author: MR. JUSTICE ABRAHAMSON

text:
    Margaret Palsir, Plaintiff, v. Willard McCorkle and Sharon D. Leonard, Defendants. Willard H. McCorkle, Plaintiff-Appellant, v. Sharon D. Leonard, Defendant-Appellee.
    Gen. No. 65-131.
    Second District.
    May 13, 1966.

      Rathje, Woodward & Dyer Associates, of Wheaton, for appellant.
    Pope joy, Bowman, Unverzagt & Nelson, of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of DuPage County entered on a jury verdict finding against Plaintiff-Appellant, Willard McCorkle (hereinafter called plaintiff) on his complaint, and against Defendant-Appellee, Sharon D. Leonard (hereinafter called defendant) on her counterclaim.

The controversy arose from an automobile accident that occurred on May 1, 1962, at the intersection of 55th Street and Garfield Avenue in the Village of Hinsdale. The defendant was then an 18-year-old student at Hinsdale High School. She was driving a 1956 Thunderbird automobile in a westerly direction on 55th Street at approximately 6:00 p. m. Three other girls, all classmates of the defendant, were passengers in the car and sat with her on the front seat. The plaintiff was traveling alone in an easterly direction on 55th Street on his way home from his place of employment. Traffic lights were in operation at the intersection at the time of the accident. The plaintiff turned left to proceed north on Garfield Street when he was struck with great force by the Thunderbird at the center of the right side of his vehicle.

The lengthy record contains a great deal of conflict as to the speed of the respective automobiles, the condition of traffic, the use of turn directors, and other factors concerned with the ultimate liability for the accident. The nature of this appeal, however, precludes the necessity of examining these factors in great detail.

The amended complaint of the plaintiff alleged in Count I that the defendant was guilty of negligence, and, in Count II, that she was guilty of wilful and wanton conduct. Defendant’s answer denied those allegations and alleged, by way of counterclaim, that the accident was caused by the negligence of the plaintiff. After the closing of the proofs the plaintiff tendered a verdict form as follows:

“In the suit brought by Willard H. McCorkle against Sharon D. Leonard, and a Counterclaim brought by Sharon D. Leonard against Willard McCorkle, the parties are:
Plaintiff: Willard H. McCorkle
Defendant: Sharon D. Leonard
Counter-Claimant: Sharon D. Leonard
Counter-Defendant: Willard H. McCorkle
This form is to be used if you find in favor of the Plaintiff, Willard H. McCorkle, on his Complaint and against the Counter-claimant, Sharon D. Leonard, on her counterclaim.
We, the Jury, find in favor of the plaintiff, Willard H. McCorkle, and against Sharon D. Leonard on Count I and/or Count II of Willard McCorkle’s Complaint.
We assess Willard H. McCorkle’s damages in the sum of $-.
We further find against Sharon D. Leonard and in favor of Willard McCorkle on Sharon D. Leonard’s counterclaim.
Foreman”

The trial court rejected that form as an incorrect statement of the law and used, instead, the following form tendered by the defendant, to-wit:

“We, the Jury, find in favor of Willard McCorkle and against Sharon D. Leonard on
Count I or Count II, Insert one only
of Willard McCorkle’s Complaint.
We assess Willard McCorkle’s damages in the sum of $-.
We further find against Sharon D. Leonard and in favor of Willard McCorkle on Sharon D. Leonard’s counterclaim.
Foreman”
The verdict returned by the jury reads as follows:
“We, the Jury, find against WILLARD McCORKLE and for SHARON D. LEONARD on WILLARD MCCORKLE’S complaint. We further find against SHARON D. LEONARD and for WILLARD MCCORKLE on SHARON D. LEONARD’S counterclaim.” (Signatures of jurors affixed on bottom thereof.)

Plaintiff urges that his form of verdict was a correct reflection of the law on the subject and that the form used did not provide for all possible alternatives that the jury could decide and was, as a consequence, erroneous, confusing and improper. He also argues that the defendant was improperly using the general verdict form for a special finding of fact that should be ascertained by the submission of a special interrogatory.

To support his position that his tendered verdict form properly reflected the law, plaintiff cites certain cases as to the nature of wilful and wanton conduct. Kunz v. Larson, 15 Ill App2d 126, 145 NE2d 746; Gannon v. Kiel, 252 Ill App 550; Trennert v. Coe, 4 Ill App2d 166, 124 NE2d 79; Brown v. Illinois Terminal Co., 319 Ill 326, 150 NE 242. These cases hold,., very generally, that wilful and wanton conduct need not necessarily involve a deliberate or intentional act by the wrongdoer but may arise from a course of action which shows an utter indifference to or conscious disregard for the safety of others. Plaintiff uses these cases to support his conclusion that it would not be inconsistent for a jury, under certain circumstances, to find a person guilty of negligence and wilful and wanton conduct and that, therefore, only his form provided all possible alternatives for the jury to consider.

In the recent case of Eggimann v. Wise, 41 Ill App2d 471, 191 NE2d 425, this court considered a situation comparable to the present one. Complaints seeking recovery for personal injuries arising out of an automobile accident contained separate counts alleging negligence and wilful and wanton conduct respectively. The verdict forms submitted to the jury were completely confusing as to the necessity of finding on one, both, or either of the counts. The court, in reversing the trial court’s judgment entered on the verdict of the jury, stated in part as follows, at pages 483 and 484:

“The deaths of Walgrave and Eggimann could not have been caused wilfully or wantonly, — and negligently, — at the same time; negligence and wilfulness are unmixable; a verdict finding the defendant guilty of negligence is, in effect, a verdict finding the defendant not guilty of wilfulness and wantonness; negligence is not wilfulness or wantonness, and wilfulness or wantonness is not negligence.” (Citations omitted.)

We are unable to say that the verdict form tendered by the plaintiff correctly stated the law in the light of this decision. Clearly, the jury could not properly have found for the plaintiff on Count I and Count n of his complaint and be in accord with the Eggimann case. The verdict form used was adequate and we do not feel that its use could confuse the jury, particularly when viewed in the light of the verdict returned. Furthermore, we do not feel that it was an attempt to seek a special finding of fact through a general verdict as contended by plaintiff. It is not necessary to compel a jury to indicate upon what theory it has chosen to base its general verdict.

Plaintiff also argues that the trial court committed reversible error in its refusal to strike certain testimony elicited through cross-examination of the plaintiff in regard to prior conditions of ill-being. On direct examination, the plaintiff testified that before the accident he was in “very good” health; that he was able to perform the physical work required of a normal homeowner and that he participated in certain sports. He stated that after the accident he “had pain in my entire right side,” and that his right arm and leg continued to ache and cause him general discomfort. Counsel for the defendant, on cross-examination, asked the plaintiff about statements he had made to a Dr. Schoenberger in January of 1958, concerning discomfort to his hip, knees, and groin. No objection was made to the questions. Plaintiff responded that he did not remember the statements and was “not sure” that he knew the particular physician. On redirect examination, however, plaintiff stated that Dr. Schoenberger was “probably” the doctor who treated him for a hernia operation in January of 1958, and that he “imagined” he gave him, with his general medical history, a statement regarding “intermittent mild aching in the knees” and of pain in his right flank. Plaintiff moved, several days after this testimony was presented, that it be stricken from the record and the jury be instructed to disregard it. His motion was denied.

Plaintiff contends that the prior conditions of ill health alluded to during the cross-examination were never properly connected to the injuries suffered as a result of the accident and that as a result they could nave no effect but to prejudice the plaintiff in the eyes of the jury as either a malingerer or a chronically ill person. In support of his contention, plaintiff relies heavily on the recent case of Marut v. Costello, 34 Ill2d 125, 214 NE2d 768, wherein the Supreme Court affirmed the judgment of the Appellate Court in Marut v. Costello, 53 Ill App 2d 340, 202 NE2d 853. In the Marut case the plaintiff suffered injuries to her lower back in the accident which was the subject of the lawsuit. On cross-examination, plaintiff was questioned closely in regard to an injury to her upper back which had occurred two years earlier. Objections were promptly made but counsel for the defense repeatedly promised to connect the injuries by competent evidence. This was never done and the reviewing courts reversed on the grounds that the testimony should have been stricken. The distinction between the cases is obvious. Plaintiff here complained of injuries to his entire right side. The cross-examination elicited testimony regarding earlier trouble with his right flank, groin and both knees. The prior condition of those parts of his body injured in this accident were proper subjects for consideration by the jury in their deliberations.

The other cases cited by plaintiff in this regard refer to situations where the integrity of a witness is subject to question in the eyes of the jury by innuendo employed during cross-examination. Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348; Gordon v. Checker Taxi Co., 334 Ill App 313, 79 NE2d 632. In those cases, the witnesses explicitly denied the prior ill health or earlier accidents and there was no other evidence to establish their existence. The purpose of striking such testimony is to prevent the possibility that the jury will consider a fact not in evidence — prior ill health or injury — or that they will consider that the witness has a predisposition to personal injury. Here, the evidence of the fact of prior complaints was furnished by the plaintiff himself and was properly before the jury. Hoffman v. Wilson, 60 Ill App2d 396, 403, 404, 208 NE2d 607.

Lastly, plaintiff urges that repeated cross-examination of the plaintiff over long periods of time inevitably confused him and created a poor impression on the jury.

It is well known that the scope and extent of cross-examination rests within the sound discretion of the trial court. Chamness v. Dawson, 44 Ill App2d 176, 194 NE2d 538. This case was consolidated for trial with an action filed against both parties by a passenger in defendant’s car. No objection to the consolidation was made by plaintiff. It was inevitable that as a consequence of the consolidation and of the nature of this case that the trial would be a long and arduous one. We find nothing in the record that indicates that the cross-examination permitted by the trial court was improper or that, as a result, the plaintiff was denied a fair trial.

For the reasons stated, the judgment of the Circuit Court of DuPage County will be affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arnold Wayne Neukom, Defendant-Appellant.
    Gen. No. 50,143.
    First District, Fourth Division.
    May 13, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

CHARGE

Armed robbery.

DEFENSE AT TRIAL

Alibi.

JUDGMENT

After a bench trial, the court found defendant guilty and imposed a sentence of five to ten years.

POINTS RAISED ON APPEAL

(1) The indictment was insufficient for lack of specific allegations as to the time and place of the crime.

(2) The charge was not proved beyond a reasonable doubt because the identification evidence was unbelievable.

EVIDENCE

Testimony of State Witnesses

David Magidson

He was the clerk on duty at Foremost Liquor Store, 7138 Higgins, Chicago, on February 17, 1964 at about 9:15 p. m. At that time there came to the counter a man who was about 5'8" tall, 160 pounds, 23 years old, wearing a coat, cap, sunglasses, and with three bandages, two inches wide, horizontally covering parts of his forehead, nose and chin. The man asked for and was given cigarettes by Magidson who stood on the other side of the counter at a distance of not more than three feet. When payment was requested, the man exposed a gun, pointed it at Magidson and demanded all the money in the register. Approximately $1,000 was turned over to the robber who, upon leaving the store, warned Magidson that he would be killed if he attempted to follow.

Five weeks later, when defendant was arrested, Magidson was called to the police station, and there, upon viewing a lineup of four men, he identified defendant as the robber. At the station he had not seen defendant before he was brought in for the lineup. Sunglasses were then put on defendant, and Magidson reaffirmed his identification. Others in the lineup did not wear sunglasses.

At the trial Magidson again made a positive identification of defendant. He also testified that the gun found in defendant’s possession at the time of arrest resembled the gun used in the robbery.

Frank Zuehlke

He was the stock clerk at the liquor store at the time of the robbery. His testimony as to the occurrence corroborated that of Magidson. Zuehlke had been standing behind Magidson, four or five feet from the robber, while the latter pointed a gun at Magidson for “a good minute.”

Zuehlke did not attend the lineup, but he identified defendant in court at the preliminary hearing and again at the trial. On neither occasion did defendant wear sunglasses, bandages or hat. Zuehlke also identified the gun in evidence at the trial as the same one used in the robbery.

Sergeant Joseph Rylko

He was the arresting officer who saw defendant commit a traffic violation on March 26, 1964. When he signalled defendant to pull over, the latter turned and looked at Rylko who noticed a gauze bandage held down over defendant’s nose by Band-Aids. Defendant started to get out of his car but Rylko told him to stay in the car. While Rylko was sending a radio message for assistance, defendant sped away and Rylko gave chase. Defendant’s car crashed into a culvert. Defendant abandoned the car and ran through a vacant lot with Rylko in pursuit on foot. While running, defendant tore the bandage from his face and dropped it on the ground. After Rylko fired a warning shot in his direction defendant stopped and surrendered.

Returning to defendant’s car, Rylko there found a pistol on the floor. At first interrogation defendant said he didn’t know how the gun had gotten into his car. Later he said that he had been doing some work on it for the owner, a friend of his. He also explained that the gauze on his face was to cover a blemish, and that he had tried to run away because he was on parole and didn’t have permission to drive a car. Defendant denied that he had committed the robbery.

Defendant had not been brought into the lineup alone prior to identification by Magidson. During the viewing each man in the lineup wore sunglasses at some time. On interrogation defendant said that he had been working full time from 4:00 p. m. to midnight, but investigation disclosed that he had not worked on the evening of the robbery.

Testimony of Defendant

On the evening of the robbery defendant had become sick at work and at about 8:00 p. m. had gone home and remained there through the next day. When he was stopped by Sgt. Rylko he was not wearing anything on his face, though he had been wearing a bandage for a bum suffered at work. He sought to get away because he feared parole violation for driving a car without permission.

Before the lineup the police exposed defendant alone to Magidson. At first Magidson did not recognize anybody in the lineup, and identified defendant only after being asked several times by the officers. Defendant was the only man in the lineup wearing sunglasses and a hat. Defendant did not commit the robbery.

It was stipulated that on November 20, 1961, defendant had been convicted of robbery and given a sentence of two to four years. He had also been given probation in March 1960 for driving a car with a revoked driver’s license.

OPINION

(1) Defendant’s first point on appeal (insufficiency of the indictment) was waived on oral argument in the light of the intervening decisions in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97; and People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed 34 Ill2d 179, 214 NE2d 765.

(2) Defendant’s argument that this conviction cannot stand because based upon unbelievable identification evidence is also without merit. The identification testimony may not be ignored, but must be accorded such weight as is justified by the circumstances surrounding the identification procedures at the police station. People v. Crenshaw, 15 Ill2d 458, 464, 155 NE2d 599; People v. Cobb, 52 Ill App2d 332, 338, 339, 202 NE2d 56. And. the trial court’s judgment as to the credibility of the witnesses will, of course, not be disturbed simply because there is a conflict in the testimony. People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631; People v. Johnson, 47 Ill App2d 441, 442, 443, 198 NE2d 173. Positive and credible testimony of even a single witness (in this case there were two) is sufficient although flatly contradicted by the accused. People v. Solomon, 24 Ill 2d 586, 591, 182 NE2d 736.

We conclude that the evidence in the instant case adequately supports the conviction and does not “justify a reasonable doubt of guilt.” People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920; People v. Stewart, 62 Ill App2d 428, 434, 211 NE2d 154.

DECISION

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1963), eh 38,
      §18-1 (a). A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
      §18-2(a). A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon.

       Part of the gauze bandage was later retrieved and introduced in evidence by the State at the trial.

       This was the gun introduced in evidence and identified by Zuehlke and Magidson as the same or similar to the gun used in the robbery.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Porter, Defendant-Appellant.
    Gen. No. 50,265.
    First District, Fourth Division.
    May 13, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Thomas P. Cawley and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, Clarence Porter, was found guilty of rape after a bench trial and was sentenced to the penitentiary for a term of not less than five nor more than twelve years. In this appeal defendant contends that the element of force was not established and that his identification was not sufficiently positive.

The complaining witness, Della Beasley, testified and stated that she was nine years old and that on the evening of May 13, 1964, she was babysitting in the apartment of Minnie Harris where the alleged rape took place. The remainder of her testimony in relevant part is as follows:

Miss Minnie left the basement apartment with Joe and Clarence Porter. I see Clarence Porter here in court. After they left, Clarence Porter came back. Clarence Porter came back, one of Minnie’s children opened the door. He took me in the bathroom and laid me on the floor. He told me if I don’t shut up he’d choke me. He got on top of me. Then I told him to get off and he wouldn’t get off. Then he took me in Miss Minnie’s room. He laid me on the bed. Then I told him to get up and he wouldn’t get up. Then he pee’d on me. When I went to Minnie’s apartment I did not have any underclothes on. He put his stick in me and I told him to get off and he wouldn’t get off. Then I heard somebody knocking. The little girl said, “Who is it?” And he said, “Shut up.” Then he got up and ran out the back door. I went in the kitchen and locked the door. Then I came back and then I told Miss Minnie what happened. She called the police. I went to the hospital. I never saw Clarence Porter before that night The man who came back was the man who walked out with Minnie and Joe, and that is the same man that’s in the courtroom. I had blood on me that day. It was not on my clothes. The night I was babysitting, there was blood on me after Clarence Porter came back. There was no blood on my clothing that night. My dress was up.

On cross-examination she stated that:

All three of those people left the apartment about two hours after I arrived. It was dark when I arrived at the apartment. While I was in the apartment I was playing in the bedroom with Minnie’s children. The three adults stayed in the front room. I did not enter the front room at all. When I first entered the apartment, I went in the front room and remained for a minute. Then Minnie told me to take care of the children. I left the room. I did not return to the front room again.
I had never seen him [defendant] before that day. I took a real good look at him that day. I don’t know what he had on; what kind of clothes. He had a mustache.

The witness offered no response to questions on cross-examination as to the reason she was sure that it was the defendant who committed the alleged rape and after repeated questioning finally stated that it could have been a man other than Clarence Porter. However, on redirect examination the witness again identified Clarence Porter as the assailant.

Minnie Harris testified and stated that:

On May 13, 1964 I lived at 708 South Central Park. In my home with me at that time were Joe Andrews, and a boy named Clarence Porter. Also, Della Beasley, and my other children. Della Beasley arrived after Clarence Porter arrived. Clarence Porter had on black pants, white shirt, green sweater, and a brown coat. He did not take his sweater off while I was there. I went to the store while Clarence Porter and Joe Andrews were in my apartment with my children. I returned from the store and later left again with Joe Andrews and Clarence Porter. When we left together, Clarence Porter had the green sweater on. I saw the sweater again wrapped up in the blanket. And there was some blood in the bed and the bed was wet, and I found her slip [referring to Della] halfway up in the bed mattress and it was wet and had some blood on it.
Earlier that evening, I left the apartment [at approximately 9:30 p. m.] with Porter and Andrews. I went over to a friend of mine to pick up a dress. We went up to the corner, like a store and a tavern together, so we made a phone call to call a cab and so Clarence and Joe Andrews went on with me to pick up the dress, so Clarence stayed on the corner.
'When I returned home, I saw Della Beasley. All my kids were on top of her, she was wet and I took her in the bedroom and looked to see if there was anything wrong with her; I looked at my little girl, nothing was wrong with her; then I looked at her and seen she was wet and her panties was bloody. I called the police.

The witness also stated that she and Joe Andrews left the defendant at about 9:40 p. m. and that they returned home at approximately 10:00 p. m.

Joe Andrews testified and identified the sweater described by Minnie Harris as belonging to the defendant. He also stated that defendant was wearing the sweater at the home of Minnie Harris and that he never saw him take it. off. Andrews testified that he, Minnie Harris and defendant left the apartment of Minnie Harris at about 8:00 p. m. but did not know at what hour they returned thereto.

Ethel Beasley, mother of Della, testified that on the date in question Della requested that she be allowed to babysit for Minnie Harris and that she took Della to Cook County Hospital later that evening.

Dr. Ozeilek Gorkmen testified that he is employed at the Cook County Hospital and that:

I examined the child, I put a speculum in her vagina. I found a small laceration on the hymen at four— and there is a small erosion in the anterious wall of the vagina.
This laceration was on the hymen, it was a small one, and to my opinion, anything inserted in the vagina can cause this laceration.

Detective John Cioe testified that he placed Clarence Porter under arrest on May 14, 1964, at approximately 6:30 a. m. He further stated that:

. Then I asked him again what he had done to the girl and he wouldn’t say. I asked him if he had intercourse with her and at this time he said, “I don’t know why I did this.” He said, “Send me back, send me back to the hospital.” I asked him, “Which hospital?” He said, “Chicago State.” I asked him if he would give me a written statement as to what went on and he said he would. We started the statement but we never got through with it, he began fumbling about the room, fell down, he said he was having an attack, to get him to a doctor, so, we did. That ended our interview.

On cross-examination Detective Cioe testified that:

I was in the interrogation room with the defendant, I would say, between a half hour and forty-five minutes. During this period no one else was in the room that would hear Clarence Porter’s statement. During the interrogation he admitted having committed this rape. I interrogated the defendant about five minutes I’d say before he admitted it. In other words, he admitted to it pretty quickly. I did not call for a court reporter or a stenographer at that time. That is the usual procedure; to reduce this to writing, but it would be done by me. I would take the statement myself. There is a reason why I didn’t take the statement in this case. I started to take the statement, I got the heading in and when I started — I asked him his name, address and date of birth, a normal first question, and at this time he went into his apparent seizure and we called for a squadrol, he said “Get me to a hospital.” And we did.
In the ordinary course of police work, I would not always call another policeman into the room to witness the statement. You see, that is theory, but there are many occasions in the area that I work in where you just don’t have the manpower to do this.

Dr. Emanuel Dvorak testified that he is employed by the City of Chicago at the House of Correction and that:

The police brought in Clarence Porter on a stretcher. I examined him and, he was shackled and uncontrollable, he was mumbling, his words were disassociated, suddenly he got a convulsive seizure.
He was in a convulsive seizure and of course he was speechless at the moment, his head was thrown around from side to side in the carrier, in the litter. I did not run any tests down there to determine whether or not the defendant was under the influence of narcotics.

Defendant testified in his own behalf and denied committing the alleged rape. Defendant further stated that he had loaned the green sweater which was found by Minnie Harris to Joe Andrews and also corroborated the testimony of Minnie Harris as to the hour they left her apartment (about 9:30 p. m.) and the time they parted company (about ten or fifteen minutes later). With regard to his activities after he left Andrews and Minnie Harris the defendant stated that:

... I went down to Harrison and Pulaski and went to the Zodiac. I walked to the Zodiac. When I got to the Zodiac I went inside and stayed there a little while and I came outside and I was talking to a fellow named Robert, and the[n] Elijah came in the door, came in the entrance of the door. This was about five or ten minutes after 10 ... . We had a conversation and then we left. That was about 11:00.

Elijah Perkins testified that he had known Clarence Porter about eight or ten years; that he saw the defendant standing in front of the Zodiac at approximately 10:15 p. m. on the night in question; and that he didn’t know whether the defendant had been in the tavern previously that evening.

Robert, referred to by the defendant in his alibi testimony, did not testify.

Defendant first argues that the element of force was not established since the nine-year-old complaining witness did not state in her testimony that she was physically harmed, that she was placed in fear for her life or that she fought with her assailant. The testimony of Della Beasley indicates that the defendant threatened to choke her if she didn’t shut up; that defendant was lying on top of her; and that she told him to get off. In People v. Smith, 32 Ill2d 88, 203 NE2d 879, the court stated at page 92 that:

However, resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, nor where she is overcome by superior strength or paralyzed by fear.

We find that the element of force was established beyond a reasonable doubt.

Defendant next argues that his identification was vague, doubtful and uncertain and therefore he was not proven guilty beyond a reasonable doubt. The record shows that (1) while the nine-year-old complaining witness waivered somewhat under intense questioning during cross-examination her identification of the accused both on direct and redirect examination was positive; (2) the sweater which was found in the bed was positively identified as belonging to the defendant and there was evidence from which the trial judge could believe that it was the defendant who left it there; (3) the period of time that Minnie Harris was absent from her apartment was short; and (4) the evidence was insufficient to prove that defendant’s verbal admissions to Detective Cioe were attributable to epilepsy or narcotic withdrawal. The trial judge heard the evidence, saw the witnesses and properly determined the weight and credibility to be given their testimony. As stated by the court in Jorn v. Tallett, 341 Ill App 240, 93 NE2d 82, at pages 246, 247:

The trial judge who sees and hears witnesses is in a much superior position to find the truth than the reviewing court who has before it only the printed page. Well worth repeating in this connection is the language of the judge of the Supreme Court of Missouri in the case of Creamer v. Bivert, 214 Mo 473, 113 SW 1118. “He (Trial Court) sees and hears much we cannot see and hear. We well know there are things of pith that cannot be preserved in or shown by the written page of a bill of exceptions. Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind’s eye of the judge who tries the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sign, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson or the itching over-eagerness of the swift witness, as well as honest face of the truthful one, are alone seen by him. In short, one witness may give testimony that reads in print, here, as if falling from the lips of an angel of light and yet not a soul who heard it, nisi, believed a word of it; and another witness may testify so that it reads brokenly and obscurely in print, and yet there was that about the witness that carried conviction of truth to every soul who heard him testify.”

We will not substitute our judgment for that of the trial judge. People v. Clark, 30 Ill2d 216, 195 NE2d 631.

We find that the defendant was proven guilty of rape beyond a reasonable doubt and therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lester J. Colson, Defendant-Appellant.
    Gen. No. 50,412.
    First District, Fourth Division.
    May 13, 1966.

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

delivered the opinion of the court.

CHARGE

Voluntary manslaughter.

DEFENSE AT TRIAL

Justifiable use of force in defense of person.

JUDGMENT

After a bench trial, the court found defendant guilty and imposed a sentence of three to ten years.

POINTS RAISED ON APPEAL

(1) The charge was not proved beyond a reasonable doubt.

(2) The sentence is excessive.

EVIDENCE

Testimony of State Witnesses

Edward Kendrick and Vander Mayo

These witnesses substantially corroborated each other’s testimony. They went to defendant’s auto shop at 5:30 p. m. on October 4, 1963, and joined a round robin checker game with defendant and decedent, James Jones. After about an hour the game was changed to dice. Whiskey and beer were consumed; defendant drank beer. Defendant lost all his money and asked decedent to lend him four dollars. Decedent declined on the ground that defendant already owed him money. Defendant denied this and called decedent a liar; decedent called defendant a liar. Defendant slapped decedent in the face. Decedent rose from his chair and advanced toward defendant, who backed up and removed a pistol from his belt. Decedent continued to advance.

Kendrick told defendant: “Don’t shoot, leave it go, let it go today.” At that time Kendrick, who is 6'3%" tall, was standing close to defendant and decedent, both of whom were about 5'10" tall and weighed about 160 pounds. Defendant “snapped” the gun two or three times, but it didn’t go off. Then he fired a shot which hit the floor. Then he fired two more shots at decedent. Kendrick was close enough so that the powder blast blinded him temporarily. Decedent did not have anything in his hands and had not been seen to “go into his pockets.”

Decedent walked to an overhead door, lifted it, stag* gered out into the alley about ten feet, and fell. At defendant’s suggestion the three men lifted decedent into a car, and defendant then left. Kendrick and Mayo, picking up a police escort en route, drove decedent to Bethany Hospital where he was pronounced dead on arrival.

Testimony of Defendant

Defendant got into an argument with decedent when the latter refused to lend him any money. Decedent “started at” him, whereupon defendant slapped decedent to keep him away. Defendant then stepped away and drew his gun. The big front door was open. Defendant backed up against a car in the garage, and Kendrick ran between decedent and defendant, telling him not to shoot. Decedent kept coming till he was about two feet away. Defendant then fired one shot at the floor and “two quick shots” with the gun pointed at decedent. The gun did not misfire.

Defendant’s only intention was to stop decedent, not to kill him. Defendant is 5'6" tall and weighs 130 pounds. Decedent was bigger, and usually carried a knife, but defendant saw nothing in decedent’s hands at the time. After Kendrick and Mayo took decedent’s body away, defendant went home. He thought he left the gun on the fender of the car, but he could have put it in a garbage can or just thrown it away. (The gun was never found.)

OPINION

(1) The credibility of the witnesses is essentially a matter for the trial court. There is evidence which, if believed, establishes proof of defendant’s guilt beyond a reasonable doubt.

Defendant was the aggressor verbally as well as physically. Decedent had no weapon and uttered no threat. This being true, and with the large garage door open, defendant’s backing up to a car does not, as his argument implies, give his conduct the status of retreat from a wrongdoer. People v. Durand, 307 Ill 611, 139 NE 78.

Under all the circumstances there existed no reasonable ground for defendant to believe that it was necessary for him to shoot decedent to prevent imminent death or great bodily harm to himself. Ill Rev Stats (1963), c 38, §§ 9-2 (b) and 7-1, set forth above in footnotes 1 and 2.

(2) As to the alleged excessiveness of the sentence imposed, we do not consider that it “constitutes a substantial departure from the fundamental law and its spirit and purpose, or that it is not proportioned to the nature of the offense. . . . Upon a review of the entire record we cannot say that the trial court abused its discretion in this matter.” People v. Miller, 33 Ill2d 439, 444, 445, 211 NE2d 708.

DECISION

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1963), c 38, § 9-2(b):
      A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.

       Ill Rev Stats (1963), c 38, § 7-1:
      A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

       Defendant’s brief: “What more could the defendant have done? He retreated.”

       Among which was the fact that Kendrick, a very large man, was attempting to prevent the fracas.


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Defendant in Error, v. John Washington, Plaintiff in Error.
    Gen. No. 50,670.
    First District, Fourth Division.
    May 13, 1966.

      Mordecai J. Sugarman, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Saméis, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

The defendant, John Washington, was indicted for the crimes of rape and robbery, found guilty in a bench trial, and sentenced by the Criminal Division of the Circuit Court of Cook County to serve a term in the Illinois State Penitentiary of 20 years for rape and 5 to 10 years for robbery. The sentences were to run concurrently. From that finding and sentencing the defendant brings this appeal, and he urges as grounds for reversal (1) that the trial was conducted in a prejudicial manner; and (2) that the evidence was not sufficient to support a finding of guilty. It therefore becomes necessary for this court to review the evidence.

Mrs. Janna Williams, the victim, testified that she was on her way home from work at the Post Office at about midnight on December 19, 1960; that as she entered the hallway to her residence at 7203 Yale Avenue, Chicago, the defendant grabbed her and struck her in the face; that she screamed and the defendant again struck her and took her to the back of the building, threw her on the ground, tore off her underwear and had intercourse with her. She testified that he then took her purse and asked if she had any money; that he took her wallet out of the purse, took her change purse out of her jacket pocket, and told her not to get up until he had left. She stated that he had taken a $5 bill, five singles and about thirty cents; that after he left she got up, went to her apartment on the third floor, and was let into the apartment by her mother. Police officers were downstairs by that time, and they were told to come up to the third floor.

Police Officer Utter testified that when he came to the door of complainant’s residence he found a woman’s shoe; that when he went to the third floor he was told by the complainant what had happened to her; that her clothing was mussed up and she had marks on her face; that he noticed her shoes were missing and that the back of her coat was soiled. The police took her down to their car, then went to the back of the building and gathered up the articles that were strewn there — a bag or purse, its “contents,” and her pants. The police stated that the scene of the incident was a “basement landing” which was covered by an overhead, on which particular spot no snow had fallen, although fresh footprints were found at the rear of the building in the snow which had recently fallen. The police followed the footprints from the scene of the crime across the street [Yale Avenue] into a gangway to the building where the defendant lived. They found a woman’s pink wallet and change purse in the gangway.

The police then went to the apartment of the defendant and when they saw him he was wearing a brown zippered jacket. When they searched him the police found a $5 bill and five singles on his person. Officer Murray testified that defendant’s shoes were very wet. When they told the defendant to get his hat he replied that he didn’t wear a hat but wore a “bandanna” on his head. The complainant had testified that the man who accosted and raped her wore a scarf on his head. The complainant was taken to Englewood Hospital for examination, and the defendant was taken directly to the police station; later the complainant came to the police station and identified the defendant in a lineup. Defendant’s trousers were taken from him, inventoried and sent to the Chicago Police Crime Laboratory, together with a handkerchief taken from the pocket of the trousers.

At the trial a microanalyst employed by the Chicago Police Crime Laboratory testified that defendant’s trousers had a white crust on the front of them which, when examined, was found to be a seminal fluid stain of dead sperm.

The defendant testified at the trial that on December 18, 1960, the night in question, he had shot pool at 63rd and Normal, having arrived there at about 9:30 p. m.; that he left there and took a bus to 69th Street where he went into the 69th Street poolroom and played pool until about 11:20 or 11:30; that thereafter he walked to his home at 7724 Wentworth Avenue; that it was snowing and he took about 10 or 12 minutes to get to his home; that on his way he saw two officers in a police car. He testified that he was wearing a gray overcoat, but nothing on his head. He stated that the trousers he was wearing had spots on them. He further testified that at the time he was arrested he had a five-dollar bill and six one-dollar bills in his pocket; that the officers came to his house about half an hour after midnight; that they asked him what kind of coat he was wearing and he told them it was a gray overcoat, and added that he had three or four overcoats, including one which was a tannish brown; that his shoes were dry at the time and that he had on the same shoes he had been wearing earlier that evening. He denied raping or robbing the complaining witness and denied telling the officers that he wore a “bandanna” on his head instead of a hat.

Johnella Burton testified on behalf of the defendant that she saw him at his house on the 18th of December at about 11:00 p. m.; that she and the defendant had come from a bowling alley to his house; that she left the defendant the following day about noon, and that she had noticed there was a stain on the front of his trousers.

The defendant first argues that the court allowed private investigation and private knowledge to affect the determination of the case and he bases that on the fact that at the beginning of the trial the defendant had requested the court to ask his grandfather or his family if he could get a paid lawyer and the court stated that the defendant’s family had told him they had no money. The public defender had been previously appointed for the defendant, and when called for trial the defendant asked for a lawyer from the Bar Association, which request the court denied. The defendant in this court argues that the statement of the court with reference to the inability of the defendant’s family to pay for a lawyer indicated that the court must have made some private investigation. That, of course, does not follow at all. The court had previously tried and acquitted the defendant on a different charge and could easily have obtained the information in question at the time of the previous trial. See People v. Brown, 64 Ill App2d 203, 212 NE2d 275.

Defendant also urges that the fact that the court refused to substitute an attorney from the Bar Association for the public defender and to continue his trial, indicated that the court was prejudiced against him. There was nothing in the record which would indicate that the court’s refusal to continue the case further or to appoint a different attorney was an abuse of his discretion. People v. Clark, 9 Ill2d 46, 137 NE2d 54; People v. Jones, 51 Ill App2d 391, 201 NE2d 194.

There is nothing in the record to indicate that the court showed “an abrupt, hostile manner towards the defendant.” As a matter of fact, after the discussion with the court concerning defendant’s lawyer, when defendant was properly advised by the court as to his right to a jury trial, the defendant stated, “I know you are a fair Judge because you tried me then. I knows that myself. I will waive the jury.” The court again stated the defendant’s constitutional right to a jury trial, and the defendant signed a jury waiver. The court made various remarks during the time the evidence was being heard, none of which went beyond the proper functions of a trial court in a bench trial. In People v. Wesley, 18 Ill2d 138, 163 NE2d 500, the Supreme Court said:

“. . . A trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure.
“The propriety of judicial examination is determined by the circumstances of each case. . .

In that case, as in the instant case, the trial judge was justified in making such inquiries as he did.

We find that there was no abuse of discretion on the part of the trial judge, nor was there any indicated hostility towards the defendant. There is no indication in the record before us that this point was raised before the trial judge, and there is no allegation that, the defendant’s counsel at the trial was incompetent, nor does the record so indicate. Under those circumstances, even if there had been any objectionable •conduct on the part of the trial judge [which we fail to find], the defendant would have waived it.

At the time of the argument of defendant’s attorney the court interrupted him and questioned him about defendant’s testimony that he had walked four or five blocks in the snow and that his shoes were dry at the time he was arrested. This would seem to be within the rights of a court trying a case without a jury.

The defendant also points out that on direct examination the complaining witness stated that she had two five-dollar bills in her change purse; however, she immediately corrected it on her redirect examination, a matter which the trial court undoubtedly properly considered.

It is further argued in this court that the evidence was not sufficient to prove either that a rape and robbery had been committed against the complaining witness or that the defendant was the culprit. In the trial defendant’s counsel stated to the court that the fact that the witness had been raped and robbed was not contested; that the only issue was as to whether or not the defendant was guilty of the crimes. The testimony of the complaining witness was definite and we have no quarrel with counsel’s statement that where a conviction of rape depends upon the testimony of the prosecuting witness and the defendant denies the charge, the evidence of the prosecuting witness should be corroborated by some other evidence, facts or circumstances in the case. In this case the testimony of the complaining witness was corroborated by the fact that the police officer followed the trail of the defendant and found, in a gangway near his home, a wallet and change purse which were identified as belonging to the complaining witness.

At the time the police arrested the defendant they brought him to the police car where the complaining witness sat, and asked her if he was the man who had previously raped and robbed her, and she then identified him. The argument is made that this is not a proper identification because, even though he was subsequently picked out of a lineup by the complaining witness, the latter was an “enforced” identification. While it is not clear, apparently the defendant is arguing here that in any case where a crime has been committed and the police arrest a person because of a description given to them by the complainant, they cannot bring that person before the complainant unless they have him in a lineup. If that should be declared to be the law, then the squad cars will have to have with them a truck containing a variety of persons so that they can have a lineup on the spot. Such an argument is not logical.

It is also argued that there is no corroboration that the complaining witness had actually been raped, and it is properly stated in the defendant’s brief that in order to sustain a conviction for rape proof of the completed act of sexual intercourse is unnecessary — the slightest penetration is sufficient. People v. Schultz, 260 Ill 35, 102 NE 1045; People v. Ardelean, 368 Ill 274, 13 NE2d 976. However, the defendant argues that it must be proved by the State that the act was against the will of the victim and that penetration occurred, and stresses the fact that there was no evidence introduced by the State as to what was shown by the examination of the complaining witness at Englewood Hospital. That argument answers itself. Unless there was a completed act of sexual intercourse, under the circumstances of this case, it would be hard to believe that evidence of the examination would be of any value whatsoever. As to the requirement that the proof must show that the act was committed by force and against the will of the complainant, the evidence is that the complaining witness was grabbed from behind at the time she had opened the door to enter the building in which she lived; that the complainant started screaming; that the defendant hit her in the face and she fell down; and when she continued screaming he hit her again over the left eye and the bridge of the nose; and that he then dragged her to the back of the building where the act occurred. Officer Utter testified that when he talked to the complaining witness shortly after the incident, her nose was beginning to swell and she already had the markings of a “mouse” under one eye; that her shoes were off and that the back of her coat was dirty.

The first answer is the fact that at the trial defendant’s counsel admitted that the complaining witness was raped and robbed, and consequently that question cannot properly be raised here. However, in any case, the facts in evidence clearly indicate both rape and robbery. The fact that the complaining witness screamed at the time defendant first grabbed her; that thereupon the defendant struck her and she screamed again; that the defendant then struck her so severely that she bore marks of the blows on her face, was sufficient to enable the trier of the fact to determine that the power of the complainant to resist was overcome, either by actual violence physically applied, or by putting her in such fear as to overcome her will, or both. We have carefully considered the cases cited by the defendant and find that they are not applicable because of factual differences. The law governing the degree of force required in a rápe case is laid down in People v. Elder, 25 Ill2d 612, 186 NE2d 27, where the Supreme Court said:

“To warrant a conviction it must be proved beyond a reasonable doubt that the accused had carnal knowledge of the complaining witness forcibly and against her will. (People v. Jeanor, 23 Ill2d 347.) Although there is no fixed rule as to the degree of force required, there must be satisfactory evidence that there was such actual force (People v. Eccarius, 305 Ill 62) or threat of force that the victim’s will to resist was overcome. People v. Finley, 22 Ill2d 525.”

In that case the defendant told the complainant that she “had” to do as he said and that she “wouldn’t get hurt” if she cooperated. At the time the defendant had his right hand in his pocket as though he were concealing a weapon. The court said:

“She could easily have been in fear of bodily harm or even death from defendant’s threatening manner and statements. Her running from the scene at the first opportunity and making immediate outcry to the first persons she found is totally inconsistent with consent. Such actions are quite reasonable for a woman who has through fear been forced to submit to sexual acts. Her testimony was corroborated by the persons to whom she complained, by the finding of the cap in the vacant lot, and by defendant’s presence near the scene. . . .”

This case is directly in point.

In People v. Brown, 29 Ill2d 375, 194 NE2d 326, where the defendant was accused of rape and robbery, the complaining witness maintained that this was done at knife-point. On appeal it was urged, among other things, that the complainant did not offer sufficient resistance. The court said:

“The evidence in this record does not justify the claim of the defendant that the conduct of Mrs. Thomas does not show sufficient resistance on her part to justify a finding of forcible rape. The facts and the surrounding circumstances clearly reveal that both resistance and an attempt to make an outcry by the prosecutrix would have been futile.”

Also see People v. Smith, 32 Ill2d 88, 203 NE2d 879.

In his reply brief defendant refers to another incident which he considers an indication of the prejudice of the trial court. This point was not raised in his original brief, nor argued, and consequently is waived and will not be considered by us. 2 ILP Appeal and Error, § 561, Supreme Court Rule 39.

In the case before us the evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty of forcible rape and robbery. The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roscoe Minor, Defendant-Appellant.
    Gen. No. 50,706.
    First District, Fourth Division.
    May 13, 1966.
    William A. Cain, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joseph Garlovsky and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Roscoe Minor, defendant, was indicted by the Cook County Grand Jury on the charge that he had committed the offense of sale of a narcotic drug. The defendant waived a jury and was tried before a judge of the Circuit Court, found guilty and sentenced to the Illinois State Penitentiary for a term of years not less than ten nor more than thirteen.

The defendant was arrested on January 5, 1965, and charged with the unlawful sale of narcotics to one Jeffery Turner, alias Robert Jackson, hereafter referred to as Jackson.

Jackson was a police informer. He testified that he was not at the present time a user of narcotics but that he had been an addict about a year and a half to two years before the trial; that prior to January 5, he had been arrested by Officer Williams for the sale of heroin, which charge was still pending in the Criminal Court of Cook County at the date of the trial of the defendant in the instant case.

On January 5, 1965, after 7:00 p. m., Jackson met police officers Williams and Nance, who searched him, found he was free of narcotics and then gave him $10 in currency after recording the serial numbers. The police drove Jackson to 36th Street and Indiana Avenue, in Chicago, where Jackson got out of the car and walked east on 36th Street, turned left on Indiana Avenue, and walked toward 35th Street. The police car was parked in the alley, and within five or ten minutes after Jackson left he returned to the car and gave Officer Williams two tinfoil packages of white powder which Officer Williams examined, and which a later field test proved to contain heroin. [At the trial the usual stipulation was entered into that the Chicago Police Department Crime Laboratory chemist would testify that the packages contained heroin.]

Jackson testified at the trial that when he left the police he went to Grand Prix tavern at 35th and Indiana, where he “saw Blood, the defendant, coming out of the tavern”;.that the defendant said he could supply Jackson with heroin and Jackson gave him $9; that the defendant went into another tavern, the Subway Lounge, and went to the washroom; that the defendant gave Jackson two tinfoil packages of heroin; and that Jackson then went back to the police car, told the officers about his purchase, and gave them the packages.

Officer Williams testified that after Jackson left the police car he was out of sight of the officers and that Officer Williams did not see Jackson again until he returned; that he did not at that time see the defendant in the vicinity of 85th Street and Indiana Avenue, nor did he see him until 11 o’clock that evening when he was arrested in the Grand Prix tavern. At the time of the arrest the defendant denied that he had sold narcotics, and the police did not find any marked money on his person when they searched him. The defendant requested that they go with him to the room in which he said he slept, and when they went there they found no money and no narcotics.

When Jackson had returned to the police car he had given the officers a complete description. of the man from whom he claimed to have purchased the narcotics. Officer Williams was asked whether or not he based his arrest of the defendant solely on what Jackson had told him, and he replied: “Well, I based the arrest on the complete description given to me by the informer, my prior knowledge of the defendant, and my prior knowledge of the defendant’s illicit activity in narcotics.” He further testified that he did not know whether Jackson purchased heroin from the defendant, other than what he was told by Jackson; that after Jackson told them of the purchase and described his seller, the officers started to look for the defendant at 35th and Indiana, going from tavern to tavern and from restaurant to restaurant.

Officer Nance, who accompanied Officer Williams, gave the same testimony with reference to the search of Jackson and the prerecorded money given to him. He stated that after Jackson left the officers he was out of their view; that he returned in about 20 minutes, when he gave two tinfoil packages to Officer Williams; that this was about 7:00 p. m.; that at that time he and Officer Williams went to 35th and Indiana, but did not find the defendant there; that they arrested the defendant at about 9:40 or 9:50 p. m., on the same evening, at 3510 South Indiana Avenue. In response to a question by the court Officer Nance gave the following statement: “I didn’t give the informer anything for his services nor did anyone else to my knowledge. He does have hopes of receiving some consideration for his services.” On redirect examination, he stated, “It’s normal after' trial is over to go to State’s Attorney’s office and request consideration for testifying.”

In this court the defendant argues that the State failed to prove him guilty of the sale of narcotic drugs, and relies on People v. Bazemore, 25 Ill2d 74, 182 NE2d 649, in which case the principal witness for the prosecution was an informer who had been assisting police in narcotics matters for about nine months prior to the defendant’s arrest. The informer testified that he had seen the defendant selling narcotics on the street in the vicinity of a pool hall. He went with certain police officers to a street corner near the pool hall. The officers searched him and gave him $10 in inventoried money. The officers stayed in the police car about a block away from the pool hall. The informer walked to the vicinity of the pool hall and later returned with two tinfoil packets which contained narcotic drugs. He told the police he purchased the packets from the defendant with the money furnished by the police, and gave the police a description of the defendant. The police made a search of the area but could not find the defendant. About two months later the informer told the police he had again seen the defendant in the same vicinity, and at that time the defendant was arrested. No narcotics were found on his person, nor was any of the inventoried money ever recovered. At the trial of the case the informer admitted that he had been a narcotics addict and that he had purchased narcotics for his own use from the defendant some months before. As to how complete an addict the informer was is not clear from the evidence. One of the police officers said that he knew the informer was an addict but had never arrested him. Both officers admitted that the informer was not kept under surveillance and that they did not know in fact whether or not the narcotics had been purchased from the defendant. In that case the Supreme Court laid down the rule that where the State’s case rests solely upon the credibility of an admitted narcotics addict, the trial court and the reviewing court must carefully and closely scrutinize the testimony of the witness. It also pointed out that the witness was not under surveillance by the police as he went about making his purchases of drugs.

In the case before us there is no evidence that at the time of the sale of the drugs Jackson was an addict, but he had been previously.

Furthermore, there is evidence that he was under arrest for the sale of narcotics and that he would expect consideration in that case from the State’s Attorney’s office because of his aid to the police. Under such circumstances the testimony of an informer must be carefully and closely scrutinized. In the Bazemore case the court said:

“The credibility of witnesses and the weight to be afforded their testimony are essentially matters to be determined by the court or jury, as the case may be. And while we are loathe to disturb their findings in such matters, we cannot say after a searching analysis of the record that the entirely uncorroborated testimony of Lenier is so clear, satisfactory and convincing as to remove all reasonable doubt of defendant’s guilt. This is not a case where the informer’s accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused, but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one.”

The court further said:

“Though unemployed during the period he worked with the police, Lenier still had his own habit to satisfy and, in looking to his motives for acting as an informer, we cannot help but take particular cognizance that he was being ‘loaned’ money by one of the officers. Considering the evil of narcotics traffic and the stealth with which it is conducted, we do not condemn this action of the officer aimed at apprehending the most despicable of criminals, the narcotics suppliers. But, at the same time, we must consider that the informer would doubtless go to extremes to curry police favor and ‘loans,’ and the possibility that, being completely without surveillance, he would act under the compulsion of producing a victim in order to perpetuate the status he had enjoyed for nine months.”

The court found that such reasonable doubt was left in its mind with reference to the guilt of the accused defendant that it must reverse the judgment of the Criminal Court.

In the instant' case the State argues that the rule laid down in Bazemore was changed in People v. Realmo, 28 Ill2d 510, 192 NE2d 918; with that conclusion we cannot agree. In the Realmo case the court said:

“Defendant’s third contention that the proof does not establish beyond a reasonable doubt all of the elements of the crime is in reality an attack upon the probative value and sufficiency of the informer’s testimony. People v. Bazemore, 25 Ill2d 74, cited in support thereof, does hold that under the circumstances there present, an admitted addict’s wholly uncorroborated testimony in which discrepancies and variations appeared was insufficient to convict. It is significant that in Bazemore there was no surveillance by police of any portion of the informer’s activities in making the purchase, and the arrest of the defendant did not occur until some two months later.” [Emphasis supplied.]

In the Realmo case the police officers observed substantially all of the defendant’s activities in making the controlled purchase except the actual transfer of the narcotics and the marked money. As to that, Officer Lopez testified that he saw defendant hand something to the informer near the entrance to defendant’s residence, which was the location where the informer testified he was handed the drug. The rule laid down in the Realmo case does not affect the holding in Bazemore. People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282, is in accord with Bazemore. In that case there was a close watch kept by a police officer, although he did not actually see the transfer.

In the instant case there is no evidence that the defendant at the time of the alleged sale was anywhere in the neighborhood. Following the rule laid down in the Bazemore case, the evidence introduced by the State in the instant case did not contain sufficient corroborative testimony to convict Roscoe Minor beyond a reasonable doubt. The judgment of the Circuit Court of Cook County is reversed.

Reversed.

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


text:
    Chesterfield Federal Savings and Loan Association of Chicago, a Corporation, Plaintiff-Appellee, Albert Fishbein, Counter-Claimant-Appellee, v. Alvin K. Schiller and Roslyn K. Schiller, His Wife, et al., Defendant-Appellant.
    Gen. No. 51,187.
    First District, Fourth Division.
    May 13, 1966.
    Alvin K. Schiller, pro se, of Chicago, appellant.
    Abel J. De Haan, of Chicago, for Chesterfield Federal Savings and Loan Association of Chicago, appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is a motion to dismiss an appeal taken by one of the defendants, Alvin K. Schiller, from the entry of a decree of foreclosure. The appeal was taken to the Supreme Court which transferred the cause to the Appellate Court.

In the aforesaid decree, entered on April 28, 1964, the trial court stated that it “expressly finds that there is no just reason for delaying the enforcement of this Decree or an appeal therefrom.” On April 7, 1965, the court entered an order that certain funds be applied in payment of a deficiency decree and on April 23, 1965, the court entered an order denying the motion of Alvin K. Schiller to vacate an order entered on February 26, 1965, requiring the deposit of a sum of money with the clerk of the court. On May 13, 1965, more than a year after the entry of the decree, Alvin K. Schiller filed a notice of appeal and listed therein the decree of April 28, 1964, and also the two orders of the court which were entered in April 1965. The record on appeal was filed in the Supreme Court on July 14, 1965. On September 10, 1965, a supplemental notice of appeal was filed limiting the appeal to the decree of April 28, 1964. On January 14, 1966, this case was transferred to the Appellate Court. Plaintiff’s motion to dismiss the appeal, which had been filed but not acted upon in the Supreme Court, was refiled in this court on April 6,1966.

Although plaintiff asserts numerous suggestions in support of its motion to dismiss this appeal, the main contention is that the notice of appeal was not filed within sixty days from the entry of the decree in violation of section 76(1) of the Civil Practice Act (Ill Rev Stats 1963, c 110, §76(1)) in force at that time. In his objections to plaintiff’s motion the defendant states that:

The appellant did give verbal notice to the adverse parties in the presence of the presiding judge of the lower court and was told by said presiding judge that he, the appellant, had a perfect right to appeal.

Defendant asserts that by virtue of this verbal notice, his notice of appeal was filed in full compliance with section 76(1) of the Civil Practice Act and argues that under that section an appeal may be taken from the Circuit Court within a period of fourteen months from the entry of a decree upon notice filed and notice given to adverse parties within one year from such entry.

A notice of appeal must be in writing. Greene v. Toman, 319 Ill App 252, 48 NE2d 760. Defendant, having filed his written notice of appeal more than one year after the entry of the decree, did not comply with the requirements of the then section 76(1), which provided that:

No appeal may be taken from a trial court to the Supreme Court or Appellate Court after the expiration of 60 days from the entry of the . . . decree ....

The aforesaid section did allow the filing of a notice of appeal after the expiration of the sixty-day period and within the time limit as asserted by the defendant upon leave granted by the reviewing court based upon a showing by affidavit that, inter alia, “the failure to file [a] notice of appeal within the 60-day period . . . was not due to appellant’s culpable negligence.” At no point in his affidavit does defendant allege that he was not guilty of culpable negligence. Where a notice of appeal is not filed within the time required by section 76(1) the appeal shall be dismissed. McHale v. Marrs, 48 Ill App2d 171, 197 NE2d 736.

Therefore the defendant’s appeal is dismissed.

Appeal dismissed.

ENGLISH and McCORMICK, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Rogers, Defendant-Appellant.
    Gen. No. 50,022.
    First District, Fourth Division.
    May 13, 1966.

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

delivered the opinion of the court.

CHARGE

Robbery.

JUDGMENT

After a jury verdict finding defendant guilty, the court imposed a sentence of five to fifteen years.

POINTS RAISED ON APPEAL

(1) The charge against defendant should have been dismissed because he was not brought to trial within 120 days of his arrest in accordance with Section 103-5 of the Code of Criminal Procedure.

(2) Defendant was denied the effective assistance of counsel.

RECORD AS TO CONTINUANCES

There is no dispute concerning the facts which are the basis for defendant’s position, but it is argued that the trial court erred in its interpretation of those facts.

Defendant was taken into custody on January 22,1964, and had not been brought to trial when he made a motion for discharge on June 11, 1964. During that period there had been a number of continuances but only one was considered by the court as having been a delay “occasioned by the defendant.” That was the continuance from April 9,1964, to May 4 of the same year. Since April 9 was less than 120 days after defendant’s arrest (January 22), and since May 4 was less than 120 days prior to defendant’s trial (July 1), the case in this court must stand or fall on interpretation of the April 9 continuance. Because of the importance of the proceedings on that date, we shall set forth a large part of them verbatim.

The two defendants, Rogers and Mason, were before the court and were represented by Assistant Public Defender Hartman. Katz was the Assistant State’s Attorney. Both sides answered ready for trial. Rogers indicated that he wanted a jury trial, contrary to previous advice to the court, and this presented a minor administrative problem to the court since it was a Thursday and the term of the current jury was scheduled to expire the next day. The following ensued:

THE COURT: The last time we were up — You are entitled to a jury trial. Don’t worry. You will get a jury trial. Last time I understood this was going to be a bench trial without a jury, is that right ?
THE DEFENDANT ROGERS: That’s right.
THE COURT: That is what we talked about ?
THE DEFENDANT ROGERS: That’s right.
THE COURT: At this time you want a jury trial. Your are entitled to it, but we can’t try it today. It is Thursday and we would not be able to finish this week, so I have to continue it to next week. I just wanted you to know why it is going to be continued. It is not because your attorney isn’t ready. Your attorney is ready, but we can’t be ready with a jury trial. (Emphasis supplied.)

At this point counsel for defendants interjected an entirely different subject for the court’s consideration, namely, a pretrial or presentence investigation by the Probation Officer on behalf of the codefendant Mason.

MR. HARTMAN: I would like to make a motion on behalf of Mr. Mason for a pre trial investigation at this time.
THE COURT: Mr. Mason, we will order a pre trial investigation. And it will be a continuance by agreement.
MR. HARTMAN: All right.
THE COURT: The earliest possible date will be Tuesday, April 28th. All right for everybody?
MR. HARTMAN: Your Honor, I know on the 28th there are a few other cases are going to go, unless you want to hold it on call.
THE COURT: I will then hold it on call. What about the 29th; will that be better?
MR. HARTMAN: I know the 28th will be bad.
THE COURT: How about Monday, May 4th?
MR. HARTMAN: All right. May 4th okay with you?
THE DEFENDANT ROGERS: Yes.
THE DEFENDANT MASON: Yes.
THE COURT: All right, Monday, May 4th, and pre trial investigation on James Mason.
MR. KATZ: Also for the record, 1 would like the record to reflect I talked to Mr. Hartman yesterday. As a result of that it will be a by agreement continuance.
MR. HARTMAN: There is a motion for pre trial.
THE COURT: It is by agreement for several reasons: pre trial investigation, and certain evidence not available until late yesterday, and the defendants had earlier indicated a bench trial. (Emphasis supplied.)

OPINION

(1) The Supreme Court’s interpretation of the so-called “four-months statute” clearly indicates that where a defendant has requested or agreed to a continuance, the running of the statutory period will be broken. People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed 34 Ill2d 179, 214 NE2d 765; People v. Rankins, 18 Ill2d 260, 163 NE2d 814; People v. Tamborski, 415 Ill 466, 114 NE2d 649.

It is true, as argued by defendant, that on April 9 he answered ready for trial and that it was the court, not he, who initially suggested that the case be continued. Because of this, defendant contends that the instant case falls within the rule of People v. Wyatt, 24 Ill2d 151, 180 NE2d 478. We do not share the view that Wyatt stands for so broad a principle. There the continuance ultimately granted was for the same purpose as originally proposed by the court (the obtaining of counsel for the defendants). When a longer continuance (as suggested by defendants) rather than a shorter one (as suggested by the court) was allowed, the character and the initiating source of the delay remained unchanged. Hence, it could not properly have been charged to defendants.

Here, however, the situation is quite different. As can be seen from the portion of the record first above quoted, the court suggested a postponement of only a few days and only for reasons of administrative necessity or convenience. By contrast, the motion of the codefendant was for quite a long period of time and for quite a different reason. The alert trial judge, mindful of the rights of both State and defendant, noticed the change in character of the proposed continuance and changed his own words accordingly, from “I have to continue” the case, to “it will be a continuance by agreement.” And to this revised proposal both defendants, by counsel and in person, expressly agreed. And only then did the court actually order the continuance.

A case in point is People v. Meisenhelter, 381 Ill 378, 45 NE2d 678. There it was held that a defendant waives his constitutional right to speedy trial when, in open court with counsel, he stands by and makes no objection to a codefendant’s motion for a continuance. The guarantee of the constitution is only for the purpose of protecting a defendant from arbitrary and oppressive delays. A continuance allowed at the request of a co-defendant, to which continuance the appealing defendant makes no objection (as in Meisenhelter) or, a fortiori, affirmatively states his agreement (as in the instant case), operates to break the running of the four-months statute.

(2) In his reply brief, defendant contends (for the first time) that the action of his counsel in seeking a continuance, without severance, for the benefit of the codefendant established a conflict of interest which denied to this defendant his constitutional right to the effective assistance of counsel. The record before us is insufficient to support this argument. On the contrary, the record shows that when this defendant agreed to the continuance he placed himself in harmony with his codefendant as to the desired trial date. Whether or not there may exist outside this record another basis for a conflict-of-interest contention is a matter about which we have no knowledge, and, in that circumstance, we will not supply it by speculation. People v. Chapman, 66 Ill App2d 124, 127, 214 NE2d 313. If it does exist, the appropriate place to raise the point would not be on this appeal, but in a petition under the Post-Conviction Hearing Act. Ill Rev Stats (1965), c 38, § 122; People v. Morris, 3 Ill2d 437, 445, 446, 121 NE2d 810.

DECISION

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1963), c 38, § 103-5 reads, in pertinent part:
      (a) Every person in custody in this State for an alleged offense shall he tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, ....

       Ill Rev Stats (1963), c 38, § 103-5. See footnote 1, supra.

       Supreme Court Rule 39, which governs briefs in this court (Appellate Court Rule 5(2) (k)) provides in part:
      No alleged error or point not contained in the brief shall be raised afterwards, either by reply brief or in oral or printed argument or on petition for rehearing.
      Reply Brief, if any, shall be confined strictly to the points presented by the brief of the appellee.
      Ill Rev Stats (1965), c 110, § 101.39.
      In Posner v. Firemen’s Ins. Co., 49 Ill App2d 209, 212, 199 NE2d 44, we said:
      This point was not raised by the plaintiffs until they filed their reply brief in this court, and they cannot now rely upon it.
      See also ILP, Appeal and Error, § 561.


author: JUSTICE STOUDER.

text:
    Evelyn M. King, an Adult, and Susan Marie King, John Edward King, Paul Joseph King and David Alan King, Minors, Plaintiffs-Appellants, v. Harold Donahue, d/b/a Town House, and Raymond Dahlberg, d/b/a Triangle Inn, Defendants-Appellees.
    Gen. No. 65-82.
    Third District.
    May 16, 1966.
    Dan H. McNeal, of Moline, for appellants;
    Frank Schubert, of Rock Island, and John P. Lynaugh, of Springfield, for appellees.
   Opinion by

JUSTICE STOUDER.

Not to be published in full.


text:
    Frank Rubitsky and Lorraine E. Rubitsky, Plaintiffs-Appellants, v. Russo’s Derby, Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 65-113.
    Second District.
    May 13, 1966.

      Cannariato, Nicolosi & Pigatti, of Rockford, for appellants.
    Miller, Thomas, Hickey & Collins, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a judgment on the pleadings entered in the Circuit Court of Winnebago County in favor of the defendant. The complaint alleged that the plaintiff, Frank Rubitsky, sustained personal injuries as a result of an assault by a Jimmie Darrel Brannon and Sandra K. Olson, and sought damages in the amount of $100,000. His wife, Lorraine E. Rubitsky, in a separate count, asked to recover sums expended by her to treat her husband for the injuries. The complaint states that Rubitsky was a cabdriver in the city of Beloit, Wisconsin, and that the defendant, Russo’s Derby, Inc., was an Illinois corporation, engaged in the retail sale of alcoholic liquors in South Beloit, Illinois. On March 21, 1964, Rubitsky was summoned to the defendant’s place of business in South Beloit to pick up Brannon and Olson.

Rubitsky, at the direction of his passengers, drove to a section of the northern part of the city of Beloit, where Brannon and Olson proceeded to violently assault him and inflict the injuries of which he complains. The complaint further alleges that Brannon and Olson were “in a hopelessly and helplessly intoxicated condition as a consequence of having consumed alcoholic beverages” at defendant’s business establishment. It also states that the sale or gift of the intoxicants by defendant’s agents was with the knowledge that Brannon and Olson “were not able-bodied persons” because of their prior intoxication. The trial court sustained the amended motion of the defendant to dismiss on the grounds that the complaint failed to state a cause of action.

The original complaint charged that the defendant had violated section 131 of chapter 43, Illinois Revised Statutes, 1963, and, in addition, that the sale or gift of the alcohol to Brannon and Olson was “made either with an intention or a reckless disregard of the consequences.”

These allegations could be considered to state a tort action based on either the duty imposed by the section of statute cited (not to sell or give liquor to an intoxicated person) or the general duty imposed on all persons to refrain from any act which could reasonably be anticipated to cause harm to others.

The complaint was not brought under the so-called Dram Shop Act (Ill Rev Stats 1963, c 43, § 135) which imposes civil liability for damages in certain cases designated in that statute. The law, often criticized in Illinois, is that the Dram Shop Act has no extraterritorial effect and hence would not apply to a situation, such as this one, where the injuries were sustained beyond the jurisdiction of the state. Butler v. Wittland, 18 Ill App 2d 578, 153 NE2d 106; Eldridge v. Don Beachcomber, Inc., 342 Ill App 151, 154, 95 NE2d 512. It is also recognized by the plaintiff that had the injuries been sustained in Illinois his only remedy would have been under the Dram Shop Act. Cunningham v. Brown, 22 Ill2d 23, 174 NE2d 153.

Plaintiff places great reliance on the case of Colligan v. Cousar, 38 Ill App2d 392, 187 NE2d 292, which does contain facts comparable to this cause. In that case, the plaintiff, a 13-year-old boy, was struck and injured by an automobile driven in Indiana, approximately 250 feet from the Illinois border. The driver of the automobile had been drinking in various taverns located on the south side of Chicago, in Illinois, and was, it was alleged, hopelessly intoxicated as a result. The court correctly dismissed the first count brought under the Dram Shop Act on the basis of the decision in Eldridge, supra. A second count, however, alleged in language identical to that used in the complaint before ús, that the defendant-taverns were also guilty of general negligence. The court proceeded to examine the law of Indiana on the principle of lex loci delicti, i. e., where an action is brought in Illinois for a tort committed in another state, the substantial law of the latter will be applied by the Illinois court. Butler v. Wittland, supra; Opp v. Pryor, 294 Ill 538, 128 NE 580; Mithen v. Jeffery, 259 Ill 372, 102 NE, 778. It then determined that Indiana “had no rule of common law with reference to this particular subject,” and that, therefore, the law of Indiana was presumably the same as that of the forum, Illinois. The court also failed to find any authority in Illinois law for common-law liability for the sale or gift of intoxicating liquors but proceeded to establish it after a lengthy discussion of the genius and flexibility of the common law. It then applied the new law of the forum to the facts before it and reversed that part of the decision of the trial court that had dismissed the count for general negligence in the complaint.

However, an important distinction exists between the Colligan case and our own. There, as we have seen, the court found no law in Indiana applicable to the situation and was able to use the law of the forum. Wisconsin has, however, expressed itself in this regard, to the effect that there is no common-law liability for the sale or gift of liquor to an able bodied man. Demge v. Feierstein, 222 Wis 199, 268 NW 210; Seibel v. Leach, 233 Wis 66, 288 NW 774. Plaintiff here argues that, due to their prior intoxication, neither Brannon nor Olson was “able-bodied” and that the Wisconsin cases are not in point. In the more recent case of Farmers Mut. Automobile Ins. Co. v. Gast, 17 Wis2d 344, 117 NW2d 347 (1962) the Supreme Court of Wisconsin considered a similar argument. It was there contended that the common-law rule did not apply to the dispensation of alcohol to a 17-year-old boy since he was not “an able-bodied man.” The court indicated some sympathy with this argument but concluded:

“Nevertheless, to hold that plaintiff’s complaint states a cause of action in common-law negligence independent of defendant’s violation of sec 66.054 (9) (b) stats would require that this court overrule Demge v. Feierstein, supra, and Seibel v. Leach, supra. We do not deem this a proper case in which to do so.”

As far as we can determine there have been no subsequent Wisconsin cases on this subject. We must conclude, therefore, that the state of Wisconsin has common law on the subject and that it is to the effect that there is no civil liability for the sale or gift of intoxicants. We must apply this law to our case under the doctrine of lex loci delicti, as enunciated earlier, and conclude that the trial court correctly dismissed the complaint.

For the reasons given, the decision of the trial court will be affirmed.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: JUSTICE MORAN.

text:
    Ronald Scribner, Defendant-Appellant, v. The People of the State of Illinois, Plaintiff-Appellee.
    Gen. No. 65-85.
    Fifth District.
    May 31, 1966.
    Harold Broverman, of Taylorville, for appellant;
    Rolland F. Tipsword, State’s Attorney, of Taylorville, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Howard L. Moore, Plaintiff-Appellee, v. Sears, Roebuck & Company, a Foreign Corporation, Defendant-Appellant.
    Gen. No. 50,585.
    First District, Third Division.
    May 12, 1966.

      Kahn, Adsit, Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (John F. McClure and Michael R Turoff, of counsel), for appellant.
    Kanelos and Sullivan, of Chicago (John R Sullivan, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action for personal injuries sustained while plaintiff was in one of the stores of defendant, the jury returned a verdict for plaintiff in the sum of $1,250, and defendant appeals from the judgment entered thereon. The sole issue raised on appeal concerns plaintiff’s status at the time of his injury; that is, whether he was a volunteer and hence required to show that the accident was the result of wilful and wanton conduct on the part of defendant.

The incident which gave rise to plaintiff’s injury occurred in the shipping room in the rear of defendant’s La Grange store, where plaintiff as a customer had been directed to have his lawnmower repaired. Plaintiff and one Fisher, an employee of the store who was working on the mower at the time in question and who was only fifteen or twenty feet from plaintiff, were the only persons present in the shipping room when plaintiff saw a stock boy pulling a gondola loaded with two stoves onto a freight elevator located on the north side of the room. The boy was backing onto the elevator at an angle of approximately thirty degrees, and the handle of the gondola was extended toward his midriff. Plaintiff testified that the gondola rolled onto the elevator, pinning the boy against the corner so that the handle was “striking him in the stomach or groin,” and seeing this, plaintiff grabbed the gondola, stopping its thrust so that the boy would not get hurt or “binded up in there.” According to plaintiff, the stock boy then asked him to close the elevator doors, which closed vertically from the top and bottom. Complying with the boy’s request, plaintiff pulled down the top portion. As he did so, the lower half came up from the floor and caught his hand between the two sections.

The stock boy testified, however, that he at no time asked plaintiff for any assistance; that he was not pinned in and that he was going around to close the elevator doors when plaintiff volunteered to do it for him.

The only relief sought by defendant is a reversal of the judgment, with directions to the trial court to set aside the verdict and enter judgment for defendant. We must therefore determine whether there is any evidence which, taken with its most favorable intendments, establishes plaintiff’s case.

Plaintiff contends that an emergency existed which justified his intervention, that he could not be classified as a volunteer, and that defendant owed him the duty of exercising reasonable care. In addition to showing an emergency, however, plaintiff must also show that there was no fellow employee who was then presently capable of performing the function undertaken by plaintiff. W. B. Conkey Co. v. Bueherer, 84 Ill App 633; Saldukas v. McKerns, 340 Pa 113, 16 A2d 30. On this phase of the case the testimony is conclusive and it is not disputed that defendant’s employee Fisher was only fifteen or twenty feet away and could easily have been called to give any needed assistance.

The issue was presented to the jury in an instruction which reads as follows:

“The stock boy in question did not have the authority to employ outside assistance so as to charge the defendant, Sears, Roebuck & Co. with liability for negligent acts or omissions. Before the stock boy would have such authority at the time and place in question, such emergency must have existed as to call for additional assistance outside that, if any, obtainable from defendant’s servants and agents. And, if you believe from the evidence that another servant of the defendant was present to have accomplished the work in hand, then the said stock boy had no authority to employ other persons, and your verdict will be, not guilty.”

Plaintiff acknowledges that this instruction was tantamount to a directed verdict against him, unless the jury believed that he was the only individual then presently capable of coming to the aid of the stock boy and hence was warranted in his intervention.

In W. B. Conkey Co. v. Bueherer, 84 Ill App 633, the Appellate Court formulated the instruction to be given in cases involving emergency assistance, stating that the controlling issue in determining whether a third person’s intervention was warranted was whether the defendant’s servants were present in sufficient number to accomplish the work without outside help. Although that case was remanded for a new trial, the Appellate Court strongly intimated that a verdict for the defendant should result by emphasizing that another driver, who was an employee of the defendant, was also present and available.

Although there is no other Illinois authority dealing with this question, the Pennsylvania Supreme Court has held that one attempting to recover on the theory of implied agency arising from an emergency must introduce evidence showing that the volunteer’s assistance was required before the issue may be submitted to the jury. In Saldukas v. McKerns, 340 Pa 113, 16 A2d 30 (1940), the plaintiff was injured when a third person, not employed by the defendant, attempted to assist the defendant’s employees in starting a stalled truck. A can of gasoline caught fire, and the plaintiff was burned when the third person threw the flaming can across the street. The plaintiff sued the defendant on the theory that the latter was liable for the acts of the third party because he became a servant of the defendant when he assisted with the truck. The evidence showed that three of the defendant’s servants, other than the driver, were within 150 feet of the truck when it stalled. The court held (p 31):

“Thus, an emergency may exist, but if there are fellow servants available who can assist, there is no necessity to ask a stranger to help. So here ... it cannot be said that Marshall had to look to James for help, without there being evidence to prove that his assistance was necessary. Since no evidence to this end was introduced, there was no question of necessity for the jury to pass upon. . . .” (Emphasis added.)

The evidence in the instant case reveals, as we have heretofore stated, that an employee of defendant was only fifteen or twenty feet away from plaintiff at the time in question and could readily have been called to perform the task which plaintiff volunteered to do. Under these circumstances there appears to us to be no basis for the jury’s verdict.

The judgment is reversed.

Judgment reversed.

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