on by defendant in regard to possession of burglary tools. People v. Taylor, 410 Ill 469, 102 NE 2d 529; People v. Polenisiak, 26 Ill2d 317, 186 NE2d 271. We conclude that defendant’s guilt was adequately established as to the second count of the indictment also.

(3) Defendant further contends that the trial court was in error in overruling an objection to testimony of Officer Wallace describing the purpose of narrowing the prongs on the cable cutters found in defendant’s possession at the time of his arrest. Defendant argues that Wallace’s characterization of the cable cutters in its modified state as a “lock puller” invaded the province of the jury. We do not share defendant’s view in this regard. The testimony did not touch upon the ultimate question of intent with which defendant possessed the tool, but dealt instead with the functional aspect of the tool as it appeared when found. Testimony of police witnesses which has even characterized tools found in a defendant’s possession as those “commonly used by burglars” has been held properly admitted, and we think it was not improper to accept the milder testimony on this subject in the case at bar. People v. Taylor, 410 Ill 469, 472, 102 NE2d 529.

(4) Defendant argues that reversible prejudice was injected by the prosecutor in his closing argument; that part of the argument was inflammatory and part was based upon matters not in evidence. Because the record shows no objection was raised in the trial court as to any of the State’s Attorney’s closing argument, we are not obliged to consider error assigned on this ground. People v. Donald, 29 Ill2d 283, 194 NE2d 227; People v. Sinclair, 27 Ill2d 505, 190 NE2d 298. We have reviewed the objections raised, however, and do not consider them of the magnitude of reversible error. Comments about the habit and effect of a burglar did no more than point out the evil results of crime and urge a fearless administration of the law. People v. Burnett, 27 Ill2d 510, 517, 190 NE2d 338; People v. Moore, 9 Ill2d 224, 137 NE2d 246. Another comment raised the question of what might have occurred had Mary Lund stepped out of the shower sooner, and, in addition, suggested to the jury the course of escape of the burglar when he heard the shower turned off. We think both of these remarks were fair comment by the prosecutor based on legitimate inferences from the circumstances proved. People v. Sullivan, 22 Ill2d 122, 174 NE2d 860.

(5) Finally, défendant contends that the court erred in giving the State’s instruction No. 6 while at the same time refusing defendant’s instruction No. 3. Both instructions were on the subject of circumstantial evidence. The objectionable language in the State’s instruction, as set out by defendant, is as follows: “The law demands a conviction wherever there is sufficient legal evidence to show the defendant’s guilt beyond a reasonable doubt and circumstantial evidence is legal evidence.” This identical language in an instruction has been approved in People v. Graves, 331 Ill 268, 275, 162 NE 839. Furthermore, there was no objection raised by defendant in the trial court. People v. Minor, 20 Ill 2d 496, 499, 170 NE2d 555.

On the other hand, the last sentence in defendant’s refused instruction No. 3 rendered the entire instruction incorrect, and therefore the instruction was properly refused. In summary, this instruction required the jury to find the defendant not guilty unless the circumstances excluded “to all moral certainty, every other hypothesis but the single one of guilt of the defendant.” If this approach were to be followed in an instruction, it is not “every other hypothesis” of defendant’s innocence which must be excluded on the basis of the evidence, but every “reasonable hypothesis.” People v. Guardino, 13 Ill2d 58, 63, 147 NE2d 338; People v. Dougard, 16 Ill2d 603, 607, 158 NE2d 596. The same type of fault is found in the language, “to all moral certainty.” If this clause may be equated to “beyond a reasonable doubt” (and we much prefer the latter), the clause used in defendant’s instruction including the word “all” would erroneously imply that, in order to convict, the jury would have to find proof of guilt beyond all doubt.

More importantly, we have given consideration to all the instructions given by the trial court and we conclude that the instructions as a whole were fair and correct.

Decision

While defendant’s sentence (10 to 25 years) is a severe one, we cannot say that it is excessive, in view of the fact that defendant has spent most all of the last 25 years in the penitentiary under sentences for four different major crimes including burglary. (See this opinion, above.)

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats 1963, c 38, § 19-1 (a):
      A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, ... or any part thereof, with intent to commit therein a felony or theft.

       Ill Rev Stats 1963, c 38, § 19-2:
      Whoever possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, house trailer, watercraft, aircraft, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft shall be imprisoned in the penitentiary from 1 to 2 years.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert S. Schehr, Defendant-Appellant.
    Gen. No. M-51,059.
    First District, Fourth Division.
    August 18, 1967.
    Sydney B. Wexler and Morris J. Wexler, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Charge

(1) Disorderly conduct.

(2) Resisting a Peace Officer.

Defense at Trial

Defendant did not commit the acts upon which the charges were based.

Judgment

After a bench trial, the court found defendant guilty of both crimes and imposed a fine of $50 for each offense.

Points Raised on Appeal

Defendant was not proven guilty beyond a reasonable doubt.

Evidence

Testimony of Witnesses for the State

Leonard Sykes, a Chicago police officer, testified that at about 12:00 noon, on May 27, 1965, he was in the vicinity of the building at 1212 North Lake Shore Drive, Chicago (within which hearings were being held by the UnAmerican Activities Committee of the United States House of Representatives) and that he saw defendant, in a group of other persons, walk down the sidewalk beside the building. Defendant then jumped a barricade and, after unsuccessfully attempting to pass through police lines formed in front of the door, sat down with other persons before the entrance. When first requested to leave the property and then warned that a failure to do so would cause their arrest, defendant and the others said nothing, but linked their arms and remained sitting. Defendant was placed under arrest, disengaged from his companions, and then, because he refused to walk, had to be bodily carried to a police van.

On cross-examination, Officer Sykes testified that he had no written report other than a police arrest slip, and that he was testifying from recollection as to events which occurred four months prior to trial.

Gary Rodigan, also a Chicago police officer, corroborated the testimony of Sykes. On cross-examination, he stated that he did not make the physical arrest, but that he signed the complaint against defendant for resisting Officer Sykes and another policeman.

Testimony of Witnesses for the Defense

Robert Schehr, the defendant, testified that he was a twenty-year-old student at the University of Chicago, and that on the day in question, he went to the Committee hearings at 1212 North Lake Shore Drive. Upon his arrival, he noticed a commotion in front of the main entrance. When he got a little closer he saw about twenty-five people seated in front of the entrance. Then police vans arrived, and with traffic barricades policemen started moving the crowd away from the front onto the other side of the sidewalk that runs from the building doorway to the street. He was pushed and moved to the grass bordering the north side of that sidewalk. At all times, he was behind the barricade and never sat down.

Police then began carrying away demonstrators, and there was some commotion near defendant in the crowd behind the barricade. As defendant turned around to see what the person next to him was doing, he noticed a policeman jump over the barricade from the sidewalk to the grassy side. The person next to him was grabbed by someone wearing a green sweater or sweatshirt and then defendant was “grabbed from behind and thrown down to the ground and on top of me was a man wearing coveralls.” Defendant was sat upon, choked, and his arm was twisted before he was picked up and put into a police van by the man in coveralls. Defendant did not know the man’s name, but he was not Officer Rodigan or Officer Sykes, who defendant said filled out his arrest complaint at the 18th District jail. He said that “as far as I understand the word,” he did not “resist” a police officer.

On cross-examination, defendant stated that he did not actually know whether this man and others also dressed in coveralls were police officers since they were not wearing stars, as were the uniformed policemen at the scene, but he assumed they were policemen since they were “apparently officially maneuvering,” moving in and out of police vans, carrying people, and seeming to make arrests.

Eric Joseph testified that he was a fellow student at the University of Chicago, knew defendant, joined him at the demonstration, and was standing with him in the crowd behind the barricade. A few arrests were being made of people who were sitting down when several police officers came over the barricade into the crowd. This witness said that he later found out that one of the men, dressed in mechanic’s pants and a green sweater, was a police officer. The witness and defendant were knocked to the ground, arrested, and taken to a police van.

On cross-examination, Joseph stated that he and defendant were part of “a number of people that went down (to the demonstration) from the University of Chicago.” Although they did not go together, . . I met him as soon as I got off (a bus) at the demonstration; and I was with him during the whole time of the demonstration. We were in the picket line together, and when the sit-in took place we were together the whole time.” He said that, as he turned around to move back in response to police directions, he saw a policeman five or ten feet away from and running towards the defendant; that he, himself, was then knocked to the ground and when he was being carried to the police van, he again saw defendant on the ground with a policeman on top of him.

Judith Joyce, a sociologist, said that she happened to be in the courtroom while defendant was on the stand, and that she recognized him since she had also been at the anti-HUAC demonstration on May 27, 1965. Upon recognizing defendant, she sent a note to defense counsel through another counsellor who told her to wait in the hall. Although she admittedly walked up to take a good look at defendant while he was on the stand, she said she “wasn’t concentrating on listening, I was concentrating on the boy,” and the court permitted her to testify despite a rule excluding witnesses.

She said that she had gone to 1212 North Lake Shore Drive on that date because of her membership in “Women For Peace,” for the purpose of demonstrating, and had marched in a picket line and carried a poster. At one point, when she was not in the line, she saw some activity “to my left rear and turned and I saw him [defendant] fall with violence. . . . Whether he was pushed or shoved or what, I don’t know.” Defendant and the witness were on the same side of the barricade which was between them and the demonstrators, and neither of them was sitting down. While defendant was on the ground, a man in coveralls was on top of him, twisting his arm. When she reached to retrieve defendant’s eyeglasses, she was struck on the head with a police club. She withdrew and “was restraining a couple of people who wanted to get into the incident.” Defendant was then carried bodily to a police van.

On cross-examination, the witness stated that defendant was just on the other side of a barricade from her, so they were separated by only the width of the barricade, some eighteen inches. Nevertheless, she did not see from which direction the officer came, and did not see him knock defendant to the ground. She stated that she was emotionally upset because she thought the officer was using unnecessary force on defendant and that at first she thought defendant was a girl when he was on the ground. She also stated that she was in the crowd watching because she “felt that people should observe the manner in which the police did arrest these demonstrators.”

Opinion

The single issue presented on this appeal is whether the evidence was sufficient to prove defendant guilty beyond a reasonable doubt. Ill Rev Stats, 1963, c 38, § 3-1. The testimony of witnesses for the State directly conflicts with that of witnesses for the defense, but if the trial court chose to believe only the two police officers, the evidence was, we think, sufficient to support the trial court’s finding. It is the function of the trier of fact to decide which of conflicting stories to believe, basing its judgment not only on the language of the testimony presented, but also upon the demeanor and conduct of the witnesses it has the opportunity to observe. People v. Craddock, BO Ill2d 348, 353, 196 NE2d 672; People v. Woodruff, 9 Ill2d 429, 434, 137 NE2d 809. A reviewing court will not substitute its judgment on credibility for that of the trier of fact except where the evidence “is so improbable or unsatisfactory as to raise a serious doubt of defendant’s guilt.” People v. Coulson, 13 Ill2d 290, 296, 149 NE2d 96; People v. Ostrand, 35 Ill2d 520, 532-533, 221 NE2d 499; People v. Bailey, 76 Ill App2d 310, 317, 222 NE2d 268. In this case, the evidence presented by the State is not unsatisfactory, improbable or contradictory.

The defendant would have us reverse his conviction on the ground that the police officers were not to be believed because they “were emotionally involved in making arrests.” Further, that the prosecution testimony should be contrasted with that of the “two impartial eyewitnesses” for the defense. We cannot agree that the evidence indicates in any way that the police officers were in such an emotional state as to render their testimony unsatisfactory, improbable or contradictory. On the other hand, one of the defendant’s “impartial” witnesses was a person who was more than a casual acquaintance of the defendant, who was admittedly with him during the demonstration, and who was himself also arrested for the same offense. The other “impartial” witness was also a part of the same demonstration and had admittedly gone to the scene looking for such acts of police brutality as she claimed occurred at the time of defendant’s arrest. We need not comment more extensively on the witnesses in light of our holding above that the trial court is to assess credibility of witnesses and determine the weight, if any, to be given their testimony. People v. Coulson, 13 Ill2d 290, 295-296, 149 NE2d 96, and citations therein. This record presents no compelling reasons why the police officers should have been disbelieved and full credibility granted to the co-demonstrators who were witnesses for the defense. Accordingly, the judgment is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats 1963, c 38, § 26-1:
      (a) A person commits disorderly conduct when he knowingly:
      (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace; ....

       Ill Rev Stats 1963, e 38, § 31-1:
      A person who knowingly resists . . . the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined ... or imprisoned ... or both.

       The testimony of this witness on direct examination concerning her position and that of defendant in relation to the barricade can be reconciled with her answers on cross-examination only if she might have been referring to more than one barricade. There is no evidence of there having been more than one, however, so the trial judge may well have considered this a matter affecting her credibility, or demonstrating confusion on her part.


text:
    Edward Gedmin, Annabelle Gedmin, His Wife, Emma Kosiak and Michael Kosiak, Her Husband, David M. Markle and Markle Construction and Development Corp., an Illinois Corporation, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,427.
    First District, Fourth Division.
    August 18, 1967.
    Rehearing denied December 28, 1967.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellant.
    Maurice J. Nathanson, of Chicago (Marvin J. Glink, of counsel), for appellees.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

In a declaratory judgment action, the trial court entered an order declaring invalid and restraining enforcement of defendant’s Zoning Ordinance insofar as it presently classifies plaintiffs’ property as “R-2” and “R-3” and thereby prevents development of the subject property within the “R-4” classification. Defendant appeals, contending: (a) plaintiffs failed to adduce clear and convincing proof that the ordinance is invalid as applied to the subject property; (b) the surrounding uses being of paramount importance, the subject property is logically a part of a low-density residential area, and is therefore properly zoned in part for single-family use and in part for low-density multiple-family use; (c) the plaintiffs have not sustained any hardship due to the present zoning, and mere loss of potential profit which might be realized through zoning change does not, in itself, justify nullification of the ordinance; (d) owners of single-family residences and low-density apartments in the neighborhood, who purchased or built their homes in reliance upon the existing “R-2,” “R-3” classifications, have a right to rely upon their continuance.

The subject property, located in Chicago, has been divided into two parcels for analysis. Parcel #1 is bounded on the north by 94th Street, on the east by Morgan Street, on the south by 95th Street, and on the west by Genoa Avenue, a diagonal street which causes this parcel to be shaped somewhat like a triangle, with 95th Street as the base. The parcel contains about 86,000 square feet and is presently unimproved except for several old buildings, including a barn, a 2-story brick residence fronting on 95th Street, and 2 used-car sales office shacks.

Parcel #2 is across the street, immediately east of Parcel #1, at the corner of 95th and Morgan Streets, in the block bounded by 94th Street on the north and Sangamon Street on the east, with a frontage of 125 feet on 95th and a north-south dimension of about 139 feet along Morgan. It contains about 17,500 square feet and is presently improved with a 2-story frame dwelling facing 95th Street and a frame garage at the northeast corner of the tract.

In its frontage along the north side of 95th Street, Parcel #1 is zoned “R-3,” General Residence, to a depth of 139 feet. The remainder of the parcel is “R-2,” Single-Family Residence. Parcel #2 is zoned “R-3.”

To the west, Parcel #1 is separated from the Chicago, Rock Island & Pacific Railroad, which runs at grade, by the property of the H. Lang & Son Coal Company and by the width of South Genoa Avenue. The 95th Street frontage of the coal company is improved with a building containing general offices, salesrooms, and a display of furnaces and other equipment. To the north of the building are the company’s yards. North of 94th Street is a factory district facing directly across the street from Parcel #1 and immediately adjacent to the railroad. In this area are several large one-story industrial buildings. This industrially zoned area continues to the north and east of the subject properties in a triangularly shaped area, with 94th Street as the base, bounded by Sangamon Street on the east, diagonally on the west by the railroad tracks, and by 92nd Street on the north. The large area of two and one-half blocks adjoining to the east is zoned “R-2” and improved by single-family residences. Along the railroad tracks to the north of the triangular industrial area and north of the “R-2” zone are more industrially zoned uses.

To the east of Parcel #1, in the same block with and north of Parcel #2, on Morgan Street between 94th and 95th Streets, and facing west (across Morgan Street, Parcel #1 and Genoa Avenue to the coal yard) are eight new single-family dwellings in an “R-2” zone. In the same block and to the east of Parcel #2, in an “R-3” zone fronting on 95th Street, are a number of multiple dwellings, some of which are of recent construction. In the next block east, also fronting on 95th Street, are three more new “R-3” multiple dwellings.

To the south of the subject properties, across 95th Street, is the ten-acre Oakdale Park, an open space with recreational facilities, improved with a maintenance structure and conforming to the requirements of the “R-3” classification. Between Genoa Street, which bounds the park on the west, and the railroad tracks is a one-block-wide strip of industrial zoning, presently occupied by a gasoline service station. Except for a strip of restricted business zoning fronting on Halsted Street, three blocks to the east of Sangamon, and 103rd Street to the south, the entire area south of 95th Street, bounded by those streets and the railroad tracks to the west, is zoned “R-2” single-family residences.

Plaintiffs propose to raze the existing structures on both parcels and construct four 2-story apartment buildings with a total of 128 dwelling units distributed as follows:

Parcel #1 — Building “A” — near 95th Street: 57 Units Building “B” — in center of block: 26 Units Building “C” — toward 94th Street: 23 Units Parcel #2 — Building “D”: 22 Units

As the land is presently zoned, plaintiffs would be restricted to 22 dwelling units on the “R-3” portion of Parcel #1; to 7 separated single-family residences on the “R-2” portion; and to 12 dwelling units on the entirely “R-3” Parcel #2, for a total of 41 dwelling units, as compared with 128 which plaintiffs would build if the zoning were changed to “R-4.”

We agree with defendant that the plaintiffs have not satisfied their burden of overcoming with clear and convincing proof the presumptive validity of the Zoning Ordinance as applied to the subject properties. In sustaining single-family residence zoning against a proposed multiple-family use, the court said in Urann v. Village of Hinsdale, 30 Ill2d 170, at 174-175, 195 NE2d 643:

There is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant and one who attacks such an ordinance has the burden of overcoming the presumption with clear and convincing proof that the ordinance is arbitrary and unreasonable, and is without substantial relation to the public health, safety, morals and welfare. (Citations.) Whether a zoning classification bears a substantial relation to the public welfare depends upon a number of factors, among them being the character of the neighborhood and the suitability of the property for the zoned purpose, (citation) and it is plaintiffs’ contention that the presence of the railroad tracks and the industrial area to the north makes the classification of their property unreasonable and renders it unsuitable for single-family residential purposes.

After describing the single-family residential uses on three sides of the subject property in Urann, the court held (at page 175) that the railroad tracks and industrial uses on the other side did not fix the character of plaintiffs’ property or cause the classification to be unreasonable, and, further, that the tracks served as a logical line of demarcation between the residential and industrial zones. This court applied Urann to sustain single-family zoning against a proposed multiple-dwelling use in Maywood Proviso State Bank v. Village of Berkeley, 55 Ill App2d 84, 90-91, 204 NE2d 144:

. . . The principal differences between Urann and this case are that in Urann the area beyond the tracks was zoned for industrial use while in this case it is not, and in Urann residences were on three sides of that property while in this they are on two sides and the third side of the property faces vacant land and the tollway.

In the instant case, the coal yard across the street from Parcel #1 separates it from the railroad tracks. Except for this strip of land, which we do not find determinative of the character of either the general residential area or of the subject properties, the rest of the industrial uses to the north are within a well-defined area bounded by the railroad tracks on the west, by 94th Street on the south, and by Sangamon Street on the east, north to 92nd Street. Outside of these boundaries, the character of use is markedly single-family and low-density multiple-dwelling, and it is from these uses that the character of both the area and the subject properties is derived. Cosmopolitan Nat. Bank v. City of Chicago, 22 Ill2d 367, 373, 176 NE2d 795; American Nat. Bank & Trust Co. of Chicago v. City of Chicago, 30 Ill2d 251, 253, 195 NE2d 627.

Of further significance in determining the character of the area is the factor of newly constructed “R-2” and “R-3” housing in addition to the large number of such dwelling units already in existence. As noted, these structures abut or face the subject property and reflect a trend of development conforming to the existing uses and are thus strong evidence in support of the suitability of the existing zoning. Sulzberger v. County of Peoria, 29 Ill2d 532, 541, 194 NE2d 287. In fact, in the two-square-block area bounded by Morgan, 95th, Peoria and 94th Streets, Parcel #2 is the only undeveloped portion, and all the rest of that area has been improved with dwellings which conform to the requirements of the existing ordinance.

New construction is also particularly applicable to another consideration upon which we base our opinion:

Other persons living in the single-family residence district involved have a right to rely upon the precept that the classification will not be changed within the district unless the change is required for the public good, .... (Urann, supra, at p 176; see also Bolger v. Village of Mount Prospect, 10 Ill2d 596, 603.)

Plaintiffs’ witnesses testified that an “R-4” use would be for the public good, as it would serve as a buffer or transitional use between the industrial areas to the west and north of the subject properties and the residential zones to the northeast, east and south. One of those experts, in testifying that the highest and best use of the subject properties would be served by an “R-4” use, based his opinion on the criteria of transportation, shopping facilities and open space for recreation. He also stated that were the property closer to the “Loop,” the same criteria would justify an even higher-density “R-5” classification.

Defense experts also testified in favor of a transitional use, but opined that “R-3” was the proper classification. One such witness characterized the proposed “R-4” development as “inconsistent with the general residential uses in the area because the existing uses are overwhelmingly single-family homes.” He also stated that not only would “R-3” better serve the need for a buffer, but that “R-4” would have a detrimental effect in causing a “jump” in area density from 8 dwelling units per acre under “R-2” and 17 units per acre under “R-3” to a density of 80 units per acre under “R-4.”

The criteria utilized in the testimony of plaintiffs’ witnesses to justify an “R-4” use apply as well to the existing classifications. That the area has adequate shopping, transportation and recreational facilities to accommodate a higher-density “R-4” development, is not a convincing argument against the present lower-density classifications. The question of whether “R-4” would or would not be detrimental to the surrounding area is not determinative of whether the present “R-2,” “R-3” classifications are unreasonable or unrelated to the public welfare. The question, as noted, is, rather, whether the plaintiffs’ evidence clearly and convincingly overcomes the presumption of validity which attaches to the legislative judgment:

Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. (Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 470; see also Kioutas v. City of Chicago, 59 Ill App2d 441, 458.)

In this case, having been attacked only with differences of opinion, the legislative judgment that the present zoning classification satisfies the needs of the area (and that a higher-density use is not necessary) is thus conclusive of the question. As the Supreme Court, in sustaining the density restriction of an “R-3” zoning against a proposed “R-4” use, said in Lapkus Builders, Inc. v. City of Chicago, 30 Ill2d 304, 309-310, 196 NE2d 682:

The issue here is as to whether the density restrictions imposed by the zoning ordinance are reasonably related to the health, welfare, morals and safety of the community. The presumption is that they are. (Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434.) Unless the proof is sufficient to overcome the presumption and establish that the questioned restrictions are arbitrary or capricious as applied to plaintiff’s property, they will be upheld. (Exchange Nat. Bank of Chicago v. City of Chicago, 28 Ill2d 341.) The general principle of limitation upon intensity of use as embodied in the Chicago zoning ordinance of 1957 was upheld by this court in a case quite similar to this. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill2d 367.
It is clear that except for the commercial strip along the west side of Kedzie Avenue the general area around the subject property is low density residential in character. Single-family residences of a value of $20,000-$25,000, plus several conforming apartment buildings comprise the dwellings in the area. The fact that the property is bounded on three sides by conforming dwellings, particularly the two proximate multiple-unit apartments, plus the testimony of residents of the area, indicates that those who have already built and settled the area have acquiesced in and relied upon the ordinance. Moreover, plaintiff has failed to point to a single dwelling in the area of the subject property which does not conform to the density restrictions of the ordinance.

According to the testimony of witnesses for both sides, the value of the subject properties under existing zoning would be about $62,000-$63,000, and were the properties developed under the proposed change to “B-4,” the value would be about $125,000-$127,000. Nevertheless, as recognized by plaintiffs’ brief, their loss in potential property value if there were to be no change in zoning, is “but one factor to be considered in connection with the validity of the particular restriction.” And we do not find this factor to weigh sufficiently in favor of the plaintiffs to justify affirmance of the judgment declaring the ordinance invalid. Further, we consider it significant that plaintiffs’ proposal was developed and advanced with full knowledge of the existing restrictions.

While a purchaser is not precluded from challenging a pre-existing zoning classification, his purchase in the face of the zoning restrictions, is a factor to be considered. (American National Bank & Trust Co. v. City of Chicago, 30 Ill2d 251, 254, citing Vedovell v. City of Northlake, 22 Ill2d 611; see also Maywood Proviso State Bank v. Village of Berkeley, supra, at pp 91-92.)

Simply stated, the reason this is a factor to be considered is that under these circumstances any financial loss or disadvantage to a party incurred by reason of zoning restrictions is self-created (Cities Service Oil Co. v. County of Lake, 26 Ill2d 176, 186 NE2d 265, cited in Maywood Proviso State Bank v. Village of Berkeley, 55 Ill App2d 84, 91-92, 204 NE2d 144), and therefore “. . . it can hardly be found that the ordinance has diminished the value of plaintiff’s property or is confiscatory.” Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 402-403, 176 NE2d 771.

We make one further point. During testimony, one of the expert witnesses for the defense conceded that he would not favor the present “R-2” zoning on the northern portion of Parcel #1, as he considered the highest and best use for that property would be achieved through use of “R-3” to meet the need for a buffer zoning as discussed above. It may therefore be said (even though plaintiffs have made it clear that they do not seek an “R-3” classification), that the finding of the trial court which declared the ordinance invalid as it applies to the “R-2” portion of Parcel #1 should be affirmed since it was not contrary to the manifest weight of the evidence. Kioutas v. City of Chicago, 59 Ill App2d 441, 452, 208 NE2d 587. However, were we to affirm invalidation of the “R-2” classification while also reversing the grant of permission to construct within the limitations of “R-4,” the result would be to leave the property unzoned, and this should not be done. Although our research has not revealed any authority on this precise question, we refer to the decision of the Supreme Court in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, 377-380, 167 NE2d 406, where “[t]he evils in a decision which merely invalidates existing zoning were clearly pointed out . . . .” Dixon v. County of Kane, 77 Ill App2d 338, 342, 222 NE2d 354. Nor would we consider it proper for this court to assume the legislative function of determining the zoning classification to be applied to the subject property under such circumstances. Dixon v. County of Kane, supra, id.; Fiore v. City of Highland Park, 76 Ill App2d 62, 76, 221 NE2d 323 and cases cited therein.

The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted. (Fiore, supra, id.)

We therefore decide that the question of whether that part of the subject property sho Id or should not be zoned “R-3” instead of the present “R-2,” is not before us. Otherwise, for the reasons stated above, we hold that the plaintiffs have not satisfied their burden of overcoming with clear and convincing proof the presumptive validity of the present zoning classifications applicable to both Parcels #1 and #2, and the judgment of the trial court, being contrary to the manifest weight of the evidence, is reversed. Kioutas v. City of Chicago, 59 Ill App2d 441, 452,458,208 NE2d 587.

Reversed.

DRUCKER and McCORMICK, JJ., concur.