text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stanley Gajda, Defendant-Appellant.
    Gen. No. 51,661.
    First District, First Division.
    September 25, 1967.
    Rehearing denied October 11, 1967.

      Jack G. Stein, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Stanley Gajda, was charged with murder and manslaughter in a two-count indictment. The manslaughter count charged that the defendant was guilty of voluntary manslaughter “in that he, acting under a sudden and intense passion, resulting from serious provocation by Jerome Brzezinski, shot and killed the said Jerome Brzezinski with a gun, without lawful justification, in violation of Chapter 38, Section 9-2, of the Illinois Revised Statutes 1963.” The jury returned a verdict of guilty on the voluntary manslaughter count, and Gajda was sentenced to serve a minimum of one year and a maximum of fifteen years in the State Penitentiary.

The defendant contends that the conviction should be reversed because the trial judge gave a manslaughter instruction to the jury, and submitted a manslaughter verdict in a case in which only evidence of deliberate murder had been introduced by the state, and only evidence of self-defense had been introduced by the defendant. The defendant argues that no evidence was introduced upon which the jury could find the defendant guilty of manslaughter, therefore, the manslaughter instruction was improper and constituted error. The defendant asserts that either the defendant was guilty of murder, or he was not guilty of murder, by reason of his claim of self-defense. No other verdict, he says, was possible.

It is the general rule that where the evidence admits of only one of two possible conclusions, one of which is murder and the other being not guilty of murder by reason of a justifiable homicide in self-defense, the giving of instructions and form of verdict as to manslaughter is error, when these instructions are given at the request of the state. People v. Jones, 384 Ill 407, 51 NE2d 543 (1943). The court in Jones found that such an error will require reversal of the judgment if the jury finds the accused guilty of manslaughter. It is also the rule in homicide cases that if there is evidence in the record which if believed by the jury would reduce the crime to manslaughter, an instruction defining the crime must be given. People v. Harris, 8 Ill2d 431, 134 NE2d 315 (1956). It is necessary to examine the evidence in some detail as it was presented in the court below, because of the applicability of the foregoing legal principles to the facts of the instant case. The basic question in the examination of the evidence will be whether or not there was sufficient evidence presented to warrant the jury finding the defendant guilty of manslaughter.

The evidence presented by the State shows that at 4:00 or 4:30 p. m. on January 15, 1965, the defendant, Gajda, and his wife, were tending bar at the Shady Lane Tavern, which was owned by the defendant. According to the testimony of the State’s witness, Kay Garich, the others present in the tavern at this time were the deceased, Jerome Brzezinski, Edward Blackburn, and others not identified. Garich testified that he was present in the tavern from 4:00 or 4:30 p. m. to 11:00 p. m., at which time the shooting occurred. Garich further testified that the defendant told him on several separate occasions, while they were alone in the back room, not to talk to the deceased because “He is a spy.” The witness testified that he, the defendant, the deceased, and Blackburn were all drinking during this time. At 11 o’clock Garich, the deceased, and Blackburn were sitting at the bar, and the defendant was tending bar. Garich testified that at this time a discussion was going on between the four of them. The discussion became heated. “Mr. Brzezinski (the deceased) stood up, put his hands on the bar and he said, ‘you’re a little man. I can buy you and sell you.’ With that, Mr. Gajda pulled out a gun and shot him.”

Edward Blackburn testified that he was also present from 4:00 o’clock until the time of the fatal shooting. He substantiated Garich’s testimony that all of the parties present were drinking during this period of time. Blackburn further testified that the defendant accused the deceased “of being a moocher and cheap and he didn’t have any money.” Blackburn stated that by 11:00 o’clock the defendant and the deceased had been arguing for some time. “It was getting kind of heated and, I don’t know, one thing led to another, then finally Jerry (the deceased) placed his two hands on the bar and he leaned forward. He said, ‘you’re a little man. I could buy you and sell you.’ And with that, he got shot.” Blackburn related that the defendant, who was standing behind the bar, got his gun from his right pocket, and fired four shots at the deceased.

Joseph Mirus, a police officer, testified that he and a fellow officer arrived at the tavern at about 11:05 p. m. He took a gun out of the defendant’s pocket and found one live round and four spent shells inside of the weapon. Gajda admitted the gun belonged to him. Mirus testified that the defendant told him that “He was behind the bar and an argument broke out with him and the victim and the victim started throwing bottles and glasses and he got up on the bar to come over to attack him, and he shot him.” Mirus observed that the defendant apparently had been engaged in heavy drinking.

Joseph Genovese, a police patrolman, called as a witness on behalf of the defendant, said he arrived at the tavern at about 11:00 p. m. He observed that the defendant had been cut, and was bleeding about his left arm and also from his nose. The defendant was taken to a hospital, but he wasn’t hospitalized.

The defendant, Stanley Gajda, took the stand in his own behalf and testified that he tended the bar of his tavern on the day of the shooting, starting at about 4:00 p. m. Gajda stated that at 11:00 o’clock the deceased, to whom he had served beer earlier in the evening, threw a bottle at him, swore at him, and ran behind the bar after him and struck him with a bottle. Gajda claimed that his arm was cut in the fracas and that many stitches were required to close the wound. He testified further that he was frightened that the deceased meant to kill him, so he got a gun from behind the bar and shot him. The defendant denied that he had said anything to the deceased before the bottle was thrown. He also denied that he had told Garieh that the deceased was a spy.

The sole ground relied on for reversal is that the trial court erred in submitting instructions dealing with voluntary manslaughter, and also in submitting a manslaughter verdict to the jury. Defendant does not object to the form or substance of the manslaughter instruction itself, but rather to the fact that a manslaughter instruction was given at all. He urges that the evidence summarized above can admit reasonably of only one of two possible conclusions. Either the defendant has committed murder or he is not guilty of murder by virtue of a valid claim of self-defense. Defendant contends that the evidence introduced at trial will not admit of a manslaughter verdict. However, murder and manslaughter are said to be kindred crimes. U. S. v. Wilberger, 18 US 76, 97. The unlawful killing of a human being is the major factor that characterizes both crimes. At common law every indictment for murder includes, by implication, a count for manslaughter as well. A jury may find the accused guilty of manslaughter in an indictment solely for murder, even though the evidence would not support a verdict of guilty on the murder indictment. People v. Lewis, 375 Ill 330, 31 NE2d 795, cert den 314 US 628.

We find that there was sufficient evidence introduced upon which the jury might find the defendant guilty of manslaughter. People v. Harris, 8 Ill2d 431, 434, 134 NE2d 315. The evidence discloses conflicting stories as to what transpired at the time of the shooting; it is for the jury to resolve these conflicting facts under proper instructions. The record shows that for over six hours prior to the fatal shooting an argument of increasing intensity was taking place between the defendant proprietor and the deceased customer. Both the defendant and the deceased consumed substantial amounts of liquor during this time. Garich testified that during the time leading up to the shooting the defendant accused the deceased of being a cheapskate. He also accused him of not buying his share of the beer. Blackburn also testified that the defendant accused the deceased of being a moocher and cheap. Garich testified further that at 11:00 o’clock the deceased stood up, put his hands on the bar and said, “You’re a little man. I can buy you and sell you.” Immediately the defendant pulled out a gun and shot the deceased. Blackburn’s testimony essentially substantiated Garich’s account of what transpired at the time of the shooting.

The testimony of the defendant conflicted sharply with the accounts of Garich and Blackburn. Whereas they had testified that the defendant had fired from behind the bar at the deceased who was sitting at the customer’s side of the bar, without being physically attacked, Gajda testified that the deceased came around behind the bar after him; that he was under a serious physical attack prior to the shooting. He testified that he believed he was in danger of being killed. “He hit me with the bottle in the arm ... I scared he is going to kill me. He really want to kill me . . . , I shot one shot in the air. That man no stop. He is still want to kill me. He really want to kill me, this man, and I don’t have a chance . . . He still coming. I don’t know how many times I shot but I was so scared. He just want to kill me.”

Mere words, of course, do not constitute sufficient provocation to reduce a killing from murder to manslaughter. However, the evidence introduced at trial discloses that a great deal more than mere words transpired between the deceased and the defendant prior to the fatal shooting. The State introduced evidence of a “quarrel of some duration.” See People v. Stepheny, 76 Ill App2d 181, 134, 221 NE2d 798. The defendant himself introduced evidence of a violent physical attack upon his person by the deceased; that there was “. . . an attempt . . . made by the deceased to inflict a personal injury.” See People v. Harris, 8 Ill2d 431, 434, 134 NE2d 315. Finally, the defendant introduced evidence contradicting the State’s witnesses to the effect that he had acted in self-defense. However, the jury could choose to disbelieve him and find that he had not entertained a “reasonable” belief in the need to wield deadly force to protect himself. Such a conclusion by the jury would justify a finding of manslaughter. See Ill Rev Stats c 38 § 9-2 (b).

Defendant attempts to draw a distinction between self-defense to a murder charge and provocation that reduces a killing from murder to manslaughter. He asserts that provocation in manslaughter results from an imminent attack that creates fear, whereas self-defense results from an attack that is no longer imminent, but is taking place in actuality. This distinction is not supported by the law. An attack that the law will recognize as producing sufficient provocation to reduce a murder charge to manslaughter may be either imminent or present; an attack that may create a reasonable belief in the defendant that the use of deadly force is necessary in self-defense may be either imminent or present. A murder indictment automatically raises the question of whether the defendant’s claimed belief in self-defense is reasonable or not, because a murder indictment automatically raises counts of all of the statutory forms of manslaughter. See People v. Millet, 60 Ill App2d 22, 208 NE2d 670, and Ill Rev Stats c 38 § 9-2 (b). The question as to the reasonableness of the defendant’s beliefs in the need for the use of deadly force in self-defense was properly submitted to the jury in the evidence, and the jury was instructed as to this issue in accordance with the law.

The defendant’s reliance upon the decision in People v. Spinks, 72 Ill App2d 46, 219 NE2d 65, is misplaced. In that case neither was there evidence introduced of defendant’s belief in the necessity for self-defense, nor was there substantial evidence of provocation by the deceased. The situation in the case at bar is entirely different. Here there is evidence of both provocation and of the need for self-defense. The evidence readily admits of a finding of manslaughter, and for this reason the judge’s instructions on this subject were correct.

It is the general rule that where there is any evidence in the record upon which the jury could find the defendant guilty of manslaughter, rather than murder, that finding will not be disturbed upon review. People v. Tripp, 392 Ill 351, 64 NE2d 498. People v. Sain, 384 Ill 394, 51 NE2d 557. The facts in the instant case introduced into evidence could reasonably support differing interpretations to find defendant guilty of murder or of the manslaughter count in the indictment. Since the evidence clearly would support a finding of manslaughter by the jury, the judge in giving instructions as to that crime did not commit error; indeed, failure to give manslaughter instructions and a manslaughter verdict under the circumstances would have been error. People v. Harris, 8 Ill2d 431, 434, 134 NE2d 315. The judgment is therefore affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    Dallas W. Bolander and Catherine L. Bolander, Plaintiffs-Appellants, v. Gypsum Engineering, Inc., Defendants (Dismissed), and John Lester Neesen, d/b/a South Side Floor Sanding Company, Defendant-Appellee.
    Gen. No. 51,680.
    First District, First Division.
    September 25, 1967.

      Goldenson and Goldenson, of Chicago (Nathan G. Brenner, William Elman, and Elman and Ehardt, of counsel), for appellants.
    Kirkland, Ellis, Hobson, Chaffetz & Masters, of Chicago (Bernard E. Harrold and John W. Kearns, Jr., of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Dallas and Catherine Bolander, purchasers of a house under construction in a housing project, brought suit to recover from Gypsum Engineering, Inc., and John Lester Neesen, d/b/a South Side Floor and Sanding Company, for property damage resulting from a fire in their in-completed home. At the conclusion of plaintiffs’ case, the court granted a motion of Gypsum for a directed verdict which ruling is not here contested. After a denial of respective motions of plaintiffs and Neesen for directed verdicts, the case was submitted to a jury which rendered a verdict in favor of defendant, Neesen, and an appeal was taken by plaintiffs from the judgment on the verdict. No issue is raised as to the pleadings.

Plaintiffs contend, (1) that the defendant, Neesen, was negligent as a matter of law, either by reason of specific acts of negligence or under the doctrine of Res Ipsa Loquitur; (2) in the alternative, plaintiffs should be granted a new trial because the verdict of the jury is against the manifest weight of the evidence; and (3) the court erred in the giving and refusing of certain instructions.

The plaintiffs, husband and wife, were the owners of a home located in Posen, Illinois, which was sold to them while being built by C. M. O. Builders. The home was a frame ranch house with a long hallway on the first floor with three bedrooms opening off of it. At the end of the hall, between two bedrooms, was a closet having louver doors which contained certain utilities including the gas water heater and oil furnace.

A fire and explosion causing considerable damage occurred in the premises on July 10, 1958, while Neesen employees were sanding and sealing the floor. Mrs. Bolander said that at the time all the work in the house was completed except the floors and they were going to move into the house a few days later. She testified that on July 8th, at the direction of C. M. O. Builders, she made an appointment with a representative of the Northern Illinois Gas Company and later met him at the premises at 10:30 a. m., on July 10th when he connected the hot water heater and lit the gas pilot light. She had been in the office of the C. M. O. Builders earlier that morning and received the key to the house from the builder’s secretary. At about noon, the Bolanders and the gas representative left the house. Mrs. Bolander also testified that she believed that a C. M. O. employee had also been on the premises checking the back door lock that morning.

John H. Clemens and William F. Mulkey, employees of Neesen, an independent contractor, commenced sanding and sealing the floors of the involved premises about noon of July 10th. No one else was in the premises. Clemens explained that sanding and sealing is a three-part operation. The floors are first completely sanded, after which they apply lacquer floor sealer which is inflammable. They allow the floor to dry and they hand sand the lacquer, sweep it out and varnish it. After they had completed the sanding that day, which took about one and one-half hours, they proceeded to lacquer. Clemens testified that after he had just completed lacquering a bedroom and was backing into the hallway, he saw a blue flame moving and dancing above the floor coming in the doorway. He didn’t know where it came from. He said before he left through the window, the bedroom “was one complete ball of fire.” This all happened, he said, in less than a minute. He also testified that before the explosion occurred he saw flames outside the house.

The evidence revealed the plaintiff’s house was one of a number of new houses being constructed in a project by C. M. O. Builders. Gypsum Engineering Inc., who had been employed by C. M. O. to paint the new houses, subcontracted the floor finishing job to Neesen. The latter had finished the floors in 40 to 50 other houses in this project. The gas had not been turned on in any of those houses before the floor work was completed.

Plaintiffs contend that since Clemens and Mulkey, employees of Neesen, had complete control over the application of lacquer sealer, which they were aware had dangerous properties, and since they were alone in the house when the fire and explosion occurred, Neesen was negligent as a matter of law, either under the Res Ipsa doctrine or on the basis of specific negligence. Plaintiffs claim that defendant was especially negligent for the reason that (1) Clemens and Mulkey smoked cigarettes on the premises within 20 minutes of the fire; (2) the failure by them to properly ventilate the premises; and (3) their failure to determine whether any sources of open flame were present prior to applying the inflammable sealer on the floor of the premises.

In Illinois, questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74. A motion for a directed verdict for plaintiff may be entered when the evidence is such that without weighing the credibility of the witnesses, and after considering it in its aspects most favorable to the defendant, there can be but one reasonable conclusion, and that in favor of plaintiff. Dowler v. New York, C. & St. L. R. Co., 5 Ill2d 125, 125 NE2d 41. In other words:

A court is never justified in directing a verdict for plaintiff where there is evidence from which, when taken with all reasonable inferences and intendments to be drawn or deduced therefrom, the jury might reasonably return a verdict for the defendant. 34 ILP Trial § 133 (1967 Cumulative Annual Pocket Part, p 107).

Plaintiffs’ counsel informs us in their brief that there are no Illinois decisions involving the specific fact situation found in the instant case, but that there are a number of Louisiana decisions which are directly in point, citing: Utah Home Fire Ins. Co. v. Leonard (La App), 100 So2d 259 (1958); Mercury Ins. Co. v. Hodges (La App), 199 So 526 (1941); Letts v. Krause & Managan, Inc. (La App), 26 So2d 838 (1946); and New York Underwriters Ins. Co. v. Prewitt (La App), 55 So2d 303 (1951). However, in each of these cases the home was occupied when the homeowner employed a floor re-finisher who did not ascertain whether the pilot light was burning before he applied the highly inflammable sealing material to the floor. Substantially the same is true in Borowicz v. Chicago Mastic Co., 367 F2d 751.

In the case at bar, the evidence showed that the house was one of many under construction in a project that had never been occupied or lived in before the floors were refinished. In none of the other 40 houses, in which Neesen had refinished the floors prior to the one in question, had the gas been turned on. There was no evidence to show that the Neesen employees had any notice that the plaintiff and the gas representative were in the unoccupied house that morning and had lit the gas pilot light. We are of the opinion, from a reading of this record, that there were questions of fact to be determined by the jury and it cannot be said that the defendants were proven guilty as a matter of law. Nor do we feel that Res Ipsa Loquitur applies here and, therefore, the refusal to give an instruction regarding Res Ipsa Loquitur was also proper, as it is clear that Neesen did not have exclusive control of the premises.

When asked to grant a new trial because the verdict of the jury was against the manifest weight of the evidence, this court must give proper weight to the taking of the evidence and the observance of the witnesses, both by the jury and the trial judge. The jury’s conclusion, whether relating to negligence, causation, or other factual matters, should not be set aside merely because different conclusions could be drawn or because judges feel other results are more reasonable. Dowler v. New York, C. & St. L. R. Co., 5 Ill2d 125, 125 NE2d 41. We have reviewed the record and conclude that the verdict and judgment are within the range of the testimony, and are not against the manifest weight of the evidence.

It is also contended that the court erred in giving IPI instructions 10.03 and 11.01 on contributory negligence over plaintiffs’ objections. It is argued that the record is totally devoid of any contributory negligence whatsoever on the part of the plaintiffs. In our judgment this conclusion is not justified from a reading of the record.

The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Schulewitz, Defendant-Appellant.
    Gen. No. M-51,779.
    First District, First Division.
    September 25, 1967.

      Jerome Feldman and Dennis L. Posen, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant was charged with driving a motor vehicle while under the influence of intoxicating liquor, in violation of the Uniform Act Regulating Traffic (Ill Rev Stats 1961, c 9514). Upon a plea of not guilty and waiver of a jury, the court found defendant guilty and assessed a fine of $100 and $5 court costs and ordered that defendant’s driver’s license be revoked for one year.

On appeal defendant contends (1) the State failed to prove beyond a reasonable doubt both the corpus delicti and guilt of defendant, and that the corpus delicti in the drunk driving case consists of two elements, namely, that the defendant was operating a motor vehicle at the time and place in question, and that he was then and there under the influence of intoxicating liquor; (2) to justify a conviction of operating a motor vehicle while under the influence of intoxicating liquor at a certain time and place through the use of circumstantial evidence, such circumstantial evidence must be of such a nature and proved so thoroughly to establish defendant’s guilt, so as to exclude every reasonable hypothesis of innocence, otherwise a conviction cannot stand; and (3) that the State failed to produce evidence to overcome the presumption of innocence of the defendant.

On December 23, 1965, at about 11:45 p. m., Officer Vincent Hart, in the company of his partner, went to the vicinity of 5703 West Madison Street, Chicago, and found a Volkswagen bus stopped in the center lane of traffic, facing east and obstructing traffic. The defendant was seated in the driver’s seat with his head back, apparently sleeping or passed out. Officer Hart knocked on the window and the driver (later determined to be the defendant) awoke and was told to get out of the vehicle. Officer Hart got into the car to move it over to the side, and at that time another car struck the rear end of the police squad car, which was parked directly behind the Volkswagen, causing Officer Hart to sustain injuries. He was taken to the hospital for treatment, and he returned to the police station at about 3:30 a. m., at which time he observed and interviewed the defendant. The defendant said “he had three bottles of beer,” and that when he was asked if he had been hurt or received any bumps in the 3-car collision, he replied, “No.” When asked if he had anything to drink after the accident, the defendant again said, “No.”

Officer Hart further testified that at the station the defendant had a “strong” odor of alcohol on his breath, “bloodshot, watery” eyes, “flushed” face, and “soiled” clothes; further, “his walking was swaying; his turning hesitant and swaying; the finger to nose on the right hand was hesitant; left hand was hesitant; picking up of coins, he was slow; on the speech test he was slurred, mush-mouthed and thick-tongued.” Based on Officer Hart’s observation of the defendant, it was Officer Hart’s opinion that defendant was “under the influence.”

On cross-examination, Officer Hart stated that he did not know whether or not the keys were in the ignition or if the motor was running at the time he arrived at the scene. When he first observed defendant at the scene, he was not able to determine any odor of liquor on the breath of defendant, and he did not again see defendant until 3:30 a. m., the following day, at the 15th District station. He did not observe the defendant operating the vehicle and had no knowledge of the fact that defendant did operate the vehicle.

The State agrees that “in order to prove the corpus delicti, the State has the burden of proving that the defendant drove a motor vehicle at the time and place in question, and that he was then and there under the influence of intoxicating liquor. People v. Miller, 23 Ill App2d 352, 163 NE2d 206, and People v. Barnes, 34 Ill App2d 238, 180 NE2d 509.” We agree that the burden of proof never shifts in a criminal prosecution, and “in order to warrant a conviction of crime on circumstantial evidence, the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. ... It is true that direct evidence is not necessary, but to warrant a conviction on circumstantial evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of his innocence.” (People v. Grizzel, 382 Ill 11, 19, 46 NE2d 78 (1943).) We also agree that an accused is entitled to rely on the presumption of innocence, and if the State fails to establish guilt, the defendant need not introduce any evidence. People v. Magnafichi, 9 Ill2d 169,137 NE2d 256 (1956).

Defendant argues that in order to prove the corpus delicti, the State must prove that the defendant drove the automobile at the time and place in question, and that the defendant was then and there under the influence of intoxicating liquor. (People v. Miller, 23 Ill App2d 352, 163 NE2d 206 (I960).) Defendant asserts there is no testimony in the record that defendant’s automobile was in an operable condition or that the engine was running, and “there is absolutely no evidence as to the manner in which the Defendant, William Schulewitz operated his automobile at the time and place in question and based upon this alone, the Defendant, William Schulewitz should be discharged.”

As to the corpus delicti, we believe this record calls for the application of the guidelines recently set forth by this court in People v. Haehnel, 78 Ill App2d 71, 223 NE2d 464 (1966), where it is said (p 74):

“Direct and positive evidence is not necessary to prove the corpus delicti, . . . and the test is whether the entire evidence establishes that a crime was committed and that the accused committed it. . . . In considering the evidence, fair inferences may be drawn, and requirement that defendant’s guilt be proved beyond a reasonable doubt does not mean that the court may disregard the inferences flowing from the evidence before it.”

Also, this court said in a similar case, People v. Garnier, 20 Ill App2d 492, 156 NE2d 613 (1959), at p 494:

“ [0] bservation of defendant in the act of driving while intoxicated is not an indispensable requirement for conviction under section 47 of the Traffic Act.”

As said in People v. Garnier, 20 Ill App2d 492, 156 NE 2d 613 (1959), (p495):

“Generally, circumstantial evidence which produces a reasonable and moral certainty that the accused committed the crime is sufficient to justify a conviction.”

We believe that statement applies here. It is a fair inference that when a car is found stopped in the middle lane of a busy thoroughfare, and a person is found asleep or unconscious behind the wheel, sitting in the driver’s seat, with no one else present, that that person drove the vehicle to its present location. It would be most unreasonable to assume otherwise. The evidence here amply supports the assumption that he actually did so.

We believe the observations of Officer Hart were sufficient evidence to prove that the defendant was under the influence of intoxicating liquor at the time and place in question. We conclude the uncontradicted evidence here was sufficient to prove the corpus delicti (1) that the defendant drove the motor vehicle at the time and place in question, and (2) that he was then and there under thé influence of intoxicating liquor. The conviction is affirmed.

Affirmed.

BUKMAN and ADESKO, JJ., concur.


author: PRESIDING JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. A. J. Williams, Defendant-Appellant.
    Gen. No. 51,919.
    First District, First Division.
    September 25, 1967.
    Kovin, Ashen & Carlins, of Chicago, for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert A. Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John E. Jordan and Willie E. Bennett (Impleaded), Defendants-Appellants.
    Gen. Nos. 51,117, 51,118.
    First District, First Division.
    October 9, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants, John E. Jordan, Willie E. Bennett and Theodore A. Saunders, were tried jointly on the charge of armed robbery. All three were found guilty after a jury trial. Saunders and Bennett each received sentences of one to three years and Jordan was sentenced to a term of imprisonment of twenty to thirty years; all three sentences to be served in the State Penitentiary. Bennett and Jordan appeal from the judgment entered on the verdict.

At a preliminary hearing held on a motion to suppress certain evidence Police Officer George Chota testified that on January 8, 1965, he and his partner, Arnold Sickler were on patrol duty. At one o’clock a. m. they were in the vicinity of Archer Avenue and Western Avenue in Chicago. At approximately one ten o’clock a. m. the officers were stopped for a light at Western Avenue and Archer Avenue. Chota further testified that at that time he observed a 1955 Chevrolet with three occupants in it go through a red light on Western Boulevard and Archer Avenue. The officers turned on their emergency signal; the Chevrolet responded in a reasonable manner and pulled off to the side of the road. Chota testified that as he started to get out of the patrol car a “look-out” message came over the radio of the patrol car:

Be on the lookout for a ’55 Chevrolet in very bad condition, possibly white over blue, and containing one negro. He had just pulled a stick-up at 55th and Kolin a few minutes ago west (sic) east on 55th.

Officer Chota testified that the car he had stopped for the traffic violation had no taillights, the bumpers were “hanging,” both fenders on the back were “crunched,” and the trunk was “caved in . . . .” Defendant Jordan was driving and defendant Saunders was sitting next to Jordan in the front seat. Defendant Bennett was sitting in the rear seat of the automobile. Officer Chota testified that after he had ordered the three defendants out of the car he began to question them as to what they were doing there and where they were coming from. The answers given failed to satisfy the two officers. The defendants stated that they were going home, and gave to the officers as their home address a location that was in a southeasterly direction from where their car had been stopped. At the time of the arrest the defendant’s car had been headed in a northeasterly direction. Officer Chota stated that after he asked the defendants to step out of the car he requested further information from headquarters as to the identity of the robbery suspect mentioned in the earlier report. Officer Chota received additional information to the effect that the suspect “. . . had a sort of grayish plaid topcoat on, and he was male, colored, about six foot, with a .25 caliber steel automatic . . . .” The witness further testified that defendant Jordan, as he saw him at the time of the arrest, was male, colored, and about five eleven in height. After the receipt of the added information the police searched the car and found a .25 caliber automatic fully loaded under the passenger side of the front seat. During the time of the search the defendants were on the sidewalk being watched by other officers who had arrived at the scene.

Police Officer Arnold Sickler also testified at the preliminary hearing. Sickler essentially corroborated the testimony of his fellow officer Chota, except he stated that the defendant’s car had gone through a red light at Western Avenue, not Western Boulevard; that defendant Jordan was wearing a tweed coat, not mentioning the plaid coat referred to by Chota; that the patrol car was moving with the light when they spotted the defendants going through a light, and was not stopped as had been stated by Chota; and finally that there had been no questioning of the defendants prior to the search of the car, whereas Chota had testified to some questioning prior to the search.

At the trial Ronald Anderson testified that he was working alone at a gas station located at 4444 West 55th Street, Chicago, as an attendant, on the night of the robbery. He testified that at about 12:50 a. m., a 1955 blue and white Chevrolet pulled into the gas station with three persons in the car. Jordan got out of the car and asked Anderson to let him into the gas station washroom because the door of the washroom was locked. When Anderson opened the door for him, Jordan pushed Anderson inside and robbed him, taking about Eighteen Dollars of the company’s money. Anderson further testified that at the time of the robbery defendant Bennett was wearing a leather coat, and appeared to be about five nine in height. Jordan was wearing a tweed coat at the time of the robbery. The witness stated that although he had told the grand jury that $23.73 was taken from him he now believed that only $18.20 was taken in the robbery. Anderson further testified that he was unable to identify Bennett as being a participant in the robbery at a lineup held an hour after the robbery. From the witness stand, however, Anderson did identify Bennett as being the driver of the Chevrolet that had been used as a get-away car. He stated that he had recognized Bennett in court the day before he testified. Anderson further testified that he had positively identified Jordan at the lineup held on the night of the robbery, and he was wearing at that time the same tweed coat.

Officer Chota also stated that the three defendants emptied their pockets at the police station and that the total amount of money in the possession of the three defendants was $18.20. He said that the police kept this money, and to his knowledge it was all the money that the defendants had. The defendants had not yet been taken to jail.

Egbert Schrik, a witness for the defense, stated that he was employed by the Cook County Jail on the night of January 9, 1965. On that night he received the valuables possessed by each prisoner as he was checked into the jail. He testified that defendants Jordan, Bennett, and Saunders had between them over Fifteen Dollars when they were checked into the jail.

On appeal it is contended: (1) that defendants’ motion to suppress evidence was improperly denied; (2) that defendants were not proven guilty beyond a reasonable doubt; (3) that prejudicial error occurred in the prosecutor’s accusations of misconduct by a defense attorney ; (4) that the prosecutor used prior statements of his witnesses, made outside of court, to rehabilitate an impeached witness; and (5) that the prosecutor made improper remarks to the bailiffs within the hearing of the jurors regarding the personal comfort of such jurors.

We consider first whether the preliminary motion to suppress as evidence the gun found in the search of defendant’s automobile should have been granted. Defendants contend that the lawfulness of the search of the car depends upon whether or not the radio message identifying the robbery suspect and get-away car raised probable cause for the officers to believe that the three defendants were responsible for the robbery of the gas station. They contend that there was no probable cause for the search, and that failure to suppress the evidence requires that the cause be reversed. Defendants argue that the radio message mentioned only one suspect being present in the car; that because there are many automobiles similar to the one mentioned in the message the report was too general to give grounds for probable cause; and that the description of the defendant was of such a general nature that it could not support an adequate identification of Jordan as having been involved in the perpetration of a felony.

The constitution requires that a search by the police must be reasonable in order to be valid. People v. Watkins, 19 Ill2d 11, 166 NE2d 433. If the search of the car in the instant case was not a reasonable one this court would reverse. Mapp v. Ohio, 367 US 643. The reasonableness of a particular search must be determined in light of the facts and circumstances that confronted the officers making the search. People v. Watkins, 19 Ill2d 11, 166 NE2d 433. The United States Supreme Court in Preston v. United States, 376 US 364, 366, stated: “Our cases make it clear that searches of motorcars must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such searches is admissible (citations omitted) . . .”

The general requirement that a search warrant must be obtained prior to a search of a suspect’s home is relaxed somewhat in the case of a search of an automobile in which the suspect is riding. This holds true “. . . because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 US 132, 153. The search of the automobile must be based upon probable cause, “. . . a knowledge of facts justifying a reasonably prudent person in believing that a crime has been or is being committed, and that evidence thereof is contained in the automobile . . .” People v. Erickson, 31 Ill2d 230, 233, 201 NE2d 422. “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” Carroll v. United States, 267 US 132, 158. See also Brinegar v. United States, 338 US 160.

In People v. Watkins, 19 Ill2d 11, 166 NE2d 433, the defendant was convicted on a charge of possession of policy slips. He contended that the Supreme Court should reverse his conviction because the policy slips introduced into evidence had been obtained in an unconstitutional search, and should therefore have been suppressed. Defendant had initially been arrested for a minor traffic violation prior to the search of his person, and he contended that the search was not a reasonable one incident to an arrest. The Supreme Court held that the minor nature of the offense for which the defendant had been arrested did not warrant the search that took place; therefore, the search could not be considered a reasonable one incident to arrest for a minor traffic violation. The opinion did not mention whether the arrest for the possession violation had preceded or followed the search. The court found, however, that the search did not have to be justified as being incident to an arrest. The police had sufficient knowledge of facts to allow them to proceed with the search on the basis of probable cause “ . . . without relying solely upon the traffic violation.” People v. Watkins, 19 Ill2d 11, 19, 166 NE2d 433. Therefore, the court in Watkins held that a search of an individual stopped for a traffic violation of a minor nature could be upheld as reasonable where the police had sufficient knowledge of facts to give them probable cause, although the same search would be unreasonable and constitutionally invalid as a search incident to an arrest.

In the instant case the police clearly possessed probable cause for the search of the automobile in which defendant Jordan was riding, and the search was a reasonable one well within constitutional requirements. People v. Watkins, 19 Ill2d 11, 166 NE2d 433; People v. Thomas, 31 Ill2d 212, 201 NE2d 413; People v. Zeravich, 30 Ill2d 275, 195 NE2d 612. The factual correlation between the suspect and get-away car as reported in the “look out message” and the appearance of defendant Jordan and the car in which he was riding; the physical proximity of the Chevrolet to the scene of the crime; and the suspicious answers given by the driver when questioned provided a sufficient factual basis for the officers to have probable cause to believe that the three occupants of the car had recently been involved in the reported stick-up. They were therefore entitled to search the car for any evidence of the stick-up as well as for the purpose of insuring their own safety. Carroll v. United States, 267 US 132; People v. Witt, 159 Cal App2d 492, 324 P2d 79.

We find no merit to the argument that the police officers did not have probable cause because there was only one person referred to in the radio report and the car that was searched contained three occupants. Other facts known to the officers were sufficient in themselves to constitute the requisite probable cause. Nor is there any merit to the contention that the testimony of the two officers at the preliminary hearing should be totally discounted because of inconsistencies in their testimony. The inconsistencies were not major ones. Any contradictions in testimony were for the trier of fact to resolve. At most, contradictions of this sort go to the credibility of the witnesses, and this is an issue to be resolved by the trier of fact. People v. Robinson, 30 Ill2d 437, 197 NE2d 45; People v. Grayson, 29 Ill2d 229, 193 NE2d 801.

It is next contended that the defendants were not proven guilty beyond a reasonable doubt because of inadequate identification of the defendants as being the actual participants in the robbery. Defendants argue that the inability of Anderson to identify Bennett at the lineup renders his subsequent identification in court invalid, and also casts a reasonable doubt upon his identification of Jordan at the same lineup. We cannot agree. It is settled law in this state that a positive identification by one credible witness is sufficient to uphold a conviction. People v. Denham, 33 Ill2d 599, 213 NE2d 539. Anderson positively identified Jordan at the lineup held an hour after the robbery and at the trial. He also identified the car in which the defendants were riding at the time of their arrest. The fact that Bennett was not selected by Anderson from the lineup goes only to the weight of his testimony. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730. He did positively identify Bennett at the trial. It was up to the jury to determine the credibility of the witness and the weight to be given to his testimony.

Defendants argue that certain discrepancies in the evidence were of such a material nature so as to raise a reasonable doubt as to their guilt. Anderson testified that to the best of his knowledge he gave Jordan a total of roughly Eighteen Dollars. On cross-examination he stated that the next morning the total loss was found to be $23.73, and that this was the amount he told the grand jury had been taken from him. Officer Chota testified that the three defendants had emptied their pockets in his presence, and between them they had $18.20. However, Egbert Schrik testified that at the time of their internment in the county jail the three defendants still had in their possession an amount in excess of Fifteen Dollars. Defendants also argue that there were discrepancies between the testimony of Anderson as to a tweed coat, the testimony of Officer Chota as to a plaid coat, and a photograph introduced into evidence by the defense showing defendant Jordan in a plaid coat. They also argue that the defendants were incapable of committing the crime because they were too far from the scene of the robbery in light of the testimony as to the time of the robbery, and the testimony as to the time when the defendants were picked up for going through a red light.

These variations in the evidence were brought to the attention of the jury for their consideration with all of the other evidence produced before them. The discrepancies and inconsistencies are of a minor nature. None of the testimony elicited was contrary to the laws of nature or to universal human experience. People v. Coulson, 13 Ill2d 290, 149 NE2d 96. These minor discrepancies and inconsistencies at most affect the credibility of the witnesses involved. People v. Robinson, 30 Ill2d 437, 197 NE2d 45. The conclusions to be drawn from the facts presented in evidence are for the jury unless . . the proof is so unsatisfactory as to justify a reasonable doubt of guilt.” People v. McAfee, 80 Ill App2d 142, 146, 225 NE2d 74. We do not believe that any of the discrepancies or inconsistencies of the testimony at trial were serious enough to warrant our taking the determination of facts away from the jury.

It is further contended that the prosecutor accused the defense counsel of misconduct, and that this accusation deprived the defendant of a fair trial. This occurred during verbal exchanges between the attorneys. We find no useful purpose in detailing the colloquy that took place. We are satisfied that defense counsel invited and provoked these remarks of the prosecutor. People v. Lewis, 25 Ill2d 442, 185 NE2d 254. We have carefully examined the record as to these occurrences, and we are satisfied that no substantial prejudice was suffered by defendants. It is also complained that the prosecutor erroneously attempted to rehabilitate the testimony of Anderson on redirect examination by introducing prior out of court statements made by Anderson in an attempt to corroborate his testimony. We find no error in the procedure of the prosecutor.

Finally it is contended that the trial judge erred in not granting a mistrial when the defense attorney brought to the court’s attention certain instructions given to the bailiffs in the presence of the jury by the prosecutor. On two occasions the prosecutor instructed the bailiffs to tell the jurors they could take their coats off, and on one occasion he instructed them to supply water to the jurors. The defendants argue that this was done by the prosecutor in an attempt to curry favor with the jurors and to unfairly influence them. The prosecutor should not have requested the bailiffs to perform the aforementioned tasks; he should have made his requests directly to the trial judge. However, we note that the trial judge considered the claim of the defense attorney and denied his motion. Such a denial was clearly within the discretion of the trial judge. In the absence of any abuse, exercise of this discretion cannot be held to constitute prejudicial error.

For the above reasons the judgment is affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. JUSTICE ADESKO

text:
    William J. Jovan and Constantine J. Jovan, Administrators of the Estate of James J. Jovan, Deceased, Plaintiffs-Appellees, v. John Starr (a/k/a John Staroyiannis), Defendant and John J. Yowell, Defendant-Appellant.
    Gen. No. M-51,525.
    First District, First Division.
    October 9, 1967.

      Yowell and Cessna, of Chicago, for appellant.
    Simon, Teitelbaum & Wolfberg, of Chicago, for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The administrators of the estate of James N. Jovan brought this action against John Starr (Starr) and John J. Yowell (Yowell) for the return of $2,000 which Starr, acting as agent for plaintiff, had deposited with Yow-ell acting as escrowee. (We shall refer to James N. Jovan as plaintiff.)

The court found the issues against both defendants and entered judgment for the administrators in the sum of $2,000. Defendant Yowell’s motion for a new trial was denied and he now prosecutes this appeal.

On December 30,1957, plaintiff, one Alexander G. Chiagouris (Chiagouris) and Starr entered into an agreement whereby plaintiff and Chiagouris each advanced $2,000 to Starr, and Starr agreed to use the funds as earnest money to attempt to purchase all the outstanding stock of Terrace Restaurant, Inc., (Terrace Inc.,). Plaintiff and Chiagouris were to remain as undisclosed principals of Starr. The agreement provided inter alia that if Terrace Inc., already in financial difficulty, went into bankruptcy prior to Starr’s acquiring the corporation’s stock, the earnest money was to be returned to plaintiff and Chiagouris.

The stock of Terrace Inc., was being held by defendant Yowell, the corporation’s attorney. Starr met with Yow-ell and negotiated for the purchase of the stock. An agreement, in the form of a letter, addressed to the then stockholders of Terrace Inc., and dated December 31, 1957, was then executed. One of those stockholders was James N. Jovan, one of Starr’s undisclosed principals and plaintiff herein.

The letter agreement first stated the price to be paid for the stock and then provided:

“I have deposited with John J. Yowell the sum of $4,000 as earnest money and to apply on the purchase price.
“In the event that the creditors of the corporation are unwilling to make a settlement of their claims and the corporation is placed in bankruptcy, said earnest money is to be returned to me.
Yours very truly,
/s/ John Starr
“Received check on Pullman Trust & Savings Bank in the sum of $4000.00 signed by John Starr, to be held by me in accordance with the above letter.
/s/ John J. Yowell by L. J. Vance”

(L. J. Vance was an employee of Yowell’s and there is no question that she was authorized to sign his name.)

Subsequently, in March 1958, Terrace Inc., was involuntarily placed in bankrupty. Although at the trial there was some testimony as to whether Starr had defaulted prior to the bankruptcy, this issue has been abandoned on appeal. Defendant Yowell contends that: (1) plaintiff’s claim is barred by the Statute of Limitations and; (2) that he has a retaining lien on the earnest money for his legal services to Terrace Inc., plaintiff being a stockholder of the corporation.

With respect to the suit being barred by the Statute of Limitations, Yowell argues that absent a writing signed by defendant Yowell, plaintiff’s claim, if any, must be controlled by the five year statute of limitations. (Ill Rev Stats 1965, c 83, § 16.) Since the money was deposited with Yowell on December 31, 1957, and the instant action was not commenced until March 20, 1963, it is barred. The only writing signed by Yowell is the letter agreement executed by Starr. Since this does not mention plaintiff, it cannot be relied upon by him to bring this action within the ten year statute of limitations. (Ill Rev Stats 1965, c 83, § 17.)

We do not agree with Yowell’s analysis. The letter agreement signed by Yowell is a sufficient writing to place a claim for a return of the earnest money under the ten year statute of limitations. The fact that plaintiff is not mentioned in the letter agreement is immaterial. In Saladin v. Mitchell, 45 Ill 79 (1867), our Supreme Court stated:

“It is insisted by the plaintiff in error, that the only contract of sale is the one . . . made by another person, to wit, T. D. Hall. He contends it was a contract with Hall, and he alone can maintain an action for its breach. The authority referred to on this point in 2 Smith’s Leading Cases, 358, applies to cases where a purchase is made by an agent, his principal not being disclosed. In such cases it is the established rule, where the contract is not under seal, and made by an agent in Ms own name for an undisclosed principal, either the agent or the principal may sue on it.” (P 82.)

See also Mechem, Law of Agency, Fourth Edition, § 150 (1952):

“The rights of the undisclosed principal, and the method of their enforcement, differ very little from those of the disclosed principal. He sues in his own name and right; when his existence is disclosed it is in general the obligation of the third party to treat him as in all regards the principal. He may sue for breach of the contract and ordinarily, as will be seen later, T may not successfully set up as a defense that he knew neither of P’s existence nor his connection with the contract.”

The other point raised by defendant Yowell is that plaintiff, as a stockholder in Terrace Inc., was obligated to pay Yowell his fees for legal services to the Corporation and had in fact agreed to pay such fees. Consequently, Yowell had a retaining lien on the funds which came into his possession through plaintiff’s agent.

We recognize that attorneys’ liens are classified as general (or retaining) liens and charging (or special) liens. The latter is a lien upon that which is recovered by an attorney for his client through his professional services and is generally covered by the Attorney’s Lien Act. (Ill Rev Stats 1965, c 13, § 14.) This type of lien is not involved in the instant cause.

The retaining lien was first recognized in Illinois in Sanders v. Seelye, 128 Ill 631, 21 NE 601 (1889):

“(T)his retaining lien exists on all papers or documents of the client placed in the attorney’s hands in his professional character or in the course of his employment.” (Pp 637-638.)

In the case of Needham v. Voliva, 191 Ill App 256 (1915), this court stated:

“(A) possessory or retaining lien ... is defined as the attorney’s right to retain possession of property belonging to his client which comes into his hands within the scope of his employment until his charges are paid. Weed Sewing Mach. Co. v. Boutelle, 56 Vt 570. If the relationship of attorney and client exists, the possessory lien will cover in general any property of any kind belonging to the client and held by the attorney. It includes ordinary legal documents of the client in the possession of the attorney, or money collected by the attorney. 4 Cyc 1015. The possessory lien is a right merely to retain and cannot be actively enforced.” (Citations omitted.) (P 258.)

From the above citations, it appears to us that it is essential to the existence of a retaining lien that the papers or securities be received by the attorney pursuant to an attorney-client relationship. Thus the question which must be answered in the instant case is whether the funds Yowell received from Starr were in furtherance of Yowell’s professional relationship with plaintiff. We believe the evidence requires that this question be answered in the negative.

Plaintiff had entered into a joint venture with two other persons. Starr was to act on their behalf. The money Starr deposited with defendant Yowell was from all outward appearances Starr’s money. Yowell admitted that he was not aware until a later date that plaintiff was in any manner connected with Starr. It is thus clear with regard to the deposit of money, that no attorney-client relationship existed between plaintiff and Yowell. Furthermore, Yowell held the money only in the capacity of escrowee. Under the letter agreement he was either to deliver the stock to Starr or return his earnest money-deposit. Although Yowell may have been performing some legal services, in relation to the earnest money deposit, he was only a depository. Therefore, Yowell had no right to claim a retaining lien on the earnest money deposit and such funds must be returned to plaintiff’s administrators.

Our attention is directed to the recent case of Estate of Bort, 75 Ill App2d 322, 221 NE2d 24 (1966), where an attorney who held his client’s money was held to be entitled to a hearing on his claim for fees for legal services. It is clear that there was an attorney-client relationship between the parties in the Bort case. Therefore, Bort is inapplicable to the instant cause since such a relationship did not exist with respect to the earnest money.

In plaintiff’s brief it is claimed that YowelPs refusal to return the earnest money was a conversion and the trial judge erred in not allowing him interest from the date of the conversion. This cross-appeal is governed by Supreme Court Rule 35 (Ill Rev Stats 1965, c 110, § 101.35) which provides as follows:

“Each appellee who desires to prosecute a cross appeal from all or any part of the judgment, decision, order or decree, . . . shall within 10 days after service upon him of notice of appeal, serve a notice upon each party or attorney or firm of attorneys who signed the notice of appeal, and upon each appellee, person or officer entitled to receive notice of an appeal, and file a copy thereof in the trial court.”

In Bawden v. Furlong, 16 Ill App2d 174, 147 NE2d 889 (1958), it was stated:

“An appellee who desires to prosecute a cross appeal from all or any part of an order must serve and file a notice of cross appeal; the notice of cross appeal must be substantially in the form required for an appellant’s notice of appeal; the notice must specify and describe the order appealed from and if the cross appeal is from a part thereof only it must specify which part: Supreme Court Rules 33 and 35, — Ch 110 Ill Rev Stats, 1955, pars 101.33, 101.35. There seems to be no way provided for an appellee to appeal from an order other than by cross appeal: Heine v. Degen (1936) 362 Ill 357. A notice of cross appeal is mandatory if the appellee desires to appeal, and unless given the matters sought to be reviewed are not preserved for review and decision by this Court: Apperson v. Hartford Accident & Indemnity Co. (1944) 322 Ill App 485; Scribner v. Village of Downers Grove (1940) 372 Ill 614; Bryant v. Lakeside Galleries, Inc. (1949) 402 Ill 466; Holmes v. Rolando (1943) 320 Ill App 475.” (P 185.)

The record before us does not disclose any notice of cross-appeal and therefore the issue of whether interest is allowable is not properly before us.

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

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    Alyce D. Till, Plaintiff-Appellee, v. William J. Till, Defendant, Richard E. Steinbrecher, Impleaded Defendant-Appellant.
    Gen. No. 51,595.
    First District, First Division.
    October 9, 1967.
    Rehearing denied November 6, 1967.
    Bernard V. Narusis, of Crystal Lake, for appellant.

      Irving Goodman and Louis Z. Grant, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

In October, 1964, Alyce D. Till, appellee, filed a petition requesting a rule to show cause to issue against her former husband, William J. Till, for his failure to make the child support payments required by the decree divorcing the parties. In February, 1965, Clearbrook Homes, Inc., which was indebted to William J. Till, on a certain account receivable, was impleaded as a party defendant and ordered to pay those funds in its possession belonging to William J. Till to appellee. Clearbrook Homes, Inc., filed an answer in which it stated that William J. Till had assigned the account receivable to Richard E. Steinbrecher, who was then impleaded as a party defendant and the petition prayed that the alleged assignment to Steinbrecher be declared void as a fraudulent act performed to defeat payment of child support. In May, 1966, a hearing was held and the trial court ruled that the assignment was void and of no effect and further ordered that the funds now due to William J. Till from Clearbrook Homes, Inc., be delivered to appellee as partial payment of the child support arrearages. Richard E. Steinbrecher, who was the attorney for William J. Till and assignee of the account receivable, prosecutes this appeal.

Appellant argues initially that the petition was insufficient in that it did not allege all the essential elements of fraud. No motion to strike, or for judgment on the pleadings, was presented by the appellant. The only pleading filed was his answer to the petition. Appellant thus waived his right to assert on this appeal the insufficiency of the pleadings. Ravlin v. Chicago, A. & DeK. R. Co., 297 Ill 130, 129 NE 730 (1921); Anderson v. Anderson, 30 Ill App2d 345, 174 NE2d 716 (1961).

Appellant’s theory on the merits of the case is that the burden of proof was on appellee. She failed to sustain that burden because there is no evidence that the assignment was fraudulent. One key factor relied upon by appellant is that after the trial judge indicated he would grant the petition to set aside the assignment, he instructed counsel in preparing the order to make, “no reference or findings or determination on the issues of fraud or collusion, any fraud at all, because the Court is not so holding.”

The pleadings and testimony reveal the following factual situation. The Tills were divorced on November 4, 1963. The divorce decree provided that William J. Till pay to appellee the sum of $50 per week as and for child support. However, as of October 4, 1964, the child support payments were no longer forthcoming. At the time of the instant hearing the arrearages amounted to approximately $4,000.

The evidence further shows that Clearbrook Homes, Inc., was indebted to Till Construction Company on an account receivable. In August, 1964, Till Construction assigned all its right, title and interest in said account to William J. Till.

In mid-October, 1964, William J. Till appeared in court pursuant to appellee’s petition for a rule to show cause for failure to pay child support. Till was represented by appellant’s law offices. Within two weeks after appearing in court, Till executed an assignment of his interest in the Clearbrook Homes, Inc. account to appellant and, according to appellant, Till left the State of Illinois.

The account receivable with Clearbrook Homes, Inc., had a face value of $16,500. At the time of the hearing in May, 1966, the amount due was approximately $2,357. Additional sums might accrue with the passage of time.

There are two distinct classes of cases whereby a conveyance by a debtor may be set aside as fraudulent vis-a-vis creditors. When there is consideration for the conveyance, the creditor must prove that there was an actual intent to defraud, hinder, or delay creditors. In those cases where there is no consideration, or a grossly inadequate consideration, the transfer is deemed to he voluntary. If it appears that the rights of creditors directly tend to be or are impaired, the question of actual fraud or fraudulent intent is immaterial. The fraud is presumed from the circumstances. The principle involved is that one must be just before he is generous. If the transfer impairs the rights of creditors, this principle is violated and there is what is usually referred to as a “fraud in law.” Birney v. Solomon, 348 Ill 410, 181 NE 318 (1932); Wilkey v. Wax, 82 Ill App2d 67, 225 NE2d 813 (1967); Second Nat. Bank of Robinson v. Jones, 309 Ill App 358, 33 NE2d 732 (1941).

Appellee demonstrated that there was an existing debt at the time of the assignment to appellant. She also alleged, and appellant admitted in his answer and on the witness stand, that William J. Till had left the State of Illinois, thus in effect rendering him unable to pay his indebtedness. Cf. State Bank of Clinton v. Barnett, 250 Ill 312, 95 NE 178 (1911). As we view the instant situation it is as if Till were rendered insolvent. In light of the circumstances of the assignment, the case is properly classified as one of “fraud in law.” This explains the reason for the trial judge’s comment that he was making no finding of “fraud or collusion” since such finding is unnecessary.

To require that appellee prove actual fraud, the burden is upon the appellant to prove the consideration for the assignment and dispel the implication in law of fraud. Thompson v. Williams, 6 Ill2d 208, 127 NE2d 457 (1955); Birney v. Solomon, supra.

Appellant argues that the assignment was made to pay him for legal services. The only evidence of this was his statement that Till owed him $3,770. On cross-examination, however, appellant could not remember over what period of time the legal services were rendered for which the fee was due, nor did he enlighten the court what those services were. From the record, all we know is that someone from appellant’s offices appeared in court with Till on the return of rule to show cause in October, 1964.

In Crain v. Gould, 46 Ill 293 (1867), a client had placed funds in his attorney’s hands. A creditor of the client attempted to garnish those funds. The court held in favor of the garnishor and the attorney appealed. The Supreme Court affirmed the trial court’s ruling and stated:

“It would be a fraud upon creditors to permit a debtor to place his property beyond their reach, by depositing it with an attorney to be held nominally for future services to be rendered in whatever litigation the debtor might be engaged.
“. . . It was the duty of appellant to state what sum, in his opinion, his past services were worth, and what would be a proper fee for such services as he had placed himself under an obligation to render, and the court would allow him to retain in his hands a reasonable compensation therefor. . . . But the answer furnished no data upon which the court could decide that the fees, in any contingency within the range of the retainer, would amount to the sum in Crain’s hands. If by such an answer, he could retain $1,100 from creditors, he might retain ten times that sum.”

Appellant’s answer to the petition did not set forth that the assignment from Till was for payment of attorney’s fees. Only by his unsupported statement on the witness stand did he claim a fee due and owing. As in the Crain case, no data of any kind was offered to the court to support this claim.

Under the facts of this case, we conclude that the trial court properly held the circumstances to give rise to a “fraud in law” situation, and was correct in setting aside the assignment as fraudulent and ordering the funds paid over to appellee for the payment of child support.

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    Ben C. Harvey, Plaintiff-Appellant, v. Orville Lippens, Defendant-Appellee.
    Gen. No. 51,604.
    First District, First Division.
    October 9, 1967.

      Morton & Yellin, of Chicago (Jerrold J. Ezgur and James R. Meltreger, of counsel), for appellant.
    Berchem, Schwantes & Thuma, of Chicago (E. Douglas Schwantes and James O. Latturner, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff brought suit to recover damages from defendant for personal injuries. A motion by defendant to dismiss the complaint on the grounds that the plaintiff failed to use reasonable diligence in obtaining service on him was brought under Supreme Court Rule 4(2). The motion was denied. After the decision of this court in Caliendo v. Public Taxi Service, Inc., 70 Ill App2d 86, 217 NE2d 369, defendant moved for a rehearing on the basis of that opinion. The trial court granted the petition for a rehearing. It entered a new order, finding “that the plaintiff has failed to show reasonable diligence to obtain service on the defendant”; the court vacated its former ruling and ordered the plaintiff’s suit dismissed with prejudice. Plaintiff appeals from this order of dismissal. No questions are raised on the pleadings.

Plaintiff contends on appeal that (1) the facts of the instant case distinguish it from the Caliendo decision, thus making the principles enunciated in that case inapplicable to the case at bar; (2) that his failure to obtain service of process upon the defendant at an earlier time was excusable in that the defendant was not properly amenable to such service; (3) that even a long delay in service of process cannot result in a dismissal under Rule 4 (2), when the plaintiff presents some excuse or justification for the delay; and (4) that the fact that he eventually obtained service of process strongly supports his contention that he exercised reasonable diligence.

The record reveals that an automobile collision occurred between the parties on November 12,1960. Plaintiff filed his complaint on November 9, 1962, three days before the applicable statute of limitations would have run. A summons was issued in the name of the defendant at 1906 Dayton Street, Chicago, Illinois; the summons was returned “not found” without any additional information as to the whereabouts of the defendant. An alias summons was placed with the sheriff on January 7, 1966, and the defendant was served on January 14,1966.

When defendant presented his motion he attached certain affidavits to the effect that his name, address, and telephone number had at all times following the accident been listed in the Chicago Telephone Directory; that at the time he moved to his present address in October of 1962 he notified the Post Office of his change of address, and they forwarded all of his mail; that his wife’s parents continued to reside at his old address of 1901 Dayton Street after he moved, and could have answered any inquiries as to his new address. All of the occupants of the 1901 Dayton building also stated in supplementary affidavits that after the time of the filing of the suit no one had inquired of them as to the whereabouts of the defendant. Also attached to the motion was an affidavit by the manager of the Directory Library, Illinois Bell Telephone Company, to the effect that the defendant’s name and telephone number were listed in the Directory of June, 1962, and his residence was listed as 1901 North Dayton; and that the defendant’s name and telephone number were also listed in all subsequent directories up to and including the Directory of June, 1965, and his residence in these directories was listed as 5346 North Neva. At the hearing the defendant also filed a deposition of a United States Post Office employee, to the effect that the defendant had filed a change-of-address card.

In opposition to the motion to dismiss the plaintiff filed the affidavit of his attorney to the effect that a summons was issued to serve the defendant at the address of 1901 North Dayton, and was returned “not found”; that a search had been undertaken to locate the defendant, and that the search had been unsuccessful; that attempts had been made to locate the defendant by writing letters to the defendant at 1901 North Dayton, and an investigator had been sent to that address; that a certain telephone number “was given” as the telephone number of the defendant, however, upon calling the number, “. . . we were told that this number was not his number, nor did the people at this number have knowledge of the defendant.” In a supplemental affidavit the plaintiff’s attorney also stated that by consulting the Chicago Street Guide for 1901 North Dayton he obtained a phone number which was listed under the name of the defendant’s father-in-law, Mr. Perlick, and that he was told by the person answering the phone “that the defendant did not reside at that address and they had no knowledge whatsoever of the defendant.”

The trial judge made a finding of fact that the defendant was, at all times during the pendency of the suit, amenable to the service of process. Before the trial judge there were defendant’s uncontroverted affidavits to the effect that defendant left a forwarding address when he moved from 1901 North Dayton, which was prior to the initial attempt to serve him with process; that at no time did the defendant leave the city; and that at all times the defendant was listed in the Chicago Telephone Directory. Plaintiff’s statements per affidavit were of a general nature; specific averments of fact as to the nature of the defendant’s supposed avoidance of service were lacking. The findings of fact of a trial court will not be disturbed on appeal unless the determination was clearly against the weight of the evidence. Frank v. Hayes, 25 Ill App2d 99, 166 NE2d 283.

Supreme Court Rule 4(2) (Ill Rev Stats, c 110, § 101.4 (2)) provides:

If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed on the application of any defendant or on the courts own motion.

In the Caliendo case, a personal injury action, service was not obtained until two and one-half years had passed from the date of the filing of the complaint. The summons delivered to the sheriff contained the correct address, but was incomplete in that it failed to specify the room number in which the defendant could be found. The summons was returned “not found.” The defendant moved to dismiss the complaint on the basis of Rule 4(2), and his motion was sustained. This court in affirming the dismissal stressed the fact that the diligence required of a plaintiff in the service of process is to be ascertained in connection with a standard of reasonableness. In the Caliendo case twenty months had elapsed since the running of the applicable statute of limitations, and the court considered this a factor to be taken into consideration by the trial judge in determining reasonableness.

The finding of the judge that the defendant had been amenable to the service of process, at all times subsequent to the filing of the suit, was not manifestly against the weight of the evidence. Indeed it was amply supported by the evidence. It was within the province of the trial court to draw inferences and conclusions from the evidence introduced, and we will not substitute our judgment for that of the trier of fact.

The evidence introduced at trial clearly sustains the finding that the plaintiff did not use reasonable diligence in the service of process. Plaintiff’s affidavits make general references to visits by an investigator to the defendant’s address; however, defendant filed four affidavits of the residents in the building occupied by defendant prior to his moving to the address on Neva, and they all stated specifically that they had not been contacted by anyone concerning the whereabouts of the defendant. Plaintiff’s affidavits refer to a phone call to the number of defendant’s father-in-law; however, the father-in-law states in an affidavit that he talked to no one concerning the new address of his son-in-law. Had plaintiff looked for defendant’s name in the phone directory or had he sent a certified letter addressed to the defendant’s former place of residence with a return receipt requested, the plaintiff would have been able to ascertain the home address of the defendant. Finally, the record shows that the plaintiff filed his action within three days of the running of the applicable two year statute of limitation, and no alias summons was placed for service for more than three years.

For the above reasons the order of the Circuit Court was proper and warranted and therefore is affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J., concur.

      The above rule is now Rule 103(b), but has not been changed except for the addition of the phrase “with or without prejudice” after the word “dismissed.” Because the record and the briefs refer to it as Rule 4(2), we shall refer to it as such throughout this opinion.


text:
    Jack Perlis, Plaintiff-Appellee, v. Exchange National Bank of Chicago, as Trustee Under Trust No. 5352, Rose Zittenfield, et al., Defendants. On Appeal of Rose Zittenfield, Defendant-Appellant.
    Gen. No. 51,735.
    First District, First Division.
    October 16, 1967.
    Rehearing denied November 6, 1967.
    Nathan Shefner, of Chicago, for appellant.
    Rudnick & Wolfe, of Chicago (Perry J. Snyderman and Lester D. Foreman, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant Eose Zittenfield appeals from the denial of her motion for the payment to her by plaintiff of reasonable attorney’s fees, pursuant to section 41 of the Civil Practice Act.

The court dismissed plaintiff’s action for specific performance, after striking plaintiff’s complaint and an amended complaint. It is defendant’s theory that plaintiff’s action “was without any basis or foundation in law and that he should, therefore, be required to pay the reasonable attorney’s fees incurred by defendant in defending an untenable and baseless suit.”

On May 4, 1966, plaintiff filed a two-count complaint against the Exchange National Bank of Chicago, as trustee under trust No. 5352, and Henry D. Klopfer. In substance, plaintiff alleged that in response to a newspaper advertisement, he made contact with Henry D. Klopfer, who represented himself to be the agent of the owner of a parcel of real estate. Plaintiff inspected the premises with Klopfer, and at the conclusion of the inspection an “Agreement to Purchase” was executed by the plaintiff and Klopfer, who signed “As Agent for Owner.” The agreement did not contain the name of the owner.

Subsequent to the execution of the agreement, Klopfer informed plaintiff that the defendant trustee no longer desired to sell the real estate and would not make a conveyance to plaintiff. In Count I, plaintiff sought specific performance by the defendant trustee and Klopfer. In Count II, plaintiff sought damages from Klopfer for the alleged misrepresentation that he was “the duly authorized agent” for the purpose of selling the real estate in question.

On May 17, 1966, Eose Zittenfield, as sole beneficiary of trust No. 5352, was given leave to file an intervening petition to be made a party defendant and to file a motion to strike Count I of the complaint. The intervening petition included an allegation that Klopfer was never authorized by either her or the trustee to enter into any contract for the sale of the trust property, and the signing by Klopfer of the agreement to purchase “was without petitioner’s authorization, knowledge or consent.” The motion to strike Count I was allowed, and plaintiff was given leave to file an amended complaint.

On June 29, 1966, plaintiff filed an amended two-count complaint, in which Rose Zittenfield was made an additional party defendant. Count I of the amended complaint contained substantially the same allegations as Count I of the original complaint, but included an additional allegation that defendant Zittenfield had retained Klopfer as her agent both for the leasing and collection of rents for the apartments in the building in question. Furthermore, the allegation stated that Klopfer, under the direction of Zittenfield and with the acquiescence of the defendant trustee, was authorized to seek a purchaser and contract with him for the sale of the building. Count II again sought damages from Klopfer for his alleged misrepresentation of authority to sell the premises.

Subsequently, defendant Zittenfield moved to strike Count I of the amended complaint, primarily on the basis that the “Agreement to Purchase” was merely an offer to purchase and provided for the execution of the “usual sale contract,” and also that Count I of the amended complaint contained no allegation that Klopfer was authorized in writing to execute any contract for the sale of the premises, nor was it alleged that the trustee or defendant Zittenfield “ever ratified in writing the purported agent’s act in executing the Agreement to Purchase ‘as agent for owner,’ contrary to the requirements of the Statute of Frauds (Chapter 59, section 2, Illinois Revised Statutes).”

Defendant Zittenfield also moved for the assessment of reasonable attorney’s fees under section 41 of the Civil Practice Act on the grounds that the action for specific performance was brought without any legal foundation and that plaintiff made no investigation to determine the ownership of the premises “at or prior to his signing the Agreement to Purchase,” and an inquiry would have informed plaintiff that Klopfer had no authority from the owners, legal or equitable, to either negotiate the sale or to execute any agreement covering the subject property.

The court struck Count I of the amended complaint and dismissed the cause as to defendant Zittenfield and the defendant trustee. After a hearing, the court denied defendant’s motion for attorney’s fees.

Section 41 of the Civil Practice Act covers “allegations and denials, made without reasonable cause and not in good faith, and found to be untrue . . . .” In Greengard v. Cooper, 78 Ill App2d 86, 221 NE2d 775 (1966), it is said (p 89):

“Section 41 is an attempt by the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit. . . . Allowance of attorney’s fees under this section is discretionary. The trial court can exercise that discretion only when the record discloses evidence of bad faith on the part of the pleader.”

In Horween v. Dubner, 68 Ill App2d 309, 216 NE2d 288 (1965), it is said (p 320):

“It must be assumed that attorneys in filing pleadings, have due regard for their duties and responsibilities as officer of the court. Attorneys in filing pleadings are permitted to exercise a broad discretion, based on honest judgment, from the facts presented to them.”

As noted, defendant’s motion for attorney’s fees charged that plaintiff’s action against her and the trustee “was brought without any legal foundation.” No claim was made that any allegations of the plaintiff were untrue or were found to be untrue. Defendant’s motion to strike, as sustained by the court, rested on the premise that the “Agreement to Purchase” was merely an offer to purchase, and that there was no allegation in the amended complaint that Klopfer was authorized in writing by either the trustee or the beneficial owner to execute any contract for the sale of the premises, or that either the trustee or defendant Zittenfield “ever ratified in writing the purported agent’s act.”

From the facts well pleaded in the amended complaint and admitted by defendant’s motion to strike, it may be reasonably inferred there was a relationship between the three defendants concerning the subject property, from which the trial court, in the exercise of its discretion, could fairly determine that the allegations of plaintiff were made in good faith, although they were not a sufficient basis for specific performance.

As we are not persuaded that this record affords justification for a finding of bad faith on the part of plaintiff, we conclude that the trial court properly denied defendant’s motion for relief under section 41. The order of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    Parkside Realty Co., a Corporation, and Peter Niemiro, President, Plaintiff-Appellees, v. License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendant, and Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendant-Appellant.
    Gen. No. 51,249.
    First District, First Division.
    October 30, 1967.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellant.
    No brief filed or appearance made in behalf of appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The Local Liquor Control Commissioner of the City of Chicago revoked the liquor license of Parkside Realty Company. The revocation was sustained by the License Appeal Commission. An appeal was taken by the licensee to the Circuit Court of Cook County which initially affirmed the order of the License Appeal Commission. One week later, the court vacated its order and reversed the decision of the License Appeal Commission. The Local Liquor Control Commissioner now seeks to reverse the court’s second order.

The Commissioner has filed his brief and abstract and complied with all the statutory requirements and rules of this court for prosecuting an appeal. No appearance or brief has been filed by appellees. This failure by appellees to comply with the rules of this court makes it unnecessary for us to discuss the case in full and we therefore reverse the Circuit Court of Cook County and order that the decision of the License Appeal Commission and the Local Liquor Control Commissioner be affirmed.

Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1964); 541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964); C. I. T. Corp. v. Blackwell, 281 Ill App 504 (1935).

Judgment reversed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Essau Harges, Defendant-Appellant.
    Gen. No. 51,325.
    First District, First Division.
    October 30, 1967.

      Irving Bronstein, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Essau Harges, was charged with (1) negligent driving; (2) driving without an operator’s license, and (8) operating a vehicle while under the influence of intoxicating liquor. The jury found the defendant not guilty of negligent driving and of driving without an operator’s license, but found him guilty of operating a vehicle while under the influence of intoxicating liquor. Upon judgment on the verdict, the defendant was sentenced to thirty days imprisonment, and he appeals.

The defendant contends, on appeal, that (1) the court erred in permitting the complaint to be amended; (2) that testimony of a breathalizer test was admitted without proper foundation; (3) that the verdict was contrary to the weight of the testimony; (4) that the court exhibited partiality in favor of the state; (5) that the tactics of the prosecutor were prejudicial and deprived him of a fair trial; (6) that the court permitted an untrue inference to be drawn by the jury in that it allowed the jury to believe that the defendant would not be imprisoned if a verdict of guilty was to be returned; (7) that the court failed to have a sworn officer in charge of the jury; and (8) that defense counsel was not permitted to poll the jury.

We will only briefly summarize the testimony elicited at trial as to the factual occurrences involved because we have decided to reverse and remand the case for a new trial. On the evening of February 26, 1965, Task Force Officers Young and Jones were patrolling in the area of Madison Street and Homan. Both officers testified at trial that as the defendant made a left turn, from Madison to Homan, he straddled the cement divider in the middle of Homan Avenue with his car. They followed the defendant’s car into an alley behind 3300 West Monroe Street where the defendant stopped his car; the two officers then approached the defendant’s car and found him sitting in the front seat with one, Frank Black. Officer Young testified that after he had informed the defendant of his traffic violation, he detected “an odor of alcoholic beverage on the Defendant.” The defendant was then taken to the police station where he was given various tests, including a breathalizer examination, to determine the state of his sobriety. The breathalizer test showed a reading point .180 percent blood alcohol.

The defendant’s version of the events leading up to his arrest for driving under the influence of intoxicating liquor was as follows: He had not been driving his car prior to his arrest, but rather he and Frank Black had purchased two quarts of beer and some whiskey and then consumed it in his car while the car was parked in the rear of his house; the police approached his car, asked him what he was doing there, and stated “it seems like you are drunk”; the police then asked for a bribe, and upon the defendant’s refusal of this request he was arrested.

We are in accord with the defendant’s contention that he was deprived of a fair trial by prejudicial tactics of the prosecutor during the course of the trial. The prosecutor asked the defendant, on cross-examination, about the events that occurred subsequent to his arrest, and in particular about what transpired in the Fillmore Police Station:

“Q. What did you observe at the Fillmore Police Station, did you see anything on the wall ?
“A. Some signs in regard to the law, and it said something about your rights to legal counsel.
“Q. Have you ever seen Fillmore Station before?
“A. I have, do you mean before I was arrested ?
“Q. At any other time ?
“Mr. Bronstein: Objection to counsel’s speech.
“The Court: Sustained.
“Mr. Davidson (prosecutor): What is he objecting to?
“The Court: He is objecting to him asking has he seen Fillmore Police Station before.
“Mr. Davidson: So you sustained the objection.
“The Court: That is correct.”

The State, in its brief, insists that the question asked of the defendant — “Have you ever seen Fillmore Station before ?” — , when it stands alone, is totally vague and ambiguous; the defendant’s claim that this question suggested to the jury defendant’s prior arrest record is pure conjecture; and moreover, that the court sustained counsel’s objection to this question, and therefore no error was committed. The evidence in this case was of such a character that the prosecutor’s question relating to a prior arrest of the defendant was clearly improper; this question represented an obvious attempt by the prosecution to bring to the attention of the jury the fact that the defendant had been to the Fillmore Station on a prior arrest. We can see no other purpose for this inquiry. It had no bearing on the question of guilt. It was otherwise irrelevant to and unconnected with any of the testimony previously given by the defendant on direct examination. Conduct such as that exhibited by the prosecutor in the instant case has been condemned on many occasions. The error is not cured by the court sustaining an objection. People v. Black, 317 Ill 603, 614, 148 NE 281. As the Supreme Court stated in People v. Decker, 310 Ill 234, 141 NE 710, “There is no question more damaging to a defendant with a jury than one that suggests or intimates that he is a criminal or has been charged with criminal offenses.’ (P 243.) Such conduct is clearly reversible error.

Other instances of improper conduct by the prosecutor occurred during the course of the trial. Officer Alvin Young was called on rebuttal and testified that the first time he had heard of the bribery charge advanced by the defendant was when he was called in by the I. I. D. Section of the Police Investigation Unit. Officer Young also testified that he had been in court with the defendant on three occasions, “and none of this was brought out.” This testimony was not proper rebuttal testimony. It was improper for the officer to refer to an investigation by the I. I. D. and to previous appearances he might have had with the defendant in court. At a conference in chambers following this testimony by Officer Young the trial judge stated, “I think he did seriously prejudice the minds of the jury.” Although it appears from the record that defense counsel withdrew his original request for a mistrial because of the rebuttal testimony in question, there can be no doubt that the testimony of Officer Young had a prejudicial effect on the defendant’s case in the minds of the jury.

The prosecutor also was guilty of improper and prejudiced argument to the jury. An example of this is when the prosecutor stated, “when someone is arrested for drunken driving the arrests come through our office, and this is where it begins; part of our job if there were some indications of bribery some action would have been taken here . . . forget about the alleged bribery, it is not before you.” We recognize that considerable latitude must be allowed in argument, but it is elementary that it is beyond the realm of fair argument to inform the jury that the State’s Attorney’s office had investigated the bribery charge and found there was nothing to it. It was for the jury to determine that issue without these prejudicial remarks and the court should have, on its own motion, stopped the argument and directed the jury not to consider it. People v. Moore, 9 Ill2d 224, 232,137 NE2d 246.

We deem it necessary, since the cause must be tried again, to consider the contention of defendant that the breathalizer testimony was admitted without proper foundation. Chapter 95%, par 144 § 47 (b) of the Illinois Revised Statute sanctions the use of the “breathalizer test” and makes the results of the examination admissible in evidence. It is common knowledge that the breathalizer is widely used at present. The defendant argues that there was insufficient proof of the scientific accuracy of the machine to eliminate the possibility of inaccurate results coming from some malfunction based on chemical failure. Officer Shaughnessy testified that he brought the breathalizer machine to the station and performed the test. He described the various procedures he used for the purpose of operating the machine, demonstrating to the satisfaction of the trial judge that he was competent to operate the machine. He said that the breathalizer was in good working order.

Officer Shaughnessy testified that he attended a forty-four hour course in the use of the breathalizer machine at Indiana University, and received a certificate upon completion of the course. He stated that he had administered over one hundred tests for the purpose of determining the amount of alcohol in the bloodstream. The competency of Officer Shaughnessy to testify as an expert witness was a question of fact for the trial judge and was a matter largely within his discretion. It is sufficient that the expert is familiar with the device and its operation, and the weight to be given to the question of the expert’s competency is for the trier of fact. Any questions raised as to the proper functioning of the device are likewise to be resolved by the trier of fact. People v. Abdallah, 82 Ill App2d 312, 226 NE2d 408. We find from the record that the trial judge correctly permitted the testimony concerning the breathalizer test to be considered by the jury.

The court did not err in permitting the complaint to be amended as charged. We need not decide the matters of the trial procedure that have been complained of on appeal. We find that the defendant did not receive a fair trial because of unfair and prejudicial tactics resorted to by the prosecution at trial, and therefore this cause is reversed and remanded for a new trial.

Reversed and remanded.

MURPHY, P. J. and ADESKO, J., concur.