author: Miss JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO PEREZ, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1846
    Opinion filed September 23, 1981.

      James N. Karahalios, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Kathleen Warnick, and Edward M. Rubin, Assistant State’s Attorneys, of counsel), for the People.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

A jury in the circuit court of Cook County found the defendant, Mario Perez, guilty of the murder of Oscar Moreno, a/k/a Primitino Moreno. The trial court sentenced the defendant to serve 35 years in the penitentiary. On appeal, the defendant contends that (1) he was denied a speedy trial; (2) he was not proved guilty of murder beyond a reasonable doubt; (3) the jury was improperly instructed; and (4) the trial court erred in failing to strike all arrests not resulting in convictions from the presentence investigation report.

Ralph Villar testified that on April 13,1978, he was working at Beto’s American Wine & Liquors (Beto’s) in Chicago, Illinois. At approximately 7:50 p.m., Oscar Moreno entered the tavern alone and sat at the end of the bar.

Ten to fifteen minutes later, the defendant entered the tavern and walked to the area where Moreno was sitting. Villar observed Moreno and the defendant talking. A few minutes later, Villar saw the defendant leave the tavern. He then noticed that Moreno was standing and holding his back. Villar observed blood dripping from Moreno’s back. An ambulance was called, and Moreno was taken to the University of Illinois hospital.

Officer Joseph Flashing of the Chicago Police Department testified that when he arrived at Beto’s, he observed attendants placing the semiconscious Moreno into an ambulance. After interviewing witnesses, Flashing searched the premises but was unable to discover any weapon.

Dr. Charles Stollar, the resident on call when Moreno was brought into the emergency room of the University of Illinois hospital, testified that Moreno had a single internal injury, a stab wound in the back. X rays revealed that a large collection of fluid was present deep in Moreno’s abdomen. Moreno’s blood pressure indicated that he had lost a significant amount of blood. It was decided that surgery was necessary. Dr. Stollar, assisted by three other surgeons, first opened Moreno’s abdomen with a midline incision. He made two additional incisions in the abdomen for drains. Dr. Stollar testified that he observed 500 cc’s of blood within Moreno’s abdominal cavity. This condition was highly abnormal. He discovered a large longitudinal laceration of the vena cava, the major vein in the lower portion of the body. This laceration was between 2 and 3 inches in length. In addition, the main vein in the right knee was lacerated as well as the first portion of the small intestine and several small veins. The surgery procedure lasted approximately four and a half hours. Following surgery, Moreno was in poor condition. The doctors were unable to maintain his blood pressure, and Moreno died several hours later. Dr. Stollar stated that in his opinion, the stab wound was the cause of death.

Dr. Stollar stated that he was in training at the time that he performed the surgical procedures on Moreno. He admitted that an injury to the vena cava could occur in the course of surgery. In response to the question of whether the laceration of Moreno’s vena cava occurred during surgery, Dr. Stollar responded “Absolutely not.”

Dr. Eupil Choi, a pathologist at the Cook County Medical Examiner’s office, testified that he performed an autopsy on Moreno. When Dr. Choi examined the victim’s body, he observed several wounds. In his opinion, the cause of Moreno’s death was a stab wound to the abdomen. Dr. Choi indicated that the wound by the backbone was surgically induced. Dr. Choi further stated that it is difficult to distinguish a wound produced by a surgical instrument from a wound produced by a weapon.

Investigator James Cornelison of the Chicago Police Department testified that on April 17, 1978, an arrest warrant was issued for the defendant and that on August 23,1978, he was notified that the defendant was in custody in Fresno, California. The defendant waived extradition and was brought back to Chicago on September 1, 1978.

Officer Gary Snow of the Fresno, California, Police Department testified that he interviewed the defendant concerning the arrest warrant. Snow first advised the defendant of his constitutional rights. Then, the defendant gave Officer Snow the following statement concerning the stabbing of Moreno.

On April 13,1978, the defendant and his cousin were drinking beer in a tavern after work. As the defendant was going to the restroom, he observed Moreno arguing with his cousin. The defendant intervened, Moreno pushed the defendant, and the defendant hit Moreno. Moreno took from his coat a .25-caliber automatic and put it close to the defendant’s side. The defendant left the tavern.

The defendant acquired a steak knife and returned to the tavern because “he wasn’t going to let this guy get away with pulling a gun on him.” When he discovered that Moreno was no longer in the first tavern, the defendant went across the street to a second tavern where he saw Moreno. The defendant told Moreno to come outside because “I am going to give you something.” Moreno stood up, started to turn, and appeared to reach into his coat pocket. At this time, the defendant stabbed Moreno.

Detective Snow testified that he asked the defendant to repeat his statement. The defendant stated that when Moreno stood up, the defendant quickly grabbed him, turned him around, and stabbed him in the back. Although Moreno did not move his hands, the defendant did not know if Moreno would try to reach into his pocket.

Following deliberations, the jury returned a verdict of guilty of murder, not guilty of voluntary manslaughter, and not guilty of armed violence.

I

The defendant first argues that he was denied his statutory right to a speedy trial. Pursuant to the statute (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5), the State must bring a defendant’s case to trial within 120 days of the date he was taken into custody. The defendant contends that his trial did not begin until the 121st day.

We note that this issue is raised by the defendant for the first time on appeal. The defendant neither applied for discharge prior to his conviction nor raised this issue in his post-trial motion. Thus, he has waived his right to such a discharge. People v. Solheim (1977), 54 Ill. App. 3d 379, 369 N.E.2d 308.

However, assuming that there was no waiver of this issue, we believe that the State did comply with the statute. In reaching the conclusion that his trial commenced on the 121st day of his term, the defendant assumed that the 120-day period commenced running on August 23,1978, the day he was taken into custody in California. Such an assumption was incorrect. The 120-day period began on September 1, 1978, when the defendant was extradited to Illinois. (People v. Hayes (1962), 23 Ill. 2d 527, 179 N.E.2d 660; People v. Gilliand (1971), 131 Ill. App. 2d 635, 267 N.E.2d 140.) Thus, there was no violation of the defendant’s statutory right to a speedy trial.

II

The defendant next argues that the State failed to prove him guilty of murder beyond a reasonable doubt. He first contends that the State did not present any evidence to refute his claim of self-defense. His claim is based on the statement to Detective Snow that he stabbed Moreno after he saw Moreno reach into his pocket. However, in the defendant’s second statement, he said that he stabbed Moreno in the back as soon as Moreno stood up despite the fact that Moreno had not moved his hands.

A jury is not required to accept as true the defendant’s testimony concerning self-defense. Rather, in weighing the evidence, the jury must consider the probability or improbability of the testimony, the circumstances surrounding the killing, and the testimony of other witnesses. People v. Holtz (1974), 19 Ill. App. 3d 781, 313 N.E.2d 234.

The circumstances surrounding the instant stabbing were that the defendant and Moreno were involved in an incident at a tavern. The defendant left the tavern, acquired a knife, and returned in search of Moreno. The defendant did not intend “to let this guy get away with pulling a gun on him.” When the defendant located Moreno, he stabbed him in the back. The defendant gave conflicting statements concerning whether Moreno appeared to reach into his pocket for a gun. However, the police were unable to locate any weapon in Moreno’s possession or on the premises. After the stabbing, the defendant left the tavern and fled the State.

The issue of self-defense is a question to be resolved by the trier of fact. This factual finding will not be disturbed on review unless it is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Chapman (1977), 49 Ill. App. 3d 553, 364 N.E.2d 577.

After considering the defendant’s conflicting statements and the circumstances surrounding the stabbing, the jury rejected the defendant’s claim of self-defense. We cannot say that such a conclusion was so unreasonable as to raise a reasonable doubt of guilt.

The defendant also contends that the State failed to prove beyond a reasonable doubt that Moreno died as a result of the stabbing. We disagree.

It is undisputed that the defendant stabbed Moreno in the back with a steak knife. This stabbing caused severe internal bleeding, and Moreno’s X rays confirmed the existence of excessive fluid in his abdomen. His blood pressure indicated the loss of a significant amount of blood. When Dr. Stollar opened Moreno’s abdominal cavity, he observed 500 cc’s of blood therein. Dr. Stollar testified that the cause of Moreno’s death was the laceration of the vena cava which resulted in a massive loss of blood.

The defendant bases his reasonable doubt argument on Dr. Choi’s testimony that the defendant was stabbed in the abdomen. Because the incision in the abdomen was made by Dr. Stollar, the defendant concludes that the vena cava was cut during surgery.

Although Dr. Choi did state that Moreno was stabbed in the abdomen, we cannot say that this testimony alone raises a reasonable doubt concerning the cause of death. We believe that it was reasonable for the jury to conclude that Dr. Choi erred when he identified the abdominal incision as a stab wound. When Dr. Choi examined Moreno’s body, he saw several incisions thereon. Dr. Choi explained that it is difficult to distinguish a wound produced by a surgical instrument from a wound produced by a weapon. This fact is evident from Dr. Choi’s testimony that the wound in the back was surgically induced. The defendant himself does not dispute the fact that his knife was responsible for the wound in the back.

The defendant also argues that the jury should have returned a verdict of voluntary manslaughter rather than murder. He contends that there was no evidence to refute his argument that he had a belief, albeit unreasonable, that his actions were justified because Moreno appeared to reach into his pocket for his gun.

As we have previously discussed, the defendant related two versions of the incident. It was within the jury’s discretion to accept as true the defendant’s statement that although Moreno made no aggressive move, he stabbed Moreno in the back. Thus, the jury’s finding that Perez was guilty of murder will not be disturbed.

Ill

The defendant also argues that the jury was improperly instructed. He first contends that the jury was erroneously instructed as to the difference between the offenses of murder and voluntary manslaughter. The jury was instructed that in order to sustain the charge of murder, the State must prove beyond a reasonable doubt:

“First: That the defendant performed the acts which caused the death of Primitino Moreno;
Second: That when the defendant did so, he intended to kill or do great bodily harm to Primitino Moreno, or he knew that his acts would cause death or great bodily harm to Primitino Moreno, and Third: That the defendant was not justified in using the force which he used.” IPI Criminal Nos. 7.02 and 25.05.

The jury was also instructed that in order to sustain the charge of voluntary manslaughter, the State must prove beyond a reasonable doubt:

“First: That the defendant intentionally or knowingly performed the acts which caused the death of Primitino Moreno; and Second: That when the defendant did so he believed that circumstances existed which would have justified killing Primitino Moreno; and
Third: That the defendant’s belief that such circumstances existed was unreasonable.
Fourth: That the defendant was not justified in using the force which he used.” IPI Criminal Nos. 7.06 and 25.05.

The defendant alleges that according to the Illinois Pattern Jury Instructions for criminal cases, the following element should have been included in the murder instruction:

“* * * Fourth: That the defendant did not believe that circumstances existed which justified the use of the force which he used.” (IPI Criminal Nos. 7.02 and 27.01.)

Instruction 27.01 is a sample set of instructions to be used where the evidence warrants instructions concerning murder, voluntary manslaughter and self-defense.

Although the State’s instruction on murder did not contain the fourth element, the defendant did not object to it at trial. Failure to either object or tender a particular instruction will preclude a defendant from raising objections on appeal to given instructions or lack of instruction. People v. Smith (1978), 71 Ill. 2d 95, 374 N.E.2d 472.

The defendant relies on People v. Stutter (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593, and argues that he did not waive this error because the omission of the fourth proposition from the murder instruction was plain error. However, the facts in Stuller are distinguishable from the facts in the instant case. In Stuller, the jury found the defendant guilty of both murder and voluntary manslaughter. The trial court vacated the verdict of guilty of voluntary manslaughter and entered judgment on the verdict of murder. On review, the appellate court reversed the murder conviction and remanded the cause for entry of a finding of guilty of voluntary manslaughter. The appellate court pointed out that because the jury returned a verdict of guilty of voluntary manslaughter, it necessarily found that the defendant believed, albeit unreasonably, that circumstances existed which justified his actions. The court noted that such a finding was compelled by substantially uncontroverted evidence. The court reasoned that because of the omission of the fourth proposition of instruction No. 27.01, the verdict of guilty of murder would also have been in full accord with the court’s instruction. The court held that in light of the jury’s finding that the defendant believed that circumstances existed which justified the killing and the fact that ample evidence supported this finding, the defective murder instruction gave rise to plain error affecting his substantial rights.

In the instant case the jury returned a not-guilty verdict on the voluntary manslaughter charge and a guilty verdict on the murder charge. Obviously, the jury did not believe that the defendant possessed any belief, reasonable or unreasonable, that circumstances existed which would have justified the use of the force which he used. Thus, the omission of the fourth proposition of instruction No. 27.01 did not affect the jury’s deliberation on the issue of murder. Therefore, we cannot say that the omission of the fourth proposition of the murder instruction gave rise to plain error.

The defendant also argues that the trial court should have instructed the jury that the hospital’s negligence may have caused Moreno’s death. However, the defendant did not request such an instruction at trial. The general rule in Illinois as to the question of giving jury instructions is that a party who desires a specific instruction must offer it and request the court to give it. The trial court has no obligation to give instructions not requested by counsel. (People v. Parks (1976), 65 Ill. 2d 132, 357 N.E.2d 487; People v. Loya (1980), 90 Ill. App. 3d 1078, 413 N.E.2d 1361.) Therefore, no party may raise on appeal the failure to give an instruction unless he shall have tendered it at trial. People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.

In criminal cases, however, the waiver rule will not prevent review of substantial defects in jury instructions “if the interests of justice require.” (Ill. Rev. Stat. 1977, ch. 110A, par. 451(c).) In view of our holding in the instant case that the State proved the legal cause of Moreno’s death beyond a reasonáble doubt, we cannot say that the court’s failure to give this instruction constituted a substantial defect. (See People v. Gulliford (1980), 86 Ill. App. 3d 237, 407 N.E.2d 1094.) Therefore, we hold that the defendant waived any error in the trial court’s failure to instruct the jury on the possibility of the existence of an intervening cause by failing to give the desired instruction.

IV

Finally, the defendant contends that the trial court erred in failing to strike all arrests not resulting in convictions from the pre-sentence investigation report. The defendant concludes that the trial court considered these arrests in determining his sentence, which he characterizes as excessive. He cites People v. Kennedy (1978), 66 Ill. App. 3d 35, 383 N.E.2d 255, in which the court held that it was error for the trial court to consider such information in the determination of the sentence. The court further stated:

“We recognize that such information is likely to be presented to the sentencing judge in presentence reports or come to his attention in other ways. Error does not necessarily occur thereby but the judge should not consider this information with reference to the likelihood that the defendant has in fact committed the conduct charged. A good practice would be for the judge to recite into the record that he is not considering the information with reference to the type or severity of sentence imposed.” 66 Ill. App. 3d 35, 40.

We do not believe that the inclusion of the prior arrests in the report prejudiced the defendant in the case at bar since the trial court specifically stated “The Court is only considering, of course, the convictions of the defendant concerning the possible sentence of the Court.” (See also People v. Hammond (1980), 82 Ill. App. 3d 839, 403 N.E.2d 305, cert. denied (1981),_U.S__, 67 L. Ed. 2d 615, 101 S. Ct. 1482.) Therefore, no error was committed in this regard.

We also fail to find any abuse of discretion in the imposition of the sentence and will not disturb the trial court’s determination on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

For the foregoing reasons, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

RIZZI, P. J., and WHITE, J., concur.

       Such was the finding of this court in People v. Pernell (1979), 72 Ill. App. 3d 664, 391 N.E.2d 85, a case cited by the defendant.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    LLOYD ROBERT CURRY, Plaintiff-Appellant, v. LOUIS ALLIS COMPANY, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2326
    Opinion filed September 24, 1981.
    — Rehearingdenied October 29,1981.

      Joseph A. Rosin, of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, and James K. Toohey and Fred W. Mattlin, both of Ross, Hardies, O’Keefe, Babcock & Parsons, both of Chicago (Thomas T. Allen and John E. Frey, of counsel), for appellees.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

This suit is a products liability action brought for injuries suffered when a motor, having been improperly installed, fell off a drop hammer. The suit was brought against the manufacturer, Louis Allis Company, Incorporated (Allis), the seller, Central Motor & Repair Company (Central), and the assembler of the total machine, Chambersburg Engineering Company, Incorporated (Ceco). The trial court concluded Allis and Central were not liable for the injuries and granted their motion for summary judgment.

We affirm.

Allis is the manufacturer of electric motors. Prior to 1965, it manufactured electric motors designed for use on board drop hammers. In 1964, it withdrew from that market and since then has manufactured only general purpose drive motors. The motor involved in the present case was a general purpose drive motor manufactured according to standard, industry-wide specifications established by the National Electrical Manufacturers Association. It was advertised for use in foundries and related industries and was commonly used in hundreds of varied applications such as pumps, machine tools, compressors and refrigeration units. The motor’s cast iron housing was forged according to specifications which call for a tensile strength of 30,000 pounds per square inch (psi).

Central is engaged in the business of rebuilding and repairing electric motors. Incidental thereto, it placed orders for new electric motors for its customers from various motor manufacturers including Allis. It was not an authorized Allis distributor, nor did it regularly sell or distribute Allis products directly. It did sell the motor involved in this case to plaintiff’s employer on or about July 31,1974.

The plaintiff, Curry, was an employee of Cornell Forge Company. Cornell is engaged in the forging business. At the time of the accident it had on its premises numerous hammers in addition to the drop hammer involved in this occurrence. It maintained an inventory of spare hammer parts, motors and mounting assemblies and' purchased standard drive motors from other manufacturers besides Allis. It had experienced motor feet fractures with these motors as well. Cornell performed its own repairs on the hammers, including the installation of replacement drive motors as needed. In addition, it shipped motors to independent contractors which welded motor casing fractures. It never notified Allis or sought its advice if motor frames fractured.

The 2,000 pound board drop hammer involved in the accident was designed, manufactured and sold by Ceco. Its principal components included the hardware for the hammer itself, a drive motor and a shock mounting system by which the drive motor is mounted on top of the hammer. This shock mounting system was developed by Ceco after Allis discontinued manufacture of the specialized motors so that the hammer could be powered by general purpose drive motors.

In 1966 Cornell purchased from Allis and had sent to Ceco a motor for inspection and testing with the 2,000 pound drop hammer. After testing, Ceco approved the use of the motor on the drop hammer conditioned on Cornell’s use of the Ceco-designed shock mounting system. It also required use of its double element coupling. Ceco provided Cornell with detailed instructions and drawings as to the proper method of mounting and coupling the motor to the hammer. However, while several Cornell personnel, including the purchasing agent and plant manager, had these instructions and drawings, they had not been given to anyone in the maintenance department.

On September 5, 1974, the motor then in use was observed to be shaking. The hammer was shut down and the night shift maintenance crew was instructed to install the new Allis motor. Floyd Bradshaw was the lead man on this crew. Not only did he not have any instructions or drawings, but he was not able to find the required shock mounting assembly and double element coupling although in fact Cornell did have some units in stock.

When Bradshaw could not locate a complete shock mounting as-' sembly in the Cornell toolroom, he used the worn parts from the previous assembly, which included only two of the necessary four mushroom-head bolts and only six of the necessary eight neoprene cups. To replace the two missing mushroom-head bolts Bradshaw used two improper, standard hex-head bolts which had a smaller and differently shaped head and a wider threaded shaft than the mushroom bolts included in the Ceco shock mount assembly kit. Although each bolt required two rubber cups for correct installation and proper shock isolation, Bradshaw used only one rubber cup with each hex-head bolt.

Because the standard hex-head bolts were too large to fit through the premachined holes in the feet of the Allis motor, Bradshaw drilled and enlarged the motor mounting holes to accommodate the improper hex-head bolts. He then “snugly” tightened the two hex-head bolts and two partially worn rubber cups without the use of the proper castellated nuts which permit the insertion of a cotter pin to secure the mount. The instructions regarding the motor shock mount stated that the mushroom bolts should be finger tight, then tightened only an additional half turn in order to allow the motor the benefit of the float generated by the shock assembly, thus protecting the motor from the extreme vibrations generated in the Ceco hammer. Because he had not found the series shock mount assembly with the packing instructions, Bradshaw was unaware of the proper assembly procedures, and when he “snugly” tightened the mushroom bolts, he destroyed the “float” effect of the shock mounting system. About six hours after the hammer was put back into service, the motor fell severely injuring plaintiff. An inspection report by Ceco revealed that:

“(d) At approximately 5:30 a.m. — after approximately six hours service — the front two mounts failed by the hex-head bolts pulling through the Body, 285. Apparently, at this point both of the front motor feet broke off. This caused an unstable condition and the rear two motor feet broke causing the motor to tear loose from the coupling and fall upon the Trim Press operator.
(e) Customer has put aside the damaged motor, the four feet, and the motor mounts involved. I inspected the feet and all failures were clean indicating a sudden fracture. The Bodies, 285, of the mounts were deformed at the bore where the hex head pulled through. The Hard Rubber, 323, from the top side seemed to be in good condition.”

Plaintiff’s own expert in his report said that the mounting legs had a tensile strength of 35,000 psi; that it was within normal industrial quality; that there were no significant, inherent casting defects; and that the casting appeared to be sound and of normal industrial quality. He concluded that the fracture was the result of forces exceeding the strength of the legs and the basic material.

Curry’s suit against Allis and Central contended that:

“(a) The motor frame incorporated into said Drop Hammer was made of cast iron of insufficient strength to withstand the vibrations created by said Drop Hammer when in use;
(b) The motor and motor frame incorporated into said Drop Hammer were not sufficiently safeguarded so as to prevent the motor and motor frame from falling from position on said Drop Hammer;
(c) [Defendant] failed to properly warn users of said Drop Hammer that the motor frame was of insufficient strength to withstand the vibrations generated by the Drop Hammer.”

It is clear from the arguments below that Curry has at no time contended that the motor mount was defectively made. The trial court granted summary judgment to Allis and Central finding that there was “no showing of a breach of duty on the part of Allis and Central with respect to manufacture, design or warnings.”

A manufacturer is not an insurer of its product (Genteman v. Saunders Archery Co. (1976), 42 Ill. App. 3d 294, 355 N.E.2d 647, appeal denied (1977), 65 Ill. 2d 577; Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 336 N.E.2d 338, appeal denied (1976), 61 Ill. 2d 602), and it is under no duty to make products incapable of causing any injury under any circumstance. (Palmer v. Avco Distributing Co. (1980), 82 Ill. 2d 211, 412 N.E.2d 959; Hunt v. Blastus (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) Before plaintiff can recover he must prove that the product, in this case the motor and motor frame, was unreasonably dangerous; that the condition or defect was in the product when sold by the manufacturer, that the assembler made no substantial change in the motor or motor frame and that the injury was directly attributable to a condition or defect in the motor or motor frame itself (Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 407 N.E.2d 32; Bobka v. Cook County Hospital (1981), 97 Ill. App. 3d 351, 422 N.E.2d 999; Peterson v. B/W Controls, Inc. (1977), 50 Ill. App. 3d 1026, 366 N.E.2d 144; Keen v. Dominick’s Finer Foods, Inc. (1977), 49 Ill. App. 3d 480, 364 N.E.2d 502; Hepler v. Ford Motor Co. (1975), 27 Ill. App. 3d 508, 327 N.E.2d 101, appeal denied (1975) , 60 Ill. 2d 597), and an inference of defectiveness may not be drawn from the mere fact of injury. (Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill. App. 3d 1091, 419 N.E.2d 561.) When defendants filed their motion for summary judgment, plaintiff was required to present some factual basis that would arguably entitle him to a judgment under the applicable law. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.) Yet, here plaintiff produced no evidence of any kind tending to show either that the product was defective when it left the manufacturer’s or distributor’s hands or that, if it was, the defect rather than the improper installation caused the accident and resulting injury; furthermore the product was altered by the assembler. Accordingly, we conclude the court properly granted summary judgment for defendants.

Plaintiff relies on Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206,407 N.E.2d 32. In Thomas, the defendant Dover manufactured an adaptor which was incorporated without alteration into an applicator machine. The adaptor contained a check valve which prevented fertilizer in the applicator from being expelled from the applicator. However, the stem of the valve was so located on the adaptor that it could be easily bumped with a resultant expulsion of pressurized liquid. In Thomas, the accident was due to the improper positioning of the check valve; this valve was positioned by the defendant Dover; thus, the defect was in the component when it left Dover’s hands. As we have already noted, in the present case there is no evidence that the accident was not due to the improper installation of the motor and motor frame. Hence the defect causing the injury was not in the component part when it left Allis’ and Central’s hands but was created later. Likewise in Thomas the court emphasized that there was no evidence to show that any change was made to the adaptor by the assembler; the assembler simply attached the adaptor to the top of the tank. In the instant case, Cornell did change the product by enlarging the holes in the feet. Finally, the supreme court in Thomas stated that if this particular adaptor and coupler could not have been safely used together, a warning to that effect should have been given. Here Cornell was given full notice that the motor could only be used if the proper assembly and coupler were employed. The defendants had a right to assume that the employer knew how to read these instructions and would carry them out. Bakovich v. Peoples Gas Light & Coke Co. (1963), 45 Ill. App. 2d 182, 195 N.E.2d 260.

Plaintiff, relying on the safety device cases such as Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232, and Derrick v. Yoder Co. (1980), 88 Ill. App. 3d 864, 410 N.E.2d 1030, contends that Allis and Central had a nondelegable duty to see that the motor and motor frame were sufficiently safeguarded or secured so as to prevent them from falling. Rios, Derrick and the other Illinois cases finding a nondelegable duty to instaU safety devices where the machine is unifunctional all involved suits against the manufacturer of the final product, that is the assembler. It is within the power of the assembler to install a safety device on a machine. But the manufacturer of a component part has no control over that part once it is sold and has no control over the final assembly of the machine. Thus it would be absurd to hold the maker of some component, as for example the manufacturer of the rollers involved in Karabatsos v. Spivey Co. (1977), 49 Ill. App. 3d 317, 364 N.E.2d 319, liable because the assembler of the total machine did not put safety guards on it. As stated in Jordan v. Whiting Corp. (1973), 49 Mich. App. 481, 486, 212 N.W.2d 324, 328, modified (1976), 396 Mich. 145, 240 N.W.2d 468:

“The obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not * * * extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another.”

In Rios, itself, the supreme court held that once an employer has installed a safety device, the manufacturer is not liable even if the installed safety device fails.

The plaintiff’s allegation that the appellees failed to warn that the motor frame was of insufficient strength to withstand vibrations of the drop hammer is without merit because plaintiff produced absolutely no evidence tending to show that it was insufficient if properly installed and because both Ceco and Cornell were fully aware of the need for proper installation. Accordingly, Allis and Central had no duty to warn them of a fact which was already apparent. Weiss v. Rockwell Manufacturing Co. (1973), 9 Ill. App. 3d 906, 293 N.E.2d 375; Collins v. Ridge Tool Co. (7th Cir. 1975), 520 F.2d 591; Jacobson v. Colorado Fuel & Iron Corp. (9th Cir. 1969), 409 F.2d 1263; Lockett v. General Electric Co. (E.D. Pa. 1974), 376 F. Supp. 1201, affirmed (3d Cir. 1975), 511 F.2d 1394.

Finally, the plaintiff in his brief appears to contend that Allis and Central should be held liable for manufacturing only cast iron frames as they were aware of the need for motor frames of a more durable and resilient nature, having made special motor frames in the past. As we have repeatedly noted, plaintiff produced no evidence to show that the frame would not have been adequate had it been properly attached. Nor did plaintiff produce evidence tending to show that the discontinued specialized frame would have been more durable and resilient if improperly installed. But even if it would have been better, defendants had no duty to produce a product which represented the ultimate in safety. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) It is enough that, unlike Kerns, a safe use of the cast iron motor was practical.

For the reasons stated the judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ„ concur.

       Our determination of the facts has been rendered more difficult by appellant’s failure to comply with the Supreme Court Rules requiring him to set forth a statement of facts giving the relevant facts with citations to the record and to set forth in the brief a table of contents to the record on appeal. We reiterate that while the court may search the record to affirm (Board of Education v. Will County Board of School Trustees (1971), 132 Ill. App. 2d 947, 271 N.E.2d 87, appeal denied (1971), 47 Ill. 2d 589), we are not required to search the record to reverse. Geleto v. Giglietti (1976), 40 Ill. App. 3d 226, 352 N.E.2d 1, appeal denied (1976) , 64 Ill. 2d 595; Crader v. Illinois Power Co. (1971), 133 Ill. App. 2d 897, 272 N.E.2d 413.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    AMERICAN CONSULTING ASSOCIATION, INC., Plaintiff-Appellee, v. JAMES K. SPENCER, Indiv. and d/b/a J & M Design Co., et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-1725
    Opinion filed September 25,1981.

      William J. Stevens and George C. Pontikes, both of Foss, Schuman & Drake, of Chicago, for appellants.
    Harold E. Collins and Jeffrey A. Jones, both of Harold E. Collins & Associates, Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court;

In this appeal, defendants contend the granting of a motion to dismiss their petition to vacate a default judgment was error because (1) the judgment was void; and (2) their petition satisfied the requirements of section 72 of the Civil Practice Act.

Plaintiff’s four-count complaint against defendants filed March 25, 1977, alleged breach of contract, conspiracy, conversion, and intentional interference with plaintiff’s prospective business advantage, and after defendants were served with process, James K. Spencer, individually and d/b/a J & M Design Co. (James Spencer) removed the case to the Federal court where he filed motions for change of venue and to dismiss. On September 20, 1977, the case was remanded to the circuit court, following which, on October 3 and again on December 12, 1977, defendants J & M Design Services, Inc., and Charlene Spencer filed special appearances objecting to personal jurisdiction over them, and plaintiff responded to those motions. On November 12, 1977, James Spencer answered the complaint.

On March 30, 1978, there was a substitution of attorneys for defendants, and the hearing on the jurisdictional motion set for that'day was reset for May 12 and then May 25, when an order was entered setting defendants’ motion to dismiss and plaintiff’s motion for fees for hearing on July 24,1978 — which also was the next scheduled date of the case. On July 18, 1978, defendants’ substituted counsel gave notice by certified mail to defendants and to counsel for plaintiff that on July 24 they would present their motion to withdraw. This notice was received by J. Dwayne Wilcox, defendants’ Texas attorney, on July 19, 1978, in Texas, where defendants reside. On July 24, 1978, an order drafted by defendants’ counsel was entered which (1) allowed their withdrawal; (2) found that the court had personal jurisdiction over J & M Design Services, Inc., and Charlene Spencer; (3) gave defendants 45 days within which to obtain new counsel; (4) stated that “[fjurther notice of these proceedings shall be served on Dwayne Wilcox” at his Texas address; (5) set the case for status report on September 7, 1978, without further notice; and (6) continued generally plaintiff’s motion for attorney’s fees.

On September 5,1978, the status date was changed to September 22, 1978, without further notice. On that date, defendants were found to be in default for failure to appear or plead, and a prove-up of damages was set for November 1, 1978. The prove-up, after numerous continuances, was held between July 3 and August 6, 1979, with judgment eventually entered on August 31, 1979, against all defendants for $175,000, with an additional $175,000 assessed as punitive damages.

On September 1, 1979, another judge was assigned the calendar which included the instant case. He held a status call of the cases on his calendar and, apparently unaware of the August 31 judgment, dismissed the case for want of prosecution on September 18, 1979. That order was vacated on plaintiff’s motion October 12, 1979. Prior thereto, on October 9, plaintiff served defendants with a petition to register the judgment in Texas, and defendants then moved here on October 25, 1979, to vacate the judgment. A motion of plaintiff to dismiss the petition to vacate was granted on May 30, 1980, and this appeal followed.

Opinion

Defendants initially contend the trial court should have granted their petition to vacate because the default judgment was void due to the lack of or defective notice as to proceedings before the default judgment. Generally, a judgment is void if the court lacks jurisdiction over the parties or subject matter (In re Application of County Collector (1968), 101 Ill. App. 2d 1, 241 N.E.2d 641), if it was procured by fraud (Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 372 N.E.2d 965), or if the court lacks the inherent power to make or enter a particular order (Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 378 N.E.2d 1130). While a void judgment may be attacked and vacated at any time either directly or collaterally (Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271), a judgment that is merely erroneous is not void and is not subject to collateral attack (Federal Sign & Signal Corp. v. Czubak).

In the present case, no challenge is made to the court’s jurisdiction over the parties or subject matter, nor was a question raised as to the court’s inherent authority to enter the default judgment, and defendants make no allegation and the record does not disclose that the judgment was procured by fraud. Defendants suggest, however, that a judgment may also be void because of lack of or defective notice of proceedings prior to and including the judgment. We disagree. Initially, we note the three cases cited by defendants do not support their position. In Barthe lemy v. Braun (1933), 272 Ill. App. 321, which predated section 72, there was no question as to notice. A default order was entered by the trial court before the date defendant was required to plead, and this was contrary to a rule of that court. An ex parte judgment was subsequently entered, and a motion to vacate filed by defendant two months later was denied. On appeal, the judgment was held to be invalid, with the court reasoning “that a plaintiff who proceeds contrary to the rule in this respect must subsequently proceed at his peril and with the knowledge that any judgment based upon this premature order of default will be vacated and set aside upon review.” (272 Ill. App. 321, 324.) In the other two cases cited by defendants, Andonoplas v. Jaremko (1972), 9 Ill. App. 3d 298, 292 N.E.2d 225, and Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 304 N.E.2d 733, the trial courts in each case granted section 72 petitions to vacate default judgments. It was held on review in each case that the trial court lacked jurisdiction to vacate the judgment because the notice required by section 72 (see Supreme Court Rule 106 (Ill. Rev. Stat. 1977, ch. 110A, par. 106)) was not provided. A section 72 petition is not a continuation of the original suit but is a separate, independent action, and a respondent named in the petition must be notified anew and, if proper notice is not given as provided by Supreme Court Rule 106, jurisdiction is lacking. (Silny v. Lorens (1979), 73 Ill. App. 3d 638, 392 N.E.2d 267.) It appears that the reviewing courts in both Andonoplas v. Jaremko and Public Taxi Service, Inc. v. Ayrton held in effect that just as service of summons gives the court jurisdiction over defendant in an original action, the notice required by section 72 is the jurisdictional nexus in a petition filed under that section.

In the case before us, the motions concerning which defendant contends there was lack of or defective notice predated the default judgment and raise no jurisdictional questions. Moreover, it has been held that a defaulted party is not entitled to notice either of plaintiff’s intention to move for default or its existence once granted (Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 393 N.E.2d 707; Limar-Pinehurst, Inc. v. Welter (1976), 38 Ill. App. 3d 800, 350 N.E.2d 252), and that the failure to notify the defendant of a default judgment does not render it void (Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 309 N.E.2d 690). Accordingly, we reject defendant’s contention that the default judgment was void.

Defendants also contend that the default judgment was, in fact, vacated by the subsequent dismissal for want of prosecution. Pointing out that this dismissal on September 18,1979 was within 30 days of the default judgment of August 31, 1979, they argue that it constituted a vacatur thereof under section 50(5) (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)), which provides “[t]he court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” It is significant, however, that the order for dismissal for want of prosecution was apparently inadvertent, having occurred on a status call of all the cases on a calendar just assigned to the judge who entered the order. We think it clear that it resulted from the unfamiliarity of the substituted judge with the case and that the dismissal was properly vacated on plaintiff’s motion on October 12, 1979. Moreover, the unintended dismissal did not, in our view, amount to a setting aside of the default.

The dispositive question, therefore, is whether the trial court erred in granting plaintiff’s motion to dismiss defendants’ petition to vacate the default judgment. Thus, the question before us concerns only the sufficiency of that petition, which we must determine in accordance with the criteria established by statute and decisional law. Vacatur of such judgments may be obtained under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), which provides in relevant part:

“(1) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. * *
(2) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record.”

The purpose of such a petition is to bring to the attention of the trial court any facts which, if known to it at the time judgment was entered, would have altered such judgment. (Illinois Marine Towing Corp. v. Black.) Proper grounds for relief under this section exist when petitioner demonstrates (1) a meritorious defense, (2) due diligence in presenting the defense in the original action, (3) the trial court’s misapprehension of the facts or a valid defense, through no fault or negligence of petitioner, when judgment was entered, and (4) due diligence in filing the relief petition. (Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 404 N.E.2d 554.) In addition, petitioner must present supporting factual allegations justifying relief (Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 357 N.E.2d 518), but such facts need only be sufficient to show entitlement to relief from the default rather than success in the underlying action (Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 398 N.E.2d 972). However, a petition which fails to show prima facie entitlement to relief is subject to a motion to dismiss. (Reich v. Breed (1979), 70 Ill. App. 3d 838, 388 N.E.2d 994.) The decision to vacate rests within the sound discretion of the trial court (Harvey v. Harris Trust & Savings Bank (1979), 73 Ill. App. 3d 280, 391 N.E.2d 461, cert, denied (1980), 445 U.S. 929, 63 L. Ed. 2d 762, 100 S. Ct. 1316) and will not be disturbed on review absent abuse of discretion (American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 400 N.E.2d 102).

We find no such abuse of discretion here, as we believe that the criteria needed to demonstrate the right to relief under section 72 were not satisfied. Defendants are arguably correct, first of all, that they exercised due diligence in presenting their petition to vacate, as they did so within 20 days of plaintiff’s filing of a petition to register the judgment in Texas; but, while James Spencer may have presented a meritorious defense to the breach of contract count in his proposed amended answer in which he admitted the existence of the agreement but asserted breaches thereof by plaintiff, no such defense was presented in the original action and, in fact, he denied the existence of the agreement in his initial answer. Furthermore, he has presented no defense to the counts sounding in conspiracy conversion or intentional interference with plaintiff’s prospective business advantage and, of course, the other defendants have presented no defense to any count.

Additionally, over years elapsed from the time defendants were first served with process and more than one year after the withdrawal of their second counsel before they moved to vacate. In the interim, James Spencer sought removal to the federal district court; Charlene Spencer and J & M Design Services, Inc., challenged the trial court’s exercise of personal jurisdiction; all defendants obtained the services of other attorneys; James Spencer filed an answer which admitted to a general denial; and defendants’ second counsel withdrew. While such activity was minimal relative to the time that expired, we are struck by the absence of the assertion of a defense. In our view, the totality of the facts attest to the lack of due diligence on the part of all defendants in asserting their defenses. See Illinois Marine Towing Co. v. Black; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App. 3d 667, 360 N.E.2d 1355; Hogan & Farwell, Inc. v. Meitz (1976), 45 Ill. App. 3d 216, 359 N.E.2d 740; cf. Steinberg’s Department Store, Inc. v. Baysingar (1980), 86 Ill. App. 3d 1140, 409 N.E.2d 8.

Similarly, defendants fail to show that through no fault or negligence of their own, error of fact or a valid defense was not presented to the trial court at the time the default judgment was entered. All parties have a general duty to follow the progress of their case (Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719), and section 72 does not afford a remedy to relieve a litigant of the consequences of his own mistakes or his counsel’s negligence (DeMet v. DeMet (1979), 74 Ill. App. 3d 680, 394 N.E.2d 3). Defendants’ assertion that they were not notified of the proceedings is unavailing in light of their failure to present facts which would support a finding of reasonable mistake. The record contains no information that they contacted their second set of attorneys, plaintiff’s attorney, or the court to ascertain the status of the case; or that they attempted to appear at the July 24 hearing, hire other counsel when their attorneys withdrew on that date, obtain a copy of that July 24 order or any other order, or that they made any effort to follow the case at any time thereafter. Considering the course of defendants’ conduct, it seems clear that even if there was a failure to apprise the trial court of an error of fact or of a valid defense at the time judgment was entered, defendants were not free of fault or negligence in not bringing such matter to the court’s attention. Accordingly, defendants cannot be relieved of the consequences of their own or their counsel’s failure to follow the progress of the case.

Defendants correctly point out that where justice and fairness so require, a judgment may be vacated even though the requirement of due diligence has not been satisfied. (Reuben H. Donnelley Corp. v. Thomas; Lutz v. Lutz (1977), 55 Ill. App. 3d 967, 371 N.E.2d 348.) Thus, an exception to the due diligence requirement is recognized when it is clear from all the circumstances that a party has procured an unconscionable advantage through the extraordinary use of court processes. (Norvell v. Howard (1979), 72 Ill. App. 3d 698, 391 N.E.2d 101.) It also has been held that inadvertent failure to follow a case is not proper grounds for relief; but, rather, that some fraud or fundamental unfairness must be shown in order to invoke the court’s equitable powers (Kohler v. Sears, Roebuck & Co. (1977), 56 Ill. App. 3d 157, 371 N.E.2d 1044). In our view, the conduct of plaintiff does not warrant the conclusion that court processes were used to gain an unconscionable advantage, nor does it suggest fraud or fundamental unfairness. Thus, we think it improper to relax the requirement of due diligence in the present case.

For the reasons stated, the judgment is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

       On January 19,1979, the default order entered against Xerox Corporation (Xerox) was vacated, and it was given 30 days to answer or plead. The time was further extended on February 12, 1979, by stipulation. Xerox was subsequently dismissed without prejudice.


author: Mr. PRESIDING JUSTICE HARTMAN

text:
    BAKER-WENDELL, INC., Plaintiff-Appellant, v. EDWARD M. COHON & ASSOCIATES, LTD., Defendant-Appellee.
    First District (2nd Division)
    No. 80-2284
    Opinion filed September 29,1981.

      Thomas M. Joyce, Ltd., of Chicago, for appellant.
    Much, Shelist, Freed, Denenberg, Ament & Eiger, P. C., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Baker-Wendell, Inc., professional architects, sought to recover from defendant Edward M. Cohon & Associates, Ltd., ostensibly a partner in the Woodlawn Commons Partnership, owner of Woodlawn Commons, Fairfax County, Virginia, fees and expenses for professional architectural services allegedly rendered to defendant in connection with a Federal Housing Authority (FHA) building project that was never begun. Plaintiff appeals from an order which granted defendant’s motion for judgment on the pleadings and raises the issue of whether there are material issues of fact set forth by the pleadings precluding the entry of such judgment. For the following reasons, we affirm.

On October 7, 1977, plaintiff filed a verified complaint against defendant alleging that on May 12,1972, plaintiff entered into an agreement in writing with defendant in which plaintiff agreed to render architectural services as set forth in Exhibit A of the complaint. Exhibit A was a letter from plaintiff addressed to Edward M. Cohon of defendant firm, regarding the proposed project, and contained plaintiff’s proposal to perform the following services: plaintiff will act as supervising architect as per FHA requirements and provide liaison between FHA and defendant during the design stage; as agent for defendant, plaintiff will assist in obtaining permits, plan approvals, sewer rights, etc., as required, all permit fees and charges to be borne by the sponsor; in consideration for the above, plaintiff is to receive the fee as allowed by FHA for supervising architect; and, the cost of long distance calls and travel are to be borne by defendant. The letter was dated May 1, 1972, and was accepted May 12, 1972.

Plaintiff’s complaint further alleges that in reliance on the foregoing agreement, it performed “a variety of professional services” for defendant between May 12,1972, and March 31,1973, expending time and effort having a value of $4,137, as set forth in Exhibit B of the complaint. Exhibit B was a letter from M. W. Wendell of plaintiff firm to defendant regarding the Woodlawn Commons project dated January 8, 1974, which purported to be an itemized statement of money due for professional services: “principals time from Apr. 1972 thru Mar. 1973 98 hrs. @ $35.00/hr.,” plus expenses, prints, postage rendering and “Keeler & Assoc.,” totalling $4,137. Plaintiff demanded payment of said sum and sent defendant a statement of account, but defendant failed to pay said indebtedness. Plaintiff demanded judgment for $4,137, plus interest.

Defendant filed a motion to dismiss the complaint on December 1, 1977, alleging that: the complaint did not state the amount of the fee allowed by FHA; plaintiff performed no supervisory services; no fees were in fact allowed by FHA or paid by the owner; and, plaintiff did not supervise construction of the project since the project was never constructed. On March 8, 1978, the court granted defendant’s motion and gave plaintiff leave to amend the complaint.

On March 27, 1978, plaintiff filed an amended verified complaint alleging that: plaintiff performed professional services at defendant’s request from April 1972 through March 1973, such as reproducing blueprints, proofreading and studying blueprints, engineer site work, land surveys and soil tests; defendant had represented to plaintiff that it intended to build an apartment project and the services requested were in connection therewith; defendant had orally agreed on April 1, 1972, via a telephone conversation between representatives of plaintiff and defendant respectively, that defendant would recompense plaintiff for services whether or not the project was built; the project was abandoned by defendant before construction began; plaintiff sent defendant a statement in January 1974 of charges for services performed as of that date, a copy of which was attached as Exhibit A; defendant had already paid for a portion of services rendered prior to the submission of the statement; and there is presently past due and owing from defendant to plaintiff for said professional services, and upon an account stated, $4,137, which defendant had refused to pay. No reference was made in the amended complaint to the latter agreement identified as Exhibit A in the initial complaint, nor was a claim made for services as supervising architect. Exhibit B of the original complaint, comprising the statement of charges, was attached to the amended complaint as Exhibit A.

In its answer, defendant denied the alleged oral agreement between the parties and denied owing plaintiff money for services rendered on an account stated. As an affirmative defense defendant claimed that plaintiff’s May 1, 1972, letter of proposal, accepted by defendant, formerly attached as Exhibit A to plaintiff’s original complaint, provided that plaintiff shall receive as compensation for its services a sum as allowed by FHA and asserted that no such sum had been allowed. Under the terms of its own agreement, defendant charged, plaintiff was not entitled to any payment for its services. Plaintiff’s letter was made Exhibit A of the affirmative defense. Plaintiff did not file a reply to defendant’s affirmative defense.

On July 16,1980, defendant moved for judgment on the pleadings on the grounds that plaintiff’s claim for an account stated was without merit since defendant did not agree or acquiesce to said account stated and, the failure of plaintiff to reply to the allegations of defendant’s affirmative defense constituted an admission of the truth of “new matter,” i.e., the fact of an express contract in effect between the parties, raised therein.

Plaintiff filed a motion to dismiss defendant’s motion for judgment on the pleadings and argued that: no new matter was presented in defendant’s answer; the “express contract” alluded to by defendant raised issues of fact, and moreover, has been superseded by a later instrument, attached to plaintiff’s motion as Exhibit A; the sums demanded by plaintiff were payment for services other than those contemplated in either instrument; and, assuming arguendo the existence of an express contract, plaintiff could still recover on the basis of quantum meruit.

The court granted defendant’s motion for judgment on the pleadings on July 16, 1980, from which this appeal proceeds.

Defendant was authorized to move for judgment on the pleadings under section 45(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(5)). A motion for judgment on the pleadings: requires an examination of the pleadings to determine the existence or absence of an issue of fact, or whether the controversy can be resolved solely as a matter of law, or not; admits all well-pleaded facts set forth in the respondent’s pleadings; draws all fair inferences from the respondent’s pleadings; and contemplates that the moving party is entitled to judgment as a matter of law. See, e.g., Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 821, 420 N.E.2d 567.

In the present case, the May 1972 letter agreement, drafted by plaintiff and signed by defendant, was made part of plaintiff’s initial verified complaint as Exhibit A, and was subsequently raised as an affirmative defense in defendant’s answer to plaintiff’s amended verified complaint. An allegation in paragraph 2 of the initial complaint asserts that “Between 12 May 1972 and 31 March 1973, the Plaintiff, in reliance on this agreement, performed a variety of proffessional [sic] services for the Defendant and thereby expending [sic] considerable time and effort thereon to the amount and value of $4137.00 as set forth more fully in Plaintiff’s Exhibit ‘B’ attached hereto.” Under section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36), Exhibits A and B, the contract and statement of charges attached to the complaint, became a part of that pleading for all purposes. Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145, 404 N.E.2d 1104; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.

Exhibit A sets forth the obligations of plaintiff to provide professional services in connection with the Woodlawn Commons FHA project and makes the following provision: “In consideration for the above Baker-Wendell, Inc. is to receive the fee as allowed by FHA for supervising architect.” Exhibit B, the statement of charges, contains the assertion: “I am submitting this statement of money due for professional services in connection with Woodlawn Commons,” and lists, in addition to other items, “Principals time from Apr. 1972 thru Mar. 1973 98 hrs. @ $35.00/hr. $3,430.00.” The total amount due as shown by Exhibit B is $4,137. The foregoing sworn allegations constitute judicial admissions by plaintiff that the services rendered in connection with Woodlawn Commons were those executed pursuant to and in reliance upon the May 1972 written contract, Exhibit A. These judicial admissions had the effect of withdrawing those facts from issue and dispensed wholly with the need of their proof. (Precision Extrusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 50, 183 N.E.2d 547.) Further, those admissions remained binding upon plaintiff ever after its filing of an amended complaint. (Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 958-59, 376 N.E.2d 621.) When considered together with the concessions made by plaintiff that it never performed any duties as a supervising architect, nor demanded payment for such services; that the project was never built; and that the FHA never allowed any fees for a supervising architect, it becomes clear that the trial court’s decision to grant judgment on the pleadings was correct.

The amended verified complaint omitted the attachment of the May 1972 contract as an exhibit, but did include the previous Exhibit B, the January 8,1974, statement of charges, which it now denominated Exhibit A of the amended complaint. That exhibit contained the very same elements of charges, including the time expended by the principal, with identical dates, and the identical total, $4,137. The amended complaint alleged, however, that: “The Defendant orally agreed on 1 April 1972 via a telephone conversation between Mr. Cohon of Defendant corporation and Mr. Wendell of the Plaintiff corporation that the requested services Plaintiff agreed to provide would be paid for by the Defendant whether said project was ultimately built or not.” The amended complaint went on to allege that: “In January of 1974, the Plaintiff sent to the Defendant a written statement of services performed and monies owed the Plaintiff therefore [sic] as of that date, a copy of which is attached hereto as Plaintiff’s Exhibit A and by reference made a part hereof.” Thus, the same services for which plaintiff sought recompense in its 1974 statement of charges, which plaintiff swore in its initial complaint were rendered in reliance upon the May 1972 contract, were now alleged to have been performed as a result of an April 1972 telephone conversation, in its amended verified complaint. Plaintiff may not both “hold with the hare and run with the hounds.”

To defeat recovery, a party’s judicial admission must: be deliberate; relate to concrete facts; and not amount to matters of opinion, estimate, appearance, inference or uncertain summary. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 569, 390 N.E.2d 60.) Admissions by a party which are so deliberate and unequivocal as to matters within its knowledge will be deemed to conclusively bind that party and it will not subsequently be heard to contradict those admissions. (Haskell v. Siegmund (1960), 28 Ill. App. 2d 1,11,170 N.E.2d 393; Meier v. Pocius (1958), 17 Ill. App. 2d 332, 335, 150 N.E.2d 215.) Plaintiff’s admission in its initial verified complaint that it relied upon the May 1972 written contract for which its January 1974 statement of charges was made, and the concomitant understanding that plaintiff was to receive only those charges permitted by the FHA, are so unequivocal and deliberate as to preclude a subsequent allegation in its amended complaint that the very same charges were incurred by defendant as a result of a previous telephone conversation set forth in the amended complaint. Plaintiff will not be invited to change its sworn allegations or to reconstruct them so as to avoid the consequences of its previous sworn pleading. Meier v. Pocius (1958), 17 Ill. App. 2d 332, 335.

Plaintiff seeks to create an issue of fact with respect to whether the claims raised under each of its complaints are in reality claims for different services, denominated “preliminary,” “supervisory,” “architectural” and “professional.” The fact that the charges made in its January 1974 statement are identical in each complaint topples defendant’s effort to differentiate those services, particularly since plaintiff first swore that the services rendered were in reliance upon the May 1972 contract in its initial complaint.

Plaintiff asserts that the wording of its letter contract and statement for services rendered cannot be construed, as a matter of either fact or law, as an admission that regardless of its performance, plaintiff might or might not be paid for its services, and it seeks to apply the rules of construction laid down in Furst v. Board of Education (1959), 20 Ill. App. 2d 205, 155 N.E.2d 654. Among the points made in Furst is that any ambiguity in a contract is to be construed most strongly against the party who prepared it, in this case plaintiff. Further, in Furst plaintiff’s judgment for payment for certain architectural services was reversed and a written contract which expressly provided that the architect would be paid only for those services performed prior to the abandonment or suspension of a project were express provisions within which plaintiff’s right to recover was limited. Plaintiff’s reliance upon Stark v. Ralph F. Roussey & Associates, Inc. (1975), 25 Ill. App. 3d 659, 323 N.E.2d 826, is also misplaced. In Stark, the appellate court held that the trial court erred in having granted plaintiff damages on the basis of quantum meruit, rather than in accordance with the terms of the written contract agreed to by the parties. Noris the third case cited by plaintiff of any aid to its position, since Michalowski v. Richter Spring Corp. (1969), 112 Ill. App. 2d 451, 251 N.E.2d 299, also held that the written contract controlled plaintiff’s entitlement to damages. The contract there established payment of a percentage of the “construction cost” but did not define that term, and the appellate court recognized that since the defendant there owned the project and controlled its fate, defendant would not be allowed to escape liability by changing its intention to build.

It is clear from the verified pleadings and exhibits in the instant case that plaintiff was to have been allowed fees for services rendered upon the approval of the FHA. That approval, both parties acknowledge, was never forthcoming. We find no error in the trial court’s entry of judgment on the pleadings which, accordingly, must be affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.

       Each complaint filed by plaintiff in the case sub judice was signed and sworn to by plaintiff’s attorney. No suggestion was made before the trial court or on appeal that he was without authority to do so or lacked requisite knowledge. Indeed, plaintiff relies upon its amended complaint signed and sworn to by the same attorney as the basis for its recovery. Admissions of fact binding upon a party may be made by an attorney in a pleading. Merritt v. Greves (1980), 82 Ill. App. 3d 863, 866, 403 N.E.2d 475.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE TORRES et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 79-668, 79-669 cons.
    Opinion filed September 30, 1981.

      Glen E. Gutsche, of Chicago, for appellant Jose Torres.
    Sheldon L. Banks, of Chicago, for appellant Miguel Trinidad.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Myra J. Brown, and Mark A. Graf, Assistant State’s Attorneys, of counsel), for the People.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

Jose Torres and Miguel Trinidad, the defendants, were charged by indictment with attempt murder and aggravated battery. At a bench trial they were convicted of reckless conduct and were sentenced to 364 days imprisonment.

The defendants raise the following issues on appeal: (1) whether they were convicted of reckless conduct beyond a reasonable doubt; (2) whether the trial court erred in denying a motion to suppress identification testimony; and (3) whether the sentences imposed upon them were excessive.

At trial, Marie Barmes testified that at 7:30 p.m. on October 10,1976, when she was 12 years old, she was outside of her home at 5200 South Bishop with Ann Marie Zellinski, Brian Zellinski and Mary Skwarczyk. Bishop Street was a southbound one-way street. Marie was standing with Mary on 52d Street near the north side of the house. Ann Marie and Brian were playing on the grass on 52d Street near Bishop. As Marie was writing her name on the side of her house, she observed a yellow Nova automobile on 52d Street coming towards her. She noticed the car for a few seconds and last saw it as it approached the curb at the corner of 52d Street and Bishop. While she continued to write her name, she heard a firecracker-like noise, felt a tingling sensation in her legs and saw blood. Marie was taken to the hospital and a bullet was removed from her right leg.

Marie was unable to identify her assailants and could not state how many people were in the car. It was dark outside at the time of the incident.

Ann Marie Zellinski, who was also 12 years old at the time of the incident, testified that when Marie was shot, she was wrestling with her brother by the Barmes house on the grass outside the sidewalk near the street. Ann Marie was about two to four feet from Bishop Street and two feet from 52d Street. It was dark outside at this time. Ann Marie first noticed a yellow or lime colored Nova travelling eastbound on 52d Street when it was seven feet from her. She knew the car was a Nova because her friends, John Sternquist and Clayton Sims, drove Novas.

Ann Marie further testified that it took approximately two minutes for the car to travel the two blocks and to turn south in front of the Barmes house. For 10 seconds, as the car passed by her, she observed two male Puerto Ricans or Latinos who she identified as the defendants. The car stayed in front of the house for 30 seconds with the passenger side nearest to the curb. While the car was parked, Ann Marie heard a firecracker-like noise. She looked at Marie and then at the car. The passenger in the car had his arms out of the front window holding a black colored gun. Ann Marie identified the gun at trial and said she was two to four feet from the car when she saw the gun. She could not say where each of the defendants were sitting in the front seat of the car and could not say who fired the gun.

Ann Marie testified that, after the shooting, she heard laughter and conversation, in a language she did not understand, coming from the car. After Marie fell to the ground, the car pulled away rapidly from the curb, and travelled south on Bishop and east on 53d Street. About two minutes later, the police arrived.

Ann Marie stated that she could not give the police a description of the assailants’ clothing or their facial characteristics. She told the police officers that one of the offenders had curly hair and that the other had an Afro-like hairdo which was pushed back. She denied saying that the offenders might be white males and did not remember telling the officers that the offenders were 19 or 20 years old. Ann Marie stated at trial that the offenders were in their thirties.

Ann Marie further testified that, on the night of the shooting, she was brought to the police station and was told to look into a room where the offenders were present. When she looked into the room she did not see the offenders but she saw two Caucasian men, who she thought were plainclothes police officers, sitting at a desk. She could not see the entire room. Ann Marie did not make any identifications of the defendants until the preliminary hearing. While at the station, she observed a light green Nova with bullet holes in the door and stated that that car was similar to the one the offenders had driven.

On cross-examination, Ann Marie said she first saw the Nova automobile when it was two blocks to the west. She admitted that at the preliminary hearing she testified that she first saw the car when it was in front of the Barmes house. She did not remember stating at the preliminary hearing that the car was parked when she first observed it. Ann Marie also admitted that at the preliminary hearing she said she could see the faces of the car occupants when the car was stopped in front of the house.

David Ryan, a tactical officer for the Chicago Police Department, testified that on October 10, 1976, at about 7:50 p.m., he responded to a radio call that a girl had been shot on the southwest corner of 52d Street and Bishop. Based on what he had been told by the people at the scene, he sent a radio message regarding a gold colored Nova containing two male Puerto Ricans that was southbound from 5200 South Bishop.

Officer Jerry Katauskas of the Chicago Police Department Special Operations Group testified that at about 7:50 p.m., on October 10, 1976, he and his partner were patrolling an area approximately nine blocks from 5200 South Bishop. They heard the radio call and subsequently observed a vehicle fitting the description travelling southbound on Ashland Avenue. After the vehicle pulled to the curb, at 5504 South Ashland Avenue, Officer Katauskas and his partner approached the occupants. Officer Katauskas identified defendant Trinidad as the driver of the car and defendant Torres as the passenger. A gun holster was observed on the center hump of the Nova’s floor between the passenger’s seat and the driver’s seat. Officer Katauskas searched the Nova and discovered a loaded .32-caliber semiautomatic handgun under the dashboard on the extreme left side. The defendants were arrested. Officer Katauskas testified that he believed he and his partner took the defendants and the handgun to the tactical office for processing. He stated that he did not see Ann Marie Zellinski in the tactical office that night. Officer Katauskas also testified that other policemen, including some in plain clothes, were present in the office and that, from where he was sitting, the doorway to the room could not be seen in its entirety.

Officer Louis Velez of the Chicago Police Department testified that at about 8 p.m. on October 10, 1976, he arrived at 55th and Ashland and spoke to Officer Katauskas. He then approached the defendants and, in Spanish, informed them of the reason for their detention. Velez stated that he handcuffed the defendants and placed them in the rear of his vehicle and took them to the police station. While in the police car, defendant Trinidad told Velez that the Nova and handgun belonged to him and that the gun had been test fired earlier that evening in the back of his store.

Officer Joseph Garofalo of the Chicago Police Department testified that on October 10, 1976, he and his partner responded to a call at 5200 South Bishop. He remained at the scene for approximately ten minutes and then-toured the area. Later that evening he took Ann Marie Zellinski and her mother to the police station to view the defendants. Ann Marie went to the door of the tactical office, looked into the room and did not recognize anyone. Garofalo testified that he stood next to her and could not see the entire office. Garofalo did not know the identity of the two Caucasian men sitting at the desk in the room.

On cross-examination, Garofalo testified that Ann Marie described the occupants of the Nova as being two male Puerto Ricans and that she did not give a description of the offenders’ hair. He admitted that the report he prepared indicated that Ann Marie said the offenders were either 19 or 20 years of age.

Sergeant Donald Smith of the firearms identification section, criminalistics division of the Chicago Police Department, testified that he examined a .32-caliber bullet recovered from Marie Barmes’ leg and that he made a microscopic comparison of that bullet with bullets that had been test fired from the .32-caliber semiautomatic gun that had been recovered by the police from the Nova automobile. Smith concluded that the bullet recovered from Marie Barmes’ leg was fired from the .32-caliber gun.

On cross-examination, Smith testified that he did not perform certain comparative tests described by defendants’ counsel. He also stated that his written report regarding the instant case listed class but not individual characteristic similarities between the test fired bullets and the bullet recovered from Barmes’ leg.

At the close of the State’s case, the parties stipulated that defendant Trinidad was 38 years old and defendant Torres was 52 years old.

As a defense witness, Investigator Raymond Latimer of the Chicago Police Department testified that he prepared a report regarding the shooting of Marie Barmes. The report described the offenders as “two unknown male white or male Puerto Ricans.” This report was written before Latimer interviewed Ann Marie and was based upon descriptions given to Latimer by another police officer. Latimer denied telling the defense attorneys before trial that Ann Marie had given this description to him. Latimer further testified that he spoke to Ann Marie several weeks after the incident and that she said the offenders were two male Puerto Ricans. She also told Latimer that she had been taken to the police station to view two suspects but that she did not see the men who shot Barmes.

John Sternquist testified that he lived two blocks from the Barmes house. He did not know Ann Marie Zellinski and he did not own and had never driven a Nova in the vicinity of 52d Street and Bishop. On cross-examination, he testified that during October of 1976 he had driven a blue Nova approximately 20 times in the vicinity of 1440 West 34th Street where he worked.

The final defense witness was Clayton Sims. Sims testified that he lived on the 5200 block of South Ashland during October of 1976. He did not know Ann Marie Zellinski and did not own a Nova or drive in the area of 52d Street and Bishop. None of his family or friends owned Novas.

At the conclusion of the trial, the court found both defendants guilty of reckless conduct.

I

A.

On appeal, the defendants initially argue that they were not proven guilty beyond a reasonable doubt of the offense of reckless conduct. The defendants base this contention on alleged inconsistencies in the testimony of Ann Marie Zellinski and Officer Louis Velez and on the weak ballistics testimony of Sergeant Donald Smith.

The defendants first contend that Ann Marie’s testimony and identifications were improbable and unsatisfactory because of inconsistencies as to when she first saw the Nova, when she observed its occupants, her description of the occupants, and who she knew who drove Novas. The defendants further contend that Officer Velez’ testimony was doubtful because it conflicted with the testimony of Officer Katauskas as to who transported the defendants to the police station after their arrest and because Velez did not make out a police report concerning defendant Trinidad’s alleged statements.

Where evidence conflicts in a bench trial, it is the province of the trial judge to determine the credibility of the witnesses and the weight to be afforded their testimony and to resolve the inconsistencies and conflicts therein. (E.g., People v. Pagan (1972), 52 Ill. 2d 525, 288 N.E.2d 102; People v. Cozzi (1981), 93 Ill. App. 3d 94, 416 N.E.2d 1192.) A conviction based upon this determination must be accepted by the reviewing court unless the evidence is so improbable as to raise a reasonable doubt of guilt. E.g., People v. Jones (1981), 93 Ill. App. 3d 475, 417 N.E.2d 647.

We have reviewed the evidence in the case at bar and find that the conflicts in testimony outlined by the defendants do not raise a reasonable doubt of their guilt. The defendants were convicted based upon the testimony of Ann Marie Zellinski, including her identifications of the defendants, and upon circumstantial evidence. While Ann Marie’s testimony was subject to impeachment, it was persuasively corroborated by other evidence. (See People v. White (1978), 69 Ill. App. 3d 830, 387 N.E.2d 728, cert, denied (1980), 444 U.S. 1090, 62 L. Ed. 2d 778,100 S. Ct. 1054.) Immediately after the shooting, the defendants were apprehended while driving a vehicle that fit Ann Marie’s description. Inside the car was the gun that was later identified as the weapon used to shoot Marie Barmes. We believe that the defendants’ convictions were supported by the weight of the testimony at trial.

We also reject the defendants’ contention that Sergeant Smith’s ballistics testimony was questionable because Smith’s determination was based upon a comparison of bullets using his naked eye, because he did not produce photographs of the bullets so that the trial judge could make his own evaluation of that evidence, because he did not make a comparison of the bullets’ casings and because his report did not contain a list of the individual characteristic similarities of the test fired and recovered bullets. Although Sergeant Smith did not perform certain comparative tests described by defendants’ counsel, we find his testimony credible. Based upon Smith’s knowledge and experience, and upon the testing he did conduct, he concluded that the bullet recovered from Marie Barmes’ leg was shot from the weapon found in the car occupied by the defendants. The defendants have not shown that Smith’s conclusion was premised on inaccurate or questionable testing methods. While additional tests could have been performed by Smith, we find that his credibility was not impeached because he did not do them.

B.

The defendants also assert that the evidence was insufficient to prove each of them guilty beyond a reasonable doubt under the accountability theory. In the context of this argument, both defendants assume that Trinidad drove the Nova and Torres was the passenger. Each assumes that the other shot Marie Barmes.

At the outset, we feel it necessary to note that the trial judge did not determine which defendant did the shooting. Such a determination was not necessary, however. (See People v. McClindon (1973), 54 Ill. 2d 546, 301 N.E.2d 290, cert. denied (1974), 415 U.S. 992, 39 L. Ed. 2d 889, 94 S. Ct. 1593.) Both reckless conduct convictions can be upheld if it can be shown that the defendants shared a conscious disregard of the substantial and unjustified risk of harm to Barmes. Ill. Rev. Stat. 1975, ch. 38, pars. 4 — 6, 12 — 5; see People v. Bolden (1978), 59 Ill. App. 3d 441, 375 N.E.2d 898 (involuntary manslaughter).

To be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (Ill. Rev. Stat. 1975, ch. 38, par. 5 — 2.) Such an intent can be proved by evidence that the defendant shared the criminal intent of the principal or that there was a community of unlawful purpose. The latter is shown by prior deliberation to commit the specific offense or by the spontaneous and combined participation of a group in the perpetration of the offense. (People v. Bolden; see People v. Richardson (1965), 32 Ill. 2d 472, 207 N.E.2d 478, cert. denied (1966), 384 U.S. 1021, 16 L. Ed. 2d 1023, 86 S. Ct. 1935.) Mere presence or negative acquiescence are insufficient to prove guilt. However, one may aid or abet without actively participating in the overt act; and if proof shows he was present at the crime without disapproving or opposing it, this conduct together with other circumstances can be considered by the trier of fact in concluding that such person assented to the criminal act, lent his countenance and approval and was thereby aiding and abetting the crime. (People v. Nugara (1968), 39 Ill. 2d 482, 236 N.E.2d 693, cert. denied (1968), 393 U.S. 925, 21 L. Ed. 2d 261, 89 S. Ct. 257; People v. Clark (1963), 30 Ill. 2d 67, 195 N.E.2d 157; People v. Bartlett (1980), 91 Ill. App. 3d 138, 414 N.E.2d 253.) Similarly, a close affiliation with the co-defendants after the commission of the crime, and a failure to report the incident is relevant to establishing accountability. People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105.

The defendants in the instant case argue that their mere presence at the scene of the crime and subsequent flight are not sufficient proof of guilt under the accountability theory. Both defendants rely on the spontaneous way in which the shooting allegedly occurred and contend, therefore, that the State did not establish that they had knowledge of the shooting before it occurred or that they aided in its planning or commission.

We disgree. Relying on facts assumed by the defendants, we believe that there was sufficient evidence to conclude that both defendants participated in the shooting of Marie Barmes and were thus accountable for that crime. Assuming Torres shot Barmes, the evidence shows that Trinidad drove the Nova to the curb and stopped the car. The evidence also shows that, after the shooting, laughter was heard coming from both occupants of the car. Thus, as Trinidad was present at the scene of the crime and obviously did not disapprove of or oppose the shooting, the trial court could properly conclude that he aided and abetted the crime by assenting to the criminal act and lending his countenance and approval. People v. Nugara; People v. Clark.

Similarly, assuming Trinidad shot Marie Barmes, Torres would be accountable for the criminal act. Trinidad would have had to reach across the passenger side of the car with the gun. Torres would have had to position himself to avoid the bullet and to give Trinidad access to the window and an unobstructed view of the area. Again we note that both occupants laughed after the shooting occurred. Thus, there was ample evidence to show that Torres aided and abetted the crime by creating conducive conditions and by failing to oppose or prevent its occurrence. For these reasons, the defendants were convicted of reckless conduct beyond a reasonable doubt.

II

The second issue raised by the defendants on appeal is that the trial judge erred in denying their motion to suppress Ann Marie’s in-court identifications of them. The defendants contend that these identifications were tainted by suggestive pretrial show-up procedures-at the police station on the night of the defendants’ arrest and at the preliminary hearing.

Ann Marie testified at trial that she did not make any identifications at the police station because she did not see the offenders in the tactical office. The defendants question the truthfulness of this assertion. We note, however, that the testimony of Officers Garofalo and Katauskas supports Ann Marie’s testimony in this regard. Thus, as Ann Marie did not see the defendants at that time, we cannot say that her in-court identifications of them should have been suppressed because of that alleged suggestive viewing of the defendants at the police station.

The defendants also contend that the preliminary hearing identifications were made under suggestive conditions so as to deny them their right to a fair trial. The suggestive nature of a preliminary hearing identification was recognized in Moore v. Illinois (1977), 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458. The court in Moore stated in a footnote that counsel for the defendant could have prevented some or all of the suggestiveness of the corporeal identification by requesting that the hearing be postponed until a lineup could be arranged, or by asking that the occurrence witness be excused from the courtroom while the charges were read and the evidence against the defendant recited, and by asking that the defendant be seated with other people in the courtroom when the occurrence witness attempted an identification.

Identifications of defendants at preliminary hearings have been distinguished from police identification procedures because during the former the identification witnesses are not present merely to observe and identify the defendants. Rather, the witnesses are present to testify for the State and are available for cross-examination by defense counsel as to the strength of the identification. Recognizing this distinction, the court in United States ex rel. Riffert v. Rundle (3d Cir. 1972), 464 F.2d 1348, cert. denied (1974), 415 U.S. 927, 39 L. Ed. 2d 484, 94 S. Ct. 1434, held that the defendant therein was not denied due process when he was identified at the preliminary hearing even though the State’s witnesses saw him being led into the courtroom handcuffed and accompanied by two policemen and his attorney.

In the case at bar, the motion of the defense counsel to exclude witnesses from the courtroom during the preliminary hearing was granted. When Ann Marie identified the defendants, ample opportunity was given to defendants’ counsel to cross-examine her as to her identifications. The defendants’ counsel did not request a lineup, and the record does not indicate where the defendants sat during the preliminary hearing.

In a similar factual situation, the court in Haberstroh v. Montanye (2d Cir. 1974), 493 F.2d 483, rejected the defendant’s argument that the preliminary hearing identification was objectionable. In Haberstroh, defendant’s counsel neither objected to the preliminary hearing identification nor requested a lineup. Counsel did closely cross-examine the witness at the hearing. Based on the witness’ close-range observation of the defendant at the time of the crime together with corroborative evidence, the court concluded that there was no substantial likelihood of misidentification.

In the instant case, Ann Marie testified that she viewed the defendants for 10 seconds as the car passed by her and turned the corner to travel south on Bishop. Her observation of the defendants at this time, together with the strong corroborative evidence, leads us to a conclusion that there was no substantial likelihood of misidentification. Thus the identifications were properly admitted and there was no denial of due process. The alleged suggestiveness of the identification procedures would merely affect the weight of the identification testimony. (People v. Holden (1980), 91 Ill. App. 3d 532, 414 N.E.2d 1124.) Here the trier of fact chose to believe the State’s evidence, and we find no reason to reverse that determination.

Ill

As their final argument on appeal, the defendants argue that the sentences imposed upon them were excessive. The defendants were given the maximum imprisonment term and contend that the trial judge did not consider mitigating factors as required by section 5 — 5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005 — 5—3.1).

It is undisputed that at the time of sentencing defendant Trinidad was the sole supporter of his wife and child, had a regular job and had one prior conviction for a minor offense. Defendant Torres had no criminal record and had worked at the same job for 25 years. He was 51 years old and was on leave from his job due to a diabetic condition.

A trial court’s decision in regard to sentencing is entitled to great deference and weight because the trial judge has had an opportunity to observe and consider many factors such as the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) When sentencing a defendant, the trial judge must balance the protection of society and the possible rehabilitation of the offender. (People v. Belcher (1980), 92 Ill. App. 3d 237, 415 N.E.2d 1120.) It is not the function of reviewing courts to serve as sentencing courts, and they cannot substitute their judgment for that of the trial judge merely because they would have balanced the appropriate factors differently. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Absent an abuse of discretion, the trial court’s sentence will not be altered on review. People v. Perruquet.

Defendant Torres relies on People v. Blumstengel (1978), 61 Ill. App. 3d 1016, 378 N.E.2d 401, to argue that the imposition of the prison sentence was an abuse of discretion. Blumstengel is distinguishable, however, because in that case the trial judge failed to consider the gravity of the offense or the defendant’s prior criminal record. The trial judge in the case at bar did consider the seriousness of the offense as a factor in aggravation. (See Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005 — 5—3.2.) It was for that reason that the trial judge imposed the imprisonment sentences for both defendants. We cannot say that the imposition of such sentences for the senseless shooting of a 12-year-old child by two mature adults is an abuse of discretion.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

RIZZI, P. J., and McNAMARA, J., concur.

       On cross-examination, Officer Velez testified that he did not make a report concerning Trinidad’s statements but that he did inform other police personnel of the substance of the statements.

       The granting of a request by the defendant for a lineup at a preliminary hearing is discretionary. Some relevant factors are the length of time between the crime or arrest and the request, the possibility that the defendant may have altered his appearance, the extent of inconvenience to prosecution witnesses, the possibility that revealing the identity of the prosecution witnesses would subject them to intimidation, the propriety of other identification procedures used by the prosecution, and the degree of doubt concerning the identification. United States v. Ravich (2d Cir. 1970), 421 F.2d 1196.

       Although it was stipulated at trial that Torres was 52 years old, the presentencing report and Torres’ counsel indicated at the sentencing hearing that Torres was 51 years old.