author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ELLIS, Defendant-Appellant.
    Second District
    No. 80-617
    Opinion filed June 23, 1982.
    Rehearing denied July 23, 1982.

      Mary Robinson and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, John Ellis, was charged in an amended information filed on November 14, 1979, with three counts of murder, one count of voluntary manslaughter and one count of involuntary manslaughter. After a jury trial, defendant was found guilty of the offense of murder and was subsequently sentenced to 25 years imprisonment. Defendant now appeals and raises the following issues for our review: (1) whether the murder conviction ought to be reversed since the weight of evidence presented at trial established that defendant was acting in self-defense; (2) whether the trial court’s refusal to instruct the jury regarding the defense of dwelling was reversible error; (3) whether the giving of an instruction requiring defendant to exhaust every reasonable means of escape before employing force in defense of self constituted reversible error; and (4) whether the admission into evidence of an oral statement by defendant which was not disclosed to the defense was reversible error. The evidence adduced at trial was as follows.

Joyce L. Current, who lived in the apartment downstairs from the defendant, testified that at approximately 2 a.m. on August 10, 1979, she heard arguing and later two loud noises coming from the upstairs apartment; approximately three to five minutes elapsed from the sound of the first noise to the sound of the second noise; and between the two noises she could hear someone saying “I mean it.” Current also stated that defendant had previously introduced the decedent, Joseph Miller, to her and she estimated that Miller was over 6 feet tall and weighed 195 to 200 pounds. Current later testified that between the sound of the two loud noises she heard a “scuffle” or a “moving about.”

Raymond Wilson Current II, Joyce’s husband, next testified that on August 10, 1979, he was awakened by the sound of his doorbell ringing; defendant was at the door; defendant told Current that a man upstairs had been shot and further said “Help me, maybe we can save his life.” Mr. Current told defendant that he would take care of it, shut the door, and called the McHenry County Sheriff.

Gary Mlekush of the Island Lake Police Department testified that after receiving a radio call, he proceeded to the scene of the occurrence. When he arrived, defendant called to the officer, “He’s upstairs, I didn’t mean to shoot him.” Mlekush then proceeded to defendant’s apartment where he observed a man lying on the floor with what appeared to be a gunshot wound to the head. Mlekush also observed a snub-nosed revolver lying on the kitchen counter. Defendant told Mlekush that the man had lunged at him, and defendant shot him.

Deputy Sheriff Thomas E. Sanders next testified that after arriving on the scene, defendant approached him and stated, “I shot him, please get help, I didn’t mean to hurt him.” Defendant later told Sanders that 3 or 4 days earlier Joseph Miller had been hitchhiking along Route 12 and defendant had picked him up. Since Miller had no place to stay, defendant told Miller he could stay with him. Defendant stated that he wanted Miller to leave the apartment on that night but he refused so defendant went into the bathroom and obtained a revolver. An argument ensued, and when Miller still refused to leave, defendant fired a shot into the wall. Miller stated that guns did not scare him, made a lunge at defendant, and defendant shot Miller in the head. Sanders later testified as follows in response to the prosecutor’s question “Now, what else did you do that evening, if anything?”:

“Well, while we were waiting for the rescue squad to arrive, another deputy from the Sheriff’s Office, Deputy McKeating arrived at that time and I asked Deputy McKeating if he could watch Mr. Ellis and so he stood there and watched Mr. Ellis and then Mr. Ellis looked at Deputy McKeating and he says,
‘I know what you are thinking but it is not that way, I’m not queer — .’ ”

Counsel for defendant then objected to this testimony and moved for a mistrial which the court denied.

Deputy George Weber was also present at the scene and testified that defendant told him during the ride to the sheriff’s office that defendant had asked his friend to move out of his apartment, an argument ensued, defendant went to the bathroom, obtained a gun, and fired a shot into the wall. The victim then lunged at defendant, and while they were wrestling, the gun went off. Defendant also stated to Weber, “I should have let him beat me up, I have been beaten up before. I should have just let him there. I didn’t want to shoot him.”

Deputy Sheriff George Hendle next testified to the content of his interview with defendant which occurred later in the morning on August 10 at the McHenry County jail. At that time defendant related that he had picked up Joseph Miller who was hitchhiking along Route 12. Miller had no place to stay so defendant told him he could stay at his apartment. Defendant stated that he was going to use Miller to help him in his construction work. Defendant and Miller had been drinking during the day at various locations prior to the shooting. When they arrived back at defendant’s apartment, defendant told Miller to get out, but Miller refused. Defendant then fired a shot into a room divider in order to scare Miller. Miller stated he was not scared of any gun and started charging at defendant. Miller’s eyes were rolling back in his head and defendant could see only the whites of Miller’s eyes. Defendant then shot Miller. Defendant told Hendle that he didn’t mean to hurt Miller. Defendant also related to Hendle that the right side of his face hurt but he did not know whether or not Miller had hit him. Defendant’s face was then examined by Dr. Paul who recommended that defendant be taken to the hospital for examination.

Yuksal Konacki, an assistant medical examiner at the Cook County Medical Examiners Office, testified that he had performed an autopsy on the body of Joseph Miller on November 13, 1979. Konacki discovered a scar on the right side of the forehead extending diagonally from the eyebrow toward the right temple. An internal examination of the decedent revealed a hole in the skull and a laceration of the brain extending from the front to the rear. When asked if he was familiar with the term “tatooing,” Konacki responded that “when someone is shot within relatively close distance there appears tiny black specklings around the entrance wound and this is due to the residue of powder particles implanted in the skin.” He did not observe any evidence of tatooing near the wound on Joseph Miller. On cross-examination, Konacki stated that he was not asked to examine the wound for evidence of tatooing and that previous surgery performed on Miller could have removed any tatooing that existed.

Dr. Louis Pupillo, a physician licensed to practice in neurosurgery, testified that on August 10, 1979, he examined Joseph Miller in the emergency room at Victory Memorial Hospital and observed that Miller had an incision at the right frontal region three to four centimeters above the right eyebrow. A neurological examination revealed that MiDer had an injury to the right frontal lobe of the brain. Miller was taken to the operating room where Pupillo cleaned the wound and removed “some cutaneous material.” Pupillo specifically looked for tatooing but did not observe any around Miller’s wound. Pupillo performed surgery on Miller on August 10 and again on September 6. Pupillo described the path of the bullet in Miller’s brain as follows:

“The bullet entered the right frontal region, approximately three to four centimeters above the eyebrow, right here and the path had transversed to the left side and had crossed over to the left side and went from front to back, in a slightly downward projectory.”

David Brundage, a firearms examiner for the Illinois Department of Law Enforcement, performed tests using the gun found at the scene and laboratory ammunition in order to determine at what distance the gun would fail to leave marks or powder residue. Brundage fired the gun into sterile cotton material from distances of three feet and four feet. Regarding the test from a distance of three feet, Brundage testified that there was evidence of a powder residue on the cotton material. The test from a distance of four feet resulted in very few particles adhering to the material. In Brundage’s opinion based on the tests, the gun would fail to leave a powder residue at a distance of greater than three to four feet. Brundage also testified that the type of ammunition used would also affect the result. Other factors that could affect the results of this type of test include the age of the ammunition, the type of powder in the bullet, the manufacturer of the bullet, and whether the bullet was hand loaded or factory loaded. When asked whether it was possible that the powder residue on one of the pieces of cotton material may not have caused tatooing on human skin, Brundage responded, “It’s possible that it couldn’t have and it is possible that it could have.” Brundage further testified that it is possible if a gun is fired close enough to human skin that no tatooing will result since the powder would enter the wound and would not be visible to the naked eye.

Detective Chris Pandre of the McHenry County sheriff’s police next testified that he saw the defendant at approximately 3 a.m. on August 10, 1979, at the McHenry County Jail. Pandre conducted a gun residue test on filings taken from the hand of the defendant. The test was never sent to the FBI because it had been previously determined that defendant had shot the gun and defendant’s hand was contaminated with dry blood.

Defendant then testified that he first met Joseph Miller as Miller was hitchhiking on Route 12 near Lake Zurich. Miller told defendant that he had no place to stay so defendant said he could stay with him and help on a roofing job. Miller resided at defendant’s apartment for about five days. Defendant and Miller had been at the beach on August 9, and, at that time, Miller made some “nasty remarks” about some young girls. Defendant did not like this. Defendant then told Miller that he would have to find somewhere else to stay. Subsequently, the two proceeded to a bar and began to drink. Defendant again told Miller that he wished Miller would find another place to stay. At approximately 12:30 or 1 a.m. they proceeded back to defendant’s apartment. Again defendant asked Miller to leave. Defendant testified that he was wearing an artificial leg at the time. Miller appeared to weigh about 200 pounds and was an inch taller than defendant. In response to defendant’s request for him to leave, Miller stated, “No one-legged mother-fucker is going to tell me to get out.” Miller also said that he could throw defendant out if he wanted to. Miller began throwing up his arms, and his eyeballs were rolling back in his head. Defendant became scared. Defendant then proceeded into the bathroom and obtained a .38-caliber revolver. Defendant came out of the bathroom and stated, “Look here, when are you going to get the hell out of here?” Defendant pointed the gun in a downward position toward the room divider and fired a shot “to let him know it was loaded * * Miller approached defendant and stated, “Guns don’t scare me.” Miller then moved away from defendant towards the door. Miller then “spun around and lunged at [defendant], waving his arms and was going for the gun.” The two were “spinning around” in the kitchen and “the gun was up in the air.” The next thing that defendant remembered was that he “came off” a wall in the kitchen and noticed Miller lying on the floor with the gun lying on Miller’s stomach. Defendant did not hear the gun go off and could not believe Miller was shot. Defendant then reached down, picked up the gun and placed it on the kitchen sink. Defendant immediately went downstairs to the Currents’ apartment because he did not have a telephone. Defendant told Mr. Current to call the police. Defendant testified that he never intended to kill Joseph Miller, did not at any time aim the gun directly at Joseph Miller, and did not fire a shot at Joseph Miller. Defendant further testified that he cannot walk backwards or run because of his leg amputation.

The State presented no evidence in rebuttal. The court then read the following stipulation:

“Number One, that a human being named Joseph Miller lived;
Number Two, that said Joseph Miller was shot on August 10, 1979;
Three, that Doctor Louis Pupillo, M.D. performed surgery on said Joseph Miller on August 10,1979, August 13,1979, September 6, 1979, September 17,1979, and October 17,1979;
Four, that said Joseph Miller died on November 11, 1979;
Five, that Yaks el Konakci, M.D. performed a post morten [sic] examination on the body of said Joseph Miller on November 13, 1979.”

Defendant first contends that the evidence presented at trial established that he was acting in self-defense, and, therefore, the conviction should be reversed. The justifiable use of force in defense of self is an affirmative defense which must be raised by the pleadings or evidence, and once raised the State has the burden of proving beyond a reasonable doubt that the use of force was not justified. (People v. Williams (1974), 57 Ill. 2d 239, 242, 311 N.E.2d 681; People v. Connelly (1978), 57 Ill. App. 3d 955, 956-57, 373 N.E.2d 823.) In the present case, defendant asserts that the State failed to prove beyond a reasonable doubt that his use of force was not justified. The issue of self-defense is a question of fact to be decided by the jury, and its decision should not be overturned unless the evidence is so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. (People v. Lewis (1981), 88 Ill. 2d 129, 151, 430 N.E.2d 1346; People v. Rowe (1977), 45 Ill. App. 3d 1040, 1045, 360 N.E.2d 436.) While a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses (People v. Mills (1968), 40 Ill. 2d 4, 19, 237 N.E.2d 697), where the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury. People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126.

The testimony of defendant and that of various police officers who testified to statements made by the defendant establishes that the defendant and the decedent argued and that the decedent lunged at the defendant. Defendant’s testimony at trial on this point was consistent with his statements given to police officers after the shooting. Joyce Current corroborated defendant’s testimony that a struggle occurred by stating that she heard a “scuffle” or a “moving about.” The State’s attempt to show that the gun was fired at a distance rather than at close range in order to dispute the defendant’s self-defense theory is unconvincing. Although no evidence of “tatooing” was found around the decedent’s wound, David Brundage testified that this could result if the gun was fired at such a close range that all the powder residue would enter the wound itself and would not be visible to the naked eye. Brundage’s laboratory tests to determine at what range the defendant’s gun would not leave tatooing were also inconclusive. Brundage admittedly used newer ammunition than that found in the defendant’s gun and testified that the age of the ammunition could have an effect on the test results. Brundage only conducted two tests — one from a distance of three feet and one from a distance of four feet. When asked if it was possible that the powder residue on one of the cotton pieces may not have caused tatooing on human skin, Brundage stated, “It’s possible that it couldn’t have and it is possible that it could have.”

From our careful review of the record we conclude there was insufficient evidence to prove the requisite intent in order to find the defendant guilty of murder. The defendant’s version of the circumstances of the shooting was not improbable, nor was it impeached by the State’s evidence. The absence of evidence of “tatooing” around the decedent’s wound which might circumstantially infer evidence of an intentional killing from a distance, contrary to defendant’s statements, was not conclusive to establish proof of murder beyond a reasonable doubt. The record is devoid of any other evidence to support a murder verdict. However, we are convinced that the evidence establishes that the defendant is guilty of voluntary manslaughter, and when appropriate, we may reduce the degree of the offense for which defendant was convicted from murder to voluntary manslaughter. (People v. Hudson (1979), 71 Ill. App. 3d 504, 390 N.E.2d 5; People v. Goolsby (1977), 45 Ill. App. 3d 441, 359 N.E.2d 871; People v. Brown (1974), 19 Ill. App. 3d 757, 312 N.E.2d 789; People v. Cooke (1968), 93 Ill. App. 2d 376, 236 N.E.2d 97.) Voluntary manslaughter is a lesser included offense of the charge of murder. (People v. Pierce (1972), 52 Ill. 2d 7, 11, 284 N.E.2d 279; People v. Lewis (1977), 51 Ill. App. 3d 109, 117, 366 N.E.2d 446.) It is a legal compromise between murder and exoneration. People v. Monigan (1981), 97 Ill. App. 3d 885, 889, 423 N.E.2d 546.

Since the evidence presented by both the State and the defendant established that the decedent made a “lunge” at defendant, defendant was entitled to use of some force to repel the attack. One is entitled to the use of force against another when and to the extent he reasonably believes that such conduct is necessary to defend himself against the other’s imminent use of unlawful force. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1.) However, force which is likely to cause death or great bodily harm is justified only upon a reasonable belief that it is necessary to prevent imminent death or great bodily harm. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1; People v. Perry (1980), 91 Ill. App. 3d 988, 993, 415 N.E.2d 523.) The difference between a justified killing under self-defense and one not justified, amounting to voluntary manslaughter, is that in the former instance the belief that the use of force is necessary is reasonable under the circumstances, and in the latter, the belief is unreasonable. (People v. Joyner (1972), 50 Ill. 2d 302, 306-07, 278 N.E.2d 756; People v. Pickett (1976), 35 Ill. App. 3d 909, 913, 342 N.E.2d 766.) After review of this record, we have concluded that defendant’s belief that he was in danger of losing his life or suffering great bodily harm was unreasonable.

There is no indication in this record that defendant had any particular reason to believe the decedent possessed a weapon which could cause defendant great bodily harm or death, or to warrant the reasonable belief that decedent would kill him or cause him great bodily harm. The difference in physical size and the defendant’s disability do not warrant the use of such deadly force under the circumstances here. Defendant had allowed him to reside in his apartment for a period of five days prior to the shooting and had planned to use him to help on a roofing job. Although the decedent refused defendant’s request for him to leave the apartment and indicated his intent to so remain, there is no indication that the decedent in any way threatened the life of the defendant or threatened great bodily harm. The lunge made by the decedent toward the defendant who was holding a gun under the circumstances did not justify defendant’s use of deadly force. “A belief that the decedent, unarmed, might kill or greatly injure the defendant, while [he] had a loaded gun, was unreasonable.” (People v. Davis (1975), 33 Ill. App. 3d 105, 110, 337 N.E.2d 256.) In fact, the defendant himself initiated the use of deadly force when he obtained the gun and subsequently fired a warning shot without any indication of violence on the part of the decedent. Accordingly, under the facts before us we find that the defendant could only properly be convicted of voluntary manslaughter. Section 9 — 2(b) of the Criminal Code of 1961 provides:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b).)

Although the defendant was charged with voluntary manslaughter, and those verdict forms were returned unsigned by the jury upon the jury’s verdict finding defendant guilty of murder, we find that on the record before us, the jury could reach but one proper conclusion. Thus, we exercise the power given this court under Supreme Court Rule 615(b)(3) (73 Ill. 2d R. 615(b)(3)) and reduce the degree of the offense for which defendant was convicted from murder to voluntary manslaughter. See People v. Hudson (1979), 71 Ill. App. 3d 504, 511, 390 N.E.2d 5; People v. Falkner (1978), 61 Ill. App. 3d 84, 92, 377 N.E.2d 824.

Defendant next contends that the trial court erred in refusing to give Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.07 (2d ed. 1981) (hereinafter cited as IPI Criminal) relating to the defense of dwelling. (See Ill. Rev. Stat. 1979, ch. 38, par. 7 — 2.) Defendant’s Instruction No. 4, taken from IPI Criminal No. 24 — 25.07, read:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to terminate unlawful attack upon a dwelling.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if (1) the entry is made or attempted in a violent, riotous or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon himself or another then in the dwelling; or
(2) he reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.”

To raise the issue of defense of dwelling, the defendant must present some evidence thereon, unless the State’s evidence raises the issue. (People v. Williams (1981), 96 Ill. App. 3d 8, 17, 420 N.E.2d 710.) In order to justify the use of force in defense of dwelling, the entry into the dwelling must be unlawful or there must be an attack upon a dwelling. (People v. Chapman (1977), 49 Ill. App. 3d 553, 556, 364 N.E.2d 577; People v. Brown (1974), 19 Ill. App. 3d 757, 763, 312 N.E.2d 789; People v. Garmon (1974), 19 Ill. App. 3d 192, 195, 311 N.E.2d 299.) Defendant cites People v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640, as authority for the proposition that a defense of dwelling instruction should be given even if the entry was lawful and the rightful occupant has used force to attempt to evict one who has refused to leave. The case does not stand for such a proposition. In Stombaugh the supreme court merely held that the defense of dwelling is not restricted to preventing an attempted entry but also extends to terminating an unlawful entry which has been accomplished. (52 Ill. 2d 130, 135, 284 N.E.2d 640.) The victim in Stombaugh had broken into the dwelling illegally and, once inside, was shot by the defendant. Thus, the case does not stand for the proposition which defendant advances. Other cases cited by the defendant, People v. Ulatowski (1977), 54 Ill. App. 3d 893, 368 N.E.2d 174, and People v. Spencer (1971), 131 Ill. App. 2d 551, 268 N.E.2d 192, are inapposite as they are relevant to the separate and distinct offense of criminal trespass to land rather than the issue of justifiable use of force. (See Ill. Rev. Stat. 1979, ch. 38, par. 21 — 3.) The uncontroverted evidence in the case at bar establishes that the decedent’s entry into defendant’s apartment on August 10,1979, was lawful. Defendant testified that the decedent accompanied him back to his apartment on the night in question so that decedent could collect his belongings. Thus, since decedent’s entry was lawful, the defense of defense of dwelling was unavailable and the instruction was properly refused.

Defendant further contends that the trial court erroneously gave People’s Instruction No. 25 taken from IPI Criminal No. 24 — 25.09 pertaining to the use of force in defense of self by one who is the initial aggressor. (See Ill. Rev. Stat. 1979, ch. 38, par. 7 — 4(c).) People’s Instruction No. 25 provided:

“A person who initially provokes the use of force against himself, is justified in the use of force only if the force used against him is so great that he reasonably believes he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause death or great bodily harm to the other person.”

The giving of an instruction requiring the defendant to retreat before using force was held to constitute reversible error and was not corrected by the court’s additional giving of another instruction correctly stating the law of self-defense in People v. Bailey (1973), 15 Ill. App. 3d 558, 304 N.E.2d 668. This case is, however, inapposite. In Bailey the jury instruction was modified to substitute the words, “ ‘[a] person is justified in the use of force only if * * *,’ ” for the words, “ ‘The person who initially provokes the use of force against himself * * *. ” (15 Ill. App. 3d 558, 561, 304 N.E.2d 668.) The effect of the modified instruction was to require the defendant to exhaust all reasonable means of escape before she used force. Such was a misstatement of the law.

The instruction in the instant case had no such effect. The instruction correctly stated the law that an initial aggressor must retreat before he regains the privilege to use force. Thus, only if the jury found defendant to have been the initial aggressor would defendant have been required to retreat. There was at least some evidence presented at trial from which the jury might have concluded that defendant was the aggressor. Defendant obtained the revolver from the bathroom and shot into the wall to frighten the decedent. Joyce Current testified that she could hear someone saying, “I mean it.” The jury might have concluded under these circumstances that the defendant’s actions provoked the decedent’s use of force. When there is a question as to whether the defendant or the victim was the initial aggressor, the giving of such an instruction is proper. (People v. Crue (1977), 47 Ill. App. 3d 771, 773, 362 N.E.2d 430; People v. McBride (1970), 130 Ill. App. 2d 201, 209-10, 264 N.E.2d 446.) The giving of such an instruction does not erroneously assume that the defendant was the initial aggressor and where, as here, it is given with an additional instruction concerning when a person is justified in the use of force to defend himself, the jury is able to resolve the issues on either hypothesis. (People v. Day (1972), 2 Ill. App. 3d 811, 813, 277 N.E.2d 745.) Even though decedent’s lawful right to remain within the apartment had been terminated by the defendant, when there is some evidence that defendant initially provoked the use of force against him, submission of this instruction is proper. Thus, we find no error in this regard.

Defendant’s final contention on appeal is that the admission into evidence of the testimony of Deputy Sheriff Thomas Stamper that defendant had stated to him,” I know what you are thinking but it is not that way, I’m not queer” constituted reversible error.

The prosecution failed to disclose this statement of the defendant in violation of Supreme Court Rule 412 which provides in relevant part:

“(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:

* * *

(ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” (73 Ill. 2d R. 412(a)(ii).)

The defense is entitled to be furnished with all statements made by the accused, even if the statements cannot be appropriately classified as admissions or confessions, and failure to make such disclosure will in certain circumstances warrant a new trial while in other circumstances it will be deemed harmless error. People v. Romo (1980), 85 Ill. App. 3d 886, 896-97, 407 N.E.2d 661.

Defendant cites People v. Weaver (1980), 90 Ill. App. 3d 299, 412 N.E.2d 1353, appeal allowed (1981), 83 Ill. 2d 574, in which this court held that the State’s failure to disclose to the defense an admission by the defendant to an “affair” constituted reversible error. The present case is, however, clearly distinguishable. In Weaver, this court stated that such an admission supplied the jury with defendant’s possible motive for the murder. No such motive can be gleaned from the defendant’s statement in the present case.

The rule requiring the State to disclose statements made by the defendant was adopted to prevent surprise and prejudice to the defendant. (People v. Stewart (1980), 84 Ill. App. 3d 855, 860, 406 N.E.2d 53.) Defendant asserts that he suffered prejudice in that the issue of homosexuality was injected into the case. Although the statement was clearly irrelevant, it should be noted that such a statement was not solicited by the question of the prosecutor who merely inquired of Officer Sanders, “Now, what else did you do that evening, if anything?” Defendant’s statement denying a homosexual relationship does not relate to the issue of defendant’s guilt or innocence and does not implicate the defendant in any manner. Thus we do not find that defendant was prejudiced by the failure to disclose it. The defendant must demonstrate that he was prejudiced by the State’s failure to disclose, and the claim of prejudice cannot be founded on mere conjecture. (People v. Burgin (1979), 74 Ill. App. 3d 58, 72, 392 N.E.2d 251; People v. Hambrick (1979), 68 Ill. App. 3d 447, 451-52, 386 N.E.2d 455.) Although the testimony should have been stricken as irrelevant and the jury should have been instructed to disregard it, we regard its admission as harmless error. See People v. Romo (1980), 85 Ill. App. 3d 886, 896-97, 407 N.E.2d 661.

For the reasons stated, we modify the defendant’s conviction on the charge of murder and reduce it to a judgment of conviction on the charge of voluntary manslaughter as set forth in section 9 — 2(b) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)). The sentence imposed is vacated and the cause is remanded for the resentencing of defendant on the offense of voluntary manslaughter.

Affirmed as modified, sentence vacated and remanded.

VANDEUSEN and HOPF, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN ACOUSTICS AND PLASTERING COMPANY, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Second District
    No. 81-551
    Opinion filed June 23, 1982.

      D. Richard Joslyn, Louis W. Brydges, and James Babowice, all of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellant.
    Tyrone Fahner, Attorney General, and Doss, Puchalski, Keenan, Bargiel & Dicks, Ltd., both of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from an action instituted under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) wherein American Acoustics and Plastering Company, Inc. (plaintiff), sought review of a decision of the Department of Revenue (Department) which denied plaintiff’s claim for a refund of Retailers’ Occupation Tax, Municipal Retailers’ Occupation Tax, and Use Tax which it had paid. The trial court affirmed the decision of the Department.

On appeal, plaintiff contends that the taxes were paid under a mistake of fact or an error of law thus entitling it to a refund pursuant to section 6 of the Retailers’ Occupation Tax Act (Act) (Ill. Rev. Stat. 1979, ch. 120, par. 445); that the taxes were barred by the statute of limitations contained in section 5 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 444) and the taxes were paid under duress; and that the administrative proceeding was violative of due process of law.

Plaintiff is a subcontractor who performs lath and plaster construction and installs acoustical ceiling systems. Pursuant to section 6 (Ill. Rev. Stat. 1979, ch. 120, par. 445), plaintiff filed a claim with the Department for a credit or refund of Illinois Retailers’ Occupation Tax, Municipal Retailers’ Occupation Tax and Use Tax paid by it for the period beginning October 1967 and ending December 1975. At the administrative hearing the following evidence was adduced:

Mr. Ted Edwards, plaintiff’s vice-president, testified on behalf of plaintiff. He stated that from the time of plaintiff’s incorporation in 1961 until 1967, plaintiff collected its own retailers’ occupation and use taxes. In 1967 plaintiff was audited by the Department. At that time plaintiff was doing mostly nontaxable work, i.e., school and municipal buildings. The Department’s auditor suggested that since plaintiff did not do much taxable work, it should let the suppliers from whom it made its purchases pay the tax and the suppliers should in turn charge plaintiff for the tax. Plaintiff sent a letter to all its suppliers notifying them that they were to charge plaintiff for the tax. Plaintiff’s retailers’ occupation tax number was cancelled in 1967. Edwards believed that plaintiff’s suppliers thereafter collected and paid the tax. Plaintiff did not introduce into evidence any receipts of its payments or any other record of payment of the tax.

In 1976 plaintiff underwent a spot audit by the Department conducted by Michael Magnusen. It was determined by him that there existed some discrepancies in plaintiff’s records and a full audit was completed. Plaintiff was advised thereafter that it owed the Department $23,581.66 for the period October 1967 through December 1975 for delinquent Retailers’ Occupation Tax, Municipal Retailers’ Occupation Tax, and Use Tax. Edwards admitted that since 1967, plaintiff’s business underwent a change and did more acoustical installation work and sales at retail than it did nontaxable work. Plaintiff then had its own auditor come in to do a private audit, after which there was considerable discussion with Magnusen concerning the assessment. Edwards testified he was given a standard form from the Department stating what recourse the Department had if the assessment was not paid: lien in favor of the Department; legal action; and seizure of assets. Edwards further stated that Magnusen advised him that if the delinquent tax was not paid the Department would “slap a lien on our bank account and various other assets.” Plaintiff paid the full amount of the assessment, $23,581.66 on August 31, 1976. Edwards stated that plaintiff paid the tax because it believed it was “either that or lock the door.” Edwards further stated that at that time neither he nor anyone else associated with plaintiff was informed of the three-year statute of limitations (see Ill. Rev. Stat. 1979, ch. 120, par. 444) and he never signed a waiver of this statute of limitations.

Plaintiff was issued a notice of tax liability on December 1, 1976. Included in the notice of delinquent tax was a claim of $13,205.73 for interest and penalties on the assessment paid in August 1976. Edwards, on behalf of the plaintiff, requested and received a hearing to determine whether the Department should waive the penalty and interest. The Department felt that since one of its employees had advised plaintiff to cancel its tax number and let its suppliers collect the tax, that to charge plaintiff interest and penalties was unfair. Therefore, plaintiff was advised that penalties and interest were waived. Later plaintiff received a letter from the Department advising it that the waiver only pertained to the period between February 1, 1968, and August 31, 1973, and therefore $5,305.87 penalties and interest were due and owing. Plaintiff paid this amount under protest which was later denied by the Department.

Michael Magnusen testified at the hearing for the Department. He conducted the 1976 audit of plaintiff’s records. In doing so, he looked over plaintiff’s general ledger, cash receipts journal, cash disbursements, vendor invoices and State and Federal income tax returns. He noted that at the beginning of the audit period plaintiff was doing mostly nontaxable work but it later began doing taxable work which outweighed the nontaxable work. His audit was admitted into evidence. He further testified that he never asked Edwards to sign, on behalf of plaintiff, a consent or waiver of the statute of limitations nor did he inform Edwards of the statute of limitations. Magnusen also testified that at the time Edwards signed the final assessment which listed the amount of tax due no threats were made by him although Edwards was informed of “what remedies the State had.” He believed this was standard procedure and did not amount to duress.

The Department denied plaintiff’s claim, finding that plaintiff owed the taxes, that there was no wilful failure or refusal by plaintiff to file the past returns, and that plaintiff had voluntarily signed the combined tax return and paid the back taxes on August 31, 1976.

First, we consider the constitutional question raised by plaintiff that its due process right was violated by the procedure at the administrative hearing where the hearing officer assumes both prosecutorial and adjudicative functions pursuant to the Department’s Hearing Rule 2 — 4. Plaintiff acknowledges that earlier decisions of our supreme court have held that this procedure does not violate due process (see Murphy v. Cuesta, Rey & Co. (1942), 381 Ill. 162, 45 N.E.2d 26; Department of Finance v. Gandolfi (1940), 375 Ill. 237, 30 N.E.2d 737; Department of Finance v. Cohen (1938), 369 Ill. 510, 17 N.E.2d 327), but urges this court to re-examine this issue in the light of more recent decisions of other courts, citing Withrow v. Larkin (1975), 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456; Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593; Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011; and Huber Pontiac, Inc. v. Allphin (S.D. Ill. 1977), 431 F. Supp. 1168, revd on other grounds (7th Cir. 1978), 585 F.2d 817. We find these cases either inapposite or not controlling. Instead, dispositive of this issue are recent decisions of this court which hold that having the hearing officer also act as a representative of the Department is not, in and of itself, a constitutional deprivation of due process. (Howard Worthington, Inc. v. Department of Revenue (1981), 96 Ill. App. 3d 1132, 421 N.E.2d 1030; Lakeland Construction Co. v. Department of Revenue (1978), 62 Ill. App. 3d 1036, 379 N.E.2d 859; Sundstrand Corp. v. Department of Revenue (1975), 34 Ill. App. 3d 694, 339 N.E.2d 351.) Thus, since plaintiff’s real challenge is addressed only to the general procedure and not to any particular facts in the way the hearing was conducted below, we reject this contention in view of the settled law in Illinois.

Plaintiff next contends that it is entitled to a refund pursuant to section 6 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 445) “as the result of a mistake of fact or an error of law.” In this regard plaintiff advances two different bases for that contention. First, plaintiff argues that it was the duty of plaintiff’s suppliers to collect and pay the tax and that plaintiff does not owe the tax that it paid for the entire period from October 1967 through December 1975 amounting to $28,889.53. Alternatively, plaintiff contends that it does not owe $16,814.67, which was the amount pertaining to the period between October 1967 and August 1973, since that sum is barred by the three-year statute of limitations set forth in section 5 of the Act. Ill. Rev. Stat. 1979, ch. 120, par. 444.

The right to a refund is of statutory origin, and in the absence of a statute, taxes voluntarily, though erroneously paid, cannot be recovered. (Snyderman v. Isaacs (1964), 31 Ill. 2d 192, 201 N.E.2d 106; W. F. Monroe Cigar Co. v. Department of Revenue (1977), 50 Ill. App. 3d 161, 365 N.E.2d 574.) The Illinois General Assembly has enacted such a refund provision as part of the Illinois Retailers’ Occupation Tax Act. (See People ex rel. Herlihy Mid-Continent Co. v. Nudelman (1938), 370 Ill. 237, 18 N.E.2d 225.) Section 6 provides, inter alia, as follows:

“If it appears, after claim therefor filed with the Department, that an amount of tax or penalty or interest has been paid which was not due under this Act, whether as the result of a mistake of fact or an error of law, except as hereinafter provided, then the Department shall issue a credit memorandum or refund to the person who made the erroneous payment or, if that person has died or become incompetent, to his legal representative, as such.” (Ill. Rev. Stat. 1979, ch. 120, par. 445.)

In considering plaintiff’s first contention, that it did not owe the tax because it was the obligation of its suppliers to collect and pay the tax, a well-established principle of law is involved. Findings of the Department of Revenue on questions of fact are prima facie correct and are not to be disturbed on review unless manifestly against the weight of the evidence. (Marion Power Shovel Co. v. Department of Revenue (1969), 42 Ill. 2d 13, 244 N.E.2d 598; W. F. Monroe Cigar Co. v. Department of Revenue (1977), 50 Ill. App. 3d 161, 163, 365 N.E.2d 574.) A corrected return as prepared by the Department is deemed prima facie correct. Howard Worthington, Inc. v. Department of Revenue (1981), 96 Ill. App. 3d 1132, 1134, 421 N.E.2d 1030.

Mr. Magnusen, a Department auditor, testified and Department exhibits in the record show, that during the period in question from October 1967 through December 1975, the plaintiff had unreported receipts from taxable sales, in-state purchases and purchases subject to use tax resulting in a tax of $23,581.66. While it is apparent that the plaintiff’s business in 1967 involved little work which led to its reliance upon its suppliers to collect the retail taxes at the Department’s suggestion, the business changed over the years so that it engaged in both the use and sale of personal property subject to the taxes. The plaintiff failed to introduce into evidence any receipts or other evidence of payment of the taxes to its suppliers or any proofs to rebut the evidence that it made a significant number of sales at retail for which it incurred retailers’ occupation tax. Plaintiff’s employee Edwards’ statement that it was his “impression” that the suppliers it purchased from were paying the tax on the sale and charging it to plaintiff, was unsupported by any other evidence. Thus, we conclude that plaintiff has failed to rebut the prima facie case made by the Department that it owed both sales and use taxes.

The second basis for plaintiff’s contention that the taxes paid by it was the result of a mistake of fact or an error of law and thus it is entitled to a refund is premised on its argument that the taxes paid were barred by the applicable three-year statute of limitations contained in section 5 of the Act. (Ill. Rev. Stat. 1979, ch. 120, par. 444.) The statute of limitations contained in section 5 provides, in pertinent part as follows:

“Except in case of wilful failure or refusal to file a return when due, or with the consent of the person to whom the notice of tax liability is to be issued, no notice of tax liability shall be issued on and after each July 1 and January 1 covering gross receipts received during any month or period of time more than 3 years prior to such July 1 and January 1, respectively: Provided, however, that the foregoing limitations upon the issuance of a notice of tax liability shall not apply to the issuance of any such notice with respect to any period of time prior thereto in cases where the Department has, within the period of limitation then provided, notified a person of the amount of tax computed even though the Department had not determined the amount of tax due from such person in the manner required herein prior to the issuance of such notice, but in no case shall the amount of any such notice of tax liability for any period otherwise barred by this Act exceed for such period the amount shown in the notice theretofore issued.”

In the instant case, taxes for the period from October 1967 through August 1973, amounting to $16,814.67, were not sought to be collected until August 1976. Thus, plaintiff argues that $16,814.67 of the $23,581.66 paid on August 31, 1976, was paid as a result of a mistake of fact or an error of law, i.e., the three-year statute of limitations, and should be returned to it.

Generally, statutes of limitations affect the remedy by limiting the period within which legal action may be brought or remedies enforced; they bar the right to sue for recovery but do not extinguish the underlying debt which remains as before. (Fleming v. Yeazel (1942), 379 Ill. 343, 40 N.E.2d 507; Cook v. Britt (1972), 8 Ill. App. 3d 674, 290 N.E.2d 908.) In La Pine Scientific Co. v. Lenckos (1981), 95 Ill. App. 3d 955, 420 N.E.2d 655, the appellate court held that the Department (of Revenue) could set off assessments barred by the statute of limitations against an overpayment of income taxes and payments due to it for merchandise sold to the State and held by it. The court stated:

“It is clear that the assessments in question remain as debts owing to the State but are not enforceable by means of a lawsuit brought by the State. They had not been ‘extinguished’ as the trial court found but were merely unenforceable in a court of law. As such, the assessments are still claims ‘then due and payable’ for purposes of section 10.05 and were properly set off against plaintiff’s tax overpayment.” (95 Ill. App. 3d 955, 958, 420 N.E.2d 655.)

Thus, we find these cases controlling, and conclude that the limitation period here only barred the right of the Department to bring an action to recover the taxes and not their right to keep taxes which were paid to it by plaintiff and were validly due the Department.

Plaintiff next argues that the failure of the Department to inform him of the applicable statute of limitations combined with the threats of the Departments employees to “slap a lien on its bank account” and take other legal action against it forced it to sign the return and pay the tax on August 31, 1976, under duress. As a result, plaintiff contends, it did not voluntarily consent to waive the statute of limitations in section 5 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 444) previously set forth above.

Plaintiff’s contention that its “consent” to waive the statute of limitations was under duress misconstrues section 5 of the Act. The prohibition contained in section 5 limits the Department from issuing a notice of tax liability beyond the three-year limitation period without the consent of the person to whom the notice is to be issued. It is evident in the instant case that plaintiff paid the back taxes before any notice of tax liability was issued. While a notice of tax liability was later issued for penalties and interest, the penalties and interest on taxes owed prior to August 31, 1973, were subsequently waived by the Department. Thus, plaintiff’s consent was unnecessary under this section since the back taxes were paid prior to issuance of the notice of tax liability. Moreover, duress will not be found from the mere informing of the taxpayer of the possible remedies the Department may have, absent fraud, if payment is otherwise voluntary. (See Richardson Lubricating Co. v. Kinney (1929), 337 Ill. 122, 168 N.E. 886.) Nevertheless, where, as here, the taxpayer is claiming a credit or refund under section 6 (Ill. Rev. Stat. 1979, ch. 120, par. 445) as the result of a mistake of fact or error of law, we believe the actions of the Department may not induce the mistake of fact or error of law.

In the case at bar, while the Department disputes the plaintiff’s claim of duress at the time plaintiff paid the back taxes, it is clearly evident from the record that at the time of this payment on August 31,1976, the statute of limitations barred legal action by the Department and yet, the Department advised plaintiff of remedies available to the Department to enforce collection of the tax which included legal remedies. In fact, those legal remedies were not available to the Department here since the plaintiff was found not to have wilfully failed or refused to file returns. Under these circumstances, the Department’s actions induced plaintiff to believe that taxes were owed which the Department could collect through available legal remedies. As this was incorrect in both fact and law, the plaintiff’s payment under these facts was in error and it is entitled to a refund of $16,814.67 for the period from October 1967 through August 1973. The Department knew under section 5 that it could not issue a notice of tax liability, it knew that legal action could not be taken to collect taxes beyond the three-year limitation period, and still advised the plaintiff of legal remedies which, in fact, could not be used here. Under these circumstances, the Department’s action induced plaintiff into paying taxes it otherwise would not have had to pay.

The Department makes the additional argument that even if a tax is paid as a result of a mistake of fact or an error of law, no credit or refund is allowed unless it appears that the claimant bore the burden of such amount. It contends that there is some evidence in the record that plaintiff charged and kept the tax from those to whom it sold. While it is true that if the taxpayer making the claim has passed the tax on to the customer he is not entitled to credit although the taxes were paid in error (Chuck Thiel Auto Sales, Inc. v. Isaacs (1962), 24 Ill. 2d 302, 181 N.E.2d 149; W. F. Monroe Cigar Co. v. Department of Revenue (1977), 50 Ill. App. 3d 161, 162, 365 N.E.2d 574), the record here falls short of warranting the conclusion that plaintiff did not bear the burden of the tax. No competent evidence was introduced by the Department to support this argument. While there is a conclusion to this effect contained in an interoffice letter of a Department auditor, no evidence is in the record to support such a conclusion and we therefore reject it.

For the foregoing reasons, we find the plaintiff is entitled to a refund of $16,814.67 and any statutory interest to be computed thereon, and reverse that portion of the judgment and remand for computation of statutory interest. In all other respects the judgment of the trial court is affirmed.

Affirmed in part, reversed in part and remanded.

NASH and LINDBERG, JJ., concur.


author: JUSTICE SCOTT

text:
    RAPID TRUCK LEASING, INC., et al., Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant.—(ASSOCIATED TRUCK LINES, INC., et al., Intervening Defendants-Appellants.)
    Fourth District
    No. 17438
    Opinion filed May 6, 1982.
    Modified opinion filed on denial of rehearing August 10, 1982.

      Edward D. McNamara, Jr., and Leslieann G. Maxey, both of Springfield, for appellant Associated Truck Lines, Inc.
    Tyrone C. Fahner, Attorney General, of Chicago (Hercules F. Bolos and Allen C. Wesolowski, Assistant Attorneys General, of counsel), for appellant Illinois Commerce Commission.
    Robert T. Lawley, of Springfield, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

On September 5,1975, Rapid Truck Leasing, Inc., a regulated motor carrier, petitioned the Illinois Commerce Commission to purchase all the outstanding stock of Goodwine Trucking Co., also a regulated motor carrier, pursuant to the provisions of section 18 — 309 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95M, par. 18 — 309). In an order dated May 4, 1977, rendered at the conclusion of public hearings, the commission authorized Rapid Truck to acquire control of Goodwine, but limited the operating authority of Goodwine in contrast to the authority granted in the certificate previously issued. Specifically, the cargo Good-wine was permitted to carry and the points from which Goodwine could originate shipments were both limited.

Rapid Truck, unhappy with the commission’s order, appealed to the Circuit Court of Sangamon County. In a December 21,1978, opinion, the circuit court held that the commission’s order was based on improper findings and was against the manifest weight of the evidence. On review of the circuit court opinion, the appellate court concluded that the “Commission’s order did not make sufficient findings to allow judicial review of the issues,” further noting that without sufficient findings it could not “reach the question of whether the commission’s decision was against the manifest weight of the evidence.” (Knox Motor Service, Inc. v. Illinois Commerce Com. (1979), 77 Ill. App. 3d 590, 396 N.E.2d 280.) The appellate court remanded the matter to the commission for further proceedings consistent with its opinion.

The appellate court in Knox did not expressly mandate whether the findings which it required should be based upon the existing record or whether supplemental evidence should be elicited on remand. Upon remand, the commission, in a decision that was protested by Rapid Truck, conducted further hearings and permitted certain motor carriers who had intervened in the cause to present oral and documentary evidence relative to the issue of whether and to what extent economic harm would result to them from a broader grant of authority to Goodwine. Following these supplemental hearings, the commission handed down an order dated December 10, 1980, which again modified the operating authority of Goodwine, but to a lesser extent than the May 4, 1977, commission order. Again Rapid Truck sought judicial review of the commission’s decision, arguing that the commission lacked authority to hold supplemental hearings. In a decision rendered August 3, 1981, the Circuit Court of Sangamon County concurred with Rapid Truck’s position, finding that it was error to conduct further hearings following remand and to consider evidence from such hearings in its post-remand order. Accordingly, the circuit court set aside the December 10,1980, order and again remanded the cause to the commission. For a second time, the commission has prosecuted an appeal to this court seeking to overturn the order of the circuit court.

Essentially, the commission’s position is that the appellate court decision in Knox referenced the case of Cooper v. Illinois Commerce Com. (1977), 49 Ill. App. 3d 398, 364 N.E.2d 396, as the precedent controlling the commission’s power to narrow the operating authority of motor carriers in circumstances like those of the instant case. The Cooper decision was handed down subsequent to the commission’s 1977 decision, and the commission asserts that Cooper expanded the scope of evidence that would be relevant to the issue of transferring operating authority from one motor carrier to another. The commission concludes its argument by urging that common sense dictates that supplementary evidence must be received to make the findings necessitated by Cooper and Knox when such evidence was originally excluded from the record as irrelevant based upon a mistake of law. We cannot agree with the commission’s initial premise.

We first observe that an order remanding a cause to the commission does not automatically require additional hearings or evidence. The question in each case is whether additional hearings or evidence are necessary to enable the commission to comply with the remanding court’s mandate. (City of Alton v. Alton Water Co. (1962), 25 Ill. 2d 112, 182 N.E.2d 665.) On first reading, the Knox decision clearly creates no such necessity. All that is required is for the commission to make findings, i.e., draw conclusions from the evidence in the record, so as to permit judicial review of the commission’s order. We might agree with the commission that supplementary proceedings were necessary if the conclusions required by Cooper and Knox could not be drawn because the law as declared by a subsequent court proceeding left the record incomplete. This is not, however, true in the case at bar.

The commission contends that evidence of harm to intervenors was considered irrelevant when its initial order was entered, and only after Cooper did such evidence become relevant. In fact, in allowing transfers of operating authority from one motor carrier to another, the commission has always been charged to determine “that the transaction proposed will be consistent with the public interest and the policy declared * * *." (Ill. Rev. Stat. 1975, ch. 95½, par. 18 — 309(c).) Evidence of harm would be relevant to the question of whether the transfer would be consistent with the public interest. (Jenkins Truck Line, Inc. v. Illinois Commerce Com. (1981), 96 Ill. App. 3d 650, 422 N.E.2d 640.) Not only was the issue of harm to other motor carriers relevant at the time the initial hearings were conducted, but the very intervening carriers who later testified at the supplementary hearings were given ample opportunity to present their case in the first instance. The intervenors failed to appear and testify after being granted four continuances for the express purpose of doing so. We find nothing in the Knox opinion which would necessitate the supplemental hearings held by the commission, particularly when there was no good reason for the intervenors’ failure to present the supplementary evidence in the initial hearing. Cf. Texas Oil & Gas Corp. v. Railroad Com. (Tex. Cir. App. 1978), 575 S.W.2d 348.

We conclude that the order of the Circuit Court of Sangamon County is affirmed and that this case is remanded to the commission in order that findings may be made and a decision rendered consistent with the views expressed herein.

Affirmed in part and remanded for further proceedings.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE HOPF

text:
    HOUSEHOLD FINANCE CORPORATION, Plaintiff-Appellee, v. RAYMOND L. BUCK et al., Defendants-Appellants.
    Second District
    No. 81-717
    Opinion filed June 23, 1982.

      David F. Black, Robert W. Esler, and Donald F. Dace, all of UAW Legal Services, of Belvidere, for appellants.
    Paul S. Godlewski, of Canfield Law Offices, of Rockford, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendants Raymond and Mary Buck obtained a consumer installment loan from plaintiff Household Finance Corporation (HFC). Subsequently HFC brought an action in small claims court to recover money due them under the loan agreement and the Bucks filed a counterclaim alleging violations of both the Truth in Lending Act (TILA) (15 U.S.C. sec. 1601 et seq. (1976) (prior to 1980 amendment)); Federal Reserve Board Regulation Z (12 C.F.R. sec. 226.1 et seq.); and the Illinois Consumer Installment Loan Act (CILA) (Ill. Rev. Stat. 1977, ch. 74, pars. 66(i), (k) and 70(b)). The parties have agreed that $682.71 is the balance due on the loan. The Bucks appeal from the denial of their counterclaim.

The Bucks’ counterclaim contended that the HFC contract failed to make adequate disclosures under TILA, Regulation Z and CILA. Thus, they sought statutory damages.

The Bucks’ first contention is that the lack of adequate security disclosure results in TILA and Regulation Z violations. TILA was enacted by Congress for the purpose of assuring “a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit * * *." (15 U.S.C. sec. 1601(a) (1976).) The implementation of this is carried out by Regulation Z, which was promulgated by the Board of Governors of the Federal Reserve Board (Board). (15 U.S.C. sec. 1602(b) (1976); 12 C.F.R. sec. 226.8.) It is clear that State courts have jurisdiction to enforce TILA. (15 U.S.C. sec. 1640(e) (1976); Associates Finance, Inc. v. Cedido (1980), 89 Ill. App. 3d 179, 411 N.E.2d 1194.) It is also clear that HFC is a creditor under TILA (15 U.S.C. secs. 1602(f) and 1640 (1976)).

The form used by HFC in this case contains three boxes that relate to security for the loan. These boxes are headed respectively “Chattel Mortgage,” “Wage Assignment,” and “Real Estate Mortgage.” To determine the meaning of these boxes, the debtor must refer to the section labeled “SECURITY,” found several inches below the boxes. This section provides:

“Unless ‘No’ appears under ‘Wage Assignment’ above, there is an assignment of your salary and wages. Unless ‘No’ appears under ‘Chattel Mortgage’ above, there is a Chattel Mortgage Security Agreement on all household and consumer goods belonging to borrowers and located at their address stated above and any property listed below. If ‘Yes’ appears under ‘Real Estate Mortgage’ above, there is a mortgage on the real estate belonging to borrowers which is located at their address stated above, unless a different address is stated below. Any real property which secured this loan may secure future or other indebtedness.”

This provision, when read in conjunction with the three boxes fails to disclose HFC’s security interest clearly or in meaningful sequence as required by Regulation Z (12 C.F.R. sec. 226.6(a).) The blanks in the boxes do not have a consistent meaning, and result in a confusing disclosure as well as a clouded identification of the security interest, because a stringent view is taken of unclear check-off devices (Associates Finance, Inc. v. Cedillo (1980), 89 Ill. App. 3d 179, 183, 411 N.E.2d 1194), the use of the boxes in this fashion constitutes a violation of TILA and Regulation Z.

In a consumer installment loan, such as the Rucks obtained from HFC, various credit terms must be disclosed. (15 U.S.C. sec. 1639 (1976); 12 C.F.R. sec. 226.8.) Due to TILA’s remedial nature, creditors must meet a standard of strict compliance with these technical disclosure requirements. (Kraft v. No. 2 Galesburg Crown Finance Corp. (1981), 95 Ill. App. 3d 1044, 420 N.E.2d 865; Associates Finance, Inc. v. Cedillo (1980), 89 Ill. App. 3d 179, 411 N.E.2d 1194.) An objective standard is used in determining TILA violations; the consumer need not have been deceived in fact for the statute to have been violated. Smith v. Chapman (5th Cir. 1980), 614 F.2d 968.

A creditor must describe any security interest obtained as a result of the loan and clearly identify the property to which the security interest relates. (15 U.S.C. sec. 1639 (1976); 12 C.F.R. sec. 226.8; Associates Finance, Inc. v. Cedillo (1980), 89 Ill. App. 3d 179, 411 N.E.2d 1194.) The disclosure of the security interest, as all other disclosures, must be made clearly, conspicuously, and in meaningful sequence. (12 C.F.R. sec. 226.6(a).) Similar requirements exist under TILA and Regulation Z as amended. Pub. Law 96-221, sec. 614(a); 12 C.F.R. secs. 226.17(a)(1), 226.18 (1980) (as amended).

“Clear identification” means that the creditor must provide enough information to preclude any reasonable question concerning the goods to which the security interest attached. Associates Finance, Inc. v. Cedillo (1980), 89 Ill. App. 3d 179, 183, 411 N.E.2d 1194.

The fact that the description of the boxes’ meaning is separated from the boxes themselves obfuscates the disclosures. Disclosures of related terms must follow a logical order and should not be scattered throughout the agreement. Basham v. Finance America Corp. (7th Cir. 1978), 583 F.2d 918, 926, cert. denied sub nom. DeJaynes v. General Finance Corp. (1979), 439 U.S. 1128, 59 L. Ed. 2d 89, 99 S. Ct. 1046.

None of the cases cited by HFC deal with inconsistent use of terms in boxes, and therefore are distinguishable on their facts. Further, this court cannot consider the contracts HFC encloses in its brief, as they are outside the record. Littrell v. Coats Co. (1978), 62 Ill. App. 3d 516, 379 N.E.2d 293.

TILA and Regulation Z were amended recently. However, the amendments to TILA do not become effective until October 1, 1982. (Pub. Law 96-221 (1980).) Revised Regulation Z became effective April 1, 1981, but compliance is optional until October 1, 1982. (12 C.F.R. sec. 226.) As the loan agreement here was executed in 1977, HFC cannot argue that it is exercising the option to comply with the revised Regulation Z. Recause a court is to apply the law in effect at the time it renders its decision (Bradley v. School Board of Richmond (1974), 416 U.S. 696, 40 L. Ed. 2d 476,94 S. Ct. 2006), the amendments to TILA and Regulation Z do not control this case, but may be persuasive where similar to the old law.

In Allen v. Beneficial Finance Co. (7th Cir. 1976), 531 F.2d 797, cert. denied (1976), 429 U.S. 885, 50 L. Ed. 2d 166, 97 S. Ct. 237, the issue of meaningful disclosure was discussed. According to Allen, “meaningful sequence” requires that disclosure statements basically follow two criteria. The first criteria requires groupings of logically related terms, and the second requires that the terms in these groupings be arranged in a logically sequential order, emphasizing the most important terms. (531 F.2d 797, 801.) The Allen court found a failure to provide a disclosure in meaningful sequence where some figures were listed horizontally and others were listed vertically. The disclosure attempt also contained random groupings and columns of numbers that appeared to add up when in reality they did not. The same “meaningful sequence” analysis was applied in Basham, where the forms were deemed sufficient.

In the case before us the HFC form makes an inconsistent use of check-off devices. Hence, we believe the document makes an unclear disclosure of information as to what security interests attach. Therefore both TILA (15 U.S.C. sec. 1639 (1976)), as well as CILA (Ill. Rev. Stat. 1977, ch. 74, par. 66(k)), were violated.

The Bucks’ next contention is a challenge to the validity of the contract’s confession of judgment clause. They urge that HFC did not adequately describe the security interest created by that clause. While confession of judgment clauses are not permitted today (Ill. Rev. Stat. 1979, ch. 110, par. 50(3)), they were allowed at the time this contract was executed. (Ill. Rev. Stat. 1977, ch. 110, par. 50.) A confession of judgment clause which enables the creditor to obtain a judgment against the debtor without prior opportunity for the debtor to defend is a security interest, and must be disclosed as such. 12 C.F.R. sec. 226.202.

The confession of judgment clause authorizes any attorney, after a default on the contract, to appear in court for the debtors and confess a judgment without process. Under the clause, debtors consent to immediate execution upon such judgment, which execution is stated to reach all nonexempt personal property of the borrowers owned at the time of execution. Additionally, next to the lines where borrowers signed the contract there was a notice in boldface type which stated:

“NOTICE OF WAIVER OF RIGHTS: THIS JUDGMENT NOTE PERMITS A JUDGMENT TO BE ENTERED AGAINST YOU WITHOUT NOTICE OR A HEARING IF YOU SHOULD DEFAULT IN THE PAYMENT OF ANY INSTALLMENT.”

The Bucks assert that this description misstates the law due to its failure to indicate that a lien on all the debtors’ tangible personal property is created by placing a writ of execution with the sheriff (see Ill. Rev. Stat. 1979, ch. 77, par. 9), and its failure to indicate that HFC’s right of execution of the confessed judgment is limited in that it cannot execute, without further proceedings, against a debtor’s wages or intangible personal property. See Ill. Rev. Stat. 1979, ch. 62, par. 82; City-Wide Realty Co. v. Fryer (1979), 70 Ill. App. 3d 649, 388 N.E.2d 980.

On the other hand, this statement does alert the debtor to the fact that judgment may be entered and executed upon without notice or hearing, and adequately describes the consequences of confessed judgment. In Garza v. Chicago Health Clubs, Inc. (N.D. Ill. 1972), 347 F. Supp. 955, an allegation virtually the same to that raised here was discussed. The court noted that although the clause would result in levy and execution, and was phrased in a legalistic manner, it was not so confusing that it would be misunderstood by the debtor. Therefore, the security interest was deemed adequately described. We believe that the requirements of TILA and CILA were met in this regard, and see no violation. While it is clear that a creditor taking security in a debtor’s property must make a meaningful disclosure of credit terms, the term security interest must be interpreted so as to strike a balance between “meaningful disclosure” and “informational overload.” (Anderson Brothers Ford v. Valencia (1981), 452 U.S. 205, 223, 68 L. Ed. 2d 783, 797, 101S. Ct. 2266, 2276.) The details of executing a default judgment, once the debtor is aware of the confession of judgment provision, would be of little or no meaningful guidance to consumers in shopping for credit. Accordingly, we believe the disclosure of the confession of judgment provisions was adequate under TILA and CILA.

The last contention raised by the Bucks is that the delinquency charges section of the contract is so complex that they would need access to a high speed computer in order to figure it out. The section provides:

“The delinquency charge is 1.5476% per month. Such monthly rate of charge may be collected on the unpaid amount of any delinquent installment that is outstanding after the due date originally scheduled. If 2 (two) or more installments are delinquent on any installment due date and the contract balance is reduced by the rebate which would be required for prepayment in full on such installment date, such monthly rate of charge may be collected on actual unpaid balances of the contract (as reduced by the rebate and accrued delinquency charges) for the time such balances are actually outstanding until the contract is fully paid. The rate of charge for each day in a fraction of a month is l/30th of the monthly rate.”

The rate of charge for delinquent payments is stated in language similar to that of the statute authorizing such charges. (Ill. Rev. Stat. 1979, ch. 74, par. 65.) The disclosure must be presented in a way that the borrower can comprehend easily and must be intelligible to the average consumer. Allen v. Beneficial Finance Co. (7th Cir. 1976), 531 F.2d 797, cert. denied (1976), 429 U.S. 885, 50 L. Ed. 2d 166, 97 S. Ct. 237.

While disclosure of the method of computing delinquency charges may be sufficient if the statutory language is used (Scott v. Liberty Finance Co. (D. Neb. 1974), 380 F. Supp. 475), TILA and Regulation Z are violated if the statutory terms are unclear and meaningless to the consumer. (Smith v. Chapman (5th Cir. 1980), 614 F.2d 968.) TILA is intended to provide the consumer with an easy reference so that credit terms can be compared. (614 F.2d 968, 971.) This purpose is defeated where the consumer is unable to compute what the rate of charge for late payments would be, and TILA is violated in such a situation. (614 F.2d 968, 975.) Both TILA (15 U.S.C. sec. 1639 (1976)) and CILA (Ill. Rev. Stat. 1977, ch. 74, par. 66(i) are violated by the overly complicated delinquency charge provision used by HFC.

The penalty for violation of TILA and Regulation Z is that the creditor is liable for twice the finance charges up to $1,000, but not less than $100, costs and attorney fees. (15 U.S.C. sec. 1640(a) (1976); Public Finance Corp. v. Riddle (1980), 83 Ill. App. 3d 417, 403 N.E.2d 1316.) However, the debtor is entitled to only one recovery for federal violations, even though there are multiple violations.

As indicated previously in this opinion, we are of the opinion that both TILA and CILA were violated by HFC. The remedies provided by the Illinois and Federal Acts are not duplicative but cumulative. (Public Finance Corp. v. Riddle (1980), 83 Ill. App. 3d 417, 422, 403 N.E.2d 1316; Gray v. ITT Thorp Corp. (1981), 101 Ill. App. 3d 167, 427 N.E.2d 1284; contra, Ninth Liberty Loan Corp. v. Hardy (1977), 53 Ill. App. 3d 601, 368 N.E.2d 971.) On the other hand, Raymond and Mary Buck are not each entitled to recover. There should only be recovery for the Bucks as a unit, although their recovery can be under both TILA and CILA. 15 U.S.C. sec. 1640(d) (1976).

For these reasons, the judgment of the circuit court of Winnebago County is reversed and remanded for a determination of the amounts to be recovered under TILA (15 U.S.C. sec. 1640(a) (1976)) and CILA (Ill. Rev. Stat. 1977, ch. 74, par. 70).

Reversed and remanded.

SEIDENFELD, P. J, and NASH, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re ESTATE OF DAGNEY SEVERSON, Deceased.—(FIRST NATIONAL BANK AND TRUST COMPANY OF ROCKFORD, Ex’r of the Estate of Dagney Severson, Appellee, v. EVA SEVERSON, Appellant.)
    Second District
    No. 81-730
    Opinion filed June 23, 1982.

      Warren H. Larson, of Street and Larson, of Rockford, for appellant.
    Robert J. Oliver, of Connolly, Oliver, Goddard, Coplan and Close, of Rockford, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The will of Dagney Severson, deceased, admitted to probate, left the entire estate to the Moody Memorial Church of Chicago; and named the First National Bank & Trust Co. of Rockford as executor. Eva Dobson was declared to be the niece and sole heir at law of the decedent, based upon her affidavit of heirship offered by the executor. Dobson then filed suit to contest the will. The trial court, on the executor’s motion in the probate proceedings based on discovery, vacated the previous order of heirship and declared the heirs of Dagney Severson to be unknown. Dob-son appeals, contending that the trial court improperly placed the burden of proof of the amended heirship on her, erroneously admitted several documents; and further claims that the findings were against the manifest weight of the evidence.

Dobson’s first contention is that, once the court entered an order of heirship based on her affidavit, the order was prima facie evidence of heirship which shifted the burden of persuasion to the executor to prove the negative, that is, that Dobson was not the heir. We do not agree.

The statute provides that while the order of the court declaring heirship is prima facie evidence of the heirship “any other legal method proving heirship may be resorted to by any party interested * * *." (Ill. Rev. Stat. 1979, ch. 110½, par. 5 — 3(c).) A proceeding for proof of heirship is purely statutory, is informal, and no provision is made for an answer or any pleadings. (Sebree v. Sebree (1920), 293 Ill. 228, 235.) In the absence of formal pleadings, the general rules of evidence, including the burden of proof, apply in such proceeding. (See 1 Horner, Probate Practice in Estates sec. 205, at 361 (4th ed. 1976).) As in any civil proceeding, the burden of proof in an heirship controversy rests with the party claiming heirship, because the claimant is asserting the affirmative issues. See Lewandowski v. Zuzak (1922), 305 Ill. 612, 618; Hunt v. Morris (1932), 266 Ill. App. 18, 23.

Generally, prima facie means nothing more than “ ‘at first sight’ ” or “ ‘so far as can be judged from the first disclosure’ ” or “ ‘presumably’ ” or “ ‘without more.’ ” (Chicago v. Hertz Commercial Leasing Corp. (1978), 71 Ill. 2d 333, 340.) It has been recommended that the term “prima facie evidence” when used in a statute should be interpreted to establish only a “presumption” which affects only the burden of producing evidence. E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 302.8, at 76 (3d ed. 1979); see also Diederich v. Walters (1976), 65 Ill. 2d 95, 102.

In her affidavit of heirship Dobson stated that the decedent Dagney was one of three children of Bernt Severson and his wife, Christine Hansen [sic] Severson, both of whom predeceased the decedent; that decedent’s sister Helga Severson predeceased the decedent, having never married and leaving no child surviving; and that decedent’s brother Harald Severson also predeceased the decedent, leaving Eva Dobson as his sole heir at law. At the hearing on the motion to amend the heirship it was stipulated on behalf of Dobson that if Mrs. Marjorie Stibb testified, she would have said that she knew the decedent for 45 years, that Dagney had told her that she had a brother who lived in Rockford but was now deceased, who had a daughter, Eva Dobson.

The executor denied that the decedent was the sister of Harald, Dob-son’s father, and produced the testimony of Sam F. Fink, a genealogical investigator, who had been appointed by the court on the executor’s motion. He had the death certificate of decedent upon which Dobson was the informant and in which Dobson named “Berndt Severson” and Kristine Hansen” (maiden name) as Dagney’s father and mother. In her later deposition she stated the mother’s name was actually Kristine Pedderson. Dagney’s birth date was stated to be December 16, 1888, in Norway. Fink went to Oslo, Norway, the birthplace of Dobson’s father, where he collected copies of various documents which, along with other documents obtained in the United States, formed the basis of his report to the court.

The death certificate of Harald Severson, Dobson’s father, indicates his birth date as October 8, 1885, in Norway and the date of his death as June 25, 1932, and the names of his parents as “unobtainable.” His naturalization papers list his birth date as October 8, 1880, at Christiana, Norway, and his date of arrival in the United States as June 29, 1901. His marriage certificate discloses that he was born October 8,1880, at Barum (Oslo) Norway to “Bernt Syversen” and “Lise Olava Syversen (born) Olsen.” His immigration papers indicate that he sailed for the United States on the ship Helga on June 11, 1901.

The marriage record of Bernt Seversen and Lisa Olava Olsen states that they were married on July 7, 1878. The 1891 Oslo census shows the family was headed by Bernt and included Lisa Olava as his wife, and four children in addition to Harald (b. 1880): Laura Amalie'(b. 1878), Borghild Sofie (b. 1883), Helga (b. 1887) and Birgitte Ovida (b. 1889). The deceased, Dagney Severson, is not listed in the 1891 census as a part of the Bernt Seversen household. In addition to Harald’s birth certificate, Fink located the birth certificate of Borghild, Helga, and Birgitte at a parish church where Helga and her husband were buried. No birth record for Dagney was found at that parish.

The death certificate of Bernt’s wife, “Lise Olava Oldsdaughter Syversen” bears the date of death of October 15, 1892. Bernt’s death certificate indicates he died on December 4, 1929.

The census for 1900, by which time Lisa Olsen had died, lists Bernt Severson as head of the household and Harald, Birgitte, and Helga as children. It lists Kristine Severson (b. 1862 in Sweden) as wife and Dagney Severson (b. 1888 in Kristiania (Oslo)) as a daughter. However, Fink searched for but could not find a marriage license for Bernt and Kristine. He testified that Norway did not have laws on adoption until 1917.

The decedent wrote to her attorney in a letter of May 22,1974, that:

“* * * You would like to have a list of the names of my relatives. My parents are dead and I have no brothers or sisters or any other relation. Have never been married.
Well I had a cousin in Sweden which I haven’t seen since we were 8 years old. Don’t know if she is living or where she live [sic].
I hope this takes care of it.”

(This letter was the basis of the will contest on the theory that Dagney did not know her relatives, and, thus, suffered from an insane delusion.)

Dagney Severson’s naturalization papers state that she was born on December 16, 1888, in Oslo, that her last foreign residence was Hovik Verk, and that she emigrated to the United States on the S.S. C.R. Tietgen on August 27, 1907. The shipping list for the C.R. Tietgen showed that the ship sailed on August 13, 1907, and listed “Dagney Sofie Syversen Svendsen” born December 16,1888, hometown, Hovik. Fink also located her application for a United States social security number, dated August 4, 1937, in which she gave her name as “Dagney Sophie Severson” born December 16, 1888, in Oslo, and the names of her parents as Bernt Severson and Christine Petterson. Fink also obtained from the Department of Labor, Immigration and Naturalization Services a copy of the letter of Dagney Severson, dated September 13, 1938, which was sent in response to a letter from Severson regarding her petition for citizenship. The letter in part states that “[i]t is possible you should have given your real father’s name as of the time you filed your application and petition for citizenship.”

Additional testimony by Fink related to documents located in Norway at a hospital which contained a church. These purported to show a church book entry relating to a “Dagny Sofie” (no last name) for the year 1888 listing as parents “Samuel Svendsen” and “Kristina Pettersen” (Exhibit No. 29). In 1980 he was also furnished a certified copy of a birth record which apparently was based on and prepared from the church record, showing that “Dagne Sophie” was born December 16, 1888, to Kristina Pettersen and Samuel Svendsen (Exhibit No. 28). Fink also obtained hospital records for the Kristiania (Oslo) Maternity Clinic. The 1888 journal discloses that “Kristine Peters do tter,” born in Venssaland (Sweden), age 26 and unmarried, had a daughter born alive on December 16, 1888. (Exhibit No. 30.) Exhibits Nos. 28, 29 and 30 were objected to at trial and on appeal are claimed to have been erroneously admitted. We therefore will treat them separately.

Setting aside temporarily the contested documents, Exhibits Nos. 28, 29 and 30, we conclude that the executor has sustained its burden of producing evidence which negated the prima facie case of heirship first established by Dobson’s affidavit. The executor was not required to prove “non-heirship”; and Dobson has not furnished sufficient evidence to controvert the evidence that Dagney was not the daughter of Bernt Severson upon whose lineage her claim is based.

The executor came forward with proof that Bernt Severson was married to someone other than Dagney’s mother at the time of Dagney’s birth. The evidence clearly shows that Bernt Severson and Lisa Olava Olsen were married on July 7,1878; that the family of Bernt included Lisa Olava Severson as his wife and four children in addition to Harald, but not including Dagney, as late as 1891; that Dagney was born prior to the 1891 census, December 16,1888; that Bernt Severson’s wife, Lisa, did not die until October 15, 1892; and that some time following her death and prior to the 1900 census Dagney and her mother, Kristine, moved into the Bernt Severson household and apparently lived there until Dagney’s emigration in 1907. In addition, Dagney was never married, and used the last name of “Svendsen” as shown on the shipping list for the C.R. Tietgen on which she sailed to America. Also of significance was the letter from the immigration authorities informing Dagney that on her petition for citizenship she should have given her real name, inferentially, in place of the Severson name found on her declaration of intent. After the executor came forward with this clear proof that Bernt Severson was married to someone other than Dagney’s natural mother at the time of Dagney’s birth, the burden of persuasion on the issue of paternity by “clear and convincing evidence” (Ill. Rev. Stat. 1979, ch. 110½, par. 2 — 2) rested with Dobson as the claimant. (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 13; In re Estate of Larimore (1978), 64 Ill. App. 3d 470, 472.) Dobson was required to prove that Dagney’s natural parents were Bernt Severson and Kristine Petterson, that Bernt and Kristine intermarried, and that Bernt acknowledged Dagney as his child. (Miller v. Pennington (1905), 218 Ill. 220, 224; In re Estate of Waszkiewicz (1963), 42 Ill. App. 2d 49, 61.) Or, in place of proving the intermarriage of Bernt and Kristine, that Bernt was her natural father. (Morelli v. Battelli (1979), 68 Ill. App. 3d 410, 415.) This she did not do on this record.

We conclude that even without the introduction of Exhibits Nos. 28, 29 and 30 the trial court properly found that Dobson was not an heir of Dagney. If, of course, these exhibits were properly admitted they would make the case against Dobson even stronger by showing that her father was Samuel Svendsen and her mother Kristine and that they were not married. But even if these items are subtracted from the executor’s case they do not add any strength to the proof required to have been produced by Dobson when the executor clearly overcame the prima facie case presented in the original affidavit of heirship. We will, however, briefly consider the admissibility of these exhibits.

The record is entitled as the Church Book for birth clinic for the Christiania Parish, recording matters that transpired in the late 1800’s in Norway (Exhibit No. 29). We conclude that it was admitted properly pursuant to Supreme Court Rule 236 (73 Ill. 2d R. 236). The writing or record memorializing or recording any act made “in the regular course of business” at or within a reasonable time after the event is admissible without introducing all the circumstances to the making; and the hearsay nature of the entry affects its weight, not admissibility. “Business” is defined in the rule to include a “calling of every kind.” We consider the rule broad enough to cover regular entries in church records. See Ill. Ann. Stat., ch. 110A, par. 236, Historical and Practice Notes, at 187 (SmithHurd Supp. 1981-82). See also Fed. R. Evid. 803(11).

The document appears to be a baptismal register and the entry as to “Dagny Sofie” reasonably appears to have been made in the regular course of church business; timely to the event recorded; and to be of the kind which the church regularly kept. It was found in the custody of a hospital priest who permitted the genealogical investigator to examine the entry. The church book covered the period from November 17, 1885, to May 26, 1890, inclusive. The year 1888 appears on the top of the page containing the entry for “Dagny Sofie.” It bears the number 234; the entry beneath it, though lined out, clearly bears entry number 235. (In making a photocopy the priest blanked out other entries on the page that had no relation to Dagny.) The fact that the entry was dated (born-16th; baptized 23d) and numbered indicates that the entry was recorded in sequence. It thus appears that the church book is a register or record comprising in a single volume a series of homogenous statements recorded by entries made and regularly kept in official custody. (See 5 Wigmore, Evidence sec. 1636, at 646 (Chadbourn rev. ed. 1974).) The fact that the handwriting of the entrant, presumably the clergyman now deceased, was not proved is an additional circumstance but affects the weight only. It may be noted in this connection that the writing in entries 234 and 235 appear to be in the same hand.

That the columnar entries containing the names of the parents are regularly kept is inferentially established by the column headings appearing in type at the top of the page of the register. The hearsay nature of this portion of the recording again affects its weight but not its admissibility pursuant to Supreme Court Rule 236. The case of Dailey v. Brotherhood of R.R. Trainmen (1924), 311 Ill. 184, 189, cited by Dobson, holds that a baptismal register is admissible only to show the fact, date and place of baptism. However, the conclusion is based on the reasoning that these facts alone are within the personal knowledge of the clergyman. Under Supreme Court Rule 236(a) which post-dates such rulings, it would appear that all contents regularly kept of record by religious organizations would be admissible as an exception to the hearsay rule.

The certified copy, entitled “Birth and Baptismal Certificate” (Exhibit No. 28), merely records the information found on Exhibit No. 29, and stands on the admissibility of the church register. See 5 Wigmore Evidence sec. 1677, at 862 (Chadbourne rev. ed. 1974).

Exhibit No. 30 is purportedly a hospital record containing personal history of the mother. Many of the facts contained in the exhibit are cumulative of other facts in evidence such as age and birthplace. The fact that the record designates the patient’s marital status as “no” does not result in prejudicial error to Dobson, for she does not seriously dispute that in 1888 Bernt Severson was not married to Dagney’s mother; this is confirmed by the 1890 census which listed Bernt Severson’s wife as Lisa Olsen. While we agree that the legitimacy of Dagney was not a direct issue in the case, we find no prejudicial error.

The judgment of the trial court vacating the prior order of heirship and declaring the heirs of Dagney Severson to be unknown is affirmed.

Affirmed.

NASH and HOPF, JJ., concur.