author: CULBERTSON, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Calvin April, Defendant-Appellant.
    Gen. No. 66-91.
    Third District.
    July 8, 1968.

      Samuel J. Andreano, of Joliet, for appellant.
    George Sangmeister, State’s Attorney, of Joliet, for appellee.
   CULBERTSON, J.

A jury in the circuit court of Will County found the defendant, Calvin April, guilty of armed robbery and he was thereafter sentenced to imprisonment for a term of not less than ten nor more than 20 years. By this appeal he seeks a new trial contending that erroneous rulings in the court below prejudiced him and denied him a fair trial. The sufficiency of the evidence to establish guilt beyond a reasonable doubt is not challenged.

Facts necessary to a consideration of the contentions made here disclose that on December 10, 1965, at about 12:45 a. m., Danny Jackson, the attendant at a Joliet gasoline station, was approached by a man who requested some free gasoline. Upon being refused the man went into the station office and there confronted Melvin Leach, a nonemployee who was using the telephone to call a taxi, with a request for money. After Jackson had come into the office and Leach had left it, the man drew a gun and robbed Jackson of approximately $20 in currency and coins. Leach, who was standing outside the station, witnessed the robbery as it occurred and saw the man depart on foot. Within hours after the robbery, and again at the trial, both Jackson and Leach positively identified defendant as the perpetrator of the crime. For the defendant, alibi testimony was produced that he was at the home of his brother at 162 Wallace Street, some 1% miles away, during the entire time the events at the gas station were occurring.

About one hour after the robbery, the suspicions of employees of a Joliet taxi company were aroused by a telephoned request for a cab to be sent to the vicinity of 162 Wallace Street. Consequently, when the cab answered the call, Sergeant James Cronk of the Joliet police force concealed himself in the rear seat with his service pistol drawn. As the cab stopped at its destination defendant opened the rear door and started to draw a gun, but returned it to his pocket upon seeing Cronk. Defendant was then placed under arrest and disarmed, and was found to have $20.16 in coins and currency on his person in denominations comparable to those taken from Jackson.

At the trial the gun taken from defendant was introduced into evidence and was identified by Jackson as the weapon employed in the robbery. Defendant, while testifying in his own behalf, denied having been at the gas station on the night in question and also explained his possession of the gun by saying that he was carrying it for protection against an unnamed individual who had threatened his life, and that he had purchased it two days before the robbery from an unknown tavern patron. On rebuttal a taxi driver named Maurice Bancroft, who identified the gun by its serial number, testified without objection that it was his, that it had been stolen from him by force on the night of December 4, 1965, as he was hauling two passengers, and that defendant was the passenger who took the gun. It is now contended by defendant that the admission of Bancroft’s testimony into evidence was prejudicial error in that it brought before the jury evidence of a crime totally unrelated to the offense for which he was being tried. (See: People v. Lehman, 5 Ill2d 337, 125 NE2d 506; People v. Tranowski, 20 Ill2d 11, 16, 169 NE2d 347.) But, quite apart from the circumstance that no trial objection was made, defendant is in no position to complain. Having taken the stand and having sought to explain his possession of the gun, he put his credibility in issue and subjected it to the same tests as other witnesses. (People v. Miller, 13 Ill2d 84, 108, 148 NE2d 455; People v. Hicks, 362 Ill 238, 243,199 NE2d 368.) Bancroft’s testimony on rebuttal was proper for impeachment purposes, and the incidental showing of another offense by defendant did not render it inadmissible. (People v. Bartz, 342 Ill 56, 65,173 NE 779; People v. Hanley, 317 Ill 39,41-42,147 NE 400.)

Similarly, there is no merit to defendant’s contention that improper evidence showing the crime of resisting arrest was allowed to come before the jury when Officer Cronk testified in detail as to the circumstances of defendant’s arrest. (See: People v. Deal, 357 Ill 634, 641, 192 NE 649.) As was said by the court in People v. Sustak, 15 Ill2d 115, at 124, 153 NE2d 849: “. . . where that separate crime indicates resistance to arrest for the crime charged, is in close proximity in time or locality or otherwise so associated, the details thereof are properly received to show the force and vigor with which the one arrested so resisted, and the extent and nature of the acts committed during his resistance. The details, therefore, are material to the evidence of resistance, and are indicative of and a measure of the consciousness of guilt. People v. Spaulding, 309 Ill 292.” Furthermore, defendant is once again in no position to complain of the evidence on which his contention is based. The record shows that the details of his arrest and resistance came on rebuttal when it became necessary for the prosecutor to recall Officer Cronk to refute and explain testimony of defendant which had charged Cronk with acts of brutality. We note, too, that defense counsel fully cross-examined Cronk as to the same details about which complaint is now made.

During his opening statement the prosecutor told the jury that a “tip-off” from the Yellow Cab Company had led to defendant’s arrest. Later, at the close of the prosecution’s case, defendant made a motion for a mistrial on the ground that no evidence of a “tip-off” had been presented and it is now urged that the Court erred in denying such motion. The record does indeed show that objections of defendant on the ground of hearsay prevented the prosecution from getting the actual conversations between the police and the company employees in evidence. This, however, is not fatal as defendant’s argument assumes. The reasonable inference and inescapable conclusion from other competent evidence in the record was that defendant’s arrest had occurred in the manner the prosecutor stated. As a result, the jury was not misled, nor was the defendant prejudiced.

Defendant’s trial counsel moved to make the opening statement for the defense at the conclusion of the People’s case, and it is now contended that the denial of such motion was an abuse of discretion which denied defendant a fair trial. We are not told, however, in what manner defendant was or would be prejudiced, nor do we find the trial court was so informed when the motion was made, thus making it impossible to determine if an abuse of discretion occurred. What is more, the point was not raised in defendant’s motion for a new trial and is not subject to review. (People v. Gratton, 28 Ill2d 450, 454,192 NE2d 903.)

For his final contention defendant complains of a jury instruction given on the defense on alibi and, without going into detail, it may be agreed that the same and similar instructions have been frequently condemned where, as here, defendant’s proof of alibi does in fact cover the whole of the time of the commission of the crime. (E. g. People v. Frugoli, 334 Ill 324, 166 NE 129; People v. Gardner, 4 Ill2d 232, 122 NE2d 578.) At the same time, however, the instruction has been held not to be improper where the jury is further instructed, as it was in this case, that the defendant is entitled to acquittal if the evidence as to alibi, when considered with all the other evidence, creates in the minds of the jurors a reasonable doubt of the defendant’s guilt. (People v. Gasior, 359 Ill 517, 195 NE 10.) Defendant’s contentions here ignore the second alibi instruction and are without merit.

The evidence of defendant’s guilt was overwhelming and, from a careful examination of the record, we are convinced that he had a fair trial free from prejudicial error. Accordingly, the judgment of the Circuit Court of Will County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


source: Caselaw Access Project

author: GOLDENHERSH, J.

license: Public Domain

text:
    Ernest Sabo and Fred J. Allen, Plaintiffs-Appellees, v. T. W. Moore Feed & Grain Company, Berthold C. Humphreys, Jr., and Medford M. Cox, Defendants-Appellants.
    Gen. No. 67-50.
    Fifth District.
    July 26, 1968.

      Pope and Driemeyer, of East St. Louis (W. Thomas Coghill, Jr., of counsel), and Wagner, Conner, Ferguson, Bertrand and Baker, of East St. Louis (Bernard H. Bertrand, of counsel), for appellants.
    C. E. Heiligenstein, of Belleville, for appellees.
   GOLDENHERSH, J.

Defendants, T. W. Moore Feed & Grain Company, hereafter called Moore, Berthold C. Humphreys, Jr., hereafter called Humphreys, and Medford M. Cox, hereafter called Cox, appeal from judgments entered upon jury verdicts in favor of plaintiffs, Ernest Sabo, hereafter called Sabo, and Fred J. Allen, hereafter called Allen, in plaintiffs’ actions for personal injuries.

The complaint, containing one count for Sabo and one for Allen, alleges that by reason of the negligence of the defendants, an automobile driven by Cox, and a truck owned by Moore and driven by Humphreys, collided; as the result of the collision cattle being transported in the truck were released; shortly thereafter one of the cattle ran into the automobile owned and driven by Sabo, in which Allen was a passenger.

The evidence shows that at approximately 1:00 a. m. on August 27, 1965, Humphreys was driving Moore’s tractor-trailer north on Route 159. The trailer contained 52 white-faced Hereford steers. Humphreys testified that he was traveling at a speed of 50 miles per hour with his headlights on bright, when he saw the southbound Cox automobile, in its proper lane, approximately 500 yards distant, with its lights on bright. He immediately dimmed his lights; when the vehicles were approximately 450 yards apart he flashed his lights up to bright, flashed them on bright and dim several more times, and when the vehicles were 1,000 feet apart he flashed them on dim. At this point, the Cox vehicle dimmed its lights and when on dim, only one headlight was lighted. When the vehicles were approximately 400 to 500 feet apart, the Cox automobile went off the road. The automobile returned to the pavement and went off the road a second time. Humphreys could not state the distance between the two vehicles at that time. He immediately grabbed the trailer brake, the Cox automobile came back onto the pavement into the truck’s lane of travel and collided with the right front wheel of the tractor. After the impact the truck jackknifed, Humphreys lost control, the truck went across the highway and turned over on its side on the west side of the road. Humphreys got out of the cab, and almost immediately thereafter the tractor caught fire.

The cattle trailer was a “double-decker,” with gates which divided each deck into three sections. The gates were secured by chains, and in order to release the cattle it was necessary to open the doors of the trailer, and open the gates from the inside. After the collision the doors at the rear of the trailer were in place, and closed.

Humphreys had suffered a cut on the head, and after about 5 minutes, left the scene to go to the hospital. Several people had gathered at the scene, he told several bystanders that the cattle were not to be released regardless of what happened, and rather than release them, they were to be permitted to burn to death.

Cox testified that he was driving south on Route 159 at a speed of 50 to 55 miles per hour. He saw the truck for the first time when the vehicles were 200 to 300 feet apart, and at that time did not notice anything in particular with reference to the truck’s headlights. The truck’s lights were on bright. Cox flashed his headlights for the truck, the truck’s lights blinded Cox, and he ran off on the right-hand shoulder. At no time before the collision did he apply his brakes. He stated that the collision occurred in his lane of travel. The record shows that he was cross-examined extensively with respect to discrepancies between his testimony at the trial and his discovery deposition.

David Neff, driving an automobile south on 159, had followed the Cox car for approximately two miles before the collision. He saw the Cox automobile swerve off the road, and thought it did so twice. He saw the truck’s headlights and did not think they were blinding. He did not see the truck on Cox’s side of the road at any time before it jackknifed.

The collision between the Moore truck and the Cox automobile occurred on Route 159, approximately one-quarter mile north of its intersection with Route 156.

James B. Odie, an Illinois State Trooper, was called to the scene and arrived there at approximately 1:15 a. m. The tractor had been on fire, and he learned that the fire had been extinguished by members of the Hecker Volunteer Fire Department. Neither Cox nor Humphreys were at the scene when he arrived. Odie had seen a number of white-faced cattle approximately one-quarter mile north of the scene, and saw several more on the west side of the road near the overturned trailer. There were two or three cattle still in the trailer.

Bryan Rausch, a passenger in Neff’s car, testified that he and Neff stopped at the scene, gave Humphreys some handkerchiefs because his head was bleeding, and left the scene to obtain help. At that time the cattle were in the trailer, but when they returned from a truck stop a quarter mile distant, the cattle had been released.

Several people who were in the restaurant at the truck stop testified that they went to the scene of the collision, and saw no cattle running at large. Two of these witnesses stated the trailer doors were closed. There was some general conversation about releasing the cattle and someone, not identified, released them.

One of the volunteer firemen testified that when he arrived at the scene, the cattle had not been released. He and the other firemen attempted to extinguish the flames, but ran out of water. They returned to Hecker, and when he came back to the scene approximately 40 minutes later, the steers had been released.

Arthur Budde testified that he was one-quarter mile south of the scene when he heard a crash, and saw flames. When he arrived at the scene, Humphreys was at the rear of the trailer. He observed that the trailer doors were closed. He drove Humphreys to the hospital at Red Bud, and when they arrived there he asked Humphreys whether he should release the cattle. Humphreys replied “Not unless you want to take the responsibility for it— just leave them in there.”

At approximately 1:40 a. m. on August 27, 1965, Sabo was driving his Renault automobile north on Route 159. Allen was riding in the front seat and Sabo’s son, Michael, was riding in the back seat. Both Allen and Michael were asleep. He had been driving at approximately 65 miles per hour and as he approached the intersection of Routes 159 and 156, he decelerated to approximately 50 to 55 miles per hour. He dimmed his lights for an oncoming car, and when he was approximately one-quarter mile south of the intersection of the highways, he saw a white-faced steer in his lane of travel. It was about 50 feet ahead of him when he first saw it. He applied his brakes, but collided with the steer. He was knocked unconscious, and learned later that after striking the steer, his car had collided with an oncoming automobile.

Verlyn Smith, an Illinois State Trooper, called to the scene, found a dead steer near the point where he found Sabo’s car and the automobile with which it had collided.

Both defendants contend that the negligence which caused the collision cannot be held to be the proximate cause of plaintiffs’ injuries. They argue that the act of the person or persons who opened the trailer doors and released the cattle was such an independent intervening act as to supersede defendants’ negligence as the proximate cause of plaintiffs’ injuries. They argue further that the force set in motion by defendants had spent itself, and could not have been the cause of the subsequent collision which occurred one-half mile away, and forty minutes later. They contend that the first incident was at an end, the cattle were not released from the trailer until approximately one-half hour after the collision, and except for the intervention of the person or persons who released them, the collision in which plaintiffs were injured could not have occurred. They also contend that they had no control over the person or persons who opened the doors of the trailer and released the cattle, and the collision, at most, created a condition, but was not the proximate cause of plaintiffs’ injuries.

Counsel have cited and argued many authorities in support of their contentions with respect to proximate cause, independent intervening cause, and foreseeability. The statement of the governing rule presents no serious problem. In Neering v. Illinois Cent. R. Co., 383 Ill 366, at page 380, 50 NE2d 497, the Supreme Court said “What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. (Illinois Central Railroad Co. v. Oswald, 338 Ill 270; Hartnett v. Boston Store of Chicago, 265 Ill 331.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Illinois Central Railroad Co. v. Oswald, 338 Ill 270; Pullman Palace Car Co. v. Laack, 143 Ill 242.) The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. (Wintersteen v. National Cooperage and Woodenware Co., 361 Ill 95; Sycamore Preserve Works v. Chicago and Northwestern Railroad Co., 366 Ill 11.) What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence, Phillabaum v. Lake Erie and Western Railroad, 315 Ill 131.

“The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable notwithstanding the intervening cause. The intervening act of a third person does not necessarily relieve the author of an earlier negligent or wrongful act from responsibility when the intervening cause of an injury is of such nature as could reasonably have been anticipated, in which case the earlier negligent act, if it contributed to the injuries, may be regarded as the proximate cause. Garibaldi & Cuneo v. O’Connor, 210 Ill 284; Armour v. Golkowska, 202 Ill 144.”

In Phillabaum v. Lake Erie & W. R. Co., 315 Ill 131, at page 135, 145 NE 806, the Supreme Court said: “What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all attending circumstances. (Citing cases.) It can only arise as a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them.”

In Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, at page 510, 229 NE2d 504, the Supreme Court said: “We are not completely certain that the rule heretofore used in this State in determining when questions of negligence and contributory negligence become questions of law, i. e., only when all reasonable men would agree that due care had or had not been exercised, is the most workable in practical application. Our dissatisfaction stems from the fact that there is at least a surface incongruity in a trial judge saying all reasonable men agree that the proof established the presence or absence of due care when 12 jurors have just reached a contrary conclusion. And it seems even more incongruous for reviewing courts to so state when the trial judge and jury reached the opposite result, when the trial and reviewing courts disagree or the members of a reviewing court disagree among themselves that such is the case. . . . Rather, we believe the rule is best which in some form finds favor in other States heretofore indicated and which has, in part, been heretofore recognized in this State. In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

It appears to us that in determining when the question of proximate cause is one of law, rather than fact, the rule of Phillabaum has been modified by Pedrick.

Despite the apparent simplicity of the rule as stated by the Supreme Court, its application to factual situations has presented complex and serious problems. Probably no other aspect of the law of torts has been the subject of so much discussion and comment. (See Harper and James, The Law of Torts, (1956) Chapter 20; 155 ALR 157; 100 ALR2d 944, and the texts, treatises and annotations cited.) We find ourselves in agreement with the courts whose statements are hereafter quoted.

In Anderson v. Jones, 66 Ill App2d 407, 213 NE2d 627, the Appellate Court reiterated the rule, then at page 411 said: “The almost universal acceptability of these principles has not deterred their application with varying and seemingly contradictory results. We will not be so temerarious as to attempt a reconciliation of the uncounted and countless cases. In the last analysis, each case is bottomed on its own set of facts, its factual twin is seldom if ever, available as an infallible guide and hence the facts of the particular ease determine whether a question of fact or a question of law is presented.”

Under similar circumstances, Mr. Justice Manning of the Supreme Court of New South Wales, in Overseas Tankship, Ltd. v. Morts Dock & Engineering Co., Ltd. (see 100 ALR2d 932), said “To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to apply the decision In re Polemis with any degree of confidence to a particular set of facts would be a grave understatement. I can only express the hope that, if not in this case, then in some other case in the near future, the subject will be pronounced upon by the House of Lords or the Privy Council in terms which, even if beyond my capacity fully to understand, will facilitate for those placed as I am, its everyday application to current problems.”

There can be no question that the defendants, all of whom the jury found to be negligent, should reasonably have foreseen that the collision of their vehicles might cause injury to someone. It is true that their situations were somewhat different — Moore and Humphreys knew their cargo was cattle, while Cox, prior to the collision did not — and Cox argues that while the rule of foreseeability might possibly apply to the other defendants, it is not applicable to him.

In our opinion, the test is not quite so subjective or narrow as Cox contends. That a vehicle with which his automobile collided might be loaded with livestock is not so bizarre a situation as to remove it from the scope of what is reasonably foreseeable. It is reasonably foreseeable that, in the event of damage to the vehicle, the livestock might in some manner be released. The burning of one or more vehicles involved in a collision is not so infrequent or unusual as to be unforeseeable. We conclude, therefore, that it was a question of fact for the jury as to whether the defendants ought to have foreseen that the cattle would be released as the result of the collision, and being so released, might cause injury to others. That they might not have foreseen the precise manner in which the release of the cattle was effected is not significant, and it was reasonably foreseeable that they might be released by the action of a person or persons who sought to rescue them from the burning vehicle.

We have considered defendants’ contention that the force set in motion by their negligence had spent itself, and the collision, at most, created a condition but was not the proximate cause of plaintiffs’ injuries. We see nothing to be gained by a discussion of the cases upon which these arguments are based other than to state that the factual situations are so dissimilar that we do not find them controlling as precedents. In our opinion, the trial court correctly held the issue to be one of fact and did not err in submitting it to the jury.

Moore and Humphreys contend that all of the evidence when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors these defendants, that no verdict against them could ever stand. They argue that the only evidence of any negligence on their part is the testimony of Cox, that he was so thoroughly impeached by his prior testimony under oath as to be unworthy of belief, and under Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, the judgment against them must be reversed. Alternatively, they argue that the verdict against them is against the manifest weight of the evidence, and if the judgment is not reversed outright, a new trial must be granted.

It is true that the testimony of Cox with respect to what occurred immediately prior to and at the time of the collision was impeached in many particulars, and much of it is contrary to his discovery deposition. However, in Guthrie v. Van Hyfte, 36 Ill2d 252, at page 258, 222 NE2d 492, the Supreme Court said, “The fact that a witness, be he a party or otherwise, has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies. (Citing cases.) Defendant argues that the contradictory statements here were those of plaintiff, himself, and cites numerous law review articles, textwriters and decisions to the effect that such statements constitute substantive evidence against him of the facts stated. Such is, of course, the rule, and proof of such statements was here admitted. It then became the duty of the trier of fact — the jury — to evaluate the sworn testimony, the prior inconsistent statements and the explanations thereof, giving to the various witnesses such credence as the jurors determined proper. (Citing cases.)”

In Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28, at page 63, this court said: “A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Romines v. Illinois Motor Freight, Inc., 21 Ill App 2d 380, 158 NE2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. Ritter v. Hatteberg, 14 Ill App2d 548,145 NE2d 119 (1957). Manifest means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705 (1947).”

Upon reviewing the record in the light of the relevant authorities, we hold that the trial court properly refused to direct a verdict for these defendants, and the verdict is not against the manifest weight of the evidence.

Moore and Humphreys contend that statements made in the closing argument by plaintiff’s counsel constitute a judicial admission that they were not liable. Plaintiff’s counsel stated that he was particularly impressed with Humphreys’ truthfulness, but Cox had consistently lied; that he could not, in good conscience, state that he felt that Humphreys was at fault, or that the truck, prior to the collision, had been on the wrong side of the road.

Unless the statements of counsel constitute judicial admissions, they would not serve to relieve defendants of liability. In Rosbottom v. Hensley, 61 Ill App 2d 198, at page 215, 209 NE2d 655, the Appellate Court said: "Judicial admissions must be distinguished from evidential admissions in that the former are binding and are considered to be incontrovertible. They include pleadings in the case, admissions in open court, stipulations, and admissions made pursuant to requests to admit. Cleary Handbook of Illinois Evidence, 1963, secs 5.1 and 17.12. In the dictionary denotation, a judicial admission is a formal act of the party or his attorney in court, dispensing with proof of a fact claimed to be true and is used as a substitute for legal evidence at the trial. Blacks Law Dictionary, 1944.” In our opinion the statements made by counsel were not judicial admissions and do not exculpate the defendants. We have examined the authorities cited by defendants (Nowak v. Schrimpf, 44 Ill App2d 309, 313, 194 NE2d 547 (1963); People v. Hilltop M. M. Co., 300 Ill 564, 571, 133 NE 303 (1921); Deffler v. Loudenback, 233 Ill App 240 (1924); Kirchheimer v. Barrett, 125 Ill App 56 (1906); and Parker v. Louisville & N. R. Co., 230 Ill App 259 (1923)) and find them so clearly distinguishable as to require no further discussion.

Moore and Humphreys contend that certain remarks of counsel for Cox, made during final argument, were so prejudicial as to deprive them of a fair trial.

The record shows that counsel for Moore and Humphreys argued before counsel for Cox. During Cox’s argument two objections were made, one by plaintiffs’ counsel and one by counsel for Moore and Humphreys. Both objections were overruled by the trial court. In final argument, plaintiffs’ counsel answered those portions of Cox’s argument to which objections had been made.

Nothing is to be gained by quoting here the statements of which Moore and Humphreys complain, and it suffices to say that they might be categorized as attacks on opposing counsel. That an occurrence of this type is not without precedent is evidenced by the length of the annotation found at 96 ALR2d 9.

Each of the arguments in this case contains statements which should not have been made. In considering a similar situation, this court, in Wells v. Gulf, M. & O. R Co., 82 Ill App2d 30, 226 NE2d 662, said at page 34: “The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R Co. v. Cotton, 140 Ill 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill 322,163 NE 17.”

In reviewing the arguments of counsel in the light of the above quoted rule, we cannot say that in refusing to grant Moore and Humphreys a new trial, the trial court abused its discretion.

For the reasons set forth, the judgments of the Circuit Court of St. Clair County are affirmed.

Judgments affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MORAN, J.

text:
    People of the State of Illinois, Appellee, v. Robert V. Cole, Defendant-Appellant.
    Gen. No. 67-77.
    Fifth District.
    July 29, 1968.
    Appeal from the Circuit Court of Saline County, First Judicial Circuit; the Hon. HARRY L. McCABE and the Hon. JACK C. MORRIS, Judges, presiding.
    Harris, Holbrook & Lambert, of Marion, for appellant.
    Archie Bob Henderson, Assistant State’s Attorney of Saline County, of Harrisburg, for appellee.
   MORAN, J.

Defendant appeals from a jury verdict finding him guilty of resisting a peace officer (§ 31-1, c 38, Ill Rev Stats 1965) for which a judgment and sentence of one year in the Illinois State Penal Farm and a fine of Five Hundred Dollars ($500) and costs were entered.

A complaint for resisting arrest was filed with the State’s Attorney of Saline County in February of 1967 against the defendant by a Harrisburg City Policeman. Complainant alleged that he arrested defendant at the Amvets Club on the afternoon of February 10, 1967, for intoxication after receiving a call for aid from the proprietors of the club. Defendant Cole was driven by the arresting officer to the police station where the car was parked at the rear of the station and both defendant and the officer alighted from the car from opposite sides. The two walked to the rear of the car whereupon defendant Cole struck and hit the officer in the face. After a struggle, complainant, with the help of a second peace officer, was able to subdue defendant and confine him in a jail cell.

On February 14, 1967, the complaint was filed and that same day defendant was arraigned and entered his plea of not guilty. A pretrial hearing was held on April 5, 1967, in the Circuit Court of Saline County at which the following discourse transpired:

COURT: “You are here for a pretrial not a trial, do you have an attorney?”

A. “No I am not able to hire an attorney.”

COURT: “What does the State recommend on this case?”

Assistant State’s Attorney: “The State is going to recommend that he go to Vandalia.”

COURT: “Do you have a j ob ?”

A. “B&W Water Works.”

Q. “How much do you make ?”

A. “$2.53 an hour.”

COURT: “We can’t appoint an attorney for you making that much an hour.”

A. “I have been off on this leg for five weeks making $42 a week insurance. I might be off a couple more weeks. At this time I have got to have an attorney. I can’t make it by myself. I went to-and he said I would have to have one hundred dollars ($100) and I don’t have one hundred dollars ($100). I tried to get an attorney. I am not working now, I can’t work with this leg. I make $2.53 an hour when I am working, I am making $42 a week now insurance. I may be off a couple more weeks. I hope to go back to work Monday, I have been off six weeks.”

COURT: “We can’t very well appoint an attorney for you and pay him out of the County’s funds if you are employed. You are not going to trial until May.”

Assistant State’s Attorney: “It will be in the first week in May. It will be set Tuesday, May 2, 1967, on the charge of Resisting a Peace Officer.”

A. “Will I get notice?”

COURT: “No this is your notice.”

Defendant Cole represented himself at the trial on May 2, 1967. He cross-examined the State’s two witnesses and testified in his own behalf in an attempt to interpose evidence of self-defense. The jury retired following final argument and returned with a verdict of guilty. The court heard evidence in aggravation and mitigation of the sentence and subsequently imposed the maximum penalty of one-year confinement in the Illinois State Penal Farm, plus a fine of Five Hundred Dollars ($500) and costs. This court considered and granted defendant’s petition for leave to appeal and for appointment of counsel.

Among other contentions, appellant argues the trial court erred at the pretrial hearing on April 5, 1967 in failing to find that defendant was indigent and thereby appoint counsel to represent defendant. We agree. The issue of a criminal defendant’s right to counsel and constitutional right to appointment of counsel was directly before the United States Supreme Court in the 1962 case of Gideon v. Wainwright, 372 US 335, 9 L Ed2d 799, 83 S Ct 792. There the court remarked that “. . . reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 9 L Ed2d 805. The same court in Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, commented: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has no skill in the science of law. ... He requires the guiding hand of counsel at every step in the proceeding against him.” Id. at 77 L Ed 170. Section 113-3 (b), chapter 38, Ill Rev Stats 1965, provides that, “In all cases except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.”

Our own Supreme Court was not unmindful of the clear and forceful language employed in Gideon and Powell, when the court recently remarked, “The obvious purpose of our statute is to protect the rights of an accused from being impaired by the absence of legal counsel.” People v. Rebenstorf, 37 Ill2d 572, 575, 229 NE2d 483. This being the thrust of our law concerning appointment of counsel for the indigent, the issue of a court determination of indigency is a delicate matter and must be delicately decided, always with an eye toward protection of the rights of the accused from any possible impairment.

Formerly, our courts were required to provide counsel for a criminal defendant upon his request and his oath that he was unable to procure counsel (a condition that would have been fulfilled in the instant case). See chapter 38, paragraph 730, Ill Rev Stats 1961, and People v. Bassinger, 403 Ill 108, 85 NE2d 758; People v. Garrett, 43 Ill App2d 183, 193 NE2d 229. Having now entrusted the determination of indigency to the discretion of the courts, the law nonetheless requires a high degree of care and the punctilio of discretion.

In the instant case the court was advised that the State recommended confinement in the penal farm for defendant when it initiated its brief investigation into defendant’s ability to engage an attorney to defend him. The facts disclose the defendant was at one time employed at $2.53 an hour but for the five weeks prior to the pretrial hearing he was unemployed because of an injured leg and was drawing insurance of $42 per week. During this period defendant approached an attorney to acquire his services in defending the case but stated he did not have the $100 fee requested by the attorney to retain him. The prospect of defendant soon commencing employment was inconclusive.

Despite defendant’s specific request for appointment of counsel the court decided he was employed and refused his request, conducting no further inquiry as to the size of defendant’s family, the number of dependents he was supporting with the $42 a week insurance payment or the possibility of other income.

In sharp contrast to the actions of the court in the instant case, the trial court in People v. Rebenstorf, supra, chose to appoint counsel for a defendant charged with theft where defendant did not request appointed counsel, but where the court anticipated his inability to engage legal assistance. The court in that case advised defendant that such counsel would be withdrawn if plaintiff engaged an attorney. The Supreme Court lauded the action of the trial court and in finding that the entry of a not guilty plea for defendant at the arraignment where counsel was appointed was not error, the court said, “The action of the court here in appointing an attorney for the defendant served to insure the protection of his rights and the entry of the not guilty plea in no way disadvantaged him.” 37 Ill2d 572, 575, 229 NE2d 483. The Supreme Court later considered defendant’s assignment of error that he should have been represented by counsel at the hearing to determine whether he was indigent in respect to acquiring an attorney for appeal. In noting that a hearing to determine indigency is not an adversary proceeding but an inquiry by the court to determine the facts supporting or rejecting a finding that defendant is an indigent entitled to proceed with appointed counsel, the Supreme Court placed heavy emphasis upon the facts that defendant never requested appointment of counsel, had sufficient funds to retain an attorney ($1,200), and indicated his desire to retain private counsel in holding that the trial court did not abuse its discretion by denying appointed counsel to perfect defendant’s appeal.

The evidence in the present case clearly shows an abuse of discretion in the court’s denial of appointed counsel to defendant Cole where he requested such appointment, made a specific attempt to retain counsel, and had insufficient funds to engage the assistance of a lawyer. In effect, the court made a finding that defendant was not indigent on the issue of ability to acquire a defense attorney when the manifest weight of the evidence disclosed his inability to do so.

It should not be pretended that this error was a harmless one. With the aid of counsel it is at least arguable that defendant could have established a better case of self-defense, certain testimony in the record by the State’s witnesses could have been objected to, if not excluded, and even were the verdict to result similarly, defendant would have been afforded a better chance to mitigate the sentence.

By virtue of our holding in this case, further examination of error alleged by appellant is unnecessary.

For the foregoing reasons, the judgment of the Circuit Court of Saline County is reversed and this case is remanded for a new trial and for further proceedings not inconsistent with this opinion.

The court wishes to thank appointed counsel for an excellent presentation of the issues.

Reversed and remanded with directions.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Nadine Harpole, Defendant-Appellant.
    Gen. No. 67-85.
    Fifth District.
    July 31, 1968.

      Robert H. Rice, of East St. Louis, for appellant.
    John M. Karns, Jr., State’s Attorney of St. Clair County, of Belleville, for appellee.
   MORAN, J.

Defendant appeals from a sentence of not less than three (3) years nor more than ten years in the Illinois State Reformatory for Women following her plea of guilty to a three-count charge of theft, a violation of chapter 38, section 16-1, Ill Rev Stats 1965. Defendant claims the trial court erred in denying her probation and relies upon Illinois Supreme Court Rule 615 (b), which provides:

“On appeal the reviewing court may:

“(1) Reverse, affirm or modify the judgment or order from which the appeal is taken;

“ (2) Set aside, affirm or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;

“(3) Reduce the degree of the offense of which the appellant was convicted;

“(4) Reduce the punishment imposed by the trial court; or

“ (5) Order a new trial if justice so requires.”

The defendant, age 43 years, was indicted by the Grand Jury of St. Clair County, Illinois, on three counts charging theft of a (collective) sum of $4,986.04 from the Loren Mike Krause Construction Company, during a period between March 1 and July 15, 1965. On October 3, 1966, defendant, through retained counsel, entered a plea of guilty to the crime of theft and made application for probation. The State’s Attorney remarked on this occasion; “Your Honor, we have a recommendation at this time. The defendant through her attorney has indicated that she has the capacity and desire to make restitution for the monies which were taken, which were in excess of $4,000. It appears that this is feasible if probation would be considered by the Court; they have represented to me that this will take place inside a twenty-four month period, if she is permitted to remain free.”

The court then referred the case to the probation officer of the County for investigation, set a hearing on the matter for October 17, 1966, and commented to defendant; “Be here at that time with your attorney and if you can make restitution we will certainly look upon your probation with favor. . . .”

On October 17, 1966, defendant moved to set aside her plea of guilty which was promptly objected to by the State and denied by the Court. The Chief Adult Probation Officer submitted a written probation report to the court following an investigation of the defendant and her background. The substance of this report revealed that defendant was born and presently resides in East St. Louis, Illinois. Her mother and father were divorced when defendant was 14 years of age. She has five children, two of whom were minors, ages 11 and 7, at the instigation of these proceedings and living with defendant. A third minor child, age 12, was living with Mr. Harpole from whom defendant obtained a divorce in 1965. Defendant does not know where Mr. Harpole is residing and claims she has not received any support money for the two minor sons living with her. The report further showed that defendant held various positions of employment prior to her four-year period of work for the Loren Mike Krause Construction Company, but at the time of the report was unemployed, drawing unemployment compensation.

The officer noted that during the interview, defendant seemed to be vague regarding the proceedings concerning her since her attorney apparently had not clarified the possibilities of the investigation to her. The report concluded that in view of all the confusion and the difficulty in ascertaining the financial transactions involved in the case, the court would be best able to evaluate the facts pertaining to possible restitution. The Probation Department indicated it could not make a recommendation in the matter due to the unanswered problems connected with the investigation.

Following several continuances, on February 20, 1967, defendant’s application for probation was denied and she was sentenced to the Illinois State Reformatory for Women for a term of not less than four (4) years nor more than ten (10) years. Defendant, through her attorney, filed a petition for rehearing upon the application for probation. This hearing was held on March 6, 1967, at which time defendant presented a written statement to the court relative to her application for probation. In this statement defendant indicated her confusion about the recent transpirings and suggested she was not well advised concerning the probation hearing by her attorney. Defendant related her business relationship with the construction company since 1961, showing that she had been a trusted and valuable employee. The corporate president taught defendant “everything he could about the construction business,” and gradually increased her responsibilities to where she became a corporate officer by the end of her first year. The business, though corporate in form, was, according to defendant, operated relative to the personal needs and necessities of its president. Personal and corporate accounts were merged and salaries were paid pursuant to realized profits, the checks being charged to various business accounts. It was according to this method that defendant asserts certain checks came into her possession and others were appropriated by her after the decease of the company president.

Finally, defendant indicated that when the attorney for the State recommended probation indicating that she had agreed to make restitution “of what sounded to (her) like $4,000.00, (she) was dumbfounded at what (she) had pleaded guilty to.” Defendant then attempted to withdraw her plea of guilty, and failing this, attempted to make restitution. She tried to reconcile the amounts charged as stolen in the indictment with “the real situation,” but met with no cooperation on the part of the complainants. Defendant stated further that after her offer of restitution was refused, a civil suit for $10,000 was filed against her.

At the hearing on March 6, 1967, several letters from interested members of the community were received commending the moral character of the defendant and recommending probation. A plea was then made in open court for the defendant by a caseworker for the Department of Public Aid. The caseworker suggested that if defendant were imprisoned, it would be necessary to place her two minor boys in foster homes, whereas her work background has been excellent, her potential has been good and if given probation she could make a home for her family and meet the family’s expenses.

Against this background, the court imposed a new sentence upon defendant of not less than three years nor more than ten years in the Illinois State Reformatory for Women.

In People v. Evrard, 65 Ill App2d 118, 212 NE2d 305, we held that an order granting probation was reviewable. It follows that an order denying probation and imposing punishment is also reviewable.

The purpose of modern-day penology is the rehabilitation of the offender. That sentence which has the greatest potential of restoring the offender to a useful and productive place in society while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses is the one which should be imposed. See People v. Carroll, 76 Ill App2d 9, 221 NE2d 528; People v. Brown, 60 Ill App2d 447, 208 NE2d 629.

This is a first offense and one which, though involving moral turpitude, nevertheless is devoid of malice or what some would consider the “evil mind.” Consistent with the testimony and reports in the record of this case, defendant was initially considered to be a prime candidate for probation. The State’s Attorney recommended probation for defendant upon defendant’s agreement to make restitution of the stolen monies within a two-year period. Numerous letters were sent to the court from the clergy, friends and business associates of defendant, all of whom recommended probation after attesting to the good character of defendant. A spokesman for the Department of Public Aid represented that in the Department’s opinion justice would be best served by allowing defendant to remain among society where she could earn a living and continue to support her minor children who would otherwise become wards of the County. The Probation Department of St. Clair County, owing to certain unanswered problems, did not make a recommendation, but significantly they did not recommend against probation. Finally, the court remarked that if defendant could effect restitution, her application for probation would certainly be looked upon with favor.

Apparently, the only fatal aspect in the court’s disposition of defendant’s application for probation was the failure of defendant to achieve restitution. We fail to see how restitution can be the controlling factor under a theory of penology which emphasizes the rehabilitation of the offender. At best, restitution evidences a contrite and remorseful offender. Where, however, restitution becomes the ultimate criterion for imposition or relaxation of punishment, as we believe occurred in the instant case, a theory of penology is propounded which predicates punishment upon the inability of the offender to make monetary payment for his misconduct.

The mere fact that the trial court has a superior opportunity to make a sound determination concerning the punishment of a convicted defendant (see People v. Taylor, 33 Ill2d 417, 211 NE2d 673), does not imply that a particular sentence imposed is just and equitable. People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498. Section 117-1, chapter 38, Ill Rev Stats 1965, provides that:

“ (a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape, may be admitted to probation when it appears that

“(1) The defendant is not likely to commit another offense;

“(2) The public interest does not require that the defendant receive the penalty provided for the offense ; and

“(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense.”

Under the circumstances of the present case, it is our opinion that defendant was entitled to probation. Defendant acknowledged that her actions were wrong and it is highly unlikely that she is of such a criminal mind or will be exposed to such similar circumstances whereby another offense would be committed. Inasmuch as the record is replete with statements showing defendant is quite capable of holding a responsible job and supporting her family and also that defendant could easily reassume a respectable position in society, we feel that the rehabilitation of the defendant could have been effected without serving the penalty provided for the offense.

We have examined the State’s contention that this court lacks authority to grant probation pursuant to Supreme Court Rule 615(b), supra, and find it to be without merit. See People v. Evrard, supra. However, since defendant has already served more than the minimum term for theft, we do not now direct that she be granted probation.

There is no question but that under the powers granted to the reviewing court pursuant to Rule 615 (b), we have authority to reduce the sentence in a proper case. People v. Sanders, 75 Ill App2d 422, 220 NE2d 487; People v. Novack, 83 Ill App2d 391, 221 NE2d 780. Sentence should be reduced, however, only upon a showing of substantial reasons for so doing and it should not be changed because a reviewing court would have imposed a different penalty or for mere judicial clemency. People v. Stevens, 68 Ill App2d 265, 215 NE2d 147; People v. Johnson, 68 Ill App2d 275, 215 NE2d 144.

We feel substantial reasons have been demonstrated in' the present case which warrant a reduction of sentence to a minimum of one year and a maximum of three years. This will make defendant eligible for parole and if she is released under the control of the parole authorities she will have an excellent opportunity to rehabilitate herself.

We therefore reduce the sentence in this case to a minimum of one year and a maximum of three years in the Illinois State Reformatory for Women.

Judgment modified, and affirmed as modified.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    James Richards, Jr., et al., Plaintiffs-Appellees, v. The Village of Edinburg, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 67-97.
    Fifth District.
    August 5, 1968.

      Hershey and Bliss, of Taylorville (Richard G. Hershey and Frederick C. Hopper, of counsel), for appellant.
    Daniel G. Reese, of Taylorville, and Vernon H. Houchen, of Decatur, for appellees.
   GOLDENHERSH, J.

Defendant, Village of Edinburg, appeals from the judgment of the Circuit Court of Christian County entered upon a jury verdict in the amount of $3,000 in favor of the plaintiffs, James Richards, Jr., and Ellen Richards.

The evidence shows that in August of 1963 defendant commenced, and in August of 1964 completed, the construction of a sewage disposal plant.

Since 1959 plaintiffs have occupied a home situated approximately 123 feet from the tank in which the sewage is processed. The property was purchased under a contract for deed from Katie Schwartz, named as a party plaintiff, but dismissed from the suit prior to trial.

Witnesses called by plaintiffs testified that there were no offensive odors in the vicinity of plaintiffs’ home prior to the construction of the sewage plant, and since its construction there were frequently offensive odors there. They described the odors as “terrible,” “funny,” a “sewer smell,” and a “garbage smell.” Plaintiff Ellen Richards testified that the view from her kitchen window was of a large uncovered sewage tank “with filthy water constantly churning in it.”

Defendant called the engineer who designed the plant. He explained its operation and stated that the plant met all of the requirements of the State Sanitary Water Board. He testified that the processing tank had no top, a tank with no top is probably more efficient for a town the size of defendant, the water flowing from the plant was clean and clear with a low bacteria count, there are odors from the sewage in the plant but the chemicals used in the processing mask the odor. He described the resultant odor as an “earthy type,” similar to that of a freshly-plowed field.

A member of the Board of Trustees of the defendant village testified that the plant had been operated in the same manner since its installation and no changes were contemplated.

Two witnesses who lived respectively, one block, and one and one-half blocks from the sewage plant testified that there were no odors from the plant at their homes.

Defendant contends that the record does not show a permanent nuisance to exist, and the nuisance, if any, is abatable. It argues that the court erred in admitting evidence of the depreciation in market value of plaintiffs’ property because of the nuisance, contending that such measure of damage applies only to a permanent nuisance. Defendant also contends that the trial court erred in admitting the testimony of plaintiff, James Richards, Jr., and two witnesses as to the value of plaintiffs’ property. Defendant further contends that the trial court erred in refusing to direct a verdict for defendant because plaintiffs failed to prove that the operation of the sewage plant caused the offensive odors, or alternatively, that the verdict is against the manifest weight of the evidence and the trial court erred in denying defendant’s motion for a new trial.

In support of its contention that the trial court should have directed a verdict, defendant argues that plaintiff failed to prove that the operation of the sewer plant was in some manner defective. Negligence is not involved in an action for nuisance, Belmar Drive-In Theatre v. Illinois State Toll Highway Commission, 34 Ill 2d 544, 216 NE2d 788, and a nuisance may be created or maintained with the best or highest degree of care, Menolascino v. Superior Felt & Bedding Co., 313 Ill App 557, 40 NE2d 813.

Defendant also argues that the testimony of the engineer shows that the odors were effectively masked and there is no evidence that the chemicals were ever omitted. It also argues that there is no evidence that the odors described as “funny,” “terrible,” and a “sewer smell” are necessarily objectionable to the extent of creating a nuisance. As previously noted negligence is not an element of the cause of action, and the latter contention is fully disposed of in Belmar Drive-In Theatre v. Illinois State Toll Highway Commission (supra), wherein at page 547, the Supreme Court said, “So far as injury to the person is concerned, it is held that in deciding whether a particular annoyance is sufficient to constitute a nuisance the criterion is ‘its effect upon an ordinarily reasonable man, — that is, a normal person of ordinary habits and sensibilities, . . .’”

Defendant contends further that the evidence fails to show the odors complained of came from defendant’s plant. The testimony shows there were no such odors prior to the erection of the plant and their presence since that time. On all these matters the issue was one of fact, the evidence is sufficient to support the verdict, and it is not against the manifest weight of the evidence.

Relying upon Dierks v. Highway Com’rs of Addison Tp., 142 Ill 197, 31 NE 496; Fink v. Board of Trustees of Southern Illinois University, 71 Ill App2d 276, 218 NE2d 240; and Iliff v. School Directors, 45 Ill App 419, defendant argues the nuisance is shown to be abatable and the court erred in admitting evidence of the depreciation in the market value of the property. An examination of these cases shows them to be clearly distinguishable. In Dierks plaintiff sought to enjoin the transportation of sewage through an open ditch across plaintiff’s lands. Further, it is clear from the language appearing at page 210 of the opinion that plaintiff could recover money damages to the extent that the construction of the ditch impaired the value of her farm.

In Fink it is clearly shown that there was an alternative method available which would handle the effluent at a lower operating cost.

In Iliff the creation of the nuisance depended entirely on how the privy was kept, and if kept properly, there was no problem.

There is no question that defendant had the right to erect and maintain the sewage plant, and the nuisance arises not from its negligent or defective operation, but from a manner of operation which defendant contends is normal and safe, and which it intends to continue. Upon these facts the nuisance is a permanent one. Strange v. Cleveland, C., C. & St. L. Ry. Co., 245 Ill 246, 91 NE 1036; Chicago North Shore St. Ry. Co. v. Payne, 192 Ill 239, 61 NE 467. Although counsel have not cited nor has this court found any Illinois authorities involving sewage plants, there are a number of cases collected and discussed in an annotation appearing at 40 ALR2d 1177. Based upon these cases the rule is correctly stated at page 1200, as follows: “A temporary nuisance is one which is abatable, while a permanent nuisance is one which, despite lack of negligence in the construction or operation of the plant, may be expected to continue. To be permanent, it would seem necessary that it appear that there exists a legal right to maintain the sewage disposal plant although its operation must necessarily result in a nuisance.” This is in accord with the cases above cited and the trial court applied the correct measure of damages, City of Centralia v. Wright, 156 Ill 561, 41 NE 217.

Defendant contends that the trial court erred in permitting Ray High to testify as to the depreciation in the value of plaintiffs’ property caused by the nuisance. The record shows that the witness had been making real estate appraisals for six years and was familiar with values of real estate situated in the defendant village. He testified that he examined the property in May of 1966, but not prior to August of 1964. Defendant argues that because he had not seen the property prior to the erection of the sewage plant he was not qualified to express an opinion as to its value at that time.

It is the .rule in Illinois that an expert may base his opinion on personal observation, a hypothetical presentation, or a combination of both. Sherman v. City of Springfield, 77 Ill App2d 195, 222 NE2d 62. This witness was qualified to express an opinion as to the value of the real estate prior to August 1964, and the fact that he had not seen it prior to that time affects the weight, not the admissibility of his testimony.

Defendant argues that the court erred in admitting the testimony of Charles William Hager because he failed to consider sufficient elements to support his opinion as to the value of the property. Between the direct and cross-examinations the necessary elements are included and if any are lacking they affect the weight, not the admissibility of the evidence.

Defendant argues that the court erred in admitting the testimony of plaintiff James Richards, Jr. as to the value of the property before and after the installation of the plant. In Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, at page 20, 66 NE2d 873, the Supreme Court said, “The rule adopted in this State is that anyone who is acquainted with the property and has knowledge of values, either in the sale or ownership of property nearby, is competent to testify. The question of the degree of his experience is one of weight and not of competency of his testimony.” Under this rule, the court properly admitted the testimony.

We have examined Mauvaisterre Drainage & Levee Dist. v. Wabash Ry. Co., 299 Ill 299, 132 NE 559, City of Elmhurst v. Rohmeyer, 297 Ill 430, 130 NE 761, Buis v. Peabody Coal Co., 41 Ill App2d 317, 190 NE2d 507, and City of Chicago v. Giedraitis, 14 Ill2d 45, 150 NE2d 577, cited by defendant, and find them so clearly distinguishable on the facts as to require no further discussion.

The only grounds upon which defendant objected to the testimony of High, Hager and Richards are those enumerated in the foregoing discussion. Plaintiffs contend that defendant, in failing to object to the testimony on the ground that the nuisance was shown to be abatable tried the case on the theory that it was permanent. Plaintiffs argue that having tried the case on that theory, defendant, by the contentions here presented, seeks to change its theory on appeal.

In view of our decision of the other issues presented, we do not reach this question.

We find no reversible error and the judgment of the Circuit Court of Christian County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: EBERSPACHER, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James A. Hyde, Defendant-Appellant.
    Gen. No. 67-105.
    Fifth District.
    July 31, 1968.

      Allen D. Churchill, of East St. Louis, for appellant.
    John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville (Charles H. Stegmeyer, Assistant State’s Attorney, of counsel), for appellee.
   EBERSPACHER, P. J.

The defendant, James A. Hyde, was jointly indicted with Laverne Lumpkins by the Grand Jury of St. Clair County for the offenses of Theft of Property in Excess of $150 in value and Robbery. The first count of the indictment alleged theft of an automobile and the second count alleged robbery of a billfold, cash, a watch and an automobile.

The defendants were tried before a jury. The second count of the indictment charging robbery had been dismissed at the close of the evidence and the jury returned a verdict of guilty as to both defendants on the theft count and the court entered a judgment on the verdict. The defendant, James A. Hyde, has appealed from that judgment.

From the evidence it appears that the complaining witness, Donald Trowbridge, exited a tavern in East St. Louis, Illinois, at approximately 1:00 a. m. on September, 11, 1966. As he left the tavern and approached his automobile, a 1966 green Dodge Charger, he observed two negro men approaching him, one of whom was about his size and the other “quite a bit bigger.” While looking for his keys that he had dropped to the ground, Trow-bridge last observed the two men at approximately 20 feet. This was the last thing Trowbridge remembers. He was struck on the head and knocked unconscious. Upon regaining consciousness, Trowbridge notified the East St. Louis police about the incident. However, due to the insufficiency of the light and the distance of the observation, Trowbridge was unable to more particularly describe or identify the assailants.

Another witness, a service station attendant at Cahokia, Illinois, testified that at about 3:30 a. m. on the same morning three negro men, one tall and two short, entered his service station in a green 1966 Dodge Charger. He identified the defendant Hyde as riding in the back seat when the car entered the service station, and saw the defendant Hyde behind the wheel when he last saw them in the car. He further testified that the license plate contained the letters MM. The license number of the Trowbridge automobile was MM 3874.

The evidence further disclosed that at 10:30 a. m. the same day a policeman, Officer Mitchell of the St. Louis Police Dept, chased the green Dodge owned by Trowbridge in St. Louis, Missouri. The automobile was occupied by three negro men. The chase ended by the three men abandoning the car and running. The defendant Hyde was apprehended two blocks away while hiding in some weeds in a vacant lot, by two other St. Louis police officers. Officer Mitchell identified Hyde as one of the occupants of the car.

In behalf of the defendant, Catherine Peden, a friend of the defendant Hyde, testified that she was with him on September 11, 1966, from approximately 12:30 a. m. until 5:00 a. m. the same morning. During those hours she accompanied the defendant to the home of a male acquaintance. Then the three went to a tavern in East St. Louis where they danced, drank liquor, and watched a floor show which began about 3:00 a. m. Bessie Rayford, the girl friend of the defendant, accompanied them at the tavern. Bessie Rayford and Catherine Peden testified in support of the defendant’s alibi that they were in the East St. Louis tavern from 2:15 a. m. until 5:30 a. m.

The defendant further testified that on the morning of September 11 at about 9:00 a. m. he was hitchhiking at the foot of MacArthur Bridge which crosses the Mississippi River to go to his brother’s house in St. Louis, Missouri. He testified that a green sedan pulled up and offered him a ride and that the car contained two negro males whom he did not know. He testified that after arriving in St. Louis he became involved in a chase as described by Officer Mitchell. He also testified that when the driver stopped the automobile and the two other occupants began to run, he also began to run because he was presently on parole for the offense of burglary and that he didn’t want to get mixed up in the situation.

In support of his appeal the defendant alleges that the court erred in not granting a directed verdict of acquittal, erred in failing to grant a mistrial due to certain statements made by the State’s Attorney in his opening statement, erred in not permitting the defendant additional time to produce a witness, and erred in giving an instruction.

In support of the first allegation of error i. e., that the court erred in denying the defendant’s motion for a directed verdict at the close of the People’s evidence and again at the close of all the evidence, the defendant argues that although evidence of recent, exclusive, and unexplained possession of stolen goods after a theft is sufficient evidence to convict, that the alleged possession by the defendant was neither exclusive nor unexplained.

The defendant’s first argument in this regard is that the evidence of possession is not exclusive in view of the fact that three persons were in possession of the automobile on both of the occasions after the theft whereas only two unidentified parties apparently took the car in the first instance, and further argues possession is not necessarily shown by proof of mere association with a stolen article.

However, as well settled is the rule of recent, exclusive and unexplained possession, it is equally well settled that joint possession with others may be exclusive within the rule. People v. Strutynski, 367 Ill 551,12 NE2d 628 (1938); People v. Scholler, 385 Ill 93, 52 NE2d 130 (1944); People v. Wheeler, 5 Ill2d 474, 126 NE2d 228 (1955).

In the present case the jury was justified in finding that the defendant’s relationship to the stolen automobile was more than mere association with the article and was actually possession within the meaning of the rule. From the evidence of the service station attendant it was apparent that the three individuals were acting in concert. The testimony of the police officer who gave chase to the automobile in St. Louis, Mo., concerning the fleeing of the three individuals would further indicate more than mere association with the article. Only the testimony of the defendant shows a “mere association” with the stolen car but his testimony was apparently rejected by the jury.

The defendant next contends that the alibi evidence and explanation offered by the defendant and his witnesses nullified whatever inference of guilt might have been drawn from the evidence of possession. Accordingly, the defendant argues the court should have granted his motion for directed verdict at the close of all the evidence. However, as stated in the recent case of People v. Hanson (Ill App2d) (1968):

“When the courts speak of an explanation they do not mean that any explanation overcomes the inference of guilt. It must be a satisfactory explanation —one that the trier of fact finds reasonable and acceptable. This does not mean that a defendant must assume the burden of giving a satisfactory explanation for the possession of stolen property or be found guilty if he does not, for the burden is always upon the State to prove him guilty beyond a reasonable doubt. It does mean, however, that the inference arising from the recent and exclusive possession of stolen property casts the burden of going forward with the evidence upon the defendant. If no explanation is made the inference maintains and the weight to be given it is for the trier of fact to decide. If an explanation is made, the acceptance or rejection of the explanation is also for the trier of fact.”

In the case at hand the jury obviously rejected the explanation of the defendant. The question of whether the possession of stolen property is recent enough to raise a presumption of guilt is likewise a question for the jury. People v. Litberg, 413 Ill 132, 108 NE2d 468.

The defendant next alleges that the court erred in not granting the defendant’s motion for a mistrial due to an alleged statement made by the State’s Attorney in his opening statement to the effect that the defendant was guilty of committing an armed robbery.

The record before us does not contain the opening statements made by the parties. The only reference we find to the alleged remark is contained in the defendant’s oral motion for a mistrial. The basis for the motion as stated by the defendant’s attorney was due to “the mention of other crimes not within the scope of this indictment. . . .”

This Court will normally not consider on appeal matters which are not included in the record. However, even assuming that the remark was made we do not feel that it constituted reversible error. Though evidence of other offenses is generally inadmissible when independent of and disconnected from the crime for which the defendant is being tried there is a corollary of such rule that such evidence is admissible when it is relevant to the main issue, which serves to place the accused in proximity to the time and place, aids and establishes identity, and tends to prove design, nature or knowledge. People v. Lewis, 30 Ill2d 617, 198 NE2d 812 (1964); People v. Tronowski, 20 Ill2d 11, 169 NE2d 347 (1961).

In the present case the service station attendant identified the defendant as one of three persons that came to his service station at about 3:30 a. m. on the morning of the offense, in a 1966 green Dodge Charger. On cross-examination of the attendant, it was revealed that before the three departed the service station, the attendant was taken back into the storeroom of the station and tied up. At that time Hyde was in the driver’s seat. A police officer also testified without objection that at 3:21 a. m. he received a call from the attendant reporting an armed robbery.

However prejudicial the evidence may have been to the defendant, the evidence served to place the defendant in proximity to the time and place of the original offense and aided in the establishment of his identity.

The defendant next alleges that the court erred in refusing a continuance during the trial to the defendant. From the record it appears that the defendant attempted to subpoena a police officer during the trial and was not sure whether the witness had actually been served. The defendant requested and was granted a continuance of one hour and a half in order to secure the witness. When the witness then failed to appear, the court required the trial to continue.

The granting of a continuance during trial is purely a matter of discretion resting within the trial court, and its exercise will not be disturbed on review unless there is an abuse of that discretion. People v. Kees, 32 Ill2d 299, 205 NE2d 929 (1965). Under the facts of this case we cannot say the court abused its discretion.

The last allegation of error raised by the defendant is that the court erred in giving People’s Instruction Number 10; the instruction is in the language of the Statute (c 38, § 5-2 (c)). The instruction provided:

“The court instructs the jury that a person is legally accountable for the conduct of another when, either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other persons, in the planning or commission of the offense.”

The defendant raises no question as to the substance of the instruction but argues that the instruction is not supported by the evidence. The defendant’s argument as we understand it is that all of the evidence concerning the defendant pertains to his activity after the offense while the instruction concerns affirmative actions prior or during the commission of the offense.

As stated above, the evidence of recent exclusive and unexplained possession of stolen property gave rise to a presumption of guilt. Where the possession is joint, as here, the presumption is that all in possession are guilty of the theft. In other words, all are presumed guilty as principals of the theft. Under our Criminal Code certain affirmative conduct either prior to or during the commission of an offense results in the party being legally accountable as a principal of the offense. Previous distinction between accessories and principals has been replaced by these new provisions in the Code.

Theft, under the Criminal Code of 1961 (§ 16-1(a)) includes both obtaining and the exertion of unauthorized control over, property of the owner, and, either (1) intention to deprive the owner permanently of its use or benefit, or (2) knowingly using the property in such manner as to deprive the owner permanently of its use or benefit, or (3) use of the property knowing such use will deprive the owner permanently. Even though there is no testimony that this defendant took the automobile from the owner in the first instance, he was tried with Lump-kins, and the evidence of this defendant’s possession was not satisfactorily explained. That evidence was sufficient for the jury to conclude that there was a common design of attempting to deprive the owner of the use and benefit of his automobile permanently. The legal responsibility provided by the instruction extends to any act committed by such other person in furtherance of the common design. People v. Chavis, 79 Ill App2d 10, 223 NE2d 196; People v. Kolep, 29 Ill2d 116, 193 NE2d 753. The evidence raises the issue of whether this defendant was a participant in any part of the crime and even ¡slight evidence upon a given theory of the case will justify giving an instruction. People v. Matter, 371 Ill 333, 20 NE2d 600.

This Court is appreciative of the efforts of appointed counsel in capably preparing and presenting this appeal.

Finding no reversible error, we affirm the judgment of the Circuit Court of St. Clair County.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


text:
    The People of the State of Illinois, Appellee, v. Charles Billingsley, Defendant-Appellant.
    Gen. No. 67-138.
    Fifth District.
    August 13, 1968.
    James B. Moses of Smith, McCollum & Riggle, of Flora, for appellant.

      H. Carroll Bayler, State’s Attorney of Clay County, of Louisville, for appellee.
   EBERSPACHER, P. J.

This appeal has been brought by the defendant, Charles Billingsley, following his plea of guilty and imposition of sentence to an information charging him with the offense of Theft of Property less than $150 in value.

From the common-law record it appears that on October 18, 1967, the State’s Attorney of Clay County, Illinois, filed an information in the Circuit Court of Clay County charging the defendant and two codefendants with the offense of Theft. The value of the property was alleged to be less than $150. On the same date the defendant appeared in court, accompanied by counsel, for arraignment. There was no court reporter in attendance and accordingly, a transcript of the proceedings is unavailable. However, an entry of record by the Court indicates that the defendant was furnished with a copy of the information, that the defendant indicated a desire to enter a plea of guilty, the Court advised the defendant of his right to trial by jury and of the penalty prescribed for the offense by statute, that the defendant persisted in the plea of guilty, and that the Court accepted the plea and entered judgment thereon. The defendant also signed a written instrument wherein he entered a plea of guilty and waived trial by jury.

The docket entry of October 18, 1967, next recites that evidence was heard as to aggravation and mitigation and the cause continued until November 6, 1967, for sentencing. From the transcript of proceedings had on November 6, 1967, it appears that the defendant was sentenced to the Illinois State Farm for a period of six months. The defendant has sought to supplement the common-law record by filing in this Court three affidavits. The affiants are the defendant and his two brothers. The affidavits allege facts and circumstances prior to the arraignment.

In his effort to reverse the judgment of conviction the defendant has presented three issues for review. The first is that the defendant is in fact not guilty but entered a plea of guilty only because of certain representations made to the defendant and his brothers by the Court and State’s Attorney prior to the arraignment. This issue is based solely upon the affidavits filed by the defendant.

The Supreme Court Rules provide for no procedure by which an appellant may supplement the record by affidavit. Supreme Court Rule 323 (c) as made applicable to criminal appeals by Supreme Court Rule 612(c) provides for cases in which there is no verbatim transcript of the evidence or proceeding; however, in the instant case the matters alleged in the affidavits transpired prior to the filing of the information charging the defendant with the offense.

The defendant made no effort to withdraw his plea of guilty or otherwise present the issue to the trial court. When faced with a similar question, the Court in People v. Van Hyning, 72 Ill App2d 168, 219 NE2d 268 stated:

“. . . the necessity for judicial accommodation between the exercise of such power and the orderly administration of justice, as well as the welfare and safety of the public at large, indicates that the reviewing court should exercise judicial restraint in reversing the trial court for errors not brought to its attention by customary procedures. The basic reason for the general rule that issues, points or contentions, other than those going to the court’s jurisdiction of the subject matter, or that the indictment does not charge an offense, will not be considered on appeal unless presented in the trial court and properly preserved for review, is that the trial court should not be reversed upon a ground not submitted to it and upon which it did not, and was not asked, to decide. (Citing cases.) Consequently, reversals where the alleged errors were not brought to the attention of the trial court must be limited to errors or defects affecting substantial rights of the defendant — errors which in themselves preclude fundamental fairness in the trial. ...”

Under the circumstances of this case, particularly in view of the fact that the defendant was represented by counsel during the entire proceeding, we would not be warranted in reviewing the issue as presented.

The second issue presented by the defendant is that the judgment should be reversed since the record does not show that the defendant understandingly waived his right to trial by jury, that he understood the consequences of his plea of guilty or that the consequences of his plea were explained by the Court and understandingly persisted in by the defendant, and that the defendant was admonished or apprised of the limits of punishment he might receive.

We note that the defendant does not contend that the consequences of his plea and the maximum penalty which might be imposed by the Court were not explained to him, but that there is no verbatim record of the admonition. In effect the defendant argues that since there is no transcript the judgment must be reversed.

Defendant, on this point, relies upon the language of sections 113-4 (c) and 115-2 (a) (2) of the Code of Criminal Procedure and People v. Washington, 5 Ill2d 58, 124 NE2d 890 (1955), and People v. Ballheimer, 37 Ill2d 24, 224 NE2d 811 (1967). Section 113-4(c) provides:

“If the defendant pleads guilty such plea shall not be accepted until the court shall have fully explained to the defendant the consequences of such plea and the maximum penalty provided by law for the offense which may be imposed by the court. After such explanation if the defendant understandingly persists in his plea it shall be accepted by the court and recorded.”

Section 115-2 (a) (2) provides:

“Before or during trial a plea of guilty may be accepted when;
“(D • • •
“ (2) The Court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which might be imposed upon acceptance of such plea.”

We note that neither of these legislative enactments make any distinction between pleas to charges where the punishment may be imprisonment in the penitentiary and pleas to charges where the punishment may be otherwise. Both the cited cases involved the adequacy of the record where the charges were punishable by imprisonment in the penitentiary.

People v. Washington, supra, was based on inadequacy of compliance with Rule 27A, adopted in 1948, which provided in part that “The inquiries of the court, and the answers of the defendant to determine whether the accused understands his rights to be represented by counsel, and comprehends the nature of the crime with which he is charged, and the punishment thereof fixed by law, shall be recited in, and become a part of the common-law record in the case.” Rule 27A was applicable to cases in which the punishment may have been imprisonment in the penitentiary. In People v. Ballheimer, supra, the Court held statements by the trial court to defendant that “the court would have to sentence you in accordance with the statute” and that defendant “would be sentenced according to law,” were inadequate explanation of the consequences of a plea of guilty, in light of the provisions of the then applicable rule, 26 (3) (Ill Rev Stats 1963, c 110, § 101.26(3)) which applied to cases in which the punishment may have been imprisonment in the penitentiary.

Supreme Court Rule 401(b) became effective January 1, 1967, and is the former Rule 26(3) without change. It provides that in cases where the punishment may be imprisonment in the penitentiary the admonishment and inquiries by the Court and the answers of the accused shall be taken and transcribed and filed in the case. The committee comments for the rule state that in cases in which punishment is other than imprisonment in the penitentiary the proceedings on pleas of guilty are governed by sections 113-1 and 113-4 of the Code of Criminal Procedure of 1963.

From our examination of the record it is our opinion that the Court correctly adhered to sections 113-1 and 113-4. The defendant has cited no authority, by rule or otherwise, which requires a verbatim transcript in all criminal cases nor do we feel that it is within the province of this Court to so hold, in a case in which there is no showing of any disability of the defendant; where the record shows that he was at all critical times represented by an attorney of his choice, and the record shows no objection to proceeding without the proceedings being taken verbatim. The situation presented is clearly distinguishable from those situations in which,the defendant appears without counsel. (See People v. McKenzie, 89 Ill App2d 157, 231 NE2d 702; People v. McGrath, 85 Ill App2d 388, 229 NE2d 14.)

The third and last issue raised by the defendant is that the punishment imposed was too severe. The record recites that the Court heard evidence in mitigation and aggravation, however, that evidence was not transcribed. As the Court stated in People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (1965), in the absence of the information upon which the trial court imposed sentence a reviewing court cannot make a meaningful review. We do note that the defendant received a more severe sentence than his codefendants with nothing in the record to justify such a disparagement. Therefore, this cause must be remanded with direction to hear and receive evidence as required by section 1-7 (g) of the Criminal Code (c 38, § 1-7 (g), Ill Rev Stats 1967) and a transcription of that record made, and thereafter to impose proper punishment. See People v. Evrard, supra.

Affirmed and remanded with direction.

GOLDENHERSH and MORAN, JJ., concur.

       The penalty for which is provided by chapter 38, section 16-1, as being a fine of not to exceed $500, or imprisonment in a penal institution other than the penitentiary not to exceed one year, or both.