author: MR. PRESIDING JUSTICE MURPHY

text:
    In the Matter of the Estate of Howard R. Habel, Deceased, Defendant-Appellee, v. In re Petition of Ralph Hilgers and Raymond Hilgers, Petitioners-Appellants.
    Gen. No. 51,701.
    First District, First Division.
    October 9, 1967.

      Sherman & Lewis, of Chicago (Irving S. Abrams and Maurice L. Lewis, of counsel), for appellants.
    Gregory A. Gelderman, pro se, of Chicago, special administrator of respondent-appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Petitioners, Ralph Hilgers and Raymond Hilgers, appeal from an order of the Probate Division of the Circuit Court, which denied their petition to be declared the owners of stock which stood in the name of the decedent at the time of his death. Petitioners claim that the decedent purchased the stock with funds which came from their grandmother as a gift to them.

Howard R. Habel, the maternal uncle of the petitioners, died on March 27,1965, leaving a will dated May 12, 1961, which was admitted to probate. Petitioner Raymond Hilgers and Frank F. Pipal were named as coexecutors. Included in the inventoried assets of the estate were 200 shares of Standard Kollsman common stock. The instant petition alleged that the decedent purchased this stock with funds which came from a joint savings account which stood in the name of their grandmother and the decedent (her son), with instructions from the grandmother to the decedent to deliver the proceeds of the account to the petitioners. At the hearing of the petition, the estate was represented by Gregory A. Gelderman as “special administrator.” The evidence of petitioners consisted of the testimony of Ethel Hilgers, sister of the decedent and mother of the petitioners, and Raymond Hilgers, and a number of exhibits. No evidence was offered on behalf of the estate. The court entered an order denying and dismissing the petition.

Raymond Hilgers testified that after the death of the decedent, he went to decedent’s home and among decedent’s papers he found five savings account books (Exhibits 1 to 5) and a document in decedent’s handwriting (Exhibit 6), all of which were received in evidence.

The savings account books (Exhibits 1 to 5) were: No. 1, a Bell Savings and Loan Association account established July 1,1959, in the name of “Florence A. Habel or Howard Habel,” balance $8,000; No. 2, a Bell Savings account established March 1, 1962, in the name of “Howard R. Habel,” balance $8,000; No. 3, a Belmont-Central Savings and Loan Association account established April 25, 1957, in the name of “Florence Habel and/or Howard R. Habel,” balance $6,502.50; No. 4, a Belmont-Central savings account No. 31860, established February 23, 1962, in the name of “Howard Habel or Raymond Hilgers,” initial deposit being $2,250; No. 5, a Belmont-Central Savings account No. 31861, established February 23, 1962, in the name of “Howard Habel or Ralph Hilgers,” with the initial deposit being $2,250. Exhibit 6 was a document in the handwriting of the decedent, dated November 15, 1963. It itemized decedent’s assets and included as item 6 “Stocks in Standard Kollsman.” At the end of the list of assets was the following declaration in the handwriting of the decedent: “The Standard Kollsman and H. M. Bulsby Stock are to go to Ray and Ralph (Used Grandma’s Money to Purchase).”

Mrs. Ethel Hilgers testified that she was a sister of the decedent and the mother of the two petitioners, Raymond and Ralph. At the time of the death of her mother (January 30, 1962), there was a savings account in the Bell Savings and Loan Association in the name of “Florence A. Habel or Howard Habel, as joint tenants with the right of survivorship,” (Exhibit 1), and a savings account in the Belmont-Central Savings and Loan Association in the name of “Florence Habel and/or Howard R. Habel,” (Exhibit 3). The money deposited in both accounts was her mother’s money.

Mrs. Hilgers further testified that in February 1962, shortly after her mother’s death, her brother, Howard Habel, came to her and told her he had the two bank books and he was going to do “as she [his mother] said he should do. He said: the money in the Bell Savings was to go to his use as long as he lived. The money in the Belmont Bank was to go to the boys and paying of her funeral expenses. At that time we went to the bank and he put the money in the boys’ names. I went with him at the time that he opened up the accounts at the Belmont Bank. The accounts were opened in both his and each one of the boys’ names. I was present when this was done. Petitioners’ exhibits 4 and 5 for identification are the books that were given to me at that time.” Some time later he said the money could make more on something other than bank interest, and he suggested buying “Standard Kollsman stock,” where one of her sons was employed. She stated petitioners’ Exhibit 6 was in her brother’s handwriting and bore his signature.

On cross-examination, Mrs. Hilgers testified she never discussed money matters with her mother, and “I knew she had money in both those savings accounts, but my brother came to me and he told me what her wishes were, after she passed away.” As to the Belmont-Central bank account, her brother said “that money was for the boys and to pay the funeral expenses, and some other expenses like headstones and things like that,” and that is what the account was used for. She was present when the two joint accounts were opened for her sons, and the books “were kept in Howard’s possession,” and were in his possession when he died. He told her “he was buying Standard Kolls, the boys’ share of it.” The stock was in his name and in an account at a broker’s office, which was never changed over. She did not know why it was not changed over to the boys, and “he left that note in with his belongings that it was the boys’.”

Also received in evidence was a photostatic copy of the stock record of Howard R. Habel with Dean Witter and Co. This statement shows the purchase of 200 shares of Standard Kollsman stock on June 8,1962, at a price of $21 per share, at a total cost, including commission, of $4,256. A payment of $4,256 was received on June 11, 1962. Exhibits 4 and 5, the Belmont-Central joint account books of the decedent and the petitioners, show withdrawals of $2,031.80 from each of the accounts on June 30, 1962, a total of $4,063.60. The statement shows the 200 shares were delivered under date of June 22,1962.

Petitioners contend that the money deposited on February 23, 1962, in the Belmont-Central Savings and Loan Association accounts was a gift to them by their grandmother, and that the Standard Kollsman stock was purchased with money that came from these accounts, and a resulting trust of the stock arose in their favor.

The special administrator contends that the petitioners failed to show by clear and convincing evidence that their grandmother, Florence Habel, made a gift to them of the funds on deposit in said joint account, in the names of herself and' son, Howard Habel; that failing to do so, Howard Habel could not become a trustee of the funds for the petitioners; that the 200 shares of stock in Standard Kollsman purchased by Howard Habel on June 8, 1962, belonged to him during his lifetime and became a part of his estate upon his death, and that the trial court was correct in so holding.

After considering the theories and supporting authorities offered by both sides, we believe the guidelines to be used are found in the “joint account” and “resulting trust” pronouncements of our Supreme Court.

As to “joint accounts,” in Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470 (1964), it is said (p 590):

“It is implicit in Wubbena that a prima facie presumption of donative intent exists where the proof shows that the making of the deposit and the execution of the contract is in conformity with the statute. As we stated in recognizing the increased use of joint tenancy accounts and legislative relaxation of rules pertaining to them: ‘Public policy would seem to require the adoption by the courts of a more liberal and practical view of these common transactions.’ (Frey v. Wubbena, 26 Ill2d 62, 66.) The legislative policy to treat the joint account as a useful technique for transferring intangibles dictates that the estate or other person claiming against the survivor should have the burden of disproving intent on the part of the decedent, and the degree of proof required to void the presumption should be clear and convincing. This would add certainty to the law and at the same time protect a depositor’s estate where the joint account was created without donative intent, for example where the account was opened for the convenience of the depositor as in Schneider. To hold that a lesser degree is required or that the burden shifted would tend to make every joint tenancy account suspect and would promote instability rather than stability of ownership. A personal representative of a deceased joint tenant should not be constantly faced with the risk of charges of mismanagement for failure to litigate each joint account to which it or his decedent was a party.
“We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

Applying the foregoing principles to the original Belmont-Central account, and after taking into account the family relationship, the informal character of the arrangement, the acts and declarations against interest made by decedent to his sister after the death of their mother, we conclude that the evidence is clear and convincing that at the creation of this account the “donative intent” clearly expressed by Mrs. Habel to her son was that a gift of the account to the petitioners, her grandsons, was intended, subject to the payment of funeral expenses. No gift was intended by Mrs. Habel to her son, and he made no claim to the account. When the decedent took possession of the funds of the original Behnont-Central account, after the death of his mother, his subsequent actions indicated that he accepted the funds as a fiduciary, with an obligation arising out of the confidence reposed in him by his mother to faithfully follow her instructions. Consistent with the instructions of his mother, as decedent informed his sister, and in her presence, defendant simultaneously established new joint accounts in Belmont-Central, of equal amounts of $2,250, with each of the petitioners. Although the record does not indicate the reason for the establishment of joint accounts by the decedent with his nephews, a legal interest then arose in the petitioners to the accounts. The evidence indicates that decedent used the balance of the original account for the payment of his mother’s funeral expenses, approximately $1,500.

On direct examination, Mrs. Hilgers testified that the savings account books representing these two new accounts were then given to her. That was corroboration that the decedent was making no claim to the account but was following the instructions and donative intent of his mother, expressed when the original Belmont-Central account was established.

Considered next is decedent’s purchase of the 200 shares of stock of the Standard Kollsman Company. Mrs. Hilgers testified that decedent suggested buying the Standard Kollsman stock in order to “make more on something other than bank interest.” Petitioners contend that the funds used in purchasing the stock came from their Belmont-Central joint savings accounts and, therefore, a resulting trust arose in their favor in the stock.

Resulting trusts, as a rule, generally arise where one person furnishes the consideration and the title is taken in another. In Hanley v. Hanley, 14 Ill2d 566, 152 NE2d 879 (1958), it is said (p 571):

“A resulting trust arises by operation of law and is founded on the presumed intent of the parties ascertained from their acts and attendant facts and circumstances, and usually comes into existence where one person furnishes the consideration, or an aliquot part thereof, for the purchase of property while the title is taken in the name of another . . . , and it arises, if at all, at the instant legal title is taken and vests. . . . Acts of the alleged trustee or equitable owner subsequent to the taking of title, have no bearing upon the question of whether a resulting trust was raised. ... To justify the declaration of such trust, the evidence must be clear, convincing and unmistakable. . . .”

As to resulting trusts, in 89 CJS 940, it is said:

“They are creatures of equity and are based on the equitable doctrine concerning consideration, the doctrine that valuable consideration and not legal title determines the equitable title or interest. . . .
“The doctrine of resulting trusts in all of its phases applies alike to personal and to real property. The trust may arise as to a part of the property or a part of the interest therein, and not as to the residue, according to the intent existing in each particular case.”

On page 945:

“A resulting trust arises from, or is created by, the facts and circumstances of the transaction, which need not be the same in all cases; and in determining whether a resulting trust has been created, each case is to be decided on its own facts, and the doctrine of resulting trust will be applied wherever the facts are such as clearly to invoke its application. Among other situations a resulting trust has been held to arise where a person comes into possession and control of the property of another; where money is placed in the hands of one person to be delivered to another. . . .”

On page 948:

“Since, however, a resulting trust is designed to carry the presumptive intention of the parties into effect, not to defeat it, it must be consistent with the intention of the parties at the time of the acquisition of the property and will not be presumed or implied unless taking all the circumstances together it is the fair and reasonable interpretation of their acts and transactions.”

Also, in determining whether the requirements for a resulting trust are present, it is proper to take into account the family relationship of the parties and the informal character of their arrangement. Merschat v. Merschat, 1 Ill App2d 429, 437, 117 NE2d 868 (1954).

Granting there is a slight chronological variance between the dates of the purchase of the stock and the withdrawal of the funds from the joint accounts, we believe that the record reflects clear and convincing evidence that the purchase of the Standard Kollsman stock was made for the benefit of petitioners with the use of funds which decedent withdrew from the Belmont-Central joint savings accounts. This conclusion is buttressed by the testimony of Mrs. Hilgers that her brother advised the purchase of the stock and corroborated by Exhibit 6, in which the decedent stated that the stock was to go to “Ray and Ralph” and that he “Used Grandma’s Money to Purchase.”

We find that although the 200 shares of Standard Kollsman stock were placed in the name of the decedent, the decedent did not intend to assert ownership and a resulting trust in favor of petitioners arose at the time of the purchase of the stock. Therefore, the stock did not become part of decedent’s estate and should be delivered to petitioners.

For the reasons given, the order of the Circuit Court is reversed and the matter is remanded to the Circuit Court with directions to take further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

BURMAN and ADESKO, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Finney, Defendant-Appellant.
    Gen. No. 50,958.
    First District, Fourth Division.
    October 16, 1967.

      Gerald W. Getty, Public Defender of Cook County (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, David Finney, in Count I of the indictment was charged with the crime of burglary, and in Count n with the possession of burglary tools. The jury returned verdicts of guilty on both counts, and on September 9, 1965, the court sentenced the defendant to the penitentiary for five to seven years on Count I, and for five to seven years on Count n, the sentences to run concurrently. The evidence shows the following uncontradicted facts:

On January 16, 1965, between 8:25 and 9:00 a. m., Mrs. Jane Schumpert left her apartment at 1137 Oak Avenue in Evanston, Illinois, to drive her husband to classes at Northwestern University. She returned about fifteen minutes later, unlocked the door and entered the apartment. As she was hanging her coat in the closet near the front door she realized she was not alone; when she turned around suddenly and saw a strange man standing near her she fainted. She testified that before she fainted she noticed that the man wore a dark jacket and a cap with a bill on the front. When she regained consciousness the man was bending over cautioning her to be quiet, whispering “Shhh, be quiet,” but she screamed loudly, and when sounds from the apartment above indicated that someone had heard her scream, the man left. Mrs. Schumpert immediately notified the Evanston police, and when they arrived their investigation revealed scratches on the door, indicating that entry had been made by a method known as a “case-knife job,” with an object such as a knife being forced between the door and the frame.

Further testimony introduced by the State was that of two women who lived in the same court building as Mrs. Schumpert, who saw a man they identified as the defendant passing through the courtyard. Mrs. Helen Baillie testified that she was washing clothes in the basement when she saw the defendant go through the court which faced the rear of the Oak Street building; that he was wearing a brown leather jacket with a fur collar and wearing an olive green cap. Mrs. Mary Van Mensbrugge stated that she was sweeping snow from the rear porch of the building in which she lived when she noticed the defendant passing through the courtyard beneath her windows, moving from the direction of Oak Street towards Maple. Her description of his clothing was the same as that of Mrs. Baillie.

Based on a description sent out over police radio, two Evanston police officers apprehended the defendant as he was walking several blocks from the scene of the burglary, and they took him in the squad car to 1137 Oak. After arriving there the officers were putting handcuffs on the defendant when a knife with a bent blade fell from the sleeve of his jacket. It did not fall to the ground, and the defendant bent his wrist to push it back up his sleeve. The police officer then took possession of the knife. He later testified that he had seen such knives used to slip between the wood on a door and bent so that by turning it the door could be unlocked. There was also testimony that this knife was turned over to another officer who fitted it to the scratches on the door and frame of the Schumpert apartment, and found it to be of the same general size of the instrument used to gain entrance.

The defendant was identified at the Evanston Police Station by both Mrs. VanMensbrugge and Mrs. Baillie, at which time he was alone and not in a lineup.

Officer Charles Kipferl testified that on January 16, 1965, while he was working with Officer Donald Washington, they received a radio description of “a colored youth with a knit jacket or sweater”; that the next message gave a description of “a colored man or Negro man with a brown leather jacket with a fur collar and a cap.”

A stipulation was entered into between the State and the defendant that at a preliminary hearing Mrs. Van Mensbrugge stated that she did not recall whether or not the defendant was wearing glasses when he passed beneath her in the courtyard.

Mrs. Schumpert was taken to the Evanston Police Station to make an identification; she also testified that on the afternoon of the same day she discovered that a cedar chest in her apartment had been opened and damaged, but that nothing was missing from it, nor was anything missing from her apartment. When she went to the station to make the identification the defendant was placed behind a screen and was asked to repeat the words, “Sh, be quiet ” about 20 to 40 times. She stated that he spoke the words loudly rather than in a whisper as they had been spoken in her apartment, and that one of the officers told the defendant to lower his voice. When he did so Mrs. Schumpert identified the voice as that she had heard in her home. The defendant here argues that the identification of his voice was not a proper or sufficient identification.

The defendant did not testify. He contends in this court that he was not proved guilty beyond a reasonable doubt, and that he did not have a fair trial. He argues (1) that the court erred in permitting the introduction of testimony by the complaining witness regarding the identification of the defendant from hearing his voice at the police station; (2) that the arguments of the prosecutor misled the jury; and (8) that the court refused to give an instruction proffered by defendant on circumstantial evidence.

OPINION:

1. The defendant bases his argument on Palmer v. Peyton, 359 F2d 199, in which case Judge Sobeloff stated that the identification of the defendant by his voice was improper. In that case the only testimony introduced upon which the defendant could properly be convicted was the voice identification. The situation in the case before us is much different. It has been held by both the Appellate Court and the Supreme Court that a defendant may properly be identified by his voice. Also see 2 Wigmore, Evidence (3rd ed) § 660; 1 Wharton, Criminal Evidence (12th ed) § 183. In Ogden v. People, 134 Ill 599, 25 NE 755, the court said at page 601:

“The statement by the witnesses for the prosecution of a fact which they ascertained through the sense of hearing was not the statement of mere matter of opinion, but the statement of a conclusion reached directly and primarily from an operation of the sense of hearing. A witness can learn and know facts by and through the exercise of his perceptive faculties, — his five senses, — and such facts he may state. (City of Aurora v. Hillman, 90 Ill 61.) It was a question of fact for the determination of the jury whether or not the testimony in question sufficiently established the matter of identification, . . .”

In People v. Barry, 371 Ill 468, 21 NE2d 561, it was held that the manner of identifying a defendant goes only to the weight of the identification evidence, and People v. Nichols, 378 Ill 487, 38 NE2d 766, is in accord. The same rule is laid down in People v. Thompson, 406 Ill 555, 94 NE2d 349. In the instant case the identification of the defendant by his voice was proper.

The defendant also urges that the identification was improper since it was not conducted in a lineup. In People v. Snell, 74 Ill App2d 12, 219 NE2d 554, Mr. Justice English stated at page 22:

“It certainly is preferable to have a witness, independently, identify the guilty party from among a group of unknown persons. People v. Sanders, 357 Ill 610, 622, 192 NE 697. However, failure to follow this practice goes only to the weight of the evidence and is not necessary.”

It has been repeatedly held that the manner in which an identification is made goes only to the credibility and weight to be accorded it and not to its admissibility. People v. Thompson, supra; People v. Barry, supra; and United States v. McCartney (7th Cir) 264 F2d 628.

Two witnesses, Mrs. VanMensbrugge and Mrs. Bail-lie, placed the defendant at the scene of the crime and described his dress as it was described by the complaining witness. Of course, it is true that the mere placing of the defendant at the scene of the crime, standing alone, would not be sufficient to convict, but such is not the situation here.

The defendant also attacks the credibility of the two State’s witnesses. It has long been held that a question of credibility is peculiarly within the province of the jury who had the opportunity to hear all of the testimony presented; and that after the trial where a judge has refused to disturb the verdict a court of review will not ordinarily substitute its judgment upon appeal. People v. Kirilenko, 1 Ill2d 90, 115 NE2d 297, and People v. Delorenzo, 300 Ill 124, 182 NE 783.

2. The defendant objects to the argument of the prosecutor. However, when the prosecutor’s argument is considered in connection with the argument of the defendant, the point made loses all meaning. The defendant argued first:

“There isn’t any evidence from David Finney. He did not testify. Under the law the defendant is not required to testify, under the law he is not required to prove his innocence, under the law the State’s Attorney is required to prove his guilt beyond all reasonable doubt and you, as jurors, are under your oath not to consider his failure to testify at all and certainly not to consider his failure to testify as creating any inference of guilt, but more than that, David Finney didn’t have to testify because David Finney pleaded not guilty and the plea of not guilty in this state denies every material allegation of the indictment, he denies it by his plea of not guilty.
“Now if he testifies what more would he say, he would deny it, presumably, but he has already denied it by his plea of not guilty.”

The Assistant State’s Attorney, in attempting to answer defendant’s argument, said that counsel for defendant had made the following statement:

“He says Mr. Finney — and I would not comment on this ordinarily — Mr. Finney, if he took the stand, would presumably deny it, however, we don’t know if Mr. Finney would deny it or what Mr. Finney would say to subject himself to cross examination, and I’m allowed fair comment on that because counsel said he would deny it, I would be interested to know what Mr. Finney would say subject to cross examination.”

An objection was then made which was overruled by the judge. In support of his objections to the State’s Attorney’s argument the defendant cites People v. Weinstein, 35 Ill2d 467, 220 NE2d 432. However, that case is not applicable under the situation which developed in this trial. The remarks of defendant’s counsel were of a character which could properly require the answer which was made by the State.

3. The defendant here argues that the court refused to give an instruction proffered by him on circumstantial evidence. After a careful reading of the instructions given by the court we reached the conclusion that the jury was properly instructed.

The State admits that the court erred in the sentence of the defendant. Under Count I of the indictment the defendant could have properly been sentenced to the penitentiary for not less than five nor more than seven years. Under Count II of the indictment and a finding of guilty of possession of burglary tools, the defendant could have been sentenced only from one to two years. Under those circumstances, this court will modify the sentence under Count II and reduce it to a period of one to two years, which sentence is to run concurrently with that under Count I of the indictment.

The judgment of the Circuit Court as to Count I of the indictment is affirmed; and as to Count II is affirmed as modified above.

Affirmed.

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

       Ill Rev Stats 1963, ch 38, § 19-1. Burglary.] (a) A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, house-trailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.

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


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Appellee, v. Donald Somerville and Marjorie Kullerstrand, Appellants.
    Gen. No. 51,415.
    First District, Fourth Division.
    October 16, 1967.

      Julius Lucius Echeles, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James A. Stamos, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

The defendants, Donald Somerville and Marjorie Kul-lerstrand, were indicted on November B, 1965. The indictment charged that on March 24,1963, they had committed the offense of theft in that they knowingly obtained unauthorized control over stolen property, to wit: $1,300 in United States currency, the property of Zayre of Bridgeview, Inc., knowing the said property to have been stolen by another, and intending to deprive said Zayre of Bridgeview, Inc., permanently of the use and benefit of said property, in violation of chapter 38, section 16-1 (d) of the Illinois Revised Statutes (1963).

The case was tried before a jury and a verdict was returned finding defendants guilty. Donald Somerville was sentenced to 2 to 10 years in the penitentiary, and Marjorie Kullerstrand was placed on probation for three years. In this court the defendants urge:

1) That they were twice put in jeopardy for the same offense;
2) That the State improperly suggested the existence of damaging evidence by means of cross-examination, but failed to impeach the denials of the defendants;
3) That the State improperly presented evidence outside the scope of cross-examination impugning the morals of the defendants.

A previous indictment had been returned against the defendants on March 19, 1964, which indictment charged them with committing the offense of theft on March 24, 1963, in that they knowingly obtained unauthorized control over stolen property, to wit: $1,300 in United States currency, the property of Zayre of Bridgeview, Inc., knowing the same to have been stolen by another in violation of chapter 38, section 16-1 (d), Ill Rev Stats 1968.

A jury trial was commenced on the first indictment and twelve jurors were duly impaneled and sworn on November 1, 1964, after which the trial was continued to the next day. On November 2, the State’s Attorney moved for a mistrial and to nolle prosse on the ground that the indictment did not allege a crime and was therefore void. The court granted the State’s motion over defendants’ objection. A juror was withdrawn from the box and a mistrial declared.

On November 3, 1965, a second indictment was returned, charging the defendants with the offense of theft on March 24, 1963, as set forth above. Defendants were arraigned on the second indictment on November 16,1965. Thereupon, the defendants filed a motion to dismiss the indictment on the grounds that they had previously been indicted on March 19, 1964; that a jury was selected and sworn to try the issues; and that “on November 2, 1965 the State made a motion to Nolle Prosse said indictment which was sustained over the objection of your petitioner.” The motion further recited: “4. That the only difference between indictment 64-916 and indictment 65-3017 is that the words ‘intends to deprive the owner permanently of the use . . . property’ have been added to the latter indictment.” The court denied the motion.

Before us defendants argue that since the trial was commenced under the first indictment (64-916) and a jury impaneled and sworn, the defendants were thereby placed in jeopardy, and consequently the court must discharge them. In their brief defendants state:

“Sec 3-4 (a) (3), Chap 38 states that ‘A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution ... (3) was terminated improperly after the jury was impaneled and sworn . . ” (Emphasis added.)

In order to have the statute apply it is necessary that the first prosecution be terminated improperly. In the Notes in Smith-Hurd Annotated Statutes to the section in question the statement is made:

“The point at which jeopardy attaches in a jury trial is generally considered to be that at which, in a court of competent jurisdiction and upon a valid indictment or information, the defendant has been arraigned and has pleaded, and the jury has been impaneled and sworn.”

In 22 CJS, Criminal Law, § 246, it is stated:

. . the general rule is that, in order that jeopardy may attach, there must be a valid indictment, . . . So, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put accused in jeopardy and bar another prosecution. . .”

In People v. Edge, 406 Ill 490, 94 NE2d 359, the court said at 493:

“To give a court jurisdiction in a criminal case, it is essential that the indictment or information charge the accused with a crime. (People v. Harris, 394 Ill 325; People v. Nickols, 391 Ill 565.) Moreover, where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged. (People v. Harris, 394 Ill 325; People v. Barnes, 314 Ill 140.)”

In People v. Harris, 394 Ill 325, 327, 68 NE2d 728, the court said:

“The essential elements of the crime of receiving stolen property as prescribed by section 289 of division I of the Criminal Code (Ill Rev Stats 1945, chap 38, par 492,) are: (1) that the property has, in fact, been stolen by a person other than the one charged with receiving it; (2) that the one charged with receiving it had actually received the property stolen or aided in concealing it; (3) that the receiver knew that the property was stolen at the time he received it; and (4) that he received the property for his own gain or to prevent the owner from again possessing it. People v. Dalke, 336 Ill 446; People v. Prall, 314 Ill 518; People v. Ensor, 310 Ill 483.”

The court also said:

“It has been held that where the statutory definition of a crime includes the intent with which the act was committed as an element of the offense, it is necessary that the intent should be alleged. In McCutch-eon v. People, 69 Ill 601, it was said: ‘Where the intent is mentioned as an element of the offense created by a law, it ought to be alleged

Without such an allegation the court held that the indictment does not set forth a crime as defined by statute. Also see People v. Goffman, 30 Ill2d 501, 198 NE2d 323.

Chapter 38, section 16-1, previously quoted in this opinion, states the requirements for an indictment or conviction of theft where the party obtains control over stolen property knowing the property to have been stolen by another. Under the rule laid down in People v. Edge and People v. Harris, supra, the first indictment was fatally defective and void. The court ruled properly in denying defendants’ motion to discharge defendants at the time of the trial of the second indictment.

The State introduced evidence that there was a robbery at Zayre of Bridgeview, Inc.; that about $22,000 was taken, $9,000 of which was dropped in the vestibule and recovered.

Leon Arnold, the State’s chief witness, testified that while drinking with one Douglas Aldridge on March 28, 1968, in the early evening he met Eddie Somerville, and that they went to Eddie’s home near Blue Island, where they found Paul Langusch, Eobert Somerville and his brother, Gail Somerville. Arnold further testified that they later robbed the Zayre store; that the next day Gail Somerville picked up Douglas and Arnold and drove them to the home of defendant Marjorie Kullerstrand, where they saw Eobert, Eddie and Donald Somerville and Paul Langusch. At that time Donald Somerville was a police officer in the City of Chicago. Arnold stated that when he was introduced Donald Somerville asked Aldridge how it went and Aldridge said “It was rough.” He further testified that Aldridge then asked if anyone knew how the man was who was shot and Donald Som-erville said he was okay. Arnold testified that they then “gave them what money we had and they put it on a coffee table”; that the money was counted, totaling $13,000, and divided as follows: Arnold, Aldridge, Lan-gusch and Eddie Somerville each received $2,500, and Eobert, Gail and Donald Somerville $1,000 each; that Donald said each should give Marjorie Kullerstrand $50 for the use of her home, and that Arnold, Aldridge, Eddie Somerville and Langusch each gave her $50 out of the money received.

The defendants put on certain alibi witnesses. Donald Somerville took the stand and in cross-examination was asked the following question by the Assistant State’s Attorney : “Do you know of your own knowledge, Mr. Som-erville, if your brother, Eobert, was ever a security officer at Zayre’s Department Store?” Defendants’ counsel objected; the court overruled the objection, and the witness answered, “No, I do not. I wasn’t that close to him.”

In this court the defendants argue that if it was shown that Eobert Somerville was in on the planning of the robbery, his employment as a security officer would in a manner tend to corroborate Arnold’s testimony. The argument is farfetched. It is difficult to see why there would be corroboration of Arnold’s testimony even if the question had been answered affirmatively. In any case, the witness stated that he did not know, and if the question was in error, it was not an error which would require reversal.

The defendants also contend that the State improperly questioned Virginia Kullerstrand, the daughter of defendant Marjorie Kullerstrand. Virginia had testified that she lived with her mother, and denied that on the date in question she saw six or seven men in the house, and denied seeing large sums of money on tables in the house. On cross-examination she testified that Donald Somer-ville had been to her home several times before March 24, 1968. The State then asked, “Did he ever stay overnight at your house?” Defendants’ counsel objected and the court overruled the objection, after which defendants moved for a mistrial, which was denied. The witness denied that Donald Somerville had ever stayed overnight at her home. The State’s Attorney then asked Virginia if she had ever told Officer Walsh that Donald Somerville had stayed overnight at their house on numerous occasions. The objection of counsel for defendants was overruled, and Virginia said she did not remember what she had told Officer Walsh. On rebuttal Officer Walsh testified that when he spoke to her on March 4, 1964, Virginia told him that Donald Somerville had spent the night in her home with her mother on numerous occasions. The question had been objected to and the objection overruled.

The defendants here argue that the question was irrelevant and prejudicial. In defendants’ brief it is admitted that if the question were relevant no question could be raised as to its prejudicial effect upon the jury. The defendants also argue that the question was beyond the scope of cross-examination, and again admit that if the question were relevant the objection would fall. The question was relevant.

Both Marjorie Kullerstrand and Donald Somerville had testified that Donald Somerville was not present in her home on March 24, 1963. In People v. McGovern, 307 Ill 373, 377, 138 NE 632, the court said:

“It is perfectly proper to inquire of a witness, in order to show his bias or prejudice, as to his relations with the accused and his interest in the result of the suit. (1 Wharton on Crim Evidence, — 10th ed— sec 477; Ross v. State, 71 Tex Crim 493.) It has been said that the feelings of bias and relationship of the witness are never collateral. (Underhill on Crim Evidence, — 2d ed — sec 222.) ”

It has been held that the latitude of cross-examination of even the defendant in a criminal case is controlled by the sound discretion of the trial court. People v. Gasior, 359 Ill 517, 195 NE 10. The holding in other jurisdictions is the same. Parsley v. Commonwealth (Ky), 306 SW2d 284 (1957).

The ruling of the trial court was proper. Finding no error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.

ENGLISH, P. J. and DKUCKER, J., concur.

       Ill Rev Stats 1963, c 38, § 16-1. Theft. A person commits theft when he knowingly:
      (d) Obtains control over stolen property knowing the property to have been stolen by another, and

        (1) Intends to deprive the owner permanently of the use or benefit of the property; or
      (2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
      (3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.

       This section of the then statute is substantially the same as the present one.

       Eddie Somerville was convicted of armed robbery and the conviction was upheld in this court in People v. Eddie Somerville, 88 Ill App2d 134.

       Robert Somerville, Gail Somerville, and Paul Langusch were previously convicted and their convictions upheld on appeal in People v. Somerville, 71 Ill App2d 381, 219 NE2d 116.


author: MR. JUSTICE BURKE

text:
    Greig J. Chambers, Plaintiff-Appellee, v. James Palaggi, Anthony Calace, and City of Chicago, a Municipal Corporation, Defendants, City of Chicago, a Municipal Corporation, Appellant.
    Gen. Nos. 51,867, 51,285.
    First District, Second Division.
    October 20, 1967.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Marvin E. Aspen, and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellant.
    Miller, Gorham, Wescott & Adams, of Chicago (John F. Arnold, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Greig J. Chambers, a minor, by his next friend, brought an action against the City of Chicago and two individual defendants, James Palaggi and Anthony Calace, for personal injuries occasioned by the alleged negligence of the defendants in the operation of a truck. In accordance with a jury verdict, a judgment was entered against defendants for $80,000. The court denied the City’s post-trial motion for a judgment notwithstanding the verdict, and in the alternative, a new trial. The City appeals.

The City’s post-trial motion was denied on December 2, 1965. Notice of Appeal was not filed until January 6, 1966. Thus, the Notice of Appeal was filed within sixty (60) days after the judgment became final. As a precautionary step the City also filed a Petition For Leave To Appeal (on November 30, 1966). There is no dispute about the right of the City to prosecute its appeal. In order to avoid confusion we have consolidated the Appeal and the Petition For Leave To Appeal. The title of the case has been changed to reflect the fact that plaintiff has reached his majority.

On September 26, 1957, plaintiff, who was thirteen years of age, emerged from behind a standing automobile at the intersection of Peoria Street, 88th Street and Vincennes Avenue, in Chicago. He was injured by a truck driven by Anthony Calace. The truck driver said the boy came from behind a standing automobile and was on top of him before he knew it. The boy said he first saw the truck when it was 47 feet away and he froze. There was a conflict of testimony as to whether he was walking or riding a bicycle. Admittedly, the boy could not see over the standing automobile while he was behind it.

The truck was owned by James Palaggi, who had entered into a truck rental agreement with the City, wherein he agreed to provide a truck service including a competent driver and his pay, all fuel, grease, oil, maintenance, repairs, licenses, permits, insurance, or other items of expense or equipment necessary to render a complete trucking service. In June 1957 Palaggi hired Calace to drive the truck. Palaggi provided his own gas and oil; the truck was repaired at private garages; Palaggi paid Calace to drive the truck; and Palaggi instructed Calace to park the truck near Calace’s home after finishing the job for the day. Palaggi testified that if the truck did not function he would have to provide a different truck. The truck was loaded by the City’s laborers and Calace would drive it to where the City’s foreman directed him, but he could take any route he wanted and no one from the City supervised his driving of the truck. Calace had delivered materials and tools to two locations the day of the occurrence, 102nd and Racine and 95th and Western. He picked up the load in the morning at 75th and Western, the City Yard. At the time of the mishap he was returning home from the job at 95th and Vincennes Avenue.

The contract between Palaggi and the City, which was introduced into evidence over the City’s objection, required that Palaggi maintain public liability and property damage insurance. Plaintiff, over the City’s objection, was allowed to show the jury that the contract required Palaggi to maintain insurance. He was also permitted, over objection, to elicit testimony that the insurance had been canceled prior to the occurrence and to introduce the notice of cancellation. Palaggi did not inform the City that the insurance had been canceled. The insurance was in effect at the time the rental agreement was made with the City. Plaintiff’s counsel was permitted to argue to the jury that the failure to maintain insurance was a factor in determining liability. After plaintiff rested he was permitted, over objection, to amend his complaint to state that the defendants, including the City, negligently permitted the truck to be driven upon the public highway in the area of the occurrence without having on file and in effect a good and sufficient indemnity bond or insurance policy as required by section 17 of the Illinois Motor Carrier of Property Act.

Over the City’s objection the court instructed the jury about the statutory provision that a contract carrier have on file with the Illinois Commerce Commission and in effect good and sufficient liability insurance policies and that “if you decide that a party or the parties violated the statute on the occasion in question, then you may consider that fact together with all other facts and circumstances in evidence in determining whether or not the parties were negligent before and at the time of the occurrence.”

The first point advanced by the City is that Palaggi’s failure to maintain insurance was not a proper basis for finding the City negligent. We agree. Palaggi had entered into an agreement with the City to provide truck service. He was required to maintain public liability and property damage insurance. After he entered into the contract but before the injury to the plaintiff his insurance was canceled. Palaggi did not inform the City of this fact. The failure to have insurance was neither an immediate cause nor a remote cause of plaintiff’s injury. It was not within the province of the jury to determine whether the statute was applicable to the case at bar. This was the function of the court. The failure of the City to enforce the Illinois Motor Carrier of Property Act against Palaggi does not make the City liable to the plaintiff for his personal injury. The failure of a municipality to enforce the provisions of a statute or ordinance does not subject that municipality to an action for damages. Adamczyk v. Zambelli, 25 Ill App2d 121, 166 NE2d 93; Locigno v. City of Chicago, 32 Ill App2d 412, 178 NE2d 124. The contract between the City and Palaggi whereby the latter agreed to provide the City with trucking service requires Palaggi and not the City to maintain insurance. The introduction into evidence as an element in the case of the provision for insurance and the instruction to the jury to the same effect constitute reversible error.

The City urges that the driver of the truck was not its employee and therefore it cannot be held liable for his acts at the time of the occurrence. Palaggi entered into a truck rental agreement with the City whereby he agreed to provide truck service, including a competent driver and his pay, all fuel, grease, oil, maintenance, repairs, licenses, permits, insurance, and other items of equipment necessary to render a complete trucking service. Palaggi provided his own gas and oil. He hired and paid Calace to drive the truck. He instructed Calace to park the truck near Calace’s home after finishing the job for the day. If the truck did not function Palaggi would have had to provide a different truck. At the time of the accident Calace was on his way home from work. He was not at that time engaged in any activity for the City. At the time of the accident Calace was acting under the instruction of his employer, Palaggi. We think that the court should have directed a verdict for the City.

Plaintiff states that the City is not in a position to contend that Calace was not its agent or servant because its answer consisted of general denials which were evasive and did not fairly answer the substance of the allegations denied as required by section 40 of the Civil Practice Act. The plaintiff maintains that the City in effect admitted that the driver of the truck was its agent. Section 42(3) of this Act states that all defects in pleadings, either in form or in substance not objected to in the trial court are waived. Plaintiff did not question the propriety of the answer in the trial court. The case was tried and the jury instructed on the basis that there was an issue as to whether at the time of the occurrence Calace was in the employ of the City. Plaintiff is not in a position at this time to assert that the City admitted in its pleadings that Calace was its servant at the time of the occurrence.

For these reasons the judgment against the City of Chicago is reversed and the cause remanded with directions to enter judgment notwithstanding the verdict for the City of Chicago and against plaintiff.

Judgment against City of Chicago reversed and cause remanded with directions.

LYONS, P. J. and BRYANT, J., concur.


text:
    People of the State of Illinois ex rel. Mirko Gasparas, et al., Plaintiffs-Appellees, Cross-Appellants, v. Village of Justice, a Municipal Corporation, etc., et al., Defendants-Appellants, Cross-Appellees.
    Gen. No. 51,715.
    First District, First Division.
    October 16, 1967.

      Schultz, Hennessy & McGrath, of Chicago (Bernard J. Hennessy, of counsel), for defendant-appellant Village of Justice, and Dean J. Sodaro, of Chicago, for defendant-appellant Board of Fire and Police Commissioners of Village of Justice.
    Walter C. Wellman, of Lyons, for plaintiffs-appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

In a two-count complaint, plaintiffs sought: (1) a writ of mandamus commanding the Village of Justice, its President and Board of Trustees, and the members of the Fire and Police Board of the Village of Justice, to grant civil service status to each of the plaintiffs, as members of the Village of Justice Police Department, in accordance with the terms of the Board of Fire and Police Commissioners Act, Division 2, Article 10 of the Illinois Municipal Code (Ill Rev Stats 1961, c 24, § 10-2); and (2) a declaratory judgment that the sole authority to appoint police officers of any kind or description in and for the Village of Justice since July 28, 1965, was the Board of Fire and Police Commissioners of the Village of Justice, and that any appointments to the Police Department made after July 28,1965, by the Board of Trustees were void.

In two separate judgment orders, the court denied Count I and granted Count II. The Village of Justice appeals and six of the plaintiffs cross-appeal from portions of the judgment orders. The Board of Fire and Police Commissioners does not appeal from any portion of the orders.

There appears to be no serious dispute as to the facts in this case. Section 10-2-1 of the Municipal Code (1961) provided that in every municipality with at least 5,000 persons and not more than 250,000, the president of the village, with the consent of the board of trustees thereof, shall appoint a board of fire and police commissioners. As a result of a special federal census taken July 28,1965, it was determined that the population of the Village of Justice was 5,252 persons. On August 5, 1965, and pursuant to the provisions of section 10-2-1 of the Municipal Code (1961), the Village of Justice passed and approved an ordinance establishing a board of fire and police commissioners, which specifically reserved the right of the President and Board of Trustees to make appointments to the office of Chief of Police.

On August 10, 1965, a new Board of Fire and Police Commissioners Act became effective, being sections 10-2.1-1 to 10-2.1-28 inclusive of chapter 24 of the Illinois Revised Statutes of 1965. On the same date and by the same Act, sections 10-2-1 to 10-2-25 were repealed. Section 10-2.1-28 of the new Act provided:

“The repeal of a statute or part thereof by this Act shall not affect any action pending or rights existing at the time this Act takes effect.
“The provisions of this Act insofar as they are the same or substantially the same as those of any prior statute, shall be construed as a continuation of such prior statute and not as a new enactment,”

On October 7, 1965, defendants Raymond Copp, Wallace Leack and Joseph Franks were appointed members of the Board of Fire and Police Commissioners by the President and Board of Trustees of the Village. Also on October 7, 1965, without the filing of written charges or a hearing, the President and Board of Trustees of the Village discharged the plaintiffs from their respective offices in the Police Department of the Village. Thereafter, the President and Board of Trustees appointed six police officers (not the plaintiffs), five on November 4,1965, and one on February 3,1966.

As to Count I, at the hearing in the trial court it was stipulated that plaintiff Mirko Gasparas was entitled to be certified to civil service status with the rank of Captain of Police. After hearing the evidence and in a judgment order, the court found that the six remaining plaintiffs “were part-time members of the Police Department of the Village of Justice on July 28th, 1965 and on August 10th, 1965 and at all times between said dates, and were not full-time members of the Police Department of the Village of Justice, Illinois, and therefore do not qualify for certification as members of the Police Department of the Village of Justice under either the statute as it existed on July 28th, 1965 nor the statute as it existed on August 10th, 1965 and thereafter.” As to these plaintiffs, the complaint was dismissed.

As to Count II, the court declared in a second judgment order that since the time the Village of Justice became subject to the provisions of the Fire and Police Commissioners Act on July 28, 1965, the President and Board of Trustees had “no right to appoint police officers in said Village of Justice of any kind or description, with the exception of the Office of Chief of Police, which right to make said appointment of said Chief of Police was reserved by the President and Board of Trustees in the ordinance creating the Board of Fire and Police Commissioners, passed and approved ... on August 5, 1965.”

The court further declared that the six specific police appointments (not the plaintiffs) made by the President and Board of Trustees after July 28, 1965, were void, and “that the only valid appointments of police officers of any kind or description in said Village of Justice since July 28, 1965, can only be made by the Board of Fire and Police Commissioners of said Village of Justice in accordance with the Board of Fire and Police Commissioners Act of the State of Illinois aforesaid.” It was further ordered that the President and Board of Trustees “be and they are hereby perpetually enjoined from making any appointments to the Police Department of the Village of Justice, Illinois, with the exception of the Office of Chief of Police of said Village.”

Considered first is the appeal of the Village from the foregoing parts of the judgment order based on Count II. It is the theory of the Village “that the Board of Fire and Police Commissioners Act of the State of Illinois applies only to full time policemen and firemen and that the President and Board of Trustees of defendant Village of Justice have a clear right to appoint part-time police officers.”

The Village contends that “the Board of Fire and Police Commissioners Act of the State of Illinois was never intended by the legislature to apply to part-time police personnel.” The Village agrees that “once a municipality becomes subject to the Board of Fire and Police Commissioners Act the Board of Fire and Police Commissioners is the only legal body that can appoint and hire full-time police officers. However, there is nothing in the Act which prevents a municipality through its Board of Trustees from employing police officers on a part-time basis.” The Village further asserts that neither the provisions of Chapter 24 nor any of the cases cited by plaintiff contain anything which would make part-time appointments of police officers illegal, and that “in 1965 the legislature saw fit to clearly state and we think, affirm, that the provisions of the Act apply only to full-time personnel. The legislature did not say that the only policeman who can be appointed in municipalities must be appointed on a full-time basis.”

To show that the legislature intended that the Act would only apply to “full-time personnel,” the Village points to the language of various parts of the Act, such as:

(1) Section 10-2.1-4, which states in part:

“Any full time member of a regular fire or police department of any municipality which comes under the provisions of this Division or adopts this Division 2.1 or which has adopted any of the prior Acts pertaining to fire and police commissioners, is a city officer.”

(2) Division 3 as it existed on July 28, 1965, in which it is said in section 10-3-1:

“ ‘ [P] oliceman’ means any member of a regularly constituted police department of a municipality, sworn and commissioned to perform police duties. . . . The term ‘policeman’ as used in this Section 10-3-1 does not include any of the following persons: Part time policemen, special policemen, night watchmen. . . .”

(3) Also, section 10-8-2 (repealed March 18, 1963), which provided for the creation of a pension fund for policemen in villages having a population of not less than 5,000 persons, which excluded:

“(d) Part time policemen, special policemen, night watchmen, . . . .”

The Village further notes that on August 10, 1965, section 10-2.1-26 was added to the Board of Fire and Police Commissioners Act and reads as follows:

“The provisions of this Division shall apply only to full-time firemen and full-time policemen of a regularly constituted fire or police department and not to any other personnel of any kind or description.”

From the foregoing, the Village argues that to interpret the Act “as precluding the appointment of part-time police personnel by the President and Board of Trustees would be doing violence to the plain meaning of the Statute.”

The Village further argues that there is nothing in section 10-2 of chapter 24, either before or after 1965, which excludes or makes illegal the employment of part-time police officers by the President and Board of Trustees of the Village of Justice, a municipal corporation, and “that the legislature foresaw and intended that villages and cities would employ police officers in a part-time capacity who would not be subject to the Board of Fire and Police Commissioners Act and who would not be entitled to civil service status.”

The Village asserts that the portion of the judgment of the trial court which declared that the President and Board of Trustees had no right to appoint police officers of any kind or description on or after July 28, 1965, and any appointments so made after July 28, 1965, are void, is erroneous and should be reversed.

On this issue, the right of the President and Board of Trustees of the Village to employ part-time police officers, the six plaintiffs who seek reinstatement as policemen contend that under the Act there can be no part-time or special officers and state, “A policeman is either a policeman, or he is not a policeman. It is respectfully submitted the Trial Court properly found that the President and Board of Trustees had no right to appoint any police officers, with the exception of the chief of police, since the Village of Justice came under the provisions of the Board of Fire and Police Commissioners Act.” Plaintiffs cite portions of section 10-2.1-4 of chapter 24, effective August 10,1965, which provides:

“The board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department, unless the council or board of trustees shall by ordinance as to them otherwise provide; ....
“The sole authority to issue certificates of appointment shall be vested in the Board of Fire and Police Commissioners. . . .
“Any full time member of a regular fire or police department of any municipality which comes under the provisions of this Division or adopts this Division 2.1 or which has adopted any of the prior Acts pertaining to fire and police commissioners, is a city officer.”

Plaintiffs assert that the above provisions are identical with the old Act, and cases construing this issue under the old Act are in point. Plaintiffs cite People ex rel. Cadell v. Board of Fire and Police Com’rs, 845 Ill App 415, 103 NE2d 666 (1952), where the mayor and city council (East St. Louis) attempted to appoint an assistant fire chief. The city was operating under the Board of Fire and Police Commissioners Act. There, it is said (p 418):

“All parties agree that the question before the court is to find the true intent of the legislature. A careful reading of the whole article 14 does not leave much doubt as to the objects and purposes sought to be obtained, viz: to provide a method by which the personnel of the fire and police departments of a city could be taken out of the realm of political patronage and given a tenure that depended upon merit in order to encourage the applications and retention of qualified persons for the said departments. Thus, the legislature has stated the public policy and the courts should be reluctant in allowing deviations therefrom.”

And on page 419:

“The courts have also held that: ‘It is a fundamental principle of statutory construction that the enumeration of certain things in a statute implies the exclusion of all other things’ and: ‘As a corollary of this rule it has been held that other exceptions than those designated by statute cannot be read into it under the rule expressio unius exclusio al-terius.’ In re Estate of Tilliski, 390 Ill 273, at 283. Section 4 of the article 14 above quoted is plain and unambiguous and designates only one exception, namely, ‘chief’ of the fire department.”

Also cited is Patteson v. City of Peoria, 386 Ill 460, 54 NE2d 445 (1944), where the Board of Fire and Police Commissioners appointed police matrons. The city refused to pay them the minimum salary provided by the Policemen’s Minimum Wage Act. The police matrons brought suit to recover the difference between what they were entitled to under the Minimum Wage Act and what they were being paid. There the court said (pp 466-467):

“In 1903 the legislature enacted the Fire and Police Commissioners Act. . . . The Police Matrons Act of 1897 was not repealed by the passage of the Fire and Police Commissioners Act in 1903. The effect of the later act was to remove from the operation of the earlier act all cities voting to adopt the provisions of the said act passed in 1903. In cities adopting its provisions all members of the fire and police departments are appointed exclusively by the board of fire and police commissioners. The appointments of plaintiffs Iva Hagerty and Grace Fleming to the positions of police matron can not be held void for want of power in the board of fire and police commissioners of the city of Peoria to make the same.”

Other cases cited include Eckerman v. City of Peoria, 336 Ill App 570, 84 NE2d 559 (1949), in which a stenographer and clerk, who was appointed by the mayor of the City of Peoria without an examination by the Board of Fire and Police Commissioners, was held not a policeman “within the provisions of the Policemen’s Minimum Wage Act.”

Plaintiffs also note that section 10-2.1-16, headed “Temporary appointments,” of chapter 24, provides:

“In order to prevent a stoppage of public business, to meet extraordinary exigencies, or to prevent material impairment of either the police or fire department, the board may make temporary appointments, to remain in force until regular appointments may be made under the provisions of this Division 2.1, but never to exceed 60 days.”

Plaintiffs assert this provision was intended to take care of emergencies which may arise, and the statute “definitely shows the intent and purport of the Legislature in outlawing part time or so-called special policemen.”

On this issue the defendant Board of Fire and Police Commissioners has not taken a position, and its brief is devoted to the issue of the status of the six plaintiffs on July 28, 1965 — whether they were full-time or part-time police officers.

In determining the guidelines to be applied on the issue of whether the legislature “foresaw and intended that villages and cities would employ police officers in a part-time capacity who would not be subject to the Board of Fire and Police Commissioners Act and who would not be entitled to civil service status,” we note that in Patteson v. City of Peoria, 386 Ill 460, 54 NE2d 445, it is said (p 463):

“A cardinal rule in the construction of a statute is that it should be so construed, if possible, that no word, clause or sentence is rendered superfluous or meaningless. ... In construing statutes, courts look at the language of the whole act, and if they find in any particular clause an expression not so large and extensive in its import as those used in other parts of the act, and, upon a review of the whole, they can collect from the more large and extensive expressions used in other parts, the real intention of the legislature, it is their duty to give effect to the larger expressions. . . . The rule of construction that the enumeration of certain things implies the exclusion of all others not mentioned is to be applied only when it appears to point to the legislative intent and never to defeat the plainly indicated purpose of the law-making body.”

In applying these rules of construction, we note that section 10-2.1-4 of the Act unequivocally states that “the board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department, unless the council or board of trustees shall by ordinance as to them otherwise provide. . . .” Section 10-2.1-16 provides for “temporary appointments” not exceeding 60 days, “to meet extraordinary exigencies, or to prevent material impairment of either the police or fire department.” After looking “at the language of the whole act” and examining “the more large and extensive expressions used” to determine “the real intention of the legislature,” we believe “the plainly indicated purpose” of the legislature was to make Division 2.1 an affirmative, all-inclusive vehicle for the appointment of all members of the “fire and police departments” of the municipalities coming within its terms. When the Village of Justice established its “Board of Fire and Police Commissioners,” it followed that the President and Board of Trustees had no right to appoint any police officers of any kind or description, either “part-time or full-time,” with the exception of the Chief of Police. Therefore, those parts of the judgment order included in the appeal of the Village of Justice should be affirmed.

Next considered is the cross-appeal of the six plaintiffs who, under Count I, sought to be reinstated and restored to the police department of the Village of Justice, with full civil service status. The plaintiffs assert that “the sole question involved in the Cross Appeal of plaintiffs is whether or not the six relators, who were found to be part time policemen by the Trial Court, were entitled to be blanketed in under the provisions of the Board of Fire and Police Commissioners Act.”

The six plaintiffs testified that they performed the regular duties of police officers, including work on traffic details, made arrests, wore a uniform, carried guns, handcuffs and nightsticks, and had stars which were issued by the Village. They were paid for the hours they worked and were not on a salary basis. They all had other and regular employment of a substantial nature. The hours worked for the Village were irregular, and the schedule was arranged for their convenience, depending upon the hours they worked at their regular employment. Their earnings from their regular employment were in excess of the earnings received from the Village, and most of them had fringe benefits from their regular employment. Some of the plaintiffs testified that if they had a choice between their regular employment and the employment with the Village on the terms and conditions under which they had been employed, they would have continued with their regular employment.

Plaintiffs’ exhibits included: a copy of the Village ordinance establishing the police department on January 2, 1958, consisting of a Chief of Police and “such other officers and policemen as from time to time shall be determined by the President and Board of Trustees” and providing: for the “office of policeman”; “Official Commission” cards showing the annual appointments of plaintiffs for a number of years, all prior to July 28, 1965; and a copy of an ordinance dated May 18, 1961, reestablishing the compensation for police officers on an hourly basis.

An exhibit of the Board of Fire and Police Commissioners was a copy of an ordinance passed and approved November 5, 1958, designating two members of the police department as full-time policemen and setting their daily hours of employment and monthly salary.

Exhibits of the Village included copies of the Village monthly report, showing the hours worked by the plaintiffs and amounts paid them.

The commission cards all terminated on April 30, 1965, and plaintiffs assert that since the President failed to reappoint the plaintiffs on May 1, 1965, “they continued in office until the Village came under the Board of Fire and Police Commissioners Act, and they were then entitled to tenure under the Act. They all continued to be employed by the Village during this period.” Plaintiffs also assert that the official commission cards made no mention of part-time policemen or special policemen or any other designation other than “a genuine policeman.”

Initially, plaintiffs contend that they were entitled to reinstatement under the provisions of the 1963 statute, in which section 10-2-7 of chapter 24 provides:

“Any member of the fire or police department of any municipality which has adopted or does adopt this Division 2 . . . shall become a member of the classified service of the fire or police department respectively, in the position held by him for one year immediately prior to the adoption of this Division 2 or said Act by such municipality, without examination.”

Also cited is section 10-2-17, which provides:

“[N]o officer or member of the fire or police department of any municipality subject to this Division 2, who has held that position for more than one year prior to the date this Division 2 becomes effective in that municipality, . . . shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.”

Plaintiffs state these sections have been construed to require that a person holding a position as a policeman for one year prior to the time the Act becomes effective is entitled to be blanketed in under the provisions of the Act and “cannot be discharged except for cause upon written charges filed before the Board of Fire and Police Commissioners.” Plaintiffs assert they “had been so employed, and no charges were filed against them before the Board of Fire and Police Commissioners.”

Plaintiffs’ authorities include People ex rel. Trapp v. Tanner, 10 Ill App2d 155, 133 NE2d 526 (1956), where the court said (p 162):

“In order to avoid the confusion of a complete turn-over upon the adoption of civil service, it was provided that those who had been in office for one year prior to the time the act became effective should be protected by law in their tenure of employment.”

Also, People ex rel. Siegal v. Rogers, 397 Ill 187, 73 NE2d 316 (1947), where it is said (p 194):

“Where a policeman has regularly performed the duties of a member of the police force for a period of one year prior to the adoption of the act and has been remunerated under the authority of an ordinance, a mere recital of the statute in a petition for a writ of mandamus to compel reinstatment obviates the necessity of showing that the office or position was created by ordinance, or that strict compliance was had with the statutory requirements or appointment to office. In short, the statute not only creates the office of municipal policeman, but also specifically directs that any person who has occupied the position of policeman for more than one year prior to the adoption of the act is a municipal officer and is entitled to the protection of the act.”

Plaintiffs contend there is nothing in the ordinance creating the department or the commission cards which refers to part-time policemen, and that the finding of the court that they were part-time policemen is manifestly against the weight of the evidence. They state that a schedule of working hours was prepared by the Acting Chief of Police, and that they were all ready, willing and able to work at any time, and that if they had been given full-time duties they would have met their obligation.

Plaintiffs maintain that “there is nothing in the evidence to show that there is any rule against moonlighting. By necessity, a man who was only given one or two days a week employment, had to seek other employment to provide for his own needs and the needs of his family.” The plaintiffs also point out the fact that “Defendants introduced no evidence to show that relators were appointed as part time policemen, and their answer, with the exception of the Board of Fire and Police Commissioners, admits they were all employed as ‘policemen’ as late as October 7,1965.”

The defendant Board of Fire and Police Commissioners states its theory of this case to be, “in so far as it applies to the six relators (plaintiffs), which portion of the case is all that is of interest to the Board of Fire and Police Commissioners, that said persons were at the time the Board of Fire and Police Commissioners Act became effective in the Village of Justice part-time police officers and had been in that status or position for a considerable period of time and remained in that status and position until after the Act was amended on August 10, 1965. Therefore, the Board of Fire and Police Commissioners of the Village of Justice believe that said persons are not entitled to the benefits of the Board of Fire and Police Commissioners Act for the reason that such Act was not intended to cover them when it became effective in the Village of Justice on July 28, 1965, and in addition that they were specifically excluded from the coverage of the Act when the Act of August 10, 1965, became effective.”

At the outset, we wish to observe that we consider the status claim of the plaintiffs to be the same whether the facts are viewed under the statute as it was on July 28, 1965, or on August 10, 1965. Although there were statutory references to “part-time policemen,” the references generally were of an exclusionary nature. Nowhere is there any specific authorization or designation for the appointment of a “part-time policeman.” The statutory references indicate the legislators were aware of the practices of municipalities using part-time policemen, but it is obvious that at no time was there any intention of authorizing or legalizing such a status.

Therefore, as plaintiffs agree that the statute does not provide for the appointment of a “part-time policeman,” it follows that unless they had a full-time status they were not included in any statutory “blanketing in” provisions. This conclusion is supported by section 10-2.1-26, entitled “Application of the Act,” which provides:

“The provisions of this Division shall apply only to full-time firemen and full-time policemen of a regularly constituted fire or police department and not to any other personnel of any kind or description.”

Plaintiffs’ case authorities, previously mentioned, obviously refer to a “full-time” or “regular” status and are of value here only if plaintiffs can be termed “full-time” policemen. As to that status, plaintiffs assert the finding of the trial court that they were not “full-time” policemen is against the manifest weight of the evidence. We do not agree. The record indicates that the trial judge gave careful attention to this point, and the evidence supports his finding that plaintiffs were “part-time members of the Police Department of the Village of Justice on July 28th, 1965 and on August 10th, 1965 and at all times between said dates.” Therefore, as there was no statutory authority for their employment as “part-time” policemen, it is obvious plaintiffs were not within the category intended to be protected by section 10-2-7, 10-2-17 or 10-2.1-28.

For the reasons given, the portions of both judgment orders which were appealed from are affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    The City of Chicago, a Municipal Corporation, Petitioner-Appellee, v. Pedro Thorandos, et al., Defendant-Appellant.
    Gen. No. 52,233.
    First District, Second Division.
    November 10, 1967.

      Sherman, Schachtman and Stein, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago, Thomas A. Foran, Special Assistant Corporation Counsel, and Earl L. Neal, Assistant Corporation Counsel (Thomas A. Foran and Robert E. Wiss, of counsel) , for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Plaintiff petitioned under the authority of eminent domain for the acquisition of a parcel of real estate located at the southwest corner of Clark Street and Webster Avenue in Chicago, owned by Pedro Thorandos. In a jury trial wherein the defendant appeared pro se, a verdict was returned awarding him $32,000 as just compensation. The defendant’s post-trial motion was denied. He appeals.

The City filed its Petition To Condemn on February 15, 1966, seeking to acquire eleven (11) parcels of real estate as a part of the Lincoln Park Urban Renewal Project and Plan. The subject realty was one of the eleven parcels and consisted of two buildings on one subdivided city lot. The buildings were used for a rooming house operation and were 75 to 85 years old. While repairs had recently been made on the masonry, the buildings remain in only fair condition. The owner had purchased the property in 1958 for $26,000 and had done repairs and maintenance costing him $5,000.

Defendant was served with a summons on March 3, 1966. On June 30, 1966 a lawyer appeared in court stating he was representing defendant. This lawyer, who did not enter his appearance, had numerous conversations with the Corporation Counsel’s office on the case. On November 7, 1966, an appearance for the defendant was filed by another lawyer. The cause was set to be tried on December 13,1966, and on that day, continued on defendant’s motion to January 3, 1967, due to illness of defendant. On January 3, 1967, the second attorney withdrew, stating that defendant did not desire him to try the case. After a pretrial conference lasting an hour, defendant stated that he did not desire to have the attorney represent him, whereupon the court advised defendant of the difficulty of proceeding to trial without an attorney and recommended that defendant either permit the attorney to try the case or obtain another attorney. Thereupon the defendant stated that he desired to proceed on his own behalf and the court granted leave to the attorney to withdraw and continued the case to January 16, 1967. On the latter day the court again inquired of the defendant whether he wished to proceed without counsel and he stated that he desired to present his case to the jury.

The first opinion witness introduced by the City, Albert C. Hanna, testified that in his opinion the fair cash market value of the realty on February 16, 1966, was $31,000. The second opinion witness, Jared B. Shlaes, testified that the fair cash market value of the property was $32,000. These witnesses were well qualified. When the City rested its case the trial judge inquired of the defendant as to whether he had a witness to testify as to the value of his property. He did not indicate that he had a witness nor that he intended to produce a witness. The court then suggested that the defendant take the stand and tell the jury his story, which he did. The defendant said that in his opinion the fair market value of the realty at the time of filing the petition was $87,000. In his closing argument to the jury defendant stated that he was offered $122,000 for the property.

The first point urged by the defendant is that the trial court erred in admitting the purchase price of the subject property into evidence. The defendant points out that the court asked him when he bought the property, that he answered, “1958” and that the court’s next question was, “How much did you pay for it?” To which the defendant answered $26,000. Defendant testified that he purchased the property in 1958 but that prior to the purchase he had a contract to purchase. Defendant insisted that the trial judge misled the defendant into believing that he was compelled to answer as to the price he paid for the property. The test of admissibility of a sale is whether the sales price has probative value with respect to the present value. It has been consistently held that this question lies in the sound discretion of the trial court. City of Chicago v. Harbecke, 409 Ill 425, 100 NE2d 616; County of Cook v. Colonial Oil Corp., 15 Ill2d 67, 153 NE2d 844; City of Chicago v. Blanton, 15 Ill2d 198, 154 NE2d 242.

In view of the fact that defendant did not object to the presentation of the testimony, he is not now in a position to object. The defendant had the right to conduct his case without the assistance of counsel. In so doing, he is not relieved from observing the rules of procedure which his attorney would be required to observe. After having the advice of two attorneys and after being advised in detail of the difficulty of proceeding to trial without an attorney, defendant elected to exercise his right to represent himself and to try his own case.

Secondly, the defendant maintains that the trial court erred in not striking the “prejudicial and improper argument of counsel for the City.” Objections to alleged improper argument cannot be first urged on appeal. Lanquist v. City of Chicago, 200 Ill 69, 65 NE 681; County of Cook v. Holland, 3 Ill2d 36, 119 NE2d 760. We disagree with the contention of the defendant that the counsel for the City made an improper or prejudicial argument.

Finally, the defendant argues that the verdict was a result of passion and prejudice and should he reversed. A careful examination of the record convinces us that there is no basis for this assertion. The verdict of the jury was within the range of the testimony in a fair trial in which the defendant was given a broad latitude in the presentation of evidence and argument and the jury was fully instructed on the law pertaining to the issue. The jury also viewed the property. For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


text:
    People of the State of Illinois, Appellee, v. James Yancy (Impleaded), Appellant.
    Gen. No. 51,489. (Abstract of Decision.)
    First District, Second Division.
    October 13, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John F. Ward, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in. full.


text:
    Walter M. Block, Plaintiff-Appellant, v. Robert D. Jesmer and Estate of Milton Gerwin, Defendants-Appellees.
    Gen. No. 51,843. (Abstract of Decision.)
    First District, Fourth Division.
    October 4, 1967.
    Walter M. Block, pro se, of Chicago, appellant; Canel & Canel, of Chicago (Jay A. Canel, of counsel), and Goldberg, Weigle & Mallin, of Chicago (John Hudson, of counsel), for appellees.
   Opinion by JUSTICE DRUCKER. Not to be published in full.


text:
    People of the State of Illinois, Appellee, v. Edwardell Noble, Appellant.
    Gen. No. 51,077. (Abstract of Decision.)
    First District, Second Division.
    October 13, 1967.
    Robert J. Goldberg, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


text:
    Roy Johnson, Plaintiff-Appellant, v. Madeliene Lipsky, Defendant-Appellee.
    Gen. No. 51,936. (Abstract of Decision.)
    First District, Second Division.
    November 10, 1967.
    Milroy R. Blowitz, of Chicago, for appellant; Miller, Green & Frazin, of Chicago, for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.