author: Mr. JUSTICE CRERS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jessie Clyde Glispie, Defendant-Appellant.
    (No. 70-148;
    Fifth District
    October 22, 1971.
    Paul Rradley, of Defender Project, of Mount Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Eelleville, for the People.
   Mr. JUSTICE CRERS

delivered the opinion of the court:

Defendant, Jessie Clyde Glispie, was convicted of rape and burglary after a jury trial in the circuit court of St. Clair County, Illinois and was sentenced to the penitentiary for a term of not less than 99 nor more 100 years. On appeal he contends that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of either rape or burglary. He also argues that he was denied a fair and impartial trial by virtue of certain inflammatory and prejudicial comments and statements made by the State’s Attorney in his closing argument. He assigns as further error the court’s giving of an instruction defining reasonable doubt and that the sentence was excessive.

We will turn first to defendant’s contention that the trial court committed reversible error when it gave a State’s instruction defining reasonable doubt. The instruction in question was as follows: “The court instructs the jury that a doubt to justify an acquittal must be reasonable, and it must arise from a candid and impartial consideration of all the evidence in the case; and is such that, were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.”

The Supreme Court recently held that giving an instruction almost identical to the one given in this case was reversible error. In reaching this determination the court observed that it had “[Rjepeatedly held that the legal concept of reasonable doubt needs no definition, and that where an involved instruction on the concept is given it may be deemed prejudicial error. * * * It is patent that the controversial instruction No. 2 included not only an elaborate definition of reasonable doubt, but it also implied that the law requires that an acquittal be justified in violation of the elementary precept of our jurisprudence that a man is presumed innocent until proved guilt beyond a reasonable doubt.” (People v. Cagle, 41 Ill.2d 528, 536.) It is clear that in the case before this court the instruction in question contains the same features condemned in the Cagle case. It is both an elaborate definition of reasonable doubt and a mandate that acquittal be justified.

We find no merit to the State’s contention that the Cagle case changed the law in the State of Illinois as it relates to such an instruction. Long before Cagle, the courts of this state have condemned the practice of giving an instruction on reasonable doubt and have held that such practice constitutes error. (People v. Schuele, 326 Ill. 366.) We also find no basis for the State’s claim that such an instruction constitutes harmless error. In view of the long line of decisions condemning the use of such an instruction together with the fact that the instruction tends to negate the fundamental presumption of innocence, we are unable to agree that its submission to the jury can be deemed harmless and unprejudicial.

Our decision in regard to the reasonable doubt instruction makes it unnecessary to consider the issue raised by defendant concerning the inflamatory and prejudicial argument of the State’s Attorney. Inasmuch as the case must be remanded for new trial, it is also unnecessary to consider the sufficiency of the evidence of guilt relating to either charge.

Reversed and remanded.

MORAN and JONES, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles H. Malone, et al., Defendants-Appellants.
    (Nos. 71-17, 71 — 22 cons.;
    Fifth District
    October 26, 1971.

      Robert H. Rath, and Ralph W. Choisser, of Harrisburg, for appellants.
    John Holland, State’s Attorney, of Albion, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendants, Charles H. Malone and Edward Harry Abbott, were jointly tried before a jury in the Circuit Court of Edwards County on separate informations charging each defendant with theft in violation of section 16 — 1(a) of the Criminal Code, and possessing stolen property knowing it to have been stolen by another in violation of section 16 — 1(d)(1) of the Criminal Code. At the close of the State’s evidence the trial court granted motions for directed verdicts as to both defendants on the theft charges. Neither defendant offered any evidence and the cases were submitted to the jury on possessing stolen property only. Verdicts of guilty were returned against both defendants and each was sentenced to the penitentiary for not less than three nor more than five years.

In separate appeals consolidated here both defendants contend that they were not proven guilty beyond a reasonable doubt, that neither the value nor ownership of the property was proven; and as to defendant Abbott, it is contended that he was a mere passenger in the truck in which the alleged stolen property was found and that possession was not proved nor can it be inferred in him.

The evidence was confusing but for the purposes of this opinion it may be summarized as follows. Sometime prior to August 14, 1970, approximately 35,000 lbs. of copper wire were stolen from the lines of the Illinois Central Railroad strung on poles running parallel to its tracks in Edwards County. The wire was snipped off between poles and consisted of 70 spans, each span weighing about 5% lbs. and approximately 170 to 175 feet in length. It was estimated that the value of the wire was 80-85 cents per pound. In addition there was evidence that some 26 spans of the same type of wire were stolen from the lines of the railroad in Williamson County. This theft was not discovered until August 28, 1970, and the actual dates of the thefts in both counties were not known. It was assumed it had been stolen on numerous occasions over a period of a year.

Both defendants were arrested on August 27, 1970, by an Edwards County deputy sheriff who recognized the truck of defendant Malone as similar to one reported by a farmer as having been seen near the site of the theft in Edwards County about three weeks previously. The truck was a camper type driven by Malone with defendant Abbott in the front seat as a passenger. The camper was locked and on obtaining the key from Malone a number of items were discovered including 15 rolls of copper wire, a push cart with flange wheels fitting the gauge of the railroad track, an axe, tree trimmers and a tool box. Nine samples of wire were snipped from different rolls in the truck and were submitted to the Illinois Crime Laboratory for comparison with wire ends from the poles in both Edwards and Williamson Counties. It was determined that one of the tree trimmers found in the truck had been used to cut two of the wire samples from Williamson County and one of the sample wires from the rolls in Malone’s truck. No determination could be made as to any of the other wire samples. It was undisputed that the wire itself was a common wire used throughout the country for telephone and telegraph lines and was not distinctive in any way.

It is well to note first that the issue of whether the defendants actually stole the wire is not before us since the trial court directed a verdict for defendants on that count. The sole issue is whether defendants were proven guilty beyond a reasonable doubt of violating section 16 — 1(d) (1) of the Criminal Code which makes it a crime “* * * to obtain control over stolen property knowing the property to have been stolen by another * *

The State bases its entire case on the principle cited in People v. Reynolds, 27 Ill.2d 523, that evidence of recent, exclusive and unexplained possession of stolen property by an accused, either singly or jointly with others, may, of itself, raise an inference of guilt, absent other facts and circumstances which leave in the mind of the jury a reasonable doubt as to guilt. We find this principle is not applicable in this case to either defendant. First as to the defendant Abbott, who was merely shown to be a passenger in the truck, Reynolds itself recognizes that joint possession does not necessarily follow from the fact that one is riding in a vehicle in which stolen property is found. It calls attention to the particular facts before it, i.e., that the stolen property there filled the whole interior of the car and the defendant passenger was actually sitting on the stolen batteries, and therefore possession could be presumed in him as well as the driver. However, it specifically distinguishes such facts from those in People v. Evans, 24 Ill.2d 11, and in so doing approves the principle therein stated that where one is a mere passenger in a car driven and owned by another and stolen property is found in the locked trunk of the car, the passenger cannot be said to be in possession of such stolen property, and such fact constitutes no evidence of the defendant passenger’s guilt. In the case now before us the vehicle was a truck owned by the driver who supplied the key to the locked camper in which the alleged stolen property was found. Under such circumstances, and without any further evidence involving Abbott, we find that no guilt can be presumed against him merely because of his status as a passenger.

As to defendant Malone we likewise find that the principle set forth in Reynolds is not applicable. There the charge was theft and we agree that recent, exclusive and unexplained possession of stolen property is evidence that the possessor is guilty of the wrongful taking, but it does not follow that he is guilty of the wholly distinct crime of possessing stolen property knowing it to have been stolen by another. (See People v. DeFilippis, 34 Ill.2d 129.) Several Illinois cases support this proposition. In People v. Ensor, 310 Ill. 483, it is stated that before there can be a conviction for receiving stolen property it must be shown (1) that the property has, in fact, been stolen by a person other than the one charged with receiving it; (2) that the one charged with receiving it has actually received the property stolen or aided in concealing it; (3) that the receiver knew that the property was stolen at the time he received it; and (4) that he received the property for his own gain or to prevent the owner from again possessing it. It further states that possession of recently stolen property raises the presumption that the possessor stole it himself, that he cannot be both the thief and the receiver of stolen property, that he cannot receive stolen property from himself, and it concluded that since the record was barren of any proof that he received the stolen property from another person he cannot be guilty of the crime for which he was convicted. In People v. Dalke, 336 Ill. 446, it was held that under the facts in evidence the assumption would be that the accused stole the property himself and that he was guilty of larceny or burglary, but under the evidence he could not be found guilty of receiving stolen property. In People v. Grizzle, 381 Ill. 278, it is stated that unexplained possession of stolen property soon after a theft is evidence that the possessor is guilty of the wrongful taking but not guilty of knowledge that the property had been stolen when the possessor received it. In People v. Harris, 394 Ill. 325, the evidence showed only that defendant possessed and operated a stolen car which was consistent with his theft of the car but not of receiving stolen property knowing it to have been stolen.

The record before us parallels the facts of the above cited cases, pointing only to the guilt of defendants as thieves and not to the guilt of possession of stolen property, the crime for which they are convicted. We therefore conclude that defendants were not proved guilty.

The judgments of the Circuit Court of Edwards County as to both defendants are reversed without remandment.

Judgments reversed.

EBERSPACHER and JONES, JJ., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Clarence Shaw, Admr. et al., Plaintiffs-Appellants, v. The City of White Hall, et al., Defendants-Appellees.
    (No. 69-177;
    Fifth District
    October 26, 1971.

      Pratt, Mosele, Cohn & Day, of East Alton, (Victor B. Stutsman, of Counsel,) for appellant.
    Walker & Williams, of East St. Louis, (David B. Stutsman, of counsel,) for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is a suit for personal injury and wrongful death against five separate defendants including the City of White Hall. White Hall is a municipal corporation located in Greene County. All the other defendants are residents of Greene County. The accident sued upon occurred in Greene County. Suit was filed in Madison County. Madison County was a proper venue for all defendants other than the City of White Hall, because one of the defendants, to-wit: Gulf, Mobile & Ohio Railroad Company did business in Madison County and thus was also a resident of Madison County. Ill. Rev. Stat. 1969, ch. 110, par. 5.

The City of White Hall objected to venue in Madison County pursuant to ch. 110, sec. 7, Ill. Rev’d. Stat., which provides that a municipal corporation must be sued in the county in which it is located. The City’s motion and supporting affidavit recited that Greene County and not Madison County, was the proper venue for a suit against the City. A hearing was held on this motion. The plaintiff argued that section. 5 of the Practice Act took priority over section. 7, and that since there were other defendants who could properly be sued in Madison County, that county was the proper venue for all defendants. The trial court determined, however, that Madison County was not the proper venue for a suit against the City, and gave the plaintiff the option of either transferring venue to Greene County or dismissing the City of White Hall. Plaintiff’s attorney advised the Comt that he preferred dismissal to change of venue, and the Court directed that an order be prepared accordingly.

The order entered on August 1, 1969, recites the plaintiffs’ position in the trial court, to-wit: “that venue is properly fixed in Madison County because of the multiple defendant situation in which at least one of the other defendants is doing business in Madison County, and therefore is properly fixed against all defendants in Madison County, pursuant to sections 5 and 9 of chapter 110, Illinois Revised Statutes”. The order further recites that the court found against the plaintiffs on this issue, “and finds that Section 7, Chapter 110, Illinois Revised Statutes, is mandatory in its application, and that since this accident occurred in Greene County, and since the plaintiffs reside in Greene County, and since the defendant City of White Hall is located in Greene County, and since suit could be properly filed against all the defendants herein in Greene County, that venue should either be transferred to Greene County or said defendants motion should be allowed”.

The Court then confirmed in its order the plaintiffs’ election not to transfer venue but to suffer a dismissal by reciting, “The plaintiffs have elected not to transfer to Greene County, the said motion will be allowed”.

Shortly following the entry of said order, the plaintiffs filed a “Motion to Reconsider” in which they in no way attacked the factual findings in the court order and in no way contended that a proper motion for change of venue had not been filed, but rather restated their position in opposition to said motion, to-wit: that section 7 of chapter 110 does not apply to a multiple defendant situation in which one or more of the other defendants is properly sued in that county. This motion was denied.

Thereafter, the plaintiffs filed their notice of appeal and after that, a second motion to reconsider. It was not until this second motion to reconsider that plaintiffs first took the position that White Hall’s “Motion to Dismiss” was not a proper objection to venue within the meaning of section 7. This second motion to reconsider, however, was stricken for the reason that the plaintiffs’ appeal had already been perfected and the trial court had lost jurisdiction.

On appeal, appellants urge the single point that the City of White Hall failed to make a proper motion to transfer to a proper venue pursuant to Ch. 110 § 8(2), Ill. Rev’d. Stat. The City of White Hall has moved in this Court that the appeal be dismissed on numerous grounds including, that the basis appellant urges on appeal for reversal of the trial court’s ruling, was never presented before the trial court and is raised for the first time on appeal; which motion we have taken with the case.

Parties on appeal are restricted to the theory on which the cause was tried in the court below (Hux v. Raben, 38 Ill.2d 223, 230 N.E.2d 831; J. & R. Electric Co. v. Allison Co., 125 Ill.App.2d 123, 260 N.E.2d 755); they cannot here assume a position or attitude inconsistent with that assumed in the trial court. (Wennei’sten v. Sanitary Dist. of Chicago, 274 Ill. 189, 113 N.E. 148; Lyles v. Stanford, 3 Ill.App.2d 113,120 N.E.2d 238.) Parties cannot acquiesce in a theory in the trial court and here urge that the theory was erroneous or an improper means of proceedings. Tarzian v. West Bend Mutual Fire Ins. Co., 74 Ill.App.2d 314, 221 N.E.2d 293; Chambers v. Palaggi, 88 Ill.App.2d 221, 232 N.E.2d 69.

We therefore dismiss the appeal.

Appeal dismissed.

CREBS and JONES, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. George and Cecelia Aud, Defendants-Appellees.
    (Nos. 71-125, 71-126 cons.;
    Fifth District
    October 27, 1971.
    William J. Scott, Attorney General, of Springfield, and Alton A. Greer, State’s Attorney, of Shawneetown, (Thomas J. Immel, Assistant Attorney General and Dale R. Turner, Senior Law Student, of counsel,) for the People.
    Charles W. Phillips, of Ridgeway, for appellees.
   PER CURIAM:

The People of the State of Illinois appeal from an order of the trial court of Gallatin County, dismissing indictments for perjury against George and Cecelia Aud.

The indictments (identical except for names) charged that defendants “commited the offense of PERJURY, in that he under oath ... in a proceeding . . . charging the defendant (not the defendant in this instant case) with the offense of selling and delivering alcoholic liquors to a person under the age of 21 years, did make false statements material to the issue or point in question which he does not believe to be true. In violation of Section 32 — 2, Chapter 38, Illinois Revised Statutes, 1969.

The relevant statutes are sections 32 — 2 and 111 — 3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, pars. 32 — 2 and 111 — 3):

“32-2. Perjury (a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.”
Ill — 3. Form of Charge.
# # *
(3) Setting forth the nature and elements of the offense charged;”

In People v. Grieco, 44 Ill.2d 407, our Supreme Court said at 409— 10: “An indictment phrased in the language of the statute creating the crime is sufficiently certain where the words of the statute so particularize the offense as by them use alone to notify the accused of the precise offense charged against him. [Citations.] But where the statute does not specifically define the crime, or does so only in general terms, some act showing an alleged violation of the statute must be averred.”

The Illinois Perjury Statute is framed in general terms and the words contained therein do not set forth all the elements necessaiy to constitute the offense intended to be punished. The indictments in the present case did not allege a single fact and there was nothing in them from which the defendants could tell definitely what acts they were charged with. The indictments are therefore void. People v. Green, 368 Ill. 242; People v. Brown, 336 Ill. 257; 70 C.J.S. p. 509; 41 Am. Jur., p. 25.

Judgment affirmed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Glenn Crowell, Defendant-Appellant.
    (No. 71-55;
    Fifth District
    October 27, 1971.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appeHant.
    Kenneth Powless, State’s Attorney, of Marion, (Snyder HoweH, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM:

Defendant Glenn Crowell was placed on six months probation on his plea of guilty to a charge of theft of less than $150. One of the conditions of his probation was “that defendant shall not violate any laws of the State of Illinois or any ordinance of any city or village therein during said probation.” During his probation, defendant was again arrested and charged with theft. A hearing was held, and probation was revoked.

Defendant first contends that “clear and convincing evidence” is the proper standard of proof in probation revocation proceedings, and that the trial court therefore erroneously applied the “preponderance of evidence” test. It is time that the Third Judicial District requires a showing of clear and convincing evidence to revoke probation. (People v. Dwyer, 57 Ill.App.2d 343, 206 N.E.2d 121; People v. Arroyo, 112 Ill.App.2d 480, 251 N.E.2d 409.) However, this judicial district has required only that the probation violation be proved by a preponderance of evidence. People v. Dotson, 111 Ill.App.2d 306, 350 N.E.2d 174.

Defendant next argues that even if preponderance of evidence is the proper quantum of proof requirement, the violation was not proven to that degree. We hold otherwise. On the record the defendant concedes that the hay found in his possession might have been stolen, but argues that he was not the thief. In support of this, he presented three witnesses who testified that he bought the hay from a stranger in a tavern. The state presented substantial evidence leading to a contrary inference. The question of revocation of probation is a matter resting largely within the discretion of the trial judge, and his decision will not be overturned on review absent a clear showing of abuse. (People v. Dotson, supra.) In his memorandum the trial judge indicated that he was impressed with the reliability and credibility of the state’s witnesses and that he found defendant and his witnesses most unconvincing. This, taken together with the substantial evidence in the record of defendant’s guilt, compels us to find that the judgment below is supported by the preponderance of competent evidence.

Third, defendant claims that the trial court committed reversible error in receiving evidence of the alibi defendant used when arrested for the first theft, and of the similarity between that and the alibi used in the second theft. We agree that the trial court erred in receiving this evidence, but hold that the error is not sufficient to warrant reversal. (People v. Castanza, 92 Ill.App.2d 419, 236 N.E.2d 251.) When a cause is tried by the court without a jury, the judgment will not be reversed on the ground of the admission of immaterial or incompetent evidence if sufficient proper evidence was admitted to sustain the finding. (Schroeder v. Harvey, 75 Ill. 638.) It will not be presumed that the trial court, when trying a case, ever considers immaterial or improper evidence in reaching a decision, or that it was misled thereby. Merchants Dispatch Transp. Co. v. Joesting, 89 Ill. 152.

Defendant’s final contention is that the sentence of six months confinement was excessive. Under the circumstances presented by this case, a sentence of six months confinement was not excessive.

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

Judgment affirmed.


text:
    The People of the State of Illinois, Appellee, v. Larry Manns, Appellant.
    (No. 70-117;
    Fifth District
    October 28, 1971.

      McGrady, Madden & Watson, of Gillespie, (Denis A. McGrady, of counsel,) for appellant.
    R. W. Griffith, Jr., State’s Attorney, of Edwardsville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court, as amended on denial of petition for rehearing.

In a jury trial in the circuit court of Madison County defendant Larry Manns was convicted of theft in that on February 7, 1969 he knowingly exerted unauthorized control over property of another having a value in excess of $150 contrary to section 16 — 1 of the Criminal Code. He was granted probation for a period of three years conditioned upon paying a fine of $500 plus costs and serving a term of ninety days at the Illinois State Farm at Vandalia.

Defendant has appealed alleging, (1) that he was denied his right to present Iris defense to the jury; (2) that the cumulative effect of errors of the trial court denied him a fair trial; and (3) that the court erred in refusing defendant the right to exercise a peremptory challenge against a juror already sworn.

The facts presented by the State in proof of the crime may be briefly stated. A law student became suspicious about purchasing an almost new I.B.M. Selectric Model typewriter from defendant for $200, a price which he considered obviously too low. He contacted the Collinsville police and arrangements were made whereby he would allow the defendant to demonstrate the typewriter, obtain the serial number, report it to the police by telephone, and if proven to be stolen, complete the purchase by giving defendant $200 in marked bills. This was done and the police, having been staked out nearby and having watched defendant carrying a typewriter into complainant’s house, thereafter arrested him within two blocks after he left and recovered the marked money from his person.

Defendant’s defense is much more difficult to state or even ascertain after his brief and argument. In that portion of his brief entitled “Nature of Action” he states that he “pleaded illegal entrapment and contended that the prosecuting witness was in the employ of a certain named law firm to “fix” or set up the defendant as to a criminal charge for the purpose of discrediting the defendant who was claiming money due him for services to said law firm earned in pursuit of both legal and unethical practices as an investigator”. At the trial, following defense counsel’s opening statement at the close of the State’s case, the trial court asked for a conference in chambers so that he might better understand defendant’s defense and thereby be better able to make his rulings. Defense counsel stated that he intended to prove entrapment and that the typewriter in evidence was not the typewriter he delivered to the complaining witness; that at no time had he exercised possession over a stolen typewriter, that he had merely acted as an errand boy delivering a typewriter for a girl friend who had one for sale; that the typewriter in evidence had been switched for the typewriter he delivered as a result of a “frame” by the law firm that was out to plant something on him. When the court reminded counsel that the defense of entrapment was not available to one who denies having committed or participated in an unlawful act, he stated that he had some qualms about that himself and that actually what he was charging was a conspiracy on the part of the law firm and the complaining witness to have defendant charged with a crime. The court explained that its main concern was with defendant’s guilt or innocence relative to the typewriter and not with defendant’s grievances with the law firm, but on counsel’s promise to connect up the latter with the facts of the case on trial he would allow defendant to proceed on his theory.

Defendant then presented a number of witnesses in an attempt to prove the alleged conspiracy. A Private detective testified that he had worked ostensibly as an investigator but actually as a chaser for the law firm in question at the same time defendant had; that he was aware that defendant claimed that the firm owed him money and that defendant had made a number of charges against the firm with the Grievance Committee of the State Bar Association; that various members of the firm, particularly two members of the firm, had asked him to investigate defendant, and find something, anything illegal, immoral or unethical, to discredit his testimony before the Bar Association; that at their direction in the early part of 1968 he contacted two men willing to murder defendant but the firm did not come up with the $1000 down payment; that shortly thereafter he made other arrangements with a man from St. Louis who agreed to put defendant in a wooden box and fill it with cement for a price of $7000, but the deal fell through over a dispute as to who was to kidnap defendant and bring him across the State line to St. Louis; that the firm, however, did pay $2000 towards the expenses of the two men who had been brought to St. Louis to do the job; that later in May, 1968, members of the firm talked to him about trapping defendant with stolen merchandise in his possession. When questioned specifically about the typewriter case on trial this witness stated that he knew nothing whatsoever about it except what he had read in the newspapers. He stated further that he did not know nor had he ever seen the complaining witness, though he did remember that in May and June, 1968, someone identifying himself by using the same name as the complaining witness had telephoned the reception desk at the law firm on three different occasions and had asked to speak to one of the members of the firm.

A member of the law firm testified that both defendant and the private detective had worked for the firm over a period of time as investigators; that they were paid at an hourly rate, were not chasers and did not share in a percentage of attorney fees. He stated that the firm did owe defendant money, that finally a compromise settlement was agreed upon whereby the firm was to pay defendant $25,000, of which sum $19,365 was paid to defendant on February 7, 1969, the date the agreement was signed. He specifically denied that he knew anything about the typewriter or that he had engaged in any conspiracy to get defendant in trouble by planting a gun or dope on him, or causing him to be charged criminally, nor was he a party to having defendant kidnapped or murdered. He further stated that he did not know the law student until the summer of 1969 when he worked for the firm as a lay researcher during his semester break in law school.

Another member of the firm until July, 1968, in effect repeated this testimony, stating that their financial obligation to defendant had been negotiated out when payment was made on the basis of their agreement. He stated that he never engaged in any conspiracy to murder or kidnap defendant, or plant a gun or dope on him, or set him up or frame him in any way. He stated further that he had no knowledge of the typewriter involved in the cause before the court and did not know the law student.

A woman testified that she had worked as a secretary for the law firm from January, 1966 until September, 1967, and that she recalled taking three different telephone calls in June and July, 1967 from a man identifying himself by the same name as the law student who asked to speak to someone in the firm.

A cashier in a local bank testified that on February 7,1969, he recalled authorizing a teller to cash two checks for the defendant from the law firm, totaling $19,365 and that afterwards, on request, the defendant had returned $1000 excess cash which the teller had mistakenly paid him due to a miscounting of bills.

An assistant State’s Attorney and Chairman of the Bar Grievance Committee, was then offered as a witness but his testimony was disallowed as irrelevant when from the offer of proof it was determined that he would merely testify that late in the afternoon of February 7, 1969, he had witnessed the signature of defendant on his settlement agreement with the law firm.

Ann Meyers Manns, the former girl friend and present wife of defendant, and allegedly the person from whom he obtained the typewriter, was also offered as a witness. When it was determined that she had been present in the court room during most of the trial in violation of the exclusion of witness rule which defendant’s counsel had specifically requested, the offer was refused and she was not allowed to testify.

The defense then rested its case without any testimony from the defendant. On motion of the State’s Attorney the trial court struck the testimony of all defendant’s witnesses on the grounds that it was irrelevant and immaterial. In doing so the court called attention to the fact that on numerous occasions it had expressed its concern over the relevancy of the testimony of defendant’s witnesses and that such testimony was admitted only on the repeated assurances of counsel that he would connect it up with the typewriter sold by defendant but rather that it had been switched as a result of a frame-up arranged and carried out by the law firm and the law student. The trial court further expressed its opinion that counsel had totally failed in this regard and that his promises to do so had been a deception on the court. We agree.

In contrast, the State proved that the typewriter in evidence was the property of International Business Machines and was worth in excess of $150; that it was stolen in a burglary from the lessee, Research Laboratories, on December 10, 1968; that defendant sold and delivered this same typewriter to tire complaining witness and his wife on February 7, 1969, at which time he called attention to the fact that the typewriter still carried an IBM sticker and warned that it should never be taken back to IBM for repair; that defendant accepted the marked money and was arrested with it on his person within two blocks after leaving complainant’s house. In addition the State’s proof of chain of possession of the typewriter in evidence was sufficient to identify it with the one sold by defendant and picked up by the police at the house of the complaining witness within a few minutes after the sale. We find such evidence sufficient to support defendant’s conviction and prove his guilt beyond a reasonable doubt. Defendant would have us believe that his feud with the law firm with all of its sensational charges constituted an explanation of his recent and exclusive possession of the stolen typewriter. As stated above we find such explanation wholly irrelevant.

Next, we find no merit in either of defendant’s contentions that the trial court erred in refusing to permit him to exercise a peremptory challenge of a juror after he had been sworn, or in refusing to allow defendant’s wife to testify after she violated the rule excluding witnesses for most of the trial. It has long been recognized that neither party has the right to peremptorily challenge a juror after he had been accepted and sworn in. (People v. Curran, 286 Ill. 302.) And whether to permit one who had remained in court in violation of an order excluding all witnesses is a determination entrusted to the sound discretion of the trial judge. Absent some showing of a clear abuse of that judicial prerogative, the judgment made by the trial court will not be disturbed on review. People v. Marshall, 74 Ill.App.2d 472.

After consideration of the entire record and all of defendant’s contentions we find that defendant received a fair trial free from reversible error and that the evidence was sufficient to prove him guilty beyond a reasonable doubt. Accordingly, the judgment of the circuit court of Madison County is affirmed.

Judgment affirmed.

MORAN and JONES, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonard R. Roach, et al., Defendants-Appellants.
    (No. 70-188;
    Fifth District
    October 29, 1971.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appellants.
    Richard Richman, State’s Attorney, of Murphysboro, for the People.
   PER CURIAM:

This is an appeal from the conviction of defendants on a charge of theft of property under $150 in value (an automobile battery), in violation of Section 16 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1.) The appellants were named as defendants in a criminal information charging them with theft under $150 of an automobile battery belonging to Grob Chevrolet, Inc., Murphysboro, Illinois.

Defendants contend that the evidence at their trial was insufficient to sustain a conviction because there was no evidence in the record to prove that the battery in question was the property of Grob Chevrolet, Inc., as aHeged in the indictment.

The ownership of property must be proved as laid in an indictment for larceny, and, since larceny is an offense against the owner of property, the owner’s name becomes material to a statement of the offense in the indictment if known, and must be proved as aHeged. Where the ownership of stolen property is aHeged to be in a corporation, the legal existence of the corporation is a material fact and must be proved. People v. Smith, 341 Ill. 694, 173 N.E. 814; People v. Csontos, 275 Ill. 402, 114 N.E. 123; People v. Gordon, 5 Ill.2d 91, 125 N.E.2d 73.

In the present case there was no proof as to the ownership of the battery. Nor was there any proof offered as to the legal existence of Grob Chevrolet, Inc. The proof was therefore insufficient to sustain a material allegation of the indictment.

For the foregoing reasons the judgments of the circuit court of Jackson County are reversed.

Judgments reversed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Rockwell, Defendant-Appellant.
    (No. 70-153;
    Fifth District
    November 3, 1971.
    Paul Bradley, of Defender Project, of Mt. Vernon, (Robert E. Farrell, of Defender Project, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   PER CURIAM:

Defendant pleaded guilty to two counts of aggravated battery and filed a petition for probation which after hearing was denied. The prosecution, in view of the circumstances of the incident which led to prosecution, recommended a sentence of one to two years. The court sentenced defendant to a minimum of two years and a maximum of five years.

The 23-year-old defendant had served in the U.S. Navy from which he had been honorably discharged and soon thereafter joined the Army and was sent to Viet Nam. During his- time in the Army he was twice decorated with a Bronze Star, and awarded a Purple Heart as a result of wounds suffered in action. During the time he was in the Armed Services he completed his high school education and while in the Army completed a course in the Finance Procedure School for which he was awarded a diploma by the Army Finance School. While in the Army there was some incident, the details of which are undisclosed by the record, which resulted in an undesirable general discharge. By testimony offered, it appears that he chose to accept such discharge rather than stand a court martial. Since Ms discharge, he had prepared Mmself to enter college, by enrollment in a junior college, supported Mmself there by working, and had passed a test for acceptance as a trainee of a national retailer. Defendant had no record of prior conviction.

Events which have occurred since his sentence, including the completion of approximately one year of college work in the pemtentiary, make it unnecessary for us here to consider whether the trial court abused its discretion in denying probation, although much of what we pointed out in People v. McClendon (Ill.App.2d, 265 N.E.2d 207, would be here applicable. After serving approximately 15 months of Ms sentence, application was made to this Court for bond pending appeal, which was granted. Thereafter defendant enrolled in a umversity and during the pendency of this appeal has been so enrolled. From defendant’s attitude before the trial court, evidence there offered, his contrition and other circumstances, we consider his to be a proper case for a reduction of sentence, so that defendant may be allowed to continue normal commurnty contacts without further exposure to the “* * * stultifying effects of confinement which often * * * complicate the reintegration of the offender into the community * * *." People v. McClendon, supra.

We therefore modify the sentence imposed, reducing the minimum from two years to one year and reducing the maximum from five years to the time served.

Judgment affirmed, sentence modified.


author: Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Appellee, v. Ernest “Ned” Higgins, Roosevelt Graves, and Charles Moore, Appellants.
    (No. 70-189;
    Fifth District
    November 10, 1971.

      Paul Bradley, of Defender Project, of Mount Vernon, for appellants.
    Richard E. Richman, State’s Attorney, of Jacksonville, (Howard L. Hood, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

The three defendants were convicted in a jury trial of knowingly carrying “concealed in a motor vehicle a .38-calibre Colt snub-nosed revolver” in violation of Ill. Rev. Stat., ch. 38, par. 24 — 1(a)(4). The .38-calibre revolver introduced in evidence was found at the scene of the defendants’ arrest four or five feet away from the automobile. The search was made following defendants’ arrest and removal from the scene. There was no testimony from any witness that the weapon or any “object” was thrown or removed from the automobile. One of the three defendants was apparently getting out of the automobile when the officers arrived. The two other defendants were nearby outside the automobile. Previously that evening the three defendants had entered the apartment of Holly Goodman at which time one of them had a pistol which Miss Goodman said “looked to her like” the revolver found at the scene of the arrest. Two other witnesses had been occupants of the car earlier in the evening and testified that they never saw a gun in the car or with any of the defendants.

The question is raised as to whether the court properly ruled on the motion for a directed verdict at the end of the State’s case. This ruling becomes immaterial in that the trial court denied the motion for a directed verdict at the close of all of the evidence.

Defendants contend that the evidence was insufficient to support a conviction.

There was no evidence that the weapon involved was “concealed” in the car nor that it was even in the car. There was no evidence who, among the three claimed occupants of the car, did the act. Accordingly, it must be held that the relevant facts, together with the permissible inferences to be drawn therefrom, fail to prove defendants’ guilt beyond a reasonable doubt.

This case is not so unusual in the facts or in the applicable law to require an extended statement of the principles applicable to this case. We adopt the relevant portions of People v. Gant, 84 Ill.App.2d 208, 228 N.E.2d 582.

For the reasons indicated the judgment of the circuit court of Jackson County is reversed.

Judgment reversed.

EBERSPACHER, P. J., and CREBS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary D. Hogue, Defendant-Appellant.
    (No. 71-33;
    Fifth District
    November 3, 1971.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    C. Glennon Rau, State’s Attorney, of Waterloo, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

The Defendant Gary D. Hogue, on October 5, 1970, pleaded guilty in the circuit court of Monroe County to the charge of burglary. On October 23, 1970, following a hearing in aggravation and mitigation, he was sentenced to the penitentiary for a term of from three to ten years imprisonment.

There is but one issue presented for review, that being whether the sentence imposed was excessive in relation to the severity of the crime and the possibility of rehabilitation.

Mrs. Rosella Mae Hosick testified that on September 1, 1970, she had left her home to go to her job as a schoolbus driver when she became suspicious of the defendant’s automobile in the neighborhood because of the out-of-state plates. She was concerned with burglary because her home had been burglarized in the preceding year. She then waited a short time and returned to within seeing distance of her home and saw the automobile parked in her drive. She had left one door in her house unlocked because her brother-in-law was to return to the home before she completed her school route. It was through the unlocked door in the garage (the garage door was pulled almost closed) that the defendant entered the home. She notified the police and from the description supplied by Mrs. Hosick the police stopped the car. The defendant and the two others were arrested without resistance. After the defendants were stopped, Mrs. Hosick identified various items in the car as having been stolen from her home. The stolen property included, among other things, shotguns and a rifle.

On September 4, 1970, an information was filed charging each man with burglary. All three pleaded guilty. One of the defendants whose participation in the offense was limited to acting as lookout received a sentence of sixty days in jail and probation. The other defendant, along with the defendant Hogue, received a sentence of from three to ten years in the penitentiary.

At the hearing in aggravation and mitigation, the following was presented to the court:

Lieutenant Callis of the Columbia Police force testified as to the apprehension of the defendants which occurred without resistance by the defendants after their car had been stopped as they were leaving the area of the burglary.

The next testimony at the hearing came from the Chief Adult Probation Officer of the Circuit, a Mr. Elmer Lacquet. He interviewed the defendants in jail. He stated that the defendants were cooperative and sincere with him and that he believes that they did not he to him. Also, that the crime contained no elements of violence either in the preparation or in the apprehnseion state. Mr. Lacquet recommended some incarceration for the defendant but refused to be specific as to the length which he might recommend. He also added that there was no animosity or violent tendencies found by him in the defendants.

Defendant Hogue, age 28, was married, now divorced, with one child, a daughter. The ex-wife and child at the time of the hearing were residing in Neelyville, Missouri. The defendant Hogue and the defendant who also received the more lengthy sentence had a previous conviction for disorderly conduct which resulted from the theft of stereos on which restitution was made.

The defendants then called as their first witness, a relative, who had known the defendant all of the defendant’s life and testified that he believed that the defendant had a good reputation in the community. The court questioned the witness and elicited the fact that the defendant had not been in the witness’ home for two or three years. The witness also indicated that he felt the defendant was a good husband but was unable to give a reason for the defendant’s divorce. Following that testimony, the mother of the other two defendants testified that Hogue had at one time boarded with her family and that she considered him a good husband and related how he sent money to his child as often as possible.

The defendant’s final witness was a garage owner for whom the defendant had worked. He testified to the effect that the defendant was a good worker and he would rehire him although in the preceding year the garage had only required the defendant’s services for 40 to 50 days a year.

The prosecution recommended three to ten years imprisonment for the defendant. The defense urged one to three. Probation was not requested and Hogue did not testify at the hearing.

There can be no question that this court has the power to reduce the sentence imposed by the trial court. (Supreme Court Rule 615, see Ill. Rev. Stat., ch. 110A, par. 615(b)(4).) There is also a duty upon the court to prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of the differences in the rehabilitation possibilities around the individual offenders. The legislature has provided that the sentences imposed should be proportionate to the offense and should recognize the philosophy of rehabilitation. Ill. Rev. Stat, ch. 38, par. 1—2(c).

We are also mindful that the sentences should be reduced only when there is the requisite showing of substantial reason for the reduction. This reviewing court is fully cognizant that the sentencing of the criminal defendant is within the purview of the trial court and that we must proceed with caution to modify the sentence. To modify the sentence it must appear to this court that the sentence imposed clearly departs from the spirit and requirement of the Constitution that the sentence be proportionate to the nature of the offense as well as the possibilities of rehabilitation. (People v. Cooke (1969), 117 Ill.App.2d 296, 254 N.E.2d 293; People v. Turner (1970), 129 Ill.App.2d 24, 262 N.E.2d 379.) As aptly stated in People v. Harpole (1968), 97 Ill.App.2d 28, 289 N.E.2d 471:

“The purpose of modern day penology is the rehabfiitation of the offender. That sentence which has the greatest potential of restoring the offender to a useful and productive place in society while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses is the one which should be imposed.”

This Court has set forth those elements with which a determination of the severity of the sentence and the likelihood of rehabilitation can be made. Among the factors which should be considered are youth, lack of violence, good family relations, steady employment and previous criminal record. People v. Moore (Ill.App.2d), 272 N.E.2d 270; People v. Umphers (Ill.App.2d), 272 N.E.2d 278.

From the facts as set forth above it appears to this Court that, considering all the circumstances as they can be gleaned from the record, the spirit and intent of the law will be best served by reducing the sentence imposed. The judgment of conviction is affirmed but the sentence is modified to provide for a minimum sentence of 16 months and a maximum sentence of four years.

Judgment affirmed as modified.

MORAN and JONES, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie Holland, Defendant-Appellant.
    (No. 71-78;
    Fifth District
    November 3, 1971.
    Paul Bradley, of Defender Project, of Mt. Vernon, for appellant.
    John Lewis Wingate, State’s Attorney, of Vienna, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a conviction on defendant’s plea of guilty to the crime of escape in violation of Chapter 108, Section 121, Ill. Rev. Stat. The issue presented is whether defendant was properly advised by the court prior to the court’s acceptance of his plea of guilty. The State has failed to file a brief in this appeal.

On September 21, 1970, defendant was arraigned in the circuit court of Johnson County on charges of escape and theft exceeding $150.00. Counsel was appointed to represent defendant and formal reading of the indictments was waived. The case was continued to November 9, 1970, for trial, the defendant having entered pleas of not guilty to both charges.

On December 9, 1970, defendant appeared before the court with his appointed counsel for a change of plea. The court after some admonition accepted a negotiated guilty plea.

Rule 402 of the Supreme Court (Ill. Rev. Stat. 1969, ch. 110A, par. 402), which became effective September 1, 1970, governs this matter. It is to be noted that (a) of that rule prohabits acceptance of a guilty plea without compliance therewith and that the requirements under (d) of the rule are in addition to the preceding paragraphs.

A cursory examination of the transcript of proceedings reveals that the trial court made numerous omissions as to the requirements of Supreme Court Rule 402. Among those omissions, the trial court failed to advise the defendant that the statute under which he was charged (Ill. Rev. Stat. 1969, ch. 108, par. 121), required a sentence consecutive to the one already being served, in contravention of section (a)(2) of the Rule. The court further failed to advise the defendant of his right to be confronted by the witnesses against him, as required by section (a)(4) of the Rule; the trial court failed to determine whether there was a factual basis for the plea, as required by section (c) of the Rule; the trial court failed to advise the defendant of his right to plead not guilty, as required by section (a)(3) of the Rule; nor was the defendant advised of his right to have a trial by jury, as required by section (a)(4) of the Rule. Likewise, although the defendant did sign a waiver of trial by jury, that in itself does not satisfy the language of the Rule requiring the court to address “the defendant personally in open court, informing him of and determining that he understands * * It is incumbent that the record affirmatively show that the defendant was fully informed and understands the nature of the proceedings.

The recent case of People v. Talley (1971), (Ill.App.2d), 267 N.E.2d 13, involved a similar case, although limited to the failure to explain the right of a trial by jury. This court stated at page 16:

* * Where a defendant enters a plea of guilty to a criminal charge the record must affirmatively show that he was advised of his Constitutional right to a trial by jury and that he thereafter knowingly and understandingly waived that right.”

We therefore reverse defendant’s conviction and remand this cause to the trial court with directions to permit the defendant to withdraw his plea of guilty and plead anew in such proceedings as are consistent with this opinion.

Reversed and remanded with directions.

JONES and MORAN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Helvie, Defendant-Appellant.
    (Nos. 71-93, 71-215 cons.;
    Fifth District
    November 4, 1971.
    Paul Bradley, of Defender Project, of Mount Vernon, (Kenneth L. Jones, Assistant District Defender, of counsel,) for appellant.
    Frank H. Walker, State’s Attorney, of Mount Vernon, for the People.
   PER CURIAM:


text:
    The People of the State of Illinois, Appellee, v. Billy Ward, Appellant.
    (No. 70-199;
    Fifth District
    November 9, 1971.
    Morton Zwiclc, Director of Defender Project, of Chicago, (William E. Lasko, of Defender Project, of counsel,) for appellant.
    WiUiam J. Scott, Attorney General, of Chicago, and Robert Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court;

The principal question presented by appeHant is whether his plea of guilty to attempted murder was invalid because he was not sufficiently admonished as to the sentence. Defendant was sentenced to the penitentiary for a period of two to twenty years. The pertinent part of the admonition was, “the court has the authority to sentence you to any time up to 20 years. Do you understand that?”

The relevant portion of the statute fixing the penalty for attempt is found in Ill. Rev. Stat., ch. 38, par. 8 — 4, subsection (c) provides as foUows:

"(c) Penalty
A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted * * *
(1) the penalty for attempt to commit # # , murder, s * * shall not exceed imprisonment for 20 years.”

No reference has been made by appellant to any specific provision of the Federal or State Constitution.

It appears that the defendant received what is asked on his behalf: “to be informed of the permissible range of sentences which he could receive.” The date of the guilty plea was February 18, 1970, which antedated the adoption of Supreme Court Rule 402. No useful purpose would be served by expounding on the apphcable rules which are fully set forth in People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383; People v. Scott, 43 Ill.2d 135, 251 N.E.2d 190; People v. Evans, 45 Ill.2d 265, 259 N.E.2d 41; and People v. Eads, (Ill.App.2d), 272 N.E.2d 293. The law is concerned with substantial rights of parties, and we cannot conceive, nor does counsel claim, that the defendant was misinformed or in any way harmed by the court’s faffure to tell him that he might receive a lesser minimum sentence than that he received.

Defendant also has argued that he should have received probation instead of a sentence. However, no apphcation for probation was made in the trial court and thus no issue touching denial of probation is before us for review. Defendant’s contention that his sentence is excessive has some merit. While we find no fault with the minimum of two years imprisonment for one convicted of attempted murder for shooting several times at police officers we nevertheless note that defendant has no prior felony convictions and believe the proper objectives of sentencing wiU be better served if the maximum sentence to twenty years is reduced to six years.

Judgment of conviction affirmed. Maximum sentence reduced to six years.

Judgment affirmed.

EBERSPACHER, P. J., and MORAN, J., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael T. Obermoeller, Defendant-Appellant.
    (No. 71-14;
    Second District
    November 2, 1971.
    E. Roger Horsky and Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE SEIDENFELD

text:
    Julius Zamouski, Plaintiff-Appellant, v. Michael A. Gerrard, et al., Defendants-Appellees.
    (No. 71-21;
    Second District
    November 3, 1971.

      David Alswang, of Chicago, and Russell J. Goldman, of Rockford, for appellant.
    Caldwell, Berner & Caldwell, of Woodstock, Keegan & Gosdick, and Welsh, Holmstrom, Hyzer, Jacobson & Worden, of Rockford, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Julius Zamouski appeals from a judgment order which dismissed his complaint as to all defendants with prejudice and denied him leave to amend.

Count I of the complaint alleges in substance that on March 26th, 1970, the defendant LaSalle National Insurance Company (or its predecessor La Salle Casualty Company), acting by and through attorneys Michael A. Gerrard and Peter S. Switzer from the firm of Barrick, Jaskson & Switzer, accepted plaintiff’s offer to settle a personal injury claim against La Salle’s insureds for $125,000; and that after plaintiff discontinued all preparations being made for trial of the suit. La Salle refused to comply with the oral settlement agreement. Plaintiff sought damages of $125,000 plus additional expenses and costs from both La Salle and the lawyers individually for this alleged breach.

Count II contains the same allegations, and prays for exemplary damages in addition to the actual damages suffered.

Count III alleges that the settlement agreement was breached due to a series of systematic and intentional activities, instituted by defendants, Peterson, Lowry, Rail, Barber & Ross, acting through Walter W. Ross, Jr., designed to cause a repudiation of the agreement. A letter dated April 3, 1970 from Ross to plaintiff’s lawyer, was attached to the complaint as an exhibit. It stated:

“We are advised that you recently had settlement discussions with Attorney Michael Gerrard, the attorney of record for Ashlar- Construction, Inc., one of the defendants in the above case. Please be advised that we are the attorneys for the insurers of that defendant and at no time has a settlement of the above case been authorized by them or ourselves.”

It was further stated in this count that “Plaintiff is informed and believes” that these defendants were not the attorneys for La Salle, nor were they the attorneys for the insureds of LaSalle, and thus were without legal justification to intercede in the matter.

All of the defendants filed motions to dismiss the complaint. The trial court in ruling on these motions held that the action could not be maintained to enforce an alleged oral settlement as no judgment had been entered thereon nor had the case been dismissed or the releases executed; and further held that, in any event, such action could not be maintained against the attorneys acting in their representative capacities. A separate order entered on the same day as the order of dismissal denied plaintiff leave to file an amended complaint.

Settlement of disputed claims is to be encouraged and generally given full force and effect. (Bingham v. Browning (1902), 197 Ill. 122, 136.) Both parties agree with this general proposition but defendant argues that under Vece v. DeBiase (1964), 46 Ill.App.2d 248, an oral settlement, although binding in a contract action, is not enforceable in a tort case without further positive action confirming the settlement. In Vece, defendant orally agreed to pay plaintiff $10,000 in settlement of a will contest suit. After learning that an income tax claim consuming the entire estate was to be filed, defendant refused to comply with the agreement and plaintiff sued to enforce it. The Appellate Court, finding for the defendant, stated as one of the bases that oral settlements in tort actions, which it considered this to be, are not final until either a judgment has been entered or the case has been disposed of and releases signed. However, also important to the court was the parties’ right to rescind the agreement because of a material mistake of fact. Furthermore, the court found that the settlement agreement was expressly contingent upon the approval of the Probate Court, which was never obtained. The only decisions cited as authority were cases of rescission because of mutual mistake, which did not deal with the tort-contract differentiation (Steinmeyer v. Schroeppel (1907), 226 Ill. 9, and Winkelman v. Erwin (1929), 333 Ill. 636). The plaintiff cites Country Mutual Ins. Co. v. Drendel (1969), 116 Ill.App.2d 466, and Knoll v. Swanson (1968), 92 Ill.App.2d 398.) Country Mutual is inapplicable since we there ruled upon an oral settlement in a contract action. In Knoll, the plaintiff was held bound by an oral settlement of his suit seeking an injunction against defendant’s obstruction of drainage flow of natural surface water. While it is questionable whether this could be termed an action in tort, it sounds more closely in tort than in contract. The court clearly treated this as an oral agreement, even though two letters referring to it were present. The court stated that an agreement of settlement need not be in writing unless it is within the Statute of Frauds, and held that it would not disturb the oral agreement unless mistake or fraud were present.

On policy grounds, making the distinction between contract and tort settlements as a matter of law seems without basis. We can see no reason to allow one settling a tort claim to escape his commitment, while enforcing the settlement of the contract claim. While we recognize that there may be special problems of proving that a binding settlement of a lawsuit in all of its terms has been reached in a tort case, these would more properly be matters to consider in a hearing on the merits. Since no issue of mistake or fraud was presented by the pleadings, the oral settlement could not be said to be unenforceable as a matter of law and the dismissal on this basis would have been improper.

We now consider whether the pleadings were properly dismissed for reasons other than the unenforceability of an oral agreement to settle a tort claim.

The motion to dismiss of La Salle National Insurance Go. stated that the complaint contained no allegation of authority in the attorneys with whom plaintiff negotiated to settle on behalf of La Salle. An attorney authorized to represent a client in litigation does not necessarily have authority to conclude a settlement. (Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 149.) Generally, allegations that the principal contracted “by" an agent are held sufficient to withstand a motion to dismiss. (Ohio & Mississippi Railroad Company v. Middleton (1858), 20 Ill. 629, 634.) There is also authority that if a pleading relied upon sets forth the contract in suit so as to disclose that it was a transaction for which special authority is required, the pleading may be subject to dismissal if it fails to allege facts showing that the agent was possessed of the necessary special authority. (See Anno: 45 A.L.R.2d 583, Sec. 9, page 607.) Here, there is an allegation in plaintiff’s complaint that LaSalle acted ‘by and through” the attorneys in accepting plaintiff’s settlement offer. While a close question is presented, it is sufficient to withstand La Salle’s motion to dismiss. We, therefore, conclude that the court erred in dismissing the complaint as to this defendant.

We think, howeve, that the pleadings were insufficient to state a cause of action against the defendants Gerrard and Switzer, and the firm of Barrick, Jackson & Switzer. Plaintiff contends that these defendants should be personally liable if they were without authority to conclude a settlement on behalf of La Salle. Defendants answer that an attorney is not personally liable to third persons for acts which he performs in his representative capacity. Defendant cites several cases for the proposition that if an agent, in making a contract, discloses his agency in the name of his principal (or the principal was known at the time by the other party), the agent is not liable on the contract unless he agrees to become personally liable. (See Petrando v. Barry (1955), 4 Ill.App.2d 319, 332; Millikin v. Jones (1875), 77 Ill. 372, 375, and Wheeler v. Reed (1864), 36 Ill. 81, 89.) We do not question the soundness of the rule cited by defendants, but think it inapplicable to the case before us since, in our view, it applies only to those cases in which the authority of the agent to act is not in issue. When such a question is presented, the well established rule is that an agent making a contract which he had no authority to make binds himself personally according to the terms of the contract. (Frankland v. Johnson (1893), 147 Ill. 520, 525; Vulcan Corp. v. Cobden Machine Works (1949), 336 Ill.App. 394, 401, and Slape v. Fortner (1954), 3 Ill.App.2d 339, 349.) Thus, a complaint properly alleging that the defendants’ agents acted without authority or exceeded their authority would be sufficient to withstand a motion to dismiss based on the grounds that they acted in their representative capacities and disclosed the fact of their agencies. However, plaintiff’s complaint contains no allegation that the named attorneys lacked authority to conclude a settlement on behalf of La Salle, and, in fact, states that the agreement was made by La Salle, acting through the attorneys. This alleged no cause of action against the attorneys personally and, therefore, the motions to dismiss of these defendants were properly granted.

The trial court granted the motion to dismiss of Peterson, Lowry, Rail, Barber & Ross, and Walker W. Ross, Jr., on the basis that the oral settlement was unenforceable and, in any event, that these defendants could not be personally liable when acting only in their representative capacities as attorneys. The court in its order did not meet the issues raised by Count III, which sounds not in contract, but in the tort of wrongfully inducing a breach of contract. The essential elements of this tort have been stated to be: (1) The existence of a valid and enforceable contract, (2) The defendants knowledge of the existing contract, (3) Intentional and malicious inducement of the breach, (4) The subsequent breach by the third person due to defendant’s wrongful conduct, and (5) Damage to the plaintiff. (Arlington Hgts. Nat. Bk. v. Arl. Hgts. Sav. (1967), 37 Ill.2d 546, 552; Herman v. Prudence Mut. Cas. Co. (1968), 92 Ill.App.2d 222, 229 —modffied, (1968), 41 Ill.2d 468.) Defendants’ status as attorneys might justify the interference, but justification is an affirmative defense, not to be considered as supporting the trial court’s grant of a motion to dismiss unless it appears on the face of the complaint. 45 Am.Jur.2d, Interference, Sec. 55. (See also Herron v. State Farm Mut. Ins. Co. (1961), 363 P.2d 310, 312.) We cannot say that justification appears on the face of the complaint here. However, Count III was otherwise insufficient to state a cause of action. While pleadings are to be liberally construed and formal or technical allegations are unnecessary, still the complaint must allege facts necessary to state a cause of action. (Fanning v. LeMay (1967), 38 Ill.2d 209, 211.) A motion to dismiss admits facts well pleaded, but not conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest. Count III merely concludes that the named defendants carried on a series of systematic and intentional activities to induce the repudiation of the alleged settlement contract, and the only item which could be considered an allegation of fact would be the letter attached to the com plaint. We find nothing in this exhibit which can be construed as an inducement to anyone to breach the settlement agreement. Count III is, therefore, insufficient to set forth a cause of action for wrongfully inducing a breach of contract and was properly dismissed by the court.

Plaintiff’s argument that even if his complaint is deficient the court has a duty under Article I, Sec. 12 of the 1970 Illinois Constitution to provide him with a remedy is without merit. The failure to state a cause of action cannot be cured by alleging that plaintiff should have a remedy as provided in the Constitution. Constitutional rights cannot be infringed when an insufficient or defective complaint is dismissed. Belmar Drive-In Theatre v. Hgw. Com. (1966), 34 Ill.2d 544, 551; Deasey v. City of Chicago (1962), 412 Ill. 151, 155; Bauscher v. City of Freeport (1968), 103 Ill.App.2d 372, 376.

The trial judge did not abuse his discretion in refusing leave to amend. A party desiring to file an amended pleading should incorporate the preferred amendment in his record on appeal. Otherwise, the reviewing court has no means of determining whether the second attempt to state a cause of action would have been any more successful than the first. (Lowrey v. Malkowski (1960), 20 Ill.2d 280, 285; Deasey v. City of Chicago, supra, at page 156.) Since plaintiff has not indicated the nature of his proposed amendment, this court is not in position to say that justice would be more greatly served by granting leave to amend, and we must assume that the refusal to permit such an amendment was not prejudicial to the plaintiff nor did it amount to a manifest abuse of the trial court’s discretion.

We, therefore, affirm the judgment of the court below as to all defendants with the exception of La Salle National Insurance Company, a corporation. The judgment which dismissed the complaint against the corporate defendant is reversed and the cause is remanded to the circuit court with directions that the complaint be reinstated against the said defendant, that the defendant be granted leave to file responsive pleadings and that the cause then proceed in due course.

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

MORAN, P. J., and ABRAHAMSON, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER.

text:
      In re Estate of Oscar J. Breault, Deceased,—(Kirsch E. Soble, Petitioner-Appellee, v. William Joseph Breault, et al., Respondents-Appellants.)
    (No. 54115;
    First District
    August 27, 1971.
    Yowell & Yowell, of Chicago, (John J. Yowell and G. Kent Yowell, of counsel,) for appellants.
    Hirsh E. Soble, of Chicago, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE EBERSPACHER.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Billy C. Cleere, Defendant-Appellant.
    (No. 71-41;
    Second District
    November 4, 1971.

      John T. Beynon, Public Defender, of Rockford, (Frank P. Vella, Jr., Assistant Public Defender, of counsel,) for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Rolland J. McFarland, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, Billy C. Cleere, entered a plea of guilty to the charge of burglary on July 16, 1970, and was given three years’ probation on August 7, 1970. Thereafter, on September 14, 1970, a petition to vacate that probation was filed. The petition alleged that the defendant, while on probation, had committed the offense of burglary on September 8, 1970. After a hearing on the petition to vacate probation, the tidal court found that the defendant had committed the burglary charged, while on probation, and revoked his probation. In aggravation, it appeared that the defendant, aged 24, in addition to the two burglaries hereinbefore mentioned, had been convicted within the prior six-year period of three petty thefts, two drinking offenses, battery, and criminal trespass to a vehicle. The trial court sentenced the defendant to a term not less than one year or more than five year's in the state penitentiary.

On appeal, the defendant does not complain of the minimum sentence of one year, but he does ask that the five-year maximum sentence be reduced by this court, as permitted by Supreme Court Rule 615(b) (4) (Ill. Rev. Stat. 1969, ch. 110A, par. 615). His contention is that the maximum sentence should only be long enough to insure his rehabilitation and that the five-year maximum sentence is in complete conflict with every concept of a proper sentencing. He stresses the importance of the element of rehabilitation and asks that the maximum sentence be reduced to allow him an earlier parole. In stating the general purposes of sentencing, section 1 — 2(c) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 1—2) provides for penalties which are proportionate to the seriousness of offenses and which recognize differences in rehabilitation possibilities.

Certain guidelines have now been established in Illinois for reviewing courts when determining whether or not to reduce a sentence. The authority granted to reduce sentences should be exercised with caution as the trial court is normally in a better position than the appellate tribunals to make a sound determination of the punishment to be imposed. (People v. Taylor, 33 Ill.2d 417, 424.) In People v. Bush, 95 Ill.App.2d 57, 66, the court said that a sentence reduction is not sanctioned unless the sentence is “manifestly excessive or of extreme departure from the underlying rationale for our system of penology.” In People v. Juve, 106 Ill.App.2d 421, 429, this court, in affirming a sentence for auto theft of not less than two nor more than seven years, held such sentence not excessive and in doing so stated that the trial court did not abuse its discretion in imposing that sentence where it appeared “from the background of the defendant, and the nature of his offenses, that a proper balance between his liberty and the existence of an organized society, which maintains public order, would sustain the propriety of the sentence imposed by the trial court." In People v. Buell, 120 Ill.App.2d 367, this court upheld a sentence of 60 to 75 years where a 24-year-old defendant was convicted of arson. The defendant had a long history of arson offenses and very unfavorable psychiatric reports which revealed the defendant to be a danger to both people and property. It was stated at pages 371 and 372:

“In imposing a sentence, the trial court has an obligation to the public as well as to the person found guilty of a crime. In addition, the sentence is significant to the institutional officials in their program of rehabilitation in connection with the incarceration of the convicted person. Thus, in sentencing, the court must consider the punishment warranted under the circumstances of the particular case, the protection of the public, and the potential for rehabilitation of the party being sentenced. The circumstances of the case include the nature of the offense, the attending circumstances, the character and propensities of the offender, his family, work record, past delinquencies, his potential for rehabilitation, and all other pertinent matters.”

Here, the defendant does not deny that he committed another theft about a month after he had been granted probation. He appeals for the sole purpose of reducing his maximum sentence of five years. The sentence spread of from one to five years gives the Department of Correction a desirable latitude to evaluate the rehabilitative effects of incarceration as to this defendant. There are no circumstances which would warrant us to reduce the sentence imposed by the trial court. Accordingly, the judgment of the circuit comt of Winnebago County is affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    Norman E. Doerr, et al., Plaintiffs-Respondents, v. Herbert J. Palm, Defendant-Petitioner.
    (No. 54870;
    First District
    August 31, 1971.

      Schaffenegger & Watson, of Chicago, (Jack L. Watson, of counsel,) for appellant.
    Ruskin and Rosenbaum, of Chicago, (Martin L. Bogot, of counsel,) for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal from an order granting plaintiff’s motion for a new trial after a jury verdict in favor of defendant.

On August 28, 1963, Herbert J. Palm operated a Chevrolet automobile in a southerly direction on Pulaski Road, approaching its intersection with Wellington St, in the City of Chicago. Plaintiff Doerr was the driver of a Mercury station wagon which was also facing in a southerly direction on Pulaski Road, but was stopped at the aforesaid intersection waiting for the red traffic control light to change. Plaintiff Dolan was a passenger in the Mercury. It further appears that defendant’s Chevrolet struck the right rear portion of the plaintiffs’ Mercury. At the time this incident occurred, it had been raining and the street was wet.

The impact of the collision damaged the front bumper, the grill and one of the front fenders of the Chevrolet. In addition, its hood was caused to spring open. The rear portion of the Mercury was damaged. Dolan was thrown off his seat on to the floor. The impact also caused Doerr to be rapidly thrust backward and then forward. Both plaintiffs testified that they sustained whiplash injuries and were taken by the police to the hospital.

At the trial, plaintiffs, pursuant to section 60 of the Civil Practice Act, (Ill. Rev. Stat. 1969, ch. 110, sec. 60) called defendant to testify as an adverse party. He stated, among other things, that as he approached Wellington St. and was about one-half block to the north of that street, his speed was about thirty miles per hour. Defendant when asked if he had his mind on something else, responded: “Yes, perhaps I was thinking, trying to think ahead a little bit. That’s my job.” He further stated that he had seen the stopped Mercury when he was about forty feet behind it, and at the time applied his brakes. In addition, defendant testified that when he reached a point approximately fifteen feet to the rear of the Mercury, he hit a greasy slick spot on the street that covered an area of fifteen feet, lost all traction and slid into the Mercury at a speed of about ten to fifteen miles per hour.

Doerr testified that as he approached the traffic control light, he had no difficulty stopping his vehicle and didn’t encounter any greasy slick spots on the street. Dolan’s testimony was to the same effect. The jury then returned their verdict in defendant’s favor.

After hearing on a motion for new trial, the trial court, after hearing argument of both counsel stated:

“* * # The on]y thing I am concerned about is the finding of the jury, because I questioned the jury after it was all over. I found out what their reasoning was and so forth and so on; I have a little advantage over you. The only thing I am concerned about is the way the accident happened, and that is what I want to confine myself to hear.”

Counsel for plaintiff then interjected and said:

“In concluding then, Judge, I would only say this, that the admissions of the defendant as to speed on a slippery pavement, the fact that the plaintiff was stopped at a stop light, which is admitted by both sides, indicates definite negligence. There were items of damage that were stipulated to, uncontested, and it is a matter of law. He was entitled to a verdict, * * * I respectfully think we should have a new trial.
The Court: Both sides finished?
Defendant’s Counsel: Both sides finished.
The Court: Now, as I said, I have a little advantage over you people, because I questioned the jury. Frankly, I was very surprised at the verdict, because there was no question even admitted by counsel for the defendant. The plaintiff was standing still, I think it was Western and what other cross street?
Counsel: Wellington and Pulaski.
The Court: Wellington, that’s right and Pulaski. So, I said to the jury, and one juror said afterwards, “I certainly didn’t believe the fellow on his testimony on all those expenses, because it was a slight tap. ‘He said, at least he felt he should be paid for the damages to his car. He said, after all, the fellow was standing at the light, he didn’t back up into the defendant; the defendant ran into him. He said he admitted there was an oil slick, and apparently he could not control his car. So, I asked him, I said, “Why did you — “Well, he said, it was getting late and so forth, and I notice from here that the case went to the jury at 2:55. They came out at 4:05. I think the verdict was manifestly against the weight of the evidence, and I am going to grant a new trial. Motion for new trial allowed; draw the order please.”

OPINION

A motion for new trial is addressed to the discretion of the trial judge and his judgment will not be reversed except for a clear abuse of that discretion, which must affirmatively appear from the record. (Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill.App.2d 354.) In reviewing the exercise of that discretion where no procedural errors are alleged, the applicable standard is whether the jury’s verdict was contrary to the preponderance of the evidence. Skiba v. Ruby, 113 Ill.App.2d 170; Biel v. Wolff, 126 Ill.App.2d 209.

Initially, defendant contends that the trial court based its ruling for new trial on the conversation with the jurors. Defendant relies upon Loucks v. Pierce, 341 Ill.App. 253, wherein the trial court granted a new trial predicated upon the judge’s extra-judicial investigation of alleged irregularities during the jury’s deliberations. In that case this court observed: “It is apparent the trial court did not purport to be passing upon the evidence.”

However, a fair and objective reading of the trial court’s remarks in the present case indicate that after the verdict was returned the trial court determined that a motion for new trial would be appropriate and merely engaged in an inquiry with the jurors in an effort to perceive how they could have returned a verdict contrary to the evidence.

In any event, the impropriety of a trial court’s reasoning for its decision is of no importance if the decision itself is correct (Miller v. Chicago Transit Authority, 78 Ill.App.2d 375) and therefore, we must review the court’s decision according to the standard as outlined above to determine whether the jury’s verdict was contrary to the preponderance of the evidence.

In reviewing the record, we find that the trial court did not abuse its discretion in granting plaintiffs’ motion for new trial. The verdict was clearly contrary to the preponderance of the evidence.

Defendant admitted that it was “raining quite hard” at the time of the accident; that he was moving at about 30 miles an hour; and that he eventually struck plaintiffs’ vehicle at a speed of approximately 15 miles an hour. The only defense interposed by defendant was that the accident was unavoidable due to the existence of an “oil slick” on the pavement. However neither plaintiffs’ vehicle nor the vehicle behind defendant had any difficulty stopping.

Moreover, defendant’s attempts to explain the inability to brake his vehicle were contradictory. Defendant initially testified that he applied his brakes before encountering the slick thereby reducing his speed by approximately half. He later testified that he applied his brakes as his vehicle encountered the slick.

It is also significant that defendant testified that he did not notice plaintiffs’ stopped vehicle until he was approximately three car lengths behind it and that at the time he was thinking ahead.

Therefore, we affirm the judgment of the trial court in granting plaintiffs a new trial.

Judgment affirmed.

LEIGHTON, P. J„ and SCHWARTZ, J., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Appellant, v. Ronald Howlett, et al., Appellees.
    (No. 54908;
    First District
    August 31, 1971.

      Edward V. Hanrahan, States Attorney, of Chicago, (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel,) for the People.
    Gerald W. Getty, Public Defender, of Chicago, (James N. Oramenos, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal by the State. Pursuant to Supreme Court Rule 604(a), it seeks review of an order that suppressed evidence which would have been offered in defendants’ trial for unlawful use of weapons. The issue is whether the order was erroneous. In resolving this issue, it is necessary to decide whether, in violation of state and federal constitutions, defendants were arrested and subjected to a search and seizure. The facts which give rise to the issue are revealed in the testimony of one witness, Alfred Marino, one of two Chicago policemen involved.

August 7, 1969 at about 2:50 A.M., Marino and his partner Earl Several, in uniform and in an official police squad car, received a call to investigate an attempted theft of an automobile at 4200 West Jackson Boulevard. They went to that address and spoke with the owner who told them that he had observed two men trying to steal his automobile. An examination revealed that someone had tampered with and broken the ignition of the vehicle. The owner, however, was unable to give a description of the two men but he agreed to accompany the officers in a search of the neighborhood.

At about 3:15 A.M., with the owner seated in the rear of the squad car, the two officers drove west on Adams Street (a block and a half from the place where the attempted theft occurred). They saw defendants walking on the south side of the street, in the same direction. Neither officer had seen defendants before. The owner of the automobile did not say defendants were, or looked like, the two he had observed trying to steal his car. No one pointed to defendants as the perpetrators of any crime. The officers did not have a warrant nor did they see defendants commit any offense.

When the squad car was about 25 feet away from defendants, Severin, who was driving, called to them and said, “Would you fellows come over here, please?” Both defendants turned, looked at the two officers and kept walking. When they were about five to ten feet farther, Marino said to Severin, “It seems like these guys might have something.” Severin stopped the car, both officers, unarmed and without saying anything, alighted and approached the defendants. When the officers were within eight to ten feet of them, defendants stopped. The officers saw them lift their shirts and drop two objects to the ground. When this happened, Marino reached for his gun; Severin drew his. Marino walked toward the two men. He then saw that the objects on the ground were sawed-off shotguns. He picked them up and said to the defendants, “You are under arrest.” Search of defendants disclosed a quantity of shotgun shells. Defendants were later indicted for the offense of unlawful use of weapons.

Prior to trial they filed motions to suppress evidence alleging that in violation of their constitutional rights, they were arrested, searched, two sawed-off shotguns and shells were taken from them without warrant or lawful authority. Defendants prayed that the articles be suppressed. After hearing evidence and arguments of counsel, the trial judge found “[t]hat the circumstances did not justify a reasonable inference that [defendants] were about to commit or had committed an offense * * He concluded that “I don’t think the fact that two people were walking down the street justified under these circumstances this action.” He sustained defendants’ motions and ordered that the shotguns and the shells be suppressed.

Before us the State contends that the order is erroneous. It argues that Marino and Severin, while performing a proper investigatory function, lawfully attempted to question defendants who voluntarily exposed weapons which the police officers saw, seized and then, with probable cause, arrested defendants and searched them. To meet this contention defendants “[u]rge this Court, as was resolved by the trial judge, to acknowledge that in light of the circumstances of this on-the-street encounter, the police approach constituted a seizure’ and a serious intrusion upon the personal security of these defendants.” Defendants argue that when Officer Severin said to them “Would you fellows come over here, please?” their liberty was restrained and that they were seized without probable cause in violation of their rights under state and federal constitutions. These contentions compel the inquiry whether at the time in question defendants were arrested without probable cause and subjected to a seizure which violated constitutional quarantees.

An arrest is a seizure of the person; and if it is without a warrant or probable cause, it is unreasonable within the purview of the fourth amendment to the federal constitution. (People v. Curtis (1969), 70 Cal.2d 347, 450 P.2d 33, 36; Wong Sun v. United States (1963), 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441.) The legislature of this State has provided that an “[a]rrest means the taking of a person into custody.” (Ill. Rev. Stat. 1969, ch. 38, par. 102—5.) It is accomplished “[b]y an actual restraint of the person or by his submission to custody.” (Ill. Rev. Stat. 1969, ch. 38, par. 107 — 5(a).) As defined, and in the context with which we are concerned, every arrest involves three elements: (1), authority to arrest; (2), assertion of that authority with intention to effect an arrest; and (3), restraint of the person to be arrested. (People v. Mirbelle, 276 Ill.App. 533.) Although the intention to arrest must he communicated, and defendants understanding of that intent is a factor to be considered, “[t]he test must be not what the defendant * * * thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes.” Hicks v. United States (D.C. Cir., 1967), 382 F.2d 158.

As a corollary of these principles, it has been held that a police officer who merely engages in conversation with a citizen does not thereby create the requisite restraint on liberty which would constitute an arrest. Coates v. United States (D.C. Cir., 1969), 413 F.2d 371.) Our court has held, for example, that an officer who sees a person drop a container to the ground and yells for him to stop, does not make an arrest at the time he speaks. (People v. Bridges, 123 Ill.App.2d 58, 259 N.E.2d 626.) Long before contemporary refinements on fourth amendment rights, our Supreme Court recognized the right of police officers to stop and question citizens concerning matters within the scope of a criminal investigation. (See People v. Henneman, 367 Ill. 151, 10 N.E.2d 649.) Other courts, discussing either common or statutory law, have generally assumed that police officers have the right, in the course of a criminal investigation, to make brief threshold inquiries of a citizen. See Commonwealth v. Lehan (1964), 347 Mass. 197, 196 N.E.2d 840; State v. Hedman, 269 Minn. 375, 130 N.W.2d 628; Kavanagh v. Stenhouse, (1961), 93 R.I. 252, 174 A.2d 560; De Salvatore v. State (1960), 52 Del. 550, 163 A.2d 244 and People v. Simon (1955), 45 Cal.2d 645, 290 P.2d 531.

From a study of judicial decisions and the law of arrests the country over, reputable scholars have concluded that "[i]t is obvious • * * an officer may ask an individual a question * * * provided that he does not confine or restrain the individual without his consent.” (Remington, The Law Relating to “On The Street” Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General (1960), 51 J. Crim. L.C. & P.S. 386, 389; LaFave, “Street Encounters” and the Constitution (1968-69), 67 Mich. L.Rev. 40; and Note, (1938), 37 Mich. L. Rev. 311.) Unlike an arrest which requires probable cause, in a threshold inquiry of a citizen, aimed at effective crime prevention and detection, there is “[t]he recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L. Ed.2d 889.

When applying these principles here, we notice that this record does not disclose policemen on the prowl. On the contrary, it discloses two officers responding to the call of a citizen whose property had been subjected to an attempted theft. A block and one-half away from the scene of the offense, they saw the same number of men that had been described to them. It was dark, in a densely populated area of a large city. When Officer Severin called to the two defendants there was no probable cause to arrest them. From the circumstances, however, the officers could have reasonably inferred that defendants were the two men who had tampered with the automobile in question. In any event, the attempt to talk and the approach of the officers were neither arrests nor intrusions on defendants’ personal security. The officers acted in an appropriate manner when unarmed, without any show of force, they pursued theh investigation. It was not until defendants dropped the objects that Officer Marino reached for his gun and Severin drew his. Even at this point, defendants were not under arrest. When Marino drew closer and saw that the objects were sawed-off shotguns, both officers had reason to believe that a crime was being committed in their presence. At that point they had probable cause to arrest the defendants. People v. Cummings, 38 Ill.2d 11, 230 N.E.2d 187 and People v. Bridges, supra.

When Officer Marino picked up the shotguns there was no search because “[a] search implies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view.” People v. Davis, 33 Ill.2d 134, 138, 210 N.E.2d 530. Since the arrest of defendants was lawful, the search that foUowed which revealed the shotgun shells was not unreasonable. (Ill. Rev. Stat. 1969, ch. 38, par. 108—1; People v. Clay, (Ill.App.2d); Gen. No. 55329.) Therefore, neither when the threshold inquiry was made of them nor when they were arrested, were defendants subjected to an unreasonable search or seizure. For these reasons it was error for the trial judge to sustain defendants’ motion to suppress the evidence. We reverse the order and remand the cause for further proceedings.

Reversed and remanded.

SCHWARTZ and STAMOS, JJ., concur.