author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ruth Wallace et al., Defendants-Appellants.
    (Nos. 57271, 57273 cons.;
    First District (5th Division)
    February 23, 1973.
    Arthur E. Engelland, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

On May 16, 1964, Katie Holloway, Ruth Wallace, and a third party were standing in the doorway of a Chicago department store when they were arrested by two police officers. One of the officers testified that they had seen Holloway and Wallace suspiciously transferring huge sums of money to each other. Confiscating the money, the officers put the three in a police car. The officers testified that en route to the station, Mrs. Wallace told them: “Take the money and let me go, my job is in jeopardy.” Miss Holloway then said: “Let us go, take the money and let us go.” Both Mrs. Wallace and the third party denied the conversation.

On May 7, 1965,- the defendants, Ruth Wallace and Katie Holloway, were found by a jury to be guilty of “attempt” (bribery) in violation of Ill. Rev. Stat. 1963, ch. 38, sec. 8 — 4. On February 6, 1968, defendants filed a motion to void judgment and sentence, pursuant to Ill. Rev. Stat. 1967, ch. 110, sec. 72. The grounds were that the crime of attempted bribery no longer exists in Illinois. A hearing was held on June 17, 1968. The motion was denied. From that ruling, this appeal is taken. The sole issue presented for review is whether the crime of attempted bribery exists under Ill. Rev. Stat. 1963, ch. 38, sec. 8 — 4.

OPINION

Bribery and attempted bribery were apparently distinguishable offenses under earlier Illinois statutes. Traditionally, the distinction between the two was that bribery necessitated two individuals (the offeror and acceptor), with corrupt motives, whereas attempted bribery required a corrupt motive on the part of only one individual. Illinois Revised Statutes 1953 (applicable in People v. Lyons (1954), 4 Ill.2d 396, 122 N.E .2d 809), are typical of the statutes prior to January 1, 1962. They provided for the crime of bribery in ch. 38, sec. 78 and attempted bribery in ch. 38, sec. 79:

“§ 78 Whoever corruptly, directly or indirectly, gives any money or other bribe * * #.
§ 79 Every person who shall offer or attempt to bribe * * *.” (Emphasis added.)

In People v. Peters (1914), 265 Ill. 122, 106 N.E. 513, the Illinois Supreme Court construed two provisions similar to section 78 and section 79. The court held that bribery and attempted bribery were distinguishable by the number of guilty parties involved. The court noted that to sustain the conviction for bribery, both a culpable offer and acceptance are required. The culpable acceptance was lacking in Peters; the acceptor knowingly concealed officials in his office so that they might serve as witnesses in the future prosecution. Thus, the court reversed the conviction under the bribery statute (similar to section 78).

People v. Lyons (1954), 4 Ill.2d 396, 122 N.E.2d 809, is heavily relied upon by defendants. The facts in Lyons are almost identical to those in Peters. Defendant was convicted of bribery under section 78. The acceptor of the bribe had also knowingly concealed officials in his office for purposes of witnessing the crime. Affirming the conviction, the Illinois Supreme Court explicitly overruled Peters and stated at 4 Ill.2d 396, 399, 122 N.E.2d 809, 811:

“A reasonable construction of the provisions in the light of their evident purpose requires that any person who corruptly engages in any such transaction is guilty of bribery, regardless of the motive of the other party thereto.”

The practical effect of Lyons, defendants argue, is that by requiring only one culpable party to complete the offense of bribery, Lyons eliminates the traditional distinction between bribery and attempted bribery. Thus, by merging the two offenses, the Lyons court has, in effect, rendered the attempted bribery statute, section 79 at the time of Lyons, a nullity. The argument concludes that since the present attempt statute (Ill. Rev. Stat. 1963, ch. 38, sec. 8 — 4), to the extent it is used to prosecute bribery cases, is only a modern day version of section 79, section 8 — 4 is also a nullity.

We do not agree with defendants’ theory. Their critical assumption that Lyons rendered section 79 void is wholly without merit. Section 79 was still a viable part of the criminal law after that decision. The Illinois Supreme Court in Lyons merely held that prosecution under section 78 (the bribery statute) was valid. This is a far cry from a holding, as defendants urge us to conclude, that any prosecution under section 79 (the attempted bribery statute) would be void. The facts in the case at bar illustrate the continued validity of section 79 after Lyons. The case at bar involves the mere offer of money, without acceptance. Conviction in a case similar to the present case could properly have rested prior to 1962 on section 79 (“every person who shall offer”), without disturbing the Lyons decision. We thus hold that Lyons broadened section 78, but did not narrow section 79. Therefore, the crime of attempted bribery still existed after Lyons. Defendants do not contend that any development after Lyons has rendered the present attempted bribery statute (Ill. Rev. Stat. 1963, ch. 38, sec. 8 — 4) a nullity. Thus, since attempted bribery existed after Lyons (section 79), it still exists today.

Any decision that prosecution under Ill. Rev. Stat. 1963, ch. 38, sec. 8 — 4 for attempted bribery should cease is properly a legislative one. In the absence of the legislature’s intent to deprive section 8 — 4 of its effect in bribery cases, this court shall not find section 8 — 4 void in such cases.

The judgment of the circuit court is affirmed.

Judgment affirmed.

DRUCKER, P. J., and ENGLISH, J., concur.

       Section 8 — 4(a) reads:
      “Elements of the Offense.
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    The People of the State of Illinois ex rel. Anthony Anastasia, Plaintiff-Appellee, v. Civil Service Commission of the City of Blue Island et al., Defendants-Appellants.
    (No. 56398;
    First District (1st Division)
    February 26, 1973.

      Romie J. Palmer, of Blue Island, for appellants.
    Richard F. McPartlin, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This is an appeal from a declaratory judgment construing the provisions of the Illinois Pension Code with respect to the election of a policeman receiving disability payments to retire from the force and receive a regular pension in lieu of his disability pension. The lower court determined that, in the event the plaintiff makes the election, his regular pension is “* * * to be 50% of the salary attached to the rank of patrolman held by him * * * for one year immediately prior to his retirement * *

The plaintiff, Anthony Anatasia, became a patrolman with the Police Department of the City of Blue Island, Illinois, in 1947 and served in that capacity until November 15, 1961, when he suffered a heart attack. On or about February 1, 1962, he took a leave of absence from the force and was placed on the pension rolls. From the time of his leave until the present time, he has received disability payments based on one-half of the salary attached to his rank for one year immediately prior to his suspension from active duty.

In April of 1969, after examination by a physician^ the plaintiff applied for reinstatement to the police force and a return to active duty. He was refused. He then brought this suit in Cook County Circuit Court on two counts, the first for mandamus to compel his reinstatement to the police force and the second for a declaratory judgment to determine the amount of his pension if he elects to retire from the force and receive a regular pension in lieu of his disability payments.

As to Count II, the plaintiff argued that if he elects to retire from the force, his regular pension should be one-half of the salary attached to his rank for one year immediately prior to his retirement. The defendants contended that the pension should be based on the salary attached to his rank for one year immediately prior to his disability leave, with the result that his regular pension would be the same amount as his disability pension. The lower court entered judgment for the plaintiff, construing the Illinois Pension Code in his favor. The defendants appeal from that judgment. There has been no disposition of Count I of the plaintiff’s complaint.

Two issues present themselves in this appeal. The first is whether there was a justiciable controversy which warranted entry of a declaratory judgment. The second is whether the trial judge correctly interpreted the Illinois Pension Code as to the salary basis for plaintiff’s regular pension, should he elect to retire from the police force.

It is well-settled that the provisions of the Declaratory Judgment Act should be liberally construed. (Crest Commercial, Inc. v. Union-Hall, Inc., 104 Ill.App.2d 110, 243 N.E.2d 652.) The statute, however, requires that there be an actual controversy between the parties before the courts will make binding declarations of their respective rights. (Ill. Rev. Stat. 1969, ch. 110, par. 57.1.) The narrow question before us is whether a justiciable controversy existed in the instant case. We conclude that it did.

We find analogous the situation presented in Roberts v. Roberts, 90 Ill.App.2d 184, 234 N.E.2d 372. There the plaintiff, who had been divorced from the defendant, asked the court to construe the Illinois Divorce Act to invalidate part of a divorce property settlement. The part in issue provided that periodic payments of a lump-sum settlement would cease upon her death or remarriage. The court noted that there was no allegation that either contingency was imminent. In determining that a declaratory judgment was justified, the court said:

“We believe that there is an actual controversy in the instant case. There are adverse legal interests. Although no wrong has yet been committed, such is not necessary to obtain declaratory relief. The mere existence of a claim, ássertion or challenge to plaintiff’s legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff’s rights or status, damages plaintiff’s pecuniary or material interests and establishes a condition of justiciability.” Roberts v. Roberts, 90 Ill.App.2d at 187, 234 N.E.2d at 374.

Similarly, in the case before us, the plaintiff asked the trial court to construe the Illinois Pension Code to determine the amount of the pension he would receive if he elects to retire from the force. An actual controversy existed in the dispute between the plaintiff and the defendants over the amount to be paid. The guidelines set out in Roberts have been satisfied and the lower court properly rendered a declaratory judgment to resolve the controversy. The cases cited by defendants do not require a contrary result, since they do nothing more than reiterate the general rules under which we have determined that an actual controversy existed in this case.

Proceeding to the next issue on this appeal, we must first examine the applicable section of the Illinois Pension Code:

“§ 3 — 114. Disability Pension. Whenever a policeman becomes physically or mentally disabled to an extent which necessitates the suspension of his duty on, or retirement from, the police force, he shall be paid a pension of % of the salary attached to his rank on the police force for 1 year immediately prior to the time of suspension of duty or retirement. Whenever disability ceases and the policeman resumes his police duty, the pension shall cease. If the disability continues for a period which, when added to his period of active service equals 20 years, the policeman shall, if he is age 50 and if he elects to then retire from the police force, be paid a regular pension in lieu of such disability pension.” Ill. Rev. Stat. 1969, ch. 108%, par. 3 — 114.

The plaintiff has been receiving disability payments in accordance with the provisions of Section 3 — 114. He asked the trial court to determine that the basis of his regular pension should he elect to retire would be 50% of the salary attached to his rank for one year immediately prior to his retirement, rather than one year prior to his disability leave. We find that the lower court correctly agreed with the plaintiff.

Pension statutes are to be liberally construed in favor of those who benefit under them. (Oliver v. Retirement Bd. of Municipal Employees, 311 Ill.App. 38, 35 N.E.2d 405.) But, in so doing, we must keep in mind that the goal of statutory interpretation is a determination of the legislative intent behind enactment of the statute. The plain language of the law cannot be changed to coincide with a court’s assessment of what a statute means. Moweaqua Coal Corp. v. Industrial Com., 360 Ill. 194, 195 N.E. 607.

In this case, the statutory language is clear. A policeman who becomes disabled and is suspended from active duty receives a disability pension based on the salary attached to his rank for one year immediately prior to his suspension from duty. A policeman who becomes disabled and retires from the force receives a retirement pension based on the salary attached to his rank for one year immediately prior to his retirement. A policeman who receives disability payments and then elects to retire receives a regular pension (in lieu of his disability pension) based on the salary attached to his rank for one year immediately prior to his retirement. Nothing in the statute indicates that the regular pension (as opposed to a disability pension) paid an electing policeman is to be computed in a way different from the pension paid to any other retiring policeman. Our interpretation also conforms to the pension computation for policemen who are not disabled; under Section 3 — 111 of the Illinois Pension Code, their pensions are also based on the salaries attached to their respective ranks for one year immediately prior to retirement.

The defendants argue that tire legislature would have required contribution of the plaintiff for the time he received disability payments if it intended our interpretation of the statute. If the legislature so intended, however, it would have so stated, as in the case of those who leave the force for military service. Nor do we find valid the defendants' contention that the statute as we interpret it is unconstitutional either as special legislation or as authorizing extra compensation for services previously rendered by a public servant. The statute simply places all retiring policemen on a par in computing the amount of their pensions, and the law was in full force and effect even before the plaintiff became disabled.

For the reasons we have outlined above, the judgment is affirmed.

Judgment affirmed.

GOLDBERG and BURMAN, JJ., concur.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ezell O. Jenkins, Defendant-Appellant.
    (No. 56814;
    First District (Second Division)
    February 27, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Michael Henshaw, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

      William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State’s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and Robert Best, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Defendant was charged with armed robbery, convicted by a jury and sentenced to serve 10 to 20 years. He appealed directly to the Supreme Court. Claiming that a substantial constitutional question was involved, defendant presented two issues. (1) Whether he was deprived of the right to call his wife as a witness in his defense. (2) Whether the trial court erred in admitting into evidence defendant’s oral confession without a prior determination that it was voluntary.

After briefs were filed, however, the case was transferred to this court for disposition. In this appeal, defendant does not question the sufficiency of the evidence that convicted him. Instead, he raises issues from two incidents that occurred during his trial. Therefore, except where necessary, we will not state the facts which led to defendant’s indictment. We proceed directly to the two incidents.

The first occurred at the beginning of defendant’s trial. After examining a witness, the State moved for exclusion of all witnesses from the courtroom. The motion was granted but defendant’s counsel asked that defendant’s wife be permitted to remain in the courtroom. The request was denied. A short time later, defendant’s wife returned to the courtroom and his counsel fold the court that she had refused to be a witness because she wanted to hear her husband’s trial. After an exchange between court and counsel, defendant’s wife remained in the courtroom and was not called as a defense witness.

Defendant contends that under the sixth amendment to the Federal constitution and article II, section 9 of the Illinois constitution, he had the right to call witnesses in his favor and the right to a public trial, one that allowed him to have his wife and relatives in the courtroom during his trial. To support his contention, defendant relies on the decisions in In re Oliver (1948), 333 U.S. 257, 92 L.Ed. 682, 68 S.Ct. 499; People v. Jelke (1954), 308 N.Y. 56, 123 N.E.2d 769, and State v. Jordan (1921), 57 Utah 612, 196 P. 565. Citing Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967, defendant argues that the order excluding witnesses compelled him to surrender one constitutional right in order to assert another: he was forced to surrender calling his wife as a witness in order to enjoy his right to have her present in court during his trial. Therefore, defendant attacks the order excluding witnesses and contends that it deprived him of the constitutional right to call his wife as a witness in his defense.

Ever since Daniel confounded the Elders by examining one out of the presence of the other and proving that they had given false testimony against Susanna, it has been thought prudent to exclude witnesses from the presence of each other before they testify. This prudence has evolved the rule that a trial court has the power to exclude witnesses during the trial of a case and to direct that they shall be examined out of the hearing of each other. (23 C.J.S. Criminal Law § 1010.) Exercise of this power does not infringe on a defendant’s right to a public trial. (People v. Hagan (1969), 24 N.Y.2d 395, 248 N.E.2d 588; 23 C.J.S. Criminal Law § 963(5).) In this State, consistent with this rule and the wisdom it reflects, the exclusion of witnesses is a matter within the sound discretion of the trial court; and exercise of such discretion will not be disturbed on appeal unless a clear abuse or prejudice to the defendant is shown. People v. Chennault, 24 Ill.2d 185, 187, 181 N.E.2d 74; People v. Marshall, 74 Ill.App.2d 472, 221 N.E.2d 128.

In this case, the trial court exercised its discretion and ordered the exclusion of all the witnesses who were going to testify. This order was proper. (See United States ex rel. Corby v. Conboy (S.D. N.Y. 1971), 337 F.Supp. 517; People v. Godsey, 334 Ill. 11, 16, 165 N.E. 178.) The order did not force defendant to surrender his right to call his wife as a witness in order that he could assert his right to have her present in the courtroom. (Taylor v. United States (9 Cir. 1967), 388 F.2d 786; see Annot, 14 A.L.R.Sd 16.) Therefore, we conclude that the order excluding witnesses did not deprive defendant of the right to call his wife as a witness in his defense.

The second incident occurred when the State called policeman Joseph Mullen as its last witness. Preliminary questions disclosed that at. about 3:00 A.M. of the morning that defendant was arrested, he had a conversation with Mullen in a Chicago police station. Mullen was asked about the conversation. Defendant’s counsel objected and the trial court sustained the objection with an admonition that the assistant State’s Attorney rephrase the question and lay the proper foundation. Defendant’s counsel then requested a hearing outside the jury’s presence. In a side-bar conference that followed, counsel stated the grounds for his objection. He said, “I will quote from ‘Miranda versus Arizona,’ which requires him to establish the voluntary nature of all constitutional rights before statement is admitted into evidence. The burden is on him [sic].” The trial judge said, “Overruled. You laid a proper foundation, the time and place. Proceed. The motion is denied.”

Then, in the presence of the jury, Mullen testified that before asking defendant questions concerning the armed robbery, he informed him of his constitutional rights. Mullen said he told defendant that he had the right to remain silent; that if he spoke or said anything, it could be used against him in a criminal prosecution; that he had the right to have a lawyer present and if he could not afford one, one would be appointed for him. Defendant, according to Mullen, manifested an understanding of the constitutional warnings. Mullen said that defendant then told him he had taken part in the armed robbery and gave the details of his participation.

After Mullen’s testimony, the State rested its case. Defendant’s counsel, having reserved the right to make an opening statement, told the jury that defendant was going to testify and tell of his participation in the armed robbery. But, as an affirmative defense, defendant was going to show that he was a narcotic addict who, at the time of the robbery, was under the influence of drugs that compelled him to participate in the crime. Defendant was called as his first witness and told the jury of his narcotic addiction and how he participated in the armed robbery. In addition, two of his sisters testified concerning his narcotic addiction. Then, after rebuttal and the State’s opening summation, defendant personally made the final defense argument to the jury. He again told what he did; and in describing the conduct of the persons who were robbed, he said, “[e]veryone started from the rear door. Customers and people that was — I was sticking the shop up — they started out the back door, so did I [sic].”

Defendant contends that the trial court committed error when, over his objection, it admitted the testimony of Mullen without requiring the State to prove, outside the jury’s presence, that the confession about which Mullen testified was voluntary and was obtained in compliance with Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Defendant argues that once he objected to Mullen’s testimony, the trial court had the duty to adjourn the trial and conduct a separate hearing to determine whether his confession was voluntary and was obtained under circumstances that respected his constitutional rights. The State, on the other hand, contends that defendant voluntarily testified in order to interpose the defense that he participated in the armed robbery under compulsion of narcotic addition. Therefore, since he reiterated to the jury what Mullen said was his confession, defendant was not prejudiced by Mullens testimony despite the objection that was made.

In People v. Jackson, 31 Ill.2d 408, 410, 202 N.E.2d 465 the Supreme Court held that a defendant’s objection to the admission in evidence of a confession on the ground that his constitutional rights were not explained to him, was sufficient to call for a hearing to determine whether the confession was voluntary. In People v. Mosley, 100 Ill.App.2d 361, 364, 241 N.E.2d 476, we held that when a defendant moves to suppress a confession on the ground that it was involuntary, the trial court must conduct a hearing in which the State must prove, by a preponderance of the evidence, that the confession was voluntary even if the defendant does not request a hearing. Therefore, we conclude that it was error for the trial court to overrule defendant’s objection to Mullen’s testimony without a hearing outside the jury’s presence concerning the voluntariness of his confession. We must decide, however, whether in this case the error was harmless. Defendant insists that the error has to be harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824; Harrington v. California (1969), 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726.

We bear in mind that defendant does not question the sufficiency of the prosecution’s evidence. He was arrésted near the scene of the robbery. On his person were found a gun, a police badge; and three victims of the robbery unhesitatingly identified him as the man who used the gun and badge to terrorize them. Defendant does not deny that before he confessed to Mullen he was informed of his constitutional rights. Nor does he claim that his confession was coerced by anyone. Moreover, defendant, of his own volition, insisted on talking to the jury in summation and, concerning the robbery, telling them that he “was sticking the shop up.” ■ V

The record clearly indicates that defendant was not compelled to testify because of the confession that Mullen described. (Compare Harrison v. United States (1968), 392 U.S. 219, 20 L.Ed.2d 1047, 88 S.Ct. 2008; Collins v. Brierley (W.D. Pa. 1971), 336 F. Stipp. 1024.) Defendant voluntarily took the witness stand in order to support his theory of defense; and in doing so, reiterated the substance of his confession. It has been held in this and in other jurisdictions that when a defendant takes the witness stand and reiterates under oath matters contained in a statement or confession he has given the police, he is not prejudiced by admission in evidence of that statement or confession' and cannot claim constitutional privileges he voluntarily waives by testifying. (People v. Coddington, 123 Ill.App.2d 351, 259 N.E.2d 382.) Therefore, we conclude that under the circumstances of this case, the error committed by the trial court in admitting evidence of defendant’s confession, without a determination of its voluntariness outside the jury’s presence, was harmless beyond a reasonable doubt. The judgment is affirmed.

Affirmed.

SCHWARTZ and McGLOON, JJ., concur.

       Without changing their meaning or importance, we have rephrased the issues and inverted the order in which they appear in defendant’s brief.

       In the Apocrypha, The Story of Susanna and the Elders is perhaps the first recorded instance of a motion to exclude witnesses. See May and Metzger, The Oxford Annotated Bible with the Apocrypha, p. 213 (Revised Standard Version 1965); Metzger, An Introduction to the Apocrypha, p. 107 (1957); London, The World of Law, Vol. I, p. 5 (1960); 6 Wigmore, Evidence § 1837 (3d ed.).

       For cases of other reviewing courts, see Sweeney v. United States (9 Cir. 1969), 408 F.2d 121; Chandler v. State (1968), 283 Ala. 29, 214 So.2d 306; Commonwealth v. Chase (1966), 350 Mass. 738, 217 N.E.2d 195; State v. McGee (Mo. 1969), 447 S.W.2d 270; Cooper v. State (Fla.App. 1972), 261 So.2d 859; State v. Fouquette (1950), 67 Nev. 505, 221 P.2d 404; Commonwealth v. Collins (1969), 436 Pa. 114, 259 A.2d 160; Miller v. State (Cr. App.Tenn. 1970), 452 S.W.2d 369; Evans v. State (Cr. App. Tex. 1972), 480 S.W.2d 387.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Booker Hanson, Defendant-Appellant.
    (No. 56311;
    First District (3rd Division)
    March 1, 1973.

      Thomas J. Grippando and Charles R. Staley, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

Booker Hanson was found guilty of theft (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)) and sentenced to jail for the term of six months. The evidence presented by the State at the non-jury trial consisted of the testimony of George Scanlon, the complainant, and a Chicago police officer. Hanson denied participation in the offense and claimed he was at home watching television; his mother corroborated his whereabouts.

Of the points raised on appeal, one is decisive: the contention that reversible error was committed when a police officer was permitted to testify, in contradiction to Scanlon, that Scanlon identified Hanson from a photograph as one of his three assailants.

Hanson, Robert Walton and David Blackwell were charged with stealing Scanlon’s money and were tried together. At a pretrial hearing on a motion to suppress identification, Scanlon testified that he was called to a police station to view suspects. As he stood in a hallway, Hanson, Walton and Blackwell were brought before him individually. He said that he was not sure of Walton and Blackwell but was of Hanson. The court reserved its ruling on the motion. At the trial the 60-year-old victim testified that he was employed by a liquor store and was depositing some trash in an alley container around 12:30 A.M. As he opened the lid, someone approached him from behind, twisted his arm and covered his face. He was thrown to the ground and one of three assailants took a key case and $12 from his pockets. He “got a look” from the distance of two and a half feet at the person who was holding him and he identified Hanson as that assailant. The other two men were not seen face to face; Scanlons opportunities for viewing them were limited to his observations as they fled down the alley. However, he described them as being heavier than himself, about five feet nine inches in height and having the same physical characteristics. He estimated the commission of the offense took one minute or a little longer. There was no testimony about the lighting conditions.

On cross-examination, Hanson counsel asked Scanlon about the police station identification:

“Q. You never saw this man, is that correct, before you were in the police station?
A. Oh, they had pictures of them.
Q. Police had photographs?
A. Yes.
Q. How many photographs?
A. There is two cards, one on each card.
Q. There were four photographs all together?
A. Two cards.
Q. How many of those did you identify?
A. Well, I picked the two out.
Q. Two out of four. All right. * *

On redirect examination the State pursued the subject and Scanlon pointed to Walton and Blackwell as the men whose pictures he picked out.

The arresting officer related the details concerning the police procedures. He testified that he showed Scanlon approximately seven pictures and the victim identified those of Hanson and Walton. On cross-examination the officer admitted that he showed the three defendants to Scanlon one at a time. He denied asking, “Is this the man who did it?” when Scanlon was confronted with each defendant.

The State rested its case and, pursuant to a motion for a directed finding, the court dismissed the charges again Walton and Blackwell. The motion was overruled in respect to Hanson, who thereupon presented evidence concerning his alibi.

Hanson’s conviction rests upon his identification by a single witness who saw him fleetingly in the middle of the night in an alley. There was no evidence concerning the alley’s illumination. Under these circumstances, where the possibility of a mistaken identification was so serious, it was very important that the witness’ identification be uninfluenced by post-arrest procedures and that the defendant’s trial be free of error.

There was no excuse for the one-on-one confrontation in this case and there was no justification for the officer’s testimony that Scanlon selected Hanson’s picture as one of the thieves. Testimony of this kind has been condemned repeatedly. In People v. Smith (1969), 105 Ill. App.2d 8, 245 N.E.2d 23, it was held to be one of the two errors which deprived the defendant of a fair trial. The prosecuting witness testified that after she was robbed the police showed her some pictures. An officer testified that she picked out a picture of the defendant. This court stated: "His testimony went far beyond hers and obviously was offered to strengthen the identification and to prove the truth of the matter asserted in his testimony, that is that Mrs. Mosely picked Smith out as the person who robbed her.” The same finding of prejudicial error was made in People v. Townsend (1969), 111 Ill.App.2d 316, 250 N.E.2d 169, where the complaining witness said she selected the picture of one of the two defendants and a police officer testified that she identified the pictures of both defendants. See also, People v. Harrison (1962), 25 Ill.2d 407,185 N.E.2d 244; People v. Wright (1965), 65 Ill.App.2d 23, 212 N.E.2d 126.

The State submits that the rule pronounced in the above cases should not be followed because the defendant did not object to the officer’s testimony and because the inquiry into the photographic identification was initiated by the defense. Plain errors affecting substantial rights may be considered on review although they were not brought to the attention of the trial court. (Ill. Rev. Stat. 1969, ch. 110A, par. 615(a).) Despite the fact that no objection was made to inadmissible testimony, this court will consider assignments of error which are so erroneous and prejudicial as to prevent the defendant from receiving a fair trial. (People v. Harrison; People v. Wright.) There have been instances where testimonial errors pertaining to identification have been held harmless but these occurred in cases in which the officer’s testimony was cumulative in that it merely reflected what had already been proven by competent testimony. People v. Campbell (1969), 113 Ill. App.2d 242, 252 N.E.2d 26; People v. James (1969), 109 Ill.App.2d 328, 248 N.E.2d 777; People v. Smith.

Hie inquiry into Scanlon’s selection of pictures was initiated by the defense, but his testimony that he picked out pictures other than Hanson’s was ehcited by the State. The State was responsible for this damaging admission, not the defense. In questioning the officer about the selection, the State was endeavoring to rehabilitate its case even though this meant impeaching its own witness. The officer’s testimony did not repeat what was already proven, it contradicted Scanlon’s testimony. It was not offered to rebut defense evidence, it was offered to bolster Scanlon’s in-court identification of the defendant.

The testimony was inadmissible and, in this case, extremely prejudicial. The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.

McNAMARA and McGLOON, JJ., concur.


author: PER CURIAM.

text:
    Ben Anderson, Plaintiff-Appellee, v. Safeway Insurance Company, Defendant-Appellant.
    (No. 56514;
    First District (3rd Division)
    March 1, 1973.
    Parrillo, Sims & Bresler, of Chicago, ( David J. Weiss, of counsel,) for appeHant.
    Harold S. Lee, of Chicago, for appellee.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    Stanley Stoller, Plaintiff-Appellant, v. Bruno Onuszko et al., Defendants-Appellees.
    (No. 56698;
    First District (3rd Division)
    March 1, 1973.
    Stanley Stoller, pro se.

    Stanley Werdell, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an action to enforce an attorney’s lien. (Ill. Rev. Stat. 1967, ch. 13, sec. 14.) The circuit court of Cook County, chancery division, dismissed plaintiff’s second amended complaint for failure to state a cause of action. The plaintiff appeals from the final order entered thereon.

The issue for our review is whether the plaintiff can maintain a suit to enforce his attorney’s lien based on a contingent fee contract which pertains to an action filed in the divorce division of the circuit court. The divorce action involved alimony, child support and property rights. Plaintiff contends that the trial court erred in dismissing his second amended complaint.

We affirm.

Plaintiff, Stanley Stoller, an attorney, entered into an “attorney’s contract” with Anna Onuszko, one of the defendants in this action. Under the terms of this contract, in consideration for plaintiff’s services in prosecuting claims against Josef Onuszko, Anna’s husband, Bruno Onuszko, their son, and Celeste Onuszko, Bruno’s wife, plaintiff was to receive 40 per cent of any recovery. The claims involved divorce, alimony, child support and property settlement.

Anna Onuszko, through the plaintiff, filed a one-count complaint in the divorce division of the circuit court entitled “Anna Onuszko v. Josef Onuszko, Bruno Onuszko, and Celeste Onuszko — Complaint for Divorce and Other Relief.” The complaint alleged desertion as grounds for the divorce. It also alleged that Bruno forced his mother, Anna, to convey to him her one-half interest in certain real property that she held as joint tenant with her husband. The prayer for relief requested, inter alia, that the court declare Bruno “trustee ex malificio” as to his mother’s one-half interest and that Bruno reconvey her interest in this property back to her. She further requested that Josefs one-half interest be used to satisfy any unpaid obligations of support and to satisfy counsel’s claim for attorney’s fees.

In his second amended complaint, Stoller alleged that he was “faithful and industrious and pursued the claims of Anna Onuszko with vigor.” His work on the divorce case culminated in an agreement reached at a pretrial hearing in which Bruno agreed to convey to his mother a fee simple interest in the real estate in question. Soon after this Anna discharged the plaintiff as her attorney without any fault on his part, and the conveyance to her never took place. On Anna’s motion, filed by her new counsel, the trial court dismissed the divorce case.

Plaintiff served notice of attorney’s lien on Josef, Bruno and Celeste Onuszko. He contends that attempts were made to defeat his lien by a conveyance of the real property to a trustee, Lucie Onuszko, Anna’s daughter. Plaintiff requests in his prayer for relief that the court specifically enforce the contingent fee contract and that he received an undivided 40 per cent interest in the real property, free and clear of all liens after November 8, 1966. Plaintiff insists that if Anna had not discharged him she would have acquired real estate, past due support, attorney’s fees and costs worth $41,250 through his efforts.

It is against public policy for attorneys to enter into contingent •fee contracts in divorce actions. (In re Fisher (1958), 15 Ill.2d 139, 153 N.E.2d 832.) Plaintiff cites Warner v. Basten (1969), 118 Ill.App.2d 419, 255 N.E.2d 72, for the propositions that contingent fee contracts are valid, that when an attorney is wrongfuHy discharged he may receive compensation according to the terms of the contract, and that a contingent fee of 40 per cent of any recovery is fair and reasonable. Warner is not applicable to the facts in the instant case. Warner was a personal injury action in which the attorney was discharged without cause after he had investigated the case. The contract called for 25 per cent of any settlement and 33 per cent of any judgment. The case was settled. In his suit to enforce his attorney’s lien, the appellate court affirmed the trial court’s award of 25 per cent of the settlement.

Zagar v. Zagar (1965), 56 Ill.App.2d 175, 205 N.E.2d 754, which the plaintiff cites, upheld the validity of a contingent fee contract for 50 per cent of collected arrearages under a separate maintenance decree. Because the contract involved only arrearages, the court’s decision did not change the policy enunciated in Fisher, and the case is : therefore distinguishable from the instant case.

We also find fault with the plaintiffs úse of the Attorney’s Lien Act in an attempt to enforce this void and unenforceable contract. The Attorney’s Lien Act has no application to divorce suits. (Pressney v. Pressney (1950), 339 Ill.App. 371, 90 N.E.2d 119; Thoresen v. Thoresen (1937), 293 Ill.App. 168, 12 N.E.2d 28.) Plaintiff relies on Rosmanitz v. Rosmanitz (1969), 110 Ill.App.2d 349, 249 N.E.2d 153, in which the court held that an ■ attorney’s hen could attach to real estate which was the subject matter of one count of a two-count complaint. Although the other count was for separate maintenance, the court decided this would not be a bar to the enforcement of plaintiff’s lien. In the instant case, plaintiff argues that he lumped two causes of action in One count and that his hen attached to the real estate which he alleges is the subject matter of one of the causes of action.

Plaintiffs argument as to the propriety of his lien • is of no avail, because ■ he seeks through its use to enforce a void and unenforceable contract of employment. We will not enforce an- attorney’s hen predicated on an invalid or unlawful contract of employment. (Cupp v. Chicago, R.I. & P.R. Co. (N.D. Ill. 1949), 87 F.Supp. 565.) In Rosmanitz the attorney used the hen to recover the value of his services. Rosmanitz is .distinguishable.

For the above reasons, the order of the circuit court of Cook County is affirmed. ,

Order affirmed.

DEMPSEY, P. J., and McNAMARA, J., contiur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Ernest Ramey, Petitioner-Appellant.
    (No. 57076;
    First District (3rd Division)
    March 1, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (John E. Hughes and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Albert Rosendahl, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Judith A. Schultz, Defendant-Appellant.
    (No. 57528;
    First District (3rd Division)
    March 1, 1973.
    Meyer M. Gilbert and Frederick F. Cohn, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (William D. Wolter, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

In a non-jury trial, Judith Schultz was found guilty of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 501) and final $100. The only issue on appeal is whether the evidence established her guilt beyond a reasonable doubt.

Miss Schultz, a nurse, finished her day’s work at the nursing home where she was employed at 11:00 P.M. She drove two fellow-employees to a bus stop, dropped them off about 11:10 and continued on her way home. At 11:25 she was arrested for drunken driving.

The arresting officer testified that at approximately 11:15 P.M. he was informed of a traffic accident in the 3900 block of Lawrence Avenue, Chicago. He arrived at the scene about 11:25 and observed Miss Schultz sitting in her auto. He noticed a laceration on her left leg and a moderate odor of alcohol on her breath. He asked, “Have you been drinking?” and she answered, “Yes.” She said she had started to drink at 11:00 P.M. and had stopped at 11:30. He asked her how the accident happened and she replied that she lost control of her auto and hit a parked car. However, when called in rebuttal, the officer said that she had replied she was driving on the wrong side of the street and hit a car head-on.

The officer testified that she was dressed in a nurse’s uniform and that her clothing was orderly, her attitude cooperative and her behavior normal. He said, however, that her face was pale, her eyes were bloodshot, her speech was slurred and that she needed assistance in walking because she staggered and swayed. She declined medical aid and accompanied him to a police station in his car.

At the station she said she had not been injured but she complained of being ill. She was subjected to the usual tests for sobriety and, according to the officer, she failed all of them. He testified that, in his opinion, she was under the influence of intoxicating liquor.

Miss Schultz testified that the two girls got out of her auto near Peterson and Caldwell Avenues, an area with which she was not familiar. She got lost on the way to her home, observed a car with very bright lights coming on the wrong side of the road and “after that I don’t know what happened.” She vaguely remembered getting into a police car but did not remember talking to an officer, or anything else until she arrived home. She denied drinking any intoxicating beverage while at work or prior to the accident. She had worked at the nursing home from 2:30 P.M. until 11:00 P.M. During this period she had treated and bathed bedridden patients from 10 to 15 times and after she finished with each one she washed her hands with alcohol. About 5 minutes before leaving work she vigorously washed her arms and hands, from shoulders to fingertips, with alcohol. Besides the laceration on her left leg, the left side of her head was injured and her right ankle was sprained. The following day x-rays were taken of her skull and right leg and medicine was prescribed. Her testimony was corroborated by her time card at the nursing home and by one of the employees whom she drove to the bus stop. This girl washed up with her just prior to leaving. She stated that she did not see Miss Schultz drink any alcoholic beverage during her hours of employment, that her driving was normal and that she was not under the influence of liquor when they left each other.

The defendant’s roommate, who had been called to the police station, arrived there about 12:30 A.M. She said she found her friend dazed, confused and disoriented. She complained of headache and pain in her right leg. There was no odor of alcohol on her breath, the only noticeable odor about her person was medicinal. She observed swelling on her roommate’s right leg and she limped for several days.

The officer who arrested the defendant was on the police force for 4 years and his experiences included the observation of 50 persons under the influence of liquor; Nevertheless, his opinion as to her sobriety, and his unsupported testimony, are insufficient to overcome the doubts raised by the facts and circumstances in evidence and by the corroborated testimony of the defendant. The odor which the officer noticed was explained by the defendant having washed herself with alcohol. Her response to his question: “Have you been drinking?” (“Yes, 11:00 to 11:30”) was, according to the officer’s own testimony, factually impossible. He heard of the accident about 11:15 and arrested her at 11:25. Her response might be explained only if, in her dazed condition, she understood the question to have been, “Have you been driving?” Her statement that she had not been injured was obviously inaccurate. Her left leg was cut, her right ankle was sprained, her head was hurt and at the station she complained of illness. Her swaying and. staggering could have resulted from her loss of consciousness and her head and leg injuries. There was no evidence, independent of the. policeman’s testimony, that she had anything to drink; minutes before the accident she had driven her car normally and had given no indication of intoxication. Her clothing was neat and her demeanor before and after her arrest was polite and cooperative.

The defendant’s guilt was not proven beyond a reasonable doubt and her conviction will be reversed.

Judgment reversed.

McNAMARA and McGLOON, JJ., concur.


author: Mr. JUSTICE ENGLISH

text:
    Louis Gelsumino et al., Plaintiffs-Appellants, v. E. W. Bliss Company, a foreign corporation, et al., Defendants-Appellees.
    (No. 54627;
    First District (5th Division)
    March 2, 1973.

      Kenneth S. Lewis, of Chicago, (Sidney Z. Karasik, Stuart N. Litwin, and Gary E. Dienstag, of counsel,) for appellants.
    Caryl P. Bonotto and John M. O’Connor, Jr., both of Kirkland & Ellis, of Chicago, for appellees.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

By their amended complaint, founded on theories of negligence and strict liability, plaintiffs sued for the recovery of damages for personal injuries sustained in a punch press accident and for loss of consortium. When plaintiffs refused to settle the case at a pretrial conference, the pretrial judge instructed both defendants to file motions for summary judgment which were subsequently filed and granted. Plaintiffs now appeal, contending that tire trial court erred when it granted the motions for summary judgment, because the pleadings, motions, supporting affidavits, answers and supporting counteraffidavits, depositions and exhibits disclosed that there were genuine issues of material fact to be resolved by the trier of fact. From those documents the following facts emerge:

In 1962, plaintiff’s [Louis’] employer, Diebel Manufacturing Company, purchased a punch press from defendant E. W. Bliss Company, its manufacturer. The purchase order specified the inclusion of a foot switch, a standard extra cost item. This switch was supplied by defendant Allen-Bradley Company.

The machine ordered by Diebel was equipped with a two-button safety feature which made it impossible to activate the press cycle without requiring the use of both hands to depress both buttons, thereby keeping the hands of the press operator out of the die area when the press cycle started. However, if the selector switch on the press was set for foot operation, then the hand button safety feature was made inoperative.

The foot pedal consisted of a treadle with a protective metal plate across the top, but open on both sides and in the front. It could be placed anywhere on tire floor within a certain radial distance from the press and was connected to the press through a cable.

On October 22, 1965, plaintiff turned on the press punch into which he placed a die. He set the selector switch to foot pedal operation, ran some parts, and took them to be inspected. After he received some advice, he lengthened the stroke of the ram and punched out a few more pieces. As he was taking these latter samples to be inspected, he stepped in some oil and slipped. As he fell, he put his hand in the die, and, at the same time, accidentally triggered the foot pedal from the side with his foot. His injuries included the loss of his right thumb and two fingers, fracture of the other two fingers of his right hand, limitation of motion of his right wrist and shoulder, and skin grafts covering two thirds of the palm of his right hand.

Count I of plaintiffs’ amended complaint, based on a strict liability theory, alleged that defendant Bliss improperly designed, manufactured and equipped the punch press in that it was equipped with an unsafe foot pedal which was only partially guarded; that it was sold without proper warnings; and that tire press thus presented an “unreasonably dangerous condition” which was the proximate cause of his injuries.

Count II, based on a negligence theory, alleged that defendant Bliss negligently designed, manufactured and equipped the punch press in the manner set forth in Count I; that such negligence was the proximate cause of plaintiff’s injuries; and that plaintiff exercised ordinary care for his own safety in its operation.

Counts III and IV, based on strict liability and negligence, respectively, were directed toward defendant Allen-Bradley, which was alleged to have improperly or negligently designed and manufactured the foot switch in that the switch was not sufficiently encased to prevent against accidental tripping, thus presenting an unreasonably dangerous condition which was the proximate cause of the injuries to plaintiff.

In all Counts, plaintiff Louis Gelsumino sought damages for his personal injuries, and his wife sought recovery for loss of her husband’s consortium.

Both defendants denied all material allegations of the original complaint, but neither filed an answer to the amended complaint.

The cause was set for pretrial conference with the order that all discovery be completed by that date. At that conference, the judge suggested that plaintiffs accept a settlement since the Bliss press and Allen-Bradley foot pedal were in accordance with the “state of the art.” When counsel for plaintiffs refused a settlement, the judge directed both defendants to file motions for summary judgment.

Defendants’ separate motions and the attached supportive affidavits and exhibits both claimed in similar terms that: (1) the proximate cause of plaintiff’s injury was his slipping on the oil on the floor, not any defect in the press or the pedal; (2) the foot pedal was not unreasonably dangerous or defective; and (3) the guard on the foot pedal was within the “state of the art” for foot pedal guards in 1962.

Plaintiffs filed their answers to the motions, arguing that the cause of plaintiff’s injury was not his slipping and falling, but, rather, the unreasonably dangerous condition of the press and foot pedal, and that neither the press nor the pedal conformed to the “state of the art” as it existed in 1962. Plaintiffs contended that there were genuine issues as to these material facts and asked that defendants’ motions for summary judgment be denied. The court, however, found that there were no such issues of fact, and that each defendant was entitled to summary judgment as a matter of law. Both defendants’ motions were allowed and this appeal followed.

Under Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 57), a summary judgment is to be granted only where the documents to be considered show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In American Nat. Bank & Trust Co. v. Lembessis, 116 Ill.App.2d 5, 10, 253 N.E.2d 126, 128, the court stated:

“The right to summary judgment is established by statute (Ill Rev Stats 1967, c 110, § 57) and the primary function of the procedure is to enable a court to determine whether there is any issue of fact to be tried by a jury. Craig v. Launer, 346 Ill App 234, 104 NE2d 830 (1952). If the pleadings, affidavits and exhibits show that there is a genuine issue as to any material fact,summary judgment must not be granted. Reed v. Albanese, 78 Ill App2d 53, 223 NE2d 419 (1966).”

See also Borgeson v. Fairhaven Christian Home, 1 Ill.App.3d 323, 326, 272 N.E.2d 436, 438.

Plaintiffs contend that the record presents at least two genuine issues of material fact: (1) whether the press and foot pedal presented an unreasonably dangerous condition which was the proximate cause of plaintiff’s injuries; and (2) whether the press and the foot pedal conformed to the state of the art existing in 1962.

The proximate cause of an injury is usually a question of fact to be determined by a jury and can only be raised as a question of law when the facts are undisputed and when there can be no difference in judgment of reasonable men as to inferences to be drawn therefrom (Arden v. Chicago Transit Authority, 89 Ill.App.2d 214, 222, 232 N.E.2d 501, 506.) Even conceding defendants’ point that plaintiff slipped and, fell, the issue of the proximate cause of plaintiff’s injury is still unresolved. Proximate cause is essentially a question of foreseeability, and, for plaintiff to recover, his injury must be the natural and probable result of a negligent act and be of such a nature that an ordinarily prudent person should have foreseen as likely to result. (Donehue v. Duvall, 41 Ill.2d 377, 379, 243 N.E.2d 222, 223.) In the instant case, it should have been for the jury to decide whether it was foreseeable to either defendant that the foot pedal might be accidentally triggered from the side, as it was, and so cause injury to the press operator.

On the basis of the various documents filed by defendants, they contend that the foot pedal was not unreasonably dangerous because its design conformed to the “state of the art” as it existed at the time of its design and manufacture. Plaintiffs question whether defendants actually showed conformity to the state of the art, but we do not resolve that issue since we find that the “state of the art” defense is irrelevant with respect to the two strict liability counts and inconclusive with respect to the two negligence counts.

In Cunningham v. MacNeal Memorial Hosp., 47 Ill.2d 443, 266 N.E.2d 897, the pleadings disclosed that plaintiff contracted serum hepatitis from the blood supplied to her by defendant-hospital and then sued for damages, contending that the blood supplied was in an unreasonably dangerous condition at the time it left the hands of defendant. Defendant answered that the state of medical science was such that there was absolutely no means by which the existence of serum hepatitis virus could be detected in whole blood, and that it should not be held strictly liable for any injury caused thereby. The court stated that whether or not defendant could, even theoretically, ascertain the existence of serum hepatitis virus in whole blood would be of no moment, and that a ruling in defendant’s favor on this issue would be inconsistent with the concept of strict liability. The court explained at p. 453:

“To allow a defense to strict liability on the ground that there is no way, either practical or theoretical, for a defendant to ascertain the existence of impurities in his product would be to emasculate the doctrine and in a very real sense would signal a return to a negligence theory.”

The test, then, for imposing strict liability, is whether the product was unreasonably dangerous despite the fact that the seller exercised all possible care in the preparation and sale of his product. American Law Institute’s Restatement of Torts, 2d Edition, Sec. 402A.

When the Cunningham, court held the defendant hospital liable on a strict liability theory, even though there were documents allegedly-showing that it had done everything possible to make its product safe, the court, in effect, ruled that a “state of the art” defense was inapplicable in a strict liability case. Therefore, neither can defendants in the instant case avoid tire issue of strict liabilty by attempting to show merely that they had done what the rest of their industry had done to make their products safe. This conclusion is not to be interpreted as our belief that the foot pedal was, in fact, unreasonably dangerous, that being, in our opinion, a genuine, material issue of fact in this case. But we do say that conformity to the state of the art is not a defense to a claim involving an unreasonably dangerous product.

As to the negligence counts also, conformity to the state of the art is not conclusive of non-negligence since it is merely to be considered by the jury along with whatever other evidence may be presented in detennining that fact. See Moren v. Samuel M. Langston Co., 96 Ill. App.2d 133, 145-146, 237 N.E.2d 759, 765, where the court stated that “Custom is relevant in determining the standard of care because it illustrates what is feasible, it suggests a body of knowledge of which the defendant should be aware, and it warns of the possibility of far-reaching consequences if a higher standard is required. * * * But custom should never be conclusive.” The court went on to quote Judge Learned Hand when he stated in The T. J. Hopper, 60 F.2d 737, 740:

“Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”

See also Rivera v. Roclcford Machine v. Tool Co., 1 Ill.App.3d 641, 274 N.E.2d 828.

Accordingly, we conclude that the trial court erred in granting the motions for summary judgment.

The judgment of the trial court is reversed and the cause is remanded with directions to proceed as though defendants’ motions for summary judgment had been denied.

Reversed and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.


text:
    Guy Thomas, Plaintiff-Appellant, v. Paul W. Pretzel, as Exr. of the Estate of Helen M. Norris, Deceased, et al., Defendants-Appellants.
    (No. 56213;
    First District (5th Division)
    March 2, 1973.
    Samuel Nineberg, of Chicago, for appellant.
    Louis E. Bellande, of Pretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellee Paul W. Pretzel.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie L. Davis, Defendant-Appellant.
    (No. 56536;
    First District (5th Division)
    March 2, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Thaddeus L. Kowalski and Ronald P. Katz, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Richard Pezzopane, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Jerome Harris, Petitioner-Appellant.
    (No. 56755;
    First District (5th Division)
    March 2, 1973.
    Saul R. Leibowitz, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Ronald F. Neville, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE ENGLISH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Adams, Defendant-Appellant.
    (No. 57062;
    First District (5th Division)
    March 2, 1973.
    Robert H. Aronson, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE ENGLISH.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Clay Ponder, Defendant-Appellant.
    (No. 57073;
    First District (5th Division)
    March 2, 1973.

      John J. Connors, of Arlington Heights, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

This is an appeal from the denal of defendant’s Amended Post-Conviction Petition which alleged that his pleas of guilty had been induced by his mother after the trial judge had influenced her to convince her son to plead guilty.

On July 10, 1962, under indictment for two different murders and a robbery, defendant changed his pleas from not guilty to guilty to the lesser included offenses of voluntary manslaughter and to the robbery charge. He was represented at this time by John Biggs, a privately retained counsel. The court accepted the guilty pleas and on July 23, 1962, sentenced defendant to concurrent terms of 2 to 20 years on all three indictments.

On December 9, 1966, defendant filed a pro se petition under the Post-Conviction Act (Ill. Rev. Stat. 1965, ch. 38, par. 122), alleging several violations of his constitutional rights. The public defender filed his appearance on behalf of defendant. On March 16, 1967, this petition was denied after an evidentiary hearing, and the public defender filed a timely Notice of Appeal to the Supreme Court. Almost two years later, the public defender and a subsequently appointed counsel both withdrew as defense counsel, and the next appointed attorney filed a successful motion to remand the cause to the trial court with leave to amend the petition.

On October 29, 1970, an evidentiary hearing was held on defendant’s Amended Petition which raised two issues: (1) defendant’s pleas of guilty were coerced and were, therefore, obtained in violation of his due process rights; and (2) the delay in adjudicating defendant’s post-conviction claims was a denial of his due process rights. At this hearing, testimony was taken of defendant, defendant’s mother, and his original attorney, Mr. Biggs.

Defendant testified that on July 10, 1962, he appeared in court and told his attorney that he wanted to plead not guilty. His attorney informed the judge of defendant’s intention, and the judge then beckoned defendant’s mother out of the public part of the courtroom up to the bench. He heard the judge tell his mother that he wanted to give defendant a break because of his youth (18 years old) and that she should speak to her son. The judge sent defendant, his attorney, and his mother with a bailiff to the jury room so that they could have a private discussion. His attorney told him that since his alibi was weak and a co-defendant was going to testify against him, his case didn’t look too good and that it would be better for him to plead guilty. His mother told him that she was being harassed at home by the police and that he should go ahead and plead guilty because she had talked with the judge and believed he would be lenient. However, defendant remained firm in his intent to plead not guilty.

The three of them returned to the courtroom and defendant’s mother, his attorney, and the attorneys for his co-defendants were standing before the bench when Mr. Biggs told the judge of the outcome of the discussion. He heard the judge again tell his mother that he didn’t want to be harsh because defendant was young and had a chance to be rehabilitated. The judge sent them back to the jury room, but this second time the attorneys for the co-defendants were present, also. These other attorneys told defendant that they had handled similar cases and that a 40-to-60-year sentence was a good deal. When defendant told them he “wasn’t going to take that,” they “offered” a l4-to-25-year sentence. He again refused, but said he would accept a l-to-10-year term. When they said that a 20-year sentence with a 2- or 3-year minimum was the best he could do, defendant replied that he wouldn’t accept it because they had no authority to offer it. He said he might accept it if the judge would give him some assurance that the 2- or 3-to-20-year term was all he would get. His mother again tried to convince him to plead guilty, but he refused. One of the co-defendant’s attorneys also tried to have defendant sign a jury waiver, but he refused to do that, also.

They all returned to open court, and when the judge was informed that defendant still intended to plead not guilty, he spoke again with defendant’s mother, saying, “Lady, I am trying to give this guy a chance.” This time he sent the state’s attorney to the jury room along with all the others who had been present at the previous discussions. The state’s attorney told defendant that if he pleaded guilty, the judge would sentence him to 20 years with a 2- or 3-year minimum. Defendant’s mother was almost hysterical and tried very hard to induce him to plead guilty. Everyone seemed to be talking at the same time, and it was hard for defendant to distinguish one speaker from another.

They returned to court for the last time, and the trial judge explained to defendant that he had the right to be tried by a jury. Defendant orally requested a bench trial, but he never signed a jury waiver. When defendant made a motion to change his pleas from not guilty to guilty to the reduced charges of voluntary manslaughter on the murder charges, the judge informed him of the possible penalty and asked him if he persisted in his guilty pleas. When defendant responded affirmatively, the judge asked him if he was pleading guilty because he was, in fact, guilty. When defendant again replied affirmatively, the court accepted the pleas. The court went through a similar procedure when defendant entered his guilty plea to the robbery charge. The state recommended a 10-to-20-year sentence, but the court sentenced defendant to a term of 2 to 20 years.

Defendant was silent throughout the whole procedure from the time the court admonished him as to the consequences of a guilty plea because everyone had told him to plead guilty and then say nothing. After he was sentenced, he complained to his attorney about the fact that the state’s attorney had told him he would recommend a 2-or-3-year minimum but then had actually recommended a 10-year minimum. His attorney, however, told him not to worry because he was going to appeal the conviction.

Defendant went to the penitentiary and did not complain about his conviction until four years later when he filed a Post-Conviction Petition.

Mr. Biggs testified that on July 10, 1962, he explained to defendant that he didn’t think defendant could be acquitted on all three charges, and that he would see what kind of disposition he could get. He had a conference with the judge and the state’s attorney, at which time the judge agreed to go along with the state’s prior recommendation of 5 to 20 years. He explained the possible penalties involved to defendant, telling him that one of the alternatives was the death penalty, but that the state’s recommendation would be 5 to 20 years if he pleaded guilty to a reduced charge of voluntary manslaughter. He then spoke with defendant’s mother about what the state had recommended, and asked her to speak with her son. He was in the conference room when defendant and his mother were arguing about the plea, and he heard defendant insist that he wanted to go to trial. No one else was present at the conference. He did not remember three such conferences, but he believed that there could have been a second one. He told defendant that he was willing to go to trial, and at that point, defendant changed his mind and decided to plead guilty. He did not recall seeing the judge speak with defendant’s mother; he did not coerce defendant’s mother to speak with defendant; and he did not force defendant to plead guilty.

From July 10, 1962, until the time of the evidentiary hearing on the amended petition, defendant made no complaints to him concerning his conviction or sentence.

Sally Johnson, defendant’s mother, testified that she was present on July 10, 1962, when her son pleaded guilty to several charges. The judge asked her to step up to the bench and told her to first speak with the lawyers and see what could be worked out and then to speak to her son. At the conference with the attorneys, the state’s attorney told her that he would combine all the charges into one and that her son would be home in at least a year’s time if she could talk him into pleading guilty. No one ever mentioned a specific sentence to her. She spoke to her son and asked him to change his plea. At first he refused, but then he changed his mind and said that he would do it for her. Mr. Biggs and the state’s attorney were present at this conference. They all came back to the courtroom, and Mr. Biggs infonned the court that defendant would plead guilty.

The stipulated testimony of Mr. Tucker, the attorney for one of the co-defendants, was that there had been a conversation between himself and all the defendants in the case, including defendant Ponder, during which time Mr. Biggs was also present. However, he did not remember whether the conference took place on the day defendant pleaded guilty or whether defendant’s mother had been present. He never had a conference alone with defendant or with defendant and his mother. He did not recollect the judge speaking with defendant’s mother with respect to defendant’s entering a guilty plea.

The court was informed, by counsel for petitioner, that Mr. Gill, the prosecutor at the time defendant had pleaded guilty, remembered something about those proceedings, but did not remember enough to be able to swear to anything as to what transpired at that time.

During the hearing on defendant’s Post-Conviction Petition, the trial judge stated that although the issue could be presented on appeal, any testimony or argument with respect to the second point raised in defendant’s amended petition, that of the violation of defendant’s due process rights due to the lengthy delay in adjudicating his post-conviction claims, would not be considered. The judge refused to allow defendant to testify as to the reason he changed his plea or what effect his mother’s persuasion had on him, and refused to allow defendant’s mother to testify as to what effect her conversation with the judge had upon her.

At the end of the testimony and after closing arguments, the court concluded that defendant had known what he was charged with, had known the nature of the charges, and had received a sentence which was, in fact, less than that which the state had recommended. Finding that defendant had received a fair trial, the court denied defendant’s Amended Post-Conviction Petition, and defendant now appeals from that decision.

Defendant’s Amended Post-Conviction Petition alleged that his due process rights had been violated because his guilty pleas had been coerced, being imposed upon Mm by Ms mother at the insistence of the trial judge. Defendant now argues that these allegations had been proved at the hearing on his petition, and that the trial judge erred in his decision.

We find that there has been no deprivation of defendant’s constitutional rights. At the hearing on his petition, defendant’s own testimony was that three "offers” had been made to him — 40 to 60 years, 14 to 25 years, and 2 or 3 to 20 years. He refused the first two offers, but told Ms attorney that he might accept the third if the judge would give him some assurance that the sentence would actually be 2 to 20 years. After such assurance was given to Mm by the state’s attorney, defendant changed Ms pleas, and the court accepted them only after defendant replied that he was pleading guilty because he was, in fact, guilty of the offenses charged.

Despite any discussions with his mother or any attorneys, we see no coercion in tMs situation, only an attempt by defendant to get the best possible deal for himself. He had been advised that a co-defendant was going to testify against him and that his conviction seemed likely. According to defendant’s testimony, he thought he was going to be sentenced to a term of 2 to 20 years, and according to Mr. Biggs’ testimony, defendant was told that the state’s recommendation would be 5 to 20 years. Since defendant was sentenced to 2 to 20 years, he either received the sentence he expected or a lesser one. In any event, the issue of whether defendant’s guilty pleas were coerced rested upon the credibility of the witnesses, and this issue was a matter for the determination of the trier of fact. (People v. Bratu, 46 Ill.2d 143, 262 N.E.2d 921.) Defendant has not established that the trial court’s decision was manifestly erroneous, and we will not, therefore, disturb that decision on review. People v. Watson, 50 Ill.2d 234, 278 N.E.2d 79.

Defendant also urges that the trial judge’s initiation of the plea-bargaining process was a flagrant form of judicial coercion, in violation of his constitutional rights. Although Supreme Court Rule 402(d)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(d)(1)) now provides that “the trial judge shall not initiate plea discussions,” such rule was not in effect at the time in question, and, therefore, is not applicable.

Defendant lastly contends that the trial court erred in refusing to permit defendant to testify as to why he pleaded guilty or to the influence his mother had upon him. We find no error in this evidentiary ruling. The trial court allowed defendant to testify as to the facts surrounding his pleas, that he had three conferences during which his mother and others tried to convince him to plead guilty, and defendant’s attorney was allowed to argue from these facts that defendant’s mother had had a persuasive effect on defendant’s decision to change his plea. Therefore, despite the court’s exclusion of any conclusions on the part of defendant or his mother, the court did allow and take into consideration evidence and argument specifically on point with the allegations in defendant’s petition.

The judgment of the circuit court is affirmed.

Affirmed.

DRUCKER, P. J., and LORENZ, J., concur.


text:
    Doetsch Bros. Co., Plaintiff-Appellant, v. Budron Excavating Co., Defendant-Appellee.
    (No. 57180;
    First District (5th Division)
    March 2, 1973.
    George R. Lyon, of Chicago, for appellant.
    Theodore G. Gertz, of Pretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elbert Kite, Defendant-Appellant.
    (No. 57242;
    First District (5th Division)
    March 2, 1973.

      James J. Doherty, Public Defender, of Chicago, (Stanley Sacks, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Frederic I. Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES ALLEGEDLY CHARGED

Unlawful use of weapsons (carrying a firearm concealed on his person). Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4). Failure to carry a firearm owner’s identification card. Ill. Rev. Stat. 1971, ch. 38, par. 83— 2(a).

JUDGMENTS

After a bench trial on pleas of not guilty, there was a finding of guilty on both charges, and defendant was sentenced to six months on the first charge and admitted to probation for one year on the second.

ISSUE ON APPEAL

The complaint which the state contends charged defendant with unlawful use of weapons was legally insufficient in that it did not charge a criminal offense.

OPINION

The complaint reads as follows:

Defendant contends that since a line ran through the words “Smith & Wesson 38 Cal. revolver Ser. 2744,” such words were deleted from the complaint, and therefore the complaint, not having alleged an essential element of the offense, was subject to a motion to dismiss. Ill. Rev. Stat. 1971, ch. 38, par. 114r-1(a)(8).

The State argues that the. words, “Smith & Wesson * * *” should not be considered as deleted because they were not meant to be deleted; and that defendant, who appeared pro se, answered in the affirmative when the court asked him if he would stipulate that “there was a gun involved.” A close look at the complaint, the state maintains, reveals that deletions are made by X’ing out the inappropriate word or words, as was the case with the word, “describe,” and that the line complained of was not a deletion line, but a line already appearing on the printed complaint form before the words, “Smith & Wesson # * *” were

typed in. Further, if defendant thought the complaint legally insufficient, it was his obligation to object by making a motion to quash the complaint at trial; and since he made no such motion at the appropriate time, the state concludes, he waived the issue and cannot now raise it on appeal.

The body of the complaint form is composed of a series of regularly spaced lines. The two addresses on the form, “355 E. 75th St.” and “834 E. 75th St.,” although appearing to be lined-out, were obviously typed over these printed form lines. The line complained of, however, was not an originally printed form fine, as it clearly appears to us that the lines in question were typed onto the form midway between other evenly spaced printed lines, running only part way between the left and right margins. This is further evidenced by the fact that punctuation marks do not break up any of the printed form lines as do the comma and period with respect to the lines in question. We find no factual justification for the state’s contention.

The words in question, then, must be considered as having been deleted, and the complaint must be read as alleging that defendant “committed the offense of UNLAWFUL USE WEAPON in that he knowingly carried concealed -- in violation of Chapter 38, Section 24— la4.”

Section 111 — 3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. Ill — 3(a)) sets out the five requirements necessary for a valid charge, one of which is “setting forth the nature and elements of the offense charged.” Since Section 24 — 1(a) (4) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)) specifies the concealment of a weapon as an element of the crime of unlawful use of weapons, and the complaint does not state what, if anything, defendant knowingly carried concealed, it fails to state all the elements of an offense. The complaint, therefore, is void and is subject to dismissal pursuant to Section 114 — 1(a)(8) of the Code of Criminal Procedure. Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(a)(8); People v. Heard, 47 Ill.2d 501, 505, 266 N.E.2d 340, 342-343; People v. Billingsley, 67 Ill.App.2d 292, 299, 213 N.E.2d 765, 769. The trial court, never having acquired jurisdiction of the subject matter, had no authority to enter the judgment it did in this case, and for that reason, too, the complaint is subject to dismissal. Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(a)(6).

Although defendant did not make a motion to dismiss the complaint at trial, he is not precluded from doing so at this time, since Section 114 — 1(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(b)) specifically provides that motions to dismiss a criminal complaint based upon the courts lack of jurisdiction (par. 114— 1(a)(6)) or on the point that no offense has been charged (par. 114— 1(a)(8)), cannot be considered as waived, even if not filed within a reasonable time. People v. Billingsley, 67 Ill.App.2d 292, 300, 213 N.E.2d 765, 769-770; People v. Petropoulos, 59 Ill.App.2d 298, 324, 208 N.E.2d 323, 337, affirmed 34 Ill.2d 179, 214 N.E.2d 765.

The State also contends that the missing information could have been supplied by a Bill of Particulars and since defendant did not ask for such, he cannot now ask for the dismissal of the complaint, citing Ill. Rev. Stat. 1971, ch. 38, par. Ill — 6. However, since a Bill of Particulars cannot be used to cure a void charge, this section applies only if the original complaint has charged an offense in accordance with the provisions of Section 111 — 3 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, par. 111 — 3; People v. Blanchett, 33 Ill.2d 527, 535, 212 N.E.2d 97, 101, on remand 73 Ill.App.2d 91, 218 N.E.2d 491.) Since we have already decided that the complaint did not comply with that statute, the state’s argument on this point must also fall.

Where a conviction rests upon a fatally defective complaint, as is the case here, it will be reversed without remand. People v. Leach, 3 Ill.App.3d 389, 393, 279 N.E.2d 450, 452.

The judgment on the charge of unlawful use of weapons is reversed. The judgment on the charge of failing to carry a firearm owner’s identification card is affirmed.

Reversed in part, affirmed in part.

DRUCKER, P. J., and LORENZ, J., concur.

       Defendant has not raised any question in this court as to the judgment entered pn the second charge.