text:
    Elgin Lumber and Supply Co., Inc., Counter DefendantAppellee, v. O. Edwin Malenius, Counter Plaintiff-Appellant.
    Gen. No. 67-83.
    Second District.
    December 12, 1967.

      Steinbrecher and Narusis, of Crystal Lake, for appellant.
    Puklin and Puklin, of Elgin, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court of the 16th Judicial Circuit entered on the counterclaim against the counterplaintiff and for the counter-defendant.

On September 24, 1965, Elgin Lumber and Supply Co., Inc., counterdefendant-appellee, herein called the Lumber Co., sued the defendants, 0. Edwin Malenius, counter-plaintiff-appellant, herein called Malenius, and Eddy Construction Co., Inc., herein called the Construction Co., to recover for materials and services furnished to the defendants in the sum of $1,307.13. Malenius filed answer and counterclaim in this proceeding. In the answer, he denied that he owed the Lumber Co. any sum whatsoever, and in his counterclaim he asserted an action for malicious prosecution against the Lumber Co.

The counterclaim alleged that Malenius was a law-abiding citizen who had neither been suspected, nor had been guilty of any crime; that the Lumber Co., through one of its agents, maliciously, falsely and without probable cause, on or about November 5, 1964, signed a complaint charging Malenius with having committed the crime of deceptive practices in violation of section 17-1 of chapter 38 of the Criminal Code (Ill Rev Stats 1965, c 38, par 17-1), and specifically with having, with intent to pay for property or services of another, issued or delivered a check upon the State Bank of Woodstock, knowing it would not be paid by the depositary; and that the Lumber Co., after said criminal proceedings were instituted, pursued a course of conduct which “it consented to or ratified said criminal prosecution.”

The counterclaim further asserted that the Lumber Co., by and through its officers and agents, then and there falsely, maliciously and without probable cause, procured the issuance of a warrant for the arrest of Malenius; that he was arrested, was compelled to enter into a recognizance, and to answer the charge; that on September 7, 1965, the State’s Attorney of Kane County moved for, and the Circuit Court entered a nolle prosequi as to this complaint ; that Malenius was then and there discharged and acquitted of the supposed offense; and that as the result of the Lumber Co.’s malicious prosecution, Malenius was damaged in reputation, caused mental pain and anxiety, prevented from attending his usual business affairs and has expended large sums in defending himself.

The Lumber Co. answered and admitted that Malenius had been a law-abiding citizen, and denied the remaining allegations of the counterclaim. Subsequently, it filed an amendment to its answer wherein it denied that it authorized Harold Seigle, its agent, to institute criminal proceedings against Malenius, denied that Seigle signed the complaint against Malenius, and asserted that the proceeding was instituted by a party or parties unknown to it.

Malenius filed interrogatories which were answered by the Lumber Co., which stated that Seigle became president of the Lumber Co. in 1942; that he was not authorized by the Lumber Co. to swear out a criminal complaint against Malenius for deceptive practices; and that he did not do so. Seigle’s unlisted telephone number was typed on the face of the complaint and it bore his purported signature.

The evidence established that Malenius was president of the Construction Co.; that Bert Hurst was credit manager of the Lumber Co., and was immediately responsible to Seigle; that in response to notice from the Circuit Clerk, directed to Harold Seigle, Bert Hurst appeared on various dates when the criminal case was set for trial; that checks drawn by the Construction Co., signed by Malenius as its president, on the State Bank of Woodstock, payable to the Lumber Co., in the total sum of $1,307.13, were charged against the account of the Lumber Co. as unpaid because the account of the Construction Co. had been closed; and that prior to trial- on the counterclaim, a judgment was entered on the complaint of the Lumber Co., in its favor, and against the Construction Co., in an amount less than claimed in the complaint, and the complaint was dismissed against Malenius.

Malenius testified that the following conversation took place between Seigle and himself at the offices of the Lumber Co., prior to the issuance of the warrant against him:

“So he said, Well, I am going to have you thrown in jail for deceptive practice and having given us bad checks.’ I said ‘Mr. Seigle, I did not give you bad checks with intent of deceptive practice. It was an agreement between Mr. Mewes and myself at Elgin Lumber.’ And at that time he said: ‘We have to have some security,’ and I said ‘Fine, what do you want?’ and he said ‘We want a note signed for the balance of the account,’ which I said that I would agree to this for Eddy Construction Company. So Mr. Mewes went out and brought in a note that was typed up, and I sat and waited and he came back with a note for the balance which they showed on their account after what we owed them. The amount was somewhere in the neighborhood of Fourteen Hundred Dollars ($1,400.00) at that time. . . .
“Mr. Seigle presented me with the note and I signed the note as O. Edwin Malenius, President, and laid it on his desk. . . .
“He said: T want this signed personally by you,’ and I said I can’t sign that, that’s not my obligation, it’s the corporation’s obligation. And I said I will see that you get paid, and I said I won’t sign that unless I sign for Eddy Construction Company, and I said I will discuss this with my Attorney. . . .
“He said ‘You pay this account immediately, or I am going to have you thrown in jail. . . ”

Seigle testified he met Malenius only once at the office of the Lumber Co., two or three years prior to the time of the alleged conversation; and that he then only asked Malenius why he didn’t pay the Lumber Co., on the account of the Construction Co., which was then past due.

After the trial before the court, wherein 8 witnesses testified for Malenius and 2 for the Lumber Co., and wherein 13 exhibits were received in evidence for Malenius and 4 for the Lumber Co., and wherein the evidence was conflicting, the court entered judgment on the counterclaim in favor of the Lumber Co., and against Malenius, and he appealed from this judgment.

On review, Malenius contends that a corporation may be held liable for a malicious prosecution instituted with its authority or if ratified by it; that the trial court’s judgment in favor of the Lumber Co. was contrary to the manifest weight of the evidence; and that judicial proceedings showing no irregularity on their face are presumed to have been in all other respects regular.

The Lumber Co. argues that it did not institute the deceptive practice action; that it may not be held liable for the malicious prosecution instituted either with or without its authority since Malenius failed to meet the burden of proof on malice and probable cause; that the findings and judgment of the trial court are not against the manifest weight of the evidence and should be affirmed; and that the presumption of regularity of the complaint against Malenius for deceptive practices was rebutted by Seigle’s denial that he signed the complaint and his statement that he had no explanation for the appearance of his purported signature thereon.

In Shelton v. Barry, 328 Ill App 497, 66 NE2d 697 (1946), at page 507, the court stated:

“In general, to authorize the maintenance of an action for malicious prosecution, the following elements must be shown: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of injury or damage as a result of the action or prosecution complained of. An action for malicious prosecution is not favored in the law. Shedd v. Patterson, 302 Ill 355, 359.”

All of the elements above listed must exist in order to sustain a malicious prosecution act.

In the case at bar, the Lumber Co. denied that it instituted the deceptive practice criminal proceeding against Malenius, and further denied that he proved malice or want of probable cause on its part in connection with the institution of such proceeding. The trial court properly entered judgment for the Lumber Co., if Malenius failed to prove by the preponderance of the evidence either that the Lumber Co. instituted the criminal proceeding, or that it subsequently ratified the tortious act of its officer or agent, or if he failed to prove the malicious motives of the Lumber Co., or the lack of probable cause for its action. Carbaugh v. Peat, 40 Ill App2d 37, 47, 48, 189 NE2d 14 (1963).

In other words, the burden was on Malenius to prove that the criminal proceeding against him was instituted by the Lumber Co. or subsequently ratified by it; and that it was a prosecution upon a demand or accusation by the Lumber Co. which had no foundation in fact. March v. Cacioppo, 37 Ill App2d 235, 244, 185 NE2d 397 (1962). In order to support the cause of action for malicious prosecution there must be both malice and want of probable cause on the part of the Lumber Co., and they must concur. Glenn v. Lawrence, 280 Ill 581, 587, 117 NE 757 (1917); McElroy v. Catholic Press Co., 254 Ill 290, 293, 98 NE 527 (1912); Hanson v. Rhodes-Burford Furniture Co., 227 Ill App 471, 472 (1923). While malice may be inferred from want of probable cause, any presumption of malice arising thereby may be overcome by evidence to the contrary. McElroy v. Catholic Press Co., supra, 294.

Seigle denied that he signed the deceptive practice complaint and denied that he had the conversation with Malenius wherein he allegedly threatened to throw him “in jail for deceptive practice.” The evidence offered on the issue of the Lumber Co.’s ratification of the tortious act of its officer, or agent, was weak and lacked the power of persuasion. In this posture of the case, the trial judge was called upon to determine the factual issues involved in the proceeding. Carbaugh v. Peat, supra, 37.

In commenting upon the opportunity of the trial court or the jury, as the trier of the factual issues, to weigh the evidence, we stated in Tihay v. Aurora City Lines, 79 Ill App2d 107, 223 NE2d 171 (1967), at page 114, as follows:

“The trial judge, like the jury, was in a much better position than this court to weigh the evidence. They both had the benefit of seeing and hearing the witnesses. They saw the calm or disturbed state of the witness and noted the flush or pallor of the face in connection with the answer to certain questions. They heard the delayed and uncertain answer, as well as detected the faltering voice and its inflection, and noted the nuance and denouement attributable thereto, along with the numerous other characteristics of the witnesses which do not appear in the printed record before us.”

In the case at bar there was a conflict in the evidence with reference to who commenced the criminal prosecution of Malenius, and on the issues of malice and want of probable cause. After considering the exhibits offered in evidence, and the testimony of each of the witnesses in the light of the totality of all the attendant circumstances, the trial judge determined the credibility of their testimony and made a determination of the pertinent factual issues.

Upon appeal, we are required to review cases not only as to the law, but also as to the facts, Noyes v. Hines, 220 Ill App 409, 422 (1920); Ill Rev Stats 1965, c 110, par 92(3) (b), and it is our duty to review the evidence and to reverse the verdicts of juries or judgments of trial courts whenever we find such verdicts or judgments clearly against the manifest weight of the evidence. Revcor, Inc. v. Fame, Inc., 85 Ill App2d 350, 356, 228 NE2d 742 (1967); Kropp Forge Co. v. Jawitz, 37 Ill App2d 475, 483, 186 NE2d 76 (1962). Manifest means: clearly evident, clear, plain or undisputable. Dix v. Buell, 54 Ill App 2d 80, 82, 83, 203 NE2d 290 (1964); Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 147, 72 NE2d 705 (1947). After giving full consideration to all of the conflicting evidence on the issues in the case at bar, we cannot hold that the findings of the trial court were against the manifest weight of the evidence. Accordingly, the judgment of the trial court should be affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    New-Mark Builders, Inc., a Corporation, Plaintiff-Appellant, v. City of Aurora, a Municipal Corporation, Albert D. McCoy, Mayor of the City of Aurora, James A. Ahlgren, Commissioner of Streets and Public Improvements, John A. Cunningham, Commissioner of Sewers, Water and Lights, Charles E. Kobelenz, Commissioner of Accounts and Finance, and Herbert A. Wyeth, Commissioner of Public Health, Safety, Parks and Airport, Defendants-Appellees.
    Gen. No. 67-40.
    Second District.
    December 12, 1967.
    Rehearing denied February 1, 1968.

      O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellant.
    David P. Peskind, and William J. Foote, of Aurora, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, New-Mark Builders, Inc., filed a petition seeking a writ of mandamus to compel the defendant, the City of Aurora, to approve its request for the annexation of certain contiguous land. The defendant filed a motion to dismiss, alleging that the action of the City on plaintiff’s request for annexation was legislative in nature, and that its discretion in a legislative matter was not subject to judicial review. The trial court dismissed the plaintiff’s petition and the plaintiff appealed.

The petition for mandamus alleged that the plaintiff was the owner of Unit No. 2 of Heritage Subdivision— the land which it seeks to have annexed and which the City refused to annex; that it was the owner of a larger parcel of land which it divided into three subdivisions: Heritage Green, Unit No. 1 of Heritage Subdivision and Unit No. 2 thereof; and that the three subdivisions were laid out, subdivided and were to be developed as one overall project. The petition further stated that the preliminary plans for the three subdivisions were submitted to and disapproved by the Aurora Planning Commission in December of 1968; that the reason stated for the disapproval was that these plans did not provide open space for Indian Trail Road, which was to pass through the land comprising the proposed subdivisions; that thereafter the plaintiff revised its plans to provide open space for the proposed highway through the said subdivisions; and that the final plans for Heritage Green and Units Nos. 1 and 2 of Heritage Subdivisions were approved by the Aurora Planning Commission and then by the Aurora City Council.

The plaintiff’s petition further asserted that Heritage Green and Unit No. 1 of Heritage Subdivision were thereafter annexed to the City of Aurora, but with no requirement that the plaintiff dedicate or construct the portion of Indian Trail Road passing through these subdivisions; that subsequently, the plaintiff filed its petition to annex Unit No. 2 of Heritage Subdivision which contained the same reservation in its plat of open space for the use of the proposed Indian Trail Road as did the plats of the two prior subdivisions; and that the City denied this petition, apparently on the grounds that the plaintiff must first dedicate and construct that portion of Indian Trail Road passing through this subdivision.

The plaintiff further alleged that Heritage Green and Unit No. 1 of Heritage Subdivision were developed and annexed to the City after all three of the subdivisions were approved by both the Planning Commission and the City Council; that the City at no time indicated prior to its annexation of Heritage Green and Unit No. 1 that it would impose as a condition precedent to the annexation of Unit No. 2 that there be a dedication and construction of Indian Trail Road passing through it; and that the City should be estopped to impose such a condition now.

The sole issue before us is whether the petition stated a cause of action and thus defeated the City’s motion to dismiss. The City contends that plaintiff’s petition for annexation, filed under Ill Rev Stats, 1965, c 24, § 7-1-8, invoked its legislative power and authority; and that it had the absolute right to either accept or refuse the annexation. The City’s position in this regard is well taken. The determination of whether a municipality should expand its boundaries is purely a legislative function which rests within the discretion of the legislative branch of the government. North v. Board of Education, 313 Ill 422, 425, 145 NE 158 (1924); City of Galesburg v. Hawkinson, 75 Ill 152, 156-158 incl. (1874); La Salle Nat. Bank v. Village of Burr Ridge, 81 Ill App2d 209, 219, 225 NE2d 33 (1967).

The plaintiff contends that inasmuch as it had complied with all of the statutory and ordinance requirements for annexation, the City’s determination as to whether it should annex pursuant to plaintiff’s petition was purely a ministerial act and not a legislative act involving its discretion. In this respect the plaintiff cites People v. City of Park Ridge, 25 Ill App2d 424, 166 NE2d 635 (1960). That case, however, deals with the question of the approval of the resubdivision of certain property. The court there held that the approval by the City Council was a ministerial act when the appropriate statutes and ordinances have been complied with. Such is not the case with reference to the question of annexation, and the municipal authorities retain the discretionary right to either accept or reject the petition filed with it. Ill Rev Stats 1965, c 24, § 7-1-8.

The plaintiff argues, however, that the City is estopped by its prior conduct to deny the annexation of Unit No. 2 of Heritage Subdivision. Under recognized law, the doctrine of estoppel may, in a proper case, be applied against a municipal corporation, even when it is acting in a governmental capacity. Hickey v. Illinois Cent. R. Co., 35 Ill2d 427, 448, 183 NE2d 175 (1966); City of Quincy v. Sturhahn, 18 Ill2d 604, 614, 165 NE2d 271 (1960). Whether the doctrine of estoppel may be applied against a municipal corporation depends upon a consideration of all the circumstances of the case. Before the doctrine can be invoked, there must be some positive acts by the municipal officers which induced the action of the adverse party. Mere nonaction is not enough. Also, the doctrine may be invoked only to prevent injustice and fraud. If under all of the circumstances, the affirmative acts of the public body have caused another to take certain actions which have created a situation where it would be inequitable and unjust to permit the public body to, in effect, retract what it previously had done, the doctrine of estoppel may be applied against it. Gregory v. City of Wheaton, 23 Ill2d 402, 407, 408, 178 NE2d 358 (1961); City of Quincy v. Sturhahn, supra; People v. Wieboldt, 233 Ill 572, 580, 84 NE 646 (1908); Stahelin v. Board of Education, 87 Ill App2d 28, 230 NE2d 465 (1967); 28 Am Jur2d, Estoppel and Waiver, §§ 122 and 123, pp 782-787 incl.

It appears from the petition before us that the plaintiff developed the three subdivisions under one comprehensive plan. When the first three plans were disapproved because of the failure to provide space for the proposed Indian Trail Road, they were revised to eliminate this defect; and thereupon the revised plans were approved by the City Council — Heritage Green and Unit No. 1 of Heritage Subdivision in February of 1964, and Unit No. 2 in April of 1965. Heritage Green and Unit No. 1 were then developed by plaintiff and annexed to the City of Aurora. Nothing was required with reference to Heritage Green and Unit No. 1 of Heritage Subdivision other than that open space be reserved for Indian Trail Road. The plaintiff then proceeded to develop Unit No. 2 in the same manner as the earlier units. The plaintiff contends that, in developing Unit No. 2, it relied upon the acceptance of Heritage Green and Unit No. 1 by the City on the basis of a reservation of open space for Indian Trail Road; and that upon the annexation of the prior units nothing further was required. It asserts that to refuse annexation at this time would be totally unjust in that it has expended large sums of money in the development of the total subdivision in reliance upon defendant’s acts; and that to redesign the plat and redevelop the construction plans to meet the approval of the County in contrast to the City would cost substantial additional expenditures.

A mandamus proceeding is an action at law and is governed by the rules which apply to other actions at law. People ex rel. Pignatelli v. Ward, 404 Ill 240, 243, 88 NE2d 461 (1949); People v. Palmer, 356 Ill 563, 569, 191 NE 199 (1934). Thus, the City’s motion to dismiss the plaintiff’s petition admitted all facts well pleaded. Acorn Auto Driving School v. Board of Education, 27 Ill2d 93, 96, 187 NE2d 722 (1963); Reel v. City of Freeport, 61 Ill App2d 448, 451, 209 NE2d 675 (1965).

We believe that under the allegations of the petition, the plaintiff stated a cause of action, based upon the possibility of the application of the doctrine of estoppel against the City. It is apparent that the three subdivisions were designed and promoted as one overall development, the nature of which was materially affected by the actions of the City in providing what was, and what was not, required for the acceptance of the respective plats. The prior annexations of these accepted plats of Heritage Green and Unit No. 1 of Heritage Subdivision might well induce the plaintiff to assume that Unit No. 2 would be accepted for annexation under the same terms and conditions as the prior subdivisions. Municipal corporations, as well as private corporations and individuals, are bound by the principles of fair dealing. Stahelin v. Board of Education, supra; McGovern v. City of Chicago, 281 Ill 264, 283, 284, 118 NE 3 (1917).

Where necessary to prevent an injustice, the doctrine of estoppel may be applied against a municipal corporation. We believe that the petition for mandamus sets forth sufficient allegations to raise the possibility of the application of this doctrine. We are not suggesting that the doctrine either should, or should not, be applied against the defendant City in this case. That can only be determined from such facts as may be shown by the evidence to exist in the case. We do believe, however, that the petition states a cause of action. Therefore, the case should be reversed and remanded for further proceedings upon the petition, or such amendments as may be made thereto, and upon such answer and reply as may be filed in said proceeding.

Reversed and remanded.

MORAN and ABRAHAMSON, JJ., concur.


author: MORAN, P. J.

text:
    Lorraine C. Anderson, Plaintiff-Appellant, v. Universal Delta and Illinois State Toll Highway Commission, Defendants, Universal Delta, Certain Defendant-Appellee.
    Gen. No. 50,196.
    First District.
    December 13, 1967.
    Rehearing denied January 15, 1968.

      John G. Phillips, of Chicago (Jones & Clark, Vincent M. Clark, of counsel), for appellant.
    Doyle, Berdelle & Tarpey, and Jerome H. Torshen, of Chicago (Leo J. Doyle, Jr., and Jerome H. Torshen, of counsel), for appellee.
   MORAN, P. J.

Plaintiff appeals from a judgment of the Circuit Court of Cook County, Illinois, in favor of the defendant in an action for personal injuries.

The plaintiff was driving in a westerly direction on Willow Road near the Toll Road in Cook County, Illinois, on March 5, 1959. It had been snowing for some time and there was snow or slush on the highway. As she reached the west end of the Willow Road overpass of the toll road, her automobile swerved to the left, turned around facing back in an easterly direction, traveled a distance of fifty feet, and went off the road, rolling over and down an embankment. She was thrown from the automobile and when help arrived, she was lying in a ditch with the automobile on top of her. She suffered a severe injury to her right leg.

Guardrails had been erected on the south side of the overpass, while on the north side only I-beams had been installed to which about half of the guardrails had been attached. The plaintiff testified that prior to the swerving of her automobile, she felt the right front wheel hit something and that after traveling about fifty feet and turning around, she saw opposite to her left front wheel a guardrail extending into the road about one or two feet. She testified that she did not know what the wheel hit, but that she assumed it was the guardrail.

The testimony concerning the presence of loose guardrails on the shoulder of or on the road itself is conflicting. Mr. Siars, who was driving in an easterly direction on Willow Road and who observed the plaintiff’s automobile leave the road, testified that he had crossed the road to help the plaintiff and that he did not remember seeing anything on the road or on the shoulder, other than snow. Mrs. Siars testified that she walked over to the northern edge of the road and did not see any guardrails on the ground.

Mr. Juern, a member of the ambulance crew which came for the plaintiff, testified that he did not remember whether there were any loose guardrails on either shoulder. Mr. Simpkins, the other member of the ambulance crew, testified that he did not see any guardrails on the shoulder of the road.

Sergeant Milton Chasen, a policeman who came to the scene, testified that there were loose guardrails lying on the north side of the highway; that in covering the accident he parked his car in the middle of the road and had to step over guardrails to get to the shoulder of the road. Officer Hoard, another policeman, testified that he observed guardrails on the shoulder of the road west of the scene of the occurrence.

Mr. Keating, who observed the plaintiff’s automobile leave the road, testified that there were guardrails lying on the shoulder, that they were thrown all over; that some may have been only two inches from the road, and that one would have to walk over them on the shoulder of the road. Finally, the plaintiff’s husband testified that on a visit to the scene of the occurrence with Mr. Moehling, a neighbor and friend, on the day of the occurrence, he and Mr. Moehling saw guardrails lying around.

The plaintiff alleged that Universal Delta, who was engaged in erecting and installing posts and guardrails pursuant to an agreement entered into with the Illinois State Toll Highway Commission, negligently permitted guardrails to remain upon the traveled portion of the public highway, failed to inspect, failed to warn motorists, failed to fasten the guardrails, and failed to construct the highway properly, and that as a result of one or more of the acts charged the plaintiff suffered serious injuries.

The jury returned a verdict in favor of the defendant. The trial court denied the plaintiff’s motion for a new trial and entered judgment for the defendant, from which the plaintiff prosecutes this appeal.

The plaintiff argues that the case was a close case and that the verdict of the jury resulted from prejudice engendered by the improper conduct of the defense counsel in that (1) he commented in closing argument upon the failure of plaintiff to call Mr. or Mrs. Moehling to testify, when he himself had called Mrs. Moehling to testify as a witness for the defense; (2) he argued and referred in his closing argument to facts not in evidence and to evidence which had been stricken by the court; (3) he commented on the exclusion of a certain witness; (4) he cross-examined certain witnesses by use of an inadmissible police report; and (5) he failed to offer evidence to prove assertions in his opening statement.

The plaintiff’s husband testified that he and Mr. Moehling had gone to the scene of the occurrence on the day after the occurrence and that they had both seen guardrails on the shoulder. The defendant called Mrs. Moehling as a defense witness, and she testified that she and her son had accompanied plaintiff’s husband and Mr. Moehling. She was not questioned about the presence of guardrails.

In his closing argument defense counsel argued that “you are entitled to believe, ladies and gentlemen, and you are entitled to understand that because counsel (for the plaintiff) did not produce these people they would not substantiate— . . . that Mr. and Mrs. Moehling would testify that there were no guardrails on the shoulder.” The plaintiff objected, but the court merely instructed counsel to proceed.

In Brichacek v. Hampton, 54 Ill App2d 284, 203 NE2d 737 (1964), at 297, the court held that:

“Where a witness is known to the plaintiff and has been interviewed by him, is subsequently subpoenaed and has testified on behalf of the defendant in the trial, it is the height of absurdity to say that counsel for the defendant would be entitled to comment on the failure of the plaintiff to produce the witness. . . . When the witness testified in open court there is no place for (an inference) . . . that the testimony of the witness would be against the plaintiff.”

See also Mitchell v. Four States Mach. Co., 74 Ill App2d 59, 220 NE2d 109 (1966).

There are a number of allegations of error in commenting upon facts not in evidence or upon evidence which has been stricken by the court. First, the defendant called Dr. Smith to testify. After interpreting some X rays, he testified over objection concerning the treatment afforded the plaintiff, even though he had never examined her. At the conclusion of his testimony, the court ordered all of his testimony, except that dealing with his interpretation of the X rays, to be stricken. Then, in his'closing argument, the defendant referred to the stricken testimony, emphasizing that:

“And first of all, I should like to mention that at least if Doctor Smith did nothing else he furnished another opinion to you ladies and gentlemen. He furnished another opinion to Mr. Phillips. He furnished another opinion to Mr. and Mrs. Anderson, which certainly makes the future of this very unfortunate incident much brighter than Mr. Phillips and his doctors would have you believe. . . .
“But I do not think that a person who has been experienced in medicine as Doctor Smith and who knows these conditions and who has had these operations before whereas Doctor Hall did not testify that he had performed any such operation before, I think it is worthy of consideration of Mr. and Mrs. Anderson and also Mr. Phillips. This is the only reason for producing Doctor Smith.”

No objection was made to this argument, and since we do not consider these remarks so highly prejudicial as to require intervention by the trial court in the absence of objection, we do not consider this alleged error.

Second, it appears that on January 12, 1962, defendant served answers to interrogatories on plaintiff, listing the names of twelve employees who worked on the toll road during the week of the occurrence. On April 16, 1962, plaintiff served on defendant additional names, including Mrs. Moehling, Mr. Keating, Mr. Juern, Mr. Simpkins, Mr. Siars, and Mr. Sherry. On April 24, 1962, defendant filed supplemental answers, including the names of Mr. Juern, Mr. Simpkins, Mr. Hoard and Mr. and Mrs. Siars.

In his argument to the jury, the defendant stated: “Ladies and gentlemen, I submit to you that we have established by the only evidence that we have which is the evidence which we furnished really to the plaintiff and who used it — .” The trial court then sustained the plaintiff’s objection, noting thereafter that “it isn’t too material at this point as to who gave what first. Let’s get on with the arguments.”

Third, the trial court sustained the plaintiff’s objection to the following comments by the defendant during his closing argument:

“How are we going to reconcile the fact that Mrs. Anderson is going to have a collision with this guardrail which is there unexplainably when other cars have been down that road that day. They didn’t have a collision with it. They didn’t have an accident.”

Finally, the trial court sustained the plaintiff’s objection to the following comments by the defendant with regard to a photograph taken ten days after the occurrence: “Well, now, here is one of the pictures taken. Plaintiff’s Exhibit 5. And look at the stone that is on the shoulder of that road.”

It is well established in Illinois that it is improper in closing argument to make reference to matters not in evidence or to comment upon evidence which has been excluded or stricken. In Mattice v. Klawans, 312 Ill 299, 143 NE 866 (1924), the court emphasized, at 309, that “it is error sufficient to reverse a judgment to permit counsel to state, against objection, matter not in evidence and pertinent to the issue or to assume arguendo facts to be proven when they are not. Appel v. Chicago City Ry. Co., 259 Ill 561 (1913); Vujovich v. Chicago Transit Authority, 6 Ill App2d 115.”

During the trial, a defense witness, Mr. Claros, was found incompetent to testify. In his closing argument, the defense counsel commented on the court’s exclusion of this witness, when he noted that plaintiff’s attorney “said no one was here from Universal Delta. The person that was here was Mr. Claros who counsel objected to testifying.” The plaintiff objected; defendant’s counsel added, “This is the fact,” and the trial court sustained the objection.

It has been reiterated many times that “it is utterly improper for counsel in arguing to the jury to refer to the ruling of the trial court rejecting evidence, and this is true where the ruling of the trial court was or was not in error.” Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449 at 424-425. Crutchfield v. Meyer, 414 Ill 210, 111 NE2d 142; Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 176 NE2d 551.

During the direct examination of Sergeant Chasen by the plaintiff, the witness did not remember exactly when he had received a call to investigate. He then said, “The time is on the accident report. If you have it there I could — it’s around about ten-fifty; approximately ten-fifty,” at which the defense counsel interjected, “Here is a photostat. It’s ten-thirty.” The plaintiff made an objection and the court requested counsel to proceed.

During cross-examination, Sergeant Chasen testified that he had asked the plaintiff many questions at the hospital and that she had given quite a few incoherent answers. Then, over objection, the witness testified that he had not made a statement in the report that she was incoherent.

Finally, during his cross-examination of Officer Hoard, defense counsel asked the court to request the witness to return on Monday morning for further cross-examination based upon a previously written statement. The defense counsel indicated that the witness had been subpoenaed by the defendant to appear on Monday. Over the objection of plaintiff, the court reopened plaintiff’s case and allowed the further cross-examination. However, instead of making reference to the previous statement, defense counsel began by questioning Officer Hoard about the police report.

In Hinnerichs v. Galbraith, 40 Ill App2d 433, 189 NE2d 760, the court emphasized that detailed cross-examination from a police report is improper where it brings before the jury the contents of the report, which could not itself be admitted. The court cited Stone v. Warehouse & Terminal Cartage Co., 6 Ill App2d 229, 127 NE2d 260, wherein the court recognized that it was proper to show that a report was contradictory to a witness’s testimony, but improper to bring the contents of a report before the jury since the document itself could not be admitted.

In the present case, the effect of defendant’s use of the police report was the presentation of matter contained in the report to the jury. There was no attempt to use the report for impeachment.

In his opening statement, the defendant indicated that the evidence would show that “there were no loose guardrails lying on the north side of the road, either on the road or the shoulder of the road” and that there were loose guardrails on the south side of the road. The plaintiff argues that the defendant failed to produce any evidence to support the assertions in his opening statement.

However, the witnesses at the scene of the occurrence testified and the testimony creates a question of fact as to whether there were guardrails on the south side of the road. The defendant’s statements were not improper under these circumstances.

We agree with the plaintiff’s contention that this case is a close case. There is evidence in the record to support both a verdict for the plaintiff and a verdict for the defendant. The evidence concerning the presence of guardrails on the road or on the shoulder conflicts. Sergeant Chasen saw guardrails on the road and on the shoulder. Officer Hoard saw guardrails on the shoulder, but not on the road. Mr. Siars could not remember seeing guardrails on the road or the shoulder. And Mrs. Siars did not see any guardrails.

In Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476 (1963), at 100, the court emphasized that:

“It can thus be seen that the evidence was in sharp conflict as to the facts bearing on the central issue of negligence. In consequence, the jury might have determined this issue either way, and, in further consequence, it is important that the jury not be influenced by any improper conduct by counsel so prejudicial as to deprive either party of a fair trial.”

This statement finds support in Mattice v. Klawans, supra, and in Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 209 NE2d 868 (1965). In Appel v. Chicago City Ry. Co., 259 Ill 561,102 NE 1021 (1913), at 568, our Supreme Court emphasized that “the questions to be determined are, therefore, whether the improper argument was of such a character as was likely to prejudice the defendant, and if so, was the verdict so clearly right that a new trial ought not to be granted because of such prejudicial argument.”

We have already decided that this was a close case. We also agree with the court in Bulleri v. Chicago Transit Authority, supra, when it said that “the cumulative effect of these arguments in combination was grossly prejudicial and, in our opinion, requires a new trial.”

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

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Charles Sinclair, Plaintiff-Appellant, v. Joseph Thomas, Defendant-Appellee.
    Gen. No. 50,309.
    First District, Third Division.
    December 14, 1967.

      John C. Mullen, of Chicago (James P. Chapman, of counsel), for appellant.
    Ross, Kralovec, Sweeney & Marquard, of Chicago (George E. Sweeney and Edward V. Scoby, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff sues to recover for personal injuries sustained while riding in a car driven by the defendant. At the close of all the evidence the court directed a verdict in favor of the defendant and entered judgment thereon. Plaintiff’s motion for a new trial was denied. On appeal, the sufficiency of the motion is questioned, defendant contending that it is too vague and general to meet the requirements of section 68.1(2) of the Civil Practice Act, Ill Rev Stats, c 110, § 68.1(2) (1965). The Supreme Court has resolved this question by its recent holding that where a verdict is directed, the party adversely affected need not file a post-trial motion to preserve for review any errors which may have occurred. Keen v. Davis, 38 Ill2d 280, 230 NE2d 859 (1967). Therefore, notwithstanding the general language of plaintiff’s post-trial motion, the points raised in the brief were properly preserved for review.

The principal point made by the plaintiff is that the evidence was sufficient to require the submission of the case to the jury on the issue of liability. He further argues that he was not a guest in defendant’s automobile and accordingly was not required to prove the defendant guilty of wilful and wanton misconduct.

Plaintiff and the defendant Joseph Thomas had been business partners and co-owners of a tavern called “Charlie’s and Joe’s Club.” In November 1956 the plaintiff Charles Sinclair became the sole owner of the business and changed its name to “See Sinclair’s For Fun Club.” Defendant remained liable however as co-lessee on the tavern lease and as co-obligor on a chattel mortgage. About 12:30 a. m. on September 14, 1957, the date of the occurrence, defendant visited the tavern to discuss his release on those obligations. Plaintiff agreed that the matter should be discussed, but asked the defendant to wait until he closed the tavern at 2:00 a. m., at which time they could discuss it over dinner. At about 2:15 a. m., the parties entered defendant’s car and set out for an all-night restaurant some seven or eight blocks from the tavern.

It appears from the undisputed testimony that defendant drove in a normal manner; that he was not intoxicated; that the car lights were on and the streets were dry. They proceeded east on 63rd Street toward the intersection of Lowe Avenue, in Chicago. At that point 63rd Street has two lanes of traffic in each direction and the intersection is spanned by an elevated viaduct supported by pillars. Another car was proceeding in the same direction next to the defendant’s vehicle. At that time the defendant’s vehicle struck one of the viaduct pillars. Plaintiff described the accident in the following manner:

“As we approached 63rd and Lowe, we were driving along in a normal fashion. As we approached the bridge, I said, ‘watch out,’ — put my hands up over my face, and that’s all. He hit something hard, and I blacked out.”

The defendant did not testify. He did however introduce in evidence a statement obtained by an insurance adjuster. It was signed by the plaintiff and his wife and contained the following account of the occurrence:

“Suddenly, some guy on my side of the car was crowding us over to pass us to the right. It seemed to me Joe Thomas moved to his side to give some room to pass. About that time we hit an elevated pillar, and the car that caused all this, who crowded us over, just kept on going and never stopped.”

Plaintiff acknowledged his signature on the statement, but when questioned concerning it, he testified:

“This document does not refresh my recollection that I ever told anyone that a car was traveling along on my right suddenly crowded Mr. Thomas’ car over and caused him to run into the elevated pillar. I never said that.”

Later, on cross-examination he said, “No car was crowding us over into that pillar that night.”

The insurance adjuster Robert Mielchen testified for the defense that he had interviewed Sinclair about eight days after the accident; that he took Sinclair’s statement down in longhand and that as Sinclair had broken his glasses, he asked Mrs. Sinclair to read the statement aloud to her husband and have him affirm the contents, which was done. The statement was then admitted into evidence without objection. This was the only evidence presented by the defense. Mielchen’s testimony was contradicted by Mrs. Sinclair who testified that she signed the statement but did not read it. She explained that her husband was sick in bed and that she wanted to get the adjuster out of the house.

The rule with respect to the direction of verdicts has recently been modified by the Supreme Court of Illinois and now the sole question is whether all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence can be sustained. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504. Before testing the sufficiency of the evidence, we must determine whether the plaintiff was required to prove wilful and wanton misconduct or simply negligence. The first question therefore is whether plaintiff was a guest in defendant’s automobile within the meaning of the Guest Statute, Ill Rev Stats, c 95½, § 9-201 (1965), which provides in pertinent part:

“No person riding in or upon a motor vehicle . . . as a guest without payment for such ride . . . shall have a cause of action for damages against the driver or operator of such motor vehicle . . . for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle. . . .”

Plaintiff contends that he was not a guest in defendant’s car because the purpose of the trip to the restaurant was to discuss business which would benefit the defendant; that is, the termination of defendant’s responsibility for the obligations of the preexisting partnership.

Although the statute refers to a “guest without payment,” courts have held that a passenger may recover for simple negligence even though he has made no monetary payment for the transportation. In construing the statute the courts have looked to the purpose of the trip itself to determine the relationship between the parties and have made a distinction between rides which have business aspects and those which have social implications. If the transportation confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if it is primarily for some objective or purpose of the operator, the passenger is not a guest within the meaning of the statute. Connett v. Winget, 374 Ill 531, 30 NE2d 1; Dirksmeyer v. Barnes, 2 Ill App2d 496, 119 NE2d 813; Gass v. Carducci, 37 Ill App 2d 181, 185 NE2d 285; Perrine v. Charles T. Bisch & Son, 346 Ill App 321, 105 NE2d 534. In the instant case the parties intended to discuss business affairs; that is, the winding up of a partnership in which both were interested. The fact that one may have had a greater interest than the other is of no consequence. Plaintiff was not the recipient of a social amenity and was not a guest within the meaning of the statute. Therefore he is not required to prove more than ordinary negligence.

When it appears from the evidence, as in the instant case, that the driver of an automobile struck an object such as a viaduct pillar which under ordinary circumstances could be readily avoided, it is incumbent upon him to show that the accident was not the result of negligence on his part. Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660; Tomlinson v. Chapman, 24 Ill App2d 192, 164 NE2d 240; Pearlman v. W. O. King Lumber Co., 302 Ill App 190, 23 NE2d 826. The written statement contained some explanation for the collision, but plaintiff denied material portions of that statement. Whatever value it might have for impeachment purposes will be for the jury to determine.

The court erred in directing a verdict for the defendant. The judgment is reversed and the cause is remanded for a new trial, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Homer Bailey, Defendant-Appellant.
    Gen. No. 51,488.
    First District, Third Division.
    December 14, 1967.
    Rehearing denied January 25, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was indicted on a charge of committing the offense of burglary and for taking indecent liberties with a child. He waived a jury, was tried by the court, found guilty and sentenced to 5 to 15 years in the State Penitentiary. His sole contention on appeal is that the evidence does not establish beyond a reasonable doubt that he was the man who committed the crime.

At about 4:00 a. m. on October 21, 1965, 10-year-old Antoinette Hudson, who lived with her mother, brothers and sisters in a three-room apartment, was awakened by a man entering her bedroom window from the fire escape. She testified that from her bed, which was a few inches from the window, she observed the man go over and sit on the bed in which her 9-year-old sister Lynn was sleeping. The intruder then got up and went to look into the adjoining bedroom in which the girls’ mother slept. He returned and sat down next to Lynn again and Antoinette went back to sleep.

Lynn testified that she was awakened by the man rubbing his hand on the inside of her thigh. She asked him his name and he replied, “Rock,” and pushed her back down on the bed. She screamed and called her mother, whereupon the intruder ran out of the apartment through the front door. As he left he said, “The door was just open and I am closing it.”

Mrs. Hudson testified that on the night in question she and her five children were sleeping in her three-room apartment. The children occupied beds in the first bedroom and she was sleeping in the second bedroom. There was also a man in her room who was not identified, but, as she testified, he was not in bed with her. She heard her young daughter scream and then saw a man leaving the apartment through the front door. As she stated it, “When he opened the door, I see him as he was going out the door and the light, you know, shone. He went into the hallway.” Her bed was by the open bedroom door so that she had a clear view of the door through which the intruder made his escape. She recognized him, but at that time only knew that his name was “Homer.” She testified that she had seen him in her apartment three times previously and on two occasions at a friend’s home.

Later on the same day the defendant went to the police station because, as he testified, a friend had told him the police were looking for him. He was questioned and released, but was arrested the following morning. That afternoon Mrs. Hudson picked him out of a lineup at the 21st District Police Station. At the trial Bailey was again identified as the intruder, this time by Mrs. Hudson and her two daughters.

Defendant argues, first, that Mrs. Hudson’s identification was based on a “split-second glance at an intruder who was hurriedly departing from a dark apartment into a lighted hallway by a woman who had just been awakened and was still lying in bed.” He rests his case on the argument that she was honestly mistaken. He points out that human sense perception and memory are fallible and asks us to take judicial notice of the fact that identification would be even more impaired where a witness only saw the person for a few seconds immediately after she awoke. Quoting Jeremy Bentham and others, defendant argues that although witnesses are the eyes and ears of justice, those eyes and ears are sometimes defective.

We are aware that visual perception is subject to error as are all our senses. That is not to say however that courts can no longer trust evidence which might be tainted by human fallibility. To make such an exclusion would in effect render impotent the administration of criminal law. Mrs. Hudson was only 12 feet from the defendant when she recognized him. She knew him from previous meetings and she was positive that Homer Bailey and the intruder were one and the same person. Her identification was corroborated by her two daughters.

The child victim testified that she had had a good look at the intruder when he was sitting next to her on the bed. Defendant objected at the trial that she was incompetent as a witness because of her age. The trial judge examined her and concluded that she was competent and highly intelligent. Her sister likewise identified the defendant.

Defendant contends that Antoinette Hudson stated that she was unable to identify the intruder. At the trial she testified that she was absolutely sure that Homer Bailey was the man she saw coming through the window and walking around the apartment. Later on cross-examination she testified that at that time she did not know who it was, but it is clear that she merely meant by this that she had not known or seen the intruder before.

The two arresting officers testified that the defendant stated to them that he was in the building in which the Hudsons lived on the night of the crime, but that he did not go to the fourth floor where they lived. When he testified at the trial Bailey denied having admitted this, but he was unable to account for his whereabouts on the night in question, other than to say that he presumed he was south of Madison Street.

The testimony of the three witnesses who identified the defendant clearly supports the trial court’s finding unless we adopt the view being urged upon us by the Public Defender with respect to the innate weakness of a conviction based on identification. This is presented at length in his brief. While not saying so specifically, he would have us ignore the rule that the credibility of a witness is for the trier of fact to determine and that only in exceptional cases should a reviewing court disturb the jury or the trial court’s decision. The Public Defender quotes at length from Wall, Eye-Witness Identification in Criminal Cases, 90, 119-122 (1965), that identifications are based on familiar associations and that frequently familiarity is based on a past experience unrelated to the crime. Several instances are cited in which persons identified a man as one whom they have known and later it was specifically revealed that he was not the man. Counsel likewise points to the fallibility of sense perception and human memory, setting forth examples of false identification, apparently for the purpose of pointing out that direct identification by a witness who has seen and known the defendant may in itself be a reason for disbelieving him. We recognize the possibility that courts being composed of human beings may commit error.

Sight is one of the great miracles of nature. Through an instrument hardly an inch in diameter we can see on earth where the air is clear, hundreds of miles and a sky many millions of miles away. This is not done by the eye itself, but by communication of the eye with the brain through thousands and perhaps millions of fibers. Nevertheless we know through countless daily experiences that the eye serves us accurately except on rare occasions. The common observation, “It must be true. I saw it with my own eyes,” reveals the faith we have in occular vision. The conclusion the defendant would have us reach is that such evidence is not trustworthy because certain cases have revealed erroneous identifications. What percentage such cases bear to the whole is unknown and in all probability unknowable.

What then of other types of evidence, such as indirect or circumstantial. It was for a long time argued by both bar and laity that circumstantial evidence was inferior to direct evidence, but it has been subsequently recognized that under certain conditions circumstantial evidence may be more accurate than direct. There have been periods in which the alibi was in ill repute because it was supposed to be easy for a defendant to get a friend or acquaintance who would testify that at a certain time and place he saw the defendant. But, as Professor Wigmore points out, it is impossible to ascribe a greater weight to one class of evidence than to the other, and each class has its special dangers and advantages. Nearly all evidence is produced through human beings and, as such, the weight to be accorded it is a matter of credibility to be determined by the jury. 1 Wigmore, Evidence § 26 (3rd ed, (1940)).

No reason whatever is assigned for any desire on the part of the State’s witnesses to accuse the defendant falsely. The jury saw and heard them, as did the trial court. This is an advantage which a reviewing court cannot derive from the cold record.

The Public Defender concludes his argument as follows :

“As we see it, there is something shocking and terrifying about taking away five to fifteen years of a citizen’s liberty under a split-second identification such as the one of record at the bar.”

This, in a legal argument addressed to a reviewing court, borders on hysteria. We realize the serious import of our decisions within the limited sphere in which our judgment may be exercised. The Public Defender and his assistants are officers of the court and are expected to advise the court of the facts and the law which support their position. It has been considered a professional impropriety for a lawyer to throw onto the scale of justice his own emotional reactions. This is of no aid to the court. We welcome their zeal and earnest argument, but they must keep within the bounds of reason.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Theresa Gonzalez, Plaintiff-Appellant, v. Seymour B. Seiff, Defendant-Appellee.
    Gen. No. 51,817.
    First District, Third Division.
    December 14, 1967.
    Joseph B. Gilbert, of Chicago, for appellant.
    George F. Barrett, of Chicago (Donald J. Duffy, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order dismissing plaintiff’s cause of action against defendant, Seiff.

Plaintiff filed her original complaint on April 19, 1963, against Norman Stone alleging that she was injured on December 25, 1962, as she was alighting from a taxicab operated by Stone. Plaintiff was accompanied by her husband and five minor children, ages one month to six years, when the accident occurred.

On September 17, 1963, plaintiff filed interrogatories and the answers thereto were filed by Stone on October 22, 1963. Those answers set forth that the name appearing on the taxicab was American United Cab Association; that Seymour Seiff was the owner of the vehicle involved; that Stone’s relationship to the association was that of member and driver for associate member and owner of the vehicle, Seymour B. Seiff; that Seiff was the named insured on a public liability insurance policy covering the vehicle issued by Prudence Mutual Casualty Company, and that Stone was also covered by that policy.

On November 5, 1965, counsel for Stone filed a motion to spread of record the death of Stone as of December 15, 1964. Plaintiff thereupon was permitted to file an amended complaint against the administrator of Stone’s estate. On April 29, 1966, on motion of plaintiff, she was given leave to file instanter her second amended complaint against Seiff, and Stone’s administrator was dismissed as a defendant. Defendant Seiff was served with process July 5, 1966.

On July 27,1966, defendant moved to dismiss plaintiff’s complaint on the ground that it was barred by the statute of limitations. The court entered an order allowing that motion. It is from that order that plaintiff appeals.

Plaintiff contends on appeal that she was within the exception to the Limitations Act provided in section 46 (4) of the Civil Practice Act. (Ill Rev Stats 1965, c 110, par 46.) The statute reads in part as follows:

“(4) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (a) the time prescribed or limited had not expired when the original action was commenced; (b) failure to join the person as a defendant was inadvertent; (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, . . . ; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; and (e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, . . . even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.”

Defendant’s position is that plaintiff did not meet the requirement of subsection (b) dealing with the inadvertent failure to join Seiff as defendant.

Plaintiff argues that the word “inadvertent” is defined as “not turning the mind to a matter; heedless; negligent; inattentive.” (Silver v. Lee Shell Equipment Corp., 31 Ill App2d 266, 269, 175 NE2d 287 (1961).) She says that it was heedless or negligent not to anticipate the possibility that the driver might die during the course of litigation. While plaintiff may not have considered the possibility she did have knowledge that Seiff was the owner of the vehicle, and this information was disclosed to plaintiff in answers to interrogatories filed some fourteen months prior to the running of the statute of limitations. Plaintiff points out that it was not necessary to add Seiff as an additional defendant then because the driver, Stone, was a true defendant and was covered by the same policy of insurance as was Seiff. By that very statement plaintiff shows that failure to join Seiff was the result of a deliberate decision to sue less than all the tortfeasors and not mere failure to consider joining the owner.

A case factually similar to the case at bar is Horan v. Brenner, 57 Ill App2d 83, 206 NE2d 488 (1965). In that case plaintiff filed an action for personal injuries against an individual. Immediately after the accident plaintiff was informed of the identity and location of the corporation whose car and whose agent were involved in the occurrence and yet he took no action against the corporation until seven years after the accident. The court there held that the failure to join the corporation as a defendant was not inadvertent because plaintiff knew of the facts and did not act thereon. That court cited Robinson v. Chicago Nat. Bank, 32 Ill App2d 55, 176 NE2d 659 (1961), wherein it was said:

“In our view the word ‘inadvertence’ means excusable ignorance, not excusable failure to act after the facts are discovered. When plaintiff read the answers to the interrogatories she knew the identity of the proper defendants. She was not then ignorant of any fact. A plaintiff must act with reasonable diligence after the identity of the true defendants becomes known.”

See also Solone v. Reck, 55 Ill App2d 282, 204 NE2d 614 (1965).

In our opinion plaintiff in the case at bar is not within the intended coverage of section 46(4). Even under the definition of inadvertent urged by plaintiff she can have no relief. She was not heedless or negligent in failing to join Seiff. Whatever her reason for failing to do so, it was a decision reached when she was in possession of the knowledge that Seiff was the owner of the vehicle involved in the alleged accident.

For the foregoing reasons the order of the trial court must be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    Susan A. I. Schultz, a Minor, by Mary Schultz, Her Guardian and Next Friend, Plaintiffs-Appellees, v. Murad Agenlian, American National Bank & Trust Company, as Trustee Under Trust No. 22590, Chicago City Bank & Trust Company, as Trustee Under Trust No. 5596, Bank of Lyons, an Illinois Banking Corporation, Mary Schultz, United States of America, and Ralph Robinson, as Administrator of the Estate of A. A. Schultz, Deceased, Defendants. Appeal of Murad Agenlian and American National Bank & Trust Company, as Trustee Under Trust No. 22590, Defendants-Appellants.
    Gen. No. 52,089. (Abstract of Decision.)
    First District, Third Division.
    December 14, 1967.
    Willard J. Lassers, of Chicago (Alex Elson, Aaron S. Wolff, Elson, Lassers and Wolff, and Preston Cummings, of counsel), for appellants; Edward J. Barrett, of Chicago, for appellee.
   Opinion by JUSTICE DEMPSEY. Not to be published in full.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Cassiday, Defendant-Appellant.
    Gen. No. 67-13.
    Third District.
    December 14, 1967.
    Rehearing denied January 24, 1968.
    Patrick Cawley, of LaSalle, and Anna R. Lavin, Edward J. Caliban, Jr., and James F. Ashenden, Jr., of Chicago, for appellant.

      Howard C. Wampler, State’s Attorney of Bureau County, of Princeton, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilty on two counts of a three-count indictment charging a gambling offense in violation of 1965 Illinois Revised Statutes, chapter 38, §§ 28-1 and 28-3. Upon the pleas of guilty, the judgments were entered. The trial court found Count II to be multifarious with Count I and entered a judgment of acquittal on Count II. Following a setting of a hearing on aggravation and mitigation, defendant was sentenced on the first Count of the indictment as a recidivist to a term of one to three years in the Illinois State Penitentiary and fined $1,000. He was fined $500 on Count III.

A motion for a new trial and in arrest of judgment including a motion for leave to withdraw the plea of guilty and enter pleas of not guilty and to proceed to trial were denied. Appellant contends that the court erred in not permitting defendant Cassiday to withdraw his plea of guilty; that the trial judge should have disqualified himself when he interpreted the motion as an attack on his integrity; that defendant was not accorded procedural due process in imposing the sentence on him as a recidivist; and that the court erred in its findings that defendant had not presented good and valid defenses worthy of consideration by both the court and jury. The contention is also made that the penalty provisions of the section of the criminal code involved are unconstitutional.

The basic question before us arises from the facts and circumstances preceding the entry of the plea of guilty. The record discloses that on the basis of the complaint, a search warrant was issued and following its issuance a criminal complaint was filed charging defendant with a violation of the Illinois Criminal Code hereinabove referred to, i. e., keeping of a gambling device described as pool tabs, lottery tickets, tip boards and punchboards. Thereafter a superseding information was filed charging defendant with substantially the same offense. A second count charged him with keeping a gambling place. Following these actions, an indictment superseding the criminal complaint and the criminal information was returned framed in three counts supplementing the charges of the two-count criminal information with the third charge of keeping a gambling place at a place called the “Circus Lounge” in Spring Valley. Defendant made bond on the charges. He thereafter appeared with his counsel and entered pleas of not guilty to each of the three counts in the indictment and the cause was continued for the purpose of filing pretrial pleadings.

On November 29, 1966, defendant appeared with his counsel and moved to withdraw his plea of not guilty and his jury demand and asked leave to enter a plea of guilty to each of the counts. The court admonished the defendant that a person convicted of gambling could be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year or both and also that persons convicted of an offense under section 28-3 could be fined $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year or both and also that persons convicted of an offense under Section 28-3 could be fined $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year or both and for each subsequent conviction, such person could be fined not to exceed $1,000 or imprisoned in the penitentiary from one to three years or both. The court asked then if it was still the desire of the defendant to plead guilty knowing the penalty which the court could impose upon him and judgments of guilty on three counts were then imposed. The defendant was advised of his right to jury trial which he waived and upon entry of judgment the court stated “Gentlemen, do you have anything in the way of aggravation or mitigation at this time or do you want the matter set down for a subsequent hearing?” Defendant agreed to proceed at the time and the State’s attorney likewise agreed.

The State’s attorney thereafter requested the court to take judicial notice of a previous criminal information for gambling ostensibly against defendant and of a case involving a conviction of Thomas Cassiday for the crime of attempted bribery. It was then stipulated in the record that Mr. Cassiday was the owner of the Circus Lounge referred to in Count III of the indictment and a one-story warehouse which were subjects of Counts I and II. Nothing further was offered by defendant or his counsel in way of mitigation except that the court take into consideration the fact of the guilty plea. The counsel for defendant made application for probation. The State’s attorney thereupon made his recommendation that since this was the second conviction, the State’s Attorney recommended that probation be granted but that probation be made conditional upon the Circus Lounge being closed for one year under the provisions provided as to a public nuisance. He recommended that the warehouse be made subject to inspection by any police officer or probation officer without notice and without a search warrant; that the probation not exceed six months; and that there be a maximum fine of $2,000. Counsel for defendant protested that it could not be considered a second offense but the State’s attorney argued that it should because of the similarity of the language between the 1955 statute and the present statute but concluded that the People reiterate the recommendation for probation and asked that it be granted. The court then indicated it would take the matter under advisement and the cause was continued until December 6, 1966. On that date the court found that Count I did constitute a repeated offense and found that Count II was duplicitous, denied the application for probation and sentenced defendant to a fine of $1,000 and imprisonment for a term of one to three years on Count I and a fine of $500 on Count III.

On December 29, 1966, defendant by his attorneys moved the court for a new trial in arrest of judgment including leave to withdraw the plea of guilty and enter a plea of not guilty to the charges of the indictment. It was specifically alleged that the pleas of guilty were not free and voluntary in that they were induced by promises and representations that an agreement or understanding had been concluded among the interested parties, the State’s attorney, defense counsel and the court, that no incarceration would result from the entry of the guilty plea. This was supported by affidavits of defendant and his counsel. The affidavit of defendant referred to several meetings with the prosecutor prior to the defendant’s engagement of counsel wherein they discussed the probable recommendations of the State should a plea of guilty be entered. He stated that no conclusion was reached because the prosecutor insisted on a six-month suspended sentence to which defendant was opposed. Defendant further stated that after engagement of counsel he was advised that in conversations between the prosecutor and his lawyer, the recommendation of the prosecutor remained unchanged and they concluded that he would enter a plea of not guilty because there were substantial and valid defenses going not only to the merits but to the search warrant and the indictment. Thereupon a plea of not guilty was entered.

Defendant states that thereafter defendant advised his counsel that the additional publicity of the pending case was becoming a severe burden to his aged mother with whom he lived. Defense counsel agreed to discuss the matter with the prosecutor and the judge to ascertain if a plea of guilty could be entered without involving any incarceration. Four days later, his attorney phoned him advising him that an agreement had been reached that morning in the judge’s chambers at a meeting between the State’s attorney and himself and that on a plea of guilty a disposition would exclude any incarceration. Defendant asserted in his affidavit (which he repeated in his testimony) that the only reason he agreed to change his plea was his absolute belief and reliance on the statements of both his attorney and the prosecutor that the judge would follow the State’s attorney’s recommendation and he relied completely upon the representations of his counsel that in no event would there be any incarceration if he changed his plea. Counsel made a similar affidavit in effect and stated that in response to a query by the judge as to what defendant’s position would be in regard to the recommendation, counsel for defendant stated that his client would be agreeable providing under no circumstances he be incarcerated for any of these charges. While there was no explicit statement that the judge agreed to follow such recommendation, both the prosecutor and defense counsel believed that the judge would follow the recommendation. He stated that if he had not believed that the recommendation would be followed, the court would not have allowed him to depart without warning that he would not be bound by the recommendation.

Defense counsel stated he advised his client in accordance with his beliefs that he would be sentenced as recommended. Defendant further asserted that he had good and valid defenses to the indictment including the invalidity of the search and his innocence of the charges on the indictment. He also stated that he was not advised by the court of the consequences of his plea. The State’s attorney replied to the affidavit basically to the effect that the attorneys understood that the court was not required to follow the recommendation made. The State’s attorney, in reply to a query by defendant’s counsel as to whether the judge would follow his recommendation, stated that although the prosecutor didn’t feel the judge had made any commitment in the matter, his own experience was that the court usually followed the recommendations if it considered them reasonable in light of the circumstances. The State’s attorney stated that in his personal opinion he felt that the recommendations were reasonable. He also stated that he informed both the defendant’s attorney and the defendant that judges have usually followed the recommendations of the State’s attorney if reasonable in light of the circumstances and that he felt the recommendation was within reasonable limits although the judge was not bound to accept the recommendation. There were other discussions on the subject between the prosecutor and defense counsel and the court which it is unnecessary to relate in detail. It is apparent that the court did not at any time declare to the defense attorney or defendant that he would follow the recommendation. The State’s attorney, however, both in the record and in this court has indicated that no imprisonment had previously been exacted for a gambling charge in the area, and that he was surprised at the sentence imposed. He anticipated and reasonably expected that the court would follow the recommendation and that there would be no penalty of imprisonment imposed of any kind.

While permission to withdraw a plea of guilty and enter a plea of not guilty is a matter within the discretion of the court, this judicial discretion should always be exercised in favor of innocence and liberty in the light of the preference that is shown by the law for a trial upon the merits by a jury (People v. Moore, 342 Ill 316, 174 NE 386). The court in the case of People v. Moore, supra, indicated that the refusal to grant leave for such a change of plea would be ruled an abuse of discretion when it appears that the plea of guilty was entered on a misapprehension of the facts or of the law; or in consequence of a misrepresentation by counsel or the State’s attorney or someone else in authority. The Supreme Court indicated that in such case the court should permit withdrawal of a plea of guilty and allow the accused to plead not guilty. In People v. Morreale, 412 Ill 528, 107 NE2d 721, the assistant State’s attorney had urged defendant’s counsel to ask for a continuance to plead guilty and promised he would not oppose probation and stated that defendant “couldn’t get hurt.” The court duly admonished defendant before accepting his plea of guilty. The State did not oppose probation, but it was denied. The Supreme Court in reversing with directions to enter a plea of not guilty indicated that while it was true that the trial court fully and properly admonished plaintiff in error of the consequences of his plea, it did not have the effect under the facts of the case of obliterating from the mind of the defendant the previous representations made to him. The same considerations are present in the case before us.

It is apparent that a number of discussions as to the disposition of the case were carried on in the presence of the court. It is clear that the court made no commitment as to the State’s attorney’s recommendations and that the court was in no manner responsible for defendant’s misapprehension. Under the record, however, it is obvious that defense counsel and defendant were led to believe that if he pleaded guilty there would be no incarceration as a consequence. Both the State’s attorney and defense counsel expected the court to follow the recommendations and it was clearly conveyed to defendant by his counsel and by the recommendations and statements of the State’s attorney that the result of a plea of guilty would be probation and a fine of not to exceed $2,000. Under the peculiar facts and circumstances in this case, the plea which was entered could not have been said to have been a voluntary plea.

While we are reluctant to reverse the action of a trial court in denying a motion to withdraw plea of guilty following admonition by the court, we do not perceive how the interests of the People could be adversely affected by permitting defendant to withdraw his plea of guilty and have his day in court (People v. Schraeberg, 340 Ill 620, 173 NE 348; People v. Clavey, 355 Ill 358, 189 NE 364. We feel that the ends of justice would be best subserved by permitting the withdrawal of the plea of guilty.

In view of our conclusion in the case we do not find it necessary to discuss the other matters which were presented by defendant on appeal in this cause. This cause will, therefore, be reversed and remanded to the Circuit Court of Bureau County with directions to vacate the plea of guilty and the judgment and sentence pursuant thereto and allow the withdrawal of the guilty plea and reinstatement of the not guilty plea by defendant and for other proceedings consistent with this conclusion.

Reversed and remanded with directions.


author: ALLOY, J.

text:
    People of the State of Illinois, Appellee, v. Gary Lee Stoudt, Appellant.
    Gen. No. 66-55.
    Third District.
    December 15, 1967.
    Rehearing denied January 24, 1968.

      Donald E. Blodgett, of Rock Falls, and Besse, Besse, Frye & Arnold, of Sterling, for appellant.
    L. E. Ellison, State’s Attorney, of Morrison, for appellee.
   ALLOY, J.

Defendant Gary Lee Stoudt was convicted of the murder of Helen Van Densen. The jury did not recommend the death penalty and he was sentenced to the Illinois State Penitentiary for not less than 25 nor more than 50 years.

The record discloses that defendant and the victim Helen Van Densen met at a tavern in Sterling, Illinois, on the evening of December 27, 1965. Defendant had apparently consumed enough liquor to make him drunk at the time. Defendant and the victim left the tavern together and drove off in defendant’s automobile. Defendant admitted that he drove the victim to her home in northeast Sterling and when she refused to get out of the car, he proceeded with her as a passenger to a gasoline station where the gas tank of the automobile was filled. He then proceeded in the direction of Sterling. Defendant testified that this is the last he remembered until the following morning.

The corpse of Helen Van Densen was found and viewed in a cornfield on the outskirts of Sterling, Illinois, on the morning of December 28, 1965. The body had been badly mutilated. Both breasts had been removed with a knife. There was a long vertical incision extending from the lower chest down to and through the anus, through the abdomen and through the genitalia. There were also other cuttings and lacerations. The pathologist testified that he found four bullet wounds in the left side of the face of the victim and that, in his opinion, death was due to the bullet wounds of the head. Pictures had been taken of the body in the condition in which it was found (both black and white and color slides) showing the nature of the cutting and mutilation of the body.

Defendant’s girl friend, one Patricia K. Parker, was called as a court’s witness over objection of defense counsel. This witness described herself as defendant’s girl friend and testified that they planned to marry after Stoudt got his divorce and that they had spent nights together at her home. The evidence disclosed that Stoudt came to the home later than expected, around 11:30 p. m.; that he turned off the lights before coming in; that he immediately went into the bathroom and was in there with water running for around half an hour and asked the witness to get him a pair of shorts which she did. He thereafter came out of the bathroom wearing only the shorts. He was carrying a pile of wet clothes which he thereupon took to the basement and burned in the furnace.

The evidence also disclosed that the automobile belonging to defendant had blood over the front seat and certain other places in the automobile. A couch cover had been taken from the parker apartment to cover the front seat. The witness Parker also stated that she had wiped up the floor of the bathroom with a towel which had been obtained from a motel. An expert witness compared blood samples taken from the towel and various other areas including the automobile and confirmed that the blood was the same type blood as that taken from the victim’s body. A ballistics expert testified that the bullet wounds in the decedent’s head were caused by bullets which were fired from the same .22 caliber revolver which had belonged to witness, Patricia Parker. There was evidence that this revolver was in possession of the defendant on the night in question.

Defendant took the stand in his own behalf and admitted that he had left the tavern with the deceased and remembered driving her to the place where she said she lived. She decided not to remain because another car was there, and defendant drove away from there. He remembered also purchasing the gasoline to fill his automobile tank and also remembered driving in the direction of Sterling. Defendant stated that he could not remember anything which occurred the rest of the night until he woke up the following morning in Patricia Parker’s apartment. In answer to questions as to whether he had cut up the deceased, he replied simply in the negative, and on one occasion replied “Not that I remember.”

A psychiatrist who testified on behalf of the State in rebuttal indicated that defendant was not mentally ill but was what is described as a “sociopathic” personality. He stated that it involves the pattern in an individual of not accepting responsibility for the past with a tendency to run away; that this made defendant unable to give an intelligent evaluation of what did or did not take place or give reasons why. The psychiatrist stated affirmatively that defendant had the ability to appreciate the criminality of the act of killing and that defendant was not mentally defective. He likewise stated that, on the assumption that defendant killed Mrs. Van Densen and mutilated her and went to the apartment of his girl friend where he turned off the lights and burned the wet clothes and did the other acts recited in the statement of facts, he had no reason to feel that there did preexist a mental illness which would have interfered with defendant being able to make a decision. He stated that defendant definitely had the ability to appreciate the criminality of his act in killing Mrs. Van Densen. On. cross-examination, the psychiatrist stated that defendant has the ability to conform his behavior to law but does not have the desire or willingness to do so. He also stated that the inability to recall events claimed by defendant did not indicate a mental illness, but rather an unwillingness to accept the reality of the situation. He characterized such inability to recall as a “willful thing.”

On appeal in this court, defendant contends that the trial court improperly called Patricia Parker, the girl friend of defendant, as the Court’s Witness where the State failed to show a material injustice would otherwise result or compelling reason for doubting her veracity; that the trial court improperly allowed colored slides and photographs of the victim’s mutilated body into evidence and to be viewed by the jury; and that after hearing the testimony of the State’s psychiatric expert, the trial court had reason to believe the defendant was incompetent to stand trial and erred in not suspending the proceedings and conducting a hearing to determine defendant’s competency.

Calling of a witness as a Court’s Witness is a matter within the discretion of the trial court where it appears that the State’s attorney cannot vouch for the credibility of the witness and there is a showing that manifest injustice would result if such witness did not testify. Unless such discretion is abused, it would not constitute reversible error. In People v. Banks, 7 Ill2d 119, 129 NE2d 729, a woman was called as a court’s witness who was the paramour of the defendant charged with murder. She was also engaged to be married to him even though they were both married to others. The Supreme Court in that case indicated that there was ample cause for the State’s attorney to doubt her veracity and integrity and that yet without her testimony there was a definite likelihood of a miscarriage of justice. The relationship as between the witness and the defendant in this case is almost identical as that found in the Banks case. In the case before us, the trial court in permitting witness Patricia Parker to be called as a court’s witness, stated that she was Stoudt’s girl friend; that she had spent nights with him at her home; and that they planned to be married after Stoudt got his divorce. The close involvement of witness Parker with defendant was obvious from the record. The murder weapon was obtained from her premises and the evidence showed the presence of blood brought to the premises by defendant of the same type as that of the decedent. The description of defendant’s behavior immediately following the death of Mrs. Van Densen was significant and important in developing the State’s case and could have been described as being essential to prevent a miscarriage of justice. The court’s witness need not be an eyewitness (People v. Siciliano, 4 Ill2d 581, 123 NE2d 725). We, therefore, find no reversible error in the circumstance that witness Patricia Parker was called as a court’s witness under the facts in this case.

In the case before us, the crime was obviously committed with such extreme atrocity and violence that the slides and pictures could add little to inflame or prejudice the jury. The colored slides were exhibited to this court on appeal and the court’s reaction was that the actual description in the testimony as to the nature and extent of the wounds could easily portray a more gruesome image than that shown by the photographs. The pathologist testified as to the condition of decedent’s body and his findings. Introduction of the photographs on the record in this case in our judgment could not have improperly influenced the jury. We draw no distinction between the use of black and white photographs and colored ones in evidence. It is apparent from the record that the photographs illustrated the testimony of the pathologist as to the nature and extent of the wounds of the deceased. They also tended to connect defendant with the commission of the offense since the nature of the wounds were such that they could have been inflicted with a large sharp knife. The knife which was in defendant’s possession within 24 hours of the victim’s death had human blood on it of the same type as that of decedent. The photographs may also have negatived the defenses of intoxication and insanity since the nature of the wounds showed a careful well-coordinated attempt to dismember the body of the victim. It is also notable that the indictment alleged the decedent was killed with a gun or a knife. Even though the pathologist concluded that she was killed with a gun, the State still had the right to offer proof in support of one of the counts of the indictment, namely, that she was killed with a knife. Under the record in this case, the admission of the photographs was discretionary with the trial judge (People v. Myers, 35 Ill 2d 311, 220 NE2d 297; People v. Hoffman, 32 Ill2d 96, 203 NE2d 873). We do not believe that such discretion was abused. We, therefore, conclude that there was no reversible error in the submission of the photographs and colored slides to be viewed by the jury.

The final question is whether the trial court erred in failing to conduct a sanity hearing. The statute provides that if during the trial the court has reason to believe that defendant is incompetent, the court shall suspend the proceedings and conduct a competency hearing (1965 Ill Rev Stats, c 38 §§ 104-1, 104-2). An incompetent under this rule is a person who is unable because of physical or mental conditions to understand the nature and purposes of the proceedings against him or to assist in his defense. There is no evidence in the record that defendant had either a physical or a mental condition which would make him unable to understand the nature and purposes of the proceedings. Defendant’s contention is that because of his mental condition he was unable to assist counsel. The psychiatrist, in his testimony, stated that upon an assumed inability of Gary Stoudt to recall events between 9:30 p. m. on the night in question and 7:00 a. m. of the following morning, he could not be of much value to his attorney. The psychiatrist did not say that defendant could not recall but only that Gary Stoudt stated that he could not recall. The conclusion of the psychiatrist based on the record before us indicates that Gary Stoudt would not recall because he did not desire to do so. It was not a case of not being able to recall. While in a proper case, the inability to assist counsel may arise and require the conduct of a separate sanity hearing, the duty of the trial court to cause a sanity hearing to be held is only imposed when evidence or circumstances give rise to a bona fide doubt as to the accused’s sanity at the time of the trial. (People v. LeMay, 35 Ill2d 208, 210, 220 NE2d 184; People v. Lego, 32 Ill2d 76, 78, 203 NE2d 875.) The defendant in the case before us, sat through the five-day trial with no unusual outbursts or irrational behavior. He took the stand and testified at length responsively to attorneys’ questions both on direct and cross-examination. The trial court observed him during the five-day period and observed him on the stand. He heard the testimony of Patricia Parker as to defendant’s actions immediately after the time of the murder. The court had good reason to conclude, in the light of all this evidence in the record, that the impromptu remark by the People’s psychiatrist, as to defendant’s value to his attorney on the trial, was not sufficient to raise a bona fide doubt as to defendant’s competency so as to require a sanity hearing.

The fact that there may have been technical errors in trial of the cause should not call for a reversal. It is apparent from the record that real justice has not been denied or that the verdict resulted from any such error. There was strong competent evidence in the record which established defendant’s guilt and in our judgment the errors alleged, even if they did in fact constitute errors, were not so prejudicial as to justify a reversal in this cause.

The judgment of the Circuit Court of Whiteside County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and CULBERTSON, J., concur.