text:
    William T. Kirby, as Trustee Under Trust Agreement Dated November 1, 1965, and Known as Trust No. 1 and Harold E. Sullivan, Plaintiffs-Appellees, v. Kathryn H. Carlstedt, Defendant-Appellant.
    Gen. No. 51,696.
    First District, First Division.
    July 22, 1968.

      McDermott, Will and Emery, of Chicago (Hamilton Smith and Frank J. Uvena, of counsel), for appellant.
    Hubachek, Kelly, Miller, Rauch & Kirby, of Chicago (James T. Griffin, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from a judgment on a verdict directed by the trial court in favor of the plaintiffs, for the sum of $8,700 and costs of the suit. The parties involved negotiated for the purchase of plaintiff’s (Sullivan) house and after the terms were agreed upon a written form of agreement was prepared. It was signed by the record owner as trustee; Sullivan, one of the beneficial owners; and Kathryn H. Carlstedt, the purchaser. It provided inter alia that “the purchaser has deposited $8,700.00 as earnest money with the Chicago Title and Trust Company as escrowee, pursuant to the terms of the escrow agreement hereinafter mentioned . . . (and) ... in case purchaser shall be in default under the terms hereof and such default shall continue for a period of ten days after notice by sellers to purchaser and said escrowee, sellers may terminate this contract, in which event the earnest money shall be paid to sellers as liquidated damages. . . .”

The parties were to meet at the office of the escrowee on June 12, 1961, at 10:30 a. m. Defendant’s attorney, John Munro, learned that the hour of 10:30 a. m. was inconvenient to the escrowee and changed it to 9:15 a. m. He telephoned Sullivan and advised his secretary of the change. Sullivan was not told of the change and did not appear until 10:30 a. m. In the meantime, John Munro appeared at 9:15 a. m. and later went to his office. Sullivan then arranged for an appointment for the following morning at 10:00 a. m.

On June 13, 1961, at about 8:00 a. m, the defendant’s husband, Fred Carlstedt, came to the Sullivan home and told Mr. and Mrs. Sullivan that Mrs. Carlstedt was very upset and wanted to withdraw her offer to buy the house. Carlstedt later testified:

“And then I said, ‘You have been to some trouble. I’ll give you $500 for your trouble.’ And he said to me, he says, T don’t want your $500. I got all the money that I’ll ever need. I don’t care to deal with your kind of people. If your wife doesn’t want the house, that’s all right with me, and you can tell her there’s no deal.’ ”

Sullivan denied this. He testified as follows:

“Well, I was having breakfast at my home about 7:20 in the morning or maybe 7:30 and he (Carlstedt) appeared at the door and I invited him in and he told me that there was some disagreement in the family and, therefore, he wasn’t going through with the deal, very nervous about it. Well, I said, ‘I’m sorry to hear it. As far as I am concerned you are going through with the deal,’ and then he offered me $500 to call the matter off. I said, ‘No I am not interested. I will see you in court.’ ”

The sellers filed suit for damages of $8,700 pursuant to the above mentioned written document. The defendant answered denying that there is or ever was a contract between her and the plaintiffs, or either of them. Subsequently, defendant filed a first amendment to her answer stating that:

“Defendant is informed, believes, and therefore, alleges in the alternative, that if a contract was consummated as alleged in the complaint, that contract was rescinded by the mutual agreement of the parties on June 13,1961.”

The plaintiffs replied denying the allegations and legal conclusions pleaded by the defendant and answered further that if the contract was rescinded then the agreement to rescind was a contract and was barred by the Statute of Frauds. Chapter 59 of Ill Rev Stats, § 2.

At the close of all the evidence plaintiffs moved for a directed verdict which the trial judge granted and directed the jury to return a verdict in favor of the plaintiffs and assess the damage in the sum of $8,700.

On Appeal, defendant contends:

(1) That there was no contract and defendant had the right to withdraw her offer;

(2) That the questions of plaintiffs’ acceptance of defendant’s offer and whether the contract, if any, was mutually rescinded, should have been submitted to the jury;

(3) That there was a lack of proof of actual damages to the plaintiff; and

(4) That the trial court should have permitted defendant to offer evidence of Sullivan’s prior conviction.

Defendant claims that the trial court should have submitted to the jury the question of whether or not Sullivan manifested his acceptance of Mrs. Carlstedt’s (defendant) offer and the question whether the contract, if any, was mutually rescinded. There is some doubt whether Sullivan did sign the agreement on June 12, 1961. He testified at the trial that he signed the document on the morning of June 12, 1961. He also testified that he called John Munro and told him the contract had been executed by all the parties. At a deposition, taken on February 2, 1962, Sullivan was asked: “Did you tell him (Munro) at that time that you talked to him? Did you tell him that you had signed the Defendant’s Exhibit No. 1 (agreement for the sale of Sullivan’s property dated June 12, 1961) . . . ?” He answered: “I don’t know whether I did, whether I had signed it or not. I just assumed that he knew I signed it.”

Defendant also maintains that the parties understood that there would be no contract until the closing at the Title Company. Since there was no closing, there was no contract, and the defendant has the right to withdraw her offer. The agreement recited that the purchaser had deposited $8,700 as earnest money with the Title Company as escrowee. No such deposit was made. A certified check for $8,700 payable to the Chicago Title and Trust Company was given by the defendant to Mr. Munro, her attorney. Neither this check, nor any other check was deposited by him or anyone else with the Title Company. The defendant further maintains that the opening of the escrow and the deposit of the earnest money were conditions precedent to the agreement becoming effective as a binding contract. The plaintiffs claim on appeal that the defendant is precluded by parol evidence rule from showing that they were conditions precedent.

At the trial, counsel for the defendant asked the plaintiff whether he said, “When I get the papers, if the papers are acceptable to me, we will meet over at the Chicago Title and Trust Company and close the deal and open the escrow.” The trial judge sustained his own objection to that question.

Plaintiffs further maintain that this Court held in National Bank & Trust Co. of South Bend v. Becker, 38 Ill App2d 307, 187 NE2d 355 (1962) and in Chicago Title & Trust Co. v. Cohen, 284 Ill App 181, 196, 1 NE2d 717 (1936), that if the supposed “condition” sought to be shown violates the terms of the writing, parol evidence of the supposed “condition” is inadmissible. In Becker the court refused to allow testimony to modify an unconditional written obligation. In Cohen, an attempt was made to permit an unconditional obligation to guarantee to be converted into an obligation to guarantee only if someone else also guaranteed. These decisions do not apply to a situation in the instant case where no attempt was made to change the terms of the written agreement. When the instant agreement was signed, it was not complete because something remained to be done.

Plaintiffs’ argument that an oral agreement to rescind a real estate contract is unenforceable by reason of the statute of frauds, is improper. The Statute of Frauds (Ill Rev Stats 1965, c 59, § 2) provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith. . . .”

In Voris v. McIver, 339 Ill 340, 348, 171 NE 263 (1930), the court held that a real estate contract could be rescinded orally. There appears to be little question in the instant case as to Sullivan’s actual authority to rescind. He handled all the negotiations. He negotiated the price, approved the form of agreement and agreed to meet at the Title Company to close the deal. He controlled the selling, acting for the beneficiaries and the trustee. Certainly the question whether he had such authority should have been submitted to the jury.

It was error for the trial judge to deny the defendant the opportunity to introduce evidence that the opening of the escrow and the deposit of the earnest money were conditions precedent. The defendant did not seek to put conditions in the agreement. She sought to prove that the opening of escrow and the deposit of the earnest money were conditions precedent to the obligation stated in the agreement and were binding upon the parties.

As set forth above, Sullivan and Carlstedt told directly conflicting stories of their conversation on June 13, 1961. This created a clear question of fact for the jury as to whether there was or was not an oral agreement to rescind the contract to purchase Sullivan’s home. It was therefore error for the trial court to direct a verdict for the plaintiffs.

It is unnecessary for us to consider the other questions raised by the appellant. The judgment of the trial court is reversed and this cause remanded for a new trial.

Judgment reversed and remanded.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Avanella M. Vail, Plaintiff-Appellee, v. William F. Vail, Defendant-Appellant.
    Gen. No. 51,702. (Abstract of Decision.)
    First District, Third Division.
    June 27,1968.

      Muench & Muench, of Chicago (James J. Muench, of counsel), for appellant; S. Edward Moffic, of Chicago, for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    Tony Hammer, for the Use of Martha Hammer, and for the Use of James Hammer, Michael Hammer, Darlene Hammer and Sherman Hammer, All Minors, by Their Mother and Next Friend, Martha Hammer, Plaintiffs-Appellees, v. Evelyn Plontke, d/b/a Stone Gate Lounge, and Peter Roto, Defendants-Appellants.
    Gen. No. 51,744.
    First District, Fourth Division.
    July 10,1968.
    Rago, Kiely & Kages, and Richard D. Cronin, of Chicago (Jones & Clark, Vincent M. Clark, of counsel), for appellants.

      HoIIobow, Warren & Taslitz, of Chicago (Erwin Grombacher and Richard HoIIobow, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff filed this action on May 13, 1960, to recover for the use of his family the loss suffered to their means of support resulting from injuries he sustained in an automobile accident on June 17, 1959. The accident was caused by plaintiff’s intoxication. Defendant was the tavern owner, whose liability was predicated on the Dram Shop Act. Ill Rev Stats (1959), c 43, § 135. The jury returned a verdict of $20,000 upon which judgment was entered.

Defendant appeals, but raises no question on the issue of liability. He does contend, however, that he was prejudiced on the issue of damages because an evidence deposition of Dr. Clarence Boyd, a neuropsychiatrist, was incompetent and should not have been read to the jury. The deposition, which concerned three separate examinations of plaintiff by Dr. Boyd, included the medical history as related to the doctor by plaintiff and the results of certain tests under plaintiff’s control. The first examination took place on December 27, 1962, at the request of the Federal Disability Program, to determine if plaintiff was entitled to certain disability benefits under the Social Security Act. On June 9, 1964, Dr. Boyd examined plaintiff for the Veterans Administration. Finally, on March 25, 1966, he examined plaintiff in preparation for the deposition in question. Defendant argues that a physician who examines a patient for a purpose other than treatment is precluded from testifying about the patient’s subjective complaints by reason of the rule excluding hearsay evidence.

However, the point has not been properly preserved for review. Defendant’s post-trial motion, which was denied, did not specify the incompetency of the evidence deposition, or any part of it. Section 68.1(2) of the Practice Act provides:

. . . The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, .... A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.

Ill Rev Stats (1965), c 110, § 68.1(2). Defendant’s point, newly raised in this court, must be treated as having been waived for purposes of appeal, and may therefore not be considered here. Perez v. Baltimore & O. R. Co., 24 Ill App2d 204, 164 NE2d 209; Handler v. Eckhouse, 45 Ill App2d 382, 195 NE2d 838. County Board of School Trustees v. Batchelder, 7 Ill2d 178, 130 NE2d 175. This waiver rule is based on the sound policy of affording a trial judge the opportunity to reconsider and correct his rulings or otherwise take such action as may be indicated prior to appeal.

It is also sound policy to require timely objections in order to give a party the opportunity to remedy or obviate the basis for objection pertaining to the competency of a deponent or the admissibility of testimony at the time of the taking of a deposition. This policy is expressed in Supreme Court Rule 19-9 (3) (a):

Grounds of objection to the competency of the deponent or admissibility of testimony which might have been corrected if presented during the taking of the deposition are waived by failure to make them at that time; otherwise objections to the competency of the deponent or admissibility of testimony may be made when the testimony is offered in evidence.

Ill Rev Stats (1965), c 110, § 101.19-9(3) (a); cf. Supreme Court Rule 211(c)(1), Ill Rev Stats (1967), c 110A, § 211(c)(1). Defendant made no objections at the time the deposition was taken.

There being no other issue presented for review, the judgment of the Circuit Court is affirmed.

Affirmed.

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

       The grounds for relief urged in the post-trial motion were: (1) there was no evidence to support the verdict; (2) the verdict was contrary to the evidence; (3) the verdict was contrary to the law; and (4) there was no competent evidence adduced that plaintiff became intoxicated by reason of defendant’s conduct. None of these points is argued on appeal.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond Jackson, Defendant-Appellant.
    Gen. No. 51,751.
    First District, Second Division.
    July 16,1968.
    Rehearing denied September 9, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Marshall J. Hartman, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, and Professor James R. Thompson, Northwestern University School of Law, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendant, Raymond Jackson, was convicted in a bench trial for the offense of unlawful possession of a narcotic drug and sentenced by the court to a term of from not less than three (3) nor more than ten (10) years in the State Penitentiary. He appeals from that conviction asserting as his theory: (1) that the State failed to demonstrate sufficient probable cause to justify defendant’s arrest without a warrant, and (2) that the trial court erred by denying defendant’s motion to suppress People’s Exhibit No. 1 (package containing heroin), seized as a consequence of that unlawful arrest.

The facts of the case for the purpose of the questions advanced on appeal are relatively undisputed. The arresting officer, Henry Pates, testified that at approximately 4:00 p. m. on March 4, 1966, he had received certain information pertaining to defendant from a “special employee” whose identity was not disclosed. Police Officer Clifton Martin corroborated the fact that Pates had been so contacted. The scene of their conversation was in the vicinity of Moore and Division Streets in the City of Chicago in close proximity to the area where defendant was later arrested. Pates testified in explicit terms that he had known and dealt with this informer in the past and regarded him to be reliable. The officer explained that he had had eight or more similar past experiences with the same informer and that the information volunteered had culminated in arrests and criminal convictions. Pates named a particular case in which a conviction had been obtained following an arrest prompted by the informer’s tip.

At this juncture in the State’s case, however, an anomalous situation presented itself. As a timesaving factor and to avoid a separate pretrial hearing, counsel for defendant had reserved his motion to suppress People’s Exhibit No. 1, (the small brown package containing heroin) for presentation during the actual trial of the cause. Thereafter, counsel lodged successful hearsay objections to the various attempts by the prosecution to have Officer Pates testify as to the substance of his conversation with the “special employee.” The officer was permitted to continue, being limited in his testimony however only as to the manner in which he subsequently conducted himself based upon the information furnished. This procedure, in turn, created a void in the evidence of which defendant now complains. He, in fact, concedes on review that his objections below were erroneously sustained, citing the case of People v. Beattie, 31 Ill2d 257, 201 NE2d 396 (1964).

It appears that Pates and Martin, in the company of two other policemen, proceeded immediately after the conversation, by automobile, to the vicinity of 1300 North Sedgwick Street where they observed defendant, in open view, from a distance of 10 to 12 feet, walking alone toward the south on the sidewalk. The time was 4:15 p. m. the same afternoon. Pates stated in this regard that he had known of his suspect’s identity and was able to recognize him on sight because of his communication with the informer and previous personal contact with defendant during a narcotics investigation a month earlier.

The police vehicle pulled to the side upon spotting defendant. Separated by a string of parked cars, Pates emerged and called out to defendant by his known nickname, “Goo Goo.” Martin simultaneously disembarking from the car exclaimed to defendant, “Police Officers, you are under arrest.” Thereupon, defendant hesitated momentarily, dropped or threw a small brown package to the sidewalk (which the officers had not theretofore detected as being in his possession), turned about and ran north into a nearby tavern at 1307 North Sedgwick. It was at this point that defendant was overtaken and placed in custody by Officer Pates for unlawful possession of narcotics; i. e., heroin (which Pates stated he expected to find).

Assisting in the pursuit of defendant, Martin stopped to retrieve the discarded package, then continued to the tavern to help restrain the suspect. His subsequent field test at the scene yielded positive indications of a narcotic. The package was later turned over to the Police Crime Laboratory for examination, the defendant stipulating in the lower court that the chemical analysis proved the contents to be that of heroin. The package and its contents (People’s Exhibit No. 1) were thereinafter admitted into evidence over defendant’s previously noted motion to suppress.

The errors assigned by defendant to the lower court proceedings are respectively contingent upon the existence or lack of probable cause for his arrest. Statutory authorization is provided in this regard by our Code of Criminal Procedure which states in succinct terms:

“A peace officer may arrest a person when: . . . (c) He has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill Rev Stats (1965), c 38, par 107-2.)

This same element of probable cause is one of constitutional dimension which must be adequately demonstrated from the attending circumstances of the case as reasonably existing in the mind of the arresting officer at the moment his arrest of the accused is effectuated. Beck v. Ohio, 379 US 89 (1964). Having carefully considered the record of the instant case, we think the factual circumstance capably sustains the finding of the lower court upholding the validity of defendant’s arrest and admitting into evidence the narcotics observed to have been in his possession.

We do not understand defendant, by his theories on appeal, to challenge the past reliability of the informer. Rather, he endeavors to refute any justification for the trial court’s finding of probable cause where, as here, the record is silent as to the substance of the information acted upon by the arresting officers and hence remains devoid of a basis upon which to formulate a judgment in that regard.

It is first apparent that this portion of the State’s evidence was erroneously omitted by the trial court as a consequence of defendant’s own objections for which he now complains. People v. McCray, 33 Ill2d 66, 210 NE2d 161 (1965), affd, 386 US 300 (1967); People v. Beattie, 31 Ill2d 257, 201 NE2d 396 (1964). This, in itself, raises a serious doubt as to the propriety of the theory he now brings on appeal. Defendant’s entire line of argument directed at the absence of testimony to evidence the grounds for a reasonable belief is furthermore, in the final analysis, extraneous to the decisive issue in the case. Contrary to the premise upon which that contention is advanced, the testimony available to the court to establish the existence of probable cause for his arrest was not necessarily confined to the factual circumstances preceding the initial streetside encounter. It thus appears to our satisfaction that that which does present itself when linked with defendant’s inculpatory conduct upon being verbally confronted sufficed to provide a legitimate basis upon which to found a finding of probable cause independent of the information allegedly supplied by the “special employee.” Defendant purports to signify the fallacy of this reasoning by reference to the exclusionary rule and cases in support thereof. It is his position that evidence of his behavior after being confronted by the police cannot operate to provide either the basis of probable cause or substantive evidence of guilt, inasmuch as that conduct was the direct and involuntary product of the unwarranted arrest in the first instance. Representative of that proposition and the cases upon which defendant relies is the case of People v. Roebuck, 25 Ill2d 108, 183 NE2d 166 (1962) involving in all but one most important aspect, a closely similar factual situation. In Roebuck however, only after the accused had been unlawfully arrested on an ordinance violation by means of an actual or physical restraint did he thrust aside a package containing heroin which was seized by the arresting officers and became the object of his motion to suppress.

Unlike this and his other authorities, defendant’s eventual apprehension in the tavern cannot be said to have been the immediate or direct consequence of an arrest and/or search otherwise unlawful in its incipiency. Corroborative testimony offered by the State vividly portrayed that defendant took flight, disposing of the parcel in route after being advised from a distance of 10 to 12 feet that he was under arrest. As was stated in People v. Roebuck, supra, the question of the lawfulness of the arrest is to be determined on the basis of the justification for the arrest at the time it was made, and any subsequent yielded incriminating evidence cannot be permitted to relate back to operate as justification for that arrest.

The question then essentially becomes whether the officers’ pronouncement of an intention to arrest, as presumably understood by defendant, was sufficient to effectuate his arrest within the meaning of the principles enumerated in Roebuck. An arrest, in the sense we are concerned with here, requires a purpose or intention to effect an arrest under a real or pretended authority, an actual or constructive seizure or detention of the person to be arrested by one having the present power to control him, a communication by the arresting officer of his intention to arrest, and an understanding by the person to be arrested that such is the intention of the arresting officer. See 4 Words and Phrases, Arrest, p 234 et seq., 5 Am Jur2d, Arrest, § 1. For our limited purposes in the case at bar, we need only be concerned with the dispute over the restraint or seizure of the person of defendant.

In People v. Mirbelle, 276 Ill App 533 (1934), an almost identical situation was resolved. There, two police officers observed defendant from a distance in the vicinity of a recent suspected holdup. With drawn guns, one officer shouted, “Stick them up, we are police officers, stick them up.” Responding, defendant raised his arms above his head enabling the police to observe his possession of a revolver protruding from beneath his waistline. Defendant was convicted for carrying a concealed weapon and appealed raising the contention that the evidence of his possession of the gun was produced as an incident of an unlawful arrest. The Mirbelle court, while noting that an actual physical touching of the person was not essential to constitute an arrest, stated:

“The custody or control, the assumption of which is involved in an arrest, imports actual restraint or detention, the mere utterance of words indicative of an arrest being insufficient, except perhaps when followed by submission.”

The rule of Mirbelle, we might add, is substantially reflected by our present statutes on the subject whereby a requirement of some physical restraint or custody is included; i. e.,

“ ‘Arrest’ means the taking of a person into custody.” (Ill Rev Stats (1965) c 38, par 102-5.)

“An arrest is made by an actual restraint of the person or by his submission to custody.” (Ill Rev Stats (1965) c 38, par 107-5 (a).)

Here, when Officer Martin proclaimed the intentions of the police to make an arrest of defendant, the principals were partially separated by a string of parked cars and at a distance of 10 to 12 feet from one another. Defendant was then at liberty on an unenclosed public sidewalk, and by his flight foreclosed upon any notion that he may have covertly submitted to the authority of the police. It appears that mere naked words of intention were communicated and no effective restraint concomitant with the proclamation, even in a constructive manner, was achieved until the eventual confrontation removed in both points of time and place from the initial encounter. Nowhere does it appear that the police had brandished weapons.

By his resisting efforts, defendant had thus remained free from the power of control intended to be exercised by the authorities, without which element he cannot be heard to submit that his arrest had been made. United States v. Washington, 249 F Supp 40 (DCDC, 1965); Smith v. State, 153 Tex Crim 230, 219 SW2d 454 (1949). Accordingly, as it pertains to the court’s finding of probable cause, these evidentiary considerations of flight and disposition of the small parcel were not produced by an arrest, and hence properly apply themselves at the moment of actual arrest in the tavern, together with all that had preceded to show the knowledge possessed by Officer Pates, as sufficient to support a reasonable belief that defendant was committing or had committed an offense.

Defendant cites People v. Pruitt, 79 Ill App2d 209, 223 NE2d 537 (1967), arguing that Officer Martin’s exclamatory remark sufficed to impose that element of restraint needed to effect his arrest. We, however, do not interpret Pruitt to stand for that proposition. The question is essentially one to be resolved on an ad hoc basis. In Pruitt, unlike the instant case, two police investigators confronted the defendants face to face at close quarters within the physical confines of a church anteroom. The defendants were informed that they were suspected of the recent theft in the church and were requested to accompany the police to headquarters. Significantly, only after the defendants had submitted to the authority and control of the police without a show of outward resistance did the assailed search of their persons transpire. Such is not the instance now before us.

Defendant submits that by the decisions in Wong Sun v. United States, 371 US 471 (1963) and Commonwealth of Massachusetts v. Painten, 368 F2d 142 (1st Cir, 1966), any inculpatory conduct provoked by police action in itself unsupported by probable cause must be excluded in determining the lawfulness of the arrest. In Wong Sun, narcotics agents acted on information supplied by a person under arrest who was not an informer of known reliability. The tip openly invited the officers to comb 30 city blocks in search of one “Blackie” Toy. By happenstance, the agents entered a laundry which bore the uninformative sign “Oye’s.” There was otherwise no intimation of record nor information disclosed from any source whereby the agents would have had reason to associate “Blackie” Toy with James Wah Toy, the proprietor, who fled upon being informed of the agents’ identity.

In Painten, the defendant discarded a bag containing two guns when a police officer announced his presence at his apartment door. There, however, while the police thought defendant to be a suspicious character, they otherwise had no reason to connect him to the armed robbery under investigation. Here, the record discloses that Officer Pates knew and considered the informer to be reliable. Pates knew defendant on sight, proceeding immediately to a delimited and neighboring street on the basis of a conversation involving defendant expecting to find him in possession of heroin. For the purposes of distinguishing Wong Sun and Painten, we cannot say that this action was contrived by a vague suspicion.

As his behavior related to substantive evidence of guilt, defendant next contends that the police seizure of People’s Exhibit No. 1 cannot be properly divorced from the legitimacy of his arrest simply because that arrest, in its technical sense, may have followed his disposition of the package containing heroin. Again, defendant’s authorities are inappropriately taken as there had been no actual arrest, hence no search incidental to an arrest from which an illegal invasion might be inferred.

Unlike the cases he cites, defendant voluntarily thrust aside and abandoned the package in the plain and open view of the officers under the suspicious circumstances of flight to avoid arrest. There had as of this moment, not been any opportunity by the officers to physically confront, investigate and search defendant. The parcel thrown aside came to rest upon the public sidewalk again within the full view of the police. It is thus apparent from the facts that no search by a prying into or invasion of the privacy of defendant’s person or property became necessary to effect a seizure of the narcotics and thereby raise issue as to the reasonableness of that conduct. People v. Davis, 33 Ill2d 134, 210 NE2d 530 (1965); People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964). Accordingly, it is our opinion that defendant’s arrest was independently supported by probable cause, and that the court below properly denied his motion to suppress People’s Exhibit No. 1.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and MCNAMARA, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Appellee, v. Matthew Mills, Appellant.
    Gen. No. 51,759.
    First District, First Division.
    July 22,1968.

      Sam Adam, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Matthew Mills, was indicted on the charge of knowingly possessing heroin in violation of chapter 38, section 22-3 of the Illinois Revised Statutes (1963). The cause was submitted to the trial court after the defendant had waived a jury trial. The trial judge found the defendant guilty as charged, and having denied defendant’s motions for a new trial and in arrest of judgment, sentenced the defendant to the Illinois State Penitentiary for a term of not less than three (3) and not more than eight (8) years. The defendant appeals from the judgment entered on the finding of guilty.

The defendant, seeking a reversal of the judgment entered, contends on appeal: (1) that there was no probable cause for his arrest, and (2) that he was not proved guilty of the offense charged beyond a reasonable doubt.

Prior to trial, a hearing was conducted on defendant’s written motion to suppress evidence. At this pretrial session, Police Officer George Barzydlo testified that prior to commencing his patrol activities on December 12, 1965, he and his partner, Robert Finger, had been told by their supervising sergeant to be on the lookout for a particular kind of criminal activity. Barzydlo further testified that this activity involved a large number of cabdriver robberies. “The person who was committing these cab robberies was following a pattern of taking a cab from 50th and State to 39th and State where he held up the cabdriver; this same person would take a cab back south, either on Wabash or Michigan, and also hold up the cabdriver when he reached the 5000 area.” At about 8:15 p. m., on December 12th, Barzydlo received a message over his police car radio to proceed to 43rd and Wabash where a cabdriver had been robbed. When Barzydlo and his partner arrived at the scene of the crime the victim gave them a general description of his assailant, “The description was that of a male Negro about 30 to 40 years old, between 5-9 and 5-11, 145 to 165 pounds, medium complexion and wearing a dark hat and a dark coat.” Shortly thereafter, Barzydlo received the same description of the robber over his radio. Barzydlo and Finger then began to “tour” the area in which the robbery had taken place.

At about 8:25 p. m. the two officers observed a yellow cab proceeding southward on South Parkway at 41st Street. Officer Barzydlo concluded that the passenger in the back seat of the cab, who turned out to be the defendant, matched the description he had previously been given in that “the person appeared to me to be between 5-10 and 6 foot, of medium build and was wearing dark clothes.” Barzydlo activated the blue light on the top of the police car and the cab immediately pulled over to the side of the road. While the cab was pulling over, Barzydlo turned the car’s spotlight to the back window of the cab. According to Barzydlo, the defendant then raised his body up and made a “twisting motion” over to the right side of the cab’s rear seat where he slumped down. The police car pulled up about ten feet behind the cab, and the officers ordered the driver and the defendant to get out. The defendant was searched, and nothing of an incriminating nature was found on his person. Officer Barzydlo then proceeded to search the taxi where he found a plastic pouch containing a white powder, said pouch being the object of defendant’s motion to suppress.

Upon the conclusion of Barzydlo’s testimony, and after hearing argument from respective counsel, the trial judge stated that under the totality of the circumstances the officers had possessed probable cause for their arrest of the defendant and their subsequent search of the taxicab. Therefore, he denied defendant’s motion to suppress the pouch that had been found in the rear of the cab.

At the trial, Officer Barzydlo repeated in substance the testimony he had previously given at the pretrial hearing on defendant’s motion to suppress. He further testified that he had found the pouch (which was stipulated by the parties to contain heroin) wedged down at the extreme right side of the rear seat of the taxicab, at a spot adjacent to where the defendant had slumped down when the police car’s spotlight had been directed into the cab.

Lee Porter, the driver of the cab in question, a witness called on behalf of the State, testified that he had no knowledge concerning the heroin found in his cab. He further testified that he had five or six fares on the evening of December 12th prior to his being hailed by the defendant, and that some of these fares had included more than single passengers.

The defendant contends that the police officers did not have probable cause to arrest him; in other words, he contends that the officers could not have reasonably believed that he had committed the robbery of the yellow cabdriver. He argues, “Not a single fact (as distinguished from mere suspicion) can be pointed out in this record connecting the defendant with the alleged robbery of the cab.”

Initially, we agree with the defendant that the standards to be applied in determining whether probable cause exists for an arrest when, as in the case at bar, the arresting officers have not procured a warrant, are no less stringent than where an arrest warrant is obtained. Wong Sun v. United States, 371 US 471. We also agree with him that an arrest made without a warrant on the basis of mere suspicion is invalid. Henry v. United States, 361 US 98. However, to sustain an arrest it is not necessary that the officer be cognizant of evidence sufficient to sustain a conviction. People v. Fiorito, 19 Ill2d 246, 166 NE2d 606. “Probable cause for arrest exists when the facts and circumstances within the arresting officer’s knowledge, and of which he had reasonable and trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed, and that the person arrested is guilty.” People v. Peak, 29 Ill2d 343, at page 348, 194 NE2d 322. What constitutes the reasonable grounds on which probable cause is based depends on the surrounding facts and circumstances of each individual case. People v. Scalisi, 324 Ill 131, 154 NE 715.

The basic question, therefore, presented to us on review, is whether the finding of the trial judge that under the facts and circumstances the officers had probable cause to arrest the defendant, was justified in light of the evidence presented at the hearing on defendant’s motion to suppress. The actions of a policeman in making an arrest are to be judged by the factual considerations of everyday life; and any assessment of the reasonableness of an arresting officer’s conduct should take into consideration the responsibility of the police to prevent crime and to apprehend criminals along with the fact that they often must act on a quick appraisal of the data before them. Brinegar v. United States, 338 US 160; People v. Watkins, 19 Ill2d 11, 166 NE2d 433.

The police, in the case at bar, were faced with a series of cabdriver robberies that followed a recurring pattern. Officers Barzydlo and Finger were called upon to investigate the latest robbery in the series. The defendant, who fitted the general description which the police had received of the robber, was spotted by the two officers riding in a cab in the area in which the robberies had been taking place. Furthermore, the police came upon him within ten minutes after the latest robbery had taken place in an area a short distance from the scene of the crime. Viewing the totality of facts and circumstances known to the officers at the time of the arrest, we have concluded that they had reasonable grounds to believe that the defendant had committed the cabdriver robbery which they were investigating; and, therefore, the finding of the trial judge that the officers had probable cause to arrest the defendant was justified.

The defendant contends that the description the officers received of the robber would have fit “thousands of persons,” and for this reason the arrest was not based upon probable cause, but on mere suspicion. We cannot agree with this contention. A general description, when it is supported by other relevant facts and circumstances known to the arresting officers (as in the instant case), is sufficient to provide the probable cause necessary to justify an arrest. People v. Scott, 68 Ill App2d 106, 215 NE2d 452. In support of his contention the defendant relies primarily upon Gatlin v. United States, 326 F2d 666 (DC Cir, 1963). However, the facts and circumstances of Gatlin are significantly different from those in the case at bar. In Gatlin, following the robbery of a restaurant, a “general description of three colored males” was broadcast to the arresting officer. Forty-five minutes after he received the first description of the robbers the arresting officer was told by a cabdriver that “a suspicious acting person” had just fled from his cab. The officer proceeded to search the area for this person. Approximately one hour and forty minutes after the original description had been radioed, the officer came upon the defendant at a spot approximately a mile and a half from the scene of the crime and arrested him. No other facts and circumstances having been introduced to justify the arrest, the court held that there was no probable cause for the defendant’s arrest.

In Gatlin it is apparent that the defendant was arrested only on the basis of a general description. In the instant case, however, additional facts and circumstances were known to the arresting officers besides the general description they had received. The defendant, in the case at bar, was arrested in close proximity to the scene of the crime shortly after it had been committed; in addition, his presence in a taxicab in an area where a series of related cabdriver robberies had been taking place provided the police with further proof that the defendant was the culprit they were seeking. We conclude, therefore, that Gatlin is factually inapposite to the case at bar.

The defendant’s final contention is that he was not proved guilty of the crime charged beyond a reasonable doubt. He argues that the State did not prove that he knowingly possessed the heroin found in the cab. A conviction for the crime of the unlawful possession of narcotics can only be sustained on appeal if the State has established at trial that the defendant knew of the presence of the narcotics and that the narcotics were in his immediate and exclusive control. However, knowledge and possession are both susceptible to proof by circumstantial evidence. People v. Mack, 12 Ill2d 151, 145 NE2d 609; People v. Richardson, 21 Ill2d 435, 172 NE2d 801. Although circumstantial evidence must not give rise to any reasonable hypothesis consistent with the innocence of the party accused, this does not mean that the trier of fact must search out potential explanations compatible with innocence. People v. Huff, 29 Ill2d 315, 194 NE2d 230. Circumstantial evidence is legal evidence, and a conviction may be sustained on it alone if the character of said evidence convinces the trier of fact of the defendant’s guilt beyond a reasonable doubt. People v. Colby, 27 Ill2d 273, 189 NE2d 317.

The finding of guilty by the trial judge in the instant case was justified by the evidence introduced by the State. After he was conscious of the presence of the police, the defendant made a “twisting” motion to the right side of the cab’s passenger seat; and the heroin was found by the police under that part of the rear seat towards which they had seen the defendant move. The trier of fact could reasonably have inferred from the defendant’s behavior that he was in possession of the heroin at the time the police spotlight was directed into the cab’s rear seat, and in an effort to avoid detection, the defendant made a sudden movement to hide the evidence of his guilt. The fact that the defendant hid the heroin when the police approached strongly suggests that he knew what it was. People v. Pigrenet, 26 Ill2d 224,186 NE2d 306.

The defendant argues that “it is at least just as reasonable to believe that the heroin belonged to a previous passenger as to the appellant.” As we have previously pointed out, the trier of fact could have inferred that the defendant, in an effort to escape arrest, had placed the narcotic substance under the cab’s seat. We see no reason to interfere with his determination in this regard, for we are convinced that the evidence introduced produced a reasonable and moral certainty that the defendant was guilty of having in his possession the heroin found in the cab. See People v. Bernette, 30 Ill2d 359,197 NE2d 436.

In People v. Jackson, 23 Ill2d 360, 178 NE2d 320, cited by the defendant, the police entered the defendant’s apartment and the defendant immediately ran to the bathroom and locked herself in. Subsequently, a search of the bathroom disclosed nothing of an incriminating nature, but the defendant’s purse was lying open on the floor. The window in the bathroom opened on an airwell to which several of the other apartments in the building had access. At the bottom of the airwell the police found a package containing heroin. The Illinois Supreme Court reversed the defendant’s conviction for unlawful possession of narcotic drugs, holding that the evidence had not established that the defendant ever had possession of the narcotic drug found at the bottom of the airwell. The salient distinguishing factor between Jackson and the case at bar is that in the instant case possession by the defendant has been established by satisfactory circumstantial evidence, i. e., the defendant’s movements followed by the finding of the heroin in the cab’s back seat. In Jackson, on the other hand, the State failed to establish any connection between the activities of the defendant and the discovery of the narcotics at the bottom of the airwell. Furthermore, in the case at bar, the defendant was in sole possession of the cab’s back seat between the time of his movements and the discovery of the heroin, while in Jackson it was not established that between the time the defendant ran into her bathroom and the finding of the narcotic substance another person couldn’t have thrown the drugs down the airwell.

Likewise, in People v. Evans, 72 Ill App2d 146, 218 NE2d 781, a conviction for the unlawful possession of narcotic drugs was reversed because the State failed to introduce any evidence which tended to connect the defendants with narcotics which were found in the area where they had been sitting. The court in Evans concluded that the facts before it were substantially similar to those involved in the Jackson decision, and therefore, deemed itself bound by the latter opinion. For the reasons previously stated in our discussion of Jackson we conclude that Evans is inapplicable to the instant case.

The judgment of the Criminal Court is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Dorsey, Defendant-Appellant.
    Gen. No. 51,777.
    First District, Fourth Division.
    September 6, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. R. Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Murder.

Defense at Trial

Self-defense.

Judgment

After a jury trial, defendant was found guilty and was sentenced to a term of 14 to 20 years.

Contentions On Appeal

(1) Defendant was not proven guilty beyond a reasonable doubt.

(2) The State’s Attorney made prejudicial misstatements during his opening statement to the jury.

(3) The jury was erroneously instructed.

Evidence

Ralph McCullough, for the State.

On August 11, 1965, defendant, decedent (Fred Butler), William Charles Enis and the witness were in a tavern drinking. An argument arose between decedent and defendant. They wrestled for a while, stopped, and had another drink.

Then they started wrestling again. I don’t know if they were angry at each other; they did that all the time, I don’t know.

Then Fred picked up a stick and was going to hit the defendant with it. Fred said, “I will blind you for life.” He was holding the stick in his hand. It was a two-by-four. I grabbed Freddie Butler by his arms. Freddie was still holding the stick. After I grabbed him, his arms were down at his side. I grabbed his arms down by the wrist part. The stick was still in his hand. One part of it was on the ground and the other end was in his hand. That is when Willie came up and shot him.

Q. And where did Willie shoot ?

A. He shot over my right shoulder.

Q. And by that you mean Willie Dorsey?

A. Yes, sir.

Q. And where did the shot go ?

A. It went over my left shoulder and hit Freddie Butler. It hit Freddie Butler in the left chest. Then Fred made about ten steps and laid the stick on the bench and then he started throwing up blood and I grabbed him.

Just before Willie shot Freddie, Fred said, “I will blind you for life.” Willie said, “Don’t do that.” He did not say anything about killing him. After he shot Freddie, he stood there and looked at him and said, “Die, nigger.” Then he left and Freddie Butler died. The police came and took the body away.

We had quite a bit (of liquor to drink); we had about two or three bottles. Mr. Butler got shot in the alley. We were drinking in the alley. The patio in back of the poolroom is in the alley. Mr. Butler did not back the defendant up against a wall with the two-by-four. He did not tell the defendant that he was going to kill him with the two-by-four. He did have the two-by-four in his hand. The defendant came behind my back. They was facing each other, but I was in between them. The gun was right beside my right shoulder.

Defendant was “an acquaintance” of the witness; decedent was a closer friend. They all “ran around together.” Before the killing they were all good friends.

The witness didn’t see anybody else in the alley or patio behind the poolroom other than the persons named.

William Charles Enis, for the State.

He was one of the group with defendant on August 11, 1965. He had gone drinking with them on other occasions. On those occasions there had been “scuffling and tussling.” There had been a little “confusion” earlier in the evening; “they started pushing and scuffling.”

At about eight-thirty in the evening we were sitting in back of the poolroom drinking. As I said before, they had been scuffling, tussling and pushing. Then all of a sudden Fred asked me to pass him a stick. I said I wouldn’t so he asked Ralph. Ralph said he wouldn’t. So he walked around behind the bench to get the stick himself and then to told Willie that he was going to blind him, you know, put his eyes out, beat his head flat like a biscuit. So Ralph got up to stop him. Ralph told him that was wrong. At this time Willie Dorsey was sitting on the bench.

After Dorsey left my side, he got up and then all of a sudden there was a shot fired. I saw him fire the shot. Willie fired it.

Q. Now, at the time Mr. Dorsey fired the shot, what was Ralph McCullough doing?

A. He was over by Fred.

Q. Did you see what he was doing near Fred ?

A. He was standing in front of him.

Q. He was standing in front of him. Was he holding Fred’s arms, did you see?

A. He was trying to restrain him I suppose.

Q. Did you see anything in Fred’s hands?

A. Yes, he had a stick there.

The stick he had was a piece of stock about this long (indicating), and it had six nails in it, two at each end and two in the middle. They were sticking out. . . . When he got shot he still had the stick in his hand. Mr. McCullough was between me and the deceased at the time of the shot, because I was sitting on the bench and they was out towards the alley-way, over by the fence. . . . The bench was about 10 or 15 feet from the fence.

I really couldn’t say how long Dorsey sat there before he walked up and fired the shot. I couldn’t approximate. We didn’t know because the thing happened so fast.

Q. But he was sitting on the bench and then walked over?

A. He was sitting on the bench and he got up, yes.

Edward Scott, Jr., for the State.

He was the F. B. I. Agent who arrested defendant in Chicago more than three months after the killing. Defendant was arrested pursuant to a warrant for unlawful flight to avoid prosecution for the murder of the decedent.

Stipulation.

A toxicologist’s report would indicate that decedent was under the influence of intoxicating liquor at the time he was shot to death.

Leroy Buie, for the defense.

He had never told his story to the police. However, he explained his presence as a witness at the trial by relating that he had met defendant’s wife in a tavern a couple of weeks before, and in conversation he told her that he had seen the shooting. At her urging he told his story to defendant’s attorney.

On the evening of the incident, he cut through the alley on his way to Lake Street and saw four men. He didn’t know any of them. One man was “going at” the other with a stick, cursing.

The man with the stick was walking towards this man and this man was backing along Lake Street [sic] and he was walking toward him with the stick. ... It took about three or four or five minutes for this man advancing with the stick to go this five or six feet before he was shot. . . . When I first saw the man with the stick advancing on the other man, he was about six or eight feet away from him. That is the furthest he was away from him.

There were garbage cans all up the alley. Nothing interfered with my vision, just a little bit, it was getting dusk out, late in the evening. I observed this for about three, four, five, six minutes.

Suddenly a shot went off. Two of the men ran. The other caught the fourth man and eased him to the ground. He (Buie) was about 75 to 100 feet away and was not able to see the person who fired the shot — only his “shadow.”

. . . The person who fired the shot backed up towards Lake Street, back up against the wall, and the guy was walking on him with the stick and this guy said something like, I wasn’t too familiar, you know, with what he said, I was a little too far off but anyway he was cursing this guy. He said, “I am going to do something I should have did to you a long time ago,” and he called him a name, and I heard him say, “I am going to blind you, I am going to beat your brains out,” or something, but when they were gone I left.

... I ran back west through the alley and come out on Lake Street and I was going to call the police at the time but by the time I made it around the corner the fire department was there first, I am pretty sure, and the alley was full of police.

I did not go up and talk to any of the policemen. I went home. I told people about what I had seen; we was talking about it. I just talked to the guys around the street. I did not talk to any of the policemen.

Defendant

At about 6:00 p. m., August 11,1965, he met Ralph McCullough at a tavern and they drank. About 45 minutes later, they went to an alley patio behind the pool hall where they sat on a bench and conversed. After a few minutes Chuck Enis and Fred Butler (the decedent) arrived. He and Fred got into a dispute over a bottle of wine which Fred took from him and drank.

. . . Well, was about five minutes passed, so he gets into it about something else. He tells me not to say nothing, so this is what gets us back into it again I guess, I don’t know, and I said something and he said, he started putting on his gloves and I say, “What you doing that for?” Well, “We fight, you know.” So I say I don’t want to fight because I don’t know what we fighting about. So he started putting on his gloves. I jumps up off the bench and I grabs his wrist and he tears the gloves off his hand, skin-tight gloves. He tears them off his hands and he comes out of them and so I say, “All right,” you know, and I throws up my dukes. So nothing happens. He backed down. So I goes back over to the bench and sits back down. I think it’s over with. He walks down the alley and I think he’s gone. So I’m talking to Chuck and Chuck is sitting besides me on the bench talking. I forgot all about it. Then Fred comes back up with this two-by-four with nails in it. He’s standing about from here to the table there and he says, “I’m going to blind you.” So I jumps up off the bench again and when I jump up Chuck jumps up and they jump, everybody jumps up. They jumps back into the doorway, the pool hall doorway. I start backing along the bench to the door. Then he start coming at me. Well, I didn’t know what to do then. They are standing in the door and I don’t know whether to break and run or what to do. I got this pistol in my pocket, I know I got it. I don’t want to pull it out. I don’t want to hurt him. So he comes over to me. I pulls it out. Ralph, he runs by and the shot went off. When the shot went off I tell Chuck to go over to the fire house and get the ambulance and he takes off and Fred was losing a lot of blood from the mouth, so I gets scared and I run. I runs down the alley and I runs and catches the bus and I goes downtown, get on the Greyhound and go out óf town. Three months later I comes back and the F. B. I. picked me up.

Defendant described his relationship with decedent by saying that they were not enemies, and continued:

He is a fellow that I would see up around that comer a number of times. I drank with him. I did not wrestle with him or sparred around. I don’t play like no kids. We wasn’t playing, we had a fight once before, maybe six months.

Defendant’s testimony on cross-examination was substantially the same as on direct. He concluded:

He had the stick in his hand, about like this. He was holding it out in front of him and he said, “I’m going to blind you.” I don’t know what angle the stick was. He had it down like this. He shook it at me a couple of times. He told me he was going to blind me, see, so this shook me up. He told me too, he says, “Well, I should have got you before,” I think he had something against me but I don’t know what. Well, he said, “I should have got you before but I am sure going to get you now,” and that kind of shook me up, see. That part is why I moved. Before that I wouldn’t get up. It never worried me before. Ralph was standing back by the door. See, they gave us room. Ralph didn’t touch Freddie at all. He came between us when I shot. When I came out, Ralph moved over. He didn’t grab him before and tell him not to do it. Didn’t nobody say nothing, nobody was saying nothing, it was quiet as a mouse. The gun was in my back pocket. I reached for it with my right hand. When I reached for it, I came up around the shoulder. It went off. I was intending to fire the pistol because I thought he was going to hit me. I didn’t know if he grabbed the gun or what. But I pulled the trigger. Ralph run in between us. I don’t know if it was before I fired or what.

Opinion

(1) Defendant contends that the State failed to prove beyond a reasonable doubt that he committed the crime of murder. He concedes that he intended to shoot decedent and that he killed him, but argues that the State failed to meet its burden of proving that the killing was not justified in self-defense.

As can be seen from a review of the evidence, there was considerable conflict in the testimony, particularly in regard to the position and actions of McCullough just before the shooting. The jury obviously decided the question of credibility in favor of the State’s witnesses, and that determination will not be set aside by us under the circumstances of this case. We have therefore examined the evidence in detail primarily to ascertain whether it furnishes support for the jury’s verdict.

We find that it does, and that there was ample testimony to support the conclusion that it was unreasonable for defendant to have believed (if he really did) that deadly force was necessary to prevent imminent death or great bodily harm. McCullough had imposed restraint upon decedent; decedent’s wrists were held; his arms were pinned to his sides; the spiked end of his cudgel rested on the ground. McCullough had placed his body between decedent and defendant, and defendant was thus insulated from immediate peril. At that moment (according to testimony which the jury could reasonably have believed), defendant walked ten or more feet to McCullough’s back, reached over his shoulder, necessitating his holding the pistol in an awkward position, and shot decedent point blank in the left chest. Such conduct evidences a mind bent on revenge or retaliation rather than on extrication from reasonably apparent danger. People v. Thornton, 26 Ill2d 218,186 NE2d 239.

Also consistent with the necessary mental state for murder was the evidence that defendant and decedent had been fighting earlier that evening and on other occasions, that defendant had considered himself wronged in the episode of the wine bottle, and that, standing over his dying victim, defendant had said, “Die, nigger.”

(2) Secondly, defendant contends that the State’s Attorney, in his opening remarks to the jury, misstated certain facts, the effect of which was so prejudicial as to render the entire trial unfair. In his statement, the prosecutor asserted his belief that the evidence would show that there was a period of three to five minutes between the time when decedent picked up the stick and the time of the shooting; and that defendant fired three shots at decedent. He then corrected himself as to the number of shots, saying that the evidence would show only one shot, not three.

The testimony of defendant’s witness fully supported the statement as to the elapsed time of the incident, and there was a timely correction on the number of shots. We find no prejudice as to either statement.

(3) Defendant also contends that the court erred in giving a State’s instruction on the subject of voluntary manslaughter (Ill Rev Stats (1965), c 38, § 9-2(a)) and in permitting the jury to consider a manslaughter verdict. In our opinion the court acted properly, since there was evidence which could have justified the conclusion that decedent’s assault evoked a “sudden and intense passion” in defendant. See People v. Kessler, 333 Ill 451, 164 NE 840; 4 Blackstone’s Commentaries (7th ed) 191; Perkins, The Law of Homicide, 36 J of Cr L and Crim 391 at 412-422 (1946); and People v. Taylor, 36 Ill2d 483, 488, 224 NE2d 266.

Finally, defendant contends that the court erred in refusing his tendered instruction that the presumption of defendant’s innocence remains with him throughout every stage of the trial and that the burden of proof never shifts from the State. One of the given instructions fairly and adequately cautioned the jury about substantially the same matters. It was therefore not error for the court to have refused defendant’s instruction. People v. Miller, 74 Ill App2d 356, 359, 220 NE2d 1.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       Ill Rev Stats (1965), e 38, § 9-1:
      Murder
      (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
      (3) He is attempting or committing a forcible felony other than voluntary manslaughter.

       Ill Rev Stats (1965), c 38, § 7-1:
      Use of Force in Defense of Person
      A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Knox (Impleaded), Defendant-Appellant.
    Gen. No. 51,778.
    First District, Third Division.
    July 15,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of burglary. After a trial without a jury the trial judge sentenced the defendant to a term of two to four years in the penitentiary.

The defendant contends on appeal that the evidence adduced at trial did not support the allegation contained in the indictment that the burglarized premises were the premises of “H & K Realty Co., Inc., a corporation.” The defendant also contends that there was a fatal variance between the description of the premises as a “tavern” and the proffered proof at trial because it was established that the premises were not in use as a tavern at the time of the burglary.

It is well established in this state that a burglary indictment must be sufficiently specific as to ownership or possession to enable the defendant to adequately prepare his defense and to protect him from subsequent prosecution for the same offense. People v. Wilson, 24 Ill2d 598, 182 NE2d 683; People v. Walker, 7 Ill2d 158, 130 NE2d 182.

In a burglary prosecution, the state need not plead or prove ownership of or precise legal title to the burglarized premises; rather the state need only plead and prove occupancy of or possession in the party whose occupancy or possession is rightful as against the burglar. People v. Kreisler, 381 Ill 453, 45 NE2d 653. The defendant argues that there was no evidence that H & K Realty Co., Inc. was acting in any capacity other than as a mere rental agent of the premises burglarized. The record contains the unrefuted testimony of the secretary of the company that the property was under the domain and control of H & K Realty Co. This testimony was buttressed by evidence that the company was the first and only party notified that the burglary had in fact occurred. Therefore this court cannot agree that the trial court erred in finding that the requisite possessory interest of H & K Realty Co. was established in accord with the allegations in the indictment.

The defendant contends that there was a fatal variance between the allegations of corporate character in the indictment and the proof at trial regarding this corporate possession of the premises. The thrust of this contention is that the identity of the corporate possessor of the premises as set forth in the indictment was not adequately proven by the evidence. With this contention we cannot agree. The relevant evidence at trial was contained in the testimony of the Secretary of the company that “H & K Realty” was a corporation and was licensed to do business in the state of Illinois. The defendant emphasizes the omission of the precise “H & K Realty Co., Inc.” language which was employed in the indictment, and therefore concludes that such an omission results in a fatal variance. Again, we cannot agree. This testimony was unrefuted and was not objected to at trial. Corporate existence can be proved by oral testimony, taken without objection, by an officer of the corporation. People v. Panczko, 381 Ill 625, 46 NE2d 28; People v. Burger, 259 Ill 284, 102 NE 751. Such clear testimony of incorporation of the company obviated any need for the court to have to infer the fact of incorporation from the evidence in the case at bar.

The defendant relies on a recent decision of this court and on the cases cited therein. People v. Jamison, 92 Ill App2d 28, 235 NE2d 849. In that case a burglary conviction was reversed and remanded because there was no evidence or mention of two of the three co-partners alleged in the indictment to be the owners of the burglarized premises. People v. Jamison, supra, is clearly distinguishable from the case at bar because the Jamison court was confronted with a total lack of any evidence to enable it to conclude who, in fact, was in possession of the premises. On page 31, the court said:

“In the case at bar one copartner of a store testified as to his own membership therein. No mention was made of the other two persons named in the indictment. While it may be that they indeed were the true partners of Bellamy, no such proof was made and no such conclusion can be had from a total lack of evidence. The State failed to prove an essential element of the crime as charged and, therefore, Jamison’s conviction cannot stand.” (Emphasis supplied.)

In the case at bar, this court is not faced with such an absence of proof in view of the aforementioned testimony of the secretary of the realty company.

Another argument advanced by the defendant is that the use of the descriptive word “tavern” in the indictment reveals a fatal variance since the premises were not being used for any business at the time of the burglary and since no street address was set forth in the indictment. The street address of the burglarized premises does not have to be mentioned in the indictment. People v. Reed, 33 Ill2d 535, 213 NE2d 278. See also People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 223 (affirmed 34 Ill2d 179, 214 NE2d 765). In the present case, tavern fixtures were still on the premises as was a sign designating the premises as such. The fact that the tavern was temporarily closed does not render such a designation as fatally defective. The absence of the address in the indictment does not create the threat of the defendant’s being placed in double jeopardy because an accused in a subsequent prosecution may introduce the record of a former prosecution to establish his defense of prior jeopardy. People v. Jankowski, 391 Ill 298, 63 NE2d 262; People v. King, 50 Ill App2d 421, 200 NE2d 411. The record in the case at bar contains several disclosures of the precise address of the tavern. These disclosures were given by the secretary of the realty company and by the arresting police officers.

In light of the foregoing discussion, the conviction is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Akins, Defendant-Appellant.
    Gen. No. 51,769.
    First District, Fourth Division.
    July 17,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Daniel W. Weil, and James Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

On August 9, 1966, defendant was convicted of the crime of armed robbery after a bench trial and sentenced to the penitentiary for a term of not less than ten nor more than twenty years. On appeal he contends that his guilt was not proved beyond a reasonable doubt and that he was deprived of a fair trial by the incompetence of his counsel.

The complaining witness, Walter Munson, testified that at four o’clock on the morning of May 21, 1966, he was sitting in his blue 1959 Cadillac at 6050 South Eberhart, that defendant approached him holding his stomach and requested that he be driven to a hospital. Munson stated that when he refused, defendant opened the car door and got in, that defendant put a gun in his side and asked him if he had any money and that upon his answering that he had none, defendant removed the witness’ wallet and found $36. Munson said that defendant forced him to drive around and then made him stop at 47th and Dorchester where he was forced to get out of the car. The witness testified that in addition to the car and the money, defendant took a flashlight, some sunglasses and a check. He said that after he got out of the car he called the police, that he described defendant as being twenty-three or twenty-four years old, six feet and one-half inch in height, weighing 175 to 180 pounds, having a light brown complexion and wearing a black trench coat. Munson stated that he saw defendant in Holiday Court the next day, that he had poor vision in his left eye but twenty-twenty uncorrected vision in his right eye, that he was not intoxicated at the time of the incident, that People’s Exhibit 1 resembled the gun used by defendant and that he saw his car that evening at the pound.

A. J. Holloway testified that on May 21 at 5:30 a. m. he was at 215 or 218 East 51st Street, that defendant came around the corner in a blue 1959 Cadillac; that he had not previously known defendant; that defendant stopped the car, asked for a dime, and got out and that the witness got in. He said that defendant had a woman with him, that he conversed with defendant and was able to observe his face and that he saw defendant at eight o’clock at Provident Hospital.

Grover Cleveland stated that on May 21 at 5:45 or 5:50 a. m. he and Robert Anderson were standing at 43rd and South Park looking at a fire when defendant drove up in a blue 1959 Cadillac and that he and Anderson got in the car and rode to 350 East 44th. He said defendant had a girl with him and that he had seen defendant around the neighborhood before.

Police Officer Robert Anderson testified that he was off duty and that he and Cleveland were watching a fire at 43rd and South Park when defendant arrived in a blue 1959 Cadillac. He said they rode about a block with defendant who was bareheaded and was wearing a dark coat.

It was stipulated that if Officer Jack F. Porche were called he would testify that on May 21, 1966, at about 6:00 a. m. he was called to the area of 45th and Vincennes; that Grover Cleveland pointed out defendant to him; that defendant was standing across the street at 4551 St. Lawrence Avenue, and that upon calling out to him that he was under arrest he turned toward Officer Porche with a gun at his waist. Officer Porche would also have testified that he fired a shot over defendant’s head, that defendant then jumped over two fences in an effort to escape, that another police officer found Exhibit 1 under a nearby porch and that a blue 1959 Cadillac was taken into custody.

The parties stipulated that defendant appeared to be about six feet tall, weighed about 200 pounds, was a medium to lightskinned Negro and appeared to be in his mid or late twenties. It was also stipulated that if Officer J. Williams were called he would testify that on May 21 Walter Munson told him that he was approached by a male Negro, twenty-six to twenty-seven years of age, five feet nine or five feet ten inches tall, “dark-complected,” wearing a black suit and a blue shirt and carrying a .22-caliber blue steel revolver.

Defendant first contends that his guilt was not proved beyond a reasonable doubt. He argues that there were discrepancies between the description given to the police by the complaining witness, Munson, and other evidence. Defendant points out four variances: age, color, height and clothes. Although defendant was only twenty-one years old, the stipulation stated that he appeared to be “in his twenties somewhere, mid or late twenties.” As to color, Munson described his assailant as “dark-complected.” It was stipulated that the defendant, a Negro, was “medium to light-complected.” Munson’s ability to judge whether or not defendant was a darkskinned or lightskinned Negro is limited by the fact that the incident took place outside and at night. Furthermore it is not clear that his reference to a “dark-complected” person meant anything other than that the man was a Negro. There appears to be a discrepancy of two to three inches in the testimony as to the height of the defendant and also as to whether he wore a black suit or a black topcoat. The only time Munson saw the man standing up the man wás holding his stomach and Munson was seated in his car. This was at 4:00 a. m. As we stated in People v. Carpenter, 71 Ill App2d 137, at page 145, 217 NE2d 337:

Slight discrepancies in the testimony of the witnesses do not render that testimony unworthy of belief. People v. Williams, 28 Ill2d 53, 190 NE2d 796.

Furthermore, we would point out that Munson was able to see defendant’s face during their ride in the automobile and he identified defendant in Holiday Court the following day as the robber. Moreover, Munson was robbed of his blue 1959 Cadillac and three witnesses testified that they were approached by defendant in a blue 1959 Cadillac within two hours of the robbery and in the same general vicinity. Finally, a blue 1959 Cadillac, which was impounded by the officers who arrested defendant within about ten minutes of the time he was seen by two of the witnesses, was identified by Munson as his and a gun which Munson later identified was found under a porch thirty feet from where defendant was arrested with $92 in cash in his possession. The trial court accepted the testimony of Munson as true and it appears beyond a reasonable doubt that defendant committed the armed robbery. (People v. Clark, 30 Ill2d 216, 195 NE2d 631.)

Defendant also argues that Munson’s identification the day after the occurrence, in Holiday Court, is not probative because of the conditions under which it occurred. However, no description of these conditions appears in the record.

Defendant’s second contention is that he did not receive competent representation because his counsel went to trial without a jury before the same judge who two weeks before had tried defendant on another indictment and heard evidence in aggravation and mitigation in sentencing him. Defendant argues that the situation is controlled by People v. Chatman, 36 Ill2d 305, 223 NE2d 110. In that case, in holding that the defendant was entitled to a new trial due to incompetent representation, the court pointed out that the trial judge had emphatically indicated at the close of the prior trial that he did not believe the testimony of the defendant or his alibi witness and that the defendant believed the judge was prejudiced against him. The judge sentenced the defendant to sixty years in the penitentiary to run consecutively to a sentence of sixty years on the first charge. In the instant case the record of the jury trial at which the judge had previously presided is devoid of any indication of prejudice on the part of the judge toward the defendant. Equally lacking is any indication that defendant himself so regarded the judge. Furthermore, the judge accepted the recommendation of defendant’s counsel as to the length of the sentence and sentenced defendant to a term identical with the one he received in the first trial and ordered that they run concurrently. Thus, there is in fact no indication of prejudice toward defendant. We do not believe that defendant received incompetent representation entitling him to a new trial. People v. Bush, 29 Ill2d 367, 194 NE2d 308; People v. Dowling, 95 Ill App2d 220, 238 NE2d 130, and 95 Ill App2d 223, 238 NE2d 134.

The judgment of the Circuit Court is affirmed.

Affirmed.

McCOKMICK, P. J. and ENGLISH, J., concur.

       At oral argument defendant abandoned his contention that he did not knowingly waive a jury trial.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Akins, Defendant-Appellant.
    Gen. No. 51,798.
    First District, Fourth Division.
    July 17,1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Daniel W. Weil, and James

      Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

On July 27, 1966, defendant was convicted of the crime of armed robbery after a jury trial and was sentenced to the penitentiary for a term of not less than ten nor more than twenty years. On appeal he contends (1) that evidence of other criminal activity should not have been admitted and (2) that the closing argument of the prosecution was prejudicial.

One of the complaining witnesses, Grover Cleveland, testified that on May 21, 1966, at 5:45 a. m. he and Robert Anderson were watching a fire at 43rd Street and South Park Avenue; that defendant drove up in a 1959 Cadillac in the company of a girl and told him that he wished to show the witness something, that he had seen defendant in the place where he (the witness) worked; that he called over his companion Anderson; that defendant told them to get in the car and after driving a very short distance drew a gun and told them that this was “a stickup.” Cleveland testified further that defendant made them get out and stand with their hands on top of the car, that he robbed them and hit each of them over the head with his gun. He said that Anderson hailed a passing car in order to trail defendant and that he called the police who arrived shortly and captured defendant.

Robert Anderson, an off-duty policeman, substantiated Cleveland’s testimony that defendant robbed them at 5:45 a. m. and that they followed defendant until the police captured him, adding that the 1959 Cadillac automobile driven by defendant was blue.

Officer Jack F. Porche; who was one of the arresting officers, testified that defendant was pointed out to him by Grover Cleveland; that defendant tried to flee but was arrested at 4551 St. Lawrence Avenue; that a blue 1959 Cadillac was taken into custody; that a gun identified by Cleveland, Anderson and A. J. Holloway as the one used by defendant was recovered thirty feet from where defendant was captured; and that the gun had been fired.

Defendant testified that on the morning of May 21, 1966, he had been “socializing” at the Ritz Bowling Alley; that he had called his girl friend Shirley Crockett and arranged to see her at her apartment at 4537 St. Lawrence Avenue; that he arrived at her apartment at 3:45 a. m.; that he knocked on her window but she did not come to the window; that he knew she was there thirty minutes before he went over as he had called her; and that upon leaving about three minutes later, he was arrested. He said that he was taken to the hospital to have a cut and a bruise treated and that at 5:45 a. m., the time of the alleged robbery, he was in jail.

Defendant’s first contention is that he was prejudiced by evidence relating to another criminal activity. A. J. Holloway testified that at five-thirty on the morning in question defendant approached him in a blue 1959 Cadillac at 218 East 51st Street accompanied by a girl; that defendant asked him for a dime and when this request was refused, forced him into the car at gunpoint; that he was driven into an alley and robbed by defendant and that during the course of the robbery defendant fired a shot. He said that defendant then made him get out of the car and drove off.

Defendant does not disagree with the general rule that evidence of other crimes is inadmissible unless it tends to establish identity, intent, motive or a common scheme or design. He argues, however, that the evidence relating to the Holloway robbery should have been governed by the general exclusionary rule rather than any of the exceptions. In People v. Tranowski, 20 Ill2d 11, 169 NE2d 347, the defendant was tried for robbery. The complaining witness said that he was robbed by a man wearing a dark coat and carrying a shiny gun who approached him and demanded his money. In affirming the judgment, the Supreme Court stated that evidence of other robberies in which defendant was identified as the man who approached people on the street at approximately the same time, in a similar manner, in the same general vicinity as the robbery in question and in which defendant wore a dark coat and carried a shiny gun was admissible. The court said at page 16 that:

. . . this evidence served to place defendant in the area at the correct time and establish a scheme or design which was strikingly similar to the offense charged in the indictment.

Defendant urges that in People v. Fuerback, 66 Ill App 2d 452, 214 NE2d 330, the court reversed a conviction on the ground that evidence of another crime in refutation of an alibi was prejudicial. In that case the court pointed out that the exceptions to the general rule were not pertinent. The only purpose of introducing the evidence of another crime in that case was to rebut the alibi and not to establish identity, intent, motive, or a common scheme or design. In the instant case the evidence was properly admitted as exception to the general exclusionary rule.

Defendant’s second contention is that he was prejudiced by statements made in the prosecution’s closing argument to the jury. The prosecutor said that defendant had the right to subpoena his girl friend to testify that he did pound on her window and to establish the exact hour at which he came to her house. Defendant cites People v. Smith, 74 Ill App2d 458, 221 NE2d 68, in which we found that a similar argument to the jury was prejudicial. However, in that case the remarks of the prosecutor were made sua sponte. In the instant case the statement of the prosecutor was in response to an argument made previously by defense counsel that the prosecution should have produced witnesses to rebut defendant’s alibi. In People v. Smith, 24 Ill2d 198, 181 NE2d 77, the Supreme Court held that if the argument was provoked or actually invited by remarks of the defense counsel concerning the failure of the People to call the person in question as a witness, it was a “natural and proper response to the argument of defense counsel and was not prejudicial error,” citing People v. Izzo, 14 Ill2d 203, 151 NE2d 329, and People v. Wheeler, 5 Ill2d 474, 126 NE2d 228. Defendant complains of other prejudicial arguments but no objections were made and we find them to be innocuous.

The judgment of the Circuit Court is affirmed.

Affirmed.

McCORMICK, P. J. and ENGLISH, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. LeRoy Robinson, Otherwise Called Robert Payne, Otherwise Called LeRoy Robinson, Defendant-Appellant.
    Gen. No. 51,802.
    First District, Fourth Division.
    September 6, 1968.

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

delivered the opinion of the court.

Crime Charged

Burglary. (Ill Rev Stats (1965), c 38, § 19-1.)

Judgment

After a jury trial, defendant was found guilty and sentenced to a term of 6 to 15 years.

Contention on Appeal

The admission into evidence of testimony concerning another crime was prejudicial error.

Evidence

Margaret Woods Martin, for the State.

Her house in Winnetka, Illinois was burglarized between 8:45 a. m. and 11:45 a. m. on March 28, 1966. A number of articles (watches, wallet, clothing, etc.), which were found in defendant’s possession when he was arrested, were identified by her as things which had been stolen from her home. Included was a jacket with a label bearing her husband’s name.

Herbert Timm, for the State.

He was a Winnetka police officer. While on duty, at about 11:00 a. m. on March 28, he saw a “black over white” 1963 Buick convertible. He had an “inscription” in his car relating to that car’s license number. He checked the license number against his “worksheet” three times; it was a “wanted car.”

He stopped the Buick and informed defendant, who was its sole occupant, that the car he was operating had been stolen. The officer then looked in the rear window of the Buick and saw the car was “piled” with articles of clothing. He then searched the auto and found numerous articles of personal property, many of which were identified by Mrs. Martin as items taken from her home. The watches were on the front seat of the car and the wallet was in defendant’s rear pocket.

Opinion

Defendant’s sole contention on appeal is that it was error for the police officer to have been allowed to testify that the Buick had been stolen; that this was evidence of a separate and distinct crime from the one charged against defendant and, as such, was inadmissible and highly prejudicial; citing People v. Wilson, 400 Ill 461, 481, 81 NE2d 211; People v. Gawlick, 350 Ill 359, 183 NE 217, and other similar cases stating that general rule.

In considering defendant’s argument, we have examined the abstract and can find no hint that defendant made any objection to the testimony at the time it was given, or that he brought the alleged error to the attention of the court at any other stage in the proceedings. Therefore, it is discretionary as to whether we choose to notice this as a “plain error.” Supreme Court Rule 615 (a), Ill Rev Stats (1967), c 110A, § 615(a). Further, from our study of the case as a whole, we conclude that the admission of this testimony did not constitute error at all.

Where burglary is proved to have been committed, the finding of the defendant soon thereafter, in unexplained, exclusive possession of items taken in the burglary, is sufficient to raise an inference that he had committed the burglary. People v. Mallett, 30 Ill2d 136, 195 NE2d 687; People v. Reynolds, 27 Ill2d 523, 190 NE2d 301. It was through Officer Timm’s testimony that the State sought to establish that defendant was in possession of the stolen property under those circumstances. Thus, his testimony was relevant and material to prove defendant’s identity as the perpetrator of the crime.

While we agree with defendant that, generally, evidence of the commission of other crimes by the accused is inadmissible (Farris v. People, 129 Ill 521, 21 NE 821), testimony laying a basis for identification is not excludable because of incidental disclosure of another offense. People v. Diekelmann, 367 Ill 372, 11 NE2d 420; People v. Davis, 14 Ill2d 196, 151 NE2d 308. It was permissible for Officer Timm to explain the circumstances surrounding defendant’s arrest, and to testify that he had stopped defendant when he recognized the Buick as stolen, as this tended to bolster his credibility. Cf. Lane v. Warden, Maryland Penitentiary, 320 F2d 179. Furthermore, it was part of a continuing narrative. People v. Walls, 33 Ill2d 394, 211 NE2d 699.

It is only where the commission of another offense has no connection with or relation to the prosecution of the crime charged and only creates a prejudice against defendant, that its proof renders the trial unfair. People v. Klein, 305 Ill 141, 137 NE 145; People v. Booker, 34 Ill2d 16, 19, 213 NE2d 542. We find that defendant did receive a fair trial and that the questioned testimony was properly admitted.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

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