author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Alan C. Terrill, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, and The Catholic Bishop of Chicago, a Corporation Sole, and St. John De La Salle Parish, Defendants-Appellees.
    Gen. No. 50,474.
    First District, Third Division.
    June 2, 1966.

      Michael Hinko, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann and Dennis J. Horan, of counsel), for The Catholic Bishop of Chicago, appellee; no brief filed for City of Chicago, appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order dismissing Counts II and III of plaintiff’s amended complaint, and for judgment in favor of the defendant, The Catholic Bishop of Chicago, a corporation sole, for costs against the plaintiff. The order recites that there is no just reason to delay enforcement of, or appeal from, the judgment and order. The main question involved in this case is whether the plaintiff was required to serve a six months’ notice, pursuant to section 3 of the act known as Tort Liability of School Districts and Nonprofit Private Schools (Ill Rev Stats 1961, c 122, par 823).

The original complaint at law was filed on the 25th day of February, 1964, and alleged that on the 26th day of February, 1963, the defendant, City of Chicago, a Municipal Corporation, leased certain premises at or near 10206 South Vernon Avenue, Chicago, Illinois, and in particular, the stairway going from the northeast entrance down to the basement of the St. John De La Salle school building. The defendants, The Catholic Bishop of Chicago, a corporation sole, and St. John De La Salle Parish owned, controlled and managed the premises known as 10200 South Vernon Avenue. The defends ants were charged with carelessly and negligently maintaining, managing, owning and controlling the buildings, building entrances, stairways, etc., permitting them to become wet, slippery and dangerous, thereby causing the plaintiff to slip and fall, by means of which acts plaintiff was caused to and did fall upon the stairway, inflicting severe injuries. The complaint then set forth the various alleged acts of negligence on the part of the defendants collectively. The original complaint further alleged that on the 23rd day of August, 1963, within six months from the time of the occurrence complained of, a notice of claim for personal injuries, a copy of which was attached to the complaint, was served upon the City of Chicago, and upon its City Clerk and Corporation Counsel. The notice of personal injuries attached to the original complaint alleged that the accident and injuries to the plaintiff occurred on a stairway going from the entrance down to the basement of the St, John De La Salle school building, and that the school building is part of the St, John De La Salle church property.

The defendants thereafter filed a motion to dismiss under section 48(1) (i) of the Illinois Civil Practice Act (Ill Rev Stats 1963, c 110, § 48 (1) (i)). In the motion to dismiss the defendants stated that the plaintiff’s action against The Catholic Bishop of Chicago, a corporation sole, was based upon the negligence of the defendants in the ownership, operation and maintenance of the St. John De La Salle school premises; that under the statute (Ill Rev Stats 1963, c 122, pars 823 and 824) the plaintiff was required to file a statement in writing in the office of the Superintendent or Principal of such school in the case of nonprofit private schools, and that upon the failure to file such notice within such prescribed time, such civil action should be dismissed, and that the person to whom such cause of action accrued for any personal injury or property damage shall be therefore barred from ever suing. The defendant, The Catholic Bishop of Chicago, a corporation sole, also stated in the motion that the plaintiff had not complied with section 823 above mentioned in that he failed to file the required statement in writing with the Superintendent or Principal of the St. John De La Salle school. The motion was sworn to. Without argument on this motion the plaintiff asked and obtained leave to file an amended complaint. Count I of the amended complaint is against the defendant, City of Chicago and is not involved in this appeal. Count II was against The Catholic Bishop of Chicago, a corporation sole, and the only change made in Count II of the amended complaint was to change the location of the alleged injuries from the St. John De La Salle school building to the St. John De La Salle church building. Count IH of the amended complaint was against The Catholic Bishop of Chicago, a corporation sole, and alleged that the said defendant had in full force and effect a policy of insurance protecting the defendant from loss for any claims for injuries, and that by virtue of such insurance protection the defendant waived any and all immunity or restrictions of actions.

An affidavit was filed on behalf of the plaintiff signed by Right Reverend John J. Murphy stating that he was the Pastor of the St. John De La Salle Church; that he was familiar with the stairway leading from the ground floor to the basement of the premises wherein the plaintiff sustained injuries; that the said stairway was at the time under the maintenance, management and control of St. John De La Salle Church and owned by the Catholic Bishop of Chicago; that there is no superintendent of the St. John De La Salle School; that the St. John De La Salle School does not own, maintain, manage or control any of the premises mentioned; that the janitorial and maintenance services are paid for by the St. John De La Salle Church; that on occasions when part of the premises are leased to the Board of Election Commissioners of the City of Chicago for matters pertaining to elections the rental therefrom is placed into the church treasury; that the facilities which are on occasion leased to the Board of Election Commissioners are used by the church for meetings and choir practices and that the premises are insured by the St. John De La Salle Church and in the name of the Catholic Bishop of Chicago and premium payments are made by the St. John De La Salle Church.

Thereafter the same Right Reverend John J. Murphy filed an amended affidavit on behalf of the defendant Catholic Bishop of Chicago in which he set forth that there is no legal entity known as the St. John De La Salle Parish; that on February 26,1963, the plaintiff was allegedly injured in a fall on the St. John De La Salle Parish school premises; that the building in which Mr. Terrill was allegedly injured is a school building built in 1950 and consists of two floors of classrooms with four classrooms per floor as well as an auditorium in the basement. That the St. John De La Salle church building was built in 1950 with one wall contiguous to the school building; that the plaintiff fell in the school building and not in the church building; that the St. John De La Salle school is owned and operated by the Catholic Bishop of Chicago, a corporation sole, which is a not-for-profit private corporation and does not have shareholders nor declare dividends; that all of its funds for maintenance and operation are provided by the Catholic Bishop of Chicago, a not-for-profit corporation, and that all of its funds are used for the operation and maintenance of the school and that no private persons have an ownership interest in or realize profit from the operation of the school.

A motion was made by the defendant, Catholic Bishop of Chicago to strike Count III of plaintiff’s amended complaint at law and also a motion was filed to dismiss Counts II and III of plaintiff’s amended complaint under section 48(1) (i) of the Civil Practice Act. The plaintiff also filed an affidavit on his own behalf to the effect that he was familiar with the church premises located at the southwest corner of 102nd and Vernon Avenue, and that the stairway leading from the ground level to the basement of the church premises where the alleged accident occurred is part of the church premises and used primarily for church purposes. He also stated that on the date of the accident the stairway was used exclusively for the benefit of St. John De La Salle Church, as lessor of the premises to the City of Chicago.

It would appear that the hall or auditorium in the basement had been leased for one day to the Board of Election Commissioners of the City of Chicago.

On December 23, 1964, the court heard the motion of the defendant to dismiss Counts II and III of the amended complaint, which was sustained on the ground that plaintiff had failed to file the six months’ notice required by statute, and the court thereupon dismissed Counts II and III. The court also entered judgment for costs against the plaintiff in favor of the defendant, Catholic Bishop of Chicago.

The first question to be determined is whether the plaintiff was required to serve a six months’ notice on the principal of St. John De La Salle school, assuming the accident happened on the school property.

Paragraph 823 of the Schools Act (Ill Rev Stats 1963, c 122, par 823) reads in part as follows: “With respect to nonprofit private schools, the statement in writing required hereunder shall be filed in the office of the Superintendent or Principal of such school.” There is no question but that no statement in writing was filed by the plaintiff in the office of the principal of the school, nor with anyone connected with the school.

The Tort Liability of School Districts and Nonprofit Private Schools Act reads as follows: “AN ACT relating to damages recoverable against school districts and nonprofit private schools for injuries occurring as a result of negligence in the conduct of schools.” Section 1 of said Act, which sets forth the public policy of the State, refers to nonprofit private schools conducted by bona fide eleemosynary or religious institutions. (Ill Rev Stats 1963, c 122, par 821.) There can be little doubt that the legislature had in mind at the time of the passage of this Act private schools conducted by religious institutions.

The school building in question was owned by the defendant, The Catholic Bishop of Chicago, a corporation sole, and if the accident happened in the school building so operated and owned by the defendant, the failure of the plaintiff to file a notice upon the principal of the school within six months of the date of the accident would preclude recovery by the plaintiff against the defendant, Catholic Bishop of Chicago. From a reading of the affidavits filed herein by the plaintiff, there is considerable ambiguity as to whether the accident occurred in the school building or in the church building. It would appear that the plaintiff has been using the words “church building” in the sense that the school property was owned by the church. However, we feel that the affidavits submitted on behalf of the plaintiff and the motion and affidavit filed by the defendant, created a question of fact as to the exact location of the accident.

Section 48(3) of the Civil Practice Act provides in part as follows:

“. . . If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one at law and a jury demand has been filed by the opposite party in apt time.”

The plaintiff had filed a jury demand in this case. The disputed question is material and genuine and this section does not contemplate that findings of fact shall be based on a contest conducted through affidavits. Davis v. Hoeffken Bros., Inc., 60 Ill App2d 139, 208 NE2d 370. As to whether the accident happened in the school building or in the church building cannot be determined from reading the affidavits. That fact is in dispute and cannot be decided by the court under section 48, since a jury demand had been filed by the plaintiff and a decision on this question is vital to the plaintiff’s case.

The plaintiff in his argument seems to contend that ownership of the premises should determine whether it is a school or a church building, and since the premises in question are owned by a church, namely, The Catholic Bishop of Chicago, a corporation sole, the notice is not required. This is faulty reasoning. The only question to be determined is whether the accident happened in the building devoted to school purposes, or in the building devoted to church purposes. The fact that an auditorium or assembly room in a school is at times used for purposes other than for teaching is not controlling. It is common knowledge that auditoriums and assembly rooms in all schools, whether public or private, are at times used for purposes other than strictly for teaching purposes. However, this does not change the character of the building or the use to which the building is devoted. We think this case must be sent back to the trial court. The question of whether the building was primarily devoted to and known as school premises, or primarily devoted to and known as the church of the Parish, must be decided at the trial.

That part of the judgment order which sustained the motion to strike and dismiss Count HI of the amended complaint must be affirmed. Count HI related to insurance carried on the building.

In Haymes v. Catholic Bishop of Chicago, 52 Ill App 2d 140, 201 NE2d 675, the court held that an allegation that the defendant had purchased and procured insurance coverage out of which any judgment obtained might be satisfied is neither necessary nor appropriate since Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89. Likewise, the allegation in Count III as to the insurance coverage did not state a cause of action.

The plaintiff seeks to raise constitutional issues for the first time on appeal to this court. Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court in cases involving a question arising under the constitution of this State. (Ill Rev Stats 1965, c 110, § 101.28-1.) Since this is an appeal from a final judgment of the circuit court involving a question arising under the constitution of this State, the appellate court does not have jurisdiction to hear the same. The defendant, Catholic Bishop of Chicago, has moved to strike all constitutional issues raised in this appeal. The plaintiff has asked in the alternative that the constitutional issues be transferred to the Supreme Court. While under present law the appellate court is given authority to transfer to the Supreme Court, in our opinion such a transfer would be futile. Since the constitutional issues raised on this appeal were not raised in the trial court, the Supreme Court would not consider them. Village of Lansing v. Hacker, 7 Ill2d 258, 130 NE2d 265; People v. Estep, 409 Ill 125, 97 NE 2d 823. The Supreme Court of Illinois has repeatedly held that it will not decide constitutional questions which have not been raised in the trial court. The defendant, Catholic Bishop of Chicago, has moved to strike all constitutional issues raised in this appeal and the same are stricken.

The plaintiff has raised other points which we feel will not occur again in the trial of this case, and we will not unduly lengthen this opinion solely for the purpose of discussing them. The judgment of the trial court as to the dismissal of Count III of the amended complaint of the plaintiff is affirmed, and the judgment of the trial court sustaining the defendant’s motion to dismiss Count II of the amended complaint is reversed and remanded.

In Kinsey v. Thompson, 44 Ill App2d 304, 194 NE2d 565, the appellate court held that where a question of fact was created by affidavits filed in support of and in opposition to a motion, that question shall be determined by a jury. On page 308 of the Kinsey case, supra, the court said:

“We are aware that to permit the same jury to determine whether or not there had been a waiver of the statute of limitations and at the same time determine the question of liability and damages in the personal injury suit, would be violative of basic principles long announced in the Courts of this State. It would, therefore, be essential for a preliminary trial of the issue of waiver or estoppel to plead the statute of limitations, and thereafter, by ■a separate jury, if the jury should decide that there was in fact waiver or estoppel relating to the statute, of the basic issues in the personal injury action, by another different jury.”

We are remanding this case on authority of the Kinsey case, supra, with instructions that if the defendant, Catholic Bishop of Chicago, should plead the failure of the plaintiff to file a six months’ notice, and in said pleading allege that the accident occurred in the school building, then the issue shall be tried by a separate jury which will determine whether the accident happened in the building known as the school building or in the church building proper. Should that jury determine that the accident occurred on premises primarily used for school purposes, the case against the Catholic Bishop of Chicago should be dismissed for failure of plaintiff to serve a six months’ notice. If the jury finds that the accident happened on premises primarily used for church purposes, then the case shall be submitted to a separate jury to determine the basic issues of the personal injury action.

Affirmed in part, reversed and remanded in part with directions as above set forth, and such other and further proceedings as are not inconsistent with the views expressed herein.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    In the Matter of the Application of the County Collector, etc. Petition of William B. Levy, Trustee, for a Tax Deed. Sonia Zeve, Petitioner-Appellant, v. William B. Levy, Trustee, Respondent-Appellee.
    Gen. No. 50,426.
    First District, First Division.
    June 13, 1966.
    Rehearing denied September 8, 1966.

      John A. Doyle and Gerald M. Chapman, of Chicago, for appellant.
    Allan L. Blair, of Chicago (Allan L. Blair and Bruce M. Buyer, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This appeal has been brought by Mrs. Sonia Zeve from an order of the trial court dismissing her petition to set aside a tax deed for premises at 4638 Cortland Street in Chicago. In her petition, brought under § 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72, 1963), she alleged that diligent inquiry had not been made by respondent to find all persons interested in the property, and that a process server, who was an agent of the respondent, had made fraudulent representations to the trial court in procuring the tax deed. At the close of petitioner’s case at the hearing on the § 72 petition, the court granted respondent’s motion for a directed ruling in his favor, specifically finding that there had been no fraud in the procurement of the tax deed, and this appeal followed.

Sonia Zeve and her husband, Charles Zeve, were the record owners of the subject property until Mr. Zeve’s death in 1958. In 1959, Mrs. Zeve contracted to sell the property to Mr. and Mrs. Glenn Pettit, and in December of 1959 moved to 5404 W. School Street in Chicago, where she still resides. In 1959, Mrs. Zeve paid the real estate taxes on the property for the year 1958; and in 1960, the Pettits paid the taxes for 1959. The taxes for 1960, however, were not paid by either, with the result that the property was sold for nonpayment of general real estate taxes on March 20, 1962, to the respondent’s predecessor in interest for $72.37. The redemption period on the property, after an extension, was to expire on October 19,1964.

On June 4, 1964, respondent’s predecessor in interest applied for a tax deed to the premises. At the ex parte hearing on this application, Ben Shapiro, a professional process server employed by the respondent, testified on behalf of the respondent and filed an affidavit. In his testimony and affidavit, Shapiro represented that the subject property was “improved with a one and a half story frame building with siding, a two-family residence” ; that Richard Pettit was living on the first floor and Glenn Pettit, the contract purchaser, on the second floor, and that there were no other occupants of the building. He further stated that on June 8, 1964, he had visited the premises and had personally served notice of the action to obtain a tax deed upon both Richard and Glenn Pettit, and that he had advised each of the contents thereof. He stated that he had inquired of Glenn Pettit as to the whereabouts of the Zeves, and was told by him that the Zeves lived somewhere in San Bernardino, California, but that Glenn Pettit refused to give him any other information. Shapiro swore that he had made diligent search and inquiry to ascertain the whereabouts of all persons interested in the premises. The Zeves were served by publication in the Chicago Daily Law Bulletin in June of 1964, and on October 26, 1964, the court entered an order to issue a tax deed.

In December of 1964, Mrs. Zeve filed her petition under § 72 of the Civil Practice Act to set aside the order to issue the tax deed, alleging that she first heard about the action on November 28, 1964, when Glenn Pettit forwarded to her a letter from the respondent informing Pettit that title had been transferred to the respondent and that further payments were to be made to him. She further alleged that ever since she moved from the subject property, she had resided at 5404 W. School Street in Chicago; and that at all material times there were but two listings in the Chicago telephone directory under the name Zeve, one of which was for her son, Charles L. Zeve. She further alleged that Shapiro’s representation in his affidavit that he had used due diligence to find interested persons was either negligently or intentionally false and constituted fraud.

In his answer, respondent denied the allegation that Shapiro had not made diligent inquiry, and stated that whether or not he had done so could not be relitigated in a collateral attack. Respondent further alleged that notices of the action had been mailed to the petitioner at her last known address, the subject property. As an affirmative defense, respondent alleged that petitioner had filed an action against Glenn Pettit for $15,000, for wrongfully informing Shapiro that Mrs. Zeve had moved to California, and that therefore it was impossible for Mrs. Zeve to claim in this case that respondent had committed a fraud upon her.

At the hearing on the § 72 petition, Alvie Pettit, who was the father of Glenn Pettit and who, with his wife, resided on the second floor of the building on the subject property, testified for the petitioner that he talked to Shapiro in June of 1964 at the subject premises, and told him that he and his wife were the only ones at home. Alvie Pettit said he told Shapiro, in response to his questions, that Glenn Pettit, his son, was the contract purchaser of the premises, and that he was making payments on the property. He said that he told Shapiro, after the latter identified himself as “a tax man,” that Mrs. Zeve was in California. He testified that he had made up that story himself to get rid of bill collectors.

Glenn Pettit, called by the petitioner, testified that under his contract to purchase the property, he was obliged to pay the real estate taxes. He stated that he had never had a conversation with Shapiro. He testified that Richard Pettit was his nineteen-year-old son and that Mrs. Zeve had never told him to tell anyone that she was in California. Respondent then introduced into evidence a tape recording of a conversation between Glenn Pettit and counsel for the respondent, which had occurred at the office of the latter over a month earlier. In that conversation, Glenn Pettit stated: “You see, she told us, she said if there is anybody that comes here, she says to tell them I am in California, I am here, there, anywhere, so that everyone who come around over the few years we lived there we never gave them the address and we just told them she moved to California; 99

Mrs. Zeve testified in her own behalf that she had resided at 5404 W. School Street in Chicago ever since leaving the subject premises in 1959, and that she had received no notice of the tax deed proceedings before November 28, 1964. She stated that the Pettits had been making payments to her at her new address, and that it was also the Pettits’ obligation under the contract of sale to pay the real estate taxes. On cross-examination, she stated that she had paid the real estate taxes for the year 1958 in 1959, and that the Pettits had paid the real estate taxes for the year 1959. She testified that she had never told anyone to tell persons that she was in California.

At the close of petitioner’s testimony, she rested her case. Respondent then moved for a directed finding, which was granted by the trial judge, who specifically found that there had been no fraud in the procurement of the tax deed. This appeal followed.

Section 263 of the Revenue Act (Ill Rev Stats, c 120, § 744, 1963) sets forth the notice requirements for the validity of a tax deed resulting from a sale of property for nonpayment of real estate taxes. Under the provisions of that section, the mailing of notice to the Zeves at the subject property, and the notice served upon them by publication, could only entitle the respondent to a tax deed if he had made diligent inquiry, but had been unable to locate the Zeves within the county. Shapiro stated in his affidavit in support of the application for a tax deed that he had made such diligent inquiry. Petitioner claims that Shapiro’s inquiry did not qualify as “diligent,” and that Shapiro’s assertion to the contrary constituted fraud such as would require the court, on a § 72 petition, to set aside the order for the issuance of the deed.

In Shockley v. Good, 13 Ill2d 298, 148 NE2d 763, our Supreme Court upheld an order setting aside a tax deed on the grounds that the order was fraudulently obtained. There, as here, the petitioner alleged that the party claiming under the tax deed had failed to make diligent inquiry, and had fraudulently represented to the court in an affidavit that such inquiry had been made. The Supreme Court stated, “Diligent inquiry has been defined as ‘such inquiry as a diligent man, intent upon ascertaining a fact, would usually and ordinarily make,— inquiry with diligence and in good faith to ascertain the truth.’ (VanMatre v. Sankey, 148 Ill 536, 562, 36 NE 628.) The inquiry must be as full as the circumstances of the particular situation will permit, (Graham v. O’Connor, 350 Ill 36, 41, 182 NE 764) and it may not be limited to the county in which the land is located.” 13 Ill2d at 302, 303.

In Graham v. O’Connor, 350 Ill 36, 182 NE 764, the court discussed the meaning of the phrases “due inquiry” and “diligent inquiry,” as used in statutes conveying jurisdiction on the basis of publication: “The phrases ‘due inquiry’ and ‘diligent inquiry’ in that statute are not intended as useless phrases, but are put there for a purpose. Those two phrases have a well-understood meaning that cannot be reconciled with the taking of a chance or guessing that the names and addresses of unknown parties cannot be ascertained. A perfunctory inquiry does not comply with the provisions of the statute. An honest and well-directed effort must be made to ascertain the names and addresses of unknown parties. The inquiry must be as full as the circumstances of the particular situation will permit. . . . It is clear that the defendant fell far short of making the ‘due inquiry’ and ‘diligent inquiry’ required by the statute. Consequently her affidavits did not speak the truth.” (350 Ill at 40, 41).

We conclude that the inquiry made by the respondent in this case into the whereabouts of Mrs. Zeve similarly fell far short of qualifying as “diligent,” as that term is used in § 263 of the Revenue Act. Mrs. Zeve has resided at one address, 5404 W. School Street in Chicago, ever since 1959. At all material times, there was a listing in the Chicago telephone directory under the name “Charles L. Zeve,” which is the same name as the petitioner’s deceased husband, and who is in fact her son. A casual look in the telephone directory would have led the respondent to Mrs. Zeve. Furthermore, it appears from the record that Shapiro, on behalf of respondent, talked only to Alvie Pettit, the father of Glenn Pettit, the contract purchaser of the premises. According to Alvie Pettit’s testimony, he informed Shapiro that his son was a contract purchaser, and was making payments to Mrs. Zeve. Her new address was therefore known to Glenn Pettit, but the record does not reveal any effort on the part of respondent to discover it. The omission to serve notice upon Mrs. Zeve was a consequence of respondent’s failure to make diligent inquiry as to her whereabouts, and denied her an opportunity to redeem her property after the tax sale. Respondent’s representation that diligent inquiry had been made constituted a fraud upon the court which issued the tax deed, thereby rendering the deed void. Shockley v. Good, 13 Ill2d 298, 148 NE2d 763. See also Dahlke v. Hawthorn, Lane & Co., 67 Ill App2d 44, 214 NE2d 568.

We find no merit in respondent’s contention that petitioner is estopped from alleging fraud by virtue of her suit against the Pettits for wrongfully informing Shapiro that petitioner was in California. Respondent’s failure to make diligent inquiry arises from the fact that he did not take other steps to determine petitioner’s whereabouts.

In Village of Dolton v. First Nat. Bank of Blue Island, 12 Ill2d 435, 147 NE2d 62, the owner of a tract of real estate for which a tax deed had been issued, without actual notice to him, petitioned to have the deed set aside on the grounds that diligent inquiry as to his whereabouts had not been made. The trial court denied the petition, and the Supreme Court affirmed, holding that while the inquiry must be as full as the particular situation will admit, the failure to uncover a particular fact does not, in and of itself, indicate a lack of diligent inquiry. But the court went on to point out that in that case the owner of the property had actively sought to conceal her ownership and her home address; and that there had been no showing “that an honest effort was not made by affiant to locate the appellant or that fraud was committed upon the court.” 12 Ill2d at 440, 441. These circumstances distinguish that case from the one at bar.

The order of the Circuit Court is therefore reversed, and the cause remanded with directions to vacate the issuance of the tax deed and remove it as a cloud upon the title of petitioner, upon the reimbursement to respondent for the taxes for 1960, and any subsequent taxes paid, as well as interest and costs.

Order reversed, and cause remanded with directions.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jesse Pena, Defendant-Appellant.
    Gen. No. 50,568.
    First District, First Division.
    June 13, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel Flaum and Robert A. Romanoff, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial on a murder indictment, Jesse Pena, 17 years of age, was found guilty of voluntary manslaughter under section 9-2 (b) of the Criminal Code (Ill Rev Stats 1965, c 38). He was sentenced to the penitentiary for a term of 5 to 15 years. On appeal, defendant contends that his conviction should be reversed because he acted in self-defense.

In summary, the record shows that two groups of boys were in a street altercation, and defendant shot and killed Dragan Petrovich, one of the group known as “Junior Spartans,” and wounded another, Jesse Perez. It was stipulated that the cause of death of the deceased was a gunshot wound, and that no alcohol was found in the blood of the deceased.

Criminal Code provisions in point are:

“§ 9-2. Voluntary Manslaughter.] . . .
“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

and Article 7 — Justifiable Use of Force; Exoneration, which provides:

“§ 7-1. Use of Force in Defense of Person.] A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

The evidence for the State included two eyewitnesses and a police officer.

The first witness for the State, Jesse Perez, 19 years of age, testified that on the evening of November 28, 1964, the “Junior Spartans,” Dragan Petrovich, Jesse Perez, Angelo Flores, Salvadore Tinoco and a boy called “Cotton Head,” had spent some time driving around in Petrovich’s 1959 white Chevrolet. At about 11:45, they parked the car on 18th Street near Newberry Street. They got out and walked across the street toward a nearby restaurant. As they reached the other side of the street, they saw a group of boys, which included the defendant, Jesse Pena, Steven Tienda (Buzzy), Raymond Juarez, Robert Paloma and James Daniels. “Cotton Head” said something to “Buzzy,” and Perez heard someone say, “Jesse, forget it.” Perez then saw some boys running.

Perez further testified that he was standing quite close to defendant when he heard a shot. He felt blood on his neck and fell to the ground. “I kneel down and he took another shot at me. That’s when I saw the gun on him [Jesse Pena], . . . three feet away from me. ... I just tried to get up and run. I couldn’t run. He took another shot. He shot at me twice. After I got hit the first time he shot at me twice. . . . All I remember is somebody picked me up and took me in a squad car.”

On cross-examination, Perez testified that he and the defendant were not exactly friendly but they had never had an argument. They had delivered papers together two or three years before. Perez dropped out of school when he was in the 8th grade.

The second witness for the State, Salvadore Tinoco, 17 years of age, knew the defendant, Jesse Pena, and the deceased, Dragan Petrovich. He had been in the car with Petrovich, Perez, Flores and “Cotton Head,” and when they walked across the street, “Cotton said, T want to talk. I want to say something to Buzzy,’ Steven Tienda. ... So I turned around and I said, ‘Forget it.’ . . . Well, I heard a shot. I turned around. Jesse was going down, Jesse Perez. So I went towards Jesse. Pena, he shot again at Jesse. So then he turned around towards me and Dragan and pointed towards me. I dived. He took a shot. I don’t know where he hit Drag-an. So then he took another shot. I heard the other shot. Then he came towards me. I was on the ground. He shot. But I jumped up. He missed me. . . . Jesse Pena faced towards Dragan and shot again. Dragan was in the middle of the street, running into . . . the alley. He shot at Dragan. Then I picked up Jesse. I was running. I seen Dragan when he got hit again. I don’t know if he hit him then. . . . Jesse Pena re-loaded and started shooting again.” Tinoco heard the gun fired about twelve times. Before the gun was fired, he had no argument with Jesse Pena or anyone.

On cross-examination, he testified he had quit high school while in his first year and was working at the time of the occurrence. He did not hear defendant say anything, nor Steven Tienda. “I didn’t hear him say anything, ... I didn’t hear Cotton say anything,” and when the witness said, “Forget it,” he intended for “Cotton to forget what he was talking or saying.”

The last witness for the State, Police Officer John Serafini, testified that he and defendant’s father went to the home of defendant’s brother, where they found defendant. “Jesse stated he had been involved in a fight with a couple of boys; that he shot two of them. I asked Jesse where the gun was. At first he said he had thrown the gun away immediately following the shooting, but a few minutes later he said, ‘It’s underneath the back porch,’ ” where it was found.

The evidence for the defense included the defendant and three eyewitnesses.

Defendant testified that earlier in the evening he had been to a party, and he left with Steven Tienda (Buzzy), Raymond Juarez, Robert Paloma, James Daniels and Sylvia Guerra. As they were walking down 18th Street, a white 1959 Chevrolet passed by. One of the boys in his group said, “ ‘There goes the Junior Spartans.’ We said we might as well hurry up because they are always looking for trouble. . . . They were supposed to be looking for Steven Tienda and Raymond Juarez. . . . The car stopped, to cross the street. Jesse Perez and Drag-an Petrovich and Salvadore Tinoco and “Cotton Head” and Butch Flores came out of the car. They came up to Buzzy. Cotton Head said, ‘We have something to settle.’ He hit Buzzy. Then Buzzy said he didn’t want to have no quarrel. So Chava, Salvadore Tinoco, came and hit him and threw his cigarette in his face. He said, ‘Let’s get this over with.’ They were swearing. . . . all the boys had their hands in their pockets and Buzzy was scared and so was I. And I pulled out the gun and said . . . ‘Not so many of you on Buzzy. Leave him alone.’ Jesse got around me. He was coming to jump me from behind. I turned around and shot to the side. I didn’t know I hit him. He kept on coming. Dragan and Salvadore and the other two boys were coming to the front of me. So I got scared. I shot up in the air and at the side of them. I didn’t know I hit nobody because they all turned around and ran. That is when we ran, too.” He did not intend to hit anyone and did not shoot at “anybody running away.” He shot about five times and did not aim the pistol at anybody in particular and did not intend to hit Dragan. He reloaded the gun after he had left the scene, about a mile away.

Defendant’s witnesses, Robert Paloma, Steven Tienda (Buzzy), and Raymond Juarez, substantially corroborated defendant’s testimony that the Junior Spartans were the aggressors, and that defendant interceded on behalf of Tienda (Buzzy). Paloma testified that Tinoco and “Cotton Head” were the ones that hit Tienda. “Jesse said to leave him alone. They started coming towards him. . . . Perez, Salvadore, and those others. They stepped towards Jesse Pena. . . . Jesse Pena pulled out his gun. He started waving it. He said . . . to get back. They kept on coming. . . . Well, that is when I heard the shots.” He heard about three shots, and there were words exchanged before the shooting. Tienda (Buzzy) also testified that Perez and “Cotton Head” were the aggressors. “Cotton Head” hit Tienda in the mouth, and Tinoco threw a cigarette in his face. Defendant interceded, and they told him to keep out of it “ ‘or else we will take care of you too.’ . . . Then they started going towards Jesse. . . . that’s when Jesse pulled out a gun and told them to get back. They kept on coming. Jesse fired from the back.” He heard about four shots fired, and he saw Pena shoot when the boys were running. Juarez testified that “Buzzy said T don’t want to fight you.’ Jesse Pena then said ‘Get out of here,’ and pulled a gun. Then, Dragan said ‘Go ahead and shoot me/ Someone said, ‘Go ahead and shoot. See how brave you are/ So Pena shot.”

Defendant’s principal contention is that “it was reasonable under all the circumstances for the defendant to believe that the use of deadly force was necessary for his own defense.” People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965); People v. Bush, 414 Ill 441, 111 NE2d 326 (1953); People v. Turner, 385 Ill 344, 52 NE2d 715 (1944); People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (1965).

In People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965), a cabdriver got out of a cab and attempted to help an old man who was being severely beaten by a group of boys. The boys threw a cement block and a brick at defendant’s cab, causing damage to the right door. The defendant fired two shots in the direction of the boys, and one was killed. The Second Division of this court reversed a conviction of involuntary manslaughter. In discussing the elements which justify the use of force in the defense of his person, the court said (p 165) :

“These elements are: (1) that force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable. There is a further principle involved, when, as in the instant case, the defendant uses deadly force. This principle limits the use of deadly force to those situations in which (a) the threatened force will cause death or great bodily harm or (b) the force threatened is a forcible felony.”

After examining the facts of the Williams case in the light of the foregoing elements, the court further said (p 169):

“It is apparent that the throwing of bricks at defendant could have caused death or great bodily harm if defendant was struck by one of them. Defendant was justified in using deadly force to protect his person.
“In this case we only hold that when a person comes to the aid of another who has been the victim of a battery, said person has the right to use deadly force, if the parties who were the assailants attack him and if the other requirements of self-defense are met. The circumstances of this case present a situation in which we approach the minimum borderline of self-defense. The circumstances are such, however, that the judgment must be reversed.”

In People v. Bush, 414 Ill 441, 111 NE2d 326 (1953), defendant Bush was convicted of murder. Bush, age 20, and his girl friend were approached on the street b'y another group of boys, and an argument ensued. The police broke up the argument. Later,, as the boy left the home of his girl friend, “he was surrounded menacingly by the same group of youngsters estimated in number from ten to nineteen.” By some mysterious process, a knife was passed into his hand, and “After I got the knife the Sterling boys and the rest of the boys started crowding me and I was cutting them to keep them off, I was cutting at all of the boys — not any particular one.” In holding that the slaying by defendant was a justifiable act of self-defense, the Supreme Court said (p 444):

“The defendant was where he had a lawful right to be and it was not his duty to flee, but being assaulted first he had a right to stand his ground and if reasonably apprehensive of serious injury was justified in taking his assailant’s life. (People v. Durand, 307 Ill 611.) We have repeatedly held that one who is unlawfully assaulted and put in apparent danger of his life or of great bodily harm need not attempt to escape but may repel force with force, even to the taking of assailant’s life, if necessary or apparently so, to prevent bodily harm. Hammond v. People, 199 Ill 173.”

The State contends that “under the circumstances of this case, it was unreasonable for the defendant to believe that the use of deadly force was necessary.” People v. Jordan, 18 Ill2d 489, 165 NE2d 296 (1960); People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965); People v. Golson, 392 Ill 252, 64 NE2d 462 (1946).

In People v. Jordan, the Supreme Court affirmed a judgment of murder as against a plea of self-defense and said (p 492):

“In order that a killing be justified on the grounds of self-defense it must appear that the danger was so urgent and pressing that in order to save the defendant’s own life or to prevent his receiving great bodily harm the killing of the other was absolutely necessary and it must appear also that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. . . . Whether a killing is justified under the law of self-defense is always a question of fact to be determined by the jury under proper instructions.”

In People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965), defendant was convicted of voluntary manslaughter. Defendant had been warned that the decedent had a gun in his trunk; that decedent said “he would blow defendant’s head off and would kill him”; and that defendant, opened the trunk of his car and fumbled inside for some object. In affirming the conviction, the court said (p 30) :

“. . . we further find, contrary to defendant’s contention, that the fear experienced by defendant was not so great that defendant could take the life of another. . . . True, there is no duty on a defendant to retreat from a wrongdoer. . . . Defendant, however, in the instant situation, affirmatively approached the deceased. He set the stage for the type of violation found in section 9 (2) (b) of the Code. We hold therefore, that there was sufficient evidence introduced that defendant, despite his fear of bodily harm, acted unreasonably under the circumstances.”

In a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to a defendant’s guilt. People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963).

It is not controverted that the decedent and his group were the aggressors or that “Cotton Head” and Perez intended to assualt Tienda (Buzzy), and that defendant came to his aid. Before entering judgment, the trial court reviewed the testimony at length and defendant’s defense that he acted justifiably. The court remarked, “There is no evidence any of them had any deadly weapons or that any of them used any great force. The only one who did anything real mean and vicious was Tinoco, who threw the cigarette in his face. Jesse Pena pulled the gun and he says he tried to scare them, first. But he fired and he kept firing after they began to run. That appears to be the evidence beyond a reasonable doubt. This Court finds Pena acted as follows: He is covered by section 9-2B of Chapter 38 of the Criminal Code, which provides ‘A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.’ His belief certainly was unreasonable. He was not the aggressor, however. He didn’t especially want to kill Dragan Petrovich, but intended to shoot the boys he felt were looking for him, which they were. Therefore I find Jesse Pena guilty of the lesser included offense of voluntary manslaughter.”

We conclude the evidence here supports the trial court’s determination that defendant acted unreasonably under the circumstances, and that the proof was sufficient to support the conviction of voluntary manslaughter. Therefore, we will not disturb the finding of the trial court.

Defendant also contends that “probation would have been adequate under the circumstances for the defendant so as to best effect his rehabilitation.” (People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (1965).) The record shows that before sentencing defendant, the trial court considered at length the background of the defendant and the testimony of a representative of a local church and interviewed defendant’s father and mother, and concluded that the sentence given him was proper under the circumstances and that defendant “needs some punishment, some serious punishment. His own father couldn’t handle him.” We find no reason here for this court to reduce the sentence imposed by the trial court.

For the reasons given, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Rush, Defendant-Appellant.
    Gen. No. 50,599.
    First District, First Division.
    June 13, 1966.

      Lawrence F. Doppelt, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Samels, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a bench trial, defendant, John Rush, was found guilty on October 8, 1963, of the offense of unlawful possession of a narcotic drug, one marijuana cigarette. He was sentenced to the penitentiary for a term of two years to two years and one day. By an order entered on May 27, 1965, the Illinois Supreme Court found that it had no jurisdiction of his direct appeal and transferred it to this court.

After the transfer of the appeal to this court, the State, on December 27, 1965, moved to dismiss the appeal “as moot.” The suggestions of the State, filed in support of its motion, show that the Parole and Pardon Board entered an order under date of February 17, 1965, in which defendant was granted a “conditional release” and on April 12, 1965, was released from the penitentiary “on a Conditional Release,” and he was “discharged by expiration on his Conditional Release on July 9, 1965.”

Because of defendant’s objections, the State’s motion was taken with the case.

We note that the record shows defendant’s abstract and brief were filed in the Office of the Clerk of the Supreme Court on March 20, 1965, and the State’s brief was filed in this court on January 24, 1966. After considering defendant’s earnest insistence that the facts stated show defendant was given “an improper and excessive sentence,” and that it is not clear “that this matter is not moot,” we have decided to consider the merits of defendant’s appeal and, therefore, the State’s motion to dismiss is denied.

On appeal here, defendant contends that the trial court erroneously held that the court was without power to give defendant a suspended sentence. Defendant requests “that the Reviewing Court grant Defendant a suspended sentence forthwith.”

At the trial of defendant, who was indicted for possession of a narcotic drug, Police Officer Love Thomas testified that on June 30, 1963, he and his partner answered a call to a tavern at 3805 Cottage Grove Avenue. After speaking to a woman who pointed out defendant, the officer called to defendant and ordered him to halt. The officer then observed defendant reach out to a person and saw a cigarette fall to the ground. Officer Thomas retrieved the cigarette, which contained marijuana. Defendant was immediately arrested and charged with possession of marijuana. Mary Elizabeth Wilson, a witness for the State, testified phoning the police because defendant had threatened her, and she saw defendant drop a cigarette while he was two or three feet away from her. It was stipulated that the cigarette contained marijuana.

After a finding of guilty as charged in the indictment, counsel for the defendant urged the trial court to give defendant a “suspended sentence.” The State objected on the ground “it is not provided for by law,” and the trial court remarked, “I would like to. If I start in this way to circumvent the law, Mr. Evins, I feel I would be derelict in my duty. I didn’t write the law, and I didn’t put in there anything about one cigarette or a ton. If they wanted to do it that way, they should have put it in there. I have no way of disregarding the law as it is on the books. Sometimes we would like to. I don’t think I have a right to make a finding of not guilty when I believe he is guilty, just because it was a small amount. It is a minimum of two years.”

Defendant contends that section 22-40 (Penalties) of the Criminal Code (Ill Rev Stats 1963, c 38), under which defendant was sentenced, expressly provides for the suspension of sentence for persons convicted of possessing narcotics in certain situations. The portion of the noted section on which defendant relies provides: “No probation or suspension of sentence shall be granted to any violator who has been convicted of any subsequent offense.”

Defendant asserts the foregoing “can leave no doubt but that a Trial Judge is so authorized to grant suspended sentences in appropriate situations,” such as “any person convicted of a first narcotics offense. . . . [T]he legislature, by enacting in the subject statute that there shall be no suspended sentence in convictions of persons convicted of subsequent offenses, clearly intended that in other cases suspended sentences shall be permitted.” Authorities cited include City Sav. Ass’n v. International Guaranty & Insurance Co., 17 Ill2d 609, 162 NE2d 345 (1959), where it is said (p 612):

“A familiar principle of statutory construction is that the expression of one thing in an enactment excludes any other, even though there be no negative words prohibiting it. . . . This court has refused on some occasions to apply that principle where it would defeat the plainly indicated purpose of the lawmaking body.”

See, also, Burrows v. Schulman, 19 Ill App2d 459, 154 NE2d 327 (1958).

Defendant also argues that section 1-7 (d) of the Criminal Code (Authorized Penalties) includes the provision, “Except as otherwise provided by law, a person convicted of an offense may be . . .” sentenced as prescribed. Defendant therefore asserts “the possibility of a suspended sentence is specifically provided for by the language” quoted.

Defendant cites People v. Gary, 45 Ill App2d 250, 195 NE2d 437 (1963), as authority for his contention that the trial court has power to suspend a sentence. The State notes that in the Gary case the court was dealing with a matter of revoked probation and the concept of sentence by reason of probation. There, defendant had been given five years’ probation, and some three and one-half years later, this was revoked and he was sentenced. The court said (p 255):

“The court has the right by virtue of the provisions of the Probation Act, to suspend sentence for a definite period. . . . The court entered an order of probation for a period of five years and continued the case in accordance with Section 786 of the Act. . . . The court did not lose jurisdiction.”

The State contends that statutory authority is required for the indefinite suspension of a sentence, and the Probation Act in effect at the time defendant was sentenced (sections 784-800 of Chapter 38) contained no such provision. We agree. Although the term “probation” may be equated with “sentence suspension,” and perhaps has been so termed from time to time, the Probation Act is specific as to the discretionary power granted the court and specifically limits the period for release on probation, and no authority is granted to the court to give a defendant an indefinite suspension of a sentence.

We are not persuaded that the statutory provisions cited by defendant can be used to defeat the “plainly indicated purpose” of the Probation Act. From our examination of the authorities of this state on this point, we consider the pronouncements in People v. Penn, 302 Ill 488, 135 NE 92 (1922), to be controlling here. There it is said (pp 494, 495):

“The effective administration of criminal law requires that one who pleads guilty or is convicted of a violation of the law shall be promptly and certainly punished, and no court has authority to suspend sentence indefinitely in such case. It is the duty of the court to pronounce judgment promptly at the term at which the conviction is had, unless upon a motion for a new trial, in arrest of judgment or for other cause the case is continued for further adjudication, and the defendant by recognizance or being held in custody is still required to answer the charge. If sentence is indefinitely suspended the court loses jurisdiction, and a judgment subsequently entered is void. . . . Before the enactment of the Probation law a trial court had no discretion, as a disciplinary measure, to suspend the imposition of sentence but it was under an absolute duty to pronounce sentence promptly, and that duty was violated whenever an order was made the purpose and natural effect of which was that the defendant should understand that he might never be punished. . . . Whenever, prior to sentence, the accused is permitted to go at large with the understanding that he may escape punishment altogether notwithstanding a verdict or plea of guilty and that his subsequent conduct may affect the matter, the court is really exercising a power of probation or parole which does not belong to the court except as it is granted in the Probation act.”

Moreover, the record does not show that defendant here asked for probation. The record does show that evidence of a prior conviction of a felony was admitted without objection. Since the statutory power to grant probation is withheld from the court where any defendant has been previously convicted of a felony, unless a given period of years has elapsed, we assume from the colloquy between the court and counsel that the court could not properly have granted defendant probation, even though the court was obviously sympathetic with defendant’s position. The court said, “I have no way of disregarding the law as it is on the books.” We agree.

From this record we conclude the trial court was without statutory power to grant defendant probation or to suspend the sentence imposed upon him.

Therefore, as the sentence imposed was the statutory minimum, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Stuckey, Defendant-Appellant.
    Gen. No. 50,669.
    First District, First Division.
    June 13, 1966.
    Lawrence Rubinstein, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfonso Velez, Defendant-Appellant.
    Gen. No. 50,695.
    First District, First Division.
    June 13, 1966.

      Glenn Greenwood, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Alfonso Velez, was found guilty by a jury of the unlawful sale of narcotic drugs, and was sentenced to a term in the penitentiary of not less than ten nor more than eleven years. He filed a writ of error in the Supreme Court, and the cause was transferred here.

On appeal, the defendant contends that he is entitled to a reversal of his conviction because of the following errors: (1) counsel was wrongfully prevented from cross-examining a prosecution witness as to criminal charges then pending against him; (2) a scientific experiment was performed in court and a similar test performed on the night of the arrest by a police officer who was not qualified as an expert, and without adequate controls; (3) the testimony of an informer was not corroborated; (4) defendant was denied access during the trial to grand jury minutes containing the testimony of the informer; (5) the court failed to require a police officer, who remained in the courtroom to assist the prosecution, to testify first; (6) hearsay evidence was improperly received in the preliminary hearing; (7) the court refused to order the court reporter to read back a witness’s prior testimony; (8) prejudicial remarks were made by the prosecutor during closing argument; and (9) the delay in supplying a copy of the trial transcript to the defendant constituted a denial of due process and of equal protection of the laws.

Defendant’s arrest and conviction arose from the enforcement technique which has become known as the “controlled purchase” of narcotics. On March 22, 1963, Gene Anderson, a police informer and former narcotics addict, contacted Chicago police officers and told them he could make a purchase of narcotics. A thorough search of Anderson’s person and clothing disclosed that he did not possess any narcotics or money. The police then issued to Anderson $15 in currency, having first recorded the serial numbers of the bills and having dusted them with a fluorescent powder which is invisible to the naked eye but which can be viewed under a special light. Anderson and police officers Rigoni, Laurence, and Policewoman Scannell then proceeded in an unmarked police car to the vicinity of 3108 W. Madison Street in Chicago. Anderson entered the El Quillo tavern at that address, while the officers watched from their car, parked across the street. About ten minutes later, the defendant emerged from the tavern with another man, and Officers Rigoni and Laurence followed them on foot while Policewoman Scannell remained in the car. The men walked about a block to a rooming house, from which they emerged about five minutes later, according to Officer Rigoni, and walked back to the tavern. About three minutes after their return, Anderson emerged from the tavern and turned over to the officers a tinfoil package which the officers determined contained narcotics. The officers entered the tavern, and arrested the defendant and his companion. A search of the defendant and of the currency in the cash register did not produce the marked bills. The officers then produced a “black light,” and tested the hands of persons within the tavern. The defendant’s hands showed the presence of traces of the powder which the officers had dusted onto the currency given Anderson. Officer Rigoni testified that he then informed the defendant of this fact. The officers later searched the rooms of the defendant and his companion at the rooming house, but failed to find any of the marked money.

Anderson testified that when he entered the tavern he approached the defendant and told him that he wanted to purchase some narcotics. The defendant told Anderson that he would sell a half a gram of “stuff” for $25, and that Anderson would have to give him the money and then wait for ten minutes. When Anderson told the defendant he only had $15, the defendant conferred with his companion and then told Anderson, “I’d have to take a little out of the bag.” Anderson put the money on the bar, and the defendant picked it up, counted it, and put it in his pocket. The defendant and his companion then left the tavern, and returned ten or fifteen minutes later and gave Anderson a tinfoil package. Anderson then left the tavern and turned the package over to the police.

The defendant testified that on the night he was arrested he did not see Anderson in the tavern, did not talk to him, and did not sell him narcotics. He said that he had seen Anderson once before, in a poolroom about a month earlier, but had not talked to him. He testified that on the evening of his arrest he and his companion left the tavern and walked to the rooming house where they both lived, and that twenty minutes later, after the defendant had changed his shoes, both men returned to the tavern. When the police entered the tavern, the defendant was drinking beer and talking to the bartender. After the police had searched the defendant, and had taken away his money, they tested his hands under the “black light,” and according to the defendant told him nothing about the results of that test. His money was then returned to him. The police then searched both the defendant’s room and that of his companion, and took both men to the police station.

The defendant first contends that he was deprived of a fair trial because he was not permitted to cross-examine Anderson, in the presence of the jury, as to burglary charges then pending against him. Relying upon People v. Mason, 28 Ill2d 396, 192 NE2d 835, defendant contends that questioning as to charges pending against the informer was permissible to show that Anderson’s testimony might be influenced by interest, bias, or motive to testify falsely.

On cross-examination, Anderson was asked, “Were you ever picked up for burglary ?” The State’s objection was overruled, and the witness answered in the affirmative. Counsel then inquired, “How many times were you picked up for burglary?”, and when the State again objected the court and counsel discussed the matter in chambers. Upon returning to open court, the trial judge ordered stricken “any questions about any arrest of this witness for burglary or anything of that kind,” and instructed the jury to disregard them.

The record shows that on the following day, the court permitted defense counsel to interrogate Anderson under oath, but outside the presence of the jury, as to an arrest for burglary and possible harassment by the police. At this hearing, Anderson testified that in the last eight years he had been arrested three or four times for disorderly conduct, as a “loitering addict.” He also testified that in December of 1962 he has been arrested for attempted burglary, and that the charges resulting from that arrest were still pending. Counsel asked whether Anderson had ever been promised that the burglary charge would be dropped if he cooperated with the police in having arrested people suspected of selling drugs, and Anderson answered no. At the close of .the hearing, all of which was outside the presence of the jury, the court held that counsel had no evidence of any such promises by the police, and that testimony before the jury as to the burglary charge was not proper in the case. Upon the request of the Assistant State’s Attorney, the court admonished defense counsel not to go into any of Anderson’s arrests in the presence of the jury.

In People v. Mason, 28 Ill2d 396, 192 NE2d 835, the defendant was convicted of the unlawful sale of narcotics in a transaction which involved an informer and three narcotics officers. At the trial, the officers testified for the State but the informer did not. In cross-examining the officers, defense counsel sought to establish that some or all of the officers had been suspended from the police force and that criminal charges were then pending against them. Objections by the State to these questions were sustained by the court on the grounds that the questions were immaterial and exceeded the scope of direct examination. At a discussion in chambers, it was admitted that charges were pending against one of the officers.

On review, our Supreme Court reversed the conviction, holding that, “. . . the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely.” 28 Ill2d at 401. The court then discussed Alford v. United States, 282 US 687, decided in the United States Supreme Court in 1931, and other cases stating the same rule. Applying that rule to the facts of the Mason case, the court stated:

In the present case we have not only the apparent arrest and indictment of one, if not two, of the State’s witnesses, but also their suspension as narcotics investigators, in which very capacity they arrested the defendant and are now testifying against him. Since the informer did not testify, the inspectors were the sole witnesses to the alleged sale of narcotics. Under these circumstances the defendant had a right to cross-examine to show whatever bias or prejudice the witnesses might have. The effect of such evidence in determining whether or not the witnesses were in fact biased or prejudiced would be for the consideration of the jury.

The scope of cross-examination is generally within the trial court’s discretion. However, the widest latitude should generally be allowed the defendant in cross-examination for the purpose of establishing bias. (People v. Naujokas, 25 Ill2d 32.) In the present case the trial court cut off all inquiry on subjects with respect to which the defense was entitled to a reasonable cross-examination. This was an abuse of discretion and prejudicial error. (28 Ill 2d at 402, 403.)

In the case at bar, the sole witness to the alleged sale was the informer, Anderson. It was admitted during the hearing outside the presence of the jury that criminal charges were then pending against Anderson. It is true that defense counsel apparently was unable to present any evidence of actual promises made to Anderson by the police, or of any harassment. But under the rule as stated in Mason and as followed in People v. Soto, 64 Ill App2d 94, 212 NE2d 353, the determination of whether or not the witness was in fact biased or prejudiced was for the consideration of the jury. For this reason, the defense was entitled to cross-examine Anderson before the jury as to the pending burglary charges, and the trial court’s ruling to the contrary was an abuse of discretion and prejudicial error.

Although this finding necessitates a new trial in this case, we will nevertheless consider briefly the other assignments of error to facilitate that trial. Defendant contends that the trial court erroneously permitted Officer Rigoni to perform a demonstration of the “black light” and the fluorescent powder before the jury, and to testify as to the test of the defendant’s hands that he had made on the night of the alleged sale. The record shows that, after orally testifying about the operation of the light and powder, Officer Rigoni turned it on and tested the hands of the jurors under it. He then dusted a dollar bill with powder which he testified was the same kind as was used on the night of the arrest, and passed the dollar bill among the jurors. He then tested the jurors’ hands under the “black light,” and pointed out that the tips of their fingers were green. Officer Rigoni testified that the “black light” was in the same condition as it was on the night of the arrest.

Defendant contends that the court was in error in allowing this demonstration because Officer Rigoni was not qualified as an expert, and because the demonstration was not adequately controlled. He objects on the same grounds to the admission of testimony as to the test performed on the defendant’s hands on the night of the arrest.

Our interpretation of the evidence does not warrant the conclusion that an expert was required for the performance of this simple test, or to interpret its results. It is well established that the trial judge has a wide degree of discretion in ruling upon the permissibility of demonstrations in the courtroom, and upon the admissibility of testimony relating to experiments performed outside of court. McCormick on Evidence, ch 20, § 169 (1954). We do not consider the decision of the trial court in this case to be an abuse of that discretion, even considering the fact that the defendant did not receive notice before the trial that the State would make such a demonstration.

The next contention made by the defendant is that the informer’s testimony was not corroborated, and that the conviction should therefore be reversed on the authority of People v. Bazemore, 25 Ill2d 74, 182 NE 2d 649. In that case, the arrest was made two months after the alleged sale; there was no police surveillance of the transaction whatever; and nothing was offered in corroboration of the informer’s accusation that the defendant was the seller. In the case at bar, the informer’s testimony was corroborated by the fact that fluorescent powder was found on the defendant’s hands. Furthermore, the police officers, while they did not see the actual transaction, maintained close surveillance of the tavern, and arrested the defendant minutes after the sale allegedly occurred. These facts distinguish this case from Bazemore. See also People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282.

The defendant next contends that the trial court’s refusal to allow him access to the minutes of Anderson’s testimony before the grand jury constitutes reversible error under the holding of our Supreme Court in People v. Johnson, 31 Ill2d 602, 203 NE2d 399. In that case, a prosecution for rape, defense counsel was denied access to the testimony of the prosecutrix before the grand jury. The Supreme Court found that there were discrepancies and alleged improbabilities in the testimony of the prosecutrix at the trial, and that her testimony was vital to the State’s case. In the case at bar, we have examined Anderson’s testimony at the trial and do not find any improbabilities or discrepancies. Furthermore, the State has filed a supplementary record containing Anderson’s testimony before the grand jury, and we find nothing in that testimony which is at all inconsistent with Anderson’s testimony at the trial. We therefore conclude that the defendant was not prejudiced by the court’s refusal to grant him access to the grand jury minutes.

Defendant further contends that it was reversible error for the court to permit Officer Rigoni to remain in the courtroom during the testimony of the informer Anderson without requiring Rigoni to testify first. In People v. Miller, 26 Ill2d 305, 186 NE2d 317, the court held that it is not reversible error for a trial judge in the exercise of sound judicial discretion to exempt a police officer from an order excluding all witnesses, in the absence of a showing of prejudice to the defendant. The court observed that such was the practice in the Criminal Court of Cook County, and went on to hold that to show prejudice the defendant must show more than the mere fact that the officer had an opportunity to hear the complaining witness testify before him. 26 Ill2d at 307, 308.

In the case at bar, defendant has made no showing of any prejudice resulting from the presence of Officer Rigoni in the courtroom during the testimony of Anderson. Therefore the holding in Miller, which is binding upon this court, is dispositive of this contention.

The defendant next alleges that the admission of hearsay evidence in the preliminary hearing in this case was erroneous and materially prejudiced his rights. Officer Bigoni, the only witness testifying at that hearing, related to the court some of the statements made to him by the informer, Anderson. The defendant contends that if this hearsay evidence had been rejected, the State would have been forced to produce Anderson himself, and the defense would have had a valuable opportunity to cross-examine him.

We have not been referred to, nor have we found, any authority dealing directly with this problem. In People v. Morris, 30 Ill2d 406, 197 NE2d 433, our Supreme Court considered the question of whether the State was obliged to furnish counsel to an indigent defendant at the preliminary hearing, and stated:

A preliminary hearing in Illinois is not a “critical stage” where rights or defenses must be raised or lost, and neither is it a proceeding at which pleas are made or received. Bather, the scope and purpose of preliminary proceedings are in general to ascertain whether a crime charged has been committed and, if so, whether there is probable cause to believe that it was committed by the accused, (14 ILP, Criminal Law, sec 171). Even then a finding of probable cause is not binding upon a subsequent grand jury. These things being so, we see no basis for saying that the right to counsel arises upon preliminary hearing, or that fundamental fairness requires it. (30 Ill2d at 411.)

Similarly, we find that fundamental fairness does not require that hearsay evidence be excluded at the preliminary hearing. Our Supreme Court made clear in People v. Jones, 19 Ill2d 37, 166 NE2d 1, that an indictment cannot be challenged on the grounds that it was based on testimony which was in part or wholly hearsay. We see no reason to apply a more stringent rule upon the preliminary hearing, the purpose of which, at least in this case, is to determine whether the defendant is to be held over for grand jury proceedings.

The defendant also assigns as error the trial court’s refusal to order the court reporter to read back, during the cross-examination of Officer Rigoni, statements made by Rigoni during his direct examination which defense counsel thought were contradictory. The control of the conduct of a trial is generally within the discretion of the trial judge. From our review of the record in this case, we conclude that the court’s refusal to order the court reporter to read back prior testimony was not an abuse of that discretion; and furthermore that the court patiently gave defense counsel wide latitude in matters which counsel wanted to bring to the attention of the jury.

Defendant also contends that remarks made by the Assistant State’s Attorney in closing argument were improper and prejudicial. The remark to which he takes particular exception was, “There was only one way for him to get that powder, ladies and gentlemen, that was from the money.” No objection was made during the trial to this remark, and it is well established that such an objection cannot be raised for the first time on appeal. But in any case, even if a timely objection had been made, we find nothing improper in the remark.

A final contention made by the defendant is that the failure of the court reporter to supply him with a transcript of his trial until more than a year after its conclusion constituted a denial of due process of law and of equal protection of the laws. Although this delay, and the circumstances occasioning it, are regrettable, we see no merit to the contention that it should be elevated to the status of a denial of due process or of equal protection, and defendant has cited no authority supporting such a conclusion.

By reason of the refusal to permit cross-examination of the informer as to criminal charges then pending against him, the conviction must be reversed and the cause remanded to the Criminal Division of the Circuit Court of Cook County for a new trial.

Reversed and remanded.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William T. Foster, Defendant-Appellant.
    Gen. No. 50,842.
    First District, First Division.
    June 13, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel) for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a bench trial, defendant was found guilty of the offense of unlawful possession of a narcotic drug. He was sentenced to the penitentiary for a term of two years to two years and one day. On appeal, defendant contends (1) his motion to suppress the evidence should have been granted; (2) his conviction “rests on a statement elicited from him by the police without informing him of his right to counsel or his right to remain silent and thus in violation of his Sixth Amendment rights”; and (3) the evidence failed to prove him guilty beyond reasonable doubt.

On July 29, 1964, a search warrant was issued for the search of the person of ZaZa Doe, M/C, Age 31 or 32, dark complexion and living in apartment 309, 6128 South Woodlawn Avenue, Chicago. The police officers proceeded to 6128 South Woodlawn and forced their way into apartment 309, where they found a woman known as Zelma. They searched the apartment and found a package containing narcotics. While two of the officers remained in the apartment, Officer Parker went down to the lobby of the building, and after approximately fifteen minutes, defendant arrived. After a conversation with Officer Parker, they proceeded to apartment 309.

Officer Parker testified that when he and the defendant arrived in apartment 309, they found his two partners and “a woman known to me as Zelma, who also identified herself as the wife of the defendant. . . . Upon arriving at the apartment I was notified by my partner, Detective Nance, that a tinfoil package had been recovered. A close examination of the tinfoil package revealed six smaller tinfoil wrapped packages containing white powder. At that time in reference to the six tinfoil wrapped packages containing white powder I confronted the defendant with them. In addition, I handed him the search warrant which indicated he was selling narcotics from this apartment. I asked him with reference to the six packages, what did he know of them. At that time he stated the six packages were his, he had them for his own personal use, and also for the use of his wife.”

Officer Parker further testified that later that day in the squad room of the Narcotics Section at 1121 State Street, he had another conversation with defendant— “I again confronted the defendant with the six aforedescribed six tinfoil packages and asked him with regard to them whose were they. At that time he stated the stuff was his and he had it for his own personal use.”

Officer Willis Nance testified that on July 29, 1964, he and Officers Parker and Williams gained entrance to apartment 309, 6128 Woodlawn Avenue, after identifying themselves to the lady inside. They searched the apartment after showing a copy of a warrant and found six tinfoil packages wrapped in a rubber band. Nance further testified that he was present about fifteen minutes later, when Officer Parker questioned defendant. “Mr. Parker asked Mr. Foster whose drugs, whose tinfoil packages they were, and he stated that they were his, Mr. Foster did, for him and his wife’s personal use, sir.” Later in the day, Nance was present at the conversation between Officer Parker and defendant. “Detective Parker asked Mr. Foster again was the tinfoil packages his. Mr. Foster admitted all along, from the time that we entered the apartment, that they were his and his wife’s, sir.”

The six tinfoil packages were received in evidence, and it was stipulated that they contained heroin.

Defendant testified that prior to July 29, 1964, he resided at 6126 Woodlawn, an apartment building. He and Zelma occupied an apartment that consisted of a room and a half. Zelma paid the rent “the majority of the time.” They had the use and occupation of the apartment together, and Zelma had a key. Defendant usually left the apartment early in the morning. He was not in the apartment on the night of July 28. He returned to the apartment at about 2:30 in the afternoon of July 29. At that time, he did not have any narcotic drugs. Zelma was a narcotics addict, but defendant was not — he had been in 1962. The narcotic drugs found in the apartment did not belong to him, and to the question, “Did you have knowledge of their presence in your apartment?” he replied, “No, I didn’t.” Defendant and Zelma shared the apartment equally, and she had as much use and control over it as he did. Defendant stated, “We helped one another. She shared most of the expenses. . . . Well, she is a hustler, a prostitute.”

Defendant denied that he told Officer Parker that the narcotics were his and his wife’s.

After both sides rested, the trial court reviewed the testimony and remarked, “Well, the Court has listened to this case very attentively. There isn’t any question in the Court’s mind about their complete constructive possession. Here is a man who lived with Zelma four months in Apartment 309. Well, it is more of a self-serving declaration that he said he was not there on the 29th, but he was there the day before, the 28th, and that he had lived with her for four months. When the police officers went to the apartment and they went there with a search warrant, and when the defendant was questioned in the presence of Zelma, when Zelma was available, the defendant at that time said these six tinfoils which later on proved to be heroin, belonged to him. ... I say that under the evidence offered here that the defendant has been proved guilty beyond a reasonable doubt and the Court so finds the defendant guilty of possession of narcotics as charged in the indictment.”

Defendant was not eligible for probation. The court, on the recommendation of the State, sentenced defendant to a minimum term.

Defendant’s first contention is that his motion to suppress the evidence and quash the search warrant should have been granted on the grounds that the warrant was defective, since defendant testified that he lived at 6126 rather than 6128 Woodlawn and, also, since the warrant was returned “not executed.” Cited in support is People v. Martens, 338 Ill 170, 170 NE 275 (1930), where it is said (p 171):

“It is not a debatable question in this State that a search warrant must contain a description of the premises to be searched so specific and accurate as to avoid any unreasonable or unauthorized invasion of the right of security, and that it must identify the premises to be searched, in such manner as to leave the officer in no doubt, and no discretion must be left him, as to the premises to be searched, and that any evidence obtained under an unreasonable and unlawful search and seizure is not competent.”

As to this contention, the State argues that the search was proper. Cited in support is People v. Watson, 26 Ill2d 203, 186 NE2d 326 (1962), where the court said (pp 205, 206):

“Constitutional requirements relating to searches are satisfied in these cases if the warrant describes the premises to be searched with reasonable certainty, and a technical description is unnecessary. ... A warrant is sufficiently descriptive if it enables the officer, with reasonable effort, to identify the place.”

We believe the motion to suppress was properly denied. Although defendant did testify that he lived in apartment 309 at 6126, he also testified that he lived with Zelma, who was found in apartment 309 at 6128. Both police officers testified that they went to 6128, the warrant address, where they found Zelma and the narcotics. This was the same apartment to which defendant testified that he was taken and searched. “I was taken up to my apartment and I was searched. Wasn’t nothing found in my presence. Was another officer up there in the apartment with my wife, I mean my common law girl friend, and the house had been searched and everything, the door had been broken in. . . . The night latch and thing had been broken off.”

As to defendant’s contention that the warrant is void, since it was returned marked “not executed,” the failure of the police officers to make a proper return of the warrant does not render void either the search warrant or the search made under its authority. People v. York, 29 Ill2d 68, 193 NE2d 773 (1963).

Defendant’s next contention is that his constitutional rights were violated, since he was not informed that he had a right to remain silent and to have counsel when he admitted ownership of the narcotics. Authorities cited include Escobedo v. Illinois, 378 US 478 (1964).

The State admits that at the time defendant made the two statements testified to by the police officers, “defendant was not apprised of his right to remain silent or his right to counsel.” Both statements were received in evidence without objection. We believe the pronouncements made in People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964), are pertinent here. The court said (p 380):

“In the present case the trial court considered testimony of the failure to warn the accused, and there is no evidence that defendant requested the assistance of counsel. Under all the facts and circumstances of this case, we hold that the failure to warn the accused did not compel a rejection of the confession. „ . .
“We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his right to remain silent before his admissions of guilt.”

In People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965), the court stated (p 302):

“This court, however, in People v. Hartgraves, 31 BI2d 375, has aligned itself with those courts which have construed Escobedo to be limited to the peculiar facts of the case, and have rejected it as promulgating the sweeping rule that a confession may not be received if made by an accused without counsel, or unless the right to counsel has been intelligently waived.”

In the instant case, defendant’s first statement that the narcotics belonged to him was made to the police officers immediately after the narcotics were found. Defendant repeated this statement at the police station. No claim is made either that any force or coercion was used in eliciting these statements, or that he made any request for assistance of counsel. Under such circumstances, it was not error to receive these statements in evidence at the trial.

Defendant further contends that “the evidence properly received in evidence totally fails to prove beyond all reasonable doubt that defendant possessed the narcotics.” Defendant argues that “there is not one iota of evidence which demonstrates that said items were jointly possessed by defendant and his girl friend.” However, this contention is based on the argument previously rejected, that defendant’s alleged admissions should not have been received in evidence. Both police officers testified that defendant admitted to ownership of the narcotics, and defendant’s denial at trial that he made such statements raises a question only of credibility, which the court resolved against defendant.

In a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to a defendant’s guilt. People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); People v. Boney, 28 Ill2d 505, 510, 192 NE 2d 920 (1963).

In applying that rule to the proof in the instant case, we find" there was sufficient proof of the offense beyond a reasonable doubt. Therefore, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.