text:
    John R. Miller, d/b/a Miller Electric Company, Plaintiff-Appellee, v. Guy D. Reed, Defendant-Appellant—(Tommy Payne, Jr., Defendant-Appellee.)
    (No. 72-96;
    Fifth District —
    September 13, 1973.

      Robert S. Hill, of Benton, for appellant.
    Richard O. Hart, of Hart and Hart, of Benton, for appellee John R. Miller.
    Elmer Jenkins and Jeff Trout, both of Benton, for appellee Tommy Payne.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant Reed appeals from a decree awarding plaintiff Miller a mechanics’ lien against co-defendants Reed and Payne and from a decree awarding counterplaintiff Payne a judgment against counterdefendant Reed.

Plaintiff-contractor Miller (hereafter called “contractor”) entered into an oral contract with defendant Payne (hereafter called “tenant”), although not actually a tenant but rather a person in possession of premises under an arrangement with the owner to do certain electrical work on defendant-owner (hereafter called “owner”) Reed’s premises. Tenant and owner agreed to lease certain property for the operation of a restaurant and tavern after certain improvements were made. No written lease was entered into, and no period of time for the lease was agreed upon, but rent was agreed to be $175 per month. Owner provided the work which he had agreed to do, and gave tenant keys to the premises so that tenant could do the work he had agreed to do. Tenant orally contracted with contractor to do the electrical work. Contractor performed some of the work with owner’s knowledge and approval. Contractor performed general work until he felt he could go no further without more specifications as to the particular equipment that would be instaHed. After several more months had passed, owner leased the premises to another person for $250 per month. Contractor brought an action against both tenant and owner. The circuit court filed a memorandum opinion finding that the contract was not permitted to be completed “due to the delay and düatory action of the co-defendants and each of them” and that “defendant Payne’s delay was compounded by action of defendant Reed in obtaining another lease without notice, preventing the plaintiff MiHer from completing the contract.” The court awarded a mechanics’ lien in favor of the contractor in the amount of $1738.96, representing the value of the approximately 50% of the agreed work which had been completed, and awarded a judgment to counter-plaintiff-tenant in the amount of $869.48 based on the enhanced value of the owner’s premises in the event the tenant subsequently be required to pay for the total cost of the improvements.

Owner first contends that the tenant did not have such an interest in the property as would give rise to a mechanics’ hen. The applicable statute is section 1 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1971, ch. 82, par. 1):

“Any person who shaH by any contract or contracts, express or impfied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, * * * shaH be known under the Act as a contractor, and shall have a Hen upon the whole of such lot or tract of land * * * for the amount due to him for such material, fixtures, apparatus, machinery, services or labor, and interest from the date the same is due. * * *” (Emphasis added.)

The object and purpose of the Mechanics’ Lien Act is to protect those who in good faith furnish material or labor for the construction of buüdings. While the statute must be strictly construed with respect to aH matters on which the lien depends, the courts have held that after the Hen claimant has complied strictly with the statutory requirements to establish a Hen, then the court should give the statute a liberal construction so that justice wiH be done between the parties. The suit is one in equity and equity principles apply. Gunther v. O’Brien (2d Dist. 1937), 293 Ill.App. 28, 12 N.E.2d 23.

Owner claims that tenant Payne lacked a sufficient interest in the property to contract for a mechanics’ hen because he was in possession of the premises in the capacity of a tenant at sufferance, citing Proctor v. Tows (1885), 115 Ill. 138. In Proctor the occupant of the defendant’s land built a house upon the defendant’s land and the contractor brought suit against the occupant of the premises contending that he was entitled to a mechanics’ hen upon the property. Our Supreme Court held that since the tenant was a mere tenant at sufferance, no mechanics’ hen attached. The language in the Mechanics’ Lien Act in force in 1885 (Rev. Stat. 1874, p. 665, sec. 1) required that the contractor have a contract with the owner of the land before a mechanics’ hen could attach. However, the Act now requires only that the contract be with the owner or with one whom such owner has authorized or “knowingly permitted” to contract for the improvement of or to improve the land. Therefore, Proctor is not controlling in this case. The owner is assumed to have “knowingly permitted” the improvements where he knew and failed to protest or accepted the benefits of the improvements. (Janisch v. Reynolds, 254 Ill.App. 569; Young v. Bergner, 243 Ill.App. 473; Mutual Construction Co. v. Baker, 237 Ill.App. 596.) Here the record clearly shows that the owner knowingly permitted the tenant to contract for the improvements. Under our statute, this is sufficient to give rise to a mechanics’ lien upon the owner’s property.

Owner next contends that the contractor’s failure to render substantial compliance with the contract by virtue of his non-completion of the contracted-for work means that no mechanics’ Hen can attach. NormaUy, it is a prerequisite to a mechanics’ Hen that the contractor complete performance of the contract. (See Love Mechancis’ Liens in Illinois, par. 58, at 129 (1931).) In Gottschalk Construction Co. v. Carlson, 253 Ill.App. 520, the court stated at 529:

“The contract is the basis of the Hen and to maintain a mechanics’ Hen suit, petitioner must show either performance or excuse for non-performance which must result from the owner’s breach of contract.”

In the present case the plaintiff-contractor completed only approximately one half of the work. However, the trial court found that the contract was not permitted to be completed “* * * due to the delay and dilatory action of the co-defendants and each of them.” This is an excusé for non-performance within the meaning of the quote from Gottschalk.

Furthermore, section 4 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1971, ch. 82, par. 4) provides that a contractor who is prevented from performing his contract by default of the owner shaU be entitled to enforce bis Hen for the value of what has been done. Although the trial court found both the owner and tenant at fault here, we observe that the hen would be equally valid if the tenant was the only party who prevented completion of the contract. In Cooper v. Palais Royal Theatre Co. (1926), 242 Ill.App. 184, the court held that the Act must be read as a whole and that the meaning of the word “owner” as used in section 4 was the same as the meaning of “owner” in section 1, and thus held that where a contractor had furnished labor and materials for an improvement upon property under a contract not with the actual owner but rather with one whom the owner had “knowingly permitted” to make the improvement, the contractor was entitled to a lien for the reasonable worth of such labor and materials although he did not complete the contract because of the failure of the party whom the owner had “knowingly permitted” to make the improvement to perform his part of the contract. Thus the trial court properly entered a lien for the amount of work actually performed.

Owner next contends that the items instaUed by the contractor were “trade fixtures” which are not lienable. Trade fixtures are not lien-able improvements even though they may be attached to the building at least in part. Our supreme court in Fehr Construction Co. v. Postl System of Health Building (1919), 288 Ill. 634, 124 N.E. 315, listed three prerequisites of a fixture which would make it a lienable fixture as opposed to a trade fixture. The first is that the fixtures be firmly attached to the realty, the second is that the fixtures be adapted to and necessary for the purpose to which the portion of the premises leased is devoted and for which it was leased, and the third is that the parties to the lease intended that these fixtures and alterations should become a part of the realty. Here electrical wiring and conduits were installed. Babiak v. Strum, 20 Ill.App.2d 191, 155 N.E.2d.332 (abstract opinion), held that where an electrical wiring system for a building was placed in conduits and part of the system was installed within the walls with conduits attached, when possible, to walls by metal strips, and screws and fluourescent lighting fixtures were attached to the ceiling and outlets were placed both in the walls and in the floor, such electrical system was not a “trade fixture”, but was a permanent improvement to the real estate, and such items and work done in the installation thereof were lienable. Following Babiak, we hold that the items installed by the contractor in this case were lienable improvements rather than trade fixtures.

Owner’s final contention is that the trial court improperly decreed an “equitable lien” against his property in favor of tenant. However, the pertinent part of the court’s order stated:

“IT IS FURTHER ORDERED that in the event that Defendant, Tommy Payne, Jr., becomes liable or pays the entire judgment, either by virtue of deficiency or sale of the property under this Decree or by payment of said amount in the first instance of said judgment, he shall be entitled to recover from Defendant, Guy D. Reed, the sum of $869.48.”

It is readily apparent that this order did not create or impose an equitable lien.

Finding no error, we affirm the decree of the Circuit Court of Franklin County.

Decree affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Samuel B. Turner, Defendant-Appellant.
    (No. 71-260;
    Fifth District —
    September 28, 1973.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon, (Richard E. Cunningham, Assistant Appellate Defender, of counsel,) for appellant.
    John H. Ward, State’s Attorney, of Taylorville, (James W. Jerz and Thomas F. Sullivan, both of Model District State’s Attorneys Office, of Elgin, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the Circuit Court of Christian County finding him guilty of the crime of burglary.

Defendant was indicted for the crimes of burglary and theft. The burglary count of the indictment alleged that he knowingly entered the residence of Eugene and Marlena Gartshore with intent to commit a theft. The theft count alleged that on the same date and at the same residence he knowingly exerted unauthorized control over two .22 caliber rifles owned by Eugene Gartshore. The jury found him guilty on the burglary count but not guilty on the theft count.

Defendant contends that the evidence which was wholly circumstantial was insufficient to prove him guilty beyond a reasonable doubt.

Marlena Gartshore testified that she had been married to Eugene Gartshore for a little less than five years and that they had a daughter two years old. She and the defendant Sam Turner had been engaged for several months prior to her marriage. Her husband knew the defendant only as an acquaintance and defendant never visited in her home. She never went with the defendant or had anything to do with him since the engagement. She further testified that at approximately 10:30 P.M. on the night of January 8, 1971, while she was driving her car down Main Street in the city of Taylorville, accompanied by her two-year old daughter, the defendant pulled his car next to hers and signalled her car to stop. She stopped and the defendant got out of his car and said to her, “If you don’t go get me a gun, I’ll go out to your house and break in and take one.” She stated that he appeared to have been drinking. She then went directly to a friend’s home and called the “county police or the sheriffs office.” She explained to them what had happened and asked them to check the house because she was afraid he might carry out the threat. She called again in about 20 minutes, and again just before she went out to the mine to pick up her husband who was working the 4 to 12 shift. The last time she called, she asked the police to keep a watch on their home as she and her husband would be gone all night.

She picked her husband up at the mine and he then drove directly to his mother’s home in Glen Carbon, Illinois. They arrived there about 1:30 A.M. About 5:00 A.M., her husband received a call that their home had been burglarized. They left Glen Carbon about 8:00 A.M., went to her doctor’s office in St. Louis, Missouri and got back to Taylorville around noon. A pane of glass in their front door had been broken and two rifles were missing from her husband’s gun rack in the living room.

She said she did not tell her husband of defendant’s threat to burglarize their home because she did not want any trouble. She picked her husband up at the mine on this particular night because about once a month she had an appointment with a skin specialist in St. Louis, Missouri, and they leave directly from the mine, go to Glen Carbon, Illinois, stay for the night and then go to St. Louis the next morning. Glen Carbon is about ten miles from St. Louis.

A police officer testified that he was on duty at the police station in Taylorville at approximately 2:45 A.M., on January 9, when the defendant walked into the station carrying two unloaded rifles. The officer testified that he asked the defendant what he was doing with the guns and the defendant replied that he “didn’t know.” The officer asked the defendant to hand him the rifles and stated that it would be better for him (the officer) to keep the two rifles since the defendant could not produce a registration card for the weapons. The defendant agreed and the officer filled out a receipt for the guns. This officer and other witnesses testified that the defendant had been drinking, that he was “a little wobbly on his feet, a little slurred with his talking”, acted “very erratic”, etc. Eventually the defendant was arrested for disorderly conduct and taken to the county jail. Around 4:20 A.M., deputies of the county sheriff’s department discovered that the complaining witness’s home had been broken into. The complaining witness later identified the two rifles which the defendant had brought into the police station as being his rifles which were missing from his home after the break-in.

The defendant testified that around 2:00 in the morning he left a bar, got into his car, reached into the back seat for a coke in order to mix another drink, and felt the two rifles lying on the back seat. He testified that he did not know how the rifles got there. He drove to the police station and took the guns in to the police and turned them over to the officer. He testified that he did not steal the rifles or break into the complaining witness’s home or threaten to do so. He also testified that he received a call from Marlena during the afternoon of January 8, asking if he was coming out that night. He told her no because her husband had found out about them.

We first consider the contention that there was insufficient evidence to support the verdict. Here the evidence linking the defendant with the alleged crime is entirely circumstantial. In cases where the proof is entirely circumstantial, it must produce a reasonable and moral certainty that the accused and no cine else committed the crime. (People v. Grizzel, 382 Ill. 11; People v. Widmayer, 402 Ill. 143.) His guilt must be so thoroughly established as to exclude every other reasonable hypothesis. (People v. Sorrells, 293 Ill. 591; People v. Burgard, 377 Ill. 322; People v. Yaunce, 378 Ill. 307; People v. Crego, 395 Ill. 451.) It is essential to a conviction upon circumstantial evidence that the facts proved be not only consistent with the defendant’s guilt, but that they be inconsistent, upon any reasonable hypothesis, with his innocence. (People v. Holtz, 294 Ill. 143; People v. Wilson, 400 Ill. 461.)’ Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a serious and grave doubt of guilt, a conviction cannot stand. (People v. Widmayer, supra; People v. Taylor, 410 Ill. 469; People v. Magnafichi, 9 Ill.2d 169.) If there is any reasonable hypothesis arising from the evidence, consistent with the innocence of the defendant, it must be adopted. People v. Wilson, 400 Ill. 461.

It is undisputed that the home of the complaining witness was broken into and two rifles were missing. No direct evidence connects the defendant with the entrance into the house, and only two items of circumstantial evidence do so. The first item is the alleged threat made by the defendant to the wife of the complaining witness, that he was going to go to her house, break in, and take a gun, The second item is the fact that the defendant came to the police station early the following morning with two unloaded rifles and turned them over to the police. These rifles were subsequently identified by the complaining witness as being the two which were missing from his home. We will examine each of these items of evidence.

First is the matter of the alleged threat. Defendant denied making the threat and there was no corrobation of the threat at trial.

Second is the fact that defendant gave two rifles to an officer at the police station early the next morning. The officer testified that he asked defendant where he got the rifles and defendant replied that he “didn’t know.” Defendant testified that he left a tavern about 2:00 A.M., went to his car, reached into the back seat to get a coke to mix a drink, and felt the rifles. He denied that he had stolen them.

The State contends that the rule of recent unexplained possession of stolen property should be applied to sustain the conviction. Recent unexplained possession of stolen property is prima facie proof of guilt of burglary unless other evidence creates a reasonable doubt of guilt. The rule should be applied only when all its qualifications are met. In this case there was no showing that defendant had any knowledge that the rifles were stolen, which is one qualification of the rule. However, a more serious flaw in the State’s contention is the nature of defendant’s possession and explanation. The rule is based on logic and human experience. It is usuaUy applied where a person is discovered with stolen goods in his possession or the goods are discovered in the person’s home or locked in the trunk of his car, or facts of this nature. In such a situation where a person has exclusive control or possession of recently stolen goods, it is logical to require him to explain his possession and if he fails to explain it, to infer that he stole the goods. However, this defendant was not caught or discovered with the rifles. Instead, he voluntarily went to the police station to turn over the rifles which he stated he found. This is behavior consistent with the proper motives of a law-abiding citizen. The logic behind the rule simply does not extend to the facts of this case. Considerable research located only one case with facts similar to those of this case.

In Edge v. State (1928), 96 Fla. 796, 119 So. 332, a county courthouse was broken into and an old gun taken away. The next morning the defendant reported the matter to the janitor and said that during the night someone appeared on the courthouse grounds and when the defendant ordered the person to stop, the person dropped the gun. The defendant recovered it and carried it to his home. Not knowing what to do with it or where it came from, except that it had been in the possession of one who acted suspiciously when the defendant called to him, the defendant reported the matter to the janitor. Defendant was convicted of breaking and entering the county courthouse with intent to steal property of the value of less than $50 on this evidence. In reversing his conviction, the Supreme Court of Florida stated:

“The possession by a person of property which has been recently stolen from a building may be sufficient, if unexplained, to warrant a conviction of such person of the crime of entering the building with intent to steal. [Citation.]
There is, however, no presumption of law flowing from the unexplained possession of goods recently stolen that the possessor stole them. It is only when such possession is unexplained that guilt may be inferred as a matter of fact by considering such unexplained possession in connection with all the other circumstances of the case. [Citations.]
An important circumstance to be considered in this case is the prompt reporting of the incident which the accused said occurred on the courthouse grounds that night, and the voluntary production by him of the gun which he said he recovered, and which was alleged to have been stolen. Such circumstance is certainly not consistent with a desire to appropriate the property, claim it as his own, or conceal it. If larceny was the purpose of entering the house, the voluntary reporting of the supposed incident, in which the accused recovered the gun, and immediate production of it by him, negative the idea of any purpose to steal it. If there was no purpose to steal the gun, there was a failure to prove the intention with which the house was entered.
The accused was not found in possession of the property, in the sense that he had it secreted and someone else discovered it. He voluntarily reported it to the authorities.
His account of how he acquired it may not have been believed by the jury, and the account may have been neither reasonable or plausible, but the fact inconsistent with the idea of larceny remains, viz., that he voluntarily produced the property and disclaimed any title or interest in it.
The evidence is not sufficient to sustain the verdict, so the judgment is reversed.” 119 So. at 333.

We adopt the reasoning of Edge v. State and hold that the rule of recent, unexplained possession cannot be applied to a case where a defendant voluntarily goes to the police and turns over items which he states are not his and he does not know how they got into his car. In cases where the proof is entirely circumstantial, if there is any reasonable hypothesis arising from the evidence, consistent with the innocence of the defendant, it must be adopted. People v. Wilson, supra.

To sustain this conviction, we must believe beyond a reasonable doubt that the defendant was first considerate enough to warn his intended victim of his plans to burgle her house, and then foolish enough to voluntarily turn over the fruits and evidence of his crime to the police. This alleged behavior is difficult to believe.

Mrs. Gartshore testified that the defendant pulled her car over and threatened to burgle her residence. The State’s evidence is that the Gartshores and the defendant barely spoke to each other. On direct examination Mrs. Gartshore testified as follows:

“Q. About how long before January 8, if you know, had it been since you last saw or talked with Sam Turner?
A. I think it had been a couple of weeks before that. My husband and I were out for the evening and we saw him at the place we were at.
Q. Did you have a speaking acquaintance with Sam, both you and your husband?
A. No.
Q. I mean did you speak with each other or say hello when you would meet each other?
A. No, I did not speak to him.
# # #
Q. Does your husband know Samuel Benjamin Turner?
A. As an acquaintance, I think, only.
Q. Now, during the years of your marriage has Samuel Benjamin Turner visited in your home?
A. No.
Q. Have you had any social relationship between him and your husband and yourself?
A. No.
Q. Been places together?
A. No.”

Despite the testimony of the Gartshores concerning the lack of communication between the Gartshores and Turner, the State contends that the evidence shows that the defendant pulled Mrs. Gartshore over to the side of the street in order to conversationally inform her that he intended to burgle her residence. This is strange behavior for a burglar. Since both Gartshores testified that the defendant had never been in their marital home, there is nothing in the record to indicate how Turner could have learned of the existence of the gun or guns he was allegedly seeking, much less their location in the house.

There is no evidence in the record that defendant knew or had any reason to know that the Gartshores would be gone that night, yet he supposedly entered the house by breaking out the glass pane in the door —which would probably awaken anyone in the house. Yet we must believe beyond a reasonable doubt that this occurred, or we must reverse. Defendant’s explanation leaves some suspicions, yet it is an innocent hypothesis consistent with the proof. The circumstantial evidence here is not the quality of evidence upon which a person should be found guilty beyond a reasonable doubt. The conviction cannot stand unless we believe that defendant made the threat testified to by the wife of the complaining witness.

In People v. Buchholz, 363 Ill. 270, the testimony of the complaining witness that the defendant, after robbing her and finding she had no money, voluntarily accompanied her home and supplied her with his name arid telephone number was held to be sufficiently improbable as to leave reasonable doubt of the defendant’s guilt, and his conviction was reversed. In People v. O’Connor, 412 Ill. 304, the aUeged victim of a multiple rape testified that after the attacks the defendants accompanied her to various taverns where many people were present and aUowed her to use the telephone and go to the ladies room whfie they waited for her. The convictions were reversed because her testimony was so improbable and incredible as to raise serious doubt as to the guilt of the defendants. In People v. Coulson, 13 Ill.2d 290, it was held that the testimony of the complaining witness that five men who took his waUet at gunpoint voluntarily accompanied him to his home on the vague promise of more money, and permitted him to go inside alone while they obligingly waited outside, trusting that their victim would not caU the police, “* * * taxes the gullibility of the credulous,” and was too improbable and unconvincing to sustain a conviction.

We find the evidence in this case to be of a similar unconvincing character. It is incredible to believe that a burglar would warn his intended victim and then voluntarily turn over the fruits of his crime to the police. We have already held that the act of turning the rifles in to the police is susceptible of an innocent interpretation which must be resolved in favor of the defendant. The testimony of the alleged threat is improbable and unconvincing. When evidence is so unsatisfactory as to raise a serious doubt of defendant’s guilt, the conviction must be reversed. People v. Williams, 414 Ill. 414; People v. Buchholz, 363 Ill. 270.

We find that the evidence upon which this conviction is based is so unsatisfactory and unreasonable that it raises a serious doubt of defendant’s guilt of the crime of burglary, which must be proved as charged beyond a reasonable doubt. For the foregoing reasons, this case is reversed.

Judgment reversed.

CREES and JONES, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William E. Locke, Jr., Defendant-Appellant.
    (No. 71-296;
    Fifth District —
    October 1, 1973.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, (Michael Q. Jones, Senior Law Student, of counsel,) for appellant.
    Robert J. Hawkins, State’s Attorney, of Fairfield, for the People.
   PER CURIAM.


author: Mr. JUSTICE CREBS

text:
    Charles Douglas Lewis, Plaintiff-Appellant, v. Granite City Steel Company, Defendant-Appellee.
    (No. 71-273;
    Fifth District —
    October 2, 1973.
    Nick D. Vasileff, of Madison, for appellant.
    Robert W. Wilson, of Burroughs, Simpson & Wilson, of Edwardsville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is a suit for personal injuries arising from a collision between an automobile driven by plaintiff, Charles Lewis, and a railroad engine of the defendant corporation. A jury trial was held in the Circuit Court of Madison County and resulted in a verdict in favor of the defendant and against the plaintiff. In answer to a special interrogatory the jury found that the plaintiff was guilty of contributory negligence which was the proximate cause of the collision. The plaintiff has appealed.

After considering the issues raised on appeal we find that no error of law appears, that an opinion would be of no precedential value, and that the judgment is not against the manifest weight of the evidence.

We therefore affirm in accordance with Supreme Court Rule 23. Ill. Rev. Stat, ch. 110A, par. 23.

Affirmed.

G. MORAN, P. J., and JONES, J., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The Housing Authority of Williamson County, Plaintiff-Appellee, v. Mary Collier et al., Defendants-Appellants.
    (No. 71-309;
    Fifth District —
    October 2, 1973.

      Lou Ann Dorothy, of Mt. Vernon, for appellants.
    James B. Bleyer, of Marion, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Louis E. Whiteside, Individually and as Admr. of the Estate of Robert L. Whiteside, Deceased, Plaintiff-Appellant, v. Jack D. Evers, Defendant-Appellee.
    (No. 72-310;
    Fifth' District —
    October 2, 1973.
    Harris and Lambert, of Marion, and Byron L. Connell, Jr., of Mounds, for appellant.
    James B. Bleyer, of Marion, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by plaintiff Louis E. Whiteside individually and as the administrator of the Estate of his son Robert L. Whiteside, deceased, from a verdict for defendant Jack Evers, the judgment entered thereon, and denial of plaintiff’s post-trial motion, in the circuit court of Johnson County.

The complaint aEeged the wrongful death of Robert L. Whiteside, deceased, charging defendant with negligence. In addition to the jury’s finding a general verdict for the defendant, they also found, in answer to two special interrogatories, that defendant was guilty of neghgence and that plaintiff’s decedent was guEty of contributory negligence. There was no eyewitness testimony and the jury was called upon to determine the question of liability from circumstantial evidence; principally the location of the two vehicles which had apparently met on a two lane highway near the crest of a hül between 1:30 and 2:00 A.M. and the location of debris on both sides of the highway.

Plaintiff appellant contends that the closing argument of counsel for defendant was highly inflammatory and so prejudicial as to deny plaintiff a fair trial and that the trial court erred in denying plaintiff’s post trial motion. He has pointed out numerous excerpts of defendant’s argument some of which were objected to, and some of which were not, contending that some are prejudicial error, as weE as arguing the cumulative effect.

Where necessary to insure a fair trial and protect the judicial process from deterioration we consider errors where no objection was made in the trial court. Underwood v. Pennsylvania R.R. Co., 34 Ill.2d 367, 215 N.E.2d 236.

Our latest statement of the rule apphcable here is found in Galluccio v. The Hertz Corp., 1 Ill.App.3d 272, 280, 274 N.E.2d 178, 184, where we said:

“The rule governing review of assignments of error based upon aEeged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill.2d 293, 134 N.E.2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion in him. [Case cited]. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, or a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld.’ ”

See also Brayfield v. Johnson, 62 Ill.App.2d 59, 65, 210 N.E.2d 28, 31.

We necessarily consider the conduct complained of in light of the conduct of opposing counsel. Walsh v. Chicago Rys. Co., 303 Ill. 339, Crutchfield v. Meyer, 414 Ill. 210, 111 N.E.2d 142.

Here in the opening closing argument plaintiffs counsel set the tone, and defendant’s counsel responded in kind. The case was vigorously tried by experienced trial lawyers. Each counsel apparently felt the jury was religiously oriented and sympathetically inclined in a rural county and could be appealed to by oral argument oriented in the same manner. Each attempted to impress upon the jury that righteousness and moral obligation was on his side, at the same time telling the jury that the case must be decided upon the evidence and the law as set out in the instructions. Each sought to exploit every advantage and draw and point out every favorable inference from the circumstantial evidence presented. Each expressed their opinions of the evidence and the inferences they felt should be drawn from it.

We agree that the injection of religious questions and sympathy diverts the jurors from judicial consideration of the facts and the law. (See Bulleri v. Chicago Transit Authority, 41 Ill.App.2d 95, 190 N.E.2d 476.) The rule is equally applicable to plaintiffs and defendants, and whether one counsel exceeded its bounds, must be determined with reference to the conduct of opposing counsel. Here the conduct complained of is not comparable to that present in Bulleri. Both counsel here were much more subtle. We neither approve nor condone the conduct of counsel, and find arguments on both sides that were objectionable.

The trial court both at the time of the arguments and in review on the post-trial motion, did not conclude that the parties were denied a fair trial. No objections are raised, to instructions given or instructions refused. We have considered each of the instances cited by plaintiff, with his contention relative thereto, and have considered the cumulative effect. When we consider the argument of both parties we cannot say that the trial court abused its discretion and permitted the jury to be misled by improper argument.

Only in a clear case of improper and prejudicial argument will a verdict be reversed by a reviewing court. As was said in Bruske v. Arnold, 100 Ill.App.2d 428, 436 241 N.E.2d 191, 195:

“The ultimate question on review is not whether a trial was scrupulously free from error, but whether there was error which operated to the prejudice of the appealing party or unduly effected the outcome below. (Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769.)”

For these reasons we affirm.

G. MORAN and CREBS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. P. L. Diming, Defendant-Appellant.
    (No. 57499;
    First District (2nd Division) —
    September 18, 1973.
    Caplan and Golding, of Chicago, (Robert B. Rosen, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, William K. Hedrick and Thomas Passarelli, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

DOWNING, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leroy Carter, Defendant-Appellant.
    (No. 57422;
    First District (3rd Division) —
    September 20, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


author: Mr. JUSTICE JONES

text:
    Margaret Reed, Plaintiff, v. City of Belleville, Defendant and Third-Party Plaintiff-Appellant—(S.S. Kresge Co., Defendant, and Syl Fietsam, d/b/a Syl Fietsam Jewelers, Third-Party Defendant-Appellee. )
    (No. 73-155;
    Fifth District —
    October 4, 1973.

      Robert J. Sprague, of Belleville, for appellant.
    Wagner, Bertrand, Bauman & Schmieder, of Belleville, (John D. Bauman, of counsel,) for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

The plaintiff, Margaret Reed, filed an action alleging negligence by the city of Belleville, original and only defendant. The plaintiff alleged that she was injured as a result of the city’s negligence and claimed damages.

The defendant city filed its answer to plaintiff’s complaint and, upon motion for leave granted, also filed a third-party complaint against third-party defendants S.S. Kresge Co. and Syl Fietsam d/b/a Syl Fietsam Jewelers. FoUowing motions by each third-party defendant the third-party complaint was dismissed and an amended third-party complaint filed. Third-party defendant Kresge filed an answer and third-party defendant Fietsam filed a motion to dismiss. This latter motion to dismiss the third-party complaint was allowed and plaintiff appeals.

After reciting the fact that third-party defendant Fietsam had filed a motion to dismiss the amended third-party complaint and that the court had heard arguments of counsel and examined briefs of the parties, the order concluded: "It is hereby ordered, adjudged and decreed that said . Motion to Dismiss the Amended Third-Party Complaint is hereby allowed.” The order of dismissal thus dismissed the third-party action as to part, but not all, of the third-party defendants. The order did not make the findings required by Supreme Court Rule 304(a) (Ill. Rev. Stat., ch. 110A, sec. 304(a)). Accordingly this court is without jurisdiction to consider this appeal. Where there is judgment as to fewer than all parties or issues, the absence of a finding that there is no just reason for delaying enforcement or appeal, leaves the judgment unenforceable and unappealable. E.M.S. Co. v. Brandt, 103 Ill.App.2d 445, 243 N.E.2d 695; Callen v. Koretzky, 3 Ill.App.3d 683, 279 N.E.2d 502.

Appeal dismissed.

EBERSPACHER, P. J., and G. MORAN, J., concur,


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK WONDERS, Defendant-Appellant.
    Third District
    No. 3—84—0333
    Opinion filed January 14, 1985.

      Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellant, Mark Wonders, was indicted on one count of reckless homicide. (Ill. Rev. Stat. 1983, ch. 38, par. 9—3.) Following a trial by jury in La Salle County, the defendant was found guilty of that offense. The defendant was sentenced to a three-year term of imprisonment.

On appeal, the defendant contends that: (1) he was denied a fair trial by the erroneous admission of evidence of his blood alcohol content because the blood sample was not extracted in accordance with Department of Public Health standards; (2) the trial court erred in allowing the testimony of a reconstruction expert because the determinative facts were otherwise established by physical and eyewitness evidence; and (3) he was denied a fair trial by the erroneous admission of an emergency room nurse’s opinion that the defendant was intoxicated because there was not an adequate foundation for her opinion.

The facts pertinent to this appeal are as follows. On the evening of October 13, 1983, at about 11 p.m., the defendant and a friend, Chris Johnson, were returning to Mendota from Streator. The defendant approached Mendota from the east on Route 34 in the westbound lane. At the same time, Kay Nelson was leaving Mendota and driving in the eastbound lane of Route 34. Nelson was followed by the victim, Ellen Frieders, who was driving in a separate car. As the two groups met, Nelson was forced to drive her car off the road in order to avoid the defendant’s car, which was in her lane. The defendant’s car barely missed Nelson and then crashed into Frieders’ car, killing her.

La Salle County Deputy Sheriff Tim Pakenham responded to the scene of the accident. The defendant was unconscious and was attended to by medical technicians. Pakenham did not smell any alcohol from the defendant. He did, however, find an open beer can on the floor of the driver’s side of the defendant’s car and two unopened cans of beer on the passenger side. The car smelled strongly of alcohol. The officer also observed gouge marks in the pavement in the eastbound lane and determined that the accident occurred in that lane.

Pakenham remained at the scene after the defendant was taken to the Mendota Community Hospital. After continuing his investigation, Pakenham decided to arrest the defendant for driving under the influence of alcohol. He then asked the Mendota police department to have a sample of the defendant’s blood taken at the hospital. Later, Pakenham received a blood sample from a nurse at the hospital.

The defendant’s first contention is that he was denied a fair trial by the erroneous admission of evidence of his blood alcohol content because the blood sample was not extracted in accordance with Department of Public Health standards.

Section 11—501.2 of the Illinois Vehicle Code governs the testing of individuals who have been arrested for driving under the influence of alcohol. Subsection (a)(1) provides that in order for a chemicál analysis of a person’s blood to be considered valid it must have been performed according to standards promulgated by the Department of Public Health. (Ill. Rev. Stat. 1983, ch. 95^2, par. 11-501.2(a)(1).) Rule 11.01(a) of those standards provides that blood samples “shall be collected in the presence of the arresting officer or other representative of the arresting officer’s agency who can authenticate the sample.” Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 11, at 16 (1982) (hereinafter Standards).

At the defendant’s trial the chemist who analyzed the defendant’s blood sample was allowed to testify that it had a blood alcohol level of .129 percent. Under the Illinois Vehicle Code, an individual is presumed to be under the influence of alcohol if the concentration of alcohol in that individual’s blood is .10 or more. (Ill. Rev. Stat. 1983, ch. 95V2, par. 11—501.2(b)(3).) Defense counsel objected to the admission of this testimony on the ground that Rule 11.01(a) of the Standards was violated. The trial judge denied the objection.

As mentioned above, after the defendant was taken to the hospital, Deputy Pakenham decided to arrest the defendant for driving under the influence of alcohol. He then requested, through the Mendota police, that a sample of the defendant’s blood be taken. Christina Fitzgerald, a registered nurse at the hospital, testified that she extracted a blood sample from the defendant. Pakenham, however, was not present and there was no evidence that any officer from the La Salle County sheriff’s department was present when the blood sample was extracted. Fitzgerald testified that she gave the blood sample to an officer. Deputy Pakenham testified that he received a blood sample from a nurse, but did not remember her name.

Therefore, we agree with the defendant that Rule 11.01(a) of the Standards was violated and that a proper foundation was not presented for admission of the defendant’s blood alcohol content. However, for the following reasons, we find that the error was harmless.

Chris Johnson testified that the defendant drank at least 11 cans of beer between 4:30 p.m. and the time of the accident. The defendant estimated that he drank about 10 beers between 6:30 p.m. and 10:30 p.m., when he began driving. He also stated that he drank part of another can of beer in the car as he was returning to Mendota. A toxicologist testified for the State that in his opinion a person of the defendant’s weight who had an accident at 11:30 p.m. after having drunk 10 or 11 beers over a five-hour period would have been intoxicated at the time of the accident.

Kay Nelson testified that the defendant’s car approached in her lane, barely missed her, and then crashed into Ellen Frieders’ car. Deputy Pakenham observed gouge marks in the pavement in the eastbound lane and determined that the accident occurred in that lane. An accident reconstruction expert testified for the State that the defendant’s car was in the eastbound lane at the point of impact. The defendant admitted that he had fallen asleep prior to the accident or possibly passed out. Finally, although the State chose to do so, it was not required to prove that the defendant was intoxicated in order to convict him of reckless homicide.

The defendant’s second contention is that the trial court erred in allowing the testimony of a reconstruction expert because the determinative facts were otherwise established by physical and eyewitness evidence.

The general rule is that the use of reconstruction testimony should be the exception and not the rule. (People v. Wolfe (1983), 114 Ill. App. 3d 841, 847, 449 N.E.2d 980, 985.) However, in cases where eyewitness testimony is available, the trial judge may in his discretion admit accident reconstruction testimony. His determination will not be disturbed on appeal unless it constitutes an abuse of discretion. Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 448, 461 N.E.2d 64, 69.

We hold that the trial judge did not abuse his discretion in permitting the testimony of the reconstruction expert. The defendant’s speed and location at the time and point of impact were not disputed by the defendant. In addition, the testimony of Kay Nelson and the testimony of Deputy Pakenham did not conflict. Thus, this was not a case in which the testimony of lay witnesses conflicted and the danger existed that the expert’s testimony would tend to merely overpersuade the jury, in its determination of witness credibility, in favor of the party introducing it. See Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 461 N.E.2d 64.

The defendant’s third contention is that he was denied a fair trial by the erroneous admission of an emergency room nurse’s opinion testimony that the defendant was intoxicated, because there was not an adequate foundation of her opinion.

Christina Fitzgerald, a nurse at the Mendota Community Hospital, testified that she smelled a strong odor of alcohol on the defendant’s breath when he was brought into the emergency room. She also testified that the defendant had a general disregard for pain, was verbally abusive, and attempted to leave the hospital. It was her opinion that the defendant was intoxicated. However, she qualified her opinion because the defendant had suffered a head injury which could have caused some of the symptoms of intoxication.

“Since lay persons may express their opinion on the question of intoxication if the opinion is based on their personal observation of and experience with intoxication” (People v. Lawson (1980), 86 Ill. App. 3d 376, 397, 407 N.E.2d 899, 916), we hold that the trial judge properly allowed Fitzgerald to testify that the defendant appeared intoxicated.

For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


text:
      In re J.R. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Thomas Milner et al., Respondents; Annette Robinson, Respondent-Appellant).
    Third District
    No. 3—84—0099
    Opinion filed January 21, 1985.
    Florence Bennett, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The respondent-appellant, Annette Robinson, appeals from the trial court’s order terminating her parental rights as to her children, Tamara, Jacoby, Tiffany, and Taryn (hereinafter the children). We affirm.

On May 2, 1983, the Illinois Department of Children and Family Services (DCFS) brought a supplemental petition (the petition), alleging, inter alia, that the children were abused and neglected under the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702—4), and that the respondent was an unfit parent as defined in the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 705—9) and the Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)). The petition was based on the allegations in several petitions first filed in December 1982, prior to the birth of Tiffany and Taryn, who are twins.

The petition alleged, inter alia, that the respondent and Thomas Milner were unfit parents in that they were guilty of extreme or repeated cruelty to the children; they failed to protect the children from conditions within the children’s environment injurious to the children’s welfare; they had committed neglect of or misconduct towards the children; and they were depraved persons.

The petition made the following specific allegations. According to the petition, Thomas committed battery against Tamara in September 1981. The respondent, with knowledge of that battery, allowed Thomas in 1982 to live in the children’s residence. The petition further alleged that in 1982 Thomas committed the murder of Shamar, the children’s sibling. The respondent, with knowledge of Shamar’s death, allowed Thomas to remain in the children’s residence. Together with Thomas, then, the respondent concealed Shamar’s body in the residence for several weeks. All of the events recited in the petitions occurred prior to the 1983 birth of the twins.

The trial court made positive findings on each of the above allegations. The court also found that it was in the best interest of the children that all the respondent’s parental rights be terminated. Pursuant to those findings the court terminated the respondent’s parental rights and appointed a DCFS guardian with power to consent to the children’s adoption.

The Juvenile Court Act provides that when a court finds it is in the best interests of a minor it may terminate parental rights with respect to the minor. However, the court may terminate parental rights only after finding upon clear and convincing evidence that a parent who does not consent to the minor’s adoption is “an unfit person.” (Ill. Rev. Stat. 1983, ch. 37, par. 705—9(2).) The Act relies upon the definition of a “person unfit to have a child” provided in the Adoption Act. Ill. Rev. Stat. 1983, ch. 40, par. 1501(D).

The respondent’s first argument on appeal is that occurrences prior to the birth of the twins may not serve as the factual basis for the termination of her parental rights towards those two children. In her argument, the respondent points out that the twins have at no time since their birth been in the custody of Thomas or the respondent. The respondent also observes that in the instant proceedings the State presented no evidence of the respondent’s care of or attitude towards the twins.

Normally, a finding as to unfitness of parents would allow the trial court to terminate the parental rights of all the children. (In re Flynn (1974), 22 Ill. App. 3d 994, 318 N.E.2d 105.) We, however, are aware of no authority which directly addresses whether evidence supporting unfitness in regard to a specific child may be based solely upon events occurring before the child’s birth. Perhaps because of the absence of case law directly on point, the parties have focused their discussion before this court on cases concerning determinations of child neglect rather than cases concerning determinations of parental unfitness.

The respondent analogizes the instant case to In re Nyce (1971), 131 Ill. App. 2d 481, 268 N.E.2d 233, and In re Butt (1979), 76 Ill. App. 3d 587, 395 N.E.2d 1. In Nyce, the trial court found that the minor child Nyce was neglected under the Juvenile Court Act. The child’s mother appealed and the appellate court reversed the finding of neglect where the mother had never had custody of the child. In Butt, the trial court considered evidence of the respondent mother’s mistreatment of her stepchild. The court then found that the respondent’s two children by birth, including an infant of whom the respondent had never had custody, were neglected. The appellate court reversed the trial court’s judgment and commented separately on the impropriety of termination as to the infant.

We observe that Nyce and Butt are factually distinct from the instant case. In Nyce, the trial court’s finding of neglect was based upon speculative testimony on the mother’s incapacity to care for any child. The court had no evidence before it that the mother had acted inappropriately concerning a child in her care or custody. In Butt, the appellate court emphasized the seemingly unique circumstances of the mistreatment of the respondent’s stepchild alone. We further observe that the courts have tempered the Nyce decision in later cases so that “[w]hen faced with evidence of prior abuse by parents, the juvenile court should not be forced to refrain from taking action until each particular child suffers an injury.” In re Brooks (1978), 63 Ill. App. 3d 328, 339, 379 N.E.2d 872, 881.

The respondent’s argument does not persuade us. The Juvenile Court Act provides for termination of a respondent’s parental rights when he or she is found to be a person unfit to have a child. That Act does not demand that a respondent with several children be shown unfit as to each subject child before rights to all children may be terminated. We hold that evidence supporting a parent’s unfitness towards some of his or her children may serve as a basis for termination of parental rights towards all of his or her children. Further, we so hold even when the supporting evidence, as here, relates to events all occurring prior to the birth of some of the children.

The respondent’s second argument on appeal concerns whether evidence which had been introduced during a previous adjudication of neglect was properly considered at the instant adjudicatory hearing on parental unfitness. The neglect petition contained allegations that in September 1981, Thomas grabbed and shook the respondent’s baby, Tamara, and thereby caused fracture of Tamara’s right humerus and both her knees.

In December 1981, after considering the neglect petition, the court found that Thomas was an unfit parent and that the children in whose interests the petition was brought were neglected. The court further found that the respondent had not directly caused any injury to the children and that she was fit to care for them.

During the trial in the instant cause, and over the respondent’s objections, the court heard the State’s evidence concerning the events underlying the neglect petition. On appeal the respondent argues that the doctrine of res judicata barred the State from relitigating the facts underlying the neglect petition. The respondent cites no authority which specifically holds that a court’s juvenile adjudication on certain evidence precludes cumulative consideration of that evidence in later juvenile proceedings. We find no error.

At the hearing on the instant petition, the court received evidence that in 1982, after adjudication of the neglect petition, the respondent allowed Thomas to rejoin her household. At that time Thomas had been released from a prison term related to the battery of the respondent’s child which was alleged in the neglect petition. The court here also received evidence that while Thomas was then living in the respondent’s household he murdered one of the respondent’s children.

We previously have held that facts underlying a previous juvenile adjudication may be presented at a subsequent juvenile proceeding. (In re Robertson (1977), 45 Ill. App. 3d 148, 359 N.E.2d 491.) Here, the evidence underlying the neglect petition was necessary for the court’s full understanding of that evidence which developed following adjudication on the neglect petition. The evidence in the neglect petition also gave the court a proper historical context in which to consider if the respondent was fit. See In re Adoption of Kleba (1976), 37 Ill. App. 3d 163, 345 N.E.2d 714; In re Austin (1978), 61 Ill. App. 3d 344, 378 N.E.2d 538.

The court here did not attempt to reevaluate whether the neglect petition established that the subject children were neglected or whether the underlying facts established that the respondent was an unfit parent. Rather, the court considered the evidence underlying the neglect petition cumulatively to evaluate whether, based on that and further evidence, Thomas and the respondent were unfit parents. The evidence was properly before the court.

The respondent’s third and final argument is that there was not clear and convincing evidence that she is an unfit parent and that it was in the best interests of the children that her parental rights be terminated. We disagree.

A finding of unfitness will not be reversed unless it is against the manifest weight of the evidence. (In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84.) The decision to terminate parental rights rests within the sound discretion of the trial court, and on appeal we will not interfere with its judgment absent an abuse of discretion. In re Dalton (1981), 98 Ill. App. 3d 902, 424 N.E.2d 1226.

The evidence at the trial established that Thomas committed a battery against a child of the respondent. The evidence further established that despite the respondent’s apparent recognition that Thomas was dangerous to the children, the respondent permitted Thomas to reside with her and the children after he was released from prison. While Thomas was again living with the respondent he murdered one of the respondent’s children. The respondent then failed to report the murdered child’s death. She also both allowed the child’s body to remain in the residence with her other children and lied to the police to conceal the location of the dead child’s body.

Upon consideration of those facts, we do not find that it was against the manifest weight of the evidence for the court to terminate the respondent’s parental rights as to each of the four children.

For the foregoing reasons, the judgment of the circuit court of Peoria County is hereby affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH WILLIAMS et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 83—1720, 83—1721 cons.
    Opinion filed December 28, 1984.
    Maurice Scott, Jr., of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendants Frankie Jackson and Kenneth Williams appeal, pursuant to Supreme Court Rule 604(f) (87 Ill. 2d R. 604(f)), from the trial court’s denial of their motion to dismiss based on former jeopardy. Defendants herein were represented at trial by Attorney Scott, and were tried together with two other defendants, Tyrone Williams and Fareed Rasheed, who were represented by Attorney Slaughter; the latter two defendants are not parties to this appeal. Facts pertinent to our disposition follow.

In December of 1981, defendants were charged by information with aggravated battery, aggravated kidnaping, unlawful restraint and armed violence. (Ill. Rev. Stat. 1981, ch. 38, pars. 12—4(b)(1), 10—2(a)(5), 10—3, 33A— 2.) They waived a preliminary hearing and filed motions for discovery. The State responded in January of 1982, by way of a “bill of particulars,” that the offense occurred at 347 South Homan at 5 p.m. on October 13, 1981. In July 1982, defendants filed notices that they would rely upon an alibi defense which placed them at the Area 4, Eleventh District police station between 4:30 and 6:30 p.m. on the date of the offense.

On February 1, 1983, the case was called for trial and defendants waived a jury. After a brief opening statement by the prosecutor, the State called the victim as its first witness. The victim testified that between noon and 1 p.m. on October 13, 1981, seven men forced him into an automobile at the corner of Franklin and Sacramento streets. He was beaten while in transit to the 300 block of South Homan, where the seven dragged him to a second-floor apartment, where they further beat and kicked him for about an hour. With all seven men present, he was tied, shot, gagged and thrown into a closet. The victim named all seven men and identified the defendants herein as two of those seven. The latest time the victim estimated he could have seen those seven men was 3 p.m.

Later, having worked free from the gag, the victim yelled and a different man opened the closet door and struck him across the chest with a bat. The. man, Walter, left the closet door ajar to accommodate the victim’s wounded leg. Still later, Walter helped him from the closet, laid him on a bed, and put a mattress over him. The victim’s next remembrance was the police.

When the prosecutor completed direct examination, Attorney Scott moved to dismiss the complaint as to all four defendants on grounds of surprise and prejudice caused by the discrepancy between the State’s pretrial disclosure and the State’s proof at trial. Defendants argued that they had prepared their alibi defense in reliance upon the State’s disclosure that the crime occurred at 5 p.m., but that their alibis were inadequate in light of the victim’s testimony that the offense occurred at about 1 p.m. The State opposed the motion, stating that the discrepancy as to time was not fatal to the information, and that defendants would not be prejudiced. During argument on the motion it became clear that a supplemental police report, consistent with the victim’s trial testimony, had not been tendered to defendants. At this point, the trial court granted a short recess.

After recess, the State made an offer of proof to the effect that disclosure of the wrong time had been an innocent mistake. The trial judge stated that he was convinced the discrepancy was inadvertent, but further opined that “manifest necessity” required that he declare a mistrial to afford defendants an opportunity to prepare an adequate defense. The assistant State’s Attorney suggested that a continuance would remedy defendant’s surprise; he said that the State would not object to a continuance here. Attorney Slaughter responded,

“Judge, I think that the court’s ruling is more appropriate and the reason that I feel so is because to continue it would allow the direct testimony to stand. On the mistrial the witness would have to testify again I believe. If the State is going to prosecute the case, of course, he would have to testify again as to his direct testimony; and I think that if that is going to be the court’s remedy, that that is the only proper way to do it and not merely to continue the case.”

Attorney Scott was silent. The trial court then declared a mistrial.

The case was again called for trial in June 1983, and’ defendants moved to dismiss the charges based on former jeopardy. The trial court denied the motion on June 9, and defendants filed their notices of appeal on July 15,1983.

Opinion

At the threshold, we note that defendants apparently filed their notices of appeal after the expiration of the 30 days provided by rule, and without any motion to file a late notice of appeal. (87 Ill. 2d R. 606(b) and (c).) However, our supreme court has held that the sua sponte dismissal of an appeal constitutes an abuse of discretion where the defendants’ noncompliance is technical or minor and where the appellate court has allowed the appeal to be briefed and argued over an extended period of time before the dismissal. (See People v. Williams (1974), 59 Ill. 2d 243, 320 N.E.2d 13; People v. Brown (1973), 54 Ill. 2d 25, 294 N.E.2d 267. But see People v. Brown (1973), 54 Ill. 2d 25, 27-28, 294 N.E.2d 267 (dissent).) In this case, defendants advised the trial court within 30 days of their intention to appeal, and they filed their notices six days late. Because the parties have submitted their briefs and argued orally, the issue is ripe for decision, and we will reach the merits.

The Bill of Rights provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb ***.” (U.S. Const., amend V.) The double- jeopardy clause applies in State proceedings as a matter of fourteenth amendment due process. (Benton v. Maryland (1969), 395 U.S. 784, 794, 23 L. Ed. 2d 707, 715, 89 S. Ct. 2056, 2062.) The Illinois Constitution provides in part: “No person shall *** be twice put in jeopardy for the same offense.” (Ill. Const. 1970, art. I, sec. 10.) These provisions are essentially coextensive (People v. Laws (1963), 29 Ill. 2d 221, 224, 193 N.E.2d 806, 195 N.E.2d 393), and are founded on the principle, fundamental to Anglo-American jurisprudence, that

“the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223, quoted in People v. Deems (1980), 81 Ill. 2d 384, 388, 410 N.E.2d 8, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.

A defendant is “placed in jeopardy” when he or she is put to trial (United States v. Jorn (1971), 400 U.S. 470, 479, 27 L. Ed. 2d 543, 553-54, 91 S. Ct. 547, 554); technically, jeopardy attaches when the jury is sworn (People v. Friason (1961), 22 Ill. 2d 563, 565, 177 N.E.2d 230), or in a nonjury trial, when the first witness is sworn. (People v. Deems (1980), 81 Ill. 2d 384, 389, 410 N.E.2d 8, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) The instant facts leave no doubt that defendants were subjected to jeopardy in the initial proceeding, in that the State elicited substantial inculpatory testimony from an important witness. The finding that jeopardy has attached does not by itself bar retrial; rather, it presents the issue whether retrial will be barred.

The United States Supreme Court has long recognized that double jeopardy “does not mean that every time a defendant is put to trial before a competent tribunal he [or she] is entitled to go free if the trial fails to end in a final judgment.” (Wade v. Hunter (1949), 336 U.S. 684, 688, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.) The court reasons that society has a strong interest in administering criminal justice so that trials will proceed to full, fair and final verdicts, but that criminal trials are complex, and errors may occur which do not implicate the oppressive practices targeted by the double jeopardy clause. (See Arizona v. Washington (1978), 434 U.S. 497, 505, 54 L. Ed. 2d 717, 728, 98 S. Ct. 824, 830; United States v. Jorn (1971), 400 U.S. 470, 479-80, 27 L. Ed. 2d 543, 553-54, 91 S. Ct. 547, 554-55; Wade v. Hunter (1949), 336 U.S. 684, 688-89, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.) Accordingly, a defendant’s motion for mistrial is generally considered to remove the double jeopardy bar, and the State is entitied to retry the defendant even though the error which prompted the motion is attributable to the State. See Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083.

A more difficult question arises where a mistrial is declared without the defendant’s consent. In such a case, the balance weighs more heavily in favor of the defendant, because the risks sought to be avoided by the double jeopardy prohibition are subtle (see, e.g., Carsey v. United States (D.C. Cir. 1967), 392 F.2d 810, 813-14 (concurrence)), and because the prohibition is “not against being twice punished, but against being twice put in jeopardy.” (United States v. Ball (1896), 163 U.S. 662, 669, 41 L. Ed. 300, 302, 16 S. Ct. 1192, 1194.) In determining whether the double jeopardy clause permits retrial after the declaration of a mistrial without defendant’s consent, the Supreme Court has concurrently adhered to the principle enunciated by Mr. Justice Story over a century and a half ago in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, 165:

“the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ***.” (Emphasis added.)

A cursory reading of the record indicates that the mistrial at issue was declared upon the trial court’s motion, hence reprosecution would be barred unless there was a “manifest necessity” for the mistrial. At oral argument, the State conceded that this mistrial was not supported by a manifest necessity, and our reading of the record in light of Illinois discovery law (see, e.g., 87 Ill. 2d 412(a), 412(f) and 415(g); People v. Weaver (1982), 92 Ill. 2d 545, 558-60, 442 N.E.2d 255; People v. Petropoulos (1965), 59 Ill. App. 2d 298, 323-24, 208 N.E.2d 323, aff’d (1966), 34 Ill. 2d 179, 214 N.E.2d 765) leads us to believe that manifest necessity is at least problematic here. However, the dispositive issue in this appeal is whether defendants consented to a mistrial.

Attorney Slaughter orally argued the appeals of defendants, Kenneth Williams and Frankie Jackson, although he had defended Tyrone Williams and Fareed Kasheed at trial. He stated that he spoke on behalf of all four defendants when he argued to the trial court “that the court’s ruling is more appropriate,” and “if [mistrial] is going to be the court’s remedy, that that is the only proper way to do it and not merely to continue the case.” Attorney Slaughter argued to us that he intended to agree only to the trial court’s sua sponte declaration of a mistrial, and that his comments should be understood as preferring mistrial over continuance, but not as a consent to a mistrial. He stated further that the defense repeatedly objected to the mistrial, and the following day, defendants submitted a written motion renewing their prayer for dismissal.

The record fails to support counsel’s representations in this court. No objection, argument, qualification or comment appears in the record other than the passage which we quoted at length earlier. There is no indication in the record that defense counsel renewed their motion to dismiss, in writing or otherwise, as a response to the declaration of a mistrial. The motion to dismiss based on former jeopardy was filed four months later, at the start of the second trial, and of course, that motion assumed the effective termination of the first trial.

As to the contention that Attorney Slaughter’s statement did not amount to consent, we disagree. In People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, cert. denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292, our supreme court found adequate consent to a mistrial under more ambiguous circumstances than we. After the mention of a news article about the case, the trial court there asked defense counsel for a motion, and counsel responded that the motion was for a mistrial; defendant then submitted a written motion to dismiss the indictment. Following a lengthy hearing, the court declared a mistrial, but defendant objected. Defendant later withdrew his objection, but couched his withdrawal in terms which suggested that the mistrial was declared sua sponte. (74 Ill. 2d 527, 534, 387 N.E.2d 325.) The Mosley court held that retrial was not barred, and stated, “We think it may be fairly said here that defendant sought or at least consented to the mistrial which the trial court ultimately declared, even though that mistrial occurred, at least in part, as a result of prosecutorial conduct which would have been better left undone.” (Emphasis added.) 74 Ill. 2d 527, 535, 387 N.E.2d 325.

Similarly, in People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 431 N.E.2d 353, our supreme court found sufficient consent to a mistrial declared by reason of erroneous jury instructions. At trial in that case, defense counsel made his motion in the alternative: first, to give additional instructions; second, to dismiss; or third, for a mistrial. The inclusion of the mistrial alternative was largely at the behest of the judge and prosecutor. When the trial court denied the first two alternative motions and declared a mistrial, defense counsel responded, “Judge, we think also the mistrial should really be on the Court’s motion, since we don’t think we were the cause of the mistrial.” (88 Ill. 2d 502, 506, 431 N.E.2d 353.) The supreme court noted that this language did not amount to a withdrawal of the motion or an objection to the entry of a mistrial, and again the court found that defendant “at least consented” to the mistrial. 88 Ill. 2d 502, 508-09, 431 N.E.2d 353.

We believe that Mosley and Orenic stand for the proposition that a defendant’s explicit approval of a mistrial declaration will constitute consent so as to avoid the bar of double jeopardy. Although defendants herein did not move for a mistrial, this record reveals explicit approval amounting to consent. Attorney Slaughter argued to the trial court that he thought a mistrial was “more appropriate” and “the only proper way to do it.” Assuming, arguendo, that these words were intended by Attorney Slaughter to express no more than a preference for sua sponte mistrial over continuance, we fail to see how such a “preference” can be interpreted as withholding consent. Notably, we do not hold that Attorney Scott’s silence constituted consent: the usual case of consent to mistrial involves a motion by defendant, and our research has uncovered no case in which silence was held to be a consent to mistrial so as to permit retrial. Rather, we hold that Attorney Slaughter’s statement on behalf of all four defendants amounted to consent to this mistrial.

For the foregoing reason, we affirm the trial court’s order denying defendants’ motion to dismiss based on former jeopardy.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.