author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Heard, Defendant-Appellant.
    (No. 71-217;
    Fifth District
    March 16, 1973.

      Robert E. Farrell, of Defender Project, of Mt. Vernon, (James R. Homola, Senior Law Student, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   PER CURIAM:

Petitioner pleaded guilty in St. Clair County to armed robbery and was sentenced to four to five years in the penitentiary pursuant to a plea agreement. Petitioner subsequently filed a pro se post-conviction petition alleging that the sentence should be reduced; counsel was appointed to represent him. At the argument on the State’s motion to dismiss, counsel for petitioner stated that after consulting with petitioner, petitioner’s trial counsel and friends and relatives of petitioner having knowledge of the circumstances, and after reviewing the record, he did not believe that an issue of constitutional dimension existed. The petition was dismissed and petitioner appeals. New counsel was appointed to represent the petitioner on this appeal.

Petitioner claims that his sentence lacks proper indeterminacy and is excessive in that it does not take into account the possibilities for rehabilitation of the offender as required by the Illinois Constitution. (Ill. Const, art. I, sec. 11.) The Supreme Court of Illinois has held that lack of indeterminacy of sentence is not an issue of constitutional magnitude. (People v. Shaw, 49 Ill.2d 309, 273 N.E.2d 816; see also People v. Wisdom, 6 Ill.App.3d 840, 286 N.E.2d 749.) The appellate courts have held that, where the sentence imposed is within statutory limits, the severity of the sentence raises no constitutional question (Fortson v. People, 8 Ill.App.3d 613, 291 N.E.2d 45; People v. Lee, 5 Ill.App.3d 421, 283 N.E.2d 740; People v. Murry, 5 Ill.App.3d 69, 283 N.E.2d 98). We thus conclude that petitioner does not state a substantial constitutional claim as required by Ill. Rev. Stat. 1969, ch. 38, par. 122 — 1, and that the trial court’s dismissal of the petition was proper.

Petitioner also claims that he was denied effective assistance of counsel in the preparation and advocacy of his post-conviction petition. An attorney appointed to represent a petitioner in a post-conviction action is required to consult in person or by mail with the petitioner, examine the trial proceedings, and correct any deficiencies and make any amendments necessary to the pro se petition. Compliance must be shown by the record. (Ill. Rev. Stat. 1969, ch. 110A, par. 651(c).) It is clear from the record in the instant case that petitioner’s court-appointed attorney complied with these provisions, consulting with petitioner’s trial counsel, friends and relatives, and making an independent investigation of the claims. It was not improper for him to then concur in the petition.

Petitioner further claims that counsel was incompetent in not pursuing other available modes of relief. Supreme Court Rule 606(c) (Ill. Rev. Stat. 1969, ch. 110A, par. 606(c)) provides that the appellate court may grant leave to file late notice of appeal within six months of the expiration of the time for perfecting appeals, upon a showing by the defendant that the appeal has merit and that the delay was not due to his culpable negligence. Petitioner in this case claims that the attorney appointed for post-conviction representation should have pursued the path of direct appeal as well, and that failure to do so constituted incompetency which has substantially prejudiced the petitioner. Although, at tire time counsel was appointed, the time for filing a late notice of appeal had not expired, counsel's failure to do so is not sufficient incompetency to reverse. (People v. Roebuck, 7 Ill.App.3d 7, 286 N.E.2d 149.) After careful consideration of the record before us, we conclude that petitioner received the full benefit of competent counsel in the prosecution of his post-conviction petition.

For the reasons set out above, the circuit court judgment dismissing the post-conviction petition is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Anthony Spicuzza, Defendant-Appellee.
    (Nos. 71-340-341 cons.;
    Fifth District
    March 16, 1973.

      Robert H. Rice, State’s Attorney, of Belleville, for the People.
    No appearance for appellee.
   PER CURIAM:

On December 14, 1970, defendant was indicted for the offense of theft of over $150.00. On December 18, 1970, defendant plead not guilty in the Circuit Court of St. Clair County. The case was called for trial on March 22, 1971, but defendant failed to appear. A bench warrant was issued for his arrest and he was finally taken into custody on June 11, 1971. On July 26, 1971, defendant was indicted for another offense of theft over $150.00. On July 19, 1971, seven days before this second indictment, a hearing was had on a motion to withdraw filed by defendant’s counsel. Defendant informed the Court that he had discharged his counsel and talked to another attorney. The defendant did not move for a continuance at this hearing. On its own motion, the court then said that it was appointing the Public Defender to represent him temporarily and told defendant to get in touch with his retained counsel and tell him to be ready for trial in September.

Both cases were set for trial on October 4, 1971; on that date defendant moved, pursuant to Section 114 — 5, Code of Criminal Procedure, for substitution of judges. The motion was granted on the same day. On October 6, 1971, defendant made a motion for discovery containing ten requests. It does not appear from the record what disposition, if any, the court made with this motion. On October 12, 1971, defendant made a motion to dismiss both indictments on the ground that he had not been brought to trial within 120 days of his incarceration and was thus entitled to dismissal pursuant to Ch. 38, Section 103 — 5. The motion was granted, and the sole issue on this appeal is whether the court erred in granting the motion.

Ch. 38, Section 103 — 5(a) provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, * *

The State claims that the motion for substitution of judges and the motion for discovery constitute delays caused by defendant and therefore the court below erred in dismissing the indictments. It is true that in the cases cited by the State, delays caused by a defendant’s motion for discovery or a bill of particulars were chargeable to the defendant. However, in those cases actual delay occurred because of the motions. In this case, however, the record is silent as to the court’s disposition of the motion for discovery, and we cannot presume delay from a silent record. For all we know, the court might have summarily dismissed defendant's motion thereby causing no delay. Where as some cases have held that the mere filing of a motion tolls the statute, we think the better rule is that actual delay must occur before the statute is tolled, especially in light of the language of Section 103 — 5(a) that delay must be occasioned by defendant. (See also People v. Hill (1971), 3 Ill.App.3d 286, 278 N.E.2d 441.) As the motion for substitution of judges was granted on the same day presented, and no change of venue was required by the substitution, no delay chargeable to the defendant is shown to have arisen from the substitution under these circumstances. People v. Hatchett (5th District, 1967), 82 Ill.App.2d 40, 226 N.E.2d 97, 101.

Delay of the trial date to allow defendant more time in which to confer with his new counsel was at the behest of the court itself and not attributable to defendant. People v. Wyatt (1962), 24 Ill.2d 151, 180 N.E.2d 478, 479; People v. Hatchett, supra.

In ruling on the motion to dismiss the indictment, the trial court did not find any delay attributable to the defendant. The findings of that court are supported by the record and the judgment is consistent with the applicable rules of law; we therefore affirm the judgment.

Judgment affirmed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Shadowens, Defendant-Appellant.
    (No. 72-174;
    Fifth District
    March 16, 1973.
    Kenneth L. Jones, of Defender Project, of Mt. Vernon, for appellant.
    Kenneth Powless, State’s Attorney, of Marion, (Snyder Howell, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM:

This is an appeal from an order of the circuit court of Williamson County revoking appellant’s probation and imposing a sentence of one to three years’ imprisonment. Appellant Larry Shadowens pleaded guilty to aggravated assault and was placed on probation for two years under the conditions of chapter 38, section 117 — 2(a) (1 — 4), Illinois Revised Statutes, including the provision against further violation of the law. Four months later a petition for revocation of probation was filed, alleging the commission of a second aggravated assault. A hearing was conducted at which facts indicating two incidents of assault were presented. In the first incident the complaining witness, Marvin Chamness, and one Norma Headrick Leonard appeared about 3:30 A.M. at the home of Jerry Nicholson, where her husband, John Leonard, and appellant were staying. Mrs. Leonard demanded that Leonard take her to his house to get clothes allegedly hers. Chamness and Mrs. Leonard were refused entry and asked to leave the premises. The dispute grew more heated, and Mrs. Nicholson handed appellant a shotgun belonging to her husband. When appellant appeared carrying the gun, Chamness and Mrs. Leonard retreated. Leonard claimed to have been too drunk to recall the incidents.

About noon that same day, Chamness appeared at Leonard’s house with a man identified only as Tony to retrieve Norma Headrick’s car which was stalled there during a previous attempt by her to retrieve her clothes. As Chamness approached, he saw Leonard and Shadowens on the front porch of Leonard’s house. Chamness claimed that he raised the hood of the car, noticed that the coil wire was missing and looked again toward the porch, at which time he saw both Leonard and Shadowens pointing guns at him. Chamness stated that he was not armed and had to crawl behind the car as Tony drove it down the street until he could safely leave.

Shadowens claimed that upon finding the wire missing Chamness drew a pistol from his pocket. At this, Leonard, still drunk, picked up the shotgun and pointed it as Chamness and Shadowens took the gun away from Leonard to prevent violence. Shadowens stated that he pointed the gun at Chamness only while trying to engage the safety and that Chamness had then retreated. The sole impartial witness, a next-door neighbor, testified that she saw both Shadowens and Chamness with guns but was not sure who had “drawn” first. She further stated that Chamness quickly returned the gun to his pocket and crawled beside his car until he could stand out of the range of the shotgun. From this testimony, the trial judge found a probation violation and sentenced appellant to one to three years in prison.

Appellant claims that the trial court erred in finding a probation violation from the evidence presented. The State must prove a violation of probation not beyond a reasonable doubt but by a preponderance of the evidence. (People v. Crowell, 1 Ill.App.3d 868, 276 N.E.2d 509; People v. Dotson, 111 Ill.App.2d 306, 250 N.E.2d 174.) The credibility of witnesses and the weight to be given their evidence are matters for the finder of fact and should not be disturbed except where the evidence is so unsatisfactory as not to sustain the burden of proof. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) In the instant case the judge clearly considered all the evidence and made a factual finding that appellant did point the gun at Chamness and was not at all times acting properly within the scope of self-defense and did, in fact, commit an aggravated assault in violation of his probation. The trial judge undoubtedly had the best opportunity to hear the evidence, observe tire demeanor of the witnesses, and make tire factual determinations. The use of his discretion was not arbitrary here and will not be overturned by this court. People v. Crowell, 1 Ill.App.3d 868, 276 N.E.2d 509.

It is further claimed that the trial judge considered matters which were improper in that appellant had not been notified of the allegations concerning the first alleged incident. Appellant’s counsel made no objections to this deficiency at the hearing and even called as a witness Mrs. Nicholson, a resident of the trailer where the night-time incident took place. All relevant facts surrounding the case should be taken into account to determine whether the probationer has been notified of the charges against him. Even if the probationer had no notice, the proper place for objection is the revocation hearing and the issue cannot be raised for the first time on appeal. (People v. Whittaker, 101 Ill.App.2d 432, 243 N.E.2d 467; People v. Headrick, 54 Ill.App.2d 44, 203 N.E. 157.) It is clear from the record that appellant received a “conscientious judicial determination * * * made according to accepted and well recognized procedural methods.” People v. Dotson, 111 Ill.App.2d 306, 250 N.E.2d 174.

Appellant’s last contention is that even if a violation occurred the trial court abused its discretion by imposing a sentence of from one to three years.

At the time appellant was sentenced, aggravated assault carried a penalty of up to one year in a place other than the penitentiary or a fine not to exceed $1,000 or both, or one to five years in the penitentiary. (ch. 38, sec. 12 — 2(b), Ill. Rev. Stat.). The sentence imposed was clearly within those limits. However, the General Assembly has since enacted the Illinois Unified Code of Corrections in order to standardize sentences and correctional efforts. Under the new Code, aggravated assault is classified as a Class A misdemeanor, carrying a determinate penalty of up to one year imprisonment or a fine not to exceed $1,000 or both. ch. 38, sec. 1005 — 8—3 and Table IV.

The Code provides in ch. 38, sec. 1008 — 2—4 that, if the prosecution of an offense has not reached the sentencing stage or “a final adjudication,” the sentences under the Code apply if they are less than under the prior law upon which the prosecution was commenced. It is obvious that remandment of this case to the trial court for resentencing would require application of the new code in that court under the provisions of ch. 38, sec. 1005 — 5—4. In People v. Barkley, 1 Ill.App.3d 161, 273 N.E.2d 74, and People v. McCloskey, 2 Ill.App.3d 892, 274 N.E.2d 358, identical language in the Cannabis Control Act was held to require application on the newer sentencing provisions, on the theory that a case pending on appeal had not reached “a final adjudication” for sentencing purposes. The Appellate Court for the Fourth District has recently held that the provisions of the Unified Code of Corrections are applicable to cases on appeal. (People v. Lobb, 9 Ill.App.3d 650; People v. Mize, 9 Ill.App.3d 647). We find the logic of these cases to be persuasive, and we hold that the sentencing provisions of the Illinois Unified Code of Corrections are applicable. Accordingly, the judgment in this case is affirmed and the sentence modified to a term of one year.

Affirmed and modified.


author: Mr. JUSTICE JONES

text:
    Robert Turner, Plaintiff-Appellee, v. George Boston, Defendant-Appellant.
    (No. 71-227;
    Fifth District
    March 21, 1973.

      Eldon Durr, of Durr & Durr, of Edwardsville, for appellant.
    William F. Kinder, of Kinder, Scroggins & Kinder, of Granite City, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

The defendant appeals from a judgment rendered on a jury verdict for the plaintiff in an action based upon a partly written and partly oral contract for sale of a backhoe.

In his brief here, defendant raises five points: (1) error in refusing to submit defendants counterclaim to the jury; (2) error in dismissing the counterclaim; (3) error in refusing judgment notwithstanding the verdict; (4) the verdict was greater than the amount claimed or shown by the evidence; (5) error in denying defendant right to argue repossession. Of these points only number (3) and (5) are mentioned in the post-trial motion.

It is a long standing policy of courts of appeal not to consider contentions which are not submitted to tire trial court. Therefore, as to those points made here which were not included in the post-trial motion, the defendant cannot rely upon them here. See Janisco v. First National Bank of Lockport, 311 Ill.App. 296, 35 N.E.2d 828; Illinois Law & Practice, Appeal and Error, sec. 297.

By reason of the foregoing, we may not consider the alleged errors in refusing to submit the counterclaim, in dismissing the counterclaim, and that the verdict is greater than the complaint or evidence supporting it.

The defendant does not include any portion of the argument in his abstract, and we are pointed to no place by the statement of facts where the court refused to allow the defendant to argue the matter of repossession.

Since the defendant has not included the matter of the refusal of argument in his post-trial motion, abstract, or appeal, we may not consider this point. The failure to abstract the record on this point is sufficient to deny the contention. See Elfgen v. Noll’s Ice Cream & Frozen Food Co., 131 Ill.App.2d 1066, 267 N.E.2d 731; Zechman v. Zechman, 391 Ill. 510, 63 N.E.2d 499.

The denial of judgment notwithstanding the verdict, although the defendant again fails to appeal from the order denying the post-trial motion which included a request for judgment notwithstanding the verdict, may be disposed of by the statement, made four times by the defendant in his argument here, that “the evidence and the law further demonstrated that, at the most, plaintiff was entitled to a recovery of $1,548.45.” The argument of the defendant is that the verdict was excessive in amount. This is not an argument which supports the contention of error on the part of the court in denying fire motion for judgment notwithstanding the verdict. If such a contention had been made to the trial court in the post-trial motion, which it was not, the most the trial court could have done would have been to permit a new trial in whole or in part. The concession that the plaintiff was entitled under the law and evidence to a judgment in a lesser sum effectively disposes of a claim of error in denying judgment notwithstanding the verdict.

There are other grounds which would require affirmance but for the foregoing reasons we deem it unnecessary to discuss them here.

Judgment affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Thompson, Defendant-Appellant.
    (No. 72-70;
    Fifth District
    March 21, 1973.

      Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Ronald A. Niemann, State’s Attorney, of Salem, for the People.
   PER CURIAM:

The defendant pled guilty to a charge of forgery.

Defendant contends in this appeal that the trial judge failed to comply with Supreme Court Rule 402(a)(3) and (4) and 402(b).

The record reveals that the defendant was not informed that he had a right to plead not guilty as required by Supreme Court Rule 402(a)(3); that if he did plead guilty he waived the right to be confronted by the witnesses against him as required by Rule 402(a) (4); and that the trial court did not question the defendant personally, in open court, to determine whether any force or threats or any promises were used to obtain the plea as required by Rule 402(b).

For the foregoing reasons the judgment of the trial court is reversed and this case is remanded to the Circuit Court of Marion County with directions that defendant be permitted to plead anew if he so desires.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Lee Williams, Defendant-Appellant.
    (No. 72-78;
    Fifth District
    March 22, 1973.

      Mathew J. Moran, of Defender Project, of Chicago, (Robert E. Farrell, of counsel,) for appellant.
    R. W. Griffith, State’s Attorney, of Edwardsville, (James W. Jerz and James A. Murphy, both of Model District State’s Attorneys Office, of counsel,) for the People.
   PER CURIAM:

Defendant appeals from a judgment of the circuit court of Madison County sentencing him to imprisonment for a minimum of 20 and a maximum of 30 years, following a trial by jury and a verdict of guilty of the crime of murder.

The facts indicate that the defendant and some friends were drinking in a local tavern. After defendant caused a disturbance, he was forcibly ejected from the premises. He attempted to re-enter but was again ejected. The testimony varies as to whether he was beaten and thrown out, or merely escorted to the door. The evidence is also in conflict as to whether, and to what degree, he was intoxicated, although it is undisputed that he had been drinking for several hours.

Defendant was driven to his home where he obtained a gun, and returned to the tavern despite his friends’ attempts to dissuade him. He forced a former patron to knock on the door of the tavern and inform the occupants that defendant would shoot the first person to come through the door. The deceased attempted to exit, was shot in the stomach and subsequently died. The defendant fled the scene in an automobile.

On appeal, the defendant contends that the trial court exceeded its power in forcing him to trial for the offense of murder; that his expert psychiatric witness was improperly impeached at the State’s closing argument, which was so inflammatory as to deny defendant a fair trial; and that the court’s failure to give an instruction on voluntary manslaughter notwithstanding defendant’s objection was reversible error.

The defendant argues that he was “forced” to go to trial for murder since three circuit court judges, consecutively, refused to accept his plea, of guilty. This plea was based on an agreement with the state’s attorney that defendant would plead guilty to voluntary manslaughter and the state’s attorney was to recommend a sentence of 5 to 15 years. An examination of the record reveals that the judges properly refused to accept the guilty plea, in accordance with Supreme Court Rule 402(d)(3), as the defendant indicated that he wished to plead guilty only if the judge bound himself to the agreement between defendant and the state’s attorney. A judge is not, and cannot be, so bound. The state’s attorney has the discretion in many cases to determine file offense with which a defendant shall be charged. The judiciary has the power and the discretion to determine the severity of the sentence, should defendant be found guilty. These powers overlap, but they do not conflict. The trial court was entirely within the proper scope of its discretion when it determined that it would not be bound by the proposed agreement.

In his closing argument, the prosecutor argued that the defendant’s expert psychiatric witness was not to be believed, since his testimony was based on a hypothetical question which assumed facts not in evidence and contained facts which had been refuted. His rhetoric included the following statements:

“* * * you know why it offends me? Because I don’t like to be made a fool out of, and I don’t like to see anybody try to make fools out of you # I thought that testimony was so preposterous to reasonable people that I don’t think it was worthy of a reply * * *. I have too much respect for each of you to even consider the fact that that would be influential upon you having heard all the evidence in the case * *

The defendant argues that such statements suggested that the psychiatrist’s testimony was a total fabrication intended to confuse and mislead the jury. Even if we assume that the prosecutor’s comments were improper, we cannot find that these statements were so seriously prejudicial as to deprive the defendant of a fair and impartial trial. In the absence of such a finding, the defendant’s argument on this point cannot be continued here, as there was no objection made at trial and no mention of the statements was made in post-trial motions. People v. Wilson, 342 Ill. 358, 174 N.E. 398; People v. Fort, 14 Ill.2d 491, 500, 153 N.E.2d 26, 31.

Finally, the defendant argues that an instruction on voluntary manslaughter should have been given to the jury, over defendant’s own objections. The record reveals that the trial judge suggested the advisability of such an instruction, but the defendant felt that it should not be submitted, indicating that he felt that the charge was “murder or nothing.” This situation was dealt with in People v. Brown, 130 Ill.App.2d 672, 267 N.E.2d 16, in which the Fourth District held that failure to give of such an instruction sua sponte, over the defendant’s objection, was within tire discretion of the trial court. The trial judge may, in such a situation, give considerable weight to the wishes of the defendant. (People v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266, 271.) There is sufficient evidence in the record to support findings of both murder and manslaughter. It cannot be said that the trial court abused its discretion in this regard.

Appellant does not raise the propriety of the sentence in his appeal. However, this Court has determined that the provisions of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1001 — 1—1 et seq.) are applicable to currently pending appeals from sentences imposed under prior statutes. The Code provides that the maximum sentence for murder may be any term in excess of 14 years; the minimum term shall be 14 years unless the Comt, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.

• In view of the changes effected by the new Code and the seriousness of the offense, we affirm the conviction and remand the cause to the circuit court of Madison County for reconsideration of the minimum sentence.

Affirmed in part, remanded in part with directions.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
      In re Estate of Barbara Ammott Fuller, Deceased—(Lucille R. Lair et al., as Exrs. under the Will of Barbara Ammott Fuller, Deceased, Plaintiffs, v. Jerseyville Community Hospital et al., Defendants.) Jerseyville Community Hospital and Boyd Memorial Hospital, Appellants, v. Lucille R. Lair et al., as Exrs. under Will of Barbara Ammott Fuller, Deceased, and Passavant Memorial Area Hospital Association, Appellees.
    (No. 11789;
    Fourth District
    March 21, 1973.
    Schwarz & Self, of Jerseyville, and McDonald and Strickland, of Carrollton, both for appellants.
    Bellatti, Fay & Bellatti, of Jacksonville, for appellees.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal by the Jerseyville Community Hospital and the Boyd Memorial Hospital from an order of the circuit court of Calhoun County construing the will of Barbara Ammott Fuller. The action was originally brought by Lucille Lair and the Commercial National Bank of Peoria, as co-executors of the will of testatrix, for a construction of the residuary clause. The trial court .found that a proper construction of the will required that one-third of the residuary estate should pass to Passavant Memorial Area Hospital Association. The trial court noted that the doctrine of cy pres, although unimportant to this decision, could be employed to obtain the same result if it were held impossible to carry out the specific wish of testatrix. The trial court has filed a comprehensive opinion.

Clause VI of the testatrix’s will reads as follows:

“All the rest, residue and remainder of my property, of every kind and nature whatsoever, real or personal, I direct my Executor to convert into cash and divide the same into three (3) equal parts, giving one (1) part to the JERSEYVILLE COMMUNITY HOSPITAL of Jerseyville, Illinois; one (1) part to the OUR SAVIOUR’S HOSPITAL of Jacksonville, Illinois; and one (1) part to BOYD MEMORIAL HOSPITAL of Carrollton, Illinois.”

Testatrix’s will was executed May 17, 1962, and two codicils were added in 1965. Barbara Fuller died on February 6, 1969. At the time of the execution of the will, Our Saviour’s Hospital and Passavant Memorial Area Hospital Association were operating acute care facilities in the City of Jacksonville, Illinois. Subsequently, Our Saviour’s Hospital changed its name to Holy Cross Hospital. Then, in June 1968, articles of merger were executed, and Holy Cross agreed to merge with Passavant as of July 1, 1968. Thereafter, Holy Cross ceased to operate as a separate corporate entity. Passavant was tire surviving corporation, and Holy Cross was renamed the Frank A. Norris Hospital. The two hospitals are now operated by Passavant as one unit. Boyd Memorial and Jerseyville Community Hospital argue on appeal that the portion of the residuary estate left to Our Saviour’s Hospital lapsed since it was not in existence at the time of the testatrix’s death. It is contended that this portion should pass to the remaining residuary legatees under the Anti-Lapse statute. (Ill. Rev. Stat. 1967, ch. 3, par. 49.) The issue on appeal is whether or not the trial court was justified in finding that one-third of the residuary bequest designated for Our Saviour’s Hospital should pass to Passavant Memorial Hospital Association.

The Anti-Lapse statute refers to persons rather than corporations. However, the parties agree that Illinois Revised Statutes, 1967, ch. 131, par. 1.05, supports a construction of the word “person” or “persons” as applying to bodies politic and corporate as well as individuals.

After the merger, Passavant used the buildings of Holy Cross Hospital and operated as a single unit. Passavant had complete managerial control. Ninety-four per cent of the employees of Holy Cross remained in the employment of Passavant. The director of nurses at Holy Cross remained although the majority of sisters engaged in the operation of that hospital left. The administrator of Passavant took over the duties as director of each hospital after the merger. Holy Cross Hospital maintained its x-ray unit, pharmacy, and dietary facilities. The food service catering to both hospitals before the merger remained afterward. Patients continued to have their choice of selection between the hospitals.

Section 42(d) of the Illinois General Not-For-Profit Corporation Act (Ill. Rev. Stat. 1967, ch. 32, par. 163(a)41(d)) provides for the effect of merger as follows:

“Such surviving or new corporation shall thereupon and thereafter possess all the rights, privileges, immunities and franchises of each of the merging or consolidating corporations; and all property, real, personal and mixed, and all debts due on whatever account, and all other choses in action and all and every other interest, of or belonging to or due to each of the corporations so merged or consolidated, shall be taken and deemed to be transferred to and vested in such single corporation without further act or deed; and the title to any real estate, or any interest therein, vested in any of such corporations shall not revert or be in any way impaired by reason of such merger or consolidation.”

The statute was construed in Chicago Title & Trust Co. v. Zinser, 264 Ill. 31, 105 N.E. 718, where the testator in his will named the Real Estate Title and Trust Company as executor with power to sell. After the execution of the will and before the death of the testator, Real Estate Title and Trust consolidated with the Chicago Title and Trust Company. The new corporation was known as the Chicago Title and Trust Company. The supreme court of Illinois considered the effect of the consolidation on the powers granted in the will. In upholding the power of Chicago Title and Trust to act as executor, the supreme court said:

“A corporation is without personality, and if it is selected as trustee or executor there can be no reliance upon individual discretion or even upon the continuance of the same administration. Etta Nelson, in naming the Real Estate Title Company as executor and trustee, knew that its directors, officers and stockholders might change from time to time, and that the statute authorized a change of name or place of business, enlargement or change of the object for which the corporation was formed, an increase or decrease of capital stock or change in the number of shares or par value, increase or decrease of the number of directors, and the consolidation of the corporation with any other corporation then existing or that might thereafter be organized. She therefore contemplated that these changes might occur and that the Real Estate Title and Trust Company might be consolidated with some other corporation such as the Chicago Title and Trust Company, and that it would thereby cease to exist and become a component part of a new corporation. A consolidation took place and a new corporation was created from the original corporations, with an enlarged capital stock and unimpaired franchises. The appellee was entitled to execute the trust * # pp. 35,36.

The appellate court of Indiana later construed the statute in Bible Institute Colportage Ass’n v. St. Joseph B. & T. Co., 118 Ind.App. 592, 75 N.E.2d 666, where the testatrix left the residue of her estate in trust to the Bible Institute Colportage Ass’n of Chicago for the “publication and dissemination of Evangelical Christian literature”. Prior to the testatrix’s death, a merger occurred between Colportage and the Moody Bible Institute. The name of the new corporation was Moody Bible Institute. The court affirmed the ruling of the trial court, holding that the Moody Bible Institute had the power to execute the trust established in the residuary clause of testatrix’s will. The court cited Zinser stating that the expressed intention and charitable purpose of the testatrix could be carried out by the new corporation. Although the former corporations in Zinser and Bible Institute ceased to exist as separate entities following mergers with other corporations, certain powers belonging to the former corporations were found to be maintained by the new ones.

In First national Bank v. King Edwards Hospital Fund, 1 Ill.App.2d 338, 117 N.E.2d 656, the court considered the construction of provisions of a charitable trust. The will provided for bequests to four different hospitals in England. Following the death of the testator, the hospitals were nationalized. In determining whether the bequest to the hospitals failed, the court stated that the test was whether the charitable purpose of the gifts could be fulfilled. This was answered in the affirmative. The court reasoned that the hospital after nationalization was still functioning as a hospital, serving substantially the same people, and furnishing the same kinds of services. The court stated at page 352 of the opinion, “* * * In no substantial sense can it be said that the hospitals have ceased to exist. * * The reasoning in the above case is applicable here. After the merger, Passavant was still functioning as a hospital furnishing the same services to the same group of people served by Holy Cross Hospital. In no substantial sense had Holy Cross Hospital ceased to exist although it functioned under a new management.

In the case of In re Hagans Will, 234 Iowa 1001, 14 N.W.2d 638, the supreme court of Iowa considered the construction of a will where the testatrix had left the remainder of her estate in trust to Drake University and Penn College. Testatrix further provided, “should either Drake University or Penn College cease to exist, the income from said trust fund shall be turned over to the surviving institution for the purpose above set forth ° Penn College experienced financial difficulties following the Depression. In 1933, Penn College leased its property to a new corporation named William Penn College, which assumed management and control of the institution. The trial court held that Penn College ceased to exist on June 5, 1933 at the time of the new incorporation; thus, Drake was to receive the portion designated for Penn College. In reversing the decision of the lower court, the court found that “ceased to exist” meant “cease to exist as an educational institution.” Penn College had not ceased to exist as an educational institution. The change in name was not important nor was the fact that a new corporation had taken over legal title and business management of the college. (See also Wesley Home, Inc. v. Mercantile Safe Deposit & Trust Co., 289 A.2d 337; In re Estate of Daley, 433 P.2d 296; and Bell v. Carthage College, 103 Ill.App.2d 289, 243 N.E.2d 23.) Similarly, the structural and management changes in Our Saviour’s case are not important in determining Passavant’s ability to carry out the purposes of the bequest. We find the case of Curators of University of Missouri v. University of Kansas City, 442 S.W.2d 66, neither persuasive nor binding on this court. However, the dissent in the Missouri case followed the reasoning in In re Hagans Will.

The cardinal rule of construction is to ascertain the intention of the testator from the will as a whole and to give effect to it, unless the intention is contrary to law or public policy. (Martin v. Martin, 273 Ill. 595, 113 N.E. 150.) Barbara Ammott Fuller was bom in Kampsville, Illinois in 1873 and retired there in 1941. Testatrix’s husband had been a patient at the Jerseyville Community Hospital, and testatrix had been a patient in the Holy Cross and Boyd Memorial hospitals, although she had never lived in the communities in which these hospitals were located. During the time Holy Cross was named Our Saviour’s Hospital, testatrix and her husband had been patients there. There is testimony in the record indicating that preceding her death at the age of 94, testatrix was very alert and must have known of the intended merger of the hospitals since it was announced while she was a patient at Holy Cross.

The court found that “testatrix did not intend the residue of her estate to be limited by any organizational structure, but rather it was her desire that the major portion of her estate should be used for general hospital purposes. The ultimate essence of her gift was the alleviation of human suffering and her will was designed accordingly. If she had intended any restrictions of her gift, she would have said so.” It is indeed a reasonable assumption that the testatrix knew of the merger plans and could have changed her will accordingly since she had added codicils on two occasions. The purpose of the residuary bequest can be accomplished by the institution operating now as Passavant Memorial Hospital. The decision of the trial court directing that one-third of the residue of the estate bequeathed to Our Saviour’s Hospital pass to Passavant Memorial Area Hospital Association should be and is affirmed.

Judgment affirmed.

SMITH and SIMKINS, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    Edgar County Bank and Trust Company, Guardian of the Estate of Douglas Huffman, a Minor, Plaintiff-Appellant, v. Paris Hospital, Inc., a/k/a Hospital and Medical Foundation of Paris, Inc., et al., Defendants-Appellees.
    (No. 11886;
    Fourth District
    March 21, 1973.

      John E. Norton and Edward J. Kionka, both of Belleville, and Harold M. Jennings, of Markowitz, Lawrence, Lenz & Jennings, of Bloomington, for appellant.
    Jack E. Horsley, Richard F. Record, Jr., and Stephen L. Corn, all of Craig & Craig, of Mattoon, and Robert L. Gibson, of Massey, Anderson & Gibson, of Paris, for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the comt:

On October 15, 1964, Douglas Huffman, then 17 months of age, was taken by his parents to the emergency room of the defendant hospital where, by means of a hypodermic syringe, he was administered a shot by Doctor J. H. AcHin, assisted by Nurse Augusta Bostick, both of whom were employees of the hospital. Plaintiff alleges that the hypodermic needle was improperly inserted into the lower internal quadrant of Douglas’ buttocks damaging the sciatic nerve, resulting in a foot drop, other permanent injuries and causing him to wear a leg brace.

The trial court dismissed all five counts of Plaintiff’s Third Amended Complaint, and this appeal ensued. Count I was directed against the Hospital and based on the doctrine of respondeat superior involving negligent acts or omission of its employee, Doctor Acklin. Count II was also directed against the Hospital under the respondeat superior theory predicated upon acts and omissions allegedly attributable to its employee, Nurse Bostick. Count III, directed against the Hospital, was based on the negligence of the Hospital for its alleged failure to properly operate its emergency room and failure to provide employees who were qualified to give injections. Also commingled with this theory was a respondeat superior charge involving the acts of Doctor Acklin and Nurse Bostick. Count IV was against the Hospital and was grounded on the doctrine of res ipsa loquitur, alleging that the emergency room was in the exclusive control of the Hospital whose duty it was to use reasonable care so “the occurrence speaks for itself’. Count V was directed against Nurse Bostick and charged that she failed to properly hold, position and restrain the minor plaintiff; failed to warn the doctor that the shot was being improperly administered and failed to warn the plaintiff’s parents of the hazards entailed.

The chronology of events preceding the order appealed from are as follows:

On December 20, 1966, pursuant to the wishes of his parents, the Edgar County Bank was appointed as Guardian for the minor plaintiff. During the hearing, William A. Huffman, plaintiffs father, stated to the Court that Douglas’ parents had discussed, and decided to accept, a recommendation of the Bank that the claim against Doctor Acklin (against whom counts in complaints preceding the Third Amended Complaint had been directed) be settled for $25,000, but that another suit against the Hospital was pending. On the same day, the guardian Bank filed a petition seeking the court’s authorization to settle the suit against Doctor Acklin with the approval of Douglas’ guardian ad litem. This action was taken pursuant to ch. 3, par. 215, Ill. Rev. Stat. 1966, which provides that by leave of court a guardian may compromise a claim of the ward in any personal estate such terms as the comt directs. This petition stated that a settlement with Doctor Acklin would compromise plaintiff's cause of action against him. for the sum of $25,000; the compromise to be effected by means of a covenant not to sue the doctor, but “* * * which will leave as a remaining defendant, the Paris Hospital, Inc., a/k/a the Hospital and Medical Foundation of Paris, Inc., as a party defendant in the last suit filed in this County ° On the same day, December 20, 1966, the Court entered an order authorizing the settlement with Doctor Acklin in return for $25,000. The settlement was to be accomplished by means of a covenant not to sue the doctor. The Court further ordered the guardian Bank to execute a stipulation for the dismissal of Doctor Acklin with prejudice “but with a specific understanding that such dismissal order will not in any way release or prejudice the rights of said minor child in his suit against the Paris Hospital, Inc. * * Such a stipulation dismissing Doctor Acklin was executed by the guardian Bank on December 20, 1966, and presented to Doctor Acklin. Also, on the same day, a covenant not to sue was executed. The instrument set forth the circumstances of the claim and stated that Doctor Acklin and his partnership were offering $25,000 to purchase peace and to compromise the claim “* * # recognizing that the said amount so recoverable will be far less than the full damages sustained by the parties so involved, and particularly by the said Douglas Arthur Huffman, a minor. The offer has been made and accepted on the basis that the claim remaining against the Paris Hospital, Inc., a/k/a Hospital and Medical Foundation of Paris, Inc., can be pursued on the part of said minor and that the compromising of the claim against the remaining defendants is on the basis of a covenant not to sue.” The covenant also provided that the plaintiff was accepting the $25,000 and, in return agreeing to dismiss the suit with prejudice against the doctor, but only on the express understanding that the acceptance of such payment should not be construed as a release of any other person or persons and that the guardian was expressly reserving any and all causes of action which its ward might have against the Paris Hospital. The covenant further provided that “It is expressly understood and agreed by and between the parties hereto that this agreement is solely a purchase of peace and a covenant not to sue, and shall not be interpreted as, or, construed as a legal release of any other person by any court which hereafter may be called upon for the construction of this instrument.” The stipulation above referred to further provided that the plaintiff “* * * do hereby stipulate that the above entitled cause may be dismissed with prejudice as to the Medical Center Clinic of Paris, a partnership and Doctor John Doe, a/k/a Doctor J. H. Acklin.” The stipulation for dismissal, though made and dated on December 20, 1966, (the same date of the filing and hearing on the petition to compromise the claim, the same date the court authorized the compromise and the same date on which the covenant was executed) was not presented to the court until October 25, 1967. It was, on that date, presented to the same judge who had authorized the settlement and who had presided at the proceedings had on December 20, 1966. There is an affidavit of plaintiff’ s counsel in the record that the delay in presenting the stipulation to the court was solely attributable to counsel for Doctor Acklin. The order entered by the court on October 25, 1967, merely stated “It is hereby ordered that this cause may be stricken with prejudice as to the defendants, Medical Center Clinic of Paris, a partnership, and Doctor John Doe, a/k/a Doctor J. H. Acklin.”

The trial court dismissed Count IV of the Third Amended Complaint, holding that res ipsa loquitur was not applicable to the facts plead and dismissed Counts I, II, III and V on the ground that the execution of the covenant to Doctor Acklin operated to release plaintiff’s action against the defendant Hospital under the rule set forth in Holcomb v. Flavin, 34 Ill.2d 558, 216 N.E.2d 811. The language employed by the trial judge in dismissing the five counts of the Third Amended Complaint would indicate that he employed the same reasons as pertained to his earlier dismissal of the First Amended Complaint which contained only two counts. The first count was directed against the Hospital, based on respondeat superior relating to the conduct of Doctor Acklin, and the second count was also directed against the Hospital under the doctrine of res ipsa loquitur, but referred only to conduct of Doctor Acklin. In his earlier dismissal of tire First Amended Complaint the trial judge held that said Count I was dismissed because, under Holcomb v. Flavin, supra, the covenant to Doctor Acklin operated to release the Hospital and that Count II was dismissed because the allegations were found not to support any presumption of negligence. Count I of the Third Amended Complaint was the same as Count I of tire First Amended Complaint and Count IV of the Thud Amended Complaint, based on res ipsa loquitur, was the same as Count II of the earlier complaint. The trial judge indicated that he was dismissing the Third Amended Complaint for the same reasons that he had dismissed the First Amended Complaint and we are thus confronted with the two count rationale as applied to a five count complaint. In dismissing all counts of the Third Amended Complaint the judge did not specifically mention new Counts II, III and V but apparently dismissed them under, the persuasion of Holcomb v. Flavin, 34 Ill.2d 558, 216 N.E.2d 811.

The principle issue presented by this appeal is whether or not the execution of the covenant not to sue the servant, Doctor Ackhn, operates to release the master, Paris Hospital Inc., under the circumstances obtaining in this case.

A joint action against a master and his servant may be brought for injuries resulting from the negligent act of the servant for which the master is hable under the doctrine of respondeat superior, Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162. Where the liability of the master is solely vicarious it is clear that a release of the employee by the injured party will release the employer. Wagner v. C & A R.R. Co., 265 Ill. 245, 106 N.E. 809.

Under Illinois law a covenant not to sue does not have the same legal effect as a release, and has no effect on the liability of other wrongdoers not parties to the covenant. A covenant not to sue one of several joint tortfeasors does not automatically release the others. (Chicago and A. R.R. Co. v. Averill, 224 Ill. 516, 79 N.E. 654; Aiken v. Insull, 122 F.2d 746.) Whether an instrument is construed to be a covenant not to sue depends upon the language used, tire substance of the agreement, and the intention of the parties. (A. P. Freund Sons v. Vaupell, 30 Ill.App.2d 271, 174 N.E.2d 882.) The underlying principle being that a person is only entitled to one full compensation for his injuries, Hulke v. International Harvester Mfg. Co., 14 Ill.App.2d 5, 142 N.E.2d 717.

The appellees, in urging that this covenant not to sue operated to release them from liability, relies, as did the trial court, upon Holcomb v. Flavin, 34 Ill.2d 558, 216 N.E.2d 811, and specifically upon the following language which appears on page 565 of the opinion: “# * * the covenant not to sue the servant or agent releases the master or principal and we so hold.” However, the court in Holcomb also commented “As pointed out in its opinion, four of the cases cited by the Appellate Court in support of its conclusion involved covenants containing specific reservations of the right to proceed against the master * * *. The covenant herein is a standard covenant not to sue containing no reservations of rights against others * * *. No mention is made in the covenant of the defendants in this suit.” We construe the holding in Holcomb to be more narrow in its application than contended by the appellees. More specifically we view the holding in Holcomb to be that a covenant not to sue the servant releases the master provided there is no reservation of right to proceed against the master. Our view is supported by the language in American National Bank and Trust Co. v. Pennsylvania R.R., 40 Ill.2d 186, 238 N.E.2d 385, where the Court said at page 192, “There was no reservation of any right to proceed against the master in the Holcomb case, a matter which was carefully pointed out in the opinion of this court.” In the American National Bank case a lessor and lessee were sued, judgment obtained and a covenant not to enforce the judgment given to the lessee. The liability of the lessor was vicarious. The order of court authorizing settlement with the lessee recited that tire guardian “# ® # may not and shall not execute any document which sets forth, constitutes, or may be construed as a release of any of said railroad companies against whom judgment has been entered, or which might affect in any way said minors right to proceed against * * The court held that the covenant, under these circumstances, did not operate as a release.

The defendants also rely upon Gramm v. Armour and Co., 132 Ill.App. 2d 1011, 271 N.E.2d 52. There plaintiff had given a covenant not to sue the servant which contained an express reservation of right to proceed against the master. The Appellate Court, relying on the Holcomb case, held that the covenant extinguished the right to proceed against the master, and in referring to the reservation of right the cotut said, “The Holcomb case does not attach any particular significance to such distinctions * * We note that tire opinion in Gramm contains no reference to the holding in American National Bank and Trust Co. v. Pennsylvania R.R., 40 Ill.2d 186, 238 N.E.2d 385, and it seems clear from the language above quoted from the American National Bank opinion that distinctions such as the reservation of right and the recital that the covenant is given as a compromise and not in full settlement are not only of “particular significance” but in fact controlling. For these reasons we respectfully submit that Gramm is not controlling.

In the instant case we see no reason why the expressed intent of the parties, clearly manifested during the proceedings had in open court on December 20, 1966, and embodied in the Courts order of that date, as well as in the covenant itself, should not be given the effect envisaged by them. We see no rule of law or public policy which inhibits such a result.

The words “with prejudice” appear in the covenant, the stipulation, and the order of dismissal in the instant case. The trial court said it would proceed as though these words were not present because it believed other reasons determined the result. However, it cited Bank of America v. Jorjorian, 303 Ill.App. 184, 24 N.E.2d 896 and it is fairly inferrable that the trial judge was of the opinion that the dismissal of the suit against Doctor Acklin “with prejudice” would bar subsequent action against Paris Hospital, Inc. Jorjorian held that the words “with prejudice” are as conclusive of the rights of the party as if the suit had been prosecuted to final adjudication adverse to the plaintiff. Generally, a plaintiff may dismiss the action as to one or more of the defendants and continue as to other defendants even where the defendants are sued jointly. (Goldberg, v. Capitol Freight Lines, 382 Ill. 283, 47 N.E.2d 67.) The primary purpose of permitting the dismissal of a defendant is to protect the defendant whose dismissal is sought, no other defendants who happen to be in the case. Gilliam v. Agar Packing Co., 67 Ill.App.2d 235, 216 N.E.2d 504.

The words “with prejudice” which appear in the covenant, the stipulation, and the order of dismissal in the instant case were clearly utilized to preclude the plaintiff from further proceeding against Doctor Acklin and were simply for the protection of that covenantee who had purchased his peace. That inclusion and use of the words in this context did not destroy the underlying cause of action. Gilliam v. Agar, supra.

The order dismissing Counts I and III of the Third Amended Complaint is reversed since we hold that the covenant not to sue did not operate to release the defendant Hospital. The order dismissing Counts II and V is reversed since they are grounded on the alleged negligence of Nurse Bostick and in no event affected by the covenant given to Doctor Acklin. The trial court was correct in holding that the doctrine of res ipsa loquitur is not applicable to the facts plead in Count IV and the order dismissing Count IV is affirmed. We remand for further proceedings not inconsistent with the views herein expressed.

Affirmed in part, reversed in part and remanded.

CRAVEN, P. J„ and SMITH, J., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Harold C. Moist et al., Plaintiffs-Appellants, v. The County of Du Page, Defendant-Appellee.
    (No. 71-357;
    Second District
    March 23, 1973.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellants.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

This is an appeal from a judgment declaring the provisions of the zoning ordinance of Du Page County valid as it applies to plaintiffs’ land located at the northwest comer of Illinois Routes 53 and 56 classified R-2 (single family residential).

Plaintiffs contracted to sell their property to Yale Development Co. subject to the condition that it be rezoned for use as an automobile service station. After denial of plaintiffs’ application by the Zoning Board of Appeals of Du Page County, and later by the County Board of Supervisors, plaintiffs brought this action.

The subject property consists of approximately two acres at the northwest corner of Routes 53 and 56, having a frontage of 227 feet on Route 53, which runs north and south, and 184 feet on Route 56 (Butter-field Road), which runs east and west.. Both are heavily traveled arterial thoroughfares in central Du Page County, controlled by stop lights, with an average traffic load (at the time of trial in May, 1971) of about 53,900 vehicles entering this intersection every 24 hours. A State highway construction program proposed and in process for the intersection provides for widening and channelizing each thoroughfare with a non-mountable barrier median at each approach thereto and three 12-foot lanes approaching (one of which is a left turn storage lane) and two lanes leaving the intersection from each direction.

Across Route 56 to the south of plaintiffs’ parcel is a 45-acre tract that was rezoned in 1957 to B-2 (Business district). It has a frontage of over 1300 feet along Butterfield Road and a frontage of 1800 feet along Route 53; the north half of the parcel has been improved with a large shopping center consisting of a Jewel-Osco complex and other retail stores. In 1969 Du Page County permitted the construction and operation of an automobile service station on the southwest corner of the intersection directly across from plaintiffs’ property.

Diagonally across from the property, at the southeast corner of the intersection, is a large parcel of land which was annexed to the Village of Downers Grove and zoned M-2 by that municipality. The M-2 classification permits light manufacturing and industrial operations which is the most intensive use permitted under that ordinance with a height limitation of 75 feet.

The northeast corner is a two-acre tract improved with a single family residence which the trial judge described as “obviously untenanted”. To die east of that are public institutional uses including a park district, a commercial swimming pool, a tennis club, a public golf course, and a church.

The proposed station would use only about 35% of the parcel and would be located at the corner. There would be an 80-foot buffer zone between the service station activities and the property to the west, and an 84-foot buffer to the property to the north. There are trees, bushes and natural foliage to the west and north on the parcel which would be retained and serve as a natural screen to the parcels on the north and west; and plaintiffs would be willing to provide additional plantings if ordered to do so. They would also be willing to provide that major engine overhauls, and use of the station for an auto laundry or car wash, or for storage of automobiles or rental of trailers or the like, on the premises would be prohibited if rezoning were granted.

A zoning and planning expert testified for the plaintiffs that the proposed use represented one of the highest and best uses of the property and that its use as an automobile service station would not have a detrimental effect on the adjoining residential areas; that the traffic at this signalized intersection with its noise, congestion, and "stop-and-goes" created a more adverse effect; and that the proposed service station would not adversely affect the general health, welfare and safety of the community. Plaintiffs’ real estate expert testified that the highest and best use of the property was as an automobile service station; that as presently zoned the value of the property was $10,000 to $12,000 and if used as a service station, its value would be $100,000 to $120,000; that there would be no depreciation to any properties in the area, particularly in view of the natural screening of this parcel to the property to the north and west.

The owner of the parcel immediately to the west of plaintiffs’ property testified for the plaintiffs in support of rezoning, stating that he had abandoned plans to erect a residence on his property after the rezoning of the southwest comer across from his parcel by the County Board for a shopping center and gas station, and the rezoning of the southeast corner for manufacturing.

The only witness for the defendant County was a real estate expert. While he testified that an automobile service station would have a 10% depreciation on the residential property to the north, it was his opinion that the highest and best use of plaintiffs’ property would be commercial such as an apartment building or an automobile service station.

The trial judge in entering the order appealed from upholding the R-2 classification in the ordinance for plaintiffs’ parcel, stated that his basis was that Route 56 (the east-west highway) is a “buffer zone between this property and that which is already zoned for business”.

Almost two months later (but after notice of appeal in this case and before the filing of the record on appeal) the Du Page County Board granted a petition for rezoning of the northeast comer of the intersection so as to permit the construction and operation of an automobile service station there. (This fact was conceded by the defendant’s counsel and was brought to our attention by plaintiffs’ motion in the trial court, under Section 72 of the Civil Practice Act, to vacate the order appealed from in view of such rezoning of that corner, the result of which was to eliminate Route 56 as a buffer.)

We took with this case defendant’s motion to strike from the record on appeal plaintiffs’ motion to vacate based upon the rezoning of the northeast corner; that motion is denied.

On oral argument counsel for the defendant County was relegated to arguing that Route 53, the north-south highway, constituted a buffer with Route 56 against plaintiffs’ parcel on the northwest corner. The record would not support such a holding.

The general principles applied by the courts to test the validity of a zoning ordinance as it applies to a given parcel have been stated many times and need not be restated here. (See Atkins v. County of Cook, 18 Ill.2d 287, 292-294.) Clearly, the plaintiffs here have sustained the burden of proving that the Du Page County zoning ordinance is arbitrary, capricious and discriminatory as applied to plaintiffs’ property; the gain to the public, if any, is small compared to the hardship imposed upon plaintiffs thereby. See Pioneer Trust & Sav. Bank v. McHenry County, 41 Ill.2d 77, 85.

In view of our holding it is unnecessary to consider other contentions urged by the plaintiffs. This case is reversed and remanded with directions to enter a decree in accordance with this opinion.

Reversed and remanded with directions.

GUILD, P. J., and T. MORAN, J., concur.

       We are impelled to observe that at this point, both sides having rested, the trial judge announced that he was “astounded” by the testimony of defendant’s own witness and the “overwhelming evidence” that the highest and best use of plaintiffs’ property included a service station, or something of that nature, and that in view thereof, “this matter will be referred to the Zoning Board of Appeals for further action consistent with the testimony * * * adduced in this case” but the court retained jurisdiction and would await their action.
      We do not understand this procedure, but since the record does not include any such order and, since no objection was made by the plaintiffs, we will not consider the plaintiffs’ contention that in zoning cases a trial judge is limited to granting or denying the relief requested and has no inherent power to refer the case to the Zoning Board of Appeals. It may be noted, however, that the order appealed from was entered on plaintiffs’ motion in July, 1971 about two months after the trial was concluded.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curt Burroughs, Defendant-Appellant.
    (No. 72-75;
    Third District
    March 22, 1973.
    Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Brett Bode, State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Defendant was convicted of the theft of four tires and rims exceeding $150.00 in value.

At the trial defendant denied his connection with the offense. A signed written confession was introduced into evidence.

Evidence pertinent to this review disclosed that a police officer observed an automobile leaving a construction storage lot adjacent to an automobile dealer’s place of business at a time of day when no one was generally in the storage area. The officer chased the automobile but lost sight of it. A second police officer, in response to a call, saw a similar automobile and followed it to a point where it was found abandoned. The officers believed it was the same automobile. They could observe three old tires and one new tire in the back seat of the automobile. A check at the automobile dealership disclosed that four tires and rims had been taken from two automobiles.

The abandoned automobile was towed to the police station. The new tire with a rim was removed from the back seat. The trunk of the automobile was forcibly opened, without a search warrant, and three additional tires and rims were found. These tires were similar to the one found in the back seat of the automobile and to the four tires missing from the automobile dealership. Testimony was introduced that each tire and rim had a value of $75.00 to $90.00.

Defendant contends that the search and seizure of three tires and rims from the trunk without a warrant was illegal and they cannot be used to support a conviction of a theft of property of the value of over $150.00. Further, that the only proper evidence would be the one tire and rim in the back seat of the car. Since the value of this property would be less than $150.00, the offense would be reduced from a felony to a misdemeanor.

Defendant was represented by private counsel in the trial court and failed to move in that court for suppression of the three tires and rims. He urges that this question should be considered for the first time on review in this court, by reason of Supreme Court Rule 615, as a plain error or defect affecting substantial rights of the defendant although not brought to the attention of the trial court. We cannot agree. Under the facts of this case we feel bound by the rule that a reviewing court will not consider tire question of illegal search and seizure where it has not been raised in the trial court. People v. Harris, 33 Ill.2d 389, 211 N.E.2d 693; People v. Cassell, 101 Ill.App.2d 279, 243 N.E.2d 363; People v. Green, 36 Ill.2d 349, 223 N.E.2d 101; People v. Washington, 45 Ill.2d 477, 259 N.E.2d 276; People v. Moore, 43 Ill.2d 102, 251 N.E.2d 181; People v. Adams, 41 Ill.2d 98, 242 N.E.2d 167.

While not necessary to our decision, we are of the opinion that the search of the trunk was legal and proper and did not adversely affect any substantial right of the defendant.

Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, reviews warrantless search of automobiles. It points out that a warrantless search of an automobile may be made where the officer shall have reasonable or probable cause for believing that the automobile contains stolen or contraband articles. It further points out that it is not unreasonable to take the automobile to the police station and search it there.

In this case there was reasonable or probable cause for believing there were stolen tires and rims in the trunk of the automobile and the search at the police station, under the circumstances of this case, was not unreasonable. People v. Ricketson, 129 Ill.App.2d 365, 264 N.E.2d 220.

Judgment affirmed.

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


author: Mr. JUSTICE STOUDER

text:
    Erland A. Loving et al., Plaintiffs-Appellants, v. Manor Court, Inc., et al., Defendants-Appellees.
    (No. 72-219;
    Third District
    March 22, 1973.
    R. K. Rainey, of Princeton, for appellants.
    George S. Skinner, of Princeton, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs, Erland Loving and Margaret Loving, brought this action in the Circuit Court of Bureau County to recover their down payment on a real estate sales contract from Manor Court, Inc., Defendant. The jury returned a verdict in favor of the plaintiffs for $2,000 but pursuant to defendant’s post trial motion for judgment notwithstanding the verdict and for a new trial, the court set aside the jury’s verdict, entered judgment for the defendant and alternatively granted defendant a new trial if the judgment was not affirmed on appeal.

, On May 17, 1969, the plaintiff purchaser in a written contract agreed to purchase from the defendant a new house which was nearly completed. The purchase price of the house was $28,500 of which amount $2,000 was paid as a down payment at the time of the execution of the contract with the balance due July 1, 1969, on delivery of the deed.

The contract included the usual customary provisions incident to a house sale. Paragraph 2 of the contract which is the basis of this controversy provides:

“If prior to delivery of deed hereunder, the improvements on said premises shall be destroyed or materially damaged by fire or other casualty, Purchaser shall have the option of declaring this contract null and void and receiving a refund of the earnest money paid hereunder, or of accepting the premises as damaged or destroyed, together with the proceeds of any insurance payable to seller as a result of the destruction or damage, which proceeds the seller agrees to assign to the purchaser.”

Another paragraph of the contract provided in usual terms that if the buyers defaulted the down payment of $2,000 should be retained by the seller as liquidated damages.

A few days after tire execution of the contract there were two heavy rain storms within a period of about a week which caused water to enter the premises. According to defendant the cause of the entry of the water was the fact flashings had riot as yet been installed and caulking of some of the windows had not been completed.

The purchaser after surveying the results of the rain storms, concluded that there had been material damage to the house. He thereupon notified the seller that he had elected to declare the contract void under the provision of paragraph 2 quoted above and requested the return of his down payment. Such demand was refused by the seller and this action followed.

As indicated above the jury returned a verdict in favor of the plaintiff for $2,000, the amount of his down payment but notwithstanding such verdict the court entered judgment in favor of the defendant.

On this appeal plaintiff argues that the court erred in its application pf the Pedrick rule. (Pedrick v. The Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) According to plaintiff considering all of the evidence in its aspect most favorable to the plaintiff it did not so overwhelmingly favor the defendant that no contrary judgment could stand. Defendant on the contrary argues that the evidence properly supports the court’s action in entering the judgment in its favor notwithstanding the jury’s verdict.

As a result of the first rain storm, according to plaintiff’s testimony, there was substantial water damage to plastered ceilings and walls, to the wall to wall carpeting and to the basement walls. After the second rain plaintiff indicated that there was evidence that the water had again affected the plaster and had accumulated in tire basement to a depth of four inches, the carpeting being rolled up, although soaked. He observed several cracks, about four, in the basement walls which appeared after the rain had leaked into the basement, although according to his testimony, there may have been one crack in the wall at the time of the execution of the sales contract. Shortly after inspecting the premises after the rain storms had occurred, plaintiff notified defendant of his election and he did not thereafter inspect the premises.

According to defendant and its evidence, the visible effects of the water damage to the plaster had been eliminated by painting, the carpeting had dried out and any stains had disappeared and finally the cracks in the basement wall had been filled at a total cost for labor and material of $28.00.

Plaintiff argues that there are reasonable inferences which may be drawn from the evidence supporting his contention that the damage to the house was “material” and the defendant just as vociferously argues the contrary. In other words the defendant argues and the trial court agreed with such argument, that as a matter of law the damage could not be considered “material”.

It is our conclusion that the arguments of the parties demonstrate that a jury question was presented and consequently the jury’s resolution of the factual issues should not have been disturbed. Defendant claims the damage to the basement walls was superficial, that there was no visible damage to the plaster after the painting had occurred and the carpet was not stained after it dried out. On the other hand the plaintiff claims the cracks in the basement wall were not superficial even though the repairs themselves might have been considered superficial. Additionally plaintiff argues that the damage to the plaster and in particular its future strength could neither be discounted or eliminated by a claim that the stains had been covered with paint. Nor according to plaintiff, could the damage to carpet be discounted by indicating that the stains had disappeared.

The parties have referred us to several definitions of “material” but we find it unnecessary to adopt any particular definition of the term. We believe that under the circumstances of this case the evidence is such that a jury might well have concluded that the damage was serious and substantial notwithstanding the claim of defendant that it was minor or superficial.

Finding as we do that the evidence presented a factual issue properly submittable to and resolved by the jury we believe the court not only erred in entering judgment notwithstanding the verdict but also believe there is no reason for awarding the defendant a new trial.

For the foregoing reasons the judgment of the Circuit Court of Bureau County is reversed and remanded with directions that the court enter judgment in favor of the plaintiff on the verdict of the jury.

Judgment reversed and remanded.

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


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Marshall Sauder, Defendant-Appellant.
    (No. 72-232;
    Third District
    March 22, 1973.

      Richard Kuhlman, of Chicago, for appellant.
    Edward Petka, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Marshall Sauder, an inmate of the Illinois State Penitentiary at Joliet, was charged with having murdered Duane Tucksen, another inmate, while both of them were in the prison hospital. Three other inmates testified against the defendant at his trial. The jury found him guilty, and he was sentenced by the Circuit Court of Will County, Illinois, to serve a term of from 100 to 150 years. The defendant has appealed.

The defendant claims that he was not proved guilty beyond a reasonable doubt. He argues that the testimony of the three criminals who testified against him should be accorded little credibility, because of their having been convicted of infamous crimes and because of inconsistencies and implausibilities in their stories. He argues also that prejudicial exhibits were erroneously admitted, and that a presumption in his favor should exist because of the State’s failure to call any of three other witnesses who supposedly had first-hand knowledge of his guilt.

On the night of the murder the victim, Duane Tucksen, occupied a private room on the second floor of the prison hospital. He died as a result of receiving a blow on the head evidently inflicted by a fairly heavy instrument with a sharp edge. A metal bar with blood on it was subsequently found in the second floor washroom, and bloody pajamas were discovered thereafter. At the time of the murder the defendant occupied a bed in the general dormitory ward on the second floor, and other inmates were housed on the second and third floors. At that time the door of Tucksen’s room was not locked, there was no guard on his floor, and apparently any of the other inmates could have tilled him.

At the defendant’s trial, three other inmates of the penitentiary testified against him. One of them was Raymond Ribaudo, who had been convicted of forgery and arson. Ribaudo testified that on the night of the murder he was awakened by a scream, went to the second floor washroom, saw the defendant before a sink with blood on his pajamas, was told by the defendant to be quiet or he would get the same thing, and shortly afterwards saw the defendant waiting down the hall wearing clean pajamas. The defendant questions the credibility of this testimony, pointing out that Ribaudo had tuberculosis and was prohibited from leaving his room, that he was not wearing his glasses when he went to the washroom, that he was standing more than 16 feet from whoever was in the washroom, that the light was not very bright there, that the hall was not illuminated, that Ribaudo subsequently wrote a letter to prison officials saying he didn’t know anything about the murder, and that in the stories of the other witnesses the defendant did not mention meeting Ribaudo. The State replies that Ribaudo went to the washroom because he did not like to use the bucket in his room, that with limited light it was possible to distinguish between bloody and clean pajamas, that Ribaudo was frightened when he denied knowledge of the murder, and that there is no evidence that the defendant knew Ribaudo.

Another inmate testifying against the defendant was Thomas Chester Perry, who had been convicted of receiving stolen property and armed robbery. Perry testified that before the murder the defendant had showed him a metal bar that could be used to murder an inmate at the hospital, had demonstrated how it could be turned on its edge and used to hit, had said he would use it on Tucksen if he ever got the opportunity, had explained that this was to repay Tucksen for giving him a severe beating plus verbal abuse, and on five different occasions had declared his intention to kill Tucksen if he could. Perry testified, also, that after the murder the defendant confessed killing Tucksen with the aid of an inmate named Leo Lagardo, telling about the murder five different times. The defendant challenges the credibility of Perry’s testimony, also, saying there was no evidence of a confidential relationship which might explain why the defendant should confide in Perry, and that Perry’s report did not in certain respects coincide with tiróse of the other two inmates. The State responds by pointing out that a doctor’s testimony corroborated the description of the victim’s injuries related by tire defendant to Perry.

The third inmate who testified against the defendant was Eugene “Duke” Malone, who had been convicted of rape. Malone testified that the defendant had confessed Tucksen’s murder to him, also, and had told of his using a metal bar on the victim. The defendant points out to us that Malone had a particularly poor record of misbehavior in prison, and that Malone’s recital of events following the murder differed in various details from the reports given by Ribaudo and Perry, such as where and in what order the defendant encountered two other inmates named Hill and Watson, and where he changed his pajamas. The State maintains that the inconsistencies were on minor points and were based on what was related to Perry and Malone at different times by the defendant, whereas there were no inconsistencies on the main points: that Tucksen was murdered, that the defendant had a motive, a plan, and an opportunity to kill Tucksen, and that the defendant afterwards confessed the killing, both to Perry and to Malone.

In considering whether the State proved the defendant guilty beyond a reasonable doubt, we are guided by the rules stated by the Illinois Supreme Court in People v. Sumner, 43 I11.2d 228, 232: “It is peculiarly the province of the jury to weigh the evidence, judge the credibility of witnesses and determine the facts. A reviewing court will not set aside a jury’s verdict of guilty unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused.” Furthermore, although each of the principal witnesses had been convicted of an infamous crime, it was said in People v. Irvin, 104 Ill.App.2d 316, 326: “The only effect of the prior conviction would be to permit the jury to consider that fact in determining the credibility of that witness * * *. The credibility of the witness is a matter for the jury.” The inmates were certainly not disqualified as witnesses. (Ill. Rev. Stat., ch. 38, sec. 155 — 1.) The jury concluded that the testimony of the three inmates was credible, and accordingly found the defendant guilty. We are satisfied that the proof was sufficient to establish the defendant’s guilt beyond a reasonable doubt. Two of the inmates said he confessed, and the third said he was wearing bloody pajamas. Any discrepancies between their stories were for the jury to consider in evaluating their credibility. (See People v. Upshaw, 58 Ill.App.2d 256, 260.) It does not appear to us that the record contains such inconsistencies or implausibilities as to make the testimony unbelievable or to leave a reasonable doubt that the defendant was guilty of murdering Tucksen.

The defendant argues that the metal bar which was found, the bloody pajamas found, and a fragment of bone should not have been allowed in evidence. However, it appears that the reasons given on appeal for excluding these items were not the reason given to the trial court. An objection to evidence based upon a specified ground waives all grounds not specified, and a ground of objection not presented in the trial court will not be considered on review. People v. Canaday, 49 Ill.2d 416, 423-24.

The defendant argues also that the failure of the State to call certain key witnesses, Leo Lagardo, who supposedly helped the defendant commit the murder, and inmates Hill and Watson, who supposedly encountered the defendant immediately afterward, gave rise to an inference that their testimony would have been favorable to the defense. The State is not obligated to produce every witness to a crime, and although the failure to produce a witness may give the defendant a right to comment, it does not create a presumption that the witness’s tesimony would have been unfavorable to the State’s case. People v. Scott, 38 Ill.2d 302, 306; People v. Jones, 30 Ill.2d 186, 190; People v. Green, 118 Ill.App.2d 36, 38-39.

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

Judgment affirmed.

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