text:
    People of the State of Illinois ex rel. Chicago Title and Trust Company, a Corporation, as Trustee Under Provisions of a Trust Agreement Dated March 28, 1962, and Known As Trust No. 44287, Plaintiff-Appellee, v. City of Des Plaines, Defendant-Appellant.
    Gen. No. 50,517.
    First District, Third Division.
    July 14, 1966.

      Robert J. Di Leonardi, of Des Plaines, for appellant.
    Haskins, Maguire & Haskins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment in a quo warranto proceeding in which the trial court held invalid an ordinance of the defendant municipality undertaking to annex certain unincorporated territory pursuant to the provisions of section 7-1-13 of the Cities and Villages Act (Ill Rev Stats, c 24, § 7-1-13 (1961)). This statute authorizes annexation without the consent of any of the owners, provided such territory is sixty acres or less and is “wholly bounded by one or more municipalities. 99

The property in question consisted of two parcels, one held in trust by the relator and hereinafter referred to as relator’s property, and the other a right-of-way belonging to the Chicago and Northwestern Railway. The parcels lie side by side and constitute a single unincorporated territory less than sixty acres in size, wholly encircled by the defendant municipality with one trivial exception later noted. The right-of-way lies between the municipality and one of four sides of the relator’s property. The trial court held in substance that the statute in question did not empower municipalities to annex railroad rights-of-way and that hence relator’s property was not wholly bounded by the defendant municipality as the statute required. Defendant argues that there is no statutory impediment to the annexation of railroad rights-of-way and that therefore the existence of the right-of-way between relator’s property and the municipal boundaries did not operate as a bar to the annexation of both parcels pursuant to the provisions of the statute.

Whether railroad rights-of-way may be annexed appears to be a question of first impression in this State, and both parties note the dearth of statutory or case authority on this point. Plaintiff stresses that railroads are the subject of comprehensive regulation and supervision and that they are under the general jurisdiction of the Illinois Commerce Commission, with the exception that municipalities are authorized to determine maximum speeds within the municipal limits. Ill Rev Stats, c 114, §§ 1-188 (1963). Plaintiff argues that had the legislature intended or envisioned such annexation by municipalities, it would have spelled out more fully the powers a municipality would have to regulate railroads. Defendant counters that the absence of any special provision concerning annexation of railroad property indicates that this type of property should not be differentiated from any other for purposes of annexation.

In deciding whether railroad rights-of-way are exempt from the provisions regulating involuntary annexation, it is necessary to examine various sections of the Cities and Villages Act dealing with changes in the status of unincorporated territory. The general authority for annexation of contiguous land is found in section 7-1-1, which provides as follows:

"Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.”

The words “any territory” have a plain meaning, and in the absence of any statutory provision or public policy to the contrary, must be held to include land used as a railroad right-of-way.

Section 7-1-13, which governs the annexation in the instant case, likewise refers to “any unincorporated territory” again without setting aside any particular type of property for special treatment. The apparent intention of the legislature was that any territory otherwise meeting the requirements of the section may be annexed. Remaining subsections of chapter 24, section 7, subsection 1, also fail to make any allusion to railroad lands as distinguished from other types of property. Indeed, the only mention of railroad rights-of-way is in section 7-1-2, which in part outlines an alternative procedure for annexation. The statute says:

“ [T] he corporate authorities of any such municipality may initiate the proceedings by enacting an ordinance expressing their desire to annex such described territory; provided, no tract of land in excess of 10 acres in area may be included in the ordinances of the municipality initiating the proceedings without the express consent of the owner thereof, unless the said tract (1) is subdivided into lots or blocks or (2) is bounded on at least 3 sides by lands subdivided into lots or blocks; a tract of land shall be deemed so bounded if it is actually separated from such subdivision only by the right-of-way of a railroad or other public utility or at a public highway.”

Clearly, the exceptions pertinent to railroads, other public utilities and public highways were made with the realization that as to such lands, platting or subdivision could not be expected and that their presence would otherwise unduly limit the application of the provisions. The existence of a specific exception for railroad rights-of-way in section 7-1-2, coupled with the absence of such an exception in the other annexation provisions, where platting is not a requirement, makes it evident that it was not the intention of the legislature to exempt railroad rights-of-way in general from the annexation laws.

Further support for the position of the municipality, that railroad property should not be treated differently, is found in section 2-2-5 of the Cities and Villages Act, which provides:

“Whenever any area of continguous territory, not exceeding 4 square miles, and not already included within the corporate limits of any municipality has residing thereon a population of not less than 2,500 persons ... it may be incorporated as a city. . . .”

No exception is made for railroad property, and it thus appears that a railroad right-of-way, if within the boundaries of a newly incorporated city, would be considered part of that city.

The provisions of the Cities and Villages Act make no exception for annexation of railroad rights-of-way. It would be farfetched for us to assume, as the relator appears to argue, that the regulatory powers of the Commerce Commission would otherwise be impaired when every day they are exercised over railroads whose property is within municipal boundaries. The reason that the Railroad Act contains no elaborate division of power between municipalities and the Commission is that none is needed.

Cases cited by plaintiff do not support its position. In Oregon Short Line R. Co. v. Village of Chubbuck, 83 Idaho 62, 357 P2d 1101 (1960), the Supreme Court of Idaho held invalid an ordinance of a municipality purporting to annex certain railroad property because the statutory requirements regulating the involuntary annexation of territory had not been met. The statute in that case provided as follows:

“Whenever any land lying contiguous or adjacent to any city, town, or village . . . shall have been, by the owner . . . thereof, laid off into lots or blocks, containing not more than five acres of land each ... or whenever the owner . . . has sold, or begun to sell off such contiguous or adjacent lands by metes and bounds in tracts not exceeding five acres, it shall be competent for the council or board of trustees ... by ordinance, to declare the same . . . a part of such city, town or village.” (Idaho Code, Title 50, ch 3, Sec 50-303 (1955).) (Emphasis added.)

The court noted that land used as a railroad right-of-way could not be laid off in lots or blocks or sold in tracts as required by statute, and hence was not subject to annexation.

Plaintiff also cites Forsyth v. City of Hammond, 142 Ind 505, 40 NE 267 (1895) and Township of Genesee v. Genesee County, 369 Mich 592, 120 NW2d 759 (1963) which deal with the use of a railroad right-of-way as a point of contiguity for annexation; in other words, the disregarding of a right-of-way which interferes with contiguity between the annexing body and the property to be annexed. This issue is not before the court in the instant case, as the ordinance in question undertook to annex the right-of-way and did not undertake to skip over it.

It is our conclusion that there is no statutory impediment to the annexation by a municipality of territory merely because it is used as a railroad right-of-way.

Plaintiff also pointed out to us that there is a small gap in the continuity of the boundary of the defendant municipality with the land proposed to be annexed. This gap of approximately 49 feet was inadvertently omitted in the course of annexation of other territory adjoining the southern boundary of the property. Plaintiff does not appear to contend that this gap alone, which constitutes eight-tenths of one percent of the boundary between the property in question and the municipality, keeps the property from being “wholly bounded,” as required by statute. The law has long treated the trivial with appropriate disdain, and the common sense maxim de minimis non curat lex has often been invoked in this state, e. g., Smith Oil & Refining Co. v. Department of Finance, 371 Ill 405, 21 NE2d 292, and in other jurisdictions. In Rose v. State, 19 Cal2d 713, 123 P2d 505, 517 (1942), the California Supreme Court affirmed a judgment for wrongful taking, even though the trial court based its computation of damages on a property frontage of 120 feet, whereas the frontage as shown in the evidence was 118 feet. This, said the court, was a “discrepancy so infinitesimal as to come within the de minimis rule,” (p 517). We conclude that the property in question was “wholly bounded” by the defendant municipality within the meaning of section 7-1-13.

Plaintiff also contends that a judgment order entered in 1942 which disconnected relator’s land from defendant is res judicata of the present matter. Res judicata exists only when there is identity of the cause of action, the parties, and the subject matter. The cause of action in the disconnection proceeding is not the same as that in the present quo warranto action challenging the validity of an annexation ordinance. In the former, the issues were whether the land (1) is not contiguous in whole or in part to any other municipality; (2) contains 20 or more acres; (3) is not subdivided into municipal lots or blocks; (4) is located on the border of the municipality; and (5) which, if disconnected, will not result in the isolation of any part of the municipality from the remainder of the municipality. (Ill Rev Stats, c 24, § 7-42 (1941).) In the present action the issues are whether the requirements for involuntary annexation hereinbefore mentioned have been met. Moreover, at the time of the order, relator’s land was at the border of the city, whereas now it is bounded on all sides by defendant’s territory.

Annexation is in its nature a response to changing governmental requirements which may be the result of population growth. A judgment rendered a quarter of a century ago when the property in question lay on the outskirts of a small municipality can hardly be viewed as controlling when that land has become an enclave in the midst of onrushing suburban development. A pri- or adjudication under those circumstances cannot be invoked to keep the property free from future annexation. The 1942 order is not res judicata of the instant case.

We hold that the ordinance in question is valid and that the judgment order of the trial court ousting the City of Des Plaines from exercising governmental authority over and within the property in question should be reversed.

Judgment reversed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Public Federal Savings and Loan Association of Chicago, a United States Corporation, Plaintiff, v. LaSalle National Bank, National Banking Association, Trustee Under Trust Agreement Dated July 22, 1958 and Known as Trust No. 21770; Ralph E. Brown, as Trustee Under Trust Deed Recorded as Document No. 17462725; and “Unknown Owners,” Defendants. Public Federal Savings and Loan Association of Chicago, a United States Corporation, Plaintiff-Appellee, v. Jack Stein, Third-Party Defendant-Appellant.
    Gen. No. 50,559.
    First District, Third Division.
    September 8, 1966.
    Rehearing denied November 18, 1966.

      Marshall Patner, of Chicago, for appellant.

      A. E. Peterson, John H. Meyer and John J. McCann, of Chicago (Leonard Higley, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant, Jack Stein, appeals from a decree in a mortgage foreclosure proceeding in which the trial court found that the plaintiff’s mortgage is a paramount lien, and that the defendant, Jack Stein, is the owner of a note secured by trust deed to one Ralph Brown. The decree further found that the defendant, Jack Stein, had acquired his note after the lien of the trust deed to Ralph Brown had been subordinated to the mortgage owned by the plaintiff, and that the rights of Jack Stein and all other defendants are subordinate to the lien of the mortgage foreclosed by the plaintiff.

The brief and argument of Jack Stein, defendant (appellant), was filed on October 15, 1965, and on November 2, 1965, the plaintiff (appellee) filed a motion to dismiss the appeal based upon the following grounds: (1) The record filed in this court is not in accord with the Praecipe for Record and is not certified as being complete; (2) the abstract of record does not conform to Rule 38 of the Supreme Court, and Rule 5(2) (j) of the Appellate Court of Illinois, First District, and (3) appellant’s failure to include in the record the transcript of the proceedings had in the trial court makes it impossible for this court to review the evidence available as a basis for the trial court’s decision. This motion was taken with the case. Thereafter the plaintiff filed its answering brief on January 7, 1966, and the reply brief of the defendant was thereafter filed on January 31,1966.

The decree entered in this case shows that testimony of witnesses was duly heard by the court. The defendant, Jack Stein, failed to have any of the evidence which was heard by the trial court included in the record on appeal. The defendant Stein (appellant) made arguments, not based upon any evidence in the record, to the effect that his note was not endorsed with the subordination agreement; that his note bore an endorsement that it was secured by a first mortgage when he acquired it; and that Winter & Hirsch, from whom he acquired the note, was never in the chain of title. The note held by Stein is not a part of the record before us, nor is the trust deed, securing said note, in this record. The record filed by defendant Stein does not disclose what endorsements, if any, were made on the note owned by Stein and the trust deed securing that note. The chain of title is not in the record, and therefore the statement that Winter & Hirsch was never in the chain of title is not supported by the record. The plaintiff in its answering brief sought to confine itself to the record.

The decree of foreclosure in this case found in part as follows:

“4. That the note secured by the Trust Deed to Ralph Brown as Trustee, Document No. 17462725, is now owned by Jack Stein; that prior to Mr. Stein’s acquisition of said note from Winter & Hirsch, Inc. the lien of the Trust Deed securing said note was duly subordinated to the lien of the Plaintiff’s Mortgage; that the rights and interests of the Defendants Jack Stein and Ralph Brown, Trustee, in and to the property hereinafter described are subject and subordinate to the lien of the Plaintiff mentioned in paragraph 3 of this Decree.”

The evidence heard by the trial court on this point is presumed to have been sufficient to have sustained the finding, where a report of proceedings involving the trial court’s hearing is not before us on appeal.

In Elston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill App2d 218, 197 NE2d 143, the court on page 225 said:

“The record on the appeal before us does not contain a report of the proceedings involving the trial court’s hearing on the petitions and answers thereto for sanctions. The record before us does indicate that: ‘the court after having heard the evidence and arguments of counsel’ entered the judgments or sanctions. Therefore, we must presume that the evidence was sufficient to sustain the findings below and to support the decision of the trial court on said issues. Smith v. Smith (1955), 5 Ill App2d 383, 125 NE2d 693.”

Any doubt arising from the incompleteness of the record will be resolved against appellant. People v. Zimmerman, 57 Ill App2d 190, 206 NE2d 741.

In Culver v. Schroth, 153 Ill 437, 39 NE 115, it was held that in the absence of a complete record the decree of the circuit court will be supported by every reasonable intendment and presumption.

The clerk of the trial court, in certifying to the record, struck out the words “perfect and complete” which preceded the words “transcript of record.” The clerk did, however, certify that it was a true transcript of record.

In Bertrand v. Taylor, 87 Ill 235, on page 237 the court said:

“Again, it is claimed that, . . . the transcript does not show a sufficient foundation for the original decree, and hence that the decree ought to be reversed.
“There are two insurmountable objections to this. This transcript is not certified to be ‘a full copy of the record,’ but merely a complete ‘copy of certain papers filed and certain proceedings had and entered of record’ in the case. The transcript may contain a complete copy of certain of these proceedings, and yet there may be others which are not copied at all.”

The decree in this case, in the absence of a complete record, will be supported by every reasonable intendment and presumption. While the praecipe for record directed the clerk to prepare a transcript of the entire record, including documents filed and all orders entered hereafter, it is common knowledge that the clerk makes up his record from documents, transcripts and the like supplied him by the attorney for the appellant.

The abstract of record in this case reads as follows:

“Page of Record
3-5 Complaint to foreclose mortgage by plaintiff, naming (among other defendants) Ralph Brown, as trustee under trust deed dated December 9,
6-7 1958, as recorded, and mortgage to plaintiff dated
8-9 April 12, 1962, as recorded, and note of even date secured by that mortgage.
11-12 Motion to strike by Ralph Brown, as trustee under the trust deed.
14 Order striking the complaint for foreclosure.
16 Amended complaint by plaintiff to foreclose 16-17 mortgage, incorporating paragraphs one through three of the complaint and in paragraph four alleging subordination of the mortgage in Ralph Brown by a document dated May 17, 1962, attached as Exhibit A, executed by the holder of the note.
Exhibit A — Subordination of Lien
20-24 Answer to amended complaint by Ralph Brown, as trustee and pro se.
22-23 In paragraphs 4 through 5 denied that the subordination agreement, Exhibit A, is effective as to the trustee, and repeated the allegations of these paragraphs in affirmative defense.
“Page of Record
26-27 Reply by plaintiff denying the allegations in the affirmative defense.
29-30 Amended reply denying that the subordination agreement did not subordinate the interest of the trustee on the mortgage.
32-33 Petition to vacate default and for leave to file appearance of Jack Stein, as assignee of the note secured by the mortgage wherein Ralph Brown was trustee.
35 Order granting the petition.
37 Stipulation that the answer of Ralph Brown stand as the answer of Jack Stein as owner of the note in question.
39-44 Decree of foreclosure in favor of plaintiff in subordinating the lien of Jack Stein and the Trustee.
40 ‘4. That the note secured by the Trust Deed to Ralph Brown as Trustee, Document No. 17462725, is now owned by Jack Stein; that prior to Mr. Stein’s acquisition of said note from Winter & Hirsch, Inc. the lien of the Trust Deed securing said note was duly subordinated to the lien of the Plaintiff’s Mortgage; that the rights and interests of the Defendants Jack Stein and Ralph Brown, Trustee, in and to the property hereinafter described are subject and subordinate to the lien of the Plaintiff mentioned in paragraph 3 of this Decree.’
46 Notice of appeal and proof of service.
48 Praecipe for Record and proof of service.
49 Certificate of Clerk.
Respectfully submitted,
MARSHALL PATNER,
Attorney for Defendant.”

The motion of plaintiff to dismiss the appeal is partly-based upon failure of the defendant (appellant) to file a proper abstract of record.

In the case of Gribben v. Interstate Motor Freight System Co., 38 Ill App2d 123, 186 NE2d 100, the court was most critical of an abstract which bears great similarity to the one filed in the present case. On page 127 the court said:

“The many exhibits which were received in evidence are neither in the abstract nor abstracted and there is no index indicating the nature of the exhibits. This is a violation of rule 6 of this court, Ill Rev Stats (1961) c 110, § 201.6. This rule provides in part that: ‘The abstract shall be preceded by a complete index, alphabetically arranged, indicating the nature of each exhibit, i. e., Will, Trust Deed, Contract, and the like, and the page on which it may be found. . . .’ ”

The court also in that case held that the appellants cannot sidestep the obligation of filing a sufficient abstract because the rule permits the appellee to file an additional abstract, and further stated that the initial responsibility of an appellant never shifts to the appellee, and that the latter is never compelled to do what the former should have done. In that case the motion to dismiss the appeal was sustained, and the appeal was dismissed.

The issue in the trial court apparently was whether the lien of the plaintiff (appellee) was prior to the lien of the defendant Stein. In the absence of a complete report of proceedings, together with the exhibits admitted in evidence, this court is bound to presume that the decree of the trial court was supported by the evidence.

After the appellant had filed his reply brief, and less than a week before the hearing on oral argument, a motion was made by the defendant Stein to supplement the record with a partial report of proceedings. This partial transcript was not certified by the trial judge and con-tamed none of the evidence in chief offered by the plaintiff, nor any of the exhibits introduced in evidence. This motion has been denied. Likewise, the motion by the defendant Stein to supplement the record, which contains an order entered by the trial court, which order refers to “Exhibits 1 and 2 attached to a motion,” and a copy of what purports to be a trust deed and a note secured by a trust deed, was denied for the reason that while the order of the trial court refers to Exhibits 1 and 2 attached to a motion, the motion is not made a part of the record, and it is impossible to determine what exhibits are referred to. The clerk of the trial court certified to the accuracy of the copy of the order. The order standing alone is not helpful unless the exhibits included in the additional record were in some way identified as the exhibits the court had in mind when it entered the order. Furthermore, the order and the exhibits taken together, without a full and complete report of proceedings at the trial, would not tend to overcome the presumption that the evidence heard at the trial supported the decree of the trial judge.

The defendant Stein relies upon section 92 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 92), which provides in part as follows:

“(1) In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,
“(c) Order or permit the record to be amended by correcting errors or by adding matters which should have been included;”

In the instant case the motions made by Stein were made after the plaintiff had filed its printed brief and had filed a printed additional abstract of record. Even if the matters sought to be added would make the record complete, which they do not, it would be manifestly unfair to any appellee to permit the record to be amended by the appellant after the filing of answering briefs and abstracts. We further feel that under such circumstances it would be an abuse of discretion for this court to have allowed the filing of a partial report of proceedings and a partial supplemental record when requested, for the reason that the partial report of proceedings and the additional record would not be sufficient to overcome the presumption that the decree of the trial court was based upon the evidence, and because it would have placed an additional burden upon the appellee in the preparing of additional briefs and the cost of printing the same.

For the foregoing reasons the motion of the plaintiff (appellee) to dismiss the appeal is allowed.

Appeal dismissed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Appellee, v. James Howard Miller, Appellant.
    Gen. Nos. 49,965, 50,145.
    First District, Fourth Division.
    September 9, 1966.

      David M. Wishnick, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, James Howard Miller, was convicted of armed robbery after a bench trial and was sentenced to the penitentiary for a term of not less than seven nor more than fifteen years.

Contentions on Appeal

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

(2) defendant was denied his right to examine a prior written statement of a prosecution witness to the police; and

(3) evidence introduced at the trial was obtained by means of an unconstitutional search and seizure.

Evidence

On December 14, 1962, the S & S Food and Liquor Mart in Posen, Illinois, was robbed by a man identified as the defendant by two witnesses: Carol Shute, a cashier, and Hyman Schneider, the store manager. According to the testimony defendant entered the store at 9:25 p. m. carrying a rifle and wearing a rain slicker with a hood which was on his head; defendant walked to the counter, aimed the rifle at Mrs. Shute and demanded the money in the cash register, which she gave to him in a paper bag (she estimated the amount of money to be “well over $100” but Schneider stated it was about $378). As she handed defendant the money Schneider came from the rear of the store, whereupon defendant turned and pointed the rifle at him and backed out of the store carrying the bag of money. Schneider grabbed a gun and gave chase into the parking lot but stopped when the defendant fired a shot at him. Defendant drove away in a blue automobile (either a Ford or Plymouth), whereupon he (Schneider) returned to the store and called the police. Defendant’s automobile was stopped approximately thirty-five minutes later by a South Holland police officer (Ted DeGraff) because it was weaving from lane to lane. Defendant had been driving with one hand and putting something into the glove compartment with the other hand. Defendant first told the officer that he had not been drinking but later stated that he had a few drinks. After taking the defendant’s license, DeGraff returned to his squad car and heard a radio broadcast; he looked at the defendant’s car and “it matched somewhat”; he radioed for another squad car and defendant was arrested, after which his automobile was searched. Found in the trunk were a rifle with one empty shell in the chamber and a slicker (both of which were introduced into evidence at the trial). Both were identified by Mrs. Shute and Schneider as being similar to those used by the defendant during the robbery. The officers also found dollar bills strewn on and under the front seat and in the glove compartment of the car. None of the articles were removed from defendant’s car nor was the money counted.

Defendant was taken to the South Holland police station and shortly thereafter the Posen police chief (Andrew Steczo) arrived with Hyman Schneider. Schneider identified defendant as the robber. Defendant was turned over to the Posen police after which Steczo, accompanied by Schneider, searched the defendant’s car and removed the aforesaid articles therefrom (Steczo counted the money and found $116). The defendant was then transported to Posen by Steczo in the company of Schneider and, en route to the police station, they stopped at the S & S Food Mart where the defendant was identified as the robber by Mrs. Shute.

At the trial defendant denied committing the robbery. He stated that on the day of the robbery he had received and cashed his paycheck and that after work he went on a squirrel hunt from which he was returning when arrested. The defendant also presented the testimony of Helen King, paymaster at U. S. Reduction Company in East Chicago, Indiana, who stated that defendant was employed there until the week ending December 16, 1962. She could not state whether defendant was working on December 14. She testified that defendant’s earnings in the weeks prior to the robbery ranged from $90 to $128 per week. (She was not asked whether defendant was paid any money on the day of the robbery.)

Opinion

(1) We find that the evidence adduced at the trial was sufficient to prove the defendant guilty beyond a reasonable doubt. He was positively identified by two witnesses who had ample opportunity to view him. The fact that defendant was not viewed in a lineup does not destroy the competency of the identification. People v. McCall, 29 Ill2d 292, 194 NE2d 222. The credibility of the witnesses in a bench trial is for the trial judge to determine. People v. Johnson, 47 Ill App2d 441, 198 NE2d 173.

(2) Defendant’s contention that he was denied his right to examine a prior written statement to the police of a prosecution witness (Carol Shute) is without merit. While Mrs. Shute first stated that she gave the police a description of the robber, after some confusion she testified upon examination by the trial judge that the only written statement which she signed was given in the State’s Attorney’s office in connection with her Grand Jury testimony. The judge ordered the Posen police to produce its entire file in the case but no statement was found. A defendant is entitled, to the production of a statement for impeachment purposes only after a showing that such statement exists. People v. Wright, 30 Ill2d 519, 198 NE2d 316; People v. Arnold, 76 Ill App2d 269.

While defendant also argues that the trial judge abruptly terminated the cross-examination of Chief Steczo before defense counsel was through questioning the witness concerning the possible whereabouts of Mrs. Shute’s statement, we find no substantiation of this in the record.

(3) Defendant contends for the first time on appeal that his raincoat and rifle were inadmissible as evidence because they were obtained by means of an unconstitutional search and seizure. While defendant concedes that during the trial no objection was interposed to the use or admission into evidence of the slicker and rifle seized from the trunk of his car, he contends that the failure of trial counsel to object could not operate as a waiver of his constitutional rights, relying upon Fay v. Noia, 372 US 391.

While Fay v. Noia, supra, was a habeas corpus proceeding, the doctrine expounded by the court in that case was further discussed by the court in a direct appeal in Henry v. Mississippi, 379 US 443. In the latter case, decided on January 18, 1965, the United States Supreme Court vacated a judgment of conviction and remanded the cause to the state court for a hearing to determine whether the petitioner had knowingly waived his right to complain of the admission into evidence of a police officer’s testimony which was based upon his findings during an alleged illegal search. The court pointed out that while no contemporaneous objection was made, at the close of the State’s evidence petitioner moved for a directed verdict on the ground of the erroneous admission of the officer’s testimony. The court also stated at pages 448, 449 that:

The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new trial avoided. But on the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner’s motion at the close of the State’s evidence asking for a directed verdict because of the erroneous admission of the officer’s testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action. ... In these circumstances, the delay until the close of the State’s case in presenting the objection cannot be said to have frustrated the State’s interest in avoiding delay and waste of time in the disposition of the case.

In the instant case, however, the question of the alleged illegally seized evidence was not raised at any time during the trial or in defendant’s post-trial motions for a new trial and in arrest of judgment. Therefore, the trial judge was not given an opportunity either to conduct the trial without the alleged tainted evidence or to exclude the evidence.

Therefore, the instant case is distinguishable from Henry v. Mississippi, supra.

In People v. Harris, 33 Ill2d 389, 211 NE2d 693, filed subsequent to the decision in Henry v. Mississippi, supra, on November 19, 1965, the Illinois Supreme Court considered the sole argument that “the wallet in question was obtained by an illegal search and seizure pursuant to an illegal arrest.” The court stated at page 390:

[W] e have carefully examined the entire record and find that neither the defendant nor his counsel had at any time moved to suppress the evidence in question. We also find a complete lack of any objection to the admission of this evidence on the ground that it was illegally obtained or on any other specific ground.

Defendant’s post-trial motions for a new trial and in arrest of judgment are also devoid of any reference to the impropriety of the admission of this evidence .... It is well settled that this court will not consider the question of illegal search and seizure . . . where it has not been raised before the trial court.

To permit the defendant in the instant case to raise the issue of the illegal search and seizure for the first time on appeal would frustrate the State’s interest in avoiding delay and waste of time in the disposition of the case. We find that defendant waived any objections to the introduction into evidence of the articles in question.

Holding on Appeal

The judgment of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       While defense counsel insisted upon production of Carol Shute’s alleged statement to the police, counsel at no time requested any statement which she may have made in connection with her Grand Jury testimony.

       The trial court in that case charged the jury that the defendant could not be found guilty “on the unsupported and uneorroborated testimony of the complainant alone.” The testimony of the police officer was the only corroborating testimony.


text:
    People of the State of Illinois, Appellee, v. Marcus Arnold, Appellant.
    Gen. No. 50,773.
    First District, Fourth Division.
    September 9, 1966.
    Supplemental opinion October 28, 1966.

      Donald Lipman, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Marcus Arnold, was convicted after a jury trial of theft from the person and was sentenced to the penitentiary for a term of not less than seven nor more than ten years.

Contentions on Appeal

1. His petition for substitution of judge was erroneously denied;

2. The indictment was insufficient;

3. The court erroneously refused to order that Grand Jury minutes be furnished him;

4. The court erroneously permitted the State to suppress the statement of a witness; and

5. He was not proven guilty beyond a reasonable doubt.

Evidence

The complaining witness, LaVerne Matokar, testified that on March 23,1963, at 5:15 p. m., while stepping onto a bus, a negro man in a black coat, black hat, and black sunglasses shoved her; she turned and saw his hand in her purse and he was holding her cigaret case; she screamed and the man ran, dropping her cigaret case, after which she picked up the case but a $20 bill, a portion of her salary which she had placed therein, was missing. About five minutes later the police brought back a man in a squadrol, and she identified him.

According to the testimony of the police officers, at approximately 5:15 p. m. on the day in qúestion, about three and one-half blocks from the scene of the offense, they saw the defendant running and ordered him to halt. He continued running until one of the officers pulled his gun and finally stopped him. When defendant was searched at the station he had neither a $20 bill nor sunglasses in his possession, only some small change. The officers then searched the squad car in which the defendant was transported to the police station and found sunglasses lodged in a crevice in the back seat. At the time of his arrest defendant denied committing the robbery and told the officers that he was running to catch a bus.

The only testimony on behalf of the defendant was that of a private detective who stated that he saw Officer Jennings, one of the arresting officers, at the police station on January 12, 1965, and that Jennings told him that the cigaret case was found in an alley several days after the crime. Officer Jennings denied that he had made this statement.

Opinion

(1) On January 18, 1965, the defendant filed his petition in which he alleged that he could not receive a fair trial because the trial judge was prejudiced, and that said prejudice came to his attention on January 18. The petition was denied. On January 19, the day of trial, the court explained for the record that a pretrial conference was held prior to the petition and that after the conference defendant demanded a jury trial.

The right to a substitution of judge is absolute if prejudice is alleged. People v. Wallenberg, 24 Ill2d 355, 181 NE2d 146. The statutory provisions authorizing a substitution should receive liberal interpretation in order to permit rather than deny a substitution. People v. Mosley, 24 Ill2d 565, 182 NE2d 568. Even if the petition is presented the day of the trial in a criminal case and if prejudice is alleged, so long as the trial judge had heard no matters pertaining to the merits nor indicated his views thereon, the petition for a substitution is filed within the boundaries of the statutes and in apt time. People v. Gregory, 16 Ill App2d 576, 149 NE2d 198. And even if the prejudice of the judge came to defendant’s knowledge on the day of trial his petition presented at that time is valid. People v. McGlothen, 26 Ill2d 392, 186 NE2d 319. An improper denial of a petition for substitution of judge constitutes reversible error. People v. Kostos, 21 Ill2d 451,173 NE2d 469.

The People urge that in People v. Lawrence, 29 Ill2d 426,194 NE2d 337, the court denied a petition under similar conditions. In that case the court stated at pages 427, 428 that:

Under the circumstances here presented the trial judge was fully warranted in denying the petition. While the right of a defendant to a change of venue on account of the prejudice of the judge is absolute, ... it is at the same time a right which may be waived if not asserted in apt time. ... In such regard, we have consistently held that a petition for a change of venue must be filed at the earliest practical moment, and have found that petitions delayed until after the trial judge has by his rulings passed upon substantive issues, and indicated his views on the merits of the cause, come too late. . . . [T]he requirement of “earliest practical” filing is designed to preclude counsel from first ascertaining the attitude of the court on a hearing relating to some of the issues of the case, and then, if the court is not in harmony with counsel’s theory, to assert the prejudice of the court as ground for a change of venue.
In the present case the petition for a change of venue came only after the conclusion of the conference sought by defendant for the obvious purpose of obtaining a lenient disposition of the charges without the necessity of a trial, and only after defendant ascertained what punishment he might receive if he pleaded guilty.

People v. Lawrence, supra, is distinguishable because the record in the instant case does not indicate that it was the defendant who requested the pretrial conference, or that the trial judge passed upon any substantive issue or indicated his views on the merits of the case. We therefore find that the petition for a substitution of judge was erroneously denied.

(2) A. Defendant claims that the indictment is insufficient in that the place of the offense is not set out as definitely as could have been done. This contention was resolved to be without merit in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97; People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed in 34 Ill2d 179, 214 NE2d 765.

B. It is urged that defendant was charged with “theft from the person” and that there is no such crime; and in addition that the facts of the crime were not specifically set forth in the indictment. In People v. Jackson, 66 Ill App2d 276, 214 NE2d 316, the court carefully considered similar arguments under comparable facts and held that a conviction was proper.

(3) Defendant urges that the court erroneously refused to order the State to furnish a copy of the Grand Jury minutes. The record shows that the minutes had not been written up and no prior demand for them had been made. This condition will not prevail at the new trial.

(4) Defendant’s request at the trial for a witness’ statement was denied after the court determined that the State had no statement. A defendant is entitled to the production of a statement for impeachment purposes only after a showing that such a statement exists. Johnston v. United States, 260 F2d 345; People v. Wright, 30 Ill2d 519, 198 NE2d 316. We find no error in the judge’s ruling on this point.

(5) Defendant complains that he was not proven guilty beyond a reasonable doubt. However, as stated in People v. Lamphear, 6 Ill2d 346, 358, 128 NE2d 892:

[W] here the evidence is not so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to justify our entertaining reasonable doubt of the defendants’ guilt the jury verdict will be sustained.

We find that the evidence adduced was sufficient to prove the defendant guilty beyond a reasonable doubt.

Holding on Appeal

Since we have found that defendant was entitled to a substitution of judge, the judgment of the trial court is reversed and the cause remanded for a new trial in a manner not inconsistent with the views expressed in this opinion.

Reversed, and remanded with directions.

ENGLISH and McCORMICK, JJ., concur.

Supplemental Opinion On Rehearing

In its petition for rehearing the prosection contends for the first time that the defendant’s petition for substitution of judge was properly denied because (1) in his petition defendant failed to allege the specific facts in support of his assertion that the trial judge was prejudiced, and (2) no affidavit accompanied the petition.

Defendant’s petition was filed on January 18, 1965, more than thirty days after the case was placed on the trial call. Therefore, the procedure with regard to his petition is governed by section 114^5 (c) of the Criminal Code of 1961 (Ill Rev Stats, 1965, ch 38, § 114-5 (c)), which provides in relevant part that:

[A] ny defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.

According to the Committee Comments this section is to be read in pari materia with Illinois Revised Statutes, 1965, chapter 146, §§ 18-35. Section 18 of chapter 146, supra, provides that it is “cause” for a change of venue when a defendant fears “that he will not receive a fair and impartial trial in the court in which the case is pending, because the judge of the court is . . . prejudiced against him . . . .” In his petition defendant alleged under oath that he could not receive a fair and impartial trial because the trial judge was prejudiced. That allegation is the statement of “cause.”

Section 114-5(c), supra, then provides that the trial judge shall conduct a hearing to determine the merits of the petition. Since no hearing was held, the allegations of the instant petition as to prejudice and the time when knowledge came to the defendant must be taken as true. While the record states that the defendant’s petition was denied after hearing from both counsel, according to the report of proceedings contained in the record the requisite hearing was never held. Therefore the petition for substitution of judge was improperly denied.

The contention of the prosecution that no affidavit accompanied defendant’s petition is without merit since an examination of the record reveals that defendant filed a verified petition, which is a sufficient compliance with section 114-5 (c), supra.

We adhere to our original opinion reversing the judgment of the trial court and remanding the cause for a new trial.

Reversed and remanded with directions.

       In his petition defendant also stated that the prejudice came to his knowledge on January 18,1965.


text:
    Joseph Svoboda, et al., Plaintiffs-Appellants, v. William Blevins, Defendant-Appellee.
    Gen. No. 49,925.
    First District, First Division.
    October 17, 1966.

      H. P. Hutul, of Chicago, for appellants.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiffs appeal from a not guilty verdict and judgment for defendant in their tort action and seek a new trial. Their principal contention is that they did not receive a fair trial, because of the prejudicial misconduct of defendant’s counsel during the trial.

There is no dispute as to the occurrence. On December 15,1960, plaintiffs, who worked together as truck drivers, were on their way home from work in an automobile owned and driven by plaintiff Svoboda. They had stopped and were waiting in a line of traffic for an intersection traffic light change, when their car was struck from the rear by an automobile driven by defendant.

The evidence for plaintiffs consists of testimony by plaintiffs and their attending physician, Dr. Gerald J. Rabin, who had been recommended to them by their attorney. Defendant was interrogated as an adverse witness under section 60 of the Civil Practice Act. Both plaintiffs testified as to head and neck pains and loss of time at work. There was no evidence as to lost pay or automobile repairs. Dr. Rabin testified that his charges for Roper were $145 and for Svoboda $344, and both bills were unpaid. He also testified that Svoboda had a hospital bill of $129.40. Defendant presented no evidence.

Defendant’s attorney commenced his cross-examination of plaintiff Roper, by questioning him about a finger injury which occurred two years prior to the trial and, after ascertaining that the doctor who treated Roper for his finger was not his present physician, asked, “And, you didn’t call up your attorney, Mr. Hutul, and ask him to get the name of a doctor?” An objection was sustained. In chambers and out of the presence of the jury, the court said, “The only issues in this case, who was responsible for this accident and was this man hurt ? Those are the issues.” The cross-examination was resumed with a series of questions about Mrs. Roper working for a medical center and whether Roper had consulted a doctor at the medical center or gone to the clinic “for anything as a result of this accident.” Objections were overruled, and Roper’s answer “No” was permitted to stand.

Defendant’s attorney, over repeated objections and in the presence of the jury, continued his questioning as to how Roper happened to go to Dr. Rabin and how he made contact with his attorney of record. At one point the attorney remarked to the court, “I think your Honor, this man was sent to a doctor by a lawyer.” His questions to Roper included, “The attorney told you to take a couple [weeks] off work, didn’t he? . . . Did you tell the attorney your wife worked for a medical center ? . . . Did she [Mrs. Svoboda] tell you that they had heard that you could get good results from a lawsuit by Dr. Rabin?” When Roper said, “I had an examination and several X-rays . . . ,” the next question was, “Did Doctor Rabin tell you that or did the attorney tell you that?”

At one point the court, in sustaining an objection, said, “Counsel, I am going to admonish you to discontinue asking the witness questions in regard to the alleged conversations between the witness and with the witness and the lawyers. ... I am giving you my admonition, let’s get on with it.”

The cross-examination of plaintiff Svoboda followed the same line of questions — as to how he made contact with his attorney and Dr. Rabin. The record is replete with the sustaining of objections made to/these questions and with the court striking the remarks of defendant’s counsel. When the court asked the relevancy of the question, “Who was the lawyer that was recommended to you?”, the attorney for the defendant responded, “I believe the issues in the case are the injuries of this man and that this is not a bona fide claim. I think I have the right to try and show this.” In final argument, counsel referred to plaintiffs as “those other two palookas.”

We conclude that this record sustains plaintiffs’ contention that defendant’s counsel “engaged in improper conduct, made improper remarks, conducted his interrogation of the witnesses along improper lines of questioning, and improperly interjected his opinions into the case during the trial and during his final argument.” This court, in Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 176 NE2d 551 (1961), said (p 43):

“Such conduct has been recognized as cause for reversal in this State, regardless of whether the court has ordered the remarks stricken or not.”

A trial should be conducted with dignity and without prejudicial conduct of counsel. Obviously defendant’s counsel was endeavoring to use the trial as an inquiry into the assumed unethical conduct of plaintiffs’ attorney and physician. This was an inquiry that should have been presented to the proper professional associations and not used as a vehicle “to inflame the passions or arouse the prejudices of the jury” in order to defeat plaintiffs’ action. As the court noted, the only issues were plaintiffs’ damages and the responsibility of defendant, if any. We believe this record comes within the remarks made by our Supreme Court in Coal Creek Drain, and Levee Dist. v. Sanitary Dist., 336 Ill 11, 167 NE 807 (1929), atp 45:

“Argument of counsel is for the purpose of assisting the jury fairly, deliberately and impartially to arrive at the truth of the facts submitted to them for their decision, and it is highly improper for an attorney to do or say anything in argument the only effect of which will be to inflame the passions or arouse the prejudices of the jury against one of the parties without throwing any light upon the question for decision. (People v. Bimbo, 314 Ill 449.) Litigants are entitled to a fair, dispassionate and impartial trial, and counsel who overstep the bounds of propriety in argument and so prevent such trial have no ground for complaint when courts of review correct their misconduct by granting new trials.”

We conclude that plaintiffs’ motion for a mistrial should have been allowed and a new trial granted. For the reasons given, the judgment in favor of defendant is reversed and the cause is remanded for a new trial.

Reversed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J„ concur.


author: MR. JUSTICE MURPHY

text:
    Ronald Ray Jackson, Plaintiff-Appellee, v. John F. Beasley Construction Company, Swift & Company, and Mississippi Valley Structural Steel Company, a Corporation, Defendants, Appeal of Swift & Company, Defendant-Appellant.
    Gen. Nos. 50,227, 50,244.
    First District, First Division.
    October 17, 1966.

      Tom L. Yates and Winston, Strawn, Smith & Patterson, of Chicago (Edward J. Wendrow, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action brought by plaintiff against the three defendants under the common law of Missouri for injuries received when he fell from a “catwalk” in a building under construction. At the close of the plaintiff’s case, the court directed a verdict for defendant Mississippi Valley. The jury returned a verdict in favor of defendant Beasley and a $90,000 verdict in favor of plaintiff against defendant Swift. The jury also specially found that plaintiff was not guilty of contributory negligence. Swift appeals from the judgment against it.

On appeal, Swift’s principal contentions are (1) the judgment against Swift should be reversed because there was no evidence that it was guilty of any negligence toward the plaintiff; (2) plaintiff was guilty of contributory negligence as a matter of law; and (3) the court committed reversible error in the giving of instructions on behalf of plaintiff and Beasley and in refusing instructions and a special interrogatory tendered by Swift.

Swift, prior to October 15, 1956, the date plaintiff was injured, had entered into a number of prime contracts for the construction of a fertilizer plant in St. Joseph, Missouri. One of the prime contracts was with the A. C. Sam-ford Company, which was to be responsible for “the construction and completion of a plant food manufacturing building, office building, pump house and roadways.” Another prime contract was with M. L. Anderson, doing business as Kayo Anderson, not a defendant here. The provisions of this contract are not in the record, but the evidence indicates that Anderson had a machinery installation contract. A third prime contract was entered into with the Mississippi Valley Structural Steel Company, which was to do “all the structural and miscellaneous steel work, walkways and grating erected in place for a 144 foot by 410 foot single story plant food manufacturing building.” Mississippi Valley, in turn, subcontracted with defendant John F. Beasley Construction to erect the structural steel work as it was fabricated and furnished by Mississippi Valley.

Both the contracts with Samford and with Mississippi Valley called for the work to be “constructed to the satisfaction of, and under the supervision and in accordance with the specifications and drawings prepared by E. A. Schiewe, the architect.” Also, both contracts were signed on behalf of Swift by “E. A. Schiewe, Architect,” who was manager or head of Swift’s Construction Department. In each contract, the “Architect’s status” provided that “he is not the agent of the owner, except in structural emergencies, and except when in special instances he is authorized by the owner to so act.” The provisions also included “Architect’s authority in emergencies”:

“The architect has authority to stop the progress of the work whenever, in his opinion, such stoppage may be necessary to insure the proper execution of the contract. In an emergency affecting the safety of life or of the structure or of adjoining property, he has authority to make such changes or to order such work, extra to the contract, or otherwise, as may in his opinion be necessary.”

During the erection of the plant, Harold R. Brown, a full-time employee of Swift Construction Department, was on the job as the “architect’s representative” for approximately one year. It was his duty to see that the contractors complied with the terms of the contract. He checked the quality of the materials that were delivered to see that no substitutions were made. He was not a graduate engineer.

The plaintiff’s testimony shows that he was a carpenter employed by Samford [not a defendant] and started to work on the building “around October 1, 1956.” There were various other trades working there, and three catwalks, made of expanded metal, were used by the men “in going to and coming from their work whenever they were available to the men.”

On October 15, 1956, he was working on the roof, and about 3:00 p. m. he had occasion to leave the roof to go to the rest room, which was on the ground level. He said, “I had occasion to get on a catwalk there. I had never been on this particular catwalk before. I was going to move east, on this catwalk, to a ladder that was in front of me. That ladder led down; it was made of metal. ... I was walking along. Something unusual very definitely did happen to me. I fell through a hole in the catwalk, about 36 feet. Below me on the ground were some conveyor forms. The surface of the floor was concrete.”

It was the first time plaintiff had used that particular catwalk, and he was “walking, with my eyes ahead facing the ladder, which was ten, fifteen feet or so from me— maybe a little further. I did not turn my head to talk to Russell about that time. When I turned my head to talk to Russell I was further back — five steps or so. That would put me ten — fifteen feet from the ladder, roughly. At the time I turned and talked to Russell I had stopped. . . . After I had this conversation with Mr. Russell, I started up again. Then I was looking in the general direction of the ladder. I never saw that missing area. The shadows obstructed my vision. The sun’s rays was right back over my head. . . . My eyes were on the general area where I was walking. I was not walking with my head up in the air, and I wasn’t afraid of becoming dizzy. I had been instructed never to look at your feet. Looking at a distance of about six or seven or eight feet ahead of me as I was walking along, I could look at the floor of the catwalk. It appears to be solid from an angle.”

Russell Osborn, a fellow employee, testified on behalf of plaintiff. He was working about six feet above plaintiff and a little to the rear. Plaintiff was walking on the catwalk with his back toward him, and plaintiff looked back at him and said, “Let’s go and get a cool drink of water.” “Right immediately after he talked he fell. When he talked to me he glanced back at me. By glancing, he turned his head (indicating). Just shortly after he talked to me he said, ‘Oh’ and disappeared from view.” He further testified that neither he nor plaintiff had ever used this particular catwalk before the occurrence. After plaintiff fell, Osborn saw there was a piece of the catwalk missing — “about a three foot section.”

Beasley workmen had left the jobsite on September 12, 1956, without having completed the catwalk from which plaintiff fell, because all the material required had not been shipped by Mississippi Valley. The catwalk, a permanent part of the structure, was about three feet wide with a railing on one side and was made of rust colored steel wire mesh.

Beasley’s foreman, John T. Feltman, testified that all Beasley personnel left on September 12, 1956, and on that date he had occasion to check the job with Brown. “That is called sealing the job. It is a final inspection of the job to make sure that everything has been done according to their satisfaction. Mr. Brown and Mr. Blizzard [Beasley’s job superintendent] accompanied me on that tour. We used a punch list . . . and as you go through the project, if a little minor things are needed to be changed, they will mark it down on this paper and in turn, those are the corrections that is needed to be made. That was done on this occasion. That is customary in the contractor business.”

Feltman further testified that they discussed “this piece of expanded metal that was missing in this catwalk. Mr. Brown told us that if we would go ahead and put a plank over this open hole, that he would have this Steel Construction Company or some other construction company on the project put the metal in when it arrived on the jobsite. The metal piece was not available at that time because it was failed to be shipped by Mississippi Valley . . . and locally could not be purchased. ... In accordance with Mr. Brown’s suggestion, I put a two by twelve plank over the hole . . . and wired it down. They were my employees. I saw the job done. It was done when I left the job on September 12. After that I did not do any more work on the catwalk on that construction job.” On cross-examination, he testified, “I suggested that they put a plank over it for safety precautions. I don’t believe I recall whether it was Mr. Brown or I who said that it ought to be covered as a safety precaution. There were men other than ironworkers working on the building.”

Swift’s employee Brown testified that in the conversation on September 12, 1956, described by Feltman, he talked only with Paul Blizzard, the job superintendent, and “Mr. Feltman was standing there. I had no conversation with him at any time. ... I pointed to this void in the grating of the catwalk and asked Mr. Blizzard if he knew that it was missing. He said that he did, that they didn’t have any piece to put down at that point. I said, if I were you I would get it covered up. And he turned to Mr. Feltman and instructed him to cover it up. Feltman went right over as if to do it. I don’t know whether he did it or not. I did not tell Mr. Blizzard that I would undertake to have someone else cover the void in the catwalk. Swift & Company had no employees other than I on the premises. I have no knowledge as to who actually completed the catwalk, or as to who finally installed the metal. I didn’t personally see it done.”

On October 15, 1956, he was informed that a man had fallen, and he called for an ambulance and went to the site of the occurrence and found plaintiff near the floor of the building. He looked at the catwalk and “saw a void in it. Later in the day I assume it was covered with some other material.” He “never saw that opening uncovered after I had this conversation with Mr. Blizzard before he left the premises the first time.”

Feltman also testified that about the first week of October, 1956, he returned and asked if the piece of catwalk had come in yet and was advised that it had not. He said that Brown told him that he would have another contractor install it when it arrived. Brown denied this.

James Micrander, an ironworker employed by Kayo Anderson, the machinery installer, went to work about October 4, 1956. From then until the occurrence, he and his coworkers used the instant catwalk several times a day. He was on it the day before, and the gap in the catwalk was covered then. On one occasion, he saw the planks removed and carpenters taking lumber up through the opening. The carpenters were employed by Samford.

Bob White, also employed by Anderson, saw planking over the gap, but it was not there continuously — “I saw that hole open occasions before this.” He saw a lot of material being passed up when the hole was uncovered.

Marion Anderson, president of Kayo Anderson, said that in the course of his company’s work, the catwalk in question, with the plank on it, was used as often as ten times a day.

Initially, Swift contends that it was not guilty of any negligence toward plaintiff because “it had no possession or control over the premises at the time of the accident, the same being in independent contractors which were constructing the plant,” and that “Swift’s only connection with plaintiff’s accident was the fact that it had a representative on the job to see that the contracts were complied with,” and “the erection was performed by independent contractors to which possession and control of the premises had been turned over and it had not yet been resumed by Swift at the time of the accident. Nevertheless, the trial court held, at the conclusion of all the evidence, that Swift was in control as a matter of law.”

Swift argues that Samford and Mississippi Valley were plainly independent contractors under the law of Missouri (Williamson v. Southwestern Bell Tel. Co. (Mo), 265 SW2d 354, 358), for whose negligent acts Swift is not liable, and “the employer of an independent contractor does not become liable as a principal because he engages an architect to supervise the work and see that it is done according to the construction contract. . . . Ordinarily the owner of premises is not required to inspect the work of an independent contractor to determine whether the work is being done in a way that will provide a safe place for the contractor’s employees to work.” Martin v. First Nat. of Independence Co. (Mo), 372 SW2d 919.

As to Brown’s presence on the job, Swift argues, “No case in Missouri, or anywhere else for that matter, holds that a limited power of intervention in the case of emergencies and the mere presence of an employee to see that contracts are properly performed precludes an independent contractor relationship.” Citations include Boulch v. John B. Gutmann Const. Co., Inc. (Mo App), 366 SW2d 21, 29, where the court said:

“The admission by Harder [employee of subcontractor] that the foreman of the Gutmann Company [general contractor] was present at all times to check whether the work done by him complied with the specifications on the job was no more than that of the ordinary general contractor in seeing that the subcontractor performed his work in the best workmanlike manner according to the plans and specifications.”

Swift further contends that “the uncontradicted fact is that at the time of plaintiff’s accident Swift had not resumed possession and control of the premises. At that time it was in no more possession and control than it was when the contracts were let and Samford and the other contractors put into possession. The building was only partially completed and Swift’s status regarding possession and control was unchanged. . . .” Cited is 38 Am Jur 753:

“However, the liability of an owner or occupant of real estate in reference to injuries caused by a dangerous or defective condition of the premises depends in general upon his having control of the property. In fact, such liability depends upon control, rather than ownership, of the premises.”

Other citations are offered to show that “the Missouri cases make it clear that control of the premises at the time of the accident is an indispensable requisite to liability to third persons for the condition thereof.”

In sum, Swift argues that “the owner is not liable to an employee of a contractor for injuries suffered on account of a dangerous condition created by a subcontractor until such time as he has resumed possession and control of the premises,” and that plaintiff has failed to make proof that “Swift negligently ‘controlled its premises’ so as to cause injuries to the plaintiff.”

As to Swift’s contention of “no possession or control over the premises,” plaintiff concedes that “as a general rule, the owner of premises is not liable for injuries caused by the negligence of an independent contractor over whom the owner exercises no control, and also that the State of Missouri, whose laws govern as the situs of the occurrence, follows the general rule in an appropriate case.”

Plaintiff contends that the “defense of independent contractor” rule does not apply here and argues, “the undisputed facts in evidence, however, are inconsistent with the theory that Brown was looking only to the results of the work, and also show that Swift not only retained the right to supervise and control the work, but that it exercised such right through its employee, Brown. Under the circumstances, the Missouri decisions make it clear that Swift cannot avoid liability to plaintiff.”

Plaintiff’s authorities on this point include Klaber v. Fidelity Bldg. Co. (Mo App) 19 SW2d 758, where it is said (p 762):

“Of course it is well settled that one employing an independent contractor may become liable for injury to a servant by interfering and assuming control.”

Also Lawhon v. St. Joseph Veterinary Laboratories (Mo), 252 SW 44, where the Missouri Supreme Court reversed a verdict and judgment for a defendant owner and said (P 48):

“This evidence was sufficient to warrant the inference, not only that there was a contract of employment, but that the defendant had therein reserved the right to supervise and direct the manner of executing the work in detail.”

In Stiebert v. May Dept. Stores Co. (Mo), 218 SW2d 113, the architect was a defendant owner-employer, and the court said (p 116):

“The crews of both employers were working together in a comparatively limited space under the general supervision of the store architect, and there can be no doubt that he had general control of the work.”

In Stanley v. Louisiana Pure Ice & Supply Co. (Mo App), 279 SW 157, it is said (p 160):

“In arriving at this conclusion, we have in mind the accepted rule that supervision of work may be retained without interfering with the independent action or liability of contractors who have engaged to perform it or subdivision of it.”

In Larson v. Metropolitan St. Ry. Co. (Mo), 19 SW 416, the defendant’s chief engineer occasionally visited the work and his assistant was constantly at the site. There the court said (pp 417, 418):

“The work was done precisely as ordered. Thus it was the exercise of the discretion or judgment vested in the supervising authority which caused the catastrophe; and for that exercise of judgment defendant must respond.”

After examining this record in the light of Swift’s assertion that Samford was the “general contractor,” and that Swift “had no possession or control over the premises” at the time of the occurrence, we conclude the evidence does not support this contention. Swift made a number of prime or direct contracts with different contractors for various phases of the construction of its “plant food manufacturing plant,” such as the pile driving, the “construction and completion” of the building, the “structural and miscellaneous steel work, walkways and grating,” and the machinery installation.

The contracts with Samford and Mississippi Valley both provided that the work to be executed was to be “to the satisfaction of, and under the supervision and in accordance with the specifications and drawings prepared by E. A. Schiewe, the architect,” a full-time employee of Swift. Brown, another full-time employee of Swift, was on the project daily for approximately a year, and it was his duty to see that the separate contractors complied with the terms of the contracts.

Brown had conversations with Beasley’s foreman regarding “features” of the work. It is undisputed that only Brown and Beasley’s men discussed the gap in the catwalk, and that Brown either suggested or approved the use of a plank to bridge the gap through which plaintiff fell. The evidence also shows that the plank was frequently walked on by workmen and removed from time to time to permit material to be hoisted to the roof through the gap. It is a reasonable inference that Brown, being on the jobsite daily, was aware of the practice of removing the plank for material hoisting. It was “the exercise of the discretion or judgment” of Brown that resulted in the “catwalk gap” being bridged by a plank, and thus becoming a proximate cause of plaintiff’s injuries. (Larson v. Metropolitan St. Ry. Co. (Mo), 19 SW 416.) This conclusion is also supported by the foregoing Missouri authorities. It follows, therefore, that the trial court was correct in ruling that Swift could not rely on its independent contractor defense and, also, “as a matter of law that the owner had control.”

Defendant Swift further contends that “even if Swift owed plaintiff the duty of care owed a business invitee, there is no evidence that Swift, through Brown, knew or should have known, that the catwalk was in a dangerous condition.” We find no merit to this contention because, as mentioned above, Brown was on the job daily, participated in the temporary measures made to bridge the gap, and also was checking the quality of the materials delivered. Brown must have been aware of the intended use of materials, and that roofing materials were being hoisted into place through the “catwalk gap.” This required removal of the plank, which was being walked on daily by various workmen. Brown testified he never saw the plank missing, but all the workmen who testified said it was a frequent occurrence, and Brown did admit that he saw the gap uncovered after plaintiff fell.

Swift further contends that “even if Swift owed plaintiff the duty of care owed a business invitee, it owed him no duty to warn him of the obvious gap in the catwalk.” Swift’s authorities cited in support of this point include Stafford v. Fred Wolferman, Inc. (Mo), 307 SW2d 468, where the court said (p 475):

“But the inviter is not liable for failing to warn of a danger known to it and unknown to the invitee if the danger is so apparent that it would or should have been known to the invitee.”

and Harbourn v. Katz Drug Co. (Mo), 318 SW2d 226, 229:

“In the application of this rule it has been held that ‘The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.’ ... It follows that when the condition contended to constitute an unreasonable risk is obvious to one in the exercise of ordinary care, or is actually known to the invitee, there is no duty on the owner or occupier to warn him. . . . Therefore an owner or occupier is not liable for injuries resulting from open and obvious conditions which are or should be as well known to the invitee as to the owner or occupier.”

On this point, plaintiff contends that “it is axiomatic that one having work done on his premises by one who is an independent contractor, and who retains control of the premises during the progress of the work, is under an obligation to keep [the premises] in a reasonably safe condition for the servants of the contractor. See: 57 CJS, Master and Servant, sec 603, p 374.” Plaintiff also cites Schneider v. Southwestern Bell Tel. Co. (Mo App), 354 SW2d 315, 318:

“The law is well settled that defendant, as owner and occupant of its building, has the duty to exercise ordinary care and diligence to have its building in a reasonably safe condition for the use of an employee of an independent contractor who occupies the position of a business invitee. Where such employee is engaged in working on defendant’s premises, the owner has a nondelegable duty to warn him of any condition unknown to him that was not safe or could not be made safe. . . . [p 820] It is immaterial to the issues whether the wire was actually placed there by an employee of an independent contractor, as shown by the evidence, or by an employee of defendant. A finding that defendant permitted it is equivalent to a finding that defendant knew it. . . .
“The defendant’s duty to furnish a safe place for plaintiff to work, being nondelegable, applies equally whether the dangerous consideration be caused by a fellow servant or an independent contractor, since the law will not permit defendant to shift this responsibility to anyone else.”

As to this contention, we believe the evidence fairly shows that Beasley’s work was completed and accepted by Swift, through Brown, on September 12, 1956. Brown and Beasley’s employees made a final inspection called “sealing the job,” and Brown suggested or consented to the method of bridging the “catwalk gap” in a manner that was equivalent to a waiver of full performance or the acceptance of a defective performance, i. e., the placing of the plank across the gap and inferentially accepting the responsibility for its continuance in place. It is stated in 17A CJS, Contracts, § 514(2):

“An acceptance of the work or structure, as in compliance with the contract, will ordinarily constitute a waiver of a full performance or defective performance of a building and construction contract, where the defects or imperfections are of such a nature that owner is, or should be, aware of them, and such acceptance may be expressed or implied from the conduct of the owner.”

In Casey v. Hoover (Mo App), 89 SW 330, it is said (p 334):

“When he [proprietor] accepts work that is in a dangerous condition, the immediate duty devolves upon him to make it safe, and if he fails to perform this duty, and a third person is injured, it is his negligence that is the proximate cause of the injury. His liability may be incurred either from his substitution for the contractor or from his neglect to repair.”

The evidence supports plaintiff’s assertion that “Swift accepted Beasley’s work and excused it from any further performance, even though Swift knew a section of the flooring had not been installed in the catwalk. Under the circumstances and the general rule, liability for the unsafe condition shifted to Swift, notwithstanding the work was that of an independent contractor.”

The situation presented comes within the statement made in Bartling v. Firestone Tire & Rubber Co. (Mo App), 275 SW2d 618, where the court said (p 624):

“In our opinion the evidence was sufficient to support a finding that reasonably prudent persons, in the position of defendants, would have realized that the condition in question involved an unreasonable risk to business visitors, and would have anticipated that such visitors might not discover the condition or realize the risk involved therein, and in the exercise of reasonable care would have made the condition reasonably safe or given an adequate warning to enable them to avoid harm. The question whether defendants were negligent in maintaining the pass door, without giving adequate warning that it did not extend to the level of the floor, was one for the jury to decide. The verdict of the jury was necessarily predicated upon a finding that defendants were negligent and that plaintiff was not contributorily negligent.”

Next considered is defendant’s contention that “plaintiff was guilty of contributory negligence as a matter of law.” Swift argues that there was nothing in front of plaintiff to obstruct his vision while he was walking toward the “catwalk gap,” — “Plaintiff said there were shadows back over his head made by the purlins or steel beams. Shadows, however, do not make visible things invisible and plaintiff does not know whether there was a shadow over this 6 feet by 3 feet gap because he never saw it. The building was open to the sky and there was as much light as daylight could throw upon any open place.”

. Swift asserts “Plainly, plaintiff was not exercising ordinary care for his own safety as he was walking upon the catwalk. Either he was not looking where he was going, or, if he was, he was not looking with the degree of care required by law.

“ ‘The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger. A person is required to make reasonable use of his faculties of sight, hearing, and intelligence to discover dangers and conditions of danger to which he is or might become exposed, and one injured as a result of his failure to use his faculties to observe and discover a danger which would have been observed and discovered by an ordinarily prudent person is guilty of contributory negligence.’ Chisenall v. Thompson, 363 Mo-538, 252 SW2d 335, 337.

“A failure on the part of plaintiff, who owes a duty to look, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law. . . . ‘Where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed.’ Smith v. Kansas City Public Service Co., 328 Mo 979, 43 SW2d 548, 553.”

Swift further argues plaintiff had no right to assume the catwalk or any other part of the building was finished and in safe condition, and that an invitee on the premises undergoing construction takes the risk of using the premises in the condition in which he finds them. Also, “had the plaintiff been looking where he was going he could not have avoided seeing this huge gap in the walk.” It was aptly said by the court in Bonanomi v. Purcell, 287 Mo 436, 230 SW 120,124;

“The freaks of accident confound all foresight, and we guard against them by those conventional methods generally recognized as preventives, the most universal of which is to ‘look where we step.’ ”

As to the special finding of the jury that plaintiff was not guilty of contributory negligence, Swift asserts, “This finding was not based upon any evidence but merely upon sympathy for plaintiff’s injuries,” and the finding is no more binding than the general verdict. Illinois Steel Co. v. Mann, 197 Ill 186,189, 64 NE 328 (1902).

Plaintiff argues that the issue of his contributory negligence was one of fact for the jury, and “Under Missouri law, like that of Illinois, the determination of whether a plaintiff is guilty of contributory negligence is one of fact, unless reasonable minds could not differ about the conclusion that plaintiff failed to act as an ordinarily careful and prudent person would have acted under the circumstances. Or, to state the proposition another way, where reasonable minds might differ and different conclusions might be drawn from the evidence, questions of negligence and contributory negligence are for the jury.” Fortner v. St. Louis Public Service Co. (Mo), 244 SW2d 10, and others.

Plaintiff asserts there was uncontradicted evidence that the sun was shining and that girders and sections of the roof, which were being installed, cast shadows on the catwalk, and that plaintiff’s testimony that the grated flooring of the catwalk appeared solid from an angle was in no way contradicted. Plaintiff also asserts that Osborn was uncontradicted in his testimony that he had not seen the gap in the catwalk, even though he was standing 6 to 7 feet above the surface of the catwalk and within 10 to 15 feet from the gap. Plaintiff’s authorities include Elgin v. Kroger Grocery & Baking Co. (Mo), 206 SW2d 501, 507:

“ ‘As a general rule, a man is not required to look for danger when he has no cause to anticipate danger, or when ... it be caused by the negligence of another.’ . . . The issue of respondent’s contributory negligence was for the jury.”

We are not persuaded that this case calls for the application of the “plainly visible” doctrine relied on by Swift. Plaintiff had been working on the jobsite for about two weeks and had seen at least three catwalks “used by the men in going to and coming from their work whenever they were available to the men.” He had occasion to use another catwalk but had “never been on this particular catwalk before.” It is a fair inference that the use of the catwalks by other men that he had observed was without incident and sufficient for him to reasonably believe that the catwalk in question was fit for his use. We believe the statement made in Swenson v. City of Rockford, 9 Ill2d 122, 136 NE2d 777 (1956), at p 128, is applicable here:

“Though she was not looking down at the precise moment of the incident, she was not necessarily required, as a matter of law, to be looking down at the exact moment, although that circumstance might properly be considered by the jury, with all the relevant circumstances in evidence, in reaching its determination as to due care.”

We hold that the issue of plaintiff’s contributory negligence was properly submitted to the jury.

Finally, we consider Swift’s contention that the court committed reversible error in the giving and refusing of instructions. Swift asserts the court gave 16 instructions on behalf of the plaintiff, 6 on behalf of defendant Beasley, and 5 on behalf of defendant Swift, and not a single instruction given on behalf of Swift related to any issue in the case.

Swift argues that “figuratively and literally, Swift was ‘instructed out of court.’ This was not only due to the fact that the court refused every instruction of Swift relating to its theory of defense, but gave such instructions as one on behalf of plaintiff that Swift had a duty to use ‘ordinary care to furnish plaintiff a safe place to work’ without requiring a further finding that Swift was in control, and ignoring the fact this was a building under construction, and one on behalf of Beasley that if its work was accepted by Swift responsibility for any defects ‘rests on the owner’ without regard to whether Swift was in control or not. In the state of the instructions it is difficult to see how the jury could have failed to return a verdict against Swift and in favor of Beasley.”

We have examined the instructions given and refused. We have also examined that part of the transcript which includes the conference between the trial court and counsel to settle the instructions. The conference was lengthy. An extended discussion was engaged in about any questioned instruction. We find the jury was adequately instructed on the issues presented, and the evidence offered by both sides. The instructions were within the guidelines accepted by this court in determining defendant’s other contentions. As we find no reversible error in the giving of the instructions, a detailed discussion of the questioned instructions would unnecessarily lengthen this opinion.

For the reasons given, and as we find no reversible error in this record, the judgment in favor of plaintiff and against Swift is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Philip M. Doyle, Defendant-Appellant.
    Gen. No. 50,308.
    First District, First Division.
    October 17, 1966.
    Rehearing denied December 1, 1966.

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

delivered the opinion of the court.

The defendant, Philip M. Doyle, was indicted and tried for the offenses of attempted murder and aggravated battery. After a jury trial he was convicted of attempted murder and sentenced to serve 15 to 20 years in the State Penitentiary.

The defendant contends: (1) that the State failed to prove that the defendant intended to kill without justification, a necessary element of the charge of attempt to murder; (2) that the jury was not properly instructed; (3) that the defendant was not permitted to display his injured finger to the jury to his prejudice; (4) that testimony of details of the victim’s injury and treatment of his wounds were inflammatory and prejudiced the defendant; (5) that evidence of other crimes denied the defendant a fair trial; and (6) the indictment was fatally defective in that it did not specify the time and place of the alleged offenses.

On May 9, 1964, at about two o’clock in the morning three Chicago police officers dressed in plainclothes drove up an alley in a residential neighborhood of Chicago in an unmarked automobile. They stopped three men walking in the alley and announced they were police officers. Officer John O’Connor testified he heard one of the men say, “It’s the police. Let’s go,” and all three men ran in different directions. Officers O’Connor and Quick apprehended one man who was left in O’Connor’s custody. Officer William Quick then pursued another man with a flashlight in one hand and a gun in the other. After jumping an abutment he found himself three feet from the defendant and observed that he had a sawed-off shotgun in his right hand. He testified that he dropped his flashlight, started to reach for the shotgun and was shot in the stomach by the defendant. He said he then fired three shots at the defendant. The defendant was shot in the finger.

The defendant did not testify. A physican called as a witness by defendant testified that the X rays of the defendant’s right hand showed that his right index finger had been fractured and the lower joint completely destroyed by a bullet.

The defendant first contends that the State failed to prove that the defendant intended to kill the police officer. Counsel for defendant argues that the bullet fired by the' officer struck the defendant’s trigger finger and he may-have fired back in self-defense and therefore it cannot be inferred that, under these circumstances, he intended to kill the officer without lawful jurisdiction.

The Criminal Code provides that the intent to commit a specific offense coupled with the doing of “any act which constitutes a substantial step toward the commission of that offense” shall be sufficient proof of the crime of attempt. Ill Rev Stats 1965, ch 38, § 8-4 (a). From the uncontradicted evidence the jury could properly find that the defendant intended to shoot and kill the officer and that it was only by an act of providence that the officer lived and the defendant was not charged with an act of murder.

It is next contended that the court erred in refusing to give instructions tendered by the defendant to show that if the jury believed the defendant did not intend to kill he would not be guilty or he would be guilty only of battery or aggravated battery. It is also charged that the court refused to give instructions on intent and burden of proof. The record shows that the jury was instructed in the language of the statutes defining intent and the offense of aggravated battery. We have considered the above objections and other refused instructions tendered by the defendant and find from the record that there was no error in the refusal of tendered instructions and that the issues were adequately covered by the given instructions.

The defendant complains that the failure of the court to allow him to display his injured hand to the jury was prejudicial. He argues that “The main issue at the trial was whether the defendant’s gun had been set off by a bullet from the officer’s gun, or whether defendant had pulled the trigger voluntarily, in self-defense or otherwise.” As we have mentioned the defendant did not testify. The only witness offered by him was Dr. Fritz Rothbart, a radiologist, who testified on direct examination that the X ray which had been taken two days after the shooting showed that the defendant’s right index finger was injured at the proximate and middle phalanx by a recent bullet shot. He was asked whether he could tell where the bullet entered the finger by looking at the X ray and he said he could not answer that question. On cross-examination he stated he could not tell the angle at which the bullet struck the finger because he did not see “the defect of the soft tissue that covers the bone, which means that would be absent, that would have been pulled out by the bullet.”

The defendant cannot offer to have his finger examined in court by a radiologist without laying a proper foundation for such testimony. We also do not feel that the ruling by the court, during discussion in chambers, that the defendant was to remove his injured hand from the sight of the jury by keeping it in his lap affected the verdict.

It is further urged that the State was erroneously permitted over objection to introduce gory, inflammatory details of wounds that did not go to the question of innocence or guilt. We do not agree. The defendant was being tried on charges of aggravated battery and of inflicting great bodily harm. In People v. Nickolopoulos, 25 Ill2d 451, 185 NE2d 209, the case cited by the defense, the defendant and the victim were intoxicated and the victim was shot during an argument about a restaurant bill. The defendant in that case was only charged with the single offense of assault with intent to commit murder. In the case at bar the defendant was also charged with the offense of aggravated battery. The Criminal Code provides that aggravated battery is committed by a person who “intentionally or knowingly causes great bodily hwrm, or permanent disability or disfigurement.” Ill Rev Stats 1965, ch 38, § 12-4(a). (Emphasis added.) The nature or seriousness of the injury inflicted was at issue and the trial court had no means of knowing upon which charge the jury would act. Whether such evidence was competent must be left to the discretion of the trial judge. We cannot say he abused his discretion.

It is also contended that a studied effort was made by the State to improperly introduce evidence of other unrelated crimes to convince the jury to convict the defendant. On direct examination of a police officer reference was made concerning A1 Broome who may have been one of the three men in the alley and upon objection the matter was heard in chambers. The prosecutor there stated out of the presence of the jury that the witness would testify that they found a silk stocking which had two holes and a knot around its end in possession of Broome to show a motive for burglary. The State informed the court that it would connect this evidence with the defendant and on that representation was permitted to show by the witness that a mask which was marked as an exhibit for identification was found in Broome’s pocket some hours after the shooting incident. The witness was also asked whether an exhibit for identification was his written report. He answered in the affirmative and on cross-examination the defendant’s counsel brought out the fact that the report showed that James Trabillan and Broome were also arrested. On objection at the close of the State’s case the stocking mask exhibit was not permitted in evidence. ■

Another officer appearing as a witness for the State was asked whether he had occasion to be in Judge Cohen’s courtroom when the defendant was present. On objection, the prosecutor informed the court that he intended to ask the witness whether a stipulation was entered into at the time that the defendant’s age was 29, because they could not get a stipulation from the defendant’s counsel. A motion for a mistrial was made by the defendant on the theory that the State improperly brought out that the defendant was before another judge which indicated another offense. The court denied this motion stating that “Nothing has been brought out here from this witness. Nothing has been said. You haven’t been prejudiced in any way.” The court then sustained the objection to the questions propounded by the prosecutor and directed the jurors to disregard the inquiry.

We are satisfied the prosecutor improvidently committed error by offering evidence in regard to the mask which he did not connect up with the defendant and in referring to an appearance by the defendant in another courtroom in an attempt to prove up the defendant’s age. However, we do not feel that the defendant was prejudiced thereby. The purpose of a review in a criminal case is not to determine whether the record is perfect, but to determine whether the defendant had a fair trial under the law and whether his conviction is based upon evidence establishing his guilt beyond all reasonable doubt. People v. Naujokas, 25 Ill2d 32, 182 NE2d 700. The evidence here so clearly indicates defendant’s guilt that this court cannot conceive that any other verdict would be reached without these errors. When errors complained of could not reasonably have affected the result the judgment should be affirmed. People v. Cardinelli, 297 Ill 116,130 NE 355.

It was also contended that the indictment was fatally defective in that it failed to specify the time and place of the offense. This issue was considered in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, and a similar indictment was held sufficient.

The judgment of the Criminal Court is therefore affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    Milford C. Berner and Chicago Title & Trust Company, as Trustee Under Trust No. 40669, Plaintiffs-Appellants, v. Village of Northbrook, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,552. (Abstract of Decision.)
    First District, First Division.
    October 17, 1966.
    Rehearing denied December 5, 1966.
    Maurice J. Nathanson, of Chicago (Marvin J. Glink, of counsel), for appellants; Frederic O. Floberg, of Chicago (H. Arvid Johnson, Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of counsel), for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.