author: GOLDENHERSH, J.

text:
    Brian A. Kronenberger, a Minor, by Cleo Kronenberger, His Mother and Next Friend, Plaintiff-Appellant, v. Mildred I. Husky and William Husky, d/b/a West Side Produce, Defendants-Appellees.
    Gen. No. 66-2.
    Fifth District.
    January 31, 1967.

      Cohn, Cohn & Korein, of East St. Louis (Sandor Korein, of counsel), for appellant.
    Wagner, Conner, Ferguson, Bertrand & Baker, of East St. Louis (Bernard H. Bertrand, of counsel), for appellees.
   GOLDENHERSH, J.

Plaintiff, Brian A. Kronenberger, a minor, suing by his mother and next friend, appeals from the judgment of the Circuit Court of St. Clair County, entered on a jury verdict finding for the defendants, in plaintiff’s action for damages for personal injuries.

On July 3, 1962, plaintiff, then 10 years of age, was riding a bicycle in a southerly direction on South Fifteenth Street in Belleville. South Fifteenth Street is a blacktop surfaced street. Route 13, also known as South Belt, or South Belt Line, intersects South Fifteenth Street. At the intersection, there are stop signs posted for north and south traffic on South Fifteenth Street. The weather was good and the street surfaces were dry. Plaintiff was accompanied by his brother, then 12 years of age, and another boy 16 years of age. The boys had ridden a distance of about two blocks on South Fifteenth Street. They were riding on the east side of South Fifteenth Street, and plaintiff was about 25 feet behind his brother. Plaintiff’s brother reached the intersection, and crossed South Belt, without stopping. Plaintiff reached the intersection, slowed a little, and proceeded across South Belt.

Defendant, Mildred I. Husky, had turned onto South Belt at Seventeenth Street, and had driven two blocks to the east, toward South Fifteenth Street. She saw no other traffic, either vehicular or bicycles, in the two blocks. She saw plaintiff for the first time as she was “right at the intersection,” and “he was right at the South Belt Line.” After being struck, plaintiff was dragged on the left front side of defendant’s automobile until the car was stopped, and ended up in front of the car.

Defendant’s automobile came to rest against a guard post east of South Fifteenth Street, and on the south side of South Belt, knocking the post over. Skid marks starting at the center of the intersection measured 72 feet, 8 inches to the post. The bicycle came to rest 43 feet 6 inches in front of the car, and plaintiff ended up halfway between the car and the bicycle. Defendant did not sound her horn, and did not see plaintiff’s brother.

Plaintiff was in the 4th grade and had ridden a bicycle for about 2 years, mostly around a playground near his home. He thought stop signs at intersections were only for cars, and did not know that bicyclists and pedestrians were supposed to stop at stop signs.

Plaintiff contends that the court erred in permitting improper argument during defendants’ counsel’s closing argument. Plaintiff argues that the defendants’ attorney inferred that defendants were not insured, and relying upon Pomrenke v. Betzelberger, 41 Ill App2d 307, 190 NE2d 522, and Wise v. Hayunga, 30 Ill App2d 324, 174 NE2d 399, contends that the court erred in failing to strike the argument, or in the alternative, permit plaintiff’s counsel to reply to it. We have examined defendants’ closing argument, and in the context in which the statement was made, hold that there was no error in the court’s ruling.

Plaintiff argues further that the court erred in permitting counsel for defendants, in closing argument, to ask the jury to place itself in the position in which defendant, Mildred Husky, found herself at the time of the occurrence. We have examined the argument and the authorities cited by plaintiff, (see Copeland v. Johnson, 63 Ill App2d 361, 211 NE2d 387) and conclude that counsel here did not go so far in the argument as did counsel in Copeland, and in considering the statement made, in context with the remainder of that portion of defense counsel’s argument, hold that the court’s ruling was not erroneous.

Plaintiff contends that the court erred in giving defendants’ instruction 15. The instruction, marked IPI 70.03 — modified, reads as follows:

“At the time of the occurrence in question there was in force in the State of Illinois statutes governing the operation of bicycles as follows:
“ (a) Every person riding a bicycle upon a roadway shall be subject to the provisions of this Act (Uniform Act regulating traffic on Highways) applicable to the driver of a vehicle, except those provisions which by their nature can have no application.
“(b) No driver of a vehicle . . . shall disobey the instructions of any official traffic control device placed in accordance with the provisions of this Act, unless at the time otherwise directed by a police officer.
“(c). ■ Every driver of a vehicle approaching a stop sign shall stop before entering the crosswalk on the near side of the intersection or in the event there is no crosswalk shall stop at a clearly marked stop line, but, if none, then at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting highway before entering the intersection except when directed to proceed by a police officer or traffic control signal.
“(d) The driver of a vehicle shall stop as required by the previous quoted section of the statute at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard but said driver having so yielded may proceed at such time as a safe interval occurs.
“If you decide that the plaintiff, Brian Kronenberger, violated the provisions of the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not he was contributorily negligent before and at the time of the occurrence.”

Paragraphs (a), (b), (c) and (d) of the instruction purport to quote, or paraphrase, sections 121, 128, 183 (c) and 167 (a) of Chapter 951^, Ill Rev Stats 1961.

In the conference on instructions, plaintiff objected to the instruction on the grounds that it did not follow the IPI form, was confusing, prejudicial to plaintiff, and unduly accentuated the application of the statutes to riders of bicycles, and would create the impression that the statutory sections were applicable only to bicycle riders. In his brief, plaintiff argues that giving the instruction was prejudicial error for all the above cited reasons, and for the further reason that because plaintiff, at the time of the occurrence, was only 10 years of age, none of the statutes applied to him, and even if proper in form, the instruction should not have been given.

The .record reflects that plaintiff tendered, and the court gave, an instruction in the form of IPI 10.05, and an instruction in the language of IPI 10.06.

We aré, therefore, confronted with a claim of error on a ground not raised specifically either in the conference on instructions, or in the post-trial motion. The Supreme Court, in Muscarello v. Peterson, 20 Ill2d 548, 170 NE2d 564, at page 555, said, “The court has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented on its behalf.” We shall, therefore, examine the instruction in the light of the objections made thereto, both in the trial court, and on appeal.

The Notes on Use of IPI 10.06 state:

“This instruction cannot be used if the child is under the age of ten. Maskaliunas v. Chicago & W. I. R. Co., 318 Ill 142, 147, 149 NE 23, 25 (1925).”

The Maskaliunas case grew out of injuries suffered by a child 7 years and 10 months of age. The negligence charged in the complaint was the failure of the defendant to comply with an ordinance requiring it to maintain a fence along its right-of-way. The defendant contended that the proximate cause of the minor plaintiff’s injury was his violation of an ordinance which made it a misdemeanor to climb upon a railroad car without permission. The court, in disposing of this contention said at page 147: “Appellee being under ten years of age, the statute making it a misdemeanor to climb upon a railroad car without permission has no application to him. Notwithstanding this statute is general in its terms, it must be construed in connection with the statute declaring a child under the age of ten years doli incapax. (McDonald v. City of Spring Valley, 285 Ill 52.)”

In McDonald v. City of Spring Valley, 285 Ill 52, 120 NE 476, cited in the Maskaliunas case, the issue presented was the applicability of a statute requiring notice of injury to be given the defendant city within 6 months of its occurrence. The court, holding the statute inapplicable, at page 55, said: “At common law an infant within seven years of age could not be convicted on a criminal charge, as he was conclusively presumed not to be capable of committing a crime, and between the ages of seven and fourteen he was still presumed to be incapable, but between those ages this presumption might be overcome by proof. These rules of law are based upon the well known fact of the incapacity of children of tender years, and they are not held to the same accountability as are adults. The recognition, by the law, of the status of infants, and of their exemption up to a certain age from liability under the law, is so well known that it must be presumed that the legislature, in enacting such a statute as the one under consideration, did not intend by the general language used to include within its provisions a class of persons which the law has universally recognized to be utterly devoid of responsibility.”

In The People v. Lang, 402 Ill 170, 83 NE2d 688, the Supreme Court said, at page 174: “It is first urged on the part of the defendant that there was insufficient proof of capacity on the part of the defendant to sustain a conviction. Before the rule of law was changed in Illinois, under the common law an infant within the age of seven years was incapable of committing a crime; and between the ages of seven and fourteen an infant was presumed to be incapable of crime; and after the age of fourteen had been attained the presumption was that an infant was capable of committing a crime and was responsible for his criminal acts as an adult. (43 CJS, 216.) The rule has now been changed in Illinois by statute which provides, ‘An infant under the age of ten years shall not be found guilty of any crime or misdemeanor’. (Ill Rev Stats 1947, c 38, par 591.)”

The Criminal Code of 1961 (c 38, Ill Rev Stats 1961) effective January 1, 1962, contains the following provisions :

6-1 “No person shall be convicted of any offense unless he had attained his 13th birthday at the time the offense was committed.”
2-12 “ ‘Offense’ means a violation of any penal statute of this State.”

Chapter 95%, sec 234, Ill Rev Stats 1961, provides:

“It is a misdemeanor for any person to violate any of the provisions of this Act (section 98 et seq. of ch 95%) unless such violation is by this Act or other law of this State declared to be a felony.”

Plaintiff argues that Glassman v. Keller, 291 Ill App 262, 9 NE2d 589, is authority for the proposition that an instruction in the language of a statute or ordinance, the violation of which is a misdemeanor, may not be given in the case of a plaintiff below the age of criminal responsibility fixed by the Criminal Code. We do not agree that Classman so holds; we interpret the opinion as holding that the trial court correctly refused to give the proffered instruction because it failed to advise the jury that in determining whether the plaintiff, in violating the ordinance, was guilty of contributory negligence, it must consider his age, capacity, intelligence and experience. Under Glassman, giving the instruction to which plaintiff objects would not be error, if the court also gave an instruction in the form of IPI 10.06. For reasons hereinafter set forth, we disagree with the holding in Glassman, and conclude that the giving of IPI 10.06 does not cure the error of giving the instruction based on the statute.

In the cases above cited, the rationale of holding statutes inapplicable to a minor under the age of 10, was that the common law rule was changed by legislative enactment. On the effective date of Supreme Court Rule 25-1, ordering the use of Illinois Pattern Instructions, (February 1, 1961) section 591 of chapter 38 was in force and effect, and the notes on use of IPI 10.06 make it clear that instructions regarding a statutory violation should not be given where the child was under the statutory age. Applying the reasoning of Maskaliunas and the other cases cited herein, it follows that since the effective date of the Criminal Code of 1961, an instruction of this kind should not be given if the child is under the age of 13. We must presume that the General Assembly, when it enacted Section 6-1 of the Criminal Code of 1961, was aware of the Supreme Court’s decisions in Maskaliunas and McDonald. Haymes v. Catholic Bishop of Chicago, 33 Ill2d 425, 211 NE2d 690. We hold, therefore, that the giving of defendants’ instruction No. 15 was reversible error.

Defendants argue that the fact that a child under 13 cannot be convicted of any offense does not preclude the giving of this type of instruction in the case of a child under the age of 13, and cite in support of their contention the cases of Betzold v. Erickson, 35 Ill App2d 203, 182 NE2d 342; Dawson v. Hoffmann, 43 Ill App2d 17, 192 NE2d 695; Ryan v. C. & D. Motor Delivery Co., 38 Ill App2d 18, 186 NE2d 156. A similar contention was considered and rejected by the Appellate Court in Conway v. Tamborini, 68 Ill App2d 190, 215 NE2d 808, and we agree with the reasoning of the court in that opinion.

Since we hold that the giving of the instruction was error, we do not discuss plaintiff’s other contentions with regard thereto.

For the reasons herein set forth, the judgment of the Circuit Court of St. Clair County is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded for new trial.

MORAN and EBERSPACHER, JJ., concur.

       A minor is not held to the same standard of conduct as an adult. When I use the words “ordinary care” with respect to the plaintiff, I mean that degree of care which a reasonably careful child of the age, mental capacity and experience of the plaintiff would use under circumstances similar to those shown by the evidence. The law does not say how such a child should act under those circumstances. That is for you to decide.

       The rule I have just stated also applies when a child is charged with having violated a statute.


source: Caselaw Access Project

license: Public Domain

text:
    Elena Kresteff, Plaintiff-Appellant, v. Assen Kresteff, Defendant-Appellee.
    Gen. No. 66-47.
    Fifth District.
    February 4, 1967.

      Dick H. Mudge, Jr., of Edwardsville, for appellant.
    Emerson Baetz, of Alton, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Madison County, dismissing her cause of action.

This action was commenced by filing a pleading headed “Petition for Alimony,” wherein plaintiff alleges that the parties are bona fide residents of Illinois, they were married in New Brunswick, Canada in 1950, defendant deserted plaintiff in 1953, no children were born of the marriage, plaintiff is in poor health and unable to support herself, defendant is a man of means and steadily employed, and prays that the court enter an order that defendant pay plaintiff the sum of $50 per week for her support and maintenance. Personal service was had on defendant in Madison County.

Defendant answered, setting up the defense that a decree entered on January 5, 1959, by the Second Judicial District Court of Nevada was a final adjudication of the rights of the parties growing out of the marriage, and under the provisions of Article IV, section 1 of the Constitution of the United States, the courts of Illinois must give to the Nevada decree the effect of such adjudication. The circuit court dismissed the action, and this appeal followed.

The record shows that defendant filed suit for divorce in Nevada, plaintiff entered her appearance, filed an answer, and thereafter moved for allowance of expenses to enable her to travel to Nevada and defend the cause in person. The Nevada court ordered the defendant (plaintiff there) to pay to the plaintiff her necessary travel and subsistence expenses, and ordered payment of a fee to her attorneys.

The decree entered by the Nevada court recites that the cause was set for trial, defendant (plaintiff there) appeared in person, and no one appeared for plaintiff (defendant there). In the decree the court finds that it has jurisdiction, finds that defendant was entitled to a divorce, and granted him a divorce. There is no mention of alimony in the decree.

Plaintiff contends that under the provisions of ch 40, sec 19, Ill Rev Stat 1965, the circuit court was empowered to modify the decree and make provision for the payment of alimony, and refusal so to do confers upon the Nevada decree “more authority, conclusiveness, finality and dignity,” than is accorded the decrees of the courts of Illinois.

Defendant contends that under Nevada Law, the decree, since it makes no provision for alimony, and does not reserve jurisdiction of the question of alimony, bars all future claims for alimony, and its finality must be given full faith and credit by the courts of Illinois.

An examination of the Nevada cases leaves no doubt that the rendition of a decree of divorce containing neither a provision for alimony, nor a reservation of jurisdiction for the purpose of later action pertinent thereto, is the equivalent of a denial of alimony, and except during a period of 6 months after the date of its entry, the decree is not subject to modification. Sweeney v. Sweeney, 42 Nev 431, 179 P 638; Schneider v. Second Judicial Dist. Ct. in and for Washoe County (Nev), 176 P2d 797; Lynn v. Lynn, 302 NY 193, 97 NE2d 748. (See annotation 28 ALR2d 1346.)

The finality and effect of the Nevada decree are determined by the law of that State, and the constitutional requirement that it be given full faith and credit is met by clothing it with the same finality and effectiveness in the courts of Illinois as it enjoys in the courts of the State in which it was rendered and entered. Morris v. Jones, 329 US 545, 67 S Ct 451, 91 L Ed 488; Jahnke v. Selle, 368 Ill 268, 13 NE2d 980. The fact that the statute permits an award of alimony subsequent to the entry of a similar decree in Illinois, does not affect its status. Since the Nevada decree was not subject to modification in that State, it is a final adjudication of the denial of plaintiff’s right to alimony, and precludes an award of alimony by the courts of this State.

We have examined the cases cited by plaintiff and find them clearly distinguishable.

Halvey v. Halvey, 330 US 610, 67 S Ct 903, cited as an authority for her contention that the courts of Illinois have jurisdiction to award the relief sought, does not aid plaintiff, because the Supreme Court found that the New York court did no more than the Florida courts could have done, and the Florida judgment was thus given full faith and credit.

In Schwarz v. Schwarz, 27 Ill2d 140, 188 NE2d 673, the husband obtained the divorce, ex parte, and the Nevada court had no jurisdiction over the wife.

In Light v. Light, 12 Ill2d 502, 147 NE2d 34, the plaintiff sought to enforce, not modify, the foreign decree.

For the reasons set forth, the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.

       “. . . Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support, it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just, but no such order subsequent to the decree may be made in any case in which the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony or where the court by its decree has denied alimony. . .


author: PER CURIAM:

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gary V. Lillie, Defendant-Appellant.
    Gen. No. 66—31.
    Fifth District.
    February 10, 1967.

      Gary V. Lillie, pro se, appellant.
    No brief filed for appellee.
   PER CURIAM:

In a prior appeal, this court affirmed the judgment of the Circuit Court of Saline County finding the defendant guilty of violation of the conditions of his probation, and remanded the cause for further proceedings. In compliance with the directions of this court, the circuit court vacated the sentence imposed on the defendant, conducted a hearing in aggravation and mitigation, and upon conclusion of the hearing, imposed a sentence of not less than 12 years nor more than 18 years. This appeal followed.

Defendant, appearing pro se, argues that the sentence imposed is far more severe than is warranted by the record, and contends that this court should reduce it to the time already served.

It is unfortunate that the State’s Attorney has not seen fit to file a brief in this cause. The failure of a State’s Attorney to file a brief places an undue burden on the reviewing court, in that it makes it necessary to review the record and the applicable law without the benefit of his assistance. In an appeal in a civil matter, we might invoke the rule that failure on the part of an appellee to file a brief warrants reversal of the judgment without a review on the merits, but obviously this is not the solution to the problem that arises in a case where an appellant has been convicted of a felony, since society, unlike a litigant represented by counsel of his selection, should not suffer the penalty of setting at large a convicted felon, because a public official has failed to perform a service to which The People are entitled.

The evidence adduced at the hearing in aggravation and mitigation shows that on January 16, 1962, in the Circuit Court of Massac County, defendant, then 28 years of age, pleaded guilty to the offense of burglary and larceny, and was sentenced to the penitentiary for a term of not less than 1 nor more than 3 years.

Edgar Bramer testified that on January 12, 1962, he was called to the office of the State’s Attorney of Massac County, that defendant, defendant’s father and an attorney were there, and restitution was made of property previously taken in a burglary at Bramer’s home.

William Boyd testified that his home was burglarized twice in 1961, and an attorney, representing defendant, made restitution of the money, and a television set, stolen on those occasions.

Otis Baker testified that he was paid $170 in restitution of money taken in a burglary at his home on November 28,1961.

James Gowins testified that on October 28, 1961, he, in the company of defendant and two other men, burglarized a house in Metropolis.

James Williams, a police officer at Cairo, testified that on September 24, 1964, he arrested defendant, and two other men, on a charge of disorderly conduct. The record of the disposition of the charge is not in evidence, but the witness thought defendant was fined $34.

George Adams testified that on December 29, 1964, he was a police officer at Brookport, that he charged defendant with reckless driving but did not know what disposition was made of the charge.

A girl, under the age of 16, testified that on January 1, 1965, she had sexual intercourse with defendant in a motel at Metropolis.

The chronology of events relative to imposing sentence on this defendant, is that in April of 1964, after a plea of guilty to the charge of burglary, the State’s Attorney joined with defense counsel in recommending that he be admitted to probation. Approximately one year later, probation was revoked, and a sentence of not less than 15 nor more than 20 years was imposed. After a hearing in aggravation and mitigation, held in accordance with the remanding order of this court, during which hearing the above testimony was adduced, the court imposed a sentence of not less than 12 nor more than 18 years.

This court is cognizant of the Supreme Court’s admonition in People v. Taylor, 33 Ill2d 417, 211 NE2d 673, that the power granted reviewing courts to reduce sentences is to be applied with considerable caution and circumspection. We are, however, also aware of the constitutional provision that all penalties shall be proportioned to the nature of the offense (Article II, Section 11, Constitution of Illinois), and what purposes, hopefully, are to be achieved by the imposition of punishment for a criminal offense. People v. Brown, 60 Ill App2d 447, 208 NE2d 629; People v. Evrard, 55 Ill App2d 270, 204 NE2d 777.

“It is generally true that rehabilitation is best achieved under a system which gives great discretion to the parole authorities.” People v. Brown (supra).

It is also true that the courts, by exercise of the power to fix minimum and maximum punishments within the limits provided by the Criminal Code, share with the parole authorities the responsibility for appropriate and effective implementation of the penal statutes.

In People v. Taylor (supra), the Supreme Court stated that the trial judge, ordinarily, has a superior opportunity to make a sound determination concerning punishment than does the reviewing court. Neither tribunal, however, is possessed of prescience, and since the judicial function terminates upon the judgment’s becoming final, the Parole and Pardon Board is the only governmental agency in a position to observe and determine to what extent incarceration has achieved rehabilitation.

The purposes sought to be achieved by the imposition of sentence are adequate punishment for the offense committed, the safeguarding of society from further offenses, and the rehabilitation of the offender into a useful member of society. People v. Brown (supra), People v. Evrard (supra). Adequacy of the punishment should determine the minimum sentence, with the maximum dependent upon the court’s divination as to the length of time required to achieve rehabilitation.

In our opinion, the record does not warrant imposition of a minimum sentence of 12 years. The only violations of probation shown by the evidence, with one exception, are misdemeanors. With regard to the alleged sexual offense, if the defendant is guilty, punishment should be imposed after conviction on that charge, and not by indirection, in this proceeding. Nor should punishment be here imposed for offenses allegedly committed prior to defendant’s being sentenced in 1962, and prior to his being admitted to probation. These past offenses are relevant to the matter of rehabilitation, and are properly to be considered by the court in fixing the maximum penalty, but not the minimum.

Advances in the fields of psychology, psychiatry and sociology have contributed to a greater understanding of the motives underlying the commission of criminal offenses, and the techniques and methods which are of value in the rehabilitation of offenders. The hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation programs provided in modern penal institutions. Excessive minimum sentences, imposed by the courts, may defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished.

Inherent in the parole system is the risk of recidivism, but an enlightened society has long since rejected the medieval concept of punishment which imposed the death penalty for crimes now categorized as petty offenses. Society’s safeguard against recidivism is the power of the parole authorities to terminate the conditional release and return the offender to prison. A lengthy maximum sentence is not so likely to impede the operation of the system because the prisoner, although subject to parole supervision, is not mandatorily confined.

Based on the record before us, we conclude that a minimum sentence of 5 years is adequate and will better achieve the purpose for which the sentence is imposed. Since as above stated, we cannot predict with accuracy the progress of this defendant’s rehabilitation, we do not modify the maximum sentence imposed.

As stated by the Appellate Court in People v. Haynes, 73 Ill App2d 85, 218 NE2d 489, “Society now is entitled to some protection without depriving the defendant of a reasonable opportunity to rehabilitate and return to society if he cares so to do.”

For the reasons herein set forth, the judgment and sentence of the Circuit Court of Saline County are modified to provide that the sentence imposed on defendant be confinement in the penitentiary for a term of not less than 5 nor more than 18 years, and as so modified, the judgment is affirmed.

Judgment modified, and as modified, affirmed.

       People v. Mitchell and Lillie, 67 Ill App2d 124, 214 NE2d 129.


author: EBERSPACHER, J.

text:
    Southern Illinois Power Cooperative, Appellant, v. Allie Lowery, et al., Appellees.
    Gen. No. 66—36.
    Fifth District.
    February 13, 1967.

      Jack Williamson, of Vienna, for appellant.
    Louis G. Horman, of Metropolis, for appellees.
   EBERSPACHER, J.

This appeal has been brought by Southern Illinois Power Cooperative from an order of the trial court dismissing its complaint to set aside a tax deed under the provisions of section 72 of the Civil Practice Act and for partition of the land involved. Plaintiff contends that the court erred in dismissing plaintiff’s complaint because, (1) the evidence showed that the affidavit of Notice for Issuance of the Tax Deed was false and fraudulent and (2) in the alternative that the published notice was fatally defective for the reason it was published only once when the mandatory provisions of the law require it to be published three times.

Thomas E. Lowery died intestate seized of the North Half of the Southwest Quarter of Section 18, Township 11 South, Range 3 East, Johnson County. Thomas E. Lowery left as his only heirs at law his widow, Allie Lowery, and Donald E. Lowery, Joe R. Stevens and Ivah Hodge. The land was sold for the nonpayment of taxes in 1957 and D. W. Chapman purchased for the taxes due and received a tax deed to the premises on December 14, 1959. On the same day that D. W. Chapman received the tax deed, he conveyed the land described therein to J. Howard Cates and on the same day, J. Howard Cates conveyed the land to the defendants, Donald E. Lowery and Joe R. Stevens, two of Thomas E. Lowery’s heirs.

The plaintiff herein acquired the interest, if any, of Ivah Hodge in and to the West Half of the North Half of the Southwest Quarter of Section 18, Township 11 South, Range 3 East, by deed dated June 20, 1961. The plaintiff filed its complaint to set aside the tax deed and for partition on March 11,1964.

The evidence shows that D. W. Chapman, at the time of filing the petition for issuance of the tax deed, also filed an affidavit stating that Thomas E. Lowery was dead, that no person was in possession of said premises, that Mrs. Thomas E. Lowery or other persons interested in said lands could not be found in Johnson County. Diligent inquiry as to these facts was made of a Mr. Parks. Certificate of publication shows that Notice of filing Petition for Order Directing Issuance of Tax Deed was published one time on August 13,1959, in The Vienna Times. This is the only publication shown.

Section 263 of the Revenue Act (Ill Rev Stats 1959, c 120, § 744) stated that no holder of the certificate of purchase shall be entitled to a deed unless he had, not less than three months prior to the date of expiration of the redemption period, served notice upon the owners of such real estate advising them when he purchased the land, in whose name it was last taxed, the description of the real estate involved, what taxes were foreclosed, and when the time for redemption would expire. If such owners could not upon diligent inquiry be found in the county, such notice could be sent by registered mail and also published three times in a local newspaper not more than five months nor less than three months before the time of redemption expires. An affidavit is made under section 263 for the purpose of giving notice to owners or parties interested, who cannot be found or are unknown, by publication. In the instant case the affidavit was made but there was only one publication as evidenced by the certificate of publication. Appellants claim that the notice was fatally defective for this reason.

Such notice given under section 263 of the Revenue Act (Ill Rev Stats 1959, c 120, § 744) need not include notice of the fact that a petition has been filed on which the petitioner intended to make application for an order on the petition that a tax deed issue if the property is not redeemed. Here the published notice included notice that such petition had been filed and that such petition would be presented to the court on December 10, 1959, and that at that time an order would be applied for directing the issuance of a tax deed. Such a situation was covered by section 266 of the Revenue Act (Ill Rev Stats 1959, c 120, § 747), which provided:

“The purchaser or his assignee may file a petition in the county court in the same proceeding wherein the judgment of sale was entered upon which the sale was had, praying that the court direct the county clerk to issue a tax deed if the real estate shall not be redeemed from the sale. Such petition shall be accompanied by a filing fee of $15.00. Notice of the fact of filing the petition and the date on which the petitioner intends to make application for an order on the petition that a deed issue if the real estate shall not be redeemed from the sale shall be given to occupants, owners and persons interested in the real estate, in the same manner as provided in Section 263, except that only one publication shall be required. The notice to occupants and the notice by publication shall be given not less than three months prior to the date fixed for making application that a deed issue. The purchaser or his assignee may, if he desires, insert in the notice or notices required by Section 263 the fact of filing the petition for a tax deed and the date on which he intends to apply in the county court for an order for a deed if the real estate shall not be redeemed from the sale, in which case the notice provided by this section shall not be required.”

Section 266 of the Revenue Act is designed to render tax titles incontestable except by direct attack unless circumstances warrant application of section 72 of the Civil Practice Act, or unless the order directing the issuance of deed is void, and the order is rendered void, not by reason of mere error or impropriety, but by lack of jurisdiction of the issuing court over either the parties or the subject matter, and jurisdiction once acquired in a tax foreclosure action continues through the entire proceeding, including the order for deed. Farlow v. Oliver, 29 Ill2d 493,194 NE2d 262.

In Farlow v. Oliver, supra, it was held that compliance with section 263 of the Revenue Act, enacted pursuant to the constitutional mandate that the legislature provide by law for reasonable notice in connection with the sale of realty for nonpayment of taxes, is essential for the validity of a tax deed, but the notices specified in section 266 and 266a of the Act are not an absolute condition precedent to issuance of a tax deed, but merely outline a statutory procedure to be followed.

The purpose of section 263, and its mandatory requirement of notice, was to give parties in interest notice that the taxes had been sold, and when the time of redemption would expire; it provided:

“. . . In such notices the purchaser, or his assignee, shall state when he purchased the real estate, in whose name last taxes, the description of the real estate he has purchased; what taxes or special assessments were included in the judgment or decree for which the real estate was sold, and when the time of redemption will expire ...”

It did not purport to require notice that the purchaser at the tax sale would petition the court for the issuance of a tax deed “which shall be incontestable except by appeal from the order of the county court directing the county clerk to issue the tax deed” as is provided if the purchaser or his assignee saw fit to proceed under section 266 and give the notice provided under that section that a petition for a tax deed had been filed and the date petitioner would ask for a tax deed if the taxes were not redeemed. Section 266 also gave the petitioner the right to combine the information its notice required, with the information required in the notice given under section 263, and if he elected to do so, then he was not required to publish the one time required by section 266 — because there would be 3 notices of both the information required by section 263 and section 266. If the purchaser saw fit to combine the information in one notice, and publish 3 times as required by section 263, his deed would not be subject to collateral attack unless circumstances warranted application of section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72). Here the petitioner elected to combine his notice, but only published one time failing to comply with section 263.

In People v. O’Keefe, 18 Ill2d 386, 164 NE2d 5, the court said:

“Although a purchaser at a tax foreclosure sale must comply with Section 263 as to the giving of notice, unlike the procedure which formerly prevailed as to annual tax sales, it is unnecessary that he preserve the evidence of such compliance by the filing of affidavits or otherwise, but it is for the court having jurisdiction of the foreclosure case to examine the proof of such compliance and then to enter an order thereon. . . . Thus statutory cornpliance is recorded, not by affidavits as to scope of inquiry and other related matters, but by finding of the court which originally approved the foreclosure decree and is therefore in the best position to know the prior history of the case. . . . Upon a collateral attack the finding will be regarded as conclusive and binding upon all parties to the record and their privies.”

In Urban v. Lois, Inc., 29 Ill2d 542, 194 NE2d 294, the court said that while section 263 of the Revenue Act regarding the giving of notices must be complied with, a finding that such notices were duly given cannot be disputed in a collateral proceeding.

In the instant case, the trial court in entering its order directing the issuance of a tax deed specifically found that all notices required by law have been given. Since this was a judicial determination and cannot be disputed in a collateral proceeding, we must hold that a factual question of whether or not all notices as required by law have been given cannot be relitigated, since the trial court passed on this issue, in the absence of fraud. The most recent opinion so holding is Dahlke v. Hawthorne, Lane & Co., 36 Ill2d 241, 222 NE2d 465, 467 (1966), in which our Supreme Court said:

“Unlike the procedure which formerly prevailed, wherein the determination of statutory prerequisites for a tax deed was largely an administrative matter, it is now for the court, prior to ordering the issuance of such a deed, to judicially determine whether the notice and other requirements have been met. And when a finding of compliance has been entered, it will thereafter be presumed that satisfactory proof of this fact was presented to the court even though such evidence is not preserved in the record. People v. O’Keefe, 18 Ill2d 386,164 NE2d 5.
“In the present case the trial court expressly found in its order for deed that all notices required by law had been given and, no direct appeal having been taken by the record owners, that determination is now conclusive unless vitiated by fraud.”

There could not have been any fraud perpetrated upon the court as to the notice given because the publisher’s certificate, showing only one publication, was made a part of the record. We must point out that since section 266 of the Revenue Act is designed to render tax titles incontestable except by direct attack unless circumstances warrant application of section 72 of the Civil Practice Act, it is encumbent upon the trial court to closely scrutinize the record to determine if there has been statutory compliance. The trial court should diligently examine the proof of such compliance and record this fact on its findings, thus making sure that the rights of all persons, interested in real estate which is sold for taxes, have been protected. While the court apparently erroneously found statutory compliance, when the record showed noncompliance, this plaintiff cannot be awarded the relief sought on that basis in this proceeding, in the absence of a showing of fraud. Dahlke v. Hawthorne, Lane & Co., supra, and cases cited therein.

We now come to the question as to the allegation of fraud in the affidavit of Notice for Issuance of the Tax Deed. While section 72 provides that a petition filed thereunder must be filed in the same proceeding in which the order was entered, and must be filed not later than two years after the entry of the order attacked, it would appear that a proceeding filed thereafter would be barred, were it not for subsection 7 of section 72, which provides:

“Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.”

In Shockley v. Good, 13 Ill2d 298, 148 NE2d 763, the court said that where an affidavit for a tax deed alleges due inquiry for the identity of the true owners, the inquiry must be such as a diligent man, intent upon ascertaining a fact, would usually and ordinarily make, and it must be made in good faith to ascertain the truth and be as full as the circumstances of the particular situation will permit, and it may not be limited to the county in which the land is located. Fraud implies a wrongful intent — an act calculated to deceive. Dalke v. Hawthorne, Lane & Co., supra.

The evidence shows that D. W. Chapman, the purchaser at the tax sale and also the affiant on the petition for tax deed, was deceased at the time of this hearing under section 72 of the Civil Practice Act. While there is evidence that Chapman had known each of the heirs of Thomas E. Lowery, there is not positive evidence that he knew Ivah Hodge resided in Johnson County on a farm adjoining the land here in question at the time of making the affidavit. Nor can it be concluded from the evidence that he did not act in good faith; his recovery, at the most, from the purchasers, two of the four persons who could have redeemed, was the “tax deal,” interest and $10. Where it is alleged that a tax deed was procured by fraud, the burden of proving such fraud is upon the party who alleges it. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294; People v. Doe, 50 Ill App2d 458, 200 NE2d 370.

Chapman’s affidavit that he had made inquiry of a party living in the neighborhood of the land, and from such inquiry determined that Mrs. Thomas E. Lowery “or other person interested in the said land” could not be found in the county, was a part of the record before the court. There is no proof as to what other evidence was before the court, nor is there any evidence to deny that Chapman did not make such inquiry of Mr. Parks. Plaintiff would have us infer from the evidence in this proceeding that Chapman knew or should have known that Ivah Hodge could be found in Johnson County without presenting clear and convincing evidence of Chapman’s knowledge of her residence. The failure to discover a particular fact does not, in and of itself, indicate a lack of diligent inquiry, and neither is it a conclusive indication of fraud. Dahlke v. Hawthorne, Lane & Co., supra. It must be presumed, in the absence of proof to the contrary, that the court properly performed its judicial function and that it considered all that was before it at the time it entered the order for the tax deed to issue, and found that all notices required by law had been given, and that the petitioner had complied with all the provisions of law entitling him to a deed.

In plaintiff’s complaint, no facts are alleged to show that Ivah Hodge, its alleged predecessor in title, was free of negligence in failing to appear or make timely objection to the issuance of the tax deed. Nor does plaintiff allege that Ivah Hodge was in any way prejudiced by the failure to give proper notice. See People ex rel. Wright v. Doe, supra, in which petitioner had knowledge of the proceeding during the redemption period. There is undisputed evidence that Ivah Hodge was informed by Donald Lowery, her brother, that the property was going to be sold for taxes, and that she declined to “go her part” because of a lack of funds, but told Donald “you go ahead and go my part and when everything is settled up, charge me for the interest that you’ve put in it and if there’s anything left, why you give it to me.” As we interpret the testimony, this conversation took place only a short time before the tax deed was issued. No tender of “her part” was alleged or shown by the evidence. This plaintiff took a deed from Ivah Hodge on June 20, 1961, more than 18 months after the tax deed had been issued and it, as well as subsequent deeds, had been recorded; plaintiff must be charged with knowledge of the entire proceedings, and the record title as well as the failure of Ivah Hodge to appear and .make timely objection to the issuance of the tax deed.

Furthermore, this plaintiff waited almost 8 years from the time it took its deed from Ivah Hodge to bring to the court’s attention its alleged error in ordering to be issued, a tax deed, which plaintiff now contends is void. In Brockmeyer v. Duncan, supra, our Supreme Court, in a case involving a petition under section 72 of the Civil Practice Act, at 18 Ill2d 505, 165 NE2d 296, pointed out:

“Assuming that the present petition alleges facts which would otherwise justify the granting or relief, the absence of any excuse for not asserting them in apt time must preclude it. The rule is well established that a person may not avail himself of the present remedy unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Guth v. People, 402 Ill 286; Greene v. People, 402 Ill 224. Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence. McCord v. Briggs & Turivas, 338 Ill 158; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill 516.”

As a purchaser with notice, plaintiff is in no better position than would Ivah Hodge have been had she sought relief by a section 72 petition at such late date.

We therefore affirm the order of the Circuit Court of Johnson County dismissing the complaint.

Order affirmed.

MORAN and GOLDENHERSH, JJ., concur.


author: MORAN, P. J.

text:
    Godfrey Township Utility Board, Plaintiff-Appellant, v. Maurice Hand, et al., Springman Realty Co., a Corporation, John Olmstead, et al., Alton Savings & Loan Association, a Corporation, Al Gregor, et al., Luken Realty, a Corporation, M. Wallace, et al., DefendantsAppellees.
    Gen. No. 66-107.
    Fifth District.
    February 14, 1967.
    Thomas & Mottaz, of Alton, for appellant.
    Emerson Baetz, of Alton, for appellees.
   MORAN, P. J.

This is an appeal from the Circuit Court of Madison County, Blinois, from a judgment dismissing an action brought by the Godfrey Township Utility Board to enjoin the defendants from using any water closet or privy, connected with or used in the buildings located on the premises owned by the defendants, which are not connected into the plaintiff’s sewerage system. The trial court found that the plaintiff did not have the authority to sue in its own name and dismissed the complaint.

Ill Rev Stats, c 139, § 160.49, provides that, if a township utility board is created, it “shall exercise all of the powers authorized and provided for by this Act in lieu of the Board of Town Auditors. . . .” C 139, § 160.-51, provides that:

The authority conferred upon a township under the provisions of this Act, except as otherwise provided in this Act, shall be exercised by the Board of Town Auditors of any such township in the name of and for and on behalf of any such township. (Emphasis added.)

It seems clear from these provisions that the Godfrey Township Utility Board has no authority to sue in its own name; therefore the action of the trial court should be affirmed.

The plaintiff argues that the trial court should have allowed the plaintiff to amend its complaint. However, there is no indication in the record that the plaintiff in any way tendered an amendment or requested permission to amend. Under these circumstances, the plaintiff should not now be heard to complain.

Since the trial court dismissed the complaint only on the ground that the plaintiff could not sue in its own name, this court will not consider other questions raised in the briefs of the parties.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: TRAPP, J.

text:
    Walter Sullivan, Plaintiff-Appellee, v. Carol Sullivan, Defendant-Appellant.
    Gen. No. 10,753.
    Fourth District.
    February 2, 1967.

      Broverman & Broverman, of Taylorville, and Bernard C. Mayberry, of Lincoln, for appellant.
    Edwin C. Mills, of Lincoln, for appellee.
   TRAPP, J.

The trial court’s decree awarded a divorce to the plaintiff husband upon the grounds of defendant’s adultery and further determined that plaintiff’s conveyance of previously owned real estate in joint tenancy with the defendant, following marriage, was void for want of consideration, want of délivery of the deed, and that the deed was obtained by false and fraudulent representations. Defendant’s counterclaim for partition was dismissed for want of equity, and the decree ordered the defendant to reconvey the property to the plaintiff.

This appeal is limited to that part of the decree ordering the wife to reconvey the interest in the real estate and dismissing her action for partition.

The plaintiff, aged 64, and the defendant, aged 21, were married on June 2, 1963, following a courtship of two and one-half years. On September 14, 1963, plaintiff’s real estate, owned by him prior to the marriage, was conveyed so as to create a joint tenancy between the parties. The deed was recorded on September 24, 1963. The defendant admitted that she went to visit her mother for a week and a half or two weeks during the first part of October, 1963, and moved from the town where the parties resided on October 15th. An issue is whether defendant lived in plaintiff’s home following the marriage.

The complaint, filed in September, 1964, sought divorce upon the grounds of adultery and contained counts alleging that the conveyance in issue was without consideration and was induced by fraud and asked that defendant’s interest in the real estate be cancelled and held void. The case was heard by the trial court upon an amended complaint relating to the same issues. Defendant answered, denying the charges of adultery and alleging that she was a joint tenant in the real estate by virtue of the deed, and counterclaimed for partition of the real estate.

The plaintiff’s evidence is that the defendant refused to live with him in his home beginning with the return on the day of the wedding. It is his testimony that as they returned to Mt. Pulaski from Decatur, she stated that she was sorry that she had married him and was not going home with him, and that she stayed that night at the home of a friend in Mt. Pulaski with whom she had been living, and substantially that she continued to do so until leaving Mt. Pulaski. Defendant says that she may have made the statement that she was sorry that she had married him. Defendant further says that she stayed for several days with her friend in the town because a bedroom in the house was being painted, although it appears that at least one other bedroom was available.

The testimony of the plaintiff, with some corroboration, is that the defendant refused to stay at his home at night, except for two occasions when defendant’s mother was visiting, at which time the defendant occupied a bedroom with the latter. Plaintiff testified that the only other occasion when defendant stayed the night was a time when the parties had been out to dinner, and as they returned the defendant became violently ill and remained so during the night. The tenor of the evidence is that the defendant frequently came to the home during the day and that she prepared the meals which were taken to the plaintiff at his place of business.

Upon defendant’s testimony, she left because of the impotence of the plaintiff. He denies this. It is her testimony that she did, in fact, live in the home of the plaintiff during most of the period through June 2nd to October, 1963. Her corroborating witness spoke of visits to the home of the parties in the late afternoon or early evening.

The thrust of plaintiff’s testimony is that he was seeking to persuade the defendant to come to the home and live with him, and that he purchased a colored television set with the hope of persuading her so to do. He further testified that following conversations with the defendant and her promises that she would come to live in the home, he procured the conveyance in joint tenancy, which is at issue. The essence of defendant’s testimony is that plaintiff wanted to make ■ provision for her and to cut out plaintiff’s children, who did not approve of the marriage of the parties.

From the testimony of the defendant, it appears that she moved from Mt. Pulaski without telling plaintiff that she was doing so.

Our examination of the record demonstrates utter conflict upon most of the matters of evidence between the parties. As has been so frequently said by reviewing courts, the trial court has the opportunity to hear the witnesses and observe their demeanor and manner of testifying, and for such reason the findings reached by the trial court will not be disturbed unless manifestly against the weight of the evidence. Tuyls v. Tuyls, 21 Ill2d 192, 171 NE2d 779; Baker v. Baker, 412 Ill 511, 107 NE2d 711. Our examination of the record discloses nothing calling for the conclusion that there was manifest error by the trial court.

It is the defendant’s theory that by reason of the marital relation, the conveyance from the plaintiff to defendant is presumed to be a gift. An acceptance of the determination of the trial court upon the nature of the transaction makes such a presumption difficult to sustain.

The authority in this State is that absent fraud or coercion, a voluntary conveyance by a husband to his wife will be presumed to be a gift. Equally established, however, is the authority that where the conveyance is made upon the promise of the wife to return to the home, or to act as a good and kind wife and such promise has not been kept, equity will hold the conveyance a nullity. In Fischer v. Fischer, 245 Ill 426, 92 NE 283, it was said that fraud might reasonably be inferred from such circumstances. In Coonce v. Coonce, 296 Ill 585,130 NE 349, under similar circumstances, it was said that the deed was obtained in bad faith. See also Bissett v. Bissett, 375 Ill 551, 31 NE2d 955. In Walsh v. Walsh, 372 Ill 254, 23 NE2d 341, the Supreme Court cited Fischer as requiring that the transaction must be in good faith on the part of the wife.

We have examined the several authorities cited by defendant. In Lutticke v. Lutticke, 406 Ill 181, 92 NE2d 754, the divorce was granted after the wife’s desertion some six years subsequent to the conveyance. The husband’s sole contention was that the property was equitably his because he furnished the consideration. There was no allegation of fraud, want of consideration or bad faith. In Shlensky v. Shlensky, 369 Ill 179, 15 NE2d 694, the Supreme Court reversed the decree setting aside the conveyance to the wife, finding that four independent witnesses had contradicted the testimony of the husband regarding the representations made at the time of the conveyance, and noting that six years had intervened between the conveyance and the divorce proceeding. In Bielby v. Bielby, 333 Ill 478, 165 NE 231, the Supreme Court distinguishes conveyances made in consideration of marriage from those made after marriage upon a promise to be faithful, as in Hursen v. Hursen, 212 Ill 377, 72 NE 391, and Wiederhold v. Wiederhold, 305 Ill 429, 137 NE 461, pointing out that the latter cases were decided upon equitable considerations. Defendant also relies upon Baker v. Baker, 412 Ill 511, 107 NE2d 711, where the Supreme Court pointed out that the presumption of a gift from husband to wife is rebuttable. In that case, however, there was no evidence that a gift was not intended, it appearing that the trial court had found no promises or misrepresentations by the wife, and that the conveyance in issue was made some seven years before her misconduct.

The defendant argues that there was a failure to prove the five traditional elements of fraud, particularly urging that a promise of future conduct, even assuming an intention not to perform it, is not the false representation of past or present existing material fact essential to relief from fraud. In addition, however, to the case heretofore cited providing equitable relief in instances of promises relating to future conduct in marital matters, we find that equity will provide relief in those cases where the promise made without intent to perform, or the false representation, is, in fact, part of the scheme or device to procure the conveyance. McDonald v. McDonald, 408 Ill 388, 97 NE2d 336; Luttrell v. Wyatt, 305 Ill 274, 137 NE 95. As stated in Roda v. Berko, 401 Ill 335, 81 NE 2d 912 at p 915:

“However, in cases where the false promise or representation of intention or of future conduct is the scheme or device to accomplish the fraud and thereby cheat and defraud another of his property, equity will right the wrong by restoring the parties to the positions they occupied before the fraud was committed. Luttrell v. Wyatt, 305 Ill 274, 137 NE 95; Abbott v. Loving, 303 Ill 154, 135 NE 442.”

The defendant admitted that she went to her mother’s home town within several days after the deed was returned from the Recorder, and there is evidence that within a month following she entered into an adulterous relation. We believe that the trial court was authorized to scrutinize such conduct for inferences of bad faith prior to and at the time of the conveyances. Defendant’s argument that plaintiff should not have relied upon defendant’s promises, but should have been suspicious of them, or that he was chargeable with knowledge that the representations were false when made, is not appropriate under the facts of this case. The decree of the trial court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Betty Wilson, Defendant-Appellant.
    Gen. No. 10,762.
    Fourth District.
    February 2, 1967.

      Burt Greaves, of Champaign, for appellant.
    John J. Bresee, State’s Attorney of Champaign County, of Urbana, for appellee.
   TRAPP, J.

Defendant appeals from a judgment of conviction of voluntary manslaughter following a bench trial upon an indictment in counts charging murder and involuntary manslaughter, respectively.

Following the post-trial motion, defendant withdrew her petition for probation, and evidence in mitigation and aggravation-was waived. The court, upon evidence heard during the trial, imposed a sentence of two to fourteen years.

The issues raised relate to the event of the death of defendant’s husband at the home of the parties in Urbana, Illinois, on April 2,1965. The autopsy established that the cause of death was a single wound penetrating the chest wall and right ventricle of the heart resulting in a massive internal hemorrhage which, in the opinion of the pathologist, would cause the victim to go into shock within 15 minutes with death ensuing in 35 minutes. It was the opinion of this witness that decedent could walk about after receiving the wound until the onset of shock.

Defendant’s theory is stated to be that the evidence failed to prove the defendant guilty of any crime beyond a reasonable doubt, and that none of the evidence supports the judgment of voluntary manslaughter. It is further urged that the corpus delicti was proven by an extrajudicial confession alone, and that certain admissions made by the defendant are not sufficient to authorize conviction. Finally, it is contended that the evidence introduced by the State developed elements of self-defense and that there was a failure to prove defendant guilty beyond a reasonable doubt upon this issue.

The framework of time established for the tragedy begins with fair certainty at about 6:00 p. m. when a neighbor observed the defendant and her husband in the driveway of their home and testified that she heard the defendant addressing her husband with profane and obscene language. The decedent was described by the witness as saying nothing, grinning and turning away.

At 8:18 p. m. the Urbana police received a call from the home of the defendant and four officers arrived within minutes to be admitted together into the house by defendant’s brother, Artie Pellum. The officers immediately observed that the decedent was lying between twin beds in a bedroom, his feet toward the door of the room, and that the defendant was kneeling at his feet. Upon immediate examination by the police, they were unable to discover any pulse or respiration and the decedent was declared dead upon arrival at a hospital.

There is substantial agreement in the testimony of the four officers that at the time they entered the room and observed the defendant, she was crying and saying, “I did it — I didn’t mean to. He was going to beat me again,” and that this was repeated several times as they were in the room making the physical examination of the decedent.

The police officers testified that shortly thereafter they were with the defendant in the kitchen of the home and that in response to questions, the defendant stated that she and her husband had been arguing in the living room and she had gone to the kitchen, obtained a knife from a rack and returned with it and struck the decedent once with a knife. At that moment the parties were just inside the living room door, and several drops of blood were found upon the floor in that area. She stated that he pulled the knife out, walked to the kitchen sink and washed it and put it back on the rack and that was the last she could recall.

Considerable blood was discovered to be in the lavatory and various parts of the bathroom, and blood and mucus in the area of decedent’s mouth as he lay on the floor between the twin beds. The police discovered the body naked from the waist up, and a “T shirt” pierced and stained with blood was discovered wadded up upon one of the beds adjacent to the decedent’s body. No knife found upon the premises was conclusively identified as the one used. The evidence is that in reply to questions, the defendant stated that the police could find it themselves.

The interval of time between 6:00 p. m. and the arrival of the police officers is only described through the testimony of Artie Pellum, a brother of the defendant. In summary, he testified that he telephoned the defendant at 7:30 or 7:45 asking her to do his laundry to which she assented, that he arrived at the home in 15 or 20 minutes and entered the back way to find defendant sitting at the kitchen table. He stated that he was there about 10 minutes and defendant asked him to take her to get some hamburgers to deliver to defendant’s son who worked at a filling station, that they went to the hamburger place staying about 10 minutes, and then went on to the station where the son worked staying about 15 minutes. At this time the defendant purchased cigarettes. He testified that they returned to defendant’s home and the latter took her coat into the bedroom at which time she screamed or called and he went into the room to discover decedent’s body, and that in about 5 minutes after seeking to locate a doctor, he called the police.

A statement by the trial court at the time of announcing the conviction discloses that the court concluded that Pellum was impeached upon certain points, i. e., his denial that upon two occasions he had told investigating officers that as they returned from delivering the hamburgers she had stated that she had stabbed her husband, and upon his further denial that at about midnight on April 2nd while at the home of neighbors of the defendant, he had stated that he saw decedent’s feet as he lay between the beds at the time he, Pellum, had brought the laundry to defendant’s home. It appears to us that the record supports the trial court’s determination. An examination of the record leads to the conclusion that there is no evidence which contradicts the evidence offered by the State as to the conduct and statements of the defendant at the time the police came to the scene. The defendant did not testify, and the testimony of the brother, Pellum, is that while he was present throughout the preliminary investigations he cannot recall what was said or done. He stated that he believes the police asked the defendant what happened, but that he doesn’t know what was said in reply. This is explained by his statement that he was wandering from room to room and was not listening to what was being said. Defendant’s sister, Mrs. Millage and the latter’s husband, came to the home sometime after the matters set out had transpired. They contradicted the testimony of Officer Broderick, who was related by marriage to the defendant, that while the Millages were at the home defendant stated that she had stabbed the “son-of-a-bitch,” but they agree with Broderick that the defendant had been quarreling with Mrs. Millage, in profane terms, concerning other matters.

We have examined authorities cited by the defendant upon her proposition that statements considered as admissions made at the scene by the defendant and in evidence, will not support a conviction. People v. Nitti, 312 Ill 73, 143 NE 448 and People v. Hobbs,. 400 Ill 143, 79 NE2d 202, relate solely to the proposition that admissions will not be implied by silence when statements were made in the presence of the person subsequently accused. It is to be noted that in each case vigorous denial of the charge was made by the respective defendants during the course of the trial.

Defendant argues that there was no proof of the corpus delicti except through the extrajudicial confession of the defendant. This does not appear to be, in fact, the rule. In People v. Manske, 399 Ill 176 at p 184, 77 NE2d 164, it is said:

“It is contended, however, that the corpus delicti cannot be established by the statements of the defendant. This is not an accurate statement of the law. The well-settled rule is laid down in Campbell v. People, 159 Ill 9, as follows: ‘It is, however, familiar law, and frequently recognized by this court, that extra-judicial confessions of the commission of crime, where such confessions are relied upon to establish guilt, are not sufficient to authorize a judgment of conviction without other sufficient proof of the corpus delicti, but that the corpus delicti should first be otherwise established, not, however, necessarily by direct evidence only. (Citations)’ This case has been cited and followed a great number of times and is settled law upon the subject. The point to be noticed, however, is that the corpus delicti, that is, the death and the criminal agency, cannot be established by the extra-judicial confession of the defendant. A confession is an acknowledgment of guilt, and not of any particular fact connected with the case, and the rule was doubtless adopted because in the past instances had occurred where defendants, under promises or threats, confessed to the murder of missing persons, who, in fact, were afterwards found to be living.”

The corpus delicti includes the elements of the death of the victim and that such death resulted from a criminal agency. People v. Melquist, 26 Ill2d 22, 185 NE2d 825; People v. Jones, 22 Ill2d 592, 177 NE2d 112. The proof of the corpus delicti does not include the proof of the identity of the person who committed the homicide and the identity of the latter must be proven beyond a reasonable doubt. People v. Bailey, 56 Ill App2d 261, 205 NE2d 756. See also People v. Manske.

Here the identity and the death of the victim are clearly established. The question of criminal agency is determined as a question of fact. Here a pathologist testified that the wound did not have the characteristics of a self-inflicted wound, and that it would be difficult for an individual to induce such wound by himself. The statement of the defendant that she struck her husband with a knife establishes further facts relevant to the criminal agency. In People v. Manske, 399 Ill 176, at p 186, 77 NE2d 164, the defendant testified in a manner exculpating himself, and such testimony was deemed proof of facts going to establish the corpus delicti. Certain of defendant’s admissions in evidence may be deemed of an exculpating character.

Defendant urges that there is affirmative evidence of self-defense and that upon such issue the prosecution failed to prove the defendant guilty beyond a reasonable doubt. Such theory of self-defense can only be found upon acceptance of the truth of defendant’s statement to the police officers that she struck her husband with a knife because he was going to beat her again. We find no further evidence upon this issue.

Such statements, however, include the facts that the defendant and her husband were arguing in the living room, that she went to the kitchen, obtained the knife, returned and struck the decedent just inside the living room door. Discovery of drops of blood in this room corroborated such fact. It is in evidence that at one point defendant said that her husband was laughing at her as she went to get the knife. All of the evidence is that the defendant was the one who displayed high and profane anger. It is not apparent that the defendant claimed that she was actually being beaten, and the testimony is that there were no fresh marks or other evidence of violence observed upon the person of the defendant. The exculpating words only suggest a prospective beating. Even if one concludes that the evidence does not show the defendant acting as an angry aggressor, we must consider the Criminal Code of 1961, Chap 38, § 7-1 (Ill Rev Stats, 1961) which distinguishes the use of force to defend oneself against the imminent use of unlawful force from the use of force which is intended, or likely to cause death. We note the language, in part:

. . However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. . . .”

It is, perhaps, unnecessary to point out that striking a person in the chest with the point of a knife is likely to cause death. Under the circumstances in evidence there existed no reasonable ground for defendant to believe that it was necessary to stab the decedent to prevent imminent death or great bodily harm to herself. People v. Colson, 70 Ill App2d 447, 217 NE2d 348.

Defendant argues that the testimony of the police officers contained conflicts in detail and criticizes the investigative steps employed. We cannot conclude that the evidence upon the elements of the offense are impeached by such conflicts of detail, many of which appear to arise from imprecise semantics and specifications of time. The testimony of numerous witnesses show substantial agreement of details as to the statements of the defendant, and under such circumstances defendant’s admissions are acceptable evidence. People v. LaCoco, 406 Ill 303, 94 NE2d 178. We have noted defendant’s argu ment suggesting possibilities that other persons may have caused the death. Whatever the importance of rebuttal evidence refuting such alternatives, it does not appear that the elimination of other possible offenders is a proper part of the State’s case in chief.

The judgment of the trial court is affirmed.

Affirmed.

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


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Morris Randall Pruitt, Defendant-Appellee. The People of the State of Illinois, Plaintiff-Appellant, v. Esther Pruitt, Defendant-Appellee.
    Gen. Nos. 66-37, 66-38.
    Second District.
    February 2, 1967.

      Henry S. Dixon, State’s Attorney, of Dixon, for appellant.
    Gunner and Keller, and Tomas M. Magdich, of Dixon, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This appeal involves two cases — consolidated for trial— in which each defendant was indicted for the offense of the possession of burglary tools. (Ill Rev Stats 1965, c 38, § 19-2.) The defendants moved to suppress the alleged burglary tools on the ground that they were discovered in an unlawful search of the personal effects of the defendant, Esther Pruitt, without her consent and without a search warrant, when neither defendant was under arrest; and that the arresting officers, at such time, had no reasonable grounds to believe that either defendant was committing or had committed an offense. The trial court, after hearing, found that the evidence failed to establish that the arresting officers had reasonable grounds to believe that an offense had been committed; that the arrests of the defendants were unlawful; that the searches were void; and ordered that such burglary tools be suppressed from being used as evidence against the defendants at the trial. The State appealed from this order.

Reverend George Curran, pastor of St. Paul’s Lutheran Church of Dixon, and police officers Camery and Dusing testified at the hearing on behalf of the defendants. Each was cross-examined by the State, and officer Camery testified for the State. A fair appraisal of their testimony indicates that the police officers received a call at about 1:25 p. m., on Sunday, March 28, 1965, to come to St. Paul’s Church right away. Upon arrival, the officers talked to Mrs. Stiles, the Church secretary, who told them that a theft had been committed at the morning service; that the bottom of a money bag had been cut and about $100 in bills had been taken; that when she returned to the Church after lunch, she saw somebody running in the hall and at the same time “saw a man in my locked office kneeling down at the safe . . .”; that the safe was open; that the two persons whom she had seen were then with Reverend Curran in the study. She also showed the mutilated money bag to the officers. Before calling the police, Mrs. Stiles had called Reverend Curran, who, along with his associate pastor, came immediately to the Church.

After the morning service the Church proper was locked, but the Tower door entrance to the Church remained unlocked and this entrance led to the hallway, the Church office, the study and certain other rooms.

The defendants, husband and wife, who had an infant child with them, and Reverend Curran were in the study for about five minutes before the police arrived.

Mr. Pruitt told Reverend Curran that he desired information concerning employment in the Dixon area.

The police, after talking with Mrs. Stiles, went to the study to question the defendants. They told the Pruitts that they considered them suspects of an offense and that they would have to come to the police station with them. Following this statement the Pruitts made no protest, either verbally or physically, until the officers later started to place handcuffs on Mr. Pruitt, and at that time they resisted, but went with the officers. The officers then asked the defendants about their present and prior addresses, and questioned Mr. Pruitt concerning his employment.

The officers also made a perfunctory search of the defendants which began by requesting each of them to produce an identification. Mr. Pruitt complied by giving the officers his billfold, which they searched. It established his identity, and the officers returned it to him. Mrs. Pruitt stated that she had no identification. One officer asked her what she had in her purse and she replied that she didn’t like to have people going through her personal things. When the officer insisted on some identification, she pushed her purse toward him — a push which Reverend Curran characterized as reluctant — and upon examination of its contents, the officers found six items described as burglary tools. These searches were made without a search warrant. Under our decision, we need not decide whether Mrs. Pruitt consented to this search.

After the defendants were placed in jail, the officers searched the Pruitt car, which was parked near the Church, and found another homemade tool, described as a burglary tool, and a paper bag filled with coins. This search was likewise made without a warrant.

Reverend Curran, who did not remember whether he informed the defendants that he suspected them of some wrongdoing, did recall that the police officers asked the Pruitts to come with them after the contents of the purse had been laid upon the table. He stated that at such time one of the officers said, “This is evidence enough.” It was also his recollection that Mrs. Pruitt carried the baby into the study; and Mr. Pruitt, the purse.

However, both police officers testified that upon entry into the Church study they informed the defendants that they were suspects of a crime and would have to come to the police station with them. This testimony was not refuted. The officers also testified that they arrested the Pruitts prior to searching Mrs. Pruitt’s purse; and that they did so upon entering the Church study by making the aforesaid statement to the defendants.

This factual background presents for our determination the issues of whether the arresting officers, who had no warrants for the arrest or search of the defendants, had reasonable grounds to believe that the defendants had committed or were committing an offense as required by section 107-2 (c) of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, par 107-2 (c)), and if so, had the officers effected an arrest of the defendants prior to or at the time they searched them as required by section 107- 5 (a) (Ill Rev Stats 1965, c 38, par 107-5 (a)); and were such searches proper under the provisions of section 108-1 of said Code (Ill Rev Stats 1965, c 38, par 108- 1), which provides:

“Search without Warrant] When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
(a) Protecting the officer from attack; or
(b) Preventing the person from escaping; or
(c) Discovering the fruits of the crime; or
(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.”

Section 114-12 of the Code sets forth the procedure to be followed in bringing before the court the issue of suppressing evidence alleged to have been illegally seized. (Ill Rev Stats 1965, c 38, par 114-12.) We believe this issue was properly presented to the trial court, and recognized that since Mapp v. Ohio, 367 US 643, 6 L Ed2d 1081 (1961), unreasonable searches and seizures are violative of the Fourteenth Amendment to the United States Constitution; and that the Illinois law in regard thereto in the final analysis, is thereby federalized.

The threshold issue here is whether the arrest of the Pruitts was lawful, and this is to be determined by whether the police officers had reasonable grounds to believe that the Pruitts were committing or had committed an offense. The People v. Zazzetta, 27 Ill2d 302, 310, 189 NE2d 260 (1963); The People v. Galloway, 7 Ill2d 527, 534, 535,131 NE2d 474 (1956).

Particular attention must be given to section 107-2 (c) of the Code of Criminal Procedure which authorizes a peace officer to arrest a person when “He has reasonable grounds to believe that the person is committing or has committed an offense.” This provision does not require that the officer know that an offense has in fact been committed. (See: Committee Comments, SHA ch 38, § 107-2; and Arrest and Arrest Alternatives, The University of Illinois Law Forum, Vol 1966, Summer, Number 2, pages 244-246 incl.)

In The People v. Galloway, supra, the court stated at page 535:

“The belief induced in the mind of an officer must be a reasonable belief and must appear on subsequent inquiry to have been founded on such facts as would, in the mind of a reasonable man, give rise to a suspicion that the prisoner is guilty of or implicated in a crime. A mere suspicion in the mind of an officer not so supported will not justify a search.”

In other cases the Illinois courts have construed the reasonable grounds test of the Code quite liberally. In The People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964), the defendant, who was a known offender to the police, was seen carrying certain articles in a location where several thefts had occurred. When he saw the police, he attempted to flee and was then arrested. In The People v. Jones, 31 Ill2d 42, 198 NE2d 821 (1964), Jones, who appeared to be a narcotics addict, was seen walking in an area where a burglary had recently occurred, in possession of goods similar to those reported to have been stolen. And, in The People v. Garrett, 49 Ill App2d 296, 200 NE2d 7 (1964), Garrett, who appeared unkempt, was seen in an area, where a burglary had been committed, carrying a large item from a recently burglarized building. In all of these cases, the court found that the arresting officers, who had no warrant, had reasonable grounds to believe that the parties in question had committed or were committing an offense.

In The People v. Cain, 35 Ill2d 184, 220 NE2d 195 (1966), the court stated, at pages 186 and 187:

“In determining whether reasonable cause exists in a particular case the court deals with probabilities and must act upon practical considerations of everyday life. (People v. La Bostrie, 14 Ill2d 617.)”

And, in People v. Garrett, supra, the court stated at pages 299 and 300:

“Reasonable cause for an arrest does not require the same quantum of evidence necessary to support a conviction. This principle was first stated by Chief Justice John Marshall in Locke v. United States, 7 Cranch 339, 3 L Ed 364 and reaffirmed in Brinegar v. United States, 338 US 160, 175. Reasonable cause may also be founded upon evidence that would not be admissible at the trial. Brinegar v. United States, 338 US 160; United States v. Heitner, 149 F2d 105, 106. The test is whether a reasonable and prudent man in the possession of the knowledge which has come to the arresting officer would believe the person arrested is guilty of a criminal offense. Husty v. United States, 282 US 694; People v. La Bostrie, 14 Ill2d 617, 622, 153 NE2d 570; People v. Jones, 16 Ill2d 569, 574, 158 NE2d 773; People v. Fiorito, 19 Ill2d 246, 166 NE2d 606.”

Also see: The People v. Zeravich, 30 Ill2d 275, 195 NE2d 612 (1964); and People v. Tadlock, 59 Ill App2d 481, 208 NE2d 100 (1965).

These principles have been proclaimed by the United States Supreme Court in Ker v. California, 374 US 23, 35, 36, 10 L Ed2d 726, 739 (1963); and in Draper v. United States, 358 US 307, 310-312 inch, 3 L Ed2d 327, 330, 331 (1959). In Draper, in pointing out the difference in proof required to establish guilt and probable cause, the court stated at page 332:

“ Tn dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra (338 US at 175). Probable cause exists where ‘the facts and circumstances within (the arresting officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 US 132, 162, 69 L Ed 543, 555, 45 S Ct 280, 39 ALR 790.”

This subject was also aptly discussed in The People v. Jones, supra, at page 47, where the court noted that, “. . . it has been observed that police officers ‘often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill2d 11, 19.”

We further believe that the arrests were made when the officers entered the study and informed the Pruitts that they were suspects of a crime and would have to come to the police station with them. This was prior to the search of the Pruitts and the discovery and seizure of the alleged burglary tools. Section 107-5 (a) of the Code of Criminal Procedure, supra, provides:

“An arrest is made by an actual restraint of the person or by his submission to custody.”

We believe that the officers’ statement to the Pruitts constituted an actual restraint of their person and, in addition, that the Pruitts then and there submitted to such custody. It was only at a later time — after the search revealed the tools, described as burglary tools,— that they made any protest or resistance to the existing restraint by the officers.

In People v. Mirbelle, 276 Ill App 533, 541, 542 (1934), the court defined an arrest as consisting of authority, intention and restraint of the person. The intention to make an arrest must be understood by the person arrested and the restraint or detention must be actual. However, such actual restraint is effected when the party is brought within the power of the officer; and there need be no actual force or manual touching of the body of the person arrested. When these three elements exist, or when the parties, to whom words are spoken indicative of an arrest, submit, the arrest is accomplished. Such were the circumstances in the case at bar.

The defendants had no reason, consistent with propriety, to be in the Church at a time when services were not in session and the building was locked — except for the Tower door which admitted persons into a corridor, off which the Church office, study and other similar rooms were located. A person who enters a church for a legitimate purpose does not normally do so at a time when services are not being conducted and when the church is unattended; and he does not customarily seek out the church office, gain access to it through a door which was locked, then proceed to kneel before and examine the contents of its safe. Neither does such person flee through the hall when the church secretary enters the church.

It taxes our credulity to believe that such kneeling was for a prayerful purpose or that such entry into the Church was for the purpose of discussing employment. In addition, if the purpose was proper, why did Mrs. Pruitt flee through the hall when Mrs. Stiles entered the Church ?

When informed of the theft after the morning services and of the circumstances herein related, we believe that the officers had adequate information to afford them reasonable grounds to believe that the defendants had committed or were committing an offense.

In view of this determination, we find that the search of the defendants, and the area in their immediate presence, in the Church study, after their arrest, was proper; that the tools, designated as burglary tools, found in Mrs. Pruitt’s purse and subsequently seized by the police, were erroneously suppressed; and that the court erred in entering an order denying their admission in evidence against the defendants at the trial.

We recognize that when an arrest is unlawful, the subsequent discovery of evidence does not relate back to and operate as a justification for the arrest (The People v. Galloway, supra, 535), but we find no basis for the application of this rule under our findings in respect to the lawfulness of the arrest and the sequence of the arrest and the search. Where the arrest is justified, the accompanying search without a warrant is also justified, and evidence taken from the person as a result of that search, if otherwise competent and relevant, is admissible, against the party or parties searched and charged with the offense. The People v. Boozer, 12 Ill 2d 184,187,188,145 NE2d 619 (1957).

Section 108-1 of the Code of Criminal Procedure, subsection (a), (b) and (c), lists the heretofore traditionally recognized purposes of a lawful search of a person and the area within such person’s immediate presence. However, subsection (d) thereof recognized the further right to make such search, under proper circumstances, for evidence of an offense. Thus, pursuant to subsection (d), the officers could legally search the Pruitts to discover instruments, articles, or things which may constitute evidence of an offense. And, thereunder, the search would be a reasonable one even though it was not restricted to evidence directly related to the offense for which the arrest was made. See: Committee Comments, SHA ch 38, § 108-1.

However, there is no basis under which the propriety of the search of the Pruitts’ car can be sustained. It was made after the Pruitts were lodged in jail. It was totally unnecessary for any of the reasons specified in section 108-1, and, in addition, the evidence does not establish that it was within the area of the Pruitts’ immediate presence. The People v. McGhee, 35 Ill2d 302, 304, 305, 220 NE2d 205 (1966); The People v. Gates, 35 Ill2d 584, 585, 221 NE2d 285 (1966).

Consequently, the Order of the trial court suppressing the evidence as to the homemade tool, designated as a burglary tool, and as to the paper bag of coins found in the search of the Pruitts’ car, is affirmed; and the Order reversed as to the items designated as burglary tools, which were found in Mrs. Pruitt’s purse. Such items were found and seized in the process of a lawful search and no constitutional prohibition exists with reference to their admission in evidence against the defendants at the trial of this case.

Affirmed in part, and reversed and remanded in part with directions.

MORAN, P. J. and SEIDENFELD, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Josephine Dmitroca, Plaintiff-Appellee v. Aleksander Dmitroca, Defendant-Appellant.
    Gen. No. 66-78.
    Second District.
    February 2, 1967.

      Cannariato, Nicolosi and Pigatti, of Rockford, for appellant.
    Miller, Thomas, Hickey and Collins, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Josephine Dmitroca was granted a decree of divorce from Aleksander Dmitroca on September 29, 1965, on the ground of cruelty with the questions of alimony and property rights reserved for further hearing. At the conclusion of that hearing, on February 3,1966, the court awarded the real property to the wife “in lieu of alimony.” The husband appeals, claiming that no alimony award was proper under the facts; so that an award in lieu of alimony was not justified under section 18 of the Divorce Act (Ill Rev Stats 1965, c 40, § 19). He also claims that the conveyance of the entire property was not justified under section 17 of the Divorce Act (Ill Rev Stats 1965, c 40, § 18) since the husband, in any view of the evidence, contributed one-half of the down payment for the house, held in joint tenancy.

No question is raised as to the validity of the divorce.

From the record, it is undisputed that the parties were married in 1947; that the house was purchased in 1955 for $14,500 in both names; that the down payment was $6,000, of which $4,000 was paid by the parties in cash, with the balance of $2,000 on a note payable to the sellers, which was paid off within one year from joint funds.

The wife testified that she made all mortgage payments thereafter, together with all taxes and insurance premiums, out of her own earnings from her employment. The parties had no checking account and the wife made all payments in cash. While both worked, she consistently made more money than her husband. One year she made $5,100 and he made $2,600. However, the documentary evidence submitted at a continued hearing in the form of withholding receipts from the year 1951 through 1964 (with no document for the year 1955) shows a variance of between approximately one thousand to two thousand in the annual earnings of the parties. A new gas furnace which cost $660 was paid for in cash out of both of their earnings, as were aluminum awnings for $900, and aluminum doors for $108. They bought furniture and TV sets.

She paid $120 from her own money for eaves and downspouts. Each had a car, hers costing $1,700, was paid out of her own earnings each month; his was paid from earnings of both. The husband gave her $50 a week which was used mostly for himself for gasoline, cigarettes and clothes. Almost every week he took the $50 back in various portions. His paychecks were always cashed before he came home and she never saw one. He drank every day and played poker over several years. He had been expelled on many occasions from the Polish Falcons Club for being drunk.

She separated the money by keeping his in a box and paid the car and the house payments from her own earnings.

The husband’s testimony substantially corroborated the wife’s except that he claimed he gave her his checks and they were sometimes $60 to $80 a week. However, the checks were subpoenaed and showed that all of his some 300 checks, with the exception of four or five (which were endorsed to the seller of the house) were cashed at various taverns. None showed an endorsement of the wife. He testified that he had earned $65 or $70 a week for the past two years and presently was earning over $100 a week.

The court found “that the equities are in favor of the plaintiff . . . and that she should be awarded the aforesaid real property in lieu of alimony.”

The criteria to be followed by courts in determining alimony where both parties have income have been consistently stated in many decisions: the allowance of alimony is to furnish the wife support or contribute to her partial support. Buehler v. Buehler, 373 Ill 626, 27 NE2d 466 (1940); while there is no hard and fast rule as to the amount to be awarded, the court may consider the age, health, property and income of the parties and also the nature of the husband’s misconduct as a circumstance and not as a punishment. Byerly v. Byerly, 363 Ill 517, 2 NE2d 898 (1936). The wife’s annual income is to be added to that of the husband, all of the circumstances as to her allowance out of this aggregate are to be considered, her separate income is to be deducted, and she is to be awarded the remainder. Gilbert v. Gilbert, 305 Ill 216, 137 NE 99 (1922); Decker v. Decker, 279 Ill 300, 116 NE 688 (1917). It is recognized that where the entire record shows that an order for periodic payment of money alimony is not feasible, the court may award jointly held real property in lieu of alimony under Section 18 of the Divorce Act as the court may deem equitable without requiring a showing of “special equities,” and considering that the husband is thereby relieved of all future claim for alimony. Simpson v. Simpson, 29 Ill2d 49, 193 NE2d 10 (1963); Smothers v. Smothers, 25 Ill2d 86, 182 NE2d 758 (1962); Miezio v. Miezio, 6 Ill2d 469, 129 NE2d 20 (1955); Doody v. Doody, 28 Ill2d 191, 190 NE2d 734 (1963).

The husband’s argument that the wife is not entitled to any allowance of alimony because she earned consistently more that the husband is without merit. It may be fairly inferred from the record that the trial court reached its result by properly applying the criteria of the foregoing cases to equitably protect a wife who was entitled to contribution to her support from a husband able to contribute but whose past conduct would permit no security for periodic money payments. The amount of the award could not be considered unreasonable in view of the evidence that the property was substantially acquired and paid for through the efforts and contributions of the wife from her separate earnings over many years, and due to her thrift and diligence.

The same result might also have been reached under section 17 of the Divorce Act in view of this evidence. In Tuyls v. Tuyls, 21 Ill2d 192, 171 NE2d 779 (1961) with evidence that at least 80% of the down payment on the real estate was contributed by the wife, together with most of the family income during the marriage, that sums received by the husband were largely devoted to his own pleasures, an award of the real property to the wife was upheld.

In Vesolowski v. Vesolowski, 403 Ill 284, 85 NE2d 695 (1949), a divorce decree gave to the wife a business property theretofore held jointly by the husband and wife under evidence that the down payment had been realized from the proceeds of the sale of a joint business, and from the wife’s savings. She made subsequent mortgage payments from the profits of the business which resulted from her work while her husband was addicted to alcohol.

The trial court was in a better position than a reviewing court, after observing the witnesses and examining the documentary evidence, to properly determine a proper award and to adjust the equities in the property between the parties, and his findings under either section 17 or 18 of the Divorce Act are supported by the record.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: JUSTICE SEIDENFELD.

text:
    Ruth R. Plain, Plaintiff-Appellee, v. John G. Plain, Defendant-Appellant.
    Gen. No. 66-88.
    Second District.
    February 2, 1967.
    Carbary, Carbary and Chapski, of Elgin, for appellant; Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.