author: MR. PRESIDING JUSTICE MURPHY

text:
    The Department of Mental Health of the State of Illinois, for and in Behalf of the People of the State of Illinois, Plaintiff-Appellee, v. Fred Salmar, Defendant-Appellant.
    Gen. No. 51,358.
    First District, First Division.
    April 24, 1967.

      Herbert M. Wetzel, of Chicago, for appellant.
    William G. Clark, Attorney General, of Chicago (Richard A. Michael and John J. O’Toole, Assistant Attorneys General, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is a statutory proceeding under the Mental Health Code of 1951, against Fred Salmar, defendant, for the maintenance of Anna Salmar, defendant’s wife, as a patient in the Manteno State Hospital from January 1, 1952, to October 81, 1963. (Ill Rev Stats 1963, c 91%, § 9-19.) Judgment for $9,538.50 and costs was entered against defendant, and he appeals.

Defendant contends (1) that the Attorney General was not the proper legal officer to institute the present action; (2) that the patients who were inmates prior to January 1, 1952, the effective date of the Mental Health Act of 1951, were exempt from liability for maintenance because at that time section 9-1 of the Mental Health Act (Ill Rev Stats, c 91%) provided in part that the expense of maintenance and treatment of an inmate in a state hospital shall be borne by the State; that Anna Salmar was a patient since February 20, 1950, and defendant was denied “due process” when held liable for the instant charges, because of immunity from such charges under the “Saving Clause” of the Mental Health Code (§ 16-1); and (3) that the magistrate who entered the instant judgment was not a judge and was without jurisdiction to entertain a suit for statutory debt.

Defendant’s initial contention that the Attorney General of the State of Illinois is not the proper legal officer to institute the present action in debt is predicated upon section 12-25 of the Mental Health Act, which provides in part:

“Upon request of the Department, the State’s Attorney of the county in which a responsible relative or a patient who is liable under this Act for payment of sums representing treatment charges resides shall institute appropriate legal action against any such responsible relative, or the patient, or within the time provided by law shall file a claim against the estate of such patient who fails or refuses to pay the same.”

From the above, defendant argues that the legislature placed the sole right to litigate these matters within the office of the State’s Attorney, and that such provisions are strictly construed.

We believe section 12-25 of the Mental Health Act was intended to permit the State’s Attorney to act when requested by the Department, and it was not intended to abrogate any of the powers and duties of the Attorney General. In Fergus v. Russel, 270 Ill 304, 110 NE 130 (1915), it is said (p 339):

“The Attorney General is vested with many powers and duties, and these appertain to his office under the constitution. He cannot be deprived of these common law functions by the legislature, but new duties may be imposed.”

In People ex rel. Barrett v. Finnegan, 378 Ill 387, 38 NE2d 715 (1941), it is said (p 393):

“As chief law officer of the State he may exercise all such power and authority as public interest may from time to time require.”

The duties of the Attorney General are set forth in chapter 14, section 4 (Ill Rev Stats 1965) and include:

“Second — To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.”

We conclude from the foregoing that the Attorney General of the State of Illinois, as chief law officer of the state, possessed both the common-law power and the statutory authority to act on behalf of the Department of Mental Health in the instant proceeding. Furthermore, we fail to find that defendant’s rights in this proceeding could be affected in any manner, whether the Department was represented by either the Attorney General or the State’s Attorney.

Defendant’s contention of nonliability is grounded on the “Saving Clause” of the Mental Health Act of 1951, § 16-1, which provided:

“The provisions for repeal contained in this Act shall not in any way affect an offense committed, an act done, a penalty, punishment, or forfeiture incurred, or a claim, right, power or remedy accrued under any law in force prior to the effective date of this Act.”

From this defendant argues that the effect of the “Saving Clause” was to preserve his rights and immunities under the act, because his wife had been committed prior to the effective date of the act, and that the judgment is a “deprivation of substantive rights under ‘Due Process’ ” and in violation of the 14th Amendment. The Department argues that the actual effect of the “Saving Clause” was to give cognizance and effect to the rights enumerated for that period which preceded the imposition of the statutory charge and made clear that said charge was not to be applied retroactively. The Department also asserts that to give effect to defendant’s contention would create a disparity among those similarly situated for those who have been inmates of mental institutions after January 1, 1952, would be treated in a different and discriminatory manner than those admitted prior to that date, and in violation of section 22, Article 4 of the Illinois Constitution.

Sections 9-19 to 9-25 of the Mental Health Code of 1951 were discussed at length in Kough v. Hoehler, 413 Ill 409, 109 NE2d 177 (1952), and held constitutional. In that case the arguments included that the sections constituted arbitrary classifications “in violation of the ‘equal protection of the laws’ and ‘due process of law’ guarantees of the fourteenth amendment to the constitution of the United States, and that they constitute legislation in violation of section 22, article IV of the [Illinois] constitution.” In holding that the provisions of these sections were constitutional, the court’s remarks included (p 418):

“Since these charges partake of a public charity, (rather than a governmental purpose,) the original cost of which is borne by the public, it is entirely proper and fitting that the patients, their estates and relatives, in so far as they are able, should reimburse the State for so much of the expense of their care as possible, and thereby lessen the burden upon the public.”

In Department of Public Welfare v. A’Hern, 14 Ill2d 575, 153 NE2d 22 (1958), a claim was filed against the estate of an incompetent for maintenance charges, and in holding that it was a proper claim, the Supreme Court said (p 579):

“It is thus obvious from the statute that liability of the patient, his estate, or the specified responsible person exists at all times, either from the effective date of the act or from the admission of the patient, whichever occurs later. . . . The principle of making retroactive charges for the furnishing of such care by a public body is not new, but is a common-law remedy. ... No provision of the Mental Health Code provides that such services are gratuitous where an ability to pay appears, and no officer can form such a gratuitous intention.”

In Department of Public Welfare v. Bohleber, 21 Ill2d 587, 173 NE2d 457 (1961), it is said (p 592):

“As is demonstrated in Department of Public Welfare v. A’Hern, 14 Ill2d 575, there is nothing in section 9-21, or in section 9-25, (which provides that costs will be borne by the State if there is no one able to pay) which extinguishes the liability fixed by section 9-19, or limits the State’s right and duty to claim and collect maintenance costs, should any liable person or estate acquire the ability to pay in whole or in part.”

We conclude from the foregoing authorities that the liability of defendant for the maintenance of his wife commenced on January 1, 1952, the effective date of the Mental Health Act of 1951, and the “Saving Clause” made clear that any maintenance charges were not to be applied retroactively and did not confer any prospective exclusive privilege or immunity from charges to patients who might have been inmates of a state institution prior to January 1, 1952. The only vested right possessed by defendant or his wife was that either or both could not be charged for any prior maintenance.

Defendant’s final contention that a magistrate of the Circuit Court is without jurisdiction to entertain a suit for a statutory debt is without merit. Judgment against defendant for $9,588.50 was entered March 10, 1966, by a magistrate of the Circuit Court of Cook County. We consider the instant proceedings and the amount of money involved come within the provisions of section 622 of Courts (Ill Rev Stats 1965, c 37), which defines the civil proceedings assignable to a magistrate.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Max Prosk, et al., Plaintiffs-Appellants, v. The Allstate Insurance Co., a Corporation, Defendant-Appellee.
    Gen. No. 51,445.
    First District, First Division.
    April 24, 1967.
    Block,' Levy & Becker and Edward M. Platt, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann & Horan, of Chicago (John M. Moelmann and D. Kendall Griffith, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Plaintiffs seek coverage under the uninsured motorist provision of their insurance policy and a declaration that the policy’s definition of “hit-and-run automobile” is null and void to the extent that it requires physical contact between the unidentified automobile and the automobile which the insured is occupying. The court allowed defendant’s motion for judgment on the pleadings and a stipulation. Plaintiffs appeal.

Plaintiffs’ policy was dated February 27, 1964, and the complaint alleged that on January 3, 1965, while plaintiff, Max Prosk, was operating his automobile, with his wife, Anna Prosk, as a passenger, the plaintiffs “were caused and forced to strike” a parked truck “by an unknown and unidentified driver of an unknown automobile which automobile continued on after causing said collision.” It was stipulated that “there was no contact between the automobile being operated by Max Prosk and in which Anna Prosk was a passenger, and the unknown automobile operated by an unknown driver, which is referred to in paragraph 8 of the plaintiffs’ complaint.”

Plaintiffs’ insurance policy included “Protection Against Bodily Injury By Uninsured Automobiles” and a definition that “hit-and-run automobile” means “an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident . . . .”

It is plaintiffs’ theory that they sustained injury by a “hit-and-run” driver within the statutory meaning of the provisions of section 755a, “Uninsured or hit-and-run motor vehicle coverage” (Ill Rev Stats 1963, c 73), and therefore they are entitled to recover damages under their insurance policy, notwithstanding its “physical contact” proviso.

Plaintiffs argue that a “hit-and-run” provision which requires a physical contact with the insured’s automobile in order to be entitled to coverage “is an attempt to dilute and diminish the very protection which our legislature has decreed be made available to the motoring public,” and “when a statute provides that every policy of insurance contain a certain provision and the policy either fails to contain that coverage, or dilutes that coverage, the policy provision will be disregarded and the statute read into its place.”

Plaintiffs’ authorities include 22 ILP, Insurance, § 156, p 209:

“The fact that a statute requires inclusion of an omnibus clause in a liability insurance policy makes such inclusion mandatory, and the provisions thereof will be read into the liability policy to broaden the coverage consistent with a clear public policy reflected in the statute.”

In Konrad v. Hartford Accident & Indemnity Co., 11 Ill App2d 503, 137 NE2d 855 (1956), the court said (p 514):

“The statutory omnibus clause, in any event, must be, under the circumstances here, considered as voluntarily adopted by the insurer and written into this policy, and if there be any real differences between that and the similar clause stated in the policy . . . , the statutory omnibus clause must control.”

We agree with plaintiffs that the foregoing authorities demonstrate that any attempt by defendant to dilute or diminish statutory provisions applicable to its contract of insurance is contrary to public policy, and a conflict between statutory and policy provisions should be resolved in favor of the statutory provisions. We further agree that in the construction of a statute, it is proper for the court to look at the evils to be remedied and the objects and purposes to be obtained, and a statute enacted to meet a need of the people shall be liberally construed in order that the true intent and meaning of the General Assembly may be carried out.

Plaintiffs’ determinative contention is that the term “hit-and-run vehicle,” as used in the statute, “is not limited to an accident requiring physical contact between the vehicles.” Plaintiffs’ authorities include a number of language and dictionary definitions to show that the “hit-and-run” expression “is a twentieth century creation of the American press, borrowed from baseball journalism of the late nineteenth century.” From these authorities, plaintiffs assert that the word “hit” is not associated with a physical contact.

Defendant contends that the uninsured motorist coverage provided in the instant policy is not in conflict with section 755a, and the policy must be construed as written, according to the plain meaning of the language. Citations include Canadian Radium & Uranium Corp. v. Indemnity Ins. Co. of North America, 411 Ill 325, 104 NE2d 250 (1952), where it is said (p 332):

“The construction to be given insurance contracts, like other contracts, should be a natural and reasonable one. ... If the language is clear, the terms are to be taken and understood according to their plain, ordinary and popular sense. . . . But because the insurer is the one who prepares the contract, ambiguous or equivocal expressions whereby the insurer seeks to limit its liability will be construed most strongly against the insurer.”

Defendant notes that the word “hit” is defined in Webster’s Third International Dictionary (1961) as “l.a: a blow striking an object aimed at — contrasted with a miss .... b. an impact with one thing against another: collision.” Defendant asserts that the common dictionary meaning of both “hit” and “contact” require a touching of two objects, and the legislature intended to require “contact” when it used the word “hit.”

After considering the arguments of both sides and the authorities cited, including out-of-state pronouncements, we have concluded that there is no conflict between the statutory term “hit-and-run motor vehicle” and the policy requirement of “physical contact of such automobile.” The language of the statute is clear and unambiguous, and the legislative intent can be ascertained from its provisions without resort to other aids for construction. (People ex rel. Nelson v. Olympic Hotel Bldg. Corp., 405 Ill 440, 444, 91 NE2d 597 (1950).) We find that the uninsured or hit-and-run motor vehicle coverage required by section 755a, c 73, was not intended to include unidentified cars that may be present at the scene of an occurrence of bodily injury without a physical contact of the unidentified motor vehicle with the insured or an automobile occupied by the insured.

For the reasons stated, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: JUSTICE BRYANT.

text:
    People of the State of Illinois, Appellee, v. Ernest Young, Appellant.
    Gen. No. 50,513.
    First District, Second Division.
    April 25, 1967.

      William H. Hall, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: PRESIDING JUSTICE LYONS.

text:
    Cosmopolitan National Bank of Chicago, Trustee Under Trust No. 10151, Plaintiff-Appellant, v. Jacob Wheeler, Defendant-Appellee.
    Gen. Nos. 51,171 and 51,172.
    First District, Second Division.
    April 25, 1967.
    Benjamin A. Rasky, of Chicago, for appellant; no appearance made for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: ME. JUSTICE BUEKE

text:
    Seymour Zeinfeld, Plaintiff-Appellant, v. Hayes Freight Lines, Inc., an Illinois Corporation and David H. Ratner, Defendants-Appellees.
    Gen. No. 51,147.
    First District, Second Division.
    April 25, 1967.

      Elmer Gertz, of Chicago (Sidney Z. Karasik, of counsel) , for appellant.
    Robert F. Hanley, A. Daniel Feldman and David J. Rosso, of Chicago (Isham, Lincoln & Beale, of counsel), for appellees.
   ME. JUSTICE BUEKE

delivered the opinion of the court.

This is an action in two counts, the first for libel and the second for interference with contract. The trial court granted defendants’ motion for judgment on the pleadings as to Count I on the ground that it stated no cause of action. Summary judgment was granted in favor of defendants as to Count II. Plaintiff appeals from both judgments.

Count I alleged that in the summer of 1958, plaintiff was contemplating the purchase of a home in Park Forest, Illinois, which he intended to finance through a mortgage. The home builder, Park Forest Homes, Inc., sent a form questionnaire to Hayes Freight Lines, Inc., requesting verification of plaintiff’s employment by the company. Count I further alleged that defendant Eatner, the president of Hayes Freight Lines, “maliciously, in bad faith and intending to injure plaintiff’s good name, reputation and credit,” went beyond the formal employment verification request by making response to Park Forest Homes in a letter (hereinafter referred to as the “Park Forest letter”) that plaintiff had theretofore been in the employ of Hayes Freight Lines for a period of seven years and was in charge of the books and records of the company; that after his leaving the employ of the company it was discovered that he owed a substantial sum of money to the company; that upon tracing him he offered a compromise; and that under the circumstances it was difficult to give plaintiff any reference. Count I further alleged that defendants intended by the letter to imply that plaintiff was a person of bad reputation and credit and was entitled to no consideration or credit in the purchase of a home or otherwise, and that the letter was so understood by Park Forest Homes which thereafter refused to procure a mortgage for plaintiff.

Plaintiff’s offer of proof as to Count I sought to establish by Alvin Clouse, a chief accountant for Hayes Freight Lines, Inc., that plaintiff’s borrowings from Hayes Freight Lines were made with the knowledge and approval of the officers of the company; that the loans were carried as “accounts receivable” on the books of the company; and that the plaintiff never requested the accounts to be concealed or misstated. Plaintiff further offered to show that defendant Ratner’s remarks led certain friends of plaintiff to believe that plaintiff had improperly manipulated the books of Hayes Freight Lines so as to conceal the indebtedness.

In answer to Count I defendants denied they acted with malice and denied the innuendo alleged in the count with regard to the Park Forest letter. It was affirmatively asserted that the Park Forest letter was written in response to the home builder’s inquiry, was intended solely to apprise the builder of the information requested, and that, as such, was a privileged communication.

Count II of the complaint alleged that plaintiff, in May of 1957, sought to leave the employ of Hayes Freight Lines and had communicated this fact to defendant Ratner. The count further alleged that plaintiff sought business associations with representatives of several truck lines who were familiar with plaintiff’s work and “had confidence in his integrity and ability” and that in each instance plaintiff received a favorable initial response. It was alleged that the person or firm with whom plaintiff had been in contact refused to have any further dealings with him after plaintiff had discussed the respective situations with Ratner, and that it was plaintiff’s information and belief that it was defendants’ actions and interposition which prompted such persons or firms to refuse to associate with plaintiff. Count n alleged that defendants’ actions in this regard were malicious, wrongful and in violation of plaintiff’s rights. Defendants denied the commission of any wrongful or malicious acts or that they in any way interfered with plaintiff’s negotiations in this regard.

Plaintiff offered to show as to Count II that a person named Lickerman, one of the individuals with whom he had been negotiating an association in a trucking firm, had stated during the course of his refusal to associate with plaintiff that he had a conversation with Ratner and that Lickerman refused to pursue the subject further. In his deposition, plaintiff made the following statement in connection with defendant Ratner’s alleged discussions with plaintiff’s prospective business associates: “I am assuming that these people contacted Mr. Ratner and that he had made statements to them. This is my assumption. I have no evidence. Nobody told me about it.”

Plaintiff maintains as to Count I that the trial court erred in granting defendants’ motion for a judgment on the pleadings for the reason that the Park Forest letter wrongfully imputed to plaintiff a want of integrity in his business capacity that the letter was not a privileged communication in that it went beyond the scope of the employment verification requested by Park Forest Homes, Inc., and that there could have been no privilege in the communication since plaintiff alleged malice in the complaint. We disagree.

A motion for judgment on the pleadings will be allowed when the court is able to determine from the pleadings alone the relative rights of the parties in the subject matter; in passing upon such motion the court must consider only those material facts and allegations which are well pleaded, disregarding all surplusage and conclusory allegations. Proesel v. Myers Pub. Co., 48 Ill App2d 402, 199 NE2d 73; W. Q. O’Neall Co. of Illinois v. Coon Run Drainage and Levee Dist., 319 Ill App 324, 49 NE2d 283. In evaluating the language of the Park Forest letter for the purpose of determining the motion for judgment on the pleadings, the innuendo allegedly contained in the letter alluded to by the plaintiff in the complaint must be disregarded; the words of the letter must be given their natural and ordinary meaning. LaGrange Press v. Citizen Pub. Co., 252 Ill App 482.

The letter which defendant Eatner wrote in response to the employment verification inquiry of Park Forest Homes, Inc., was as follows:

“Your request for information concerning Mr. Zeinfeld was forwarded to me by Mr. Mattingly for my reply. Mr. Zeinfeld was the controller (sic) of Hayes Freight Lines for seven years and as such was in complete charge of the books and records. After his leaving the company we discovered there was a substantial amount of money owed the company. Upon tracing him he offered to compromise. Under the above circumstances it is difficult for me to give him any reference.”

Language which is alleged to be libelous but which is capable of being read innocently must be so read and must be declared nonactionable as a matter of law. John v. Tribune Co., 24 Ill2d 437, 225 NE2d 434; see also Kamsler v. Chicago American Pub. Co., Inc., 82 Ill App2d 86, 225 NE2d 434. Nothing in the letter in the case at bar can be taken as passing upon the integrity of the plaintiff. The language of the letter is capable of an innocent construction. It does not imply that plaintiff is dishonest nor that he had embezzled money or “skipped town owing money,” as plaintiff implies. “Owing money” does not mean “embezzling money” nor does “tracing plaintiff” imply that he left town in an attempt to conceal the fact that he owed money.

The wording of the Park Forest letter is strikingly similar to the language used by one of the defendants in the case of Judge v. Rockford Memorial Hospital, 17 Ill App2d 365, 150 NE2d 202. Plaintiff, a registered nurse, charged that defendant had libeled her by means of a statement made by a supervisor nurse to the effect that several vials of narcotics had disappeared from a locked medicine cabinet in an area where plaintiff had been on duty; that plaintiff was seen taking vials of narcotics although her patients’ charts showed administration of other medication; and that at the time when the supervisor interviewed the plaintiff concerning the loss of the narcotics, the plaintiff had “a most unusual and abnormal reaction.” The court found that the language did not impute to plaintiff the commission of a crime, that of stealing the narcotics.

The Park Forest letter was written by defendant Ratner on behalf of defendant Hayes Freight Lines in response to an inquiry by a party who was interested in checking on plaintiff’s job performance in connection with his ability to pay off a mortgage. The question of whether the letter was privileged was one of law for the court. Judge v. Rockford Memorial Hospital, 17 Ill App2d 365, 384, 150 NE2d 202.

The Park Forest letter is not libelous per se; plaintiff was consequently required to allege in the complaint something more than the statement was “maliciously made” or that defendants “disliked plaintiff” or “bore him ill will.” See De Mott v. Amalgamated Meat Cutters and Butcher Workmen of North America, 157 Cal App2d 13, 320 P2d 50 (1958). Where malice is the foundation of a complaint for libel and the allegation of libel is founded upon facts existing beyond the statement itself, those facts must be alleged in the complaint. Segall v. Lindsay-Schaub Newspapers, Inc., 68 Ill App2d 209, 215 NE2d 295. No specific allegation of malice is made in the complaint, nor are any circumstances alleged which could give rise to an inference that malice prompted the Park Forest letter. Plaintiff does no more than make general and conclusory allegations of malice in Count I, insufficient to overcome the privileged communication of the letter or to state a good cause of action against defendants.

Count II of the complaint alleges interference with present and prospective contracts and business associations of plaintiff. The trial court properly rendered summary judgment in favor of defendants based upon the pleadings and other matters before the court, which gave rise to no genuine issue as to any material fact. Ill Rev Stats 1965, c 110, par 57.

The entire Count II is predicated upon conclusions and conjecture. Based upon plaintiff’s own testimony in his deposition, the trial court was justified in rendering summary judgment. In testifying concerning the prospective business associations with which defendant Ratner had allegedly interfered, plaintiff made the comment that he assumed that the prospective business associates contacted Mr. Ratner and that he had made statements to them. He stated that this was solely an assumption on his part, for which he had no evidence, and that no one told him about such matters. Plaintiff also stated that he could not recall the names of any persons who informed him concerning defendant Ratner’s alleged interference with his business negotiations. (In passing it should be noted that defendants specifically denied having in any way discussed plaintiff with any person with whom he was negotiating the various business deals.) The only matter which remotely bears upon the question of interference with contract is plaintiff’s testimony in his deposition concerning his conversation with Mr. Lickerman after Lickerman had declined to go through with a business proposition. Plaintiff stated that Lickerman said that “some information had come to his attention” and that upon pressing Lickerman “about it he mentioned Dave [Ratner’s] name,” but that Lickerman refused to elaborate. This is no more than conjecture and conclusion on plaintiff’s part; merely because the name of defendant Ratner entered into the conversation does not necessarily mean or imply that Ratner had anything to do with the failure of plaintiff’s prospective business association with Lickerman. A further example of the type of grounds upon which plaintiff’s claim in this regard is based can be found in his statement that he “admitted at one point that no prospective seller had ever told him that Ratner had interfered in the purchase negotiations. But just as defendants had knowingly and maliciously lied to Park Forest Homes, Inc., it is clear that they may have done so in other instances.”

Depositions were given by Clarence Todd and Kern Smith, two of the persons with whom plaintiff had been negotiating and who were named by plaintiff as allegedly having been influenced by Ratner into breaking off negotiations, in which they specifically denied ever having been so influenced. The reasons given by the two men for the failure of the negotiations between plaintiff and themselves were that one of the truck lines received better offers from persons other than plaintiff and that the other line went into bankruptcy. Both men testified categorically that they did not discuss plaintiff with defendant Ratner at any time before or during their negotiations with plaintiff. Mr. Smith further testified that he did not meet Mr. Ratner until several months after the supposed interference had occurred. We are of the opinion that Count II of the complaint as well as the matters filed in support thereof consist of conclusions and conjecture and do not give rise to any genuine issue of material fact. The trial court properly granted summary judgment in favor of the defendant on this count.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: MR. JUSTICE BURKE

text:
    Stanley Koziol, Plaintiff-Appellee, v. Estelle Harris, Talman Federal Savings and Loan Association of Chicago, and Home Federal Savings and Loan Association of Chicago, Defendants. Estelle Harris, Defendant-Appellant.
    Gen. No. 51,184.
    First District, Second Division.
    April 25, 1967.
    Raymond I. Suekoff, of Chicago (Stuart C. Katz, of counsel), for appellant.
    Edwin R. Mysogland, of Chicago (Edward L. Stepnowski, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This is an appeal from a decree restraining Estelle Harris, hereinafter called the defendant, from withdrawing funds from savings accounts standing in the names of plaintiff and defendant as joint tenants, from withdrawing funds from other accounts standing in the names of defendant and her son, and decreeing that all funds in the accounts belong to plaintiff.

Plaintiff, a bachelor, resided with his mother during her lifetime and after her death resided in the home of his sister, Victoria Pall. During the periods of residence with his mother and with Mrs. Pall plaintiff’s assets consisted entirely of funds in several savings accounts which he held in joint tenancy with his mother and after the mother’s death with Mrs. Pall. Upon the death of Mrs. Pall in October of 1963, plaintiff continued to reside in the Pall residence until April of 1964, when he began to live with defendant, his sister.

Prior to April of 1964 in conversations between plaintiff and defendant, the latter suggested that plaintiff reside with her due to alleged mistreatment of plaintiff at the Pall residence and that plaintiff transfer the funds in his savings accounts into joint tenancy with defendant, for plaintiff’s protection.

On January 23, 1964, plaintiff and defendant went to the Taiman Federal Savings and Loan Association where plaintiff had savings accounts and a safety-deposit box in his and Mrs. Pall’s names, in joint tenancy. Defendant’s name was placed on the safety-deposit box, which gave her access to the box. Two new savings accounts were opened by plaintiff, one in the amount of $9,000 in his and defendant’s names as joint tenants and the other in the amount of approximately $3,300 in plaintiff’s name and defendant’s name as trustee for plaintiff. (Plaintiff explained that the reason why two separate accounts were opened was so the F.D.I.C. insurance would cover the entire $12,300.)

On the same day plaintiff and defendant went to the Home Federal Savings and Loan Association where an account in the names of plaintiff and Mrs. Pall, in an amount approximating $6,100, was changed to the names of plaintiff and defendant in joint tenancy. Another account was opened at the Guardian Savings and Loan Association in the names of plaintiff and defendant in joint tenancy. This account has been closed and is not litigated.

Plaintiff went to live with defendant’s family in April of 1964. In September he was requested to return to the Pall residence for the reason that defendant was leaving for Washington with her son. Approximately one week later defendant withdrew $3,000 from the Taiman Federal joint tenancy account and deposited it into a joint savings account with her son at the Lake View Trust and Savings Bank. On the same day defendant withdrew all of the funds on deposit in the Home Federal account, over $6,100, and deposited this amount into a joint savings account with her son at the First National Bank of Chicago. Plaintiff and defendant did not discuss any of these withdrawals prior to this time.

Defendant, called as an adverse witness under section 60 of the Civil Practice Act, testified that she had made several withdrawals from the accounts prior to September of 1964 for the purpose of financing plaintiff’s automobile, paying the interest on the automobile loan and generally for plaintiff’s benefit. She also testified that plaintiff consumed a great deal of alcohol and that the reason she withdrew the $9,000 from the two accounts in September was “for one purpose — to keep [Stanley] from getting the money and blowing it,” and that she felt “[Stanley] should be taken care of in later years.” Defendant testified that she at no time discussed with plaintiff withdrawals of money for her own purposes and that she at no time paid income tax on the interest earned on the accounts although she received the tax information slips, which she turned over to plaintiff. Defendant testified that at the time the accounts were put into joint tenancy by plaintiff the clerk at the Savings and Loan Associations explained that defendant would have the power to withdraw all of the funds from the accounts for any purpose and that plaintiff could do nothing about it. Defendant testified that plaintiff replied, “That is all right, I want her name on it. . . . She can draw it, or I can draw it.”

Plaintiff testified that the funds in the Taiman Federal and Home Federal accounts comprised his entire estate, that he and his mother had deposited the funds into the accounts from his savings over the years, and that his employment netted him $65 a week. He stated that he had no home or apartment of his own and that at the time he resided with Mrs. Pall prior to her death he held his savings accounts in joint tenancy with her. Plaintiff testified that after the death of Mrs. Pall defendant told him to change the accounts into her name and to reside with her, and that after defendant had withdrawn the funds from the Taiman Federal and Home Federal accounts she refused to return the money to plaintiff.

The master found, inter alia, that the funds in the accounts from which defendant made the withdrawals belonged solely to plaintiff and that none of the funds belonged to defendant. The trial court ordered that defendant be restrained from withdrawing or in any way disposing of the funds remaining in the Taiman Federal accounts, the First National account and the Lake View Savings account, that the institutions wherein the funds were deposited be restrained from disbursing any of the funds to defendant, and that defendant turn over to plaintiff all funds withdrawn from the Taiman Federal and the Home Federal accounts. Judgment was entered for plaintiff and against defendant for the, amounts withdrawn from the Taiman Federal and the Home Federal accounts and for costs.

Defendant maintains that plaintiff, in placing his funds in joint tenancy savings accounts, made an inter vivos gift to her of an interest in the accounts. We disagree.

This case presents the unusual situation of the creator of a joint savings account seeking to prevent the other joint tenant from exercising control of the account on the grounds that no gift was intended to be made to the latter at the time the account was created. Normally the alleged donor is deceased, and his legatee, heir or personal representative seeks to avoid the alleged gift. While it is true, as defendant maintains, that a deposit of funds into a joint account with another person constitutes evidence of a gift to the joint tenant (In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445,) it does not necessarily follow that a gift is created in all cases. The evidence in the case at bar, especially defendant’s own testimony, strongly weighs against the requisite donative intent on plaintiff’s part as well as the existence of a gift.

Defendant testified that in September of 1964, she “withdrew the money for one purpose — to keep my brother from getting the money and blowing it.” She further testified: “I feel that he should be taken care of in later years. ... I feel that it is his money.” The question of ownership of the funds in the accounts was pursued by plaintiff’s counsel and defendant stated at one point that she believed it was as much her money as it was plaintiff’s, but admitted that “I feel it was his money, . . . The way I feel it is still his money.” It was admitted by defendant that all of the withdrawals made by her were for the benefit of the plaintiff; all of the funds withdrawn from the accounts by defendant were given to plaintiff and defendant at no time withdrew any funds for her own personal use or purposes. Defendant never accepted the alleged gift, in no way exercised authority over the funds in the accounts inconsistent with plaintiff’s ownership, nor took any action with regard to the funds commonly associated with the ownership of personal property. Estate of Kloss, 57 Ill App2d 118, 125, 207 NE2d 92. On the contrary, defendant affirmatively admitted plaintiff’s ownership of the funds. Defendant’s claim of a present, inter vivos gift from plaintiff in the accounts finds little support in the record.

The evidence strongly indicates that the names on the accounts were changed for convenience only. Plaintiff had in the past similarly held his accounts in joint tenancy with the persons with whom he resided. Furthermore, the funds placed into joint tenancy with defendant consisted of plaintiff’s entire estate. It is unreasonable to presume a gift or an advancement where the subject consists of the entire estate of the alleged donor. Scanlon v. Scanlon, 6 Ill2d 224, 127 NE2d 435. The evidence shows that no gift was created by plaintiff’s action of placing his accounts into joint tenancy with defendant.

For these reasons the decree is affirmed.

Decree affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lafayette Atkins, Defendant-Appellant.
    Gen. No. 50,127.
    First District, Third Division.
    April 27, 1967.

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

delivered the opinion of the court.

Following a trial without a jury the defendant was convicted of the unlawful possession of a narcotic drug and was sentenced to the penitentiary for a term of two to five years. He contends (1) that the arresting officers lacked probable cause to make the arrest and subsequent search; (2) that he should have been released from custody when the search failed to disclose narcotics on his person; and (3) that a statement taken from him while in custody was inadmissible because he had not been advised of his rights to counsel and to remain silent. The facts follow.

Inspector Mitchell Ware of the State Narcotics Division testified that on September 15, 1963, at about 5:10 p. m. he received a telephone call from an informer who told him that defendant was parked in a yellow Ford, license number MB 7085, at 4725 South Champlain Avenue in the City of Chicago; that defendant had just completed a sale of heroin; and that a woman seated with defendant in the front seat of the car, supplied defendant with the narcotics. The informer gave a physical description of the defendant and the woman and stated that he (the informer) would wait on the street and signal the police when they arrived. Ware testified that he drove to the corner of 47th Street and Champlain Avenue and received a signal from the informer; that he observed two people fitting the description given by the informer seated in a yellow Ford with the license plates hereinbefore noted; and that with the aid of two Chicago policemen, he placed the defendant and the woman, one Pearlie Williams, under arrest. Ware stated that he found no narcotics in defendant’s possession, but that Pearlie Williams was holding a piece of cellophane containing 13 tinfoil packets of heroin. Defendant was taken to the Police Station at 29th Street and Prairie Avenue and questioned by Ware, at which time the defendant admitted that the narcotics were his and that “Miss Williams actually didn’t know it was narcotics . . . and he did not want Miss Williams to go to jail for having his narcotics in her possession.” Defendant moved to suppress the narcotics evidence on the ground that the arrest and search, in which the narcotics were seized, were made without probable cause in violation of sections 6 and 10 of Article II of the Illinois Constitution. Ware testified at the hearing on the motion to suppress and related the above account of the arrest, but refused to divulge the identity of the informer. He stated however that this particular informer had supplied information on more than twenty occasions in the past and that arrests and convictions had resulted. Ware recalled the name of the last individual so convicted and stated that he had records in his office of the other cases in which the informer had participated. Defense counsel dropped the matter at that point. On the basis of this testimony, the trial court denied the motion to suppress.

As to point (1), defendant argues on appeal that the search and seizure were in violation of the Fourth Amendment to the United States Constitution, and he makes a two-pronged assault on the police procedure hereinbefore outlined. First, he contends that the State failed to establish the past reliability of the informer and therefore did not comply with the requirements under Illinois law. People v. Durr, 28 Ill2d 308, 192 NE2d 379; People v. McFadden, 32 Ill2d 101, 203 NE2d 888. In People v. Durr, supra, the Illinois Supreme Court held, by a 4-3 margin, that probable cause for an arrest had been established where the arresting officer testified that he had had previous conversations with the informer and that the information furnished him in those conversations had been reliable. The dissenters agreed with the principle that probable cause for an arrest could be shown by testimony as to the reliability of an informer, but felt that in that case the showing was not sufficient. In People v. McFadden, supra, a unanimous court held that probable cause had been shown where, in addition to the testimony of the police officer that the information came from a reliable source, the court noted that there had been “independent verification of all the present information, except possession of narcotics by defendant. . . .” More recently the court applied the same rationale in sustaining an arrest under practically identical circumstances. People v. Freeman, 34 Ill2d 362, 215 NE2d 206. In the instant case Officer Ware vouched for the past reliability of his informant and testified to circumstances corroborating the information he had received; that is, that two people fitting the informer’s description were seated in a yellow Ford, with a specific license number, at a specific address. We conclude that the State complied with the requirements under Illinois law as to the showing of probable cause.

The second phase of defendant’s first contention challenges the constitutionality of the method of police operation here employed; that is, reliance upon an undisclosed informer to provide probable cause for an arrest. The use of an unidentified informer to establish probable cause was sanctioned by the United States Supreme Court in a recent case involving an Illinois defendant. McCray v. Illinois, 386 US 300 (decided March 20, 1967). The Court held that where the question involved was one of probable cause for an arrest, and not the guilt or innocence of the accused, it was sufficient for the arresting officer to testify that he had acted upon information supplied by a reliable informer. The Court distinguished Roviaro v. United States, 353 US 53, relied upon by defendant in the instant case. There a conviction was reversed because of the refusal of the prosecution to identify the informer, the defendant having made a showing that the informer might prove vital to his defense at trial. The Court in McCray said:

“The arresting officers in the case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. . . .
“Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury.”

With respect to the claim made by defendant that the failure of the prosecution to identify the informer was a violation of the Sixth Amendment right of confrontation, the Court cited Cooper v. California, 386 US 58, (decided February 20, 1967), which held that there was no deprivation of a constitutional right where the prosecution fails to call the informer as a witness. In view of the holding in McCray v. Illinois, supra, the trial court properly denied defendant’s motion to suppress.

Defendant’s second allegation of error is that he was detained unreasonably after a police search failed to show that he had narcotics in his possession. He concludes from this that a statement taken from him while he was in custody should have been held inadmissible because the cause for his arrest “had withered.” There is no merit to this contention. The information given to Officer Ware was that defendant was selling narcotics which were being supplied to him by a woman seated alongside of him in a car. This information proved to be entirely accurate. The police, finding a large quantity of heroin in the woman’s hand, were justified in taking defendant into custody and questioning him about the alleged sale of narcotics.

We proceed to a consideration of defendant’s last point, that evidence of his admission with respect to the possession of narcotics was improper because he was not advised of his rights to counsel and to remain silent. Trial in this cause was commenced prior to the dates of the decisions in Escobedo v. Illinois, 378 US 478 (June 22, 1964) and Miranda v. Arizona, 384 US 436 (June 13, 1966). In Johnson v. New Jersey, 384 US 719, the Court held that the rulings in the cases hereinbefore cited need not be applied retroactively. Illinois has adhered to the position that a confession made voluntarily before the effective dates hereinbefore noted should be held admissible. People v. Jackson, 35 Ill2d 162, 220 NE2d 229. We find no error in the trial of this case, and the judgment will be affirmed.

Judgment affirmed.

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


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph A. Chickerillo, et al., Defendants-Appellants.
    Gen. Nos. 50,209, 50,210, 50,212, 50,216, 50,220, 50,221 and 50,223.
    First District, Third Division.
    April 27, 1967.
    Joseph I. Bulger, of Chicago, for appellants; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Charles G. Mutz and Mary K. Mutz, Plaintiffs-Appellants, v. Village of Villa Park, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 66-105.
    Second District.
    April 26, 1967.
    Rehearing denied and opinion modified June 9, 1967.

      Leonard Bosgraf, of Chicago, for appellants.
    Kenneth S. Jacobs and Charles W. Spencer, of Villa Park, and Robert H. Wier, of Elmhurst, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is a declaratory judgment action to change the zoning of plaintiffs’ property, under the zoning ordinance of the Village of Villa Park, from a R-3 single-family dwelling to a B-3 business classification, which would permit a gasoline service station use. While the suit was pending, the Village rezoned the plaintiffs’ property and other similarly situated property to a R-4 two-family classification. After a bench trial, the court entered a final decree in favor of the Village and the plaintiffs appealed.

The plaintiffs’ property is located at the southwest corner of Washington Street — which runs in an easterly and westerly direction — and Route 83 — which proceeds in a northerly and southerly direction through the Village of Villa Park. It consists of lots 4 and 5, which are unimproved and front on Washington Street on a chord, a distance of 90.69 feet, and have an easterly boundary on Route 83 of 153.45 feet; and the east 50 feet of lot 1 and a small triangular part of lot 2, which lots front on Riverside Drive — the first street west of and parallel to Route 83.

Lots 4 and 5 were purchased by the plaintiffs in 1962 for the sum of $8,000. Plaintiffs reside in a home located on lots 1 and 2, which front on the east side of Riverside Drive. Lots 1 and 2 abut lots 4 and 5 on the east.

The first street south of and parallel to Washington Street is Madison Street: and Highland Avenue is the first street north of and parallel to Washington. In the block bounded by Washington Street on the north, Madison on the south, Riverside Drive on the west, and Route 83 on the east, the distance between Riverside Drive and Route 83 is 240 feet. The lots facing Riverside Drive have a depth of 150 feet, and lots 4 and 5 have a width of 90 feet when measured at a right angle to Route 83. The homes on the east side of Riverside Drive front westerly, and the rear of such homes and the attendant outbuildings face Route 83.

Madison Street is the southerly limits of the Village for a distance of a few blocks west of Route 83, except for an inverted L-shaped parcel of land which extends south of Madison Street along Route 83 to Jackson Street. The Illinois Central railroad tracks are its northerly limits for a distance of about eight blocks westerly from Route 83. The streets from the south to the north, which run in an easterly and westerly direction within the Village limits beginning at Jackson Street and proceeding northerly to the elevated railroad tracks of the Great Western Railroad just north of Park Boulevard, are: Jackson, Madison, Washington, Highland Avenue and Park Boulevard. And, the streets immediately westerly of and parallel with Route 83, are: Riverside Drive, Monterey and Oakland Avenues.

The property on the west side of Route 83, including that owned by the plaintiffs, is 90 feet in depth. It is vacant, from the elevated railroad tracks of the Great Western Railroad on the north, to a point on the south a short distance from Madison Street where certain homes are located, with the exception of one residence fronting on Park Boulevard.

North of the elevated railroad tracks, the property is zoned and used for industry. Further north — at the southwest corner of St. Charles Road and Route 83— a truck weighing station, operated by the State of Illinois, is located; and at the northwest corner of that intersection, a gasoline service station is in operation.

Lauerence Kenyon, the Village Manager, testified that the Caliendos own the inverted L-shaped parcel of land which extends south of Madison Street along Route 83 to Jackson Street; and that a strip of this land 180 feet in depth, south of Madison Street,- is zoned single-family, is vacant, and serves as a buffer between the Village single-family residential classification and the remainder of the Caliendo property to the south, which is zoned for commercial uses. He further testified that the part of the Caliendo tract which is zoned B-l — the inverted part of the L, less the 180-foot strip — adjoins other property outside the Village and within the County; and that this adjacent property to the south to Van Burén Street is all zoned B-l. A landfill operation is in progress on this land. Further south are certain properties, improved with large buildings, used for the following purposes: a commercial tennis club; Wilson’s Horse Stable; a sewerage treatment plant; and land used for a sanitary landfill operation which is zoned Industrial in the City of Oakbrook Terrace.

The land uses on the east side of Route 83 from the south to the north, beginning at a point a little south of Madison Street as extended east of Route 83 and north to the elevated railroad tracks, are: Kieft Brothers (industrial use); Vogel-Peterson Co. (industrial use) ; Sunoco Service Station (business and commercial use); HI. Contractors’ Machinery, Inc. (industrial use); Power Equipment Co. (industrial use); Farley Equipment Co. (industrial use); L. E. Meyers Co. (industrial use) ; Oak-brook Animal Hospital (business and commercial use); Clark Service Station (business and commercial use); Elmhurst Sewage Plant (public and semipublic use); and Salt Creek Sanitary Dist., Villa Park (public and semipublic use).

With the exception of the 90-foot strip of property hereinafter described, abutting Route 83 on the west, which the Village rezoned as R-4 Limited Multiple-Family District on December 6, 1965, the area west of Route 83 for a distance of three blocks — which lies between the elevated tracks of the Great Western Railroad on the north and the south Village limits — is largely improved and is classified as single-family residential. The only other uses in this area are public and semipublic — being an elementary school and the DuPage County Easter Seal Center. And this same area west to the Village limits has no uses other than single-family residential, except for certain multiple-family uses and business uses along Park Boulevard. The multiple-family uses are located about three and one-half blocks west of Route 83, and the business uses about nine blocks west thereof.

Route 83 is heavily traveled. It has a traffic count of about 19,900 vehicles per day. Washington Street is a major thoroughfare which joins the Village and the City of Lombard. Lots 4 and 5 are low and subject to frequent flooding. However, the Village has offered the plaintiffs, and other lot owners similarly situated, the necessary fill to bring such lots to grade level, without cost.

Plaintiffs entered into a land purchase option, which was exercised on April 2, 1963, for the sale of the property in question to Humble Oil Company, subject to zoning, for the sum of $48,000. The Oil Company desires to improve the property with a residential-type, modern gasoline service station.

On October 9, 1962, the plaintiffs applied to the Village for rezoning of the site for use as a gasoline service station, and after a public hearing before the Plan Commission, their application was denied. On October 16, 1964, they filed this suit for declaratory judgment.

On December 6, 1965, the Village rezoned the plaintiffs’ property, together with the entire heretofore described 90-foot strip of property abutting Route 83 on the west, beginning about one-half block north of Highland Avenue and extending south approximately to Madison Street. Under this new ordinance, such property was changed from R-3 Single-Family Residence to R-4 Limited Multiple-Dwelling Classification.

The plaintiffs’ theory of the case is that by reason of the character of the area and the location of the property abutting on Route 83 — a high-speed four-lane freeway with heavy traffic — the subject property is unsuitable for residential purposes, but is suitable for a gasoline service station; that the existing ordinance represents an unreasonable and arbitrary exercise of the discretion vested in the Board of Trustees of the Village; and that the zoning ordinance is invalid insofar as it precludes the development of a gasoline service station on the property.

The defendant contends that by reason of the character of the plaintiffs’ property and the area surrounding it, to permit it to be used for a gasoline service station would be very deleterious to the surrounding residential uses and would constitute “spot-zoning” — the isolated inconsistent and contradictory use of land in relationship to its surroundings.

The Village further contends that the Zoning Ordinance at issue here is not invalid in that there has been no discrimination against the plaintiffs; that the exercise of the legislative power by the Village was not aribitrary; and that the evidence in the trial court showed that there was justification for a legitimate difference of opinion as to the reasonableness of the ordinance and, therefore, the court properly refused to substitute its judgment for that of the Board of Trustees of the Village — the legislative branch of the governmental unit in question.

It would serve no useful purpose to reiterate here the oft-repeated factors to be considered in determining whether a given zoning ordinance is invalid as applied to particular property. See: Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964). Such factors will be referred to herein insofar as they are relevant to the determination of this case.

We recognize that the zoning ordinance adopted by the Village is presumed valid, and the burden of showing it unreasonable and oppressive as applied to plaintiffs’ land, rested upon them. Camboni’s, Inc. v. DuPage County, 26 Ill2d 427, 432, 187 NE2d 212 (1963) ; First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 225, 130 NE2d 267 (1955) ; Fiore v. City of Highland Park, 76 Ill App2d 62, 71, 221 NE2d 323 (1966). In challenging the ordinance’s validity as applied to their property, the burden was on the plaintiffs to overcome this presumption, and to prove by clear and convincing evidence that the ordinance was unreasonable and unrelated to public health, safety or welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Fiore v. City of Highland Park, supra; Hoffmann v. City of Waukegan, supra.

Due to this presumption, if it appears from all of the evidence that there is justification for a legitimate difference of opinion as to the reasonableness of the ordinance, the legislative judgment of the Village must then be upheld. Urann v. Village of Hinsdale, 30 Ill2d 170, 175, 195 NE2d 643 (1964); First Nat. Bank of Lake Forest v. County of Lake, supra, 226; Fiore v. City of Highland Park, supra; Bowler v. Village of Skokie, 57 Ill App2d 321, 325, 207 NE2d 117 (1965). However, the fact that there is a difference of opinion among the witnesses — lay and expert — , does not mean that the court must find that the reasonableness of the ordinance is debatable and, thence, uphold the ordinance. In cases of this nature, a court must expect differences of opinion. It is for the court to determine from all of the facts whether the differences of opinion are reasonable and justifiable. Myers v. City of Elmhurst, supra, 544; La Salle Nat. Bank of Chicago v. County of Cook, supra, 47.

To sustain the validity of a zoning classification, it must bear a substantial relation to the public health, safety, comfort, morals or general welfare. Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 501, 502, 182 NE2d 147 (1962); First Nat. Bank & Trust Co. of Evanston v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958); Fiore v. City of Highland Park, supra, 71, 72. Within these limitations, the fixing of zoning lines is a matter of legislative discretion. Since zoning must begin and end somewhere, there will necessarily be different classifications on either side of a given boundary line. However, the existence of such difference in itself does not render the limitations on the use of property near the boundary line in a more restricted district unreasonable or invalid. Lapkus Builders, Inc. v. Chicago, 30 Ill2d 304, 310, 196 NE2d 682 (1964) ; Mundelein Estates v. Village of Mundelein, 409 Ill 291, 294, 99 NE2d 144 (1951).

Expert witnesses testified on behalf of both plaintiffs and the Village. While the testimony and opinions of the respective witnesses varied considerably, each expert witness offered substantial reasons to support his position. In considering the validity of a given zoning ordinance, each case must be decided on the sum total of its attendant facts. De Bruler Homes v. County of Lake, 78 Ill App2d 177, 183, 222 NE2d 689 (1967) ; Fiore v. City of Highland Park, supra, 73. In the case at bar, the trial judge could well have concluded that the R-4 zoning classification given to the 90-foot strip of vacant property along Route 83, which permitted the erection of duplex housing units thereon, was a residential transitional use; that such use would serve as a residential buffer between the R-3 single-family classification to the west and the business uses to the east; and that the R-4 classification should prevail over the B-3 business classification which the plaintiffs sought in order to locate a gasoline service station on their property.

Likewise, the court could properly have found that the B-3 classification, which would permit such service station on the plaintiffs’ property, would constitute an unwarranted business intrusion into an area which was residential in character; and that in the area in question, Route 83 was a proper demarcation between residential and business uses. The evidence firmly established the residential character of the area immediately north, south and west of plaintiffs’ property. The most that could be said for the plaintiffs’ proof was that it presented a fairly debatable question as to the reasonableness of the Ordinance. Under these circumstances, the question must be resolved in favor of the determination of the zoning agency in the absence of a clear abuse of its power. Urann v. Village of Hinsdale, supra; Fiore v. City of Highland Park, supra.

The loss in value of plaintiffs’ land is not, in itself, sufficient to justify setting aside the ordinance as unreasonable. Any financial disadvantage which plaintiffs may suffer was self inflicted, since the property was zoned R-3, a single-family classification, when they purchased it. De Bruler Homes v. County of Lake, supra, 184; Fiore v. City of Highland Park, supra, 73.

Plaintiffs have failed to discharge their burden of overcoming the presumption that the ordinance in question is valid. They have failed to show that their property is unsuited for multiple-residential development. The evidence is not clear and convincing that the existing R-4 zoning as applied to the property in question is arbitrary, unreasonable and does not bear a reasonable relation to public health, safety and welfare. It appears that there is at least room for a legitimate difference of opinion concerning the reasonableness of the zoning classification and, therefore, the legislative judgment must be conclusive. Koplos v. City of Rockford, 62 Ill App2d 268, 273, 274, 210 NE2d 629 (1965).

We conclude that the proof in the instant case does not show such arbitrary or capricious action on the part of the Board of Trustees of the Village as to indicate an unconstitutional exercise of its zoning function. There is nothing in the record which would compel us to substitute our judgment for that of the legislative body whose action has been sustained by the trial court.

The judgment of the Circuit Court of DuPage County is therefore affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: TRAPP, J.

text:
    Mary L. Callahan, et al., All Minors, by Mary L. Callahan, Their Mother and Next Friend, Plaintiffs-Appellees, v. Board of Trustees of the Fireman’s Pension Fund, Bloomington, Illinois, by Frank Totterer, President, Defendant-Appellant.
    Gen. No. 10,787.
    Fourth District.
    April 27, 1967.

      Joseph A. Londrigan, of Springfield, and James R. DePew, of Bloomington, for appellant.
    Loren Thomson, of Thomson, Thomson & Mirza, of Bloomington, for appellees.
   TRAPP, J.

This is an appeal from a judgment of the Circuit Court of McLean County, Illinois, holding that plaintiffs are entitled to receive a widow’s and dependents’ pension under the Firemen’s Pension Fund Act (Ill Rev Stats 1963, c 108%, § 4-114).

George L. Callahan was employed by the City of Bloomington, Illinois, as a fireman on August 15, 1957, after receiving a physical examination by a doctor, resulting in a finding that he was in excellent physical shape.

About seven years after his employment, specifically on July 22, 1964, a physical examination of Mr. Callahan disclosed a tumor of the chest which subsequently proved to be malignant. Mr. Callahan had been found free of complaints or health defects in April, 1963.

After he became ill in 1964, Mr. Callahan went on a 90-day sick leave and upon its expiration he was, at his own request, given a leave of absence without pay pursuant to Rule XII, § 8 of the Personnel Code of the City of Bloomington, which provides as follows:

“8. Leave Without Pay. The City Manager may grant a regular employee a leave without pay for a period not to exceed one year when it is in the interest of the City to do so. The employee’s request shall be considered when he has shown by his record it is desirable to retain the employee even at some sacrifice. During the employee’s approved leave of absence, his position may be filled by a limited term appointment, temporary promotion, or temporary reassignment of an employee. At the expiration of the leave without pay, the employee has the right to and shall be reinstated to the position he vacated if the position still exists; or, if not, to any other vacant position in the same class. Approved leaves without pay shall not constitute a break in service.”

During the time that' the leave without pay was in effect Mr. Callahan died, presumably of the lung cancer which had had its inception some time subsequent to April, 1963, and prior to July 22,1964.

The issue of the right of the widow and dependents to a pension is determined chiefly by the meaning of § 4-114 of c 108% (Ill Rev Stats, 1963), the pertinent part of which is as follows:

“4-114. Widow or dependent’s pension. If a fireman dies in the fire service as a result of any illness or accident which had its inception while he was in such service with pay, or if a fireman dies from any cause during his retirement for disability, or during his retirement after 20 years’ service, having made the contributions required in this Article, the Board shall direct the following payments from the fund:
“(a) To the widow of any active or retired fireman while unmarried, a monthly pension of 40 % of the monthly salary attached to the rank he held on the last day of his service in the fire department, and to the guardian of any minor child or children, 8% of such monthly salary for each such child until attainment of age 18”;

Appellant, Board of Trustees, makes the contention that the Firemen’s Pension Fund Act must be read as a whole to ascertain the legislative intent, and that, when so read, it does not provide any pension for a widow or dependents in the event of death of a fireman from causes not connected with his duties, unless and until the fireman has completed ten years’ active service and contribution to the pension fund.

Appellant’s reasoning is that the widow and dependents have strictly derivative rights, and that death of a fireman under circumstances in which a disabling injury or sickness would have given the fireman no pension rights, cannot give pension rights to the widow and dependents.

It is asserted that prior to the 1947 amendments to the Firemen’s Pension Fund Act, the only benefit for disablement by sickness or injury was one provided in case of disablement incurred in, and resulting from, the performance of duty. The 1947 amendment divided the disability cases into those “incurred in and resulting from the performance of any act or acts of duty,” and those resulting from “any cause other than the performance of any act or acts of duty.” The latter category attached a condition of active service of ten years to entitle the fireman to a retirement pension. (Ill Rev Stats 1947, c 24, § 922.) Appellant cites Sommers v. Patton, 399 Ill 540, 78 NE2d 313, and People ex rel. Schmidt v. Yerger, 21 Ill2d 338 on 342, 172 NE2d 753, to establish that the rights of widows and dependents are derivative. The situation there involved was that the legislature had increased benefits. It was conceded that, under § 19, Art IV of the Constitution of Illinois, increased benefits could not be given to a fireman after he retired. The court found that the legislature did not intend to increase benefits to widows of firemen who had retired prior to the effective date of the amendment. The court stated in the Yerger case, p 344:

“The legislature had indicated that the widow’s rights are derivative by defining ‘firemen’ as including all persons who are entitled to the benefits of the act.”

We are not here confronted with a question of changes in benefits with respect to a fireman who has already retired. We are concerned with the meaning of the statute as to benefits given a fireman “in service” and his dependents.

We think that the argument that the statute requires fulfillment of one of two conditions, to wit: death resulting from disablement incurred in the line of duty, or, death during an established retirement (which would require either the first condition of disablement in the line of duty, or a minimum of ten years’ service) goes too far.

We find the language of the first paragraph of § 4-114 quite plain in establishing two categories, the first being death “while in the fire service,” and the second death “during retirement” (which latter may be either for disability or after 20-years’ service).

As to the first category of death “while in the fire service,” the requirement is that the death must be “as a result of any illness or accident to him which had its inception while he was in such service with pay.” As to the second category, the death might be “from any cause” (that is, whatever and whenever the inception of the illness or accident causing the death).

The legislature was quite familiar with the language necessary to indicate illness or accident resulting from the performance of duty and used the language heretofore quoted, that is, “incurred in and resulting from the performance of any act or acts of duty” when it so intended. Such language is certainly not to be equated with the language “as a result of any illness or accident to him which had its inception while he was in such service with pay,” which is the language found in the first paragraph of § 4-114.

Appellant’s contention would require us to read into § 4-114 a requirement that the fireman either be retired for disability, or be eligible for retirement for disability. This language is simply not in the section. The language of this section has not been changed substantially since prior to the 1947 amendments.

A difficult question is whether the fireman in this case, being on leave of absence without pay, was “in the fire service.” We take it that the phrase “with pay” refers to the time of inception of the illness. We do read the requirement of “active” into the matter of eligibility by reason of the first clause of subparagraph (a) of § 4-114, which is that payment shall be made: “(a) To the widow of any active or retired fireman while unmarried, etc.” It appears to us that the reference “active” or “retired” is an attempt to summarize the categories which we previously outlined as “in the fire service,” and, “during retirement.”

The Firemen’s Pension Fund Act (c 108%, § dr108 (Ill Rev Stats)), defines “creditable service,” and it states that “leaves of absence for illness or accident occurring to a fireman, regardless of the length thereof, etc.,” shall be counted in computing creditable service. While “creditable service” is not necessarily identical with “in the fire service,” or in the active fire service, especially since the definition includes disability retirement where no pension was received, we think that this definition of what may be credited adds legislative recognition to the action of the municipality in granting a leave of absence. The general purpose of a leave of absence is to preserve the status of the employee. Here the leave was granted pursuant to a regular system established by the personnel code of the city, which stated that such leave should not constitute a break in service. We note that the legislative approval of a leave of absence in reference to creditable service is not unlimited, but is carefully confined to leave of “absence for illness or accident occurring to the fireman.” We are of the opinion that during the period of authorized leave of absence of Mr. Callahan, which in this case was definitely due to illness or accident which had its inception while he was in the service with pay, preserved his status in the fire service.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: SMITH, J. CRAVEN, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mary Jane Spears, Defendant-Appellant.
    Gen. No. 10,789.
    Fourth District.
    April 27, 1967.

      CRAVEN, P. J., dissents.
    Ferguson & Ferguson, of Decatur (Paul H. Ferguson, of counsel), for appellant.

      Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Franklin E. Dove, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

Defendant was convicted of perjury and appeals. The setting for the conviction was her testimony in the probation hearing of Donald Spears. Spears had pleaded guilty to a charge of aggravated battery involving one Carl White, who was “monkeying around with his wife.” Defendant, who is now married to Carl White, testified for Spears at such hearing. The facts center around who married whom, why and when. The facts are bizarre and so contradictory as to defy accurate presentation.

It is apparent that both the defendant and Spears did some light and fancy juggling of commonly accepted principles of truth and morals. One count of the indictment charged the defendant with falsely stating at the probation hearing that she was not the wife of Spears, but that he had another. This count was properly dismissed on the theory (apparently) that the defendant spoke the technical truth when she said she was not married to Spears as a result of an abortive marriage with him in Clinton, Illinois — abortive because her then husband, Carl Nave, was living. On the remaining counts, defendant moved for and obtained a bill of particulars requiring the State to specify the materiality of the false statements. In response, the State asserted that the statements were material to the issue of whether the public interest would be subserved by granting him probation. A motion to dismiss these counts for the reason that the alleged false statements were not material to that issue was denied. We might pause here to note, lest silence raise unwarranted implications, that the materiality of a false statement in a perjury indictment is a question of law. People v. Glenn, 294 Ill 333, 128 NE 532. Hence, since a motion for a bill of particulars has to do with the “facts,” the motion was inappropriate and should have been stricken. A jury never passes on the issue of the “materiality” of the alleged false statements.

The court reporter’s transcript of the probation hearing leaves no doubt but that the defendant testified that Spears had a wife; that Spears said he was having trouble with her; that she was going with other men and he had tried to stop her; that the wife visited the defendant with two other women, and that Spears was paying on his wife’s wedding and engagement rings at the jewelers. Defendant testified that she, Mrs. Nave, and Mary Jane Spears were not one and the same person; that Mrs. Spears was having relations with Carl White and that Spears was trying to break it up. In her perjury trial she testified that the Mrs. Spears she referred to was herself. Further contradictions need not be detailed. Her testimony furnishes nothing from which the truth can be established. We cannot separate the wheat from the chaff. On this record it was characteristically the province of the jury to make that determination. By their verdict, they have determined that she did falsely testify that Spears was married to a third person, a fact denied by other witnesses, and also falsely testified that the wife of Spears, a person other than herself, was having relations with Carl White. Her testimony is a hopeless maze of contradictions and the verdict of the jury is amply supported by evidence beyond a reasonable doubt.

Was this testimony, as a matter of law, material to the issue before the court in the probation hearing? We think it was. Spears was seeking probation. Under the statute the issue was whether “the public interest does not require that the defendant [Donald Spears] receive the penalty provided for the offense.” Ill Rev , Stats 1965, c 38, § 117-1(2). An affirmative finding on this issue by the court was a condition precedent to probation. The marital status, the stature, the habits and the conduct of Donald Spears were all matters of proper and necessary inquiry. Whether he was a married man with children was material on the issue. That his wife was having an affair with Carl White lent color to his conduct in the shooting. We thus conclude that the testimony which the jury found to be false was material to the issue before the court.

It is urged that one of the elements of perjury is that the false statement must be one “which he does not believe to be true.” This is the statute. Ill Rev Stats 1965, c 38, § 32-2. Defendant testified that she believed she was telling the truth and that Spears was married either to Evelyn Johnson, or to her half sister, Dorothy Fields, or to her sister, Ruby Peppin. Neither fact was shown in this record. If she believed this, why did she go through a purported marriage with him ? The mere assertion of these statements belie their correctness and there is a sound basis for the jury giving little credence to her statements that she believed she was telling the truth.

The State offered and the Court received evidence of a prior conviction of the defendant for burglary. Such conviction was then pending on appeal and such was brought out. People’s Instruction No. 7 told the jury that such conviction could be considered by them as affecting defendant’s credibility as a witness — a standard instruction in this context. Defendant tendered instruction, which told the jury that they should consider the fact that the conviction was then pending on appeal, was refused. Both the admission and refusal are urged as error.

It is a rule of long standing in Illinois that an accused taking the stand in his own defense, and thus putting his credibility in issue, opens such to possible impeachment. One of the established vehicles for impeachment is proof of a prior conviction of an infamous crime. There are those who view this vehicle askance— indeed, some take the jaundiced view that it is a veritable denial of the presumption of innocence, and it may be that this ancient form of impeachment — more anciently a disqualification — should be restudied in the light of modern trends. However, such restudy is not for us. Our sole problem here is whether a pending appeal precludes its use.

• Our answer is that it does not. We bottom our answer on the very simple proposition that a conviction is a conviction until set aside. In People ex rel. Keenan v. McGuane, 13 Ill2d 520, 150 NE2d 168, certiorari denied 358 US 828, the petitioner argued that his previous conviction of an infamous crime did not operate to cause a vacancy in the office of the Cook County Assessor because an appeal from such conviction was then pending. Our Supreme Court repudiated this argument in this language:

“We find no merit in petitioner’s contention that pendency of his appeal stays the finality of his conviction and thereby holds in abeyance a vacancy in the office of Cook County Assessor.”

While manifestly not on all fours with this case and the problem that we consider, we find some difficulty in distinguishing between a conviction finalized in the trial court that will warrant the creation of a vacancy in a public office and the admissibility of a prior conviction in a criminal case for the purpose of impeachment only of a defendant who testifies in his own behalf. The Appellate Court for the First District, Fourth Division, in People v. Webb, 80 Ill App2d 445, 225 NE2d 679, had occasion to consider the precise proposition that we now consider. They were then dealing with the admissibility of a prior conviction of an infamous crime, and whether or not it was admissible while pending on appeal against the defendant who testified in his own behalf. Relying heavily on Keenan, that Court concluded that such a prior conviction was admissible and in so doing stated:

“We therefore hold that in a criminal case, when the defendant testifies it is proper to introduce the record of his prior conviction, even though an appeal is pending in the case.”

The United States Court of Appeals for the Seventh Circuit reaches a like result. The Federal rule as to the mode of proof is different than ours — it can be effected on cross-examination — but putting that aside, the problem was squarely presented in United States v. Empire Packing Co., 174 F2d 16, 20, certiorari denied 337 US 959. There it was said:

“. . . Unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding said conviction solely for the purpose of testing credibility.”

This holding was recently reexamined and reaffirmed in United States v. Hoffa, 367 F2d 698, 713 (1966). Before leaving this point, we would be remiss if we did not take note of the dissent in Hoffa adding a possible gloss or caveat to the sweep of the majority holding that contrived circumstances concocted by the prosecution may dictate a different answer. See Commonwealth v. McIntyre, 417 Pa 415, 208 A2d 257 (1965). We would be remiss too if we did not take note of People v. Shook, 35 Ill2d 597, 221 NE2d 290, which was not extant at the time this case was tried or at the time it was argued in our court. In Shook, the prior conviction introduced for impeachment purposes had been literally excised, or rather exorcised, by the discharge of Shook on writ of habeas corpus which discharge predated the trial. Thus the situation was entirely different from the one we have, because, as our Supreme Court there said, “[T]he discharge by habeas corpus refers to the actual conviction and declares it to be void.” In Shook at the time the prior conviction was offered, it was a nullity. Here the conviction was a conviction finalized in the trial court at the time it was used. We thus conclude that the trial court committed no error in admitting in evidence the prior conviction then pending on appeal.

The common-law disqualification of a previously convicted defendant to testify in his own behalf was removed by legislative enactment that provided that “such. . . . conviction may be shown for the purpose of affecting his credibility.” Ill Rev Stats 1965, c 38, par 155-1. This is the voice of the Legislature. This is one of the terms upon which the common-law disqualification was removed. In People v. Brown, 69 Ill App2d 212, 215 NE2d 812, the court cites People v. Buford, 396 Ill 158, 71 NE2d 340, with approval. In the case, the previous conviction was fifteen years old and the defendant urged that it was too remote to possibly affect the credibility of the defendant in that case. The Supreme Court repudiated that argument stating that “the statute fixes no limitations as to the time of such previous conviction.” Since the statute didn’t fix any such time limitation, the court refused to do so. Thus our courts have twice refused to legislate and bar conviction in evidence when, arguendo, repentance or atonement might justify it because of the passage of time and the conduct of the defendant since the first conviction. It would thus seem that if a time limitation is to exist, it is a matter for the Legislature and not for the court to impose. The term “conviction” means the finding of guilt by court or jury and an adjudication of that fact. Ill Rev Stats 1965, c 38, § 2-5. That occurred here. There was a finalized judgment of conviction in the trial court. That is what the Legislature requires to make a previous conviction admissible. No more is required. For us to engraft upon that statutory provision the words “provided if such conviction is pending upon appeal, it is not admissible” is for us to legislate where the Legislature has not seen fit to do so. We do not engraft upon the statute the words “final conviction.” If the term “conviction” means anything at all, it means a conviction finalized on the trial court level. Otherwise it is simply not a conviction.

We would further note that a judgment of conviction must be final in the trial court before it is appealable from that court. A notice of appeal recognizes that the conviction in the trial court is a final judgment of that court. A pardon does not preclude the admissibility of a prior conviction. A commutation of sentence does not preclude its admissibility. A suspension of sentence or a stay of mittimus does not preclude its admissibility. See People v. Andrae, 295 Ill 445, 129 NE 178. It is the fact of final conviction in the trial court that makes it admissible when it is offered and nothing thereafter affects it except outright reversal or reversal and remandment. We think the Supreme Court determined the question of finality in Keenan and it is not for us to bypass it. In our judgment, People v. Shook stands only for the proposition that where the conviction is a nullity at the time it is offered, it is not admissible. And, if it is a nullity at that time, it is reversible error to admit it. In the case at bar, the defendant stood convicted when the conviction was offered in evidence. That conviction still stands today.

Of course, defendant’s refused instruction is subject to the vice of singling out evidence. Ordinarily, this is not permitted except when there is a very real possibility that the jury might draw unwarranted inferences from proof offered for a limited purpose. This is the reason that the People’s instruction apropos of the prior conviction is permitted, and is proper even though it likewise carries the vice of singling out evidence. After all, absent this instruction, the fact of conviction would probably be considered as proof of guilt itself and not limited to its specific office. The refusal of defendant’s instruction was proper for the vice noted, and would invite undue speculation on the part of the jury.

The defendant complains of the closing argument of the State’s Attorney; charges a conspiracy between Spears, his attorney and the State’s Attorney to persecute rather than prosecute; complains that the Assistant State’s Attorney did not withdraw from the case after testifying contrary to defendant’s witness White as to conversations in the State’s Attorney’s office; and finally, asserts error in permitting the State to cross-examine her on prior statements alleged to be false or contradictory to her statements at the trial. We have carefully examined all of these complaints and find them without merit. It would extend this opinion beyond proper limits to discuss them in detail.

We therefore conclude that the defendant received a fair trial in the trial court and that judgment of that court should be and it is hereby affirmed.

Affirmed.

TRAPP, J., concurs.

CRAVEN, P. J., dissents.

CRAVEN, P. J.,

dissenting.

My colleagues hold that a prior conviction that is pending on appeal is admissible to impeach the defendant-witness. Concurrently it is suggested that if the prior conviction used for impeachment is ultimately reversed or reversed and remanded on appeal, then the “conviction” would be affected as to use for impeachment. This, to me, invites the use of the prior conviction with the possible consequence of having reversible error in two cases rather than one. The statistics issued by the court administrator indicates that in the year 1965 approximately one-third of the criminal cases on appeal in the Appellate Court in Illinois resulted in judgments of reversal or reversal and remandment.

Another consequence of the majority holding is to isolate the judgment of conviction by the trial court from the appeal process. This is contrary to the theory of a unified court system wherein an appeal is but a continuation of the proceeding. Indeed, this is expressly so provided by Rule 301 of the new Supreme Court Rules as they relate to civil appeals although not specifically provided in the Rules as applicable to criminal appeals.

The ultimate affirmance by the Appellate Court for the Fifth District of the case here used for impeachment does not alter the question presented. We must review the record as it was made in the Circuit Court of Macon County and determine the issues from that record. At the time of the use of the prior conviction, it was pending and unresolved on appeal.

The Hoffa case referred to in the majority opinion and the Empire Packing Co. case by the same Court are contrary to a result reached by the Circuit Court of Appeals for the District of Columbia in Campbell v. United States, 176 F2d 45. The Court there held that the use of a conviction being appealed to impeach a defendant-witness was improper. The Court stated:

“But it seems to us wholly illogical and unfair to permit a defendant to be interrogated about a previous conviction from which an appeal is pending. If the judgment of conviction is later reversed, the defendant has suffered unjustly and irreparably, the prejudice, if any, caused by the disclosure of the former conviction. We therefore hold that the pendency of an appeal prevents the prosecution from proving a previous conviction for impeachment purposes; and that the District Court erred in admitting evidence concerning Campbell’s conviction when his appeal therefrom had not been determined.”

By count, the majority of the State decisions appear to hold as does the majority opinion and as was held by the Appellate Court, First District, in the Webb case. This problem is discussed and the cases thereon are collected in a comment found in 6 De Paul L Rev 257. At the time of that article, no Illinois case had decided the point in issue. The author did speculate on the position that Illinois would ultimately take. He stated:

“In Illinois, though there are no cases in point, there are strong indications that when the question does arise, it will be decided in accordance with the minority viewpoint.
“Illinois is among the strictest states in the matter of the admissibility of evidence of prior convictions to impeach a defendant who takes the stand in Ms own behalf. In addition, Illinois is one of the few states in which a distinction is drawn between a defendant as a witness and a non-party witness. Where this degree of definition is attempted, it is not too highly speculative to allow that the courts will be wary of submitting the rights of a defendant-witness (if not a non-party witness, or the party for whom he appears) to the prejudice which might result from admitting in evidence an appealed conviction.” (Footnotes omitted.)

I recognize that there is a substantial difference between a prior conviction on appeal and a prior conviction that has been determined to be void by subsequent habeas corpus proceedings, as was the case in People v. Shook, 35 Ill2d 597, 221 NE2d 290 (1966). In the Shook case this Court had held that the use of a prior conviction that had previously been set aside by a writ of habeas corpus was error. In view of the record, however, we concluded that the error was not sufficiently prejudicial to warrant a reversal and remandment. The Supreme Court reversed, holding that the admission was prejudicial and reversible.

The United States Supreme Court, in Spencer v. Texas, Bell v. Texas and Reed v. Beto, 385 US 554, 17 L Ed2d 606, recently discussed the admissibility into evidence of prior convictions in connection with recidivist statutes in the State of Texas. The discussion in that case, although bottomed on an admittedly different factual situation, is relevant as it relates to the use of prior convictions.

The minority opinion by the Chief Justice is critical of the use of evidence of prior convictions. In the dissent, it is pointed out that when the jury learns of prior convictions it might punish an accused without regard to his guilt of the crime currently charged. In the course of the opinion he states:

“Of course it flouts human nature to suppose that a jury would not consider a defendant’s previous trouble with the law in deciding whether he has committed the crime currently charged against him.

See also Comment, 70 Yale LJ 763 (1961), where the use of prior convictions to impeach a defendant’s credibility is criticized.

No Illinois Supreme Court decision has specifically determined that a conviction pending on appeal may be used to impeach a defendant-witness. Many cases may be cited as authority that prior convictions not on appeal may be shown for impeachment. In the absence of judicial compulsion, this Court should not expand the use of prior convictions to permit the use of a conviction pending and unresolved on appeal.