author: MR. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Defendant in Error, v. Stanley Spinks, Plaintiff in Error.
    Gen. No. 50,507.
    First District, Third Division.
    June 16, 1966.
    Jack Osswald, of Chicago, for plaintiff in error.
    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 defendant in error.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Stanley Spinks and James Raybourn were indicted for the murder of Samuel Seay. The second count of the two-count indictment charged voluntary manslaughter. They pleaded not guilty and waived a jury trial. The court found them guilty of murder and sentenced them to from 14 to 40 years in the penitentiary.

This appeal is by Spinks only. His contention is that he was not proven guilty of murder and that the record only supports a finding of voluntary manslaughter. He asks this court to reduce his sentence accordingly.

Margaret Johnson, who lived with Samuel Seay in his mother’s home, was walking with him on 47th Street in Chicago at approximately 1:30 a. m. As they crossed St. Lawrence Avenue someone called to Seay and he turned around and went back around the corner. She continued to a tavern, stayed there a couple of minutes and returned to where she had left Seay. Around the comer and across the street she saw two men, later identified as Spinks and Raybourn, punching Seay. She picked up an empty wine bottle and ran to his aid. Raybourn told her not to come any closer; when she was about 15 to 20 feet away Spinks took a gun out of his pocket and shot Seay. He and Raybourn then ran away.

Mrs. Johnson had seen a police car on 47th Street near the tavern. She ran to summon the police. Officer William Beavers, who had seen Mrs. Johnson enter and leave the tavern, heard the shot and was on his way to the scene. The officer pursued the two fleeing men north on St. Lawrence to an alley near 46th Place where they jumped over a fence and ran into a basement. They were captured and searched. A .45 caliber pistol was found in the basement. They were brought back to the scene. Mrs. Johnson immediately identified them as the ones who had shot Seay. At that time she heard Spinks say, “I wish I had killed Sam.” When Officer Beavers asked, “Why did you shoot the man?” Spinks replied, “The dirty — should have been killed.” Seay died a few hours later.

At the police station the men first denied the shooting and said that Margaret Johnson had shot Seay. They also said that the .45 was not the gun used. Beavers returned to the basement and recovered another gun, a .25 caliber automatic.

At the trial the defendants testified that they had remonstrated with Seay, who seemed under the influence of liquor, about his participation four hours earlier in an attempted robbery of Raybourn and also about a statement he was supposed to have made that he intended to rob Spinks. Spinks said that he and Seay were lifelong friends and that the main argument was between Raybourn and Seay so he walked away. As he looked back he saw Seay reach in his belt for a gun so he jumped on him and grabbed his hand. Raybourn seized the other hand and they all wrestled. Raybourn let loose and Spinks pulled his own gun. One of the guns went off, he did not know which and he did not know whether he or Seay was struck. He said he “panicked” and ran away. He did not recall saying, “I wish I had killed him” or anything else, when he was brought back to the scene. Raybourn and Seay were also longtime friends. Raybourn testified that Seay made his living as a robber and pickpocket and that at first Seay joked about the aborted robbery of Raybourn. One word led to another and both he and Seay became abusive. Spinks got into the argument; Raybourn remarked that Seay must have a gun somewhere and patted Seay’s midsection. At this Seay backed off and pulled a gun. Raybourn held one of his arms and Spinks the other. Raybourn saw Margaret Johnson pick up a bottle and approach with it in her hand, and thought she was going to hit Spinks on the head. He let loose of Seay and rushed at her and knocked her down. He testified that he saw Seay fall but did not see him shot. He said he took Seay’s gun from his hand after he fell because he thought Seay was going to shoot Spinks in the back. He ran away and tossed the gun in a garbage can.

The defense also introduced evidence that Spinks had been informed that Seay intended to rob him and that Seay had robbed other people. Spinks, on the other hand, admitted that he had a record as a burglar.

It is argued that the evidence does not show a motive, or that Spinks either intended to kill Seay or to do him great bodily harm. It is therefore concluded that the shooting must have been because of a sudden and intense passion resulting from provocation. It is pointed out that Seay and Spinks, and Raybourn too, had been friends since childhood, that no “bad-blood” existed between them, that Seay did not fear them or he would not have responded to their call, that the argument in the beginning was not heated but became so only as it progressed, and that Seay’s drawing his gun so provoked Spinks that he too drew his gun and shot his lifelong friend.

One of the weaknesses of this argument is that the defendant’s own testimony does not support it. Although the State indicted him for both murder and manslaughter, the prosecution was directed toward murder alone. It was undisputed that the defendant killed Seay with a gun and, since the State’s evidence indicated that the killing was murder, it became the defendant’s obligation to prove circumstances justifying, mitigating or excusing his act. People v. Washington, 27 Ill2d 104, 187 NE2d 739 (1963). The defendant testified that the main argument was between Raybourn and Seay and that he had withdrawn from it. He grabbed one of Seay’s arms only because, when he turned back, he saw that Seay had a gun. He said that in the ensuing struggle somehow, someway, the gun went off; he did not know which gun was fired or who was hit until Seay slumped to the ground. He received no injury in the affray. There were two against one, and he did not testify that he ever believed he was in danger of being injured. His testimony negates voluntary manslaughter. There is little evidence that the deceased’s conduct provoked an intense passion in the defendant and that he shot the deceased while he was acting under such passion. Ill Rev Stats, ch 38, § 9-2(a), (b) (1963).

The testimony of the State’s eyewitness, if believed, proved that the killing was murder; there was not only proof of malice and an intent to do great bodily harm, there was also proof of intention to kill. Spinks and Raybourn were the aggressors; they called Seay to come to them; they were seen holding him against a wall and beating him; Spinks drew his .25 caliber automatic and deliberately shot the unarmed Seay; he and Raybourn fled and hid; he threw away his gun and Raybourn threw away his; when he was brought to the dying Seay he said that Seay should have been killed and he wished he had killed him. His words indicated an intention to kill, just as his flight, concealment and denial of the shooting showed a consciousness of guilt.

The trial court believed the State’s witnesses. In commenting on the evidence at the conclusion of the trial the court said this about Margaret Johnson:

“Margaret Johnson was carefully cross-examined by both defense counsel [each defendant and his own attorney] and her demeanor on the witness stand impressed the Court that she was attempting to tell the truth as she remembered it. ... I think Margaret told the truth. ...”

There is little reason for this court to think otherwise. Mrs. Johnson, although contradicted in one or two things, was corroborated in many. Her testimony and the evidence as a whole proved beyond a reasonable doubt that the defendant was guilty of murder.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Lorine Bruin, Plaintiff-Appellee, v. Peter Bruin and Unknown Owners, Defendant-Appellant.
    Gen. No. 50,746.
    First District, Third Division.
    June 16, 1966.
    John M. Van Der Aa, of South Holland, and Byron S. Matthews and Thomas A. Matthews, of Chicago, for appellant.
    Piacenti & Cifelli, of Chicago Heights, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal taken by the defendant from a final order of the circuit court of Cook County in a partition proceeding which found that the plaintiff was the owner of an undivided one-half interest in certain real estate and directing that the property be partitioned. The matter was referred by the court to a master in chancery who, upon the termination of his tenure as a master, was appointed by the court as a special commissioner to proceed and file a report with the court.

The defendant raises and argues only one point in his brief. He contends that the conveyance of the subject property into joint tenancy was made by the defendant, Peter Bruin, not as a gift, but to obtain a mortgage loan and to avoid a foreclosure suit, and that the evidence in the case is clear that the property in question was not conveyed by Peter Bruin to his then wife as a gift or advancement.

The facts are these: Lorine Bruin, the plaintiff, testified that she married Peter Bruin in Crown Point, Indiana, in 1929 and was divorced from him in April, 1961. Five children were born of the marriage. In the latter part of January, 1942, the family moved to the property involved, which is located at 151 East 168th Street in South Holland, Illinois. Prior to that time the defendant’s father, Cornelius Bruin, lived upon the premises. Prior to January, 1942, the four brothers and sisters of the defendant and the defendant had an interest in the property, together with the father, Cornelius Bruin. In October, 1941, Herman Bruin, one of the brothers of the defendant, came to the home of the parties in Glenwood, Illinois, and asked Peter Bruin, the defendant, if he would be interested in taking care of the property, which was going to be sold for delinquent taxes. He also stated to the defendant that if the defendant would take care of the property, and the plaintiff and the defendant would take care of the defendant’s father for the remainder of his life, the defendant’s brothers and sisters would sign their shares over to the defendant. The plaintiff agreed to this arrangement, and at that time accompanied the defendant to the office of Mr. Van Der Aa, where the parties agreed to make “some kind of payments” on the house. At that time and place the defendant told the plaintiff that the property would be in her name when it was all straightened out. The testimony further indicated that the defendant had said, “When it was settled, when it was all straightened out, I would be in joint tenancy. My husband told me that all the time.” The property involved is an eight-room farm house, two-story residence. The father of the defendant lived with the defendant and the plaintiff, and the plaintiff took care of him for nine years until he died in about March, 1951. Plaintiff washed for him and fed him and took care of him. The title to the property, pursuant to the agreement entered into between the brothers and sisters of the defendant, was quit-claimed to Peter Bruin subject to a life estate in Cornelius Bruin, the father.

The plaintiff testified that in December, 1951, she accompanied her husband to Mr. Van Der Aa’s office. At that time Mr. Van Der Aa explained to her that the property was in joint tenancy and that she owned one-half of the property. She further testified that she had talked to her husband hundreds of times about the property and about the fact that neither could sell the property until both signed together, and that her husband in February, 1960, told her he realized that she had a half interest in the property. The children of the parties hereto were present on these occasions. A Torrens certificate of title to the property in question was admitted in evidence reflecting ownership in joint tenancy by Peter Bruin and Lorine Bruin, the parties hereto.

Mrs. Lois Roberts, a daughter of the parties, testified that she was present in the home of the parties in February, 1960, at which time the parties hereto had an argument because her sister, Joyce, was married without the approval of the defendant, her father. The witness testified, “Then mom said if he was through, she had her half of the property. He said he knew she was entitled to it, but he didn’t want to sell it right now.”

Joyce Zoeteman, another daughter of the parties, testified that prior to her marriage she had lived with her family in the property in question. She corroborated plaintiff’s testimony regarding her grandfather living with them until his death, and that her mother took care of him. She testified to a conversation which took place in her presence and in the presence of her then boy friend and present husband. The father said to her mother, “I know it’s half your property, but I don’t want him in the yard.”

Mr. John J. Van Der Aa testified for the defendant. He stated that he was a real estate appraiser and had a mortgage on the farm property in question. At the time he made the original loan he did not give a thought to Mrs. Bruin being made a joint tenant in the property in order to secure the loan. He also stated that he would not have demanded that she become a joint tenant and execute the mortgage papers along with her husband.

The next witness for the defendant was William Staat, President of the First National Bank in Dolton. He first met the defendant when the defendant came to the bank to refinance a mortgage he had on the property. He suggested that the defendant put the property in joint tenancy with his wife. He further testified that it was not an absolute policy of the bank that both parties sign the papers, although that would be preferred. This witness testified that he “believed” that a conveyance of the property into joint tenancy with Mrs. Bruin was discussed at the time they signed the papers. It might be mentioned in this connection that both the plaintiff and the defendant testified that Mrs. Bruin, the plaintiff, did not go to the bank and Mrs. Bruin testified that she never saw Mr. Staat in her life until he walked into the hearing room. The uncontradicted testimony of both the plaintiff and defendant is that the papers were brought from the bank to the home for Mrs. Bruin’s signature. Mr. Staat merely testified in answer to a question if he ever discussed the conveyance (into joint tenancy before the loan was made) with Mrs. Bruin, “I believe I did.”

The defendant testified that he went to the bank in Dolton in order to obtain a loan on the property and that Mr. Staat consented to make the loan and “recommended that both names be on the title to obtain this mortgage loan.” That the property was then placed in joint tenancy with his wife. He took the papers home from Mr. Staat to Mrs. Bruin for the signing, as she was never in Mr. Staat’s office. The defendant admitted that the plaintiff had cared for his father until the time of the father’s death. When the defendant was asked whether he had told his wife that he was aware of the fact that half of the property was hers, he said, “No, I don’t recall. Well, I wouldn’t say for sure whether I made that statement or not, but I am sure I didn’t say that.” In answer to the question as to whether he did or did not know whether he made the statement, he answered, “I don’t believe so.”

Based upon the foregoing testimony, the defendant claims that when he was having difficulty making mortgage payments he went to the bank in Dolton and applied for a loan to pay off the existing debt, and that a representative of the bank asked him to have the property conveyed in joint tenancy to the defendant and his wife because the policy of the bank required this in making loans. That the title was, accordingly, conveyed to a third party, who conveyed back to Peter Bruin and Lorine Bruin, his then wife, in joint tenancy in 1951. It is the further position of the defendant that no gift was intended to his then wife, Lorine Bruin, at the time of the conveyance in 1951 but that the conveyance was at the request of the loaning bank as a prerequisite to obtaining the loan. It is the further contention of the defendant that since title was put in joint tenancy in 1951 solely to satisfy the requirement of the bank before a loan would be made, there is no presumption of a gift and no gift was intended or indicated. At the time of the divorce between the parties in 1961 the divorce decree did not adjudicate the interest of the parties, nor was such an adjudication sought by either of the parties in that proceeding. The defendant now seeks to overcome the presumption of a gift, where property is conveyed to a wife, solely based upon the testimony regarding the policy of the bank of Dolton to the effect that it desired to have the property in joint tenancy between husband and wife when making a loan. Mr. Staat’s testimony was neither conclusive nor convincing on this question and when the evidence is considered as a whole, the trial court was justified in finding for the plaintiff. The law has long been established that where property is taken in the joint names of the husband and wife, and the consideration is furnished by one of them, there is a presumption of a gift from the one furnishing the consideration to the other. That presumption can be overcome only by clear, convincing and unmistakable evidence that no gift was intended.

In the case of Baker v. Baker, 412 Ill 511, 514, 107 NE2d 711, the court said:

“The mere circumstance that a husband purchased the property placed in joint tenancy with his wife does not make him the equitable owner of her interest. Property voluntarily conveyed by a husband to his wife, without fraud or coercion is presumed to be a gift, notwithstanding the fact the husband purchased the property with his own money, and the wife may hold the property against him. . . . This presumption of fact is not conclusive but may be rebutted by proof. It can only be overcome by clear, convincing, and unmistakable evidence that no gift was intended. (Lutticke v. Lutticke, 406 Ill 181; Link v. Emrich, 346 Ill 238.) It is often said the presumption of gift is not to be frittered away by mere refinement.”

In the case before us, the testimony of Mr. Staat of the Dolton Bank, at best, could be considered as a desire on the part of the bank to have property placed in joint tenancy between husband and wife when a loan is made by the bank. He further testified that if any objection was urged the bank would not insist upon it. He did not explain the reason for the policy of the bank but indicated that if it was not placed in joint tenancy they would require the wife to sign anyway. On cross-examination Mr. Staat merely testified that they preferred to have both parties sign the papers, and that it was not an absolute policy of the bank that property be placed in joint tenancy in order to secure a loan.

The defendant cites the case of Insoda v. Insoda, 400 Ill 596, 81 NE2d 473, wherein the husband, in order to avoid liability under the Dram Shop Act, arranged to have the property placed in a land trust with the wife as the sole beneficiary thereof. The property there was acquired through the joint efforts of the husband and wife, and there was no evidence in that case that the conveyance was made for any other reason than to protect him against dramshop liability. The court there held that the presumption of a gift was overcome by the evidence in that case, and that decision is readily distinguishable from the case before us.

The case of Scanlon v. Scanlon, 6 Ill2d 224, 127 NE2d 435, is easily distinguishable on its facts from the case at bar. The evidence in that case showed that the property was conveyed to the wife by the husband at a time when the husband was in the process of being adjudicated a bankrupt, and that the conveyance was made solely for the purpose of avoiding its confiscation in the bankruptcy proceeding. The property in its entirety in that case was conveyed to the wife and no joint tenancy was created. Both parties had contributed to the acquisition of the property and the court held it was unreasonable to determine that it was the intention of the parties to convey the entire estate as a gift. In the Scanlon case, supra, on page 231 the court, after mentioning that where a husband purchases real estate and takes title in his wife, there is a presumption of gift or advancement, said the following:

“Among the circumstances which tend to rebut the presumption of a gift or advancement, or to show that the presumption is unreasonable, is the fact that the property conveyed consists of the husband’s entire estate. ... In Pool v. Phillips, 167 Ill 432, 442, this court observed: Tt has been uniformly held, whenever the question has arisen, that the gift of a husband’s or father’s entire estate to a wife or child by way of advancement is unreasonable.’ ”

We have examined all of the cases cited on behalf of the defendant and all are distinguishable from the case at bar. In this case the property was placed in joint tenancy with the wife by the act of the husband. The husband acknowledged on numerous occasions that the wife was half owner of the property. The evidence offered by the defendant as to his only reason for having the property placed in joint tenancy is not only not clear, convincing and unmistakable evidence that no gift was intended, but on the contrary, is indecisive, ambiguous and unclear. The cases cited by the defendant are cases in which all of the husband’s property was conveyed to the wife, and as pointed out in Scanlon v. Scanlon, supra, the ordinary presumption of a gift is unreasonable under those circumstances. The conveyance of the property in this case involved a joint tenancy, and while the plaintiff did not advance any money toward the acquisition of the property she did perform services, and the presumption of a gift has not been overcome.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Louis Klein and Melvina Klein, d/b/a Apex Associates, Plaintiff-Appellee, v. Morton Ickovitz, Defendant-Appellant.
    Gen. No. 50,885.
    First District, Third Division.
    June 16, 1966.

      Nathan Shefner, of Chicago, for appellant.
    Jacobs, Ribstein & Lieberman, of Chicago (Eugene Lieberman, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant appeals from a judgment confessed in the name of Louis Klein, d. b. a. Apex Associates, for rent due in the sum of $1,280 and attorney’s fees of $200. The trial court had vacated a prior judgment confessed in the sum of $191.50 and allowed an amended complaint to be filed to take into account the rent for subsequent months. The rent owing had accrued, pursuant to the terms of the lease, after the defendant-lessee had been evicted in a forcible detainer action for breach of the lease.

Defendant first contends that his obligation to pay rent was suspended by his eviction, and that the acceptance of rent payments subsequent to breach of the conditions of the lease operated as a waiver of the lessor’s right of forfeiture. These propositions aptly state the general rule where the lease does not otherwise provide. In the instant case, however, the lease contains clauses to the effect that the lessee’s duty to pay rent survives his eviction in a forcible detainer proceeding, and that acceptance of rent after breach does not constitute a waiver of the lessor’s right to proceed under the terms of the lease. The validity of these clauses has long been established, Grommes v. St. Paul Trust Co., 147 Ill 634, 35 NE 820; Vintaloro v. Pappas, 310 Ill 115, 141 NE 377, and is now stare decisis.

Defendant’s final contention is that Louis Klein, in whose name the judgment for rent was confessed, had no “suable” interest in the leased premises. In the lease in question Apex Associates was named as lessor and Morton Ickovitz as lessee. It was signed as follows:

“For Apex Associates: Melvina Klein
In the presence of:
Louis Klein
Morton Ickovitz.”

This contention was the basis of a motion to vacate the judgment in question in the trial court, and in his answer thereto Louis Klein claimed that he had an interest in the management and profits of the real estate, that the lease was signed by him, and that all rents were paid by defendant to him. He denied that his signature on the lease was that of a witness and said that he signed the lease as a party owning an interest in Apex.

Examination of the lease, however, shows that Louis Klein did not sign on behalf of Apex, but signed apart from the Apex signature and in a place designated for the signature of witnesses.

The judgment as it now stands is in favor of Louis Klein and Melvina Klein, d. b. a. Apex Associates. The original judgment was in favor of Louis Klein alone, but after judgment the trial court allowed plaintiff’s motion to amend the pleadings and judgment so as to include Melvina Klein as party plaintiff. Defendant contends that the trial court was without jurisdiction to order that the pleadings and judgment be amended by the addition of another party. He cites section 46 (3) of the Civil Practice Act which in effect limits the right to amend the pleadings after judgment to instances where the amendment is made to conform the pleadings to the proof.

Plaintiff does not argue that he comes within the provisions of section 46. Rather he contends that no new party was added, that the addition of Melvina Klein was merely the correction of a misnomer, as permitted after judgment by section 21(3) of the Civil Practice Act, and that the proper party plaintiff is and always has been Apex Associates.

We cannot agree that the true party in interest is Apex Associates or that the addition of Melvina Klein as a party plaintiff was the mere correction of a misnomer. True, Apex Associates was named as the lessor, but there is no indication of the character of Apex— whether it was a corporation, a trust, or a partnership. Judgment was originally entered in the name of Louis Klein, d. b. a. Apex Associates. On this state of the record we can only conclude that Louis Klein was the plaintiff. Defendant moved to vacate the judgment on the ground that Louis Klein had no interest in the leased premises. At that time Louis Klein requested and was permitted to add Melvina Klein’s name to the pleadings and judgment order, presumably so that the judgment would read in favor of one who had signed the lease. The addition of Melvina Klein was the equivalent of adding a new party plaintiff after judgment.

Since we have concluded that the judgment in favor of Louis Klein cannot be sustained and that the addition of Melvina Klein as party plaintiff after judgment was improper, the judgment must be reversed.

Judgment reversed.

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


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rex Lee Green, Defendant-Appellant.
    Gen. No. 50,198.
    First District, Fourth Division.
    June 17, 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 McCORMICK

delivered the opinion of the court.

CHARGE: Unlawful sale of narcotic drugs.

DEFENSE AT TRIAL: Denial of sale or possession of any narcotic drugs.

JUDGMENT: Case was tried before the court without a jury. The court found defendant not guilty of the sale of narcotic drugs, but found him guilty of possession of narcotic drugs, and sentenced him to the Illinois State Penitentiary for a term of not less than two years nor more than two years and one day.

POINTS RAISED ON APPEAL: The charge was not proved beyond a reasonable doubt.

STATE’S EVIDENCE AS TO SALE: Police Officer William Parker testified that on October 10, 1963, he and Detective Robert Jarrett met with one Charles Moore, searched him and determined that he did not possess narcotics; that they gave Moore two five-dollar bills in United States currency, making a note of the serial numbers of the said bills; that the officers, together with Moore, went in the squad car to the vicinity of 43rd Street and Langley Avenue, where they stopped and Moore left the car, entering a tavern at 701 East 43rd Street; that a few minutes later they saw him come out of the tavern and stand in front of it; that a short time later defendant Green came out of the tavern, and he and Moore had a conversation, when “something was exchanged between the two of them”; that they both went back in the tavern and came out again in about one minute. The officer further testified that Moore then came to the police car and gave the officers two tinfoil packages which a field test indicated contained heroin; that the officers then entered the tavern and arrested defendant Green, Harold Franklin and Nathalia Hudson, who were all sitting together in a booth. The officer stated that a search of the defendant and Franklin revealed no narcotics or money; that the Hudson woman gave them the two recorded five-dollar bills and later gave them an additional thirteen tinfoil packages which contained a white powder. The officer testified that when he asked the defendant how long he had been selling narcotics the defendant said that this was the first time; that the Hudson woman said she had got the narcotics and the money from the defendant. The officer further stated that he had reason to believe Moore was an addict.

Moore testified that he was searched and given the recorded five-dollar bills, after which he went to the tavern while the police officers stayed on the other side of the street; that he, Moore, went into the tavern and saw the defendant with Franklin and a young woman; that he was not certain whether or not she was the Hudson woman. He testified that he talked to the defendant with reference to obtaining drugs; that the defendant said he didn’t have any but his man did; that he gave the defendant the two five-dollar bills; that he did not see what defendant did with them; that the defendant told him to meet him outside; that Moore then went out and the defendant soon came out and gave him two bags of heroin which he carried across to the officers. Moore further testified that the officers gave him money after the buy was made. He also testified that, while he had used narcotics, he was not an addict.

Nathalia Hudson, a codefendant, testified in her own behalf as follows: She had known the defendant prior to the night in question; she met him in the tavern where Franklin joined them, and they were all sitting in a booth. Moore came in and talked to the defendant, after which Moore and the defendant went outside; when defendant came back he was alone and handed her some money which had something wrapped in it. She gave the police the money she had in her coat pocket and thirteen tinfoil packages which she had in her bra, and stated that all the narcotics were wrapped in a five-dollar bill which she got from the defendant. She stated that she did not use narcotics.

Defendant gave the following testimony in his own defense: He had been in the Air Force from 1952 to 1959 when he was honorably discharged. On the evening of October 10 he met the Hudson woman in the tavern, then had a conversation with Moore who told him he was sick and wanted narcotics. The defendant told him he had none, and walked outside the tavern. Moore followed him, still talking, and defendant asked Moore for a cigarette which he gave him, after which defendant returned to the tavern with Moore. The Hudson woman asked Moore for a cigarette and he gave her a package. She then went to the washroom and when she returned she handed Moore’s cigarettes to the defendant, who gave them to Moore. Defendant denied that he had admitted to the police officers that he had made a sale of narcotics, and denied that he said this was the first time he had ever sold any narcotics.

During the argument at the trial it was pointed out that the defendant had been released previously by mistake from the County Jail and that he had come back and surrendered himself. With reference to the testimony of the Hudson woman, the court doubted that she intended the court to believe the defendant had given her thirteen packages of narcotics wrapped in a five-dollar bill. The court found the defendant, Green, not guilty of the sale of narcotics but found him guilty of possession, entered judgment and imposed a sentence.

OPINION: The evidence relied on by the State is not convincing. We are aware of the rule repeatedly stated by the courts that the finding of the trial court with reference to the question of the credibility of the witnesses is a matter for the trial court. However, that is not an immutable rule. In People v. Reese, 34 Ill2d 77, 213 NE2d 526, the Supreme Court reversed a judgment of conviction, and said:

“We attach great weight to the findings of the trier of fact, including his appraisal of the credibility of witnesses, but they are not conclusive and it is our duty to set a conviction aside where the evidence is so unsatisfactory as to raise a reasonable doubt of a defendant’s guilt. (People v. De Stefano, 23 Ill2d 427; People v. Butler, 28 Ill2d 88; People v. Pellegrino, 30 Ill2d 331.) In our opinion the totality of the circumstances here leaves a reasonable doubt as to the defendant’s guilt and the conviction cannot stand.”

In the case before us the defendant was found not guilty of the sale but he was found guilty of possession of narcotics.

The testimony of Moore as to the sale was at variance with that of the police officer. Moore testified that he talked to defendant in the tavern, and made the arrangements there; that he met defendant on the outside where the sale took place; and that he then turned the narcotics over to the police. The officer testified that after Moore entered the tavern he came out; that the defendant then came out and Moore engaged in conversation with the defendant, during which conversation something was exchanged between them; that they both went back into the tavern and in about a minute they both came out, after which Moore turned over the narcotics to the officer. The Hudson woman did not testify that she saw anything which would indicate a sale.

As noted above, the court found defendant not guilty of the sale. In order that he be found guilty of possession the State had to prove beyond a reasonable doubt that defendant had possession of narcotics. The testimony of Nathalia Hudson that defendant gave her thirteen bags of heroin wrapped in a five-dollar bill is unbelievable and was expressly disbelieved by the trial judge. The police officer did not find any narcotics or money on the person of the defendant. The testimony of the police officer and Moore’s testimony as to defendant’s possession of narcotics are inextricably interwoven with the testimony relating to the sale of the identical narcotics. We find no basis from which there could be a determination that defendant possessed narcotics but did not participate in a sale of those narcotics.

DECISION: The judgment is reversed.

Reversed.

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

       Ill Rev Stats (1966), c 38, §22-3: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act.”


author: MR. PRESIDING JUSTICE DRUCKER ENGLISH, J.,

text:
    J. David Kaminsky, Plaintiff-Appellee, v. Arthur Rubloff & Company, Defendant-Appellant.
    Gen. No. 50,640.
    First District, Fourth Division.
    June 17, 1966.

      ENGLISH, J., dissenting.

      Berchem, Schwantes & Thuma, of Chicago (Donald N. Berchem, Richard Owen Young, Michael A. Dunn and James O. Latturner, of counsel), for appellant.
    Jacobs and McKenna, of Chicago (Lloyd E. Williams, Jr. and Barry L. Kroll, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff brought an action based upon negligence to recover damages for injuries which were sustained by him when he unlocked the first floor door to an elevator shaft, stepped in while the elevator was at another floor, and fell to the bottom of the shaft. A judgment in favor of the plaintiff for $15,000 was entered upon a verdict returned by the jury after which defendant filed motions for judgment notwithstanding the verdict and in the alternative for a new trial, both of which were denied. Defendant appeals from the verdict and judgment and from the denial of those motions.

On the day of the accident (December 23, 1953) plaintiff was employed as manager of the Martha-Maid Manufacturing Company, a tenant of the sixth floor of a building which was managed by defendant, located at 367 West Adams Street. Plaintiff’s employer and another tenant of the building had permission to use the passenger elevators after 6:00 p. m., when the elevator cars were closed down and the elevator operators off duty. After 6:00 p. m. the elevator doors could be opened only by inserting a “key” through a hole therein, and the elevator could be at any floor when the door was opened in that manner. Shortly after 6:00 p. m. on the aforesaid date plaintiff returned to the building of his employer following an office Christmas party to complete some work, first entering the lobby which was described as being approximately thirty feet in length and ten feet wide at the front door but narrowing to six feet in width about thirteen feet from the front door. Two passenger elevators are at the rear of the lobby. Plaintiff obtained the “key” and unlocked the door to one of the elevators without difficulty. He then opened the door but did not look through a window therein to ascertain whether the elevator was at the first floor, and simultaneously stepped in, but the elevator was at a higher floor and plaintiff fell to the bottom of the shaft.

Plaintiff testified that the normal practice in the building after 6:00 p. m. was to leave the elevator on the ground floor with the door closed and the light turned off (the light switch was inside the elevator approximately thirty inches from the edge of the elevator door) ; that on prior occasions when the elevator was in this position the indicator light above the elevator would be unlit; that he had used the elevator five times per week after 6:00 p. m. since 1949; and that whenever he opened the elevator door in the aforesaid manner he always found the elevator to be at the lobby floor. The plaintiff further stated that on the night of the accident the elevator indicator light was unlit as usual and that he relied thereupon for assurance that the elevator was on the ground floor.

The testimony is in conflict as to what type of indicator light was used and whether it would be lit when the elevator was on the ground floor.

The testimony was also in conflict as to the type of night light burning in the lobby. Plaintiff testified that:

When I walked in there [the lobby], there was one light on in the lobby. That was at the front of the lobby, about twelve feet in ... . The light was in the ceiling, about fifteen feet high.

It was a fluorescent light. It was rather dim.

Paul McClosky, who had been employed by the defendant at the building in question for fifteen years, testified that:

As to what lights were lit after the building was closed, the 8-foot fluorescent lights directly in front of both elevators were lit at all times during the night. After six, there was no other light in the lobby except the 8-foot fluorescent lights. The ceiling was ten feet high. The . . . light was about five feet from the elevator doors, I imagine.

George Jones, who had worked for the defendant for eighteen years, stated that:

Yes, there was such a thing as a night light. In the lobby, that consisted of two fluorescent light tubes. They were located up in the ceiling, in front of the elevators. The lights were something like eleven feet from the floor ....

In addition, Louis Capron testified and stated that he was employed by the defendant until 1964; that at the time of the accident he managed the building in question for the defendant; and that:

As to what you would see if you looked into this elevator shaft through this window when the light in the elevator was out, you would see nothing.

Unless you have very strong eyes, it would be black.

On recross-examination the witness stated that:

I was not speaking about with the door open. If you open the door, it would be quite a different question. Then you get a reflection.

The witness did not state that, as a result of the reflection, the plaintiff would have been able to ascertain whether the elevator was at the lobby floor. Nor was any other evidence adduced to that effect or to contradict the testimony of Capron that if one looked through the window in the elevator door he would only see darkness.

Defendant first contends that the court erred in denying its motion for judgment notwithstanding the verdict since the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. In Jolliffe v. Miller, 126 App Div 763, Ill NYS 406, the plaintiff was injured when he fell into the elevator shaft after walking through the open elevator door. The evidence in that case revealed that the plaintiff had been a tenant in the defendant’s building for two years; that as plaintiff approached the elevator on the first floor the door thereto was open and the operator was standing nearby; that plaintiff had never seen the door open if the elevator was not there and that the door was always open when the operator was standing nearby. The plaintiff in that case admitted not only that he did not look to ascertain whether the elevator was at the first floor but also “that if the car had been there at the time he was hurt and he had looked before he stepped in, with the condition of light the way it was, he would have been able to see the car. . . .” Relying upon his past experience, plaintiff assumed that the elevator was at the first floor and walked straight in but, since the elevator was at a higher floor, he fell into the shaft and was injured. The court held that the question of whether plaintiff was contributorily negligent was for the jury, stating that the open door and the elevator operator standing nearby together constituted such an invitation to enter that plaintiff was lulled into security.

In Tippecanoe Loan & Trust Co. v. Jester, 180 Ind 357, 101 NE 915, the defendant was negligent in failing to repair a catch which would hold the first floor elevator door closed when the elevator was at another floor. It was the custom, of which plaintiff was aware, that the door was closed when the elevator was at another floor. The hallway which led to the elevator was “somewhat dark” and plaintiff, seeing the elevator door to be open, did not look to see if the elevator was at the first floor but relied upon the aforesaid custom and stepped in and fell to the bottom of the shaft. The court reversed a judgment for the plaintiff and remanded the cause for a new trial because of various erroneous instructions which were given to the jury but also stated that since plaintiff relied upon the aforesaid custom in entering the elevator it was a question for the jury as to whether he was guilty of contributory negligence.

In Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 26 NW2d 429, the shaft of an antiquated elevator was guarded only by a gate which had the appearance of slats of wood on which was posted a sign reading: “This gate must not be left open.” Plaintiff was collecting the garbage and, after talking to someone, turned around and noticed that the gate was raised, simultaneously stepped in and fell to the bottom of the shaft. There was no evidence that the area in front of the elevator was well lighted but there was evidence that the floor of the elevator was dark and dirty. While the evidence also revealed that the plaintiff knew that the gate could be open when the elevator was at another floor, the court pointed out that the plaintiff testified that in the thirty-seven months he had used the elevator he had never known the gate to be open when the elevator was not at that floor. The court, stating that it was quite immaterial that other persons had a contrary experience, held that the question of contributory negligence was for the jury to determine.

The conclusion to be drawn from the aforesaid cases is that if the evidence showed that the plaintiffs therein, relying upon custom and past experience, had reasonable grounds to believe that the elevator was at the floor of their proposed entry, and they did not look to ascertain whether the elevator was actually there, the question as to whether they were guilty of contributory negligence was for the jury to resolve. A motion for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to support the verdict of the jury. In the instant case defendant adduced no evidence that the lighting in the hallway was sufficient to enable the plaintiff to have determined whether the elevator was at the first floor. Moreover, there is evidence from which the jury could have concluded that plaintiff relied upon the absence of an indicator light for assurance that the elevator was at the first floor.

Defendant cites numerous cases in support of his position, all of which are distinguishable from the instant case. While in all of those cases the plaintiffs fell into elevator shafts and were injured, in none of them did the plaintiffs contend that they relied upon the existence of custom and past experience which would positively indicate that the elevator was at the floor of their purported entry. Moreover, in Johnson v. Vass, 32 Ill App 2d 113, 177 NE2d 28, the plaintiff testified that he looked to see if the elevator was there, thought it was, but was mistaken (apparently, had he looked with sufficient care he would have been able to determine that the elevator was at another floor); in Johnson v. Citizens Nat. Bank of Norwalk, 152 Ohio St 477, 90 NE2d 145, the plaintiff not only was mistaken about the location of the elevator when he thought he saw it at the floor of his purported entry, but he also made no effort to turn on a light which was located directly in front of the elevator; in Bridges v. Hillman, 82 NW2d 615 (Minn), where the facts were substantially similar to those of the Citizens Nat. Bank of Norwalk case, supra, the court stated at page 618 :

The ready availability of a light, providing a safe course of action, was a decisive factor in support of the holding of contributory negligence in Johnson v. Citizens Nat. Bank ....

The plaintiff in Senseney v. Landay Real Estate Co., 345 Mo 128, 131 SW2d 595, opened the elevator door with a key similar to that of the instant case as he had done in the past. While he argued that the presence of the key was the “legal equivalent of assurance that the elevator was at the lobby landing, and an invitation to enter the shaft,” the court pointed out at page 598 that:

It was obvious to anyone who ever used this key that it was not the only existing instrumentality with which it was possible to open the door.

In Jones v. Wood (Mass), 115 NE2d 367 (1953), a protective gate in front of the elevator shaft was not completely closed and the plaintiff, believing that the elevator was therefore at the floor of his entry, stepped in and fell to the bottom of the shaft. The court stated at pages 369, 370:

In general, it may be said that he had a right to rely to some extent upon the expectation that the gate would be in its protective position if the elevator was not at the street floor [the floor of the purported entry] .... But in the circumstances known to the plaintiff, he could not so rely. He had been told by truck drivers that the gate did not at times “work freely and perfectly.”

In O’Dell v. Dean, 356 Mo 861, 204 SW2d 248 the plaintiff walked through an open elevator door but the elevator was at another floor. He testified that even though the lobby was dark he made no effort to turn on the lights; and that he looked through the opening and thought the elevator was there. While the plaintiff also testified that he had never found the door to be open when the elevator was at another floor, the court pointed out that the plaintiff knew the elevator door was worn and if slammed too hard would bounce open regardless of the floor on which the elevator was located.

As a general rule, the issue or issues of negligence and contributory negligence are to be determined by the jury and should not be disposed of by the court in a peremptory manner. Kennedy v. Swift & Co., 234 Ill 606, 85 NE 287. We find that whether under all the circumstances of this case plaintiff was guilty of contributory negligence was properly a question of fact for the jury.

Defendant next contends that at the time of the accident plaintiff was not a passenger on the elevator and therefore the court’s instruction to the jury that defendant owed a duty to the plaintiff to exercise the highest degree of care was prejudicial error. While there is no question but that the operator of a passenger elevator is a common carrier and owes a duty to its passengers to exercise the highest degree of care (Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520; Hartford Deposit Co. v. Sollitt, 172 Ill 222, 50 NE 178) we are apprised of no cases which specifically discuss the issue as to whether a person under circumstances similar to those of the instant case was considered to have been a passenger on the elevator. In B. Shoninger Co. v. Mann, 219 Ill 242, 76 NE 354, and Lotspiech v. Continental Illinois Nat. Bank & Trust Co., 316 Ill App 482, 45 NE2d 530, where the plaintiffs therein fell into empty elevator shafts, the courts in both cases held that only a reasonable degree of care was owed to the plaintiffs. While those cases are distinguishable from the instant case in that there is no indication that either of the aforesaid plaintiffs proceeded under the theory that they were passengers on the respective elevators, we believe that the principle enunciated therein as to the duty owed to the plaintiffs is applicable to the instant case. Since the injury to the plaintiff was not caused by the elevator itself, but merely by the absence thereof, we cannot say that the plaintiff was a passenger thereon to whom a duty was owed to exercise the highest degree of care.

Plaintiff cites various authorities which hold that the duty to exercise the highest degree of care is not confined to instances where injuries were received only while riding on a conveyance but is also owed to persons boarding upon or alighting from the carrier. However, those cases are inapposite since in the case at bar the plaintiff was boarding only what he thought to be an elevator, not the elevator itself. Plaintiff further argues that Lake St. El. R. Co. v. Burgess, 200 Ill 628, 66 NE 215, is closely analogous to the instant case. In that case the plaintiff had been standing on the defendant railroad’s platform when the defendant’s train, which consisted of two connected cars, approached and stopped. Due to the darkness on the platform the plaintiff, in attempting to board the train, stepped into the open space between the cars thinking that it was the train platform and was injured. While the court held that the plaintiff was a passenger and was owed the duty of the highest degree of care, that case is readily distinguishable from the instant case. The plaintiff in that case had been a passenger on the defendant’s shuttle train which went only as far as the platform on which she was standing, at which point passengers had to transfer to a train on the defendant’s main line. The court pointed out at page 631 that:

The evidence shows that this island platform, on which appellee was placed by appellant to take a connecting car, was thirty-five feet above the ground, with trains running on either side, and that she was placed there by appellant knowing that she would take a connecting line on its own system within a short time.

In that case the defendant had already accepted the plaintiff as a passenger and this “stopover” was merely a temporary interruption of a continuous journey. In the instant case, however, the plaintiff was not in the midst of a continuous journey on the defendant’s conveyances and therefore the carrier-passenger relationship had not previously attached. In situations where the alleged negligence involves something less than the augmentation of the peril to which persons riding in conveyances are exposed, the carrier is held to the duty of exercising only ordinary or reasonable care for the safety of its passengers. Endres v. International R. Co., 129 App Div 785, 114 NYS 631.

We find that the plaintiff was not a “passenger” on the elevator when the accident occurred; that plaintiff, being an employee of a tenant of the building managed by the defendant and in the building for the purpose of completing some work, was an invitee to whom defendant owed the duty to exercise a reasonable degree of care. Therefore the court’s instruction to the jury that the defendant owed to the plaintiff a duty to exercise the highest degree of care was prejudicial error.

Defendant’s final contention is that the court erroneously and prejudicially instructed the jury that an ordinance which was not in force as to the defendant at the time of the accident could be considered as giving rise to a standard of care. The ordinance, with which the defendant had not complied at the time of the accident, was passed by the City Council of Chicago on July 16, 1952, but did not become effective as to existing structures until July 1, 1954, which was over six months after the accident. It required the installation of a “car-parking device” on all elevators which would prevent the first floor elevator door from being opened while the car was at another floor unless two keys were used. Plaintiff relies upon Edmonds, Inc. v. Vojka, 332 F2d 309 (App DC 1964) in which is stated the principle that a statute in effect as to one class of persons is admissible as evidence in an action against one of another class, to whom the statute by its terms is inapplicable and who had not complied therewith, to indicate a standard of accepted practice. However, that case is inapposite to the instant case and therefore we find it unnecessary to express our opinion as the propriety of that principle. The defendant in that case, while excluded from coverage under the relevant statute, was afforded a reasonable opportunity to become aware of the existence of a statutory custom and to comply therewith. In the instant case, however, the defendant was not excluded from coverage under the ordinance but rather was specifically allowed two years to comply therewith. Moreover, plaintiff does not contend that the requirements of the aforesaid ordinance merely constitute a codification of an existing custom.

Therefore, prior to the expiration of the aforesaid two 'year period, there was no standard of accepted practice with which the defendant was required to comply in any respect.

Darling v. Charleston Community Memorial Hospital, 50 Ill App2d 253, 200 NE2d 149, relied upon by the plaintiff, is also distinguishable from and inapposite to the instant case. In that case the court held that the trial court properly allowed to be introduced into evidence the Standards for Hospital Accreditation of the American Hospital Association, state licensing regulations and the defendant’s bylaws as indicating the responsibilities which the medical profession and other responsible authorities regarded as both desirable and feasible for a hospital to assume. The defendant in that case was an accredited member of the aforesaid association and therefore was bound to conform to those standards in order to retain its accreditation; and, as a requisite to continuing in operation, the defendant was bound to conform with the state regulations and its own bylaws. Thus, the standards which were introduced into evidence were not only in full force and effect at the time of the injury to the plaintiff but were also applicable to and governing the defendant. In the instant case, however, the ordinance did not apply to or govern the defendant at the time of the accident since the effectiveness thereof as to this defendant was delayed by the proper legislative authority.

Plaintiff also relies upon Prosser, Torts § 35 (3rd ed 1964), which provides as follows:

[W]here the statute does set up standard precautions, although only for the protection of a different class of persons, or the prevention of a distinct risk, this may be a relevant fact, having proper bearing upon the conduct of a reasonable man under the circumstances, which the jury should be permitted to consider. There is, in other words, a statutory custom, which is entitled to admission as evidence.

We cannot say that a reasonable man would be expected to comply with the ordinance in the instant case immediately after its passage or at any time prior to the time specifically allowed for compliance.

Moreover, the instruction sets forth that the duty owed to the plaintiff was “the highest degree of care” which, as we have heretofore ruled, is prejudicial error.

Therefore the trial court committed prejudicial error in giving the instruction in question.

We find that, because of the aforesaid prejudicial errors, the defendant did not receive a fair trial. Therefore the judgment of the trial court is reversed and the cause remanded for a new trial in a manner not inconsistent with the views expressed in this opinion.

Reversed and remanded.

McCORMICK, J., concurs.

ENGLISH, J.,

dissenting.

Regardless of plaintiff’s understanding (obviously mistaken) that when the indicator light was out the elevator cab would be at the lobby floor, it was nevertheless his duty to exercise ordinary care in opening the door and entering the elevator shaft.

Plaintiff testified that at the time in question he was returning from a company Christmas party; that he did not know whether the elevator was present at the lobby floor; that he knew the elevator was quite frequently used after hours by “the people at the Pierce Electric Company” on another upper floor; that he did not look through the window of the elevator door to see if the elevator cab was there; that upon opening the door he did not look to see if the elevator cab was there. He also testified that he did not feel with his hand or foot or do anything by way of testing to see if the elevator was there; that he had never done that. Nor did he attempt, before entering, to turn on the elevator cab light, the switch for which was on the inside of the front side of the cab about 30 inches from the door. (Plaintiff also testified that on prior occasions after business hours this light inside the elevator had never been on, and that he would always turn it on.) The testimony of plaintiff shows that he simply inserted the “key” into the half-inch (or smaller) hole in the elevator door, slid the door open, and, while facing and looking “straight ahead,” stepped forward into darkness, and fell down the elevator shaft.

I am not impressed by the fact that on this occasion plaintiff may have followed the same routine he had employed hundreds of times before without injury. There is no prescriptive right in negligent conduct, and the standard of ordinary care was still applicable at the time of plaintiff’s injury. Surely, if plaintiff, relying as he claims he was on his past experience, had entered the elevator shaft with his eyes closed, it could not reasonably be said that he was exercising due care. I see no essential difference between the facts of such a hypothesis and those of the instant case.

In my opinion the acts of plaintiff, taken in the light most favorable to him, constitute a clear case of contributory negligence as a matter of law.

As to the authorities relied on by the majority, I do not consider the 1908 New York decision to be in point, nor greatly persuasive. More or less the same may be said of the 1913 Indiana case and the more recent Iowa decision. In all three of these cases the elevator doors were standing open and this fact was held to be the equivalent of an invitation to enter. As stated by the Iowa court:

Another fact which courts have uniformly construed favorably to plaintiff on the issue of contributory negligence in cases of this kind is that the door of the elevator was open. It has been considered as an important factor in the affirmance of judgments for plaintiff and of requiring a submission of plaintiff’s negligence to the jury. A closed or partly closed elevator door is construed as a warning or a notice to investigate. But an open elevator door is uniformly regarded as an invitation to enter. (Emphasis supplied.) Hull v. Bishop-Stoddard Cafeteria (Iowa), 26 NW2d 429, 450 (1947).

On the other hand, I do consider the opinion in Johnson v. Vass, 32 Ill App2d 113, 177 NE2d 28, to be remarkably close to the facts of the instant case and very persuasive in its treatment of the whole subject matter and in the numerous authorities cited.

I agree with the majority that the judgment in favor of plaintiff should be reversed, but, rather than remand the case for a new trial, I would enter judgment here in favor of defendant.

       Affirmed in a memorandum opinion at 196 NY 604, 89 NE 1102.

       The cases cited by the defendant are: Johnson v. Vass, 32 Ill App2d 113, 177 NE2d 28; Johnson v. Citizens Nat. Bank of Norwalk, 152 Ohio St 477, 90 NE2d 145; Bridges v. Hillman, 249 Minn 451, 82 NW2d 615; Senseney v. Landay Real Estate Co., 345 Mo 128, 131 SW2d 595; Waldrup v. Carver, 240 NC 649, 83 SE2d 663; Browne v. Sieger, Cooper & Co., 191 Ill 226, 60 NE 815; Blankertz v. Mack & Co., 263 Mich 527, 248 NW 889; Michaels v. McCarthy, 341 Mass 159, 167 NE2d 633; Jones v. Wood (Mass), 115 NE2d 367 (1953); O’Dell v. Dean, 356 Mo 861, 204 SW2d 248; Selby v. McWilliams Realty Corp., 246 Miss 568, 151 So2d 596; Darrow v. The Pair, 118 Ill App 665; Gorbulove v. Buttnick, 39 Wash2d 266, 235 P2d 158; Cox v. Bondurant, 220 Mo App 948, 7 SW2d 403.

       The instruction provided in relevant part as follows:
      Since this ordinance did not require compliance until July 1, 1954, the plaintiff is not claiming that the defendants violated the ordinance. However, you may consider this ordinance as a standard of accepted elevator operation and maintenance in deciding whether the defendants exercised the highest degree of care in the operation and maintenance of the elevator in question. You may not consider that the nonconformance with the standard of the ordinance is evidence of an ordinance violation.

       Affirmed in 33 Ill2d 326, 211 NE2d 253.

       The bottom of the window was 68 inches above the lobby floor.


author: CORYN, P. J.

text:
    Edsel L. Burgess, Plaintiff-Appellant, v. Allyn Erickson, Defendant-Appellee.
    Gen. No. 65-73.
    Third District.
    June 20, 1966.
    Elmo E. Koos, of Peoria, for appellant.

      McConnell, Kennedy, McConnell & Morris, of Peoria, for appellee.
   CORYN, P. J.

This is an appeal from a summary judgment entered for defendant, Allyn Erickson, on a motion in bar of a cause by plaintiff, Edsel Burgess, to recover for personal injuries allegedly caused by defendant’s negligence. By affirmative defense, defendant asserted that the incident complained of arose out of and in the course of the joint employment of the parties by a common employer operating under the provisions of the Workmen’s Compensation Act, and that this common-law cause was therefore barred by § 5(a) of that Act (Ill Rev Stats, c 48, § 138.5 (a)). Plaintiff denied the applicability of the Workmen’s Compensation Act. Affidavits, counter-affidavits, and parts of plaintiff’s discovery deposition were given in support of and against defendant’s motion.

Defendant has filed a motion here to dismiss this appeal for the reason that plaintiff did not file the record on appeal within sixty days as required by ch 110, § 201.1(2) (d), Ill Rev Stats. The notice of appeal was filed on September 7, 1965, and the sixtieth day from that date was November 6, 1965. The office of the Clerk of the Appellate Court was closed on November 6, being Saturday, and the appellant filed the record on appeal the following Monday, that is, November 8, 1965, which was sixty-two days from the date the notice of appeal was filed. The time within which the record on appeal must be filed in this court is computed by excluding the first day, that is, the day on which the notice of appeal is filed, and including the last day, unless the last day is a Sunday, a legal holiday, or a day in which the office of the clerk of this court is closed. Ill Rev Stats, ch 131, § 1.11; Pettigrove v. Parro Const. Corp., 44 Ill App2d 421, 194 NE2d 521. Accordingly, the filing of the record on appeal herein on Monday, November 8, 1965, was within the time prescribed by law, and therefore the motion to dismiss this appeal is denied.

The essential facts of this case, as established by the pleadings and the deposition and affidavits attached to the motion are not in dispute. Plaintiff, on November 21, 1961, had left Building W at 7:30 a. m. after completing his work shift at the East Peoria plant of the Caterpillar Tractor Company, and was crossing the company’s Parking Lot #9 on his way to another company parking lot to meet his car pool. Defendant, on his way to work at Caterpillar, drove his car into Parking Lot #9 and there struck plaintiff. Parking Lot #9 was reserved for use of supervisory personnel, and neither plaintiff nor defendant were authorized to park there. The sole issue to be determined, then, is whether, under these facts, plaintiff’s suit against defendant is barred by § 5 (a) of the Workmen’s Compensation Act.

A similar situation was presented in Chmelik v. Vana, 31 Ill2d 272, 201 NE2d 434. There, at the conclusion of the work day, as plaintiff was walking across a parking lot provided by the employer, he was struck by the automobile of defendant, who was also leaving work. In Chmelik v. Vana, supra, the court held “that an injury accidentally received on the premises of the employer by an employee going to or from his actual employment by a customary or permitted route, within a reasonable time before or after work, is received in the course of and arises out of his employment.” The plaintiff attempts to distinguish Chmelik v. Vana, supra, from the instant case, by arguing that here both plaintiff and defendant were prohibited by their employer’s work rules from parking in Lot #9, whereas in Chmelik, both parties were rightfully using the parking lot where the accident occurred. We reject this argument. It has been held that where an injury is sustained during the performance of an act which is within the sphere of duty, it is covered by the provisions of the Workmen’s Compensation Act, even though the mode of performance was in violation of an order or rule. B. F. Gump Co. v. Industrial Commission, 411 Ill 196, 103 NE2d 504. It is only the violation of orders and rules which limit the scope of the duty itself, that places the employee outside the course of his employment. Angerstein, Illinois Workmen’s Compensation, § 440 et seq. (1952 edition). Even assuming the employees here were violating a work rule by merely traversing Parking Lot #9 in going to and from work, that fact, although it might establish the negligent performance of a duty, would not convert acts which are characterized as being within the scope of employment to ones outside the sphere of duty. Cohen v. Cummings, 330 Ill App 431, 71 NE2d 198.

We are of the opinion that the judgment of the Circuit Court of Tazewell County is correct.

Affirmed.

ALLOY and STOUBER, JJ., concur.


author: MR. PRESIDING JUSTICE BRYANT

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerry Henderson, Defendant-Appellant.
    Gen. No. 49,720.
    First District, Second Division.
    June 21, 1966.
    Rehearing denied July 26, 1966.

      R. Eugene Pincham and Charles B. Evins, of Chicago, 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 BRYANT

delivered the opinion of the court.

This appeal comes from a finding of guilty entered in the Circuit Court of Cook County, February 7, 1964, upon an indictment charging the crime of theft, Ill Rev Stats, 1961, c 38, § 16-1. The appellant claims that the court below went outside the record and relied on matters of his own belief and not supported by the record. It is also claimed that the appellant was not proven guilty of the offense charged.

The complaining witness, Harry Davis, testified that on October 5, 1962, he met three men whom he did not know on a street in the city of Chicago. They were soon joined by the appellant, Jerry Henderson. According to this witness, he wanted to get some money to show to one of the other men, and the appellant went with him as he proceeded to collect the $4,400 which, except for $20 currency exchange fees, was later taken from him. He wanted the money because one of the men he did not know had said he had inherited some money from his grandfather, and that if anyone had money to show, he would divide his money among them.

Davis went to his home with the appellant, and told the appellant to distract Mrs. Davis so that the complaining witness could get their bankbook without his wife’s seeing him. This was accomplished, and at the same time Davis took $400 in cash which was kept in the house. The two men then went to the bank where the complaining witness drew a cashier’s check in the amount of $4,000. Following this, Davis, the appellant Henderson, and the three unidentified men went downtown to see an attorney whom Henderson knew, and whom, they hoped, would be able to help them cash the check. The attorney told the men he was not in the check cashing business, but called a currency exchange and told them that the men were coming over with a check. He told the people at the exchange he could not verify the authenticity or negotiability of the check. Davis, Henderson and the three other men then proceeded to the currency exchange. They were told that the exchange did not have $4,000 in cash at the moment, but after calling the bank on which the cashier’s check was drawn, the proprietor of the exchange drove Davis and Henderson in his own automobile to a downtown bank where he cashed the check, and after taking the exchange’s fee from the money, turned the remainder over to Davis. Davis put the money in his pocket. Davis testified that he and Henderson then joined the other three men who were waiting for them near the currency exchange, and that upon entering the car he was driven to “God knows where.” One of the men said something about “bumping him off,” and the complaining witness testified that he was frightened. He said that one of the men had a tire iron. The appellant is then said to have put his hand in Davis’ pocket and taken the money. He said the men then went into a gangway and returned with a bundle which they said contained both Davis’ money and that of the unknown man who had said he had inherited money from his grandfather. When the bundle was opened, it contained a single one-dollar bill.

The appellant testified that when he met the three unidentified men, they told him that they had been playing cards with Davis and had won some money. He said the men asked him to go with Davis while he got the money so that if anything later came up they could not be identified. He admitted going with Davis to the various places mentioned in the complaining witness’ testimony. Henderson said, however, that after Davis received the money and the two of them had rejoined the three men, one of them gave him $300 and that he then left the group.

The appellant further testified that he was in two separate lineups on October 16, 1962, that Davis viewed both these lineups and failed to identify the appellant. It was further claimed by the appellant that he had seen the complaining witness in the Criminal Court Building and that Davis had said to him, “I know you didn’t take my money. ... I didn’t want to say that you had taken my money, but the officer kept pressing me.”

A police officer, Detective Lovejoy Foster, testified that he arrested the appellant in connection with this crime, and that the appellant denied his participation in the offense at that time. He testified that the appellant claimed he was an intermediary between the complaining witness and the three unidentified men to whom, he said, Davis had lost some money. The statement Henderson gave the police was consistent with the testimony he gave at the trial. The report made out by this officer shows that the complaining witness had told him at one point that he had lost $70 to the three unidentified men playing cards. On redirect examination, however, the officer explained, “Mr. Davis said that the gentlemen were playing cards and that they told him that he was playing and he had . . . lost $70.00, which he states, also, that at no time did he ever have any cards. But it was from the information that they told him that he had lost $70.00 and he owed $70.00. But this man that had the money, he would give all of the gentlemen some money if they could show that they had money.”

The first claim made on this appeal is that the court below went outside the record and relied on matters on which there was no evidence. The appellant points to places in the record where the court below made comments about him which were not supported by the testimony. All but one of these comments, however, occurred after the finding of guilty had been entered by the court. The one instance where the court made a comment about the appellant during the trial is when the first witness to testify, the attorney to whom the men went with the cashier’s check, identified the appellant. The court then interjected, “With a pair of tight-fitting pants.” While the court below acted improperly in commenting on the appellant’s clothing, this did not constitute reversible error. While the Appellate Court will look closely at any case where the trial judge makes comments prejudicial to the defendant in the course of a jury trial, in this case the matter was tried with the judge as trier of fact. We cannot say here that the fact that the court below commented on the appellant’s tight-fitting pants demonstrates a prejudging of his guilt. From that point to until after the finding of guilty had been pronounced, nothing occurred which would indicate prejudice on the part of the trier of fact.

There are, however, complaints concerning the conduct of the trial judge at the hearing in mitigation and aggravation. At this hearing, the court below made some statements concerning the appellant’s clothing which would have been much better left unmade, but after reviewing the record as a whole, we cannot say that the finding of the trial judge was the result of passion or prejudice. “Unless there is reasonable doubt as to defendant’s guilt based upon the evidence, it is our duty to affirm the judgment, if the record is free from substantial prejudicial error.” People v. Williams, 17 Ill 2d 193, 161 NE2d 295 (1959).

The other claim made by the appellant in this court is that he was not proved guilty of the alleged crime. He first points to the fact that he was indicted for the crime of theft. He alleges that if the evidence shows guilt of any crime, it is the crime of robbery, and claims that his conviction cannot stand since he was indicted for the wrong crime. With this contention we cannot agree. The crime of theft is in part defined in the Criminal Code as follows:

“A person commits theft when he knowingly:
“ (a) Obtains or exerts unauthorized control over property of the owner; or
“(c) Obtains by threat control over property of the owner;
<( 99

The testimony given at the trial was sufficient to support a conviction for this crime. Subsection (a) is sufficiently broad to cover any unauthorized taking or control of property; subsection (c) would also apply to the facts of this case. The fact that the appellant might have been indicted for the crime of robbery rather than theft does not invalidate this conviction. It is true that a criminal defendant cannot be indicted for one crime and found guilty if the proof shows he committed an entirely different offense. Thus, for example, it would be improper if a defendant were indicted for the crime of arson and convicted upon proof that he committed theft. That is not the case here. In this case, the appellant was indicted for theft and the evidence sustains the finding that he committed every element of that crime. The argument is not made here that the appellant did not have the requisite intent to commit the offense charged. This being so, we have no basis for reversing the conviction on the claim that the proof did not show the crime alleged in the indictment.

We hold, therefore, that the proof is sufficient to sustain this conviction. While it is true that the complaining witness’ recounting of the plan to “show money” was somewhat less than completely clear, it was perfectly clear with respect to the appellant’s taking from his possession the sum of $4,400 less $20 currency exchange fees. There being no reversible error, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Williams, Defendant-Appellant.
    Gen. No. 49,985.
    First District, Second Division.
    June 21, 1966.

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

delivered the opinion of the court.

Defendant was found guilty by a jury of burglary and theft and was sentenced to 15 to 25 years in the penitentiary. He appeals.

On the evening of January 4, 1963, Father Richard Todd was returning to his room in the rectory of St. Francis of Assisi Catholic Church when he noticed the light on in a small hallway off the main hallway leading to the pastor’s room and the door to that room slightly ajar. Father Todd stated that he thought this was unusual, for the reason that the small hallway light is seldom, if ever, left on, but that he continued to his own room where he changed clothes. On his return he noticed the hallway light was off and that the door to the pastor’s room was still ajar. He became curious, pushed the door open and found a man, whom he later identified as defendant, standing in the room with a knife. The man backed Father Todd into the well-lighted main hallway, maintaining a short distance from him and threatening him with the knife. The man fled down the fire escape into an alley while Father Todd went down the front stairs to summon help. In the street Father Todd again had a look at the man as the latter passed out of the alley under' a street light. After pursuing the man a short distance, Father Todd returned to the rectory and called the police. He then returned to the street where he met a motorcycle policeman to whom he gave a description of the man. Another description was given later that evening to the officers who investigated the incident in response to Father Todd’s telephone call. A search was made, and it was discovered that collection envelopes had been torn open and some $1,200 in collection money stolen from the pastor’s room, as well as a small amount of money stolen from Father Todd’s room.

On January 10th, Father Todd, in the presence of Detective Stanley Zyskowski, viewed photographs and identified the defendant as the burglar. The following day, Father Todd picked defendant out of a lineup at police headquarters and gave a formal statement in defendant’s presence that defendant was the burglar.

Defendant filed a pretrial motion to examine his police record file in order to determine whether the descriptions given to either of the first two police officers by Father Todd had been reduced to writing. The motion was denied. The motion was thereafter renewed on two separate occasions during the cross-examination of Father Todd. The court stated that he would examine the police file at a later time to determine if such written descriptions were available, and denied defendant’s motions on the representation of the Assistant State’s Attorney that Father Todd signed only one statement, which had been admitted into evidence. It does not appear that the trial court either inspected the file or determined whether such written descriptions were available.

Detective Zyskowski, the officer assigned to investigate the case, was present when Father Todd examined the photographs and when he picked defendant out of the lineup. On his cross-examination, the detective stated that he originally obtained a description of the burglar from another report. When asked whether he had the latter report in his possession, the detective stated: “This is on another church burglary, in the same reference where the priest was attacked and accosted by George Williams.” Defendant moved to declare a mistrial, the motion was denied, and the court ruled that the detective’s reply be stricken from the record. The detective also testified on redirect examination that he had previously seen defendant “in pictures and his record, his police record.” Again, defendant moved to declare a mistrial, but the motion was denied.

It appears from the record that after two photographs of defendant, bearing the legend “Jackson State Prison,” were shown to Father Todd on direct examination, the Assistant State’s Attorney exhibited them to the jury. The photographs were later allowed to go to the jury, but the legend which had previously appeared thereon was covered over.

The defendant did not take the stand as a witness in his own behalf.

Defendant advances three grounds on this appeal for reversal, namely, that the trial court erred in refusing defendant’s motions for access to the police file, that the trial court improperly denied his motions for a mistrial after Detective Zyskowski testified to the other unrelated burglary charge and to defendant’s prior police record, and that defendant was prejudiced by the actions of the Assistant State’s Attorney in exhibiting defendant’s prior prison photographs to the jury bearing the legend “Jackson State Prison.” A fourth point was raised in defendant’s brief, that the indictment was fatally defective in that it lacked allegations relating to the place of the offense and the statutory provisions allegedly violated, but this ground was waived in oral argument by reason of recent Supreme and Appellate Court decisions. We agree with the grounds advanced by defendant for reversal.

It is well settled that the defendant has the right to make a demand upon the State for the production of statements which are in the State’s possession. People v. Wolff, 19 Ill2d 318, 167 NE2d 197. If the prosecution claims the statement is privileged, irrelevant or incompetent, it is the duty of the trial court to examine the statement to determine whether such claims are justified. If the statement is relevant, competent and not privileged, the court must order the statement to be delivered to the defendant, who alone is qualified to determine whether it has value for impeachment purposes. People v. Wolff, 19 Ill2d 318, 167 NE 2d 197; People v. Beard, 67 Ill App2d 83, 89, 214 NE 2d 577. Defendant here requested the description statements from the police file for the purpose of determining whether they contained matters inconsistent with the description given later by Father Todd, the sole identification witness. It was then the duty of the trial court to examine the file to determine whether such statements existed; if such statements were in existence the trial court should have delivered them to defendant for his determination whether they had value for impeachment purposes. People v. Wolff, 19 Ill2d 318, 167 NE2d 197. However, the trial court in no way indicated whether such writings existed and it was therefore error to deny defendant’s motions at that time. The State maintains that defendant’s motion was untimely for the reason that it was made before trial. However, the motion was renewed twice on cross-examination of Father Todd and was therefore timely made. See People v. Wolff, 19 Ill2d 318, 167 NE2d 197. The State further maintains that the statements must be signed in order to be used for impeachment purposes. This position also appears to be the basis of the trial court’s ruling on the motions. However, if a statement is desired to be used for impeachment, it is not necessary that it be signed, but should be in the witness’ own words or substantially verbatim. People v. Jolliff, 31 Ill2d 462, 466, 202 NE2d 506; People v. Neiman, 30 Ill2d 393, 397, 197 NE2d 8.

Defendant further contends that the trial court erred in failing to declare a mistrial due to the testimony of Detective Zyskowski concerning defendant’s prior criminal and police records. It is well settled that the only use which can be made of a prior criminal record at trial is for the purpose of affecting the credibility of the witness and must be brought out by a properly authenticated record of the conviction. People v. Flynn, 8 Ill2d 116, 121, 133 NE2d 257. Defendant here did not take the witness stand and therefore the statements of the police officer were clearly prejudicial. Their only effect was to convey to the jury the impression that the defendant had criminal tendencies and was likely to commit a crime such as that for which he was being tried. People v. Polenik, 407 Ill 337, 345, 95 NE2d 414. See also People v. Bennett, 413 Ill 601, 605, 110 NE 2d 175, and People v. Schultz, 260 Ill 35, 42, 102 NE 1045. The statements of the detective were clearly without evidentiary value and served only to prejudice the defendant in the eyes of the jury.

The final point raised by defendant concerns the photographs which were exhibited to the jury bearing the legend “Jackson State Prison.” The legend served to show that defendant was convicted of a crime in the past, and therefore could be used only to affect his credibility as a witness. People v. Lewis, 25 Ill2d 396, 400, 185 NE2d 168; People v. Polenik, 407 Ill 337, 95 NE 2d 414. Defendant, however, did not take the witness stand, and the legend on the photographs again served only to prejudice defendant in the eyes of the jury.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

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


text:
    People of the State of Illinois, Appellee, v. Robert L. Haywood, Appellant.
    Gen. No. 50,464.
    First District, Second Division.
    June 21, 1966.
    Frank J. Merrill, of Chicago, 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. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is a writ of error to the Criminal Court of Cook County. The defendant, Robert Haywood, was found guilty and indicted under 62-928 which consisted of one count for robbery, one for rape and one for deviate sexual assault. The defendant pleaded not guilty and waived trial by jury. He was tried by the court and found guilty on all counts.

The defendant was convicted by testimony which the trier of the facts had a right to find proved his guilt beyond a reasonable doubt. The identification of the complaining witness was positive and testimony that she was raped, robbed and victim of a deviate assault was fully corroborated. These acts were by force and against complainant’s will.

On March 26, 1962, the complainant, June Prichett, who was a teacher in the Chicago public schools, was walking home when she saw the defendant run towards her from across the street. As she approached her home, the defendant walked up to her and with his hand in his pocket exclaimed, “Give me your purse lady. Don’t scream or I’ll kill you.” He took the purse, grabbed her arm and forced her into the basement entrance of a nearby home. She was pushed into a stooping position and forced to commit a deviate sexual act involving her mouth and the sex organ of the defendant. He then pushed her against the stairs and by force and against her will had sexual intercourse with complainant. Defendant then proceeded to take $17 from the purse of complainant and again forced her to engage in another act involving deviate sexual conduct. During the commission of these offenses, defendant continuously remarked that the complainant knew him and that he feared she would tell her husband.

When defendant finally allowed Mrs. Prichett to leave, she immediately ran home and crying hysterically told her mother-in-law of this dreadful experience. The latter testified that the victim’s clothing was very dirty. Her shoes were “very muddy” and her hair was “very much disarranged.” “She was just screaming and crying as she was going upstairs.” Mr. Prichett was notified and quickly came home to find his wife crying and hysterical. Shortly thereafter, the police arrived and took the complainant to the hospital.

At the trial Mrs. Prichett testified that at that time she did not know the man who committed the acts but that when he walked up behind her and took her arm and threatened her as if he had something under his coat, she was terrified and said that she did not want anything else to happen to her, and when he took her in the building and performed the acts of rape and deviate sexual assault that she had ample opportunity to see him and to know that he was the man involved. She also testified that after she and her husband went to the police station before she had seen and identified the defendant as her molester that the defendant approached Mr. Prichett and said “Your wife is accusing me of rape.” This was before Mr. Prichett had indicated in any way he was connected with the case. Mr. Prichett had known the defendant, as he (Mr. Prichett) was a director of Park Activities of Ogden Park and this young man had been at the park several times and had seen Mrs. Prichett and Mr. Prichett, but had not been introduced to her and did not know of her connection with Mr. Prichett. This accounts for his mutterings all the time during the rape “Your husband knows me, doesn’t he?” and “Don’t you know me,” and remarks of that nature which indicates that he was afraid of apprehension. Mr. Prichett later identified the assailant as the same man who had dealt with him at the park and Mrs. Prichett picked him out in a lineup and said that he was the man who committed the acts. This identification of the defendant was made by the complainant and was reaffirmed by picking him from the lineup and was again later reaffirmed from the witness stand and there seems nothing more that she could have done to identify him. He was positively identified.

As to the robbery, there was sufficient evidence of forcible talcing from the complainant because she was in fear for her life or of serious bodily harm at the time the money was taken from her, and subsequent thereto when she was downstairs in the basement of the house. She was under fear of death and that is sufficient to sustain the indictment for robbery.

As to the force necessary for a conviction of rape and deviate sexual attack, she was taken and forced under fear of death to submit to the rape and the deviate sexual attack. She complained immediately after the termination of the attack to her mother-in-law at her home. People v. Scott, 407 Ill 301, 95 NE2d 315 (1950). She ran directly from the scene of the assault to the scene of her mother-in-law’s house and there her mother-in-law testified that she entered and told her of the events that had just happened.

“On review, this court will not disturb a finding of guilt unless it is palpably contrary to the weight of the evidence or is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of a defendant’s guilt.” People v. Litberg, 413 Ill 132, 139, 108 NE2d 468, 471 (1952).

The defendant relies upon testimony of others supposedly supporting his defense of alibi. He produced Bernice Benjamin, who was fifteen years of age and attended Parker High. She left him at 7:30 p. m. near the school grounds. He was with two other girls. He also produced Annie Baliss. She testified that she was his girl friend and that she went with Haywood to the eye doctor’s office with the other girls. About 7:30 p. m. she left him across the street from the playground in the company of the other girls. He produced Mary Holmes. She testified they left the school yard at 7:00 p. m. and played in the street near 70th and Sangamon Streets. At about fifteen minutes before 8:00 p. m. she left Haywood in front of the Walgreen Store at 69th and Halsted Streets. He produced Magnolia Hughes. She gave no time in regard to where he was that night. He produced Lilly Bell Terrell, who testified that she is Robert Haywood’s sister. She testified that at about 9:00 p. m. on March 26, 1962, he came to her house at 5845 S. Union Street. He also produced Deplissi Drew. He testified that although he was uncertain of the exact date, he did remember that Haywood came to his store one night about 8:00 p. m. in the latter part of the month. He came to get a record player which he left there. The events here charged actually took place between 8:00 and 9:00 p. m. on the night in question and this alibi was of not sufficient verity to constitute a good defense and raises a factual conflict which was clearly the province of the judge trying the case to resolve. His actions at the time of the commission of the offenses charged, are not corroborated by the testimony of any of his witnesses. There is a corroboration gap of at least one hour between the time he left the girls and arrived at his sister’s house, and this gap is the exact period of time in which the offenses occurred. This does not constitute an alibi.

“The jury saw and heard the witnesses as to identification and as to the alibi, and it was for it to determine the weight to be given to the testimony. (People v. Leach, 398 Ill 515; People v. Bloom, 370 Ill 144.) Although the identifying witnesses did not observe the intruder under highly favorable conditions and there was evidence of an alibi, this does not, in the face of positive identification, require a reversal, and the identification, being certain and credible, is sufficient to sustain the verdict. People v. Auriene, 361 Ill 440; People v. Gasior, 359 Ill 517." People v. Maffioli, 406 Ill 315, 322, 94 NE2d 191 (1950). See also People v. Thomas, 409 Ill 473, 478, 100 NE2d 588; People v. Mero, 4 Ill2d 327, 336, 122 NE2d 796.

We therefore affirm the decision of the Judge in the lower court and find that the judgments on Indictment 62-928, finding the defendant guilty on Count No. 1, where he was sentenced to the Hlinois State Penitentiary for an indeterminate sentence of three to six years for robbery; the decision under Count No. 2 of the same indictment, where he received an indeterminate sentence of ten to twenty years for rape; and of Count No. 3, where he received an indeterminate sentence of five to ten years for deviate sexual assault, with all sentences running concurrently, were a proper disposition of the case.

Judgment affirmed.

LYONS and BURKE, JJ., concur.