text:
    Caseyville Township Road District, Plaintiff-Appellant, v. Union-Electric Company, Defendant-Appellee.
    (No. 70-23;
    Fifth District
    October 7, 1971.

      Robert L. Jennings, of Belleville, for appellant.
    Pope and Driemeyer, of East St. Louis, (Kenneth J. Schuessler, of counsel), for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff CaseyviUe Township Road District, a municipal corporation, brought this action for a declaratory judgment against Union Electric Company to have the court declare the respective rights of the parties in an easement across plaintiff’s land deeded to defendant by plaintiff’s predecessors in title. The trial court entered a judgment in favor of defendant and plaintiff appeals.

Tire case was submitted on a stipulation of facts. Plaintiff purchased the strip of property involved in this case, described as a right-of-way, from the Illinois Terminal Railroad Company by a quitclaim deed dated April 10, 1967 for $4101.80. On December 31, 1940 the railroad company entered into an easement agreement with Union Electric Company of Illinois, the predecessor of Union Electric Company whereby it granted and conveyed to the electric company, its successors and assigns, the perpetual right and easement to maintain and replace certain electric transmission lines which were tiren in existence across the railroad’s right-of-way. The tenth paragraph of this agreement provided:

"Said Electric Company further agrees that it wUl raise its transmission wires at the entire expense of said Electric Company to provide proper clearance as provided by law, if at any time in the future Railroad Company may desire to construct any track or tracks upon the land occupied by said transmission lines and to remove and relocate any pole or poles or structure or structures at its own cost and expense on said right-of-way, shoidd it be found necessary by reason of use by Railroad Company of the ground occupied by such pole or poles or structure or structures, the Railroad Company agreeing to furnish the land to be occupied by such removed, replaced, or relocated pole or poles or structure or structures.” (Emphasis added.)

The transmission line was still in existence in 1967 and the quitclaim deed from the railroad company to plaintiff stated: “This deed is made subject to the right of the Union Electric Company, its successors and assigns, to operate and maintain power transmission lines over and upon the above described property.”

In 1968 plaintiff contemplated building a Motor Fuel Road along the right-of-way acquired from the railroad company which would necessitate the relocation of the existing transmission lines. Defendant did not object to the relocation of the lines provided plaintiff would bear the cost. Plaintiff insisted that the cost should be borne by the electric company by virtue of the terms of the easement agreement. The estimated cost of the proposed one-mile Motor Fuel Road is $28,000, the estimated cost of relocating the transmission lines is $27,000, and there is sufficient land along the right-of-way to provide for relocation of the lines.

The trial court found that plaintiff had the right to require relocation of defendant’s existing electrical transmission lines, that plaintiff furnish defendant with land within the present right-of-way to effect the relocation and that plaintiff pay the cost of that relocation.

Plaintiff has presumed that it succeeds to all the rights and burdens imposed by the easement agreement and argues as does defendant that the agreement must be construed to effectuate the plain intent of the parties and in so doing, the whole instrument must be considered and the intention determined from the language of the agreement. We agree.

In the fourth paragraph of the agreement the railroad company granted to the electric company, its successors and assigns, the perpetual right and easement to maintain, operate and replace the transmission lines across the right-of-way as they were then located or may in the future be located. In the seventh paragraph the railroad company reserved to itself “its successors and assigns” the right to abandon any portion of the right-of-way in which event it would give reasonable notice to the electric company and would use its best efforts to secure to the electric company all rights necessary for the continued operation of the lines, but any cost involved in that event would be borne by the electric company. In paragraph eight the railroad company reserved to itself “its successors and assigns” the right to attach wires to the transmission line poles for the purpose of establishing a telephone line for its own uses. In the ninth paragraph it was agreed that nothing in the agreement would prevent the railroad company “its successors and assigns” from the full use and enjoyment of the land as may he and exist between the wood poles or structures of the electric company. The twelfth paragraph provides that the railroad company agreed to hold harmless the electric company, “its successors and assigns” from any claims or damages arising in certain specified occurrences. In the thirteenth paragraph the electric company agreed to hold harmless the railroad company “its successors and assigns” from all damages arising out of certain specified occurrences.

Plaintiff argues that since the railroad company reserved certain rights to its successors and assigns in the above-mentioned instances, it is not unreasonable to conclude that the original parties intended that should it become necessary to relocate the lines for any purposes, the expense of relocation would be borne by the electric company, especially in view of the fact that in every instance in which the electric company would be required to relocate its lines, the agreement expressly provided that the electric company would bear the cost as in the tenth paragraph where relocation would become necessary by use of the railroad company. Plaintiff further agrees that any construction that Union Electric should bear the expense of relocation only where it was necessary for use by the railroad company or for railroad purposes is too narrow, is “inequitable, unusual and is such that a reasonable man would not be likely to enter into. It cannot be seriously contended that the owner of the fee would, in addition to the burden of an easement, take on the additional burden of paying the expense of relocating the lines should it find a need for the land.”

Defendant contends that the language of the agreement is unambiguous and requires no construction; that the tenth paragraph expressly provides that the electric company would relocate at its cost its transmission fines on the right of way only where it would be found necessary by reason of use by the railroad company; that the terms of the tenth paragraph do not extend to the successors or assigns of the railroad company by express omission; that the railroad intended to protect its use of the property only during the period of its ownership of the right of way and that the express omission of the term “successors and assigns” in the tenth paragraph is controlling of the parties’ intent.

In determining the intent of the parties from the instrument as a whole, the logic of defendant’s argument is more persuasive. The language of the tenth paragraph is explicit and unambiguous, that the electric company agrees “to remove and relocate any pole or poles or structure or structures at its own cost and expense on said right of way should it be found necessary by reason of use by railroad company of the ground occupied by such pole or poles or structure or structures; the railroad company agreeing to furnish the land to be occupied by such removed, replaced or relocated pole or poles or structure or structures.” The rights of the railroad company under this paragraph are not reserved to its successors or assigns as are other rights embodied in other paragraphs of the agreement. Of the few factors available to determine the original parties’ intent, this factor seems most compelling. The difficulty with plaintiff’s argument that this result imposes a hardship or inequitable agreement upon them is that we are not construing an agreement made between plaintiff and defendant. The agreement was entered into between the railroad company and the defendant and the fairness of that agreement as between those parties is not at issue; rather, at the time plaintiff purchased this property from the railroad company the transmission lines were existing and open and obvious on the land and plaintiff had express notice of the easement agreement in its deed to the right of way, and purchasers of land burdened with an easement take the land subject to easements expressly created of which they have notice and such other easements as are apparent from an inspection of the premises. Edwards v. Haeger, 180 Ill. 99.

We cannot say that it was the plain intent of tire parties to the agreement that in the event a third party, or assignee of the right of way, wished to build a highway on the right of way that the electric company would pay the expenses of moving its lines, because there is nothing in the agreement from which it can be even inferred that either of the parties contemplated the event of a highway being built thereon, let alone the event of a third party or assignee building a highway thereon. The parties simply did not contemplate, and therefore formed no intent with reference to moving the lines in the event a part of the right of way was to be used for highway purposes. Such eventuality was obviously not considered by either of the parties at the time they entered into the easement agreement.

We believe the plain, unambiguous language of paragraph 10 of this agreement means that the electric company would be compelled to remove and relocate the poles and structures mentioned in the agreement at its own expense only if the railroad desired to use the right of way for railroad purposes. The agreement surely did not intend that the electric company would have this obligation if the railroad desired to build a public road as this would not be a railroad purpose. Under the agreement the electric company had a duty to relocate at its own expense only if the railroad desired to use the right of way for railroad purposes. Since the railroad could not compel the electric company to pay for relocating except for railroad purposes, its successors in title could not compel it to pay for relocating the wires to build a public road, which would be a non-railroad purpose. Caseyville Township could not acquire any more benefits from paragraph 10 of the agreement than the railroad had.

We conclude therefore that the agreement by defendant to pay the cost of relocation of the transmission lines where it became necessary by reason of use to be made by the railroad company was limited to the railroad company and the benefit thereof did not pass to the plaintiff by virtue of the conveyance by the railroad.

Accordingly, the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EBERSPACHER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wendell Keene, Defendant-Appellant.
    (No. 70-123;
    Fifth District
    September 30, 1971.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Archie Bob Henderson, State’s Attorney, of Harrisburg, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by defendant from a conviction for voluntary manslaughter entered on his plea of guilty.

The defendant appeared in the circuit court of Saline County for the purpose of a jury trial on a charge of murder. At that time, the State’s Attorney moved the court that the murder indictment be dismissed and in substitution thereof filed an information charging the defendant with involuntary manslaughter. The motion was granted by the court and the defendant was read the information filed against him.

The court then proceeded to inquire of the defendant on his plea to this charge. The court explained to the defendant the waiver of the grand jury indictment. The defendant signed a written waiver and proceeded to enter his plea to voluntary manslaughter.

After inquiries about confessions, the presumption of innocence and right to counsel, the court asked the defendant, “Do you believe that you are guilty of the charge that is filed?” The defendant’s answer was, “Somewhat guilty, Your Honor. I can’t give a dead-pat answer to that”. The defendant also stated in reply to the court’s inquiry, “I did strike Donna Adams, but as far as a dead-pat guilty, I can’t make that statement. I am somewhat guilty, so I will say that I am guilty”. And then again “I would like to say that I did have something to do with her death. I enter a plea of guilty”. The court also questioned “In view of these things that I have just told you, you still desire to enter your plea of guilty?” The defendant answered, “Yes, Sir”. The court next inquired, “Can you tell me when you decided to enter such a plea of guilty”? The defendant replied, “When I conferred with my attorney and he told me the possibilities of sentence and after listening to you I decided”. The record also shows that the defendant read and signed a document which was a Plea of Guilty and a Waiver of Jury Trial. The defendant stated he signed of his own free will.

The defendant now contends that he was denied Due Process of Law under the 14th Amendment of the United States Constitution by the acceptance of the plea of guilty.

The law of this State is that a plea of guilty shall not be permitted unless the court finds from the proceedings had in open court that the accused understood the nature of the charge against him. (Ill. Rev. Stat., ch. 38, pars. 113—4(c) and Rule 401(b) of the Illinois Supreme Court.) The defendant contends that he neither understood the nature of the charge of manslaughter or that if he did there was not sufficient affirmative indication of his intention to plead guilty for the court to accept the plea.

We agree with the defendant that the law favors a trial on the merits and that all doubt should be resolved in favor of a trial when the ends of justice will be best served by submitting the case to the jury. (People v. King, 1 Ill.2d 491, 115 N.E.2d 635; People v. Throop, 359 Ill. 354, 194 N.E. 533; People v. Schraeberg, 340 Ill. 620, 174 N.E. 148.) We have reviewed the abstract and the record in this case and we feel that the record clearly indicates that the defendant did have an understanding of the nature of the charge against him as required in People v. Miller, 123 Ill.App.2d 473, 260 N.E.2d 312; People v. Rogers, 26 Ill.2d 599, 188 N.E.2d 22; People v. Boyd, 52 Ill.App.2d 270, 202 N.E.2d 95. As stated in People v. Harden, 78 Ill.App.2d 431, 222 N.E.2d 693, “* * * the court’s authority permits consideration of the total record in determining whether or not there was an understanding of the nature of the charge”. Here while there were several instances of something less than an affirmative unequivocal plea of guilty, the taking of plea was concluded with positive statements followed by defendant’s explanation of how he reached his decision to plead guilty. We therefore find no violation of defendant’s rights and concur in the trial court’s finding that the defendant understood the nature of the charge against him; the court properly accepted the plea.

After the court accepted the guilty plea a hearing in aggravation and mitigation was held.

Subsequent to the hearing in aggravation and mitigation, the court sentenced the defendant to be confined for a five to twenty year period in the penitentiary. The defendant asserts that this was excessive and not appropriate in view of the weight of the testimony in mitigation.

In all, 18 witnesses testified on behalf of the defendant at the hearing. Little would be served by thoroughly detailing what this hearing presented to the court. Briefly stated, the defendant was a man with several prior arrests for assault or battery. He lived with the deceased who was a married although estranged woman. On the night of the crime the defendant and the deceased and another third person had been drinking together when the defendant fell asleep and awoke to find the third party and the deceased in bed together having sexual intercourse. The third party removed himself and the defendant then proceeded to strike die deceased with sufficient force and quantity to cause her death. After the defendant struck the deceased and before she expired, the defendant located the third party and with the third party and another person, the defendant proceeded to get a bottle of whiskey and to sit at the defendant’s house and have a drink. Subsequently, the deceased expired.

It is clear that the imposition of the sentence is within the discretion of the trial court. Before we will interfere, it must be manifest from the record that the sentence is not justified and is excessive by any reasonable view of the record. People v. Hobbs, 56 Ill.App.2d 93, 205 N.E.2d 503; People v. Glasgow, 126 Ill.App.2d 82, 261 N.E.2d 424.

We have reviewed the evidence presented in mitigation, as well as defendant’s pro se brief and argument. The penalty for voluntary manslaughter as provided by statute is one to 20 years. (Ill. Rev. Stat. 1969, ch. 38, par. 9—2.) Considering the circumstances involved in this homicide, we cannot say that the trial court did not take into consideration the mitigation evidence offered, nor can we say that the sentence is not consistent with the position taken by this Court in People v. Cooke, 117 Ill.App.2d 296, 254 N.E.2d 293, in which the homicide occurred under conditions different from those here present, and in which defendant’s previous record differed considerably. The sentence does not clearly appear to depart from the constitutional mandate that “all penalties shall be determined both according to the seriousness of the offense and with tire objective of restoring the offender to useful citizenship” Art. I, section 11, Illinois Constitution 1970, nor does not depart from the constitutional mandate of article II of section 11 of the Constitution of 1870, that the penalty shall be proportioned to the nature of the offense.

We therefore affirm the judgment.

Judgment affirmed.

MORAN and CREBS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Patterson, Defendant-Appellant.
    (No. 70-163;
    Fifth District
    October 1, 1971.

      Matthew J. Moran and Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

A trial was held before a jury in January, 1970, which returned a verdict of guilty of the offense of burglary. This appeal is from the judgment entered on that verdict and the sentence therefrom. The court sentenced Freddie Patterson, hereinafter called the defendant, to a term of not less than four nor more than ten years in the Illinois State Penitentiary.

The defendant was arrested by officers of the Alorton Police Department in a bean field in the vicinity of the Grahmann School in Alorton, Illinois, on July 14, 1969, at approximately 11:45 P.M. The defendant was arrested with two others after being chased by the arresting officers from the rear of a small building on the Grahmann School grounds. A fourth individual was fatally wounded leaving the scene by the officers.

The People and the defendant stipulated that the school building in question was located in St. Clair County and belonged to the County Board of School Trustees of St. Clair County.

The People’s only evidence was the testimony of one of the arresting officers, Robert Felton. His testimony was that he was dispatched by radio to investigate “something” at the school. That when he reached the scene, he observed “four men running out of the school”, or as stated another way, he saw “four men come from the door”; or yet another way, “I saw the men running out”; or “* * # when I drove up they were running out the door”. Officer Felton was emphatic in his testimony that the defendant was in the building even though he did not pinpoint the exact location of the defendant. Officer Felton further testified that the defendant never left his sight.

Further testimony by Officer Felton indicated that the school door had marks on it which appeared to be marks made to pry it open with some tool, that a screw driver was found in the hand of the deceased individual, pry marks were found on the plaster board surrounding one of the building’s air conditioners, of which there were several including one which had previously been removed from its mountings. Also, he testified that desk drawers had been pulled out and their contents spilled on the floor. Cross examination revealed that nothing was taken from the building.

There was also testimony from Officer Felton that although the light bulb immediately outside the school door was “knocked out”, there was light from several other lights, and that lighting conditions were “fairly good”. The defendant moved the court at the conclusion of the State’s evidence for a Directed Verdict. The court denied this motion.

The defendant testified in his own behalf. He stated that on the night in question he was driven by a friend to askating rink where he stayed until 10:00 P.M. He left the rink on foot on a route which eventually took him to the school where he took a short cut around the larger school building. At this point in time he stated that “these guys came running out of the building” and although he didn’t know what was happening, he started running also because they were all heading in the same direction. The defendant denied entering the building. The defendant denied knowing any of the others arrested.

On February 16, 1970, the defendant made an oral motion for probation after the court denied defendant’s post-trial motion for a new trial. The defendant’s application for probation was heard on March 9, 1970. It was denied. Notice of appeal was filed on March 10, 1970. On March 17, 1971, this Court admitted the defendant to an appeal bond.

The defendant urges that the trial court erred in denying the defendant’s Motion for a Directed Verdict of Acquittal made at the close of plaintiff’s case and renewed by the defendant’s post-trial motion.

The defendant contends that all of the necessary elements of the offense of burglary were not proved. The essential elements of the offense of burglary are entry, without authority, within a building, with intent to commit therein a felony or theft. Chap. 38, Sec. 19—1(a), Ill. Rev. Stat. (1969). The defendant asserts that the prosecution failed to show that the defendant entered the building without authority. As stated in a recent decision of this Court, “* * * the law presumes that the presence in a public building for a purpose inconsistent with the purpose for which the building is open to the public is without authority”. (People v. Urban, (Ill.App.2d), 266 N.E.2d 112. Also see People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245, cert. den. 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 746.) In view of the hour of the occurrence, the evidence of prymarks upon the door of the building and the screwdriver found in the hand of the deceased individual, the presumption is strong that the presence in the school building was not for its intended purpose.

The defendant also claims that there was insufficient evidence to show intent to commit a felony or theft. Circumstantial evidence may be sufficient to prove the existence of intent. (People v. Taylor, 410 Ill. 469, 102 N.E.2d 539.) Here again the evidence of the forcible entry, the late hour of the occurrence, the flight from the building, and the rifling of the desks within the building, even in view of the testimony that nothing was taken, is more than sufficient for the triers of fact to conclude that the entry was with the intent to commit a theft.

Likewise, although the testimony was contradicted by the accused, the testimony of one individual can be sufficient when positive and credible. People v. Davis, 103 Ill.App.2d 418, 244 N.E.2d 381; People v. Malone, 126 Ill.App.2d 265, 261 N.E.2d 776; People v. Stringer, 129 Ill.App.2d 451, 263 N.E.2d 500.

We cannot hold that there was insufficient evidence from which the jury could find the defendant guilty beyond a reasonable doubt.

Defendant contends that the trial court erred in failing to admit the defendant to probation and that the sentence imposed by the trial court of four to ten years was excessive. The probation report revealed that the defendant was a 20 year old high school graduate, had been employed in 1968, during the summer of 1969 did volunteer work for the Neighborhood Opportunity Commission and during the holiday season of 1969, between his indictment and trial, was employed as a stock boy in a department store. It further disclosed that “a check of the I.Y.C. and F.B.I. reveals no prior arrest, convictions or incarcerations”. The probation report concluded “We of the probation department do not make a recommendation in this case”. The State urged that “once a defendant has been found guilty by trial and a jury, he should not be given probation”. While the court agreed that “probation is available to anyone” and that such automatic denial of probation would deprive defendant of the constitutional right to stand trial, proceeded to deny the motion for probation without giving a reason. The defendant waived hearing in mitigation and aggravation since the information was “all in the record”. As defense counsel pointed out “he does seem to have gone to school, to have worked as often as he could, he has no prior record — evidently the probation officer couldn’t find anything which was bad. It doesn’t say he couldn’t be rehabilitated on probation”.

As pointed out in People v. Donovan, 376 Ill. 602, 35 N.E.2d 54: We believe that this would have been a proper case for probation but that question has become moot in view of the fact that defendant has served more than one year of the four to ten year sentence imposed.

“The discretion the court may exercise upon an application for probation is not an arbitrary discretion to be exercised at the mere will or whim of the court, but it is a sound legal discretion dependent for its exercise upon the facts shown.”

In view of the showing of this record, we agree that the sentence imposed was excessive. (See People v. Conner (Ill.App.2d), 268 N.E.2d 439; People v. Grigsby, 75 Ill.App.2d 498, 220 N.E.2d 948 and People v. Livingston, 117 Ill.App.2d 189, 254 N.E.2d 64.) We therefore modify the sentence, reducing the minimum to the time which defendant has served and the maximum to three years.

Judgment modified, and as modified, affirmed.

CKEBS and MORAN, JJ., concur.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Aridge, Defendant-Appellant.
    (No. 70-165;
    Fifth District
    October 1, 1971.
    Kenneth L. GiUis, of Defender Project, of Chicago, for appellant.
    Robert H. Rice, State’s Attorney, of Bellevffle, for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from his conviction of the crime of robbery in the circuit court of St. Clair County.

The defendant contends (1) that the trial court erred in excluding evidence relating to defendant’s disease of alcoholism which prevented him from establishing a defense based on insanity, (2) that the prosecutor committed prejudicial error in improperly stating the law in his closing argument to the jury, and (3) that the sentence imposed by the trial judge was excessive.

We find the first two contentions to be without merit. The only substantial question on appeal is whether the sentence is excessive.

The evidence disclosed that the defendant, who had a history of alcoholism, robbed a business establishment in East St. Louis, Illinois, on January 1, 1969. There was no proof that he used a weapon of any kind during the commission of the crime.

At the time of sentencing the trial judge stated that defendant’s record was entirely free of felony convictions. He sentenced the defendant to a term of not less than ten nor more than twenty years in the penitentiary, informing him at the same time that he could then be cured of his alcoholism. The defendant was 28 years of age at the time and employable.

Under the circumstances, we believe there should be a substantial reduction in defendant’s sentence. Accordingly, the judgment and sentence of the circuit court of St. Clair County are hereby modified and defendant’s sentence is reduced to a minimum of the time already served in the penitentiary on his present conviction, thus making him eligible for immediate parole. As so modified the judgment is affirmed.

Judgment affirmed as modified.

EBERSPACHER and CREES, JJ., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER.

text:
    Vidas Yuden, et al., Plaintiffs and Counter Defendants-Appellees, v. Richard Binkowski, et al., Defendants and Counter Plaintiff-Appellants.
    (No. 53775;
    First District
    August 27, 1971.
    Robert E. Cherry, of Chicago, for Defendants and Counter Plaintiff s-Appellants.
    Jacobs, Lieberman & Aling, of Chicago, (Eugene Lieberman, of counsel,) for appellee.
   Opinion by

Mr. PRESIDING JUSTICE EBERSPACHER.


author: Mr. JUSTICE BURMAN

text:
    Brunhild Towers, Inc. a/k/a Murray Hill Drive Apartments, Plaintiff-Appellee, v. Harry F. Chaddick, et al., Defendants-Appellants.
    (No. 54310;
    First District
    September 15, 1971.

      Rehearing denied October 13,1971.

      Richard L. Curry, Corporation Counsel of the City of Chicago, (Marvin E. Aspen, Edmund Hatfield and Harvey N. Levin, Assistant Corporation Counsel, of counsel,) of Chicago, for appellants.
    Levin & Novoselsky, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The plaintiff, Brunhild Towers, Inc., instituted this action under the Administrative Review Act to set aside an order and decision made by the Zoning Administrator of the City of Chicago and affirmed in a resolution of the Zoning Board of Appeals which directed the corporation to discontinue the use of a 40-car open air parking lot because the lot did not conform with the surfacing requirements of the Chicago Zoning Ordinance. The circuit court, after considering the complaint, the answer thereto, which consisted of the entire record of proceedings before the Zoning Board of Appeals, and the argument of counsel, reversed. The zoning administrator, the members of the zoning board of appeals, and the City of Chicago appeal.

The plaintiff is the owner of real estate located on the west side of Marine Drive between Montrose Avenue on the north and Junior Terrace on the south in Chicago, Illinois. A 17-story apartment building which contains 92 apartments and which has parking facilities for about 80 automobiles, is located on the southern portion of the property; and an open air parking lot with a capacity of storing about 40 cars is located next to the apartment building on the northern part of the property. The parking lot, which is the subject property, faces both Marine Drive and Montrose Avenue, is fully enclosed by a cyclone fence and has no entrance or exit directly onto the public ways. It is covered with a hard surface composed of stone and cinders which have been rolled over. It is located in an R7 General Residence District.

On April 27, 1967, the Zoning Administrator served notice upon the plaintiff to discontinue the use of the parking lot because it was not improved with a macadam base and surfaced with asphaltic concrete or other comparable all weather dustless material, as required by the Chicago Zoning Ordinance; and on May 2, 1967, he entered an order finding that the lot was improperly surfaced.

The plaintiff appealed to the zoning board of appeals which, after conducting a full hearing, affirmed the decision of the zoning administrator and made the following findings: “* * * that in this case the appellant [plaintiff] provides off-street parking in excess of the requirements of an R7 District; that the public parking facilities provided by the applicant are in excess of the 25% allowed under Section 7.12 (1) of the zoning ordinance; and further, that the location of the parking lot in relationship to Lincoln Park and the surrounding residential neighborhood requires that the applicant comply with Section 7.12(8)b of the zoning ordinance * * *

Section 7.12(8)b, which was added to the Chicago Zoning Ordinance in 1957 as a part of a comprehensive amendment, provides with reference to the surfacing of open air off-street parking facilities in residence districts as follows:

“Off-street parking spaces accessory to uses allowed in Residence Districts shall be provided in accordance with the regulations set forth hereinafter as well as in Article 5, General Provisions, Sections 5.8 — 1 to 5.8 — 6.
(8) Design and Maintenance.
b. Surfacing. All open off-street parking areas, except a single parking space accessory to a one family dwelling, shall be improved with a compacted macadam base, not less than four inches thick, surfaced with asphaltic concrete, or some comparable all-weather dustless material.

The plaintiff does not dispute the fact that the surface of. its parking lot fails to conform with the requirements of section 7.12(8)b, however, it does contend that since its use of the property as a parking lot was lawfully established long before 1957, the property is not subject to section 7.12(8)b. It is argued that the parking lot as surfaced constitutes a non-conforming use.

At the hearing before the Zoning Board of Appeals, A. F. Jaworek, the secretary of Brunhild Towers, Inc., testified that the corporation purchased the parking lot in 1944 and that the lot prior to its acquisition had been used for the parking of cars owned by tenants of Brunhild Towers. He further stated that the general public had never been permitted to bring in cars for parking. In response to a question from the chairman of the Board he clarified his statement concerning the exclusion of the general public from the lot, “What I mean by that is, nobody from the outside; they mostly are tenants or employees, or guests that are allowed to come in.” It was then brought out that about 20 spaces were rented out at the rate of $15.00 per month each to persons not residing in the apartment building and that the corporation did not have a license to operate a public garage. It was not clear from the testimony whether the spaces were rented out both in the building and in the outdoor lot or just in the outdoor lot.

A use of land established prior to the comprehensive amendment which becomes non-conforming by reason of the passage of the amendment may continue with limitations not relevant here provided that the use is not changed to one which is prohibited in the district where the land is located. (See Chicago Zoning Ordinance, sections 6.2, 6.6, and 6.6—3.) The questions to be determined, therefore, are (1) whether plaintiffs use of the subject property was lawfully established prior to the adoption of the amendment and (2) whether that use continued unchanged.

When the subject property was purchased in 1944, it was located in an apartment house district. Apartment buildings with more than two units, in districts of this type, were required to have facilities for parking in a private garage or in an automobile compound for every third unit in the building.

(See section 8(2) of the Chicago Zoning Ordinance.) An automobile compound was defined as “[a]ny land area located on the lot on which any residence is located, * * * used or intended to be used for the storage of the private passenger automobiles of the occupants of the residence * # See section 2 Chicago Zoning Ordinance.

When the comprehensive amendment was passed in 1957, the subject property was included in an R7 General Residence District. Apartment buildings in R7 Districts like apartment buildings in the former apartment house districts were required to provide parking facilities. These were to be used primarily by the occupants of the apartment building, but under section 7.12(1) 25 per cent of the required spaces could be rented to persons not residing in the building.

Subsequent to 1957, the plaintiff rented parking spaces in the subject property to non-residents of Brunhild Towers, and at the time of the hearing before the Zoning Board of Appeals approximately 20 spaces were rented to outsiders on a monthly basis. This use of the subject property was unlawful (1) because the plaintiff did not have a license to operate a public garage and (2) because more spaces were rented to occupants of other buildings than was permitted in the zoning ordinance.

Section 156 — 15 of the Municipal Code of Chicago provides that “[n]o person shall engage in the business of a public garage without first having obtained a license therefor.” A public garage is defined in section 156 — 13 as “* * * any building, structure, premises, enclosure, or other place except a public way, within the City, where two or more motor vehicles are stored, housed, or parked for hire, in a condition ready for use, or where rent or compensation is paid to the owner, manager, or lessee, of the premises for the housing, storing, sheltering, keeping, or maintaining of such motor vehicles.” The plaintiff leased 20 spaces in its parking lots at the rate of $15.00 per month and collected approximately $300.00 each month. It did not have a license to operate a public garage, and it was therefore renting spaces in violation of section 156 — 15.

The plaintiff, in addition, as found by the Zoning Board of Appeals, was renting more spaces to the public than is permitted under the Zoning Ordinance. In R7 Residence districts owners of multiple family dwellings are required by section 7.12 — 3(2) to provide “parking spaces equal in number to 60 per cent of the number of dwelling units (exclusive of efficiency units) and 40 per cent of the number of efficiency units * * and they may rent out to the public 25 per cent of the required spaces pursuant to section 7.12(1). The record shows that the plaintiff’s apartment building contains 92 units, but it does not indicate whether any of those units are efficiencies. We shall assume the facts most favorable to the plaintiff and presume that none of the units are efficiencies. The number of parking spaces required for the building would be equal to 60 per cent of the number of units (60 per cent of 92) or 55. The number of spaces that could be rented out to the public on a monthly basis would be 25 per cent of the required spaces (25 per cent of 55) or 14. The plaintiff in renting 20 parking places on a monthly basis was thus renting more spaces than authorized in the Zoning Ordinance.

Since the plaintiff (1) by operating a public garage without a license and (2) by leasing more spaces to the public than permitted in the Zoning Ordinance changed the use of the subject property it lost any right that it might have had to operate an improperly surfaced automobile compound as a non-conforming user. It is therefore subject to the surfacing requirements of Section 7.12(b)b. The evidence supports the finding of the Board of Zoning Appeals, and the findings justify the affirmance of the order and decision of the Zoning Administrator.

It is also argued that the issue of whether the plaintiff provided public parting facilities in excess of the requirements of the Ordinance was not properly raised before the Board of Zoning Appeals. The plaintiff’s defense to the order of the Zoning Administrator was that the property as surfaced constituted a non-conforming use. Evidence that the subject property was being used as a public garage was relevant to the question of whether the plaintiff had established and maintained a non-conforming use, and such evidence was, therefore, properly admitted and considered by the Board of Zoning Appeals.

The plaintiff further contends that Section 7.12(8)b is inapplicable to the parting lot which was constructed prior to 1957 because of section 5.8—1(1) which provides: It is argued that the effect of the first sentence of this Section is to limit the scope of the off-street parking and loading provisions of the Ordinance only to structures erected and uses established after the effective date of the comprehensive amendment. We are not persuaded by this argument because it is clear that the Section applies only to accessory parking and loading facilities for structures erected and uses of land established after the effective date of the comprehensive amendment.

(1) For all buildings and structures erected and all uses of land established after the effective date of this comprehensive amendment, accessory parking and loading facilities shall be provided as required by the regulations of the districts in which such buildings or uses are located. However, where a building permit has been issued prior to the effective date of this comprehensive amendment, and provided that construction is begun within one year of such effective date and diligently prosecuted to completion, parking and loading facilities in the amounts required for issuance of said building permit may be provided in lieu of any different amounts required by this comprehensive amendment.

We must note that the surfacing requirements of section 7.12(8)b were included in the comprehensive amendment in part as a measure to control dust pollution and that a municipality has extensive power to pass ordinances for the health, safety, and welfare of tire public which are applicable to existing structures and uses provided that the public welfare requires such application and that property owners do not suffer unreasonable exaction as contrasted with the resulting public benefit. See: City of Chicago v. Miller, 27 Ill.2d 211, 188 N.E.2d 694, (Ordinance imposing requirements with respect to the ventilation of kitchens, the sufficiency of sanitary facilities, the venting of certain plumbing fixtures, and the fire-resistant qualities of the walls, partitions, and doors held applicable to buildings built before the effective date of the ordinance), and Abbate Bros. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691 (Ordinance requiring the safety devices in all elevators held applicable to elevators installed and placed into operation before the passage of the ordinance.)

The parking lot in the instant case was covered only with rolled stone and cinders, and the Zoning Administration apparently considered that this surface was inadequate to insure the anti-pollution protection necessary in high density residential areas. The resurfacing of the plaintiff’s lot will contribute in a small way to a lessening of the amount of pollution in the atmosphere.

For the reasons stated the judgment of the circuit court is reversed.

Judgment reversed.

ADESKO, P. J., and DIERINGER, J. concur.

       “6.2 Any non-conforming use, building or structure which existed lawfully at the time of the adoption of this comprehensive amendment and which remains non-conforming, and any such use, building or structure which shall become nonconforming upon the adoption of this comprehensive amendment or of any subsequent amendments thereto, may be continued, some for specified and respective periods of time, subject to the regulations which follow.”

       “6.6 The non-conforming used of land not involving a structure or building, or in connection with which any building or structure thereon is incidental or accessory to the principal use of the land, may be continued, * * *.”

       “6.6 — 3 Change of Use. The non-conforming use of land shall not be changed to any other use except to a use permitted in the district in which the land is located.”

       "SECTION 8. Apartment House districts. Permitted uses in Apartment House districts are:
      (2) Apartment house, provided that where there are more than two apartments in the building a private garage or automobile compound for the storage of one passenger automobile for each of 33 per cent of the number of apartments shall be erected or established and maintained on the lot used for the apartment house; * * *.”

       “Except as may otherwise be provided for parking of trucks in the grantng of special uses, required accessory off-street parking facilities provided for uses listed herein shall be solely for the parking of passenger automobiles of patrons, occupants, or employees of such uses, provided that in an R4, R5, R6, R7, or R8 District, not more than 25 percent of the accessory parking spaces required for a dwelling, lodging house, or a hotel may be rented out on a monthly basis to occupants of other dwellings, lodging houses, or hotels."

       See previous footnote No. 5.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Moses Clay, Defendant-Appellant.
    (No. 53866;
    First District
    September 23, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (John T. Moran, Jr., Assistant Public Defender, of counsel,) for Moses Clay.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Martin Moltz, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Moses Clay, was convicted by a jury of rape and armed robbery. He was sentenced to serve twenty to thirty years for rape and three to six years for armed robbery, with the sentences to run concurrently. He does not question the sufficiency of the evidence proving his guilt but he does contend that the jury’s verdict was influenced by prejudicial trial errors.

Shortly before 10:00 P.M. on April 16, 1968, the complainant, who lived alone in her apartment, was working in the kitchen. She heard the outside screen door banging and a noise on the back stairs. She observed a figure coming down the steps but she could discern no more as there was no exterior lighting. She called out, but there was no response. After making sure the inside door was locked, she again heard the screen door bang softly. As she looked in the direction of the sound, the inside door was forced open “with one loud crack.” The defendant, Moses Clay, stood in the doorway.

The complainant ran into her living room screaming for help. Clay followed her. She ran to the telephone and attempted to dial the operator. Clay grabbed the telephone and, as she tried to run by him to escape out the back door, seized her and struck her in the head and face four or five times. She could taste blood in her mouth, and she asked him to stop hitting her. He demanded money which she gave him. He then placed two kitchen cabinets in front of the kitchen door and ordered her to remove her clothes. She protested and he struck her repeatedly with his fist. As she still did not comply, Clay ran to the kitchen and returned with a knife, seized her, made stabbing gestures at her chest, and threatened to kill her. Thereupon, she removed her clothes and he had intercourse with her. Following this act, he took some change from her purse and an amethyst and pearl ring from the top of her dresser. After apologizing for hurting her and stating that he should tear the telephone out of the wall, he left the apartment.

The complainant immediately telephoned her mother, told her of the rape and asked her to come to her home. The police were summoned, and Clay’s fingerprints were found upon one of the kitchen cabinets.

The defendant, who was permitted to cross-examine the complainant extensively, contends that the trial court erred in refusing to recall her to the stand for further cross-examination upon his counsel’s representation that he had new information that she was an alcoholic and had been under psychiatric care. Although the court initially refused the request, the complainant was later summoned to the corut’s chambers and examined by the defendant’s counsel, the assistant State’s attorney and the court. While testifying in the courtroom she had been asked whether she drank any alcoholic beverage on the evening of the rape. She replied that she had not. In chambers she corrected this by stating that she used a little bit of wine, maybe half an ounce, in preparing her supper. She informed the court that she voluntarily attended a psychiatric clinic, without being referred for treatment by her doctor, but that she had ceased doing so in January 1968. Under questioning by defense counsel she testified that she had had no psychiatric treatment and had not attended a class or clinic subsequent to April 16, 1968. The complainant identified the clinic she had attended, stated that she had never been treated for a mental disease or defect and had never been committed to a mental institution. She further asserted that she had never been an alcoholic and had undergone no treatment for alcoholism. The court stated that it was satisfied that she was not under psychiatric treatment at the time of the alleged offense and that she was not an alcoholic. The defense counsel, who had said he would make an offer of proof and would support his claims by credible evidence, thanked the court, made no offer of proof and the complainant was excused.

The latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court, and a reviewing court will interfere only where such discretion has been clearly abused. (People v. Nugara (1968), 39 Ill.2d 482, 236 N.E.2d 693; People v. Halteman (1956), 10 Ill.2d 74, 139 N.E.2d 286.) In the present case, the court made certain that the complainant had neither a drinking nor an emotional problem. After her testimony in chambers, the defense counsel did not offer to prove otherwise. Further inquiry in front of the jury concerning her past mental condition or supposed alcoholism would have served merely to humiliate the complainant or to implant suspicion about her in the jury’s mind by insinuation. Questioning for this purpose has been disapproved by this court. (People v. Haygood (1965), 60 Ill.App.2d 70, 208 N.E.2d 373; People v. Payton (1967), 82 Ill.App.2d 51, 227 N.E.2d 87.) The court did not err in refusing to recall the witness for further cross-examination.

The defendant next asserts that he was substantially prejudiced when the court informed his counsel in front of the jury that the questions he was asking were confusing “the jury and the court and the witness.” The court made this statement after the following series of questions had been asked:

“How much longer was that that he first * * * that he got the knife or rather your knife out of the kitchen, when was that? . . . Was that about one minute, two minutes, three minutes, four minutes, five, six or seven minutes that this occurred? * * * Which specific minute was it in time?”

The complainant stated she did not understand the questions and the court interpolated, “Neither does the court.” The attorney then asked: “At the time that he first showed you the knife, this knife from the kitchen, approximately what time in length of time?” The court remarked that the question was perplexing and should be rephrased. If a question or an answer appears confusing, it is the trial court’s right and duty to make certain the matter is clarified. (People v. Gaston (1967), 85 Ill.App.2d 403, 299 N.E.2d 404.) The comments of the court were intended solely to make certain that the witness, the court, and the jury understood the nature of the question propounded. The comments were not prejudicial to the defendant. Also, the defendant was not prejudiced when, following his counsel’s statement at the conclusion of the State’s case that “the defense is calling no witnesses,” the court remarked: “All right, let the record show that Mr. Smith, attorney for defendant, has no witnesses to call.” The comt’s remark was little more than a repetition of the attorney’s own words and indicated no bias against the defendant.

The defendant claims that inflammatory statements in the prosecutor’s closing argument denied him a fair and impartial trial. He complains that the prosecutor characterized him as a rapist, an animal, a clown and a dummy. Much of this was in response to the defense attorney’s argument that the defendant was only a burglar, a “cat-burglar,” and that the rape was unpremeditated. The defendant also complains that the prosecutor stated that a rape of this kind — having taken place in the privacy of a home after a locked door had been kicked open — could have been committed upon any woman of the jury or upon the male jurors’ wives and daughters. The defendant’s attorney admitted in his closing argument that the complainant had been raped, and on appeal there is no quarrel with the identification of the defendant as the perpetrator of the crime. The undisputed evidence of the defendant’s guilt minimizes the possibility that the prosecutor’s characterizations of the defendant or his other remarks could have influenced the jury’s verdict. Improper remarks do not constitute reversible error unless they result in substantial prejudice to the defendant. (People v. Phillips (1970), 126 Ill.App.2d 179, 261 N.E. 2d 469.) Furthermore, no objection was made to any of the remarks now asserted to be reversible error. An objection to an allegedly prejudicial argument will ordinarily not be considered on appeal unless it was first made at the trial. (People v. Fort (1970), 119 Ill.App.2d 350, 286 N.E.2d 63.) However, pursuant to Illinois Supreme Court Rule 615(a), “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” After examining the record and all the prosecutor’s remarks in context, we conclude that most of them constituted legitimate rebuttal argument and none of them affected the defendant’s substantial rights.

On the other hand, we do not condone the prosecutor’s remark criticizing the defendant’s attorney: counsel uses the expression ‘dummy’ and that may be the only truthful thing that he said * * Although the defendant’s attorney referred to the State’s case as “a big blow-up,” the implication that he was deliberately attempting to deceive the jury by untruthful statements must be disapproved.

During oral argument in this court the defendant was permitted to supplement his brief with the additional argument that the evidence was insufficient to prove him guilty of armed robbery. Although the defendant was unarmed when he burst into the complainant’s apartment and when he took her money, he subsequently secured a knife, threatened her with it and, following the rape, stole her ring and some change from her purse. The fact that he did not have the knife in his hand when he took these objects does not alter the crime. The evidence was sufficient to sustain the conviction for armed robbery.

Finally, the defendant urges this court to reduce the twenty to thirty year sentence he received for the rape. He was eighteen years old at the time of the offense and he asserts that because of his age and what he terms the spontaneous sexual passion which provoked the assault, the sentence is out of proportion to the crime and to sentences in similar cases. The rape was not promoted by a sudden surge of passion, and if it were it would not mitigate its gravity. The rape was deliberate. The defendant stayed outside the complainant’s home until he was sure that she was alone. After breaking in he took her money. He then barricaded the kitchen door, beat her with his fists, prodded her with a knife and threatened her with death. The crime was brutal. The complainant was beaten when she tried to escape and when she resisted his advances; she was menaced with the knife when she refused to remove her clothing. When the assault ended she was bleeding from her mouth, nose and ear. In view of the serious nature of the crime and the savagery with which it was committed it would be inappropriate to modify the sentence imposed.

The judgment is affirmed.

Judgment affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    Frederick J. Bertram, et al., Plaintiffs-Appellants, v. Brandt W. Berger, et al., Defendants-Appellees.
    (No. 54030;
    First District
    September 24, 1971.

      Frederick J. Bertram, of Chicago, for appellants.
    Berger, Newmark & Fenchel and Carl A. Schoeneberger, all of Chicago, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of this court:

Plaintiffs appeal from a judgment order denying their motion for summary judgment and allowing the motion of the defendants for summary judgment and dismissing plaintiffs’ cause of action. The suit revolves around the action of St. Pauls House transferring real estate by deed to Grace Convalescent Home and making an outright gift of $100,000 to Grace. Both corporations are Illinois charitable corporations. The basic issues are twofold: (1) Is the action of St. Pauls ultra vires and (2) is there a genuine issue of a material fact which precludes summary judgment. No evidence was taken in the trial court and the case was submitted on the pleadings, respective motions and supporting affidavits. Both questions we answer in the negative and affirm the judgment of the trial court.

Plaintiffs are corporate members of St. Pauls House. The defendant, Berger, as president of St. Pauls House and the defendant, Zurffi, as secretary, executed the quit claim deed conveying a substantial portion of the real estate of St. Pauls House to Grace. Ervin F. Baur is a director of St. Pauls and also a director and president of Grace and as an architect has a contract with Grace for the construction of the buildings and improvements planned by Grace. St. Pauls House, as a corporation, asked and was granted leave to intervene as a party-defendant and filed an answer.

Since 1949, the charter purpose or objective of St. Pauls House is “to provide and operate a churchly home for the aged and to engage in other churchly and charity work (not to include the care of neglected or dependent children”. Prior to 1949, its charter read “To provide and operate a churchly home for the aged”. The charter purpose of the Grace Convalescent Home is “to provide and operate as a not-for-profit corporation a churchly home for the nursing care of aged and chronically ill persons without discrimination on account of race, creed or color”. We turn first to the question of ultra vires for if either or both of the actions of St. Pauls in transferring property to Grace is ultra vires as a matter of law, we are at the end of our inquiry as to such transaction or transaction and the judgment of the trial court should be reversed as to one or both. At the outset we should make the observation that the cy pres doctrine has no application here. That doctrine contemplates that a court will decree that property which can no longer be applied to a specific purpose selected by the donor or donors will be applied instead to some different purpose as near as may be to the one which the donor or donors selected within the scope of their general charitable intent. Here there is no specific purpose of St. Pauls that cannot be carried out and the cy pres doctrine is not applicable. (Holden Hospital Corporation v. Southern Illinois Hospital Corporation, 22 Ill.2d 150, 174 N.E.2d 793; Kelly v. Guild, 42 Ill.App.2d 143, 191 N.E.2d 377.) Moreover, trustees cannot without the aid of a court make the cy pres doctrine applicable to an estate in their charge. 14 C.J.S. Charities, § 52, p. 519.

“Assets held for a charitable * * * use * * * shall be transferred or conveyed to one or more domestic or foreign corporations, societies or organizations engaged in activities substantially similar to those of the dissolving or liquidating corporation as the court may direct.” (Ill. Rev. Stat. 1967, ch. 32, par. 163a 54.) This applies to a liquidation of such corporate assets by a court and involves a dissolution of the corporation. Thus, where all of the assets are to be disposed of and the corporation dissolved, there is a statutory limitation. What statutory limitations, if any, are there upon the disposal of only a part of the corporate assets of a charitable corporation? It would seem logical that if it is the policy of the law in dissolution to assure that the assets are to be employed in activities “substantially similar” to those of the dissolving corporation, then a like philosophy would apply to a disposition of a part of the assets of such a corporation. It should also be noted that Holden states at p. 161 that “there is no provision for evading this standard by means of a by law”.

Not-for-profit corporations generally have the power “(e) to sell * * * and otherwise dispose of all or any part of its property and assets” and (1) to make donations in furtherance of any of its purposes * * (Ill. Rev. Stat. 1967, ch. 32, § 163a 4(e) and (1).) In (n) of the same statute, such corporations are given the power “to have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized”. It seems to us that it would be a semantical abuse of common sense and plain English to deny that the addition of the words “to engage in other churchly and charity work” was intended to enlarge the scope of the original charter powers. We have some difficulty in restricting the term “aged” to those who are physically well and able-bodied and eliminate from its meaning those who are sick or physically or mentally incapacitated. It would appear clear that the 1949 amendment to the charter powers mandates a liberal rather than restricted interpretation of the word “aged”. In Illinois, a convalescent home may be a charitable institution. (Rubel v. Friend, 344 Ill.App. 450, 101 N.E.2d 445.) Indeed one of the arguments that the appellants present is that if St. Pauls wants to provide for a convalescence wing to its existing facilities, they may do so and that it is the more appropriate method of accomplishing the purpose of aid to the convalescent aged of St. Pauls. It would therefore seem to be the thrust of the appellants' argument that care for the convalescent aged is not ultra vires if done by St. Pauls itself, but is ultra vires if attempted through a subsidiary corporate entity.

Just what will be the relationship between St. Pauls and Grace? These uncontradicted facts appear from the record. (1) St. Pauls Home for the aged and Grace Convalescent Home will be connected by an underground passage affording all-weather access from one building to the other for the residents and personnel of both buildings; (2) the by-laws of Grace provide that there shall be fifteen members of its Board of Directors be changed, shall be nominated by the Board of Directors of St Pauls and two gf whom “shall be members of such Board of Directors”; (3) the proviso in the preceding paragraph “may be changed or amended only with the consent of St. Pauls House Corporation”; (4) that an agreement dated July 20, 1965, between St. Pauls and Grace provided that the real estate should be conveyed by St. Pauls to Grace “upon the express condition that said real estate will be used solely for the erection and operation of a churchly home for the nursing care of aged and chronically ill persons and for no other purpose or purposes whatsoever and (2) that if said real estate is used for any other purpose or purposes, Grace Convalescent Home hereby agrees that the title to said real estate shall revert to and be forfeited to St. Pauls House”; (5) paragraph four of this same contract provides that the covenant for reverter of title shall be taken to be a covenant running with the land in favor of the grantor and that the grantor shall be authorized to enforce in its own right and name, and its successors and assigns, all remedies afforded by law whereby the grantor, its successors and assigns, may enforce said covenants and restrictions or prevent infractions thereof or may recover all lawful damages suffered by it by reason of such infractions; (6) after the filing of this suit in 1969, an agreement was entered into whereby Grace agreed to give “first preference for nursing care to residents of St. Pauls House; and in the event that any time thereafter the nursing home is completely occupied and there are no immediately available beds or rooms available for residents of St. Pauls, it will make available to such residents in St. Pauls nursing house care from Grace Convalescent Home until such time as occupancy can be made available for such residents”. It is not disputed but that St. Pauls has had difficulty in placing its residents who become ill in convalescent homes.

It will be noted from the above-connecting links that we have overlapping directorates. In this connection Nagel v. Northern Ill. Gas Co., 12 Ill.App.2d 413, 139 N.E.2d 810, becomes apropo. In that case it is stated “no presumption of want or gross inadequacy of consideration arises from the fact that ten of the seventeen directors of Edison were also ten of the eleven directors of Northern”. In White v. Stevens, 326 Ill. 528, 533, 158 N.E. 101, 103, the court said:

“It has also been repeatedly held that corporations having one or more common directors may contract with each other if the contracts are fair and reasonable. There is no presumption in such case that the contract is unfair or oppressive but the person attacking it must prove its unfairness.”

“These directors were elected to each board by Edison and it may be assumed that they were concerned primarily in serving Edison, the company that chose them. Bresnick v. Franklin Capital Corp., App. Div. 1950, 10 N.J. Super. 234, 77 A.2d 53, affirmed 1951, 7 N.J. 184, 81 A.2d 6. (Nagel v. Northern Ill. Gas. Co., 12 Ill.App.2d 413, 139 N.E .2d 810.) From the control and the supervision which is demonstrated by these facts and these contracts, it would seem that St. Pauls has taken appropriate steps to protect its property and ensure that its assets will not be dissipated. Indeed it would appear to us on the surface arguendo that the same amount of property and the same $100,000 might appropriately be expended by St. Pauls in an annex without even the appellants considering it ultra vires or a breach of trust.

Aside from the mere fact that the defendant Baur was at one and the same time a director in St. Pauls and a president of Grace and employed by Grace as the architect for the construction of the planned convalescent home, there is no suggestion in this record of double dealing, unfairness or impropriety. It does not appear that Mr. Baur has exercised the power and the influence and control over St. Pauls as did Ryan in Geddes v. Anaconda Copper Mining Co., 254 U.S. 590 or Mr. Englestein in Shlensky v. South Parkway Building Corp., 19 Ill.2d 268, 166 N.E.2d 793.

Having read with care Northwestern University v. Wesley Hospital, 290 Ill. 205, 125 N.E. 13; Rush Medical College v. University of Chicago, 312 Ill. 109, 143 N.E. 434; and Eaton v. Woman’s Home Missionary Society, 264 Ill. 88, 105 N.E. 746, we believe that the principles stated in these several cases control in supporting the action of St. Pauls in this case.

The appellants also suggest that this is not a case for summary judgment. We would point out that both sides joined in the motion for summary judgment and that at that time at least both sides felt that there was no genuine issue of any material fact. While not necessarily bound forever by the position then taken, it is at least persuasive. There are issues as to what may be regarded as immaterial facts, but the facts stated in this opinion are not in dispute and are controlling.

During oral arguments, the court raised the question as to whether or not the attorney general of this State was an indispensable or necessary party and requested briefs. The attorney general was invited to intervene and did not do so. Both parties agree that the attorney general is not an indispensable or necessary party under the facts in this case and we concur.

Other questions raised on the record have been considered and are without merit. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

GRAVEN and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willard R. Graham, Defendant-Appellant.
    (No. 70-87;
    Third District
    October 15, 1971.

      Theodore A. Gottfried, of Defender Project, of Ottawa, for appellant.
    James N. DeWulf, State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This cause was initiated by a two-count indictment against defendant Willard R. Graham and a Norman L. Sproston, charging them both with the crimes of Conspiracy and Attempted Burglary. Sproston pleaded guilty to the charge of Attempted Burglary and the Conspiracy charge against him was dismissed. He was sentenced to a term of one (1) to three (3) years. Defendant, however, proceeded to trial in the case. As a result of the trial, a jury returned verdicts of guilty on both counts and judgments were entered thereon. The prosecutor then elected, in response to a motion by defendant, to ask that the sentence be imposed on the Conspiracy count. Defendant was then sentenced to a term of not less than two (2) nor more than ten (10) years.

On appeal in this case, it is contended by the defendant that the State failed to prove the elements of Conspiracy or of Attempted Burglary. It is also contended that the sentence imposed for the crime of Conspiracy is contrary to the law.

From the record in the cause, it appears that at approximately 8:00 P.M. on November 24, 1969, defendant and the co-defendant left a tavern in Davenport, Iowa, where defendant had asked another man if defendant could borrow his automobile to go to Rock Island. He told the owner of the automobile that he would be back in 45 minutes. Defendant then transported himself, the co-defendant, defendant’s wife and another man to Rock Island. Defendant’s wife was dropped off at her home and the other man was dropped at a tavern. Defendant and co-defendant then proceeded in the automobile to Taylor Ridge. When they arrived at Taylor Ridge they rode back and forth several times on a road which was in front of the Oscar Mayer plant, and finally the co-defendant Sproston got out of the car and attempted to break into the building.

In the meantime, defendant continued to drive back and forth and finally drove to a nearby gas station (which was closed) and pulled into the driveway so that the vehicle was facing the Oscar Mayer plant next door. The headlights were then turned out and defendant waited at this place. While defendant was sitting in the vehicle for a period of two or three minutes, the owner of the station, who had been working on a vehicle inside, came out in response to a telephone call from a neighbor who lived across the street. The neighbor had been observing the vehicle going back and forth in front of his home for approximately 15 minutes to a half an hour. The owner of the station asked the defendant what he wanted. He told the station owner that he had hit a curb with the front end of the vehicle and inquired if it could be fixed. (The owner of the car testified that there was nothing wrong with the automobile after the vehicle was returned to him). The station owner told defendant he could not fix it but to try the service station in the next town. The station owner himself had been watching the vehicle go back and forth, also, and he asked defendant about the friend he had dropped off in front of the Oscar Mayer plant. Defendant answered that he had not let anybody out, but then stated that it had only been a hitchhiker that he had let out of the car. The station owner got the license number of the vehicle as defendant drove off.

Thereafter, the station owner made an investigation at the Oscar Mayer plant next door which resulted in the apprehension by him of the co-defendant Sproston found hiding in the weeds. A tire iron was found in the same vicinity and several pry marks were also found on the rear door of the building.

As the station owner returned to the station with the co-defendant, he saw defendant’s vehicle going past again. A neighbor across the street had called the sheriff and two sheriff’s deputies had arrived at the station when defendant’s car was observed driving past the station. When the deputies were informed that this was the same vehicle which had been going back and forth earlier and of which the station owner had taken the license number, the deputies stopped the car and brought defendant back to the service station. Defendant did not try to escape.

Defendant was asked if he knew the co-defendant who was sitting in the squad car just a few feet away. Defendant replied that he did not know him and had never seen him before. Sproston was in clear view at the time as the other automobile lights were shining into the car. Defendant looked into the squad car when he made his remark. At the trial, the co-defendant testified that he and defendant had known each other at least casually for ten years. The defendant and the co-defendant both testified that defendant knew nothing of Sproston’s plan to burglarize the Oscar Mayer plant.

The first issue for consideration is whether there was sufficient evidence before the court to establish the required elements of conspiracy and attempted burglary. Under the provisions of Ill. Rev. Stat., ch. 38, par. 8—2 (where elements of the crime of conspiracy are set forth) conspiracy is said to exist when a person, with intent that an offense be committed, agrees with another to the commission of that offense. The Act also provides that no person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator. In summary, the requisite elements of the crime of conspiracy would, therefore, be an agreement to commit an offense with the intent that the offense be committed, followed by commission of an act in furtherance of the agreement by either conspirator.

The courts in this State have recognized that while an illegal agreement is the gist of a conspiracy (People v. Nathanson, 389 Ill. 311, 59 N.E.2d 677), it is not necessary to prove the common design which is the essence of conspiracy by direct evidence of an agreement between the conspirators. It is only necessary to show that the alleged conspirators pursued a course tending toward accomplishment of the object of the conspiracy. People v. Perry, 23 Ill.2d 147, 177 N.E.2d 323, certiorari denied 82 S.Ct. 1035, 369 U.S. 868, 8 L.Ed.2d 86.

It is recognized that since the very nature of the crime of conspiracy is clandestine there would be no witnesses to the agreement, and it has been determined that failure of proof of verbal or written communication is not fatal to a conviction, where the acts themselves, subsequent to the alleged conspiracy, inferentially establish the existence of an agreement. (People v. Edwards, 74 Ill.App.2d 225, 219 N.E.2d 382; People v. Brinn, 32 Ill.2d 232, 204 N.E.2d 724.) It is, therefore, the conduct of the parties which may determine whether or not the co-parties were in fact co-conspirators.

The issue then becomes whether or not there was sufficient evidence from which a jury in this cause could base its finding of guilty to the conspiracy charge. The fact that the defendant and the co-defendant testified that defendant knew nothing of the co-defendant’s plans to burglarize the Oscar Mayer plant would not prevent a jury from determining that the testimony of the confessed burglar and the defendant could be disbelieved in light of the clear weight of all the other evidence presented to the jury. In this instance, the jury had the right to believe that the conduct of defendant and the co-defendant Sproston were such as to justify the finding of a conspiracy despite the denials of defendant and the co-defendant. We cannot say that the juiy did not have sufficient evidence upon which to base a verdict of guilty of conspiracy as to defendant, in spite of the testimony of defendant and co-defendant as shown in the record. It is also notable that a person who enters into a conspiracy is deemed to be a party to all acts done by him or any of the other parties in furtherance of the common design. (People v. Walensky, 300 Ill. 92, 132 N.E. 757, 32 Ill.2d 308, 231 N.E.2d 416.) Since the co-defendant Sproston pleaded guilty to attempted burglary and there was sufficient evidence to support the conspiracy conviction, defendant could be held responsible for tire acts of the co-defendant in furtherance of the conspiracy.

On the issue, however, of the sentence, the State confesses error and agrees that the maximum sentence which may be imposed for conspiracy to commit attempted burglary is five (5) years (Ill. Rev. Stat., ch. 38, par. 8—2(c)). On review of the record, therefore, we agree with appellant that the penalty imposed of not less than two (2) nor more than ten (10) years was improper. In view of the entire record and the sentence imposed on Sproston, we agree that the sentence imposed on defendant by the circuit court of Rock Island County was improper. There likewise appears to be no reason why the sentence imposed upon defendant in this cause should be any greater than that imposed on Norman L. Sproston. Accordingly, the sentence imposed upon defendant Willard R. Graham is vacated and modified in this court to a sentence of not less than one (1) nor more than three (3) years. The judgment of conviction of conspiracy as to defendant is affirmed.

Affirmed in part and sentence modified.

STOUDER and SCOTT, JJ„ concur.


author: Mr. JUSTICE STOUDER

text:
    Lois Swanson, (Lois Winterbottom), Plaintiff-Appellant, v. Harold E. Swanson, Defendant-Appellee.
    (No. 70-195;
    Third District
    October 21, 1971.

      Winstein, Kavensky & Wallace, of Rock Island, for appellant.
    John A. Bell, of Rock Island, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

In February, 1964, the circuit court of Rock Island County entered a decree of divorce in favor of Lois Swanson, Plaintiff-Appellant, against Harold Swanson, Defendant-Appellee. The decree awarded custody of Carol, the minor daughter of the marriage to plaintiff. In June, 1970, defendant filed his petition seeking modification of the divorce decree and asked that custody of Carol be awarded to him. After hearing the court modified the decree of divorce and granted custody of Carol to the defendant from which order plaintiff has appealed.

The facts are largely undisputed and to the extent relevant to this appeal need only be summarized briefly. Plaintiff and defendant have each remarried and each have established new households in or near the Rock Island County area. At the time of the hearing Carol was 15 years old and had resided continuously with her mother and after her mother’s remarriage with her step-father from the date of the original decree. The court found and the evidence so indicates, that both parents were fit and proper custodians, each had established stable relationships and each parent could and would provide appropriately for the care of Carol.

The evidence is likewise undisputed that Carol is and has been an emotionally well adjusted girl, does well in school, gets along well with her mother and step-father and presented no problems particularly different from those of other girls of her age. In her testimony Carol did indicate that she desired and preferred to live with her father. In attempting to establish some reasons for his preference Carol referred vaguely to arguments between her mother and step-father but could not recall the nature of any such arguments, referred to disagreements regarding restrictions on her conduct by her mother and alluded to the grouchiness of her step-father.

In seeking to reverse the order of the trial court awarding custody of Carol to the defendant father the plaintiff mother argues that the evidence as a matter of law fails to show any change in circumstances supporting the modification order.

Both parties have cited and alluded to cases announcing and applying the general rule applicable to custody cases namely that the welfare of the child is the cardinal consideration in determining the custodial arrangements for such child. Equally axiomatic is the corollary rule that once custody has been decreed it will not be modified unless there are changed circumstances affecting the welfare of the child requiring a modification of the custodial arrangement. Changed circumstances do not in and of themselves authorize changes in custodial arrangements but such changed circumstances must affect the welfare of the child. Remarriage of one or both of the parents while a changed circumstance is not sufficient to authorize modification of a custodial arrangement unless such remarriage affects the welfare of the child. (Jingling v. Trtanj, 99 Ill.App.2d 64, 241 N.E.2d 39.) In the case at bar each parent has remarried but neither defendant nor the trial court have indicated how or in what manner such remarriages have any adverse effect on the existing custodial provision awarding custody of Carol to her mother. In fact the evidence appears undisputed that the relationships between mother, daughter, father and new spouses has been one conducive to Carol’s welfare.

This brings us to Carol’s stated preference to discontinue living with her mother and step-father and live with her father and step-mother. A review of the evidence together with the trial court’s observations reveals that Carol’s preference appears to be the only basis for modifying the custodial arrangement.

Although the preferences of a minor child are important factors to be considered in custodial arrangements the court is not bound to follow such wishes. (Stickler v. Stickler, 57 Ill.App.2d 286, 206 N.E.2d 720.) As indicated in Elble v. Elble, 100 Ill.App.2d 221, 241 N.E.2d 328, the wishes and preferences of the child standing alone do not warrant changing custodial provisions previously established. In Stickler v. Stickler, supra, a case in which the facts are strikingly similar to those in the case at bar, the court discusses the subject of a child’s preferences at length and concludes that such preference is insufficient to warrant a transfer of custody.

Marcus v. Marcus, 109 Ill.App.2d 423, 248 N.E.2d 800, cited by defendant and referred to by the trial court, insofar as it has any relevancy to the issues of this case is contrary to the result reached by the trial court. In the Marcus case a 14-year-old boy expressed strong preferences to continue living with his grandmother rather than being willing to leave his grandmother’s and live with his mother. It should be observed that in the Marcus case the court of review decided in favor of continuity of the custodial relationship between grandmother and son in accord with his preference, but more importantly concluded that such relationship was for his best interest because of a myriad of other circumstances.

In the case at bar Carol’s preference to start living with her father is not supported by any reasons suggesting that such change or preference is for her best interest. In fact the evidence indicates the contrary. Although the plaintiff and defendant had prior disagreements regarding visitation it appears that defendant’s reason for seeking a modification of the decree was principally because his daughter wanted him to do so. Furthermore it appears that her desire was precipitated in large measure by her mother s refusal to let her go on a vacation to California with the defendant. It is also difficult to avoid the conclusion from the evidence that to some extent Carol at her age was feeling some resentment or irritation at what she believed to be undue restrictions and believed that fewer limitations would be imposed if she became a member of her father’s household. Such feelings are not uncommon.

It is our conclusion that the desires and preferences of a child for change in custodial arrangements is only appropriate when based on reasons related to a child’s best welfare. Where such reasons are absent as we believe they are in the instant case, the child’s preference is not an appropriate basis for modifying the custodial provisions in a decree.

For the foregoing reasons the order of the circuit court of Rock Island County modifying the decree of divorce is reversed.

Decree reversed.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Leon King, Defendant-Appellant.
    (No. 11372;
    Fourth District
    November 5, 1971.
    Morton Zwick, Executive Director of Defender Project, of Chicago, (John F. McNichols and Bruce L. Herr, of Defender Project, of Springfield, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (James R. Burgess, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of deviate sexual assault. (Ill. Rev. Stat. 1969, ch. 38, par. 11—3.) Sentence of 5 to 14 years was imposed. He appeals.

The events at issue occurred in the Champaign City Jail. The defendant was charged under municipal ordinances with (1) fighting and (2) indecent conduct. Defendant pleaded guilty to fighting on December 2, 1968. Thereafter evidence was heard on the charge of indecent conduct and the case taken under advisement. The record shows that on December 19, 1969, the city attorney in open court moved to strike the cause for the reason “that defendant is serving a penitentiary sentence for the indecent conduct in this cause.” The motion was allowed and the cause was stricken.

The defendant was indicted for deviate sexual assault in January, 1969. Prior to trial, in April, 1969, his motion to bar prosecution on the grounds of double jeopardy was denied.

In oral argument, the prosecution concedes that the indecent conduct of the municipal charge was the same conduct as the indicted charge of deviate sexual assault.

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, held the fourteenth amendment made the double jeopardy provision of the fifth amendment applicable to the States. In People v. Allison, 46 Ill.2d 147, 263 N.E.2d 80 our Supreme Court followed the rule of Benton and reversed a conviction under the Criminal Code following a conviction under a municipal ordinance for the same conduct.

The prosecution argues that Benton was not announced as retroactive, nor did the Supreme Court so determine in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435. The issue has now been resolved and the rule of Benton has been made retroactive. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300.

It has been argued that there has been no conviction of sentence imposed following the evidentiary hearing upon the municipal charges, and that defendant has not been placed twice in jeopardy illegally. Where a criminal charge is heard without a jury, jeopardy attached when the defendant is subjected to a charge and the court has begun to hear the evidence. People v. Laws, 29 Ill.2d 221, 193 N.E.2d 806. In this record, such is the fact.

The judgment of the circuit court is reversed.

Judgment reversed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE DIXON

text:
    The Village of Seaton, Appellant, v. Fred L. Carlson et al., Appellees.
    (No. 71-27;
    Third District
    October 29, 1971.
    Hottle & Spears, of Monmouth, for appeUant.
    James C. AUen, of Aledo, for appeUees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

In this cause the appellant has fully perfected its appeal and complied with all the requirements of the rules of court. Appellee has filed no brief or argument to sustain the judgment. Where such is the case, the judgment may be reversed, without a consideration of the cause on its merits. 2 I.L.P. Appeal and Error, sec. 560; Guerra v. Gilkey, 68 Ill.App.2d 221.

Judgment reversed.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Allen Hanna, Defendant-Appellant.
    (No. 11307;
    Fourth District
    October 8, 1971.
    Matthew J. Moran, of Defender Project, of Chicago, for appellant.
   Opinion by

Mr. PRESIDING JUSTICE SMITH.


author: Mr. PRESIDING JUSTICE SMITH Mr. JUSTICE CRAVEN,

text:
    The Department of Public Works and Buildings, Petitioner-Appellant, v. Ethel Crumbaugh, et al., Defendants-Appellees.
    (Nos. 11335-11350 cons.,
    Fourth District
    October 8, 1971.
    CRAVEN, J., specially concurring.

      ■William J. Scott, Attorney General, of Springfield, (William P. Ryan, Assistant Attorney General, of Springfield, Richard E. Quinn, Special Assistant Attorney General, of Peoria, and William B. Lawrence, Special Assistant Attorney General, of Bloomington, of Counsel,) for appellants.
    Costigan & Wollrab, of Bloomington, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Eminent domain proceeding. The question is a narrow one — evidentiary. It involves the exclusion of evidence. Of course, if such was proper we simply affirm. On the other hand, if improper, we do not necessarily reverse as a second question then arises. Was such error so pervasive that we must assume that the verdict might have been otherwise and thus a new trial the only solution? Before positing the precise point — the question asked, the objection, the offer of proof, the allowance, all of which frame the issue of law — we think it appropriate to set forth the legal context we must work with.

In condemnation proceedings where only part of a given tract is sought, the owner is first entitled to just compensation — that is, the fair cash market value of the part taken for its highest and best use. Now such taking may result in damages to the remainder of the tract. It may also result in benefits — or both. If the remainder is damaged, the owner gets the fair cash market value in money of the difference from what it was worth before and after the taking. We call such severance or consequential damages.

But what if the value of the remainder is greater after the taking than before? In such case the condemnee isn’t required to pay the condemnor, here the Department of Public Works and Buildings, the value of the involuntary benefits. To put it another way, the existence of benefits simply erases its antonym, damages, the condemnor pays nothing and the condemnee gets nothing — not minus zero which would imply payment by him to the condemnor. That is in some respects a “break” for the owner, but then such happenstance was not of his own making, hence, for the condemnee to come up with something for file condemnor would be a bit awkward, to say the least. Now one could say, and some states do, that benefits should be set off against the compensation found due for the land taken thus reducing the overall award, (13 ALR3d 1149, 1197.) but not in Illinois. Department of Public Works and Buildings v. Griffin, 305 Ill. 585, 137 N.E. 523, makes this clear:

“In assessing compensation in eminent domain proceedings for land taken out of a larger tract of which it is a part, the value of the land taken must be ascertained without any deduction for benefits. The damages to the part of the tract not taken may be reduced by any special benefits which it may receive on account of the improvement. It is therefore necessary that these two items of assessment should be kept separate.”

Such is our legal context. Now for what happened. The Department asked its appraiser-witness what the value of the remainder was before the taldng and he testified that it was X Dollars. However, when asked for his opinion as to the value in dollars of the remainder after the taking, an objection was had, followd by an offer of proof that the answer would be X-plus Dollars and tire objection was sustained. The witness was only allowed to testify that the remainder would be worth “more” after than before, but that was all — precisely how much more in dollars was ruled out. Needless to say, the owners’ (we have consolidated cases) witnesses testified that the remainders’ values would be less afterwards than before and they did so using dollar values not the inexact “less”. The Department urges that this delimitation on them was error, that the jury should have had the opinion of its witnesses as to how much in dollar's the remainder was worth after the taking rather than simply the indefinite “more”, or that it was in “excess of”. We agree.

On the surface it might appear that since the owner is not required to pay for benefits, but simply receives them free, so to speak, testimony that the value was “more” or “in excess of” should be enough under these circumstances. But it seems to us the better practice is for the jury to have before them just how much more in dollars. As we have seen, benefits can be set off against damages to the remainder, so why not have both expressed in the same denominator — dollars? Everybody knows what they are! Here, there was a finding of damages to the remainders, and the Department’s position, or rather its thought, is that if the triers of the fact had known how much in dollars its witnesses would have opined, their verdicts might have been different — maybe less or maybe nothing at all.

To be specific, as to one of the two tracts involved, the Department’s witness’ opinion was that the remainder after the taking was $63,750.00 more than before, while the highest damages that one of the owners’ witnesses gave was $11,880.00 — a spread of $75,630.00. Which is to say that so far as the jury was concerned they heard the damages in dollars but the benefits only as “more” and as we have seen, the Department argues that if they could have heard just how much more — $63,750.00— they might come in with a far different verdict. We have emphasized “might” not because such is important up to now but that it will be later on.

The reason given for the exclusion was the fear that such might have the effect of encouraging a jury to set off such dollar benefits against the compensation found to be due for the land actually taken. In the situation present the jury as we know, decides both in its deliberation. But we agree with the Department that this apprehension can be handled by an instruction if indeed the apprehension seems to be real. The argument that jurors being jurors will disregard such admonitory instruction if given is a proposition we cannot accept. If we are wrong, then instructions to juries over the years have been meaningless and certainly a great deal of time has been utterly wasted. But as we have said, we do not believe it.

We emphasized earlier if the evidence excluded had been included the verdict might have been different. “Might” is subjunctive, which is to say, we don’t know, nor does anyone else — unless we were to reimpanel the jury and put the proposition to them again, this time in dollars. Even then, it might be different, because the context would be different. We are also mindful that in these matters errors resulting in new trials must be such that it is to be reasonably expected that the verdict will be different, or to put it another way, the verdict rendered was not within the range of testimony if the excluded had been included. But such is not the case here. The damage figure returned in both cases is less than the highest damage figure given — even though very slightly — and, as we have pointed out, the Department’s witnesses were permitted to testify that the value of the land not taken was worth “more” or “in excess of’. Condemnation trials, as has been pointed out, are time consuming and expensive, and while we believe, as we have held, that the jury here would have been better informed had they had a dollar figure as to benefits, still we cannot say, in view of this testimony and in addition the view had by the jury of the premises that the verdicts returned were not within the range of the excluded testimony. Accordingly, we affirm the judgment in both cases.

Judgment affirmed.

TRAPP, J., concurs.

Mr. JUSTICE CRAVEN,

specially concurring:

I agree that this case should be affirmed. I am not persuaded however that the trial court committed error in excluding evidence, expressed in dollar amounts, as to the enhanced value of the land not taken. In ascertaining the damages to the land not taken the jury is fully informed if the witness is pérmitted to express the opinion that there is no damage. Any enhanced value cannot serve as a setoff and thus the expression of enhanced value in dollar amounts seems of dubious materiality. As I view this record, the trial court was correct in its evidentiary rulings.