author: MR. PRESIDING JUSTICE BRYANT

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Whitehead and Richard E. Hudson, Defendants-Appellants.
    Gen. No. 50,447.
    First District, Second Division.
    February 15, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a finding of guilty of the crime of robbery made July 15, 1964, following a trial without jury in the Circuit Court of Cook County, Criminal Division. Judgment was entered on the finding the same day, the appellant Whitehead being sentenced to 1 to 3 years in the Illinois State Penitentiary, and appellant Hudson being sentenced to 2 to 7 years. The appellants’ theory on this appeal is that they were not proven guilty beyond a reasonable doubt and that they did not receive a fair trial.

The trial brought forth the following evidence. Emma Williams, the complaining witness, testified that on May 8,1964 she was walking along Greenwood Avenue between 62nd and 63rd Streets when she heard people using profanity behind her. She turned around to see who was swearing and saw the two appellants. Although it was after 11:00 p. m., she said she could see the two men clearly because of the street lights and the large number of neon signs along the street. She then turned away from the men and continued walking along Greenwood Avenue, but was grabbed from behind, thrown to the ground and robbed of her purse and watch. While she did not see the man actually grab her, she saw them as they were running down the street after having attacked her. She says they were the same two men she saw behind her when she turned around. She said the appellant Whitehead was wearing a beige leather jacket and the appellant Hudson, a red and black jacket. While she apparently did not see the faces of her assailants as they attacked her or as they fled, she said she was sure it was the same two men she saw walking behind her for there was no one else near her at that time and because she recognized their clothing.

Mrs. Williams said that she then went home and had her son call the police. Apparently this witness then went out with the police to try to find the stolen property and the assailants. After a while the police brought these two appellants to her, but she did not then identify them as the ones who robbed her. She testified that she did not identify them because she was afraid, and claims someone in the crowd said that if she identified these two men she would be attacked.

The next day, May 9, 1964, having discussed the matter with her husband, Mrs. Williams went to the police and said that the two men they had brought before her were the men who robbed her. On May 10, 1964, she picked the two men out of a lineup of seven persons. On cross-examination she testified that she never told the police that she could not give a description of the men who robbed her.

James Daniher, one of the policemen called to the scene, testified that when the two appellants were brought to Mrs. Williams that night, she seemed very nervous. He said that he heard the crowd talking when the two men were brought over, but that he heard no threats against Mrs. Williams. He stated he did not listen to what the crowd was saying. He stated he did not find any of the stolen property on the appellants’ persons when he searched them.

Mrs. Norma Whitfield testified that she was driving down Greenwood Avenue at the time of the robbery. She said she saw the appellants bending over Mrs. Williams and then run away. She knew the appellants on sight because they visited Maurice Washington, a tenant in the building where she lived. She was the manager of this building. She said that one of the two ran down the street after the robbery while the other ran down a gangway between two buildings. As she was parking her car, she saw the appellant Whitehead come in the back entrance of the building. She did not see the appellant Hudson come into the building, but she testified that she saw both leave the building again about one-half hour after the robbery had been committed. She said that Whitehead was wearing a black and red jacket while Hudson was wearing a beige one. The victim, Mrs. Williams, testified that when she first saw the two, Whitehead had the beige leather jacket while Hudson wore one that was black and red. She said, however, that when the two were brought before her that night, they had exchanged jackets.

Mrs. Whitfield said she saw the men clearly because of the street lights and the neon signs in the neighborhood. She then testified that she went out into the street and told one of the policemen that she knew who had robbed Mrs. Williams. She showed him the neighborhood coffee shop to which the appellants had gone and they were then taken into custody by the police.

Officer Daniher was the policeman who arrested the appellants. He said that when he took them into custody, Hudson was wearing a beige jacket, and Whitehead was wearing a red and black one.

Officer Hubert Holton testified that he was on duty the day after the robbery and that Mrs. Williams told him that it was the appellants who committed the crime. He arrested these two men at the building Mrs. Whitfield managed. According to this witness, Mrs. Williams identified the appellants at a line-up held the next day.

John Hearn Jr., age 22, testified that he was across the street when the robbery occurred and saw the men who robbed Mrs. Williams. He testified he did not know who they were, but said that the appellants were not the ones. Mrs. Joyce Jordan was with Hearn at this time and corroborated his testimony.

Maurice Washington, Jr. testified that he was with the appellants from 9:00 p. m. to 1:00 a. m. the night of the robbery. He said that the only time they left his presence during that evening was when his father sent them to the corner to get him some soup. It was while they were on this errand that they were arrested.

Both appellants took the stand in their own defense at the trial and in effect denied all knowledge of the robbery.

We believe that there is sufficient competent evidence to support the finding that these appellants were the men who committed the robbery. There is nothing in the evidence which shows that Mrs. Williams and Mrs. Whitfield could not have seen the appellants. There was evidence from all the witnesses who were asked that the street was well lighted. The sole question for resolution is the credibility of the various witnesses. The two witnesses who said they saw the robbery and testified that the appellants were not the ones were across the street while the offense was taking place. Mrs. Williams was certainly in a better position to see the two men. While Mrs. Whitfield was in a car when she saw the robbery, she knew the two men and was in a good position to identify them. She testified that there were no automobiles blocking her vision when she watched the men flee the scene of the crime. Being in the middle of the street, she was still in a better position to see the assailants than were the two witnesses who were across the street. The Court below heard and saw the witnesses and we cannot say that his finding was against the manifest weight of the evidence. “Where the cause is tried without a jury, it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflicting a reviewing court will not substitute its judgment for that of the trier of fact.” People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631, 633 (1964).

The first point made to substantiate the appellants’ claim that they did not receive a fair trial is that their attorney was not shown the police reports prior to the trial. Such a claim is without legal basis. In support of their proposition, the appellants cite the cases of People v. Moses, 11 Ill2d 84, 142 NE2d 1 (1957) and People v. Neiman, 30 Ill2d 393, 197 NE2d 8 (1964). In the Moses case, supra, the police department records were sought after a witness had testified so that the witness might be impeached. In People v. Neiman, supra, the court held that the police must show their records to the defendant when such records might be used for impeachment purposes. Both cases hold that the police department records are available only for impeachment purposes. See also People v. Turner, 29 Ill2d 379, 194 NE2d 349 (1963); People v. Cole, 30 Ill2d 375, 196 NE2d 691 (1964); People v. Johnson, 31 Ill2d 602, 203 NE2d 399 (1964); People v. Bailey, 56 Ill App2d 261, 205 NE2d 756 (1965).

The next point made by the appellants is that their attorney was prevented from introducing prior inconsistent statements allegedly made by Mrs. Williams before the grand jury. On cross-examination he asked Mrs. Williams if she had told the grand jury that she did not see the men who robbed her. She answered, “No, I didn’t make that statement.” The matter was pursued no further at that point.

When appellant Hudson took the stand he was asked if Mrs. Williams had testified against him before. He answered that she had. He also testified that he was present at that time. He was then asked, “Now did they ever ask her and did she answer — ” The question was interrupted by an objection.

A prior inconsistent statement is not considered hearsay, since it is not admitted to prove the truth of the matter asserted, but only to show that the witness made inconsistent statements. Ill Wigmore, Evidence § 1018 (3rd Ed, 1940, p 687-690). The question here is not whether prior inconsistent statements may be proven, but the manner in which such proof may be made. Appellants cite People v. Goldberg, 302 Ill 559, 135 NE 84 (1922), for the proposition that the former evidence of a witness may be established by any person who heard the testimony given and can swear to it from memory. In the Goldberg case, supra, the court was faced with the claim that a witness could not be impeached with his testimony given at a grand jury on the grounds that the grand jury proceedings were secret and that it was against public policy to permit the records to be made public. There, the court said that the witness could be impeached by bringing in the stenographer who took the record of the testimony given before the grand jury. Miller v. People, 216 Ill 309, 74 NE 743 (1905), is cited for the same proposition. There too, the court said that prior testimony could be proved by a court reporter.

The case closest on its facts to the one at bar is People v. Colon, 119 NYS2d 503, 281 App Div 354 (1953), where the court said it was proper for the attorney who represented the defendant at the preliminary hearing to testify as to what was said by one of the witnesses on that occasion.

We need not pass on whether this result is necessary, for the post trial motion is inadequate to raise the issue. After the finding of guilty, attorney for the defendants made oral motions for a new trial and in arrest of judgment. In neither case did he specify any basis for the motion. Assuming that the filing of a written post trial motion may be waived, the record does not show the submission of an oral post trial motion raising these questions.

The final point raised on the appeal is that the appellants were prevented from showing that Mrs. Whitfield bore a grudge against Maurice Washington. People v. Bote, 376 Ill 264, 33 NE2d 449 (1941), is cited in support of this proposition. In that case, however, the court held it was error not to permit the appellant to show that the witness was prejudiced against him. We have been shown no cases where the dislike of witnesses for one another was considered proper for exploration during a trial. We think that the feelings of Mrs. Whitfield toward Mr. Washington are too tangential to be admissible as evidence at this trial.

For the reasons given above, the judgment is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Mabel Kessler, Administratrix of the Estate of Fred F. Kessler, Deceased, Plaintiff-Appellant, v. Frank Lepiane and Edmier, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 50,503.
    First District, Second Division.
    February 15, 1966.

      Erwin Cohn, of Chicago, for appellant.
    Gerrard & Gerrard, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for Frank Lepiane, defendant-appellee. Robert Emmett Lee, of Chicago, for Edmier, Inc., defendant-appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment entered on a directed verdict returned October 26, 1964 in the Circuit Court of Cook County. The Court below directed the verdict at the close of the plaintiff’s case and she appeals saying that evidence was adduced as part of her proof which supported her claim against the two defendants.

Plaintiff’s deceased was killed in an automobile accident with a Cadillac owned by the defendant Lepiane. She brought this action against Lepiane and Edmier, Inc., as Lepiane’s employer under the doctrine of respondeat superior. Plaintiff contends there was substantial evidence to support her contention that Lepiane left his automobile unattended on a public highway with the key in the ignition and the motor running in violation of the Uniform Traffic Act. Ill Rev Stats (1959) chap 95%, sec 189. That section reads:

“No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key . .

Chap 9514, sec 117 states that the provisions of the act shall apply only to the operation of vehicles upon highways with certain exceptions not applicable here.

The defendants urge that the evidence is clear the automobile was not left on a highway, but was parked on private property and was, therefore, outside the prohibition of the above-quoted statute. While the complaint alleged both common law negligence and negligenee in the violation of the statute, the appeal is based only on the theory that the plaintiff made a prima facie case with regard to a violation of the statute. Under the rules of this court, the claim so far as it pertains to common law negligence is considered waived. Ill Rev Stats (1965) chap 110, sec 201.7.

The plaintiff’s case insofar as it bears on the question before us was as follows:

Frank Lepiane, one of the defendants, was called as an adverse witness under sec 60 of the Civil Practice Act. Ill Rev Stats (1963) chap 110, sec 60. This witness does not speak the English language well, thereby making his testimony somewhat unclear, at least from reading it in the record. He testified he did not read English easily and all he could write in this language was his name. He said at the trial that when he finished work at 5:00 a. m. the morning of the accident, he drove his car to Johnny’s Grill, a short order restaurant and parked his car while he went in for some coffee. While he was having his coffee, his car was stolen. There is no doubt but that the car was stolen by Harold Jeffries, whose deposition we shall discuss shortly. The witness testified, “My car was parked in the parking lot next to the alley adjoining Johnny’s Grill. I put an ‘x’ at the place where my car was parked.” An exhibit shows a photograph of á parking lot next to Johnny’s Grill with an “x” in one of the parking places. He testified that he did not park in front of the restaurant, but on the side. “On the side you’ve got a parking lot, some call it a street, some call it a parking lot, some call it an alley.” As we noted earlier, the meaning of the printed record is difficult to follow, but the exhibit showing an “x” where the witness stated he was parked would seem to clear up any ambiguity that adheres to the printed record.

There was attempted impeachment of this witness from a discovery deposition taken several years earlier. It is difficult to tell whether there was in fact a variance in the testimony or if such problems as there were were caused by Lepiane’s language difficulties.

The deposition of Harold Jeffries, the man who stole the automobile, was admitted into evidence. The deposition shows it was being taken in the Missouri State Penitentiary. Jeffries testified that he stole the car while on medical parole from the Illinois State Penitentiary. He stated that he had been drinking for several hours that evening and that he stole the car because he did not see any streetcars running. “I went up the street about a half-block and there was this Cadillac there, with the keys in the ignition, with the motor running, and I got in it and drove it down Cicero and Belden and turned up Belden, and had a traffic accident at Sacramento and Belden.”

As to the location of the automobile when he stole it, this witness testified, “It was parked alongside of a small restaurant. The restaurant was on the street, with an alley running alongside of it, and the Cadillac was parked just around the side of the restaurant, pointed up the alley.”

The defendants insist that there is no alley on the side of the restaurant, but only a private parking lot which goes along the side and rear of the building. The plaintiff had photographs put into evidence which purport to show an alley at the side of the restaurant. We have examined these photographs carefully and are constrained to say we see no alley. If the plaintiff seeks to show a violation of a statute in that one of the defendants left his car unattended with the motor running on a public way, she must show that the car was indeed left on a public way. The photographs show a parking area behind the building. The photographs do not show an alley.

Considering the evidence, we cannot say that the Court below was wrong in directing a verdict for the defendants. Although two witnesses refer to an “alley.” Lepiane specifically said that while some called it an alley it was in fact a parking lot. The other witness, Jeffries, referred to an “alley,” but he was not cross-examined as to what he meant by an “alley.” The testimony that the car was parked in an alley cannot be accepted as true. The photographs fully substantiate the claim of the defendants that the car was not parked on a public highway. The statutory offense set forth in the complaint, therefore, cannot be proved.

Since the judgment for Lepiane is being affirmed, the judgment against Edmier, Inc. must be affirmed also. The basis of the claim against Edmier, Inc. being one of respondeat superior, it cannot be held liable where the agent is shown free of responsibility.

For the reasons given above, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Roy Tatum et al., Plaintiffs-Appellants, v. Alfred Rooker and Leyden Motor Coach Co., Defendants-Appellees.
    Gen. No. 49,868.
    First District, Third Division.
    February 17, 1966.

      Sherman Diekholtz, of Chicago, for appellants.
    Howard C. Sorensen and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a judgment rendered on a verdict in favor of defendants in a personal injury case. Plaintiffs contend that the court erred in failing to direct a verdict for the plaintiffs on the issue of liability, and that the court also erred in failing to grant a new trial because the verdict was contrary to the manifest weight of the evidence.

Plaintiff Pearl Tatum was riding as a passenger in her husband’s car on January 25, 1958. Her husband, Roy Tatum, was driving the car. The car was proceeding in a westerly direction on Franklin Street from the intersection with Rose Street in the Village of Franklin Park, Illinois. The Tatums were going shopping at about 2:00 o’clock on a Saturday afternoon. Their car had stopped for a car pulling out of a parking space at the curb. Cars were parked diagonally to the curb. The pavement was dry.

The testimony of Roy Tatum and of the defendant, Alfred Rooker, is contradictory as to location of the Tatum car and the bus immediately preceding the accident. The plaintiffs testified that they had stopped thirty seconds to a minute before the bus of the defendant struck their car from behind. Alfred Rooker, the defendant bus company’s driver, testified that the accident occurred about 200 or 280 feet west of the intersection of Rose, that he had made a left turn behind the Tatum’s car and followed it as it proceeded west on Franklin. The traffic was heavy and he followed plaintiffs’ car at a distance of 2 or 3 feet. He saw a number of cars parked diagonally on Franklin and also the auto that started backing out toward the Tatum’s car. The highest speed he attained from the time he turned onto Franklin to the time of the impact was 2 or 3 miles per hour. The auto that was moving out of the parking stall was moving very slowly, less than a mile an hour. There had been two or three cars in front of the Tatum car but they cleared out after four or five stops from Rose and Franklin. There had been, according to Rooker, four or five stops on Franklin Street after the turn and the cars were moving two or three feet at a time. Rooker watched the car that was backing out of the parking area and it stopped. The car in front of him (Tatum car), without giving him any signal as to what it intended to do, came to a stop. There were no stop lights on the rear of the car in front of him. As a result of the impact the Tatum car was pushed forward one foot, according to Rooker, and three feet according to the plaintiffs. The bus at the time the driver applied the brakes was moving about 2 miles an hour. The bus did not move after the impact. At the time Rooker made his left turn onto Franklin Street there was about a 40-foot gap between the bus and Tatum’s car. He pulled up to within three feet of Tatum’s car and stopped. He then proceeded moving as the cars ahead moved and made several stops before the collision.

Plaintiff Roy Tatum testified that he stopped to let the other car, which was backing out of the parking space, get all the way out. Roy Tatum also testified that he was about one-third of a block from Rose Street when he first observed the bus and at that time he was stopped to let the other driver out of the parking space, and that about thirty seconds to a minute after he stopped the bus struck the rear end of his car. The rear end of the parked car had not quite gotten out of the parking space.

Alfred Rooker, the driver of the bus, testified that the backing vehicle was moving at the time of contact, and stopped with its left rear about two feet from the center of the right side of the Tatum car.

While it is true, as contended by plaintiffs, that a verdict may be directed for a plaintiff in a proper case, it is, likewise, true that a verdict will not be directed for the plaintiff in all cases.

Plaintiffs, in support of their argument, cite Houchins v. Cocci, 43 Ill App2d 433, 193 NE2d 597. In that case the court found on the issue of liability that in considering all of the evidence in its aspect most favorable to the defendant, it failed to find any evidence standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom which fairly tended to support the defendant’s defense that plaintiff stopped suddenly in the middle of the road without warning and without reason. The plaintiff in that case was seated in a standing automobile and was struck in the rear by defendant’s automobile. The plaintiff in that case had put on his left directional light and slowed down as he approached the intersection. He remained at a standstill for approximately 25 or 30 seconds during which his directional signal was on. He looked into the rearview mirror immediately before the impact and saw a car about one foot away and then felt the impact. The defendant in that case testified that she was traveling with her four and one-half-month-old daughter in a bassinet on the seat beside her; that she hit the rear end of an automobile operated by the plaintiff; that she had been driving approximately 25 miles an hour and slowed down a bit at the intersection; that when she first saw the plaintiff’s car it was stopped and that plaintiff’s car was about 20 feet in front of her when she first saw it. The court there held that the defendant had a duty to see other cars traveling ahead of her in her traffic lane and to be sufficiently alert to have had her car under proper control so that she could have stopped it without running into other traffic lawfully on the highway and lawfully stopped waiting to make a left turn. In that case the uncontradicted evidence of the plaintiff was that he was stopped for a period of time in his proper lane waiting to make a left turn with nothing to obstruct the view of any car coming from plaintiff’s rear in the same lane. It is significant that the court found that there was nothing in the evidence from which it could be inferred that the plaintiff was negligent or stopped abruptly. In the instant case there is no question but that the plaintiffs’ car stopped abruptly. According to plaintiffs’ testimony, Roy Tatum stopped to permit the parked car to back out so that he might take the parking space which would be left unoccupied. The evidence of defendants definitely showed that plaintiffs’ car came to a sudden stop without any previous warning.

In Ferdinand v. Lindgren, 32 Ill App2d 133, 177 NE2d 10, a rear end collision case, the defendant knew the condition of the highway and had had no trouble in bringing his car to a stop on the icy pavement just a block from the scene of the collision in question. In that case the jury found under all of the evidence that defendant was not guilty and the court said that whether the defendant was or was not guilty was a question of fact to be determined by the jury and that this court cannot say, as a matter of law, that the jury was not warranted in so finding. That case also referred to the case of Palmer v. Poynter, 24 Ill App2d 68, 163 NE2d 851, wherein the court stated on page 71:

“Upon a motion made by a plaintiff for a directed verdict, the court must consider all of the evidence and if there is any evidence, standing alone, together with every reasonable inference therefrom, which tends to prove the defendant’s position in the case, then the motion should be denied. If there is a conflict in the evidence on any material matter that necessitates weighing of the evidence or judging of the credibility of witnesses, and if it appears that reasonable minds might come to different conclusions, a verdict should never be directed.” (Cases cited.) “With regard to the granting of a new trial because the verdict is against the manifest weight of the evidence, it is the rule that this court cannot substitute its judgment for the judgment of the jury unless an opposite conclusion is clearly evident.”

From the facts in this case it might well have been that the defendants found themselves in a helpless condition as was pointed out in the Ferdinand case, supra. In the instant case it could be said that the plaintiffs were negligent in coming to a sudden stop without warning, or that the accident was unavoidable. If there is a conflict in the evidence on any material matter that necessitates weighing of the evidence or judging of the credibility of witnesses, and reasonable minds might come to different conclusions, a verdict cannot be directed.

The court in Weiner v. Battista, 10 Ill App2d 490, 135 NE2d 113, held that an instruction to the effect that if neither the plaintiff nor the defendant was negligent the jury should find for the defendant was held to be proper.

It cannot, therefore, be said in this case that the defendants were proven to be negligent as a matter of law.

As to the point that the verdict is contrary to the manifest weight of the evidence, we do not believe from an examination of the evidence that it can be said that the manifest weight favored either the plaintiffs or the defendants. Reasonable inferences may be drawn by a jury and an appellate court cannot set aside a verdict merely because a jury could have drawn different inferences or because we might have reached a different conclusion. Palmer v. Poynter, 24 Ill App2d 68, 163 NE2d 851; Niman v. Pecatonica Livestock Exchange, Inc., 13 Ill App2d 144, 141 NE2d 327.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Erwin J. Martin, Defendant-Appellant.
    Gen. No. 49,912.
    First District, Third Division.
    February 17, 1966.

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

delivered the opinion of the court.

Erwin Martin was found guilty of theft in a non jury trial and after a hearing in mitigation and aggravation was sentenced to the penitentiary for a period of 4 to 8 years. The sole contention on appeal is that the trial court committed reversible error in not conducting a hearing to determine if the defendant was mentally competent at the time of trial.

The defendant was observed by police officers at 4:30 a. m. driving an automobile the wrong way on a one-way street. The auto was curbed and the defendant questioned. He stated that the car was hit but that his identification papers and driver’s license were at home. He and the car were searched. A screwdriver was found in his belt and a dummy ignition switch was found in the car in place of the original switch. Papers in the car’s glove compartment indicated that the auto was owned by Fred Ellis. The defendant was taken into custody and Ellis was notified. Ellis, who had parked the car in front of his house the night before, arrived at the police station at 5:30 a. m., identified the auto and established his ownership. The defendant maintained in front of Ellis that the car belonged to him, that he bought it a few days before and that he had papers to prove this.

At the trial the defendant testified that he left his home about 4:00 or 5:00 o’clock in the morning to get some cigarettes for some people he was entertaining and that on his way back home he met his friend, George Davis, who was just getting out of an automobile. He said there were other people in the auto and that Davis, who operated a taxi service, offered him $2.00 to drive them to their destination. He yielded to Davis’ persuasion, drove the people where they wanted to go and was arrested as he was returning. He denied telling the police that the car was his. He said that he made no statement other than to deny stealing the car.

During his testimony the defendant stated he had suffered from epilepsy for four or five years. He testified that he blacked out two times following his arrest and was taken to a hospital. The disclosure that the defendant was an epileptic is the sole basis for the contention that the trial court, under section 104-2 (b) of the Criminal Code, should have stopped the trial and held a hearing as to his competency. Nothing took place at the trial in testimony or conduct, other than the revelation that the defendant was an epileptic, which could have given the court reason to believe the defendant was incompetent. He ably assisted in his defense and he obviously understood the nature of the charge against him and the purpose of the trial. His testimony was clear and coherent, his answers were prompt and responsive, he was firm in denying his guilt and his explanation for having possession of the stolen car was artful. But it is contended that, although no question was raised at the trial concerning his mental condition, the fact that he was an epileptic and had convulsions demonstrated that he suffered from “a serious mental disorder.”

Section 104-1, chapter 38, Ill Rev Stats (1963) defines an “incompetent” as a person charged with an offense who is unable because of a physical or mental condition to understand the nature and purpose of the proceedings against him or who is unable to assist in his defense. Section 104-2 (b) is as follows:

“If during the trial the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall conduct a hearing to determine the defendant’s competency and shall at the election of the defendant impanel a jury to determine the issue.”

Evidence of epilepsy is not evidence of incompetency. The mere fact that the defendant stated that he was an epileptic was no reason for the court to question his mental capacity or to conduct a hearing to determine his competency. The cases of Ellis v. U. S., 274 F2d 52 (1959) and Gann v. Gough, 79 F Supp 912 (1948) are analogous to the present one and are in accord with our thinking. In the former, it was held that mere awareness on the part of the district court that a defendant had a history of epilepsy was not, as a matter of law, a prohibition against the acceptance of the defendant’s plea of guilty. In the latter, a prisoner had an epileptic seizure the morning he pleaded guilty. It was contended that this prevented him from making a competent and intelligent plea. It was held that the fact that the defendant was an epileptic did not necessarily keep him from being competent while not suffering a seizure, and that the seizure the morning he was sentenced did not incapacitate him from understanding what he was doing at the time he entered his plea.

Epilepsy is a symptom of a neurological disorder characterized by seizures, convulsions or temporary loss of consciousness. Except for these seizures and brief periods of unconsciousness, and for short periods afterward, most epileptics are as responsible for their actions as anyone else. In 80 percent or more cases impairment of cerebral functions is but transitory. There are no psychological features or mental disorders that are peculiar to epileptics. Duggins, Epilepsy, Its Causes, Effects and Treatment; Masland, Neurology, Encyclopedia of Mental Health, 1327 (1963) ; Goldensohn, Epilepsy and Other Paroxysmal Disorders, Encyclopedia of Mental Health, 575 (1963).

For years it was commonly thought that all epileptics were afflicted mentally. Expressions appeared in opinions describing epilepsy as: “A disease attended by brain deterioration which is progressive,” “tending to weaken mental force,” “of a peculiarly serious and revolting character,” “incurable” and “likely to be transmitted by marriage.” Busch v. Gruber, 98 NJ Eq 1, 131 A 101; Gould v. Gould, 78 Conn 242, 61 A 604. Although it has now been established medically that epilepsy is not associated with feeblemindedness, mental retardation or insanity, that it is controllable in the great majority of cases, is not contagious or hereditary and that only a disposition to the disorder may be inherited as a recessive trait (as is true of many other diseases), society’s knowledge and attitude have not kept pace with medical progress. Putnam, Epilepsy, What It Is, What To Do About It (1958) ; Wehringer, Epilepsy — Justice Is Needed, 38 NDL Rev 563 (1962); Nardini, You, Your Child and Epilepsy; Irving, Forward II, Eilers and Malone, The Underwriting and Rating for Life and Health Insurance Coverage of Persons Afflicted with Epilepsy (1965). There are still vestiges of the once prevalent misconceptions. For example, in 1965 epileptics were subject to sterilization in 14 states— only two less states than in 1956. In 1965 three states had antimarriage laws applying to epileptics; however, there were six such states in 1962 and 17 in 1956. The Legal Rights of Persons With Epilepsy (1965) ; Wehringer, Epilepsy — Justice Is Needed, 38 NDL Rev 563 (1962); Barrow and Faning, Epilepsy and the Law (1956).

In Illinois there is no restriction on the marriage of epileptics and they are not subject to sterilization. The only statute affecting them is chapter 95%, paragraph 6-103 (8), which provides that before a driver’s license can be obtained an acceptable statement from a medical specialist to the effect that the operation of a motor vehicle would not be inimical to the public safety, must be furnished to the Secretary of State. The courts of Illinois have always held that proof of epilepsy does not justify a presumption of permanent mental incapacity. Wilson v. King, 83 Ill 232 (1876); Brown v. Riggin, 94 Ill 560 (1880); Lyon v. Lyon, 230 Ill 366, 82 NE 850 (1907); Lauth v. Harrison-Switzer Milling Co., 140 Ill App 199 (1908); Martin v. Fraternal Reserve Life Ass’n, 200 Ill App 359 (1916); Eschmann v. Cawi, 357 Ill 379, 192 NE 226 (1934).

The testimony of the defendant that he was an epileptic did not, of itself, make it necessary for the court to suspend the trial and conduct a competency hearing. The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Oscar Cooper, Defendant-Appellant.
    Gen. No. 50,295.
    First District, Third Division.
    February 17, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel) for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Oscar Cooper and Ernest Lee Wiley were indicted for the crime of robbery. Wiley pleaded guilty and was placed on probation; Cooper pleaded not guilty, waived a jury trial, was found guilty and sentenced to from one to eight years in the penitentiary.

This appeal is by Cooper only. He seeks a reversal of his conviction on the sole basis that his identification was not proved beyond a reasonable doubt.

On June 2, 1964, at about 10:00 p. m. two men approached the taxicab of Charles E. Brown and asked to be taken to the 1600 block on South Kilbourn Avenue, Chicago. There were no residences on that block and Brown was told to try the 1500 block on the same street. There were no homes there and Brown was directed to turn the corner and to park back of a certain car so that one of his passengers could check his wallet for the correct address. As Brown did so one of the men grabbed him from behind and said, “This is it” and held what felt like a knife to his neck. The other passenger emptied Brown’s coin changer and went through his pockets. Four five-dollar bills, five one-dollar bills and $8.24 in change was taken. The men ordered Brown out of the cab, disconnected the cab’s radio-microphone wires and walked him down streets, through an alley and between houses. During this walk they threatened him with bodily harm.

A .'few minutes after Brown was released, and a half block away, he stopped a passing police car. He told the two police officers that he had been held up; he got into the car and they circled the block. While the area was being scrutinized Brown gave them a description of the two men. Upon directing the police car’s lights into an alley they saw two men who Brown said were the two who had robbed him. The men were searched, taken to the police station and searched again. $33.24 was found on the men, the bills (four fives and five singles) on Cooper and the change on Wiley, including a mutilated dime which Brown carried as a pocket piece. Also found on Cooper was a painter’s scalpel and he was wearing a red armband which Brown had seen on his sleeve at the time of the robbery.

Cooper testified that he was in the neighborhood where he was arrested for the purpose of negotiating a house-painting job with a lady who lived thereabouts. He said she worked nights so that he had to see her at a late hour. He testified the cab which had driven him to the area had broken down and that he was assisting the driver in repairing it when he was attracted to a police car across the street by activity around it. When he came up to the car he was placed under arrest. He denied the robbery, denied any association with Wiley and denied being arrested at the same time as Wiley. He contends that the circumstances under which his identification was made and discrepancies and contradictions in Brown’s testimony and that of the arresting officers make them unworthy of belief and raise a reasonable doubt as to his guilt.

A positive identification by one witness is sufficient for conviction even though the testimony is contradicted by the defendant, provided the witness is credible and viewed the defendant under circumstances that would permit positive identification. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965); People v. Miller, 30 Ill2d 110, 195 NE2d 694 (1964); People v. Nicholson, 55 Ill App2d 361, 204 NE2d 482 (1965). In a nonjury trial it is the province of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony and the court’s judgment will not be disturbed unless it is based on clearly unsatisfactory and improbable evidence which leaves reasonable doubt of the defendant’s guilt. People v. Neiman, 30 Ill2d 393, 197 NE 2d 8 (1964); People v. Johnson, 47 Ill App2d 441, 198 NE 2d 173 (1964). Minor discrepancies and inconsistencies only go to the weight to be given the testimony. People v. Morgan, 28 Ill2d 55, 190 NE2d 755 (1963); People v. Clay, 27 Ill2d 27, 187 NE2d 719 (1963); People v. Stewart, 62 Ill App2d 428, 211 NE2d 154 (1965).

Any discrepancies in the testimony of the cab driver or contradictions between his testimony and that of the arresting officers or between the officers themselves were inconsequential. Brown had ample opportunity and time to observe the defendant. The cab stand where he picked up his passengers was well lighted. When he brought his car to a stop just before the robbery he pulled the meter and turned on the cab’s interior light. As he walked with the robbers they went under streetlights and he testified that he “was noticing them to make sure just in case I do have a chance to get away, if they don’t harm me in any way, I can notify, you know, identify them later.” He described the robbers to the police officers, identified them when he saw them in the lights of the police car and his description fitted the men arrested. Furthermore, his identification was corroborated by the weapon and the armband found on Cooper, the mutilated dime found on Wiley, the denominations of the bills found on Cooper and the amount of the money corresponding to the amount of money stolen, found on both Cooper and Wiley.

The evidence was sufficient to sustain the judgment and it is, therefore, affirmed.

Affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    Bernard Spivack, Plaintiff-Appellant, v. James Hara, Defendant-Appellee.
    Gen. No. 50,467.
    First District, Third Division.
    February 17, 1966.

      Querrey, Harrow, Gulanick & Kennedy, of Chicago (John T. Kennedy, of counsel), for appellant.
    Eugene F. Connell, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In this action for indemnity by one tortfeasor against another, judgment was entered for defendant on his motion to strike the complaint and dismiss the cause. The parties to this case were codefendants in an action brought by one Lenore Willens, who had been a passenger in the car of Hara when it was involved in a collision with Spivack’s car. She charged Hara with wilful and wanton misconduct, as was required to make her case under the guest statute, and alleged negligence on the part of Spivack. Judgment was entered on verdict against both men for $25,000. This judgment was satisfied by each man paying one-half, and Spivack, plaintiff in the instant suit, seeks indemnity from Hara, defendant here, for that amount.

Plaintiff’s theory is that his conduct, although found to be negligent, does not preclude his recovery against defendant, who was found guilty of wilful and wanton negligence. Plaintiff admits that his contention is a novel one, and he cites no precedent supporting it. Stressing the distinction between the two classes of negligence, in that contributory negligence is not a bar to an action for wilful and wanton misconduct, but is a bar to recovery for ordinary negligence, he argues that contribution among joint tortfeasors should be enforced where the parties are not in pari delicto.

Defendant Hara contends that plaintiff’s negligent operation of his automobile was a proximate cause of the injury and was within that classification of conduct labeled active negligence which forecloses plaintiff’s right to obtain indemnity. We will consider the origin and nature of this principle.

To combat the harshness of a rule prohibiting contribution among tortfeasors in all cases, Illinois courts have developed certain exceptions where indemnity is allowed. In general these exceptions arise where the party seeking indemnity has been guilty of only “legal” or “technical” negligence, while the indemnitor has committed the “active” or “primary” negligence. The objective of the courts was stated in Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 343 Ill App 148, 98 NE2d 783, as follows: “to do justice within the law so that one guilty of an act of negligence — affirmative, active, primary in its character — will not escape scot-free, leaving another whose fault was only technical or passive to assume complete liability.”

The usual case in which this exception is applied involves a specific relationship where the defendant incurring derivative liability has neither participated in the wrongful act nor known of the condition which caused the injury. Thus, in Moroni v. Intrusion Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346, this court held that an owner who had been held liable under the Scaffold Act could recover indemnity from the contractor whose employee was injured by the contractor’s negligence, where the owner was shown to have no knowledge of the defective equipment. The court followed the general principle that “the rule against indemnity between tortfeasors does not apply between parties, one of whom is the active and primary wrongdoer and the other bears a passive relationship to the cause of the injury.” John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill 331, 141 NE 739; Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., supra.

In the Moroni case, supra, the court was careful to distinguish Bohannon v. Joseph T. Ryerson & Son, Inc., 16 Ill App2d 402, 148 NE2d 602 (reversed on other grounds, 15 Ill2d 470, 155 NE2d 585), where an owner was denied indemnity from his general contractor and subcontractor because the owner himself was found guilty of negligence in supplying faulty materials. This form of negligence was differentiated from that in the Moroni case, where the owner’s liability under the Scaffold Act had been based merely on his status as an owner.

In the Arthur Dixon case, supra, indemnity was introduced into a factual situation different from the owner-contractor cases. There, a railroad employee was injured when he was crushed between the railroad car on which he was riding and a truck belonging to Arthur Dixon Transfer Co. which had been negligently left too near the tracks. In holding that the railroad’s complaint for indemnity from the trucker stated a cause of action, the court followed the active-passive distinction which had become settled law in cases involving derivative liability, but did not limit its application to instances where there was no participation by the indemnitee. That the train was in motion when the injury occurred was not considered as in itself establishing active negligence; nor was the railroad’s settlement of an employee’s claim under the Federal Employer’s Liability Act thought to be conclusive on the issue of negligence in a suit for indemnity, especially since the case rested on pleadings in which the railroad denied that it was negligent and the defendant had moved to strike.

Plaintiff seeks an extension of the rule derived from the decisions granting immunity to one who has been held liable for technical negligence, arguing that his conduct is analogous to that of one who has not been the primary wrongdoer. To come within the rationale of these decisions, the plaintiff must show that the defendant was the real party at fault and that the plaintiff’s liability was derived from a relationship which did not involve negligence or misconduct on his part. This in turn depends upon the issues which were submitted to the jury in the original suit brought by Willens. In that case an instruction was given outlining the grounds on which Lenore Widens sought recovery against Spivack and Hara. As to Spivack, the grounds were: (1) operating an automobile without keeping it under proper and sufficient control; (2) operating an automobile at an excessive rate of speed; and (3) failing to keep a proper lookout for other vehicles on the highway. Hara was charged with wilful and wanton conduct in that he operated his car at an excessive rate of speed. These were the charges on which the jury found against both Spivack and Hara. Spivack’s conduct as so determined does not meet the standard of passivity which is necessary for indemnification, as set forth in the cases hereinbefore cited. The finding of the jury as to defendant Hara does not suggest conduct substantially more culpable than that of Spivack.

The words wilful and wanton used in the charge and in the finding against Hara no longer have the connotation of wilfulness or even utter lack of restraint, but have been used to define a vague and somewhat shadowy area close to ordinary negligence. They do not imply that the defendant intentionally disregarded the safety of another. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569, 69 NE2d 293; Cooper v. Cox, 31 Ill App2d 51, 175 NE2d 651. In the Schneiderman case, supra, the Illinois Supreme Court said that wilful and wanton conduct could occur through “a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” In the Cooper case, supra, this court commented upon that standard, noting that the language was quite close to that used to define ordinary negligence.

There is lacking in the instant case that clearly higher degree of culpability on the part of one of several joint tortfeasors which would warrant placing the entire burden upon him.

The judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Alexander, Defendant-Appellant.
    Gen. No. 50,479.
    First District, Third Division.
    February 17, 1966.

      Norman Nelson, Jr., of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was convicted of the theft of an automobile of a value in excess of $150 and was sentenced to 3 to 10 years imprisonment. According to the state’s witnesses, at 3:30 a. m. on February 13, 1964, defendant and one Charles Evans were bent under the hood of a 1954 Chevrolet parked at the curbside on a city street. Immediately behind the 1954 car was a 1963 Chevrolet with its lights on and motor running. This was the automobile allegedly stolen by defendant.

Two detectives were parked nearby in a squad car and after observing defendant and Evans for several minutes, the officers approached and questioned them. One of the officers noticed that the ignition in the older car was in the “on” position, although it lacked a key. He asked who owned the newer car, the one here in question, and defendant answered that it belonged to his mother-in-law and that he was bringing her the clothes that could be seen in the back seat. The officer asked defendant for permission to enter and examine the newer car, and this was granted. There was a key in the ignition of the car, but when the officer handled it, the ignition assembly, with the key still engaged, came out in his hand. The motor kept running and was eventually turned off at the police station by the use of a screwdriver. When confronted with the ignition assembly, the defendant changed his story, asserting that the car was owned by one Pettigrew, a repossessor of cars, who had just repossessed the car and allowed him to use it. Defendant and Evans were then arrested. Investigation revealed that the owner of the 1963 car was neither the defendant’s mother-in-law nor Pettigrew, but one Oliver Coleman, who had parked the car in front of his house before retiring for the night. Coleman was notified at 3:45 a. m., went to police headquarters and identified the car. No evidence was adduced on behalf of defendant.

Defendant argues that the officer’s search of the 1963 car was illegal. There is no basis for this contention. Permission to search was granted and the arrest followed the search.

Defendant also argues that it was error to permit the owner of the 1954 car, one Mrs. Tommie Hardy, to testify that her car had been missing and that she had found it at the police station, that she had testified at the trial of Charles Evans, and that Evans had there been convicted of taking her car. The defendant contends that this constitutes inadmissible evidence of “other crimes.” At the same time he contends that the evidence was irrelevant because it did not charge him with an offense. Obviously this was not evidence of “other crimes” of the accused because it was Evans, not Alexander, who was named as the perpetrator.

It was permissible for the state to offer a continuous narrative of the events that formed the context of the arrest. People v. Ardelean, 368 Ill 274, 13 NE2d 976. The arresting officer testified that the ignition of the 1954 car was in the “on” position without a key, and as the theft of that car might be attributed to either Evans or Alexander, the testimony of Tommie Hardy establishing that it was stolen by Evans, and not by the defendant, was favorable to the defendant. The judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE LYONS

text:
    Mutual Truck Parts Co. Inc., Plaintiff-Appellee, v. Nathan Nelson, a/k/a N. Nelson, Defendant-Appellant.
    Gen. No. 50,732.
    First District, Second Division.
    February 18, 1966.

      Joseph A. Rosin and Jerome H. Torshen, of Chicago, for appellant.
    No appearance or brief filed for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order denying defendant’s petition to vacate a default judgment in favor of plaintiff.

On August 6, 1964, plaintiff filed its complaint against defendant, alleging that on June 25, 1964, defendant submitted to plaintiff samples of a quantity of “outer nuts” for sale to plaintiff at the price of 61/^ each; that the offer for sale was made pursuant to sample and based upon the representation that the “outer nuts” contained in forty-six cartons complied with the submitted samples; that plaintiff placed an order for twenty-four thousand (24,000) “outer nuts” at a total price of one thousand five hundred and sixty dollars ($1,560); that plaintiff thereupon delivered its check to defendant who furnished the “outer nuts”; and that the “outer nuts” were defective and did not comply with the samples submitted, and therefore plaintiff was entitled to judgment.

On August 25, 1964, defendant, by his attorney, filed and had time-stamped an appearance and a verified answer to the complaint, said answer alleging that payment was made by plaintiff to defendant only after plaintiff bad inspected and accepted the “outer nuts”; that the “outer nuts” complied with the samples submitted; that the samples submitted to plaintiff were surplus, seconds or rejects and that plaintiff was well aware of this fact; that the prevailing cost price for “outer nuts” is approximately eighteen to twenty cents per nut; that plaintiff was given the price of six and one-half cents because the nuts were seconds or rejects as plaintiff well knew; that to compensate for nuts which might be defective or unusable for the purpose intended, defendant delivered to plaintiff an extra one thousand “outer nuts”; and that plaintiff by and through its agents and servants, in the presence of defendant, inspected the contents and quality of the nuts delivered, made no complaint or protest, and only subsequent to said inspection did plaintiff issue its check.

On January 29, 1965, judgment was entered against defendant in the sum of one thousand five hundred and sixty dollars ($1,560). The court found in the preface to its judgment order that “. . . the defendant [was] absent and not represented. . . .”

On February 8, 1965, a writ of execution was issued. Service was not made upon defendant until March 6, 1965, twenty-five days after the writ was placed.

Thereafter, defendant filed a petition to vacate the default judgment alleging that on August 25, 1964, defendant filed a verified answer stating a valid defense to the complaint; that the cause was set for September 15, 1964, in Room 915; that on September 15, 1964, the matter was assigned to Room 1121 and set for trial on October 13, 1964; that on October 13, 1964, defendant appeared in Room 1121, but was advised that counsel for plaintiff had already appeared, and caused the lawsuit to be continued, representing that the request for continuance was by agreement; that defendant’s counsel had no contact with counsel for plaintiff and was unaware of any agreement to continue the matter; that defendant’s counsel then asked the clerk for the new trial date; that through inadvertence or mistake, defendant’s counsel was advised by the clerk of the court that the new trial date was February 26, 1965; that in reliance upon the statement of the clerk, counsel recorded the February 26 trial date in his diary; that although defendant’s counsel was advised that February 26 was the new trial date, the new trial date was January 29, 1965; that on February 26, defendant’s counsel again appeared in Room 1121 but could not find the instant matter on the court’s call of cases; that counsel immediately checked with the clerk’s office but could not locate the court file, which file was “short.” (When a file is “short” it means that it cannot be found); that on March 7, 1965, defendant was served with a writ of execution, which was the first knowledge that either he or his counsel had of the entry of a judgment, as the execution was placed for service on February 8, 1965, but was not served until March 7, 1965, a period in which defendant was in town and available for service; that immediately upon receipt of the execution, defendant’s counsel examined the court file, which was now available, and determined for the first time, that the trial of the cause had been set for January 29, and not February 26, as he had been advised; and that the verified answer and appearance filed on behalf of defendant on August 25, 1964, was not disclosed by the file. No answer was filed to the verified petition to vacate the default judgment.

The trial court denied the petition to vacate the judgment. This appeal is taken from that order.

It is defendant’s theory that the verified petition, which stands uncontradicted, stated proper grounds for relief under section 72 of the Civil Practice Act and that the trial court, therefore, erred in denying the petition to vacate.

At the outset we observed that no appearance or brief was filed in this court by plaintiff. Under such circumstances a judgment may be reversed without a consideration of the cause on its merits. Eichelberger v. Robinson, 233 Ill App 579 (1924); C. I. T. Corp. v. Blackwell, 281 Ill App 504 (1935); 541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964); Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1965). Because, however, the above rule is discretionary, we will consider the merits of defendant’s appeal.

This case is governed by section 72 of the Illinois Civil Practice Act, Ill Rev Stats (1963) ch 110, Par 72, and the decisions of the courts construing that Act. In Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963), the Supreme Court held at page 613:

Since our decision in Ellman v. De Ruiter, 412 Ill 285, subsequently adopted by the legislature (Laws of 1955, p 2270), it has become certain that a petition filed under Section 72, such as we have here, invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.

The above recited language has been relied upon consistently by this court in circumstances similar to those in the instant case. Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299, 300 (1965); Spencer v. American United Cab Ass’n, 59 Ill App2d 165, 208 NE2d 118, 121 (1965); Vosnos v. Wenzel, 44 Ill App2d 192, 194 NE2d 484, 486 (1963).

For a default judgment to be set aside, a petitioner should show, (1) that he has a meritorious defense to the claim brought against him, and (2) that he and his attorney have exercised reasonable diligence . . . , Rule 3, sec 1.5, Civil Practice Rules of Municipal Department, Circuit Court of Cook County.

In the case at bar, both a meritorious defense and reasonable diligence have been shown. Defendant filed an answer to plaintiff’s complaint. Affirmative defenses were properly alleged by defendant and were not denied by plaintiff.

Thereafter, when the cause was called for trial, defendant’s lawyer appeared and was told by the clerk of the court that a new date had been obtained by plaintiff on the representation that the continuance was “by agreement.” Defendant’s counsel was unaware of this agreement. Nevertheless, he was advised by the clerk of the court that the new trial date was February 26, 1965. There is no showing in the record that defendant received any further notification from any party of the continuance or the new trial date. On February 26, defendant’s counsel again appeared in court. The case did not appear on the call. The file could not be found in the clerk’s office. Thereafter, on March 7, defendant was served with a writ of execution. At this time defendant learned for the first time that the continued date of the trial was not February 26, as his attorney had been advised, but was in fact January 29, 1965, at which time plaintiff had appeared and taken judgment. No notice was given to defendant or his counsel at the time the judgment was taken, nor does it appear that defendant was furnished with a copy of the judgment order. After the writ of execution was served, the file became available in the clerk’s office. Upon examining the file, defendant’s counsel determined that the appearance and verified answer which was time-stamped on August 25, 1964, did not appear in the file.

Defendant’s counsel promptly advised the court of these facts by a sworn petition. Plaintiff did not file an answer to the petition. The facts alleged therein, thus, must be taken as true. Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525 (1961); Elfman v. Evanston Bus Co., 27 Ill2d 609, 610, 190 NE2d 348 (1963); Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299, 301 (1965).

The case at bar is substantially identical to that of Vosnos v. Wenzel, 44 Ill App2d 192, 194 NE2d 484 (1963), wherein this court reversed and remanded an order of the trial court, which denied a petition brought under section 72, holding that the pleadings and affidavit on file were sufficient to show a good defense on the merits and that proper diligence had been exercised by a defendant who had mistakenly been informed by the court that no further jury trials were to be heard during the term. The court stated at page 197:

“The counsel for defendants states, under oath, that the Clerk of the Municipal Court advised him that no jury trials were to be heard during that term, and that this case was assigned for trial on June 27th through a mistake of the court clerk. This seems borne out by a certified copy of entries in the motion book in Room 918 on June 7, 1960, showing the following entry: ‘60M300493 Vosnos v. Wenzel, NJ 6/27,’ (Emphasis ours.) which may explain the error of the clerk in sending the case to the wrong courtroom as being a nonjury case.
“The Municipal Court of Chicago with its multitude of cases must necessarily be confronted with clerical errors and the most diligent lawyer may be faced with the same situation in which the defendants’ lawyer found himself. The court files of this case revealed to the trial judge that it was a contested case and that the defendants demanded a jury trial. An ex parte trial in a contested matter should be condoned only as a last resort. The facts of this case are particularly appealing in terms of the relief sought since execution was not served upon the defendants to put them on notice that an ex parte judgment had been rendered against them. Had this been done the defendants could have availed themselves of the provisions of Sec 50(6) of the Civil Practice Act by filing a petition within thirty days of the entry of the judgment. The defendants’ lawyer upon learning of court clerk’s error in assigning the case, promptly brought the facts to the attention of the trial judge. The trial court, in the exercise of sound discretion and in justice and fairness, should have allowed the petition of defendants and permitted a trial on the merits. The setting aside of the judgment, in our opinion, will not cause a hardship upon the plaintiff but will merely assure him as it will the defendants a day in court at which time the merits of the case can be fairly heard.”

A similar result should be reached in the case at bar.

Furthermore, it should be noted, with regard to the default judgment, that the Civil Practice Act, Supreme Court Rules and Circuit Court Rules were all disregarded. Section 50.1 of the Civil Practice Act provides that “upon entry of an order of default . . . the clerk shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or his attorney of record . . . .” In the instant case, it does not appear that such notice was given.

Circuit Court Rule 7.1 provides that when a court makes a final determination in an action, the attorney for the prevailing party shall prepare and present to the court an order, unless the court directs otherwise. This order should be served pursuant to Circuit Court Rule 7.2 and Supreme Court Rule 7-1(2). In the case at bar, it does not appear that any such order was served upon defendant.

Finally, it does not appear that plaintiff sought in any way to notify defendant of the ex parte judgment except by means of a writ of execution which writ, was served more than thirty days after the entry of judgment wherein defendant could not seek relief within thirty days and was compelled to use the procedure provided by section 72.

The order of April 5, 1965 is reversed and cause remanded with directions to allow the petition of plaintiff to vacate the judgment of January 29, 1965 and for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded with directions.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Marie Morton, et al., Plaintiffs-Appellants, v. Board of Education of the City of Chicago, et al., Defendants-Appellees.
    Gen. No. 50,880.
    First District, Second Division.
    February 18, 1966.

      Byron S. Miller, Milton I. Shadur and Harry S. Miller, of Chicago, for appellants.
    James W. Coffey, of Chicago (Frank S. Righeimer, John T. Mehigan and Michael J. Murray, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a decree dismissing with prejudice plaintiffs’ complaint for an injunction to restrain the defendants from maintaining an experimental dual enrollment program (commonly known as the shared-time plan) created by a resolution of the Board of Education of the City of Chicago on April 28, 1964, and implemented by a report of the General Superintendent of Chicago Public Schools on April 29, 1965.

The 1964 resolution provides that students residing within the Kinzie High School attendance area who are otherwise eligible for full-time enrollment at that High School may attend the Kinzie High School on a part-time basis during the period of the experiment, beginning in September of 1965 and ending in June of 1969. The resolution provides that participation in the program may be effected only upon application in writing by the students’ parents or legal guardians and that the participating students at all times during the duration of the experiment must fully comply with the compulsory attendance laws of Illinois. The resolution further provides that the General Superintendent of Public Schools shall request various private schools within the City of Chicago having students residing in the Kinzie High School attendance area to cooperate in the experiment, for the purpose of determining whether the dual enrollment plan is in the best interests of the Chicago pub-lie school children and the public school system. In August of 1964, the name of the Kinzie High School was changed to the “John F. Kennedy High School,” and shall hereinafter be referred to by the latter name.

The General Superintendent’s 1965 report described the progress of the implementation in connection with the Kennedy High School and set out the standards to be met by the students enrolled in the program as a condition to continued participation. The report also set out preliminary steps taken in connection with the initiation of a similar plan at the Taft High School. The 1965 progress report was approved and adopted by the Board of Education in May of 1965.

The Kennedy dual enrollment plan went into effect in September of 1965. The students enrolled in the program took all courses at the Kennedy High School except English, Social Studies, Music and Art, which courses were taken at the nearby St. Paul High School. Credit towards a Chicago Public High School diploma is given for the courses which are taken at the St. Paul High School.

Plaintiffs’ complaint, filed in May of 1964, sought to enjoin the Board of Education from maintaining the dual enrollment program on the grounds that the program violated statutory and constitutional provisions. The complaint also sought to enjoin the Board of Education from permitting the construction of the Kennedy High School building which was then in the process of construction, but this matter had become moot by the time the hearing was had on the complaint in June of 1965, for the reason that the building had been erected and was then in use.

The legality of the dual enrollment program was challenged on the ground that it permits the parents or legal guardians of the participating students to violate the compulsory attendance laws of Illinois, set out in sections 26-1 and 26-2 of the 1961 School Code. Ill Rev Stats 1963, chap 122, pars 26-1 and 26-2. The complaint also challenged the constitutionality of the program on the ground that it violates article VIII, sections 1 and 3 of the Illinois Constitution, as well as the First Amendment to the United States Constitution, with respect to the establishment and/or maintenance of religion. Ill Const, art VIII, secs 1 and 3; US Const, 1st Amend. After considerable oral argument by counsel for the respective parties concerning both of the alleged violations, the trial court found that the dual enrollment plan does not violate either the statutory or the constitutional provisions, and ordered that the complaint be dismissed with prejudice.

Undoubtedly, the Chicago School Board has the power to create and maintain experimental education programs for the Chicago public school children. Section 34-18 of the 1961 School Code specifies the powers of the school boards and states that the “specifications of the powers herein granted are not to be construed as exclusive, but the board shall also exercise all other powers that may be requisite or proper for the maintenance and the development of a public school system, not inconsistent with the provisions” of the School Code. Ill Rev Stats 1963, chap 122, par 34-18. We cannot find any intention on the part of the legislature to limit the power of a school board to adopt and develop better methods of educating the children of this State, so long as the methods so adopted are otherwise consistent with the provisions of the School Code.

Section 26-1 of the School Code compels school attendance of all children in this State between the ages of 7 and 16 years. It provides:

“Whoever has custody or control of any child between the ages of 7 and 16 years shall cause such child to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term; Provided, that the following children shall not be required to attend the public schools:
“1. Any child attending a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language;
“2. Any child who is physically or mentally unable to attend school, such disability being certified to the county or district truant officer by a competent physician; or who is excused for temporary absence for cause by the principal or teacher of the school which the child attends;
“3., Any child necessarily and lawfully employed according to the provisions of the law regulating child labor may be excused from attendance at a school by the county superintendent of schools or the superintendent of the public school which the child should be attending, on certification of the facts by and the recommendation of the school board of the public school district in which the child resides. In districts having part-time continuation schools, children so excused shall attend such schools at least 8 hours each week;
“4. Any child over 12 and under 14 years of age while in attendance at confirmation classes.” Ill Rev Stats 1963, chap 122, par 26-1.

Section 26-2 relates to children under the age of 7 and over the age of 16, but only if they are enrolled in a public school. It provides:

“Any person having custody or control of a child who is below the age of 7 years or above the age of 16 years and who is enrolled in any of grades 1 through 12, in the public school shall cause him to attend the public school in the district wherein he resides when it is in session during the regular school term unless he is excused under paragraphs 2, 3, or 4 of Section 26-1.” Ill Rev Stats 1963, chap 122, par 26-2.

Section 26-1 requires the education of all children of this State, without regard to the place of education. Section 26-2, on the other hand, appears to be an administrative measure designed to prevent problems from arising in the maintenance of attendance and credit records of those children under 7 years and over 16 years who, by reason of their ages, are not compelled to attend school under section 26-1, but who are nevertheless enrolled in a public school. Significantly, section 26-2 does not apply to children enrolled in nonpublic schools, indicating the legislature intended such children to be governed by the regulations of the particular nonpublic school administrations wherein such children are enrolled.

The dual enrollment program does not violate section 26-1 of the School Code. Any child within the ages of 7 and .16 years is required “to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term” unless the child falls within one of the four exceptions. In the event that the child does come within one of the exceptions it is not necessary that he “attend some public school in the district wherein [he] resides the entire time it is in session.” (Emphasis supplied.) Since the object of the compulsory attendance law is that all children be educated and not that they be educated in any particular manner or place, part-time enrollment in a public school and part-time enrollment in a nonpublic school is permitted by section 26-1, so long as the child receives a complete education. See People v. Levisen, 404 Ill 574, 90 NE2d 213.

Plaintiffs contend that paragraph 1 of section 26-1, requiring private and parochial schools to offer a full curriculum of studies comparable to those offered in the public schools to children of corresponding age and grade, requires that the children attending nonpublic schools must be in full-time attendance at the nonpublic schools. While it is necessary that the nonpublic schools offer comparable courses of study, as set out, it does not necessarily follow that the children must be in full-time attendance at any particular school. Furthermore, the dual enrollment program in question does not require all students enrolled in the participating nonpublic school to be enrolled in the dual enrollment program, nor does it contemplate that the only courses taught in the participating nonpublic schools are to be solely those taken by the participating students.

Plaintiffs further argue that the legislative history of the School Code shows a “tightening of the public school requirement and a narrowing of the ‘or private school’ alternative to the specific exception in paragraph 1” of Section 26-1, thereby prohibiting dual enrollment programs. What has been said above disposes of this contention. Furthermore, compulsory attendance was required before the statutory change in 1945 to which plaintiffs refer. Section 274 of the School Code of 1909 required children between the ages of 7 and 16 “to attend some public or private school for the entire time during which the public school in the district wherein the pupil resides is in session.” The four exceptions to public school attendance provided for in the present Code were provided for in the Code of 1909. Ill Rev Stats 1909, chap 122, par 301. As indicated by the Public School Commission which drafted the 1945 School Code, the purpose of the 1945 codification was not to incorporate substantive changes into the law but to attempt the codification of existing laws. One of its main objectives was to eliminate superfluous verbiage. SHA, 1946 Ed, chap 122, pp IX-XVII. The wording of the 1909 Code, that the children shall attend some public or private school was superfluous to the extent that a specific exception relating to private and parochial schools was thereafter provided. The words “or private school” were therefor unnecessary, and were eliminated in the School Code of 1945. Ill Rev Stats 1945, chap 122, par 26-1. The words “or private school” are likewise omitted from the 1961 School Code for the same obvious reason. Ill Rev Stats 1961, chap 122, par 26-1. Plaintiffs’ argument, that the legislature in 1945 by omission of the words “or private school” intended to “tighten the public school requirement” is therefore unfounded. Furthermore, it is difficult to understand how the omission of these words has any bearing on the question of part-time enrollment so long as the child receives a full and complete education. See People v. Levisen, 404 Ill 574, 90 NE2d 213; Commonwealth ex rel. Wehrle v. School Dist. of Altoona, 241 Pa 224, 88 Atl 481.

Section 26-2 likewise permits part-time enrollment in a public school and part-time enrollment in a nonpublic school. As admitted by plaintiffs, section 26-2 was designed to eliminate administrative problems relating to attendance and credit records of those students enrolled in public schools who are not subject to the compulsory attendance provisions of section 26-1 by reason of their ages. Section 26-2 does not employ the words “the entire time” which are contained in section 26-1. It is of interest to note that these specific words were contained in section 274 of the 1909 School Code relating to the “under 7 and over 16” age group (Ill Rev Stats 1909, c 122, par 301,) but were deleted from the comparable provisions in the 1945 and 1961 School Codes. Ill Rev Stats 1945, 1961, chaps 122, pars 26-1. The 1964 resolution and the Superintendent’s 1965 progress report both specifically provide that the participating students shall comply with the compulsory attendance laws of this State, as well as provide that they shall meet the Chicago public high school graduation requirements. The students in the “over 16” age group who are enrolled in the dual enrollment program are required to be in attendance at all classes in which enrolled in order to receive the proper graduation credits. The participating students are also required to conform to all rules and regulations established by the Board of Education.

Plaintiffs’ argument, that the lack of a “nonpublic school attendance” exception in section 26-2 indicates that the legislature intended to prohibit dual enrollment programs, is unavailing. As stated above, section 26-2 was enacted as an administrative necessity to eliminate attendance and credit record problems involving the public school students who are not covered by section 26-1. Since children under 7 and over 16 are not required to attend school under section 26-1, an exception for attendance at a nonpublic school under section 26-2 would have been superfluous. The legislature intended that problems of attendance and credit relating to students in the “under 7 and over 16” age group enrolled solely in nonpublic schools be left for the particular nonpublic school administration. The lack of such an exception in section 26-2 has no bearing on whether the legislature intended to permit or to prohibit dual enrollment programs. In passing it should be noted that no such exception was contained in the comparable provisions in the 1909 and the 1945 School Codes. Ill Rev Stats 1909, chap 122, par 301; Ill Rev Stats 1945, chap 122, par 26-2.

Plaintiffs’ argument that there is no attendance control for participating students while in attendance at the participating nonpublic school is likewise unavailing. The participating students are required “to conform to all rules and regulations established by the Board of Education” and to “meet the High School graduation requirements of the Chicago Public Schools, including those in relation to required subjects and sequences,” and shall “receive a diploma issued by the Chicago Board of Education.” The program contemplates that the participating students will receive a full and complete education so as to be entitled to a public high school diploma. People v. Levisen, 404 Ill 574, 90 NE2d 213. We do not here create an additional exception to the compulsory attendance required by section 26-2, as contended by plaintiffs, since the scope of section 26-2 permits dual enrollment in public and nonpublic schools and since the dual enrollment program does provide for control of attendance.

Section 18-8.1 of the School Code provides for State aid to part-time students from the common school fund, further indicating the legislature did not intend to prohibit dual enrollment. Students who are regularly enrolled in a public school for only a part of the school day may be counted on a basis of one-sixth of a day for every class hour attended pursuant to such enrollment. Ill Rev Stats 1963, chap 122, par 18-8.1.

The program applies to all nonpublic educational institutions and not to any religious group or groups, and offers its benefits to individual students on a purely voluntary basis upon application by the parents or legal guardians of those children. As stated in Pierce v. Society of Sisters, 268 US 510, at page 535: “The child is not a mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” The experimental dual enrollment plan adopted by the Chicago School Board is merely an attempt to find a better method for the education of the Chicago public school children at the option of the parents or legal guardians of those children.

The decree of dismissal with prejudice is affirmed.

Decree affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George W. Schneller, Defendant-Appellant.
    Gen. No. 50,387.
    First District, Fourth Division.
    February 18, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Stuart P. Shapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, George W. Schneller, was found guilty of burglary after a bench trial and was sentenced to the penitentiary for a term of not less than one nor more than four years. In this appeal defendant contends that he was not proven guilty beyond a reasonable doubt of the crime of burglary as charged in the indictment.

Officer Robert Hanson testified that on March 13,1964, at approximately 7:30 p. m. he proceeded to the Chicago Historical Society pursuant to a radio assignment notifying him that the ADT electric alarm system was sounding, and that other officers arrived shortly thereafter; that upon investigation he found the doors secured but he noticed a door at the north end of the building open and close; that men from the ADT system arrived and opened the door; and that they entered with police dogs and found the defendant near a snowplow and a mimeograph machine. The officer further testified that a showcase had been pried open and a small white shirt type button was on the floor; that two buttons were missing from defendant’s shirt; that they found a screwdriver, some long-nosed pliers, sunglasses and a handkerchief; and that near the door they found an automatic pistol and flashlight; and that the aforesaid tools were found in a room which contained machinery or large equipment, not small tools.

Paul Angle, director of the museum, testified as to the condition of the showcase and also identified some guns which were found in a bag and on the floor as those which were formerly in the showcase.

Edward Stashinski, an employee of the museum, testified as to his encounter with the defendant on March 11 (two days before the occurrence in question) at about 4:35 p. m. (which was after the second bell had rung as notice to visitors to leave the building) in the basement work area of the museum which the public is not allowed to enter. He stated that some people stray from the public portion of the museum to that portion which is not public but only during working hours, whereas his encounter with defendant was after working hours; that in his three and one-half years of employment at the museum no one, to his knowledge, has ever wandered into this particular area; and that:

[I]t is a work area where there are prized possessions where we do not allow people, and have posted the doorways and stairwells to this specifically, so in this case it is not just a question of slipping off out of the exhibit area as through an open door to see what is beyond the door, it is a case of coming down into the bowels of the building and so to see what is there, so this is not what they usually do, to come down the stairwell to do this.

Defendant testified in his own behalf and denied that he entered with the aforementioned tools. He stated that he visited the museum on March 13 at about 3:45 p. m.; that as he entered the main corridor he noticed a man and woman arguing; that he went to the woman’s defense and was struck by the man; and that he could remember nothing thereafter until placed in police custody (at about 7:30 p. m.).

Under prior law (Ill Rev Stats 1959, c 38, § 84) the crime of burglary was complete when one entered “willfully and maliciously” with intent to commit a felony. In People v. Kelley, 274 Ill 556,113 NE 926, the defendant was convicted of burglary under that statute after he entered a store when it was open to the public and allegedly took money from a customer. In reversing the conviction the Supreme Court stated at page 558 that:

The intent is an essential element of the crime of burglary and must be proved beyond a reasonable doubt. There is no evidence as to the intent with which the defendant entered the store, unless it is found in his conduct after entering. ... He may have taken advantage of the opportunity to commit larceny, but his presence in the store is as consistent with his innocence as with his guilt of the criminal intent at the time of his entry.

It can be inferred that if the prosecution in that case had shown the requisite intent at the time of defendant’s entry into the store it would have been considered a burglary. It was of no consequence under that statute whether the entry was with or without authority.

However, under section 19-1 (a) of the Criminal Code of 1961 (Ill Rev Stats 1963, c 38 § 19-1 (a)) the crime of burglary is complete when a person knowingly enters into or remains within a building “without authority” with the intent to commit a felony or theft. The State, electing to indict the defendant for “knowingly entering without authority” instead of “remaining without authority,” contends that whoever enters a building with the intent to commit a felony ipso facto enters without authority. The term “without authority” found in the present statute was substituted for the words “willfully and maliciously” under the prior law (Ill Rev Stats 1959, c 38, § 84), but the comments of the drafters with respect to the present burglary statute state that it is “merely a codification of the existing law in Illinois, combining the unlawful entry of various types of spaces prohibited by Section 84 with the burglar found in building prohibition of Section 86 [referring to Ill Rev Stats 1959, ch 38, §§ 84, 86].” In Pinson v. State, 91 Ark 434, 121 SW 751, the applicable statute defined burglary as the “unlawful entry” of specified areas with the intent to commit a felony. The court held that the entry of the defendant into a saloon during business hours was “unlawful” where he entered with the intent to steal whiskey since, although the saloon was open to the public, a party who enters with the intent to commit a felony enters without an invitation. The court, quoting with approval from People v. Barry, 94 Cal 481, stated at page 753, 29 P 1026, that:

He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished.

The authority which clothes an invitee who enters a public museum is not unlimited because the invitation itself is not unlimited. The opening of a museum’s doors to the public is an invitation to enter for the lawful purpose of viewing the exhibits on display. The authority of one who accepts such invitation is necessarily coincident with the terms of the offer, and it would be contrary to reason and ordinary human understanding to deduce that the welcome extended under those circumstances includes authority to enter for any different purpose, especially one which is unlawful or criminal. We therefore hold that the entry into an establishment which is open to the public, with the intent to commit a felony or theft, is without authority.

In a bench trial it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony. People v. Clark, 30 Ill2d 216, 195 NE2d 631. A reviewing court will not substitute its opinion for that of the trier of fact unless the proof is so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. People v. Stewart, 62 Ill App2d 428, 211 NE2d 154. In the instant case, the presence of a screwdriver, pliers, a flashlight and an automatic pistol, the circumstances surrounding the defendant’s arrest and his conduct only two days prior to his arrest constitute sufficient evidence to justify the finding of the trial court that defendant entered the museum with the intent to commit a theft. Therefore the decision of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       Section 19-1 (a) provides:
      A person commits burglary when without authority he knowingly enters into, or without authority remains within a building ... or any part thereof, with intent to commit therein a felony or theft.