author: Mr. JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Efrain Delgado, Defendant-Appellant.
    (No. 56068;
    First District (1st Division)
    February 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Terrence McQuigg, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

The defendant, Efrain Delgado, was found guilty of attempted murder and aggravated battery in a bench trial. He was sentenced to a term of four to ten years for aggravated battery and four to twelve years for attempted murder. The defendant contends on appeal: he did not knowingly and voluntarily waive his right to a jury trial; the failure to swear the interpreter constituted prejudicial error; the eyewitness identification did not establish the defendant’s guilt beyond a reasonable doubt; the conviction and sentencing for two separate offenses arising from the same conduct requires a reversal of the lesser charge.

Before the trial began the following occurred:

“The Court: Both sides ready?
Mr. Wolff: The State is ready, your Honor.
Hie Court: A jury or a bench?
The Defendant: Bench trial.
Mr. Steamey: Bench.
Mr. Muiphy: Your Honor, may we have a jury waiver, please?
The Court: Delgado, your attorney, Mr. Murphy, advises me or —what’s your name?
Mr. Steamey: Steamey.
The Court: — Mr. Steamey who is about to file his appearance, advises me that you wish to waive your right to a trial by jury and submit your cause to the Court. Before permitting you to do so, it is my duty to advise you that under the law, you have a right to a jury trial. You understand you have a right to a jury trial?
The Defendant: I understand a few questions, not all of it.
Hie Court: You understand?
The Defendant: I understand a few questions but not all over.
The Court: Well, you are entitled to a jury trial or a bench trial. Did your lawyer explain this to you?
The Defendant: Yes.
The Court: I see. You may sign that jury waiver so we can put it in the record and submit your case to the Court without a jury.
Mr. Wolff: Does the defendant understand what a jury trial is?
The Court: Do you understand what a jury trial means, Delgado? Twelve jurors hear the case instead of me as the Judge, you understand that?
The Defendant: Yes.
The Court: All right.
The Defendant: You read that for me.
Mr. Stearney: It says that you waive your jury trial and submit the above-entitled cause to the Court. In other words, you don’t want a jury to hear it but you want the Judge to hear your case.
The Defendant: Okay.”

Raphael Vargas testified that on October 14, 1968, at approximately 2:00 P.M., he heard a knock on his door. When he opened the door, two men “jumped on” him. Both men had knives. At this point the defense attorney said he did not understand Mr. Vargas. The court reporter and the trial judge both indicated that they understood the testimony of the witness but the judge suggested that they get an interpreter. The defense counsel suggested that the witness speak more slowly.

Vargas testified that the men asked for his money. He identified the defendant as one of the two men. He did not know the name of the other man but the other man had been to his apartment a few minutes earlier and they had had a conversation. There was a controversy as to what the witness had previously testified to and the Assistant State’s Attorney then asked that an interpreter be used. All parties agreed in open court to proceed with an interpreter.

After the interpreter, Bartholomew Jerger, was appointed the Assistant State’s Attorney asked the defense counsel, “Do you have any objection to this interpreter?” The defense counsel answered, “No, I don’t.”

The complaining witness was again called to the witness stand. He was not sworn again. The interpreter was not sworn, but only stated his name for the record. The witness’ testimony proceeded with no objection being raised by the defense.

Vargas testified through the interpreter that he knew the defendant by the name “Pennsylvania”; the other man he described as “short” but did not know his name. He made an in-court identification of the defendant as the man known to him as “Pennsylvania.” The defendant was wearing a woman’s silk stocking over his head at the time of the occurrence. The lighting conditions were good; Vargas was able to see the defendant’s face through the stocking.

Both men stabbed Vargas and then went toward the back of the apartment. Vargas went out the front door and down the stairs to the street. When he got out on the street a friend took him to the hospital.

While in the hospital he told the police that “Pennsylvania” had been one of the men who attacked him. He had known the defendant for ten years. The defendant came into the tavern he had owned almost everyday for a five-year period. He had never had any previous trouble with the defendant. When he returned home from the hospital he found that approximately $100 that he had kept in a china bowl in the kitchen was missing.

On cross-examination also, the witness was questioned through the interpreter. He did not remember if the defendant had a moustache or beard. He did not remember if he gave a physical description of the defendant to the police. The silk stocking did not change the defendant’s appearance and the witness recognized the defendant’s voice.

The defendant, Efrain Delgado, testified in his own behalf. He said that he was coming from a restaurant on his way to the poolroom located below Vargas’ apartment when he saw Vargas coming down the stairs holding his stomach. He helped him into the car that took him to the hospital. He knew that Vargas lived above the poolroom but he had never been in the apartment.

At the close of the trial the defendant was found guilty of aggravated battery and attempted murder and not guilty on the armed robbery charge.

The record shows substantial compliance with the requirement that the defendant understandingly waive his right to a jury trial. (Ill. Rev. Stat. 1969, ch. 38, sec. 103 — 6.) In addition to his own statement to the court, both lawyers representing the defendant indicated in his presence that he wished to waive a jury trial. (People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397.) Moreover, he was no newcomer to criminal proceedings. People v. Richardson, 32 Ill.2d 497, 500, 207 N.E.2d 453; People v. Gay, 4 Ill.App.3d 652, 281 N.E.2d 738.

The defendant contends that an interpreter is a witness and as such must be sworn, citing McKinney v. People, 7 Ill. 540. Whether he is a witness or, as the State suggests, like a witness is not material. The fact remains he must take an oath. (Ill. Rev. Stat. 1969, ch. 51, sec. 47.) But the defendant does not address himself to tire argument of the State that the defendant has waived the point now raised by failing to object at the trial.

The only cases cited by the defendant involving unsworn interpreters are Kelly v. The State, 96 Fla. 348, 118 So. 1 and Commonwealth v. Corsino, 261 Pa. 593, 104 A. 739. In the Kelly case the Supreme Court of Florida reversed a death sentence because the interpreters did not speak the language the defendant did. The opinion is silent on whether an objection was made. In the Corsino case the Supreme Court of Pennsylvania reversed because a copy of the indictment was submitted to the jury out of the presence of the defendant. One of the other grounds urged for reversal was the failure to properly swear the interpreter. The Court said: “* * ” Whether [the interpreter was] properly sworn, or, if not, whether defendant can now avail himself of that fact after having used her as his own interpreter and after verdict, are questions not necessary now to determine.” Neither of the cases is authority for the position of the defendant.

In Marxauch v. U.S., 398 F.2d 548, (1st Cir. 1968), cert. den. 89 S.Ct. 454, 393 U.S. 982, 21 L.Ed.2d 443, the court of appeals said:

“With respect to the trial itself, defendant asserts that it does not appear that the interpreter was sworn. We have recently rejected such a formal contention first made on appeal as not approaching plain error. Defino Martone v. United States, 1 Cir., 6/13/68, 396 F.2d 229. The circumstances here are no different.”

Accepting the defendant’s assertion that an interpreter is a witness, the cases dealing with the failure to swear witnesses are analogous authorities for tire State’s position. In the case of McKinney v. People, 7 Ill. 540, 555, cited by the defendant, the witnesses were improperly sworn. The court said: “Having stood by, making no objection, it was too late after the verdict.” This same position was taken in People v. Krotz, 341 Ill. 214, 172 N.E.2d 135 and Cogswell v. Hoguet, 40 Ill.App. 645. We adhere to that position here. Significantly, neither the defendant nor his attorneys asked that an interpreter be appointed to translate the English language to the Spanish language in order that he might better understand the proceedings. From this it may be inferred that he was able to speak English adequately. He had been in the United States for at least thirteen years before trial. It is undisputed that he spoke Spanish. He testified in English without an interpreter. There is no suggestion in the record that the interpreter did not translate correctly. The defendant may not now be heard to complain that the interpreter was not sworn.

The defendant contends that the identification was unreliable primarily because Vargas did not remember Delgado having a beard or moustache on the day of the crime. The defendant was the only person who testified that he had a beard and a moustache on that day; he also testified that on that day he had the same full beard and moustache he had at the trial. Officer Ranick testified in rebuttal that he saw the defendant five days after the occurrence, that tire defendant had a moustache and a small growth on his chin and that the growth of hair on his face was “a lot more” at tire trial than it was on the day he first saw him. From this evidence the trier of fact was not required to conclude that the defendant had a particularly noticeable amount of facial hair on the day Vargas was stabbed. Even if he had, the failure of Vargas to remember two and one-half years later would not necessarily render his identification worthless. Precise accuracy in describing facial characteristics is unnecessary where an identification is positive. (People v. Catlett, 48 Ill.2d 56, 63, 268 N.E.2d 378; People v. Coleman (1972), 8 Ill.App.3d 755.) In People v. Nelson, 127 Ill.App.2d 238, 262 N.E.2d 225, the defendant was wearing a towel mask with two burnt holes in it. The complaining witness identified the defendant, who had been his employee for three months, from his voice and walk. The court held that the identification was clear, convincing and certain. In the present case the witness had known the defendant for several years and had seen him almost everyday for five years. He recognized his voice as well as his face. The identification evidence in this case is even stronger than in the Nelson case.

The State concedes that the defendant was improperly sentenced for two acts arising from the same conduct. Therefore, the sentence for aggravated battery is vacated.

The judgment of conviction of attempted murder and the sentence of four to twelve years in the penitentiary is affirmed.

Judgment affirmed as modified.

BURKE, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Libby Katz, Plaintiff-Appellee, v. Leonard Katz, Defendant-Appellant.
    (No. 56767;
    First District (1st Division)
    February 5, 1973.

      Robert E. Pfaff, of Chicago, (Jenner & Block, of counsel,) for appellant.
    Burton R. Abrams, of Chicago, (Harry G. Fins, of counsel,) for appellee.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

A decree was entered granting plaintiff a divorce and ordering, inter alia, that the parties equally divide certain United States Series H savings bonds then in the possession of the defendant. Appeal is taken by defendant only from that portion of the decree relating to the division of the Series H bonds.

Plaintiff alleged that throughout the marriage she had assisted the defendant in acquiring real and personal property which stood in the names of both parties and in defendant’s name alone, and that there exists other assets unknown to plaintiff, all in which she is entitled to an interest.

Plaintiff specifically testified that at the outset of the marriage she contributed $2000 toward the defendant’s business, but that she did not contribute financially to any of the assets owned by the parties at the time of trial. No further testimony was elicited relative to the ownership of the Series H bonds.

Defendant contends that the plaintiff is not entitled to one-half interest for two reasons: 1. No prayer for relief relating to the Series H bonds was set forth in the complaint. 2. The plaintiff failed to allege and prove that she had special equities in the property. Since we agree with the defendant for the second reason ascribed, it is unnecessary to discuss the first.

Section 17 of the Divorce Act provides that, if it appears to the court that either party to a divorce action holds title to property equitably belonging to the other, the court may compel conveyance thereof to the other party. (Ill. Rev. Stat., ch. 40, par. 18.) Special equities in that property, however, must be pleaded and proved by the party claiming them.

In the recent case of Debrey v. Debrey, 132 Ill.App.2d 1072, 270 N.E.2d 43, the plaintiff alleged no special equities in stock held in her husband’s name, but the trial court nevertheless ordered the husband to transfer the title to plaintiff. In reversing that part of the decree, the court on review stated at page 44:

“We do not deem it even debatable but that in order to invoke the provisions of § 17 for a conveyance of property, it is necessary for the plaintiff to aUege and prove by evidence or admissions special circumstances or equities warranting such a result.” (Emphasis by Court.)

Plaintiff’s own testimony clearly shows she did not contribute to the acquisition of the Series H bonds. See Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201.

Plaintiffs cases cited in support of her position that the court in tire instant case was empowered to grant the relief by virtue of the constitutional elimination of distinctions between law powers and equity powers are not in point. In Chrysler Credit Corporation v. M. C. R. Leasing Co., 114 Ill.App.2d 43, 251 N.E.2d 648, tire court held that it was proper in a replevin action to enter an injunction in order to aid in arriving at a correct determination of the case. Chrysler involved a question of jurisdiction, whereas the instant case concerns a question of the court’s granting relief which was not supported by evidence.

In Douglas v. Papierz, 121 Ill.App.2d 242, 257 N.E.2d 570, the question was whether an adjudication in a mechanic’s lien foreclosure suit was res judicata in a contract action where the allegations in the bills of particulars were identical in both cases.

The case of In re Estate of Garrett, 81 Ill.App.2d 141, 224 N.E.2d 654, cited by the plaintiff, supports the defendant’s position. The trial judge ordered an accounting in a citation petition. The reviewing court stated that the same court had jurisdiction over citation proceedings and suits for accounting, but because no pleading asked for an accounting the trial court could not grant one.

Plaintiff-appellee’s contention that the defendant is barred from appealing the judgment because he has accepted benefits thereunder is unavailing. Generally, where a party accepts the benefits of a judgment, he will not be allowed to appeal from those portions thereof which are unfavorable to him.

In Boylan v. Boylan, 349 Ill. 471, 182 N.E. 614, a divorce was granted which allowed the wife monthly alimony and attorney fees. The wife accepted the alimony and attorney fees from the husband but appealed tire denial of a divorce on her cross-complaint. In dismissing tire appeal, the court on review held that the wife accepted the alimony and attorney fees and, therefore, in the event of a reversal on appeal, she would have had no way of refunding those payments to the husband..

Likewise, in Kissin v. Kissin, 29 Ill.App.2d 126, 172 N.E.2d 635, the court held that, because the wife accepted a deed and money from the husband for title to the marital home and for her interest in bonds, respectively, and because she did not tender or offer to tender those matters to the husband upon her filing of the appeal, she could not therefore appeal the decree.

What is required in cases where an appellant is estopped from appealing a judgment in such circumstances is that the other party would be put to a “distinct disadvantage” if the matter is reversed on the appeal. Thus, in Hancox v. Hancox, 54 Ill.App.2d 476, 203 N.E.2d 613, the court held that there would be no “distinct disadvantage” to the husband where the wife appealed a decree of divorce after accepting her admitted share of a joint savings account and after her attorneys had received their fee; the court stated that there was no dispute as to either matter.

See also Lemon v. Lemon, 14 Ill.2d 15, 150 N.E.2d 608; O’Connor v. O’Connor, 253 Ind. 295, 253 N.E.2d 250, at 252; 29 ALR 3d 1179, et seq.

In the present case, there is no evidence that defendant has accepted any benefits of the judgment for divorce. The plaintiff makes the general argument that defendant has acquired property benefits by the judgment, but such contention is not supported by the record. Defendant received nothing by the judgment that he did not have before the judgment was entered. All property held in joint tenancy was to be divided and held by the parties in tenancy in common. The judgment gave defendant control and management of all realty and control of his currency exchange business, which powers he had prior to the judgment. The fact that defendant accepted $2000 from plaintiff at the start of the marriage has no bearing on his acceptance or nonacceptance of the benefits of the judgment for divorce entered some thirty years later. Plaintiff also argues that defendant was benefited by the court’s order upon him to turn over $22,000 worth of Series H bonds to plaintiff, rather than to divide up his business interests and other such holdings. This argument again begs the question of whether defendant accepted any actual benefits granted by the judgment.

A final matter raised by the plaintiff-appellee is that defendant is barred from appealing the judgment because it is a consent judgment. We disagree.

In Taylor v. Bukowski, 19 Ill.2d 586, 169 N.E.2d 89, the court stated that trial counsel’s initialing the decree “O.K.” in response to the trial court’s request for approval as to form did not render the decree a consent decree.

In the instant case, the signatures of trial counsel follow the clear notation “Approved as to form” on the Judgment for Divorce.

The cases cited by plaintiff in support of her contention in this regard all deal with outright consent decrees, all of which were expressly agreed to by the parties, rendering them unappealable: see Bergman v. Rhodes, 334 Ill. 137, 165 N.E. 598; Consaer v. Wisniewski, 293 Ill.App. 529, 13 N.E.2d 93; Sims v. Powell, 390 Ill. 610, 62 N.E.2d 456; First National Bank of Chicago v. Whitlock, 327 Ill.App. 127, 63 N.E.2d 659; Chicago and Vicinity Hungarian Benevolent Society v. Chicago and Suburb Hungarian Aid Society, 283 Ill. 99, 118 N.E. 1012; Woodlawn Union Baptist Church v. Martin, 306 Ill.App. 263, 28 N.E.2d 349; City of Kankakee v. Lang, 323 Ill.App. 14, 54 N.E.2d 605.

For these reasons, “Paragraph F” of the “Judgment for Divorce,” ordering a division between the parties of the United States Series H bonds, is reversed.

Judgment reversed in part.

BURKE, P. J., and GOLDBERG, J., concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    Margaret Fabschitz, Admr. of the Estate of Michael Fabschitz, Deceased, Plaintiff-Appellee, v. Robert King, Defendant-Appellant.
    (No. 56049;
    First District (2nd Division)
    February 6, 1973.

      Rehearing denied March 6, 1973.

      Leo J. Spivack and Norman E. Goldman, both of Chicago, for appellant.
    Martin J. McGuire and Robert Q. Hoyt, both of Chicago, (Philip J. Rock, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant appeals from a judgment in a negligence action entered on a jury verdict in favor of plaintiff. Defendant raises several contentions on this appeal, but our disposition of this appeal requires only that we consider the contention that the trial court erred in not granting the motion for a directed verdict at the close of plaintiff’s case and denying the motion for judgment notwithstanding the verdict.

This action arose from an automobile collision involving plaintiff’s decedent (hereinafter decedent) and defendant. Subsequent to the collision, but prior to the trial of the action, decedent died from causes unrelated to the collision. Plaintiff thereafter maintained the action on behalf of decedent’s estate. Defendant was precluded from testifying by reason of par. 2 of Ill. Rev. Stat., 1969, ch. 51, commonly referred to as the Dead Man’s Act.

The sole evidence concerning the alleged negligence of defendant appears in admissions contained in the pleadings and the testimony of a police officer for the Village of Forest Park, Illinois, who investigated the reported collision. Defendant admits in his answer to plaintiff’s amended complaint that he was driving a motor vehicle in a northerly direction of Desplaines Avenue at or near Madison. Street in Forest Park, Illinois on December 3, 1965. Desplaines Avenue runs north and south while Madison Street runs east and west.

The investigating officer testified that he received a radio report of a collision at approximately 5:30 A.M. on December 3, 1965. Upon arriving at the scene he observed two automobiles facing north located in the two northbound lanes of traffic “about forty feet north of the alley of Madison Street.” Decedents automobile was located in the curb lane. There was a large pile of leaves in front of it. Defendant’s vehicle was in the left lane partially astride the dividing line between the two lanes. The vehicles were approximately two feet apart. Damage was manifested at the left rear portion of decedent’s automobile. Defendant’s automobile was damaged on the front right. It had been raining and the streets were wet.

Defendant insists that the above evidence was insufficient to support a finding of negligence and that, therefore, it was error for the trial court to deny his motions for a directed verdict and for judgment notwithstanding the verdict. We agree.

Verdicts should be directed and judgments notwithstanding the verdict entered only in those cases in which all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494.

The sole evidence adduced by plaintiff on the issue of the alleged negligence of defendant was circumstantial consisting of the testimony of the investigating officer, who was not an eyewitness, relating his observations after he arrived on the scene. The applicable rule concerning the use of circumstantial evidence to establish negligence was aptly stated in Coulson v. Discerns, 329 Ill.App. 28, 32, as follows:

“A fact cannot be established by circumstantial evidence unless the circumstances are of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess or suspicion is insufficient.”

It is our opinion that the evidence in the case at bar is insufficient to establish negligence on the part of defendant or that plaintiff was free from contributory negligence. There is no evidence that the collision occurred at the location where the automobiles were when observed by the investigating officer. There is no evidence that defendant failed to maintain a proper lookout, operated his vehicle at an excessive rate of speed, followed decedent’s vehicle too closely or did not have his vehicle under proper control. None of these facts can reasonably be inferred from the evidence presented.

Plaintiff urges that we should consider the case of Fahrforth v. Kwiatkowski, 79 Ill.App.2d 300, as controlling here. That case is similar to the instant case in that defendant therein was also precluded from testifying by reason of the Dead Man’s Act and judgment was entered on a jury verdict in favor of plaintiff. The only evidence of negligence in that case consisted of the testimony of the investigating officer who was not an eyewitness to the collision. Fahrforth is distinguishable from the instant case, however, because the testimony of the officer in that case disclosed an accumulation of debris from which the point of impact could reasonably be inferred, defendant’s vehicle left 130 feet of skid marks prior to the point of impact, travelled 52 feet after impact and disgorged 10 feet of guardrail on the opposite side of the road before coming to a halt. No such facts are present in the instant case from which a reasonable inference of negligence can be established.

Accordingly, the judgment is reversed.

Reversed.

LEIGHTON and HAYES, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Aaron Jordain et al., Defendants-Appellees.
    (Nos. 56239-56246 cons.;
    First District (2nd Division)
    February 6, 1973.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

This is an interlocutory appeal by plaintiff, People of the State of Illinois, from an order entered by the Circuit Court of Cook County quashing a search warrant and suppressing evidence. The search warrant was originally issued to search certain premises for narcotics and narcotics paraphernalia which have been used in or constitute the offense of possession of narcotics. The trial court sustained the defendants’ motion to quash for the reason that the reliability of the informer had not been established since his prior information had not as yet led to any convictions.

The complaint for the search warrant was made by Chicago police officer Earl Armstead before a judge of the circuit court of Cook County. The complainant stated that he had probable cause to believe that narcotics and narcotics paraphernalia could be located at 264 North Kedzie Avenue, Chicago, Illinois, based upon the following facts:

An informer, who had given information in the past which led to three raids and five arrests, all of which cases are pending, with narcotics being found in each case, gave information that narcotics were being sold from the record shop at 264 North Kedzie Avenue. The informer-stated that one hour before their meeting he purchased ten “red devils” from “B.B.” in the shop and had seen more. The informer stated that he had taken two of the capsules and they were narcotics. Further, the officer observed the shop for one-half hour and observed several known narcotics addicts enter the shop, have a brief conversation with the clerk, walk to the rear of the shop and then exit with no apparent purchase.

We are of the opinion that the State is correct in its position that probable cause for the issuance of the search warrant was established. The essence of the trial court’s ruling was that, unless the informer’s information has led to at least one conviction, probable cause can never be established. In People v. Williams, 36 Ill.2d 505, 224 N.E.2d 225, the affidavit set out the observations of two informers and stated that they had furnished reliable information in the past. The informers were corroborated by the police officer’s observation of known gamblers entering the premises in question. The court held this provided a sufficient basis to establish probable cause for the issuance of a search warrant. See also People v. Chatman, 38 Ill.2d 265, 230 N.E.2d 879.

In People v. Kopple, 105 Ill.App.2d 68, 245 N.E.2d 134, the court reversed a trial court’s order quashing a search warrant. There the affidavit stated information was supplied by an informer who in the past had proven reliable. This information was corroborated by the informer placing a bet in the police officer’s presence and the officer observing the defendants enter the premises in question. The court held that probable cause was shown, saying, “reliability of informers can be established in various ways and is not restricted to the establishment of the previous reliability of an informer’s information, as measured by previous arrests and convictions or the like, as suggested by the trial court in the instant case.”

In the case at bar, tire affidavit set forth that the informer had given information on three prior occasions and narcotics were recovered in each case. This established that the informer had in the past furnished reliable information. The complainant’s personal observation of known narcotics addcits entering the premises, speaking with a clerk, going to the rear of the store and then exiting with no apparent purchase, further corroborated the informer’s information. The informer’s information, together with the police officer’s observation, was sufficient to establish probable cause for the issuance of a search warrant within the applicable constitutional dictates.

The order of the trial court in quashing the search warrant is reversed and the case is remanded with directions to the trial court to deny the defendant’s motion to quash the search warrant.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael L. Wilson, Defendant-Appellant.
    (No. 56824;
    First District (2nd Division)
    February 6, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (John W. Madden, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Joseph Urso, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM:

Defendant, under the name of Michael L. Wilson, was charged with the offense of theft. (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1).) He was convicted by a judge sitting without a jury and sentenced for six months to the House of Correction. On appeal, defendant contends the complaint was fatally defective because it failed to allege the requisite mental state of “knowledge."

The complaint, signed by Frank O. Hampton, charged the defendant, Michael L. Wilson, with theft, “in that he did obtain unauthorized control over property, to-wit: $75.00 to $80.00 United States Currency of the value less than $150.00, the property of Frank O. Hampton, with the intent to deprive said Frank O. Hampton permanently of the use and benefit of said property.”

Chapter 38, sec. 16 — 1(a)(1) provides: A person commits theft when he knowingly: (a) obtains or exerts unauthorized control over property of the owner, * * * and (1) intends to deprive the owner permanently of the use or benefit of the property.

The complaint in the case at bar does not use the word “knowingly”; it does, however, allege the specific intent on the part of the defendant to deprive the owner permanently of the use and benefit of his property. Defendant’s argument has been authoritively answered by the Illinois Supreme Court in People v. Shelton (1969), 42 Ill.2d 490, 494-495, 248 N.E.2d 65, where it was said:

“Although the information here omits the word “knowingly’, the acts it does aUege could not have been performed unless they were done “knowingly’. You cannot make a gasoline bomb and set it aflame in a building, as specifically aUeged, without acting knowingly and without knowledge that there would be damage.”

The court specificaUy indicated that “knowledge” could be charged “either in the language of the statute or in other appropriate words.” (42 Ill.2d 490, 494.) Here, knowledge was, in effect, charged by use of the language of subsection (1) of section 16 — 1(a)(1), which charged the specific intent to deprive the owner permanently of his property. Following the reasoning of the court in Shelton: You cannot intend to deprive someone permanently of the use and benefit of his property without acting knowingly.

People v. Hayn (1969), 116 Ill.App.2d 241, 244, 253 N.E.2d 575, cited by appeUant, holds an indictment under section 16 is fatally defective where it “fails to aUege any mental state of the defendant or any conduct of the defendant indicating his mental state.” It has also been held by the Illinois Appellate Court, Second District, following Hayn¡ that omission of “permanently” is fataUy defective; People v. Matthews (1970), 122 Ill.App.2d 264, 271, 258 N.E.2d 378; cf., also, People v. Sanders (1972), 7 Ill.App.3d 848, 289 N.E.2d 110; People v. Geary (1972), 8 Ill.App.3d 633, 291 N.E.2d 13. However, in the case at bar, specific intent was alleged in the statutory language of section 16 — 1(a)(1).

The judgment of the circuit court of Cook County is affirmed.

Affirmed.


author: Mr. JUSTICE GOLDBERG

text:
    Statistical Tabulating Corporation, Plaintiff-Appellee, v. John G. Hauck, d/b/a Office Skills, Defendant-Appellant.
    (No. 57414;
    First District (1st Division)
    February 7, 1973.
    Ordower & Ordower, of Chicago, for appellant.
    Russell J. Topper, of Chicago, for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Statistical Tabulating Corporation (plaintiff) brought action against John G. Hauck, doing business as Office Skills (defendant), seeking injunctional enforcement of a restrictive covenant. The trial court entered judgment on the pleadings granting enforcement of the covenant as modified by the court. Defendant appeals. A factual statement is required before stating the contentions of the parties.

Since judgment was entered on the pleadings (Ill. Rev. Stat. 1971, ch. 110, par. 45(5)), the facts must be gleaned from the pleadings themselves without evidence. (Vogelsang v. Credit Life Insurance Co., 119 Ill.App.2d 67, 73, 255 N.E.2d 479.) Plaintiff’s business consists primarily of supplying data processing and temporary office help to other companies and organizations. Its offices are located in Chicago but it has branch activities in other portions of the country. Defendant was employed by plaintiff commencing October 7, 1963. He was a sales representative in Chicago until June, 1966; sales manager until April, 1967 and national sales manager until his employment terminated on November 19, 1971. Plaintiff alleged that defendant was a divisional vice president for the last year of his employment but defendant denied this and alleged that, although he had this title, he had no duties or salary commensurate with tire office.

On June 1, 1967, plaintiff and defendant executed an agreement cast in the form of a letter from defendant to plaintiff. The record does not show who prepared this agreement. In this letter, defendant stated his understanding that he was “* # * likely to become familiar with secret or confidential information of the corporation.” Defendant then stated that “* * * in consideration of my employment by the corporation, I agree that during my employment and after the termination of my employment for any cause * * *” he would not divulge, use or sell business or trade secrets, customer lists or any other secret or confidential information of plaintiff. Defendant further agreed “* * * in consideration of my employment by the corporation * # *” that upon termination of his employment for any cause whatsoever he would not for two years thereafter, directly or indirectly, engage in a business similar or competitive to that of plaintiff within 100 miles from the city in which he was then employed; within a radius of 100 miles from any part of 19 other designated cities in various parts of the United States from California to New York (Atlanta, Boston, Dallas, Los Angeles, San Francisco, etc.) or within a radius of 100 miles from any part of any city in which plaintiff or an affiliated company was operating at the time his employment was terminated.

It is undisputed that defendant’s employment was terminated on November 19, 1971. It is also undisputed that defendant violated the negative covenant by organizing his own business known as Office Skills which competed with the business of plaintiff in Chicago. The trial court granted plaintiffs motion for judgment on the pleadings and defendant was permanently enjoined and restrained from operating his business of Office Skills or any related business in violation of the agreement in competition with plaintiff and also from acting in any manner to operate or engage in the business of supplying or furnishing temporary office help until November 19, 1973. The judgment also provided * * that the aforesaid contract of June 1, 1967 is hereby modified to reduce the geographical area as prescribed therein to an area equivalent to a radius of 25 miles of Chicago, Illinois.”

Defendant contends that the restrictive covenant is not based upon a sufficient consideration because it is not ancillary to another contract and sets forth no additional consideration. Defendant also contends that the covenant is invalid because it is unreasonable in terms of its effect upon the parties thereto and the public. Plaintiff urges that continued employment of defendant was a sufficient consideration for validity of the covenant and that the covenant was reasonable and enforceable so that defendant, having accepted the benefits of continued employment, should be required to bear the burdens thereof.

We first consider the issue of validity of the covenant. It is a sound and accepted principle in Illinois that the enforceability of this covenant # * in restraint of competition is conditioned upon its reasonableness in terms of its effect upon the parties to the contract and the public.” (House of Vision, Inc. v. Hiyane, 37 Ill.2d 32, 37, 225 N.E.2d 21.) It is only in situations in which the limitations in the covenant as to time and territory are not unreasonable that a contract of this type in restraint of trade will be enforced. (Canfield v. Spear, 44 Ill.2d 49, 50, 51, 254 N.E.2d 433.) “Whether the contract under consideration is reasonable or contrary to public policy is a question of law.” Barrington Trucking Co. v. Casey, 117 Ill.App.2d 151, 156, 253 N.E.2d 36, citing Tarr v. Stearman, 264 Ill. 110, 118, 119, 105 N.E. 957.

Testing the covenant in the case at bar as originally: drafted against this standard, the conclusion of unreasonability is manifest. The necessity of restricting defendant’s activities within a radius of 100 miles from the city of Chicago does not appear from any allegation of the complaint. The unreasonability of the restriction appears patent and conceded because of the reduction of the distance to 25 miles in the judgment order appealed from. Similarly, no justification appears for the harsh restriction against defendant’s activities within a radius of 100 miles from so many enumerated cities. This restriction covers a substantial area of the entire country. The conclusion, therefore, is readily reached that the covenant in its original form could not be the subject of injunctional enforcement.

We consider next whether the court properly modified this covenant; or, to state the matter differently, whether the court properly elected partially to enforce the covenant in an effort to obtain reason-ability. The principle has been stated that in a situation of this type, “* * * the fairness of the restraint initially imposed is a relevant consideration to a court of equity.” (House of Vision, Inc. v. Hiyane, 37 Ill.2d 32, 39, 225 N.E.2d 21.) Basically, it appears that there is some division in legal thought regarding solution of this problem. Some courts have modified and then enforced negative covenants which restrain competition. Other courts will do so only in cases involving protection of goodwill in sale of a business, secret processes or trade secrets. (See House of Vision, Inc. v. Hiyane, 37 Ill.2d 32, 39, 225 N.E.2d 21). In House of Vision, Inc., the covenant as originally written into an employment contract contained no time limitation and was operative within a range of 30 miles from any office of the employer or any office from which the employee had rendered services during his employment. After hearing evidence, the trial court modified the covenant to an area 20 miles from one office of plaintiff for a period of five years. The Supreme Court held that this attempted restraint was contrary to law.

Looking to additional Illinois authorities, we find several applicable cases decided after House of Vision, Inc. (1967). In L. & R. Insurance Agency, Inc. v. McPhail, 92 Ill.App.2d 107, 235 N.E.2d 153, the covenant in an employment contract covered the entire state of Illinois for an unlimited time period. After hearing evidence, the trial court enforced the restrictive covenant for three years only. This court held that the restriction as originally drafted was not necessary to protect any legitimate interest of the employer and therefore énforcement of the covenant, as modified, was refused. The court held that (92 Ill.App.2d 107, 113):

“Since the restriction was void and unenforceable, the trial court could not cure the restriction by imposing a limitation on it.”

The decision in L. & R. Insurance Agency, Inc. could be construed from this language as reasoning deductively that since the original covenant was unreasonable in its time' and space limitations, it followed necessarily that the agreement could not be the subject of modification and enforcement by the court. Application of this principle would require us to deny enforcement of the covenant as modified. However, the court in L. & R. Insurance Agency, Inc. pointed out that the modified restraint imposed by the trial court “* # 9 appears to be a device to protect the plaintiffs against competition rather than a reasonable protection of their interests.” 92 Ill.App.2d 107, 112.

We find these same principles applied in the later case of Barrington Trucking Co. v. Casey, 117 Ill.App.2d 151, 253 N.E.2d 36. There, the employment contract restricted the employee from engaging in a competing business for three years in any area or territory in any state in which the employer or its subsidiaries was engaged in business at the time the employee left. The trial court granted a motion to dismiss the suit and this ruling was affirmed. The court cited L. & R. Insurance Agency, Inc., and House of Vision, Inc., and came to the conclusion that, since the employment contract as initially prepared covered an unreasonable area, the contract was void. Apparently the court also found a lack of need on the part of the employer for any injunctional protection from the fact that the employer’s complaint as amended failed to allege that the employee had used any confidential matter supposedly furnished to him.

In Central Specialties Co. v. Schaefer, 318 F. Supp. 855, the United States District Court for the Northern District of Illinois had before it for enforcement a negative covenant in a contract for sale of a business and assets. The period of restriction was five years and the covenantors agreed not to work for any firm manufacturing competitive items, without territorial limitation. The court refused to enforce the covenant and granted a motion by the defendants for summary judgment. The court analyzed many of the Illinois decisions commencing with the general theory that the courts of Illinois have historically refused to enforce contracts in general restraint of trade. The court pointed out that such covenants are enforceable if they are * * reasonably related to safeguarding tire employer without putting unreasonable restraints upon trade.” (318 F.Supp. 855, 858, citing Beltone Electronics Corp. v. Smith, 44 Ill.App.2d 112, 115, 194 N.E.2d 21.) The court held that a contract which originally contains an illegal restraint cannot “* * * be reformed so as to become enforceable within a reasonable geographic area.” (318 F.Supp. 855, 859.) In this regard, the court specifically relied upon L. & R. Insurance Agency, Inc. and House of Vision, Inc., supra.

We, therefore, are in accord with the established weight of authority in Illinois when we hold that the attempted restriction upon the employee in tire case at bar, being manifestly unreasonable in its inception, was unenforceable and cannot be given legal fife by an attempted partial enforcement; and, further, that no showing is made here of possible irreparable injury or grave necessity for the imposition of restraint by the covenant as modified to afford reasonable protection to the rights of the employer. It appears from the allegations of plaintiff’s complaint that it is engaged primarily in the business of procuring temporary office help. The complaint alleges that defendant “* * * has and is and will continue 6 * *” to * * unlawfully misappropriate customer lists, notes, documents and other written materials of * * plaintiff. Defendant has denied these allegations in a verified answer. Defendant has also alleged affirmatively, without denial by plaintiff, that “No secret or confidential information, business secrets, trade secrets, confidential business methods or customer lists were disclosed to Defendant.” Defendant similarly alleges in his answer that he “* * # primarily served the plaintiff in an administrative capacity as a manager.” Plaintiff’s motion for judgment on the pleadings admits the truth of these, and all other, facts well-pleaded by defendant. Cunningham v. MacNeal Memorial Hosp., 47 Ill.2d 443, 448, 266 N.E.2d 897.

It follows that the restrictive judgment was improvidently entered and should be reversed. We need not consider whether the agreement is based upon a sufficient consideration.

Judgment reversed.

BURKE, P. J., and EGAN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Simon Redmond, Jr., a/k/a Simon Redmon, Petitioner-Appellant.
    (No. 56673;
    First District (2nd Division)
    February 13, 1973.
    Kenneth L. Gillis, of Gillis & Rimland, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    Gurtz Electric Company, Plaintiff-Appellant, v. Martin Kamenir, Defendant—(Premier Electrical Construction Company, Garnishee-Employer-Appellee.)
    (No. 57202;
    First District (5th Division)
    February 9, 1973.
    Arthur Rosenblum, of Chicago, for appellant.
    A. Denison Weaver, of Chicago, for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Terrell, Defendant-Appellant.
    (No. 56771;
    First District (5th Division)
    December 29, 1972.

      Raymond W. Ewell, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Griswold, Defendant-Appellant.
    (No. 71-204;
    Third District
    March 1, 1973.

      John L. Barton, of Marseilles, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, (David L. Thompson, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a denial of post-conviction relief to defendant William Griswold who was convicted of armed robbery in a jury trial in the circuit court of Rock Island County on July 6, 1967, and thereafter sentenced to a term of five (5) to twenty (20) years. The judgment was affirmed upon an appeal to the Appellate Court in 100 Ill.App.2d 436, 241 N.E.2d 212.

William Griswold subsequently filed a petition for relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1971, ch. 38, sec. 122 — 1 et seq.) An evidentiary hearing was conducted upon such petition and the trial court denied relief to the petitioner. On appeal in this court defendant contends that he made an adequate showing of denial of constitutional rights and is entitled to a new trial or, alternatively, that this court should remand the cause for a new post-conviction hearing.

The record discloses that prior to the original trial in which defendant was convicted, defendant sought and obtained an order directing the State’s Attorney of Rock Island County to have ready for inspection at the time of trial, all reports and statements of witnesses in possession of the Moline Police Department which related to defendant’s arrest and the investigation of the crime with which he was charged. This order was complied with and during the trial, defendant was permitted to examine the statements of witnesses for possible impeachment purposes. Defendant was not, however, permitted to examine police reports. In his post-trial petition, defendant alleges that the court’s refusal to tender such reports for his inspection was reversible error. On the appeal from his conviction, this issue was abandoned and was not presented for the consideration of this court. In his post-conviction petition defendant now again raises the issue in which he charges that by denying him access to the reports, the trial judge and the State’s Attorney combined to conceal evidence favorable to the defense, and this deprived defendant of due process of law.

We have reviewed the record and conclude that the post-conviction relief was properly denied. As stated by the Supreme Court in People v. Derengowski, 44 Ill.2d 476, at 479, in referring to the Post-Conviction Hearing Act:

“The remedy under the Post-Conviction Hearing Act is limited to constitutional issues and does not provide an opportunity for re-determination of the guilt or innocence of a defendant. (People v. Orndoff, 39 Ill.2d 96.) Furthermore, it is not within the view of the Act to have claims determined which could have been presented upon a direct review of the conviction (People v. Doherty, 36 Ill.2d 286), and to this end we have consistently held that when an appeal is taken, as it was in this case, the judgment of the reviewing court is res judicata not only as to all issues actually raised, but also as to those issues which could have been raised but were not, the latter issues being deemed to have been waived. (People v. Kamsler, 40 Ill.2d 532; People v. Armes, 37 Ill.2d 457.) Only where required by fundamental fairness will the rule of waiver be relaxed. (People v. Hamby, 32 Ill.2d 291.)”

In the cause before us, the allegations of the post-conviction petition with respect to the refusal of the trial court to permit defendant to examine the police reports are the same as the allegations in his post-trial motion simply recast in terms of constitutional claims. Obviously these claims, or issues, could have been raised in the prior appeal. Since they were not, and inasmuch as we see no reason of fundamental fairness which would cause us to conclude otherwise, we conclude that such issues were waived and rendered res judicata by the prior appeal.

The post-conviction petition contained an allegation that new evidence had come to light which would exonerate defendant and, in support thereof, the affidavit of one Gilbert Spears was appended to the petition. In substance, the affidavit stated that affiant’s brother, Leonard Spears, had told affiant that he and another man, not the defendant, had committed the robbery for which defendant had been convicted. Leonard Spears, it appears, is confined in a Kentucky Penitentiary under a death sentence. Prior to the hearing on the petition, defendant’s counsel filed a motion asking the court to grant, him expenses for a trip to Kentucky so he could interview Leonard Spears. The motion was denied and it is now urged that an interview with Leonard Spears was essential to preparation for the hearing on the petition, and that the trial court’s refusal to allow the motion, deprived the defendant of equal protection of laws and the effective assistance of counsel. Even the testimony of defendant at the post-conviction hearing indicated that Gilbert Spears declined to become a witness for defendant because it might hurt the appeal of his brother, Leonard. We are asked to remand the cause with directions that the motion be granted and that defendant be granted a new hearing on his petition once his interview with Spears is accomplished.

On this record, it is sufficient to say that the trial court properly denied the motion. We venture no opinion as to whether equal protection of the laws would require that counsel for an accused be allowed travel expenses incidental to preparation for trial. (See: People v. Watson, 36 Ill.2d 228.) In the absence of any properly supported allegations that the prosecution acted improperly or unfairly to deprive an accused of such evidence, an allegation of newly found evidence is insufficient to warrant post-conviction relief. (People v. Colleti, 48 Ill.2d 135.) There are no such allegations of improper or unfair actions on part of the prosecution in the petition. Thus, it necessarily follows that an interview with Leonard Spears could not have related to the issues being raised by the petition now before us.

The judgment of the circuit court óf Rock Island County is affirmed.

Judgment affirmed.

STOUDER and SCOTT, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clifford Samuel Smith, Defendant-Appellant.
    (No. 72-97;
    Third District
    March 1, 1973.

      John L. Barton, of Marseilles, for appellant.
    Michael Mihm, State’s Attorney, of Peoria, (Thomas M. Pennell, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant Clifford Samuel Smith was charged with the offenses of attempted murder and aggravated battery. On Oct. 18, 1971 a competency hearing was held and the defendant was found competent to stand trial. A jury trial began Nov. 1, 1971 and defendant was found guilty of both charges in the Circuit Court of Peoria County. He was sentenced to a term in the Penitentiary of not less than nine nor more than twenty years.

At the arraignment proceedings, the defendant being indigent, the court offered to appoint the Public Defender. The defendant refused the offer and requested counsel appointed from the Bar Association. This was done. Later, this attorney filed a written motion requesting an examination be made of defendant to determine his competency to stand trial. In support of the motion, the attorney alleged the defendant to be unco-operative, refuses to take advice, and maintains he is the victim of a conspiracy.

The defendant requested this attorney withdraw and on July 19 informed the court that he had retained private counsel. The original attorney then was allowed to withdraw.

On Oct. 18, 1971 the competency hearing was about to commence when defendant demanded a jury trial, in fact he at least three times personally asked for a jury trial. He also wished to discharge his retained counsel who he claimed to be incompetent.

The court asked the State’s Attorney for advice and was told that “if proper demand is made through his attorney s * * I believe they have that right.” Defendant’s attorney said nothing. Defendant stated, “I am entitled to a jury trial.”

The court thereupon proceeded without a jury. Only two witnesses testified. Dr. Ian Wickram, a practicing psychologist and a member of the faculty of the Medical School, University of Illinois, had examined defendant on three occasions and had conducted extensive tests. His opinion was that defendant was incompetent to stand trial. He stated that “defendant understood the nature of the proceedings but will have problems in assisting with his defense” and that “the nature of his disturbance is such that he — it would be militant against meaningful collaboration with his defense.” He was disturbed to a significant extent having delusions of a paranoia nature. “He is in need of mental treatment * *

The accused also testified. He stated that he had been misrepresented by his former attorney who was in collusion with the State’s Attorney. He felt that he was competent and he knew right from wrong.

Article 104 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch, 38, sec. 104), deals with incapacity to stand trial. Section 104 — 1 defines an incompetent as follows:

“For the purposes of this Article, ‘incompetent’ means a person charged with an offense who is unable because of a mental condition:
(a) To understand the nature and purpose of the proceeding against him; or
(b) To assist in his defense; or [Emphasis supplied]
(c) * *

In People v. McKinstray, 30 Ill.2d 611, the opinion of the expert witness was that defendant although understanding the nature of the crime of which he was charged was unable to co-operate with counsel. The only other witness there was defendant who opined that he was able to co-operate with his counsel in his defense. The court said, “To accept defendant’s opinion * * *, when the purpose of the hearing is to determine that very fact, would make a sham out of the hearing.” The court reversed the subsequent conviction and remanded for further proceedings.

Section 104 — 2 of the Article sets out the proceedings to determine competency. Paragraph (a) provides: If before a trial, * * * the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency. If a jury is waived by the defendant, the court shall conduct a hearing to determine the defendant’s competency.

The Committee Comments state: “This section prescribes the procedure set forth in the former law # * * a jury was mandatory unless waived * * *. This procedure is continued.”

It is clear that a defendant is entitled to a jury unless he waives that right. He is not first required to make a demand as in an ordinary civil proceeding. Defendant in demanding a jury before the hearing began cannot be said to have stood idly by without objection, thus waiving his right to jury. His attorney made neither express wáiver nor express demand, in fact the record shows that he remained silent. While an accused ordinarily speaks and acts through his attorney (People v. Sailor, 43 Ill.2d 256), it has long been the rule in Illinois that an attorney cannot waive a jury against the express demand of his client. In Lyman v. Kaul, 275 Ill. 11, 20 the court said, “While counsel employed to represent a party to a suit have large powers and authority to enter into agreements and stipulations, they have no authority to waive legal rights guaranteed their clients by law, contrary to the express wishes, orders and directions of their clients. While, as a general rule, it is probably true the client accepts his counsel's advice as to agreements and stipulations in the trial, he is not bound to do so, especially where the agreement is the waiver of a right conferred by law, such as the right of trial by jury.”

The people argue that a jury trial is not essential to due process and cite, out of context, a general statement made by the court in People v. Reeves, 412 Ill. 555, 561. In almost the next sentence the court stated, “Yet under the statutes, as enacted by our legislature, a jury trial has been decreed °

The right of trial by juiy, where it is granted by constitutional or statutory provision, cannot be taken away or impaired by the courts. If there is a statutory method of procedure and compliance in connection with jury law, the trial court may not permit infringement. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 3 L.Ed.2d 988.

The People also cite People v. Scott, 106 Ill.App.2d 98; People v. Stoudt, 90 Ill.App.2d 140; and People v. Wilson, 29 Ill.2d 82, for the proposition that a bona fide doubt of defendant’s sanity must be raised before any investigation need be made by the comt. While we agree that the duty to cause á competency hearing to be held arises only when the evidence or circumstances give rise to a bona fide doubt as to the accused’s competency to stand trial (I.L.P. Criminal Law, Sec. 485), the question may be raised, as here, by suggestion of counsel, and, if made in good faith, it becomes the duty of the court to conduct á hearing on the issue. (People v. Lego, 32 Ill.2d 76; People v. Burson, 11 Ill.2d 360.) The trial court in the instant case did, in fact, decide that the motion filed by counsel raised such a bona fide doubt as to the accused’s incompetency so as to require a hearing, and did in fact conduct a hearing,

The matter was tried in 1971. The jury trial which should have been held would have determined his competency as of that date. “Sufficient time has elapsed since then to make it doubtful that the evidence bearing on his competence could be reconstructed if we were to remand for a hearing as to competence only. Consequently, we must reverse the judgment of conviction and remand the cause for a new trial in order that the defendant may have an opportunity to raise the question of his present competence. (See, Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836; People v. McLain, 37 Ill.2d 173; People v. Thompson, 36 Ill.2d 332.)” People v. Thomas, 43 Ill.2d 328. This resolution makes it unnecessary to consider the other points raised in defendant’s brief.

The judgment of the Circuit Court of Peoria County is reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.

STOUDER, P. J., and SCOTT, J., concur.


text:
    Paul Mercer et al., Plaintiffs-Appellees, v. Wallace F. Sturm et al., Defendants—(Wallace F. Sturm, Defendant-Appellant.)
    (No. 72-139;
    Third District
    March 1, 1973.

      F. R. VanHooreweghe, of Kehr and VanHooreweghe, of Chillicothe, for appellant.
    James S. Brannon, of Peoria, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

A complaint was filed by the plaintiffs, Paul Mercer and Joyce Mercer, for an order enjoining the defendant, Wallace F. Sturm, from interfering with their construction, maintenance, and use of a driveway along the boundary between their property and his but lying on his land. A temporary injunction was issued by the Circuit Court of Peoria County, Illinois; a motion for summary judgment was filed by the defendant and denied; a hearing on the merits took place before the Court without a jury; an injunction was granted which prohibited the defendant from interfering with the plaintiffs’ use of the driveway during his lifetime, the defendant having only a life estate in the land he occupied; and the defendant has appealed.

The issues presented are whether a valid and enforceable agreement for use of the driveway was made, or whether the promise given was unenforceable by reason of lack of consideration or lack of a writing; whether merely a revocable license was created and was subsequently revoked, or whether it later could not be revoked; and whether the Circuit Court committed reversible error in not allowing the defendant’s motion for summary judgment.

The plaintiffs, Paul and Joyce Mercer, had bought their property, a little more than an acre of land on the side of a hill in a rural area, for a home site, purchasing it on June 4, 1968, from the defendant’s brother. A short time earlier, in the spring of 1968, Paul Mercer had asked the defendant for an easement to use part of the defendant’s lane running along the property line as a driveway for the house he planned to build. The lane was at that time just a cow path. There are conflicts in the testimony as to what took place between Paul Mercer and the defendant at this earlier meeting.

Paul Mercer testified at the trial that the defendant said he would give him an easement for ingress and egress, without limitation as to time, like that which had earlier been given to a country club; that the defendant wanted the plaintiffs to shape up the land and landscape it; that the defendant said some day one of his sons might want to build a house up on the hill and his road would be a good means of access to it; and that the defendant explained that he did not want to put the easement in writing because he did not want to get involved with his ex-wife, but would consider it a gentleman’s agreement.

The defendant testified that he had told Paul Mercer he could not grant an easement because he owned only a life estate in the property, having conveyed the remainder interest to his children, but had said so far as he was concerned the Mercers could use his lane as a driveway, at least until their house was built; that he had mentioned to Paul Mercer that he had had to give the country club an easement because its property was landlocked; and that he had made no requirements for improvement of the land, received no part of the price paid by the plaintiffs for their building site, and made no charge for use of the lane.

During the summer of 1968, after acquiring tide to their property, the plaintiffs began work on improvement of the defendant’s lane. It was extended about 200 feet to the public highway, smoothed, graded, and graveled, and a culvert was installed. In the summer of 1969 they commenced work on the construction of their new house. Some of the dirt from excavating for the basement and a turn-around was pushed onto the defendant’s land. On August 20, 1969, Paul Mercer was sent a letter by the defendant, mentioning the “original verbal agreement regarding the use of the simple road way * * * for ingress and egress” and telling him to make plans immediately to place his driveway elsewhere.

By this time the basement of the home was constructed, the outside shell was up, and work had begun on the roofing and the interior walls. A garage was located in the basement, situated in the rear and opening into a turnaround which led to the property line and the defendant’s lane. It was admitted that the house could be reached without use of the lane if another road were constructed from the highway. However, whether the garage could be reached was disputed. The defendant testified that there was a distance of 30 to 40 feet between the house and the lot line, and that it was possible to put a driveway there. Paul Mercer, on the other hand, testified that a driveway could not be put beside the house because of the steepness of the terrain. Paul Mercer testified, further, that if the defendant had not promised him the use of the lane, the garage would have been situated in the front portion of the house, and that changing the driveway to a different location would require closing in the existing garage and building a new unattached garage on the opposite side of the house.

The plaintiffs rely on the case of Anastaplo v. Radford, 14 Ill.2d 526. In that case it was held that an oral promise to grant an easement for a sewer line would be given specific enforcement, an injunction was granted to restrain the defendant from interfering with the sewer which had been constructed by the plaintiff on the defendant’s land, and damages were awarded the plaintiff. The existence of an agreement to grant an easement was found; the defendant admitted having seen the sewer while it was being constructed and having made no objection; it was established the plaintiff’s motel had had to be shut down because of the destruction and stoppage of the sewer; and the Statute of Frauds was held to be no defense. The court said, at pages 537-539: “The statute is never available as a defense where there has been sufficient performance by one party in reliance upon the agreement. * * * [This] applies to an oral agreement granting a right of way where the agreement is made for a valuable consideration followed by possession and use. * * * Under these circumstances it would be fraud to permit the defendant or his successors to repudiate the agreement by invoking the Statute of Frauds.”

The defendant objects that no consideration was given him for his promise. However, there was testimony from which the trial court could conclude that the plaintiffs had undertaken to improve the lane, and that the defendant had requested that this be done for the benefit of himself and also his sons in the event one of them might decide to build a house on the hill. We therefore find that under Anastaplo it was proper for the trial court to hold that a valid agreement had been created, that part performance by constructing and grading the lane had followed, that the defendant had stood by and watched the improvement of the lane and construction of the basement garage so as to make use of that lane without making any objection, and that it would be fraud in this case to permit the defendant to annul his agreement by invoking the Statute of Frauds.

The defendant argues that Anastaplo involved an agreement for an easement; that in this case there is at the most a license, the defendant having only a fife estate and having not undertaken to give any rights in his land except permission to use the land during his own lifetime; and that a license is revocable at will. However, the Supreme Court said, in Petersen v. Corrubia, 21 Ill.2d 525, 534, that “this court will not permit the owner of property to revoke a license if in doing so it will operate as a fraud.” It earlier explained, in Girard v. Lehigh Stone Co., 280 Ill. 479, 484: “At law a parol license is revocable though a consideration has been paid or expeditures have been made on the faith of the agreement. [Citations.] Courts of equity, however, will interfere to restrain the exercise of a legal right to revoke a license on the ground of preventing fraud and will continue the license as an agreement to give the right.” One of the factors to be considered is whether revocation of the license would deprive plaintiffs of access to their garage. (Mueller v. Keller, 18 Ill.2d 334, 343; Boland v. Walters, 346 Ill. 184, 189.) We believe from our examination of the record that the trial court was justified in finding that the plaintiffs would be deprived of access to their garage if the defendant could not refuse them the use of his lane, and that to hold the license given by the defendant to be revocable after he had observed the improvement of the lane and construction of the garage in the plaintiffs’ basement would be to countenance fraud.

The defendant argues that his motion for summary judgment should have been granted. However, “It is weU settled that after an evidentiary trial, a previous order denying a motion for summary judgment is not reviewable.” Sears Roebuck & Co. v. Employers Mut. Liab. Insurance Co., 6 Ill.App.3d 10, 12.

There being no reversible error, the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

STOUDER, J., and SCOTT, P. J., concur.


text:
    Sylvia Swanson, Plaintiff-Appellant, v. Lester Wolstenholm et al., Defendants-Appellees.
    (No. 72-228;
    Third District
    March 1, 1973.

      John C. Tower, of Rockford, for appellant.
    John A. Leemon, of Mt. Carroll, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Whiteside County denying relief to plaintiff Sylvia Swanson as against defendants Lester Wolstenholm and Frances Wolstenholm in a declaratory judgment action seeking to determine the rights and liabilities of the parties with respect to a division fence between their respective properties. On appeal in this court, plaintiff contends that she is legally entitled to seek judicial review of a fence viewers’ decision which was made with respect to the fence between the properties of plaintiff and defendants. Plaintiff also contends that she established by a preponderance of the evidence that the decision of fence viewers chosen by the parties was arbitrary and inequitable.

The defendants Wolstenholm acquired the farm bordering the Swanson property in 1951. Nothing was filed of record relating to the fence between the two farms. Approximately a year after the Wolstenholms had acquired their property, Mr. Wolstenholm learned from his tenant that his tenant was maintaining the right-hand portion of the east-west division fench and the left-hand portion of the north-south fence. Mr. Wolstenholm then went to Mr. Swanson (who was then alive) and asked him to take care of the north half, which would be the common practice in Whiteside County of maintaining the right-hand portion of the fence as the owner faced it from his property. Swanson refused to make a change in the practice which was then established as to the fence. Wolstenholm attempted to have Swanson change the arrangement several times after that.

In 1971, Wolstenholm no longer had a tenant on his farm. He had not had livestock for some years and was cropping the field adjacent to the division fence instead of using the field for a pasture. When the fields adjacent to the fence were in pasture, it was indicated that there would be no damage to crops in the event the livestock had gone through the division fence area. In 1971, 20 years after the acquisition of the farm by the defendants Wolstenholm, Mr. Wolstenholm again went to Mr. Swanson and requested that Swanson undertake the maintenance of the north portion of the north-south division fence in accordance with the apparent custom in Whiteside County. When Swanson refused, the Wolstenholms selected a fence viewer under the terms of the Illinois Fences Act (Ill. Rev. Stat. 1971, ch. 54), and gave notice of that fact to Swanson. The Swansons then selected a fence viewer and gave notice of this fact to the Wolstenholms. The two fence viewers then went out onto the adjoining farms, examined the division fence and talked to the Swansons and the Wolstenholms. The same day tire fence viewers made a decision which they reported in writing and mailed to the attorneys for each of the parties, in accordance with the Illinois Fences Act. (Ill. Rev. Stat. 1971, ch. 54, sec. 9.) The decision changed the practice which had been followed previously by plaintiff and defendants with respect to maintaining the north-south division fence and found that defendants should maintain the south half of the north-south division fence as they had desired and that plaintiff should maintain the north half of the same division fence.

There was evidence that the custom in the community where the farms were located was that the owner took maintenance of the portion, of the fence to his right as he faced the fence from his own land. There was also evidence that a creek crosses or goes through the north half of the north-south division fence in two places, and, where the fence crosses the creek, flood gates or flood fencing are required. This means that considerable maintenance is necessary with flood gates because, when there is high water, flood gates must be replaced.

The first issue for consideration is whether plaintiff is entitled to seek judicial review of tire fence viewers’ decision. Defendants contend that the fence viewers’ decision is final and binding upon the parties to the dispute and that appeal is not authorized. The trial court apparently accepted this construction of the Fences Act. By the terms of the Fences Act, Ill. Rev. Stat. 1971, eh. 54, sec. 9, it is provided as follows:

“The two fence viewers so chosen shall examine the premises, and hear the allegations of the parties. In case of their disagreement, they shall select another fence viewer to act with them; and the decision of any two of them shall be final upon the parties to such dispute, and upon all parties holding under them.” (Emphasis added.)

There is nothing in the Act which indicates what a party who may be dissatisfied with the fence viewers’ decision may do to obtain relief. The trial judge ruled that he did not believe that either injunctive relief or a declaratory judgment action were appropriate remedies, and, in referring to the Fences Act, said that the decision of the fence viewers “shall be final upon the parties to such dispute.” It was the apparent conclusion of the trial court that the parties were bound by the decision of the fence viewers and could not then appeal to the court for relief from such determination. No Illinois predecedents have been directed to our attention on the precise issue. We find some guidance in decisions of the courts of other states. In the language of such cases as McKeever v. Jenks, 59 Iowa 300, 13 N.W. 295, at 296-297, the Iowa Supreme Court stated, “the fence viewers in this case determined the sufficiency of the hedge and its value. The Statute clothes them with jurisdiction to decide upon these matters. * * * Their decision upon questions within their jurisdiction is conclusive.” In the Iowa case of Scott v. Nesper, (Iowa 1922) 188 N.W. 889, 892, the court found that a decision of fence viewers was final and binding upon the parties unless appealed from. In the Michigan case of Rogers v. Van Blarcom, 28 N.W.2d 101, at 103, the Supreme Court of Michigan stated:

‘While the laws of Michigan do not provide for an appeal from the determination of fence viewers, yet a court of chancery can review such action on the part of the fence viewers and annul their determination when it is found that their determination was arbitrarily made or inequitable to either of the interested parties.”

Despite the lack of specific provisions for appeal, we believe that a party is legally entitled to seek judicial review of the fence viewers’ decision in Illinois for the purpose of determining whether such decision was arbitrary and inequitable. We agree with the Supreme Court of Michigan as hereinabove noted in the Rogers v. Van Blarcom case.

The only remaining question is whether the evidence established by a preponderance that the fence viewers’ decision in this cause was arbitrary or inequitable. From the record it is apparent that Mr. Wolstenholm complained to Mr. Swanson as soon as he discovered the manner in which the fence was being maintained and had several discussions with Mr. Swanson concerning the fence in the years following. No equitable estoppel can be invoked as against the Wolstenholms since they did not by representations or acts induce the Swansons to alter or change their position in any material respect in the practice of maintenance and repair of the bordering fence for the 20 year period. (Ptaszek v. Konczal, 7 Ill.2d 145, at 153; Skelly v. Ersch, 305 Ill. 126, at 133.) So far as the record is concerned, while they proceeded with maintenance for a period of many years of the portion of the fence on which the flood gates were located, the Wolstenholms never acquiesced in such arrangement.

There is a conflict of evidence as to whether it was the custom in the vicinity in which the fences were located to maintain the portion of the fence to the right of the owner as he faced the fence. There was evidence that usage by the parties could establish a contrary arrangement. It is clear, however, that in the event of a dispute with respect to what sort of arrangement the parties should be required to accept, a determination of such dispute can be made by fence viewers. While the contention of plaintiff is supported by some evidence in the record of the long-established practice of maintaining the north-south division fence between the lands of the plaintiff and defendants (which practice had been initiated by the Swansons and a prior owner of tire Wolstenholm farm), there was also evidence of the custom relating to maintenance of fences in Whiteside County which was inconsistent with such arrangement. There was evidence that the Wolstenholms had no notice of any previous agreement, oral or otherwise, and they would, therefore, not be bound by such agreement with a predecessor in interest. Rogers v. Van Blarcom, 28 N.W.2d 101.

The legislative act vested a conclusive right of determination in the fence viewers subject only to review to determine whether the decision is arbitrary or inequitable. Acts of this type have been held to be Constitutional. (McKeever v. Jenks, 59 Iowa 300, 13 N.W. 295.) In view of the nature of the Act, we feel that we must give weight to the Illinois Statute which reposes in fence viewers a right of determination which is expressed as being “final” and that a court of review should not set aside such determination unless the record clearly and unequivocally shows that the determination was arbitrary or inequitable. From a review of the evidence in the present case we do not believe that the fence viewers’ determination could be classified as arbitrary or inequitable. A decision supporting the view of either plaintiff or defendants by the fence viewers would have been appropriate in this case in the state of tire record and should be affirmed on appeal. We find that the record does not justify a conclusion that such determination was arbitrary or inequitable.

The judgment of the circuit court of Whiteside County is, therefore, affirmed.

Affirmed.

STOUDER and SCOTT, JJ., concur.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas E. Hurley, Defendant-Appellant.
    (No. 11557;
    Fourth District
    March 1, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Walter H. Kasten, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The circuit court of Sangamon County sentenced the defendant to a term of two to five years in the penitentiary on a jury verdict finding him guilty of burglary. Issues raised are (1) the State failed to prove the defendant guilty beyond a reasonable doubt by failing to prove the ownership of the property as alleged in the burglary indictment; (2) an illegal search of the automobile; (3) failure to interrogate jurors on whether or not they had read newspaper articles in the Springfield papers; and (4) prejudiced statement of the prosecutor in closing argument.

The indictment alleged in its material part that “Douglas E. Hurley and Ronald E. Brunner, committed the offense of BURGLARY, in that they, without authority, knowingly entered a building at 2625 South Sixth Street, Springfield, Illinois, belonging to Sunshine Oil Co., Inc., doing business as Site Service Station, with tire intent to commit therein a felony”. It is at once apparent that we do not deal with the sufficiency of an indictment. We do deal with the sufficiency of the evidence to sustain the allegations in that indictment. We can find no reference in the testimony to Sunshine Oil Co., Inc. Keith Wells testified that he was the manager of the Site Service Station at 2625 South Sixth Street, Springfield, Illinois, stated that it was just north of the Supper Club and just north of the station is an apartment building. The testimony does not disclose whether Site Service Station is a trade-name used by Sunshine Oil Co., Inc., or whether it is some other type of legal entity. There is no question in this record but that the property was sufficiently identified, that the defendant had no authority to enter it in the early hours in the morning, and is amply sufficient to locate and precisely identify the place burglarized for purposes of double jeopardy and for purposes of making a proper and adequate defense.

In People v. Boyden, 7 Ill.App.2d 87, 129 N.E.2d 37, the court had occasion to consider the terms “manager”, “operator”, “proprietor”, or “conductor” and stated these were not technical terms of art, but were common, ordinary, everyday terms having a reasonably well-understood acceptance in meaning and construed the three as synonymous. In People v. Armour, 133 Ill.App.2d 126, 263 N.E.2d 885, the court held that an indictment alleging that the defendant entered Walgreens Drug Store, “the property of Lawrence Richard Plunkett” was sufficiently established by the testimony of Plunkett that he was the manager of the store and his testimony that “I am in complete charge of the store at all times” was sufficient to establish occupancy and possession, and to establish the charge laid in the indictment. Legal title was not required. In the case at bar, the manager testified unequivocally that he was the manager of the Site Service Station. In the two cases cited, the term “manager” is held to sufficiently support a burglary indictment charging ownership. Indeed common sense teaches us that one who is managing a business can hardly do so without having some semblance of legal control, possession or otherwise. The record is clear that the term “Site Service Station” served the purpose of precisely and carefully identifying the property entered. There seems little doubt but that the evidence here offered meets the requirements of the statute and fully protects the defendant in his preparation for trial, his shield against a second prosecution, and certainly establishes that he had no right of entry and shows no prejudice. See People v. Viar, 131 Ill.App.2d 983, 268 N.E.2d 872; People v. McClain, 6 Ill.App.3d 451, 285 N.E.2d 239; People v. Kaprelian, 6 Ill.App.3d 1066, 286 N.E.2d 613.

In People v. Ogden, 123 Ill.App.2d 46, 259 N.E.2d 361, the indictment charged ownership by A and a lease by B and the court there stated that proof of operation by the lessee was sufficient evidence of ownership and established her right to possession as against the defendant. The name of the lessee, Madeline Gibson, was mentioned both in the indictment and in the proof, and the property was otherwise thoroughly identified. There the conviction was affirmed. In People v. Harden, 42 Ill.2d 301, 247 N.E.2d 404, the indictment charged a theft of a ring, “the property of Gordon Brantley”. The proof showed the ring belonged to a partnership consisting of Gordon Brantley and his wife. The court held that there was sufficient proof of ownership although obviously a technical variance between allegation and proof. In People v. Foster, 30 Ill.2d 106, 195 N.E.2d 700, the indictment charged that the apartment house was the property of Nickerson and the evidence showed that he in fact was simply a tenant, but that his possessory interest as such was sufficient to establish occupancy or possession as a tenant under a charge of ownership. It is thus clear that every variance is neither fatal nor does it mandate a new trial unless prejudices can be shown. It wasn’t here.

The defendant suggests that he did not receive a fair trial because the trial court did not interrogate the jury as to whether or not they had read newspaper accounts of the trial on the first and second days of the trial. Defendant cites our opinion in People v. Cox, 74 Ill.App.2d 342, 220 N.E.2d 7, and People v. Cain, 36 Ill.2d 589, 224 N.E.2d 786, as authority for the proposition that defendant did not receive a fair trial. The defendant completely misapprehends the purport of both opinions and the newspaper articles therein discussed contained items prejudicial and far afield from the articles introduced in evidence here. An examination of the articles in the newspapers here indicate that they were a fair presentation of testimony heard in open court and the objection that this gives the jury unnecessary cumulative evidence is without merit. It is difficult to see how there can be a prejudicial effect from a newspaper item quoting parts of the testimony heard in the trial and which otherwise contained no prejudicial testimony or comment.

The defendant likewise states that he did not receive a fair trial because the State’s Attorney in his closing argument characterized the defendant as a “convicted burglar who is trying to stay out of the penitentiary”. This takes text out of context, a practice that this court has repeatedly condemned. The defendant took the stand in his own defense and admitted that he was a convicted burglar and on probation at the time of the alleged occurrence. In his closing argument, the State’s Attorney in discussing the evidence stated: “Against this evidence you have Douglas Hurley and his mother saying he was home, so it all boils down to this. Who are you going to believe? Are you going to believe Vern and Cathy Reed and our police officers, or are you going to believe a convicted burglar who is trying to stay out of the penitentiary?” The State’s Attorney was properly commenting on the credibility of the defendant and his witness and this is proper and approved trial practice. People v. Forbis, 109 Ill.App.2d 220, 248 N.E.2d 298; People v. Tyson, 130 Ill.App.2d 140, 264 N.E.2d 403; People v. Jones, 125 Ill.App.2d 168, 260 N.E.2d 58.

Complaint is also made that a sledge hammer, a screwdriver, a flashlight, a pair of gloves, a chisel and a driver’s license were the fruits of an illegal search and seizure and improperly admitted into evidence. The defendant had been identified by the Reeds. He was arrested at his residence by police officers. As they walked by a Buiclc automobile it compared favorably to the car identified by witnesses as having been behind the Site Service Station at the time of tire occurrence. They looked into the car with flashlights and observed a sledge hammer according to the testimony of one officer. According to the testimony of another officer, who identified a photograph of the inside of the car with its contents as it appeared at the defendant’s residence, he stated that he looked into the back and front seats of the car and saw the objects inside which were a radio, screwdriver, flashlight and chisel. The car was taken to the county building and was there searched again. We perceive no error in this procedure. In People v. Bombacino, 51 Ill.2d 17, 280 N.E.2d 697, an officer was investigating a crime involving a killing. The windows of an automobile owned by the defendant were open. The officer flashed his flashlight into the automobile and saw a baseball bat in the back seat, with the small part on the floor and the fat part upright. There was a spot on the fat part of the bat which appeared to be blood. A motion to suppress the bat was denied, which from the testimony was involved in the killing, and this was affirmed by the Supreme Court. The case here is thus quite similar to Bombacino and quite different from Coolidge v. New Hampshire, 403 US 443, 29 L.Ed.2d 564, 91 S.Ct. 2022. In Coolidge, the car under observation had been under observation for quite some time and the police were fully aware of the probable role of the automobile in that case. There was ample time to obtain a warrant. In our case, the automobile belonged to the mother and there was a reasonable basis for searching it promptly and releasing it to the mother. With the defendant under arrest, his mother might well have driven the car, removed tire tools or altered the contents of the interior. Since the defendant was also charged with burglary, there was a possibility that tliere might have been stolen goods in the car, since cigarettes were strewn around on the floor at the service station. A second search took place at the county building. With reference to the subsequent search at the county building garage. Mr. Justice Stewart in a footnote in Coolidge states: “The rationale of Chambers is that given a justified initial inclusion, there is littie difference between a search on the open highway and a later search at the station”. Concluding as we do that the initial inclusion and search at the defendant’s residence was justified as part and parcel of the arrest, it follows that the search at the county building was likewise justified when done immediately after the defendant was booked.

There being no error in the trial of this case, the judgment is accordingly affirmed.

Judgment affirmed.

TRAPP, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Howard G. Woodson, Defendant-Appellant.
    (No. 11595;
    Fourth District
    March 1, 1973.
    Matthew J. Moran, of Defender Project, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Scott B. Diamond, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. JUSTICE SMITH.