author: Mr. PRESIDING JUSTICE SCOTT Mr. JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE DEVINE, Defendant-Appellant.
    Third District
    No. 80-682
    Opinion filed October 15, 1981.

      HEIPLE, J., specially concurring.
    Robert Agostinelli and Michael Filipovic, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Willie Devine, was charged by indictment with two counts of deviate sexual assault and one count of indecent liberties with a child in violation of sections 11 — 3(a) and 11 — 4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 3(a), 11 — 4(a)(3)). Following a jury trial, he was convicted on one count of deviate sexual assault and of indecent liberties with a child. He was acquitted of the remaining count of deviate sexual assault. A sentence of 20 years’ imprisonment for deviate sexual assault and a concurrent term of 10 years’ imprisonment for indecent liberties with a child were imposed on the defendant.

The facts adduced at trial revealed the following sequence of events. Rodney Hatfill, the complainant, testified that he first met the defendant in July 1980, when Hatfill and a friend of his, 25-year-old Jimmy Dalton, went to the defendant’s apartment to play cards. Hatfill was 12 years old at the time.

Two black girls were present at the apartment with the defendant when Hatfill and Dalton arrived. Everyone played cards for about half an hour when two men arrived with a bottle of beer. Hatfill testified that he had a glass of beer and smoked some marijuana. The two men stayed about 20 minutes and then left.

Hatfill further testified that the two girls left the apartment to go shopping. Jimmy Dalton then left, saying he would return in 15 minutes. Hatfill and the defendant were left alone in the apartment.

The complainant was sitting on a couch in the kitchen when the defendant came over and started squeezing the youngster’s penis through his pants. Hatfill told the defendant to stop it. Devine then took Hatfill by the hand into the bedroom. Hatfill began to cry, and the defendant threatened to hit him with a claw hammer. The hammer, which had previously been in the living room, was retrieved by the defendant and placed in the bedroom.

Hatfill testified that the defendant told him to take off his pants. When he failed to do so, the defendant took them off, and Hatfill began to cry more. The defendant then raised the hammer, and Hatfill stopped crying. The defendant removed his shorts, made Hatfill lie on his stomach and inserted his penis into Hatfill’s anus. When Hatfill started screaming, the defendant got up, started to pick up his hammer, and then placed his penis in the complainant’s mouth. The complainant testified that he “acted like” the defendant had ejaculated in his mouth and then asked the defendant if he could wash out his mouth. The defendant said “Yes”, and the complainant went to the bathroom. The complainant testified that he observed the defendant wiping the “cum” off his penis and stomach with a brown towel.

According to his testimony, Hatfill “acted like” he had washed his mouth out. The defendant returned Hatfill’s pants to him and said, “Don’t never tell anybody.” The complainant unlocked the door and ran down the stairs. While running down the stairs he passed the two girls who had previously been in the apartment, but he did not say anything to them. Hatfill ran to Imogene Knott’s house, where his friend, Jimmy Dalton, lived. The police were called and arrived about five minutes later. Hatfill directed the police to Willie Devine’s apartment. The complainant was then taken to the hospital and later to the police station where he made a statement.

During cross-examination defense counsel confronted the witness with a number of inconsistent statements which he made to the police and the examining doctor. Hatfill denied making the inconsistent statements.

Jimmy Dalton appeared as the second witness for the State. His testimony of events preceding the attack by Devine substantially corroborates that of the complainant, Rodney Hatfill.

Officer Henry Minton testified that he met Rodney Hatfill, Imogene Knott and Jimmy Dalton at 6:50 p.m. on July 11, 1980, at the Knott residence. After speaking with Hatfill, Minton proceeded to 505 West Third Street, where he left Hatfill in his squad car and met some other police officers. The officers proceeded up to the second floor and knocked on the door. Willie Devine answered. Present in the apartment in addition to the defendant were two black females and a small child. Devine left with the officers. Hatfill was then transported to St. Francis Hospital.

Officer Larry Layman testified that on July 14,1980, he and Officer Minton returned to Devine’s apartment and served a search warrant which mentioned two items. The two items — a broken, silver-colored claw hammer and a brown towel — were recovered. The hammer was found in the kitchen behind a couch, and the towel was lying on the couch in the living room of the house. After a thorough search for other towels was made, no other brown towels were found in the apartment.

Layman related that he spoke to Devine on July 11,1980, and learned that the defendant was born on June 11, 1957, and was thus 23 years of age.

The final witness for the State was Dr. John Byler, who examined the complainant at St. Francis Hospital emergency room on July 11,1980. He performed a general examination, and a specific exam of Hatfill’s anal/ rectal area. The doctor testified that “[t]here were two or three small fissures which are small cracks in the anal/rectal mucosa at about 6 o’clock and the tone of the sphinctor [sic] was patchless, that is in appearance, it appeared to lack a normal tone.” The normal tone of a sphincter of a boy that age would generally be fairly tight. The loose and patchless sphincter and the fissures would be consistent with some type of penetration. The fissures seen on Hatfill’s anus would also be consistent with constipation or straining in going to the bathroom. The fissures were probably not more than 12 hours old. The doctor could not say for sure whether or not the fissures were caused by anal penetration. He related that the tone of the sphincter was consistent with penetration, but not constipation.

The doctor also noted that the complainant had very poor hygiene and was dirty. Both oral and rectal swabs were taken from the complainant for later testing. The doctor also noticed a brownish ring around the anus which he could not interpret as being either stool or blood.

Also testifying for the State were Mrs. Cynthia Galowski, an emergency room nurse, and Officers Larry Layman and Henry Minton. Their testimony will be recounted as needed to discuss the inconsistencies alleged by the defendant.

For the defense, Willie Devine testified that he lived at 505 West Third Street for about six months to a year. He lived there with his girlfriend and a two-year-old baby. Devine recalled being visited at his apartment by Jimmy Dalton and Rodney Hatfill on July 11, 1980, between 11:30 and 12:00. Dalton asked Devine where he could buy a bag of marijuana. Devine took Dalton’s money, purchased some marijuana from a man down the street and returned to the apartment.

Both Dalton and Hatfill appeared “pretty high” when they first came by the apartment. While at the apartment they played cards and drank beer. Devine testified that Hatfill drank four to seven beers and that he smoked some marijuana.

Devine further testified that he had not had an argument with Dalton, but that he thought Dalton was mad at him because he had given Dalton’s girlfriend a key to his apartment. When the girls left the apartment, they said they were not going to be gone for long, but Devine could not recall them saying how long they would be gone. After eating some pinto beans and cornbread, Dalton left the apartment and said he would be back in a couple of minutes.

Hatfill sat on the couch in the living room, and Devine began washing his dishes. The two girls then returned to the apartment. Devine was alone with Hatfill for 20 to 30 minutes. Devine testified that he did not talk with Hatfill about sex and did none of the things which he was accused of doing and did not force Hatfill to have sex with him.

On cross-examination, Devine testified that he had a hammer in his kitchen on the sink. He also testified that he thought Hatfill was 14 to 15 years old, and that Dorothy (Bertha) Smith, the woman who lived with him, had a key to his apartment.

Patricia Orr, a forensic scientist with a specialty in serology, testified that pursuant to a Peoria Police Department request, she tested the contents of defendant’s exhibit number 1, a “rape kit.” The kit contained the following items: (1) Rodney Hatfill’s pants, (2) rectal swab of Hatfill, (3) oral swab of Hatfill, (4) rectal smear (swab smeared on glass slide), (5) oral saliva, (6) liquid blood standard of Hatfill, (7) dried saliva standard of Hatfill. Orr performed a number of tests upon the oral and rectal smears and swabs and could not identify any seminal material on them.

Orr also examined defendant’s exhibit No. 3, the brown towel seized by the police from Devine’s apartment. She first examined it with an ultraviolet light which causes seminal material to glow. Orr also performed an acid phosphate test on the towel, but was unable to identify any seminal material on the towel.

Orr also examined Hatfill’s pants for the presence of seminal material or pubic hairs. She had in her possession known samples of the defendant’s pubic hair. Orr was unable to find seminal material or pubic hairs. Orr testified that she found no evidence on any of the items which would have indicated sexual contact between the defendant and Hatfill.

On cross-examination Ms. Orr testified that if the towel had been washed, seminal material could have been removed during washing.

On redirect examination Orr related that the towel in this case had a faint odor and a few crusty areas. She tested the towel in many areas and based on her scientific background and training concluded that the towel contained no seminal material.

Willie Devine was recalled to the stand, and the defense then rested. The first issue raised by the defendant on appeal is whether the evidence proved him guilty beyond a reasonable doubt. Specifically, he contends that there are several inconsistencies in the evidence, which, together with the scientific evidence presented by the defendant, negates his guilt. We disagree.

It is well established that a reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses, and criminal convictions are not subject to reversal unless the evidence is so improbable as to raise a reasonable doubt of the defendant’s guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) This is true even in those cases involving sex offenses where the reviewing court has a special duty to closely scrutinize the evidence. (People v. Muellner (1979), 70 Ill. App. 3d 671, 388 N.E.2d 851.) If the decision of the trier of fact is to convict, and that decision is based on credible and substantial evidence, it will not be set aside because of minor inconsistencies which the trier of fact resolved in favor of the State. People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017; People v. Sullivan (1977), 48 Ill. App. 3d 555, 362 N.E.2d 1313.

In the case at bar, each of the inconsistencies complained of was presented to the jury which resolved them against the defendant. We have no quarrel with the jury’s determinations.

The first alleged inconsistency involved the complainant Hatf ill’s testimony concerning a statement made by Jimmy Dalton. According to Hatfill, Dalton, upon leaving the defendant’s apartment, told Hatfill to stay there and that he would be back in 15 minutes. Dalton testified that he told Hatfill that he would be back, but that he did not say how long he would be gone. The defendant testified that Dalton said he would be back in a couple of minutes. As it relates to the question of the defendant’s guilt, this alleged inconsistency is a nonsequitur. The period of time after Dalton left the defendant’s apartment and before the attack occurred is inconsequential. The vital question is, given all of the testimony and evidence presented, whether reasonable men and women could find, beyond a reasonable doubt, that an attack occurred.

The second alleged inconsistency concerns the testimony of the complainant and of Officers Minton and Layman regarding how Hatfill got into the defendant’s bedroom. Specifically, the inconsistency arises from whether the defendant fondled the complainant on the kitchen couch and then led him into the bedroom by the hand or whether the defendant called Hatfill into the bedroom. This alleged inconsistency is understandable given the fact that the complainant was upset and crying when he spoke to the police officers following the attack. It is reasonable to assume that not every detail of the attack would be revealed by the victim under such circumstances, and that his trial testimony might differ to some degree.

The third alleged inconsistency concerns whether the defendant struck the complainant. A close examination of the record indicates, however, that no inconsistency exists in the challenged testimony of Hatfill and Officer Layman. What does appear is an indication that the defendant threatened to strike the complainant on several occasions, but that he never carried out his threats.

Two additional alleged inconsistencies concern whether the defendant ejaculated and whether semen was present on the brown towel offered into evidence. Because the question of whether the defendant ejaculated is irrelevant to the question of whether the crimes of deviate sexual assault and indecent liberties with a child occurred, we find these allegations by the defendant strained at best.

The defendant also contends that Hatfill’s story was contradicted by the scientific evidence presented. On the contrary, the testimony of Dr. Byler tends to corroborate the victim’s account of anal penetration. Furthermore, Hatfill’s prompt reporting of the crimes to the police adds corroborative weight to his testimony. For these reasons, we reject the guilt-beyond-a-reasonable-doubt issue raised by the defendant and decline to disturb the findings of the trier of fact whose responsibility it is to pass upon the credibility of the witnesses and the weight of the evidence. People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285.

The second issue raised by the defendant is whether the evidence was sufficient to establish that he was 17 years of age or older, as required for a conviction of indecent liberties with a child. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a)(3).) In his argument, the defendant correctly cites People v. Dalton (1981), 93 Ill. App. 3d 264, 417 N.E.2d 197, for the proposition that the corpus delecti, including proof of age where necessary, cannot be established by an extrajudicial verbal confession or admission alone. This proposition is correct, and if the only evidence of the defendant’s age in the case at bar was the testimony of Officer Layman that the defendant had given his age as 23 and his date of birth as June 11, 1957, he would have no alternative but to find the evidence offered insufficient. However, as the Dalton case further indicates, corroboration of the defendant’s extrajudicial statement concerning his age will satisfy the evidentiary requirements. That corroborative evidence need not be such as would independently establish age beyond a reasonable doubt but need only be sufficient to insure the veracity of the defendant’s out-of-court statement. People v. Dalton (1981), 93 Ill. App. 3d 264, 266, 417 N.E.2d 197, 199.

In People v. Lett (1978), 61 Ill. App. 3d 467, 378 N.E.2d 208, the defendant’s extrajudicial admission that he was over 17 years of age was deemed to be corroborated by the following evidence: testimony that he was a “man”; a witness’ description that the perpetrator was in his 20’s; the fact that the defendant had a valid driver’s license, wore a 1972 class ring, and had been in the Army for two years. In the case at bar, the following evidence regarding the defendant’s age emerged during trial: Officer Minton described the defendant as a “man” and as a “black male”; Officer Layman described the defendant as a “gentleman”; the defendant testified that he lived in a house with a 23-year-old girlfriend and her two-year-old child, and that he was employed full time as a painter for his landlord; the jury learned that the defendant had been incarcerated in the county jail since July 11, 1980, because he was unable to make bond; the defendant was impeached with a prior felony robbery conviction of May 9,1977. None of these factors is conclusive proof of the defendant’s age, but taken into consideration with the defendant’s extrajudicial statement, they provide adequate evidence of his age.

In addition, the defendant testified at trial, thus providing the members of the jury an opportunity to independently assess his age and thereby corroborate his statement to Officer Layman. This factor contrasts with People v. Lett (1978), 61 Ill. App. 3d 467, 378 N.E.2d 208, and People v. D’Angelo (1975), 30 Ill. App. 3d 86, 333 N.E.2d 525, in which the defendant did not testify, but sufficient corroborative evidence was still found.

The defendant’s final contention is that in sentencing him the trial court improperly considered that his prior probation for robbery was revoked for a subsequent rape. He bases his contention on the fact that he was never prosecuted criminally for the rape and thus the trial court did not have reliable evidence that a rape occurred.

The sentencing judge was presented with a copy of an order entered January 23, 1979, by Circuit Court Judge Stone in which Judge Stone found that the defendant was convicted of the offense of robbery on May 9, 1977, and was placed on probation for four years. Judge Stone also found that the defendant violated the terms of his probation in that on November 21, 1978, he committed the offenses of rape and unlawful restraint. Upon this basis, Judge Stone revoked the defendant’s probation and sentenced him to a three-year prison term on the original robbery conviction.

The defendant was called to the stand during the sentencing hearing for the instant offenses and was questioned about the earlier probation revocation. He testified that the rape charge was dismissed after he was sentenced for violating his probation. He also testified that the rape victim was his girlfriend. On cross-examination, the State elicited from the defendant the fact that his girlfriend jumped out of a second-story window to escape and that he was represented by counsel at the time of his contested probation revocation hearing.

Clearly there was sufficient evidence presented to support the conclusion that the defendant had committed the crime of rape and for the trial court to consider that information in sentencing the defendant for the instant offenses. Ordinary rules of evidence need not be followed during a sentencing hearing. (People v. Adkins (1968), 41 Ill. 2d 297, 242 N.E.2d 258.) As long as the evidence considered is competent and material, as is the record of the defendant’s probation revocation hearing in the case at bar, the sentencing court may search diligently for such evidence to be used as factors in aggravation or mitigation. People v. Williamson (1979), 69 Ill. App. 3d 1037, 388 N.E.2d 240.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is affirmed.

Affirmed.

BARRY, J., concurs.

Mr. JUSTICE HEIPLE,

specially concurring:

While I concur with the result reached by the majority, I do not concur with the rationale which cites People v. Dalton (1981), 93 Ill. App. 3d 264. Two of the members of this panel also participated in the Dalton decision. Dalton, in my view, was a gratuitous and unnecessary reversal of a convicted sex offender on the grounds that his age was not established. Yet, there was no dispute as to the defendant Dalton’s age. No dispute at all. He was of the requisite age.

Likewise, in this case, there is no dispute as to age. The crime here is indecent liberties. The law requires that the defendant be 17 years of age or older. Defendant told the officer that he was 23 years old and that his birthday was June 11, 1957. The majority opinion would reverse if there were no other corroborating evidence. I would not. His age was given, and the judge and jury had an opportunity to observe the defendant and thus, by observation, to corroborate the stated age. That should be quite sufficient.

Opprobrium should not be heaped on this court, however, for the decision in Dalton nor for their rationale in this case. The majority is attempting to follow judicial precedent and correctly cites an earlier decision of our supreme court which supports their line of argument. That is People v. Rogers (1953), 415 Ill. 343. That case insulted common sense. Stare decisis is a valid legal proposition. When the position is wrong, however, courts should not remain wedded to error in perpetuity. This is just such a case.

A person’s statement as to his own age is always hearsay. No one remembers his own birth. When a person gives his age, he is repeating what someone has told him, or what he has seen written down. This is so whether his statement as to age is given in court or out of court. When a person states his age, however, the other party has an opportunity to look at the person and make observations by way of verification or denial. That is evidence enough. Any other ruling flies in the face of ordinary experience and common sense.

People v. Dalton and People v. Rogers do precisely that. I, for one, do not care to republish and perpetuate that error.


source: Caselaw Access Project

author: Mr. JUSTICE ALLOY

license: Public Domain

text:
    JERRY M. GRAY et al., Plaintiffs-Appellees and Cross-Appellants, v. ITT THORP CORPORATION, a/k/a Thorp Credit, Inc., of Illinois, Defendant-Appellant and Cross-Appellee.
    Third District
    No. 81-174
    Opinion filed October 16, 1981.

      Barney Olson, II, of Galesburg, for appellant.
    Barry Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellees.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

ITT Thorp Corporation, formerly Thorp Credit, Inc., of Illinois (hereinafter Thorp), appeals from entry of summary judgment in favor of plaintiffs Jerry and Christine Gray. The Grays had brought suit to recover damages for violations of the Consumer Installment Loan Act (hereinafter CILA) (Ill. Rev. Stat. 1977, ch. 74, par. 51 etseq.) and the Federal Truth in Lending Act (hereinafter TILA) (15 U.S.C. §1601 et seq. (1976)). The action was based upon alleged violations in three loan agreements between Thorp and the Grays in 1976 and 1977. The court granted summary judgment to the Grays and awarded recovery to them on loans 1 and 2, based upon the CILA non-disclosure claims. It granted statutory recovery in the amount of twice the finance charges on each loan, reduced by the amount due Thorp on loan 3, the only outstanding loan. The difference was $396.35 in favor of the Grays, and judgment for that amount, plus attorneys fees and costs was granted. Thorp appeals from the entry of summary judgment. No issue of material fact exists, leaving only questions of law for determination.

The facts pertinent to the issues on appeal are that the Grays and Thorp entered into two loan transactions in 1976. Each loan was evidenced by a security agreement and a combined note and disclosure statement of loan. In the form security agreement covering the first loan, that of July 28, 1976, the Grays granted Thorp a security interest in:

“All of the household goods, boats and recreational vehicles now located in or about the Debtor’s premises 6 e °, all unearned credit insurance premiums and the following specific' items of personal property (if any):
1 - Zenith Color TV set
# # #
including all increases thereof, all improvements thereon and all equipment and accessories belonging thereto, and all substitutions and replacements and proceeds thereof, * * *. Debtor further grants to Secured Party a security interest in all goods, personal property and chattels of the same or similar type or kind to that described above now owned or hereafter acquired, excepting only after acquired consumer goods acquired more than 10 days after the date hereof.”

The disclosure statement with respect to loan 1, however, described the property covered by the security agreement as “wage assignment, and 1 - Zenith Color TV set.” It further disclosed that “the Security Agreement will secure future and other indebtedness (except consumer credit sales) and will cover after-acquired property as described therein, excepting only consumer goods acquired more than 10 days after the date hereof.” It is clear from an examination of the documents that the disclosure statement failed to disclose to the consumers that they had given Thorp a security interest in household goods, boats and recreational vehicles. A similar discrepancy between loan 2’s security agreement and its disclosure statement also existed. A security interest in boats and recreational vehicles given in the security agreement was not disclosed in the statement. Consumers argued, and the trial court found, that the discrepancies between the security agreements and the disclosure statements violated section 16(k) of the CILA. Section 16(k) (Ill. Rev. Stat. 1977, ch. 74, par. 66(k)) states:

“In any loan transaction under this Act, the licensee must disclose the following items to the obligor of the loan before the transaction is consummated:
6 # <*
(k) A description or identification of the type of any security interest held or to be retained or acquired by the licensee in connection with the loan and a clear identification of the property to which the security interest relates. If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.”

The trial court found that Thorp, in failing to disclose the full extent of the property subject to their security interest, had violated this section, such violations entitling consumers to an award on each loan, in the amount of twice the finance charge. (Ill. Rev. Stat. 1977, ch. 74, par. 70(b).) Summary judgment was entered on this basis, as well as on several other alleged violations of disclosure requirements under the CILA. Since we find grounds for affirmance on the stated basis above, being the discrepancies and nondisclosure, we do not reach the other issues raised concerning alternative grounds for the judgment.

Thorp’s sole argument to this court, concerning the lack of disclosure of the security interest in boats and recreational vehicles is that disclosure was not required, under the CILA, because those interests were merely “incidental interests,” under a recent United States Supreme Court decision (Anderson Brothers Ford v. Valencia (1981),_U.S._, 68 L. Ed. 2d 783, 101 S. Ct. 2266) arising under the TILA. We have previously held that due to the essential identity between provisions of the Federal TILA and the Illinois CILA, cases decided under the TILA are highly persuasive authority for similar questions arising under the GILA. (Kraft v. No. 2 Galesburg Crown Finance Corp. (1981), 95 Ill. App. 3d 1044, 1046, 420 N.E.2d 865.) In Valencia the court held that a security interest given in unearned insurance premiums, as arising under an insurance policy on the secured automobile, was merely an “incidental interest” that need not be disclosed on a disclosure statement required under the TILA and Regulation Z. (Anderson Brothers Ford v. Valencia (1981),_U.S._,_,68 L. Ed. 2d 783, 796, 101 S. Ct. 2266, 2275-76.) In so holding, the court relied upon Federal Reserve Board interpretations of the TILA’s requirements for disclosure and upon revisions of Regulation Z. The court noted with approval the board’s distinction between primary security interests and incidental interests, stating:

“ ‘[T]here is a difference between an incidental interest and an interest that is the essence of the transaction. For example, when an automobile is financed, the insurance proceeds are incidental to the primary security interest, the automobile. The creditor’s interest in such insurance would not be a security interest under the regulation. On the other hand, when the credit transaction is the financing of an insurance policy, the creditor’s interest in that policy would be disclosed as a security interest.’ ” Anderson Brothers Ford v. Valencia (1981),_U.S._,_, 68 L. Ed. 2d 783, 791-92,101 S. Ct. 2266, 2271-72.

The distinction made in Valencia is between property which forms the primary and essential security for a loan transaction, the interests in which must be fully disclosed, and property which by virtue of its close relationship to the primary property is considered incidental to the primary property. In the auto example, where the auto secures the loan, it must be listed and disclosed. However, related or incidental interests in the auto, such as insurance premiums unearned, accessions or accessories, need not be disclosed.

In the instant case, Thorp asserts that the primary property secured by the loans was the property listed on the disclosure statements, being the wage assignment and the color TV, as to loan 1, and the wage assignment and household goods, on loan 2. It then asserts that the security interest taken in boats and other recreational vehicles was merely an incidental interest. Thorp’s argument totally misconstrues the meaning of “incidental” as used by the court in Valencia and as interpreted by the board in the revised regulations. To be an “incidental interest” not requiring disclosure the property must relate to the primary property put forth as security. It must be an incident of that primary property. In the instant case, Thorp would have to show that the boats and recreational vehicles covered by the security agreement had a relationship to the other “primary security.” Yet, here there is no such relationship, and it appears from the face of the document that the interest taken in them was just as primary as the other interests.

The interests taken in boats and other recreational vehicles has no incidental or derivative relationship whatsoever to the wage assignment, color TV, or other items listed as security. They are not “incidental interests” arising from interests taken in that other property. That Thorp may have rélied primarily on the other listed property for security does not establish that the interests taken in boats and vehicles were “incidental interests” under the CILA and Valencia. We find that the security interests taken in boats and recreational vehicles were primary and not incidental interests, as those terms are used in construing the TILA and the CILA. Therefore, disclosure of them was required, and the failure to fully disclose them on the disclosure statement constituted a violation of section 16 (k) of the CILA.

We reject the suggestion that the discrepancies were somehow cured by the disclosure statements’ references to the security agreements as to property covered. In the first place, even with such reference, the discrepancy remained misleading, in that the other property was disclosed on the disclosure form. Secondly, if such reference is arguably permissible under the CILA, a question we do not reach, it would only be permissible in a strictly limited situation where proper disclosure cannot be made on the statement due to the length of such identification. (See Bulger v. Thorp Credit Inc. of Illinois (7th Cir. 1979), 609 F.2d 1255, 1258-59.) The documents in the instant case did not require reference to the security agreement due to the length of the identification. It is apparent that the interests in boats and recreational vehicles could easily have been disclosed on the disclosure statements.

We would also note that our basic decision that violations occurred herein finds support in the Bulger case, which was relied upon by the trial court. That case involved substantially similar discrepancies on Thorp loans wherein violations were premised upon related sections of the TILA. The court therein rejected several other Thorp arguments, which have not been pursued in this appeal, and it held that violations occurred in the lack of full disclosure as to interests in boats and recreational vehicles. (609 F.2d 1255, 1257-58.) We make no determination on those arguments, Thorp having chosen not to pursue them on this appeal. However, we have already noted the persuasive nature of such authority, based as it is on related provisions of the TILA.

The final issue we need to address is whether recovery on loans 1 and 2 should be barred, under the doctrine of “novation”. Essentially, Thorp puts forward a merger argument, asserting that loan 1 was merged into loan 2, which was in turn merged into loan 3. Therefore, the argument goes, the loan agreements as to loans 1 and 2 were extinguished and they may not be relied upon at this time by consumers in seeking damages. We have already decided that merger does not affect the statutory causes of action for violations of the CILA. (Kraft v. No. 2 Galesburg Crown Finance Corp. (1981), 95 Ill. App. 3d 1044,1049-50, 420 N.E.2d 865.) We adhere to that position.

The judgment of the Circuit Court of Knox County is affirmed.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE STOUDER

text:
    ANNA BERNARDONI, Plaintiff-Appellant, v. ALLISON HEBEL, Defendant-Appellee.
    Third District
    No. 81-95
    Opinion filed October 20, 1981.

      Eric B. Doebler, of Cantlin, Bute & Associates, of Ottawa, for appellant.
    Douglas J. Pomatto and Robert V. Dewey, Jr., both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Anna Bernardoni filed a two-count complaint to recover damages for personal injuries allegedly occasioned by the negligence and wilful and wanton misconduct of defendant Allison Hebei. After the voluntary dismissal of the count alleging wilful and wanton misconduct, the cause proceeded to a jury trial in the circuit court of La Salle County. The jury returned a general verdict in favor of defendant-and judgment was entered thereon. On appeal, plaintiff presents two issues for review: Whether the trial court properly denied her motions for a new trial or judgment n.o.v. in light of the evidence and errors in instructions.

The incident out of which this litigation arose occurred at approximately 4 p.m. on February 19,1979, in Peru. Plaintiff was standing on the northwest corner of the intersection of Fourth and Peoria Streets, waiting for the traffic signal and walk light to permit her to proceed south across the latter street. Defendant had driven south on Peoria Street, and her vehicle was the first one stopped on the subject corner. During her discovery deposition, plaintiff stated she at no time saw defendant’s automobile, but at trial she testified that she saw the vehicle when it was so stopped. When the traffic signal and walk sign changed, plaintiff stepped off the curb and proceeded across the street without looking left or right. Defendant proceeded to make a right hand turn.

Plaintiff’s version of the ensuing accident was that she was struck on her left shoulder by defendant’s subcompact automobile after she had taken three or four steps into the intersection. She testified she was in the middle of the crosswalk and was knocked unconscious. Defendant’s version of the accident was that she was turning at a speed of three to five miles per hour when she saw plaintiff falling in front of her vehicle. She had not previously seen plaintiff and never felt any impact, though in answer to a query during direct examination as to whether she struck plaintiff, defendant responded, “Yes, I suppose I did.” The only other witness stated he saw plaintiff’s body coming through the air and landing 10 to 15 feet from the west line of the crosswalk, while defendant’s automobile was stopped at that line. It was uncontroverted that no obstruction prevented the parties from seeing one another prior to the accident. Defendant later pleaded guilty to charge of failing to yield the right-of-way.

The first issue presented for our review is whether plaintiff’s motion for judgment n.o.v. was properly denied in light of the evidence adduced at trial. The standard applicable to the motion is that announced in Pedrick.

The elements of an action sounding in negligence are the existence of a duty of reasonable care owed a plaintiff by a defendant, a breach of that duty, an injury proximately resulting from such a breach, and a plaintiff’s freedom from contributory negligence. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 410 N.E.2d 969.) While no special interrogatory was tendered to the jury, plaintiff contends the latter element is “[a]t the very center of this case * * so we there direct our attention.

Uncontroverted are the facts that plaintiff began to cross Fourth Street when the walk sign permitted, and that she did not look left or right after stepping off the curb. While at trial she maintained that she had seen defendant’s automobile stopped at the traffic signal before she began to cross the street, she denied ever seeing the vehicle in her deposition testimony.

Plaintiff has cited numerous decisions in support of her contention that, as a matter of law, she is not guilty of contributory negligence. While an examination of each of these cases would result in an opinion of undue length, we note that in all but three decisions, the question of contributory negligence was left to the jury. We shall briefly consider these three exceptions to the general rule that this determination is a jury function. E.g., Moran v. Gatz (1945), 390 Ill. 478, 62 N.E.2d 443.

Fox v. Calhoun (1975), 34 Ill. App. 3d 336, 340 N.E.2d 125, involved a plaintiff who was struck by a motorist after getting off a bus and attempting to cross a T intersection. After disembarking, he walked, with the walk signal, in front of the bus and looked to his left and right when he reached its corner. When he then proceeded three or four feet, plaintiff was struck by the defendant motorist. The trial court directed a verdict establishing the defendant’s liability. On appeal, the defendant argued, inter alia, that the pedestrian plaintiff was contributorily negligent as he had failed to observe the impending danger. Noting that plaintiff had looked both ways at the edge of the bus, the fact that to some extent his view was blocked, and that he could not stay where he was; the court held he was not contributorily negligent.

Walls v. Hofbauer (1977), 45 Ill. App. 3d 394, 359 N.E.2d 1037, involved an eight-year-old boy who was struck by the defendant motorist while walking in a crosswalk. The boy looked left and right and noticed the defendant’s automobile a considerable distance away. When he then began to cross the street, he was struck. The court set aside an answer to a special interrogatory finding the minor was contributorily negligent as against the manifest weight of the evidence.

Albaugh v. Cooley (1980), 88 Ill. App. 3d 320, 410 N.E.2d 873, appeal allowed (1981), 82 Ill. 2d 583, involved a plaintiff who was struck by the defendant motorist while crossing a street in an unmarked crosswalk. He looked to his left and saw defendant’s automobile one-half to one block away. The plaintiff then began to cross the street while looking in a westerly direction. When he reached the middle of the street, the vehicle struck him. By special interrogatory, plaintiff was found guilty of contributory negligence. On appeal, the court held plaintiff had a right to rely on a driver on a suburban street seeing and permitting a pedestrian to cross when one-half to one block away.

Each of these cases involves a pedestrian who looked to see if he could safely cross a street before commencing, or during, such a crossing. Fox additionally involves some obstruction of the pedestrian’s vision. While the factual differences are obvious, neither of these factors is here present. There was nothing obstructing plaintiff’s view and no testimony indicating she looked left or right, although if the jury believed her trial, rather than deposition testimony, she did notice defendant’s automobile when it was stopped. Even if the jury so believed, the record is void of even an implication that plaintiff looked for moving vehicles at any time.

The supreme court has indicated the role of the jury in cases of this nature:

“Each case must be determined from its particular facts. The question of contributory negligence is one which is pre-eminently for the consideration of a jury. It cannot be defined in exact terms and unless it can be said that the failure of the plaintiff to look again was so palpably contrary to the conduct of a reasonably prudent person as to show contributory negligence, the issue is one for the jury. [Citation.]
The rule seems to be quite universal that a pedestrian’s failure to keep a constant lookout, or to look again after having determined that he can safely cross ahead of approaching traffic, is not contributory negligence as a matter of law but it is a question for a jury whether he was in the exercise of ordinary care for his own safety. [Citations.]
Each case must be considered in the light of the facts and circumstances surrounding it. The pedestrian’s right of way is not absolute because both he and the vehicle happen to be on the street at the same time. 0 * (Moran v. Gatz (1945), 390 Ill. 478, 486, 62 N.E.2d 443, 446.)

Considering the facts and circumstances herein, we find sufficient evidence for a jury determination of contributory negligence. A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.) The trial court properly denied plaintiff’s motion and entered judgment on the jury’s verdict.

The second issue presented for our review is whether plaintiff’s motion for a new trial was properly denied in light of the trial court’s refusal to give certain instructions.

The instructions in question were based on Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971). The trial court first admitted Plaintiff’s No. 18, which read as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
The driver is to yield the right-of-way to a pedestrian in a crosswalk.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

Plaintiff then tendered her No. 19:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
The driver of all vehicles shall give the right-of-way to pedestrians who are facing a walk signal and proceeding across the crosswalk in the direction of the wálk signal.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

The court ruled that she had to select one of these instructions, and plaintiff chose the latter. The court also refused to give Plaintiff’s No. 22, which read:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
That no person may drive a vehicle in an intersection until such movement can be made with reasonable safety.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

Lending perspective to this situation is an examination of the issue instruction, Plaintiff’s No. 24, which provided, inter alia:

“(1) The plaintiff claims he [sic] was injured and sustained damage while exercising ordinary care and that the defendant was negligent in one or more of the following respects:
Failed to yield the right-of-way to a pedestrian within a crosswalk according to a statute in effect requiring traffic and vehicles to yield to pedestrians in a crosswalk.
Failed to yield the right-of-way to the plaintiff as she was crossing said intersection.
Failed to keep a proper lookout for persons who might be crossing said intersection in question.
Turned said automobile at the intersection when movement could not be made with reasonable safety.”

It can be seen that the first allegation of negligence in this instruction is essentially the same as the refused plaintiff’s No. 18. The fourth allegation is likewise essentially the same as the refused plaintiff’s No. 22, although the latter instruction specifically mentioned the underlying statute.

Where several instructions embodying the same legal principle are submitted to the court, it may select the one it sees fit and need not repeat the same proposition of law in different language in separate instructions. (Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63, appeal dismissed, cert. denied (1959), 361 U.S. 127, 4 L. Ed. 2d 180, 80 S. Ct. 256.) It is ordinarily the province of the court to determine whether a statute, or the language used in a statute, is clear enough to be given to the jury without explanation, and unless it can be said that the failure to give such an instruction is prejudicial to the rights of the parties, it is not error for the court to refuse it. (Clarke v. Storchak (1943), 384 Ill. 564, 52 N.E.2d 229, appeal dismissed (1944), 322 U.S. 713, 88 L. Ed. 1555, 64 S. Ct. 1270.) As we find no prejudice to plaintiff as a result of the refused instructions, the trial court’s decision was proper.

Accordingly, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SCOTT, P. J., and HEIPLE, J., concur.


author: Mr. JUSTICE BARRY

text:
    PEKIN INSURANCE COMPANY, Plaintiff-Appellee, v. DWIGHT BUCY et al., Defendants-Appellants.
    Third District
    No. 80-574
    Opinion filed October 22, 1981.

      James T. Moreno, of Abingdon, for appellants.
    Burrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

Defendants Gerald Stone, Deanna Stone, and Jennifer Stone appeal from a declaratory judgment which held that defendant Dwight Bucy’s liability policy with plaintiff Pekin Insurance Company was cancelled as of February 1,1976, and, hence, did not provide coverage for an accident occurring on February 15, 1976.

Defendant Buey was the owner of a service station, car wash, and motel business in Astoria, Illinois. In conjunction with this business he was also a retail dealer for certain three wheel vehicles known as Owosso Explorers. One such Explorer was purchased from Buey by Gerald and Deanna Stone in August 1975, and on February 15, 1976, Deanna Stone and her daughter Jennifer were injured when the Stones’ Explorer, which Deanna was operating, turned over while going around a curve. The Stones filed suit against Buey, alleging in part that the vehicle was defective. Bucy’s insurer, Pekin Insurance Company, furnished Buey a defense with a reservation of rights, and then filed the declaratory judgment action herein considered in the circuit court of Knox County, contending that Bucy’s liability policy did not afford coverage on the date of the accident because Buey had cancelled the policy on February 1, 1976.

According to the record of the trial court proceedings, Buey had agreed in January of 1976 to sell his business to Paul Marenda, who took possession on February 1, 1976. A few days before February 1, Buey called his insurance agent, Ralph Matheny of France Insurance Agency, to tell him of the impending sale and to request that his liability insurance policy be cancelled (as well as other policies not here involved) as of February 1. Matheny directed his secretary-bookkeeper, Mrs. Carolyn Severn, to send a cancellation notice to Pekin Insurance Company. The secretary prepared the request for cancellation, signed Bucy’s name at the bottom of the form and mailed it to Pekin. She testified at trial that she prepared and mailed the form on February 1, and that she always typed, signed and dated requests for termination on the same day.

Pekin mailed back to France Insurance Agency a notice of policy termination dated March 2,1976, which indicated that Buey was entitled to credit for an “unearned premium” of $81.40 computed from February 1, 1976. The bookkeeper made the appropriate entries in the France Insurance Agency books reflecting the credit. Those entries were dated March 3, 1976. The department head of Pekin Insurance Company who was responsible for handling requests for cancellation testified that there is not more than a day or two time lapse between the time a request for cancellation is received and the notice with unearned premium is sent out. He also verified that the refund to Buey was computed on the basis of a policy termination date of February 1, 1976. Buey did not testify at trial.

The trial court found that the policy was terminated on February 1, 1976, and that Pekin was not obliged to provide coverage. The Stones have appealed.

The first contention is that the court erred in concluding that the policy was cancelled on February 1, 1976, when France Insurance Agency’s request for cancellation was stamped as received by Pekin on March 1, 1976, and Pekin’s notice of cancellation sent back to France Insurance Agency was dated March 2,1976. The Stones also insist that the fact that February 1 was a Sunday in 1976 has a great bearing. However, that point was not mentioned in the trial court and so none of the witnesses were asked to explain the fact. This is strictly a factual issue. Mrs. Severn testified in a very positive manner that she prepared and mailed the request on February 1. No one contradicted her testimony directly, although there was evidence to indicate that Pekin did not receive or process that request until March 2. Pekin Insurance Company gave credit for unearned premium computed from February 1. This, of course, is the classic situation for a trier of fact to view the witnesses, weigh the evidence, draw those inferences that seem reasonable, and make a finding. A reviewing court will not substitute its judgment for that of the trier of fact unless the holding of the trial court is manifestly against the weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) We cannot say that the trial court’s finding in this case was erroneous.

The Stones also argue that the request for cancellation mailed on February 1, seeking termination as of February 1, was not sufficient to terminate the policy because the policy itself required written notice “stating when thereafter the cancellation shall be effective.” In other words, it is argued that the date of cancellation has to be a date after the date of the request. We do not accept that argument. Similar policy provisions have been held to permit a cancellation effective the date of the notice. (Nobile v. Travelers Indemnity Co. (1958), 4 N.Y.2d 536, 176 N.Y.S.2d 585; State Farm Mut. Automobile Ins. Co. v. Pederson (1947), 185 Va. 941, 41 S.E.2d 64.) We agree with those authorities.

Another contention advanced by the Stones is that Bucy’s request was not effective because he did not sign it himself. The insurance policy provides that one acceptable method for the insured to cancel the policy is “by mailing to the company written notice stating when thereafter the cancellation shall be effective.” This provision does not require that the written notice be signed by the insured himself, so we believe the fact that France Insurance Agency sent the notice upon Buoy’s behalf would not invalidate the notice. Furthermore, Matheny testified that he was an agent for Pekin Insurance Company. Numerous cases have held that notice of cancellation to an agent clothed with apparent authority to act for an insurance company is notice to the company. (E.g., State Farm Mut. Auto. Ins. Co. v. Miller (1953), 194 Va. 589, 74 S.E.2d 145.) Since Matheny appeared to have authority to act for Pekin, we can see no error in the trial court’s ruling.

For the reasons stated, we affirm the judgment of the circuit court of Knox County.

Affirmed.

SCOTT, P. J, and ALLOY, J, concur.


author: Mr. JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD B. ALDRIDGE, Defendant-Appellant.
    First District (1st Division)
    No. 79-54
    Opinion filed October 13, 1981.

      Sheila Murphy, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant was found guilty by a jury of the crimes of rape, armed robbery, aggravated kidnapping and burglary. The trial court sentenced him to 28 years in custody for the crimes of rape and armed robbery, sentences to run concurrently. Defendant now appeals.

On appeal, defendant argues that (1) the trial court erred in denying his motion for substitution of judges; (2) the trial court erred in not allowing defense counsel to introduce into evidence and cross-examine complainant about a composite sketch of the offender prepared by police from complainant’s description; and (3) the lineup identification and fingerprint comparison should have been suppressed.

We affirm.

The first two errors alleged by defendant on appeal are procedural., These two are also the most significant issues. Therefore, a detailed recitation of the facts is unnecessary. An abbreviated version follows.

On July 16, 1977, at 12:30 a.m., complainant left work and drove to her apartment in Evanston, Illinois. She testified that as she walked into the vestibule of her apartment building, defendant grabbed her from behind, choked her and threatened to kill her. This was the beginning of an ordeal which lasted approximately five hours.

In the course of the incident, complainant was subjected to various indignities and violations of her person. She was forced to undress, beaten, tied with a dog leash and raped. After the incident, complainant telephoned her parents and then reported the incident to the police. She was treated later that evening at the Evanston Hospital emergency room. She was examined by a doctor who testified that complainant sustained abrasions on her face and arms and that motile sperm was found in complainant’s vagina.

A reported rape unrelated to complainant’s rape eventually led to defendant’s arrest. On August 9, three weeks after complainant was raped, Officer A1 Szoldatits was on patrol with his partner on the south side of Chicago. He spotted an automobile parked in an alley near 87th Street and Michigan Avenue. Looking inside the car, he saw a man lying down and a young blonde woman who was naked from the waist up. The man was defendant. Szoldatits asked whether there was anything wrong, and the two said that there was no problem. He took both of their names and addresses. Defendant stated that his name was Philip Rucker.

Approximately one hour later, the woman who had been in the car reported to the Evanston police that she had been abducted, raped and robbed. She stated that she had been stopped by the Chicago police earlier that evening. The Evanston police then contacted the Chicago police and obtained defendant’s name and address. An Evanston detective and two Chicago police officers went to defendant’s home and conducted a search. Several items belonging to the woman were recovered. Defendant was arrested later that evening.

Primarily, the incriminating evidence against defendant consisted of a lineup identification of defendant by complainant and a fingerprint of defendant’s found in her apartment. Defendant’s defense theory was that he had always had a beard and therefore could not have been the perpetrator of the crime. Both at the time of his arrest and at the lineup, defendant had a short beard. The day after complainant was raped, an Evanston police officer and complainant assembled a composite sketch of the rapist. The composite indicated that the rapist had been clean-shaven. At trial, complainant again described the man who had raped her as clean-shaven. Defendant called five witnesses at trial, all of whom were friends and relatives, who testified that defendant had had a beard on the date when complainant was raped.

An Evanston police officer dusted complainant’s apartment for fingerprints. He discovered latent fingerprints on an ashtray in complainant’s apartment. A fingerprint examiner compared defendant’s fingerprints to those which had been found on the ashtray. One of the latent prints taken from the ashtray was identical to defendant’s right index fingerprint. The examiner explained at trial that there were 14 points of comparison between the prints, in excess of the number necessary for a positive identification.

The jury found defendant guilty of all charges.

First, defendant argues that the trial court erred in denying his motion for substitution of judges. The statutory provision governing motions for substitution of judges provides that a defendant may move in writing for a substitution of a particular judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a).) The motion must be made within 10 days after the case has been placed on the trial judge’s call and before the trial judge has ruled on any substantive issues. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a).) If these requirements are met, the defendant has an absolute right to have the case transferred to another judge. In the present case, the trial judge had not ruled on any substantive issues before defendant moved for substitution. The only question with which we are concerned is whether defendant’s motion was timely filed.

In 1978, when defendant’s case went to trial, the Second Municipal District of the circuit court of Cook County had one felony courtroom. Judges were assigned to the felony courtroom on a rotating basis. Each judge sat in the felony courtroom for one calendar month.

On April 15, 1978, defendant appeared before Judge Stein, who set the case for May 1, 1978. On May 1, 1978, the case was called before Judge Nicholas Pomaro, who was the trial judge assigned to the felony trial courtroom for the month of May. It was on this day that defense counsel first became aware that Pomaro would be the trial judge. On May 2, 1978, as the first order of business, defense counsel filed a motion for substitution of judges. Judge Pomaro denied the motion on the ground that the case had been on his call for more than 10 days as of May 2. He noted that his assignment to the courtroom had been published in the Daily Law Bulletin the previous month.

Recent cases have liberally construed section 114 — 5(a) so as to permit rather than deny a substitution, holding that a motion for substitution of judges is timely filed if it is filed within 10 days of the date defendant could be “charged with knowledge” of the assignment of the case to the trial judge. (People v. Massarella (1979), 80 Ill. App. 3d 552, 563, 400 N.E.2d 436; People v. Oatis (1979), 69 Ill. App. 3d 736, 741, 387 N.E.2d 1052; People v. Flowers (1977), 47 Ill. App. 3d 809, 811, 365 N.E.2d 506.) A liberal construction of the statute, however, does not necessitate a finding that such a motion was timely filed in all cases.

The basis of the trial judge’s ruling was that his assignment to the felony courtroom had been published in the Daily Law Bulletin the previous month. We do not believe that simply because a trial calendar is published in a law bulletin, a defendant can be charged with knowledge of an assignment to a particular judge’s trial call. In the present case, however, one additional factor persuades us that the trial court’s ruling was correct. Defendant’s attorney had represented defendant in at least eight hearings in the Second Municipal District over a period of six months. In October 1977, defendant twice appeared before Judge Stein; in November 1977, defendant twice appeared before Judge Pomaro; in December 1977, he appeared before Judge Breen; in January 1978, he appeared before Judge Crowe; in February 1978, he appeared before Judge Fiala; in March 1978, he appeared before Judge Breen; in April 1978, he again appeared before Judge Stein. It is neither unreasonable nor manifestly unfair to charge defendant with knowledge of local courtroom assignment procedures when his attorney represented him continuously for this amount of time. We find, therefore, that defendant failed to make his motion within the statutorily required time period.

Second, defendant argues that the trial court erred in not allowing defense counsel to introduce into evidence and cross-examine complainant about a photocopy of a composite sketch of the offender. With complainant’s assistance, an Evanston police technician used an identi-kit to produce a likeness of the offender. An identi-kit consists of several transparent overlays. On each overlay is a printed variation of a facial feature. The eyewitness selects the variation of each feature which most closely resembles that of the offender. The overlays are assembled, and a final composite is produced on a photo-copying machine.

Defense counsel attempted to impeach complainant with the final composite by showing that she had described the offender as clean-shaven. The trial court ruled that the final composite constituted impermissible hearsay evidence. In so ruling, the trial court relied on two appellate cases which recently were overruled by the Illinois Supreme Court. (See People v. Fair (1977), 45 Ill. App. 3d 301, 359 N.E.2d 848; People v. Jones (1975), 34 Ill. App. 3d 103, 339 N.E.2d 485.) In People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, the Illinois Supreme Court held that a composite sketch prepared from an identi-kit does not constitute impermissible hearsay. (81 Ill. 2d 571, 580.) Thus, the trial court’s rationale for excluding the evidence is no longer valid.

Nevertheless, we do not believe that it was reversible error to exclude the final composite from evidence since the evidence was merely cumulative. The description of the attacker initially given by complainant to the police officer was entirely consistent with the description she gave during both direct and cross-examination. The trier of fact was aware that complainant consistently stated that she had been raped by a clean-shaven man. The jury also was aware that at the lineup and in court, complainant identified defendant as her attacker even though he wore a short beard on both occasions.

A trial court has the power to exclude evidence which is cumulative. (People v. Leonard (1980), 80 Ill. App. 3d 741, 400 N.E.2d 568; People v. Garcia (1978), 65 Ill. App. 3d 13, 382 N.E.2d 316; People v. Godbout (1976), 42 Ill. App. 3d 1001, 356 N.E.2d 865.) In light of Rogers, the trial court’s exclusion of the evidence on the ground that it was hearsay was incorrect. The evidence, however, was merely cumulative and not impeaching, and we therefore hold that the exclusion of the evidence was not error.

Defendant argues that some of the evidence against him was produced by an unlawful investigative stop followed by an unlawful arrest. The lineup identification and fingerprints, he argues were the fruit of the illegal arrest and, therefore, should have been suppressed. In our judgment, neither the investigative stop nor defendant’s subsequent arrest was unlawful.

An investigative stop is justified if there are specific and articulable facts which, taken together with rational inferences from those facts, make the intrusion reasonable. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In the present case, a police officer patrolling the area noticed movement in a car parked in an alley. Clearly, he was justified in looking inside the car. He observed defendant lying down and a woman naked from the waist up. Given the fact that it was 3 a.m., the car was parked in a dark alley, and one of the persons was undressed from the waist up, it was not improper for the officer to demand the parties to give their names and addresses and an explanation of their actions. See Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14.

Defendant further argues that his arrest was unlawful because it was carried out by Evanston police officers within the city of Chicago. Illinois case law and statutory law provide that a police officer may enter another municipality to make an arrest for a crime committed within his own jurisdiction. (See People v. Durham (1979), 71 Ill. App. 3d 725, 390 N.E.2d 517; Ill. Rev. Stat. 1979, ch. 38, par. 107 — 5(c).) The woman complained that she had been abducted in Evanston, then taken to Chicago and raped. Evanston police officers, therefore, had the right to arrest defendant in Chicago a few hours later.

Since we believe that neither the investigative stop nor defendant’s arrest was improper, there is no reason to consider whether the lineup identification and fingerprint comparison were the fruits of any unlawful acts.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE NASH Mr. JUSTICE UNVERZAGT,

text:
    CHRISTOPHER AMBROIGGIO, a Minor, by Diane Ambroiggio, his Mother and Next Friend, et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 44, DU PAGE COUNTY, Defendant-Appellant.
    Second District
    No. 80-842
    Opinion filed October 20, 1981.
    UNVERZAGT, J., dissenting.
    Everett Nicholas, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellant.
    Barry H. Sherman, of Oakbrook Terrace, for appellees.
   Mr. JUSTICE NASH

delivered the opinion of the court:

Defendant, Board of Education of School District No. 44, Du Page County, appeals from a judgment of the circuit court permanently enjoining it from the assessment of a fee against certain of its students who use the supervised lunchroom services provided by the school. We reverse.

Plaintiffs, Christopher Ambroiggio, Anna Elz and Susan Elz, by their parents and next friends, Diane Ambroiggio and Robert Elz, brought this action to enjoin collection of the lunchroom supervisory fee of $15 assessed each term against all children who reside 0.7 of a mile or less from their school and eat their lunches in the school lunchroom. In their complaint plaintiffs alleged the fee was not authorized by the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 1 — 1 et seq.), and also violated the free education clause of the State Constitution (Ill. Const. 1970, art. X, §1), which provides that “[ejducation in public schools through the secondary level shall be free.” The trial court reasoned that if the supervised lunchroom program, which may be used only by students paying the requisite fee, is for an educational purpose then article 10 of the constitution would bar assessment of the fee. The court also found that if the program was not for educational purposes the fee was unauthorized under the School Code. The trial court concluded defendant may not charge a fee for the use of its facilities, or the supervision of the children using the facilities, and issued the injunction from which defendant appeals.

Evidence was presented that defendant provides space in its school building for students to eat lunches brought by them and during that period they are supervised by noncertified school personnel. No student is required to participate in the lunch program, but those who do so are placed in two categories. If a child resides more than 0.7 of a mile from school or is provided bus transportation to school he may participate in the program without charge. Those children, including plaintiffs, who reside 0.7 of a mile or less from school and are not transported by a school bus, however, are assessed the $15 fee if they wish to eat their lunches in the school facilities. The parties agree that defendant has the authority under the School Code to provide a lunchroom supervision program but differ on the question of whether fees may be charged.

The general powers and duties of a school board are set forth in sections 10 — 20 and 10 — 22 of the School Code. It is well established that a broad spectrum of implied and incidental powers may be inferred from these express statutory grants. (Beck v. Board of Education (1975), 27 Ill. App. 3d 4, 8, 325 N.E.2d 640, 643, aff'd (1976), 63 Ill. 2d 10, 344 N.E.2d 440; see also Wilson v. Board of Education (1908), 233 Ill. 464, 84 N.E. 697; Byerly v. Board of Education (1978), 65 Ill. App. 3d 400,382 N.E.2d 694.) Section 10 — 20.5 of the School Code permits a board to adopt and enforce all necessary rules for the management of its schools, and section 10 — 22.26 permits a school district to maintain and finance a school lunch program. Section 10 — 22.34 provides that “[sjchool boards may employ non-teaching personnel 0 * 9 for non-teaching duties not requiring instructional judgment or evaluation of pupils” and they may “designate non-certificated persons * * * to serve as supervisors, chaperones or sponsors, either on a voluntary or on a compensatory basis for school activities not connected with the academic program of the schools.” Ill. Rev. Stat. 1979, ch. 122, par. 10 — 22.34a.

As defendant has the express power to operate a lunch program and to employ personnel to supervise it, we conclude it has an implied authority to impose a fee to help offset the costs of the program. See Beck v. Board of Education (1976), 63 Ill. 2d 10, 15, 344 N.E.2d 440, 442.

We next consider whether the lunchroom supervision fee imposed by defendant violates the “free education” clause of the Illinois Constitution. (Ill. Const. 1970, art. X, §1.) The parties agree the issue as formed by the facts of this case has not been directly considered by the reviewing courts of this State or other jurisdictions. (See Annot., 41 A.L.R.3d 752 (1972).) In Illinois, similar litigation has centered on unsuccessful challenges of fees imposed by school boards for textbooks, towels, locker rental and school supplies. See Beck v. Board of Education (1976), 63 Ill. 2d 10, 344 N.E.2d 440.

In Hamer v. Board of Education (1973), 9 Ill. App. 3d 663, 292 N.E.2d 569, this court referred to the record of the Constitutional Convention:

“In discussing the proposed new constitutional article pertaining to ‘free schools’ we find the Educational Committee member stated at page 765:
‘° ° ° The first part states that education in the public schools through the secondary level shall be free. This sentence picks up the 1870 Constitutional requirement of free schools. ° e * However, we recognize that schools are not totally free; through tradition and practice, this has been interpreted to mean tuition-free and not totally free public education, and this is the intent of this third paragraph.’
In response to a query as to what the word ‘free’ included, the following colloquy took place, as set forth at page 767:
‘° ° * Is it your intention that the word “free” includes anything other than tuition for the elementary and secondary schools?
Mr. FOCAL: You may recall earlier in our committee deliberations we voted tentatively to strike ‘free’, since most of us recognize that we don’t have — and as far as I know we never have had — totally free public schools; and we considered that earlier position. We felt that tradition will continue, probably, to interpret ‘free public education as we always have, and it’s open to either provide totally free education, whether you are speaking of book fees, book rentals, or PE equipment, or we can continue as we are now, 1 don’t think we have changed it.’ ” (Emphasis added.) (9 Ill. App. 3d 663, 666, 292 N.E.2d 569, 571-72.)

The reasoning of the Illinois cases as well as those from other jurisdictions distinguish educational services, which must be provided to students tuition-free, from noneducational services and school supplies for which reasonable charges may properly be assessed. See, e.g., Sneed v. Greens boro City Board of Education (1980), 299 N.C. 609, 611 n.1, 264 S.E.2d 106, 109 n.1, and cases cited therein; see also Granger v. Cascade County School District No. 1 (1972), 159 Mont. 516, 499 P.2d 780.

Plaintiffs contend the lunch program is a part of the educational process carried out by the school as it provides an opportunity for children to socialize, mature emotionally and engage in interpersonal relationships. We are not persuaded, however, that providing a secure place to eat lunch without interference from others can be so considered. The program in issue is not mandatory, although all the children have a lunch period, and it is supervised by nonteaching personnel. It would require strained reasoning to liken defendant’s lunchroom supervisory fee to a tuition fee which might be improperly charged for required educational courses or programs. Compare Norton v. Board of Education (1976), 89 N.M. 470, 553 P.2d 1277 (fee may be imposed for elective school courses, but not for required academic program).

Plaintiffs’ reliance on Elliot v. Board of Education (1978), 64 Ill. App. 3d 229, 380 N.E.2d 1137, is misplaced. There, the school board was required to pay the cost of a handicapped student’s education in a private school when he was excluded from public school by his handicap. Elliot must be distinguished as it was directed to payment of tuition for educational purposes, not to an incidental, noneducational program as in the present case.

We conclude that defendant had the implied power to impose the fee in question and in doing so did not violate the constitutional guarantee of a free education.

Plaintiffs also argue that if defendant was authorized to assess the fee in issue the classification scheme under which it is applied only against children living within 0.7 of a mile from school violates the equal-protection clause of the fourteenth amendment. Defendant points out, however, that this constitutional issue was not pleaded in plaintiffs’ complaint nor was evidence relating to it offered by either party in the trial court.

It is a basic principle that the issues in a case are framed by the pleadings and a party may not prevail where the proof does not follow the allegations made therein. (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 518, 377 N.E.2d 21, 24; Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454, 467, 300 N.E.2d 616, 625.) “[T]o have evidence without pleading an issue is as fatal as pleading an issue and not supporting it with evidence.” (In re Walton (1979), 79 Ill. App. 3d 485, 487-88, 398 N.E.2d 409, 411; see also Burke v. Burke (1957), 12 Ill. 2d 483,147 N.E.2d 373.) From our examination of the pleadings and the record of the evidentiary hearing, it is apparent that plaintiffs’ equal-protection argument suffers from both infirmities in that it was neither proved nor pleaded, and we will not consider it further.

Accordingly, the judgment of the circuit court of Du Page County is reversed.

Reversed.

SEIDENFELD, P. J., concurs.

Mr. JUSTICE UNVERZAGT,

dissenting:

I respectfully dissent from the opinion of the majority. The majority’s assertion that providing a secure place to eat lunch without interference from others cannot be considered an educational process is but an ipse dixit.

Leonard Roberts, superintendent of schools at School District No. 44, testified that two-thirds of the student body goes home for lunch and one-third of the student body remains in the schools; that students who stay at school for their lunch are supervised by persons employed by the school district for that purpose. They are lay people, nonteachers or non-certified people, in most instances. These persons watch the lunchroom while the students are eating, and then watch the playground or some other recreational area between the time the children are finished eating lunch and the time that class is taken up again after lunch. The duties of the lunch-time supervisors are to make sure that the youngsters are able to eat in an atmosphere where they aren’t harassed and where the children can eat and have a reasonably wholesome type of lunchroom period. The supervisors discipline the children when necessary. When the children are on the playground the supervisors make sure that the youngsters play in an organized way; they make certain no one is injured and resolve any minor student disputes that arise in the process of playing the games. Mr. Roberts characterized this as a baby-sitting service for the youngsters who stay for lunch.

Harold C. Wright, regional superintendent of schools of Du Page County, testified that the District No. 44 lunchroom program provides for the further social maturation of students. It helps them to learn to get along with their peers; that is one of the results school administrators hope to accomplish.

It seems to me that supervision of children during the school day, and creating an atmosphere where they are not harassed and where they have a reasonably wholesome atmosphere, and providing for discipline and play in an organized way, and making sure the children are not injured and minor student disputes are resolved, all in a manner which provides for further social maturation, are “instructional” matters, well within the educational services and goals of the public school.

The Constitution of this State provides:
° ° Education in public schools through the secondary level shall be free. * ° Ill. Const. 1970, art. X, §1.

In explaining this provision, the Education Committee of the Sixth Illinois Constitutional Convention submitted its proposal which was adopted by the committee as a whole. That proposal included the following:

“The third paragraph contains two parts: •
(1) It requires that public schools through the secondary level shall be free. The Committee considers it necessary that the Constitution state, in explicit terms, the obligation of the State to provide free public schools for what has traditionally been considered common school education. ° ° °.
* * * It would, however, require that whatever educational programs are established as part of the public school system through the secondary level be free of tuition charges for resident pupils.” 6 Record of Proceedings, Sixth Illinois Constitutional Convention 235.

Tuition is defined as “the price of or payment for instruction.” (Webster’s Third New International Dictionary 2461 (1966).) It seems to me that the fee charges here in issue can be considered “the price of or payment for instruction”; instruction in the art of civilized living during the noon hour. As such, these fees are prohibited by the constitutional mandate of “free” schools.

I agree with the trial judge that a school district undertaking to provide school lunch services may not charge for the use of the facilities or the supervision of the children making use of those facilities.

I would affirm the court below.


author: Mr. JUSTICE LINDBERG

text:
    LOIS A. FITZGERALD, Plaintiff-Appellee, v. ROBERT J. THEISEN, Defendant-Appellant.
    Second District
    No. 81-197
    Opinion filed October 21, 1981.
    Richard D. Schiller, of Goldsmith, Thelin, Schiller & Dickson, of Aurora, for appellant.
    David P. Peskind, of Aurora, for appellee.
   Mr. JUSTICE LINDBERG

delivered the opinion of the court:

Defendant appeals from an order of the Circuit Court of Kane County granting plaintiff’s petition to modify child support payments arising out of a paternity action. We reverse.

On April 25, 1972, plaintiff Lois A. Fitzgerald, brought a paternity suit against defendant Robert J. Theisen, charging that he was the father of her child born out of wedlock on August 18, 1971. In an effort to compromise their dispute the parties signed a stipulation on October 10, 1972, which provides in relevant part:

“B. That Robert J. Theisen shall pay to the plaintiff the sum of twenty dollars ($20.00) per week as and for child support, beginning August 14, 1972 and continuing until further order of the Court.
C. That Robert J. Theisen shall pay to Lois A. Fitzgerald the sum of eight hundred eighteen and 30/100ths dollars ($818.30) as for maternity expenses incurred.
D. That Robert J. Theisen shall pay all unusual medical bills and expenses for the minor child, Robert Fitzgerald.
E. That Robert J. Theisen shall pay to Lois A. Fitzgerald as and for partial attorneys’ fees the sum of four hundred fifty dollars ($450.00) plus cost of suit.
F. This Court retains jurisdiction of the above cause for the purpose of enforcing the provisions of Paragraphs B, C, D, and E above.”

The trial court approved the settlement and entered an order October 10, 1972, nunc pro tunc August 14, 1972.

Plaintiff filed a petition to modify the child support provision of the stipulation on December 27, 1978, alleging that changed circumstances subsequent to the order of October 10, 1972, required that the support payments be increased for the best interest and welfare of the child. Defendant filed a motion to strike arguing that the stipulation as adopted by the court was a final order not subject to modification. The defendant’s motion to strike was granted on March 8,1979. The plaintiff did not file a motion to reconsider or an appeal.

December 4, 1980, the plaintiff filed a second petition to modify the child support order by reason of changed circumstances. The trial court denied the defendant’s motion to strike and found that the child support order of October 10, 1972, was subject to amendment and modification giving rise to this interlocutory appeal.

The issue presented for review, which is one of first impression, is whether a trial court retains authority to modify a child support provision in a paternity settlement whére the defendant has not acknowledged in the settlement that he is the father of the child nor has he been adjudged the father.

The amount of support comes within the purview of section 9A of the Paternity Act (Ill. Rev. Stat. 1977, ch. 40, par. 1360) because the putative father hás not acknowledged paternity and he has entered into a settlement with the party bringing the action. Fink v. Roller (1979), 76 Ill. App. 3d 818, 395 N.E.2d 617 (dictum).

Section 9A states:

“In cases where the putative father has not acknowledged paternity and where the parties have requested a settlement, the court shall review the proposed settlement in light of the allegations made, the probable evidence and the circumstances of the parties. If the court is satisfied the best interests of the child and of the parties will be served by entry of an order incorporating the settlement, and if it is satisfied that the financial security of the child is adequately provided for and that the child and its mother are not likely to become public charges, it may enter an order to that effect. The order may be directed to the defendant, or the mother, or both.” Ill. Rev. Stat. 1977, ch. 40, par. 1360.

The plaintiff asserts that settlement agreements entered under section 9A are amendable after the order approving the settlement becomes final. We disagree.

Application of a well-known principle of statutory construction provides resolution of the problem at hand. In order to ascertain legislative intent, the court must look to the language and provisions of the whole act. (Swan v. Mulherin (1896), 67 Ill. App. 77.) By contrast with the above quoted provisions of section 9A, section 9 provides in relevant part:

“Except where a settlement order has been entered as provided in Section 9A of this Act, the court shall retain jurisdiction of the cause and may, upon proper prior written notice of the hearing to the parties in interest, make new or supplementary orders for the support, maintenance, education and welfare of the child as from time to time the court deems necessary * * Ill. Rev. Stat. 1979, ch. 40, par. 1359.

Read in pari materia, sections 9 and 9A establish a legislative design wherein fathers who have either acknowledged paternity or have been adjudicated the father are subject to supplementary orders for support, maintenance, education, and welfare of their children under section 9. Putative fathers who have not acknowledged paternity and have not been adjudicated the father of the child but enter into settlements with the mother are not subject to supplementary orders. While section 9a makes no reference to the nonmodification of these settlement orders the expression in section 9 “[ejxcept where a settlement order has been provided in Section 9A of this Act, the court shall retain jurisdiction of the cause e # ”” makes it clear that the legislature intended to deprive courts of jurisdiction to modify section 9a settlement orders such as the one in the case at bar.

We conclude that absent statutory authority the court is without jurisdiction to amend the support provision of the original order. We therefore reverse.

We would observe that our holding is supported by public policy in this State which favors settlements and dictates that, in the absence of fraud or duress, settlements once made should be final. Culbertson v. Carruthers (1978), 66 Ill. App. 3d 47, 383 N.E.2d 618. -

Reversed.

SEIDENFELD, P. J., and HOPE, J., concur.