author: EBERSPACHER, J.

text:
    Charles Mansur, Plaintiff-Appellant, v. Eugene Luhr Company and Luhr Company, Inc., Defendant-Appellee.
    Gen. No. 66-62.
    Fifth District.
    June 20, 1967.
    Rehearing denied August 9,1967.
    Greensfelder, Hemker, Wiese, Gale & Chappelow, of St. Louis, Missouri (Walker & Williams, of East St. Louis, of counsel), for appellant.

      Kassly, Weihl, Carr & Bone, of East St. Louis (Rex Carr, of counsel), for appellees.
   EBERSPACHER, J.

Plaintiff, a professional Civil Engineer, entered into an oral employment contract with the defendant companies, acting through their President, Eugene Luhr, by which plaintiff was employed to act as chief engineer for both defendants, and to serve as manager of the Well and Dewatering Division of Luhr Brothers, Inc.; the plaintiff commenced work on June 2, 1958. On December 4, 1958, Eugene Luhr was killed in an airplane crash; plaintiff continued his employment with the defendant companies until March 7, 1959, when he accepted employment with another company.

A few days after the death of Eugene Luhr on December 16, 1958, plaintiff had a conversation with Alois Luhr, the successor president of defendants, in which plaintiff outlined the terms of his employment contract as he understood them to be. Plaintiff has alleged, and offered to prove, that the oral agreement provided as compensation for plaintiff’s services a salary of $12,500 per year, plus 25% of the gross profits from all projects assigned to the Well and Dewatering Division; that all expenses were to be paid by defendants; that an automobile was to be furnished, and all expenses paid on the same, by defendants; that at the end of the fiscal year, to wit April 30, the books of defendants were to be audited, and plaintiff’s share of 25% of the gross profits would be credited to his account at that time.

At that conference Mrs. Adelheide Luhr, the widow of Eugene Luhr, and secretary-treasurer of defendants, was also present. According to the testimony of plaintiff, neither of those two officers denied the terms of his employment contract. Mr. Alois Luhr testified that at this conference plaintiff advised him of the terms of the employment contract, and when asked what his cornments were answered, “Well, I said as far as I knew then, I didn’t know anything about it and I would have to check into it. It was — I knew there has been discussion on new work, that he was to get a profit on dewatering work, but I didn’t consider anything that we had done over the past ten years as new work.” In answer to a question as to whether Alois Luhr told plaintiff at that meeting that he was to have no percentage of the Well and Dewatering profits, Alois Luhr answered, “I don’t think I told him in those exact words. I said we would have to regroup. We had no such agreement.” Alois Luhr further testified that later it was his understanding that plaintiff was to receive a commission on new work brought into the Well and Dewatering Division.

On March 7, 1959, the day plaintiff terminated his services with defendants, plaintiff conferred further with Alois Luhr, the succeeding president of the defendant companies, advising him that he had an opportunity of other employment, but wished an understanding with reference to his receiving his share of the profits from the Well and Dewatering Division. Alois Luhr assured him that they “would be fair,” and either agreed or advised him that the costs on jobs in the advance stages of completion were not in so that any profits could be determined.

Plaintiff returned in April at which time he was advised that certain bills pertaining to two projects were not yet in and that they could work out a settlement in June. At that time plaintiff was advised that the “dirt work phase” or “earth work” of a Beardstown job had not been assigned to the Well and Dewatering Division.

Upon plaintiff’s return in June, according to plaintiff’s testimony, Alois Luhr advised “they were not going to compute the profits assigned to Well and Dewatering in detail and offered me $2,500.00 as my share.” This testimony was objected to and moved to be stricken as being in the nature of a compromise and settlement; the court allowed the motion.

This suit, by a complaint in two counts, followed: both counts alleging plaintiff’s understanding among the other terms of his employment contract, that he was to receive in addition to his salary and expenses, 25% of the gross profits of all projects assigned to the Well and Dewatering Division. The first count prayed that defendants account to plaintiff for the 25% of the gross profits of all projects assigned to the Well and Dewatering Division; the second prayed damages in the sum of $25,000. Defendant Luhr Brothers’, Inc. answer admitted the terms of the contract of employment except for the commission on work assigned to the Well and Dewatering Division, which it denied. Defendant Eugene Luhr & Co. denied each of the allegations of an employment contract.

In a bench trial, the court sustained objection made to plaintiff’s testifying as to any conversation concerning the employment contract between plaintiff and Eugene Luhr, as being barred by chapter 51, section 4, Ill Rev Stats, and rejected plaintiff’s offer of proof of the terms of the employment contract. Called under section 60 of the Civil Practice Act, the Secretary-Treasurer of defendant companies had admitted that the terms of plaintiff’s employment included a salary of $12,500 per year, expenses and the furnishing of a car, but denied that there was any agreement concerning any commission on profits of the Well and Dewatering Division; she admitted that there had been discussion between herself and Eugene Luhr after plaintiff was employed to the effect that plaintiff was to receive 25% of the “net profits or work, dewatering work, brought in,” but that this was only a discussion between her husband and herself, and not an agreement with plaintiff. Reviewing all the competent evidence, it can be reasonably said that defendants anticipated plaintiff to receive a 25% commission on some work assigned to the Well and Dewatering Division; whether it was to be on net profits of new work brought in by plaintiff during the time of his employment, or on gross profits of the division as contended by plaintiff appears to be the contention between the parties.

Below, plaintiff contended since Mrs. Luhr, an officer of defendants, had admitted plaintiff’s employment, and a discussion of a profit-sharing arrangement with the president of the companies, that matters pertaining to the terms of the employment agreement were sufficiently opened to allow plaintiff to testify to the terms of the agreement. Here, plaintiff contends that defendants’ denials, by their answers, of the terms of the oral contract of employment and their failure to swear “want of knowledge” as required by section 40 of the Civil Practice Act (c 110, § 40, Ill Rev Stats) where knowledge is lacking, constitute a waiver of the restrictions of the “Dead Man’s Act”; and that the pleadings admit full knowledge by defendants of the terms of employment. These novel arguments are not supported by any authorities and we are unable to follow them to any conclusion that section 4 of The Evidence Act (supra) was waived.

Over objection, plaintiff was allowed to testify to his conversation with Alois Luhr in which he outlined his version of the terms of his agreement. The objection was that such testimony was self serving; the specific objection that it was incompetent under section 4 was not made, although in view of the language of the court’s finding, “the plaintiff being subject to limitations imposed upon him by the Dead Man’s Statute, and being unable to prove the terms of the contract,” it is quite evident that the court did not, in consideration of the case, consider plaintiff’s testimony of his detailing the terms in that conversation, as competent.

Plaintiff here contends that his testimony to the effect that Alois Luhr told him that they were not going to compute the profits assigned to Well and Dewatering in detail and “offered me $2,500.00 as my share” should not have been stricken, by reason of the fact that there was no dispute at that time (June 1959); that an offer in compromise may only be claimed and excluded from evidence where a dispute exists. The record clearly shows that a dispute existed as to the terms of plaintiff’s employment; to treat the offer as an admission, it would be an admission no different than admissions made throughout the record. Defendants consistently admitted plaintiff’s employment, but consistently denied the terms of that employment were as stated by plaintiff.

Plaintiff also contends that the evidence established an estoppel or ratification concerning the employment agreement. An examination of the evidence and exhibits does not, in our opinion, so show. The fact that the figures showing a profit or loss on projects in the Drilling and Dewatering Division, at various periods during plaintiff’s employment, as exhibited by plaintiff’s exhibit #3, were made available to plaintiff, but not showing when the projects were brought into the division, is not evidence of the terms of his employment, or that his percentage was to be applied to the gross profit on each job in the division as he contends.

The plaintiff did not prove on this record, the allegations of his complaint with reference to a commission arrangement on profits of the Well and Dewatering Division without resorting to incompetent evidence. Furthermore, the creditable evidence in this record on the profit and loss situation in the Well and Dewatering Division at the end of the fiscal year in question, was that a loss was suffered, and plaintiff has failed to prove any damages resulting from the alleged breach of contract.

While the court’s judgment order may not have mentioned all the reasons to support its judgment for defendants, we conclude that its result was correct. “Where the decision of the lower court is correct, the reasons acted upon by it are immaterial,” Murphy v. Lindahl, 24 Ill App2d 461, 165 NE2d 340 at 343.

We, therefore, affirm the judgment of the Circuit Court of Madison County.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       “. . . and in every action, suit or proceeding a party to the same who has contracted with an agent of the adverse party — the agent having since died — shall not be a competent witness as to any admission or conversation between himself and such agent, unless such admission or conversation with the said deceased agent was had or made in the presence of a surviving agent or agents of such adverse party, . . .”

       See Hill v. A. J. Canfield Co., 157 F2d 849, at page 850 the CCA 7th Circuit said: “To establish his rate of pay from October 7, 1943, the plaintiff sought to prove a conversation with the defendant’s general manager, Frank Canfield, who as alleged in the complaint had agreed to the change in the plaintiff’s pay. When evidence of this conversation was offered at the trial, the defendant objected that Frank Canfield was deceased and based its objection on section 4, chapter 51, Ill Revised Statutes (1945). . . . The court sustained this objection. Subsequently, over defendant’s objection, in answer to questions propounded by his attorney, plaintiff was permitted to testify to conversations which he claimed he had, after Frank Canfield’s death, with Frank Canfield’s successor-manager, Arthur J. Canfield, in which he related the conversation he claimed he had had with Frank Canfield. Obviously, the plaintiff was incompetent to testify directly regarding the conversation he had had with the deceased manager. The statute of Illinois cited above rendered the plaintiff incompetent to testify to that conversation. Since the statute had closed the plaintiff’s mouth to testify directly as to the conversation, the plaintiff will not be permitted indirectly to bring this incompetent evidence to the jury’s attention by testifying as to conversations he had with Arthur Canfield, long after the transaction with Frank Canfield was had and he was dead, in which he told Arthur Canfield what Frank Canfield had said to him about his wage rate. The statute should be construed to effectuate and not to defeat its purpose. Foster and Eddy v. Hart, 29 Ill App 260.”


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leo Lagardo (Impleaded), Defendant-Appellant.
    Gen. No. 50,023.
    First District, Second Division.
    June 20, 1967.
    Rehearing denied July 17,1967.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, and Thomas C. Siesennop, of Chicago (Michael J. Costello, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Patrick Tuite and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction in a jury trial for the offense of armed robbery. The defendant, Leo Lagardo, was sentenced to a term of not less than 15 nor more than 40 years in the State Penitentiary. After return of the guilty verdict, defendant made motions for a new trial and in arrest of judgment, both of which were denied and from which this appeal is taken.

At approximately 6:00 a. m. on September 22, 1963, the Polish Roman Catholic Union Museum (hereinafter referred to as the Museum) in Chicago was robbed and numerous historical objects taken therefrom (People’s Exhibits 1 thru 25 inclusive). Subsequently, on October 30, 1963, a true bill was returned which jointly indicted Bruno Dispenza, John French, Gene Yocca, and defendant. The defendant was tried separately. The trial commenced on April 13, 1964.

Only one eyewitness to the occurrence was called to testify, Leon Krempec, a night watchman at the Museum. He testified that on the morning in question he was about to go off duty when he was seized and held at gunpoint in an outer hall of the Museum. Although he was only able to see one of the intruders, Krempec stated that four persons participated in the robbery. He based this observation upon the fact that the person holding him at bay had told, him that there were four men present. Krempec testified that he had heard the voices of two other persons in the Museum.

On October 18, 1963, Krempec identified Bruno Dispenza at a police lineup as the same person he saw in the Museum on the morning of the robbery. Dispenza was placed under arrest. Krempec, however, was unable to identify any other person/s at the lineup, as Dispenza was the only person who had actually confronted him during the course of the occurrence. On October 19, 1963, a written confession was taken from Dispenza which named French, the defendant, and a man he knew only as Gino, as his accomplices in the robbery. The confession detailed the procedure employed by the four during the commission of the offense. Dispenza stated in the confession that he was 21 years old and that he had received a one-year education in his native country. He, however, stated in the confession that he could read English but that he had difficulty writing it. Dispenza took about four to five minutes to read the three-page statement and then placed his signature on each page thereof.

The same day the confession was obtained, Police Officers Mason, Walker, and Gushi proceeded to the Cook County Jail where they had learned that defendant was being held on another and unrelated charge. As of this time, defendant was represented only by counsel relative to the charge he was then under indictment and in custody for. No appearance of counsel had, as yet, been filed relative to the instant charge. Upon request, the three officers received the defendant’s oral and written permission to be interviewed. The interview took place in the conference room of the jail. No physical contact is permitted between inmates and visitors, nor are they allowed to hand objects to one another. The interview took place in absence of counsel and lasted approximately 45 minutes.

Officer Walker, called on behalf of the State, testified that at the interview he informed defendant that the three were police officers and that he had been implicated in the robbery of the Museum, together with French and Yocca in a confession made by Bruno Dispenza. Walker stated that he then handed the confession to a jail clerk who presented it to defendant. He testified that after having read the confession, defendant made the remark, “Well — you’ve got the right men, now prove it.” Defendant, thereafter, acknowledged his acquaintance with Dispenza, French and Yocca. Defendant then told Walker that he had called a Chicago newspaper to notify them of the robbery and had attempted to negotiate with them as to the proceeds of such robbery. Walker continued, stating that defendant said that “he would like to make a deal with us, because we did not have all the merchandise that was taken from the Museum.” Asked what items were missing, Walker testified that defendant replied, “You don’t have the gun. You haven’t got the chalice and a small cross.” Thereafter, defendant expressed his desire to meet with the officers the following Monday in Judge Wells’ courtroom, where he would be on trial, to discuss a “deal.”

Walker testified that the following Monday he, Commander Johnson, and Officer Mason sought and obtained defendant’s permission to be interviewed in the jury room of Judge Wells’ courtroom. The policemen again identified themselves and asked defendant what kind of a “deal” he was looking for. Walker stated that defendant said that he wanted to “walk” in exchange for the return of the merchandise missing from the Museum because he was the only one who knew of its location. Defendant, once again, identified the missing pistol taken from the Museum. This interview lasted approximately 15 to 20 minutes.

Commander Johnson, called on behalf of the State, testified as to this same interview. He stated that he handed Dispenza’s confession to defendant who, after paging through it slowly, stated, “Well, your whole case rests with Bruno Dispenza. All we have to do is get him out on bond and we’ll hit him, and your case goes with him.” Asked by Johnson what sort of a “deal” did he wish, defendant stated, “I want to walk free from this robbery charge.” Johnson inquired, “The Museum case?” Defendant replied, “Yes.” Again defendant made the remark, “You’ve got the right guys, now prove it.” This second interview, like the first, was made outside the presence of counsel, however, defendant had not, as yet, been indicted nor obtained counsel relative to the instant offense. Neither defendant nor Dispenza testified at the trial.

Throughout the foregoing testimony of Walker and Johnson, the record is replete with objections by defense counsel that any statements made by defendant to the interviewing officers is inadmissible as hearsay. Furthermore, defense counsel voiced strenuous objection to the introduction into evidence of Dispenza’s confession because it was based upon hearsay and was never adopted by defendant, hence inadmissible against defendant.

Defense counsel also objected to the introduction into evidence of People’s Exhibits 1 thru 25 inclusive (the stolen goods) and the giving of certain instructions to the jury. These objections were overruled.

It is defendant’s theory of the case that numerous errors warranting reversal were committed in the court below; to wit, (1) the admission into evidence of defendant’s self-incriminating response to Dispenza’s confession, in absence of counsel, violated his fifth, sixth, and fourteenth amendment constitutional rights, (2) the admission into evidence of Dispenza’s confession was hearsay, having never been adopted by defendant, (3) the court improperly instructed the jury as to the law applicable, (4) the court erred in admitting exhibits of allegedly stolen goods which were not recited in the indictment, (5) defendant was prejudiced by a reference, made by a state’s witness, to defendant’s indictment for another crime, (6) defendant was prejudiced by remarks of the trial judge made in the presence of the jury, (7) the State failed to prove the necessary elements of the offense charged in the indictment, and (8) defendant was prejudiced by the prosecutor’s remarks during closing argument.

It is the State’s theory of the case: (1) that defendant’s incriminating remarks were admissible, (2) that defendant’s remarks constituted an adoption of Dispenza’s confession thus rendering that statement admissible against him, (3) that the instructions given correctly reflected the applicable law, (4) that all the items taken in the robbery were properly admitted into evidence, (5) that defendant was not prejudiced by the unsolicited testimony of another crime, (6) that defendant cannot complain of the trial judge’s remarks because they were made to rebuke defense counsel’s misconduct, (7) that the evidence is sufficient to support the indictment, and (8) that the closing argument of the State was proper.

Points (1), (2) and (8) of defendant’s theory shall be discussed together because they necessarily relate to one another. Defendant initially relies upon the landmark decisions of Escobedo v. Illinois, 378 US 478 (decided 6/22/64) and Miranda v. Arizona, 384 US 436 (decided 6/13/66). He submits that the subsequent decision of Johnson v. New Jersey, 384 US 719 (decided 6/20/66), which refused to afford retroactive application to the constitutional safeguards promulgated in Escobedo and Miranda, is not binding on state courts. Defendant points out that the Johnson decision was based upon the prospective disruption to the administration of justice in federal proceedings only. It is his contention that such a policy decision is not controlling in state courts who are free to determine their own administrative guidelines.

Defendant, in this conjunction, relies upon the case of People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964), wherein the Illinois court took cognizance of the Escobedo doctrine and did not, thereafter, establish any rule of nonretroactivity. Hartgraves was decided long before the formulation of the nonretroactivity rule in Johnson. At no time in Hartgraves did our court render any express determination relative to retroactive application. To the contrary, the court there simply cited Escobedo and distinguished it on the facts. Moreover, Hartgraves cannot be accepted as authority for a tacit retroactive application of Escobedo and Miranda in Illinois in view of numerous subsequent cases which have expressly held to the contrary. People v. Latimer, 35 Ill2d 178, 220 NE2d 314 (1966), People v. Williams, 36 Ill2d 194, 222 NE2d 321 (1966), People v. Ostrand, 35 Ill2d 520, 221 NE2d 499 (1966), People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). Defendant’s trial having commenced prior to the effective dates of Escobedo and Miranda respectively, he cannot be heard to avail himself of the constitutional guidelines therein established.

Defendant next contends that he has been deprived his constitutional rights as a consequence of the interrogating officers’ attempts to elicit incriminating statements from him outside the presence of his counsel. He further objects to having never been informed of his rights to remain silent and assistance of counsel by such officers.

The principal cases relied upon to support this contention are Spano v. New York, 360 US 315 (1959), Massiah v. United States, 377 US 201 (1964), People v. Halstrom, 34 Ill2d 20, 213 NE2d 498 (1966), and McLeod v. Ohio, 381 US 356 (1965). A detailed analysis of these cases is unnecessary. They concur in the fundamental principle that self-incriminating words, deliberately elicited by state authorities, relative to the offense that the defendant is then under indictment for, when made in the absence of counsel, are inadmissible at the subsequent trial of that defendant for that offense.

Defendant’s contention is not well taken in regard to the aforementioned principle. The reasoning is twofold.

First, defendant was not at the time of the interviews represented by counsel relative to the offense which was the subject matter of the questioning. Second, and of pivotal significance, is the fact that, notwithstanding the deliberate attempts of the officers to elicit the remarks, defendant was at the time neither indicted nor arraigned for the offense to which the questioning related. The fact that defendant was under indictment and pending trial for another and unrelated offense is of no consequence, hence the inapplicability of the Massiah doctrine and the cases supporting it. People v. Lagardo, 82 Ill App2d 130, 226 NE2d 486.

Defendant next challenges, for the first time, the voluntariness of his admissions. This objection was never raised in a pretrial motion to suppress nor called to the attention of the lower court at any time during the trial. Nor has the question of voluntariness been included within defendant’s post-trial motions.

The physical surroundings in the County Jail and courtroom certainly minimize the possibility of any bodily contact or threat thereof. Defendant’s self-incriminating responses are not alleged to have been procured by false promises of compromise. There is no question of prolonged detention or seclusion. Defendant consented to both interviews and actively procured the latter of the two. It was defendant who was the moving party in seeking to consummate a “deal.” Unlike Escobedo, defendant was at no time denied an affirmative request for assistance of counsel. In a situation such as the instant case where Escobedo and Miranda guidelines do not attach, our highest court in People v. Jackson, 35 Ill2d 162, 220 NE2d 229 (1966), has recently said:

. . . the failure to warn an accused that he may remain silent and, in the absence of a request for counsel, a failure to inform an individual of his right to counsel during interrogation by police, do not render statements made to the police involuntary per se. . . .

Here, the attendant circumstances, where defendant has offered no evidence to the contrary save a barren allegation of involuntariness on appeal for the first time, can warrant no other conclusion by this court but that the statements were made voluntarily.

Defendant next vehemently argues that the admission of Dispenza’s confession into evidence against defendant was hearsay and prejudicial, such confession never having been adopted by him. The issue thus presented is, notwithstanding the admissibility of defendant’s remarks as independent admissions of guilt, did the statements operate concurrently as an adoption of the confession of an out of court declarant.

The State contends the controlling cases on the subject of adoption are People v. Hanson, 31 Ill2d 31, 198 NE2d 815 (1964) and People v. Somerville, 71 Ill App2d 381, 219 NE2d 116 (1966). The Hanson and Somerville cases have concurred in the general principle of law that an incriminating extrajudicial statement made by an accomplice, if admitted to be true by the accused, becomes the latter’s by adoption and is admissible in evidence against him at the subsequent trial. Cf. People v. McCasle, 35 Ill2d 552, 221 NE2d 227 (1966), People v. Saisi, 24 Ill2d 274, 181 NE2d 68 (1962). The Hanson court, in considering a charge leveled at the voluntariness of the extrajudicial statement (which parallels a similar allegation made by defendant here), went even further. There the court said:

If the defendant voluntarily adopted the statement as his own, the motives or purposes of . . . (the declarants) . . . for giving the statements are immaterial and irrelevant in defendant’s trial. (Insert supplied.)

Notwithstanding the collateral issues of voluntariness raised by defendant, this court is of the opinion that the factual circumstances by which the alleged adoption was obtained do not, under the law on the subject, warrant the conclusion that defendant made Dispenza’s confession his own.

In each case cited above (Hanson, Somerville, Mc-Casle and Saisi) the adopting language was made by the defendant while in the physical presence of the person/s who was purported to have implicated him in the commission of a criminal offense. In the case at bar, Dispenza’s confession was simply shown to defendant by the interrogating officers, on both occasions outside the presence of Dispenza.

In Hanson, the defendant admitted, in the presence of a court reporter, that 99% of the statement was true. When asked if he was the man who hit the decedent with the pipe, defendant replied, “I did, yes, . . . .” Moreover, the defendant there had initialed each page of his accomplice’s confession and affixed his signature thereto. In Somerville, defendant, Langusch, after having the statement read to him, “said that it was true.” In McCasle, the defendant, upon hearing an accomplice’s admission of the robbery, “admitted that he, too, had participated in the commission of the offense.” In Saisi, the defendant made a general denial of the truth of the contents of a joint statement and called the declarant a liar. Subsequent thereto however, defendant testifying in her own behalf, admitted the truth of portions of the declarant’s statement. The court there said that only those portions admitted should have been allowed into evidence, but the trial having been conducted without a jury, the trial judge was presumed to have only considered competent evidence.

Here, the only words alleged to have operated as an adoption were defendant’s remark, “Well — You’ve got the right men, now prove it.” While the remark could be construed to be a tacit admission of the truth of Dispenza’s confession, the language employed by defendant was not so embracing so as to admit complicity in every respect. Suffice to say, the allegedly adopting language of the instant case is not as strong and unequivocal as that found in the cases relied upon by the State.

The prejudicial effects of allowing an alleged confederate’s confession to go to the jury, where the defendant was tried alone, is further compounded by the fact that the confession was the only link between defendant and the commission of the robbery. The State’s lone eyewitness saw only Dispenza in the Museum. Dispenza, likewise, was the only person whom the witness could identify at the police lineup. No independent testimony was offered which would have placed defendant in proximity to the Museum on the morning in question, nor were any of the fruits of the robbery ever found to be in defendant’s possession.

The general rule which has been repeatedly adhered to by our courts was stated in People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959) where the court said:

. . . the law is well settled that confessions or admissions of a co-defendant, or those of a witness against an accused, are not admissible in evidence against such accused unless made in his presence and assented to by him. . . .
. . . the . . . confession or statement made outside the presence of a defendant is not competent, even for the purpose of impeachment, where such statement or confession bears directly upon a defendant’s guilt or innocence of the crime, and is likely to have a prejudicial influence on the minds of the jury. (Emphasis supplied.)

People v. Childress, 1 Ill2d 431, 115 NE2d 794 (1953), People v. Hundley, 4 Ill2d 244, 122 NE2d 568 (1954), People v. Buckminster, 274 Ill 435, 113 NE 713 (1916). This rule requiring presence and assent was held to apply whether or not the parties involved are jointly tried in People v. Clark, 17 Ill2d 486, 162 NE2d 413 (1959). In Clark, like in the case at bar, the declarant did not testify at the trial. In considering the question the court reasoned:

With his codefendant refusing to testify on the grounds of self-incrimination, plaintiff in error was, . . . left powerless to rebut or inquire into the obvious hearsay testimony. . . .

Cf. People v. Smuk, 12 Ill2d 360, 146 NE2d 32 (1957), People v. Childress, supra.

Defendant was not afforded a fair trial on the charges brought against him. As the court in People v. Buck-minster, supra, said:

The admission of improper testimony that would have a tendency to warp or prejudice the minds of the jury can hardly be considered harmless on this record. ... It would be impossible to decide with certainty as to whether it would or would not unconsciously affect the jury as to their verdict. If from the legal evidence admitted they had any doubt as to the guilt of plaintiff in error, the jury would not find it easy, or perhaps possible, to remove from their minds the impression produced by this confession.

The reasoning employed in Buckminster is squarely applicable to the adverse effects Dispenza’s confession had upon the minds of the jurors in the instant case. Nor can it be argued that the proffered cautionary instruction on the subject cured the defect, as the prejudice, once wrought, cannot be eradicated. People v. Clark, supra. A further discussion of the errors assigned by defendant will not be necessary in view of our disposition of his appeal.

For the above reasons, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and remanded for new trial.

BURKE and BRYANT, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Appellee, v. Eugene R. Yocca, Appellant.
    Gen. No. 50,786.
    First District, Third Division.
    June 22, 1967.
    Franklin D. Loomos, of Chicago (George D. Karcazes, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Eugene Yocca, appeals from a judgment finding him guilty of burglary and sentencing him to the penitentiary for a term of from ten to twenty years. Yocca was indicted with four other defendants for the crime. Two of the defendants, Ernest Pucillo and Bruno Dispenza, pleaded guilty. The other two, John Svizzero and John Johnson, pleaded not guilty. They and Yocca were tried by a jury and convicted. This appeal is by Yocca alone.

The facts of this case are detailed in the case of John Svizzero, who prosecuted a separate appeal (People v. Svizzero, 84 Ill App2d 251, 228 NE2d 604 (1967).

The conviction of Svizzero was reversed because of prejudicial error arising from the improper impeachment of Ernest Pucillo, who, after pleading guilty, testified as a witness for the defense. The same alleged error is the first and principal ground urged by Yocca for the reversal of his conviction.

The five men were arrested in a building where a burglary was in progress. The circumstances of the arrest left little room for doubt that all the men were guilty. However, three of them asserted their innocence by pleading not guilty. Yocca and Johnson testified that they and Svizzero came to Chicago late at night after completing a house-painting job in Ohio. They were driving an automobile which had been loaned to them by Pucillo. Johnson telephoned his wife on the way to Chicago and she told him that Pucillo wanted his auto that night and where Pucillo said he would be. They drove to the address given by Pucillo and were arrested almost immediately after entering the building. They said that they did not know that a burglary was taking place.

Pucillo testified that Yocca, Svizzero and Johnson had not participated in the crime. He said that they came to the building because he needed his auto, that he was acting as the lookout for his accomplices, Bruno Dispenza and two other men, and that he let the three innocent defendants in the door.

The prosecutor was taken aback by what Pucillo said and he attempted to discredit his testimony. He sought to do this by showing not what Pucillo had said upon a prior occasion but by what he had not said. At the time Pucillo pleaded guilty he answered the questions put to him by the court; but he remained silent when the prosecutor, in response to the judge’s request for the facts, stated that Pucillo while in the company of Bruno Dispenza, John Johnson, John Svizzero and Eugene Yocca, entered the premises with intent to commit burglary; that they took certain property and were apprehended on the premises. The prosecutor, over defense objections and motions for a mistrial, was permitted to quote what he himself had said to the court and to show that Pucillo did not dispute the prosecutor’s version of the burglary. He was permitted to ask Pucillo whether he told the judge or the prosecutor that the defendants had nothing to do with the burglary, and whether his attorney had not said, “So stipulated” after the prosecutor related the “facts” to the court.

This attempted impeachment was highly improper. While Pucillo was bound by the stipulation of his attorney, Yocca was not. There was no obligation on Pucillo’s part, during his own plea of guilty, to disagree with what the prosecutor said about someone else. He admitted his own guilt and this was all that was required for the purpose of his plea. There was nothing that he said that accused Yocca and there was nothing that he did that was inconsistent with his testimony. He neither affirmed nor denied Yocca’s guilt and he did not assent to the prosecutor’s statement of the “facts.” What the jury heard was the prosecutor’s own assertion made outside the presence of the defendants on trial that they were guilty of the crime of burglary.

An accusatory statement made outside the presence of a defendant cannot be used against him. Even if Pucillo had explicitly agreed with the prosecutor’s statement, or if he himself had asserted that Yocca perpetrated the burglary, neither his agreement nor assertion would have been competent evidence against Yocca. Not too many years ago it was the law of Illinois that a statement made outside the presence of a defendant was so prejudicial that it could not be used even for the purpose of impeachment. In People v. Barragan, 337 Ill 531, 169 NE 180 (1929), three men committed an armed robbery and three men were indicted for the crime. One of the defendants, who had pleaded guilty, was re- ' turned from the penitentiary and testified that the defendants on trial were not the same men who were with him when the robbery was committed. He was asked if he had not made a contrary statement to the police and excerpts from his previous statement were read to him. The witness denied saying what the statement contained. The trial court overruled defense objections and instructed the jury that the questions put to the witness and the answers made by him were received in evidence only for the purpose of impeachment. The reviewing court in reversing the conviction held that the admission of this statement was highly prejudicial; that although it was offered for the purpose of impeaching the witness, it was hearsay and incompetent and that its sole purpose was to get before the jury evidence of the witness’ unsworn statement that the defendants on trial participated in the crime.

People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959), was also an armed robbery case. Two men committed the crime and two men, Tunstall and James Webb, were indicted for it. Tunstall received a separate trial. Webb testified as a witness for Tunstall. He said that he committed the crime but that Tunstall did not. Webb admitted signing a statement on the day of his arrest which said that Tunstall was with him but said the statement had been coerced. The prosecutor interrogated Webb concerning the questions and answers in the statement and read the full statement to the jury. The reviewing court said that no man can confess to a crime for anyone but himself, and because of this confessions or admissions of a codefendant are not admissible in evidence against an accused unless made in his presence and assented to by him. In answer to the State’s argument that the use of Webb’s statement was proper to impeach him, the court said that fundamental justice would not countenance accomplishment by indirection of that which it will not permit directly. The court quoted from and approved the decision in People v. Barragan, supra, and stated that Webb’s statement could only have resulted in prejudicial influence in the minds of the jurors. Tunstall’s conviction was reversed.

In People v. Tate, 30 Ill2d 400, 197 NE2d 26 (1964), the defendant relied upon the Tunstall decision. Tate and four other persons were indicted for murder. One of the defendants pleaded guilty and was sentenced to the penitentiary. At Tate’s trial he was brought from the penitentiary to testify as a witness for the defense. He testified that he was responsible for the murder and that Tate did not participate in the crime. The prosecutor was permitted to read from a statement made by him after his arrest, not in Tate’s presence, in which he said that Tate had stabbed the deceased. The Supreme Court held that this was prejudicial error and reversed Tate’s conviction. The court observed, however, that impeachment of a witness by a prior contradictory statement is an accepted practice and stated that it would not adhere to the broad statements in the Tunstall opinion. It pointed out that in Tunstall, as in the Tate case, the jury was not adequately instructed about the limited purpose for which the impeaching evidence could be used. The Tate opinion makes it clear that a prior inconsistent statement of a codefendant, made outside the presence of the accused, is admissible to impeach his credibility but that the jury must be instructed that the evidence is for this purpose only and must not be taken as proof of the truth of the matters asserted in the statement.

In the case at bar the error in admitting as impeaching, evidence which was not in fact impeaching, was compounded by the failure of the court to either admonish the jurors at the time the evidence was received or to instruct them later that the evidence was for impeachment purposes only and was not to be considered as proof that the “facts” stated by the prosecutor were the facts of the case.

In the Svizzero case we held that the attempted impeachment and the failure to instruct the jury about the impeachment were reversible errors. Svizzero’s defense and Yocca’s were intertwined. Although the evidence of Yocca’s participation in the burglary was greater than Svizzero’s, and although Yocca’s testimony was subject to suspicion because of his criminal record, he and Svizzero were in the same boat. If the improper impeachment of Pucillo harmed Svizzero, it also harmed Yocca. Belief in Pucillo’s testimony was pivotal to the defense. If he was believed, Yocca would have been acquitted. His credibility, while suspect as an admitted felon, had some evidentiary support which could have lent credence to the balance of his testimony. $1,300 had been stolen in the burglary. Pucillo testified that he had two accomplices who fled the building and were not arrested. Although a thorough search was made of the building and of the men arrested, the $1,300 could not be found. The jury could have concluded that one of the missing men had fled with the money; that if Pucillo thus told the truth about having other men as accomplices he could have been telling the truth about Yocca, Svizzero and Johnson not being his accomplices.

The State’s improper attack on his testimony could have destroyed any possibility of its being believed.

Furthermore, the jurors had before them the prosecutor’s flat statement that it was a fact that Yocca was one of the burglars. Without appropriate instructions they could have regarded this as substantive evidence of the facts in the case and as proof of his guilt. A defendant, guilty or innocent, is entitled to a fair trial. The errors which we have recounted deprived the defendant of such a trial.

There were other errors, and alleged errors, which are not likely to recur upon retrial.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James P. Chipman, Defendant-Appellant.
    Gen. No. 50,995.
    First District, Third Division.
    June 22, 1967.

      Arnold B. Harris, of Chicago (Alan M. Katz, 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.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerome Martin Place, Defendant-Appellant.
    Gen. No. 51,524.
    First District, Third Division.
    June 22, 1967.
    Will Gierach and William R. Dunn, of Oak Lawn, 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 DEMPSEY.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Appellee, v. James W. Kelly, Defendant-Appellant.
    Gen. No. 50,588.
    First District, Fourth Division.
    June 23, 1967.
    James H. DeVries, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Lawrence Genesen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant was tried by the court without a jury, and found guilty of attempted burglary and trespass to a vehicle. The cases had been consolidated and were tried together. The court sentenced him to one to four years in the Illinois State Penitentiary on the attempted burglary charge, and six months in the House of Correction on the criminal trespass charge. The sentences were concurrent. We will first discuss the charge of attempted burglary.

The State’s witness, Michael Cowan, who lived at 6434 North Whipple Street, in Chicago, testified that shortly after midnight on October 19, 1964, he notice two men “milling” on the patio in back of his house; that when he looked out the window again they had disappeared; that he went outside to investigate, and the defendant ran past him in the gangway. Cowan stated that he next saw the defendant in front of his house, looking into the trunk of a car, holding something in his hand; that the defendant and his companion then jumped into the car and sped away quickly. He further testified that immediately afterwards a squad car appeared, driven by Officer Lawrence Schreiner, and that he told the officer he thought the men in the car were burglars, at which time Schreiner started following the car, and Cowan followed the squad car. During the pursuit the car driven by the defendant and his companion was wrecked, and the two men were arrested and taken to the hospital.

The record in this case is both confused and confusing. While the witness, Cowan, testified that he saw the defendant first at the back of his house, and that he next saw him in front of the house, he admitted that in a previous hearing he had said that when he saw the defendant he was standing at the trunk of the car reaching inside and that he, Cowan, remarked to his son that it looked as if somebody had a flat tire and that he would go out and investigate. The testimony is inconsistent.

In response to questioning on redirect examination, at trial, Cowan testified that on the night of the incident he did not notice whether any locks on his house had been tampered with; however, he found later that the locks on his back door had been tampered with; that the door was in the passageway about eight feet from the patio; that he noticed the wood was depressed at the lock, and that there were holes near where the key fit, as if something had been punched in. When asked if that condition of the door had been there before, his reply was, “No, no. I painted the door myself. And I noticed it. I would have noticed it.” He stated that he did not see the defendant tamper with the locks, and he admitted that in the previous hearing before the same judge on October 30, he had made no statement to the court as to any tampering with the lock. His explanation for his failure to so testify was that the question had not been asked. He did not make any statement in the hearing before the grand jury to the effect that his back door had been tampered with.

The State failed to adduce any evidence from any of the witnesses that the defendant, Kelly, had tampered with the locks on Cowan’s house. The only testimony is Cowan’s that subsequently he noticed the locks had been tampered with; that he had painted the door and would have noticed any tampering. However, there is no indication in his testimony as to when the painting was done. There is no proof beyond a reasonable doubt that the defendant was guilty of attempted burglary, and the judgment of the court on that indictment must be reversed.

We will now consider the judgment based on the indictment for trespass to a vehicle. The defendant testified that on the evening of October 18, 1964, he was standing on a corner waiting for a bus, when Anthony Fallen (a man he had known previously) invited him to get into the car he was driving. After he got into the car Fallen told him it belonged to his uncle; later, when the police were pursuing them, Fallen increased his speed to 65 or 70 miles an hour, and when the defendant asked why he was speeding, Fallen said, “The car is hot. It isn’t my uncle’s.” This testimony was corroborated by Fallen.

It appears in the record, from the testimony of Officer Schreiner, that in his interview with the defendant in the hospital he asked if the defendant knew the car was “hot” and the defendant’s answer was “yes.” The State argues that this evidence was properly admitted inasmuch as there was no objection made to it by defendant. Even with that testimony properly in the record, the State has no proof as to the time when the defendant knew the car was stolen. There is nothing in the record which contradicts his evidence that he did not know it until after he was in the car.

The judgment finding the defendant guilty of the crime of criminal trespass to a vehicle is reversed. The judgment finding the defendant guilty of attempted burglary is reversed.

Reversed.

ENGLISH, P. J. and DRUCKER, J., concur.

       Ill Rev Stats 1963, c 38, § 8-4. Attempt.] (a) Elements of the Offense.
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.

       Ill Rev Stats 1963, c 38, § 21-2. Criminal Trespass to Vehicles.]
      Whoever knowingly and without authority enters any vehicle, aircraft or watercraft or any part thereof of another without his consent shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.


text:
    People of the State of Illinois, Appellee, v. Lex Robert Lowe, Appellant.
    Gen. No. 51,439.
    First District, Fourth Division.
    June 23, 1967.
    Steinberg, Polacek & Steinberg, of Chicago (Bradley D. Steinberg, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Downes, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Lex Robert Lowe, was indicted for robbery, tried before a jury which found him guilty, and was sentenced to a term in the penitentiary of not less than three nor more than seven years.

The complaining witness, Helen Pryor, testified that on December 31, 1964, between 9:00 and 9:15 a. m., she was robbed of $7 by a male Negro youth. She stated that as she was descending the stairs leading to the ground level within the apartment building in which she lived, Lowe was coming up the stairs; that as they passed he grabbed her from behind, put his hand over her mouth, placed an object next to her back and said, “Don’t scream, I got a knife.” She stated that he then took the money from her purse, after which he began to fondle her body and told her to kiss him; that he turned her around and tried to kiss her, at which time a door opened somewhere in the building, and Lowe fled. The police were called and Lowe was subsequently arrested and identified by the complaining witness.

The complaint is made in this court that Lowe’s counsel was incompetent; that disbarment proceedings were pending against him, and he was subsequently disbarred. He was the attorney the defendant selected to represent him. During the trial, after the State had concluded its direct examination of the complaining witness the Assistant State’s Attorney, in the presence of the jury, made the following statement: “Mr. Reporter, will you mark these People’s Exhibits No. 1 and 2 for identification respectively.” The documents were marked, and the Assistant State’s Attorney then said:

“For the record, People’s Exhibit No. 1 is a two page typewritten document purporting to be the testimony of this witness before the Cook County Grand Jury, and People’s Exhibit No. 2 for identification is a one page typewritten document purporting to be a police report of this witness’s statement. At this time the State turns over to the Defense People’s Exhibits No. 1 and 2 for identification.”

Defense counsel made no motion to strike the remarks of the Assistant State’s Attorney. The defense counsel did cross-examine the complaining witness about what she told the police and the Grand Jury, and subsequently the State asked the complaining witness whether what she had testified to in court was the same as she had told the police officer, and she said it was. She also said that what she testified to in court was the same she had testified to before the Grand Jury. In his closing argument the Assistant State’s Attorney made the following statement:

“On top of that she has always told a consistent story. She told police officer Ali, she told the Grand Jury the entire story and you saw that we turned over any history that exists of what she told at those moments to the Defense and you have not yet one iota of serious impeachment out of those statements.”

And in rebuttal, the Assistant State’s Attorney said:

“Now, we supplied the officer’s report and the officer testified here today. The Defense called him and the officer said he talked to her on the stairs. She pointed out what had happened, where it had happened, went upstairs, he talked to her in the apartment and then he made out a report and the report that was given to the Defense yesterday was then phoned in.”

No objection was made by defense counsel to this argument.

In People v. Cole, 30 Ill2d 375, 196 NE2d 691, the court held that the defendant cannot be denied access to police reports and statements with reference to the cause on trial, and cited and quoted from People v. Wolff, 19 Ill2d 318, 327,167 NE2d 197, as follows:

“ ‘Accordingly, we adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery is made to the accused.’ . . . The trial court should have made these reports available to defendant. Where it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, a right sense of justice demands that it should be available, unless there are strong reasons otherwise. (People v. Moses, 11 Ill2d 84.)”

In People v. Beard, 67 Ill App2d 83, 214 NE2d 577, it was urged by the defendant that the jury was improperly informed of the existence of prior statements made by witnesses for the State. In that case the court said, at page 88:

“At three points in the trial the defense, out of the presence of the jury, requested the People to deliver over any statements which the State’s witness may have given to the State’s Attorney or to the police prior to the trial. Each time the court told the defense that such a request had to be made in the presence of the jury and overruled defendant’s objections to such procedure. On each occasion the court instigated the request by asking in the presence of the jury if the defendant wanted the statements. The defendant answered that he did, and in each case moved for a mistrial. The motions for mistrial were denied. Thereafter, the State’s Attorney, in the presence of the jury, offered to stipulate to the statements . . .”

The court cited with approval People v. Wolff, 19 Ill2d 318, 167 NE2d 197. In the Beard case the error claimed was that the State’s Attorney had, in the presence of the jury, turned over the statements and offered to stipulate as to their contents. The court discussed this matter and cited and quoted from Chicago City Ry. Co. v. Gregory, 221 Ill 591, 77 NE2d 1112, in which case the court in turn had cited and quoted from Scripps v. Reilly, 38 Mich 10, where it was said:

“Everything having a tendency to prejudice or influence a jury in their deliberations which is not lawfully admissible in evidence on the trial of the cause should be, so far as possible, kept from coming to their knowledge during the trial. An impression once made upon the mind of a juror, no matter how, will have more or less influence upon him when he retires to deliberate upon the verdict to be given, and no matter how honest or conscientious he may be or how carefully he may have been instructed by the court to not permit such incompetent matter to influence him or to have any bearing in the case, it will be difficult, if not impossible, for him to separate the competent from the incompetent, or to show to what extent his impressions or convictions may be attributed to that which properly should not have been permitted to come to his knowledge.”

The court further held that the ruling of the trial court that the request for the statement must be made in the presence of the jury was error; that the defendant did not have a fair trial; and the cause was reversed and remanded.

In the instant case the same rule should be applied. The State argues in this court that had the State failed to produce the documents at all, since a pretrial motion had been made asking for their production, the defendant could then claim error. However, there is nothing in that argument which requires that the State present these documents to the defendant in the presence of the jury. It is a very simple thing for either the State or the defense, when a question of this type comes into being during the course of a trial, to ask for a recess and that the jury be retired; then, that the request and argument, if any, be made in the presence of the court alone.

In the Beard case, bringing the matter before the jury was held to be reversible error. In the case at bar the error is compounded by the State’s Attorney’s closing argument concerning these documents. Certainly it would be rather farfetched to say that when these documents improperly are given (in the presence of the jury) to the defendant to permit him to impeach the State’s witnesses, the State can argue — if the documents are not impeaching — that they should be considered by the jury as corroborating the testimony of the witnesses.

In this court the State argues that the merits of the defendant’s contention cannot be considered error; that the issue was not preserved for review by objection or in the post-trial motions.

The new Code of Criminal Law and Procedure (Ill Rev Stats 1963, effective from January 1, 1964) governs the case before us. Section 121-9 (a) of chapter 38 provides:

“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

In People v. Burson, 11 Ill2d 360, 143 NE2d 239, a case decided in 1957, before the enactment of the Code of Criminal Procedure, the court said at page 370:

“We recognize that counsel for defendant did not present or argue this point; and that the general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. ‘The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.’ 3 Am Jur, sec 248, page 33;

In People v. McKinstray, 30 Ill2d 611, 198 NE2d 829, the court quoted the foregoing with approval.

Under the Code, we have a right to consider the errors since, in our opinion, they deprived the accused of a fair and impartial trial. A careful reading of the instant case indicates that the defendant was deprived of a fair trial, and the case must be reversed.

Many other objections are urged by the defendant. Among them objection is made that the questions put to the witnesses could cause the jury to believe that the defendant had been engaged in other similar offenses in the same neighborhood and that he had been arrested for them. Since the case is being reversed and remanded, these questions will undoubtedly not arise in the second trial.

The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ENGLISH, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Homer Borden, Jr., Defendant-Appellant.
    Gen. No. 50,869.
    First District, First Division.
    June 26, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (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 William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for burglary. He was found guilty in a bench trial and sentenced to the Illinois State

Penitentiary for a period of one to five years. On appeal defendant contends that the proof was insufficient to establish the element of entry into the premises involved.

An ADT alarm was set off when the front window of a men’s clothing store was cracked and the sliding gates protecting the window were bent. Police arriving at the premises apprehended the defendant as he emerged from the basement of the store. His clothes had coal dust on them and his hat was covered with fresh particles of plaster. Upon investigation, a poker with plaster on its tip was found near a filled coal bin.

Someone had been attempting to break through the ceiling of the basement into the store on the first floor.

Defendant’s explanation of his presence at the scene was that he had been drinking and when he stepped into the doorway, fell down the stairs into the basement. He offered no explanation for the coal dust or plaster on his clothes.

The evidence disclosed that no entry into the store was accomplished through the front window. Nothing in the store had been touched. There was no direct entry from the basement to the first floor, and the attempt to break through the floor was also unsuccessful.

The essence of the crime of burglary is the entry into a building with the intent to commit a felony or theft. (Ill Rev Stats 1963, c 38, §19-1.) Defendant argues that the evidence clearly shows that there was no entry into the store as charged in the indictment. “The testimony at most,” asserts defendant, “demonstrates that a person attempted to make entry into the store.” With this statement we are in complete agreement.

Where the offense charged in an indictment includes within it another offense of lower degree, the defendant may be convicted of the lower offense even though the evidence fails as to the offense of higher degree. People v. Lewis, 375 Ill 330, 31 NE2d 795 (1941). The Criminal Code specifically provides that “ ‘Included offense’ means an offense which (b) Consists of an attempt to commit the offense charged or an offense included therein.” (Ill Rev Stats 1963, c 38, § 2-9.)

In accordance with the power vested in this court by section 121-9 (b) (3) of the Criminal Code (Ill Rev Stats 1965, c 38, § 121-9 (b) (3)), we reduce the degree of the offense to “Attempted Burglary,” a crime of which the evidence clearly shows the defendant guilty. The sentence imposed by the Criminal Division of the Circuit Court of Cook County is vacated and the cause remanded for resentencing. People v. Kurtz, 37 Ill2d 103, 224 NE2d 817 (1967).

Judgment modified and cause remanded for resentencing.

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


text:
    Albert A. La Verne, Plaintiff-Appellee, v. Abraham I. Jackman, Defendant-Appellant.
    Gen. No. 50,979.
    First District, First Division.
    June 26, 1967.

      Leonard Schanfield, George S. Lavin and Henry M. Morris, and Rosenthal and Schanfield, of Chicago, for appellant.
    Grossman & Grossman, of Chicago (Henry Mark Holzer, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals from a judgment of the Circuit Court of Cook County sustaining a motion for summary judgment in favor of Albert A. LaVerne, plaintiff, against Abraham I. Jackman, defendant. Plaintiff filed a petition in the Circuit Court of Cook County pursuant to the Illinois Uniform Enforcement of Foreign Judgments Act, (Ill Rev Stats 1963, c 77, §§ 88-105) to enforce a judgment of the New York Supreme Court entered May 19, 1965, in favor of the plaintiff. The judgment of the New York Court was based on an award of the American Arbitration Association in New York City in favor of the plaintiff.

Sometime in 1959, plaintiff, Dr. Albert A. LaVerne of New York City, the defendant, Dr. Abraham I. Jackman and Dr. L. J. Meduna, the latter two residing in Chicago, Illinois, agreed to publish a journal dealing with neuropsychiatry. Their agreement to publish this journal was contained in two letters, each dated April 30, 1959. The first signed by the plaintiff and the defendant, and countersigned by Dr. Meduna, provided that the plaintiff and the defendant would set up a not-for-profit corporation, under the laws of the State of New York; that Dr. Meduna would be editor-in-chief of the periodical to be published by the corporation and that each of them would be a director and share equally in the ownership of the corporation. The second letter signed by plaintiff and countersigned by defendant was addressed to the defendant and stated that the plaintiff and the defendant would contribute services and financial loans to the corporation and each would have one-third control of the corporation. The final sentence of the letter was as follows:

“If there should be any disagreement between us as to any matter under these agreements, or as to any matter relating to the affairs of the publishing company, we agree to arbitrate the matter before the American Arbitration Association in New York City.”

Pursuant to these letters a membership corporation in the State of New York was incorporated by plaintiff’s attorney under the name The Journal of Neuropsychiatry, Inc., and the corporation commenced publishing the “Journal of Neuropsychiatry.” No corporate bylaws were adopted. In the fall of 1962, a tax dispute arose between this corporation and the Internal Revenue Service which requested a copy of the bylaws. Subsequently a standard set of not-for-profit corporation bylaws was prepared by the attorneys for the corporation and submitted to the plaintiff’s attorney. These bylaws conformed with the original intention of the parties as set forth in the letters of April 30,1959.

These bylaws were submitted to plaintiff’s attorney for his comments and examination. No commentary or criticism was received, but instead another set of bylaws had already been proposed and adopted by plaintiff’s attorney and four of his employees, the original incorporators of the corporation. Defendant claims that these bylaws were adopted without consultation with him, Dr. Meduna, or their attorneys and were unacceptable.

In April, 1964, the defendant and Dr. Meduna, desiring to operate the corporation under less stringent auspices of an Illinois general not-for-profit corporation and desiring to operate the Journal in a form which could possibly gain tax-exempt approval from the Internal Revenue Service, called a meeting of the corporation’s board of directors in Chicago, where the offices of the Journal had always been located. Plaintiff received notice of the meeting in writing and by telephone. Plaintiff told defendant and Meduna that he approved of the proposed transfer. He did not appear at the time and place for the meeting on April 27, 1964. He was supplied with copies of corporate minutes approving the transfer of the assets of the corporation subject to its liabilities to “Research in Organic Psychiatry, Inc.,” an Illinois general not-for-profit corporation in which plaintiff, defendant and Dr. Meduna were the sole officers and directors. The new corporation continued to publish' the periodical under the name “International Journal of Neuropsychiatry.” In September, 1964, Dr. Meduna died. Defendant assumed the editorship of the Journal.

In December, 1964, plaintiff, following the proper procedures as outlined in the rules of the American Arbitration Association, sent defendant a demand for arbitration. In the demand the nature of the dispute was stated as being: “Whether said contract was violated by Dr. Abraham I. Jackman in combination with Dr. L. J. Meduna, now deceased.” The relief sought was: “Restitution of the American Journal of Neuropsychiatry, Inc., and its assets including the Journal and all manuscripts to their rightful owners and such other relief as is proper including an appropriate accounting.”

Section 39(6) of the American Arbitration Association rules provides that:

“Each party to an agreement which provides for arbitration under these Rules shall be deemed to have consented that any papers, notices or process necessary or proper for the initiation or continuation of an arbitration under these Rules and for any court action in connection therewith or for the entry of judgment on any award made thereunder may be served upon such party by mail addressed to such party or his attorney at his last known address or by personal service, within or without the state wherein the arbitration is to be held (whether such party be within or without the United States of America), provided that reasonable opportunity to be heard with regard thereto has been granted such party.”

The proper documents were mailed to defendant. The American Arbitration Association sent a notice to defendant that the Demand for Arbitration had been filed with them and a list of arbitrators from which defendant was to select in accordance with the association’s rules. Notice of who had been appointed to arbitrate the dispute was sent to defendant as was a notice of the hearing. On March 4, 1965, the hearing was held before the arbitrators. After the hearing defendant was again notified that the hearing had been held and was given a certain time in which to present any proofs or evidence he desired. Defendant did not appear at the hearing, nor did he send witnesses, nor counsel, nor make any offer of proof or evidence. On March 31, 1965, the arbitrators rendered their decision and a copy was sent to defendant.

Under New York’s Arbitration Law, Civil Practice Law and Rules, section 7501, provides:

“A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforcible without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable or otherwise pass upon the merits of the dispute.”

Thereafter, on May 1, 1965, defendant was personally served in New York with a notice of motion, returnable May 11, 1965, before the New York County Supreme Court, seeking entry of a final judgment on the award. Defendant ignored these proceedings, a hearing was had and a final judgment was entered for plaintiff. Under New York law, defendant had three months to move to vacate the award or to modify it. Defendant took no action.

On June 8, 1965, plaintiff filed a petition in the Circuit Court of Cook County, pursuant to the Illinois Uniform Enforcement of Foreign Judgments Act, (Ill Rev Stats 1968, c 77, §§ 88-105), which had been enacted to implement the Full Faith and Credit Clause of the United States Constitution. Article IV, section 1, of the United States Constitution provides:

“Full Faith and Credit shall be given in each State to public Acts, Records and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Thus far there has been no congressional implementation of this constitutional article affecting “judicial Proceedings” or “the Manner in which such . . . Proceedings shall be proved.” Prior to the enactment of uniform laws for the enforcement of foreign judgments, a new suit had to be commenced in the second state on the extra-state judgment as a new cause of action, and a new judgment was entered. In 1948, the National Conference of Commissioners on Uniform State Laws suggested that a uniform law be adopted for the enforcement of foreign judgments in an expeditious manner. Illinois adopted the Uniform Enforcement of Foreign Judgments Act on August 2,1951.

Defendant filed an answer to the Petition for Registration of the Judgment in which he alleged the New York Supreme Court order was void, setting forth several reasons. First, there was no jurisdiction over the person of defendant, second, the arbitrators’ award went beyond their legal powers. Third, the award affects the affairs and property of a corporation which was not a party to the New York action. Finally the award was procured by the use of “omissions, misrepresentations and half truths.” To support this claim, defendant alleged certain facts relating to the merits of controversy.

Plaintiff filed a motion for summary judgment to which he attached the letter agreements between the parties, including the agreement to arbitrate, the demand for arbitration, the notices sent to defendant by the American Association of Arbitration, the award of the arbitrators and certain documents filed in the action to affirm the arbitrators’ decision in the New York Supreme Court.

Defendant filed no counteraffidavits but answered the motion saying that petitioner has failed to respond to the allegations of lack of jurisdiction of the subject matter and fraud in the procurement of the award. A hearing was had on the motion and an order entered granting plaintiff a summary judgment.

Defendant claims error in the Circuit Court of Cook County on the ground that defendant’s answer raised genuine material issues of fact and that the judgment of the Supreme Court of the State of New York is not such a judgment or decree as may be registered and enforced under the Uniform Enforcement of Foreign Judgments Act.

The judgment of the New York Court required only the defendant to render an accounting of the affairs of the Journal of Neuropsychiatry, Inc., to plaintiff. It required only defendant to return or cause to be returned all property to the corporation which had been transferred away. Defendant was enjoined from publishing a journal under a similar name and representing that the Journal of Neuropsychiatry is defunct. It is because defendant was enjoined from certain acts and ordered to do others that he argues that the judgment may not be registered. Only foreign judgments requiring the payment of a fixed sum of money are entitled to full faith and credit and registerable under the Uniform Act.

To support his position, defendant relies on Fall v. Eastin, 215 US 1 (1909), where the United States Supreme Court affirmed a Nebraska court’s refusal, in a suit to quiet title, to recognize a commissioner’s deed executed in a Washington divorce action. Two justices dissented and Mr. Justice Holmes, specially concurring, stated:

“A personal decree is equally within the jurisdiction of a court having the person within its power, whatever its grounds and whatever it orders the defendant to do. Therefore I think that this decree was entitled to full faith and credit in Nebraska.”

It is apparent from the nature of the Fall case, and subsequent citations to it, that it is limited in its application to real property situations. See Williams v. North Carolina, 317 US 287 (1942); Dibble v. Winter, 247 Ill 243, 93 NE 145 (1910).

Defendant also relies on Tiedemann v. Tiedemann, 172 App Div 819, 158 NYS 851 (1916), where a New York court refused to enforce that part of a Nevada divorce decree requiring the husband to render an account of all community property and give his wife one half thereof. However, the court referred to this relief as “incidental to the main relief (and) in the nature of an execution of the judgment itself.” Subsequent cases have cited Tiedemann with respect to real property. Chesny v. Chesny, 197 Misc 768, 94 NYS2d 674 (Sup Ct 1950); Huber v. Huber, 26 Misc 539, 209 NYS2d 637 (Sup Ct 1960).

However, the instant case is under the Uniform Enforcement of Judgments Act which provides in section 1, (Ill Rev Stats 1961, c 77, § 88):

“ ‘Foreign judgment means any judgmentt’ decree or order . . . entitled to full faith and credit in this State.” (Emphasis added).

The commissioner’s note to section 1, Uniform Enforcement of Foreign Judgments Act, section 1, 9A ULA states:

“No distinction is made between judgments and decrees requiring the payment of money, ordering or restraining the doing of acts or declaring rights or duties of any other character, whether entered in law or equity, in probate, guardianship, receivership or any other type of proceedings.”

In Forrest v. Fey, 218 Ill 165, 75 NE 789 (1905), our Supreme Court stated:

“(A) decree rendered by the chancery court of Arkansas, if it had jurisdiction, has the same effect in every other state as in the state where it was rendered.”

In People v. Potter, 2 Ill App2d 419, 120 NE2d 46 (1954) an Ohio divorce decree awarding custody of a child to the mother was given full faith and credit and enforced against the father.

We see no reason why the New York court order should be denied full faith and credit and enforcement under the Uniform Act.

With regard to defendant’s argument that he raised genuine material issues of fact so as to preclude summary judgment, we find no such factual issues. Defendant’s first pleading raised three issues; jurisdiction of the person of defendant, jurisdiction of the subject matter and fraud in procurement of the judgment. As to the jurisdiction of defendant, the motion for summary judgment clearly showed the notices which had been sent to defendant and that such notices were sent pursuant to the agreed procedure. See Tanbro Fabrics Corp. v. Hymen, 341 Ill App 396, 94 NE2d 93 (1950). Thus, there is no question that defendant had been properly notified and this issue has been abandoned on appeal.

The question of subject matter jurisdiction of the New York court does not present a factual issue but an issue of law. In Roberts v. Sauerman Bros., Inc., 300 Ill App 213, 20 NE2d 849 (1939) plaintiff moved for summary judgment in an action on a Kentucky decree granting a lien on certain machinery. The summary judgment was granted and in affirming on appeal, this court considered defendant’s argument that a question of subject matter had been raised:

“As to the jurisdiction of the Circuit Court of Fulton County, Kentucky, we invite attention to Section 48a, Chapter 51, Ill Rev Stat 1937, which required the Circuit Court of Cook County to take judicial notice of the constitution and law of Kentucky. Under the laws of Kentucky the Circuit Court of Fulton County is a court of general jurisdiction.”

Subject matter jurisdiction is defined as “the power to adjudge concerning the general question involved, and if a complaint states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches.” Wood v. First Nat. Bank of Woodlawn, 383 Ill 515, 50 NE2d 830 (1943). The New York Supreme Court has the power to enter a judgment against defendant upon the award of the arbitrators and its judgment must be given full faith and credit.

Defendant’s allegations of fraud all go to the merits of the litigation in New York. He claims that plaintiff’s testimony omitted certain facts and misrepresented others. “There are two classes of frauds drawn in question in cases of this kind: First, there is that kind of fraud which prevents the court from acquiring jurisdiction or merely gives it colorable jurisdiction; and the second, that kind of fraud which occurred in the proceedings of the court after jurisdiction had been obtained, such as perjury, concealment, and other chicanery.” People v. Sterling, 357 Ill 354, 192 NE 229 (1934). It is this second variety of fraud that defendant has alleged in the instant case. However, only fraud in the procurement of jurisdiction will sustain a collateral attack and preclude enforcement of a foreign judgment. Schwarz v. Schwarz, 27 Ill2d 140, 188 NE2d 673 (1963); Wood v. First Nat. Bank of Woodlawn, supra; Evans v. Woods-worth, 213 Ill 404, 72 NE 1082 (1905).

The order of the New York Supreme Court being entitled to full faith and credit and there being no material issues of fact, the summary judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE MURPHY

text:
    In the Matter of the Application of the County Treasurer for the Payment of General Taxes on the Year 1960 and Subsequent Years. Edward G. Lampiris, et al., Petitioners-Appellants, v. Continental Title Co., an Illinois Corporation, Dennis F. O’Malley, et al., Respondents-Appellees.
    Gen. No. 51,081.
    First District, First Division.
    June 26, 1967.

      Reynolds, Harty & Reynolds, of Chicago (Richard B. Harty and John M. Giltinon, of counsel), for appellants.
    Allan L. Blair and David R. Gray, of Chicago (Allan L. Blair, David R. Gray and Bruce M. Buyer, of counsel), for appellee, Continental Title Co.
    A. E. Peterson and James C. Wickline, of Chicago, for appellees, Dennis F. O’Malley and Mary O’Malley.
    Houtsma & Perel, of Chicago, for appellees, Joseph F. Bigane, Sr., and Edward J. Bigane.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is a tax deed proceeding, in which the trial court struck and dismissed a petition to set aside the tax deed. Petitioners appeal on the theory that their section 72 petition alleged facts which showed fraud in the failure to locate them and serve them with statutory notice of the tax sale and tax deed proceedings prior to the expiration of the redemption period.

On April 16, 1964, respondent, Continental Title Company, filed a petition for a tax deed in the Circuit Court of Cook County, in which it alleged it was the assignee of the purchaser of the subject vacant property at an annual tax sale held on March 9, 1962, and that it had complied with all statutory requirements, and prior to the date of the hearing of the petition it would comply with the notice provisions of sections 263 and 266 of the Revenue Act of 1939 (Ill Rev Stats, c 120, 744, § 263, IT 747, §266).

At the hearing of the “Petition for issuance of tax deed,” respondent, Continental Title Company, offered testimony, supported by an affidavit, that the record owners of the subject property, Andrew G. Lampiris and Edward G. Lampiris, could not be found. The affiant, in the affidavit, stated “that he examined the telephone directories for the City of Chicago and Suburban Cook County and found no listings for Andrew G. Lampiris and Edward G. Lampiris.”

On October 22, 1964, the trial court entered an order directing issuance of a tax deed. The court found that the notices required by sections 263 and 266 of the Revenue Act had been duly served upon all persons and parties entitled thereto, and that “the Petitioner has fully complied with the requirements of the statutes and the Constitution of the State of Illinois relating to sales of real estate for taxes and the issuance of Tax Deeds pursuant thereto and is therefore entitled to a Deed of Conveyance vesting in it the fee simple title in and to the hereinafter described real estate and every part thereof.”

On July 13, 1965, petitioners herein, Edward G. Lampiris and Andrew G. Lampiris, filed their petition to set aside the tax deed issued under the order of October 22, 1964. This petition was withdrawn, and on October 18, 1965, petitioners filed their second petition, in which they alleged that they are the owners of record of the subject premises, “Lot 11 in F. H. Bartlett’s 87th Acres Subdivision . . . ,” having acquired title on February 19, 1957; that prior thereto they had acquired the adjacent property, described as “Lot 12 . . that subsequently, Lot 12 was divided by the County Assessor into “two separate taxable parcels”; that tax bills on Lot 12 had been forwarded to and paid by petitioners from year to year; that, through error, their names were not placed on the assessment roll as to “Lot 11,” and no tax bills on this parcel were forwarded to them for payment, and “petitioners believed that taxes were being paid concurrently on both Lots 11 and 12 as the same accrued; whereas, in fact, payment was not being made on said Lot 11.”

The Lampiris’ petition further alleged that respondent, Continental Title Company, did not make a “diligent inquiry” required by the statute “for the following reasons” :

“12. ...
(a) Petitioner Edward G. Lampiris has been listed in the local suburban phone book at his residence address since 1957 and has resided at said address, 2915 West 102nd Street, Evergreen Park, Illinois, in excess of nine years.
(b) Petitioner Edward G. Lampiris is and was the assessee on the tax rolls of the adjacent parcel (Lot 12 as divided) and his whereabouts could be ascertained from a cursory examination of the tax rolls. That petitioner Edward G. Lampiris had heretofore subdivided said Lot 12 and had recorded the plat of subdivision in the Recorder’s Office of Cook County and his whereabouts could have been easily determined by examination of the requisite papers filed in the Office of the Recorder of Cook County.
“13. That petitioner Edward G. Lampiris has resided in the County of Cook in excess of twenty years and a ‘diligent inquiry’ as required would have located him for the purpose of personal service of the notice required pursuant to the cited provisions of the Rev Act, Sec 744.
“14. That petitioners have been engaged in the cement contracting business and remodeling business in Cook County in excess of twenty years and their whereabouts for personal service of process could have been easily ascertained by a due and ‘diligent inquiry’ by respondent Continental Title Company.”

We agree with petitioners that a motion to strike and dismiss admits the truth of all well pleaded facts in the pleadings of the opposing party, together with all fair inferences to be drawn therefrom. (Dryz v. Bol, 19 Ill App2d 406, 409, 153 NE2d 859 (1958).) However, a motion to dismiss does not admit conclusions or inferences drawn by the pleader, such as conclusions of law or fact unsupported by allegations of specific facts. In alleging fraud, the facts and circumstances should be set out clearly, concisely and with sufficient particularity to apprise the opposing party of what he is called upon to answer. (Aaron v. Dausch, 313 Ill App 524, 533, 40 NE2d 805 (1942).) We have examined this record in the light of these principles.

Petitioners contend that the telephone book search set forth in the affidavit of respondent’s agent either was not made, or “if in fact such search was made that the Continental Title Co. deliberately overlooked the listing of Petitioners. In either of said cases the Affidavit of the Company is false and fraudulent and therefore subject to attack at any time.” Petitioners also assert respondents did not make the “diligent inquiry” required under the statute and cited authorities, “because if such an inquiry had been made the whereabouts of the Petitioner would have been determined without any undue effort — by a cursory examination of the Phone Book, the Assessor’s Tax Roll or by an honest effort to actually determine the place of residence of the Petitioners.” (Shockley v. Good, 13 Ill2d 298, 148 NE2d 763 (1958).) Petitioners argue that, as freehold owners, they are entitled to a hearing on their allegations of negligence, fraud and conspiracy to conceal tax deed proceedings and the alleged failure to make diligent inquiry as to their whereabouts.

Respondent Continental contends that “in the trial court petitioners at no time claimed respondent procured the tax deed through the use of fraud. . . . Their sole claim was related to the degree of diligence used; there is no claim of fraudulent conduct on respondent’s part in procuring the tax deed order. ... It is only after filing briefs in this court that petitioners first contend fraud.”

We agree with respondent that a theory upon which a case is tried in a lower court cannot be changed on review. (Benson v. Isaacs, 22 Ill2d 606, 177 NE2d 209 (1961)), but we are not persuaded that the instant situation calls for the application of that rule. Our primary inquiry here is whether the petition to set aside the tax deed alleged facts from which fraud is the necessary or probable inference. (Nechanicky v. Morton Park Federal Savings & Loan Ass’n, 32 Ill App2d 444, 447, 178 NE2d 197 (1961).) If there is no allegation of facts from which the conclusion of fraud necessarily results, this petition cannot be used “to relitigate any issue already passed on by the trial court” in the tax proceedings. Urban v. Lois, Inc., 29 Ill2d 542, 548, 194 NE2d 294 (1963).

We find nothing in the instant petition from which fraud “is the necessary or probable inference.”

At the most, the petition shows a failure to find one of the petitioner’s names in a suburban telephone directory, and a failure to be aware that petitioners were prominent in the contracting and remodeling business. It is not disputed that “Lot 11” is vacant; that petitioners paid no taxes on it since it was acquired in 1957; and that the recorded deed of conveyance to them did not contain a mailing address.

We believe the recent pronouncements made by our Supreme Court in Zeve v. Levy, 37 Ill2d 404, 226 NE 2d 620, apply here. There it is said:

“It is clear that petitioner’s failure to receive notice of the tax-deed proceedings does not, per se, entitle her to have the tax deed set aside. (Dahlke.)
Nor does the fact that respondent’s agent could have made more thorough inquiry and a more diligent search than he did necessarily establish fraud on the part of respondent in the absence of proof of wrongful intent or a pattern of deception.”

We do not believe the failure to find the name of Edward G. Lampiris in the suburban telephone books establishes “wrongful intent or a pattern of deception,” a necessary element of fraud to entitle petitioners to have the tax deed set aside. Where a section 72 petition fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief sought, it is subject to a motion to dismiss. Brockmeyer v. Duncan, 18 Ill2d 502, 505,165 NE2d 294 (1960).

In view of the foregoing conclusion, we find it unnecessary to discuss or determine the merits of the contentions of the other respondents.

For the reasons given, the order of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    Glenn Maroe, et al., Plaintiffs-Appellees, v. Chemechanical, Incorporated, a Corporation, Defendant-Appellant.
    Gen. No. M-51,224.
    First District, First Division.
    June 26, 1967.

      Bernard M. Mamet, of Chicago (Bernard M. Mamet and Herbert L. Sachs, of counsel), for appellant.
    William Bruce Richards, of Chicago, for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Glenn Maroe and George Zarris, plaintiffs, leased certain premises located in the Village of Riverdale, Illinois, to the defendant, Chemechanical, Inc. The lease was dated October 1, 1960, and was for a period of three years. Only the first seven months’ rent was paid. On February 10, 1965, a judgment by confession was entered against defendant. In April 1965, the judgment was opened. A hearing was held November 1, 1965, at which the judgment was confirmed. A motion to vacate the judgment and find for the defendant was denied and defendant appeals.

Defendant’s only argument is that the lease became null and void when the Village of Riverdale refused to issue to defendant a license to manufacture. This argument is based on the following provision in the lease:

“FIFTH: This lease shall be null and void if the lessee is prevented from carrying on its normal business on the premises by cancellation of its sales and service permit or by any action by any village governing administrative or regulatory official or body or any court of law.”

Plaintiffs argue that the question is one of fact as to whether defendant was prevented from carrying on its normal business. However, defendant “attempted to avoid its legal obligation under this lease by changing its entire operation”; and therefore the above quoted provision of the lease does not apply to the instant situation.

No stenographic record was made at the hearing to confirm the judgment. Pursuant to Illinois Supreme Court Rule 36-1 (3) (c) (present Supreme Court Rule 323(c)) counsel for each party submitted a report of proceedings to the trial judge, and both were signed and filed as accurate.

We have carefully reviewed the two reports of proceedings and the salient facts appear to be as follows:

The defendant investigated the possibility of moving into plaintiffs’ building and agreed to rent the premises but no lease was signed. Application for a license to manufacture was made to the Village of Riverdale and was refused. On October 5, 1960, defendant’s president wrote a letter to be used in petitioning the Riverdale Zoning Board in which he described the nature of Chemechanical’s business as follows:

“Our business is the sale, service and engineering of Polyurethane applications to industry and users of the new product. . . . Our business is to sell this material to local industry. . . . We also plan to handle two other lines; one manufactured in Chattanooga, Tennessee, the other manufactured in Philadelphia — both relative to the nature of the business outlined above.”

The Clerk of the Village of Riverdale testified that upon inquiry to the Chemechanical, Inc., it was learned that the only major piece of equipment was a small electrical oven used for experimenting with new applications.

Pursuant to the letter from the defendant and the village’s inquiry a “Sales and Service” permit was issued. After the issuance of the permit, the lease dated October 1, 1960, and containing the “null and void” provision was executed.

On May 15, 1961, defendant’s president wrote to the President and Board of Trustees of the Village of River-dale, applying for a new license to “manufacture” Polyurethane products. On May 17, 1961, the Village Clerk wrote a letter denying issuance of such license. Defendant moved from the premises informing the lessors that since it could not obtain a license, the lease was null and void.

The provision of the lease must be construed in the light of the circumstances surrounding its execution. Pocius v. Halvorsen, 30 Ill2d 73, 195 NE2d 137 (1964). The record clearly shows that defendant’s officers knew manufacturing was not permitted on the leased premises. The only permit obtainable was for sales and service. It was with this type of operation in mind that defendant had inserted into the lease the “null and void” provision, and only if such operation were prohibited would the lease become null and void. The subsequent refusal of the Village of Riverdale to issue a license to manufacture does not fall within the scope of “normal business” as used in the lease.

For the foregoing reasons the judgment of the Circuit Court of Cook County, First Municipal Division, is affirmed.

Judgment affirmed.

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